McFadden v. New York State Division of Parole et al
Filing
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ORDER granting 3 Motion for Leave to Proceed in forma pauperis and dismissing complaint with leave to amend: For the reasons stated in the attached Order, plaintiff's complaint against defendants New York State Division of Parole, Dep artment of Correction, Nassau County Correction, Rikers Island, Nicole Canto, and Irwin Davies is dismissed. 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A. No summons shall issue as to these defendants.Plaintiff shall have thirty (30) days from t he date of this Order to file an amended complaint setting forth his claims against each defendant named in the amended complaint. If plaintiff fails to comply with this Order within the time allowed, this action will be dismissed and judgment shall enter. If submitted, the amended complaint will be reviewed for compliance with this Order and for sufficiency under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A. The Clerk of Court shall mail a copy of this Memorandum and Order to the plaintiff and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 12/27/2012. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BRANDON MCFADDEN,
Plaintiff,
MEMORANDUM AND ORDER
12-CV-6075 (RRM)(VVP)
- against NEW YORK STATE DIVISION OF PAROLE;
DEPARTMENT OF CORRECTION; NASSAU
COUNTY CORRECTION; RIKERS ISLAND;
NICOLE CANTO; IRWIN DAVIES,
Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff, currently incarcerated at Rikers Island, brings this pro se action, pursuant to 42
U.S.C. § 1983, alleging that his “double je[o]pardy rights” have been violated by defendants.
Plaintiff’s request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915 solely
for the purpose of this Order and plaintiff is afforded thirty days to file an amended complaint as
set forth below.
BACKGROUND
It appears that plaintiff alleges that the defendants have made a record-keeping error and
assigned him a DIN (Department Identification Number used by the New York State Department
of Corrections) from a sentence that he has served. He alleges that this violates his double
jeopardy rights and that he learned of the error on August 10, 2011.
The complaint alleges the following facts:
While I was waiting on my appeal, I was sent a pi[e]ce of paper work form parole
stating that I maxed out on my 06R1566 Din number. Now after I got a direct
appeal, case dismissed from the 09 number when I was release how am I given
back a number that I maxed out on that is a violation of my double je[o]pardy
rights and since my reversal I’ve I explain to parole about the situ[a]tion and
continue to report to parole for 12 months without a violation. Parole never
straighten this problem out which I explain to them numerous times, Department
of Correction also intwined [sic] there self into the situ[a]tion when they merged
with parole and incarcerated me on charges that I am out on bail on Riker’s
Island, Nassau County which are correctional facility that I am being held in both.
Complaint at ¶ II (D). Plaintiff seeks two million dollars in damages for mental anguish and pain
and suffering. Complaint at III.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915A, a district court “shall review, before docketing, if feasible or,
in any event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner’s complaint
sua sponte if the complaint is “frivolous, malicious, or fails to state a claim upon which relief
may be granted; or seeks monetary relief from a defendant who is immune from such relief.”
Id.; Liner v. Goord, 196 F.3d 132, 134 & n.1 (2d Cir. 1999) (noting that under PLRA, sua sponte
dismissal of frivolous prisoner complaints is not only permitted but mandatory).
Further, under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma
pauperis action where it is satisfied that the action is “(i) frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” A complaint fails to state a claim on which relief can be granted if,
taking all allegations contained in the complaint to be true, it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Shakur
v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004).
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However, a court must construe a pro se litigant’s pleadings liberally, see Chavis v.
Chappius, 618 F.3d 162, 171 (2d Cir. 2010), especially when those pleadings allege civil rights
violations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1,
537 F.3d 185, 191-93 (2d Cir. 2008). A pro se complaint should not be dismissed without
granting a pro se plaintiff leave to amend “at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795 (2d Cir. 1999) (per curiam).
Although courts must read pro se complaints with “special solicitude” and interpret them
to raise the “strongest arguments that they suggest,” Triestman v. Federal Bureau of Prisons, 470
F.3d 471, 474-76 (2d Cir. 2006) (internal quotation marks omitted), a complaint must plead
enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citation omitted). While
“detailed factual allegations” are not required, “[a] pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.” Id. (quoting
Twombly, 550 U.S. at 555). Similarly, a complaint is insufficient to state a claim “if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at
557).
DISCUSSION
A. No Constitutional Violation
Plaintiff files this action pursuant to 42 U.S.C. § 1983. In order to maintain a claim under
42 U.S.C. §1983, plaintiff must allege that (1) “the conduct complained of must have been
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committed by a person acting under color of state law,” and (2) “the conduct complained of must
have deprived a person of rights, privileges or immunities secured by the Constitution or laws of
the United States. Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). As a threshold matter,
analysis of a claim brought under Section 1983 begins with identification of the precise
constitutional right allegedly violated. See Baker v. McCollan, 443 U.S. 137, 140 (1979).
Plaintiff alleges that assigning him an old “maxed out” DIN number violates the
prohibition against double jeopardy contained in the United Sates Constitution. Plaintiff
misapprehends Double Jeopardy. The Double Jeopardy Clause of the Fifth Amendment
provides that no person “shall . . . be subject for the same offense to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. The Clause “protects against a second prosecution for the
same offense after acquittal. It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the same offense.” Ohio v.
Johnson, 467 U.S. 493, 498 (1984) (citing Brown v. Ohio, 432 U.S. 161, 165 (1977)); see also
Morris v. Reynolds, 264 F.3d 38, 49 (2d Cir. 2001) (“[T]he double jeopardy bar prohibits not
only multiple punishments for the same offense, but also a second prosecution following
conviction.”). Plaintiff does not allege that he is serving his 2006 sentence a second time, only
that he “was given back a number that I maxed out on.” The complaint, as currently stated, does
not allege a constitutional violation.
B. Leave to Amend
However, in an abundance of caution and because it is unclear what 42 U.S.C. § 1983
claim plaintiff may be trying to allege, plaintiff is afforded thirty days to submit an amended
complaint. His amended complaint must comply with Federal Rule of Civil Procedure 8.
Pursuant to Rule 8, plaintiff must provide a short, plain statement of claim against each
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defendant named so that they have adequate notice of the claims against them. Ashcroft v. Iqbal,
55 U.S. 662, 678 (2009) (Rule 8 “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.”). Plaintiff must provide facts sufficient to allow each defendant to have
a fair understanding of what the plaintiff is complaining about and to know whether there is a
legal basis for recovery. See Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005) (defining “fair
notice” as “ ‘that which will enable the adverse party to answer and prepare for trial, allow the
application of res judicata, and identify the nature of the case so that it may be assigned the
proper form of trial.’ ”) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)); Ricciuti v.
New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Plaintiff is afforded thirty days
to file an amended complaint in which he complies with Federal Rule of Civil Procedure 8. See
Ashcroft v. Iqbal, 55 U.S. at 678 (a claim will be considered plausible on its face “when the
plaintiff pleads factual content that allows the court to draw reasonable inference that the
defendant is liable for the misconduct alleged”). Plaintiff must connect the facts to the
defendants so that the defendants will have notice of the claim against them as required by
Federal Rule of Civil Procedure 8.
CONCLUSION
Accordingly, plaintiff’s complaint against defendants New York State Division of Parole,
Department of Correction, Nassau County Correction, Rikers Island, Nicole Canto, and Irwin
Davies is dismissed. 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A. No summons shall issue as to
these defendants.
Plaintiff shall have thirty (30) days from the date of this Order to file an amended
complaint setting forth his claims against each defendant named in the amended complaint. Any
such amended complaint shall be captioned “Amended Complaint,” and bear the same docket
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number as this Order. Plaintiff is advised that the amended complaint will completely replace
the original complaint. If plaintiff fails to comply with this Order within the time allowed, this
action will be dismissed and judgment shall enter. If submitted, the amended complaint will be
reviewed for compliance with this Order and for sufficiency under 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A.
The Court certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for purpose of
an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court shall mail a copy of this Memorandum and Order to the plaintiff and
note the mailing on the docket.
SO ORDERED.
Dated: Brooklyn, New York
December 27, 2011
Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge
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