Vatalaro v. Popeo et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
SANDRA VATALARO,
Plaintiff,
6:26-CV-0156
v. 	(AJB/ML)
GARLAND POPEO, Judge 2012;
NEW YORK STATE DMV
COMMISSIONER; and ONEIDA
COUNTY DISTRICT ATTORNEY,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
SANDRA VATALARO
Plaintiff, Pro Se
1661 Dudley Avenue
Utica, New York 13501
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent a pro se Second Amended Complaint in the above captioned action
together with a second amended application to proceed in forma pauperis (“IFP”) filed by
Plaintiff Sandra Vatalaro (“Plaintiff”), to the undersigned for review. For the reasons set forth
below, I grant Plaintiff’s Second Amended IFP application and recommend that Plaintiff’s
Second Amended Complaint be dismissed without prejudice but without leave to replead.
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I. 	BACKGROUND
A. 	Procedural History
Plaintiff commenced this civil rights action pro se by the filing of a complaint alleging
that her rights were violated by Defendants Garland Popeo, New York State DMV
Commissioner, and Oneida County District Attorney (collectively “Defendants”). (Dkt. No. 1.)
Plaintiff did not pay the filing fee for this action and sought leave to proceed IFP. (Dkt. No. 2.)
On February 2, 2026, the undersigned denied Plaintiff’s IFP application without
prejudice because the Complaint contained pages that were illegible. (Dkt. No. 5.) On February
4, 2026, Plaintiff filed an amended complaint and amended IFP application. (Dkt. Nos. 8, 9.)
On February 20, 2026, the undersigned denied Plaintiff’s amended IFP application
without prejudice because the Amended Complaint contained pages that were illegible. (Dkt.
No. 13.)
On February 25, 2026, Plaintiff filed a Second Amended Complaint and Second
Amended IFP application, which are currently pending before the Court for review. (Dkt. Nos.
15, 16.) In addition, Plaintiff filed an emergency motion for a temporary restraining order. (Dkt.
No. 17.)
On February 27, 2026, United States District Judge Anthony J. Brindisi denied Plaintiff’s
motion for a temporary restraining order. (Dkt. No. 18.)
B. 	Second Amended Complaint
Construed as liberally1 as possible, the Second Amended Complaint alleges that
Plaintiff’s civil rights were violated by Defendants. (See generally Dkt. No. 15.)
1 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
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Although extremely difficult to understand, the Second Amended Complaint appears to
allege that between the years 2010 and 2012, Plaintiff was charged with multiple counts of
driving while intoxicated (“DWI”). (Dkt. No. 15 at 3.) Plaintiff alleges that she pleaded guilty
under duress, completed her sentence, and paid her fines. (Id.) Plaintiff alleges that the ignition
interlock device law changed after she was sentenced and despite installing the device for over
60 months, “they’re telling [her that she] still need[s] it.” (Id.)
Plaintiff asks that this Court obtain, among other things, (1) the recordings from her DWI
proceedings, (2) if the recordings have been purged then to obtain the purge date and who
approved it, (3) “all duty login sheets and payroll records showing which prosecutor was
assigned to each courtroom court assignments on each day,” (4) archived video footage from the
courtroom and hallway cameras, and (5) transcripts from the court stenographer. (Id.)
Plaintiff alleges that she suffers medical conditions that make it harder to swallow and
difficult or impossible to blow into a tube like a breathalyzer. (Dkt. No. 15 at 5.)
Based on these factual allegations, the Second Amended Complaint appears to assert the
following three causes of action: (1) a claim that Plaintiff’s right to due process pursuant to the
Fourteenth Amendment and 42 U.S.C. § 1983 was violated; (2) a claim that Plaintiff’s right to
equal protection of the law was violated pursuant to the Fourteenth Amendment and 42 U.S.C. §
1983; and (3) a claim that Plaintiff was subjected to cruel and unusual punishment pursuant to
the Eighth Amendment and 42 U.S.C. § 1983. (Dkt. No. 15 at 7.) As relief, Plaintiff seeks a
declaration that her conviction is invalid and the restoration of her driving privileges. (Dkt. No.
15 at 10-11.) In addition, Plaintiff seeks monetary damages in the amount of at least
$16,000,000. (Id. at 11.)
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II. 	PLAINTIFF’S SECOND AMENDED APPLICATION TO PROCEED IN FORMA
PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee,
currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee
for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s Second
Amended IFP application (Dkt. No. 16), the Court finds that Plaintiff meets this standard.
Therefore, Plaintiff’s application to proceed IFP is granted.3
III. 	LEGAL STANDARDS
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, 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.” 28 U.S.C. § 1915(e)(2).
In order to state a claim upon which relief can be granted, a complaint must contain, inter
alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief
means that 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) (emphasis
2 	The language of that section is ambiguous because it suggests an intent to limit
availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the
commencement of an action without prepayment of fees “by a person who submits an affidavit
that includes a statement of all assets such prisoner possesses”). The courts have construed that
section, however, as making IFP status available to any litigant who can meet the governing
financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City
of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
3 	Plaintiff is reminded that, although her IFP application has been granted, she is still
required to pay fees that she may incur in this action, including copying and/or witness fees.
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added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a
complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial
experience and common sense. . . . [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
shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and
punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the
complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua
sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .
. . have had an opportunity to respond.” 	Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. 	ANALYSIS
After carefully considering the matter, I recommend that Plaintiff’s Second Amended
Complaint be dismissed for the following four reasons.
First, Plaintiff’s Second Amended Complaint is frivolous and nonsensical. By way of
example, Plaintiff alleges as follows:
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im extremely exhausted it’s been 16 years and still accounting and im
getting old and my health is worsen I was born with health issue the
invisible disease anyway back in 2010-2012 I had paid lawyer Top dollar
and I plan on trial from jump the beginning all my Dwi were ran current
together. The paperwork make no sense I’m confused I was denied trial
and forced to Sign my plea conviction paperwork while pregnant so I
signed was under threat duress coercion so I signed (tdc). Attach in
exhibit dmv Close the case attached exhibit But the judge pick it up and
charged me attached exhibit I was not evening drinking the sad part smh
16 years and still
(Dkt. No. 15 at 3 [errors in original].) Moreover, Plaintiff alleges:
I want my due process. I want my life back. I want to live freely like
everyone else does and not have to pay anymore. I’m older, and my
health issues are becoming more of an issue. He lied on my paperwork as
well as under oath. Well, it will all come to light since it still haunts me.
I also think it’s my aunt and uncle who are expired that were judges
locally. They are turning in their graves on this!! Why else would it still
be haunting me? I still have blood family that don’t speak to me that are
judges also. I was disowned on faulty stuff.
(Dkt. No. 15 at 6 [errors in original].)
Plaintiff’s claims are precisely the type of fanciful or delusional allegations that warrant
dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) as factually frivolous. See, e.g., Gladney v.
Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002) (holding that suit may be dismissed
where facts alleged in complaint are “so nutty (‘delusional’ is the polite word) that they’re
unbelievable, even though there has been no evidentiary hearing to determine their truth or
falsity”); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (explaining that an action is frivolous
when “the factual contentions are clearly baseless, such as when allegations are the product of
delusion or fantasy”) (internal quotation marks omitted).
As a result, I recommend that Plaintiff’s Second Amended Complaint be dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
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Second, in the alternative, the Second Amended Complaint should be dismissed because
either (a) Defendants are immune from suit, or (b) Plaintiff fails to state a claim upon which
relief may be granted.
More specifically, Defendant Popeo is immune from suit pursuant to the doctrine of
judicial immunity. Judges are absolutely immune from suit for claims seeking damages for any
actions taken within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9,
11-12 (1991). 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.” Bliven, 579 F.3d at 209.
Here, Plaintiff appears to assert claims arising from the efforts of Defendant Popeo in his
capacity as judge. (See generally Dkt. No. 15.) Defendant Popeo is therefore immune from suit
under the doctrine of judicial immunity. As a result, I recommend that, in the alternative,
Plaintiff’s claims against Defendant Popeo in his individual capacity be dismissed based on the
doctrine of judicial immunity.4
4 	To the extent that the Second Amended Complaint is construed as seeking injunctive
relief against Defendant Popeo, I recommend that it be dismissed. “[A] judge is not absolutely
immune . . . from a suit for prospective injunctive relief.” Mireles v. Waco, 502 U.S. 9, 10 n.1
(1991) (citing Pulliam v. Allen, 466 U.S. 522, 536-43 (1984)). However, “in any action brought
against a judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief
was unavailable.” 42 U.S.C. § 1983. “[D]eclaratory relief against a judge for actions taken
within his or her judicial capacity is ordinarily available by appealing the judge’s order.” Davis
v. Campbell, 13-CV-0693, 2014 WL 234722, at *9 (N.D.N.Y. Jan. 22, 2014) (Baxter, M.J.). In
addition, “[a] plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy
the injury requirement but must show a likelihood that he or she will be injured in the future.”
Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). Here, the Second
Amended Complaint “allege[d] neither the violation of a declaratory decree, nor the
unavailability of declaratory relief,” despite the availability of mechanisms for such relief.
Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).
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Moreover, I recommend that to the extent that the Second Amended Complaint is
construed as asserting claims against Defendant Popeo in his official capacity, they be dismissed
pursuant to the Eleventh Amendment. See Sundwall v. Leuba, 28 F. App’x 11, 12 (2d Cir. 2001)
(citing K & A Radiologic Tech. Servs., Inc. v. Comm'r of the Dep't of Health, 189 F.3d 273, 278
(2d Cir. 1999)) (holding that “state officers, if sued in their official capacities, are immunized
from suit by private citizens under the Eleventh Amendment.”); King v. New York State, 23-CV-
3421, 2023 WL 5625440, at *4 (E.D.N.Y. Aug. 31, 2023) (citing Thomas v. Martin-Gibbons,
857 F. App'x 36, 37 (2d Cir. 2021) (affirming dismissal of pro se Section 1983 claims against the
State of New York and a state court judge in his official capacity based on Eleventh Amendment
immunity)) (“Eleventh Amendment immunity extends to state officials acting in their official
capacities, including state court judges.”); Aron v. Becker, 48 F. Supp. 3d 347, 366-67 (N.D.N.Y.
2014) (McAvoy, J.) (dismissing the plaintiff’s claims against a state court judge in his official
capacity based on the doctrine of Eleventh Amendment immunity).
With respect to Defendant New York State DMV Commissioner—Mark Schroeder—any
claims against him in his official capacity are subject to dismissal pursuant to Eleventh
Amendment immunity. The Eleventh Amendment bars a citizen from bringing a suit against her
own state in federal court. See U.S. Const. amend. XI. The Eleventh Amendment also
immunizes States against suits for damages against state officials acting in their official
capacities. Kentucky v. Graham, 473 U.S. 159, 169 (1985). “This immunity extends to ‘. . . state
instrumentalities.’” Clark v. Schroeder, 847 F. App’x 92, 94 (2d Cir. 2021) (citing Regents of
Univ. of Cal. v. Doe, 519 U.S. 425, 429-30 (1997)). “The DMV, of course, is a state
instrumentality.” Boyd v. New York, 25-CV-0169, 2026 WL 171909, at *3 (N.D.N.Y. Jan. 22,
2026) (Kahn, J.) (citing Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004)). Thus, I
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recommend that Plaintiff’s claims against Defendant New York State DMV Commissioner in his
official capacity be dismissed as barred by the Eleventh Amendment. Boyd, 2026 WL 171909,
at *4 (dismissing with prejudice the plaintiff’s claims against the defendant New York State
DMV Commissioner in his official capacity as “clearly barred by the Eleventh Amendment.”).
To the extent Defendant New York State DMV Commissioner is sued in his individual
capacity, “the personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Victory v. Pataki, 814 F.3d 47, 67 (2d Cir.
2016) (quotation marks and citation omitted). “A plaintiff must ‘allege a tangible connection
between the acts of a defendant and the injuries suffered.’” Salvana v. New York State Dep't of
Corr. & Cmty. Supervision, 621 F. Supp. 3d 287, 311 (N.D.N.Y. 2022) (quoting Bass v. Jackson,
790 F.2d 260, 263 (2d Cir. 1986)), reconsideration denied, 2022 WL 17083088 (N.D.N.Y. Nov.
18, 2022). “The Second Circuit recently clarified that there is no special rule for supervisory
liability and explained that a plaintiff must plead and prove that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Salvana,
621 F. Supp. 3d at 311 (quotation marks omitted) (quoting Tangreti v. Bachmann, 983 F.3d 609,
618 (2d Cir. 2020)). The Second Amended Complaint does not contain a single allegation
against Commissioner Schroeder to establish his personal involvement in a constitutional
violation. (See generally Dkt. No. 15.) Thus, I recommend that any claims against
Commissioner Schroeder in his individual capacity be dismissed for failure to state a claim upon
which relief may be granted.
With respect to Plaintiff’s claims against Defendant Oneida County District Attorney in
his individual capacity, I recommend that they be dismissed based on the doctrine of immunity.
“Prosecutors sued under § 1983 enjoy absolute immunity ‘from claims for damages arising out
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of prosecutorial duties that are intimately associated with the judicial phase of the criminal
process.’” Joyner v. Cnty. of Cayuga, 20-CV-0060, 2020 WL 1904088, at *9 (N.D.N.Y. Apr.
17, 2020) (D’Agostino, J.) (quoting Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996)).
Prosecutorial immunity from § 1983 liability is broadly defined, covering “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) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.
1994)). This includes “the decision to bring charges against a defendant, presenting evidence to
a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New York, 11-CV-
0316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York,
00-CV-3626, 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). Immunity even extends to
“the falsification of evidence and the coercion of witnesses[;]” “the knowing use of perjured
testimony[;]” “the deliberate withholding of exculpatory information[;]” the “making [of] false
or defamatory statements in judicial proceedings[;]” and the “conspiring to present false
evidence at a criminal trial[.]” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee
v. Willins, 617 F.2d 320, 321-22 (2d Cir. 1980)); Imbler v. Pachtman, 424 U.S. 409, 431 n.34
(1976); Burns v. Reed, 500 U.S. 478, 490 (1991); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994).
The Second Amended Complaint alleges that during Plaintiff’s guilty plea the prosecutor
“stood there didn’t do nothing.” (Dkt. No. 15 at 3 [errors in original].) In addition, the Second
Amended Complaint alleges that “Mr. McNamara was also in the courtroom. He looked like he
wanted to say something, but he didn’t.”5 (Id. at 7.) Based on these allegations, Defendant
5 	The Court takes judicial notice of the fact that Scott McNamara was the Oneida County
District Attorney from approximately 2007 until 2023. See Historical Society of the New York
Courts - District Attorneys: Oneida County, https://history.nycourts.gov/figure/district-attorneys-
oneida-county/ (last visited March 2, 2026).
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Oneida County District Attorney is entitled to prosecutorial immunity for the actions he took in
his role as a prosecutor. See Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005)
(citation and internal quotation marks omitted) (collecting cases) (“It is by now well established
that a state prosecuting attorney who acted within the scope of his duties in initiating and
pursuing a criminal prosecution is immune from a civil suit for damages under § 1983.”).
To the extent that Plaintiff attempts to assert claims against Defendant Oneida County
District Attorney in his official capacity, those claims are subject to dismissal pursuant to the
Eleventh Amendment. See D'Alessandro v. City of New York, 713 F. App’x 1, 8 (2d Cir. 2017)
(“[I]f a district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the
state, and therefore immune from suit in her official capacity.”); Rich v. New York, 21-CV-3835,
2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 2022) (“[A]ny claims Plaintiff may raise against
the DA Defendants in their ‘official capacity’ would be precluded by immunity under the
Eleventh Amendment.”).
As a result, I recommend that Plaintiff’s claims against Defendant Oneida County
District Attorney be dismissed based on the doctrine of prosecutorial and sovereign immunity.
Third, in the alternative, Plaintiff’s claims are barred pursuant to the Rooker-Feldman
doctrine. “Rooker-Feldman directs federal courts to abstain from considering claims when four
requirements are met: (1) the plaintiff lost in state court, (2) the plaintiff complains of injuries
caused by the state court judgment, (3) the plaintiff invites district court review of that judgment,
and (4) the state court judgment was entered before the plaintiff’s federal suit commenced.”
McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010).
Plaintiff alleges that in 2012, she pleaded guilty in state court, was sentenced, and that
judgment has not been overturned. (See generally Dkt. No. 15.) Plaintiff seeks invalidation of
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her conviction and restoration of her driving privileges. (Dkt. No. 15 at 10-11.) Thus, the
Rooker-Feldman doctrine bars Plaintiff’s request for injunctive and declaratory relief related to
her criminal plea, conviction, and sentence. See McNeil v. Van Houten, 25-CV-0725, 2025 WL
3171001, at *3 (N.D.N.Y. Nov. 13, 2025) (Nardacci, J.) (“To the extent that Plaintiff seeks to
challenge his conviction in Tompkins County Court, the Rooker-Feldman doctrine bars
Plaintiff's claims. Under Rooker-Feldman, federal district courts lack subject matter jurisdiction
over suits where “a plaintiff seeks relief that invites a federal district court to reject or overturn a
final decision of a state court as to a conviction.”); Cathlin v. City of New York, 23-CV-4219,
2023 WL 6929187, at *3 (S.D.N.Y. Oct. 18, 2023) (collecting cases).
Fourth, plaguing this action further is the fact that the statute of limitations has run on any
civil rights claim Plaintiff seeks to assert under 42 U.S.C. § 1983. The events purportedly giving
rise to Plaintiff’s claims occurred in 2012, when Plaintiff pleaded guilty to one or more counts of
DWI and was sentenced. (Dkt. No. 15 at 3, 6-7); Pauk v. Bd. of Trustees of City Univ. of New
York, 654 F.2d 856, 859 (2d Cir. 1981) (federal claim accrues when the plaintiff “knows or has
reason to know” of the injury that is the basis for his action). Notwithstanding, Plaintiff did not
commence this action until January 30, 2026. With a three-year statute of limitations for § 1983
actions, it appears that this action is not timely. Bailey v. Tricolla, 94-CV-4597, 1995 WL
548714, at *3 (E.D.N.Y. Sept. 12, 1995) (noting that in the absence of a congressional dictate as
to a limitations period, we apply the most appropriate state statute of limitations, which for 1983
actions is the general personal injury statute setting forth a limitations period of three years); see
also Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (noting that the applicable
limitations period for § 1983 actions in New York is three years).
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Thus, because Plaintiff did not file this action until more than three years after the claim
accrued, it is time-barred unless a tolling principle applies so as to excuse the delay.6
Tolling is not warranted under the circumstances alleged in the Second Amended
Complaint. “Although the Second Circuit recognizes the continuing violation doctrine, it has
qualified that the doctrine applies only to claims ‘composed of a series of separate acts that
collectively constitute one unlawful practice,’ or ‘claims that by their nature accrue only after the
plaintiff has been subjected to some threshold amount of mistreatment.’” Hall v. Clinton Cnty.,
18-CV-1405, 2020 WL 1923236, at *5 (N.D.N.Y. Apr. 21, 2020) (Suddaby, C.J.) (quoting
Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015)). Moreover, equitable tolling is available in
“rare and exceptional” cases where “extraordinary circumstances prevented a party from timely
performing a required act,” and “the party acted with reasonable diligence throughout the period”
to be tolled. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005); see also Gonzalez v. Hasty,
651 F.3d 318, 322 (2d Cir. 2011) (“Equitable tolling is an extraordinary measure that applies
only when plaintiff is prevented from filing despite exercising that level of diligence which could
reasonably be expected in the circumstances.”). I recommend that the Court decline to find the
continuing violation doctrine or equitable tolling applicable to Plaintiff’s claims and find that
there is no other apparent basis for tolling the statute of limitations.
6 	The failure to file an action within the limitations period is an affirmative defense, and
thus, a plaintiff is not required to plead that the case is timely filed. See Abbas v. Dixon, 480
F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an
affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See
Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011)
(“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain
circumstances where the facts supporting the statute of limitations defense are set forth in the
papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v.
Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on
statute of limitations grounds).
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For each of these reasons, I recommend that Plaintiff’s Second Amended Complaint be
dismissed.
V. 	OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in 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.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, 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.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).7
The issues identified in the Second Amended Complaint are substantive, such that better
pleading cannot cure them. As a result, I recommend that the Second Amended Complaint be
dismissed without prejudice but without leave to amend. See Madore on behalf of M.R.M. v.
7 	See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
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15
Pavone, 25-CV-0095, 2025 WL 3003384, at *7 (N.D.N.Y. Oct. 27, 2025) (Sannes, C.J.)
(dismissing without leave to replead because “the Eleventh Amendment, Rooker-Feldman
doctrine, and judicial immunity issues cannot be cured by better pleading.”); Britt v. Doe, 22-
CV-0692, 2022 WL 16579207, at *9 (N.D.N.Y. Oct. 13, 2022) (Lovric, M.J.) (recommending
dismissal without prejudice and without leave to amend, the plaintiff’s claims against defendants
who are immune from suit), report and recommendation adopted by, 2022 WL 16571391
(N.D.N.Y. Nov. 1, 2022) (Sharpe, J.).
ACCORDINGLY, it is
ORDERED that Plaintiff’s second amended application to proceed in forma pauperis
(Dkt. No. 16) is GRANTED; and it is further respectfully
RECOMMENDED that Plaintiff’s Second Amended Complaint (Dkt. No. 15) be
DISMISSED without prejudice and without leave to amend pursuant to 28 U.S.C. §
1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.8
8 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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16
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.9 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; 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)).
Dated: March __, 2026
Binghamton, New York
9 	If you are proceeding pro se and 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 that 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).
3
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Bailey v. Tricolla, Not Reported in F.Supp. (1995)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1995 WL 548714
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
John BAILEY, etc., Plaintiff,
v.
Detective Philip TRICOLLA et alia, Defendants.
No. CV–94–4597 (CPS).
|
Sept. 12, 1995.
MEMORANDUM AND ORDER
SIFTON, Chief Judge.
*1 This is a civil rights action brought pro se by
plaintiff John Bailey on behalf of himself and his minor
daughter Natasha Bailey. The defendants are New York City
Police Detective Philip Tricolla, Detective Douglas Hopkins,
Detective Ortiz, Detective A. Semioli and an unnamed
employee of Channel 9 News, “John Doe.” Interpreting
plaintiffs' complaint liberally, as required by Haines v. Kerner,
404 U.S. 519 (1972), several federal and state claims are
stated. Plaintiffs assert claims under 42 U.S.C. § 1983 based
on the Fourth, Eighth and Fourteenth Amendments. The
following federal claims are asserted by John Bailey on
his own behalf: (1) that his Fourth Amendment right was
violated when his property was illegally searched and seized
by Detectives Tricolla, Semioli, and others, (2) that his Eighth
Amendment right was violated when the detectives failed
to stop an attack on plaintiff while in their custody, and (3)
that his 14th Amendment right to due process was violated
when the detectives filed false police reports and perjured
themselves testifying at his trial. The following state claims
are also asserted: (1) that an unidentified man who reportedly
worked for Channel 9 News battered plaintiff John Bailey
while he was in the custody of Detectives Tricolla and
Hopkins, (2) that the detectives engaged in abuse of process
when they filed false police reports concerning plaintiff's
conduct, and (3) on behalf of Natasha Bailey, plaintiff John
Bailey asserts that Detective Ortiz took her from her mother
and used excessive force to do so.
On February 10, 1995, plaintiff moved for leave to amend the
complaint to name “Channel 9 Broadcasting Systems, any and
all Affiliates and or Sponsor's and Newscasters, and anyone
and everyone responsible for the broadcasting of the Channel
9 news story shown on the Channel 9 news on or about June
7, 1991, in which the plaintiff was assaulted both physically
then verbally with false slanderous stat[e]ments that implied
plaintiff's guilt.”
There are two motions to dismiss before the Court. In the first,
defendant Detectives Tricolla, Hopkins, Ortiz, and Semioli
move to dismiss the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure on the grounds that the
complaint is barred by the statute of limitations and that the
defendants are immune from suit. In the second, defendant
“John Doe,” a Channel 9 News Reporter, moves to dismiss
the complaint on two grounds. First, pursuant to Rule 12(b)
(1), defendant Doe argues that this Court lacks subject matter
jurisdiction over him because, as a news reporter, “John
Doe” is not a “person” within the meaning of 42 U.S.C. §
1983. Second, pursuant to Rule 12(b)(6), Doe asserts that the
complaint is barred by the statute of limitations.
On March 29, 1995, this Court received a sworn affidavit and
supplementary exhibits from plaintiff John Bailey seeking
to establish that his complaint was filed within the statute
of limitations. Defendants have not had responded to this
material. For the reasons set forth below, defendants' motions
to dismiss certain claims based on absolute immunity are
granted in part and denied in part. The city defendants'
motion to dismiss the remaining claims statute of limitations
grounds is denied. Defendant Doe's motion to dismiss the
complaint as to himself is granted. Plaintiff's motion to
amend the complaint as set forth in their motion is denied.
Plaintiffs' motion for the appointment of counsel for the
plaintiff Natasha Bailey is granted, and this action is stayed
pending the appointment of counsel and guardian ad litem for
the minor plaintiff.
BACKGROUND
*2 The following facts are taken from the plaintiff's
complaint and, for the purposes of this motion, are presumed
to be true and are regarded in a light most favorable to the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). Plaintiffs'
complaint alleges constitutional injury arising from several
incidents. On June 6, 1991, plaintiff John Bailey was arrested
by Detective Tricolla and “a great many other Detectives.” At
the time of the arrest, detectives searched and seized plaintiff's
property including a bill of sale for a .25 caliber automatic,
firearms, ammunition, a gun registration, a firearms lock
box, several keys, two wallets, and other items. Detective
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Semioli is specifically accused of stealing plaintiff's transit
badge and buspass I.D. On the day of plaintiff's arrest, June
6, 1991, Detective Ortiz questioned Natasha Bailey, plaintiff
John Bailey's daughter, and took her away from her mother
by force. On June 7, 1991, between 2 and 5 a.m. plaintiff
was being escorted in handcuffs by Detectives Tricolla and
Hopkins through the main lobby of the 71st police precinct
when plaintiff was hit by defendant “John Doe,” a man he
later learned was employed by Channel 9 News. Detectives
also are accused of filing false police reports concerning
John Bailey and Natasha Bailey and are accused of perjuring
themselves when testifying at plaintiff's trial.
In the motion to amend the complaint, plaintiff alleges that
these events were broadcast on Channel 9 News on or about
June 7, 1991.
DISCUSSION
Subject Matter Jurisdiction
Defendant Doe has argued that this court lacks subject
matter jurisdiction. 1 Plaintiffs filed their suit under 42 U.S.C.
§ 1983. Defendant Channel 9 news reporter “John Doe”
contends that he is not a “person” within the meaning of
§ 1983, and that this Court therefore lacks subject matter
jurisdiction over him. Defendant cites no case law to support
this proposition but relies solely on the plain meaning of the
statute. 2 This Court has also found nothing that would lend
defendant's position support.
In one § 1983 case involving a journalist, Fitzpatrick v.
Wert, 432 F.Supp. 601 (W.D.N.Y.1977), inmates sued news
reporters who reported and commented on a statement made
by the president of a prison guards' union. Plaintiffs alleged
that defendant news reporters were involved in a conspiracy
to deprive plaintiffs of equal protection under the law. Id.
at 603. The suit was dismissed as frivolous. The reporters
were held not liable under § 1983 because they were
engaged in exercising their constitutionally protected rights.
Id. However, neither in Fitzpatrick nor anywhere else in the
extant case law has a court held that journalists were or were
not “persons” within the meaning of the statute. The proper
issue before the Court is whether defendant “John Doe” was
acting “under color of any statute, ordinance, regulation,
custom, or usage, of any State....” 42 U.S.C. § 1983. This is
an issue more appropriately dealt with as a 12(b)(6) motion
to dismiss, since acting under color of state law is an element
of pleading a § 1983 cause of action. Gomez v. Toledo, 446
U.S. 635, 640 (1980). Moreover, when a district court has
both a 12(b)(1) and 12(b)(6) motion before it, the “preferable
approach, if the 12(b)(1) motion essentially challenges the
existence of a federal cause of action, is for the court to find
jurisdiction and then decide the 12(b)(6) motion.” Jones v.
State of Georgia, 725 F.2d 622 (11th Cir.) (citing Williamson
v. Tucker, 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897
(1981)), cert. denied, 469 U.S. 979 (1984). Accordingly, this
Court has subject matter jurisdiction over this defendant.
*3 As to defendants Detective Philip Tricolla, Detective
Douglas, Detective Hopkins, Detective Ortiz, and Detective
A. Semioli, this Court has subject matter jurisdiction over
the case pursuant to 28 U.S.C. § 1343(a)(3) and (4) 3
which specifically provides jurisdiction over § 1983 actions.
Jurisdiction is also proper pursuant to 28 U.S.C. § 1331 which
provides district courts with jurisdiction over all civil actions
arising under the Constitution, laws, or treaties of the United
States.
City Defendants' Statute of Limitations Defense
Defendants argue that the statute of limitations bars all of
plaintiffs' claims except the allegation that detectives perjured
themselves at the plaintiff's trial. There are three elements
needed to determine whether a claim falls within the statute
of limitations: (1) when the period of limitations accrued, (2)
how long the period runs for, and (3) whether the period has
been tolled by reason of incapacity. Federal law determines
when an action accrues. Morse v. University of Vt., 973 F.2d
122, 125 (2d Cir.1992); Singleton v. City of New York, 632
F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920
(1981).
The statutory period for bringing a § 1983 action accrues on
the day when plaintiff “ ‘knows or has reason to know’ of
the injury which is the basis of his action.” Pauk v. Board
of Trustees, 654 F.2d 856, 859 (2d Cir.) (quoting Singleton ),
cert. denied, 455 U.S. 1000 (1982). Furthermore, the “proper
focus is on the time of the discriminatory act, not the point at
which the consequences of the act become painful.” Chardon
v. Fernandez, 454 U.S. 6, 8 (1991). Plaintiff's claims accrued
on different dates. Plaintiff's property was searched and seized
on June 6, 1991, at the time of his arrest, and on June 7,
1991, plaintiff was allegedly assaulted by defendant “John
Doe” while in the custody of defendant Detectives Tricolla
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and Hopkins. Plaintiff clearly had immediate knowledge of
both of these events, and thus any cause of action arising
therefrom accrued at that time.
Congress provided no explicit statute of limitations for § 1983
claims. As a result, there was much confusion as to which
state limitations statute to apply until the Supreme Court,
in Wilson v. Garcia, 471 U.S. 261 (1985), decided that the
states' general personal injury statute of limitations should be
applied to all § 1983 claims. Id. at 276. When a state has more
that one personal injury statute of limitations, as is the case in
New York, § 1983 claims are governed by the state's residual
or general personal injury statute of limitations rather that by
the statute of limitations for an enumerated intentional tort.
Owens v. Okure, 488 U.S. 235 (1989). Under New York CPLR
§ 214, the general personal injury statute of limitations is three
years. Therefore, in New York, a plaintiff must commence his
§ 1983 action within three years of the date the cause of action
accrues. See Perez v. Police Dept. of the City of New York, 872
F.Supp. 49, 51 (S.D.N.Y.1994).
*4 Plaintiff John Bailey signed and notarized his complaint
on May 16, 1994. However, the complaint was date-stamped
“received” on July 11, 1994, by the Southern District pro
se office and stamped as filed with the Southern District of
New York on September 13, 1994. In a supplemental affidavit
filed on March 29, 1995, plaintiff attests that he prepared and
mailed the complaint to the Southern District for filing on
May 17, 1994, and requested a return receipt. Plaintiff has
annexed to his affidavit a copy of his certified mail receipt,
addressed to the U.S. District Court at 40 Centre St., New
York, N.Y. and showing a post office stamp of May 17, and a
copy of the returned receipt, signed and dated May 26, 1994.
Rule 3 of the Federal Rules of Civil Procedure determines
when a civil rights action commences. It simply states “[a]
civil action is commenced by filing a complaint with the
court.” Fed.R.Civ.P. 3. Incarcerated litigants are afforded
more leeway when they file pleadings because of their
inability to file papers personally with the clerk of the court.
Thus, for example, litigants may file a complaint by handing
it to prison authorities, Dory v. Ryan, 999 F.2d 679, 682 (2d
Cir.1993) (discussing Houston v. Lack, 487 U.S. 266 (1988)),
modified by 25 F.3d 81 (2d Cir.1994); Lewis v. Richmond City
Police Dept., 947 F.2d 733, 734 (4th Cir.1991), or may file an
appeal in the same manner. LaBounty v. Adler, 933 F.2d 121
(2d Cir.1991).
At least one court has held that a return receipt dated within
the limitations period suffices to prove receipt by the clerk
and therefore filing, even if the clerk's office stamps the
pleading “received” or “filed” on later dates. Cooper v. City
of Ashland, 871 F.2d 104, 105 (9th Cir.1989). Generally, file
stamps are far from dispositive of a statute of limitations issue.
In Mays v. New York City Police Dept, 701 F.Supp. 80, 83 n.
6 (S.D.N.Y.1988), aff'd, 888 F.2d 1376 (2d Cir.1989), it was
held that “[w]hen a pro se plaintiff's complaint is received
by the Court within the statutory period, as here, and official
filing is delayed by the Court's consideration of plaintiff's
request for leave to proceed in forma pauperis, the action will
be deemed timely for purposes of the statute of limitations.”
See also Salahuddin v. Harris, 657 F.Supp. 369, 373 n. 3
(S.D.N.Y.1987). The key inquiry is whether the clerk's office
had actual control; papers placed in a night depository box
after hours on the last day of the limitations period are deemed
timely notwithstanding a local rule that such papers would
be deemed filed the following day, because the papers placed
in the box were held to be in the clerk's “actual possession.”
Greenwood v. State of N.Y., Office of Mental Health, 842 F.2d
636, 639 (2d Cir.1988); see also Martin v. Demma, 831 F.2d
69, 71 (5th Cir.1987) (district court's acceptance of date on
clerk's stamps as dispositive was error). Plaintiff's production
of the post office return receipt showing that his complaint
was received at the Southern District clerk's office within the
limitations period meets his burden of producing evidence to
show that his papers were timely filed sufficient to warrant
denial of the motion to dismiss at this time. The denial of this
motion is without prejudice if discovery uncovers additional
evidence relating to this matter.
Alleged False Police Reports and Perjured Testimony
*5 Plaintiff also claims that defendant detectives filed false
police reports and lied while testifying at his trial. Even
if timely filed, these claims cannot withstand a motion to
dismiss.
Generally, police officers have available a defense of only
qualified immunity. Pierson v. Ray, 386 U.S. 547 (1967).
However, defendant detectives are correct that officers
serving as witnesses have absolute immunity from civil
liability for their testimony. Briscoe v. LaHue, 460 U.S.
325 (1983). As the Supreme Court held in Briscoe, “the
common law provided absolute immunity from subsequent
damages liability for all persons—governmental or otherwise
—who were integral parts of the judicial process.” Id. at 335.
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Section 1983 does not abrogate this traditional immunity.
Examining the legislative history of the Ku Klux Klan Act
of 1871, 17 Stat. 13 (now codified at 42 U.S.C. §§ 1983
and 1985, inter alia ), the Supreme Court found nothing
to “support petitioners' contention that Congress intended to
provide a § 1 damages remedy against police officers or any
other witnesses.” Id. at 341. The Court specifically noted
that, although “some defendants might indeed be unjustly
convicted on the basis of knowingly false testimony by police
officers ... the alternative of limiting the official's immunity
would disserve the broader public interest.” Id. at 345. In light
of Briscoe, defendant detectives are absolutely immune from
this § 1983 action with respect to their testimony at plaintiff's
trial.
Plaintiff's allegations that the police officers filed false police
reports against him also fails to state a claim. “[T]he mere
filing of the false police reports, by themselves and without
more, [does] not create a right of action in damages under
42 U.S.C. § 1983.” Landrigan v. City of Warwick, 628 F.2d
736, 744–45 (1st Cir.1980). Plaintiff's claims could be cast
as a cause of action for malicious prosecution. Allegations of
malicious prosecution do not ordinarily state a claim under
§ 1983. Easterhouse v. Felder, 910 F.2d 1387, 1407 (7th
Cir.1990), cert. denied, 498 U.S. 1067 (1991); Gunderson
v. Schueter, 904 F.2d 407, 409 (8th Cir.1990); Usher v.
City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). The
filing of false police reports may bring a claim for malicious
prosecution within the scope of § 1983. Usher v. City of
Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However,
an essential element of such a claim is that the proceeding
must terminate in plaintiff's favor, and plaintiff has not alleged
this key fact. Bernard v. United States, 25 F.3d 98, 104 (2d
Cir.1994). If plaintiff were convicted but believes that he
was wrongly convicted, his proper remedy is not a claim
for damages but rather an appeal, a collateral attack in state
court, or a habeas petition in federal court. Plaintiffs thus have
no cognizable § 1983 claim for the alleged filing of false
reports. 4
*6 Since the only other argument advanced by the city
defendants is the statute of limitations and since that argument
fails as noted above, their motion to dismiss the complaint is
granted only with respect to the alleged false reports and false
testimony and is denied in all other respects.
Claims Against Defendant “John Doe”
The “under color” of law provision of § 1983 does not
require that the defendant be an officer of the State. Dennis
v. Sparks, 449 U.S. 24 (1980). However, for the conduct of
a private party to fall within the “under color” language, that
conduct must be supported by state action, usually in the
form of a conspiracy. Adickes v. S.H. Kress & Co., 398 U.S.
144, 163 (1970) (defendant restaurant owner who refused to
serve Caucasian woman in the company of African American
students was acting under color of law within the meaning of
§ 1983 because of his participation in a conspiracy with local
police to deprive plaintiff of her rights). State support which
transforms private action into state action may take many
forms. In plaintiff's case, the only support given to “John
Doe” was the inaction of the detectives who witnessed the
battery. This level of support, if it can be called support at all,
cannot qualify as state action because the complaint fails to
allege that the attack was the result of a joint venture with the
detectives. See United States v. Price, 383 U.S. 787 (1966).
In Price, private actors charged with conspiring with local
police to injure three men came within the scope of the statute
because the private persons acted as willful participants in a
joint activity with the state or its agents. Id. at 794. The Second
Circuit has repeatedly held that § 1983 conspiracy claims
must “contain more than mere conclusory allegations ... [and
that] a plaintiff should not plead mere evidence; he should
make an effort to provide some ‘details of time and place and
the alleged effect of the conspiracy.’ ” Dwares v. City of New
York, 985 F.2d 94, 99–100 (2d Cir.1993) (quoting 2A Moore's
Federal Practice ¶ 8.17[6], at 8–109 to 8–110 (2d ed. 1992)).
Even though pro se complaints are read very broadly under
Haines, the Court is nevertheless limited to addressing the
face of a pleading. Goldman v. Belden, 754 F.2d 1059
(2d Cir.1985). A claim of conspiracy between defendant
detectives and defendant Channel 9 news reporter cannot be
inferred from the facts presented in the complaint, and the
complaint is dismissed as to this John Doe defendant.
Plaintiff's state law claims against defendant Doe are also
dismissed Under any reading of the complaint, these claims
can only be for assault, libel, or some other intentional tort.
The state law claims are subject to New York's one-year
statute of limitations for intentional torts, CPLR § 215, rather
than the three-year period for negligence actions or § 1983
claims. This period has clearly expired as to all claims against
Doe. Accordingly, the complaint is dismissed as to defendant
Doe.
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*7 For similar reasons, plaintiff's motion to amend the
complaint is also denied. The amendment seeks to name
Channel 9 Broadcasting Systems and others as defendants
in a slander or libel action. These actions are also subject
to the one-year statute of limitations. Since the proposed
amendment would be futile, plaintiff's motion is denied.
Natasha Bailey
Natasha Bailey is represented by her father, plaintiff John
Bailey. Under the Federal Rules of Civil Procedure, capacity
to sue is determined by the law of the state in which the district
court is held. Fed.R.Civ.P. 17(b). Rule 17(b) reads in relevant
part: “The capacity of an individual, other than one acting in a
representative capacity, to sue or be sued shall be determined
by the law of the individual's domicile ... [i]n all other cases
capacity to sue or be sued shall be determined by the law of the
state in which the district court is held....” Wright and Miller
comment on this rule, noting that state law determines the
capacity of the guardian as well as the plaintiff: “[a]s has been
seen in the preceding sections, the first two sentences of Rule
17(b) deal with an individual suing on his own behalf and with
the capacity of corporations. The third sentence of the rule
provides that in all other cases capacity to sue or be sued is
to be determined by the law of the state in which the district
court is held. This portion of the rule applies principally
to individuals who are suing in a representative capacity,
including executors and administrators, guardians, trustees,
and receivers appointed by a state court.” Wright & Miller,
Federal Practice and Procedure: Civil § 1565. Under New
York law, an infant 5 cannot prosecute an action in person.
The Federal Rules of Civil Procedure allow a representative
to sue on behalf of an infant. Fed.R.Civ.P. 17(c). However
under New York law the infant must appear by a parent who
has “legal custody” 6 or guardian ad litem. “Unless the court
appoints a guardian ad litem, an infant shall appear by the
guardian of his property or, if there is no such guardian,
by a parent having legal custody, or, if there is no such
parent by another person or agency having legal custody....”
N.Y.Civ.Prac.L. & R. 1201 (McKinney 1995). To have legal
custody, a parent must have physical custody. Otero on Behalf
of Otero v. State, 159 Misc.2d 35, 602 N.Y.S.2d 501, 502
(1993). An incarcerated parent cannot have legal custody
and therefore may not bring suit on behalf of an infant. Id.
at 502. Since plaintiff John Bailey is currently incarcerated
at Franklin Correctional Facility in Malone, N.Y., he is not
competent to bring this action on his daughter's behalf. 7
For the foregoing reasons defendant Channel 9 news reporter
“John Doe's” motion to dismiss is granted. Plaintiffs' claims
against the defendant detectives arising out of their testimony
at his trial or from the alleged filing of false police reports are
also dismissed. Plaintiff's motion to amend the complaint is
denied. The claims on behalf of Natasha Bailey are dismissed
without prejudice. Plaintiff's applications for appointment
of pro bono counsel are denied subject to renewal upon a
showing sufficient to permit the determination required by
Cooper v. S. Sargenti Co., Inc., 877 F.2d 170 (2d Cir.1989),
concerning the merits of the case.
*8 The Clerk is directed to mail a copy of the within to all
parties.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 548714
Footnotes
1 Though “John Doe” is not specifically identified in the complaint, process was served on Channel 9 at their
offices at 445 Park Avenue, New York City, and was accepted by a person named Brenda Woodman. This
Court has received a motion and supporting affidavit filed by attorneys for WWOR (Channel 9) on behalf of
“John Doe.” The affidavit states that “Defendant ‘John Doe,’ Channel 9 News Reporter, respectfully requests
that this court dismiss plaintiff's Complaint.” The defendant has not raised objections to either service or
personal jurisdiction but, instead, to subject matter and to the merits of the case. By filing this motion, then,
he has consented to personal jurisdiction.
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2 The statute reads in pertinent part: “Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, or the District of Columbia subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceedings for redress.” 42 U.S.C. § 1983 (1988).
3 “(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced
by any person: ...
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom
or usage, of any right, privilege or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of
the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for
the protection of civil rights, including the right to vote.”
4 The Court declines to consider the instant complaint as a habeas petition under 18 U.S.C. § 2254, because
it is impossible to determine whether the claims were properly exhausted. If Bailey intends to seek habeas
relief, he should file an appropriate petition.
5 An infant is defined as a “person who has not attained the age of eighteen years.” N.Y.Civ.Prac.L. & R. 105
(McKinney 1994).
6 See Villafane v. Banner, 87 Misc.2d 1037, 387 N.Y.S.2d 183 (1976).
7 Generally, no statute of limitations will run against an infant until he or she attains the age of 18, the age of
majority in New York. Section 208 of the NYCPLR in pertinent part reads, “If a person entitled to commence
an action is under a disability because of infancy or insanity at the time the cause of action accrues, and
the time otherwise limited for commencing the action is three years or more and expires no later than three
years after the disability ceases, or the person under disability dies, the time within which the action must
be commenced shall be extended to three years after the disability ceases or the person under the disability
dies....” However, in an action for personal injuries sustained by the infant, the statute of limitations does not
bar the adult representative from bringing suit on behalf of the infant. Hilburger v. Cottman, 196 Misc. 106, 91
N.Y.S.2d 721 (1949) (“to compel an infant ... to await h[er] majority before bringing an action because [s]he
had failed to act within the generally prescribed statutory period would create an anomalous situation ... an
infant's right of action is continuing and suit may be brought at any time during his minority.”). Here, since John
Bailey cannot legally represent Natasha because of his incarceration, another representative is required.
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2026 WL 171909
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Tamesha N. BOYD, Plaintiff,
v.
The Corporation of the State of
NEW YORK et al, Defendants.
1:25-CV-169 (LEK/MJK)
|
Signed January 22, 2026
Attorneys and Law Firms
Tamesha Nicole Boyd, Albany, NY, Pro Se.
Erin P. Mead, Office of the Attorney General, Albany, NY, for
Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 On February 6, 2025, pro se Plaintiff Tamesha Boyd
(“Plaintiff”) commenced this action against Defendants
the State of New York, 1 Governor Kathy Hochul, the
New York Department of Motor Vehicles, Division of
Field Investigations (“DMV”), the DMV Commissioner,
Katrina Turner, and Doe Union and/or Insurance Company
Defendants, alleging, inter alia, violations of the Fourteenth
Amendment's Due Process Clause, the Americans with
Disabilities Act (“ADA”), and the New York State Human
Rights Law (NYSHRL). Dkt. No. 1 (“Complaint”).
On June 30, 2025, Defendants filed a motion to dismiss the
Complaint. Dkt. No. 28 (“Motion”). Plaintiff filed a response,
Dkt. No. 31 (“Response”), and Defendants filed a reply, Dkt.
No. 32.
For the reasons that follow, Defendants’ motion to dismiss is
granted in part, and denied in part.
II. BACKGROUND
The following facts are set forth as alleged in Plaintiff's
Complaint, her Response, and the exhibits attached to it.
Plaintiff is an African-American woman with a disability,
who, “at all relevant times, was employed by the [DMV].” See
Compl. at 2, 12. She alleges “a pattern of racial and disability
discrimination, retaliation, defamation, and violation of [her]
constitutional rights .... perpetrated by the [DMV], various
[DMV] employees ..., and governmental institutions tasked
with providing access to justice.” Id. at 4.
Outside of work, Plaintiff writes under the pseudonym,
Zalaina Carpenter, “to safeguard [her] privacy, freedom of
expression, and mental health.” Id. She alleges her supervisor,
Katrina Turner, and “others in [her] workplace, misuse[d]
and misinterpret[ed]... [her] personal writings under the
pseudonym.” Id. at 5. Plaintiff says, “that in the work place it
seemed [she] was ‘defamed’ ” because of the personal views
she expressed on “issues of racial discrimination, identity,
and self-expression.” Id. Turner “retaliated against [her]”
by spreading defamatory statements about Plaintiff amongst
colleagues, excluding her from career opportunities, creating
a hostile work environment where Plaintiff felt unwanted and
“discriminated against due to racial biases,” and telling her
to “utilize the team email set up to communicate with [her]
co workers and to share work related ‘content’ to complete[ ]
work task[s]!” Id. at 5–6. Plaintiff believes this was done in
“bad faith” and that Turner's statements subjected her to the
“false beliefs that [she], as a Black woman, was somehow
unprofessional or unworthy of the opportunities others were
afforded.” Id. at 6–7.
Later, after recovering from an illness, Plaintiff was further
subjected to “retaliation and a hostile work environment.”
Id. at 9. Plaintiff overheard her colleagues “suggesting [she]
was a racist” and mention she “would be fired soon.” Id. at
10. Moreover, on several occasions Plaintiff was “subjected
to verbal abuse” by Turner and explains that she felt Turner
“deflected” Plaintiff's concerns. Id.
*2 Plaintiff further alleges “the DMV and its employees
have deprived [her] of [her] 14th Amendment right to equal
protection of the laws.” Id. at 9. She explains that the
DMV maintains a practice of “including racial profiling,
discriminatory treatment, and defamation” that has “hindered
[her] ability to perform [her] job.” Id. Plaintiff attempted
to “facilitate a complaint from the Equal Employment
Opportunity Commission (EEOC) and other governmental
institutions” but they failed to “investigate or adequately
address [her] complaints of discrimination and retaliation.”
Id. at 10–11.
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Finally, Plaintiff alleges Turner denied her reasonable
accommodations under the ADA. Id. at 9, 12, 14–15. Plaintiff
is the “mother of a disabled child, [who] requested reasonable
accommodations to attend necessary meetings regarding [her]
child's education.” Id. at 14–15. Turner's denial of Plaintiff's
accommodations caused her “additional stress and harm.” Id.
at 15.
Plaintiff requests $100,000,000.00 in compensatory and
punitive damages and injunctive relief in the form of, inter
alia, requiring the EEOC and other government agencies
to “reform their processes [in order to] ensure adequate
protection for individuals who experience discrimination
and retaliation.” Id. at 23. She also requests the Court
engage in ‘Systemic Reforms,’ including a Court ordered
“implementation of anti-retaliation policies for employees
with disabilities.’ Id.
Courts in the Second Circuit are required to show special
solicitude to pro se litigants, especially those raising civil
rights claims, as Plaintiff does here. Tracy v. Freshwater, 623
F.3d 90, 102 (2d Cir. 2010) (citing Davis v. Goord, 320 F.3d
346, 350 (2d Cir.2003)). As best the Court can understand,
Plaintiff brings the following claims for relief: 1) employment
discrimination claims against all Defendants pursuant to
42 U.S.C. § 1981 (“Section 1981”), 2) employment
discrimination and hostile work environment claims against
all Defendants pursuant to 42 U.S.C. § 1983 (“Section 1983”),
3) ADA failure to accommodate, employment discrimination,
and retaliations claims against all Defendants, 4) Title VII
claims for racial discrimination, retaliation, and hostile work
environment against all Defendants, 5) state law Defamation
claims against all Defendants, 6) NYSHRL claims against
all Defendants for discriminatory practices, 7) Intentional
Infliction of Emotion Distress against all Defendants, and
8) a state law Negligence claim against Katrina Turner. See
Compl. at 7, 9–16. 2
III. LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), 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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A court must accept as true the
factual allegations contained in a complaint and draw all
inferences in favor of a plaintiff. See Allaire Corp. v. Okumus,
433 F.3d 248, 249–50 (2d Cir. 2006). A complaint may be
dismissed pursuant to Rule 12(b)(6) only where it appears that
there are not “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Plausibility
requires “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of [the alleged misconduct].”
Id. at 556.
*3 The plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). The Supreme
Court has stated that “the pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. (citing 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
pleader has not demonstrated that she is entitled to relief and
the action is subject to dismissal. Id. at 679.
Where, as here, a plaintiff proceeds pro se, the court must
“construe the complaint broadly, and interpret it to raise the
strongest arguments that it suggests.” Weixel v. Bd. of Educ.
of City of N.Y., 287 F.3d 138, 146 (2d Cir. 2002) (cleaned up).
Nevertheless, “dismissal of a pro se complaint is...appropriate
where a plaintiff has clearly failed to meet the minimum
pleading requirements.” Rahman v. Schriro, 22 F.Supp.3d
305, 310 (S.D.N.Y. 2014) (citing Rodriguez v. Weprin, 116
F.3d 62, 65 (2d Cir. 1997)). The Court's “duty to liberally
construe a plaintiff's complaint is not the equivalent of a duty
to re-write it.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d
379, 387 (S.D.N.Y. 2009) (cleaned up).
When ruling on a Rule 12(b)(6) motion, “a district court
must confine its consideration to facts stated on the face of
the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” Leonard F. v. Isr.
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal
quotations omitted). However, for pro se plaintiffs, the Court
may consider “materials outside the complaint to the extent
that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at
*4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotations omitted),
including, “documents that a pro se litigant attaches to his
opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010
WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010), “factual
allegations made by a pro se party in his papers opposing
the motion,” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir.
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2013), and “documents that the plaintiff[ ] either possessed
or knew about and upon which [he or she] relied in bringing
the suit,” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
Finally, “the sufficiency of a complaint is a matter of law that
the court is capable of determining based on its own reading
of the pleading and knowledge of the law.” McCall v. Pataki,
232 F.3d 321, 322–23 (2d Cir. 2000).
IV. DISCUSSION
A. Federal Law Claims
Plaintiff's federal claims for relief suffer from several
pleading deficiencies. The Court addresses each in turn.
1. Sovereign Immunity
Defendants aver that Plaintiff's claims against the State
of New York, the DMV, and the individual Defendants
in their official capacity should be dismissed on Eleventh
Amendment grounds. Mot. at 8–11. The Court agrees.
The Eleventh Amendment bars a citizen from bringing a
suit against her own state in federal court. See U.S. Const.
amend. XI. The Eleventh Amendment also immunizes States
against suits for damages against state officials acting in their
official capacities. Kentucky v. Graham, 473 U.S. 159, 169
(1985); see also Keles v. Davalos, 642 F. Supp. 3d 339,
359 (E.D.N.Y. 2022) (explaining that Section 1983 official
capacity suits are considered “de facto monetary suits against
the state and are barred by sovereign immunity.”) (internal
quotations omitted). “This immunity extends to ‘... state
instrumentalities.’ ” Clark v. Schroeder, 847 F. App'x 92, 94
(2d Cir. 2021) (citing Regents of Univ. of Cal. v. Doe, 519
U.S. 425, 429–30 (1997)). The DMV, of course, is a state
instrumentality. See Feingold v. New York, 366 F.3d 138, 149
(2d Cir. 2004).
*4 Eleventh Amendment immunity is lost only if Congress
unequivocally abrogates states’ immunity or a state expressly
consents to suit. See Gollomp v. Spitzer, 568 F.3d 355, 365–
66 (2d Cir. 2009). It is well-settled that Congress did not
abrogate states’ sovereign immunity through Section 1983.
See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (“There can
be no doubt, however, that [a Section 1983] suit against the
State ... is barred by the Eleventh Amendment.”). Moreover,
New York has not waived its immunity from suit on the claims
for monetary damages asserted in the Complaint. See Trotman
v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38–40 (2d
Cir. 1977).
Therefore, as an initial matter, all of Plaintiff's claims against
New York State, the DMV, and the individual Defendants in
their official capacities, are clearly barred by the Eleventh
Amendment and are dismissed with prejudice. 3
Plaintiff “invoke[s] Ex Parte Young” in her Complaint as a
means of “addressing violations committed by state officials,
including the Governor and other related parties, in their
official capacity.” Compl. at 15. Ex Parte Young, 209 U.S.
123 (1908), is indeed a “ ‘well-known exception’ to Eleventh
Amendment immunity.” Clark, 847 F. App'x at 94. The
exception allows for “prospective injunctive relief against
state officers sued in their official capacity.” Id. (citing Vega
v. Semple, 963 F.3d 259, 281 (2d Cir. 2020)).
However, Plaintiff's invocation of Ex Parte Young is patently
erroneous. Ex Parte Young only allows for prospective
relief against state officials, not state agencies. See Silva
v. Farrish, 47 F.4th 78, 84 (2d Cir. 2022). Therefore, the
limited exception the Supreme Court recognized in Ex Parte
Young is inapplicable as against both the DMV and New
York State. See Clark, 847 F. App'x at 93–94. And to the
extent Plaintiff identifies “prospective injunctive relief” 4
against the DMV's Commissioner, Governor Hochul, or Ms.
Turner, any argument for future relief would fail because
Plaintiff lacks the standing to do so. See Cozayatl Sampedro
v. Schriro, 377 F. Supp. 3d 133, 145 (D. Conn. 2019) (“To
have standing to seek an injunction, Mr. Sampedro ‘must
assert a likelihood that [he] will be subjected to a similar
[constitutional] violation in the future.’ ”) (citations omitted).
Plaintiff is neither employed by the DMV, nor does she seek
reinstatement, and thus lacks standing to seek such relief.
Compare Compl. at 11, 13 with Cassells v. Univ. Hosp. at
Stony Brook, No. 86-CV-698, 1987 WL 3717, at *3 (E.D.N.Y.
Jan. 12, 1987) (“[P]laintiff, as a former employee, can no
longer benefit from any prospective injunctive relief the court
might grant, and thus she does not have standing.”) (citing
Simon v. Eastern Kentucky Welfare Rights Organization, 426
U.S. 26, 43 (1976)). Accordingly, because Plaintiff lacks
standing, any claims she has for prospective injunctive relief
are also dismissed with prejudice.
*5 In sum, Plaintiff's claims for damages and any claims
for prospective injunctive relief against New York State, the
DMV, and the individual Defendants in their official capacity,
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are barred on sovereign immunity grounds and dismissed with
prejudice.
2. Personal Involvement
Further, Defendants argue that any Section 1981 or 1983
claims must be dismissed against Governor Hochul and the
DMV Commissioner for lack of personal involvement. See
Mot. at 28.
“An individual may be held liable under §§ 1981 and 1983
only if that individual is ‘personally involved in the alleged
deprivation.’ ” Littlejohn v. City of New York, 795 F.3d 297,
314 (2d Cir. 2015) (quoting Back v. Hastings On Hudson
Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (for
Section 1983 claims)); Patterson v. Cnty. of Oneida, 375 F.3d
206, 229 (2d Cir.2004) (for Section 1981 claims). A plaintiff
can establish personal involvement by demonstrating either
that:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report
or appeal, failed to remedy the
wrong, (3) the defendant created
a policy or custom under which
unconstitutional practices occurred, or
allowed the continuance of such a
policy or custom, (4) the defendant
was grossly negligent in supervising
subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference ...
by failing to act on information
indicating that unconstitutional acts
were occurring.
Littlejohn, 795 F.3d at 314 (citing Back, 365 F.3d at 127).
The Court notes that it is unclear whether Plaintiff seeks to sue
the individual Defendants in their individual capacity or their
official capacity. In the Complaint, Plaintiff appears to sue the
Governor and DMV Commissioner in their official capacities
only, while she sues Ms. Turner in both her individual and
official capacity. See Compl. at 2–3. In her Response however,
Plaintiff seems to amend her allegations to include a suit
against the Governor and the DMV Commissioner in their
individual capacities as well. See Resp. at 1, 6, 9, 13; Dkt.
No. 31-1 at 2. Therefore, Plaintiff's pro se status, and the
special solicitude owed to pro se litigants in this Circuit
and because “individual-and official-capacity claims are not
mutually exclusive,” Rodriguez v. City of Rochester, 624 F.
App'x 16, 18 (2d Cir. 2015), the Court will assume Plaintiff
intended to sue the Governor and the DMV commissioner in
their individual capacities as well. 5
*6 Plaintiff fails to allege any plausible theory that either
the Governor or the DMV Commissioner were personally
involved in the actions alleged in the Complaint. See
generally Compl. Instead, the Complaint merely cites the state
officials in the case caption, and as parties to the Complaint,
but is otherwise bereft of the “tangible connection” the
law requires to establish liability for even supervisory
officials. See Burrell v. DOCCS, 655 F. Supp. 3d 112, 124
(N.D.N.Y. 2023) (quoting Bass v. Jackson, 790 F.2d 260, 263
(2d Cir. 1986); Tangreti v. Bachmann, 983 F.3d 609, 618
(2d Cir. 2020)). “[A] plaintiff must plead and prove ‘that
each Government-official defendant, [including supervisors,]
through the official's own individual actions, has violated the
Constitution.’ ” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556
U.S. at 676).
Accordingly, Plaintiff's claims against the Governor and
the DMV Commissioner are dismissed for lack of personal
involvement. See Cipriani v. Buffardi, No. 06-CV-889, 2007
WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is
appropriate where a defendant is listed in the caption, but the
body of the complaint fails to indicate what the defendant did
to the plaintiff.”). 6
3. Title VII
Plaintiff brings Title VII retaliation, hostile work
environment, and discrimination claims against New York
State, the DMV, and the individual Defendants in their official
and personal capacities. Compl. at 9, 12. Defendants aver,
inter alia, that this Court has cannot hear Plaintiff's Title VII
claims because she has not received a “right to sue” letter
from the EEOC and therefore her claims should be dismissed.
See Mot. at 11–13. Defendants further aver that by Plaintiff's
failing to rebut these arguments, they are entitled to dismissal
of her original claims. Reply at 3–4 (citing Lopez v. Wright,
2007 WL 388919 *1–2 (N.D.N.Y. 2007)).
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After carefully considering the matter, the Court agrees with
Defendants on this latter point. “Plaintiff had due notice of
[her] duty to oppose such legal arguments if [s]he wished
them to be considered by the Court as challenged.” Johnson
v. Lew, No. 13-CV-1072, 2015 WL 4496363, at *5 (N.D.N.Y.
July 23, 2015); see also Dkt. No. 3; NDNY L.R. 7.1(b)(3).
“In this District, when a non-movant willfully fails to oppose
a legal argument asserted by a movant, the movant's burden
with regard to that argument is lightened, such that, in order
to succeed on that argument, the movant need only show
that the argument possess facial merit.” Id. This burden is
a “modest” one. Id. “Here, the Court finds that Defendants
have, at the very least, met this lightened burden with regard
to these arguments.” Id. However, the Court will make three
observations:
a. Failure to Exhaust
The Court agrees with Defendants that this Court cannot hear
Plaintiff's Title VII claims without a “Right to Sue” letter from
the EEOC. 42 USC § 2000e-5. “There are two prerequisites
for filing a Title VII action in federal court; plaintiff must
(1) file a timely charge of employment discrimination with
the EEOC and (2) receive a notice of the right-to-sue letter.”
Coleman v. Board of Educ., No. 96-CV-4293, 2002 WL
63555, at *3 (S.D.N.Y. Jan. 15, 2002). Plaintiff has not alleged
that she has fulfilled either requirement here, and therefore
these claims are subject to dismissal for failure to exhaust
pursuant to 42 USC § 2000e—5.
b. Liability under Title VII
*7 Moreover, Plaintiff's Title VII claims as against the
individual Defendants and New York State cannot survive.
As to the former, Title VII does not provide for individual
liability, and therefore any of Plaintiff's claims against the
individual Defendants cannot survive. Smith v. New York
City Hous. Auth., No. 25-CV-283, 2025 WL 1031063, at
*2 (E.D.N.Y. Apr. 7, 2025) (“Title VII does not provide
for individual liability; rather, only the employer may be
named.”) (citing Patterson v. County of Oneida, 375 F.3d 206,
221 (2d Cir. 2004). As to the latter, Plaintiff has not alleged
that New York State is her employer in any meaningful sense,
and so “Plaintiff's Title VII claim must be dismissed against
the State of New York.” Trostle v. State of New York, No.
13-CV-0709, 2016 WL 1175215, at *7 (N.D.N.Y. Mar. 24,
2016) (collecting cases); La Martina v. Fischer, No. 12-
CV-308, 2013 WL 1682603, at *5 (W.D.N.Y. Mar. 19, 2013),
report and recommendation adopted, No. 12-CV-308, 2013
WL 1681492 (W.D.N.Y. Apr. 17, 2013) (“[C]ases decided
within the Second Circuit have held that the State is not a
proper defendant in Title VII actions brought by employees
of various other state agencies.”).
c. Failure to State a Claim Against the DMV
Had Plaintiff properly exhausted her claims, her Complaint as
it stands still fails to plausibly allege a theory of retaliation,
hostile work environment, or discrimination under Title
VII against the DMV. Plaintiff alleges she was retaliated
against for expressing her “personal experiences in writing,
dealing with issues of racial discrimination, identity, and
self-expression,” Compl. at 5, but does not explain the
nature of the protected nature of these writings, or any
cognizable adverse employment action taken because of that
activity. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)
(detailing cognizable adverse employment actions, including
“termination of employment, a demotion evidenced by a
decrease in wage or salary, [or] a less distinguished title ....”).
Marshall v. Nat'l Assoc. of Letter Carriers Br. 36, No. 00-
CIV-3167, 2003 WL 223563, at *9 (S.D.N.Y. Feb. 3, 2003)
(dismissing a complaint because it “fail[ed] to connect the
alleged retaliation to any activity directed at the enforcement
of rights protected by Title VII.”).
Further, Plaintiff alleges that she felt “discriminated against
due to racial biases,” targeted for her expression, heard
someone say she “would be fired soon,” that her colleagues
suggested she “was a racist without justification,” and that
she was subject to verbal abuse by her supervisor. Compl. at
6, 9–10. But again, states no facts to support a claim against
the DMV for a hostile work environment leaving the claim
subject to dismissal. Boza-Meade v. Rochester Hous. Auth.,
170 F. Supp. 3d 535, 547 (W.D.N.Y. 2016) (dismissing a
hostile work environment claim where plaintiff made “vague
allegations that co-workers made fun of her ..., with no
additional supporting factual information as to the context and
frequency of this conduct.”); Nugent v. St. Lukes-Roosevelt
Hosp. Ctr., 303 F. App'x 943, 945 (2d Cir. 2008) (dismissing
a hostile work environment claim because “derogatory
language,” “dismissive comments by management,” and
“intense scrutiny” of an employee are “insufficiently severe
and pervasive” to state a claim for relief); see also Alvarado
v. Mount Pleasant Cottage Sch. Dist., 404 F. Supp. 3d 763,
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781–82 (S.D.N.Y. 2019) (explaining that Title VII “does
‘not prohibit employers from maintaining nasty, unpleasant
workplaces, or even ones that are unpleasant for reasons that
are due to the protected characteristic.’ ”) (quoting Carrington
v. Mota, 16-CV-8061, 2017 WL 3835883, at *12 (S.D.N.Y.
Aug. 31, 2017)).
Finally, any racial discrimination claims under Title VII that
Plaintiff may be alleging, Compl. at 5–7. 9–10, must fail
because she provides no facts to infer discriminatory intent
on behalf of her employer. Oliver Cyrus v. Lockheed Martin
Corp., No. 22-CV-4115, 2025 WL 964016, at *8 (E.D.N.Y.
Mar. 31, 2025), reconsideration denied sub nom. Cyrus v.
Lockheed Martin Corp., No. 22-CV-4115, 2025 WL 1638056
(E.D.N.Y. May 9, 2025) (dismissing a racial discrimination
claim under Title VII because “[t]he plaintiff does not allege
that any defendant referred to her race, criticized her work
‘in ethnically degrading terms,’ or made ‘invidious comments
about others in the employee's protected group.’ ”) (citing
Tieu v. New York City Econ. Dev. Corp., 717 F. Supp. 3d 305,
321–22 (S.D.N.Y. 2024)).
4. ADA
*8 Plaintiff brings discrimination, retaliation, and failure to
accommodate claims under the ADA against all Defendants
for the actions alleged in the Complaint. Compl. at 9–15.
To the extent she alleges ADA discrimination and retaliation
claims, they rely on largely the same theory as her Title VII
claims against the DMV. Id. at 6–7, 9–15. As to her failure
to accommodate claims, she brings these on behalf of herself
and her disabled son. Id. at 12, 14–15. But, as Defendants
correctly note, Plaintiff's employment discrimination and
retaliation ADA claims cannot proceed against New York
State, the DMV, or any of the individual Defendants. See Mot.
at 29–30; Yerdon v. Poitras, 120 F.4th 1150, 1153–55 (2d Cir.
2024) (explaining that ADA claims brought under either Title
I or Title V are barred against the DMV and state officials
acting in their official capacity); id. at 1155–57 (explaining
that “neither Title I nor Title V of the ADA permits claims
against individual[s]”). Thus, the only remaining claim would
be Plaintiff's failure to accommodate claim. But this too must
fail because Plaintiff has simply alleged no facts to support it.
a. Failure to Accommodate Plaintiff's Disability
Defendants aver that Plaintiff cannot establish she was
disabled as defined by the ADA. See Mot. at 31.
“To establish a prima facie [failure to accommodate] case
under the ADA, a plaintiff must show by a preponderance
of the evidence that: (1) [her] employer is subject to the
ADA; (2) [s]he was disabled within the meaning of the
ADA; (3) [s]he was otherwise qualified to perform the
essential functions of his job, with or without reasonable
accommodation; and (4) ... [her] employer refused to make
a reasonable accommodation.”
Tudor v. Whitehall Cent. Sch. Dist., 132 F.4th 242, 246 (2d
Cir. 2025) (emphasis omitted) (quoting Woolf v. Strada, 949
F.3d 89, 93 (2d Cir. 2020) (per curiam)).
After carefully reviewing the Complaint, the Court agrees
with Defendants that it is “devoid of any allegation that
Plaintiff is disabled within the meaning of the ADA.” Mot.
at 31. Plaintiff does not explain her specific disability, how
it qualifies as a disability within the ADA. or describe the
“reasonable accommodations” she sought for herself. See
generally Compl. Rather, Plaintiff merely describes herself as
a “disabled individual.” See, e.g., id. at 16; Resp. at 11 (“I am
not just any citizen: I am a disabled professional leader.”)
(emphasis in original). These statements are conclusory and
thus do not state a claim for relief, let alone a plausible one.
Tillman v. New York City Dep't of Hum. Res. Admin., No.
22-872-CV, 2023 WL 2770218, at *2 (2d Cir. Apr. 4, 2023).
b. Plaintiff's Associational Discrimination Claim
Plaintiff also alleges the Defendants failed to accommodate
her “reasonable accommodations to attend necessary
meetings regarding [her] child's education.” Compl. at 14–15.
Defendants aver this fails to state a disability discrimination
claim under the ADA. See Mot. at 31. The Court agrees.
To state a claim for associational discrimination under the
ADA, a plaintiff must allege: “1) that she was qualified for
the job at the time of an adverse employment action; 2) that
she was subjected to adverse employment action; 3) that
she was known at the time to have a relative or associate
with a disability; and 4) that the adverse employment
action occurred under circumstances raising a reasonable
inference that the disability of the relative or associate was
a determining factor in the employer's decision.”
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Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir.
2016).
Plaintiff's Complaint fails to allege any elements of an
associational discrimination claim. Specifically, as described
supra Part IV (A)(3)(c), Plaintiff does not describe any
adverse employment action taken against her, or moreover,
that anyone's disability was the reason for that action, see
generally Compl. Therefore, this claim must be dismissed.
5. Section 1981
Plaintiff brings a Section 1981 damages claim against all
Defendants for “subjecting Plaintiff to discriminatory actions
and harassment based on race and disability.” Compl. at 11–
12. Defendants argue that Plaintiff's Section 1981 claims
should be dismissed because, inter alia, Section 1983
provides the constitutional remedy she seeks. Mot. at 22–26.
The Court agrees.
*9 In Duplan, the Second Circuit held that Section 1981
claims against state actors are barred because “[Section] 1983
already provides a remedy against state actors.” Duplan,
888 F.3d 612, 620–21 (2d Cir. 2018). Thus, a Section 1981
claim against New York State, the DMV, and the individual
Defendants (in either their individual or official capacities)
“would not be the appropriate vehicle for suit, and such claims
must be dismissed.” Perry v. Clement, No. 23-CV-1573, 2025
WL 2592189, at *6 (N.D.N.Y. Sept. 8, 2025); see also Jett v.
Dallas Independent School District, 491 U.S. 701, 733 (1989)
(explaining that “the express cause of action for damages
created by [Section] 1983 constitutes the exclusive federal
remedy for violation of the rights guaranteed in [Section] 1981
by state governmental units.”); Gonzalez v. City of New York,
377 F. Supp. 3d 273, 285 (S.D.N.Y. 2019) (“The Supreme
Court's holding in Jett has been interpreted to encompass not
only governmental entities, but also individuals sued in their
individual capacities who are also state actors.”). 7
Given Plaintiff's pro se status, the Court will construe
Plaintiff's Section 1981 claims as Section 1983 claims against
all Defendants. In re New York City Dep't of Educ., No. 15-
CV-7150, 2019 WL 1433163, at *5 (S.D.N.Y. Mar. 29, 2019)
(“Following the Second Circuit's approach in Duplan, the
Court will construe the [Section] 1981 claims as causes of
action brought under [Section] 1983.”) (collecting cases).
6. Section 1983
Defendants move to dismiss Plaintiff's Section 1983 claims
because they are either barred by sovereign immunity or
otherwise fail to state a claim. Mot. at 26–29.
The Court observes it might be helpful to identify which of
the Defendants is subject to liability under Section 1983 given
the procedural bars to Plaintiff's claims. First, any Section
1983 claims against New York State, the DMV, or any of
the Defendants in their official capacity must fail because
they are clearly barred by sovereign immunity. See supra
Part IV(A)(1). Moreover, Plaintiff cannot seek prospective
injunctive relief because she no longer works at the DMV, nor
does she seek reinstatement. Id. Finally, based on the analysis
supra Part IV(A)(2), Plaintiff's Complaint is currently devoid
of any facts which allege that either the Governor or the
DMV Commissioner were personally involved in her alleged
constitutional violation. Thus, the only viable Defendant to
whom a Plaintiff's Section 1983 claims might apply is Ms.
Turner. But those too must fail.
a. First Amendment Claim
Construed liberally, Plaintiff's allegations raise a First
Amendment retaliation claim against Ms. Turner. Compl. at 8.
“The speech of a public employee is protected by the
First Amendment when the employee speaks as a citizen
on a matter of public concern, rather than pursuant to his
employment responsibilities.” Specht v. City of New York, 15
F.4th 594, 600 (2d Cir. 2021) (citing Garcetti v. Ceballos,
547 U.S. 410, 420–21 (2006)). To state a claim for relief,
a Plaintiff must allege that they have (1) “engaged in
protected First Amendment activity; (2) ... suffered an adverse
employment action, and (3) there was a causal connection
between the protected activity and the adverse employment
action.” Smith v. County of Suffolk, 776 F.3d 114, 118 (2d
Cir. 2015). “Speech deals with matters of public concern
when it can be fairly considered as relating to matters of
political, social, or general interest to the community or
value and concern to the public.” Specht v. City of New
York, 15 F.4th 594, 600 (2d Cir. 2021) (citing Snyder v.
Phelps, 562 U.S. 443, 453 (2011)). Courts “consider the
motive of the speaker, cognizant that ‘speech on a purely
private matter does not pertain to a matter of public concern’
and, conversely, that an individual motivated by a personal
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grievance can simultaneously speak on a matter affecting the
public at large.” Golodner v. Berliner, 770 F.3d 196, 203 (2d
Cir. 2014) (cleaned up).
*10 Defendants aver Plaintiff's claim fails because she has
not alleged that her speech was a matter of public concern or
that an adverse employment action was taken against Plaintiff
by Ms. Turner. Mot. at 32–34. Defendants further aver that by
failing to rebut these arguments, Plaintiff waives her original
claims. Reply at 7 (citing Lopez, 2007 WL 388919 *1–2
(N.D.N.Y. 2007)).
After carefully considering the matter, the Court agrees with
Defendants on this point, and for the same reasons set out
supra Part IV (A)(3), the Court finds that Defendants have
met their burden with regard to these arguments. Accordingly,
Plaintiff's First Amendment claim is dismissed.
b. Equal Protection Claims
Plaintiff also alleges Fourteenth Amendment Equal
Protection claims against Ms. Turner for, inter alia, “racial
discrimination or creating a hostile work environment based
on race, ethnicity, or other protected characteristics.” Compl.
at 9. Defendants, in turn, argue that Plaintiff's Equal
Protection claims against Ms. Turner (the facts of which are
nearly identical to her Title VII claims) must fail because,
among other things, they are premised on the same actions
underlying her Title VII claims. See Mot. at 28–29 (citing
McBeth v. City of New York, No. 23-CV-10389, 2025 WL
951439, at *4 (S.D.N.Y. Mar. 28, 2025)); supra Part IV (A)
(3). Moreover, in their Reply, they aver that Plaintiff has not
“address[ed] the validity of this claim” in her Response. Reply
at 6.
Upon reviewing Plaintiff's Response to the Motion, and
carefully considering the matter, the Court agrees that
Plaintiff has failed to oppose Defendants’ argument for
dismissal on her Equal Protection claims. See generally
Resp.; Dkt. No 31-4. Although the Court did not reach the
merits of Plaintiff's Title VII claims due to a jurisdictional
defect, the Court explained supra Part IV (A)(3)(c) that
those claims would fail in any event because the Complaint
alleges only conclusory allegations. Here, Plaintiff's Equal
Protection claims rely on the same facts and suffer the
same pleading deficiencies. The Response does nothing
to dispute Defendants’ arguments that the Complaint fails
to plausibly allege facts that show “discrimination, hostile
work environment [or] retaliation” in violation of the Equal
Protection Clause. Mot. at 15–22, 28–29; Reply at 6. Instead,
Plaintiff's Response merely restates the same conclusory
allegations against Ms. Turner that Plaintiff made in her
Complaint – i.e., that Ms. Turner's “conduct contributed to
a hostile work environment and violated Plaintiff's rights
under the ADA” and that her “allegations are sufficient to
survive dismissal at the pleading stage.” Compare Dkt. No.
31-4 at 3 (emphasis in original and citations omitted) with
Compl. at 5–10.
Given the overlap in Defendants’ arguments against Plaintiff's
Title VII and Equal Protection claims, the fact that they
remain unrebutted in Plaintiff's Response, and that they are
indeed meritorious, the Court dismisses Plaintiff's Equal
Protection claim for the same reasons laid out above. Supra
Part IV (A)(3)(c); Johnson, 2015 WL 4496363, at *5.
B. State Law Claims
Given that the bases for this Court's federal question
jurisdiction have been disposed of, the Court will not exercise
supplemental jurisdiction over Plaintiff's state law claims. See
28 U.S.C. § 1367(c)(3) (stating that a district court “may
decline to exercise supplemental jurisdiction over [pendent
state law claims] if ... the district court has dismissed all
claims over which it has original jurisdiction”); McLeod
v. Jewish Guild for the Blind, 864 F.3d 154, 158 n.6 (2d
Cir. 2017) (“[A] district court may decline to exercise
supplemental jurisdiction over state and local law claims
if it has dismissed all claims over which it has original
jurisdiction.”).
*11 Accordingly, any state law claims Plaintiff wishes to
bring against Defendants are dismissed.
V. CONCLUSION
For the reasons stated above, Plaintiff's Complaint fails to
state a claim upon which relief can be granted. 8 However,
because Plaintiff proceeds pro se, and the Court cannot say
at this time that amendment would be futile as to certain
claims, limited leave to amend is appropriate, so long as it is
consistent with the case law outlined in this Memorandum-
Decision and Order.
Accordingly, it is hereby:
ORDERED, that Defendant's motion to dismiss, Dkt. No, 28,
is GRANTED in part and DENIED in part; and it is further
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ORDERED, that Plaintiff's complaint, Dkt. No. 1, is
DISMISSED with prejudice, as to: 1) any claims for
damages against New York State, Governor Hochul, in her
official capacity, Katrina Turner, in her official capacity, and
the DMV Commissioner, in their official capacity; 2) any
Title VII claims against New York State or the individual
Defendants; 3) any ADA discrimination, retaliation, and
failure to accommodate claims against New York State and
the individual Defendants; 5) any claims brought under
Section 1981; and 6) any Section 1983 claims brought against
New York State or any of the individual Defendants in their
official capacities; and it is further
ORDERED, that the remaining balance of Plaintiff's claims
are DISMISSED without prejudice; and it is further
ORDERED, that Defendant's motion to dismiss for
insufficient service of process as to Governor Hochul and
Katrina Turner, Dkt. No, 28, is DENIED as moot; and it is
further
ORDERED, that Plaintiff is granted leave to amend within
forty-five (45) days of the filing date of this Memorandum-
Decision and Order, solely to attempt to cure the deficiencies
identified herein with respect to: 1) her Title VII claim
against the DMV, provided she can allege exhaustion of
administrative remedies and sufficient factual matter to
state a plausible claim for relief; 2) her ADA reasonable-
accommodation claims on behalf of her and her son, provided
she can allege facts showing that: a) she is a qualified
individual with a disability within the meaning of the
ADA and that she sought and was denied a reasonable
accommodation; and/or b) that she sought a reasonable
accommodation on behalf of her disabled son and was
denied; 3) her Section 1983 claims against Ms. Turner in
her individual capacity, provided she can allege specific facts
showing that Ms. Turner personally participated in conduct
violating a clearly established constitutional right; and 4) her
state law claims, assuming Plaintiff adequately pleads the
aforementioned federal claims; and it is further
ORDERED, that if Plaintiff does not file an amended
complaint within forty-five (45) days of the date of this
Memorandum-Decision and Order, the Clerk shall enter
judgment dismissing this action with prejudice without
further order of the Court; and it is further
*12 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.
All Citations
Slip Copy, 2026 WL 171909
Footnotes
1 The Complaint's caption identifies “The Corporation of the STATE of NEW YORK” as a Defendant in this
action. Compl. at 1I. In an effort to grant Plaintiff the special solicitude owed pro se litigants the Court will
assume Plaintiff intended to sue the State of New York. The Clerk is directed to update the case caption
to reflect as such.
2 However, Plaintiff's vague allegations regarding violations of the “United Nations Convention on the Rights
of Persons with Disabilities,” the Sherman Antitrust Act, the Clayton Act, among others, stand on different
footing. See Compl. 18, 21. As to these claims, the Court is unable to discern any factual basis for them in
the Complaint, and therefore the Court will not consider them. Buxbaum v. Zillow Grp. Inc., No. 25-CV-2766,
2025 WL 1549017, at *1 (S.D.N.Y. May 30, 2025) (“The Court must dismiss a complaint, or any portion of
the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief, ‘[n]otwithstanding any filing fee ... that may
have been paid.’ ”) (citing 28 U.S.C. § 1915(e)(2)).
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3 This necessarily means that any of Plaintiff's claims brought under Section 1981 and 1983 as against the
Governor, DMV Commissioner, and Ms. Turner in their official capacities, see Compl. at 11–12; Resp. at 7, 9,
11, as the Court describes infra, must also fail. See Duplan v. City of New York, 888 F.3d 612, 620-21 (2d Cir.
2018) (explaining that Section 1981 “does not provide a separate private right of action against state actors.”);
Stephens v. New York State D.O.C.C.S., No. 25-CV-0473, 2025 WL 2377136, at *4 (N.D.N.Y. May 29, 2025)
(“To the extent that plaintiff seeks monetary damages for his § 1983 claims against [State instrumentalities]
or defendants in their official capacity, those claims are dismissed.”) (citing Richardson v. Nassau Cty., 277
F. Supp. 2d 196, 204 (E.D.N.Y. 2003)).
4 The Complaint seeks, inter alia, “[a]n order requiring the EEOC and other relevant governmental entities
to reform their processes to ensure adequate protection for individuals who experience discrimination and
retaliation.” Compl. at 23. The EEOC is not a Defendant in this case and it is unclear who the other “relevant
governmental entities” are that Plaintiff is referring to. See id. The Court lacks the power to compel a nonparty
to a suit to take action. Moody v. U.S. Equal Emp. Opportunity Comm'n, No. 24-CV-3320, 2025 WL 2549074,
at *2 (S.D.N.Y. Sept. 3, 2025) see also United States v. Paccione, 964 F.2d 1269, 1275 (2d Cir. 1992) (“[A]
court generally may not issue an order against a nonparty.”); Fed. R. Civ. P. 65(d)(2).
5 While the Court gives Plaintiff the benefit of the doubt regarding the status of her suit against the individual
Defendants in their official and individual capacities, the Court will not entertain the wholly new motions for
inquest, or new allegations regarding, inter alia, “Cyberstalking/Surveillance/[and] Data trafficking.” See, e.g.
Resp. at 9–11; Reply at 8–9. “[A] plaintiff[, even appearing pro se,] may not allege new facts and legal claims
in opposition to a motion to dismiss.” Helwing v. City of New York, No. 18-CV-3764, 2021 WL 781794, at *4
(E.D.N.Y. Mar. 1, 2021), aff'd sub nom. Helwing v. Pszeniczny, No. 21-843, 2022 WL 610341 (2d Cir. Mar.
2, 2022) (citing Wright v. Ernst Young LLP, 152 F. 3d 169, 178 (2d Cir. 1998)).
6 The Court notes this also applies to Plaintiff's claims against the Doe Union and/or Insurance company
Defendants. The Complaint is devoid of any facts as to these Defendants and thus they are subject to
dismissal.
7 Plaintiff's claim against the DMV here specifically fails because the Defendant is a state agency. Feingold,
366 F.3d at 149.
8 The Court acknowledges that Defendants’ Motion sought dismissal against Governor Hochul, and Ms. Turner
for insufficient service of process. Given the Court is dismissing Plaintiff's claims on other grounds, the Court
need not consider this argument. Moreover, because the Complaint is dismissed, the Court will not entertain
Plaintiff's request to change venue.
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Britt v. Doe, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 16579207
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Lowell J. BRITT; also known
as Lowell J. Britt, IV, Plaintiff,
v.
John DOE, State of New York; Jane Doe, State
of New York; John Doe, Broome County District
Attorney's Office; Jane Doe Broome County District
Attorney's Office; David Harder, Sheriff, Broome
County Sheriff's Dep't; Nicholas Miller, Sheriff,
Broome County Sheriff's Dep't; and Sheriff John
Doe, Broome County Sheriff's Dep't, Defendants.
3:22-CV-0692 (GLS/ML)
|
Signed October 13, 2022
Attorneys and Law Firms
LOWELL J. BRITT, Plaintiff, Pro Se, Orleans Correctional
Facility, 3531 Gaines Basin Road, Albion, New York 14411.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent this pro se Complaint (Dkt. No. 1)
together with an amended application to proceed in forma
pauperis (Dkt. No. 4) to the Court for review. For the reasons
discussed below (1) Plaintiff's amended motion for leave to
proceed in forma pauperis (Dkt. No. 4) is granted, and (2) I
recommend that his Complaint (Dkt. No. 1) be (a) accepted
in part for filing, and (b) dismissed in part (i) with leave to
amend, and (ii) without leave to amend.
I. BACKGROUND
Liberally construed, 1 Plaintiff's Complaint 2 asserts that his
rights were violated by the following seven defendants: (1)
John Doe, State of New York, 3 (2) Jane Doe, State of New
York, 4 (3) John Doe, Broome County District Attorney's
Office, (4) Jane Doe, Broome County District Attorney's
Office, (5) David Harder, Sheriff, Broome County Sheriff's
Department, (6) Nicholas Miller, Sheriff, Broome County
Sheriff's Department, and (7) Sheriff John Doe, Broome
County Sheriff's Department (collectively “Defendants”). 5
(See generally Dkt. No. 1.)
More specifically, Plaintiff alleges that he leased the property
located at 196-Twist Run Road, Endicott, New York (the
“Property”). (Dkt. No. 1 at 32.) Plaintiff alleges that on July
15, 2021, at approximately 1:00 p.m., he was at the Property
with his two minor children when two Broome County
Sheriff's Department deputies (Defendant Sheriff John Doe,
Broome County Sheriff's Department and Defendant Miller)
arrived to serve him with a Family Court issued temporary
order of protection (the “Order”). (Dkt. No. 1.) Plaintiff
alleges that the Order barred him from contacting the mother
of his children (Jasmine Brown) and his children. (Id.)
Plaintiff alleges that he, Defendant Miller, Defendant Sheriff
John Doe, and Ms. Brown came to an agreement whereby,
Ms. Brown and the children would remain at the Property for
the night and Plaintiff would vacate. (Id.)
Plaintiff alleges that he left the Property and some time later,
he viewed his home security cameras where he observed Ms.
Brown packing up the children's belongings and leaving the
Property. (Id.)
*2 Plaintiff alleges that he contacted Defendant Miller
about Ms. Brown leaving the Property—in violation of the
oral agreement that they previously reached—and Defendant
Miller advised Plaintiff that there was nothing Defendant
Miller could do. (Id.) Plaintiff alleges that his neighbor
informed him that the Property was left unsecured with the
front door and garage door left open. (Id.) Plaintiff alleges
that he again contacted Defendant Miller to inform Defendant
Miller that Plaintiff intended to return to the Property because
it was left un-secured and that Defendant Miller did not tell
Plaintiff not to return. (Id.) Plaintiff alleges that, as a result,
and because Ms. Brown and the children were no longer at
the Property, he returned to the Property. (Id.)
Plaintiff alleges that on July 16, 2021, he was arrested for
criminal contempt in the second degree in violation of New
York Penal Law § 215.50. (Id.) In addition, Plaintiff alleges
that a parole violation was filed against him based on the
warrant for his arrest. (Id.)
Plaintiff alleges that Defendant Miller filed a criminal
complaint charging Plaintiff with criminal contempt, that
contained false information. (Dkt. No. 1, Attach. 1 at 6.) More
specifically, Plaintiff alleges that, in contrast with the criminal
complaint filed by Defendant Miller, (1) he was not advised
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to stay away from the Property, (2) the Property was not the
residence of Ms. Brown, and (3) Plaintiff did not make a
“verbal admission” that he was present at the Property at the
same time as Ms. Brown. (Id. at 6-8.)
Plaintiff alleges that at some point in time, he entered an
“Alford” guilty plea to his parole violation. (Dkt. No. 1 at 21.)
Plaintiff alleges that on December 14, 2021, the criminal
contempt charge against him was dismissed and his defense
counsel accepted the dismissal without Plaintiff's consent or
knowledge. (Dkt. No. 1, Attach. 1 at 9.) Plaintiff alleges that
on January 15, 2022, he became aware that the dismissal
of his criminal contempt charge was “in satisfaction” of his
parole violation, but that Plaintiff objected to that disposition.
(Id. at 10.) Plaintiff alleges that on June 14, 2022, the Court
dismissed the criminal contempt charge “pursuant to the
merits and a full dismissal accordingly sealing the matter in
the Plaintiff[’]s favor.” (Id. at 11.)
Based on these factual allegations, Plaintiff appears to assert
the following three causes of action against Defendants in
their individual and official capacities: (1) a claim of false
arrest pursuant to the Fourth Amendment and 42 U.S.C.
§ 1983; (2) a claim of false imprisonment pursuant to the
Fourteenth Amendment and 42 U.S.C. § 1983; and (3) a claim
of malicious prosecution pursuant to the Fourth Amendment
and 42 U.S.C. § 1983. (See generally Dkt. No. 1.)
As relief, Plaintiff seeks $5,000,000.00 in compensatory
damages and $5,000,000.00 in punitive damages. (Id.)
Plaintiff also filed an amended application to proceed in forma
pauperis. (Dkt. No. 4.)
II. PLAINTIFF'S AMENDED APPLICATION TO
PROCEED IN FORMA PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged.” Cash v. Bernstein,
09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26,
2010). 6 “Although an indigent, incarcerated individual need
not prepay the filing fee at the time of filing, he must
subsequently pay the fee, to the extent he is able to do
so, through periodic withdrawals from his inmate accounts.”
Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b);
Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
*3 Upon review, the Court finds that Plaintiff has submitted
a completed IFP application which has been certified by an
appropriate official at his facility (Dkt. No. 4), and which
demonstrates economic need. See 28 U.S.C. § 1915(a)(2).
Plaintiff has also filed the inmate authorization required in the
Northern District pursuant to Local Rule 5.1.4(b)(1)(B). (Dkt.
No. 5.)
Accordingly, Plaintiff's amended application to proceed with
this action IFP is granted. (Dkt. No. 4.)
III. RELEVANT LEGAL STANDARD GOVERNING
INTIAL REVIEW OF A COMPLAINT
Having found that Plaintiff meets the financial criteria for
commencing this action in forma pauperis, and because
Plaintiff seeks relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the Complaint in light of 28
U.S.C. §§ 1915(e) and 1915A(a). Section 1915(e) of Title 28
of the United States Code directs that, when a plaintiff seeks
to proceed in forma pauperis, “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). 7
Similarly, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a government entity or officer or employee of
a government entity” and must “identify cognizable claims
or dismiss the complaint, or any portion of the complaint,
if the complaint ... is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or ... seeks monetary
relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d
115, 116 (2d Cir. 1999) (per curium) (noting that Section
1915A applies to all actions brought by prisoners against
governmental officials even when plaintiff paid the filing fee).
Additionally, when reviewing a complaint, a court may also
look to the Federal Rules of Civil Procedure. Rule 8 of the
Federal Rules of Civil Procedure 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 of
Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive
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answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy,
C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C.
1977)).
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). While 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.” Ashcroft,
556 U.S. at 678. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8
“demands more than an unadorned the-defendant-unlawfully-
harmed-me accusation.” Id. Thus, a pleading that contains
only allegations which “are so vague as to fail to give the
defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009).
IV. ANALYSIS
*4 In addressing the sufficiency of a plaintiff's complaint,
the court must construe his pleadings liberally. Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008).
A. Official Capacity Claims
“An official capacity suit against a municipal employee is a
suit against the municipality itself.” Pittman v. Billings, 20-
CV-0422, 2020 WL 2079440, at *9 (N.D.N.Y. Apr. 30, 2020)
(Baxter, M.J.), report and recommendation adopted by 2020
WL 2574631 (N.D.N.Y. May 21, 2020) (Sharpe, J.).
1. Claims Against Defendants John Doe, State
of New York and Jane Doe, State of New York
New York State is immune from suits pursuant to 42 U.S.C.
§ 1983 seeking either legal or equitable relief, under the
Eleventh Amendment. Papasan v. Allain, 478 U.S. 265,
276 (1986); Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89, 98-100 (1984); see Ognibene v. Niagara Cnty.
Sheriff's Dep't, 03-CV-0678E, 2003 WL 2443989, at *3
(W.D.N.Y. Dec. 1, 2003) (“To the extent the plaintiff names
various state courts as defendants and seeks either legal
or equitable relief against them under § 1983, they are
immune from such suit under the Eleventh Amendment.”);
see also Kentucky v. Graham, 473 U.S. 159, 169 (1985)
(“The Court has held that, absent waiver by the State
or valid congressional override, the Eleventh Amendment
bars a damages action against a State in federal court.
This bar remains in effect when State officials are sued
for damages in their official capacity.” (internal citations
omitted)); Quern v. Jordan, 440 U.S. 332, 341 (1979) (“[W]e
simply are unwilling to believe, on the basis of such slender
‘evidence,’ that Congress intended by the general language
of § 1983 to override the traditional sovereign immunity of
the States.”); Minotti v. Lensink, 798 F.2d 607, 609 (2d Cir.
1986) (“Using its authority under section 5 of the fourteenth
amendment, Congress may abrogate the eleventh amendment
in the absence of a waiver by the states, but the civil rights
statute 42 U.S.C. § 1983 does not override the eleventh
amendment.” (internal citations omitted)).
As a result, I recommend that Plaintiff's claims against
Defendants John Doe, State of New York and Jane Doe, State
of New York in their official capacities be dismissed.
2. Claims Against Defendants John Doe, Broome
County District Attorney's Office and Jane
Doe, Broome County District Attorney's Office
As previously stated, “[t]he Eleventh Amendment generally
bars suits against a state in federal court.” Pikulin v. City Univ.
of N.Y., 176 F.3d 598, 600 (2d Cir. 1999) (per curiam) (citation
omitted). When a defendant is sued in his official capacity, we
treat the suit as one against the “entity of which an officer is an
agent.” Kentucky v. Graham, 473 U.S. at 165-66. If a district
attorney or an assistant district attorney acts as a prosecutor,
she is an agent of the state, and therefore immune from suit in
her official capacity. D'Alessandro v. City of New York, 713 F.
App'x 1, 8 (2d Cir. 2017) (citing Ying Jing Gan v. City of New
York, 996 F.2d 522, 536 (2d Cir. 1993)).
Here, the claims against Defendants John Doe, Broome
County District Attorney's Office and Jane Doe, Broome
County District Attorney's Office, in their official capacities,
are effectively claims against the State of New York. As a
result, I recommend that these claims be dismissed.
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3. Claims Against Defendants David Harder, Broome
County Sheriff's Department; Nicholas Miller,
Broome County Sheriff's Department; and Sheriff
John Doe, Broome County Sheriff's Department
*5 With respect to Plaintiff's claims against Defendants
Harder, Miller, and Sheriff John Doe, in their official
capacities as employees of the County of Broome, I
recommend that those claims be dismissed for failure to state
a claim upon which relief may be granted.
A municipality may only be named as a defendant in certain
circumstances. In Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978), the Supreme Court outlined the limited circumstances
under which a municipality may be liable under Section
1983. A municipality may not be held liable solely because it
employs a tortfeasor. Los Angeles Cnty., Cal. v. Humphries,
562 U.S. 29, 36 (2010). Only when the municipality, through
the execution of its policies, actually deprives an individual
of his constitutional rights, is it liable for the injury. Monell,
436 U.S. at 694.
To establish municipal liability, the policy must actually
cause the violation of constitutional rights; it must be
the moving force behind the violation. Id.; Dominguez v.
Beame, 603 F.2d 337, 341 (2d Cir. 1979). Official policy
includes the decisions of a government's lawmakers, the
acts of policymaking officials, and practices that are so
widespread as to “practically have the force of law.” Connick
v. Thompson, 563 U.S. 51, 61 (2011). Municipal liability may
also be shown by establishing that a policymaking official
ordered or ratified the employees’ actions either expressly or
tacitly.
Finally, municipal liability can, under limited circumstances,
be based upon a failure to properly train the municipality's
employees. Connick, 563 U.S. at 51. However, municipal
liability is most tenuous when a claim turns on the failure to
train. Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23
(1985) (plurality opinion) (“[A] ‘policy’ of ‘inadequate
training’ ” is “far more nebulous, and a good deal further
removed from the constitutional violation, than was the policy
in Monell”)). To satisfy the statute, a municipality's failure to
train its employees must amount to “ ‘deliberate indifference
to the rights of persons with whom the [untrained employees]
come into contact.’ ” Id. (citing City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989)).
There is no basis for municipal liability alleged in the
Complaint. Plaintiff essentially complains of one discrete
incident, during which a deputy employed by the Broome
County Sheriff's Department allegedly did not act properly.
There is no indication that Plaintiff can assert a policy or
custom which would support municipal liability based on
these facts. In addition, none of Plaintiff's allegations reflect
a failure to train or “deliberate indifference” to the rights of
persons who would come into contact with Defendants.
As a result, I recommend that Plaintiff's claims against
Defendants David Harder (Broome County Sheriff's
Department), Nicholas Miller (Broome County Sheriff's
Department), and Sheriff John Doe (Broome County Sheriff's
Department), in their official capacities, as employees of
Broome County be dismissed at this time. See Flagg v. NYS
Division of Parole, 19-CV-0886, 2019 WL 5002215, at *5
(N.D.N.Y. Aug. 15, 2019) (Baxter, M.J.) (citing DeCarlo v.
Fry, 141 F.3d 56, 61 (2d Cir. 1998)) (“A single incident,
particularly if it involved individuals below the policy-
making level is insufficient to state a Monell claim.”),
report and recommendation adopted by, 2019 WL 4963112
(N.D.N.Y. Oct. 8, 2019) (McAvoy, J.).
B. Individual Capacity Claims
1. Claims Against Defendants John Doe, Broome
County District Attorney's Office and Jane
Doe, Broome County District Attorney's Office
*6 It is well-established that “prosecutors are entitled to
absolute immunity for that conduct ‘intimately associated
with the judicial phase of the criminal process.’ ” Hill v. City of
New York, 45 F.3d 653, 660-61 (2d Cir. 1995) (quoting Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). “In determining
whether absolute immunity [applies], we apply a ‘functional
approach,’ looking at the function being performed rather
than to the office or identity of the defendant.” Hill, 45 F.3d
at 660 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269
(1993)); see also Bernard v. Cnty. of Suffolk, 356 F.3d 495,
504 (2d Cir. 2004) (“The appropriate inquiry ... is not whether
authorized acts are performed with a good or bad motive,
but whether the acts at issue are beyond the prosecutor's
authority.”); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)
(finding that prosecutorial immunity protects prosecutors
from liability under section 1983 “for virtually all acts,
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regardless of motivation, associated with his function as an
advocate”).
The Second Circuit has “held that absolute immunity extends
even to a prosecutor who ‘conspir[es] to present false
evidence at a criminal trial. The fact that such conspiracy
is certainly not something that is properly within the role
of a prosecutor is immaterial, because immunity attaches to
his function, not to the manner in which he performed it.’ ”
Anilao v. Spota, 27 F.4th 855, 865 (2d Cir. 2022) (quoting
Dory, 25 F.3d at 83 (cleaned up)). “Thus, unless a prosecutor
proceeds in the clear absence of all jurisdiction, absolute
immunity [from § 1983 liability] exists for those prosecutorial
activities intimately associated with the judicial phase of the
criminal process.” Anilao, 27 F.4th at 864 (quoting Barr v.
Abrams, 810 F.2d 358, 361 (2d Cir. 1987) (emphasis added)).
“Prosecutors thus have absolute immunity in a § 1983 action
even if it turns out that ‘state law did not empower [them] to
bring the charges,’ so long as ‘they have at least a semblance
of jurisdiction’ that does not run far afield of their job
description.” Id. at 865 (quoting Barr, 810 F.2d at 361).
Plaintiff does not appear to allege any factual allegations
against a John or Jane Doe of the Broome County District
Attorney's Office. (See generally Dkt. No. 1.) Instead,
Plaintiff alleges in a conclusory fashion that the Broome
County District Attorney's Office violated his due process
rights and injured Plaintiff by filing a false complaint and
failing to properly investigate the events on July 15, 2021.
(Dkt. No. 1 at 2.) In addition, Plaintiff alleges that “the
prosecutor ... knew or should have known that the [Property]
was in fact [Plaintiff's] protected residence.” (Dkt. No. 1 at
30.)
With this limited information, it appears that the actions
of Defendants John and Jane Doe of the Broome County
District Attorney's Office fall squarely within the scope of
their authority as prosecutors, which would entitle them to the
cloak of absolute immunity. I therefore recommend that any
claims against Defendants John and Jane Doe of the Broome
County District Attorney's Office be dismissed. See Anilao,
27 F.4th at 868 (holding that “under our precedent absolute
immunity shields [prosecutors] for their prosecutorial and
advocative conduct even in the absence of probable cause and
even if their conduct was entirely politically motivated.”).
2. Defendants John Doe, State of New
York and Jane Doe, State of New York
The caption of the Complaint lists John Doe, State of New
York and Jane Doe, State of New York but the body of the
Complaint does not contain any factual allegations against
a John or Jane Doe employed by the State of New York.
Thus, I recommend that Plaintiff's claims against John Doe,
State of New York, and Jane Doe, State of New York, in their
individual capacities be dismissed. See Johnson v. Gonzalez,
14-CV-0745, 2015 WL 1179384, at *6 (N.D.N.Y. Mar. 13,
2015) (Kahn, J.) (dismissing the claims against a defendant
where the complaint lists the defendant's “name in the caption,
but fails to again name or assert allegations against him.”);
Serrano v. New York State Dep't of Envtl. Conservation,
12-CV-1592, 2013 WL 6816787, at *15 (N.D.N.Y. Dec.
20, 2013) (D'Agostino, J.) (citing Jaffer v. Chemical Bank,
93-CV-8459, 1994 WL 392260, at *3 (S.D.N.Y. July 26,
1994) (holding that “[w]hen a complaint's caption names a
defendant but the complaint does not indicate that the named
party injured the plaintiff or violated the law, the motion
to dismiss must be granted”)) (dismissing the plaintiff's
claims against two defendants who were listed as parties in
the complaint and in the caption, but not elsewhere in the
complaint).
3. Defendant Harder
*7 “It is well settled in this Circuit 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)). In order to prevail on a section 1983 cause of
action against an individual, a plaintiff must show “a tangible
connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
“[D]irect participation as a basis of liability in this context
requires intentional participation in the conduct constituting
a violation of the victim's rights by one who knew of the facts
rendering it illegal.” Provost v. City of Newburgh, 262 F.3d
146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Courts in this circuit routinely hold that “the doctrine of
respondeat superior cannot be applied to section 1983 actions
to satisfy the prerequisite of personal involvement. Therefore,
a prison official may not be found liable for a constitutional
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violation merely because of the acts of those under his
control.” Kinch v. Artuz, 97-CV-2419, 1997 WL 576038, at
*2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58
F.3d 865, 874 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994)). Thus, supervisory officials may not be
held liable for their subordinates’ constitutional violations
merely because they are in a position of authority. See Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Colon,
58 F.3d at 874 (holding that the fact that the defendant
occupied a high-ranking position in the New York prison
hierarchy, without more, was insufficient to establish personal
involvement). Before deciding Ashcroft v. Iqbal, 556 U.S. 62
(2009), the Second Circuit held that supervisory personnel
could be considered “personally involved” if
(1) the defendant participated directly in the alleged
constitutional violation;
(2) the defendant, after being informed of the violation
through report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed
the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon, 58 F.3d at 873 (citing Wright, 21 F.3d at 501
(additional citation omitted)).
In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the
Second Circuit addressed how the Supreme Court's decision
in Iqbal affected the standards in Colon for establishing
supervisory liability. Consistent with other circuits, the
Second Circuit concluded that “there is no special rule
for supervisory liability,” and held that a “plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, had violated
the Constitution.’ ” Tangreti, 983 F.3d at 618. The Second
Circuit explained that, “ ‘the factors necessary to establish a
[§ 1983] violation will vary with the constitutional provision
at issue’ because the elements of different constitutional
violations vary. The violation must be established against
the supervisory official directly.” Id. (quoting Iqbal, 556
U.S. at 676). “District courts discussing Tangreti agree that
the decision invalidated the Colon test and mandates that a
plaintiff must establish a violation against the supervisory
official directly.” Fabrizio v. Smith, 20-CV-0011, 2021 WL
2211206, at *10 (N.D.N.Y. Mar. 10, 2021) (Lovric, M.J.)
(collecting cases), report and recommendation adopted by
2021 WL 2211023 (N.D.N.Y. June 1, 2021) (Suddaby, C.J.).
*8 Plaintiff's sparse allegations against Defendant Harder,
assert that Defendant Harder failed to adequately train,
enforce training, or supervise his officers on how to properly
resolve domestic dispute incidents, specifically with respect
to the right to property when an order of protection has
been issued. (See generally Dkt. No. 1.) Plaintiff does
not allege that Defendant Harder was personally involved
in any violation of Plaintiff's rights. After the Second
Circuit's ruling in Tangreti, these allegations are insufficient
to plausibly suggest the personal involvement of Defendant
Harder. See Powell v. City of Jamestown, 21-CV-0721,
2022 WL 1913581, at *10 (W.D.N.Y. June 3, 2022) (citing
Guzman v. McCarthy, 21-CV-1192, 2022 WL 630873, at *3
(N.D.N.Y. Mar. 4, 2022) (D'Agostino, J.) (mere allegation
that prison superintendent failed to train his officers to protect
inmates from harm was “not enough to plausibly allege the
[superintendent's] personal involvement”)) (dismissing the
plaintiff's claims against the sheriff, undersheriff, and chief
of police where “the Complaint mentions those individuals
by name only in the caption and in a section introducing the
parties. The allegation that defendants ‘faile[d] to adequately
train and supervise [their] employees relating to the use of
force including but not limited to failing to treat medical
conditions and preventing self harm’ ... is conclusory and
insufficient.”).
As a result, I recommend that Plaintiff's claims with respect
to Defendant Harder be dismissed.
4. Defendant John Doe, Broome
County Sheriff's Department
Based on the Complaint and attachment, it appears as though
Defendant “John Doe, Broome County Sheriff's Department”
refers to the individual who accompanied Defendant Miller
to the Property to serve the Order on Plaintiff. (Dkt. No.
1, Attach. 1 at 3.) However, the Complaint fails to allege
facts plausibly suggesting any action taken by Defendant John
Doe, Broome County Sheriff's Department. Defendant John
Doe, Broome County Sheriff's Department's mere presence is
insufficient to allege his personal involvement in the alleged
constitutional violations at issue here. See Roman v. City
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of Mount Vernan, 21-CV-2214, 2022 WL 2819459, at *16
(S.D.N.Y. July 19, 2022) (quoting Arbuckle v. City of New
York, 14-CV-10248, 2016 WL 5793741, at *13 (S.D.N.Y.
Sept. 30, 2016)) (“ ‘Simply being present at the scene of
an arrest does not suffice for personal involvement.’ ”).
As a result, I recommend that Plaintiff's claims against
Defendant John Doe, Broome County Sheriff's Department,
be dismissed for failure to state a claim upon which relief may
be granted.
5. Defendant Miller
a. False Arrest and False Imprisonment
To prevail on a claim of false arrest under the Fourth
Amendment, a plaintiff must allege facts plausibly suggesting
the following: (1) that the defendant intended to confine
the plaintiff; (2) that the plaintiff was conscious of the
confinement; (3) that the plaintiff did not consent to the
confinement; and (4) that the confinement was not otherwise
privileged. Ackerson v. City of White Plains, 702 F.3d 15, 19
(2d Cir. 2012). Moreover, a Section 1983 claim for false arrest
under the Fourth Amendment is “substantially the same”
as a claim of false imprisonment. Jackson v. City of N.Y.,
939 F. Supp. 2d 235, 248 (E.D.N.Y. 2013); see Smith v.
City of Syracuse, 19-CV-0997, 2020 WL 1937411, at *4 n.6
(N.D.N.Y. Apr. 21, 2020) (Sannes, J.) (“ ‘Claims brought
under Section 1983 are guided by state tort law.’ ‘In New
York, the tort of false arrest is synonymous with that of false
imprisonment.’ ” (citations omitted)); Givans v. Jefferson
Cnty. Sheriff's Office, 13-CV-0906, 13-CV-0908, 2015 WL
13540492, at *12 n.18 (N.D.N.Y. Aug. 28, 2015) (Sannes,
J.) (citing Liranzo v. United States, 690 F.3d 78, 91 n.13
(2d Cir. 2012)) (“ ‘False arrest’ is synonymous with ‘false
imprisonment’ under New York law.”).
Out of an abundance of caution, mindful of the Second
Circuit's instruction that a pro se plaintiff's pleadings must
be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d
at 191, and without expressing an opinion as to whether
Plaintiff can withstand a properly filed motion to dismiss
or for summary judgment, I recommend that a response be
required to Plaintiff's false arrest and false imprisonment
claims against Defendant Miller in his individual capacity.
b. Malicious Prosecution
*9 To prevail on a claim of malicious prosecution, a plaintiff
must allege facts plausibly suggesting the following: (1)
the commencement or continuation of a criminal proceeding
against him; (2) the termination of the proceeding in his favor;
(3) that the state officials lacked probable cause; and (4) that
the proceeding was instituted with malice. Mitchell v. City of
New York, 841 F.3d 72, 79 (2d Cir. 2016) (citing Kinzer v.
Jackson, 316 F.3d 139, 143 (2d Cir. 2003); Colon v. City of
New York, 60 N.Y.2d 78, 82 (1983)).
Out of an abundance of caution, mindful of the Second
Circuit's instruction that a pro se plaintiff's pleadings must
be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d
at 191, and without expressing an opinion as to whether
Plaintiff can withstand a properly filed motion to dismiss
or for summary judgment, I recommend that a response be
required to Plaintiff's malicious prosecution claim against
Defendant Miller in his individual capacity. 8
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in 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.”
Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991);
see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave when justice so requires.”). An opportunity to
amend is not required, however, 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.”).
Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, ... it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.).
Here, better pleading could not cure the Court's lack of subject
matter jurisdiction based on the immunities described above
with respect to Plaintiff's claims pursuant to 42 U.S.C. § 1983
against (1) Defendants John Doe, State of New York and
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Jane Doe, State of New York in their official capacities, and
(2) Defendants John Doe, Broome County District Attorney's
Office and Jane Doe, Broome County District Attorney's
Office, in their individual or official capacities.
*10 However, it is not clear whether better pleading would
permit Plaintiff to assert a cognizable claim pursuant to 42
U.S.C. § 1983 against (1) Defendants John Doe, State of New
York and Jane Doe, State of New York in their individual
capacities, (2) Defendants Harder and Sheriff John Doe in
their individual or official capacities, or (3) Defendant Miller
in his official capacity. Out of deference to Plaintiff's pro
se status, I recommend that Plaintiff be granted leave to
amend the Complaint with respect to his Section 1983 claims
against (1) Defendants John Doe, State of New York and Jane
Doe, State of New York in their individual capacities, (2)
Defendants Harder and Sheriff John Doe in their individual
or official capacities, and (3) Defendant Miller in his official
capacity.
If Plaintiff chooses to avail himself of an opportunity to
amend, such amended pleading must set forth a short and
plain statement of the facts on which he relies to support
any legal claims asserted. Fed. R. Civ. P. 8(a). In addition,
the amended complaint must include allegations reflecting
how the individuals named as Defendants are involved in the
allegedly unlawful activity. Finally, Plaintiff is informed that
any amended complaint will replace the existing Complaint,
and must be a wholly integrated and complete pleading
that does not rely upon or incorporate by reference any
pleading or document previously filed with the Court. See
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994) (“It is well established that an amended complaint
ordinarily supersedes the original, and renders it of no legal
effect.” (internal quotation marks omitted)).
ACCORDINGLY, it is
ORDERED that Plaintiff's amended application to proceed in
forma pauperis (Dkt. No. 4) is GRANTED; and it is further
ORDERED that the Clerk of the Court amend the docket
such that (1) Defendant “John Doe” is changed to Defendant
“John Doe, State of New York,” (2) Defendant “Jane Doe” is
changed to Defendant “Jane Doe, State of New York,” and (3)
Defendant State of New York is terminated; and it is further
respectfully
RECOMMENDED that the Court DISMISS WITH
LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to
the extent that it asserts (1) claims against Defendants John
Doe, State of New York and Jane Doe, State of New York,
in their individual capacities; (2) claims against Defendants
David Harder and Sheriff John Doe in their individual and
official capacities, and (3) claims against Defendant Miller in
his official capacity, because they fail to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(a); and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE AND WITHOUT LEAVE TO REPLEAD
Plaintiff's Complaint (Dkt. No. 1) to the extent that it
asserts (1) claims against Defendants John Doe, State of
New York and Jane Doe, State of New York in their
official capacities, and (2) claims against Defendants John
Doe, Broome County District Attorney's Office and Jane
Doe, Broome County District Attorney's Office in their
individual or official capacities, because they seek monetary
relief against Defendants who are immune from such relief,
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(a); and it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Order Report-Recommendation on Plaintiff, along with
copies of the unpublished decisions cited herein in accordance
with the Second Circuit's decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 9 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; 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)).
All Citations
Not Reported in Fed. Supp., 2022 WL 16579207
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Footnotes
1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker,
44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
2 Plaintiff attached an affidavit to the Complaint, which included additional details about the alleged wrongs.
(Dkt. No. 1, Attach. 1.) Construing the Complaint liberally, as the Court must, the Court considered the
additional factual details contained in the affidavit.
3 To conform with the Complaint, the Clerk of the Court is directed to amend the name of Defendant “John
Doe” to “John Doe, State of New York,” on the Court's docket. (Dkt. No. 1 at 1.)
4 To conform with the Complaint, the Clerk of the Court is directed to amend the name of Defendant “Jane
Doe” to “Jane Doe, State of New York,” on the Court's docket. (Dkt. No. 1 at 1.)
5 To conform with the Complaint, the Clerk of the Court is directed to terminate Defendant State of New York,
on the Court's docket. (Dkt. No. 1 at 1.)
6 Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of
“imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently
dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C.
§ 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to
Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from
that review that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date
this action was commenced.
7 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
8 Although not clear at this juncture the exact contours of the dismissal of Plaintiff's criminal charge, it appears
as though it may have been an adjournment in contemplation of dismissal (“ACD”). (Dkt. No. 1 at 38.)
However, based on the Supreme Court's recent decision in Thompson v. Clark, 142 S. Ct. 1332 (2022), courts
in this Circuit have deemed an ACD “a favorable termination for the purposes of a malicious prosecution
claim.” Price v. Peress, 18-CV-4393, 2022 WL 4638148, at *11 (E.D.N.Y. Sept. 30, 2022); see Perez v. City
of New York, 20-CV-1359, 2022 WL 4236338, at *13 (S.D.N.Y. Sept. 14, 2022) (holding that “[i]n light of
Thompson” the argument that an “ACD bars a malicious-prosecution claim because it leaves the question
of innocence or guilt unanswered,” is meritless); McGaffigan v. City of Rochester, 21-CV-6545, 2022 WL
2812359, at *2 (W.D.N.Y. July 19, 2022) (allowing the plaintiff to amend her complaint adding a malicious
prosecution claim after she accepted an ACD, in light of the Supreme Court's decision in Thompson).
9 If you are proceeding pro se and 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 that 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).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00156-AJB-ML Document 19 Filed 03/03/26 Page 41 of 129

Britt v. Doe, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 16571391
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Lowell J. BRITT, Plaintiff,
v.
John DOE, State of New York et al., Defendants.
3:22-cv-0692 (GLS/ML)
|
Signed November 1, 2022
Attorneys and Law Firms
FOR THE PLAINTIFF: Lowell J. Britt, Pro Se, Orleans
Correctional Facility, 3531 Gaines Basin Road, Albion, NY
14411.
ORDER
Gary L. Sharpe, Senior District Judge
*1 The above-captioned matter comes to this court
following an Order and Report-Recommendation (R&R) by
Magistrate Judge Miroslav Lovric, duly filed October 13,
2022. (Dkt. No. 7.) Following fourteen days from the service
thereof, the Clerk has sent the file, including any and all
objections filed by the parties herein.
No objections having been filed, and the court having
reviewed the R&R for clear error, it is hereby
ORDERED that the Order and Report-Recommendation
(Dkt. No. 7) is ADOPTED in its entirety; and it is further
ORDERED that plaintiff's complaint (Dkt. No. 1) is
DISMISSED WITHOUT PREJUDICE and WITHOUT
LEAVE TO REPLEAD as to:
(1) claims against defendants John
Doe, State of New York and
Jane Doe, State of New York in
their official capacities, and (2)
claims against defendants John Doe,
Broome County District Attorney's
Office, and Jane Doe, Broome
County District Attorney's Office in
their individual or official capacities,
because plaintiff seeks monetary relief
against defendants who are immune
from such relief, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(a); and it
is further
ORDERED that plaintiff's complaint (Dkt. No. 1) is
DISMISSED WITH LEAVE TO REPLEAD as to:
(1) claims against defendants John
Doe, State of New York and
Jane Doe, State of New York, in
their individual capacities, (2) claims
against defendants David Harder and
Sheriff John Doe in their individual
and official capacities, and (3) claims
against defendant Nicholas Miller in
his official capacity, because they fail
to state a claim upon which relief may
be granted pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(a); and it is
further
ORDERED that, if plaintiff files an amended complaint, he
is warned that any amended complaint must be a complete
and separate pleading. Plaintiff must state all of his claims in
the new pleading and may not incorporate by reference any
part of his original complaint; and it is further
ORDERED that plaintiff's amended complaint shall be filed
within thirty (30) days of the date of this Order; and it is
further
ORDERED that, if plaintiff files an amended complaint, such
proposed amended complaint will be referred to Magistrate
Judge Lovric for initial review; and it is further
ORDERED that, if plaintiff fails to file an amended
complaint within the time permitted, the Clerk is directed to
close this case without further order of the court; and it is
further
ORDERED that the Clerk provide a copy of this Order to
plaintiff in accordance with the Local Rules of Practice.
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Britt v. Doe, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 16571391
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00156-AJB-ML Document 19 Filed 03/03/26 Page 43 of 129

Brown v. Peters, Not Reported in F.Supp. (1997)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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Brown v. Peters, Not Reported in F.Supp. (1997)
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forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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Brown v. Peters, Not Reported in F.Supp. (1997)
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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Brown v. Peters, Not Reported in F.Supp. (1997)
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
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).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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Brown v. Peters, Not Reported in F.Supp. (1997)
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) 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 TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Cathlin v. City of New York, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 6929187
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Michael C. CATHLIN, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
23-CV-4219 (LTS)
|
Signed October 18, 2023
Attorneys and Law Firms
Michael C. Cathlin, Brooklyn, NY, Pro Se.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff, who is appearing pro se, brings this action
alleging that Defendants violated his rights in criminal
proceedings before the Criminal Court of the City of New
York, New York County, in violation of the Equal Protection
Clause of the Fourteenth Amendment and the New York State
Constitution. By order dated May 24, 2023, the Court granted
Plaintiff's request to proceed in forma pauperis (“IFP”), that
is, without prepayment of fees. For the reasons set forth
below, the Court dismisses this action.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of
the complaint, that is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co.,
141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss
a complaint when the Court lacks subject matter jurisdiction
of the claims raised. See Fed. R. Civ. P. 12(h)(3).
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 [claims] that they suggest,” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at
475 (citation omitted), has its limits – to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short
and plain statement showing that the pleader is entitled to
relief.
Rule 8 of the Federal Rules of Civil Procedure requires a
complaint to include enough facts to state a claim for relief
“that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is facially plausible
if the plaintiff pleads enough factual detail to allow the
Court to draw the inference that the defendant is liable
for the alleged misconduct. In reviewing the complaint, the
Court must accept all well-pleaded factual allegations as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it
does not have to accept as true “[t]hreadbare recitals of the
elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal
conclusions from well-pleaded factual allegations, the Court
must determine whether those facts make it plausible – not
merely possible – that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff alleges that Defendants violated his rights in
connection with his arrest and criminal proceedings, resulting
in his conviction of attempted forcible touching and sexual
abuse in the third degree. Named as defendants are the
City of New York; Christina Awad, an Assistant District
Attorney at the Manhattan District Attorney's Office (“DA's
Office”); Jacob Smith, a member of the New York City
Police Department (“NYPD”) Transit Bureau Manhattan
Task Force; Michael Miceli, a Youth Officer at NYPD Transit
Bureau District 2; and Catherine Byrns, Esq., an attorney at
the DA's Office. Plaintiff seeks to vacate his conviction and
seal his DNA results, and money damages.
*2 The following information is taken from the complaint.
Plaintiff, who at the time was a second year law student, was
arrested on June 11, 2019, and charged with forcible touching
and sexual abuse in the third degree based on a subway train
incident. On November 25, 2019, Judge Josh Hanshaft, who
presided over Plaintiff's criminal case in the Criminal Court of
the City of New York, New York County, denied him his right
to a jury trial in violation of the Equal Protection Clause of the
Fourteenth Amendment and the New York State Constitution.
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Judge Hanshaft “did not recognize the potential of [Plaintiff]
being homeless and the damage it caused to [his] reputation,
as a person as well as a security officer, serious enough for
a jury trial within the confines of New York City.” (ECF 1,
at 5.) 1 Instead, Judge Hanshaft conducted a bench trial and
allowed “admission of hearsay for the complainant, which
otherwise would have been the only evidence to use against
[Plaintiff's] plea of not guilty.” (Id.) Although at trial, “it was
established no communication of any kind occurred between
[Plaintiff] and the complainant before, during, or after the
incident,” Judge Hanshaft found Plaintiff guilty of attempted
forcible touching and sexual abuse in the third degree and
imposed a sentence of one year probation and counseling, and
submission of his DNA.
On appeal, the New York Supreme Court, Appellate Division,
First Department (“Appellate Division”), affirmed Plaintiff's
conviction, and the New York Court of Appeals denied him
leave to appeal. See People v. Cathlin, 76 Misc. 3d 137(A),
175 N.Y.S.3d 408 (Table) (1st Dep't Oct. 12, 2022), lv denied,
39 N.Y.3d 1077 (Feb. 21, 2023). The Appellate Division
determine that there was no basis for disturbing the trial
court's acceptance of the victim's account of the incident and
rejection of Plaintiff's testimony, that the verdict was not
against the weight of evidence, that any errors in admission of
statements were harmless, and that Plaintiff was not entitled
to a jury trial. See People v. Cathlin, 76 Misc. 3d 137(A), at
*1-2.
In the complaint, Plaintiff reiterates many of the same grounds
for relief from the direct appeal of his conviction. He refers
to the victim's shifting accounts of the events and asserts that
she “fabricated the story about [his] hand under her dress
because of embarrassment, from thinking a rat was on her leg,
and for whatever unknown reason, thought [he had] laughed
at her reaction to this mistake.” (ECF 1, at 11.) Plaintiff
also challenges aspects of his arrest, including the arresting
officer's failure to use his body camera “for the purpose of
supporting the truth” or to verify the victim's account of the
events the same day. (Id. at 12.) Plaintiff further asserts that
Judge Hanshaft failed to address prosecutorial misconduct,
made favorable rulings for the prosecution, and convicted
him of the charges despite “discrepancies of unreliable,
inconsistent testimonies.” (Id. at 13.)
DISCUSSION
Plaintiff brings this action seeking to vacate his state court
conviction, seal his DNA results, and money damages for
alleged violations of his rights in the criminal proceedings
before the Criminal Court of the City of New York, New York
County. Because Plaintiff is not in custody – and thus has no
remedy available through habeas relief – the Court construes
the complaint as asserting claims of constitutional violations
under 42 U.S.C. § 1983. 2 See Huang v. Johnson, 251 F.3d
65, 74 (2d Cir. 2001) (noting Justice Souter's language in a
concurrence that stated that “ ‘a former prisoner, no longer
‘in custody,’ may bring a § 1983 action establishing the
unconstitutionality of a conviction or confinement without
being bound to satisfy a favorable-termination requirement
that it would be impossible as a matter of law for him to
satisfy’ ” (quoting Spencer v. Kemna, 523 U.S. 1, 21 (1998)
(Souter, J., concurring))). Section 1983 allows an individual
to bring suit against persons who, acting under color of
state law, have caused him to be depriv[ed] of any rights,
privileges, or immunities secured by the Constitution and
laws of the United States.” 3 42 U.S.C. § 1983; West v. Atkins,
487 U.S. 42, 48 (1988). For the reasons set forth below,
however, the Court must dismiss this action.
A. Challenge to Conviction
*3 The Rooker-Feldman doctrine “established the clear
principle that federal district courts lack jurisdiction over suits
that are, in substance, appeals from state-court judgments.”
Sung Cho v. City of New York, 910 F.3d 639, 644 (2d Cir.
2018) (citation omitted). Because “federal district courts are
granted original – and not appellate – jurisdiction, cases
that function as de facto appeals of state-court judgments
are therefore jurisdictionally barred.” Id. Under the Rooker-
Feldman doctrine, a federal district court lacks authority to
review a final state court order or judgment where the plaintiff
seeks relief that invites the federal district court to reject
or overturn such a final state court order or judgment. See
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
291-92 (2005); 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 [of
the United States] is the only federal court with jurisdiction
over such cases.” (citing 28 U.S.C. § 1257)); Kropelnicki
v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002) (“The [Rooker-
Feldman] doctrine reflects the principle set forth in 28 U.S.C.
§ 1257 that the Supreme Court [of the United States] is the
only federal court that has jurisdiction to review state court
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judgments, unless otherwise provided by Congress, see, e.g.,
28 U.S.C. § 2254 (habeas corpus review).” (citation omitted)).
District court review of claims is barred under the Rooker-
Feldman doctrine when four requirements are met: (1) the
plaintiff lost in state court; (2) the plaintiff complains of
injuries caused by a final state court order or judgment; (3)
the plaintiff invites district court review and rejection of the
final state court order or judgment; and (4) the final state
court order or judgment was rendered before the district
court proceedings commenced. Dorce, 2 F.4th at 101 (internal
quotation marks and citation omitted).
The Rooker-Feldman doctrine applies where a plaintiff seeks
relief that invites a federal district court to reject or overturn
a final decision of a state court as to a conviction. See
Teichmann v. New York, 769 F.3d 821, 826 (2d Cir. 2014)
(dismissal of Section 1983 claims warranted under Rooker-
Feldman where a plaintiff “seeks nothing more than a review
of a state court judgment”); Moalawi v. James, No. 22-
CV-6770, 2023 WL 4817618, at *2 (S.D.N.Y. July 27,
2023) (finding that Rooker-Feldman bars Plaintiff's challenge
to state-court conviction under Section 1983); Mitchell v.
New York State, No. 22-CV-1747, 2023 WL 2734823, at
*4 (E.D.N.Y. Mar. 31, 2023) (dismissing under the Rooker-
Feldman doctrine, Section 1983 action that “necessarily
invites the Court to review the judgment of [the plaintiff's
state court criminal] conviction”); Molina v. James, No.
21-CV-3144, 2022 WL 813815, at *5 (E.D.N.Y. Mar.
17, 2022) (dismissing under the Rooker-Feldman doctrine,
plaintiff's request for an injunction to dismiss his criminal
conviction); Bobrowsky v. Yonkers Courthouse, 777 F. Supp.
2d 692, 705-06 (S.D.N.Y. 2011) (finding no subject-matter
jurisdiction under Rooker-Feldman, where plaintiff requested
to “void ... conviction entered by ... state courts”).
Here, Plaintiff's claims are barred under the Rooker-Feldman
doctrine. Plaintiff, who was convicted in state court before
bringing this action, complains that his constitutional rights
were violated in his 2019 criminal proceedings. In other
words, he challenges the validity of his state court conviction
and invites the Court to review the judgment of conviction.
The Rooker-Feldman doctrine bars this Court from reviewing
such challenges. The Court therefore dismisses Plaintiff's
challenge to his state court conviction, under the Rooker-
Feldman doctrine, for lack of subject matter jurisdiction. See
Fed. R. Civ. P. 12(h)(3); Exxon Mobil Corp., 544 U.S. at 291.
B. Remaining Section 1983 Claims
Plaintiff brings this action ostensibly challenging his
conviction and the submission of his DNA on the ground that
he was denied his right to a jury trial in violation of the Equal
Protection Clause of the Fourteenth Amendment and the New
York State Constitution. (See ECF 1, at 2.) However, Plaintiff
names as defendants the City of New York, prosecutors from
the Manhattan DA's Office, and the officers involved in his
arrest. It therefore appears that as well as challenging the
validity of his conviction, Plaintiff is also bringing Section
1983 claims against these defendants arising out of his arrest
and prosecution.
1. Statute of limitations
*4 Plaintiff's claims arising from his arrest and prosecution
may be time-barred. The statute of limitations for Section
1983 claims is found in the “general or residual [state] statute
[of limitations] for personal injury actions.” Pearl v. City of
Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens
v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that
period is three years. See N.Y. C.P.L.R. § 214(5). Section
1983 claims generally accrue when a plaintiff knows or has
reason to know of the injury that is the basis of the claim.
Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). A false
arrest claim under Section 1983 accrues, for example, when
the false arrest ends, that is, once the arrestee “becomes held
pursuant to legal process – when, for example, he is bound
over by a magistrate or arraigned on charges.” Wallace v.
Kato, 549 U.S. 384, 389 (2007); Jaegly v. Couch, 439 F.3d
149, 154 (2d Cir. 2006) (“A cause of action for false arrest
accrues at the time of detention.”).
Plaintiff was arrested on June 11, 2019, and was convicted on
November 25, 2019. Plaintiff therefore had until some point
between June 2022 and November 2022 to file a timely action
asserting claims arising from his arrest and prosecution.
Plaintiff's complaint, however, was filed on May 21, 2023,
almost six months beyond the expiration of the three-year
limitations period.
Because the failure to file an action within the limitations
period is an affirmative defense, a plaintiff is generally not
required to plead that the case is timely filed. See Abbas,
480 F.3d at 640. Dismissal is appropriate, however, where
the existence of an affirmative defense, such as the statute
of limitations, is plain from the face of the pleading. See
Walters v. Indus. and Commercial Bank of China, Ltd., 651
F.3d 280, 293 (2d Cir. 2011); see also Pino v. Ryan, 49 F.3d
51, 53 (2d Cir. 1995) (affirming sua sponte dismissal under
28 U.S.C. § 1915(d) on statute of limitations grounds). A
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district court should grant notice and opportunity to be heard,
however, before dismissing a complaint sua sponte on statute
of limitations grounds. Abbas, 480 F.3d at 640.
To the extent Plaintiff is seeking to bring claims arising
out of his arrest and prosecution, his claims were filed
beyond the expiration of the applicable statute of limitations.
Normally, the Court would grant him leave to plead any facts
showing that equitable tolling applies but, as discussed below,
Plaintiff fails to state any claim for relief, and therefore, it is
appropriate to dismiss his untimely claims.
2. Claims against the City of New York
When a plaintiff sues a municipality, such as the City of New
York, under Section 1983, it is not enough for the plaintiff
to allege that one of the municipality's employees or agents
engaged in some wrongdoing. The plaintiff must show that
the municipality itself caused the violation of the plaintiff's
rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A
municipality or other local government may be liable under
this section [1983] if the governmental body itself ‘subjects’
a person to a deprivation of rights or ‘causes’ a person ‘to be
subjected’ to such deprivation.” (quoting Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)));
Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In
other words, to state a claim under Section 1983 against a
municipality, the plaintiff must allege facts showing: (1) the
existence of a municipal policy, custom, or practice; and (2)
that the policy, custom, or practice caused the violation of the
plaintiff's constitutional rights. Jones v. Town of East Haven,
691 F.3d 72, 80 (2d Cir. 2012); see Bd. of Cnty. Comm'rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal
citations omitted).
*5 Plaintiff does not allege any facts showing that a policy,
custom, or practice of the City of New York caused a violation
of his federal constitutional or statutory rights. The Court
therefore dismisses any claims Plaintiff may be asserting
under Section 1983 against the City of New York for failure
to state a claim on which relief may be granted. See § 1915(e)
(2)(B)(ii).
3. Claims against Awad and Byrns
Plaintiff claims for damages under Section 1983 against
Defendants Christina Awad and Catherine Byrns arising from
his criminal prosecution must also be dismissed. Prosecutors
are immune from civil suits for damages for acts committed
within the scope of their official duties where the challenged
activities are not investigative in nature but, rather, are “
‘intimately associated with the judicial phase of the criminal
process.’ ” Giraldo v. Kessler, 694 F.3d 161, 165 (2d
Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S. 409,
430 (1976)); see also Buckley v. Fitzsimmons, 509 U.S.
259, 269 (1993) (absolute immunity is analyzed under a
“functional approach” that “looks to the nature of the function
performed, not the identity of the actor who performed
it” (internal quotation marks and citations omitted)). In
addition, prosecutors are absolutely immune from suit for
acts that may be administrative obligations but are “directly
connected with the conduct of a trial.” Van de Kamp v.
Goldstein, 555 U.S. 335, 344 (2009); see also Ogunkoya v.
Monaghan, 913 F.3d 64, 70-72 (2d Cir. 2019) (holding that
ADAs’ direction as to where criminal defendant would be
arraigned was in preparation for a court proceeding in which
the prosecutors were acting as advocates, and ADAs were
therefore shielded by absolute immunity (citing, inter alia,
Van de Kamp)).
Here, Plaintiff does not allege what Defendants Awad
and Byrns did to violate his rights. However, the Court
understands Plaintiff's claims against these defendants to be
based on actions within the scope of their official duties
within the Manhattan DA's Office and associated with the
conduct of a trial. Therefore, Plaintiff's claims against these
defendants are dismissed because he seek monetary relief
against defendants who are immune from such relief, 28
U.S.C. § 1915A(b)(2), and, consequently, as frivolous, 28
U.S.C. § 1915A(b)(1). See Collazo v. Pagano, 656 F. 3d 131,
134 (2d Cir. 2011) (holding that a claim against a prosecutor
is frivolous if it arises from conduct that is “intimately
associated with the judicial phase of the criminal process”).
C. Claims against Smith and Miceli
Plaintiff also names Officers Smith and Miceli, who appear
to be the arresting officers, as defendants in this action. To
state a claim under Section 1983, a plaintiff must allege facts
showing the defendants’ direct and personal involvement in
the alleged constitutional deprivation. See Spavone v. N.Y.
State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013)
(“It is well settled in this Circuit that personal involvement
of defendants in the alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” (internal
quotation marks omitted)). A defendant may not be held liable
under Section 1983 solely because that defendant employs
or supervises a person who violated the plaintiff's rights. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government
officials may not be held liable for the unconstitutional
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conduct of their subordinates under a theory of respondeat
superior.”). Rather, “[t]o hold a state official liable under
§ 1983, a plaintiff must plead and prove the elements of
the underlying constitutional violation directly against the
official[.]” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir.
2020).
*6 Plaintiff does not allege any facts showing how
Officers Smith or Miceli were personally involved in the
events underlying his claims. Plaintiff's claims against these
defendants are therefore dismissed for failure to state a claim
on which relief may be granted. 4 See 28 U.S.C. § 1915(e)(2)
(B)(ii).
D. Claims under State Law
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 n.7 (1988). Having dismissed the federal
claims of which the Court has original jurisdiction, the
Court declines to exercise its supplemental jurisdiction of
any state-law claims Plaintiff may be asserting. See Kolari
v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (“Subsection (c) of § 1367 ‘confirms the discretionary
nature of supplemental jurisdiction by enumerating the
circumstances in which district courts can refuse its exercise.’
” (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S.
156, 173 (1997))).
E. Leave to Amend Denied
*7 District courts generally grant a pro se plaintiff an
opportunity to amend a complaint to cure its defects, but leave
to amend is not required where it would be futile. See Hill v.
Curcione, 657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in
Plaintiff's complaint cannot be cured with an amendment, the
Court declines to grant Plaintiff leave to amend his complaint.
CONCLUSION
The Court dismisses Plaintiff's challenge to his conviction
under the Rooker-Feldman doctrine, for lack of subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3). The Court also
dismisses Plaintiff's remaining claims under 28 U.S.C. §
1915(e)(2)(B)(ii), (iii). All other pending matters in this
action are terminated.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 6929187
Footnotes
1 The Court quotes Plaintiff's complaint and other submissions verbatim. All spelling, grammar, and punctuation
are as in the original unless otherwise indicated.
2 Generally, a civil action is not the appropriate vehicle to seek expungement of a criminal conviction. See
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (noting that a writ of habeas corpus is the sole remedy
for a prisoner seeking to challenge the fact or duration of his confinement); see also Heck v. Humphrey,
512 U.S. 477, 486-87 (1994) (“[I]n order to recover damages for [an] 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[.]”). However, the favorable
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termination rule stated in Heck does not bar Section 1983 claims when habeas relief is unavailable. See
Huang v. Johnson, 251 F.3d 65, 74 (2d Cir. 2001); see also Heck, 512 U.S. at 500 (“[State prisoners] not ‘in
custody’ cannot invoke federal habeas jurisdiction, the only statutory mechanism besides § 1983 by which
individuals may sue state officials in federal court for violating federal rights.”).
3 To state a Section 1983 claim, a plaintiff must allege both that: (1) a right secured by the Constitution or laws
of the United States was violated, and (2) the right was violated by a person acting under the color of state
law, or a “state actor.” West, 487 U.S. at 48-49.
4 The Court notes that Plaintiff does not allege any facts suggesting viable false arrest or malicious prosecution
claims. To state a claim for false arrest and imprisonment under New York law, a plaintiff must show that:
“(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Liranzo v.
United States, 690 F.3d 78, 95 (2d Cir. 2012). An arrest is privileged if it is based on probable cause. Jenkins
v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007). Officers have probable cause to arrest when they “have
knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to be arrested has committed or is committing a
crime.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (emphasis and citation omitted).
Plaintiff does not allege facts indicating that the police officers who arrested him for forcible touching and
sexual abuse lacked probable cause or otherwise acted unreasonably or in the absence of good faith when
they arrested him.
Any malicious prosecution claim Plaintiff is asserting is also deficient. To state a claim for malicious
prosecution, a plaintiff must allege facts showing: (1) that the defendant initiated or continued a prosecution
against the plaintiff; (2) that the defendant lacked probable cause to commence the proceeding or believe
the proceeding could succeed; (3) that the defendant acted with malice; and (4) that the prosecution was
terminated in the plaintiff's favor. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Thus, because
favorable termination is an element of a malicious prosecution claim, a plaintiff who has been convicted
and seeks to recover damages under Section 1983 for malicious prosecution must show that his conviction
terminated in his favor by alleging that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, invalidated by a state tribunal authorized to make such determinations, or
otherwise called into question by a federal court's issuance of a writ of habeas corpus. See Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005) (holding that Section 1983 actions are “barred (absent prior invalidation) ...
if success in that action would necessarily demonstrate the invalidity of confinement or its duration” (italics
in original) (citing Heck, 512 U.S. at 486-87)). Because Plaintiff does not allege facts suggesting that his
conviction has been overturned or otherwise invalidated, he cannot state a viable malicious prosecution claim
for damages and equitable relief.
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Davis v. Campbell, Not Reported in F.Supp.3d (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 234722
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Diane J. DAVIS, Plaintiff,
v.
Julie CAMPBELL, as the assigned Judge of Chenango
County Family Court; and Karen Peters, as Chief
Judge, New York State Supreme Court Appellate
Division, Third Judicial Department, Defendants.
No. 3:13–CV–0693 (LEK/ATB).
|
Jan. 22, 2014.
Attorneys and Law Firms
Diane J. Davis, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
*1 This matter comes before the Court following a Report–
Recommendation filed on June 26, 2013, by the Honorable
Andrew T. Baxter, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.1. Dkt. No. 3 (“Report–
Recommendation”). Pro se Plaintiff Diane J. Davis brought
this civil rights action challenging the legality of state-
court child custody proceedings that occurred in Chenango
County Family Court in 2011 and 2012. 1 Report–Rec. at
2–9. Plaintiff names as defendants two state-court judges,
Julie Campbell and Karen Peters (“Defendants”), and seeks
declaratory and injunctive relief. See generally Report–
Rec.; Dkt. No. 1 (“Complaint”). Because Plaintiff applied
to proceed in forma pauperis, Judge Baxter reviewed the
Complaint pursuant to 28 U.S.C. § 1915. Report–Rec. at
1. Judge Baxter recommends that Plaintiff's Complaint be
dismissed in its entirety because it fails to state a claim on
which relief may be granted, and because Defendants are
immune from suit. See Report–Rec. at 13–18. Plaintiff timely
filed Objections to the Report–Recommendation. Dkt. No. 5
(“Objections”).
A district court must review de novo any objected-to portions
of a magistrate judge's report-recommendation or specific
proposed findings or recommendations therein and “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); accord FED. R. CIV. P. 72(b); see also Morris v.
Local 804, Int'l Bhd. of Teamsters, 167 F. App'x 230, 232
(2d Cir.2006); Barnes v. Prack, No. 11–CV–0857, 2013 WL
1121353, at *1 (N.D.N.Y. Mar. 18, 2013). 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. Chylinski v. Bank of
Am., N.A., 434 F. App'x 47, 48 (2d Cir.2011); Barnes, 2013
WL 1121353, at *1; Farid v. Bouey, 554 F.Supp.2d 301, 306–
07 & n. 2 (N.D.N.Y.2008); see also Machicote v. Ercole,
No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug.
25, 2011) (“[E]ven 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.”).
Judge Baxter recommends dismissal because, inter alia,
Defendants are protected by judicial immunity. Report–
Rec. at 13–15. Plaintiff states in her Objections that she
intended to sue the courts on which Defendants sit: Chenango
County Family Court and the New York State Supreme
Court Appellate Division, Third Judicial Department (“Third
Department”). Objs. at ¶¶ 7–9, 15. However, these courts
are also immune from suit. As branches of the New York
State Unified Court System, the Chenango County Family
Court and the Third Department are “arms of the state”
and are therefore protected by sovereign immunity, which
bars suits in federal court against states and state officials
acting in their official capacities. See, e.g., Gollomp v. Spitzer,
568 F.3d 355, 386 (2d Cir.2009); Bey v. Brooklyn Fam.
Ct., No. 11–CV–5209, 2012 WL 1145933, at *2 (E.D.N.Y.
April 5, 2012); McKnight v. Middleton, 699 F.Supp.2d 507,
521 (E.D.N.Y.2010). Accordingly, allowing Plaintiff leave to
amend the Complaint and name the state courts as defendants
would not remedy its deficiencies.
*2 The remainder of Plaintiff's Objections are irrelevant,
conclusory, or duplicative of arguments that were before
Judge Baxter. 2 See generally Objections. The Court therefore
reviews the remainder of the Report–Recommendation for
clear error and finds none.
Accordingly, it is hereby:
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ORDERED, that the Report–Recommendation (Dkt. No. 3)
is APPROVED and ADOPTED in its entirety; and it is
further
ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED in its entirety; and it is further
ORDERED, that the Court hereby certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this matter would
not be taken in good faith; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Decision and Order upon Plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
The Clerk has sent to the court a civil rights complaint,
together with an application to proceed in forma pauperis
(“IFP”), filed by pro se plaintiff, Diane J. Davis. (Dkt.Nos.1,
2).
I. IFP Application
A review of plaintiff's IFP application shows that she declares
she is unable to pay the filing fee. (Dkt. No. 2). This court
agrees, and finds that plaintiff is financially eligible for IFP
status.
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines that
the action is (i) 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)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir.1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Bell Atl. Corp., 550
U.S. at 555). The court will now turn to a consideration of the
plaintiff's complaint under the above standards.
II. Complaint
*3 In this civil rights complaint, plaintiff is challenging
proceedings that occurred in the Chenango County Family
Court in 2011 and 2012, relative to the custody of her
grandson and relative to a neglect petition that was filed
against her. (Compl.) (Dkt. No. 1). Plaintiff alleges that she
had custody of the child for seven years (2005–2012), during
which time the child's father was serving a criminal sentence
for sexual abuse. (Compl.¶ 6). Plaintiff claims that when the
child's father was released from custody, he attempted to
reestablish contact with the child, however, the child reported
that his father had molested him during visitation. (Compl.¶¶
8–10)
Notwithstanding these allegations, the father filed a custody
petition in the Chenango County Family Court to obtain
custody of the child from plaintiff. At the same time, plaintiff
filed cross-petitions to modify the father's visitation rights
because of the alleged abuse. (Compl.¶ 11–12). Plaintiff
alleges that her first assigned attorney requested that the
Family Court relieve him because “the child's father made
many custody petitions,” and the attorney would not be able
to represent plaintiff properly. (Compl.¶¶ 13–14). Defendant
Campbell, the Family Court Judge, assigned Andrew Puritz,
Esq., who plaintiff alleges “had no time for Plaintiff
whatsoever.” (Compl.¶ 15).
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Plaintiff claims that the child's school reported the child's
allegations of sexual abuse to the Chenango County Child
Protective Service (“CPS”). (Compl.¶ 16). Plaintiff also states
that she “would file new petitions as new allegations came
in,” but that after plaintiff had filed three petitions in an
eight-month period, defendant Campbell issued an order
prohibiting plaintiff from filing petitions on her own and
directing that any petition be filed by her attorney, Mr. Puritz.
(Compl.¶¶ 17–18). However, plaintiff claims that Mr. Puritz
refused “several times” to file petitions on plaintiff's behalf.
(Compl. ¶ 19). Plaintiff claims that by forbidding her from
filing “new” petitions pro se, and requiring her to proceed
with counsel, without giving plaintiff an opportunity to be
heard, defendant Campbell was violating plaintiff's federal
constitutional rights.
Plaintiff alleges that she continued to report the child's
allegations of sexual abuse to the Child Abuse Hotline.
(Compl.¶ 25). Plaintiff claims that one of the CPS workers
failed to properly report the allegations, and in July of 2011,
plaintiff reported the CPS worker to the “hotline.” Plaintiff
claims that the individual on the telephone “got really mad”
and told plaintiff that she would be hearing from the CPS
worker in question “within the hour.” (Compl. ¶¶ 26–27). The
CPS worker called plaintiff and made arrangements to meet
at the “victim's advocate's office,” but told plaintiff that Mr.
Puritz would not “do anything for her.” Plaintiff also claims
that, in retaliation for reporting the CPS worker, she filed a
neglect petition against plaintiff. (Compl.¶¶ 29–30).
*4 Plaintiff claims that as a result of the neglect petition,
defendant Campbell “took” the child from plaintiff's custody
without notice or hearing, and placed the child with his
father, “a convicted level III child molester, without any
precautions against the continuing sexual abuse reported by
the child.” (Compl.¶ 31).
Attorney Puritz was assigned to represent plaintiff on the
neglect case, but plaintiff claims that Attorney Puritz never
filed a petition to have the child returned to plaintiff or even
told plaintiff that such a procedure was available. (Compl.¶
32). Plaintiff alleges that Attorney Puritz did not represent
her properly and consistently ignored her telephone calls and
letters. Attorney Puritz told plaintiff that he knew that the
child was going to be taken, but never informed plaintiff.
(Compl.¶ 34). Plaintiff states that there was a “court hearing,”
but plaintiff never received notice from the court. (Compl.¶
35). Instead, the notice went to Mr. Puritz, and he failed to
notify plaintiff. Attorney Puritz appeared for the hearing, but
did not request an adjournment so that plaintiff could get
notice and an opportunity to be heard. (Compl.¶ 36).
Plaintiff claims that the CPS drove to plaintiff's house 15
minutes before the removal hearing 1 was to start, to notify
plaintiff of the hearing. Plaintiff was not home and states that
her twin sister did not accept service “because notice was
insufficient.” (Compl.¶¶ 37–40). Plaintiff states that she made
multiple applications for another attorney “because Mr. Puritz
did not want to do his job.” (Compl.¶ 41).
Plaintiff alleges that when she managed to get Mr. Puritz on
the telephone, he told her that he had 70 cases along with
plaintiff's neglect case, he had to take care of his “paying
clients” first, and he had no time for her case. (Compl.¶¶
43–45). Plaintiff states that she reported this conversation to
the Clerk of the Family Court and to the “Public Defender's
Office.” Plaintiff claims that the Public Defender's Office
took plaintiff's application for new counsel, but defendant
Campbell refused to appoint a new attorney without an
explanation. (Compl.¶¶ 46–47). Plaintiff “believes” that the
refusal to appoint new counsel, knowing that the assigned
attorney refused to do his job, was an unconstitutional
“policy” of the Family Court. (Compl.¶ 48–49).
Plaintiff states that during the pendency of the child neglect
proceedings against plaintiff, the child's father filed a custody
petition to have custody returned to him. The neglect petition
against the plaintiff and the custody petition filed by the
child's father were scheduled to be heard together. Trial for
both petitions was scheduled for January 23, 2012. (Compl.¶¶
50–51).
The complaint states that at the end of December “2012,” 2
she became “fed up” with Mr. Puritz's refusal to work, and
with the assistance of her “extended family,” collected enough
money for a retainer and hired private counsel. 3 (Compl.¶
52). Plaintiff alleges that her new attorney immediately
began working and filed the notarized “consent to change
attorneys.” (Compl.¶ 53). Counsel served the document on
Mr. Puritz, but he did not transfer plaintiff's file for two weeks,
notwithstanding the impending trial date. (Id.)
*5 Plaintiff's new counsel continued to act on plaintiff's
behalf in Family Court and filed witness lists for the trial.
The attorney also filed an ex parte application for the
funds, necessary to subpoena factual witnesses and to call
expert witnesses. (Compl.¶¶ 54–55). Counsel also filed an
application to adjourn the trial. (Compl.¶ 55). At the same
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time, the child's father filed a motion to disqualify plaintiff's
retained counsel because counsel's husband represented
the child's father in the criminal case that resulted in
his conviction. (Compl.¶ 56). Notwithstanding plaintiff's
opposition to the disqualification, defendant Campbell
granted the motion, and on January 18, 2012, reinstated
Attorney Puritz as counsel for plaintiff, without plaintiff's
consent. (Compl.¶¶ 57–61).
Plaintiff claims that defendant Campbell forced her to proceed
to trial with unprepared counsel, who had an “obvious
grudge” against plaintiff for firing him. (Compl.¶ 67).
Attorney Puritz did not represent her properly and did not
have her best interests in mind when he handled her three-
week trial. (Compl.¶ 65, 69). Specifically, plaintiff alleges
that Attorney Puritz did not make proper objections, and “in
fact, ... made no hearsay objections,” refused to call all of
plaintiff's desired witnesses, and he allowed CPS to introduce
records that were sealed and inadmissible. (Compl.¶¶ 70–
73). Defendant Campbell even offered to help Attorney Puritz
subpoena witnesses, although she had not given the same
assistance to retained counsel. (Compl.¶ 72).
The custody and neglect petitions were decided against
plaintiff, and all her visitation with the child was terminated.
(Compl.¶¶ 74–75). Plaintiff states that she appealed to
defendant Peters's court (the Appellate Division, Third
Department) and “initially” proceeded pro se on the appeal.
(Compl.¶ 75). Plaintiff claims that defendant Campbell
refused to give plaintiff access to her file for the appeal,
claiming “a policy” that only attorneys could look at the file
and telling plaintiff she should hire an attorney or ask for
assigned counsel. (Compl.¶ 76).
Plaintiff states that she was nervous that her appeal would be
dismissed as untimely, so she asked the Appellate Division for
assigned counsel. (Compl.¶ 77). The first attorney assigned by
the Appellate Division had a conflict, and a second attorney,
Sam D. Castellino, was appointed. (Compl.¶ 80). Plaintiff
was unhappy with Mr. Castellino's performance. (Compl.¶¶
82–91). Plaintiff did not share Mr. Castellino's view that
plaintiff should “work with” Social Services and claims that
Mr. Castellino refused to seek relevant records and exhibits.
(Compl.¶¶ 82, 86–88). Plaintiff alleges that, although Mr.
Castellino asked for reversal of Judge Campbell's decision, he
also suggested that plaintiff be placed under CPS supervision,
a proposal with which plaintiff strongly disagreed. (Compl.¶
89). Mr. Castellino also refused to raise issues of judicial bias,
prejudice, misconduct, and ineffective representation at trial.
(Compl.¶ 90).
*6 Plaintiff ultimately asked Mr. Castellino to withdraw,
and he did so. (Compl.¶ 91). Plaintiff was appointed another
attorney, Ms. Corbett. (Compl.¶ 92). However, plaintiff
became displeased with Ms. Corbett's performance when
Ms. Corbett decided to use Mr. Castellino's appellate brief,
rather than write her own, knowing that Mr. Castellino's
brief contained the offer to have plaintiff supervised by CPS.
(Compl.¶¶ 93–94). Ms. Corbett also told plaintiff that Mr.
Castellino was a friend of hers, that he did a “fabulous job”
on the appeal, and that Mr. Puritz did an “excellent” job
as plaintiff's trial counsel. She suggested that plaintiff go to
counseling for six months and then reapply for visitation with
the child. (Compl.¶ 95).
Plaintiff states that she also learned that there was a “cap”
on attorneys fees in the Appellate Division, and that with the
rate of $75.00 per hour, an attorney can only afford to spend
62 hours and 40 minutes working on a file, even if the case
required much more. Plaintiff states that she was never given
access to her file so that she could assess the magnitude of her
own record. Plaintiff seeks to challenge the “cap rule” of the
Appellate Division on “the grounds of equal protection and
access to courts.” (Compl.¶¶ 97–104).
Plaintiff states that, from her conversations with “several
attorneys,” she believes that attorneys are “deadly afraid”
to raise issues of judicial bias, prejudice, and misconduct.
(Compl.¶ 105). Because of this fear, plaintiff believes that
her right to raise relevant issues has been prejudiced,
and she states that she has “reversible issues” on appeal
based on defendant Campbell's bias. (Compl.¶ 106). Plaintiff
complains that defendant Peters's court consistently assigns
counsel who are “related to the Respondent” or who
would not work for her “fully” because of restrictions in
compensation or fear of sanctions. (Compl.¶ 107).
Plaintiff asks for declaratory and injunctive relief:
(1) declare unconstitutional the “rule or policy” of the
Chenango Family Court prohibiting pro se appellants
access to their own file;
(2) declare unconstitutional the “rule or policy” of the
Chenango County Family Court forbidding the filing of
new petitions by pro se litigants who are represented by
assigned counsel in pending proceedings;
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(3) declare unconstitutional the “rule or policy” of the
Chenengo County Family Court to “impose” assigned
counsel who “refuse” to do their work properly on
indigent litigants; and
(4) declare unconstitutional the “rule or policy” of the
Appellate Division to cap compensation of assigned
counsel.
(Compl. at pp. 12–13). For each of the above requests,
plaintiff asks the court to enjoin the enforcement of the policy
and to appoint a federal court monitor to “verify” compliance.
(Id.)
III. Abstention
A. Legal Standards
Pursuant to Younger v. Harris, 401 U.S. 37, 43–45 (1971),
the District Court is without jurisdiction under the abstention
doctrine if there is an ongoing state proceeding; where an
important state interest is implicated; and the plaintiff has
an avenue open for review of constitutional claims in state
court. See Parent v. New York, 485 F. App'x 500, 503 (2d
Cir.2012) (quoting Younger, supra; Liberty Mut. Ins. Co. v.
Hurlbut, 585 F.3d 639, 647 (2d Cir.1997)). The Younger
doctrine originally applied only to criminal proceedings,
but is now applicable to civil actions as well, including
state administrative proceedings. Id. (citations omitted). The
doctrine also applies to claims for declaratory and injunctive
relief. Id.
B. Application
*7 Plaintiff states in her complaint that appellate counsel
was given until June 7, 2013 to decide whether to use
former counsel's brief on appeal or to submit her own brief.
(Compl.¶¶ 92–94). Based on a deadline of June 7, 2013 for
determining whether to file a brief or use Mr. Castellino's
brief, it appears that plaintiff's state court appeal is still
pending in the Appellate Division. Thus, there is an ongoing
state court proceeding, and the first criterion in the abstention
analysis is met.
With respect to the second factor, it has been held that the
“resolution of domestic matters has been recognized as an
important state interest.” Parent, 485 F. App'x at 503–504
(citing Elk Grove Unified School Dist. v. Newdow, 542 U.S.
1, 12–13 (2004) (“ ‘[T]he 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.’ ”)). The case also involves matters challenging the
constitutionality of judges' actions. It has been held that
“few interests can be considered more central than a state's
interest in regulating its own judicial system.” Spargo v. New
York State Com'n on Judicial Conduct, 351 F.3d 65, 75 (2d
Cir.2003) (citing Landmark Communications, Inc. v. Virginia,
435 U.S. 829, 848 (1978)). Because this case involves custody
matters, domestic relations, and the conduct of state court
judges in the course of exercising their jurisdictions, the case
falls within the area of important state interest. Thus, the
second factor also weighs in favor of abstention.
Finally, plaintiff has failed to show that there is no avenue
for any constitutional claims in state court. Plaintiff must
demonstrate that state law bars the effective consideration
of her constitutional claims. Spargo, 351 F.3d at 78. The
relevant question is whether the state's procedural remedies
could provide the relief sought, not whether they will provide
the constitutional ruling that plaintiff seeks. Id. at 79. Simply
because a state court has not ruled in plaintiff's favor does not
render the remedy inadequate for purposes of the abstention
doctrine. Parent, 485 F. App'x at 504.
Although plaintiff in this case complains bitterly about her
various assigned attorneys, she has named as defendants only
the Family Court judge assigned to her case and the Chief
Judge of the Appellate Division. She claims that she has been
told that attorneys will not raise issues of judicial bias or
misconduct. The first three of four claims for relief involve
only the alleged “policy” of the Family Court. (Compl. at
12). To the extent that plaintiff alleges that the Family Court
judge engaged in some sort of misconduct, the State of
New York provides a mechanism to file complaints against
state court judges. See N.Y. Jud. Law § § 41–47. New York
has created the State Commission on Judicial Conduct to
review complaints against judges, relating to the conduct,
qualifications, fitness to perform, or the performance of
official duties of any judge. Id. § 41(1). The governing
statute is accompanied by specific regulations. N.Y.Code
Comp.Code & Regs., tit. 22, § 100.2. These provisions are
also reflected in the New York State Constitution, with review
of the Commission's decisions in the New York Court of
Appeals. N.Y. Const., Art. 6, § 22(d).
*8 Thus, plaintiff could raise whatever misconduct claims
she wishes under New York law and regulations. Where
state remedies are available, the federal court should assume
that state procedures will afford an adequate remedy, in the
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absence of “unambiguous authority” to the contrary. Diamond
“D” Construction Corp. v. McGowan, 282 F.3d 191, 202 (2d
Cir.2002) (quoting Pennzoil v. Texaco, 481 U.S. 1, 15 (1987)).
Plaintiff's conclusory claims of bad faith or retaliation are
insufficient to establish that she cannot receive a full and
fair adjudication in the state court. See Bobrowsky v. Yonkers
Courthouse, 777 F.Supp.2d 692, 710 n .27 (S.D.N.Y.2011)
(conclusory allegations will not overcome the presumption
that plaintiff will receive a fair adjudication in state court).
Therefore, even assuming that the court had jurisdiction over
plaintiff's claims, the final abstention requirement weighs in
favor of the court declining jurisdiction. Even if the court were
not to abstain, dismissal would be appropriate.
IV. Judicial Immunity
A. Legal Standards
With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions. Mireless v. Waco, 502 U.S. 9, 9–10 (1991). 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.” 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. Imbler v. Pachtman, 424 U.S. 409, 419 n. 12
(1976) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).
Judicial immunity is immunity from suit, not just immunity
from the assessment of damages. 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.” Mireles, 502 U.S. at 11–12.
B. Application
In this case, plaintiff has named two judges as the only
defendants: the Family Court Judge assigned to her case and
the Chief Judge of the Appellate Division, Third Department.
Every action alleged to have been taken by either judge
was in her judicial capacity and within her jurisdiction. The
handling of plaintiff's file and the appointment of counsel is
well within their judicial functions. Neither of the exceptions
to judicial immunity exist in this case. The Second Circuit has
specifically held that a Family Court judge's determination
of reasonable attorneys fees is a judicial act that is entitled
to absolute immunity. Bliven v. Hunt, 579 F.3d 204, 212 (2d
Cir.2009).
Judicial immunity does not bar a claim for prospective
injunctive relief against a judicial officer acting in her
judicial capacity, Pulliam v. Allen, 466 U.S. 522, 541–42
(1984). However, Congress has statutorily provided for such
immunity by amending section 1983 to provide that in “any
action brought against a judicial officer for an act or omission
taken in such officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.” 42 U.S.C. § 1983, as
amended by Federal Courts Improvement Act of 1996, §
309(c), Pub.L. No. 104–317, 110 Stat. 3847, 3853 (1996).
*9 In this case, plaintiff does not allege that any
declaratory relief was unavailable in state court, and
generally, declaratory relief against a judge for actions taken
within his or her judicial capacity is ordinarily available by
appealing the judge's order. LeDuc v. Tilley, No. 05–CV–157,
2005 WL 1475334, at *7 (D. Conn. June 22, 2005) (citing
cases). Plaintiff has appealed the Family Court Judge's order,
and that appeal appears to be pending.
The doctrine of judicial immunity also does not shield judges
from claims for prospective declaratory relief.” LeDuc, 2005
U .S. Dist. LEXIS 12416, at *18. In this case, plaintiff's
request for declaratory relief is purely retrospective. She seeks
a declaratory judgment that past actions that occurred in
the context of the Family Court proceedings violated her
constitutional rights. 4 Although she states her requests for
“relief” in future terms and refers to the judges' actions as
“policies,” essentially, in her first three claims, she is asking
the court to invalidate the actions of the Family Court Judge. 5
Plaintiff's appeal of those orders and the ultimate custody
decision is still pending. Thus, both judges are entitled to
judicial immunity as to all claims. 6
V. Merits
A. Fee “Cap”
The court must also note that plaintiff's fourth cause of
action misstates the law that is the basis for her claim.
Plaintiff asks the court to declare the “policy” of the Appellate
Division to “cap compensation of assigned counsel at 62.7
hours of their work ....“ (Compl. at 13). The fee cap is
not defendants' “policy.” It is a statutory provision. New
York County Law § 722–b provides for the representation
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of persons accused of a crime or parties before the
Family or Surrogates Court. Section 722–b(1) (b) provides
that attorneys so appointed shall receive $75.00 per hour
and reimbursement for expenses reasonably incurred. This
includes trial, appellate and other types of representation.
The statute provides that for “representation on an appeal,
compensation and reimbursement shall be fixed by the
appellate court .” Id. § 722–b(3). While it is true that there
is a “cap” on fees of $4,400.00, the statute provides that
in extraordinary circumstances, the trial or appellate court
may provide for compensation in excess of the limit and
for payment of compensation and reimbursement before the
completion of representation. Id.
The allegations in the complaint are unclear. Although
plaintiff argues that the fee cap is unconstitutional, she
seems to be aware that attorneys may request additional
compensation. See Compl. ¶ 103 (“Upon information and
belief, none of these attorneys applied for additional
compensation ....”) Plaintiff seems to argue that it was
“unlikely” that her attorneys “read the entire record in a matter
of days,” and thus, they did not have enough time to work
on her appeal. She states that “[m]erely to read 1,800 pages
of the record requires 90 hours of work, and that does not
include legal research, drafting or putting the record together,
including tables of contents which is a job in itself.” (Compl.¶
101). Plaintiff assumes that if it takes 90 hours of work, but
an attorney can only devote approximately 62 hours of work
prior to reaching the cap, her attorneys must not have had
sufficient time to prepare a proper appeal because they never
asked for additional compensation. She appears to blame the
cap for this problem.
*10 Plaintiff's allegations fail to state a constitutional claim.
She is speculating that because her attorneys did not ask
for more money (that she is aware of), they must not have
spent enough time on her appeal and thus, plaintiff's access to
courts, due process, and equal protection rights were violated.
There is absolutely no basis for this claim. She was not
affected by the fee cap, 7 and in any event, neither of the
defendants would have had any responsibility for the statute
or for any attorney failing to ask for additional compensation.
B. Hybrid Representation
1. Legal Standard
As stated above, there is no constitutional right to “hybrid”
representation. Collins v. Beaver, No. 03–CV–416, 2005 WL
1801603, at *11 (E.D.N.Y. July 27, 2005). This is true under
either New York law or federal law. Id. (citing People v. White,
73 N.Y.2d 468, 479, cert. denied, 493 U.S. 859 (1989)). Even
a criminal defendant has no right to file a pro se supplemental
brief. Id. Although indigents have a right to appear pro se and
a right to appointed counsel, those rights may not be exercised
at the same time. Id. (citing Ennis v. LeFevre, 560 F.2d 1072,
1075 (2d Cir.1977).
2. Application
Plaintiff claims that the Family Court's “rule or policy”
preventing “new pro se petitions by individuals represented
by assigned counsel” is unconstitutional. Plaintiff appears
to believe that the fact that plaintiff was filing multiple
petitions claiming new instances of alleged abuse of the child,
these constituted “new” petitions that she was entitled to
file pro se, even though she was represented by counsel on
the custody issue. Plaintiff was not entitled to do so, and
she was not denied access to courts when the Family Court
limited her filings to those made by her assigned attorney. No
constitutional claim has been stated.
VI. Amendment
A pro se litigant's complaint should not be dismissed “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, 705 (2d Cir.1991).
In this case, plaintiff is suing two judges. Based upon the
doctrines of abstention and of judicial immunity, plaintiff
would be unable to amend the complaint to state a valid
claim against either of these two judges. Thus, this court will
recommend that, if this report is adopted, the court deny leave
to amend.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion for IFP status (Dkt. No. 2)
is GRANTED ONLY FOR PURPOSES OF FILING THIS
COMPLAINT, and it is further
RECOMMENDED, that plaintiff's complaint be
DISMISSED IN ITS ENTIRETY FOR FAILURE TO
STATE A CLAIM AND BASED ON IMMUNITY,
pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii)-(iii), and it is
RECOMMENDED, that if the court approves this
recommendation, it further certify that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3), and it is
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*11 ORDERED, that the Clerk serve a copy of this Order
upon Plaintiff in accordance with the Local Rules.
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. 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), & 6(e).
All Citations
Not Reported in F.Supp.3d, 2014 WL 234722
Footnotes
1 For a full discussion of Plaintiff's allegations, reference is made to the Report–Recommendation.
2 Plaintiff objects to the referral of her Complaint to a magistrate judge. Objs. ¶¶ 30–32, 34. However, under
28 U.S.C. 636(b), the Court may designate a magistrate judge to submit recommendations as to dispositive
matters, and the Court may accept, reject, or modify those recommendations.
1 Plaintiff occasionally includes dates in her complaint. However, it is difficult to determine what hearing plaintiff
is discussing. She states in ¶ 35 that after the child was taken there was “also a court hearing” of which she
never received notice. However, in ¶ 37, she discusses a “removal hearing” of which she was improperly
“notified” by CPS driving to plaintiff's house 15 minutes prior to the hearing. It is unclear whether these are
the same, or two separate hearings.
2 Plaintiff may mean December of 2011 because the trial date was January 2012. (Compl.¶ 51).
3 Plaintiff does not include her retained attorney's name in the complaint.
4 As stated above, plaintiff also asks that the court appoint a “federal court monitor” to verify compliance.
(Compl. at 12–13).
5 It is meritless to assert, inter alia, that because she claims that she was appointed counsel that did not perform
to her liking, it was the “rule or policy” of the Chenengo County Family court to “impose upon indigent litigants
assigned counsel who refuse to do their work properly and who are fired for cause.” (Compl. at 12).
6 The court would point out that state law also supports this application of judicial immunity. In Swain v. New
York, 294 A.D .2d 956, 741 N.Y.S.2d 788, 789 (4th Dep't 2002), the Appellate Division held that the allegedly
negligent acts of the court and its clerks in conjunction with the assignment of counsel who allegedly failed
to perfect plaintiff's timely appeal were “cloaked with judicial immunity.” (citations omitted), leave to app. den.
99 N.Y.2d 501, 752 N.Y.S.2d 588 (2002).
7 The adequacy of fees for assigned counsel has been the topic of various suits in both state and federal court,
most of which have been brought by assigned counsel, challenging either the hourly rate or the procedures by
which attorneys are appointed in criminal cases. See e.g. Bliven, supra; Zeigler v. New York, No. 5:11–CV–37,
2013 WL 2461453 (N.D.N.Y. June 7, 2013) (assigned counsel attorneys and criminal defendants challenging
the adequacy of assigned counsel compensation); Campbell v. Poole, No. 04–CV–6261, 2008 WL 2561998,
at *2 (W.D.N.Y. June 26, 2008) (discussing alleged inadequacy of fees in relation to a petitioner's habeas
corpus application based on ineffective counsel); Levinson v. Lippman, 4 N.Y.3d 280, 794 N.Y.S.2d 276, 827
N.E.2d 259 (2005) (attorneys challenged validity of court rule providing for administrative review of fee awards
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in excess of statutory limits-rule held valid); New York County Lawyers Ass'n v. State, 192 Misc.2d 424,
745 N.Y.S.2d 376 (N.Y.Sup.Ct.2002) (New York County attorneys challenging the caps on amounts payable
to assigned counsel—granting preliminary injunction raising the rate paid to counsel, until the legislature
modified N.Y. County Law § 722–b and N.Y. Judiciary Law § 35, raising the rates payable to assigned
counsel).
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 1923236
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Milan HALL, Plaintiff,
v.
CLINTON COUNTY, Defendant.
8:18-CV-1405 (GTS/CFH)
|
Signed 04/21/2020
Attorneys and Law Firms
MILAN HALL, Plaintiff, Pro Se, 36 Bell Road, Chazy, NY
12921.
OF COUNSEL: THOMAS K. MURPHY, ESQ., MURPHY
BURNS LLP, Counsel for Defendant, 407 Albany Shaker
Road, Loudonville, NY 12211.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se civil rights
action filed by Milan Hall (“Plaintiff”) against Clinton County
(“Defendant”), is Defendant's motion to dismiss Plaintiff's
Amended Complaint for failure to state a claim upon which
relief can be granted. (Dkt. No. 13.) For the reasons set forth
below, Defendant's motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Amended Complaint
Plaintiff filed an Amended Complaint in accordance with this
Court's Decision and Order of August 26, 2019. (Dkt. No.
11 [Decision and Order filed Aug. 26, 2019].) Generally, in
his Amended Complaint, Plaintiff alleges that, “commencing
on the 28 th day of June 2012,” Defendant has violated his
rights in five ways by using his marriage license as proof of
paternity: (1) Defendant has stripped him of his status as a
man and termed him a non-custodial parent and obligor; (2)
Defendant has wrongfully denied him the right to raise his
child as he pleases and to do so in privacy; (3) Defendant
has damaged his reputation in his community; (4) Defendant
has denied him the right to a trial by jury before ordering
him to pay child support; and (5) Defendant denied him
his right to due process when it failed to disclose to him
the legal consequences that would result from the signing
of his marriage license. (Dkt. No. 12 [Pl.’s Am. Compl.].)
Generally, based on these factual allegations, and construed
with special liberality, Plaintiff's Amended Complaint claims
that Defendant violated his rights to due process under the
Fifth and Fourteenth Amendments, and his right to a jury trial
under the Sixth and/or Seventh Amendments to the United
States Constitution and 42 U.S.C. § 1983. (Id.)
B. Parties’ Briefing on Defendant's Motion to Dismiss
1. Defendant's Memorandum of Law
Generally, in its motion to dismiss Plaintiff's Amended
Complaint, Defendant makes two arguments. (Dkt. No. 13,
Attach. 2 [Def.’s Mem. of Law].) First, Defendant argues that
Plaintiff's Amended Complaint fails to state a claim upon
which relief can be granted. (Id. at 7-8.) More specifically,
Defendant argues that Plaintiff has not pled facts plausibly
suggesting the existence of any municipal custom, policy, or
practice that caused his alleged constitutional deprivations,
but rather has merely alleged that New York's valid paternity
laws are not fair. (Id.) Defendant also argues that Plaintiff
is essentially seeking a nullification of a New York State
Family Court Order of Child Support against him, triggering
the domestic relations exception to federal court jurisdiction,
and thus, even if the Court were to find that Plaintiff has
stated a claim, the Court would not possess subject-matter
jurisdiction over any such claim. (Id.)
Second, Defendant argues that, based on the Amended
Complaint's own factual allegations, Plaintiff's claims are
untimely as a matter of law. (Id. at 8-9.) More specifically,
Defendant argues that the statute of limitations for personal
injury actions in New York is three years from when the
plaintiff knew or had reason to know of the injury, and that the
Amended Complaint expressly alleges that the child support
proceedings were initiated on June 28, 2012; yet Plaintiff did
not file this lawsuit until December 2018. (Id.) Defendant
argues that any allegations that the injury is ongoing (because
Plaintiff is under a continuous obligation to pay child support)
would not render his claim timely under the continuing
violation doctrine because, based on the factual allegations of
the Amended Complaint, he was (or reasonably should have
been) aware of that injury as early as June 28, 2012. (Id.)
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2. Plaintiff's Opposition Memorandum of Law
*2 Generally, in opposition to Defendant's motion, Plaintiff
makes four arguments. (Dkt. No. 15, at 4-5 [Pl.’s Opp'n
Mem. of Law].) First, Plaintiff argues that he is not alleging
that Defendant failed to inform him of the responsibilities
that could possibly result from children born during his
marriage at the time he signed the marriage license, but
that “Defendants failed to employ Due Process Safeguards
to ensure that the rights of the Plaintiff were protected,
and as a result the Plaintiff was defaulted into a Title IV-
D case from which he now suffers the deprivation of his
inherent rights”; however, he concedes that “[t]his deprivation
is extrinsically linked to the Defendants failure to employ
due process safeguards when presenting the Plaintiff with a
marriage certificate, the legal instrument that would later be
used to default the Plaintiff into a Title IV-D case.” (Id. at 4.)
Pointing to a federal statute requiring a state to have a civil
process for voluntarily acknowledging paternity that includes
the provision of due process and an explanation by the state of
the individual's rights and responsibilities of acknowledging
paternity, he appears to argue that Defendant violated his
right to due process by summoning him to a “fact finding”
hearing before a “Family Court Support Magistrate” because
the Federal Manual of Child Support requires that such a
proceeding should not have been presided over by “a judge
of the court.” (Id.)
Second, Plaintiff argues that he is not merely asking the Court
to overturn the child support order as Defendant suggests,
but is seeking a remedy for the violation of his constitutional
rights. (Id. at 4-5.)
Third, Plaintiff argues that it is a crime to deprive an
individual of his or her constitutional rights. (Id. at 5.)
Fourth, Plaintiff argues that his claims should not be found to
be untimely because he promptly filed his original Complaint
in 2018 as soon as he discovered that his rights had been
violated. (Id. at 5.)
II. GOVERNING LEGAL STANDARDS
It has long been understood that a dismissal for failure to
state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549
F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.)
(adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
some elaboration regarding that ground is appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed. R. Civ. P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d
at 212 n.20 (citing Supreme Court case). On the other hand,
the Supreme Court has held that, by requiring the above-
described “showing,” the pleading standard under Fed. R.
Civ. P. 8(a)(2) requires that the pleading contain a statement
that “give[s] the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Jackson, 549 F.
Supp. 2d at 212 n.17 (citing Supreme Court cases) (emphasis
added).
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212 n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
*3 Most notably, in Bell Atlantic Corp. v. Twombly, the
Supreme Court reversed an appellate decision holding that
a complaint had stated an actionable antitrust claim under
15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). In doing so, the Court “retire[d]” the famous
statement by the Court in Conley v. Gibson, 355 U.S. 41,
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45-46 (1957), that “a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Twombly, 127 S. Ct. at 560-61,
577. Rather than turn on the conceivability of an actionable
claim, the Court clarified, the “fair notice” standard turns on
the plausibility of an actionable claim. Id. at 555-70. The
Court explained that, while this does not mean that a pleading
need “set out in detail the facts upon which [the claim is
based],” it does mean that the pleading must contain at least
“some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[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, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [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.” Iqbal, 129 S.
Ct. at 1950 (internal quotation marks and citations omitted).
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Iqbal,
129 S. Ct. at 1949 (internal citations and alterations omitted).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citations omitted).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 1
III. ANALYSIS
*4 After carefully considering whether Plaintiff's Amended
Complaint should be dismissed, the Court answers this
question in the affirmative for the reasons stated in
Defendant's memorandum of law. (Dkt. No. 13, Attach. 2, at
7-9 [Def.’s Mem. of Law].) To those reasons, the Court adds
the following analysis.
As an initial matter, the Court finds that Plaintiff's claims,
to the extent that they seek an invalidation of a Family
Court child support order, are barred by the Rooker-Feldman
doctrine. Under the Rooker-Feldman doctrine, a federal court
lacks subject-matter jurisdiction where the following four
elements are met: (1) the plaintiff has lost in state court;
(2) the plaintiff complains of injuries caused by the state
court judgment; (3) the plaintiff invites the district court
to review and reject the state court judgment; and (4) the
state court judgment was rendered before the district court
proceedings commenced. Ganiyu v. Lopez, 19-CV-11605,
2020 WL 1467356, at *2 (S.D.N.Y. Mar. 25, 2020) (citing
Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85
[2d Cir. 2005]). It is evident from the Amended Complaint
that Plaintiff received a child support order against him, that
he now complains that the proceedings that resulted in that
order caused his alleged constitutional injuries, and that the
child support order was rendered before he commenced this
action. Additionally, although Plaintiff frames his argument
in terms of constitutional violations and inadequacies in the
proceedings underlying the support order, such arguments
amount to little more than a request for this Court to assess
whether the Family Court's reliance on the marriage license to
establish paternity was correct, something which this Court is
not permitted to do. See Kramer v. Dane, 17-CV-5253, 2018
WL 4489284, at *3 (E.D.N.Y. Sept. 19, 2018) (“[T]he fact that
plaintiffs assert that their constitutional rights were violated
during the state court proceedings does not except their claims
from the Rooker-Feldman doctrine.”); Davis v. Westchester
Cnty. Family Court, 16-CV-9487, 2017 WL 4311039, at *8
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(S.D.N.Y. Sept. 26, 2017) (finding “[t]he fact that Plaintiff is
challenging the constitutional adequacy of the proceedings is
of no help to him” in precluding application of the Rooker-
Feldman doctrine to his claims) (collecting cases). 2
*5 To the extent that Plaintiff seeks entitlement to relief
beyond a nullification of the child support order that would be
excepted from jurisdiction by the Rooker-Feldman doctrine,
the Court also finds that Plaintiff's claims pursuant to 42
U.S.C. § 1983 fail under Fed. R. Civ. P. 12(b)(6) as time-
barred. Plaintiff attached to the Amended Complaint a copy
of the Family Court's summons to a fact-finding hearing to
be held on July 30, 2012, before Support Magistrate Michael
J. Howley, and a copy of the Petition for Child Support filed
against Plaintiff that was the basis for that hearing. (Dkt.
No. 12, Attach. 1.) The Amended Complaint alleges that it
was the commencement of the proceedings against Plaintiff
through this petition in June 2012 that caused the deprivation
of his rights. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) The
Supreme Court has held that, “[b]ecause § 1983 claims are
best characterized as personal injury actions ... a State's
personal injury statute of limitations should be applied in
all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240-41
(1989). The Supreme Court found in particular that New
York's general or residual statute related to personal injury
actions should be applied, which sets a three-year statute of
limitations. Owens, 488 U.S. at 249-50; accord, Phillips v.
City of New York, 304 F. Supp. 3d 305, 311 (E.D.N.Y. 2018).
Such statute of limitations begins “when a plaintiff has a
complete and present cause of action, that is when the plaintiff
can file suit and obtain relief,” or, in other words, “when the
wrongful act or omission results in damages, ... and once the
plaintiff knows or has reason to know of the injury which
is the basis of his action.” McDonough v. Smith, 898 F.3d
259, 265 (2d Cir. 2018) rev'd on other grounds McDonough
v. Smith, 139 S.Ct. 2149 (2019).
In this case, Plaintiff acknowledges in his Amended
Complaint that his alleged constitutional harms occurred as
a result of the child support proceedings against him in late
June 2012. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) It is
therefore reasonable to find that Plaintiff knew or should have
known of the proceedings against him and the child support
order at the time those events occurred in 2012. Of note,
Plaintiff does not allege that he was never informed of either
the proceedings against him or of the child support order
itself until a later time. Nonetheless, Plaintiff did not file his
initial Complaint in this action until December 3, 2018, more
than six years later. (Dkt. No. 1 [Pl.’s Compl.].) Although
Plaintiff argues in his opposition memorandum of law that he
“promptly filed a complaint with the Federal District Court as
soon as he discovered his rights had indeed been violated,” he
offers no explanation in either the Amended Complaint or his
opposition memorandum of law as to why he seemingly did
not know of the alleged constitutional violations until 2018.
(Dkt. No. 15, at 5 [Pl.’s Opp'n Mem. of Law].) Additionally, it
does not matter when Plaintiff actually discovered a violation.
The relevant consideration is when he knew or had reason to
know of the alleged injury, and without any factual allegation
that Plaintiff was somehow left in the dark for six years
about the basis for the child support proceedings and order
against him (despite the factual statement in the order that
the proceeding against Plaintiff was authorized because he
and the child's mother had gotten married on July 24, 2010),
the Court cannot find that he has alleged facts plausibly
suggesting that he did not have reason to know of the alleged
injury as long ago as June of 2012. As a result, the Court finds
that Plaintiff's claims are barred by the statute of limitations.
The Court also finds that tolling is not warranted under
the circumstances alleged. Although the Second Circuit
recognizes the continuing violation doctrine, it has qualified
that the doctrine applies only to claims “composed of a
series of separate acts that collectively constitute one unlawful
practice,” or “claims that by their nature accrue only after
the plaintiff has been subjected to some threshold amount
of mistreatment.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d
Cir. 2015). Although Plaintiff alleges that the violations of
his rights “continue to this day” because he is still subject to
the child support order, the fact that he continues to suffer an
ongoing injury does not bring his claim under the auspices
of the continuing violation doctrine. In other words, each
payment Plaintiff is required to make under the child support
order is not a new and separate act and injury, but merely a
consequence of the initial act, namely, the proceedings and
the issuance of the child support order in 2012. Plaintiff had
a fully formed claim upon the occurrence of the relevant
proceedings and the issuance of the child support order. The
Court therefore declines to find that the continuing violation
doctrine applies to Plaintiff's claims, and finds instead that
there is no other apparent basis for tolling the statute of
limitations. Plaintiff's claims pursuant to 42 U.S.C. § 1983 are
therefore time-barred and must be dismissed.
*6 In the alternative to the finding that Plaintiff's claims are
time-barred and/or covered by the Rooker-Feldman doctrine,
the Court finds that he has not alleged facts plausibly stating
any claim upon which relief can be granted. As an initial
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matter, Defendant is correct that Plaintiff has again failed
to allege any facts plausibly suggesting a municipal custom,
policy, or practice to merit holding Defendant liable for the
alleged constitutional violations. The only apparent policy
identified by Plaintiff is the policy of allowing use of a
marriage license to create a presumption of paternity. (Dkt.
No. 12, at 5 [Pl.’s Am. Compl.].) However, as Defendant
argues, this “policy” is in fact a long-standing part of New
York common law, not merely a practice or rule put in
place by Defendant or the Clinton County Family Court.
See In re Findlay, 253 N.Y. 1, 6-7 (N.Y. 1930) (discussing
the presumption of legitimacy). Notably, Plaintiff has not
alleged facts plausibly suggesting that Defendant had a policy
of disallowing rebuttal of the presumption of legitimacy or
any other action of that nature that would have prevented
Plaintiff from providing evidence to rebut that presumption.
As a result, Plaintiff has not alleged facts plausibly suggesting
that the alleged constitutional violations were a result of any
policy imposed by Defendant, and the Court therefore finds
that Defendant cannot be held liable for the claims asserted
against it.
Even if Plaintiff had alleged facts plausibly suggesting the
existence of a municipal custom, policy, or practice, the Court
finds that Plaintiff has not stated a claim upon which relief
can be granted. Many of the claims asserted by Plaintiff
(i.e., that Defendant has stripped him of his status as a man,
violated his right to privacy, violated his right to raise his
child as he pleases, violated his right to trial by jury, and
defamed him) are either not facially viable legal claims under
the circumstances or are so vaguely asserted (i.e., without
sufficient supporting factual allegations) that they cannot be
found to plausibly state a claim upon which relief can be
granted. The Court therefore finds little need to discuss these
claims in any detail, but finds that they must be dismissed.
With regard to Plaintiff's due process claim, and particularly
Plaintiff's argument that Defendant's acceptance of the
marriage license as proof of paternity was a violation of
his right to due process, as the Court has previously found,
Plaintiff has not alleged facts plausibly suggesting that he
was denied the opportunity to present counter-evidence to
overcome the presumption that a child born in the context of
a marriage is the child of the married spouses. Rather, the
summons attached to the Amended Complaint notified him
of a fact-finding hearing that preceded the issuance of the
child support order. Plaintiff has not alleged facts plausibly
suggesting that he did not receive sufficient notice of the
commencement of the proceedings before the child support
order was enacted against him (or that he even attended
the hearing). Moreover, the summons specifically states that
“failure to appear will result in the entry of an order on default
unless service has been made by mail alone, in which event no
default may be entered without proof satisfactory to the court
that you have received actual notice of the commencement
of this proceeding.” (Dkt. No. 12, Attach. 1, at 1.) Without
any factual allegation plausibly suggesting that Plaintiff (a)
lacked notice of the hearing such that a default was improper,
or (b) attended the hearing but was denied the opportunity to
provide evidence to counter the presumption created by the
marriage license, the Court cannot find that he has alleged
facts plausibly suggesting that Defendant violated his due
process rights in relying on the marriage license when issuing
the child support order.
Plaintiff also argues that his due process rights were
violated by the fact that a Support Magistrate of the Family
Court granted the petition for child support because the
Federal Manual of Child Support requires that “[p]roceedings
conducted pursuant to either the expedited judicial or
expedited administrative process must be presided over an
individual who is not a judge of the court.” (Dkt. No. 15,
at 4 [Pl.’s Opp'n Mem. of Law].) However, even if Plaintiff
has alleged facts plausibly suggesting that Defendant violated
this provision of the Federal Manual of Child Support (a
finding that the Court does not make), he has made no factual
allegation plausibly suggesting how any such violation in
turn violated his due process rights under the United States
Constitution. 3
*7 Having already afforded Plaintiff an opportunity to
amend his Complaint, the Court finds that it need not grant
Plaintiff an opportunity to amend the Amended Complaint
to attempt to cure any of the above-mentioned deficiencies,
In any event, it finds those deficiencies to be substantive in
nature, due to the findings that the Court lacks subject-matter
jurisdiction to consider any claims that fall under the Rooker-
Feldman doctrine, and that any other potential claims are
untimely (and Plaintiff has not offered any indication that he
could allege facts to plausibly suggest that those claims were
in fact timely).
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 13)
is GRANTED; and it is further
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
ORDERED that Plaintiff's Amended Complaint (Dkt. No.
12) is DISMISSED. All Citations
Not Reported in Fed. Supp., 2020 WL 1923236
Footnotes
1 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1,
2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary
judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1]
documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering
a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where
a document is not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even
if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of
fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”)
(internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate
by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may
nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without
converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
2 The Court notes that, although Defendant argues that subject-matter jurisdiction is lacking over Plaintiff's
claims based on the domestic relations exception, the Second Circuit recently held that the domestic relations
exception does not apply in federal-question cases. Deem v. DiMell-Deem, 941 F.3d 618, 621 (2d Cir. 2019).
Although the Second Circuit also found that, notwithstanding the inapplicability of the domestic relations
exception, the separate domestic relations abstention doctrine does apply to federal-question cases, the
Court need not determine whether abstention would be appropriate in this case based on its finding that
the Rooker-Feldman doctrine divests the Court of subject-matter jurisdiction over any claims that would be
covered by that abstention. Finally, the Court notes that it may sua sponte consider the Rooker-Feldman
doctrine (even though Defendant never invoked it) because pursuant to Fed. R. Civ. P. 12(h)(3), the Court
may sua sponte consider whether it lacks subject-matter jurisdiction over a claim.
3 Of note, the New York Family Court Act indicates that support magistrates are in fact not “a judge of the
court” as Plaintiff appears to assert. See N.Y. Fam. Ct. § 439(a) (indicating that, although support magistrates
are appointed to have authority over certain matters related to support proceedings, their findings in many
cases are limited or overseen by “a judge of the court”). Given that Plaintiff himself acknowledges that the
decision-maker on the support petition was a “Family Court Support Magistrate” (an acknowledgment that is
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
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confirmed by the attachment to the Amended Complaint), the Court finds that Plaintiff has not alleged facts
plausibly suggesting that the use of a support magistrate was in anyway contrary to federal law or policy.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00156-AJB-ML Document 19 Filed 03/03/26 Page 71 of 129

Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2000 WL 1335865
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Martin JOHNSON, Plaintiff,
v.
THE CITY OF NEW YORK, Assistant District
Attorney Robert Henoch, Captain of Corrections Martin,
Corrections Officer Schmidt, Corrections Officer Brown
and Unidentified Correction Officers, Defendants.
No. 00CIV.3626(SHS).
|
Sept. 15, 2000.
OPINION AND ORDER
STEIN, D.J.
*1 Martin Johnson has brought this action pursuant to 42
U.S.C. § 1983 seeking monetary damages on the grounds that
the defendants—the City of New York, an Assistant District
Attorney, and certain Corrections Officers—violated his
constitutional rights under the Fourth, Eighth and Fourteenth
Amendments to the U.S. Constitution by failing to protect
him from an attack by fellow inmates against whom he had
arranged to testify. Johnson also asserts two tort claims. The
Assistant District Attorney moves to dismiss the complaint
as it pertains to him pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief can be granted and
pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. For the following reasons, the motion is granted
and the complaint is dismissed as to ADA Henoch.
BACKGROUND
The facts are taken from plaintiff's complaint and are assumed
to be true for purpose of this motion. In May of 1998 Johnson
was arrested for allegedly selling crack cocaine. Complaint
at 4. Shortly after his arrest, he entered into a cooperation
agreement with ADA Henoch to testify against several of
his co-defendants. 1 Id. ADA Henoch allegedly “assured”
plaintiff at that time that he “would protect him[ ]” from
possible retaliation by his co-defendants. Id. Johnson claims
that he was being held in Beacon, a housing area on Rikers
Island, which was in “the same general area” as where the
people against whom he was to testify were held and that he
alerted ADA Henoch of this fact. Id. ADA Henoch “explicitly
assured [him] that he would be safe” and that “he would be
placed in protective custody.” Id. at 4–5. Plaintiff also alerted
defendant Corrections Officers Martin, Schmidt, Brown and
“Unidentified Correction Officers” to his danger. Id. at 5.
On February 24, 1999, plaintiff was attacked by fellow
inmates “who called him a snitch as they beat and kicked
him.” Id. As a result of the beating, Johnson suffered a
fractured ankle, injuries to his head, neck and legs, and
damage to his retina that required surgery. Id. ADA Henoch,
after learning of the attack on plaintiff, “acknowledged [his]
prior request for protection.” Id.
As noted above, Johnson has filed this action against the City
of New York, Correction Officers Martin, Schmidt, Brown,
and ADA Henoch and the ADA has moved to dismiss the
complaint on the grounds that it fails to state a constitutional
claim for which relief may be granted and that he is entitled
to either absolute or qualified prosecutorial immunity.
DISCUSSION
When reviewing a motion to dismiss, a court must accept as
true the factual allegations of the complaint and must view
the pleadings in the light most favorable to and draw all
reasonable inferences in favor of the non-moving party. See
Jamison v. Dee, 2000 WL 502871 (S.D.N.Y. April 27, 2000)
(citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d
Cir.1993)). Dismissal of the complaint is only proper when “it
appears beyond doubt that plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
I. Absolute Immunity
*2 It is well-established that prosecutors are absolutely
immune from suits for damages arising from actions which
are “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430–
31, 96 S.Ct. 984, 994–95, 47 L.Ed.2d 128 (1976); see Buckley
v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d
209 (1993). Whether a prosecutor has absolute immunity
“depends principally on the nature of the function performed,
not on the office itself.” Ying Jing Gan v. City of New York,
996 F.2d 522, 530 (2d Cir.1993). Such functions include
the decision to bring charges against a defendant, see Gan,
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
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996 F.2d at 530, presenting evidence to a grand jury, see
Barret v. United States, 789 F.2d 565, 571–72 (2d Cir.1986),
and the evaluation of evidence prior to trial. See Kalina v.
Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471
(1997). Absolute immunity is not available, however, when
a prosecutor “undertakes conduct that is beyond the scope of
his litigation-related duties.” Barbera v. Smith, 836 F.2d 96,
99 (2d Cir.1987).
Barbera v. Smith, 836 F.2d 96, 100, is closely analogous
to this action. In Barbera, the Second Circuit held that a
prosecutor was not entitled to absolute immunity where he
twice refused to provide a cooperating witness with police
protection. Id. at 98. The witness had agreed to testify in return
for a more lenient sentence and was murdered by a contract
killer hired by the target of the prosecutor's investigation.
Id. The Court found that “the government was still seeking
evidence, including testimony from [the victim], that would
enable it to prosecute ...” and that “this task [providing
protection] was [not] so intimately associated with the judicial
phase of the criminal process ...” as to entitle the prosecutor
to absolute immunity. Id.
Here, as in Barbera, defendant's activities were not “so
intimately associated with the judicial phase of the criminal
process” as to entitle him to absolute immunity from suit. See
Gan, 996 F.2d at 531 (“the claim that [the prosecutor] failed
to protect [plaintiff] asserts conduct that plainly is not integral
either to a decision of whether or not to institute a prosecution
or to the conduct of judicial proceedings. Accordingly, if
[defendant] is to be accorded immunity ... it can only be
qualified immunity .”). Therefore absolute immunity is not
available to the district attorney in this action.
II. Qualified Immunity
In general, “the defense of qualified immunity cannot support
the grant of a ... 12(b)(6) motion for failure to state a claim
upon which relief can be granted.” Green v. Maraio, 722
F.2d 1013, 1018 (2d Cir.1983). Qualified immunity is an
affirmative defense that must be pleaded by the official
claiming it. See Satchell v. Dilworth, 745 F.2d 781, 784
(2d Cir.1984) (citing Harlow v. Fitzgerald, 457 U.S. 800,
815, 102 S.Ct. 2727, 72 L.Ed .2d 396 (1982)). Dismissal
for failure to state a claim is thus appropriate where the
complaint itself presents the qualified immunity defense. See,
e.g., Green, 722 F.2d at 1019. The United States Supreme
Court has also held that “unless the plaintiff's allegations state
a claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before
the commencement of discovery.” Mitchell v. Forsyth, 472
U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); See
also Robison v. Via, 821 F.2d 913, 920 (2d Cir.1987) (citing
Procunier v. Navarette, 434 U.S. 555, 565 (1978) (prison
officials entitled to dismissal of claims of violating prisoner's
First and Fourteenth Amendment rights by interfering with
mail where such rights had not been clearly established)).
Even when viewed in the light most favorable to plaintiff and
drawing all reasonable inferences in his favor, Mills, 12 F.3d
at 1174, Johnson's allegations regarding the District Attorney
do not state a violation of a clearly established constitutional
right. Thus, dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is
appropriate. See, e.g., Molinelli v. Tucker, 901 F.2d 13, 16 (2d
Cir.1990).
*3 Qualified immunity shields government actors
performing discretionary functions from “ ‘liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” ’ Lennon v. Miller, 66
F.3d 416, 420 (2nd Cir.1995) (quoting Harlow, 457 U.S. at
818). To determine whether a right was clearly established
at the time defendant acted, the Court must consider: “(1)
whether the right in question was defined ‘with reasonable
specificity’; (2) whether the decisional law of the Supreme
Court and the applicable circuit court support the existence of
the right in question; and (3) whether under preexisting law
a reasonable defendant official would have understood that
his or her acts were unlawful.” Gan, 996 F.2d at 532 (quoting
Jermosen v.. Smith, 945 F.2d 547, 550 (2d Cir.1992)).
The District Attorney claims that he is entitled to qualified
immunity because, even if he had a constitutional duty to
protect Johnson, it was not a clearly established duty. The Due
Process Clause itself does not require the State to protect “the
life, liberty, [or] property of its citizens against invasion by
private actors.” Deshaney v. Winnebago County Dep't of Soc.
Serves, 489 U.S. 189, 195, 109 S.Ct. 998, 1002, 103 L.Ed.2d
249 (1989). Therefore, as a general rule, “a State's failure to
protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” Id. at 197,
109 S.Ct. at 1004. The only judicially recognized exceptions
to this rule are custodial relationships where “the State takes a
person into its custody and holds him there against his will,”
Id. at 199–200, 109 S.Ct. at 1005 (the “special relationship”
exception), or when the government affirmatively creates or
increases the danger an individual is placed in. See Dwares
v. City of N.Y., 985 F.2d 94, 98–99 (2d Cir.1993) (the “state-
created danger” exception).
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Special relationships that have given rise to a governmental
duty to protect against third-person attacks include “custodial
relationships such as a prison and inmate or a mental
institution and involuntarily committed patient, and the
relationship between a social service agency and foster child.”
Gan, 996 F.2d at 532 (citing cases).
The Second Circuit has also recognized the state-created
danger exception to DeShaney's general rule. See Dwares,
985 F.2d at 99 (police officers agreed in advance with
members of a group to allow the group to assault the plaintiff,
did not interfere during the beating and did not arrest those
who assaulted the plaintiff); Hemphill v. Schott, 141 F.3d
412, 418 (2d Cir.1998) (arresting officers returned gun to
robbery victim and drove him to the scene of suspect's
arrest, where the victim shot the suspect); see also Freeman
v. Ferguson, 911 F.2d 52, 54 (8th Cir.1990) (reversing
dismissal on qualified immunity grounds against police chief
who instructed subordinates to ignore victim's request for
protection from her husband, who was the chief's friend).
*4 Johnson contends that the District Attorney's proffer
of the cooperation agreement and assurance that he would
protect plaintiff conferred upon the District Attorney a
constitutional duty to protect Johnson. 2 Plaintiff claims that
the prosecutor's duty to protect him was clearly established
by DeShaney and by Farmer v. Brennan, 511 U.S. 825,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison officials
may be held liable under Eighth Amendment for denying
humane conditions of confinement only if they know that
inmates face substantial risk of serious harm and disregard
that risk by failing to take reasonable measures to abate it).
However, neither DeShaney nor Farmer clearly establish the
law regarding plaintiff's allegations. While the very action
in question need not have been previously held unlawful
for a constitutional right to be clearly established, Duncan
v. Kean, 1995 WL 649931, *3 (S.D.N.Y. Nov. 6, 1995)
(citing Aveni v. Mottola, 35 F.3d 680, 686 (2d Cir.1994)), it
must be “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 639 107 S.Ct. 3034, 3039, 97
L.Ed.2d 523 (1987).
The Second Circuit has twice considered and rejected claims
against prosecutors for failure to protect a witness from attack
by a third party. See Barbera, 836 F.2d at 100–01; Gan, 996
F.2d at 533–34. In Gan, a panel of the Second Circuit wrote
that
“[p]laintiffs have not called to
our attention any case before or
since [Barbera ] ... in which
the lodging of a complaint with
law enforcement officials, or the
complainant's compliance with a
request to identify suspects, either
singly or in combination, has been
held (a) to create a relationship
that gives the complaining witness a
constitutional right to protection, or (b)
to impose a corresponding duty on a
prosecutor.”
Id. at 533–34.
Here, as in Gan, plaintiff points to no case, and the Court
is aware of none, where it has been held that a prosecutor's
alleged promise to protect an inmate who agrees to testify
creates a special relationship that gives rise to a constitutional
right to protection from a third party. Nor is the Court aware
of any decision which has held that the mere proffer of
a cooperation agreement by a prosecutor so increases the
danger to an inmate that it creates a constitutional duty for
the prosecutor to protect the inmate from potential attacks
by third persons. A prison official's willful failure to protect
an inmate from another inmate's violent actions violates the
Constitution if the officer was “deliberate[ly] indifferen[t] to
the consequences of his conduct for those under his control
and dependent upon him,” Morales v. New York State Dep't
of Corrections, 842 F.2d 27, 30 (2d Cir.1988). However, no
corresponding duty has been found to exist between an inmate
and prosecutor.
Based on the limited caselaw in existence at the time of the
alleged attack, and particularly because of the absence of any
caselaw which holds that any state actor other than a prison
official owes a duty to protect an inmate from another inmate's
violent actions, it cannot be said that it was clearly established
that defendant ADA Henoch had created or assumed a special
relationship with Johnson imbuing him with a constitutional
duty to protect him. Therefore, this Court “need not decide
whether [it] would hold that these circumstances create such
a right and corresponding duty, for in the absence of any
such holdings and in the face of the general rule articulated
in DeShaney, it could not have been clear to a reasonable
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
prosecutor that his failure to provide protection ... would
have violated [plaintiff's] rights under the Constitution.” Gan,
996 F.2d at 534. Defendant Henoch is therefore entitled to
qualified immunity.
III. The Pendent State Claims
*5 The ADA's motion to dismiss plaintiff's pendent state
law claims is likewise granted. The Court declines to exercise
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)
(3). Accordingly, the state law claims against ADA Henoch
are dismissed without prejudice. See United Mine Workers of
America v. Gibbs, 338 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966); Carnegie–Mellon University v. Cohill,
484 U.S. 343, 350 n. 7, 98 L.Ed.2d 720 (1988); Mayer v. Oil
Field Systems Corp., 803 F.2d 749, 757 (2d Cir.1986).
IV. CONCLUSION
For the reasons set forth above, the prosecutor's motion to
dismiss is granted and the complaint is dismissed as against
the assistant district attorney.
SO ORDERED:
All Citations
Not Reported in F.Supp.2d, 2000 WL 1335865
Footnotes
1 The complaint states that plaintiff entered into the cooperation agreement with ADA Henoch on June 18,
1999. Complaint at 4. Plaintiff's opposition, however, states the cooperation agreement was entered into
in “June of 1998”. Opposition at 2. In addition, plaintiff has recently sought—successfully—to amend the
complaint to allege that the agreement was made in June of 1998. Accordingly, this Court will assume that
plaintiff entered into the cooperation agreement with defendant in June, 1998.
2 Johnson does not specify whether he is claiming defendant Henoch owed a duty to protect him based on the
special relationship or state-created danger exception to the DeShaney rule. For the purpose of this motion,
both arguments will be addressed.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 6:26-cv-00156-AJB-ML Document 19 Filed 03/03/26 Page 75 of 129

Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Extend by Broadwater v. County of Onondaga, N.D.N.Y.,
March 11, 2024
2020 WL 1904088
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael JOYNER, Plaintiff,
v.
COUNTY OF CAYUGA; Cayuga County Sheriff's
Department; City of Auburn; Shawn I. Butler, Chief of
Auburn Police Department, as an Individual and in his
official capacity; Cayuga County District Attorney's
Office; Jon E. Budelmann, as an Individual and in
his capacity as District Attorney for Cayuga County;
and Anthony Spinelli, as an Individual and in his
capacity as an Auburn City Police Officer, Defendants.
5:20-CV-60 (MAD/TWD)
|
Signed 04/17/2020
Attorneys and Law Firms
OF COUNSEL: JARROD W. SMITH, ESQ., OFFICE OF
JARROD W. SMITH, 11 South Main Street, P.O. Box 173,
Jordan, New York 13080, Attorneys for Plaintiff.
OF COUNSEL: JEFFREY R. PARRY, ESQ., OFFICE OF
JEFFREY R. PARRY, 7030 East Genesee Street, Fayetteville,
New York 13066, Attorneys for Plaintiff.
OF COUNSEL: FRANK W. MILLER, ESQ., GIANCARLO
FACCIPONTE, ESQ., OFFICE OF FRANK W. MILLER,
6575 Kirkville Road, East Syracuse, New York 13057,
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge:
I. INTRODUCTION
*1 On or about February 18, 2020, Plaintiff filed a complaint
against Defendants City of Auburn, Shawn L. Butler, County
of Cayuga, Cayuga County District Attorney's Office, Jon
E. Budelmann, and Anthony Spinelli, asserting eight claims
pursuant to 42 U.S.C. §§ 1983 and 1988, and state law.
See Dkt. No. 5. Specifically, Plaintiff's complaint alleges the
following causes of action: (1) false arrest under the Fourth
and Fourteenth Amendments; (2) malicious prosecution
under the Fourth and Fourteenth Amendments; (3) negligent
failure to train or supervise; (4) state law false arrest; (5)
state law false imprisonment; (6) intentional and negligent
infliction of emotional distress under New York State law;
(7) negligence; and (8) deliberate indifference to medical care
under the Eighth Amendment. See Dkt. No. 5 at ¶¶ 40-114.
Currently before the Court is Defendants’ motion to dismiss
the complaint in its entirety. See Dkt. No. 9.
II. BACKGROUND
According to the complaint, on August 10, 2018, Plaintiff
was the passenger in a vehicle that was driven by 140 Wall
Street, allegedly in violation of an order of protection for
Linda Fitzsimmons and Lee Joyner, who both reside at that
address. See Dkt. No. 5 at ¶¶ 24-25. Plaintiff resides at 145
Wall Street, several houses down from 140 Wall Street, on the
opposite side of the street. See id. at ¶ 25. Plaintiff was not the
driver of the vehicle and had no control over how the driver
was delivering him to his home. See id.
On August 13, 2018, Plaintiff was arraigned on two felony
complaints charging him with two counts of Criminal
Contempt in the First Degree based on the alleged violation of
the order of protection. See id. at ¶ 22. At the conclusion of his
arraignment, Plaintiff was remanded to the Cayuga County
Jail. See id. Plaintiff claims that “Defendant police officer
lacked the requisite requirement of having probable cause to
arrest the Plaintiff; and did falsely arrest and imprison the
Plaintiff.” Id. at ¶ 23.
On October 4, 2018, Defendant Jon E. Budelmann, in his
capacity as Cayuga County District Attorney, presented
Plaintiff's charges to a grand jury, which “No Billed” the case.
See id. at ¶ 26. At this point, Plaintiff was released from
custody. See id.
During the fifty-three days during which Plaintiff “was being
illegally imprisoned,” he slipped and fell at the Cayuga
County Jail. See id. at ¶ 31. According to Plaintiff, on August
31, 2018, a water pipe burst at the Cayuga County Jail near
Plaintiff's cell while he was already locked in for the night
and sleeping. See id. at ¶ 32. Plaintiff was woken by a
bursting water pipe that was turned off by a Cayuga County
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Correctional officer. See id. at ¶ 33. “The first burst of the
water pipe [occurred] when the Cayuga County Correctional
officer shut the water off” between “12:00 midnight and 2:00
a.m.” Id. at ¶ 34. “Plaintiff was woken by a bursting water
pipe; and observed and heard that the correctional officer was
going to turn off the water and clean up the water spill. At that
time, there was no water in Plaintiff's cell.” Id.
*2 Unbeknownst to Plaintiff, water from the burst pipe went
underneath his locked cell door “and flooded his room while
he was in bed and asleep.” Id. at ¶ 35. “At around 6:30
am-7:00 am, Plaintiff got out of his bed to use the toilet in
his cell. Plaintiff slipped and fell on the wet floor of his cell.
The water on the floor was all near the toilet in his cell. There
was a huge puddle of water between Plaintiff's bunk and the
toilet in his cell.” Id. at ¶ 36. Plaintiff claims that he slipped
and fell, hitting his head and neck on his bunk, and his lower
back on the floor, causing severe injuries. See id. at ¶ 37. At
the time that Plaintiff had fallen and injured himself, a second
water leak had occurred in the pod in which he was being
held. See id. at ¶ 38. Plaintiff claims that, as a result of the fall,
he suffered a herniated disc in his neck and a lower lumbar
strain. See id. at ¶ 39. Plaintiff also claims that he suffers from
numbing of his toes and finger tips. See id.
III. DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief. See
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation
omitted). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw
all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). This presumption of truth, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider
documents that are “integral” to that pleading, even if they are
neither physically attached to, nor incorporated by reference
into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ.
P. 8(a)(2), with sufficient factual “heft to ‘sho[w] that the
pleader is entitled to relief[,]’ ” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, the pleading's “[f]actual allegations must be enough
to raise a right of relief above the speculative level,” see
id. at 555 (citation omitted), and present claims that are
“plausible on [their] face,” id. at 570. “The plausibility
standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted).
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.” ’ ” Id.
(quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly,
550 U.S. at 558, or where a plaintiff has “not nudged [its]
claims across the line from conceivable to plausible, the[ ]
complaint must be dismissed[,]” id. at 570.
B. Documents Considered in Deciding Motion to Dismiss
In their reply to the motion to dismiss, Defendants submitted
several documents in further support of their motion. See
Dkt. No. 16-1. These documents include (1) the August 10,
2018 criminal complaint charging Plaintiff with Criminal
Contempt in the First Degree, (2) the order of protection
that Plaintiff allegedly violated, (3) the affidavit of Linda
Fitzsimmons that formed the basis for Defendant's underlying
criminal charge, and (4) the incident narrative report of
Defendant Spinelli dated August 15, 2018 relating to the
criminal complaint filed against Plaintiff. See id. at 1-6.
*3 In deciding a motion to dismiss for failure to state a claim,
the court considers the complaint, materials incorporated
into the complaint by reference, materials integral to the
complaint, and facts that are capable of judicial notice. See
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010).
In the present matter, the Court finds that these documents
are not properly considered at the motion to dismiss stage.
The Court acknowledges that there are cases in which courts
have considered similar police records at the pleading stage.
See Betts v. Shearman, No. 12-cv-3195, 2013 WL 311124,
*3 (S.D.N.Y. Jan. 24, 2013) (considering incident report
and accusatory instrument that “provide[d] crucial details”
about the plaintiff's prosecution), aff'd on qualified immunity
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grounds, 751 F.3d 78 (2d Cir. 2014); cf. Obilo v. City
Univ. of City of N.Y., No. 01-cv-5118, 2003 WL 1809471,
*4 (E.D.N.Y. Apr. 7, 2003) (considering incident report
and police complaint that the plaintiff had conceded were
“implicitly” incorporated into his conspiracy allegations).
The better view, however, adopted by a majority of courts
in our Circuit, is that these kinds of police records are not
“integral” to a false arrest complaint. See Bejaoui v. City
of New York, No. 13-CV-5667, 2015 WL 1529633, *4–5
(E.D.N.Y. Mar. 31, 2015) (noting disagreement and declining
to consider extrinsic police reports); Alvarez v. Cty. of Orange,
95 F. Supp. 3d 385, 394-95 (S.D.N.Y. 2015) (collecting
cases). A document is not “integral” simply because its
contents are highly relevant to a plaintiff's allegations, but
only when it is clear that the plaintiff relied on the document
in preparing his complaint. See Global Network Commc'ns,
Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir.
2006); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002). Most typically, “the incorporated document is a
contract or other legal document containing obligations upon
which the plaintiff's complaint stands or falls, but which for
some reason ... was not attached to the complaint.” Global
Network Commc'ns, 458 F.3d at 157. “It must also be clear
that there exist no material disputed issues of fact regarding
the relevance of the document.” Faulkner v. Beer, 463 F.3d
130, 134 (2d Cir. 2006).
Here, there is “no indication in the record that plaintiff
relied on these documents in drafting the complaint.” Allyn
v. Rockland Cty., No. 12-cv-5022, 2013 WL 4038602, *4
(S.D.N.Y. July 30, 2013), affirmed, 646 Fed. Appx. 60 (2d Cir.
2016). To the contrary, Plaintiff relies on his own perceptions
and recollections, while only making passing reference to
the criminal complaint and order of protection. Furthermore,
it is not beyond dispute that the police report and narrative
are a truthful description of the police officer's basis to
arrest Plaintiff. To accept the truth of the documents offered
by Defendants at this stage would amount to a premature
determination that the arresting officers and the alleged victim
are more credible than Plaintiff. To make such a determination
at this stage would not be appropriate, and therefore the Court
will not consider the facts adduced in these documents. The
Court will, however, take judicial notice of the existence of
the criminal complaint, supporting affidavit, and order of
protection. See Williams v. City of New York, No. 14-cv-5123,
2015 WL 4461716, *1 (S.D.N.Y. July 21, 2015) (noting that
the court “may take judicial notice of the procedural history
of plaintiff's criminal case, but not of the truth of the arresting
officers’ version of events”); see also Ribaudo v. Desimone,
No. 3:18-cv-1190, 2019 WL 1906269, *4 (M.D. Pa. Apr. 5,
2019) (holding that “even if judicial notice is taken of these
documents, ‘a court may take notice of such documents only
to establish their existence and legal effect, or to determine
what statements they contained ... not for the truth of the
matters asserted’ ”) (quoting Fine v. ESPN, Inc., 11 F. Supp.
3d 209, 223 (N.D.N.Y. 2014)) (other citation omitted).
C. Monell and Supervisory Liability
*4 “Under the standards of Monell v. Department of Social
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978), a municipality can be held liable under [42 U.S.C. §
1983] if the deprivation of the plaintiff's rights under federal
law is caused by a governmental custom, policy, or usage of
the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80
(2d Cir. 2012). Liability under Section 1983 “is imposed on
the municipality [only] when it has promulgated a custom or
policy that violates federal law and, pursuant to that policy, a
municipal actor has tortiously injured the plaintiff.” Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). “Absent such a
custom, policy, or usage, a municipality cannot be held liable
on a respondeat superior basis for the tort of its employee.”
Jones, 691 F.3d at 80. Thus, for a municipality to be held
liable under Section 1983 for the unconstitutional actions of
its employees, “a plaintiff is required to plead and prove three
elements: (1) an official policy or custom that (2) causes the
plaintiff to be subjected to (3) a denial of a constitutional
right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007) (internal quotation marks omitted).
“Supervisory liability is a concept distinct from municipal
liability, and is ‘imposed against a supervisory official in his
individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates.’
” Kucera v. Tkac, No. 5:12-cv-264, 2013 WL 1414441, *4
(D. Vt. Apr. 8, 2013) (quoting Odom v. Matteo, 772 F. Supp.
2d 377, 403 (D. Conn. 2011)). Prior to the Supreme Court's
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Second
Circuit required a plaintiff to allege one of the following
categories for supervisory liability under § 1983:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
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custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of [persons]
by failing to act on information
indicating that unconstitutional acts
were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In order to succeed on his Monell and supervisory liability
claims, a plaintiff must first “identify obvious and severe
deficiencies” in the policies of the municipal and supervisory
defendants and “show a causal relationship” between
those deficiencies and his alleged deprivations. Reynolds
v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007). However,
to the extent that a plaintiff premises his claims on a
failure to train or supervise, such failure “may constitute
an official policy or custom [only] if the failure amounts
to ‘deliberate indifference’ to the rights of those with
whom the city employees interact.” Wray, 490 F.3d at 195.
Similarly, a supervisory defendant is liable only for the
creation or continuation of policy that leads to a pattern
of unconstitutional conduct or if he demonstrated deliberate
indifference in failing to act on information that a pattern of
unconstitutional conduct was occurring. See Colon, 58 F.3d
at 873.
“To establish deliberate indifference a plaintiff must show that
a policymaking official was aware of constitutional injury, or
the risk of constitutional injury, but failed to take appropriate
action to prevent or sanction violations of constitutional
rights.” Jones, 691 F.3d at 81.
A pattern of similar constitutional
violations by untrained employees is
“ordinarily necessary” to demonstrate
deliberate indifference for purposes of
failure to train [or supervise because]
[w]ithout notice that a course of
training is deficient in a particular
respect, decisionmakers can hardly
be said to have deliberately chosen
a training program that will cause
violations of constitutional rights.
*5 Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting
Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
409, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). “[W]hen
city policymakers are on actual or constructive notice that
a particular omission in their training program causes city
employees to violate citizens’ constitutional rights, the city
may be deemed deliberately indifferent if the policymakers
choose to retain that program.” Id. at 61 (citation omitted). 1
D. Cayuga County District Attorney's Office and
Auburn Police Department
Plaintiff names the Cayuga County District Attorney's Office
as a named Defendant in this case. The caselaw is clear,
however, that a district attorney's office is not an entity subject
to suit under 42 U.S.C. § 1983. See Michels v. Greenwood
Lake Police Dep't, 387 F. Supp. 2d 361, 367 (S.D.N.Y.
2005) (citing cases); Griffith v. Sadri, No. 07-CV-4824,
2009 WL 2524961, *8 (E.D.N.Y. Aug. 14, 2009). Similarly,
Plaintiff has listed the Auburn Police Department as an entity
responsible for several of the alleged constitutional violations.
See Dkt. No. 5 at ¶¶ 51-82. As with the District Attorney's
Office, the Auburn Police Department (which is not listed as
a Defendant in the caption of the complaint), the Court finds
that it must be dismissed because a police department is not
an independent, suable entity separate from the municipality
in which the police department is located. See Jenkins v.
City of New York, 478 F.3d 76, 93 (2d Cir. 2007) (citation
omitted); Krug v. City of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008) (citing cases); Koulkina v. City of New York,
559 F. Supp. 2d 300, 315 (S.D.N.Y. 2008) (citing cases).
Accordingly, the Court dismisses Plaintiff's claims against the
Cayuga County District Attorney's Office and the Auburn
Police Department.
E. False Arrest
In their motion to dismiss, Defendants contend that, based
on Plaintiff's own allegations, probable cause was present
to believe that he committed the offense for which he was
arrested. See Dkt. No. 9-1 at 14-16. Defendants claim that
Plaintiff “admits that he was charged with violating duly
issued orders of protection issued for Linda Fitzsimmons and
Lee Joyner, who reside at 140 Wall Street in the City of
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Auburn. See id. at 15 (citing Dkt. No. 5 at ¶ 24). Defendants
further claim that Plaintiff “admits he was ‘driven by’ 140
Wall Street on August 10, 2018.” Id. (citing Dkt. No. 5 at ¶
25). Defendants contend that the fact that Plaintiff claims that
he was not driving the vehicle “has no bearing on whether the
order of protection was reasonably deemed violated by police
authorities, and Plaintiff is careful not to deny that he was
in fact at 140 Wall Street on the date in question, which is a
per se violation of the order.” Id. In response, Plaintiff argues
that since he “was arrested for traveling on a public road in
route to his own home and in violation of no Order, law or
ordinance and, as it cannot be denied that he was ‘no billed’
by the Grand Jury, it would seem plausible to this writer that
any court would agree to the plausibility of Plaintiff's claims.”
Dkt. No. 10 at 16.
*6 In assessing Fourth Amendment claims of false arrest
brought under Section 1983, courts generally look to the law
of the state in which the arrest is alleged to have occurred. See
Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007)
(citation omitted). To prevail on a false arrest claim under
New York law, a plaintiff has to prove the following: “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was not
otherwise privileged.” Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (alteration and internal quotation
marks omitted) (quoting Broughton v. State, 37 N.Y.2d 451,
456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)); see also
Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012) (outlining the elements of false arrest claims). “The
existence of probable cause to arrest constitutes justification
and ‘is a complete defense to an action for false arrest.’ ”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); see
also Ackerson, 702 F.3d at 19-20 (citing Weyant, 101 F.3d at
852). “A police officer has probable cause for an arrest when
he has ‘knowledge or reasonably trustworthy information
of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person
to be arrested has committed or is committing a crime[.]’ ”
Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (quoting
Weyant, 101 F.3d at 852); Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013) (same). Such knowledge
or information can be based on information provided by an
eyewitness, unless the circumstances would raise a doubt as
to the eyewitness’ veracity. See Curley v. Vill. of Suffern, 268
F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63 F.3d at 119). The
question is whether the facts known to the arresting officer, at
the time of the arrest, objectively provided probable cause to
support the arrest. See Gonzalez, 728 F.3d at 155.
In the present matter, the Court finds that Defendants’ motion
to dismiss Plaintiff's false arrest claim must be denied as to
Defendant Spinelli. The complaint sufficiently alleges, albeit
barely, that Defendant Spinelli lacked probable cause to arrest
Plaintiff for the crime of Criminal in the First Degree. Indeed,
it is unclear from the complaint whether Plaintiff's conduct
was, in fact, in violation of the order of protection. 2
However, to the extent that Plaintiff attempts to assert a
false arrest claim against any other named Defendant, the
claim must be dismissed. Plaintiff's complaint is devoid
of any facts that would permit the Court to find that any
other Defendant was personally involved in the alleged false
arrest. Aside from conclusory allegations merely reciting
the underlying law, Plaintiff fails to include any facts that
plausibly allege the personal involvement of any municipal
or supervisory Defendant. For example, Plaintiff alleges that
“Defendant Butler, Defendant City and Defendant County
have created and tolerated an atmosphere of lawlessness, and
have developed and maintained long-standing, department-
wide customs, law enforcement related policies, procedures,
customs, practices, and/or failed to properly train and/or
supervise its officers in a manner amounting to deliberate
indifference to the constitutional rights of Plaintiff and of the
public.” Dkt. No. 78 at ¶ 78. While this allegation accurately
reflects what is required to hold municipal and supervisory
officials personally liable for the acts of other, the simple
recitation of the relevant law is insufficient to withstand a
motion to dismiss. Rather, Plaintiff was required to allege
facts, specific to his case, demonstrating how these municipal
and supervisory Defendants were personally involved in the
alleged unconstitutional conduct, which he has failed to do.
Simply put, the legal conclusions in Plaintiff's complaint,
devoid of any supporting facts, fail to plausibly allege
supervisory or municipal liability as to this claim.
*7 Accordingly, the Court denies Defendants’ motion to
dismiss Plaintiff's false arrest claim as to Defendant Spinelli.
F. Malicious Prosecution
In their motion to dismiss, Defendants argue that Plaintiff's
malicious prosecution must be dismissed because the
complaint fails to set forth facts plausibly alleging that the
prosecution was initiated without probable cause or that any
named Defendant acted with the requisite malice. See Dkt.
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No. 9-1 at 16-17. In response, Plaintiff states as follows: “As
the plaintiff was arrested for traveling on a public road in
route to his own home and in violation of no Order, law
or ordinance, as it cannot be denied that he was ‘no billed’
by the Grand Jury and as he spent 53 days in jail for no
reason whatsoever, it would seem plausible to this writer
that any court would agree to the plausibility of Plaintiff's
claims.” Dkt. No. 10 at 17 (citing Swierkiezicz v. Sorema, 534
U.S. 506 (2002)). Plaintiff brings his malicious prosecution
claim against the City of Auburn, Auburn Police Department,
Cayuga County, and Defendant Butler. See Dkt. No. 5 at ¶¶
51-82. While Plaintiff may be confident in the viability of his
claim, this Court finds that Plaintiff has failed to plausibly
allege facts supporting a claim for malicious prosecution. 3
To prevail on a Section 1983 claim for malicious prosecution,
“a plaintiff must show a violation of his rights under the
Fourth Amendment ... and must establish the elements of a
malicious prosecution claim under state law.” Manganiello v.
City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (citations
omitted). Under New York law, a plaintiff must plausibly
allege four elements to support a malicious prosecution
claim: “ ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’ ” Id. (quotation and other citations
omitted); see also Dufort v. City of New York, 874 F.3d
338, 350 (2d Cir. 2017) (quotation omitted). Initiating a
criminal proceeding against a person without probable cause,
coupled with a deprivation of liberty, is a Fourth Amendment
violation. See Murphy v. Lynn, 118 F.3d 938, 944-45 (2d Cir.
1997) (citation omitted).
*8 The Second Circuit has held that although “police
officers do not generally “commence or continue” criminal
proceedings against defendants, a claim for malicious
prosecution can still be maintained against a police officer if
the officer is found to ‘play[ ] an active role in the prosecution,
such as giving advice and encouragement or importuning the
authorities to act.’ ” Bermudez v. City of New York, 790 F.3d
368, 377 (2d Cir. 2015) (quotations omitted). “This element
might be satisfied by, for example, showing that an officer
generated witness statements or was regularly in touch with
the prosecutor regarding the case.” Id. (citation omitted).
Recently, the New York Court of Appeals acknowledged that
it has “ ‘never elaborated on how a plaintiff in a malicious
prosecution case demonstrates that the defendant commenced
or continued the underlying criminal proceeding.’ ” Torres
v. Jones, 26 N.Y.3d 742, 760-61 (2016) (quotation omitted).
“But, by suggesting that a defendant other than a public
prosecutor may be liable for supplying false information to
the prosecutor in substantial furtherance of a criminal action
against the plaintiff, we have implicitly recognized that such
conduct may, depending on the circumstances, constitute the
commencement or continuation of the prosecution.” Id. at 761
(citations omitted); see also Colon v. City of New York, 60
N.Y.2d 78, 82 (1983) (noting that proof establishing “that the
police witnesses” have falsified evidence may create liability
for malicious prosecution); Hopkinson v. Lehigh Val. R.R. Co.,
249 N.Y. 296, 300-01 (1928) (noting that the falsification of
evidence and presentation of that evidence to the prosecutor
can constitute commencement of a prosecution).
1. Initiation of Criminal Prosecution
In the present matter, the Court finds that Plaintiff's malicious
prosecution claim must be dismissed. Initially, the Court
finds that Plaintiff has failed to adequately allege that any
named Defendant initiated that the prosecution against him.
While Defendant Spinelli filed the criminal complaint against
him, nothing in the complaint suggests his participation
in Plaintiff's prosecution beyond that. Nearly all cases in
which law enforcement officers were found to have initiated
or continued a prosecution for purposes of a malicious
prosecution claim involve officers who provided knowingly
false and/or fabricated evidence to unwitting prosecutors.
See, e.g., Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997); Ramos v. City of New York, 285 A.D.2d
284, 299 (1st Dep't 2001). There is a rebuttable presumption
that criminal proceedings are initiated by prosecutors, not
arresting officers. See Mitchell v. Victoria Home, 434 F. Supp.
2d 219, 228 (S.D.N.Y. 2006) (citation omitted). “[I]n the
absence of evidence that the police officer misled or pressured
the official who could be expected to exercise independent
judgment,” a claim of malicious prosecution against the
officer must fail. See Townes v. City of New York, 176 F.3d
138, 147 (2d Cir. 1999) (citations omitted).
Plaintiff's complaint is devoid of any allegations that
Defendant Spinelli engaged in any of the conduct identified
above that would permit the Court to find that Plaintiff
plausibly alleged that any party other than the District
Attorney initiated the prosecution against him. As such, the
Court finds that Plaintiff's malicious prosecution claim is
subject to dismissal.
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2. Malice
Plaintiff's complaint is also devoid of any facts supporting
an inference that the prosecution was instituted with malice.
As Defendants correctly note, Plaintiff misconstrues the
standard on a motion to dismiss. While Plaintiff is not
required to “prove” that Defendants acted in a malicious
manner to sustain his claim, he is certainly required to plead
enough facts that would make such a conclusion plausible.
Plaintiff's complaint fails to plead any facts that would
support the inference that any named Defendant (or their
employees) acted with the requisite malice to support a
malicious prosecution claim. Rather, the complaint simply
alleges that he was subjected to normal processes of law. The
number of days that Plaintiff spent in jail is irrelevant to this
consideration, as is the fact that he was “no billed” by the
Grand Jury. Plaintiff does not allege that he had previous
interactions with any of the named Defendants, or that his
interactions with them during his arrest and subsequent
prosecution would indicate a malicious intent. Finally, as
to the supervisory and municipal Defendants, Plaintiff has
failed to put forth any facts in support of this claim. Rather,
the complaint contains nothing but legal conclusions without
providing any basis for the Court to conclude that Plaintiff has
plausibly alleged a malicious prosecution claim against these
Defendants.
*9 Accordingly, the Court finds that Plaintiff's malicious
prosecution claim is subject to dismissal on this alternative
ground.
3. Prosecutorial Immunity
Prosecutors sued under 42 U.S.C. § 1983 enjoy absolute
immunity “ ‘from claims for damages arising out of
prosecutorial duties that are “intimately associated with
the judicial phase of the criminal process.” ’ ” Okongwu
v. County of Erie, No. 14CV832, 2017 WL 2686454, *3
(W.D.N.Y. June 22, 2017) (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976))). The prosecutor enjoys this absolute
immunity because he or she is acting in a quasi-judicial
capacity. See Okongwu v. County of Erie, No. 14CV832,
2018 WL 1383233, *3 (W.D.N.Y. Mar. 19, 2018). The
function performed by the prosecutor defines the scope of
this immunity. See Imbler, 424 U.S. at 430; Warney, 587 F.3d
at 121. Acts of advocacy before a court, or preparation to
advocate, are absolutely immune, Imbler, 424 U.S. at 430-31;
see also Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993),
while administrative duties or investigatory functions are not
so immune, Imbler, 424 U.S. at 431 n.33; Buckley, 509 U.S. at
273; Warney, 587 F.3d at 121. “This protection encompasses
‘all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation.’ ” Peters, 848 F. Supp. 2d at 385 (quoting Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986)). As noted
by the Second Circuit, “thus, to establish [absolute] immunity,
the ‘ultimate question’ is ‘whether the prosecutors have
carried their burden of establishing that they were functioning
as “advocates” when they engaged in the challenged conduct.’
” Warney, 587 F.3d at 121 (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996)).
Absolute immunity extends from the initiation of a
prosecution and presenting a case at trial, Boria v. Hicks, No.
5:17-CV-00486, 2017 WL 2983304, *4 (N.D.N.Y. June 14,
2017), through the decision to end it, see Okongwu, 2017
WL 2686454, at *4, as well as post-conviction defense of
proceedings and the decision whether to vacate a conviction,
Warney, 587 F.3d at 123; Peters, 848 F. Supp. 2d at 387.
Absolute immunity applies in the preparation for the initiation
of judicial proceedings, but not to the investigative or
administrative duties of a prosecutor. See Warney, 587 F.3d at
122. In Peters, the court listed activities that are investigative
or administrative that do not deserve absolute immunity,
such as orchestrating a sting operation, authorizing wiretaps,
coercing confidential informant to consent to a wire, releasing
information to the media, assisting in the execution of a
warrant, or supervising and interacting with law enforcement
agents to acquire evidence. See Peters, 848 F. Supp. 2d at 386
(citing cases).
In the present matter, the Court finds that Defendant
Budelmann, as Cayuga County District Attorney is entitled
to absolute prosecutorial immunity. In the complaint, Plaintiff
alleges that “[o]n October 4, 2018, Defendant district attorney
presented Plaintiff's criminal charges to the Grand Jury of
Cayuga County where the grand jury ‘No Billed’ the case;
and Plaintiff was released from his illegal confinement at
the Cayuga County Jail.” Dkt. No. 5 at ¶¶ 26, 91. Further,
Plaintiff claims that “Defendant district attorney knew at the
time of Plaintiff's case being presented to the Grand Jury of
Cayuga County that he would not prevail due to the lack of
probable cause.” Id. at ¶ 29. These allegations make clear
that Defendant Budelmann has been sued relating to his role
in presenting the case to the grand jury; conduct for which
he is entitled to absolute prosecutorial immunity. See Hill
v. City of New York, 45 F.3d 653, 661-62 (2d Cir. 1995)
(holding that “that prosecutors are immune from § 1983
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liability for their conduct before a grand jury”) (citations
omitted); Bernard v. County of Suffolk, 356 F.3d 495, 505 (2d
Cir. 2004) (citations omitted). Accordingly, Plaintiff's claim
of malicious prosecution against Defendant Budelmann is
subject to dismissal on this alternative ground.
*10 Finally, to the extent that Plaintiff seeks to impute
the conduct of Defendant Budelmann to Cayuga County, the
claim must necessarily be dismissed. The Second Circuit
Court of Appeals has unequivocally held that “prosecutorial
acts may not fairly be said to represent official policy of
the County,” because “[w]hen prosecuting a criminal matter,
a district attorney in New York State, acting in a quasi-
judicial capacity, represents the State not the county.” Baez
v. Hennessy, 853 F.2d 73 (2d Cir. 1988) (internal quotation
omitted); see also Doe v. Smith, 704 F. Supp. 1177, 1184
(S.D.N.Y. 1988). Since Defendant Budelmann was acting on
behalf of the State of New York, and not Cayuga County, any
alleged misconduct on Defendant Budelmann's part cannot be
imputed to Cayuga County.
G. Negligent/Intentional Infliction of Emotional Distress
In his sixth cause of action, Plaintiff alleges claims of
negligent and intentional infliction of emotional distress
against Defendants Butler, Spinelli, and Budelmann. See Dkt.
No. 5 at ¶¶ 96-98. Defendants contend these claims fail as a
matter of law. See Dkt. No. 9-1 at 19-20.
As to the claim of negligent infliction of emotional distress,
it is well settled that a “ ‘plaintiff seeking damages for an
injury resulting from a wrongful arrest and detention may
not recover under broad general principles of negligence ...
but must proceed by way of the traditional remedies of false
arrest and imprisonment.’ ” Greenaway v. Cty. of Nassau,
97 F. Supp. 3d 225, 239 (E.D.N.Y. 2015) (quoting Secard
v. Dep't of Soc. Servs. of Cnty. of Nassau, 204 A.D.2d 445,
612 N.Y.S. 2d 167, 168 (2d Dep't 1994)). This is precisely
what Plaintiff is attempting to do here. Tacking on a claim
for negligent infliction of emotional distress without any
other facts or assertions is insufficient under the relevant law.
Moreover, even if this claim could be considered independent
of Plaintiff's false arrest claim, it is still subject to dismissal
because Plaintiff has not alleged any facts demonstrating that
Defendants breached a duty owed to Plaintiff. As such, the
Court grants Defendants’ motion to dismiss as to Plaintiff's
claim of negligent infliction of emotional distress.
As to the intentional infliction of emotional distress claim,
it too must be dismissed. “Intentional infliction of emotional
distress has four elements: ‘(i) extreme and outrageous
conduct; (ii) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (iii) a causal
connection between the conduct and injury; and (iv) severe
emotional distress.’ ” Greenaway, 97 F. Supp. 3d at 239-40
(quoting Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 596
N.Y.S. 2d 350, 612 N.E. 2d 699, 702 (1993)). “The ‘extreme
and outrageous conduct’ must ‘go beyond all possible bounds
of decency’ and be ‘atrocious, and utterly intolerable in
a civilized community.’ ” Id. (quotation and other citation
omitted).
Here, Plaintiff claims that Defendants Budelmann, Spinelli,
and Butler engaged in “extreme and outrageous conduct,
which intentionally and/or negligently caused severe
emotional distress to Plaintiff.” Dkt. No. 5 at ¶ 97. Notably
absent from the complaint is any explanation what this
“extreme and outrageous conduct” was. “ ‘Liability has been
found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.’ ” Murphy v.
American Home Products Corp., 58 N.Y.2d 293, 302 (1983)
(quotation omitted). The threadbare facts alleged by Plaintiff,
which include the fact that he was arrested and eventually
released after the grand jury refused to indict, fall far short of
this strict standard.
*11 Accordingly, the Court grants Defendants’ motion
to dismiss Plaintiff's claims for negligent and intentional
infliction of emotional distress.
H. Negligence
In his seventh cause of action, Plaintiff asserts a claim for
negligence. See Dkt. No. 5 at ¶¶ 100-04. In this claim, Plaintiff
argues that his arrest, Defendants’ failure to “follow the
criminal law of the State of New York,” and Plaintiff's fifty-
three days of incarceration, were the product of Defendants’
negligence. See id.
“To prevail on a claim for negligence under New York law,
a plaintiff must establish ‘(1) the existence of a duty on
the defendant's part as to the plaintiff; (2) a breach of that
duty; and (3) resultant injury to the plaintiff.’ ” Frederique v.
County of Nassau, 168 F. Supp. 3d 455, 485 (E.D.N.Y. 2016)
(quotation omitted). “However, ‘[u]nder New York law, harm
predicated on an intentional act may not give rise to a claim
of negligence.’ ” Id. (quotation and other citation omitted).
Moreover, it is well settled that, “[u]nder New York law, a
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plaintiff may not recover under general negligence principles
for a claim that law enforcement officers failed to exercise the
appropriate degree of care in effecting an arrest or initiating
a prosecution.” Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994) (citing Boose v. City of Rochester, 71 A.D.2d
59, 421 N.Y.S.2d 740, 743 (4th Dept. 1979)) (other citation
omitted).
In the present matter, the Court finds that Plaintiff's
negligence claim must be dismissed as it is simply redundant
of Plaintiff's claims of false arrest, false imprisonment,
and malicious prosecution. Accordingly, the Court grants
Defendants’ motion to dismiss as to this claim.
I. Deliberate Indifference to Serious Medical Needs
In his eighth cause of action, Plaintiff claims that “Defendant
Medical Staff and Defendant Cayuga County Sheriff's
Department” were deliberately indifferent to his medical care
and treatment after he was injured when a water pipe broke
outside his cell on August 31, 2018. See Dkt. No. 5 at ¶¶
105-14.
A pretrial detainee's claims of unconstitutional conditions of
confinement are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eight Amendment. See Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted).
A pretrial detainee's claims are evaluated under the Due
Process Clause because, “ ‘[p]retrial detainees have not been
convicted of a crime and thus ‘may not be punished in any
manner — neither cruelly and unusually nor otherwise.’ ” Id.
(quotations omitted).
“A pretrial detainee may establish a § 1983 claim for
allegedly unconstitutional conditions of confinement by
showing that the officers acted with deliberate indifference to
the challenged conditions.” Darnell, 849 F.3d at 29 (citation
omitted). “This means that a pretrial detainee must satisfy
two prongs to prove a claim, an ‘objective prong’ showing
that the challenged conditions were sufficiently serious to
constitute objective deprivations of the right to due process,
and a ‘subjective prong’ — perhaps better classified as a
‘mens rea prong’ or ‘mental element prong’ — showing
that the officer acted with at least deliberate indifference to
the challenged conditions.” Id. “The reason that the term
‘subjective prong’ might be a misleading description is that,
as discussed below, the Supreme Court has instructed that
‘deliberate indifference’ roughly means ‘recklessness,’ but
‘recklessness’ can be defined subjectively (what a person
actually knew, and disregarded), or objectively (what a
reasonable person knew, or should have known).” Id. (citing
Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994)).
*12 Under both the Eighth and Fourteenth Amendments,
to establish an objective deprivation, “the inmate must show
that the conditions, either alone or in combination, pose
an unreasonable risk of serious damage to his health,”
which includes the risk of serious damage to “physical and
mental soundness.” Id. at 30 (citations omitted). “There is no
‘static test’ to determine whether a deprivation is sufficiently
serious; instead, ‘the conditions themselves must be evaluated
in light of contemporary standards of decency.’ ” Id. (quoting
Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995) (citing
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392,
69 L. Ed. 2d 59 (1981))). For example, the Second Circuit
has “ ‘held that prisoners may not be deprived of their basic
human needs — e.g., food, clothing, shelter, medical care,
and reasonable safety — and they may not be exposed to
conditions that pose an unreasonable risk of serious damage
to [their] future health.’ ” Id. (quoting Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012)).
“ ‘[C]onditions of confinement may be aggregated to rise to
the level of a constitutional violation, but only when they
have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth,
or exercise.’ ” Darnell, 849 F.3d at 30 (quotations omitted).
“Unsanitary conditions, especially when coupled with other
mutually enforcing conditions, such as poor ventilation and
lack of hygienic items (in particular, toilet paper), can rise to
the level of an objective deprivation.” Id. (citations omitted).
The second element of a conditions of confinement claim
brought under the Due Process Clause of the Fourteenth
Amendment is the defendant's “deliberate indifference”
to any objectively serious condition of confinement. See
Darnell, 849 F.3d at 32. Courts have traditionally referred
to this second element as the “subjective prong.” “But
‘deliberate indifference,’ which is roughly synonymous with
‘recklessness,’ can be defined either ‘subjectively’ in a
criminal sense, or ‘objectively’ in a civil sense.” Id. As such,
the “subjective prong” might better be described as the “mens
rea prong” or “mental element prong.” Id.
Under the second prong of the deliberate indifference
analysis, the Court must consider whether the defendants
“acted intentionally to impose the alleged condition, or
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recklessly failed to act with reasonable care to mitigate the
risk that the condition posed to the pretrial detainee even
though [they] knew, or should have known, that the condition
posed an excessive risk to health or safety.” Darnell, 849 F.3d
at 35. Under this standard, the plaintiff “must prove that [the
defendants] acted intentionally or recklessly, and not merely
negligently.’ ” Id. at 36.
In the present matter, the Court finds that Plaintiff has failed
to plausibly allege a claim of deliberate indifference under
the Fourteenth Amendment. Initially, the Court notes that the
“medical staff” at the Cayuga County Jail were not named
as defendants in this action. Rule 10(a) requires a plaintiff
to “name all the parties” in the Complaint. See Fed. R. Civ.
P. 10(a). Although the naming of pseudonymous defendants
is permissible where a plaintiff requires discovery to learn
the true identities of the defendants, the plaintiff subsequently
must amend the complaint to reflect the discovered identities
and effect service on the named parties within the 120-day
time period set forth in Rule 4(m). See Petty v. Cty. of
Franklin, 478 F.3d 341, 345–46 (6th Cir. 2007).
Here, Plaintiff has not brought suit against any pseudonymous
defendants, and only makes reference to these unidentified
individuals in the body of the complaint. If Plaintiff had
intended to sue then-unknown members of the medical staff
at the jail, he should have brought suit against “John and/
or Jane Doe” defendants, who could be identified through
discovery. Upon obtaining their identities, Plaintiff would
then be required to amend his complaint to reflect the Doe
defendants’ identities. See Simmons v. District of Columbia,
750 F. Supp. 2d 43, 45 (D.D.C. 2011) (holding that a
plaintiff “may bring an action against unknown John Doe
defendants, but plaintiff must substitute named defendants
for those unknown defendants after the completion of
discovery”) (citations omitted); see also Estate of Rosenberg
by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)
(holding that “[a]n action may proceed against a party whose
name is unknown if the complaint makes allegations specific
enough to permit the identity of the party to be ascertained
after reasonable discovery”). Here, Plaintiff has not brought
suit against unknown members of the medical staff at the
Cayuga County Jail or providing any facts that would permit
Defendants to assist in obtaining their identities. As such, the
only potential deliberate indifference claim asserted in the
complaint is a municipal liability claim against Defendant
Cayuga County.
*13 In his complaint, Plaintiff has alleged that a water pipe
burst outside his cell during the night, the water was turned
off, and at some point during the night it pooled near his cell's
toilet. See Dkt. No. 5 at ¶¶ 109-13. At sometime between 6:30
a.m. and 7:00 a.m., Plaintiff claims that he got out of bed to
use the toilet in his cell and slipped and fell on the wet floor.
See id. at ¶ 110. Plaintiff alleges that, when he fell, he hit his
head and neck on his bunk and his lower back on the floor,
causing severe injuries, including a herniated disc in his neck
and lower lumbar strain. See id. at ¶¶ 111-13. Plaintiff claims
that, “[a]fter the injury up and until Plaintiff was released
on October 4, 2018[,] Plaintiff was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Id. at ¶ 114.
Initially, the Court notes that nothing in the complaint
indicates that Plaintiff's alleged injury was caused by a
municipal custom, policy, or usage, as is required to find a
plausible claim against Defendant Cayuga County. Rather,
Plaintiff claims that a water pipe leaked outside his cell during
the night and that a “correctional officer ... turn[ed] off the
water and clean[ed] up the water spill. At that time, there was
no water in Plaintiff's cell.” Dkt. No. 5 at ¶ 108. When the
second pipe leaked, some water entered Plaintiff's cell, which
caused Plaintiff to fall. See id. at ¶ 109. This isolated incident,
involving a bursting water pipe, is woefully insufficient
to plausibly allege municipal liability for Plaintiff's alleged
injury. See Connick, 131 S. Ct. at 1360; see also Plair v. City
of New York, 789 F. Supp. 2d 459, 470 (S.D.N.Y. 2011) (“[I]t
is well established that a single incident does not give rise
to an unlawful practice by subordinate officials so permanent
and well-settled as to constitute custom or usage”) (internal
quotation marks omitted); Giaccio v. City of New York, 308
Fed. Appx. 470, 472 (2d Cir. 2009) (finding that allegations
of, at most, four prior incidents of misconduct “falls far short
of establishing a practice that is ‘so persistent or widespread’
as to justify the imposition of municipal liability”) (internal
quotation marks omitted).
Even assuming that Plaintiff had asserted this claim against
an individually named Defendant, the claim would still
be dismissed. To satisfy the second prong of a deliberate
indifference claim, Plaintiff must plausibly allege facts
suggesting that a defendant “acted intentionally to impose the
alleged condition, or recklessly failed to act with reasonable
care to mitigate the risk that the condition posed to the pretrial
detainee even though [they] knew, or should have known,
that the condition posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35. At best, the facts set forth in the
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complaint describe negligence on the part of the correctional
staff, which is insufficient to support a claim of deliberate
indifference. See id. at 36.
Finally, to the extent that Plaintiff is basing his claim on the
alleged deprivation of medical care after his accident, Plaintiff
has failed to provide any factual basis in support of his
conclusory assertion that he “was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Dkt. No. 5 at ¶ 114. The
complaint fails to allege that he brought his alleged injuries to
the attention of the correctional or medical staff at the Cayuga
County jail (or even identify any such individual).
Based on the foregoing, the Court grants Defendants’ motion
to dismiss as to Plaintiff's deliberate indifference claim.
IV. CONCLUSION
After carefully the entire record in this matter, parties’
submissions and the applicable law, and for the reasons stated
herein, the Court hereby
*14 ORDERS that Defendants’ motion to dismiss (Dkt. No.
9) is GRANTED in part and DENIED in part; 4 and the
Court further
ORDERS that Defendants City of Auburn, Butler, Cayuga
County, Cayuga County District Attorney's Office, and
Budelmann are TERMINATED as Defendants in this action;
and the Court further
ORDERS that Defendants’ letter motion a portion of the
argument raised in their motion to dismiss (Dkt. No. 15) is
DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1904088
Footnotes
1 As discussed in more detail below, Plaintiff's complaint fails to set forth any facts sufficient to find either
supervisory or municipal liability against any of the named Defendants for any of the listed causes of action.
2 Although the Court is permitting this claim against Defendant Spinelli to survive, the Court has serious
doubts about whether the claim would survive a properly supported motion for summary judgment. If the
Court were to consider the contents of the criminal complaint, supporting affidavit, and Defendant Spinelli's
narrative, the claim would undoubtedly be dismissed. This, however, highlights why the Court believes that
it is inappropriate to rely on the contents of these documents at this stage. Without the benefit of discovery,
Plaintiff has been unable to question the veracity of the statements contained in those documents. That
being said, the criminal complaint and affidavits paint a much less sympathetic picture than the one set out
in Plaintiff's complaint.
3 Throughout his response, Plaintiff repeatedly states that “the Court is respectfully reminded that it may dismiss
a complaint only if it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations.” See, e.g., Dkt. No. 10 at 17, 18 (citing Hishon v. King & Spalding, 467 U.S. 69,
73). Further, Plaintiff repeatedly contends that he “has no duty at this stage to prove his case.” Id. These basic
tenets are not in dispute. What Plaintiff fails to appreciate, however, is that a complaint must be supported
by facts specific to his case, not merely broad assertions of the relevant law poorly disguised as facts. For
example, Plaintiff alleges that Defendants engaged in “extreme and outrageous conduct,” but fails to explain
how any of the conduct alleged could possibly be considered extreme and outrageous. Further, Plaintiff
seems to be operating under the assumption that the Court is required to use its imagination to come up
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with a hypothetical set of facts that could have been pled that would render the claims plausible. Iqbal and
Twombly, however, place no such burden on the Court. Rather, it is incumbent on the plaintiff to set forth the
necessary facts specific to his or her case to render the asserted claims plausible.
4 As a result of this Memorandum-Decision and Order, the only remaining claim is Plaintiff's false arrest claim
against Defendant Spinelli.
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King v. New York State, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 5625440
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Cecil Roy KING, Plaintiff,
v.
NEW YORK STATE, James Francis Mathews [sic],
William B. Rebolini, Howard Heckman, Defendants.
23-CV-3421(GRB)(ST)
|
Signed August 31, 2023
Attorneys and Law Firms
Cecil Roy King, Coram, NY, Pro Se.
Lori L. Pack, Office of the New York State Attorney General,
Hauppauge, NY, for Defendants New York State, James
Francis Mathews, William B. Rebolini.
ORDER
GARY R. BROWN, United States District Judge:
*1 Before the Court is the fee paid pro se complaint of Cecil
Roy King (“Plaintiff”) brought pursuant to 42 U.S.C. § 1983
against New York State (“NYS”) and three NYS judges: Hon.
James Francis Matthews (“Judge Matthews”), Hon. William
B. Rebolini (“Judge Rebolini”), and Hon. Howard Heckman
(“Judge Heckman” and collectively, “Defendants”). See
Docket Entry “DE” 1; Receipt No. 200001582. Upon initial
review of Plaintiff's complaint and Defendants’ letter motion
requesting a pre-motion conference in anticipation of filing
amotion to dismiss the complaint (DE 5), the Court ordered
Plaintiff to show cause within thirty days why the claims set
forth in the complaint should not be dismissed for lack of
subject matter jurisdiction. (DE 7.) Plaintiff has responded
by filing a “Response to Order to Show Cause & Temporary
Restraining Order.” 1 (DE 8.)
For the reasons that follow, the Court lacks subject matter
jurisdiction to adjudicate Plaintiff's claims. Accordingly, the
complaint is dismissed without prejudice pursuant to Federal
Rule of civil Procedure 12(h)(3). Given the dismissal of the
complaint, the request for a restraining order is denied.
BACKGROUND
1. Summary of the Complaint
Plaintiff's complaint is brought against NYS and three state
judges arising from an underlying state mortgage foreclosure
action and subsequent eviction proceedings. See DE 1. The
brief complaint is submitted on the Court's form for civil
rights actions brought pursuant to Section 1983 and has
an additional 169 pages of attachments. 2 Id. According to
the complaint, Defendants violated Plaintiff's civil rights by
depriving Plaintiff of property rights without due process of
law. Id. at ¶ II.B. In its entirety, Plaintiff's Statement of Claim
alleges:
Mortgage was illegally assigned to
PHH Mortgage. Original mortgage
was Fleet Bank in 2003. Assigned
to PHH on 12/16/10. Referee's deed
executed 2/14/20. Referee's deed
executed 2/14/20 and sold in a no
due process foreclosure sale. James
Mathew denied plaintiff's motion to
have fair trial 11/2/22. Judge Heckman
signed illegal foreclosure with equal
protection of law. Promissory note was
illegally assigned to PHH Mortgage
on 12/16/10. Referee's deed was
executed without due process denying
the plaintiff equal protection of law
and depriving plaintiff of life, liberty
and property without due process
or no recourse. Plaintiff's property
was sold to Federal National Corp
– not sure when they became the
owner – defendant took Plaintiff to
District Court on 9/28/22 as the owner/
petitioner of the home. PHH Mortgage
and Federal National Mortgage does
not have standing. There is a title
dispute as to who owns the property.
Id. at ¶ III. In the space on the form complaint that calls for
a description of any injuries sustained as a result, Plaintiff
wrote:
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*2 The Plaintiff did not get a
fair and impartial procedure/trial/
hearing in Supreme Court or District
Court. The defendants conspired and
acted with deliberate indifference
to the Constitution and federal
laws when making decisions without
investigating the facts. The defendants
were provided notice that there is a title
dispute. Plaintiff suffered wrongful
eviction, slander, libel and intentional
infliction of emotional distress.
Id. at ¶ IV. For relief
plaintiff requests 20 million dollar
payment on this claim to be divided
among the defendants. The plaintiff
requests the state and district court
judges licenses to practice law
revoked. The judges assets to be
liquidated to pay the judgement in
full. The plaintiff demands complete
control of the state's corporate charter
and to have all records of illegal
assignments, deed and all records to
the plaintiff.
Id. ¶ V.
2. Plaintiff's Response to the Order to Show Cause
By Order to Show Cause dated June 16, 2023, the Court
ordered Plaintiff to show cause why the claims in the
complaint should not be dismissed without prejudice for lack
of subject matter jurisdiction. DE 7. The Court explained that
Eleventh Amendment immunity, absolute judicial immunity,
and the Rooker-Feldman doctrine appeared to divest the
Court of subject matter jurisdiction and set forth the legal
and factual bases for that circumstance. Id. at 5-9. The Court
invited Plaintiff to demonstrate why these doctrines do not bar
adjudication of Plaintiff's claims in this Court and suggested
that Plaintiff consult with the Hofstra Law Pro Se Clinic. Id.
at 9.
Plaintiff's twenty-two page response does not address any
of the issues raised by the Court and, instead, re-alleges the
claims set forth in the complaint and argues the merits thereof.
See DE 8, in toto. The only mention of “immunity” is at
page 14 of Plaintiff's submission where in a single paragraph
asserts that:
The judge has qualified immunity when he/she follows
the constitution and the law. The Tucker Act exposes the
government to liability for certain claims. Specifically,
the Act extended the court's jurisdiction to include claims
for liquidated or unliquidated damages arising from the
Constitution (including takings claims under the Fifth
Amendment), a federal statute or regulation, and claims in
cases not arising in tort. The relevant text of the Act is
codified in 28 U.S.C. §§ 1346(a) and 1491. The Tucker Act
(March 3, 1887, Ch. 359, 24 Stat. 505, 28 U.S.C. § 1491)
is a federal statute of the United States by which the United
States government has waived its sovereign immunity with
respect to lawsuits pertaining to 5th Amendment violations
of due process.
Id. at 14.
LEGAL STANDARDS
Regardless of whether a plaintiff has paid the Court's filing
fee, a district court may sua sponte, that is, on its own, dismiss
a frivolous pro se complaint. Fitzgerald v. First E. Seventh
St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (per
curiam) (“[D]istrict courts may dismiss a frivolous complaint
sua sponte even when the plaintiff has paid the required filing
fee” because “as courts of first instance, district courts are
especially likely to be exposed to frivolous actions, and thus
have an even greater need for inherent authority to dismiss
such actions quickly in order to preserve scarce judicial
resources.”); Clark v. Schroeder, 847 F. App'x 92, 93 (2d Cir.
2021) (summary order) (“District courts have the inherent
power to dismiss a complaint as frivolous, even when, as
here, the plaintiff has paid the filing fee.”); Hawkins-El III v.
AIG Fed. Sav. Bank, 334 F. App'x 394, 395 (2d Cir. 2009)
(affirming the district court's sua sponte dismissal of fee paid
frivolous complaint).
*3 A claim 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.
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Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
In addition, a complaint is frivolous where it seeks relief from
defendants who are immune from suit. Montero v. Travis, 171
F.3d 757, 760 (2d Cir. 1999) (“A complaint will be dismissed
as frivolous when it is clear that the defendants are immune
from suit.”) (internal quotation marks omitted).
Pro se complaints are to be examined with “special
solicitude,” Tracy v. Freshwater, 620 F.3d 90, 102 (2d Cir.
2010), and are to be “interpreted to raise the strongest
arguments they suggest.” Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994). However, “threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice,” and district courts “cannot invent
factual allegations” that the plaintiff has not pleaded. Chavis
v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). 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 quotations and
citation omitted). “[A] plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative level....”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotations, brackets, and citation omitted).
Notwithstanding the liberal pleading standard afforded pro
se litigants, federal courts are courts of limited jurisdiction
and may not preside over cases if subject matter jurisdiction
is lacking. Lyndonville Sav. Bank & Trust Co. v. Lussier,
211 F.3d 697, 70-01 (2d Cir. 2000). Lack of subject matter
jurisdiction cannot be waived and may be raised at any time
or by the court sua sponte. Id.; see also FED. R. CIV. P. 12(h)
(3)(“Whenever it appears ... that the court lacks jurisdiction
of the subject matter, the court shall dismiss the action.”);
Lance v. Coffman, 549 U.S. 437, 439 (2007) (“Federal courts
must determine that they have jurisdiction before proceeding
to the merits.”). Although pro se complaints are held to
less stringent standards than pleadings drafted by attorneys,
Erickson v. Pardus, 551 U.S. 89 (2007), a pro se plaintiff is not
exempt from “compliance with relevant rules of procedural
and substantive law”, Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983), and still must establish that the Court has subject
matter jurisdiction over the action. Ally v. Sukkar, 128 F.
App'x 194, 195 (2d Cir. 2005).
Even where subject matter is established, the Court
may be divested of subject matter jurisdiction in certain
circumstances, such as where the defendant is immune
from suit. See, e.g., Mireles v. Waco, 502 U.S. 9, 11-12
(1991) (federal courts lack subject matter jurisdiction over
claims against judges relating to the exercise of their judicial
functions on immunity grounds); Gollomp v. Spitzer, 568
F.3d 355, 366 (2d Cir. 2009) (“[A]s a general rule, state
governments may not be sued in federal court unless they
have waived their Eleventh Amendment immunity, or unless
Congress has abrogated the states’ Eleventh Amendment
immunity[.]”).
DISCUSSION
I. Eleventh Amendment Immunity
*4 The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const.
Amend. XI. The Supreme Court has long held that the
Eleventh Amendment bars suits against a state by one of its
own citizens in federal court. See, e.g., Bd. of Trs. of Univ.
of Alabama v. Garrett, 531 U.S. 356, 363 (2001). Eleventh
Amendment immunity extends to state officials acting in their
official capacities, including state court judges. Thomas v.
Martin-Gibbons, No. 20-3124, 2021 WL 2065892 (2d Cir.
May 24, 2021) (summary order) (affirming dismissal of pro
se Section 1983 claims against the State of New York and a
state court judge in his official capacity based on Eleventh
Amendment immunity).
However, sovereign immunity “is not absolute,” and the
Supreme Court “ha[s] recognized ... two circumstances in
which an individual may sue a State.” Coll. Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 670 (1999). First, “a State may waive its sovereign
immunity by consenting to suit.” Id. Second, “Congress may
authorize such a suit in the exercise of its power to enforce the
Fourteenth Amendment.” Id.; see also Kimel v. Florida Bd. Of
Regents, 528 U.S. 62, 80 (2000). Neither of these exceptions
applies in this case. It is well-established that New York State
has not waived its sovereign immunity from Section 1983
claims. Mamot v. Bd. of Regents, 367 F. App'x 191, 192
(2d Cir. 2010) (summary order). Moreover, Congress did not
abrogate that immunity when it enacted Section 1983. See
Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)
(“Congress, in passing § 1983, had no intention to disturb
the States’ Eleventh Amendment immunity[.]”); Clark v.
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Schroeder, 847 F. App'x 92, 93-94 (2d Cir. 2021) (“Absent
the State's express waiver or a congressional abrogation of
immunity, the Eleventh Amendment renders a state immune
from federal lawsuits brought either by its own citizens or by
citizens of another state.”).
Thus, the Eleventh Amendment precludes Plaintiff's claims
against NYS and the individuals Defendants sued in their
official capacities. See, e.g., Parker v. New York, No. 22-
CV-3170(GRB)(AYS), 2022 WL 2441215, at *3 (E.D.N.Y.
July 1, 2022) (finding New York state has not waived
its Eleventh Amendment immunity and dismissing pro se
plaintiff's Section 1983 claims against New York State).
Plaintiff does not argue otherwise having been given an
opportunity to do so. See DE 8. Accordingly, the Court
lacks subject matter jurisdiction to adjudicate Plaintiff's
Section 1983 claims brought against NYS and the individual
Defendants in their official capacities. Thus, such claims are
dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 12(h)(3). 3
II. Judicial Immunity
Judges have absolute immunity from suit for judicial acts
performed in their judicial capacities. Mireles, 502 U.S.
at 11 (“[J]udicial immunity is an immunity from suit, not
just from the ultimate assessment of damages.”). Indeed,
“judicial acts -- even if they are alleged to have been done
maliciously or corruptly -- are not subject to civil liability.”
Davis v. Gillespie, No. 22-CV-6207, 2023 WL 5002553, at
*5 (E.D.N.Y. Aug. 4, 2023) (citing Stump v. Sparkman, 435
U.S. 349, 355-56 (1978) (finding state court judge absolutely
immune from § 1983 suit where that judge had power to
entertain and act upon motions in an underlying case)). “The
Supreme Court has generally concluded that acts arising
out of, or related to, individual cases before the judge are
considered judicial in nature.” See Brady v. Ostrager, 834 F.
App'x 616, 618 (2d Cir. 2020) (quoting Bliven v. Hunt, 579
F.3d 204, 210 (2d Cir. 2009)). Absolute judicial immunity “is
not overcome by allegations of bad faith or malice,” and a
judge cannot “be deprived of immunity because the action he
took was in error ... or was in excess of his authority.” Mireles,
502 U.S. at 11 (internal quotation marks omitted); Bliven, 579
F.3d at 209.
*5 Here, the challenged conduct of the individual
Defendants occurred during the course of the underlying
state court proceedings and any actions they took in those
cases were judicial acts for which they are afforded absolute
judicial immunity. Accordingly, Plaintiff's claims against the
individual Defendants are dismissed without prejudice for
lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(h)(3). 4
III. State Law Claims
Under 28 U.S.C. § 1367(a), “the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under
Article III of the United States Constitution.” However, courts
“may decline to exercise supplemental jurisdiction over a
claim” if “the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
The Supreme Court explained that “in the usual case in which
all federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction
doctrine -- judicial economy, convenience, fairness, and
comity -- will point toward declining to exercise jurisdiction
over the remaining state-law claims.” Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Here, given the absence of a plausible federal claim, the
interests of judicial economy, convenience, fairness, and
comity weigh in favor of not exercising supplemental
jurisdiction at this time over any state law claims that may
be reasonably construed from the complaint. Accordingly, the
Court declines to exercise supplemental jurisdiction over any
potential state-law claims contained in Plaintiff's complaint
and dismisses any such claims without prejudice.
IV. Leave to Amend
A pro se plaintiff should ordinarily be given the opportunity
“to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Shomo v. City of New York, 579 F.3d 176, 183 (2d
Cir. 2009) (internal quotation marks and citation omitted).
However, leave to amend is not required where it would
be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d
Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988). Given that Plaintiff's claims could not be cured with
amendment, leave to amend would be futile and is thus,
denied.
CONCLUSION
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Based on the foregoing, Plaintiff's complaint is dismissed
without prejudice for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(h)(3).
Given the dismissal of the complaint, Plaintiff's request for
injunctive relief is denied and Defendants’ request for a pre-
motion conference is denied as moot. The Clerk of the Court
shall enter judgment accordingly and mark this case closed.
The Clerk of the Court shall also mail a copy of this Order to
the pro se Plaintiff at the address of record and note service
on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good
faith and therefore in forma pauperis status is denied for the
purpose of any appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
*6 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 5625440
Footnotes
1 Plaintiff also seeks an order “restrain[ing] the [D]efendants from any further state court action until the federal
court dispute is adjudicated. Plaintiff also requests the court to vacate any state court judgments or orders
in the interest of justice,” (DE 8 at 21.)
2 The exhibits are largely excerpts from law treatises, copies of cases, and state and federal statutory laws,
well as several reports prepared on Plaintiff's behalf concerning the mortgage at issue in the underlying state
case. See DE 1-1.
3 Plaintiff's Section 1983 claims against NYS are frivolous for the additional reason that New York State is not
a “person” within the meaning of Section 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (State
is not a “person” for the purpose of § 1983 claims); Zuckerman v. Appellate Div., Second Dep't Supreme
Court, 421 F.2d 625, 626 (2d Cir. 1970) (Court not a “person” within the meaning of 42 U.S.C. § 1983).
4 Given that the Eleventh Amendment and judicial immunity divest this Court of subject matter jurisdiction, the
Court need not address the application of the Rooker-Feldman doctrine and declines to do so.
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2025 WL 3003384
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ryan D. MADORE, ON BEHALF
OF M.R.M. and G.J.M., Plaintiffs,
v.
Salvatore A. PAVONE, Esq., David M. Primo,
Esq., and Hon. Christina F. DeJoseph, Defendants.
5:25-cv-00095 (BKS/MJK)
|
Signed October 27, 2025
Attorneys and Law Firms
Plaintiff Pro se: Ryan David Madore, Fayetteville, NY 13066.
For Defendants: Letitia James, Attorney General for the
State of New York, Elizabeth Lombardi, Assistant Attorney
General, of Counsel, 300 S. State Street, Ste. 300, Syracuse,
NY 13202.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 Plaintiff pro se Ryan David Madore brings this action
under 42 U.S.C. § 1983 against Defendants Salvatore
Pavone, Esq., David M. Primo, Esq., and Onondaga County
Family Court Judge Christina F. DeJoseph. Plaintiff alleges
violations of his and his children's rights under the United
States Constitution in connection with Onondaga County
Family Court proceedings. (Dkt. No. 1). 1 Plaintiff seeks the
restoration of “father/son” rights, the return of his “biological
children being unlawfully alienated[,]” and the imposition of
a “penalty[,]” “fine[,] and imprisonment[.]” (Id. at 14-15).
Presently before the Court is Defendants’ motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)
(2), 12(b)(5), and 12(b)(6). (Dkt. No. 11). The motion is fully
briefed. (Dkt. Nos. 11-2, 14, 16). 2 Also before the Court is
Plaintiff's second motion to appoint counsel. (Dkt. No. 10).
For the reasons that follow, Defendants’ motion to dismiss is
granted, and Plaintiff's motion to appoint counsel is denied as
moot.
II. BACKGROUND 3
Plaintiff's claims arise out of a series of family court
proceedings and orders in Onondaga County Family Court,
pertaining to the custody and visitation of his children M.R.M.
and G.J.M. (See Dkt. No. 1). The Complaint is difficult to
follow, but it appears that most of the relevant proceedings
took place before Salvatore Pavone, Esq., “acting in his
official capacity as [ ] appointed attorney referee[,]” (id. at
3-9), and Onondaga County Family Court Judge Christina F.
DeJoseph, (id. at 8-12).
On November 23, 2016, Pavone presided over a custody
proceeding involving Plaintiff and M.R.M. (Dkt. No. 1, at
7). “[T]he court[-]appointed attorney assigned to represent
[Plaintiff] in [his] visitation/custody case relieved himself
minutes prior to [the] proceedings[,]” and Plaintiff proceeded
without counsel. (Id. at 7, 11). Plaintiff lost custody of M.R.M
as a result of that proceeding. (Id.).
*2 Years later, on July 13, 2023, Pavone “proposed an order
to suspend [Plaintiff's] parenting time, pending further order
by [the] court.” (Id. at 8-9). Plaintiff appears to allege that
Judge DeJoseph stopped Pavone's proposed orders. (Id. at
8). On September 7, 2023, Pavone issued an Emergency
Order to Show Cause, which was “received and processed” by
David Primo, Chief Clerk for the Onondaga County Family
Court. (Dkt. Nos. 1, at 8; 18-1, at 21-22). Plaintiff alleges
Pavone issued a temporary order that required Plaintiff to stay
away from M.R.M. (Dkt. No. 1, at 9). 4 “Plaintiff was not
informed of [the] proceedings and was not present[.]” (Id. at
5). On February 28, 2024, a “fact finding and disposition”
occurred, and a two-year full stay away order of protection
was issued “by default.” (Id. at 6). On March 21, 2024,
Primo wrote Plaintiff a letter responding to Plaintiff's request
for a transcript of the February 28, 2024 proceedings,
and enclosing the forms and instructions for ordering the
transcript. (Id. at 9-10).
On June 17, 2024, Plaintiff filed a petition for violation of
his custody and visitation orders. (Dkt. Nos. 1, at 12; 18-1,
at 73). On August 12, 2024, Plaintiff also filed a notice of
motion for “emergency judicial relief” in Onondaga County
Family Court, asserting that that he was facing “retaliat[i]on
for [ ] filing a petit[i]on with NY Onondaga County Family
Court alleging numerou[s] civil rights violations by multiple
New York State Fam[i]ly Court Officers.” (Dkt. No. 1, at
12). On September 16, 2024, Judge DeJoseph dismissed both
Plaintiff's June 17, 2024 petition and August 12, 2024 motion.
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(Id. at 12; see also Dkt. No. 18-1, at 73). On September 23,
2024, Plaintiff filed a petition for an order of protection, which
was dismissed on September 25, 2024. (Dkt. No. 1, at 12-13).
Also on September 23, 2024, Plaintiff filed a petition for
modification of his custody and visitation orders, along with
another petition for violation. (Id.). Those petitions were also
dismissed. (Dkt. Nos. 1, at 12-13; 18-1, at 79).
III. DISCUSSION
A. Claims on behalf of M.R.M. and G.J.M.
As a preliminary matter, Defendants contend that any claims
Plaintiff asserts on behalf of his minor children must
be dismissed, because Plaintiff, a non-attorney, may not
represent his children. (Dkt. No. 11-2, at 13-14). The Court
agrees that Plaintiff cannot represent his children. See Cheung
v. Youth Orchestra Found., 906 F.2d 59, 61 (2d Cir. 1990)
(“[A] non-attorney parent must be represented by counsel in
bringing an action on behalf of his or her child[.]”); Berrios v.
New York City Hous. Auth., 564 F.3d 130, 135 (2d Cir. 2009).
To the extent Plaintiff seeks to proceed with claims on behalf
of his children he must obtain an attorney to represent the
children in this case. If a notice of appearance is not filed
by counsel within thirty days of this Decision and Order,
the claims of M.R.M. and G.J.M. will be dismissed without
prejudice.
B. Motion to Dismiss – Rules 12(b)(1) and 12(b)(6)
Defendants argue that the Complaint must be dismissed
pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction, because Plaintiff's claims are barred (1) against
Defendants in their official capacity by the Eleventh
Amendment, (2) by the doctrine of judicial immunity, and (3)
by the Rooker-Feldman doctrine. (Dkt. No. 11-2, at 14-21).
However, “[a] defense of absolute judicial immunity or quasi-
judicial immunity has nothing to do with a federal court's
jurisdiction.” Wang v. Delphin-Rittmon, 664 F. Supp. 3d 205,
216-218 (D. Conn. 2023) (“As a leading treatise recognizes,
‘[t]he defense of qualified or judicial immunity has also been
held to be properly raised via Rule 12(b)(6) rather than Rule
12(b)(1), although one can find courts not being too particular
about the distinction.’ ” (quoting 5B Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1350 (3d
ed.))); Nevada v. Hicks, 533 U.S. 353, 373, 121 S.Ct. 2304,
150 L.Ed.2d 398 (2001) (“There is no authority whatever
for the proposition that absolute- and qualified-immunity
defenses pertain to the court's jurisdiction[.]”). Therefore,
Defendants’ motion to dismiss under the doctrine of judicial
immunity is properly considered under the Rule 12(b)(6)
standard. See also Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir.
2020) (“Because [the plaintiff]’s claims against [the defendant
judge] are barred by absolute judicial immunity, they were
correctly dismissed under Rule 12(b)(6).”).
1. Standard
*3 “A court faced with a motion to dismiss pursuant to both
Rules 12(b)(1) and 12(b)(6) must decide the jurisdictional
question first because a disposition of a Rule 12(b)(6) motion
is a decision on the merits and, therefore, an exercise of
jurisdiction.” Mann v. N.Y. State Ct. of Appeals, No. 21-
cv-49, 2021 WL 5040236, at *3, 2021 U.S. Dist. LEXIS
209018 (N.D.N.Y. Oct. 29, 2021) (citation omitted). A motion
to dismiss based on an abstention doctrine is considered a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1), City of New York v. Milhelm Attea & Bros., Inc.,
550 F. Supp. 2d 332, 341 (E.D.N.Y. 2008), as is a motion
to dismiss under the Rooker-Feldman doctrine, Hylton v.
J.P. Morgan Chase Bank, N.A., 338 F. Supp. 3d 263, 273
(S.D.N.Y. 2018). A district court resolving a motion to
dismiss under Rule 12(b)(1) “must take all uncontroverted
facts in the complaint ... as true[ ] and draw all reasonable
inferences in favor of the party asserting jurisdiction.” Tandon
v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239,
243 (2d Cir. 2014). The Court may also “refer to evidence
outside the pleadings” and “take judicial notice of documents
in the public record, including state court filings.” Krajisnik
Soccer Club, Inc. v. Krajisnik Football Club, Inc., No. 20-
cv-1140, 2021 WL 2142924, at *2, 2021 U.S. Dist. LEXIS
99456 (N.D.N.Y. May 26, 2021) (citations omitted).
To survive a motion to dismiss under Rule 12(b)(6) for failure
to state a claim, “a complaint must provide ‘enough facts to
state a claim to relief that is plausible on its face,’ ” Mayor &
City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d
Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff
must provide factual allegations sufficient “to raise a right to
relief above the speculative level.” Id. (quoting Twombly, 550
U.S. at 555, 127 S.Ct. 1955). The Court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in the plaintiff's favor. See EEOC v. Port Auth., 768
F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc'ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However,
“the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009).
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The complaint of a plaintiff proceeding pro se “must be
construed liberally with ‘special solicitude’ and interpreted to
raise the strongest claims that it suggests.” Hogan v. Fischer,
738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011)). “Nonetheless, a pro se
complaint must state a plausible claim for relief.” Id.
2. Subject Matter Jurisdiction
a. Eleventh Amendment Immunity
The Eleventh Amendment has long been construed as barring
a citizen from bringing a suit against their own state in
federal court, under the fundamental principle of “sovereign
immunity.” U.S. Const. amend. XI (“The Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.”); Hans v. Louisiana, 134
U.S. 1, 10-21, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S.Ct.
2028, 138 L.Ed.2d 438 (1997); Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d
67 (1984). Eleventh Amendment immunity is lost only if
Congress unequivocally abrogates states’ immunity, or a state
expressly consents to suit. Gollomp v. Spitzer, 568 F.3d 355,
365-66 (2d Cir. 2009). It is well-settled that Congress did
not abrogate states’ immunity through 42 U.S.C. § 1983,
see Quern v. Jordan, 440 U.S. 332, 332-45, 99 S.Ct. 1139,
59 L.Ed.2d 358 (1979), and that New York State has not
waived its sovereign immunity from Section 1983 claims, see
Nolan v. Cuomo, No. 11-cv-5827, 2013 WL 168674, at *7,
2013 U.S. Dist. LEXIS 6680 (E.D.N.Y. Jan. 16, 2013) (citing
Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35,
39–40 (2d Cir.1977)).
*4 The Eleventh Amendment also bars suits for damages
against state officials acting in their official capacities. See
Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099,
87 L.Ed.2d 114 (1985) (a claim for damages against state
officials in their official capacity is considered to be a claim
against the State and is therefore barred by the Eleventh
Amendment); Ying Jing Gan v. City of New York, 996 F.2d
522, 529 (2d Cir. 1993) (“To the extent that a state official
is sued for damages in [their] official capacity, such a suit is
deemed to be a suit against the state, and the official is entitled
to invoke the Eleventh Amendment immunity belonging to
the state.”). Claims against the New York Unified Court
System and its members are likewise barred by the Eleventh
Amendment. See Gollomp, 568 F.3d at 365-68 (holding that
the New York Unified Court System is an “arm of the State”
within meaning of Eleventh Amendment sovereign immunity
doctrine and affirming dismissal of § 1983 claim).
Defendants assert that Plaintiff's claims against Defendants in
their official capacity are barred by the Eleventh Amendment.
(See Dkt. No. 11-2, at 14-16). The Court agrees. Plaintiff
names all three Defendants in their official capacities as part
of the Onondaga County Family Court, (see Dkt. No. 1, at
1-3, 8), which is part of the New York Unified Court System,
see Walker v. Fam. Ct. Judge Catherine Cholakis, No. 19-
cv-1288, 2020 WL 3503158, at *7, 2020 U.S. Dist. LEXIS
114355 (N.D.N.Y. June 29, 2020) (recognizing county family
court as part of the New York Unified Court System (citing
N.Y. Const. Art. VI, §§ 1, 13)). Because Plaintiff alleges that
Defendants violated his rights while acting in their official
capacities, to the extent that Plaintiff seeks monetary damages
against Defendants, his claims are barred by the Eleventh
Amendment. See Graham, 473 U.S. at 169, 105 S.Ct. 3099;
Walker, 2020 WL 3503158, at *7, 2020 U.S. Dist. LEXIS
114355 (dismissing claims against county family court judge
in her official capacity as barred under the doctrine of
sovereign immunity); Weinstein v. Bogacz, No. 07-cv-1259,
2007 WL 9724303, at *2, 2007 U.S. Dist. LEXIS 114234
(E.D.N.Y. Sept. 25, 2007) (dismissing official capacity claims
against family court attorney referee as prohibited under the
Eleventh Amendment), aff'd, 320 F. App'x 56 (2d Cir. 2009);
Casaburro v. Giuliani, 986 F. Supp. 176, 182 (S.D.N.Y.
1997) (dismissing official capacity claims against County
Clerk as barred on Eleventh Amendment grounds). Therefore,
Defendants’ motion to dismiss Plaintiff's claims against
Defendants in their official capacity is granted, without
prejudice, 5 for lack of subject matter jurisdiction.
b. Rooker-Feldman Doctrine
“Under the Rooker-Feldman doctrine, federal district and
circuit courts lack subject-matter jurisdiction over cases
that are essentially ‘appeals from state-court judgments.’ ”
Schweitzer v. Crofton, 935 F. Supp. 2d 527, 540 (E.D.N.Y.
2013) (quoting Hoblock v. Albany Cnty. Bd. of Elections,
422 F.3d 77, 84 (2d Cir.2005)), aff'd, 560 F. App'x 6 (2d
Cir. 2014). The Rooker-Feldman doctrine bars federal claims
“brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review
and rejection of those judgments.” Green v. Mattingly, 585
F.3d 97, 101 (2d Cir. 2009) (quoting Exxon Mobil Corp. v.
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Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517,
161 L.Ed.2d 454 (2005)); see also Hoblock, 422 F.3d at 84-85.
The underlying principle of the Rooker-Feldman doctrine is
that “within the federal judicial system, only the Supreme
Court may review state-court decisions.” Hoblock, 422 F.3d
at 85.
*5 There are four “requirements” that must be satisfied
before Rooker-Feldman applies: (1) the “federal-court
plaintiff must have lost in state court,” (2) the plaintiff “must
complain of injuries caused by a state-court judgment,” (3) the
plaintiff “must invite district court review and rejection of that
judgment,” and (4) the state-court judgment “must have been
rendered before the district court proceedings commenced.”
Green, 585 F.3d at 101 (citing Hoblock, 422 F.3d at 85)
(internal quotation marks and brackets omitted). “In the
child custody context, in order to satisfy this substantive
requirement, a plaintiff must be ‘plainly’ seeking to ‘repair
[ ] to federal court to undo the [Family Court] judgment.’ ”
McKnight v. Middleton, 699 F. Supp. 2d 507, 515 (E.D.N.Y.
2010) (quoting Green, 585 F.3d at 102), aff'd, 434 F. App'x
32 (2d Cir. 2011). As such, “Rooker-Feldman does not apply
to [a p]laintiff's claims that only seek monetary damages or
prospective injunctive relief and do not seek to overturn a
child custody award.” Id.
Here, Defendants argue that Plaintiff's request for this Court
to return his children and “[r]estore father/son, God given,
inalienable rights” is barred by the Rooker-Feldman doctrine.
(Dkt. No. 11-2, at 19-21). The Court agrees. The allegations
in the Complaint, coupled with the court orders separately
filed by Plaintiff, make it clear that Plaintiff lost custody as
a result of an Onondaga County Family Court order, (see
Dkt. No. 1, at 7, 11-13), and that he was (or is) prevented
from seeing his children because of state court orders of
protection, (see Dkt. Nos. 1, at 5-6, 8-9; 18-1, at 21-26,
39-42). Plaintiff also concedes, while “[a]ddressing [the]
Rooker[-]Feldman Doctrine” in his response brief, that “the
court judgments were all rendered prior to commencement of
this proceeding.” (Dkt. No. 14, at 6).
Plaintiff has clearly “lost in state court,” and complains
of injuries caused by state court judgments. See Green,
585 F.3d at 101. Plaintiff also, in seeking injunctive relief,
invites review and rejection of those judgments, which were
rendered before the instant proceedings commenced. See
id. Therefore, Plaintiff's requested injunctive relief must be
dismissed for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine, without prejudice. See Voltaire
v. Westchester Cnty. Dep't of Soc. Servs., No. 11-cv-8876,
2016 WL 4540837, at *9, 2016 U.S. Dist. LEXIS 116409
(S.D.N.Y. Aug. 29, 2016) (holding Rooker-Feldman barred
plaintiff's federal claims where Plaintiff “lost in state court
when her parental rights were terminated,” complained of
injury “by alleging that the state judgment violated her federal
due process rights as a parent,” and sought “vacatur of the
order terminating her parental rights” “and/or damages to
remedy injury resulting from it”) (collecting cases); Rotering
v. Amodeo, No. 07-4357-cv, 2009 WL 579138, at *2, 2009
U.S. App. LEXIS 4966 (2d Cir. Mar. 6, 2009) (affirming
district court dismissal for lack of subject matter jurisdiction
pursuant to Rooker-Feldman doctrine where plaintiff “called
upon the district court to overturn an injurious state-court
judgment” and “failed to present any independent claim based
on an injury that was not caused by the state-court judgment
denying his [ ] petition”).
3. Judicial Immunity
Defendants argue that Plaintiff's Complaint must be dismissed
against all Defendants under the doctrine of judicial
immunity. (Dkt. No. 11-2, at 16-19). “ ‘[J]udges generally
have absolute [judicial] immunity from suits for money
damages for their judicial actions,’ but not for actions taken in
an administrative, legislative, or executive capacity.” Kellogg
v. Nichols, 149 F.4th 155, 159 (2d Cir. 2025) (quoting Bliven
v. Hunt, 579 F.3d 204, 209-10 (2d Cir. 2009)). “In determining
whether an act by a judge is ‘judicial,’ thereby warranting
absolute immunity,” a court must “take a functional approach,
for such ‘immunity is justified and defined by the functions it
protects and serves, not by the person to whom it attaches.’
” Id. “Generally speaking, ‘acts arising out of, or related to,
individual cases before the judge are considered judicial in
nature.’ ” Id. (quoting Bliven, 579 F.3d at 210). “Judicial
immunity is so broad that judges and referees ‘are not liable
to civil actions for their judicial acts, even when such acts ...
are alleged to have been done maliciously or corruptly.’ ”
Topolski v. Wrobleski, No. 13-cv-0872, 2014 WL 2215761, at
*3, 2014 U.S. Dist. LEXIS 73031 (N.D.N.Y. May 29, 2014)
(quoting Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct.
1099, 55 L.Ed.2d 331 (1978)). Absolute judicial immunity
can only be overcome if: (1) the act is not taken in the judge's
judicial capacity, or (2) the act, “though judicial in nature, [is]
taken in the complete absence of all jurisdiction.” Mireles v.
Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).
*6 “[A] court appointed referee is similarly entitled to
absolute immunity for [their] official acts.” Topolski, 2014
WL 2215761, at *3, 2014 U.S. Dist. LEXIS 73031 (quoting
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Renner v. Stanton, No. 13-cv-01676, 2013 WL 1898389, at
*3, 2013 U.S. Dist. LEXIS 65015 (E.D.N.Y. May 7, 2013)).
Judicial immunity “also applies to government officials,
including clerks of court and other court employees, for their
acts that assist a judge in the performance of [their] judicial
duties.” Mendez v. Johnson, No. 22-cv-6811, 2022 WL
3587600, at *2, 2022 U.S. Dist. LEXIS 150562 (S.D.N.Y.
Aug. 22, 2022). “A court's inherent power to control its
docket is part of its function of resolving disputes between the
parties,” and court staff have absolute immunity for actions
taken in furtherance of that judicial function. Rodriguez v.
Weprin, 116 F.3d 62, 66–67 (2d Cir. 1997) (holding that court
clerks were entitled to immunity for claim that they failed
“to properly manage the court calendar,” resulting in delay in
scheduling an appeal). “Court clerks enjoy absolute immunity
even for administrative functions if the task was undertaken
pursuant to the explicit direction of a judicial officer or
pursuant to the established practice of the court.” Humphrey
v. Ct. Clerk for the Second Cir., No. 508-cv-0363, 2008 WL
1945308, at *2, 2008 U.S. Dist. LEXIS 35912 (N.D.N.Y. May
1, 2008) (citing Rodriguez, 116. F.3d at 67); Topalski, 2014
WL 2215761, at *5, 2014 U.S. Dist. LEXIS 73031 (“Where
a clerk [ ] acts ‘pursuant to the established practice of the
court,’ [they are] entitled to absolute immunity.” (quoting
McKnight, 699 F. Supp. 2d at 507)).
The family court orders challenged by Plaintiff were clearly
issued by Pavone and Judge DeJoseph from the bench, while
they were presiding over Plaintiff's custody and visitation
matters. 6 (See generally Dkt. No. 1). Pavone and Judge
DeJoseph are therefore entitled to absolute judicial immunity
for those acts. See Carley v. Lawrence, 24 F. App'x 66, 67
(2d Cir. 2001) (“Plaintiff's claims against Judge Lawrence
are based upon orders that he issued from the bench while
presiding over a matter in Family Court. Such orders qualify
as judicial acts. Therefore, Judge Lawrence is entitled to
absolute immunity for those acts.”). To the extent that Plaintiff
alleges any claim for monetary damages against Pavone
and Judge DeJoseph in their individual capacities that is
not otherwise barred by Rooker-Feldman, such a claim is
therefore barred by the doctrine of judicial immunity.
With respect to Primo, Plaintiff's factual allegations are
sparse; Plaintiff alleges Primo “processed” an Emergency
Order to Show Cause, and that Primo sent Plaintiff a letter
with the forms and instructions to enable Plaintiff to obtain
a transcript of the February 28, 2024 hearing. (See Dkt. No.
1, at 8, 10). These were “acts arising out of, or related to,”
Plaintiff's individual Onondaga County Family Court cases
to “assist” the Family Court judges “in the performance of
[their] judicial duties[.]” See Mendez, 2022 WL 3587600,
at *2-3, 2022 U.S. Dist. LEXIS 150562. Primo was entitled
to immunity for processing a court order and providing
Plaintiff with the court's forms and instructions for ordering
a transcript. See Rodriguez, 116 F.3d at 66–67; Humphrey,
2008 WL 1945308, at *2, 2008 U.S. Dist. LEXIS 35912;
Topalski, 2014 WL 2215761, at *5, 2014 U.S. Dist. LEXIS
73031. Therefore, Plaintiff's claims against Primo must also
be dismissed, because Primo is also entitled to absolute
judicial immunity. Mendez, 2022 WL 3587600, at *2-3,
2022 U.S. Dist. LEXIS 150562 (dismissing claims against
judge, clerk, and chief clerk where claims arose “from actions
taken with respect to a case before” before the judge in
city court; plaintiff “fail[ed] to allege any facts showing that
these defendants acted beyond the scope of their judicial
responsibilities or outside their jurisdiction”). 7
IV. LEAVE TO AMEND
*7 Under Federal Rule of Civil Procedure 15(a)(2) a
court should freely give leave to amend “when justice so
requires.” See McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 200 (2d Cir. 2007). Under Rule 15(a), absent
certain circumstances not at play here, a party may amend
its pleading only with the opposing party's written consent
or the court's leave. See Fed. R. Civ. P. 15(a)(1)–(2). A court
may, in its discretion, deny leave to amend “for good reason,
including futility, bad faith, undue delay, or undue prejudice
to the opposing party.” MSP Recovery Claims, Series LLC
v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023). A
request to amend is futile where the problem with the claim
is “substantive” and “better pleading will not cure it.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Here, the Eleventh Amendment, Rooker-Feldman doctrine,
and judicial immunity issues cannot be cured by better
pleading. The claims for monetary damages against
Defendants in their official capacities are barred by sovereign
immunity. Plaintiff's request for injunctive relief is barred
by the Rooker-Feldman doctrine. Additionally, any claims
for monetary damages against Defendants in their individual
capacities are barred by judicial immunity. Accordingly, the
complaint is dismissed in its entirety without opportunity to
amend. See Rochester Drug Co-Operative, Inc. v. Hiscox Ins.
Co., Inc., 545 F. Supp. 3d 21, 24 (W.D.N.Y. 2021) (“Where
it appears that granting leave to amend is unlikely to be
productive, [ ] it is not an abuse of discretion to deny leave
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to amend.” (quoting Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993))).
V. CONCLUSION
For these reasons, it is hereby
ORDERED that, to the extent Plaintiff seeks to proceed with
claims on behalf of his children he must obtain an attorney to
represent the children in this case. If a notice of appearance is
not filed by counsel on behalf of M.R.M. and G.J.M. within
thirty days of this Decision and Order, the claims of M.R.M.
and G.J.M. will be dismissed without prejudice and this case
will be closed, without further order of the Court; and it is
further
ORDERED that Defendants’ motion to dismiss (Dkt. No.
11) is GRANTED as to all of Plaintiff's claims: Plaintiffs’
claims for monetary relief against Defendants in their official
capacities are dismissed under the doctrine of sovereign
immunity under the Eleventh Amendment, without prejudice
but without leave to amend; and Plaintiff's claims for
injunctive or equitable relief are dismissed under the Rooker-
Feldman doctrine, without prejudice but without leave to
amend; and the remaining claims against the Defendants are
dismissed with prejudice because the Defendants are entitled
to judicial immunity; and it is further
ORDERED that Plaintiff's motion to appoint counsel (Dkt.
No. 10) is DENIED as moot.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 3003384
Footnotes
1 Plaintiff asserts violations of the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Fourteenth
Amendments to the United States Constitution. (Dkt. No. 1). Plaintiff also appears to invoke the New York
State Constitution. (Id.).
2 Plaintiff also filed a sur-reply to Defendant's motion to dismiss without seeking the Court's leave, in violation
of L.R. 7.1(a)(1). (See Dkt. No. 18). All parties, including pro se litigants, must follow the Court's local rules.
Nevertheless, in light of Plaintiff's pro se status, and out of an abundance of caution, the Court has considered
Plaintiff's sur-reply.
3 The facts are drawn from the Complaint, (Dkt. No. 1), and Plaintiff's responses to Defendants’ motion to
dismiss, (Dkt. Nos. 14, 18). See DeRocha v. Linstruth, No. 18-cv-1052, 2019 WL 5596252, at *1 n.1, 2019
U.S. Dist. LEXIS 188017 (N.D.N.Y. Oct. 30, 2019) (“The mandate to read the papers of pro se litigants
generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to
dismiss ... to the extent that those factual assertions are consistent with the allegations of the plaintiff's
complaint.”). The Court assumes the truth of, and draws reasonable inferences from, the well-pleaded factual
allegations, see Lynch v. City of N.Y., 952 F.3d 67, 74–75 (2d Cir. 2020), but does not accept as true any
legal conclusions asserted therein, see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009).
4 Plaintiff attached a copy of a September 14, 2023 temporary order of protection pertaining to M.R.M to his sur-
reply. (See Dkt. No. 18-1, at 23-24). That temporary order was not signed by Pavone. (See id. at 24). While
not referenced in the Complaint, Plaintiff also attached a copy of an order of protection dated September 21,
2023, directing him to stay away from G.J.M. (Id. at 41-42).
5 See Karupaiyan v. New York, No. 23-1257-cv, 2024 WL 2174272, at *2, 2024 U.S. App. LEXIS 11740 (2d Cir.
May 15, 2024) (remanding with instructions to modify judgment where court erroneously dismissed claims
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against State of New York with prejudice; “because the district court lacked jurisdiction over the claims against
the State of New York, it was erroneous to dismiss those claims with prejudice rather than without prejudice”).
6 To the extent that Plaintiff contends, by arguing that Pavone held “unlawful proceedings,” (see Dkt. No. 1,
at 7), that Pavone acted outside of his jurisdiction, Defendants correctly observe that “[t]he scope of the
judge's jurisdiction must be construed broadly, such that a court acts in the absence of all jurisdiction only
when it does not have any statutory or constitutional power to adjudicate the case.” (Dkt. No. 11-2, at 17-18
(quoting Gerken v. Gordon, 24-cv-00435, 2024 WL 4608307, at *9, 2024 U.S. Dist. LEXIS 196645 (N.D.N.Y.
Oct. 29, 2024))). See also Mendez, 2022 WL 3587600, at *2, 2022 U.S. Dist. LEXIS 150562 (noting “the
scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity of the judge”).
The Complaint does not allege any facts supporting a plausible inference that Pavone acted “in the absence
of all jurisdiction.” The fact that some of Defendants’ actions were taken while Plaintiff was not present does
not change the Court's analysis. See Bliven, 579 F.3d at 210 (“The fact that a proceeding is informal and ex
parte has not been thought to imply that an act otherwise within a judge's lawful jurisdiction was deprived of
its judicial character.” (internal quotations and citation omitted)).
7 Because the Court dismisses for lack of subject matter jurisdiction and on judicial immunity grounds, the
Court does not reach Defendants’ arguments with respect to service or the merits of Plaintiff's claims.
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McNeil v. Van Houten, Slip Copy (2025)
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KeyCite Blue-Striped Flag
Appeal Filed by McNeil v. Van Houten, 2nd Cir., December 4, 2025
2025 WL 3171001
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Aaron M. MCNEIL, Plaintiff,
v.
Matthew VAN HOUTEN, et al., Defendants.
3:25-cv-00725 (AMN/MJK)
|
Signed November 13, 2025
Attorneys and Law Firms
AARON M. MCNEIL, 417 Washington Street, Watertown,
New York 13601, Plaintiff pro se.
ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On June 6, 2025, Plaintiff pro se Aaron M. McNeil
commenced this action and asserted various claims under 42
U.S.C. § 1983 in connection with his arrest for violating an
order of protection. See Dkt. No. 1 (“Complaint”). Plaintiff
filed an Amended Complaint on June 16, 2025. Dkt. No. 5.
Plaintiff did not pay the filing fee and sought leave to proceed
in forma pauperis (“IFP”). Dkt. No. 9. 1 This matter was
referred to United States Magistrate Judge Mitchell J. Katz,
who, on July 22, 2025, granted Plaintiff's motion for leave
to proceed IFP and recommended that Plaintiff's claims be
dismissed. Dkt. No. 13 (“Report-Recommendation”).
Following the issuance of the Report-Recommendation, John
Rinaldi, 2 an individual who is neither a party to this action
nor a licensed attorney, filed three letter motions requesting
judicial reassignment, see Dkt. Nos. 14, 15, 17, and an
additional amended complaint. Dkt. No. 16. On September
11, 2025, this Court issued an order to show cause directing
Plaintiff to file a sworn affidavit affirming his identity as
the filer of all of Plaintiff's filings submitted in this case
to date. See Dkt. No. 19 (“Order to Show Cause”). The
Court reminded Plaintiff that unlicensed laypersons may not
represent anyone other than themselves, see Lattanzio v.
COMTA, 481 F.3d 137, 139 (2d Cir. 2007), and warned
Plaintiff that failure to comply with the Order to Show Cause
may result in the striking of filings not shown to be Plaintiff's
own. See Dkt. No. 19. Plaintiff failed to respond to the
Order to Show Cause. Plaintiff subsequently filed objections
to the Report-Recommendation, see Dkt. Nos. 24, 26, a
Second Amended Complaint, Dkt. No. 25, and a motion for
reconsideration. 3 Dkt. No. 27. Though not a model of clarity,
Plaintiff's Second Amended Complaint names various state
officials and municipal entities and appears to assert Section
1983 claims arising from an alleged conspiracy to maliciously
prosecute Plaintiff. See generally Dkt. No. 25.
For the reasons set forth below, Dkt. Nos. 14-17 are stricken
from the record for failure to comply with the Order to
Show Cause. The Court also reviews the sufficiency of
the allegations in Plaintiff's Second Amended Complaint
pursuant to 28 U.S.C. § 1915. 4 Following that review, and
for the reasons discussed below, Plaintiff's Second Amended
Complaint is dismissed with prejudice and without leave to
amend.
II. STANDARD OF REVIEW
*2 Pursuant to 28 U.S.C. § 1915(e), “the Court must dismiss
a complaint filed IFP if it 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.’ ” Brown v.
Budelmann, No. 23-cv-2, 2023 WL 4424119, at *2 (N.D.N.Y.
Apr. 17, 2023), report and recommendation adopted, 2023
WL 4144999 (N.D.N.Y. June 23, 2023) (quoting 28 U.S.C. §
1915(e)(2)(B), then citing Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998)). “To survive dismissal
for failure to state a claim, a complaint must plead enough
facts to state a claim that is ‘plausible on its face.’ ” Anthony v.
Murphy, No. 15-cv-450, 2015 WL 1957694, at *2 (N.D.N.Y.
Apr. 28, 2015) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)), report and recommendation adopted,
2015 WL 3409261 (N.D.N.Y. May 27, 2015). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “The Court must also dismiss a
complaint, or portion thereof, when the Court lacks subject
matter jurisdiction.” Wilson v. Flanders, No. 23-cv-263, 2023
WL 3251992, at *1 (N.D.N.Y. May 4, 2023) (citing Fed. R.
Civ. P. 12(h)(3)), report and recommendation adopted, 2023
WL 3496372 (N.D.N.Y. May 17, 2023).
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“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines
v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). While courts should not dismiss a pro se complaint
“without granting leave to amend at least once when ... a
valid claim might be stated,” Gomez v. USAA Fed. Sav. Bank,
171 F.3d 794, 795 (2d Cir. 1999) (internal quotations and
citations omitted), “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.’
” Wilson v. Flanders, 2023 WL 3251992, at *1 (internal
brackets omitted) (quoting Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000)). Moreover, a plaintiff's pro se status
neither exempts a plaintiff from compliance with relevant
rules of procedural and substantive law, see Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983) (citation omitted), nor excuses
frivolous or vexatious filings. See Iwachiw v. N.Y. State Dep't
of Motor Vehicles, 396 F.3d 525, 529 n.1 (2d Cir. 2005).
III. DISCUSSION
A. Order to Show Cause
Plaintiff did not comply with the Court's Order to Show
Cause. Plaintiff did not file a sworn affidavit that affirms his
identity as the filer of all Plaintiff's filings in this case or make
any other response to the Order to Show Cause. See Dkt. No.
19. Instead, on September 30, 2025, Plaintiff filed a notice
of change of address, see Dkt. No. 21, following which, the
Court, on October 6, 2025, again directed Plaintiff to respond
to the Order to Show Cause, and set a deadline of October 24,
2025. See Dkt. No. 23. Instead, Plaintiff filed objections to
the Report-Recommendation, a Second Amended Complaint,
and a motion for reconsideration. Dkt. Nos. 24-27.
Accordingly, those docket entries filed by John Rinaldi, Dkt.
Nos. 14-17, are stricken from the record.
B. Second Amended Complaint
Next, the Court considers the sufficiency of the allegations
in the Second Amended Complaint pursuant to Section 1915.
The Second Amended Complaint suffers from numerous
deficiencies, which the Court briefly outlines below.
First, Plaintiff's Second Amended Complaint includes John
Rinaldi and Plaintiff's child, Macklyn McNeil, as additional
plaintiffs. See Dkt. No. 25 at 1. A non-attorney is
prohibited from representing another individual in federal
court proceedings without the assistance of licensed counsel,
irrespective of whether that individual is a minor or an
incompetent person. See Berrios v. New York City Hous.
Auth., 564 F.3d 130, 134 (2d Cir. 2009); see also Iannaccone
v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (noting that a pro
se plaintiff “may not appear on another person's behalf in the
other's cause”). Plaintiff is not a licensed attorney and may not
hold himself out as one. See Goldstein v. Bowery Defendants,
No. 24-cv-5683, 2024 WL 3794341, at *7 n.1 (S.D.N.Y. Aug.
12, 2024) (directing plaintiff to desist from holding himself
out as an attorney) (citation omitted). 5 Because Plaintiff is
not an attorney, he cannot assert any claims on behalf of John
Rinaldi or Macklyn McNeil. Accordingly, the Court dismisses
all claims that Plaintiff asserts on behalf of John Rinaldi and
Macklyn McNeil.
*3 Second, to the extent that Plaintiff seeks to challenge
ongoing state court proceedings in Tompkins County Court,
this Court lacks subject matter jurisdiction under the Younger
abstention doctrine. Under Younger, federal courts must
abstain from adjudicating federal constitutional claims “that
involve or call into question ongoing state proceedings.”
Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191,
198 (2d Cir. 2002) (citing Younger v. Harris, 401 U.S.
37, 43-44 (1971)). “A state action is considered ‘pending’
for Younger purposes through the completion of the state
appeals process, even if the federal plaintiff has failed to
exercise his state appellate rights.” Jureli, LLC v. Schaefer,
53 F. Supp. 3d 552, 559 (E.D.N.Y. 2014) (citations omitted).
According to Plaintiff's submissions in this action, his state
court proceeding is indeed ongoing—he has pled guilty, but
he has not yet been sentenced. See Dkt. No. 24-7 at 4-9 (signed
plea agreement with a sentencing date of April 13, 2026).
Accordingly, Younger abstention is proper here.
Third, to the extent that Plaintiff seeks to challenge his
conviction in Tompkins County Court, the Rooker-Feldman
doctrine bars Plaintiff's claims. Under Rooker-Feldman,
federal district courts lack subject matter jurisdiction over
suits where “a plaintiff seeks relief that invites a federal
district court to reject or overturn a final decision of a state
court as to a conviction.” Cathlin v. City of New York, No.
23-cv-4219, 2023 WL 6929187, at *3 (S.D.N.Y. Oct. 18,
2023) (collecting cases). Here, Plaintiff's claims are barred
under Rooker-Feldman because Plaintiff pled guilty and was
convicted in state court before bringing this action. See, e.g.,
Moalawi v. James, No. 22-cv-6770, 2023 WL 4817618, at
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McNeil v. Van Houten, Slip Copy (2025)
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*2 (S.D.N.Y. July 27, 2023) (finding that Rooker-Feldman
barred Plaintiff's challenge to his state court conviction under
Section 1983).
Fourth, Plaintiff's Section 1983 claims are also barred by Heck
v. Humphrey. 512 U.S. 477 (1944). Under Heck, a Section
1983 plaintiff is barred from seeking damages for an allegedly
unconstitutional conviction unless the conviction has been
invalidated. Id. at 486-87. Here, Plaintiff's claims arise from
his state court conviction—Plaintiff's violation of an order
of protection, which resulted in his arrest and conviction
in Tompkins County, see Dkt. No. 24-7 at 4-13—and that
conviction has not been invalidated. Therefore, Plaintiff's
Section 1983 claims are also barred by Heck.
Fifth, Plaintiff has, in any event, failed to state a claim against
any Defendant, either because the Defendants are immune
or because the claims are not plausibly alleged. See, e.g.,
D'Alessandro v. City of New York, 713 F. App'x 1, 8 (2d
Cir. 2017) (finding district attorneys and assistant district
attorneys immune from suit when acting as prosecutors);
Mireles v. Waco, 502 U.S. 9, 11 (1991) (noting that judges
have absolute immunity for judicial acts performed in their
judicial capacities); King v. Simpson, 189 F.3d 284, 287-88
(2d Cir. 1999) (noting that, as a general matter, parole officers
are entitled to immunity in the performance of their duties);
White v. Syracuse Police Dep't, No. 18-cv-1471, 2019 WL
981850, at *3 (N.D.N.Y. Jan. 7, 2019) (indicating that a
municipal department cannot be sued as an entity separate
from the municipality in which it is located); Riley v. Cuomo,
No. 17-cv-1631, 2018 WL 1832929, at *4 (E.D.N.Y. April
16, 2018) (holding that the New York State Police is immune
from Section 1983 claims); Deferio v. City of Syracuse, 770
F. App'x 587, 591 (2d Cir. 2019) (dismissing claims against
the municipality for failure to allege a policy or custom
that resulted in the alleged deprivation of rights); Wynder v.
Goltzer, No. 24-cv-7925, 2025 WL 2207248, at *6 (S.D.N.Y.
Aug. 3, 2025) (barring a claim of ineffective assistance
of counsel against defense attorney unless plaintiff can
demonstrate that his conviction or sentence was invalidated);
Lanning v. City of Glens Falls, 908 F.3d 19, 29 (2d Cir. 2018)
(affirming dismissal of malicious prosecution claim for lack
of favorable termination).
*4 Lastly, this action is frivolous and must therefore be
dismissed. See 28 U.S.C. § 1915(e)(2)(B)(i). “An action is
frivolous when either: (1) the factual contentions are clearly
baseless ...; or (2) the claim is based on an indisputably
meritless legal theory.” Livingston, 141 F.3d at 437 (internal
quotations and citations omitted); see also Neitzke v. Williams,
490 U.S. 319, 325 (1989) (stating that a claim is frivolous
when it “lacks an arguable basis either in law or in fact”).
The Court finds that Plaintiff does not provide any plausible
factual support for his claims. Plaintiff alleges, inter alia, that
Assistant District Attorney Perks-Quinlan fabricated a charge
of strangulation; Judge Kennedy-Smith visited Plaintiff while
he was incarcerated at Tompkins County Jail and threatened
him with a sentence of death if he exercised his right to trial;
District Attorney Van Houten is under a formal investigation
for engaging in a criminal enterprise; and the New York State
Commission on Judicial Conduct formally sanctioned Judge
Kennedy-Smith. See Dkt. No. 25 at ¶¶ 24-25, 29, 38-39.
Plaintiff's allegations amount to conclusory and entirely
unsupported claims that display a level of irrationality and
must therefore be dismissed as frivolous.
The Court has also carefully considered whether to grant
Plaintiff leave to amend the Second Amended Complaint
but finds that further amendment would be futile given
these numerous deficiencies. See Cuoco, 222 F.3d at 112.
Accordingly, the Second Amended Complaint is dismissed
with prejudice and without leave to amend.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS the Clerk to STRIKE Dkt. Nos. 14-17 pursuant to
this Court's prior Order, Dkt. No. 19, and the Court further
ORDERS that the Report-Recommendation, Dkt. No. 13,
and Plaintiff's objections to the Report-Recommendation,
Dkt. Nos. 24 and 26, are DENIED as moot in light of
Plaintiff's subsequent filing of a Second Amended Complaint;
and the Court further
ORDERS that Plaintiff's motion for reconsideration, Dkt.
No. 27, is DENIED as procedurally improper; and the Court
further
ORDERS that Plaintiff's Second Amended Complaint, Dkt.
No. 25, is DISMISSED with prejudice and without leave
to amend; and the Court further
ORDERS that the Clerk shall close this case; and the Court
further
ORDERS that the Clerk serve a copy of this Order on all
parties in accordance with the Local Rules.
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IT IS SO ORDERED. All Citations
Slip Copy, 2025 WL 3171001
Footnotes
1 Plaintiff sought leave to proceed IFP on two previous occasions—June 6, 2025, and June 16, 2025. Dkt. Nos.
2, 6. This Court denied both IFP applications as incomplete. Dkt. Nos. 4, 8.
2 Plaintiff also refers to a “Jack Rinaldi” in numerous filings, see, e.g., Dkt. No. 25 ¶ 50, and the Court presumes
this is the same individual.
3 It appears Plaintiff intended to file a motion for reconsideration in state court, as the case caption reads “The
People of the State of New York v. Aaron M. McNeil,” and the motion is addressed to Tompkins County Court.
See Dkt. No. 27 at 1. Even assuming arguendo that the motion for reconsideration is properly before this
Court, the Report-Recommendation submitted by Magistrate Judge Katz is not binding, and thus, not subject
to a motion for reconsideration. See Dunn v. Deutsche Bank Nat. Tr., No. 15-cv-809, 2015 WL 5650182, at
*1 (N.D.N.Y. Sept. 24, 2015).
4 The Court does not review the Report-Recommendation assessing the sufficiency of the allegations in the
Complaint, given the subsequent filing of a Second Amended Complaint. Dkt. No. 25.
5 The Court notes that Docket Numbers 25, 26, and 27 include a seal or emblem of some sort with the title
“McNeil-Rinaldi Law.” As with Plaintiff, Mr. Rinaldi is not a licensed attorney and may not hold himself out as
one, nor may Plaintiff and Mr. Rinaldi hold themselves out together as engaged in the practice of law. Any
further submissions in this vein may warrant sanctions.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Moye v. City of New York, Not Reported in F.Supp.2d (2012)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 2569085
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Ronald MOYE, Plaintiff,
v.
The CITY OF NEW YORK; Sgt. Nelson Caban,
P.O. Paul Jeselon, P.O. Samuel Fontanez, P.O.
Edward Simonetti, P.O. Matthew Boorman, P.O.
Frank Papa, P.O. Tawaina O'Neal, P.O. Brennan;
P.O. John; and A.D.A. Dustin Chao, Defendants.
No. 11 Civ. 316(PGG).
|
July 3, 2012.
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
*1 Plaintiff Ronald Moye has brought claims against the
City of New York, former New York County Assistant
District Attorney Dustin Chao, and eight members of the New
York City Police Department (“NYPD”) under 42 U.S.C.
§ 1983 and state law. Moye claims that Chao is liable for
damages under Section 1983 and state law for malicious
prosecution, abuse of process, denial of a fair trial, fabrication
of evidence, conspiracy “to inflict an unconstitutional injury,”
and intentional and negligent infliction of emotional distress.
(Am. Cmplt., Second, Third, Fourth, Fifth, Sixth, Seventh,
and Ninth Claims) Chao has moved to dismiss the Amended
Complaint on grounds of absolute immunity. For the reasons
stated below, Chao's motion to dismiss will be granted.
BACKGROUND
For purposes of deciding Defendant Chao's motion to dismiss,
the Court has assumed that the following facts presented in
the Amended Complaint are true.
I. MOYE'S ARREST
On or about March 12, 2002, at approximately 8:00
p.m., NYPD officers Paul Jeselson and Tawaina O'Neal
were stationed on the rooftop of an apartment building
on the south side of West 118th Street near the corner
of Morningside Avenue conducting nighttime narcotics
surveillance. (Am.Cmplt.¶¶ 19, 22) Plaintiff's car was located
on the north side of West 118th Street, near Manhattan
Avenue. (Id. ¶ 21) Officer Jeselson claimed that he observed
Plaintiff “extend his hand from the driver's side window and
hand a small glassine” to another individual—later arrested
—who, in turn, handed it to an unapprehended customer. (Id.
¶ 20) The Defendant officers moved in and arrested Moye in
the vicinity of 352 West 118th Street. (Am.Cmplt.¶¶ 12, 25)
At the time of the arrest, and later at the 28th Precinct, the
officers searched Moye and his car and found United States
currency, both in Moye's possession and inside the vehicle.
(Id. ¶ 27) The Defendant officers unnecessarily grabbed
Moye, pushed him, and placed excessively tight handcuffs on
him (id. ¶ 30), causing him to suffer bruises to and numbness
in his wrists. (Id. ¶ 32)
Moye was indicted on March 22, 2002, for Criminal
Possession of a Controlled Substance in the Third Degree.
(Am. Cmplt. ¶ 35; Schwartz Decl., Ex. A) Plaintiff alleges that
the police officer defendants “conspired [to give] and gave
false testimony and intentionally placed false evidence before
the grand jury.” 1 (Am.Cmplt.¶ 35)
II. MOYE'S FIRST TRIAL
Moye's first trial began on January 14, 2003. (Schwartz Decl.,
Ex. B) A.D.A. Chao introduced photographs at trial which
he claimed showed the position of Plaintiff s car as it was
parked on West 118th Street. (Am.Cmplt.¶ 38) Chao, Officer
Jeselson, and Officer Papa were present when a District
Attorney's office photographer took these photos in June 2002
from the March 12, 2002 observation point. (Id. ¶¶ 41–42,
44) Although the photographs were intended to convey the
vantage point of the officers on the night of the arrest, they did
not replicate the “nighttime conditions.” (Id. ¶ 45) According
to Moye, these photographs nonetheless showed that the
officers could not have seen Plaintiff extend his hand from
the driver's side window and pass a small glassine to another
individual, because the driver's side could not be seen from
the vantage point of the rooftop observation post, even with
binoculars. (Id. ¶¶ 46, 48) At trial, Officer Jeselson admitted
that “he was not able to see the driver's side of the vehicles in
the photographs.” (Id. ¶ 47) Jeselson nonetheless claimed that
he had been able to see Moye's hand “during the nighttime
observation.” (Id. ¶ 39) The first trial ended in a mistrial, with
the jury unable to reach a verdict. (Id. ¶ 49)
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III. MOYE'S SECOND TRIAL
*2 In February 2003, A.D.A. Chao, Officers Brennan
and Jeselson, and D.A's Office photographer Nancy Badger
returned to West 118th Street to take more photographs. (Id.
¶ 53) They repositioned the car on an angle in order to make
it appear that the officers would have been able to see Moye's
hand outside the driver's side window on the night of his
arrest. (Id. ¶¶ 55–60) With the car positioned in this fashion,
Jeselson and Chao instructed Badger to take photographs of
Officer Brennan's hand outside the driver's side window in an
effort to simulate what the officers would have seen that night.
(Id. ¶¶ 60–61) Jeselson and Chao then had Brennan move the
car back to a curbside position “where additional photographs
[were] taken at a wide angle to falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶ 63)
At Moye's second trial, Chao introduced these new
photographs and elicited testimony from Jeselson in which
he used the photographs to support his claim that he was
able to see Moye's hand from the rooftop observation post.
(Id. ¶¶ 66, 74) However, Badger testified that, in taking
the new photographs, “the defendants moved the vehicle
to an angle where the hand could be visible.” Defendants
then returned the vehicle to its curbside position and took
additional photographs that “falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶¶ 81–84)
In summation, Moye's lawyer argued that Jeselson had lied
about his observations from the roof and the positioning of
the car in the photographs introduced by the prosecution.
(Id. ¶ 85) In response, A.D.A. Chao argued that Officer
Jeselson had no opportunity to frame the defendant, because
Chao had been present at the observation post:
“[Defense counsel] spoke about people on that roof.
It's in evidence. Officer Jeselson was on that roof, the
photographer Laura Badger was on the roof, and I was on
that roof. Now, if he is directing something improperly, that
is Officer Jeselson, well, it's in front of me.
“And if he knew he was going to get away with it when
I say that's the opportunity, you know [defense counsel]
talked about a lot of people losing their jobs about perjuring
themselves, about the integrity of Robert Morgenthau's
office. Well, if Officer Jeselson thought he was going to get
away with it—
“[DEFENSE counsel]: Mr. Chao is vouching for his
witness.
“THE COURT: Overruled.
“[ADA] CHAO: If Officer Jeselson thought he was going
to get away with it with me present, all that talk about firing,
that should be me because I'm prosecuting this case, not
Officer Jeselson.
“[DEFENSE counsel]: That's objectionable vouching for
his witness.
“THE COURT: Overruled.
“[DEFENSE counsel]: Your Honor, he is making himself
an unsworn witness for the credibility of his police officer.
*3 “THE COURT: Overruled.
“[ADA] CHAO: Ladies and gentlemen, Mr. Morgenthau
should fire me if Officer Jeselson thinks he is going to be
able to say that in court, lie to you, when the person who
is standing right next to him on that roof is me. Well, that
lies with me.
“So what's the explanation? If there's no motive, no
opportunity for why Ms. Badger remembers it differently.
Well, there's evidence that you heard the officer was on the
roof. Evidence that you heard I was on the roof also. I have
no other answer other than the fact that she is mistaken....
“[DEFENSE counsel]: He is vouching for his witness using
the pronoun I.
“THE COURT: Members of the jury, you can accept his
argument as to what happened on the roof. It's his argument
based upon the evidence as he recalls it.”
People v. Move, 52 A.D.3d 1, 5 (1st Dep't 2008); see also
(Am. Cmplt. ¶¶ 87–92.
Moye was convicted at his second trial and sentenced to four-
and-a-half to nine years' imprisonment. (Am.Cmplt.¶¶ 13–14)
IV. THE CHARGES AGAINST MOYE ARE DISMISSED
On appeal, the First Department vacated the conviction in
a 3–2 decision. People v. Move, 52 A.D.3d 1. The First
Department found that “the prosecutor improperly vouched
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for his witness and interjected his personal integrity and the
veracity of the District Attorney's office into his summation to
support the credibility of Police Office Jeselson.” Id. at 6. The
New York Court of Appeals agreed that Chao had engaged in
impermissible vouching for his witness, affirmed the reversal
of the conviction, and remanded the case to Supreme Court.
People v. Move, 12 N.Y.3d 743, 744 (2009). After remand,
the New York County District Attorney's Office dismissed the
case on October 21, 2009. (Am.Cmplt.¶¶ 16, 37)
DISCUSSION
I. IMMUNITY
Chao argues that the claims against him must be dismissed
because his actions are protected by absolute immunity. 2
Section 1983 “purports to create a damages remedy against
every state official for the violation of any person's federal
constitutional or statutory rights.” Kalina v. Fletcher, 522
U .S. 118, 123 (1997). In order to state a claim under Section
1983, a plaintiff must show that the conduct complained
of was committed by a person or entity acting under color
of state law, and that the conduct deprived a person of
rights, privileges, or immunities secured by the Constitution.
Newton v. City of New York, 566 F.Supp.2d 256, 269–70
(S.D.N.Y.2008) (citing Palmieri v. Lynch, 392 F.3d 73, 78 (2d
Cir.2004)).
“Although section 1983 imposes liability upon every person
who deprives another of a constitutional right under color of
state law, the doctrines of absolute and qualified immunity
shield prosecutors and law enforcement officers from liability
related to their official acts.” Day v. Morgenthau, 909 F.2d
75, 77 (2d Cir.1990). While Section 1983 does not explicitly
provide for such immunity, the Supreme Court and Second
Circuit have ruled that “Congress did not intend § 1983 to
abrogate immunities ‘well grounded in history and reason.’ “
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).
*4 As the Second Circuit has explained:
Such immunities are of two types: absolute and qualified.
Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993). Absolute immunity is
reserved for officials who perform “special functions” and
deserve absolute protection from damages liability. Among
these are prosecutors, and persons working under their
direction, when they function as advocates for the state
in circumstances “intimately associated with the judicial
phase of the criminal process.” Imbler v. Pachtman, 424
U.S. at 430–31. See also Hill v. City of New York, 45 F.3d at
660 (extending absolute prosecutorial immunity to persons
acting under the direction of prosecutors in performing
functions closely tied to the judicial process).
By contrast, only qualified immunity applies to law
enforcement officials, including prosecutors, when they
perform investigative functions. Buckley v. Fitzsimmons,
509 U.S. at 273. (“When a prosecutor performs the
investigative functions normally performed by a detective
or police officer, it is neither appropriate nor justifiable
that, for the same act, immunity should protect the one
and not the other.”) (internal quotation marks and citations
omitted); accord Zahrey v. Coffey, 221 F.3d 342, 349 (2d
Cir.2000).
Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502–03 (2d
Cir.2004).
Absolute immunity extends only so far as necessary to protect
the judicial process. Hill v. City of New York, 45 F.3d 653, 660
(2d Cir.1995). Nonetheless,
[t]he doctrine of absolute prosecutorial immunity creates
a formidable obstacle for a plaintiff seeking to maintain a
civil rights action against a district attorney, as it provides
that “prosecutors are absolutely immune from liability
under § 1983 for their conduct in ‘initiating a prosecution
and in presenting the State's case,’ insofar as that conduct
is ‘intimately associated with the judicial phase of the
criminal process.’ “ Burns v. Reed, 500 U.S. 478, 486, 111
S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler,
424 U.S. at 430–31, 96 S.Ct. at 995).
Pinaud, 52 F.3d at 1147. The Court addresses the parameters
of absolute prosecutorial immunity below.
A. Legal Standard for Absolute Prosecutorial Immunity
A prosecutor who, as here, is sued in his or her individual
capacity, may assert absolute or qualified immunity as
a defense. Courts may grant a Rule 12(b)(6) motion to
dismiss on grounds of absolute immunity where the facts
establishing the defense appear in the complaint. Deronette
v. City of New York, No. 05 CV 5275(SJ), 2007 WL 951925,
at *4 (E.D.N.Y. Mar. 27, 2007) (citing Hill, 45 F.3d at
663) (absolute immunity may be decided on a Rule 12(b)
(6) motion where facts establishing the defense may be
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“gleaned from the complaint”)). Moreover, district courts
are encouraged to determine the applicability of an absolute
immunity defense at the earliest appropriate stage, and
preferably before discovery. 3 Id. (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)); United States v. Colbert, No. 87
Civ. 4789, 1991 WL 183376 at *4 (S.D.N.Y. Sept. 11, 1991).
This approach is appropriate given that “absolute immunity
defeats a suit at the outset, so long as the official's actions
were within the scope of the immunity.” Imbler, 424 U.S. at
419 n. 13. “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.” Buckley, 509 U.S. at 270 (1993) (citing
Burns, 500 U.S. at 486).
*5 Prosecutorial immunity to Section 1983 claims is
grounded in the immunity to tort liability that prosecutors
enjoy under the common law. Flagler v. Trainor, 663 F.3d
543, 546 (2d Cir.2011) That immunity arises from the
“concern that harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his decisions
instead of exercising the independence of judgment required
by his public trust.” Id. (citing Imbler, 424 U.S. at 423).
Immunity protects the proper functioning of the prosecutor's
office by insulating the exercise of prosecutorial discretion.
Kalina, 522 U.S. at 125. Prosecutors are therefore “absolutely
immune from suit only when acting as advocates and when
their conduct involves the exercise of discretion.” Flagler,
663 F.3d at 546 (citing Kalina, 522 U.S. at 127).
The Supreme Court addressed the question of absolute
immunity for prosecutors in Imbler, where it held that
prosecutors are entitled to absolute immunity for damage suits
under Section 1983 for all acts “intimately associated with the
judicial phase of the criminal process,” including “initiating
a prosecution and ... presenting the State's case [at trial].”
Imbler, 424 U.S. at 430.
Later, in Buckley, 509 U.S. at 273, the Supreme Court
considered whether the prosecutor defendants were entitled to
absolute immunity for “investigative” work they performed
well before seeking an indictment, involving an effort to
connect the plaintiff to a bootprint left at a murder scene.
Although the Court rejected the prosecutors' claim for
absolute immunity, the Court cautioned that it had
not retreated ... from the principle
that acts undertaken by a prosecutor
preparing for the initiation of judicial
proceedings or for trial, and which
occur in the course of his role
as an advocate for the State, are
entitled to the protections of absolute
immunity. Those acts must include
the professional evaluation of the
evidence assembled by the police
and appropriate preparation for its
presentation at trial or before a grand
jury after a decision to seek an
indictment has been made.
Buckley, 509 U.S. at 273 (internal citations and quotations
omitted).
Whether a prosecutor has absolute immunity for a particular
act thus “depends principally on the nature of the function
performed, not on the office itself.” Ying Jing Gan v. City of
New York, 996 F.2d 522, 530 (2d Cir.1993). “Such functions
include the decision to bring charges against a defendant,
presenting evidence to a grand jury, and the evaluation of
evidence prior to trial.” Johnson v. City of New York, No. 00
CIV 3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept.
15, 2000) (citing Kalina, 522 U.S. at 126). Furthermore,
this “application of immunity is not limited to the duties a
prosecutor performs in the courtroom.” Dory v. Ryan, 25 F.3d
81, 83 (2d Cir.1994) (citing Buckley, 509 U.S. at 272).
*6 “[A] district attorney is [not only] absolutely immune
from civil liability for initiating a prosecution and presenting
the case at trial,” but also “immune for conduct in preparing
for those functions; for example, evaluating and organizing
evidence for presentation at trial or to a grand jury, or
determining which offenses are to be charged.” Hill, 45
F.3d at 661 (citations omitted). Prosecutorial immunity from
Section 1983 damages liability is broadly defined, covering
“virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Dory, 25 F.3d at
83. The Second Circuit has been “mindful of the Supreme
Court's admonition that ‘the duties of the prosecutor in his
role as advocate for the State involve actions preliminary
to the initiation of a prosecution and actions apart from
the courtroom.... Preparation, both for the initiation of the
criminal process and for a trial, may require the obtaining,
reviewing, and evaluating of evidence.’ “ Barbera v. Smith,
836 F.2d 96, 100 (2d Cir.1987) (quoting Imbler, 424 U.S.
at 431 n. 33); see also Barrett v. United States, 798 F.2d
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565, 571 (2d Cir.1986) (“The absolute immunity accorded
to government prosecutors encompasses not only their
conduct of trials but all of their activities that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation....”)
Because absolute immunity extends broadly to all acts
committed by a prosecutor in his or her role as an advocate, it
protects prosecutors against claims that they conspired to, or
actually presented, fabricated evidence at trial:
absolute immunity protects a prosecutor from § 1983
liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would
even include ... allegedly conspiring to present false
evidence at a criminal trial. The fact that such a conspiracy
is certainly not something that is properly within the role
of a prosecutor is immaterial, because “[t]he immunity
attaches to his function, not to the manner in which he
performed it.” Barrett v. United States, 798 F.2d 565, 573
(2d Cir.1986); see also Daloia v. Rose, 849 F.2d 74, 75
(2d Cir.1988) (per curiam ) (holding ... that prosecutor was
immune from § 1983 liability for knowingly presenting
false testimony). As much as the idea of a prosecutor
conspiring to falsify evidence [is disturbing] ... there is
a greater societal goal in protecting the judicial process
by preventing perpetual suits against prosecutors for the
performance of their duties. See Imbler, 424 U.S. at 426–
428.
Dory, 25 F.3d at 83. 4
Although courts have declined to establish a bright-line
test based on the stage of a criminal proceeding, “absolute
prosecutorial immunity has generally been found in cases
where some type of formal proceeding had been commenced
or was being commenced by the conduct at issue.” Tabor v.
New York City, No. 11 CV 0195 FB, 2012 WL 603561, at
*4 (E.D.N.Y.2012) (citing Barbera v. Smith, 836 F.2d at 99.
In contrast, where formal proceedings have not begun and
the prosecutor is acting in an investigative capacity—such
as by providing the police with legal advice on investigative
techniques—qualified immunity generally applies. Id. While
the Supreme Court has noted that a prosecutor is not
absolutely immune for every action taken after probable
cause has been established, see Buckley, 509 U.S. at 274
n. 5, “the Court's treatment of the issue demonstrates that
the existence of probable cause with respect to a particular
suspect is a significant factor to be used in evaluating the
advocatory nature of prosecutorial conduct.” Cousin v. Small.
325 F.3d 627, 633 (5th Cir.2003); accord Barbera, 836 F.2d
at 99 (noting “that in each of the cases we have reviewed
where absolute immunity was upheld, some type of formal
proceeding had been commenced or was being commenced
by the challenged acts”); see also DiBlasio v. Novello, 344
F.3d 292, 300–01 (2d Cir.2003) ( “In assessing whether
absolute immunity should attach to a prosecutor ... we have
focused on the timing of the conduct at issue....”) Thus, in
interpreting Buckley, the Second Circuit has distinguished
between “preparing for the presentation of an existing case,”
on the one hand, and attempting to “furnish evidence on which
a prosecution could be based,” on the other hand, with only
the former entitling a prosecutor to absolute immunity. Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir.1998).
*7 In assessing a prosecutor's claim of absolute immunity,
the court employs a “functional approach,” see, e.g., Burns,
500 U.S. at 486, which looks to “the nature of the function
performed, not the identity of the actor who performed it.”
Forrester v. White, 484 U.S. 219, 229 (1988); see also Van de
Kamp v. Goldstein, 555 U.S. 335, 335–336 (2009) (“To decide
whether absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of ... ‘functional’
considerations”). The court must inquire whether the actions
in question are part of a prosecutor's traditional function
and whether they are closely associated with the judicial
process. Blouin v. Spitzer, 356 F.3d 348, 357 (2d Cir.2004) (a
court must examine the “nature of the function performed”
in assessing whether absolute immunity will attach.); Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir.1996).
B. Analysis
1. Malicious Prosecution, Abuse of Process
To the extent that the Amended Complaint seeks to hold
Chao liable for initiating the prosecution of Moye, absolute
immunity is clearly applicable. Shmueli v. City of New
York, 424 F.3d 231, 237 (2d Cir.2005) (“[T]he prosecutor
is shielded from liability for damages for commencing and
pursuing the prosecution, regardless of any allegations that
his actions were undertaken with an improper state of mind or
improper motive.”); see also Hill, 45 F.3d at 660–61 (holding
that prosecutors and those working under their direction are
absolutely immune for claims relating to the initiation of a
prosecution and for conduct before a grand jury). Plaintiff s
federal and state law claims alleging malicious prosecution
and abuse of process will therefore be dismissed. 5
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2. Creation of Misleading Photographs, Conspiracy to
Present False Evidence at Trial
Moye alleges that Chao, in preparation for Moye's second
trial, returned to West 118th Street and instructed Nancy
Badger—the District Attorney's office photographer—to take
photographs that inaccurately represented the position of
Moye's car on the night of his arrest. Chao then presented
these photographs at the second trial. (Am.Cmplt.¶¶ 38, 40,
50, 50–54, 66–67) Moye alleges that these photographs gave
the false impression that the police in the observation post
would have been able to see Moye's hand outside the driver's
side window. (Id. ¶ 60) Moye further argues that absolute
immunity does not extend to Chao's role in obtaining these
allegedly misleading photographs, because obtaining such
evidence is “not a traditional prosecutorial function” and was
“done for the purpose of misleading the second jury.” (Pltf.
Opp. Br. at 10–11)
Prosecutors' absolute immunity applies “not just for
presentation of testimony,” however, but also to preparatory
conduct “relating to their advocacy.” Dory, 24 F.3d at 83.
The Supreme Court and the Second Circuit have emphasized
that ‘ “the duties of the prosecutor in his role as advocate
for the State involve actions preliminary to the initiation
of a prosecution and actions apart from the courtroom....
Preparation, both for the initiation of the criminal process
and for a trial, may require the obtaining, reviewing, and
evaluating of evidence.’ “ Barbera, 836 F.2d at 100 (quoting
Imbler, 424 U.S. at 431 n. 33); see also Barrett, 798 F.2d
at 571 (“The absolute immunity accorded to government
prosecutors encompasses not only their conduct of trials
but all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation....”).
*8 Chao obtained the photographs at issue after Moye's first
trial and in preparation for Moye's second trial. Accordingly,
his involvement in obtaining these photographs took place
long after formal criminal proceedings had been commenced.
See Deskovic v. City of Peekskill, Nos. 07–CV–8150 (KMK),
07–CV–9488 (KMK), 2009 WL 2475001, at *10 (S.D.N.Y.
Aug. 13, 2009) (“[i]n assessing how closely connected a
prosecutor's conduct is to the judicial phase of the criminal
process, the timing of the conduct is relevant”) (citing
DiBlasio, 344 F.3d at 300–01).
Furthermore, in directing that these new photographs be
taken, Chao was performing in his role as a prosecutor
preparing for trial: he sought to obtain these visual depictions
of the crime scene in order to strengthen his case. (Am. Cmplt.
¶ 64 (purpose of second set of photographs was “to show
that P.O. Jeselson could see a hand coming out of the car
window on the date of plaintiff s arrest”)). Although Chao
was working with the police, he was acting within his role
“as [an] advocate for the State.” Burns, 500 U.S at 491.
Courts have consistently found absolute immunity applicable
where, as here, a Section 1983 plaintiff is relying on post-
indictment misconduct by a prosecutor aimed at obtaining
additional evidence to support pending charges at trial. See,
e.g., Deskovic, 2009 WL 2475001, at *5, *11, *13 (plaintiff
contended that A.D.A. had, post-indictment, conspired to
procure false scientific evidence that he later introduced at
trial; granting A.D.A.'s motion to dismiss Section 1983 claims
on absolute immunity grounds, because the A.D.A.'s alleged
misconduct took place after indictment during the “judicial
phase of the criminal process”); Bertuglia v. City of New York,
No. 11 Civ. 2141(JGK), 2012 WL 906958, at *21 (S.D.N.Y.
Mar. 19, 2012) (granting motion to dismiss state law claims
against A.D.A. defendant based on post-indictment evidence-
gathering activities; absolute immunity applicable because
“the Complaint does not allege facts that create a plausible
inference that [the prosecutor] was not acting as an advocate
seeking to strengthen her case against an indicted defendant”);
Zahrey v. City of New York, No. 98–4546, 2009 WL 54495, at
*30–*31 (S.D.N.Y. Jan. 7, 2009) (granting absolute immunity
to A.D.A. alleged to have engaged in post-indictment effort
to fabricate evidence); KRL v. Moore, 384 F.3d 1105 (9th
Cir.2004) (granting A.D.A. absolute immunity for alleged
misconduct related to his role in obtaining a post-indictment
search warrant seeking evidence to corroborate pending
charges); Cousin v. Small, 325 F.3d 627, 635 (5th Cir.2003)
(granting absolute immunity to A.D.A. accused of fabricating
evidence post-indictment; “at the time of [A.D.A.] Jordan's ...
conversations with Rowell, in which Jordan allegedly told
Rowell to implicate Cousin falsely in the murder and coached
him on how to testify, Jordan was acting as an advocate rather
than as an investigator. The interview was intended to secure
evidence that would be used in the presentation of the state's
case at the pending trial of an already identified suspect,
not to identify a suspect or establish probable cause. Jordan
therefore is entitled to absolute immunity with respect to this
claim.”); see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006)
(affirming dismissal on absolute immunity grounds of Section
1983 claim brought against Assistant State's Attorney based
on alleged conspiracy to present false evidence at trial); Dory,
25 F.3d at 83 (“absolute immunity protects a prosecutor from
§ 1983 liability for ... allegedly conspiring to present false
evidence at a criminal trial”).
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*9 Because Chao is alleged to have obtained the misleading
photographs post-indictment, in preparation for Moye's
second trial, and in an effort to strengthen his case as the
State's advocate, he is entitled to absolute immunity for this
alleged misconduct.
3. Misconduct at Trial
Moye alleges that Chao elicited false testimony from Officer
Jeselson at trial, that he buttressed Jeselson's false testimony
through introduction of the misleading photographs, and that
he then vouched for the truth of Jeselson's testimony in his
summation.
A prosecutor's presentation of false evidence, or subornation
of perjury at trial, is protected by absolute immunity. Jones
v. King, No. 10 Civ. 0897(PKC), 2011 WL 4484360, at *4
(S.D.N.Y. Sept. 28, 2011) (“The claim that [the prosecutor]
‘conspir[ed] to present false evidence at a criminal trial’ is
barred.... The prosecutor enjoys absolute immunity ‘despite
allegations of his “knowing use of perjured testimony....’ “
”) (citations omitted); Bertuglia, 2012 WL 906958, at *23
(prosecutors are entitled to absolute immunity for allegations
that they “coerced and harassed various witnesses into giving
false testimony”); Urrego v. United States, No. 00 CV
1203(CBA), 2005 WL 1263291, at *2 (E.D.N.Y.2005) (“It
is settled law that when a prosecutor presents evidence to
a grand jury and at trial he is acting as an advocate and
entitled to absolute immunity on claims that the evidence
presented was false.”); Johnson v. Scott, No. CV–91–
1467(CPS), 1993 WL 36131, at *2 (E.D.N.Y. Feb. 5, 1993)
(A.D.A. entitled to absolute immunity related to witness
perjury, because this “concern[ed] ... the presentation of the
State's case against the plaintiff); see Imbler, 424 U.S. at
430–31 (granting prosecutors absolute immunity for their
conduct “in presenting the State's case,” including permitting
a fingerprint expert to give false testimony, suppressing
important evidence, and introducing a misleading artist's
sketch into evidence.).
The analysis does not change because Plaintiff alleges a
conspiracy to commit these acts. Shmueli, 424 F.3d at 237–
38 (“principles [of absolute immunity] are not affected
by allegations that improperly motivated prosecutions were
commenced or continued pursuant to a conspiracy”) (citing
Dory, 25 F.3d at 83); Bernard. 356 F.3d at 503; Hill, 45 F.3d
at 659 n. 2 (when the underlying activity at issue is covered
by absolute immunity, the “plaintiff derives no benefit from
alleging a conspiracy”).
Plaintiff also argues that Chao acted outside his prosecutorial
role when he vouched for Jeselson's testimony during
summation. Because a prosecutor's summation is part of
presenting the State's case, courts agree that a prosecutor's
conduct during summation is protected by absolute immunity.
See Robinson v. Rome, No. 11–CV–1411(NGG)(LB), 2011
WL 1541044, at *3 (E.D.N.Y.2011) (finding A.D.A.s immune
from suit for claims related to, inter alia, an improper
summation); Johnson, 1993 WL 36131, at *2 (granting
absolute immunity to prosecutor where plaintiff alleged that
A.D.A. “express [ed] to the jury her opinion as to the truth of
the testimony of her witnesses during her summation”).
*10 In sum, to the extent that Moye's claims against Chao
are based on his conduct at trial, those claims are covered by
absolute immunity.
* * * *
The Court concludes that Chao has absolute immunity for
all of Moye's claims, whether based on federal or state law,
and whether founded on theories of malicious prosecution,
abuse of process, denial of a fair trial, fabricated evidence,
conspiracy, or intentional or negligent infliction of emotional
distress.
CONCLUSION
Chao's motion to dismiss is GRANTED. The Clerk of the
Court is directed to terminate the motion (Dkt. No. 23).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 2569085
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Footnotes
1 The Amended Complaint does not disclose what false testimony or other false evidence was laid before the
grand jury. Moreover, there is no suggestion that Chao was involved in presenting false testimony or false
evidence to the grand jury.
2 Because Moye sues Defendant Chao in his individual capacity (Am .Cmplt.¶ 9), his claims are not barred
by the Eleventh Amendment. See Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993) (“To
the extent that ... a [Section 1983] claim is asserted against a [state official] in his individual capacity, he
may assert privileges of absolute or qualified immunity but may not assert immunity under the Eleventh
Amendment.”).
3 District courts likewise evaluate the applicability of absolute immunity before assessing whether a plaintiff has
sufficiently alleged a constitutional violation. Pinaud, 52 F.3d at 1148 n. 4 (citing Buckley, 509 U.S. at 261).
4 By contrast, discretionary prosecutorial actions that are not “intimately associated with the judicial phase of
the criminal process” are entitled only to qualified immunity. See Buckley, 509 U.S. at 270–75; Burns, 500
U.S. at 491–95. A prosecutor is “absolutely immune from liability under section 1983 [only] for acts ‘within
the scope of [their] duties in initiating and pursuing a criminal prosecution.’ “ Day, 909 F.2d at 77 (quoting
Imbler, 424 U.S. at 410). Thus, when a prosecutor acts in an investigative or administrative capacity, absolute
immunity is not available. Hill, 45 F.3d at 661. For example, immunity is not available when a prosecutor
releases information or evidence to the media, Buckley, 509 U.S. at 276–78; authorizes or directs the use
of wiretaps, Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984); or performs the functions normally performed
by the police, such as assisting in the execution of a search or seizure. See Buckley, 509 U.S. at 273. The
Supreme Court has also withheld absolute immunity for conduct unrelated to advocacy, such as giving legal
advice, Burns, 500 U.S. at 492–96, or acting as a complaining witness. Kalina, 522 U.S. 118, 129–31; see
also Ying Jing Gan, 996 F.2d at 533 (finding that prosecutor was not entitled to absolute immunity where he
allegedly exposed a witness to retaliation and failed to provide adequate protection for the witness).
5 Absolute immunity is a defense not only to Section 1983 claims but to related state law claims. See Shmueli,
424 F.3d at 238 (dismissing Section 1983 and related state law malicious prosecution claims); Arum v. Miller,
331 F.Supp.2d 99, 112 (E.D.N.Y.2004) (dismissing abuse of process and civil conspiracy claims on grounds
of absolute prosecutorial immunity); Imbler, 424 U.S. at 424 (same principles require conferral of absolute
immunity for damage claims against prosecutors under Section 1983 and state law).
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Rich v. New York, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 992885
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Benjamin Samuel RICH, formerly
known as Samuel Guillaume, Plaintiff,
v.
State of NEW YORK, New York City; New
York City Police Department; New York County;
New York County District Attorney's Office;
Detective Michael Miller, Vincent Corrando, John
Passementi, Cyrus Vance, Jr., Shipla Kalra, David
Nasar, and Does 1–100, Inclusive., Defendants.
21 Civ. 3835 (AT)
|
Signed 03/31/2022
Attorneys and Law Firms
Benjamin Samuel Rich, Staten Island, NY, Pro Se.
Gee Won Cha, Julinda A. Dawkins, New York State Office
of the Attorney General, New York, NY, for Defendant State
of New York.
Andrew B. Spears, New York City Law Department, New
York, NY, for Defendants City New York, Michael Miller,
Vincent Corrando, John Passementi.
Patricia Jean Bailey, New York County District Attorney's
Office, New York, NY, for Defendants Cyrus Vance, Jr.,
David Nasar.
ORDER
ANALISA TORRES, District Judge:
*1 This action arises from a 2016 arrest and prosecution
of Plaintiff pro se, Benjamin Samuel Rich, in New York
County. He brings claims against the State of New York (the
“State”); former New York County District Attorney (“DA”)
Cyrus R. Vance, Jr. and two Assistant District Attorneys
(“ADAs”), Shilpa Kalra and David Nasar, (collectively, the
“DA Defendants”); and the City of New York (the “City”),
the New York City Police Department (the “NYPD”), and
NYPD officers Michael Miller, Vincent Corrando, and John
Passementi (collectively, the “City Defendants”), pursuant to,
inter alia, 42 U.S.C. §§ 1983, 1985, and 1986, the New York
State Constitution, and New York common law. See generally
Compl., ECF No. 1. Before the Court are three motions to
dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, brought by
the State, ECF No. 20, the DA Defendants, ECF No. 22, and
the City Defendants, ECF No. 32.
For the reasons stated below, the State's motion to
dismiss is GRANTED, and Plaintiff's claims against the
State are DISMISSED. The DA Defendants’ motion to
dismiss is GRANTED—Plaintiff's claims against Vance
are DISMISSED; and his claims against Kalra and Nasar
are DISMISSED except for Counts 3 and 4, which are
DISMISSED without prejudice to renewal in an amended
complaint. The City Defendants’ motion to dismiss is
DENIED as to Count 4, and GRANTED in all other respects.
Plaintiff's claims against Passamenti, the NYPD, and the City
are DISMISSED; and his claims against Miller and Corrando
are DISMISSED, except for Count 3, which is DISMISSED
without prejudice to renewal in an amended complaint.
BACKGROUND 1
On January 6, 2016, Plaintiff was at the Highline Ballroom
(“the Highline”), a nightclub in Manhattan, as an invited
guest of Wasief Quahtan, a Highline employee. Compl. ¶ 24.
Quahtan and the club owner began arguing over “Quahtan[’s]
[having brought] Plaintiff to the party.” Id. ¶ 25. Security
staff, and an individual named Avery Jackson, asked Plaintiff
to leave. Id. ¶ 26. Plaintiff alleges that he was “forcibly
escorted” from the club, and that Jackson became “belligerent
and aggressive” towards him. Id. ¶ 27. Shortly thereafter, a
shooting occurred outside the Highline. Id. ¶ 28.
Plaintiff believes that Jackson “ran down the street and
jumped into a black sedan ... at the time the shots were fired.”
Id. ¶ 37. He also states that there were “numerous witnesses”
to the shooting, including a “female 911 caller,” who lived
“next door” to the Highline. Id. ¶ 36. In that 911 call, the
witness said that she had seen a “man jump into a black sedan
speeding down the street” after shots were fired. Id. Based
on this call, Plaintiff believes “it was more likely that it was
[ ] Jackson who fired the shots before jumping into the black
sedan to chase Plaintiff down.” Id. ¶ 37.
*2 The shooting was investigated by Detective Michael
Miller, who interviewed Jackson. Id. ¶¶ 29–30. Jackson told
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Miller that he saw Plaintiff go to a car, “pull out a gun, and
shoot in the direction of the Highline,” and that Jackson “ran
back into the club” when shots were fired. Id. ¶¶ 30, 37.
But, Plaintiff alleges that many of Jackson's representations
to Miller contradicted his initial statements to the NYPD
officers who first responded to the shooting, as well as
other eyewitness accounts. See, e.g., ¶¶ 30–32. For instance,
Plaintiff alleges that Jackson told the responding officers
that Plaintiff was “escorted from the club because he was
intoxicated,” and that Plaintiff then “went to his car, [a Rolls
Royce] removed a firearm ... and fired several shots.” Id. ¶¶
31, 46. But, Jackson told Miller that Plaintiff was “forcibly
ejected from the club” after an altercation with its manager,
that Plaintiff was “belligerent,” and threatened that he had a
gun. Id. ¶ 32. Plaintiff also contends that Jackson's statements
were demonstrably false, because surveillance videos showed
that Jackson “was the aggressor towards Plaintiff,” and that
Plaintiff was “calm, peaceful, and cooperative” when escorted
from the club. Id. ¶¶ 32, 41.
Plaintiff alleges that Miller failed to conduct a thorough
and complete investigation of the shooting, because he did
not interview several witnesses, including the 911 caller. Id.
¶¶ 36–37, 39. Plaintiff also suggests that Miller obtained—
but disregarded—surveillance video from the inside and the
outside of the club that would have corroborated Plaintiff's
version of events. See id. ¶¶ 40–43. Plaintiff also complains
that Officer Vincent Corrando, Miller's supervisor, “approved
all [of the] reports written” in the investigation and “should
have notice[d] or known of all the inconsistencies and
contradictory statements” in Miller's reports. Id. ¶ 95. And,
Plaintiff alleges that Officer John Passementi “authorized
DNA tests,” which revealed that the DNA evidence recovered
at the scene “did not match Plaintiff.” Id. ¶ 96.
On January 9, 2016, Miller obtained a search warrant for
Plaintiff's car, based on what Plaintiff contends were “false,
misleading and/or embellished information” in the underlying
affidavits. Id. ¶ 46. The next day, Jackson picked Plaintiff's
mugshot out of a photo lineup. Id. ¶ 92. Plaintiff appears
to argue that this lineup was unduly suggestive, because
his “mugshot had a lighter background than the other
photographs.” Id. ¶ 92. The same day, Miller obtained a
warrant for Plaintiff's arrest for attempted murder, assault,
and weapons possession, and in February obtained additional
search warrants for Plaintiff's cell phone and laptop, allegedly
based, again, on false and misleading statements provided by
Miller and Jackson. Id. ¶¶ 45, 47. According to Plaintiff, no
“physical evidence [ ] tie[d] him to any part of the shooting,”
id. ¶ 81, and the police did not recover a gun or find gunshot
residue in Plaintiff's car, id. ¶ 91.
On January 22, 2016, a grand jury indicted Plaintiff for
second-degree attempted murder, first-degree assault, and
two counts of criminal possession of a weapon. See id. ¶¶
45, 51. On January 27, 2016, Plaintiff was arrested. Id. ¶ 51.
He was incarcerated until February 18, 2016, when he was
released on bail. Id. ¶ 52.
In November 2016, Plaintiff was taken back into custody on
suspicion of witness tampering, after Jackson allegedly made
a “false[ ]” report to the DA's Office that Plaintiff had tried to
contact him. Id. ¶¶ 53, 103. Plaintiff remained in jail until his
trial, which began in June 2017. Id. ¶¶ 54, 64; see also Trial
Tr. at 1, ECF No. 22-3. 2
On March 26, 2016, ADAs Shilpa Kalra and David Nasar
provided surveillance videos from the Highline to Plaintiff's
counsel. Compl. ¶ 64. Plaintiff alleges, however, that the
relevant video showed only “one (1) camera angle [out]
of 14 camera angles.” Id. He alleges that prosecutors did
not provide videos from the thirteen additional camera
angles until a week after trial commenced, even though
these videos were collected from the Highline eighteen
months earlier. Compl. ¶ 64. The trial court accordingly
granted counsel's request to review the additional videos
before conducting Jackson's cross-examination. Trial Tr. at
3. On direct examination, Jackson testified that he did not
participate in escorting Plaintiff out of the club. Id. at 47–48.
*3 On June 12, 2017, prior to Jackson's cross-examination,
Plaintiff's counsel reported to the trial court that Jackson could
be identified in the additional videos based on his clothing. Id.
at 135. Nasar acknowledged that if Jackson was indeed visible
in the videos, he was “doing a bunch of things contrary to
what he testified about.” Id.; see also id. at 136. The trial court
then determined that Jackson should be questioned, under
oath, outside the jury's presence, about his clothing on the
night in question, and whether he could identify himself on
the videos, among other matters. See id. at 146–50, 152–54.
Jackson was brought in, and warned about perjury. See id. at
154–56. Jackson identified himself on the videos wearing a
jacket and a light-colored shirt. See id. at 156–59. The court
then adjourned the proceedings. See id. at 159. When the
court resumed, Jackson, through counsel, invoked his Fifth
Amendment right against self-incrimination, id. at 176, and
the court declared a mistrial, id. at 186–88.
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Plaintiff's counsel then moved to dismiss the indictment
against Plaintiff on two grounds: first, that it was based
on false testimony, and second, because of prosecutorial
misconduct. Compl. ¶ 100. On October 17, 2017, Kalra
consented to dismissal of the indictment on the first ground,
but opposed the assertion of prosecutorial misconduct.
Dismissal Tr. at 12–13, 15–16. The court dismissed the
indictment, but the presiding judge stated he did not “see any
prosecutorial misconduct.” Id. at 16.
On March 12, 2021, over three years after the indictment
was dismissed, Plaintiff commenced this action. Compl.
Defendants move separately to dismiss the claims against
them. ECF Nos. 20, 22, 32. The Court considers each motion
in turn.
DISCUSSION
I. Legal Standard
A. Rule 12(b)(1)
An action should be dismissed pursuant to Rule 12(b)(1)
where it is apparent that the court lacks subject matter
jurisdiction—that is, the statutory or constitutional power
—to adjudicate it. See Fed. R. Civ. P. 12(b)(1); Thomas v.
Metro. Corr. Ctr., No. 09 Civ. 1769, 2010 WL 2507041, at *1
(S.D.N.Y. June 21, 2010). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). A district court must consider
a challenge to subject matter jurisdiction before addressing
other grounds for dismissal. Rhulen Agency, Inc. v. Ala. Ins.
Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
On a Rule 12(b)(1) motion, the Court must accept all material
factual allegations as true. J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004). It may not, however,
“draw inferences ... favorable to [the] plaintiff[ ]” on such
a motion. Id. And, the Court may consider evidence outside
the pleadings to resolve disputed factual issues relating to
jurisdiction. See id.
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter ... to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plaintiff is not required to provide
“detailed factual allegations” in the complaint, but must assert
“more than labels and conclusions.” Twombly, 550 U.S. at
555. The court must accept the allegations in the complaint
as true and draw all reasonable inferences in favor of the
plaintiff. ATSI Commc'ns, Inc., 493 F.3d at 98. On a Rule
12(b)(6) motion, the court may consider only the complaint,
documents attached to the complaint, matters of which a court
can take judicial notice, or documents that the plaintiff knew
about and relied upon. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002).
Additionally, because Plaintiff proceeds pro se, the Court
is obligated to construe his submissions “liberally and
interpret[ ] [them] to raise the strongest arguments they
suggest.” Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (citation omitted). And, on a motion to dismiss,
the Court may appropriately consider a pro se plaintiff's
opposition papers to “supplement or clarify” the allegations in
their complaint. Sommersett v. City of N.Y., No. 09 Civ. 5916,
2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (citation
omitted).
II. Duplicative and Improper Claims
*4 Count 7 of the complaint asserts a claim under 18 U.S.C.
§ 245 for the deprivation of rights under the color of law.
Compl. ¶¶ 148–51. But, no private right of action exists
under this federal criminal statute, and accordingly, Plaintiff
cannot raise a cognizable claim under it. See Corrado v. State
of N.Y. Univ. Stony Brook Police, No. 15 Civ. 7443, 2016
WL 4179946, at *3 (E.D.N.Y. Aug. 5, 2016). Count 7 is,
accordingly, DISMISSED with prejudice.
Further, the Court finds that Count 9 of the complaint—
fraudulent misrepresentation under § 1983, Compl. ¶¶ 157–
63—is duplicative of Count 4—deprivation of a fair trial
under § 1983, id. ¶¶ 133–37—because both seek redress
for violations of Plaintiff's liberty interests arising from the
alleged “fabrication of evidence by a government officer.” See
Zahrey v. Coffey, 221 F.3d 342, 349–50 (2d Cir. 2000). Count
9 is, accordingly, DISMISSED with prejudice.
Finally, three of Plaintiff's claims—Counts 4, 5, and 6—
include both federal constitutional claims and analogous
state constitutional claims. Compl. ¶¶ 133–47. The New
York State Constitution “provides a private right of action
where remedies are otherwise unavailable at common law or
under § 1983.” Allen v. Antal, 665 F. App'x 9, 13 (2d Cir.
2016). But, where alternative remedies are available under
the federal civil rights statutes, including § 1983, courts must
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dismiss the plaintiff's state constitutional claims. Id. Because
§ 1983 provides a remedy for all of Plaintiff's alleged federal
constitutional violations, any analogous state constitutional
claims are duplicative. Accordingly, the state constitutional
claims pleaded in Counts 4, 5, and 6 are DISMISSED with
prejudice.
III. The State's Motion
The State moves to dismiss the complaint under Rule 12(b)
(1), on the ground that the Eleventh Amendment bars
Plaintiff's claims against it by virtue of sovereign immunity.
State Mem. at 3, ECF No. 21. The Court agrees.
The Eleventh Amendment bars federal courts from exercising
jurisdiction over claims against states. U.S. CONST.
AMEND. XI. This extends to a state sued by its own citizens,
see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72–73 (2000),
and state agencies, see Welch v. Texas Dep't of Highways
& Pub. Transp., 483 U.S. 468, 480 (1987). There are only
limited exceptions to this rule, none of which are applicable
here.
First, a state may waive its Eleventh Amendment defense. See
Coll. Sav. Bank v. Fla. Prepaid Postsec. Educ. Expense Bd.,
527 U.S. 666, 670 (1999). Here, the State has not explicitly
waived its immunity, or consented to be sued. See State Mem.
at 3. And, by filing a motion to dismiss, rather than an answer
to the complaint, the State cannot be said to have taken actions
inconsistent with an assertion of immunity. Cf. Lapides v. Bd.
of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002)
(finding waiver of immunity where state removed action to
federal court, then asserted immunity).
Second, Congress may abrogate the states’ immunity from
suit through statute. Kimel, 528 U.S. at 80. But, Congress
has not done so for claims brought under § 1983, Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), §
1985, see Robinson v. Allstate Ins. Co., 508 F. App'x 7, 9 (2d
Cir. 2013), or § 1986, Medina v. Cuomo, No. 15 Civ. 1283,
2015 WL 13744627, at *6–7 (N.D.N.Y. Nov. 9, 2015). In the
“absence of [the State's] consent,” accordingly, such claims
are “proscribed by the Eleventh Amendment.” Pennhurst St.
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also
Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35,
40 (2d Cir. 1977).
*5 Finally, the Eleventh Amendment does not bar a “suit
against a state official when that suit seeks prospective
injunctive relief.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 73 (1996); see also Ex parte Young, 209 U.S. 123
(1908). But here, Plaintiff seeks only money damages, and
retrospective declaratory and equitable relief. Compl. § IX.
And, Eleventh Amendment immunity shields states from
claims for money damages, Liner v. Hochul, No. 21 Civ.
11116, 2022 WL 826342, at *1 (S.D.N.Y. Mar. 17, 2022),
and “declaratory relief dealing solely with past violations,”
Medina, 2015 WL 13744627, at *7. Although Plaintiff
demands “affirmative relief necessary to eradicate the effects
of Defendants’ unlawful practices,” see Compl. § IX(B), he
does not allege any present violations of his rights, see id. See
Medina, 2015 WL 13744627, at *7 (noting that “declaratory
relief where there is no present violation, is also barred under
the Eleventh Amendment”). Accordingly, this exception does
not preclude the State's immunity defense in this matter.
Where a defendant is found to have sovereign immunity from
suit, the Court is deprived of subject-matter jurisdiction under
Rule 12(b)(1). McGinty v. New York, 251 F.3d 84, 89, 101
(2d Cir. 2001). Accordingly, because the State is immune
from liability on all of Plaintiff's claims under the Eleventh
Amendment, its motion to dismiss is GRANTED. And,
because amendment would be futile, Plaintiff's claims against
the State are DISMISSED with prejudice to renewal. 3
IV. The DA Defendants’ Motion
Plaintiff raises claims against the DA Defendants “in their
individual capacities” 4 arising inter alia under § 1983, §
1985, and § 1986, 5 based on three main factual assertions.
See generally Compl. First, Plaintiff alleges that Kalra and
Nasar wrongfully chose to prosecute him, despite the lack of
physical evidence tying him to the shooting. Compl. ¶ 81.
Second, Plaintiff asserts that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle of
his trial, see id. ¶¶ 75–76, 78. Third, Plaintiff alleges that the
“[p]rosecuting [a]ttorneys” “coached” Jackson to give false
testimony to the grand jury that indicted him. Id. ¶¶ 50–51.
A. Absolute Immunity
*6 The DA Defendants argue that Plaintiff's claims are
barred by absolute and qualified prosecutorial immunity. DA
Defs. Mem. at 10–12, ECF No. 22-1. To the extent Plaintiff's
claims are predicated on his allegations that Kalra and Nasar
wrongfully chose to prosecute him and withheld allegedly
exculpatory evidence, the Court agrees.
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1. Federal Claims
Although § 1983 has no immunities on its face, the Supreme
Court has held that, when Congress initially enacted the
statute, it did not intend to abrogate existing immunities
established at common law. See Imbler v. Pachtman, 424
U.S. 409, 418 (1976). Thus, both absolute and qualified
immunity are applicable defenses to § 1983 claims. See
Bernard v. Cty. of Suffolk, 356 F.3d 495, 502 (2d Cir.
2004). Prosecutors are entitled to “absolute immunity” from
liability when they function as advocates for the state in
circumstances “intimately associated with the judicial phase
of the criminal process.” Imbler, 424 U.S. at 430. But,
prosecutors are entitled only to “qualified immunity” when
they perform “investigative functions” normally undertaken
by a police officer. Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993). Under the doctrine of qualified immunity, an
official is immune from liability “only when in light of clearly
established law and the information the official possesses, it
was objectively reasonable for him to think that his actions
were lawful.” Hill v. City of N.Y., 45 F.3d 653, 663 (2d Cir.
1995).
Courts employ a “functional approach” to determine the
availability of absolute immunity, looking to “the nature of
the function performed, not the identity of the actor who
performed it.” Buckley, 509 U.S. at 269 (citations omitted).
And, although the party claiming absolute immunity bears the
burden of establishing its applicability, see Doe v. Phillips, 81
F.3d 1204, 1209 (2d Cir. 1996), if the court finds that that the
conduct at issue is covered by absolute immunity, then the
actor is shielded from liability for damages no matter “how[ ]
erroneous the act ... and how[ ] injurious ... its consequences.”
Cleavinger v. Saxner, 474 U.S. 193, 199–200 (1985) (citation
omitted); see also Anilao v. Spota, No. 19 Civ. 3949, 2022
WL 697663, at *4 (2d Cir. Mar. 9, 2022).
Plaintiff first alleges that Kalra and Nasar improperly chose
to prosecute him, despite a lack of physical evidence tying
him to the crime. Compl. ¶ 81. But, prosecutors are immune
from suit for decisions regarding “whether and when to
prosecute,” Imbler, 424 U.S. at 430–31 n.32–33, even where
they may prosecute an innocent individual, Schmueli, 424
F.3d at 237–39. Kalra and Nasar are, therefore, entitled to
absolute immunity to the extent Plaintiff's claims are based on
their decision to prosecute him. 6
Second, Plaintiff alleges that Kalra and Nasar intentionally
withheld exculpatory surveillance videos until the middle
of trial, Compl. ¶¶ 75–76, 78. But again, prosecutors are
entitled to absolute immunity for all decisions taken “in
their prosecutorial capacity, including decisions regarding
which evidence should be disclosed to a criminal defendant.”
Newson v. City of N.Y., No. 16 Civ. 6773, 2019 WL
3997466, at *3 (E.D.N.Y. Aug. 23, 2019). This is true
even where information was deliberately withheld, Ying Li
v. City of New York, 246 F. Supp. 3d 578, 640 (E.D.N.Y.
2017), or where such withholding violated the defendant's
constitutional rights, see Warney v. Monroe Cnty., 587 F.3d
113, 125 (2d Cir. 2009). Accordingly, Kalra and Nasar have
absolute immunity to the extent any of Plaintiff's claims are
predicated on a violation under this factual allegation.
*7 Finally, Plaintiff alleges that the “Prosecuting Attorneys”
coached Jackson to give false testimony to the grand jury,
which then formed the basis for his indictment. Compl. ¶¶
50–51. Prosecutors generally only have qualified immunity
for actions taken before there is probable cause to arrest
a defendant, because they are performing an investigative
function, rather than acting as advocates. See Hill, 45 F.3d
at 661; Buckley, 509 U.S. at 273. And, although “knowingly
presenting evidence” to a grand jury is considered the “core
of a prosecutor's role as an advocate,” Bernard, 356 F.3d
at 503, the Second Circuit has distinguished between a
prosecutor's knowing presentation of false evidence to the
grand jury—which is still entitled to absolute immunity
—from a prosecutor's deliberate fabrication of evidence,
Hill, 45 F.3d at 662–63 (finding that where prosecutor
deliberately manufactured evidence to establish probable
cause for plaintiff's arrest, his conduct was investigatory,
regardless of whether, when the evidence was manufactured,
the prosecutor intended to present it to the grand jury). In
Hill, the Second Circuit also established that “when it may not
be gleaned from the complaint whether the conduct objected
to was performed by the prosecutor in an advocacy or an
investigatory role, the availability of qualified immunity from
claims based on such conduct cannot be decided as a matter
of law on a motion to dismiss.” Id. at 663.
As in Hill, Plaintiff alleges that the prosecutors deliberately
participated in the fabrication of false evidence by coaching
a material witness to give perjured testimony to the grand
jury, so that the jury would return an indictment. Compl.
¶¶ 50–51. Allegations that the prosecution falsified evidence
are distinct from allegations that the prosecution merely
presented evidence they knew to be false. Compare Hill,
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45 F.3d at 662–63, with Urrego v. United States, No. 00
Civ. 1203, 2005 WL 1263291, at *2 (E.D.N.Y. May 27,
2005) (prosecutors receive absolute immunity for claims
predicated on “false presentation of evidence to a grand
jury”). And, considering the Court's obligation to liberally
construe Plaintiff's pleadings and afford every reasonable
inference in his favor at this stage, the Court concludes the
DA Defendants have not established that they were acting as
“advocates,” rather than “investigators,” when they engaged
in the challenged conduct. Hill, 45 F.3d at 660 (officials
asserting absolute immunity bear the burden of establishing
it for the action in question). And, accepting the facts in
the complaint as true, the DA Defendants would not be
entitled to even qualified immunity, because it is objectively
unreasonable for them to have knowingly coached a witness
to give false testimony before a grand jury. See Cipolla v.
Cty. of Rensselaer, 129 F. Supp. 2d 436, 456 (N.D.N.Y.
2001) (not “objectively reasonable” to believe presenting or
soliciting perjured testimony did not violate plaintiff's clearly
established rights). Accordingly, to the extent that Counts 3, 4,
5, 6, and 8 are predicated on the claim that the DA Defendants
coached Jackson to give false testimony, they are not entitled
to either absolute or qualified immunity.
2. State Claims
Plaintiff raises state-law claims against the DA Defendants
in Counts 10 and 14 of the complaint. Compl. ¶¶ 164–67,
182–85. As with federal law, under New York law, a district
attorney prosecuting crime is performing a quasi-judicial
function, and, as such, is entitled to absolute immunity.
Arteaga v. State, 72 N.Y.2d 212, 217 n.1 (N.Y. 1988). But,
unlike federal law, prosecutors are absolutely immune for
official acts in both the prosecution and investigation of
criminal charges. See Moore v. Dormin, 173 Misc. 2d 836,
843, (N.Y. Sup. Ct. 1997), aff'd as modified, 252 A.D.2d 421
(N.Y. App. Div. 1998). A prosecutor does not receive absolute
immunity, however, “when knowingly acting in violation of
law.” Id. As with Plaintiff's federal claims, to the extent his
state law claims against the DA Defendants are predicated
on his allegations that they improperly targeted him for
prosecution or deliberately withheld exculpatory evidence,
the DA Defendants are entitled to absolute immunity. But,
construing Plaintiff's third allegation liberally, he essentially
claims that the prosecutors knowingly acted in violation of
the law by suborning perjury. The Court cannot conclude,
therefore, that the DA Defendants are entitled to absolute
immunity as a matter of state law to the extent Counts 10 and
14 rest on this allegation. 7
B. Time Bar
*8 The DA Defendants argue that Plaintiff's claims are
untimely. DA Defs. Mem. at 6–8. With the exception of
Counts 3 (§ 1983 malicious prosecution) and 4 (§ 1983
deprivation of a fair trial), the Court agrees.
1. Federal Claims
Claims arising under §§ 1983 and 1985, when brought in
this district, are governed by New York's three-year statute of
limitations for personal injury actions, N.Y. C.P.L.R. § 214;
Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002)
(citation omitted); Hernandez-Avila v. Averill, 725 F.2d 25, 27
n.3 (2d Cir. 1984). But, claims under § 1986 have a one-year
statute of limitations, see 42 U.S.C. § 1986. Federal courts
are also obligated to apply New York's tolling rules. Bd. of
Regents of Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478,
483 (1980).
On March 20, 2020, then-Governor Andrew Cuomo issued
Executive Order 202.8, which tolled the statute of limitations
in New York in light of the COVID-19 pandemic. 9
N.Y.C.R.R. § 8.202.8. Subsequent orders extended the tolling
period until November 3, 2020. Exec. Order 202.67 (Oct. 4,
2020). Contrary to the DA Defendants’ assertion, see DA
Defs. Mem. at 7–8, other courts in this district have uniformly
concluded that Executive Order 202.8 applies to federal cases
applying New York's statute of limitations, including for §
1983 claims. See, e.g., Lewis v. Westchester Cnty., No. 20 Civ.
9017, 2021 WL 3932626, at *2 n.3 (S.D.N.Y. Sept. 2, 2021). 8
The Court concludes, therefore, that Executive Order 202.8
tolls the statute of limitations for Plaintiff's §§ 1983 and 1985
claims, which apply New York's three-year limitations period
—but not Plaintiff's § 1986 claims, because the applicable
statute of limitations for that claim is found in the federal
statute itself.
Section 1983 claims based on malicious prosecution or
deprivation of a fair trial accrue when the underlying criminal
action against the plaintiff is “favorably” terminated, rather
than at the time of arrest. Sharp v. Cnty. of Putnam, No.
18 Civ. 780, 2019 WL 2250412, at *4 (S.D.N. Y May
24, 2019); Shabazz v. Kailer, 201 F. Supp. 3d 386, 394
(S.D.N.Y. 2016). The dismissal of an indictment constitutes
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the termination of a proceeding. Sharp, 2019 WL 2250412,
at *4–5. Applying these principles, Plaintiff's § 1983 claims
for malicious prosecution (Count 3) and denial of a fair trial
(Count 4) accrued on October 17, 2017, the date the trial
court dismissed the indictment against him. Dismissal Tr. at
5. And, although the statute of limitations would have expired
on October 17, 2020, New York's COVID-19 tolling rule
extended the limitations period until June 2, 2021. 9 Because
Plaintiff commenced this suit on March 12, 2021, Counts 3
and 4 are timely.
*9 By contrast, a § 1983 abuse-of-process claim accrues
when the criminal process is “set in motion—typically
at arrest—against the plaintiff.” Hadid v. City of N.Y.,
No. 15 Civ. 19, 2015 WL 7734098, at *5 (E.D.N.Y.
Nov. 30, 2015), aff'd 730 F. App'x 68 (2d Cir. 2018).
Because Plaintiff was arrested on January 27, 2016, the
relevant statute of limitations for Count 8, § 1983 abuse
of process, expired on January 27, 2019, and COVID-19
tolling provisions are, therefore, inapplicable. Accordingly,
this claim is DISMISSED with prejudice as untimely.
Section 1985(3) conspiracy claims accrue “at the time of
the events that caused the injury.” Panetta v. Cassel, 20
Civ. 2255, 2020 WL 2521533, at *5 (S.D.N.Y. May 18,
2020). The existence of a conspiracy “does not postpone the
accrual of causes of action arising out of the conspirators’
separate wrongs. It is the wrongful act, not the conspiracy,
which is actionable, whether the act is labelled a tort or a
violation of [federal civil rights statutes].” Singleton v. City
of N.Y., 632 F.2d 185, 192 (2d Cir. 1980) (citation omitted).
As discussed, the single allegation that escapes absolute
immunity—and therefore is the only remaining basis for
Plaintiff's claims against the DA Defendants—is that those
defendants suborned perjury in the grand jury proceedings
by coaching Jackson to give false testimony, resulting in
Plaintiff's indictment and arrest. Plaintiff's § 1985(3) claim—
Count 5 of the complaint—accrued no later than January 27,
2016, the date of his arrest—which again, applying a three-
year statute of limitations untouched by COVID-19 tolling
provisions, renders it untimely. Count 5 is, accordingly,
DISMISSED with prejudice.
Similarly, Count 6, Plaintiff's § 1986 conspiracy claim,
accrued when Plaintiff knew, or had reason to know of the
harm or injury. Young v. Lord & Taylor, LLC, 937 F. Supp. 2d
346, 354 (E.D.N.Y. 2013). Plaintiff knew of the injury by his
arrest date. Applying § 1986’s one-year statute of limitations,
any § 1986 claim Plaintiff brought after January 27, 2017,
is untimely. 10 Accordingly, Count 6 is DISMISSED with
prejudice.
2. State Claims
Counts 10 and 14 of the complaint—both state common-
law claims—are also time-barred. “Under New York law,
a plaintiff asserting tort claims against the City or its
employees,” as well as against municipal officials like district
attorneys, “must file a notice of claim within [90] days after
the incident giving rise to the claim and commence the action
within a year and [90] days from the date of the incident.”
Brown v. City of N.Y., No. 18 Civ. 3287, 2020 WL 1819880,
at *7 (S.D.N.Y. Apr. 9, 2020) (citing N.Y. Gen. Mun. Law
§§ 50-e(1)(a), 50-i(1)); see also Gonzalez v. City of N.Y., No.
94 Civ. 7377, 1996 WL 227824, *2 (S.D.N.Y. May 3, 1996).
Plaintiff asserts that he filed the requisite notice of claim with
the City on January 16, 2018—720 days after his arrest, and
91 days after the dismissal of the indictment. Compl. ¶ 16.
Plaintiff did not commence this action until March 12, 2021.
See Compl. Therefore, Plaintiff neither timely filed a notice of
claim within 90 days, nor did he commence this lawsuit within
a year and 90 days after the date the indictment was dismissed
—the last date that could possibly serve as the trigger for the
statute of limitations. Failure to comply with the mandatory
notice of claim requirements is a basis for dismissal of a
plaintiff's claims. Warner v. Vill. of Goshen Police Dep't, 256
F. Supp. 2d 171, 175 (S.D.N.Y. 2003). The Court, accordingly,
concludes that Counts 10 and 14 are also time-barred, and
therefore, these claims are DISMISSED with prejudice.
C. Personal Involvement
*10 Liability under § 1983 must be premised on a
defendant's direct, personal involvement in the alleged
violations. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020). A defendant cannot be held vicariously liable
under § 1983 for employing or supervising an employee
that violated the plaintiff's rights—rather, a plaintiff must
plead “that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
As to Vance, Plaintiff only alleges that he served as the DA
of New York County. Compl. ¶ 11. Vance may not be held
liable for merely employing or supervising Kalra and Nasar.
See Iqbal, 556 U.S. at 676. And, Plaintiff neither pleads that
Vance was personally involved in investigating the shooting
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or prosecuting him, nor is there any evidence in the record to
support such a finding. Accordingly, Plaintiff's claims against
Vance are DISMISSED with prejudice, because given the lack
of evidence of Vance's personal involvement, the Court finds
that granting leave to amend would be futile. Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011).
Plaintiff similarly fails to specify Kalra and Nasar's personal
involvement in his claimed constitutional violations, stating
only that the “Prosecuting Attorneys” coached Jackson to
provide testimony. Compl. ¶ 50. But, given Plaintiff's position
as a pro se litigant, the Court recognizes that there may be
additional information made available to Plaintiff through
discovery that would enable Plaintiff to assert claims directly
against Kalra and Nasar, such as if, for example, either
of them prepared Jackson to testify. By April 15, 2022,
accordingly, the DA Defendants shall, through counsel,
inform Plaintiff and the Court whether Kalra or Nasar
prepared Jackson to testify before the grand jury with respect
to any potential criminal charges against Plaintiff, and/or
conducted an examination of Jackson before the grand jury.
No later than May 16, 2022, Plaintiff shall file an amended
complaint, alleging with specificity Kalra and Nasar's direct,
personal involvement in either “coaching” Jackson to testify
falsely before the grand jury, or deliberately eliciting false
testimony from Jackson during the grand jury proceedings.
In addition, because, as detailed infra at 25–26, the Court
finds that Plaintiff's malicious prosecution claim is deficient
because he failed to allege that the underlying criminal
proceedings terminated in his favor, an argument raised by
the City Defendants but not the DA Defendants, any amended
malicious prosecution claim that Plaintiff wishes to assert
against Kalra and Nasar should also address this issue. Failure
to do so shall result in dismissal with prejudice of Plaintiff's
remaining claims against Kalra and Nasar.
V. City's Motion to Dismiss
Plaintiff brings claims against the City Defendants, on the
grounds that (1) Miller failed to conduct a thorough and
complete investigation of the shooting, by not interviewing
several witnesses, including the 911 caller, Compl. ¶¶ 36–37,
39; (2) in his investigation, Miller obtained—but disregarded
—surveillance video from both the inside and outside of
Highline Ballroom, id. ¶¶ 40–43; (3) that Miller “used his own
added facts and embellished statements” in his investigative
reports to target Plaintiff as the sole suspect in the shooting, id.
¶ 44, see also ¶ 39; (4) that Corrando, as Miller's supervisor,
approved his investigative reports but failed to notice the
inconsistencies and contradictions therein, id. ¶ 95; and (5)
that Passamenti “authorized DNA tests,” which revealed that
the DNA evidence recovered at the scene “did not match
Plaintiff,” id. ¶ 96. The Court addresses each remaining 11
cause of action.
A. Time Bar
1. Section 1983 Claims
*11 Plaintiff brings claims under § 1983 for unlawful search
and seizure (Count 1); false arrest (Count 2); malicious
prosecution (Count 3); deprivation of a fair trial (Count 4);
and abuse of process (Count 8). As noted, § 1983 claims are
subject to a three-year statute of limitations in this district. See
supra at 15. And, for the reasons discussed with respect to
the DA Defendants, the Court concludes that Counts 3 and 4
were timely pleaded. See supra at 16–17.
A § 1983 unlawful search and seizure claim, however,
accrues on the date the allegedly unlawful search occurred.
McClanahan v. Kelly, No. 12 Civ. 5326, 2014 WL 1317612, at
*4 (S.D.N.Y. Mar. 31, 2014). Plaintiff alleges that his property
was searched on January 9, February 12, and February 15,
2016. Compl. ¶¶ 46–47. The applicable statute of limitations,
therefore, expired no later than February 15, 2019, nearly
two years before Plaintiff brought suit. Plaintiff's claims
are, therefore, untimely, and Count 1 is DISMISSED with
prejudice as time-barred.
Section 1983 false arrest claims and abuse-of-process claims
accrue from the date of Plaintiff's arrest. See Rivera v. City
of N.Y., No. 16 Civ. 9709, 2019 WL 252019, at *4 (S.D.N.Y.
Jan. 17, 2019) (false arrest); Anderson v. Cnty. of Putnam,
No. 14 Civ. 7162, 2016 WL 297737, at *3 (S.D.N.Y. Jan. 22,
2016) (abuse-of-process). Plaintiff was arrested on January
27, 2016, and therefore, any such claims should have been
brought no later than January 27, 2019. Counts 2 and 8 are,
accordingly, DISMISSED with prejudice as untimely.
2. Sections 1985(3) and 1986 Claims
Liberally construing the complaint, in Count 5, Plaintiff
sets forth a conspiracy cause of action under § 1985(3),
alleging that the City Defendants engaged in a conspiracy to
have Plaintiff wrongfully convicted, see Compl. ¶ 97. This
claim appears predicated on the NYPD investigation into the
January 6, 2016 shooting, and Miller's alleged embellishment
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of information, and focus on Plaintiff as the sole suspect.
Id. ¶¶ 36–37, 39, 46, 90. Plaintiff also raises a failure-to-
intervene claim under § 1986 (Count 6), seemingly arising
from Corrando's alleged failure to notice the inconsistencies
and contradictory statements allegedly included in Miller's
police reports. Id. ¶ 95.
Section 1985(3) claims accrue “at the time of the events that
caused the injury,” and are subject to a three-year statute
of limitations, Panetta, 2020 WL 2521533, at *5. Section
1986 claims based on a failure to intervene accrue when the
defendant fails to intervene, Thomas v. City of Troy, 293 F.
Supp. 3d 282, 303 (N.D.N.Y. 2018), and must be brought
within one year, see 42 U.S.C. § 1986. Plaintiff's claims
each began accruing no later than January 27, 2016, the date
of Plaintiff's arrest, because Plaintiff does not suggest that
any investigation took place after that date. The applicable
limitations period extends no later than January 27, 2019,
for Plaintiff's § 1985(3) claim, and January 27, 2017 for
Plaintiff's § 1986 claim, two and four years, respectively,
before the complaint was filed. Counts 5 and 6 are, therefore,
DISMISSED with prejudice as time-barred.
3. State Claims
To the extent Plaintiff's state common-law claims, asserting
various types of negligence, arise from the NYPD
investigation into the shooting on January 6, 2016; the
searches of Plaintiff's property on January 9, February 12,
and February 15, 2016; and Plaintiff's arrest on January 27,
2016, Plaintiff was required to file a notice of claim within
90 days of those events, see N.Y. Gen. Mun. L. § 50-e. As
noted, Plaintiff did not file a notice of claim with the City
until January 16, 2018—one year and eleven months after
the latest of those dates. Compl. ¶ 16. Accordingly, each of
Plaintiff's negligence claims (Counts 10–14) are DISMISSED
with prejudice. 12
B. Claim Against the City 13
*12 The Court reads Plaintiff's complaint as claiming, under
Monell v. Department of Social Services, 436 U.S. 658,
that the City is liable for the allegedly unlawful conduct
of the named NYPD officers. See Compl. ¶ 179. The City
Defendants argue that Plaintiff does not include sufficient
factual allegations to support a municipal liability claim. City
Defs. Mem. at 20–22, ECF No. 34. The Court agrees.
To bring a municipal liability claim under § 1983, the plaintiff
must “prove the existence of a municipal policy or custom,”
then demonstrate a causal connection between the policy
and the alleged constitutional deprivation. Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). Plaintiff pleads
neither, offering only conclusory allegations that the City
Defendants “engaged in a pattern and practice to commit
the aforementioned unlawful acts,” Compl. ¶ 179, and that
a policy is “inferred” because the City Defendants “took
no steps to reprimand or discharge the officers involved,”
ECF No. 39 at 27. These allegations cannot, without more,
state a claim for municipal liability. E.g., Fleming v. City
of New York, No. 18 Civ. 4866, 2020 WL 5522871, at *6
(S.D.N.Y. July 23, 2020). Because Plaintiff offers no facts
which suggest that the deficiencies in his Monell claim may
be cured by amendment, any such claim is DISMISSED with
prejudice. Strong v. City of Syracuse, No. 16 Civ. 1054, 2020
WL 137250, at *3–4 (N.D.N.Y. Jan. 13, 2020) (dismissing
Monell claim, with prejudice, given “[p]laintiff's conclusory
allegations are insufficient to plausibly infer a custom or
policy to support municipal liability”).
C. Passamenti's Personal Involvement
Plaintiff's remaining claims are Counts 3 (malicious
prosecution) and 4 (denial of a fair trial). As to Defendant
Passamenti, Plaintiff alleges that Passamenti authorized DNA
tests, which revealed that the DNA evidence recovered at the
scene “did not match Plaintiff.” Compl. ¶ 96. Plaintiff does
not allege that Passamenti was involved in falsification of
evidence, that he attempted to hide the results of the relevant
DNA tests, or that he was otherwise responsible for, or even
aware of, the alleged “embellishment” of statements in the
NYPD's investigative reports. Plaintiff has not, therefore,
sufficiently alleged Passamenti's direct, personal involvement
in any constitutional violations under § 1983. Tangreti, 983
F.3d at 618. And, because the record does not establish
that Plaintiff could cure this pleading defect by amendment,
Plaintiff's claims against Passamenti are DISMISSED with
prejudice.
D. Malicious Prosecution
A claim for malicious prosecution under § 1983—Count
3 of the complaint—requires the plaintiff to show that the
criminal proceedings against him were terminated “in his
favor,” typically by an acquittal or another form of dismissal
of the charges on the merits. Janetka v. Dabe, 892 F.2d 187,
189–90 (1989). The City Defendants argue that Plaintiff has
not made such a showing. City Defs. Mem. at 10, 14–17. The
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Court agrees. Plaintiff asserts—citing no authority in support
—that the dismissal of the indictment was a “termination
in his favor” because dismissals that “include constitutional
privilege assertions are considered favorable terminations.”
ECF No. 39 at 7, 10 (quotation marks omitted). It is not clear
what Plaintiff means by this. And, from the Court's review
of the state court transcript, it appears that, in dismissing
the indictment, neither the prosecution, nor the court, made
any statements indicating a belief in Plaintiff's innocence. See
Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018)
(looking to the “reasons ... stated on the record for dismissing
the charges” in determining whether the termination of
the criminal case was in plaintiff's favor). Indeed, Kalra
expressly declined to concede that Plaintiff was innocent,
instead reaffirming her belief that Plaintiff “was the shooter.”
Dismissal Tr. at 15. The presiding judge similarly stated on
the record that dismissal of the indictment was warranted even
though he did not “see any prosecutorial misconduct.” Id. at
16. The dismissal of the indictment, therefore, left open the
question of Plaintiff's guilt or innocence, and Plaintiff cannot,
accordingly, assert on that basis alone, that the proceedings
were terminated in his favor.
*13 The Court notes, however, that because four years
have passed since the dismissal of the indictment, Plaintiff
may be able to plead additional facts from that time that
support this relevant element of his claim. There is no
information before the Court as to whether, for example,
Plaintiff was ever informed by the prosecutors that he had
been cleared of wrongdoing, whether Jackson or anyone
else was later prosecuted for the shooting, or whether the
state court made any further statements regarding the merits
of the charges against Plaintiff. Count 3 is, accordingly,
DISMISSED without prejudice, to provide Plaintiff with an
opportunity to plead additional facts to support this claim.
E. Denial of Fair Trial
To state a claim under § 1983 for denial of a fair trial based on
the fabrication of evidence by a police officer—Count 4 of the
complaint—a plaintiff must allege that “an (1) investigating
official (2) fabricates information (3) that is likely to influence
a jury's verdict, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of life, liberty, or
property as a result.” Garnett v. Undercover Officer C0039,
838 F.3d 265, 277 (2d Cir. 2016) (citation omitted). The
plaintiff need not show a favorable termination indicative
of innocence to state such a claim. Smalls v. Collins, 10
F. 4th 117, 142–43 (2d Cir. 2021). The City Defendants
argue that Plaintiff has failed to show a deprivation of his
liberty interests because there was probable cause for his
prosecution, in the form of corroborative ballistics evidence.
City Defs. Mem. at 16 (citing Dismissal Tr. at 15); City Defs.
Reply at 6–7, ECF No. 46.
Probable cause is not a complete defense to a fair trial claim.
Torres v. City of N.Y., No. 16 Civ. 6719, 2017 WL 4325822, at
*5 (E.D.N.Y. Sept. 27, 2017) (noting that where “independent
probable cause exists for the prosecution,” a plaintiff must
“show that the misconduct caused some deprivation above
and beyond the fact of the prosecution itself.” (citation
omitted)). Plaintiff plausibly alleges that Miller fabricated
and “embellished” Jackson's statements in his investigative
report; that Miller provided these reports to prosecutors to
secure Plaintiff's indictment and arrest; and that Corrando,
as Miller's supervisor, reviewed and approved these reports
without identifying any “embellishments” or obvious factual
contradictions. See Compl. ¶¶ 44–49, 95. On a motion to
dismiss, the Court cannot take as true the City Defendants’
factual assertion that, regardless of any alleged fabrications
in Miller's reports, the prosecution had independent ballistics
evidence to satisfy the probable cause standard. Compare City
Defs. Reply at 6–7, with ECF No. 39 at 9–12. It cannot,
therefore, find as a matter of law, that the City Defendants had
probable cause for Plaintiff's indictment and prosecution. See
Bullard v. City of N.Y., 240 F. Supp. 2d 292, 299 (S.D.N.Y.
2003). The Court concludes, therefore, that Plaintiff has
sufficiently alleged a § 1983 denial of fair trial claim against
Miller and Corrando. The City Defendants’ motion to dismiss
Count 4 of the complaint is, accordingly, DENIED.
CONCLUSION
For the reasons stated above, the State's motion to dismiss,
ECF No. 20, is GRANTED, and Plaintiff's claims against
the State are DISMISSED. The DA Defendants’ motion
to dismiss, ECF No. 22, is GRANTED—Plaintiff's claims
against Vance are DISMISSED; and his claims against Kalra
and Nasar are DISMISSED except for Counts 3 and 4, which
are DISMISSED without prejudice to renewal in an amended
complaint. By April 15, 2022, the DA Defendants shall make
the disclosures directed in this order. The City Defendants’
motion to dismiss is DENIED as to Count 4, and GRANTED
in all other respects. Plaintiff's claims against Passamenti, the
NYPD, and the City are DISMISSED; and his claims against
Miller and Corrando are DISMISSED, except for Count 3,
which is DISMISSED without prejudice to renewal in an
amended complaint.
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*14 By May 16, 2022, Plaintiff shall file an amended
complaint as to Counts 3 and 4, with the additional factual
allegations detailed in this order. The Clerk of Court is
directed to terminate the motions pending at ECF Nos. 20,
22, and 32, and mail a copy of this order to Plaintiff pro se.
The Court shall separately provide Plaintiff with a copy of all
unpublished cases cited herein.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 992885
Footnotes
1 Unless otherwise stated, the following facts are taken from the complaint and assumed, for purposes of this
motion, to be true. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
2 The relevant state court trial transcripts were submitted by the DA Defendants in their motion to dismiss. See
Trial Tr.; Dismissal Tr., ECF No. 22-4. The Court may take judicial notice of these transcripts as a matter of
public record. See Shmueli v. City of N.Y., 424 F.3d 231, 233 (2d Cir. 2005).
3 Because the Court concludes that it lacks jurisdiction over Plaintiff's claims against the State under Rule
12(b)(1), it need not reach the State's alternative ground for dismissal, that Plaintiff's § 1983 and § 1985
claims must be dismissed because the State is not a suable “person” within the meaning of those statutes.
State Mem. at 3–4.
4 Plaintiff makes this clarification for the first time in his opposition papers. ECF No. 28 at 14. The Court notes
that because, as discussed, the Eleventh Amendment bars suits against states, see supra at 8–10, when
a defendant is sued in his official capacity, the court treats the suit as one against the “entity of which an
officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. N.Y.C. Dep't of
Soc. Serves, 436 U.S. 658, 690 n.55 (1978)). And, where a “district attorney or an assistant district attorney
acts as a prosecutor, she is an agent of the State, and therefore immune from suit in her official capacity.”
D'Alessandro v. City of N.Y., 713 F. App'x 1, 8 (2d Cir. 2017). Accordingly, any claims Plaintiff may raise
against the DA Defendants in their “official capacity” would be precluded by immunity under the Eleventh
Amendment. See id.
5 Although Plaintiff asserts that he pleads each of his claims against “all Defendants,” even a liberal read of
the complaint makes clear that certain of Plaintiff's claims cannot implicate the DA Defendants’ conduct,
including counts 1 (unreasonable search and seizure); 2 (false arrest/imprisonment); 11 (personal injury);
12 (property damage) and 13 (negligent hiring, training, supervision, and discipline of officers). Compl. ¶¶
117–27, 168–81. As the Court has already dismissed Counts 7 and 9, see supra at 7–8, it only considers
Counts 3 (malicious prosecution); 4 (deprivation of fair trial); 5 (conspiracy); 6 (failure to intervene); 8 (abuse
of process); 10 (negligent misrepresentation); and 14 (negligent infliction of emotional distress) against the
DA Defendants.
6 Because the Court finds that the DA Defendants are entitled to absolute immunity on any claims arising from
the withholding of exculpatory evidence, the Court does not reach their alternative argument that Plaintiff fails
to state a claim for an alleged Brady violation, see DA Defs. Mem. at 12–15.
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7 As noted, the parallel state-law constitutional claims in Counts 4, 5, and 6 are dismissed with prejudice. See
supra at 8.
8 The DA Defendants’ reliance on Johnson v. Fargione is unavailing. In that case, the court found that the
plaintiff's claims, which had expired weeks before the issuance of Executive Order 202.8, could not “be said
to have been tolled” by that Executive Order, as the time for filing had already passed and the plaintiff had
offered no excuse for the delay. 20 Civ. 764, 2021 WL 1406683, at *3 (N.D.N.Y. Feb. 17, 2021), report and
recommendation adopted 2021 WL 1404554 (Apr. 14, 2021). Although Johnson is instructive with respect
to how claims that may have expired before the issuance of Executive Order 202.8 (i.e., before March 20,
2020) should be treated, it does not address the applicability of the Executive Order to federal claims that,
like Plaintiff's, had not yet expired by that date.
9 Executive Order 202.8 tolled applicable limitations periods from March 20, 2020 to November 3, 2020. The
order amounted to a “pause” in the limitations period—that is, during the duration of the toll, the clock to file
[did] not run,” but “[o]nce the toll end[ed,] the clock resume[d] from where it was when the toll began, and the
plaintiff ha[d] the rest of his limitations period to file his complaint,” Johnston v. City of Syracuse, No. 20 Civ.
1497, 2021 WL 3930703, at *6 (N.D.N.Y. Sept. 2, 2021). Because, as of March 20, 2020, when the clock
was “paused,” Plaintiff had 211 days remaining before the expiration of the limitations period on October 17,
2020, the Court calculates 211 days after November 3, 2020, as the end of the relevant limitations period
when tolled—which is June 2, 2021.
10 Even assuming, arguendo, that Plaintiff would not have had reason to know of the harm or injury that was
the basis of his Section 1986 claim until the date the indictment was dismissed (October 17, 2017), the claim
would still be time-barred, because this would only extend the limitations period to October 17, 2018—nearly
three years before the commencement of this action.
11 As noted, the Court dismissed Count 7 for relying on a statute that does not provide a private right of action,
see supra at 7; Count 9 for being duplicative of Count 4, see id. at 8, and all the state constitutional claims
Plaintiff asserts analogously to his federal constitutional claims, see id.
12 As discussed supra at 18–19, even if the Court construes Plaintiff's notice of claim as timely based on the
dismissal of Plaintiff's criminal case on October 17, 2017, Plaintiff still failed to commence this action within
one year and 90 days, as required by statute. This provides an alternative ground for dismissal.
13 Plaintiff also names the NYPD as a defendant. See Compl. But, the NYPD is a non-suable agency of the
City, and thus, to the extent any of Plaintiff's claims are brought against it, they fail as a matter of law. See
Jenkins v. City of N.Y., 478 F.3d 76, 93 n.19 (2d Cir. 2007). Any such claims are, accordingly, DISMISSED
with prejudice.
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2022 WL 17083088
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael F. SALVANA, M.D., Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
Carl Koenigsmann, M.D., John Morley, M.D.,
David S. Dinello, M.D., Patricia Henderson,
R.N., and Betty M. Parkmond, R.N., Defendants.
5:21-cv-735 (BKS/ML)
|
Signed November 18, 2022
Attorneys and Law Firms
For Plaintiff: Carlo A. C. de Oliveira, Cooper Erving &
Savage LLP, 39 North Pearl Street, 4th Floor, Albany, NY
12207, Richard Condit, Mehri & Skalet, PLLC, 2000 K
Street, NW, Suite 325, Washington, DC 20006.
For Defendants: Letitia James, New York State Attorney
General, Jorge A. Rodriguez, Assistant Attorney General, Of
Counsel, The Capitol, Albany, NY 12224.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 Plaintiff Michael F. Salvana, M.D., a former Clinical
Physician and Facility Health Services Director with the
New York State Department of Corrections and Community
Supervision (“DOCCS”), brought this action against DOCCS
as well as former DOCCS Deputy Commissioner and Chief
Medical Officer Carl Koenigsmann, M.D.; current DOCCS
Deputy Commissioner and Chief Medical Officer John
Morley, M.D.; Regional Medical Director for Elmira and
Oneida “HUBS” David S. Dinello, M.D.; DOCCS Deputy
Superintendent for Health Services Patricia Henderson, R.N.;
and DOCCS Nurse Director Betty M. Parkmond, R.N.
(See generally Dkt. No. 1 (complaint)). On August 10,
2022 the Court issued a ruling on Defendants’ motion to
dismiss the complaint in which it (1) dismissed Plaintiff's
Equal Protection and state-law claims, (2) dismissed
Plaintiff's claims against DOCCS as barred by the Eleventh
Amendment; and (3) dismissed Plaintiff's claims against
Defendants Koenigsmann and Parkmond for lack of personal
involvement. (Dkt. No. 26). Presently before the Court are
Plaintiff's motion for reconsideration of the Court's decision,
(Dkt. No. 33), and Plaintiff's motion for leave to file an
amended complaint, (Dkt. No. 31). Defendants oppose both
motions. (Dkt. No. 36). For the following reasons, Plaintiff's
motion for reconsideration is denied and Plaintiff's motion for
leave to amend the complaint is granted in part and denied in
part.
II. PROCEDURAL AND FACTUAL BACKGROUND
The Court assumes familiarity with the procedural and factual
background of this case, as set forth in its August 10, 2022
decision. (See Dkt. No. 26).
III. MOTION FOR RECONSIDERATION
A. Standard of Review
In general, a motion for reconsideration may only be granted
upon one of three grounds: (1) an intervening change of
controlling law; (2) the availability of new evidence; or (3)
the need to correct a clear error of law or prevent manifest
injustice. United States v. Zhu, 41 F. Supp. 3d 341, 342
(S.D.N.Y. 2014) (citing Virgin Atl. Airways, Ltd. v. Nat'l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); see
also Shannon v. Verizon N.Y., Inc., 519 F. Supp. 2d 304,
307 (N.D.N.Y. 2007). “[A] motion to reconsider should not
be granted where the moving party seeks solely to relitigate
an issue already decided.” Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995). When adjudicating a motion
for reconsideration, a court need not consider arguments that
were raised for the first time in the pending motion. See
Phillips v. City of New York, 775 F.3d 538, 544 (2d Cir. 2015);
Gun Hill Rd. Serv. Station, Inc. v. ExxonMobil Oil Corp., No.
08-cv-7956, 2013 WL 1804493, at *1, 2013 U.S. Dist. LEXIS
63207 (S.D.N.Y. Apr. 18, 2013). Moreover, reconsideration
“will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked—
matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.” Gun Hill Rd. Serv.
Station, 2013 WL 1804493, at *1, 2013 U.S. Dist. LEXIS
63207 (citing Shrader, 70 F.3d at 257). “The standard for
reconsideration is strict and is committed to the discretion
of the court.” SEC v. Wojeski, 752 F. Supp. 2d 220, 223
(N.D.N.Y. 2010), aff'd sub nom. Smith v. SEC, 432 F. App'x
10 (2d Cir. 2011); see also New York v. Parenteau, 382 F.
App'x 49, 50 (2d Cir. 2010) (summary order) (“A motion
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for reconsideration is ‘generally not favored and is properly
granted only upon a showing of exceptional circumstances.’
” (citation omitted)).
B. Analysis
*2 Plaintiff moves for reconsideration of that portion of
the Court's decision dismissing his Equal Protection claim as
duplicative of his First Amendment retaliation claim, arguing
that there is a “need to correct a clear error of law or prevent
manifest injustice.” (Dkt. No. 33-2, at 2–3). Plaintiff argues
that the “cases relied upon by the Court” “do not support
dismissal” of his Equal Protection claim and that dismissal
at this stage would “materially prejudice” him. (Id. at 3).
Defendants respond that Plaintiff has not met his burden
of showing that the Court erred in dismissing his Equal
Protection claim and that his claim fails for failure to allege
facts “indicating that the motivating factor for the purported
adverse actions was anything other than his decision to
speak out and otherwise oppose the [Medications With Abuse
Potential (“MWAP”)] policy.” (Dkt. No. 36, at 8–11).
The Court concludes that Plaintiff's criticisms of the three
cases the Court cited to support dismissal of his Equal
Protection claim as duplicative of his First Amendment
retaliation claim do not warrant reconsideration. 1 First, the
Court cited Best Payphones, Inc. v. Dobrin, in which a
payphone company sued the City of New York and individual
defendants alleging constitutional violations “arising from the
City's regulation of pay phones.” 410 F. Supp. 3d 457, 464–
65 (E.D.N.Y. 2019). The Eastern District noted that “[c]ourts
in the Second Circuit have dismissed equal-protection claims
that merely restate First Amendment retaliation claims”
and dismissed the plaintiff's Equal Protection claim which
was “based on its protected First Amendment activity and
not personal animus against its owner.” Id. at 483–84
(citations omitted). Plaintiff argues that Best Payphones is
distinguishable because the plaintiff there “never asserted
any equal-protection claim based on personal animus,”
see id. at 483, while Plaintiff has. (Dkt. No. 33-2, at
4–5). Plaintiff points to the complaint's allegations that
Defendants were “vindictive” and “intentionally treated
[Plaintiff] differently than other similarly situated doctors
and medical providers.” (Id. (citing Dkt. No. 1, ¶¶ 160–
61)). However, the Court agrees with Defendants that
Plaintiff has not alleged that Defendants’ allegedly vindictive
conduct was “tied to anything other than Plaintiff having
allegedly engaged in [protected] activity.” (Dkt. No. 36,
at 9; see Dkt. No. 26, at 36–37 (noting that Plaintiff's
Equal Protection claim was premised on differential treatment
due to his alleged First Amendment activity)). Plaintiff's
motion for reconsideration likewise asserts that his claim is
“focused on Defendants’ conscious decision to retaliate by
treating him differently from other health care providers”
who objected to the MWAP policy. (Dkt. No. 33-2, at
5 (emphasis added)). The only reasonable reading of the
complaint is that Defendants’ alleged conduct was motivated
by Plaintiff's protected activity. Thus, because his Equal
Protection claim is premised on the same underlying facts as
his First Amendment retaliation claim, it is duplicative. See
Best Payphones, 410 F. Supp. 3d at 484 (dismissing Equal
Protection claim as duplicative where the First Amendment
provided the plaintiff “with an explicit textual source for his
alleged constitutional wrongs” (citing Graham v. Connor, 490
U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989))). 2
*3 Second, Plaintiff argues that Frisenda v. Incorporated
Village of Malverne, 775 F. Supp. 2d 486 (E.D.N.Y. 2011),
does not support dismissal of his Equal Protection claim.
(Dkt. No. 33-2, at 5–6). In Frisenda, a former Lieutenant
in the Malverne Police Department brought, among others,
claims asserting violations of his First and Fourteenth
Amendment rights. 775 F. Supp. 2d at 492. After denying the
defendants’ motion for summary judgment as to the plaintiff's
First Amendment retaliation claim, the court addressed his
Equal Protection claim. Id. at 517. As Plaintiff notes, the court
held that an Equal Protection claim based on a “class of one”
theory could not survive summary judgment because such
claims are unavailable in the public employer context. Id. at
517–18 (citing Engquist v. Or. Dep't of Agric., 553 U.S. 591,
605–07, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008)). This fact,
however, does not warrant reconsideration for at least two
reasons. First, Plaintiff's opposition to the motion to dismiss
made clear that he was asserting a LeClair claim, which is
not the same as the Olech class-of-one Equal Protection claim
that was at issue in Frisenda. (See Dkt. No. 24, at 23; see
also Dkt. No. 26, at 35 & n.14 (noting that Plaintiff asserted
a LeClair claim and that an Olech class-of-one claim “has
no place in the public employment context”)); 3 see also
Hu v. City of New York, 927 F.3d 81, 91–96 (2d Cir. 2019)
(distinguishing between LeClair and Olech claims). Second,
the Court's decision cited a different portion of the Frisenda
court's analysis of the Equal Protection claim which gave
an independent ground for dismissal. (Dkt. No. 26, at 36
(citing Frisenda, 775 F. Supp. 2d at 518)). Specifically, the
court there stated: “[T]o the extent that plaintiff also may
be attempting to assert an equal protection claim based upon
retaliation for First Amendment activity (rather than under
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[an Olech] class-of-one theory), such a claim is completely
duplicative of the First Amendment retaliation claim and,
therefore, should not go forward.” Frisenda, 775 F. Supp.
2d at 518 (emphasis added) (collecting cases). As discussed
above, Plaintiff has not plausibly alleged that any differential
treatment he experienced compared to other individuals who
complained about the MWAP policy was due to anything
other than his First Amendment activity.
The third case the Court cited was Washington v. Afify,
968 F. Supp. 2d 532 (W.D.N.Y. 2013). Plaintiff argues the
Court's reliance on Washington was “misplaced” because
there the court found that the plaintiff had not “identified any
similarly situated individuals who were treated differently”
as required to state an Equal Protection claim, while Plaintiff
has alleged similarly situated comparators. (Dkt. No. 33-2,
at 6 (citing Washington, 968 F. Supp. 2d at 541)). Again,
however, the Washington court gave an additional reason
for dismissing the Equal Protection claim—namely, that the
plaintiff's allegations “suggest[ed] that defendants sought
to retaliate against plaintiff because of his grievances” and
therefore that his allegations were “more properly addressed
in the context of his retaliation claims.” Washington, 968 F.
Supp. 2d at 541 (citations omitted). It was this reasoning the
Court cited, and whether or not Plaintiff plausibly alleged
the existence of comparators was not relevant to the Court's
decision.
Finally, Plaintiff cites to a report and recommendation from
the Western District of Pennsylvania and the order adopting
it. See Zimmerlink v. Zapotosky, No. 10-cv-237, 2011 U.S.
Dist. LEXIS 53186 (W.D. Pa. Apr. 11, 2011), report and
recommendation adopted by 2011 U.S. 53189 (W.D. Pa. May
18, 2011). 4 The report and recommendation determined that
the plaintiff's Olech class-of-one Equal Protection claim was
not duplicative of her First Amendment retaliation claim
because it could be the case that the retaliation claim failed
for lack of causation but that the defendants “nonetheless
intentionally treated Plaintiff differently than others similarly
situated with no rational basis.” Zimmerlink, 2011 U.S. Dist.
LEXIS 53186, at *24. In a cursory order adopting the report
and recommendation, the Western District of Pennsylvania
stated that “whether the only conduct plaintiff can prove
in support of her Equal Protection claim is duplicative of
the activity receiving First Amendment protection is not
an appropriate inquiry at [the motion to dismiss] juncture.”
Zimmerlink, 2011 U.S. Dist. LEXIS 53189, at *2. The
Court need not consider Zimmerlink on Plaintiff's motion
for reconsideration, as it is an out-of-Circuit report and
recommendation which Plaintiff could have cited in his
opposition to the motion to dismiss. In any event, Zimmerlink
is inapposite as it involved an Olech claim—which is
premised on differential treatment with no rational basis—
and not a LeClair claim, which requires consideration of
the defendant's subjective motivation. As discussed above,
Plaintiff has not plausibly alleged Defendants’ improper
subjective motivation in treating him differently separate and
apart from retaliation for protected First Amendment activity.
*4 In sum, none of Plaintiff's attempts at distinguishing Best
Payphones, Frisenda, and Washington is sufficient to show
that the Court made a clear error of law. His motion for
reconsideration is therefore denied.
IV. MOTION FOR LEAVE TO AMEND
A. Standard of Review
In general, leave to amend should be freely given “when
justice so requires.” Fed. R. Civ. P. 15(a)(2). A court may,
however, “deny leave for good reason, including futility,
bad faith, undue delay, or undue prejudice to the opposing
party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 200 (2d Cir. 2007). “Futility is a determination, as a
matter of law, that proposed amendments would fail to cure
prior deficiencies or to state a claim under Rule 12(b)(6)
of the Federal Rules of Civil Procedure.” Panther Partners
Inc. v. Ikanos Commc'ns, Inc., 681 F.3d 114, 119 (2d Cir.
2012) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 50 (2d Cir. 1991)). In making this determination,
the court must “consider ‘the proposed amendment[s] ...
along with the remainder of the complaint,’ accept as true
all non-conclusory factual allegations therein, and draw all
reasonable inferences in plaintiff's favor to determine whether
the allegations plausibly give rise to an entitlement to relief.”
Id. (internal citation omitted).
B. Analysis
Plaintiff seeks leave to file an amended complaint which (1)
maintains his claims against DOCCS and adds a request for
reinstatement to his previous position as Facility Director
of the Walsh Regional Medical Unit, (2) adds allegations
intended to address the personal involvement of Defendant
Parkmond, and (3) includes additional factual allegations to
address certain “concerns raised by the Court” regarding
Plaintiff's First Amendment claim. (Dkt. No. 31, at 2; see Dkt.
No. 31-2 (proposed amended complaint)).
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1. DOCCS
In its decision on Defendants’ motion to dismiss, the
Court held that Plaintiff's Section 1983 claims against
DOCCS were barred by sovereign immunity under the
Eleventh Amendment. (Dkt. No. 26, at 14–15). Plaintiff now
seeks leave to amend the complaint to add a request for
reinstatement to his previous position as Facility Director.
(Dkt. No. 31, at 2). Plaintiff argues that reinstatement is
“prospective injunctive relief that may be ordered against
government employees sued in their official capacities under
the Ex Parte Young exception to the Eleventh Amendment's
sovereign immunity bar.” (Id.). Defendants respond that,
while the Ex parte Young exception allows a claim for
prospective injunctive relief to be brought against individual
state officers sued in their official capacities in certain
circumstances, it has no applicability to claims brought
against DOCCS itself, which remain barred. (Dkt. No. 36, at
11–13). The Court agrees.
Sovereign immunity bars a suit in federal court against a state,
absent the state's consent to suit or congressional abrogation
of immunity. See Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 54–55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
However, under the exception to this rule set forth in Ex
parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
(1908), “a plaintiff may sue a state official acting in his
official capacity—notwithstanding the Eleventh Amendment
—for prospective, injunctive relief from violations of federal
law.” State Emps. Bargaining Agent Coal. v. Rowland, 494
F.3d 71, 95 (2d Cir. 2007) (citation omitted). While this
exception allows a plaintiff to seek prospective injunctive
relief from a state official sued in his or her official capacity
who has authority to effectuate that relief, claims against the
state itself remain barred. Mann v. N.Y. State Ct. of Appeals,
No. 21-cv-49, 2021 WL 5040236, at *5, 2021 U.S. Dist.
LEXIS 209018 (N.D.N.Y. Oct. 29, 2021) (noting that the
exception under Ex parte Young for prospective injunctive
relief “only contemplates action brought against individual
defendants in their official capacities, and ‘has no application
in suits against the States and their agencies, which are
barred regardless of the relief sought’ ” (quoting Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993))). Thus,
Plaintiff's claims against DOCCS itself, regardless of the
relief sought, are barred as a matter of law by sovereign
immunity. Plaintiff's request for leave to amend the complaint
to assert a claim for prospective injunctive relief against
DOCCS is therefore denied as futile.
*5 While the complaint asserted no official capacity claims,
Plaintiff's proposed amended complaint also seeks to assert
claims against Defendants Morley, Dinello, Henderson, and
Parkmond in their official and individual capacities. (Dkt.
No. 31-2, ¶¶ 13–16). Defendants do not address these
proposed amendments. “In determining whether the doctrine
of Ex parte Young avoids an Eleventh Amendment bar to
suit, a court need only conduct a ‘straightforward inquiry
into whether [the] complaint alleges an ongoing violation
of federal law and seeks relief properly characterized as
prospective.” Verizon Maryland, Inc. v. Pub. Serv. Comm'n
of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871
(2002) (citation omitted). While the Second Circuit has held
that “claims for reinstatement to previous employment satisfy
the Ex parte Young exception to the Eleventh Amendment's
sovereign immunity bar” as prospective injunctive relief,
Rowland, 494 F.3d at 96 (collecting cases), it is not clear
that Plaintiff has alleged an ongoing violation of his First
Amendment rights. Compare id. at 96–97 (holding that the
alleged violation of federal rights was “ongoing” where the
plaintiffs were wrongfully terminated and the state failed
to re-hire them or create new positions, because the state's
failure to act was “both (1) ongoing and (2) potentially
curable by prospective relief”), with Blamah v. New York,
No. 19-cv-9234, 2020 WL 1812690, at *5, 2020 U.S.
Dist. LEXIS 62319 (S.D.N.Y. Apr. 8, 2020) (“[A] plaintiff
who merely asserts she has suffered discrete acts of past
discrimination and retaliation by [a] defendant has not
demonstrated an ongoing constitutional violation.” (citation
and internal quotation marks omitted)). However, because
the parties have not addressed this issue, the Court declines
to say as a matter of law that the proposed request for
reinstatement does not fall within the Ex Parte Young
exception to the Eleventh Amendment's bar and is futile.
Plaintiff may therefore amend his complaint to assert claims
against the individual Defendants in their official capacities
and to seek reinstatement.
2. Parkmond
The Court dismissed Plaintiff's First Amendment claim
against Defendant Parkmond for failure to allege her personal
involvement. (Dkt. No. 26, at 34–35 (noting that the
complaint's sole allegation relating to Parkmond was that, in
mid-2019 and as a result of Plaintiff's “continued opposition
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to the MWAP policy,” she “ordered nurses to withhold
assistance from Dr. Salvana for several patients”); see Dkt.
No. 1, ¶ 123). Plaintiff now seeks leave to add factual
allegations detailing Parkmond's personal involvement “in
the retaliatory actions taken against” him. (Dkt. No. 31, at
2). Specifically, the proposed amended complaint alleges
that Parkmond “began to develop animosity” toward Plaintiff
after his “complaint to Defendant Dinello about Defendant
Henderson's decision to cancel his prescribed treatment to his
patients.” (Dkt. No. 31-2, ¶ 130). Parkmond “allowed nurses
that she supervised to act in an insubordinate manner toward
Dr. Salvana, which included treating him with disrespect and
refusing to assist him with patient care.” (Id. ¶ 131). The
proposed amended complaint further alleges that Parkmond,
“with the knowledge and consent of Defendant Henderson,
prohibited nurses from assisting Dr. Salvana on the treatment
of a hemophiliac patient.” (Id. ¶¶ 133, 136). Defendants
argue that Plaintiff's proposed amendments with regard to
Parkmond are insufficient to plausibly allege her personal
involvement because (1) they are conclusory, (2) failure
to properly supervise subordinates is insufficient to plead
personal involvement as a matter of law, and (3) any actions
Parkmond took to enforce the MWAP policy are insufficient
to plead personal involvement because enforcement of the
policy does not constitute an adverse action. (Dkt. No. 36, at
14). 5
The Court concludes that Plaintiff's new allegations with
respect to Parkmond are sufficient to plausibly allege
her personal involvement in the alleged violation of his
First Amendment rights. Taken together, the allegations are
not impermissibly conclusory, and they give an indication
of how Parkmond became aware of Plaintiff's alleged
protected speech. (Cf. Dkt. No. 26, at 34 (noting that
the complaint did not allege “how Parkmond became
‘aware’ of [Plaintiff's] opposition to the MWAP policy”)).
Second, the proposed amendments allege more than simply
failure to properly supervise subordinates, but rather that
Parkmond affirmatively acted in allowing her subordinates to
behave insubordinately toward Plaintiff and “prohibit[ing]”
them from assisting Plaintiff with patient treatment. These
allegations are sufficient to plausibly plead Parkmond's
personal involvement in the alleged constructive discharge
and creation of intolerable working conditions, and do
not seek to hold Parkmond liable solely by virtue of her
supervisory position. Cf. Zielinski v. Annucci, 547 F. Supp. 3d
227, 239 (N.D.N.Y. 2021) (noting that inferring the personal
involvement of a defendant by virtue of his supervisory
position is “precisely the kind of inference about supervisory
officials held impermissible” in Tangreti v. Bachmann, 983
F.3d 609 (2d Cir. 2020)). Finally, the allegations regarding
Parkmond concern the treatment of a hemophiliac patient;
there is nothing to suggest that the treatment of this patient
involved mere enforcement of the MWAP policy.
*6 Accordingly, the Court grants Plaintiff's motion for leave
to amend as it relates to Parkmond.
3. Remaining Proposed Amendments
The remaining proposed amendments, which Defendants do
not address, consist of additional factual allegations which
Plaintiff asserts remedy “concerns raised by the Court” in
relation to Plaintiff's First Amendment claim. (Dkt. No. 31,
at 2; see generally Dkt. No. 31-2). Because the proposed
amendments are simply additional factual allegations relating
to the surviving First Amendment claim, the Court grants
Plaintiff's motion for leave to amend.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff's motion for reconsideration (Dkt.
No. 33) is DENIED; and it is further
ORDERED that Plaintiff's motion for leave to file an
amended complaint (Dkt. No. 31) is DENIED to the extent it
seeks to assert any claim against DOCCS; and it is further
ORDERED that Plaintiff's motion for leave to file an
amended complaint is otherwise GRANTED; and it is further
ORDERED that Plaintiff is directed to file the proposed
amended complaint, in conformance with the above, by
November 28, 2022.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 17083088
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Footnotes
1 Furthermore, Plaintiff has not pointed to “controlling decisions or data that the court overlooked.” Gun Hill Rd.
Serv. Station, 2013 WL 1804493, at *1, 2013 U.S. Dist. LEXIS 63207. As the Court pointed out in its decision
on Defendants’ motion to dismiss, the cases Plaintiff relied on to argue that his First Amendment and Equal
Protection claims were not duplicative “did not involve First Amendment and Equal Protection claims.” (Dkt.
No. 26, at 37 (noting that the relevant cases instead involved state-law tort claims)). Even in his motion for
reconsideration, Plaintiff still has not cited a supportive, on-point case regarding whether a First Amendment
retaliation claim and a LeClair selective enforcement Equal Protection claim are duplicative.
2 Stated differently, Plaintiff has not plausibly alleged that the alleged selective treatment was motivated by
personal animus unconnected from his alleged protected activity. The Court also notes that the complaint's
allegation that there was “no rational basis for the treatment Plaintiff received,” (Dkt. No. 1, ¶ 162), would only
be relevant to a class-of-one claim brought pursuant to Village of Willowbrook v. Olech, 528 U.S. 562, 120
S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Here, however, Plaintiff has asserted a selective enforcement Equal
Protection claim pursuant to LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980).
3 The Court never held that a public employee could not assert a LeClair selective enforcement claim.
4 No Westlaw cite is available.
5 Plaintiff does not offer any legal analysis of the sufficiency of the proposed amendments.
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