Benjamin v. Wetzel et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
MARK W. BENJAMIN,
Plaintiff, 	No. 6:25-CV-0302
v. 	(AMN/PJE)
JACOB A. WETZEL, New York State Police
Officer; DANIEL OSSA, New York State Police
Officer,
Defendants.
_____________________________________
APPEARANCES:
Mark W. Benjamin
301 Sunshine Place
Apartment J
Cantonsville, Maryland 21228
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER
I. Background and In Forma Pauperis
Plaintiff commenced this action on March 7, 2025, with the filing of a complaint
and, in lieu of paying this Court’s filing fee, an application for leave to proceed in forma
pauperis (“IFP”). See Dkt. Nos. 1 (“Compl.”), 2. On April 1, 2025, plaintiff filed a motion
to appoint pro bono counsel. See Dkt. No. 5.
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Upon review of plaintiff’s application for leave to proceed in forma pauperis, the
undersigned concludes that plaintiff is financially qualified to proceed IFP, and the
motion is granted. See Dkt. No. 21
II. Legal Standards
28 U.S.C. § 1915 provides that, when a plaintiff seeks to proceed IFP, “the court
shall dismiss the case at any time if the court determines that . . . the action or appeal
(i) is 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). “Thus, it is a court’s responsibility to determine that a plaintiff
may properly maintain his complaint before permitting him to proceed further with his
action.” Praileau v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).2
Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
suggest.” 	Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks and citation omitted). As the Second Circuit stated,
our cases have also indicated that we cannot read into pro se
submissions claims that are not consistent with the pro se
litigant’s 	allegations, 	or 	arguments 	that 	the 	submissions
themselves 	do 	not 	suggest, 	that 	we 	should 	not 	excuse
frivolous or vexatious filings by pro se litigants, and that pro
se status does not exempt a party from compliance with
relevant rules of procedural and substantive law. . . .
1 Plaintiff is advised that in forma pauperis status does not excuse him from his financial responsibility for
any costs or fees he may incur in this action.
2 A court’s initial screening of a complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) does not
preclude a later dismissal pursuant to Rule 12(b)(6).” Tisdale v. Hartley, 442 F. Supp. 3d 569, 572-73
(W.D.N.Y. 2020).
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Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation
marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008). 	Although detailed allegations are not required at the
pleading stage, the complaint must still include enough facts to provide the defendants
with notice of the claims against them and the grounds upon which these claims are
based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly,
550 U.S. 544, 555-56 (2007) (“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”).
Further, “pro se pleadings still must comply with . . . the Federal Rules of Civil
Procedure.”3 Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2
(S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994));4 see also
FED. R. CIV . P. 8(a)(2) (providing that a pleading shall contain “a short and plain statement
of the claim showing that the pleader is entitled to relief,” “a short and plain statement of
the grounds for the court’s jurisdiction . . . and . . . a demand for the relief sought . . . .”).
A complaint that fails to comply with the pleading requirements “presents far too a heavy
burden in terms of defendants’ duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of their claims.” 	Gonzales v.
Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a
complaint does not comply with the requirement that it be short and plain, the court has
the power, on its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861
3 Hereafter, “Fed. R. Civ. P.”
4 All unpublished cases cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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F.2d 40, 42 (2d Cir. 1988) (citations omitted). 	However, “[d]ismissal . . . is usually
reserved for those cases in which the complaint is so confused, ambiguous, vague, or
otherwise unintelligible that its true substance, if any, is well disguised.” 	Id. (citations
omitted).
III. Initial Review
A. Complaint
Plaintiff drafted his complaint using a form complaint for a civil case. See Compl.
Plaintiff indicates that this Court has jurisdiction due to both federal question and
diversity of citizenship. See id. at 3. Plaintiff contends that the amount in controversy is
$122,750. See id. at 4. The statement of the claim in plaintiff’s complaint is two
sentences. See id. Plaintiff states that his
claim is based on defendants arresting me without probable cause. Incident
on 10/12/24. 	Charges dismissed on Dec. 11, 2024. 	Oneonta, NY. 	Harm
has been caused by losing place of residence (eviction), loss of job, then,
now, and future. Emotional distress of having no job and relying on others
to live.
Id. He seeks compensatory damages totaling $122,750. See id.
B. Discussion
It is unclear whether plaintiff seeks to proceed pursuant to New York State law,
pursuant to Article I, § 12 of the New York State Constitution or Section 1983. See
generally Compl.5 A section 1983 claim for false arrest “rest[s] on the Fourth
Amendment right of an individual to be free from unreasonable seizures, including
arrest without probable cause.” Smith v. Oneida Cnty. Sheriff Dep’t, No. 6:24-CV-687
5 Assuming, arguendo, plaintiff can state a prima facie claim for false arrest, this Court would have
diversity jurisdiction if he seeks to proceed only on state law claims, and federal question jurisdiction if he
seeks to proceed on federal claims or a combination thereof. The Court has the discretion to review
pendant state law claims if plaintiff establishes a valid federal claim.
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(GTS/MJK), 2024 WL 5496650, at *3 (N.D.N.Y. Dec. 11, 2024), report and
recommendation adopted sub nom. Smith v. Maciol, No. 6:24-CV-0687 (GTS/MJK),
2025 WL 949747 (N.D.N.Y. Mar. 28, 2025) (citing Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996)). “The elements of a Fourth Amendment false arrest claim under 42
U.S.C. § 1983 are the same as those for a false arrest claim under New York law.” Id.
(citing Kraft v. City of New York, 696 F. Supp. 2d 403, 418 (S.D.N.Y. 2010)).
Under New York law, the elements of a false arrest and false imprisonment
claim are: ‘(1) the defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not consent to the
confinement 	and 	(4) 	the 	confinement 	was 	not 	otherwise 	privileged.’”
Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting
McGowan v. United States, 825 F.3d 118, 126 (2d Cir. 2016)).
Elmore v. Onondaga Cnty. Sheriffs, No. 5:23-CV-00508 (GTS/TWD), 2023 WL
4264778, at *7 (N.D.N.Y. June 29, 2023), report and recommendation adopted, No.
5:23-CV-0508 (GTS/TWD), 2023 WL 6216154 (N.D.N.Y. Sept. 25, 2023).
Although plaintiff’s complaint does provide the date of his arrest, that charges
were dismissed, an allegation that no probable cause existed,6 and sets forth damages,
plaintiff’s complaint, as is, is a “threadbare recital of the elements of the cause of action,
supported by mere conclusory statements.” Ashcroft, 555 U.S. at 678.7 Plaintiff’s
complaint does not meet Rule 8’s pleading requirements as it does little more than state
the elements of a false arrest claim. Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
6 See McLennon v. City of New York, 171 F. Supp. 3d 69, 87 (E.D.N.Y. 2016) (“A defendant bears the
burden of raising and proving the existence of probable cause for a plaintiff’s arrest.”).
7 The undersigned recognizes that the form complaint directs the user to “[s]tate as briefly as possible the
facts showing that each plaintiff is entitled to damages or other relief sought,”; yet, the complaint also
advises that users must “[s]tate how each defendant was involved and what each defendant did that
caused the plaintiff harm or violated the plaintiff’s rights . . . .” Compl. at 4.
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Ashcroft, 556 U.S. at 679 (quoting Twombly, 550 U.S. at 556). Thus, plaintiff’s
complaint amounts to “[t]hreadbare recitals of the elements of a cause of action,” and
“tenders naked assertions devoid of further factual enhancement,” which “do[es] not
suffice.” Id. (citing Twombly, 550 U.S. at 555).
The complaint does not include the circumstances leading to his arrest, such as
any facts “concerning his conduct or inaction that led to his arrest.” Hall v. Salaway, No.
20-CV-4651 GRB/AKT, 2021 WL 826169, at *4 (E.D.N.Y. Mar. 3, 2021). Plaintiff does
not identify who was the arresting officer or whether either defendant “instigated an
arrest[,]” Lopez v. City of N.Y., 901 F. Supp. 684, 688 (S.D.N.Y. 1996), whether both
defendants were present during the arrest, the reason(s) provided for the arrest, the
charges ultimately brought against him because of the arrest, or the reason(s) for
dismissal.8 See generally Hernandez v. United States, 939 F.3d 191, 199 (2d Cir.
2019) (stating probable cause exists when a law enforcement officer has “knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.”).
The complaint also fails to specify each defendants’ personal involvement as it
refers to defendants collectively. See Compl. at 4; Moffitt v. Town of Brookfield, 950
F.2d 880, 885 (2d Cir. 1991); Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013); Washington v. Kelly, No. 03-CV-4638 (SAS), 2004 WL 830084, at *3 (S.D.N.Y.
Apr. 13, 2004) (dismissing false arrest claim where plaintiff failed to allege that
8 It is also unclear if all charges connected to the arrest were dismissed or merely some. See, e.g.,
Marcavage v. City of New York, 689 F.3d 98, 109-10 (2d Cir. 2012) (“Defendants prevail if there was
probable cause to arrest Plaintiff[ ] for any single offense.”).
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defendant “was personally involved in his arrest”).9 Without this information, defendants
do not have adequate notice of the claims against them.
As a Court generally should not dismiss a pro se plaintiff’s complaint without first
giving the plaintiff at least one opportunity to amend, it is recommended that plaintiff’s
complaint be dismissed without prejudice and with leave to amend.10 See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
IV. Motion to Appoint Counsel
Plaintiff provides the names of three attorneys he says he corresponded with in
his effort to obtain counsel. See Dkt. No. 5 at 1. He does not attach correspondence.
Plaintiff states that appointment of counsel is warranted because he (1) “has insufficient
income to proceed without (sic) lawyer,” (2) “unwillingness of lawyers to travel, take
seriously without enough compensation,” and (3) “no ‘pot of gold’ at end of rainbow for
them.” Id.
It is well-settled that there is no right to appointment of counsel in civil matters.
See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). The factors to be assessed in
reviewing a motion for counsel are well settled and include, “the merits of the plaintiff’s
case, the plaintiff’s ability to pay for private counsel, the plaintiff’s efforts to obtain a
lawyer, the availability of counsel, and the plaintiff’s ability to gather the facts and deal
with the issues if unassisted by counsel.” Cooper, 877 F.2d at 172. Of these, “[t]he
factor which command[s] the most attention [is] the merits.” Id.
9 The Court has provided plaintiff copies of any unpublished cases cited herein.
10 Should plaintiff be permitted to amend, the amended complaint shall replace the original complaint in its
entirety. That is, the amended complaint must stand on its own without incorporation by reference to the
original complaint. Any facts or claims that are relevant from the original complaint must be repeated in
the amended complaint. Any amended complaint would need to comply with Fed. R. Civ. P. 8(a).
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In Terminate Control Corp. v. Horowitz, the Second Circuit stated:
[T]he district judge should first determine whether the indigent's position
seems 	likely 	to 	be 	of 	substance. 	If 	the 	claim 	meets 	this 	threshold
requirement, 	the 	court 	should 	then 	consider 	the 	indigent’s 	ability 	to
investigate the crucial facts, whether conflicting evidence implicating the
need for cross-examination will be the major proof presented to the fact
finder, the indigent’s ability to present the case, the complexity of the legal
issues and any special reason in th[e] case why appointment of counsel
would be more likely to lead to a just determination.
28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61
(2d Cir. 1986)). Appointment of counsel must be made carefully to preserve the
“precious commodity” of volunteer lawyers for those litigants who truly need a lawyer’s
assistance. Cooper, 877 F.2d at 172-73.
Accordingly, in deference to the limited resources available to the court to
serve the interests of the many indigent litigants who pursue civil claims
before it, and recognizing the “thankless burden” associated with such
assignments, Miller v. Pleasure, 296 F.2d 283, 285 (2d Cir. 1961), cert.
denied, 370 U.S. 964, 82 S. Ct. 1592 (1962), courts should not grant such
applications indiscriminately, but instead must exercise good judgment and
restraint when doing so. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172,
173-74 (2d Cir. 1989).
Janneh v. Regal Entm’t Grp., No. 3:07-CV-0079 (TJM/DEP), 2008 WL 11506720, at *1
(N.D.N.Y. May 21, 2008).
Where a plaintiff does not provide a Court with evidence, as opposed to mere
allegations, relating to his claims, such party does not meet the Second Circuit’s first
requirement relative to applications seeking appointment of pro bono counsel. See
Harmon v. Runyon, No. 96-CV-6080, 1997 WL 118379, at *1 (S.D.N.Y. Mar. 17, 1997)
(noting that “a threshold requirement” in evaluating a pro se plaintiff's request for the
appointment of counsel is that the plaintiff's claim “seems likely to be of substance[,]”
which the plaintiff must demonstrate through “evidence . . . support[ing] her claims
regarding [the] defendant's allegedly improper actions” (internal citations omitted)); see
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also Hodgson v. Wood, No. 9:22-CV-0275 (LEK/DJS), 2023 WL 12106549, at *2, *2 n.2
(N.D.N.Y. Sept. 7, 2023) (denying appointment of counsel at the summary judgment
stage, concluding that the plaintiff provided the Court with only allegations relating to his
claim and noting that “[t]he record evidence introduced by defendants in support of their
motion for summary judgment does not support plaintiff's claims.”).
Here, as this matter has just commenced and all that has been filed in this action
is plaintiff’s complaint, which is based on plaintiff’s own allegations, the Court does not
yet have evidence before it to assess whether his positions are likely to be of
substance. Moreover, that plaintiff cannot (1) afford counsel11; or (2) find an attorney
willing to take his case, based on the three attorneys he contacted, does not, alone,
warrant appointment of counsel.12
V. Conclusion
WHEREFORE, it is hereby
ORDERED, that plaintiff’s motion to proceed IFP (Dkt. No. 2) is GRANTED; and
it is further
ORDERED, that plaintiff’s motion to appoint counsel (Dkt. No. 5) is DENIED
without prejudice; and it is
RECOMMENDED, that plaintiff’s complaint (Dkt. No. 1) be DISMISSED without
prejudice and with opportunity to amend; and it is further
11 	The ability to afford counsel is just one inquiry a court must make in assessing whether to appoint
counsel. See Massey v. Greinal, 164 F. Supp. 2d 377, 378 (S.D.N.Y. 2001) (quoting Hodge v. Police
Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)) (internal quotations omitted).
12 Similarly, although he does not so argue, the fact that plaintiff is inexperienced in legal matters and
would prefer the assistance of counsel does not satisfy this Court’s requirements for appointment of
counsel. See Gray v. Fidelity Investment, 1:20-CV-718 (DNH/CFH), 2020 WL 5942254, at *2 (N.D.N.Y.
Oct. 6, 2020) (“Lack of knowledge of the law does not suffice to demonstrate that appointment of counsel
would increase the likelihood of a just determination in this case.”).
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RECOMMENDED, that if the District Judge adopts this Report-Recommendation
& Order, plaintiff be given thirty days from the filing date of the District Judge’s Order
adopting this Report-Recommendation and Order to file an amended complaint, and if
the plaintiff does not so file, the action may be closed without need for further order of
the Court, and if plaintiff does so file, the amended complaint shall be reviewed for
substantive sufficiency pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is
ORDERED, that the Clerk serve a copy of this Decision on plaintiff in accordance
with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which to
file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
(14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984
F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d
15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a), 72.13
IT IS SO ORDERED.
Dated: December 8, 2025
Albany, New York
13 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
(3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17)
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See F ED. R. C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
Id. § 6(a)(1)(c).
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