Jarvis v. Funny Bone Comedy Club et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HOLLY JARVIS,
Plaintiff,
-against- 	5:25-CV-645 (LEK/MJK)
FUNNY BONE COMEDY CLUB, et al.,
Defendant.
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
Plaintiff Holly Jarvis (“Plaintiff”) filed this action on May 21, 2025, alleging violations
of her due process rights under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983
(“Section 1983”), and various state law claims, including defamation, negligent infliction of
emotion distress (“NIED”), and intentional infliction of emotional distress (“IIED”). Dkt. No. 1
(“Complaint”).1 The Honorable Mitchell J. Katz, United States Magistrate Judge, issued a
Report-Recommendation and Order recommending that the Court dismiss Plaintiff’s Complaint.
Dkt. No. 5 (“Report and Recommendation”). Plaintiff has filed objections. Dkt. No. 7
(“Objections”).
For the reasons that follow, the Court adopts the Report and Recommendation in its
entirety.
1 This case is related to Jarvis v. City of Syracuse Police Department, et al., 25-CV-228
(LEK/MJK).
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II. 	BACKGROUND
The Court assumes familiarity with Judge Katz’s Report and Recommendation, as well as
Plaintiff’s factual allegations as detailed therein. See R. & R. at 4.
III. 	LEGAL STANDARD
“Rule 72 of the Federal Rules of Civil Procedure and Title 28 United States Code Section
636 govern the review of decisions rendered by Magistrate Judges.” A.V. by Versace, Inc. v.
Gianni Versace, S.p.A., 191 F. Supp. 2d 404, 405 (S.D.N.Y. 2002); see also 28 U.S.C. § 636;
Fed. R. Civ. P. 72. Review of decisions rendered by magistrate judges are also governed by the
Local Rules. See L.R. 72.1. 28 U.S.C. § 636 states:
Within fourteen days after being served with a copy [of the
Magistrate Judge’s report and recommendation], any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court
shall make a de novo determination of those portions of the report
or 	specified 	proposed 	findings 	or 	recommendations 	to 	which
objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1)(C). When written objections are filed and the district court conducts a de
novo review, that “de novo determination does not require the Court to conduct a new hearing;
rather, it mandates that the Court give fresh consideration to those issues to which specific
objections have been made.” A.V. by Versace, 191 F. Supp. 2d at 406 (emphasis in original).
“A proper objection must be specific.” Nambiar v. Cent. Orthopedic Grp., LLP, No. 24-
1103, 2025 WL 3007285, at *3 (2d Cir. Oct. 28, 2025). To be ‘specific,’ the objection must, with
particularity, ‘identify [1] the portions of the proposed findings, recommendations, or report to
which it has an objection and [2] the basis for the objection.’” Nutt v. New York, No. 12-CV-385,
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2012 WL 4006408, at *1 (N.D.N.Y. Sept. 12, 2012) (quoting N.D.N.Y. L.R. 72.1(c)). “The
district court may adopt those portions of a report and recommendation to which no timely
objections have been made, provided no clear error is apparent from the face of the record.”
DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). “When a party makes only
conclusory or general objections . . . the Court will review the [report and recommendation]
strictly for clear error.” N.Y.C. Dist. Councils. of Carpenters Pension Fund v. Forde, 341 F.
Supp. 3d 334, 336 (S.D.N.Y. 2018) (quoting Molefe v. KLM Royal Dutch Airlines, 602 F. Supp.
2d 485, 487 (S.D.N.Y. 2009)).
“The objections of parties appearing pro se are ‘generally accorded leniency’ and should
be construed ‘to raise the strongest arguments that they suggest.’” DiPilato, 662 F. Supp. 2d at
340 (emphasis in original) (quoting Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131, at
*24 (S.D.N.Y. Sept. 26, 2008)). “Nonetheless, even a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal such that no party be allowed a second bite at the apple by simply relitigating a prior
argument.” DiPilato, 662 F. Supp. 2d at 340 (quoting Pinkney v. Progressive Home Health
Servs., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008)).
IV. 	DISCUSSION
A. The Report and Recommendation
In his Report and Recommendation to this Court, Judge Katz recommended dismissing
Plaintiff’s Complaint because the Complaint lacks any facts which plausibly state a claim
invoking the Court’s jurisdiction. R. & R. at 4–6.
First, Judge Katz explained that while Plaintiff invokes the Court’s diversity jurisdiction,
“the [C]omplaint is devoid of any allegations concerning the citizenship of the remaining
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Defendants so that the Court can determine whether complete diversity of citizenship among the
parties exists.” Id. at 4–5.
Next, Judge Katz recommended dismissing Plaintiff’s Section 1983 claim as
“conclusory” because “Plaintiff does not plead any facts establishing that Defendants were acting
under the color of law, are individuals who the state is responsible for, or are individuals who
may fairly be called a state actor.” Id. at 5.
B. Plaintiff’s Objections
Plaintiff filed six objections to Judge Katz’s Report and Recommendation. Obj. 1–2.
Objections one through four are largely repetitions of arguments that Judge Katz dealt with in his
well-reasoned order. Compare R. & R. at 4–6 with Obj. at 1–2. However, mindful of the Second
Circuit’s recent decision in Nambiar, the Court will review objections one through four de novo.
Nambiar, No. 24-1103, 2025 WL 3007285, at *1 (2d Cir. Oct. 28, 2025) (requiring de novo
review for even rehashed arguments because “objection[s] not only may, but often must, repeat
arguments that were previously raised.”).
1. 	Objection 1
Plaintiff objects to the dismissal of her Section 1983 claim as “improper[]” because she
“specifically alleged that private actors conspired with or acted jointly with state actors –
including off-duty parole officers and Syracuse Police officers – to falsely accuse, detain, and
arrest her and her son.” Obj. at 1. “To state a claim under [Section] 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States.” West v. Atkins,
487 U.S. 42, 48 (1988). Additionally, a Plaintiff “must show that the alleged deprivation was
committed by a person acting under color of state law.” Id. “A defendant acts under color of state
law when [he exercises] some right or privilege created by the State . . . or by a person for whom
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the state is responsible, and is a person who may fairly be said to be a state actor.” See Sykes v.
McPhillips, 412 F.Supp.2d 197, 200 (N.D.N.Y. 2006) (internal quotations omitted) (citing
Nicholson v. Lenczewski, 356 F.Supp.2d 157, 162 (D. Conn. 2005)).
Here, Plaintiff’s Complaint fails to allege any facts that Defendants were acting under
color of law. Compl. at 3. Defendants, who work at a comedy club, see id. at 1, were not acting
under the state’s direction, control, or influence, or any other connection that could plausibly
suggest they were acting under color of law. Additionally, “acting jointly with public officials”
does not in and of itself create a cause of action under Section 1983. Id. at 3; see Carr v. Gerwitz,
No. 24-CV-1069, 2024 WL 4712526, at *3 (N.D.N.Y. Sept. 20, 2024), report and
recommendation adopted, No. 24-CV-1069, 2024 WL 4456969 (N.D.N.Y. Oct. 10, 2024)
(quoting Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002)) ("A merely
conclusory allegation that a private entity acted in concert with a state actor does not suffice to
state a § 1983 claim against the private entity."). Thus, this objection is dismissed.
2. 	Objection 2
Plaintiff further objects to dismissal because she “alleged that false reports were
knowingly submitted to police by Defendants and were relied upon by law enforcement without
any independent investigation, satisfying the joint action test under [Section] 1983.” Obj. at 1
“Private parties are . . . not generally liable under Section 1983.” Levine v. Project Renewal, No.
24-CV-616, 2024 WL 773722, at *5 (S.D.N.Y. Feb. 26, 2024) (citing Sykes v. Bank of Am., 723
F.3d 399, 406 (2d Cir. 2013); see also United States v. Int'l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am., AFL-CIO, 941 F.2d 1292, 1295 (2d Cir. 1991) (“[T]he United
States Constitution regulates only the Government, not private parties.”). Under Section 1983, a
private actor’s actions can be considered state action when:
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(1) the entity acts pursuant to the ‘coercive power’ of the state or is ‘controlled’ by the
state (“the compulsion test”); (2) when the state provides ‘significant encouragement’ to
the entity, the entity is a ‘willful participant in joint activity with the [s]tate,’ or the
entity's functions are ‘entwined’ with state policies (“the joint action test” or “close nexus
test”); or (3) when the entity ‘has been delegated a public function by the [s]tate’ (“the
public function test”).
Levine, 2024 WL 773722, at *5 (quoting Sybalski v. Indep. Grp. Home Living Program, Inc.,
546 F.3d 255, 257 (2d Cir. 2008)) (citations omitted). The Second Circuit has explained that in
order for a Plaintiff to sufficiently plead state involvement for the purposes of Section 1983, that
“the plaintiff must allege that the state was involved ‘with the activity that caused the injury’
giving rise to the action.” Sybalski, 546 F.3d at 257–58 (quoting Schlein v. Milford Hospital,
Inc., 561 F.2d 427, 428 (2d Cir.1977)).
Here, Plaintiff’s Complaint is devoid of any specific allegations of state involvement. See
generally Compl. The Complaint states generally that “Probation Officers . . . who were present,
collaborated with Defendants in perpetuating false narratives,” Compl. at 2, but this fails to state
with specificity how Plaintiff knew these were “Probation Officers,” or what these Probation
Officers did under color of law. Moreover, assuming arguendo that Defendants knowingly sent
false reports to the police, there are no allegations in the Complaint that the police acted on them
in a way that deprived Plaintiff of her constitutional rights. See generally Compl. Finally, “even
if that information is false or results in the officers taking affirmative action, [giving false
information to the police] is not sufficient to constitute joint action with state actors for purposes
of [Section] 1983.” Young v. Suffolk Cnty., 705 F. Supp. 2d 183, 196 (E.D.N.Y. 2010) (collecting
cases). Accordingly, this objection is dismissed.
3. 	Objection 3
Plaintiff’s next objection avers that Judge Katz “did not address Plaintiff's factual
allegations that the parole officers and Defendants worked together to initiate police
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involvement, leading to false charges, detainment, and a lifetime ban from Destiny USA, all of
which constitute significant deprivations under color of law.” Obj. at 1. First, the Court notes that
there are no allegations that Plaintiff was detained or falsely charged in her Complaint, and so
the Court will not consider this argument. Milner-Koonce v. Albany City Sch. Dist., No. 21-CV-
1271, 2023 WL 3748831, at *3 (N.D.N.Y. June 1, 2023 (“[O]bjections to a report-
recommendation are not an opportunity for a plaintiff to add new allegations to her complaint.”);
Nambiar, 2025 WL 3007285, at *3 (“A proper objection generally may not raise new arguments
not previously made before the magistrate judge.”). Second, Plaintiff’s objection here is
functionally the same as her previous objection – i.e., that private actors conspired with state
actors “under color of law” to deprive her of her rights. Obj. at 1. Therefore, for the same reasons
as previously discussed, see supra Part IV (B)(2), this objection is dismissed.
4. 	Objection 4
Plaintiff’s fourth objection to the Report & Recommendation is that she “submitted a
Freedom of Information Law (FOIL) request within one month of the incident to preserve video
surveillance evidence, which was denied. The R&R; did not consider this as part of the broader
due process violation and potential spoliation of evidence.” Obj at 2. Upon reviewing the
Complaint, Plaintiff makes no mention of a FOIL request, to whom the request was made, why
the Defendants in the instant action would have the information she seeks, or how at all this
constitutes a deprivation of her constitutional rights under Section 1983. See generally Compl.
Moreover, as Plaintiff is aware, “Federal courts do not have subject matter jurisdiction to enforce
state laws regarding public access to official records.” Jarvis v. Duell, No. 25-CV-843, 2025 WL
2467484, at *2 (N.D.N.Y. Aug. 26, 2025) (quoting In re Shelton, No. 06-CV- 6132, 2006 WL
3463425, at *2 (E.D.N.Y. Nov. 30, 2006)). “If an initial request is denied, the requester may
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appeal the denial first to the ‘head, chief executive or governing body’ of the entity or agency in
possession of the documents, and, thereafter, by commencing a special proceeding in New York
State courts under Article 78 of the New York Civil Practice Law and Rules.” Id. (citing N.Y.
Pub. Off. L. § 89(4)(a) and (b)). Therefore, this objection is also dismissed.
5. 	Plaintiff’s Remaining Objections
Plaintiff’s fifth and sixth objections do not address specific portions of the Report and
Recommendation. Rather they take issue with the amount of “leniency” Judge Katz took in
construing Plaintiff’s Complaint and aver that “dismissal at this early stage is premature.” See
Obj. at 2. However, as Plaintiff has not “object[ed] to [any] finding or recommendation on that
issue with sufficient specificity” the Court will review for clear error. Nambiar, 2025 WL
3007285, at *3. Having found none, the Court dismisses Plaintiff’s fifth and sixth objection.
V. 	CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No. 5, is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s complaint, Dkt. No. 1, is DISMISSED with leave to
amend; and it is further
ORDERED, that if Plaintiffs wish to proceed with this action, they must file an amended
complaint as set forth above within Forty-Five (45) days from the date of the filing of this
Memorandum-Decision and Order. If Plaintiffs timely file an amended complaint, this matter
shall be returned to the Court for further review; and it is further
ORDERED that, if Plaintiffs fail to timely file an amended complaint, the Clerk shall
dismiss this action and close this case without further order from the Court; and it is further
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ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED: 	December 17, 2025
Albany, New York
LAWRENCE E. KAHN
United States District Judge
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