Geer v. Audrey et al
MEMORANDUM AND ORDER: Geer's complaint is dismissed for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). However, as stated above, Geer may file an amended complaint as to his § 1983 retaliation clai m within thirty (30) days of this Order. If he fails to do so, the Court shall enter judgment as to that claim. 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 the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Chief Judge Carol Bagley Amon on 6/29/2015. c/m to pro se Plaintiff (Fernandez, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
CATHERINE H. TABINSKY; AUDREY I.
PHEFFER; RICHARD BROWN, 1
U.I. DISTRICT COURT e.o.N.Y.
JUL 1- 2015
AMON, Chief United States District Judge.
Plaintiff Pakenauth Geer, currently incarcerated at Washington Correctional Facility, in
Comstock, New York, brings this prose complaint under 42 U.S.C. § 1983. Geer's request for
in forrna pauperis status, pursuant to 28 U.S.C. § 1915, is granted for the limited purpose of this
Order. For the reasons set forth below, Geer's complaint is dismissed for failure to state a claim
upon which relief may be granted, but the Court grants him leave to amend his complaint as to
one of his claims.
In this complaint, Geer makes many of the same allegations he made in a separate
lawsuit, which the Court dismissed on January 23, 2014. See Geer v. Pheffer, No. 14-cv-2829
(E.D.N.Y. Jan. 23, 2015), ECF No. 6. The overlapping allegations are:(!) that Audrey Pheffer
failed to respond to Geer's Freedom of Information Law ("FOIL") request, (2) that court reporter
Catherine C. Tabinsky and others falsified a transcript in his case, resulting in the extension of
Geer also names "LT. Edwards," "Leonard H. Beebe," "Officer Chapman," and "Officer McMillan" as additional
defendants in the body of his complaint.
Out of an abundance of caution, the Court reads the various papers attached to Geer's pleadings as part of his
his sentence, and (3) that he was wrongfully convicted ofmurder. 3 (Complaint ("Comp!.") at 5.)
In his new complaint, Geer makes additional claims. First, he claims that "LT. Edwards" gave
him "a penalty for more than 40 days" that resulted from a complaint by "library officer Leonard
H. Beebe," who the complaint alleges falsely accused Geer of"curs[ing] him and ... yelling in
the law library." (Id. at 12.) Geer alleges that Edwards singled him out because he has "been
filing lawsuit[ s] against officer and officials." (!.QJ Second, "Officers Chapman and McMillan"
ordered "Officer Mcfarren" to smash Geer's typewriter "at the end of his count on April 26th,
2014." (Id. at 15.) Third, and related to the second, Geer contends that prison officials refused to
let Geer pick up a new typewriter he had ordered "because the authorit[ies] don't want [him] to
have the typewriter" because that will "prevent [him] from filing lawsuit[ s] against officers and
officials." (Id. at 21.) Geer, as in his earlier complaints, seeks (I) release from his allegedly
illegal imprisonment and (2) money damages totaling $10 million. (Id. at 8.)
ST AND ARD OF REVIEW
Under the Prison Litigation Reform Act ("PLRA"), 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. § l 915A. Upon review, a district court shall dismiss a
prisoner's complaint sua sponte ifthe 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. l (2d Cir. 1999) (noting that sua
Geer raised exactly these claims in still another complaint. See Geer v. Brown. No. 14-cv-6172 (E.D.N.Y. Oct. 20,
2014), ECF No. I. In that case. the Court also dismissed those claims as res judicata.
sponte dismissal of frivolous prisoner complaints, pursuant to the PLRA, is not only permitted
but mandatory); see also Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999).
At the pleadings stage of the proceeding, the Court must assume the truth of"all wellpleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum
Co., 621F.3d111, 123 (2d Cir. 2010) (citing Ashcroft v. Igbal. 556 U.S. 662 (2009)).
Nevertheless, a complaint must plead sufficient facts to "state a claim to relief that is plausible
on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
It is axiomatic that pro se complaints are held to less stringent standards than pleadings
drafted by attorneys, and the Court is required to construe the plaintiff's pro se complaint
liberally and construe it to raise the strongest arguments it fairly suggests. Erickson v. Pardus,
551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980). Liberal construction is
particularly important when a pro se litigant's pleadings allege civil rights violations. Sealed
Plaintiffv. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008). Finally, a prose
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) (internal quotation
I. Res Judicata
Geer's claims pertaining to his FOIL requests, the falsification of court transcripts, and
his wrongful conviction are barred by the res judicata doctrine and are dismissed. A district
court has the power to dismiss pro se complaints sua sponte on res judicata grounds. Salahuddin
v. Jones, 992 F.2d 447, 449 (2d Cir. 1993); see also Rollock v. LaBarbera, 383 F. App'x 29, 30
(2d Cir. 2010) (affirming district court's sua sponte dismissal of complaint on res judicata
grounds). Res judicata bars subsequent litigation if: "(I) the previous action involved an
adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with
them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in
the prior action." Monahan v. N.Y.C. Dep't ofCorrs., 214 F.3d 275, 285 (2d Cir. 2000).
Here, the requirements of res judicata are met. First, a dismissal pursuant to § I 915,
although not technically a dismissal on the merits, can "have a res judicata effect on
frivolousness determinations" when both the first and second complaint are brought pro se.
Cieszkowska v. Gray Line New York, 295 F.3d 204, 205-06 (2d Cir. 2002) (finding that second
pro se complaint based on same facts was barred by res judicata where original pro se complaint
was dismissed for failure to state a claim under § I 915). The second and third requirements are
plainly met. Geer is the plaintiff in both cases, and he brings precisely the same claims in this
action that he asserted in the prior action. (Compare Docket Entry I with Geer v. Pheffer, No.
14-cv-2829 (E.D.N.Y. Apr. 28, 2014), ECF No. 1.)4 Accordingly, the FOIL claim, the claim
related to transcript-falsification, and Geer's request for release from what he claims is illegal
imprisonment based on a wrongful conviction are barred by the doctrine of res judicata. They
are therefore dismissed for failure to state a claim on which relief may be granted. 28 U.S.C. §
II. § 1983 Retaliation Claim
Geer's claims pertaining to his punishment for the library incident are dismissed. "To
prove a First Amendment retaliation claim under Section I 983, a prisoner must show ... (I) that
the speech or conduct at issue was protected, (2) that the defendant took adverse action against
See also Geer v. Brown, No. 14-cv-6172 (E.D.N.Y. Oct. 20, 2014), ECF No. I (bringing same claims).
the plaintiff, and (3) that there was a causal connection between the protected speech and the
adverse action." Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009).
Here, there can be little doubt that the first and second prong are met. Geer alleges (I)
that he participated in protected conduct, to wit, filing a lawsuit, and (2) that adverse action was
taken against him, to wit, the filing of false misbehavior reports against him, which resulted in a
"penalty for more than 40 days," (Comp!. at 12), presumably a penalty of a sort that would
normally deter participation in the protected conduct. See Gill v. Pidlypchak, 389 F.3d 379, 384
(2d Cir. 2004) (finding (I) that use of prison grievance system constituted protected behavior and
(2) that false misbehavior reports that Jed to three weeks in keeplock constituted adverse action).
However, Geer has not pleaded any facts as to causation. He simply says that he was singled out
for filing "lawsuits against officers and officials." (Comp!. at 12.) He does not suggest that the
officers who acted against him knew of these lawsuits or indicated in any way that they filed the
allegedly false report because of Geer's lawsuits. Accordingly, his claim for retaliation is
dismissed for failure to state a claim. 28 U.S.C. § 1915A(b)(I). However, the Court gives Geer
leave to amend this claim to plead facts, if he can, that will satisfy the causation element.
III. § 1983 Property Deprivation Claim
Geer's typewriter claims must both be dismissed. It is well-established that a due process
claim arising from intentional property deprivation is not cognizable under § 1983 if "adequate
state post-deprivation remedies are available." Davis v. State of New York, 311 F. App'x 397,
400 (2d Cir. 1999)(quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)). "'New York in fact
affords an adequate post-deprivation remedy in the form of, inter alia, a Court of Claims action'
pursuant to N.Y. Comp. Codes R. & Regs. tit. 7, §I 700.3(b)(4)." Id. at 400 (quoting Jackson v.
Burke, 256 F.3d 93, 96 (2d Cir. 2001)); see also Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.
1996) (affirming district court's dismissal of inmate's § 1983 claim because "the confiscation of
[plaintiffs] eye-glasses did not constitute a Fourteenth Amendment violation for Joss of property
because of the availability of state court post-deprivation remedies"); Liner v. Fischer, No. 11cv-6711, 2013 WL 4405539, at *24 (S.D.N.Y. Aug. 7, 2013) (Because New York provides an
adequate post-deprivation remedy, the Joss or destruction of an inmate's property will not
support a deprivation of property claim.).
Here, Geer claims that officers smashed his old typewriter then refused to permit delivery
of the new one he ordered. (Comp!. at 15, 21.) In other words, he alleges that prison officials
deprived him of his property. The existence of an adequate post-deprivation state remedy
precludes Geer' s due process claim under § 1983, and he therefore cannot state a claim upon
which relief can be granted. 28 U.S.C. § 1915A(b)(I). The Court notes that nothing in this Order
prevents Geer from seeking remuneration for the damage to or deprivation of his property in
IV. Leave to Amend
Although the Court dismisses Geer's complaint in full, it grants him leave to amend his§
1983 retaliation claim to plead, ifhe can, the causation element. In the case of his other claims,
the Court need not afford Geer an opportunity to amend his complaint because, for the reasons
stated above, "the court can rule out any possibility ... that an amended complaint [on those
claims] would succeed in stating a claim." Gomez, 171 F.3d at 796. Should Geer choose to file
an amended complaint, he must do so within thirty (30) days of this Order. He is advised that an
amended complaint replaces the complaint currently pending before the Court in its entirety and
therefore must include all of his claims and factual allegations against all of the defendants
against whom he wishes to proceed. He should also be sure to include all defendants at the top
of his complaint. The amended complaint must be captioned "First Amended Complaint" and
bear the same docket number as this Order. Lastly, Geer is admonished to cease filing
allegations restating the claims now twice dismissed as barred by the doctrine of res judicata.
Those claims will meet the same fate if raised again.
Geer's complaint is dismissed for failure to state a claim upon which relief may be
granted. 28 U.S.C. § l 915A(b)(l). However, as stated above, Geer may file an amended
complaint as to his § 1983 retaliation claim within thirty (30) days of this Order. If he fails to do
so, the Court shall enter judgment as to that claim. 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 the purpose of an appeal. Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
s/Carol Bagley Amon
Dated: Brooklyn, New York
Chief United States District
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