Oliver v. Sheriff Department et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BARBARA J. OLIVER,
Plaintiff,
vs. 5:26-CV-543
(MAD/MJK)
SHERIFF DEPARTMENT, et al.,
Defendants.
____________________________________________
APPEARANCES: OF COUNSEL:
BARBARA J. OLIVER
Syracuse, New York 13261
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
Pro se Plaintiff Barbara J. Oliver filed a complaint on April 6, 2026, naming seven law
enforcement departments or individuals as Defendants. See Dkt. No. 1. Plaintiff paid the filing
fee. See id. Plaintiff filed a letter requesting the U.S. Marshals to serve her summonses and
complaint on Defendants and she moved for the appointment of counsel. See Dkt. Nos. 5, 6. On
April 17, 2026, Magistrate Judge Mitchell J. Katz issued an Order & Report-Recommendation,
stating that Plaintiff's complaint failed to comply with Rule 8 of the Federal Rules of Civil
Procedure or otherwise state a claim. See Dkt. No. 9. He also denied her motions to appoint
counsel and to issue service. See id. at 5-8. Magistrate Judge Katz recommended granting
Plaintiff leave to amend her complaint. See id. at 8.
The same day the Order & Report-Recommendation was issued, Plaintiff filed a letter
stating additional allegations in support of her complaint. See Dkt. No. 11. She subsequently
filed objections to Magistrate Judge Katz's decision. See Dkt. No. 12.
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"Generally, when a specific objection is made to a portion of a magistrate judge's report-
recommendation, the Court subjects that portion of the report-recommendation to a de novo
review." Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 683 (N.D.N.Y. 2015) (citing FED. R.
CIV. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). "To be 'specific,' the objection must, with
particularity, 'identify [1] the portions of the proposed findings, recommendations, or report to
which it has an objection and [2] the basis for the objection.'" Id. (quoting N.D.N.Y. L.R. 72.1(c))
(footnote omitted). "When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review." Id. at 684 (citations omitted). "Similarly, when an objection merely
reiterates the same arguments made by the objecting party in its original papers submitted to the
magistrate judge, the Court subjects that portion of the report-recommendation challenged by
those arguments to only a clear error review." Id. (footnote omitted). After the appropriate
review, "the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
As Plaintiff is proceeding pro se, the Court must review her complaint under a more
lenient standard. See Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003). Thus, "a
document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'"
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
"Although the court has the duty to show liberality towards pro se litigants, . . . there is a
responsibility on the court to determine that a claim has some arguable basis in law before
permitting a plaintiff to proceed with an action in forma pauperis." Moreman v. Douglas, 848 F.
Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted).
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Plaintiff's objections are not specific, and the Court will review Magistrate Judge Katz's
recommendation for only clear error. Plaintiff's complaint, letter, and objections concern the
same general allegations; Plaintiff contends that law enforcement Defendants are utilizing a
"computer reprogramming" system to track and spy on her. Dkt. No. 1 at 7. Plaintiff calls it a
"Laser Beam Electric Computer Device," Dkt. No. 11 at 5, which is used as part of a "Predicting
Policing Algorithm," Dkt. No. 12 at 1, and results in her being wrongfully targeted by law
enforcement, stalked, and harassed.
The Court finds no clear error in Magistrate Judge Katz's recommendation to dismiss
Plaintiff's complaint for failure to state a claim or comply with Rule 8. See Dkt. No. 9.
Magistrate Judge Katz is correct that Plaintiff cannot seek to prosecute Defendants in this civil
action. See id.; see also Ojeda v. Mendez, No. 20-CV-3910, 2021 WL 7906547, *8 (E.D.N.Y.
Dec. 9, 2021), R. & R. adopted, 2022 WL 4662248 (E.D.N.Y. Sept. 30, 2022), aff'd, No. 22-2700,
2024 WL 177706 (2d Cir. Jan. 17, 2024) ("[P]rivate individuals cannot bring criminal charges in
a civil action") (citing Sheehy v. Brown, 335 Fed. Appx.. 102, 104 (2d Cir. 2009) (summary order)
("[F]ederal criminal statutes do not provide private causes of action")). He also correctly
concluded that Plaintiff has not otherwise set forth a cognizable legal claim. See Dkt. No. 9; see
also City of Pontiac Police & Fire Ret. Sys. v. BNP Paribas Sec. Corp., 92 F.4th 381, 390 (2d Cir.
2024) ("The factual allegations must, at the very least, raise a right to relief above the speculative
level. . . . Plaintiffs cannot rely on mere labels and conclusions, or naked assertions absent further
factual enhancement") (citation and quotation marks omitted). As Plaintiff's complaint fails to
allege a cognizable claim, and the Court finds no clear error in any portion of the Order & Report-
Recommendation, the complaint must be dismissed.
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As to amendment, although the Court is unable to discern a single possible claim Plaintiff
could bring based on the currently pled facts, the Court will permit her leave to amend in light of
her pro se status.
After carefully considering the Order & Report-Recommendation, the entire record in this
matter, and the applicable law, the Court hereby
ORDERS that Magistrate Judge Katz's Order & Report-Recommendation (Dkt. No. 9) is
ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED without prejudice and with leave to
file an amended complaint within thirty (30) days of the date of this Order; and the Court further
ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of
this Order, the Clerk of the Court shall enter judgment in Defendants' favor and close this case,
without further order of this Court; and the Court further
ORDERS that the Clerk of the Court serve a copy of this Order upon Plaintiff in
accordance with Local Rules.
IT IS SO ORDERED.
Dated: May 13, 2026
Albany, New York
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