5:25-cv-01166•Jarvis v. Petricola et al
Gesamter Gesetzestext
- 1 - UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK HOLLY JARVIS, Plaintiff, 5:25-CV-1166 v. (ECC/DJS) OFFICER PETRICOLA, SERGEANT SENENKO, SYRACUSE POLICE DEPARTMENT, and SYRACUSE POLICE INTERNAL AFFAIRS DIVISION, Defendants. APPEARANCES: HOLLY JARVIS Plaintiff, Pro Se Syracuse, New York 13207 DANIEL J. STEWART United States Magistrate Judge REPORT-RECOMMENDATION and ORDER The Complaint was filed on August 26, 2025. Dkt. No. 1. Plaintiff sought leave to proceed in forma pauperis, which was granted. Dkt. Nos. 2 & 5. On September 4, 2025, the undersigned issued a Report-Recommendation and Order, which recommended dismissal of the Complaint, though with leave to amend. Dkt. No. 6, Report- Recommendation. Plaintiff filed objections to the Report-Recommendation, Dkt. No. 7, but also filed an Amended Complaint. Dkt. No. 8, Am. Compl. The District Court, Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 1 of 9
- 2 - finding that the Amended Complaint was filed as of right under F ED . R. CIV . P. 15, referred the Amended Complaint to the undersigned for review. Dkt. No. 10. For the reasons set forth below, the Court recommends that the Amended Complaint be dismissed. The legal standard for review under 28 U.S.C. § 1915 was set forth in detail in the Court’s prior Report and Recommendation, Report-Recommendation at pp. 2-4, and will not be set forth in full again. Generally stated, 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) I. FACTUAL ALLEGATIONS The Amended Complaint contains three causes of action, all brought pursuant to 42 U.S.C. § 1983, alleging violation of Plaintiff’s constitutional rights. Am. Compl. at pp. 6-7. Named as Defendants are two law enforcement officers with the Syracuse Police Department. Id. at ¶¶ 6-7.1 Plaintiff alleges that she was the victim of misconduct and harassment, id. at ¶ 10, and that she provided the Syracuse Police Department with “detailed information necessary to investigate, including the suspect’s license plate 1 Though originally named as Defendants, the Syracuse Police Department and its Internal Affairs Division were not named in the Amended Complaint and claims against those entities should be dismissed. Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 2 of 9
- 3 - number, her workplace, and times when the suspect could be located.” Id. at ¶ 11. She further alleges, however, that Syracuse Police “refused to act on Plaintiff’s complaint.” Id. at ¶ 13. She claims that this failure is related to the fact that she had previously filed a lawsuit against the Syracuse Police Department. Id. at ¶ 9. II. ANALYSIS OF THE AMENDED COMPLAINT The Amended Complaint asserts three causes of action: 1) retaliation, 2) violation of Plaintiff’s Fourteenth Amendment equal protection and due process rights, and 3) supervisory liability. Am. Compl. at pp. 6-7. A. Retaliation The Second Circuit has described the elements of a First Amendment retaliation claim in several ways, depending on the factual context. Generally speaking, however, a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech. B.A. on behalf of M.G., Jr. v. City of Schenectady Sch. Dist., 209 F. Supp. 3d 515, 525- 26 (N.D.N.Y. 2016) (internal quotations and citations omitted). Under this standard, Plaintiff’s retaliation claim should be dismissed. The Amended Complaint specifically claims that the retaliatory conduct alleged involved the “refus[al] to act on her complaint, ignoring her calls, and failing to investigate.” Am. Compl. at ¶ 22. This related to Plaintiff’s claims of criminal conduct directed at her. Id. at ¶ 11 (noting Plaintiff had provided information regarding the Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 3 of 9
- 4 - “suspect”). To state a retaliation claim Plaintiff must allege, inter alia, “that the defendant took adverse action against” him. Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003). “Defendants’ alleged failure to investigate Plaintiff’s complaints of criminal activity cannot be considered ‘adverse action’ against her.” Coleman v. Sutkowy, 2016 WL 6952152, at *2 (N.D.N.Y. Nov. 28, 2016) (citing Porter v. Goord, 2009 WL 2180580, *7 (W.D.N.Y. July 22, 2009)); see also Young Am.’s Found. v. Stenger, 2025 WL 874840, at *17 (N.D.N.Y. Mar. 20, 2025). Nor does the Amended Complaint allege the requisite casual connection. “To satisfy the third prong, the plaintiff must establish a [causal] connection between the filing of [her] lawsuits and the retaliatory event.” Toliver v. City of New York, 2013 WL 6476791, at *7 (S.D.N.Y. Dec. 10, 2013), report and recommendation adopted, 2014 WL 549402 (S.D.N.Y. Feb. 11, 2014). Plaintiff contends that the failure to investigate was connected to her previous filing of a lawsuit. Am. Compl. at ¶ 9. She claims only that the lawsuit placed the Syracuse Police Department and its supervisors on notice of protected activity. Id. No further details regarding that lawsuit are provided, however. She does not identify when or where it was filed, the parties to the action, the nature of the claims, or anything related to the disposition of the matter. Nor does the Amended Complaint specifically allege in any way that either of the Defendants named here were either a party to or aware of this litigation. Such bare bones allegations are too conclusory to support a claim. “[C]laims of this nature must be ‘supported by specific and detailed Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 4 of 9
- 5 - factual allegations,’ and ‘not stated in wholly conclusory terms.’” Hernandez v. Arnone, 2017 WL 1234098, at *2 (D. Conn. Mar. 31, 2017) (quoting Friedl v. City of N.Y., 210 F.3d 79, 86 (2d Cir. 2000)). For these reasons, the Court recommends that Plaintiff’s retaliation claim be dismissed. B. Fourteenth Amendment Claims The Amended Complaint also asserts claims under the Fourteenth Amendment; specifically that Plaintiff was denied equal protection because she was treated “differently than other complainants” and that the failure to investigate denied her due process. Am. Compl. at ¶¶ 26-28. Neither is a basis for relief and so Plaintiff’s second cause of action should be dismissed. “Although the Constitution does not provide an affirmative right to an investigation, ‘it does prohibit the government from treating individuals unequally when determining which claims to investigate.’” Barkai v. Ruppert, 2021 WL 3621359, at *6 (S.D.N.Y. Aug. 16, 2021) (quoting Lopez v. City of N.Y., 186 F. Supp. 3d 304, 312 (S.D.N.Y. 2016)). Such a selective treatment claim requires the Plaintiff to establish both that: (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 5 of 9
- 6 - FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992). Plaintiff offers only a purely conclusory assertion that other complainants were treated differently, and makes no allegation at all that the purported failure to investigate was based on an impermissible classification or basis. Such allegations are insufficient and dismissal of this claim is appropriate. Nor can Plaintiff establish a due process claim. The original Report- Recommendation noted the purported alleged failure to investigate did not give rise to a constitutional claim. The claim that Defendants failed to investigate her criminal complaint “fails to state a federal civil rights claim as a matter of law.” McCullough v. Syracuse Police Dep’t, 2015 WL 5057472, at *2 (N.D.N.Y. June 5, 2015), report and recommendation adopted, 2015 WL 5062370 (N.D.N.Y. Aug. 26, 2015). “[I]t is well-established in this Circuit that there is no cognizable claim arising under Section 1983 for an alleged failure to investigate.” Cornish v. Town of Bloomfield, 2023 WL 9698029, at *7 (D. Conn. Dec. 15, 2023) (citing Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973)); see also McCaffrey v. City of New York, 2013 WL 494025, at *5 (S.D.N.Y. Feb. 7, 2013) (“a ‘failure to investigate’ is not independently cognizable as a stand-alone claim.”). Report-Recommendation at p. 5. Courts have consistently adhered to the view that “there is no constitutional violation where the government refuses to investigate a crime.” Ehlers v. C.I.A., 2015 WL 3637431, at *3 (N.D.N.Y. June 10, 2015) (citing cases). “Accordingly, Plaintiff has failed to allege a violation of [her] due process rights based Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 6 of 9
- 7 - on Defendants’ alleged failure to investigate.” Alan v. U.S. Dep’t of Just., 716 F. Supp. 3d 67, 71 (W.D.N.Y. 2024) The Court, therefore, recommends that this claim be dismissed as to the individual Defendants as well. C. Supervisory Liability Plaintiff’s final claim alleges that Defendant Sisenko knew of misconduct on the part of Defendant Petricola and disregarded it in violation of Plaintiff’s rights. Am. Comp. at ¶¶ 30-31. This claim is specifically identified as one for “Supervisory Liability.” Id. at p. 7. “[P]ersonal 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 supervisory official “may not be held liable for damages for constitutional violations merely because he held a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Despite this rule, the Second Circuit for some time held that a supervisory official could be held liable under circumstances related to that supervisory role that did not involve their direct action. See Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). Colon set forth five theories of liability that could apply to supervisory officials. Id. at 873. The Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), however, “engendered conflict within our Circuit about the continuing vitality of the supervisory Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 7 of 9
- 8 - liability test set forth in Colon.” Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012). The conflict remained unresolved until the Second Circuit’s decision in Tangreti v. Bachmann, which concluded that “after Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’” 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. at 676). Tangreti requires that Plaintiff allege and establish that Defendants violated his rights “by [their] own conduct, not by reason of [their] supervision of others who committed the violation.” 983 F.3d at 619. Under that standard, Plaintiff’s allegation that Defendant Sisenko is liable for the failure to take corrective action regarding “the misconduct of his subordinates,” Am. Compl. at ¶¶ 30-31, fails to state a claim and should be dismissed. III. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Plaintiff’s Complaint be DISMISSED; 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. Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 8 of 9
- 9 - Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)2 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: December 5, 2025 Albany, New York 2 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). Case 5:25-cv-01166-ECC-DJS Document 11 Filed 12/05/25 Page 9 of 9
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