Sahm v. Paradise Mountain Mobile Home Park et al
Filing
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DECISION AND ORDER accepting and adopting Magistrate Judge Baxter's 8 Report and Recommendations; dismissing Plaintiff's 1 Complaint w/prejudice; denying Plaintiff's 10 motion for appointment of counsel; and directing the entry of judgment. Signed by Judge Glenn T. Suddaby on 12/11/2013. (amt) [Pltf served via reg. mail]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ERIC D. SAHM, SR.,
Plaintiff,
6:13-CV-1182
(GTS/ATB)
v.
PARADISE MOUNTAIN MOBILE
HOME PARK; and VANDERBUILT
MORTAGE COMPANY,
Defendants.
__________________________________________
APPEARANCES:
OF COUNSEL:
ERIC D. SAHM, SR., 12-B-1431
Plaintiff, Pro Se
Marcy Correctional Facility
Box 3600
Marcy, New York 13403
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Eric D. Sahm, Sr.
(“Plaintiff”) against the two above-captioned Defendants, is United States Magistrate Judge
Andrew T. Baxter’s Report-Recommendation recommending that Plaintiff’s Complaint be sua
sponte dismissed for failure to state a claim on which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). (Dkt. No. 8.) Plaintiff has filed an Objection to the ReportRecommendation. (Dkt. No. 9.) In addition, he has filed a motion for the appointment of
counsel. (Dkt. No. 10.)
Plaintiff’s Objection specifically challenges only one portion of Magistrate Judge
Baxter’s Report-Recommendation: Magistrate Judge Baxter’s implicit recommendation that
Plaintiff’s Complaint be dismissed with prejudice. (Dkt. No. 9.) Plaintiff has submitted no
specific challenge to the remainder of the Report-Recommendation. (Id.)
When no objection is made to a portion of a report-recommendation, the Court subjects
that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition. Here, after carefully reviewing the relevant filings
in this action, the Court can find no error in the remainder of the Report-Recommendation:
Magistrate Judge Baxter employed the proper standards, accurately recited the facts, and
reasonably applied the law to those facts. As a result, the Court accepts and adopts the
remainder of the Report-Recommendation for the reasons stated therein. (Dkt. No. 8.)
As for Magistrate Judge Baxter’s implicit recommendation that Plaintiff’s Complaint be
dismissed with prejudice, both Magistrate Judge Baxter and the undersigned have liberally
construed Plaintiff’s Complaint with the utmost of special liberality, and concluded that he has
failed to allege facts plausibly suggesting an actionable claim against Defendants. Moreover,
while Plaintiff conclusorily requests that the Court dismiss his Complaint only without prejudice,
he makes no effort to describe what claim he might plausibly file in the future. (Dkt. No. 9.)
Under the circumstances, it would make little sense–and indeed it would result in a waste
of judicial resources–to permit Plaintiff to try again to replead his Section 1983 claims in another
court, or claims based on diversity jurisdiction in a federal court, arising from the transaction or
occurrence giving rise to the Complaint. See Winters v. Alza Corp., 690 F. Supp.2d 350, 357
(S.D.N.Y. 2010) (“There is an obvious logic to this result: if, in analyzing a fraudulent joinder
issue, a federal court concludes that there is no legal possibility for a plaintiff to state a particular
claim against a defendant, it would make little sense and would result in a waste of judicial
resources to permit the plaintiff to try again in state court.”). Having said that, the Court
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expresses no opinion as to any state-law statutory or tort claims that Plaintiff may attempt to
assert against Defendants in state court.
With regard to the somewhat-related issue of whether to grant Plaintiff leave to amend
his Complaint before dismissal, the Court finds that granting Plaintiff leave to amend his
Complaint before dismissal is not necessary because the defects in that Complaint are
substantive rather than merely formal, rendering any amendment futile. See Brown v. Peters, 95CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) (“[T]he court need not
grant leave to amend where it appears that amendment would prove to be unproductive or
futile.”) (citation omitted).
For all of these reasons, Plaintiff’s Complaint is dismissed, and that the dismissal is with
prejudice with regard to any claim based on 42 U.S.C. § 1983, or based on diversity jurisdiction,
arising from the transaction or occurrence giving rise to the Complaint.
Finally, with regard to Plaintiff’s motion for the appointment of counsel, the Court denies
that motion on each of the following three alternative grounds: (1) mootness; (2) lack of
documentation that substantiates his efforts to obtain counsel from the public and private sector
under Cooper v. Sargenti Co., Inc., 877 F.2d 170, 172, 174 (2d Cir. 1989); and (3) a careful
weighing of the factors under Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir.
1994).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 8) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
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ORDERED that the dismissal is WITH PREJUDICE with regard to any claim based on
42 U.S.C. § 1983, and/or diversity jurisdiction, arising from the transaction or occurrence giving
rise to the Complaint; and it is further
ORDERED that Plaintiff’s motion for the appointment of counsel (Dkt. No. 10) is
DENIED; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of the
defendants and close this case.
The Court certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from
this Decision and Order would not be taken in good faith.
Dated: December 11, 2013
Syracuse, New York
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