DeSantis v. Seager

Filing 4

REPORT-RECOMMENDATION & ORDER: It is Recommended that the # 1 Complaint filed by David DeSantis be dismissed and that plaintiff may file an amended complaint within 30 days of the filing date of any Order adopting this R&R. Further Recommended that if plaintiff does not timely file an amended complaint the Clerk shall enter judgment dismissing this action. It is Further Recommended that upon the filing of an amended complaint, the file be returned to the Court for further review. Failure to o bject to this Report by 6/3/2009 will preclude appellate review. It is ORDERED that the # 2 Motion for Leave to Proceed in forma pauperis be Granted. Signed by Magistrate Judge George H. Lowe on 5/19/2009. Case Review Deadline 6/8/2009. {Clerk has served a copy of this Report-Recommendation & Order upon plaintiff by regular mail} (mae)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK DAVID DESANTIS, Plaintiff, v. STATE OF NEW YORK and JUDGE KIMBERLY SEAGER, Defendants. APPEARANCES DAVID DESANTIS Plaintiff pro se 12 Schuyler Street, Apt. 104 Oswego, NY 13126 GEORGE H. LOWE, United States Magistrate Judge REPORT-RECOMMENDATION & ORDER The Clerk has sent to the Court for review a pro se complaint submitted for filing by Plaintiff David DeSantis, together with an application to proceed in forma pauperis. (Dkt. Nos. 1 and 2.) Plaintiff alleges that his constitutional rights were violated by Kimberly Seager, a Family Court Judge in Oswego, New York, on January 16, 2009. Dkt. No. 1. Plaintiff alleges that during a court proceeding involving a "support matter," it became apparent that Judge Seager "did not like" the fact that Plaintiff had dismissed three attorneys. Id. at pp. 2-3. He also alleges that Judge Seager informed Plaintiff that if he was unable to obtain legal representation, he would have to represent himself. Id. Plaintiff further complains that Judge Seager advised some other individual to obtain an attorney for a future court proceeding. Id. at p. 3. Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that ­ . . . (B) the action . . . (i) is 5:09-CV-0530 (NAM/GHL)

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, the court has a responsibility to determine whether a complaint may be properly maintained in this district before it may permit a plaintiff to proceed with an action in forma pauperis. See id. The court also has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond. Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). Plaintiff named Kimberly Seager, a Family Court Judge in Oswego, New York, as a Defendant. The allegations against Judge Seager relate to actions taken by the judge in her official capacity. The law in this Circuit clearly provides that "[j]udges enjoy absolute immunity from personal liability for 'acts committed within their judicial jurisdiction.'" Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994) (quoting Pierson v. Ray, 386 U.S. 547 (1967)). "The absolute immunity of a judge applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Young, 41 F.3d at 51 (internal quotation marks omitted). Accordingly, Judge Seager should be dismissed from this action. Plaintiff also named the State of New York as a Defendant. However, to the extent that he seeks monetary damages from this Defendant, Dkt. No. 1 at 5, the Eleventh Amendment to the United States Constitution bars such claims. See U.S. Const., Amend. XI; Hans v. Louisiana, 134 U.S. 1 (1890); Farid v. Smith, 850 F.2d 917, 920-21 (2d Cir. 1988) (citations omitted); Amankwaah v. Cayuga County, No. 92-CV- 1103, 1992 WL 296459, at *2-3 (N.D.N.Y. Oct. 16, 1992) (citations omitted). Thus, the State of New York should be dismissed from this action. -2-

In sum, the complaint fails to state a claim on which relief may be granted because both Defendants should be dismissed. Accordingly, the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e). Should Plaintiff claim that this action should not be dismissed, he is directed to file an amended complaint within thirty (30) days of the filing date of any Order adopting this Report and Recommendation. Any amended complaint, which shall supersede and replace in its entirety Plaintiff's original complaint, must allege claims of misconduct or wrongdoing against the Defendants which Plaintiff has a legal right to pursue, and over which this Court may properly exercise jurisdiction. II. Application to proceed in forma pauperis A review of Plaintiff's in forma pauperis application reveals that he may proceed in forma pauperis. See Dkt. No. 2. WHEREFORE, it is hereby RECOMMENDED, that Plaintiff's complaint (Dkt. No. 1) be dismissed; and it is further RECOMMENDED, that Plaintiff may file an amended complaint within thirty (30) days of the filing date of any Order adopting this Report and Recommendation; and it is further RECOMMENDED, that if Plaintiff fails to timely file an amended complaint, the Clerk enter judgment dismissing this action without further order of this Court due to Plaintiff's failure to comply with the terms of any Order adopting this Report and Recommendation; and it is further RECOMMENDED, that upon the filing of Plaintiff's amended complaint, the file in this matter be returned to the Court for further review; and it is further

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ORDERED, that Plaintiff's in forma pauperis application (Dkt. No. 2) is granted;1 and it is further ORDERED, that the Clerk serve a copy of this Report-Recommendation & Order on Plaintiff. Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: May 19, 2009 Syracuse, New York

Plaintiff should note that although the application to proceed in forma pauperis has been granted, Plaintiff will s till be required to pay fees that he may incur in this action, including copying and/or witness fees.

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