Weston v. Sullivan et al

Filing 8

DECISION AND ORDER accepting Pltf's 7 Amended Complaint. Clerk to issue summons and GO 25 to Pltf for service upon named deft. Clerk to forward copy of summons and complaint to the Oneida County Attorney. Pltf directed to ascertain identity of "John Doe" deft and then seek to amend complaint. Signed by US Magistrate Judge Andrew T. Baxter on 3/1/13. [Served by mail.](sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RICHARD A. WESTON, SR.
Plaintiff,
v.

6:12-CV-1893
(MAD/ATB)

DAN PATRICK SULLIVAN, et al.,
Defendants .
RICHARD A. WESTON
Plaintiff, pro se
ANDREW T. BAXTER, United States Magistrate Judge
DECISION and ORDER
I.

Background
Plaintiff filed the original complaint in this action on December 28, 2012,

together with a motion for leave to proceed in forma pauperis (“IFP”) and a motion for
appointment of counsel. (Dkt. Nos. 1-2). After reviewing the complaint and the two
motions, I ordered plaintiff to either pay the filing fee or submit additional information
to the court regarding his finances for purposes of the IFP motion. (Dkt. No. 5). In the
alternative, I gave plaintiff the opportunity to pay the filing fee. (Id.) I also gave
plaintiff the opportunity to file an amended complaint, clarifying his constitutional
claims. (Id.)
On January 22, 2013, plaintiff paid the filing fee as an alternative to submitting
the additional financial information, and he was granted an extension of time to file
the amended complaint. (Dkt. Nos. 6 & Text Order dated 1/3/13). On February 22,

2013, plaintiff filed his amended complaint, and the clerk has sent it to me for my
review, pursuant to my January 3, 2013 order. (Dkt. Nos. 5, 7).
II.

Complaint and Amended Complaint
A.

Original Complaint

Plaintiff’s original complaint seemed to allege that he was denied the ability to
obtain a “concealed carry” pistol permit for improper reasons. Plaintiff alleged that he
sold a .380 pistol on August 24, 2011. (Complaint (“Compl.”) ¶ 4; Facts) (Dkt. No. 1).
Plaintiff stated that he went to get an amendment to his pistol license and spoke with
defendant John Doe. (Id.) Defendant Doe told plaintiff that for twenty dollars, his
license would be updated, but when plaintiff requested a “concealed carry” permit,
defendant Doe told him “[i]n an unbelievable tirade,” that “no cc are issued under any
circumstances.” (Id.) Plaintiff alleged that after he tried repeatedly to “clear up” the
matter, defendant Doe threatened that he “would have busted [him] on 4 felony stops.”
Plaintiff stated that as he was leaving the office he “noticed” defendant Dan Sullivan1
seated by the inside entrance of the office. (Id.)
Plaintiff then listed his “Causes of Action” in the original complaint. These
“Causes of Action” alleged that defendant Doe’s “racial statements” and his
misconduct “must be challenged.” (Compl. ¶ 5). Plaintiff claimed that “all” his

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Plaintiff stated in his recitation of the facts that defendant Doe referred to defendant Sullivan
as his “boss” several times. (Compl. ¶ 4).
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character references received a “cc” after the 2008 Supreme Court ruling.2 Plaintiff’s
second cause of action stated that his due process rights were violated, together with
his right to “equal treatment” and his right to be free from unfair treatment or
discrimination. (Compl. ¶ 5; Second Cause of Action). In his third cause of action,
plaintiff claimed that John Doe told plaintiff that his “boss . . . (Mr. Sullivan)” did not
issue concealed carry permits. (Compl. ¶ 5; Third Cause of Action). However,
plaintiff alleged that he determined this was not true. (Id.) Plaintiff claimed that
defendant Doe’s behavior was a violation of city, county, and state codes of conduct.
(Id.)
B.

Court’s January 3, 2013 Order

In my January 3, 2013 Order, reading the plaintiff’s complaint with great
liberality, I found that plaintiff could have been trying to state a due process as well as
an equal protection claim. (Dkt. No. 5 at 5-6). I also pointed out that the only named
defendant, “Dan Sullivan” appeared only to have been seen sitting by the side
entrance of the office when plaintiff was speaking with John Doe, presumably
overhearing the conversation. The only conduct attributable to Mr. Sullivan was that
defendant Doe told plaintiff that his boss (“Dan Sullivan”) did not issue concealed

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The court assumed that plaintiff was referring to District of Columbia v. Heller, 554 U.S.
570 (2008), in which the Supreme Court stuck down a District of Columbia statute banning handguns
and providing that firearms kept in the home be kept nonfunctional even when necessary for selfdefense.
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carry permits. (Compl. ¶ 5; Third Cause of Action). The only statement attributed to
defendant John Doe was that he “would have busted [plaintiff] on 4 felony stops.”
In my January 3, 2013 order, I noted that a plaintiff must allege a defendant’s direct or
personal involvement in the alleged constitutional deprivations.3 Farrell v. Burke, 449
F.3d 470, 474 (2d Cir. 2006).
Because plaintiff’s allegations were unclear, I afforded him the opportunity to
amend his complaint to be more specific in his claims. Plaintiff claimed that John
Doe’s “racial statements and misconduct” must be challenged. However, verbal
abuse, including threatening language and gestures, does not amount to a
constitutional violation. Bender v. City of New York, No. 09 Civ. 3286, 2011 WL
4344203, at *8 (S.D.N.Y. Sept. 14, 2011) (citing Smith v. Fields, No. 95 Civ. 8374,
2002 WL 342620, at *5 (S.D.N.Y. March 4, 2002)); La Grande v. Town of Bethlehem
Police Dep’t, No. 1:08-CV-738, 2009 WL 2868231, at *3 (N.D.N.Y. Sept. 1, 2009)
(citations omitted); Gill v. Hoadley, 261 F. Supp. 2d 113, 129 (N.D.N.Y. 2003).
C.

The Amended Complaint

Plaintiff now names the “Pistol Permit Licensing Officer for Oneida County;”

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There are ways to establish personal involvement articulated in Williams v. Smith, 781 F.2d
319, 323-24 (2d Cir. 1986) (a supervisory official is said to have been personally involved if that
official directly participated in the infraction; if after learning of a violation through a report or
appeal, he or she failed to remedy the wrong; if he or she created a policy or custom under which
unconstitutional practices occurred or allowed such a policy or custom to continue; or if he or she
were grossly negligent in managing subordinates who caused the unlawful condition or event).
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and John Doe - Employee of the County Assigned to Pistol Permit Office Under
Direction of Dan Sullivan. (Amended Complaint (“AC”) at p.1) (Dkt. No. 7). Based
upon the language that follows in the amended complaint, the court assumes that Dan
Sullivan is the Pistol Permit Licensing Officer for Oneida County.
In the amended complaint, plaintiff has added statements to his description of
the conversation with John Doe which indicate that plaintiff claims he was denied a
concealed carry permit for racial reasons. (AC ¶¶ 6, 17). Plaintiff now claims that
defendant Sullivan also gave Judge Michael Dwyer false information regarding
plaintiff’s application, and that the Judge did not grant plaintiff’s application based
upon defendant Sullivan’s recommendation. (AC ¶¶ 7, 21). Finally, plaintiff attaches
exhibits to his complaint in an effort to claim that he was treated differently than other
individuals who were “similarly situated.” (AC ¶¶ 24-27 & Exs.)
Although the amended complaint is not a model of clarity, plaintiff has
attempted to cure the deficiencies in his original complaint, and it is sufficient to allow
it to go forward, particularly because plaintiff has now paid the filing fee. However,
the court makes absolutely no finding as to the eventual merits of his claims.
III.

John Doe Defendant
The court does note that one of the defendants is still being referred to as “John

Doe.” Although plaintiff may proceed at this time with a John Doe defendant, he will
ultimately have to identify this individual so that the defendant may be served and
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may respond to plaintiff’s allegations.
In order to determine a defendant’s identity, plaintiff may request discovery
after the other defendant has been served and has appeared through counsel. Plaintiff
must not submit these discovery request through the court and must initially try to
determine the identity of the “John Doe” through discovery requests to defense
counsel. Depending on when plaintiff determines the identity of the “John Doe”
defendant, plaintiff may seek to amend his pleading to add the properly named
defendant pursuant to FED. R. CIV. P. 15. Plaintiff is further advised that if the
unnamed individual is not timely served, the action will be dismissed against him.
IV.

Service
Once plaintiff pays the filing fee, he is responsible for service of the summons,

complaint, and General Order 25 materials on defendant. Rule 4 of the Federal Rules
of Civil Procedure governs service of pleadings, and the plaintiff has been given the
Pro Se Manual for reference. The Clerk of the Court will send plaintiff the
appropriate materials, together with the Federal and Local Rules pertaining to service.
The Local Rules of the Northern District of New York provide that service must be
made within 60 days of the filing of the complaint,4 and Rule 4 of the Federal Rules of
Civil Procedure provides that if a defendant is not served within 120 days, the court

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In this case, the relevant date is the date that this order is filed because plaintiff could not
have served the complaint or the amended complaint prior to this date.
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must dismiss the action without prejudice or order that service be made within a
specific period of time. Local Rule NDNY 4.1(b), Fed. R. Civ. P. 4(m).
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff’s amended complaint is accepted for filing, based
upon his payment of the filing fee, and it is
ORDERED, that the Clerk shall issue a summons and forward it, along with a
copy of the complaint and the General Order 25 materials to plaintiff for service on
the named defendant. The Clerk shall forward a copy of the summons and complaint
to the Oneida County Attorney, and it is
ORDERED, that when service has been completed, plaintiff must file proper
proof of service pursuant to Local Rule NDNY 5.1(a). If necessary, plaintiff may
submit a written request for extension of time within which to serve defendant, and it
is
ORDERED, that a response to the complaint be filed by defendant or his
counsel as provided for in the Federal Rules of Civil Procedure after service of
process on the defendant, and it is
ORDERED, that all pleadings, motions and other documents relating to this
action shall bear the number assigned to this case and shall be filed with the Clerk of
the United States District Court, Northern District of New York, 7th Floor, Federal
Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper sent by a
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party to the Court or the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was mailed to all opposing parties or their
counsel. Any document received by the Clerk or the Court which does not
include a proper certificate of service will be returned, without processing.
Plaintiff must comply with any requests by the Clerk's Office for any documents that
are necessary to maintain this action. All parties must comply with Local Rule 7.1 of
the Northern District of New York in filing motions, which must be returnable before
the assigned Magistrate Judge with proper allowance for notice as required by the
Rules. Plaintiff is also required to promptly notify the Clerk's Office and all
parties or their counsel of any change in plaintiff's address; his failure to do so
will result in the dismissal of this action. All motions will be decided on submitted
papers without oral argument unless otherwise ordered by the Court, and it is further
ORDERED, that plaintiff take reasonable steps to ascertain the identity of the
“John Doe” defendant, and then seek to amend the complaint to add the individual as
a defendant in this action pursuant to FED. R. CIV. P. 15(a), and it is further
ORDERED, that the Clerk serve a copy of this Order on plaintiff by regular
mail.
Dated: March 1, 2013

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