Cleary v. Levi Strauss

Filing 5

ORDER adopting Report and Recommendations re 4 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge David E. Peebles' November 18, 2016 Report, Recommendation, and Order is ADOPTED in its entirety; and the Court further ORDERS that Plaintiff's complaint is DISMISSED without prejudice; and the Court further ORDERS that any amended complaint must be filed within THIRTY (30) DAYS from the date of this Order; and the Court further ORDERS that if Plaintiff fails to file an amended complaint within THIRTY (30) DAYS from the date of this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case, without any additional action by this Court; 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 2/27/17. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SCOTT E. CLEARY,
Plaintiff,
vs.

3:16-cv-01315
(MAD/DEP)

LEVI STRAUSS,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

SCOTT E. CLEARY
80 Pratt Avenue
Johnson City, New York 13790
Plaintiff Pro Se
Mae A. D'Agostino, U.S. District Judge:
ORDER
On November 3, 2016, Scott E. Cleary ("Plaintiff") commenced this action pro se against
Levi Strauss ("Defendant"). See Dkt. No. 1. Plaintiff filed a series of documents and an
application to proceed in forma pauperis ("IFP"), but did not clearly identify any of the
documents that he filed as a complaint. See Dkt. Nos. 1, 2. Generally, Plaintiff's documents
relate to an allegation that Defendant Levi Strauss "stole" his patent, identified as "Trouser Safety
Pocket – Patent [No.] US 6,374,421" around August of 2001. See Dkt. No. 1 at 1. Plaintiff also
appears to complain of mail tampering. See id.
In a November 18, 2016 Report, Recommendation, and Order, Magistrate Judge David E.
Peebles granted Plaintiff's application to proceed IFP and recommended that Plaintiff's complaint
be dismissed with leave to amend. See Dkt. No. 4 at 7, 9. Specifically, Magistrate Judge Peebles

found that Plaintiff's submissions provide no clear legal basis upon which he can assert a
cognizable cause of action. See id. at 7.
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.
(citation omitted).
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
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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).
Plaintiff has not filed objections in this case.
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
In the present matter, Magistrate Judge Peebles correctly determined that Plaintiff's
submissions do not satisfy either the requirements of Rule 8 of the Federal Rules of Civil
Procedure or the pleading requirements articulated by the Supreme Court in Twombly and Iqbal.
The documents Plaintiff submitted include: (1) a letter addressed to "The San Juan Star"; (2) a
letter addressed to Plaintiff from then-New York Senator Hillary Clinton; (3) copies of postal
mail receipts; (4) a copy of the first page of U.S. Patent No. 6,374,421; (5) a copy of an
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advertisement for men's Dockers pants; (6) a letter addressed to Plaintiff from Defendant Levi
Strauss' consumer relations specialist; (7) a news article dated March 30, 2007; and (8) a letter
that Plaintiff wrote dated April 2, 2005. See id. at 1-10. Plaintiff neither filed a complaint nor
distinctly asserted any legal claim in any of his submitted documents. See id. Even construing
Plaintiff's submissions liberally, none of his documents sufficiently state a claim upon which
relief can be granted. Therefore, Plaintiff's complaint is dismissed.
Ordinarily, 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)); see also Fed. R. Civ. P.
15(a)(2) ("The court should freely give leave when justice so requires."). "'[T]he district court has
discretion whether or not to grant leave to amend, and its decision is not subject to review on
appeal except for abuse of discretion.'" Shomo v. New York, 374 Fed. Appx. 180, 182 (2d Cir.
2010) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)). An opportunity to amend
is not required where "the problem with [plaintiff's] causes of action is substantive" such that
"better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation
omitted). As the Second Circuit has explained, "[w]here it appears that granting leave to amend
is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted).
Here, Magistrate Judge Peebles correctly determined that Plaintiff could conceivably
amend his filings to state a cognizable cause of action. See Dkt. No. 4 at 9. Therefore, leave to
amend is granted, and any amended complaint must be filed within thirty days of this Order.

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Having carefully reviewed Magistrate Judge Peebles' Report, Recommendation, and
Order, Plaintiff's submissions, and the applicable law, and for the above-stated reasons, the Court
hereby
ORDERS that Magistrate Judge David E. Peebles' November 18, 2016 Report,
Recommendation, and Order is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED without prejudice; and the Court
further
ORDERS that any amended complaint must be filed within THIRTY (30) DAYS from
the date of this Order;1 and the Court further
ORDERS that if Plaintiff fails to file an amended complaint within THIRTY (30) DAYS
from the date of this Order, the Clerk of the Court shall enter judgment in Defendant's favor and
close this case, without any additional action by this Court; 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: February 27, 2017
Albany, New York

Any amended complaint must be a complete pleading that supercedes the original
complaint in all respects and does not incorporate by reference any portion of the original
complaint. Moreover, Plaintiff must comply with Rules 8(a) and 10(b) of the Federal Rules of
Civil Procedure, which require, among other things, that the amended complaint contain a short
and plain statement of each claim showing that Plaintiff is entitled to relief and that the claims be
stated concisely in numbered paragraphs.
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