Vazquez v. Astrue

• Decision Date: 26 September 2019
• Docket Number: 5:18-CV-1492 (DNH/ATB)
• Parties: JOSE P. VAZQUEZ, Plaintiff, v. MICHAEL J. ASTRUE, Comm. Soc. Sec., et al., Defendants.
• Court: U.S. District Court — Northern District of New York

JOSE P. VAZQUEZ, Plaintiff, v. MICHAEL J. ASTRUE, Comm. Soc. Sec., et al., Defendants.

5:18-CV-1492 (DNH/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 26, 2019

ANDREW T. BAXTER United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent to the court a civil rights complaint, together with an application to proceed in forma pauperis ("IFP"),¹ and a request for appointment of counsel,² filed by pro se plaintiff, Jose P. Vazquez. (Dkt. Nos. 1, 2, 11).

I. IFP Application

A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 11). This court agrees, and finds that plaintiff is financially eligible for IFP status.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth inthe complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(i) -(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaintunder the above standards.

II. Complaint

The complaint in this action is very confusing. However, the court will attempt to interpret plaintiff's claims as liberally as possible.³ Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and has named the following defendants: Michael Astrue, a former Commissioner of Social Security; David Stukowy [sic],⁴ the Commissioner of the Onondaga County Department of Social Services ("DSS"); NYS Parole "individually and in its official capacity"; James - Rescue Mission Personnel in his "individual and official capacity." (Compl. at 1).

Plaintiff's preliminary statement alleges that this case is a "civil rights" action for compensatory and punitive damages for "Discrimination denial of the Human Rights Commission," and for "violating these rules under the undomicile resources on transition from Prison or Jail and Being on Parole." (Compl. at 1). The rest of the complaint is a blend of various allegations, citations, and apparent arguments, that rarely contain dates of occurrence, persons responsible, or federal bases for jurisdiction.⁵ (Compl. at 2-10).

Plaintiff states that he was released on parole from Greene Correctional Facility on October 4, 2018. (Compl. at 2). Plaintiff seems to be complaining about an employee of the Rescue Mission, named James, who apparently had plaintiff "discharged" from the Rescue Mission, without proper authority, shortly after plaintiff's release on parole for two allegedly "negative" drug tests, administered on October 30, 2018. (Compl. at 2). Plaintiff states that "[t]he subsequent result [sic] another parole violation, lost [sic] of property, legal work, and credentials. (Id.) This court has interpreted these statements as alleging that defendants do not properly prepare parolees or "establish" housing, placement, or clothing, making subsequent parole violations more likely. (Compl. at 2). Plaintiff cites only New York State statutes as a basis for his claim.⁶

Unfortunately, the rest of plaintiff's complaint is a litany of allegations, some of which relate to matters that apparently occurred years ago, including an alleged assault by CO Peters and a John Doe officer at "Willard," which left plaintiff paralyzed for two weeks, with no medical attention, and "no witnesses." (Compl. at 3). This alleged assault was the subject of plaintiff's previous action in this court and has been dismissed with prejudice as time-barred.⁷ 18-CV-1071 (Dkt. No. 9 at 5, 6, 8), adopted Feb. 4, 2019 (Dkt. No. 10). In this complaint, plaintiff also criticizes the Court ofClaims Judge who apparently "violated Court Protocol," but is not named in this action. (Compl. at 3).

Plaintiff states generally, that there was a "violation of Brown v. Evans, the violation by virtue of the increase from 97 days to 12 months without the appropriate recission [sic] and right to counsel." (Compl. at 3). Brown v. Evans, 39 Misc. 3d 171 (S. Ct. N.Y. Cty 2012) is a parole revocation case in which the court found that the respondent chairperson of the New York State Department of Corrections and Community Supervision ("DOCCS") was not authorized to order a time assessment of 24 months with no alternative as an addendum to the decision of an Administrative Law Judge. Id. Plaintiff in this case cites Brown v. Evans various times, but does not relate this to any claim in his particular case.⁸ Plaintiff claims that this court "has jurisdiction to release Plaintiff from the illegal restraint, confinement, back to Parole Supervision, until such time as our learned courts decide on the basis of the illegal confinement and malicious prosecution."⁹ (Compl. at 4).

Plaintiff then mentions "violations of" Bounds v. Smith and Lewis v. Casey, stating that there was no access to the law library and "copies are out of the question" at the Onondaga County Correctional Facility. (Id.) Plaintiff states that inaccurate information "brings forth the fact of Parole the role they play [sic]," and that inaccurateinformation cost the Department of Justice "16 Billion Dollars." (Id.) Plaintiff makes some additional statements and then asserts that DSS, Parole, and the Rescue Mission's were derelict in their duties and responsibilities, and that they had no resources or housing to "complete the task of the appropriate transition and the Human Decency Clause of the Constitution." (Compl. at 5).

Plaintiff also mentions the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Id.) It is unclear why plaintiff cites either one of those statutes, although plaintiff does allege that he has multiple health conditions and 70 years old. Plaintiff may be attempting to claim that because he is elderly and suffers from a variety of health issues, his poor treatment by "Parole" and the Rescue Mission personnel is somehow in violation of both the ADA and Title VII.¹⁰

Plaintiff states that individuals coming out of prison are "undomiciled" and homeless, and that shelters are discharging individuals "illegally" and "Parole" arresting them on fabricated parole violations. (Id.) Plaintiff claims that the Rescue Mission personnel "combined" with the Parole agency to violate individuals' rights generally. (Compl. at 6). Plaintiff appears to attempt to claim that the defendants Rescue Mission and Parole are guilty of "elder abuse" based on their conduct.¹¹(Compl. at 6, 7).

Plaintiff also states that Social Security never addressed his survivors' benefits when his wife died in 2013, his step daughter had his wife cremated, and then "took all our property." (Compl. at 8). At the end of his complaint, although he calls it a Memorandum of Law, plaintiff talks about "the Bruton rule" and states that "as the first offender Vazquez is left to defend himself without competent counsel." (Compl. at 10). It appears that plaintiff is referring to his original 1974 conviction. In another part of the complaint, plaintiff states that he "seeks to enjoin these defendants," but does not indicate what he would like the court to enjoin. Plaintiff then cites random cases with defendant Astrue as a party. Plaintiff also mentions a case in which relief was afforded pursuant to a settlement agreement. (Compl. at 8). His request for "injunctive" relief is very difficult to understand, although he does states that the court has jurisdiction to release him from his current confinement. (Compl. at 8).

III. Rule 8

A. Legal Standards

The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of claim showing that the pleader is entitled to relief,' and that each averment be 'concise and direct.'" Whitfield v. Johnson, No. 18-CV-1232, 2018 WL 1385890, at *2 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quoting Fed. R. Civ. P. 8(a)(2), 8(d)(1)).

B. Application

The court is well-aware that pro se pleadings must be read to raise the strongestarguments that they suggest. Burgos, 14 F.3d at 790. In this case, even if read liberally, plaintiffs' complaint fails to give the defendants fair notice of plaintiff's claims and fails to allege facts against the defendants named in the caption of the complaint. Plaintiff's previous...