Trisvan v. The Mildred Elley School

Filing 7

ORDER adopting Report and Recommendations re 6 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Stewart's Order and Report- Recommendation (Dkt. No. 6) is ADOPTED in its entirety for the reasons set forth herein; a nd the Court further ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without prejudice, with leave to file an amended complaint within thirty (30) days of the date of this Order; and the Court further ORDERS that, if Plaintiff fai ls to file an amended complaint within thirty (30) days of this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case, without further order of this Court; and the Court further ORDERS that the Clerk of the Court serve a copy of this Order upon Plaintiff inaccordance with Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 11/14/23. (Copy served via regular and certified mail upon plaintiff)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN TRISVAN,
Plaintiff,
vs.

1:23-CV-1123
(MAD/DJS)

THE MILDRED ELLEY SCHOOL,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

JOHN TRISVAN
150 State Street
Albany, New York 12207
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
On September 1, 2023, Plaintiff John Trisvan ("Plaintiff") commenced this action, pro se,
against the Mildred Elley School (the "School"). See Dkt. No. 1. Plaintiff alleged that the School
violated his civil rights by inducing him to apply for a loan to attend classes, but later removing
him from the courses. See id. Plaintiff also submitted an application to proceed in forma
pauperis ("IFP"). See Dkt. No. 2.
On September 29, 2023, Magistrate Judge Daniel J. Stewart issued an Order granting
Plaintiff's IFP motion. See Dkt. No. 5. Magistrate Judge Stewart issued a separate Order and
Report-Recommendation in which he reviewed Plaintiff's complaint pursuant to 28 U.S.C. §
1915(e) and recommended that Plaintiff's complaint be dismissed with leave to amend. See Dkt.
No. 6.

1

Plaintiff did not file any objections to the Order and Report-Recommendation. When a
party declines to file objections to a magistrate judge's report-recommendation, the district court
reviews the report-recommendation for clear error. See Hamilton v. Colvin, 8 F. Supp. 3d 232,
236 (N.D.N.Y. 2013). After the appropriate review, "the 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).
As Plaintiff is proceeding pro se, the Court must review his complaint under a more
lenient standard. See Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003). The Court
must "make reasonable allowances to protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983). Thus, "a document filed pro se is 'to be liberally construed,' and 'a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). "Although the court has the duty to show liberality towards pro se litigants, . . .
there is a responsibility on the court to determine that a claim has some arguable basis in law
before permitting a plaintiff to proceed with an action in forma pauperis." Moreman v. Douglas,
848 F. Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted).
Having reviewed the September 29, 2023, Order and Report-Recommendation, Plaintiff's
complaint, and the applicable law, the Court does not discern any clear error in Magistrate Judge
Stewart's recommendation. Magistrate Judge Stewart correctly determined that Plaintiff's
complaint should be dismissed because Plaintiff failed to comply with Rule 8 of the Federal Rules
of Civil Procedure and failed to state a claim for which relief could be granted. See Dkt. Nos. 1,
6; see also Laspisa v. Citifinancial Does 1 to 20, 269 F. Supp. 3d 11, 13-15 (N.D.N.Y. 2017).

2

In light of Plaintiff's pro se status, the Court will afford Plaintiff an opportunity to amend
his complaint. If Plaintiff decides to amend his complaint, he must clearly set forth the facts that
give rise to the claim, including, when possible, the dates, times, and places of the alleged
underlying acts, as well as each individual who committed each alleged wrongful act. The
revised pleading should allege facts demonstrating the personal involvement of any named
Defendant. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Finally, Plaintiff is informed
that any amended complaint will replace the existing complaint and must be a wholly integrated
and complete pleading that does not rely upon or incorporate by reference any pleading or
document previously filed with the Court. See Jeanty v. Sciortino, No. 6:22-CV-319, 2023 WL
2931863, *14 (N.D.N.Y. Apr. 13, 2023).1
Accordingly, the Court hereby
ORDERS that Magistrate Judge Stewart's Order and Report-Recommendation (Dkt. No.
6) is ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without prejudice, with
leave to file an amended complaint within thirty (30) days of the date of this Order; and the
Court further
ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of
this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case,
without further order of this Court; and the Court further

1

The Court directs Plaintiff to the instructions outlined in Magistrate Judge Stewart's Order and
Report-Recommendation. See Dkt. No. 6 at 6-7.
3

ORDERS that the Clerk of the Court serve a copy of this Order upon Plaintiff in
accordance with Local Rules.
IT IS SO ORDERED.
Dated: November 14, 2023
Albany, New York

4