Jarvis v. Duell et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HOLLY JARVIS,
Plaintiff,
-against- 	5:25-CV-843 (LEK/MJK)
DUELL et, et al.,
Defendant.
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
Plaintiff Holly Jarvis (“Plaintiff”) filed this action in forma pauperis on June 27, 2025,
alleging violations of her due process rights under the Fourth and Fourteenth Amendments
pursuant to 42 U.S.C. § 1983 (“Section 1983”). Dkt. No. 1, 2 (“IFP Application”).1 The
Honorable Mitchell J. Katz, United States Magistrate Judge, issued a Report-Recommendation
and Order recommending that the Court grants Plaintiff’s IFP Application and dismiss Plaintiff’s
Complaint. Dkt. No. 7. Plaintiff then filed an amended complaint, Dkt. No. 10 (“Amended
Complaint”), which this Court accepted as filed, Dkt. No. 12, and subsequently found Judge
Katz’s Report-Recommendation and Order was moot, id.
On October 16, 2025, Judge Katz issued a second Report-Recommendation and Order
based on the Amended Complaint. Dkt. No. 13 (“Report and Recommendation”). Plaintiff filed
objections. Dkt. No. 14 (“Objections”).
1 This case is related to Jarvis v. City of Syracuse Police Department, et al., 25-CV-228
(LEK/MJK) and Jarvis v. Funny Bone Comedy Club, et al., 25-CV-645 (LEK/MJK).
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For the reasons that follow, the Court adopts the Report and Recommendation in its
entirety.
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 2–3.
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). “A plaintiff is deemed to have [forfeited]
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an objection to a magistrate judge's report if he does not present his claims to the district court. In
order to preserve for appeal an issue in a magistrate judge's report, a party must object to the
finding or recommendation on that issue with sufficient specificity so as reasonably to alert the
district court of the true ground for the objection.” Martin v. Duffy, 858 F.3d 239, 245 (4th Cir.
2017) (citation modified); see also Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120-21 (2d Cir.
2022). “Just as a complaint stating only ‘I complain’ states no claim, an objection stating only ‘I
object’ preserves no issue for review.” Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988).
“The point of making objections is to tell the district judge – who, under § 636(b)(1) must make
the final decision and enter judgment – what issues the parties actually dispute.” Id. “Merely
referring the court to previously filed papers or arguments does not constitute an adequate
objection.” Mario v. P & C Food Mkts., 313 F.3d 758, 766 (2d Cir. 2002).
“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
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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 Amended Complaint because it lacks any facts which plausibly state a claim invoking
the Court’s jurisdiction. See R. & R. at 4–15.
First, Judge Katz explained that Plaintiff: 1) “has not established that this Court has
subject matter jurisdiction over this case,” 2) “has not established that the District Court has
subject matter jurisdiction over her [Freedom of Information Law (FOIL)] claim,” and 3) she
“has not pleaded that Defendants are personally involved in the FOIL claim.” Id. at 8–9. Next,
Judge Katz recommended dismissing Plaintiff’s Section 1983 excessive force claim because
Plaintiff’s allegations “do[] not allege that Defendants caused the injury,” not do they articulate
“what level of force Defendants used.” Id. at 11. Further, Judge Katz recommended that
Plaintiff’s Fourth Amendment illegal search claim be dismissed because “Jarvis never alleges
that she was searched” and “has not plausibly pleaded an illegal search claim.” Id. at 12–13.
Finally, Judge Katz recommended dismissing Plaintiff’s First Amendment retaliation claim
because Plaintiff not explained: 1) how “she engaged in protected First Amendment activity,” 2)
how “Defendants actions chilled her speech,” or 3) whether “Defendants are government actors.”
Id. at 13–14. Judge Katz ultimately recommended this Court grant Plaintiff leave to amend on all
of her claims except her FOIL claim, “because no fact or set of facts will give the District Court
subject matter jurisdiction over [it].” Id. at 14–15.
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B. Plaintiff’s Objections
As best this Court can identify, Plaintiff has filed two objections to Judge Katz’s Report
and Recommendation. Obj. 1–2. While these objections evince specificity, they are largely
repetitions of arguments that Judge Katz dealt with in his well-reasoned order. Compare R. & R.
at 4–16 with Obj. at 1–2. However, mindful of Plaintiff’s pro se status, and the Second Circuit’s
recent decision in Nambiar, the Court will review Plaintiff’s objections de novo. Nambiar, 2025
WL 3007285, at *5 (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 claims against Defendants Duell and
Philbrick because they “acted under color of law when they intervened in the November 25,
2023 incident at the Funny Bone Comedy Club, worked with security and Syracuse Police, and
exercised authority as law-enforcement officers. Their actions caused Plaintiff physical injury,
emotional distress, and violated her constitutional rights under the First and Fourth
Amendments.” 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” they exercise “some right or privilege created by the State . . . or” they are otherwise
“a person for whom the state is responsible, and” are “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)).
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Here, Plaintiff’s Complaint fails to allege any facts that the (off-duty) Defendants were
acting under color of law, “worked with security and Syracuse Police, [or] exercised authority as
law-enforcement officers.” See generally Am. Compl; Obj. at 1. Moreover, Plaintiff’s allegations
in their current form do not in and of themselves create a cause of action under Section 1983. See
Carr v. Gerwitz, No. 24-CV-1069, 2024 WL 4712526 at *3 (N.D.N.Y. Sept. 20, 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 overruled.
2. 	Objection 2
Plaintiff further objects to “dismissal of her denial-of-access-to-courts claim, as the
defendants’ failure to preserve and produce video footage constitutes a spoilation of evidence
essential to this case.” Obj at 2. While “FOIL allows individuals to request disclosure of records
collected by New York state agencies, subject to certain statutory exemptions,” Judge Katz
correctly explained that this Court “does not have jurisdiction over this issue.” See R. & R. at 7–
8. As Plaintiff knows, “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) (citing 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
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.
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V. 	CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No. 13, is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s amended complaint, Dkt. No. 10, is DISMISSED with
leave to amend as to each claim with the exception of Plaintiff’s FOIL claims; and it is further
ORDERED, that Plaintiff’s amended complaint, Dkt. No. 10, is DISMISSED with
prejudice as to Plaintiff’s FOIL claims; 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
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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