Sonnick v. Budlong

VINCENT SONNICK, Plaintiff, v. CHRISTOPHER G. BUDLONG, NYS Trooper,in his official capacity; OFFICER MACORMICK,OPD, in his official capacity; NELSON T. DODGE,Judge Verona, in his individual and official capacities;NEW YORK STATE POLICE, TROOP D; TROOPER HORTON;CITY OF ONEIDA; and ONONDAGA COUNTY, Defendants.

5:20-CV-0410 (TJM/ML)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

June 4, 2020

APPEARANCES:

VINCENT SONNICK

Plaintiff, Pro Se

205 North Street, #B

Oneida, New York 13421

OF COUNSEL:

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se complaint together with an application to proceed in forma pauperis filed by Vincent Sonnick ("Plaintiff") to the Court for review. (Dkt. Nos. 1 and 2.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application (Dkt. No. 2) and recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its entirety, in part with leave to amend, and in part without leave to amend.

I. BACKGROUND

Construed as liberally¹ as possible, Plaintiff's Complaint alleges that his civil rights were violated by Defendants Christopher G. Budlong, Officer Macormick, Nelson T. Dodge, the New York State Police Troop D, Trooper Horton,² Onondaga County,³ and the City of Oneida⁴ (collectively "Defendants"). (See generally Dkt. No. 1.). More specifically, Plaintiff alleges that at some point in time, Defendant Budlong "held" him at New York State Police Troop Dheadquarters for two-and-one-half hours, during which time Plaintiff was not read his rights or permitted to make a phone call. (Id.) Plaintiff alleges that he was charged with disorderly conduct for events that took place on his own property. (Id.)

In addition, Plaintiff alleges that from December 18, 2013, until the present time, he has been "gang stalked" by the Onondaga County Sheriff's Department. (Id.)

Plaintiff alleges that at some point in time, he was brought to jail for a two-week period, during which he was not read his charges for three days, then he was moved to another unit of the Oneida County Justice Center, where he was held for another three days before being brought before a judge. (Id.) Plaintiff alleges that he was "extorted and harassed and stalked by NYS Troopers, ordered to pay after they basically kidnapped [him]." (Id.)

Plaintiff alleges that at some point in time, he sought, and was denied services at Madison County Social Services. (Id.) Plaintiff alleges that he has severe anxiety "due to this event" and "[t]he named above have conspired to . . . use . . . technology against [his] body." (Id.)

Plaintiff appears to assert the following eight causes of action: (1) violation of his freedom of speech pursuant to the First Amendment and 42 U.S.C. § 1983; (2) false arrest pursuant to the Fourth Amendment and 42 U.S.C. § 1983; (3) violations pursuant to the Racketeering Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §§ 1961-1968; (4) stalking pursuant to New York common law; (5) harassment pursuant to New York common law; (6) trespassing pursuant to New York common law; (7) defamation pursuant to New York common law; and (8) negligence pursuant to New York common law. (Id.)

For a more complete statement of Plaintiff's claims, refer to the Complaint. (Dkt. No. 1.)

Plaintiff also filed an application for leave to proceed in forma pauperis. (Dkt. No. 2.)

II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $400, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).⁵ After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.⁶

III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (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).

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasisadded) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

"In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint "broadly, as we must" and holding that the complaint sufficiently raised a cognizable claim). "[E]xtreme 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).

The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). "Legal frivolity . . . occurs where 'the claim is based on anindisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint." Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) ("[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis."); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) ("[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.").

IV. ANALYSIS

In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that all causes of action be dismissed.

A. Eleventh Amendment Immunity

The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782 (1978). This absolute immunity which states enjoy under the Eleventh Amendment also extends to state agencies. Richards v. State of New York Appellate Division, Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y.1984) (citing Pugh, 438 U.S. at 782; Cory v. White, 457 U.S. 85, 89-91 (1982)). As a result, I recommend dismissal of all claims brought by Plaintiff against the New York State Police based on the doctrine of absolute immunity pursuant to the Eleventh Amendment.

Moreover, "'claims against a government employee in his official capacity are treated as a claim against the municipality,' and, thus, cannot stand under the Eleventh Amendment." Jackson v. Gunsalus, 16-CV-0647, 2016 WL 4004612, at *2 (N.D.N.Y. June 24, 2016) (Dancks, M.J.) (quoting Hines v. City of Albany, 542 F. Supp. 2d 218, 227 (N.D.N.Y. 2008) (McCurn, J.)), report and recommendation adopted, 2016 WL 3983635 (July 25, 2016) (Sharpe, J.); see Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166-67 (1985)) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").

Here, Plaintiff's claims against Defendants Budlong and Macormick, are solely in their official capacities (Dkt. No. 1 at 2-3), and thus, should be dismissed because these claims are, in reality, damage claims against the governmental entities, which are immune from suit. See Jackson, 2016 WL 4004612, at *2 (dismissing claims against officers of the Syracuse Police Department in their official capacity based on Eleventh Amendment immunity). In addition, Plaintiff's claims against Defendant Dodge in his official capacity must also be dismissed for the same reason.

B. Absolute...