Bologna et al v. County of Rensselaer et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
NINA BOLOGNA,
Plaintiff,
v. 	1:26-cv-00402
(ECC/CBF)
COUNTY OF RENSSELAER, et al.,
Defendants.
_______________________________________________
APPEARANCES:
NINA BOLOGNA
Plaintiff, pro se
2410 3rd Avenue
Watervliet, NY 12189
CARLA B. FREEDMAN, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
The Clerk has sent to the Court for review a complaint, Dkt. No. 1, along with an
amended complaint, Dkt. No. 6, submitted by pro se plaintiff Nina Bologna (“Plaintiff’).
Plaintiff has not paid the filing fee for this action and seeks leave to proceed in forma pauperis
(“IFP”). Dkt. No. 2.
II. 	IFP APPLICATION
Upon review, Plaintiff’s IFP application demonstrates economic need. See Dkt. No. 2.
Therefore, she is granted permission to proceed IFP.1
1 Although her IFP application has been granted, Plaintiff will still be required to pay fees that
she may incur in this action, including copying and/or witness of fees.
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III. 	BACKGROUND
Plaintiff filed her original complaint on March 16, 2026. Dkt. Nos. 1, 2.2 On April 9,
2026, she filed an amended complaint. Dkt. No. 6. The following is drawn from the amended
complaint, the operative pleading.3
Plaintiff purports to bring this action “individually, and as parent and natural guardian of
J.B. D.B. H.B. who are minors.” Id. at 1. Plaintiff’s amended complaint lists three defendants:
County of Rensselaer (the “County”); Rensselaer County Child Protective Services (“CPS”); and
September Bembry (“Bembry”), “a CPS caseworker employed by the County.” Id.
Plaintiff alleges that on or about September 8, 2025, Defendant Bembry appeared at her
residence in Watervliet, New York and “demanded entry without a warrant or court order.” Id.
at 2. “No emergency circumstances existed.” Id. “Plaintiff refused entry and requested legal
documentation, which was not provided.” Id. “Defendants used threats and coercion, including
threat to remove Plaintiff’s children.” Id.
Between September and October 2025, “Defendants made repeated unannounced visits”
and “continued to demand entry without legal authority[.]” Id. “Defendants threatened with
removal of the children[.]” Id. “No court order was ever issued.” Id. “On numerous occasions,
Plaintiff contacted Rensselaer County CPS, including Defendant September Bembry, to: clarify
2 Citations to Plaintiff’s submissions will refer to the pagination generated by CM/ECF, the
Court’s electronic filing system. Unless otherwise indicated, excerpts from the record are
reproduced exactly as they appear in the original and errors in spelling, punctuation, and
grammar have not been corrected.
3 Swinea v. Peters, No. 1:24-CV-01517 (MAD/PJE), 2025 WL 1470840, at *2 (N.D.N.Y. May
22, 2025) (explaining an amended complaint supersedes and replaces the original complaint in
its entirety rendering it “of no legal effect”) (quoting Int’l Controls Corp. v. Vesco, 556 F.2d
665, 668 (2d Cir. 1977), cert. denied sub nom., Vesco & Co., Inc. v. Int’l Controls Corp., 434
U.S. 1014 (1978)), report and recommendation adopted, 2025 WL 1819710 (N.D.N.Y. July 2,
2025).
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allegations protect her children ensure proper handling of the investigation[.]” Id. “Despite
Plaintiff’s cooperation and outreach, Defendants continued engaging in coercive and improper
conduct ongoing harassment and conduct[.]” Id. On or about October 3, 2025, “Defendant
claimed a ‘safety plan’ existed” but a “supervisor confirmed there were no safety concerns and
no active plan[.]” Id.
Plaintiff claims “Defendants investigated multiple (at least four) allegations of sexual
abuse against Plaintiff.” Id. at 3. “Each of these allegations was ultimately determined to be
unsubstantiated.” Id. “Despite the severity of the allegations, Defendants failed to take
appropriate investigative steps while continuing to subject Plaintiff to intrusive and harmful
actions.” Id.
Plaintiff alleges “Defendant: Encouraged violation of Family Court order Ignored
concerns regarding a child’s medication Made false statements about Plaintiff’s mental health
Caused repeated CPS visits without justification Parked outside Plaintiff’s home to intimidate[.]”
Id. Defendants contacted Plaintiff’s children’s school and her long-term treating psychiatrist
“after Plaintiff revoked all authorization.” Id. “As a result, Plaintiff’s psychiatrist terminated
care due to feeling bullied by September.” Id.
Plaintiff states that “During a prior CPS investigation: Allegations were unsubstantiated
Police raided Plaintiff’s home Plaintiff were separated from her children CPS refused medical
examination despite serious allegations[.]” Id. at 4. Plaintiff claims “This demonstrates a pattern
of improper and harmful conduct.” Id.
The amended complaint lists three causes of action: (1) Negligence/Misconduct; (2)
Emotional Distress; and (3) Abuse of Authority. Id. at 4-5. Specifically, Plaintiff alleges
“Defendants acted negligently and outside lawful authority” Id. at 4. She claims, “Defendants
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engaged in extreme and outrageous conduct causing severe emotional distress to Plaintiff and her
children.” Id. at 5. She also claims, “Defendants misused CPS authority to harass, intimidate,
and coerce Plaintiff.” Id.
“As a result of Defendants’ repeated conduct and CPS involvement,” Plaintiff’s children
“have been negatively impacted.” Id. at 4. “They are struggling due to the instability and fear
caused by ongoing CPS inference[.]” Id. “Plaintiffs suffered: Emotional distress Anxiety and
fear Loss of medical care Interference with family life Fear of removal Fear of attending school
Emotional trauma Behavioral issues Psychological distress. Id. at 5. As relief, Plaintiff requests
monetary damages, costs, disbursements, and “other relief.” Id.
IV. 	LEGAL STANDARD
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis
complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d
Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in
original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v.
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Twombly, 550 U.S. 544 (2007); see also Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’
when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an
indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil
Procedure. See Cole v. Smrtic, No. 1:24-CV-00847 (MAD/CFH), 2024 WL 4870495, at *2
(N.D.N.Y. Nov. 21, 2024) (explaining, “special solicitude for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure . . . .”)
(internal quotations and citation omitted), report and recommendation adopted, 2025 WL
247901 (N.D.N.Y. Jan. 21, 2025). “Although ‘no technical form is required,’ the Federal Rules
make clear that each allegation contained in the pleading ‘must be simple, concise, and direct.’”
Id. (quoting Fed. R. Civ. P. 8(d)). “A party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P.
10(b). This rule serves “to provide an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999)
(internal quotations and citations omitted).
To survive dismissal for failure to state a claim, a complaint 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).
This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at
570. “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).
In determining whether a complaint states a claim upon which relief may be granted, “the
court must accept the material facts alleged in the complaint as true and construe all reasonable
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inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citations omitted). However, “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.
Generally, a court should not dismiss a pro se complaint “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.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)
(citation and internal quotation marks omitted). However, 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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
V. 	ANALYSIS
A. 	Subject Matter Jurisdiction
Federal courts exercise limited jurisdiction pursuant to Article III of the Constitution. A
court may exert subject matter jurisdiction over “all civil actions arising under the Constitution,
laws, or treaties of the United States” and civil actions where there is diversity of citizenship
between the parties and the amount in controversy exceeds the sum of $75,000. 28 U.S.C. §§
1331, 1332. A plaintiff must allege facts establishing that subject matter jurisdiction exists.
Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003). In the absence of a basis for
exercising jurisdiction, the case must be dismissed. Fed. R. Civ. P. 12(h)(3); United States v.
Cotton, 535 U.S. 625, 630 (2002). “[F]ailure of subject matter jurisdiction is not waivable and
may be raised at any time by a party or by the court sua sponte.” Lyndonville Sav. Bank & Trust
Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000).
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Plaintiff’s amended complaint fails to address the grounds for the Court’s subject matter
jurisdiction. Diversity jurisdiction is unavailable to Plaintiff because all parties are citizens of
New York and the amount in controversy does not exceed the statutory requirement. See 28
U.S.C. § 1332(a)(1); see Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) (“28 U.S.C. §
1332 requires complete diversity between all plaintiffs and all defendants . . . .”). With respect to
federal question jurisdiction, even when liberally construed, the amended complaint fails to state
what, if any, federal statute or provision of the Constitution this action arises under. See
generally Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (the plaintiff bears the
burden of establishing subject matter jurisdiction). Plaintiff’s alleged causes of action are based
on state law. Dkt. No. 6 at 4-5.
In sum, because Plaintiff has failed to establish this Court’s subject matter jurisdiction
through either federal question or diversity, the undersigned recommends dismissal of the
amended complaint in its entirety.4 And because the Court lacks subject matter jurisdiction, the
undersigned recommends dismissing the action without prejudice. See Hollander v. Garrett, 710
F. App’x 35, 36 (2d Cir. 2018) (summary order); see also Humphrey v. Syracuse Police Dep’t,
758 F. App’x 205, 206-07 (2d Cir. 2019) (summary order) (explaining, where a court dismisses a
complaint for lack of subject matter jurisdiction, the court does “not have the power to reach the
merits and dismiss the claims against the defendants for failure to state a claim, or to eventually
4 “Although, generally, this Court has the discretion to exercise its supplemental jurisdiction to
review state law claims in some cases, Block v. First Blood Assocs., 988 F.2d 344, 351 (2d Cir.
1993), where there is no meritorious federal claim before the Court, the district court should
decline to exercise its supplemental jurisdiction to review any related state law claims.” Lawler
v. ViaPort New York, LLC, No. 1:19-CV-548 (GLS/CFH), 2019 WL 2717900, at *3 (N.D.N.Y.
June 28, 2019) (recommending, upon § 1915 review, that the Court decline to exercise
supplemental jurisdiction over the plaintiff’s state law claim where the plaintiff failed to “set
forth a valid federal law claim”), report and recommendation adopted, 2019 WL 6134180
(N.D.N.Y. Nov. 19, 2019).
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dismiss the complaint with prejudice for failure to file a proposed amended complaint.”) (citing
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)); accord McKie v.
Kornegay, No. 21-1943, 2022 WL 4241355, at *2 (2d Cir. Sept. 15, 2022) (summary order).
B. 	Other Deficiencies
Plaintiff, proceeding pro se, purports to bring this action on behalf of her minor children.
Dkt. No. 6 at 1. “While a litigant in federal court has the right to act as her own counsel, ‘[a]
person who has not been admitted to the practice of law may not represent anybody other than
[her]self.’” Gammons v. Cody, No. 1:25-CV-941 (AJB/DJS), 2025 WL 2722411, at *3
(N.D.N.Y. Sept. 2, 2025) (alterations in original) (quoting Guest v. Hansen, 603 F.3d 15, 20 (2d
Cir. 2010) (citation omitted)), report and recommendation adopted, 2025 WL 2719776
(N.D.N.Y. Sept. 24, 2025); accord Johnson v. City of New York, No. 22-2096, 2023 WL
3607219, at *2 (2d Cir. May 24, 2023). “This rule extends to parents: ‘a parent not admitted to
the bar cannot bring an action pro se in federal court on behalf of his or her child.’” Gammons,
2025 WL 2722411, at *3 (quoting Tindall v. Pultney High School Dist., 414 F.3d 281, 284-85
(2d Cir. 2005)); see Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 133 (2d Cir. 2009) (“[A]
layperson may not represent . . . a minor child.”) (citing Cheung v. Youth Orchestra Found. of
Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)); see also Iannaccone v. Law, 142 F.3d 553, 558 (2d
Cir. 1998) (“[B]ecause pro se means to appear for one’s self, . . . a lay person may not represent
a corporation or a partnership or appear on behalf of his or her own child.”). Thus, Plaintiff may
not bring claims on behalf of her minor children.
Plaintiff names Rensselaer County Child Protective Services as a defendant. Dkt. No. 6
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
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be sued.” Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002); Mulvihill
v. New York, 956 F. Supp. 2d 425, 427 (W.D.N.Y. 2013) (explaining, agencies of a municipality,
(i.e., departments of social services or child protective services), are not suable entities under
New York law); see, e.g., Rogers v. CPS, No. 5:20-CV-75 (LEK/ATB), 2020 WL 2059824, at *3
(N.D.N.Y. Apr. 29, 2020) (“Plaintiff cannot sue [Child Protective Services] because it is an
administrative arm of [the] County.”). Thus, Rensselaer County Child Protective Services is not
a proper defendant.
C. 	Leave to Amend
In deference to Plaintiff’s pro se status, the undersigned recommends granting Plaintiff
leave to amend. See Gomez, 171 F.3d at 795. The Court advises Plaintiff any amended pleading
she submits to this Court must comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. The pleading must be labeled “Second Amended Complaint” and must bear the same
docket number as this action, 1:26-cv-00402 (ECC/CBF). Any such amended pleading should
specifically identify the legal theory or theories that form the basis for her claim. Plaintiff is
cautioned that no portion of her prior complaints shall be incorporated into any amended
pleading by reference. The amended pleading must set forth all of the claims she intends to
assert against the Defendant(s) and must demonstrate that a case or controversy exists between
the Plaintiff and the Defendant(s) which Plaintiff has a legal right to pursue and over which this
Court has jurisdiction. See discussion supra Section V.B. Of course, Plaintiff may also pursue
her claims in state court if appropriate.
VI. 	CONCLUSION
WHEREFORE, it is hereby
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ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 2) is
GRANTED, and it is
RECOMMENDED that Plaintiff’s first amended complaint (Dkt. No. 6) be
DISMISSED without prejudice and with leave to amend; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation
and Order, along with copies of the unpublished decisions cited herein in accordance with the
Second Circuit 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 (14) days within which to
file written objections to the foregoing report.5 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. 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)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: April 30, 2026
Syracuse, New York
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).
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4870495
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, et al. Defendants.
No. 1:24-CV-00847 (MAD/CFH)
|
Signed November 21, 2024
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”)
commenced this action (No. 1:24-CV-00623) on May 6,
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court
construes to be a supplement to the complaint. 1 See Dkt. No.
7. In lieu of paying this Court's filing fees, 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 Thus, the Court proceeds to its review of the
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also
submitted for the Court's review a Pro Se Application for
Permission to File Electronically and a Motion to Appoint
Counsel. See Dkt. Nos. 4, 5.
1 The submission includes a letter addressed to
District Judge D'Agostino, titled, “Requirements
for Cases Removed From State Court,” Dkt. No.
7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with
the caption of Cole v. County of Montgomery,
dated December 7, 2022. See Dkt. No. 7. The
undersigned has reviewed this submission in
connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
Cir. 2004).
2 Plaintiff is advised that, although he has been
granted IFP status, he is still required to pay all fees
and costs he may incur in this action, including,
but not limited to, copying fees, transcript fees, and
witness fees.
II. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code 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 with his action.
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); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
the Second Circuit stated,
There 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[.]”
*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
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“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 [(‘Fed.
R. Civ. P.’)].” 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)).
Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; 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.” Id. at 8(d). “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,
54 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[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 54
(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 a defendant's 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).
*3 This Court 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). “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) 3
(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.”).
3 Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
plaintiff.
B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
Against Rights & Title U.S.C. 18 Section 242 Deprivation
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
cover sheet further provides that his cause of action involves,
“Violation of Due process, Speedy Trial Rights, Ineffective
Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
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See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local
officials,” plaintiff responds, “Due Process, 30.30 Speedy
Trial Violation, Ineffective Assistance of counsel.” 4 Id. In
response to a question asking him to explain “how each
defendant acted under color of state or local law,” plaintiff
states “Each judge deliberately denied me due process, and
refused to look into the paperwork to see that i was improperly
denied my speedy trial rights. It was a tean [sic] effort.
The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned
actions were done and upheld even after I showed federal law
with supportive case law as a pro se litigant.” Id.
4 Although plaintiff generally references ineffective
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would
not be considered ineffective assistance of counsel
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney.
Plaintiff provides that his “case is still on appeakl [sic] in
Appellate Court Third Department. I feel they are guilty,
or part of what I call a scandal. I went to them from the
very start with a complaint to the grievance committee,
where they denied any wrongdoing. It must be ok to violate
Constitutional rights there. This is from March 2019 to
present” Id.
In response to a question that asks plaintiff to state the facts
underlying his claims, plaintiff states, “Please see attached
Article 78 that is attached. It was dismissed being in the wrong
court, but is on point.” Id. at 4. Plaintiff did not provide the
Court with any such attachment and has not submitted any
Article 78 materials. See Compl., Dkt. No. 7.
In response to the form complaint's question asking about
any injuries suffered as a result of the conduct he complains
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by
arguments not legally allowed to give. Loss of income,
inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial
traumam [sic] due to my legal battles.” Id. Indicating the relief
sought, plaintiff states
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel,
malice, Brady Violation, Petitioner
claims deliberate misconduct and
malice in Montgomery County Court,
the Saratoga Disrict Attorney's Office,
and the Supreme Court Appellate
Division Third department. ** This is
subject to change if an attorney agrees
to represent.
Compl. at 5. Although he typed his name, plaintiff does not
sign the complaint where a signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme
Court. See id. He states that he seeks or sought the removal
because he was told he was “not guarantee counsel” at the
state, but that “[i]n Federal Court, there is that option, pending
qualification, and I am told, if a lawyer agrees to take it, then
I really have something. I am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel × 4. That is why I am
pro se. I had to protect myself when appointed counsel did
not. It also went through a couple judges which is why they
are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
thing I saw not just with my words, but with transcripts 5 from
the County Court, and the Adult Drug Court.” Id. Plaintiff
refers to being drug free for four and a half years and having
academic success in college. Id. at 3. He states that he wishes
this Court to hear his case because he believes he will not
“see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
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Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
5 Plaintiff did not provide any transcripts.
C. Discussion 6
6 As a courtesy, the Court has provided plaintiff with
copies of any unpublished cases cited within this
Report-Recommendation & Order.
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
does not provide a short and plain statement of the claim
demonstrating why he is entitled to relief. Although he
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to
“Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
defendants of the claims against them. See FED. R. CIV. P.
8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further
lead the undersigned to recommend dismissal. First, in
referencing to “Due Process, 30.30 Speedy Trial Violation,
Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek
some kind of review of a criminal proceeding or conviction.
See Compl. at 3. Plaintiff also accuses all named judges
of denying him due process and contends that an unnamed
“ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4.
Such claims would be barred by Heck v. Humphrey.
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, 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. The court further held
that “[a] claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.” Id. at 487 (emphasis in
original).
[ ]
Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
no matter the target of the prisoner's suit ... if success in
that action would necessarily demonstrate the invalidity
of confinement or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (emphasis in original).
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24-
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s),
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.” Zografidis, 2022 WL 21756775, at *7. Although
plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal
proceedings, conviction, and/or sentence. The claims plaintiff
seeks to pursue relate to allegations that he was denied
due process, denied speedy trial rights, and experienced
ineffective assistance of counsel. Accordingly, plaintiff's
claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. 7
7 The undersigned recognizes that claims that are
determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has
recommended dismissal with prejudice because
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plaintiff has only named defendants who are
immune from relief. Accordingly, the undersigned
is recommending dismissal of the claims based on
these immunities, rather than a Heck dismissal. The
undersigned has included the Heck review for sake
of completeness.
3. Immunities
Plaintiff names as defendants several defendants who are
immune from suit. Insofar as plaintiff names Hon. Michael
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate's Court Judge” 8 such
claims would be barred by judicial immunity.
8 Although plaintiff provides no facts regarding
any family court proceedings, that he named a
family court judge and makes general reference
to that he seeks review over actions taken by
a family court judge. Even if plaintiff were to
amend his complaint to provide facts about any
possible family court proceedings and details
about any alleged violations of his rights that he
believes he faced in that Court, if plaintiff seeks
this Court's review of an order of the family
court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court's review
or intervention of a currently pending/ongoing
Family Court proceeding, such review would be
barred by Younger. See 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) (“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.”); see
also Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal
courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call
into question ongoing state proceedings.”).
*6 “With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions.” 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 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).
“Judicial immunity is immunity from suit, not just immunity
from the assessment of damages.” 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. (quoting 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.’ ” 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.” 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 when he has acted
in the clear absence of all jurisdiction.’ ” 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.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
Thus, as plaintiff names the judicial defendants in relation to
actions or omissions that they took in their roles as judges,
their actions are protected by absolute judicial immunity.
To the extent plaintiff names Hon. Felix Catena, “Retired
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Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does
not impact [his or] her immunity for acts taken in [his or]
her official capacity before her retirement.” McCray v. Lewis,
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
sue the judges their official capacities, the suit is barred by the
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
shields judges from suit to the extent that they are sued in their
official capacities.”).
*7 In addition, plaintiff also references, exclusively in his
“relief” section of the form complaint, “the Supreme Court
Appellate Division, Third Department” when stating that he
experienced “deliberate misconduct and malice.” Compl. at
7. He does not name this Court as a defendant anywhere in
the complaint. However, even if plaintiff were to have named
the Appellate Division, Third Department as a defendant,
such defendant would also need to be dismissed based on
Eleventh Amendment immunity as the Appellate Division “is
merely an agency or arm of New York State.” Benyi v. New
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.
Apr. 13, 2021) (citation omitted). Accordingly, to the extent
a liberal reading of the complaint may suggest that plaintiff
seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See
Compl.
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
Maxwell, Esq., Assistant District Attorney, in addition to the
Heck issues noted above, he would be protected by absolute
prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability
for those prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process.’ ” Barr v.
Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate.”
Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process,
“involves the exercise of discretion.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such
as “deciding whether to bring charges and presenting a case
to a grand jury or a court, along with the tasks generally
considered adjunct to those functions, such as witness
preparation, witness selection, and issuing subpoenas.”
Simon v. City of New York, 727 F.3d 167, 171 (2d
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
Court has found prosecutors absolutely immune from
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
the State's case ... [but] withheld absolute immunity for
conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining
witness.”). “[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 ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (1985)).
Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld
potentially exculpatory material” that was used against
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater
detail, absolute immunity would extent to even this alleged
misconduct as such allegations clearly fall within the scope of
prosecutorial immunity. Accordingly, it is recommended that
any claims against ADA Samuel V. Maxwell be dismissed
for absolute prosecutorial immunity. “Furthermore, because
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading,
I recommend that the dismissal be with prejudice.” Phillips
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 223 (2d Cir. 2000)). 9
9 Plaintiff appears to characterize his submissions as
a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery
County Court to this Court. See Dkt. No. 7
(citing 28 U.S.C. § 1441). However, in addition
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to the infirmities mentioned above, plaintiff has
not demonstrated that any proceeding related to
this complaint has been properly removed to, or
is subject to removal to, this Court. See, e.g.,
28 U.S.C. § 1446. Indeed, plaintiff's submissions
appear to indicate that plaintiff is the plaintiff in the
County Court action. See id. § 1446(a).
III. Conclusion
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims
against Honorable Michael W. Smrtic; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; and Felix Catena,
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be
DISMISSED WITH PREJUDICE as follows: (1) claims
brought against them in their personal/individual capacities
for judicial immunity, and (2) claims brought against them in
their official capacities for Eleventh Amendment immunity;
and it is further
RECOMMENDED, that plaintiff's section 1983 claims
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading
of the complaint may suggest that plaintiff seeks to name
the Appellate Division, Third Department, as a defendant
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH
PREJUDICE as barred by Eleventh Amendment immunity,
and it is
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically (dkt. no. 4) and motion to
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did
not contend that he made any efforts to obtain
counsel on his own, show proof of any attorneys
he contacted. See Terminate Control Corp v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), 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 (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. 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. 11
11 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. 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).
All Citations
Not Reported in Fed. Supp., 2024 WL 4870495
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2025 WL 247901
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, Interim Montgomery
County Judge; Tatiana N. Coffinger, County/Family/
Surrogate's Court Judge; Honorable Felix Catena,
Retired Administrative Law Judge; and Samuel V.
Maxwell, Esq., Assistant District Attorney, Defendants.
1:24-CV-847 (MAD/PJE)
|
Signed January 21, 2025
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Plaintiff commenced this action on May 6, 2024,
asserting that Defendants violated his due process and speedy
trial rights, and that he received ineffective assistance of
counsel in an underlying state criminal action. See Dkt. No. 1.
In a Report-Recommendation and Order dated November 21,
2024, Magistrate Judge Hummel granted Plaintiff's request
to proceed in forma pauperis and conducted an initial
review of the complaint. See Dkt. No. 8. In the Report-
Recommendation and Order, Magistrate Judge Hummel
concluded that, in addition to the complaint being subject
to dismissal for failure to comply with Rule 8 of the
Federal Rules of Civil Procedure, Plaintiff's due process,
speedy trial, and ineffective assistance of counsel claims
are barred by Heck v. Humphrey, 512 U.S. 477 (1994),
because Plaintiff's underlying state court conviction has
not been reversed on direct appeal or otherwise expunged.
See id. at 8-10. Moreover, the Report-Recommendation
and Order recommended dismissal of the claims against
Defendants Smrtic, Coffinger, and Catena since they are
barred by absolute judicial immunity. See id. at 10-12.
To the extent Plaintiff is attempting to assert a claim
against the Appellate Division, Third Department, Magistrate
Judge Hummel found that the claim is barred by Eleventh
Amendment immunity because the Appellate Division “
‘is merely an agency or arm of New York State.” Id. at
12-13 (quotation omitted). Finally, Magistrate Judge Hummel
recommended that the claims against Defendant Maxwell be
dismissed because he is protected by prosecutorial immunity.
See id. at 13-14. Plaintiff has not objected to the Report-
Recommendation and Order.
When a party files specific objections to a magistrate judge's
report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). However, when a party
files “[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge,” the court reviews those recommendations
for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322,
2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations
and footnote omitted). After the appropriate review, “the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
In the present matter, the Court finds that Magistrate Judge
Hummel correctly determined that Plaintiff's complaint must
be dismissed. Plaintiff's complaint makes clear that his claims
stem from alleged violations of his rights that occurred during
an underlying state criminal case. See Dkt. No. 1 at 3-4;
Dkt. No. 7 at 4. Since Plaintiff's criminal conviction has not
been reversed, expunged by executive order, or called into
question by a federal court's issuance of a writ of habeas
corpus, Plaintiff's claims brought pursuant to Section 1983 are
barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Strong
v. Watson, No. 1:22-cv-552, 2023 WL 8439445, *14-15
(W.D.N.Y. Sept. 26, 2023) (dismissing the plaintiff's claims
of malicious prosecution, conspiracy, speedy trial violations,
denial of due process, and denial of equal protection under
Heck because the claims “all seek to impugn the validity of
his underlying state court criminal charges”).
*2 Magistrate Judge Hummel also correctly determined
that, in the alternative, the claims against the named
Defendants are subject to dismissal based on absolute
judicial and prosecutorial immunity. The allegations against
Defendants Smrtic, Coffinger, and Catena make clear that
these individuals were acting in their judicial capacities
and that their actions were not taken in the absence of
jurisdiction. Accordingly, they are entitled to absolute judicial
immunity. See Ceparano v. Southampton Just. Ct., 404 Fed.
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Appx. 537, 539 (2d Cir. 2011). As to Defendant Maxwell,
Plaintiff has alleged that he withheld exculpatory evidence
in the underlying criminal matter. Since this conduct clearly
involves “prosecutorial activities ‘intimately associated with
the judicial phase of the criminal process,’ ” Defendant
Maxwell is entitled to absolute prosecutorial immunity. See
Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Additionally,
to the extent Plaintiff has attempted to assert claims against
the Appellate Division, Third Department, the claims must be
dismissed because the Third Department is an arm of New
York State and is entitled to Eleventh Amendment immunity.
See Benyi v. New York, No. 3:20-cv-1463, 2021 WL 1406649,
*5 (N.D.N.Y. Mar. 23, 2021) (citation omitted).
Finally, the Court agrees with Magistrate Judge Hummel that,
because it is clear that the issues with Plaintiff's complaint
are substantive and not something that can be corrected by
better pleading, Plaintiff will not be afforded an opportunity
to amend his complaint. See Phillips v. New York, No. 5:13-
cv-927, 2013 WL 5703629, *5 (N.D.N.Y. Oct. 17, 2013)
(quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's November 21,
2024, Report-Recommendation and Order (Dkt. No. 8) is
ADOPTED in its entirety for the reasons set forth herein;
and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is
DISMISSED without leave to amend; and the Court further
ORDERS that Plaintiff's motion for permission to file
electronically (Dkt. No. 4) and motion to appoint counsel
(Dkt. No. 5) are DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants’ favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 247901
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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McKie v. Kornegay, Not Reported in Fed. Rptr. (2022)
2022 WL 4241355
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 4241355
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Christopher MCKIE, Plaintiff-Appellant,
v.
Charles KORNEGAY, Irene
Kornegay, Defendants-Appellees. 1
1 The Clerk of Court is respectfully directed to
amend the caption as set forth above.
21-1943
|
September 15, 2022
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is VACATED IN PART and
AFFIRMED IN PART, and the appeal is DISMISSED IN
PART.
Attorneys and Law Firms
For Plaintiff-Appellant: Christopher McKie, pro se,
Brooklyn, New York.
For Defendants-Appellees: William V. DeCandido, William
V. DeCandido, PC, Forest Hills, New York.
Present: Debra Ann Livingston, Chief Judge, Barrington D.
Parker, Eunice C. Lee, Circuit Judges.
SUMMARY ORDER
*1 Appellant Christopher McKie, proceeding pro se, appeals
from the August 2, 2021 order of the United States District
Court for the Eastern District of New York (Matsumoto, J.),
dismissing his claims with prejudice. McKie brought claims
against the estate of Doris Dickinson, Charles Kornegay
(“Charles”) in his official capacity as administrator of the
estate and in his individual capacity, and Irene Kornegay
(“Irene”), asserting common law tort and contract claims
premised on McKie's allegation that he was entitled to estate
assets. The district court found that it lacked subject matter
jurisdiction because the parties were not diverse, that it would
also lack subject matter jurisdiction over many claims under
the probate exception to federal diversity jurisdiction, and
that the complaint in any event failed to state a claim. For
the following reasons, the judgment of the district court is
VACATED IN PART and AFFIRMED IN PART, and the
appeal is DISMISSED IN PART. We assume the parties’
familiarity with the underlying facts, the procedural history,
and the issues on appeal, which we reference here only as
necessary to explain our decision.
I. Subject Matter Jurisdiction
On appeal from a dismissal for lack of subject matter
jurisdiction, we review the district court's factual findings for
clear error and its legal conclusions de novo. Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). We “have an
independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.” Hertz
Corp. v. Friend, 559 U.S. 77, 94 (2010). Federal subject
matter jurisdiction is available when a federal question is
presented, or when the parties are diverse and the amount in
controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332.
McKie's complaint cites the statutes for both federal question
and diversity jurisdiction. 2 However, McKie's brief does not
identify any basis for federal question jurisdiction, and none
is apparent—McKie's causes of action are state law tort and
contract claims.
2 On appeal, McKie also argues that the district
court should have considered whether jurisdiction
existed under 28 U.S.C. §§ 1335 and 1343(a),
but he fails to explain how either statute is
applicable to this case. See 28 U.S.C. §§ 1343(a),
1335 (jurisdiction over certain civil rights and
interpleader actions).
Diversity jurisdiction requires that the case be between
“citizens of different States,” 28 U.S.C. § 1332(a)(1),
meaning “that there must be complete diversity, i.e., that each
plaintiff's citizenship must be different from the citizenship of
each defendant,” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d
Cir. 2009). “An individual's citizenship, within the meaning
of the diversity statute, is determined by his domicile.” Van
Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, 53 (2d Cir.
2019) (quotation marks and citations omitted). The diversity
statute specifies that “the legal representative of the estate of a
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
decedent shall be deemed to be a citizen only of the same State
as the decedent.” 28 U.S.C. § 1332(c)(2). The citizenship of
the estate itself is, likewise, established by the citizenship of
the decedent. See Moore v. N. Am. Sports, Inc., 623 F.3d 1325,
1327 n.2 (11th Cir. 2010) (citing § 1332(c)(2)).
*2 McKie does not dispute that he is domiciled in New York,
nor that Dickinson was domiciled in New York when she died.
Instead, he argues that the district court overlooked that he
also sued Irene and Charles, both South Carolina residents,
individually. However, because McKie shared citizenship
with any of the defendants, the district court lacked subject
matter jurisdiction. See Hallingby, 574 F.3d at 56.
Having properly concluded that it lacked subject matter
jurisdiction, the district court proceeded to consider the merits
and dismiss the complaint with prejudice for failure to state a
claim. That was error. 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.” Carter v. HealthPort Techs., LLC,
822 F.3d 47, 54–55 (2d Cir. 2016). Accordingly, the district
court's dismissal with prejudice of claims over which it found
it lacked subject matter jurisdiction must be vacated.
Nevertheless, since the district court has already issued a
final judgment over the remaining claims, we cure part
of the jurisdictional defect here in the interest of finality,
efficiency, and economy. See United Republic Ins. Co., in
Receivership v. Chase Manhattan Bank, 315 F.3d 168, 170
(2d Cir. 2003) (“Once a district court has proceeded to
final judgment, considerations of finality, efficiency, and
economy become overwhelming, and federal courts must
salvage jurisdiction where possible.” (quotation marks and
citations omitted)). To salvage jurisdiction, we dismiss the
nondiverse defendants (i.e., the estate and Charles in his
official capacity as administrator). See Fed. R. Civ. P. 21
(“On motion or on its own, the court may at any time, on
just terms, add or drop a party.”); Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 837 (1989) (recognizing that
“courts of appeals have the authority to dismiss a dispensable
nondiverse party” under Rule 21); E.R. Squibb & Sons, Inc. v.
Lloyd's & Cos., 241 F.3d 154, 163 (2d Cir. 2001) (“[W]here
a change in parties, necessary to the existence of jurisdiction,
is appropriate and is made (even on or after appeal), appellate
courts have acted as if the trial court had jurisdiction from the
beginning of the litigation.”).
To the extent that McKie seeks damages from Charles and
Irene for their personal tortious conduct, the estate and its
administrator are not necessary because the case can proceed
“in equity and good conscience” without them. Fed. R. Civ.
P. 19(b). The Supreme Court has cautioned that the appellate
courts’ authority to dismiss parties “should be exercised
sparingly,” and that remand may be required to resolve factual
disputes as to whether the dismissal of a nondiverse party
will prejudice other parties. Newman-Green, 490 U.S. at 837.
Here, Charles and Irene will only benefit from the finality
of a dismissal with prejudice, and McKie and the nondiverse
defendants would be in the same position whether those
defendants are severed from this case or this case is dismissed
in its entirety without prejudice.
Still, we agree with the district court that the probate
exception to diversity jurisdiction bars some of McKie's
claims against Irene and Charles in their individual capacities.
Under the probate exception, a federal court cannot exercise
diversity jurisdiction over a complaint that seeks to (1)
“administer an estate, probate a will, or do any other purely
probate matter” or (2) “to reach a res in the custody of a
state court.” Lefkowitz v. Bank of N.Y., 528 F.3d 102, 106
(2d Cir. 2007) (quotation marks, alterations, and emphasis
omitted). The exception does not apply to actions that
“seek[ ] damages from Defendants personally rather than
assets or distributions from [the] estate,” even if they are
“intertwine[d]” with a probate action. Id. at 107–08. We
agree with the district court's analysis that McKie's claims
for breach of fiduciary duty, aiding and abetting breach
of fiduciary duty, conversion, unjust enrichment, quantum
meruit, and indebitatus assumpsit are barred by the probate
exception because they essentially “seek[ ] to mask in claims
for federal relief ... complaints about the maladministration
of [the estate]” and “[t]o provide the relief Plaintiff seeks ...
the federal court would have to assert control over property
that remains under the control of the state courts.” Id. at 107.
However, the probate exception does not bar McKie's claims
for fraudulent misrepresentation, fraudulent concealment,
and tortious interference, which seek compensatory and
punitive damages from Charles and Irene in their individual
capacities.
*3 We therefore dismiss the estate and Charles in his official
capacity from this action and proceed to consider the merits
of the remaining claims against Charles and Irene in their
individual capacities.
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II. Merits
“We review a district court's grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint
and drawing all reasonable inferences in the plaintiff's favor.”
Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145, 147
(2d Cir. 2021) (quotation marks and citation omitted). Upon
review of the record and relevant case law, we conclude that
the district court's dismissal with prejudice of the remaining
claims was correct. We affirm for substantially the same
reasons stated by the district court in its August 2, 2021
memorandum and order, where it considered McKie's claims
for fraudulent misrepresentation, fraudulent concealment,
and tortious interference.
III. Denial of Leave to Amend
Finally, the district court did not err in denying leave to
amend. We review such denials for abuse of discretion, unless
the denial is “based on an interpretation of law.” Allen v.
Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 227 (2d Cir.
2018) (quotation marks and citation omitted). A district court
generally should not dismiss a pro se complaint without
granting at least one opportunity to amend, but amendment
should be denied where the complaint gives no “indication
that a valid claim might be stated.” Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (citation omitted).
McKie does not explicitly challenge the denial of leave to
amend in his appellate brief, but he does argue that the
district court erred in denying a claim for an accounting,
which he had identified as a claim that might be raised in an
amended complaint. Such a claim relates to the estate and its
administrator, and raising it would destroy the federal courts’
diversity jurisdiction.
* * *
Accordingly, the district court's dismissal with prejudice is
VACATED in part and we DISMISS, without prejudice,
all claims against the estate of Doris Dickinson and its
administrator in his official capacity and all claims against
Charles and Irene Kornegay that fall under the probate
exception. As to the remaining claims against Charles and
Irene Kornegay in their individual capacities, we have
considered all of McKie's arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the
district court in remaining part to dismiss those claims with
prejudice.
All Citations
Not Reported in Fed. Rptr., 2022 WL 4241355
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Swinea v. Peters, Slip Copy (2025)
2025 WL 1470840
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1470840
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Justin SWINEA, Plaintiff,
v.
Adiva PETERS, et al., Defendants.
1:24-CV-01517 (MAD/PJE)
|
Signed May 22, 2025
Attorneys and Law Firms
Justin Swinea, 3401 8th St. NE, Apt. J, Minot, North Dakota
58704, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
PAUL J. EVANGELISTA, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff commenced this action on December 12, 2024,
with the filing of a complaint, and, in lieu of paying this
Court's filing fee, an application for leave to proceed in forma
pauperis (“IFP”). On December 16, 2024, plaintiff filed a pro
se motion for permission to file electronically. See Dkt. No.
5. On January 6, 2024, plaintiff filed what he titled a Motion
to Amend the Complaint. See Dkt. No. 6. The undersigned
concludes that plaintiff financially qualifies to proceed IFP. 1
Thus, plaintiff's complaint must be assessed pursuant to 28
U.S.C. §§ 1915, 1915A. 2
1 Plaintiff is advised that, despite being granted IFP
status for this action, he is still required to pay any
costs or fees he may incur in connection with this
action.
2 Despite the statutory language referring to
incarcerated individuals, these requirements apply
equally to non-prisoner pro se litigants seeking
to proceed in forma pauperis. 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.”).
II. Standard of Review
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face,” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), to “allow[ ] 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). At the pleading stage, the Court must assume the
truth of “all well-pleaded, nonconclusory factual allegations”
in the complaint. Kiobel v. Royal Dutch Petroleum Co.,
621 F.3d 111, 123 (2d Cir. 2010) (citing Iqbal, 556 U.S.
at 678). However, the Court need not accept as true “legal
conclusions.” Iqbal, 556 U.S. at 678. A pro se complaint is
entitled to special solicitude and must be liberally construed,
meaning that “a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.” Ceara v. Deacon, 916 F.3d 208, 213
(2d Cir. 2019) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)).
Nevertheless, even where a plaintiff has paid the filing
fee, a district court may dismiss the complaint sua sponte
if it determines that it lacks subject matter jurisdiction or
that the complaint is frivolous. See FED. R. CIV. P. 12(h)
(3); Fitzgerald v. First E. Seventh Street Tenants Corp.,
221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam); see
Tyler v. Carter, 151 F.R.D. 537 (S.D.N.Y. 1993), aff'd, 41
F.3d 1500 (2d Cir. 1994) (“The question is whether such
claims asserted by a fee-paying plaintiff are subject to
sua sponte dismissal by a district court under Rule 12(b)
(6). I hold that they are. A plaintiff asserting fantastic or
delusional claims should not, by payment of a filing fee,
obtain a license to consume limited judicial resources and
put defendants to effort and expense. The policies arguing
against sua sponte Rule 12(b)(6) dismissals do not apply
in these circumstances.”). “An action is ‘frivolous’ when
either: (1) ‘the factual contentions are clearly baseless, such
as when allegations are the product of delusion or fantasy’;
or (2) ‘the claim is based on an indisputably meritless legal
theory.’ ” Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998) (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)) (additional internal quotation marks and
citations omitted). Further, a complaint that is “so confused,
ambiguous, vague[,] or otherwise unintelligible that its true
substance, if any, is well disguised,” fails to comply with
Rule 8 [of the Federal Rules of Civil Procedure].” Salahuddin
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Swinea v. Peters, Slip Copy (2025)
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v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see Simmons v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
*2 The Court is required to construe pro se pleadings
liberally and interpret them to raise the “strongest [claims]
that they suggest.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (internal quotation marks and citations
omitted). 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, 470 F.3d at 477 (internal
citations, quotation marks, and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008). “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.”
Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994).
III. Discussion
A. Amended Complaint
Plaintiff filed what he styled as a motion to amend the
complaint on January 6, 2025. See Dkt. No. 6. However,
review of the filing reveals that it is an amended complaint
rather than a motion to amend. Further, as the original
complaint had not yet undergone review and no service/
summonses issued, plaintiff does not need permission to
amend. See FED. R. CIV. P. 15(a); see also Kelly v. Colonie
Police Dep't, 8:20-CV-0721 (GTS/CFH), 2020 WL 6445901,
at *1, n.1 (N.D.N.Y. Nov. 2, 2020). 3 An amended complaint
supersedes and replaces the original complaint in its entirety,
rendering it “of no legal effect,” document number 6, the
amended complaint, serves as the operative pleading. Int'l
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977),
cert. denied sub nom., Vesco & Co., Inc. v. Int'l Controls
Corp., 434 U.S. 1014 (1978); see also Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). With
the amended complaint, plaintiff did not, however, refile
the exhibits. See Dkt. No. 6. Similarly, plaintiff's amended
complaint has no caption and does not restate the names
of all of the defendants against whom he seeks to proceed.
See id. Out of special solicitude to the pro se plaintiff, the
undersigned will consider the list of defendants and exhibits
included with the original complaint as part of my review of
the amended complaint. The undersigned will not incorporate
by reference any other portion of the original complaint.
See, e.g., Granger v. City of Watertown, No. 8:20-CV-189
(MAD/CFH), 2020 WL 8771258, at *3 (N.D.N.Y. Dec.
17, 2020), report and recommendation adopted, No. 8:20-
CV-189 (MAD/CFH), 2021 WL 485732 (N.D.N.Y. Feb. 10,
2021) (“To attempt to review with the incorporated portions of
the original complaint together with the disjointed amended
complaint would place too great a burden on the Court, and,
if the matter proceeds past initial review, the defendants.”).
3 Unless otherwise noted, the Court has provided
plaintiff copies of the unpublished cases cited
herein.
Plaintiff contends that he brings this action pursuant to
42 U.S.C. § 1983 for violations of his due process rights,
denial of equal protection, “interference with Parental
Rights,” “Bias and Misconduct by CPS, Family Courts,
and Law Enforcement,” “violation of First Amendment
Rights,” “Unlawful Seizure of Plaintiff's Children,” “Denial
of Access to Justice,” “Conspiracy to Deprive Civil Rights,”
and “Denial of Rights Under Color of Law.” Dkt. No. 6 at
1. 4 Plaintiff seeks to sue Adiva Peters, the mother of his
children; Honorable Elizabeth Walsh, Judge; Joseph Martin,
Police Officer; Katherine Hicks Demps, Circuit Court Judge,
Family; Robert Fitzpatrick, Police Officer; Douglas J. Broad,
Attorney at Law; and a Doe “CPS Worker.” Dkt. No. 1.
4 On the civil cover sheet filed with the original
complaint, plaintiff checked all the boxes for
basis of jurisdiction (U.S. Government Plaintiff,
U.S. Government Defendant, Federal Question,
and Diversity). Dkt. No. 1-14. He checked boxes
indicating that he is both a citizen of New
York and another state and that defendant is
a citizen of another state. See id. He also
checked a box indicating that the case involves
“other civil rights,” “other statutory actions,” and
“constitutionality of state statutes.” Id. In response
to the form's request that he indicate the U.S. Civil
Statute under which he is filing, plaintiff wrote,
“Due Process Clause violations, Civil Rights Act,
other statutes, [illegible].” Id. Under a “brief
description of cause,” plaintiff wrote, “parental
rights violation and Corrupt Organizations Act”
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and indicated that he seeks $2-$7 million.” Id.
Although he references “Corrupt Organizations
Act” in his civil cover sheet, plaintiff does not set
forth any RICO claims in his amended complaint.
See id.; Dkt. No. 6.
*3 Plaintiff contends that on September 18, 2023, January
4, 2024, and on seven occasions between October 2023
and March 2024, plaintiff submitted various motions for a
temporary order of protection, sole legal and physical custody,
“writ of habeas corpus,” and “contempt motions” on which
he was “deni[ed] of opportunity to present evidence.” Dkt.
No. 6 at 1. Plaintiff states that his motions “were ignored or
dismissed without hearings or proper consideration, depriving
Plaintiff of procedural fairness and the ability to present
evidence, such as: Evidence of Adiva Peters's mental health
issues (Exhibit A), Documentation of non-compliance with
visitation and custody orders (Exhibit B), Photographs and
medical records of children's injuries during her custody
(Exhibit C).” Id. Plaintiff states that he was granted
emergency custody on an unspecified date, but that custody
“was amended without notice or participation, returning
custody to Adiva Peters despite no legal justification (Exhibit
C).” Id. Next, plaintiff argues that he was ‘deni[ed] access to
justice [b]y ignoring motions, denying hearings, and failing
to address legitimate concerns.” Id. at 2-3. He contends that
he was “treated differently compared to others in similar
situations in violation of his equal protection rights because
he “was denied the right to self-represent after filing a
complaint against court-appointed counsel.” Id. Plaintiff
further contends that there was judicial bias against him
because “[c]ourts dismissed Plaintiff's concerns about the
children's welfare but acted promptly on minor complaints
by Adiva Peters.” Id. He similarly alleges that “CPS and law
enforcement displayed gender bias by favoring the mother
despite her documented mental health issues and evidence
of neglect.” Id. Plaintiff further provides that CPS “failed
to investigate Plaintiff's abuse and neglect reports despite
evidence.” Id. at 2.
Plaintiff asserts that “[d]efendants unlawfully interfered with
Plaintiff's fundamental right to parent by: Ignoring custody
violations. Returning custody to an unfit parent without
due process. Failing to enforce protective orders.” Dkt.
No. 6 at 2. Plaintiff accuses “CPS, Family Courts and
Law Enforcement” of “bias and misconduct,” asserting that
“[j]udges engaged in ex parte communications that adversely
affected Plaintiff.” Id. He further accuses defendants of
“engag[ing] in coordinated actions” in conspiracy to deprive
him of his civil rights, “including: Ex parte communications
between Kentucky and New York judges. CPS and law
enforcement's failure to act on Plaintiff's reports while
retaliating against him. Judicial amendments to custody
orders based on fabricated or incomplete information.”
Id. at 2-3. Plaintiff also asserts that “[l]aw enforcement
fabricated reports and dismissed valid welfare concerns,
demonstrating systemic misconduct.” Id. at 2. Next, plaintiff
alleges that defendants “retaliated against Plaintiff for filing
complaints and seeking redress, suppressing his freedom
of speech and advocacy for his children.” Id. He states
that defendants amended custody orders “without notice or
Plaintiff's participation” which he contends “constitutes an
unlawful seizure of Plaintiff's children in violation of the
Fourth and Fourteenth Amendments.” Id.
Within his request for relief, plaintiff seeks the Court to
order “an investigation into the handling of Plaintiff's family
court case and law enforcement interactions,” “compensatory
damages for emotional distress and harm caused by
Defendants’ actions,” punitive damages “[a]gainst officials
for egregious or malicious conduct,” and injunctive relief in
the form of unspecified “orders to prevent future violations
(e.g., policy changes, protection from further interference).”
Id. at 3. Within his request for relief he seeks a “Temporary
Restraining Order prohibiting defendants from interfering
with Plaintiff's custodial rights or taking actions that may
jeopardize the well-being of the children.” Id. at 10. He further
seeks “emergency temporary custody of Plaintiff's children to
Plaintiff during the pendency of this case[.]” Id.
Within his amended complaint, plaintiff includes what he
refers to as a “Motion for Emergency Temporary Custody
Pursuant to Rule 65 of the Federal Rules of Civil Procedure”
wherein he requests – in addition to making this request for
relief in the “relief” section of his amended complaint – that
this Court order him to be awarded custody of his children
during the pendency of this case. Dkt. No. 6 at 11-12.
B. Analysis
1. Venue
Plaintiff provides that he is a resident of North Dakota. See
Dkt. Nos. 1, 6. Of the defendants listed, only Hon. Elizabeth
Walsh and Attorney Douglas J. Broda are residents of New
York. See Dkt. No. 1. Plaintiff states that the remaining
defendants reside in Kentucky. See id. at 2.
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Venue in civil actions in federal court is governed by 28
U.S.C. § 1391(b), which provides,
*4 [a] civil action may be brought in—
(1) a judicial district where any defendant resides, if all
defendants are residents of the State in which the district
is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action
is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
Although a plaintiff's choice of forum is generally granted
“considerable weight,”
[w]hen a case is filed in a district in which venue is
improper, the court “shall dismiss” the case or, “if it be in
the interest of justice, transfer such case to any district ...
in which it could have been brought.” 28 U.S.C. § 1406(a)
(emphasis added). Even if venue is proper, a district court
may sua sponte transfer an action in the interest of justice
and for the convenience of the parties and witnesses to any
other district where it might have been brought. 28 U.S.C.
§ 1404(a); Ferens v. John Deere Co., 494 U.S. 516, 530
(1990); Lead Indus. Ass'n, Inc. v. Occupational Safety &
Health Admin., 610 F.2d 70, 79 n.17 (2d Cir. 1979) (citing
cases); Kelly v. Kelly, 911 F.Supp. 70, 71 (N.D.N.Y. 1996).
Hines v. Dell, No. 5:20-CV-638 (TJM/ATB), 2020 WL
3100260, at *2 (N.D.N.Y. June 11, 2020), report and
recommendation adopted, No. 5:20-CV-638 (TJM/ATB),
2020 WL 4500677 (N.D.N.Y. Aug. 5, 2020).
Here, all defendants do not reside in this venue, 28 U.S.C.
§ 1391(b)(1), and this is not a situation where “there is no
district in which an action may otherwise be brought,” id.
§ 1391(b)(3). As plaintiff's amended complaint is factually
sparse, it is not entirely clear whether this is “a judicial district
in which a substantial part of the events or omissions giving
rise to the claim occurred.” Id. § 1391(b)(2). On balance,
however, it appears at least some of the custody matters and
orders of protection were entered within a court in this state
and District. See Dkt. No. 1-2. Accordingly, based on the
information presently before the Court and at this early stage,
it appears possible that venue may be proper under section
1391(b)(2); thus, the undersigned declines to recommend
transfer.
2. Domestic Relations Abstention Doctrine
“Under the domestic relations exception ... cases involving
divorce, alimony, and child custody remain outside federal
court jurisdiction.” Bowman v. Morris, No. 8:19-CV-97
(BKS/DJS), 2019 WL 5150196, at *5 (N.D.N.Y. Apr. 10,
2019), report and recommendation adopted, No. 8:19-CV-97
(BKS/DJS), 2019 WL 3759174 (N.D.N.Y. Aug. 9, 2019)
(citing Marshall v. Marshall, 547 U.S. 293, 308 (2006)).
“When a case calls for a federal court to interpret state
domestic relations law or ‘immerse itself in domestic relations
matters,’ the court must abstain from proceeding with the case
due to the state courts’ ‘greater interest and expertise’ in that
field.” Evans v. Adams, 714 F. Supp. 3d 119, 124 (E.D.N.Y.
2024) (quoting American Airlines, Inc. v. Block, 905 F.2d 12,
14 (2d Cir. 1990)).
*5 “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] proceedings.” Gerken v. Gordon,
No. 1:24-CV-00435 (MAD/CFH), 2024 WL 4608307, at
*6 (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) (citing Neustein v. Orbach, 732
F. Supp. 333, 339-40 (E.D.N.Y. 1990) (holding that the
Court lacked jurisdiction over factual disputes connected to
domestic relations issues)); 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[,] divorce[,] and child support[.]”).
“While the domestic relations exception is narrow, it applies
generally to issues relating to the custody of minors, and may
also apply to civil rights actions directed at challenging the
results of domestic relations proceedings.” Licata v. Kaplan,
No. 16-CV-2928 (JMA/GRB), 2017 WL 6379606, at *11,
n.7 (E.D.N.Y. Dec. 12, 2017) (quoting Sobel v. Prudenti, 25
F. Supp. 3d 340, 353 (E.D.N.Y. 2014)) (internal quotations
omitted); see also Guichiardo v. Barrazza, No. 16-CV-1222,
2016 WL 3541547, at *3 (E.D.N.Y. Jun. 23, 2016) (applying
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the domestic relations exception where the plaintiff “style[d]
some of her claims as raising constitutional issues, but the
allegations stem from a state domestic relations matter ....”).
Although plaintiff grounds his amended complaint in
constitutional claims, it is clear from the face of the amended
complaint that he seeks to challenge decisions made in Family
Court proceedings and related child custody matters. He
seeks this Court to intervene in state custody proceedings
by directing the family courts to award plaintiff temporary
custody and issue orders “to prevent future violations.” Dkt.
No. 6 at 3. Review of this action would require this Court
“to interpret state domestic relations law or ‘immerse itself
in domestic relations matters’ ”; thus, “the court must abstain
from proceeding with the case due to the state courts’ ‘greater
interest and expertise’ in that field.” Evans, 714 F. Supp.
3d at 124. Accordingly, as this Court lacks subject matter
jurisdiction to review these claims, it is recommended that the
action be dismissed in its entirety. 5
5 “[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; however, the
undersigned does note that if the underlying family
court proceedings are ongoing, this Court is likely
barred from reviewing the family court orders/
proceedings under the Younger abstention doctrine.
See Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002). If the Family
Court proceedings are complete, this Court is likely
barred from reviewing the Family Court orders/
proceedings under the Rooker-Feldman doctrine.
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)). Further, plaintiff's claims
against Elizabeth Walsh and Katherine Hicks
Demps are barred by judicial immunity. “With
minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their
judicial functions.” 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 applies even when the judge is accused
of acting maliciously or corruptly.” Id. (citation
omitted). Claims against Adiva Peters are also
subject to dismissal as plaintiff has not shown,
beyond vague, conclusory allegations, that Ms.
Peters, a private actor, was “ ‘a willful participant in
joint activity with the State or its agents.’ ” Young v.
Suffolk Cnty., 705 F. Supp. 2d 183, 195 (E.D.N.Y.
2010) (quoting Ciambriello v. Cnty. of Nassau, 292
F.3d 307, 324 (2d Cir. 2002)) (quoting Adickes v.
S.H. Kress & Co., 398 U.S. 144, 152 (1970)). Next,
plaintiff's amended complaint fails to demonstrate
each defendants’ personal involvement in the
alleged constitutional violations as plaintiff largely
refers collectively to “defendants” rather than
specify each defendants’ participation. See Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting
Moffitt v. Town of Brookfield, 950 F.2d 880, 885
(2d Cir. 1991)). Plaintiff does not at all explain how
Attorney Broda, the attorney for the children, see
dkt. no. 1-4 at 15, is involved in his underlying
constitutional violations allegations; however, the
undersigned notes that attorney malpractice fails to
amount to a constitutional claim. See Caldwell v.
Petros, No. 1:22-CV-0567 (BKS/CFH), 2022 WL
15697608, at *3 (N.D.N.Y. Oct. 28, 2022), report
and recommendation adopted, No. 1:22-CV-567
(BKS/CFH), 2022 WL 16918287 (N.D.N.Y. Nov.
14, 2022) (“[p]rivate attorneys, whether court
appointed or privately retained, are not liable
under 42 U.S.C. [§] 1983.”) (citation omitted).
To the extent he may seek to proceed against
Broda for malpractice under New York State
law, should all the federal claims be dismissed,
the undersigned would recommend declining
supplemental jurisdiction. See 28 U.S.C. § 1367(c)
(3) (2006).
*6 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 and internal quotation marks 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,
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222 F.3d 99, 112 (2d Cir. 2000)). Here, a second amended
complaint would not cure the defects the undersigned has
identified. Accordingly, it is recommended that plaintiff not
be provided leave to further amend.
IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff's IFP application, Dkt. No. 2, is
GRANTED; and it is
RECOMMENDED, that plaintiff's Amended Complaint,
Dkt. No. 6, including his request for a temporary restraining
order, be DISMISSED in its entirety without prejudice for
lack of subject matter jurisdiction and without leave to
amend, and it is further
RECOMMENDED, that, insofar as plaintiff seeks to move
to amend his complaint, Dkt. No. 6., such motion is DENIED
as unnecessary, FED. R. CIV. P. 15(a); and it is further
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically, Dkt. No. 5, be DISMISSED
as moot; and it is
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff 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. 6
6 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. See
id. § 6(a)(1)(c).
All Citations
Slip Copy, 2025 WL 1470840
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Justin SWINEA, Plaintiff,
v.
Adiva PETERS, et al., Defendants.
1:24-CV-1517 (MAD/PJE)
|
Signed July 2, 2025
Attorneys and Law Firms
JUSTIN SWINEA, Minot, North Dakota, Plaintiff Pro Se.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, United States District Judge:
I. BACKGROUND
*1 On December 12, 2024, Plaintiff Justin Swinea
commenced this action, pro se, against the following
Defendants: the mother of Plaintiff's children, Adiva Peters,
Rensselaer County Family Court Judge Elizabeth Walsh,
Police Officer Joseph Martin, Circuit Family Court Judge
Katherine Hicks Demps, Police Officer Robert Fitzpatrick,
Attorney at Law Douglas J. Broda, and a “CPS Worker.”
Dkt. No. 1 at 1-2, 5. Plaintiff alleges, pursuant to 42 U.S.C.
§ 1983, denial of due process, denial of equal protection,
interference with his parental rights, bias and misconduct
by Child Protective Services (“CPS”), family courts, and
law enforcement, violations of his First Amendment rights,
unlawful seizure of Plaintiff's children, denial of access to
justice, and conspiracy to deprive him of his civil rights. Dkt.
No. 6 at 1-2. Plaintiff filed an application for leave to proceed
in forma pauperis (“IFP”) in lieu of paying the Court's filing
fee. See Dkt. No. 2. Plaintiff also filed a pro se motion for
permission to file electronically. See Dkt. No. 5.
On January 6, 2025, Plaintiff filed an Amended Complaint
which he labeled as a motion to amend the complaint. See
Dkt. No. 6. Plaintiff did not need permission to amend,
and thus, the Amended Complaint supersedes the original
complaint. FED. R. CIV. P. 15(a). In the Amended Complaint,
however, Plaintiff did not refile the exhibits he provided
with his original complaint, restate the names of Defendants,
or include a caption. See Dkt. No. 6. Affording special
solicitude to the pro se Plaintiff, as the Court must, Magistrate
Judge Paul J. Evangelista considered the list of Defendants
and exhibits included with the original complaint as part of
the Amended Complaint. See Dkt. No. 10 at 4-5; see also
Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 489
(2d Cir. 2018) (citing Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011)).
On May 22, 2025, Magistrate Judge Evangelista issued
a Report-Recommendation and Order granting Plaintiff's
IFP motion. See Dkt. No. 10 at 2. Magistrate
Judge Evangelista also recommended dismissing Plaintiff's
Amended Complaint without prejudice and without leave to
amend. See id. at 12-13. Finally, Magistrate Judge Evangelista
recommended denying Plaintiff's motion to amend his
complaint as unnecessary and dismissing the pro se motion to
file electronically as moot. See id.
When a party files specific objections to a magistrate
judge's recommendations, 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.” 28 U.S.C. § 636(b)(1). To be specific, the objection
must “ ‘identify [1] the portions of the proposed findings,
recommendations, or report to which it has an objection and
[2] the basis for the objection.’ ” Boice v. M+W U.S., Inc., 130
F. Supp. 3d 677, 683 (N.D.N.Y. 2015) (quoting N.D.N.Y. L.R.
72.1(c)) (footnote omitted). However, when a party declines
to file objections or files “[g]eneral or conclusory objections
or objections which merely recite the same arguments [that
he presented] to the magistrate judge,” the court reviews the
recommendations for clear error. O'Diah v. Mawhir, No. 9:08-
CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011)
(citations and footnote omitted). After the appropriate review,
“the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). No objections to Magistrate
Judge Evangelista's Report-Recommendation and Order have
been filed; therefore, it will be reviewed for clear error.
*2 The Report-Recommendation and Order, which was
mailed to Plaintiff on May 22, 2025, was returned to the
Court as undeliverable on June 9, 2025. See Dkt. Nos. 10,
11. Under Local Rule 10.1(c)(2), “[a]ll ... pro se litigants
must immediately notify the Court of any change of address.”
N.D.N.Y. L.R. 10.1(c)(2). This is emphasized in the Pro Se
Handbook, which states as follows: “If at any time your own
address changes you must immediately notify the Court in
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writing.” N.D.N.Y. Pro Se Handbook at 16. If a pro se litigant
fails to notify the Court of a change of address, the Court may
dismiss any pending action. See N.D.N.Y. L.R. 41.2(b). The
Pro Se Handbook, Notice, and Local Rules were mailed via
regular mail to Plaintiff on December 13, 2024. See Dkt. No.
3. The pro se notice was signed and returned by Plaintiff via
regular mail, acknowledging receipt of the Court's rules and
his obligations on January 6, 2025. See Dkt. No. 8.
Plaintiff has never seen the Report-Recommendation and
Order because it was returned as undeliverable on June
9, 2025. See Dkt. Nos. 10, 11. Plaintiff had fourteen
days in which to file written objections to the Report-
Recommendation and Order, which lapsed on June 5, 2025.
See id. However, given Plaintiff's pro se status, the Court
waited an additional week before reviewing the Report-
Recommendation and Order for Plaintiff to update his address
and file objections. Plaintiff has not filed anything with the
Court since January 6, 2025. See Dkt. Nos. 6, 7, 8.
“It is incumbent upon litigants to inform the clerk of address
changes, for it is manifest that communications between
the clerk and the parties or their counsel will be conducted
principally by mail.” Hurd v. Porter, No. 9:11-CV-1388, 2014
WL 467894, *4 (N.D.N.Y. Feb. 6, 2014) (quoting Dansby
v. Albany Cnty. Corr. Facility, No. 95-CV-1525, 1996 WL
172699, *1 (N.D.N.Y. Apr. 10, 1996)). “However, ‘regardless
of whether Plaintiff actually received notice that delay could
result in dismissal, it remained his duty to diligently pursue his
case and to inform this Court[ ] ... of any change of address.’
” Moloney v. West, No. 1:24-CV-685, 2025 WL 828206, *2
(N.D.N.Y. Mar. 17, 2025) (quoting Thornton v. Moroney,
No. 13-CV-8912, 2014 WL 2805236, *2 (S.D.N.Y. June 20,
2014)). “It is not the function of this Court to chase dilatory
plaintiffs while other litigants in this district seek access to
the courts.” Id. (quotations and quotation marks omitted).
A plaintiff's “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) (quoting Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir. 1983)). Therefore, the Court will review the Report-
Recommendation and Order for only clear error.
As explained in greater detail in the Report-Recommendation
and Order, Plaintiff alleges that on September 18, 2023,
January 4, 2024, and seven occasions between October 2023
and March 2024, motions for temporary orders of protection,
sole legal and physical custody, “writ of habeas corpus,”
and “contempt” were submitted by Plaintiff and denied by
Defendant Walsh. See Dkt. No. 10 at 5-6; see also Dkt. No.
6 at 1. Plaintiff alleges his motions were denied without
the opportunity to present evidence through a hearing nor
were they properly considered. See Dkt. No. 6 at 1. Plaintiff
contends this denied him procedural fairness. See id. Plaintiff
contends Defendant Peters suffers from mental health issues
and endangered his children, making her an unfit parent. See
id. at 1-2. Plaintiff states that he was granted emergency
custody, but it was amended without notice and custody was
returned to Defendant Peters without legal justification. See
id. at 1. Plaintiff avers he was deprived of his constitutional
rights when “he was denied the right to self-represent after
filing a complaint against court-appointed counsel.” Id. at
2-3. He alleges judicial bias in the dismissal of his child
welfare concerns. See id. He also claims that “CPS and law
enforcement displayed gender bias by favoring the mother
despite her documented mental health issues and evidence of
neglect.” Id.
*3 Plaintiff asserts “Defendants unlawfully interfered with
[his] fundamental right to parent [ ] by [i]gnoring custody
violations[, r]eturning custody to an unfit parent[, and] failing
to enforce [a] protective order.” Id. at 2. He alleges these acts
of “retaliation” and mistreatment suppressed his freedom of
speech and violated his constitutional rights. Id.
Plaintiff requests relief as follows: “an investigation into the
handling of Plaintiff's family court case and law enforcement
interactions,” “compensatory damages for emotional distress
and harm caused by Defendants’ actions,” “punitive damages
[and injunctive relief] to deter future violations,” and
“nominal damages.” Id. at 3. He also seeks emergency
temporary custody of his children and a temporary restraining
order prohibiting interference with his parental rights
pursuant to Rule 65 of the Federal Rules of Civil Procedure.
See Dkt. No. 6 at 1.
II. DISCUSSION
A. Venue
Plaintiff states he is a resident of North Dakota; therefore,
Magistrate Judge Evangelista first addressed whether venue
is appropriate in this Court. See Dkt. No. 10 at 8-9. Venue
in civil actions in federal court is governed by 28 U.S.C. §
1391(b), which provides as follow:
A civil action may be brought in—
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(1) a judicial district where any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred,
or a substantial part of property that is the subject of
the action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to
the court's personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b). “The statutory standard for venue
focuses ... on the location where the events occurred ... [and
the court] must determine only whether a substantial part of
the events giving rise to the claim occurred in [the district].”
Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 (2d Cir.
1992) (quotations omitted). The “substantial” requirement
allows selection of the appropriate district by balancing “the
availability of witnesses, the accessibility of other relevant
evidence, and the convenience of the defendant” to avoid “an
unfair or inconvenient place for trial.” Daniel v. Am. Bd. of
Emergency Med., 428 F.3d 408, 432 (2d Cir. 1992) (citing
Leroy v. Great W. United Corp., 443 U.S. 173, 184 (1979)).
“ ‘Substantiality’ for venue purposes is more a qualitative
than quantitative inquiry, determined by assessing the overall
nature of the plaintiff's claims and the nature of the specific
events or omissions in the forum, and not by simply adding
up the number of contacts.” Id. at 432-33 (citations omitted).
Of the six named Defendants, only two are residents of New
York—Honorable Elizabeth Walsh and Attorney Douglas J.
Broda—while the remaining reside in Kentucky. See Dkt.
No. 6 at 5. However, Magistrate Judge Evangelista found
that, on balance, “at least some of the custody matters and
orders of protection were entered within a court in the state
and District.” Dkt. No. 10 at 9; see also Dkt. No. 1-2.
If there are material acts within the forum state and they
“bear a close nexus to the claims[,]” then they are deemed
substantial enough to establish proper venue. Daniel, 428 F.3d
at 433. Here, certain custody matters were held and orders of
protection entered in family court in the State of New York
in Rensselaer County, which “bear[s] a close nexus to the
claims.” Id.; see also Dkt. No. at 1-2. As Magistrate Judge
Evangelista concluded, venue is appropriate under 28 U.S.C.
§ 1391(b)(2) because “a substantial part of the events or
omissions giving rise to the claim occurred” in this District.
28 U.S.C. § 1391(b)(2); see Dkt. No. 10 at 8-9.
B. Domestic Relations Abstention Doctrine
*4 “If the [C]ourt determines at any time that it lacks subject-
matter jurisdiction, the [C]ourt must dismiss the action.”
FED. R. CIV. P. 12(h)(3). Under the domestic relations
abstention doctrine, “[f]ederal courts [must] abstain from
exercising their federal-question jurisdiction over claims
involving domestic-relations issues” unless the plaintiff can
show there is “an obstacle that prevents him from receiving a
full and fair determination of those issues in the state courts.”
Ganiyu v. Lopez, No. 1:19-CV-11605, 2020 WL 1467356,
*3 (S.D.N.Y. Mar. 25, 2020) (citing Am. Airlines, Inc. v.
Block, 905 F.2d 12, 14 (2d Cir. 1990)); see also United States
v. Windsor, 570 U.S. 744, 766 (2013) (“ ‘[R]egulation of
domestic relations’ is ‘an area that has long been regarded as
a virtually exclusive province of the States’ ”) (citing Sosna
v. Iowa, 419 U.S. 393, 404 (1975)). 1
1 The Second Circuit has noted in recent cases
that there is a difference between the “domestic
relations exception” and the “domestic relations
abstention doctrine.” The “domestic relations
exception” applies to diversity jurisdiction cases,
see Ankenbrandt v. Richards, 504 U.S. 689, 692
(1992), while the “domestic relations abstention
doctrine” applies to federal-question jurisdiction
cases, see Mochary v. Bergstein, 42 F.4th 80, 89 (2d
Cir. 2022) (citing Am. Airlines, Inc. v. Block, 905
F.2d 12 (2d Cir. 1990)).
The domestic relations abstention doctrine encompasses
“cases involving the issuance of a divorce, alimony, or child
custody decree.” Ankenbrandt v. Richards, 504 U.S. 689,
704 (1992); see also Cashman v. Rosenberger, No. 1:05-
CV-0640, 2005 WL 1331127, *2 (N.D.N.Y. June 1, 2005)
(noting that, for over a century, the Supreme Court has
held 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’
”) (quoting Ex parte Burrus, 136 U.S. 586, 594 (1890)).
The domestic relations abstention doctrine can apply even
where the plaintiff “style[d] some of [the] claims as raising
constitutional issues, but the allegations stem from a state
domestic relations matter ....” Guichardo v. Barraza, No. 16-
CV-1222, 2016 WL 3541547, *3 (E.D.N.Y. June 23, 2016)
(citations omitted).
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Here, Plaintiff seeks to bring this action under federal
question jurisdiction because he alleges constitutional
violations pursuant to 42 U.S.C. § 1983; however, the content
he seeks to challenge concerns decisions made in family court
and related child custody matters. See Dkt. No. 6. Magistrate
Judge Evangelista concluded that Plaintiff's complaint asks
the Court to interpret state domestic relations law, which is
exclusively regulated by the states. See Dkt. No. 10 at 11.
See Windsor, 570 U.S. at 766 (citing Sosna, 419 U.S. at
404). Magistrate Judge Evangelista is correct. Plaintiff asks
for an investigation into the handling of a family court case
and related law enforcement interactions. See Dkt. No. 6
at 3. These issues and Plaintiff's requested remedies are of
the subject of domestic relations, as they refer to custody
and family court proceedings. As such, Magistrate Judge
Evangelista is correct in concluding that this Court lacks
subject matter jurisdiction over the purported claims, and the
action should be dismissed.
Finally, it is discouraged for a district court to “ ‘dismiss
a pro se complaint without granting the plaintiff leave to
amend, [unless it] would be futile.’ ” Johnson v. Oneida
Nation Enters., LLC, No. 5:19-CV-853, 2019 WL 5091952,
*2 (N.D.N.Y. Oct. 11, 2019) (quoting Tylicki v. Schwartz,
401 Fed. Appx. 603, 604 (2d Cir. 2010)) (additional citation
omitted). Here, amendment would be futile because Plaintiff
has not alleged any claims that would confer subject matter
jurisdiction because the subject of his complaint relates to
domestic relations matters—claims over which the Court
must abstain. See Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (holding that if the problems with the causes
of action are substantive, better pleading would not cure
it); 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”). Accordingly, Magistrate Judge Evangelista's
recommendation to deny leave to amend is appropriate.
III. CONCLUSION
*5 After carefully reviewing Plaintiff's submissions,
Magistrate Judge Evangelista's Report-Recommendation and
Order, and the applicable law, the Court hereby
ORDERS Magistrate Judge Evangelista's Report-
Recommendation and Order (Dkt. No. 10) is ADOPTED in
its entirety for the reasons set forth herein; and the Court
further
ORDERS Plaintiff's Amended Complaint (Dkt. No. 6) is
DISMISSED without prejudice and without leave to
amend; and the Court further
ORDERS Plaintiff's motion for permission to file
electronically (Dkt. No. 5) is DENIED as moot; and the
Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants’ favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this
Memorandum-Decision and Order on Plaintiff in accordance
with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1819710
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:26-cv-00402-ECC-CBF Document 7 Filed 04/30/26 Page 32 of 52

Lawler v. ViaPort New York, LLC, Not Reported in Fed. Supp. (2019)
2019 WL 2717900
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 2717900
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jacob LAWLER, Plaintiff,
v.
VIAPORT NEW YORK, LLC;
Terri Emond, Defendants.
1:19-CV-548 (GLS/CFH)
|
Signed 06/28/2019
Attorneys and Law Firms
Jacob Lawler, 2723 Wellington Avenue, Schenectady, New
York 12306, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Jacob Lawer commenced this action
on May 8, 2019, with the filing of a complaint and an
application to proceed in forma pauperis (“IFP”). Dkt. No. 1
(“Compl.”), Dkt. Nos. 2-4. Plaintiff has also filed a motion
for appointment of counsel. Dkt. No. 3. After reviewing
plaintiff's application, the undersigned concludes that plaintiff
may properly proceed IFP for purposes of filing. The
undersigned must now assess plaintiff's complaint pursuant to
28 U.S.C. § 1915(e).
I. Initial Review
A. Legal Standard
Section 1915(e) of Title 28 of the United States Code 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 with his action.
Pleading guidelines are set forth in the Federal Rules of
Civil Procedure. Specifically, Rule 8 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 ... 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, 54 (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 ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; 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.” Id. at 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, 189 F.R.D. at 54
(internal quotation marks and citations omitted).
In deciding whether a complaint states a colorable claim, a
court must extend a measure of deference to pro se litigants,
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Lawler v. ViaPort New York, LLC, Not Reported in Fed. Supp. (2019)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per
curiam), also referred to as “special solicitude.” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
However, the court also has an 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
E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.
2000). 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). In such cases of
dismissal, particularly when reviewing a pro se complaint, the
court generally affords the plaintiff an opportunity amend the
complaint as long as there is a possibility that an amendment
would be able to cure the identified defects. See Simmons v.
Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995). 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) (citation omitted).
B. Allegations in Complaint
*2 Although plaintiff does not identify the statute under
which his claims arise, it appears that plaintiff seeks to bring
this action pursuant to 42 U.S.C. § 1983, as he completed
his complaint on the form civil rights complaint. Dkt No. 1
(“Compl.”). Plaintiff's complaint is very sparse and lacking
in detail. Id. He contends that on February 8, 2018, he called
OSHA “due to fire hazards.” Id. at 2. He was terminated
on February 15, 2018, “for something that had nothing
to do with me that supposidly [sic] happened February 1
2018 into February 2 nd 2018.” Id. For his causes of action,
plaintiff provides that he wishes “to negotiate/mediate with
the defendant,” “continue the lawsuit with defendant,” “[p]ut
on the news/in newspapers and make the lawsuit public,” and
“[a] settlement so that I am able to fix my credit and to show
them that what they did was wrong/hope they learn from their
mistake.” Id. at 3. No other information is provided; however,
plaintiff does attach a right to sue letter from the U.S. Equal
Employment Opportunity Commission dated February 21,
2019. Compl. at 5.
First, although plaintiff does not cite the First Amendment, he
arguably may be attempting to set forth a First Amendment
claim against defendants for retaliating against him for
exercising his First Amendment free speech rights. See
generally Compl. However, to the extent plaintiff seeks to
do as such, his claim must fail as none of the defendants
have acted under the color of state law as plaintiff utterly
fails to show that defendants ViaPort New York, LLC and
Terri Emond are state actors. ViaPort New York, LLC is not a
public entity; thus, plaintiff would not be a public employee.
Although plaintiff does not identify Terri Emond, the Court
can assume based on the context of the information provided
that she was a supervisory or management employee with
ViaPort New York, LLC. The complaint makes no allegation
whatsoever that Terri Emmond acted under color of state
law. Accordingly, insofar as plaintiff's complaint may be
interpreted as attempting to set forth a First Amendment
retaliation claim, it is recommended that this claim be
dismissed with prejudice for failure to state a claim upon
which relief can be granted.
Second, plaintiff is likely attempting to proceed under the
New York State whistleblower statute.
New York State's Whistleblower Statute prohibits an
employer from “tak[ing] any retaliatory personnel action
against an employee ... [who] discloses ... an activity,
policy or practice of the employer that is in violation
of law, rule or regulation which violation creates and
presents a substantial and specific danger to the public
health or safety.” N.Y. LAB. LAW § 740(2)(a); see also
Calabro v. Nassau Univ. Med. Ctr., 424 F.Supp.2d 465,
475 (E.D.N.Y. 2006). The Whistleblower Statute, however,
“does not extend its protections to those who complain
of any unlawful conduct by the employer.” Collette v. St.
Luke's Roosevelt Hosp., 132 F.Supp.2d 256, 268 (S.D.N.Y.
2001); see, e.g., Remba v. Fed'n Emp't & Guidance Serv.,
76 N.Y.2d 801, 802-03 (N.Y. 1990) (holding that § 740 does
not protect an employee who reports fraudulent billing).
Here, because the conduct complained of by Burnett,
namely misusing the company gas credit card, could in no
imaginable way create or present a “substantial and specific
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Lawler v. ViaPort New York, LLC, Not Reported in Fed. Supp. (2019)
2019 WL 2717900
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
danger to the public health or safety,” the court dismisses
any claim brought pursuant to § 740.
Burnett v. Trinity Inst. Homer Perkins Ctr., Inc., No. 1:10-
CV-681 (GLS/DRH), 2011 WL 281023, at *4 (N.D.N.Y. Jan.
25, 2011). 1 However, the New York State Whistleblower
Statute is not a federal law, but state law. Thus, it cannot be
reviewed in federal court, absent either diversity jurisdiction
or if this Court chooses to review it pursuant to its
supplemental jurisdiction.
1 Unpublished cases cited herein have been provided
to plaintiff pro se.
To properly allege diversity jurisdiction, plaintiff must allege
(1) diversity of citizenship between the parties, and (2) an
amount in controversy that exceeds $75,000. See 28 U.S.C. §
1332(a). Here, plaintiff cannot establish diversity jurisdiction
because plaintiff and defendants are all citizens of the same
state, New York. See Compl. Although plaintiff, in his civil
cover sheet, seeks damages greater than $75,000, dkt. no. 1-1,
because plaintiff cannot establish that he and all defendants
are citizens of different states, plaintiff has failed to establish,
and cannot establish, the existence of diversity jurisdiction.
*3 In addition, plaintiff has also failed to establish federal
question jurisdiction as he has not set forth a valid federal
law claim. 28 U.S.C. § 1331 confers onto federal courts
subject matter jurisdiction over all federal questions, or “all
civil actions arising under the Constitution, laws, or treaties
of the United States.” Federal question jurisdiction exists
where the complaint “establishes either that federal law
creates the cause of action or that the plaintiff's right to
relief necessarily depends on a resolution of a substantial
question of federal law.” Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Although,
generally, this Court has the discretion to exercise its
supplemental jurisdiction to review state law claims in some
cases, Block v. First Blood Assocs., 988 F.2d 344, 351 (2d
Cir. 1993), where there is no meritorious federal claim before
the Court, the district court should decline to exercise its
supplemental jurisdiction to review any related state law
claims. See, e.g., Purgess v. Sharrock, 33 F.3d 134 (2d Cir.
1994); 28 U.S.C. § 1367(c). Accordingly, it is recommended
that plaintiff's retaliation claim pursuant to New York State
whistleblower law be dismissed with prejudice, but without
prejudice to replead in the appropriate state court, should he
wish to do so. 2
2 The undersigned makes no comment as to the
success of claim, or the ability to bring such claim,
in state Court.
Generally, in cases involving pro se plaintiffs, a court should
not dismiss a complaint 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). However, 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.” 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.”). Although the undersigned recognizes that
dismissal with prejudice is a harsh remedy, leave to amend
would be futile as the defects in plaintiff's claims cannot be
cured with a better pleading as the problems are substantive.
Cuoco, 222 F.3d at 112; Ruffolo v. Oppenheimer & Co., 987
F.2d 129, 131 (2d Cir. 1993). Accordingly, it is recommended
that dismissal be with prejudice and without opportunity to
amend.
II. Motion for Counsel
Plaintiff requests the appointment of counsel in this case.
Dkt. No. 3. He indicates that he has contacted two law firms
and that he is unable to retain counsel because he cannot
afford the fees. Id. As the undersigned recommends dismissal
of plaintiff's complaint without leave to amend, plaintiff's
motion for counsel is denied. However, the denial is without
prejudice to replead should the circumstances change.
III. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff's motion to proceed in forma
pauperis, dkt. no. 2, is GRANTED for the purposes of filing;
and it is furher
ORDERED, that plaintiff's motion for the appointment of
counsel, dkt. no. 3, is DENIED without prejudice and with
leave to renew should his circumstances change; and it is
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Lawler v. ViaPort New York, LLC, Not Reported in Fed. Supp. (2019)
2019 WL 2717900
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
RECOMMENDED, that plaintiffs complaint, dkt. no. 1, be
DISMISSED with prejudice and without leave to amend,
but without prejudice to plaintiff seeking to bring his claim
in the appropriate state court, should he wish to do so; and
is
ORDERED, that the Clerk of the Court serve this Report-
Recommendation & Order on plaintiff in accordance with
Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen 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. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of Health and 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. 3
3 If you are proceeding pro se and are served with this
Order by mail, three additional days will be added
to the fourteen-day period, meaning that you have
seventeen days from the date the 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
hat is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2019 WL 2717900
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:26-cv-00402-ECC-CBF Document 7 Filed 04/30/26 Page 36 of 52

Lawler v. Viaport New York, LLC, Not Reported in Fed. Supp. (2019)
2019 WL 6134180
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 6134180
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jacob LAWLER, Plaintiff,
v.
VIAPORT NEW YORK, LLC, et al., Defendants.
1:19-CV-548 (GLS/CFH)
|
Signed 11/19/2019
Attorneys and Law Firms
Jacob Lawler, Schenectady, NY, pro se.
ORDER
Gary L. Sharpe, U.S. District Judge
*1 On June 28, 2019, Magistrate Judge Christian F. Hummel
issued a Report-Recommendation & Order (R&R), which
granted plaintiff pro se Jacob Lawler's application to proceed
in forma pauperis and recommended that his complaint,
(Compl., Dkt. No. 1), be dismissed in its entirety with
prejudice and without leave to amend, but without prejudice
to bring his claim in the appropriate state court. (Dkt. No. 5 at
8-9.) Judge Hummel also recommended that Lawler's motion
for the appointment of counsel be denied without prejudice.
(Id. at 9.) Pending are Lawler's objections to the R&R. (Dkt.
No. 6.) For the reasons that follow, the R&R is adopted in its
entirety.
First, Lawler's objections are untimely. When a report and
recommendation is filed, the parties have fourteen (14) days
from receipt of the report to file specific, written objections
to proposed findings and recommendations. See 28 U.S.C. §
636(b)(1)(C); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c).
Three (3) additional days are added to the fourteen-day period
when the plaintiff is served with the report by mail. See Fed.
R. Civ. P. 6(d). Lawler's objections were due on or before
July 15, 2019, and he did not object until July 17, 2019,
(Dkt. No. 6), making his objections untimely. Nevertheless,
in light of Lawler's pro se status, the court has considered his
untimely objections for clear error. See Almonte v. N.Y. State
Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *5-6
(N.D.N.Y. Jan. 18, 2006).
Additionally, although Lawler asserts that he “object[s] to
the R&R,” (Dkt. No. 6 at 1), he does not actually raise any
specific objections with the R&R's legal analysis. Instead, he
asks for “an ap[p]eal to bring [his] claim ... to a [New York
state court],” and provides additional information regarding
the facts giving rise to his complaint. (Id. at 1-3.) Thus, even
if Lawler's “objections” were timely, they still trigger review
for clear error only. See Almonte, 2006 WL 149049, at *5-6.
The court, having carefully reviewed the record, finds no clear
error in the R&R and adopts it in its entirety.
Without commenting on whether Lawler's claims have merit,
or whether he has the ability to bring such claims in state
court, it is noted that according to 42 U.S.C. § 1367(d), the
period of limitations for Lawler's claims shall be tolled for a
period of thirty (30) days after the filing of this Order, unless
New York law provides for a longer tolling period. 1
1 New York law appears to provide for a longer
tolling period of six months. See N.Y. C.P.L.R.
205(a).
Accordingly it is hereby
ORDERED that the R&R (Dkt. No. 5) is ADOPTED in its
entirety; and it is further
ORDERED that Lawler's complaint (Dkt. No. 1) is
DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy
of this Order to Lawler in accordance with the Local Rules
of Practice.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 6134180
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:26-cv-00402-ECC-CBF Document 7 Filed 04/30/26 Page 37 of 52

Gammons v. Cody, Slip Copy (2025)
2025 WL 2722411
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2722411
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Shawn Taylor GAMMONS, Plaintiff,
v.
Samantha Anna-Kay CODY, et al., Defendants.
1:25-CV-941 (AJB/DJS)
|
Signed September 2, 2025
Attorneys and Law Firms
SHAWN TAYLOR GAMMONS, Plaintiff, Pro Se, Albany,
New York 12206.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has forwarded for review a civil Complaint
filed by Plaintiff. The Complaint was filed July 17, 2025. Dkt.
No. 1, Compl. The filing fee in this action has not been paid,
but Plaintiff has filed a motion to proceed in forma pauperis.
Dkt. No. 2. That Motion has been granted. The matter has
been referred to the undersigned for an initial review pursuant
to L.R. 72.3.
I. FACTUAL ALLEGATIONS IN THE COMPLAINT
Plaintiff Shawn Taylor Gammons and Defendant Samantha
Anna-Kay Cody were married and have two children together,
S.N. and S.M. See generally, Compl. Plaintiff and Defendant
are now separated, and Samantha Cody now resides with
Defendant Derek Cody, in Freehold, New York. Compl. at
¶¶ 7 & 8. The children live with their mother in Freehold,
while Plaintiff lives in Albany, New York. Compl. at ¶¶ 5 &
6. In March 2025, domestic strife between Samantha Cody
and Derek Cody precipitated a custody proceeding in Greene
County Family Court. Compl. at ¶¶ 18 & 19. This matter was
assigned to Defendant Family Court Judge Charles Tailleur
and, it appears, is still ongoing. Judge Tailleur appointed
Defendant Andrea Gamalski to represent Plaintiff, Defendant
Sondra Smith to represent Defendant Samantha Cody, and
Defendants Max Zacker and James Gross to represent S.N.
and S.M. Gammons respectively. Compl. at ¶¶ 12-15. Plaintiff
alleges these court appointed attorneys capitalized on a
bias against him, failed to make proper motions, provided
ineffective counsel for his children, and refused to submit
favorable evidence. Compl. at ¶¶ 22 & 31.
Judge Tailleur issued, and at times extended, a temporary
order of protection against Plaintiff, ordered him to pay child
support, and ordered to Plaintiff to serve 30 days in Greene
County Jail on account of his failure to do so. Plaintiff alleges
that he was not given sufficient notice of the hearing for a
temporary order of protection. He further alleges that the child
support determinations of both Judge Tailleur and Defendant
Sarah Richards, a child support magistrate, are without
legal justification or jurisdiction, and that conclusions of his
violation and the subsequent jail time are based on erroneous
information provided to Greene County Family Court by
Samantha and Derek Cody. Specifically, Plaintiff contests the
sum of $27,000 owed in child support as discharged by Judge
Tailleur in an earlier proceeding. Plaintiff alleges, as part of
a broader conspiracy, that his testimony was systematically
excluded, while representations by Defendants, including
court appointed attorneys, were admitted despite what he
contends are either biases or outright lies. Plaintiff also takes
issue with the denial of certain proposed conditions of custody
issued by Judge Tailleur. See generally Compl.
Plaintiff also lists his children as plaintiffs in this action.
He claims his children were prevented from participating in
the Family Court proceedings, exposed to domestic violence
by Samantha and Derek Cody, and that S.N.G. was body-
slammed by a New York State Trooper and ordered to enroll
in a Pre-Person's In Need of Supervision program without due
process. Id.
*2 Plaintiff also claims he has been denied custodial,
visitation, and parental rights with respect to S.N. and S.M.
He further claims that Samantha Cody attempted to prevent
court-appointed attorneys from interviewing the children in
relation to the custody proceeding. Id.
Plaintiff alleges violations of his Fourth, Sixth, Seventh,
Thirteenth, and Fourteenth Amendment rights by the
Defendants. Plaintiff also claims common law conversion as
against Defendants Samantha and Derek Cody. Finally, he
appears to allege a separate due process violation against
Columbia and Greene Counties. In his prayer for relief,
Plaintiff demands a jury trial and requests the arrest and
deportation of Samantha Cody, sole legal and residential
custody of S.N. and S.M., discharge of his child support
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Gammons v. Cody, Slip Copy (2025)
2025 WL 2722411
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
obligations, impeachment of all public officers named as
Defendants in the case, a public apology, and derivative use
immunity. Compl. at pp. 15-16
II. GOVERNING LEGAL STANDARD
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to
proceed in forma pauperis, “(2) ... 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). 1
1 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).
In reviewing a pro se complaint, the court has a duty to
show liberality toward pro se litigants, see Nance v. Kelly,
912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise “extreme caution ... in ordering sua sponte dismissal
of a pro se complaint before the adverse party has been
served and both parties (but particularly the plaintiff) have
had an opportunity to respond.” Anderson v. Coughlin, 700
F.2d 37, 41 (2d Cir. 1983). Therefore, 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) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 556).
Although a 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 Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[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.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
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. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).
III. DISCUSSION
A. Plaintiff's Claims on Behalf of his Children
*3 It appears that Plaintiff may intend to assert claims on
behalf of his children. The Complaint identifies Plaintiff's
children as Plaintiffs. Compl. at p. 2. The children have not
signed the Complaint. While a litigant in federal court has the
right to act as her own counsel, “[a] person who has not been
admitted to the practice of law may not represent anybody
other than [her]self.” Guest v. Hansen, 603 F.3d 15, 20 (2d
Cir. 2010) (citation omitted). This rule extends to parents: “a
parent not admitted to the bar cannot bring an action pro se in
federal court on behalf of his or her child.” Tindall v. Pultney
High School Dist., 414 F.3d 281, 284-85 (2d Cir. 2005). 2 As
a result, any claim brought on behalf of the children should
be dismissed. H.B. v. Brookdale Hosp., 2022 WL 17539117,
at *2 (E.D.N.Y. Dec. 8, 2022). 3
2 This is particularly true where as here “one parent is
attempting to bring suit on behalf of a child against
the other parent.” Mulready v. Mulready, 2007 WL
1791120, at *1 (D. Conn. June 16, 2007).
3 The sole factual allegation in the Complaint against
a State Trooper identified only as John Doe relates
to allegations of alleged assault against one of
Plaintiff's children. Compl. at ¶ 17. Since there is
no allegation that Doe violated Plaintiff's rights, it
is recommended that that claim be dismissed.
B. Judicial Immunity
Judge Charles Tailleur continues to preside over Family Court
proceedings involving Plaintiff and Defendants Samantha
Anna-Kay Cody and Derek Cody. All claims against Judge
Tailleur arise out of actions taken in his judicial capacity. At
a March 24, 2025 appearance, Judge Tailleur took testimony
from the parties and issued a temporary order of protection
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against Plaintiff. Compl. at ¶¶ 22 & 29. At an April 7,
2025 appearance, Judge Tailleur extended the temporary
order of protection and elicited more testimony from the
parties. Compl. at ¶ 29. Finally, at a May 5, 2025 appearance,
Judge Tailleur made several determinations on the issue of
custody, including with respect to a pick-up/drop-off location
and visitation, and further extended the temporary order of
protection. Compl. at ¶ 31. Plaintiff contends that Judge
Tailleur gave no legal justification for his rulings on custody
or visitation, or his extensions to the temporary order of
protection.
Judicial immunity is applicable to conduct taken by the court
as part of its judicial power and authority, and its absolute
protection extends to all judicial acts except those performed
in the clear absence of all jurisdiction. See Pierson v. Ray, 386
U.S. 547, 554 (1967). The Supreme Court has emphasized
that the scope of a judge's jurisdiction must be construed
broadly. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)
(citing Bradley v. Fisher, 80 U.S. 335, 336 (1871)). Generally,
“acts arising out of, or related to, individual cases before [a]
judge are considered judicial in nature.” Bliven v. Hunt, 579
F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith
or malice cannot overcome judicial immunity.” Id. at 209.
This is because “[w]ithout insulation from liability, judges
would be subject to harassment and intimidation.” Young v.
Selsky, 41 F.3d 47, 51 (2d Cir. 1994).
“Judicial immunity is overcome in only two circumstances:
(1) a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge's judicial capacity;
and (2) a judge is not immune for actions, though judicial
in nature, taken in the complete absence of all jurisdiction.”
McCluskey v. Roberts, 2022 WL 2046079, at *5 (2d Cir.
June 7, 2022) (internal quotation omitted). Acts related to a
specific case, such as the orders of protection and support
determinations at issue here, are clearly judicial in nature.
Bliven v. Hunt, 579 F.3d at 210. And “[j]udicial immunity
applies to these judicial acts even if they were allegedly
done maliciously or corruptly.” McCluskey v. Roberts, 2022
WL 2046079, at *5. For these reasons, no exception to the
immunity doctrine applies and claims against Judge Tailleur
should be dismissed.
*4 Defendant Richards is identified as a New York
Support Magistrate. Compl. at ¶ 10. Plaintiff's claims
against Defendant Richards concern her role in child support
determinations made on June 4, 2025. Plaintiff contests
Richards's assessment that Plaintiff owes $27,000 in child
support to Samantha Cody and claims the sum was discharged
as a result the divorce agreement he entered with his ex-wife
in 2010. He further takes issue with Richards's demands to
appear at a July 18, 2025 hearing with copies of certain court
records so that Judge Tailleur can properly adjudicate his case.
These actions are also within the scope of judicial immunity
as they are an extension of the Court's custodial proceedings.
See Gerken v. Gordon, 2024 WL 4608307, at *8 (N.D.N.Y.
Oct. 29, 2024) (child support magistrate found immune from
suit under doctrine of judicial immunity); Clay v. Bishop,
2023 WL 3352903, at *4 (N.D.N.Y. Feb. 7, 2023), report and
recommendation adopted, 2023 WL 2910545 (N.D.N.Y. Apr.
12, 2023). Thus, claims against Defendant Richards must also
be dismissed.
The vast breadth of judicial immunity also protects judicial
staff. See Rodriguez v. Weprin, 116 F.3d 62, 66-67 (2d Cir.
1997) (“A court's inherent power to control its docket is part
of its function of resolving disputes between parties. This
is a function for which judges and their supporting staff are
afforded absolute immunity.”). “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.” Kellier v. Ross,
2022 WL 1292290, at *4 (S.D.N.Y. Apr. 29, 2022) (internal
quotation omitted) (citing Cleavinger v. Saxner, 474 U.S. 193,
200 (1985) and Rodriguez v. Weprin, 116 F.3d at 66). “Court
clerks have absolute immunity from civil liability based on
actions they take in helping process cases, even if such actions
are ‘ministerial’ or ‘administrative.’ ” Foy v. New York State
Unified Ct. Sys., 740 F. Supp. 3d 136, 150 (E.D.N.Y. 2024)
(quoting Rodriguez v. Weprin, 116 F.3d at 66-67). As to
Defendant Paula Wright, Plaintiff complains of a hearing for a
temporary order of protection of which he was not informed.
Compl. at ¶ 28-i. This is the only allegation against Wright
and, because of it is in relation to docketing, scheduling, and
court proceedings, it clearly falls within that immunity. Foy
v. New York State Unified Ct. Sys., 740 F. Supp. 3d at 150;
Goldberg v. Roth, 2001 WL 1622201, at *4 (S.D.N.Y. Dec.
17, 2001). 4
4 The Complaint also names Shara Berg
as a Defendant. It appears that Berg
is the Chief Clerk of Columbia
County Family Court. https://ww2.nycourts.gov/
courts/3jd/columbia/3JD-Columbia%20Multi
%20Courts.shtml. The Court takes judicial notice
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of that fact. Serrano v. DiPerna, 2024 WL
5247710, at *2 (W.D.N.Y. Dec. 30, 2024).
Any claim made regarding Berg's handling of
proceedings in state court are likewise covered by
this judicial immunity doctrine.
Accordingly, claims against Defendants Wright and Berg
must also be dismissed.
C. State Action
“Because the United States Constitution regulates only the
Government, not private parties, a litigant claiming that his
constitutional rights have been violated must first establish
that the challenged conduct constitutes state action.” Flagg v.
Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005)
(internal quotation marks omitted). “A plaintiff pressing a
claim of violation of his constitutional rights under § 1983 is
thus required to show state action.” Tancredi v. Metro. Life Ins.
Co., 316 F.3d 308, 312 (2d Cir. 2003). “State action requires
both the exercise of some right or privilege created by the
State and the involvement of a person who may fairly be said
to be a state actor.” Meadows v. United Servs., Inc., 963 F.3d
240, 243 (2d Cir. 2020) (quoting Flagg v. Yonkers Sav. & Loan
Ass'n, FA, 396 F.3d at 186) (internal quotations and alterations
omitted).
*5 The role of counsel appointed to represent Plaintiff and
Defendant Anna-Kay Cody in state court litigation does not
render them state actors. See, e.g., Alexander v. Murphy, 2018
WL 3232349, at *5 (N.D.N.Y. July 2, 2018), report and
recommendation adopted, 2018 WL 6000145 (N.D.N.Y. Nov.
14, 2018) (private attorney not a state actor); Harrison v. New
York, 95 F. Supp. 3d 293, 328 (E.D.N.Y. 2015) (citing cases).
The same is true for counsel appointed to act as law guardians
for the children. Parent v. New York, 786 F. Supp. 2d 516,
538 (N.D.N.Y. 2011), aff'd, 485 F. App'x 500 (2d Cir. 2012)
(“although 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.”).
The Complaint also names Samantha Anna-Kay Cody and
Derek Cody as Defendants with respect to section 1983
claims. Compl. at pp. 2 & 15. “Private parties are generally
not amenable to suit under § 1983, because they are not state
actors.” Bhatia v. Yale Sch. of Med., 347 F. App'x 663, 664
(2d Cir. 2009). The mere fact that they allegedly availed
themselves of the judicial system, Compl. at ¶¶ 11-12, does
not make them state actors. Sam & Mary Hous. Corp. v. New
York State, 632 F. Supp. 1448, 1450 (S.D.N.Y. 1986) (“one
does not become a state actor merely by being a litigant in a
state court action.”).
Accordingly, the Court recommends that the section 1983
claims against Defendants Samantha Cody, Derek Cody,
Gamalski, Smith, Zacker, and Gross be dismissed based on a
failure to allege state action.
D. Personal Involvement
Defendant Valerie Caruso is sued in her capacity as Director
of Columbia County Support Collections Unit. Compl. at ¶
16. Though named in the Complaint, there are little, if any,
specific factual allegations made against Defendant Caruso.
Liability under section 1983 action is appropriate only
if a defendant was personally involved in the alleged
constitutional violation. See Wright v. Smith, 31 F.3d 496, 501
(2d Cir. 1994); Collins v. Saratoga Cty. Support Collection
Unit, 2012 2571288, at *3 (N.D.N.Y. July 3, 2012). “[M]ere
‘bald assertions and conclusion of law’ do not suffice.”
Dorsey v. Fisher, 2010 WL 2008966, at *6 (N.D.N.Y. May 19,
2010) (quoting Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996)).
Here, the lack of factual allegations against this Defendant
warrant dismissal of claims against Caruso. Hendrickson v.
U.S. Atty. Gen., 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24,
1994), aff'd, 40 F.3d 1236 (2d Cir. 1994) (“To be sufficient
before the law, a complaint must state precisely who did what
and how such behavior is actionable under law.”).
E. Conversion Claim
The second cause of action in the Complaint is identified
as a conversion claim against Samantha and Derek Cody.
Compl. at p. 16. The allegations are brief and allege
only that Defendant Samantha Cody “defrauded” multiple
governmental agencies through perjury. Id.
“According to New York law, ‘conversion is the unauthorized
assumption and exercise of the right of ownership over goods
belonging to another to the exclusion of the owner's rights.’ ”
Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d
Cir.), certified question accepted, 7 N.Y.3d 837, 857 N.E.2d
528 (2006), and certified question answered, 8 N.Y.3d 283
(2007).
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Federal courts are courts of limited jurisdiction. Home Depot
U. S. A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).
Jurisdiction exists when the matter at issue arises “under the
Constitution, laws or treaties of the United States.” 28 U.S.C.
§ 1331. Jurisdiction also exists when diversity of citizenship
is present. 28 U.S.C. § 1332. Conversion is a “pure state law
claim[ ].” Greenidge v. Mundo Shipping Corp., 41 F. Supp.
2d 354, 358 (E.D.N.Y. 1999). As a result, no federal “arising
under” jurisdiction exists for such a claim.
*6 “Diversity jurisdiction exists where the parties are
citizens of different states and the amount in controversy
exceeds $75,000.” Ceglia v. Zuckerberg, 772 F. Supp. 2d
453, 455 (W.D.N.Y. 2011). “A case falls within the federal
district court's original diversity jurisdiction only if diversity
of citizenship among the parties is complete, i.e., only if there
is no plaintiff and no defendant who are citizens of the same
State.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381,
388 (1998) (internal quotations omitted). Complete diversity
is required – meaning if any Defendant is a resident of the
same state as the Plaintiff, diversity jurisdiction does not exist.
Seemann v. Maxwell, 178 F.R.D. 23, 24 (N.D.N.Y. 1998). The
Complaint specifically alleges that both Plaintiff and the Cody
Defendants are residents of New York. Compl. at p. 2. As a
result, there is also no diversity jurisdiction in this case and no
independent jurisdictional basis for entertaining these claims.
A district court may decline to exercise supplemental
jurisdiction over state law claims when it “has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). Generally, “when the federal-law claims have
dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline the
exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988). Having recommended dismissal
of the federal claims over which the Court has original
jurisdiction, the Court also recommends that the District
Court decline to exercise its supplemental jurisdiction over
any state law claims Plaintiff may be asserting.
F. Municipal Defendants
The third cause of action in the Complaint names Columbia
County and Greene County as Defendants. Compl. at p. 16.
Claims against these Defendants should be dismissed.
In Monell v. Dep't of Soc. Servs. of the City of N.Y., 436
U.S. 658, 691 (1978), the Supreme Court found that “the
language of § 1983, read against the background of the ...
legislative history, compels the conclusion that Congress
did not intend municipalities to be held liable unless action
pursuant to official municipal policy of some nature caused
a constitutional tort.” Courts apply “rigorous standards of
culpability and causation” to ensure that the municipality is
not held liable solely for the actions of its employees. Jeffes
v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000) (quoting Bd. of the
Cnty. Comm'rs v. Brown, 520 U.S. 397, 405 (1997)). Thus, in
order for an individual whose constitutional rights have been
violated to have recourse against a municipality under § 1983,
he must show that he was harmed by a municipal “policy” or
“custom.” Monell v. Dep't of Soc. Servs. of the City of N.Y.,
436 U.S. at 690-91. A “policy” or “custom” cannot be shown
by pointing to a single instance of unconstitutional conduct
by a mere employee of the State. See Oklahoma City v. Tuttle,
471 U.S. 808, 831 (1985) (Brennan, J., concurring in part
and concurring in the judgment) (“To infer the existence of
a city policy from the isolated misconduct of a single, low-
level officer, and then to hold the city liable on the basis of
that policy, would amount to permitting precisely the theory
of strict respondeat superior liability rejected in Monell”).
Here, however, the Complaint identifies no unconstitutional
policy on the part of either municipal Defendant. That
omission is fatal, at this juncture, to Plaintiff's Complaint.
Arnold v. Town of Camillus, New York, 662 F. Supp. 3d 245,
259 (N.D.N.Y. 2023) (“Plaintiff has not identified any formal
town policy that has deprived [him] of equal protection.”);
Beckwith v. City of Syracuse, 642 F. Supp. 3d 283, 293
(N.D.N.Y. 2022) (dismissal required when complaint “does
not allege the existence of any policy, practice, or custom from
which [plaintiff's] alleged constitutional violation resulted.”).
*7 Claims against the municipal entities, therefore, should
be dismissed.
G. Leave to Amend
“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.’ ” Bruce v. Tompkins Cnty.
Dep't of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4
(N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d
698, 704-05 (2d Cir. 1991)). “However, where the grounds for
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dismissal offer no basis for curing the defects in the pleading,
dismissal with prejudice is appropriate.” Norwood v. Albany
City Police Dep't, 2019 WL 7593292, at *2 (N.D.N.Y. Aug.
12, 2019), report and recommendation adopted, 2019 WL
5415873 (N.D.N.Y. Oct. 23, 2019). Here, for the reasons set
forth above, Plaintiff's allegations that are barred by judicial
immunity should be dismissed without leave to amend since
no additional pleading could undue that immunity. Since the
law is clear that the attorneys assigned to represent parties
to state court litigation are not state actors, those claims too
should be dismissed without leave to amend. Plaintiff could,
perhaps, make factual allegations to establish a claim against
the remaining Defendants and so those claims should be
dismissed with leave to amend.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be
DISMISSED as set forth above; and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 5 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. 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. 72 & 6(a).
5 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the 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).
All Citations
Slip Copy, 2025 WL 2722411
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Gammons v. Cody, Slip Copy (2025)
2025 WL 2719776
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2719776
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Shawn Taylor GAMMONS, Plaintiff,
v.
Samantha Anna-Kay CODY et al., Defendants.
1:25-CV-941 (AJB/DJS)
|
Signed September 24, 2025
Attorneys and Law Firms
SHAWN TAYLOR GAMMONS, Plaintiff, Pro Se, 85 Hunter
Avenue, Albany, NY 12206.
ORDER ON REPORT & RECOMMENDATION
Anthony J. Brindisi, United States District Judge:
*1 On July 17, 2025, pro se plaintiff Shawn Taylor
Gammons (“plaintiff”) filed this 42 U.S.C. § 1983 action,
purportedly on behalf of himself and his two minor children,
against their mother and others involved in an ongoing
custody proceeding in Greene County Family Court. Dkt. No.
1. Along with his complaint, plaintiff moved for leave to
proceed in forma pauperis (“IFP Application”). Dkt. No. 2.
On September 2, 2025, U.S. Magistrate Judge Daniel
J. Stewart granted plaintiff's IFP Application, Dkt. No.
2, and, after conducting an initial review of plaintiff's
pleading, advised by Report & Recommendation (“R&R”)
that plaintiff's complaint be dismissed with partial leave to
amend. Dkt. No. 5.
First, Judge Stewart explained that plaintiff, as a non-lawyer,
could not assert claims on behalf of his minor children in
federal court. Dkt. No. 5. Second, Judge Stewart determined
that any claims against judicial officers or staff, including
defendants Tailleur, Richards, Wright, and Berg, must be
dismissed because they were immune from suit under §
1983. Id. Third, Judge Stewart concluded that several of
the remaining defendants were not state actors and therefore
could not be sued under § 1983. Id. Fourth, as for defendant
Caruso and defendants Columbia and Greene Counties, Judge
Stewart found that plaintiff's complaint did not plausibly
allege a § 1983 claim against these defendants. Id. Fifth,
because plaintiff's federal claims were being dismissed, Judge
Stewart recommended that jurisdiction over the state-law
claims should be declined. Id. Sixth, and finally, Judge
Stewart advised that plaintiff should be given partial leave
to amend his complaint against the non-judicial and non-
attorney actors. Id. at 16.
Plaintiff has lodged objections. Dkt. No. 6. There, plaintiff
indicates that he would like to abandon his claims related to
domestic relations law issues, but requests discovery into a
long history of “court orders, records, and transcripts” that
might establish that one or more of the judicial defendants are
not, in fact, immune from suit. See id.
Upon de novo review, the R&R will be accepted and adopted.
See 28 U.S.C. § 636(b). The requests identified in plaintiff's
objections—including a possible stay for time to “gather all
evidence possible”—are not bases on which to modify the
R&R. As plaintiff acknowledges, it is usually inappropriate
to seek relief in federal court on “domestic relations” matters.
Indeed, the so-called “domestic relations exception” will
often apply to deprive federal courts of the ability to hear
matters that bear on those topics. See, e.g., Ankenbrandt v.
Richards, 504 U.S. 689, 704 (1992). Even so, and as Judge
Stewart found, it is possible that plaintiff could plausibly
allege a claim against one or more of the non-judicial, non-
attorney defendants. Accordingly, plaintiff's complaint will be
dismissed with partial leave to amend.
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 5) is
ACCEPTED;
2. Plaintiff's complaint (Dkt. No. 1) is DISMISSED with
partial leave to amend;
*2 3. Plaintiff's § 1983 claims against defendants Tailleur,
Richards, Wright, Berg, Gamalski, Smith, Zacker, and Gross
are DISMISSED without leave to amend;
4. Plaintiff's remaining claims are DISMISSED without
prejudice;
5. Plaintiff shall have THIRTY DAYS from the date of this
decision in which to file an amended complaint that conforms
with the guidance in Judge Stewart's R&R and this Order;
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6. If plaintiff timely files an amended complaint, the matter
shall be returned to Judge Stewart for further action as
appropriate; and
7. If plaintiff does not timely file an amended complaint, the
Clerk of the Court is directed to enter a judgment dismissing
this action and close the file without further Order of the
Court.
The Clerk of the Court is directed to terminate the pending
motion and set deadlines accordingly.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2719776
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:26-cv-00402-ECC-CBF Document 7 Filed 04/30/26 Page 45 of 52

Johnson v. City of New York, Not Reported in Fed. Rptr. (2023)
2023 WL 3607219
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 3607219
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Vandyke JOHNSON, Plaintiff-Appellant,
v.
CITY OF NEW YORK, N.Y.P.D. Officer Randazzo,
Badge No. 959119, N.Y.P.D. Officer Hotoniel Diaz,
John Doe #1, John Doe #2, Racheal Garcia, Wandaly
Torres, Diana Alama, CPS Worker, David A. Hansell,
Commissioner Administration for Children's Services,
Jane Doe, CPS Worker, Bronx Care Health System,
Sheena Blaise, CPS Worker, Defendants-Appellees.
22-2096
|
May 24, 2023
Appeal from a judgment of the United States District Court
for the Southern District of New York (George B. Daniels,
Judge; Barbara Moses, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Vandyke Johnson, pro se,
New York, NY.
FOR CITY DEFENDANTS-APPELLEES: Lorenzo Di
Silvio (Tahirih M. Sadrieh, on the brief), for Hon. Sylvia O.
Hinds-Radix, Corporation Counsel of the City of New York,
New York, NY.
FOR DEFENDANT-APPELLEE BRONX CARE: Judy C.
Selmeci (Wilson Elser Moskowitz, on the brief), Edelman &
Dicker LLP, New York, NY.
PRESENT: GUIDO CALABRESI, EUNICE C. LEE,
ALISON J. NATHAN, Circuit Judges.
SUMMARY ORDER
*1 Appellant Vandyke Johnson, proceeding pro se,
challenges the district court's dismissal of, inter alia,
malicious prosecution and false arrest claims brought
pursuant to 42 U.S.C. § 1983. Johnson also appeals
the dismissal of his § 1983 claims against Bronx Care
Health System (“Bronx Care”), which he brought on the
contention that doctors examined his children over his
objections and thereby violated both his and his children's
constitutional rights. We assume the parties’ familiarity with
the proceedings, which we discuss only as necessary to
resolve this appeal.
In August 2019, Johnson was arrested after his stepdaughter
filed a police report alleging physical violence by Johnson.
Johnson was arraigned on charges including third-degree
assault and endangering the welfare of a child, and a criminal
court order of protection was issued prohibiting Johnson
from contacting his stepdaughter. Shortly afterwards, based
on these accusations, a neglect petition was filed in Family
Court, and a separate Family Court order of protection issued
against Johnson. The Family Court order of protection was
reissued on November 14, 2019, and was valid through
February 24, 2020. Johnson contends that the criminal
court order of protection expired when his criminal case
was dismissed on November 25, 2019, after which he was
informed by his attorneys that there was no longer an active
order of protection against him; the attorneys were incorrect,
however, as the Family Court order remained in effect.
Johnson was arrested twice for violating the Family Court
order of protection. The first arrest occurred on November 25,
2019, only a few hours after his criminal case was dismissed,
when he was arrested at home for violating the order of
protection. Johnson claimed that the police were shown,
and relied on, the Family Court order of protection, which
Johnson has variously claimed he was not aware of or that it
expired November 14, 2019. Johnson was arrested the second
time for violating the Family Court order of protection on
February 12, 2020, after attempting to pick up his youngest
child at school. Eventually, all the charges stemming from the
various arrests were dismissed, and the neglect petition filed
in Family Court was withdrawn.
As to the claims against Bronx Care, Johnson contends that,
following the arrest of his wife for child neglect on February
7, 2020, his children were taken to Bronx Care and, without
Johnson's permission and over his objections, were examined
by hospital staff in what Johnson describes as an invasive
manner.
Johnson sued the City of New York, the Commissioner of
the New York City Administration for Children's Services
(“ACS”), ACS employees, and individual police officers (the
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“City defendants”) for, as relevant here, false arrest and
malicious prosecution under 42 U.S.C. § 1983. Johnson also
sued Bronx Care for violating his and his minor children's
Fourth Amendment and due process rights. After permitting
three amendments to Johnson's original complaint, the district
court granted the defendants’ motions to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6). 1 Johnson appealed.
1 Johnson's state law claims were dismissed without
prejudice.
*2 As an initial matter, and despite Bronx Care's argument
to the contrary, this Court has jurisdiction to hear all parts of
this case. Bronx Care contends that Johnson's notice of appeal
was defective in part because it failed to identify the earlier,
nonfinal order dismissing Johnson's claims against Bronx
Care. However, Johnson's notice of appeal did identify the
district court's final order (doc. 97), which Johnson correctly
described as the decision dismissing the remaining defendants
and the case. So long as it identifies a final order or judgment,
a notice of appeal is limited to certain specified orders only
if the appellant “expressly stat[es]” that he intends for it
to be so limited. Fed. R. App. P. 3(c)(5)(A), (6). Because
Johnson's notice contained no express language limiting its
reach, we have appellate jurisdiction over nonfinal orders,
like the one pertaining to Bronx Care, that merged into and
became appealable upon entry of final judgment. See Gold v.
N.Y. Life Ins. Co., 730 F.3d 137, 144 (2d Cir. 2013).
This Court “review[s] the grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint
and drawing all reasonable inferences in the plaintiff's favor.”
Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir.
2013). 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) (internal
quotation marks and citation omitted).
On appeal, Johnson raises three arguments: (1) under
Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), he
had standing to bring claims against Bronx Care on behalf
of his children; (2) there was no probable cause to arrest
and prosecute him and thus that he stated both malicious
prosecution and false arrest claims; and (3) that the cases
against him terminated in his favor. We address each in turn.
Beginning with the claims against Bronx Care, Johnson is
correct that he retains a “constitutionally protected liberty
interest in the care, custody and management of [his]
children.” Tenenbaum, 193 F.3d at 593. But, as the district
court determined, it is a “well-established general rule in this
Circuit that a parent not admitted to the bar cannot bring an
action pro se in federal court on behalf of his or her child,”
with certain exceptions not relevant here. Tindall v. Poultney
High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005). Because
Johnson is not an attorney, he could not assert violations
of his children's constitutional rights against Bronx Care.
The district court properly dismissed these claims without
prejudice. See Berrios v. N.Y.C. House. Auth., 564 F.3d 130,
134 (2d Cir. 2009) (reasoning that court may not “make a
merits determination of claims filed on behalf of a minor or
incompetent person who is not properly represented”).
Johnson's claims that Bronx Care violated his own
constitutional due process rights are not sufficiently pleaded.
Johnson merely asserted that Bronx Care created an
unconstitutional policy of interviewing and examining
children without parental consent. But Johnson did not plead
any facts in support of this claim, and legal conclusions alone
do not suffice to state a valid constitutional claim. See Shara
v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82 (2d Cir.
2022).
Next, against the City defendants, Johnson alleged false arrest
and malicious prosecution, for both the criminal proceedings
against him as well as the neglect petition filed against him in
Family Court. We assume, without deciding, that a malicious
prosecution claim can be premised on a neglect petition.
“Probable cause is a complete defense to a constitutional
claim for false arrest,” and “continuing probable cause is a
complete defense” to a tort claim for malicious prosecution.
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). “Probable
cause exists when one has knowledge of, or reasonably
trustworthy information as to, facts and circumstances that
are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed by the
person to be arrested.” Id. (internal quotation marks omitted).
“The probable cause standard in the malicious prosecution
context is slightly higher than the standard for false arrest
cases” and requires “such facts and circumstances as would
lead a reasonably prudent person to believe the plaintiff
guilty.” Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013)
(internal quotation marks omitted). “[P]robable cause must be
shown as to each crime charged in the underlying criminal
action.” Kee v. City of New York, 12 F.4th 150, 166 (2d Cir.
2021).
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*3 Johnson argues that his November 2019 and February
2020 arrests were unsupported by probable cause, but we
do not agree. 2 Johnson claimed that the November 2019
arrest was unsupported by probable cause because the police
relied on either an order of protection he had never received
or on an expired version of the Family Court order. There
is no dispute, however, that the Family Court order was
actually in effect and an arrest premised on it would be
valid even if the officers were shown an older, expired copy
of the order at some point prior to the arrest. See Panetta
v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“Probable
cause requires an officer to have knowledge or reasonably
trustworthy information sufficient to warrant a person of
reasonable caution in the belief that an offense has been
committed by the person to be arrested.... [P]robable cause
does not require absolute certainty.” (internal quotation marks
and citations omitted)). Moreover, the ACS employee's report
to the police of Johnson's violation of the order of protection
could support a valid determination of probable cause so long
as there was no reason to doubt her veracity. See id. Regarding
the February 2020 arrest, he claimed that school officials
falsely reported to police that he was in violation of the Family
Court order of protection. Again, however, Johnson did not
dispute that the Family Court order was still in effect, and the
reports of the school officials, even if later determined to be
false, could support a valid determination of probable cause
so long as there was no reason to doubt the officials’ veracity.
See id.
2 To the extent Johnson now argues that the officers
lacked probable cause for the initial August 2019
arrest, the allegations as pleaded fail to make out a
lack of probable cause. According to Johnson's own
complaint, his stepdaughter filed a police report
alleging Johnson physically harmed her. This was
sufficient to support the arrest. See Curley v. Village
of Suffern, 268 F.3d 65, 70 (2d Cir. 2001).
Claims for malicious prosecution require a plaintiff to allege,
on top of lack of probable cause, “that the proceeding was
instituted with malice.” Mitchell v. City of New York, 841
F.3d 72, 79 (2d Cir. 2016) (internal quotation marks omitted).
Johnson has not pleaded that any of the defendants acted with
malice when instituting the criminal or neglect proceedings.
Thus, the district court correctly dismissed Johnson's § 1983
malicious prosecution claims. Because Johnson failed to
plead two necessary elements for the malicious prosecution
claim—actual malice and lack of probable cause—we need
not reach his arguments regarding favorable termination.
We have considered Johnson's remaining arguments and find
them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
All Citations
Not Reported in Fed. Rptr., 2023 WL 3607219
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Rogers v. CPS, Not Reported in Fed. Supp. (2020)
2020 WL 2059824
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 2059824
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Megan ROGERS, Plaintiff,
v.
CPS, et al., Defendants.
5:20-CV-0075 (LEK/ATB)
|
Signed 04/29/2020
Attorneys and Law Firms
Megan Rogers, Syracuse, NY, pro se.
DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
I. INTRODUCTION
*1 Pro se plaintiff Megan Rogers has brought this civil
rights action in forma pauperis (“IFP”) against “CPS” 1 of
Onandaga County (the “County”), Andrea Levandowski, who
is an employee of CPS, and “Social Worker, Dep't of State.”
Dkt. Nos. 1 (“Complaint”) at 1; 2 (“IFP Application”). On
February 6, 2020, the Honorable Andrew T. Baxter, United
States Magistrate Judge, reviewed the Complaint under 28
U.S.C. § 1915(e)(2)(B) and issued a report-recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt
No. 5 (“Report-Recommendation”). Finding that amendment
would be futile since Plaintiff's Complaint is a “frivolous”
“jumble of thoughts that fail to make any sense,” he
recommended that the Court dismiss the Complaint with
prejudice. R. & R. at 11.
1 The Court construes “CPS” to refer to “Child
Protective Services,” a county agency.
On February 18, 2020, Plaintiff filed objections to the Report-
Recommendation. Dkt. No. 6 (“Objections”).
For the reasons that follow, the Court adopts the Report-
Recommendation in part and modifies it in part.
II. STANDARDS OF REVIEW
A. Report-Recommendation
Within fourteen days after a party has been served with
a copy of a magistrate judge's report-recommendation, the
party “may serve and file specific, written objections to the
proposed findings and recommendations.” Fed. R. Civ. P.
72(b); L.R. 72.1(c). If objections are timely filed, a court
“shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b). However, if no
objections are made, or if an objection is general, conclusory,
perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect
of a report-recommendation only for clear error. Barnes v.
Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y.
Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07
(N.D.N.Y. 2008), abrogated on other grounds by Widomski v.
State Univ. of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014). “A
[district] judge ... may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” § 636(b).
B. Section 1915(e)(2)(B)
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.” § 1915(e)(2)(B). 2 Thus, even if a plaintiff meets the
financial criteria to commence an action IFP, it is the court's
responsibility to determine whether the plaintiff may properly
maintain a complaint. See id.
2 An action is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989).
A court may not dismiss a complaint if the plaintiff has alleged
“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) (citing Twombly, 550 U.S. at 556). Although 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,
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Rogers v. CPS, Not Reported in Fed. Supp. (2020)
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550 U.S. at 555). “[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.’ ” Id. at
679 (quoting Fed. R. Civ. P. 8(a)(2)). Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(citing Twombly, 550 U.S. at 555). Hence, a pleading that
only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).
*2 The Court must construe pro se complaints liberally,
see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per
curiam), and should exercise “extreme caution ... in ordering
sua sponte dismissal of a pro se complaint before the adverse
party has been served and both parties (but particularly the
plaintiff) have had an opportunity to respond.” Anderson
v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in
original) (internal citations omitted).
III. DISCUSSION
Plaintiff's Objections make no direct argument about Judge
Baxter's findings and instead provides an assortment of
random statements. Objs. at 1–3. For instance, Plaintiff
asserts that “Queen Elizabeth wants to cut her head off,”
a “bottle of baby powder was thrown in [Plaintiff's] yard,”
and some unidentified individuals found “a barn w[ith]
bones” after conducting a search warrant. Id. Thus, the Court
reviews the Report-Recommendation for clear error. See
Rogers v. Clinton, No. 19-CV-175, 2019 WL 3454099, at
*1 (N.D.N.Y. July 31, 2019) (Kahn, J.) (observing that clear
error review is warranted when the objections do not directly
address the magistrate judge's findings), appeal dismissed by
No. 19-2632, 2019 WL 6218814 (2d Cir. Oct. 30, 2019).
While it finds none, the Court will modify Judge Baxter's
recommendation that the Court dismiss Plaintiff's Complaint
with prejudice.
Giving Plaintiff's Complaint an extremely liberal
interpretation, which the Court may do since Plaintiff is
litigating this action pro se, see Guan v. New York State Dep't
of Envtl. Conservation, No. 16-CV-2180, 2019 WL 1284260,
at *4 (E.D.N.Y. Mar. 20, 2019), Plaintiff claims that CPS
and Levandowski violated her constitutional rights under 42
U.S.C. § 1983. 3 4
3 As the Magistrate Judge observed, “There is no
such person as ‘Social Worker, Dep't of State,’ and
thus, the [C]ourt will focus on CPS and Andrea
Levandowski as defendants.” See R. &. R. at 8.
4 “42 U.S.C. § 1983 provides a civil claim for
damages against any person who, acting under
color of state law, deprives another of a right,
privilege or immunity secured by the Constitution
or the laws of the United States.” Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999). Section 1983
does not create any substantive rights; it provides
civil litigants a procedure to redress the deprivation
of rights established elsewhere. Id. (citing City
of Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985)). “To prevail on a § 1983 claim, a plaintiff
must establish that a person acting under the color
of state law deprived h[er] of a federal right.” Id.
Even though, as Judge Baxter found, Plaintiff's Complaint
does not include allegations, let alone plausible ones, which
suggest CPS or Levandowski deprived Plaintiff of any
constitutional rights, R. & R. at 8–11, the Court observes that
Plaintiff included allegations in her objections suggesting that
CPS and Levandowski caused Plaintiff to lose custody of her
children in violation of Plaintiff's due-process rights. First,
Plaintiff alleges that CPS and Levandowski took her children
from her because they found Plaintiff “conceited, arrogant,
[and] argumentative.” Objs. at 2. She also avers they took her
children despite the fact that Plaintiff “work[ed] [her] ... ass
off,” attended “[four] programs a week in order to document
[she] was a responsible parent,” “passed drug testing,” and
passed a mental health evaluation. Id. at 1.
*3 “Although the Court need not consider new
allegations raised in [Plaintiff's] objections to [the Report-
Recommendation],” see Sanders v. Long Island Newsday,
No. 09-CV-2393, 2010 WL 3419659, at *3 n.2 (E.D.N.Y.
Aug. 27, 2010) (citations omitted), the Court will analyze
whether Plaintiff has plausibly pled due-process claims
against CPS and Levandowski.
As an initial matter, Plaintiff cannot sue CPS because it
is an administrative arm of Onandaga County. See Davis
v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477
(E.D.N.Y. 2002) (“[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.”); Lukes v. Nassau Cnty.
Jail, No. 12-CV-1139, 2012 WL 1965663, at *2 (E.D.N.Y.
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Rogers v. CPS, Not Reported in Fed. Supp. (2020)
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May 29, 2012) (dismissing claims against Nassau County
Jail because it “is an administrative arm of Nassau County,
without a legal identity separate and apart from the County”).
Nevertheless, in deference to Plaintiff's pro se status, the
Court considers whether Plaintiff has stated constitutional
claims against the County, who is the real party in interest.
See Solis v. Cnty. of Westchester, No. 94-CV-5102, 1995
WL 14072, at *1 (S.D.N.Y. Jan. 10, 1995) (noting that a
county agency is not a suable entity and that the county is
the real party in interest); N.Y. County Law § 51 (“Actions
or proceedings by or against a county shall be in the name of
the county.”).
It is well-established that a municipality 5 may not be held
liable under § 1983 on the basis of respondeat superior.
Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S.
658, 690–91 (1978). Rather, municipalities are responsible
only for “their own illegal acts.” Pembaur v. Cincinnati,
475 U.S. 469, 479 (1986). In order to sustain a § 1983
claim for municipal liability, a plaintiff must show that
he suffered a constitutional violation and that the violation
resulted from an identified municipal policy or custom.
Monell, 436 U.S. at 694–95. A municipal policy or custom
may be established where the facts show: (1) a formal
policy, officially promulgated by the municipality, id. at 690;
(2) an action taken by an official who is responsible for
establishing municipal policies with respect to the subject
matter in question, Pembaur, 475 U.S. at 483–84; (3) an
unlawful practice by subordinate officials so permanent and
widespread as to practically have the force of law, City of
St. Louis v. Praprotnik, 485 U.S. 112, 127–30 (1985); or (4)
a failure to train, supervise, or discipline that amounts to
“deliberate indifference” to the rights of those with whom
the municipality's employees interact, City of Canton, Ohio
v. Harris, 489 U.S. 378, 388 (1989).
5 The principles of municipal liability also apply to
counties. Holmes v. Cty. of Montgomery, No. 19-
CV-617, 2020 WL 1188026, at *6 n.5 (N.D.N.Y.
Mar. 12, 2020) (Kahn, J.) (citing Hill v. Cty. of
Montgomery, No. 14-CV-933, 2019 WL 5842822,
at *17 (N.D.N.Y. Nov. 7, 2019)).
As to Plaintiff's potential claim against Levandowski, it
is well-settled that “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) (quoting Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). “[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). “[V]icarious liability
is inapplicable to ...§ 1983 suits.” Iqbal, 556 U.S. at 676.
*4 Taken together, Plaintiff's allegations in the Complaint
and her Objections are insufficient to suggest that
the County had some policy or custom that violated
Plaintiff's due-process rights. Nor are they sufficient to
suggest that Levandowski was personally involved in any
deprivation of Plaintiff's due-process rights. Consequently,
the Court concludes Plaintiff has not plausibly pled
these defendants violated her rights. Nevertheless, because
Plaintiff's objections contain new allegations not found in
the original Complaint, the Court will provide Plaintiff with
an opportunity to file an amended complaint. See Sanders,
2010 WL 3419659, at *3 n.2 (allowing a pro se plaintiff to
replead claims that the magistrate judge concluded should
be dismissed with prejudice because the plaintiff made new
allegations supporting those claims in his objections to the
magistrate judge's a report-recommendation).
If Plaintiff wishes to amend her Complaint, she must file an
amended complaint that complies with Federal Rule of Civil
Procedure Rule 15. Any amended complaint, which shall
supersede and replace the original Complaint in its entirety,
must allege claims of misconduct or wrongdoing against each
named defendant that Plaintiff has a legal right to pursue
and over which this Court may properly exercise jurisdiction.
Any amended complaint must also be signed by Plaintiff and
comply with the pleading requirements of Rules 8 and 10 of
the Federal Rules of Civil Procedure.
IV. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No.
5) is MODIFIED to the extent that it recommends
dismissal of Plaintiff's claims with prejudice. The
Report-Recommendation is otherwise APPROVED and
ADOPTED; and it is further
ORDERED, that Plaintiff's § 1983 claim against CPS is
DISMISSED with prejudice as CPS is an entity not subject
to suit; and it is further
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Rogers v. CPS, Not Reported in Fed. Supp. (2020)
2020 WL 2059824
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
ORDERED, that Plaintiff's § 1983 claims against the County,
Levandowski, and “Social Worker, Dep't of State” are
DISMISSED without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) for failure to state a claim upon which relief
may be granted; and it is further
ORDERED, that CPS, the County, Levandowski, and
“Social Worker, Dep't of State” are TERMINATED as
defendants in this action; and it is further
ORDERED, that if Plaintiff wishes to proceed with this
action, she must file an amended complaint as directed above
within sixty days of filing date of this Decision and Order;
and it is further
ORDERED, that if Plaintiff timely files an amended
complaint, this matter be returned to the Court for further
review; and it is further
ORDERED, that if Plaintiff fails to timely file an amended
complaint as directed above, the Clerk shall enter judgment
without further order of this Court indicating that this action
is DISMISSED without prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) for failure to state a claim upon which relief
may be granted. In that event, the Clerk is directed to close
this case; and it is further
ORDERED, that all pleadings, motions, and other documents
relating to this action 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 Plaintiff to 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 that does not include a proper certificate of service
will be stricken from the docket. Plaintiff 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. All motions will be decided on submitted
papers without oral argument unless otherwise ordered by
the Court. Plaintiff is also required to promptly notify, in
writing, the Clerk's Office and all parties or their counsel
of any change in Plaintiff's address; her failure to do so
may result in the dismissal of this action; and it is further
*5 ORDERED, that the Clerk serve a copy of this Decision
and Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 2059824
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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