     19-353
     Gordon v. Suffolk County




                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 3rd day of February, two thousand twenty.
 4
 5   PRESENT:
 6               PIERRE N. LEVAL,
 7               REENA RAGGI,
 8               DEBRA ANN LIVINGSTON,
 9                     Circuit Judges.
10   _____________________________________
11
12   James E. Gordon,
13
14                              Plaintiff-Appellant,
15
16                     v.                                                   19-353
17
18   Suffolk County, Sergeant Thornton,
19   Suffolk County Police Department,
20
21                     Defendants-Appellees.
22   _____________________________________
23
24   FOR PLAINTIFF-APPELLANT:                          James E. Gordon, pro se
25                                                     Islip Terrace, NY.
26
27   FOR DEFENDANTS-APPELLEES:                         No appearance.
28
 1           Appeal from a judgment of the United States District Court for the Eastern District of New

 2   York (Azrack, J.).

 3           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court entered on January 28, 2019 is AFFIRMED.

 5           Pro se Plaintiff James Gordon sued Suffolk County, the Suffolk County Police Department

 6   (“SCPD”), and Sergeant Thornton under 42 U.S.C. § 1983 for the alleged withholding of his

 7   firearms pending Gordon’s receipt of a satisfactory medical evaluation. Gordon attached to his

 8   complaint correspondence with the Police Commissioner, the County Executive, and the SCPD

 9   property section, in which Gordon referred to having uncovered conspiracies in Suffolk County,

10   the tapping of his telephone, and being threatened. The district court sua sponte dismissed the

11   complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)–(ii) for failure to state a cognizable claim

12   against any defendant, and concluded that the defects could not be cured by amendment. Gordon

13   appeals and files a motion for “Protection” in this Court. We assume the parties’ familiarity with

14   the underlying facts, procedural history, and issues on appeal.

15           This Court reviews de novo the sua sponte dismissal of a complaint under 28 U.S.C.

16   § 1915(e)(2). See Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010). Under that statute, the district

17   court must dismiss a complaint filed in forma pauperis if it determines that the action or appeal

18   “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

19   monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

20   To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible

21   on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556

22   U.S. 662, 678 (2009) (stating that although complaint allegations are assumed to be true, this tenet

23   is “inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action,



                                                         2
 1   supported by mere conclusory statements, do not suffice”). An action is frivolous if it lacks an

 2   arguable basis in law or fact—i.e., where it is “based on an indisputably meritless legal theory” or

 3   presents “factual contentions [that] are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327

 4   (1989); Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011).

 5             At the outset, we note that Gordon’s filings in this court make no mention of the district

 6   court’s decision and offer no identifiable argument as to how the district court may have erred. On

 7   de novo review, we conclude that the district court did not err in dismissing Gordon’s complaint

 8   under § 1915(e)(2)(B)(ii) because Gordon pleads no facts indicating that the SCPD unlawfully

 9   came into possession of or retains his firearms. Instead, he conclusorily pleads an overarching

10   conspiracy lasting more than 17 years that allegedly resulted in, at some unspecified time, his home

11   being raided, his telephone tapped, his computer hacked, and his tax records removed. Even

12   according these pleadings “special solicitude” and interpreting them to “raise the strongest claims

13   that [they] suggest[],” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks

14   and brackets omitted), the allegations are too vague to state any cognizable, timely § 1983 claim.

15   See Spear v. Town of W. Hartford, 954 F.2d 63, 68–69 (2d Cir. 1992) (holding that plaintiff must

16   allege specific facts showing that “conduct allegedly causing the deprivation of a federal right

17   [can] be fairly attributable to the State.” (internal quotation marks omitted)). Indeed, the district

18   court correctly determined that the few conceivably “well-pleaded” facts in the complaint are

19   fanciful and “clearly baseless,” warranting dismissal under § 1915(e)(2)(B)(i). Dist. Ct. Doc. No.

20   8 at 5.

21             Nor did the district court err in denying leave to replead. Rather, it correctly concluded that

22   the problems with the pleading were substantive, that better pleading would not cure them and,

23   thus, that repleading would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).



                                                         3
1          Insofar as Gordon moves this Court for “Protection” from retaliation for his speaking out

2   about the conspiracy in Suffolk County, his vague allegations do not establish any entitlement to

3   the relief requested.

4          We have considered the remainder of Gordon’s arguments and find them to be without

5   merit. Accordingly, we AFFIRM the judgment of dismissal and DENY the motion for protection.

6                                               FOR THE COURT:
7                                               Catherine O’Hagan Wolfe, Clerk of Court




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