Smith v. Smith et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BISHME SMITH,
Plaintiff,
5:25-CV-1077
v. 	(MAD/DJS)
CLARENCE SMITH, et al.,
Defendants.
APPEARANCES:
BISHME SMITH
Plaintiff, Pro Se
Syracuse, New York 13261
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
The Complaint in this matter was initially filed in August 2025. Dkt. No. 1. That
Complaint was dismissed with leave to amend. 	Dkt. Nos. 6 & 14. 	Plaintiff filed an
Amended Complaint, Dkt. No. 10, and then sought leave to file a Second Amended
Complaint. 	Dkt. No. 17. 	Consistent with Rule 15’s direction that leave to amend be
freely given the Court grants that request and directs the Clerk to docket the proposed
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amended complaint, Dkt. No. 17-1, as the operative pleading.1 	The Court will now
review that pleading under 28 U.S.C. 1915(e).
The factual allegations in the Complaint center around Family Court proceedings
involving Plaintiff’s minor child as well as issues concerning the child’s education. See
generally Am. Compl. 	As was the case with the Court’s consideration of the original
Complaint, “it is not necessary to discuss the particular factual background of those
proceedings in detail here.” Dkt. No. 6 at p. 2.
I. 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).2
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)
1 Citation to that document throughout this opinion is in the form “Am. Compl.” followed by reference to specific
pages or paragraphs.
2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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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).
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II. DISCUSSION
The Amended Complaint adds multiple new Defendants and causes of action. See
generally Am. Compl. For the reasons laid out below, however, the Amended Complaint
is also subject to dismissal.
A. Claims under Section 1983
1. State Action
The section 1983 claims in the original Complaint were dismissed in part because
Plaintiff failed to demonstrate state action. 	See Dkt. No. 6 at pp. 4-6. 	As this Court’s
prior opinion noted, section 1983 is not a vehicle by which to challenge the actions of
private parties, but only those of governmental actors. Id. at p. 4 (citing Flagg v. Yonkers
Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)). 	As to several Defendants, the
absence of state action precludes section 1983 claims against them. 	Defendants
Mangovski, Vincent, Kerwin, and Zimpel are alleged to be court appointed attorneys for
parties to state Family Court proceedings. Am. Compl. at ¶¶ 10, 12, 13, & 16. “The role
of these attorneys in the state court litigation does not render them state actors.” Dkt. No.
6 at p. 5 (citing cases); see also Milan v. Wertheimer, 808 F.3d 961, 964 (2d. Cir. 2015)
(law guardian not a state actor); Culpepper v. Tierney, 2024 WL 3303268, at *2 (E.D.N.Y.
July 2, 2024) (court appointed 18B counsel not a state actor).
The Amended Complaint also names Clarence Smith, the grandfather of Plaintiff’s
child, and Volanda King, the child’s mother, as Defendants with respect to section 1983
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claims. Am. Compl. at ¶¶ 11 & 15. As explained in the prior opinion, the act of private
parties availing themselves of judicial proceedings does not render them “state actors” for
purposes of a section 1983 claim. Dkt. No. 6 at p. 5 (citing cases).3 “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 or were involved in it, see, e.g., Compl. at ¶¶ 5,
15, 18 & 19, 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 Mangovski, Vincent, Kerwin, Zimpel, King, and Smith be dismissed based
on a failure to allege state action.
2. Eleventh Amendment Immunity
Claims against the Onondaga County Family Court under section 1983 are barred
by “the Eleventh Amendment which provides states immunity in federal court.” Woods
v. Rondout Valley Cent. Sch. Dist. Bd of Educ., 466 F.3d 232, 236 (2d Cir. 2006). 	The
immunity applies both to the State itself and state agencies. Feingold v. New York, 366
3 While it is true that private actors may be proper § 1983 defendants when they conspire with state actors, mere
conclusory allegations that a private individual acted in concert with state officials such as those made throughout
the Amended Complaint are insufficient to establish state action. Ciambreillo v. County of Nassau, 292 F.3d 307,
324 (2d Cir. 2002).
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F.3d 138, 149 (2d Cir. 2004); McGinty v. New York, 251 F.3d 84, 95 (2d Cir. 2001) (“The
Eleventh Amendment extends immunity not only to a state, but also to entities considered
‘arms of the state.’”). “As a general rule, state governments and their agencies may not
be sued in federal court unless they have waived their Eleventh Amendment immunity or
there has been a valid abrogation of that immunity by Congress.” Jackson v. Battaglia,
63 F. Supp. 3d 214, 219-20 (N.D.N.Y. 2014) (citation omitted). 	“It is well-established
that New York has not consented to § 1983 suits in federal court and that § 1983 was not
intended to override a state’s sovereign immunity.” 	Mamot v. Bd. of Regents, 367 F.
App’x 191, 192 (2d Cir. 2010) (internal citations omitted). No other basis for waiver or
abrogation is set forth in the Amended Complaint. 	“New York family courts . . . are part
of ‘the New York State Unified Court System[, which is] unquestionably an arm of the
State and is entitled to Eleventh Amendment sovereign immunity.’” Dodd v. O’Sullivan,
2020 WL 204253, at *4 (N.D.N.Y. Jan. 14, 2020) (quoting Gollomp v. Spitzer, 568 F.3d
355, 368 (2d Cir. 2009)); see also Ryan v. Cholakis, 2014 WL 803776, at *5 (N.D.N.Y.
Feb. 25, 2014) (Rensselaer County Family Court is “entitled to Eleventh Amendment
immunity.”).
Claims against the court, therefore, should be dismissed.
3. Judicial Immunity
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
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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 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.
Plaintiff’s allegations against Judge Cerio all relate to the performance of official duties.
See, e.g., Am. Compl. ¶¶ 51-52. For these reasons, no exception to the immunity doctrine
applies.
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Claims against Defendant Primo, identified as the Deputy Court Clerk for
Onondaga County Family Court, are also subject to dismissal on immunity grounds.
“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 62, 66-67 (2d Cir. 1997)). The allegations against Primo
are brief and relate to his responsibility for court filings and notices, Am. Compl. at ¶ 7,
which clearly fall 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).
Claims against Defendants Cerio4 and Primo under section 1983 should be
dismissed based on judicial immunity.
4. Proper Parties
The Amended Complaint also names Onondaga County Child Protective Services
as a party and the Onondaga County Attorney’s Office as Defendants. Am. Compl. at ¶¶
9 & 14. These are agencies and offices within the County and not proper parties to a suit
as suable entities distinct from the County. 	Dixon v. Hahn, 2023 WL 5103162, at *5
(S.D.N.Y. Aug. 7, 2023).
4 A separate cause of action against Judge Cerio under 28 U.S.C. § 455, see Am. Compl. at ¶ 129, should also be
dismissed. That statute, which concerns standards for judicial recusal in federal court, applies by its express terms
only to federal judges, 28 U.S.C. § 455(a), and does not in any event “create a private cause of action.” Thundathil
v. United States, 2025 WL 3178530, at *4 (M.D. Fla. Oct. 21, 2025), report and recommendation adopted, 2025
WL 3173062 (M.D. Fla. Nov. 13, 2025) (citing cases).
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B. Claims under section 1981
Plaintiff names numerous Defendants in a claim under 42 U.S.C. § 1981. Section
1981 provides that:
[a]ll persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a). “To establish a claim under 42 U.S.C. § 1981, plaintiffs must allege
facts supporting the following elements: (1) plaintiffs are members of a racial minority;
(2) defendants’ intent to discriminate on the basis of race; and (3) discrimination
concerning one of the statute’s enumerated activities.” 	Brown v. City of Oneonta, New
York, 221 F.3d 329, 339 (2d Cir. 2000). “The law is clear that in order to state a claim
under § 1981 the plaintiff must plead facts which establish that defendants’ actions were
racially motivated and purposefully discriminatory.” 	Waldron v. Rotzler, 862 F. Supp.
763, 768 (N.D.N.Y. 1994).
This 	claim 	must 	be 	dismissed 	because 	Plaintiff 	has 	not 	made 	allegations
suggesting he could state a cause of action.5 He does not allege that he is a member of a
5 Cerio and Premo, as governmental actors, cannot in any event be liable under this statute because Ҥ 1981 does not
provide a separate private right of action against state actors.” Mitchell v. New York City Dep’t of Educ., 2025 WL
978366, at *2 n.5 (2d Cir. Mar. 31, 2025) (citing Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018)).
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racial 	minority 	nor 	that 	any 	Defendant 	acted 	toward 	him 	out 	of 	racial 	animus.
Accordingly, Plaintiff’s section 1981 claim should be dismissed.
C. Claims under section 1985
Next several parties are sued for a conspiracy to violate Plaintiff’s rights under 42
U.S.C. § 1985. Am. Compl. at ¶¶ 112-116.
The elements of a claim under § 1985(3) are: “(1) a conspiracy; (2) for the purpose
of depriving, either directly or indirectly, any person or class of persons of equal
protection of the laws, . . .; (3) an act in furtherance of the conspiracy; (4) whereby a
person is ... deprived of any right of a citizen of the United States.” 	Brown v. City of
Oneonta, N.Y., 221 F.3d at 341 (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085, 1087 (2d Cir. 1993)). “Furthermore, the conspiracy must also be motivated
by ‘some racial or perhaps otherwise class-based, invidious discriminatory animus behind
the conspirators’ action.’” 	Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d at
1088 (quoting United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 829 (1983)).
In evaluating a claim under section 1985, courts typically require the plaintiff to
allege membership in a “suspect or quasi-suspect class.” Bell v. New York State Dep’t of
Corr. & Cmty. Supervision, 2019 WL 1305809, at *12 (N.D.N.Y. Mar. 22, 2019); see
also Perrin v. Canandaigua City Sch. Dist., 2008 WL 5054241, at *2 (W.D.N.Y. Nov.
21, 2008) (citing cases). 	As noted above, Plaintiff does not allege to be the victim of
racial harassment, instead arguing that he is being discriminated against based on his
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status as a non-custodial parent. Am. Compl. at p. 32. However, “non-custodial parents
are not a suspect class.” Fuentes v. New York City Dep’t of Educ., 2012 WL 1078779, at
*4 (E.D.N.Y. Mar. 30, 2012); see also Huebner v. McCleary, 2006 WL 8457483, at *3
(D. Utah Jan. 27, 2006) (finding non-custodial parents not a protected class for purposes
of section 1985).
Plaintiff’s section 1985 claim, therefore, should be dismissed.
D. Individuals with Disabilities Education Act (“IDEA”) Claims
Plaintiff claims that the Syracuse City School District and numerous individual
Defendants are liable under IDEA regarding the handling of his son’s individualized
education plan. Am. Compl. at ¶¶ 130-131. The Amended Complaint also specifically
alleges that Plaintiff is a noncustodial parent. Id. at p. 32. That fact precludes Plaintiff’s
IDEA claim because the Second Circuit has held that noncustodial parents in New York
lack standing under the IDEA. Fuentes v. Bd. of Educ. of the City of N.Y., 569 F.3d 46,
47 (2d. Cir. 2009). The claims under this statute against individual Defendants should be
dismissed for the additional reason that there is no individual liability under the statute.
Close v. Bedford Cent. Sch. Dist., 2024 WL 3427213, at *13 (S.D.N.Y. July 16, 2024).
E. Claims Against Syracuse City School District
The Syracuse City School District is named as a Defendant in numerous causes of
action. Claims under sections 1981 and 1985 and the IDEA are subject to dismissal for
the reasons set forth above. See Points B, C, & D supra.
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Four distinct claims under section 1983, in Plaintiff’s first, tenth, eleventh, and
twelve causes of action, are asserted against the School District. School districts may be
sued under that statute, Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107,
128 (2d Cir. 2004), but “constitute municipal entities” for its purposes. D.J. by Comfort
v. Corning-Painted Post Area Sch. Dist., 722 F. Supp.3d 148, 160 (W.D.N.Y. 2024). “As
a result, a school district can only be held liable if its policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” Dole v. Huntington Union Free Sch. Dist., 699 F. App’x 85,
87 (2d Cir. 2017) (internal alterations and quotations omitted); see also D.C. by Collins
v. Eldred Cent. Sch. Dist., 2025 WL 2855583, at *6 (S.D.N.Y. Oct. 8, 2025) (“A school
district may only face liability under § 1983 for constitutional violations pursuant to the
well-established doctrine of municipal liability under Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978).”). 	Plaintiff has not alleged the
existence of any official policy or custom that caused him any harm. See generally Am.
Compl. 	In fact, his pleading of claims is largely conclusory and unclear as to the basis
for these claims against the district which also renders them subject to dismissal under
Federal Rule of Civil Procedure 8.
Finally, Plaintiff asserts a claim under the Federal Education Rights and Privacy
Act (“FERPA”), 20 U.S.C. 1232(g), concerning the failure to properly handle the records
of his biological child. 	Am. Compl. at ¶ 128. 	This claim should be dismissed because
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FERPA does not authorize a private cause of action. 	Sreedhar v. Nat’l Inst. of Tech.
Karnataka, 2025 WL 1237934, at *2 (S.D.N.Y. Apr. 29, 2025); Simpson ex rel. Simpson
v. Uniondale Union Free Sch. Dist., 702 F. Supp. 2d 122, 129 (E.D.N.Y. 2010). Instead,
an individual may seek administrative remedies regarding an alleged violation of this
section. Id.
F. State Law Claims
Numerous state law causes of action are asserted in the Amended Complaint as
they were in the original Complaint. 	This Court’s prior Report-Recommendation
explained the contours of federal jurisdiction and recommended dismissal of state law
claims based on the lack of subject matter jurisdiction. 	Dkt. No. 6 at pp. 6-8. 	Nothing
has changed with Plaintiff’s new pleading. The Amended Complaint again specifically
alleges that all parties are residents of New York, depriving this Court of diversity
jurisdiction over those claims. Am. Compl. at ¶¶ 4-17; Cohen v. Switch Fund Inv. Club,
LP, 2019 WL 5457620, at *3 (N.D.N.Y. Oct. 24, 2019).
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
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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.
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 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, given the repetition of previously dismissed claims, the
failure to plead cognizable causes of action, and the failure with the filing of this pleading
to remedy prior defects, the Court recommends that dismissal without further leave to
amend is appropriate. Vasquez v. Reece Sch., 2024 WL 497433, at *2 (S.D.N.Y. Feb. 8,
2024) (denying leave to amend when prior opportunity to do did not cure deficiencies).
IV. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that the Motion to Amend (Dkt. No. 17) is GRANTED and the Clerk
is directed to docket Dkt. No. 17-1 as the Second Amended Complaint; and it is
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RECOMMENDED, 	that 	Plaintiff’s 	Second 	Amended 	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)6 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); F ED . R. CIV . P. 72 & 6(a).
Dated: February 23, 2026
Albany, New York
6 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. F ED. 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. C IV. P. 6(a)(1)(C).
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