McFadden v. Ortiz et al

Filing 17

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 5 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Baxter's August 7, 2012 Order and Report-Recommendation is ADOPTED in its entirety for the reason s stated therein; and the Court further ORDERS that Plaintiff's application to proceed in forma pauperis is DENIED; and theCourt further ORDERS that Plaintiff's complaint is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B )(i)-(ii); and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and closethis case; and the Court further ORDERS that the Clerk of the Court shall serve Plaintiff with a copy of this Memorandum-Decision and Order in accordance with Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 4/26/2013. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ALEXANDER McFADDEN,
Plaintiff,
vs.

5:12-CV-1244
(MAD/ATB)

JOSE D. ORTIZ, Executive Officer Chase
JP Morgan Chase & CO., and
JAMES SIMON, Manager Chase JP
Morgan Chase & Co.,
Defendants.
____________________________________________
APPEARANCES:
ALEXANDER McFADDEN,
11-A-4995
Southport Correctional Facility
P.O. Box 2000
Pine City, New York 14871
Plaintiff pro se
JOSE D. ORTIZ
Executive Officer for
Chase JP Morgan Chase & CO.,
P.O. Box 19020
Houston, Texas 77224

JAMES SIMON
Manager for
Chase JP Morgan Chase & CO.,
270 Park Avenue
New York, New York 10017

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff pro se Alexander McFadden ("McFadden"), an inmate at the Southport
Correctional Facility ("SCF"), filed this action pursuant to 42 U.S.C. § 1983. In his complaint,
Plaintiff appears to allege that Defendants, two executives of Chase JP Morgan Chase & Co.

("Chase"), violated his constitutional rights through conduct that, in some way, involved a bank
account. See Dkt. No. 1 at ¶ 4.
On August 7, 2012, Magistrate Judge Andrew T. Baxter issued an Order and ReportRecommendation, recommending that the Court dismiss Plaintiff's complaint in its entirety with
prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5. Currently before the
Court are Plaintiff's objections to Magistrate Judge Baxter's August 7, 2012 Order and ReportRecommendation.

II. BACKGROUND
In his Order and Report-Recommendation dated August 7, 2012, Magistrate Judge Baxter
recommended that Plaintiff's motion to proceed in forma pauperis ("IFP") should be denied by
the Court and, upon review of the complaint, that this action be dismissed in its entirety with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5 at 9. Further, Magistrate
Judge Baxter recommended that if the Court approves his report, the Court should certify that any
appeal from this matter will not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See id.
Regarding Plaintiff's complaint, Magistrate Judge Baxter's Order and ReportRecommendation recommends that because there is no indication that either Defendant acted
under "color of state law," and because there are no allegations that either or both Defendants
"conspired" with any state actors to bring this action under section 1983, Plaintiff's complaint
should be dismissed. See Dkt. No. 5 at 5.
Regarding Plaintiff's claim that Defendants violated New York Penal Law by offering
false documents for filing, tampering with public records, and falsifying business records,
Magistrate Judge Baxter recommended that because there is no private right of action to enforce
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either state or federal criminal statutes, Plaintiff is barred from bringing a claim to enforce these
provisions of the New York State Criminal Law. See Dkt. No. 5 at 6.
Accordingly, Magistrate Judge Baxter recommended this Court hold that, due to Plaintiff's
failure to state a claim under 42 U.S.C. § 1983 upon which relief can be granted, combined with
the courts inability to determine what venue might be appropriate, Plaintiff's motion for IFP
should be denied, and Plaintiff's complaint should be dismissed in its entirety with prejudice
pursuant 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5 at 9.
In his "objections" to Magistrate Judge Baxter's Order and Report-Recommendation,
Plaintiff simply provides the Court with language from various cases discussing various types of
objections and the Court's authority to review unpreserved errors. See Dkt. Nos. 14, 15.

III. DISCUSSION
A.

Review of a magistrate judge's decision
If a party files specific objections to a magistrate judge's report-recommendation, the

district court performs a "de novo determination of those portions of the report of specified
proposed findings or recommendations to which objections is made." 28 U.S.C. § 636(b)(1)
(2006). However, if a party files "[g]eneral or conclusory objections or objections which merely
recite the same arguments [that were presented] to the magistrate judge," the court simply reviews
those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846,
*1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). At the conclusion of 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).

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B.

In Forma Pauperis application
In order for a plaintiff to proceed without payment of any fees, he must first meet the

financial criteria for IFP status. See 28 U.S.C. § 1915(a)(1). The plaintiff must submit an
affidavit, including a statement of all assets, establishing his inability to pay the filing fee of
$350.00. See id.
Here, Plaintiff submitted a standard IFP application form, but answered only some of the
relevant questions. Furthermore, while Plaintiff is incarcerated and has filed a motion to proceed
IFP, his application states that, in the past twelve months, he has had income from "[b]usiness,
profession or other self employment," and has "millions of dollars" in "cash, checking or savings
accounts." See Dkt. No. 2 at ¶¶ 3, 4. Plaintiff, however, does not answer the question that asks
him to "describe the source of money and state the amount received and what you expect you will
continue to receive." See id. at ¶ 3. Plaintiff answers "yes" to the questions asking whether he
owns "real estate, stocks, bonds, securities, other financial instruments, automobile or any other
assets." See id. at ¶ 5. Once again, however, Plaintiff does not complete the question by
describing the property and stating its value. See id. Lastly, the form indicates that Plaintiff only
has $9.60 in his prison account, and that during the last six months prior to this application, the
average balance in his prison account was $4.03. See Dkt. No. 2 at 2.
If Plaintiff's claims are true and he does in fact have millions of dollars and real estate or
other valuable property, then he cannot meet the financial requirements for proceeding IFP.
Generally, when plaintiff has failed to properly complete the IFP request, the court will deny IFP
without prejudice and allow plaintiff to resubmit the form with proper information. However, in
this case, based upon the inadequacy of Plaintiff's responses, combined with his failure to state a
plausible cause of action and the fact that amendment would be futile as discussed below, even if
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Plaintiff met the financial requirements for IFP, the Court would still find dismissal of this action
to be proper.

C.

Sufficiency of the complaint
1. Legal Standard
In addition to determining whether Plaintiff meets the financial criteria to proceed IFP, the

court must also consider the sufficiency of the allegations set forth in the complaint in light of 28
U.S.C. § 1915, which provides that the court shall dismiss the case at any time if it determines
that the action is (i) 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. See 28
U.S.C. § 1915(e)(2)(B)(i)-(iii).

2. Application
a. Color of state law
Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. To state a
claim under section 1983, a plaintiff must allege two elements: (1) the defendant acted under
color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a deprivation
of her rights or privileges as secured by the Constitution of the United States. See Annis v.
County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). Under extremely limited circumstances
not alleged here, private actors, such as Defendant, may be held liable under section 1983. See
White v. Monarch Pharmaceuticals, Inc., No. 08–CV–0430, 2009 WL 3068217, *1 (2d Cir. Sept.
28, 2009); see also Rendell–Baker v. Kohn, 457 U.S. 830, 838–42 (1982). The law does not reach

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private conduct, no matter how "discriminatory or wrongful." Annis, 136 F.3d at 245 (quoting
Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)).
In the present matter, Plaintiff names two executives of Chase as Defendants. Along with
being very difficult to determine what these Defendants allegedly did to Plaintiff, there is no
indication that either Defendant acted under color of state law. Moreover, the complaint does not
allege or suggest that Defendants conspired with a state actor to violate his constitutional rights.
Further, Plaintiff does not allege any conduct attributable to either Defendant sufficient to
establish their personal involvement in any alleged constitutional deprivation. See Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quotation and other citations omitted).
Based on the foregoing, the Court finds that Magistrate Judge Baxter correctly
recommended that the Court should dismiss the complaint.

b. Criminal statutes
Plaintiff states in the "Causes of Action" section of his complaint that Defendants violated
the New York Penal Law regarding falsifying business records, tampering with public records,
and offering false documents for filing. See Dkt. No. 1 (citing N.Y. PENAL LAW §§ 175.10,
175.25, and 175.35). Even if this is true, however, there is no private right of action to enforce
either state or federal criminal statutes. See Abrahams v. Incorporated Village of Hempstead, No.
08-CV-2584, 2009 WL 1560164, *8 (E.D.N.Y. June 2, 2009) (holding that dismissal of civil suit
for perjury was proper because there is no private right of action for perjury under New York
Law). Therefore, even assuming, arguendo, that Defendants violated some criminal statutes,
Plaintiff may not bring a claim based on those statutes to enforce New York Criminal Law.

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As such, Magistrate Judge Baxter correctly recommended the Court find that Plaintiff has
failed to allege a plausible cause of action.

c. Venue
Venue in federal-question cases is generally determined by 28 U.S.C. § 1391(b) which
provides that
[a] civil action wherein jurisdiction is not founded solely on
diversity of citizenship may, except as otherwise provided by law,
be brought only in (1) a judicial district where any defendant
resides, if all defendants reside in the same State, (2) a judicial
district in which a substantial part of the events or omissions giving
rise to the claim occurred, . . . or (3) a judicial district in which any
defendant may be found, if there is no district in which the action
may otherwise be brought.
28 U.S.C. § 1391(b). In this case, one of the Defendants is listed with a Houston, Texas address,
while the other Defendant is listed as having a New York City address. See Dkt. No. 1 at ¶¶ 3(a)
and (3)(b). Thus, neither of the Defendants reside, or are located, in the Northern District of New
York. Plaintiff is incarcerated at Southport Correctional Facility, located in the Western District
of New York. Therefore, since both Plaintiff and one of the Defendants are New York residents,
this case could clearly not be brought as a diversity action. Moreover, under Plaintiff's section
1983 claim, venue is not proper in the Northern District of New York. All Defendants do not
reside in the same state, neither Defendant is located in this district, and the complaint does not
allege any conduct that occurred in the Northern District of New York.
Under 28 U.S.C. § 1406, a district court faced with a case brought "laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought." 28 U.S.C. § 1406(a). The Second
Circuit has suggested that "a district court should not dismiss for improper venue on its own
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motion except in extraordinary circumstances." Concession Consultants, Inc. v. Mirisch, 355
F.2d 369 (2d Cir. 1966).
In the present matter, the Court finds and agrees with Judge Baxter's Order and ReportRecommendation that this case presents precisely the extraordinary circumstances making it
proper for the Court to dismiss for improper venue sua sponte.

d. Leave to amend
When a pro se complaint fails to state a cause of action, the court generally "should not
dismiss 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." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (internal quotation and citations omitted). Of course, an opportunity to amend is
not required where "[t]he problem with [the plaintiff's] cause of action is substantive" such that
"better pleading will not cure it." Id. (citation omitted); see also Ruffolo v. Oppenheimer & Co.,
987 F.2d 129, 131 (2d Cir. 1993).
Here, the Court agrees with Magistrate Judge Baxter that any attempt by Plaintiff to
amend his complaint would be futile. As discussed, although Plaintiff alleges "due process
violations," section 1983 does not permit such actions to be brought against private individuals
absent some involvement by the state. Moreover, Plaintiff does not have the right to enforce New
York State criminal statutes.
Based on the foregoing, the Court finds that Magistrate Judge Baxter correctly
recommended that the Court should dismiss Plaintiff's complaint with prejudice.

IV. CONCLUSION
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After carefully considering Magistrate Judge Baxter's Order and Report-Recommendation,
the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Baxter's August 7, 2012 Order and ReportRecommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's application to proceed in forma pauperis is DENIED; and the
Court further
ORDERS that Plaintiff's complaint is DISMISSED with prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i)-(ii); and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve Plaintiff with a copy of this
Memorandum-Decision and Order in accordance with Local Rules.
IT IS SO ORDERED.
Dated: April 26, 2013
Albany, New York

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