Barber v. State of New York

Filing 4

REPORT AND RECOMMENDATIONS& ORDER: as to Tracy Barber. It is Ordered that the # 2 MOTION for Leave to Proceed in forma pauperis is GRANTED. It is Recommended that pursuant to the Court's review under 28 USC § 1915, the # 1 Complaint be DISMISSED for failure to comply with the pleadings standards, naming a defendant protected by sovereign immunity, and relying on statutes which do not confer a private right of action. (Objections to R&R due by 8/25/2014, Case Review Deadline 8/29/2014) Signed by Magistrate Judge Christian F. Hummel on 8/8/2014. (Attachments: # 1 Exhibit A - Unpublished Caselaw) {Copy served upon pro se plaintiff by regular mail} (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TRACY BARBER
Plaintiff,
v.

No. 14-CV-970
(TJM/CFH)

STATE OF NEW YORK,
Defendant.

APPEARANCES:

OF COUNSEL:

TRACY BARBER
Plaintiff, Pro Se
189 Pearl Street
Corning, New York 14830
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION and ORDER
The Clerk has sent to the Court for review a complaint filed by pro se plaintiff Tracy
Barber. Compl. (Dkt. No. 1). Barber has not paid the filing fee and instead seeks
permission to proceed with this matter in forma pauperis (“IFP”). Dkt. No. 2.

II. DISCUSSION
A. In Forma Pauperis Application
Turning first to Barber's IFP Motion, after reviewing the entire file, the Court finds that
Barber may properly proceed with this matter IFP.

B. Plaintiff's Complaint
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks
to proceed IFP, "the court shall dismiss the case at any time if the court determines that . . .
the action or appeal (i) is 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." 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a
plaintiff may properly maintain his complaint before permitting him to proceed with his
action.
Additional pleading guidelines are provided in the Federal Rules of Civil Procedure.
Specifically, Rule 8 provides that a pleading which sets forth a clam for relief shall contain,
inter alia, "a short and plain statement of the claim showing that the pleader is entitled to
relief." See FED. R. CIV. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation
marks and citations omitted). Rule 8 also requires the pleading to include:
(1) a short and plain statement of the grounds for the court’s
jurisdiction . . .;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought . . . .
FED. R. CIV. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make
clear that each allegation contained in the pleading “must be simple, concise, and direct.”
Id. at 8(d).
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Moreover, Rule 10 of the Federal Rules of Civil Procedure provides in pertinent part
that:
[a] party must state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.
A later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded on
a separate transaction or occurrence – and each defense other
than a denial – must be stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification
for referring to a particular paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted).
A complaint which fails to comply with the pleading requirements “presents far too a
heavy burden in terms of defendants’ duty to shape a comprehensive defense and provides
no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v.
Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a
complaint does not comply with the requirement that it be short and plain, the court has the
power, on its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for
those cases in which the complaint is so confused, ambiguous, vague, or otherwise
unintelligble that its true substance, if any, is well disguised.” Id. (citations omitted). In such
cases of dismissal, especially with respect to a pro se complaint, the court generally affords
the plaintiff leave to amend the complaint to state a nonfrivolous claim. Simmons v.
Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
A review of the complaint reveals that the pleading clearly fails to satisfy the
requirements of the above-mentioned Federal Rules. The complaint is, at best, vague,
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disjointed and confusing. Barber requests an investigation pursuant to the Racketeer
Influenced and Corrupt Organizations (hereinafter “RICO”) Act, 18 U.S.C. §§ 1961 et seq.
for apparent allegations of corruption. Compl. at 1. Barber “was unable to contact lawyer
who name omitted various reasons for providing protection and recouping loss exceeding
one million U.S. Dollars from lottery winning release of personal property.” Id. at 2. Barber
then lists various statutes, providing elements of the statutes, but failing to identify any facts
or events.
Barber’s complaint is so lacking in factual allegations that the Court is simply unable to
discern any plausible claim within the Court’s jurisdiction. It is impossible to decipher who
precisely Barber was damaged by, when that happened, or what Barber sought from the
named defendant. Furthermore, Barber has proffered allegations against only one named
defendant that is protected from liability as a matter of law by the doctrine of Eleventh
Amendment immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98
(1984) (citing Hans v. Louisiana, 134 U.S. 1, 21 (1890)) ("[D]espite the limited terms of the
Eleventh Amendment, a federal court [cannot] entertain a suit brought by a citizen against
his [or her] own State."). There are limited exceptions whereupon an individual may sue a
State, namely where (1) “Congress has authorized such a suit in the exercise of its power to
enforce the Fourteenth Amendment . . . or [(2)] where a State has waived its sovereign
immunity by consenting to suit.” College Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 666 (1999) (citations omitted). Neither exception applies here
because the statutes which Barber identifies in her complaint do not grant individuals an
independent, private, federal cause of action, let alone waive sovereign immunity. See
Qader v. Cohen & Slamowitz, 10-CV-1664 (GBD), 2011 WL 102752, at *5 (S.D.N.Y. Jan.
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10, 2011) (“Neither 42 U.S.C. § 1987 nor 42 U.S.C. § 1988 creates a private cause of
action.”) (citing cases) (Ex. A)1; see also Redcross v. Rensselaer Cnty., 511 F. Supp. 364,
374 (N.D.N.Y. 1981) (“Section 1988 does not create an independent federal cause of
action.”) (citing Moor v. County of Alameda, 411 U.S. 693, 702 (1973)).
In sum, Barber’s complaint in its current form fails to satisfy the basic pleading
requirements and fails to state a claim for relief. In light of Barber’s pro se status, an
opportunity to amend would generally be recommended prior to outright dismissal.
However, in this instance, Eleventh Amendment immunity bars any claims Barber would
have against the State of New York. Pennhurst, 465 U.S. at 98. Therefore, amendment is
futile and unnecessary. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (finding
leave to replead would be futile where the complaint, even when read liberally, did not
“suggest[] that the plaintiff has a claim that she has inadequately or inartfully pleaded and
that she should therefore be given a chance to reframe”).

III. Conclusion
WHEREFORE, it is hereby
ORDERED that Barber’s IFP application (Dkt. No. 2) is GRANTED; and it is further
RECOMMENDED that pursuant to the Court’s review under 28 U.S.C. § 1915, Barber’s
complaint be DISMISSED for failure to comply with the pleading standards, naming a
defendant protected by sovereign immunity, and relying on statutes which do not confer a
private right of action; and it is further
1

Unpublished cases will be attached to this Report-Recommendation and Order as
Exhibits.
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ORDERED that the Clerk serve a copy of this Report-Recommendation and Order on
the parties in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the
foregoing report. Such objections shall be filed with the Clerk of the Court “within fourteen
(14) days after being served with a copy of the . . . recommendation.” N.Y.N.D.L.R. 72.1(c)
(citing 28 U.S.C. §636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993); Small v. Sec’y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

Dated: August 8, 2014
Albany, New York

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