McFadden v. Witmer

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT MCFADDEN,
Plaintiff,
V .
MICHAEL JOS. WITMER,
Defendant.
DECISION AND ORDER
26-CV-1678 (JLS)
Pro se Plaintiff Robert McFadden, a prisoner confined at Lakeview Shock
Incarceration Correctional Facility, filed this action seeking relief under 42 U .S.C. §
1983. Dkt. 1. McFadden is dissatisfied with the services provided by his privately
retained counsel. See generally id.
McFadden seeks permission to proceed in forma pauperis ("IFP") and has
filed the required authorization. Dkt. 2. Because McFadden meets the
requirements of 28 U .S.C. § 1915(a) and filed the required authorization, he is
granted permission to proceed IFP. The Court therefore screens his complaint
pursuant to 28 U .S.C. §§ 1915(e)(2)(B) and 1915A(a).
For the reasons below, McFadden's claims are dismissed for failure to state a
claim under 28 U .S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l), but with leave to file an
amended complaint by September 28, 2026.
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DISCUSSION
I. LEGAL STANDARDS
A. Review Under the IFP Statutes
A court shall dismiss a complaint in a civil action in which a prisoner seeks
redress from a governmental entity, or an officer or employee of a governmental
entity, if the court determines the action "(l) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief." 28 U.S.C. § 1915A(b)(l)-(2); see 28
U.S.C. § 1915(e)(2)(B) (setting forth the same criteria for dismissal).
B. Pleading Standards
In evaluating a complaint, the court must "accept all of the facts alleged in
the complaint as true and draw all inferences in the plaintiffs favor." Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003). Although "a court is obliged to construe
[prose] pleadings liberally, particularly when they allege civil rights violations,"
McEachin v. McGuinnis, 357 F.3d 197,200 (2d Cir. 2004), even a prose complaint
must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a
complaint to make "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint states a claim for
relief if the claim is "plausible on its face." BellAtl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
A claim will have "facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In other
words, although a pro se complaint need not provide every last detail in support of a
claim, it must contain sufficient factual allegations to nudge the claim "across the
line from conceivable to plausible." Twombly, 550 U.S. at 570; see Komatsu v.
Cubesmart, Daniels Norelli Cecere & Tavel PC, No. 20-3676-CV, 2021 WL 6060603,
at *1 (2d Cir. Dec. 20, 2021) (summary order) (to avoid sua sponte dismissal under
the IFP statute, "a complaint must plead 'enough facts to state a claim to relief that
is plausible on its face"' (quoting Twombly, 550 U.S. at 570)); Scott Phillip Lewis v.
R.L. Vallee, Inc., d.b.a. Maplefield's, No. 24-1438, 2025 WL 1077412, at *1 (2d Cir.
Apr. 10, 2025) (summary order) (same).
The Court's liberal pleading standard "does not require 'detailed factual
allegations,' but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
A complaint fails to state a claim if it supplies only "labels and conclusions,"
Twombly, 550 U.S. at 555, "a formulaic recitation of the elements of a cause of
action,'' id., or '"naked assertions' devoid of 'further factual enhancement,'" Iqbal,
556 U.S. at 678 (alteration omitted) (quoting Twombly, 550 U.S. at 557). Although
a court is "obligated to draw the most favorable inferences that [a plaintiffJ's
complaint supports, [it] cannot invent factual allegations that he [or she] has not
pied." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
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C. Section 1983 Claims
To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege that the
challenged conduct (1) was attributable to a person acting under color of state law,
and (2) deprived the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d
400, 405 (2d Cir. 1997). "Section 1983 itself creates no substantive rights; it
provides only a procedure for redress for the deprivation of rights established
elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
To establish liability against an official under Section 1983, a plaintiff must
allege that individual's personal involvement in the alleged constitutional violation;
it is not enough to assert that the defendant is a link in the chain of command. See
McKenna v. Wright, 386 F.3d 432,437 (2d Cir. 2004). Moreover, the theory of
respondeat superior is not available in a Section 1983 action. See Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir. 2003). There is "no special rule for supervisory
liability." Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Rather, "a
plaintiff must plead and prove 'that each Government-official defendant, through
the official's own individual actions, has violated the Constitution."' Id. (quoting
Iqbal, 556 U.S. at 676).
D. Leave to Amend
Generally, a court will afford a pro se plaintiff an opportunity to amend or to
be heard prior to dismissal, unless it "can rule out any possibility, however
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unlikely it might be, that an amended complaint would succeed in stating a claim."
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quoting Gomez v. USAA Fed. Sav.
Bank, 171 F.3d 794, 796 (2d Cir. 1999)). But a court may deny leave to amend
pleadings when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993) ("Where it appears that granting leave to amend is unlikely to be
productive ... it is not an abuse of discretion to deny leave to amend.").
II. ALLEGATIONS
McFadden retained attorney Michael Jos. Witmer ("Witmer") to represent
him in a habeas proceeding. Dkt. 1 at 1. "Instead of receiving ... competent,
zealous advocacy ... [McFadden] was subjected to a catastrophic failure of legal
representation." Id. at 2. Witmer provided "false assurances" that he was handling
the required tasks related to litigating McFadden's habeas petition, and "actively
obstructed [and] prevented [McFadden] from filing ... pro se or securing alternative
legal representation[.]" Id. at 40. McFadden asserts claims pursuant to 42 U.S.C. §
1983 and state law. Id. at 4. He seeks monetary relief. Id. at 41-43.
III. ANALYSIS
A. Federal Claims
McFadden asserts violations of the United States Constitution against
Witmer. But to assert a claim under Section 1983, he "must first establish that the
challenged conduct constitutes state action." Fabrikant v. French, 691 F.3d 193,
206 (2d Cir. 2012) (internal quotation marks and citation omitted). This is
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"[b]ecause the United States Constitution regulates only the Government, not
private parties[.]" United States v. Int'l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am., AFL-CIO, 941 F.2d 1292, 1295 (2d Cir. 1991).
The actions of a private party only constitute state action when (1) the private party
"performs a traditional, exclusive public function"; (2) "the government compels the
private party to take a particular action"; or (3) "the government acts jointly with
the private [party]." Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802,809
(2019).
Criminal defense attorneys-whether public defenders, court-appointed
attorneys, or privately retained counsel-are not persons acting under color of state
law "when performing a lawyer's traditional functions as counsel to a defendant in a
criminal proceeding." Polk County v. Dodson, 454 U.S. 312, 325 (1981); Wiggins v.
Buffalo Police Dep't., 320 F. Supp. 2d 53, 55-56 (W.D.N.Y. 2004).
McFadden's allegations describe only actions taken by Witmer in the course
of representing him in a habeas petition. Accordingly, all federal claims against
Witmer are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for
failure to state a claim, but with leave to amend. To state a claim against Witmer
in an amended complaint, McFadden must make non-conclusory factual allegations
showing that Witmer willfully acted in concert with the government to deprive
McFadden of his rights. See Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d
Cir. 2002) ("[A] private actor acts under color of state law when the private actor 'is
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a willful participant in joint activity with the State or its agents."' (quoting Adickes
v. S.H. Kress & Co., 398 U.S. 144, 152 (1970))).
B. State Law Claims
Having dismissed McFadden's federal claims, the Court declines to exercise
supplemental jurisdiction over his state law claims, at this time, pursuant to 28
U.S.C. § 1367(c). See Pension Benefit Guar. Corp. ex rel. Saint Vincent Catholic
Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir.
2013) ("[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction
doctrine-judicial economy, convenience, fairness, and comity-will point toward
declining to exercise jurisdiction over the remaining state-law claims." (internal
quotation marks and citation omitted)). Accordingly, McFadden's state law claims
are dismissed without prejudice. This ruling does not preclude McFadden from
repleading his state law claims in an amended complaint or seeking relief in state
court.
CONCLUSION
Because McFadden has met the statutory requirements of 28 U.S.C.
§ 1915(a) and filed the authorization, his request to proceed in forma pauperis is
granted. For the reasons above, the complaint is dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l). McFadden may file an amended complaint by
September 28, 2026 in which he includes the necessary allegations as directed
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above and in a manner that complies with Rules 8 and 10 of the Federal Rules of
Civil Procedure.
McFadden is advised that an amended complaint completely replaces the
prior complaint in the action, and thus it "renders [any prior complaint] of no legal
effect." Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Therefore,
any amended complaint must include all allegations against Witmer so that the
amended complaint stands alone as the only complaint in this action.
ORDER
IT HEREBY IS ORDERED that McFadden's motion to proceed IFP (Dkt. 2) is
granted; and it is further
ORDERED that McFadden's complaint is dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(2) for failure to state a claim but with leave to
amend; and it is further
ORDERED that McFadden may file an amended complaint as directed above
by no later than September 28, 2026; and it is further
ORDERED that the Clerk of Court shall send to McFadden with this order a
copy of the original complaint, a blank Section 1983 complaint form, and the
instructions for preparing an amended complaint; and it is further
ORDERED that if McFadden does not file an amended complaint by the
deadline set forth above, the claims dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l) for failure to state a claim, will remain dismissed and the Clerk of
Court shall close this case without further order; and it is further
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ORDERED that in the event the complaint is dismissed because McFadden
has failed to file an amended complaint, this Court hereby certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith
and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v.
United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor
person should be directed, on motion, to the United States Court of Appeals for the
Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate
Procedure; and it is further
ORDERED that pursuant to Western District of New York Local Rule of Civil
Procedure 5.2(d), McFadden must immediately notify the Court in writing each
time his address changes. Failure to do so may result in dismissal of the action
with prejudice.
SO ORDERED.
Dated:
August 14, 2026
Buffalo, New York
17
. SINATRA, JR.
STATES DISTRICT JUDGE
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