Gerken v. Gordon

1

DANIEL-LEE GERKEN, Plaintiff, v. THOMAS GORDON, et al., Defendants.

No. 1:24-CV-00435 (MAD/CFH)

United States District Court, N.D. New York

October 29, 2024

Daniel-Lee Gerken, Plaintiff pro se

REPORT-RECOMMENDATION AND ORDER

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

I. In Forma Pauperis

Plaintiff pro se Daniel-Lee Gerken (“plaintiff”) commenced this action on March 28, 2024, by filing a complaint. See Dkt. No. 1 (“Compl.”); see also Dkt. No. 1. In lieu of, paying this Court's filing fee, he submitted an application for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP application and determines that he financially qualifies to proceed IFP.^[1]

II. Initial Review

A. Legal Standard

28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is 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).^[2] “Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed further with his action.” Praileau v. Fischer, 930 F.Supp.2d 383, 394 (N.D.N.Y. 2013).

Where, as here, the plaintiff proceeds pro se, “the court must construe his submissions liberally and interpret them to raise the strongest arguments that they suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (internal quotation marks omitted). As the Second Circuit stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to special solicitude, that a pro se litigant's submissions must be construed liberally, and that such submissions must be read to raise the strongest arguments that they suggest. At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not consistent with the pro se litigant's allegations, or arguments that the submissions themselves do not suggest, that we should not excuse frivolous or vexatious filings by pro se litigants, and that pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law. . . .

Id. (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe his pleadings liberally.”) (internal quotation marks and citations omitted). Thus, the Court is not required to accept unsupported allegations that are devoid of sufficient facts or claims. Although detailed allegations are not required at the pleading stage, the complaint must still include enough facts to provide the defendants with notice of the claims against them and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“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.”).

“The [Second Circuit's ‘special solicitude' for pro se pleadings has its limits, because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure [(‘Fed. R. Civ. P.')].” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). Specifically, Rule 8 provides that a pleading which sets forth a claim for relief shall contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation marks and citations omitted). Rule 8 also requires the pleading to include “(1) a short and plain statement of the grounds for the court's jurisdiction . . . and (3) a demand for the relief sought . . . .” FED. R. CIV. P. 8(a).

Although “[n]o technical form is required,” the Federal Rules make clear that each allegation contained in the pleading “must be simple, concise, and direct.” FED. R. CIV. P. 8(d).

Further, Rule 10 provides in pertinent part that:

[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence-and each defense other than a denial-must be stated in a separate count or defense.

FED. R. CIV. P. 10(b). This serves the purpose of “providing] an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to comply with the pleading requirements “presents far too a heavy burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). However, “[dismissal . . . is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted).

B. Plaintiff's Complaint^[3]

Plaintiff claims that “Jaquelin Devorak used perjurious and fraudulent petitions in Rensselaer County Family Court starting November 6, 2022[,] to establish orders of protection to lead her to temporary sole custody,” which enabled her “to conspire with the County of Rensselaer, Thomas Gordon, Erin Scott, Nancy Harding, and New York State Child Support Processing Center to establish an Income Withholding Order against [him]” on March 23, 2023, “without [his] express consent or full disclosure of the nature of and cause of the actions against him as well as the jurisdictional nullity of the proceedings[.]” Dkt. No. 1-2 at 2.^[4]

Plaintiff alleges that he “was summoned by the Child Support Magistrate, [Thomas Gordon,] around 11:00AM March 23, 2023[,] and coerced under duress to agree to a temporary child support order in an administrative court not disclosed to [him].” Compl. at 4. “The terms of the child support contract as well as paternity contract signed at the hospital under duress were not fully disclosed at inception or at birth of the child.” Id. On “August 28, 2023[, plaintiff's] private assets in [his] bank accounts had liens put on them and were frozen by the NYS Child Support Processing Center and [the] County of Rensselaer.” Id. “On September 28, [2023, his] bank was deducted $1368.00 for ‘child support' illegally.” Id. On November 27, 2023, his “objections and request for equitable subrogation were ignored by Magistrate Thomas Gordon who was acting as a private actor in a judicial manner.” Id.

Plaintiff complains that Ms. Devorak, Support Magistrate Gordon, Ms. Scott, Ms. Harding, the County of Rensselaer, and the New York State Child Support Processing Center “have issued Income Withholding Orders, Bank Liens, duress and threats of arrest to enforce the tacit consent and seizing of property and assets including wages and private assets of [p]laintiff under the fraud of ‘CHILD SUPPORT.'” Dkt. No. 1-2 at 1. “This was accomplished via the RENSSELAER COUNTY FAMILY COURT Child Support system, its Magistrate THOMAS GORDON, Chief Clerk ERIN SCOTT and other private actors working under the fraudulent cloak of de facto and administrative government,” including Ms. Harding, who was the attorney for the child. Id.; see Compl. at 7. “These CHILD SUPPORT proceedings fall under Administrative Process and are non Judicial.” Dkt. No. 1-2 at 1. Support Magistrate Gordon “ignored the equitable subrogation notices, jurisdictional questions, writ of QUO WARRANTO, Rebuttals, Objections and other defenses of [p]laintiff in the Family Court Child Support Proceedings,” but he “did not disclose that he had no judicial power and these proceedings were Non-Judicial in law and instead executive with express consent and full disclosure needed.” Id. at 1-2. Plaintiff alleges that defendants “deprived the Plaintiff of his 4^th, 5^th, and 6^th Amendment Rights as a living man and American State National under color of law.” Dkt. No. 1-2 at 2.

Plaintiff requests “this Court to immediately order that the Rensselaer County Family Court and NYS Child Support Processing Center drop any and all order against [him] as well as reimburse any and all monetary payments, garnishments or any other transactions [he] completed with the agency or it's [sic] third party affiliates[.]” Compl. at 5. Plaintiff “would also like the court to award damages of $1,000,000.00 as an aggregate payout between each Defendant in...