1:25-cv-00846•Stemmons v. Glens Falls Hospital et al
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ ADAM STEMMONS, Plaintiff, 1:25-CV-0846 v. (GTS/ML) GLENS FALLS HOSPITAL; ALBANY MED HEALTH SYSTEM; DONNA VOLCHECK, RN; ADRIAN A. MORRIS, MD; DR. APRIL BEASLEY-IRVING; SUSAN K. ROBERTS- MCMANUS, LMSW; GLENS FALLS CITY; and GLENS FALLS POLICE DEPARTMENT, Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: ADAM STEMMONS Plaintiff, Pro Se 1343 Salem Road York, Pennsylvania 17404 FIZGERALD MORRIS BAKER FIRTH, P.C. JOHN D. ASPLAND, ESQ. Counsel for Defendants Glens Falls City and Glens Falls Police Department 68 Warren Street Glens Falls, New York 12801 MIROSLAV LOVRIC, United States Magistrate Judge REPORT and RECOMMENDATION I. BACKGROUND A. Procedural History On June 27, 2025, Plaintiff Adam Stemmons (“Plaintiff”) commenced this civil rights action pro se by the filing of a complaint alleging that his rights were violated by Defendants Glens Falls Hospital, Albany Med Health System, Donna Volchek, Adrian A. Morris, Dr. April Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 1 of 240
2 Beasley-Irving, Susan K. Roberts-Mcmanus, Glens Falls City, and Glens Falls Police Department (collectively “Defendants”). (Dkt. No. 1.) Plaintiff, who currently resides in Pennsylvania, did not pay the filing fee and sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 3.) On July 10, 2025, the undersigned denied Plaintiff’s IFP application as incomplete. (Dkt. No. 15.) Plaintiff was informed that if he wished to pursue this action he must either (1) pay the filing fee in full, or (2) submit a completed and signed IFP application. (Id.) On July 10, 2025, Plaintiff submitted an amended IFP application. (Dkt. No. 16.) On August 11, 2025, the undersigned denied Plaintiff’s amended IFP application as incomplete. (Dkt. No. 22.) Plaintiff was informed that if he wished to pursue this action he must either (1) pay the filing fee in full, or (2) submit a completed and signed IFP application. (Id.) On August 12, 2025, Plaintiff filed a second amended IFP application. (Dkt. No. 24.) On September 11, 2025, Plaintiff filed an amended complaint as of right pursuant to Fed. R. Civ. P. 15. (Dkt. No. 25.) On September 28, 2025, Plaintiff filed a letter motion requesting a court conference. (Dkt. No. 26.) On September 30, 2025, Plaintiff’s letter motion was denied. (Dkt. No. 27.) The Court noted that Plaintiff’s second amended IFP application (Dkt. No. 24) and Amended Complaint (Dkt. No. 25) were before the Court for a sufficiency review pursuant to 28 U.S.C. § 1915 and that if any claims survive review and Defendants are properly served, then an initial conference would be scheduled. (Dkt. No. 27.) On September 30, 2025, Plaintiff appealed the undersigned’s order denying his letter motion. (Dkt. No. 28.) On November 18, 2025, United States District Judge Glenn T. Suddaby denied Plaintiff’s appeal of the undersigned’s order. (Dkt. No. 30.) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 2 of 240
3 On December 12, 2025, Plaintiff filed a letter motion requesting a hearing with the undersigned. (Dkt. No. 32.) On December 15, 2025, the undersigned denied Plaintiff’s letter motion. (Dkt. No. 33.) On December 16, 2025, Plaintiff appealed the undersigned’s denial of his letter motion, which is pending before Judge Suddaby. (Dkt. No. 34.) On December 30, 2025, Defendants Glens Falls and Glens Falls Police Department filed a memorandum of law in opposition to Plaintiff’s appeal. (Dkt. No. 35.) On February 4, 2026, Plaintiff filed a document that was docketed as an objection and challenged the number of pages contained in the opposition filed by Defendants Glens Falls City and Glens Falls Police Department because it contained the cases cited in the opposition. (Dkt. No. 38.) Plaintiff asked that the Court “dismiss the full filing by” Defendants Glens Falls and Glens Falls Police Department. (Dkt. No. 38 at 2.) On February 4, 2026, the undersigned denied Plaintiff’s filing at Dkt. No. 38. (Dkt. No. 39.) On February 9, 2026, Plaintiff filed a notice of interlocutory appeal regarding the undersigned’s text order at Dkt. No. 39. (Dkt. No. 41.) By separate Order, dated February 18, 2026, this Court granted Plaintiff’s Second Amended IFP application. (Dkt. No. 45.) Now, in accordance with 28 U.S.C. § 1915(e), the Court will sua sponte review the sufficiency of the Amended Complaint. B. Amended Complaint Construed as liberally1 as possible, the Amended Complaint appears to allege violations of Plaintiff’s civil rights by Defendants. (See generally Dkt. No. 25.) The Amended Complaint is sparse on facts, but appears to allege that Plaintiff has been diagnosed with various mental health conditions that resulted in his admission to Defendant Glens Falls Hospital throughout the 1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 3 of 240
4 years 2007 to 2009. (Dkt. No. 25 at 2.) Plaintiff alleges that in 2010 he experienced a “major medical issue” that resulted in criminal charges against him. (Id.) Plaintiff alleges that, despite his due diligence, he was unable to obtain his medical records from Defendant Glens Falls Hospital until May 8, 2025, and those medical records revealed additional diagnoses that he was unaware of. (Dkt. No. 25 at 3-4, 11.) Plaintiff alleges that his IQ increased since his 2010 admission to Defendant Glens Falls Hospital and he has since earned an Associates degree, a Bachelors degree, and is currently working on earning a Masters degree. (Id. at 3-4; see also id. at 12 [outlining Plaintiff’s academic accomplishments].) The Amended Complaint alleges that in 2010, while admitted to the mental health unit in Defendant Glens Falls Hospital, Plaintiff experienced a swollen foot. (Dkt. No. 25 at 4, 10.) Plaintiff alleges that he unsuccessfully sought assistance from the staff and thus, was “forced to try and get himself help.” (Id. at 4, 10.) The Amended Complaint alleges that Defendant Volchek stepped in front of Plaintiff to stop him from advancing toward an exit and, in doing so, Defendant Volcheck got hurt when Plaintiff tried to move her. (Id. at 4, 10.) Plaintiff alleges that he was merely trying to get himself medical attention. (Id. at 5.) Plaintiff alleges that he received some of the medical records from this 2010 admission to Defendant Glens Falls Hospital but believes that “some other records a[re] being still held by [Defendant] Glens Falls Hospital . . . and others were destroyed in the last decade.” (Dkt. No. 25 at 5.) The Amended Complaint acknowledges that “[t]his case will have the statute of limitations brought up” but asserts that because Plaintiff is not a lawyer, he “should not be held responsible for any issue with the statute of limitations.” (Dkt. No. 25 at 5.) Moreover, Plaintiff alleges that because he obtained medical records on May 8, 2025, “that allows him to file civil Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 4 of 240
5 suit[] against all the defendants and to reopen the criminal case.” (Id. at 6; accord id. at 7 [alleging that the release of Plaintiff’s medical records on May 8, 2025 “restart[s] the statute of limitations.”].) Plaintiff alleges that he was diligent in his attempts to obtain his medical records. (Id. at 17-18.) The Amended Complaint alleges that Defendant Glens Falls Police Department charged Plaintiff with threatening a social worker and illegally released his mugshot. (Dkt. No. 25 at 8.) Plaintiff alleges that he just recently “got[] his mug shot removed from one search engine.” (Id.) Plaintiff alleges that the illegal release of his mug shot was a violation of New York law and “had a massive impact on his ability to get a[n] interview for a job.” (Id.) The Amended Complaint alleges that the public defender who represented Plaintiff during one or more of the criminal proceedings brought against him neglected to request a delay of the criminal proceeding pending the conclusion of a New York State investigation into medical records keeping by Defendant Glens Falls Hospital. (Dkt. No. 25 at 9.) Plaintiff alleges that he entered a plea of no contest but the documentation was “altered to indicate a guilty plea.” (Id.) Plaintiff alleges that the public defender’s officer refused to handle his appeals. (Id. at 10.) The Amended Complaint alleges that the medical records that Plaintiff received on May 8, 2025, reveal that in May 2010 he had a medical issue related to varicose veins, which reflects that Plaintiff’s gout and varicose veins were not “in his head” and that Defendant Glens Falls Hospital “hid[] prior knowledge of past medical issues.” (Dkt. No. 25 at 15-16.) Based on these factual allegations, Plaintiff appears to assert claims pursuant to 42 U.S.C. § 1983 and 18 U.S.C. §§ 1961-1968 Racketeering Influenced and Corrupt Organizations Act (“RICO”) violations. (Dkt. No. 25 at 20-24.) As relief, Plaintiff seeks $25,000,000 in damages. (Dkt. No. 25 at 24.) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 5 of 240
6 II. LEGAL STANDARDS “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (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). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted). “In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 6 of 240
7 Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). III. ANALYSIS After carefully considering the matter, I recommend that the Amended Complaint be dismissed for four reasons. First, the undersigned notes that Plaintiff’s Amended Complaint is woefully deficient. The Amended Complaint contains few allegations of fact and even fewer references to the named Defendants. Indeed, aside from identifying Defendants in the introductory paragraphs, the Amended Complaint fails to make any mention by name of Defendants Morris, Beasley- Irving, or Roberts-Mcmanus. (See Dkt. No. 25 at 1; Dkt. No. 25, Attach. 1 at 1.) In addition to the introductory paragraphs, the Amended Complaint mentions Defendant Volcheck only one time. (Dkt. No. 25 at 1, 4; Dkt. No. 25, Attach. 1 at 1.) Providing allegations of fact concerning the actions of each Defendant is a vital pleading requirement, and Plaintiff’s failure to do so is fatal to his action. See LaPietra v. City of Albany Police Dep’t, 19-CV-1527, 2020 WL 5891888, at *8-9 (N.D.N.Y. Oct. 5, 2020) (Dancks, M.J.) (recommending dismissal of the plaintiffs’ claims where they “simply list[ed] different groups of unidentified defendants in the caption of the Complaint and generally allege[d] that on December 16, 2014, their Fourth Amendment constitutional rights were violated.”), report and recommendation adopted, 2020 WL 7021589 (N.D.N.Y. Nov. 30, 2020) (McAvoy, J.); Cipriani v. Buffardi, 06-CV-0889, 2007 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 7 of 240
8 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (Khan, J.) (citing Gonzalez v. City of New York, 97- CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)) (“Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.”); see also Crown v. Wagenstein, 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden’s name in complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997) (same). Second, plaguing this action further is the fact that the statute of limitations has run on any civil rights claim Plaintiff seeks to assert under 42 U.S.C. § 1983, which establishes a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States by a person acting under color of state law. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983); see also Myers v. Wollowitz, 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (Section 1983 “is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights.”). In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege that (1) “some person has deprived him of a federal right,” and (2) “the person who has deprived him of that right acted under color of state . . . law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)). The events purportedly giving rise to Plaintiff’s claims occurred in 2010, when an altercation apparently occurred at Defendant Glens Falls Hospital resulting, at some point in time, with Plaintiff being charged with a crime, for which he ultimately pled guilty. (Dkt. No. 25 at 4); Pauk v. Bd. of Trustees of City Univ. of New York, 654 F.2d 856, 859 (2d Cir. 1981) (federal claim accrues when the plaintiff “knows or has reason to know” of the injury that is the Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 8 of 240
9 basis for his action). Notwithstanding, Plaintiff did not commence this action until June 27, 2025. With a three-year statute of limitations for § 1983 actions, it appears that this action is not timely. Bailey v. Tricolla, 94-CV-4597, 1995 WL 548714, at *3 (E.D.N.Y. Sept. 12, 1995) (noting that in the absence of a congressional dictate as to a limitations period, we apply the most appropriate state statute of limitations, which for 1983 actions is the general personal injury statute setting forth a limitations period of three years); see also Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (noting that the applicable limitations period for § 1983 actions in New York is three years). Moreover, the statute of limitations for a civil RICO claim is four years. McKenzie v. Artists Rights Society, Inc., 757 F. Supp. 3d 427, 442 (S.D.N.Y. 2024) (quoting Koch v. Christie’s Int’l PLC, 699 F.3d 141, 148 (2d Cir. 2012)) (“RICO claims are subject to a four-year statute of limitations.”) Thus, because Plaintiff did not file this action until approximately fifteen years after the incident, it is time-barred unless a tolling principle applies so as to excuse the delay.2 Tolling is not warranted under the circumstances alleged in the Amended Complaint. “Although the Second Circuit recognizes the continuing violation doctrine, it has qualified that the doctrine applies only to claims ‘composed of a series of separate acts that collectively constitute one unlawful practice,’ or ‘claims that by their nature accrue only after the plaintiff has 2 The failure to file an action within the limitations period is an affirmative defense, and thus, a plaintiff is not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain circumstances where the facts supporting the statute of limitations defense are set forth in the papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on statute of limitations grounds). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 9 of 240
10 been subjected to some threshold amount of mistreatment.’” Hall v. Clinton Cnty., 18-CV-1405, 2020 WL 1923236, at *5 (N.D.N.Y. Apr. 21, 2020) (Suddaby, C.J.) (quoting Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015)). Moreover, equitable tolling is available in “rare and exceptional” cases where “extraordinary circumstances prevented a party from timely performing a required act,” and “the party acted with reasonable diligence throughout the period” to be tolled. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005); see also Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (“Equitable tolling is an extraordinary measure that applies only when plaintiff is prevented from filing despite exercising that level of diligence which could reasonably be expected in the circumstances.”). I recommend that the Court decline to find the continuing violation doctrine or equitable tolling applicable to Plaintiff’s claims and find that there is no other apparent basis for tolling the statute of limitations. Although Plaintiff argues that he should not be responsible for the statute of limitations because he is not a lawyer, Courts have consistently dismissed untimely actions brought by pro se litigants. (Dkt. No. 25 at 5); see, e.g., Wallace v. City of New York, 22-CV-3414, 2026 WL 392345, at *3 (S.D.N.Y. Feb. 12, 2026) (dismissing the pro se plaintiff’s untimely Section 1983 claims); Beaman v. New York, 25-CV-1402, 2026 WL 189446, at *2 (N.D.N.Y. Jan. 22, 2026) (Coombe, J.) (same). Moreover, I reject Plaintiff’s argument that his receipt of medical records resets the statute of limitations in this action. (Dkt. No. 25 at 6-7.) Plaintiff brought an analogous proceeding in this Court in 2014, which was also dismissed for, among other things, being untimely. Stemmons v. Volchek, 1:14-CV-1456 (TJM/RFT) (“Stemmons I”, Dkt. No. 4 at 6-7; Stemmons I, Dkt. No. 9 at 2.) Hence, Plaintiff cannot sensibly claim that he was prevented from filing this action despite exercising reasonable diligence when he brought an action regarding the same allegations more than 10 years ago. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 10 of 240
11 Third, presuming for the moment that Plaintiff’s tardiness in bringing this action could be excused through some tolling provision, Plaintiff fails to state a claim upon which relief may be granted pursuant to 42 U.S.C. § 1983. Plaintiff’s claims against Defendants Glens Falls Hospital, Albany Med Health System, Volcheck, Morris, Beasley-Irving, and Roberts-Mcmanus are deficient because he fails to assert facts that plausibly suggest that his constitutional rights were violated by a person acting under color of state law. It is well-settled that parties may not be held liable under § 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting state action requirement under § 1983). State action is an essential element of any § 1983 claim. See Gentile v. Republic Tobacco Co., 95-CV-1500, 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (Pooler, J.) (citing Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994) (McAvoy, C.J.)). “Here, Glens Falls Hospital staff are not state actors, but rather, are employees of a private, not-for-profit hospital.” Stemmons I, Dkt. No. 4 at 7-8 (citing Crawley v. Nat’l Life Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003) (“For the conduct of a private entity to be fairly attributable to the state, there must be such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.”)). Similarly, Plaintiff does not appear to be asserting any claims against his criminal defense attorney but to the extent that the Amended Complaint is construed as asserting claims against his defense attorney, those claims fail. Polk Cnty. v. Dodson, 454 U.S. 312, 321 (1981); Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (noting that a claim for ineffective assistance of counsel is not actionable in a § 1983 proceeding and further citing Polk Cnty. v. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 11 of 240
12 Dodson for the proposition that public defenders do not act under color of state law and are not subject to suit under § 1983). With regard to Defendants Glens Falls City and Glens Falls Police Department, Plaintiff fails to allege facts plausibly suggesting that his constitutional rights were violated pursuant to an official policy or custom. Adams v. City of Syracuse, 21-CV-0650, 2025 WL 2772081, at *28 (N.D.N.Y. Sept. 29, 2025) (Nardacci, J.) (internal brackets omitted) (quoting Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)) (“[T]o hold a municipality liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.”). A plaintiff can establish the existence of an official policy or custom through “(1) a formal policy endorsed by the municipality; (2) actions directed by the government’s authorized decisionmakers or those who establish governmental policy; (3) a persistent and widespread practice that amounts to a custom of which policymakers must have been aware; or (4) a constitutional violation resulting from policymakers’ failure to train municipal employees.” Deferio v. City of Syracuse, 770 F. App’x 587, 589-90 (2d Cir. 2019) (internal quotations, citations, and brackets omitted). Plaintiff’s Monell claim necessarily fails because “[i]t is well-established that a Monell claim cannot succeed without an underlying violation, and here there is no constitutional violation.” Mastromonaco v. City of Westchester, 779 F. App’x 49, 51 (2d Cir. 2019); see also DeRaffele v. City of New Rochelle, 15-CV-0282, 2017 WL 2560008, at *6 (S.D.N.Y. June 13, 2017) (“It is well-established that a Monell claim cannot lie in the absence of an underlying constitutional violation.”). It is similarly well-established that “Monell does not provide a Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 12 of 240
13 separate cause of action . . . it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). Plaintiff has not plausibly alleged a constitutional violation against an employee of Defendant Glens Falls City. Without an “independent constitutional violation,” Segal, 459 F.3d at 219, Plaintiff’s municipal liability claim against Defendant Glens Falls City must be dismissed. Even if an underlying cause of action survived, Plaintiff has not plausibly alleged a Monell claim against Defendant Glens Falls City,3 necessitating dismissal on this independent basis. Plaintiff essentially complains of discrete incidents during which Plaintiff communicated with Sergeant Arnold, Sergeant Eggleston, William Holmes, Zach Flewelling, and Officer James Fiorini—who the Amended Complaint does not allege work for Defendant Glens Falls Police Department— and they did not act properly. (See generally Dkt. No. 25 at 23-24; but see Dkt. No. 25 at 2 [listing “GFPD sgt 9Michelle Arnold Formal GFPD sgt 10Christopher eggleston, formal officer 11William holmes, officer “now with Hudson Falls PD” 12Zach Flewelling and officer 13James Fiorini” under heading titled “Defendant’s and there contacts are” (errors in 3 “Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal . . . department does not have the capacity to be sued as an entity separate from the municipality in which it is located.” White v. Syracuse Police Dep't, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly against the Department.”)), report and recommendation adopted by 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). Hence, any claims against Defendant Glens Falls Police Department should be dismissed because it is not an entity amenable to suit. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 13 of 240
14 original)].) There is no indication that Plaintiff can assert a policy or custom, which would support municipal liability based on these facts. See Flagg v. NYS Division of Parole, 19-CV- 0886, 2019 WL 5002215, at *5 (N.D.N.Y. Aug. 15, 2019) (Baxter, M.J.) (citing DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998)) (“A single incident, particularly if it involved individuals below the policy-making level is insufficient to state a Monell claim.”), report and recommendation adopted, 2019 WL 4963112 (N.D.N.Y. Oct. 8, 2019) (McAvoy, J.); Wright v. City of Syracuse, 10-CV-0661, 2014 WL 1293527, at *15 (N.D.N.Y. Mar. 31, 2014) (Suddaby, J.) (“Isolated acts of municipal employees are typically not sufficient to establish municipal liability.”). In addition, none of Plaintiff’s allegations reflect a failure to train or “deliberate indifference” to the rights of persons who would come into contact with employees of Defendant County of Oneida. Further, the Amended Complaint fails to allege facts plausibly suggesting that Defendants Glens Falls City or Glens Falls Police Department violated any of Plaintiff’s rights guaranteed by the U.S. Constitution. “Moreover, in light of Plaintiff’s guilty plea, and the paucity of facts contained in the [Amended] Complaint, it appears to this Court that this action is barred.” Stemmons I, Dkt. No. 4 at 8. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The Amended Complaint alleges that Plaintiff pleaded no contest to the criminal charges that were brought against him. (Dkt. No. 25 at 9.) Under such scenario, § 1983 is not the proper Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 14 of 240
15 mechanism for Plaintiff to obtain relief. Stemmons I, Dkt. No. 4 at 9; see Miller v. Stallworth, 2018 WL 3974730, at *4 (D. Conn. Aug. 20, 2018) (holding that “[i]f the [c]ourt were to rule in plaintiff’s favor on his claims . . . this would surely impugn the validity of the charges to which he himself alleges he has entered a plea of no contest.”). Therefore, until and unless Plaintiff can show that he has been acquitted of the charges or that his conviction or sentence has been overturned, I find that this action is barred and dismissal is appropriate. Fourth, Plaintiff fails to state a claim upon which relief may be granted pursuant to 18 U.S.C. §§ 1961-1968. The civil RICO enforcement provision states that “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962] . . . may sue . . . in any appropriate United States district court and shall recover threefold the damages[.]” 18 U.S.C. § 1964(c). In order to state a violation of Section 1962, and thus, a claim under the civil RICO enforcement provision, a plaintiff must allege facts showing: “(1) that the defendant (2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect interstate or foreign commerce.” Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983) (quoting § 1962(a)-(c)). Such a person must also “allege that he was ‘injured in his business or property by reason of a violation of section 1962.’” Moss, 719 F.2d at 17 (quoting § 1964(c)) (italics in original). “Local Rule 9.2 requires a party asserting a claim under RICO to ‘file a RICO statement within thirty (30) days of the filing of the pleading containing such claim.’” Poole v. Bendixen, 20-CV-0697, 2021 WL 3737780, at *11 (N.D.N.Y. Aug. 24, 2021) (Suddaby, C.J.). Failure to timely file a RICO statement pursuant to this rule is grounds for dismissal of the RICO claims. See Pierce v. Homecomings Fin. LLC, 17-CV-0882, 2017 WL 5991750, at *2 n.2 (N.D.N.Y. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 15 of 240
16 Dec. 4, 2017) (Sannes, J.) (noting that, where a plaintiff failed to file a RICO statement pursuant to Local Rule 9.2, “[p]laintiff's RICO claim may be dismissed for this reason alone”); see also Amaker v. Kelley, 01-CV-0877, 2009 WL 385413, at *11 (N.D.N.Y. Feb. 9, 2009) (Peebles, M.J.) (holding that failure to file a RICO statement “provid[es] a threshold for dismissal of [a] plaintiff's RICO claim”); Spoto v. Herkimer Cnty. Trust, 99-CV-1476, 2000 WL 533293, at *3 n.2 (N.D.N.Y. Apr. 27, 2000) (Munson, J.) (“[T]he [c]ourt would be justified to dismiss [the] complaint based upon the[ ] very untimely filing of the[ ] Local Rule 9.2 RICO Statement.”). Plaintiff filed his complaint on June 27, 2025, and the Amended Complaint on September 11, 2025. (Dkt. Nos. 1, 25.) To date, Plaintiff has not filed a RICO statement (see generally docket sheet) and the time to do so pursuant to Local Rule 9.2 expired. Based on Plaintiff's violation of Local Rule 9.2, I recommend that Plaintiff's RICO claim against Defendants be dismissed. See Murphy v. Onondaga Cnty., 18-CV-1218, 2022 WL 819281, at *7 (N.D.N.Y. Mar. 18, 2022) (Sharpe, J.) (dismissing the plaintiff's RICO conspiracy claims where the plaintiff filed a late RICO statement); Poole, 2021 WL 3737780, at *11 (dismissing RICO claims where the plaintiffs failed to timely file a RICO statement under Local Rule 9.2, “regardless of Plaintiffs’ good-faith work on other aspects of th[e] case.”). Moreover, even if Plaintiff’s failure to file a RICO statement were excused, Plaintiff fails to state a claim upon which relief may be granted. The Amended Complaint fails to allege facts plausibly suggesting “how the government [actors] joined the criminal enterprises; when the conspiracies began; what roles each of the alleged co-conspirators played; how precisely the conspiracies operated; or how he was negatively impacted by these activities.” Gibbs v. Bank of Am., N.A., 22-CV-0011, 2022 WL 1469402, at *5 (E.D.N.Y. May 10, 2022). Plaintiff’s conclusory allegation in the Amended Complaint that Defendants engaged in racketeering Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 16 of 240
17 evinced by Plaintiff’s “repeated admissions” to Defendant Glens Falls Hospital, the hiding of medical records, the physical torture, the obstruction of justice, threats, and the failure to provide medical treatment, does not plausibly suggest a violation of the RICO statute. (Dkt. No. 25 at 22-24.) For each of these reasons, I recommend that the Amended Complaint be dismissed.4 IV. OPPORTUNITY TO AMEND Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated 4 Stemmons I was dismissed on June 4, 2015, after a sua sponte review of the complaint pursuant to 28 U.S.C. § 1915. (Stemmons I, Dkt. Nos. 9, 10.) Plaintiff’s allegations in Stemmons I against Defendants Volcheck and Beasley-Irving functionally mirror those set forth in this action. (Compare Stemmons I, Dkt. No. 1, with Dkt. No. 25.) “A plaintiff cannot commence a new action seeking to review the same issues that this Court already decided against him.” Phillips v. Schenectady Child Support Unite, 24-CV-0853, 2025 WL 895035, at *4 n.10 (N.D.N.Y. Mar. 24, 2025) (Evangelista, M.J.), report and recommendation adopted, 2025 WL 1191320 (N.D.N.Y. Apr. 24, 2025) (Sannes, C.J.). Hence, collateral estoppel may be another alternative basis upon which this Court may dismiss the claims set forth in the Amended Complaint against Defendants Volcheck and Beasley-Irving. See Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (“[C]ollateral estoppel applies when: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was a full and fair opportunity for litigation in the prior proceeding, and (4) the issues previously litigated were necessary to support a valid and final judgment on the merits.”) (internal quotation marks and citations omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 17 of 240
18 differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).5 The issues identified in the Amended Complaint are substantive, such that a better pleading cannot cure them. As a result, I recommend that the Amended Complaint be dismissed without leave to amend. Stemmons I, Dkt. No. 4 at 9 [recommending dismissal of Plaintiff’s complaint without leave to amend because “any amendment would be futile in light of other infirmities plaguing this action.”]; Stemmons I, Dkt. No. 9 at 2 [adopting Magistrate Judge Treece’s recommendation and dismissing the complaint with prejudice].) ACCORDINGLY, it is respectfully RECOMMENDED that Plaintiff’s Amended Complaint (Dkt. No. 25) be DISMISSED without leave to amend, pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further ORDERED that the Clerk of the Court shall file a copy of this report and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.6 5 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30. 6 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 18 of 240
19 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.7 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)). Dated: February __, 2026 Binghamton, New York 7 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. 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. Fed. R. Civ. P. 6(a)(1)(C). 26 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 19 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Blue-Striped Flag Appeal Filed by Adams v. City of Syracuse, 2nd Cir., October 17, 2025 2025 WL 2772081 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Robert ADAMS, Jr., Plaintiff, v. CITY OF SYRACUSE et al., Defendants. 5:21-cv-00650 (AMN/MJK) | Signed September 29, 2025 Attorneys and Law Firms A. CABRAL BONNER, ESQ., CHARLES A. BONNER, ESQ., LAW OFFICES OF BONNER & BONNER, 3060 Kerner Boulevard – Suite A, San Rafael, California 94901, Attorneys for Plaintiff. JESSE P. RYDER, ESQ., RYDER LAW FIRM, 6739 Myers Road, East Syracuse, New York 13257, Attorneys for Plaintiff. DANIELLE R. SMITH, ESQ., TODD M. LONG, ESQ., CITY OF SYRACUSE, CORPORATION COUNSEL, 233 East Washington Street, Room 300 City Hall, Syracuse, New York 13202, Attorneys for Defendants. MEMORANDUM-DECISION AND ORDER Anne M. Nardacci, United States District Judge: I. INTRODUCTION *1 On June 3, 2021, Robert Adams, Jr. (“Plaintiff”), commenced this civil rights action against Police Officers Joseph Tolone, 1 Aaron Cecile, and Lashonda Russell (the “Responding Officers”); Detectives Ryan Brimmer and Jeffrey Beauchine (the “Detectives” and together with the Responding Officers, the “Individual Defendants”); the City of Syracuse (“Defendant City,” and, together with the Individual Defendants, “Defendants”); Does 1-100 (the “Doe Defendants”); and others, alleging violations of federal and state law arising from his arrest and subsequent monthslong detention during a since-dismissed criminal prosecution. Dkt. No. 1 (“Complaint”). Presently before the Court 2 is Defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Dkt. No. 77 (“Motion”), Plaintiff's opposition, Dkt. No. 85, and Defendants’ reply in further support, Dkt. No. 90. For the reasons set forth below, the Motion is granted in part and denied in part. II. BACKGROUND 3 A. The Parties Plaintiff is a black man who has lived in Syracuse for most of his life. See, e.g., Dkt. No. 77-44 at 16:5-17:4. In May 2019, he was 55 years old, approximately 5’7” in height and 160 pounds in weight, and lived in an apartment building located at 941 James Street. Dkt. No. 90-1 at ¶ 515; Dkt. No. 77-23. At that time, Plaintiff's medical diagnoses included, inter alia, alcoholism, depression, and schizophrenia. Dkt. No. 77-42 at 2-3; Dkt. No. 77-55 at ¶ 454. Defendant City is a large municipality in New York State with a police department that employs the Individual Defendants. As of May 2019, Officer Cecile had been a patrol officer for approximately two years, Dkt. No. 77-47 at 21:24-22:15; Officer Russell had been a patrol officer for approximately three years, Dkt. No. 77-46 at 9:17-25; Officer Tolone had been a patrol officer for approximately three years, Dkt. No. 77-48 at 9:24-10:2; Detective Brimmer had been a detective for less than three years, Dkt. No. 77-49 at 12:11-13:8; and Detective Beauchine had been a detective for approximately nine years, Dkt. No. 77-51 at 16:21-17:17. B. Relevant Events 1. May 1, 2016 Shortly after 7:30 p.m. on May 1, 2019, police (apparently including Officer Russell) and emergency medical services found Plaintiff intoxicated and lying on the side of a road in Syracuse. Dkt. No. 77-42 at 2, 50-51; Dkt. No. 77-46 at 104:15-25. Plaintiff was covered in feces and urine and reported drinking six to seven “Na[tt]y Daddy beverages,” a brand of malt liquor. Dkt. No. 77-42 at 2, 51; Dkt. No. 77-43 at 49:11-13. Plaintiff was transported to a local hospital emergency room for treatment, where his blood alcohol level (“BAC”) was measured at 0.422 percent later that night. 4 Dkt. No. 77-55 at ¶ 311; Dkt. No. 77-42 at 25. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 20 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 2. May 6, 2016 a. 941 James Street *2 At around 3:00 p.m. on May 6, 2019, Plaintiff began drinking in and in front of his apartment building at 941 James Street. Dkt. No. 77-55 at ¶¶ 407, 410. By 4:00 or 5:00 p.m., he had consumed three or four 24-ounce cans of Natty Daddy. Id. at ¶ 411. Around that time, a younger man, Charles Jones, came over to socialize with Plaintiff. Id. The two had known each for several years and, while they were not actually related, Plaintiff referred to Mr. Jones as his nephew and Mr. Jones called Plaintiff uncle. Dkt. No. 77-43 at 71:8-15; Dkt. No. 77-44 at 59:1-7, 98:16-23. Plaintiff and Mr. Jones walked to a store to purchase four of five more 24- ounce cans of Natty Daddy that they could share. Dkt. No. 77-55 at ¶¶ 414, 416. Plaintiff paid for the alcohol because Mr. Jones had no money. Id. at ¶ 415. The two returned to 941 James Street, where a woman (Vanessa Goldych) and an unnamed man were outside the building. Id. at ¶¶ 417, 419, 421-22, 424. Plaintiff continued drinking Natty Daddy and joined Mr. Jones, Ms. Goldych, and the unnamed man in front of 941 James Street. Id. at ¶¶ 419-20. At some point, Mr. Jones and the unnamed man got into a verbal altercation, which then turned physical. Id. at ¶¶ 421, 424. i. 911 call Shortly before 7:30 p.m., a young woman (Arianna Jordan Bailey) was walking down James Street with her siblings. Id. at ¶¶ 1, 339. At that time, Ms. Bailey observed the physical altercation between Mr. Jones and the unnamed man. Id. at ¶ 340. Mr. Jones swung a stick at the unnamed man; that man grabbed the stick and proceeded to knock Mr. Jones to the ground. Id. The unnamed man then discarded the stick, smashed Mr. Jones’ cell phone on the ground, and took off running down the sidewalk. Dkt. No. 85-10 at 4. Mr. Jones was not moving and did not get up, and Plaintiff went to check on him. Id. at 5. Plaintiff asked Ms. Bailey to call 911. Id. At approximately 7:25 p.m., Ms. Bailey did so. Dkt. No. 77-55 at ¶ 1. The roughly three and a half minute recording of that 911 call reflects that Ms. Bailey informed the dispatcher that two people had been fighting; one was unconscious on the ground; and “a big type log looking thing” had been involved as a weapon. Id. at ¶¶ 2-4; see also Dkt. No. 77-5. When the dispatcher asked whether the assailant was still there, Ms. Bailey said “no” and explained that “he got up out of here.” Dkt. No. 77-55 at ¶ 5. When the dispatcher asked for a description of the assailant, Ms. Bailey said “he was African-American” and she had “just seen him running off.” Id. at ¶¶ 6-7. Ms. Bailey then switched to providing a description of Mr. Jones, whom she described as approximately 25 years old and 5’7”. Id. at ¶¶ 8-9. When the dispatcher clarified that he needed the description of the assailant, Ms. Bailey stated that he was “kind of bigger, he's gotta be like 6’3”, like medium build[.]” Id. at ¶ 10. When the dispatcher asked what the assailant was wearing, Ms. Bailey said “a green lookin’ sweatsuit thing” and then explained that “officers [a]re right here on site and I'm just gonna tell them what happened.” Id. at ¶¶ 10-11. Ms. Bailey can then be heard saying “he got in a fight with somebody, the other dude ran off but he got knocked out... he was, he was hit too in the whole altercation, you see that stick he was hit with that ... he was.” Id. at ¶ 12; see also Dkt. No. 77-16 at 0:05. ii. Police response Officers Russell, Cecile, and Tolone were the officers who initially responded to 941 James Street between approximately 7:27 and 7:28 p.m. Id. at ¶¶ 14-15. The 911 call notes indicated “2 PEOPLE FIGHTING – ONE PERSON NOW UNC[ONSCIOUS] ON THE GROUND – COMPL[AINANT] SAW A VERY LG STICK.” Dkt. No. 77-4 at 3; Dkt. No. 77-55 at ¶¶ 16-17. The 911 call notes also reported that the assailant was “ ‘a black male,’ 25-35 years old, six feet 3 inches, last seen wearing a green sweat[suit].” Dkt. No. 90-1 at ¶ 18. Soon after 7:30 p.m., four other officers arrived at the scene. See, e.g., Dkt. No. 77-4 at 1-2. After arriving, each of the Responding Officers activated and de-activated their body worn cameras (“BWC”) at different times. See Dkt. Nos. 77-15, 77-16, 77-17. Officer Russell's BWC footage initially shows her standing over Mr. Jones, next to Plaintiff (who is also on the ground) and Ms. Bailey, as Officer Cecile exits his police vehicle and walks over. Dkt. No. 77-16 at 0:00. Ms. Bailey, who was still on the phone with 911 at this time, is visible pointing down at Mr. Jones and saying “he got into a fight with somebody” and “the other dude run off.” Id.; Dkt. No. 77-55 at ¶ 21. Plaintiff says words to the same effect. Dkt. No. 77-16 at 0:00. *3 Officer Russell proceeded to ask Plaintiff, who had some blood on his lip, “what happened to you, why you bleeding?” Dkt. No. 77-55 at ¶ 29. Ms. Bailey explained “he was hit too” and “you see that stick he was hit with that.” Dkt. No. 77-55 at ¶ 12; Dkt. No. 77-16 at 0:05. Ms. Bailey subsequently slowly Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 21 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 walked down the sidewalk, as Officer Tolone walked past her to join Officers Russell and Cecile by Mr. Jones. Dkt. No. 77-16 at 0:15; Dkt. No. 77-55 at ¶ 32. Officer Tolone tended to Mr. Jones, who remained unconscious, with labored, gasping breaths and blood coming from the left side of his head. Dkt. No. 77-55 at ¶¶ 40-42. Plaintiff remained near the Responding Officers during this time. See generally Dkt. Nos. 77-16, 77-17. In response to Officer Cecile's question about who had hit Mr. Jones, Plaintiff said “some motherfucker.” Dkt. No. 77-16 at 1:10. In response to Officer Russell's question about what that person looked like, Plaintiff pointed down James Street and said it was a “black guy” whom he did not know. Dkt. No. 77-16 at 1:15. Following further questions, Plaintiff stated words to the effect of “y'all acting like we did something wrong.” Id. at 1:58. Officer Russell responded “no, no, we just trying to get that information, so that way we can put out a point of information regarding the guy who did it.” Id. at 2:03. Officer Russell again asked about Plaintiff's lip; Plaintiff responded that it was “a long story” and unrelated to Mr. Jones. Id. at 2:28. In response to Officer Russell's question, Plaintiff confirmed that he, Mr. Jones, and Ms. Goldych had been drinking with a fourth person. Id. at 2:54. Plaintiff also stated that the fourth person hit Mr. Jones, and that this person's name was “Pete.” Id. Officer Russell then confirmed this version of events with Ms. Goldych. Id. at 3:00. In response to further questioning from Officer Russell, Plaintiff provided his name, address, and birthdate. Id. at 3:47, 4:10. Plaintiff again stated words to the effect “y'all acting like we done something,” to which Officer Russell responded “no, we just need your info so that way you can help us, that's all.” Id. Soon after, Officer Russell again asked “were you two fighting each other,” to which Plaintiff responded “no.” Id. at 5:45. Approximately thirty seconds later, at 7:34 p.m., Officer Tolone directed Plaintiff to stand up and turn around, quickly patted him down, and informed Ms. Goldych “you're gonna get detained too dear.” Dkt. No. 77-17 at 4:34. Officer Tolone then told Plaintiff “you're being detained right now” and placed Plaintiff in handcuffs. Id. at 4:53. Officer Tolone walked Plaintiff over to a police vehicle and said “stand right here; don't move,” before unlocking the vehicle and directing Plaintiff into the backseat. Id. at 5:10. The Responding Officers proceeded to put up police tape around the scene. See, e.g., Dkt. No. 77-16 at 7:43. At approximately 7:38 p.m., Officer Russell remarked to Officers Tolone and Cecile that “we don't have anything to put out a point for, except for it was a black man.” Id. at 9:54. Officer Tolone responded, “it's the guy we have in the car, I can almost guarantee it,” Dkt. No. 77-17 at 8:27, and Officer Cecile agreed, saying “it's definitely him.” 5 Dkt. No. 77-15 at 1:41. At approximately 7:39 p.m., Officer Tolone asked various officers “have we started a canvas yet guys?” Dkt. No. 77-17 at 9:54. Officer Russell responded “yeah, we'll do that right now. I wish we would have got those people that were ...” and gestured down the sidewalk in the direction Ms. Bailey and her siblings had walked. Dkt. No. 77-16 at 11:27. At approximately 7:40 p.m., the Responding Officers spoke with two non-party officers who arrived after they did. See, e.g., Dkt. No. 77-17 at 10:14. One of the non-party officers asked “what's up with the guy with the busted lip,” to which Officer Tolone responded “yeah, I'm thinking that's gonna, like you said, that's gonna be our guy.” Id. *4 At approximately 7:41 p.m., Officer Cecile called the Criminal Investigations Division of the Syracuse Police Department (“CID”). Dkt. No. 77-15 at 4:55. Officer Cecile reported that “we've got possible suspects, I don't know, they're totally drunk, I don't know if someone wants to show up down here or not.” Id. at 5:35. During the course of this call, Officer Cecile asked Officer Russell for the name of “the guy, the suspect ... the guy that we got detained right now,” and then provided Plaintiff's name as “the possible suspect.” Id. at 8:19. At approximately 7:45 p.m., Officer Russell asked Officer Tolone, “did anyone contact those people back,” Dkt. No. 77-16 at 17:21, presumably again in reference to Ms. Bailey and her siblings, to which Officer Tolone responded that he tried but they did not want to meet, Dkt. No. 77-17 at 15:51. Officers Tolone and Russell then canvased the area for additional eyewitnesses, without success. See, e.g., Dkt. No. 77-55 at ¶ 76; Dkt. No. 77-17 at 18:30. At approximately 7:47 p.m., seemingly while on hold with CID, Officer Cecile stated to other officers on the scene that “I'm just going to call back the [911] caller, because they obviously saw it, and see if they want to talk and give us the, uh, a statement of what happened, once I'm done with CID.” Dkt. No. 77-15 at 10:57. After the call with CID resumed, Officer Cecile reiterated to the person with whom he was speaking that “he's totally, he's totally wasted, so how much that would do, I don't know” before saying words to the effect that he would “try and give the [911 caller] a call” and “see Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 22 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 if she witnessed who did it ... and maybe she'll give us a statement.” Id. at 12:39. At approximately 7:50 p.m., Officer Cecile again informed one of the other officers at the scene that he was going to contact the 911 caller “to see if they could give us a statement since they're all wasted, and then, you know, to [see] who hit him with it, because obviously they saw the whole thing.” Id. at 14:16. Officer Cecile then spoke with Ms. Bailey and asked if she could provide “an ID of who the suspect is, because right now all we've got is three people that are intoxicated, nobody's owning up to hit, hitting this, uh, gentlemen with a stick.” Id. at 14:50. Officer Cecile went on to ask “do you remember what the, uh, what the guy that hit him with a stick was wearing,” before repeating “a green shirt.” Id. at 16:01. Officer Cecile then clarified “the guy that got knocked out was, like, in his mid to late 20s, and it was, like, an older guy, like 35 to 40, that hit him?” Id. at 16:43. After the call ended, Officer Cecile shared with other officers on the scene that he had spoken with Ms. Bailey, and said that Mr. Bailey had said the assailant “was wearing a green shirt, he's got a green vest on,” to which another officer responded “yeah, it's this guy,” presumably in reference to Plaintiff. Id. at 17:20. Officer Cecile then tried to call Ms. Bailey again, and asked if she would come back to identify the person she had seen fighting with Mr. Jones. Id. at 18:30. Ms. Bailey did not agree to do so, in part because she had just “seen a fight, I don't want nobody looking for me or anything.” Id. at 18:45. While officers identified numerous video cameras that could contain footage of the incident, no such footage was retrieved. See, e.g., Dkt. No. 77-16 at 24:15; Dkt. No. 77-55 at ¶¶ 86, 134, 316, 383-84. Shortly before 8:00 p.m., Plaintiff was removed from the police vehicle to be photographed by a non-party officer. Dkt. No. 77-16 at 31:11; Dkt. No. 77-55 at ¶ 113. During this process, Officer Russell walked over and asked Plaintiff “you being good Robert” and “how'd that thing go the other day when you shit your pants?” 6 Id. at 31:22. Plaintiff appears to have mumbled that he “got drunk.” Id. at 31:29. The non- party officer photographing Plaintiff directed him to ball his hands up behind his back. Id. at 31:38. After leaning down to examine Plaintiff's hands and knuckles—presumably for blood or injuries—this officer did not photograph them. Id. *5 Plaintiff then exclaimed “I want to know what I did,” to which Officer Russell responded “we're trying to figure that out too.” Id. at 31:50. As the non-party officer placed Plaintiff back in the vehicle, Officer Russell asked Plaintiff “you nervous,” to which he responded “yeah.” Id. at 32:00. 3. Criminal Investigations Division Officers Tolone and Cecile transported Plaintiff and Ms. Goldych from 941 James Street to CID. Dkt. No. 77-6 at 5. Officer Tolone placed Plaintiff in a holding room, where he remained detained for several hours. Dkt. No. 77-8 at 3. At some point during the hours that Plaintiff was detained at CID, Detective Brimmer and a non-party detective appear to have traveled to 941 James Street to investigate the scene. See Dkt. Nos. 77-13, 77-19. Detective Brimmer's police report indicates that he also reviewed the 911 call notes at this time. Dkt. No. 77-19 at 2. The non-party detective assisting Detective Brimmer in canvassing the apartment building documented that one of the witnesses “stated that he did not know the men who drank in the parking lot, but stated that he observed three men and one woman drinking beer in the lot this afternoon.” Dkt. No. 77-13 at 2. Once back at CID, Detective Brimmer tried to speak with Ms. Goldych, but determined that she “appeared extremely intoxicated” and “was unable to speak due to apparent intoxication.” 7 Dkt. No. 77-19 at 2. Detective Brimmer's police report states that “[b]ased on the 911 caller[’]s description of the incident” and Plaintiff's presence at the crime scene, “he was being considered a likely suspect.” Id. at 3. Once Detective Brimmer returned to CID, he and Detective Beauchine moved Plaintiff into a small interrogation room at approximately 10:30 p.m. Dkt. No. 77-55 at ¶ 141; Dkt. No. 77-21 at 0:00. Plaintiff remained in this room until he was placed back in handcuffs at approximately 1:00 a.m. See generally Dkt. No. 77-21. Shortly after 10:30 p.m., Detective Brimmer read Plaintiff his Miranda rights. Dkt. No. 77-55 at ¶ 154. Plaintiff proceeded to speak with the Detectives. In response to Detective Brimmer's initial question about “[w]hat happened over there, man,” Plaintiff stated “[w]ell, what happened -- my nephew got into it with some guy. You know, and - - you know, they was fighting and stuff, you know. And I'm drunk. You know what, hey, here I am. That's what happened.” Dkt. No. 77-22 at 6:18-23. *6 The parties dispute the extent of Plaintiff's intoxication during the approximately two and half hours that he remained in the interrogation room. Sometime after approximately 1:00 a.m. on May 7, 2019, when Plaintiff's booking process began, his BAC was measured at 0.15 percent, or nearly twice the Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 23 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 legal limit to operate a motor vehicle. Dkt. No. 77-24; see also supra n.4. According to one of Defendants’ retained experts (Robert L. Weisman, D.O.), the physiological effects of such a BAC are that “[m]otor function, speech, and judgment are all severely affected at this height of blood alcohol. Staggering, and slurred speech, may be observed.” 8 Dkt. No. 77-52 at 10. Based on Dr. Weisman's review of numerous record materials and his examination of Plaintiff in June 2024, his expert psychiatric report contains several other findings that are relevant for purposes of summary judgment. See generally id. First, Dr. Weisman determined that—when sober—“Mr. Adams has deficits in his Miranda understanding, particularly regarding legally acceptable deceptive police practices as well as other specific aspects of remaining silent versus talking to the police.” Id. at 7, 9. Based on certain of Mr. Adams’ test scores—again, when sober—Dr. Weisman also concluded that Plaintiff's “basic understanding of Miranda” ranked in the eighteenth percentile of pretrial defendants. Id. at 8-9. Defendants take the position in the Motion that “Dr. Weisman's opinions are unrebutted.” Dkt. No. 77-56 at 20. Beyond the extent of Plaintiff's intoxication, the parties also dispute the voluntariness and significance of various statements Plaintiff made during his interrogation by the Detectives. In sum, the Detectives refused to accept Plaintiff's version of events, and instead told Plaintiff that video evidence, forensic evidence, and numerous witnesses all established that he had fought Mr. Jones; Plaintiff just needed to provide the details. See generally Dkt. No. 77-22. For example: Det. Beauchine: Okay. Hit the reset button. All right, okay. Det. Brimmer: Why don't we start at the beginning and tell the truth? Plaintiff: That's the truth. Det. Brimmer: No. Det. Beauchine: No, it's not. Listen, listen. It's not. We can do this over -- Plaintiff: Okay. Then you tell the truth, then. Okay? Det. Beauchine: I don't need to tell the truth. You're the one that needs to -- Plaintiff: Well, well, I'm telling you what I -- I'm telling you what as far as I know. Det. Brimmer: You were there. You were part of this. Det. Beauchine: Yes. Det. Brimmer: So you should -- Plaintiff: That's what I'm saying. Det. Brimmer: -- you should know, then. Plaintiff: Okay. That's what I'm saying. Okay, I'm trying to tell y'all what happened. You telling me I'm lying. Det. Beauchine: Well, let me put it to you like this. Okay? Plaintiff: Oh, man. That -- Det. Beauchine: We got several people saying that you, all right, got into an argument with this guy, and that you hit him with a stick. All right? Just hear me out. Hear me out. Okay? And that you hit him with a stick, and that you hit him so hard that he got knocked out and went to the ground. Plaintiff: No. Det. Beauchine: And so we're trying to verify whether or not you intentionally hit him -- *7 Plaintiff: No. No, no, no, no, no. Det. Beauchine: -- because you're a predatory person who wants to go out there and hurt people and do bad things to people, or if this is just a family argument that went awry and -- Plaintiff: No. Det. Beauchine: Okay. Det. Brimmer: He ended up falling and hitting his head or something. Det. Beauchine: Right. And that's exact -- Plaintiff: Oh, no. Det. Beauchine: -- that's (indiscernible). Plaintiff: No. Det. Beauchine: Okay. That's what we're facing, so did -- was this something where you are a predator? You intentionally attack people with things -- Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 24 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Plaintiff: No. Det. Beauchine: -- or whatever -- whatever you have available to you? Or is this just something that just -- Plaintiff: I don't hurt nobody. Det. Beauchine: -- listen, listen. Or is this something where you, a couple guys are having a couple drinks and some shit is said, and it's a family matter and shit went south, and it was more of an accident than anything else, or are you intentionally going around doing stuff like this? This is -- Plaintiff: No. Det. Beauchine: Okay. Which of the -- Plaintiff: No. Det. Beauchine: -- which of the two is it? Plaintiff: Nothing. Not one. Det. Beauchine: No, no. Which -- no, no, no. I'm -- Plaintiff: I just happened to be there. Det. Beauchine: You didn't just happen to be there. Okay? Plaintiff: I didn't even hit the guy. Det. Beauchine: Not with your hand. Plaintiff: I hit nobody. Det. Beauchine: You say not with your hands, because you're showing us your hands. We know that. All right? We know that. Det. Brimmer: Listen, it was a mistake, and you didn't mean for him to get hurt like that, that's a big difference than if you go out there trying to hurt people. Plaintiff: I ain't hit him. Det. Brimmer: It's a huge difference. Plaintiff: I didn't. Man, I swear to God I didn't. I didn't. Det. Brimmer: It's a huge difference. Plaintiff: I just happened to be there. Det. Brimmer: No. Plaintiff: I witnessed the thing. Det. Brimmer: That story is not going to fly. Det. Beauchine: Right. When people -- Det. Brimmer: It's not going to hold up. Det. Beauchine: -- when people see the video and they talk to someone -- .... They're going to see you in a certain fashion. And that's without you saying anything, right? So if you give your side of the story, and give your thoughts, and what was going through your head at the time, listen, it puts people in your perspective and in your shoes. Now, it doesn't -- and here's what I would say. It -- Plaintiff: I didn't do nothing. Det. Beauchine: Hold on, listen to me. It doesn't always make it right. Plaintiff: I'm telling you. I didn't do this. Det. Beauchine: People will understand if you put them in your shoes, and you can only do that by talking. Plaintiff: I don't give a -- Det. Beauchine: By telling us. Plaintiff: Well, I'm telling you. Det. Beauchine: Yeah. Plaintiff: I'm telling you how it happened. Okay? I didn't -- Det. Beauchine: Were you shooing him away with the stick, or did you mean to hurt him with the stick? Plaintiff: No. No. Det. Beauchine: What were you doing? *8 Plaintiff: Wait a minute. You put -- you put words -- Det. Beauchine: No, no, no. I'm asking you. It's a question. Det. Brimmer: We're trying to get to the -- Plaintiff: -- you're putting words in my mouth. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 25 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Det. Brimmer: -- we're trying to get to the bottom of this. Plaintiff: I'm telling you. Charles was fighting this guy. Okay? Next thing I know -- Det. Beauchine: We're past that. We're past that. Alright? We're past that. We know. Plaintiff: And -- Det. Beauchine: We're past that. All right? Listen, relax. Det. Brimmer: Just help us understand. Det. Beauchine: Help us understand what happened. All right? Between you and Charles. Det. Brimmer: I mean, you got a wound on your face. That could be a defensive wound, you know. It could -- Plaintiff: No. I ran into a tree being drunk. Det. Beauchine: Okay. So is it safe -- how often do you drink? Plaintiff: Hmm? Every day. Det. Beauchine: Okay. Could this be -- Plaintiff: All day. (laughs) Det. Beauchine: -- could this -- listen, could this be a mistake between you and Charles -- Plaintiff: No. Det. Beauchine: -- because you were intoxicated and -- Plaintiff: No, no, no no. Det. Beauchine: -- he was intoxicated? Plaintiff: No, no, no, no, no, no, no. No, no, no, no. Really, me and Charles ain't got no problem at all. Det. Beauchine: Well, you did tonight. Plaintiff: No. Hmm-mm. Det. Beauchine: You did. Plaintiff: No. No. No. Huh-uh. Det. Beauchine: You might not want to think that you might have had a problem, but -- Plaintiff: No, man. Det. Beauchine: -- you get -- you had a problem with him tonight. Plaintiff: No. Det. Beauchine: Or he had a problem with you, and you were defending yourself, tell us. Plaintiff: No, no, no, no. Det. Brimmer: Did he start talking about Vanessa and upset you? Plaintiff: No. Det. Brimmer: No? Det. Beauchine: You had a problem with him tonight. Plaintiff: Me and Vanessa had walked up. They happen to over sitting -- sitting down, drinking. And still we was drinking. Okay, next thing I know, they fighting. Really. Really, man. Period. Det. Beauchine: Was this an accident or did you mean to hurt him? Plaintiff: Man -- I didn't hurt him. Det. Beauchine: You meant to hurt him? Plaintiff: I never hurt him at all. Det. Beauchine: It was an accident? Plaintiff: Why do you -- why are you trying to put words in my mouth? Okay? Huh? Det. Brimmer: We're not trying to. We just want to get to the bottom of this. Plaintiff: Man, where -- well, where the bottom -- we're at the bottom of [sic]. I was telling you. Det. Brimmer: We're just going in circles. Plaintiff: I didn't do nothing. I was a witness. That don't -- this they got -- Det. Brimmer We're just going in circles here.... Id. at 51:2-59:19. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 26 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 During the interrogation, Plaintiff's cellular phone rang. The Detectives instructed Plaintiff not to answer the phone, to turn it off, and to place it on the table. Id. at 27:6-20. At approximately 11:14 p.m., just prior to the first break taken during the interrogation, Detective Brimmer said that he was going to take Plaintiff's phone outside the room. Id. at 60:24-25; see also Dkt. No. 77-21b at 13:50. Plaintiff responded, “[m]an, give me my phone,” to which Detective Brimmer replied “[n]o, it's going to sit out here.” Dkt. No. 77-22 at 61:1-3. During this break, Plaintiff is visible talking to himself and unsuccessfully trying to open the interrogation room's door, which appears to have been deadbolted from the outside. Dkt. No. 77-21b at 14:00-17:00. Plaintiff subsequently informed the Detectives that he was not currently working because he had a “dual diagnosis” and that his psychiatrist, counselor, and primary care doctor were all at the same local healthcare provider. Id. at 102:16-103:16; see also United States v. Moran, 778 F.3d 942, 951 (11th Cir. 2015) (“[D]ual diagnosis patients are those suffering from both substance abuse and acute mental disorders.”). *9 Plaintiff contends that he denied assaulting Mr. Jones nearly 200 times before the Detectives coerced him into providing a false confession around midnight. Dkt. No. 85-2 at ¶¶ 570-71. During the subsequent break, Plaintiff can be heard saying “I'm going to jail for something I didn't do,” 9 Dkt. No. 77-21c at 8:49, and further talking to himself, see, e.g., id. at 9:10, 11:23. Defendants contend that Plaintiff's eventual confession was not coerced and not false. Dkt. No. 77-56 at 9, 25. Presumably to support this position, Defendants requested that Dr. Weisman opine on Plaintiff's capacity during the May 2019 interrogation. Dkt. No. 77-52 at 11, 12. As relevant here, Defendants requested that Dr. Weisman determine whether Plaintiff had the “proper requisite intellectual capacity and base intelligence level” and the “proper requisite psychological state and mental health capacity” to have: .... (c) understood the significance and context of the questions being asked regarding the assault of Charles Jones; ... .... (f) understood [the] significance and context of his answers to those questions with respect to the assault of Charles Jones; .... (g) observed the events for which he was being questioned, illustrated the ability to recall those same observations, and provided answers based upon those observations and recollections (even if, under certain circumstances, Plaintiff was deceptive in his response); .... (h) [had] the ability (or exhibited the ability) to communicate his answers truthfully, effectively, clearly and coherently; ..... and (i) provided the answers of his own accord. Id. at 11-12, 12-13. In response to every one of these items, Dr. Weisman concluded: Initially, yes, but towards the latter part of the ~1.5-hour interview, Mr. Adams being under the combination of duress, fatigue, limitations of his legal knowledge, and some level of alcohol intoxication, became emotionally and cognitively distressed, resigned, and compelled to offer the narrative of the crime being demanded of him. Id. at 11-12, 12-13. 4. Police Reports a. Detective Brimmer According to the arrest report prepared by Detective Brimmer, he and Detective Beauchine arrested Plaintiff at 12:00 a.m. on May 7, 2019. Dkt. No. 77-23. The arrest report listed Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described his apparent condition as “Appeared Normal.” Id. The arrest report included criminal charges against Plaintiff. Id. Detective Brimmer also prepared a police report regarding events on May 6 and 7, 2019, including his telephone conversation with Ms. Bailey. Dkt. No. 77-19. The parties dispute what was said during this conversation on May 7, 2019. According to Detective Brimmer's report, Ms. Bailey corroborated certain key details of Plaintiff's confession during this conversation, including that the day before “she observed 2 unknown black males yelling at each other[;]” Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 27 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 “one male punched the other, and the one that got punched was hitting the other with a stick[;]” and “one of the subjects went down to the ground unresponsive and the other male was saying something about his nephew[.]” Id. at 3. Detective Brimmer also wrote that Ms. Bailey stated that “she called 911 but walked away prior to EMS and Police arrival.” Id. *10 According to a sworn affidavit provided by Ms. Bailey, she never said many of the statements Detective Brimmer attributed to her, including that she “never used the word ‘punch’ because I did not see either of the two individuals punching[;]” “never told Detective Brimmer that the man helping the victim was the who hit the victim. The person who hit the victim ran away. The victim was unresponsive and the older man told me the victim was his nephew. The older man asked me to call 911[;]” “never told Detective Brimmer that the older man was involved in this fight[;]” and “[t]he police arrived while I was on the phone with 911 and I spoke to a lady officer. I did not tell Detective Brimmer that I left before the police arrived.” Dkt. No. 85-10 at ¶¶ 6-9. Ms. Bailey further stated that Detective Brimmer's report “contains false statements. I never told him that I witnessed anyone punching. I never told him that the older man who called the victim his nephew was involved in the fight. I never told him that I left before the police arrived.” Id. at ¶ 10. b. Officer Cecile Officer Cecile's police report, dated May 6, 2019, listed Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described his apparent condition as “Impaired Alcohol.” Dkt. No. 77-6 at 2. In the narrative portion of his report, Officer Cecile stated that “while in route, dispatch notes read that there was a fight in progress between two people with one person [ ] unconscious on the ground, the other person was wearing a green sweat suit and there is a very large stick involved.” Id. at 5. With respect to Plaintiff's detention, Officer Cecile wrote “[b]ased on the notes from dispatch and lack of cooperation for Goldych and Adams, both were detained at this time.” Id. As for his call with Ms. Bailey, Officer Cecile wrote: Bailey stated that she witnessed the fight between the victim and suspect ... Bailey stated that the suspect was an old black male wearing a green jump suit. Bailey stated that she saw the male in the jump suit dodge a punch from the victim and then swing the large stick at [t]he victim's head which connected and knocked him to the ground. Id. As for Plaintiff's appearance, Officer Cecile described him as “an older black male in a grayish/teal puffy jacket and green pants[.]” Id. c. Officer Tolone Officer Tolone's police report, dated May 6, 2019, listed Plaintiff as 55 years old, provided no height or weight, and described his apparent condition as “Normal.” Dkt. No. 77-8 at 4. In the narrative portion of his report, Officer Tolone wrote that “[p]rior to our arrival dispatch advised us that our caller, Jordan Bailey who refused to speak with us regarding this incident, stated to the call taker that she saw two males fighting, one wearing a green jump suit, and then saw someone get struck with a stick and then saw the man on the ground.” Id. at 2. With respect to Plaintiff's detention, Officer Tolone wrote that “Adams was detained at this time for suspicion that he was in deed [sic] the suspect in this incident however, when we initially arrived on scene Adams stated there was another male that started a fight with Jones.” Id. As for Plaintiff's appearance, Officer Tolone wrote that “Adams, at the time contact was made, was wearing green pants and a grey / green vest.” Id. d. Other Police Reports Officer Russell prepared a short report, also dated May 6, 2019, with a brief narrative that does not mention Ms. Bailey or Plaintiff, or Officer Russell's interactions with either of them. Dkt. No. 77-7 at 2. Following Plaintiff's interrogation at CID, a non-party officer photographed Plaintiff in the interrogation room and collected his clothing early in the morning of May 7, 2019. Dkt. No. 77-10. This officer catalogued Plaintiff's clothing as consisting of a “Black winter coat[,]” “Grey pants with belt[,]” “Blue/green/white striped shirt[,]” “Blue Puma sneakers[,]” and a “Baseball Hat (Grey, green Bird Game logo)[.]” Id. at 3. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 28 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 5. Criminal Prosecution In the weeks after the events of May 6, 2019, Officer Cecile, Detective Brimmer, and Ms. Bailey testified before a grand jury in Onondaga County. Dkt. No. 77-25. The grand jury subsequently indicted Plaintiff 10 for (i) assault in the first degree in violation of N.Y. Penal Law § 120.10(1); (ii) assault in the second degree in violation of N.Y. Penal Law § 120.05(2); and (iii) criminal possession of a weapon in the third degree in violation of N.Y. Penal Law § 265.02(1). Dkt. No. 77-26 at 1. Plaintiff remained detained in jail pending trial. Dkt. No. 77-55 at ¶¶ 309, 382. *11 Mr. Jones died in the hospital on August 18, 2019. Dkt. No. 85-15. A medical examiner ruled Mr. Jones’ death a homicide as a result of complications from being struck in the head “with a large stick containing imbedded nails.” Id. at 1, 2. After Mr. Jones’ death, it appears that the criminal charges against Plaintiff could have been increased from assault to manslaughter. 11 Dkt. No. 77-55 at ¶¶ 372-74. On August 19 and 20, 2019, ADA Michael Manfredi offered Plaintiff, through his court-appointed counsel, “a plea to Manslaughter in the first with a sentence of 12 years Determinate.” Dkt. No. 77-28 at 2, 1. On October 8, 2019, ADA Manfredi reiterated to Plaintiff's court-appointed counsel that the “[o]ffer remains Man 1 st with 12 years determinate.” Id. at 1. On January 9, 2020, Plaintiff's court-appointed counsel made a bail application on behalf on Plaintiff, in part on the basis that: We have had an opportunity to review much of the evidence against [Plaintiff] and the defense believes there is significant evidence that the People have the wrong man in jail. Despite what the People have presented as a “confession”, the defense believes that the evidence will show that it is a psychologically coerced false confession. There is no indication there are any witnesses identifying him at the scene. In fact the opposite. The People's case is weak. Dkt. No. 77-39 at ¶ 22. Soon after, an investigator from the DA's Office contacted Ms. Bailey. Dkt. No. 77-34 at 1. On January 16, 2020, Ms. Bailey provided a voluntary affidavit that stated in relevant part: [Investigator Tim Galanaugh] asked if I would be willing to come down to his office and meet with Mr. Coolican, the prosecutor, and see if I would watch some video footage that they had. He also made me aware that the police had made an arrest of an individual the day of the [May 6, 2019] incident. I told him that I would be willing to come down and speak to them, and help in any way because I was unaware that the victim had died. Back in May, when everything had happened, I initially called 911 for a man that was trying to assist the victim. That man that I am speaking about was African American and told me that the victim was his nephew. I stayed on the scene with my siblings until the police officers arrived. I gave information to the 911 person telling them that the suspect that was responsible had run down James Street towards downtown. I told the dispatch person that the suspect was African American and over 6 foot tall and was wearing dark green. As the officers showed up they started talking to the older guy that was kneeling next to his nephew. They wanted him to step back from the victim. I told the female officer that he had nothing to do with it. There was a[ ]lot going on at the time and I didn't want to get more involved so I walked away with my siblings. At the time, I felt that I had cooperated enough by reporting it and I didn't want to involve myself or my siblings in what appeared to me at the time to be a fight between two guys that ended with one being knocked out with a stick. When the police officers contacted me 30 minutes or so later to see if I would come back to the scene to try to identify someone, I didn't want to get involved. I was scared that it would jeopardize my safety and my siblings[’] safety so I told the police officers that I didn't want to do anymore than what I had done to help already. *12 .... This is what I remember about the incident today: That I had been leaving Bryant and Stratton on James Street and observed two African American men that appeared to be about to fight. Me and my siblings w[ ]ere almost walking right through where this was occurring. The victim had a long branch in his hand and starts to run up on the suspect. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 29 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 As the victim tries to swing on the suspect, the suspect grabs the stick and snatches the stick from the victim. The suspect then swings the stick at the victim with one hand towards his upper body. I couldn't tell where it connected or if he followed up with an elbow. All I seen is the victim stumble and drop to the ground. Suspect then tosses the stick. The suspect then goes to the pa[ ]nts pocket of the victim, takes a cell phone out and smashes it onto the pavement. Then the suspect takes off running down the sidewalk on James Street towards downtown. I didn't see where the suspect had run to because I then focused my attention on the victim on the ground. That's the same time when I noticed the older man get off the stones by the Chestnut Apartments sign and walk over to his nephew to check on him. I remember telling him that he should help get him up off the ground. The victim wasn't moving and looked like he had been knocked out, but after a few moments of looking at him more closely I told the older man that he, the victim, didn't look so good. That[’]s when the uncle asked me to call 911, so I did. I stayed with the uncle until the police arrived, but like I said, I walked off shortly after with my siblings because we didn't want to get more involved. Today, at around 1045 AM, I met Mr. Coolican and Investigator Galanaugh at the D.A.’s Office. They had me watch some video footage from one of the officer's body cameras when they showed up at the scene. In the video I saw the victim on the ground and the African American man, who told me the victim was his nephew, kneeling next to him wearing a gray baseball hat. You can hear me talking in the video telling the female officer that the victim was hit with the stick. I showed Mr. Coolican w[here] the victim's cell phone can be seen in the video laying on the pavement, smashed. I was told by Mr. Coolican and Investigator Galanaugh that the person that was arrested in this incident, was the man that told me that the victim was his nephew. The person that the police arrested was not the suspect that I saw fighting with the victim, and causing the victim to be hurt with the stick. I saw that suspect run from the scene after smashing the victim's phone on the ground. Id. at 1-2; see also Dkt. No. 77-55 at ¶¶ 380-81. Plaintiff was not released from jail until February 12, 2020, more than nine months after his arrest on May 6, 2019. Dkt. No. 77-55 at ¶ 382. The charges against Plaintiff were not dismissed until September 15, 2020. Id. at ¶ 404. a. Plaintiff's Capacity On February 13, 2020, the judge presiding over Plaintiff's criminal prosecution ordered Plaintiff's capacity evaluated pursuant to New York Criminal Procedure Law § 730. Dkt. No. 77-35 at 1 (stating that “the Court being of the opinion that the defendant may be an incapacitated person” an examination is ordered “to determine whether said defendant, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense”). *13 Two physicians subsequently examined Plaintiff and issued their reports on August 27, 2020. Dkt. No. 77-55 at ¶¶ 391-92, 395. As relevant here, the first physician concluded that “although suffering from Alcohol Use Disorder,” Plaintiff “at the time of this evaluation, did not as a result of mental disease or defect lack the capacity to understand the proceedings against him or to assist in his own defense.” Id. at ¶ 394. The second physician similarly concluded that Plaintiff “is not currently suffering from a mental illness which would cause him to lack the capacity to understand the proceedings against him or to assist his counsel in his own defense” and that Plaintiff, “at the time of this evaluation, did not as a result of mental disease o[r] defect lack the capacity to understand the proceedings against him or to assist in his own defense.” Id. at ¶ 398. 6. Additional Investigation by CID On January 29, 2020, prior to Plaintiff's release from jail, two non-party detectives returned to 941 James Street to obtain video footage of the incident that had occurred nearly nine months earlier. Id. at ¶ 383. Their investigation obtained no such footage, id. at ¶ 384, and determined that none of a dozen nearby businesses retained such footage for longer than three months, Dkt. No. 77-31 at 2. The two detectives also made efforts at this time to locate individuals previously mentioned by Plaintiff and Ms. Goldych, including “the ‘Pete’ mentioned in BWC [footage from the Responding Officers], but without success.” Dkt. No. 77-55 at ¶¶ 385-86. Forensic evidence recovered from items collected at 941 James Street—apparently including multiple drink containers as well as Mr. Jones’ smashed phone—was linked to an individual whose first name is Pierre. Dkt. No. 85-1 at ¶ 56; Dkt. No. 85-4; Dkt. No. 85-14 at 9, 28; Dkt. No. 85-11 at 28. A Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 30 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 non-party detective testified during his deposition that “[w]e do have forensic evidence indicating that he may have been present at the time of the incident or in the hours preceding it.” Dkt. No. 77-50 at 123:24-124:9. A September 2020 internal memorandum from the Syracuse Police Department (“Memo”) states that such evidence “strongly suggests, at a minimum, Pierre [ ] was onscene at some point that day [May 6, 2019], and drinking with the group” and notes that Pierre “is listed as much bigger than Adams ([ ] - 6’00”, 220 lbs.), and closer resembles that of the suspect description initially provided to 911 by Jordan Bailey.” Dkt. No. 85-11 at 28. When provided with the opportunity to speak with CID, Pierre apparently declined to do so. Id. Another internal document from the Syracuse Police Department indicates that while Pierre had been identified as “a person of interest,” “there is no proof beyond a reasonable doubt suggesting [Pierre] is the primary suspect at this time.” Id. at 7-8. The Memo notes that the investigation of Mr. Jones’ death “will now be considered ‘unsolved’.” Id. at 30. C. Prior Proceedings 1. Citizen Review Board In April 2021, Plaintiff filed a complaint with Defendant City's Citizen Review Board in connection with his arrest and interrogation. Dkt. No. 85-11 at 14-21. The Syracuse Police Department's Internal Affairs Division assigned a sergeant to investigate Plaintiff's complaint and prepare a case report. Id. at 1-13 (“Report”). The sergeant's investigation included an interview with a deputy police chief. Id. at 8-9. The sergeant included the following information from that conversation in the Report: I addressed the complaints made by Mr. Adams of the false arrest as well as being interviewed while intoxicated. Deputy Chief [ ] was able to explain there is case law which supports interviewing a person who is intoxicated. The only limitation to this is if the person being interviewed is intoxicated to the point of being in a manic state. Deputy Chief [ ] also informed me it is a matter of training that detectives are trained on the fact that interviewing an intoxicated person is lawful, unless in this manic state.... Therefore, the actions by [the D]etectives during that interview were lawful and proper. *14 Id. at 9. The Report ultimately concluded that: Mr. Adams[’] claim that he was arrested and charge[d] for a crime he did not commit is true. However, after reviewing this case and based on the evidence shown, there is no evidence to show wrong doing on behalf of any of the Syracuse Police Officers involved. The interview conducted by Det. Beauchine and then Det. Brimmer was lawful and proper. There was no violation of any rules and regulations by Det. Beauchine or Det. Sgt. Brimmer, or any officer. The basis for Mr. Adams being charged with this crime was due to his own admission and the lack of cooperation from the original eye witness. Therefore, this complaint is unsubstantiated. Id. at 12. In the course of reaching these conclusions, the sergeant also briefly spoke with the Detectives. Id. at 11-12. According to Detective Brimmer, “Mr. Adams did not appear excessively intoxicated during the interview” that began on May 6, 2019. Id. at 11. Detective Beauchine similarly “stated [that] he did not feel Mr. Adams was excessively intoxicated” during the interview. Id. at 12. Detective Brimmer also shared that “Mr. Adams would not have been under arrest without the confession.” Id. at 11. The sergeant, the sergeant's supervisor, a bureau chief, the first deputy chief, and the chief of police are all listed as March 2022 signatories to the Report. Id. at 13. 2. New York Court of Claims Plaintiff previously filed a notice of claim in the New York Court of Claims. Dkt. No. 63-1. Defendants examined Plaintiff on January 22, 2021. Dkt. No. 77-43. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 31 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 D. Procedural History Plaintiff commenced this action in June 2021. Dkt. No. 1. Defendants moved to dismiss the Complaint in July 2021. Dkt. No. 7. Plaintiff voluntarily dismissed his claims against one individual defendant and otherwise opposed the motion. Dkt. Nos. 9, 16. In March 2022, United States Senior District Judge Lawrence E. Kahn partially granted and partially denied Defendants’ motion to dismiss. Dkt. No. 19. Judge Kahn observed that “[i]f the facts alleged by Plaintiff are true, Plaintiff's detainment amounts to a substantial miscarriage of justice.” Id. at 1. Judge Kahn dismissed Plaintiff's second, sixth, seventh, and ninth claims, as well as another individual defendant, and denied the balance of Defendants’ motion. Id. at 1-18. Discovery proceeded, with the parties requesting and receiving numerous extensions. See generally Docket Sheet. In January 2024, United States Magistrate Judge Mitchell J. Katz denied Plaintiff's motion to amend the Complaint to add two individual defendants, but granted Plaintiff's request to dismiss his claims against three other individual defendants. Dkt. No. 64. The Motion was fully submitted in April 2025. Dkt. Nos. 77, 85, 90. E. Plaintiff's Claims Plaintiff's remaining claims, 12 see Dkt. No. 19, are as follows: pursuant to Section 1983, (i) false arrest against the Individual Defendants, Dkt. No. 1 at ¶¶ 41-47; (ii) malicious prosecution against Defendants, id. at ¶¶ 63-71; (iii) fabricated evidence against Defendants, id. at ¶¶ 72-80; (iv) a Monell claim against Defendant City, id. at ¶¶ 52-62; and, pursuant to New York law, (v) false arrest against Defendants, id. at ¶¶ 91-93; and (vi) negligent supervision, etc., against Defendants, id. at ¶¶ 97-100. III. STANDARD OF REVIEW *15 Summary judgment is properly granted only if, upon reviewing the evidence in the light most favorable to the nonmovant, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). A court first determines “whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one- sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “When analyzing a summary judgment motion, the court ‘cannot try issues of fact; it can only determine whether there are issues to be tried.’ ” Galeotti v. Cianbro Corp., No. 12-cv-00900, 2013 WL 3207312, at *4 (N.D.N.Y. June 24, 2013) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36-37 (2d Cir. 1994)). Defendant, in seeking summary judgment, “bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995) (citation omitted). To determine whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); accord Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). A “material” fact is one that would “affect the outcome of the suit under the governing law,” and a dispute about a genuine issue of material fact occurs if the evidence is such that “a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court should “grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative.” Schwimmer v. Kaladjian, 988 F. Supp. 631, 638 (S.D.N.Y. 1997) (citing, inter alia, Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505). IV. DISCUSSION The Court addresses the parties’ specific arguments with respect to the remaining claims below. Given the disputed factual record as to many aspects of Plaintiff's claims, the Court finds it appropriate to reiterate the Second Circuit's guidance in another case involving Section 1983 claims for false arrest, malicious prosecution, fabricated evidence, and related Monell liability: We write because the district court improperly granted summary judgment to defendants. The record before us reveals evidence from Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 32 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 which a jury could find that certain of the individual police officers prepared a false report and initiated a prosecution of plaintiff[ ] predicated on this manufactured evidence. We also write to emphasize a larger issue raised by this case. Plaintiff[ ] allege[s] that the defendant police officers lied and fabricated evidence. While we do not know whether the accusations can be sustained, we do know that such accusations must be carefully reviewed. Lying is wrong, and if the police lie while acting in their official capacity, they also violate the public trust. Courts must ensure that such serious accusations receive appropriate scrutiny lest our Court appears to endorse such official misconduct, which would weaken the public's respect for the administration of justice. In making these remarks, we emphasize that we have reached no conclusions about whether the plaintiff[’s] accusations can be substantiated. It will be for a jury to determine at trial whether plaintiff[ ] ha[s] proved [his] very serious charges. *16 Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 125 (2d Cir. 1997). While the Court addresses the parties’ significant factual disputes in detail below, it similarly reaches no conclusions at this stage regarding whether Plaintiff will ultimately be able to prove his surviving claims. A. False Arrest under Section 1983 and New York law “A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures[,] is substantially the same as a claim for false arrest under New York law.” Alexander v. City of Syracuse, 132 F.4th 129, 156 (2d Cir. 2025) (alteration in original) (quoting Kee v. City of New York, 12 F.4th 150, 158 (2d Cir. 2021)). And “[u]nder New York law, to prevail on a claim for false arrest, a plaintiff must show that (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.” Id. (quoting Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir. 2021)). “Under both federal and New York state law, probable cause is a complete defense to a false arrest claim.” Carruthers v. Colton, 153 F.4th 169, 179 (2d Cir. 2025) (quoting Triolo v. Nassau Cnty., 24 F.4th 98, 106 (2d Cir. 2022)); see also Grice v. McVeigh, 873 F.3d 162, 166 (2d Cir. 2017) (“[Plaintiff]’s unlawful arrest claim fails because his handcuffing was an ‘investigatory detention’ (otherwise known as a ‘Terry stop’) that never ripened into an arrest and was supported by reasonable suspicion.”). “Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.” United States v. Hawkins, 37 F.4th 854, 858 (2d Cir. 2022) (quoting United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990)). As detailed earlier, after several minutes of questioning by numerous officers, Plaintiff was handcuffed and put into the back of a police vehicle in front of 941 James Street at approximately 7:34 p.m. on May 6, 2019. See supra Section II.B.2. Plaintiff was eventually transported to CID shortly after 8:00 p.m., where he remained detained until his custodial interrogation began at approximately 10:30 p.m. See supra Section II.B.3. Plaintiff was held in the interrogation room until approximately 1:00 a.m. on May 7, 2019, when he was placed back in handcuffs and his booking process began. Id. Plaintiff was then detained for more than nine months, until his eventual release on February 12, 2020. See supra Section II.B.5. Plaintiff's opposition to the Motion does not challenge his detention and questioning by officers prior to being handcuffed at approximately 7:34 p.m. 13 See, e.g., Dkt. No. 85 at 10; see also Dkt. No. 77-56 at 12-13. And Defendants only seek summary judgment on the portions of Plaintiff's false arrest claims that relate to his “pre-confession detainment” and “post-confession arrest,” not his subsequent months-long detention. Compare Dkt. No. 77-56 at 12, with Dkt. No. 1 at ¶¶ 43, 92-93; see also Dkt. No. 7-2 at 13-14; Dkt. No. 19 at 9-10. The Court thus focuses its analysis on Plaintiff's detention at 941 James Street on May 6, 2019, his formal arrest at CID on May 7, 2019, and the five or so hours that he remained detained in between. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 33 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 1. Plaintiff's Detention at 941 James Street *17 Defendants first contend that Plaintiff's false arrest claims should fail because—although Plaintiff was handcuffed, placed in the back of a police vehicle, transported from his home to a police station approximately 30 minutes later, and detained for hours—he was not actually under arrest during this time. Instead, Defendants argue, the approximately five-hour seizure of Plaintiff prior to his formal arrest merely constituted an investigative stop and only required reasonable suspicion. Dkt. No. 77-56 at 13, 16 (stating that “only reasonable suspicion was required” to detain Plaintiff at 941 Adams Street and Defendants “had ample reasonable suspicion to detain Plaintiff”); id. at 17, 18 (stating that “Plaintiff's pre-confession detainment at CID was merely a continuation of his on-scene detainment” and “the detainment was supported by reasonable suspicion”); Dkt. No. 90 at 6 (stating that, as to Plaintiff's interrogation, “Defendants maintain that Plaintiff was being detained requiring only reasonable suspicion”). This is a particularly weak argument given applicable law and the facts of this case. 14 See, e.g., United States v. Lefebvre, 117 F.4th 471, 475 (2d Cir. 2024) (“There were several factors present during th[is] seizure that, in many situations, this Court would consider to be evidence that a seizure had indeed become a de facto arrest. [Plaintiff]’s ‘freedom of movement was restrained’ and ‘handcuffs were used.’ ... [T]he encounter lasted roughly 20 minutes.... [Plaintiff]’s transportation to a police station, instead of some of other reasonable third location, would in many situations clearly establish that the seizure had ripened into a de facto arrest.”) (citations omitted) (collecting cases). The Court agrees with Plaintiff, Dkt. No. 85 at 8-9, that Defendants’ maximalist position regarding their multi-hour detention of Plaintiff is unsupported by Fourth Amendment jurisprudence, see, e.g., United States v. Candelario, 486 F. App'x 907, 908 (2d Cir. 2012) (“It is well established that ‘a police officer may briefly detain an individual for questioning if the officer has a reasonable suspicion that the individual is, has been, or is about to be engaged in criminal activity.’ ”) (emphasis added) (quoting United States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008)). See also Grice, 873 F.3d at 167 (“In general, to determine whether a Terry stop is so intrusive as to become an arrest, we look to: [‘]the amount of force used by police, the need for such force, and the extent to which the individual's freedom of movement was restrained, and in particular such factors as the number of agents involved, whether the target of the stop was suspected of being armed, the duration of the stop, and the physical treatment of the suspect, including whether or not handcuffs were used.[’]”) (quoting United States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993)). By approximately 7:34 p.m., Plaintiff had already been questioned for several minutes by multiple officers at the scene. See supra Section II.B.2.a.ii. Plaintiff had informed officers that he did not assault Mr. Jones (which Ms. Bailey had also said); that the person who assaulted Mr. Jones had run down James Street (which Ms. Bailey had said as well); that the assailant was a black man named “Pete” (which Ms. Goldych had also said); and that Plaintiff lived in one of the apartments at 941 James Street. Id. Defendants acknowledge that “the entire interaction was peaceful” prior to Plaintiff's handcuffing, Dkt. No. 77-56 at 15, and Officer Tolone testified that he did not feel his safety was at issue, Dkt. No. 90-1 at ¶ 510. Throughout this time, Plaintiff did not interfere with the investigation, continued answering questions from officers, and made no effort to leave the scene. See supra Section II.B.2.a.ii. Indeed, BWC footage shows Plaintiff sitting down and speaking with Officer Russell seconds before Officer Tolone directed him to stand up and turn around. Dkt. No. 77-17 at 4:34. Officer Tolone then handcuffed Plaintiff and informed Plaintiff that he was being detained. Id. Officer Tolone proceeded to place Plaintiff into the back of one of the multiple police vehicles parked in front of Plaintiff's home. Id. at 5:08. *18 Given this factual record, a reasonable juror could conclude that Plaintiff was arrested at this time. Grice, 873 F.3d at 167. As the authority upon which Defendants rely, Dkt. No. 77-56 at 15, makes clear, “[h]andcuffing is ordinarily not incident to a Terry stop, and tends to show that a stop has ripened into an arrest,” Grice, 873 F.3d at 167. See also United States v. Newton, 369 F.3d 659, 676 (2d Cir. 2004) (“Handcuffs are generally recognized as a hallmark of a formal arrest.”) (collecting cases). Moreover, Defendants have failed to demonstrate the applicability of any of the “certain unusual circumstances” when “handcuffing a suspect to investigate a reasonable suspicion does not transform a Terry stop into an arrest.” Grice, 873 F.3d at 168 (collecting cases); see also Dkt. No. 77-56 at 15-16. As just discussed, nothing in the record indicates concern about officer safety. The balance of Defendants’ cursory arguments about why Plaintiff purportedly needed to be handcuffed and placed in the back of a police vehicle are unpersuasive. United States v. Fiseku, 915 F.3d 863, 870 (2d Cir. 2018) (“[T]o satisfy the reasonableness standard, officers conducting stops on less than probable cause must employ the least intrusive means Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 34 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 reasonably available to effect their legitimate investigative purposes.”) (quoting Newton, 369 F.3d at 674). 2. Probable Cause Defendants next argue that, regardless of when Plaintiff was arrested, they had probable cause to arrest him for assault 15 within moments of arriving at 941 James Street. Dkt. No. 77-56 at 12-18. This argument is also unconvincing, again given applicable law and the facts of this case. “To assess probable cause, a court considers only the facts ‘available to the officer at the time of the arrest and immediately before it.’ ” Ashley, 992 F.3d at 136 (quoting Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)). The parties largely agree on the basic information known to the Responding Officers at the time Plaintiff was handcuffed: 16 the 911 call notes, Plaintiff's presence at the scene, and some blood on Plaintiff's lip. Dkt. No. 77-56 at 13-14; Dkt. No. 85 at 14-15. The parties dispute the factual contours of much of that information, however, as well as its legal significance. Defendants’ arguments regarding probable cause miss the forest for the trees. When evaluating probable cause, the Second Circuit has “consistently held, as relevant here, that ‘an officer may not disregard plainly exculpatory evidence.’ ” Washington v. Napolitano, 29 F.4th 93, 107 (2d Cir. 2022) (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)). Defendants were repeatedly informed that the black man who assaulted Mr. Jones was no longer present at the scene. See supra Section II.B.2.a. Ms. Bailey told the 911 dispatcher that this third man had assaulted the victim and had run off, but that the victim and his uncle were still there. Id. The 911 call notes indicated that the suspect was “last seen wearing” a green sweatsuit. Dkt. No. 90-1 at ¶ 18. Ms. Bailey again told Officer Russell—as Officer Russell stood next to Plaintiff, possibly within earshot of Officer Cecile as he approached—that the assailant who hit Mr. Jones was someone other than Plaintiff and had run off. See supra Section II.B.2.a. Plaintiff separately told Responding Officers that the assailant had run off, that his name was Pete, and that he was a black man. Id. Ms. Goldych also indicated that the man's name was Pete. Id. Defendants simply ignore the existence of this third man, identified by multiple eyewitnesses at the scene (and subsequently confirmed by forensic evidence). See Dkt. No. 77-56 at 12-18; see also Dkt. No. 77-50 at 123:24-124:9; Dkt. No. 85-11 at 28. *19 Instead, Defendants argue that Plaintiff “was the only individual on scene that matched Ms. Bailey's description.” Dkt. No. 77-56 at 14. But a reasonable juror could readily conclude that Plaintiff did not match Ms. Bailey's description. As the parties agree, the 911 call notes described the assailant as 25 to 35 years old, 6’3” tall, with a “med[ium] build,” and “black male.” Dkt. No. 90-1 at ¶ 18; Dkt. No. 77-4 at 3. At the time, Plaintiff was 55 years old, 5’7” tall, and weighed approximately 160 pounds. See, e.g., Dkt. No. 90-1 at ¶ 515. Defendants’ own observations and descriptions of Plaintiff are consistent with these attributes. See, e.g., Dkt. No. 77-6 at 2 (Officer Cecile's police report listing Plaintiff's age as 55, height as 5’7,” and weight as 160); Dkt. No. 77-23 (Detective Brimmer's arrest report listing the same); Dkt. No. 77-8 at 4 (Officer Tolone's police report listing Plaintiff's age as 55); Dkt. No. 77-16 at 4:11 (Officer Russell's BWC footage showing her asking Plaintiff for his birthdate, prior to his arrest, and being told the date in 1964), 18:26 (Officer Russell's BWC footage showing her providing Plaintiff's birthdate to another officer); Dkt. No. 77-25 at 7:5-11 (Officer Cecile testifying that he thought Plaintiff was in his “[l]ate 50s or early 60s” “just going by looking at [him]”). The only portion of Plaintiff's physical attributes that “matched” Ms. Bailey's description of the suspect is that Plaintiff was also “a black male.” Dkt. No. 90-1 at ¶ 18. A reasonable juror could conclude that this fails to provide reasonable suspicion to briefly detain Plaintiff, let alone probable cause to arrest him. See, e.g., United States v. Walker, 965 F.3d 180, 186 (2d Cir. 2020) (“As we have repeatedly said, ‘race, when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop.’ ”) (quoting United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir. 2005)); Zuniga-Perez v. Sessions, 897 F.3d 114, 124 (2d Cir. 2018) (“As the Supreme Court has made abundantly clear, stopping and interrogating people based solely on race or ethnicity violates the Fourth Amendment.”) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 885-86, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)); Dancy v. McGinley, 843 F.3d 93, 109 (2d Cir. 2016) (“[A] description of race and gender alone will rarely provide reasonable suspicion justifying a police search or seizure.”) (quoting Brown v. City of Oneonta, 221 F.3d 329, 334 (2d Cir. 2000)); Jenkins, 478 F.3d at 90 (“It has long been established, however, that when that description could have applied to any number of persons and does not single out the person arrested, probable cause does not exist.”) (collecting cases); see also supra n.13. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 35 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 Defendants also claim that Plaintiff's clothing “matched” the description Ms. Bailey had provided, in that “his hat, shirt, and pants all appeared to be different shades of green.” Dkt. No. 77-56 at 13-14. This characterization is unsupported by the BWC footage from the Responding Officers, which a reasonable juror could conclude shows Plaintiff wearing a grey hat, a white striped shirt, grey pants, and a puffy black patterned jacket, none matching. See generally Dkt. Nos. 77-15, 77-16, 77-17. Defendants’ claim is also contradicted by the assessment from the non-party officer who cataloged Plaintiff's clothing as consisting of a “Baseball Hat (Grey, green Bird Game logo)[,]” “Blue/green/white striped shirt[,]” “Grey pants with belt[,]” and a “Black winter coat[.]” Dkt. No. 77-10 at 3. In any event, the varied articles of clothing Plaintiff wore on May 6, 2019 are not indisputably a “green sweatsuit,” like Ms. Bailey had described. Dkt. No. 90-1 at ¶ 18. And Ms. Bailey never described the suspect wearing any hat at all, Dkt. No. 77-5, let alone a hat with prominent neon lettering, like the one Plaintiff had on his head when Officer Russell arrived, walked over to Plaintiff and Ms. Bailey, and began speaking with them, Dkt. No. 77-16 at 0:00. Given this factual record, Defendants have not established that Plaintiff's clothing “matched” the description of the suspect such that they are entitled to judgment as a matter of law. *20 At best, Defendants’ argument is that they had probable cause to arrest Plaintiff because some of his clothing may have had some green. The Court finds this argument unpersuasive given the Second Circuit's analysis in Dancy v. McGinley. In that Section 1983 case, police officers received a description of a robbery suspect as simply “[t]hin black male, brown jacket.” 843 F.3d at 99. Minutes later, officers stopped, and ultimately arrested, two teenagers near the crime scene, one of whom was wearing a “camouflage-patterned coat, with green, light green, and brown patches.” Id. at 100, 101. As relevant here, the panel reasoned that there was not even reasonable suspicion to stop this teenager, who “was indeed thin, black, and male. But, unlike the description, he was wearing a camouflage-patterned coat.” Id. at 109. The Circuit went on to explain that “[w]hile such a discrepancy does not necessarily defeat a finding of reasonable suspicion ... the remaining description—thin, black, and male—is too vague in the circumstances here to justify a stop of anyone meeting it[.]” Id. (citations omitted) (collecting cases). A reasonable juror could reach a similar conclusion here. Plaintiff's age, height, and build were nothing like the physical description Defendants received for the suspect. Further, Plaintiff's clothes, in color and type, did not constitute a “green sweatsuit,” and thus did not provide Defendants reasonable suspicion to detain him, let alone probable cause to arrest him. See Dufort v. City of New York, 874 F.3d 338, 350 (2d Cir. 2017) (“Viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find that the police arrested [plaintiff] based on little more than a witness's statement that he wore a similar shirt to that of one of [the victims’] attackers. Although a jury could also interpret the evidence differently, the record presents genuine issues of material fact that preclude the conclusion that there was probable cause as a matter of law and that, instead, require a trial on the merits.”); see also supra n.13. Defendants’ argument regarding Plaintiff's presence at the scene fares no better. See, e.g., United States v. Delossantos, 536 F.3d 155, 160 n.4 (2d Cir. 2008) (“[A] person's presence at a crime scene or association with criminal suspects do not, without more, amount to probable cause to arrest.”); Dufort, 874 F.3d at 350 (“Police do not have particularized probable cause to make an arrest simply because a suspect has suspicious acquaintances, or happens to be at the scene of a crime[.]”) (citation omitted); Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003) (“[A]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”) (quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). Plaintiff was present in front of the apartment building where he lived and, as detailed earlier, Defendants were repeatedly informed that the assailant was another man who had already left the scene. Mitchell v. City of New York, 841 F.3d 72, 78 (2d Cir. 2016) (“[T]he failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause.”) (quoting Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248, 1250 (1983)). As to the blood on Plaintiff's lip, in response to Officer Russell's question, Ms. Bailey can be heard explaining that “he was hit too in the whole altercation, you see that stick he was hit with that.” Dkt. No. 77-55 at ¶ 12; see also Dkt. No. 77-16 at 0:05. In sum, the totality of the circumstances proffered by Defendants fails to establish an undisputed factual record on which to grant summary judgment. Delossantos, 536 F.3d at 161. A reasonable juror could find that Defendants lacked probable cause to arrest Plaintiff at approximately 7:34 p.m. on May 6, 2019. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 36 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 3. Subsequent Information Defendants go on to argue that, between handcuffing Plaintiff and formally arresting him approximately five hours later, they obtained additional information that provided them probable cause to arrest Plaintiff. Dkt. No. 77-56 at 15-21. Because a reasonable juror could conclude that Plaintiff had been arrested at approximately 7:34 p.m., however, this subsequent information is not relevant to analyzing probable cause. See, e.g., Carruthers, 153 F.4th at 179 (“To assess probable cause, a court considers only the facts ‘available to the officer at the time of the arrest and immediately before it.’ ”) (quoting Ashley, 992 F.3d at 136); Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (“The inquiry is limited to ‘whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest.’ ”) (quoting Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006)). Nonetheless, for the avoidance of doubt, a reasonable juror could conclude that none of the subsequent information identified by Defendants, in combination with the earlier information discussed above, provided probable cause to formally arrest Plaintiff at approximately 1:00 a.m. on May 7, 2019. a. Plaintiff's Continued Detention Prior to His Interrogation *21 Defendants first argue that the Responding Officers “performed many investigative tasks” after handcuffing Plaintiff at approximately 7:34 p.m., and that Detective Brimmer “performed several investigative tasks” prior to interrogating Plaintiff at approximately 10:30 p.m. Dkt. No. 77-56 at 15, 17. With respect to the Responding Officers, however, the only additional information Defendants identify is Officer Cecile's subsequent call with Ms. Bailey. Id. at 15-16. During that call, Ms. Bailey appears to have again stated that the man who hit Mr. Jones was “wearing a green jump suit,” Dkt. No. 77-55 at ¶ 100, and was “like 35 to 40” years old, Dkt. No. 77-15 at 16:43, not the “[l]ate 50s or early 60s” that Officer Cecile perceived Plaintiff to be, Dkt. No. 77-25 at 7:5-11. Such information is largely consistent with—and duplicative of—the information Responding Officers already had. See supra Section IV.A.2. Thus, a reasonable juror could conclude that Plaintiff still did not match the description that Ms. Bailey provided. Defendants further contend that the Responding Officers undertook various investigative efforts at 941 James Street after handcuffing Plaintiff. Dkt. No. 77-56 at 15-16. But Defendants identify no relevant additional information from these efforts. Id. Instead, Defendants take the position that the Responding Officers had “ample” probable cause to arrest Plaintiff because “[a]t the conclusion of th[eir] investigation, nothing excluded Plaintiff as the assailant. In other words, no eye-witness exonerated Plaintiff ... and there was no available surveillance evidence.” Id. at 16. Defendants cite no legal authority for the proposition that unless a person is “exonerated” by an eyewitness or video evidence at the scene of a crime, there is probable cause to arrest them. Cf. Ricciuti, 124 F.3d at 130 (“This argument—an ill-conceived attempt to erect a legal barricade to shield police officials from liability—is built on the most fragile of foundations; it is based on an incorrect analysis of the law and at the same time betrays a grave misunderstanding of those responsibilities which the police must have toward the citizenry in an open and free society.”). Defendants identify nothing from these investigative efforts that even suggested that Plaintiff had committed a crime. Hawkins, 37 F.4th at 858. With respect to Detective Brimmer's investigation prior to Plaintiff's interrogation, Defendants similarly contend that Detective “Brimmer did not discover any evidence that suggested Plaintiff was not the assailant.” Dkt. No. 77-56 at 17. More importantly, Defendants again fail to identify any additional information developed by Detective Brimmer that indicated Plaintiff was the assailant. Id. Moreover, a reasonable juror could conclude that the factual record belies Defendants’ claim. The results of the canvas conducted by Detective Brimmer and his colleague further indicated that there had been three men drinking at the scene of the assault, not just Plaintiff and Mr. Jones, and thus further supported the possibility that Plaintiff was not the assailant. Dkt. No. 77-13 at 2; see also Dkt. No. 77-56 at 12. b. Plaintiff's Interrogation Defendants next argue that Plaintiff's statements during his interrogation by the Detectives provided probable cause for his arrest, and that “Plaintiff voluntarily waived his rights and was not coerced into a confession.” Dkt. No. 77-56 at 18-21. 17 *22 “Challenges to the voluntariness of a confession are based on two overlapping constitutional provisions: (1) due process protections under the Fifth (or Fourteenth) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 37 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 19 Amendment, and (2) the Fifth Amendment privilege against self-incrimination.” United States v. Mendonca, 88 F.4th 144, 163 (2d Cir. 2023) (citing Dickerson v. United States, 530 U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)). “As a general matter, courts’ descriptions of statements as ‘compelled’ (invoking the text of the Self-Incrimination Clause) and/or ‘involuntary’ (invoking, arguably, the Due Process Clause) are often used interchangeably and the words often treated synonymously.” United States v. Allen, 864 F.3d 63, 82 n.84 (2d Cir. 2017) (collecting cases). As a practical matter, courts “look at the totality of circumstances surrounding a Miranda waiver and any subsequent statements to determine knowledge and voluntariness.” United States v. Taylor, 745 F.3d 15, 23 (2d Cir. 2014) (citation omitted). “To be effective, a waiver of a defendant's Miranda rights must be both knowing and voluntary.” United States v. LaPorte, 779 F. App'x 63, 65 (2d Cir. 2019) (citing United States v. Plugh, 648 F.3d 118, 127 (2d Cir. 2011)). In the Miranda context, “ ‘knowing’ means with full awareness of the nature of the right being abandoned and the consequences of abandoning it, and ‘voluntary’ means by deliberate choice free from intimidation, coercion, or deception.” Taylor, 745 F.3d at 23 (quoting Plugh, 648 F.3d at 127). Even if a waiver is knowing and voluntary, courts “must nonetheless determine whether the [subsequent] inculpatory statements themselves were voluntary.” Id. (citing Dickerson, 530 U.S. at 444, 120 S.Ct. 2326). Defendants make various factual arguments as to why “there is no evidence that Plaintiff was not of sound mind or so intoxicated as to render his confession involuntary.” Dkt. No. 77-56 at 19-20. Given the present factual record, however, Defendants are not entitled to summary judgment on this issue. As an initial matter, Defendants’ own expert contradicts Defendants’ position. Id. at 20. Dr. Weisman has repeatedly opined that, over the course of the interrogation, “Mr. Adams being under the combination of duress, fatigue, limitations of his legal knowledge, and some level of alcohol intoxication, became emotionally and cognitively distressed, resigned, and compelled to offer the narrative of the crime being demanded of him.” Dkt. No. 77-52 at 11-13. Further, the parties agree that Plaintiff consumed in excess of one hundred ounces of malt liquor in the hours before his interrogation. Dkt. No. 77-55 at ¶¶ 410-11, 414, 420. Plaintiff stated “I'm drunk” shortly after the interrogation began, Dkt. No. 77-22 at 6:22, and repeatedly referenced his drunkenness thereafter, Dkt. No. 90-1 at ¶ 522. Nearly three hours after the interrogation began, Plaintiff's BAC, as measured by Defendants, was still almost twice the legal limit. Dkt. No. 77-24; see also supra n.4. Dr. Weisman opined that, even at this lower BAC, “[m]otor function, speech, and judgment are all severely affected” and that “[s]taggering, and slurred speech, may be observed.” Dkt. No. 77-52 at 10. A reasonable juror could conclude that Plaintiff's body movements, speech, and demeanor during the videotaped interrogation demonstrate a significant level of intoxication, and also that they are consistent with Dr. Weisman's opinion. See generally Dkt. No. 77-21. Defendants’ suggestion that Plaintiff's mental health during the interrogation was not at issue because he did not share any hallucinations with the Detectives proves too much. Dkt. No. 77-56 at 20 (“[A]t no point during the interview did Plaintiff indicate that he was hearing voices.... Similarly, at no point during the interview did Plaintiff indicate that he could see things that the Defendant Detectives could not see.”). Plaintiff's medical diagnoses at the time included schizophrenia, depression, and alcoholism. Dkt. No. 77-42 at 2-3; Dkt. No. 77-55 at ¶ 454. During the interrogation, Plaintiff explained that he was not currently working because he had a dual diagnosis and that his primary care doctor, psychiatrist, and counselor were at the same local healthcare provider. Dkt. No. 77-22 at 102:16-103:16. As for Defendants’ argument that Plaintiff was determined not to be incapacitated more than a year after the interrogation, that does little to establish the voluntariness of Plaintiff's waiver on May 6, 2019. Dkt. No. 77-55 at ¶¶ 390-98. *23 Given this record, a reasonable juror could determine that Plaintiff's Miranda waiver was not voluntary. Even if Defendants had established that Plaintiff's waiver was voluntary, they have not demonstrated that it was also knowing. LaPorte, 779 F. App'x at 65. Defendants do not appear to make any express arguments on this second requirement for waiver. See, e.g., Dkt. No. 77-56 at 18 (“[A]s discussed below, Plaintiff voluntarily waived his rights and was not coerced into a confession.”); id. at 25 (“[F]or the reasons stated above, Plaintiff voluntarily waived his Miranda rights and his confession was freely given.”). In any event, Dr. Weisman's opinions also include his assessment that—when sober—Plaintiff's “basic understanding of Miranda” ranks in the eighteenth percentile of pretrial defendants and that Plaintiff “has deficits in his Miranda understanding, particularly regarding legally Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 38 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 20 acceptable deceptive police practices as well as other specific aspects of remaining silent versus talking to the police.” Dkt. No. 77-52 at 7, 8-9. Because “knowing” for purposes of Miranda means “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,” a reasonable juror could find that Plaintiff's waiver was not knowing. United States v. O'Brien, 926 F.3d 57, 73 (2d Cir. 2019) (quoting Berghuis v. Thompkins, 560 U.S. 370, 382-83, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010)). A reasonable juror could also find Plaintiff's subsequent confession, after extensive interrogation by the Detectives, involuntary for similar reasons. See, e.g., Taylor, 745 F.3d at 24 (“An individual's mental state should be considered in the voluntariness inquiry to the extent it allowed law enforcement to coerce the individual.... It is clear, however, that when ‘a person is unconscious or drugged or otherwise lacks capacity for conscious choice,’ a confession cannot be voluntary.”) (first citing Colorado v. Connelly, 479 U.S. 157, 164-65, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); then citing United States v. Salameh, 152 F.3d 88, 117 (2d Cir. 1998) (per curiam); and then quoting Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Again, Defendants’ expert has repeatedly opined that, during the interrogation, “Mr. Adams being under the combination of duress, fatigue, limitations of his legal knowledge, and some level of alcohol intoxication, became emotionally and cognitively distressed, resigned, and compelled to offer the narrative of the crime being demanded of him.” Dkt. No. 77-52 at 11-13. The Court also notes that, prior to Plaintiff's confession, the Detectives removed Plaintiff's phone from his person and then from the room. Dkt. No. 77-22 at 27:6-20, 60:24-61:3. During the subsequent break, and prior to Plaintiff's confession, Plaintiff is visible in the video talking to himself and trying to open the locked door keeping him in the interrogation room. Dkt. No. 77-21b at 14:00-17:00; cf. Poventud v. City of New York, 750 F.3d 121, 145 & n.6 (2d Cir. 2014) (Lynch. J., concurring) (“[W]e know that false confessions have been obtained by pressures much less imposing than those to which [plaintiff] was subjected.”) (collecting authorities). *24 Because a reasonable juror could determine that Plaintiff's confession was involuntary, based in part on his intoxication, capacity, and the length and nature of his detention and interrogation, the Court finds Defendants’ argument that the Detectives permissibly used “falsehoods” during the interrogation to be somewhat beside the point. Dkt. No. 90 at 7 (citing Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (“The fact that the police misrepresented statements that [a witness] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible.”)); see also United States v. Caraballo, 282 F. App'x 910, 914 (2d Cir. 2008) (“We have held that ‘[w]hether a confession is a product of coercion may only be determined after a careful evaluation of the totality of all the surrounding circumstances, including the accused's characteristics, the conditions of the interrogation, and the conduct of law enforcement officials.’ ”) (alteration in original) (quoting United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991)). For all of these reasons, 18 the Motion is denied as to Plaintiff's federal and state claims for false arrest following his handcuffing at approximately 7:34 p.m. on May 6, 2019. B. Malicious Prosecution under Section 1983 “To prevail on a malicious prosecution claim under New York law, a plaintiff must show ‘(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding[,] and (4) actual malice.’ ” Alexander, 132 F.4th at 158 (alteration in original) (quoting Kee, 12 F.4th at 161-62). Section 1983 requires these same four elements, “but it also imposes an additional one: ‘(5) a sufficient post- arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights.’ ” Id. (first quoting Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); and then citing Chiaverini v. City of Napoleon, 602 U.S. 556, 562, 144 S.Ct. 1745, 219 L.Ed.2d 262 (2024)). Defendants challenge only the probable cause element of Plaintiff's Section 1983 claim for malicious prosecution. Defendants argue that this claim fails because (i) “the probable cause supporting Plaintiff's arrest was overwhelming;” (ii) “[t]hat probable cause only increased in the day following Plaintiff's arrest;” and (iii) the DA's Office sought and obtained Plaintiff's indictment. Dkt. No. 77-56 at 21-24. Defendants’ first argument is unpersuasive for the reasons detailed previously. See supra Section IV.A. Given the current record, a reasonable juror could find that Defendants did not have probable cause to either arrest or prosecute Plaintiff based on the events that transpired between approximately 7:30 p.m. on May 6, 2019, and 1:00 a.m. on May 7, 2019. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 39 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 21 See, e.g., Walsh v. City of New York, 742 F. App'x 557, 562 (2d Cir. 2018) (“ ‘Probable cause, in the context of a malicious prosecution, has ... been described as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty.’ ... Because a reasonable juror could believe that probable cause did not exist for [plaintiff]’s arrest, as noted above, we conclude that it follows that a reasonable juror could also believe that probable cause did not exist for [plaintiff]’s prosecution.”) (first alteration in original) (citing Stansbury, 721 F.3d at 95). Summary judgment is thus not appropriate on this ground. *25 Defendants’ second argument relies on disputed facts that are also not appropriately resolved at summary judgment. Defendants contend that, later on May 7, 2019, Detective Brimmer received additional information from Ms. Bailey and Ms. Goldych. Dkt. No. 77-56 at 22-23. But, as detailed earlier, the parties dispute what Ms. Bailey actually said to Detective Brimmer. See supra Section II.B.4.a. Moreover, Ms. Bailey's sworn statement suggests that she provided significant exculpatory information to Detective Brimmer. See, e.g., Dkt. No. 85-10 at ¶¶ 7-8, 10; Napolitano, 29 F.4th at 107 (“[W]e have also consistently held, as relevant here, that ‘an officer may not disregard plainly exculpatory evidence.’ ”) (quoting Panetta, 460 F.3d at 395). Because there is a genuine dispute of material fact as to what information Ms. Bailey provided Detective Brimmer—including whether it was exculpatory—such information is not an appropriate basis on which to find the existence of probable cause as a matter of law. Nor is the information that Ms. Goldych apparently provided Detective Brimmer on May 7, 2019, during his third attempt to speak with her. Dkt. No. 77-19 at 2-3. Given Ms. Goldych's intoxication, memory, and the absence of a written statement from her, the information attributed to her does not establish probable cause entitling Defendants to judgment as a matter of law. See supra n.7. Defendants’ third argument rests on the presumption of probable cause created by a grand jury indictment. See, e.g., Werkheiser v. Cnty. of Broome, 655 F. Supp. 3d 88, 103 (N.D.N.Y. 2023) (“[I]ndictment by a grand jury creates a presumption of probable cause that may only be rebutted by evidence that the indictment was procured by ‘fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.”) (quoting Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)). The parties agree that such a presumption applies in this case, but dispute whether the factual record rebuts it. Dkt. No. 77-56 at 23; Dkt. No. 85 at 28-29. A reasonable juror could conclude that the current factual record rebuts such a presumption. Not only was the prosecution against Plaintiff dismissed, senior prosecutors in the DA's Office have indicated that the basis for the prosecution was deeply flawed. Dkt. No. 85-7 at 1; Dkt. No. 85-11 at 9. A reasonable juror could find, for example, that Plaintiff's prosecution was initiated by (i) the arrest report charging Plaintiff that Detective Brimmer prepared; (ii) the allegedly false confession obtained by Detectives Brimmer and Beauchine, see, e.g., Ekukpe v. Santiago, 823 F. App'x 25, 32 (2d Cir. 2020) (“A jury ‘may permissibly find that a defendant initiated a prosecution where he filed the charges or prepared an alleged false confession and forwarded it to prosecutors.’ ”) (quoting Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010)); Dufort, 874 F.3d at 353 (“The ‘initiation’ requirement is met when the plaintiff can establish that police officers forwarded statements to a prosecutor without sharing that the statements were suspect.”) (citing Manganiello, 612 F.3d at 163); and/or (iii) the purportedly false statements in the police reports prepared by Detective Brimmer, Officer Cecile, Officer Tolone, and Officer Russell, 19 see, e.g., Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (“[G]enerally in malicious prosecution actions alleging that a police officer provided false information to a prosecutor, what prosecutors do subsequently has no effect whatsoever on the police officer's initial, potentially tortious behavior.”) (collecting cases); Werkheiser, 655 F. Supp. 3d at 103 (“A defendant could have initiated a prosecution ‘by creating material, false information and forwarding that information to a prosecutor or by withholding material information from a prosecutor.’ ”) (first quoting Ying Li v. City of New York, 246 F. Supp. 3d 578, 605 (E.D.N.Y. 2017); additional citations omitted). Moreover, Plaintiff is correct that a “jury examining Detective Brimmer's police report alongside Ms. Bailey's statements could conclude that Det. Brimmer fabricated what [Ms.] Bailey told him to support, rather than contradict, Mr. Adams’ false confession.” Dkt. No. 85 at 27; see also Manganiello, 612 F.3d at 162 (“Like a prosecutor's knowing use of false evidence to obtain a tainted conviction, a police officer's fabrication and forwarding to prosecutors of known false evidence works an unacceptable ‘corruption of the truth- seeking function of the trial process.”) (quoting Ricciuti, 124 F.3d at 130); N.Y. Crim. Proc. Law § 60.50 (“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.”); N.Y. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 40 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 22 Crim. Proc. Law § 70.10(1) (“[E]vidence is not legally sufficient when corroboration required by law is absent.”). *26 The Court also agrees with Plaintiff that a reasonable juror could conclude that the police reports from the Responding Officers contained “false or misleading information that wrongfully inculpated Mr. Adams and failed to include key exculpatory information.” Dkt. No. 85 at 28; see also Manganiello, 612 F.3d at 162 (“Where there is some indication in the police records that, as to a fact crucial to the existence of probable cause, the arresting officers may have ‘lied in order to secure an indictment’ and ‘a jury could reasonably find that the indictment was secured through bad faith or perjury,’ the presumption of probable cause created by the indictment may be overcome.”) (quoting Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003)); Werkheiser, 655 F. Supp. 3d at 104 (“Alternatively, the presumption ‘can be overcome by a showing by claimant that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures.’ ”) (quoting Hill v. Melvin, No. 05- cv-6645, 2006 WL 1749520, at *13 (S.D.N.Y. June 27, 2006)). For instance, Officer Cecile's report states that Ms. “Bailey stated that the suspect was an old black man.” Dkt. No. 77-6 at 5. But this assertion is contrary to the actual description of the suspect contained in the 911 call notes, Dkt. No. 90-1 at ¶ 18 (indicating that Ms. Bailey stated the suspect was only 25 to 35 years old) and the similar description Ms. Bailey appears to have provided to Officer Cecile during their subsequent phone conversation, Dkt. No. 77-15 at 16:43 (Officer Cecile clarifying “the guy who got knocked out was, like, in his mid to late 20s, and it was, like, an older guy, like 35 to 40, that hit him?”). Officer Cecile also noted in his report that the suspect had been described as wearing “a green sweat suit,” while Plaintiff was wearing “a grayish/teal puffy jacket and green pants[.]” Dkt. No. 77-6 at 5. As detailed earlier, while there is presently a factual dispute as to whether Plaintiff's pants were green, Defendants do not contend that Plaintiff's jacket was green. See supra Section IV.A.2 (Defendants arguing that Plaintiff's “hat, shirt and pants all appeared to be different shades of green”) (quoting Dkt. No. 77-56 at 14); see also Dkt. No. 77-10 at 3 (report from non-party officer stating that Plaintiff had a “Black winter coat”). Similarly, Officer Tolone's report states that the suspect was wearing “a green jump suit,” while Plaintiff “was wearing green pants and a grey / green vest.” Dkt. No. 77-8 at 2. As also detailed earlier, Defendants do not contend that Plaintiff was wearing a vest at all. See supra Section IV.A.2; see also Dkt. No. 77-10 (report from non-party officer listing Plaintiff's items of clothing, none of which are a vest). Given all this, a reasonable juror could find that Officers Cecile and Tolone fabricated portions of their reports to align their descriptions of Plaintiff with that of the suspect. Additionally, Officers Cecile and Russell omitted any mention of the exculpatory facts that Ms. Bailey, 20 Ms. Goldych, and Plaintiff all indicated that a third man had assaulted Mr. Jones and left the scene. Dkt. Nos. 77-6, 77-7; see also Werkheiser, 655 F. Supp. 3d at 103; Napolitano, 29 F.4th at 107. For his part, Officer Tolone's report states only that “when we initially arrived on scene Adams stated there was another male that started a fight with Jones.” Dkt. No. 77-8 at 2. *27 With respect to each Individual Defendant, then, a reasonable juror could find that the indictment “was procured by ‘fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith,’ ” or “that the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures,” Werkheiser, 655 F. Supp. 3d at 104 (first quoting Savino, 331 F.3d at 72; and then quoting Hill, 2006 WL 1749520, at *13). Given the current factual record, a reasonable juror could find that the presumption of probable cause is rebutted. Hicks v. Marchman, 719 F. App'x 61, 65 (2d Cir. 2018) (“[T]he presumption can be rebutted by showing ‘that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith[.]’ ”) (second alteration in original) (quoting Colon, 468 N.Y.S.2d 453, 455 N.E.2d at 1250-51). Accordingly, the Court denies the Motion as to Plaintiff's Section 1983 claim for malicious prosecution against the Individual Defendants. 21 C. Fabricated Evidence under Section 1983 In order to prevail on “a Section 1983 fabrication of evidence claim, a plaintiff must demonstrate that ‘(1) [an] investigating official (2) fabricat[ed] information (3) that is likely to influence a jury's verdict, (4) forward[ed] that information to prosecutors, and (5) the plaintiff suffer[ed] a deprivation of life, liberty, or property as a result.” Ortiz v. Stambach, 137 F.4th 48, 67 (2d Cir. 2025) (alterations in original) (quoting Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 41 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 23 Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016)). Defendants first argue that Plaintiff's fabricated evidence claim is limited to his allegedly false confession and should thus be dismissed against the Responding Officers, “who were not present for Plaintiff's interview and were not involved in his confession.” Dkt. No. 77-56 at 25, Dkt. No. 90 at 8. The Court agrees with Plaintiff that this claim is not so limited, and that “there are disputed issues of fact from which a reasonable juror could find that” each of the Responding Officers “fabricated inculpatory evidence [or] suppressed exculpatory evidence to implicate [Plaintiff] wrongly.” Dkt. No. 85 at 30; see also supra Section IV.B. As to the confession, Defendants’ renewed argument that Plaintiff voluntarily waived his Miranda rights and voluntarily confessed remains unpersuasive for the reasons previously set forth. Dkt. No. 77-56 at 25; see also supra Section IV.A.3.b. Defendants’ final argument that the Detectives did not know Plaintiff's confession was false is similarly insufficient to grant summary judgment on this claim. Dkt. No. 77-56 at 25-26. A reasonable juror could view the videotaped interrogation of Plaintiff and conclude that the Detectives knew Plaintiff's eventual confession was false because, for example, Plaintiff was visibly intoxicated; Plaintiff denied assaulting Mr. Jones nearly 200 times, Dkt. No. 85-2 at ¶ 570; Plaintiff “became emotionally and cognitively distressed, resigned, and compelled to offer the narrative of the crime being demanded of him,” as Defendants’ expert opined after viewing the videotaped interrogation, Dkt. No. 77-52 at 11-13; or, as Detective Brimmer noted in his police report, because Plaintiff “provided several different versions about what occurred,” Dkt. No. 77-19 at 2, some of which were implausible, see, e.g., Dkt. No. 77-22 at 86:22-87:22 (Plaintiff stating that he was able to hit Mr. Jones in the head three of four times with a stick before Mr. Jones fell down); id. at 100:8-21 (Plaintiff stating that Mr. Jones punched him twice over the course of the day, both times on the “same place” on his lip and Detective Brimmer responding “[y]eah, he knows where to get you, man. He's got aim on that thing, huh”). See also Ortiz, 137 F.4th at 62, 67-68 (“[T]he law does not require a plaintiff to prove that police officers fabricated evidence or engaged in bad faith through any particular type of evidence and, thus, a plaintiff may do so entirely through circumstantial evidence.... ‘The jury, of course, was not required to believe [the defendant's] testimony denying knowledge. Issues relating to state of mind, such as knowledge and intent, may be influenced by assessments of credibility and often must be established by circumstantial evidence.’ ”) (last alteration in original) (quoting United States v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992)). Moreover, if a jury were to believe Ms. Bailey that Detective Brimmer fabricated various statements he attributed to her in his police report, they could also conclude that he did so knowingly. *28 Accordingly, the Court denies the Motion as to Plaintiff's Section 1983 claim for fabricated evidence against the Individual Defendants. 22 D. Monell Claim Section 1983 “does not impose vicarious liability on a municipality for the actions of its employees.” Alexander, 132 F.4th at 160 (citing Friend v. Gasparino, 61 F.4th 77, 93 (2d Cir. 2023)). Instead, “[t]o hold a [municipality] liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (second alteration in original) (first quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007); and then citing Monell v. Dep't. of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). As to the first element, a plaintiff can establish the existence of an official policy or custom in four ways: (1) a formal policy endorsed by the municipality, ...; (2) actions directed by the government's “authorized decisionmakers” or “those who establish governmental policy,” ...; (3) a persistent and widespread practice that amounts to a custom of which policymakers must have been aware, ...; or (4) a “constitutional violation[ ] resulting from [policymakers’] failure to train municipal employees[.]” Deferio v. City of Syracuse, 770 F. App'x 587, 589-90 (2d Cir. 2019) (final alteration added) (first citing Turpin v. Mailet, Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 42 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 24 619 F.2d 196, 199 (2d Cir. 1980); then quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); then citing Turpin, 619 F.2d at 199; and then quoting City of Canton v. Harris, 489 U.S. 378, 380, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Defendants first argue that Plaintiff's Monell claim should be dismissed because there is no underlying constitutional violation. Dkt. No. 77-56 at 26. Given that Plaintiff's constitutional claims survive summary judgment, this argument is unavailing. See supra Section IV.A-C. Defendants next argue that the purportedly similar arrests referenced in one paragraph of the Complaint do not establish a Monell claim. Dkt. No. 77-56 at 27-28. Those alleged instances appear to relate to excessive force and racial profiling claims against non-party officers in the Syracuse Police Department over a span of some years. Dkt. No. 1 at ¶ 61. In part because Plaintiff has not brought an excessive force claim, the Court agrees with Defendants that these alleged instances are insufficiently similar to the constitutional deprivations Plaintiff allegedly suffered. See Campo v. City of New York, No. 19-cv-04364, 2022 WL 970730, at *12 (E.D.N.Y. Mar. 31, 2022) (“A plaintiff may also plead the existence of de facto customs or policies ‘by citing to complaints in other cases that contain similar allegations.’ ”) (quoting Gaston v. Ruiz, No. 17-cv-1252, 2018 WL 3336448, at *6 (E.D.N.Y. July 6, 2018)). As Defendants correctly point out in reply, Plaintiff also has not opposed the Motion on this narrow issue. Dkt. No. 90 at 8-9; see also Jackson, 766 F.3d at 195. Accordingly, any Monell claim based on these dissimilar cases or racial profiling is dismissed. *29 For whatever reason, Defendants do not squarely address the core of Plaintiff's Monell claim. Compare Dkt. Nos. 77-56, 90, with Dkt. No. 1 at ¶¶ 52-60 (alleging, inter alia, that Defendant City “has a policy, custom, practice and pattern of conduct in place that enables its agents and employee[ ] police officers to act with deliberate indifference to the constitutional rights of individuals[,]” including “inadequate guidelines for conducting interrogations, obtaining false confessions and corroborating false confessions with eye witness accounts”). Plaintiff's opposition to the Motion argues that Defendant City was deliberately indifferent to his constitutional rights by failing “to supervise and/or train its officers to undertake constitutionally lawful detentions, interrogations, and practices to forego the fabrication of evidence.” Dkt. No. 85 at 31-33 (citing Dkt. No. 1 ¶¶ 53, 54, 58). “A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion)). The Second Circuit has set forth the following requirements before a municipality's failure to train or supervise constitutes deliberate indifference: “First, the plaintiff must show that a policymaker knows ‘to a moral certainty’ that her employees will confront a given situation.” ... “Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.” ... “Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.” ... “In addition, at the summary judgment stage, plaintiffs must ‘identify a specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation.’ ” Jenkins, 478 F.3d at 94 (first quoting Walker v. City of New York, 974 F.2d 293, 297, 298 (2d Cir. 1992); and then quoting Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006)). Regardless of whether Plaintiff has satisfied the first three of these requirements, his assertions with respect to the Responding Officers’ training lack the necessary factual detail and are too conclusory. Dkt. No. 85 at 31. He fails to identify any “specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury[,]” Green, 465 F.3d at 81. Accordingly, any Monell claim based on the training of the Responding Officers is dismissed. For similar reasons, any Monell claim based on training related to fabricated evidence generally is also dismissed. Plaintiff's arguments as to the training the Detectives received warrant a different outcome however. Plaintiff contends that the Detectives received inadequate “training on how to avoid false confessions” and “improperly interrogated” Plaintiff, leading to his allegedly false confession. Dkt. No. 85 at 33. Unlike with the Responding Officers and fabricated evidence more generally, Plaintiff also sets forth various facts regarding the Detectives’ interrogation training, facts which Defendants Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 43 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 25 largely do not deny. Dkt. No. 90-1 at ¶¶ 523-28, 531-33, 587-88. Additionally, the Report that Plaintiff includes in his opposition to the Motion states that a deputy police chief at the Syracuse Police Department “was able to explain there is case law which supports interviewing a person who is intoxicated. The only limitation to this is if the person being interviewed is intoxicated to the point of being in a manic state.” Dkt. No. 85-11 at 9. The Report further states that “it is a matter of training that detectives are trained on the fact that interviewing an intoxicated person is lawful, unless in this manic state.” Id. The Report indicates that neither Detective thought Plaintiff was “excessively intoxicated” during the interview on May 6, 2019. Id. at 11, 12. Seemingly because of such training, the Report determined that “[t]herefore, the actions by [the D]etectives during that interview were lawful and proper.” Id. 9. *30 The Report went on to conclude that Plaintiff's “claim that he was arrested and charge[d] for a crime he did not commit is true[,]” and that while Plaintiff was charged “due to his own admission[,]” “[t]he interview conducted by Det. Beauchine and then Det. Brimmer was lawful and proper. There was no violation of any rules and regulations by Det. Beauchine or Det. Sgt. Brimmer, or any officer.” Id. at 12. 23 Following that conclusion are signatures for the chief of police, the first deputy chief, a bureau chief, a supervisor, and the investigating sergeant. Id. at 13. Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012) (“To establish deliberate indifference a plaintiff must show that a policymaking official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or sanction violations of constitutional rights.”); Donovan v. Norwich City Sch. Dist., No. 19-cv-1638, 2022 WL 623904, at *11 (N.D.N.Y. Mar. 3, 2022) (“An official's title, though not dispositive of his authority to make policy, is relevant for the interferences fairly to be drawn therefrom.”) (quoting Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)). Drawing all reasonable inferences in Plaintiff's favor for purposes of summary judgment, a reasonable juror could find the requirements for deliberate indifference satisfied with respect to the Detectives’ training for interrogating intoxicated individuals. First, the apparent existence of this very training reflects “a moral certainty” that detectives will need to interview such individuals. Jenkins, 478 F.3d at 94 (citation omitted). Second, Detective Brimmer's own testimony suggests that interviewing intoxicated individuals presents a “difficult choice.” Id. (citation omitted); Dkt. No. 77-49 at 25:16-24 (Detective Brimmer testifying with respect to intoxication and mental capacity during custodial interviews that “I can't think of any exact incident where that has occurred but I do understand how, you know, severe intoxication or, you know, severe mental health where someone's having a schizophrenic outbreak, or something to that effect, is certainly going to affect what they're telling us. And it would be a judgment call and we likely would not interview that person if they're under extreme intoxication or having an emotional and/or mental health crisis.”) (emphasis added). Third, Defendants’ own expert indicates that the “wrong choice” can result in a false confession, and thus a deprivation of constitutional rights. Jenkins, 478 F.3d at 94 (citation omitted); Dkt. No. 77-52 at 11-13; see also Dkt. No. 85-7 at 1 (“The district attorney said the case shows police and prosecutors need better training in identifying the dynamics of false confessions. ‘While it seems counterintuitive that someone would confess to something they did not do, it happens,’ [DA] Fitzpatrick said. ‘And in this case, I hope all involved analyze the root causes of why this happened. [’]”). Finally, the Report identifies a “specific deficiency in the city's training program,” Jenkins, 478 F.3d at 94 (citation omitted), in that the only limitation on interrogating intoxicated individuals appears to be when they are “in a manic state,” 24 Dkt. No. 85-11 at 9. *31 At bottom, Plaintiff contends that the Detectives’ training caused them to violate his constitutional rights, by interrogating him while he was intoxicated and coercing him into providing a false confession. Plaintiff may well ultimately fail to prove such a claim. See, e.g., Outlaw v. City of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (“[D]eliberate indifference is a stringent standard of fault.”) (alteration in original) (quoting Connick, 563 U.S. at 61, 131 S.Ct. 1350). But he has done enough to survive summary judgment— particularly in the absence of more specific argument from Defendants regarding deliberate indifference. According, the Motion is denied as to Plaintiff's Monell claim based on the Detectives’ interrogation training. E. Negligent Supervision and Retention under New York law In general, “[t]o state a claim for negligent supervision or retention under New York law, in addition to the standard elements of negligence, a plaintiff must show[, inter alia,] (1) that the tort-feasor and the defendant were in an employee- Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 44 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 26 employer relationship ...; [and] (2) that the employer ‘knew or should have known of the employee's propensity for the conduct which caused the injury’ prior to the injury's occurrence[.]” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (first citing D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896, 901-02 (1987); and then quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, 793 (N.Y. App. Div. 1997)). Additionally, “[w]hen a negligence claim is asserted against a municipality or its employees, the threshold inquiry is ‘whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose.’ ” Velez v. City of New York, 730 F.3d 128, 134 (2d Cir. 2013) (quoting Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 972 N.Y.S.2d 169, 995 N.E.2d 131, 134 (2013)). “Providing police protection has long been recognized as a quintessential governmental function” and when “a municipality undoubtedly acts in a governmental capacity, a plaintiff may not recover without proving that the municipality owed a ‘special duty’ to the injured party.” Id., 972 N.Y.S.2d 169, 995 N.E.2d at 135 (citing Valdez v. City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 592, 960 N.E.2d 356 (2011)). Defendants argue, inter alia, that this negligence claim should be dismissed (i) against the Individual Defendants because they were all employees and cannot be held liable as an employer; and (ii) against Defendant City because its employees were acting in the scope of their employment as police officers. Dkt. No. 77-56 at 28-30. Plaintiff provides no persuasive response. Dkt. No. 85 at 33-34. The Court also notes that Plaintiff offers no evidence regarding any of the Individual Defendants’ “propensity for the conduct which caused the injury,” Ehrens, 385 F.3d at 235 (citation omitted), nor any evidence that Defendant City owed him “a special relationship beyond the duty that is owed to the public generally,” Velez, 730 F.3d at 135. Accordingly, the Court grants the Motion as to Plaintiff's tenth claim. F. Qualified Immunity for the Individual Defendants Defendants argue that (i) the Individual Defendants are entitled to qualified immunity on Plaintiff's false arrest and malicious prosecution claims because of the collective knowledge doctrine and because of “plausible instructions from a superior officer;” (ii) the Individuals Defendants are entitled to qualified immunity on Plaintiff's pre-interrogation detention because the multi-hour detention was “objectively reasonable;” (iii) the Individual Defendants are entitled to qualified immunity because they had arguable probable cause to arrest Plaintiff; and (iv) the Detectives are entitled to qualified immunity with respect to Plaintiff's confession because “there is no evidence that Plaintiff was not of sound mind or so intoxicated as to render his confession involuntary[.]” Dkt. No. 77-56 at 30-38. Defendants do not appear to contend that they are entitled to qualified immunity as to the balance of Plaintiff's fabricated evidence claim. See id. *32 “Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U.S. 73, 78-79, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam) (citation modified). The application of qualified immunity requires the Court to undertake a two-pronged inquiry: whether “(1) ... the official violated a statutory or constitutional right, and (2) ... the right was ‘clearly established’ at the time of the challenged conduct.” Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020) (alterations in original) (quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016)). Under the “clearly established” prong, the law does not require “a case directly on point,” but “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)); see, e.g., Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (“The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right.”); Ricciuti, 124 F.3d at 128, (“The right to be free from arrest or prosecution in the absence of probable cause is a long established constitutional right.”); Weaver v. Brenner, 40 F.3d 527, 533-34 (2d Cir. 1994) (“It is clear that [in 1989] ... a criminal suspect could not lawfully be compelled to be a witness against himself.... It was also clearly established in 1989 that police could not lawfully coerce incriminating statements from an in-custody criminal suspect.”); Zahrey v. Coffey, 221 F.3d 342, 345 (2d Cir. 2000) (“We hold that there is a constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigatory capacity .... [and] that this right was clearly established in 1996[.]”); Morse v. Fusto, 804 F.3d 538, 541 (2d Cir. 2015) (“[T]he actions of the defendants upon which [plaintiff] bases his claims were the knowing creation of false or misleading evidence by a government officer acting in an investigative capacity. We have held that such activity by a government official qualifies as an unconstitutional deprivation of the victim's rights. This right was, moreover, clearly established at the time of Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 45 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 27 the defendants’ conduct.”); Horn v. Adger, Nos. 24-1034, 24-1038, 2025 WL 1618761, at *3 (2d Cir. June 9, 2025) (summary order) (“On appeal, the Detectives do not contest our clearly established caselaw holding that police officers are liable under § 1983 for ‘creat[ing] false information likely to influence a jury's decision and forward[ing] that information to prosecutors.’ ”) (alterations in original) (citation omitted). “Courts have discretion to decide the order in which to engage these two prongs.” Tolan v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (citation omitted). At this stage, the Court need only address the “constitutional violation” prong. As detailed above, whether any Defendant violated Plaintiff's constitutional rights depends on numerous disputed issues of material fact. The parties dispute, for example, when Plaintiff's detention ripened into an arrest, see supra Section IV.A.1; whether the Individual Defendants had probable cause to arrest Plaintiff prior to his interrogation, see supra Section IV.A.2-3.a; the extent of Plaintiff's intoxication during the interrogation, as well as the voluntariness and veracity of his statements, see supra Section IV.A.3.b; and whether the Individual Defendants improperly initiated Plaintiff's prosecution, see supra Section IV.B. Such factual disputes preclude a finding of qualified immunity at this stage. See, e.g., Dufort, 874 F.3d at 343 (“We conclude that the district court's grant of summary judgment as to [plaintiff]’s false arrest and malicious prosecution claims was premature, because disputed questions of material fact remain regarding key aspects of the criminal investigation and subsequent prosecution. We further conclude that those same questions of material fact preclude a grant of qualified immunity at the summary judgment stage.”). The Court reaches the same conclusion with respect to Defendants’ arguments regarding reliance on “plausible instructions” from a superior officer and arguable probable cause. As to the former, the limited record evidence cited by Defendants is insufficient to establish, as a matter of law, that such instructions were given. Dkt. No. 77-55 at 34-35. In any event, as the authority on which Defendants rely makes clear, id. at 35, even if such instructions were given, that does not end the inquiry. See Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir. 2003) (“Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists (e.g.[,] a warrant, probable cause, exigent circumstances).”) (first quoting Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000); additional citations omitted). And the disputed factual record precludes reaching a determination with respect to this inquiry. As to arguable probable cause, the current factual record also precludes summary judgment. See, e.g., Napolitano, 29 F.4th at 105 (“A police officer has arguable probable cause ‘if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.’ ”) (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016)); Jenkins, 478 F.3d at 88 (“[U]nder both New York and federal law, summary judgment dismissing a plaintiff's false arrest claim is appropriate if the undisputed facts indicate that the arresting officer's probable cause determination was objectively reasonable.... If, however, on the undisputed facts the officer would be unreasonable in concluding that probable cause existed, or if the officer's reasonableness depends on material issues of fact, then summary judgment is inappropriate for both New York and federal false arrest claims.”) (first citing Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001); and then citing Dillard v. City of Syracuse, 51 A.D.2d 432, 381 N.Y.S.2d 913, 915 (N.Y. App. Div. 1976)). *33 In sum, the disputed factual record precludes summary judgment based on qualified immunity. See, e.g., Eaton v. Estabrook, 144 F.4th 80, 89 (2d Cir. 2025) (“In the qualified immunity context, ‘[p]re-trial resolution of the defense [of qualified immunity] ... may be thwarted by a factual dispute.’ ... ‘Any disputed questions of material fact —such as the acts of the defendant and their effects on the plaintiff—are to be determined by the factfinder.’ ”) (final alteration added) (first quoting Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir. 1990); and then quoting Walker v. Schult, 45 F.4th 598, 617 (2d Cir. 2022)). Given the current factual record, Defendants have not carried their burden to demonstrate that no rational juror could conclude that they violated Plaintiff's constitutional rights. Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (“Thus, a decision dismissing a claim based on qualified immunity at the summary judgment stage may only be granted when a court finds that an official has met his or her burden demonstrating that no rational jury could conclude ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.’ ”) (quoting al-Kidd, 563 U.S. at 735, 131 S.Ct. 2074). 25 G. John Does 1-100 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 46 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 28 Defendants also argue that because Plaintiff has not amended his Complaint, the Doe Defendants should be dismissed without prejudice. Dkt. No. 77-56 at 30. Plaintiff responds with a single sentence “reassert[ing] his request to amend the complaint to include additional defendants” and no authority in support of such a request. Dkt. No. 85 at 34. Almost two years ago, Magistrate Judge Katz considered and denied Plaintiff's request to amend the Complaint to include two additional defendants. Dkt. No. 64. Since that time, Plaintiff has not sought a review of that decision and has not undertaken any further efforts to amend the Complaint. Plaintiff now offers no authority and no new arguments in support of his cursory request. Plaintiff's renewed request is denied for the reasons set forth by Magistrate Judge Katz, Dkt. No. 64, and all claims against the Doe Defendants are dismissed, see, e.g., Kaczmarek v. City of Schenectady, No. 10-cv-1193, 2013 WL 5506276, at *2 (N.D.N.Y. Oct. 4, 2013) (“Because plaintiffs have failed to timely identify and serve the John Doe defendants, plaintiffs’ claims against both John Doe defendants are dismissed.”). V. CONCLUSION Accordingly, the Court hereby ORDERS that Defendants’ motion for summary judgment, Dkt. No. 77, is GRANTED in part and DENIED in part, as set forth in Section IV of this Memorandum-Decision and Order; and the Court further ORDERS that the Clerk serve a copy of this Memorandum- Decision and Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Slip Copy, 2025 WL 2772081 Footnotes 1 The Complaint incorrectly spells Officer Tolone's last name as “Toltone.” Dkt. No. 77-55 at 1 n.1. Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not the document's internal pagination. 2 This case was reassigned to the undersigned on January 19, 2023. Dkt. No. 34. 3 Unless otherwise indicated, the following facts have been asserted by the parties in their statements of material facts with accurate record citations, and expressly admitted or not denied with a supporting record citation in response. See N.D.N.Y. L.R. 56.1. The Court has also considered the parties’ other submissions and attached exhibits. See generally Dkt. Nos. 77, 85-86, 90. 4 A person with a BAC of 0.08 percent is considered intoxicated per se under New York's Vehicle and Traffic Law (“VTL”). See N.Y. Veh. & Traf. Law § 1192(2); see also Dalmasi v. City of Mount Vernon, No. 13-cv-8672, 2014 WL 6645827, at *1 n.3 (S.D.N.Y. Nov. 24, 2014) (noting that a court may “take judicial notice of the VTL in deciding” summary judgment) (citations omitted). 5 During his deposition, Office Cecile characterized this statement as “police banter.” Dkt. No. 77-47 at 74:13-17 (“Q. So, it's definitely him doesn't mean -- it doesn't mean that you were sure it was him? A. Right. That's police banter. I wasn't sure.”). 6 Officer Russell testified during her deposition that she already knew Plaintiff from “[p]rior incidents,” none involving violence. Dkt. No. 77-46 at 104:16-25. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 47 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 29 7 Seemingly in the early morning of May 7, 2019, Detective Brimmer again tried to speak with Ms. Goldych, who “still seemed too intoxicated” and “could speak a little but was talking about outlandish things not related to this incident.” Dkt. No. 77-19 at 3. When Detective Brimmer spoke with Ms. Goldych a third time, at some point later on May 7, 2019, she “seemed much less intoxicated.” Id. While in that state, Ms. Goldych apparently told Detective Brimmer, inter alia, that she was “drunk[ ] at the time of the incident and does not remember all of the details” and that “she was unaware that Jones had been injured.” Id. Detective Brimmer did not take a written statement from Ms. Goldych. Id.; see also Dkt. No. 77-30 at 2 (non-party detective's report stating that when he subsequently spoke with Ms. Goldych “[i]t should be noted throughout our conversation V. Goldych referred to ‘spiritual incidents’ as well as being visited by ‘higher powers’ on several different occasions. She often had a difficult time organizing her thoughts and at times did not directly answer questions. Based upon her actions and statements her mental health status is unknown to me at this time.”). 8 Dr. Weisman further opined that “[t]o help determine typical reductions in human BAC, clinical services often utilize a declination rate of 0.015% per hour.” Dkt. No. 77-52 at 11. This suggests that Plaintiff had a higher BAC several hours prior, when Detective Brimmer read Plaintiff his Miranda rights. Dkt. No. 77-55 at ¶ 154. Presumably, the corresponding physiological effects identified by Dr. Weisman would have been more severe at that time and during the interrogation. 9 The transcript Defendants provided inaccurately characterizes Plaintiff's statement as “[m]umbles incoherently.” Dkt. No. 77-22 at 105:7. 10 Members of the Onondaga County District Attorney's Office (“DA's Office”) have since identified deficiencies with the process that led to this result. Dkt. No. 85-7 at 1 (“ ‘While it seems counterintuitive that someone would confess to something they did not do, it happens,’ [Onondaga County District Attorney (“DA”) William] Fitzpatrick said. ‘And in this case, I hope all involved analyze the root causes of why this happened. We have done that in my office.’ .... ‘I have discussed the case with the prosecutor initially assigned and pointed out mistakes that were made,’ Fitzpatrick said. ‘The prosecutor who presented it to the grand jury and missed several red flags is no longer with the office.’ ”); Dkt. No. 85-11 at 9 (Syracuse Police Department report stating that, according to Onondaga County Assistant District Attorney (“ADA”) Joe Coolican, “when the grand jury proceeding occurred, there was no identification process done by the Assistant District Attorney overseeing the case. Therefore, the witness [Ms. Bailey] was unaware Mr. Adams was the one who was in custody and accused of these crimes.”). 11 From the record before the Court, it is not clear whether these charges were ever increased. Compare Dkt. No. 77-33, with Dkt. No. 77-38. 12 The Complaint also contains various requests for relief. See, e.g., Dkt. No. 1 at ¶¶ 105-114; Dkt. No. 77-56 at 9 n.2. 13 To the extent that the Complaint states a claim for false arrest prior to this time, any such claim is dismissed as abandoned, as is any claim for declaratory judgment. See Jackson v. Fed. Exp., 766 F.3d 189, 195 (2d Cir. 2014) (“[A] partial response arguing that summary judgment should be denied as to some claims while not mentioning others may be deemed an abandonment of the unmentioned claims.”); see also Dkt. No. 1 at ¶¶ 101-04; Dkt. No. 77-56 at 9 n.2. 14 It also contradicts a position that Defendants took in support of their prior dispositive motion, wherein they argued that Plaintiff's “alleged drunken confession – insofar as it could possibly be construed as ‘false’ – did not result in Plaintiff's loss of liberty as he had already been arrested and confined.” Dkt. No. 7-2 at 16. 15 Defendants do not contend that they had probable cause to arrest Plaintiff for any other offense. Dkt. No. 77-56 at 14. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 48 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 30 16 The parties further agree that the “collective or imputed knowledge doctrine” applies. See, e.g., Dkt. No. 77-56 at 12 (“[T]he relevant inquiry is whether the collective knowledge of the Syracuse Police Department (‘SPD’) constituted probable cause, not whether a specific arresting officer had probable cause.”); Dkt. No. 85 at 14. Under that doctrine, an arrest “is permissible where the actual arresting ... officer lacks the specific information to form the basis for probable cause ... but sufficient information to justify the arrest ... was known by other law enforcement officials initiating ... the investigation” and “the other officers ‘have communicated the information they possess individually, thereby pooling their collective knowledge to meet the probable cause threshold.’ ” Brown v. City of New York, 798 F.3d 94, 99 (2d Cir. 2015) (alterations in original) (first quoting Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007); and then quoting United States v. Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008)). 17 Defendants do not dispute that Miranda warnings were necessary. See id.; Jackson v. Conway, 763 F.3d 115, 136 (2d Cir. 2014) (“The Miranda safeguards apply only to ‘custodial interrogations.’ ”). 18 Defendants’ argument that no Individual Defendants was personally involved in all of the events resulting in Plaintiff's arrest and monthslong detention is unpersuasive. Dkt. No. 77-56 at 13, 21 n.6. As detailed above, Plaintiff has sufficiently established the personal involvement of every Individual Defendant in the events giving rise to his false arrest claims. See, e.g., Legree v. City of Waterbury, No. 22-cv-00659, 2024 WL 3964944, at *7 (D. Conn. Aug. 28, 2024) (“However, ‘personal involvement’ in an arrest is not limited to officers who were physically involved in taking someone into custody. Courts in this Circuit have upheld false arrest liability for non-arresting officers.”) (collecting cases). 19 Each report was affirmed under penalty of perjury. See, e.g., Dkt. No. 77-19 at 2-3; Dkt. No. 77-6 at 5; Dkt. No. 77-8 at 2; Dkt. No. 77-7 at 2. 20 Defendants contend that Officer Russell was “unaware of the fact” that Ms. Bailey was still on the scene when Officer Russell arrived. Dkt. No. 77-56 at 14. This assertion is contradicted by Officer Russell's BWC footage. See Dkt. No. 77-16 at 0:01 (Officer Russell responding to Ms. Bailey's statement that “he got into a fight with somebody, the other dude ran off, but he got knocked out” with “the other dude knocked out?”); id. at 11:27 (Officer Russell stating “I wish we would have got those people that were ...” and gesturing towards the sidewalk in the direction Ms. Bailey and her siblings had walked); id. at 17:21 (Officer Russell stating “did anyone contact those people back,” presumably again in reference to Ms. Bailey and her siblings). 21 To the extent that the Complaint states a distinct claim for malicious prosecution against Defendant City individually, or pursuant to New York law, any such clam is dismissed as abandoned. Compare Dkt. No. 77-56 at 22 & n.7, 24, with Dkt. No. 85 at 23-30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell claim against Defendant City is addressed further below. See infra Section IV.D. 22 To the extent that the Complaint states a distinct claim for fabricated evidence against Defendant City individually, any such clam is dismissed as abandoned. Compare Dkt. No. 77-56 at 26, with Dkt. No. 85 at 30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell claim against Defendant City is addressed next. See infra Section IV.D. 23 This portion of the Report makes clear that Detective Brimmer was subsequently promoted to Detective Sergeant, a position in which he supervises other detectives. See also Dkt. No. 77-49 at 12:20-13:1. 24 It is unclear from the current record how this limitation operates in practice, given that alcohol is a depressant while “[m]ania is a condition in which you have a period of abnormally elevated, extreme changes in your mood or emotions, energy level or activity level. This highly energized level of physical and mental activity and behavior must be a change from your usual self and be noticeable by others.” Mania, CLEVELAND CLINIC, Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 49 of 240
Adams v. City of Syracuse, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 31 https://my.clevelandclinic.org/health/diseases/21603-mania (last visited September 29, 2025). Neither the Report nor the Motion identify the referenced caselaw. See generally Dkt. Nos. 77, 85-11, 90. 25 Because factual disputes preclude summary judgment on the first prong of the qualified immunity inquiry, the Court makes no determination as to the second prong, as noted earlier. Id. at 219-220; see also Linton v. Zorn, 135 F.4th 19, 32 (2d Cir. 2025) (“But under either prong, courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.”) (quoting Tolan, 572 U.S. at 656, 134 S.Ct. 1861). For similar reasons, the Court also does not address the parties’ competing expert reports. Dkt. Nos. 77-53, 77-54, 85-14. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 50 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2009 WL 385413 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Anthony D. AMAKER, Plaintiff, v. T. KELLEY, J. Landry, P.T. Justine, O. Mayo, T.G. Egan, D.A. Senkowski, M. Allard, R. Girdich, G.S. Goord, J. Wood, Doctor I. Ellen, J. Mitchell, H. Worley, Doctor L.N. Wright, S. Nye, M. McKinnon, M. Rivers, L. Coryer, A. Pavone, L. Cayea, D. Armitage, J. Carey, P.W. Annetts, R. Rivers, E. Aiken, S.Gideon, R. Lincoln, D. Linsley, C.O. Gordon, J. Reyell, D. Champagne, J. Kelsh, W. Carter, F. Bushey, Cho Phillip, Cho Drom, A.J. Annucci, L.J. Leclair, D. Laclair, T.L. Ricks, A. Boucaud, H. Perry, B. Baniler, R. Lamora, E. Liberty, G. Ronsom, R. Maynard, C. Daggett, D. Selksky, K.M. Lapp, R. Sears, J. Babbie, Sgt. Champagne, Doctor K. Lee, R. Vaughan, and M. Nisoff, 1 Defendants. No. 9:01–CV–877 (FJS/DEP). | Feb. 9, 2009. Attorneys and Law Firms Anthony D. Amaker, Wallkill, NY, pro se. Hon. Andrew M. Cuomo, Office of the Attorney General State of New York, David B. Roberts, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants. ORDER SCULLIN, Senior District Judge. *1 In a Report and Recommendation dated September 9, 2008, Magistrate Judge Peebles recommended that this Court grant Defendants' motion for summary judgment on all claims and that the Court deny Defendant Rivera's motion to dismiss as moot. See Dkt. No. 249. Plaintiff filed objections to those recommendations. See Dkt. No. 251. Plaintiff makes two objections that have nothing to do with the merits of his claims,. He objects to the fact that Magistrate Judge Peebles did not attach unpublished cases cited in the Report and Recommendation to it and to the recommendation that the Court dismiss Defendants who have not answered or otherwise opposed the complaint. See id. 1–2. Plaintiff also objects, generally, to the application of preclusion and other legal doctrines to his claims. Plaintiff's remaining objections, for the most part, are not actually objections, but consist of further legal argument regarding his claims. See id. at 2–6. The Court's review of Magistrate Judge Peebles' Report and Recommendation, in light of Plaintiff's objections, demonstrates that Magistrate Judge Peebles correctly applied the appropriate law and that Plaintiff's objections are without merit. 2 Therefore, after carefully considering Magistrate Judge Peebles' Report and Recommendation, Plaintiff's objections thereto, as well as the applicable law, and for the reasons stated herein and in Magistrate Judge Peebles' Report and Recommendation, the Court hereby ORDERS that Magistrate Judge Peebles' September 9, 2008 Report and Recommendation is ADOPTED in its entirety; and the Court further ORDERS that Defendants' motion for summary judgment is GRANTED; and the Court further ORDERS that Defendant Rivera's motion to dismiss is DENIED as moot; and the Court further ORDERS that the Clerk of the Court shall enter judgment for Defendants and close this case. IT IS SO ORDERED. REPORT AND RECOMMENDATION DAVID E. PEEBLES, United States Magistrate Judge. Plaintiff Anthony D. Amaker, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983, claiming deprivation of his civil rights. Plaintiff's complaint, as amended, contains an amalgamation of claims based upon a series of events alleged to have occurred at the two correctional facilities in which he was housed during the relevant period, naming in excess of fifty individuals as well as the New York State Senate and Assembly as defendants, and seeking both injunctive and monetary relief. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 51 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Currently pending before the court are two motions brought by the defendants. In the first, defendants seek the entry of summary judgment dismissing plaintiff's claims on a variety of grounds, principally on the merits, though additionally urging their entitlement to qualified immunity from suit. One of the named defendants, Rafael Rivera, a corrections officer, has additionally moved requesting dismissal of plaintiff's claims against him for failure to state a claim upon which relief may be granted, arguing that plaintiff's allegations are facially insufficient to support a cognizable claim against him. For the reasons set forth below I recommend that defendants' summary judgment motion be granted, and in light of that recommendation find it unnecessary to address defendant Rivera's separate motion. I. BACKGROUND *2 Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services (the “DOCS”). Amended Complaint (Dkt. No. 78) ¶ 3. Plaintiff's incarceration results from a 1989 conviction for murder in the second degree, for which he was sentenced to a period of imprisonment of between twenty-five years and life. Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 229–2) ¶ 1. At the times relevant to his claims plaintiff was designated initially to the Clinton Correctional Facility (“Clinton”), where he was housed beginning in June of 1998, and later the Upstate Correctional Facility (“Upstate”), into which he was transferred on or about October 31, 2001. 1 Amended Complaint (Dkt. No. 78) ¶¶ 3, 5, 21. In his amended complaint plaintiff has interposed a wide range of claims, many of which are unrelated and some of which, as will be seen, were included in a subsequent action brought by the plaintiff in this court, based upon events occurring at Clinton, and later at Upstate, between June, 1998 and January of 2002. One of the more prominent claims now asserted by the plaintiff concerns efforts by DOCS authorities to obtain a Deoxyribonucleic Acid (“DNA”) sample from him as authorized under New York's DNA Indexing Statute, N.Y. Executive Law Art. 49–B, as well as disciplinary action taken by prison officials based upon his refusal to comply with that request. Plaintiff also alleges, inter alia, that defendants were deliberately indifferent to his serious medical needs, and that he was 1) exposed to inhumane conditions of confinement; 2) denied meaningful access to the law library facilities and deprived of court papers; 3) retaliated against for exercising his right to file grievances and seek other forms of redress; 4) subjected to unlawful racial discrimination and cell searches; and 5) unlawfully required to pay for food and spices required to enjoy meals consonant with his religious beliefs. 2 II. PROCEDURAL HISTORY Plaintiff commenced this action on June 1, 2001, Dkt. No. 1, and on June 6, 2002 filed a second amended complaint— the operative pleading currently before the court. 3 Dkt. No. 78. In his amended complaint, plaintiff asserts a variety of constitutional and statutory claims against fifty-five named defendants, including the Commissioner of the DOCS and many of the agency's employees. 4 Id. Since its inception some seven years ago, this case has developed a tortured procedural history which has included the filing of more than one motion for interim injunctive relief and various interlocutory appeals, all of which have been dismissed. Now that discovery has been completed, by motion filed on February 13, 2007 defendants have moved for summary judgment dismissing plaintiff's claims on a variety of grounds. Dkt. No. 229. In addition, Corrections Officer R. Rivera, a named defendant who has yet to answer plaintiff's complaint, has also moved seeking dismissal of plaintiff's claims against him pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted as against him. Dkt. No. 237. Plaintiff has since responded to defendants' summary judgment motion by the filing on May 25, 2007 of a memorandum, affidavit, and various other materials, Dkt. No. 240, but has not opposed defendant Rivera's dismissal motion. 5 *3 Defendants' motions, which are now ripe for determination, have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) (1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b). III. DISCUSSION A. Standards of Review 1. Dismissal Motion Standard A motion to dismiss a complaint, brought pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which is particularly Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 52 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 unexacting in its requirements. Rule 8 of the Federal Rules of Civil Procedure requires only that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Absent applicability of a heightened pleading requirement such as that imposed under Rule 9, a plaintiff is not required to plead specific factual allegations to support the claim; rather, “the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ “ Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (other quotations omitted)); cf. Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d Cir.2007) (acknowledging that a plaintiff may properly be required to illuminate a claim with some factual allegations in those contexts where amplification is necessary to establish that the claim is “plausible”). Once the claim has been stated adequately, a plaintiff may present any set of facts consistent with the allegations contained in the complaint to support his or her claim. Twombly, 127 S.Ct. at 1969 (observing that the Court's prior decision in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957), “described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival”). In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true, and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1722, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v. Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y.2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, “ ‘but whether the claimant is entitled to offer evidence to support the claims.’ “ Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F.Supp.2d 435, 441 (S.D.N.Y.2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (other quotations omitted)). Accordingly, a complaint should be dismissed on a motion brought pursuant to Rule 12(b)(6) only where the plaintiff has failed to provide some basis for the allegations that support the elements of his or her claim. See Twombly, 127 S.Ct. at 1969, 1974; see also Patane v. Clark, 508 F.3d 106, 111–12 (2d Cir.2007) (“In order to withstand a motion to dismiss, a complaint must plead ‘enough facts to state a claim for relief that is plausible on its face.’ ”) (quoting Twombly ). “While Twombly does not require heightened fact pleading of specifics, it does require enough facts to ‘nudge [plaintiffs'] claims across the line from conceivable to plausible.’ “ In re Elevator Antitrust Litig., 502 F.3d 47, 50 (3d Cir.2007) (quoting Twombly, 127 S.Ct. at 1974). *4 When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 127 S.Ct. at 2200 (“ ‘[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ”) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976) (internal quotations omitted)); Davis v. Goord, 320 F.3d 346, 350 (2d Cir.2003) (citation omitted); Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y.2004) (Hurd, J.). In the event of a perceived deficiency in a pro se plaintiff's complaint, a court should not dismiss without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704–05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) (leave to amend “shall be freely given when justice so requires”). 2. Summary Judgment Standard Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509–10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir.2004). A fact is “material”, for purposes of this inquiry, if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson ). A material fact is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620–21 (2d Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 53 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process). When the entry of summary judgment is sought, the moving party bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. *5 When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137–38 (2d Cir.1998). Summary judgment is inappropriate where “review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when “there can be but one reasonable conclusion as to the verdict”). B. DNA Testing In or about September of 2001, prison officials at Upstate initiated efforts to obtain a DNA sample from the plaintiff. Amended Complaint (Dkt. No. 78) ¶ ¶ 18–19. Plaintiff's refusal to cooperate with those efforts led to the issuance by Corrections Sergeant Cayea of a misbehavior report charging Amaker with failing to obey an order. Id.; see also Mans Aff. (Dkt. No. 229–14) Exh. B. A Tier II hearing was convened to address the charges lodged in the misbehavior report, resulting in a finding of guilt and the imposition of a penalty which included thirty days of keeplock confinement, with a corresponding loss of privileges. 6 , 7 Id. On October 10, 2001 plaintiff was again directed to provide a DNA sample, but similarly refused to honor the request. Amended Complaint (Dkt. No. 78) ¶ 20. A second misbehavior report was issued to Amaker as a result of that failure to comply with the directive of prison staff, resulting in a finding of guilt, following a Tier III hearing, and the imposition of a penalty which included six months of disciplinary confinement in a special housing unit (“SHU”), again with a corresponding loss of privileges. 8 Id.; see also Mans Aff. (Dkt. No. 229–14) Exh. C. On December 26, 2001 the DOCS Deputy Commissioner for Correctional Facilities, Lucien J. LeClaire, Jr., wrote to the plaintiff to inform him that in the event of an inmate's refusal to provide requested DNA samples corrections officials were authorized to obtain the required sample through the use of reasonable force, and that “appropriate additional disciplinary sanctions” could be imposed, further noting that upon investigation into the matter, apparently based upon a complaint lodged by the plaintiff, it was determined that in the course of their dealings with him corrections staff had “acted appropriately and in accordance with policies and procedures set by the [DOCS] governing DNA testing.” Amended Complaint (Dkt. No. 78) Exh. A–5; see also Mans Aff. (Dkt. No. 229–14) Exh. D. Despite that letter, Amaker persisted in his refusal to provide the required DNA sample, leading to further disciplinary action against him. 9 Amended Complaint (Dkt. No. 78) ¶¶ 23–26. Among the claims interposed by the plaintiff in his second amended complaint are those surrounding the requirement that he provide a DNA sample pursuant to New York's Statutory DNA database regime and the imposition of the discipline based upon his repeated refusals to comply with directives to that effect. In asserting those claims plaintiff does not chart a new path, but instead raises claims similar to those which have previously been raised by him and other fellow inmates, and uniformly rejected by the courts. *6 On the heels of the decision by the New York Court of Appeals in People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994) holding, inter alia, that DNA evidence is admissible in a criminal trial, the New York Legislature enacted a series of provisions aimed at the creation of a DNA databank. Zarie v. Beringer, No. Civ. 9:01–CV–1865, 2003 WL 57918, at *3 (N.D.N.Y. Jan. 7, 2003) (Sharpe, M.J.). Among those was a statute authorizing the gathering of DNA samples from individuals convicted of certain offenses after January 1, 1996. See 1994 N.Y. Laws, ch. 737, §§ 1, 3; see also Nicholas v. Goord, 430 F.3d 652, 654 n. 1 (2d Cir.2005). In 1999 that provision was amended to apply to any person convicted of certain prescribed offenses, including murder, prior to the statute's effective date, provided that at the time of amendment he or she was still serving a prison sentence imposed in connection with the earlier offense. 1999 N.Y. Laws, ch 560, § 9; see Nicholas, 430 F.3d at 654 n. 1. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 54 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Since its enactment New York's DNA indexing provision, like similar provisions from other jurisdictions, has withstood various challenges, including to its constitutionality. See, e.g., United States v. Amerson, 483 F.3d 73, 75 (2d Cir.2007); Nicholas, 430 F.3d at 672. In response to one such challenge, the Second Circuit has held that the DNA indexing provision is lawful, concluding that special needs of the state giving rise to enactment of the statute trump the relatively minimal privacy interests and intrusion associated with a DNA sampling requirement. Nicholas, 430 F.3d at 671–72; see also Roe v. Marcotte, 193 F.3d 72, 78–80 (2d Cir.1999) (upholding a Connecticut DNA indexing statute substantially similar to New York's DNA provisions). The basis for plaintiff's challenge in this case to the constitutionality of the DNA collection requirement is not entirely clear from his amended complaint and motion opposition papers. This uncertainty is of no moment, however, since the validity of New York's DNA indexing statute has been upheld by courts, including in this circuit, “over almost every conceivable constitutional challenge.” Jackson v. Ricks, No. 9:02–CV–00773, 2006 WL 2023570, at *23 (N.D.N.Y. July 18, 2006) (Sharpe, D.J. and Lowe, M.J .) (collecting cases); see also Doe v. Moore, 410 F.3d 1337, 1349–50 (11th Cir.2005) (upholding Florida's sex offender DNA collection statute in the face of equal protection and due process challenges). In challenging New York's DNA enactment plaintiff appears to be crafting an argument which is based upon alleged non- compliance with its statutory empowering provisions, under which the Division of Criminal Justice Services (“DCJS”) is tasked with establishing the required notification procedures. That argument, however, appears to present questions of compliance with state law and regulation which are not cognizable under section 1983. See Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir.1985). *7 Regardless of the nature of his challenge to New York's indexing provision, Amaker is now precluded from pursuing that claim by virtue of a prior decision from this court addressing a similar challenge by him. Among the claims which he raised in Amaker II were those addressed to the efforts of DOCS employees, including corrections officials at Upstate, to collect a DNA sample from him. Plaintiff's challenge in that action to the constitutionality of New York's DNA indexing provisions was resolved against him based upon the issuance on November 30, 2007 of a report and recommendation by United States Magistrate Judge David R. Homer, and approval of that report, in pertinent part, by Chief Judge Norman A. Mordue on July 10, 2008. See Amaker II, Dkt. Nos. 160, 167. Since the arguments now asserted in connection with the DNA challenge were or could have been raised by Amaker in his prior action, he is precluded from now relitigating those claims. See Akhenaten v. Najee, LLC, 544 F.Supp.2d 320, 327–28 (S.D.N.Y.2008). Accordingly, the portion of plaintiff's amended complaint which challenges the testing requirements under the DNA identification indexing law lacks merit, and is subject to dismissal. C. The Torture Victim Protection Act of 1991 Among the claims set forth in plaintiff's complaint, as amended, is a cause of action under the Torture Victim Protection Act of 1991, (the “TVPA”), Pub.L. No. 102–256, 106 S. Stat. 73 (1992), based upon defendants' actions toward him. Amended Complaint (Dkt. No. 78) ¶¶ 28, 34, 36. In their motion, defendants also seek summary dismissal of this claim, as a matter of law. The TVPA provides, in relevant part, that [a]n individual who, under actual or apparent authority, or color of law, of any foreign nation (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; ... Pub.L. No. 105–256, § 2(a), 106 Stat. at 73 (emphasis added). As can be seen, by its express terms the TVPA applies only to those who act under the authority of a foreign nation. See In re: Agent Orange Product Liability Litig., 373 F.Supp.2d 7, 110–13 (E.D.N.Y.2005); see also Arar v. Ashcroft, 414 F.Supp.2d 250, 264 (E.D.N.Y.2006), aff'd, 532 F.3d 157 (2d Cir.2008). Since Amaker plainly cannot meet this requirement, his cause of action under the TVPA is deficient as a matter of law, and thus subject to dismissal. D. Property Loss Although the portion of his complaint in which he summarizes his claims does not reference such a cause Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 55 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 of action, elsewhere in that pleading Amaker alleges that certain of his property was withheld by defendants Perry and Baniler, and later destroyed by defendant LaClair. 10 Amended Complaint (Dkt. No. 78) ¶ 21. Defendants also seek dismissal of this potential claim as being without merit. It is well-settled that no constitutionally cognizable cause of action exists for the destruction or loss of a prison inmate's property, provided that an adequate remedy is afforded by the state courts for such deprivation. Griffin v. Komenecky, No. 95–CV–796, 1997 WL 204313, at *2 (N.D.N.Y. Apr. 14, 1997) (Scullin, J.). In this instance, plaintiff was entitled to avail himself of the mechanism prescribed under section nine of the New York Court of Claims Act to redress his loss of property claim. See id.; see also Brooks v. Chappius, 450 F.Supp.2d 220, 226–27 (W.D.N.Y.2006). Accordingly, plaintiff's loss of property cause of action is without merit, and subject to dismissal as a matter of law. See Brooks, 450 F.Supp.2d at 227. E. Eleventh Amendment/Sovereign Immunity *8 Plaintiff's claims in this action are brought against the various named defendants, both as individuals and in their official capacities. See, e.g., Amended Complaint (Dkt. No. 78) ¶ 1. Noting that plaintiff's claims against the defendants in their official capacities are tantamount to those against the State, defendants seek their dismissal. The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057–58 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends both to state agencies, and in favor of state officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the state as the real party in interest. 11 Richards v. State of New York Appellate Division, Second Dep't, 597 F.Supp. 689, 691 (E.D.N.Y.1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89–91, 102 S.Ct. 2325, 2328–29 (1982)). “To the extent that a state official is sued for damages in his official capacity ... the official is entitled to invoke the Eleventh Amendment immunity belonging to the state.” 12 Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361 (1991); Kentucky v. Graham, 473 U.S. 159, 166–67, 105 S.Ct. 3099, 3105 (1985). Since plaintiff's damage claims against the named defendants in their official capacities are in reality claims against the State of New York, thus exemplifying those against which the Eleventh Amendment protects, they are subject to dismissal. Daisernia v. State of New York, 582 F.Supp. 792, 798– 99 (N.D.N.Y.1984) (McCurn, J.). I therefore recommend that this portion of defendants' motion be granted, and that plaintiff's damage claim against the defendants in their capacities as state officials be dismissed. F. Plaintiff's Court Access Claims Scattered intermittently throughout plaintiff's complaint are allegations that through their actions defendants denied him access to the courts, in violation of his rights under the First Amendment. Plaintiff's court access denial claims are based principally upon his contention that prison law library facilities available to him were inadequate, and additionally that through their actions corrections workers precluded him from accessing those materials. See Amended Complaint (Dkt. No. 78) ¶¶ 7, 16, 32. Defendants seek dismissal of those claims based principally upon plaintiff's failure to demonstrate the existence of any injury or prejudice experienced as a result of their actions. An inmate's constitutional right to “meaningful” access to the courts is well-recognized and firmly established. Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495 (1977) (citations and internal quotation marks omitted). Although in Bounds the Supreme Court held that this right of access requires prison authorities “to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law[,]” id. at 828, 97 S.Ct. at 1498, the Court later clarified that *9 prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts. Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 56 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 law library or legal assistance program is subpar in some theoretical sense. Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180 (1996) (internal quotations and citations omitted). Instead, an inmate “must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Id. In other words, to establish a violation of the right of access to the courts, a plaintiff must demonstrate that defendants' interference caused him or her actual injury—that is, that a “nonfrivolous legal claim had been frustrated or was being impeded” as a result of defendants' conduct. 13 Id. at 353, 116 S.Ct. at 2181. In support of his court access claim plaintiff maintains that he was denied law library access between January 2, 2001 and January 18, 2001, and again from the filing of a second grievance related to library access on February 26, 2001 until March 5, 2001. Amended Complaint (Dkt. No. 78) ¶ 16. Plaintiff contends that this lack of access effectively precluded him from filing a motion to compel—presumably related to discovery—in a pending federal court action. 14 Id. Plaintiff's library access claims are addressed in a declaration given by Michael McKinnon, the DOCS employee charged with oversight of the law library at Clinton. See McKinnon Decl. (Dkt. No. 229–4) ¶¶ 1–2. In that declaration McKinnon describes the law library facilities and procedures at Clinton, including the established protocol for requesting library access. Id. ¶¶ 2–3. McKinnon notes that despite plaintiff's allegations to the contrary, see Amended Complaint (Dkt. No. 78) ¶ 7, he never denied library services to the plaintiff or any other inmate when faced with a court imposed deadline. Id. ¶ 6. McKinnon also notes that over the four month period during which the plaintiff could have commenced a proceeding under New York Civil Practice Law and Rules Article 78 to challenge the disciplinary action initiated in June of 1998, one of the potential legal proceedings for which he could have requested access to library facilities, he was granted library access on seven occasions during July, eleven times in August, five times in September and on six occasions in October of 1998, and that in the following months he was permitted use of the library facilities on approximately ten days in November of 1998 and nine times in December of that year. Id. ¶ 6. According to that declaration, records at Clinton also show that between June of 1999 and September, 2001, plaintiff was scheduled for more than four hundred library call outs, and was granted special access status on February 24, 2001 in light of an impending March 26, 2001 court deadline. Id. ¶ 9. *10 The existence of prejudice is an essential element of a First Amendment court access denial claim. Lewis, 518 U.S. at 353, 116 S.Ct. at 2181. It is true that in his amended complaint plaintiff does claim, although in general and conclusory terms, that he was prejudiced by defendants' actions, allegedly having missed a court ordered deadline on more than one occasion, causing adverse consequences in connection with his legal actions. See, e.g., Amended Complaint (Dkt. No. 78) ¶¶ 16, 32. Faced with defendants' motion raising lack of prejudice, however, plaintiff has failed to offer any specifics regarding those claims and to adduce proof from which a reasonable factfinder could conclude that he did indeed experience prejudice by virtue of defendants' failure to provide him with library access, and to mail court documents, leaving instead only his conclusory allegations without underlying evidentiary support. In sum, the record now before the court neither supports plaintiff's claim that he was denied access to adequate library facilities while at Clinton, nor does it establish the existence of prejudice suffered as a result of any such deprivation, if indeed it did occur. Accordingly, I recommend dismissal of plaintiff's court access claims as a matter of law. G. Plaintiff's RICO Cause of Action In broad and conclusory terms devoid of specifics, plaintiff alleges that various of the defendants named in the action have violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Amended Complaint (Dkt. No. 78) ¶¶ 26, 35. Plaintiff's RICO claim appears to be predicated upon an alleged mail fraud scheme engaged in by corrections workers and “approved by Comm. Goord, Supt. Senkowski” to steal inmate mail, and includes his request that the court refer the matter to the United States Attorney for prosecution. Id. at ¶¶ 26, 35, 39. Interpreting plaintiff's complaint as seeking criminal prosecution for the alleged violation, and noting that the prerequisite for establishing a claim under that provision cannot be met in this instance, defendants seek dismissal of plaintiff's RICO claim. Despite his submission of comprehensive materials in opposition to defendants' motion, including a thirty-eight page affidavit and a twenty-one page memorandum of law, plaintiff does not address this portion of defendants' motion. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 57 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 The substantive prohibitions under RICO are set forth principally in 18 U.S.C. § 1962(a)-(c); subdivision (d) of that provision prohibits parties from conspiring to violate one or more of those substantive provisions. In relevant part, section 1962 provides that [i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. *11 18 U.S.C. § 1962(c); see Salinas v. United States, 522 U.S. 52, 62, 118 S.Ct. 469, 476 (1997). In addition to providing for potential criminal prosecution, RICO also affords a civil right of action for violation of its provisions, authorizing recovery of treble damages as well as costs of the action, including reasonable attorneys' fees, in the event of an established violation 18 U.S.C. § 1964(c). See Klehr v. A.O. Smith Corp., 521 U.S. 179, 183, 117 S.Ct. 1984, 1987–88 (1997). To plead a cognizable civil RICO claim, a party must allege “(1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity,” as well as “injury to business or property as a result of the RICO violation.” Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 88 (2d Cir.1999). The pleading of a civil RICO violation is subject to the heightened requirement that its supporting allegations must be pleaded with particularity. See Fed.R.Civ.P. 9(b); see also Anatian, 193 F.3d at 88–89. Additionally, the court's local rules require that when a civil RICO claim is asserted before this court, a RICO statement containing certain specified information must be filed by the party raising the claim. N.D.N.Y.L.R. 9.2. A review of the record in this case reveals that neither of these critical requirements has been met, thereby providing a threshold basis for dismissal of plaintiff's RICO claim. See Spoto v. Herkimer County Trust, No. 99– CV–1476, 2000 WL 533293, at *3 n. 2 (N.D.N.Y. Apr. 27, 2000) (Munson, J.). Turning to the merits, it is clear that the record falls considerably short of establishing a basis upon which a reasonable factfinder could conclude that the requisite elements of a RICO claim have been established. While plaintiff alleges in conclusory fashion the existence of mail fraud at the prison facilities in which he was housed, and mail fraud potentially qualifies as racketeering activity, see Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 454, 125 S.Ct. 1991, 1995 (2006), the record fails to disclose the existence of a conspiracy of two or more persons, lacks evidence of two or more acts constituting a pattern of racketeering activity, does not identify the relevant “enterprise”, fails to demonstrate how the conspirators, through the pattern of racketeering activity, conducted the enterprise, and alleges no injury to business or property resulting from defendants' actions. See Amended Complaint (Dkt. No. 78) ¶¶ 26, 35. Since the record fails to disclose evidence from which a reasonable factfinder in this case could conclude that the requisite elements to sustain a civil RICO claim have been met, I recommend dismissal of that cause of action on the merits. 15 H. Deliberate Medical Indifference One of the central themes presented in plaintiff's prolix, narrative-styled amended complaint is his claim that certain of the defendants have failed to properly treat his various medical conditions, many of which are not specified with any degree of particularity. Defendants contend that based upon the record now before the court they are entitled to dismissal of that claim as a matter of law, arguing that plaintiff neither suffers from a serious medical need, nor were the named defendants subjectively and deliberately indifferent to any such need. *12 The Eighth Amendment's prohibition of cruel and unusual punishment encompasses punishments that involve the “unnecessary and wanton infliction of pain” and are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Estelle ). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 58 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement—the conditions must be “sufficiently serious” from an objective point of view, and the plaintiff must demonstrate that prison officials acted subjectively with “deliberate indifference.” See Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (citing Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 (1991)); Waldo v. Goord, No. 97–CV–1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M .J.); see also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321. Deliberate indifference exists if an official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1978; Leach, 103 F.Supp.2d at 546 (citing Farmer ); Waldo, 1998 WL 713809, at *2 (same). In order to state a medical indifference claim under the Eighth Amendment, a plaintiff must allege a deprivation involving a medical need which is, in objective terms, “ ‘sufficiently serious' “. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (citing Wilson, 501 U.S. at 298, 111 S.Ct. at 2324), cert. denied sub nom., Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108 (1995). A medical need is serious for constitutional purposes if it presents “ ‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain’.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (citations omitted). A serious medical need can also exist where “ ‘failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain’ “; since medical conditions vary in severity, a decision to leave a condition untreated may or may not be unconstitutional, depending on the facts. Harrison v. Barkley, 219 F.3d 132, 136–37 (2d Cir.2000) (quoting, inter alia, Chance ). Relevant factors in making this determination include injury that a “ ‘reasonable doctor or patient would find important and worthy of comment or treatment’ “, a condition that “ ‘significantly affects' “ a prisoner's daily activities, or causes “ ‘chronic and substantial pain.’ “ Chance, 43 F.3d at 701 (citation omitted); LaFave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *2–3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.). *13 Deliberate indifference, in a constitutional sense, exists if an official knows of and disregards an excessive risk to inmate health or safety; the official must “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Leach, 103 F.Supp.2d at 546 (citing Farmer ); Waldo, 1998 WL 713809, at *2 (same). It is well-established, however, that mere disagreement with a prescribed course of treatment, or even a claim that negligence or medical malpractice has occurred, does not provide a basis to find a violation of the Eighth Amendment. Estelle, 429 U.S. at 105–06, 97 S.Ct. at 201–02; Chance, 143 F.3d at 703; Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040, 113 S.Ct. 828 (1992). The question of what diagnostic techniques and treatments should be administered to an inmate is a “classic example of a matter for medical judgment”; accordingly, prison medical personnel are vested with broad discretion to determine what method of care and treatment to provide to their patients. Estelle, 429 U.S. at 107, 97 S.Ct. at 293; Chance, 143 F.3d at 703; Rosales v. Coughlin, 10 F.Supp.2d 261, 264 (W.D.N.Y.1998). Plaintiff's medical indifference claims, while referenced elsewhere, are summarized in paragraph twenty-seven of his amended complaint, and augmented in considerably greater detail in his summary judgment submissions including, notably, his affidavit. Plaintiff's medical concerns appear to center upon disagreement over the course of defendants' treatment of his diminished eyesight; chronic back pain, diagnosed as degenerative disc disease; and pain, “clicking and popping” in his knee. Amended Complaint (Dkt. No. 78) ¶¶ 12, 27. Generally speaking, plaintiff's medical indifference claim recites a litany of instances in which plaintiff did not receive desired medication, medical equipment, physical therapy, or treatment for his conditions. 16 See Amended Complaint (Dkt. No. 78) ¶ 27. 1. Serious Medical Needs In their motion, defendants maintain that none of the conditions upon which plaintiff's medical indifference claims are predicated rise to a level of constitutional significance. In Amaker II the court found that plaintiff's claims regarding his vision and delay in eye treatment did not establish the existence of a serious medical need or injury. See Report and Recommendation in Amaker II (Dkt. No. 160) at pp. 15– 16 and Memorandum–Decision and Order (Dkt. No. 167) at pp. 3, 6. Similarly, the Amaker II court concluded that in complaining regarding the treatment of his knee, including denial of magnetic resonance imaging (“MRI”) testing and knee braces, plaintiff also failed to make the threshold requirement of establishing a serious physical injury or need. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 59 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 Id . at 16–17. Likewise, while noting a division among the courts regarding this issue, the court in that case nonetheless concluded that plaintiff's claim of abdominal pain, as drafted, did not successfully present a material issue of fact regarding serious medical need. Id. at 17. *14 Having carefully reviewed the record now presented, like the court in Amaker II I doubt plaintiff's ability to establish, at trial, the existence of a serious medical condition of constitutional significance to which the defendants were deliberately indifferent. Because I find that Amaker cannot establish indifference on the part of defendants to any of his medical needs, regardless of whether they were sufficiently serious to trigger protections of the Eighth Amendment, and defendants do not appear to press the issue, I nonetheless find it unnecessary to address the sufficiency of plaintiff's allegations in this regard. 2. Deliberate Indifference Turning to the subjective element of the deliberate indifference inquiry I find, as did the court in Amaker II, that rather than disclosing any indifference on the part of prison medical officials to plaintiff's medical needs, the record instead reflects a comprehensive and at times intense pattern of treatment for plaintiff's various medical conditions which, though plainly not to his complete liking, easily fulfills constitutionally mandated minimal requirements. Plaintiff's medical indifference claim appears to relate to treatment received at both of the correctional facilities at issue in this case, although the vast majority of those allegations relate to his complaints regarding medical attention received while at Clinton. To the extent that plaintiff's claims involve the sufficiency of medical treatment administered at Upstate, similar claims were carefully reviewed by the court in Amaker II, resulting in a finding that the defendants were not deliberately indifferent to his serious medical needs during the time of his incarceration at Upstate. See Report and Recommendation in Amaker II (Dkt. No. 160) at pp. 15–17. That determination is dispositive of the portion of plaintiff's medical indifference claim in this action related to his medical care at Upstate. 17 See Akhenaten, 544 F.Supp.2d at 327–28. Turning to plaintiff's medical treatment while at Clinton, medical records of plaintiff's care at that facility reflect that between June 8, 1999 and December 1, 1999—the period covered by his complaints regarding medical care at Clinton —he was seen on approximately one hundred occasions regarding complaints concerning his back, knee, and neck pain, chronic headaches, and various other symptoms by an array of health care providers which included prison doctors, outside specialists, physician assistants, therapists and nurses. See Mans Aff. (Dkt. No. 229–14) Exh. A (filed under seal); see also Johnson Decl. (Dkt. No. 229–3) ¶ 7. During that time plaintiff was provided with medical examinations, consultations, physical therapy, knee braces and supports, and various medications, and additionally was the subject of x- rays and magnetic resonance imaging (“MRI”) testing. Id. One of the conditions of which plaintiff complains relates to chronic back pain. Plaintiff's medical records reveal that he has been diagnosed as suffering from degenerative disc disease. Mans Aff. (Dkt. No. 229–14) Exh. A; see also Johnson Decl. (Dkt. No. 229–3) ¶ 7. According to Dr. Vonda Johnson, the Medical Director at Clinton, while certain treatment regimens may afford some measure of relief for that condition, depending upon the particular patient, it cannot necessarily be “fixed” through surgery, medication, or physical therapy. Johnson Decl. (Dkt. No. 229–3) ¶ 9. In any event, plaintiff's health records reveal that plaintiff was provided considerable testing and treatment, including physical therapy, in an effort to address that condition. See generally Mans Aff. (Dkt. No. 229–14) Exh. A; Johnson Decl. (Dkt. No. 229–3) ¶ 11. Evaluations arranged by prison officials regarding plaintiff's back condition have included MRI testing as well as an EMG study/ nerve conduction study on November 1, 1999, ordered by Dr. Ellen. Johnson Decl. (Dkt. No. 229–3) ¶ 11. *15 Another of plaintiff's complaints relates to treatment received for his knee. Plaintiff's medical records reveal that a bilateral physical examination of Amaker's knees was conducted on November 15, 1999 by Dr. Ellen. Manns Aff. (Dkt. No. 229–14) Exh. A, 11/1/99, 11/8/99, 11/15/99 Entries; Johnson Decl. (Dkt. No. 229–3) ¶ 11. Neither the results of Dr. Ellen's examination nor anything contained in plaintiff's records was viewed as indicating the need to perform MRI testing on his knees. Id. The specifics of plaintiff's complaints regarding his knee condition include allegations that prison medical personnel failed to provide him with proper knee braces, failed to order MRI testing, and denied his requests to see a specialist to address the pain, clicking and popping being experienced in both knees. Plaintiff's conclusory allegations of not being provided with a knee brace are belied by the record. On April 13, 1999 one neoprene right knee brace was received at Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 60 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 the facility for the plaintiff, with an indication that the other was back-ordered. See Mans Aff. (Dkt. No. 229–14) Exh. A, 4/13/99 entry. In any event upon receipt of the special neoprene knee braces, they were refused by the plaintiff. Id., 1/6/00 Interdepartmental Communication. Plaintiff's medical records reflect that medical officials at Clinton were in fact fully cognizant of plaintiff's complaints regarding knee pain, and took measures to address that condition. On November 8, 1999 a neurological examination of plaintiff's lower extremities was conducted, followed by a physical examination of both of plaintiff's knees on November 15, 1999. Johnson Decl. (Dkt. No. 229–3) ¶ 11; Mans Aff. (Dkt. No. 229–14) Exh. A, 11/1/99, 11/8/99, 11/15/99 entries. The results of those examinations by Dr. Ellen revealed nothing to indicate the need for MRI testing. While plaintiff challenges this determination, unsupported by any evidence suggesting that the opinions of Dr. Ellen were not medically appropriate, his claim in this regard represents nothing more than disagreement over a chosen course of treatment, and is insufficient to support a claim of indifference. Estelle, 429 U.S. at 105–06, 97 S.Ct. at 201–02; Chance, 143 F.3d at 703; Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.3d 296 (2d Cir.), cert. denied, 506 U.S. 1040, 113 S.Ct. 828 (1992). Another of plaintiff's medical complaints stems from the claim that while at Clinton he was denied treatment by Dr. Lee for a period of three months. Amended Complaint (Dkt. No. 78) ¶ 8. Neither plaintiff's complaint nor his motion submission, however, contains specifics regarding the time period involved. Moreover, while there may well have been periods of such a duration over which he was not seen by a doctor, a review of plaintiff's medical records fails to disclose any three month interval during which he was not medically treated by any DOCS medical personnel at Clinton. See Mans Aff. (Dkt. No. 229–14) Exh. A. Despite plaintiff's apparent belief to the contrary, the Eighth Amendment does not guarantee a prison inmate unfettered access to a prison physician at his or her insistence. See Harrison v. Barkley, 219 F.3d 132, 142 (2d Cir.2000) (“ ‘[S]ociety does not expect that prisoners will have unqualified access to health care ....‘ ”) (quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992)). *16 The vast majority of plaintiff's medical complaints surround the belief that he was not provided with adequate physical therapy, his disagreement over being told that he would have to pay for replacement of his broken eyeglasses, and the denial of appropriate shower and gym passes. 18 These complaints fall well short of establishing deliberate medical indifference of constitutional proportions on the part of prison officials at Clinton and Upstate. As the Second Circuit has noted, [i]t must be remembered that the State is not constitutionally obligated, much as it may be desired by inmates, to construct a perfect plan for [medical] care that exceeds what the average reasonable person would expect or avail herself of in life outside the prison walls. [A] correctional facility is not a health spa, but a prison in which convicted felons are incarcerated. Common experience indicates that the great majority of ... prisoners would not in freedom or on parole enjoy the excellence in [medical] care which the plaintiffs understandably seek .... We are governed by the principle that the objective is not to impose upon a state prison a model system of [medical] care beyond average needs but to provide the minimum level of [medical] care required by the Constitution. The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves.... The essential test is one of medical necessity and not one simply of desirability. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986) (internal quotations and citations omitted). Plaintiff's ambulatory health record, which is both extensive and comprehensive, has been reviewed by Dr. Vonda Johnson, the Medical Director at Clinton. Based upon her professional judgment, Dr. Johnson opines that the plaintiff neither suffered from any acute medical condition requiring immediate medical care and treatment or which resulted in harm to his health or well-being, nor was he denied appropriate treatment by medical and nursing staff both at Clinton and Upstate, as well as by any outside specialists required under the circumstances. Johnson Decl. (Dkt. No. 299–3) ¶¶ 14–15. Having engaged in a careful review of plaintiff's medical records, informed by plaintiff's arguments as well as Dr. Johnson's opinions, I am of the view that no reasonable factfinder could conclude that defendants were deliberately indifferent to any serious medical condition suffered by the plaintiff, and therefore recommend dismissal of plaintiff's deliberate indifference claims as a matter of law. I. Retaliation In his amended complaint, although with the same degree of indefiniteness that has plagued his submissions in other substantive areas, plaintiff also asserts claims of violation Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 61 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 of his First Amendment rights based upon retaliation for having engaged in protected activity, including the filing of grievances. Defendants also seek dismissal of plaintiff's retaliation claim as fatally nebulous and unsupported. *17 When adverse action is taken by prison officials against an inmate, motivated by the inmate's exercise of a right protected under the Constitution, including the free speech provisions of the First Amendment, a cognizable retaliation claim under 42 U.S.C. § 1983 lies. See Franco v. Kelly, 854 F.2d 584, 588–90 (2d Cir.1988). As the Second Circuit has repeatedly cautioned, however, such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus; courts must therefore approach such claims “with skepticism and particular care.” Dawes v. Walker, 239 F .3d 489, 491 (2d Cir.2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (same). In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that 1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action—in other words, that the protected conduct was a “substantial or motivating factor” in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007); Dawes, 239 F.3d at 492 (2d Cir.2001). If the plaintiff carries this burden, then to avoid liability the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff “even in the absence of the protected conduct.” Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted). Analysis of retaliation claims thus requires careful consideration of the protected activity in which the inmate plaintiff has engaged, the adverse action taken against him or her, and the evidence tending to link the two. When such claims, which are exceedingly case specific, are alleged in only conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, a defendant is entitled to the entry of summary judgment dismissing plaintiff's retaliation claims. Flaherty, 713 F.2d at 13. It should also be noted that personal involvement of a named defendant in any alleged constitutional deprivation is a prerequisite to an award of damages against that individual under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). As is true of other types of claims, this principle applies to causes of action claiming unlawful retaliation. See Abascal v. Hilton, No. 04–CV–1401, 2008 WL 268366, at *10 (N.D.N.Y. Jan. 30, 2008) (Kahn, D.J. and Lowe, M.J.). *18 Analysis of plaintiff's retaliation cause of action is complicated by virtue of his failure in most instances to state, with any modicum of clarity, what specific protected activity triggered the retaliatory response and what the resulting adverse action was, including to articulate the timeframe involved. Among the actions apparently attributed by Amaker to retaliatory animus are searches of his cell, conducted on March 22 and 23, 1999. Amended Complaint (Dkt. No. 78) ¶ 10. Defendants' submissions, however, reveal that the first of those two searches was based upon suspicion that the plaintiff, one of several inmates present in the law library at the time a corrections officer's handcuff key case was discovered missing, could be in possession of that contraband. 19 Bell Decl. (Dkt. No. 229–10) ¶ 6. The second of those searches was a routine search performed in accordance with DOCS directives requiring periodic random cell searches. Id. ¶¶ 6–8. Since it therefore appears that both of those actions were taken for independent and legitimate reasons, they cannot form the basis of a retaliation claim. Mount Healthy City Bd. of Ed., 429 U.S. at 287, 97 S.Ct. at 576; see also Lowrence v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994). Although it is far from clear, plaintiff also appears to assert that the requirement imposed by prison officials that he pay for spices and food consumed in connection with his celebration of Ramadan was retaliatory. Amended Complaint (Dkt. No. 78) ¶ 13. It is doubtful that a reasonable Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 62 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 factfinder could conclude that this requirement rose to a level sufficient to constitute an adverse action. Cf. Kole v. Lappin, 551 F.Supp.2d 149, 155 (D.Conn.2008) (dismissing plaintiff's retaliation claim based on her complaint that the prison reduced the number of items sold as kosher-for Passover for inmates in response to her filing a grievance regarding the one hundred dollar spending limit). In any event, more importantly, there is no evidence among any of plaintiff's submissions which would establish the requisite nexus between the imposition of that requirement and plaintiff having engaged in protected activity. Undeniably, it appears that the plaintiff in this case frequently avails himself of his First Amendment right to complain, by instituting litigation, filing grievances, and pursuing other channels, regarding prison conditions and his treatment as a DOCS inmate. It is also clear that the plaintiff has been subject to disciplinary action by prison officials with some regularity. While these two circumstances could suffice to establish two of the three requisite elements to establish a claim of unlawful retaliation, at least at the summary judgment stage, the record is wholly lacking in evidence from which a reasonable factfinder could conclude that the third and critical element, linking one or more of the adverse actions to plaintiff's protected activity, has been satisfied. Accordingly, I recommend dismissal of plaintiff's retaliation claim as a matter of law. J. Equal Protection *19 Plaintiff's complaint, as amended, also makes passing reference to the denial by defendants of his right to equal protection. See, e.g., Amended Complaint (Dkt. No. 78) ¶ 28, 33. The Equal Protection Clause directs state actors to treat similarly situated people alike. See City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). To prove a violation of the Equal Protection Clause, a plaintiff must demonstrate that he or she was treated differently than others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995) (citing, inter alia, McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767 (1987)). The plaintiff must also show that the disparity in treatment “cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not reasonably related to [any] legitimate penological interests.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005) (quoting Shaw v. Murphy, 532 U.S. 223, 225, 121 S.Ct. 1475 (2001) (internal quotation marks omitted)). In this instance neither plaintiff's complaint, as amended, nor the record now before the court provides specifics to flesh out plaintiff's equal protection claim. Presumably, the claim is rooted in the alleged differentiation of prison officials in their treatment of him, based upon his race. To be sure, plaintiff's submissions indicate the use of at least one racial epithet by prison officials. The record, however, is otherwise devoid of evidence from which a reasonable factfinder could conclude that the defendants discriminated as against the plaintiff based upon his race or some other protected criteria. Instead, plaintiff's allegations fall within the category of those observed by the Second Circuit to be insufficient, the court noting that “complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.” Barr v. Abrahams, 810 F.2d 358, 363 (2d Cir.1987). Discerning no basis upon which a reasonable factfinder could conclude that the defendants have violated Amaker's right to equal protection under the Fourteenth Amendment, I similarly recommend dismissal of that claim. K. Procedural Due Process Plaintiff's amended complaint also asserts, once again in wholly conclusory fashion, that his right to due process was violated by the defendants. Conspicuously absent from plaintiff's submissions, however, is an indication of what cognizable liberty interests are implicated in this cause of action, as well as illumination as to the reasons for his claim that due process was not afforded. To successfully state a claim under 42 U.S.C. § 1983 for the denial of procedural due process arising out of a disciplinary hearing, a plaintiff must show that he or she 1) possessed an actual liberty interest, and 2) was deprived of that interest without being afforded sufficient process. See Tellier v. Fields, 280 F.3d 69, 79–80 (2d Cir.2000) (citations omitted); Hynes, 143 F.3d at 658; Bedoya v. Coughlin, 91 F.3d 349, 351–52 (2d Cir.1996). The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are wellestablished, the contours of the requisite protections having been articulated in Wolff v. McDonnell, 418 U .S. 539, 564–67, 94 S.Ct. 2963, 2978– 80 (1974). Under Wolff, the constitutionally mandated due process requirements, include 1) written notice of the charges; 2) the opportunity to appear at a disciplinary hearing and Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 63 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 present witnesses and evidence, subject to legitimate safety and penological concerns; 3) a written statement by the hearing officer explaining his or her decision and the reasons for the action being taken; and 4) in some circumstances, the right to assistance in preparing a defense. Wolff, 418 U.S. at 564–67, 94 S.Ct. at 2978–80; see also Eng v. Coughlin, 858 F .2d 889, 897–98 (2d Cir.1988). In order to pass muster under the Fourteenth Amendment, hearing officer's disciplinary determination must garner the support of at least “some evidence”. Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768 (1985). *20 Having carefully searched the record now before the court, I am unable to find that Amaker experienced the deprivation of a constitutionally cognizable liberty interest sufficient to trigger the protections afforded under the Fourteenth Amendment. Moreover, even assuming arguendo the existence of such a liberty interest, plaintiff's submissions do not disclose any failure to comply with the constitutional mandates of the Fourteenth Amendment, including those articulated by the Supreme Court in Wolff. Accordingly, I recommend dismissal of plaintiff's procedural due process cause of action, as a matter of law. IV. SUMMARY AND RECOMMENDATION Plaintiff's amended complaint, though rambling and consisting of varied and wide-ranging claims based upon acts allegedly occurring at both Clinton and Upstate, when boiled down to its essence asserts claims of medical indifference, constitutional violations based on DNA testing, retaliation, and denial of access to the courts. Having carefully considered the record now before the court I conclude that no factfinder could find in plaintiff's favor on any of these claims, and that defendants are thus entitled to dismissal of all claims against them, as a matter of law. 20 Accordingly, it is hereby RECOMMENDED that defendants' motion for summary judgment dismissing plaintiff's complaint (Dkt. No. 229) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety; and it is further hereby RECOMMENDED that in light of this disposition the motion of defendant R. Rivera to dismiss plaintiff's claims against him for failure to state a cause of action upon which relief may be granted (Dkt. No. 237) be DENIED as moot. NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993). It is further ORDERED that the Clerk of the Court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. All Citations Not Reported in F.Supp.2d, 2009 WL 385413 Footnotes 1 Plaintiff filed an amended complaint purporting to add the New York State Senate and New York State Assembly as Defendants, see Dkt. No. 78; however, in its May 13, 2002 Order, the Court, while granting Plaintiff leave to amend, denied Plaintiff leave to add these entities as defendants, see Dkt. No. 75. 2 The Court notes that, in addition to Magistrate Judge Peebles' reasoning regarding Plaintiff's complaint about Defendants' allegedly retaliatory searches of his cell, cell searches, even if retaliatory, do not offend the Constitution and are not actionable. See Bumpus v. Canfield, 495 F.Supp.2d 316, 327 (W.D.N.Y.2007) (citing Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)) (other citation omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 64 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 1 Upstate is a maximum security prison comprised exclusively of special housing unit (“SHU”) cells in which inmates are confined, generally though not always for disciplinary reasons, for twenty-three hours each day. See Samuels v. Selsky, No. 01 CIV. 8235, 2002 WL 31040370, at *4 n. 11 (S.D.N.Y. Sept. 12, 2002). 2 The specifics of plaintiff's various causes of action will be discussed in more detail in the portions of this report addressing each grouping of claims. 3 In addition to this action, plaintiff has commenced two other suits in this court. The first, Anthony D. Amaker v. Glenn S. Goord, et al., Civil Action No. 03–CV–1003 (NAM/DRH) (N.D.N.Y., filed 2003) (“Amaker II” ), addresses incidents occurring at Upstate as well as subsequent to plaintiff's transfer into the Downstate Correctional Facility, and later to the Great Meadow Correctional Facility. A review of the relevant pleadings from that case reflects significant overlap between the claims asserted in that action and those now before the court. The other action, commenced by plaintiff on March 22, 2006 and encaptioned Anthony D. Amaker, et al. v. Glenn S. Goord, et al., Civil Action No. 06–CV–0369 (GLS/RFT) (N.D.N.Y., filed 2006) (“Amaker III” ), was transferred to the Western District of New York on July 6, 2006, pursuant to 28 U.S.C. § 1404(a). 4 Also named as defendants in plaintiff's amended complaint were the New York State Senate and the New York State Assembly. See Dkt. No. 78. Those entities, which are clearly not parties amenable to suit, have not been formally joined as defendants in the action, however, in light of the issuance of an order on May 13, 2002 denying plaintiff's application for leave to amend to the extent that he sought permission to add them as defendants. See Dkt. No. 75. 5 Among plaintiff's submissions in opposition to the pending motions is a request that the court strike an affirmation submitted by defendants' counsel, Jeffrey P. Mans, Esq., as well as declarations of Dr. Vonda Johnson and James Bell, from the record. Dkt. No. 240–03. Having reviewed the Johnson and Bell declarations, I discern no basis to strike them from the record. Turning to Attorney Mans' declaration, I find that it appears to be offered principally to describe the exhibits being submitted in connection with defendants' motion and to set forth legal argument to supplement their memorandum. While the inclusion of legal argument in such an attorney's affidavit is ordinarily not appropriate, Donahue v. Uno Restaurants, LLC, No. 3:06–CV–53, 1006 WL 1373094, at *1 n. 1 (N.D.N.Y. May 16, 2006) (McAvoy, J.), and it is doubtful that defendants' attorney is positioned to include in an affidavit assertions of fact beyond his personal knowledge, Housing Works, Inc. v. Turner, No. 00 Civ. 1122, 2003 WL 22096475, at *1 (S.D.N.Y. Sept. 9, 2003), I have chosen not to strike the affidavit, and instead to consider it solely for the limited purpose for which it is being offered. 6 The DOCS conducts three types of inmate disciplinary hearings. Tier I hearings address the least serious infractions, and can result in minor punishments such as the loss of recreation privileges. Tier II hearings involve more serious infractions, and can result in penalties which include confinement for a period of time in the Special Housing Unit (SHU). Tier III hearings concern the most serious violations, and could result in unlimited SHU confinement and the loss of “good time” credits. See Hynes v. Squillace, 143 F.3d 653, 655 (2d Cir.), cert. denied, 525 U.S. 907, 119 S.Ct. 246 (1998). 7 Keeplock is a form of confinement restricting an inmate to his or her cell, separating the inmate from others, and depriving him or her of participation in normal prison activities. Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir.1989); Warburton v. Goord, 14 F.Supp.2d 289, 293 (W.D.N.Y.1998) (citing Gittens ); Tinsley v. Greene, No. 95–CV–1765, 1997 WL 160124, at *2 n. 2 (N .D.N.Y. Mar. 31, 1997) (Pooler, D.J. & Homer, M.J.) (citing, inter alia, Green v. Bauvi, 46 F.3d 189, 192 (2d Cir.1995)). Inmate conditions while keeplocked are substantially the same as in the general population. Lee v. Coughlin, 26 F.Supp.2d 615, 628 (S.D.N.Y.1998). While on keeplock confinement an inmate is confined to his or her general population cell for twenty-three hours a day, with one hour for exercise. Id. Keeplocked inmates can leave their cells for showers, visits, medical exams and counseling, and can have cell study, books and periodicals, Id. The primary difference Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 65 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 between keeplock and the general population confinement conditions is that keeplocked inmates do not leave their cells for out-of-cell programs, and are usually allowed less time out of their cells on the weekends. Id. 8 In New York, SHU cells are utilized for segregating prisoners from general population areas for various reasons including, predominantly, disciplinary purposes. Lee v. Coughlin, 26 F.Supp.2d 615, 618 (S.D.N.Y.1998) (citing 7 NYCRR pts. 253, 254, and 301). The conditions typically experienced by inmates confined in an SHU include two showers per week; one hour of outdoor exercise per day; unlimited legal visits; one non-legal visit per week; access to counselors; access to sick call; cell study programs; and access to library books. Husbands v. McClellan, 990 F.Supp. 214, 218 (W.D.N.Y.1998) (citing 7 NYCRR pt. 304). 9 The subsequent disciplinary proceedings necessitated by virtue of plaintiff's refusal to provide a DNA sample are chronicled in a report and recommendation issued in another action brought by plaintiff Amaker. See Amaker II, Dkt. No. 160, slip op. at pp. 3–4. 10 To some extent there is overlap between plaintiff's property loss claims and his contention that through confiscation or destruction of documents and other materials related to his ongoing litigation, he has been deprived of access to the courts. The property loss at issue in connection with this claim could also potentially serve as adverse action alleged by the plaintiff in connection with his retaliation claim. Both of these claims are addressed elsewhere in this report. See pp. 21–26, and 42–48, post. 11 In a broader sense, this portion of defendants' motion implicates the sovereign immunity enjoyed by the State. As the Supreme Court has reaffirmed relatively recently, the sovereign immunity enjoyed by the states is deeply rooted, having been recognized in this country even prior to ratification of the Constitution, and is neither dependent upon nor defined by the Eleventh Amendment. Northern Ins. Co. of New York v. Chatham County, 547 U.S. 189, 193, 126 S.Ct. 1689, 1693 (2006). 12 By contrast, the Eleventh Amendment does not establish a barrier against suits seeking to impose individual or personal liability on state officials under section 1983. See Hafer, 502 U.S. at 30–31, 112 S.Ct. at 364–65. 13 Among the court access arguments asserted by plaintiff is the claim that on one occasion on September 10, 1998 plaintiff gave legal mail of an unspecified nature to Corrections Officer R. Lincoln, who never delivered it. Amended Complaint (Dkt. No. 78) ¶ 7. Since neither plaintiff's complaint nor the record now before the court discloses, however, that plaintiff suffered any prejudice as a result of that failure, this claim lacks merit. See Govan v. Campbell, 289 F.Supp.2d 289, 297–98 (N.D.N.Y.2003) (Sharpe, M.J .). Moreover, to the extent that the failure to promptly deliver that mail might be proven to have legal consequences, it is noted that that significance is substantially ameliorated by the prison mailbox rule which provides, in essence, that court papers are deemed filed when delivered by a prison inmate to corrections officials. See Houston v. Lack, 487 U.S. 266, 270–72, 108 S.Ct. 2379, 2382–83 (1988); Mingues v. Nelson, No. 96 CV 5396, 2004 WL 324898, at *3 (S.D.N.Y. Feb. 20, 2004). 14 As defendants note, many of plaintiff's allegations regarding library access denial fail to identify any particular defendant to whom the denial can be fairly attributed. Since personal involvement in a constitutional deprivation is an essential requirement of a civil rights claim under 42 U.S.C. § 1983, Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995), this failure thus provides an additional, independent basis for dismissal of at least portions of plaintiff's court access claims. 15 In light of this finding I also recommend against referral of this matter to the United States Attorney, a matter which, while within the court's inherent authority in the event of a perceived criminal violation, see, e.g., ACLI Govn't Sec., Inc. v. Rhoades, 989 F.Supp. 462, 467 (S.D.N.Y.1997), does not appear to be warranted. This determination, of course, does not preclude the plaintiff from filing a complaint with the United States Attorney or other appropriate federal authorities. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 66 of 240
Amaker v. Kelley, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 16 From a comparison of plaintiff's medical indifference claims in this case with those rejected in Amaker II, it appears that there is considerable overlap. 17 Plaintiff's medical indifference claims carry forward to his time at Upstate, following a transfer into that facility on October 31, 2001. In his complaint, as amended, plaintiff asserts that during the course of that transfer he was “made to walk in waist chain hurting his herniated discs in his lower back causing his legs to go numbed [sic] [and that he] never was send [sic] to a medical doctor ....“ Amended Complaint (Dkt. No. 78) ¶¶ 21, 24. This claim is contradicted by plaintiff's medical records, however, which reveal that upon his arrival at Upstate he was medically examined, screened and orientated, with no indication of any complaints of pain or numbness at that time; in fact, according to his medical records, plaintiff denied having any injury or current medical complaint when questioned during that process. See Mans Aff. (Dkt. No. 229–14) Exh. A, 10/31/08 Entrance Exam Form, Screening and Physical Assessment Form, Inmate Orientation Form, and Incoming Draft Form. Despite plaintiff's further claim that he was not seen by medical officials at Upstate, the records once again reveal otherwise, reflecting that prior to the time of his transfer out of that facility on April 22, 2002, he was seen by medical personnel at Upstate more than forty times, with various complaints being registered by him along the way. 18 According to his health records, plaintiff was seen at Clinton by Nurse Rizoff on June 16, 1998, claiming that his eyeglasses were broken and requesting an eye examination and new glasses. See Mans Aff. (Dkt. No. 229–14) Exh. A, 6/16/98. Nurse Rizoff inquired as to how the glasses were broken, and advised the plaintiff that pursuant to the DOCS health services policy regarding vision care services he might be held accountable for the cost of any replacement that occurred within two years of his last eye examination and the issuance of glasses. See id., Interdepartmental Communications from Dr. Lee to Plaintiff Regarding DOCS Policy for Eyeglasses, dated February 26, 1999. Plaintiff's records reveal that his eyes were subsequently examined on July 8, 1998, at which time he received a pair of glasses, and that he was retested on April 26, 1999 after complaining of eye pain. See Id., 7/9/98 and 4/26/99 Entries. While there is considerable question as to whether plaintiff's eye condition constitutes a serious medical need for purposes of the Eight Amendment, particularly in view of the lack of allegations that his condition degenerated or he experienced severe pain as a result of the delay in providing him with an eye examination and glasses, see Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996); Abdush–Shahid v. Coughlin, 933 F.Supp. 168, 181 (N.D.N.Y.1996) (Koeltl, J.), it is clear that the defendants were not, as alleged, indifferent to his vision impairment. 19 It is well-established that as a prison inmate plaintiff has no Fourth Amendment right to privacy which would preclude a search of his cell, accomplished for legitimate reasons. Hudson v. Palmer, 468 U.S. 517, 525–26, 104 S.Ct. 3194, 3200 (1984). A cell search motivated out of retaliatory animus, however, could be found to support a claim of unlawful retaliation provided that all of the prerequisites for establishing a First Amendment claim were met. See H'Shaka v. Drown, No. 9:03–CV–937, 2007 WL 1017275, at *12 (N.D.N.y. Mar. 30, 2007) (Kahn, D.J. and Treece, M.J.). 20 Based upon this finding I have opted not to address the defendants' additional arguments of lack of personal involvement and entitlement to qualified immunity. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001). Similarly, I have chosen not to address the motion filed on behalf of defendant R. Rivera seeking dismissal for failure to state a cause of action in light of my recommendation regarding defendants' summary judgment motion. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 67 of 240
Bailey v. Tricolla, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1995 WL 548714 Only the Westlaw citation is currently available. United States District Court, E.D. New York. John BAILEY, etc., Plaintiff, v. Detective Philip TRICOLLA et alia, Defendants. No. CV–94–4597 (CPS). | Sept. 12, 1995. MEMORANDUM AND ORDER SIFTON, Chief Judge. *1 This is a civil rights action brought pro se by plaintiff John Bailey on behalf of himself and his minor daughter Natasha Bailey. The defendants are New York City Police Detective Philip Tricolla, Detective Douglas Hopkins, Detective Ortiz, Detective A. Semioli and an unnamed employee of Channel 9 News, “John Doe.” Interpreting plaintiffs' complaint liberally, as required by Haines v. Kerner, 404 U.S. 519 (1972), several federal and state claims are stated. Plaintiffs assert claims under 42 U.S.C. § 1983 based on the Fourth, Eighth and Fourteenth Amendments. The following federal claims are asserted by John Bailey on his own behalf: (1) that his Fourth Amendment right was violated when his property was illegally searched and seized by Detectives Tricolla, Semioli, and others, (2) that his Eighth Amendment right was violated when the detectives failed to stop an attack on plaintiff while in their custody, and (3) that his 14th Amendment right to due process was violated when the detectives filed false police reports and perjured themselves testifying at his trial. The following state claims are also asserted: (1) that an unidentified man who reportedly worked for Channel 9 News battered plaintiff John Bailey while he was in the custody of Detectives Tricolla and Hopkins, (2) that the detectives engaged in abuse of process when they filed false police reports concerning plaintiff's conduct, and (3) on behalf of Natasha Bailey, plaintiff John Bailey asserts that Detective Ortiz took her from her mother and used excessive force to do so. On February 10, 1995, plaintiff moved for leave to amend the complaint to name “Channel 9 Broadcasting Systems, any and all Affiliates and or Sponsor's and Newscasters, and anyone and everyone responsible for the broadcasting of the Channel 9 news story shown on the Channel 9 news on or about June 7, 1991, in which the plaintiff was assaulted both physically then verbally with false slanderous stat[e]ments that implied plaintiff's guilt.” There are two motions to dismiss before the Court. In the first, defendant Detectives Tricolla, Hopkins, Ortiz, and Semioli move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the complaint is barred by the statute of limitations and that the defendants are immune from suit. In the second, defendant “John Doe,” a Channel 9 News Reporter, moves to dismiss the complaint on two grounds. First, pursuant to Rule 12(b) (1), defendant Doe argues that this Court lacks subject matter jurisdiction over him because, as a news reporter, “John Doe” is not a “person” within the meaning of 42 U.S.C. § 1983. Second, pursuant to Rule 12(b)(6), Doe asserts that the complaint is barred by the statute of limitations. On March 29, 1995, this Court received a sworn affidavit and supplementary exhibits from plaintiff John Bailey seeking to establish that his complaint was filed within the statute of limitations. Defendants have not had responded to this material. For the reasons set forth below, defendants' motions to dismiss certain claims based on absolute immunity are granted in part and denied in part. The city defendants' motion to dismiss the remaining claims statute of limitations grounds is denied. Defendant Doe's motion to dismiss the complaint as to himself is granted. Plaintiff's motion to amend the complaint as set forth in their motion is denied. Plaintiffs' motion for the appointment of counsel for the plaintiff Natasha Bailey is granted, and this action is stayed pending the appointment of counsel and guardian ad litem for the minor plaintiff. BACKGROUND *2 The following facts are taken from the plaintiff's complaint and, for the purposes of this motion, are presumed to be true and are regarded in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). Plaintiffs' complaint alleges constitutional injury arising from several incidents. On June 6, 1991, plaintiff John Bailey was arrested by Detective Tricolla and “a great many other Detectives.” At the time of the arrest, detectives searched and seized plaintiff's property including a bill of sale for a .25 caliber automatic, firearms, ammunition, a gun registration, a firearms lock box, several keys, two wallets, and other items. Detective Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 68 of 240
Bailey v. Tricolla, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Semioli is specifically accused of stealing plaintiff's transit badge and buspass I.D. On the day of plaintiff's arrest, June 6, 1991, Detective Ortiz questioned Natasha Bailey, plaintiff John Bailey's daughter, and took her away from her mother by force. On June 7, 1991, between 2 and 5 a.m. plaintiff was being escorted in handcuffs by Detectives Tricolla and Hopkins through the main lobby of the 71st police precinct when plaintiff was hit by defendant “John Doe,” a man he later learned was employed by Channel 9 News. Detectives also are accused of filing false police reports concerning John Bailey and Natasha Bailey and are accused of perjuring themselves when testifying at plaintiff's trial. In the motion to amend the complaint, plaintiff alleges that these events were broadcast on Channel 9 News on or about June 7, 1991. DISCUSSION Subject Matter Jurisdiction Defendant Doe has argued that this court lacks subject matter jurisdiction. 1 Plaintiffs filed their suit under 42 U.S.C. § 1983. Defendant Channel 9 news reporter “John Doe” contends that he is not a “person” within the meaning of § 1983, and that this Court therefore lacks subject matter jurisdiction over him. Defendant cites no case law to support this proposition but relies solely on the plain meaning of the statute. 2 This Court has also found nothing that would lend defendant's position support. In one § 1983 case involving a journalist, Fitzpatrick v. Wert, 432 F.Supp. 601 (W.D.N.Y.1977), inmates sued news reporters who reported and commented on a statement made by the president of a prison guards' union. Plaintiffs alleged that defendant news reporters were involved in a conspiracy to deprive plaintiffs of equal protection under the law. Id. at 603. The suit was dismissed as frivolous. The reporters were held not liable under § 1983 because they were engaged in exercising their constitutionally protected rights. Id. However, neither in Fitzpatrick nor anywhere else in the extant case law has a court held that journalists were or were not “persons” within the meaning of the statute. The proper issue before the Court is whether defendant “John Doe” was acting “under color of any statute, ordinance, regulation, custom, or usage, of any State....” 42 U.S.C. § 1983. This is an issue more appropriately dealt with as a 12(b)(6) motion to dismiss, since acting under color of state law is an element of pleading a § 1983 cause of action. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Moreover, when a district court has both a 12(b)(1) and 12(b)(6) motion before it, the “preferable approach, if the 12(b)(1) motion essentially challenges the existence of a federal cause of action, is for the court to find jurisdiction and then decide the 12(b)(6) motion.” Jones v. State of Georgia, 725 F.2d 622 (11th Cir.) (citing Williamson v. Tucker, 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897 (1981)), cert. denied, 469 U.S. 979 (1984). Accordingly, this Court has subject matter jurisdiction over this defendant. *3 As to defendants Detective Philip Tricolla, Detective Douglas, Detective Hopkins, Detective Ortiz, and Detective A. Semioli, this Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. § 1343(a)(3) and (4) 3 which specifically provides jurisdiction over § 1983 actions. Jurisdiction is also proper pursuant to 28 U.S.C. § 1331 which provides district courts with jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. City Defendants' Statute of Limitations Defense Defendants argue that the statute of limitations bars all of plaintiffs' claims except the allegation that detectives perjured themselves at the plaintiff's trial. There are three elements needed to determine whether a claim falls within the statute of limitations: (1) when the period of limitations accrued, (2) how long the period runs for, and (3) whether the period has been tolled by reason of incapacity. Federal law determines when an action accrues. Morse v. University of Vt., 973 F.2d 122, 125 (2d Cir.1992); Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920 (1981). The statutory period for bringing a § 1983 action accrues on the day when plaintiff “ ‘knows or has reason to know’ of the injury which is the basis of his action.” Pauk v. Board of Trustees, 654 F.2d 856, 859 (2d Cir.) (quoting Singleton ), cert. denied, 455 U.S. 1000 (1982). Furthermore, the “proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful.” Chardon v. Fernandez, 454 U.S. 6, 8 (1991). Plaintiff's claims accrued on different dates. Plaintiff's property was searched and seized on June 6, 1991, at the time of his arrest, and on June 7, 1991, plaintiff was allegedly assaulted by defendant “John Doe” while in the custody of defendant Detectives Tricolla Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 69 of 240
Bailey v. Tricolla, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 and Hopkins. Plaintiff clearly had immediate knowledge of both of these events, and thus any cause of action arising therefrom accrued at that time. Congress provided no explicit statute of limitations for § 1983 claims. As a result, there was much confusion as to which state limitations statute to apply until the Supreme Court, in Wilson v. Garcia, 471 U.S. 261 (1985), decided that the states' general personal injury statute of limitations should be applied to all § 1983 claims. Id. at 276. When a state has more that one personal injury statute of limitations, as is the case in New York, § 1983 claims are governed by the state's residual or general personal injury statute of limitations rather that by the statute of limitations for an enumerated intentional tort. Owens v. Okure, 488 U.S. 235 (1989). Under New York CPLR § 214, the general personal injury statute of limitations is three years. Therefore, in New York, a plaintiff must commence his § 1983 action within three years of the date the cause of action accrues. See Perez v. Police Dept. of the City of New York, 872 F.Supp. 49, 51 (S.D.N.Y.1994). *4 Plaintiff John Bailey signed and notarized his complaint on May 16, 1994. However, the complaint was date-stamped “received” on July 11, 1994, by the Southern District pro se office and stamped as filed with the Southern District of New York on September 13, 1994. In a supplemental affidavit filed on March 29, 1995, plaintiff attests that he prepared and mailed the complaint to the Southern District for filing on May 17, 1994, and requested a return receipt. Plaintiff has annexed to his affidavit a copy of his certified mail receipt, addressed to the U.S. District Court at 40 Centre St., New York, N.Y. and showing a post office stamp of May 17, and a copy of the returned receipt, signed and dated May 26, 1994. Rule 3 of the Federal Rules of Civil Procedure determines when a civil rights action commences. It simply states “[a] civil action is commenced by filing a complaint with the court.” Fed.R.Civ.P. 3. Incarcerated litigants are afforded more leeway when they file pleadings because of their inability to file papers personally with the clerk of the court. Thus, for example, litigants may file a complaint by handing it to prison authorities, Dory v. Ryan, 999 F.2d 679, 682 (2d Cir.1993) (discussing Houston v. Lack, 487 U.S. 266 (1988)), modified by 25 F.3d 81 (2d Cir.1994); Lewis v. Richmond City Police Dept., 947 F.2d 733, 734 (4th Cir.1991), or may file an appeal in the same manner. LaBounty v. Adler, 933 F.2d 121 (2d Cir.1991). At least one court has held that a return receipt dated within the limitations period suffices to prove receipt by the clerk and therefore filing, even if the clerk's office stamps the pleading “received” or “filed” on later dates. Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir.1989). Generally, file stamps are far from dispositive of a statute of limitations issue. In Mays v. New York City Police Dept, 701 F.Supp. 80, 83 n. 6 (S.D.N.Y.1988), aff'd, 888 F.2d 1376 (2d Cir.1989), it was held that “[w]hen a pro se plaintiff's complaint is received by the Court within the statutory period, as here, and official filing is delayed by the Court's consideration of plaintiff's request for leave to proceed in forma pauperis, the action will be deemed timely for purposes of the statute of limitations.” See also Salahuddin v. Harris, 657 F.Supp. 369, 373 n. 3 (S.D.N.Y.1987). The key inquiry is whether the clerk's office had actual control; papers placed in a night depository box after hours on the last day of the limitations period are deemed timely notwithstanding a local rule that such papers would be deemed filed the following day, because the papers placed in the box were held to be in the clerk's “actual possession.” Greenwood v. State of N.Y., Office of Mental Health, 842 F.2d 636, 639 (2d Cir.1988); see also Martin v. Demma, 831 F.2d 69, 71 (5th Cir.1987) (district court's acceptance of date on clerk's stamps as dispositive was error). Plaintiff's production of the post office return receipt showing that his complaint was received at the Southern District clerk's office within the limitations period meets his burden of producing evidence to show that his papers were timely filed sufficient to warrant denial of the motion to dismiss at this time. The denial of this motion is without prejudice if discovery uncovers additional evidence relating to this matter. Alleged False Police Reports and Perjured Testimony *5 Plaintiff also claims that defendant detectives filed false police reports and lied while testifying at his trial. Even if timely filed, these claims cannot withstand a motion to dismiss. Generally, police officers have available a defense of only qualified immunity. Pierson v. Ray, 386 U.S. 547 (1967). However, defendant detectives are correct that officers serving as witnesses have absolute immunity from civil liability for their testimony. Briscoe v. LaHue, 460 U.S. 325 (1983). As the Supreme Court held in Briscoe, “the common law provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise —who were integral parts of the judicial process.” Id. at 335. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 70 of 240
Bailey v. Tricolla, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Section 1983 does not abrogate this traditional immunity. Examining the legislative history of the Ku Klux Klan Act of 1871, 17 Stat. 13 (now codified at 42 U.S.C. §§ 1983 and 1985, inter alia ), the Supreme Court found nothing to “support petitioners' contention that Congress intended to provide a § 1 damages remedy against police officers or any other witnesses.” Id. at 341. The Court specifically noted that, although “some defendants might indeed be unjustly convicted on the basis of knowingly false testimony by police officers ... the alternative of limiting the official's immunity would disserve the broader public interest.” Id. at 345. In light of Briscoe, defendant detectives are absolutely immune from this § 1983 action with respect to their testimony at plaintiff's trial. Plaintiff's allegations that the police officers filed false police reports against him also fails to state a claim. “[T]he mere filing of the false police reports, by themselves and without more, [does] not create a right of action in damages under 42 U.S.C. § 1983.” Landrigan v. City of Warwick, 628 F.2d 736, 744–45 (1st Cir.1980). Plaintiff's claims could be cast as a cause of action for malicious prosecution. Allegations of malicious prosecution do not ordinarily state a claim under § 1983. Easterhouse v. Felder, 910 F.2d 1387, 1407 (7th Cir.1990), cert. denied, 498 U.S. 1067 (1991); Gunderson v. Schueter, 904 F.2d 407, 409 (8th Cir.1990); Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). The filing of false police reports may bring a claim for malicious prosecution within the scope of § 1983. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, an essential element of such a claim is that the proceeding must terminate in plaintiff's favor, and plaintiff has not alleged this key fact. Bernard v. United States, 25 F.3d 98, 104 (2d Cir.1994). If plaintiff were convicted but believes that he was wrongly convicted, his proper remedy is not a claim for damages but rather an appeal, a collateral attack in state court, or a habeas petition in federal court. Plaintiffs thus have no cognizable § 1983 claim for the alleged filing of false reports. 4 *6 Since the only other argument advanced by the city defendants is the statute of limitations and since that argument fails as noted above, their motion to dismiss the complaint is granted only with respect to the alleged false reports and false testimony and is denied in all other respects. Claims Against Defendant “John Doe” The “under color” of law provision of § 1983 does not require that the defendant be an officer of the State. Dennis v. Sparks, 449 U.S. 24 (1980). However, for the conduct of a private party to fall within the “under color” language, that conduct must be supported by state action, usually in the form of a conspiracy. Adickes v. S.H. Kress & Co., 398 U.S. 144, 163 (1970) (defendant restaurant owner who refused to serve Caucasian woman in the company of African American students was acting under color of law within the meaning of § 1983 because of his participation in a conspiracy with local police to deprive plaintiff of her rights). State support which transforms private action into state action may take many forms. In plaintiff's case, the only support given to “John Doe” was the inaction of the detectives who witnessed the battery. This level of support, if it can be called support at all, cannot qualify as state action because the complaint fails to allege that the attack was the result of a joint venture with the detectives. See United States v. Price, 383 U.S. 787 (1966). In Price, private actors charged with conspiring with local police to injure three men came within the scope of the statute because the private persons acted as willful participants in a joint activity with the state or its agents. Id. at 794. The Second Circuit has repeatedly held that § 1983 conspiracy claims must “contain more than mere conclusory allegations ... [and that] a plaintiff should not plead mere evidence; he should make an effort to provide some ‘details of time and place and the alleged effect of the conspiracy.’ ” Dwares v. City of New York, 985 F.2d 94, 99–100 (2d Cir.1993) (quoting 2A Moore's Federal Practice ¶ 8.17[6], at 8–109 to 8–110 (2d ed. 1992)). Even though pro se complaints are read very broadly under Haines, the Court is nevertheless limited to addressing the face of a pleading. Goldman v. Belden, 754 F.2d 1059 (2d Cir.1985). A claim of conspiracy between defendant detectives and defendant Channel 9 news reporter cannot be inferred from the facts presented in the complaint, and the complaint is dismissed as to this John Doe defendant. Plaintiff's state law claims against defendant Doe are also dismissed Under any reading of the complaint, these claims can only be for assault, libel, or some other intentional tort. The state law claims are subject to New York's one-year statute of limitations for intentional torts, CPLR § 215, rather than the three-year period for negligence actions or § 1983 claims. This period has clearly expired as to all claims against Doe. Accordingly, the complaint is dismissed as to defendant Doe. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 71 of 240
Bailey v. Tricolla, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 *7 For similar reasons, plaintiff's motion to amend the complaint is also denied. The amendment seeks to name Channel 9 Broadcasting Systems and others as defendants in a slander or libel action. These actions are also subject to the one-year statute of limitations. Since the proposed amendment would be futile, plaintiff's motion is denied. Natasha Bailey Natasha Bailey is represented by her father, plaintiff John Bailey. Under the Federal Rules of Civil Procedure, capacity to sue is determined by the law of the state in which the district court is held. Fed.R.Civ.P. 17(b). Rule 17(b) reads in relevant part: “The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile ... [i]n all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held....” Wright and Miller comment on this rule, noting that state law determines the capacity of the guardian as well as the plaintiff: “[a]s has been seen in the preceding sections, the first two sentences of Rule 17(b) deal with an individual suing on his own behalf and with the capacity of corporations. The third sentence of the rule provides that in all other cases capacity to sue or be sued is to be determined by the law of the state in which the district court is held. This portion of the rule applies principally to individuals who are suing in a representative capacity, including executors and administrators, guardians, trustees, and receivers appointed by a state court.” Wright & Miller, Federal Practice and Procedure: Civil § 1565. Under New York law, an infant 5 cannot prosecute an action in person. The Federal Rules of Civil Procedure allow a representative to sue on behalf of an infant. Fed.R.Civ.P. 17(c). However under New York law the infant must appear by a parent who has “legal custody” 6 or guardian ad litem. “Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his property or, if there is no such guardian, by a parent having legal custody, or, if there is no such parent by another person or agency having legal custody....” N.Y.Civ.Prac.L. & R. 1201 (McKinney 1995). To have legal custody, a parent must have physical custody. Otero on Behalf of Otero v. State, 159 Misc.2d 35, 602 N.Y.S.2d 501, 502 (1993). An incarcerated parent cannot have legal custody and therefore may not bring suit on behalf of an infant. Id. at 502. Since plaintiff John Bailey is currently incarcerated at Franklin Correctional Facility in Malone, N.Y., he is not competent to bring this action on his daughter's behalf. 7 For the foregoing reasons defendant Channel 9 news reporter “John Doe's” motion to dismiss is granted. Plaintiffs' claims against the defendant detectives arising out of their testimony at his trial or from the alleged filing of false police reports are also dismissed. Plaintiff's motion to amend the complaint is denied. The claims on behalf of Natasha Bailey are dismissed without prejudice. Plaintiff's applications for appointment of pro bono counsel are denied subject to renewal upon a showing sufficient to permit the determination required by Cooper v. S. Sargenti Co., Inc., 877 F.2d 170 (2d Cir.1989), concerning the merits of the case. *8 The Clerk is directed to mail a copy of the within to all parties. SO ORDERED. All Citations Not Reported in F.Supp., 1995 WL 548714 Footnotes 1 Though “John Doe” is not specifically identified in the complaint, process was served on Channel 9 at their offices at 445 Park Avenue, New York City, and was accepted by a person named Brenda Woodman. This Court has received a motion and supporting affidavit filed by attorneys for WWOR (Channel 9) on behalf of “John Doe.” The affidavit states that “Defendant ‘John Doe,’ Channel 9 News Reporter, respectfully requests that this court dismiss plaintiff's Complaint.” The defendant has not raised objections to either service or personal jurisdiction but, instead, to subject matter and to the merits of the case. By filing this motion, then, he has consented to personal jurisdiction. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 72 of 240
Bailey v. Tricolla, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 2 The statute reads in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.” 42 U.S.C. § 1983 (1988). 3 “(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: ... (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” 4 The Court declines to consider the instant complaint as a habeas petition under 18 U.S.C. § 2254, because it is impossible to determine whether the claims were properly exhausted. If Bailey intends to seek habeas relief, he should file an appropriate petition. 5 An infant is defined as a “person who has not attained the age of eighteen years.” N.Y.Civ.Prac.L. & R. 105 (McKinney 1994). 6 See Villafane v. Banner, 87 Misc.2d 1037, 387 N.Y.S.2d 183 (1976). 7 Generally, no statute of limitations will run against an infant until he or she attains the age of 18, the age of majority in New York. Section 208 of the NYCPLR in pertinent part reads, “If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies....” However, in an action for personal injuries sustained by the infant, the statute of limitations does not bar the adult representative from bringing suit on behalf of the infant. Hilburger v. Cottman, 196 Misc. 106, 91 N.Y.S.2d 721 (1949) (“to compel an infant ... to await h[er] majority before bringing an action because [s]he had failed to act within the generally prescribed statutory period would create an anomalous situation ... an infant's right of action is continuing and suit may be brought at any time during his minority.”). Here, since John Bailey cannot legally represent Natasha because of his incarceration, another representative is required. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 73 of 240
Beaman v. New York, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2026 WL 189446 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Lorenzo BEAMAN, Plaintiff, v. State of NEW YORK, et al., Defendants. 9:25-CV-1402 (ECC/MJK) | Signed January 22, 2026 Attorneys and Law Firms Lorenzo Beaman, Brooklyn, NY, Pro Se. DECISION and ORDER Elizabeth C. Coombe, United States District Judge I. INTRODUCTION *1 Plaintiff Lorenzo Beaman commenced this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”), and paying the required filing fee in full. Dkt. No. 1 (“Compl.”). 1 By Decision and Order entered on October 31, 2025, the Court reviewed the complaint in accordance with 28 U.S.C. § 1915A(b) and dismissed plaintiff's Section 1983 claims without prejudice as barred by the Eleventh Amendment, and for failure to state a claim upon which relief may be granted. Dkt. No. 5 (“October 2025 Order”). In light of plaintiff's pro se status, he was afforded an opportunity to submit an amended complaint. Id. at 12-14. Presently before the Court is plaintiff's amended complaint and supplemental supporting documents. Dkt. No. 6 (“Am. Compl.”); Dkt. No. 7 (“Supplemental Submission”). II. SUFFICIENCY OF THE AMENDED COMPLAINT A. The Complaint and October 2025 Order In his complaint, plaintiff asserted claims against the State of New York and Greene Correctional Facility based on allegations that he was assaulted by a fellow inmate while incarcerated at Greene Correctional Facility on December 21, 2017. See Compl. at 3-4 The complaint was construed to assert Eighth Amendment failure-to-protect claims against the named defendants. See October 2025 Order at 4. After reviewing the allegations in the complaint for sufficiency, the Court dismissed plaintiff's Section 1983 claims as barred by the Eleventh Amendment, and untimely. See October 2025 Order at 5-14. B. Review of the Amended Complaint The Court previously relied on 28 U.S.C. § 1915A(b) for its screening of the complaint because the pleading asserts allegations of wrongdoing that occurred during plaintiff's incarceration. See Compl. at 2-6; Dkt. No. 1-1 at 35-40. 2 The Court, however, also has the inherent authority to ensure that plaintiff has standing to pursue his claims, that subject matter jurisdiction exists, and that a case is not frivolous. See Rolle v. Berkowitz, No. 03-CV-7120, 2004 WL 287678, at *1 (S.D.N.Y. Feb. 11, 2004) (“[C]ourts within the Second Circuit have not hesitated to dismiss sua sponte claims brought by fee-paying pro se plaintiffs when it is clear such claims ‘presen[t] no arguably meritorious issue for [the courts’] consideration.’ ” (quoting Pillay v. INS, 45 F.3d 14, 17 (2d Cir.1995) (holding appellate court has authority to sua sponte dismiss a frivolous appeal brought by a fee- paying pro se plaintiff))); Cummings v. Giuliani, No. 00- CV-6634, 2000 WL 1597868, at * 2-3 (S.D.N.Y. Oct. 24, 2000) (dismissing sua sponte fee-paying pro-se plaintiff's §§ 1981, 1983 and 1985 claims that were clearly time-barred) (citing Pillay); Cook v. Sullivan Cnty. Fam. Ct. of New York State Unified Ct. Sys., No. 24-CV-03874, 2024 WL 3106248, at *2 (S.D.N.Y. June 20, 2024) (same); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee.”); Muller v. Costello, No. 94-CV-842, 1996 WL 191977, at *2 (N.D.N.Y. Apr. 16, 1996) (“Federal courts are under an independent obligation to examine their own subject matter jurisdiction.” (citing U.S. v. Hayes, 115 S. Ct. 2431, 2435 (1995)); Atl. Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) (“Although the parties do not address the Eleventh Amendment in their briefs, we raise it sua sponte because it affects our subject matter jurisdiction.”); Close v. New York, 125 F.3d 31, 38-39 (2d Cir. 1997) (“[U]nless New York waived its immunity, the district court lacked subject matter jurisdiction.”). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 74 of 240
Beaman v. New York, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 The amended complaint is identical to the original complaint, with the exception of a caption change. Compare Compl. with Am. Compl. Indeed, even the signature date on both pleadings is the same. Moreover, while plaintiff has filed additional documentation with his amended complaint related to his state court action and communications with the state court and his former attorney, see Dkt. Nos. 6-1, 6-2, 7, none of these filings present a basis for tolling the applicable limitations period by more than four years, or finding that the Eleventh Amendment's jurisdictional bar is inapplicable to plaintiff's Section 1983 claims against the State of New York and Greene Correctional Facility. Accordingly, and for the reasons set forth in the October 2025 Order, plaintiff's Section 1983 claims are dismissed as untimely, and for lack of subject matter jurisdiction. See, e.g., Collins v. Unified Ct. Sys. of New York, No. 91-CV-349, 1991 WL 111218, at *1 (N.D.N.Y. June 17, 1991) (“The complaint is frivolous; the court has seen essentially the same allegations made in the prior two suits; additionally, much of the complaint is barred by virtue of the applicable limitations period (three years), or by the 11th Amendment or by the doctrine of absolute judicial immunity.”), aff'd sub nom. Collins v. Unified Ct. Sys. NY, 962 F.2d 3 (2d Cir. 1992); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (action frivolous where “factual contentions are clearly baseless,” as when “the claim is based on an indisputably meritless legal theory,” e.g., where “a dispositive defense clearly exists on the face of the complaint”); Cummings v. Giuliani, No. 00-CV-6634, 2000 WL 1597868, at *2-3 (S.D.N.Y. Oct. 24, 2000) (dismissing sua sponte fee- paying pro se plaintiff's claims that were clearly time-barred); Islam v. Melisa, No. 18-CV-2535, 2020 WL 1452463, at *12 (E.D.N.Y. Mar. 24, 2020) (“The Court construes Islam as naming Dr. Melisa Jn. Pierre as a defendant in this action and dismisses Islam's claims against her as frivolous because they are clearly time-barred, ... having been brought over four years after Islam last interacted with Dr. Melisa[.]”); Castro v. United Sec. Inc., No. 10-CV-6152, 2011 WL 4916402, at *3 (S.D.N.Y. Oct. 17, 2011) (“[C]ourts within the Second Circuit consistently have held that lack of legal knowledge or legal assistance is not an extraordinary circumstance warranting equitable tolling.” (citation omitted)); Pino v. Ryan, 49 F.3d 51, 54 (2d Cir. 1995) (finding sua sponte dismissal of section 1983 claim based on statute of limitations “especially appropriate where ... the injuries complained of [by the pro se plaintiff] occurred more than five years before the filing of the Complaint”). III. CONCLUSION WHEREFORE, it is hereby ORDERED that this action alleging federal claims under Section 1983 is DISMISSED with prejudice. The Clerk is directed to terminate the defendants and close this case; and it is further ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff. IT IS SO ORDERED. All Citations Slip Copy, 2026 WL 189446 Footnotes 1 Plaintiff commenced this action in the Southern District of New York. By Order entered on September 30, 2025, the Honorable Edgardo Ramos of the Southern District of New York directed that this case be transferred to the Northern District of New York. Dkt. No. 3. Thereafter, this case was transferred to this District. Dkt. No. 4. 2 Plaintiff was not incarcerated when he commenced this action. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 75 of 240
Brown v. Peters, Not Reported in F.Supp. (1997) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1997 WL 599355 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Kenneth BROWN, Plaintiff, v. Andrew PETERS, Warden, Watertown Correctional Facility; Joseph Williams, Warden, Lincoln Work– Release Center; Francis J. Herman, Senior Parole Officer Interstate Bureau; T. Stanford, Senior Parole Officer; Deborah Stewart, Parole Officer; John Doe # 1, Parole Agent, Watertown Correctional Facility; John Doe # 2, Parole Agent, Lincoln Work Release Center; Susan Bishop, Director of Interstate Compact, South Carolina; Cecil Magee, Parole Officer, South Carolina; Frank Barton, Parole Officer, South Carolina; John McMahan, Parole Officer, South Carolina, Defendants. No. Civ.A. 95CV1641RSPDS. | Sept. 22, 1997. Attorneys and Law Firms Kenneth Brown, State Court Institute–Greene, Waynesburg, PA, plaintiff, pro se. Dennis C. Vacco, New York State Attorney General, The Capitol Albany, NY, for defendants Peters, Herman Stewart, Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant Attorney General, Carl N. Lundberg, Chief Legal Counsel, South Carolina Department of Probation, Columbia, SC, for defendants Bishop, Magee, Barton, McMahan, and Stanford, Carl N. Lundberg, of Counsel. DECISION AND ORDER POOLER, J. *1 The above matter comes to me following a Report– Recommendation by Magistrate Judge Daniel Scanlon, Jr., duly filed on April 17, 1997. Following ten days from the service thereof, the Clerk has sent me the entire file, including any and all objections filed by the parties herein. Plaintiff Kenneth Brown commenced this Section 1983 civil rights action on November 17, 1995. On February 12, 1996, Magistrate Judge Scanlon ordered Brown to submit an amended complaint alleging the specific acts committed by the individuals named as defendants which Brown claimed violated his constitutional rights. Brown filed an amended complaint on March 21, 1996. In his amended complaint, Brown alleged that defendants violated his rights under the Eighth and Fourteenth Amendments by failing to process properly his interstate compact paperwork, resulting in Brown being imprisoned pursuant to a parole hold when in fact he had never violated the conditions of his parole. For a more complete statement of Brown's claims, see his amended complaint. Dkt. No. 5. On August 5, 1996, defendants Peters and Williams made a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On August 19, 1996, defendants Bishop, Magee, Barton, and McMahan made a motion to dismiss the complaint against them or, in the alternative, for summary judgment. Dkt. No. 20. On October 17, 1996, defendants Herman, Stewart, and Stanford made a motion to dismiss for failure to state a claim. Dkt. No 34. On April 17, 1996, Magistrate Judge Scanlon recommended that all defendants' motions to dismiss be granted and that the complaint be dismissed. Dkt. No. 50. On June 9, 1997, Brown filed objections to the magistrate judge's report-recommendation, having been granted additional time in which to do so. Dkt. No. 52. In addition, Brown filed on June 9, 1997, a motion for leave to file a second amended complaint and a copy of his proposed amended complaint. Dkt. No. 53. I turn first to the last motion filed, Brown's motion for leave to amend his complaint a second time. Brown seeks to file a second amended complaint “setting forth in detail the personal involvement of each defendant and how their acts of commission and omission served to deprive plaintiff of Constitutionally secured rights.” Dkt. No. 53. The district court has discretion whether to grant leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). In exercising that discretion, the court should freely grant leave to amend when justice so requires. Fed.R.Civ.P. 15(a). However, the court need not grant leave to amend where it appears that amendment would prove to be unproductive or futile. Ruffolo, 987 F.2d at 131. Here, Brown moved to amend his complaint to add additional allegations against the named defendants. However, the additional allegations fail to cure the deficiency which Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 76 of 240
Brown v. Peters, Not Reported in F.Supp. (1997) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 forms the basis of defendants' motion to dismiss— the absence of defendants' personal involvement in a constitutional deprivation. Section 1983 imposes liability upon an individual only when personal involvement of that individual subjects a person to deprivation of a federal right. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective if it fails to allege personal involvement sufficient to establish that a supervisor was “directly and personally responsible for the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987). *2 Brown's proposed amended complaint alleges in conclusory fashion that defendants acted “in a grossly negligent and concerted manner which breached their duties owed to Plaintiff and is the proximate cause of [the violation of plaintiff's constitutional rights].” Proposed Am. Compl., at 3. Brown continues in the same vein, stating that defendants owed duties to plaintiff to carry out their jobs in a professional manner and they failed to carry out those duties appropriately. The complaint states that defendants held specific responsibilities, such as checking for outstanding warrants, which if performed properly should have alerted them to a problem. However, nowhere does the complaint set forth allegations that these defendants either participated directly in any constitutional infraction or that they were even aware of such an infraction. The proposed amended complaint merely alleges that these defendants failed in performing their supervisory and ministerial functions. “These bare assertions do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis, 1988 WL 78306, *2 (S.D.N.Y.). This plaintiff previously has had the opportunity to amend his complaint for the same reason asserted here, to allege personal involvement on the part of defendants. Brown's first amended complaint failed to accomplish that task, and it appears that even if allowed to amend again Brown would be unable to make the requisite allegations with sufficient specificity to sustain his complaint. Consequently, I find that amendment would be futile, and I deny Brown's motion for leave to amend his complaint. I turn now to the magistrate judge's report-recommendation and defendants' motions. The magistrate judge recommends that I grant defendants' motions and dismiss the complaint as to all defendants. The report-recommendation clearly describes the grounds on which the magistrate judge recommends dismissal as to each defendant. Fed.R.Civ.P. 72(b) requires the district judge to make a de novo determination on “any portion of the magistrate's disposition to which specific, written objection has been made.” Brown's objections fail to address directly any of the analysis. Brown's objections state (1) that he has been deprived of his constitutional rights; (2) that he has stated a cause of action; (3) that the court wrongly refused to appoint an attorney for him and wrongly stayed discovery pending the outcome of these motions; (4) that he seeks to file an amended complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b) (6) motion; (6) that he disagrees with the magistrate judge's recommendation to grant defendants' motions because the allegations in his complaint, which he repeats, show that his rights were violated; and (7) the text of the Fourteenth and Eighth Amendments. Even affording the objections the liberal reading required for pro se pleadings, I find that these objections fail to state any basis whatsoever, much less a specific one, for the court not to adopt the magistrate judge's rulings. They simply re-state the relief sought and the facts on which Brown grounds his complaint and conclude that the magistrate judge's conclusions are wrong. When the parties make only frivolous, conclusive, or general objections, the court reviews the report-recommendation for clear error. See Camardo v. General Motors Hourly–Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider objections which are frivolous, conclusive, or general and constitute a rehashing of the same arguments and positions taken in original pleadings); Chambrier v. Leonardo, 1991 WL 44838, *1 (S.D.N.Y.) (restatement of allegations already before the court and assertion that valid constitutional claim exists insufficient to form specific objections); Schoolfield v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.) (objections stating that magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report-recommendation); Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general objection that report does not address violation of petitioner's constitutional rights is a general plea that report not be adopted and cannot be treated as objection within the meaning of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169 (U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1 (1997) (when objections fail to address analysis directly, court reviews report-recommendation for clear error); Fed.R.Civ.P. 72(b), Advisory Comm. Note (when no specific, written objections filed, “court need only satisfy itself that there is Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 77 of 240
Brown v. Peters, Not Reported in F.Supp. (1997) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 no clear error on the face of the record in order to accept the recommendation”). *3 Because Brown fails to make specific objections or provide any basis for his general objections, I review the report-recommendation for clear error. After careful review, I conclude that the magistrate judge's report-recommendation is well-reasoned and is not clearly erroneous. 1 The magistrate judge employed the proper standard, accurately recited the facts, and reasonably applied the law to those facts. Consequently, I adopt the report-recommendation. CONCLUSION Because plaintiff's proposed amendment demonstrates that amendment would be futile, I deny plaintiff's motion for leave to amend his complaint. I approve the magistrate judge's recommendation and grant defendants' motions to dismiss. Plaintiff's complaint is dismissed in its entirety. IT IS SO ORDERED. ORDER and REPORT–RECOMMENDATION This matter was referred to the undersigned for report and recommendation by the Hon. Rosemary S. Pooler, United States District Judge, by Standing Order dated November 12, 1986. Currently before this Court are a number of motions. Defendants Peters and Williams have filed a motion to dismiss (dkt.13); defendants Bishop, Magee, Barton and McMahan have filed a motion for summary judgment, or in the alternative to dismiss (dkt.20); and defendants Herman, Stewart and Stanford also have filed a motion to dismiss (dkt.34). Plaintiff opposes these three motions (dkts.27, 29, 33, 38). Defendants Bishop, Magee and McMahan have filed a motion to stay discovery (dkt.41) and plaintiff has filed a motion to extend time (dkt.44) in which to file opposition to the latter motion for a stay of discovery. The Court addresses these issues seriatim. BACKGROUND Plaintiff's amended complaint, which he has brought pursuant to 42 U.S.C. § 1983, alleges the following facts. In October, 1991, plaintiff was incarcerated in the Watertown Correctional Facility in Watertown, New York. He applied for an interstate compact because he wanted to return to South Carolina to live with his common law wife, Pamela Reid. During the application process, he was interviewed by the facility's parole officer, identified only as defendant John Doe # 1. After signing the necessary papers, his application was forwarded to defendant Andrew Peters, the facility's superintendent, who reviewed, signed and forwarded the papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2; Exs. A, B. On or about January 15, 1992, while his compact was waiting for review at the Interstate Bureau, plaintiff was approved for work release and sent to the Lincoln Work Release Center in New York City. While at the center, plaintiff spoke to a parole officer, defendant John Doe # 2, and told him that he was seeking a compact that would return him to South Carolina upon his conditional release. Plaintiff claims the parole officer told him that he would handle the necessary paperwork, although the officer had had no experience with an interstate compact. Amend. Compl. at ¶¶ 3, 4. *4 Plaintiff, meanwhile, asked Reid whether any officials had contacted her in South Carolina regarding his prospective residence in that state. Upon discovering no one had contacted her, plaintiff asked a lawyer he knew, Navron Ponds, to inquire as to his compact status. In March, 1992, the lawyer spoke with defendant Susan Bishop, who is the director of the interstate compact program in South Carolina. Bishop allegedly told Ponds that plaintiff “was disapproved because there was a discrepancy about approving plaintiff['s] compact.” The “discrepancy” was the fact that plaintiff owed the state of South Carolina eighty-six days of confinement from a previous sentence. Plaintiff claims Bishop told Ponds to contact defendants Cecil Magee and Frank Barton, who worked for the South Carolina Parole Department. Sometime in March, 1992, Ponds made some calls to Barton and Magee. A verbal agreement was reached, and plaintiff, upon speaking with Barton and Magee was told that his compact had been approved. He also was told that he should report to the South Carolina Department of Parole upon being released. Amend. Compl. at ¶¶ 5–7. Prior to leaving the Lincoln Work Release Center, plaintiff processed paperwork related to his interstate compact. His paperwork was sent by Doe # 2 to defendant Joseph Williams, the superintendent of the center. Williams reviewed, signed and returned the paperwork to plaintiff. On May 1, 1992, Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 78 of 240
Brown v. Peters, Not Reported in F.Supp. (1997) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 upon his release from the center, plaintiff traveled to South Carolina. Three days later, he entered a South Carolina parole office and promptly was arrested because of the eighty- six days of confinement that he owed the state. Plaintiff's paperwork was given to defendant John McMahan, a parole officer. Plaintiff claims that McMahan never returned this paperwork to him. On May 20, 1992, the state of South Carolina revoked plaintiff's parole and plaintiff was returned to prison to serve the eighty-six days that he owed. When he asked McMahan what would happen to his one year of parole from New York, the officer allegedly told him that his New York parole would run concurrently with his South Carolina parole, and that when he finished his South Carolina parole, he would not owe any parole whatsoever. Plaintiff served the eighty-six days he owed and was released on July 31, 1992. Amend. Compl. at ¶¶ 8–10. In February, 1993, plaintiff was arrested on robbery charges in South Carolina. The charges ultimately were dropped, but he apparently encountered some difficulties regarding this arrest as a result of a parole hold that New York state had placed upon him. Bishop's office told him that it had nothing to do with his parole hold and that any problem that he had was between him and the state of New York. He talked to authorities in Albany, New York regarding the parole hold, but was not successful in his efforts to have the hold removed. On September 30, 1993, after had been extradited to New York as a fugitive from justice, plaintiff was given a preliminary hearing at Riker's Island, New York. The hearing officer found no probable cause that plaintiff had violated any condition of parole. He was released. Amend. Compl. at ¶¶ 11–14; Exs. C–J. *5 Plaintiff claims that he would not have suffered hardships if his interstate compact had been handled correctly. He alleges that defendant Deborah Stewart failed to follow up and see whether plaintiff had arrived in South Carolina. If she had, he argues, she would have discovered that he had been arrested upon his arrival. He alleges that defendant Francis Herman, a parole officer at the Interstate Bureau failed to do his job by not investigating plaintiff's violation reports. Amend. Compl. at ¶¶ 15–17; Exs. F–I. Plaintiff asserts that the foregoing amounts violations of his Eighth and Fourteenth Amendment rights, wherefore he both compensatory and declaratory relief. DISCUSSION A. Motion to Dismiss by Williams and Peters. Williams and Peters have filed a motion to dismiss plaintiff's complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds that it fails to state a claim upon which relief may be granted. In a Rule 12(b)(6) motion, all factual allegations in the complaint must be taken and construed in plaintiff's favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)). The Court's role is not to assess whether plaintiffs have raised questions of fact or demonstrated an entitlement to a judgment as a matter of law, as in a motion made pursuant to FED.R.CIV.P. 56 for summary judgment, but rather to determine whether plaintiff's complaint sufficiently alleges all of the necessary legal elements to state a claim under the law. See Christopher v. Laidlaw Transit, Inc. 899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v. New York City Transit Authority, 941 F.2d 119, 124 (2d Cir.1991)). Factual allegations in brief or memoranda may not be considered. Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The Court now turns to the issues presented. Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). As superintendents at New York State Correctional facilities, Williams and Peter may be found personally involved in the alleged deprivation of plaintiff's constitutionally protected rights by a showing that they: (1) directly participated in the infraction; (2) knew of the infraction, but failed to remedy the wrong; (3) created or continued a policy or custom under which unconstitutional practices occurred; or (4) were grossly negligent in managing subordinates who caused unlawful conditions or events. Id., (quoting Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also may be imposed against Williams or Peters with a showing of gross negligence or deliberate indifference to plaintiff's constitutional rights. Id. Absent some personal involvement by Williams or Peters in the allegedly constitutionally infirm conduct of their subordinates, neither can be held liable under § 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987). *6 Plaintiff has not provided any evidence linking either Williams or Peters to his alleged constitutional deprivations. All that plaintiff has alleged is that Williams and Peters, as superintendents, have reviewed and signed paperwork Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 79 of 240
Brown v. Peters, Not Reported in F.Supp. (1997) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 relating to plaintiff's compact. Though it has long been held that pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers” for the purpose of a motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972), plaintiff has not explained how the ministerial conduct of these two defendants was violative of the Constitution. Their motion to dimiss should be granted. B. Motion for Summary Judgment or to Dismiss by Bishop, Magee, Barton and McMahan. Bishop, Magee, Barton and McMahan have filed a motion for summary judgment, or in the alternative a motion to dismiss. The Court will treat their motion as a motion to dismiss. “[C]omplaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.” Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff has not alleged specifically how the conduct of these four defendants infringed upon his constitutional rights. In his amended complaint, he contends that defendants violated the Constitution by “continuously breaching [[[their] duty” to him. This language underscores the defect with the complaint: if it alleges anything at all, it alleges that defendants were negligent in handling plaintiff's interstate compact and parole. To state a cognizable § 1983 claim, the prisoner must allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence will not suffice. Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 620 (2d Cir.1996); Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not encompass a cause of action sounding in negligence). The Court finds that the claims against Bishop, Magee, Barton and McMahan should be dismissed. C. Motion to Dismiss by Herman, Stewart and Stanford. Plaintiff's claim against Stewart is that she failed to follow up and see whether plaintiff had arrived in South Carolina. Herman, he likewise asserts, failed to do his job because he did not investigate plaintiff's violation reports. Plaintiff has not alleged how these actions run afoul of the Constitution; and again, these claims seem to be grounded in negligence, which is not actionable under § 1983. Hayes, 84 F.3d at 620. Plaintiff's claim against Stanford must fail because his complaint literally fails to state a claim against that defendant. Aside from naming Stanford as a defendant, and alleging that he was the appointed Senior Parole Officer at plaintiff's September 30, 1993 revocation hearing at Riker's Island, plaintiff does not detail how Stanford violated his constitutional rights. Absent some personal involvement by Stanford in the allegedly constitutionally infirm conduct of his subordinates, he cannot be held liable under § 1983. Gill, 824 F.2d at 196. *7 Accordingly, the Court finds that Stanford, Stewart and Herman's motion to dismiss should be granted. D. Plaintiff's “John Doe” Claims. In so far as neither John Doe # 1 nor John Doe # 2 have been identified and served in this matter, the Court does not have jurisdiction over these parties and does not reach the merits of plaintiff's claims against them. E. Discovery Motions. Defendants Bishop, Magee and McMahan have filed a motion to stay discovery until the Court has made a ruling on their motion to dismiss. Plaintiff has filed a motion to extend the time in which he may file opposition to defendants' motion. Plaintiff, however, has filed his opposing response (dkt.47), therefore his instant discovery motion is denied as moot. In that the Court recommends granting defendants' motion to dismiss, discovery in this matter would be fruitless. Accordingly, defendants' motion for a stay of discovery pending the resolution of their motion to dismiss is granted. CONCLUSION WHEREFORE, based upon the foregoing analysis, it is hereby ORDERED, that plaintiff's motion to extend the time to file an opposing reply (dkt.44) is denied as moot; and it is further ORDERED, that defendants Bishop, Magee and McMahan's motion to stay discovery until their motion to dismiss is decided (dkt.41) is granted; and it is further RECOMMENDED, that defendants Peters and Williams' motion to dismiss (dkt.13) be granted; and it is further Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 80 of 240
Brown v. Peters, Not Reported in F.Supp. (1997) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 RECOMMENDED, that defendants Bishop, Magee, Barton and McMahan's motion to dismiss (dkt.20) be granted; and it is further RECOMMENDED, that defendants Herman, Stewart and Stanford's motion to dismiss (dkt.34) be granted. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten (10) 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 TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72. All Citations Not Reported in F.Supp., 1997 WL 599355 Footnotes 1 I note, however, that the report-recommendation would survive even de novo review. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 81 of 240
Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2007 WL 607341 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Paul CIPRIANI, Plaintiff, v. Harry C. BUFFARDI, Sheriff; Schenectady County Jail; Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants. No. 9:06-CV-0889(LEK/DRH). | Feb. 20, 2007. Attorneys and Law Firms Paul Cipriani, Plaintiff, pro se. DECISION and ORDER LAWRENCE E. KAHN, U.S. District Judge. *1 Presently before the Court is an amended complaint filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl. (Dkt. No. 10). This amended complaint was submitted in compliance with the Memorandum-Decision and Order issued by this Court on November 27, 2006 (“November Order”). Mem.-Decision and Order (Dkt. No. 7). In its November Order, the Court advised plaintiff that he must set forth facts demonstrating that Defendants were personally involved in a violation of Plaintiff's rights. Id. at 4. Plaintiff was also advised that in order to establish the liability of a municipality, he must allege a custom or policy which is the moving force behind the violation. Id. In his amended complaint, Plaintiff names thirteen defendants and asserts numerous claims against them arising from his confinement at Schenectady County Jail. Amended Compl. (Dkt. No. 10). The Court notes that plaintiff has not named “Schenectady County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in his amended Complaint. Therefore, “Schenectady County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby dismissed as defendants in this action. The Court also notes that Plaintiff's amended Complaint mentions “Mr. Booth” and “Mr. Purdy” only in the caption, and fails to allege any act or omission by these individuals. Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff. Gonzalez v. City of New York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96 CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement) and Taylor v. City of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because plaintiff has failed to allege any personal involvement on the part of defendants “Mr. Booth” and “Mr. Purdy”, they are hereby dismissed as defendants in this action. In his amended Complaint, Plaintiff alleges that the remaining Defendants committed various violations of his constitutional rights, including inadequate medical care, breach of doctor- patient confidentiality, excessive force, denial of due process in a disciplinary proceeding, and interference with the grievance process. Amended Compl. (Dkt. No. 10). Based on the foregoing, Plaintiff's amended complaint as against the remaining Defendants is accepted for filing. Plaintiff is advised, however, that the U.S. Marshals cannot effect service on a “John Doe” defendant. In the event that plaintiff wishes to pursue this claim against the “John Doe” defendants named in the amended Complaint, he must take reasonable steps to ascertain their identities. Plaintiff may then file a Motion to amend his complaint and seek leave of the Court to add such individuals, by name, as defendants to this lawsuit. Plaintiff is further advised that if these individuals are not timely served, the action will be against them will be dismissed. *2 WHEREFORE, it is hereby ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are DISMISSED as defendants in this action, and it is further ORDERED, that the Clerk revise the docket to add “Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr. Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe # 7,” “John Doe # 10,” and “Loraine Walker” as defendants in this action, and it is further Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 82 of 240
Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 ORDERED, that the Clerk issue summonses naming the remaining defendants and forward them, along with copies of the amended Complaint (Dkt. No. 10), to the United States Marshal for service upon the defendants, together with a copy of this Order. 1 The Clerk shall also forward a copy of the summons and amended Complaint by mail to the County Attorney for Schenectady County, together with a copy of this Order, and it is further ORDERED, that a formal response to Plaintiff's amended Complaint be filed by Defendants or their counsel as provided for in Rule 12 of the Federal Rules of Civil Procedure subsequent to service of process on Defendants, and it is further ORDERED, that Plaintiff take reasonable steps to ascertain the identities of any other individual(s) that purportedly violated Plaintiff's civil and/or constitutional rights and, if appropriate, file a Motion to amend his complaint and add such individuals, by name, as defendants to this lawsuit, and it is further ORDERED, that all pleadings, motions and other documents relating to this action must bear the case number assigned to this action and be filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must be accompanied by a certificate showing that a true and correct copy of it was mailed to all opposing parties or their counsel. Any document received by the Clerk or the Court which does not include a proper certificate of service will be returned, without processing. Plaintiff must comply with requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions, which must be returnable before the assigned Magistrate Judge with proper allowance for notice as required by the Rules. Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel of any change in his address; his failure to do so will result in the dismissal of this action. All motions will be decided on submitted papers without oral argument unless otherwise ordered by the Court; and it is further ORDERED, that the Clerk serve a copy of this Order on plaintiff by regular mail. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2007 WL 607341 Footnotes 1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt. No. 7). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 83 of 240
Crown v. Wagenstein, Not Reported in F.Supp. (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1998 WL 118169 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Lakim CROWN, Plaintiff, v. Warden WAGENSTEIN; Parker T. # 10639 of Emergency Response Unit, et al., Defendants. No. 96 CIV. 3895(MGC). | March 16, 1998. Attorneys and Law Firms Lakim Crown, Brooklyn, for Plaintiff, Pro Se. Paul A. Crotty, Esq., Corporation Counsel of the City of New York, Attorney for Defendants Wangenstein and Parker, New York, By Renee R. Nebens, Esq. OPINION AND ORDER CEDARBAUM, J. *1 This is an action for damages brought by a pro se plaintiff pursuant to 42 U.S.C. § 1983. Defendant Wangenstein moves, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint for failure to state a claim upon which relief can be granted against him in either his personal or official capacity. For the reasons discussed below, defendant's motion is granted. The complaint alleges that on November 28, 1995, while plaintiff was incarcerated at New York City's Otis Bantum Correctional Center (“OBCC”), plaintiff was assaulted by a number of correction officers. (Compl. at 3–4). As a result, plaintiff alleges that he sustained injuries to his head, neck, back, and right leg. (Compl. at 4). In addition to the officers involved in the assault, plaintiff sues Wangenstein, the warden of OBCC at the time of the alleged assault. Discussion A motion to dismiss for failure to state a claim must be granted if, when viewed in the light most favorable to the plaintiff and when all allegations of the complaint are accepted as true, it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief. Bolt Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). In addition, a complaint and supporting papers prepared by a pro se plaintiff must be read liberally and interpreted to “raise the strongest arguments they suggest.” Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). When an individual defendant is sued under § 1983, that defendant's personal involvement in the alleged constitutional deprivation is a prerequisite to an award of damages. See Wright v.. Smith, 21 F.3d 496, 501 (2d Cir.1994). For a claim under § 1983, a complaint sufficiently alleges personal involvement of a supervisory official if it alleges one of the following: (a) direct participation in the alleged wrong; (b) failure to remedy a violation after receiving notice of it; (c) creation of a policy or custom under which unconstitutional practices occur; or (d) grossly negligent management of subordinates who cause the constitutional violation. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). A § 1983 claim against a municipal official in his official capacity is treated as a claim against the municipality itself. Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). Section 1983 imposes liability on municipalities only when the action that is alleged to be unconstitutional implements or executes an official policy or custom. See Monell v. Department of Social Services, 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). From the complaint, it is unclear whether Wangenstein is being sued in his personal or official capacity. However, pro se complaints, if possible, should be construed as asserting both claims. Jackson v. Dinkins, 1995 WL 657075 at *1 (S.D.N.Y. Nov.8, 1995)(citing Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir.)(“a plaintiff who has not clearly identified in her complaint the capacity in which the defendant is sued should not have the complaint automatically construed as focusing on one capacity to the exclusion of the other”), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993)). *2 The complaint does allege an assault by certain members of the OBCC Emergency Response Unit. (Compl. at 3–4). It alleges that while the plaintiff was making a telephone call, members of the Emergency Response Unit entered housing area 1N and defendant Parker verbally harassed the plaintiff, and with the assistance of other members of the Emergency Response Unit, assaulted him. (Compl. at 3–4). However, the complaint does not allege the personal involvement of Warden Wangenstein. The complaint mentions Warden Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 84 of 240
Crown v. Wagenstein, Not Reported in F.Supp. (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Wangenstein only in the caption, and fails to allege any act or omission by Wangenstein. See Taylor v. City of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)(Edelstein, J.)(finding mere inclusion of warden's name in a complaint insufficient to allege personal involvement). As for Warden Wangenstein's liability in his official capacity, the complaint fails to allege a municipal policy or custom that defendant was executing, or that such a policy or custom caused the alleged violation of the plaintiff's constitutional rights, as required by Monell. The absence of any such allegation prevents a finding of liability for defendant Wangenstein in his official capacity. See Monell, 436 U.S. at 694. Conclusion Because the complaint fails to state a claim against Warden Wangenstein upon which relief can be granted, the motion to dismiss defendant Wangenstein is granted. SO ORDERED All Citations Not Reported in F.Supp., 1998 WL 118169 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 85 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2017 WL 2560008 Only the Westlaw citation is currently available. United States District Court, S.D. New York. John DERAFFELE, Plaintiff, v. CITY OF NEW ROCHELLE, Defendant. No. 15-CV-282 (KMK) | Signed 06/13/2017 Attorneys and Law Firms John DeRaffele, New Rochelle, NY, Pro Se. Steven C. Stern, Esq., David A. Gold, Esq., Sokoloff Stern LLP, Carle Place, NY, Counsel for Defendant. OPINION & ORDER KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE *1 John DeRaffele (“Plaintiff”), proceeding pro se, filed this Action pursuant to 42 U.S.C. § 1983, alleging that the City of New Rochelle (the “City” or “Defendant”) violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments. (See Am. Compl. (Dkt. No. 56).) Before the Court is Defendant's Motion To Dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) (6) (the “Motion”). (See Dkt. No. 60.) For the reasons to follow, Defendant's Motion is granted. 1 I. Background A. Factual Background Plaintiff's Amended Complaint contains an abbreviated factual background as compared to Plaintiff's initial Complaint in this Action. (Compare Am. Compl. ¶¶ 4–23, with Compl. 5–14.) 2 The following allegations are taken from Plaintiff's Amended Complaint and are assumed true for the purpose of resolving the instant Motion. In December 1982, Plaintiff purchased the property at 867 Weaver Street, New Rochelle, New York (“867 Weaver Street”) as “a pre-existing non-conforming home as dictated by the 1955 zoning ordinance.” (Am. Compl. ¶ 2.) Plaintiff avers that “[f]rom 1955 to present, no Certificate of Occupancy has ever been issued for ... 867 Weaver Street.” (Id. ¶ 7.) In 2007, the property adjacent to 867 Weaver Street “consist[ed] of 16 acres, two single-family homes, [a] barn, [a] garage[,] ... [a] commercial building[,] and [a] golf range.” (Id. ¶ 8.) This land was sold to a developer to build a “26 single family home sub[ ]division.” (Id.) Access to this adjacent property was through Plaintiff's driveway and “Plaintiff believed an easement was in effect at the time of his purchase and ended upon the sale of [the] adjacent property in 2007.” (Id.) Plaintiff “agreed to [a] limited use [by] the developer ... until [the developer] could put in his own entrance.” (Id.) When the work on the adjacent property's driveway was completed, the developer “refused to stop using Plaintiff's driveway as a construction road.” (Id. ¶ 9.) Plaintiff thus complained to the City Building Inspector, Paul Vacca (“Vacca”), who “refused to take any action against the developer,” and therefore “cause[d] the continuation of trespassing of heavy duty trucks and equipment through Plaintiff's property.” (Id.) Due to the inaction, Plaintiff approached City Manager Charles Strome and Mayor Noam Bramson about the developer's use of his driveway. (See id.) *2 On November 12, 2010, one of Plaintiff's tenants “called the fire department when their carbon monoxide alarm went off.” (Id. ¶ 10.) Plaintiff contends “[i]t was a simple alarm” to which “one fire truck responded and within minutes the problem was corrected.” (Id.) However, Plaintiff's tenants were precluded from reentering the home for approximately two hours. (See id.) Vacca then arrived on the scene and “went through ... Plaintiff's house without a search warrant or permission.” (Id. ¶ 11.) Vacca instructed Plaintiff to come to his office on November 16, 2010. (See id.) The following day, Vacca sent an inspector to “inspect the outside of ... Plaintiff's house and talk to the tenants on the third floor,” which Plaintiff contends resulted in “additional tickets under code 111-8.” (Id. ¶ 12.) At the November 16, 2010 meeting, Vacca told Plaintiff that “he [could not] find any files for 867 Weaver Street,” but that he was “issuing five tickets based on a building card in the City's files.” (Id. ¶ 13 (internal quotation marks omitted).) Plaintiff continued to seek files pertaining to his property, (see id. ¶¶ 13–14), but was ultimately told to file a freedom of information law (“FOIL”) request, (see id. ¶ 15). On January 15, 2011, Plaintiff met with City Clerk Benny Giles (“Giles”) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 86 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 for approximately two hours to review files, after which both Plaintiff and Giles concluded that “no files for 867 Weaver Street existed.” (Id. ¶ 16.) On February 15, 2011, Plaintiff was informed that files were in fact located and the next day, Plaintiff was given “a brand new folder with several pieces of paper in it.” (Id. ¶ 18.) Plaintiff ultimately determined that the files were “bogus,” that he had already inspected them, and that Giles “should be ashamed of himself.” (Id.) The prosecution against Plaintiff for the housing violations proceeded to trial before Judge Kettner in the City Court of New Rochelle (the “City Court”) in May 2012. (See id. ¶ 21.) Plaintiff asserts that the trial lasted approximately two years and resulted in a $12,900 fine against Plaintiff. (See id. ¶ 22.) Plaintiff paid the fine and immediately appealed the decision. (See id. ¶ 23.) Plaintiff seeks an “order ... [d]eclaring that Plaintiff's rights were violated under the First, Fourth, Eighth[,] and Fourteenth Amendment[s],” as well as monetary damages in the amount of five million dollars, and punitive damages. (Id. at 21–22.) B. Procedural History Plaintiff commenced the instant Action on January 15, 2015. (See Dkt. No. 1.) Pursuant to a Scheduling Order adopted by the Court on April 15, 2015, (see Dkt. No. 27), the City and former defendants filed two motions to dismiss, which were fully briefed on July 13, 2015, (see Dkt. Nos. 32–37, 40, 42, 44–45). In an Opinion & Order (“Opinion”) dated March 30, 2016, the Court granted the motions and granted Plaintiff leave to file an Amended Complaint. (See Dkt. No. 46.) Plaintiff filed his Amended Complaint on July 15, 2016, asserting claims only against the City. (See Dkt. No. 56.) On September 9, 2016, the City filed the instant Motion To Dismiss and accompanying papers, (see Dkt. Nos. 60–63), and on September 22, 2016, Plaintiff filed his opposition, (see Dkt. No. 64). On September 30, 2016, Plaintiff filed a Motion to Submit Supplemental Information Requested by the Court, attaching the decision of the Appellate Division in People v. DeRaffele, 43 N.Y.S.3d 667 (App. Div. 2016), issued September 20, 2016. (See Dkt. No. 65.) In the decision, the Appellate Division reversed the June 19, 2014 judgment of Judge Kettner, “remit[ed] the matter to the City Court for a new trial before a different judge,” and remitted the $12,900 fine. DeRaffele, 43 N.Y.S.3d at 671. On November 7, 2016, Defendant filed its papers in reply. (See Dkt. Nos. 69–70.) On November 17, 2016, without prior permission of the Court, Plaintiff filed sur-reply papers. (See Dkt. Nos. 76–77.) Plaintiff additionally filed a document on February 15, 2017, entitled “Supplemental Information to Court,” attaching over 100 pages of exhibits. (See Dkt. No. 78.) II. Discussion A. Standard of Review *3 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration, citation, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks omitted). Instead, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claim[ ] across the line from conceivable to plausible, the[ ] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). In addition, “when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 87 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 89, 94 (2007) (per curiam). Further, “[f]or the purpose of resolving [a] motion to dismiss, the [c]ourt ... draw[s] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). “In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Hendrix v. City of New York, No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same). Where, as here, a plaintiff proceeds pro se, the court must “construe[ ] [his] [complaint] liberally and interpret[ ] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks omitted); see also Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at *12 (S.D.N.Y. Dec. 2, 2013) (same), aff'd sub nom. Farzan v. Genesis 10, 619 Fed.Appx. 15 (2d Cir. 2015). In deciding a motion to dismiss a pro se complaint, it is appropriate to consider certain “materials outside the complaint to the extent that they are consistent with the allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including “documents that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted); see also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a court may consider “factual allegations made by a pro se party in his papers opposing the motion” (italics omitted)). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.” (italics and internal quotation marks omitted)). B. Analysis Plaintiff's Amended Complaint asserts claims only against the City. 3 Plaintiff alleges that Defendant violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments. (See generally Am. Compl.) 1. First Amendment *4 Plaintiff asserts that “his [c]ivil [r]ights under the First Amendment [were] violated because ... Plaintiff could never petition the [C]ity ... for redress after experiencing the conspiracy that took place ... from ... November 12, 2010 ... until the trial ended on June 12, 2014.” (Id. ¶ 25.) Plaintiff questions how he could “ever trust the fire department, police department, building department or court system in the [C]ity of New Rochelle after being treated in this manner.” (Id.) Plaintiff further avers that his First Amendment rights were violated by the City “through its employees” because they were “aware of what was going on and took no action to stop it.” (Id.) In response, Defendant contends that “Plaintiff pleads no facts demonstrating the City or its employees interfered with his right to petition the government.” (Mem. of Law in Supp. of Def.'s Mot. To Dismiss (“Def.'s Mem.”) 10 (Dkt. No. 61).) “[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” Bill Johnson's Rests., Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983); see also Hamilton v. Fischer, No. 12-CV-6449, 2015 WL 8207439, at *2 (W.D.N.Y. Dec. 7, 2015) (“The Supreme Court has ‘made explicit that the [First Amendment] right to petition extends to all departments of the Government, and that the right of access to the courts is but one aspect of the right of petition.’ ” (alterations and some internal quotation marks omitted) (quoting BE & K Constr. Co. v. N.L.R.B., 536 U.S. 516, 525 (2002))). Plaintiff was afforded a full trial before Judge Kettner. To the extent Plaintiff was displeased with the outcome of that trial, he had —and took advantage of—the right to appeal the decision. Indeed, Plaintiff recently succeeded on appeal, was awarded a new trial before a different City Court judge, and the fines were remitted. See DeRaffele, 43 N.Y.S.3d at 671. Moreover, any claim that Plaintiff was deprived of his right to petition the government for redress is belied by the fact of the filing of this Action. The crux of Plaintiff's right-to-petition claim appears to be a claim for retaliatory prosecution under the First Amendment. (See Am. Compl. ¶ 25 (“Vacca sought revenge against ... Plaintiff for his complaints sent to ... Vacca's boss, the City Manager, Mr. Charles Strome and Mayor Noam Bramson Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 88 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 regarding the mishandling of Plaintiff's complaints regarding his driveway.”).) As noted in the Court's prior Opinion, this claim is barred by the statute of limitations. (See Opinion 18 n.14 (“[S]uch a cause of action would have accrued on November 16, 2010 when the citations were issued ... [and] that claim would have expired three years later on November 16, 2013, long before the commencement of the instant Action.” (citations omitted)).) Plaintiff has provided no additional information to justify the tolling of the statute of limitations. Accordingly, Plaintiff's claims under the First Amendment are dismissed. 2. Fourth Amendment In its prior Opinion, the Court found that “Plaintiff's Fourth Amendment claim clearly accrued on November 12, 2010, the date on which the allegedly illegal search and entry occurred,” and therefore was “time-barred unless there [was] a basis for tolling of the statute of limitations.” (Opinion 19 (citation omitted).) Equitable tolling of the statute of limitations is applied “only in ‘rare and exceptional circumstances,’ where ... ‘extraordinary circumstances’ prevented a party from timely performing a required act, and the party ‘acted with reasonable diligence throughout the period he sought to toll.’ ” Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (alteration omitted) (quoting Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004)). Among these circumstances are “[f]raudulent or deceptive acts on the part of [the] defendants ..., but only to the extent that the fraud concealed the existence of [the] plaintiff's cause of action and only for as long as the fraud or deception actually prevented the plaintiff from knowing or having reason to know that he has been injured.” Verdon v. Consol. Rail Corp., 828 F. Supp. 1129, 1140 (S.D.N.Y. 1993). *5 In his Amended Complaint, Plaintiff provides no facts warranting tolling of the limitations period, but rather reiterates the allegations that “Vacca entered [Plaintiff's] home without probable cause or a search warrant.” (Am. Compl. ¶ 27.) As the Court previously noted, “Plaintiff does not allege any [facts suggesting fraud concealed the existence of Plaintiff's claims] and, to the contrary, suggests that he knew of the purported violations at the time they occurred.” (Opinion 20.) Indeed, Plaintiff acknowledges that he was present at the time of the search and entry, (see Am. Compl. ¶ 11), and thus, it is clear that on November 12, 2010, he knew “of the injur[ies] which [are] the basis of his [A]ction,” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (internal quotation marks omitted); accord Hueber v. McCune, No. 14-CV-49, 2014 WL 2047763, at *4 (W.D.N.Y. May 19, 2014) (“In the context of an allegedly illegal entry into an individual's home, the plaintiff's claim accrues when the plaintiff knows or should have known that the entry occurred.”), aff'd, 589 Fed.Appx. 9 (2d Cir. 2014). Therefore, for the reasons stated in the Court's prior Opinion, Plaintiff's Fourth Amendment claims are dismissed. (See generally Opinion 19–21.) 3. Eighth Amendment In his Amended Complaint, Plaintiff newly asserts that the City violated his rights under the Eighth Amendment when it “levied excessive fines of $12,900 for five violations against ... Plaintiff.” (Am. Compl. ¶ 29.) The Court agrees with Defendant that Plaintiff's Eighth Amendment claim is moot. (See Reply Mem. of Law in Further Supp. of Def.'s Mot. To Dismiss 8 (Dkt. No. 70).) As noted, the Appellate Division reversed the conviction of Plaintiff, ordered a new trial, and ordered remittance of any fines Plaintiff paid. See DeRaffele, 43 N.Y.S.3d at 671. “A case becomes moot ... when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Am. Freedom Def. Initiative v. Metro. Transp. Auth., 815 F.3d 105, 109 (2d Cir. 2016) (internal quotation marks omitted). Whether excessive or not, Plaintiff has been returned the $12,900. Thus, the relief Plaintiff seeks is now moot and accordingly, his Eighth Amendment claim is dismissed. See, e.g., Air Espana v. Brien, 165 F.3d 148, 153 (2d Cir. 1999) (finding that the plaintiff's claims as to “fines that were canceled ... are moot”). 4. Fourteenth Amendment In the Amended Complaint, Plaintiff identifies 10 ways in which his “rights under the Fourteenth Amendment were violated.” (Am. Compl. ¶ 31.) These alleged violations include: (1) the City Court's “grant[ing of] the Motion in Limine”; (2) “[t]he conspiracy that was formed by ... Vacca and included numerous department heads that lied under oath to protect ... Vacca's false testimony and evidence”; (3) “[t]he filing of false documents during the trial”; (4) “[t]he delay of the trial[,] violating Plaintiff's right to a speedy trial”; (5) “[t]he [City Court] sustaining ... the Prosecutor[’s] (hundreds) of objections in order to prevent the truth from Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 89 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 being revealed”; (6) the City Court's “[r]efusal to have [the government's] witness declared a hostile witness”; (7) the City Court's “[r]efusal to grant a mistrial”; (8) the City Court's “refus[al] to acknowledge judicial review of laws”; (9) the City Court's “refus[al] to acknowledge the truthful testimony of Plaintiff's witnesses”; and (10) the City Court's “changing the [b]urden of [p]roof.” (Id.) In his opposition to Defendant's Motion, Plaintiff also argues that the “due process claim stems from the fact that the City did not allow a notice to cure prior to writing the five tickets.” (Reply in Opp'n to Mem. in Supp. of Mot. To Dismiss (“Pl.'s Opp'n”) 26 (Dkt. No. 64).) Each of Plaintiff's claims involves conduct effected by former defendants Judge Kettner and prosecutor Murphy, with the exception of the second claim, alleging the existence of a conspiracy between former defendants Vacca, Whittemore, Kelly, Murphy, and Judge Kettner. As detailed in the Court's prior Opinion, such individuals have judicial, prosecutorial, and testimonial immunity, (see generally Opinion 21–28), and as explained in the Court's prior Opinion and infra, the City cannot be held liable for the conduct of these employees. 4 Moreover, to the extent these claims involve alleged irregularities during the trial, they could be and, in fact, were addressed on appeal by the Appellate Division. 5. Monell *6 Defendant contends that Plaintiff has failed to state a claim pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), as “[P]laintiff suffered no violation of his constitutional rights.” (Def.'s Mem. 17.) Additionally, Defendant argues that “[t]here are no factual allegations that the alleged wrongful conduct took place pursuant to some municipal policy, practice, or custom,” and “[P]laintiff does not allege that any final policymaking official took action against him.” (Id.) In its prior Opinion, the Court found that because “Plaintiff ha[d] failed to state a constitutional claim against any individual Defendant, ... the Complaint [could not] satisfy th[e] prerequisite to municipal liability.” (Opinion 33 (internal quotation marks omitted).) Moreover, the Court held that “even if any underlying cause of action had survived, Plaintiff ha[d] not plausibly alleged a Monell claim against the City, necessitating dismissal on this independent basis as well.” (Id. at 34.) 5 Plaintiff has failed to cure the deficiencies identified in his initial Complaint. Plaintiff's Amended Complaint still “does not plead the existence of a municipal policy or custom at all,” (id.), but rather realleges the existence of a conspiracy in which the City “knowingly allow[ed] its employees ... to falsely charge Plaintiff with [five] violations, ... enlist[ed] other department heads to lie and present false reports against Plaintiff ..., [and] enlisted the help of ... Judge ... Kettner[ ] to ensure a victory on [the City's] behalf,” (Am. Compl. ¶ 1). It is well established that a Monell claim cannot lie in the absence of an underlying constitutional violation. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Monell does not provide a separate cause of action ...; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.”); Stewart v. Schiro, No. 13-CV-3613, 2015 WL 1854198, at *16 (E.D.N.Y. Apr. 22, 2015) (explaining that where “the [c]ourt has already determined that [the] [p]laintiff failed to demonstrate an underlying constitutional violation...., the Monell claim necessarily fails”); Thomas v. Westchester County, No. 12-CV-6718, 2013 WL 3357171, at *6 (S.D.N.Y. July 3, 2013) (“Absent an underlying constitutional violation, a Monell claim cannot lie.”). As detailed supra, Plaintiff has failed to allege a constitutional violation pursuant to the First, Fourth, Eighth, or Fourteenth Amendments. See Claudio v. Sawyer, 675 F. Supp. 2d 403, 408 (S.D.N.Y. 2009) (“Under Second Circuit case law, ... a prerequisite to municipal liability under Monell is an underlying constitutional violation by a state actor.”), aff'd, 409 Fed.Appx. 464 (2d Cir. 2011). Once a “district court properly [finds] no underlying constitutional violation, its decision not to address the municipal defendants' liability under Monell [is] entirely correct.” Segal, 459 F.3d at 219; see also Bolden v. County of Sullivan, 523 Fed.Appx. 832, 834 (2d Cir. 2013) (summary order) (“[B]ecause the district court properly found no underlying constitutional violation, its decision not to address the [c]ounty defendants' liability under Monell was correct.”); Lener v. Hempstead Pub. Sch., 55 F. Supp. 3d 267, 283 n.14 (E.D.N.Y. 2014) (“[W]hen a plaintiff lacks any underlying claim of a deprivation of a constitutional right, the claim of municipal liability on the part of the municipal defendant must be dismissed as well.”). *7 In his opposition to Defendant's Motion, Plaintiff—for the first time—contends that “[t]he conspiracy was a common practice of the City of New Rochelle” and that “Vacca ... [and a] task force le[ ]d by Mr. Joseph Girardi ... would go through Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 90 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 every house in [W]est New Rochelle, enter the premises without a search warrant and then ticket the owner for illegal multi-families when in fact these houses were legal non- conforming pre-existing multi-family houses.” (Pl.'s Opp'n 29–30.) 6 Under Monell, “an act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law,” Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997), which is to say, that it is a “longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local government entity,” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989); see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting that a municipality's custom “need not be memorialized in a specific rule or regulation”). Therefore, a plaintiff may establish municipal liability by demonstrating that a municipality “indirectly caused the misconduct of a subordinate municipal employee by acquiescing in a longstanding practice or custom which may fairly be said to represent official policy.” Miller v. County of Nassau, 467 F. Supp. 2d 308, 314 (E.D.N.Y. 2006). To prevail on this theory of municipal liability, however, a plaintiff must prove that the custom at issue is permanent and well settled. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (noting that the Supreme Court “has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage with the force of law’ ”) (some internal quotation marks omitted) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167– 68 (1970)). As the Supreme Court emphasized in Monell, Congress enacted § 1983 to impose liability on municipalities “because of the persistent and widespread discriminatory practices of state officials,” and out of recognition that such practices could become “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” 436 U.S. at 691 (some internal quotation marks omitted). Here, Plaintiff's single conclusory statement in his opposition that “the conspiracy was a common practice” is not sufficient to state a claim for Monell liability under § 1983. See Gordon v. City of New York, No. 10-CV-5148, 2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29, 2012) (“[M]ere conclusory references to a policy or custom, with no supporting facts, will not suffice to state a claim of § 1983 municipal liability.”); see also Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991) (“[O]ur prior cases suggest that an allegation of municipal policy or custom would be insufficient if wholly conclusory.”); 5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268, 299 (S.D.N.Y. 2009) (dismissing Monell claim because the plaintiffs' “assertion that the [c]ity ha[d] an unconstitutional policy [was] based on nothing more than their unsupported supposition”). The alleged “practice” of visiting “every house in [W]est New Rochelle,” conducting purportedly warrantless searches, and ticketing owners for “legal non-conforming” uses, (Pl.'s Opp'n 30), does not rise to the type of “permanent, or close to permanent” practice which can trigger Monell liability, Davis v. City of New York, 228 F. Supp. 2d 327, 346 (S.D.N.Y. 2002), aff'd, 75 Fed.Appx. 827 (2d Cir. 2003) (explaining that “[w]idespread means that [the unconstitutional acts in question] are common or prevalent throughout the [government body]; well-settled means that the [unconstitutional acts in question] have achieved permanent, or close to permanent, status”). Furthermore, Plaintiff has not sufficiently alleged that a City policymaker was responsible for the alleged unconstitutional practice. See Pignone v. Village of Pelham Manor, No. 10- CV-2589, 2014 WL 929805, at *4 (S.D.N.Y. Mar. 6, 2014) (noting that “[a] plaintiff bears the burden of establishing an official's status as a final policymaker with proof of the official's scope of employment and his role within the municipal or corporate organization”); cf. Dellutri v. Village of Elmsford, 895 F. Supp. 2d 555, 568 (S.D.N.Y. 2012) (“[The] [p]laintiff only alleges that the inspector and assistant inspector issued a notice of violation. Without more, this does not demonstrate that these individuals exercised final policymaking authority.”). Indeed, even if the Court were to assume that either Vacca or Joseph Girardi were policymakers for the City, Plaintiff would need to demonstrate that they were “policymaker[s] with respect to the particular issue involved here” in order to hold the City liable for their actions. Baity v. Kralik, 51 F. Supp. 3d 414, 437 (S.D.N.Y. 2014) (internal quotation marks omitted). As the Court noted in its prior Opinion, Plaintiff is unable to do so, as “ ‘the act of issuing citations cannot be said to be a matter of policymaking.’ ” (See Opinion 35–36 n.26 (quoting Emanuele v. Town of Greenville, 143 F. Supp. 2d 325, 335 (S.D.N.Y. 2001)).) *8 To the extent Plaintiffs opposition identifies City Manager Strome as a policymaker because he “became aware of the conspiracy and did nothing to stop it and gave his formal approval,” (Pl.'s Opp'n 30), Plaintiff offers no factual support for this boilerplate assertion. In any event, as noted above, Plaintiffs failure to establish “any underlying claim Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 91 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 of a deprivation of a constitutional right” requires that his “claim of municipal liability on the part of the [City] ... be dismissed.” Lener, 55 F. Supp. 3d at 283 n.14. In the absence of sufficient facts to establish municipal liability, the Court dismisses all claims against the City. III. Conclusion In light of the foregoing analysis, the Court grants Defendant's Motion To Dismiss Plaintiffs Amended Complaint. Because Plaintiff has already amended his Complaint in response to a decision on the merits of his claims, but has still failed to state a claim, the Amended Complaint is dismissed with prejudice. See Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff was not entitled to “a third go-around”); Melvin v. County of Westchester, No. l4- CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29, 2016) (granting motion to dismiss with prejudice where “[the] [p]laintiff has already had two bites at the apple, and they have proven fruitless” (alteration and internal quotation marks omitted)). The Clerk of Court is respectfully requested to terminate the pending Motion, (see Dkt. No. 60), and close this case. SO ORDERED. All Citations Not Reported in Fed. Supp., 2017 WL 2560008 Footnotes 1 Plaintiff initially brought this Action against the City, Benny Giles, Douglas Kelly, Brian Murphy, Louis Chipper Perone, Charles Strome, Paul Vacca, Daniel Whittemore, James Generoso, and Judge Susan Kettner, alleging that all defendants violated his constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments. (See Compl. (Dkt. No. 1).) In an Opinion & Order (“Opinion”) issued March 30, 2016, the Court granted the City's and former defendants' motions to dismiss and granted Plaintiff leave to file an Amended Complaint. (See Opinion 36 (Dkt. No. 46).) Plaintiff filed the instant Amended Complaint on July 15, 2016, naming only the City as Defendant. (See Am. Compl.) 2 For a fuller recitation of the relevant factual background, see the Court's prior Opinion. (See Opinion 2–5.) 3 While Plaintiff continues to detail the allegedly wrongful acts of City employees, the “Introduction,” “Nature of the Suit,” and “Parties” sections of Plaintiff's Amended Complaint make clear that Plaintiff intends only to name the City as Defendant. (See Am. Compl. 1 (“Plaintiff ... brings this suit against the City of New Rochelle....”); id. ¶ 1 (“This [A]ction is brought by Plaintiff to seek damages from ... Defendant from knowingly allowing its employees under the umbrella of the City [to violate Plaintiff's rights]”); id. ¶ 2 (describing the Parties as Plaintiff and “[t]he City of New Rochelle[,] consist[ing] of a mayor and five members of [the] city council who guide the [C]ity”).) 4 For the reasons stated in the Court's March 2016 Opinion, Plaintiff's allegations that “[t]he delay of the trial violat[ed] [his] right to a speedy trial,” (Am. Compl. ¶ 31), are dismissed, (see Opinion 10 n.5 (“Sixth Amendment protections did not apply to Plaintiff's prosecution in the City Court.”)). 5 As the Court's prior Opinion provides an overview of the legal landscape regarding municipal liability under § 1983, the Court does not reiterate the relevant case law here. (See generally Opinion 31–35.) 6 It is well established that the Court may consider “factual allegations made by a pro se party in his papers opposing the motion.” Walker, 717 F.3d at 122 n.1 (italics omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 92 of 240
DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 93 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 5002215 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Laytonia FLAGG, Plaintiff, v. NYS DIVISION OF PAROLE; Mark Saben, Parole Officer; Syracuse Police Dept.; Detective William Summers, ID#409; D.P. Proud, ID# 0140; Richard Curran, ID# 0066; William J. Fitzpatrick, Onondaga County, District Attorney; and Sean Chase, D.A., Defendants. 5:19-CV-886 (TJM/ATB) | Signed 08/15/2019 Attorneys and Law Firms LAYTONIA FLAGG, Plaintiff pro se ORDER and REPORT-RECOMMENDATION ANDREW T. BAXTER, United States Magistrate Judge *1 The Clerk has sent me an amended 1 civil rights complaint filed by pro se plaintiff Laytonia Flagg. (Dkt. No. 3). Plaintiff Flagg has also filed an application to proceed in forma pauperis (“IFP”). (Dkt. No. 4). I. IFP Application A review of plaintiff's IFP application shows that she declares she is unable to pay the filing fee. (Dkt. No. 4). The court finds that plaintiff meets the financial criteria 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 in the 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, 129 S. Ct. 1937, 1949 (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 complaint under the above standards. II. Complaint Plaintiff states that she is the mother of Mario Leslie, who at the time of the incidents described in the complaint, was on parole. (Amended Complaint (“AC”) at 1). 2 On August 8, 2016, defendant New York State Parole Officer (“PO”) Mark Saben went to Mr. Leslie's home at 514 Marcellus Street in Syracuse, New York, to conduct a “standard home visit.” 3 (Id.) Mr. Leslie lived at the Marcellus Street address with his girlfriend, Tamacha Rodriguez. (Id.) Plaintiff claims that Ms. Rodriguez answered the door for PO Saben, and that Mr. Leslie was “summoned” from his bedroom to speak with defendant Saben. (Id.) After some discussion, PO Saben was walking toward the front door, when he spotted some glassine packets “known to contain heroin.” (Id.) Upon discovering the glassine packets, defendant Saben informed Mr. Leslie that he was going to conduct a search of the entire residence according to the conditions of his parole release. (Id.) *2 Plaintiff states that, as a result of the subsequent search, the officer discovered a safe, containing a loaded firearm and $31,925 in United States currency. Defendant Saben also discovered a key chain on which were a set Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 94 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 of keys that were identified as keys to plaintiff's residence. Plaintiff claims that “[a]t this point Sr. P.O. Rigby called the Syracuse Police Department.” 4 (AC at 2). Plaintiff claims that defendant Rigby spoke to Sergeant A. Llukaci, a detective with the Syracuse Police Department, and Sergeant Llukaci told defendants Detectives William Summers and D.P. Proud to go to the Marcellus Street address. Plaintiff states that upon his arrival, defendant Proud stated that he spoke to Ms. Rodriguez, who told defendant Proud that Mr. Leslie kept his money at his mother's apartment “although there is no affidavit on file to attest to that assertion by the [sic] Det. Proud.” Defendant Summers obtained a warrant for the search of plaintiff's home at 112 Fordham Rd. in Syracuse, New York. (AC Ex. CM/ECF p.16-17). Plaintiff claims that she was not home when the “Syracuse Police” and defendant Saben arrived at her home to execute the search warrant. 5 (AC at 2). The officers entered with the key that was found at Mr. Leslie's Marcellus Street home. 6 (Id.) Plaintiff arrived shortly thereafter, but was denied entrance to her home while the search was being executed. (Id.) Plaintiff states that the officers searched plaintiff's apartment and recovered $40,000.00 in cash from a safe that was located in plaintiff's bedroom closet. Plaintiff alleges that the officers confiscated the money. Plaintiff claims that the officers did not have probable cause to obtain the warrant to search her home because there was no proof that Ms. Rodriguez ever made the statement that Mr. Leslie kept his money at his mother's house, and thus, the warrant was obtained improperly. Plaintiff claims that her Fourth Amendment rights were violated as the result of the search of her apartment. Plaintiff then claims that after the seizure of her $40,000.00, she informed defendant Assistant District Attorney (“ADA”) Sean Chase that the money did not belong to Mr. Leslie, and that the money was plaintiff's savings which she would be using to purchase a new home. (AC at 5). Plaintiff claims that ADA Chase told her that his “office would return the illegally seized money.” (Id.) Plaintiff states that, shortly after the incident, she also filed a “complaint” form to complain about the police “conduct in Plaintiff's home,” and to request the “immediate return of the Plaintiff's money.” (Id.) Plaintiff states that the District Attorney's Office responded to the “property release” request only after plaintiff obtained the intervention of “a 3 rd party (Feldman, Kramer & Monaco, P.C.)” (Id.) Plaintiff claims that the property release form showed that the plaintiff's “legally possessed currency was improperly forfeited along with the monies ($31,925.00) seized at 514 Marcellus St.” (AC at 6). Plaintiff claims that ADA Chase told plaintiff on three separate occasions that her money was going to be returned, but that this was a “stalling tactic” by the District Attorney's Office. ADA Chase told plaintiff that he was waiting to hear from Mr. Leslie's attorney “in hopes of persuading [Mr. Leslie] to sign a forfeiture document that later became clear to the Plaintiff that the forfeiture included what was seized at both residences....” (AC at 6). The forfeiture document states that Mr. Leslie stipulated to the forfeiture of $67,269.00, and that he was not aware of any other person who claimed to be the owner of the property. 7 (AC at 6). Plaintiff alleges that the $40,000.00 was not Mr. Leslie's to forfeit. Plaintiff also alleges that the amount on the stipulation of forfeiture that Mr. Leslie signed does not account for the entire amount seized, even though plaintiff was not given any of her money back. Plaintiff claims that the actual amount seized, including her $40,000.00 was $71,925.00, and that there is $4,656.00 missing from the total. (Id.) Plaintiff also claims that the individuals who seized her money did not have the “warrant in hand” and never gave her a receipt for the money that they took. (AC at 7). Plaintiff states that the money taken from her home was not specifically mentioned in any of the paperwork that was subsequently provided to plaintiff as the result of her inquiries. (AC at 8). *3 Plaintiff states that she spoke to then-Chief of the Syracuse Police, Frank Fowler, who told plaintiff that her concerns would be “thoroughly investigated,” but then did not provide plaintiff a report of the investigation and told plaintiff to file a Freedom of Information request if she wished to see the report. (Id.) Plaintiff has attached correspondence that she received from former Chief Fowler, stating that the report had been forwarded to him and that plaintiff could “be assured that [Fowler would] take the proper administrative action in this case.” (AC Ex. CM/ECF p.19). Although the AC contains a “Second Cause of Action,” plaintiff essentially repeats that her Fourth Amendment rights were violated by the defendants' actions in conjunction with the search of her home and the seizure of her money. (AC at 8-9). Plaintiff states that she has not been afforded any documentation that would establish probable cause to search her home. (AC at 9). Plaintiff states that there is no connection between her and Mr. Leslie's “illegal activities,” and there was nothing “illegal” found in plaintiff's apartment. (Id.) In Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 95 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 applying a very liberal reading of the AC, 8 the court could interpret plaintiff's second cause of action as a Fourteenth Amendment Due Process claim, asserting that the defendants deprived her of her money without due process of law when they did not return the money after she made various inquiries and did not allow her to challenge the ownership of the money after her son signed the waiver and stipulation. As stated above, the plaintiff has attached various documents as exhibits to the AC, including (1) the search warrant issued by City Court Judge Kate Rosenthal for plaintiff's apartment at 112 Fordham Rd. (AC Ex. CM/ECF pp.16-17); (2) Plaintiff's Civilian Complaint Report (AC Ex. CM/ECF p.18); a letter to plaintiff from former Chief Fowler (AC Ex. CM/ECF p.19); a letter to plaintiff from David L. Chaplin, II, Esq. on behalf of the Citizen Review Board dated December 2, 2016 (AC Ex. CM/ECF p. 20); a letter to plaintiff from Kimberly M. Osbeck, a paralegal for the Onondaga County District Attorney's Office, dated March 6, 2018 (AC Ex. CM/ECF p. 21); a letter to plaintiff from the Public Integrity Bureau of the New York State Attorney General's Office (AC Ex. CM/ECF p. 22); an “Application for Release of Property,” signed by plaintiff on November 2, 2017, together with the unsigned refusal to release the property because the “money [was] forfeited during [a] criminal prosecution.” (AC Ex. CM/ECF pp.23-24); the “Waiver and Stipulation,” signed by Mr. Leslie on February 28, 2017, relinquishing any rights to the seized money (AC Ex. CM/ECF pp.25-26); “CNYLEADS Narrative Supplement[s]” numbers 1-3, including an “offense page” and a “property supplement,” detailing all the property taken from the Marcellus St. address. (AC Ex. CM/ECF pp.27-32). Plaintiff seeks the return of the $40,000.00 that she claims was taken from her in August of 2016, compensatory damages for the “Syracuse Police Department trashing Plaintiff's two bedrooms at 112 Fordham Rd.,” damages for “five hours” worth of lost income 9 on the day of the search, unspecified lost income for the day that she had to appear in court, 10 and “punitive” damages for emotional pain and suffering, including the damages for the delay in purchasing her dream home. (Id.) III. Eleventh Amendment/New York State Division of Parole A. Legal Standards *4 The Eleventh Amendment provides that states have immunity against suits in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). An action against state officers in their official capacities, or an action against an agency of the state, is tantamount to an action against the state. Yorktown Medical Laboratory v. Perales, 948 F.2d 84, 87 (2d Cir. 1991) (official capacity actions); Santiago v. New York State Dep't of Correctional Services, 945 F.2d 25, 28 n.1 (2d Cir. 1991) (agencies of the state). B. Application In this case, in addition to the individual parole officers who were allegedly responsible for obtaining the warrant to search her apartment, plaintiff has named the “N.Y.S. Division of Parole.” (AC at 1). The Eleventh Amendment prevents plaintiff from suing the N.Y.S. Division of Parole. Thus, to the extent that plaintiff seeks to sue the agency separately from the individual officers, the AC may be dismissed with prejudice, but as further discussed below, plaintiff may sue Mark Saben, one of the individuals who allegedly participated in obtaining the warrant for her home. 11 IV. Syracuse Police Department/Municipal Liability A. Legal Standards Under New York law, departments, like the Syracuse Police Department that are merely administrative arms of a municipality, do not have a legal identity separate from the municipality, and may not sue or be sued. Hayes v. County of Sullivan, Nos. 07-CV-667; 09-CV-2071, 2012 WL 1129373, at *24 (S.D.N.Y. March 30, 2012) (citing inter alia Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)). B. Application To the extent that plaintiff is suing the Syracuse Police Department as an entity separate from the individual police officers who were allegedly involved in obtaining the warrant for her apartment, plaintiff may not do so. Unlike the State of New York itself, against which a suit for damages would be barred by the Eleventh Amendment, the City of Syracuse could be named instead of the Syracuse Police Department. However, the municipality itself may only be named as a defendant in certain circumstances. In Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court outlined the limited circumstances under which a municipality may be liable under Section 1983. Only when the municipality, through the execution of its policies, actually deprives an Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 96 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 individual of his constitutional rights, is it liable for the injury. Id. at 694. To establish municipal liability, the policy must actually cause the violation of constitutional rights; it must be the moving force behind the violation. Id.; Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979). *5 As it is written, the AC makes no claims that would allow the plaintiff to name the City of Syracuse as a defendant in this action. Plaintiff essentially complains of a single incident, during which the officers did not act properly in obtaining a warrant for her home and did not act properly in executing the warrant in her case. There is no indication that plaintiff can assert a policy or custom which would support municipal liability based on these facts. While plaintiff may not sue the Syracuse Police Department in any event, and while the court will not sua sponte replace the Syracuse Police Department with the City of Syracuse, the court does not rule out that, upon proper pleading, plaintiff could amend her AC to assert such a claim against the City of Syracuse. However, plaintiff is warned that any such facts must plausibly suggest her claim, and that simply making a conclusory allegation of a “policy or custom” is insufficient to assert municipal liability. Sulaymu Bey v. City of New York, No. 17-CV-3563. 2019 WL 1434597, at *10 (E.D.N.Y. Mar. 29, 2019); Nielsen v. City of Rochester, 58 F. Supp. 3d 268, 277 (W.D.N.Y. 2014) (conclusory allegations which merely recite the elements for stating a Monell claim are insufficient to state a claim for municipal liability) (citing inter alia Genovese v. Town of Southhampton, 92 F. Supp. 2d 8, 25 (E.D.N.Y. 2013)). A single incident, particularly if it involved individuals below the policy-making, level is insufficient to state a Monell claim. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998). As discussed below, plaintiff may proceed against the individual officers who she claims violated her constitutional rights: Detective Summers, D.P. Proud; and Richard Curran. V. Prosecutorial Immunity/Personal Involvement A. Legal Standards 1. Prosecutorial Immunity Prosecutors enjoy absolute immunity from suit under section 1983 in matters associated with their prosecutorial functions, regardless of motivation. Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (prosecutorial immunity covers virtually all acts associated with the prosecutor's function, including conspiracies to present false evidence); Bernard v. County of Suffolk, 356 F.3d 495 (2d Cir. 2004) (absolute immunity shields prosecutors from suit pursuant to section 1983 for their alleged malicious or selective prosecution as well as for any misconduct in the presentation of evidence to the grand jury). Absolute immunity is defeated only when the prosecutor is engaging in investigative functions. Bernard v. County of Suffolk, 356 F.3d at 502-503 (citation omitted). The initiation and pursuit of prosecution, regardless of any alleged illegality, is protected by absolute prosecutorial immunity. Peay v. Ajello, 470 F.3d 65, 67-68 (2d Cir. 2006). It has also been held that a prosecutor is entitled to absolute immunity for his or her decision not to prosecute, regardless of the motivation for that decision. Scloss v. Bouse, 876 F.2d 287, 292 (2d Cir. 1989). 2. Personal Involvement Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). In Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed the various ways in which a defendant can be personally involved in a constitutional deprivation, and thus be subject to individual liability. A supervisory official is personally involved if that official directly participated in the infraction. Id. The defendant may have been personally involved if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong. Id. Personal involvement may also exist if the official created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue. Id. Finally, a supervisory official may be personally involved if he or she were grossly negligent in managing subordinates who caused the unlawful condition or event. Id. See also Iqbal v. Hasty, 490 F.3d 143, 152–53 (2d Cir. 2007) (citing Colon v. Coughlin, 58 F.3d 865, 873) (2d Cir. 1995), rev'd on other grounds, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). *6 Some courts have discussed whether all of the Colon factors are still viable after Ashcroft. See Conklin v. County of Suffolk, 859 F. Supp. 2d 415, 439 (E.D.N.Y. 2012) (discussing cases). However, the court in Conklin ultimately determined that it was unclear whether Colon had been overruled or limited, and continued to apply the factors outlined in Colon. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 97 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Id. In making this determination, the court in Conklin stated that “it remains the case that ‘there is no controversy that allegations that do not satisfy any of the Colon prongs are insufficient to state a claim against a defendant-supervisor.’ ” Id. (quoting Aguilar v. Immigration Customs Enforcement Div. of the U.S. Dep't of Homeland Sec., 811 F. Supp. 2d 803, 815 (S.D.N.Y. 2011)). See also Jones v. Smith, No. 09-CV-1058, 2015 WL 5750136, at *8 n.6 (N.D.N.Y. Sept. 30, 2015) (discussing the use of the Colon factors absent definitive guidance from the Second Circuit). B. Application Plaintiff has named the Onondaga County District Attorney, William J. Fitzpatrick, together with one of his Assistant District Attorneys, Sean Chase. (AC ¶ 3(c)). Plaintiff claims that she spoke to ADA Chase “right after the seizure,” she explained to him that the money did not belong to her son, the money was hers, and she “produced tax returns” for the last five consecutive years in an effort to show that she “legally possessed the money.” (AC at 5). She claims that “[k]nowing this,” ADA Chase told plaintiff that his office would return the illegally seized money. (Id.) Plaintiff claims that notwithstanding ADA Chase's statement, he did not return the money, and allegedly “stalled” plaintiff until her son signed the waiver of forfeiture document, which included the total amount of money that was seized from both residences. (AC at 6). The initiation of civil asset forfeiture proceedings is a prosecutorial function that has been afforded absolute immunity. See Byrne v. City of New York, 736 Fed. App'x 263, 266 (2d Cir. 2018) (Second Circuit precedent affords absolute immunity to government attorneys who initiate civil suits) (quoting Spear v. Town of W. Hartford, 954 F.2d 63, 66 (2d Cir. 1992); Mangiafico v. Blumenthal, 471 F.3d 391, 395 (2d Cir. 2006)). ADA Chase was allegedly handling the forfeiture proceeding, and even though he did not have to initiate court proceedings because Mr. Leslie signed the stipulation and waiver, the document stated that “I have concluded that the District Attorney would likely establish that the above-mentioned property is subject to forfeiture pursuant to Article 13-A [of the NY Civil Practice Law and Rules] and the District Attorney would likely prevail in such a forfeiture action.” 12 (AC Ex. CM/ECF p.25). This document took the place of an in-court forfeiture proceeding, which would have been held pursuant to N.Y. Civ. Prac. L. & R. § 1311 (Forfeiture Actions). Thus, ADA Chase is entitled to absolute immunity with respect to his conduct relative to the forfeiture of the money seized, even if plaintiff claimed that some of the money belonged to her. 13 This is true whether ADA Chase's conduct was proper or improper, and whether or not he was mistaken in obtaining Mr. Leslie's waiver and stipulation of forfeiture. Thus, to the extent that plaintiff raises due process violations with respect to her interest in the funds, they must be dismissed as against ADA Chase. *7 Plaintiff has not asserted any facts against defendant Fitzpatrick. 14 He does not appear to have been involved in any way in obtaining the search warrant for plaintiff's apartment, in executing the search warrant for plaintiff's apartment, or in the forfeiture proceedings with respect to the money seized. Thus, any claims against him individually would fail for lack of personal involvement. If he had been personally involved in the forfeiture, he, like ADA Chase, would be entitled to absolute prosecutorial immunity. 15 Thus, plaintiff's amended complaint may be dismissed with prejudice as against defendants ADA Chase and DA Fitzpatrick. VI. Search and Seizure A. Legal Standards “It is well-settled that in cases raising claims under the Fourth Amendment of unauthorized execution of a search warrant ‘[t]he validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to disclose, to the issuing Magistrate.’ ” Arroyo v. City of Buffalo, No. 15-CV-753, 2018 WL 4376798, at *3 (W.D.N.Y. Sept. 13, 2018) (quoting Velardi v. Walsh, 40 F.3d 569, 575 n. 2 (2d Cir. 1994) (internal quotation marks omitted)). A warrant is not invalid for section 1983 purposes if it is “ ‘based on seemingly reliable information which is later found to be erroneous.’ ” Id. (quoting Lewis v. City of Mt. Vernon, N.Y., 984 F. Supp. 748, 756 (S.D.N.Y. 1997)). B. Application Although the court has concerns about the merits of this action, at this stage of the proceedings, the court finds that any Fourth Amendment claims that plaintiff may have against defendants Saben, Summers, Proud, and Curran may survive initial review. 16 Plaintiff seems to claim that the warrant for her home was based on false information given the court, which plaintiff claims was the only basis for the warrant. While it may be that a close review of the documents provided with the amended complaint, together with any other evidence Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 98 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 or argument by defendants in a properly supported dispositive motion, may show otherwise, the court is not currently in a position to make factual or other determinations regarding the validity of the warrant or any other claims that plaintiff may have regarding the search of her home. *8 The court also notes that because of the waiver and stipulation, signed by Mr. Leslie, there was no formal forfeiture proceeding in New York State Court as provided in N.Y. Civ. Prac. L. & R. § 1311. Thus, it is unclear how the plaintiff could have challenged the forfeiture. 17 The court also makes no findings regarding the validity of any defenses that the defendants may assert regarding the incident in question. WHEREFORE, based on the findings above, it is ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 4) is GRANTED, and it is RECOMMENDED, that the amended complaint (Dkt. No. 3) be DISMISSED IN ITS ENTIRETY as against defendants N.Y.S. DIVISION OF PAROLE; SYRACUSE POLICE DEPARTMENT; WILLIAM J. FITZPATRICK; AND SEAN CHASE, and it is RECOMMENDED, that to the extent that the AC may be read as naming SGT. LLUKACI or PO RIGBY, the AC may be dismissed WITHOUT PREJUDICE for failure to state a claim, and it is RECOMMENDED, that if the District Court adopts this Recommendation, the case be returned to me for further proceedings, including an order serving the remaining defendants: SABEN, SUMMERS, PROUD, and CURRAN. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have 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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. All Citations Not Reported in Fed. Supp., 2019 WL 5002215 Footnotes 1 When plaintiff filed her original complaint, the case was administratively closed due to plaintiff's failure to comply with the filing fee requirement. (Dkt. No. 2). Prior to re-filing her motion to proceed IFP, (Dkt. No. 4), plaintiff also filed an amended complaint, which the court will review as the operative pleading. The case was re-opened on August 1, 2019. (Dkt. No. 6). 2 Plaintiff numbered the pages of the “Fact” section of the amended complaint at the bottom of the page. The court will cite to the page numbers contained on the actual document. Plaintiff has attached a series of documents as exhibits to the amended complaint which she did not number. The court will cite to the plaintiff's exhibits (“AC Ex.”) with the page number as assigned by the court's electronic filing system (“CM/ECF”). 3 Plaintiff was not present for any of the incidents that she describes in her complaint until she arrived at her house during the subsequent search of her property. Plaintiff appears to be taking her recitation of the background facts from the police reports and other documents that she has attached to her amended complaint. (AC Ex. CM/ECF pp. 16-32). The court is stating the facts as plaintiff has described them in the amended complaint. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 99 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 4 This is the first time that another parole officer was mentioned in plaintiff's statement of facts. The court will assume that defendant Rigby was at the residence from the beginning, but it is not completely clear from the papers. 5 Plaintiff does not allege that PO Rigby participated in the search of her apartment. 6 Plaintiff states that the officers were in possession of the door key “prior to their actual possession of the warrant for 112 Fordham Rd.” (AC at 2). 7 Plaintiff has attached a copy of Mr. Leslie's “Waiver and Stipulation.” (AC Ex. CM/ECF p.25-26). Plaintiff claims that this document was obtained after she asked for the return of the money several times from the District Attorney's Office, the Citizen Review Board, and the Syracuse Police Department. (AC at 7). When she failed to get a “truthful” response, she contacted Feldman, Kramer & Monaco, P.C. (Id.) The document was sent to the attorneys' office after the firm wrote a letter of inquiry. (Id.) 8 Plaintiff is pro se, and the court must interpret plaintiff's complaint liberally. Sealed Plaintiff v. Sealed Defendants, 537 F.3d 185, 191 (2d Cir. 2008). The court considers all possible grounds for relief that plaintiff could be raising. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se papers are interpreted liberally to raise the strongest arguments suggested therein). 9 Plaintiff states that she works from home, and could not work for the time that the officers were searching her apartment. (AC at 10). 10 Apparently, on the day that the officers searched plaintiff's apartment, they found a “weed roach” and gave plaintiff an appearance ticket, which was later dismissed after plaintiff appeared in court. (AC at 10). Plaintiff seeks lost income for the time that it took to appear in court. (Id.) 11 It is unclear whether plaintiff meant to name PO Rigby as a defendant herein. He is mentioned briefly in the body of the complaint and was apparently present during the Marcellus St. search, but is not listed in the caption of the complaint, and plaintiff submitted no proposed summons for PO Rigby. In addition, it does not appear from the facts as stated by plaintiff that PO Rigby was involved in obtaining the search warrant for plaintiff's apartment, nor is it even apparent that he was present during the search of plaintiff's apartment. Thus, plaintiff does not state any claims against PO Rigby, and to the extent that she meant to name him as a defendant, the AC should be dismissed as against him. 12 Article 13-a is entitled “Proceeds of a Crime -Forfeiture.” N.Y. Civ. Prac. L. & R. Art. 13-a 13 Although not relevant to the court's decision because it is based on absolute immunity of the prosecutor, regardless of whether Mr. Leslie's assertions in the document were correct, the court notes that plaintiff's statement herein is contrary to her son's sworn assertion in the document. Plaintiff states that ADA Chase told plaintiff that they were waiting to hear from Mr. Leslie's attorney regarding whether he was going to sign the forfeiture document. (AC at 6). Plaintiff claims that her son signed the document “under duress.” Plaintiff cannot assert any claims regarding her son, and in any event, her son was, by her own statement, represented by counsel during the matter. 14 Plaintiff requests only damages, including a return of the $40,000.00 as relief in this action. She does not seem to be asking for any form of injunctive relief. Even though plaintiff asks for a “return” of money, the Eleventh Amendment does not “recognize a distinction ‘between monetary damages and money in which plaintiff has a property interest.’ ” Local 851 of Internat'l Broth. of Teamsters v. Thyssen Haniel Logistics, Inc., 90 F. Supp. 2d 237, 249-50 (E.D.N.Y. 2000) (quoting Yorktown Medical Lab., Inc. v. Perales, 949 F.2d 84, 87-88 (2d Cir. 1991)). The District Attorney could have been the proper party in a declaratory judgment under Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 100 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 New York State law under N.Y. Civ. Prac. L & R. 1327 (Proceedings to Determine Adverse Claims), which plaintiff could have filed within six months of the stipulation, signed by Mr. Leslie. 15 To the extent that the complaint could be interpreted as suing either ADA Chase or DA Fitzpatrick in their “official capacities,” the Eleventh Amendment would bar any such suit. See Blessinger v. City of New York, No. 17-CV-108, 2017 WL 3841873, at *1-2 (S.D.N.Y. Sept. 1, 2017) (prosecutors are entitled to Eleventh Amendment immunity when they are acting in their prosecutorial capacity because they are acting as state officials rather than city or county employees) (citing Peterson v. Tomaselli, 469 F. Supp. 2d 146, 157 (S.D.N.Y. 2007) and Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988) (when prosecuting a criminal matter, a district attorney in New York State represents the State not the County)). 16 Although plaintiff has included a proposed summons for Sgt. Llukaci, this individual is not listed in the caption of the AC, nor is he included in the section of the form-AC which lists the individual Syracuse Police Officers. (AC ¶ 3(c)) for whom she has included identification numbers. In any event, plaintiff's only allegations against Sgt. Llukaci are that he sent defendants Proud and Summers to Mr. Leslie's Marcellus St. home after the parole officers found contraband therein. Plaintiff does not allege that he was personally involved in any of the conduct that she claims violated her constitutional rights. He was not at either residence and was not involved in obtaining the allegedly invalid warrant. Thus, to the extent that plaintiff is trying to sue Sgt. Llukaci, the AC may be dismissed as against this defendant. 17 The court does note that section 1311(7) provides that an innocent owner may challenge the forfeiture and regain the forfeited property if the owner never received notice of the forfeiture. In addition, section 1327 provides for an “interested person” to bring a proceeding to determine adverse claims, even after the forfeiture action was settled by stipulation. See Tupi Cambios, S.A. v. Morganthau, 48 A.D.2d 278 (1st Dep't 2008). In Tupi Cambios, the District Attorney was the proper “defendant” in New York State Court. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 101 of 240
Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 4963112 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Laytonia FLAGG, Plaintiff, v. NYS DIVISION OF PAROLE; Mark Saben, Parole Officer; Syracuse Police Dept.; Detective William Summers, ID#409; D.P. Proud, ID# 0140; Richard Curran, ID# 0066; William J. Fitzpatrick, Onondaga County, District Attorney; and Sean Chase, D.A., Defendants. 5:19-CV-886 | Signed 10/08/2019 Attorneys and Law Firms Laytonia Flagg, Syracuse, NY, pro se. DECISION & ORDER THOMAS J. McAVOY, Senior United States District Judge I. INTRODUCTION *1 This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In his Order and Report-Recommendation dated August 15, 2019 (Dkt. No. 7), Magistrate Judge Baxter grants Plaintiff's application to proceed in forma pauperis, and examines the sufficiency of the allegations set forth in the Amended Complaint (“AC”) in light of 28 U.S.C. § 1915. He recommends that the AC (Dkt. No. 3) be dismissed in its entirety as against defendants N.Y.S. Division of Parole, Syracuse Police Department, William J. Fitzpatrick, and Sean Chase; that to the extent that the AC may be read as naming Sgt. Llukaci or PO Rigby, the AC be dismissed without prejudice for failure to state a claim; and that if the Court adopts these recommendations that the case be returned to him for further proceedings, including an order serving the remaining defendants Saben, Summers, Proud, and Curran. No objections to the Report-Recommendation have been filed, and the time to do so has expired. II. DISCUSSION After examining the record, this Court has determined that the Order and Report-Recommendation is not subject to attack for plain error or manifest injustice. III. CONCLUSION Accordingly, the Court ACCEPTS and ADOPTS the recommendations in the Order and Report-Recommendation (Dkt. No. 7) for the reasons stated therein. Therefore, it is hereby ORDERED that Plaintiff's Amended Complaint (Dkt. No. 3) is DISMISSED IN ITS ENTIRETY as against defendants N.Y.S. DIVISION OF PAROLE, SYRACUSE POLICE DEPARTMENT, WILLIAM J. FITZPATRICK, and SEAN CHASE, and it is further ORDERED that to the extent the Amended Complaint may be read as naming SGT. LLUKACI or PO RIGBY, it is DISMISSED WITHOUT PREJUDICE for failure to state a claim, and it is further ORDERED that the case be returned to Magistrate Judge Baxter for further proceedings, including an order serving the remaining defendants: SABEN, SUMMERS, PROUD, and CURRAN. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2019 WL 4963112 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 102 of 240
Gentile v. Republic Tobacco Co., Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1995 WL 743719 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Anthony GENTILE, Plaintiff, v. REPUBLIC TOBACCO COMPANY, Defendant. No. 95-CV-1500 (RSP) (DNH). | Dec. 6, 1995. Attorneys and Law Firms Anthony Gentile, Binghamton, NY, pro se. DECISION and ORDER POOLER, District Judge. I. Background *1 Presently before this Court is an application to proceed in forma pauperis and a civil rights complaint. Plaintiff Anthony Gentile (“Gentile”) has not paid the partial filing fee required to maintain this action. Because Gentile's complaint is without arguable basis in law, I dismiss it pursuant to 28 U.S.C. § 1915(d) and Rule 5.4(a) of the Local Rules of Practice of this District as without arguable basis in law. In his pro se complaint, Gentile claims that defendant Republic Tobacco Company (“Republic”) manufactures a product called TOP tobacco, and that Republic has negligently failed to put any warning labels on such product regarding possible health hazards which may be caused by the use of such product. For a more complete statement of plaintiff's claims, reference is made to the entire complaint filed herein. II. Discussion Consideration of whether a pro se plaintiff should be permitted to proceed in forma pauperis is a two-step process. First, the court must determine whether the plaintiff's economic status warrants waiver of fees and costs under 28 U.S.C. § 1915(a). If the plaintiff qualifies by economic status, the court must then consider whether the cause of action stated in the complaint is frivolous or malicious. Moreman v. Douglas, 848 F.Supp. 332, 333 (N.D.N.Y. 1994) (Scullin, J.); Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam). I have determined that Gentile's financial status qualifies him to file or “commence” this action in forma pauperis. 28 U.S.C. § 1915(a). I therefore turn to the second inquiry. A court may “dismiss the proceeding under 28 U.S.C. § 1915(d) if the court thereafter determines that ... the action is frivolous or malicious.” Moreman, 848 F.Supp. at 333 (citation omitted). In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam). In addition, the court should exercise extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). Nonetheless, the Court has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915(d) is appropriate to prevent abuses of the process of the court, Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974), and to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327. See generally Moreman, 848 F.Supp. at 334. Gentile brought this action under 42 U.S.C. § 1983, which permits individuals to seek redress for alleged violations of their constitutional rights. See, e.g., Von Ritter v. Heald, No. 91-CV-612, 1994 WL 688306, *3, 1994 U.S.Dist. LEXIS 17698, *8-9 (N.D.N.Y. Nov. 14, 1994) (McAvoy, C.J.). However, parties may not be held liable under this section unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994) (noting state action requirement under § 1983); Wise v. Battistoni, No. 92-Civ-4288, 1992 WL 380914, *1, 1992 U.S.Dist. LEXIS 18864, *2-3 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). *2 In the present case, Gentile has named Republic as the sole defendant herein. However, Gentile has not alleged any nexus between the State of New York and the challenged actions of Republic. State action is an essential element of any Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 103 of 240
Gentile v. Republic Tobacco Co., Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 § 1983 claim. See Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y. 1994) (McAvoy, C.J.) (citation omitted). Moreover, the Court notes that Gentile contends that Republic's failure to warn the public of possible health hazards was the result of negligence on the part of the defendant. Complaint at 2. However, it is well settled that mere negligence is not cognizable under § 1983. See Stevens v. Pinkney, No. 95-CV-1338, slip op. at 4 (N.D.N.Y. Oct. 25, 1995) (Scullin, J.) (citations omitted). Because no arguable basis in law supports Gentile's complaint, I must dismiss it pursuant to 28 U.S.C. § 1915(d). Neitzke, 490 U.S. at 328. Accordingly, it is hereby ORDERED, that leave to proceed or prosecute this action in forma pauperis is denied, and it is further ORDERED, that this action is dismissed pursuant to 28 U.S.C. § 1915(d) and Rule 5.4(a) of the Local Rules of Practice of this District as lacking any arguable basis in law, and it is further ORDERED, that the Clerk serve a copy of this Order on the plaintiff by regular mail. I further certify that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a). IT IS SO ORDERED. All Citations Not Reported in F.Supp., 1995 WL 743719 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 104 of 240
Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 1469402 Only the Westlaw citation is currently available. United States District Court, E.D. New York. M. Eugene GIBBS, Plaintiff, v. BANK OF AMERICA, N. A.; Nationstar d/b/a Mr. Cooper; Barbara Gibbs; United States: Freddie Mac; Federal Housing Finance Agency (FHFA); Judge Michael G. Nettles; Alan M. Wilson, SC AG; Chief Judge Wendy L. Hagenau; Cynthia R. Eadon; McGuire Woods, LLP; Scott and Corley, P.A; William ‘Toll” Cosby; Peter Stern, Esq.; Michael Rosenfeld Art Gallery; Smithsonian Institution; Breon Peace; Nancy J. Whaley; Merrick B. Garland; Consumer Financial Protection Bureau; NAACP; Congressional Black Caucus, U.S. House of Representatives; AI Sharpton; Rod Rosenstein [USA]; and Does, 1-100, Defendants. 22-CV-00011 (RPK) (LB) | Signed 05/10/2022 Attorneys and Law Firms Eugene M. Gibbs, Buford, GA, Pro Se. Michael E. Blaine, Winston & Strawn, LLP, New York, NY, for Defendant Bank of America Bank, N.A. Charles H. Jeanfreau, Jr., McCalla Raymer Leibert Pierce, LLC, Iselin, NJ, for Defendant Nationstar. Christopher Daniel Volpe, United States Attorney's Office Easten District of New York, Brooklyn, NY, for Defendants Federal Housing Finance Agency, Chief Judge Wendy L. Hagenau, Cynthia R. Eadon, Smithsonian Institution, Rod Rosenstein (USA), Breon S. Peace, Merrick B. Garland, Consumer Financial Protection Bureau. Andrew Lindemann, Pro Hac Vice, Lindemann & Davis, P.A., Columbia, SC, Joseph P. McNulty, Blick Law LLC, Somerset, NJ, for Defendants Judge Michael G. Nettles, SC AG Alan M. Wilson. Aleksandra Kaplun, McGuireWoods LLP, New York, NY, for Defendant McGuire Woods, LLP. Christopher John Seusing, Wood Smith Henning & Berman LLP, New York, NY, John A. Darminio, Wood, Smith, Henning & Berman LLP, White Plains, NY, for Defendant Scott and Corley, P.A. MEMORANDUM AND ORDER Rachel P. Kovner, United States District Judge: *1 Pro se plaintiff M. Eugene Gibbs brings civil claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and New York General Business Law (“GBL”) Section 349, alleging various conspiracies. Mr. Gibbs's wife brings similar claims as crossclaims. As explained below, most of these claims are barred because the couple has unsuccessfully pressed them in prior lawsuits. The remainder are dismissed because they are frivolous. Mr. Gibbs is advised that he may be subject to sanctions if he continues to file repetitive, frivolous, and vexatious lawsuits. Background Mr. Gibbs has filed a complaint and an amended complaint that purports to incorporate his original complaint in its entirety. See Compl. (Dkt. #1); Am. Compl. (Dkt. #6). The following facts are taken from the complaint and amended complaint and are assumed true for purposes of this order. Mr. Gibbs first alleges a conspiracy to undermine the Home Affordable Modification Program (“HAMP”) by Bank of America, Nationstar Mortgage, and various Doe defendants (collectively, the “HAMP Defendants”). Compl. 2-4. According to Mr. Gibbs, these defendants sought to subvert the HAMP program by falsely denying that they had received documents from homeowners and by issuing false notices claiming that homeowners had failed to submit required documentation. Id. ¶¶ 15-18, 72-81, 96-109. Mr. Gibbs alleges that as part of this scheme, Bank of America mishandled his own attempt to modify his mortgage on his home in Florence, South Carolina that Mr. Gibbs owned with his wife, Barbara Gibbs. Id. ¶ 132. He alleges that he contacted Bank of America in 2009 to seek a modification of his mortgage loan from Bank of America for that South Carolina home. Id. ¶¶ 132, 136. According to Mr. Gibbs, he was given false information and incorrectly told that his mortgage was not eligible for a modification. Ibid. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 105 of 240
Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Nevertheless, Mr. Gibbs persisted in applying for the HAMP program, and was eventually told that he could enroll. Id. ¶¶ 137-139. Eventually, a Bank of America representative told him to send his HAMP application with supporting documentation to a certain fax number; Mr. Gibbs promptly did so. Id. ¶ 140. The Bank of America representative later informed Mr. Gibbs that his documents had been lost and that he would need to resend them. Id. ¶¶ 143, 145. Mr. Gibbs's application was subsequently denied due to a failure to submit the requested documents. Ibid. In November 2012, Bank of America falsely told Mr. Gibbs that his mortgage was sold to Nationstar Mortgage when in fact it had been sold to Freddie Mac. Id. ¶¶ 151-52. According to Mr. Gibbs, Bank of America's action was part of a larger conspiracy between the HAMP Defendants’ attorneys, McGuire Woods, LLP, South Carolina's Attorney General, Alan Wilson, Judge Michael Nettles, Scott and Corley, P.A., and the HAMP Defendants to bribe the Consumer Financial Protection Bureau (“CFPB”), the Federal Housing Finance Agency (“FHFA”), Fannie Mae, and Freddie Mac to conceal Bank of America's sale of mortgage notes. Id. ¶¶ 173, 354-356; Am. Compl. ¶ 18. *2 At any rate, by the time it was sold, Mr. Gibbs's loan still had not been modified through the HAMP program. Compl. ¶ 153. Moreover, the failure of Bank of America to modify Mr. Gibbs's loan put him so far in arrears that his loan was in default. Id. ¶ 152. Because of this default, the HAMP Defendants hired McGuire Woods, LLP to litigate a foreclosure lawsuit against Mr. Gibbs. Id. ¶ 354. Mr. Gibbs alleges that because of the foreclosure action, his wife was forced to file bankruptcy. Id. ¶ 360. Mr. Gibbs also alleges that the HAMP Defendants and McGuire Woods “acted in concert” with Chief Bankruptcy Judge Wendy Hagenau of the Bankruptcy Court of the Northern District of Georgia and her Courtroom Deputy, Cynthia R. Eadon, to ensure that Mr. Gibbs and his wife lost the bankruptcy action. Id. ¶¶ 360-64. Next, Mr. Gibbs alleges that Attorney General Wilson conspired with attorney Peter Stern, Bill Cosby, the Smithsonian, and the Michael Rosenfeld Art Gallery (collectively, the “Art Defendants”) to steal works of art by black artists. Id. ¶¶ 167, 179, 180, 264, 352. Mr. Gibbs alleges that the Art Defendants conspired to steal art from the family of William H. Johnson, Gibbs's former client. Id. ¶ 183. He further asserts that the Smithsonian received 2,000 pieces of the stolen artwork and concealed the fact that the artwork was stolen. Id. ¶ 180. Mr. Gibbs also alleges that the Reverend Al Sharpton, the National Association for the Advancement of Colored People (“NAACP”), and the Congressional Black Causes of the United States House of Representatives were bribed to remain silent about this theft, as well as about a “pedophilia ring.” Am. Compl. ¶¶ 5, 19, 29. Finally, Mr. Gibbs claims that the Art Defendants conspired with Rod Rosenstein, Attorney General Wilson, Judge Nettles, the Justice Department, US Attorney Breon Peace, and numerous John Doe FBI agents to have Mr. Gibbs arrested for a crime that never occurred. Compl. ¶¶ 167-68, 170, 351, 353; Am Compl. ¶¶ 2, 11, 23, 25. This appears to be a reference to Mr. Gibbs's conviction for mailing threatening communications, in violation of 18 U.S.C. § 876. See United States v. Gibbs, 185 F. App'x 258 (4th Cir. 2006). Mr. Gibbs also alleges that those defendants conspired to transport Mr. Gibbs's medical documents from Connecticut to South Carolina. Compl. ¶¶ 167-68, 170, 351, 353. Mr. Gibbs suggests that, due to the actions of defendants, he was disbarred from the practice of law in South Carolina. Id. ¶ 266; see In re Gibbs, 562 S.E.2d 639, 640 (S.C. 2002) (noting disbarment). Based on the foregoing allegations, Mr. Gibbs appears to assert RICO claims against all defendants, as well as a GBL claim against the Michael Rosenfeld Art Gallery. Compl. ¶¶ 157, 328-350, 365-368. Mr. Gibbs seeks to have this case declared a class action, and requests damages, injunctive relief, and declaratory relief. Id. at 93-94; Am Compl. 12-14. Mr. Gibbs has also filed separate motions for a temporary restraining order, a preliminary injunction, and a declaratory judgment seeking substantially the same remedies. See Dkt. ##2, 8, 9. Mr. Gibbs also named his wife, Barbara Gibbs, as a defendant, Compl. ¶ 24, and suggests that she is also liable for his RICO claim, id. ¶¶ 339(d), (i), 340. Ms. Gibbs has filed a crossclaim against Bank of America and McGuire Woods LLP, incorporating by reference the claims Mr. Gibbs raised in his complaint and amended complaint. See Notice of “Deft Gibbs” Cross Claim 1 (Dkt. #41). Bank of America, McGuire Woods LLP, Michael G. Nettles, and Alan M. Wilson have filed motions to dismiss. See Dkt. ##23, 30, 74, 75. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 106 of 240
Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 Standard of Review *3 Even when a plaintiff has paid the filing fee, a district court may dismiss a case, sua sponte, if it determines that the Court lacks subject matter jurisdiction or that the action is frivolous. Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam). A district court may also raise the issues of res judicata and collateral estoppel sua sponte against a party who has already had notice and an opportunity to respond to those issues. Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (citing Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998)); Pino v. Ryan, 49 F.3d 51, 54 (2d Cir. 1995). While complaints by most pro se plaintiffs are generally liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotations and citations omitted), plaintiff's complaint is not entitled to special solicitude because plaintiff is a disbarred attorney. United States v. Pierce, 649 F. App'x 117, 118 (2d Cir. 2016); Mitchell v. Con Edison, 531 F. App'x 140, 141 (2d Cir. 2013); Allegrino v. Ruskin Moscou Faltischek, P.C., No. 19-CV-08900 (PMH), 2021 WL 429121, at *5 (S.D.N.Y. Feb. 8, 2021); see also In re Gibbs, 562 S.E.2d at 648 (noting Mr. Gibbs's disbarment). Discussion Mr. Gibbs's amended complaint is dismissed, as are Ms. Gibbs's crossclaims. Their RICO claims against Bank of America and Nationstar are barred by res judicata and collateral estoppel. Mr. Gibbs's claims relating to the theft of artwork, his disbarment, and his arrest are barred by collateral estoppel. Finally, the remainder of Mr. Gibbs's claims are frivolous, and Mr. Gibbs is advised that he may be subject to sanctions if he continues filing similar claims. I. The RICO Claims Against Bank of America and Nationstar are Barred by Res Judicata. Res judicata bars Mr. and Ms. Gibbs's RICO claims (and crossclaims) against Bank of America and Nationstar. Res judicata bars subsequent litigation if: “(1) the previous action involved an adjudication on the merits; (2) the previous action involved the [parties] or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000) (citations omitted). “Even claims based upon different legal theories are barred provided they arise from the same transaction or occurrence.” L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999) (citation omitted). As Mr. Gibbs and his wife shouldn't be surprised to learn, their claims are barred by res judicata. Both Mr. Gibbs and his wife already brought a RICO claim in the District of Colorado in 2015 against Bank of America and Nationstar. See Gibbs- Squires v. Urb. Settlement Servs., No. 14-CV-00488 (MSK) (CBS), 2015 WL 196217, at *5-6 (D. Colo. Jan. 14, 2015), aff'd, 623 F. App'x 917 (10th Cir. 2015). That lawsuit, like this one, alleged that those entities and others conspired to undermine the HAMP program and that Bank of America's handling of plaintiff's mortgage modification request for his South Carolina home was part of this conspiracy. Id. at *3. The court determined that Mr. and Ms. Gibbs failed to state a claim. Id. at *5-6. Two years later, Mr. and Ms. Gibbs again attempted to bring RICO claims against Bank of America and Nationstar—this time in the District of Maryland. See Gibbs v. Bank of Am., N.A., No. 16-CV-2855 (GJH), 2017 WL 1214408, at *6 (D. Md. Mar. 31, 2017). Finding that the allegations regarding defendants’ efforts to undermine the HAMP program were the same as those brought in the Colorado litigation, the court found that res judicata barred both plaintiffs’ RICO claims against Bank of America and Nationstar. Id. at *5-7. So too here. Mr. and Ms. Gibbs’ RICO claims against Bank of America and Nationstar arise from the same transactions as their claims against those companies in the District of Colorado and District of Maryland. And these RICO claims were raised before, in those prior suits. Accordingly, these claims are barred. II. The RICO Claims Against the Remaining Defendants are Barred by Collateral Estoppel. *4 Mr. Gibbs and his wife are collaterally estopped from bringing their claims related to the HAMP program and the foreclosure of their home. “Collateral estoppel, or issue preclusion, prevents parties or their privies from relitigating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002) (citations omitted). The doctrine “applies when: ‘(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits.’ ” Id. at 288-89 (citation omitted). Plaintiffs can be estopped from litigating Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 107 of 240
Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 issues that they fully and fairly litigated in a prior proceeding even against defendants not named in the prior suit. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329 (1979) (explaining that collateral estoppel principles “preclude[ ] a plaintiff from relitigating identical issues by merely switching adversaries”); Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971) (“Permitting repeated litigation of the same issues as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or a lack of discipline and of disinterestedness on the part of the lower courts.”) (citation and internal quotation marks omitted); see also Austin v. Downs, Rachlin & Martin, 114 F. App'x 21, 22 (2d Cir. 2004). The conditions for collateral estoppel are met with respect to Mr. and Ms. Gibbs’ RICO claims relating to the HAMP program. In prior litigation, the couple brought RICO claims related to the HAMP Defendants’ supposed HAMP program racketeering activity, as well as their efforts to bribe state and federal officials to conceal that activity. See Gibbs, 2017 WL 1214408, at *8-10; Gibbs-Squires 2015 WL 196217, at *4-6. Both courts dismissed these claims with prejudice. See Gibbs, 2017 WL 1214408, at *8-10; Gibbs-Squires 2015 WL 196217, at *4-6. Mr. Gibbs and his wife now supplement these claims by adding new defendants. Compl. ¶¶ 173, 354-356, 360-64; Am. Compl. ¶ 18. But because they already had an opportunity to fully and fairly litigate these issues, and a final judgment was entered against them, they are collaterally estopped from relitigating these claims. III. Mr. Gibbs's RICO Claims Relating to Art Theft, His Disbarment, and His Arrest are Collaterally Estopped. Collateral estoppel also bars Mr. Gibbs's claims against the Art Defendants. Mr. Gibbs already litigated his RICO claims arising out of the alleged stolen artwork, his criminal prosecution, and his disbarment in the Middle District of Florida. See Gibbs v. United States, 865 F. Supp. 2d 1127, 1142-46 (M.D. Fla. 2012), aff'd, 517 F. App'x 664 (11th Cir. 2013). The court dismissed these claims with prejudice. Ibid. Mr. Gibbs tried to relitigate the stolen artwork issue again several years later, in a suit brought in the Eastern District of Pennsylvania. Gibbs-Squires v. Cosby, No. 16-CV-768 (MSG), 2017 WL 5515916, at *1 (E.D. Pa. Mar. 7, 2017). His claims were found to be collaterally estopped. Id. at *4-5. Mr. Gibbs now supplements his claims by adding new defendants. But he remains collaterally estopped from re-litigating these claims because he already had a full and fair opportunity to litigate them in the Middle District of Florida, which found his claims lacking. IV. Mr. Gibbs's Remaining Claims are Frivolous. Mr. Gibbs's remaining claims are frivolous. “A court may dismiss a claim as ‘factually frivolous’ if the sufficiently well-pleaded facts are ‘clearly baseless’—that is, if they are ‘fanciful,’ ‘fantastic,’ or ‘delusional.’ ” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)). Mr. Gibbs's remaining allegations easily satisfy this standard. Gibbs alleges a wide-ranging conspiracy whereby South Carolina's Attorney General, a federal judge, two separate law firms, and the HAMP Defendants bribed two federal agencies as well as Fannie Mae and Freddie Mac to conceal changes to his and other homeowners’ loan servicer. Compl. ¶¶ 173, 354-356; Am. Compl. ¶ 18. But that's not all. The HAMP Defendants, a law firm, a federal bankruptcy judge, and her courtroom deputy somehow conspired to ensure that Mr. Gibbs and his wife lost their bankruptcy action. Id. ¶¶ 360-64. In the same breath, Mr. Gibbs claims that Reverend Al Sharpton, the NAACP, and the Black Caucus were bribed to remain silent about the Smithsonian's theft of thousands of paintings by black artists and a “pedophilia ring.” Am. Compl. ¶¶ 5, 19, 29. “[T]he courts have no obligation to entertain pure speculation and conjecture.” Gallop, 642 F.3d at 368. *5 Additionally, a “complaint is frivolous when, among other things, it ‘is based on an indisputably meritless legal theory,’ i.e., it ‘lacks an arguable basis in law.’ ” Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citation and internal quotation marks omitted)). In Tapia- Ortiz, the Second Circuit dismissed as frivolous a RICO conspiracy claim alleging that twenty judges, the Second Circuit's staff attorneys, a district judge, and an Assistant United States Attorney engaged in a RICO conspiracy. Id. at 9-11. The Second Circuit found that the claim lacked even an arguable basis in the law. Id. at 11. The same result follows here. Although he spends nearly two-hundred pages alleging various RICO conspiracies, Mr. Gibbs alleges no facts establishing how the government defendants joined the criminal enterprises; when the conspiracies began; what roles each of the alleged co-conspirators played; how precisely the conspiracies operated; or how he was negatively impacted by these activities. These claims are therefore frivolous. See ibid. Mr. Gibbs is hereby informed that the Court will not tolerate repetitive, frivolous and vexatious litigation and that he may Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 108 of 240
Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 be subject to a filing injunction in this Court if he continues to file similar actions. See Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (per curiam); Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.”) (citations and internal quotation marks omitted). Conclusion Because the defects in Mr. Gibbs's claims (and his wife's crossclaims) are “substantive” and cannot be cured with “better pleading,” leave to amend the complaint is denied. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see Ashmore v. Prus, 510 F. App'x 47, 49 (2d Cir. 2013) (summary order) (noting that leave to amend is futile where barriers to relief cannot be surmounted by reframing the complaint). Mr. Gibbs's motions for a temporary restraining order, a preliminary injunction, and a declaratory judgment are denied as moot. The Clerk of Court is directed to enter judgment dismissing the action. Although Mr. Gibbs paid the filing fee to bring the action, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any in forma pauperis appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. All Citations Not Reported in Fed. Supp., 2022 WL 1469402 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 109 of 240
Gonzalez v. City of New York, Not Reported in F.Supp. (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1998 WL 382055 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Angel GONZALEZ, Plaintiff, v. THE CITY OF NEW YORK; New York City Department of Correction; Warden, Otis Bantum Correctional Center; Corrections Officer Summer, Shield No. 11856, Defendants. No. 97 CIV. 2246(MGC). | July 9, 1998. MEMORANDUM OPINION AND ORDER CEDARBAUM, J. *1 Plaintiff pro se, Angel Gonzalez, brings this action under 42 U.S.C. § 1983. He alleges that while in the custody of the New York City Department of Correction (“NYC DOC”), he was beaten by Correction Officer Summer. This is a motion to dismiss the complaint as against the City of New York, Warden of Otis Bantum Correctional Center (the “Warden”) and NYC DOC pursuant to Fed.R.Civ.P. 12(b)(6). On April 22, 1998, a letter was sent to Gonzalez directing him to respond to this motion by June 22, 1998. The letter advised Gonzalez that if he did not respond by June 22, the motion would be decided on the basis of the existing record, and the City of New York, New York City Department of Correction and Warden of Otis Bantum Correctional Facility might be dismissed from the action. Gonzalez has not responded. For the reasons that follow, the motion to dismiss is granted. BACKGROUND The complaint alleges that plaintiff was assaulted by Correction Officer Summer while he was incarcerated at Otis Bantum Correctional Center on Rikers Island, New York City. According to the complaint, as plaintiff was coming into the facility's recreation area from the “yard,” he passed through a metal detector which registered that he had a metal object on his person. Defendant Summer then swore at plaintiff and told him to hurry up. As plaintiff passed through the metal detector a second time, he said to Summer, “You don't have to act like that!” Summer then struck plaintiff in the face repeatedly until he lost consciousness. According to the complaint, when plaintiff regained consciousness, he found Summer “still abusing” him and swearing at him. Plaintiff left, found his way back to the housing area and felt as if he “had been hit with a bat to the face .” Plaintiff alleges that he suffered a cut under his left eye, serious swelling of his face and head, and lacerations of his scalp. He alleges that black and blue shadows still show under his eyes, and that he suffers from headaches. He seeks damages in the amount of three million dollars. DISCUSSION On a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations of the complaint must be accepted as true, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), and all reasonable inferences must be drawn in favor of the plaintiff, Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). A complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). 1. NYC DOC and the City of New York Defendants argue that Gonzalez cannot assert a claim against NYC DOC based on any legal theory because it is not a suable entity. They also contend that the complaint fails to state a claim against the City of New York because it does not allege that the actions complained of were the result of an official policy, custom or practice of the City of New York. *2 In addition to the defect that NYC DOC is an agency of the City of New York that is not a suable entity, 1 the complaint fails to state a claim upon which relief can be granted against either NYC DOC or the City. To state a claim under § 1983, a plaintiff must allege that a person acting under color of state law deprived him of a right, privilege or immunity guaranteed by federal law. To state a claim against a municipality, a plaintiff must also plead that the wrongful action alleged was the result of an official policy, custom or practice of the municipality, and that that policy caused plaintiff's injury. Monell v. Department of Social Services, 436 U.S. 658, 690–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 110 of 240
Gonzalez v. City of New York, Not Reported in F.Supp. (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 The complaint, however, alleges no official policy, custom or practice resulting in injury to Gonzalez. Indeed, the complaint does not even mention the City of New York or NYC DOC, except to the extent that they are listed as parties. 2. Warden of Otis Bantum Correctional Center Defendants also urge dismissal of the complaint against the Warden, on the ground that there are no allegations in the complaint concerning that defendant. When an individual defendant is sued under § 1983, that defendant's personal involvement in the alleged constitutional deprivation is a prerequisite to an award of damages. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). For a claim under § 1983, a complaint sufficiently alleges personal involvement of a supervisory official if it alleges one of the following: (a) direct participation in the alleged wrong; (b) failure to remedy a violation after receiving notice of it; (c) creation of a policy or custom under which unconstitutional practices occur; or, (d) grossly negligent management of subordinates who cause the constitutional violation. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). A § 1983 claim against a municipal official in his official capacity is treated as a claim against the municipality itself. Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). As noted above, § 1983 imposes liability on a municipality only when the action that is alleged to be unconstitutional implements or executes an official policy or custom. See Monell, 436 U.S. at 690–91. From the complaint, it is unclear whether the warden is being sued in his personal or official capacity. However, pro se complaints, if possible, should be construed as asserting both claims. Jackson v. Dinkins, 1995 WL 657075, at *1 (S.D.N.Y. Nov.8, 1995) (citing Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993)). The complaint does not allege the personal involvement of the Warden. The complaint mentions the Warden only in the caption, and fails to allege any act or omission by that party. See Crown v. Wagenstein, 1998 WL 118169, at *1 (S.D.N.Y. Mar.16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997) (same). *3 Finally, to the extent that the complaint asserts an official- capacity claim against the Warden, the claim fails for the same reason that the claims against the City of New York and NYC DOC fail. There are no allegations of any municipal policy or custom that the Warden was executing, or that such a policy or custom caused the alleged violation of the plaintiff's constitutional rights, as required by Monell. The absence of any such allegation precludes a finding of liability against the Warden in his official capacity. Accordingly, the complaint fails to the state a claim against the Warden upon which relief can be granted. CONCLUSION For the foregoing reasons, the motion to dismiss the complaint as against defendants the City of New York, New York City Department of Correction, and Warden of Otis Bantum Correctional Facility is granted. SO ORDERED. All Citations Not Reported in F.Supp., 1998 WL 382055 Footnotes 1 Defendants correctly point out that New York City agencies, such as NYC DOC, are organizational subdivisions of the City of New York lacking independent legal existence and are not themselves subject to suit. See, e.g., Adams v. Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997) (“where a plaintiff has named the Department of Corrections as a defendant, he has sued a non-suable entity”). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 111 of 240
Gonzalez v. City of New York, Not Reported in F.Supp. (1998) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 112 of 240
Hall v. Clinton County, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 1923236 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Milan HALL, Plaintiff, v. CLINTON COUNTY, Defendant. 8:18-CV-1405 (GTS/CFH) | Signed 04/21/2020 Attorneys and Law Firms MILAN HALL, Plaintiff, Pro Se, 36 Bell Road, Chazy, NY 12921. OF COUNSEL: THOMAS K. MURPHY, ESQ., MURPHY BURNS LLP, Counsel for Defendant, 407 Albany Shaker Road, Loudonville, NY 12211. DECISION and ORDER GLENN T. SUDDABY, Chief United States District Judge *1 Currently before the Court, in this pro se civil rights action filed by Milan Hall (“Plaintiff”) against Clinton County (“Defendant”), is Defendant's motion to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted. (Dkt. No. 13.) For the reasons set forth below, Defendant's motion is granted. I. RELEVANT BACKGROUND A. Plaintiff's Amended Complaint Plaintiff filed an Amended Complaint in accordance with this Court's Decision and Order of August 26, 2019. (Dkt. No. 11 [Decision and Order filed Aug. 26, 2019].) Generally, in his Amended Complaint, Plaintiff alleges that, “commencing on the 28 th day of June 2012,” Defendant has violated his rights in five ways by using his marriage license as proof of paternity: (1) Defendant has stripped him of his status as a man and termed him a non-custodial parent and obligor; (2) Defendant has wrongfully denied him the right to raise his child as he pleases and to do so in privacy; (3) Defendant has damaged his reputation in his community; (4) Defendant has denied him the right to a trial by jury before ordering him to pay child support; and (5) Defendant denied him his right to due process when it failed to disclose to him the legal consequences that would result from the signing of his marriage license. (Dkt. No. 12 [Pl.’s Am. Compl.].) Generally, based on these factual allegations, and construed with special liberality, Plaintiff's Amended Complaint claims that Defendant violated his rights to due process under the Fifth and Fourteenth Amendments, and his right to a jury trial under the Sixth and/or Seventh Amendments to the United States Constitution and 42 U.S.C. § 1983. (Id.) B. Parties’ Briefing on Defendant's Motion to Dismiss 1. Defendant's Memorandum of Law Generally, in its motion to dismiss Plaintiff's Amended Complaint, Defendant makes two arguments. (Dkt. No. 13, Attach. 2 [Def.’s Mem. of Law].) First, Defendant argues that Plaintiff's Amended Complaint fails to state a claim upon which relief can be granted. (Id. at 7-8.) More specifically, Defendant argues that Plaintiff has not pled facts plausibly suggesting the existence of any municipal custom, policy, or practice that caused his alleged constitutional deprivations, but rather has merely alleged that New York's valid paternity laws are not fair. (Id.) Defendant also argues that Plaintiff is essentially seeking a nullification of a New York State Family Court Order of Child Support against him, triggering the domestic relations exception to federal court jurisdiction, and thus, even if the Court were to find that Plaintiff has stated a claim, the Court would not possess subject-matter jurisdiction over any such claim. (Id.) Second, Defendant argues that, based on the Amended Complaint's own factual allegations, Plaintiff's claims are untimely as a matter of law. (Id. at 8-9.) More specifically, Defendant argues that the statute of limitations for personal injury actions in New York is three years from when the plaintiff knew or had reason to know of the injury, and that the Amended Complaint expressly alleges that the child support proceedings were initiated on June 28, 2012; yet Plaintiff did not file this lawsuit until December 2018. (Id.) Defendant argues that any allegations that the injury is ongoing (because Plaintiff is under a continuous obligation to pay child support) would not render his claim timely under the continuing violation doctrine because, based on the factual allegations of the Amended Complaint, he was (or reasonably should have been) aware of that injury as early as June 28, 2012. (Id.) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 113 of 240
Hall v. Clinton County, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 2. Plaintiff's Opposition Memorandum of Law *2 Generally, in opposition to Defendant's motion, Plaintiff makes four arguments. (Dkt. No. 15, at 4-5 [Pl.’s Opp'n Mem. of Law].) First, Plaintiff argues that he is not alleging that Defendant failed to inform him of the responsibilities that could possibly result from children born during his marriage at the time he signed the marriage license, but that “Defendants failed to employ Due Process Safeguards to ensure that the rights of the Plaintiff were protected, and as a result the Plaintiff was defaulted into a Title IV- D case from which he now suffers the deprivation of his inherent rights”; however, he concedes that “[t]his deprivation is extrinsically linked to the Defendants failure to employ due process safeguards when presenting the Plaintiff with a marriage certificate, the legal instrument that would later be used to default the Plaintiff into a Title IV-D case.” (Id. at 4.) Pointing to a federal statute requiring a state to have a civil process for voluntarily acknowledging paternity that includes the provision of due process and an explanation by the state of the individual's rights and responsibilities of acknowledging paternity, he appears to argue that Defendant violated his right to due process by summoning him to a “fact finding” hearing before a “Family Court Support Magistrate” because the Federal Manual of Child Support requires that such a proceeding should not have been presided over by “a judge of the court.” (Id.) Second, Plaintiff argues that he is not merely asking the Court to overturn the child support order as Defendant suggests, but is seeking a remedy for the violation of his constitutional rights. (Id. at 4-5.) Third, Plaintiff argues that it is a crime to deprive an individual of his or her constitutional rights. (Id. at 5.) Fourth, Plaintiff argues that his claims should not be found to be untimely because he promptly filed his original Complaint in 2018 as soon as he discovered that his rights had been violated. (Id. at 5.) II. GOVERNING LEGAL STANDARDS It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de novo review). Because such dismissals are often based on the first ground, some elaboration regarding that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a “short and plain statement” and requiring that the statement “show[ ]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2). On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above- described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212 n.17 (citing Supreme Court cases) (emphasis added). The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). *3 Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 114 of 240
Hall v. Clinton County, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id. As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks and citations omitted). However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Id. (citations omitted). Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case. 1 III. ANALYSIS *4 After carefully considering whether Plaintiff's Amended Complaint should be dismissed, the Court answers this question in the affirmative for the reasons stated in Defendant's memorandum of law. (Dkt. No. 13, Attach. 2, at 7-9 [Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis. As an initial matter, the Court finds that Plaintiff's claims, to the extent that they seek an invalidation of a Family Court child support order, are barred by the Rooker-Feldman doctrine. Under the Rooker-Feldman doctrine, a federal court lacks subject-matter jurisdiction where the following four elements are met: (1) the plaintiff has lost in state court; (2) the plaintiff complains of injuries caused by the state court judgment; (3) the plaintiff invites the district court to review and reject the state court judgment; and (4) the state court judgment was rendered before the district court proceedings commenced. Ganiyu v. Lopez, 19-CV-11605, 2020 WL 1467356, at *2 (S.D.N.Y. Mar. 25, 2020) (citing Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 [2d Cir. 2005]). It is evident from the Amended Complaint that Plaintiff received a child support order against him, that he now complains that the proceedings that resulted in that order caused his alleged constitutional injuries, and that the child support order was rendered before he commenced this action. Additionally, although Plaintiff frames his argument in terms of constitutional violations and inadequacies in the proceedings underlying the support order, such arguments amount to little more than a request for this Court to assess whether the Family Court's reliance on the marriage license to establish paternity was correct, something which this Court is not permitted to do. See Kramer v. Dane, 17-CV-5253, 2018 WL 4489284, at *3 (E.D.N.Y. Sept. 19, 2018) (“[T]he fact that plaintiffs assert that their constitutional rights were violated during the state court proceedings does not except their claims from the Rooker-Feldman doctrine.”); Davis v. Westchester Cnty. Family Court, 16-CV-9487, 2017 WL 4311039, at *8 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 115 of 240
Hall v. Clinton County, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 (S.D.N.Y. Sept. 26, 2017) (finding “[t]he fact that Plaintiff is challenging the constitutional adequacy of the proceedings is of no help to him” in precluding application of the Rooker- Feldman doctrine to his claims) (collecting cases). 2 *5 To the extent that Plaintiff seeks entitlement to relief beyond a nullification of the child support order that would be excepted from jurisdiction by the Rooker-Feldman doctrine, the Court also finds that Plaintiff's claims pursuant to 42 U.S.C. § 1983 fail under Fed. R. Civ. P. 12(b)(6) as time- barred. Plaintiff attached to the Amended Complaint a copy of the Family Court's summons to a fact-finding hearing to be held on July 30, 2012, before Support Magistrate Michael J. Howley, and a copy of the Petition for Child Support filed against Plaintiff that was the basis for that hearing. (Dkt. No. 12, Attach. 1.) The Amended Complaint alleges that it was the commencement of the proceedings against Plaintiff through this petition in June 2012 that caused the deprivation of his rights. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) The Supreme Court has held that, “[b]ecause § 1983 claims are best characterized as personal injury actions ... a State's personal injury statute of limitations should be applied in all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240-41 (1989). The Supreme Court found in particular that New York's general or residual statute related to personal injury actions should be applied, which sets a three-year statute of limitations. Owens, 488 U.S. at 249-50; accord, Phillips v. City of New York, 304 F. Supp. 3d 305, 311 (E.D.N.Y. 2018). Such statute of limitations begins “when a plaintiff has a complete and present cause of action, that is when the plaintiff can file suit and obtain relief,” or, in other words, “when the wrongful act or omission results in damages, ... and once the plaintiff knows or has reason to know of the injury which is the basis of his action.” McDonough v. Smith, 898 F.3d 259, 265 (2d Cir. 2018) rev'd on other grounds McDonough v. Smith, 139 S.Ct. 2149 (2019). In this case, Plaintiff acknowledges in his Amended Complaint that his alleged constitutional harms occurred as a result of the child support proceedings against him in late June 2012. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) It is therefore reasonable to find that Plaintiff knew or should have known of the proceedings against him and the child support order at the time those events occurred in 2012. Of note, Plaintiff does not allege that he was never informed of either the proceedings against him or of the child support order itself until a later time. Nonetheless, Plaintiff did not file his initial Complaint in this action until December 3, 2018, more than six years later. (Dkt. No. 1 [Pl.’s Compl.].) Although Plaintiff argues in his opposition memorandum of law that he “promptly filed a complaint with the Federal District Court as soon as he discovered his rights had indeed been violated,” he offers no explanation in either the Amended Complaint or his opposition memorandum of law as to why he seemingly did not know of the alleged constitutional violations until 2018. (Dkt. No. 15, at 5 [Pl.’s Opp'n Mem. of Law].) Additionally, it does not matter when Plaintiff actually discovered a violation. The relevant consideration is when he knew or had reason to know of the alleged injury, and without any factual allegation that Plaintiff was somehow left in the dark for six years about the basis for the child support proceedings and order against him (despite the factual statement in the order that the proceeding against Plaintiff was authorized because he and the child's mother had gotten married on July 24, 2010), the Court cannot find that he has alleged facts plausibly suggesting that he did not have reason to know of the alleged injury as long ago as June of 2012. As a result, the Court finds that Plaintiff's claims are barred by the statute of limitations. The Court also finds that tolling is not warranted under the circumstances alleged. Although the Second Circuit recognizes the continuing violation doctrine, it has qualified that the doctrine applies only to claims “composed of a series of separate acts that collectively constitute one unlawful practice,” or “claims that by their nature accrue only after the plaintiff has been subjected to some threshold amount of mistreatment.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015). Although Plaintiff alleges that the violations of his rights “continue to this day” because he is still subject to the child support order, the fact that he continues to suffer an ongoing injury does not bring his claim under the auspices of the continuing violation doctrine. In other words, each payment Plaintiff is required to make under the child support order is not a new and separate act and injury, but merely a consequence of the initial act, namely, the proceedings and the issuance of the child support order in 2012. Plaintiff had a fully formed claim upon the occurrence of the relevant proceedings and the issuance of the child support order. The Court therefore declines to find that the continuing violation doctrine applies to Plaintiff's claims, and finds instead that there is no other apparent basis for tolling the statute of limitations. Plaintiff's claims pursuant to 42 U.S.C. § 1983 are therefore time-barred and must be dismissed. *6 In the alternative to the finding that Plaintiff's claims are time-barred and/or covered by the Rooker-Feldman doctrine, the Court finds that he has not alleged facts plausibly stating any claim upon which relief can be granted. As an initial Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 116 of 240
Hall v. Clinton County, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 matter, Defendant is correct that Plaintiff has again failed to allege any facts plausibly suggesting a municipal custom, policy, or practice to merit holding Defendant liable for the alleged constitutional violations. The only apparent policy identified by Plaintiff is the policy of allowing use of a marriage license to create a presumption of paternity. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) However, as Defendant argues, this “policy” is in fact a long-standing part of New York common law, not merely a practice or rule put in place by Defendant or the Clinton County Family Court. See In re Findlay, 253 N.Y. 1, 6-7 (N.Y. 1930) (discussing the presumption of legitimacy). Notably, Plaintiff has not alleged facts plausibly suggesting that Defendant had a policy of disallowing rebuttal of the presumption of legitimacy or any other action of that nature that would have prevented Plaintiff from providing evidence to rebut that presumption. As a result, Plaintiff has not alleged facts plausibly suggesting that the alleged constitutional violations were a result of any policy imposed by Defendant, and the Court therefore finds that Defendant cannot be held liable for the claims asserted against it. Even if Plaintiff had alleged facts plausibly suggesting the existence of a municipal custom, policy, or practice, the Court finds that Plaintiff has not stated a claim upon which relief can be granted. Many of the claims asserted by Plaintiff (i.e., that Defendant has stripped him of his status as a man, violated his right to privacy, violated his right to raise his child as he pleases, violated his right to trial by jury, and defamed him) are either not facially viable legal claims under the circumstances or are so vaguely asserted (i.e., without sufficient supporting factual allegations) that they cannot be found to plausibly state a claim upon which relief can be granted. The Court therefore finds little need to discuss these claims in any detail, but finds that they must be dismissed. With regard to Plaintiff's due process claim, and particularly Plaintiff's argument that Defendant's acceptance of the marriage license as proof of paternity was a violation of his right to due process, as the Court has previously found, Plaintiff has not alleged facts plausibly suggesting that he was denied the opportunity to present counter-evidence to overcome the presumption that a child born in the context of a marriage is the child of the married spouses. Rather, the summons attached to the Amended Complaint notified him of a fact-finding hearing that preceded the issuance of the child support order. Plaintiff has not alleged facts plausibly suggesting that he did not receive sufficient notice of the commencement of the proceedings before the child support order was enacted against him (or that he even attended the hearing). Moreover, the summons specifically states that “failure to appear will result in the entry of an order on default unless service has been made by mail alone, in which event no default may be entered without proof satisfactory to the court that you have received actual notice of the commencement of this proceeding.” (Dkt. No. 12, Attach. 1, at 1.) Without any factual allegation plausibly suggesting that Plaintiff (a) lacked notice of the hearing such that a default was improper, or (b) attended the hearing but was denied the opportunity to provide evidence to counter the presumption created by the marriage license, the Court cannot find that he has alleged facts plausibly suggesting that Defendant violated his due process rights in relying on the marriage license when issuing the child support order. Plaintiff also argues that his due process rights were violated by the fact that a Support Magistrate of the Family Court granted the petition for child support because the Federal Manual of Child Support requires that “[p]roceedings conducted pursuant to either the expedited judicial or expedited administrative process must be presided over an individual who is not a judge of the court.” (Dkt. No. 15, at 4 [Pl.’s Opp'n Mem. of Law].) However, even if Plaintiff has alleged facts plausibly suggesting that Defendant violated this provision of the Federal Manual of Child Support (a finding that the Court does not make), he has made no factual allegation plausibly suggesting how any such violation in turn violated his due process rights under the United States Constitution. 3 *7 Having already afforded Plaintiff an opportunity to amend his Complaint, the Court finds that it need not grant Plaintiff an opportunity to amend the Amended Complaint to attempt to cure any of the above-mentioned deficiencies, In any event, it finds those deficiencies to be substantive in nature, due to the findings that the Court lacks subject-matter jurisdiction to consider any claims that fall under the Rooker- Feldman doctrine, and that any other potential claims are untimely (and Plaintiff has not offered any indication that he could allege facts to plausibly suggest that those claims were in fact timely). ACCORDINGLY, it is ORDERED that Defendants’ motion to dismiss (Dkt. No. 13) is GRANTED; and it is further Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 117 of 240
Hall v. Clinton County, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 ORDERED that Plaintiff's Amended Complaint (Dkt. No. 12) is DISMISSED. All Citations Not Reported in Fed. Supp., 2020 WL 1923236 Footnotes 1 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint (and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where a document is not incorporated by reference, the court may neverless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted). 2 The Court notes that, although Defendant argues that subject-matter jurisdiction is lacking over Plaintiff's claims based on the domestic relations exception, the Second Circuit recently held that the domestic relations exception does not apply in federal-question cases. Deem v. DiMell-Deem, 941 F.3d 618, 621 (2d Cir. 2019). Although the Second Circuit also found that, notwithstanding the inapplicability of the domestic relations exception, the separate domestic relations abstention doctrine does apply to federal-question cases, the Court need not determine whether abstention would be appropriate in this case based on its finding that the Rooker-Feldman doctrine divests the Court of subject-matter jurisdiction over any claims that would be covered by that abstention. Finally, the Court notes that it may sua sponte consider the Rooker-Feldman doctrine (even though Defendant never invoked it) because pursuant to Fed. R. Civ. P. 12(h)(3), the Court may sua sponte consider whether it lacks subject-matter jurisdiction over a claim. 3 Of note, the New York Family Court Act indicates that support magistrates are in fact not “a judge of the court” as Plaintiff appears to assert. See N.Y. Fam. Ct. § 439(a) (indicating that, although support magistrates are appointed to have authority over certain matters related to support proceedings, their findings in many cases are limited or overseen by “a judge of the court”). Given that Plaintiff himself acknowledges that the decision-maker on the support petition was a “Family Court Support Magistrate” (an acknowledgment that is Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 118 of 240
Hall v. Clinton County, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 confirmed by the attachment to the Amended Complaint), the Court finds that Plaintiff has not alleged facts plausibly suggesting that the use of a support magistrate was in anyway contrary to federal law or policy. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 119 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 5891888 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Andrea LAPIETRA, Individually and as Power of Attorney, and Deashon Tarver, Plaintiffs, v. CITY OF ALBANY POLICE DEPARTMENT, et al., Defendants. 9:19-CV-1527 (TJM/TWD) | Signed 10/05/2020 Attorneys and Law Firms ANDREA LaPIETRA, Plaintiff, pro se, 1030 Washington Ave. #2, Albany, NY 12203. DEASHON TARVER, Plaintiff, pro se, Monte Mario Motel, Room 21, 947 New Loudon Road, Latham, NY 12110. REPORT-RECOMMENDATION AND ORDER THÉRÈSE WILEY DANCKS, United States Magistrate Judge I. INTRODUCTION *1 This action was commenced by two pro se plaintiffs, Deashon Tarver (“Tarver”) and Andrea LaPietra (“LaPietra”), individually and “as Power of Attorney” for Tarver, pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Dkt. No. 1.) A complete history of this action to date can be found in the prior Decisions and Orders of this Court filed on January 15, 2020, February 26, 2020, and April 6, 2020. (See Dkt. Nos. 4, 11, 13.) The Court previously granted LaPietra's motion to proceed in forma pauperis and dismissed any claims that LaPietra asserted on behalf of Tarver. (Dkt. No. 4 at 4-5.) The Court also directed Tarver to comply with the filing fee requirements. Id. On May 22, 2020, Tarver complied with the Court's directives and submitted a motion to proceed in forma pauperis (“IFP Application”). (Dkt. No. 20.) Upon review of Tarver's IFP application, the Court finds that he has demonstrated sufficient economic need. See 28 U.S.C. § 1915(a)(2). Accordingly, the Court grants Tarver's IFP Application. The Court shall now consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. (Dkt. No. 1.) The Court will also address Tarver's motion to appoint counsel (Dkt. No. 21) and LaPietra's motion to appoint counsel (Dkt. No. 6), which was previously held in abeyance. (See Dkt. No. 11.) II. SUFFICIENCY OF THE COMPLAINT A. Standard of Review Having found that Plaintiffs meet the financial criteria for commencing this action in forma pauperis, and because Plaintiffs seek relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. 1 Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that – ... (B) the action ... (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). 2 *2 Similarly, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief may be granted; or ... seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (noting that Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee). Additionally, when reviewing a complaint, the Court may also look to the Federal Rules of Civil Procedure (“Federal Rules”). Rule 8 of the Federal Rules provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Hudson v. Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 120 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995) (other citations omitted)). Although “[n]o technical form is required,” the Federal Rules make clear that each allegation contained in the pleading “must be simple, concise, and direct.” Fed. R. Civ. P. 8(d). Further, Rule 10 of the Federal Rules provides in pertinent part that: “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence – and each defense other than a denial – must be stated in a separate count or defense. Fed. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (quotation marks and citations omitted). A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 of the Federal Rules “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009). Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Id. (citation omitted). B. Summary of the Complaint *3 The incidents that form the foundation for the Complaint occurred on December 14, 2016, and while Tarver was confined at Albany County Correctional Facility (“Albany County C.F.”). The Complaint totals 259 pages and is a rambling, disjointed mix of conclusory allegations, that is, in large part, comprised of excerpts that appear to have been cut and pasted throughout the document from legal articles, statutes, and cases. (Dkt. No. 1. 3 ) Named as defendants are: City of Albany Police Department, Officer Jan Mika, Officer Adam Iannacito, Albany County C.F., CO Burns, Sgt. Remillard, Unknown Officers, Unknown Parole Officers, Unknown Plain Clothes Officer, Unknown Sgt., Unknown Correctional Officers, and Unknown Medical and Dental Workers. The following facts are set forth as alleged by Plaintiffs. On December 14, 2016, Plaintiffs were at LaPietra's second- floor apartment located at 1030 Washington Avenue, #2, in Albany, New York. (Dkt. No. 1-1 at 5. 4 ) Tarver, identified as LaPietra's “loved one” and boyfriend, was on parole supervision. Id. LaPietra left “to pick something up” and Tarver stayed at the apartment. Id. She left her apartment keys with Tarver. Id. On the way back to the apartment, LaPietra received a telephone call from her “case coordinator” informing her that Albany police officers were outside her apartment. Id. When she returned to the apartment, Tarver “was sitting and being detained, handcuffed in the back seat of a police vehicle that was parked in front of the apartment.” Id. 5 Tarver was “under arrest” but the police officers did not tell Tarver “what he was under arrest for” and did not read him his “Miranda” rights. Id. “They threatened that they were going to taser him[.]” Id. LaPietra states her “apartment was open and the police” had been through the apartment and her personal belongings including “paperwork pertaining to [her] health, government paperwork, [her] garbage, and everything.” Id. at 5, 6. LaPietra was also questioned by police officers and a sergeant. Id. at 6. She stated Tarver did not live with her but admitted he sometimes stayed overnight “with the permission of his Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 121 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 PO.” Id. LaPietra was also asked other personal questions, including “confidential” conditions of her residence program. Id. at 6. “They” also questioned LaPietra about “some items that were in the corner of the dining room” because “they suspected that those items were stolen.” Id. at 7. Officer Jan Mika said to LaPietra, “oh by the way some parole officers were here earlier.” Id. at 8-9. She thought that was a “strange comment to make at the time because it did not fit into the context of what [they] were speaking about.” Id. at 9. 6 *4 LaPietra “was outside with the officers they asked [her] to go sit in [her] car then another officer said no stand over here to the side of the driveway.” Id. at 7. LaPietra states she was “detained” and “questioned” for more than twenty-minutes and her apartment was searched without a warrant. Id. at 7, 15-6. During the course of Tarver's arrest, he was “pushed up against a police vehicle, his earring was ripping out of his ear ... the police then threated to use a Taser on him ... and then put him on the ground.” Id. at 101. Tarver was arrested without a warrant and charged with petty larceny. Id. at 7. Tarver was “arraigned judicially for a misdemeanor” and “maliciously prosecuted for a felony.” Id. at 11. Tarver ultimately “took a plea deal.” Id. at 13. The Complaint states that defendant “law enforcement officers observed the illegal nature of the search and seizure of the residence and willfully ignored it and participated.” Id. at 10. Plaintiffs claim that “fellow officers had an opportunity to intervene to prevent further harm and to report the misconduct. Yet they failed to act or intervene.” Id. The Complaint further claims the Sergeant of the Albany Police Department “participated” in Tarver's arrest, was responsible for the supervision of the defendant police officers, failed to intervene and prevent the ongoing misconduct of the officers, “which resulted in the arrest and prosecution” of Tarver. Id. at 10-11. 7 Later that night, “they” took Tarver from the police station to the emergency room at Albany Medical Center “because he tried to hurt himself.” Id. at 92. Tarver's hands and feet were shackled. Id. at 92-93. At the emergency room, Tarver was denied his right civil rights to use the bathroom and was subjected to excessive force. Id. Although Tarver was permitted to use the bathroom at least once while at the emergency room, which “went well,” when it “came time for him to go to the bathroom again ... the police said no.” Id. Tarver became “emotionally upset and swore” and “stood up.” Id. “They tackled him to try and force him to lay down onto the hospital bed.” Id. “Then they shot him with Benadryl.” Id. “An officer in the process of tackling him fractured his pinky finger. Then they turned around and charged [Tarver] with Felony Assault on an Officer.” Id. But Tarver had “no intention to either interfere with or assault an officer nor did he assault the officer.” Id. The use of force aggravated Tarver's preexisting “AC separation.” (Dkt. No. 1-1 at 5.) Tarver was confined at Albany County C.F. from December 2016 until April 2018. During his confinement, Tarver did not receive proper medical care for “an AC separation.” (Dkt. No. 1-1 at 3-4, 85, 89.) Although x-rays were taken of Tarver's shoulder, he was told by “a doctor” that, “[w]e don't do surgery here.” Id. at 85, 126; Dkt. No. 1-6 at 27. Tarver received no other treatment or care for his shoulder complaints and his requests for an MRI and a visit with his personal physician were denied. (Dkt. No. 1-1 at 136; Dkt. No. 1-6 at 27.) *5 During his confinement at Albany County C.F., Tarver, who suffers from “Schizo Affective Disorder,” depression, and PTSD, received seven different types of psychiatric medicine that were not administered “as scheduled.” (Dkt. No. 1-1 at 3, 124; Dkt. No. 1-6 at 73.) Tarver was not provided with trauma therapy or a social worker. (Dkt. No. 1-1 at 136.) From October 2017 until April 2018, Tarver was denied adequate dental care for “extreme pain” that impacted his daily activities. (Dkt. No. 1-1 at 4, 124; Dkt. No. 1-6 at 24.) Tarver submitted numerous medical call slips and waited “months” to see a dentist. (Dkt. No. 1-1 at 124; Dkt. No. 1-6 at 22, 24.) When he finally saw a nurse in late October 2017, the nurse informed him that he would “see the dentist in five days” and gave him Motrin for his pain. (Dkt. No. 1-1 at 126; Dkt. No. 1-6 at 22-23.) When Tarver saw the dentist, he was told that there was an “issue with his wisdom teeth and a filling in another tooth” but the dentist “did nothing.” (Dkt. No. 1-1 at 126.) In November 2017, Tarver was given Amoxycillin, however, the facility records do not indicate that he suffered from decay or infection. Id. Tarver continued to suffer from pain and was told, “we don't do root canals here.” Id. at 24; Dkt. No. 1-1 at 126. As a result, Tarver had a “tooth fall straight out of his mouth” while at Albany County C.F. (Dkt. No. 1-1 at 126; Dkt. No. 1-6 at 6, 23.) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 122 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Tarver also claims that his weight, blood sugar, and sleep apnea were not properly monitored at the facility. (Dkt. No. 1-1 at 129; Dkt. No. 1-6 at 7, 27.) On October 23, 2017, LaPietra wrote to Melanie Trimble (“Trimble”) at the Capital Region ACLU, to complain about Tarver's medical and dental care. (Dkt. No. 1-1 at 125.) Trimble relayed LaPietra's concerns to Michael Lyons (“Lyons”), who was surprised that there was a dentist at Albany County C.F. Id. LaPietra also called the Sheriff's Office and spoke to Mr. Newman (“Newman”). Id. Newman told LaPietra to speak with a sergeant or superintendent during a visit with Tarver, but that the sergeant “can't do anything.” Id. In December 2017, LaPietra wrote to the Commission of Correction and Inspector General's office to complain about Tarver's medical and dental care. Id. at 119-20. The Commission responded to Tarver and instructed him to file a grievance. Id. at 126-27. On March 9, 2018, Tarver received a letter from Prisoner Legal Services “about his rights.” (Dkt. No. 1-1 at 4; Dkt. No. 1-6 at 1, 25.) On March 13, 2018, one day after LaPietra filed “papers for this case in the Supreme Court Clerk's office,” Tarver was assaulted by defendant C.O. Burns. Id. The assault occurred while another officer was performing “a squat and cough” of Tarver in his cell. Id. Burns willfully entered Tarver's cell “for the purposes of assault[.]” (Dkt. No. 1-1 at 148-52; Dkt. No. 1-6 at 25-26.) Burns told Tarver that he was not “coughing properly,” pushed him onto the bed, punched him in the face, and sprayed him with mace. Id. At the time of the assault, Tarver was naked and in a squat position, with his back facing the officers. Id. Defendant Sgt. Remillard was present during the assault and did not intervene on Tarver's behalf. Id. Tarver was taken to the nurse so that his eyes could be flushed. (Dkt. No. 1-1 at 148-152; Dkt. No. 1-6 at 25-26.) As a result of being sprayed with mace, his face was swollen and his eyes were “red and bloodshot.” (Dkt. No. 1-6 at 25-26.) *6 After the incident, Tarver was placed in “lockdown” without any writing utensils, legal materials, or mail. (Dkt. No. 1-1 at 129, 143; Dkt. No. 1-6 at 26-27.) The “charges” surrounding his lockdown were not properly or timely presented to him, he was not provided with an assistant related to the disciplinary charges, and he was terminated from his job. (Dkt. No. 1-1 at 164-66; Dkt. No. 1-6 at 26-27.) Tarver's property, including letters and books, were confiscated. (Dkt. No. 1-1 at 174, 178.) Tarver was also denied any outdoor or recreational time. Id. at 168. In March 2018, LaPietra visited Tarver. (Dkt. No. 1-1 at 156.) At that time, Burns was “laughing” about the assault and told LaPietra that Tarver was a “bad boy,” who hadn't coughed for him. Id. LaPietra telephoned the Commission of Corrections to report the assault and mailed a letter on April 2, 2018, to officially complain about the assault, Tarver's inability to file grievances, and mail tampering. Id. at 162. On May 3, 2018, LaPietra called the Commission of Corrections, spoke to Debbie Clark (“Clark”) and reported the March 2018 assault. Id. at 179. Clark would not share any information with LaPietra. Id. During his confinement at Albany County C.F., Tarver was “blocked from and denied grievance[s]” related to medical and dental care and “solitary confinement in relation to his assault.” (Dkt. No. 1 at 2; Dkt. No. 1-1 at 127-128, 141 150; Dkt. No. 1-6 at 27.) The facility also “interfered” with his legal mail. (Dkt. No. 1-1 at 123-24, 144.) For example, Tarver sent a letter to “Judge Keefe,” a “consultant” with the Center for Law and Justice. Id. Tarver marked the envelope “Attorney Mail” and placed an address on it. Id. at 122-23. The mail did not reach the intended recipient and “may have affected his rights to bring a claim against the municipality in a timely manner.” Id. at 123-24. Tarver was released from “solitary” in April 2018 and transferred to Downstate Correctional Facility, shortly thereafter. Id. at 129. LaPietra alleges that Albany County C.F. would not allow her to wear “a Native American necklace into the facility” in violation of her First Amendment rights. (Dkt. No. 1-1 at 190-193.) Construing the Complaint liberally, Tarver asserts the following: (1) Fourth Amendment claims for unreasonable search and seizure, false arrest, excessive force, and malicious prosecution; (2) Fourteenth Amendment claims for excessive force, failure-to-protect, and conditions of confinement; (3) First Amendment retaliation claims; (5) Fourteenth Amendment claims related to his medical and dental care; (6) Fourteenth Amendment due process claims; (7) First Amendment access to court and mail interference claims; (8) constitutional claims related to the grievance process; (9) Fourteenth Amendment equal protection claims; (10) Sixth Amendment claims related to the right to counsel; (11) state law claims; and (12) claims pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (See Dkt. No. 1-1 at 5, 10, 11, 17, 88, 96, 97, 102, 105, 113, Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 123 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 127, 128, 146, 152; 164, 172, 182; Dkt. No. 1-6 at 21-27.) LaPietra asserts the following: (1) Fourth Amendment claims for unreasonable search and seizure and false arrest; (2) state law claims; and (3) First Amendment freedom of religion claim. (See Dkt. No. 1-1 at 5, 10, 11, 17, 88, 190-193.) Plaintiffs seek unspecified injunctive relief, monetary damages, and an order allowing them to file a late notice of claim in state court. (Dkt. No. 1 at 6; Dkt. No. 1-1 at 3, 184-85, 1-6 at 1-2. 8 ) For a more complete statement of Plaintiffs’ claims, reference is made to the Complaint. C. Nature of Action *7 Plaintiffs seek relief pursuant to Section 1983, which establishes a cause of action for “ ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)); see also Myers v. Wollowitz, No. 95-CV-0272 (TJM), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (finding that “[Section] 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights”). “Section 1983 itself creates no substantive rights, [but] ... only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Thus, to state a cognizable claim under Section 1983, a complaint must allege “(1) ‘that some person has deprived [the plaintiff] of a federal right,’ and (2) ‘that the person who has deprived [the plaintiff] of that right acted under color of state law.’ ” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)) (alteration omitted). The Court will construe the allegations in the Complaint with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”). III. ANALYSIS A. City of Albany Police Department The caption of the Complaint lists the City of Albany Police Department as a defendant. (Dkt. No. 1 at 1.) “[U]nder New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.” Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (dismissing § 1983 claim brought against the Lynbrook Police Department); see also La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department.”); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant.”). However, in deference to Plaintiffs’ pro se status, the Court will construe Plaintiffs’ claims as if they had been brought against the City of Albany, the real party in interest. See Solis v. Cty. of Westchester, No. 94-CV-5102, 1995 WL 14072, at *1 (S.D.N.Y. Jan. 10, 1995) (noting that the Westchester County Department of Corrections is not a legal entity and that the County of Westchester is the real party in interest). Pursuant to the standard for establishing municipality liability laid out in Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), in order to set forth a cognizable claim for municipal liability under Section 1983, a plaintiff must plead and prove that a deprivation of his constitutional rights “was caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. 658); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer.”) A municipality may be liable for deprivation of constitutional rights under Section 1983 for policies or customs resulting in inadequate training, supervision, or hiring when the failure to train, supervise, or hire amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). A plaintiff must also establish a causal connection – an affirmative link–between the policy and the deprivation of his constitutional rights. Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion). *8 Here, Plaintiffs have failed to identify or allege any facts plausibly showing the existence of a municipal policy or custom of the City of Albany authorizing, permitting, allowing, or tolerating “abuses in violation of the Constitution” including unreasonable search and seizure, false arrest, and excessive force incidents or any affirmative Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 124 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 link between such a policy and defendants’ alleged actions with regard to Plaintiffs. (See generally Dkt. No. 1.) Furthermore, Plaintiffs’ conclusory allegations that the City of Albany failed to train and supervise defendants, see id., without supporting factual allegations, fails to state a Monell claim against the City of Albany that is plausible on its face. See Tuttle, 471 U.S. at 824 n.8 (“The fact that a municipal ‘policy’ might lead to ‘police misconduct’ is hardly sufficient to satisfy Monell's requirement that the particular policy be the ‘moving force’ behind a constitutional violation.”). Based upon the foregoing, the Court recommends that Plaintiffs’ claims under 42 U.S.C. § 1983 against City of Albany Police Department be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Moreover, notwithstanding a very liberal interpretation of the Complaint, to the extent that Plaintiffs’ claims could be construed to be asserted against the City of Albany, as the real party in interest, it is recommended that the claims be dismissed without prejudice and with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. B. Officer Jan Mika “It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Thus, “a Section 1983 plaintiff must ‘allege a tangible connection between the acts of the defendant and the injuries suffered.’ ” Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)) (other citation omitted). Here, the Complaint states that Officer Jan Mika asked LaPietra questions on December 14, 2016, such as her “name, address, date of birth, etc.” and also told her, “Oh by the way parole officers were here earlier.” (Dkt. No. 1-1 at 10, 46.) However, Plaintiffs do not plead any facts sufficient to plausibly suggest that this defendant was personally involved in any conduct that violated either of Plaintiffs’ constitutional rights and, therefore, the Complaint fails to state a cognizable claim against this defendant. See Cipriani v. Buffardi, No. 06-CV-0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.”) (citation omitted). Accordingly, it is recommended that Plaintiffs’ claims against Officer Jan Mika be dismissed without prejudice and with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. C. Unknown Officers, Unknown Parole Officers, Unknown Plain Clothes Officer, Unknown Sgt. Separate from the substantive personal involvement requirement, discussed above, is a pleading requirement that, to adequately state a claim, a plaintiff's complaint must “differentiate which defendant[s] w[ere] involved in [what] unlawful conduct.” Ying Li v. City of New York, No. 15- CV-1599, 2017 WL 1208422, at *6 (E.D.N.Y. Mar. 31, 2017); see also Wright v. Orleans Cty., No. 14-CV-622, 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a § 1983 case that “[g]roup pleading is insufficient for purposes of Rule 8(a)(2), which requires a short and plain statement of the claim showing that the pleader is entitled to relief” (citation and quotation marks omitted)); Holmes v. Allstate Corp., No. 11-CV-1543, 2012 WL 627238, at *7, *22 (S.D.N.Y. Jan. 27, 2012) (“Rule 8(a) is violated where a plaintiff, by engaging in ‘group pleading,’ fails to give each defendant fair notice of the claims against it.”). *9 To satisfy the personal involvement requirement and the rule against group pleading, it is not necessary for a plaintiff to know the name of the defendant. Where a plaintiff does not know the name of a defendant, the plaintiff may identify the defendant in the pleading as John or Jane Doe. However, the pleading must still satisfy the rules governing personal involvement and group pleading as to the John or Jane Doe defendant. See Little v. Mun. Corp., 51 F. Supp. 3d 473, 493-94 (S.D.N.Y. 2014) (dismissing without prejudice excessive force claim asserted against “members of the ‘Special Search Team’ and ‘ESU Officers’ ” and noting that, “[t]o the extent that [plaintiff] does not know the names of the members of the Special Search Team or ESU Officers involved, he may name ‘John Doe’ defendants and include as much identifying information as he has knowledge of, for the purpose of filing an amended complaint, should [he] chose to do so”); Williams v. 120 PCT Undercover, No. 11- CV-4690, 2011 WL 13128209, at *1 (E.D.N.Y. Oct. 18, 2011) (dismissing complaint without prejudice where plaintiff's claims provided information about the alleged constitutional deprivations, but were brought against “the 120 Precinct and Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 125 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 District 9, a police precinct and district of the New York City Police Department”). Here, Plaintiffs simply list different groups of unidentified defendants in the caption of the Complaint and generally allege that on December 16, 2014, their Fourth Amendment constitutional rights were violated. The use of the terms “they,” or “the police” or “officer” as a name for alleged defendants is not adequate to state a claim against a “person” as required in § 1983 actions. See Williams, 2011 WL 13128209, at *1 (dismissing complaint with leave to amend where the “[p]laintiff alleges that unnamed undercover police officers used excessive force against him and caused him to sustain injuries on August 26, 2008 but does not identify any particular defendants.”). 9 Moreover, if the defendant is a supervisory official, a mere “linkage” to the unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). In other words, supervisory officials may not be held liable merely because they held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, supervisory officials may be considered “personally involved” if they (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Based on the foregoing, the Court finds Plaintiffs have failed to adequately plead that any individual defendant was personally involved in any alleged wrongdoing on December 14, 2016, and has contravened the rule against group pleading. Therefore, the Court recommends dismissing Plaintiffs’ claims against these “Unknown” defendants without prejudice and with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. 10 D. Officer Adam Iannacito *10 Tarver claims Iannacito used “excessive force on” him on December 14, 2016, in the Emergency Room by, inter alia, by “tackling” Tarver while he was restrained in shackles and prevented him from using the bathroom in violation of his constitutional rights, “which worsened [Tarver's] injury from a prior workplace assault, which was an AC separation.” (Dkt. No. 1-1 at 96-113, Dkt. No. 1-6 at 5-6, 20-21.) It appears that during the assault, Iannacito fractured a finger and thereafter “maliciously prosecuted [Tarver] with felony assault on an officer.” Id. To the extent Tarver asserts these claims under Section 1983, such claims are time-barred. Although the statute of limitations is an affirmative defense, where it is clear from the face of the complaint that a claim is barred by the applicable statute of limitations, the claim is subject to dismissal for failure to state a claim on initial review. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint can be dismissed on initial review based on a defense that appears on the face of the complaint). The applicable statute of limitations for a Section 1983 action is governed by “the law of the state in which the cause of action arose.” Wallace v. Kato, 549 U.S. 384, 387 (2007). In New York, the general statute of limitations for personal injury claims is three years. See N.Y. C.P.L.R. § 214(5). Here, Tarver executed the Complaint on February 6, 2020. (See Dkt. No. 7.) The alleged assault and deprivations by Iannacito at the Emergency Room occurred on December 16, 2016. Accordingly, Tarver's Section 1983 claims against Iannacito are barred by the applicable statute of limitations. To the extent these claims are asserted under New York law, claims for intentional torts, such as assault and battery, and intentional infliction of emotional distress, are governed by a one-year statute of limitations. N.Y. C.P.L.R. § 215(3); see also Ashjari v. Nynex Corp., 182 F.3d 898 (2d Cir. 1999) (“Under N.Y. C.P.L.R. § 215(3), claims of assault and battery ... must be brought within one year from the date the claim accrued.”); see also Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) (“It is well established under New York law that a claim of intentional infliction of emotional distress has a one–year statute of limitations.”). Accordingly, Tarver's claims against Iannacito, asserted under state law, are also barred by the applicable statute of limitations. Therefore, the Court recommends dismissing Tarver's claims against Officer Adam Iannacito without prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1). Because a district court typically should not Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 126 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 dismiss a claim as time-barred without providing a pro se plaintiff with “notice and opportunity to be heard” as to whether there might be a meritorious tolling argument or other reason why the complaint might be considered, if Tarver files an amended pleading with claims asserted against this defendant arising from the alleged December 14, 2016, incidents, he should address the issue of timeliness. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). E. Albany County C.F. The caption of the Complaint lists Albany County C.F. as a defendant. (Dkt. No. 1.) However, as set forth above, because the Albany County C.F. is an administrative arm of Albany County, without a legal identity separate and apart from the County, it lacks the capacity to be sued. See Part III.A., supra.; see also Lukes v. Nassau Cty. Jail, No. 12-CV-1139, 2012 WL 1965663, at *2 (E.D.N.Y. May 29, 2012) (dismissing claims against defendant Nassau County Jail because it “is an administrative arm of Nassau County, without a legal identity separate and apart from the County”); see Solis v. Cty. of Westchester, No. 94-CV-5102, 1995 WL 14072, at *1 (S.D.N.Y. Jan. 10,1995) (noting that the Westchester County Department of Corrections is not a legal entity and that the County of Westchester is the real party in interest); *11 Based upon the foregoing, the Court recommends that Plaintiffs’ claims under 42 U.S.C. § 1983 against Albany County C.F. be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Nevertheless, in deference to Plaintiffs’ pro se status, the Court will construe Plaintiffs’ claims as if they had been brought against Albany County, the real party in interest. See Shabazz v. Johnson City Police Dep't, No. 3:18-CV-0570 (MAD/DEP), 2018 WL 5660406, at * (June 21, 2018) (reviewing complaint against the real party in interest). As discussed above, municipal liability is limited under Section 1983 by Monell. See Part III.A., supra. Here, with one minor exception discussed below, Plaintiffs have failed to identify or allege any facts plausibly showing the existence of a municipal policy or custom of Albany County authorizing, permitting, allowing, or tolerating “abuses in violation of the Constitution” including deliberate medical indifference and excessive force incidents or any affirmative link between such a policy and any defendants’ alleged actions with regard to Tarver. See Dkt. No. 1-1 at 146-147. See Missel v. Cty. of Monroe, 351 F. App'x 543, 545 (2d Cir. 2009) (Monell claim requires “factual allegations that would support a plausible inference that the County[ ]’s ‘policies’ or ‘customs’ caused ... violations ... of rights.”). Furthermore, Plaintiffs’ conclusory allegations that Albany County failed to train and supervise defendants, see id., without supporting factual allegations, fails to state a Monell claim against Albany County that is plausible on its face. See Tuttle, 471 U.S. at 824 n.8. The Complaint states that “[t]he Albany County [C.F.] refused to allow [LaPietra] to wear a Native American necklace into the facility at a visitation stating that it is not a religion recognized by the United States government and that it had to be a religion like Christianity or the Muslim religion. This is a First Amendment rights violation. It is also inherently false that it is not a form of religion recognized by the United States government because the United States recognizes Natives through the American Indian Religious Freedom Act.” (Dkt. No. 1-1 at 190.) Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, see Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), LaPietra has sufficiently plead, albeit thinly, a cognizable claim regarding the aforementioned policy at Albany County C.F. Accordingly, based upon a very liberal interpretation of the Complaint, to the extent that Plaintiffs’ claims could be construed to be asserted against Albany County as the real party in interest, it is recommended that only LaPietra's First Amendment Monell claim survives initial review and requires a response and that all other claims be dismissed without prejudice and with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. The Court expresses no opinion as to whether LaPietra's First Amendment Monell claim can withstand a properly filed motion to dismiss or for summary judgment. F. Fourteenth Amendment Excessive Force and Failure-to-Protect Claims Against Burns and Remillard *12 Tarver contends Burns assaulted him and that Remillard failed to intervene to protect him from harm at Albany County C.F. in March 2018. See generally Dkt. No. 1-1. In the context of excessive force and failure-to-protect claims asserted by pretrial detainees, the Supreme Court distinguished between Eighth and Fourteenth Amendment claims in holding that a pretrial detainee alleging that an officer used excessive force against him in violation of Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 127 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 the Fourteenth Amendment need not demonstrate that such officer was subjectively aware that his use of force was unreasonable. See Kingsley v. Hendrickson, 576 U.S. 389 (2015); see also Francis v. City of New York, No. 17- CIV-1453, 2018 WL 4659478, at *4 (S.D.N.Y. Aug. 21, 2018) (applying Kingsley to failure-to-protect claim). 11 “[A] pretrial detainee must only show that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim.” Kingsley, 576 U.S. at 397. “[I]f the use of force is deliberate – i.e., purposeful and knowing – the pretrial detainee's claim may proceed.” Id. Courts consider a number of factors when determining objective reasonableness, including: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. Id. Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, see Sealed Plaintiff, 537 F.3d at 191, Tarver has sufficiently plead Fourteenth Amendment excessive force and failure-to-protect claims against Burns and Remillard. Therefore, the Court recommends that Tarver's Fourteenth Amendment excessive force and failure-to-protect claims against Burns and Remillard survive sua sponte review and require a response. The Court expresses no opinion as to whether these claims can withstand a properly filed motion to dismiss or for summary judgment. G. Assault and Battery Claims Against Burns Tarver also asserts assault and battery claims against Burns. To the extent that Tarver asserts these claims under Section 1983, it is duplicative of his excessive force claim and must be dismissed for failure to state a claim upon which relief may be granted. See Raymond v. Bunch, 136 F. Supp. 2d 71, 81 (N.D.N.Y. 2001). To the extent these claims are asserted under New York law, as discussed above, claims for intentional torts are governed by a one-year statute of limitations. N.Y. C.P.L.R. § 215(3); see also Ashjari v. Nynex Corp., 182 F.3d 898 (2d Cir. 1999) (“Under N.Y. C.P.L.R. § 215(3), claims of assault and battery ... must be brought within one year from the date the claim accrued.”). As discussed above, although the statute of limitations is an affirmative defense, where it is clear from the face of the complaint that a claim is barred by the applicable statute of limitations, the claim is subject to dismissal for failure to state a claim on initial review. See Pino, 49 F.3d at 53. Here, Tarver executed the Complaint on February 6, 2020. (See Dkt. No. 7.) The alleged assault by Burns occurred in March 2018. Accordingly, Tarver's assault and battery claims, asserted under state law, are barred by the applicable statute of limitations. Therefore, the Court recommends dismissing Tarver's assault and battery claims with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1). Because a district court typically should not dismiss a claim as time-barred without providing a pro se plaintiff with “notice and opportunity to be heard” as to whether there might be a meritorious tolling argument or other reason why the complaint might be considered, if Tarver files an amended pleading with a claim for assault and battery, he should address the issue of timeliness. See Abbas, 480 F.3d at 640. H. First Amendment Retaliation Claims Against Burns and Remillard *13 Tarver claims that Burns and Remillard acted with retaliatory intent when they assaulted him because he received legal mail and filed a state court lawsuit. (See generally Dkt. No. 1-1.) Retaliation claims find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). In a prison setting, prison officials may not take actions that would have a chilling effect upon an inmate's exercise of First Amendment rights. Id. at 381-83. However, as the Second Circuit has repeatedly cautioned, such claims are easily incanted and prone to abuse, as inmates often attribute adverse actions to retaliatory animus. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Courts must therefore approach retaliation claims with “skepticism and particular care.” Id. Accordingly, claims of retaliation must be supported by specific facts; conclusory statements are not sufficient. Flaherty v. Coughlin, 713 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 128 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds by Swierkiewicz, 534 U.S. at 506. To establish a prima facie First Amendment retaliation claim, the plaintiff must establish “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Gill, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492). The filing of lawsuits and grievances is protected conduct for purposes of First Amendment retaliation claims. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). Therefore, the allegations in the Complaint plausibly suggest that Tarver was engaged in protected conduct. Moreover, the alleged assault constituted an “adverse action” against Tarver that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. See Rivera v. Goord, 119 F. Supp. 2d 327, 339-340 (S.D.N.Y. 2000). An inmate bears the burden of showing “the protected conduct was a substantial or motivating factor” in the defendant's decision to take action against the plaintiff. Graham, 89 F.3d at 79. In evaluating whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, “a number of factors may be considered, including: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his motivation.” Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 872-73). “The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action.” Id. A showing of temporal proximity, without more, has generally been found insufficient to survive summary judgment. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (citations omitted). Here, Tarver has not adequately stated a claim for retaliation against Burns and Remillard because he has not alleged facts to suggest that they were aware Tarver received a letter from Prisoner Legal Services or that LaPietra filed a lawsuit in state court. Moreover, there is no allegation that Burns or Remillard were defendants in that lawsuit. As a result, Tarver has failed to allege plausibly that the lawsuit was causally connected to Burns’ or Remillard's allegedly adverse actions. See Wilson v. Kelly, No. 9:11-CV-00030 (MAD/RFT), 2012 WL 3704996, at *9 (N.D.N.Y. Aug. 27, 2012) (claim dismissed due to failure by plaintiff to allege plausibly that protected activity was causally connected to any alleged adverse action taken by the defendant where plaintiff failed to allege that the defendant was aware of the protected activity). *14 Therefore, the Court recommends that Tarver's retaliation claims against Burns and Remillard be dismissed with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1). I. ADA Claims 12 Tarver claims that, as a prisoner with a mental illness, he was entitled to modifications of his conditions of confinement in the SHU. (Dkt. No. 1-1 at 170.) Title II of the ADA provides, in pertinent part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA is applicable to inmates in state correctional facilities. See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 213 (1998). “Under Title II of the ADA ... prison officials may not discriminate against inmates on the basis of disability in administering work programs.” Harrington v. Vadlamudi, No. 9:13-CV-795 (BKS/RFT), 2015 WL 4460994, at *3 (N.D.N.Y. July 21, 2015) (citations omitted). To successfully plead a Title II claim, “[t]he inmate must establish that he (1) is a qualified individual with a disability; (2) is being excluded from participation in, or being denied benefits of some service, program or activity by reason of his or her disability; and (3) the entity providing the service is a public entity.” Allah v. Goord, 405 F.Supp.2d 265, 274 (S.D.N.Y. 2005). Here, the Complaint does not clearly indicate who Tarver is suing for violations of his rights under the ADA and what relief, if any, he seeks with respect to that claim. Assuming Tarver asserts this claim against individual officers, he has not indicated whether those officers are sued in their individual capacity, official capacity, or both. (See generally Dkt. No. 1.) To the extent that Tarver seeks monetary damages against any defendant, in his or her individual capacity, the Second Circuit has held Title II of the ADA does not provide for individual capacity suits for monetary damages. See Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). While individuals may be sued under the ADA in their Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 129 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 official capacities, a plaintiff must plead that the defendant “was motivated by discriminatory animus or ill-will based on the plaintiff's disability.” See Keitt v. New York City, 882 F. Supp. 2d 412, 455-57 (S.D.N.Y. 2011) (holding that under Garcia, claims for money damages against state officials in their official capacities under Title II of the ADA are barred by the Eleventh Amendment, absent a showing that a violation was motivated by discriminatory animus or ill will due to the disability) (citing Garcia, 280 F.3d at 112). Even assuming Tarver was disabled under the ADA, the Complaint fails to state a viable cause of action against any individual defendant because Tarver does not allege facts to plausibly suggest that any defendant discriminated against him. See Wenger v. New York State Dep't of Health, No. 5:14-CV-885 (DNH/TWD), 2015 WL 3397958, at *5 (N.D.N.Y. May 26, 2015) (dismissing the discrimination claim under ADA where the complaint “provide[d] few specifics regarding [the plaintiff's] care, the services of which he was allegedly deprived, or programs in which he was allegedly not allowed to participate, or any reasons therefor articulated by [the defendants”). *15 Although “Title II [...] suits for prospective injunctive relief may ... proceed against individual officers in their official capacity,” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), an inmate's request for injunctive relief becomes moot when the inmate is released from custody. See Roque v. Armstrong, 392 F. Supp. 2d 382, 386-87 (D. Conn. 2005) (finding that the plaintiff's request for injunctive relief under the ADA for the provision of medical care became moot when he was discharged from prison) (citations omitted); see also McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) (noting that an inmate's claim for prospective injunctive relief regarding conditions of confinement is rendered moot upon his release from confinement). In April 2020, Tarver notified the Court that he was no longer incarcerated. (See Dkt. No. 15.) Accordingly, the Court recommends dismissing Tarver's ADA claims for monetary damages and injunctive relief for failure to state a claim upon which relief may be granted. J. Remaining Claims The remaining constitutional and state law claims are asserted by Tarver against “Unknown Corrections Officers,” and “Unknown Medical and Dental Workers.” (See Dkt. No. 1 at 1; Dkt. No. 1-1 at 1.) The Complaint fails to identify any corrections officers or medical personnel involved in Tarver's medical treatment, dental treatment, the decision to confine Tarver to keeplock, decisions related to Tarver's mail or property, decisions related to grievances or visitors at the facility, or any of other remaining alleged constitutional violations. As previously discussed, the use of the terms, “they,” “corrections officers,” “medical and dental workers,” or “all facility employees” as a name for alleged defendants is not adequate to state a claim against a “person” as required in Section 1983 actions. See Part.III.C., supra.; see also Ferguson, 1991 WL 115759, at *1 (“The allegations plaintiff makes against the Otisville Correctional Facility Medical Staff are not sufficient to state a cause of action.”). Moreover, the Court notes that while the Complaint includes a plethora of constitutional claims arising from Tarver's confinement at Albany County C.F., the pleading lacks any specificity related to those claims including dates, times, and locations of the alleged violations. Because the Complaint fail to identify any individuals personally involved in the remaining alleged constitutional violations and state law claims, the Court recommends dismissing the remaining claims without prejudice and with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. See Martin v. UConn Health Care, No. 3:99-CV-2158, 2000 WL 303262, at *1 (D. Conn. Feb. 9, 2000) (giving the plaintiff leave to file an amended complaint “provided he can identify at least one physician or other health care provider who has been deliberately indifferent to his medical needs”) (citing Soto v. Brooklyn Correctional Facility, 80 F.3d 34 (2d Cir. 1996) (permitting plaintiff to file amended complaint where inmate named only correctional facility and was not aware of the requirement that he name individuals)). 13 IV. MOTIONS TO APPOINT COUNSEL *16 It is well-settled that there is no right to appointment of counsel in civil matters. Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Title 28 of United States Code Section 1915 specifically provides that a court may request an attorney to represent any person “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Appointment of counsel must be done carefully in order to preserve the “precious commodity” of volunteer lawyers for those litigants who truly need a lawyer's assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73 (2d Cir. 1989). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 130 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 In Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994), the Second Circuit reiterated the factors that a court must consider in ruling upon such a motion. In deciding whether to appoint counsel, the court 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 a number of other factors in making its determination. See id. at 1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)); Sawma v. Perales, 895 F.2d 91, 95 (2d Cir. 1990). Among these are [t]he 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 ... why appointment of counsel would be more likely to lead to a just determination. Hodge, 802 F.2d at 61. None of these factors are controlling, however, and each case should be decided on its own facts. Id. Here, the main facts upon which this Court may base its decision as to whether this lawsuit is of substance are those portions of Plaintiffs’ Complaint wherein they state the facts surrounding their claims. Where a plaintiff does not provide a Court with evidence, as opposed to mere allegations, relating to his or her claims, such party does not meet the first requirement imposed by the Second Circuit relative to applications seeking appointment of pro bono counsel. See Harmon v. Runyon, No. 96-CV-6080, 1997 WL 118379 (S.D.N.Y. Mar. 17, 1997). Furthermore, even if the Court were to assume that this case may be of substance, these claims do not present overly complex issues. In addition, the record currently before the Court indicates that Plaintiffs have an ability to investigate pertinent facts and present the case. While it is possible, should this case proceed to a trial, that there will be conflicting evidence implicating the need for cross-examination, as is the case in many actions brought by pro se litigants, “this factor alone is not determinative of a motion for appointment of counsel.” Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995). Further, if this case proceeds to trial, it is highly probable that this Court will appoint trial counsel at the final pretrial conference. This Court is not aware of any special reason why appointment of counsel at this time would be more likely to lead to a just determination of this litigation. For all of these reasons, the Court finds that appointment of counsel is unwarranted and Plaintiffs’ motions are denied without prejudice. (Dkt. Nos. 6, 21.) Plaintiffs may file another motion for appointment of counsel in the event that they can demonstrate that, in light of specific changed circumstances, consideration of the above factors warrants granting the application. *17 WHEREFORE, it is hereby ORDERED that Tarver's IFP Application (Dkt. No. 20) is GRANTED; 14 and it is further RECOMMENDED that Plaintiffs’ claims against City of Albany Police Department and Albany County Corrections Facility be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted; and it is further RECOMMENDED that the Clerk be directed to revise the docket sheet to ADD Albany County as a defendant in this action; and it is further RECOMMENDED that Tarver's Fourteenth Amendment excessive force and failure-to-protect claims against C.O. Burns and Sgt. Remillard SURVIVE initial review and require a response; and it is further RECOMMENDED that LaPietra's First Amendment Monell claim against Albany County SURVIVES initial review and requires a response; and it is further RECOMMENDED that the remaining claims be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 15 pursuant to 28 U.S.C. § 1915(e)(2) (B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted; and it is further ORDERED that all pleadings, motions and other documents relating to this action must bear the case number assigned to this action and be filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 131 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 13261-7367. Any paper sent by a party to the Court or the Clerk must be accompanied by a certificate showing that a true and correct copy of same was served on all opposing parties or their counsel. Any document received by the Clerk or the Court which does not include a proper certificate of service will be stricken from the docket. Plaintiffs must comply with any requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiffs are also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his or her address; their failure to do so may result in the dismissal of the action; and it is further *18 ORDERED that Plaintiffs’ motions for counsel (Dkt. Nos. 6, 21) are DENIED WITHOUT PREJUDICE; and it is further ORDERED that the Clerk of the Court shall serve a copy of this Report-Recommendation and Order on Plaintiffs, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. 16 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 87 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2020 WL 5891888 Footnotes 1 Tarver was incarcerated at Mid-State Correctional Facility at the time the action was commenced. See http:// nysdoccslookup.doccs.ny.gov (DIN 18A1582) (last visited Sept. 27, 2020). Therefore, 28 U.S.C. § 1915A is applicable. See Rogers v. New York City Police Dep't, No. 12 CV 3042, 2012 WL 4863161, at *1 n.3 (E.D.N.Y. Oct. 12, 2012) (a plaintiff who has been released from incarceration is still considered a prisoner under § 1915A if he was imprisoned at the time the action was commenced); see also Brown v. Jacobson, No. 98 Civ. 0565, 1999 WL 1125122, at *5 (S.D.N.Y. Dec. 8, 1999) (prisoner's complaint subject to heightened scrutiny under the Prison Litigation Reform Act of 1999 even after release from custody because it concerns prison officials’ misconduct). 2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 3 The Complaint includes exhibits. (See Dkt. No. 1-1 through Dkt. No. 1-6.) To the extent that the exhibits are relevant to the incidents described in the Complaint, the Court will consider the Complaint as well as any documents attached. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference). 4 LaPietra is “part of an independent living program for a health-related reason.” (Dkt. No. 1-1 at 5.) Her apartment is on the second floor. 5 According to Tarver, he was “coming down the stairs, and had the door to stairwell open a crack, and he and the officer saw each other through the glass cutout window in the door to the house/vestibule. The officer pushed in on the door to the house and entered into the vestibule while [Tarver] was still in the stairwell. At Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 132 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 some point, he asked [Tarver] what he was doing there and he said he lived there; He cuffed him, sat him down on the outside stoop, asked what was in his pocket, and he told them the keys and his wallet and they took the keys and wallet out of his pocket and immediately went in the other 2 doors without even checking on who he was, that he had a parole condition, or where he lived, which could have been easily ascertained.” 6 LaPietra continues: “If there were parole officers there they were not there when I got there and they were not the ones who originally went into the apartment or conducted a search. They city officer who entered did not have a warrant to enter, but they had a witness [Tarver's] counsel later told me. If there was a witness I saw no signs of them.” (Dkt. No. 1-1 at 9.) “It would have been more than reasonable to doubt anything [Tarver] said and because the officer had access to [Tarver's] wallet and had him handcuffed it would have been reasonable enough to ascertain whose residence it was, and that [Tarver] had a parole condition, to contact his parole officer, or to obtain a warrant. None of this was done.” Id. at 9-10. 7 The complaint further states that “They also called and invited parole officers to the scene to illegally search the residence as well. Someone is responsible for the arrival of officers in plain clothes and parole officers who also illegally searched the residence.” (Dkt. No. 1-1 at 11.) 8 While not entirely clear, it appears Plaintiffs filed a “late notice of claim in regard to the Albany Police and Albany County Correctional Facility violating [their] civil rights,” as alleged in Complaint but State Court Judge Hon. Kimberly A. O'Conner “denied” that request. (Dkt. No. 1-6 at 1.) The Court notes, however, “New York's General Municipal Law has only vested the power to grant notice of claim extensions to the New York State supreme courts and county courts.” Farquharson v. Lafayette, No. 19-cv-3446 (NSR), 2020 WL 1699985, at *13 (S.D.N.Y. Apr. 7, 2020) (citing N.Y. Gen. Mun. Law § 50-e(7)). Thus, “[f]ederal courts are not authorized to grant such extensions.” Id. (citing Davis v. City of New York, No. 12 Civ. 3297 (PGG), 2018 WL 10070540, at *13 (S.D.N.Y. Mar. 30, 2018) (“New York has given the power to extend deadlines for serving [a] notice of claim to state supreme courts and county courts, and federal courts are not authorized to grant such extensions.”); Dayton v. City of Middletown, 786 F. Supp. 2d 809, 824-25 (S.D.N.Y. 2011) (“[T]his Court lacks jurisdiction, pursuant to § 50-e(7), to deem Plaintiffs’ 5/30/09 Amended Notice of Claim for their state law claims against Orange County timely filed, or to grant an extension of time to file a late notice of claim.”). The Court further notes that to the extent Plaintiffs seek to collaterally attack a state court's judgment rendered before filing this action in federal court, such claims may be barred under Rooker-Feldman doctrine, which divests the federal court of jurisdiction to consider actions that seek to overturn state court judgments. See generally District of Colombia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). This doctrine also bars the federal court from considering claims that are “inextricably intertwined” with a prior state court determination. Fernandez v. Turetsky, No. 12-CV-4092, 2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). 9 See Williams, 2011 WL 13128209, at *1 (giving the plaintiff leave to file an amended complaint to name the individuals responsible for the alleged deprivation of his rights and noting if “if plaintiff cannot identify the individual defendant(s) within the time allowed in this order or because they were undercover, he may designate the individual as John (or Jane) Doe #1, and so on.”). 10 Inasmuch as the Court is recommending dismissal of Plaintiffs’ Fourth Amendment claims without prejudice, the Court does not address the merits, timeliness, and/or whether any such claims are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 11 It is unclear whether Tarver was a pretrial detainee or was serving a sentence at the time of the events complained of in the complaint. For purposes of this initial review, the Court assumes that Tarver was a pretrial detainee when his claims arose. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 133 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 12 Tarver does not specify what portions of the ADA are triggered. Reading the complaint liberally, it appears that he brings this action under Title II. 13 Rule 10(a) of the Federal Rules of Civil Procedure provides that, “the title of the complaint must name all the parties.” Fed. R. Civ. P. 10(a). A party not named in the caption of the complaint is not a party to the action. Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”). “If people are not also named in the caption of the [ ] complaint, they will not be defendants in the case.” Whitley v. Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007); see also Robles v. Armstrong, No. 3:03- CV-1634, 2006 WL 752857, at *1 n.1 (D. Conn. Mar. 17, 2006) (“The plaintiff refers to John Doe/Jane Doe of the Correctional Managed Health Care Program and John Doe/Jane Doe Members of the Revitalization Committee in the body of the amended complaint. Rule 10(a) of the Federal Rules of Civil Procedure requires that all defendants be listed in the caption of the complaint. Because the John and Jane Does are not listed in the caption of the amended complaint, they are not defendants and the court does not consider claims against them.”). In this instance, while LaPietra claims that she notified certain individuals about “the issues” at Albany County C.F., including Newman, Lyons, and Trimble, see Dkt. No. 1-1 at 136, 139; Dkt. No. 1-6 at 22, the aforementioned individuals are not identified as defendants in the caption of the complaint or the list of parties. Thus, the Court will not construe the complaint to include any claims or causes of action against these individuals. For the same reason, the Court will not construe the complaint to include any claims or cause of actions against other private individuals referenced in the body of the complaint, including attorneys and grocery store employees, as they are not identified as defendants in the caption of the complaint or list of parties. 14 Tarver should note that, although the Court has granted his IFP Application, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees. 15 If the District Court approves this Report-Recommendation, and if Plaintiffs choose to file an amended complaint, any amended complaint must comply with Rules 8 and 10 of the Federal Rules. Any such amended complaint must be signed by both Plaintiffs and clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. See Bass, 790 F.2d at 263. Any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”). 16 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. 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. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 134 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 7021589 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Andrea LAPIETRA, Individually and as Power of Attorney, and Deashon Tarver, Plaintiffs, v. CITY OF ALBANY POLICE DEPARTMENT, et al., Defendants. 9:19-CV-1527 | Signed 11/30/2020 Attorneys and Law Firms Andrea LaPietra, Albany, NY, pro se. Deashon Tarver, Albany, NY, pro se. DECISION and ORDER THOMAS J. McAVOY, Senior United States District Judge I. INTRODUCTION *1 This pro se action was referred to the Hon. Thérèse W. Dancks, United States Magistrate Judge, to review Tarver's in forma pauperis application 1 and for an initial review of the Complaint pursuant to 28 U.S.C. § 1915(e). Judge Dancks issued a Report-Recommendation and Order on October 5, 2020. Dkt. No. 24. On October 16, 2020, plaintiffs requested an extension of time to file objections, citing a delay in receipt of the Report-Recommendation and Order, limited resources due to the coronavirus pandemic, the restriction on library access because of the coronavirus pandemic, a death in the family of one of the plaintiffs, and because the plaintiffs were intending to seek the help of an attorney regarding their objections. This application was granted by Judge Dancks on October 19, 2020, and plaintiffs were given until November 19 2020 to file their objections. On November 19, 2020, plaintiffs filed a letter with the Court requesting an additional 2-3 week extension to file objections, citing that they were intending to consult with a specified attorney and because they intended to obtain information from Tarver's doctor that they wanted to incorporate in their objections. Plaintiffs’ request for an additional extension of time to file objections is denied. They have failed to demonstrate good cause for an additional extension of time. Further, Plaintiffs will suffer no prejudice by the denial of this request because Judge Dancks recommends that certain claims be allowed to proceed, that others be dismissed without prejudice and with leave to replead, and that plaintiffs’ motion for appointment of counsel (which may now be moot) be denied with leave to renew. While Judge Dancks recommends that claims against the Albany Police Department and the Albany County Corrections Facility be dismissed with prejudice, she also recommends that these claims be allowed to proceed against the real parties in interest, the City of Albany and Albany County, respectively. In this regard, Judge Dancks recommends that the claims against the Albany Police Department be allowed to be repled against the City of Albany, and that the County of Albany be added to the docket as the real party in interest in the claims against the Albany County Corrections Facility. Because plaintiffs expressed an intention to file objections but waited until the last day to request an extension, the Court will deem them to have filed a general objection and will review Judge Dancks's recommendations accordingly. II. STANDARD OF REVIEW When objections to a magistrate judge's report and recommendation are lodged, the district court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1). After reviewing the report and recommendation, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b). III. DISCUSSION *2 After conducting a de novo review of the issues addressed by Judge Dancks in her Report-Recommendation and Order, the Court adopts the recommendations for the reasons stated in Judge Dancks's thorough report. IV. CONCLUSION For the reasons discussed above, plaintiffs’ letter motion for an extension of time to file objections to the Report- Recommendation and Order (Dkt. No. 31) is DENIED. Further, the Court ACCEPTS and ADOPTS Judge Dancks's recommendations in the Report-Recommendation and Order (Dkt No. 24). Therefore, it is hereby Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 135 of 240
LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 ORDERED that plaintiffs’ claims against City of Albany Police Department and Albany County Corrections Facility are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted; and it is further ORDERED that the Clerk is directed to revise the docket sheet to ADD Albany County as a defendant in this action; and it is further ORDERED that Tarver's Fourteenth Amendment excessive force and failure-to-protect claims against C.O. Burns and Sgt. Remillard SURVIVE initial review and require a response; and it is further ORDERED that LaPietra's First Amendment Monell claim against Albany County SURVIVES initial review and requires a response; and it is further ORDERED that the remaining claims are DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. If plaintiffs choose to file an amended complaint, any amended complaint must comply with Rules 8 and 10 of the Federal Rules. Any such amended complaint must be signed by both plaintiffs and clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. If plaintiffs intend to file an amended complaint they must do so within thirty (30) days of the date of this Decision and Order. If they fail to timely do so, the case will proceed on the remaining claims in the Complaint. The Clerk can terminate all defendants EXCEPT Albany County, C.O. Burns, and Sgt. Remillard. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2020 WL 7021589 Footnotes 1 The Court previously granted LaPietra's motion to proceed in forma pauperis and dismissed any claims that LaPietra asserted on behalf of Tarver. (Dkt. No. 4 at 4-5.) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 136 of 240
Miller v. Stallworth, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 3974730 Only the Westlaw citation is currently available. United States District Court, D. Connecticut. Stephen MILLER, Plaintiff, v. Charles STALLWORTH, et al., Defendants. No. 3:17-cv-01711 (JAM) | Signed 08/20/2018 Attorneys and Law Firms Stephen Miller, Bridgeport, CT, pro se. James A. Mahar, Ryan Ryan DeLuca LLP, Bridgeport, CT, for Defendants. ORDER GRANTING MOTION TO DISMISS Jeffrey Alker Meyer, United States District Judge *1 Plaintiff Stephen Miller brings this action against defendants Charles Stallworth and East End Baptist Tabernacle for what the Court construes to be claims for false arrest and malicious prosecution in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983. Defendants have moved to dismiss this action. The Court will grant defendants' motion to dismiss for three reasons. First, plaintiff has not alleged facts that give rise to plausible grounds for relief. Second, because the complaint alleges that plaintiff pleaded no contest to charges stemming from his arrest, the Court may not grant money damages under the rule of Heck v. Humphrey, 512 U.S. 477 (1994). Third, because plaintiff has not alleged a favorable termination of the charge or charges stemming from his arrests, he cannot sustain a claim for false arrest or malicious prosecution. BACKGROUND Plaintiff has filed a complaint titled “Damages for False Charges.” Doc. #1 at 1. The complaint names two defendants: Rev. Charles Stallworth and the East End Baptist Tabernacle Church. It states that plaintiff “brings this action seeking damages following a no contest plea due to the payment by defendants to off duty Bridgeport police officer Roger Reid hired to arrest the plaintiff if he came to church services” at the East End Baptist Tabernacle Church. Ibid. (¶ 1). The complaint goes on to describe how plaintiff went to the church on June 21, 2015, after having attended a service at the church one week before without incident. Plaintiff appeared at the church wearing a T-shirt stating: “5 COPS MURDERED ERIC GARNER,” which “induced friendly comments by many African Americans.” Ibid. (¶ 2). Officer Reid (who is not named as a defendant) was standing in front of the church when plaintiff arrived. Plaintiff was in the lobby of the church speaking with two church members when Officer Reid approached him with a piece of paper and asked to speak to him outside. Officer Reid then spoke to plaintiff about allegedly harassing emails, and plaintiff denied sending emails. Officer Reid called for back-up and then arrested plaintiff, and plaintiff's car was towed away. About six weeks later, Officer Reid arrested plaintiff again on August 2, 2015, at a Stop and Shop supermarket in Bridgeport. According to plaintiff, “[t]he surveillance film in the store was altered in spite of a court order to preserve the film proving these charges false too.” Id. at 2 (¶ 7). In both cases witnesses lied for the police story. These lies were voluntary which concerned me for the integrity of a jury regardless of the evidence. With the court's disregard of the speedy trial motions and the destruction of the exculpatory film I decided a trial was too risky; pleading no contest. Id. at 2 (¶ 8). The complaint goes on to describe plaintiff's “PURPOSE TO ATTEND THIS AFRICAN AMERICAN CHURCH” and his “concern for the endless injustice of African Americans being murdered by police officials without any charges filed by district attorneys or United State's attorneys regardless of glaring proof was being protested in an absurd, ineffective manner.” Id. at 3. “I don't know these churches or their pastors so I approached Bishop John Diamond to explain a better strategy,” and “Rev. Diamond referred me to defendant Rev. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 137 of 240
Miller v. Stallworth, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Stallworth explaining Stallworth was a political leader.” Ibid. The complaint concludes with the following two paragraphs: *2 Recently the Kaepernick protest was reversed by the media never using the accurate work “murder” replaced by “brutality”. Each black victim is dead none were alive from brutality but black leaders ignore this glaring fact. Never using the word “murder” by anybody proves the power of the media putting the entire country in a deep trance. Being shoved or hit brutally results rarely in death. Ibid. The complaint seeks $200,000 and attorney's fees. Ibid. On January 29, 2018, plaintiff moved to file an amended complaint to seek “punitive damages of $153,000,000 for the violation of the Plaintiff's civil liberties, harassment, emotion, and financial distress.” Doc. #16 at 1. Plaintiff alleges that “[o]nly the defendant can explain the arrest for the court,” and that he was the victim of “a deliberate trap to arrest the plaintiff” and that the “proceedings were paid for and ordered by the defendant herein.” Id. at 2. “It is not conclusory to conclude by deductions the events that the plan was ready before the plaintiff arrived.” Ibid. The plaintiff adds that “[t]he charges for my arrest were never dismissed.” Id. at 4 (¶ 6). The balance of plaintiff's amended complaint alleges facts similar to the initial complaint concerning his arrest and includes many allegations about plaintiff's concern for the mistreatment of African Americans. It concludes stating that “[t]he defendant is a leader of many pastors who bleed their congregations. He feared the plaintiff would expose a rich insidious scam conspiracy by all pastors encouraging ‘no justice no peace’ by Al Sharpton, a known swindler Democrat operator?” Id. at 8. Defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). DISCUSSION The background principles governing a Rule 12(b)(6) motion to dismiss are well established. The Court must accept as true all factual matters alleged in a complaint, although a complaint may not survive unless the facts it recites are enough to state plausible grounds for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014). This “plausibility” requirement is “not akin to a probability requirement,” but it “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Because a court should focus on what facts a complaint alleges, a court is “not bound to accept as true a legal conclusion couched as a factual allegation” or “to accept as true allegations that are wholly conclusory.” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014). In short, the Court's role is to determine if the complaint— apart from any of its conclusory allegations—alleges enough facts to state a plausible claim for relief. The Court liberally construes the pleadings of a pro se party in a non-technical manner to raise the strongest arguments that they suggest. See, e.g., McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 157 (2d Cir. 2017) (per curiam ). Still, a pro se complaint may not survive dismissal if its factual allegations do not meet the basic plausibility standard. See, e.g., Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015). *3 Although the complaint does not cite any particular law that defendants violated, I construe the complaint to allege claims for false arrest and malicious prosecution in violation of the Fourth Amendment. See Spak v. Phillips, 857 F.3d 458, 461 n.1 (2d Cir. 2017) (describing elements of malicious prosecution claim); Edelman v. Page, 2015 WL 1395893, at *11 (D. Conn. 2015) (describing elements of false arrest claim), aff'd sub nom, Edleman v. Schultz, 683 F. App'x. 60 (2d Cir. 2017). 1 Lack of Factual Allegations Giving Rise to Plausible Grounds for Relief The complaint does not allege facts that give rise to plausible grounds for relief. The factual allegations of a complaint must be “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, “[a] court may dismiss a claim as ‘factually frivolous’ if the sufficiently well-pleaded facts are ‘clearly baseless’—that is, if they are ‘fanciful,’ ‘fantastic,’ or ‘delusional.’ ” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) ). Other than a bare allegation that defendants “paid” Officer Reid to arrest plaintiff (Doc. #1 at 1), the complaint alleges no other actions by any of the defendants. Plaintiff asks the Court to make “deductions” (Doc. #16 at 2) from the circumstances of Officer Reid's presence that defendants must have paid him off or improperly influenced him to arrest plaintiff. But such deductions are no more than speculation that does not rise to the level of stating plausible grounds for relief. See, e.g., Gallop, 642 F.3d at 368–69 (affirming dismissal of complaint Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 138 of 240
Miller v. Stallworth, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 alleging that explosion at the Pentagon on September 11, 2001, was not the result of a hijacked airplane crashing into the Pentagon but was the result of explosives planted within the Pentagon at the conspiratorial behest of high-ranking government officials); see also Betts v. Shearman, 751 F.3d 78, 84–86 (2d Cir. 2014) (affirming dismissal of conclusory claim that a private actor acted under color of state law to have police arrest the plaintiff). The Rule of Heck v. Humphrey *4 Even assuming that plaintiff alleged plausible grounds for relief against the church or its pastor, plaintiff alleges that he pleaded no contest to these charges and that the charges for his arrest were never dismissed. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that in order for a plaintiff “to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Id. at 486–87. If the Court were to rule in plaintiff's favor on his claims of false arrest or malicious prosecution, this would surely impugn the validity of the charges to which he himself alleges he has entered a plea of no contest. Accordingly, plaintiff's claims for false arrest and malicious prosecution are barred by the rule of Heck v. Humphrey. 2 Lack of Favorable Termination Lastly, defendants argue that the lack of a favorable termination of the charges precludes plaintiff's complaint. As to plaintiff's malicious prosecution claim, it is clear that the lack of a favorable termination of charges precludes the claim. See Spak, 857 F.3d at 461 n.1. As to plaintiff's false arrest claim, it is a closer issue. In view that an arrest may never ripen into formal criminal charges, there is good reason to doubt why a claim for false arrest—as distinct from a claim for malicious prosecution—should invariably be subject to a requirement that a plaintiff prove a favorable termination of an ensuing prosecution. See Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 918 (2017) (noting that “[t]he Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause,” and “[t]hat can happen when the police hold someone without any reason before the formal onset of a criminal proceeding”) (emphasis added); Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996) (false arrest claim under New York law does not require proof of favorable termination; “a person who asserts that he has been arrested without a warrant and without probable cause—a claim that does not seek to cast doubt upon judicial proceedings and is ripe upon arrest—need not insist that a prosecution be brought against him in order that he be allowed to pursue a claim for false arrest”); see also Ruttkamp v. De Los Reyes, 2012 WL 3596064, at *12 & n.21 (D. Conn. 2012) (noting that a favorable termination requirement for a false arrest claim would not logically apply if the only reason that subsequent proceedings do not terminate in an arrestee's favor is because of the police's postarrest discovery of new evidence not known to police at the time of a baseless arrest). Still, notwithstanding such concerns, the Second Circuit has ruled that a false arrest claim under Connecticut law requires proof of a favorable termination. See Miles v. City of Hartford, 445 F. App'x. 379, 383 (2d Cir. 2011) (citing Roesch v. Otarola, 980 F.2d 850, 952 (2d Cir. 1992) ). Moreover, the Connecticut Supreme Court has also observed that “[t]he same reasoning which makes conviction a defense in an action for malicious prosecution would apply as strongly to such a cause of action for false imprisonment as is here asserted, and if conviction is a defense in one, so it should be in the other.” Clewley v. Brown, Thomson, Inc., 120 Conn. 440, 444 (1935); see also Jordan v. Town of Windsor, 2018 WL 1211202, at *6 (D. Conn. 2018) (same). I am required to follow this precedent and to conclude for purposes of a constitutional claim of false arrest that arises in Connecticut that favorable termination of a prosecution is a required element of the cause of action for false arrest. Although plaintiff vacillates between whether he pleaded no contest to the charges from his arrest of June 21, 2015, or whether those charges remain pending (see supra footnote 2), he has not alleged that any charges from his arrest of June 21, 2015, have been favorably terminated. CONCLUSION *5 For the reasons set forth above, defendants' motion to dismiss (Doc. #17) is GRANTED with prejudice. Plaintiff's motion to amend his complaint (Doc. #16) is DENIED on the ground that any amendment would be futile. See Betts, 751 F.3d at 86 (affirming denial of leave to replead where plaintiff “identified no facts that, if alleged, would bolster his allegations that the officers coached [defendant] to make false allegations”). Plaintiff's remaining pending motions (Docs. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 139 of 240
Miller v. Stallworth, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 #18, #19, #20, #28, #29, #30, #31, #32, #33, #34, #35, #36 and #37) are DENIED as moot. The Clerk of Court shall close this case. It is so ordered. All Citations Not Reported in Fed. Supp., 2018 WL 3974730 Footnotes 1 To the extent that the complaint might be construed to allege any state law claims, the Court would have no federal diversity jurisdiction, because the parties are all from the State of Connecticut. See 28 U.S.C. § 1332. The Court otherwise declines to exercise supplemental jurisdiction over any state law claims. 2 According to the Connecticut Judicial Branch, plaintiff was arrested on August 2, 2015, and subsequently found guilty following pleas of nolo contendere on charges of breach of peace and interference with an officer on September 19, 2017. See State of Connecticut Judicial Branch, Criminal/Motor Vehicle Case Detail (Stephen Miller, Birth Year 1942) http://www.jud2.ct.gov/crdockets/CaseDetailDisp.aspx? source=Pending&Key=f25f44eb-e001-4b54-aa6a-8127f3899fc0 (last accessed August 20, 2018). There is no record on the Judicial Branch website of plaintiff's alleged arrest on June 21, 2015. Plaintiff has filed many motions on this docket, including one in which he now asserts that his “no contest” plea was solely for the charges stemming from his arrest at Stop & Shop on August 2, 2015, and not for “the church case.” Doc. #19 at 2 (¶ 2); see also Doc. #33 at 1 (stating as to the “church case” that “[t]here is no pending trial and the judge refused to dismiss the charges”). Even assuming this to be so, it would not affect the Court's alternative determinations that plaintiff has not alleged any facts in either his initial or proposed amended complaint that would plausibly support a claim against either defendant, much less shown that the charges from his arrest at the church have been terminated in his favor. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 140 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 819281 United States District Court, N.D. New York. Kevin MURPHY, Plaintiff, v. ONONDAGA COUNTY et al., Defendants. 5:18-cv-1218 (GLS/CFH) | Signed 03/18/2022 Attorneys and Law Firms FOR THE PLAINTIFF:JEFFREY R. PARRY, ESQ., Office of Jeffrey R. Parry, 7030 East Genesee Street, Fayetteville, NY 13066, JARROD W. SMITH, ESQ., Office of Jarrod W. Smith, 11 South Main Street, P.O. Box 173, Jordan, NY 13080. FOR THE DEFENDANTS: JOHN E. HEISLER, JR., ESQ., Onondaga County, The Onondaga Sheriff's Department, Carl Hummel, William Fitzpatrick, Stefano Cambareri, Melanie S. Carden & Lindsey M. Luczka, Onondaga County Department of Law, John H. Mulroy Civic Center, 421 Montgomery Street, 10th Floor, Syracuse, NY 13202, ROBERT J. SMITH, ESQ., ELIZABETH A. HOFFMAN, ESQ., Eugene Conway, Joseph Ciciarelli, Michael Dickinson, Jammie Blumer, Jonathan Anderson, Joseph Peluso, Roy Gratien & Jason Cassalia, Costello, Cooney & Fearon, PLLC, 211 W. Jefferson Street, Syracuse, NY 13202, KATHERINE STEWART, ESQ., 500 Plum Street, Suite 300, Syracuse, NY 13204, JOHN L. MURAD, JR., ESQ., ANNELIESE ALIASSO, ESQ., Bryan K. Edwards & Westcott Events, LLC, Hancock Estabrook, LLP, 1800 AXA Tower I, 100 Madison Street, Syracuse, NY 13202, CHRISTINA M. VERONE JULIANO, ESQ., Goldberg, Segalla Law Firm, 5786 Widewaters Parkway, Syracuse, NY 13214. MEMORANDUM-DECISION AND ORDER Gary L. Sharpe, Senior District Judge I. Introduction *1 Plaintiff Kevin Murphy commenced this civil rights action against defendants Onondaga County, The Onondaga County Sheriff's Department, Eugene Conway, Joseph Ciciarelli, Michael Dickinson, 1 Jammie Blumer, Jonathan Anderson, Joseph Peluso, Roy Gratien, Jason Cassalia, Carl Hummel, William Fitzpatrick, Stefano Cambareri, Melanie S. Carden, Lindsey M. Luczka, Bryan K. Edwards, and Westcott Events, LLC, pursuant to 42 U.S.C. §§ 1983 and 1985, 18 U.S.C. § 1964 (Civil Racketeer Influenced and Corrupt Organizations (RICO) Act), and New York State law, with the individual defendants all being sued in their individual and official capacities. (Am. Compl., Dkt. No. 60.) 2 Pending before the court are motions for judgment on the pleadings filed by Conway (Dkt. No. 88), Blumer, (Dkt. No. 90), Peluso, (Dkt. No. 92), Gratien, (Dkt. No. 94), Anderson, (Dkt. No. 96), Cassalia, (Dkt. No. 98), Ciciarelli, (Dkt. No. 100), and Dickinson, (Dkt. No. 102) (hereinafter, collectively referred to as the “Sheriff Defendants”), a motion to amend the amended complaint filed by Murphy, (Dkt. No. 123), a motion to dismiss the amended complaint filed by Edwards and Westcott, (Dkt. No. 143), a motion to amend the RICO statement filed by Murphy, (Dkt. No. 157), a motion to construe their prior motion to dismiss as against any second amended complaint and/or to deny the second amended complaint filed by Edwards and Westcott, (Dkt. No. 144), a motion requesting guidance in responding to Murphy's amended RICO statement filed by the Sheriff Defendants, (Dkt. No. 155), a motion informing the court of alleged “improprieties” by defendants, requesting that the amended RICO statement be accepted as timely, and seeking to file a further amended complaint filed by Murphy, (Dkt. No. 156), an August 30, 2021, letter motion seeking relief that, admittedly, is unclear to the court filed by Murphy, (Dkt. No. 159), and, finally, another motion to further amend the amended complaint filed by Murphy, (Dkt. No. 170). For the reasons that follow, the Sheriff Defendants’ Rule 12(c) motions, (Dkt. No. 88; Dkt. No. 90; Dkt. No. 92; Dkt. No. 94; Dkt. No. 96; Dkt. No. 98; Dkt. No. 100; Dkt. No. 102), are granted in part and denied in part, as described below. Edwards and Westcott's Rule 12(b)(6) motion (Dkt. No. 143), is granted. Murphy's motion to amend the amended complaint, (Dkt. No. 123), is denied as moot. Murphy's subsequent motion to amend the amended complaint, (Dkt. No. 170), and his motion to amend the RICO statement, (Dkt. No. 157), are denied. Edwards and Westcott's motion regarding Murphy's proposed amended complaint, (Dkt. No. 144), is granted, to the extent it sought denial of Murphy's motion to amend, and denied in all other respects. The Sheriff Defendants’ motion requesting guidance in responding to the amended RICO statement, (Dkt. No. 155), is denied as moot. Murphy's motion informing the court of alleged Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 141 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 “improprieties” by defendants, requesting that the amended RICO statement be accepted as timely, and seeking to file a further amended complaint, (Dkt. No. 156), and August 30, 2021, letter motion, (Dkt. No. 159), are denied. II. Background 3 *2 Murphy is a Sergeant in the Onondaga County Sheriff's Department. (Am. Compl. ¶ 2.) The Sheriff Defendants were, or are, also members of the Sheriff's Department. (Id. ¶¶ 6-13.) Conway is the Sheriff, Cassalia is the Undersheriff, Gratien, who has since retired, was an Assistant Police Chief, Ciciarelli is the Chief Police Deputy, Dickinson is a Captain and Patrol Commander, Blumer and Anderson are Lieutenants, and Peluso, who has since retired, was a Sergeant and is now a Special Patrol Officer at the Onondaga County Civic Center. (Id. ¶¶ 6-13, 67.) Murphy warned his superior officers in the Sheriff's Department of “illegal arrests, inadequate police work, improper training, poor supervision, racially motivated behavior and improper, unprofessional and illegal conduct” committed by members of the Sheriff's Department. (Id. ¶ 29.) As a result of this, Murphy was “forbidden [from] do[ing] police work,” relieved of specific duties, forbidden from giving orders to subordinates, “required to sit at a desk during his entire shift doing nothing whatsoever,” forbidden from using a patrol car or displaying his uniform in public, “subject[ed] to threatening and abusive behavior” by others in the Sheriff's Department, was “deprived of police assistance and ... castigated for his efforts when his ... wife was menaced and assaulted,” has had his overtime opportunities reduced, “has been ordered to undertake menial tasks under circumstances that were deliberately chosen to cause him physical discomfort and agitation,” passed over for a promotion, subjected to “repeated unwarranted police and grand jury investigations,” “arbitrarily transferred,” “depriv[ed] ... of income,” and was “subjected to public ridicule and embarrassment.” (Id. ¶ 245.) Specifically, around November 2008, Murphy discovered improprieties surrounding the involvement of the Sheriff's Department with respect to an individual who committed suicide in the Onondaga County Justice Center. (Id. ¶¶ 36-38.) Murphy reported these improprieties, including the falsifying of medical records, to unnamed “supervising officers,” and Conway. (Id. ¶¶ 39-43.) On May 30, 2015, Murphy reported to Peluso an instance where a complaint was made by an African-American woman, which Murphy claimed was not properly addressed “due to her ethnic background and her sex,” (id. ¶¶ 49-55), and requested that the incident be investigated internally, (id. ¶¶ 98-100). Murphy was later aggressively confronted by Peluso, who “was loud, screaming and belligerent,” and conveyed to Murphy that Peluso did not want an investigation into the woman's complaint, and insinuated that it was inappropriate for Murphy to go against him. (Id. ¶¶ 63-64.) Murphy was again aggressively confronted by Peluso at a later date, and, after the confrontation, “bec[a]me[ ] sick” and was “admitted to a hospital with chest pains and high blood pressure,” causing him to miss work for several weeks. (Id. ¶¶ 134, 140, 143.) On March 9, 2016, Murphy informed Conway “of the improper use of a temporary holding cell to hold prisoners,” potentially in violation of their rights. (Id. ¶¶ 69-70.) Murphy documented a similar violation shortly thereafter to “his chain of command,” including Gratien, who, along with Conway, failed to remedy the situation. (Id. ¶¶ 72-75.) On April 23, 2016, Murphy became aware of an unconstitutional search and seizure of a suspect's blood, and, in an attempt to investigate it, contacted Blumer. (Id. ¶¶ 78-90.) Blumer told Murphy that she would handle the matter. (Id. ¶ 90.) Murphy later discovered that Peluso “falsified the police report to cover up the illegal search and seizure.” (Id. ¶ 92.) Murphy later learned that Blumer and Peluso contacted others in the Sheriff's Department, including Gratien, and stated that Murphy “was to blame for the illegal search.” (Id. ¶¶ 93-95.) Murphy was later informed “that, according to ... Gratien, Murphy was not promoted to Lieutenant because he interferes with investigations of others.” (Id. ¶ 97.) Peluso later filed a “vacuous” hostile work environment complaint against Murphy, intended to prevent him from being promoted. (Id. ¶ 101.) Murphy notified Ciciarelli and Gratien of the complaint, and requested that it be investigated, but his request was ignored. (Id. ¶¶ 102-04.) *3 On August 17, 2016, Murphy met with Ciciarelli and informed him of the Sheriff's Department's prior failure to properly investigate the aforementioned complaint made by an African-American woman based on “racial and sexual discrimination.” (Id. ¶¶ 105-06.) Murphy also informed Ciciarelli of the illegal search and seizure and “illegal and falsified reports filed by Peluso,” of which Gratien knew. (Id. ¶¶ 107-09.) Murphy reported to Ciciarelli that “Gratien had Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 142 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 expressed his opinion that Murphy should not be promoted due to his interference with other investigations.” (Id. ¶ 111.) Finally, Murphy conveyed to Ciciarelli that an “inordinate number of arrests [were being] made by [members of the Sheriff's Department] that were illegal for lack of probable cause.” (Id. ¶ 112.) After this meeting, Ciciarelli conveyed to an unnamed individual that “he investigated the situation and discovered that some of ... Murphy's allegations were true.” (Id. ¶ 116.) On August 29, 2016, Murphy was ordered to meet with Dickinson and Murphy's direct supervisor, Lieutenant Caruso. (Id. ¶¶ 59, 118.) During this meeting Murphy voiced his concerns to Dickinson regarding the illegal arrests conducted by members of the Sheriff's Department. (Id. ¶ 119.) Dickinson then ordered Murphy to “no longer do police work while under his command” specifically instructing Murphy “to refrain from initiating investigations ... to no longer apply for search warrants.” (Id. ¶ 121.) Murphy and Caruso both stated that this discipline was unjustified. (Id. ¶¶ 122-23.) Ciciarelli was later informed of Dickinson's order. (Id. ¶ 132.) From that point forward, Murphy faced various forms of discipline from members of the Sheriff's Department, including being ordered to “remove” his personal file cabinet, (id. ¶ 130), being required to work on Thanksgiving and Christmas, (id. ¶ 147), being told that he “ha[d] no duties and no responsibilities and [could not] independently perform any police related duties during his 10-hour shift[s],” (id. ¶ 152), and had his teaching schedule at the Police Academy reduced to just one class, at the behest of Dickinson, (id. ¶¶ 154-55). Then, on June 24, 2017, Murphy's wife “was struck by an unruly security guard and subjected to other untoward conduct” while attending a concert at the Amphitheater on Onondaga Lake. (Id. ¶ 158b. 4 ) The security guard was employed by Westcott, which is owned and operated by Edwards. (Id. ¶ 159b.) Murphy was working that day at the venue as “Venue Supervisor.” (Id. ¶ 164.) Murphy reported the incident involving his wife to Captain M. Pellizzari, and was subsequently relieved of his duties at the Amphitheater based upon complaints made by Edwards, who stated “that if Murphy work[ed there] in the future, the security company w[ould] walk off the job.” (Id. ¶ 168.) After the incident with his wife, Murphy continued to faced inter-Department discipline, including threats of “baseless” reprimand from Anderson for “silent insolence,” (id. ¶ 196-98), which Murphy believed was at the behest of Peluso, (id. ¶ 198); having an internal investigation opened against him surrounding his alleged improper use of his personal vehicle, (id. ¶¶ 202-04), which lead to Murphy's surveillance by Dickinson, (id. ¶ 202); further transfer, adding thirty miles to his daily commute, (id. ¶¶ 206-08); being prohibited by Dickinson from using a Sheriff's Department vehicle and being forced to cover his uniform when in public, (id. ¶ 210). When Murphy “[wa]s flagrantly disobeyed by [his] subordinates,” the subordinates “face[d] no discipline” even after Murphy reported their insubordination. (Id. ¶¶ 212-13.) Murphy was ordered to inspect thirty patrol vehicles “in contradiction to established policy” even though he was not sufficiently dressed to perform this task. (Id. ¶¶ 215-16.) Murphy was given two “counseling memos” at the behest of Dickinson, accusing him of intentionally misrepresenting Dickinson's past orders and alleging violations of department policy. (Id. ¶ 219.) *4 Murphy filed this suit on October 11, 2018. (Id. ¶ 229; see Dkt. No. 1.) After doing so, he “had several improper, unsupported and baseless referrals to the Onondaga County Sheriff's Office Internal Affairs Office” by Dickinson, (Am. Compl. ¶ 229), and he was transferred “without legitimate reason to such a position that would cause him to lose secondary employment opportunities and an immediate loss of income,” (id. ¶ 242). At an unspecified time, Conway requested that District Attorney Fitzpatrick “institute an unwarranted criminal action against Murphy because it [wa]s impossible to silence him using ‘in-house’ means.” (Id. ¶ 234.) III. Standard of Review A. Leave to Amend The filing of amended complaint is governed by Rule 15 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 15. Rule 15 provides that courts “should freely give leave” to amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend should be given “absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000); see Couloute v. Ryncarz, No. 11-CV-5986, 2012 WL 541089, at *3 (S.D.N.Y. Feb. 17, 2012) (citation omitted). However, motions to amend “should generally be denied in instances of futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 143 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 by amendments previously allowed, or undue prejudice to the non-moving party.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008); see Monahan, 214 F.3d at 283. The decision to grant or deny a motion to amend is committed to the sound discretion of the trial court, and the court's decision is not subject to review on appeal except for abuse of discretion. See Fielding v. Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007). Northern District of New York Local Rule 15.1(a) states, in relevant part: “[A] motion [to amend] must set forth specifically the proposed insertions and deletions of language and identify the amendments in the proposed pleading, either through the submission of a redline/strikeout version of the pleading sought to be amended or through other equivalent means.” Failure to comply with Local Rule 15.1(a) can result in denial of a motion to amend. See Cottone v. Does, No. 1:17- cv-1006, 2018 WL 2021513, at *4 (N.D.N.Y. Apr. 30, 2018) B. Motion to Dismiss “The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b) (6) motion to dismiss for failure to state a claim.” Wright v. Monroe Cmty. Hosp., 493 F. App'x 233, 234 (2d Cir. 2012) (internal quotation marks and citation omitted). The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled and will not be repeated here. For a full discussion of the governing standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191 (2d Cir. 2015). IV. Discussion A. Murphy's Motions to Amend On January 10, 2021, Murphy moved to amend his amended complaint. (Dkt. No. 123). On November 19, 2021, Murphy filed another motion to amend, (Dkt. No. 170), and therefore Murphy's former motion to amend is denied as moot. 5 See Warren v. U.S., 859 F. Supp. 2d 522, 526 (W.D.N.Y. 2012) (denying a pending motion to amend as moot after a subsequent motion to amend was filed). *5 In accordance with the court's October, 18, 2021 Text- Only Order, (Dkt. No. 164), Murphy was required to seek leave of the court before filing anything, which he did, (Dkt. No. 165). In granting leave, the court noted that: Murphy's motion for leave to amend shall be filed on or before November 19, 2021. Failure to file by that deadline will result in the summary denial of the motion for failure to comply with this Text Only Order. Moreover, failure to strictly comply with the Local Rules of Practice, and, in particular, Rules 7.1 and 15.1, will result in summary denial of the motion. (Dkt. No. 169.) The court deemed it necessary to be explicit in its instructions due to Murphy's history of untimely filings, (Dkt. 154 (filed two days after the required date)), failure to comply with the Local Rules, (Dkt. No.123 (failing to comply with Local Rule 15.1(a))), and general lack of attention to detail with respect to prior submissions. 6 Murphy's November 19, 2021, motion to amend indicated via red text proposed amendments to his proposed second amended complaint, (Dkt. No. 123, Attach. 1), rather than the operative complaint, (Dkt. No. 60). Therefore, the court cannot “identify the amendments in the proposed pleading” to the “pleading sought to be amended,” and can only readily discern the proposed amendments to Murphy's proposed second amended complaint, which is not the operative pleading. See N.D.N.Y. L.R. 15.1(a). For this reason, and because the court took special pains to ensure compliance with the Local Rules, and warned Murphy about the consequences of his failure to do so, Murphy's motion to amend, (Dkt. No. 170), is denied. See Cottone, 2018 WL 2021513, at *4 (“[F]ailure to meet the requirements of [the] Local Rule[s] is an independent ground upon which to deny [a motion to amend].”); (Dkt. No. 169 (“[F]ailure to strictly comply with the Local Rules of Practice, and, in particular, Rules 7.1 and 15.1, will result in summary denial of the motion.”)). B. RICO *6 Murphy's first and second causes of action allege RICO claims against Conway, Ciciarelli, Dickinson, Blumer, Anderson, Peluso, Gratien, Cassalia, Hummel, Cambareri, 7 Fitzpatrick, Carden, Luczka, and Edwards in both their individual and official capacities. 8 (Am. Compl. at 47, 51.) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 144 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 The Sheriff Defendants and Edwards move to dismiss these causes of action, for several reasons, (Dkt. No. 88, Attach. 1 at 4-11; Dkt. No. 90, Attach. 1 at 4-11; Dkt. No. 92, Attach. 1 at 5-12; Dkt. No. 94, Attach. 1 at 4-11; Dkt. No. 96, Attach. 1 at 4-11; Dkt. No. 98, Attach. 1 at 3-11; Dkt. No. 100, Attach. 1 at 4-11; Dkt. No. 102, Attach. 1 at 4-11; Dkt. No. 143, Attach. 3 at 4-11), but, most notably, because Murphy failed to comply with Local Rule 9.2. (Dkt. No. 120 at 1; Dkt. No. 143, Attach 3. at 9.) Hummel, Cambareri, Fitzpatrick, Carden, and Luczka did not move to dismiss. RICO grants standing to pursue a civil damages remedy to “any person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c). The statute “imposes liability on individuals working for an ‘enterprise’ that commits certain predicate crimes that amount to a ‘pattern of racketeering activity.’ ” Reich v. Lopez, 858 F.3d 55, 59 (2d Cir. 2017) (quoting 18 U.S.C. §§ 1962, 1964). A plaintiff asserting a RICO violation must adequately plead “(1) the defendant's violation of [18 U.S.C.] § 1962, (2) an injury to plaintiff's business or property, and (3) the causation of the injury by the defendant's violation.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir. 2006) (internal quotation marks and citations omitted; alteration in original). To adequately plead the causation element of a RICO claim, the plaintiff must allege that the defendant's conduct was the “legal, or proximate, cause of [his] injury, as well as the logical, or ‘but for,’ cause.” Id. at 283-84 (quoting Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., 271 F.3d 374, 380 (2d Cir. 2001)). To allege a RICO conspiracy under 18 U.S.C. § 1962(d), a plaintiff must allege “a conspiracy to commit a substantive RICO violation.” Spool, 520 F.3d at 183. In particular, “[b]ecause the core of a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990). As a result, to properly allege a civil RICO conspiracy under Section 1962(d), a plaintiff must allege that the defendant “knew about and agreed to facilitate the [RICO] scheme.” Salinas v. United States, 522 U.S. 52, 66 (1997). Regarding the facilitation requirement, “a plaintiff must allege that the conspirator intended to further an endeavor that, if completed, would satisfy all of the elements of a substantive” criminal offense; however, it is sufficient for a plaintiff to allege that the “conspirator adopted the goal of furthering or facilitating the criminal endeavor.” Malvar Egerique v. Chowaiki, No. 19 Civ. 3110, 2020 WL 1974228, at *8 (S.D.N.Y. Apr. 24 2020). “Local Rule 9.2 requires a party asserting a claim under RICO to ‘file a RICO statement within thirty (30) days of the filing of the pleading containing such claim.’ ” Poole v. Bendixen, No. 5:20-CV-0697, 2021 WL 3737780, at *11 (N.D.N.Y. Aug. 24, 2021). Failure to timely file a RICO statement pursuant to this rule is grounds for dismissal of the RICO claims. See Pierce v. Homecomings Fin. LLC, No. 17-CV-0882, 2017 WL 5991750, at *2 n.2 (N.D.N.Y. Dec. 4, 2017) (noting that, where a plaintiff failed to file a RICO statement pursuant to Local Rule 9.2, “[p]laintiff's RICO claim may be dismissed for this reason alone”); see also Amaker v. Kelley, No. 9:01-CV-877, 2009 WL 385413, at *11 (N.D.N.Y. Feb. 9, 2009) (holding that failure to file a RICO statement “provid[es] a threshold for dismissal of [a] plaintiff's RICO claim”); Spoto v. Herkimer Cnty. Trust, No. 99-CV-1476, 2000 WL 533293, at *3 n.2 (N.D.N.Y. Apr. 27, 2000) (“[T]he [c]ourt would be justified to dismiss [the] complaint based upon the[ ] very untimely filing of the[ ] Local Rule 9.2 RICO Statement.”). *7 Murphy filed the first iteration 9 of his amended complaint alleging RICO causes of action on July 1, 2019, (Dkt. No. 56), and he filed his RICO statement on August 16, 2021, (Dkt. No. 154), well beyond the time permitted by Local Rule 9.2. Because of this violation of Local Rule 9.2, Murphy's first and second causes of action are dismissed as against all defendants. See Poole, 2021 WL 3737780, at *11 (denying RICO claims where Plaintiff failed to timely file a RICO statement under Local Rule 9.2, “regardless of Plaintiffs’ good-faith work on other aspects of th[e] case”); see also Citadel Mgmt., Inc. v. Telesis Trust, Inc., 123 F. Supp. 2d 133, 146-47 (S.D.N.Y. 2000) (dismissing complaint against non-moving defendants where moving defendants raised arguments that supported dismissal of all defendants because plaintiff was “on notice” of these arguments and had “responded in full”). Given that Murphy's RICO statement was untimely, and his RICO claims are dismissed, Murphy's motion to amend the RICO statement, (Dkt. No. 157), is denied, and his motion that, among other things, requested that the amended RICO statement be accepted as timely, to the extent it sought such relief, (Dkt. No. 156), is denied as moot. Further, the Sheriff Defendants’ motion requesting guidance on responding to Murphy's amended RICO statement, (Dkt. No. 155), is also denied as moot. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 145 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 C. Retaliation Murphy's third, fourth, and sixth causes of action allege retaliation in violation of 42 U.S.C. § 1983 and Article 1, Section 8 of the New York State Constitution against Onondaga County, the Onondaga County Sheriff's Department, the Sheriff Defendants, Hummel, Fitzpatrick, Carden, and Luczka. (Am. Compl. at 52, 56, 64.) The Sheriff Defendants moved to dismiss these claims, arguing that there is no causal connection between Murphy's speech and any alleged adverse employment action. (Dkt. No. 88, Attach. 1 at 11-13; Dkt. No. 90, Attach. 1 at 11-13; Dkt. No. 92, Attach. 1 at 12-13; Dkt. No. 94, Attach. 1 at 12-13; Dkt. No. 96, Attach. 1 at 12-14; Dkt. No. 98, Attach. 1 at 11-12; Dkt. No. 100, Attach. 1 at 12-14; Dkt. No. 102, Attach. 1 at 13-15.) Dickinson also contends that Murphy's speech was made as an employee of the Sheriff's Department, rather than as a member of the public, and that any actions taken by Dickinson were “at most de minimis inconvenience[s]” but not adverse employment actions. (Dkt. No. 102, Attach. 1 at 14-15.) Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka do not move to dismiss. Murphy fails to address any of the arguments made by Blumer, Anderson, Peluso, Gratien, and Ciciarelli. (Dkt. No. 124; Dkt. No. 125; Dkt. No. 126.) With respect to Conway, Murphy appears to contend that supervisory liability provides a basis to avoid dismissal, and that a further amended complaint will also support his retaliation claims against Conway. (Dkt. No.116 at 15-16.) Regarding Dickinson and Cassalia, Murphy appears to also argue that supervisory liability provides a basis to avoid dismissal, and that Dickinson and Cassalia's “efforts were focused on the fabrication of false reports.” (Dkt. No. 117 at 13; 118 at 13.) Murphy does not provide a single citation to the amended complaint in support of this position. (Id.) To withstand a motion to dismiss on a First Amendment retaliation claim, a plaintiff must demonstrate: (1) that he “engaged in protected First Amendment activity;” (2) that “he suffered an adverse employment action;” and (3) that “there was a causal connection between the protected activity and the adverse employment action.” Osuan v. City of New York, No. 18cv151, 2019 WL 2544866, at *4 (S.D.N.Y. June 20, 2019) (quoting Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007)); see Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015). *8 Whether an employee's speech is protected by the First Amendment is a two-part inquiry. See Reynolds v. Village of Chittenango, No. 5:19-cv-416, 2020 WL 1322509, at *3 (N.D.N.Y. Mar. 20, 2020) (citation omitted). First, the subject of the employee's speech must be “a matter of public concern.” Id. (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)). Second, the employee must be speaking “as a citizen rather than solely as an employee.” Id. (quoting Jackler, 658 F.3d at 235). An adverse employment action is qualified as “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Shanks v. Vill. of Catskill Bd. of Trs., 653 F. Supp. 2d 158, 166 (N.D.N.Y. 2009) (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225-26 (2d Cir. 2006)). “Under this definition, adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand[;] as well as lesser actions such as negative reviews, false accusations, and menial job assignments.” Id. (quoting Zelnik, 464 F.3d at 226) (internal quotation marks and other citation omitted). Finally, a plaintiff must establish “a causal relationship between the protected speech and the adverse employment action.” Id. “The causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action.” Cotarelo v. Vill. of Sleepy Hollow Police Dept., 460 F.3d 247, 251 (2d Cir. 2006) (citation omitted). “Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.” Shanks, 653 F. Supp. 2d at 167 (citation omitted). To demonstrate a causal connection, such to “survive a motion to dismiss,” a plaintiff “need not clearly establish that the defendant harbored retaliatory intent. It is sufficient to allege facts which could reasonably support an inference to that effect.” Stajic v. City of New York, 214 F. Supp. 3d 230, 235 (S.D.N.Y. 2016) (quoting Posr v. Court Officer Shield No. 207, 180 F.3d 409, 418 (2d Cir. 1999)). The Second Circuit has recently clarified that “there is no special rule for supervisory liability [under § 1983]. Instead, a plaintiff must plead and prove that each ... defendant, through [their] own individual actions, has violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal quotation marks and citation omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 146 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 As a preliminary matter, Murphy's retaliation claim pursuant to Article I, Section 8 of the New York State Constitution is duplicative of his § 1983 First Amendment retaliation claim. See Leibovitz v. City of New York, No. 14-CV-7106, 2018 WL 1157872, at *21 (E.D.N.Y. Mar. 2, 2018) (“[V]arious federal courts in this circuit have held that there is no private right of action under the New York State Constitution where ... remedies are available under [§] 1983.”) (internal quotation marks and citations omitted); cf. Sanders v. City of New York, No. 12 CV 2906, 2015 WL 2331105, at *9 (S.D.N.Y. May 11, 2015). Thus, Murphy's sixth cause of action, alleging a violation of the New York Constitution, is dismissed as to all defendants. *9 With respect to Murphy's First Amendment retaliation claims brought pursuant to § 1983, he has adequately pleaded that he was speaking as a citizen on matters of public concern when he reported to his superior officers “illegal arrests, inadequate police work, improper training, poor supervision, racially motivated behavior and improper, unprofessional[,] and illegal conduct” committed by members of the Sheriff's Department. (Am. Compl. ¶ 29); see Raymond v. City of New York, 317 F. Supp. 3d 746, 755-56 (S.D.N.Y. 2018) (holding that a police officer “engaged in speech in his capacity as a private citizen on a matter of public concern” when he alerted his commanding officer of improper arrests); see also Matthews v. City of New York, 779 F.3d 167, 174 (2d Cir. 2015) (“[W]hen a public employee whose duties do not involve formulating, implementing, or providing feedback on a policy ... engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.”); see also Shanks, 653 F. Supp. 2d at 165 (N.D.N.Y. 2009) (finding that a firefighter reporting fire department safety violations was protected speech). Further, Murphy has adequately pleaded that he faced adverse employment action. Specifically, Murphy alleges that Conway requested that Fitzpatrick “institute an unwarranted criminal action against Murphy,” (Am. Compl. ¶ 234), that Gratien, Blumer, 10 and Peluso colluded to create a falsified police report in an attempt to blame Murphy for an illegal search and seizure conducted by others in the Sheriff's Department, raised by Murphy, (id. ¶ 322), that Anderson filed an unsubstantiated internal complaint against Murphy, (id. ¶¶ 198, 322), that Peluso filed multiple unsubstantiated internal complaints against him, (id. ¶¶ 101, 137), at least one of which was “specifically intended to prevent ... Murphy from being promoted,” (id. ¶ 101), and, finally, that Dickinson drastically reduced Murphy's duties and responsibilities, including his teaching role at the police academy, and made “several improper, unsupported and baseless referrals [of Murphy] to the Onondaga County Sheriff's Office Internal Affairs Office,” (id. ¶¶ 121, 154-55, 229). These all constitute adverse employment actions. See Shanks, 653 F. Supp. 2d at 166. 11 Finally, Murphy has adequately pleaded a causal connection between his speech and these adverse actions with respect to the Sheriff Defendants, other than Ciciarelli and Cassalia. The amended complaint alleges that, after Murphy informed Conway of the alleged corruption in the Sheriff's Department, Conway requested that Fitzpatrick “institute an unwarranted criminal action against Murphy, because it [wa]s impossible to silence him using ‘in-house’ means.” (Am. Compl. ¶¶ 69, 234.) At this stage in the litigation, this is adequate to demonstrate a causal connection between Murphy's speech and the alleged adverse employment action carried out by Conway. See Reynolds, 2020 WL 1322509, at *3 (holding a causal connection existed where “after [plaintiff] complained about his defective patrol car, he was subject to ... threats of false and malicious criminal prosecution” (internal quotation marks and citation omitted)). *10 With respect to Gratien, Blumer, and Peluso, the amended complaint alleges that, shortly after raising concerns to Blumer regarding an improper search and seizure conducted by members of the Sheriff's Department, which involved Peluso falsifying a policy report to cover the incident up, Gratien, Blumer, and Peluso “collu[ded]” to create a falsified police report in an attempt to blame Murphy for the incident. (Am. Compl. ¶¶ 88-95, 322). Further, after that incident, Gratien expressed that Murphy “was not promoted to Lieutenant because he interferes with investigations of others.” (Id. ¶ 97.) At this stage in the litigation, these allegations are adequate to demonstrate a causal connection between Murphy's speech and the adverse employment actions carried out by Gratien, Blumer, and Peluso. 12 See Jackson, WL 5698535, at *5 (finding a causal connection existed based on allegations that the defendants threatened and harassed the plaintiff, and falsely represented the plaintiff's performance reviews). With respect to Anderson, the amended complaint alleges that, he filed an internal affairs complaint against Murphy, “following Peluso's lead.” (Am. Compl. ¶¶ 198, 322). Given that Peluso's complaint was brought shortly after Murphy raised concerns to Peluso about an instance where Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 147 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 a complainant was not “attent[ed to] by [the Sheriff's Department] ... due to her ethnic background and her sex,” that the complaint was “specifically intended to prevent ... Murphy from being promoted,” and because Anderson, was “following Peluso's lead,” (Am. Compl. ¶¶ 44-55, 101, 322), Anderson's Rule 12(c) motion is denied. Stajic, 214 F. Supp. 3d at 235 (holding, that to “survive a motion to dismiss,” a plaintiff “need not clearly establish that the defendant harbored retaliatory intent. It is sufficient to allege facts which could reasonably support an inference to that effect” (citation omitted)). With respect to Ciciarelli and Cassalia, Murphy has failed to adequately plead a cause of action for retaliation. Regarding Cassalia, there is not a single specific allegation in the amended complaint demonstrating that Cassalia was a participant in any adverse employment action. Regarding Ciciarelli, Murphy alleges simply that Ciciarelli was aware of the adverse employment action, but not that he was involved in anyway, which is inadequate. See Tangreti, 983 F.3d at 618. To the extent Murphy argues that future amendments will cure any defect with respect to this clause of action, (see, e.g., Dkt. No.116 at 15-16), this argument does not save his claim. 13 See Austin Air Sys., Ltd. v. Sager Elec. Supply Co., Inc., No. 19-CV-562JLS, 2022 WL 464230, at *8 (W.D.N.Y. Feb. 15, 2022) (“In ruling on a motion under Rule 12(b)(6), ... the court may consider only ‘the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated into the complaint by reference.’ ”) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007)); see also supra Part IV.A. (denying Murphy's pending motions to amend). *11 For these reasons, Murphy's third and fourth causes of action are dismissed as against Ciciarelli and Cassalia, and may proceed against all of the other Sheriff Defendants, as well as the non-moving parties: Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka. D. Section 1985 Conspiracy Murphy alleges a § 1985 conspiracy against Onondaga County, the Onondaga County Sheriff's Department, the Sheriff Defendants, Hummel, Fitzpatrick, Carden, and Luczka. The Sheriff Defendants move to dismiss this claim, arguing among other things, that, if the court is to construe this cause of action as brought under § 1985(2), that the “amended complaint contains only vague and conclusory allegations which fail to identify a single act [by any of the Sheriff Defendants] in furtherance of any conspiracy.” (Dkt. No. 129 at 7; see Dkt. No. 130 at 6; Dkt. No. 131 at 6; Dkt. No. 135 at 6-7; Dkt. No. 136 at 6-7; Dkt. No. 137 at 6-7.) Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka do not move to dismiss. Murphy argues that “unquestionably, [he] was the subject of efforts by all of the defendants to impede, hinder, obstruct and/or defeat his pursuit of justice during the course of this federal proceeding,” citing only one example in support of this position, that he “was the subject of a grand jury target letter” that “was based on no probable cause and was purely an attempt to deter [him].” (Dkt. No. 116 at 18; Dkt. No. 124 at 12; Dkt. No. 125 at 12-13; Dkt. No. 126 at 12.) Further, with respect to certain defendants, Murphy argues that future “supplement[ations]” will cure any defect in the amended complaint regarding his § 1985 claim. (Dkt. No. 117 at 14; Dkt. No. 118 at 14.) As a preliminary matter, there is some dispute pursuant to which paragraph of 42 U.S.C. § 1985 Murphy brings his fifth cause of action. Murphy's fifth claim is for “conspiracy to retaliate in violation of the first amendment” under 42 U.S.C. § 1985. (Am. Compl. at 60-61.) It appears that Murphy brings this cause of action under 42 U.S.C. § 1985(3) (Am. Compl. ¶ 321 (“Defendants ... entered into a corrupt agreement to injure ... Murphy ... [and] deprive him of his Constitutional rights”)); see Oliver v. N.Y. State Police, No. 1:19-cv-233, 2020 WL 1849484, at *9 (N.D.N.Y. Apr. 13, 2020) (holding that, “[t]o state a conspiracy claim under Section 1985(3), among other things, a plaintiff must allege: “1) a conspiracy; 2) for the purpose of depriving ... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws” ” (quoting Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015)). However, after the Sheriff Defendants, in their various Rule 12(c) motions, noted that, under 42 U.S.C. § 1985(3), a plaintiff must allege “some class based discriminatory amicus,” which Murphy had not adequately pleaded, (see, e.g., Dkt. No. 88, Attach. 1 at 14) (citing Trombley v. O'Neill, 929 F. Supp. 2d 81, 96 (N.D.N.Y. 2013)), Murphy argues that his fifth cause of action is actually conspiracy to obstruct justice, in violation of the second clause of 42 U.S.C. § 1985(2), (see, e.g., Dkt. 116 at 17-18.) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 148 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 Even though the court is not persuaded that Murphy intended to bring this cause of action under 42 U.S.C. § 1985(2), out of an abundance of caution, it will analyze it as such. *12 The second clause of 42 U.S.C. § 1985(2) prohibits “two or more persons” from conspiring for to purpose of: [I]mpeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws. With respect to a claim brought under this clause of § 1985(2), a plaintiff must plead “(1) a conspiracy, (2) for the purpose of impeding, hindering, obstructing, or defeating, in any manner, (3) the due course of justice in any State or Territory, (4) with intent to deny any citizen the equal protection of the laws.” Thomas v. DeCastro, No. 14-CV-6409, 2018 WL 1322207, at *12 (S.D.N.Y. Mar. 13, 2018) (internal quotation marks and citation omitted). “[A] claim under the second clause of [§] 1985(2) requires a showing of class-based invidiously discriminatory animus on the part of the conspiring parties.” Langton v. Town of Chester Library Bd., No. 14-cv-9474, 2020 WL 2850898, at *4 (S.D.N.Y. June 1, 2020) (internal quotation marks and citation omitted); see Ruggiero v. City of Cortland, No. 5:17-CV-790, 2018 WL 5983505, at *8 (N.D.N.Y. Nov. 14, 2018) (dismissing a conspiracy claim brought under the second clause of § 1985(2) where, plaintiff “failed to plausibly allege that any of th[e] conspiratorial misconduct stem[ed] from the kind of racial or other class- based animus required by controlling federal law” (internal quotation marks and citation omitted)). Murphy concedes the fact that he “has not alleged that damages were caused as a result of racial discrimination or other discriminatory means,” (see, e.g., Dkt. No. 124 at 11), a requirement under the second clause of § 1985(2). See Langton, 2020 WL 2850898, at *4; see Ruggiero, 2018 WL 5983505, at *8. Because Murphy makes no attempt to demonstrate racial or other class-based animus 14 on behalf of any defendant, he has failed to adequately plead a claim under the second clause of § 1985(2), and, thus, his fifth cause of action is dismissed as against all defendants. 15 See Citadel, 123 F. Supp. at 146-47. E. Equal Protection *13 Murphy's seventh cause of action alleges violations of the Equal Protection Clause of the Fourteenth Amendment, under 42 U.S.C. § 1983 against Onondaga County, the Onondaga County Sheriff's Department, the Sheriff Defendants, Hummel, Fitzpatrick, Carden, and Luczka. (Am. Compl. at 68.) The Sheriff Defendants move to dismiss this claim, raising several arguments in support of their position, (Dkt. No. 88, Attach. 1 at 15-17; Dkt. No. 90, Attach. 1 at 16-17; Dkt. No. 92, Attach. 1 at 16-17; Dkt. No. 94, Attach. 1 at 16-18; Dkt. No. 96, Attach. 1 at 16-17; Dkt. No. 98, Attach. 1 at 14-16; Dkt. No. 100, Attach. 1 at 16-18; Dkt. No. 102, Attach. 1 at 17-18). Relevant here, they contend that Murphy bases his equal protection claim on a class-of-one theory, which is inapplicable. (Dkt. No. 129 at 7-8; Dkt. No. 130 at 7; Dkt. No. 131 at 7; Dkt. No. 135 at 7-8; Dkt. No. 136 at 7-8; Dkt. No. 137 at 7-8.) Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka do not move to dismiss. “The Equal Protection Clause of the Fourteenth Amendment requires the government to treat all similarly situated individuals alike.” Young v. Suffolk County, 705 F. Supp. 2d 183, 204 (E.D.N.Y. 2010) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, (1985)). When a plaintiff does not allege an equal protection violation due to their membership in a protected class, they may still prevail on their claim under a “class-of-one” theory. See NRP Holdings LLC v. City of Buffalo, 916 F.3d 177 (2d Cir. 2019) (“[T]he Supreme Court has ... endorsed a class-of-one theory for equal protection claims, under which a single individual can claim a violation of her Equal Protection rights based on arbitrary disparate treatment.” (internal quotation marks and citations omitted)); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To succeed under a class-of-one theory, a plaintiff must demonstrate “[1] that [ ]he has been intentionally treated differently from others similarly situated and [2] that there is no rational basis for the difference in treatment.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019) (citation omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 149 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 In Engquist v. Oregon Department of Agriculture, the Supreme Court held that the class-of-one theory has no application in the public employment context. See 553 U.S. 591, 607-08 (2008); see also Booker v. City of New York, No. 14 Civ. 9801, 2017 WL 151625, at *5 (S.D.N.Y. Jan. 13, 2017) (“[B]ecause ‘class-of-one’ Equal Protection claims are unavailable in the public employment context, plaintiff cannot state a viable federal Equal Protection claim [under § 1983].”). Because Murphy's equal protection claim relies on the class of one theory, (Dkt. No. 116 at 18-19 (“It has long been held that plaintiff might bring a suit based upon his membership in [a] class[-]of[-]one.... [Murphy's] class ... may be articulated in any number of ways including ‘all Sheriff's Deputies’, ‘all Sheriff's Deputies in Onondaga County’, ‘all police officers’, etc.” (internal citation omitted)); see Dkt. No. 117 at 15; Dkt. No. 118 at 15; Dkt. No. 124 at 12-13; Dkt. No. 125 at 13; Dkt. No. 126 at 12-13), and Murphy's claim is in the context of public employment, it must be dismissed. See Stas v. Lynch, 576 F. Supp. 2d 322, 323, 325 (D. Conn. 2008) (finding that former Connecticut State Police Trooper did not have a valid claim against Connecticut State Police official pursuant to § 1983, under the class-of-one theory, because this theory was inapplicable in the context of public employment). For this reason, Murphy's seventh cause of action is dismissed as against all defendants. See Citadel, 123 F. Supp. 2d at 146-47. F. Defamation Murphy's eighth cause of action is for defamation, defamation per se, slander, and libel against Onondaga County, the Onondaga County Sheriff's Department, the Sheriff Defendants, Hummel, Fitzpatrick, Carden, Luczka, and Edwards. (Am. Compl. at 70.) The Sheriffs Defendants and Edwards move to dismiss these claims, with the Sheriffs Defendants arguing that Murphy has not adequately pleaded defamation, (Dkt. No. 88, Attach. 1 at 17-18; Dkt. No. 90, Attach. 1 at 18-20; Dkt. No. 92, Attach. 1 at 18-19; Dkt. No. 94, Attach. 1 at 19-20; Dkt. No. 96, Attach. 1 at 18-19; Dkt. No. 98, Attach. 1 at 16-17; Dkt. No. 100, Attach. 1 at 18-20; Dkt. No. 102, Attach. 1 at 19-21), and that, even if he did, the claims are time- barred, (Dkt. No. 88, Attach. 1 at 19-20; Dkt. No. 90, Attach. 1 at 17-18; Dkt. No. 92, Attach. 1 at 17-18; Dkt. No. 94, Attach. 1 at 18-19; Dkt. No. 96, Attach. 1 at 17-18; Dkt. No. 100, Attach. 1 at 18; Dkt. No. 102, Attach. 1 at 18-19), and Edwards making similar arguments, (Dkt. No. 143, Attach. 3 at 11-14). Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka do not move to dismiss. *14 Murphy argues that the statute of limitations does not bar his claims because “[e]ven if the slanderous comments made by defendants during the meeting that [sic.] the Onondaga County District Attorney's Office were the only comments to base his claim on, ... [that] this meeting occurred in or about January of 2019.” (Dkt. No. 116 at 20-21; see Dkt. 117 at 17; Dkt. No. 118 at 17; Dkt. No. 124 at 14-15; Dkt. No. 125 at 15; Dkt. No. 126 at 14-15; Dkt. No. 148 at 24.) He also contends that the statute of limitation does not bar his claims because the defendants’ “investigations and allegations against Murphy continued even as this case progressed.” (Dkt. No. 124 at 15; Dkt. No. 125 at 15; Dkt. No. 126 at 150; see Dkt. No. 148 at 25.) Murphy further asserts that he has sufficiently pleaded all elements to his defamation claims because “[a]s to who the defaming remarks were made, that would include the defendants herein, selected members of the District Attorney's Office, possibly grand jury participants and others. As to the words stated, that would include false allegations that Murphy had committed a crime.” (Dkt. No. 116 at 20; see Dkt. No. 117 at 18; Dkt. No. 118 at 18; Dkt. No. 124 at 15; Dkt. No. 125 at 15; Dkt. No. 126 at 15; see Dkt. No. 148 at 25.) Murphy also asserts that his proposed second amended complaint establishes additional support for his defamation claims. (Dkt. No. 116 at 21; Dkt. No. 124 at 15; Dkt. 125 at 15-16; Dkt. No. 126 at 15.) Finally, he argues that discovery would allow him to cure any defects in his defamation cause of action. (Dkt. No. 118 at 18; Dkt. No. 148 at 25 (“As it cannot be denied that there was a Grand Jury investigation, there must be a criminal complaint from Edwards/ Westcott. Further, it is obvious that there is no probable cause to institute such an investigation. Undeniably, someone lied. Plaintiff asks only the opportunity to view these documents. That is only fair.”).) “Defamation ... consist[s] of the twin torts of libel and slander.” Alexander v. City of Syracuse, No. 5:17-CV-1195, 2018 WL 6591426, at *6 (N.D.N.Y. Dec. 13, 2018) (quoting Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001)). To state a claim for defamation under New York law, a plaintiff must allege “a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, ... caus[ing] special harm or constitut[ing] defamation per se.” Jackie's Enters., Inc. v. Belleville, 165 A.D.3d 1567, 1569-70 (3d Dep't 2018) (citations omitted). “While the Second Circuit has abandoned the stringent in haec verba standard in defamation cases, to Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 150 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 comply with the dictates of Rule 8(a) a plaintiff must still ‘afford defendant sufficient notice of the communications complained of to enable him to defend himself.’ ” 16 Simons v. New York, 472 F. Supp. 2d 253, 267 (N.D.N.Y. 2007) (quoting Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986)). For a defamation claim to survive a motion to dismiss, in compliance with Rule 8, a plaintiff must “identify (1) the allegedly defamatory statements; (2) the person who made the statements; (3) the time when the statements were made; and, (4) the third parties to whom the statements were published.” Hillary v. Vill. of Potsdam, No. 7:12-cv-1669, 2015 WL 902930, at *11 (N.D.N.Y. Mar. 3, 2015) (citation omitted). In other words, the allegations must include “the time, place, and manner of the false statement.” Arvanitakis v. Lester, 145 A.D.3d 650, 651 (2d Dep't 2016). As to slander per se, there are four categories of statements for which damages need not be shown: statements “(i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.” Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992) (citations omitted). *15 “Under New York law, the statute of limitations for a defamation claim is one year.” McKenzie v. Dow Jones & Co., Inc., 355 F. App'x 533, 535 (2d Cir. 2009) (citing N.Y. C.P.L.R. § 215(3)). With respect to Conway, Murphy fails to adequately plead a claim for defamation. Murphy alleges two arguably 17 defamatory statements attributable to Conway in the amended complaint. (Am. Compl. ¶¶ 73, 234.) The first of these statements occurred on March 9, 2016, (Id. ¶ 73), assuming arguendo that this statement was defamatory, it is time- barred, as it occurred more than one year prior to the commencement of this action, on October 11, 2018, (Dkt. No. 1). The second statement attributable to Conway is: “Conway request[ed] ... Fitzpatrick to institute an unwarranted criminal action against Murphy because it is impossible to silence him using ‘in-house’ means.” (Am. Compl. ¶ 234.) Although Murphy appears to argue in his opposition papers that this occurred “in or about January of 2019,” (Dkt. No. 116 at 21), the amended complaint does not allege when this statement was made, (Am. Compl. ¶ 234), and, thus, fails to adequately plead a claim for defamation against Conway. See Moleon v. Alston, No. 21 Civ. 1398, 2021 WL 5772439, at *15 (S.D.N.Y. Dec. 3, 2021) (“Where a plaintiff fails to identify ... the time ... in which [the statement] w[as] made, a defamation claim does not survive a motion to dismiss.” (internal quotation marks and citation omitted)); see also Austin Air Sys., 2022 WL 464230, at *8 (“In ruling on a motion under Rule 12(b)(6), ... the court may consider only ‘the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated into the complaint by reference.’ ” (quoting McCarthy, 482 F.3d at 191)). Murphy also fails to adequately plead a claim for defamation against Blumer, Peluso, Anderson, Gratien, and Dickinson. Murphy alleges several arguably defamatory statements attributable to these defendants in the amended complaint. (Am. Compl. ¶¶ 65, 95, 97,111, 118, 124, 136, 141-42, 154, 168, 196, 322.) As alleged in the amended complaint, these statements were made “[a] few days [after]” May 30, 2015, (id. ¶¶ 49, 63, 65), on or about April 24, 2016, (id. ¶¶ 78, 93, 95), on or before June 3, 2016, (id. ¶ 97), on or before August 10, 2016, (id. ¶ 101), on September 29, 2016, (id. ¶¶ 134, 136-137), on October 5, 2016, (id. ¶ 141), “[d]uring the November, 2016 time period,” (id. ¶ 154), and “on or about June 24, 2017,” (id. ¶¶ 158, 168), and in or before September 2017, (id. ¶ 196). Assuming without deciding that these statements were defamatory, they are time-barred, as they occurred more than one year prior to the commencement of this action, on October 11, 2018, (Dkt. No. 1). 18 *16 Nowhere in the amended complaint does Murphy attribute any specific defamatory statements to Cassalia or Ciciarelli, 19 and, thus, he has not made out a claim for defamation as against them. See Hillary, 2015 WL 902930, at *11 (for a defamation claim to survive a motion to dismiss, a plaintiff must “identify ... the allegedly defamatory statements ... [and] the person who made the statements” (internal quotation marks and citation omitted)). Finally, with respect to Edwards, Murphy has failed to adequately plead defamation. The only arguably defamatory statement made by Edwards included in the amended complaint was made “on or about June 24, 2017.” (Am. Compl. ¶¶ 158, 168.) Again, assuming arguendo that this statement was defamatory, it is time-barred, as it occurred more than one year prior to the commencement of this action, on October 11, 2018. (Dkt. No. 1.) Finally, in Murphy's various opposition papers, he appears to make the same, or substantially similar, arguments, regardless of the applicability of the arguments to the specific motion Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 151 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 he is opposing. (See, e.g., Dkt. 118 at 17-18 (responding to a statute of limitations argument that was not made with respect to this specific defendant).) He argues that his claims are not time-barred because “[e]ven if the slanderous comments made by defendants during the meeting that the Onondaga County District Attorney's Office were the only comments to base his claim on, there is no problem with the statute of limitations ... [because] this meeting occurred in or about January of 2019.” (Dkt. No. 116 at 20-21; Dkt. 117 at 17; Dkt. No. 118 at 17; Dkt. No. 124 at 14-15; Dkt. No. 125 at 15; Dkt. No. 126 at 14-15). This is borderline nonsensical. It is not apparent to the court to which “meeting that [sic.] the Onondaga County District Attorney's Office” Murphy is referring, as the amended complaint does not discuss such a meeting. If Murphy is referring to his allegation that “Conway request[ed] District Attorney Fitzpatrick ... institute an unwarranted criminal action against Murphy,” (Am. Compl. ¶ 234), then this argument would have no baring on any claim against any defendant besides Conway, 20 as there is nothing indicating that any defendant besides Conway and Fitzpatrick were present or involved in this meeting, let alone made defamatory statements during the meeting. Further, Murphy contends that “[defendant's] investigations and allegations against Murphy continued even as this case progressed,” (Dkt. No. 124 at 15; Dkt. No. 125 at 15; Dkt. No. 126 at 150; see Dkt. No. 148 at 25), yet he provides no citations to the amended complaint in support of this position. Finally, Murphy's contention that future discovery would cure any defects in his defamation cause of action, (Dkt. No. 118 at 18; Dkt. No. 148 at 25), is equally unpersuasive. See Arrindel-Martin v. City of Syracuse, No. 5:18-CV-780, 2018 WL 6622193, at *6 (N.D.N.Y. Dec. 18, 2018) (“[T]he purpose of the plausibility standard is to require a plaintiff to allege sufficient facts to state a claim; it is not a license for a plaintiff to conduct a fishing expedition in an attempt to obtain discovery that might support his allegations.” (citation omitted)). *17 For these reasons, Murphy's eighth cause of action for defamation, defamation per se, slander, and libel is dismissed as against the Sheriff Defendants and Edwards, and remains against the non-moving defendants: Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka. G. Conspiracy to Defame Murphy's ninth cause of action is for conspiracy to defame against Onondaga County, the Onondaga County Sheriff's Department, the Sheriff Defendants, Hummel, Fitzpatrick, Carden, Luczka, Edwards, and Westcott. (Am. Compl. at 73.) “In order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement.” Fairstein v. Netflix, Inc., No. 20-cv-8042, 2021 WL 3501527, at *23 (S.D.N.Y. Aug. 9, 2021) (emphasis added) (quoting Perez v. Lopez, 948 N.Y.S.2d 312, 314 (2d Dep't 2012)). Where a plaintiff fails to adequately plead “facts sufficient to demonstrate the underlying tort of defamation” their claims for civil conspiracy to commit defamation must also be dismissed. See Sparrow Fund Mgmt. LP v. MiMedx Group, Inc., No. 18 Civ. 4921, 2019 WL 1434719, at *12 (S.D.N.Y. Mar. 31, 2019); see also Nunes v. Cable News Network, Inc., 520 F. Supp. 3d 549, 561 (S.D.N.Y. Feb. 19, 2021) (“In light of [p]laintiff's failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.”). Because Murphy's defamation claims against the Sheriff Defendants and Edwards are dismissed, his ninth cause of action for conspiracy to defame as against these same defendants and Westcott is likewise dismissed. See Sparrow, 2019 WL 1434719, at *12. His defamation claims remain against the non-moving parties: Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka. H. Intentional Infliction of Emotional Distress Murphy's tenth cause of action alleges intentional infliction of emotional distress (IIED) against Onondaga County, the Onondaga County Sheriff's Department, the Sheriff Defendants, and Hummel. (Am. Compl. at 77.) The Sheriff Defendants argue that this claim must be dismissed for several reasons, (Dkt. No. 88, Attach. 1 at 21-23; Dkt. No. 90, Attach. 1 at 21-23; Dkt. No. 92, Attach. 1 at 22-23; Dkt. No. 94, Attach. 1 at 22-23; Dkt. No. 96, Attach. 1 at 22-23; Dkt. No. 98, Attach. 1 at 28-20; Dkt. No. 100, Attach. 1 at 22-23; Dkt. No. 102, Attach. 1 at 22-24), but most notably here, because Murphy's allegations do not meet the high standard required for a claim of intentional affliction of emotional distress, (Dkt. No. 88, Attach. 1 at 22-23; Dkt. No. 90, Attach. 1 at 22-23; Dkt. No. 92, Attach. 1 at 22-23; Dkt. No. 94, Attach. 1 at 22-23; Dkt. No. 96, Attach. 1 at Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 152 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 22-23; Dkt. No. 96, Attach. 1 at 22-23; Dkt. No. 98, Attach. 1 at 19-20; Dkt. No. 100, Attach. 1 at 22-23; Dkt. No. 102, Attach. 1 at 23-24). Onondaga County, the Onondaga County Sheriff's Department, and Hummel do not move to dismiss. With respect to Conway, Dickinson, and Cassalia, Murphy appears to concede this point, (Dkt. No. 116 at 23-24 (“Plaintiff's proposed amended complaint alleviates this inadvertent error ... [a]ccordingly, plaintiff will move for an amended complaint to alleviate this inadvertent error and place this extreme conduct before the Court in th[i]s ... cause[ ] of action.”); see Dkt. No. 117 at 19-20; Dkt. No. 118 at 19-20), and argues, that with respect Blumer, Peluso, Gratien, Anderson, and Ciciarelli, the standard has been met, (Dkt. No. 124 at 16-17; Dkt. No. 125 at 17-18; Dkt. No. 126 at 16-17). *18 IIED is a “highly disfavored tort under New York law.... to be invoked only as a last resort.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014) (internal quotation marks and citations omitted). Under New York law, IIED has four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and the injury; and (iv) severe emotional distress.” Chanko v. Am. Broad. Cos., 27 N.Y.3d 46, 56 (2016) (citation omitted). As to the first element, the “conduct [must have] been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (internal quotation marks and citation omitted). This standard is “rigorous[ ] and difficult to satisfy.” Id. Establishing extreme and outrageous conduct “is difficult, even at the pleadings stage.” Ifill v. United Parcel Serv., No. 04Civ.5963, 2005 WL 736151, at *6 (S.D.N.Y. Mar. 29, 2005) (quoting Conboy v. AT & T Corp., 84 F. Supp. 2d 492, 507 (S.D.N.Y. 2000)). Indeed, “of the IIED claims considered by [the New York Court of Appeals], ‘every one has failed because the alleged conduct was not sufficiently outrageous.’ ” Taylor v. N.Y.C. Fresh Market, No. 19 CV 4797, 2020 WL 10356230, at *8 (E.D.N.Y. Dec. 23, 2020) (quoting Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122 (1993)). Under the IIED heading in the amended complaint, Murphy alleges that he “was not allowed to appear in public in uniform,” “was not allowed to supervise patrol officers,” “was not allowed to do police work,” “was required to sit at a desk all day, with no work, while others looked on,” “was wrongly passed over for promotion in favor of an officer with less experience,” and that his “wife was assaulted without the [Sheriff's] Department so much as instituting an investigation.” (Am. Compl. ¶ 391; see id. ¶ 245.) These allegations do not meet the standard for IIED. See Kolchinsky v. Moody's Corp., No. 10 Civ. 6840, 2012 WL 639162, at *1-3, 7 (S.D.N.Y. Feb. 28, 2012) (holding that, where a plaintiff alleged, because of his role as a whistle blower, he was barred from meetings, demoted, had his responsibilities and salary decreased, defamed, and ultimately suspended from the company, that these “allegations do not have a hint” of the required extreme and outrageous conduct); see also Ifill v. United Parcel Serv., No. 04Civ.5963, 2005 WL 736151, at *1-2, 7 (S.D.N.Y. Mar. 29, 2005) (finding that allegations that employer harassed, discriminated, demoted, and retaliated against plaintiff were insufficient to state IIED). For this reason, Murphy's tenth cause of action for IIED is dismissed as against the Sheriff Defendants. This cause of action remains against the non-moving defendants: Onondaga County, the Onondaga County Sheriff's Department, and Hummel. I. Negligent Infliction of Emotional Distress Murphy's eleventh cause of action is for negligent infliction of emotional distress (NIED) against Onondaga County, the Onondaga County Sheriff's Department, the Sheriff Defendants, Hummel, Fitzpatrick, Carden, and Luczka. (Am. Compl. at 79.) The Sheriff Defendants argue that this cause of action must be dismissed against them because none of the Sheriff Defendants breached a duty owed to Murphy which resulted in a threat or endangerment to his physical safety. (Dkt. No. 88, Attach. 1 at 24-25; Dkt. No. 90, Attach. 1 at 24-25; Dkt. No. 92, Attach. 1 at 24-25; Dkt. No. 94, Attach. 1 at 24-25; Dkt. No. 96, Attach. 1 at 24; Dkt. No. 98, Attach. at 21; Dkt. No. 100, Attach. 1 at 24-25; Dkt. No. 102, Attach. 1 at 25.) Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka do not move to dismiss. With respect to Conway, Dickinson, and Cassalia, Murphy appears to concede this point. (Dkt. No. 116 at 23-24; Dkt. No. 117 at 19-20; Dkt. No. 118 at 19-20), and completely fails to address Blumer, Peluso, Gratien, Anderson, and Ciciarelli's arguments regarding NIED. (Dkt. No. 124 at 16-17; Dkt. No. 125 at 17-18; Dkt. No. 126 at 16-17.) *19 Under New York law, a plaintiff may establish a claim for NIED in two ways, under the “bystander theory” or “direct Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 153 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 duty theory.” See Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996). A plaintiff may recover “under the ‘bystander’ theory when: (1) [he] is threatened with physical harm as a result of defendant's negligence; and (2) consequently [he] suffers emotional injury from witnessing the death or serious bodily injury of a member of [his] immediate family.” Id. (citation omitted); see Quinn v. U.S., 946 F. Supp. 2d 267, 278 (N.D.N.Y. 2013). “A plaintiff may recover under a direct duty theory when [he] suffers an emotional injury from defendant's breach of a duty which unreasonably endangered [his] own physical safety.” Quinn, 946 F. Supp. 2d at 278 (internal quotation marks and citation omitted); see Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996). Importantly, “[t]he duty in such cases must be specific to the plaintiff, and not some amorphous, free-floating duty to society.” See Mortise, 102 F.3d at 696 (citation omitted); see also Burroughs v. Mitchell, 325 F. Supp. 3d 249, 285 (N.D.N.Y. 2018). Murphy appears to seek recovery under a direct duty theory. (Am. Compl. ¶¶ 393-99.) However, Murphy does not plead that any of the Sheriff Defendants owned him a specific duty, but rather that “[d]efendants had a duty not only to avoid such conduct but, to conduct themselves in a civilized and professional manner.” (Am. Compl. ¶ 395.) Because Murphy has failed to plead a violation of a specific duty owed to him to him by any of the defendants, his eleventh cause of action for NIED is dismissed as against the Sheriff Defendants. See Burroughs, 325 F. Supp. 3d at 285; see also Leibenguth v. U.S., No. 08-CV-6008, 2009 WL 3165846, at *4 (W.D.N.Y. Sept. 29, 2009). This claim remains against the non-moving defendants: Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka. J. Murphy's Other Motions Although it is admittedly not entirely clear to the court the full extent of the relief sought by Murphy in his motion informing the court of alleged “improprieties” by defendants, (Dkt. No. 156), and his August 30, 2021, letter motion, (Dkt. No. 159), to the extent they seek relief inconsistent with the above, they are denied. V. Conclusion WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Conway's motion for judgment on the pleadings (Dkt. No. 88) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to the following claims, which are DISMISSED, Murphy's RICO claims; § 1985 conspiracy claim; retaliation claim pursuant to Article 1, Section 8 of the New York State Constitution; § 1983 equal protection claim; defamation claims; conspiracy to defame claim; IIED; and NIED; and DENIED in all other respects; and it is further ORDERED that Blumer's motion for judgment on the pleadings (Dkt. No. 90) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to the following claims, which are DISMISSED, Murphy's RICO claims; § 1985 conspiracy claim; retaliation claim pursuant to Article 1, Section 8 of the New York State Constitution; § 1983 equal protection claim; defamation claims; conspiracy to defame claim; IIED; and NIED; and DENIED in all other respects; and it is further ORDERED that Peluso's motion for judgment on the pleadings (Dkt. No. 92) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to the following claims, which are DISMISSED, Murphy's RICO claims; § 1985 conspiracy claim; retaliation claim pursuant to Article 1, Section 8 of the New York State Constitution; § 1983 equal protection claim; defamation claims; conspiracy to defame claim; IIED; and NIED; and DENIED in all other respects; and it is further ORDERED that Gratien's motion for judgment on the pleadings (Dkt. No. 94) is GRANTED IN PART and DENIED IN PART as follows: *20 GRANTED as to the following claims, which are DISMISSED, Murphy's RICO claims; § 1985 conspiracy claim; retaliation claim pursuant to Article 1, Section 8 of the New York State Constitution; § 1983 equal protection claim; defamation claims; conspiracy to defame claim; IIED; and NIED; and DENIED in all other respects; and it is further Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 154 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 ORDERED that Anderson's motion for judgment on the pleadings (Dkt. No. 96) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to the following claims, which are DISMISSED, Murphy's RICO claims; § 1985 conspiracy claim; retaliation claim pursuant to Article 1, Section 8 of the New York State Constitution; § 1983 equal protection claim; defamation claims; conspiracy to defame claim; IIED; and NIED; and DENIED in all other respects; and it is further ORDERED that Cassalia's motion for judgment on the pleadings (Dkt. No. 98) is GRANTED; and it is further ORDERED that Ciciarelli's motion for judgment on the pleadings (Dkt. No. 100) is GRANTED; and it is further ORDERED that Dickinson's motion for judgment on the pleadings (Dkt. No. 102) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to the following claims, which are DISMISSED, Murphy's RICO claims; § 1985 conspiracy claim; retaliation claim pursuant to Article 1, Section 8 of the New York State Constitution; § 1983 equal protection claim; defamation claims; conspiracy to defame claim; IIED; and NIED; and DENIED in all other respects; and it is further ORDERED that the following claims remain: Murphy's third and fourth causes of action for § 1983 retaliation against Onondaga County, the Onondaga County Sheriff's Department, Conway, Dickinson, Blumer, Anderson, Peluso, Gratien, Hummel, Fitzpatrick, Carden, Luczka; Murphy's eighth cause of action for defamation, defamation per se, libel, and slander against Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka; Murphy's ninth cause of action for conspiracy to commit defamation, defamation per se, libel, and slander against Onondaga County, the Onodaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka; Murphy's tenth cause of action for IIED against Onondaga County, the Onondaga County Sheriff's Department, and Hummel; and, Murphy's eleventh cause of action for NIED against Onondaga County, the Onondaga County Sheriff's Department, Hummel, Fitzpatrick, Carden, and Luczka; and it is further ORDERED that Murphy's motion to amend the amended complaint (Dkt. No. 123) is DENIED as moot; and it is further ORDERED that Edwards and Westcott's motion to dismiss (Dkt. No. 143) is GRANTED; and it is further ORDERED that Edwards and Westcott's motion regarding Murphy's proposed amended complaint (Dkt. No. 144) is GRANTED IN PART and DENIED IN PART as follows: GRANTED to the extent it sought denial of Murphy's motion to amend, and DENIED in all other respects; and it is further ORDERED that the Sheriff Defendants’ motion requesting guidance in responding to the amended RICO statement (Dkt. No. 155) is DENIED as moot; and it is further ORDERED that the following defendants are dismissed: Cassalia, Ciciarelli, Cambareri, Edwards, and Westcott; and it is further ORDERED that Murphy's motion informing the court of alleged “improprieties” by defendants, requesting that the amended RICO statement be accepted as timely, and seeking to file a further amended complaint (Dkt. No. 156) is DENIED; and it is further *21 ORDERED that Murphy's motion to amend the RICO statement, (Dkt. No. 157) is DENIED; and it is further ORDERED that Murphy's August 30, 2021, letter motion (Dkt. No. 159), to the extent it seeks relief from the court, is DENIED; and it is further ORDERED that Murphy's motion to amend, (Dkt. No. 170) is DENIED; and it is further ORDERED that the parties shall contact Magistrate Judge Christian F. Hummel to schedule further proceedings; and it is further ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 155 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2022 WL 819281, RICO Bus.Disp.Guide 13,617 Footnotes 1 Plaintiff refers to Dickinson as both “Dickinson” and “Dickenson,” the court will refer to this defendant as Dickinson. 2 For the sake of clarity, Dkt. No. 60, is deemed the operative pleading. On June 7, 2019, Murphy filed a motion to amend the complaint. (Dkt. No. 50.) The motion was unopposed, and the clerk of the court was directed to file Exhibit A to the motion, (Dkt. No. 50, Attach. 1), as the amended complaint, (Dkt. No. 53). On July 1, 2019, the amended complaint was filed. (Dkt. No. 56.) However, on July, 2, 2019, the amended complaint was filed again, by Murphy, with the only apparent change being the inclusion of counsel's name. (Dkt. No. 58.) Then again the amended complaint was filed on July 19, 2019, by Murphy, this time attaching previously omitted summonses. (Dkt. No. 60.) To the extent defendants address Dkt. No. 56, 58, and/or 60 in their submissions, the court will construe them as against Dkt. No. 60. 3 The facts are drawn from Murphy's amended complaint, (Dkt. No. 60), and presented in the light most favorable to him. 4 The amended complaint contains two paragraphs numbered “158” and two numbers “159.” To the extent these paragraph are cited, they will be denoted as “158a” and “158b,” and “159a” and “159b.” 5 On August 8, 2021, Murphy filed a motion informing the court of alleged “improprieties” by defendants, requesting that the amended RICO statement be accepted as timely, and seeking to file a further amended complaint. (Dkt. No. 156.) To the extent this motion sought leave to amend, it is denied as moot for the same reasons. Further, Edwards and Westcotts’ motion regarding Murphy's proposed amended complaint, (Dkt. No. 144), is granted, to the extent it sought denial of Murphy's motion to amend, and denied in all other respects. 6 For example, Murphy's amended complaint contains multiple errors in paragraph numbering (e.g. subsequent paragraphs being numbered as follows: 157, 158, 159, 158, 159, 160; 266, 195, 267; and omitting paragraph number 248). Further, the amended complaint spells defendant's names in alternating fashions (e.g. Dickinson and Dickenson; Blumer and Bloomer). In his response to Ciciarelli's motion for judgment on the pleadings, (Dkt. No. 100), Murphy refers to defendant Conway rather than Ciciarelli, (Dkt. No. 126 at 5). Many of Murphy's responses to the Sheriff Defendants’ Rule 12(c) motions contained errors in the table of contents, including omitting or repeating Roman numerals (e.g., subsequent sections being enumerated as follows: I., III., V., VI.; and repeating the numeral VII.). (See, e.g., Dkt. No. 124.) Murphy submitted his motion to amend without a cover page and unsigned. (Dkt. No. 170.) In Murphy's response to Cassalia's motion for judgment on the pleadings, (Dkt. No. 98), Murphy responds to a statute of limitations argument that was not made by Cassalia, (Dkt. No. 118 at 17-18.) Finally, in his various responses to the Sheriff Defendants’ Rule 12(c) motions, Murphy completely fails to address arguments made by these defendants. (See, e.g., Dkt. No. 125 (failing to address arguments regarding his § 1983 retaliation claims).) While the court can tolerate the occasional inadvertent typographical error, Murphy's errors are numerous, and occur after his counsel Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 156 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 has requested a substantial amount of extension of filing deadlines. (Dkt. No. 106; Dkt. No. 109; Dkt. No. 114; Dkt. No. 119; Dkt. No. 146.) 7 Cambareri is not listed as a defendant in any of the causes of action headings in the amended complaint, but is listed as a defendant in the paragraphs following Murphy's first cause of action, (Am. Compl. ¶¶ 250-53), therefore the court will construe Cambareri as a defendant to Murphy's first cause of action only. 8 Unless otherwise noted, for all of Murphy's causes of action, the individual defendants are sued in their individual and official capacities. 9 See supra note 2. 10 While the amended complaint refers to an individual named “Bloomer,” out of an abundance of caution, the court will assume this was an error by Murphy, and assume he intended to refer to defendant Blumer. 11 Murphy also pleads numerous “lesser” actions, which, when considered together would “deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Zelnik, 464 F.3d at 225-26; see Philips v. Bowan, 278 F.3d 103, 109 (2d Cir. 2002). For example, Murphy alleges he was forbidden from giving orders to subordinates, forbidden from using a patrol car or from displaying his uniform in public, “subject[ed] to threatening and abusive behavior” by others in the department, had his overtime opportunities reduced, was “ordered to undertake menial tasks under circumstances that were deliberately chosen to cause him physical discomfort and agitation,” was arbitrarily transferred, and was “subjected to public ridicule and embarrassment.” (Am. Compl. ¶ 245.) 12 Further, with respect to Peluso, the amended complaint also alleges that shortly after raising concerns to Peluso that a complainant was not properly “attent[ed to] by [the Sheriff's Department] ... due to [the complainant's] ethnic background and her sex,” Murphy was aggressively confronted by Peluso, who later filed a “vacuous” internal complaint against Murphy which was “specifically intended to prevent ... Murphy from being promoted.” (Am. Compl. ¶¶ 44-55, 63-66, 101.) This further demonstrates a causal connection between Murphy's speech and the adverse employment actions carried out by Peluso. See Shanks, 653 F. Supp. 2d at 167. 13 To the extent Murphy makes this argument with respect to his other causes of action, it is similarly unpersuasive. (See, e.g., Dkt. No. 116 at 21, 23-24; Dkt. No. 117 at 14, 19-20; Dkt. No. 118 at 14, 19-20; Dkt. No. 124 at 15; Dkt. 125 at 15-16; Dkt. No. 126 at 15.) 14 Murphy's argument that he is a member of a “class of one,” (see, e.g., Dkt. No. 125 at 13), is inapplicable here. See infra Part IV.E.; see also Volunteer Fire Ass'n of Tappan, Inc. v. Cty. of Rockland, No. 09-CV-4622, 2010 WL 4968247, at *8 n.13 (S.D.N.Y. Nov. 24, 2010) (“A plaintiff alleging a Section 1985 violation may not proceed under a ‘class of one’ theory.” (citation omitted)). 15 Because Murphy is represented by counsel, his amended complaint is not entitled to the special solicitude afforded to pro se pleadings. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). Therefore, the court has not considered whether the amended complaint states a claim pursuant to the first clause of § 1985(2), which requires that a plaintiff plead: “(1) a conspiracy between two or more persons, (2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter, which (3) results in injury to the plaintiff,” Greene v. City of New York, No. 08-cv-00243, 2017 WL 1030707, at *31 (E.D.N.Y. Mar. 15, 2017) (quoting Chalal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984)), and which does not require a showing of any class-based animus. See Kush v. Rutledge, 460 U.S. 719, 726 (1983); c.f. Langton v. Town of Chester, No. 14 Civ. 9474, 2017 WL 6988708, at *6 (S.D.N.Y. Sept. 26, 2017) (citation omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 157 of 240
Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022) RICO Bus.Disp.Guide 13,617 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 16 The Sheriff Defendants’ argument that Murphy has failed to state a claim for defamation appears to be premised on the more stringent pleading requirements of N.Y. C.P.L.R. § 3016(a), which requires that “the particular words complained of shall be set forth in the complaint.” (See, e.g., Dkt. No. 88, Attach. 1 at 19.) While the amended complaint does not meet this standard, “state procedural rules do not apply to federal courts ... and federal courts instead apply the pleading standards set forth in Rule 8 of the Federal Rules of Civil Procedure.” Nouinou v. Smith, No. 20-CV-8682, 2021 WL 4340952, at *5 (S.D.N.Y. Sept. 22, 2021) (citing Treistman v. Wacks, No. 12-CV-1897, 2017 WL 639322, at *4 (N.D.N.Y. 2017)); but see Nichols v. BAC Home Loans Servicing LP, No. 1:13-CV-00224, 2013 WL 5723072, at *12 (N.D.N.Y. Oct. 18, 2013) (applying the heightened pleading standard of C.P.L.R. 3016 and requiring the plaintiff to plead “the particular words giving rise to his [defamation] claim”). However, as explained herein, Murphy's cause of action fails under either pleading standard. 17 The court will not discuss statements attributable to any of the defendants that are clearly non-defamatory, such as: “Blumer indicated that she would address the matter with the deputy,” (Am. Compl. ¶ 90), “Peluso ... stated ... that when he ‘sixes’ a complaint, it stays ‘sixed,’ ” (id. ¶ 63), or “Ciciarelli informed Murphy that Gratien had not recorded the fact of the illegal search and seizure in his Duty Commander log for that night,” (id. ¶ 110). See Premier Med. Sys., LLC v. NeuroLogica Corp., No. 1:21-cv-1337, 2022 WL 603999, at *12 (S.D.N.Y. Feb. 28, 2022) (finding that a defamatory statement must “expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and ... deprive him of ... friendly intercourse in society”) (citation omitted). 18 Murphy also alleges, with respect to Dickinson, that, after Murphy brought this suit, Dickinson made “had several improper, unsupported and baseless referrals to the Onondaga County Sheriff's Office Internal Affairs Office.” (Am. Compl. ¶ 229.) Murphy does not provide the content of these referrals, however, and, thus, this allegation does not allow him to avoid dismissal as to Dickinson. See Hillary, 2015 WL 902930, at *11 (holding that, for a defamation claim to survive a motion to dismiss, a plaintiff must “identify ... the allegedly defamatory statements” (citation omitted)). 19 Murphy lists five ambiguous statements within his defamation cause of action, none of which are attributed to a particular defendant. (Am. Compl. ¶ 360.) To the extent these are alleged as against Cassalia, Ciciarelli, or any of the defendants, they do not make out a claim of defamation. See Hillary, 2015 WL 902930, at *11 (for a defamation claim to survive a motion to dismiss a plaintiff must “identify ... the person who made the statements” (citation omitted)). 20 For the reasons noted above, Murphy's defamation claims against Conway are dismissed, regardless of this argument. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 158 of 240
Myers v. Wollowitz, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 1995 WL 236245 Only the Westlaw citation is currently available. United States District Court, N.D. New York. James N. MYERS, Jr., Plaintiff, v. Heather WOLLOWITZ, Attorney, Defendant. No. 95–CV–0272 (TJM) (RWS). | April 10, 1995. Attorneys and Law Firms James N. Myers, Jr., Troy, NY, pro se. DECISION AND ORDER McAVOY, Chief Judge. I. Background *1 Presently before this Court is the above-captioned plaintiff's application to proceed in forma pauperis and civil rights complaint. Plaintiff has not paid the partial filing fee required to maintain this action. For the reasons stated below, plaintiff's complaint is dismissed pursuant to 28 U.S.C. § 1915(d) and Local Rule 5.4(a) of the General Rules of this Court as without arguable basis in law. In his pro se complaint, plaintiff seems to claim that plaintiff was represented by defendant Wollowitz, a public defender for the County of Rensselaer, in a County Court proceeding. Plaintiff alleges that after a criminal proceeding in that Court, plaintiff was “sentenced to a illegal sentence.” Id. at 2. Plaintiff contends that due to the ineffective assistance of his counsel, defendant Wollowitz, his constitutional rights were violated. For a more complete statement of plaintiff's claims, reference is made to the entire complaint filed herein. II. Discussion Consideration of whether a pro se plaintiff should be permitted to proceed in forma pauperis is a two-step process. First, the court must determine whether the plaintiff's economic status warrants waiver of fees and costs under 28 U.S.C. § 1915(a). If the plaintiff qualifies by economic status, the court must then consider whether the cause of action stated in the complaint is frivolous or malicious. Moreman v. Douglas, 848 F.Supp. 332, 333 (N.D.N.Y.1994) (Scullin, J.); Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir.1983) (per curiam). In the present case, upon review of the plaintiff's inmate account statements, the Court has determined that plaintiff's financial status qualifies him to file or “commence” this action in forma pauperis. 28 U.S.C. § 1915(a). Turning to the second inquiry, a court may “dismiss the proceeding under 28 U.S.C. § 1915(d) if the court thereafter determines that ... the action is frivolous or malicious.” Moreman, 848 F.Supp. at 333 (citation omitted). In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Although the court has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983), there is a responsibility on the court to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915(d) is appropriate to prevent abuses of the process of the court, Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir.1974), as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327. See generally Moreman, 848 F.Supp. at 334. *2 42 U.S.C. § 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights. See, e.g., Von Ritter v. Heald, 91–CV–612, 1994 WL 688306, *3, 1994 U.S.Dist. LEXIS 17698, *8–9 (N.D.N.Y. Nov. 14, 1994) (McAvoy, C.J.). A party may not be held liable under this section unless it can be established that the defendant has acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3rd 625, 628 (2d Cir.1994) (noting state action requirement under § 1983); Wise v. Battistoni, 92–Civ–4288, 1992 WL 380914, *1, 1992 U.S.Dist. LEXIS 18864, *2–3 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). In the present case, the sole defendant named by plaintiff is the Rensselaer County public defender who apparently represented plaintiff in the criminal proceeding discussed in Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 159 of 240
Myers v. Wollowitz, Not Reported in F.Supp. (1995) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 his complaint. See Complaint at 2. However, “[i]t is well settled that an attorney's representation of a party to a court proceeding does not satisfy the Section 1983 requirement that the defendant is alleged to have acted under color of state law....” Wise, 1992 WL 380914 at *1, 1992 U.S.Dist. LEXIS 18864 at *2–3; see also D'Ottavio v. Depetris, 91–Civ–6133, 1991 WL 206278, *1, 1991 U.S.Dist. LEXIS 13526, *1–2 (S.D.N.Y. Sept. 26, 1991). Since the plaintiff has not alleged any state action with respect to the Section 1983 claim presently before the Court, plaintiff's complaint, as presented to this Court, cannot be supported by any arguable basis in law and must therefore be dismissed pursuant to 28 U.S.C. § 1915(d). Neitzke, 490 U.S. at 328. Accordingly, it is hereby ORDERED, that leave to proceed or prosecute this action in forma pauperis is denied, and it is further ORDERED, that this action is dismissed pursuant to 28 U.S.C. § 1915(d) and Local Rule 5.4(a) of the General Rules of this Court as lacking any arguable basis in law, and it is further ORDERED, that the Clerk serve a copy of this Order on the plaintiff by regular mail. I further certify that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a). IT IS SO ORDERED. All Citations Not Reported in F.Supp., 1995 WL 236245 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 160 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 895035 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Julius PHILLIPS, Plaintiff, v. SCHENECTADY CHILD SUPPORT UNITE, et al., Defendants. No. 1:24-CV-853 (BKS/PJE) | Signed March 24, 2025 Attorneys and Law Firms Julius Phillips, 800 State Street, Apt. 105, Schenectady, New York 12307, Plaintiff pro se. REPORT-RECOMMENDATION AND ORDER 1 PAUL J. EVANGELISTA, UNITED STATES MAGISTRATE JUDGE I. In Forma Pauperis *1 Plaintiff pro se Julius Phillips (“plaintiff”) commenced this action on July 5, 2024, by filing a complaint. See Dkt. No. 1. In lieu of paying this Court's filing fee, he submitted an application for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP application and determines that he financially qualifies to proceed IFP. 2 Pursuant to this review, this Court must now assess the merits of plaintiff's complaint pursuant to 28 U.S.C. § 1915. 3 II. Initial Review A. Legal Standard 28 U.S.C. § 1915 directs 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). 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 omitted). As the Second Circuit stated, [t]here are many cases in which we have said that a pro se litigant is entitled to special solicitude, that a pro se litigant's submissions must be construed liberally, and that such submissions must be read to raise the strongest arguments that they suggest. At the same time, 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 .... 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) (“On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obligated to construe his pleadings liberally.”) (internal quotation marks and citations omitted). Thus, the Court is not required to accept unsupported allegations that are devoid of sufficient facts or claims. 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). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 161 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“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.”). *2 “The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits, because pro se pleadings still must comply with ... the Federal Rules of Civil Procedure. 4 ” 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)). 5 Specifically, Rule 8 provides that a pleading which sets forth a claim for relief shall contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “The purpose ... is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation marks and citations omitted). Rule 8 also requires the pleading to include “(1) a short and plain statement of the grounds for the court's jurisdiction ... and (3) a demand for the relief sought ....” FED. R. CIV. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make clear that each allegation contained in the pleading “must be simple, concise, and direct.” FED. R. CIV. P. 8(d). Further, Rule 10 provides in pertinent part that: [a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense. FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55 (internal quotation marks and citations omitted). 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 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). B. Plaintiff's Complaint 6 On a civil complaint form, plaintiff checks the boxes that indicate that this Court has subject matter jurisdiction pursuant to federal question and diversity of citizenship jurisdiction. See Dkt. No. 1 at 3. Plaintiff states that his Fourth, Fifth, Seventh, and Fourteenth Amendment rights have been violated because “[c]hild support say they take $83 weekly but they don't they take $124.50 weekly and it is still be [sic] deducted from my check. Child support also said I'm paying for two kids when I only had one child with the defendant.” Id. at 4. Plaintiff alleges that the “fraud agency called child support ... is frauding me stealing from me and ... violated my civil rights my constitutional rights and my New York State rights.” Dkt. No. 1-1 at 1. “[T]hey had no case no contract or bond with my signature no consent form with my signature no injured party and they still persist on stealing my hard earned money.” Id. “I never [p]ut my signature on anything but the agreement for the video conference that's all if they say my signature is on anything else it is fraudulent I never signed anything or never gave the consent for anything....” Id. at 2. “I never volunteered or gave consent to join the child support program and I know that I cant be forced into no contractual contract thats what it looks like Child Support is doing to me.” Dkt. No. 1-2 at 1. “They say I owe over $6000 dollars so that's over $20 to where the magistrate called for a trial and never had the jury I asked for....” Dkt. No. 1-1 at 6. “I am being sued for a debt that is not mines [sic].” Dkt. No. 1-2 at 1. Plaintiff claims that he requested “department record[s] related to the debt” but “never got it.” Dkt. No. 1-1 at 1. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 162 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 *3 Plaintiff contends that “child support agreements are equivalent to interstate contracts” and violate the Federal Consumer Credit Protection Act because they act as an “excessive wage garnishment.” Dkt. No. 1-1 at 2-3 (citing 15 U.S.C. § 1167(a)). He states that he is a “victim of forced labor” and “feel[s] that way is because” if he “can't work or give them payment they (child support) will suspend my [driver's] license which is not legal they (child support) can't do that they would throw me in jail for how ever long ....” Id. at 6-7. Plaintiff summarized his complaint by stating: I ask for this case #66054k1 to please be appealed and dropped under all this wrong doing they doing. And I really want to know how or what the magistrate ruling was in the fact- finding hearing if I neglected my son for 12 months no contact and no plan for the future of my son or did I abandoned [sic] my son for 6 months I don't see how he would come up with this ruling when the Court appointed lawyer told for m[e] so [sic] told the Court and the magistrate that I was in his life and we talk. Dkt. No. 1-1 at 8. “I would like to ... start a § 1983 law suit [sic] and a fraud lawsuit under ... for fraudulent filings of information returns [sic] against all involved in the list I wrote down.” Id. Plaintiff requests the Court to award damages of $5,000,000.00, and alternatively, $10,000,000.00 for “the violation [of his] right [sic] the stress the blood and tears [of his child's mother] hold [his] child [sic] not letting [plaintiff] see him ... and the money back that's been stolen from [him].” Dkt. No. 1 at 4-5; Dkt. No. 1-1 at 8. C. Analysis Liberally construing plaintiff's complaint, he seeks to bring claims under 42 U.S.C. § 1983 7 against the Schenectady County Child Support Unit; the Division of Child Support Enforcement Newport News District Office; the Schenectady County Family Court; Bruce J. Wagner, Support Magistrate; Dylan Reilly, Deputy County Attorney; and Rebecca Bauscher, child attorney. 8 , 9 See generally Dkt. No. 1; Dkt. No. 1-1 at 1, 8-9; Dkt. No. 1-3, see also Triestman, 470 F.3d at 475. (“This policy of liberally construing pro se submissions is driven by the understanding that ‘[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.’ ”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). 1. Rooker-Feldman Doctrine *4 “Under the Rooker-Feldman doctrine, a federal district court lacks authority to review a final state court order or judgment where a litigant seeks relief that invites the federal district court to reject or overturn such a final state court order or judgment.” Gerken v. Gordon, No. 1:24-CV-00435 (MAD/CFH), 2024 WL 4608307, at *4 (N.D.N.Y. Oct. 29, 2024), report and recommendation adopted, No. 1:24- CV-435 (MAD/CFH), 2024 WL 5001402 (N.D.N.Y. Dec. 6, 2024) (quoting Porter v. Nasci, No. 5:24-CV-0033 (GTS/ TWD), 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), report and recommendation adopted, 2024 WL 3158645 (N.D.N.Y. June 25, 2024)); see Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (“The Rooker- Feldman doctrine bars federal district courts from hearing cases that in effect are appeals from state court judgments, because the Supreme Court is the only federal court with jurisdiction over such cases.”) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)). “This includes when a litigant seeks relief that invites a federal district court to reject or overturn a final decision of a New York Family Court as to a child support dispute brought in that state court.” Gerken, 2024 WL 4608307, at *4 (quoting Sims v. Kaufman, No. 23-CV-7927 (LTS), 2024 WL 757338, at *4 (S.D.N.Y. Feb. 14, 2024)) (citing Legister v. Radowitz, No. 1:20-CV-9330 (LLS), 2020 WL 7405672, at *3 (S.D.N.Y. Dec. 16, 2020) (“A plaintiff's challenge in a federal district court to the validity or enforcement of [a] child support order itself is barred by the Rooker-Feldman doctrine.”)). The Rooker-Feldman doctrine applies if: “(1) the plaintiff lost in state court; (2) the plaintiff complains of injuries caused by the state court judgment; (3) the plaintiff requests the district court to review and reject the state court judgment; and (4) the state court judgment was rendered before the proceedings Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 163 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 commenced in the district court.” Gerken, 2024 WL 4608307, at *4 (quoting DeMeo v. Kean, 754 F. Supp. 2d 435, 448 (N.D.N.Y. 2010)) (citing V.S. v. Muhammad, 595 F.3d 426, 430 (2d Cir. 2010)); see also Fernandez v. Turetsky, No. 12- CV-4092 (SLT/MDG), 2014 WL 5823116, at *4 (E.D.N.Y. Nov. 7, 2014) (collecting cases and noting that “[c]ourts have repeatedly invoked the [Rooker-Feldman] doctrine in cases ... in which plaintiffs challenge family court decrees setting child support arrears”), aff'd, 645 F. App'x 103 (2d Cir. 2016) (summary order). Here, although many of plaintiff's assertions are unclear, liberally read, plaintiff's complaint asks the Court to review and reverse a child custody and child support order, invalidate a judgment for child support arrears, reimburse monies that were garnished against his wages, and order the Schenectady County Family Court to provide him with information and documentation that he previously requested. See generally Dkt. No. 1, Dkt. No. 1-1, Dkt. No. 1-2. Plaintiff appears to have “lost in state court,” complains of injuries caused by a state court judgment, and asks the Court to invalidate a state court's order regarding child support payments and a state court's judgment for child support arrears that were entered before the commencement of this proceeding. See generally Dkt. No. 1-1, Dkt. No. 1-2, Dkt. No. 1-12. “Under the Rooker-Feldman doctrine, this Court may not do so.” Gerken, 2024 WL 4608307, at *4 (quoting Fernandez, 2014 WL 5823116, at *4); see, e.g., Phillips v. Wagner, No. 1:22- CV-0833 (DNH/ML), 2022 WL 17406092, at *3 (N.D.N.Y. Nov. 4, 2022) 10 (recommending dismissal for lack of subject matter jurisdiction because “[the p]laintiff's claims, while not entirely clear, seem to challenge an order by the Family Court, issued before [the p]laintiff filed this action, in which the Family Court determined that he owes child support .... Thus, [the p]laintiff's claims for relief are barred by the Rooker-Feldman doctrine ...”), report and recommendation adopted, 2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022), appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir. Apr. 25, 2023); Walker v. O'Connor, No. 1:22-CV-581 (DNH/ TWD), 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022), report and recommendation adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022) (recommending dismissal of the plaintiff's complaint where it “appears [the p]laintiff ‘lost’ in New York State Family Court, complains of injuries caused by that court's judgments, and asks this Court to invalidate those judgments on the grounds that they violated her due process rights.”). *5 “[T]o the extent plaintiff could try to contend that his claims are reviewable because they relate to the alleged improper enforcement of the Family Court judgment rather than the judgment itself ... Rooker-Feldman also bars such claims because the enforcement is inextricably intertwined with the state court judgment.” Sorenson v. Suffolk Cnty. Child Support Enf't Bureau, No. 07-CV-03755 (JFB/AKT), 2009 WL 580426, at *7 (E.D.N.Y. Mar. 5, 2009) (citations omitted); Fernandez, 2014 WL 5823116, at *4 (same); see also Bowen v. Gordon, No. 1:24-CV-114 (LEK/DJS), 2024 WL 2053155, at *2 (N.D.N.Y. Feb. 20, 2024), report and recommendation adopted, No. 1:24-CV-114 (LEK/DJS), 2024 WL 1826595 (N.D.N.Y. Apr. 26, 2024) (citations and quotation omitted) (“The doctrine also bars federal courts from considering claims that are ‘inextricably intertwined’ with a prior state court determination.”). 2. Younger Abstention Doctrine “In the event that plaintiff's underlying state family court proceeding 11 is currently pending, his request for this Court's involvement would implicate the Younger abstention doctrine.” Gerken, 2024 WL 4608307, at *4 (citing Younger v. Harris, 401 U.S. 37 (1971)). Under the Younger abstention doctrine, “federal courts [must] abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (citing Younger, 401 U.S. at 43-44.). “This doctrine of federal abstention rests foursquare on the notion that, in the ordinary course, a state proceeding provides an adequate forum for the vindication of federal constitutional rights.” Id. (quoting Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir. 1994)). “[I]t is settled that for purposes of Younger abstention that [sic] a proceeding is considered pending until all appellate court remedies have been exhausted.” Reinhardt v. Com. of Mass. Dep't of Soc. Servs., 715 F. Supp. 1253, 1255 (S.D.N.Y. 1989) (internal quotation marks and citation omitted). “Younger abstention is required when three conditions are met: (1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.” Diamond “D” Const. Corp, 282 F.3d at 198 (citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)). The “Younger abstention is triggered only by three categories Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 164 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 of state court proceedings: (1) state criminal prosecutions; (2) civil proceedings that are akin to criminal proceedings; and (3) civil proceedings that ‘implicate a State's interest in enforcing the orders and judgments of its courts.’ ” Amato v. McGinty, No. 1:17-CV-593 (MAD/ATB), 2017 WL 9487185, at *10 (N.D.N.Y. June 6, 2017), report and recommendation adopted, No. 1:17-CV-00593 (MAD/ATB), 2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017) (internal quotations omitted) (quoting Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584, 588). Here, because plaintiff's complaint references ongoing child custody and child support matters, see generally Dkt. No. 1, “the Younger abstention conditions are clearly met.” Fishman v. Off. of Ct. Admin. New York State Courts., No. 18- CV-282 (KMK), 2020 WL 1082560, at *10 (S.D.N.Y. Mar. 5, 2020), aff'd, No. 20-1300, 2021 WL 4434698 (2d Cir. Sept. 28, 2021). “First, state-court proceedings regarding the appropriate child custody arrangement are ongoing in Family Court and New York State appellate courts.” Id. Second, child custody and child support disputes “are a matter rightfully reserved for state courts.” Id. (citing Puletti v. Patel, No. 05-CV-2293 (SJ), 2006 WL 2010809, at *4 (E.D.N.Y. July 14, 2006) (“The United States Supreme Court ... has long recognized that ‘the whole subject of the domestic relations of ... parent and child[ ] belongs to the laws of the States and not to the laws of the United States.”)); see also Reinhardt, 715 F. Supp. at 1256 (S.D.N.Y. 1989) (citing Moore v. Sims, 442 U.S. 415, 435 (1979) (“Questions of family relations ... are traditionally an area of state concern.”)); Walker, 2022 WL 2341420, at *6 (“[I]t is well-settled that a custody dispute raises important state interests.” (citations omitted)); Tomczyk v. New York Unified Ct. Sys., No. 19-CV-2753 (JS)(AYS), 2019 WL 2437849, at *3 (E.D.N.Y. June 10, 2019) (dismissing the plaintiff's complaint that “implicate[d] the way that New York courts manage their own divorce and custody proceedings–a subject in which ‘the states have an especially strong interest.”) (citations and quotations omitted). Third, “[a]fter the Family Court makes its final disposition on custody and [child support] (or, if it has already done so), Plaintiff may appeal that decision within the state court system and raise all federal constitutional claims there.” Fishman 2020 WL 1082560, at *11. Plaintiff has not alleged, and the complaint does not indicate, that he has attempted to appeal the Family Court's orders and judgments or received a decision on such appeal(s). See generally Dkt. No. 1. *6 Therefore, to the extent that plaintiff's child custody and child support matters are still pending in New York State court, the undersigned recommends that the Court abstain from interfering. See Cogswell v. Rodriguez, 304 F. Supp. 2d 350, 357 (E.D.N.Y. 2004) (applying the Younger abstention doctrine to dismiss claims which arose from “pending state court proceedings involving child support”) (citation omitted); Bowman v. Morris, No. 8:19-CV-97 (BKS/ DJS), 2019 WL 5150196, at *6 (N.D.N.Y. Apr. 10, 2019), report and recommendation adopted, 2019 WL 3759174 (N.D.N.Y. Aug. 9, 2019) (“Accordingly, to the extent that the child support issues are continuing in Family Court, the Court should abstain from interfering with that process.”); Walker, 2022 WL 2341420, at *6 (“[T]o the extent the custody dispute is continuing in New York State Family Court, this Court should abstain from interfering with that process.”). Alternatively, because plaintiff's complaint raises an allegation of fraud, see Dkt. No. 1-1 at 1, it is necessary to address the exceptions to Younger and the situations in which the Court should intervene. “Despite the strong policy in favor of abstention, a federal court may nevertheless intervene in a state proceeding upon a showing of bad faith, harassment or any other unusual circumstance that would call for equitable relief.” Diamond D. Const. Corp., 282 F.3d at 198 (quoting Younger, 401 U.S. at 54) (internal quotations omitted). Plaintiff has the burden of establishing that one of the Younger exceptions applies. See id. (“[A] plaintiff who seeks to head off Younger abstention bears the burden of establishing that one of the exceptions applies.”) (citing Kirschner v. Klemons, 225 F.3d 227, 235-36 (2d Cir. 2000)). “To meet the bad faith or harassment exception, the federal plaintiff must show that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive.” Hunter v. McMahon, No. 20-CV-18 (LJV-MJR), 2024 WL 4362310, at *6 (W.D.N.Y. Sept. 30, 2024) (quoting Diamond D. Const. Corp., 282 F.3d at 199) (emphasis omitted). In other words, the federal plaintiff “must have no reasonable expectation of obtaining a favorable outcome.” Diamond “D” Const. Corp., 282 F.3d at 199. “A state proceeding that is legitimate in its purposes, but unconstitutional in its execution—even when the violations of constitutional rights are egregious—will not warrant the application of the bad faith exception.” Id. (citing Schlagler v. Phillips, 166 F.3d 439, 443-44 (2d Cir. 1999)). To satisfy the extraordinary circumstance exception, the plaintiff must demonstrate that the “the state court incapable of fairly and fully adjudicating the federal issues before it....” Diamond “D” Const. Corp., 282 F.3d at 201 (quoting Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 165 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Kugler v. Helfant, 421 U.S. 117, 124, (1975)). 12 “[T]he Second Circuit has identified ‘two predicates for application of this exception: (1) that there be no state remedy available to meaningfully, timely, and adequately remedy the alleged constitutional violation; and (2) that a finding be made that the litigant will suffer ‘great and immediate’ harm if the federal court does not intervene.’ ” Rhee-Karn v. Burnett, No. 13 CIV. 6132 (JPO), 2014 WL 4494126, at *6 (S.D.N.Y. Sept. 12, 2014) (quoting Diamond “D” Const. Corp., 282 F.3d at 201). Plaintiff has failed to satisfy his burden of demonstrating that any of the Younger exceptions apply. See Diamond D. Const. Corp., 282 F.3d at 198. Concerning the bad faith or harassment exception, plaintiff uses the term “fraud” and claims that the proposed defendants are “frauding” and “stealing” from him. Dkt. No. 1-1 at 1. Yet, he has not stated how he was defrauded or any “illegitimate motive” behind the proposed defendants’ actions. See Hunter, 2024 WL 4362310, at *6. Similarly, plaintiff has not alleged that he had “no reasonable expectation of obtaining a favorable outcome” at the outset of the underlying state court proceedings. See Diamond “D” Const. Corp., 282 F.3d at 199. The root of plaintiff's complaint is a simple disagreement with a state court order that set forth his parenting time, child support obligation, and entered a judgment for child support arrears. *7 Further, plaintiff has failed to show that this matter constitutes an extraordinary circumstance. See Diamond “D” Const. Corp., 282 F.3d at 201. Plaintiff has not alleged, and the complaint does not indicate, that he appealed the underlying state court's custody and child support order(s) or judgment(s) or filed an Article 78 13 proceeding challenging the Child Support Unit's collection process. 14 “Absent a showing that [the plaintiff has] actually sought and been denied such relief, [plaintiff has] not plausibly alleged that there exists no state remedy to meaningfully, timely, and adequately remedy the alleged constitutional violations.” Rhee-Karn, 2014 WL 4494126, at *6. Moreover, plaintiff has not alleged that he will suffer from “ ‘great and immediate’ harm if the federal court does not intervene.” Id. Rather, he requests his preferences: parenting time with the child, a reduction of his child support obligation, and the return of monies garnished from his paychecks. See generally Dkt. No. 1. Plaintiff's allegations against defendants amount to conclusory allegations and ones that can be resolved in state court. See Evans v. Adams, No. 22-CV-3882 (KAM/JRC), 2024 WL 306240, at *4 (E.D.N.Y. Jan. 26, 2024) (“[C]onclusory statements accusing the state court of violating the Constitution without more do not establish an obstacle to ... full and fair determination” in state courts.); Chapman v. Maycock, No. 21-CV-4940 (KAM/JRC), 2021 WL 6091749, at *4 (E.D.N.Y. Dec. 23, 2021) (holding that “conclusory statements alleging family court's disregard of the Constitution ... without more, are not sufficient to show that [the plaintiff's] claims are not capable of being resolved fairly in state court”). Based on the foregoing, the undersigned concludes that none of the Younger abstention exceptions apply. Therefore, “it is recommended that plaintiff's complaint be dismissed without prejudice 15 for lack of subject matter jurisdiction under either Rooker-Feldman or Younger.” Gerken, 2024 WL 4608307, at *5. “However, due to these doctrines barring such claims from proceeding, it is recommended that an opportunity to amend not be afforded as no better pleading can cure the lack of subject matter jurisdiction.” Id. “[T]here is no requirement that a court address every single potential ground for dismissal where it is clear that a claim should be dismissed.” Gerken, 2024 WL 4608307, at *5 (quoting Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024 WL 2291701, at *13 (N.D.N.Y. May 21, 2024)) (citing, inter alia, Curtis v. Greenberg, No. 22-252-CV, 2023 WL 6324324, *2 n.3 (2d Cir. Sept. 29, 2023)). However, the undersigned notes, for the sake of completeness, that there are several additional, alternative grounds for dismissal. 3. Domestic Relations Abstention *8 The Supreme Court [l]ong ago observed that the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. So strong is our deference to state law in this area that we have recognized a domestic relations exception that divests the federal courts of power to issue divorce, alimony, and child custody decrees. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 166 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13 (2004) (internal quotation marks and citations omitted), abrogated on other grounds by Lexmark Int'l Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014); see also Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (“[T]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”); Mansell v. Mansell, 490 U.S. 581, 587, (1989) (“[D]omestic relations are preeminently matters of state law.”); United States v. Windsor, 570 U.S. 744, 766 (2013) (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons; but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”) (internal quotation marks and citations omitted); Bowman, 2019 WL 5150196, at *5, report and recommendation adopted, 2019 WL 3759174 (N.D.N.Y. Aug. 9, 2019) (“Under the domestic relations exception to the jurisdiction of federal courts, cases involving divorce, alimony, and child [support] remain outside federal court jurisdiction.”) (citing Marshall v. Marshall, 547 U.S. 293, 308 (2006)). “Under the domestic relations abstention doctrine[,] ... a federal court [may] decline to exercise jurisdiction where claims are on the verge of being matrimonial in nature and there is no obstacle to their full and fair determination in state courts.” Gerken, 2024 WL 4608307, at *5 (quoting Ortiz v. Tinnerello, No. 3:20-CV-1782 (KAD), 2021 WL 11593793, at *4 (D. Conn. Jan. 20, 2021)); see Bey v. Furman, No. 21-CV-4090 (WFK/RER), 2021 WL 3725987, at *4 (E.D.N.Y. Aug. 23, 2021) (indicating that the plaintiff challenging his duty to pay child support was “matrimonial in nature”). “Courts in this circuit routinely dismiss actions for lack of subject matter jurisdiction, due to the domestic relations abstention doctrine, where the plaintiff is seeking review of child custody [and child support] proceedings.” Gerken, 2024 WL 4608307, at *6 (citing Neustein v. Orbach, 732 F. Supp. 333, 339-40 (E.D.N.Y. 1990) (holding that the Court lacked jurisdiction because it could not resolve factual disputes connected to domestic relations)); Dudley v. Hochul, No. 5:24-CV-0048 (DNH/ML), 2024 WL 1906594, at *5 (N.D.N.Y. May 1, 2024) (same), report and recommendation adopted sub nom. Dudley v. Hocul, 2024 WL 2399913 (N.D.N.Y. May 23, 2024); Pynn v. Pynn, No. 24-CV-508 (LJV), 2024 WL 3647783, at *8 (W.D.N.Y. Aug. 5, 2024) (collecting cases and noting that “[c]ourts in this circuit have found abstention appropriate when the plaintiff asked a federal court to review and overturn state court rulings related to child custody and divorce.”); Rotondo v. New York, No. 5:17-CV-1065 (GLS/DEP), 2017 WL 5201738, at *4 (N.D.N.Y. Oct. 31, 2017) (“[It is manifestly clear that [the] plaintiff's claims implicate the domestic-relations exception to federal court jurisdiction. [The p]laintiff challenges a state- court's determination denying him relief from a family court's child support order, and [the] plaintiff's requests for relief include removal of the family court proceeding to federal court.”), report and recommendation adopted, 2017 WL 5198194 (N.D.N.Y. Nov. 9, 2017); Davis v. Kushner, No. 1:14-CV-00511 (MAD), 2014 WL 5308142, at *4 (N.D.N.Y. Oct. 16, 2014) (recommending dismissal of the plaintiff's claim as barred by the domestic relations exception where the plaintiff sought “monetary damages for an unfavorable family court ruling ...”). *9 As discussed above, plaintiff challenges a child custody and child support order(s), as well as a judgment for child support arrears. See generally Dkt. No. 1, Dkt. No. 1-1, Dkt. No. 1-2. On its face, plaintiff's complaint seeks monetary damages for what he perceives to be unfavorable state court rulings. See Davis, 2014 WL 5308142, at *4. However, “[t]he doctrine of domestic relations abstention means that this Court does not have jurisdiction over the plaintiff's claims.” Sekou Camera v. N.Y.C. Dep't of Soc. Servs., No. 24-CV-5886 (AMD/TAM), 2024 WL 4107256, at *2 (E.D.N.Y. Sept. 5, 2024). Thus, the undersigned alternatively recommends that plaintiff's complaint be dismissed without prejudice for lack of subject matter jurisdiction under the domestic relations abstention doctrine. See Remy v. New York State Dep't of Tax. & Fin., 507 F. App'x 16, 18-19 (2d Cir. 2013) (summary order) (dismissing complaint that sought “direct review” of child support order in state family court); see also Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a court lacks subject matter jurisdiction, it also lacks the power to dismiss with prejudice.”). 4. Sovereign Immunity The Eleventh Amendment to the United States Constitution states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. Applying this principle, “[a]s a general rule, state governments and their agencies may not be sued in federal court unless they have waived their Eleventh Amendment immunity or there has Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 167 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 been a valid abrogation of that immunity by Congress.” Gerken, 2024 WL 4608307, at *6 (quoting Kisembo v. N.Y.S. Off. of Child. & Fam. Servs., 285 F. Supp. 3d 509, 519 (N.D.N.Y. 2018)); see Garcia v. Paylock, No. 13- CV-2868 (KAM), 2014 WL 298593, at *3 (E.D.N.Y. Jan. 28, 2014) (“Plaintiff's equal protection claims also may not be brought directly under the Fourteenth Amendment because the State has not waived its immunity or had that immunity abrogated pursuant to that constitutional amendment.”). “This jurisdictional bar applies regardless of the nature of the relief sought.” Gerken, 2024 WL 4608307, at *6 (quoting Murawski v. N.Y. State Bd. of Elections, 285 F. Supp. 3d 691, 695 (S.D.N.Y. 2018)) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). “[T]he immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Gerken, 2024 WL 4608307, at *7 (quoting Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (internal quotation marks and citation omitted)) (quoting Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)); see Marino v. City Univ. of New York, 18 F. Supp. 3d 320, 329 (E.D.N.Y. 2014) (explaining that sovereign immunity bars “direct constitutional claim[s] brought directly against a state entity”) (citing Santiago v. N.Y. State Dep't of Corr. Servs., 945 F.2d 25, 30-32 (2d Cir. 1991)); see also Rubin v. N.Y. State Dep't of Motor Vehicles, No. 10-CV-4119 (NGG), 2010 WL 3842011, at *1 (E.D.N.Y. Sept. 28, 2010) (“The Eleventh Amendment bars suits against states, their agencies whether the [p]laintiff seeks relief at law or in equity, absent the state's consent to suit or an express or statutory waiver of immunity.”) (citing Pennhurst State School & Hosp., 465 U.S. at 99-102). a. Government Entities The Schenectady County Child Support Collection Unit appears to be a branch of New York State Child Support Services operating under the New York State Department of Social Services. Similarly, the Division of Child Support Enforcement Newport News District Office appears to be a subdivision of the Virginia State Department of Social Services. 16 The Schenectady County Family Court is a court that is part of the New York State Unified Court System. 17 These entities are “arm[s] of the state for purposes of sovereign immunity.” Gerken, 2024 WL 4608307, at *7 (citing Calderon v. N.Y.C. Dep't of Homeless Servs., No. 24- CV-4631 (VEC), 2024 WL 3429884, at *2 (S.D.N.Y. July 16, 2024)) (“[A]s an agency of the State of New York, the New York State Department of Social Services is an arm of the State and is protected by Eleventh Amendment immunity.”); see also Dixon v. Jordan, No. 23-CV-9227 (LTS), 2024 WL 37096, at *2 (S.D.N.Y. Jan. 2, 2024) (“Plaintiff's Section 1983 claims against the New York State Child Support Services are therefore barred by the Eleventh Amendment and are dismissed because they seek monetary relief against a defendant who is immune from such relief.”) (citations omitted); Dickson v. Schenectady Fam. Ct., No. 1:22-CV-499 (DNH/CFH), 2022 WL 16966549, at *3 (N.D.N.Y. Oct. 27, 2022), report and recommendation adopted, No. 1:22- CV-499, 2022 WL 16961389 (N.D.N.Y. Nov. 16, 2022) (quoting Vazquez v. New York, No. 1:22-CV-196 (GTS/CFH), 2022 WL 2390248, at *5 (N.D.N.Y. June 30, 2022)), report and recommendation adopted sub nom. Vazquez Carbuccia v. New York, 2022 WL 3100553 (N.D.N.Y. Aug. 4, 2022) (“This Court has explained that the Schenectady County Family Court is a part of the New York State Unified Court System and is entitled to sovereign immunity.”) (internal quotations omitted); Warden v. Virginia Dep't of Soc. Servs. (Pulaski Cnty.), No. 7:23-CV-00775, 2023 WL 8481014, at *2 (W.D. Va. Dec. 7, 2023) (“The court further notes that numerous courts, including this one, have held that a county branch of the Department of Social Services is considered a state entity in Virginia and is entitled to Eleventh Amendment immunity, which precludes any suit for money damages in federal court.”) (citations omitted). *10 Neither New York, nor Virginia, have “expressly waived its sovereign immunity with respect to the claims asserted in plaintiff's complaint.” Gerken, 2024 WL 4608307, at *7 (citing Edelman v. Jordan, 415 U.S. 651, 673 (1974) (“[W]e will find waiver only where stated by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction.”) (internal quotations omitted)) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)); see also Mamot v. Bd. of Regents, 367 F. App'x 191, 192 (2d Cir. 2010) (summary order) (“It is well-established that New York has not consented to § 1983 lawsuits in federal court[.]”). “Moreover, Congress has not abrogated New York's sovereign immunity in enacting § 1983”. Gerken, 2024 WL 4608307, at *7 (citing Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 39-40 (2d Cir. 1977)); see also Mayo v. Doe, 480 F. Supp. 3d 395, 402 (D. Conn. 2020) (holding that “[s]ection 1983 does not abrogate state sovereign immunity”) (citing Quern v. Jordan, 440 U.S. 332, Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 168 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 342 (1979)). Accordingly, plaintiff's § 1983 claims against the Schenectady County Child Support Collection Unit, Division of Child Support Enforcement Newport News District Office, and Schenectady County Family Court are barred under the Eleventh Amendment. See Corrado v. State of N.Y. Univ. Stony Brook Police, Nos. 15-CV-7443, 15-CV-7444, 2016 WL 4179946, at *6 (E.D.N.Y. Aug. 5, 2016) (“Plaintiff's claims ... fail because this defendant is an administrative arm of Suffolk County, a municipality, and has no independent legal identity .... [A]gencies of a municipality are not suable entities because [u]nder New York law, departments that are merely administrative arms of a municipality have no separate legal identity apart from the municipality and therefore cannot be sued.”) (internal quotations omitted) (quoting Omnipoint Comm'ns, Inc. v. Town of Lagrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009)) “The undersigned notes that a dismissal based on the doctrine of sovereign immunity, is consequently a dismissal for lack of subject matter jurisdiction.” Gerken, 2024 WL 4608307, at *7 (quoting Griffith v. New York State, No. 5:23-CV-1266 (DNH/ML), 2024 WL 1641587, at *5 n.4 (N.D.N.Y. Mar. 20, 2024) (citations omitted)). Therefore, it is alternatively recommended that plaintiff's claims against the Schenectady County Child Support Collection Unit and Division of Child Support Enforcement Newport News District Office be dismissed without prejudice for lack of subject matter jurisdiction. See id. (citing Abadi v. City of New York, 22- CV-1560, 2023 WL 3295949, at *3 n.3 (2d Cir. May 8, 2023) (summary order) (“Because the Court lacks subject matter jurisdiction ... the amended complaint should be dismissed without prejudice.”); Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (“[A] complaint must be dismissed without prejudice where the dismissal is due to the court's lack of subject matter jurisdiction[.]”)) b. Dylan Reilly, Deputy County Attorney i. Official Capacity Claim Plaintiff named “Attorney-Reilly Dylian [sic]” on his list of people he wanted to sue. Dkt. No. 1-1 at 9. He also attached to his complaint a copy of a proposed Order of Support signed by Dylan Reilly, Deputy County Attorney, Schenectady County Attorney's Office, Department of Social Services (“Reilly”). See Dkt. No. 3 at 4. Although plaintiff seeks to name Reilly as a defendant in this action, his complaint does not directly or implicitly raise any claims against Reilly. See generally Dkt. No. 1. Further, the complaint is devoid of any factual allegations concerning Reilly. See id. The only mentions of Reilly in the complaint are the presence of their name and the copy of the proposed order where their name is highlighted and starred. The undersigned concludes that, as to Reilly, plaintiff's complaint “in its current form fails to state a claim for relief and fails to state the Court's subject matter jurisdiction. As such, dismissal would be appropriate pursuant to 28 U.S.C. §§ 1915(e) and 1915A.” Ajamian v. Nimeh, No. 1:14-CV-0320 (GTS/CFH), 2014 WL 6078425, at *7 (N.D.N.Y. Nov. 13, 2014) Even, assuming arguendo, that plaintiff's complaint had raised a claim against Reilly in their official capacity as a deputy county attorney, such claims must still be dismissed under the doctrine of sovereign immunity. “Sovereign immunity bars not only suits against states themselves, but also suits for damages against state officials acting in their official capacities.” Chapman v. City of Albany, No. 1:23- CV-686 (LEK/PJE), 2025 WL 295011, at *5 (N.D.N.Y. Jan. 24, 2025) (citing Kentucky v. Graham, 473 U.S. 159, 169 (1985)); see also Gollomp, 568 F.3d at 365. By signing the proposed child support order as “Deputy County Attorney, Schenectady County Attorney's Office, Department of Social Services,” Dkt. No. 1-3 at 4, Reilly was clearly acting in their official capacity as a state official, and, therefore, is entitled to sovereign immunity. “Thus, plaintiff's claims for damages against the state employees sued in their official capacities are barred by the Eleventh Amendment.” Young v. Lugo, No. 18-CV-4216(JFB)(AKT), 2019 WL 1492679, at *3 (E.D.N.Y. Apr. 4, 2019) (citing Darcy v. Lippman, 356 F. App'x 434, 436-37 (2d Cir. 2009)) (“The Eleventh Amendment likewise bars [plaintiff] from pursuing a claim for damages against the individual defendants in their official capacities”). Accordingly, the undersigned recommends that plaintiff's claims against Reilly in their official capacity as “Deputy County Attorney” be dismissed without prejudice for lack of subject matter jurisdiction. See Gerken, 2024 WL 4608307, at *7. ii. Individual Capacity Claim *11 “Absolute immunity protects government officials from suit arising out of acts associated with their ‘function as an advocate.’ ” Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024 WL 2291701, at *10 (N.D.N.Y. May 21, 2024), aff'd sub nom. Dees v. Knox, No. 24-1574-CV, 2025 WL 485019 (2d Cir. Feb. 13, 2025) (quoting Jeanty v. Sciortino, 669 F. Supp. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 169 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 3d 96, 108 (N.D.N.Y. 2023)) (quoting Buari v. City of New York, 530 F. Supp. 3d 356, 378 (S.D.N.Y. 2021)). “Absolute immunity extends to ‘government attorneys defending civil suits’ and ‘government attorneys who initiate civil suits.’ ” Id. (quoting Jeanty, 669 F. Supp. 3d at 108) (quoting Spear v. Town of West Hartford, 954 F.2d 63, 66 (2d Cir. 1992)). “In determining whether an official is entitled to absolute immunity, courts employ a functional’ approach, looking at the nature of the function performed, not the identity of the actor who performed it.” Id. (quoting Jeanty, 669 F. Supp. 3d at 108) (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 394 (2d Cir. 2006)) (internal quotations omitted). “The principle applies to functions of a government attorney that can fairly be characterized as closely associated with the conduct of litigation or potential litigation in civil suits – including the defense of such actions.” Id. (quoting Jeanty, 669 F. Supp. 3d at 108) (internal quotations omitted). “[O]nce a court determines that challenged conduct involves a function covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive or the degree of injury caused.” Id. (quoting Jeanty, 669 F. Supp. 3d at 108) (quoting Bernard v. County of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citation omitted)). It appears that plaintiff's allegations against Reilly stem entirely from Reilly's functions as a Deputy County Attorney for the Schenectady County Attorney's Office. Dees, 2024 WL 2291701, at *10. Reilly is a government attorney who signed a proposed order affecting plaintiff's state court litigation. See Dkt. No. 1-3 at 4. Therefore, the undersigned concludes Reilly's act of filing the proposed order was associated with their “function as an advocate” and “closely associated with the conduct of litigation.” Dees, 2024 WL 2291701, at *10. Therefore, the undersigned recommends that plaintiff's claims against Reilly in their individual capacity be dismissed without prejudice for lack of subject matter jurisdiction. See id. 5. Judicial Immunity Liberally reading plaintiff's complaint and affording plaintiff due solicitude, he names Bruce J. Wagner, Support Magistrate (“Wagner”), as a defendant in this action. See Dkt. No. 1-1 at 9; Dkt. No. 1-3. “With minor exceptions, judges are entitled to absolute immunity for actions relating to the exercise of their judicial functions.” Gerken, 2024 WL 4608307, at *8 (quoting Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/ ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)) (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam)). “Judicial immunity has been created for the public interest in having judges who are ‘at liberty to exercise their functions with independence and without fear of consequences.’ ” Id. (quoting Zavalidroga, 2017 WL 8777370, at *8) (quoting Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even when the judge is accused of acting maliciously or corruptly.” Id. (citation omitted); see Positano v. New York, No. 12-CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y. Mar. 7, 2013) (explaining that the plaintiff may not bring action against a judge for actions taken in his judicial capacity, even when the actions violated the ADA). “Family Court Support Magistrates, as New York State judicial officers, enjoy [ ] judicial immunity, when presiding over child support proceedings.” Id. (quoting Cora v. Wright, No. 1:24-CV-0263 (LTS), 2024 WL 450247, at *2 (S.D.N.Y. Feb. 5, 2024)); see Dieujuste v. Sin, 731 F. Supp. 3d 440, 448 (E.D.N.Y.), reconsideration denied, 734 F. Supp. 3d 232 (E.D.N.Y. 2024), and aff'd, 125 F.4th 397 (2d Cir. 2025) (“As a Support Magistrate presiding over child support proceedings, Judge Sin is unquestionably entitled to judicial immunity.”) *12 “Judicial immunity is immunity from suit, not just immunity from the assessment of damages.” Gerken, 2024 WL 4608307, at *8 (quoting Zavalidroga, 2017 WL 8777370, at *8) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The only two circumstances in which judicial immunity does not apply is when he or she takes action ‘outside’ his or her judicial capacity and when the judge takes action that, although judicial in nature, is taken ‘in absence of jurisdiction.’ ” Id. (citing Mireles, 502 U.S. at 11-12). “In determining whether or not a judge acted in the clear absence of all jurisdiction, the judge's jurisdiction is ‘to be construed broadly, and the asserted immunity will only be overcome when the judge clearly lacks jurisdiction over the subject matter.’ ” Id. (quoting Pacherille v. Burns, 30 F. Supp. 3d 159, 163 (N.D.N.Y. 2014)) (quoting Ceparano v. Southampton Just. Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)). “Whether a judge acted in a judicial capacity depends on the nature of the act [complained of] itself, i.e., whether it is a function normally performed by a judge, and [on] the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Id. (quoting Ceparano, 404 F. App'x at 539 (internal quotation marks and citation omitted)). “Further, if the judge is performing in his judicial capacity,” he “ ‘will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 170 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 when he has acted in the clear absence of all jurisdiction.’ ” Id. (quoting Ceparano, 404 F. App'x at 539) (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). “Judges are not, however, absolutely ‘immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity.’ ” Id. (quoting Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (quoting Mireles, 502 U.S. at 11)). Plaintiff claims that Wagner is “performing duties he's not lawfully to do,”, and doing “an accountants job and determining what get [sic] deducted from [him].” Dkt. No. 1-1 at 3. Plaintiff further opines, “how is the magistrate practicing law and accountant [sic] when given rights to only practice law its [sic] fraud.” Id. at 4. He contends that his “constitutional rights was [sic] violated cause they say I owe over $20 dollars to where [sic] the magistrate called for a trial and never had the jury I asked for.” Id. at 6. Plaintiff further claims, “to my knowledge he do [sic] not have the authority or jurisdiction cause [sic] he is not a judicial officer and also he cannot sign into order for any type of money judgment or court hearing ....” Dkt. No. 1-2 at 1. Liberally construing plaintiff's complaint, he appears to argue that Wagner “acted ... outside the bounds of [his] authority during plaintiff's child support proceedings.” Gerken, 2024 WL 4608307, at *9 (quoting Dougal v. Lewicki, No. 1:23- CV-1167 (DNH/CFH), 2023 WL 6430586, at *5 (N.D.N.Y. Oct. 3, 2023), report and recommendation adopted, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023) (internal quotations omitted)). However, “[t]he scope of the judge's jurisdiction must be construed broadly, such that a court acts in the absence of all jurisdiction only when it does not have any statutory or constitutional power to adjudicate the case.” Id. (quoting Dickerson v. Siegal, No. 23-CV-3859 (EK/ LB), 2023 WL 6158833, at *3 (E.D.N.Y. Sept. 21, 2023) (citations and internal quotation marks omitted)). Plaintiff's contention that Wagner, as a support magistrate, did not have the jurisdiction to calculate his support payment or arrears is without merit. See Y.D. v. L.O., 77 Misc. 3d 964, 967, 182 N.Y.S.3d 534, 537 (N.Y. Fam. Ct. 2022) (“Family Court Act § 439(a) empowers Support Magistrates to hear, determine and grant any relief within the powers of the Court, in proceedings properly before them.”) (internal quotations omitted). 18 Further, even accepting plaintiff's allegations as true, he has failed to demonstrate that Wagner acted in the “complete absence of all jurisdiction.” Gerken, 2024 WL 4608307, at *9 (quoting Ceparano, 404 F. App'x at 539); see Olszyk v. Thorne, No. 3:20-CV-0445 (TJM/ML), 2020 WL 5634328, at *5 (N.D.N.Y. June 17, 2020) (“The Complaint is devoid of facts plausibly suggesting that Defendant [Judge] Barrasse acted in the clear absence of all jurisdiction. As a result, I recommend that the claims against Defendant Barrasse be dismissed in their entirety based on the doctrine of absolute judicial immunity.”), report and recommendation adopted, 2020 WL 5633791 (N.D.N.Y. Sept. 21, 2020). *13 Accordingly, Wagner “is immune from suit pursuant to the doctrine of judicial immunity” as to plaintiff's claims concerning “conduct taken in his capacity as a child support magistrate.” Gerken, 2024 WL 4608307, at *9 (citing Shtrauch v. Dowd, 651 F. App'x 72, 73-74 (2d Cir. 2016) (summary order) (“Generally, ‘acts arising out of, or related to, individual cases before the judge are considered judicial in nature’ ”) (quoting Bliven, 579 F.3d at 210)); see also Cora v. Wright, No. 1:24-CV-0263 (LTS), 2024 WL 450247, at *3 (S.D.N.Y. Feb. 5, 2024) (“Because [the p]laintiff sues Support Magistrate Wright for acts arising out of, or related to, individual cases before [her], the doctrine of judicial immunity applies to [the p]laintiff's claims under Section 1983 against her.”) (internal quotation marks and citations omitted). Insofar as plaintiff brings an action against Wagner “in his official capacity, the suit is barred by the Eleventh Amendment.” Id. (citing Pacherille, 30 F. Supp. 3d at 163 n.5) (“The Eleventh Amendment shields judges from suit to the extent that they are sued in their official capacities.”); see also Trello v. McKeighan, 624 F. Supp. 3d 150, 155-56 (N.D.N.Y. 2022). “The doctrine of judicial immunity shields judges from suit to the extent they are sued in their individual capacities.” Id. (quoting Kellogg v. Nichols, 703 F. Supp. 3d 367, 372 (N.D.N.Y. 2023)) (citing Trello v. McKeighan, 624 F. Supp. 3d 150, 155 (N.D.N.Y. 2022)). Therefore, it is recommended that the claims against Wagner “in both his individual and official capacities are barred by judicial and sovereign immunity.” Gerken, 2024 WL 4608307, at *10. “The undersigned further recommends dismissing the claims against [Wagner] without prejudice for lack of subject matter jurisdiction and without opportunity to amend.” Id. (citing Miller v. Cnty. of Nassau, 467 F. Supp. 2d 308, 312 (E.D.N.Y. 2006) (explaining that a dismissal “based on a finding of judicial immunity” is for lack of subject matter jurisdiction)); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996) (holding that claims barred by the Eleventh Amendment are properly dismissed for lack of subject matter jurisdiction). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 171 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 6. 42 U.S.C. § 1983 a. State Action Plaintiff's complaint lists “Child Attorney – Rebecca Bauscher” (“Bauscher”) as someone he wanted to sue for violating his constitutional rights. Dkt. No. 1-1 at 9. However, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Gerken, 2024 WL 4608307, at *11 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). “The traditional definition of acting under color of state law requires that the defendant ... exercise[ ] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. (quoting West, 487 U.S. at 49) (internal quotation marks and citation omitted). “Because the United States Constitution regulates only the Government, not private parties, [with respect to a claim brought under § 1983,] a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Id. (quoting Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotations omitted)) (quoting United States v. Int'l Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)); see Baum v. N. Dutchess Hosp., 764 F. Supp. 2d 410, 419 (N.D.N.Y. 2011) (“State action is an essential element of any § 1983 claim.”) (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 934 (1982) (explaining that the “under color of any statute” language is to enforce the provisions of the Fourteenth Amendment and that if a defendant's conduct satisfies the state-action requirement then that conduct is also action under color of state law under § 1983), and Rounseville v. Zahl, 13 F.3d 625, 627-28 (2d Cir. 1994) (noting the state action requirement for § 1983)). *14 “Private parties generally are not state actors and therefore are not usually liable under [§] 1983.” Gerken, 2024 WL 4608307, at *11 (quoting Yi Sun v. Saslovsky, No. 1:19- CV-10858 (LTS), 2020 WL 6828666, at *7 (S.D.N.Y. Aug. 6, 2020)) (citing Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013)); see Basile v. Connolly, 538 F. App'x 5, 7 (2d Cir. 2013) (summary order) (“[P]rivate individuals ... cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation that they acted under color of state law.”). “A private party's actions can be considered state action in three situations”: (1) the private party acts using the coercive power of the state or is controlled by the state (the “compulsion test”); (2) the private party willfully participates in joint activity with the state or its functions are entwined with state policies (the “joint action” or “close nexus” test); or (3) the state has delegated a public function to the private party (the “public function” test). Id. (quoting Rogers v. City of New Rochelle, No. 1:19- CV-0479 (CM), 2019 WL 5538031, at *2 (S.D.N.Y. Oct. 25, 2019)) (citing Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)). “The fundamental question under each test is whether the private party's challenged actions are ‘fairly attributable’ to the State.” Id. (quoting Rogers, 2019 WL 5538031, at *2) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). “[A] State normally can be held responsible for a private decision ... when it has ... provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (citations omitted)). The State's “[m]ere approval of or acquiescence in the initiatives of a private party[, however,] is not sufficient to justify holding the State responsible for those initiatives ....” Id. (quoting Blum, 457 U.S. at 1004-05). Here, it appears that Bauscher is the attorney for plaintiff's child. Plaintiff's complaint does not directly or implicitly raise any claims against Bauscher. See generally Dkt. No. 1. Further, the complaint is devoid of any factual allegations concerning Bauscher. See id. The only mentions of Bauscher in the complaint are that she is named on the list of people plaintiff wanted to sue, and that plaintiff allegedly told Bauscher that he is “in his [son's] life and [he] takes good care of him and [they] talk every day and that [he] give [sic] him money.” Dkt. No. 1-1 at 1, 9. The undersigned concludes that, as to Bauscher, plaintiff's complaint “in its current form fails to state a claim for relief and fails to state the Court's subject matter jurisdiction. As such, dismissal would be appropriate pursuant to 28 U.S.C. §§ 1915(e) and 1915A.” Ajamia, 2014 WL 6078425, at *7. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 172 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 “The Second Circuit has held that attorneys for the child are not state actors for purposes of suits filed pursuant to § 1983.” Gerken, 2024 WL 4608307, at *12 (quoting Milan v. Wetheimer, 808 F.3d 961, 964 (2d Cir. 2015) (internal quotations omitted)); see also Parent v. New York, 786 F. Supp. 2d 516, 538 (N.D.N.Y. 2011), aff'd, 485 F. Appx. 500 (2d Cir. 2012) (“[A]lthough appointed by the state, an attorney for the children or law guardian is not a state actor because he or she must exercise independent professional judgment on behalf of the clients they represent”). Thus, it is recommended that plaintiff not be afforded an opportunity to amend as against Bauscher as any such amendment would be futile. See Hartley v. United Student Rentals, No. 1:24- CV-925 (AMN/CFH), 2025 WL 26769, at *5 (N.D.N.Y. Jan. 3, 2025), report and recommendation adopted, No. 1:24-CV-925 (ECC/PJE), 2025 WL 438195 (N.D.N.Y. Feb. 7, 2025). Accordingly, the undersigned recommends that plaintiff's Section 1983 claim against Bauscher be dismissed. “Importantly, as the undersigned concluded above, plaintiff's complained of conduct surrounding and relating to the implementation of the child support order ... cannot serve as a basis for a section 1983 claim for the many reasons stated supra, it is recommended that plaintiff not be provided an opportunity to amend.” Gerken, 2024 WL 4608307, at *12. 19 7. Federal Consumer Credit Protection Act *15 The Federal Consumer Credit Protection Act (“FCCPA”) sets forth the “maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment,” 15 U.S.C. § 1673 (a), and prescribes that “[n]o court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section.” 15 U.S.C. § 1673 (c). The provisions of this statute are enforced through the “Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor.” 15 U.S.C. § 1676. Plaintiff alleges that the child support order entered against him is a “excessive wage garnishment” in violation of the FCCPA. Dkt. No. 1-1 at 2-3. However, plaintiff “cannot pursue his claims under the [FCCPA] because there is no private right of action under these statutes.” Corrado v. New York Off. of Temp., No. 15-CV-7316 (SJF)(AYS), 2016 WL 3181128, at *6 (E.D.N.Y. June 2, 2016) (citing Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d 491, 501 (S.D.N.Y. Mar. 6, 2015)) (holding that no private right of action under 15 U.S.C. § 1673, noting that the section is enforced exclusively by the Secretary of Labor) (citing Long Island Trust Co. v. U.S. Postal Serv., 647 F.2d 336, 341 (2d Cir. 1981)); see also Bush v. Frazier, No. 2:18-CV-00732 (SGC), 2019 WL 3305145, at *9 (N.D. Ala. July 23, 2019) (“Courts have held no express or implied private right of action exists under the garnishment provisions of the Consumer Credit Protection Act, which are enforced by the Secretary of Labor.”) (citations omitted); Colbert v. Roling, 233 F. App'x 587, 590 (8th Cir. 2007) (“[I]t follows that there is no private right of action under § 1673 as well. The district court properly dismissed Colbert's action for the alleged violation of § 1673.”). Therefore, the undersigned alternatively recommends dismissal of this claim to due the lack of a private right of action under the FCCPA, and in turn, dismissal for lack of subject matter jurisdiction without opportunity to amend. III. Leave to Amend Generally, “[a] pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gerken, 2024 WL 4608307, at *15 (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation omitted)). “However, if the problems with a complaint are ‘substantive’ rather than the result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would be ‘futile’ and ‘should be denied.’ ” Id. (citing Edwards v. Penix, 388 F. Supp. 3d 135, 144-45 (N.D.N.Y. 2019)) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Here, the Rooker-Feldman doctrine, Younger abstention doctrine, Domestic Relations abstention doctrine, and Section 1673 issues cannot be cured by a better pleading. The claims against the Schenectady County Child Support Collection Unit, the Division of Child Support Enforcement Newport News District Office, and the Schenectady County Family Court are barred by sovereign immunity. The claim against Reilly is barred by sovereign immunity and absolute immunity. Additionally, the claim against Wagner is barred by judicial immunity, and the claim against Bauscher must be dismissed because she is not a state actor for the purposes of Section 1983. Accordingly, it is recommended that the complaint be dismissed in its entirety without prejudice and without opportunity to amend. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 173 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 IV. Conclusion *16 WHEREFORE, for the reasons set forth herein, it is hereby ORDERED, that plaintiff's application for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further ORDERED, that the Clerk amend the caption to: (1) correct the spelling of the names of defendants Schenectady County Child Support Unit and Division of Child Support Enforcement Newport News District Office; and (2) add as defendants the Schenectady County Family Court; Bruce J. Wagner, Support Magistrate; Dylan Reilly, Deputy County Attorney; and Rebecca Bauscher, child attorney; and it is RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be DISMISSED in its entirety without prejudice and without opportunity to amend for lack of subject matter jurisdiction, and it is ORDERED, that the Clerk serve a copy of this Report- Recommendation and Order in accordance with Local Rules. IT IS SO ORDERED. 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. 20 All Citations Slip Copy, 2025 WL 895035 Footnotes 1 This matter was referred to the undersigned for Report-Recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). 2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and costs he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees. 3 These requirements apply equally to non-prisoner pro se litigants. See N.D.N.Y. L.R. 72.3(d) (“Unless the Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred to a Magistrate Judge for the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an application to proceed in forma pauperis is filed.”). 4 Hereinafter, “Fed. R. Civ. P.” 5 All unpublished decisions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided to plaintiff. The Court does not, however, provide a copy of plaintiff's 2022 decision before this Court as he would have been provided copies as part of that litigation. See 9 n.10, infra. 6 Plaintiff submitted various documents as exhibits or attachments to his complaint. See Dkt. Nos. 1-1, 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 1-8, 1-9, 1-10, 1-11, 1-12, 1-13, 1-14. These exhibits have also been reviewed in connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“A complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint.”) (internal quotation marks and citations omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 174 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 7 Plaintiff also cites, without explanation or support, to other laws and statutes within his complaint, including Fed. R. Civ. Pro. 4, 60(b)(4), 73, and 5(b)(2)(c); 22 NYCRR § 205.32; 42 U.S.C. §§ 1301(A) 37, (A)(1) and 659(a); 18 U.S.C. §§ 1589, 1001; 26 U.S.C. § 7434; U.S. Const. art. VI, cl. 2; however, it is unclear plaintiff's reasoning for citing them or how such laws support a claim for relief. See Dkt. No. 1-1 at 3, 5, 7-9; Dkt. No. 1-2 at 1; Dkt. No. 3 at 1, 5; Dkt. No. 4 at 3-4; Dkt. No. 5 at 1; Dkt. No. 7 at 1-2; Dkt. No. 8 at 1-2. Thus, he fails to set for any viable claims on these grounds. 8 Plaintiff's complaint identifies these entities as “Schenectady Child Support Unite [sic]” and “Div. of Child Support Enforement [sic] New Port [sic] News District Office.” Dkt. No. 1 at 2. 9 Rule 10(a) of the Federal Rules of Civil Procedure provides that “the title of the complaint must name all the parties.” FED. R. CIV. P. 10(a). Thus, by not including these defendants in the caption but expressing in his attachments to his complaint that he wishes to proceed against these individuals, plaintiff is in violation of Rule 10(a). Affording plaintiff due solicitude, it is clear he seeks to proceed against the Schenectady County Family Court; Bruce J. Wagner, Support Magistrate; Dylan Reilley, Deputy County Attorney; and Rebecca Bauscher, child attorney, based on the list of “[p]eople [plaintiff] want to sue in law suit [sic],” Dkt. No. 1-1 at 9, and the names highlighted and starred in the exhibits attached to his complaint. See Dkt. No. 1-3. Thus, on balance, the undersigned will review such claims. 10 Plaintiff commenced an essentially identical action against defendants Wagner, Reilly, and Bauscher on August 10, 2022. See Phillips v. Wagner, et al., 1:22-CV-833 (DNH/ML), report and recommendation adopted, 2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022), appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir. Apr. 25, 2023) (In this action, plaintiff inverted Reilly Dylan's first and last names and spelled Dylan differently, but contextually, it is clear it is the same person). Following initial review, that case was dismissed without prejudice but without opportunity to amend due to lack of subject matter jurisdiction, and judgment was entered in favor of defendants. See Phillips v. Wagner, et al., 1:22-CV-833 (DNH/ML) at Dkt. No. 9. A plaintiff cannot commence a new action seeking to review the same issues that this Court already decided against him. Thus, collateral estoppel may be another alternative basis upon which this Court may dismiss this complaint. See Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (“[C]ollateral estoppel applies when: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was a full and fair opportunity for litigation in the prior proceeding, and (4) the issues previously litigated were necessary to support a valid and final judgment on the merits.”) (internal quotation marks and citations omitted); See, e.g., Rosenberg v. Shemiran Co., LLC, No. 20-CV2259 (LLS), 2020 WL 1953627, at *3 (S.D.N.Y. Apr. 22, 2020) (“Generally, “dismissals for lack of subject matter jurisdiction are not on the merits and are not accorded [preclusive] effect.”) Thompson v. Cnty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994) (citation omitted); see St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir. 2000) (same). But the doctrine of issue preclusion bars relitigation of the specific issues that the prior court decided in reaching its jurisdictional determination. See Stengel v. Black, 486 F. App'x 181, 183 (2d Cir. 2012) (“Although a dismissal for lack of jurisdiction is not an adjudication of the merits of a claim, such a dismissal precludes re-litigation of the issue it decided.”) (internal citation omitted); St. Pierre, 208 F.3d at 401 (prior dismissal for lack of standing – a jurisdictional issue – did not bar subsequent claim but did bar relitigation of specific finding that plaintiff was not loss payee on insurance policy). Because jurisdictional determinations have preclusive effect, “[a] party that has had an opportunity to litigate the question of subject-matter jurisdiction may not ... reopen that question in a collateral attack upon an adverse judgment.” Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982). A prior dismissal based on lack of subject matter jurisdiction precludes the same action based on the same facts unless the “jurisdictional defect has been cured or loses its controlling force.” In re Motors Liquidation Co., ECF 1:16-CV-6927, 17, 2017 WL 3491970, at *7 (S.D.N.Y. Aug. 14, 2017) (quoting Park Lake Res. Ltd. Liab. Co. v. USDA, 378 F.3d 1132, 1137 (10th Cir. 2004) (internal quotation marks omitted)).”. However, in connection with the current action, plaintiff has provided this Court with only portions of orders and filings relating to his child support obligations. He submits Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 175 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 the signature page from what appears to be an order related to the collection of child support dated May 22, 2024; an order dated July 14, 2022; page three of what appears to be plaintiff's motion to dismiss in family Court relating to his failure to file proof of service on the petitioner in the family court action and the Support Collection Unit; a letter dated August 2, 2023, from the county attorney to Magistrate Wagner providing a proposed order of support which the county attorney asks Magistrate Wagner to adopt (order is not attached); and a signature page of an order from Support Magistrate Wagner dated August 7, 2023. See Dkt. No. 1-3 at 1. Although it is clear that plaintiff seeks review of orders relating to child support obligations and the garnishment of wages, and appears to challenge them on the same grounds, the undersigned does not have sufficient information to determine the procedural posture of the orders of which plaintiff seeks review in this action to be able to compare them those in the 2022 case. The undersigned determines that it his highly likely that collateral estoppel bars this action as the issues of which he seeks review appear identical, but without the full orders before the Court, the undersigned is of the opinion that it cannot be determined with certainty whether collateral estoppel applies to the issues plaintiff raises in this action. Regardless, as this matter is subject to dismissal on the many alternative grounds addressed herein, the lack of certainty on this ground does not impact the undersigned's analysis or recommendation. 11 Plaintiff refers to the underlying court as a county court. See Dkt. No. 1 at 4. The logic applies the same whether the Court is deemed a family court or a county court. 12 “While Kugler spoke in the context of criminal prosecutions, the same standard applies in the civil context.” Diamond “D” Const. Corp., 282 F.3d at 201 (citing Moore v. Sims, 442 U.S. 415, 433 (1979)). 13 N.Y. C.P.L.R. 7803 provides that: The only questions that may be raised in a proceeding under this article are: 1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. N.Y. C.P.L.R. 7803. 14 “An Article 78 petition is the proper vehicle for challenging state actions taken in violation of the Federal Constitution.” Rhee-Karn, 2014 WL 4494126, at *5 (citations omitted). 15 “A dismissal for lack of subject matter jurisdiction must be without prejudice, because without jurisdiction, the district court lacks the power to adjudicate the merits of the case.” McKie v. Kornegay, No. 21-1943, 2022 WL 4241355, at *2 (2d Cir. Sept. 15, 2022) (summary order) (internal quotations omitted) (quoting Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)). 16 VIRGINIA DEPARTMENT OF SOCIAL SERVICES, https://www.dss.virginia.gov/family/dcseoffices.cgi? LimitID=228 [Last visited on Mar. 14, 2025]. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 176 of 240
Phillips v. Schenectady Child Support Unite, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 17 The Second Circuit has ruled that “the New York State Unified Court System is unquestionably an arm of the State, and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). 18 A support magistrate is similar to a judge and has the power to make decisions about child support ....” NEW YORK STATE UNIFIED COURT SYSTEM, “Child Support Basic” https://www.nycourts.gov/LegacyPDFS/ courts/5jd/family/Child-Support-Basics-5th-Judicial-District.pdf [Last visited on Mar. 14, 2025]. 19 In addition to the defendants discussed above that plaintiff explicitly named in his list of parties that he wanted to sue, plaintiff also starred and highlighted the name of Jason A. Sidoti, Chief Clerk (“Sidoti”). See Dkt. No. 1-3 at 6. However, plaintiff does not include Sidoti in the list of individuals he wanted to sue, include him in the parties section of the complaint or caption, or set for any facts or claims against him anywhere in the complaint or attachments thereto. The only mention of Sidoti in the complaint is the copy of the proposed order where his name is highlighted and starred. See Dkt. No. 1-3 at 6. The highlight and stars alone are not enough to name Sidoti as a defendant or raise a claim for relief. The undersigned concludes that, as to Sidoti, plaintiff's complaint “in its current form fails to state a claim for relief and fails to state the Court's subject matter jurisdiction” Ajamia, 2014 WL 6078425, at *7; see 28 U.S.C. §§ 1915(e) and 1915A. However, even if plaintiff had properly named Sidoti as a defendant and raised facts and claims against him, any claims would be dismissed under the doctrine of quasi-judicial immunity. See Gerken, 2024 WL 4608307, at *10 (“Judicial immunity has been extended to court clerks and others who perform functions closely associated with the judicial process when they are performing discretionary acts of a judicial nature which are essential to the judicial process, especially the filing of court documents and managing a court's calendar.”) (internal quotations and citations omitted); McKnight v. Middleton, 699 F. Supp. 2d 507, 526 (E.D.N.Y. 2010), aff'd, 434 F. App'x 32 (2d Cir. 2011) (summary order) (“Clerk's Office activities of filing and docketing legal documents are an integral part of the judicial process and are, thus, entitled to absolute immunity.”) (internal quotations omitted). 20 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 FED. R. CIV. 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). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 177 of 240
Phillips v. Schenectady County Child Support Unit, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 1191320 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Julius PHILLIPS, Plaintiff, v. SCHENECTADY COUNTY CHILD SUPPORT UNIT, Division of Child Support Enforcement Newport News District Office, Schenectady County Family Court, Bruce J. Wagner, Dylan Reilly and Rebecca Bauscher, Defendants. 1:24-cv-853 (BKS/PJE) | Signed April 24, 2025 Attorneys and Law Firms Plaintiff pro se: Julius Phillips, Schenectady, NY 12307. MEMORANDUM-DECISION AND ORDER Brenda K. Sannes, Chief United States District Judge: *1 On July 5, 2024, Plaintiff pro se Julius Phillips filed this action under 42 U.S.C. § 1983, alleging that family court child support orders violated his Fourth, Fifth, Seventh, and Fourteenth Amendment rights. (Dkt. No. 1). Plaintiff sought leave to proceed in forma pauperis. (Dkt. No. 2). This action was referred to United States Magistrate Paul J. Evangelist who, on March 24, 2025, granted Plaintiff's motion to proceed in forma pauperis, and recommended dismissal without prejudice and without opportunity to amend for lack of subject matter jurisdiction. (Dkt. No. 4). Magistrate Judge Evangelista advised Plaintiff that under 28 U.S.C. § 636(b)(1), he had “fourteen (14) days within which to file written objections to the foregoing report” and that “failure to object ... within fourteen days will preclude appellate review.” (Id. at 38). Plaintiff did not file any objections. As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment. Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report- Recommendation in its entirety. For these reasons, it is hereby ORDERED that Magistrate Judge Evangelista's Report- Recommendation (Dkt. No. 4) is ADOPTED; and it is further ORDERED that plaintiff's complaint (Dkt. No. 1) is DISMISSED in its entirety without prejudice and without opportunity to amend for lack of subject matter jurisdiction; and it is further ORDERED that the Clerk is directed to close this case and serve this Memorandum-Decision and Order on Plaintiff in accordance with the Local Rules. IT IS SO ORDERED. All Citations Slip Copy, 2025 WL 1191320 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 178 of 240
Pierce v. Homecomings Financial, LLC, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2017 WL 5991750 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Harriett PIERCE, Plaintiff, v. HOMECOMINGS FINANCIAL, LLC; Residential Funding Company, LLC; Residential Accredit Loans, Inc.; Deutsche Bank Trustcompany Americas, as Trustee for Securitized Trust Rali-Series 2007-QS4 Trust; Mortgage Electronic Registration System (“MERS”); and John Does 1 Through 100 Inclusive, et al., Defendants. 1:17-CV-882 (BKS/CFH) | Filed 12/04/2017 Attorneys and Law Firms Harriet Pierce, Saratoga Springs, New York, Pro se. Patrick G. Broderick, Greenberg Traurig, LLP, 200 Park Avenue, 39th Floor New York, New York 10166 For Defendant Deutsche Bank Trust Company Americas as Trustee for Securitized Trust Rali-Series 2007-QS4 Jantra Van, Roy Robert, Guttmann Zeichner Ellman & Krause LLP, 1211 Avenue of the Americas, New York, New York 10036, For Defendants Residential Funding Company, LLC, Homecomings Financial LLC, and Residential Accredit Loans, Inc. MEMORANDUM-DECISION AND ORDER Brenda K. Sannes U. S., District Judge I. BACKGROUND *1 On August 11, 2017, Plaintiff pro se Harriet Pierce filed a Complaint challenging a foreclosure proceeding involving her real property located at 138 Jefferson Street, Saratoga Springs, New York. (Dkt. No. 1). Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”). (Dkt. No. 4). On August 28, 2017, Plaintiff filed a motion for a temporary restraining order (“TRO”) seeking to prevent Defendants from selling her home or subjecting her to eviction. (Dkt. No. 11). On August 30, 2017, the Court issued an Order setting response and reply deadlines with respect to the motion for a TRO and noting that the Complaint failed to allege federal question or diversity jurisdiction. (Dkt. No. 12). The Court therefore ordered the parties to address the issue of subject matter jurisdiction. (Id. at 2). On September 28, 2017, Defendant Deutsche Bank Trust Company Americas, as Trustee for Securitized Trust Rali-Series 2007-QS4 Trust (“Deutsche Bank”), filed a motion to dismiss the Complaint under Rule 12(b)(1)-(3) and (6) and a response in opposition to Plaintiff's motion for a TRO. (Dkt. Nos. 14, 15). On October 23, 2017, Plaintiff filed a “Demand for Judicial Review.” (Dkt. No. 23). In a Report-Recommendation and Order entered on October 25, 2017, United States Magistrate Judge Christian F. Hummel granted Plaintiff's request to proceed IFP but recommended that the Complaint be dismissed with leave to amend “to the extent plaintiff may be able to demonstrate this Court's diversity jurisdiction or federal question jurisdiction.” (Dkt. No. 24, at 8). Magistrate Judge Hummel advised Plaintiff that under 28 U.S.C. § 636(b)(1), she had fourteen days within which to file written objections to the report and that the failure to object to the report within fourteen days would preclude appellate review. (Id.). On November 8, 2017, Plaintiff filed objections to the Report-Recommendation (Dkt. No. 27) and a proposed 1 Amended Complaint (Dkt. No. 28). Deutsche Bank and Defendant Mortgage Electronic Registration System (“MERS”) subsequently filed motions to dismiss the Amended Complaint under Rule 12(b)(1)-(2) and (6). (Dkt. Nos. 32, 35). For the reasons that follow, the Court adopts the Report- Recommendation and Order and dismisses the Complaint for failure to allege subject matter jurisdiction; concludes that the proposed Amended Complaint fails to allege a federal claim or diversity jurisdiction; and denies Plaintiff's motions for a TRO and judicial review and Deutsche Bank's motions to dismiss as moot. II. DISCUSSION A. Standard of Review 1. Objections to Report-Recommendation Plaintiff objects to the Magistrate Judge's conclusion that the Complaint fails to allege federal question or diversity jurisdiction. (Dkt. No. 27). Plaintiff also objects to the Magistrate Judge's exercise of authority in this case as Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 179 of 240
Pierce v. Homecomings Financial, LLC, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 well as his failure to address Deutsche Bank's motion to dismiss. This Court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F.Supp.3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper objection is one that identifies the specific portions of the [Report and Recommendation] that the objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.Supp.2d 290, 296 (E.D.N.Y. 2013) (quoting DuBois v. Macy's Retail Holdings, Inc., 11-cv-4904, 2012 WL 4060586, at *1, 2012 U.S. Dist. LEXIS 131678, at *3 (E.D.N.Y. Sept. 13, 2012)). Properly raised objections must be “specific and clearly aimed at particular findings” in the Report. Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id. “To the extent ... that the party makes only conclusory or general arguments ... the Court will review the Report strictly for clear error.” DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y. 2009). 2. Motion to Amend *2 As noted, following the Report-Recommendation, Plaintiff filed a proposed Amended Complaint, which the Court considers together with her objections. In general, leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (“An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).”). To survive a motion to dismiss, “a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’ ” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Since Plaintiff is proceeding pro se, the Court must also liberally construe the proposed Amended Complaint in her favor. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). B. Federal Question Jurisdiction Plaintiff objects to Magistrate Judge Hummel's conclusion that the Complaint failed to allege a basis for federal question jurisdiction, arguing that the Court has jurisdiction “to issue injunctive relief” under Section 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964(c). (Dkt. No. 27, at 6). On de novo review, the Court finds that Magistrate Judge Hummel properly concluded that the Complaint, which contains no reference to the civil RICO statute, or any language that could be construed as alleging a RICO claim, contained no federal question. Further, the proposed Amended Complaint, fails to advance allegations stating a plausible RICO claim. 2 The RICO statute, 18 U.S.C. § 1962(c), makes it “unlawful for any person employed by or associated with any enterprise ... to conduct or participate in the conduct of such enterprise's affairs through a pattern of racketeering activity.” To state a claim under § 1962(c), “a plaintiff must allege (1) conduct, (2) of an enterprise, (3) through a pattern (4) of racketeering activity, as well as injury to business or property as a result of the RICO violation.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 119 (2d Cir. 2013) (internal quotations and citation omitted). “Racketeering activity consists of the commission of a predicate act.” Aronov v. Mersini, No. 14-CV-7998 PKC, 2015 WL 1780164, at *3, 2015 U.S. Dist. LEXIS 51695, at *7 (S.D.N.Y. Apr. 20, 2015). The RICO statute sets forth a list of acts that qualify as racketeering activity and includes “any act which is indictable under [inter alia] ... [18 U.S.C] section 1341 (relating to mail fraud), 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud).” 18 U.S.C. § 1961(1)(B); see Beck v. Prupis, 529 U.S. 494, 497 n.2, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) (“Section 1961(1) contains an exhaustive list of acts of ‘racketeering,’ commonly referred to as ‘predicate acts.’ ”). *3 To the extent the Amended Complaint may be read to allege that Defendants formed an enterprise for the purpose of fraudulently depriving her of her real property, it fails to adequately plead commission of a predicate act. Though it alleges fraudulent conduct, the Amended Complaint does not identify which predicate act or acts listed in § 1961(1) (B) Defendants allegedly committed. In any event, “all allegations of fraudulent predicate acts ... are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b).” First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 178 (2d Cir. 2004). Rule 9(b) requires a plaintiff to “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b); see also ECA & Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009). In other words, a plaintiff must: “(1) detail the statements Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 180 of 240
Pierce v. Homecomings Financial, LLC, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir. 2004) (internal quotation marks omitted). “Allegations that are conclusory or unsupported by factual assertions are insufficient.” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007). Plaintiff alleges, among other things, that Deutsche Bank “concealed the material fact of possession of accepted ... lawful payments or securities ... in order to unjustly take into possession of plaintiffs' property” and that Defendant Homecomings Financial, LLC “concealed the fact that they were not a Federal Reserve Depository Bank,” the existence of a third-party “warehouse lender,” and the “terms of the [s]ecuritization [a]greements.” (Dkt. No. 1, at 13). While many of the allegations in the Complaint are detailed (though often incomprehensible), they fail to meet Rule 9(b)’s particularity requirements because they do not state when and where the statements were made and do not explain why the statements or omissions by Defendants were fraudulent. See Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999) (affirming dismissal of RICO claims for “failure to plead fraud with particularity” and noting that “[e]ven if we were to find that the time and content of [the pleaded] communications met the Rule 9(b) standard, plaintiffs' claim must be dismissed because they failed to allege how those statements were fraudulent”). Accordingly, there is no basis on which to find that the Complaint or proposed Amended Complaint adequately alleges federal question jurisdiction. C. Diversity Jurisdiction Magistrate Judge Hummel explained that because, according to the Complaint, both Plaintiff and Deutsche Bank are citizens of New York, regardless of the citizenship of the remaining Defendants, Plaintiff “cannot demonstrate complete diversity jurisdiction.” (Dkt. No. 24, at 5). In support of her objection to Magistrate Judge Hummel's conclusion with respect to diversity, Plaintiff submitted an affidavit stating that she is a “nonresident alien.” (Dkt. No. 27-2). The affidavit further states, however, that Plaintiff was born in New York “which is one of the sovereign States of the Union of several States joined together to comprise the confederation known as the United States of America” and lists her address as Saratoga Springs, New York. (Id. at 2, 6). Thus, Plaintiff's objection is without merit. See 28 U.S.C. § 1332(a)(1) (federal courts have subject matter jurisdiction on the basis of “diversity jurisdiction” “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States”). The proposed Amended Complaint, which names Trustco Bank as a Defendant, does not cure this deficiency; it alleges that Trustco Bank is headquartered in Glenville, New York. (Dkt. No. 28, at 2). Thus, there being, as discussed in Part II. B., no plausible federal claim in the proposed Amended Complaint, the Court declines to exercise jurisdiction over the remaining state-law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (“[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.”). D. Remaining Motions *4 Having concluded that the Complaint and proposed Amended Complaint fail to allege a basis for federal question or diversity jurisdiction, the Court need not reach Plaintiff's remaining arguments with respect to the Report- Recommendation and denies Plaintiff's motion for a TRO as well as the motions to dismiss by Deutsche Bank and MERS. The Court, however, adopts Magistrate Judge Hummel's recommendation that Plaintiff be given an opportunity to amend her complaint in the event she is able to demonstrate this Court's jurisdiction. III. CONCLUSION For these reasons, it is ORDERED that the Report-Recommendation and Order (Dkt. No. 24) is adopted in its entirety; and it is further ORDERED that the Complaint (Dkt. No. 1) and proposed Amended Complaint (Dkt. No. 28) are dismissed without prejudice; and it is further ORDERED that Plaintiff's motion for a TRO (Dkt. No. 11) and motion for judicial review (Dkt. No. 23) are denied as moot; and it is further ORDERED that all of the pending motions to dismiss (Dkt. Nos. 14, 32, 35) are denied as moot; and it is further Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 181 of 240
Pierce v. Homecomings Financial, LLC, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 ORDERED that if Plaintiff fails to file a proposed amended complaint demonstrating this Court's jurisdiction within thirty (30) days of the date of this Order, the Clerk is directed to close this case; and it is further ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2017 WL 5991750 Footnotes 1 As the Amended Complaint was filed more than 21 days after service of Deutsche Bank's Rule 12(b) motion, Plaintiff may amend her pleading “only with the opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a)(1)(B). Accordingly, the Court construes Plaintiff's submission as a motion to amend the complaint. 2 The Local Rules of the Northern District of New York require that when a civil RICO claim is asserted before this Court, “the party asserting such a claim shall file a RICO statement within (30) days of the filing of the pleading containing such a claim.” N.D.N.Y.L.R. 9.2. Plaintiff commenced this action on August 11, 2017, but has failed to file a RICO statement. Therefore, Plaintiff's RICO claim may be dismissed for this reason alone. See Amaker v. Kelley, No. 01 Civ. 877, 2009 WL 385413, at *11, 2008 U.S. Dist. LEXIS 123604, at *34 (N.D.N.Y. Feb. 9, 2009), aff'd, 399 Fed.Appx. 688 (2d Cir. 2010); Spoto v. Herkimer County Trust, No. 99 Civ. 1476, 2000 WL 533293, at *3 n.2, 2000 U.S. Dist. LEXIS 6057, at *9 n.2 (N.D.N.Y. Apr. 27, 2000). The RICO statement form is available at http://www.nynd.uscourts.gov/sites/nynd/files/general-ordes/GO14_0.pdf. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 182 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 3737780 United States District Court, N.D. New York. Susan L. POOLE; Thomas Clatterbuck; Sue Clatterbuck; Joseph S. Cochran; Brenda S. Cochran; Charles C. Manner; Dennis H. Owens; Brent Rogers; Robert Shaw; New York Animal and Farm, LLC; John Doe 1; John Doe 2; Jane Doe 2; John Doe 3; John Doe 4; John Doe 5; John Doe 6; John Doe 7; and Jane Doe 7, Plaintiffs, v. Brian BENDIXEN; Amber Brown; Karen Cartier; Earl Dehmey; James Kelleher; Sharad Marthur; Alex Bachelor; Martin Bates; Alan Bernon; Andrew Brummel; Kristen Coady; David Darr; Doug Glade; Keith Gomes; Brad Keating; Jackie Klippenstein; Monica Massey; Randy McGinnis; Pat Panko; Dennis Rodenbaugh; Rick Smith; Kevin Strathman; Edward Tilley; Jay Waldvogel; Greg Wickham; John Wilson; Larry Bailey; Bruce Bartley; William Besancon; Patricia Bikowsky; Kenneth Birker; Keith Broumley; Glen Easter; Craig Elder; Travis Fogler; Alan Gerratt; Gregory Gibson; Buster Goff; Larry Griffith; Larry Hancock; Dean Handy; Brian Hardy; Todd Hathorn; Jerrel Heatwole; Kent Herman; Neil Hoff; Garry Kibler; Chris Kraft; Lilah Krebs; Scott Lackey; Byron Lehman; Melvin Medeiros; Randy Mooney; Larkin Moyer; Dwight Nash; Doug Nuttelman; Thomas Oelrichs; Peter Olsen; Leroy Ornellas; Jacques Parent; Valeri Patten; Rick Podtburg; Jeff Raney; Brian Rexing; Terry Rowlett; Dan Senestraro; Ron Shelton; Larry Shover; Jerry Spencer; Sandy Stauffer; Steve Strickler; Perry Tjaarda; Case Van Steyn; David White; and John Woebler, Defendants. 5:20-CV-0697 (GTS/ATB) | Signed 08/24/2021 Attorneys and Law Firms LAW OFFICE of JOSHUA HAAR, Counsel for Plaintiffs, 1495 Paddock Road, West Edmeston, NY 13485, OF COUNSEL: JOSHUA HAAR, ESQ. BOND SCHOENECK & KING, PLLC, Counsel for Defendants, One Lincoln Center, Syracuse, NY 14202, OF COUNSEL: BRIAN J. BUTLER, ESQ. DECISION and ORDER Glenn T. Suddaby, Chief U.S. District Judge *1 Currently before the Court, in this civil Racketeer Influenced and Corrupt Organizations (“RICO”) action filed by the above-captioned dairy supply business, dairy company shareholder and seventeen dairy farmers (“Plaintiffs”) against the seventy-five above-captioned agents, managers and board members of a national dairy cooperative (“Defendants”), are Defendants’ motion to dismiss Plaintiffs’ Complaint for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6), and Defendants’ motion for sanctions pursuant to Fed. R. Civ. P. 11. (Dkt. No. 11; Dkt. No. 15.) For the reasons set forth below, Defendants’ motion to dismiss is granted, and Defendants’ motion for sanctions is denied. I. RELEVANT BACKGROUND A. Summary of Plaintiffs’ Complaint Generally, liberally construed, Plaintiffs’ Complaint alleges that the Dairy Farmers of America, Inc. (“DFA”), through Defendants (i.e., its agents, managers, and board members), used extortion to gain control of both the exclusive market for dairy farmers’ raw milk and the exclusive source of finished dairy products for retail in numerous areas of the country. (See generally Dkt. No. 1 [Plf.’s Compl.].) Based on these factual allegations, Plaintiffs’ Complaint claims that Defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 U.S.C. § 1964, and asks the Court to do the following: (1) declare Defendants liable for damages for racketeering; (2) order the receivership and subsequent divestiture of all processing operations owned or controlled by the DFA; (3) order the DFA be dissolved and any equity returned to its member farms, and that those member farms be released from any and all obligation to the DFA; (4) award damages, costs, and attorneys’ fees; and (5) award such further relief as the Court sees fit. (See generally id.) B. Three Alleged Predicate Acts of Extortion Plaintiffs’ Complaint and Civil RICO Statement alleges that Defendants committed three acts of extortion that qualify as predicate acts sufficient to support their RICO claims. (Dkt. No. 1; Dkt. No. 10.) 1 To provide context for the parties’ legal Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 183 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 arguments and the Court's analysis, the Court describes the alleged acts below. 2 1. Consent to Settle Antitrust Claims The first alleged predicate act originated in June 2014, when the DFA was facing a jury trial in Vermont on antitrust grounds. (Dkt. No. 1, at 42.) According to Plaintiffs, in 2016, after two unsuccessful attempts to settle the lawsuit, the DFA's leadership extorted dairy farmers (who were members of the DFA and had previously rejected the first two settlements) with threats that, if those dairy farmers did not sign and support the DFA's settlement, those farmers should consider switching to organic milk production and start looking for new processing plants, they would be dismissed from their cooperatives, and their cooperatives could lose access to DFA's nation-wide marketing entity Dairy Marketing Services 3 (“DMS”). (Id. at 43-44.) More than 1,200 farmers from the DFA and other entities, including “independent” dairy farmers, signed the DFA's form letters, and the suit against the DFA was settled and closed. (Id. at 45.) 2. Obtaining a Controlling Share of the National Milk Supply *2 The second alleged predicate act occurred when the DFA's leadership, emboldened by the earlier coerced settlement, used its control over national milk markets to make it impossible for a mid-sized plant to find milk outside of the DFA/DMS, or for an individual farmer or small cooperative to send its milk to such a plant. (Id. at ¶ 46.) According to Plaintiffs, the DFA managers gave independent farmers and cooperatives who had shipped their products through DMS a choice: market their milk through the DFA and agree to a “market adjustment” deduction from the farmers’ pay price, or lose market access. (Id. at 47.) Although the U.S. Department of Agriculture estimated the milk per- hundredweight cost of production to be $21.74 in 2018 (including land, equipment, and labor put in by unpaid owner/operator farmers), one Midwest cooperative's DFA market adjustment was more than 25% of its farmers’ per- hundredweight milk price of $16.00, and a northeast farm had to choose between losing $2.50 of its per-hundredweight price of $12.00 or having no market access for its milk. (Id. at 48-49.) The DFA managers also used the cooperative's position as the primary supplier of certain regional dairy processors to dictate the terms on which those processors could accept milk from smaller cooperatives or individual farmers, thereby substantially controlling the entire milk market without exercising direct ownership of it. (Id. at 50.) After the DFA absorbed another cooperative in 2019, Agri-Mark and its 850 members became the only significant alternative cooperative in the northeast. (Id. at 52.) However, Agri-Mark was and is forbidden from taking on members from the DFA without its express permission. (Id.) DFA managers were able to charge milk buyers over-market prices for milk products while simultaneously paying farmers less than the cost of production, because prospective dairy farmers had no viable option, aside from the DFA, to whom to sell their milk, and prospective milk processors had no other viable option, aside from the DFA, from which to buy milk. (Id. at 53.) Numerous dairy farmers, regardless of whether they are members of the DFA or other smaller “independent” cooperatives, were and are afraid to raise any concern out of a fear of retaliation from the DFA. (Id. at 54.) 3. Controlling the Nation's Largest Dairy Processing Network The third alleged predicate act concerned the DFA's relationship with Dean Foods. According to Plaintiffs, DFA's management demanded Dean Foods pay the DFA over- market prices in order to maintain access to its milk, which constituted approximately 60% of Dean Foods’ milk utilization. (Dkt. No. 1 at 56.) On or about November 12, 2019, Dean Foods filed for chapter 11 bankruptcy, listing the DFA as its largest trade creditor; the DFA was owed $173 million, while the second-largest trade creditor was owed $8 million. (Id. at 58.) During the time leading up to the Dean Foods bankruptcy filing, the DFA was, at substantially all times, Dean Foods’ primary supplier of USDA Grade A raw milk, and the amounts paid for the USDA Grade A raw milk were, at substantially all times, Dean Foods’ primary input cost. (Id. at 59.) When Dean Foods announced its bankruptcy filing, it also announced that it was in advanced discussions with the DFA to transfer substantially all of its assets to the DFA. (Id. at 63.) Despite the availability of financing for an out-of-court restructuring prior to the bankruptcy filing, Dean Foods expressed no real interest in restructuring to avoid bankruptcy. (Id. at 65.) Mr. Gary Ralphs served on PepsiCo's senior Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 184 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 management in 2015 when PepsiCo turned over a $206 million plant in Batavia, New York, to the DFA for thirty cents on the dollar following the bankruptcy of a PepsiCo dairy processing joint venture with Quaker Muller. (Id. at 64.) In May 2019, Mr. Ralphs became a Senior Vice President at Dean Foods in its Finance and Strategy Division; in September 2019, he became Dean Foods’ CFO, a position he held for the duration of the bankruptcy and sale to the DFA. (Id.) Dean Foods had no alternative source for the volume of milk which the DFA provided during its working relationship, and, even if it had located an alternative source for the volume of milk, Dean Foods could not materially breach or terminate its milk supply agreement with the DFA without incurring a $96 million penalty. (Id. at 66.) Had Dean Foods continued operating into 2021, the penalty would have expired without any obligation to pay any portion of the principal or interest. (Id.) C. Parties’ Briefing on Defendants’ Motion to Dismiss *3 Generally, in support of their motion to dismiss, Defendants assert the following six alternative arguments: (1) Plaintiffs’ Complaint should be dismissed for failure to comply with the timely filing of a RICO statement, pursuant to Local Rule 9.2 of the District's Local Rules of Practice, because Plaintiffs were required to file their RICO statement by July 22, 2020, and instead filed their RICO statement on September 3, 2020, approximately six weeks late, with no excuse or explanation for their tardiness; (2) Plaintiffs’ Complaint fails to satisfy fundamental notice and pleading requirements because (a) it fails to assert a single factual allegation about the conduct of any of the seventy-five (75) Defendants, and Plaintiffs’ RICO statement similarly fails to expressly allege that any one individual Defendant actually committed two predicate acts or otherwise conspired to commit a RICO violation, and (b) even where Plaintiffs’ RICO statement does refer to individual Defendants, it impermissibly lumps their conduct together without any differentiation or explanation, offering only vague, sweeping allegations that are plainly insufficient to satisfy Rule 8's minimum standard; (3) Plaintiffs lack standing to assert their RICO claim because (a) their Complaint does not allege any link between Defendants’ conduct and Plaintiffs in that their first and second alleged predicate acts do not include any allegations that Defendants caused any injury to Plaintiffs, (b) the third predicate act makes no reference to any action by Defendants nor any injury that they allegedly caused Plaintiffs, and, even if the Complaint had alleged that DFA's management pressured Dean Foods to overpay for DFA's milk (which in turn led Dean Foods to declare bankruptcy, which in turn injured Dean Foods’ shareholders), it is nevertheless insufficient to establish RICO standing for Plaintiff Poole or the dairy farmer Plaintiffs, (c) the law is well settled that a company's shareholders generally lack standing to assert a civil RICO claim, and Plaintiff Poole's suit as a shareholder fails to show she suffered any different individual harm as compared to other shareholders, and (d) nothing in Plaintiffs’ RICO statement asserts any particularized allegations about how any one of the individual Defendants proximately caused harm to any one of the individual Plaintiffs; (4) Plaintiffs have failed to sufficiently plead a RICO claim because (a) they have failed to allege a RICO conspiracy in that the alleged conspiracy of the operational agreement among the DFA's individual board members and managers to create and use the fear of personal failure to force substantially all U.S. dairy farmers to market their milk through Defendants’ enterprise fails to allege that Defendants knowingly conspired to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity, (b) Plaintiffs have not adequately alleged a substantive RICO violation in that (i) their Complaint fails to allege which predicate act Defendants committed, and the civil RICO statement also fails to allege that any one Defendant committed two predicate acts, (ii) none of the predicate acts alleged by Plaintiffs qualifies as a RICO extortion under the Hobbs Act given that the use of economic fear as leverage to drive a hard bargain in an ordinary commercial relationship does not support a RICO claim based on extortion, (iii) even if the predicate acts were true and timely (which they are not), the first and second predicate acts cannot constitute extortion under the Hobbs Act given that Defendants’ conduct was lawful hard-bargaining, and Plaintiffs did not have any “preexisting right” or entitlement to do business with the DFA, and (iv) Plaintiffs third predicate act, even if true, alleges that Defendants committed extortion against a third party, not Plaintiffs, and, in any event, the alleged conduct does not constitute extortion under the Hobbs Act, (c) Plaintiffs’ Complaint fails to allege a pattern of racketeering in that it fails to allege that any Defendant committed two cognizable predicate acts of extortion, and (d) Plaintiffs have not sufficiently alleged Defendants’ relationship to a RICO enterprise in that Plaintiffs fail to pled the existence of an enterprise separate and apart from the DFA, which is insufficient as a matter of law; (5) Plaintiffs have failed to establish personal jurisdiction over Defendants because (a) Plaintiffs fail to allege facts plausibly suggesting that a specific Defendant resides in, is found in, has an agent in, or transacts his or her affairs in the Northern District of New York, and (b) Plaintiffs’ substantial business standard Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 185 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 is inapplicable to establish personal jurisdiction for RICO claims; and (6) the claim brought by the anonymous John and Jane Doe Plaintiffs should be dismissed because there is no conceivable privacy concern that could justify any Plaintiff proceeding anonymously. (See generally Dkt. No. 11, Attach. 3 [Defs.’ Mem. of Law].) Generally, in opposition to Defendants’ motion, Plaintiffs assert the following seven arguments: (1) their Complaint alleges both the direct and proximate cause of their RICO injuries because (a) the sequence between Defendants’ alleged extortion and Plaintiffs’ injury is direct in that Plaintiffs lost milk income as a result of Defendants’ extortion, and (b) Plaintiff Poole's loss of invested shares in Dean Foods is a personal and independent injury in that her loss of share value constituted a personal loss to her; (2) Plaintiffs’ Complaint provides fair notice to Defendants because (a) it sufficiently traces Plaintiffs’ injuries to each Defendant by initially listing each individual Defendant as an “agent,” “manager,” or “board member,” who “performed,” “directed,” or “aided and abetted” a conspiracy, and by subsequently describing which conduct was performed by individuals or groups of individuals, and (b) the relevant inquiry is what is the nature of each Defendant's participation in the unlawful agreement, not whether each Defendant committed each predicate act; (3) Plaintiffs’ Complaint alleges an unmistakable pattern of racketeering because (a) it alleges three predicate acts of extortion and explains how each successive act made full use of the leverage gained by the preceding acts, (b) the predicate acts cannot be characterized as the use of lawful economic fear as leverage to drive a hard bargain in an ordinary commercial relationship in that Plaintiffs’ fear extends beyond mere financial or business concerns due to Defendants’ comprehensive control of available milk markets and the distribution network; (4) Plaintiffs’ Complaint alleges a separate and distinct RICO enterprise because (a) it alleges that Defendants conspired to operate the DFA by a pattern of racketeering in order to build a personally controlled milk empire and that Defendants were acting on behalf of their own interests when engaging in their “empire building” activities, which are fundamentally different than the DFA's marketing activities, (b) although these empire-building activities benefited the DFA as a whole, they plainly did not benefit the DFA as a cooperative due to the severe injuries suffered by many of the DFA's member-owners, and (c) even where the distinction between Defendants’ milk-marketing and empire-building activities is less clear, the law cannot be read so as to merge the person and enterprise wherever some benefit from the person's illegal conduct can be attributed to the enterprise, or it would insulate racketeering under the very statute designed to eradicate it; (5) Plaintiffs’ Complaint establishes personal jurisdiction over each Defendant because corporate agents are subject to personal jurisdiction within a district if their activities in the district are outside of the corporations’ ordinary activities, and each Defendant has agreed to further an unlawful course of conduct outside of the DFA's ordinary activities, which is the factual scenario in this case; (6) Plaintiffs’ Complaint establishes jurisdiction over the claims of the John and Jane Doe Plaintiffs because a plaintiff may proceed under a pseudonym where his or her interest in anonymity outweighs the general public interest in disclosure as well as any prejudice to Defendants and, in this case, the relative interests weigh in favor of the anonymous Plaintiffs in that they are essentially whistle-blowers and Defendants face no prejudice that the issues raised in this case arise from Defendants’ own misconduct, which are not directed at any individual plaintiff or Doe Plaintiff; and (7) Plaintiffs’ claims are timely because (a) the statute of limitations runs for four years from the time the plaintiff discovers or reasonably should have discovered the alleged injury (not from the date of the alleged predicate acts) and here Plaintiffs did not reasonably discover the alleged injury until the DMS ceased operations in 2017, (b) Defendants’ objection to the RICO statement on timeliness grounds is moot in that they argue that Plaintiffs RICO statement “fails to aid Plaintiffs’ claims” and “largely rehashed generic, undetailed, and unspecific allegations,” and (c) in any event, both parties were working in good faith on other aspects of the case, and Defendants gained an additional three-and-a-half weeks to review the RICO Statement prior to filing their response to the Complaint, thereby nullifying any good-faith basis to challenge the RICO statement's timing. (See generally Dkt. No. 14 [Plfs.’ Mem. of Law].) *4 Generally, in reply to Plaintiff's opposition, Defendants repeat their original arguments, and clarify them as follows: (1) Plaintiffs’ Complaint should be dismissed for failure to comply with Local Rule 9.2 because (a) they were required to file their RICO Statement by July 22, 2020, and instead filed it on September 3, 2020, without requesting leave from the Court to file six weeks late, (b) Defendants’ view of the quality of Plaintiffs’ RICO Statement is irrelevant to its timeliness, and (c) while both parties were working on other aspects of the case, Plaintiffs’ deadline for filing their RICO Statement (or an agreement about extending the deadline) was never discussed; (2) Rule 8 of the Federal Rules of Civil Procedure requires the dismissal of Plaintiffs’ Complaint because Defendants’ conduct is impermissibly Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 186 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 lumped together, and Plaintiffs have not identified any other allegations in their RICO Statement (aside from their “grouping” of Defendants) that provide any greater notice to Defendants of their alleged misconduct; (3) Plaintiffs have failed to establish RICO standing by failing to allege that (a) they fail to allege that Defendants, alone or as a group, proximately caused an injury to any Plaintiff, (b) the subset of dairy farmer-Plaintiffs who allege they have been injured by the extortion of milk-check deductions do not allege a single fact plausibly suggesting that their injury was caused by any Defendant, and (c) Plaintiff Poole has no standing as a shareholder of Dean Foods in that the law is well settled that a company's shareholders generally lack standing to bring a civil RICO claim; (4) Plaintiffs have failed to sufficiently plead a RICO conspiracy because (a) their Complaint fails to allege an agreement to commit a substantive RICO violation in that their allegation that Defendants maintained an “operational agreement among DFA's individual board members and managers to create and use the fear of personal failure as stewards ... to force substantially all U.S. dairy farmers to market their milk through Defendants’ enterprise” does not allege that Defendants agreed to commit racketeering, to commit predicate acts, or otherwise commit a substantive RICO violation, and (b) Plaintiffs have failed to allege the required elements of a substantive RICO violation in that (i) their Complaint does not allege the conspiracy included an agreement to commit cognizable predicate acts (given that the DFA, as a cooperative, can certainly engage in hard-bargaining with its members), and the second and third predicate acts do not even concern the DFA's own members, (ii) Second Circuit precedent explains that hard- bargaining can occur even where someone is desperate and the economic consequences of refusing an act are dire, and (iii) Plaintiffs’ first alleged predicate act is untimely because Plaintiffs’ allege that DFA's managers extorted them into signing letters in support of a settlement, thereby injuring the signees, outside of the four-year statute of limitations period, (c) Plaintiffs have failed to allege a pattern of racketeering activity in that they have failed to allege that a Defendant committed two cognizable predicate acts, and (d) Plaintiffs have failed to sufficiently allege a RICO enterprise in that (i) their Complaint alleges that the enterprise at issue is the DFA, and (ii) their Complaint does not allege that the enterprise at issue is some association-in-fact consisting of Defendants carrying out activities separate and apart from their work as DFA board members and employees; (5) Plaintiffs have failed to establish personal jurisdiction over each Defendant because, in a civil RICO action, a plaintiff must show that a specific defendant resides in, is found in, has an agent in, or transacts his or her affairs in the district, and Plaintiffs have failed to allege any of these activities occurred within the Northern District of New York; and (6) the claims brought by anonymous Plaintiffs should be dismissed because the law provides for anonymity only in “exceptional cases,” and this is no such “exceptional” case. (See generally Dkt. No. 16.) D. Parties’ Briefing on Defendants’ Motion for Sanctions Generally, in support of their motion for sanctions, Defendants assert the following two arguments. First, Defendants argue that sanctions should be imposed on both Plaintiffs’ counsel and Plaintiffs themselves because the Complaint is frivolous, unsupported in law, and unsupported in fact. (Dkt. No. 15, Attach. 6, at 14-23.) In support of this argument, Defendants reassert their arguments from their motion to dismiss. (Id.) Defendants also highlight the prior history of Plaintiffs’ counsel's with the DFA, specifically his prior involvement in Haar v. Allen, 687 F. App'x 93, 95 (2d Cir. 2017), the denial of his pro hac vice application in Carlin v. DairyAmerica, Inc., 09-CV-0430, 2019 U.S. Dist. LEXIS 115717, at *6-7 (E.D. Cal. July 11, 2019), and his attempt to intervene in the bankruptcy proceedings concerning Dean Foods, where, after withdrawing a motion under an apparent “threat of sanction,” he filed a “highly inflammatory and unprofessional amicus brief.” (Dkt. No. 15, Attach. 6, at 11-12.) Second, Defendants argue that Plaintiffs’ Complaint was filed for an improper purpose because the Complaint is strikingly inadequate on its face and it was filed in service of the personal agenda of Plaintiff's counsel, not in service of justice. (Id. at 23-24.) Generally, in opposition of Defendants’ motion for sanctions, Plaintiffs assert the following three arguments: (1) Plaintiffs have provided each Defendant with objective notice because (a) they have pled facts showing that each Defendant participated in an agreement to use their organization to extort other dairy industry participants to gain substantial control of the U.S. dairy industry, (b) each Defendant had authority over such activities, (c) each Defendant is subject to personal jurisdiction through purposeful availment, thereby satisfying Fed. R. Civ. P. 8, (d) the declarations submitted by Defendants in support of their motion support the fact that each Defendant was well aware of the extortion methods used within their organization, and (e) Defendant Heatwole's declaration is not credible because the evidence underlying Plaintiffs’ Complaint involves Defendant Heatwole telling struggling farmers to “find another job [they] like because [the] DFA runs the dairy industry;” (2) Plaintiffs possess standing Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 187 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 under the RICO act because (a) Defendants’ definition of a legal standard omits the causation elements that places Plaintiffs’ injuries within recoverable civil RICO injuries, (b) the predicate acts, by themselves, have no bearing on the statute of limitations issues, and Defendants attempt to conflate the actions of Defendants’ first predicate act with the injury suffered by Plaintiffs, and (c) a shareholder has standing to recover personal injuries, and Second Circuit precedent explicitly provides for the recovery of injuries suffered by a shareholder where stock is stolen and the individual suffers an injury personal to him or her and no other; and (3) the facts alleged by Plaintiffs leave no doubt that the threats alleged are distinctly personal, not merely economic, and that the relationship between a dairy farmer and a cooperative which controls all outlets for the farm's milk is anything but an ordinary commercial relationship, both in terms of duty and of comprehensive market control. (See generally Dkt. No. 17.) II. RELEVANT LEGAL STANDARDS A. Legal Standard Governing a Motion to Dismiss for Failure to State a Claim *5 It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review). Because such dismissals are often based on the first ground, some elaboration regarding that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a “short and plain statement” and requiring that the statement “show[ ]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2). On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above- described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212, n.17 (citing Supreme Court cases) (emphasis added). 4 The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-82 (2009). Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561-62. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id. *6 As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[D]etermining whether a complaint states Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 188 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 [internal quotation marks and citations omitted]. However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id. at 678, it “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation.” Id. (citations omitted). Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case. 5 B. Legal Standard Governing a Motion for Rule 11 Sanctions *7 Rule 11(b)(2) of the Federal Rules of Civil Procedure provides in pertinent part that, by presenting a complaint to the court, the attorney signing or filing the complaint certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. Fed. R. Civ. P. 11(b)(2). Rule 11(c)(1) provides in pertinent part that sanctions may be imposed on the attorney or any party that is “responsible for the violation.” Fed. R. Civ. P. 11(c)(1). “Rule 11 is targeted at situations where it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify, or reverse the law as it stands.” Rodrick v. City of Schenectady, 1 F.3d 1341, 1350 (2d Cir. 1993) (internal quotation marks omitted) (quoting Associated Indem. Corp. v. Fairchild Indus., 961 F.2d 32, 34 [2d Cir. 1992]). Because the inquiry must be “reasonable under the circumstances,” liability for Rule 11 violations “requires only a showing of objective unreasonableness” on the part of the attorney or party. Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir. 1997) (emphasis omitted); accord, ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 150 (2d Cir. 2009). C. Legal Standard Governing Civil RICO Claims It is “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). Section 1962(d) applies the same prohibitions to a defendant who conspires to violate Section 1962(c). Malvar Egerique v. Chowaiki, 19-CV-3110, 2020 WL 1974228, at *7 (S.D.N.Y. Apr. 24, 2020). Section 1964 establishes a private right of action for individuals who are harmed by racketeering activity. 18 U.S.C. § 1964. This private right of action permits a plaintiff to bring a RICO claim for sustaining injuries “in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Generally, a plaintiff bringing a civil RICO claim under “Section 1962(c) must allege that (1) the defendant has violated the substantive RICO statute, and (2) the plaintiff was injured in his business or property “by reason of a violation of section 1962.” Malvar Egerique, 2020 WL 1974228, at *7 (citing Moss v. Morgan Stanley, Inc., Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 189 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 719 F.2d 5, 17 [2d Cir. 1983] [citing 18 U.S.C. § 1962(c)]). More specifically, to assert a civil RICO claim under Section 1962(c), a plaintiff must allege the following elements: “(1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). Additionally, a plaintiff asserting a civil RICO claim must plead facts plausibly suggesting a resulting “domestic injury” to their business or property. RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 2111 (2016). *8 Regarding the second element, an “enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). To allege an enterprise, a plaintiff must allege an “ongoing organization, formal or informal” and that “the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583 (1981). In particular, a RICO enterprise must be “an entity separate and apart from the pattern of activity in which it engages.” Turkette, 452 U.S. at 583. The Second Circuit has “long recognized [that] the plain language and purpose of the statute contemplate that a person violates the statute by conducting an enterprise through a pattern of criminality. It thus follows that a corporate person cannot violate the statute by corrupting itself.” Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir. 2013) (citing Bennet v. U.S. Tr. Co. of N.Y., 770 F.2d 308, 315 [2d Cir. 1985]). Accordingly, a plaintiff alleging a civil RICO claim must allege the existence of two distinct entities, a person, and an enterprise. Chowaiki, 2020 WL 1974228, at *8; Cruz, 720 F.3d at 120. Regarding the third and fourth elements, to sufficiently allege a “pattern of racketeering activity,” a plaintiff must allege at least two acts of “racketeering activity” that occur within ten years of each other. 18 U.S.C. § 1961(5). “Racketeering activity” refers to the predicate acts necessary to establish a RICO claim and includes extortion. See 18 U.S.C. § 1961(1) (listing predicate acts that constitute a racketeering activity). To qualify as a “pattern” of racketeering activity, the predicate acts “must be from the crimes listed in [Section] 1961(1) and they must be ‘related, and ... amount to or pose a threat of continued criminal activity.’ ” Westester Cnty. Indep. Party v. Astorino, 137 F. Supp. 3d 586, 608 (S.D.N.Y. 2015) (emphasis in original) (quoting Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 [2d Cir 1999]). “ ‘It is this factor of continuity plus relationship which combines to produce a pattern.’ ” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989) (emphasis in original) (quoting Sedima, 473 U.S. at 496 n.4). Regarding the relationship factor, for predicate crimes to be considered related to each other under RICO, they must be related to both each other (termed “horizontal relatedness”) and the enterprise as a whole (“vertical relatedness”). Reich v. Lopez, 858 F.3d 55, 60-61 (2d Cir. 2017 (citing United States v. Cain, 671 F.3d 271, 284 [2d Cir. 2012]). “Vertical relatedness, which entails the simpler analysis, requires only ‘that the defendant was enabled to commit the offense solely because of his position in the enterprise or his involvement in or control over the enterprises’ affairs, or because the offense related to the activities of the enterprise.’ ” Reich, 858 F.3d at 61 (quoting United States v. Burden, 600 F.3d 204, 216 [2d Cir. 2010]). “[P]redicate acts are horizontally related when they ‘have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Id. at 61 (emphasis in original) (quoting H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 [1989]). Therefore, “when dealing with an enterprise that is primarily a legitimate business ... courts must determine whether there is a relationship between the predicate crimes themselves’ and that requires a look at, inter alia, whether the crimes share ‘purposes, results, participants, victims, or methods of commission.’ ” Id. (quoting H.J., 492 U.S. at 240). Regarding the continuity factor, “[t]o satisfy continuity, the plaintiff must establish either ‘a series of related predicate acts extending over a substantial period of time’ (‘closed- ended continuity’) or ‘a threat of continuing criminal activity’ (‘open-ended continuity’). Malvar Egerique, 2020 WL 1974228, at *9 (quoting Cofacredit, S.A., 187 F.3d at 242). “RICO targets conduct that ‘amounts to or poses a threat of continued criminal activity.’ ” Reich, 858 F.3d at 60 (alterations omitted) (quoting H.J., 492 U.S. at 239). Closed-ended continuity is “primarily a temporal concept” id. (quoting Spool v. World Child Int'l Adoption Agency, 520 F.3d 178, 184 [2d Cir. 2008]), “and it requires that the predicate crimes ‘extend over a substantial period of time’ ” id. (quoting H.J., 492 U.S. at 242). Generally, the Second Circuit “requires that the crimes extend over at least two years.” Id. (citing Spool, 520 F.3d at 184). However, criminal activity that by its nature projects into the future with a threat of repetition is considered open-ended continuity and can be established in several ways, including where the predicate acts were the regular way of operating that business, even if the business itself is primarily lawful. Id. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 190 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 *9 Finally, to allege a RICO conspiracy under 18 U.S.C. § 1962(d), a plaintiff must allege “a conspiracy to commit a substantive RICO violation.” Spool, 520 F.3d at 183 (emphasis added). In particular, “[b]ecause the core of a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990) (emphasis added). As a result, to properly allege a civil RICO conspiracy under Section 1962(d), a plaintiff must allege that the defendant “knew about and agreed to facilitate the [RICO] scheme.” Salinas v. United States, 522 U.S. 52, 66 (1997). Regarding the facilitation requirement, “a plaintiff must allege that the conspirator intended to further an endeavor that, if completed, would satisfy all of the elements of a substantive” criminal offense; however, it is sufficient for a plaintiff to allege that the “conspirator adopted the goal of furthering or facilitating the criminal endeavor.” Chowaiki, 2020 WL 1974228, at *8. III. ANALYSIS A. Whether Plaintiffs Have Standing to Pursue Their Claims After carefully considering the matter, the Court answers the question in the negative for the reasons stated in Defendants’ memoranda of law. (Dkt. No. 11, Attach. 3; Dkt. No. 16.) To those reasons, the Court adds the following analysis, which is intended to supplement and not supplant Defendants’ reasoning. To establish Article III standing, a plaintiff must demonstrate (1) an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that can likely be redressed by a favorable decision. Mantena v. Johnson, 809 F.3d 731, 731 (2d Cir. 2015). “The plaintiff ... bears the burden ‘clearly to allege facts [in his complaint] demonstrating that he is a proper party to invoke judicial resolution of the dispute.’ ” Steinberger v. Lefkowitz, 634 F. App'x 10, 11 (2d Cir. 2015) (quoting Warth v. Seldin, 422 U.S. 490, 518 [1975]). Plaintiffs must also show that they have “prudential standing,” which includes a “general prohibition on a litigant's raising another person's legal rights.” Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015). The Second Circuit has recognized that “[a] shareholder–even a sole shareholder– does not have standing to assert claims alleging wrongs to the corporation.” Jones v. Niagra Fronteir Transp. Auth. (NFTA), 836 F.2d 731, 736 (S.D.N.Y. 1983), aff'd, 742 F.2d 1440 (2d Cir. 1983). Rather, the plaintiff must have been injured in a “personal and individual way” in order to have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992). RICO standing is more rigorous than Article III standing. Denny v. Deutsche Bank AG, 443 F.3d 253, 266 (2d Cir. 2006). To establish standing to bring a civil RICO claim, a plaintiff must show the following: (1) a violation of Section 1962, (2) an injury to the plaintiff's business or property, and (3) that the defendant's violation was the proximate cause of the plaintiff's injury. Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir. 2003) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 112, 120-24 [2d Cir. 2003]). “Proximate cause for RICO purposes ... requires ‘some direct relation between the injury asserted and the injurious conduct alleged.’ ” Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 9 (2010) (quoting Holmes v. Secs. Investor Protection Corp., 503 U.S. 258, 268 [1992]). In this case, there are three groups of Plaintiffs: a dairy supply business (New York Animal and Farm, LLC), a shareholder of Dean Foods (Susan Poole), and seventeen dairy farmers. The Court first addresses the question of the standing of the dairy supply business, New York Animal and Farm, LLC (“Animal and Farm”). “[A] plaintiff does not have standing if he suffered an injury that was indirectly (and hence not proximately) caused by the racketeering activity or RICO predicate acts....” Baish v. Gallina, 346 F.3d 366, 373 (2d Cir. 2003) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 120-24 [2d Cir. 2003]). Here, Plaintiffs’ Complaint merely alleges that Plaintiff Animal and Farm's revenue stream was injured by Defendants’ racketeering activity in that Defendants indirectly caused Plaintiff Animal and Farm's injury. (Dkt. No. 1, at ¶ 3.) This allegation, without more, fails to plausibly suggest a direct relationship between the injury suffered and the injurious conduct alleged. Plaintiffs’ Complaint also fails to identify which of the seventy-five Defendants were involved in Plaintiff Animal and Farm's injury. In short, because Plaintiffs’ Complaint fails to allege that any of the seventy-five Defendants proximately caused the injury to Plaintiff Animal and Farm, the Court finds that Plaintiff Animal and Farm lacks standing to assert a civil RICO claim. *10 The Court next addresses the question of the standing of the shareholder Plaintiff, Susan Poole. For shareholders to have standing, they must plead facts plausibly suggesting that the loss of their shares value was “separate and distinct from the injury sustained by the corporation.” Manson v. Stacescu, 11 F.3d 1127, 1131 (2d Cir. 1993). Although Plaintiff Poole Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 191 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 argues that she suffered a personal injury through the loss of share value, she fails to plausibly suggest, let alone mention, how her loss is different from that of any other shareholder. Moreover, Plaintiff Poole's argument that “Dean Foods’ price and asset losses may not themselves be wholly derivative” is speculative. (Dkt. No. 14, at 8 [emphasis added].) For each of these two alternative reasons, the Court finds that Plaintiff Poole lacks standing to assert her civil RICO claim. Turning to the question of the standing of the dairy-farmer Plaintiffs, the Court also finds that they have failed to establish standing. Specifically, they have failed to plead facts plausibly suggesting that a single Defendant personally harmed a single dairy-farmer Plaintiff. Plaintiffs’ argument that there is no requirement to show Defendants personally harmed them is inaccurate. See Hemi, 559 U.S. at 9) (“A link [to establish proximate cause] that is too remote, purely contingent’ or indirec[t] is insufficient.”) (internal quotation marks omitted); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102-03 (1998) (explaining that the “irreducible constitutional minimum of standing” requires “causation–a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant.”) For these reasons, as well as the reasons stated in Defendants’ memoranda of law, the Court finds that Plaintiffs lack standing to sue the individual Defendants. In the interest of thoroughness, however, the Court will continue with its analysis Defendants’ other arguments for dismissal. B. Whether Plaintiffs Have Stated a RICO Claim After carefully considering the matter, the Court answers the question in the negative for the reasons stated in Defendants’ memoranda of law. (Dkt. No. 11, Attach. 3; Dkt. No. 16.) To those reasons, the Court adds the following analysis, which (again) is intended to supplement and not supplant Defendants’ reasoning. Taking Defendants arguments out of order, the Court finds that Plaintiffs’ Complaint fails to satisfy fundamental notice and pleading requirements under Fed. R. Civ. P. 8 (and Fed. R. Civ. P. 12[b][6]). Specifically, Plaintiffs’ Complaint fails to make a single allegation about the alleged conduct of any one of the seventy-five individual Defendants, and, even where the Complaint and civil RICO statement does refer to Defendants, it lumps their conduct together by listing each Defendant as an “agent,” “manager,” or “board member” who “performed,” “directed,” or “aided and abetted” a conspiracy without any differentiation or explanation as to which “agents,” “managers,” or board members engaged in each predicate act. (Dkt. No. 11, Attach. 3, at 17-18.) “Although Fed. R. Civ. P. 8 does not demand that a complaint be a model of clarity or exhaustively present the facts alleged, it requires, a minimum, that a complaint give each defendant ‘fair notice of what the plaintiff's claim is and the ground upon which it rests.’ ” Atauhene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001) (quoting Ferro v. Ry. Express Agency, Inc., 296 F.2d 847, 851 [2d Cir. 1961]). “By lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct, [Plaintiffs’] complaint failed to satisfy [Fed. R. Civ. P. 8’s] minimum standard.” Atauhene, 10 F. App'x at 34. Because Plaintiffs fail to provide the individual Defendants with any meaningful notice of the factual basis underlying Plaintiffs’ Complaint, they have failed to provide Defendants with sufficient notice under Fed. R. Civ. P. 8. *11 Alternatively, the Court finds that Plaintiffs’ Complaint warrants dismissal due to its failure to state a claim under Fed. R. Civ. P. 12(b)(6). Regarding Plaintiffs’ RICO conspiracy claim, even though Plaintiffs’ Complaint makes no mention of an alleged conspiracy, their allegation is first mentioned in Plaintiffs’ RICO statement. (Dkt. No. 1; Dkt. No. 10.) In particular, Plaintiffs allege that Defendants participated in a conspiracy by engaging in “an operational agreement among the DFA's individual board members and managers to create and use the fear of personal failure ... to force substantially all U.S. diary farmers to market their milk through Defendants’ enterprise.” (Dkt. No. 10, at 14.) “Because the core of a RICO conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.” Malvar Egerique, 2020 WL 1974228, at *8 (quoting Hecht, 897 F.2d at 25). Such a broad-sweeping allegation, without more, woefully fails to meet the plausibility standard articulated above in Part II.A. of this Decision and Order. Plaintiffs fail to allege any factual nature of an alleged operational agreement, the particular Defendants who participated in the planning of individual predicate acts, or any particular facts such as dates, times, or locations of meetings where such an agreement was discussed. Accordingly, the Court finds that Plaintiffs have failed to plead facts sufficiently alleging that Defendants engaged in a civil RICO conspiracy. Turning to Plaintiffs’ RICO claim, the Court also finds that Plaintiffs’ Complaint fails to allege a substantive RICO violation for the reasons stated in Defendants’ memoranda Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 192 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 of law. (Dkt. No. 11, Attach. 23-30; Dkt. No. 16, at 10-13.) For example, the Court finds that Defendants’ alleged conduct amounted to lawful hard-bargaining due to the fact that Plaintiffs did not have any “preexisting right” or entitlement to do business with the DFA. For this reason, as well as the reasons raised in Defendants’ memoranda of law, the Court finds that Plaintiffs have failed to plead facts plausibly suggesting Defendants committed a civil RICO violation. C. Whether the Court Lacks Personal Jurisdiction over Defendants After carefully considering the matter, the Court answers the question in the negative for the reasons stated in Defendants’ memoranda of law. (Dkt. No. 11, Attach. 3; Dkt. No. 16.) To those reasons, the Court adds the following analysis, which (again) is intended to supplement and not supplant Defendants’ reasoning. Section “1965(a) grants personal jurisdiction over an initial defendant in a civil RICO case to the district court for the district in which that person resides, has an agent, or transacts his or her affairs.” PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 71 (2d Cir. 1998). “In other words, a civil RICO action can only be brought in a district court where personal jurisdiction based on minimum contacts is established as to at least one defendant.” PT United Can Co. Ltd., 138 F.3d at 71. Section “1965(b) provides for nationwide service and jurisdiction over ‘other parties’ not residing in the district, who may be additional defendants of any kind ....” Id. Jurisdiction is not automatically conferred on the additional defendants; a plaintiff must show that the “ends of justice so require.” Id. To satisfy the “ends of justice” standard, a plaintiff must show that the RICO claim “could not otherwise be tried in a single action because no district court could exercise personal jurisdiction over all of the defendants.” Elsevier Inc. v. W.H.P.R., Inc., 692 F. Supp. 2d 297, 315 (S.D.N.Y. 2010) (collecting cases). As Defendants argue, Plaintiffs’ Complaint fails to allege that a specific Defendant resides in, is found in, has an agent in, or transacts his or her affairs in the Northern District of New York. (Dkt. No. 11, Attach. 3, at 32.) Although Plaintiffs argue that Defendants, acting as corporate agents, are subject to the Northern District's personal jurisdiction because their actions were outside of the DFA's ordinary activities, the Court disagrees. In particular, Plaintiffs’ Complaint fails to allege any facts plausibly suggesting that a single Defendant conducted business within the Northern District of New York. Plaintiffs also conspicuously chose to not name the DFA as a Defendant in this action. In any event, the fact that the DFA contracted business within the Northern District of New York, by itself, fails to support Plaintiffs’ allegations that any of the individual Defendants were involved in business transactions that were separate from the DFA's ordinary activities within this district. D. Whether Plaintiffs Violated Local Rule 9.2 *12 After carefully considering the matter, the Court answers the question in the negative for the reasons stated in Defendants’ memoranda of law. (Dkt. No. 11, Attach. 3; Dkt. No. 16.) To those reasons, the Court adds the following analysis, which (again) is intended to supplement and not supplant Defendants’ reasoning. Local Rule 9.2 requires a party asserting a claim under RICO to “file a RICO statement within thirty (30) days of the filing of the pleading containing such claim.” N.D.N.Y. L.R. 9.2. Because Plaintiffs filed their Complaint on June 22, 2020 (Dkt. No. 1), they were required to file their RICO statement by July 22, 2020; instead, Plaintiffs filed their RICO statement on September 3, 2020. (Dkt. No. 10.) On this ground alone, the Court can dismiss Plaintiffs’ Complaint. See Spoto v. Herkimery Cnty. Trust, 99-CV-1476, 2000 WL 533293, at *3 n.3 (N.D.N.Y. Apr. 27, 2000) (Munson, J.) (“Indeed, the Court would be justified to dismiss Plaintiff's complaint based upon their very untimely filing of their Local Rule 9.2 RIC Statement.”); Dicob v. Knuckles, 07-CV-1044, 2007 WL 3353089, at *1 (N.D.N.Y. Nov. 7, 2007) (McAvoy, J.) (extending the deadline only 20 days for a pro se litigant); cf. Pierce v. Homecomings Fin. LLC, 17-CV-0882, 2017 WL 5991750, at *2 n.2 (N.D.N.Y. Dec. 4, 2017) (Sannes, J.) (noting that Plaintiff had failed to file a Civil RICO Statement pursuant to Local Rule 9.2, and explaining that “Plaintiff's RICO claim may be dismissed for this reason alone”); Amaker v. Kelley, 01-CV-0877, 2009 WL 385413, at *11 (N.D.N.Y. Feb. 9, 2009) (Scullin, J.) (explaining that the failure to file a RICO Statement provides a threshold for dismissal of a plaintiff's RICO claim). Despite Plaintiffs’ arguments that their failure to abide by Local Rule 9.2 is moot and both parties were working in good faith on other aspects of the case, Plaintiffs’ arguments defy logic for two reasons. First, Defendants’ argument that Plaintiffs’ RICO statement is not helpful to Plaintiffs’ claims has no bearing on the “mootness” of Plaintiffs’ failure to abide by the Local Rules. Second, regardless of Plaintiffs’ good-faith work on other aspects of this case, they still needed to but failed to abide by a Local Rule, and further needed to but failed to seek the Court's Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 193 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 permission to file their RICO statement approximately six weeks late (or provide any explanation for failing to do so). Accordingly, the Court also dismisses Plaintiffs’ Complaint for failure to abide by Local Rule 9.2. E. Nature of Dismissal Finally, some discussion is appropriate regarding the nature of the dismissal in this action. Ordinarily, “[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted). 6 “[A]n opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely formal, such that any amendment would be futile.” Sorrentino v. Barr Labs. Inc., 09-CV-0591, 2010 WL 2026135, at *5 (May 20, 2010 N.D.N.Y.) (Suddaby, C.J.). *13 Here, because the Court's threshold ground for dismissal was Plaintiffs’ lack of standing, the Court must first determine whether that dismissal was pursuant to Fed. R. Civ. P. 12(b) (6) (which would permit a dismissal with prejudice) or Fed. R. Civ. P. 12(b)(1) (which would not permit a dismissal with prejudice). After carefully considering the matter, the Court finds that the dismissal was pursuant to Fed. R. Civ. P. 12(b)(6) for two reasons: (1) the determination was based on the allegations contained within the four corners of Plaintiffs’ Complaint and not based on findings of fact derived from documents outside of the four corners of Plaintiffs’ Complaint; and (2) the determination addressed the question whether the Court could grant relief to a party in Plaintiffs’ (alleged) position, not whether the Court could grant relief to any plaintiff given the claim asserted. Rent Stabilization Ass'n of City of New York v. Dinkins, 5 F.3d 591, 594 & n.2 (2d Cir. 1993). Having rendered that determination, the Court next must consider whether it appears that better pleading would cure the defects. The Complaint was 17 pages long, and it was effectively amended by the Civil RICO Statement and attachments (which were approximately 82 pages long). See, supra, note 1 of this Decision and Order. Despite the breadth and detail of facts alleged in those documents, the documents were conspicuously absent of either factual allegations establishing standing (the threshold ground for dismissal) or factual allegations plausibly suggesting a claim upon which relief can be granted (an alternative ground for dismissal). For these reasons, the Court finds that the defects in the Complaint are substantive and not merely formal, and that it does not appear that better pleading would cure these defects. F. Whether Defendants Are Entitled to Sanctions After carefully considering the matter, the Court answers this question in the negative for the reasons set forth below. The Court begins its analysis by noting that the one of Defendants’ arguments in support of sanctions essentially repeats their arguments in support of their motion to dismiss. (Dkt. No. 15, Attach. 6, at 14-23.) Instead of repeating itself, the Court relies on its analysis in Part III.B. of this Decision and Order to conclude that Plaintiffs’ Complaint has a basis in law and fact, and it did not present frivolous arguments unsupported by law or factual contentions lacking evidentiary support. See Fed. R. Civ. P. 11(b) (indicating that sanctionable conduct includes [1] presenting a paper for an improper purpose, [2] presenting frivolous arguments unsupported by law, [3] presenting factual contentions lacking evidentiary support, and [4] denying factual contentions where denial is not warranted on the evidence). Therefore, the Court rejects Defendants’ first argument. The Court also rejects Defendants’ argument that Plaintiffs’ Complaint was filed for an improper purpose. “In the Rule 12(b)(6) context, a court may take judicial notice of prior pleadings, orders, judgments, and other related documents that appear in the court records of prior litigation and that relate to the case sub judice.” Jianjun Lou v. Trutex, Inc., 872 F. Supp. 2d 344, 350 n.6 (S.D.N.Y. 2012); see also Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of a pleading in another lawsuit). “The Court may take judicial notice of a document filed in another court to establish the fact of such litigation and related filings, but not for the truth of the matters asserted in the other litigation.” Malvar Egerique, 2020 WL 1974228, at *7 (citing Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 [2d Cir. 2006]). The Court takes judicial notice of Plaintiffs’ Counsel's prior history with the DFA, as detailed in Defendants’ memorandum of law. (Dkt. No. 15, Attach. 6, at 11-12.) Although Plaintiffs’ Counsel's prior conduct and history with the DFA and Defendants presents a close call, the Court is unable to grant sanctions to Defendants. Plaintiffs’ Complaint, although deficient, raised legal and factually challengeable assertions, albeit barely. Plaintiffs and their counsel appear to have filed the current action in good faith on behalf of individual Plaintiffs, and not to harass the DFA and Defendants. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 194 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 *14 For these reasons, the Court denies Defendants’ motion for sanctions. ACCORDINGLY, it is ORDERED that Defendants’ motion to dismiss (Dkt. No. 11) is GRANTED; and it is further ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is DISMISSED with prejudice; and it is further ORDERED that Defendants’ motion for sanctions (Dkt. No. 15) is DENIED. All Citations Not Reported in Fed. Supp., 2021 WL 3737780, RICO Bus.Disp.Guide 13,545 Footnotes 1 The Court notes that, pursuant to Local Rule 9.2 of the District's Local Rules of Practice, a Civil RICO Statement shall be construed as an amendment to the pleadings. 2 Because Plaintiffs’ RICO Statement contains substantially the same allegations as their Complaint, the Court will cite Plaintiffs’ Complaint only. 3 According to Plaintiffs, DMS ceased operations in 2017. (Dkt. No. 1, at 46.) 4 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.). 5 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d. Cir. 2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint (and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where a document is not incorporated by reference, the court may neverless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 195 of 240
Poole v. Bendixen, Not Reported in Fed. Supp. (2021) RICO Bus.Disp.Guide 13,545 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 6 Accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) (“[T]he court need not grant leave to amend where it appears that amendment would prove to be unproductive or futile.”) (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (finding that denial was not an abuse of discretion where an amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“The problem with Cuoco's causes of action is substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile request to replead should be denied.”) (citation omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”) (citation omitted); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (“[W]here ... there is no merit in the proposed amendments, leave to amend should be denied”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 196 of 240
Spoto v. Herkimer County Trust, Not Reported in F.Supp.2d (2000) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2000 WL 533293 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Alan T. SPOTO and Sandra A. Spoto, Plaintiffs, v. HERKIMER COUNTY TRUST, Groupinsure Brokerage Holdings, Inc., Bill Burrows, individually, as CEO of Herkimer County Trust, as Chairman of Herkimer County Trust's Board of Directors and as a member of Groupinsure Brokerage Holdings, Inc.'s Board of Directors, Laura B. Marcantonio, individually, as President of Herkimer County Trust, as member of the Herkimer County Trust's Board of Directors, as CEO of Groupinsure Brokerage Holdings, Inc. and as Chairman of Groupinsure Brokerage Holdings, Inc.'s Board of Directors, Stanley K. Dickson, individually, as CFO of Herkimer County Trust and as member of Groupinsure Brokerage Holding, Inc.'s Board of Directors, Peter Bickford, individually, and as partner of Werner & Kennedy, Werner & Kennedy, John T. Buckley, as partner of Werner & Kennedy, Charles E. Chromow, as partner of Werner & Kennedy, Robert K. Fulton, as partner of Werner & Kennedy, Michael A. Knoerzer, as partner of Werner & Kennedy, John M. Nonna, as partner of Werner & Kennedy, Larry P. Schiffer, as partner of Werner & Kennedy, Francine Levitt Semaya, as partner of Werner & Kennedy, Donald L. Sharpe, as partner of Werner & Kennedy, Richard T. Kennedy, individually and as Managing Partner of Werner & Kennedy, Stanley Smith, individually and as President of the Manhattan Group, and the Manhattan Group, Defendants. No. 99–CV–1476. | April 27, 2000. Attorneys and Law Firms Brindisi, Murad & Brindsisi–Pearlman, LLP, Utica, New York, for Plaintiffs, Louis T. Brindisi, of counsel. Hancock & Estabrook, LLP, Mony Tower I, Syracuse, New York, for Herkimer Defendants, Walter Meagher, Jr., Eric C. Nordby, of counsel. Bond, Schoeneck & King, LLP, Syracuse, New York, for Werner Defendants, Thomas D. Keleher, Brian J. Butler, of counsel. MEMORANDUM–DECISION and ORDER MUNSON, Senior J. *1 Currently before the Court are three motions. Both the Herkimer defendants and the Werner defendants move for judgment on the pleadings as to plaintiffs' federal claims, which plaintiffs oppose. 1 Plaintiffs, in turn, move to amend their complaint, which defendants oppose. For the reasons that follow, the Court grants defendants motions, denies plaintiffs' motion to amend as futile, and declines to exercise supplemental jurisdiction over plaintiffs' state law claims. BACKGROUND Plaintiffs' instant action is a superlative example of why some legal minds posit that the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961–1968, et seq., are the most misused statutes in the federal corpus of law. For the purposes of deciding defendants' motions, the following allegations are assumed to be true. Plaintiff Alan T. Spoto was a shareholder in Friedlander, Spoto, Miller and Maloff Agency, Inc. (“FSM & M”), an insurance agency in Utica, New York. During 1995 or 1996, defendant Laura B. Marcantonio, President of HCT, approached Spoto “concerning the bank's interest in the insurance industry to increase its profit margin.” Compl. ¶ 17. Commencing “in or about 1997,” HCT and Spoto “entered into discussions and negotiations for the purchase of the FSM & M Agency and the establishment of a new corporation, GROUPINSURE, for the purchase and sale of insurance products through the GROUPadvantage franchises .” Id. ¶ 23. Spoto alleges that to induce him to sell his share in FSM & M, he was promised employment with HCT and, after the new corporation was formed, he would become President and Chief Operating Officer of GROUPinsure. Spoto was to own a forty-nine percent interest of the newly-formed enterprise and have full authority over its day-to-day operation, without interference from HCT. Spoto also was to have his interest in the new venture protected by a shareholder and employment Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 197 of 240
Spoto v. Herkimer County Trust, Not Reported in F.Supp.2d (2000) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 agreement, and would be paid $12,500 per month. Id. ¶ 24. Defendant Bill Burrows, who wanted to establish HCT in the insurance industry, “assured [Spoto] that he would become very wealthy and successful in the future if he consummated this deal with the bank.” Id. ¶ 25. In 1998, plaintiffs explain, defendants Stanley Smith, TMG Peter Bickford and Werner were retained to assist in establishing the new corporation. In February 1999, Smith and TMG appraised FSM & M. The appraisal represented a sum “far lower” than Spoto had anticipated—a valuation between $685,000 and $985,000. Id. ¶ 34. Following the valuation, HCT bought FSM & M for $425,000. Id. ¶ 36. Further negotiations ensued. After “many days,” Spoto received a twenty percent interest in the newly-formed GROUPinsure, as well as the right to purchase an additional twenty percent share. As promised, he was named President and Chief Operating Officer of the corporation and given a five-year employment contract. Id. ¶¶ 37–39. *2 Apparently, all was not rosy. Despite assurances that he would be able to manage GROUPinsure as he saw fit, Marcantonio—who “continually and publicly harassed and ridiculed” Spoto—interfered with his operation of the company. Id. ¶¶ 39–40. Eventually, following a period of further harassment, GROUPinsure terminated Spoto on July 23, 1999. On account of his termination, Spoto's option to buy an additional twenty percent of GROUPinsure expired. Id. ¶¶ 45–46. Ostensibly, these facts might lead one to conclude that the issue before the Court is an ordinary breach of contract or fraud claim. Indeed, plaintiffs raise several common law causes of action, including fraud and breach of contract; however, by plaintiffs' estimation, the remedy most appropriate to redress defendants' alleged malfeasance is RICO, the statute Congress enacted to eradicate organized criminal racketeering activity. Plaintiffs theorize that the aforementioned actions, perpetrated through fairly unspecific acts of mail and wire fraud, amount to “a fraudulent scheme and conspiracy for the purposes of defrauding [Spoto] of his experience, knowledge and stature in the insurance industry, and his ownership interest in [FSM & M].” Plfs' Mem. of Law at 1. Defendants deny these accusations and catalog a host of fatal deficiencies with plaintiffs' RICO claims: failure to plead a pattern of racketeering activities; failure to plead two predicate acts; failure to plead a conspiracy; failure to plead a RICO enterprise; failure to plead an investment injury; and failure to comply with Local Rule 9.2 of this district, which unequivocally requires a RICO statement to be filed within thirty days from the filing of the complaint. Defendants further insist that plaintiffs' proposed amended complaint suffers from the same defects. Accordingly, defendants ask the Court to dismiss the instant RICO claims, deny plaintiffs' motion to amend, and remand the remaining common law claims to state court. DISCUSSION I. Standard for Judgment on Pleadings The standard for deciding a motion pursuant to Rule 12(c) is the same as the one applicable to a motion to dismiss under Rule 12(b)(6). See Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998). “Under that test, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant.” Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). A court “should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotation marks omitted). In making this determination, the Court also may consider exhibits attached to the complaint or documents incorporated into the complaint by reference. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). II. Lack of Service on the Werner Defendants *3 The Werner defendants complain that defendants Kennedy, Knoerzer, Fulton and Buckley have not been served with summons and complaint in this matter. Aff. of Thomas D. Keleher, Esq. ¶ 28. Accordingly, they ask the Court to dismiss the complaint as to those defendants pursuant to Rules 12(b)(1) and (5). As plaintiffs do not contend otherwise, the Court grants defendants' instant motion. III. RICO and its Requirements As may be commonly known, RICO makes it a crime “to conduct” an “enterprise's affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c); see also McLaughlin v. Anderson, 962 F.2d 187, 190 (2d Cir.1992). RICO, however, also contains a civil provision permitting “[a]ny person injured in his business or property by reason of a violation” of its criminal components to recover treble damages and attorney's fees. 18 U.S.C. § 1964(c). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 198 of 240
Spoto v. Herkimer County Trust, Not Reported in F.Supp.2d (2000) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 Plaintiffs' complaint alleges civil RICO violations under §§ 1962(a), (c) and (d), while his proposed amended adds a claim under § 1962(b). Section 1962 prohibits, under subsections (a) through (d), the following: (a) the use of income “derived ... from a pattern of racketeering activity” to acquire an interest in, establish, or operate an enterprise engaged in or whose activities affect interstate commerce; (b) the acquisition of any interest in or control of such an enterprise “through a pattern or racketeering activity”; (c) the conduct or participation in the conduct of such an enterprise's affairs “through a pattern of racketeering activity”; and (d) conspiring to do any of the above. 18 U.S.C. SS 1962(a)—(d); see also GICC Capital Corp. v. Technology Finance Group, Inc., 67 F.3d 463, 465 (2d Cir.1995), cert. denied, 518 U.S. 1017, 116 S.Ct. 2547, 135 L.Ed.2d 1067 (1996). To state a viable claim for damages under the act, plaintiffs must allege that defendants violated the substantive RICO statute, 18 U.S.C. § 1962. In so doing, they must claim the existence of seven constituent elements: (1) that the defendants (2) through the commission of two or more acts (3) constituting a “pattern” (4) of “racketeering activity” (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an “enterprise” (7) the activities of which affect interstate or foreign commerce. See Pinnacle Consultants v. Leucadia Nat'l Corp., 101 F.3d 900, 904 (2d Cir.1996). The Court agrees with defendants that plaintiffs' complaint, as well as their proposed amended complaint, suffers from a variety of defects, any one of which dooms their RICO cause of action. Here the court focuses on two: lack of continuity and failure to plead mail fraud predicate acts with specificity. 2 To demonstrate a pattern of racketeering activity, “a plaintiff must plead at least two predicate acts, show that the acts are related and that they amount to, or pose a threat of, continuing criminal activity.” H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). RICO targets “racketeering activity,” which the statute generally defines as certain acts indictable under Federal law, including mail and wire fraud, and violations of the Hobbs Act. 18 U.S.C. § 1961(1)(B). *4 A “pattern” requires at least two acts of “racketeering activity,” occurring within ten years of each other. See 18 U.S .C. § 1961(5). Again, those predicate acts must be crimes under state or federal law. See United States v. Angelilli, 660 F.2d 23 (2d Cir.1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1258, 71 L.Ed.2d 449, rehearing denied, 456 U.S. 939, 102 S.Ct. 1998, 72 L.Ed.2d 460 (1982); Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 995 (E.D.N.Y.1995). Both the Supreme Court and Second Circuit have held that an allegation of two acts of “racketeering activity,” without more, is not sufficient to establish a pattern. See H.J. Inc., 492 U.S. at 238–44, 109 S.Ct. at 2893; United States v. Indelicato, 865 F.2d 1370, 1381 (2d Cir.) (en banc), cert. denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989). Moreover, and importantly, to constitute a “pattern” of racketeering activity, the predicate acts must be related and constitute a threat of continued racketeering activity and this determination is to be made on a case-by-case basis. H.J. Inc., 492 U.S. at 238– 44, 109 S.Ct. 2893; see also United States v. Alkins, 925 F.2d 541, 551 (2d Cir.1991) (predicate acts must be related and amount to or pose a threat of continued criminal activity). In addressing what constitutes a “pattern” of racketeering activity the Second Circuit noted that “[a]n interrelationship between acts, suggesting the existence of a pattern, may be established ... [by] proof of their temporal proximity, or common goals, or similarity of methods, or repetitions.” Indelicato, 865 F.2d at 1382. Moreover, plaintiffs must allege “continuity” as a prerequisite for the existence of a “pattern of racketeering activity.” H.J. Inc., 492 U.S. at 230. In other words, the predicate acts must be related, and must constitute or threaten long-term criminal activity. See Id. Such continuity can be either “closed” or “open-ended.” Id. Closed-ended continuity is established by proving a series of related predicate acts extending over a substantial period of time, while open-ended continuity requires the threat of long-term racketeering activity. See Id. A threat is indicated when the predicate acts themselves involve a distinct threat of future racketeering activity, are part of the regular way of doing business for an ongoing entity (be it a criminal association or legitimate business), or are a regular means of conducting or participating in an ongoing RICO enterprise. See Id. Plaintiffs allegations clearly do not constitute a open-ended continuity; rather, if they allege any kind of continuity, they suggest a closed-ended continuity. Ordinarily, courts will not find a threat of future racketeering in “cases concerning alleged racketeering activity in furtherance of endeavors that are not inherently unlawful, such as frauds in the sale of property.” United States v. Aulicino, 44 F.3d 1102, 1111 (2d Cir.1995). Here, defendants' alleged wrongdoing is not Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 199 of 240
Spoto v. Herkimer County Trust, Not Reported in F.Supp.2d (2000) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 “inherently unlawful.” Rather, their wrongdoing sounds more in the nature of fraud, as is evidenced by plaintiffs' alternate state law cause of action brought under that theory. See Compl. ¶¶ 105–11. For this reason alone, their RICO cause of actions fail. Yet, their RICO claim clearly is defective for at least one other reason: their allegations of mail and wire fraud are too vague. *5 Both the plaintiffs' complaint and proposed amended complaint allege that the predicate acts in support of the RICO claim are the defendants violations of the mail and wire fraud statutes. That statute, in relevant part, provides that a person is guilty of mail fraud if: having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting so to do, [the person] places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service. 18 U.S.C. § 1341. The crux of mail fraud and wire fraud is “an intent to defraud.” United States v. Bouyea, 152 F.3d 192, 194 (2d Cir.1998); U.S. v. Gabriel, 125 F.3d 89, 96 (2d Cir.1997) (holding same). To establish an intent to defraud, the plaintiffs must adequately allege that the “defendants contemplated some actual harm or injury to their victims. Only a showing of intended harm will satisfy the element of fraudulent intent.” United States v. Dinome, 86 F.3d 277, 283 (2d Cir.1996) (mail fraud and wire fraud) (quoting United States v. Starr, 816 F.2d 94, 98 (2d Cir.1987)); see also In re Registry Publishing, 68 F.3d at 580 (“In order to establish that the defendant acted with an intent to defraud, the Government must show that some actual harm or injury was contemplated by the schemer.”) (internal quotation marks omitted); United States v. D'Amato, 39 F.3d 1249, 1257 (2d Cir.1994). Similarly, the wire fraud statute requires a scheme devised “to defraud, or for obtaining money or property by means of false or fraudulent pretenses, or promises,” and the use of interstate wires or communications to execute the scheme. 18 U.S.C. §§ 1341, 1343. Herein lies the problem for plaintiffs: in their attempt to dress a common law breach of contract or fraud claim as a RICO claim, their allegations of mail fraud are conclusory and extraordinarily vague, which makes it impossible for them to demonstrate the required “pattern” of racketeering. Defendants correctly note that these underlying counts of mail and wire fraud must be pled with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure, e.g., Rule 9(b) requires that in all averments of fraud, “the circumstances constituting fraud ... shall be stated with particularity.” Fed.R.Civ.P. 9(b). This heightened pleading requirement is in place for three reasons: (1) to provide defendants notice to enable them to prepare proper defenses; (2) to protect defendants against harm to their reputation or goodwill; and (3) to deter strike suits. See DiVittorio v. Equidyne Extractive Indus. Inc., 822 F.2d 1242, 1247 (2d Cir.1987). Rule 9(b) requires plaintiffs to go on the record as to the specific nature of the fraud, Carlucci v. Owens–Corning Fiberglas Corp., 646 F.Supp. 1486, 1489 (E.D.N.Y.1986), and therefore to fulfill Rule 9(b)'s particularity requirements, plaintiffs' complaint must specify the time, place, speaker, and content of the alleged misrepresentation. DiVittorio, 822 F.2d at 1247 (citing Luce v. Edelstein, 802 F.2d 49, 52 (2d Cir.1986)). Certainly, in pleading a defendant's state of mind, Rule 9(b) provides that “[m]alice, intent, knowledge and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). Yet, this relaxation of Rule 9(b)'s particularity requirement is not a “license to base claims of fraud on speculation and conclusory allegations.” Acito v. Imcera Group, Inc., 47 F.3d 47, 52 (2d Cir.1995). Scienter may be averred generally, but “plaintiffs are still required to plead the factual basis which gives rise to a strong inference of fraudulent intent.” Fischer v. Tynan, No. 90 Civ. 7587, 1993 WL 213025 at * 2 (S.D.N.Y. Jun. 16, 1993) (citation omitted). *6 Construing both the complaint and proposed amended complaint generously and drawing all inferences in favor of the pleader, as the Court must do under Rule 9(b), see Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989), the Court finds plaintiffs have failed completely to plead fraudulent intent and the content of the alleged misrepresentation with sufficient particularity. Plaintiffs, for example, aver mail and wire fraud —the sole predicate acts that are the basis for their claim —without ever delineating the who, what, why, where and when. 3 Accordingly, plaintiffs' RICO claims are dismissed Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 200 of 240
Spoto v. Herkimer County Trust, Not Reported in F.Supp.2d (2000) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 in their entirety because they have not pled mail fraud with specificity. Moreover, as their proposed amended complaint fails in this respect as well, it would be futile to allow the amendment, therefore plaintiffs' cross-motion to amend is denied. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed .2d 222 (1962) (describing reasons for denying leave to amend). Finally, having dismissed plaintiffs' civil RICO claims, the Court declines to exercise supplemental jurisdiction over Plaintiffs' numerous claims under New York state law. See 18 U.S.C. § 1367(c)(3). CONCLUSION Wherefore, based upon the foregoing, the Court GRANTS the Werner defendants' motion to dismiss against defendants Kennedy, Knoerzer, Fulton and Buckley pursuant to Rules 12(b)(1) and (5); GRANTS the Herkimer defendants' motion for judgment on the pleadings as to plaintiffs' RICO claims against them; GRANTS the Werner defendants' motion for judgment on the pleadings as to plaintiffs' RICO claims against those defendants of the Werner group who received proper service; DENIES plaintiffs' cross-motion to amend their complaint; and DECLINES to exercise supplemental jurisdiction over plaintiffs' claims raised pursuant to New York state law. IT IS SO ORDERED. All Citations Not Reported in F.Supp.2d, 2000 WL 533293 Footnotes 1 For brevity's sake, the Court refers to defendants as two groups: the Herkimer defendants and the Werner defendants. The Herkimer group consists of the Herkimer County Trust (“HCT”); GROUPinsure Brokerage Holdings, Inc. (“GROUPinsure”); Bill Burrows; Laura B. Marcantonio; Stanley K. Dickson; Stanley Smith; and The Manhattan Group (“TMG”). The remaining defendants comprise the Werner group, who are Werner & Kennedy (“Werner”), John T. Buckley, Charles E. Chromow, Robert K. Fulton, Michael A. Knoerzer, John N. Nonna, Larry P. Schiffer, Francine Levitt Semaya, and Richard T. Kennedy. Donald L. Sharpe, who had been part of the Werner defendants, was dismissed from this action on January 14, 2000. 2 Indeed, the Court would be justified to dismiss plaintiffs' complaint based upon their very untimely filing of their Local Rule 9.2 RICO statement. See Gagliardi v. Ward, 967 F.Supp. 67, 69 (N.D.N.Y.1997). 3 Paragraphs 71 to 76 of plaintiffs' complaint “detail” the alleged mail and wire fraud. Those paragraphs reciting the mail fraud, for example, read as follows: 71. The individual and corporate Defendants for the purpose of executing the scheme and artifice to defraud the Plaintiff of the amount due and owing to him under the agreement and sale of the FSM & M AGENCY and transfer of the GROUPadvantage franchises included, without limitation, the following: a. The mailing of documents from the individual and corporate Defendants to the Plaintiff. b. The mailing of correspondence and other documents by Defendants, GROUPINSURE, HERKIMER COUNTY TRUST, BILL BURROWS, LAURA MARCANTONIO, STAN DICKSON, STAN SMITH, THE MANHATTAN GROUP, PETER BICKFORD and WERNER & KENNEDY, to and from each other. 72. The use of the mail on each and every occasion in furtherance of the Defendants' and the other individuals (sic) scheme and conspiracy and artifice to defraud the Plaintiff constitutes a separate offense. ... Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 201 of 240
Spoto v. Herkimer County Trust, Not Reported in F.Supp.2d (2000) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 76. The use of the mails and wires for the purposes of effectuating the aforesaid scheme to defraud the Plaintiff, which occurred on more than one occasion in the last ten years, constitutes a pattern of racketeering activity in violation of 18 USCS § 1962, for which treble damages, costs of suit and attorneys' fees may be sought under 18 USCS § 1964(c). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 202 of 240
TIMMY WALLACE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2026 WL 392345 Only the Westlaw citation is currently available. United States District Court, S.D. New York. TIMMY WALLACE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. 22 Civ. 3414 (GBD) (JW) | Filed 02/12/2026 Attorneys and Law Firms Timmy Wallace, Bruceton Mills, WV, Pro Se. Christine Colalillo, Jesse N. Zilinski, New York City Law Department, New York, NY, for Defendants Haskovic Harris, Michael Monahan, Alejandro Azcona. Christine Colalillo, Jesse N. Zilinski, Joseph Peter Zangrilli, New York City Law Department, New York, NY, for Defendants David Alston, CITY OF NEW YORK. MEMORANDUM DECISION AND ORDER GEORGE B. DANIELS United States District Judge *1 Pro se plaintiff Timmy Wallace (“Plaintiff”) brings this action for false arrest and malicious prosecution pursuant to 42 U.S.C. § 1983 against defendants the City of New York and police officers Harris Haskovic, Michael Monahan, Alejandro Azcona, David Alston, and Christopher Beckett (collectively, “Defendants”). On September 19, 2022, the case was referred to Magistrate Judge Jennifer E. Willis for pretrial management and dispositive motions. (ECF No. 19.) On April 10, 2023, Defendants collectively moved for judgment on the pleadings. (Mot. for J. on Pleadings (the “Motion”), ECF No. 46.) Before this Court is Magistrate Judge Willis's Report and Recommendation (the “Report”) recommending that Defendants’ motion for judgment on the pleadings be granted. Upon a careful review of the Report and the underlying record, this Court adopts the Report in full and dismisses this case. (R & R, ECF No. 78.) I. FACTUAL BACKGROUND 1 This case stems from Plaintiff's May 25, 2015, arrest for violating New York Penal law § 170.70, illegal possession of a vehicle identification number (“VIN”). See U.S. v. Wallace, 15 Cr. 794 (KBF), 2016 WL 4367961, at *1 (S.D.N.Y. Aug. 11, 2016). On that date, NYPD officers pulled over Plaintiff's car for a defective taillight. (Third Am. Compl. (“TAC”), ECF No. 54, at 4.) Upon opening the driver-side door, the arresting officers discovered that Plaintiff's vehicle did not have a VIN label affixed to the door, as required by New York law. 2 (Second Am. Compl. (“SAC”), ECF No. 26, at 4–5.) Suspecting that the vehicle was stolen, the officers arrested Plaintiff and his vehicle was impounded. See Wallace, 2016 WL 4367961, at *3–5. 3 During the inventory search of Plaintiff's vehicle, NYPD officers found a gun stashed under the hood of Plaintiff's car. See id. at *6. State prosecutors subsequently dismissed the § 170.70 charges and indicted Plaintiff for criminal possession of a weapon. (Compl., ECF No. 2, at 12–15.) On or about August 28, 2015, the state weapons possession charge was dismissed in lieu of a federal felon-in-possession charge pursuant to the Armed Career Criminal Act, 18 U.S.C. §§ 922(g), 924(e)(1), 924(2)(A). (Order to Amend, ECF No. 11, at 4.) In 2017, Plaintiff was convicted in federal court of unlawful possession of a weapon and sentenced to fifteen years in prison. See United States v. Wallace, 937 F.3d 130, 136–37 (2d Cir. 2019) (denying Plaintiff's appeal of his conviction). *2 On April 25, 2022, Plaintiff brought this action, alleging false arrest and malicious prosecution pursuant to 42 U.S.C. § 1983. (Compl. at 6.) On April 10, 2023, Defendants filed this motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Motion.) On June 20, 2023, Plaintiff filed a third amended complaint—the operative complaint before this Court. (TAC.) On July 6, 2023, Plaintiff filed an opposition to the motion, (Pl. Opp., ECF No. 58,) to which Defendants replied on July 24, 2023, (Defs. Reply, ECF No. 62.) On February 13, 2024, Magistrate Judge Willis issued her Report, which recommended that Defendants’ motion be granted, and the case be dismissed in its entirety. (R&R, at 1.) On March 11, 2024, Plaintiff filed his objections to the Report with an accompanying declaration. (Pl. Objs., ECF No. 80.) On March 27, 2024, Defendants replied to the Plaintiff's objections. (Def. Reply, ECF No. 83.) On April 16, 2024, Plaintiff filed additional objections to the Report. (Add'l Objs., ECF No. 84.) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 203 of 240
TIMMY WALLACE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 II. LEGAL STANDARDS A reviewing court “may accept, reject, or modify, in whole or in part, the findings or recommendations” made within a magistrate judge's report. 28 U.S.C. § 636(b)(1)(C). The court “may also receive further evidence or recommit the matter to the magistrate judge with instructions.” Id. The court must review de novo the portions of a magistrate judge's report to which a party properly objects. Id. Portions of a magistrate judge's report to which no or “merely perfunctory” objections have been made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346–47 (S.D.N.Y. 2006). The clear error standard also applies if a party's “objections are improper—because they are ‘conclusory,’ ‘general,’ or ‘simply rehash or reiterate the original briefs to the magistrate judge.’ ” Stone v. Comm'r of Soc. Sec., No. 17-CV-569 (RJS) (KNF), 2018 WL 1581993, at *3 (S.D.N.Y. Mar. 27, 2018) (citation omitted). Clear error is present when “upon review of the entire record, [the court is] left with the definite and firm conviction that a mistake has been committed.” Brown v. Cunningham, No. 14-CV-3515 (VEC) (MHD), 2015 WL 3536615, at *4 (S.D.N.Y. June 4, 2015) (citations omitted). “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that for granting a Rule 12(b) (6) motion for failure to state a claim.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020). The chief question is “whether a complaint's factual allegations plausibly give rise to an entitlement to relief ....” Id. (citation omitted). “[J]udgment on the pleadings is not appropriate if there are issues of fact which if proved would defeat recovery, even if the trial court is convinced that the party opposing the motion is unlikely to prevail at trial.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021) (citation omitted). When assessing a Rule 12(c) motion, courts must “accept all factual allegations in the complaint as true and draw all reasonable inferences in [the Plaintiff's] favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009). Further, courts must review pro se submissions with “special solicitude,” and their contents “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Barnes v. City of New York, 68 F.4th 123, 127 (2d Cir. 2023). III. THE REPORT IS ADOPTED Plaintiff objects to the Report's conclusions that (1) his false arrest claim was untimely; (2) he did not establish a malicious prosecution claim; and (3) he did not establish a municipal liability claim. This Court liberally construes Plaintiff's arguments as raising specific objections to the Report. On a de novo review, this Court adopts the Report's conclusions in full. A. False Arrest 4 *3 “[I]n New York, the statute of limitations for [§] 1983 claims is New York's general statute of limitations for personal injury actions, which is three years.” Kane v. Mount Pleasant Central School District, 80 F.4th 101, 108 (2d Cir. 2023) (citation omitted). For false arrest claims, the statute of limitations begins to run “once the victim becomes held pursuant to [a legal] process—when, for example, he is bound over by a magistrate or arraigned on charges.” Wallace v. Kato, 549 U.S. 384, 389 (2007). Accordingly, the statute of limitations on Plaintiff's false arrest claim began to run when he was arraigned on June 24, 2015. (See Pl. Obj. at 5.) Since more than three years elapsed between that date and Plaintiff's filing of this action in 2022, Plaintiff's false arrest claim is time barred. Plaintiff does not dispute that he filed this action well beyond the three-year limitation period. Instead, Plaintiff argues that his claims are timely because he served a notice-of-claim on the New York City Comptroller on July 30, 2015. (See Add'l Objs. at 29–30.) But as the Report notes, “state law notice-of-claim provisions are inapplicable to § 1983 actions brought in federal court.” Finley v. Giacober, 827 F.Supp. 215, 219 (S.D.N.Y. 1993). So even if this notice-of-claim put the Defendants on notice that Plaintiff may one day challenge his arrest, this did not toll the three-year statute of limitations for his federal claims. See Day v. Moscow, 955 F.2d 807, 814 (2d Cir. 1992) (“The purpose of a tolling provision is to assure that the claimant has the full period of time provided by a statute of limitations in which to bring his suit. In the present case, no valid purpose would be served by enlarging the prescribed period to ‘compensate’ for a disability that did not exist.”) This Court further adopts the Report's conclusion that the continuing violation exception does not apply. As the Report states, “[f]or the continuing violation doctrine to Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 204 of 240
TIMMY WALLACE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 apply, a plaintiff must allege that “specific individuals committed at least one wrongful act within the statutory time period.” (R&R at 10 (quoting Gonzalez v. Wright, 665 F.Supp.2d 334, 350 (S.D.N.Y. 2009).) Here, “Plaintiff has failed to allege any non-time-barred acts committed by Defendants.” (Id.) Therefore, the continuing violation doctrine is inapplicable. Accordingly, this Court adopts the Report's recommendation to dismiss Plaintiff's false arrest claim as untimely. B. Malicious Prosecution Unlike his false arrest claim, Plaintiff's malicious prosecution claim is timely. Malicious prosecution claims pursuant to § 1983 are subject to the same three-year limitation period noted above. See Smith v. City of New York, 1F.Supp.3d 114, 119 (S.D.N.Y. 2013). But this limitation period may be equitably tolled where the plaintiff is “not at fault for her lateness in filing.” Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir. 2004). A litigant claiming equitable tolling must show (1) “that some extraordinary circumstance stood in her way” and (2) “that she has been pursuing her rights diligently.” Doe v. United States, 76 F.4th 64, 71 (2d Cir. 2023) (internal citation omitted). Here, Magistrate Judge Willis reasoned that Plaintiff was not at fault because his malicious prosecution claim was not cognizable before the Supreme Court's decision in Thompson v. Clark, 596 U.S. 36 (2022). (R&R at 12–13.) Thompson held that plaintiffs alleging malicious prosecution under § 1983 “need only show that the criminal prosecution ended without a conviction.” Thompson, 596 U.S. at 49. This changed prior Second Circuit case law that required plaintiffs to show that their criminal prosecution ended “with some affirmative indication of [ ] innocence.” Id. at 41. Thus, prior to Thompson, Second Circuit case law precluded malicious prosecution claims where (like here) a plaintiff's underlying criminal charge was unilaterally dismissed without an “affirmative indication of innocence.” After the change in law, Plaintiff was reasonably diligent in pursuing his rights, filing this claim less than one month after the Thompson decision. (R&R at 13.) Plaintiff's reasonable reliance on then-authoritative Second Circuit precedent, and diligent effort to pursue his malicious prosecution claim when it became available, warrants equitable tolling of the statute of limitations. Accordingly, this Court adopts Magistrate Judge Willis's conclusion that Plaintiff's malicious prosecution claim is timely. *4 Although timely, Plaintiff's malicious prosecution claim is not actionable. First, that claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994). Heck held that in actions seeking “damages for allegedly unconstitutional convictions or imprisonments, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” plaintiffs must prove that the conviction or sentence has been “invalidated.” Id. at 486–87. Here, Plaintiff seeks damages arising out of his criminal conviction, (see TAC at 5,) and a favorable decision on his malicious prosecution claim would necessarily call into question his valid federal conviction. The instant suit and Plaintiff's federal conviction both arose from his May 25, 2015, arrest and the subsequent inventory search of Plaintiff's vehicle. Additionally, Plaintiff's federal conviction was upheld on appeal and remains valid. See Wallace, 937 F.3d at 136–37. Magistrate Judge Willis correctly determined that Plaintiff's malicious prosecution claim and his valid federal conviction are “inextricably intertwined,” and therefore, barred under Heck. (R&R at 18.) Moreover, Plaintiff has failed to adequately allege a claim for malicious prosecution. To establish a malicious prosecution claim under New York law, a plaintiff must prove “(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions.” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). It is clear from the pleadings that Defendants had probable cause to initiate prosecution, even though the initial charge was dismissed. Probable cause to prosecute is implied where the officers had probable cause to arrest and there was no intervening fact that dissipated their probable cause. Kinzer v. Jackson, 316 F.3d 139, 144 (2d Cir. 2003). It is uncontested that Plaintiff's driver-side door was missing a VIN label in violation of New York Penal Law § 170.70. (See SAC at 4–5.) Plaintiff has failed to allege any intervening facts that would dissipate this probable cause to arrest. Plaintiff alleges that during the arrest, officers performed a “Rugby Search” of the vehicle's registration stickers, which showed Plaintiff was the owner of the vehicle. (Pl. Objs. at 2–4.) But this information would not dissipate the officer's probable cause to arrest pursuant to § 170.70 because Plaintiff's driver-side door was still missing a VIN label. Further, the court presiding over Plaintiff's criminal trial considered and rejected this same argument. See Wallace, 2016 WL 4367961, at *8–9. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 205 of 240
TIMMY WALLACE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 The initial probable cause to arrest, and the discovery of the handgun without any intervening fact, is fatal to Plaintiff's malicious prosecution claim. Accordingly, this Court adopts the Report's conclusion on this issue and dismisses Plaintiff's malicious prosecution claim. C. Municipal Liability Finally, Plaintiff objects to the Report's conclusion that he has not adequately plead a municipal liability claim. “[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). “The failure to train or supervise city employees may constitute an official policy or custom if the failure amounts to ‘deliberate indifference’ to the rights of those with whom the city employees interact.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). “To establish deliberate indifference, a plaintiff must show that the municipality was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or sanction violations of constitutional rights.” Uviles v. City of New York, 130 F.4th 27, 32 (2d Cir. 2025) (citation omitted). *5 Here, Plaintiff argues that the City was deliberately indifferent to his constitutional rights by failing to effectively punish one of the arresting officers for previous constitutional violations. (See TAC at 18–19; Pl. Objs. at 7; Add'l Objs. at 27–28.) Specifically, Plaintiff alleges that the City was aware that one of the arresting officers was previously “found guilty” by the Civilian Complaint Review Board for unlawful arrests and seizures. (Add'l Objs. at 27–28.) Even accepting these allegations as true, these two previous unrelated incidents are not sufficient to establish a widespread pattern of misconduct by the officer or deliberate indifference by the City. See Giaccio v. City of New York, 308 F. App'x 470, 472 (2d Cir. 2009) (finding that four constitutional violations “falls far short of establishing a practice that is ‘so persistent or widespread’ as to justify the imposition of municipal liability”); Nardoni v. City of New York, 331 F. Supp. 3d 116, 129 (S.D.N.Y. 2018) (finding allegations of six previous incidents of false arrest by an NYPD detective insufficient to establish a policy or practice). Further, Plaintiff fails to allege any causal link between the officer's previous alleged misconduct and the City's decision to commence and pursue criminal charges following his arrest. Accordingly, Plaintiff's municipal liability claim is dismissed. IV. PLAINTIFF IS NOT GRANTED LEAVE TO AMEND This Court also adopts the Report's recommendation to deny the Plaintiff leave to amend. Ordinarily, “pro se litigants should be given leave to amend a complaint if a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 22 F.3d 99, 112 (2d Cir. 2000) (citation omitted). But where a plaintiff's claims are substantively lacking, such that “granting leave to amend is unlikely to be productive[,] ... it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Here, additional pleadings would not cure the substantive deficiencies in Plaintiff's claims. Accordingly, Plaintiff is denied further leave to amend. V. CONCLUSION Defendants’ motion for judgment on the pleadings, (ECF No. 46,) is GRANTED. The Clerk of Court is directed to close the case accordingly. SO ORDERED. All Citations Slip Copy, 2026 WL 392345 Footnotes 1 The relevant factual and procedural background is set forth in greater detail in the Report and is incorporated by reference herein. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 206 of 240
TIMMY WALLACE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 2 New York Penal Law § 170.70 states, in relevant part, that “a person is guilty of illegal possession of a vehicle identification number when ... [h]e knowingly possesses a vehicle or vehicle part ... from which a vehicle identification number label, sticker, or plate has been removed.” N.Y. Penal Law § 170.70. 3 This Court takes judicial notice of the extensive record in Plaintiff's federal criminal case and the facts established at trial. See Brookins v. Laureano, No. 22-1478-PR, 2023 WL 6458543 (2d Cir. Oct. 4, 2023) (taking judicial notice of the record in a prior criminal case); Fed. R. Evid. 201(b). 4 While Plaintiff has raised claims for false arrest in numerous complaints, the operative complaint only asserts a claim for malicious prosecution. See TAC at 6 (“Even though the Defendants in this matter are liable for numerous violations of Plaintiff's constitutional right's [sic] ... this claim is in reference to the malicious prosecution ....”). Defendants’ motion, however, responds to all the arguments raised in Plaintiff's numerous complaints. (See Motion at 5.) “[I]n the interest of resolving this dispute on the merits,” Judge Willis considered both Plaintiff's false arrest and malicious prosecution claims. (Report at 2.) Likewise, this Court will review the Report's recommendations on both of Plaintiff's claims. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 207 of 240
Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 6685476 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Kylie Ann TURCZYN, Deceased, by and through Barbara McGREGOR, as Administratrix of the Estate of Kylie Ann Turczyn, Plaintiff, v. CITY OF UTICA et al., Defendants. No. 6:13–cv–1357 (GLS/ATB). | Signed Nov. 26, 2014. Attorneys and Law Firms Office of Frank Policelli, Frank Policelli, Esq., of Counsel, Utica, NY, for the Plaintiff. City of Utica—Corporation Counsel, Mark C. Curley, Esq., Merima Smajic, Esq., Zachary C. Oren, Esq., of Counsel, Utica, NY, for the Defendants. MEMORANDUM–DECISION AND ORDER GARY L. SHARPE, Chief Judge. I. Introduction *1 Plaintiff Kylie Ann Turczyn, deceased, by and through Barbara McGregor, as administratrix of the estate of Kylie Ann Turczyn, commenced this action against defendants City of Utica, City of Utica Police Dept., and Elizabeth Shanley alleging substantive due process claims pursuant to 42 U.S.C. § 1983 and separate state law causes of action. (Am.Compl., Dkt. No. 12.) Pending is defendants' motion to dismiss for failure to state a claim. (Dkt. No. 19.) For the reasons that follow, the motion is granted in part and denied in part. II. Background A. Facts 1 Shanley, an Oneida County domestic violence investigator, was at all relevant times assigned by the Police Department to accomplish the goals of reducing “occurrence[s] of domestic violence by increasing reporting and by identifying and tracking repeat victims and/or offenders,” and “increas[ing] victims' access to supportive services by encouraging [them] to report their abuse, thereby increasing arrest rates for domestic offenders.” (Am.Compl.¶ 10.) On June 22, 2012, Thomas Anderson, Turczyn's former boyfriend and the father of her daughter, broke into Turczyn's home armed with a 9 mm rifle. (Id. ¶ 11) Anderson repeatedly shot Turczyn, taking her life in view of their four-year-old daughter, G.T. (Id.) Anderson then dispatched himself. (Id.) In the twelve months preceding this horrific event, Turczyn made between five and ten complaints to Utica police officers, “including informing them of a specific threat by Anderson to kill her.” (Id. ¶ 12.) Turczyn specifically told Shanley “that Anderson was armed and had threatened to kill her.” (Id. ¶ 12(d).) Despite their knowledge of domestic violence between Turczyn and Anderson, neither Shanley, New York State Police, nor Utica Police took any steps to arrest Anderson, investigate Turczyn's complaints, or follow- up with Anderson “as is the policy and protocol of the domestic violence unit.” (Id. ¶ 14.) On June 18, 2012, Shanley told Turczyn to seek an order of protection, which she attempted to do, but was told by an unknown person at the Oneida County Family Court to return the following day because the court was “ ‘too busy.’ “ (Id. ¶¶ 15–16.) The following day, Turczyn left a voice message for Shanley, explaining that she was unable to obtain an order of protection and that Anderson had a gun and planned to kill her that week. (Id. ¶¶ 16–18.) Despite her knowledge, “Shanley took no action.” (Id. ¶ 17.) Shanley also mistakenly believed that Turczyn's issues with Anderson were outside of the purview of Utica Police and should, instead, be dealt with by New York State Police; however, “she did not inform any other police agency or take any action herself.” (Id. ¶¶ 18, 19, 20.) B. Procedural History Turczyn commenced this action by filing a complaint on October 31, 2013. (Dkt. No. 1.) Defendants thereafter moved to dismiss, (Dkt. No. 10.) In response, Turczyn filed an amended complaint as of right, which is now the operative pleading. (See generally Am. Compl.) In her amended complaint, Turczyn alleges the following causes of action: (1) a denial of substantive due process rights under the Fifth and Fourteenth Amendments due to deliberate indifference; (2) a Monell 2 claim against the City; (3) negligence; (4) Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 208 of 240
Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 a “derivative action” on behalf of G.T.; and (5) negligent infliction of emotional distress. (Id. ¶¶ 37–74.) Defendants now move to dismiss the amended pleading pursuant to Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 19.) III. Standard of Review *2 The standard of review under Fed.R.Civ.P. 12(b)(6) is well settled and will not be repeated here. For a full discussion of the standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218 (N.D.N.Y.2010). IV. Discussion A. Preliminary Matters At the outset, it is noted that some of Turczyn's claims are deemed abandoned by her failure to oppose their dismissal. See Barmore v. Aidala, 419 F.Supp.2d 193, 201– 02 (N.D.N.Y.2005) (“The failure to oppose a motion to dismiss a claim is deemed abandonment of the claim, and, in the Northern District of New York, is deemed consent to granting that portion of the motion.” (internal citations omitted)); Hanig v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710, 723 (S.D.N.Y.2005) (“[B]ecause [the] plaintiff did not address [the] defendant's motion to dismiss with regard to [a particular] claim, it [wa]s deemed abandoned and ... dismissed.”). In particular, Turczyn squarely opposed dismissal of her substantive due process claim as against Shanley, (Dkt. No. 20 at 8–12), and scarcely, but sufficiently to save the claim from dismissal for abandonment, offered reasons why her substantive due process claim as against the City should survive defendants' motion, (id. at 5–7). Aside from the substantive due process claim, Turczyn failed to offer any opposition to defendants' motion, which also sought dismissal of her pendant causes of action. (Dkt. No. 19, Attach. 6 at 31–40 & n. 15.) Accordingly, Turczyn's pendant state law claims, (Am.Compl.¶¶ 59–74), are dismissed. Additionally, it is clear that the Police Department must be dismissed as urged by defendants, (Dkt. No. 19, Attach. 6 at 2 n. 2), because “a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence.” Varela v. City of Troy, No. 1:10–cv–1390, 2014 WL 2176148, at *6 (N.D.N.Y. May 22, 2014) (internal quotation marks omitted). As such, all claims as against the Police Department are dismissed. The court also notes that both parties have submitted certain evidence that is outside of the pleadings (Dkt. No. 19, Attachs. 3, 4; Dkt. No. 20, Attachs. 1, 2.) Beginning with defendants, they submitted a January 2, 2013 stipulation of discontinuance, which, on its face, purports to memorialize McGregor's agreement to withdraw the notice of claim filed on behalf of Turczyn and to discontinue with prejudice, (Dkt. No. 19, Attach.3), and a December 28, 2012 letter, which appears to memorialize a conversation regarding the discontinuation of legal action and execution of a stipulation, (Dkt. No. 19, Attach.4). Relying on a single out-of-Circuit decision, see Raines v. Haverford Coll., 849 F.Supp. 1009, 1010 (E.D.Pa.1994), which does not appear directly to support their position nor does it give this court confidence that the kinds of documents at issue here were contemplated by that decision, defendants assert that the documents may be considered on their motion to dismiss as “part of the record of this case.” (Dkt. No. 19, Attach. 6 at 25 n. 11.) Turczyn argues that defendants' reliance on the stipulation is inappropriate at this juncture, yet she offers the affidavit of McGregor, submitted to dispute the validity of the stipulation, (Dkt. No. 20, Attach.1), without any explanation as to why the court should or may consider it. (Dkt. No. 20 at 12–13.) *3 The court has excluded from its consideration of this motion to dismiss the exhibits offered by defendants as well as the McGregor affidavit. See Fed.R.Civ.P. 12(d). The existence of some document or documents that may extinguish a plaintiff's claims, such as a release or stipulation of discontinuance, is an affirmative defense, see Beede v. Stiefel Labs., Inc., No. 1:13–cv–120, 2014 WL 896725, at *3 (N.D.N.Y. Mar.6, 2014), and “ ‘[a]n affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b) (6) ... if the defense appears on the face of the complaint,’ “ Iowa Pub. Emps.' Ret. Sys. v. MF Global, Ltd., 620 F.3d 137, 145 (2d Cir.2010) (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir.1998)). Here, the stipulation defense is not apparent from the face of the amended complaint. Moreover, the court refuses to consider the documents in question as part of the record of this case, a proposition for which no in-Circuit authority has been offered nor has any been discovered by this court. As such, the documents offered by defendants, (Dkt. No. 19, Attachs.3, 4), are not properly before the court, and their argument that Turczyn's claims must be dismissed because of Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 209 of 240
Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 those documents is rejected. McGregor's affidavit, (Dkt. No. 20, Attach.1), which was also improvidently submitted for consideration, is likewise excluded. The court now turns to the merits of defendants' arguments regarding the substantive due process and Monell claims. B. Rule 8 First, defendants argue that Turczyn's § 1983 due process claim is subject to dismissal under the Rule 8 plausibility analysis—specifically because of Turczyn's failure to allege facts supportive of a sufficient nexus between Shanley's omissions and Turczyn's death. (Dkt. No. 19, Attach. 6 at 23–24.) The court disagrees. The amended complaint plausibly alleges a causal connection between the conduct of defendants—their alleged conscience-shocking failure to protect Turczyn, (Am.Compl.¶ 49)—and her injuries, i.e., the allegations plausibly suggest that defendants' acts were a substantial factor in bringing about Turczyn's injuries. See Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir.1998) (“[I]n all § 1983 cases[ ] the plaintiff must prove that the defendant's action was a proximate cause of the plaintiff's injury.”). Accordingly, this argument is rejected. C. Rule 12(b)(6) Defendants argue that Turczyn has failed to state a substantive due process claim as against Shanley or the City. (Dkt. No. 19, Attach. 6 at 220, 26–31.) Defendants contend that Turczyn alleges only passive conduct on the part of Shanley that does not give rise to a substantive due process violation. (Id. at 10– 12.) More generally, defendants assert that Turczyn has failed to plead facts to show “implicit prior assurances through repeated sustained inaction,” and that, even if she did, the state action alleged does not rise to the level of conscience- shocking behavior. (Id. at 15–20.) Alternatively, defendants argue that Shanley is entitled to qualified immunity. (Id. at 20–23.) With respect to the City, defendants contend that Turczyn has failed to allege facts that support a claim of municipal liability. (Id. at 26–31.) For reasons explained below, defendants' motion is denied with respect to Turczyn's substantive due process claim against Shanley, but granted with respect to her Monell claim against the City. *4 Only one relevant exception to the general rule that no substantive due process claim lies for a state's failure to protect an individual from private violence, see DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), potentially applies in this case. That exception imposes liability for failure to protect where state actors in some way affirmatively assist “in creating or increasing the danger to the victim.” Okin v. Vill. of Cornwall–On–Hudson Police Dep't, 577 F.3d 415, 428 (2d Cir.2009) (internal quotation marks and citation omitted); see Pena v. DePrisco, 432 F.3d 98, 110 (2d Cir.2005). “[R]epeated, sustained inaction by government officials, in the face of potential acts of violence, might constitute ‘prior assurances,’ rising to the level of an affirmative condoning of private violence, even if there is no explicit approval or encouragement.” Okin, 577 F.3d at 428 (quoting Dwares v. City of N.Y., 985 F.2d 94, 99 (2d Cir.1993)). Moreover, when “state officials communicate to a private person that he ... will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others, those officials can be held liable under section 1983 for injury caused by the misconduct” “even though none of the defendants [is] alleged to have communicated the approval explicitly.” Id. at 428– 29 (quoting Pena, 432 F.3d at 111)). In a nutshell, “[t]he affirmative conduct of a government official may give rise to an actionable due process violation if it communicates, explicitly or implicitly, official sanction of private violence.” Id. at 429. A successful substantive due process claim also requires that the plaintiff show “that the state action was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ “ Id. at 431 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). A hierarchy of intent provides guidance on the likelihood that a particular harm rises to the necessary level. Intentionally inflicted harms are most likely to meet the standard, while reckless and negligent inflictions of harm are each less likely, in graduated downward steps, to show conscience-shocking state action. Id. As for recklessly inflicted injuries, “ ‘[d]eliberate indifference that shocks in one environment may not be so patently egregious in another.’ “ Id. (quoting Lewis, 523 U.S. at 850). Accordingly, the inquiry is highly fact specific. Unlike Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), or Neal v. Lee County, Civil Action No. 1:08CV262, 2010 WL 582437 (N.D.Miss. Feb.12, 2010)—cases in which police had limited interaction with either the victim or killer prior to the victim's demise, and upon which defendants rely for dismissal of the claim against Shanley, (Dkt. No. 19, Attach. 6 at 3–5, 7–8)—the allegations here go substantially farther. Turczyn alleges several occasions 3 when Shanley knew of Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 210 of 240
Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Anderson's threatening acts and did nothing, which arguably communicated to him prior assurances that there would be no penalty to pay for his conduct. (Am.Compl.¶¶ 12–13.) “This is so even though none of the defendants are alleged to have communicated the approval explicitly.” Pena, 432 F.3d at 111. Okin has specifically recognized the liability that may arise under these circumstances. See 577 F.3d at 428–29 (explaining that liability under § 1983 attaches when “state officials communicate to a private person that he ... will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others” (quoting Pena, 432 F.3d at 111)). *5 The amended complaint also pleads facts that demonstrate, at this juncture, egregious behavior that shocks the contemporary conscience. As in Okin, the allegations here tend to show that Shanley, who was tasked with accomplishing certain goals related to curbing domestic violence, was deliberately indifferent as to whether or not Anderson would make good on his multiple threats against Turczyn's life over a twelve-month-period. (Am.Compl.¶ ¶ 10, 12.) These allegations sufficiently support that Shanley's affirmative conduct was the product of deliberate indifference that shocks the conscience, and would provide a reasonable jury with a valid basis to so find. See Conradt v. NBC Universal, Inc., 536 F.Supp.2d 380, 394–95 (S.D.N.Y.2008). Finally, Shanley is not entitled to qualified immunity at this juncture. Her argument on this issue is two-fold. First, Shanley asserts that no constitutional violation occurred, and, second, she claims that, even if a constitutional violation occurred, the right was not clearly established. (Dkt. No. 19, Attach. 6 at 20–23.) The first prong of the argument is easily swept aside by reference to the preceding paragraphs that explain that the amended complaint alleges a cognizable substantive due process violation. As for whether or not the right was clearly established, which is a prerequisite to qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), this question has been resolved by the Second Circuit. On the issue, the court has explained that it is “clearly established,” under the state-created danger theory, “that police officers are prohibited from affirmatively contributing to the vulnerability of a known victim by engaging in conduct, whether explicit or implicit, that encourages intentional violence against the victim, and as that is the substantive due process violation alleged here, qualified immunity does not apply.” Okin, 577 F.3d at 434. Accordingly, Shanley is not entitled to qualified immunity at this time. As for the City, defendants assert that Turczyn has failed to plead a Monell claim because the amended complaint merely alleges legal conclusions. (Dkt. No. 19, Attach. 6 at 26–31.) With respect to Turczyn's allegation that the City failed to properly train or supervise its employees, defendants contend that the amended complaint is too conclusory, but that, even if adequately pleaded, Turczyn's municipal liability claim must nonetheless fail because she has not alleged deliberate indifference. (Id. at 29–31.) It is well settled that “the inadequacy of police training may serve as the basis for § 1983 liability ... where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, Oh. v. Harris, 489 U.S. 378, 380, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The deliberate indifference standard is “stringent” and requires “proof that a municipal actor disregarded a known or obvious consequence of his action.” Connick v. Thompson, –––U.S. ––––, ––––, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011) (internal quotation marks and citation omitted). A showing of deliberate indifference requires that: (1) “a policymaker knows ‘to a moral certainty’ that her employees will confront a given situation”; (2) “the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation”; and (3) “the wrong choice by the ... employee will frequently cause the deprivation of a citizen's constitutional rights.” Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d Cir.1992) (quoting City of Canton, 489 U.S. at 390 n. 10). *6 Here, because Turczyn has failed to adequately plead that the City's failure to train and supervise amounted to deliberate indifference, she has failed to state a claim of municipal liability. The amended complaint uses the label “deliberate indifference” in reference to Turczyn's municipal liability claim and generically references the City's failure to properly train and supervise, but it fails to allege facts that support either conclusory notion. (Am.Compl.¶¶ 45, 52.) Turczyn's pleading failure mandates dismissal of her Monell claim against the City. See Gauthier v. Kirkpatrick, Civil Action No. 2:13–cv–187, 2013 WL 6407716, at *10 (D.Vt. Dec.9, 2013) (dismissing failure to train Monell claim because the plaintiff failed to plead facts that supported the deliberate difference elements); Santos v. New York City, 847 F.Supp.2d 573, 577 (S.D.N.Y.2012); see also Worrell v. City of N.Y ., No. 12–CV– 6151, 2014 WL 1224257, at *13 (E.D.N.Y. Mar. 24, 2014). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 211 of 240
Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 V. Conclusion WHEREFORE, for the foregoing reasons, it is hereby ORDERED that defendants' motion to dismiss (Dkt. No. 19) is GRANTED IN PART and DENIED IN PART as follows: GRANTED with respect to all claims alleged as against the City of Utica Police Dept. and the Clerk is directed to terminate the City of Utica Police Dept. from this action; and GRANTED with respect to Turczyn's Monell claim against the City (Am.Compl.¶ ¶ 51–58), which is hereby DISMISSED WITHOUT PREJUDICE, and the Clerk is directed to terminate the City of Utica from this action; and GRANTED with respect to all of Turczyn's pendant state law claims, (Am.Compl.¶ ¶ 59–74), which are hereby DISMISSED; and DENIED in all other respects; and it is further ORDERED that the sole remaining defendant, Shanley, shall file an appropriate responsive pleading within the time allotted by the rules; and it is further ORDERED that the parties shall contact Magistrate Judge Andrew T. Baxter in order to schedule further proceedings; and it is further ORDERED that the Clerk provide a copy of this Memorandum–Decision and Order to the parties. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2014 WL 6685476 Footnotes 1 The facts are presented in the light most favorable to plaintiff. 2 See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). 3 In fact, Turczyn claims that she lodged five to ten complaints—of which Shanley was aware—with the Utica Police within the twelve months preceding the murder. (Am.Compl.¶¶ 12, 13.) So many occurrences may amount to “repeated [and] sustained inaction ... in the face of potential acts of violence.” Okin, 577 F.3d at 428. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 212 of 240
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 981850 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Jeramie WHITE, Plaintiff, v. SYRACUSE POLICE DEPARTMENT, et al., Defendants. Civil Action No. 5:18-CV-1471 (GTS/DEP) | Signed 01/07/2019 Attorneys and Law Firms FOR PLAINTIFF: Jeramie White, Pro se, 18-B-0311, Cayuga Correctional Facility, P.O. Box 1186, Moravia, NY 13118. ORDER, REPORT, AND RECOMMENDATION DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE *1 This is a civil rights action brought by pro se plaintiff Jeramie White, a New York State prison inmate, pursuant to 42 U.S.C. § 1983, against the Syracuse Police Department (“SPD”) and five of its officers. In his complaint, plaintiff alleges that defendants violated his constitutional rights during the course of his arrest on February 13, 2017. Plaintiff's complaint and accompanying application for leave to proceed in forma pauperis (“IFP”) have been referred to me for review. Based upon my consideration of those materials, I will (1) grant plaintiff's amended IFP application, (2) recommend dismissal of his claim against the SPD with leave to replead, and (3) recommend that his complaint otherwise be accepted for filing. I. BACKGROUND Plaintiff commenced this action on or about December 20, 2018. Dkt. No. 1. According to plaintiff, he and two friends were on their way to play indoor basketball when their vehicle was pulled over for a traffic infraction. Id. at 4; Dkt. No. 1-1 at 4. Plaintiff alleges that after the stop, defendant William Kittle forcibly removed White from the vehicle and that Kittle, in addition to defendants Abraham Mamoun and Shawn Hauck, proceeded to use excessive force against him during the course of his arrest. Dkt. No. 1 at 4-5, 6-7; see also Dkt. No. 1-1 at 4, 8. Plaintiff further alleges that defendants Altimonda and Fiorini were present and had an obligation to intervene and prevent the unlawful use of force, but failed to do so. Id. at 5, 7. Plaintiff was ultimately arrested and charged with resisting arrest, in violation of N.Y. Penal Law § 205.30, and second-degree obstruction of governmental administration, in violation of N.Y. Penal Law § 195.05. Dkt. No. 1-1 at 4. As relief, plaintiff seeks compensatory and punitive damages in the amount of $1,000,000. Dkt. No. 1 at 8. A. Plaintiff's Amended IFP Application 1 When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $400, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP if it determines that he is unable to pay the required filing fee. 28 U.S.C. § 1915(a) (1). 2 Because I conclude that plaintiff meets the requirements for IFP status, his amended application for leave to proceed without prepayment of fees is granted. 3 B. Sufficiency of Plaintiff's Complaint 1. Governing Legal Standard *2 Because I have found that plaintiff meets the financial criteria for commencing this case IFP, I must next consider the sufficiency of the claims set forth in his complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss the case at any time if the court determines that ... the action ... (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). Similarly, 28 U.S.C. § 1915A(b) directs a court to review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity,” and to “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief may be granted; or ... seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (“We have found both sections [1915 and 1915A] applicable to prisoner proceedings in forma pauperis.”). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 213 of 240
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 In deciding whether a complaint states a colorable claim, a court must extend a certain measure of deference in favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to address the sufficiency of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity ... occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) ); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory ... or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d. 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory, for the purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”). When reviewing a complaint under section 1915(e), the court is guided by the Federal Rules of Civil Procedure. Specifically, Rule 8 provides that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, J.) (quotation marks and italics omitted). A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the court should construe the factual allegations of a complaint in a light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2) ). 2. Analysis of Plaintiff's Claims *3 Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978), a municipal police department does not have the capacity to be sued as an entity separate from the municipality in which it is located. See Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (citing Orraca v. City of N.Y., 879 F. Supp. 148 (S.D.N.Y. 1995) ); Turczyn ex rel. McGregor v. City of Utica, No. 13- CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); see also Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly against the Department.”). Although I would ordinarily recommend that, for the sake of judicial efficiency, the court substitute the City of Syracuse in place of the SPD, plaintiff's complaint contains no factual allegations that would support a Monell claim against the City of Syracuse. Accordingly, I recommend dismissal of plaintiff's claims asserted against the SPD. With respect to his remaining claims, although plaintiff makes passing reference to his rights arising under the Eighth and Fourth Amendments, see Dkt. No. 1 at 6, it is clear from the factual allegations that he is asserting claims for excessive force and the failure to intervene arising under the Fourth Amendment. See generally Dkt. No. 1; see also Edrei v. Maguire, 892 F.3d 525, 533 (2d Cir. 2018) (“Arrestees may invoke the Fourth Amendment's prohibition against ‘unreasonable’ seizures.”). In light of the court's obligation to liberally construe a pro se litigant's pleadings, I find that plaintiff's complaint should be accepted for filing and the Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 214 of 240
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 individual officer defendants should be required to respond in accordance with the local rules of practice for this court and the Federal Rules of Civil Procedure. 4 C. Whether to Permit Amendment Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a) (“The court should freely give leave when justice so requires.”); see also Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y. 1995) (permitting leave to replead where court could “not determine that the plaintiffs would not, under any circumstances, be able to allege a civil RICO conspiracy”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). In this case, while I recommend dismissal of plaintiff's claim against the SPD, plaintiff could potentially amend his complaint to assert a cognizable cause of action against a defendant, such as the City of Syracuse, which is amenable to suit. Accordingly, I recommend that plaintiff be granted leave to amend his complaint. If plaintiff chooses to file an amended complaint, he must clearly and concisely set forth the facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, plaintiff is informed that any such amended complaint will replace the existing complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted) ). II. SUMMARY, ORDER, AND RECOMMENDATION *4 Having reviewed plaintiff's amended application for leave to proceed in this action IFP, I conclude that he has met the applicable requirements for leave to proceed without prepayment of fees, and will therefore grant his application. Turning to the merits of his complaint, to the extent that it names five police officers and alleges a violation of 42 U.S.C. § 1983, I conclude that those claims are not subject to dismissal at this procedural juncture. I recommend a finding, however, that plaintiff's claim against the SPD is legally deficient and subject to dismissal, but that plaintiff should be afforded an opportunity to amend with respect to that claim. Accordingly, it is hereby ORDERED that plaintiff's amended application for leave to proceed in this action without prepayment of fees (Dkt. No. 6) is GRANTED; and it is further ORDERED that plaintiff's original application for leave to proceed in this action without prepayment of fees (Dkt. No. 2) is DENIED as moot; and it is further RECOMMENDED that plaintiff's complaint (Dkt. No. 1) be accepted for filing with respect to plaintiff's Fourth Amendment cause of action against defendants Mamoun, Kittle, Hauck, Altimonda, and Fiorini; and it is further RECOMMENDED that plaintiff's remaining cause of action against the Syracuse Police Department be otherwise DISMISSED with leave to replead within thirty days of the issuance of an order adopting this recommendation; and it is further RECOMMENDED that, in the event plaintiff does not choose to file an amended complaint and the above recommendations are adopted, the case should move forward with respect to plaintiff's Fourth Amendment cause of action against defendants Mamoun, Kittle, Hauck, Altimonda, and Fiorini. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. 5 FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993). Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 215 of 240
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 All Citations Not Reported in Fed. Supp., 2019 WL 981850 Footnotes 1 Plaintiff filed both an original and amended motion to proceed in this action IFP. Dkt. Nos. 2, 6. While the two motions contain slightly different information concerning plaintiff's financial status, only the amended motion contains the required certification from an official at the correctional facility in which plaintiff is confined. Compare Dkt. No. 3 with Dkt. No. 7. Accordingly, plaintiff's original IFP application is denied as incomplete. 2 The total cost for filing a civil action in this court is $400.00, consisting of the civil filing fee of $350.00, see 28 U.S.C. § 1914(a), and an administrative fee of $50.00. Although an inmate granted IFP status is not required to pay the $50.00 administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee regardless of the outcome of the action. See 28 U.S.C. § 1915(b)(3). 3 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees that he incurs in this action, including copying and/or witness fees. 4 The court expresses no opinion concerning whether plaintiff's claims can survive a properly filed motion to dismiss or motion for summary judgment, or whether he may prevail at trial. 5 If you are proceeding pro se and are served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. 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. Fed. R. Civ. P. 6(a)(1)(C). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 216 of 240
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 974824 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Jeramie WHITE, Plaintiff, v. SYRACUSE POLICE DEPARTMENT; Abraham Mamoun, Syracuse Police Dept.; William Kittle, Syracuse Police Dept.; Shawn Hauck, Syracuse Police Dept.; Altimonda, Syracuse Police Dept.; and Fiorini, Syracuse Police Dept., Defendants. 5:18-CV-1471 (GTS/DEP) | Signed 02/28/2019 Attorneys and Law Firms JERAMIE WHITE, 18-B-0311, Plaintiff, Pro Se, Cayuga Correctional Facility, P.O. Box 1186, Moravia, New York 13118. DECISION and ORDER Hon. Glenn T. Suddaby, Chief U.S. District Judge *1 Currently before the Court, in this pro se civil rights action filed by Jeramie White (“Plaintiff”) against the Syracuse Police Department and five of its employees (“Defendants”), is United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that (1) Plaintiff’s Complaint be accepted for filing by the Court with respect to Plaintiff’s Fourth Amendment cause of action against Defendants Mamoun, Kittle, Hauck, Altimonda and Fiorini, and (2) Plaintiff’s remaining cause of action against the Syracuse Police Department be dismissed with leave to replead within thirty days of the issuance of an Order adopting the Report-Recommendation. (Dkt. No. 9.) Plaintiff did not submit an objection to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) 1 Based upon a review of this matter, the Court can find no clear error in the Report-Recommendation: 2 Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts the Report- Recommendation for the reasons stated therein; Plaintiff’s Complaint is accepted for filing with respect to his Fourth Amendment cause of action against Defendants Mamoun, Kittle, Hauck, Altimonda and Fiorini; and Plaintiff’s remaining cause of action against the Syracuse Police Department is dismissed with leave to replead within thirty days of the issuance of this Decision and Order. ACCORDINGLY, it is ORDERED that Magistrate Judge Peebles' Report- Recommendation (Dkt. No. 9) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff’s Complaint is accepted for filing with respect to Plaintiff’s Fourth Amendment cause of action against Defendants Mamoun, Kittle, Hauck, Altimonda and Fiorini; and it is further *2 ORDERED that Plaintiff’s remaining cause of action against the Syracuse Police Department is DISMISSED with leave to replead within THIRTY (30) DAYS of the issuance of this Decision and Order. ORDERED that, in the event Plaintiff files an Amended Complaint within the above-referenced thirty-day period, it shall be referred to Magistrate Judge Peebles for review; and it is further ORDERED that, in the event Plaintiff does not file an Amended Complaint within the above-referenced thirty- day period, this action shall move forward with respect to his Fourth Amendment cause of action against Defendants Mamoun, Kittle, Hauck, Altimonda and Fiorini, and the Clerk of the Court is directed to issue summonses and USM-285 forms at that time for service by the U.S. Marshal Service. All Citations Not Reported in Fed. Supp., 2019 WL 974824 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 217 of 240
White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Footnotes 1 The Court notes that, on January 11, 2019, Plaintiff filed a letter from the City of Syracuse Citizen Review Board dated December 31, 2018, outlining its findings with respect to this matter. (Dkt. No. 10.) In its letter, the Citizen Review Board upheld Plaintiff’s claim for excessive force against “Det. One,” recommended a written reprimand against that individual, and absolved “Det. Two,” “Sgt. One,” and “Lt. One” from wrongdoing regarding the use of excessive force. (Id.) The Court does not liberally construe this letter as any sort of Objection to the Report-Recommendation. 2 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 218 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Declined to Extend by Jordan v. County of Chemung, W.D.N.Y., September 5, 2017 2014 WL 1293527 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Guynell WRIGHT, Plaintiff, v. CITY OF SYRACUSE; Jeffrey T. Wright; Andrew Nolan; Donald Thompson; Robert Calkin; John Doe(s); Jane Doe(s); John M. O'Connor, III; and Thomas Simone, Defendants. No. 5:10–CV–0661 (GTS/TWD). | Signed March 31, 2014. Attorneys and Law Firms Bosman Law Firm, L.L.C., A.J. Bosman, Esq., Daniel W. Flynn, Esq., of Counsel, Rome, NY, for Plaintiff. Hon. Robert P. Stamey, James P. McGinty, Esq., Aimee M. Paquette, Esq., of Counsel, Syracuse, NY, for City of Syracuse Counsel for Defendants. Hancock Estabrook LLP, John G. Powers, Esq., of Counsel, Syracuse, NY, for Defendants. DECISION and ORDER GLENN T. SUDDABY, District Judge. *1 Currently before the Court, in this employment discrimination action filed by Guynell Wright (“Plaintiff”) against the City of Syracuse, six of its employees and an unstated number of John and Jane Does (“Defendants”) is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 95.) For the reasons set forth below, the motion is granted. I. RELEVANT BACKGROUND A. Plaintiff's Claims Generally, in his Third Amended Complaint, Plaintiff, an African–American man who was formerly employed by the City of Syracuse (“the City”) as a laborer for the Department of Public Works (“the Department”), alleges that, throughout his employment with the City, he was treated differently than similarly situated white employees in the form of promotions, work assignments and discipline; he was retaliated against for his complaints of racial discrimination; and he was subject to continuous hostile work environment conditions. (Dkt. No. 45.) Based on the factual allegations of Plaintiff's Third Amended Complaint, he asserts the following twenty-one claims: (1) a claim against all Defendants alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) a claim against all Defendants alleging race discrimination in violation of the New York Human Rights Law, N.Y. Exec. Law § 296 (“NYHRL”); (3) a claim against all Defendants alleging hostile work environment in violation of Title VII; (4) a claim against all Defendants alleging hostile work environment in violation of NYHRL; (5) a claim against all Defendants alleging retaliation in violation of Title VII; (6) a claim against ll Defendants alleging retaliation in violation of NYHRL; (7) a claim against all Defendants alleging race discrimination in violation of Plaintiff's right to equal protection under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 (“Section 1983”); (8) a claim against all Defendants alleging hostile work environment in violation of Plaintiff's right to equal protection under the Fourteenth Amendment pursuant to Section 1983; (9) a claim against all Defendants alleging retaliation in violation of Plaintiff's right to freedom of speech under the First Amendment pursuant to Section 1983; (10) a claim against the City alleging municipal liability on Plaintiff's Section 1983 claims against the individually named Defendants; (11) a claim alleging breach of contract against all Defendants; (12) a claim against all Defendants alleging race discrimination in violation of 42 U.S.C. § 1981 (“Section 1981”); (13) a claim against all Defendants alleging hostile work environment in violation of Section 1981; (14) a claim against all Defendants alleging retaliation in violation of Section 1981; (15) a claim against all Defendants alleging the deprivation of Plaintiff's property interest in his continued employment in violation of his right to due process under the Fourteenth Amendment pursuant to Section 1983; (16) a claim against all Defendants alleging the deprivation of Plaintiff's property and liberty interest in his good name and reputation in violation of his right to due process under the Fourteenth Amendment Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 219 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 pursuant to Section 1983; (17) a claim against all Defendants alleging the deprivations of Plaintiff's rights under Article I of the New York State Constitution; (18) a claim against all Defendants alleging retaliation in violation of Title VII based on the Defendants having successfully contested Plaintiff's unemployment compensation benefits; (19) a claim against all Defendants alleging retaliation in violation of Section 296 based on the Defendants having successfully contested Plaintiff's unemployment compensation benefits; (20) a claim against all Defendants alleging retaliation in violation of Plaintiff's right to freedom of speech under the First Amendment pursuant to Section 1983 based on the Defendants having successfully contested Plaintiff's unemployment compensation benefits; and (21) a claim against all Defendants alleging retaliation in violation of Section 1981 based on the Defendants having successfully contested Plaintiff's unemployment compensation benefits. (Id.) B. Undisputed Material Facts *2 The following material facts 1 are gleaned from Defendants' Local Rule 7.1 Statement of Undisputed Material Facts, and Plaintiff's response thereto. (See Dkt. No. 100– 7 [Defs.' Rule 7.1 Statement]; Dkt. No. 105 [Pl.'s Rule 7.1 Response Statement].) Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court requires that the nonmoving party file a response to the moving party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3). It further provides that, to the extent that the nonmoving party fails to do so, the facts asserted in the movant's Statement of Material Facts will be deemed admitted, as long as they are supported by the record. Id. Plaintiff was employed as a “Laborer I” in the Department's Street Cleaning Bureau from at least June of 2006 until his termination in February of 2010. 2 Laborer I is a civil service classified job title that includes a written job description and written qualifications. The Laborer I position is covered within the American Federation of State, County and Municipal Employees (“AFSCME”) Local 400 (“Local 400”) bargaining unit, of which Plaintiff was a member. The collective bargaining agreement (“CBA”) for the relevant period between the City and Local 400 provides that the City shall furnish each employee member of Local 400 with a copy of the existing Work Rules and that any amendments or additions to the Work Rules shall be discussed with Local 400 and published to its members prior to becoming effective and that thereafter, any complaint shall be resolved through the grievance procedure. (See Dkt. No. 96–2, at 64 [Ex. B to Decl. of Donald Thompson, June 13, 2013].) Section 8.1.4 of the CBA also provides that, “[i]n the event that an employee receives a written reprimand and one (1) year elapses without any other disciplinary action being imposed on the employee, such reprimand shall be removed from the employee's personal file. The Work Rules provide, in relevant part, at follows: VII. Employee Discipline The City shall not exercise its right to discharge or otherwise discipline an employee without just cause. Whenever reasonable, the City shall subscribe to the principles of progressive discipline. Set forth below are the guidelines used by the City in enforcing progressive discipline and determining the appropriate disciplinary penalty in any particular circumstance. These guidelines may be deviated from when, in the City's opinion, circumstances warrant. MINOR OFFENSES FIRST, SECOND, THIRD - Write up FORTH - Write up and one day suspension FIFTH - Write up and three day suspension SIXTH - Write up and five day suspension SEVENTH - Write up and ten day suspension EIGHTH - Write up and termination Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 220 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 MAJOR OFFENSES FIRST - Write up and suspension or termination SECOND - Write up and suspension or termination THIRD - Write up and termination *3 Notwithstanding the provisions of Article 8.1.4 of the parties ['] collective bargaining agreement, the discipline imposed for those violations considered to be ‘minor’ shall be determined by reviewing the number of such violations for which an employee has been disciplined in the twelve (12) months preceding the current violation; However, upon committing a fourth (4th) ‘minor’ violation within the above stated twelve (12) month[ ] period, then that minor violation and each succeeding ‘minor’ violation shall be based on discipline[ ] received within the preceding eighteen (18) month period. The discipline imposed for each succeeding violation shall be in accordance with progressive discipline as outlined in the above guidelines; In all cases of ‘major’ violations which are subject to suspension and/or termination, the preceding eighteen (18) months disciplinary record (including ‘minor’ violations) shall be considered in determining the discipline to be imposed in accordance with those outlined in the above guidelines. (Dkt. No. 107–1, at 9–10 [Ex. 1 to Flynn Aff. ].) The Work Rules expressly provide that “[i]nsubordination is a major ... violation.” (Id., at 7.) To be sure, the Work Rules provide that “[t]heft of any City property or services is prohibited[,]” the level of violation attached to such conduct is not specified. (Id.) However, Section 9.2.1 of the CBA refers to fighting, theft, substance abuse and insubordination as “serious violations.” (See Dkt. No. 96– 2, at 53.) From July 2006 until he was terminated, Plaintiff was subject to a series of disciplinary actions by the City. First, in July 2006, Plaintiff was given a one-day suspension for insubordination. In February 2007, Plaintiff was given a 20– day suspension for fighting with another employee. 3 In July 2007, Plaintiff was given a 20–day suspension for theft of City property. In January 2009, Plaintiff was terminated for insubordination, but then was brought back to work through a “last chance” agreement between the City and Local 400. 4 Finally, on February 24, 2010, Plaintiff was terminated for theft of City Property. Plaintiff does not dispute the fact of these disciplinary actions, but disputes the bases for the actions and/or argues that the City applies their policies inconsistently, discretionarily and disparately. Defendant, John M. O'Connor, III (“O'Connor”) made the decision to terminate Plaintiff. O'Connor was appointed Commissioner of the Department in January 2010 and had no involvement in Plaintiff's discipline or any employment actions regarding Plaintiff prior to his termination in February 2010. Defendant, Jeffrey Wright (“Wright”) was the Commissioner of the Department through December 2009 and had no involvement in the decision to terminate Plaintiff in February 2010. Defendant, Thomas Simone, III (“Simone”) has been the First Deputy Commissioner of the Department since January 2010. He was not a decision maker regarding the determination to terminate Plaintiff in February 2010. *4 Defendant, Donald Thompson (“Thompson”) was the Director of Personnel during the relevant period. Thompson asserts by Declaration that he agreed that it was appropriate to terminate Plaintiff under the circumstances and concurred with O'Connor's decision in that regard. (See Dkt. No. 96 at ¶¶ 34–35 [Decl. of Donald Thompson, June 13, 2013].) At his deposition, O'Connor testified regarding his communication with Thompson prior to terminating Plaintiff, as follows: “I had [a] conversation with Don Thompson, who told me the level of progression [Plaintiff] was at and [sic] was instructed and encouraged that I should investigate, and most likely there would be termination here.” (Dkt. No. 112, at 56 [Dep. of John M. O'Connor, III, at 152: 4–8, Jan. 4, 2013].) According to Plaintiff, O'Connor told him that Don (meaning Thompson) “said to fire you.” (Dkt. No. 106 at 7–8 [Aff. of Guynell Wright at ¶ 41].) During the relevant time period, Defendant, Robert Culkin (“Culkin”) was the Acting Assistant Superintendent of the Department's Street Cleaning Bureau and Defendant, Andrew Nolan (“Nolan”) was Acting Superintendent. Both Culkin and Nolan assert that they did not initiate the discipline leading up to Plaintiff's termination, did not participate in the Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 221 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 pretermination hearing and played no role in the decision to terminate Plaintiff, nor were they consulted by O'Connor for their input regarding Plaintiff's discipline. (See Dkt. No. 98 at 8 [Decl. of Andrew Nolan at ¶ 49, June 13, 2013]; Dkt. No. 100 at 5 [Decl. of Robert Culkin at ¶ 32, June 13, 2013].) Plaintiff counters that he “personally observed [ ] O'Conn[o]r go to [ ] Nolan and [ ] C[u]lkin for advice on how to perform his duties as Commissioner.” (Dkt. No. 106 at 8 [Wright Aff. ¶ 42].) Prior to his termination in February 2010, Plaintiff was provided a copy of the notice of the disciplinary charges against him as well as the possibility that termination would be considered as a result. Plaintiff was afforded a disciplinary hearing at which he was given the chance to respond to the disciplinary charges against him and was permitted to have union representation present to advocate on his behalf. Simone was present at Plaintiff's disciplinary hearing. Although Simone has the authority to advise regarding discipline, his role at Plaintiff's hearing was as an observer and gatherer of information. Also, Plaintiff exercised his procedural right to grieve his termination. That procedure ran its course according to the grievance procedure set forth in the CBA and terminated prior to the final step, when Local 400 voted not to take the grievance to arbitration. Plaintiff ultimately filed complaints with the New York State Division of Human Rights (“DHR”) on March 26, 2010 and April 28, 2010 challenging his February 2010 termination. 5 (See Dkt. No. 96–33 [Ex. GG to Thompson Decl.].) In those complaints, Plaintiff alleges that he was suspended and terminated based on his race and that he was retaliated against for his prior DHR complaints. Plaintiff alleges that white employees are treated differently than black employees in terms of employee discipline. (See id.) On June 3, 2010 and June 10, 2010, respectively, the DHR dismissed those complaints for administrative convenience. (See Dkt. No. 9'– 13 [Ex. L to Decl. of Aimee Paquette, June 14, 2013]; Dkt. No. 96–34 [Ex. HH to Thompson Decl.].) *5 After Plaintiff was terminated, he filed a claim for unemployment benefits with the Department of Labor (“DOL”). When the DOL inquired about the circumstances of Plaintiff's termination, the City responded that he had been terminated for cause. Plaintiff availed himself of the administrative appeal process to challenge the DOL's determination, which was ultimately overturned. Plaintiff received full payment of back benefits owed. C. Parties' Briefing on Defendants' Motion 1. Defendants' Memorandum of Law Generally, in their memorandum of law, the Defendants assert twelve arguments with regard to Plaintiff's claims against them. (Dkt. No. 100–8 [Defs.' Mem. of Law].) First, argue the Defendants, Plaintiff's employment discrimination claims based on his termination may be dismissed for the following three reasons: (1) the discriminatory determination claim against Simone, Wright, Culkin, Thompson and Nolan should be dismissed because each was either not the decision maker or was not otherwise actionably involved in the decision to terminate Plaintiff; (2) the discriminatory determination claim against O'Connor and the City should be dismissed because (a) Plaintiff cannot make out a prima facie case that his termination was discriminatory, (b) Defendants have come forward with legitimate, nondiscriminatory reasons for Plaintiff's termination, and (c) Plaintiff has no evidence that Defendants' stated reasons for his termination are a pretext for discrimination; and (3) absent individual liability for discriminatory termination, no liability will lie against the City pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018 (1978). (Id. at 14–25.) Second, argue the Defendants, Plaintiffs 18th, 19th, 20th and 21st causes of action alleging discrimination against the City for opposing his application for unemployment benefits may be dismissed for the following three reasons: (1) there is caselaw supporting the legal conclusion that an employer's opposition of a former employee's application for unemployment benefits is not adverse employment action; (2) where an employer opposes a former employee's unemployment application, but the employee is ultimately awarded those benefits, no adverse employment action occurs in any event; and (3) Plaintiff cannot prove discriminatory animus in the opposition of his unemployment application because he failed to seek any discovery or deposition from the City employee responsible for responding to DOL inquiries. (Id. at 26–27.) Third, argue the Defendants, Plaintiff's hostile work environment claims may be dismissed as a matter of law for the following five reasons: (1) Plaintiff's Title VII and NYHRL claims of hostile work environment must be Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 222 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 dismissed for failure to exhaust his administrative remedies before the DHR; (2) Plaintiff's NYHRL claim must be dismissed for failure to file a Notice of Claim under Section 8–115(2) of the City's Charter; (3) all of Plaintiff's hostile work environment claims must be dismissed because Plaintiff has failed to identify evidence that his workplace was permeated with discriminatory intimidation, ridicule and insult sufficiently severe or pervasive to alter the conditions of his employment; (4) Plaintiff's hostile work environment claims against Simone, O'Connor, Wright and Thompson must be dismissed because there is a lack of evidence of their personal involvement or discriminatory purpose; and (5) absent individual liability, no liability will lie against the City under Section 1981 or 1983 pursuant to Monell. (Id. at 27– 36.) *6 Fourth, argue the Defendants, there is no claim for discriminatory overtime in this action for the following six reasons: (1) the Third Amended Complaint does not include a claim for discriminatory overtime; (2) any claim for discriminatory overtime under Title VII and NYHRL must be dismissed for failure to exhaust administrative remedies before the DHR; (3) any discriminatory overtime claim under NYHRL must be dismissed for failure to file a Notice of Claim under Section 8–115(2) of the City's Charter; (4) Plaintiff cannot identify any evidence that he was denied overtime due to discrimination; (5) Plaintiff cannot identify any evidence that he was denied overtime because of his race or protected activity; and (6) any claim of discriminatory overtime against Simone, O'Connor, Wright and Thompson must be dismissed because none of them was a decision maker or involved in setting Plaintiff's alleged discriminatory overtime assignments. (Id. at 36–43.) Fifth, argue the Defendants, Plaintiff's discrimination and retaliation claims based on less desirable work assignments must be dismissed for the following five reasons: (1) Plaintiff's claimed discriminatory work assignments fail or do not constitute adverse employment action; (2) any claim of discriminatory work assignments against Simone, O'Connor, Wright and Thompson must be dismissed because none of them was a decision maker or involved in setting Plaintiff's alleged discriminatory work assignments; (3) any claim for discriminatory work assignments under Title VII and NYHRL must be dismissed for failure to exhaust administrative remedies before the DHR; (4) any discriminatory claim for discriminatory work assignments under NYHRL must be dismissed for failure to file a Notice of Claim under Section 8–115(2) of the City's Charter; and (5) absent individual liability, no liability will lie against the City under Section 1981 or 1983 pursuant to Monell. (Id. at 43–48.) Sixth, argue the Defendants, Plaintiff's discriminatory and retaliatory discipline claims must be dismissed for the following six reasons: (1) Plaintiff's claim for discriminatory and retaliatory discipline under Title VII and NYHRL must be dismissed for failure to exhaust administrative remedies before the DHR; (2) Plaintiff's claim for discriminatory and retaliatory discipline under NYHRL must be dismissed for failure to file a Notice of Claim under Section 8–115(2) of the City's Charter; (3) some or all of Plaintiff's claims for discriminatory and retaliatory discipline are barred by the relevant statute of limitations; (4) Plaintiff cannot established that the challenged disciplinary actions were premised on discriminatory or retaliatory animus; (5) discriminatory discipline claim against Simone, O'Connor, Nolan, Culkin and Thompson must be dismissed because none of them was a decision maker or involved in the discipline of Plaintiff; and (6) absent individual liability, no liability will lie against the City under Section 1981 or 1983 pursuant to Monell. (Id. at 48–57.) *7 Seventh, argue the Defendants, Plaintiff's claims of discriminatory and retaliatory denial of promotion may be dismissed for the following six reasons: (1) Plaintiff's claims for discriminatory denial of promotion under Title VII and NYHRL must be dismissed for failure to exhaust administrative remedies before the DHR; (2) Plaintiff's claim for discriminatory denial of promotion under NYHRL must be dismissed for failure to file a Notice of Claim under Section 8–115(2) of the City's Charter; (3) Plaintiff's claims for discriminatory denial of promotion under Title VII, NYHRL and Section 1983 must be dismissed because they are timebarred; (4) Plaintiff cannot establish that the claimed promotions for which he was passed over were filled based on discriminatory or retaliatory intent; (5) Plaintiff's claims for discriminatory denial of promotion against Simone, Nolan, Culkin, Thompson and O'Connor should be dismissed because none of them was a decision maker or involved in the alleged failure to promote Plaintiff to crew leader; and (6) absent individual liability, no liability will lie against the City under Section 1981 or 1983 pursuant to Monell. (Id. at 57– 67.) Eighth, argue the Defendants, Plaintiff's breach of contract claim must be dismissed because Plaintiff has failed to file a claim against Local 400, which is a prerequisite to a breach Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 223 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 of contract claim based on a union's breach of its duty of fair representation. (Id. at 67–68.) Ninth, argue the Defendants, Plaintiff's 15th and 16th causes of action, brought under Section 1983 for violation of his Fourteenth Amendment right to Due Process may be dismissed because (1) municipal employees hold no due process rights to promotions, overtime, discipline or work assignments; and (2) a municipal employee's liberty interest in keeping his employment is adequately served where there is a process available to challenge the employer's deprivation, such as a grievance procedure. (Id. at 68–70.) Tenth, argue the Defendants, Plaintiff's 17th cause of action for violations of the New York State Constitution must be dismissed because no private right of action exists under the New York State Constitution where a claim based on the same allegations is asserted under Section 1983. (Id. at 70–71.) Eleventh, argue the Defendants, Plaintiff's claim for punitive damages must be dismissed because no such claim may be maintained against the City as a matter of law and because Plaintiff has failed to identify any evidence to establish that the individual Defendants acted with evil motive or intent. (Id. at 71.) Twelfth, argue the Defendants, Plaintiff's claims against John and Jane Doe defendants must be dismissed because Plaintiff failed to identify them through amendment of his pleading prior to the close of discovery. (Id.) 2. Plaintiff's Opposition Memorandum of Law Generally, in his opposition memorandum of law, Plaintiff asserts eleven arguments: (1) because Plaintiff asserts claims under the NYHZL and the New York State Constitution, this Court should apply New York procedural law when deciding the pending motion for summary judgment; (2) Defendants' motion should be denied because there are triable issues of fact to support Plaintiff's claims that he was unlawfully discriminated against; (3) Defendants' arguments of failure to exhaust should be rejected because they rely only on the formal charges to the DHR rather than Plaintiff's intake form and handwritten submissions; (4) Plaintiff's hostile work environment claims should not be dismissed because there is more than sufficient evidence for a reasonable jury to conclude that Plaintiff's work environment was filled with discriminatory intimidation, ridicule and insult that the terms and conditions of his employment were altered for the worse; (5) the City Charter's Notice of Claim provision does not apply to Plaintiff's NYHRL claims; (6) Plaintiff's claims relating to his unemployment benefits should not be dismissed because the City's opposition of Plaintiff's unemployment applications should be deemed adverse employment action under Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006); (7) Plaintiff has viable due process claims because the CBA here only allows Local 400 to seek a post-termination hearing through arbitration; (8) Plaintiff's breach of contract claim should not be dismissed because it is a matter of fact for the jury to decide whether Local 400 breached its duty of fair representation; (9) Plaintiff's claims under the New York State Constitution should not be dismissed because the availability of a federal constitutional or statutory claim does not render a claim under the New York State Constitution subordinate; (10) Plaintiff's entitlement to punitive damages is not suitable for resolution at the summary judgment stage; and (11) Defendants lack standing to seek dismissal of the John and Jane Doe defendants. (See Dkt. No. 104 [Pl.'s Opp'n Memo. of Law].) 3. Defendants' Reply Memorandum of Law *8 Generally, in their reply memorandum of law, the Defendants assert eleven arguments: (1) Plaintiff mischaracterizes his summary judgment burden; (2) Plaintiff fails to meet his burden with respect to his wrongful termination claim; (3) Plaintiff fails to oppose, and therefore concedes, Defendants' argument that no claim exists based on discriminatory overtime; (4) Plaintiff fails to meet his burden on his discriminatory promotion claim; (5) Plaintiff fails to meet his burden on his excessive discipline claim; (6) Plaintiff fails to meet his burden on his hostile work environment claim; (7) Plaintiff effectively concedes he has no discriminatory assignments claim; (8) post-employment contestation of unemployment benefits is not actionable; (9) Plaintiff is barred from asserting a contract claim against the City; (10) Plaintiff does not have a viable due process claim; and (11) Plaintiff has failed to establish sufficient evidence to support a Monell claim against the City. (Dkt. No. 124 [Defs.' Reply Mem. of Law].) II. GOVERNING LEGAL STANDARDS A. Motion for Summary Judgment A motion for summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 224 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 dispute as to a material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Vermont Teddy Bear Co., Inc. v. 1– 800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598 (1970)). In addition, “[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323– 24, 106 S.Ct. 2548 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must identify evidence in the record that creates a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986)). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248 (citation omitted). As for the genuineness requirement, a dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party.” Id. As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) (citation omitted; emphasis added). 6 Similarly, inadmissible hearsay is insufficient to create a genuine issue of fact, “absent a showing that admissible evidence will be available at trial.” Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) (citations omitted). 7 B. Legal Standard Governing Unopposed Motions *9 In this District, when a non-movant fails to oppose a legal argument asserted by a movant in support of a motion, the movant's burden with regard to that argument has been lightened such that, in order to succeed on that argument, the movant need only show that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(b) (3) (“Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein....”); Rusyniak v. Gensini, 07–CV–0279, 2009 WL 3672105, at * 1, n. 1 (N.D.N.Y.Oct.30, 2009) (Suddaby, J.) (collecting cases); Este–Green v. Astrue, 09–CV–0722, 2009 WL 2473509, at *2 & n. 3 (N.D.N.Y.Aug.7, 2009) (Suddaby, J.) (collecting cases). C. Plaintiff's Claims 1. Title VII Title VII prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of,” inter alia, “such individual's race, color, religion, sex, or national origin.” 42 U .S.C. § 2000e–2(a)(1). Liability under Title VII is limited to employers, not individuals. See Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012). Filing a charge with the EEOC is a jurisdictional prerequisite to a private civil action under Title VII. See Morgan v. NYS Attorney Gen.'s Office, No. 11–CV–9389, 2013 WL 491525, at *6 (S.D.N.Y. Feb. 8, 2013) (citing Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 146 (2d Cir.2012) (citing 42 U.S.C. §§ 2000e–5(e) (1), (f)(1))). Claims not raised before the EEOC may still be brought in federal court as long as they are “reasonably related” to the claims that were filed with the agency. See id. (quoting Butts v. N.Y.C. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir.1993), superseded by statute on other grounds as recognized in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.1998)). A claim is “reasonably related” where the conduct complained of “would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Butts, 990 F.2d at 1402. When determining whether a claim is reasonably related to the claims filed with the EEOC, courts should focus “on the factual allegations made in the EEOC charge itself, describing the discriminatory conduct about which a plaintiff is grieving,” and “whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination on both bases.” Williams v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir.2006) (internal alteration and citation omitted). “[I]t is the substance of the charge and not its label that controls.” Mathirampuzha v. Potter, 548 F.3d 70, 76–77 (2d Cir.2008) (quoting Deravin v. Kerik, 335 F.3d 195, 200–01 (2d Cir.2003)). “The central question is whether the complaint filed with the [EEO] gave th[e] agency adequate notice to investigate discrimination on both bases.” Mathirampuzha, 548 F.3d at 76–77 (citing Williams, 458 F.3d at70). a. Hostile Work Environment Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 225 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 *10 In enacting Title VII, Congress intended to protect against “the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.” Redd v. New York Div. of Parole, 678 F.3d 166, 174–175 (2d Cir.2012) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993)). In order to establish a claim for a hostile work environment under Title VII, the underlying harassment alleged “must be sufficiently severe or pervasive,” both subjectively and objectively, “to alter the conditions of [the plaintiff's] employment and create an abusive working environment.” Redd, 678 F.3d at 175 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U .S. 57, 67, 106 S.Ct. 2399 (1986); Harris, 510 U.S. at 21–22, 114 S.Ct. 367). Further, the plaintiff must establish that the hostile or abusive treatment was because of his membership in a class of persons protected by Title VII. See Redd, 678 F.3d at 175. A determination of whether an environment is objectively hostile or abusive requires an evaluation of all the circumstances, such as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Redd, 678 F.3d at 175 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367). Whether an environment is subjectively hostile or abusive may be determined by the effect on the plaintiff's psychological well-being, although no single factor is required. See id. In order to establish his claim for hostile work environment, a plaintiff need not show that his “working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered h[is] working conditions.” Redd, 678 F.3d at 175 (quoting Pucino v. Verizon Commc'ns, Inc., 618 F.3d 112, 119 (2d Cir.2010)). Typically, isolated incidents will not suffice to establish a hostile work environment, “although we have often noted that even a single episode of harassment can establish a hostile work environment if the incident is sufficiently severe.” Redd, 678 F.3d at 175– 176 (citing, inter alia, Feingold v. New York, 366 F.3d 138, 150 (2d Cir.2004) (“[A] single act can create a hostile work environment if it in fact work[s] a transformation of the plaintiff's workplace.” (internal quotation marks omitted)). “For racist comments, slurs, and jokes to constitute a hostile work environment, there [generally] must be more than a few isolated incidents of racial enmity.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (quotation marks omitted). It is important to keep in mind, however, that “while the central statutory purpose of Title VII was eradicating discrimination in employment, Title VII does not set forth a general civility code for the American workplace.” Redd, 678 F.3d at 176 (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 771, 96 S.Ct. 1251 (1976); Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405 (2006). Title VII is “meant to protect individuals from abuse and trauma that is severe[, but is] not intended to promote or enforce civility, gentility or even decency.” Taylor v. New York City Dept. of Educ ., No. 11–CV–3582, 2012 WL 3150388, at *8 (E.D.N.Y. Aug. 2, 2012) (quoting Curtis v. DiMaio, 46 F.Supp.2d 206, 213–14 (E.D.N.Y.1999)). Thus, “the ‘mere utterance of an epithet which engenders offensive feelings' is insufficient to sustain a hostile work environment claim.” Tolbert v. Smith, 09–CV–6579, 2014 WL 906158, at *19 (W.D.N.Y. Mar. 7, 2014) (quoting Hannon v. Wilson Greatbatch, Ltd., No. 00–CV–0203, 2002 WL 1012971, *7 (W.D.N.Y. Apr. 24, 2002). See also Brown v. Coach Stores, Inc., 163 F.3d 706 (2d Cir.1998) (occasional offensive racial comments are not sufficiently severe or pervasive to establish a hostile work environment). *11 In addition to showing that he was subjected to a hostile work environment, a plaintiff must also establish that the conduct which created the hostile environment may be imputed to his employer. See Shiner v. State Univ. of New York, No. 11–CV–1024, 2012 WL 5398658, at *4 (W.D.N.Y. Nov. 2, 2012) (citing Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d. Cir.2001)). The actions of a plaintiff's coworkers will be imputed to the employer if the employer “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” Wiercinski v. Mangia 57, Inc., No. 09–CV– 4413, 2012 WL 2319142, at * 10 (E.D.N.Y. June 19, 2012) (quoting Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.1995)). However, the actions of a plaintiff's supervisor are “automatically imputed to the employer unless the employer is able to successfully raise an affirmative defense that examines the reasonableness of the conduct of both the employer and the employee.” Shiner, 2012 WL 5398658, at *4. This defense requires the employer to show that it “exercised reasonable care to prevent and correct any Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 226 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 harassing behavior” and that the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257 (1998). Where an employer “maintains a policy against [ ] harassment and provides a process through which employees can complain about violations of that policy,” it will have met the first prong of its affirmative defense. Joyner v. City of New York, No. 11–CV–4958, 2012 WL 4833368, at *3 (S.D.N.Y. Oct. 11, 2012). Further, where a plaintiff fails to take advantage of that system until more than a year after the alleged harassment began, and where the offensive conduct ceased once plaintiff reported it, an employer will establish the second prong of its defense. See Joyner, 2012 WL 4833368, at *3 (citing Leopold, 239 F.3d at 246). b. Race Discrimination and Disparate Treatment At the summary judgment stage, properly exhausted Title VII claims are ordinarily analyzed under the familiar burden- shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), and its progeny. See Mathirampuzha, 548 F.3d at 78 citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506–07, 113 S.Ct. 2742 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53, 101 S.Ct. 1089 (1981)). At the first stage of the McDonnell Douglas analysis, the plaintiff bears the burden to show that “(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination.” Bir v. Pfizer, Inc., 510 F. App'x 29, 30 (2d Cir.2013) (quoting Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012) (internal quotation marks and alteration omitted)). “A showing of disparate treatment—that is, a showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group—is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case.” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003). *12 In order to establish a prima facie case of discrimination based on failure to promote under Title VII, a plaintiff ordinarily must demonstrate that: “(1) [he] is a member of a protected class; (2)[he] applied and was qualified for a job for which the employer was seeking applicants; (3)[he] was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications.” Yu v. New York City Housing Development Corp., 494 F. App'x 122, 124–125 C.A.2 (2d Cir.2012) (quoting Estate of Hamilton v. City of New York, 627 F.3d 50, 55 (2d Cir.2010) (quotation marks omitted). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to provide a legitimate non- discriminatory reason for the employment action at issue. See Bir, 2013 WL 362973, at*1 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097 (2000)). If the employer makes this showing, the burden then shifts back to the plaintiff to show that the employer's proffered explanation is a pretext for discrimination. Id. (citing Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d Cir.2010)). “ ‘A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.’ A change that is ‘materially adverse’ could consist of, inter alia, ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.’ “ Morgan, 2013 WL 491525, at *5 (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000)). c. Retaliation To make out a prima facie case of retaliation under Title VII, a plaintiff must show [the following]: (1) participation in a protected activity known to Defendants; (2) an adverse employment action; and (3) a causal connection between the two.” Schanfield v. Sojitz Corp. of Am., 663 F.Supp.2d 305, 341 (S.D.N.Y.2009) (collecting cases). “The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.2000) (noting that a protected activity need not “rise to the level of a formal complaint in order to receive statutory protection”). Protected activities encompass “making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.” Sumner v. United States Postal Serv., 899 F.2d Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 227 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 203, 209 (2d Cir.1990). A plaintiff “need not establish that the conduct [he] opposed was in fact a violation of [the law],” Bush v. Fordham Univ., 452 F.Supp.2d 394, 416 (S.D.N.Y.2006), but he must demonstrate a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law,” id. (quoting Sumner, 899 F.2d at 209). The reasonableness of a plaintiff's belief is to be assessed in light of the totality of the circumstances. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996). *13 Adverse employment action is any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006). “[T]ermination is an adverse employment action.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.2006). Similarly, being laid off constitutes adverse employment action. See Galabya, 202 F.3d at 640; Walker v. City of New York, 98–CV–2695, 2002 WL 31051534, at *4 (E.D.N.Y. July 22, 2002) (“Plaintiff's temporary lay-off during the summer of 1997[was] sufficient to meet Plaintiff's burden of putting forth evidence to show that the terms of her employment were altered.”). A plaintiff may establish a causal connection between the protected activity and the adverse employment action “either (1) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant[,] or (2) indirectly, by showing that the protected activity was followed closely by discriminatory treatment.” Schanfield, 663 F.Supp.2d at 343 (citing Knight v. City of New York, 303 F.Supp.2d 485, 496 (S.D.N.Y.2004)). “Direct evidence giving rise to an inference of discrimination may include ‘a showing that the employer criticized the plaintiff's performance in ethnically degrading terms, made invidious comments about others in the employee's protected group, or treated employees not in the protected group more favorably.’ “ Id. (quoting Hunter v. St. Francis Hosp., 281 F.Supp.2d 534, 542 (E.D.N.Y.2003)). In order for a court to “accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case,” the temporal proximity must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508 (2001) (citing cases finding temporal proximity of three months and more to be insufficient). Claims of retaliation under Title VII are governed by the burden-shifting analysis announced in McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. See Guzman v. News Corp., No. 09–CV–9323, 2013 WL 5807058, at * 19 (S.D.N.Y. Oct. 28, 2013) (citing Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir.2010); Lennert–Gonzalez v. Delta Airlines, Inc., No. 11–CV–1459, 2013 WL 754710, at *9 (S.D.N.Y. Feb. 28, 2013)). See also Puglisi v. Town of Hempstead, 545 F. App'x 23, ––––, 2013 WL 5663223 (2d Cir. Oct. 18, 2013) (discussing Title VII retaliation claim in context of McDonnell–Douglas burden-shifting framework). “Under McDonnell Douglas, once the plaintiff has established a prima facie case of retaliation, the burden of production shifts to the defendant to proffer a legitimate, nondiscriminatory business rationale to justify its adverse employment action.” Schanfield, 663 F.Supp.2d at 343. *14 If the employer demonstrates a legitimate, non- discriminatory reason, then the burden shifts back to the plaintiff to show that, ‘but for’ the protected activity, she would not have been terminated. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013). The Supreme Court recently clarified that ‘a plaintiff making a retaliation claim under [Title VII] must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer,’ as distinct from ‘a motivating factor,’ which had previously been the standard in the Second Circuit. Id. at 2534; see Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 206 (2d Cir.2006). Guzman, 2013 WL 5807058, at * 19. See also Puglisi, 2013 WL 5663223; Leacock v. Nassau Health Care Corp., No. 08–CV–2401, 2013 WL 4899723, at *11 (E.D.N.Y. Sept. 11, 2013); Wesley–Dickson v. Warwick Valley Cent. Sch. Dist., ––– F.Supp.2d. ––––, ––––, 2013 WL 5338516, at *18 (S.D.N.Y.2013). 2. NYHRL “Because New York courts require the same standard of proof for claims brought under the NYHRL as for those brought under Title VII,” those claims may be analyzed in tandem. Leopold v. Baccarat, Inc. 174 F.3d 261, 264, n. 1 (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1304, n. 4 (2d Cir.1995), abrogated on other grounds by Burlington Indus., 524 U.S. 742, 118 S.Ct. 2257). See also Salmon v. Our Lady of Victory Hosp., 514 F.3d 217, 226, n. 2 (2d Cir.2008). Accordingly, a Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 228 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 court's ruling regarding a plaintiff's Title VII claims applies with equal force to those claims under the NYHRL. See Leopold, 174 F.3d at 264, n. 1. Under the NYHRL, however, a plaintiff may allege claims against an individual defendant as an aider or abettor of NYHRL violations. In order for a plaintiff to recover against an aider or abettor of NYHRL violations, she must establish “(1) that [ ]he engaged in conduct protected by the NYHRL; (2) there is a causal connection between the protected conduct and the alleged [violations] of the NYHRL; and (3) that [the defendant] ‘actually participated’ in the discrimination.” Beattie v. Guilderland Cent. Sch. Dist., 124 F.Supp.2d 802, 805 (N.D.N.Y.2000) (citations omitted). See also N.Y. Exec. Law § 296.1(a) (McKinney 2012). Further, a plaintiff must show that the defendant “aided or abetted a primary violation of the NYHRL committed by another employee or the business itself.” Jordan v. Cayuga Cnty., No. 01–CV1037, 2004 WL 437459, at *4 (N.D.N.Y. Feb. 9, 2004) (quoting Bennett v. Progressive Corp., 225 F.Supp.2d 190, 213 (N.D.N.Y.2002) (internal quotation and emphasis omitted)). See DeJohn v. Wal–Mart Stores East, LP, No. 09–CV–1315, 2012 WL 3679204, at * 16 (N.D.N.Y. Aug. 17, 2012). However, an individual cannot be held liable for aiding and abetting their own violations of the NYHRL. See Reid v.. Ingerman Smith LLP, 876 F.Supp.2d 176, 186 (E.D.N.Y.2012). Finally, an employee is not individually subject to suit as an aider or abettor under the NYHRL “if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others.” Miotto v. Yonkers Public Schools, 534 F.Supp.2d 422, 427 (S.D.N.Y.2008) (quoting Patrowich v. Chemical Bank, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 660, 473 N.E.2d 11 (1984)). See also Tomka, 66 F.3d at 1317. 3. 42 U.S.C. § 1983 *15 In order to establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff must show “(1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of state ... law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir.2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920 (1980) (internal quotations omitted)). “Section 1983 is not itself a source of substantive rights[,] but merely provides a method for vindicating federal rights elsewhere conferred[.]” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689 (1979)). “[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Kregler v. City of New York, 821 F.Supp.2d 651, 655–656 (S.D.N.Y.2011) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotation marks omitted)). A plaintiff may allege the personal involvement of a defendant who occupies a supervisory position by alleging that the defendant: “(1) directly participated in the infraction; (2) failed to remedy the wrong after learning of the violation; (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) exhibited ‘gross negligence’ or ‘deliberate indifference’ to the constitutional rights of [the plaintiff] by having actual or constructive notice of the unconstitutional practices and failing to act.” Kregler, 821 F.Supp.2d at 655– 56 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright, 21 F.3d at 501). A municipality may only be liable on a § 1983 claim “if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir.2012) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690–91, 98 S.Ct. 2018 (1978)). In the absence of such a custom or policy, a municipality may not be held liable on a § 1983 claim for the actions of its employees under a theory of vicarious liability. See Jones, 691 F.3d at 80 (citing Monell, 436 U.S. at 691, 98 S.Ct.2018). Thus, isolated acts of municipal employees are typically not sufficient to establish municipal liability. However, acts done “pursuant to municipal policy, or [that] were sufficiently widespread and persistent to support a finding that they constituted a custom, policy, or usage of which supervisory authorities must have been aware” would justify liability of the municipality. Jones, 691 F.3d at 81. Further, “a municipal custom, policy, or usage would be inferred from evidence of deliberate indifference of supervisory officials to such abuses.” Id. a. First Amendment Retaliation *16 “[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Dillon v. Suffolk Cnty. Dep't of Health Servs., 917 F.Supp.2d 196, 205 (E.D.N.Y.2013) (quoting Garcetti v. Caballus, 547 U.S. 410, 417, 126 S.Ct. 1951 (2006)). In order to establish a claim for First Amendment retaliation, a public employee must show that (1) he engaged in “constitutionally protected speech” because Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 229 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 he spoke as a citizen on a matter of public concern; (2) he suffered an adverse employment action; and (3) the speech at issue was a substantial or motivating factor in the decision. Dillon, 2013 WL 208950, at *6 (quoting Johnson v.. Ganim, 342 F.3d 105, 112 (2d Cir.2003)). The threshold inquiry is whether the employee spoke as a citizen on a matter of public concern. “If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech.” Garcetti, 547 U.S. at 418. “The Supreme Court has defined ‘a matter of public concern’ as one that ‘relat[es] to any matter of political, social, or other concern to the community.’ “ Sousa v. Roque, 578 F.3d 164, 170 (2d Cir.2009) (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684 (1983)). In the context of a First Amendment retaliation claim, an adverse action is any “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights [.]” Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006). Such actions can include “discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand,” or may include “lesser actions” such as “negative evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class preparation periods, failure to process teacher's insurance forms, transfer from library to classroom teaching as an alleged demotion, and assignment to classroom on fifth floor which aggravated teacher's physical disabilities.” Zelnik, 464 F.3d at 226 (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999)). b. Equal Protection A plaintiff may establish a claim for the violation of her right to equal protection under the Fourteenth Amendment based on race discrimination, since the Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). “Once action under color of state law is established, the analysis for such claims is similar to that used for employment discrimination claims brought under Title VII, the difference being that a § 1983 claim, unlike a Title VII claim, can be brought against individuals.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006) (quoting Feingold, 366 F.3d at159 & n. 20). Thus, claims for hostile work environment and disparate treatment may be brought under § 1983 as equal protection claims. See Demoret, 451 F.3d at 149. However, a claim of retaliation for complaining of race discrimination is not properly brought under the Equal Protection Clause. See Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996). c. Due Process *17 The Due Process Clause of the Fourteenth Amendment essentially provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Thus, in order to prevail on a due process cause of action, a plaintiff must establish the deprivation of some tangible property or liberty interest. See Patterson v. City of Utica, 370 F.3d 322, 329–30 (2d Cir.2004) (“stigma plus” claim requires a showing of the loss of one's reputation coupled with a more tangible liberty or property interest); DeMuria v. Hawkes, 328 F.3d 704, 705 (2d Cir.2003) (substantive due process claim requires plaintiff to identify the deprivation of a protected liberty or property interest, in addition to the requisite consciousshocking behavior on the part of the government); McMenemy v. City of Rochester, 241 F.3d 279, 285–286 (2d Cir.2001) (to establish a procedural due process claim, plaintiff must show that he possessed a protected liberty or property interest, of which he was deprived without due process). When an individual claims to have a property interest related to employment, courts may look to the relevant contract of employment-either explicit or implicit-or its functional equivalent to determine whether the individual has such a property interest. See Board of Regents v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701 (1972); Ciambriello v. County of Nassau, 292 F.3d 307, 314 (2d Cir.2002). Where a government employee has a constitutionally protected property interest in his employment, “some kind of hearing [is required] prior to [termination].” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487 (1985) (internal quotation marks and citation omitted). However, in general, something less than a full evidentiary hearing is sufficient prior to adverse action. Before being terminated, the tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. As long as a full post-termination hearing Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 230 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 is provided for, the pre-termination hearing may be minimal. Arteta v. Cnty. of Orange, 141 F. App'x. 3, 7 (2d Cir.2005) (citing Loudermill, 470 U.S. at 545–46, 105 S.Ct. 1487; Locurto v. Safir, 264 F.3d 154, 173–74 (2d Cir.2001)) (quotations omitted). It is a well-established legal principle in the Second Circuit “that there is no [procedural] due process violation where ... pre-deprivation notice is provided and the deprivation at issue can be fully remedied through the grievance procedures provided for in a collective bargaining agreement.” Adams v. Suozzi, 517 F.3d 124, 128 (2d Cir.2008) (citing cases). See also Coollick v. Hughes, 699 F.3d 211, 217 (2d Cir.2012). A government employee may have a cause of action for violation of his right to substantive due process where a government defamation occurs in the course of dismissal from employment resulting in a deprivation of a liberty interest, commonly referred to as a stigma plus claim. See Lawson v. Rochester City Sch. Dist., 446 F. App'x. 327, 329 (2d Cir.2011) (citing Patterson, 370 F.3d at 330). In order to prevail on such a claim, a plaintiff must prove (1) the utterance of a statement injurious to his reputation that is capable of being proved false and that plaintiff claims is false; and (2) some tangible and material state-imposed burden in addition to the stigmatizing statement. See Monserrate v. N.Y. State Senate, 599 F.3d 148, 158 (2d Cir.2010). “An employee's liberty interest is not ordinarily implicated by statements in connection with his termination of employment if there has been no public disclosure of the reasons for the discharge.” Walsh v. Suffolk Cnty. Police Dep't, 341 F. App'x 674, 675 (2d Cir.2009) (citing Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 (1976) (“Since the ... communication was not made public, it cannot properly form the basis for a claim that petitioner's interest in his ‘good name, reputation, honor, or integrity’ was thereby impaired.”). Moreover, a plaintiff cannot prevail on a substantive due process claim unless he shows that the defendants infringed a liberty interest in an arbitrary or irrational manner and in such a way as to “shock the conscience.” Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 173 (2d Cir.2002). See also Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir.2001). 4. 42 U.S.C. § 1981 *18 Employment discrimination claims brought under Section 1981, like those brought under Section 1983, are subject to the same substantive standards as claims brought pursuant to Title VII and NYHRL. See Jackson v. City of New York, No. 11–CV–3028, 2014 WL 1010785, at *4 (E.D.N.Y. Mar. 17, 2014). Procedurally, employment discrimination claims brought pursuant to Sections 1981 and 1983 are also analyzed under the McDonnell Douglas framework. See id. 8 Finally, Section 1981 claims against a municipality, like Section 1983 claims, are subject to analysis under Monell. See Lang. v. New York City Health & Hosps. Corp., No. 12–CV– 5523, 2013 WL 4774751, at * 5 (S.D.N.Y. Sept. 5, 2013). 5. New York State Constitution Where claims are brought pursuant to the New York State Constitution that mirror claims brought under Section 1983, courts in this Circuit have held that there is no private right of action on the state constitutional claims. See Canzoneri v. Incorporated Vill. of Rockville Ctr., 2013 WL 6330671, at *11 (E.D.N.Y. Dec. 5, 2013) (citing Krug v. Cnty. of Rennselaer, 559 F.Supp.2d 223, 247–48 (N.D.N.Y.2008)). See also Clayton v. City of Poughkeepsie, 2007 WL 2154196, at *7 (S.D.N.Y. June 21, 2007) (quoting De Vito v. Barrant, No. 03–CV–1927, 2005 WL 2033722, at *6–7 (E.D.N.Y. Aug. 23, 2005)); Flores v. City of Mount Vernon, 41 F.Supp.2d 439, 446–47 (S.D.N.Y.1999). II. ANALYSIS A. Whether A Discriminatory Overtime Claim Exists in This Action After carefully considering the matter, the Court answers this question in the negative, for the reasons stated by Defendants in their memorandum of law. (Dkt No. 100–8 at 36–43 [Defs.' Mem. of Law].) To those reasons, the Court adds the following points. Plaintiff fails to plead a claim for discriminatory overtime in his Third Amended Complaint. Moreover, Plaintiff has failed to oppose Defendants' motion for summary judgment in this regard. As indicated above in Point II.B. of this Decision and Order, in this District, when a non-movant fails to oppose a legal argument asserted by a movant in support of a motion, the movant's burden with regard to that argument has been lightened such that, in order to succeed on that argument, the movant need only show that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. At the very least, Defendants have met Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 231 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 the lightened burden that was created by Plaintiff's failure to respond. In any event, the Court would reach the same conclusion even if it were to subject the Defendants' argument to the more rigorous scrutiny appropriate for a contested argument. The only evidence of Plaintiff being denied overtime occurred in January 2006, before the period that is relevant to the claims in this action. Moreover, the evidence reflects that Plaintiff grieved the issue, which was resolved in his favor. Accordingly, there is no evidence that Plaintiff endured a materially adverse change in the terms and conditions of his employment as it relates to overtime. Therefore, Defendants' motion for summary judgment on any claim of discriminatory or retaliatory denial of overtime is granted. B. Whether Plaintiff's Claims Under Article I of the New York State Constitution Must Be Dismissed *19 After carefully considering the matter, the Court answers this question in the affirmative, for the reasons stated by Defendants in their memorandum of law. (Dkt No. 100–8 at 70–71 [Defs.' Mem. of Law].) To those reasons, the Court adds the following points. First, Plaintiff's purported claim under the New York State Constitution is that Defendants deprived him of his rights under Article I, essentially claiming a violation of the entire Bill of Rights. Accordingly, Plaintiffs' New York Constitutional claim is overly broad and therefore, should be dismissed for failure to state a claim. In an abundance of caution, the Court interprets Plaintiff's Third Amended Complaint to allege claims under Article I, Sections 6 (due process), 8 (freedom of speech), and 11 (equal protection). Second, and in any event, as indicated above in Point II.C.5. of this Decision and Order, where Plaintiff's state constitutional claims mirror claims brought under Section 1983, courts in this Circuit have held that there is no private right of action on the state constitutional claims. Accordingly, for this reason alone, Defendants' motion for summary judgment on Plaintiff's 17th cause of action under the New York State Constitution is granted. C. Whether Plaintiff's Claims Against John Doe(s) and Jane Doe(s) Must Be Dismissed After carefully considering the matter, the Court answers this question in the affirmative, for the reason stated by Defendants in their memorandum of law. (Dkt No. 100–8 at 71 [Defs.' Mem. of Law].) To that reason, the Court adds the following point. In opposition to Defendants' legally supported motion for summary judgment seeking dismissal of the John and Jane Doe defendants Plaintiff makes the bald and completely unsupported assertion that Defendants “have no standing” in that regard. (Dkt. No. 104 at 22 [Pl.'s Mem. of Law].) Plaintiff does not dispute that discovery in this action, which lasted in excess of two years, is complete, nor does he argue that further discovery would reveal the identity of these unnamed defendants. Accordingly, the completion of discovery and Plaintiff's failure to identify the John and Jane Doe defendants mandates their dismissal. See Epps v. City of Schenectady, No. 10–CV–1101, 2013 WL 717915, at *5 (N.D.N.Y. Feb. 27, 2013). Therefore, Defendants' motion for summary judgment is granted in this regard. D. Whether Plaintiff's Breach of Contract Claim Against Defendants Must Be Dismissed After carefully considering the matter, the Court answers this question in the affirmative, for the reason stated by Defendants in their memorandum of law. (Dkt No. 100–8 at 67–68 [Defs.' Mem. of Law].) To that reason, the Court adds the following point. In opposition to Defendants' motion in this regard, Plaintiff cites inapposite caselaw and fails to address the point made by Defendants, which is that in order to pursue a breach of contract claim against the City under the undisputed facts of this case, Plaintiff must have also pursued a claim against Local 400 for breach of the duty of fair representation. See Lore v. City of Syracuse, 670 F.3d 127, 151 (2d Cir.2012). Plaintiff fails to identify any such claim against Local 400, nor has he alleged such a claim against Local 400 in this action. Accordingly, the caselaw Plaintiff cites, for the proposition that whether a union has breached its duty of fair representation is a fact question for a jury to decide, is irrelevant to the pending issue before the Court. (See Dkt. No. 104 at 20 [Pl.'s Mem. of Law citing Smith v. Hussmann Refrigerator Co., 619 F.2d 1229, 1244–45 (8th Cir.1980) ].) Finally, it is worth noting that Plaintiff's misunderstanding of the law in this regard is dubious considering the supporting legal authority cited by Defendants, Lore v. City of Syracuse, is a case out of the Second Circuit Court of Appeals, a party to which was represented by Plaintiff's counsel in this action. *20 Therefore, Defendants' motion for summary judgment regarding Plaintiff's breach of contract claim is granted. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 232 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 E. Whether Plaintiff's Claims Alleging Discrimination and Retaliation Due to the City's Contestation of His Application for Unemployment Benefits Must Be Dismissed After carefully considering the matter, the Court answers this question in the affirmative, for the reasons stated by Defendants in their memorandum of law in chief as well as their reply memorandum of law. (Dkt No. 100–8 at 26– 27 [Defs.' Mem. of Law]; Dkt. No. 124 at 14–15 [Defs.' Reply Mem. of Law].) To those reasons, the Court adds the following point. Plaintiff opposes Defendants' motion in this regard, arguing that the City's contestation of his application for unemployment benefits was an adverse action. However, Plaintiff concedes that his retaliation claims in this regard are asserted solely against the City, despite the allegations in the Third Amended Complaint. Plaintiff acknowledges that courts disagree whether an employer's decision to contest unemployment benefits constitutes an adverse action, but cites only one case in support of his argument that opposing unemployment benefits is adverse action, ostensibly suggesting that this Court should decide the issue here accordingly. See Brown v. JP Morgan Chase Bank, No. 12–CV–544, 2013 U.S. Dist. LEXIS 95946, at *21–22 (E.D.N.Y. Apr. 10, 2013). 9 Nonetheless, this Court finds instructive and persuasive the caselaw holding that an employer's opposition of a terminated employee's application for unemployment benefits is not adverse action for purposes of a retaliation claim. See Burnett v. Trinity Inst. Homer Perkins Ctr., Inc., No. 10–CV–681, 2011 WL 281023, at *3 (N.D.N.Y. Jan. 25, 2011) (citing Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997); U.S. v. N.Y. City Transit Auth., 97 F.3d 672, 677 (2d Cir.1996)). See also Belardo v. Con–Way Transp. Servs., Inc., No. 02–CV5406, 2005 WL 885016, at *8 (E.D.N.Y. Mar. 28, 2005) (“[A]n employer's actions in objecting to the provision of unemployment benefits to a former employee is not an adverse employment action cognizable under the employment discrimination laws.”); Jenkins v. St. Luke's–Roosevelt Hosp. Ctr., No. 09–CV–12, 2009 WL 3682458, at *9 (S.D.N.Y. Oct. 29, 2009) (granting motion to dismiss retaliation claim regarding employer's cessation of unemployment benefits); Barriera v. Bankers Trust, No. 98–CV–3641, 2003 WL 22387099, at *7 (S.D.N.Y. Oct. 20, 2003) (finding no adverse employment action where employer opposed plaintiff's unemployment benefits claim, failed to award severance pay, and informed the EEOC that the plaintiff resigned); Roman v. Cornell Univ., 53 F.Supp.2d 223, 245 (N.D.N.Y.1999) (holding that employer's opposition to plaintiff's unemployment benefits application does not constitute an adverse employment action). Therefore, Defendants' motion for summary judgment regarding Plaintiff's retaliation claims as it relates to the City's contestation of his unemployment benefits is granted. F. Whether Plaintiff's Hostile Work Environment Claims Must Be Dismissed *21 After carefully considering the matter, the Court answers this question in the affirmative, in part for the reasons stated by Defendants in their memorandum of law in chief as well as their reply memorandum of law. (Dkt No. 100–8 at 31–34 [Defs.' Mem. of Law]; Dkt. No. 124 at 12–14 [Defs.' Reply Mem. of Law].) To those reasons, the Court adds the following analysis. Defendants point to Plaintiff's deposition testimony to demonstrate the lack of evidence supporting Plaintiff's hostile work environment claim. Specifically, Plaintiff testified that he felt his employment environment was hostile because nobody on his crew liked him nor would they communicate with him, despite the fact that they never made any racial comments to him. (See Dkt. No. 108 at 264–264 [Dep. of Guynell Wright, Jan. 18, 2013].) Plaintiff further testified that he felt like he was walking on egg shells at work because he feared being disciplined for things that other people were not disciplined for, and that despite being a victim when a white employee lifted his leg up behind Plaintiff's head and when another employee patted his butt, Plaintiff was still disciplined. 10 (Id., at 267–268.) Defendants argue that these instances do not rise to the level of severity or pervasiveness to establish hostile work environment and that Plaintiff has not established that the alleged hostile or abusive treatment was because of his race. Plaintiff, in opposition, fails to identify any evidence in the record to create a question of fact on the issues of severity or pervasiveness or the issue of whether the alleged hostile treatment was because of his race. Instead, Plaintiff argues, in conclusory fashion, that “there is more than sufficient evidence for a reasonable jury to conclude that Plaintiff's work environment was filled with discriminatory intimidation, Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 233 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 ridicule and insult that the terms and conditions of his employment were altered for the worse.” (Dkt. No. 104 at 12 [Pl.'s Mem. of Law].) Accordingly, Plaintiff has not met his burden to identify any fact question for a jury to decide regarding his hostile work environment claim and summary judgment may be granted on this basis alone. However, in an abundance of caution, the Court has reviewed the record to identify any other evidence that could possibly support Plaintiff's hostile work environment claim. In his affirmation, Plaintiff states that when Nolan was crew leader an employee called Plaintiff the N word in Nolan's presence, but Nolan asked Plaintiff to shake the other employee's hand to resolve the conflict, without disciplining the other employee. (See Dkt. No. 106 at 10, ¶ 56 [Pl.'s Aff.].) Plaintiff further asserts that, “[u]pon information and belief, Department of Personnel employee Terri Macri has made statements to other DPW employees that she does not approve of mixed race babies.” (Id., ¶ 60.) Other evidence includes Plaintiff's assertion that Nolan said that “no black man was ever going to make anything on my watch” in 2007. (Id., at 8, ¶ 46.) *22 To be sure, even assuming the admissibility of Plaintiff's double hearsay statements attributable to Terri Macri, their relevance is dubious considering they were made outside the presence of Plaintiff. See, e.g., Greaves v. St. Luke's– Roosevelt Hosp. Ctr., 03–CV–7424, 2005 U.S. Dist. LEXIS 4082, at *33 (S.D.N.Y. March 17, 2005) (rejecting plaintiff's claim of hostile work environment because, “[w]ith the exception of a single hearsay remark, made outside his presence, Greaves fails to point to any discriminatory insult or abuse”); cf. Benjamin v. Metro. Transp. Auth., 07–CV–3561, 2012 WL 3188764, at *12 (S.D.N.Y. Aug. 2, 2012) (“While some of Benjamin's fellow Plaintiffs also make allegations about a hostile work environment, the record does not indicate that Benjamin was aware of any comments made to other Plaintiffs, let alone was present to hear them and have them impact his own work environment.”). Moreover, Plaintiff's assertion regarding another employee calling him the N- word in Nolan's presence is also of questionable relevance because, while Plaintiff fails to state with specificity when the statement was made, he asserts that it was made when Nolan was a crew leader, which would have been prior to the relevant time period at issue in this action. (See Dkt. No. 117, at 6 [Dep. of Andrew Nolan, Jan. 8, 2013].) Nonetheless, even assuming the truth, relevance and admissibility of all of the aforementioned evidence, Plaintiff still cannot identify a question of fact regarding his hostile work environment claims. As indicated in Point II.C. 1.a. of this Decision and Order, occasional offensive racial comments are not sufficiently severe or pervasive in order to establish a hostile work environment claim. Accordingly, Defendants' motion for summary judgment on Plaintiff's hostile work environment claims is granted. G. Whether Plaintiff's Due Process Claims Must Be Dismissed After carefully considering the matter, the Court answers this question in the affirmative, in part for the reasons stated by Defendants in their memorandum of law in chief as well as their reply memorandum of law. (Dkt No. 100–8 at 68– 70 [Defs.' Mem. of Law]; Dkt. No. 124 at 15–16 [Defs.' Reply Mem. of Law].) To those reasons, the Court adds the following analysis. First, the Court notes that the Third Amended Complaint contains an allegation that “Plaintiff maintained a property and liberty interest in his good name and reputation” which was deprived by Defendants. (Dkt. No. 45 ¶¶ 103–104 [Pl.'s Third Am. Compl.].) In his papers in opposition to Defendants' motion for summary judgment on his due process claim, Plaintiff makes no mention of a liberty interest in his reputation, nor does the record contain any evidence of an offensive statement that was made public. Accordingly, to the extent any substantive due process claim was intended by Plaintiff, it is dismissed from this action. Second, to the extent Plaintiff alleges a procedural due process claim based on any employment action other than termination, those claims are dismissed. Courts in this Circuit hold that an employee does not have a constitutionally protected interest to be free from employment actions other than termination. See Barnes v, Pilgrim Psychiatric Ctr., 860 F.Supp.2d 194, 204 (E.D.N.Y.2012) (citing cases). *23 Finally, regarding Plaintiff's termination, it is clear that the grievance procedure set forth in the CBA provided Plaintiff the appropriate pre-deprivation hearing as required by the Due Process Clause. See Adams, 517 F.3d at 128. Regarding post-deprivation procedures, Plaintiff argues that the CBA “replaces N.Y. Civil Service Law § 75 and any other procedures to challenge the termination of employment.” (Dkt. No. 104 at 17 [Pl.'s Mem. of Law].) To be sure, the CBA provides, in relevant part, that the grievance procedure outlined therein “shall apply in lieu of Section 75 and 76 of the Civil Service Law for any employee who Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 234 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 would be covered by those sections.” (Dkt. No. 96–2 at 52 [Ex. B to Thompson Decl.].) However, there is nothing in the CBA or otherwise that prevents Plaintiff from seeking a post-deprivation hearing. “[T]he availability of an Article 78 proceeding after the fact provides all the process that is due.” Kruggel v. Town of Arietta, No. 11–CV–1250, 2013 WL 5304184, at *4 (N.D.N.Y. Sept. 19, 2013) (quoting Sebast v. Mahan, 754 F.Supp.2d 423, 431–32 (N.D.N.Y.2010)). For these reasons, Defendants' motion for summary judgment regarding Plaintiff's due process claims is granted. H. Whether Plaintiff's Claims Based on Discriminatory Assignments Must Be Dismissed After carefully considering the matter, the Court answers this question in the affirmative, in part for the reasons stated by Defendants in their memorandum of law in chief as well as their reply memorandum of law. (Dkt No. 100–8 at 43–45 [Defs.' Mem. of Law]; Dkt. No. 124 at 14 [Defs.' Reply Mem. of Law].) To those reasons, the Court adds the following analysis. Plaintiff has failed to oppose Defendants' motion for summary judgment in this regard. As indicated above in Point II.B. of this Decision and Order, in this District, when a non- movant fails to oppose a legal argument asserted by a movant in support of a motion, the movant's burden with regard to that argument has been lightened such that, in order to succeed on that argument, the movant need only show that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. At the very least, Defendants have met the lightened burden that was created by Plaintiff's failure to respond. In any event, the Court would reach the same conclusion even if it were to subject the Defendants' argument to the more rigorous scrutiny appropriate for a contested argument. The receipt of undesirable work assignments must be accompanied by a materially adverse change in employment, such as demotion or loss of wages, in order to be actionable. See Henry v. NYC Health & Hosp. Corp., No. 13–CV– 6909, 2014 WL 957074, at *5 (S.D.N.Y. Mar. 10, 2014). Here, Plaintiff complains that “he and other Black employees have been given less desirable assignments” such as those requiring work outdoors in the hazardous weather. (See Dkt. No. 42 at ¶ 28 [Pl.'s Third Am. Compl.].) At his deposition, however, Plaintiff conceded that it was part of his job to go out in the cold and shovel snow. (See Dkt. No. 108 at 116 [Pl.'s Dep.].) There is no evidence that such job assignments were accompanied by a loss in job title or pay. Accordingly, the alleged discriminatory job assignments cannot form the basis of a discrimination or retaliation claim since they were not materially adverse. Therefore, Defendants' motion for summary judgment on any claim of discriminatory or retaliatory reassignment of job duties is granted. I. Whether Plaintiff's Claims Based on Discriminatory Denial of Promotion Must Be Dismissed *24 After carefully considering the matter, the Court answers this question in the affirmative, in part for the reasons stated by Defendants in their memorandum of law in chief as well as their reply memorandum of law. (Dkt No. 100–8 at 57–67 [Defs.' Mem. of Law]; Dkt. No. 124 at 6–9 [Defs.' Reply Mem. of Law].) To those reasons, the Court adds the following analysis. In support of his discriminatory failure to promote claim, Plaintiff alleges that he asked Defendants Nolan and Wright for promotions and that, when asked why he did not promote black employees, Nolan responded, “A black man will never make anything on my watch.” (See Dkt. No. 42 at ¶¶ 26–27 [Pl.'s Third Am. Compl.].) The following facts are undisputed. The opportunities for a pay grade promotion just above Plaintiff's job title, Laborer I, include Laborer II, Motor Equipment Operator (“MEO”) I and MEO II, all of which are within Plaintiff's bargaining unit. Each of these positions require a Commercial Driver's License (“CDL”), which Plaintiff never sought. Plaintiff also never applied for any of these pay grade promotions. The title of “Crew Leader” is a position within the Street Cleaning Bureau, which falls under a separate CBA between the AFSCME 1773 and the City. (See Dkt. No. 96–7 [Ex. G to Thompson Decl.].) Under that CBA, all Crew Leader vacancies must be advertised and filled by qualified Local 1773 members before being offered to members of other bargaining units, such as Local 400. Although the City has no record of Plaintiff ever having applied for a Crew Leader position, Plaintiff asserts that between 2006 and 2010, whenever a bid was posted for a Crew Leader position, he submitted an application, but was never promoted to Crew Leader. However, at his deposition, when asked what positions he put in a bid for between 2006 and 2010, Plaintiff replied that he “put in a bid for a crew leader” and later that he bid for “a couple of” and “more than one bid” for Crew Leader. (Dkt. No. 108 at 96, 99.) 11 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 235 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 Plaintiff went on to explain that there was one Crew Leader position in Sanitation, and another in Street Cleaning. Plaintiff said that Sanitation position went to Efren Maldonado, who had previously worked in Street Cleaning and Sanitation, and the other position went to Thomas Rubado, who came from the Aviation Department. Finally, when asked what reason he has to believe he did not get those jobs because of his race, Plaintiff testified that he believes he didn't get those positions because “they didn't like me.” (Id. at 105.) According to Jeffrey Wright, who was Commissioner through the end of 2009, the only Crew Leader positions that he appointed in the Street Cleaning Bureau during his tenure were filled by existing Local 1773 members, Thomas Rubado and Richard Shepherd. Since both were qualified, the position would not have been opened to other bargaining units. The only non Local 1773 member who filled a Crew Leader position during Wright's tenure was Efran Maldonado, a minority who was an MEO at the time of his promotion. Also, that position opened in the Department of Sanitation in 2006 and had entirely different job responsibilities than that of the Street Cleaning Bureau. (See Dkt. No. 97 at ¶¶ 48–49 [Decl. of Jeffrey Wright, June 13, 2013].) *25 Nolan, Superintendent, asserts that he was not involved in formal hiring decisions, which are made by the Commissioner. (See Dkt. No. 98 at ¶ 13 [Decl. of Andrew Nolan, June 13, 2013].) Plaintiff disputes this, citing Nolan's promotion of Ray Garcia to the vacant position of “acting crew leader” in 2007. It was at that time that, Plaintiff asserts, Nolan made the comment that “no black man was ever going to make anything on my watch.” (Dkt. No. 106 at ¶¶ 44–46 [Pl.'s Aff.].) Jeffrey Wright, who was Commissioner through 2009, affirms that, in the day-to-day operation of the Street Cleaning Bureau, it becomes necessary to name an acting Crew Leader if the actual Crew Leader is out sick or on vacation. These positions are temporary and are made by the Superintendent, not the Commissioner. (See Dkt. No. 97 at ¶ 51 [Jeffrey Wright Decl.].) Wright further affirmed that “at some point in 2007,” Plaintiff came to Wright and told him that he should be considered for promotion to Crew Leader; not for a specific opening, but more generally in the future. Then Commissioner Wright explained to Plaintiff that he needed to make himself more competitive, “including obtaining his CDL and applying for some of the intermediate positions such as Laborer II and MEO.” (Id., at ¶ 50.) Wright explained that, “[i]n other words, since a Crew Leader must supervise laborers and heavy equipment and motor vehicle operators and be familiar with the operation of all of the equipment in the Bureau, it helps to have experience actually performing those jobs and operating that equipment.” (Id.) At his deposition, Plaintiff explains that he was told by Bobby Reed, a supervisor, that “next week you are going to be the acting crew leader” but then when that week arrived, Ray Garcia was the acting crew leader. (Dkt. No. 108 at 106–107 [Pl.s' Dep.].) Plaintiff agreed “that an acting crew leader is someone who is working out of title for a short period of time while somebody is either on medical leave or vacation.” (Id. at 107:9–14.) Plaintiff also explained that during this short period of time, the acting crew leader is paid at the Crew Leader rate. Plaintiff testified that he felt that Nolan gave Ray Garcia the acting crew leader position because of racial animosity toward Plaintiff due to Nolan's comment that a black man wasn't going to make anything on his watch. (Id. at 108.) Plaintiff clarified that Nolan made this comment after he made Ray Garcia acting crew leader. (Id.) In his opposition to Defendants' motion, Plaintiff cites one factual question that he argues warrants a denial of summary judgment. Specifically, Plaintiff argues that there is a question of fact regarding whether Nolan made the statement that no black man will ever make anything on his watch. Moreover, Plaintiff contends that even where Nolan was not the decision maker, under a Cat's Paw theory of liability, his racial animus may be imputed to the decision maker. *26 As indicated in Point II.C. 1.b. of this Decision and Order, Plaintiff bears the burden at trial to show that (1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. See Bir v. Pfizer, Inc., 510 F. App'x 29, 30 (2d Cir.2013). In order to establish a prima facie case of discrimination based on failure to promote, Plaintiff must show that “(1) [he] is a member of a protected class; (2) [he] applied and was qualified for a job for which the employer was seeking applicants; (3)[he] was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications.” Plaintiff cannot establish a prima facie case of discriminatory failure to promote for several reasons. First, there is evidence that Plaintiff was not qualified to be a Crew Leader, given Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 236 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 19 his lack of experience and failure to obtain a CDL, which Plaintiff does not dispute. Next, as it relates to Plaintiff's claim that Defendants failed to promote him, instead promoting Mr. Rubado and Mr. Maldonado, to vacant Crew Leader positions, there is absolutely no evidence of racial animus underlying the decision to promote Mr. Rubado and Mr. Maldonado. In fact, Plaintiff testified that he was not promoted to either of these positions because “they didn't like me” but then later also testified that Mr. Rubado and Mr. Maldonado were in a position to get those jobs. (Dkt. No. 108 at 105, 106.) Moreover, even if Plaintiff could establish a prima facie case of discrimination on this basis, Defendants have identified legitimate, non-discriminatory reasons, which Plaintiff does not dispute, for promoting Mr. Rubado and Mr. Maldonado rather than Plaintiff: those gentlemen were qualified for the position and were members of Local 1773, which, pursuant to the CBA, required that the City promote them before opening the position up to members of other bargaining units, such as Local 400. Given the lack of evidence regarding racial animus attached to those promotions, Defendants are entitled to summary judgment in that regard. Regarding Nolan's assignment of Ray Garcia to a temporary, acting crew leader position instead of Plaintiff, the Court notes that it is questionable whether such an assignment may be considered a promotion. See Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir.2004) (concluding that an assignment to substitute for an absent supervisor generally cannot fairly be labeled a promotion). Nonetheless, Plaintiff does not identify any evidence suggesting that he was qualified for the acting crew leader position, while Mr. Garcia, who was an MEO II, three positions ahead of Plaintiff, was clearly qualified. Because Plaintiff cannot show that the acting crew leader position was given to someone less qualified than him, he cannot establish a prima facie case of discrimination based on failure to promote. *27 For these reasons, Defendants' motion for summary judgment on Plaintiff's claims based on failure to promote is granted. J. Whether Plaintiff's Claims Based on Discriminatory Discipline Must Be Dismissed After carefully considering the matter, the Court answers this question in the affirmative, in part for the reasons stated by Defendants in their memorandum of law in chief as well as their reply memorandum of law. (Dkt No. 100–8 at 48– 577 [Defs.' Mem. of Law]; Dkt. No. 124 at 9–12 [Defs.' Reply Mem. of Law].) To those reasons, the Court adds the following point. Plaintiff has not identified any evidence of discriminatory or retaliatory animus based on his race as it relates to discipline. The sole question of fact Plaintiff identifies, which is whether Nolan stated in 2007 that no black man would get promoted on his watch, is irrelevant to the disciplinary actions taken against Plaintiff. It is undisputed that the only Defendant who was the decision maker regarding the disciplinary actions against Plaintiff was Commissioner Wright. 12 Moreover, other than a bald and unsupported assertion by Plaintiff in his response to Defendants' Local Rule 7.1 statement, there is no evidence that Nolan had anything to do with the Commissioner's decision to discipline Plaintiff. Finally, there is absolutely no evidence of racial animus or bias on behalf of Commissioner Wright against Plaintiff. Moreover, for the reasons stated in Defendants' memoranda, Plaintiff has failed to adduce any evidence that similarly situated white employees were treated more favorably than Plaintiff in terms of discipline. (See Dkt. No. 100–8 at 51–55 [Defs.' Mem. of Law].) For these reasons, Defendants' motion for summary judgment on Plaintiff's claims regarding discriminatory and/ or retaliatory discipline is granted. K. Whether Plaintiff's Claims Based on Discriminatory Termination Must Be Dismissed After carefully considering the matter, the Court answers this question in the affirmative, in part for the reasons stated by Defendants in their memorandum of law in chief as well as their reply memorandum of law. (Dkt No. 100–8 at 14–25 [Defs.' Mem. of Law]; Dkt. No. 124 at 2–6 [Defs.' Reply Mem. of Law].) To those reasons, the Court adds the following analysis. Plaintiff has not identified any evidence of discriminatory or retaliatory animus based on his race as it relates to his termination. The sole question of fact Plaintiff identifies, which is whether Nolan stated in 2007 that no black man would get promoted on his watch, is irrelevant to Plaintiff's termination. The evidence reflects that Defendant O'Connor, who was Commissioner at the time, made the decision to terminate Plaintiff. Even assuming that Defendants Thompson and Simone advised or encouraged O'Connor to terminate Plaintiff, there is no evidence of racial animus or Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 237 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 20 bias on behalf of O'Connor, Thompson 13 or Simone against Plaintiff. The only person that Plaintiff has identified as having racial animus is Nolan. Nolan affirms that he did not initiate the discipline leading up to Plaintiff's termination, did not participate in the pre-disciplinary hearing and played no role in the decision to terminate Plaintiff. Nolan further affirms that O'Connor did not ask for his input regarding the termination. (See Dkt. No. 98 at ¶ 49 [Nolan Decl.].) O'Connor affirms that he was the sole decision maker in the determination to terminate Plaintiff. (See Dkt. No. 99 at ¶ 36 [Decl. of John M. O'Connor, III, June 13, 2013].). In making the decision to terminate Plaintiff, O'Connor states that he relied upon *28 (a) the Police Report and the statements Guynell Wright made to the police that he knew he was violating DPW policy; (b) the fact that Guynell Wright was in the last stage of disciplinary progression; (c) the fact that Guynell Wright had been previously received significant discipline in 2007 for near identical conduct; and (d) a review of Guynell Wright's prior “thick” disciplinary file which reflected numerous prior major and minor violations and demonstrated a pattern of misconduct over time. (Id. at ¶ 37.) In his response to Defendants' Local Rule 7.1 Statement of Material Facts, Plaintiff denies the assertion that Nolan did not initiate the discipline leading up to Plaintiff's termination, did not participate in the pre-disciplinary hearing and played no role in the decision to terminate Plaintiff. (See Dkt. No. 105 at ¶ 47 [Pl.'s Rule 7.1 Response Statement].) In support of his purported denial, Plaintiff cites his affirmation that he personally observed O'Connor go to Nolan and Culkin for advice on how to perform his duties as Commissioner. (See Dkt. No. 106 at ¶ 42 [Pl.'s Aff.].) Plaintiff has failed to identify any evidence of Nolan's participation in his termination, either directly or by communication or encouragement of a decision maker. For these reasons, Defendants' motion for summary judgment as it relates to Plaintiff's claims for discriminatory and/or retaliatory termination is granted. Finally, the Court notes that Plaintiff has identified no evidence of a causal connection between his DHR complaints and the alleged adverse actions. There is no direct evidence of retaliatory motive on behalf of any decision maker. Moreover, there is no temporal proximity between Plaintiff's complaints and the adverse actions. For example, Plaintiff complained to DHR in March 2008, but the next adverse action did not occur until January 2009. Also, Plaintiff was terminated an entire year after his February 2009 DHR complaint. For these reasons, in addition to those asserted by Defendants in their memoranda of law, Plaintiffs' retaliation claims are dismissed. Because the Court dismisses Plaintiff's claims for the absence of a question of material fact as to the substantive elements of those claims, the Court need not address the remainder of Defendants' arguments for dismissal, such as failure to exhaust and failure to file a notice of claim. ACCORDINGLY, it is ORDERED that the Defendants' motion for summary judgment (Dkt. No. 95) is GRANTED; and it is further ORDERED that Plaintiff's claims are dismissed with prejudice. The clerk is directed to enter judgment in favor of the defendants and close this case. All Citations Not Reported in F.Supp.3d, 2014 WL 1293527 Footnotes Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 238 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 21 1 Conclusions of law in a Local Rule 7.1 Statement, even where unopposed, are not deemed admitted. See Johnson v. Enu, No. 08–CV–158, 2011 WL 3439179, at *1 (N.D.N.Y. July 13, 2011) (Homer, M .J.), adopted in its entirety by, 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011) (Scullin, J.). 2 Plaintiff asserts that he began working for the City on October 3, 1988 as a “Laborer I” for the Department's Sanitation Bureau. (See Dkt. No. 108, at 44–45 [Dep. of Guynell Wright, Jan. 18, 2013].) However, events which occurred prior to June of 2006 are irrelevant to the resolution of the pending motion since the longest statute of limitations applicable to any of the claims in this action is four years. See James v. Countrywide Fin. Corp., 849 F.Supp.2d 296, 317–318 (E.D.N.Y.2012) (finding that four-year statute of limitations set forth in 28 U.S.C. § 1658(a) applies to employment discrimination and retaliation claims brought pursuant to 42 U.S.C. § 1981); Asanjarani v. City of New York, No. 09–CV–7493, 2011 WL 4343687, at * 10 (Aug. 18, 2011) (statute of limitations for employment discrimination claims brought pursuant to Section 1983 is three years); Ruggerio v. Dynamic Elec. Sys. Inc., No. 12–CV–100, 2012 WL 3043102, at *6 (E.D.N.Y. Jul. 25, 2012) (citing 42 U.S.C. § 2000e–5(e)(f)) (claims are timely under Title VII if an administrative complaint is filed within 300 days of the alleged discriminatory act, and a judicial action is filed within 90 days of receipt of a rightto-sue letter by the administrative body); Sloth v. Constellation Brands, Inc., 883 F.Supp.2d 359, 373 (W.D.N.Y.2012) (citing N.Y.C.P.L.R. § 214(2) (McKinneys 2008)) (under Section 296, the limitations period runs for three years from the date on which an action asserting NYHRL violations is filed, but this limitations period is tolled for the period between the filing of an administrative charge and the issuance of a right-to- sue letter). 3 Plaintiff filed a complaint with the New York State Division of Human Rights (“DHR”) on March 3, 2008, in which he argued that his 20–day suspension by the City for fighting was disparate treatment based on race. On August 18, 2008, DHR dismissed the complaint based on a lack of probable cause. (See Dkt. Nos. 96– 29 and 96–30 [Exs. CC and DD to Thompson Decl.].) 4 Plaintiff ostensibly filed a complaint with DHR on February 18, 2009, charging the City with race discrimination due to his termination. The DHR later dismissed the complaint citing a lack of evidence of unlawful discrimination. (See Dkt. No. 96–31 [Ex. EE to Thompson Decl.].) 5 Plaintiff's complaints were cross-filed with the United States Equal Employment Opportunity Commission (“EEOC”). 6 As the Supreme Court has famously explained, “[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–86, 106 S.Ct. 1348 (1986) (citations omitted). 7 Plaintiff's counsel argues that here, this Court must apply the “universal” rule in the courts of the State of New York that allows a non-moving party to successfully oppose summary judgment with evidence that would be inadmissable at trial because some of Plaintiff's claims arise under New York law. (See Dkt. No. 104 at 1–2 [Pl.'s Mem. of Law].) Without commenting on the veracity of Plaintiff's counsel's interpretation of New York law in this regard, the Court notes that it is by now very well-settled law that “[t]he issue of what burden a movant for summary judgment bears when the ultimate burden of proof lies with the non-movant is procedural rather than substantive, under the distinction created by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938) and its progeny, and accordingly is subject to federal rather than state law .” Tingling v. Great Atl. & Pac. Tea Co., 02–CV–4196, 2003 WL 22973452, *2 (S.D.N.Y. Dec. 17, 2003), citing Erie R. Co. v. Tompkins. 304 U.S. 64, 58 S.Ct. 817 (1938) and Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986) (applying federal law on defendant's burden at summary judgment stage to diversity action). 8 “The primary doctrinal differences between Title VII claims and employment discrimination claims pursuant to Sections 1981 and 1983 regard (1) the statute of limitations, (2) the requirement that Section 1981 or 1983 Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 239 of 240
Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 22 plaintiffs must show employment discrimination pursuant to an official policy or custom, (3) that individuals may be held liable under Sections 1981 and 1983, but not under Title VII, and (4) a Title VII claim may be established through proof of negligence, whereas Section 1981 and 1983 claims must be supported by evidence of intentional discrimination.” Jackson v. City of New York, No. 11–CV–3028, 2014 WL 1010785, at *4, n. 10 (E.D.N.Y. Mar. 17, 2014) (citing Patterson, 375 F.3d at 225–227). 9 Although, as Defendants point out, this decision is a Report and Recommendation that was later vacated, the case was thereafter reassigned to another District Judge who adopted the Report and recommendation in full. See See Brown v. JP Morgan Chase Bank, No. 12–CV544, 2013 U.S. Dist. LEXIS 109700 (E.D.N.Y. Aug. 5, 2013). 10 Regarding these incidents of discipline, the Court notes Plaintiff's affirmation that in 1997, another black employee slapped his bottom in the restroom, which resulted in two separate physical altercations between Plaintiff and this other employee: one in the restroom and another later in the day when Plaintiff was on his way home from work. Plaintiff asserts that both he and the other employee were disciplined as a result. (See Dkt. No. 106 at 2, ¶ 8 [Pl.'s Aff.].) Plaintiff further asserts that in February 2007, Stanley Gardynski, a white employee, made humping motions with his groin at Plaintiff's head. Plaintiff admits that afterward, when Gardynski was provoking him again, Plaintiff hit him. Both Plaintiff and Gardynski were disciplined as a result. (Id. at 3, ¶ 13.) 11 Plaintiff also put in a bid for a gardener position in the Parks and Recreation Department. 12 In his response to Defendants' Local Rule 7.1 Statement of Material Facts, Plaintiff denies that Nolan was not the decision maker regarding the discipline he received between 2006 and 2009. (See Dkt. No. 105 at ¶ 68 [Pl.'s Rule 7.1 Response Statement] .) In support of this purported denial, Plaintiff asserts that Commissioner Wright relied on Defendants Nolan and Culkin to make the final determination regarding discipline. However, Plaintiff cites a portion of his deposition testimony that does not support this assertion. Accordingly, this fact is deemed admitted. 13 At his deposition, Plaintiff testified that he did not believe that O'Connor or Thompson decided to terminate him because he is black. (See Dkt. No. 108 at 222 [Pl.'s Dep.].) Plaintiff testified that he thought Thompson retaliated against him for making complaints of discrimination because Thompson “never helped me out” when Plaintiff would go to him with problems. (Id. at 222–223.) Finally, at his deposition, Plaintiff testified that the only involvement Simone had was being present at meetings and that “[h]e didn't do anything, really.” (Id. at 247.) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 240 of 240
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