Lee v. Kilchen
Lee v. Kilchen
Opinion of the Court
ORDER
I. Introduction
Plaintiff Melvin Lee (“Plaintiff’) brings this action pursuant to 42 U.S.C. § 1983,
The Court has reviewed Plaintiffs motion for in forma pauperis status. For the reasons detailed below, the motion is granted. The Court has also reviewed the complaint as required by 28 U.S.C. § 1915(e)(2). As discussed below, Plaintiff has failed to put forth any factual basis for his claims, and, therefore, the complaint must be dismissed unless Plaintiff files an amended complaint that cures its defects.
II. Plaintiffs Motion for In Forma Pauperis Status is Granted
Plaintiffs affirmation of poverty has been reviewed in accordance with 28 U.S.C. § 1915(a)(1). Plaintiff has met the statutory requirements for in forma pau-peris status, and, therefore, permission to proceed informa pauperis is granted.
III. Plaintiffs Complaint Fails to Allege Any Factual Basis for His Claims
The Court has also reviewed the complaint with respect to the § 1915(e)(2) criteria. Under § 1915(e)(2), the Court must conduct an initial screening of Plaintiffs complaint. See 28 U.S.C. § 1915(e)(2). The Court must dismiss the complaint if it is “frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.” Id. “An action is ‘frivolous’ for § 1915(e) purposes if it has no arguable basis in law or fact.” Montero v. Travis, 171 F.3d 757, 759 (2d Cir. 1999).
In evaluating the complaint, a court must accept as true all of the plaintiffs factual allegations, and must draw all inferences in the plaintiffs favor. See, e.g., Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). While “a court is obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pro se pleadings must meet the notice requirements of Rule 8 of the Federal Rules of Civil Procedure, Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. 2004) (“[T]he basic requirements of Rule 8 apply to self-represented and counseled plaintiffs alike.”).
“[A] district court should look with a far more forgiving eye in examining whether a complaint rests on a meritless legal theory for purposes of section [1915(e) ] than it does in testing the complaint against a Rule 12(b)(6) motion.” Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990). In determining whether a complaint survives a Rule 12(b)(6) motion, the plaintiff need “only give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1965, 167 L.Ed.2d 929 (2007)). “So long as the [in forma pauperis] plaintiff raises a cognizable claim, dismissal on the basis of factual deficiencies in the complaint must wait until the defendant attacks the lack of such details on a Rule 12(b)(6) motion.” Nance, 912 F.2d at 607.
IV. Plaintiff Will be Afforded Leave to Amend
Plaintiff will be afforded an opportunity to amend his complaint to include the factual basis for his claims. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999) (suggesting that district courts are generally required to allow an opportunity to amend before dismissing a pro se claim suapponte). In making out his amended complaint, Plaintiff should include all of the facts surrounding the alleged constitutional violations, such as the time and place of the violations, what happened, what action each of the named Defendants took in violation of Plaintiffs constitutional rights, and what role each of the named Defendants played with respect to any such alleged violations. Plaintiffs claims will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) unless he files an amended complaint by December. 9, 2016, in which he includes the necessary allegations and factual information in a manner that complies with Rules 8 and 10 of the Federal Rules of Civil Procedure. The Court will attach to this Order instructions for filing an amended complaint, and the civil complaint form to be used in a non-prisoner context.
Plaintiff is advised that an amended complaint is intended to completely replace the prior complaint in the action, and thus it “renders [the original complaint] of no legal effect.” Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Therefore, Plaintiffs amended complaint must include all of the allegations against each of the Defendants against whom the case is going forward so that the amended complaint may stand alone as the sole- complaint in this action.
V. Order
IT IS HEREBY ORDERED, that Plaintiffs motion for leave to file informa pauperis (Dkt. 2) is granted;
FURTHER, that Plaintiff will be provided an opportunity to file an amended complaint by December 9, 2016;
FURTHER, that in the event Plaintiff fails to file an amended complaint by December 9, 2016, the Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and, therefore, leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); 28 U.S.C. § 1915(a)(3). Any request to proceed in forma pauperis on appeal should be directed by motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.
. The Court notes that the case caption in CM/ECF spells this Defendant's last name as “Kitchen.” The Clerk of Court is directed to correct the docket to reflect the complaint’s spelling of Defendant’s last name (“Kilchen”).
Reference
- Full Case Name
- Melvin LEE v. Joel KILCHEN, Canisus College, as a person, Dominic J. Barone, Buffalo State College, as a person, and Gary Everett
- Status
- Published