Yefimova v. IRS
ORDER adopting Report and Recommendations re 16 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Peebles's June 13, 2017 Report and Recommendation (Dkt. No. 16) is ADOPTED in its entirety; and the Court further ORDE RS that Plaintiff's amended complaint is DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/11/2017. (Copy served via regular and certified mail)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
101 S. Pearl Street, Apt. E1L
Albany, New York 12207
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
On December 27, 2016, pro se Plaintiff Lyubov Yefimova commenced this action
pursuant to 42 U.S.C. § 1983 alleging that she was "robbed" by Defendant Internal Revenue
Service ("IRS")1 and requesting $10 million in damages. See Dkt. No. 1 at 3, 6. In a Report,
Recommendation, and Order dated January 5, 2017, Magistrate Judge Peebles granted Plaintiff's
motion for leave to proceed in forma pauperis ("IFP") and recommended dismissal of her
complaint. See Dkt. No. 5 at 4, 12. In an Order dated May 11, 2017, the Court dismissed
Plaintiff's complaint with leave to amend. See Dkt. No. 12 at 5.
On May 19, 2017, Plaintiff filed an amended complaint against the IRS, which, like her
original complaint, is largely incomprehensible. See generally Dkt. No. 13. In a Report and
As observed by Magistrate Judge Peebles, the Court assumes that Plaintiff intended to
refer to the Internal Revenue Service when she named "IRS" as the sole defendant in her original
and amended complaints. See Dkt. No. 5 at 2 n.1; Dkt. No. 16 at 2 n.1.
Recommendation dated June 13, 2017, Judge Peebles recommended dismissal of Plaintiff's
amended complaint with prejudice. See Dkt. No. 16 at 8. On June 16, 2017, Plaintiff filed
objections to Judge Peebles's Report and Recommendation. See Dkt. No. 17.
When reviewing a complaint under 28 U.S.C. § 1915(e), courts are guided by the
applicable requirements of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules
of Civil Procedure provides that a pleading must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8(a) "does not
require 'detailed factual allegations,' . . . it demands more than an unadorned" recitation of the
alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (other citation omitted).
To survive dismissal for failure to state a claim, a party need only present a claim that is
"plausible on its face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678 (citation omitted). In
determining whether a complaint states a claim upon which relief may be granted, "the court must
accept the material facts alleged in the complaint as true and construe all reasonable inferences in
the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, "the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Moreover, "[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
In reviewing a report and recommendation, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
As discussed, Plaintiff has filed objections in this case. Although a pro se litigant's
objections should be accorded leniency, "even a pro se party's objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate's
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument." DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (quotation
omitted); see also IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865, 2008
WL 4810043, *1 (S.D.N.Y. Nov. 3, 2008) ("To the extent . . . that the party makes only
conclusory or general arguments, or simply reiterates the original arguments, the Court will
review the Report strictly for clear error."). Here, Plaintiff's objections are essentially
indecipherable and appear to be copied verbatim from her amended complaint. See generally
Dkt. No. 17. Accordingly, the Court will review Judge Peebles's Report and Recommendation for
Plaintiff's amended complaint essentially alleges the same claims of "robbery" that were
alleged in her original complaint. See generally Dkt. No. 13. The unintelligible nature of
Plaintiff's allegations is illustrated in the following excerpts from Plaintiff's amended complaint:
This year I got a paper that I have for 2011 about 1,600 thousand
dollars. They put their interests at $ 500 persent month. Plus
penalties. Goss-they say take my car and property. Without a car I
can not bady as Yelena Vishnevetskaya broke my leg, stealing my
money, sell my organs on the plant, removed a kidney, cut part of
the liver, cut the female organs, to the plant, veins, arteries, and
I tried many times to settle, but I will not accept the office and
makes appointments. I tried 2 times to register but to no avail.
They throw up. I had no other choice but to go to court in the city,
but the city was again paid my money 1 million dollar is a thief and
prostitute Yeelen Vishnevetsky, witch was obtained with 70 ships
and more than $25 billion, I have not received a single cent. The
city funds the office of terrorists. Giving millions and billions of
dollar Yelena Vishnevetskiy that buys your judges for 20 percent,
sometimes 50 percent.
The IRS wrote me that I still owe for 2011 -207 dollars. 68 cents.
This is a robbery !!!!!!!!!!!!!!!!!!!!!!!! I proved it to you and
showed them to the IRS - robbers. I helped your country, and the
money was transferred, thieves and terrorists, for the witch
terrorism 2011. I don't odlucila for the help. Money was also
transferred to them. The U.S. government told me that I deadline to
help you a 100% refund with tax. where they are. They were
stolen again. My requirements are to pay me for all not less than
100 thousand dollars. For robbery . . . damage!!!!!!!!!!!!!
Id. at 2-5 (all errors in original).
As the Court noted in its previous Order, and as Judge Peebles noted in his Report and
Recommendation, dismissal is proper when allegations in a complaint are indecipherable and do
not assert a cognizable cause of action. See Dkt. No. 12 at 3-4; Dkt. No. 16 at 4-5. Accordingly,
Judge Peebles correctly recommended dismissal of Plaintiff's amended complaint.
Normally, a court should not dismiss a complaint filed by a pro se litigant without
granting leave to amend at least once "'when a liberal reading of the complaint gives any
indication that a valid claim might be stated.'" Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir.
2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). Here, Plaintiff was put on
notice of the deficiencies in her complaint in Judge Peebles's original Report, Recommendation,
and Order and in this Court's previous Order. Specifically, in Judge Peebles's Report,
Recommendation, and Order, he gave Plaintiff clear instructions on how to file a proper
complaint, see Dkt. No. 5 at 11-12, and the Court also referred Plaintiff to these instructions in its
previous Order, see Dkt. No. 12 at 5. Yet, Plaintiff still filed an amended complaint that suffers
from the same deficiencies as her original complaint. Moreover, there is no indication from any
of Plaintiff's filings that she has a valid claim. Accordingly, the Court agrees with Judge Peebles
that Plaintiff's amended complaint should be dismissed with prejudice.
Having carefully reviewed Magistrate Judge Peebles's Report and Recommendation,
Plaintiff's submissions, and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Peebles's June 13, 2017 Report and Recommendation
(Dkt. No. 16) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's amended complaint is DISMISSED with prejudice; and the
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 11, 2017
Albany, New York
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