Hamza et al v. Kotsidis et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
H.E. AMIR M. HAMZA; and FRANCIS
ARTHUR YAKEL,
Plaintiffs,
1:25-CV-0968
v. 	(ECC/ML)
ATHANASIOS DIMADIS KOTSIDIS;
MAROULA KOTSIDOU; VILLAGE OF
PHILMONT; CHIEF VERNON DOYLE;
JASON DETZEL; BOB MACFARLANE;
U-HAUL, INC.; NEW YORK DEP’T OF
ENVTL. CONSERVATION; PHILIP
TKACY; DOUGLAS CROPPER; CARLA
INGERSOLL; MORGAN KLIMA;
HUDSON RENTALS & GARDEN
DESIGN; NEW YORK STATE POLICE;
and TROOPER MIGUEL RODRIGUEZ,
Defendants.
_____________________________________________
H.E. AMIR M. HAMZA,
Plaintiff,
1:25-CV-1429
v. 	(ECC/ML)
CHRIS LIBERATI-CONTANT; ZECHARIAH
DAVIDSON-CUNNINGHAM, in his
individual capacity; ATHANASIOS DIMADIS
KOTSIDIS, in his individual capacity, also
known as Thanos; and MAROULA KOTSIDOU,
in her individual capacity also known as Marou,
Defendants.
_____________________________________________
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H.E. AMIR M. HAMZA,
Plaintiff,
1:25-CV-1506
v. 	(ECC/ML)
ATHANASIOS DIMADIS KOTSIDIS also
known as Thanos Dimadis; MAROULA
KOTSIDOU; THE GOVERNMENT OF
THE HELLENIC REPUBLIC, (Greece);
ASSOCIATION OF FOREIGN PRESS
CORRESPONDENTS IN THE USA, INC.,
(AFPC-USA); THE GEORGE WASHINGTON
UNIVERSITY GRADUATE SCHOOL OF
POLITICAL MANAGEMENT, (GSPM); and
THE UNITED STATES DEPARTMENT OF
STATE,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
H.E. AMIR M. HAMZA
Plaintiff, Pro Se
16 Elm Street
Philmont, New York 12075
FRANCIS ARTHUR YAKEL
Plaintiff, Pro Se
Post Office Box 281
Philmont, New York 12565
MIROSLAV LOVRIC, United States Magistrate Judge
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ORDER and REPORT-RECOMMENDATION
The Clerk has sent pro se pleadings in the above captioned actions1 together with
applications to proceed in forma pauperis, filed by H.E. Amir M. Hamza and Francis Arthur
Yakel (collectively “Plaintiffs”) to this Court for review. For the reasons discussed below, I (1)
grant Plaintiffs’ in forma pauperis applications, and (2) recommend that Plaintiffs’ pleadings be
dismissed in their entirety.
1 	Hamza, et al. v. Kotsidis, et al., 1:25-CV-0968 (ECC/ML) (“Hamza I”); Hamza v.
Liberati-Conant, et al., 1:25-CV-1429 (ECC/ML) (“Hamza II”); and Hamza v. Kotsidis, et al.,
1:25-CV-1506 (ECC/ML) (“Hamza III”).
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TABLE OF CONTENTS
I. 	BACKGROUND .................................................................................................................... 1
A. 	Hamza I Second Amended Complaint ............................................................................ 1
B. 	Hamza II Complaint ....................................................................................................... 17
C. 	Hamza III Complaint ...................................................................................................... 18
II. 	PLAINTIFFS’ APPLICATIONS TO PROCEED IN FORMA PAUPERIS ............. 20
III. 	GOVERNING LEGAL STANDARDS ......................................................................... 23
A. 	Legal Standard for Initial Review of the Complaint ................................................... 23
B. 	Legal Standard Governing Consolidation .................................................................... 25
IV. 	ANALYSIS ...................................................................................................................... 25
A. 	Consolidation ................................................................................................................... 26
B. 	Hamza I ............................................................................................................................ 26
1. 	Failure to Comply with Fed. R. Civ. P. 8(a) ............................................................. 26
2. 	Plaintiffs’ Claims are Frivolous ................................................................................. 26
3. 	Claims Pursuant to 42 U.S.C. § 1983 ........................................................................ 27
4. 	Claims Pursuant to 42 U.S.C. § 1985 ........................................................................ 60
5. 	State Law Claims ........................................................................................................ 61
C. 	Hamza II........................................................................................................................... 62
1. 	Plaintiff Hamza’s Claims Are Frivolous ................................................................... 62
2. 	Claims Pursuant to 42 U.S.C. § 1983 ........................................................................ 63
3. 	Claims Pursuant to 42 U.S.C. § 1985 .......................................................................... 70
D. 	Hamza III ......................................................................................................................... 70
1. 	Plaintiff Hamza’s Claims Are Frivolous ................................................................... 70
2. 	Claims Pursuant to 42 U.S.C. § 1983 ........................................................................ 71
3. 	Claims Pursuant to 42 U.S.C. § 1985 ........................................................................ 72
4. 	State Law Claims ........................................................................................................ 72
V. 	OPPORTUNITY TO AMEND ...................................................................................... 73
VI. 	PLAINTIFF HAMZA’S MOTIONS IN HAMZA III FOR A PRESERVATION
ORDER, EXPEDITED DISCOVERY, AND A COURT CONFERENCE ........................... 76
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I. 	BACKGROUND
A. 	Hamza I Second Amended Complaint2
Construed as liberally3 as possible, the Second Amended Complaint in Hamza I alleges
that Plaintiffs’ constitutional rights were violated by defendants Athanasios Dimadis Kotsidis,
Maroula Kotsidou,4 Village of Philmont, Chief Vernon Doyle, Jason Detzel, Bob Macfarlane, U-
Haul, Inc., New York Department of Environmental Conservation, Philip Tkacy, Douglas
Cropper, Carla Ingersoll, Morgan Klima, Hudson Rentals and Garden Design, Trooper Miguel
Rodriguez, and New York State Police (collectively “Defendants”). (See generally Hamza I,
Dkt. No. 50.)
The Second Amended Complaint consists of 154-pages of rambling allegations that
appear to all relate in some capacity to a neighborly dispute between Plaintiffs—who own 16
Elm Street, Philmont, New York—and Defendants Kotsidis and Kotsidou—who own 14 Elm
Street, Philmont, New York.5 (See generally Hamza I, Dkt. No. 50.)
2 	The filing of an amended complaint moots the original pleading. 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.”) As a result, the
Court has not considered Plaintiffs’ original Complaint (Hamza I, Dkt. No. 1) or amended
complaint (Hamza I, Dkt. No. 40).
3 	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)).
4 	The Clerk of the Court is directed to update the docket to reflect that the correct spelling
of Defendant Kotsidou’s first name is “Maroula.” (Hamza I, Dkt. No. 12; Hamza I, Dkt. No. 40
at 1; Hamza I, Dkt. No. 50 at 1.)
5 	Defendant Anthanasios Kotsidis filed an action in New York State Court against
Plaintiffs that asserts the following three claims: (1) a claim of trespass, (2) a claim of nuisance,
and (3) a claim of negligence. Kotsidis v. Hamza, New York State Supreme Court Columbia
County, E012025024455.
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The Second Amended Complaint alleges that Plaintiff Hamza sought to become a
volunteer firefighter with the Village of Philmont Volunteer Fire Department but his application
was rejected by Defendant Village of Philmont’s Trustees, and Defendant Detzel informed him
that it was rejected because the Trustees perceived Plaintiff Hamza as a “rabble rouser.” (Hamza
I, Dkt. No. 50 at 21.) The Second Amended Complaint alleges that the rejection of Plaintiff
Hamza’s volunteer firefighter application was in retaliation for Plaintiff Hamza’s engagement in
protected speech and was based in whole or in part on his sexual orientation. (Id. at 21-23.)
The Second Amended Complaint alleges that in 2020, Defendant Village of Philmont
selectively cited Plaintiffs for having two unregistered vehicles on their private property while
the Department of Motor Vehicles was closed and expirations were temporarily extended due to
the COVID-19 shutdown. (Hamza I, Dkt. No. 50 at 24-27.)
Plaintiffs allege that in the summer of 2022, Plaintiff Hamza observed Defendant
Cropper filming Plaintiff Hamza’s minor son and another child riding quad bikes in the Canal
Street lot. (Id. at 27.) Plaintiffs allege that Plaintiff Hamza confronted Defendant Cropper about
recording minors without parental consent and since the confrontation, Plaintiffs have
documented instances of vehicles associated with Defendants Detzel, Macfarlane, and Cropper
lingering on or near Elm Street. (Id. at 27-28.)
Plaintiffs allege that Defendants Kotsidis and Kotsidou used their close relationship with
Defendant Cropper to initiate or escalate municipal action against Plaintiffs. (Hamza I, Dkt. No.
50 at 29.) Plaintiffs allege that, for example, on July 9, 2025, they observed Defendant
Cropper’s vehicle pass by on Elm Street two times “without any apparent municipal purpose or
prior precedent.” (Id.) Plaintiffs allege that this constituted “targeted surveillance and retaliation
for [their] protected speech and petitioning activity.” (Id. at 30.)
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Plaintiffs allege that in summer 2024, Defendants Kotsidis and Kotsidou placed bicycles
in the traveled portion of Elm Street directly in front of their property, which obstructed travel.
(Hamza I, Dkt. No. 50 at 32.) Plaintiffs allege that they summoned Defendant Tkacy and Officer
Zobel of the Philmont Police Department regarding the bicycles in the road but that no action
was taken to remove the bicycles or enforce the law against Defendants Kotsidis and Kotsidou.
(Id. at 42.) The Second Amended Complaint alleges that “[e]ventually Trooper TORCHIA”
instructed Defendants to remove the bicycles from the roadway. (Id. at 43.)
The Second Amended Complaint alleges that Defendant Kotsidis and Kotsidou instigated
confrontations with Plaintiffs regarding on-street parking on Elm Street. (Hamza I, Dkt. No. 50
at 33-35.) Plaintiffs allege that on July 16, 2024, Defendants Kotsidis and Kotsidou positioned
bicycles surrounding Plaintiff Hamza’s legally parked truck, which effectively immobilized the
truck. (Id. at 43.) The Second Amended Complaint alleges that Trooper Torchia removed the
bicycles from around Plaintiff Hamza’s vehicle and inquired why Plaintiffs had not removed the
bicycles themselves. (Id.)
Plaintiffs allege that on July 16, 2024, Defendant Kotsidou lodged an environmental
complaint with Trooper Torchia regarding oil that leaked from Plaintiff Hamza’s truck. (Hamza
I, Dkt. No. 50 at 44.)
The Second Amended Complaint alleges that during summer 2025, third party Howard
Higgley and his family came to Plaintiffs’ residence to view a vehicle that Plaintiffs were selling.
(Hamza I, Dkt. No. 50 at 36.) Plaintiffs allege that Defendants Kotsidis and Kotsidou blew a car
horn and accused Plaintiffs and the Higgley family of loitering and trespassing. (Id.) Plaintiffs
allege that the Higgley family then left without purchasing the vehicle, which terminated the
business opportunity for Plaintiffs. (Id.)
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Plaintiffs allege that Defendants posted derogatory commentary about Plaintiffs to the
Philmont Community Board on Facebook. (Hamza I, Dkt. No. 50 at 40.)
Plaintiffs allege that Defendants Kotsidis and Kotsidou harassed other neighbors, Shawn
and Jaime Lauragne. (Hamza I, Dkt. No. 50 at 44-47.)
The Second Amended Complaint alleges that on June 27, 2025, Plaintiffs were
approached by Defendant Tkacy, who informed them that two of their three vehicles had
suspended registrations based on the review of an automated license plate reader. (Hamza I, Dkt.
No. 50 at 47.) Plaintiffs allege that they presented updated insurance information to Defendant
Tkacy but that he stated he “did not care” and threatened to tow the vehicles. (Id.) The Second
Amended Complaint alleges that Defendant Tkacy directed Plaintiffs to move the vehicles to the
Family Dollar parking lot and instructed Plaintiffs not to tell Defendant Doyle about the
conversation because Defendant Doyle “demanded the vehicles be removed that night.” (Hamza
I, Dkt. No. 50 at 48.) Plaintiffs allege that they had consumed alcohol that night and could not
legally or safely move the vehicles. (Id.) Plaintiffs allege that they felt specifically targeted by
Defendants Village of Philmont and that Defendant Tkacy “admitted that the enforcement action
was initiated only after complaints were made by Defendants [Kotsidis and Kotsidou], even
though the vehicles were legally parked.” (Id. at 49.) Plaintiffs allege that the actions of
employees of Defendant Village of Philmont were motivated by discriminatory animus against
Plaintiffs based on their sexual orientation and national origin. (Dkt. No. 50 at 50.) Plaintiffs
allege that Defendants Kotsidis and Kotsidou engaged in a municipal conspiracy with Defendant
Village of Philmont in retaliation against Plaintiffs. (Id. at 52.)
Plaintiffs allege that Plaintiff Hamza and Defendant Detzel “engaged [in a] heated
conversation by email regarding Plaintiff H[amza]’s DD 214,” which resulted in Defendant
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Detzel defaming Plaintiff Hamza in front of Defendants Macfarlane, Tkacy, and Doyle. (Hamza
I, Dkt. No. 50 at 52.)
The Second Amended Complaint alleges that on June 2, 2025, Plaintiffs proposed a
written cross-easement/shared driveway solution for their property and the property owned by
Defendants Kotsidis and Kotsidou. (Hamza I, Dkt. No. 50 at 56.) Plaintiffs allege that
Defendants Kotsidis and Kotsidou rejected the proposal. (Id. at 57.) Plaintiffs allege that
Plaintiff Hamza owns a motorcycle that became landlocked in the back yard. (Id. at 58.)
Plaintiffs allege that they had an easement to their backyard through 11 Elm Street, which is
owned by a third-party, but a fence was installed preventing Plaintiffs from accessing their
backyard. (Id.) Plaintiffs allege that they obtained donated fill from the Town of Claverack to
create a driveway/ramp on their property to access the landlocked motorcycle and help manage
drainage. (Id. at 60.)
The Second Amended Complaint alleges that Defendant Kotsidis falsely alleged that
Plaintiff Hamza colluded with the Town of Claverack to intentionally damage his fence and
structurally weaken it. (Hamza I, Dkt. No. 50 at 60.) Plaintiffs allege that Defendant Kotsidis
also falsely accused Plaintiff Hamza of throwing rocks at his fence. (Id. at 61.) Plaintiffs allege
that Defendants Kotsidis and Kotsidou blocked access to the ramp area that Plaintiff Hamza was
building which impeded additional deliveries of donated fill. (Id. at 61-62.)
Plaintiffs allege that Defendants Kotsidis and Kotsidou accused Plaintiff Hamza of
hitting their rented U-Haul with his trailer but that the claim was unfounded. (Hamza I, Dkt. No.
50 at 64.)
The Second Amended Complaint alleges that on August 24, 2025, Plaintiff Hamza was
attempting to level the ground on the side of his house. (Hamza I, Dkt. No. 50 at 65-66.)
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Plaintiffs allege that at approximately 6:00 p.m., Defendant Kotsidou recorded Plaintiff Hamza
“without justification.” (Id. at 66.) Plaintiffs allege that Plaintiff Hamza asked Defendant
Kotsidou to stop recording and used a piece of plywood to shield himself. (Id.) The Second
Amended Complaint alleges that Defendant Kotsidou called authorities and falsely alleged that
Plaintiffs were blocking her access. (Id. at 67.)
Plaintiffs allege that at various times Defendant Kotsidou has directed her camera into
Plaintiffs’ front doorway, which was an intentional privacy invasion. (Id. at 68.)
Plaintiffs allege that “[f]or many months” Defendants Kotsidis and Kotsidou have placed
food outdoors on and around Elm Street, which has “attract[ed] and sustain[ed] a colony of
stray/feral cats.” (Hamza I, Dkt. No. 50 at 69.) Plaintiffs allege that the “animal congregation”
has interfered with their use and enjoyment of their property. (Id.) More specifically, Plaintiffs
allege that Defendants Kotsidis and Kotsidou have harbored a cat (“Orange Kitty”), and that
Orange Kitty caused damage to Plaintiff Hamza’s vehicle totaling approximately $6,000 in
damage. (Id. at 70.)
Plaintiffs allege that Defendants Kotsidis and Kotsidou installed a network of fixed and
mobile devices to record Plaintiffs in private spaces including their backyard hot tub. (Hamza I,
Dkt. No. 50 at 81.) Plaintiffs allege that Defendants posted defamatory statements based on the
surveillance footage on the public Philmont Community Facebook page. (Id. at 84.) Plaintiffs
allege that Defendants Kotsidis and Kotsidou shared manipulated recordings with the District
Attorney’s Office. (Id. at 86.)
The Second Amended Complaint alleges that on August 27, 2025, Defendant Kotsidou
complained to Defendant Klima, the Village of Philmont Code Enforcement Officer, regarding
fires that Plaintiffs had been having on their property. (Hamza I, Dkt. No. 50 at 85.) Plaintiffs
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allege that Defendant Klima sent Plaintiff Hamza an email, which stated that “[t]here is no
burning allowed in NYS villages. Please refrain from doing this or you risk being fined.” (Id.)
Plaintiffs perceived Defendant Klima’s email as retaliatory and an attempt by Defendant
Kotsidou to seek “alternative enforcement channels when unsatisfied with [the outcome of]
previous complaints.” (Id. at 87.) Plaintiffs allege that Defendant Klima’s email threatened
fines without a legal basis which violated their First Amendment rights. (Id. at 87-88.) In
addition, Plaintiffs allege that Defendant Klima threatened to issue a $250 fine for a “structure”
and sun deck that “had existed on the property for years—well before KLIMA’s involvement
and before Defendant [Kotsidou] resided next door.” (Id. at 88.) Plaintiffs allege that thus, their
nonconforming structure is “protected and may not be targeted through retroactive or retaliatory
enforcement.” (Id.)
The Second Amended Complaint alleges that on September 8, 2025, the Philmont
Volunteer Fire Department was dispatched to 16 Elm Street based on photos and a video
provided by Defendant Kotsidou to Defendant Klima. (Hamza I, Dkt. No. 50 at 78.) The
Second Amended Complaint alleges that Defendant Klima then relayed the complaint to the fire
department. (Id. at 79.) Plaintiffs allege that the Philmont Fire Chief inspected the fire pit/grill
and determined that there was no violation of law or code. (Id. at 78.)
The Second Amended Complaint alleges that Plaintiffs’ complaints to Defendant Klima
about illegally aimed spotlights and surveillance cameras were ignored but that complaints from
Defendant Kotsidou “routinely trigger[ed] immediate enforcement against Plaintiffs,” which
reflects selective enforcement. (Hamza I, Dkt. No. 50 at 89.)
Plaintiffs allege that on July 17, 2024, an officer employed by Defendant New York State
Department of Environmental Conservation (“Defendant DEC”) issued Plaintiff Hamza an
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appearance ticket charging him with a misdemeanor. (Hamza I, Dkt. No. 50 at 91.) Plaintiffs
allege that the issuing officer incorrectly characterized the ticket as merely administrative in
nature, which “constitutes procedural unfairness.” (Id.) Plaintiffs allege that Plaintiff Hamza
was not granted discovery before entering a plea agreement regarding the misdemeanor charge,
which violated his rights. (Id. at 92, 94.) Plaintiffs allege that Defendants Kotsidis and Kotsidou
inundated Defendant DEC with complaints thus “weaponizing the agency’s enforcement
machinery to harass Plaintiffs.” (Id. at 93.) The Second Amended Complaint alleges that the
plea agreement was forwarded to the Village of Philmont Court where Defendant Ingersoll
presided. (Id. at 95.)
The Second Amended Complaint alleges that Plaintiff Hamza’s plea agreement required
that he pay a $50 fine and $75 surcharge. (Hamza I, Dkt. No. 50 at 95.) Plaintiff alleges that
Defendant Village of Philmont, through Defendant Ingersoll “and other final decisionmakers—
declined to dismiss the charge despite notice that the citation was pretextual and retaliatory.”
(Id. at 97.)
Plaintiffs allege that on July 23, 2025, a complaint was lodged with Defendant DEC that
was “more than likely initiated by Defendant” Kotsidou. (Hamza I, Dkt. No. 50 at 98.)
Plaintiffs allege that Defendant DEC determined that the complaint was unfounded. (Id.)
Plaintiffs allege that on August 22, 2025, Defendant DEC officer “Josh” responded to
Plaintiff’s residence regarding a complaint of an oil leak from one of Plaintiffs’ vehicles.
(Hamza I, Dkt. No. 50 at 100.) Plaintiffs allege that the complaint was likely made by
Defendants Kotsidis and Kotsidou in retaliation for the filing of this federal action. (Id. at 101.)
Plaintiffs allege that complaints lodged with Defendant DEC in July and August 2025 reflect
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Defendants Kotsidis and Kotsidou acting in concert with state agencies to deprive Plaintiffs of
their constitutional rights. (Id. at 104.)
The Second Amended Complaint alleges that on June 26, 2025, Defendant Detzel
emailed Plaintiff Hamza and demanded that Plaintiff Hamza provide his DD-214 (a private
military discharge document). (Hamza I, Dkt. No. 50 at 108.) Plaintiffs allege that when
Plaintiff Hamza declined to provide the DD-214, Defendant Detzel accused him of lying about
his military service. (Id. at 108-09.) Plaintiffs allege that on June 27, 2025, Defendant
Macfarlane published comments on the Philmont Community Facebook page falsely alleging
that Plaintiff owed back property taxes in Philmont. (Id. at 109.) The Second Amended
Complaint alleges that Defendant Macfarlane “escalated the harassment by publicly demanding,
on Facebook, that Plaintiff [Hamza] produce his DD-214.” (Id.) Plaintiffs allege that the
“timing and substance” of Defendant Macfarlane’s statements “strongly suggest that [Defendant
Detzel]’s defamatory assertions were shared internally and then repeated publicly to discredit
Plaintiff” Hamza. (Id. at 110.)
Plaintiffs allege that on June 27, 2025, Defendant Kotsidis parked a “large U-Haul box
truck in front of Plaintiffs’ home” which obstructed visibility and access. (Hamza I, Dkt. No. 50
at 110.) The Second Amended Complaint alleges that Plaintiff Hamza posted a public safety
warning on the Philmont Community Facebook page and notified Village Trustee Debra
Gitterman regarding the risk that the U-Haul posed to drivers, pedestrians, and children. (Id.)
Plaintiffs allege that an anonymous account posted a “defamatory comment” accusing Plaintiff
Hamza of “stolen valor” which implied that he fabricated his military service and Plaintiffs
believe the comment “stemmed from [Defendant] DETZEL’s defamatory remarks.” (Id.)
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Plaintiffs allege that Plaintiff Hamza “reluctantly posted a redacted copy of his DD-214” but the
“defamatory remarks caused humiliation and emotional pain.” (Id. at 111.)
The Second Amended Complaint alleges that Defendants Village of Philmont, Tkacy,
and Doyle engaged in a pattern of targeting Plaintiffs by threatening to tow Plaintiffs’ legally
parked vehicles. (Hamza I, Dkt. No. 50 at 111-12.) Plaintiffs allege the threats were based on
“unverified ALPR [automated license plate recognition] flags” and selective enforcement of
parking/code rules. (Id. at 113.)
The Second Amended Complaint alleges that Defendant U-Haul entered into a rental
agreement with Defendant Kotsidis, providing him with a cargo van. (Hamza I, Dkt. No. 50 at
115.) Plaintiffs allege that Defendant Kotsidis intentionally parked the U-Haul van on the public
roadway directly in front of Plaintiffs’ property, which obstructed Plaintiff Hamza’s ability to
unload stone and conduct repairs on his property. (Id.) Plaintiffs allege that Defendant Kotsidis
used the van as a tool of harassment and the placement of it in front of Plaintiffs’ property
“served no legitimate purpose.” (Id.) Plaintiffs allege that Plaintiff Hamza contacted Defendant
U-Haul regarding the “obstructive placement of the van and its impact on construction access at
16 Elm Street.” (Id. at 116.) The Second Amended Complaint alleges that Defendant U-Haul
assured Plaintiff Hamza that the vehicle would be retrieved but failed to follow through. (Id.)
Plaintiffs allege that Defendant U-Haul, “as owner and lessor of the cargo van, owed a duty of
care to Plaintiffs and the general public to ensure that its vehicle was not used in a manner that
would cause foreseeable harm.” (Id. at 117.) Plaintiffs allege that Defendant Kotsidis backed
into Plaintiff Hamza’s trailer; Plaintiff Hamza notified Defendant U-Haul and sought trailer
repairs and retrieval of the van. (Hamza I, Dkt. No. 50 at 124.)
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The Second Amended Complaint appears to assert—in a convoluted fashion—that
Plaintiffs fear their house may be foreclosed by Defendant Village of Philmont and that such
foreclosure might result in Defendant Kotsidis and Kotsidou being unjustly enriched. (Hamza I,
Dkt. No. 50 at 127-28.) The Second Amended Complaint alleges that Defendant Village of
Philmont improperly revoked Plaintiffs’ tax-exempt status in 2025. (Id. at 129.)
The Second Amended Complaint alleges that on August 1, 2025, Plaintiff Hamza was
arrested and transported to the New York State Police Trooper barracks without being provided
an arrest warrant or Miranda warnings. (Hamza I, Dkt. No. 50 at 136-38.) Plaintiffs allege that
Defendant Kotsidis “furthered his campaign of retaliation by filing a ‘Notice of Arrest’” on the
docket of this action. (Id. at 139.)
Based on these factual assertions, Plaintiffs appear to assert the following fifty-seven
causes of action: (1) a claim of retaliation in violation of the First Amendment and 42 U.S.C. §
1983 related to the rejection of Plaintiff Hamza’s volunteer firefighter application; (2) a claim
that their right to equal protection of the law was violated pursuant to the Fourteenth Amendment
and 42 U.S.C. § 1983 related to the rejection of Plaintiff Hamza’s volunteer firefighter
application; (3) a claim that their rights pursuant to the New York State Human Rights Law
(“NYSHRL”) N.Y. Exec. Law § 296 were violated related to the rejection of Plaintiff Hamza’s
volunteer firefighter application; (4) a claim of retaliation in violation of the First Amendment
and 42 U.S.C. § 1983 related to the citation of unregistered vehicles during the COVID-19
shutdown of the New York DMV in 2020; (5) a claim that their right to equal protection of the
law was violated pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983 related to
Defendants Cropper, Detzel, and Macfarlane driving down Elm Street “without apparent lawful
purpose”; (6) a claim of unlawful search and seizure in violation of the Fourth Amendment and
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42 U.S.C. § 1983 related to Defendants’ threatened impoundment of Plaintiffs’ vehicle; (7) a
claim that their procedural due process rights were violated pursuant to the Fourteenth
Amendment and 42 U.S.C. § 1983 related to Defendants Tkacy and Doyle threatening to tow
Plaintiffs’ vehicle on a Friday night when the DMV offices were closed; (8) a claim that their
substantive due process rights were violated pursuant to the Fourteenth Amendment and 42
U.S.C. § 1983 related to the imposition of penalties during the COVID-19 emergency; (9) a
claim of conspiracy between Defendants Doyle, Tkacy, Kotsidis, and Kotsidou in violation of 42
U.S.C. § 1985(3); (10) a claim of private nuisance in violation of New York common law related
to Defendant Kotsidou blaring a car horn that unreasonably interfered with Plaintiffs’ use and
enjoyment of their property; (11) a claim of intentional infliction of emotional distress (“IIED”)
in violation of New York common law related to Defendants’ threats, public shaming with
doctored images, and repeated baseless police involvement; (12) a claim of trespass to chattels in
violation of New York common law related to the surveillance by Defendants Kotsidis and
Kotsidou of Plaintiffs’ home and interference with Plaintiffs’ ability to enjoy their property; (13)
a claim of abuse of process in violation of New York common law related to Defendant
Kotsidis’s instigation of Plaintiff Hamza’s arrest based on an altered video; (14) a claim that
their rights pursuant to the NYSHRL were violated related to Defendant Doyle’s discriminatory
animus targeting Plaintiffs based on their sexual orientation and national origin; (15) a claim of
retaliation in violation of the First Amendment and 42 U.S.C. § 1983 related to the interaction on
June 27, 2025, where Defendant Tkacy threatened to tow Plaintiffs’ vehicle based on the ALPR
scan; (16) a claim that their equal protection rights were violated pursuant to the Fourteenth
Amendment and 42 U.S.C. § 1983 related to the interaction on June 27, 2025, where Defendant
Tkacy threatened to tow Plaintiffs’ vehicle based on the ALPR scan; (17) a claim of unlawful
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search and seizure pursuant to the Fourth Amendment and 42 U.S.C. § 1983 related to the
interaction on June 27, 2025, where Defendant Tkacy threatened to tow Plaintiffs’ vehicle based
on the ALPR scan; (18) a claim that their procedural due process rights pursuant to the
Fourteenth Amendment and 42 U.S.C. § 1983 were violated related to the interaction on June 27,
2025, where Defendant Tkacy threatened to tow Plaintiffs’ vehicle based on the ALPR scan; (19)
a claim of abuse of process pursuant to New York common law related to the interaction on June
27, 2025, where Defendant Tkacy threatened to tow Plaintiffs’ vehicle based on the ALPR scan;
(20) violations of New York Penal Law Sections 195.00, 195.05, 240.26, and 240.30 related to
the interaction on June 27, 2025 where Defendant Tkacy threatened to tow Plaintiffs’ vehicle
based on the ALPR scan; (21) a claim of private nuisance related to Plaintiffs’ inability to access
Plaintiff Hamza’s motorcycle; (22) a claim of trespass to chattels related to Plaintiffs’ inability to
access Plaintiff Hamza’s motorcycle; (23) a claim of defamation per se related to Defendant
Kotsidis’s allegation that Plaintiff Hamza “colluded with the Town of Claverack to intentionally
damage [his] fence and structurally weaken it”; (24) a claim of IIED pursuant to New York
common law related to Defendant Kotsidou’s false report to law enforcement that Plaintiff
Hamza blocked the sidewalk while attempting to retrieve his motorcycle; (25) a claim seeking
declaratory and injunctive relief in the form of an order of protection against Defendants Kotsidis
and Kotsidou based on their “long and continuing pattern of” surveilling Plaintiffs; (26) a claim
of private nuisance related to Defendants Kotsidis and Kotsidou feeding stray cats in and around
Elm Street; (27) a claim of trespass to chattels related to Orange Kitty damaging Plaintiff
Hamza’s vehicle; (28) a claim of negligence related to Defendants Kotsidis and Kotsidou
harboring Orange Kitty and the damage caused by Orange Kitty; (29) a claim of IIED related to
Defendant Kotsidou’s use of slurs related to Plaintiff Hamza’s sexual orientation; (30) a claim of
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defamation per se related to Defendant Kotsidou’s complaint to Defendant Klima that was
ultimately relayed to the Philmont Fire Department that Plaintiffs had a fire; (31) a claim that
Defendants Kotsidis and Kotsidou violated the New York State Civil Rights Law § 52-a with
their repeated recording of Plaintiffs in their backyard; (32) a claim of IIED against Defendants
Kotsidis and Kotsidou related to their “constant surveillance” of Plaintiffs’ property; (33) a claim
of defamation based on the Facebook posts of Defendants Kotsidis and Kotsidou containing
surveillance footage; (34) a claim of abuse of process based on Defendants Kotsidis and
Kotsidou submitting selectively edited surveillance footage to the Philmont Police “to weaponize
government authority as a tool of harassment and defamation”; (35) a claim of abuse of process
related to Defendant Kotsidou’s pattern of seeking alternative enforcement channels regarding
Plaintiffs’ fires in an attempt to retaliate against Plaintiffs; (36) a claim of retaliation in violation
of the First Amendment and 42 U.S.C. § 1983 related to Defendant Klima’s threat to issue a
$250 fine to Plaintiffs for a structure and sun deck that existed “well before KLIMA’s
involvement and before Defendant [Kotsidou] resided next door”; (37) a claim that Plaintiffs’
rights to equal protection of the law was violated by Defendant Klima ignoring their concerns
regarding spotlights and surveillance cameras while complaints from Defendant Kotsidou
“routinely trigger[ed] immediate enforcement against Plaintiffs” in violation of the Fourteenth
Amendment and 42 U.S.C. § 1983; (38) a claim of abuse of process related to Defendants
Kotsidis and Kotsidou “inundat[ing]” Defendant DEC with complaints “thereby weaponizing the
agency’s enforcement machinery to harass Plaintiffs”; (39) a claim of malicious prosecution
against Defendants Kotsidis, Kotsidou, DEC, Village of Philmont, and Ingersoll related to the
misdemeanor environmental conservation ticket that Plaintiff Hamza pleaded guilty to; (40) a
claim of retaliation against Defendants Kotsidis and Kotsidou in violation of the First
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Amendment and 42 U.S.C. § 1983 related to their report to Defendant DEC that Plaintiffs’ GMC
Sierra was leaking oil; (41) a claim of private nuisance related to Defendants Kotsidis and
Kotsidou filing a baseless complaint with Defendant DEC alleging that Plaintiffs’ GMC Sierra
was leaking oil; (42) a claim of civil conspiracy pursuant to 42 U.S.C. § 1985(3) related to
Defendants Kotsidis and Kotsidou conspiring with “police and municipal officials . . . to deprive
Plaintiffs of equal protection of the laws”; (43) a claim of defamation related to Defendant
Macfarlane’s comments on the Philmont Community Facebook page regarding Plaintiff Hamza
owing back taxes and demanding that Plaintiff Hamza produce his DD-214; (44) a claim of IIED
against Defendants Detzel, Macfarlane, and Village of Philmont related to Defendant Detzel’s
email request for Plaintiff Hamza’s DD-214 form and threat to damage Plaintiff Hamza’s
reputation if it was not provided; (45) a claim that Plaintiffs’ rights to equal protection of the law
pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983 were violated by Defendants
Tkacy and Doyle related to the citations issued and threats to tow Plaintiff Hamza’s vehicles;
(46) a claim of private nuisance/obstruction of access against Defendant Kotsidou related to his
parking of a U-Haul van “with the specific intent to interfere with Plaintiffs’ property access and
enjoyment” including the interference with Plaintiff Hamza’s construction and repair efforts;
(47) a claim that Defendant U-Haul was negligent in its failure to act after being informed that
the van it rented to Defendant Kotsidis was being misused; (48) a claim that Defendants Kotsidis
and Kotsidou falsely reported that Plaintiff Hamza struck their rented U-Haul van; (49) a claim
that Plaintiffs’ right to equal protection of the law pursuant to the Fourteenth Amendment and 42
U.S.C. § 1983 was violated by Defendant Village of Philmont’s selective revocation of
Plaintiffs’ tax-exempt status; (50) a claim that Defendants retaliated against Plaintiffs in violation
of the First Amendment and 42 U.S.C. § 1983 when Defendants revoked Plaintiffs’ tax-exempt
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status, denied code accommodations, and selectively enforced ordinances; (51) a claim that
Defendants Kotsidis and Kotsidou have been (and will continue to be) unjustly enriched at
Plaintiffs’ expense when they intentionally interfered with Plaintiffs’ rehabilitation of 16 Elm
Street, which depressed the property’s value and forced a potential foreclosure; (52) a claim of
prima facie tort pursuant to New York common law related to Defendants’ actions filing
municipal complaints and code enforcement petitions, social media postings, and
legal/administrative filings with the sole purpose to injure Plaintiffs’ charitable mission and
reputation; (53) a claim of false arrest in violation of the Fourth Amendment and 42 U.S.C. §
1983 based on Defendant Rodriguez’s arrest of Plaintiff Hamza on August 1, 2025; (54) a claim
of retaliation in violation of the First Amendment and 42 U.S.C. § 1983 related to Plaintiff’s
arrest on August 1, 2025; (55) a claim of IIED based on Plaintiff Hamza’s fear that Defendants
Kotsidis and Kotsidou will fabricate allegations to instigate further arrests of Plaintiff Hamza;
(56) a claim of substantive due process in violation of the Fourteenth Amendment and 42 U.S.C.
§ 1983 related to Plaintiff Hamza’s arrest on August 1, 2025, which was initiated more than six
weeks after the alleged incident and based on questionable video; and (57) a claim of IIED
related to Plaintiff Yakel losing his job based on Defendants’ “multi-year campaign to terrorize
Plaintiffs.” (Hamza I, Dkt. No. 50 at 21-150.) As relief, Plaintiffs seek “high-end compensatory
damages, together with punitive damages” (Hamza I, Dkt. No. 50 at 151), declaratory relief,
injunctive relief prohibiting further surveillance, harassment, defamatory publications, retaliatory
or selective enforcement, and a direction that municipal actors cease retaliation and provide
equal access to public services. (Id. at 152.)
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B. 	Hamza II Complaint
Construed as liberally6 as possible, the Complaint in Hamza II alleges that Plaintiff
Hamza’s constitutional rights were violated by defendants Athanasios Dimadis Kotsidis,
Maroula Kotsidou, Chris Liberati-Contant, and Zechariah Davidson-Cunningham. (See
generally Hamza II, Dkt. No. 1.) More specifically, the Complaint alleges that Defendants
Kotsidis and Kotsidou aimed cameras at Plaintiff Hamza’s doors and bedroom window, recorded
his backyard, made complaints to law enforcement agencies, and obstructed access to Plaintiff
Hamza’s property. (Hamza II, Dkt. No. 1 at 4.) The Complaint alleges that during the months of
July and August 2025, Plaintiff Hamza repeatedly contacted the Columbia County District
Attorney’s Office regarding the surveillance and harassment “emanating from 14 Elm Street.”
(Id.) Plaintiff Hamza alleges that on August 1, 2025, he was seized by law enforcement at home
and arresting officers “did not announce an arrest, present a warrant before force, or provide
Miranda warnings prior to questioning.” (Id.) Plaintiff Hamza alleges that the “timing/execution
strongly indicate[s] a retaliatory purpose aligned with [Defendants Kotsidis and Kotsidou]’s
campaign.” (Id.)
Based on these factual allegations, Plaintiff Hamza asserts the following seven claims:
(1) a claim of retaliation in violation of the First Amendment and 42 U.S.C. § 1983 against
Defendants Liberati-Conant, Davidson-Cunningham, Kotsidis, and Kotsidou; (2) a claim that his
right to equal protection under the law was violated pursuant to the Fourteenth Amendment and
42 U.S.C. § 1983 against Defendants Liberati-Conant, Davidson-Cunningham, Kotsidis, and
Kotsidou; (3) a claim that his right to procedural and substantive due process was violated
6 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto, 44 F.3d at 173 (quoting Burgos, 14 F.3d at 790).
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pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; (4) a claim of unreasonable
seizure in violation of the Fourth Amendment and 42 U.S.C § 1983; (5) a claim that Plaintiff
Hamza’s Miranda rights were violated pursuant to the Fifth and Fourteenth Amendments and 42
U.S.C. § 1983; (6) a claim of conspiracy pursuant to 42 U.S.C. § 1983; and (7) a claim of
conspiracy pursuant to 42 U.S.C. § 1985(3). (Hamza II, Dkt. No. 1 at 6-8.) As relief, Plaintiff
Hamza seeks compensatory damages, punitive damages, declaratory relief, and injunctive relief.
(Id. at 9.)
C. 	Hamza III Complaint
Construed as liberally7 as possible, the Complaint in Hamza III alleges that Plaintiff
Hamza’s constitutional rights were violated by defendants Athanasios Dimadis Kotsidis,
Maroula Kotsidou, the Government of the Hellenic Republic (Greece), Association of Foreign
Press Correspondents in the USA, Inc., the George Washington University Graduate School of
Political Management, and the United States Department of State. (See generally Hamza III,
Dkt. No. 1.) More specifically, Plaintiff Hamza alleges that since 2022, Defendants Kotsidis and
Kotsidou have engaged in a pattern of confrontations involving “surveillance, online
disinformation, and complaint-generation to officials (Village of Philmont Police, Columbia
County Sheriff, New York State Police . . .), and regulators (New York State Department of
Environmental Conservation . . .), aimed at Plaintiff [Hamza] and timed to Plaintiff[ Hamza]’s
protected speech and litigation.” (Hamza III, Dkt. No. 1 at 5.) Plaintiff Hamza alleges that when
Defendant Kotsidou is physically present in Philmont (she arrives around May and departs
around December), the incidents increase and that Defendants Kotsidis and Kotsidou have
7 	The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto, 44 F.3d at 173 (quoting Burgos, 14 F.3d at 790).
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publicized narratives about him in English and in Greek. (Id.) The Complaint alleges that
Defendants Kotsidis and Kotsidou “leveraged press credentials and purported governmental ties
to lend false official weight to accusations and to influence officials.” (Id.) Plaintiff Hamza
alleges that Defendant Kotsidou retaliated against him for or with the Government of Greece.
(Id.)
Plaintiff Hamza alleges that the “objective” of Defendants Kotsidis and Kotsidou is to
“orchestrat[e] an arrest and cloud[]/pressur[e] title to force a distress sale or otherwise gain
control over” Plaintiff Hamza’s property at 16 Elm Street, which would facilitate the relocation
of “associates/family from Greece.” (Id.)
Based on these factual allegations, the Complaint asserts the following eight causes of
action: (1) a claim of “Retaliation; Abuse of Process; Malicious Prosecution” against Defendants
Kotsidis and Kotsidou in violation of the First and Fourth Amendments and 42 U.S.C. § 1983;
(2) a claim of conspiracy against Defendants Kotsidis and Kotsidou in violation of 42 U.S.C. §
1985(3); (3) a claim of defamation against Defendants Kotsidis and Kotsidou; (4) a claim of
IIED against Defendants Kotsidis and Kotsidou; (5) a claim of private
nuisance/trespass/interference with property against Defendants Kotsidis and Kotsidou; (6) a
claim of slander of title against Defendants Kotsidis and Kotsidou; (7) a claim of foreign
direction/agency against Defendants Kotsidis, Kotsidou, the Government of the Hellenic
Republic (Greece), Association of Foreign Press Correspondents in the USA, Inc., the George
Washington University Graduate School of Political Management, and the United States
Department of State; and (8) a claim of respondent superior/negligent hiring, supervision, and
retention against Defendants Association of Foreign Press Correspondents in the USA and the
George Washington University Graduate School of Political Management. (Hamza III, Dkt. No.
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1 at 7-9.) As relief, Plaintiff Hamza seeks compensatory and punitive damages against
Defendants Kotsidis and Kotsidou and injunctions “restraining private Defendants from trespass,
direct contact [], knowingly false complaints to officials, and defamatory publications.” (Id. at
10.)
II. 	PLAINTIFFS’ APPLICATIONS 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).8 After reviewing Plaintiffs’ IFP applications
8 	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).
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(Hamza I, Dkt. Nos. 3, 4; Hamza II, Dkt. No. 2; Hamza III, Dkt. No. 4), the Court finds that
Plaintiffs meet this standard.9 Therefore, Plaintiffs’ applications to proceed IFP are granted.10
Plaintiff Hamza is cautioned that the ability to litigate an action without prepayment of
fees is a privilege that can be denied, revoked, or limited based upon a showing of prior abuses.
See In re Anderson, 511 U.S. 364, 365-66 (1994) (denying the pro se petitioner’s request for
leave to proceed IFP where the Court found that, like the previous twenty-two petitions filed
during the three immediately preceding years, the instant petition was “patently frivolous”); see
also Cuoco v. United States Bureau of Prisons, 328 F. Supp. 2d 463, 467 (S.D.N.Y. 2004) (“The
ability to proceed IFP is a privilege provided for the benefit of indigent persons.”). The authority
of a court to deny or limit a request to proceed IFP is implicit in the permissive, rather than
compulsory, language of the controlling statute, which provides that “any court of the United
States may authorize the commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without prepayment of fees or security
therefor[.]” 28 U.S.C. § 1915(a)(1) (emphasis added); In re McDonald, 489 U.S. 180, 183
9 	However, the undersigned notes that the applications submitted by Plaintiffs appear
incomplete. For example, in question 2, Plaintiff Hamza indicates that his gross pay or wages
are $1,676. (Hamza I, Dkt. No. 3 at ¶ 2.) Plaintiff Hamza states that he receives Social Security
on a monthly basis but does not state the amount of Social Security that he receives or clarify if
the amount that he reported in gross pay or wages is the amount of Social Security that he
receives. Moreover, Plaintiff Yakel indicates that in the last twelve months he has not received
income from any sources. (Hamza I, Dkt. No. 4 at ¶ 2.) However, the Complaint appeared to
allege that Plaintiff Yakel was employed recently and lost his employment based on the actions
of Defendants. (Hamza I, Dkt. No. 1 at ¶¶ 379-380; see also Hamza I, Dkt. No. 50 at 147
[alleging that Plaintiff Yakel lost his job, wages, and medical insurance because of the actions of
Defendants]; Hamza II, Dkt. No. 1, Attach. 2 at 7 [alleging that Defendant Yakel “recently lost
his job due to ongoing actions by our neighbors” and that Defendant Yakel “deeply loved his
position at the Poured Candel Bar in Hudson, New York . . . . [but t]hat job has now been taken
from him”].)
10 	Plaintiffs are reminded that, although their IFP applications have been granted, they are
still required to pay fees that they may incur in this action, including copying and/or witness fees.
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(1989). For this reason, courts are regarded as possessing discretionary authority to deny IFP
status to litigants who have abused the privilege. See Hurt v. Soc. Sec. Admin., 544 F.3d 308,
309-310 (D.C. Cir. 2008) (quoting Butler v. Dep't of Justice, 492 F.3d 440, 444-45 (D.C. Cir.
2007)) (“This Circuit grants IFP status to various plaintiffs, but asserts its discretion to deny or
revoke this privilege for abusive litigants, looking to ‘the number, content, frequency, and
disposition of their previous filings[.]’ ”).
Plaintiff Hamza’s litigation history in this district suggests that he is on the brink of being
found to have abused the privilege of proceeding IFP. In addition to the three cases currently
before the Court (Hamza I, Hamza II, and Hamza III), Plaintiff Hamza has filed four other
lawsuits in this district within the last six years.11 In each of those actions, Plaintiff Hamza
requested permission to proceed without prepayment of fees.
A common theme among the dismissed actions filed by Plaintiff Hamza in this district
(including, as will be discussed below, the current pleadings under consideration in this report) is
his failure to include factual allegations in his pleadings that (1) demonstrate that the Court has
jurisdiction to consider his claims, or (2) state a claim upon which relief may be granted.
Accordingly, Plaintiff Hamza is hereby cautioned that (1) proceeding IFP is a privilege that is
extended to litigants at the discretion of the court, and (2) any further filing of patently frivolous
lawsuits may result in the denial of any request to proceed IFP in an action and/or a
11 	(1) Hamza v. Yandik, Case No. 1:19-CV-0447 (LEK/DJS) (dismissed for failure to timely
effectuate proper service); (2) Hamza v. Sollenberger, Case No. 1:23-CV-0355 (MAD/CFH)
(dismissed without prejudice but without leave to amend based on a lack of subject matter
jurisdiction); (3) Hamza v. Midas, Inc., Case No. 1:23-CV-0543 (MAD/CFH) (dismissed without
prejudice but without leave to amend based on a lack of subject matter jurisdiction); and (4)
Hamza v. Yandik, Case No. 1:25-CV-1382 (GTS/PJE) (currently pending).
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recommendation to the Chief District Judge that a filing injunction be issued against Plaintiff
Hamza, barring him from filing any future lawsuits in this district without prior permission.
III. 	GOVERNING LEGAL STANDARDS
A. 	Legal Standard for Initial Review of the Complaint
“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 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); see Fitzgerald v. First East Seventh Street Tenants Corp., 221
F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even
when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant,
Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016)
(Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories
of the plaintiff’s retaliation claim sua sponte because those theories were so lacking in arguable
merit as to be frivolous).
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
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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis
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).
Moreover, Rule 10 of the Fed. R. Civ. P. provides that “[a] party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances[.]” Fed. R. Civ. P. 10(b). Rule 10’s purpose is to “provide an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins,
22-CV-1248, 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (Stewart, M.J.) (citation
omitted), report and recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023)
(D’Agostino, J.). A complaint that does not comply with these Rules “presents far too heavy a
burden in terms of defendants’ duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims,” and may
properly be dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996)
(McAvoy, C.J.).
“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
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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).
B. 	Legal Standard Governing Consolidation
Pursuant to Fed. R. Civ. P. 42(a), a court may consolidate actions where those actions
involve common questions of law or fact. Fed. R. Civ. P. 42(a). “District courts enjoy
substantial discretion in deciding whether and to what extent to consolidate cases.” Hall v. Hall,
138 S. Ct. 1118, 1131 (2018). “The Court may order consolidation upon its own motion, and the
consent of the parties is not required.” Tucker v. Kenney, 994 F. Supp. 412, 415 (E.D.N.Y.
1998); accord Nussbaum v. Spider, Inc., 09-CV-2023, 09-CV-2026, 2009 WL 2762785, at *1
(E.D.N.Y. Aug. 24, 2009) (citing Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir.
1990); Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999)).
IV. 	ANALYSIS
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).
Having reviewed Plaintiffs’ Second Amended Complaint in Hamza I, Plaintiff Hamza’s
Complaint in Hamza II, and Plaintiff Hamza’s Complaint in Hamza III, with this principle in
mind, I recommend that all causes of action be dismissed.
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A. 	Consolidation
The factual allegations set forth in Hamza I, Hamza II, and Hamza III chronicle
Plaintiffs’ ongoing neighborly feud with Defendants Kotsidis and Kotsidou and the resulting
consequences stemming therefrom. After carefully considering the matter, the Court
consolidates Hamza I, Hamza II, and Hamza III. Hamza I is designated as the lead case and all
future filings are to be made in the lead case only.
B. 	Hamza I
1. 	Failure to Comply with Fed. R. Civ. P. 8(a)
The 154-page Second Amended Complaint is neither short nor plain, but rather is
bloated, rambling, and teeming with irrelevant factual digressions and improper legal argument.
Dismissal on these grounds is justified. See, e.g., Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir.
1972) (affirming dismissal of 88-page pro se complaint containing “a labyrinthian prolixity of
unrelated and vituperative charges that defied comprehension [and therefore] failed to comply
with the [short-and-plain-statement] requirement of Rule 8”); see also O’Neil v. Ponzi, 394 F.
App’x 795, 796-97 (2d Cir. 2010) (“O’Neil’s amended complaint, even when read liberally, fails
to contain ‘a short and plain statement of the claim’ entitling her to relief. Fed. R. Civ. P.
8(a)(2).”).
As a result, I recommend dismissal of Plaintiffs’ Second Amended Complaint for failure
to comply with Fed. R. Civ. P. 8.
2. 	Plaintiffs’ Claims are Frivolous
In the alternative, I recommend dismissal of Plaintiffs’ claims as frivolous.
Plaintiffs’ fanciful Second Amended Complaint alleges a far-ranging conspiracy
involving private citizen neighbors, members of the Village government, officers of the local
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police department, the New York State Department of Environmental Conservation, private
company U-Haul, the New York State Police, a New York State Trooper, and the Village of
Philmont Judge. (See generally Dkt. No. 50.)
Plaintiffs’ 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, in the alternative, Plaintiffs’ Second Amended Complaint
be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
3. 	Claims Pursuant to 42 U.S.C. § 1983
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, which establishes a cause of
action for “the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990).
“Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)
(citation omitted).
To state a viable claim under Section 1983, a plaintiff must allege that the defendant,
while acting under color of state law, deprived him of a right, privilege or immunity secured by
the Constitution or by the laws of the United States. See 42 U.S.C. § 1983.
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a. 	Claims Against Defendants New York State Police, DEC, and
Trooper Rodriguez in His Official Capacity
i. 	Seeking Monetary Damages
In the alternative, I recommend that Plaintiffs’ claims against Defendants New York
State Police, DEC, and Trooper Rodriguez in his official capacity12 be dismissed based on
immunity pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
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-0678, 2003 WL 24243989, 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.”). The Eleventh Amendment’s immunity extends to the New York
State Police, New York State Troopers in their official capacities, and New York State
Department of Environmental Conservation as agencies of the State of New York. Berman
Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993) (holding that, due to sovereign immunity,
the district court lacked subject matter jurisdiction over section 1983 and state law claims for
damages against DEC officers in their official capacities); Riley v. Cuomo, 17-CV-1631, 2018
WL 1832929, *4 (E.D.N.Y. Apr. 16, 2018) (holding that the New York State Police, as a
division in the executive department of the State, is immune from claims under § 1983); Naples
v. Stefanelli, 972 F. Supp. 2d 373, 390-91 (E.D.N.Y. 2013) (citing Dube v. State Univ. of N.Y.,
12 	“[A] suit against a state official in his or her official capacity is not a suit against an
official but rather is a suit against the official's office.” Will v. Mich. Dep't of State Police, 491
U.S. 58, 71 (1989).
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900 F.2d 587, 594 (2d Cir. 1990)) (finding that section 1983 and state law damages claims
“against the State of New York and the DEC are all barred the Eleventh Amendment”); New
Holland Vill. Condo. Ass'n v. DeStaso Enters. Ltd., 139 F. Supp. 2d 499, 501-02 (S.D.N.Y.
2001) (dismissing a section 1983 claim for damages against the DEC based on Eleventh
Amendment sovereign immunity); see also Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[A]
suit by private parties seeking to impose a liability which must be paid from public funds in the
state treasury is barred by the Eleventh Amendment.”); Goonewardena v. New York, 475 F.
Supp. 2d 310, 329 (S.D.N.Y.2007) (“[S]overeign immunity also extends to bar claims for
monetary damages brought against state officers sued under section 1983 in their official
capacities.”).
As a result, I recommend that in the alternative, Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 for monetary damages against Defendants New York State Police, DEC, and Trooper
Rodriguez in his official capacity be dismissed based on immunity pursuant to 28 U.S.C. §
1915(e)(2)(B)(iii).
ii. 	Seeking Injunctive Relief
“[J]udgments against state officers declaring that they violated federal law in the past”
are also not permitted. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139,
146 (1993) (citing Green v. Mansour, 474 U.S. 64, 73 (1985)). However, prospective injunctive
relief is available against individuals being sued in their official capacities in order to correct an
ongoing violation of federal law. See Edelman, 415 U.S. at 663; Ex Parte Young, 209 U.S. 123
(1908). In this regard, through the doctrine of Ex Parte Young, a party may bring “a suit for
injunctive [or declaratory] relief challenging the constitutionality of a state official’s actions in
enforcing state law.” CSX Transp., Inc. v. New York State Office of Real Prop. Servs., 306 F.3d
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87, 98 (2d Cir. 2002) (internal quotation marks and alteration omitted); see also Arthur v.
Nyquist, 573 F.2d 134, 138 (2d Cir.1978).
“In seeking prospective relief like an injunction, ‘a plaintiff must show that he can
reasonably expect to encounter the same injury again in the future—otherwise there is no
remedial benefit that he can derive from such a judicial decree.” Leder v. Am. Traffic Sols., Inc.,
81 F. Supp. 3d 211, 222 (E.D.N.Y. 2015), aff’d, 630 F. App’x 61 (2d Cir. 2015) (quoting
MacIssac v. Town of Poughkeepsie, 770 F. Supp. 2d 587, 593 (S.D.N.Y. 2011)); see also
Congregation Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona, N.Y., 945 F.3d 83, 110 (2d
Cir. 2019) (“‘[C]onjectural’ injuries do not suffice under Article III.”) (alteration in original)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); Nicosia v. Amazon.com, Inc.,
834 F.3d 220, 239 (2d Cir. 2016) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111-12
(1983)) (“[The plaintiffs] lack standing to pursue injunctive relief where they are unable to
establish a ‘real or immediate threat’ of injury.”).
Plaintiffs seek injunctive relief “prohibiting further surveillance, harassment, defamatory
publications, and retaliatory or selective enforcement, and directing municipal actors to cease
retaliation and provide equal access to public services.” (Hamza I, Dkt. No. 50 at 152.)
However, Plaintiffs fail to allege facts plausibly suggesting that they are at risk of future harms
by Defendants New York State Police, DEC, and Rodriguez in his official capacity. For
example, with respect to their request for an injunction prohibiting further defamatory
publications, “Plaintiffs have neither alleged how they would suffer continuing defamation
absent an injunction barring speech nor that the speech is likely to continue. Absent more,
Plaintiffs do not have standing to seek injunctive relief on their . . . claims.” Miller v. James, 751
F. Supp. 3d 21, 34 (N.D.N.Y. 2024) (Kahn, J.).
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As a result, in the alternative, I recommend that Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendants New York State Police, DEC, and Trooper Rodriguez in his official
capacity be dismissed (1) to the extent that Plaintiffs seek monetary damages as barred by the
Eleventh Amendment principles of sovereign immunity, and (2) to the extent that Plaintiffs seek
declaratory and injunctive relief for lack of standing.
b. 	Claims Against Defendants Kotsidis and Kotsidou
The requirement that a defendant act “under color of state law,” means that the typical §
1983 claim is brought against state and local government officials and entities, not against
private individuals or entities. Private actors “may only be held liable under § 1983 where the
conduct at issue constitutes ‘state action’ [–] which only occurs where the challenged action of a
private party is ‘fairly attributable’ to the state.” Hulett v. City of Syracuse, 253 F. Supp. 3d 462,
504 (N.D.N.Y. 2017) (Hurd, J.) (citing Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d
Cir. 2010)).
For the purposes of section 1983, the actions of a nominally private entity are
attributable to the state when: (1) the entity acts pursuant to the ‘coercive power’
of the state or is ‘controlled’ by the state (‘the compulsion test’); (2) when the
state provides ‘significant encouragement’ to the entity, the entity is a ‘willful
participant in joint activity with the [s]tate,’ or the entity’s functions are
‘entwined’ with state policies (‘the joint action test’ or ‘close nexus test’); or (3)
when the entity ‘has been delegated a public function by the [s]tate,’ (‘the public
function test’).
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)). “The
fundamental question under each test is whether the private entity’s challenged actions are ‘fairly
attributable’ to the state.” Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012).
It is well-settled that “a private party who calls police officers for assistance or provides
them with information that may lead to an arrest of an individual does not become a state actor
rendering that party liable under § 1983 to the person detained, unless the police officers were
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improperly influenced or controlled by the private party.” Fisk v. Letterman, 401 F. Supp. 2d
362, 367 (S.D.N.Y. 2005). Moreover “[a]lleging merely that a private party regularly interacts
with a state actor does not create an inference of agreement to violate a plaintiff’s rights.” Fisk,
401 F. Supp. 2d at 377 (citing Kramer v. City of New York, 04-CV-0106, 2004 WL 2429811, at
*7 (S.D.N.Y. Nov. 1, 2004)).
Under any of the applicable tests, Second Amended Complaint fails to allege facts
plausibly suggesting that Defendants Kotsidis and Kotsidou acted “under color of state law.”
Although Defendants Kotsidis and Kotsidou allegedly informed law enforcement about various
issues that they had with Plaintiffs, that does not transform them to state actors. The conclusory
allegations contained in the Second Amended Complaint fail to plausibly suggest that
Defendants Kotsidis and Kotsidou acted in concert with state actors. See Illescas v. Annucci, 21-
CV-8473, 2024 WL 4882774, at *4 (S.D.N.Y. Nov. 25, 2024) (citing Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 324 (2d Cir. 2002)) (“Courts in this circuit have held that ‘mere
conclusory allegation[s] that a private entity acted in concert with a state actor does not suffice to
state a § 1983 claim against the private entity.’”); Altieri v. Tsopanides, 21-CV-1224, 2022 WL
1912851, at *3 (D. Conn. June 3, 2022) (dismissing § 1983 complaint against non-state actor
because conclusory allegations that defendants “acted jointly and in concert” with the state were
insufficient to plausibly state a claim upon which relief may be granted).
Indeed, the Second Amended Complaint contains several allegations plausibly suggesting
that state actors were not acting in concert with Defendants Kotsidis and Kotsidou to violate
Plaintiffs’ rights. (Hamza I, Dkt. No. 50 at 43-44 [alleging that Trooper Torchia of Defendant
New York State Police directed Defendants Kotsidis and Kotsidou to remove their bicycles from
the roadway and never to place their bicycles in the roadway again]; Id. at 45 [alleging that third-
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33
party Shawn Laurange “fearing retaliation or towing by the Philmont Police, began parking
exclusively in the Canal Street Municipal Lot and walking home”]; Id. at 64 [alleging that
Trooper Driver deemed the allegation of Defendants Kotsidis and Kotsidou that Plaintiff Hamza
hit their rented U-Haul unfounded]; Id. at 67 [alleging that Deputy Pozzi “acknowledged that
[Defendant Kotsidou] filming Plaintiffs in a harassing manner was inappropriate”]; Id. at 69
[alleging that Defendants Kotsidis and Kotsidou received “repeated admonitions from Sheriffs
and State Troopers to cease” their pattern of harassment]; Id. at 78-79 [alleging that the Philmont
Fire Chief “found no violation of law or code” on September 8, 2025, after being dispatched to
Plaintiffs’ property based on a complaint that Plaintiffs believe was “instigated” by Defendant
Kotsidou’s complaint]; Id. at 83 [alleging that “Officers instructed Defendants [Kotsidis and
Kotsidou] to redirect the cameras away from Plaintiffs’ property”]; Id. at 86 [alleging that
“Sheriff Pozzi informed Plaintiff HAMZA that . . . given the continuing conflict between the
parties, Defendant [Kotsidou] was advised to exercise discretion and avoid provoking
confrontation”]; Id. at 98 [alleging that Defendants Kotsidis and Kotsidou lodged prior
complaints regarding Plaintiffs’ fires that were “investigated and deemed baseless”]; Id. at 98
[alleging that the DEC determined that the complaint of Defendants Kotsidis and Kotsidou on
July 23, 2025, regarding Plaintiffs’ fire was “unfounded”]; Id. at 100-02 [alleging that Defendant
DEC Officer “Josh” responded to Plaintiffs’ residence regarding a complaint of an oil leak from
a vehicle but merely “advised Plaintiffs to monitor the truck for leaks”]; Id. at 105 [alleging that
Defendants Kotsidis and Kotsidou lodged “multiple false” complaints with Defendant DEC
between July and August 2025, but that “[e]ach of these complaints was investigated by DEC
officers, who either found them unfounded or acknowledged that the allegations reflected a
pattern of neighbor driven harassment rather than legitimate environmental concerns”]; Id. at 116
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[alleging that Trooper Driver of Defendant New York State Police inspected the rented U-Haul
van and “found no evidence of damage” after Defendant Kotsidis “falsely report[ed] . . . that
Plaintiff HAMZA had struck the U-Haul van”]; Id. at 122 [alleging that when Trooper Driver
responded to Defendant Kotsidis’s report that Plaintiff Hamza hit the rented U-Haul, Trooper
Drover “consistent with standard procedure, spoke first with Plaintiff HAMZA before
interviewing Defendants about the alleged incident. This demonstrates that police considered
Plaintiffs credible reporters rather than aggressors.”]; Id. at 123 [alleging that “Trooper Driver
concurred that the U-Haul Van, in its current location was parked specifically to block access,
harass Plaintiffs, and use as a tool to thwart Plaintiffs[’] charitable work.”]; Id. at 124 [alleging
that Plaintiff Hamza “and Trooper Driver concluded the proper remedy was to remove the U-
Haul van and return it to the rental location”]; Id. at 146 [alleging that Defendants Kotsidis and
Kotsidou “persisted after law-enforcement admonitions, repositioned cameras after police left”].)
As a result, I recommend that in the alternative, Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendants Kotsidis and Kotsidou be dismissed for failure to state a claim upon
which relief may be granted.
c. 	Claims Against Defendant Village of Philmont
A municipality—like Defendant Village of Philmont—may be held liable if a plaintiff
can assert that a policy or custom of that municipality caused the constitutional violation. Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 692-94 (1978). “A policy or custom may be established by
any of the following: (1) a formal policy officially endorsed by the municipality; (2) actions or
decisions made by municipal officials with decision-making authority; (3) a practice so persistent
and widespread that it constitutes a custom through which constructive notice is imposed upon
policymakers; or (4) a failure by policymakers to properly train or supervise their subordinates,
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such that the policymakers exercised ‘deliberate indifference’ to the rights of the plaintiff.”
Moran v. Cnty. of Suffolk, 11-CV-3704, 2015 WL 1321685, at *9 (E.D.N.Y. Mar. 24, 2015)
(citing Parker v. City of Long Beach, 563 F. App’x 39 (2d Cir. 2014) (failure to train); Matusick
v. Erie Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice);
Hines v. Albany Police Dep't, 520 F. App’x 5, 7 (2d Cir. 2013) (actions of policymakers);
Schnitter v. City of Rochester, 556 F. App’x 5, 8 (2d Cir. 2014) (failure to train or supervise);
Missel v. Cnty. of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (formal policy and act of a
person with policymaking authority for the municipality)).
“Naked boilerplate allegations against a city are not sufficient to demonstrate a custom,
practice or policy of conducting unlawful arrests.” Brown v. City of New York, 12-CV-3146,
2014 WL 5089748, at *9, n.12 (S.D.N.Y. Sept. 30, 2014); see Plair v. City of New York, 789 F.
Supp. 2d 459, 469 (S.D.N.Y. 2011) (holding that for a Monell claim to survive a motion to
dismiss, a plaintiff must allege “sufficient factual detail” and not mere “boilerplate allegations”
that the violation of the plaintiff’s constitutional rights resulted from the municipality’s custom
or official policy).
Construing Plaintiffs’ Second Amended Complaint liberally, they essentially allege that
because Defendants Kotsidis and Kotsidou contacted the Village of Philmont regarding the
conflict between them, that Defendant Village of Philmont is liable as a co-conspirator. (See
Hamza I, Dkt. No. 50 at 34 [alleging that Defendants Kotsidis and Kotsidou participated in a
“campaign extended to repeated, knowingly false or baseless calls to law enforcement and
municipal officials.”]; Id. at 40 [alleging that “[w]henever a parking dispute arose, Defendants
[Kotsidis and Kotsidou] regularly summoned law enforcement on pretextual complaints”]; Id. at
46 [alleging that Defendants Kotsidis and Kotsidou “have engaged in a campaign of
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36
intimidation, threatening behavior, false accusations, and exploitation of municipal enforcement
mechanisms all in conspiracy with” Defendant Village of Philmont and the Philmont Police
Department]; Id. at 49 [alleging that “Plaintiffs felt specifically targeted by the Village of
Philmont and its Police Department. [Defendant] TKACY admitted that the enforcement action
was initiated only after complaints were made by Defendants [Kotsidis and Kotsidou], even
though the vehicles were legally parked.”]; Id. at 52 [alleging that “the Village Trustees, DOYLE
and TKACY conspired with Defendants [Kotsidis and Kotsidou] to target [Plaintiffs] and have
the vehicles removed solely because they did not want them parked in front of their home or on
the public roadway.”]; Id. at 54 [alleging that “Defendant TKACY explicitly admitted that this
enforcement action was initiated only after retaliatory complaints by Defendants [Kotsidis and
Kotsidou], demonstrating that the purpose of the action was harassment, retaliation, and
discrimination rather than legitimate law enforcement.”]; Id. at 78 [alleging that “the Philmont
Volunteer Fire Department had been dispatched to 16 Elm Street based on photographs and
video surveillance supplied by Defendant [Kotsidou] from 14 Elm Street.”]; Id. at 79 [alleging
that Defendant Kotsidou “instigated a complaint to Code Enforcement and that Defendant
KLIMA relayed that complaint to the fire department.”]; Id. at 84 [alleging that “Defendants also
submitted selectively edited surveillance footage and complaints to the Village of Philmont and
PHILMONT POLICE, not to address legitimate concerns but to weaponize government authority
as a tool of harassment and defamation.”]; Id. at 85 [alleging that “Defendant [Kotsidou]
complained to Defendant KLIMA, the Village of Philmont Code Enforcement Officer regarding
the legal fires and make further complaints regarding anything [s]he could fabricate.”]; Id. at 87
[alleging that Defendant Kotsidou “had a pattern of seeking alternate enforcement channels when
unsatisfied with previous complaints.”]; Id. at 104 [alleging that Defendants Kotsidis and
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Kotsidou’s “history of false reports to police and municipal officials, establishes coordinated
joint action with state actors sufficient to trigger § 1983 liability.”]; Id. at 106 [alleging that
Defendants Kotsidis and Kotsidou’s “ongoing use of police and municipal channels, supports a
claim of conspiracy under 42 U.S.C. § 1985(3), as Defendants acted with discriminatory animus
toward Plaintiffs—two openly gay men—in an effort to deprive them of equal protection and due
process.”]; Id. at 107 [alleging that “Defendants’ conduct, when attributable to the state through
misuse of governmental reporting and enforcement channels, constitutes actionable deprivation
of rights under § 1983.”]; Id. at 111 [alleging that “Village of Philmont officials and police
continue to target Plaintiffs . . . by dispatching officers to their property in response to
complaints by Defendants [Kotsidis and Kotsidou]”].) These assertions are insufficient to
establish municipal liability. The response of law enforcement when summoned, is not a
violation of constitutional rights without more.
To the extent that Plaintiffs allege that Defendant Village of Philmont revoked their tax-
exempt status for some improper purpose, I recommend that such claim be dismissed. (Hamza I,
Dkt. No. 50 at 128-33.) The Second Amended Complaint alleges in conclusory terms that
“Village officials improperly revoked [Plaintiffs’] exemption for 2025, acting in coordination
with Defendants.” (Dkt. No. 50 at 129.) Plaintiffs allege that the revocation was motivated by
discriminatory animus. (Id. at 130.)
“To prevail on a [section] 1983 claim of . . . discrimination in violation of equal
protection, the law requires a plaintiff to prove the defendant’s underlying . . . discriminatory
intent or purpose.” DiStiso v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (internal quotation marks
omitted). Here, Plaintiffs fail to allege facts plausibly suggesting discriminatory intent or
purpose. Plaintiffs identify as homosexual men (Hamza I, Dkt. No. 50 at 74, 81, 103, 104, 106,
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146) but fail to allege any facts plausibly suggesting sex discrimination by Defendant Village of
Philmont. (See generally Hamza I, Dkt. No. 50.)
In addition, Plaintiffs allege that the revocation of tax-exempt status was taken in
retaliation for their engagement in protected speech. (Hamza I, Dkt. No. 50 at 132.) “[A]s a
general matter the First Amendment prohibits government officials from subjecting an individual
to retaliatory actions” for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256
(2006). To state a claim for retaliation pursuant to the First Amendment and 42 U.S.C. § 1983, a
plaintiff must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant
took adverse action against the plaintiff, and (3) that there was a causal connection between the
protected speech [or conduct] and the adverse action.” Dolan v. Connolly, 794 F.3d 290, 294 (2d
Cir. 2015) (citing Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). To constitute protected
speech, it must deal with “any matter of political, social or other concern to the community.”
Golub v. City of New York, 334 F. Supp. 2d 399, 407 (S.D.N.Y. 2004) (citing Mandell v. Cnty. of
Suffolk, 316 F.3d 368 (2d Cir. 2003)).
The Second Amended Complaint fails to allege facts plausibly suggesting that (1)
Plaintiffs engaged in protected speech or conduct, and (2) the revocation of their tax-exempt
status was causally connected to their protected speech or conduct. Plaintiffs’ allegation that
they engaged in “public speech, complaints to officials, and charitable operations” without
additional information fails to allege facts plausibly suggesting that Plaintiffs engaged in
protected speech or conduct. (Hamza I, Dkt. No. 50 at 132.) Moreover, although the Second
Amended Complaint alleges that the revocation of tax-exempt status followed Plaintiffs’ “public
speech, complaints to officials, and charitable operations” (id.), Plaintiffs fail to set forth any
facts plausibly suggesting a causal connection between the two. (See generally Hamza I, Dkt.
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No. 50.) Indeed, the Second Amended Complaint fails to allege when Plaintiffs allegedly
engaged in “public speech, complaints to officials, and charitable operations” (Hamza I, Dkt. No.
50 at 132) and when their tax-exempt status was revoked. (Compare Hamza I, Dkt. No. 50 at
129 [alleging merely that Plaintiffs’ tax-exempt status was “revoked . . . for 2025”], with Hamza
I, Dkt. No. 50 at 132 [alleging that at some unspecified time “Plaintiffs engaged in protected
activity—including public speech, complaints to officials, and charitable operations—after
which Village actors and their private confederates took adverse actions (revoking tax-exempt
status . . .) in retaliation substantially motivated by that protected conduct, causing constitutional
injury.”].) Hence, the Court cannot infer a causal connection based on temporal and Plaintiffs
fail to set forth any additional facts plausibly suggesting a causal connection between their
protected activity and the adverse action.
To the extent that Plaintiffs’ Equal Protection claim is premised on alleged threats to tow
their vehicles and requests to remove their vehicles from the municipal lot, I recommend that it
be dismissed for failure to state a claim upon which relief may be granted.
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall
“deny to any persons within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. This constitutional provision is “essentially a direction that all persons
similarly situated be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439 (1985). Pursuant to Village of Willowbrook v. Olech, 528 U.S. 562 (2000), an equal
protection plaintiff may assert a so-called “class of one” claim by alleging that “they were
intentionally treated differently from others similarly situated and that there was no rational basis
for this difference in treatment.” Doe v. Vill. of Mamaroneck, 462 F. Supp .2d 520, 558
(S.D.N.Y. 2006). A plaintiff may also assert a “selective enforcement” claim by showing they
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were treated differently “based on impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a
person.” Savino v. Town of Southeast, 983 F. Supp. 2d 293, 301 (S.D.N.Y. 2013). Whether
plaintiffs attempt to pursue a “selective enforcement” or a “class of one” equal protection claim,
either theory “require[s] a showing of similarly situated individuals or groups who were treated
differently.” Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 693
(S.D.N.Y. 2011).
The Second Amended Complaint fails to assert facts plausibly suggesting that other
individuals with suspended registrations were treated differently than Plaintiffs.13 (See generally
Hamza I, Dkt. No. 50.) Plaintiffs allege in a conclusory fashion that Defendant Village of
Philmont was “motivated by discriminatory animus against Plaintiffs on the basis of their sexual
orientation and national origin, as well as in retaliation for Plaintiffs’ prior exercise of legal
rights.” (Hamza I, Dkt. No. 50 at 50.) However, Plaintiffs fail to provide any link between their
sexual orientation or national origin and Defendant Village of Philmont’s enforcement efforts to
keep vehicles with suspended registrations off the public roadway.14 In addition, Plaintiffs fail to
allege facts plausibly suggesting a causal connection between their exercise of legal rights and
the threat to tow their vehicles with suspended registrations. (See generally Hamza I, Dkt. No.
50.)
13 	Indeed, the Second Amended Complaint alleges that third-party Shawn Laurange
“fearing retaliation or towing by the Philmont Police, began parking exclusively in the Canal
Street Municipal Lot and walking home.” (Hamza I, Dkt. No. 50 at 45.) Hence, other
individuals were also concerned about enforcement efforts by Defendant Village of Philmont.
14 	See People v. Mortel, 197 A.D.3d 196, 215 (N.Y. App Div. 2d Dep’t 2021) (holding that
“where law enforcement officers determine that a vehicle’s registration has been suspended, this
suspension furnishes a valid basis to impound the vehicle.”).
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To the extent that Plaintiffs assert that Plaintiff Hamza was discriminated against based
on the denial of his volunteer firefighter application, I recommend that it be dismissed. The
Second Amended Complaint fails to allege facts plausibly suggesting that Plaintiff Hamza’s
sexual orientation was causally connected with the denial of his application. (See generally
Hamza I, Dkt. No. 50.) In addition, to the extent that Plaintiffs assert a retaliation claim based on
the denial of Plaintiff Hamza’s volunteer firefighter application, the Second Amended Complaint
fails to allege facts plausibly suggesting that (1) Plaintiff Hamza engaged in protected speech or
conduct, and (2) his speech or conduct was causally connected to the denial of his application.
(Id.) Although the Second Amended Complaint alleges that Defendant Detzel informed Plaintiff
Hamza that “the rejection stemmed from a Board perception that Plaintiff [Hamza] was a ‘rabble
rouser,’” (Hamza I, Dkt. No. 50 at 21) Plaintiffs fail to allege Plaintiff Hamza’s involvement in
any matter of political, social or other concern to the community and hence, fail to allege
involvement in protected activity.
As a result, I recommend that in the alternative, Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendant Village of Philmont be dismissed for failure to state a claim upon which
relief may be granted.
d. 	Claims Against Defendant Doyle
It is well-settled that to establish a defendant’s individual liability in a suit brought under
Section 1983, a plaintiff must show “the defendant’s personal involvement in the alleged
constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(citations omitted). A plaintiff must “allege a tangible connection between the acts of a
defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There
is “no special rule for supervisory liability,” and “a plaintiff must plead and prove ‘that each
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Government-official defendant, through the official’s own individual actions, has violated the
Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009)). The Second Circuit has explained that “[t]he factors necessary
to establish a [§ 1983] violation will vary with the constitutional provision at issue because the
elements of different constitutional violations vary,” and “[t]he violation must be established
against the supervisory official directly.” Tangreti, 983 F.3d at 618 (second alteration in
original) (internal quotations and citations omitted).
The Second Amended Complaint alleges that Defendant Doyle—as chief of the Village
of Philmont Police Department—directed Defendant Tkacy to tow Plaintiffs’ vehicles (if they
were not removed from the public roadway) after the Department of Motor Vehicles system
indicated that the vehicles’ registrations were suspended. (Hamza I, Dkt. No. 50 at 47-52.) The
Second Amended Complaint also alleges that Defendant Doyle was “motivated by
discriminatory animus against Plaintiffs on the basis of their sexual orientation and national
origin, as well as in retaliation for Plaintiffs’ prior exercise of legal rights.” (Id. at 50.)
Further, the Second Amended Complaint alleges that Defendant Doyle directed
subordinates to get Plaintiffs’ vehicles out of the municipal lot “and claimed the municipal lot
needed to be closed for construction, even though no closure was imminent.” (Hamza I, Dkt.
No. 50 at 112.)
Based on these factual allegations, Plaintiffs appear to assert a claim of discrimination, a
claim of retaliation, and a claim that their rights to equal protection of the law was violated.15
15 	The elements of retaliation, discrimination, and Equal Protection Clause claims are set
forth above in Part IV.B.3.c. of this Order and Report-Recommendation.
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First, with respect to a claim of discrimination, Plaintiffs fail to allege facts plausibly
suggesting that their sexual orientation or national origin were causally connected with
Defendant Doyle’s direction to Defendant Tkacy to have Plaintiffs either move their vehicles
with suspended registration off the public roadway or to tow the vehicles. (See generally Hamza
I, Dkt. No. 50.) “Simply being a member of a protected class, without something more to link
that status to the action in question, is not enough to raise a reasonable inference of
discriminatory animus.” Cole v. Board of Trustees of Northern Ill. Univ., 838 F.3d 888, 900 (7th
Cir. 2016); see also Canady v. Union 1199/SEIU, 527 F. Supp. 3d 515, 516 (W.D.N.Y. 2021)
(“simply falling into a protected category is not enough”); Perry v. County of Westchester, 06-
CV-3000, 2008 WL 11438085, at *17 (S.D.N.Y. Mar. 31, 2008) (“Plaintiff's membership in a
protected class in and of itself does not establish discriminatory animus”).
Second, with respect to their retaliation claim, Plaintiffs fail to allege facts plausibly
suggesting any causal connection between their “prior exercise of legal rights” with Defendant
Doyle’s alleged direction to Defendant Tkacy to tow Plaintiffs’ unregistered vehicles from the
public roadway.16 (See generally Dkt. No. 50.)
16 	Temporal proximity may plausibly suggest a causal connection for a retaliation claim
pursuant to the First Amendment and 42 U.S.C. § 1983. See Allah v. Lawson, 23-CV-0785,
2025 WL 1033836, at *8 (N.D.N.Y. Feb. 18, 2025) (Lovric, M.J.) (citing Brandon v. Kinter, 13-
CV-0939, 2023 WL 2382637, at *23 (N.D.N.Y. Mar. 6, 2023) (Sannes, C.J.) (finding that three
weeks between the grievances and adverse action was sufficiently close temporal proximity to
plausibly infer retaliatory intent and causal connection); Zaire v. Doe, 03-CV-0629, 2006 WL
1994848, at *5 (N.D.N.Y. July 13, 2006) (Scullin, J.) (finding that two weeks between Plaintiff's
protected speech and the adverse action sufficient circumstantial evidence of retaliation for
purposes of a causal connection)), report and recommendation adopted by 2025 WL 814990
(N.D.N.Y. Mar. 14, 2025) (Kahn, J.). However, the Second Amended Complaint fails to allege
when Plaintiffs engaged in “prior exercise [of their] legal rights” that preempted the alleged
threat to tow their unregistered vehicles. (See generally Hamza I, Dkt. No. 50.) Hence, the
Court cannot infer that a causal connection exists based on temporal proximity.
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Third, with respect to their Equal Protection Clause claim, Plaintiffs fail to allege facts
plausibly suggesting that they were treated differently from others who parked in the municipal
lot.
As a result, I recommend that in the alternative, Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendant Doyle be dismissed for failure to state a claim upon which relief may be
granted.
e. 	Claims Against Defendants Detzel, Cropper, and Macfarlane
The Second Amended Complaint alleges that Defendants Detzel and Cropper are trustees
on the Board of the Village of Philmont (Hamza I, Dkt. No. 50 at 4-5, 8-9) and Defendant
Macfarlane is chairman of the Village of Philmont Planning Board (id. at 4, 9).
With respect to Defendant Detzel, Plaintiffs allege that on June 26, 2025, Defendant
Detzel emailed Plaintiff Hamza and inquired about Plaintiff Hamza’s DD 214 form.17 (Hamza I,
Dkt. No. 50 at 108.) Plaintiffs allege that after Plaintiff Hamza’s exchange with Defendant
Detzel regarding his Form DD 214, Defendant Macfarlane posted comment on a Village of
Philmont Facebook group alleging that Plaintiff Hamza owed back taxes (but Plaintiff Hamza
does not own property in Philmont). (Id. at 109.) Plaintiffs allege that Defendant Macfarlane
then posted on the Facebook page demanding Plaintiff Hamza produce his DD 214. (Id.)
Plaintiffs allege that shortly after Defendant Macfarlane’s post, an anonymous poster commented
on one of Plaintiff Hamza’s photos referring to stolen valor. (Id. at 110.) Based on the timing of
Defendant Macfarlane’s post and the comment of the anonymous poster, Plaintiffs surmise that
Defendant Detzel informed others about their email exchange. (Id. at 52, 110-111.)
17 	“Form DD–214 is a Report of Separation issued by the United States Department of
Defense pursuant to a formal request.” Nolan v. Holmes, 334 F.3d 189, 202 (2d Cir. 2003).
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Plaintiffs allege that Defendant Detzel informed Plaintiff Hamza that his volunteer
firefighter application was denied due to the Board’s perception of Plaintiff Hamza as a “rabble
rouser.” (Hamza I, Dkt. No. 50 at 21.)
Plaintiffs allege that Defendants Detzel, Macfarlane, and Cropper have driven their
vehicles down Elm Street in the Village of Philmont “without any apparent lawful purpose.”
(Hamza I, Dkt. No. 50 at 28.) Plaintiffs allege that Defendant Cropper filmed Plaintiff Hamza’s
minor son and another child in the public Canal Street Municipal Lot. (Id. at 27-28.)
Section 1983 provides redress for a deprivation of federally protected rights by persons
acting under color of state law. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
155-57 (1978). To state a claim under section 1983, 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 v. Atkins, 487
U.S. 42, 48-49 (1988). Private parties are therefore not generally liable under the statute. Sykes
v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the
Government, not private parties.”).
Although Plaintiffs bring claims against Defendants Macfarlane and Cropper as
municipal employees, it is clear the alleged actions they undertook were in their private
capacities.
“[A] public official’s social-media activity constitutes state action under § 1983 only if
the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to
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46
exercise that authority when he spoke on social media.” Lindke v. Freed, 601 U.S. 187, 189
(2024).
The Second Amended Complaint is devoid of allegations plausibly suggesting that
Defendant Macfarlane’s Facebook posts were an exercise of his authority as a Village of
Philmont trustee. (See generally Hamza I, Dkt. No. 50.) In addition, the Second Amended
Complaint fails to allege facts plausibly suggesting that Defendant Macfarlane possessed
authority to speak on social media on behalf of the Village of Philmont. (Id.)
In addition, Plaintiffs’ allegations related to Defendant Cropper involve the driving of his
vehicle down a public roadway and filming on public property. It is difficult to fathom how the
driving of a vehicle down a public roadway could ostensibly violate Plaintiffs’ constitutional
rights. Further, the Second Amended Complaint is devoid of factual allegations plausibly
suggesting that the actions of Defendant Cropper in driving down Elm Street or filming on
public property was taken in the context of his capacity as Village of Philmont trustee. (See
generally Hamza I, Dkt. No. 50.)
With respect to Defendant Detzel, Plaintiffs allegations that he inquired about Plaintiff
Hamza’s Form DD 214 and informed Plaintiff that his volunteer firefighter application was
denied because of his perceived status as a “rabble rouser” fail to allege constitutional violations.
Construing Plaintiffs’ allegations liberally, they may have intended to allege a retaliation claim
against Defendant Detzel based on the denial of Plaintiff’s volunteer application.18 However,
18 	“[A]s a general matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions” for engaging in protected speech. Hartman v.
Moore, 547 U.S. 250, 256 (2006). To state a claim for retaliation pursuant to the First
Amendment and 42 U.S.C. § 1983, a plaintiff must allege “(1) that the speech or conduct at issue
was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there
was a causal connection between the protected speech [or conduct] and the adverse action.”
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Plaintiffs fail to allege that (1) they engaged in any protected speech or conduct, or (2) that there
was a causal connection between the protected conduct and the denial of Plaintiff Hamza’s
application.
Moreover, Defendant Detzel’s inquiry about Plaintiff Hamza’s veteran status did not
appear to have been in Defendant Detzel’s capacity as a trustee on Defendant Village of
Philmont’s Board. To the extent that Defendant Detzel’s inquiry was in the context of his
capacity as a state actor, Plaintiffs’ claim still fails because they fail to allege (1) they engaged in
any protected speech or conduct, (2) that Defendant Detzel’s inquiry was an adverse action, and
(3) that there was a causal connection between the protected conduct and the inquiry about
Defendant Hamza’s veteran status.
In addition, to the extent that the Second Amended Complaint is liberally construed as
asserting a discrimination claim based on the denial of Plaintiff Hamza’s volunteer firefighter
application, I recommend that it be dismissed for failure to state a claim upon which relief may
be granted. (Hamza I, Dkt. No. 50 at 21-23.) To establish an Equal Protection violation, a
plaintiff must prove purposeful discrimination directed at an identifiable or suspect class. See
Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). However, in 2019, the Second Circuit
stated that “neither this court nor the Supreme Court has recognized § 1983 claims for sexual
orientation discrimination in public employment.” Naumovski v. Norris, 934 F.3d 200, 219 (2d
Cir. 2019). Moreover, even assuming that such a claim could be brought, the Second Amended
Complaint fails to allege facts plausibly suggesting any connection between the denial of
Plaintiff Hamza’s volunteer firefighter applicable and his sexual orientation. (See generally
Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (citing Espinal v. Goord, 558 F.3d 119, 128
(2d Cir. 2009)).
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Hamza I, Dkt. No. 50.) Even assuming that Plaintiffs alleged prior discriminatory remarks
regarding his sexual orientation, the Second Circuit has held that “‘stray remarks’ . . . do not
constitute sufficient indicia of sexual orientation discrimination.” Cf. Naumovski, 934 F.3d at
216; Rodriquez-Coss v. Sessions, 16-CV-0633, 2018 WL 3213290, at *15 (D. Conn. June 29,
2018).
As a result, I recommend that in the alternative, Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendants Detzel, Cropper, and Macfarlane be dismissed for failure to state a
claim upon which relief may be granted.
f. 	Claims Against Defendants U-Haul Inc. and Hudson Rentals
and Garden Design
Plaintiffs allege that Defendant Kotsidis rented a truck from Defendant U-Haul and used
the truck to obstruct Plaintiffs’ access to their property. (Hamza I, Dkt. No. 50 at 48, 110, 115-
124, 143-144, 149.) The Second Amended Complaint alleges that Defendant Hudson Rentals
and Garden Design owns the U-Haul, Inc. branch in Hudson, New York where Defendants
Kotsidis and Kotsidou rented the van at issue. (Id. at 5, 116.)
As set forth above in Part IV.B.3.b., an action under 42 U.S.C. § 1983 cannot be
maintained unless the challenged conduct was attributable at least in part to a person acting
under color of state law. See Chan v. City of New York, 1 F.3d 96, 106 (2d Cir. 1993) (citing
Rendell-Baker v. Kohn, 457 U.S. 830, 835, (1982); Dwares v. City of New York, 985 F.2d 94, 98
(2d Cir. 1993)).
Under any of the applicable tests, the Second Amended Complaint fails to allege facts
plausibly suggesting that Defendants U-Haul and Hudson Rentals and Garden Design acted
“under color of state law.”
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As a result, I recommend that in the alternative, Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendants U-Haul and Hudson Rentals and Garden Design be dismissed for
failure to state a claim upon which relief may be granted.
g. 	Claims Against Defendant Tkacy
The Second Amended Complaint alleges that Defendant Tkacy is a police officer
employed by the Philmont Police Department. (Hamza I, Dkt. No. 50 at 5, 9.) Plaintiffs allege
that Defendant Tkacy threatened to tow Plaintiffs’ vehicles if they were not moved after
identifying the vehicles as having suspended registrations. (Id. at 47-53.) Plaintiffs allege that
Defendants Tkacy “previous[ly exhibited] discriminatory conduct toward Plaintiff HAMZA
based on his sexual orientation.” (Id. at 48.)
Plaintiffs allege that despite informing Defendant Tkacy that Defendants Kotsidis and
Kotsidou placed bicycles in the public roadway, he failed to move the bicycles. (Hamza I, Dkt.
No. 50 at 42.)
These allegations fail to allege a constitutional violation by Defendant Tkacy. As a
police officer, Defendant Tkacy was tasked with enforcing the vehicle and traffic laws including
issuing citations when vehicles on public roadways are unregistered or uninspected. See Dan v.
New York, 24-CV-1233, 2025 WL 1448314, at *10 (N.D.N.Y. May 20, 2025) (Evangelista, M.J.)
(“[T]here is well-settled law that a state has a right to enforce its vehicle and traffic laws
requiring licensing and registration of motor vehicles. . . . Thus, plaintiff’s constitutional rights
were not violated by this requirement nor the requirement that he pay the impound fee for the
return of his vehicle.”).
Moreover, the fact that Defendant Tkacy allegedly previously made discriminatory
comments towards Plaintiffs “cannot form the basis of a § 1983 claim.” Kelly v. Rice, 375 F.
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Supp. 3d 203, 209-10 (S.D.N.Y. 2005) (citing Haussman v. Fergus, 894 F. Supp. 142, 149
(S.D.N.Y. 1995) (offensive racial comments cannot form the basis of a § 1983 claim); Wright v.
Santoro, 714 F. Supp. 665, 666-67 (S.D.N.Y. 1989) (“‘discriminatory statements’ reflecting
racial prejudice not actionable under § 1983 where not shown to be connected with physical
injury.”), aff’d, 891 F.2d 278 (2d Cir. 1989); Zeno v. Cropper, 650 F. Supp. 138, 141 (S.D.N.Y.
1986) (“the use of [vile] language, no matter how abhorrent or reprehensible, cannot form the
basis for a § 1983 claim”)).
Finally, it is well settled that where the intended beneficiaries of a particular law are
entirely generalized, the law does not create a property interest protected by the Due Process
Clause. Harrington v. Cnty. of Suffolk, 607 F.3d 31, 34-35 (2d Cir. 2010) (citing West Farms
Assocs. v. State Traffic Com’n of State of Conn, 951 F.2d 469, 472-73 (2d Cir. 1991)
(“[U]niversal benefits are not property interests protected by the Due Process Clause.”)). “[T]he
duty to investigate criminal acts (or possible criminal acts) almost always involves a significant
level of law enforcement discretion. That discretion precludes any “legitimate claim of
entitlement” to a police investigation.” Harrington, 607 F.3d at 35 (citations omitted). The
general “duty” of police departments to maintain public order and safety is not a duty owed to
any particular person or group. Id. Hence, there is no constitutional violation for Defendant
Tkacy’s alleged failure to remove Defendant Kotsidis and Kotsidou’s bicycles from the roadway.
As a result, I recommend in the alternative, that Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendant Tkacy be dismissed for failure to state a claim upon which relief may be
granted.
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h. 	Claims Against Defendant Ingersoll
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. In contrast, “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));
Shtrauch v. Dowd, 651 F. App’x 72, 73 (2d Cir. 2016) (summary order) (“[J]udicial immunity
does not bar a claim for prospective injunctive and declaratory relief.”).
Plaintiffs appear to attempt to sidestep the doctrine of judicial immunity by stating that
they “seek only declaratory or prospective relief as permitted by law” against Defendant
Ingersoll. (Hamza I, Dkt. No. 50 at 5, 6.)
Nevertheless, a court’s ability to award injunctive relief against a judicial officer under
Section 1983 is strictly limited. Under Section 1983, “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. Moreover, “[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);
Shtrauch, 651 F. App’x at 74 (holding that plaintiff was not entitled to declaratory relief against
judicial officer where plaintiff “alleges only past conduct and does not seek to prevent an
ongoing or future violation of federal law”).
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Here, Plaintiffs allege that Plaintiff Hamza entered a plea agreement related to an
environmental conservation law misdemeanor and the “plea deal was forwarded to the Village of
Philmont Court, where Defendant Judge CARLA INGERSOL[L] presided.” (Hamza I, Dkt. No.
50 at 95.) In addition, Plaintiffs allege that Plaintiff Hamza requested that Defendant Ingersoll
recuse herself from Plaintiff’s criminal matter because of “her involvement as a defendant in
Plaintiffs’ civil rights case.” (Id.) However, the Second Amended Complaint fails to set forth
the outcome of that motion. (See generally Hamza I, Dkt. No. 50.) Further, Plaintiffs allege that
Defendant Ingersoll “declined to dismiss the charge despite notice that the citation was
pretextual and retaliatory.” (Hamza I, Dkt. No. 50 at 97.)
I find that Plaintiffs are not entitled to injunctive relief in this action against Defendant
Ingersoll because 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).
“[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.); see Brik v. Brodie, 23-CV-4330, 2023
WL 4373557, at *1 (E.D.N.Y. July 6, 2023) (dismissing the plaintiff’s claims for injunctive
relief against judge, inter alia, because plaintiff “does not seek to remedy a harm that is truly
prospective, [and plaintiff] does [not] show any entitlement to declaratory relief” based on the
judge’s past conduct).
As a result, I recommend that in the alternative, Plaintiffs’ claims pursuant to 42 U.S.C. §
1983 against Defendant Ingersoll be dismissed for failure to state a claim upon which relief may
be granted.
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i. 	Claims Against Defendant Klima
Plaintiffs’ allegations related to Defendant Klima are that she (1) relayed a complaint
made by Defendant Kotsidou to the fire department (Hamza I, Dkt. No. 50 at 79), (2) sent an
email to Plaintiff Hamza regarding having fires in his backyard (id. at 85-87), (3) threatened to
issue a fine to Plaintiffs for an alleged structure on their property (id. at 88), and (4) failed to take
action regarding Plaintiffs’ complaints regarding the lights and cameras on Defendants Kotsidis
and Kotsidou’s house (id. at 89). (See generally Hamza I, Dkt. No. 50.)
Plaintiffs do not appear to assert any federal claims related to Defendant Klima’s alleged
action in relaying a complaint made by Defendant Kotsidou to the fire department. (Hamza I,
Dkt. No. 50 at 78-80.) To the extent that Plaintiffs attempt to enforce criminal violations, “there
is no private cause of action to enforce criminal violations.” Whitbeck v. Otsego Cnty., 25-CV-
0673, 2025 WL 2717564, at *6 (N.D.N.Y. Sept. 24, 2025) (Lovric, M.J.) (citing Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.”); Walker v. CIBC Ltd., 20-CV-1337, 2021 WL
3518439, at *5 (N.D.N.Y. Apr. 13, 2021) (Hummel, M.J.) (“It appears plaintiff is either seeking
the criminal prosecution of an individual or individuals or a law enforcement investigation,
which is beyond this Court’s jurisdiction.”), report-recommendation adopted by 2021 WL
3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden v. Ortiz, 12-CV-1244, 2013 WL
1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (D’Agostino, J.) (holding that “there is no private right
of action to enforce either state or federal criminal statutes.”)), report and recommendation
adopted as modified by, 2025 WL 2959467 (N.D.N.Y. Oct. 20, 2025) (Nardacci, J.).
To the extent that Plaintiffs assert that their due process rights were violated by
Defendant Klima’s email that cautioned Plaintiffs to stop having fires in their back yard or risk
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being fined (Hamza I, Dkt. No. 50 at 85, 87), I recommend that it be dismissed for failure to state
a claim upon which relief may be granted.
To state a claim for deprivation of property without due process of law, a plaintiff must:
(1) identify a property right; (2) show that the state has deprived him of that right; and (3) show
that the deprivation was effected without due process. Local 342, Long Island Pub. Serv.
Employees v. Town Bd. of the Town of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994); Nat'l Fuel
Gas Supply Corp. v. Town of Wales, 904 F. Supp. 2d 324, 331 (W.D.N.Y. 2012).
Assuming that Plaintiffs’ right to have an open fire in their backyard qualifies as a
protected property interest under the Due Process Clause, Plaintiffs fail to allege that Defendant
Klima deprived them of that right; instead Plaintiffs allege only that Defendant Klima threatened
to fine them if they continued to do so. This is insufficient to state a claim under 42 U.S.C. §
1983. Anderson v. Cameron, 13-CV-0578, 2016 WL 11259015, at *4 (W.D.N.Y. Sept. 14,
2016) (holding that the defendant’s alleged threat to fine the plaintiff if the plaintiff continued to
mine his land insufficient to state a claim under 42 U.S.C. § 1983), report and recommendation
adopted by 2017 WL 2240253 (W.D.N.Y. May 23, 2017). “[T]here can be no recovery under §
1983 for an attempted constitutional violation; only a claim of actual deprivation is cognizable
under the statute.” Lyddy v. Bridgeport Bd. of Educ., 06-CV-1420, 2007 WL 2697452, at *5 (D.
Conn. Sept. 11, 2007); Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995); Mozzochi v. Borden,
959 F.2d 1174, 1180 (2d Cir. 1992); Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir.
1990); Dooley v. Reiss, 736 F.2d 1392, 1394-95 (9th Cir. 1984); Landrigan v. City of Warwick,
628 F.2d 736, 742 (1st Cir. 1980); Ashford v. Skiles, 837 F. Supp. 108, 115 (E.D. Pa. 1993);
Defeo v. Sill, 810 F. Supp. 648, 658 (E.D. Pa. 1993). “[T]he mere attempt to deprive a person of
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his [constitutional] rights is not, under usual circumstances, actionable under section 1983.”
Andree v. Ashland County, 818 F.2d 1306, 1311 (7th Cir. 1987).
Moreover, to the extent that this claim is asserted as a substantive due process claim, it
also fails. “Substantive due process is an outer limit on the legitimacy of governmental action.”
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). “It does not forbid
governmental actions that might fairly be deemed arbitrary or capricious and for that reason
correctable in a state court lawsuit seeking review of administrative action.” Natale, 170 F.3d at
263. Rather, “substantive due process standards are violated only by conduct that is so
outrageously arbitrary as to constitute a gross abuse of governmental authority.” Nat'l Fuel Gas
Supply Corp., 904 F. Supp. 2d at 332 (quoting Natale, 170 F.3d at 263); see, e.g., Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (stating that “only the most egregious official
conduct can be said to be arbitrary in the constitutional sense”); Silverman v. Barry, 845 F.2d
1072, 1080 (D.C. Cir. 1988) (holding that “[o]nly a substantial infringement of state law
prompted by personal or group animus, or a deliberate flouting of the law that trammels
significant personal or property rights, qualifies for relief under § 1983”). It cannot be said that
Defendant Klima’s conduct in sending an email threatening Plaintiffs with fines for having fires
in their backyard, was “so outrageously arbitrary as to constitute a gross abuse of governmental
authority.” Natale, 170 F.3d at 263; see Anderson, 2016 WL 11259015, at *5 (holding that the
defendant’s letter threatening the plaintiff with fines for conducting mining operations on his
property without a permit was not so outrageously arbitrary as to constitute a gross abuse of
governmental authority).
To the extent that Plaintiffs assert a claim of retaliation based on Defendant Klima’s
threat to fine Plaintiffs for a structure and sun deck on their property, I recommend that it be
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dismissed for failure to state a claim upon which relief may be granted. As set forth above in
Part IV.B.3.c. of this Order and Report-Recommendation to state a claim for retaliation pursuant
to the First Amendment and 42 U.S.C. § 1983, a plaintiff must allege “(1) that the speech or
conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff,
and (3) that there was a causal connection between the protected speech [or conduct] and the
adverse action.” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (citing Espinal v. Goord,
558 F.3d 119, 128 (2d Cir. 2009)). The Second Amended Complaint fails to set forth what
protected speech or conduct Plaintiffs engaged in. (Hamza I, Dkt. No. 50 at 88-89.) Moreover,
to the extent that Plaintiffs allege that Defendant Klima was retaliating against them “at
[Defendant Kotsidou]’s behest,” this Court has generally held that the causal connection is
attenuated where the alleged retaliatory conduct was in response to a grievance with another
individual. Jones v. Fischer, 10-CV-1331, 2013 WL 5441353, at *21 (N.D.N.Y. Sept. 27, 2013)
(Sharpe, C.J.) (“Retaliation claims have been dismissed when they are supported only by
conclusory allegations that the retaliation was based upon complaints against another
[defendant].”); see, e.g., Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing
retaliation claim against a correctional officer where the only alleged basis for retaliation was a
complaint about a prior incident by another correctional officer); Hare v. Hayden, 09-CV-3135,
2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (“As a general matter, it is difficult to
establish one defendant’s retaliation for complaints against another defendant.”).
Finally, to the extent that Plaintiffs assert an Equal Protection Clause claim against
Defendant Klima for her failure to take enforcement action against Defendants Kotsidis and
Kotsidou, I recommend that it be dismissed for failure to state a claim upon which relief may be
granted. Plaintiffs fail to allege that anyone similarly situated to them was not threatened with a
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fine. For example, Plaintiffs do not allege that others with a “‘structure’ and sun deck” were not
threatened with a code violation fine under similar circumstances. The fact that Defendant
Klima failed to take enforcement action against Defendants Kotsidis and Kotsidou for entirely
different behavior—namely, the use of spotlights and surveillance cameras—does not reflect
unequal enforcement of the law.
As a result, I recommend that Plaintiffs’ claims pursuant to 42 U.S.C. § 1983 against
Defendant Klima be dismissed for failure to state a claim upon which relief may be granted.
j. 	Claims Against Defendant Rodriguez in his Individual
Capacity
Plaintiffs allege that Defendant Rodriguez arrested Plaintiff Hamza on August 1, 2025,
and failed to identify his authority and reason for arrest pursuant to N.Y. Crim. Proc. Law §
140.15 or to produce a warrant when requested by Plaintiff Hamza.19 (Hamza I, Dkt. No. 50 at
136-138.)
“[W]hen analyzing constitutional claims of false arrest, courts generally look to the law
of the state where the arrest occurred.” Whitbeck v. Otsego Cnty., 25-CV-0673, 2025 WL
2959467, at *2 (N.D.N.Y. Oct. 20, 2025) (Nardacci, J.) (citing Russo v. City of Bridgeport, 479
F.3d 196, 203 (2d Cir. 2007)). “To establish a claim of false arrest under New York law, the
plaintiff must show that: (1) the defendant intended to confine him, (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.” Whitbeck, 2025 WL 2959467, at *2 (quoting
Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975)). Confinement is otherwise privileged
19 	A violation of New York Crim. Proc. Law § 140.15 “does not suffice as a constitutional
violation.” Murphy v. Sr. Investigator Neuberger, 94-CV-7421, 1996 WL 442797, at *8 n.5
(S.D.N.Y. Aug. 6, 1996); accord Kondziela v. Cnty. of Erie, 09-CV-0601, 2011 WL 4055163, at
*4 (W.D.N.Y. Sept. 12, 2011).
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when officers “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.” Id. (quoting Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996)). “Whenever there has been an arrest and imprisonment without a
warrant, the officer has acted extrajudicially and the presumption arises that such an arrest and
imprisonment are unlawful.” Broughton, 37 N.Y.2d at 458 (internal citations omitted).
Based on the allegations in the Second Amended Complaint it is entirely unclear whether
Plaintiff Hamza’s arrest was done without a warrant. (Hamza I, Dkt. No. 50 at 136 [alleging that
Plaintiff Hamza was arrested by Defendant Rodriguez “without producing or even asserting the
existence of an arrest warrant”]; Id. at 137 [alleging “Plaintiff HAMZA asked Trooper Rodriguez
whether there was a warrant and whether Miranda warnings were required; Rodriguez responded
that he did not have to provide either. If the arrest was pursuant to a warrant, Rodriguez was
required to inform Plaintiff [Hamza] that a warrant had been issued and, upon request, show it or
show it as soon thereafter as practicable.”]; Id. at 138 [alleging “If the arrest was warrantless,
Rodriguez was required to state his authority and reason for arrest unless impracticable.”]; see
generally Hamza I, Dkt. No. 50.)
Plaintiffs’ conjecture is insufficient to plausibly suggest that Plaintiff Hamza’s arrest was
without a warrant or “not otherwise privileged.” Indeed, Plaintiffs allege that a New York State
Trooper “was physically present” during the incident giving rise to Plaintiff Hamza’s arrest
(Hamza I, Dkt. No. 50 at 140), which directly undermines Plaintiff’s assertion that the arrest is
based on “video evidence allegedly manufactured or manipulated” by Defendants Kotsidis and
Kotsidou (id. at 136). Further, pursuant to New York Crim. Proc. Law § 140.10(1)(a), a police
officer may arrest a person for any offense when he or she has reasonable cause to believe that
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such person has committed such offense in his or her presence. Hence, a warrant was not
required for Plaintiff Hamza’s arrest if the events giving rise to the criminal charges occurred in
the officer’s presence.
Moreover, although Plaintiffs highlight the “six week” delay between the incident and
Plaintiff Hamza’s arrest, officers are not required to make an arrest as soon as probable cause
exists. Indeed, the constitution is primarily concerned with delays following an arrest, not prior.
Aurecchione v. Falco, 22-CV-4538, 2025 WL 779278, at *5 (S.D.N.Y. Mar. 7, 2025) (citing
United States v. Pabon, 817 F.3d 164, 179-81 (2d Cir. 2017)).
Finally, the Second Amended Complaint fails to describe the relevant events leading up
to Plaintiff Hamza’s the arrest. As such, the Second Amended Complaint fails to allege facts
plausibly suggesting that Defendant Rodriguez falsely arrested Plaintiff Hamza. See Parrish v.
Orange Cnty. Law Enforcement Agency-M.P.D., 25-CV-1674, 2025 WL 2977797, at *5
(S.D.N.Y. Oct. 20, 2025) (finding that the plaintiff failed to plausibly suggest a false arrest claim
where the complaint did not describe “the relevant events leading up to and during the arrest”).
As a result, I recommend that to the extent the Second Amended Complaint is construed
as asserting a false arrest/unlawful seizure claim against Defendant Rodriguez in his individual
capacity pursuant to the Fourth Amendment and 42 U.S.C. § 1983, it be dismissed for failure to
state a claim upon which relief may be granted.
To the extent that Plaintiffs assert a retaliation claim against Defendant Trooper in his
individual capacity I recommend that it be dismissed for failure to state a claim upon which relief
may be granted. As set forth above in Part VI.B.3.i. of this Order and Report-Recommendation,
“it is difficult to establish one defendant’s retaliation for complaints against another defendant.”
Hare v. Hayden, 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011). Plaintiffs’
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conclusory assertion that “[t]he arrest was clearly retaliatory, carried out in concert with or under
pressure from private individuals targeted in Plaintiff’s [sic] earlier lawsuit, and designed to
intimidate, silence,” (Hamza I, Dkt. No. 50 at 139) is insufficient to plausibly allege a causal
connection between Plaintiffs’ lawsuit against other actors and entities and Defendant
Rodriguez’s arrest of Plaintiff Hamza.
As a result, I recommend that Plaintiffs’ claims pursuant to 42 U.S.C. § 1983 against
Defendant Rodriguez in his individual capacity be dismissed for failure to state a claim upon
which relief may be granted.
4. 	Claims Pursuant to 42 U.S.C. § 1985
“[T]o make out a violation of § 1985(3) . . . , the plaintiff must allege and prove four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a citizen of the
United States.” United Brotherhood of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v.
Scott, 103 S. Ct. 3352, 3356 (1983). A “conspiracy” requires, for purposes of Section 1985, “a
plurality of actors committed to a common goal.” Frooks v. Town of Cortlandt, 997 F. Supp.
438, 456 (S.D.N.Y. 1998), aff'd, 182 F.3d 899 (2d Cir. 1999). In addition, a claim pursuant to
Section 1985 requires that a plaintiff allege “some racial or [ ] otherwise class-based animus
behind the conspirators’ action.” Palmieri v. Lynch, 392 F.3d 73, 86 (2d Cir. 2004). “Mere
conclusory or general allegations of a conspiracy are insufficient to state a claim” under Section
1985. Artemov v. City of New York, 24-CV-1908, 2024 WL 1436024, at *3 (E.D.N.Y. Apr. 3,
2024) (citing Doe v. Fenchel, 837 F. App’x 67, 68-69 (2d Cir. 2021) (summary order) (affirming
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dismissal of plaintiff's Section 1985 conspiracy claim where the operative complaint did not
include facts to support its conclusory allegations)).
Here, the Second Amended Complaint contains only conclusory allegations of a
conspiracy. For example, Plaintiffs assert that their allegations that “the Village Trustees
coordinated with DOYLE, TKACY, and Defendants [Kotsidis and Kotsidou] state a claim for
municipal conspiracy 42 U.S.C. § 1985(3), which prohibits conspiracies motivated by
discriminatory animus.” (Hamza I, Dkt. No. 50 at 53.) These naked assertions fail to plausibly
allege any of the required elements of a conspiracy pursuant to 42 U.S.C. § 1985(3).
Moreover, Plaintiffs fail to allege any discriminatory animus behind the conspirators’
action. (See generally Hamza I, Dkt. No. 50.) To the extent that the Second Amended
Complaint is liberally construed as asserting discriminatory animus behind the conspirators’
action based on Plaintiffs’ sexual orientation, I recommend that it be dismissed for failure to state
a claim upon which relief may be granted. The Second Amended Complaint alleges that at some
unspecified time Defendants Tkacy and Doyle previously exhibited “discriminatory conduct
toward Plaintiff HAMZA based on his sexual orientation.” (Hamza I, Dkt. No. 50 at 48.)
Plaintiffs fail to specify any link between this prior “discriminatory conduct” and the alleged
conspiracy between Defendants. (See generally Hamza I, Dkt. No. 50.)
As a result, I recommend that in the alternative, Plaintiffs’ claim pursuant to 42 U.S.C. §
1985 against Defendants be dismissed for failure to state a claim upon which relief may be
granted.
5. 	State Law Claims
Having found that all of Plaintiffs’ federal claims are subject to dismissal, I recommend
that the Court decline to exercise jurisdiction over any state law claims. See 28 U.S.C. §
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1367(c)(3) (providing 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”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n 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.”); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986) (citing Kavit v. A.L.
Stamm & Co., 491 F.2d 1176, 1180 (1974)) (holding that “federal courts, absent exceptional
circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case
can be disposed of by summary judgment”).
C. 	Hamza II
1. 	Plaintiff Hamza’s Claims Are Frivolous
I recommend dismissal of Plaintiff Hamza’s claims in Hamza II as frivolous.
Plaintiff Hamza’s fanciful Complaint alleges a conspiracy involving private citizen
neighbors and the District Attorney’s Office to harass or otherwise harm him. (See generally
Hamza II, Dkt. No. 1.)
Plaintiff Hamza’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
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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 Hamza’s Complaint in Hamza II be dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
2. 	Claims Pursuant to 42 U.S.C. § 1983
a. 	Claims Against Defendants Liberati-Contant and Davidson-
Cunningham
i. 	Seeking Damages
“Prosecutors sued under § 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.’” Joyner v. Cty. 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
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or defamatory statements in judicial proceedings[;]” and the “conspiring to present false
evidence at a criminal trial[.]”20
Plaintiff Hamza alleges that Defendants Liberati-Contant and Davidson-Cunningham
prosecuted the criminal charges brought against him, which involved “credit[ing]” the accounts
of Defendants Kotsidis and Kotsidou and “discounting Plaintiff[ Hamza]’s” accounts. (Hamza
II, Dkt. No. 1 at 4-5.) Plaintiff Hamza also appears to allege that Defendants Liberati-Contant
and Davidson-Cunningham refused to engage in direct communication with him because he was
represented by counsel. (Id. at 5.)
Prosecutors are immune from action “initiating a prosecution, and in presenting the
State’s case.” Flager v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011). Plaintiff Hamza’s
allegations relate entirely to the conduct of Defendants Liberati-Contant and Davidson-
Cunningham21 in their function as advocates in the judicial phase of the criminal process. Thus,
I recommend in the alternative that Plaintiff Hamza’s claims against Defendants Liberati-
Contant and Davidson-Cunningham seeking damages be dismissed based on the doctrine of
absolute prosecutorial immunity.
20 	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, 424 U.S. 409, 431 n.34 (1976); Burns v. Reed, 500 U.S.
478, 490 (1991); Dory, 25 F.3d at 83.
21 	The Complaint merely refers to actions of “DAO,” which the undersigned interpreted to
signify the “District Attorney’s Office.” (See generally Hamza II, Dkt. No. 1.) However, the
Complaint fails to allege facts plausibly suggesting any action or failure to act on behalf of
Defendants Liberati-Contant and Davidson-Cunningham. Thus, in the alternative, I recommend
that Plaintiff Hamza’s claims against them be dismissed for failure to allege their personal
involvement in any constitutional violation.
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ii. 	Seeking Injunctive Relief
Although prosecutorial immunity bars Section 1983 claims for damages, an official-
capacity claim for prospective injunctive relief may proceed to remedy an alleged “ongoing
violation of federal constitutional law.” Avitabile v. Beach, 277 F. Supp. 3d 326, 332 (N.D.N.Y.
2017) (citations omitted).
Plaintiff Hamza seeks (1) a declaration that Defendants Liberati-Contant and Davidson-
Cunningham violated his rights, and (2) an injunction preventing Defendant Liberati-Contant
“from retaliatory/viewpoint-based handling of Plaintiff[ Hamza]’s complaints and from
conditioning transparency on pendency of charges; requiring neutral processing and appropriate
disclosures.” (Hamza II, Dkt. No. 1 at 9.)
Plaintiff Hamza’s request for declaratory judgment should be dismissed because it relates
to Defendants Liberati-Contant and Davidson-Cunningham’s previous actions, not their future
conduct. See T.W. v. New York State Bd. of L. Examiners, 110 F.4th 71, 92 (2d Cir. 2024), cert.
denied, 145 S. Ct. 2700, 221 L. Ed. 2d 966 (2025) (affirming dismissal of claim for declaratory
relief against the New York Board of Law Examiners where bar applicant plaintiff “[sought]
only a declaration regarding the Board’s previous actions, not its future conduct”).
As set forth above in Part IV.B.3.a.ii. of this Order and Report-Recommendation, “[i]n
seeking prospective relief like an injunction, ‘a plaintiff must show that he can reasonably expect
to encounter the same injury again in the future—otherwise there is no remedial benefit that he
can derive from such a judicial decree.” Leder v. Am. Traffic Sols., Inc., 81 F. Supp. 3d 211, 222
(E.D.N.Y. 2015). Plaintiff Hamza fails to allege facts plausibly suggesting that he can
reasonably expect to encounter future or continuing retaliation or “viewpoint-based handling” of
complaints by Defendants Liberati-Contant and Davidson-Cunningham. (See generally Hamza
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II, Dkt. No. 1.) As a result, I recommend that his request for injunctive relief be dismissed
because Plaintiff Hamza lacks standing.
Moreover, the two claims in the Complaint that appear to be asserted against Defendants
Liberati-Contant and Davidson-Cunninham allege (1) retaliation, and (2) a violation of Plaintiff
Hamza’s right to equal protection of the law.22 (Hamza II, Dkt. No. 1 at 6.)
As set forth above in Part IV.B.3.c. of this Order and Report-Recommendation, to state a
claim for retaliation pursuant to the First Amendment and 42 U.S.C. § 1983, a plaintiff must
allege “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse
action against the plaintiff, and (3) that there was a causal connection between the protected
speech [or conduct] and the adverse action.” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir.
2015) (citing Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). Moreover, as set forth above
in Part IV.B.3.i. of this Order and Report-Recommendation, “[a]s a general matter, it is difficult
to establish one defendant’s retaliation for complaints against another defendant.” Hare v.
Hayden, 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011). Plaintiff Hamza fails
to allege facts plausibly suggesting a causal connection between his protected speech in initiating
a lawsuit against Defendants Kotsidis and Kotsidou and the actions of Defendants Liberati-
Contant and Davidson-Cunningham in prosecuting criminal charges against him. (See generally
Hamza II, Dkt. No. 1.)
22 	To the extent that Plaintiff Hamza attempts to assert claims against Defendants Liberati-
Contant and Davidson-Cunningham related to his “irregular home arrest” or the custodial
questioning without Miranda warnings (Hamza II, Dkt. No. 1 at 6-7), the Complaint fails to
allege their personal involvement in Plaintiff Hamza’s arrest or subsequent questioning. (See
generally Hamza II, Dkt. No. 1.) Thus, Plaintiff Hamza fails to state a claim pursuant to 42
U.S.C. § 1983 upon which relief may be granted against Defendants Liberati-Contant and
Davidson-Cunningham related to these allegations.
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As set forth above in Part IV.B.3.c. of this Order and Report-Recommendation, the Equal
Protection Clause mandates all state governments to treat similarly situated people alike. A
plaintiff who does not allege any protected class affiliation can demonstrate an equal protection
violation where the plaintiff shows that he or she was treated differently from similarly situated
individuals in circumstances where there was no rational basis for the difference in treatment
(“class of one”). See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). The
Supreme Court has recognized that
There are some forms of state action, however, which by their nature
involve discretionary decision[-]making based on a vast array of
subjective, individualized assessments. In such cases the rule that people
should be ‘treated alike, under like circumstances and conditions’ is not
violated when one person is treated differently from others, because
treating like individuals differently is an accepted consequence of the
discretion granted. In such situations, allowing a challenge based on the
arbitrary singling out of a particular person would undermine the very
discretion that such state officials are entrusted to exercise.
Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 603 (2008). Notwithstanding, the Second
Circuit has emphasized that Engquist does not “bar all class-of-one claims involving
discretionary state action.” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 142 (2d Cir.
2010). The Second Circuit instructed that courts consider whether the government action at
issue “involve[s] discretion that is actually exercised on a day-to-day basis” or if the action is
“theoretically discretionary but—as a practical matter—actually depend[s] on de facto
standards.” Analytical Diagnostic Labs, Inc., 626 F.3d at 141 (citing Alfaro v. Labrador, 06-CV-
1470, 2009 WL 2525128, at *9 (E.D.N.Y. Aug. 14, 2009)).
Courts in this Circuit have held that “[t]he decisionmaking applied by a prosecutor
deciding which violations to investigate and what cases to bring is the type of ‘day-to-day’
government discretion that a ‘class of one’ claim cannot properly redress.” Artec Constr. and
Dev. Corp. v. City of New York, 15-CV-9494, 2017 WL 5891817, at *10 (S.D.N.Y. Nov. 28,
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2017) (citing Vested Bus. Brokers Ltd. v. Cnty. of Suffolk, 16-CV-4945, 2017 WL 4122616, at *7
(E.D.N.Y. Sept. 15, 2017) (“[T]o the extent that [plaintiff] is challenging [defendant’s]
investigation and subsequent decision not to make an arrest, the actions and decisions taken are
discretionary, and not subject to a ‘class of one’ claim.”); Alfaro, 2009 WL 2525128, at *9
(“[W]here a law is selectively enforced (without clear standards for enforcement) against some
people but not others, a class of one claim inappropriately interferes with the discretionary
decision making process that a law enforcement officer or body must engage in.”); see also
United States v. Armstrong, 517 U.S. 456, 464 (1996) (“In the ordinary case, so long as the
prosecutor has probable cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge to file or bring before a grand
jury, generally rests entirely in his discretion.”); United States v. Moore, 543 F.3d 891, 901 (7th
Cir. 2008) (applying the Engquist bar to a case challenging prosecutorial discretion because “the
discretion conferred on prosecutors in choosing whom and how to prosecute is flatly inconsistent
with a presumption of uniform treatment”)). Indeed, “[t]he day-to-day work of a prosecutor
necessarily involves the selection of certain individuals to investigate and charge—this is the
very type of government discretion that the Supreme Court removed from equal protection
review in Engquist.” Artec Constr. and Dev. Corp., 2017 WL 5891817, at *10.
Thus, I recommend dismissal of Plaintiff Hamza’s claim that Defendants Liberati-
Contant and Davidson-Cunningham placed him in a “class of one” through participation in his
criminal prosecution because it is barred under Engquist. See Owens v. Perez, 17-CV-0657,
2017 WL 11807650, at *6 (D. Conn. Dec. 6, 2017) (citing Vested Bus. Brokers, Ltd., 2017 WL
4122616, at *7 (“Simply, there is no constitutional right to an investigation by government
officials.”); Oliphant v. Villano, 09-CV-0862, 2011 WL 3902741, at *5 (D. Conn. Sept. 6, 2011)
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(plaintiff's allegation that officers failed to investigate his complaints failed to state a
constitutional claim)) (the plaintiff’s allegations that the defendants failed to investigate his
complaint regarding another officer “fail to state a cognizable constitutional claim.”).
As a result, in the alternative, I recommend that Plaintiff Hamza’s claims pursuant to 42
U.S.C. § 1983 against Defendants Liberati-Contant and Davidson-Cunningham be dismissed (1)
to the extent that they seek monetary damages, because Defendants Liberati-Contant and
Davidson-Cunningham are immune based on the doctrine of prosecutorial immunity, and (2) to
the extent that they seek declaratory and injunctive relief, for failure to state a claim upon which
relief may be granted.
b. 	Claims Against Defendants Kotsidis and Kotsidou
As set forth above in Part IV.B.3.b. of this Order and Report-Recommendation, private
actors “may only be held liable under § 1983 where the conduct at issue constitutes ‘state action’
[–] which only occurs where the challenged action of a private party is ‘fairly attributable’ to the
state.” Hulett v. City of Syracuse, 253 F. Supp. 3d 462, 504 (N.D.N.Y. 2017) (Hurd, J.) (citing
Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir. 2010)).
Under any of the applicable tests, the Complaint fails to allege facts plausibly suggesting
that Defendants Kotsidis and Kotsidou acted “under color of state law.” Although Defendants
Kotsidis and Kotsidou allegedly informed law enforcement about various issues that they had
with Plaintiff Hamza, that does not transform them to state actors. Fisk v. Letterman, 401 F.
Supp. 2d 362, 367 (S.D.N.Y. 2005) (“a private party who calls police officers for assistance or
provides them with information that may lead to an arrest of an individual does not become a
state actor rendering that party liable under § 1983 to the person detained, unless the police
officers were improperly influenced or controlled by the private party.”).
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As a result, in the alternative, I recommend that Plaintiff Hamza’s claims pursuant to 42
U.S.C. § 1983 against Defendants Kotsidis and Kotsidou be dismissed for failure to state a claim
upon which relief may be granted.
3. 	Claims Pursuant to 42 U.S.C. § 1985
As set forth above in Part IV.B.4. of this Order and Report-Recommendation, a claim
pursuant to Section 1985 requires that a plaintiff allege “some racial or [ ] otherwise class-based
animus behind the conspirators’ action.” Palmieri v. Lynch, 392 F.3d 73, 86 (2d Cir. 2004). The
Complaint fails to contain any factual allegation suggesting a racial or otherwise class-based
animus behind the conspirators’ action. (See generally Hamza II, Dkt. No. 1.) The Complaint
alleges solely that Plaintiff was treated differently “based on viewpoint and sexual orientation
bias” but fails to identify any action or inaction by Defendants Liberati-Contant, Davidson-
Cunningham, Kotsidis, or Kotsidou that suggests an animus related to Plaintiff Hamza’s sexual
orientation. (Hamza II, Dkt. No. 1 at 6; see also Hamza II, Dkt. No. 1 at 7 [alleging “Defendants
conspired to deprive Plaintiff of equal protection and equal privileges, motivated in part by
invidious class-based animus, including sexual orientation bias and hostility to Plaintiff’s
viewpoint”].) Plaintiff Hamza’s conclusory allegations of animus are insufficient.
As a result, in the alternative, I recommend that Plaintiff Hamza’s claims pursuant to 42
U.S.C. § 1985(3) be dismissed for failure to state a claim upon which relief may be granted.
D. 	Hamza III
1. 	Plaintiff Hamza’s Claims Are Frivolous
I recommend dismissal of Plaintiff Hamza’s claims in Hamza III as frivolous.
Plaintiff Hamza’s fanciful Complaint impliedly alleges a conspiracy involving private
citizen neighbors, foreign governments, an academic institution, a New York State non-profit,
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71
and the United States government to harass or otherwise harm him. (See generally Hamza III,
Dkt. No. 1.)
Plaintiff Hamza’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 Hamza’s Complaint in Hamza III be dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
2. 	Claims Pursuant to 42 U.S.C. § 1983
Plaintiff Hamza’s claims pursuant to 42 U.S.C. § 1983 are asserted solely against
Defendants Kotsidis and Kotsidou. (Hamza III, Dkt. No. 1 at 7.) As set forth above in Parts
IV.B.3.b. and IV.C.2.b. of this Order and Report-Recommendation, private actors “may only be
held liable under § 1983 where the conduct at issue constitutes ‘state action’ [–] which only
occurs where the challenged action of a private party is ‘fairly attributable’ to the state.” Hulett
v. City of Syracuse, 253 F. Supp. 3d 462, 504 (N.D.N.Y. 2017) (Hurd, J.) (citing Hollander v.
Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir. 2010)).
Under any of the applicable tests, the Complaint fails to allege facts plausibly suggesting
that Defendants Kotsidis and Kotsidou acted “under color of state law.” Although Defendants
Kotsidis and Kotsidou allegedly informed law enforcement about various issues that they had
with Plaintiff Hamza, that does not transform them to state actors. Fisk v. Letterman, 401 F.
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72
Supp. 2d 362, 367 (S.D.N.Y. 2005) (“a private party who calls police officers for assistance or
provides them with information that may lead to an arrest of an individual does not become a
state actor rendering that party liable under § 1983 to the person detained, unless the police
officers were improperly influenced or controlled by the private party.”).
As a result, in the alternative, I recommend that Plaintiff Hamza’s claims pursuant to 42
U.S.C. § 1983 against Defendants Kotsidis and Kotsidou be dismissed for failure to state a claim
upon which relief may be granted.
3. 	Claims Pursuant to 42 U.S.C. § 1985
Plaintiff Hamza’s claims pursuant to 42 U.S.C. § 1985(3) are asserted solely against
Defendants Kotsidis and Kotsidou. (Hamza III, Dkt. No. 1 at 7.) As set forth above in Parts
IV.B.4. and IV.C.3. of this Order and Report-Recommendation, a claim pursuant to Section 1985
requires that a plaintiff allege “some racial or [ ] otherwise class-based animus behind the
conspirators’ action.” Palmieri v. Lynch, 392 F.3d 73, 86 (2d Cir. 2004). Plaintiff Hamza fails
to allege facts plausibly suggesting some racial or otherwise class-based animus behind the
conspirators’ actions.
As a result, in the alternative, I recommend that Plaintiff Hamza’s claim pursuant to 42
U.S.C. § 1985(3) against Defendants Kotsidis and Kotsidou be dismissed for failure to state a
claim upon which relief may be granted.
4. 	State Law Claims
Having found that all of Plaintiff Hamza’s federal claims are subject to dismissal, I
recommend that the Court decline to exercise jurisdiction over any state law claims. See 28
U.S.C. § 1367(c)(3) (providing 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”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
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(1988) (“[I]n 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.”); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986)
(citing Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974)) (holding that “federal courts,
absent exceptional circumstances, should abstain from exercising pendent jurisdiction when
federal claims in a case can be disposed of by summary judgment”).23
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
23 	In addition, the undersigned makes the following three notes regarding Plaintiff Hamza’s
claims in Hamza III: First, Defendant the Government of the Hellenic Republic (Greece) is likely
immune from suit pursuant to the Foreign Sovereign Immunities Act (“FSIA”). The FSIA
“states that a ‘foreign state shall be immune from the jurisdiction of the courts of the United
States and of the States except as provided in [28 U.S.C. §§] 1605 to 1607.’” Petersen Energía
Inversora S.A.U. v. Argentine Republic and YPF S.A., 895 F.3d 194, 204 (2d Cir. 2018) (internal
quotation marks and citation omitted). Sovereign immunity from suit is the default rule, subject
only to specific exceptions, which do not appear to be applicable here. Second, “an action
against a federal agency . . . is essentially a suit against the United States, [and] such suits are . . .
barred under the doctrine of sovereign immunity, unless such immunity is waived.” Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). Hence, Plaintiff Hamza’s
claims against Defendant United States Department of State may be subject to dismissal based
on the doctrine of sovereign immunity. Third, the Complaint lists Defendants the Government of
the Hellenic Republic (Greece), Association of Foreign Press Correspondents in the USA, Inc.,
the George Washington University Graduate School of Political Management, and the United
States Department of State as defendants but the body of the Complaint fails to allege facts
plausibly suggesting any action or inaction on behalf of those defendants. (Hamza III, Dkt. No.
1.) “A complaint cannot be maintained against a defendant who is listed in the caption, but
against whom no facts are alleged in the body of the complaint.” Cipriani v. Buffardi, 06-CV-
0889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (Kahn, J.).
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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.).24
I recommend that the Court decline to grant Plaintiffs leave to amend. First, in Hamza I,
Plaintiffs have already amended their pleading twice. (Hamza I, Dkt. Nos. 1, 40, 50.) Any
additional amendments are not likely to be productive and will further clog the wheels of justice.
See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322
F.3d 147, 168 (2d Cir. 2003) (quoting Dluhos v. Floating & Abandoned Vessel, Known as “New
York,” 162 F.3d 63, 69 (2d Cir. 1998)) (finding that the “District Court did not abuse its
discretion in denying [the plaintiff] leave to amend the complaint because there was a ‘repeated
failure to cure deficiencies by amendments previously allowed.’”); Salinger v. Projectavision,
Inc., 972 F. Supp. 222, 236 (S.D.N.Y. 1997) (“Three bites at the apple is enough.”).
24 	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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Second, “a court may dismiss a case without allowing leave to amend ‘where the
substance of the claim pleaded is frivolous on its face.’” Harris v. U.S. Secret Serv., 605 F.
Supp. 3d 410, 414 (N.D.N.Y. 2022) (Sannes, J.) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42
(2d Cir. 1988)). The crux of Plaintiffs’ grievance in Hamza I is that private citizen neighbors,
multiple law enforcement agencies, members of the Village government, the Village Court
judge, and a private U-Haul business entered a conspiracy to harass and otherwise harm
Plaintiffs. (See generally Hamza I, Dkt. No. 50.) Plaintiff Hamza then commenced Hamza II,
where he alleges that the same private citizen neighbors conspired with the Columbia County
District Attorney’s Office to harass and otherwise harm him. (See generally Hamza II, Dkt. No.
1.) Finally, Plaintiff Hamza filed Hamza III, where he alleges that the same private citizen
neighbors harassed and otherwise harmed him with some ambiguous assistance from the
Government of the Hellenic Republic (Greece), the Association of Foreign Press Correspondents
in the USA, Inc., the George Washington University Graduate School of Political Management,
and the United States Department of State. (See generally Hamza III, Dkt. No. 1.)
While the undersigned does not doubt the sincerity of Plaintiffs’ beliefs, the allegations in
Hamza I, Hamza II, and Hamza III exhibit “a level of delusional paranoia that makes the
continuation of this vexatious litigation an unjustified expenditure of public and private
resources.” Kraemer v. City of New York, 19-CV-6671, 2020 WL 1974204, at *4 (S.D.N.Y.
Apr. 24, 2020). As a result, I recommend that the Court deny Plaintiffs leave to amend their
pleadings. See Lang v. Clinton, 761 F. Supp. 3d 595, 602 (W.D.N.Y. 2024) (dismissing the
plaintiff’s claims without leave to amend where the allegations “are based on fantastical
allegations that scores of national political figures, business leaders, celebrities, and mental
health professionals entered into a conspiracy to use ‘FISA technology’ to remotely electrocute
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76
and otherwise harm him.”); Harris, 605 F. Supp. 3d at 414 (denying the plaintiff leave to amend
where his claim “rests solely on his demonstrably false belief that he is president); Muzumala v.
Unknown Fed. Agents, 22-CV-7851, 2023 WL 5530308, at *4-5 (S.D.N.Y. Aug. 28, 2023)
(dismissing as frivolous the plaintiff’s claims that “he is a victim of a broad conspiracy
perpetrated by [the d]efendants with the initial goal of his deportation, and later to deprive him of
his rights” and declining to grant leave to amend); Allen v. Tenev, 21-CV-4119, 2021 WL
3848871, at *2-3 (dismissing the plaintiff’s complaint as frivolous where he alleged “that as a
young child, Plaintiff developed Robinhood and numerous internet domain names, including
Google, Visio, Instagram, Postmates, “Kangeroo,” and Amazon, and declining to grant leave to
amend); see also Leib-Podry v. Tobias, 22-CV-8614, 2024 WL 1421152, at *10 (S.D.N.Y. Feb.
13, 2024) (dismissing the plaintiff’s complaint as time-barred and factually frivolous and
therefore, declining leave to amend); Frost v. CVR Assoc., Inc., 19-CV-9190, 2019 WL 6340993,
at *1-2 (S.D.N.Y. Nov. 26, 2019) (dismissing the plaintiff’s complaint as frivolous and declining
to grant leave to amend).
VI. 	PLAINTIFF HAMZA’S MOTIONS IN HAMZA III FOR A PRESERVATION
ORDER, EXPEDITED DISCOVERY, AND A COURT CONFERENCE
Plaintiff Hamza filed motions for a preservation order, expedited discovery, and a court
conference. (Hamza III, Dkt. Nos. 2, 3.) In light of the recommended disposition of this case,
Plaintiff Hamza’s motions are denied without prejudice. (Id.)
ACCORDINGLY, it is
ORDERED that the Clerk of the Court shall update the docket in Hamza I to reflect that
the correct spelling of Defendant Kotsidou’s first name as “Maroula”; and it is further
ORDERED that Plaintiffs’ applications to proceed in forma pauperis (Hamza I, Dkt.
Nos. 3, 4; Hamza II, Dkt. No. 2; Hamza III, Dkt. No. 4) are GRANTED; and it is further
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ORDERED that Hamza v. Kotsidis, 1:25-CV-0968 (ECC/ML) is consolidated with
Hamza v. Liberati-Contant, 1:25-CV-1429 (ECC/ML), and Hamza v. Kotsidis, 1:25-CV-1506
(ECC/ML), with Hamza v. Kotsidis, 1:25-CV-0968 (ECC/ML) being designated as the lead case,
and all future filings to be made in the lead case only; and it is further
ORDERED that Plaintiff Hamza’s motions for a protective order, to expedite discovery,
and for a court conference (Hamza III, Dkt. Nos. 2, 3) are DENIED without prejudice; and it is
further respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREDJUCIE BUT
WITHOUT LEAVE TO REPLEAD Plaintiffs’ Second Amended Complaint (Hamza I, Dkt.
No. 50), Plaintiff Hamza’s Complaint (Hamza II, Dkt. No. 1), and Plaintiff Hamza’s Complaint
(Hamza III, Dkt. No. 1) as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), or in the
alternative, because it seeks relief against defendants who are immune from such relief and for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), (iii); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.25
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.26 Such objections shall be filed with the
25 	The Clerk shall also provide Plaintiffs with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
26 	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
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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: November ___, 2025
Binghamton, New York
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).
26
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Alfaro v. Labrador, Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Follow by 545 Halsey Lane Properties, LLC v. Town of
Southampton, E.D.N.Y., August 19, 2014
2009 WL 2525128
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Richard ALFARO, Plaintiff,
v.
Barbara LABRADOR, Beth Wickey, Ann Nowak,
Hubert Phillips, Keith Tuthill, Paul Houlihan,
William Mees, Steven Frano, Jonathan Irwin,
“John Doe” and “Jane Done” # 1–5, 6–10 and 11–
15, the Town of Southampton Board Members
comprising the Southampton Zoning Board of
Appeals, the Town of Southampton Department
of Land Management and Zoning Division,
and the Town of Southampton, Defendants.
No. 06–CV–1470(JS)(WDW).
|
Aug. 14, 2009.
West KeySummary
1 Constitutional Law Zoning and land use
Zoning and Planning Selective
enforcement and discrimination
A Hispanic business owner failed to state an
equal protection claim against a town based
on alleged racial discrimination. The owner
alleged that the town had not subjected any other
businesses to search warrants or police raids for
zoning violations, but failed to show that he was
treated differently due to impermissible racial
considerations. Although there was evidence that
a neighboring business owner possessed racial
animus towards the business owner, there was
no evidence that any town employees engaged in
racial discrimination against the owner. U.S.C.A.
Const.Amend. 14.
9 Cases that cite this headnote
Attorneys and Law Firms
Concetta Maria Rinaldi, Esq., Andrew J. Campanelli, Esq.,
Perry & Campanelli, LLP, Mineola, NY, for Plaintiff.
Geoffrey H. Pforr, Esq., Robert Howard Cabble, Esq.,
Andrew J. Mihalick, Esq., Kral, Clerkin, Redmond, Ryan,
Perry & Girvan, Smithtown, NY, for Defendant William
Mees.
Jeltje DeJong, Esq., David H. Arntsen, Esq., Devitt Spellman
Barrett, Smithtown, NY, for the Southampton Defendants.
MEMORANDUM AND DECISION
SEYBERT, District Judge.
*1 Pending before the Court are two motions for summary
judgment, one filed by Defendant William Mees, and
the other by the remaining defendants (“Southampton
Defendants”). For the foregoing reasons, Mr. Mees' motion
is GRANTED. The Southampton Defendants' motion is
GRANTED IN PART AND DENIED IN PART.
BACKGROUND
On August 15, 1997, Richard Alfaro (“Mr.Alfaro”), a
Hispanic male, began leasing the premises located at
674 Montauk Highway in East Quogue, New York (“the
Property”) through Alfaro Motors 35th Avenue Inc., a
corporation he controlled. Southampton Def. Stmt. ¶ 1.
Mr. Alfaro leased the Property so that he could open and
operate an automobile repair shop. Compl. ¶ 8. The Property
is zoned “Village Business District,” a zoning designation
which usually prohibits the operation of an automobile
repair shop. Southampton Def. Ex. C. However, Southampton
permits new owners and lessees to continue pre-existing
non-conforming uses of a property. And here, the Property
came with a Certificate of Occupancy dated November 20,
1984, which listed “one concrete block repair garage” as
a permitted non-conforming use. Southampton Def. Ex. E.
Accordingly, Mr. Alfaro believed that he had a right to operate
an automobile repair shop on the Property.
The Property abuts a business known as Hampton Brake
and Muffler, which Defendant William Mees owns. Across
the street is an automobile shop known as Automagic
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Alfaro v. Labrador, Not Reported in F.Supp.2d (2009)
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East. And diagonal to the Property is a repair shop called
Loper's Equipment. Like the Property, both Hampton Brake
and Muffler and Automagic East lack proper zoning but
have Certificates of Occupancy that permit nonconforming
uses. Hampton Brake's Certificate of Occupancy permits
“Major Repair of autos and trucks, in wheels, frame,
body, brake alignment & mufflers,” while Automagic East's
permits an “automobile service station.” Southampton Def.
Exs. Q, R. Mr. Alfaro claims that Hampton Brake and
Muffler also operates an on-site junkyard, which Mr. Mees
lacks a proper Certificate of Occupancy for. Alfaro Tr.
25:7. Despite this alleged junkyard, Hampton Brake and
Muffler, like Automagic East, operates without interference
from the town. Loper's Equipment apparently operates
without an appropriate Certificate of Occupancy and has
correspondingly received numerous zoning-related citations
and complaints. Southampton Def. Ex. U.
Mr. Alfaro's problems with Southampton began shortly
after his lease commenced. In or about September 1997,
Southampton sent Building Inspector Defendant Jonathan
Erwin 1 to inspect the Property. Compl. ¶ 50. Mr. Erwin
informed Mr. Alfaro that his inspection resulted from a
complaint filed with the Southampton Police Department
reporting that Mr. Alfaro had illegally changed the Property's
use. Compl. ¶ 51. Mr. Erwin's inspection took place
before Mr. Alfaro had commenced operation of a repair
garage, or any business at all, on the Property. Compl. ¶
58. Nevertheless, and despite the Property's Certificate of
Occupancy permitting the use of “one concrete block repair
garage,” on October 3, 1997, Southampton issued Mr. Alfaro
a Notice of Violation for using “a cement block building ...
as a repair garage.” Southampton Def. Ex. F. Although Mr.
Mees opposed Mr. Alfaro's plans to use the Property as a
repair garage, he did not have any conversations or other
communications with Mr. Erwin concerning Mr. Alfaro or the
Property. Mees Stmt. ¶ 13. However, Mr. Mees and Mr. Erwin
did know each other, and Mr. Erwin had patronized Mr. Mees'
business three or four times over the past fifteen to twenty
years. Mees Stmt. ¶ 6.
*2 On October 23, 1997, Mr. Alfaro, through his attorney,
wrote to the Southampton Building Department to object
to the Notice of Violation and to note that the Property's
Certificate of Occupancy covered the Property's allegedly
improper use as a repair garage. Southampton Def. Ex. G.
On October 27, 1997, the Southampton Building Department
responded, stating that: (1) the Certificate of Occupancy
“further clarifies the repair garage as an accessory to the
produce operation”; and (2) this non-conforming use “is
abandoned ... if the use has been discontinued” for a specified
time period. Southampton Def. Ex. H (emphasis supplied).
But the Southampton Building Department's response did
not explain: (1) how the Certificate of Occupancy “clarifies”
the Property's use as a repair garage (its plain text contains
no such “clarification”); or (2) whether the Property's non-
conforming use had, in fact, been abandoned for the necessary
time period.
On November 26, 1997, Mr. Alfaro was issued a citation for
operating an auto repair business without a proper Certificate
of Occupancy. Southampton Def. Ex. J. ¶ 8. This citation
resulted in Mr. Alfaro pleading guilty pursuant to a plea
bargain. Id. ¶ 9. As part of that plea bargain, Mr. Alfaro was
required to submit an application to the Zoning Board of
Appeals (“ZBA”). Id. Thus, in January of 2000, Mr. Alfaro
filed such an application with the ZBA seeking: (1) an appeal
from the Building Inspector's determination of a violation;
and (2) a use variance if the appeal was denied. Id. ¶¶ 1, 9.
The ZBA, consisting of Defendants Barbara Labador, Beth
Wickey, Ann Nowak, Hubert Phillips and Keith Tuthill, held
three hearings on Mr. Alfaro's application. Id. ¶ 1. Mr. Mees
and two elderly women opposed Mr. Alfaro's application
for a special use permit. Southampton Def. Stmt. ¶ 66.
Mr. Mees retained attorney Doug Penny to assist him with
his opposition. Mees Stmt. ¶ 26. In connection with this
representation, Mr. Penny wrote to Defendant Paul Houlihan,
Southampton's Chief Building Inspector, and testified at the
ZBA hearings. Houlihan Tr. 53:22–55:3. Mr. Mees contends
that he opposed Mr. Alfaro's application solely due to his own
economic interest, because Mr. Alfaro would have competed
with him, and denies ever making any racial slurs towards Mr.
Alfaro. Mees Stmt. ¶¶ 25, 27. Mr. Alfaro contends that Mr.
Mees was motivated by racial animus, as evidenced by Mr.
Mees allegedly referring to Mr. Alfaro as a “F' in spic” and
a “spic bastard.” Pl. Resp. to Mees Stmt. ¶ 25; Compl. ¶ 45.
For purposes of this motion, the Court takes judicial notice of
the fact that the term “F' in” is shorthand for a profanity, and
that the term “spic” is a derogatory term for Hispanic.
On May 17, 2001, the ZBA made its findings. The ZBA
concluded that the Building Inspector correctly interpreted
the Certificate of Occupancy, because the Property had only
been used to repair the produce business' trucks and the
owner's personal vehicles, and had never been used to operate
a commercial auto repair business. Southampton Def. Ex. J. ¶
23. In addition, the ZBA concluded that, even if the Certificate
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Alfaro v. Labrador, Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
of Occupancy did permit a commercial auto repair business,
the Property's use as a repair garage had been abandoned
for seven years, precluding the Property's continued non-
conforming use as a repair garage. Id. at ¶¶ 24–25. The ZBA
then denied Mr. Alfaro's application for a use variance. Id. ¶
26.
*3 In June 2001, Mr. Alfaro brought an Article 78 challenge
to the ZBA's decision in New York Supreme Court, Suffolk
County. Southampton Def. Ex. K. On April 16, 2002, the Hon.
John JJ Jones, Jr. denied Mr. Alfaro's Article 78 challenge.
Southampton Def. Ex. L. On June 3, 2003, the New York
Appellate Division, Second Department, affirmed Justice
Jones' decision.
In June 2001, Mr. Alfaro was issued another citation for
occupying and using the Property without a proper Certificate
of Occupancy, this time by Defendant Steven Frano.
Southampton Def. Ex. W. During Mr. Frano's investigation,
Mr. Frano obtained permission to park on Mr. Mees' property,
and the property of another adjacent owner, for the purposes
of observing Mr. Alfaro's activities. Southampton Def.
Stmt. ¶¶ 49, 50. Mr. Frano and Mr. Mees were “friendly
acquaintence[s]” who sometimes played softball together,
and Mr. Frano had patronized Mr. Mees' shop three to five
times over the past fifteen to twenty years. Mees Stmt. ¶
7; Pl. Resp. to Mees Stmt. ¶ 15. Mr. Frano and Mr. Mees
apparently discussed the Alfaro case, with Mr. Mees asking
him what he was “doing about [it],” but Mr. Frano simply
replied that the investigation was on-going. Frano Tr. 84:10–
85:15. Mr. Tuthill, a ZBA member and a client of Mr. Mees,
also went to observe the Property during this period. Pl. Stmt.
¶ 2. Mr. Mees himself kept a diary detailing Mr. Alfaro's
daily activities at the Property, which he later turned over to
Southampton. Pl. Stmt. ¶ 3.
On or about April 9, 2003, upon Mr. Frano's application,
the Town Justice issued a search warrant for the Property.
Southampton Def. Stmt. ¶ 51. On April 10, 2003,
Southampton executed the search warrant. Southampton Def.
Stmt. ¶ 52. Southampton officials, including Mr. Frano,
conducted a four to five hour search, but were only able to
seize stamps, papers belonging to Mr. Alfaro's son, tools,
and $300 in cash. Pl. Stmt. at ¶ 4. Southampton has never
subjected any other property to the execution of a search
warrant or a police raid due to alleged building or zoning code
violations. Id. at ¶¶ 5, 6. 2 Mr. Mees was present during the
raid, and smiled as it took place. Pl. Resp. to Mees Stmt. ¶ 61b.
Life continued while these legal proceedings took place.
During the lease term, Mr. Alfaro used the premises to
perform certain motor vehicle repair work and towing
operations. Southampton Def. Stmt. ¶ 3. The Southampton
Defendants claim that Mr. Alfaro also used the property to
store antique cars, but have failed to cite any evidence to
that effect. Id. In December 1999, Mr. Alfaro exercised his
option to purchase the Property. Compl. ¶ 70. Following his
purchase of the Property, Mr. Alfaro used it to repair his own
antique cars. Alfaro Tr. at 62:23. Mr. Alfaro also took phone
calls at the Property, through which he helped to operate his
businesses at other locations. Alfaro Tr. 64:15–21. Mr. Alfaro
also moved his friend's vehicle to the Property, following his
friend's automobile accident at a nearby location. Pl. Resp.
to Southampton Def. Stmt. ¶ 67. And Mr. Alfaro received
some windshield deliveries at the Property, and had those
windshields put “in.” Southampton Def. Stmt. ¶ 68. But Mr.
Alfaro is not aware of any other activity taking place at the
Property. Alfaro Tr. 67:8. Mr. Alfaro sold the Property in June
2004. Southampton Def. Stmt. ¶ 54.
*4 In March 2006, Mr. Alfaro commenced this case,
pleading claims under § 1983 for racial discrimination (Count
I), personal animus against him (Count II), lack of due process
by delaying his ZBA hearing (Count III), deprivation of
property without due process (Count IV), and conspiracy
(Count V). On March 28, 2007, the Court dismissed Mr.
Alfaro's due process claims, leaving only Counts I, II and V
remaining.
DISCUSSION
I. Standard of Review on Summary Judgment
“Summary judgment is appropriate where there are no
genuine disputes concerning any material facts, and where
the moving party is entitled to judgment as a matter of law.”
Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp.
(In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir.1998)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986).
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary
judgment.” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d
Cir.1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,
157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “In assessing the
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record to determine whether there is a genuine issue to be
tried as to any material fact, the court is required to resolve
all ambiguities and draw all permissible factual inferences
in favor of the party against whom summary judgment is
sought.” McLee, 109 F.3d at 134.
“Although the moving party bears the initial burden of
establishing that there are no genuine issues of material fact,
once such a showing is made, the non-movant must ‘set forth
specific facts showing that there is a genuine issue for trial.’ “
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000).
“Mere conclusory allegations or denials will not suffice.”
William v. Smith, 781 F.2d 319, 323 (2d Cir.1986). Similarly,
“unsupported allegations do not create a material issue of
fact.” Weinstock, 224 F.3d at 41.
II. Defendant William Mees is Entitled to Summary
Judgment
As an initial matter, Mr. Alfaro's claims against Mr. Mees fail.
It is undisputed that, during the time in question, Mr. Mees
was a private individual and not a Southampton employee
or official. Under § 1983, private parties such as Mr. Mees
can only be held liable upon a showing that the acted “under
color of state law.” Nicholas v. Goord, 430 F.3d 652, 656
n. 7 (2d Cir.2005). A private party acts “under color of
state law ... when the private actor is a willful participant
in joint activity with the State or its agents.” Ciambriello v.
County of Nassau, 292 F.3d 307, 324 (2d Cir.2002) (internal
citations and quotations omitted). In this regard, it is not
enough that a private party “merely stand to benefit from an
assertion of authority under color of law”; rather, the private
party must “act under color of law” such as through a “plan,
prearrangement, conspiracy, custom, or policy” with state
actors. Ginsberg v. Healey Car & Truck Leasin Inc., 189
F.3d 268, 272–273 (2d Cir.1999). For § 1983 purposes, a
nominally private party's actions are attributable to the state
when: (1) the party acts pursuant to the “coercive power” of
the state or is “controlled” by the state (“the compulsion test”);
(2) when the state provides “significant encouragement” to
the party, the party is a “willful participant in joint activity
with the [s]tate,” or the party's functions are “entwined”
with state policies (“the joint action test” or “close nexus
test”); or (3) when the entity “has been delegated a public
function by the [s]tate,” (“the public function test”). Sybalski
v. Indep. Group Home Living Prog., Inc., 546 F.3d 255, 257
(2d Cir.2008) (internal citations and quotations omitted).
*5 Here, Mr. Alfaro argues that Mr. Mees was a “state actor”
because of an alleged “conspiracy” taken between Mr. Mees
and Southampton officials. (Pl. Opp. to Def. Mees. Motion
at 6). Specifically, Mr. Alfaro claims that “in furtherance of
this conspiracy”: Mr. Mees “spewed a multitude of racial
slurs at plaintiff in the presence of defendant Town officials,”
and “hir[ed] a former Town attorney to represent him to
vehemently oppose the plaintiff's application before the
Town's Zoning Board.” Id. at 6–7. Even if these allegations
were true, they do not show that Mr. Mees was a state actor.
Nothing Mr. Mees did employed the “coercive power” of the
state, was closely “entwined” with the state, or amounted to
the state delegating a “public function” to him. Sybalski, 546
F.3d at 257. Rather, at most, Mr. Mees petitioned for the state
to employ its coercive power against Mr. Alfaro. But Mr.
Alfaro does not claim, much less evidence, that Mr. Mees
exercised any coercive power himself. Nor does Mr. Alfaro
cite anything suggesting that a private citizen's successful
request for Government action, through the exercise of his
First Amendment petition rights, somehow “entwines” the
private party with the Government action that ultimately
results, or amounts to a “delegation” of Government power
to the petitioner. 3 Thus, Mr. Mees was not a state actor for
§ 1983 purposes.
Mr. Alfaro's claims predicated on a § 1983 and § 1985
conspiracy theory (rather than Mr. Mees' own alleged “state
act[ion]”) fair no better. To prove a § 1983 conspiracy, Mr.
Alfaro must show: (1) an agreement between two or more
state actors or between a state actor and a private entity; (2)
to act in concert to inflict an unconstitutional injury; and (3)
an overt act done in furtherance of that goal causing damages.
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999).
Here, Mr. Alfaro has produced zero evidence that Mr. Mees
reached any “agreement” with Southampton or its officials.
At most, Mr. Alfaro has set forth unsubstantiated innuendo
that such an agreement must have existed because Mr. Mees:
(1) knew several of the individual Southampton Defendants
personally or professionally; and (2) personally opposed Mr.
Alfaro's operation of a repair shop; while (3) supposedly
being in violation of Southampton's zoning code himself. Pl.
Opp. to Def. Mees Motion at 7. But “conclusory allegations
and unsubstantiated statements are insufficient to survive”
summary judgment on a § 1983 and § 1985 conspiracy claim,
where “the record is devoid of any proof of an agreement
among Defendants to act in concert to violate Plaintiffs'
constitutional rights.” Rose v. Julliano, 05–CV–2732, 2008
WL 5233178, *7 (E.D.N.Y. Dec.8, 2008); Celestin v. City of
New York, 581 F.Supp.2d 420, 434 (E.D.N.Y.2008) (summary
judgment appropriate because “there is no evidence to suggest
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that an agreement existed among the officers to violate the
plaintiff's constitutional rights”).
*6 Accordingly, Mr. Mees is entitled to summary
judgment. 4
III. The Southampton Defendants' Summary Judgment
Motion is Granted in Part
A. Most of Mr. Alfaro's Claims are Time Barred
The parties agree that Mr. Alfaro's claims are subject to a
three-year statute of limitations, because § 1983's statute of
limitations depends on state law, and New York imposes
a three-year limit on civil rights claims. Southampton Def.
Motion at 6; Alfaro Opp. to Southampton Def. Motion at
8. Here, Mr. Alfaro filed his Complaint on March 30, 2006.
Thus, the Southampton Defendants argue that all of Mr.
Alfaro's claims based on events that preceded March 30, 2003
are time-barred. Mr. Alfaro counters that the Southampton
Defendants' conduct amounted to a “continuing violation”
which tolled the limitations period. But Mr. Alfaro's argument
is not persuasive.
Under Second Circuit law, “[t]he crucial time for accrual
purposes is when the plaintiff becomes aware that he is
suffering from a wrong for which damages may be recovered
in a civil action. To permit him to wait and toll the running
of the statute simply by asserting that a series of separate
wrongs were committed pursuant to a conspiracy would be to
enable him to defeat the purpose of the time-bar, which is to
preclude the resuscitation of stale claims.” Singleton v. City of
New York, 632 F.2d 185, 192 (2d Cir.1980). In his opposition
to the Southampton Defendants' summary judgment motion,
Mr. Alfaro's counsel contends that Mr. Alfaro did not know
he was being discriminated against until April 10, 2003,
when Southampton raided the Property. Alfaro Opp. to
Southampton Def. Mot. at 11–12. But Mr. Alfaro cites
no evidence to support this contention. And—contrary to
counsel's representations—Mr. Alfaro's deposition testimony
clearly indicates that he first believed that he was being
discriminated against “when I realized that Mees was ... the
only opposition that I had [to his Certificate of Occupancy]”
which occurred “right after I got the summons.” Alfaro Tr.
70:4–9. This took place sometime between 1997 (when Mr.
Alfaro first received a notice of violation) and 2000 or 2001,
when Mr. Mees opposed Mr. Alfaro's petition before the
ZBA. Because it is well-settled that a party's statement “which
contradicts his own prior deposition testimony should be
disregarded on a motion for summary judgment,” this Court
must ignore counsel's unsupported claim that Mr. Alfaro
did not suspect discrimination until 2003, and instead credit
Mr. Alfaro's deposition testimony—which establishes that
Mr. Alfaro first thought he was being discriminated against
sometime in 2001 or earlier. Buttry v. Gen. Signal Corp.,
68 F.3d 1488, 1493 (2d Cir.1995). And, consequently, Mr.
Alfaro cannot establish that he suffered any “continuing
violation.” Thus, the Southampton Defendants' motion for
summary judgment is GRANTED with respect to all conduct
that took place before March 30, 2003. It follows then that
summary judgment is also granted in full to Defendants
Labador, Wickey, Phillips, Tuthill, 5 Erwin, Houlihan 6 and
the Southampton Zoning Board of Appeals, whose allegedly
wrongful conduct all entirely predated March 30, 2003.
*7 The Southampton Defendants also argue that Mr. Alfaro's
claims relating to the police raid that took place on April
10, 2003 are time-barred. The Southampton Defendants claim
that the raid “was merely a procedure that flowed from
the 2001 criminal prosecution.” Southampton Def. Br. at 9.
This argument is not persuasive. As an initial matter, the
Southampton Defendants have provided zero factual support
for their claim that the raid “merely flowed” from Mr. Alfaro's
long concluded criminal prosecution. But even if the raid
really did “flow[ ]” from proceedings that took place in
2001, it is indisputable that the raid did not occur until April
10, 2003—several days after the beginning of the timely
period. Accordingly, the Southampton Defendants' argument
that claims relating to the raid are time-barred is frivolous.
Thus, Mr. Alfaro's claims against Mr. Frano, the Town of
Southampton, and the Town of Southampton Department
of Land Management and Zoning Division may proceed
(hereafter, the “Remaining Southampton Defendants”). 7
B. The Remaining Southampton Defendants are
Entitled to Summary Judgment on Mr. Alfaro's Racial
Discrimination Claim
Count I of the Complaint alleges that the Defendants
denied Mr. Alfaro equal protection of the law by racially
discriminating against him. To establish such a claim,
Mr. Alfaro must show: (1) that he was treated differently
from other similarly situated individuals, and (2) that
such differential treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person. See Harlen Assoc's v.
Incorporated Village of Mineola, 273 F.3d 494, 499 (2d
Cir.2001).
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For summary judgment purposes, Mr. Alfaro has satisfied
the first prong of this test. It is undisputed that several other
properties in Southampton contained enforceable zoning
violations, including Loper's Equipment, and potentially
Hampton Brake & Muffler. But, other than Mr. Alfaro,
Southampton has not subjected anyone to search warrants or
police raids for zoning violations. Pl. Stmt. ¶¶ 6, 7. Indeed,
in deposition, Mr. Houlihan testified that he could not think
of a single other incident in which a building or zoning code
violation led to a search warrant. Houlihan Tr. at 56–57. And,
at least for purposes of this motion, Southampton's targeted
enforcement against Mr. Alfaro is more striking because, in
contrast to other zoning violators, Mr. Alfaro was allegedly
not running an improperly zoned business at the time of the
search warrant and raid. Thus, Mr. Alfaro has shown that he
was treated differently from similarly situated individuals.
Mr. Alfaro has not, however, shown that he was treated
differently due to impermissible racial considerations. Mr.
Alfaro has produced no direct or circumstantial evidence
suggesting that any Southampton Defendant (rather than the
private party, Mr. Mees) had racial animus towards Mr.
Alfaro. Indeed, Mr. Alfaro himself tacitly concedes that he
has no evidence supporting an inference that Southampton or
its employees engaged in racial discrimination against him.
In his opposition to the Southampton Defendants' Motion for
Summary Judgment at 12–13, Mr. Alfaro argues only that
“discriminatory treatment was committed by co-conspirator
William Mees,” and then makes an unsupported speculative
jump that “[s]uch racial discrimination ... was the motivation
behind enforcement of the laws of Southampton.” But a party
cannot defeat summary judgment through “rank speculation”
of racial animus. Finkelshteyn v. Staten Island University
Hosp., 06–CV–4774, 2009 WL 935744, *12 (E.D.N.Y.
March 31, 2009) (rejecting plaintiff's argument that “Casella's
animus must be Pitta's animus”). Therefore, the remaining
Southampton Defendants are entitled to summary judgment
on Count I of Mr. Alfaro's Complaint.
C. Mr. Alfaro's “Class of One” Count Survives
*8 Mr. Alfaro argues that “should the Court find that there is
not sufficient evidence to sustain a § 1983 claim based upon a
violation of equal protection that is racially motivated, at the
very least, absent a suspect class, plaintiff is a ‘class of one’
and, based upon this, was discriminated against.” Pl. Opp. to
Southampton Def. Motion at 14. In his Complaint, this claim
appears as Count II, in which Mr. Alfaro alleges a violation
of equal protection based on “personal animus against him.”
The Supreme Court has recognized the existence of a “class of
one” equal protection cause of action against a municipality
for arbitrary or irrational application of property laws. In
Village of Willowbrook v. Olech, 528 U.S. 562, 564–65, 120
S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the Supreme Court held
that a property owner stated a valid “class of one” cause of
action by pleading that the defendant Village had demanded a
33 feet easement as a condition for connecting her property to
the municipal water supply while similarly situated property
owners needed to only grant a 15 foot easement, and that
“there was no rational basis for the difference in treatment.”
Applying Village of Willowbrook, the Second Circuit has held
that “class-of-one plaintiffs must show an extremely high
degree of similarity between themselves and the persons to
whom they compare themselves,” and that this burden “is
more stringent than that used at the summary judgment stage
in the employment discrimination context.” Clubside, Inc. v.
Valentin, 468 F.3d 144, 159 (2d Cir.2006) (Sotomayor, J.).
This is because a class of one plaintiff must show that he
“was intentionally singled out for reasons that so lack any
reasonable nexus with a legitimate governmental policy that
an improper purpose-whether personal or otherwise-is all but
certain.” Id. (internal quotations or citations omitted). Thus,
to succeed on a class of one claim, a plaintiff must establish:
(i) no rational person could regard the circumstances of the
plaintiff to differ from those of a comparator to a degree
that would justify the differential treatment on the basis
of a legitimate government policy; and (ii) the similarity
in circumstances and difference in treatment are sufficient
to exclude the possibility that the defendants acted on the
basis of a mistake. Id. That being said, “whether parties are
similarly situated is a fact-intensive inquiry.” Id. Thus, a court
may grant summary judgment in the defendant's favor only
“where no reasonable jury could find that the persons to
whom the plaintiff compares itself are similarly situated.” Id.
Roughly a year ago, the Supreme Court decided Engquist v.
Oregon Dep't of Agric., 553 U.S. 591, 128 S.Ct. 2146, 2154,
170 L.Ed.2d 975 (2008), in which it held that “class of one”
claims cannot be brought in the public employment context,
given the highly discretionary and individualized way in
which employment decisions are made. More generally, the
Court recognized that class of one claims cannot be brought
to challenge “some forms of state action, however, which by
their nature involve discretionary decisionmaking based on
a vast array of subjective, individualized assessments ... In
such situations, allowing a challenge based on the arbitrary
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singling out of a particular person would undermine the
very discretion that such state officials are entrusted to
exercise.” Id. The Supreme Court expressly cited certain
kinds of law enforcement as an example, noting that a
traffic officer might give “only one” speeder a ticket, but
that this selective enforcement does not create a “class of
one.” Id. Interpreting Engquist, several Second Circuit district
courts have identified another element that a prospective
“class of one” plaintiff must satisfy: “that the differential
treatment resulted from non-discretionary state action.” See,
e.g., Seymour's Boatyard, Inc. v. Town of Huntington, 08–
CV–3248, 2009 WL 1514610, *7 (E.D.N.Y. June 1, 2009);
see also Tarantino v. City of Hornell, 615 F.Supp.2d 102,
112 (W.D.N.Y.2009) (recognizing an identical third element
of a class of one claim); Balakrishnan v. Kusel, 08–CV–
1440, 2009 WL 1291755, *5 (E.D.N.Y. May 8, 2009). And,
applying Engquist, two circuits have held that class of one
claims cannot be raised in the law enforcement context.
Flowers v. City of Minneapolis, 558 F.3d 794, 799–800 (8th
Cir.2009) (“while a police officer's investigative decisions
remain subject to traditional class-based equal protection
analysis, they may not be attacked in a class-of-one equal
protection claim”); United States v. Moore, 543 F.3d 891,
901 (7th Cir.2008) (class of one claims cannot challenge the
exercise of prosecutorial discretion); see also Tarantino, 615
F.Supp.2d at 117 (finding that a class of one claim cannot
be used to challenge the enforcement of a rental property
ordinance).
*9 There is some disagreement, however, on how far
Engquist restricts “class of one” claims. In Balakrishnan, for
instance, the Court granted defendants summary judgment
on plaintiff's “class of one” equal protection cause of
action, but denied summary judgment on plaintiff's selective
enforcement cause of action predicated on plaintiff's
“class of one” status. In so doing, Balakrishnan found
that plaintiff survived summary judgment on a quasi-law
enforcement claim, concerning the scope of Department of
Health investigations into “the alleged regulatory violations
committed by plaintiff or the laboratories he directed,”
and a lengthy “hold” placed on the renewal of plaintiff's
certification to perform certain kinds of testing. Balakrishnan,
2009 WL 1291755 at *7. The Court noted that plaintiff's
certification had been on “hold” for substantially longer than
other individuals under investigation, and that the Department
of Health's investigation of plaintiff was “longer, more in-
depth, or otherwise different from the investigations of the
other laboratory directors.” Id. Thus, the Court concluded that
plaintiff had established triable issues of fact on his selective
enforcement claim. Id.
Considering the case at hand, and the established case
law, the Court respectfully disagrees with the Eighth and
Seventh Circuits that class of one claims can never be
brought in the law enforcement context. These holdings
appear to derive from the Supreme Court's hypothetical
concerning a traffic officer who must make discretionary
determinations regarding whom to ticket for speeding—
ticketing one speeder, but not others. The problem with this
hypothetical, at least with respect to Mr. Alfaro's claim, is
that while an individual officer might only ticket one speeder
on one particular occasion, it is indisputable that many
speeders get tickets, while many others do not, with no clear
standards in place to determine who gets ticketed. In such a
circumstance, where a law is selectively enforced (without
clear standards for enforcement) against some people but not
others, a class of one claim inappropriately interferes with the
discretionary decision making process that a law enforcement
officer or body must engage in.
On this point, Engquist' s discussion of “discretionary”
decisions in the Village of Willowbrook context is instructive.
Engquist' s discussion of Village of Willowbrook appears
to define “discretionary” decisions, for the purpose of
barring “class of one” claims, as those that involve
discretion that is actually exercised on a day-by-day basis,
rather than decisions that are theoretically discretionary
but—as a practical matter—actually depend on de facto
standards. Specifically, Engquist distinguished Village of
Willowbrook based on the Court's understanding that the
Village of Willowbrook's zoning board was not “exercising
discretionary authority based on subjective, individualized
determinations.” Engquist, 128 S.Ct. at 2153. Rather, the
Supreme Court commented, the fact that every other property
owner had been required to give an identical easement—15
feet—demonstrated “the existence of a clear standard against
which departures, even for a single plaintiff, could be readily
assessed.” Id. But Engquist does not claim, and Village of
Willowbrook, does not evidence, that the “clear standard”
alluded to was an official standard which constrained the
zoning board's power. Nor does Engquist claim, or Village
of Willowbrook suggest, that the zoning board lacked the
statutory authority to treat some property owners different
than others (that is, after all, what zoning boards frequently
do). Rather, the “clear standard” that Engquist references
appears to have emerged from the zoning board's consistent
pattern and practice—that, at a practical level, it had not
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exercised its statutory discretion on a case-by-case basis
but instead had required the same standard for everyone. 8
So to here: the issue is not whether Southampton lacked
the theoretical discretionary power to enforce its zoning
code through search warrants and police raids. It's the fact,
accepted as true for purposes of this motion, that it had never
exercised that power except against Mr. Alfaro, placing Mr.
Alfaro in a class all by himself amongst zoning code violators.
So, viewing the facts in the light most favorable to Mr. Alfaro,
Southampton—much like the Village of Willowbrook—had a
de facto “clear standard” on how to handle zoning violations
—which avoided the use of search warrants and police raids
—and violated that standard by peculiarly targeting Mr.
Alfaro. And thus, for purposes of this motion, the Court
holds that—even if class of one claims cannot challenge
discretionary decisions—Southampton's actions here were
not “discretionary” enough to bar Mr. Alfaro's claim.
*10 That being said, Mr. Alfaro, like all class of one
plaintiffs, must still establish the other two prongs of a
class of one claim, that: (i) no rational person could regard
the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy; and
(ii) the similarity in circumstances and difference in treatment
are sufficient to exclude the possibility that the defendants
acted on the basis of a mistake. Clubside, Inc., 468 F.3d at
159. But for purposes of this motion, Mr. Alfaro satisfies both
criteria.
First, the undisputed facts establish that at least one business
in close proximity to Mr. Alfaro's engaged in similar, albeit
not identical, zoning violations—Loper's Equipment. See
Southampton Def. Ex. U. And Mr. Alfaro testified that his
next door neighbor, Hampton Brake & Muffler, operated
an illegal junkyard which its Certificate of Occupancy
indisputably did not permit. Mindful of the fact that whether
two parties are “similarly situated is a fact-intensive inquiry,”
and that the Court should only grant summary judgment
“where no reasonable jury could find that the persons to
whom the plaintiff compares itself are similarly situated,” the
Court believes that a reasonable jury could consider Loper's
Equipment and Hampton Brake & Muffler similarly situated
to Mr. Alfaro. Clubside, Inc., 468 F.3d at 159. Both these
businesses are on the same block as the Property and, for
purposes of this motion, both engaged in zoning violations
that did not lead to the execution of search warrants or police
raids.
Second, the Southampton Defendants have not even
attempted to set forth any rational basis or legitimate
government policy to explain why they targeted Mr. Alfaro
through the execution of a search warrant or a police raid, but
not any other zoning violator (including Loper's Equipment
or Hampton Brake & Muffler). In this regard, the Court
can take judicial notice of the fact that zoning violations
are common, and that there were likely dozens, if not
hundreds, of zoning violators within Southampton during
the time period in question. See Kagen v. I.R.S., 71 F.3d
1018, 1021 (2d Cir.1995) (“Courts in general have long taken
judicial notice of facts of common knowledge”). 9 Indeed,
at his deposition, Southampton's Chief Building Inspector,
Mr. Houlihan acknowledged that he had “no idea” regarding
how many zoning code investigations or summonses he was
involved in between 1997 and 2001—suggesting a sizeable
number. Houlihan Tr. 14–15. For purposes of this motion,
Southampton has not contended that Mr. Alfaro's violations
were more severe, or articulated any other reason why it
treated Mr. Alfaro more severely than all the other zoning
violators in the Town. Accordingly, a reasonable jury could
find that “no rational person could regard the circumstances
of the plaintiff to differ from those of a comparator to a degree
that would justify the differential treatment on the basis of
a legitimate government policy.” Clubside, Inc., 468 F.3d at
159. And thus, Mr. Alfaro meets the first prong.
*11 Furthermore, the Southampton Defendants do not even
claim that they targeted Mr. Alfaro by “mistake.” Thus, given
the relative similarity in circumstances between Mr. Alfaro
and other zoning violators, and the relative dissimilarity in
how Southampton treated him, a reasonable jury could also
“exclude the possibility that the defendants acted on the basis
of a mistake.” Id.
It follows that Mr. Alfaro's “class of one” equal protection
claim survives summary judgment.
D. The Remaining Southampton Defendants are Entitled
to Summary Judgment on Mr. Alfaro's Conspiracy Claim
The Remaining Southampton Defendants are entitled to
summary judgment on Mr. Alfaro's conspiracy claim brought
under 42 U.S.C. § 1985. Mr. Alfaro has adduced no evidence
that the Remaining Southampton Defendants entered into any
kind of agreement to deny him equal protection of the law.
And, “[i]n order to maintain an action under Section 1985, a
plaintiff must provide some factual basis supporting a meeting
of the minds, such that defendants entered into an agreement,
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express or tacit, to achieve the unlawful end.” Webb v. Goord,
340 F.3d 105, 110 (2d Cir.2003). Therefore, the Remaining
Southampton Defendants are entitled to summary judgment
on Mr. Alfaro's conspiracy claim.
In addition, as noted above, the Remaining Southampton
Defendants consist of a Southampton employee (Mr.
Frano), Southampton itself, and an apparent Southampton
government body. And it is well-established that “[u]nder
the intracorporate conspiracy doctrine, officers, agents and
employees of a single corporate entity are legally incapable
of conspiring together.” Hartline v. Gallo, 546 F.3d 95, 99
n. 3 (2d Cir.2008). The intracorporate conspiracy doctrine
further “bars conspiracy claims alleging concerted action by
employees and/or the heads of various departments within
a single municipal entity, at least where the complaint
fails to allege that the various [municipal] entities were
effectively acting as separate entities in carrying out
the alleged conspiracy.” Broich v. Incorporated Village
of Southampton, 08–CV–0553, 2009 WL 2225306, *9
(E.D.N.Y.2009) (internal citations and quotations omitted).
Here, because the remaining defendants are all part of
the same municipal entity—the Town of Southampton—
summary judgment is also proper on the basis of the
intracorporate conspiracy doctrine.
E. Qualified Immunity
The doctrine of qualified immunity shields government
officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights.” Ashcroft v. Iqbal, 556U.S. 662, 129
S.Ct. 1937, 1945, 173 L.Ed.2d 868 (2009). To establish
qualified immunity, defendants must “show either that their
conduct did not violate clearly established rights of which
a reasonable person would have known, or that it was
objectively reasonable to believe that [their] acts did not
violate these clearly established rights.” Prue v. City of
Syracuse, 26 F.3d 14, 17 (2d Cir.1994).
*12 Here, the Southampton Defendants argue that Mr. Frano
is entitled to qualified immunity because he was engaged in
discretionary functions, and it was objectively reasonable for
him to believe that his actions did not violate Mr. Alfaro's
rights. Mr. Frano is entitled to qualified immunity on the latter
ground.
The timely conduct alleged against Mr. Frano consists of Mr.
Frano's role in obtaining a search warrant and facilitating
a police raid on Mr. Alfaro's property, thereby selectively
enforcing Southampton's zoning code against a “class of one.”
These actions took place in 2003. But even today, several
years after the search warrant and raid, the law concerning
“class of one” claims is muddled. As discussed above, two
circuits (the Eighth and the Seventh) have effectively held
that plaintiffs' cannot assert “class of one claims” in the
law enforcement context (e.g., here, a search warrant and
raid). And, although this Court disagrees with drawing any
bright line rule, the fact that two circuit courts would bar Mr.
Alfaro's claim (while the Second Circuit has yet to speak)
demonstrates that Mr. Frano's actions did not violate any of
Mr. Alfaro's “clearly established rights.” Prue, 26 F.3d at 17.
In addition, the fact that the Town Justice signed off
on the search warrant creates a presumption that Mr.
Frano's conduct “was objectively reasonable.” Martinez v.
City of Schenectady, 115 F.3d 111, 115 (2d Cir.1997).
And, to rebut that presumption, Mr. Alfaro “must make a
‘substantial preliminary showing’ that the affiant knowingly
and intentionally, or with reckless disregard for the truth”
obtained the search warrant through “a false statement in his
affidavit and that the allegedly false statement was ‘necessary
to the finding of probable cause.” Lynch ex rel. Lynch v. City
of Mount Vernon, 567 F.Supp.2d 459, 466 (S.D.N.Y.2008)
(internal citations and quotations omitted). Here, Mr. Alfaro
has failed to do so.
Thus, Mr. Frano is entitled to summary judgment on the issue
of qualified immunity. Consequently, Mr. Alfaro may proceed
to trial only against the Town of Southampton and the Town of
Southampton Department of Land Management and Zoning
Division. 10
CONCLUSION
Mr. Mees' motion for summary judgment is GRANTED
in full. The Southampton Defendants' motion for summary
judgment is GRANTED in part and DENIED in part.
Specifically: (1) Defendants Labrador, Wickey, Nowak,
Phillips, Houlihan, Erwin and the Southampton Board
Members comprising the Southampton Zoning Board of
Appeals are awarded full summary judgment; (2) Defendants
the Town of Southampton and the Town of Southampton
Department of Land Management and Zoning Division are
awarded summary judgment on Counts I and V of the
Complaint; and (3) with respect to Count II of the Complaint,
Defendants the Town of Southampton and the Town of
Southampton Department of Land Management and Zoning
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Division are awarded summary judgment with respect to all
conduct that took place on or before March 30, 2003.
*13 Plaintiff Richard Alfaro may proceed to trial only
against the Town of Southampton and the Southampton
Department of Land Management and Zoning Division, and
only with respect to Count II's “class of one” claim predicated
on conduct that postdates March 30, 2003.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 2525128
Footnotes
1 Mr. Erwin's last name is incorrectly spelled as “Irwin” in the Complaint and case caption.
2 Mr. Houlihan's testimony, viewed in the light most favorable to Mr. Alfaro, suggests that Southampton never
before executed search warrants or ordered police raids in response to zoning violations. Houlihan Tr. at
56–57. However, Mr. Frano testified that Southampton has executed search warrants in response to zoning
violations approximately ten to fifteen times, generally in the context of summer rental houses. Frano Tr. at
31–32. But even Mr. Frano—who has been performing similar responsibilities since 1982—could not recall
an instance where another commercial business was subjected to a search warrant for a zoning violation,
and conceded it was “possible” that Mr. Alfaro's case was unique. Frano Tr. at 32.
3 The First Amendment precludes Congress from making any law that “abridg[es] ... the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. AMEND.
I. Accordingly, even if Mr. Mees' petitioning for the state to take action could somehow be considered state
action itself, Mr. Mees would likely have immunity from Mr. Alfaro's claims under the First Amendment and
the Noerr–Pennington doctrine. Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 158 (3d
Cir.2001) (finding that the “Noerr–Pennington doctrine provides an immunity for First Amendment activity
allegedly constituting a civil rights abuse” even when “a racially discriminatory animus allegedly motivated the
activity”); but see LeBlanc–Sternberg v. Fletcher, 781 F.Supp. 261, 267 (S.D.N.Y.1991) (holding that the First
Amendment does not protect petitioning motivated by discriminatory animus). Similarly, the First Amendment
protects Mr. Mees' right to use racial slurs during a private dispute, such as a feud with his neighbor Mr.
Alfaro. See Million Youth March, Inc. v. Safir, 63 F.Supp.2d 381, 391 (S.D.N.Y.1999) (“hateful, racist, and
offensive speech ... is entitled to First Amendment protection”).
4 Mr. Mees also contends that summary judgment is also appropriate because Mr. Alfaro's claims against him
violate New York's Strategic Lawsuits Against Public Participation (“SLAPP”) statute. See N.Y. Civ. Rights L.
§ 70–a. But § 70–a does not provide a defendant with grounds for summary judgment. Rather, it permits a
defendant to “maintain an action, claim, cross claim or counterclaim to recover damages, including costs and
attorney's fees” against any plaintiff who files a suit seeking to chill public petitioning and participation. Id.
Here, Mr. Mees has not asserted any SLAPP “action, claim, cross claim or counterclaim” against Mr. Alfaro.
Therefore, the Court does not consider his SLAPP-related arguments.
5 Mr. Alfaro claims that Mr. Tuthill went to his property at night to inspect it. Pl. Stmt. ¶ 2; Alfaro Tr. 56. Based
on the transcript, it appears that Mr. Tuthill's night-time visits took place in connection with his role on the
ZBA, and are thus time-barred. If, however, Mr. Alfaro contends that Mr. Tuthill continued to visit the Property
after the ZBA proceedings concluded, in connection with the search warrant and raid, the Court will grant
him leave to file a motion to reconsider the Court's award of summary judgment in Mr. Tuthill's favor. The
Court cautions Mr. Alfaro, however, that any such motion for reconsideration must be based on a good faith
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belief—supported by admissible evidence—that Mr. Tuthill played some direct or indirect role in the raid. If
Mr. Alfaro baselessly attempts to bring Mr. Tuthill back into this case, sanctions may be appropriate. See
FED. R. CIV. P. 11.
6 Mr. Houlihan's term as Southampton's Chief Building Inspector ended in August of 2001, when he became
West Hampton Beach's Chief Building Inspector. Houlihan Tr. at 5–6.
7 The Southampton Defendants contend that the Town of Southampton Department of Land Management and
Zoning Division is just an administrative agency of the Town of Southampton, and thus not susceptible to suit.
See, generally, S.W. by J.W. v. Warren, 528 F.Supp.2d 282, 302–03 (S.D.N.Y.2007). But the Southampton
Defendants did not include this contention in their Rule 56.1 Statement, and provide no evidentiary support for
it in their briefs. Thus, for now, Mr. Alfaro's claim against the Southampton Department of Land Management
and Zoning Division survives.
8 By hypothetical: assume that a state statute prohibiting robbery permits a municipality to charge a teenage
offender as either a minor or as an adult. Further assume that, over the past 10 years, the municipality had
acted under a de facto policy to never charge minors as adults for that particular offense, and thus had
uniformly prosecuted hundreds of substantially similar offenders as minors, never prosecuting even one minor
offender as an adult. If that overall policy continued, but a prosecutor singled out a single minor offender
to charge as an adult simply because the prosecutor irrationally disliked him, would Engquist completely
foreclose such a “class of one” claim? The Court does not think so.
9 Indeed, a Westlaw search revealed several zoning disputes in recent years which have led to court decisions.
See, e.g., Downing v. Charos, Case No.2006–35225, 2007 WL 4439434 (Table) (N .Y. Sup.Ct., Suffolk
County 2007); Lafiteau v. Guzewicz, Case No. 06–19664, 831 N.Y.S.2d 354 (Table) (N.Y. Sup.Ct., Suffolk
County 2006) (concerning the granting of a special use permit to cure on-going violations); Town Bd. of Town
of Southampton v. Credidio, 21 A.D.3d 547, 800 N.Y.S.2d 732 (2d Dep't 2005). Undoubtedly, most zoning
code violations never reach this stage.
10 The Southampton Defendants did not move for summary judgment on Mr. Alfaro's Monell claim against the
municipality. However, to prevail at trial, Mr. Alfaro must prove the Complaint's allegation that Mr. Frano “was
clothed with the authority to make official government policy, and laws, on behalf of Southampton.” Compl. ¶
168; See Messner v. Calderone, 07–CV–0893, 2008 WL 696909, *4 (N.D.Ill.2008) (permitting a class of one
plaintiff to assert a Monell claim based upon a mayor's allegedly illegal orders). Municipalities cannot be held
liable under § 1983 “by application of the doctrine of respondeat superior.” Roe v. City of Waterbury, 542
F.3d 31, 36 (2d Cir.2008). And, although a municipality can face liability based on its customs or practices,
such a theory is fundamentally inconsistent with Mr. Alfaro's “class of one” status, at least when Mr. Alfaro's
claims depend on only a few events. See, generally, McDorman v. Smith, 05–CV–0448, 2006 WL 2355574,
*7–8 (N.D.Ill.2006) (recognizing the inherent tension between a Monell claim and a “class of one” claim, but
permitting a plaintiff to assert both claims at the pleading stage, noting that plaintiffs are permitted to plead
inconsistent claims).
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2025 WL 1033836
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jaiquan ALLAH, Plaintiff,
v.
Ryan LAWSON, Sergeant; Aragona, Sergeant; Stratta,
Sergeant; Grimmick, Sergeant; Anthony Torrisi,
Lieutenant; Thomas Pleat, Correctional Officer; Adam
Molesky, Correctional Officer; Carol Ann Cavanaugh,
Grievance Coordinator/Hearing Officer; Bonnaci,
Correctional Officer; Andrew Lacrosse, Correctional
Officer, Badge #434; Andrew Cohen, formerly
known as John Doe, Badge #257; and Paul Spadinger,
formerly known as John Doe, Badge # 329, Defendants.
9:23-CV-0785 (LEK/ML)
|
Signed February 18, 2025
Attorneys and Law Firms
JAIQUAN ALLAH, Pro Se Plaintiff, Upstate Correctional
Facility, Post Office Box 2001, Malone, New York 12953.
KEVIN CANNIZZARO, ESQ., ALBANY COUNTY
ATTORNEY'S OFFICE, Counsel for Defendants, 112 State
Street, Albany, New York 12207.
REPORT and RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Currently before the Court, in this civil rights action filed
by Jaiquan Allah (“Plaintiff”) against Ryan Lawson, Aragona,
Stratta, Gimmick, Anthony Torrisi, Thomas Pleat, Adam
Molesky, Carol Ann Cavanaugh, Bonnaci, Lacoozi, Andrew
Cohen, and Paul Spadinger (collectively “Defendants”), is
Defendants’ motion to dismiss for failure to state a claim upon
which relief may be granted and judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c). (Dkt. No. 49.)
For the reasons set forth below, I recommend that Defendants
motion be granted in part and denied in part.
I. BACKGROUND
A. Procedural History
On June 29, 2023, Plaintiff commenced this action by the
filing of a Complaint. (Dkt. No. 1.) On July 31, 2023, Plaintiff
filed a motion for leave to proceed in forma pauperis (“IFP”).
(Dkt. No. 5.)
On September 19, 2023, Senior United States District Judge
Lawrence E. Kahn granted Plaintiff's IFP application and
ordered that the following claims survive sua sponte review:
(1) Plaintiff's First Amendment retaliation claim against
Defendant Torrisi based on the search of Plaintiff's cell
and issuance of a false misbehavior report against him
on February 26, 2023, in response to a lawsuit Plaintiff
filed regarding a “slip and fall accident” that occurred
two days earlier; (2) Plaintiff's First Amendment retaliation
claim against Defendants Molesky, Lawson, and Spadinger
based on these officials searching Plaintiff's cell and issuing
him a false misbehavior report on March 18, 2023, in
response to Plaintiffs submission of a grievance on February
28, 2023; (3) Plaintiff's First Amendment retaliation claim
against Defendant Lawson based on this official placing
Plaintiff on suicide watch on March 23, 2023, in response
to Plaintiff's submission of a grievance regarding the cell
search on March 18, 2023; (4) Plaintiff's First Amendment
retaliation claim against Defendants Aragona and Pleat based
on these officials destroying (or directing others to destroy)
Plaintiff's personal property following his stated intent to file
a grievance against them on May 14, 2023; (5) Plaintiffs
First Amendment retaliation claim against Defendants Stratta
and Pleat based on these officials initiating a use-of-
force incident on May 20, 2023, in response to Plaintiff's
earlier engagement in protected activity; (6) Plaintiff's Fourth
Amendment unlawful strip frisk claim against Defendants
Aragona and Pleat based on the strip search that occurred
on May 14, 2023; (7) Plaintiff's Fourteenth Amendment
conditions-of-confinement claim against Defendant Lawson
based on his exposing Plaintiff to cold temperatures in
the suicide watch cell for hours on March 23, 2023; (8)
Plaintiff's Fourteenth Amendment conditions-of-confinement
claims against Defendants Aragona and Lawson based on
their denial of Plaintiff's access to the bathroom on May 20,
2023; (9) Plaintiff's Fourteenth Amendment excessive force
claims against Defendants Stratta, Pleat, Bonnaci, Lacoozi,
Lawson, Spadinger, and Cohen based on the alleged use of
force incident that occurred on May 20, 2023; (10) Plaintiff's
Fourteenth Amendment failure-to-intervene claims against
Defendants Aragona and Grimmick based on the alleged
use of force incident that occurred on May 20, 2023; (11)
Plaintiff's Fourteenth Amendment disciplinary due process
claim against Defendant Cavanaugh based on Defendant
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Cavanaugh's disciplinary sanction imposed against Plaintiff
on May 24, 2023; and (12) Plaintiff's Fourteenth Amendment
equal protection claim against Defendant Lawson based on
his use of racial slurs in connection with placing Plaintiff
on suicide watch and subjecting Plaintiff to excessive force.
(Dkt. No. 8 at 13-25.) Judge Kahn dismissed without
prejudice all remaining claims and terminated Defendants
Sheehan and Grimes from this action. (Id. at 27-28.)
*2 On February 2, 2024, Defendants filed a verified answer.
(Dkt. No. 23.) On February 7, 2024, Defendants filed an
amended verified answer. (Dkt. No. 25.)
On March 13, 2024, Plaintiff filed an amended complaint
naming the Doe defendants. (Dkt. No. 31.)
On March 21, 2024, the undersigned issued a text order that,
among other things, directed the Clerk of the Court to update
the docket with respect to identifying defendants who were
previously listed as “John Doe.” (Dkt. No. 33.)
On March 21, 2024, the Clerk of the Court filed Plaintiff's
Amended Complaint pursuant to the undersigned's directive.
(Dkt. No. 34.) On May 17, 2024, Plaintiff filed a one-
page document titled “Amendment of Complaint – Adding
Damages,” which purports to amend the relief requested in
the complaint “by inserting punitive damages in the amount
of $500,000” and “compensatory damages in the amount of
$2,850,000.” 1 (Dkt. No. 48.)
On May 28, 2024, Defendants filed the pending motion to
dismiss for failure to state a claim upon which relief may be
granted and judgment on the pleadings. (Dkt. No. 49.)
B. Parties’ Briefing on Defendants’ Motion to Dismiss
1. Defendants’ Memorandum of Law
Generally, in support of their motion to dismiss, Defendants
assert that Plaintiff fails to state a claim upon which relief may
be granted. (See generally Dkt. No. 49, Attach. 2.)
More specifically, with respect to Plaintiff's First Amendment
retaliation claim related to the misbehavior report of February
26, 2023, Defendants argue that Plaintiff failed to allege that
Defendant Torrisi took any adverse action against Plaintiff
because the filing of a “false misbehavior report[ ] is, at best,
[a] de minimis action.” (Dkt. No. 49, Attach. 2 at 15.) In
addition, Defendants argue that the Amended Complaint fails
to allege non-conclusory allegations sufficient to connect the
slip and fall grievance and the allegedly false misbehavior
report of February 26, 2023. (Id.) Defendants argue that the
Amended Complaint fails to allege facts plausibly suggesting
that Defendant Torrisi's shake down of Plaintiff and multiple
other inmates was substantially motivated by Plaintiff's
prior grievance. (Id.) In addition, Defendants assert that the
documents attached to the Amended Complaint show that
Defendants would have taken the allegedly adverse action
of filing the misbehavior report, even in the absence of
Plaintiff's grievance because Plaintiff attempted to pass an
item to another inmate and refused to surrender the item when
directed. (Dkt. No. 49, Attach. 2 at 15-16.)
With respect to Plaintiff's First Amendment retaliation claim
related to the misbehavior report of March 18, 2023,
Defendants argue that the Amended Complaint fails to allege
(1) an adverse action, or (2) a causal connection between
an alleged adverse action and the protected conduct. (Dkt.
No. 49, Attach. 2 at 16-18.) Defendants argue that an
allegedly false misbehavior report is not an adverse action
because it would not deter a similarly situated inmate. (Id.)
Defendants also assert that the Amended Complaint is devoid
of allegations connecting a specific grievance with Plaintiff
allegedly getting set up to “get his ass beat,” the search of his
cell, and the misbehavior report that was filed on March 18,
2023. (Id.) Further Defendants argue that, as evidenced by the
documents attached to the Amended Complaint (1) Plaintiff
was found guilty of the contraband (loose screw) found in
his cell, (2) Plaintiff pleaded guilty to the charges stemming
from the fight with another inmate, and (3) Defendants would
have taken the adverse action even in the absence of Plaintiff's
grievances based on the odor of smoke, burnt rolled toilet
paper located in his cell, and loose screw located in his cell.
(Id.)
*3 With respect to Plaintiff's First Amendment retaliation
claim related to searches of his cell, Defendants argue that
retaliatory searches of an inmate and their cell are not
actionable. (Dkt. No. 49, Attach. 2 at 18-20.) Defendants
assert that wholly random searches are essential to effective
security and even searches conducted with retaliatory intent
or those that are especially thorough in execution are not
adverse actions. (Id.) Defendants assert that the Amended
Complaint fails to assert facts plausibly suggesting a causal
connection between Plaintiff's protected speech and the
allegedly retaliatory searches. (Id.) Finally, Defendants argue
that, based on the documents attached to the Amended
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Complaint, even in the absence of Plaintiff's protected speech,
the searches would have occurred because they were in
response to (1) Plaintiff passing a note to a fellow inmate, and
(2) the odor of smoke generated by burning toilet paper. (Id.)
With respect to Plaintiff's retaliatory administrative
segregation in the suicide watch cell claim, Defendants argue
that it should be dismissed because it was an administrative
action taken because of the fight that Plaintiff was admittedly
involved in “in Medical” between Plaintiff and another
inmate. (Dkt. No. 49, Attach. 2 at 20-21.) Defendants
argue that the record belies Plaintiff's allegation that he
was placed on suicide watch, instead, Defendants assert that
Plaintiff was placed in administrative segregation based on
the fight “in Medical.” (Id.) Moreover, Defendants argue that
Plaintiff fails to allege facts plausibly suggesting a causal
connection between his placement in a suicide watch cell (or,
administrative segregation) and any protected speech. (Id.)
With respect to Plaintiff's retaliatory destruction claim,
Defendants argue that the Amended Complaint fails to allege
facts plausibly suggesting that Defendants Aragona and Pleat
were personally involved in the destruction of his property.
(Dkt. No. 49, Attach. 2 at 21-22.)
With respect to Plaintiff's First Amendment Retaliation claim
related to the alleged use-of-force incident on May 20,
2023, Defendants argue that the Amended Complaint fails
to allege facts plausibly suggesting that the use of force
was precipitated by any specific grievance or investigation.
(Dkt. No. 49, Attach. 2 at 22-24.) Defendants argue that the
documents attached to the Amended Complaint indicate that
the use of force was appropriate, not retaliatory, and would
have been used in the absence of any grievance. (Id.)
With respect to Plaintiff's Fourth Amendment strip frisk
claim, Defendants argue that the documents attached to the
Amended Complaint and the grievance that Plaintiff filed
undermine Plaintiff's allegation that Defendant Pleat was
involved in the strip search. (Dkt. No. 49, Attach. 2 at
24-25.) Moreover, Defendants argue that because routine,
random strip searches of inmates do not violate the Fourth
Amendment, the strip search of Plaintiff and five other
inmates on May 14, 2023, is not actionable and should be
dismissed. (Id.)
With respect to Plaintiff's Fourteenth Amendment conditions
of confinement claims, Defendants argue that they must be
dismissed. (Dkt. No. 49, Attach. 2 at 26-28.) Defendants
assert that Plaintiff failed to assert facts plausibly suggesting
that placement in the suicide watch cell constituted “atypical
action” resulting in a “significant deprivation” of any liberty
interest he may have possessed. (Id.) Moreover, Defendants
argue that the Amended Complaint does not allege that
Plaintiff's placement in the suicide watch cell posed a
substantial risk of serious harm or that Defendant Lawson
possessed sufficient culpable intent. (Id.) With respect to the
May 20, 2023, denial of the bathroom use, Defendants argue
that Plaintiff's failure to mention denial of the bathroom in
his grievance dated May 21, 2023, related to the incident,
“indicates that the allegation is false and must be dismissed as
wholly contradicted by a sworn statement he relies on.” (Id.
at 28.) In addition, Defendants argue that Plaintiff failed
to allege any “serious physical harm or a serious risk of
contamination” arising out of the claimed conduct, nor has he
overcome the proposition that urinating on himself, without
more, does not rise to a Constitutional violation. (Id.)
*4 With respect to Plaintiff's Fourteenth Amendment
excessive force claims, Defendants argue that the documents
attached to the Amended Complaint reflect that the use of
force was either (1) objectively reasonable, or (2) de minimus.
(Dkt. No. 49, Attach. 2 at 28-30.) Defendants argue that
Plaintiff was the subject of a weekly security risk group shake
down, Plaintiff threw his shirt at staff and punched officers;
officers unsuccessfully attempted to gain control through
verbal directives and ultimately administered OC spray. (Id.)
With respect to Plaintiff's failure to intervene claims,
Defendants argue that the Amended Complaint fails to allege
facts plausibly suggesting that Defendants Aragona and
Grimmick were present during the use of force incident and
thus, had a fair opportunity to intervene. (Dkt. No. 49, Attach.
2 at 30-31.)
With respect to Plaintiff's Fourteenth Amendment
disciplinary due process claim, Defendants argue that it
must be dismissed because a 60-day confinement in the
SHU, even coupled with the loss of assorted privileges and
the imposition of a surcharge, did not implicate a liberty
interest under the Fourteenth Amendment. (Dkt. No. 49,
Attach. 2 at 31-32.) Moreover, Defendants argue that in light
of the “commonplace imposition of SHU placement as a
disciplinary sanction, Plaintiff's confinement cannot plausibly
be characterized as ‘atypical’ or a ‘significant deprivation’
with respect to similarly situated inmates.” (Id. at 32.)
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With respect to Plaintiff's Fourteenth Amendment equal
protection claims, Defendants argue that the Amended
Complaint fails to allege facts plausibly suggesting any
concomitant physical injury with the alleged racial slurs,
sufficient to elevate them to Constitutionally actionable
speech. (Dkt. No. 49, Attach. 2 at 32.)
2. Plaintiff's Response in Opposition
Generally, in opposition to Defendants’ motion to dismiss,
Plaintiff argues that (1) with respect to his First Amendment
retaliation claim arising out of the misbehavior report of
February 26, 2023, Defendant Torrisi authorized officers
to shake Plaintiff down and issue him a ticket, which
is sufficiently adverse to plausibly suggest a claim for
retaliation; (2) with respect to his First Amendment retaliation
claim related to the misbehavior report of March 18, 2023,
he sufficiently alleged a causal connection between the cell
ambush and his grievance of February 28, 2023 because (a)
Defendant Molesky warned Plaintiff not to “start a war you
can't finish,” (b) there was no justification for the search
including no physical evidence of the alleged odor of smoke
or burnt rolls allegedly located in Plaintiff's cell, (c) there was
no body worn camera footage of the search and there should
have been, and (d) Plaintiff was found not guilty of the loose
screw ticket; (3) with respect to the retaliatory searches of
Plaintiff's cell, the incident on (a) February 26, 2023, involved
passing a note, which is not dangerous and does not provide
a basis for conducting a search and, in any event, no hearing
was ever held which “shows the intent, motive, and animosity
[Defendant] Torrisi had towards Plaintiff,” and (b) March 18,
2023, resulted in a misbehavior report, which indicated that
the search was conducted 21 minutes after Plaintiff left for
recreation so (Plaintiff argues) it is doubtful that smoke was
emanating from his cell; (4) with respect to the retaliatory
admission to the suicide cell watch, Defendant Lawson
told Plaintiff that if he writes another grievance, Defendant
Lawson will make sure Plaintiff stays in the SHU forever,
then placed Plaintiff in suicide watch without the required
mental health evaluation; (5) with respect to his retaliatory
destruction of property claim, the search was extraordinary
in that, almost everything in Plaintiff's cell was destroyed,
and after conclusion of the strip search, Defendant Aragona
stated “... fuck this all was for nothing”; (6) with respect to
the First Amendment Retaliation claim related to the use of
force incident on May 20, 2023, the close temporal proximity
between Plaintiff's receipt that the Notice of Claim for his
slip and fall incident was delivered on May 17, 2023, and the
premeditated attack on May 20, 2023, sufficiently alleges a
causal connection to survive Defendants’ motion to dismiss;
(7) with respect to the Fourth Amendment unlawful strip
frisks claims, (a) his grievance mentioned “John Doe badge
#166,” who has since been identified as Defendant Pleat,
and (b) Defendants Aragona and Pleat lacked reasonable
cause to believe that Plaintiff was engaging in misconduct or
criminal activity before the strip search; (8) with respect to
his Fourteenth Amendment conditions of confinement claim,
Defendant Lawson failed to act with reasonable care when
he placed Plaintiff in a suicide watch cell with the window
open, causing the temperature in the cell to be “freezing” and
telling Plaintiff that if he writes another grievance, Defendant
Lawson would be sure that Plaintiff stays in the cold cell
forever; (9) with respect to the excessive force claim, (a)
he complied with orders and did not resist, and (b) when
he was cleared from the scanning machine he was sent to
the booking room where the beating began, he was then
put in handcuffs and escorted to medical where the beating
continued in the medical shower, he was then evaluated by
a nurse in medical and assaulted again, he was then strapped
to a chair while still handcuffed and punched and kicked
again, all of which was unreasonable; (10) with respect to
his Fourteenth Amendment disciplinary due process claim he
adequately alleged a violation because (a) he was not present
during the entirety of his disciplinary hearing, and (b) he
was not permitted to present witnesses and evidence; (11)
with respect to his Fourteenth Amendment equal protection
claims, Defendant Lawson's racial slur and Plaintiff's physical
and mental injuries sustained on March 23, 2023, and May
20, 2023, were sufficient; (12) with respect to his Fourteenth
Amendment failure to intervene claim, Defendants Aragona
and Grimmick knew, based on comments made by other
officers, that an assault against Plaintiff was forthcoming,
and—instead of “part[ing] ways”—they should have made
an effort to stop or limit the amount of force applied. (See
generally Dkt. No. 57.)
II. LEGAL STANDARD GOVERNING MOTIONS TO
DISMISS FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED 2
*5 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.
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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,
a few words regarding that ground are 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). 3
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).
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, 127 S. Ct. 1955 (2007). In
doing so, the Court “retire[d]” the famous statement by the
Court in Conley v. Gibson, 355 U.S. 41, 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 1968-69. 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 1965-74. 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 1965. 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.
*6 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).
However, “in 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. 2007) (Sharpe, M.J.)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other
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citations omitted). The Second Circuit has opined that the
court is obligated to “ ‘make reasonable allowances to protect
pro se litigants’ ” from inadvertently forfeiting legal rights
merely because they lack a legal education. Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a result,
Twombly and Iqbal notwithstanding, the court must continue
to “construe [a complaint] broadly, and interpret [it] to raise
the strongest arguments that [it] suggests.” Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
III. ANALYSIS 4
A. Whether Plaintiff Sufficiently Alleged a First
Amendment Retaliation Claim Against Defendant
Torrisi
After carefully considering the matter, I answer this question
in the affirmative for the reasons set forth below.
A cognizable claim of retaliation pursuant to 42 U.S.C. §
1983 lies when prison officials take an adverse action against
an inmate that is motivated by the inmate's exercise of a
constitutional right, including the free speech provisions of
the First Amendment. See Friedl v. City of N.Y., 210 F.3d
79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will
lie where the government takes negative action against an
individual because of his exercise of rights guaranteed by
the Constitution or federal laws.”). As the Second Circuit
has repeatedly cautioned, however, because such claims are
easily incanted and inmates often attribute adverse action,
including the issuance of misbehavior reports, to retaliatory
animus, courts must approach such claims “with skepticism
and particular care.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir. 2001), overruled on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord,
320 F.3d 346, 352 (2d Cir. 2003).
*7 To state a prima facie claim pursuant to 42 U.S.C. §
1983 for retaliatory conduct, a plaintiff must advance non-
conclusory allegations establishing that (1) the conduct at
issue was protected, (2) the defendants took adverse action
against the plaintiff, and (3) there was a causal connection
between the protected activity and the adverse action–in
other words, that the protected conduct was a “substantial
or motivating factor” in the prison officials’ decision to take
action against the plaintiff. Mount Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano,
497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, 99-
CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003)
(Sharpe, M.J.).
For purposes of this motion, it is undisputed that Plaintiff
engaged in constitutionally protected speech by the filing
of a grievance and/or lawsuit. (Dkt. No. 49, Attach. 2 at
14-15 [“Defendants concede that the filing of grievances
is protected speech.”]); see Davis v. Goord, 320 F.3d at
352-53 (“[T]he filing of prison grievances is a constitutionally
protected activity.”); Flood v. Cappelli, 18-CV-3897, 2019
WL 3778736, at *7 (S.D.N.Y. Aug. 2, 2019) (collecting cases)
(holding that the filing of a grievance is protected speech).
Although a “prison inmate has no constitutionally guaranteed
immunity from being falsely or wrongly accused of conduct
which may result in the deprivation of a protected liberty
interest,” Freeman v. Rideout, 808 F.3d 949, 951 (2d Cir.
1986), there are “two exceptions to this rule: when an
inmate is ‘able to show either (1) that he was disciplined
without adequate due process as a result of the report; or
(2) that the report was issued in retaliation for exercising a
constitutionally protected right.” Willey v. Kirkpatrick, 801
F.3d 51, 64 (2d Cir. 2015) (citing Freeman, 808 F.2d at
951-53; Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir. 1988)).
Plaintiff's claim relates to the second exception set forth in
Willey; Plaintiff alleges that he was issued the misbehavior
report in retaliation for exercising a constitutionally protected
right. Thus, the undersigned rejects Defendants’ assertion that
Plaintiff's retaliation “claim must be dismissed, because as a
matter of law, false accusations in a misbehavior report do not
state a cause of action under 42 U.S.C. § 1983.” (Dkt. No. 49,
Attach. 2 at 14.)
Moreover, I reject Defendants’ assertion that the alleged false
misbehavior report was de minimis.” (Id. at 15.) Plaintiff
alleges that Defendant Torrisi directed a “shake down” of
Plaintiff—which the undersigned interprets to mean a strip
search—and issued a false ticket (Dkt. No. 34 at 7), which
“could constitute sufficiently adverse actions that would
deter a prisoner of ‘ordinary firmness’ from exercising his
rights.” Abreu v. Lipka, 778 F. App'x 28, 33 (2d Cir. 2019)
(holding that “a severe beating, false misbehavior reports,
or the withholding of medication” each individually, could
constitute an adverse action).
Defendants argue, without any citation to the record, that
“Plaintiff concedes that false misbehavior reports did not
constitute the type of action that would deter a similarly
situated inmate, who may be required to tolerate more
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than both public employees and average citizens, from
exercising their constitutional rights.” (Dkt. No. 49, Attach.
2 at 15.) To the extent that Defendants’ assertion is
based on the conclusion that Plaintiff was not deterred
from filing additional grievances, I reject that argument.
While “[i]t might seem that, because [an inmate] continued
to file grievances even after the alleged retaliation, the
defendants’ actions were not sufficiently adverse ... such a
view misperceives what constitutes adverse action. The test
is objective, and the plaintiff is not required to show that he
was actually deterred.” Brandon v. Kinter, 938 F.2d 21, 40 (2d
Cir. 2019).
*8 In addition, at this stage of the litigation, Plaintiff
adequately alleges a causal connection between his protected
speech and the adverse actions he experienced on February
26, 2023. First, the incident on February 26, 2023, followed
closely in time to Plaintiff's protected speech. (Dkt. No.
34 at 7 [alleging that the incident happened “2 days after
Plaintiff[’s] slip and fall incident”]); see Espinal v. Goord,
558 F.3d 119, 129 (2d Cir. 2009) (“[a] plaintiff can establish
a causal connection that suggests retaliation by showing that
protected activity was close in time to the adverse action”).
Second, the Amended Complaint alleges that immediately
preceding the incident with Defendant Torrisi on February
26, 2023, Defendant Torrisi asked Plaintiff about his lawsuit
and when Plaintiff declined to discuss, Defendant Torrisi
allegedly said “you wanna play games, I can play too.” (Dkt.
No. 34 at 7.) These alleged statements by Defendant Torrisi
provide further context for the incident and causally connect
Plaintiff's protected speech with the alleged shakedown and
false misbehavior report.
Finally, the undersigned rejects Defendants’ circular
argument that the false misbehavior report establishes that
Defendants would have taken the same action (issuing the
misbehavior report) in the absence of Plaintiff's protected
conduct. In addition, the Amended Complaint alleges that
the basis for the misbehavior report—that Plaintiff was
passing something to another inmate—was merely a post hoc
justification for the search of Plaintiff. (Dkt. No. 34 at 7.)
As a result, I recommend that Defendants’ motion to
dismiss Plaintiff's First Amendment retaliation claim against
Defendant Torrisi be denied.
B. Whether Plaintiff Sufficiently Alleged a First
Amendment Retaliation Claim Against Defendants
Molesky, Lawson, and Spadinger
After carefully considering the matter, I answer this question
in the affirmative.
First, as set forth above in Part III.A. of this Report and
Recommendation, the first element of a retaliation claim does
not appear to be in dispute. (Dkt. No. 34 at 7 [alleging that
Plaintiff turned in a grievance on February 28, 2023]; Dkt.
No. 49, Attach. 2 at 16-18 [Defendants arguments related to
this claim, which do not raise the issue of whether Plaintiff
engaged in protected activity].)
Second, as set forth above in Part III.A. of this Report
and Recommendation, I reject Defendants’ argument that a
false misbehavior report cannot constitute an adverse action.
Plaintiff alleges that he was set up to “get his ass beat” and his
cell was searched during which a loose screw was planted by
officers and a false misbehavior report was written as a result.
(Dkt. No. 34 at 7.) “The planting of evidence and issuance
of a false misbehavior report based upon that evidence has
been found to constitute adverse action for purposes of a
retaliation claim.” Shakur v. Thomas, 14-CV-0427, 2016 WL
11478237, at *11 (N.D.N.Y. June 2, 2016) (Dancks, M.J.)
(collecting cases), report and recommendation adopted, 2016
WL 4617242 (N.D.N.Y. Sept. 6, 2016) (D'Agostino, J.);
accord Henson v. Gagnon, 13-CV-0590, 2015 WL 9809874,
at *10 (N.D.N.Y. Dec. 10, 2015) (Dancks, M.J.), report and
recommendation adopted, 2016 WL 204494 (N.D.N.Y. Jan.
15, 2016) (Suddaby, C.J.).
Third, at this juncture, the temporal proximity between
Plaintiff's protected speech on February 28, 2023, and the
incident on March 18, 2023, is enough to plausibly suggest
a causal connection. See Brandon v. Kinter, 13-CV-0939,
2023 WL 2382637, at *23 (N.D.N.Y. Mar. 6, 2023) (Sannes,
C.J.) (finding that three weeks between the grievances and
adverse action was sufficiently close temporal proximity to
plausibly infer retaliatory intent and causal connection); Zaire
v. Doe, 03-CV-0629, 2006 WL 1994848, at *5 (N.D.N.Y.
July 13, 2006) (Scullin, J.) (finding that two weeks between
Plaintiff's protected speech and the adverse action sufficient
circumstantial evidence of retaliation for purposes of a causal
connection). In addition, the Amended Complaint alleges that
when he filed his grievance, Defendant Molesky—who was
involved in the subsequent alleged search and planting of
the loose screw in Plaintiff's cell—forewarned Plaintiff to
not “start a war you can't finish.” (Dkt. No. 34 at 7.) Thus,
I find that the Amended Complaint adequately alleged a
causal connection between Plaintiff's protected speech and the
adverse actions.
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*9 Finally, I reject, at this juncture, Defendants’ argument
that Plaintiff's retaliation claim should be dismissed because
they would have taken the same action in the absence of
Plaintiff's protected speech. Plaintiff alleges that the loose
screw was planted by Defendants and thus, even if there was
an independent basis for the search, Defendants present no
basis for planting contraband in Plaintiff's cell.
As a result, I recommend that Defendants’ motion to
dismiss Plaintiff's First Amendment retaliation claim against
Defendants Molesky, Lawson, and Spadinger be denied.
C. Whether Plaintiff Sufficiently Alleged a First
Amendment Retaliation Claim Against Defendant
Lawson Based on Placement in Suicide Watch
After carefully considering the matter, I answer this question
in the affirmative.
The undersigned rejects Defendants’ argument that Plaintiff
failed to allege facts plausibly suggesting a causal connection
between his placement in the suicide watch cell and his
protected speech. (Dkt. No. 49, Attach. 2 at 20-21.) The
Amended Complaint alleges that Plaintiff was placed in the
suicide watch cell by Defendant Lawson two days after
filing a grievance with Defendant Lawson. (Dkt. No. 34
at 8.) As set forth above, the temporal proximity between
Plaintiff's protected speech and the alleged adverse action
are enough at this procedural posture to sufficiently infer a
causal connection. See Hendricks v. Mallozzi, 20-CV-1035,
2022 WL 1129887, at *5 (N.D.N.Y. Jan. 14, 2022) (Lovric,
M.J.) (citations omitted) (“Although there is significant case
law to support the contention that temporal proximity alone
is insufficient to survive a motion for summary judgment, the
same is not true at the motion to dismiss stage.”), report and
recommendation adopted, 2022 WL 856885 (N.D.N.Y. Mar.
23, 2022) (D'Agostino, J.).
In addition, the Amended Complaint alleges that “[a]fter
placing Plaintiff in the [suicide watch] cell [Defendant]
Lawson said ‘your [sic] in my custody now, black monkey.
You play by my rules. If you write another grievance, I'll make
sure you'll stay here forever.’ ” (Dkt. No. 34 at 8.) Defendant
Lawson's alleged statement also provides support that a causal
connection exists between Plaintiff's protected speech and the
allegedly adverse action.
Although Defendants argue that Plaintiff was placed in the
suicide watch cell as an administrative action, the Amended
Complaint does not appear to contest Plaintiff's placement
in the SHU. (Compare Dkt. No. 34 at 8, with Dkt. No. 49,
Attach. 2 at 24-25.) Plaintiff's issue relates to his placement in
a specific cell within the SHU—the suicide watch cell—with
the window open by Defendant Lawson. (Dkt. No. 34 at 8.)
As a result, I recommend that Defendants’ motion to
dismiss Plaintiff's First Amendment retaliation claim against
Defendant Lawson based on Plaintiff's placement in the
suicide watch cell be denied.
D. Whether Plaintiff Sufficiently Alleged a First
Amendment Retaliation Claim Against Defendants
Aragona and Pleat Based on Property Destruction
After carefully considering the matter, I answer this question
in the negative for the reasons stated in Defendants’
memorandum of law. (Dkt. No. 49, Attach. 2 at 21-22.)
Plaintiff fails to allege the personal involvement of
Defendants Aragona and Pleat in the alleged destruction of
his property. (Dkt. No. 34 at 10.) Instead, Plaintiff alleges
that Defendants Aragona and Pleat conducted a scan and
strip search of his person, made inappropriate comments, and
when he returned to “his cell, all his property was destroyed
including his commissary and clothes.” (Id.) The Amended
Complaint fails to allege facts plausibly suggesting who was
responsible for the destruction of Plaintiff's property in his
cell. Plaintiff's argument that “[t]his was no ordinary search
on [his] cell,” does not change the fact that he fails to allege
who was responsible for the alleged adverse action.
*10 As a result, I recommend that Defendants’ motion to
dismiss Plaintiff's First Amendment retaliation claim against
Defendants Aragona and Pleat based on the destruction of
property in Plaintiff's cell, be granted.
E. Whether Plaintiff Sufficiently Alleged a First
Amendment Retaliation Claim Against Defendants
Stratta and Pleat Based on Use of Force on May 20,
2023
After carefully considering the matter, I answer this question
in the affirmative.
Contrary to Defendants’ assertions, Plaintiff sufficiently
alleges that the use of force incident with Defendants Stratta
and Pleat was in retaliation for grievances filed and his notice
of claim. (Dkt. No. 34 at 11); see Barnett v. City of Yonkers,
15-CV-4013, 2018 WL 4680026, at *9 (S.D.N.Y. Sept. 28,
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2018) (holding that the plaintiff “engaged in protected speech
by filing the notice of claim”).
Plaintiff alleges that on May 17, 2023, he received a certified
mail receipt that the Albany County Clerk and the Municipal
Government Agency received the Notice of Claim regarding
his slip and fall incident on February 24, 2023. (Dkt. No.
34 at 11.) Plaintiff alleges that during the alleged incident
Defendant Stratta stated, “we seen the little grievance you
wrote and your notice of claim.” (Id.) Thus, even assuming
arguendo that the reference to “little grievance” was not
sufficiently clear (because Plaintiff filed multiple grievances),
the Amended Complaint contains reference to only one
Notice of Claim. (See generally Dkt. No. 34.) Therefore, the
undersigned rejects Defendants’ argument that the allegations
are “generally conclusory and unsupported” regarding the
protected conduct that triggered the incident with Defendants
Stratta and Pleat. (Dkt. No. 49, Attach. 2 at 24.)
To the extent that Defendants present a different factual
recitation of the alleged incident, at this juncture, the Court
must accept the factual allegations contained in the Amended
Complaint.
As a result, I recommend that Defendants’ motion to
dismiss Plaintiff's First Amendment retaliation claim against
Defendants Stratta and Pleat based on the use of force on May
20, 2023, be denied.
F. Whether Plaintiff Sufficiently Alleged a Fourth
Amendment Unlawful Strip Search Claim
After carefully considering the matter, I answer this question
in the affirmative (albeit, barely).
Plaintiff asserts in his opposition memorandum of law, that
John Doe badge #166—who was identified in his grievance
—is Defendant Pleat. (Dkt. No. 57 at 8 [referring to Dkt.
No. 34, Attach. 1 at 9].) Although Plaintiff did not direct the
Court to any portion of the Amended Complaint supporting
his assertion that Defendant Pleat is John Doe badge #166,
given Plaintiff's pro se status, the Court may consider it.
See Drake v. Delta Airlines, Inc., 147 F.3d 169, 170, n. 1
(2d Cir. 1998) (per curiam) (“[W]e deem Drake's complaint
to include the facts contained in his memorandum of law
filed in response to Delta's 1996 motion to dismiss.”); Gill v.
Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (“In his affidavit
submitted in opposition to defendants’ motion to dismiss,
Gill asserts that Mooney's actions amounted to deliberate
and willful indifference. Liberally construed under pro se
pleading standards, Gill's allegations against Mooney involve
more than ordinary lack of due care for the prisoner's interests
or safety, ... and therefore state a colorable claim under the
Eighth and Fourteenth Amendments.”) (internal quotation
marks and citation omitted); Donhauser v. Goord, 314 F.
Supp. 2d 119, 121 (N.D.N.Y. 2004) (Sharpe, M.J.) (“[I]n
cases where a pro se plaintiff is faced with a motion to
dismiss, it is appropriate for the court to consider materials
outside of the complaint to the extent they “are consistent
with the allegations in the complaint.”) (collecting district
court cases), vacated on other grounds, 317 F. Supp. 2d
160 (N.D.N.Y. 2004) (Hurd, J.). Hence, the undersigned
rejects Defendants argument that Plaintiff failed to allege
the personal involvement of Defendant Pleat because the
grievance did not mention Defendant Pleat. 5
*11 To the extent that Defendants argue that the search was
per se constitutional as a “routine, random strip search,” (Dkt.
No. 49, Attach. 2 at 24-25) I reject that argument for two
reasons.
First, the Amended Complaint alleges that Plaintiff
experienced a visual body cavity search, not a strip search. A
strip search is “an inspection of a naked individual, without
any scrutiny of the subject body's cavities.” Harris, 818 F.3d
at 58. “A strip search is distinguishable from a ‘visual body
cavity search,’ which extends to visual inspection of the
anal and genital areas, or a ‘manual body cavity search,’
which includes some degree of touching or probing of body
cavities.” Jenkins v. City of New York, 18-CV-7024, 2020 WL
6700087, at *2 n.4 (E.D.N.Y. Nov. 12, 2020) (quoting Harris,
818 F.3d at 58). The scope of the intrusion varies with the type
of search and visual body cavity searches are more intrusive
than a mere strip search. 6 Harris, 818 F.3d at 58. Plaintiff
alleges that Defendant Pleat directed Plaintiff to “spread your
ass, so I can see inside your black ass,” to bend over, and to
squat three times. (Dkt. No. 34 at 10.) Hence, Defendants’
blanket argument (that the search was constitutional because
it was routine and random), which applies to a mere strip
search, is inapplicable. See Bell v. Wolfish, 441 U.S. 520,
559 (1979) (“The test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application.”). Moreover, the Amended Complaint appears to
allege that the visual body cavity search was not routine and
random, but that Plaintiff was singled out in retaliation for his
protected speech. (Dkt. No. 34 at 10.)
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Second, at this juncture, the record is incomplete and lacking
relevant information to properly analyze whether Defendants
Aragona and Pleat infringed Plaintiff's right to bodily privacy.
“Courts assessing an inmate's claim that officers infringed
his or her right to bodily privacy must undertake a two-part
inquiry: (1) First, the court must determine whether the inmate
has ‘exhibit[ed] an actual, subjective expectation of bodily
privacy’; and (2) second, the court must determine ‘whether
the prison officials had sufficient justification to intrude on
[the inmate's] fourth amendment rights.’ ” Harris v. Miller,
818 F.3d 49, 57 (2d Cir. 2016) (quoting Covino v. Patrissi,
967 F.2d 73, 77-78 (2d Cir. 1992)).
With respect to the first inquiry, “there is no dispute that a
visual body cavity search is a ‘serious invasion of privacy.’
” Velez-Shade v. Population Mgmt., 18-CV-1784, 2019 WL
4674767, at *9 (D. Conn. Sept. 25, 2019) (citing Harris, 818
F.3d at 58). Thus, at this early stage, the undersigned will
assume that Plaintiff had an “actual, subjective expectation
of bodily privacy” that society was prepared to accept
as reasonable. See Velez-Shade, 2019 WL 4674767, at
*9 (concluding that the plaintiff had an actual, subjective
expectation of bodily privacy where the plaintiff was required
to squat and cough during a strip search).
With respect to the second inquiry, Plaintiff's Fourth
Amendment claim challenges an isolated search—as opposed
to a prison or jail policy or regulation—and thus, the Court
must apply the standard set forth in Bell v. Wolfish, 441 U.S.
520 (1979):
*12 [i]n each case it requires a
balancing of the need for the particular
search against the invasion of personal
rights that the search entails. Courts
must consider [1] the scope of the
particular intrusion, [2] the manner
in which it is conducted, [3] the
justification for initiating it, and [4] the
place in which it is conducted.
441 U.S. at 559.
The undersigned is lacking substantial information regarding
each of these factors. However, the information that is
available when viewed in the light most favorable to Plaintiff,
weighs in favor of allowing the claim to proceed.
1. The Scope of the Intrusion
When considering the scope of the intrusion, courts have
considered (1) the type of search, and (2) the person who
performs the search. Harris, 818 F.3d at 58.
With respect to the type of search, “a visual body cavity
search, such as the one conducted here is invasive: ‘A strip
search that involves a stranger peering without consent at
a naked individual, and in particular at the most private
portions of that person's body is a serious invasion of privacy.’
” Harris, 818 F.3d at 58-59 (quoting Florence v. Bd. of
Chosen Freeholders, 566 U.S. 318, 344-45 (2012)) (Breyer,
J., dissenting); see also Canedy v. Boardman, 16 F.3d 183, 185
(7th Cir. 1994) (“[O]ne of the clearest forms of degradation in
Western Society is to strip a person of his clothes. The right
to be free from strip searches and degrading body inspections
is thus basic to the concept of privacy.”; Cookish v. Powell,
945 F.2d 441, 446 (1st Cir. 1991) (“[A] ‘severe if not gross
interference with a person's privacy [ ] occurs when guards
conduct a vision inspection of body cavities.”)).
With respect to who performed the search, “it is generally
considered a greater invasion to have one's naked body
viewed by a member of the opposite sex.” Canedy, 16 F.3d
at 185. Here, Plaintiff (male) alleges that Defendant Pleat (a
male officer) conducted the visual inspection.
2. The Manner in Which the Search Was Conducted
“A strip search conducted in a professional manner is more
reasonable than one that is not.” Harris, 818 F.3d at 59-60
(citing Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985)
(emphasizing that “[t]he record indicates that the searches are
performed by the female guards in a professional manner and
with respect for the inmates”); Byrd, 629 F.3d at 1143 (“[W]e
have consistently recognized the ‘frightening and humiliating
invasion’ occasioned by a strip search, ‘even when conducted
with all due courtesy.’ ”)).
Here, it is unclear from the record, viewed in the light most
favorable to Plaintiff, why the visual body cavity search was
conducted or involved the use of verbally aggressive orders.
Plaintiff alleges that upon entering the room for the search,
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Defendant Pleat was “threatening and harassing” him and
threatened to spray Plaintiff. (Dkt. No. 34 at 10.)
3. The Justification for Initiating the Search
Defendants provide no justification for the strip search at this
juncture other than to suggest that it was a routine, random
strip search. (Dkt. No. 49, Attach. 2 at 24-25 [arguing that
“because ‘routine, random strip searches of inmates’ do not
violate the Fourth Amendment, the May 14, 2023 strip search
to which Plaintiff was subjected is not actionable and should
be dismissed as Plaintiff has not alleged a plausible cause of
action.”].) “[I]t is difficult, if not impossible, for courts to
determine the reasonableness of a visual body cavity search
without record evidence supporting the officer's justification
for initiating the search.” Harris, 818 F.3d at 61 (citing Byrd,
629 F.3d at 1149 (Smith, J., concurring in part, dissenting in
part) (“It is appropriate to begin the analysis by looking at the
justification for initiating the search, because, in the absence
of a proper justification, even the most unintrusive search is
unreasonable.”)).
*13 The Amended Complaint suggests that there was no
legitimate justification for the search. (Dkt. No. 34 at 10
[alleging that Plaintiff asked why he was being searched,
Defendant Aragona told him, “shut up your [sic] getting
stripped and if everything goes well your [sic] head back
to your unit,” and Plaintiff said “this cant [sic] be a Srg
shakedown because I just had one 3 days ago and Srg
shakedown is once a week.”].)
4. The Place in Which the Search Was Conducted
The Second Circuit has held that searches “conducted in the
presence of only those individuals needed to conduct the
search” are more reasonable than those “conducted in the
presence of unnecessary spectators.” Harris, 818 F.3d 62.
Based on the allegations contained in the Amended
Complaint, it appears that Defendants Pleat and Aragona were
the only individuals present for the visual body cavity search.
(Dkt. No. 34 at 10.)
Given the substantial information lacking regarding a
justification for the search—if any—and any additional facts
regarding the manner in which the search was conducted,
the undersigned finds that at this juncture, the factors weigh
slightly in favor of allowing the claim to proceed.
For each of these reasons, I recommend that Defendants’
motion to dismiss Plaintiff's Fourth Amendment unlawful
strip search claim against Defendants Aragona and Pleat be
denied.
G. Whether Plaintiff Sufficiently Alleged a Fourteenth
Amendment Conditions-of-Confinement Claim
Against Defendant Lawson Related to March 23, 2023
After carefully considering the matter, I answer this question
in the negative.
“Numerous courts, including those in the Second Circuit,
have found that excessive hot or cold conditions may be
unconstitutional.” Harlow v. St. Andrews, 18-CV-0648, 2020
WL 5834219, at *7 (N.D.N.Y. Oct. 1, 2020) (Kahn, J.)
(citing Wingate v. Robert N. Davoren Ctr., 12-CV-5521, 2013
WL 4856573, at *3 (S.D.N.Y. Sept. 10, 2013)). However,
district courts in this Circuit have also found “allegations of
exposure to extreme temperatures for short periods of time
are insufficient to state an Eighth or Fourteenth Amendment
claim.” Wingate, 2013 WL 4856573, at *3.
The Amended Complaint alleges that Plaintiff was placed
in a cell with “the window wide open freezing Plaintiff for
hours.” (Dkt. No. 34 at 8.) These conclusory allegations—
which fail to allege the temperature of the room, what (if any)
clothing or bedding Plaintiff had access to, or a more specific
length of time that Plaintiff was exposed to the cold—are
insufficient to plausibly suggest a conditions-of-confinement
claim. See Scott v. Lopez, 11-CV-0809, 2012 WL 75430, at *2
(S.D.N.Y. Jan. 5, 2012) (citing Gardner v. Mental Health Unit
of Sullivan Corr. Facility, 07-CV-5535, 2009 WL 1834382,
at *3 (S.D.N.Y. June 17, 2009) (no constitutional violation
where prisoner was “very cold” for no more than seven days);
Felmine v. City of New York, 09-CV-3768, 2011 WL 4543268,
at *22 (E.D.N.Y. Sept. 29, 2011) (no constitutional violation
where pre-trial detainee was kept in cold cell overnight for
6-7 hours)) (“several hours of confinement in a chilly room
is not a constitutional violation. [The plaintiff]’s temporary
deprivation was not sufficiently serious, and therefore does
not satisfy the objective component of the inquiry.”); Williams
v. Grant, CV408-203, 2009 WL 3317262, at *4 (S.D. Ga.
Oct. 14, 2009) (allegations that the plaintiff was subjected
to three hours of cold temperatures insufficient to state
a conditions of confinement claim); see also Abdullah v.
NYPD 30th Precinct, 2024 WL 325385, at *6 (S.D.N.Y. Jan.
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29, 2024) (collecting cases regarding exposure to cold and
concluding that the plaintiff's allegations that he was locked
up in a cold prison cell without a sweater or jacket causing
flu like symptoms were insufficient to plausibly suggest a
constitutional violation because he failed to allege how long
he was held in the cold cell or the severity of the temperature
of the cell).
*14 As a result, I recommend that Defendants’ motion
to dismiss Plaintiff's Fourteenth Amendment conditions-of-
confinement claim against Defendant Lawson related to the
suicide watch cell on March 23, 2023, be granted.
H. Whether Plaintiff Sufficiently Alleged a Fourteenth
Amendment Conditions-of-Confinement Claim
Against Defendants Lawson and Aragona Related to
May 20, 2023 7
After carefully considering the matter, I answer this question
in the affirmative.
“The temporary deprivation of the right to use the toilet,
in the absence of serious physical harm or a serious risk
of contamination, does not rise to the level of an objective
constitutional violation.” DeLaney v. Canfield, 19-CV-6729,
2020 WL 3893272, at *5 (S.D.N.Y. July 10, 2020) (collecting
cases denying Eighth Amendment claims asserting denial
of bathroom access for between seventy minutes and three
hours). However, denying someone detained by the State the
ability “to eat, drink, or use the bathroom for several hours”
may be sufficient to state a claim. Cano v. City of New York, 44
F. Supp. 3d 324, 334 (E.D.N.Y. 2014) (pretrial detainees who
were denied access to a restroom, among other deprivations,
for ten to twenty-four hours stated a Fourteenth Amendment
claim).
District courts in the Second Circuit appear to primarily be
concerned with (1) the length of the deprivation, and (2)
whether the plaintiff was exposed to unsanitary or dangerous
conditions as a result of the deprivation. Compare Urena
v. City of New York, 22-CV-4758, 2024 WL 3607662, at
*6 (S.D.N.Y. July 10, 2024) (concluding that the plaintiff's
allegation that he was confined to a bus overnight while
handcuffed fails to allege an unreasonable risk of serious
damage to his health where there is no allegation that there
were dangerous or unsanitary conditions on the bus), with
Colson v. Mingo, 18-CV-2765, 2024 WL 1018582, at *13
(S.D.N.Y. Mar. 8, 2024) (finding that the plaintiff adequately
alleged a conditions of confinement claim where the plaintiff
alleged that he was handcuffed on a bus for fifteen hours in
close proximity to shattered glass, his own human waste, and
vomit, feces, and urine of other passengers with no access to
a bathroom, water, or hygienic materials).
*15 Construing the Amended Complaint in the light most
favorable to Plaintiff, it alleges that he was deprived access
to the bathroom on May 20, 2023, from approximately 7 p.m.
until 2 a.m. on May 21, 2023. (Dkt. No. 34 at 11-12.) Plaintiff
alleges that at approximately 9:50 p.m. on May 20, 2023, he
informed Defendants Aragona and Lawson that he needed to
use the bathroom, but he continued to be denied access to
the bathroom for approximately four additional hours. (Dkt.
No. 34 at 12.) The Amended Complaint alleges that “after
6 hours of being in the restraint chair, Plaintiff urinated on
himself 3 times and was spitting blood.” (Id.) I find that these
allegations, which include exposure to unsanitary conditions,
plausibly suggest a conditions-of-confinement claim pursuant
to the Fourteenth Amendment. See Rashid v. Kurtulus, 23-
CV-0722, 2023 WL 5672589, at *6 (D. Conn. Sept. 1,
2023) (concluding that the plaintiff's allegations that he was
restrained from approximately 7 p.m. until 1 a.m. without
access to the bathroom causing him to soil himself, sufficient
to alleges a conditions-of-confinement claim).
As a result, I recommend that Defendants’ motion to dismiss
seeking dismissal of Plaintiff's conditions of confinement
claim against Defendants Aragona and Lawson related to the
incident on May 20, 2023, be denied. 8
I. Whether Plaintiff Sufficiently Alleged a Fourteenth
Amendment Excessive Force Claim Against
Defendants Stratta, Pleat, Bonnaci, Lacoozi, Lawson,
Spadinger, and Cohen Related to May 20, 2023
After carefully considering the matter, I answer this question
in the affirmative.
Although the documents attached to the Amended Complaint
illustrate a different scene on May 20, 2023, than the
Amended Complaint alleges, Plaintiff's allegations are
enough at this juncture for this claim to proceed. Iqbal, 129 S.
Ct. at 1949 (“a court must accept as true all of the allegations
contained in the complaint”). Defendants appear to argue that
an issue of fact exists with respect to the use of force incident,
and witness credibility is a function reserved for the jury. In
re Fosamax Products Liability Litigation, 707 F.3d 189, 194
n.4 (2d Cir. 2013).
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As a result, I recommend that Defendants’ motion to dismiss
Plaintiff's use of force claim against Defendants Stratta, Pleat,
Bonnaci, Lacoozi, Lawson, Spadinger, and Cohen be denied.
J. Whether Plaintiff Sufficiently Alleged a Fourteenth
Amendment Failure-to-Intervene Claim Against
Defendants Aragona and Grimmick Related to May
20, 2023
After carefully considering the matter, I answer this question
in the affirmative with respect to Defendant Grimmick and I
answer this question in the negative with respect to Defendant
Aragona.
Failure to intervene claims brought by pretrial detainees arise
under the Fourteenth Amendment's Due Process Clause and
must satisfy the following standards: (1) an objective showing
that the challenged conditions were sufficiently serious to
constitute a due process violation; and (2) a subjective
showing that the official either knowingly or recklessly failed
to act regarding an excessive risk to health or safety. Velez
v. City of New York, 17-CV-9871, 2019 WL 3495642, at *3
(S.D.N.Y. Aug. 1, 2019); see also McDaniel v. City of New
York, 19-CV-8735, 2022 WL 421122, at *8-10 (S.D.N.Y. Feb.
11, 2022). The subjective prong is met where an officer “has
adequate time to assess a serious threat against an inmate
and a fair opportunity to protect the inmate without risk to
himself, yet fails to intervene.” McDaniel, 2022 WL 421122,
at *10; see also Williams v. Salvucci, 20-CV-5098, 2022 WL
17586326, at *8 (S.D.N.Y. Dec. 12, 2022). Courts may ask
whether a defendant “observed or had reason to know the
plaintiff was involved in a physical altercation” and “had
an extended opportunity to stop the attack but failed to take
any action to do so.” Blake v. Sexton, 12-CV-7245, 2016
WL 1241525, at *4 (S.D.N.Y. Mar. 24, 2016) (alterations
and internal quotation marks omitted); McDaniel, 2022 WL
421122, at *10.
*16 The Amended Complaint alleges that Defendant
Grimmick was present in booking for the scan of Plaintiff,
during which a conversation ensued between Plaintiff and
Defendants Stratta and Grimmick. (Dkt. No. 34 at 11.) The
Amended Complaint alleges that Defendant Grimmick said
“Allah you draw a lot of heat to yourself, you need to try to
fallback because at the end of the day we always win.” (Id.)
Plaintiff alleges that after he was cleared from the scanner
machine, he was taken across the hall to the male booking
strip room where he was “jumped on ... immediately” by
Defendants Stratta, Pleat, and Bonnaci. (Id.) The Amended
Complaint alleges that after the incident in the male booking
strip room, he was escorted to medical. (Id.) Plaintiff alleges
that during the escort to medical, he saw Defendant Grimmick
and said “word that what we doing Broomstick. Yall gonna
jump me, yall gonna pay for this” and Defendant Grimmick
smiled and said “don't start a war you can't finish.” (Id.)
Although these allegations are sparse, as Plaintiff identifies in
his opposition memorandum of law, the comments made by
Defendant Grimmick immediately preceding and following
the incident in the male booking strip room, viewed in the
light most favorable to Plaintiff, plausibly suggest Defendant
Grimmick was aware that Defendants Stratta, Pleat, and
Bonnaci intended to “brutalize” Plaintiff. (Dkt. No. 57 at 10.)
Thus, it is reasonable to infer, at this juncture, that Defendant
Grimmick had reason to know that a physical altercation
involving Plaintiff was about to occur, had an opportunity to
stop it, and failed to do so. (Dkt. No. 57 at 14-15.)
However, the undersigned reaches a different conclusion with
respect to Defendant Aragona. The Amended Complaint does
not allege that Defendant Aragona was present on May 20,
2023, until approximately 8:10 p.m., after the conclusion of
the alleged use of force incident. (Dkt. No. 34 at 11-12.)
Thus, the Amended Complaint fails to allege facts plausibly
suggesting that Defendant Aragona had reason to know
Plaintiff was involved in a physical altercation and had a fair
opportunity to stop it.
As a result, I recommend that Defendants’ motion to
dismiss Plaintiff's failure to intervene claim against Defendant
Grimmick be denied, but that Defendants’ motion to dismiss
Plaintiff's failure to intervene claim against Defendant
Aragona be granted.
K. Whether Plaintiff Sufficiently Alleged a Fourteenth
Amendment Disciplinary Due Process Claim Against
Defendant Cavanaugh
After carefully considering the matter, I answer this question
in the affirmative.
Defendants’ sole contention with respect to this claim relates
to whether Plaintiff's placement in the SHU constituted an
“atypical, significant deprivation” which might “conceivably
create a liberty interest.” (Dkt. No. 49, Attach. 2 at 31-32.)
However, as set forth in Senior District Judge Kahn's
Memorandum-Decision and Order dated September 19,
2023, “[p]retrial detainees have a liberty interest in being
free from punishment prior to conviction under the Due
Process Clause.” Washington v. Falco, 20-CV-3009, 2021
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WL 797658, at *7 (S.D.N.Y. Mar. 1, 2021) (citing Bell v.
Wolfish, 441 U.S. 520, 535 (1979)). In situations in which
a restriction is placed on a pretrial detainee for disciplinary
reasons, “[p]rocedural due process requires that a pretrial
detainee be given written notice, adequate time to prepare a
defense, a written statement of the reasons for action taken,
and a limited ability to present witnesses and evidence ....”
Almighty Supreme Born Allah v. Milling, 876 F.3d 48, 55 n.3
(2d Cir. 2017) (internal quotation marks omitted).
The Amended Complaint alleges that on May 24, 2023,
Plaintiff was taken to a disciplinary hearing conducted by
Defendant Cavanaugh, and he was not provided due process
of law. (Dkt. No. 34 at 13.) The Amended Complaint alleges
that Plaintiff was later provided a copy of his disposition,
which imposed a sanction of Plaintiff fifteen day of SHU
confinement and twenty-one days of keeplock confinement.
(Dkt. No. 34 at 12; Dkt. No. 34, Attach. 1 at 13.) Senior
District Judge Kahn referred to Defendant Cavanaugh's
sanction as a “disciplinary determination.” (Dkt. No. 8 at
24.) This disciplinary determination that included disciplinary
restrictions required written notice, adequate time to prepare
a defense, a written statement of the reasons for action
taken, and a limited ability to present witnesses and evidence.
Thus, the undersigned rejects Defendants’ argument that the
sanctions imposed did not implicate a liberty interest and thus
no procedures were required.
*17 As a result, I recommend that Defendants’ motion to
dismiss Plaintiff's Fourteenth Amendment disciplinary due
process claim against Defendant Cavanaugh be denied.
L. Whether Plaintiff Sufficiently Alleged a Fourteenth
Amendment Equal Protection Claim Against
Defendant Lawson
After carefully considering the matter, I answer this question
in the affirmative with respect to the physical altercation on
May 20, 2023, and I answer this question in the negative with
respect to the placement in suicide watch cell.
As set forth by Senior District Judge Kahn, “Courts in this
circuit and elsewhere have held that officers’ use of racial
epithets may be regarded as direct evidence of racial animus
and, when combined with physical abuse or other unlawful
actions, may establish an equal protection violation.” Ali v.
Connick, 136 F. Supp. 3d 270, 280 (E.D.N.Y. 2015); see also
Cole v. Fischer, 379 F. App'x 40, 43 (2d Cir. 2010) (“When the
verbal harassment and simultaneous physical abuse alleged in
the amended complaint are considered together, we have little
trouble concluding that plaintiff's allegations were sufficient
to state a § 1983 claim for discrimination on the basis of race
and religion.”).
As set forth by Defendants, Plaintiff failed to allege any
physical injury related to his placement in the suicide watch
cell. Instead, Plaintiff alleged that he was “freezing” and cold.
(Dkt. No. 8.) However, with respect to the incident on May
20, 2023, Plaintiff alleged that he sustained a chipped tooth
and bruising on the right side of his eye. (Dkt. No. 34 at 12;
Dkt. No. 34, Attach. 1 at 12; Dkt. No. 57 at 13.)
As a result, I recommend that Defendants’ motion to dismiss
Plaintiff's Fourteenth Amendment equal protection claim
against Defendant Lawson be granted with respect to the
suicide watch cell placement and denied with respect to the
alleged assault on May 20, 2023.
ACCORDINGLY, it is
RECOMMENDED that Defendants’ motion to dismiss
(Dkt. No. 49) be GRANTED in part and Plaintiff's Amended
Complaint (Dkt. No. 34) be DISMISSED, pursuant to Fed.
R. Civ. P. 12 to the extent that it asserts the following claims:
(1) Plaintiff's First Amendment retaliation claim against
Defendants Aragona and Pleat based on these officials
destroying (or directing others to destroy) Plaintiff's
personal property following his stated intent to file a
grievance against them on May 14, 2023;
(2) Plaintiff's Fourteenth Amendment conditions-of-
confinement claim against Defendant Lawson based on
his exposing Plaintiff to cold temperatures in the suicide
watch cell for hours on March 23, 2023;
(3) Plaintiff's Fourteenth Amendment failure-to-intervene
claims against Defendant Aragona based on the alleged
use of force incident that occurred on May 20, 2023; and
(4) Plaintiff's Fourteenth Amendment equal protection
claim against Defendant Lawson based on his placement
of Plaintiff in the suicide watch cell on March 23, 2023;
and it is further respectfully
RECOMMENDED that Defendants’ motion to dismiss
(Dkt. No. 49) be DENIED in part and the following
claims from Plaintiff's Amended Complaint (Dkt. No. 34)
SURVIVE:
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(1) Plaintiff's First Amendment retaliation claim against
Defendant Torrisi based on the search of Plaintiff's cell
and issuance of a false misbehavior report against him
on February 26, 2023, in response to a lawsuit Plaintiff
filed regarding a “slip and fall accident” that occurred
two days earlier;
*18 (2) Plaintiff's First Amendment retaliation claim
against Defendants Molesky, Lawson, and Spadinger
based on these officials searching Plaintiff's cell and
issuing him a false misbehavior report on March 18,
2023, in response to Plaintiffs submission of a grievance
on February 28, 2023;
(3) Plaintiff's First Amendment retaliation claim against
Defendant Lawson based on this official placing Plaintiff
on suicide watch on March 23, 2023, in response to
Plaintiff's submission of a grievance regarding the cell
search on March 18, 2023;
(4) Plaintiffs First Amendment retaliation claim against
Defendants Stratta and Pleat based on these officials
initiating a use-of-force incident on May 20, 2023, in
response to Plaintiff's earlier engagement in protected
activity;
(5) Plaintiff's Fourth Amendment unlawful strip frisk claim
against Defendants Aragona and Pleat based on the strip
search that occurred on May 14, 2023;
(6) Plaintiff's Fourteenth Amendment conditions-of-
confinement claims against Defendants Aragona and
Lawson based on their denial of Plaintiff's access to the
bathroom on May 20, 2023;
(7) Plaintiff's Fourteenth Amendment excessive force
claims against Defendants Stratta, Pleat, Bonnaci,
Lacoozi, Lawson, Spadinger, and Cohen based on the
alleged use of force incident that occurred on May 20,
2023;
(8) Plaintiff's Fourteenth Amendment failure-to-intervene
claims against Defendant Grimmick based on the alleged
use of force incident that occurred on May 20, 2023;
(9) Plaintiff's Fourteenth Amendment disciplinary due
process claim against Defendant Cavanaugh based on
Defendant Cavanaugh's disciplinary sanction imposed
against Plaintiff on May 24, 2023; and
(10) Plaintiff's Fourteenth Amendment equal protection
claim against Defendant Lawson based on his use
of racial slurs in connection with subjecting him to
excessive force;
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. 9
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. 10 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
Slip Copy, 2025 WL 1033836
Footnotes
1 Plaintiff is cautioned that ordinarily, the filing of an amended pleading supersedes any previously filed pleading
in its entirety. However, given Plaintiff's pro se status, the undersigned construed the operative pleading as
Dkt. No. 34 with the addition of damages set forth in Dkt. No. 48.
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2 “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule
12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123,
126 (2d Cir. 2001) (collecting cases).
3 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768,
1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.
1995) (McAvoy, C.J.).
4 While the Court shares Defendants’ desire to dispose early of any causes of action that fail to state a claim
upon which relief may be granted, defense counsel is cautioned to only include conceivably meritorious
arguments in the future; some of defense counsel's arguments were borderline frivolous.
5 This argument also appears to be a veiled attempt to assert that Plaintiff failed to exhaust his administrative
remedies before commencing the action, which is not ripe for a motion to dismiss and instead, must be made
on a motion for summary judgment.
6 Moreover, manual body cavity searches tend to be more intrusive than visual body cavity searches.
7 Plaintiff, as a pretrial detainee, asserts a conditions-of-confinement claim pursuant to the Fourteenth
Amendment. The analysis contained in Part III.G. of this Report and Recommendation contains citations
to cases that consider conditions of confinement under both the Eighth and Fourteenth Amendments. “A
detainee's Fourteenth Amendment due process rights concerning the conditions of his confinement are “at
least as great as the Eighth Amendment protections available to a convicted prisoner.” Bourdon v. Roney,
99-CV-0769, 2003 WL 21058177, at *10 (N.D.N.Y. Mar. 6, 2003) (Sharpe, M.J.) (citing City of Revere v.
Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (citations omitted)). Hence, a case concluding
that a complaint asserted facts plausibly suggesting a conditions-of-confinement claim pursuant to the Eighth
Amendment also logically holds that the complaint asserted facts plausibly suggesting a conditions-of-
confinement claim pursuant to the Fourteenth Amendment (however, the inverse of this statement is not true).
8 Defendants again appear to include a veiled argument that Plaintiff failed to exhaust his administrative
remedies before commencing the action, which is not ripe for a motion to dismiss and instead, must be made
on a motion for summary judgment. See, supra, note 5.
9 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).
10 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 © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 109 of 520

Allah v. Lawson, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 814990
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jaiquan ALLAH, Plaintiff,
v.
Ryan LAWSON, et al., Defendants.
9:23-CV-785 (LEK/ML)
|
Signed March 14, 2025
Attorneys and Law Firms
Jaiquan Allah, Malone, NY, Pro Se.
Kevin McDonald Cannizzaro, Albany County Attorney's
Office, Albany, NY, for Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 After bringing this pro se action pursuant to 42
U.S.C. § 1983 against staff members at the Albany County
Correctional Facility, Plaintiff Jaiquan Allah filed an amended
complaint asserting violations of his constitutional rights.
Dkt. No. 34 (“Amended Complaint”). Defendants filed a
combined motion to dismiss and motion for judgment on the
pleadings, arguing for dismissal of Plaintiff's claims. Dkt.
No. 49 (“Motion”). On February 18, 2025, the Honorable
Miroslav Lovric, United States Magistrate Judge, issued a
report and recommendation pursuant to 28 U.S.C. § 636(b)
and Local Rule 72.3(d), recommending that the Motion be
granted in part and denied in part. Dkt. No. 66 (“Report and
Recommendation”).
No party has filed objections to the Report and
Recommendation. For the reasons that follow, the Court
adopts the Report and Recommendation in its entirety.
II. BACKGROUND
The Court assumes familiarity with the background detailed
in the Report and Recommendation. See generally R. & R.
Judge Lovric assessed Plaintiff's claims in turn. First, he
recommended denying the Motion with respect to Plaintiff's
First Amendment retaliation claim against Defendant Torrisi.
Id. at 14. Judge Lovric noted that “it is undisputed that
Plaintiff engaged in constitutionally protected speech by the
filing of a grievance and/or lawsuit.” Id. at 15. Further, he
found merit to Plaintiff's argument that a false misbehavior
report allegedly issued in retaliation for exercising a
constitutionally protected right is an adverse action. Id. at
16. Judge Lovric also found that Plaintiff adequately alleged
a causal connection between his protected speech and the
adverse action, because the adverse action “followed closely
in time to Plaintiff's protected speech” and Defendant Torrisi
allegedly told Plaintiff, “you wanna play games, I can play
too.” Id. at 17.
Second, Judge Lovric recommended denying the Motion
with respect to Plaintiff's First Amendment retaliation claim
against Defendants Molesky, Lawson, and Spadinger. Id. at
18. Judge Lovric explained that Plaintiff engaged in protected
speech by filing a grievance, id., that a false misbehavior
report allegedly issued in retaliation for exercising a
constitutionally protected right is an adverse action, id.,
and “the temporal proximity between Plaintiff's protected
speech ... and the [adverse action] is enough to plausibly
suggest a causal connection.” Id. at 19. Judge Lovric found the
causation element further supported by Defendant Molesky
allegedly telling Plaintiff not to “start a war you can't finish.”
Id.
Third, Judge Lovric recommended denying the Motion
with respect to Plaintiff's First Amendment retaliation claim
against Defendant Lawson based on Plaintiff's placement in
the suicide watch cell. Id. Judge Lovric noted that Plaintiff
filed a grievance and was “placed in the suicide watch cell
[in the SHU] by Defendant Lawson two days after.” Id. at
20. “[T]he temporal proximity between Plaintiff's protected
speech and the alleged adverse action are enough at this
procedural posture to sufficiently infer a causal connection.”
Id. Judge Lovric noted that the causal connection is further
supported by Plaintiff's allegation that “after placing Plaintiff
in the suicide watch cell, Defendant Lawson said ‘you're in
my custody now, black monkey. You play by my rules. If
you write another grievance, I'll make sure you'll stay here
forever.’ ” Id. (cleaned up).
*2 Fourth, Judge Lovric recommended granting the Motion
with respect to Plaintiff's First Amendment retaliation claim
against Defendants Aragona and Pleat based on property
destruction. Id. at 21. Judge Lovric explains that “Plaintiff
fails to allege the personal involvement of Defendants
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Aragona and Pleat in the alleged destruction of his property.”
Id.
Fifth, Judge Lovric recommended denying the Motion with
respect to Plaintiff's First Amendment retaliation claim
against Defendants Stratta and Pleat based on their use of
force on May 20, 2023. Id. Plaintiff engaged in protected
speech by filing grievances and a notice of claim, id. at 21–
22, and he suffered an adverse action in the use of force
by Defendants Stratta and Pleat. A causal connection was
established because during the alleged incident, Defendant
Stratta allegedly stated, “we seen the little grievance you
wrote and your notice of claim.” Id. at 22.
Sixth, Judge Lovric recommended denying the Motion
with respect to Plaintiff's Fourth Amendment unlawful strip
search claim. Id. Applying the test laid out in Harris v.
Miller, 818 F.3d 49, 57 (2d Cir. 2016), Judge Lovric first
found that Plaintiff had an “actual, subjective expectation
of bodily privacy.” Id. at 25. Then, Judge Lovric explained
that the prison officials plausibly did not have sufficient
justification to intrude on Plaintiff's Fourth Amendment
rights, considering the scope of the intrusion, the manner in
which the search was conducted, the justification for initiating
the search, and the place in which the search was conducted.
Id. at 26–28.
Seventh, Judge Lovric recommended granting the Motion
with respect to Plaintiff's Fourteenth Amendment conditions-
of-confinement claim against Defendant Lawson relating
to the events of March 23, 2023. Id. at 28. Judge Lovric
found Plaintiff's allegation that he was placed in a cell with
the window “wide open,” “freezing [ ] for hours,” was
conclusory, as it “fail[ed] to allege the temperature of the
room, what (if any) clothing or bedding Plaintiff had access
to, or a more specific length of time that Plaintiff was exposed
to the cold.” Id. at 29. Such “conclusory allegations ... are
insufficient to plausibly suggest a conditions-of-confinement
claim.” Id.
Eighth, Judge Lovric recommended denying the Motion with
respect to Plaintiff's Fourteenth Amendment conditions-of-
confinement claim against Defendants Lawson and Aragona
relating to the events of May 20, 2023. Id. at 30. Judge
Lovric found that Plaintiff sufficiently stated a claim for relief
by asserting he was deprived of access to a bathroom for
several hours, which resulted in Plaintiff urinating on himself
several times, “spitting blood,” and exposure to unsanitary
conditions. Id. at 31.
Ninth, Judge Lovric recommended denying the Motion with
respect to Plaintiff's Fourteenth Amendment excessive force
claim against Defendants Stratta, Pleat, Bonnaci, Lacoosi,
Lawson, Spadinger, and Cohen relating to the events of May
20, 2023. Id. at 32. Plaintiff alleges that the Defendants
“jumped on” him, and “physically assaulted [him] by kicking
and punching him.” Am. Compl. at 11. Judge Lovric found
that “Plaintiff's allegations are enough at this juncture for this
claim to proceed.” R. & R. at 32.
Tenth, Judge Lovric recommended denying the Motion
with respect to Plaintiff's Fourteenth Amendment failure-to-
intervene claim against Defendant Grimmick, but granting
the Motion with respect to Plaintiff's Fourteenth Amendment
failure-to-intervene claim against Defendant Aragona. Id. at
32. Judge Lovric noted that before Plaintiff was allegedly
attacked in the male booking strip room, Defendant Grimmick
allegedly told Plaintiff that he “draw[s] a lot of heat to
[him]self,” and that he “need[s] to try to fallback because at
the end of the day we always win.” Id. at 33. After he was
allegedly attacked, Defendant Grimmick told Plaintiff not to
“start a war you can't finish.” Id. at 34. According to Judge
Lovric, “[T]he comments made by Defendant Grimmick
immediately preceding and following the incident in the male
booking strip room ... plausibly suggest Defendant Grimmick
was aware that Defendants Stratta, Pleat, and Bonnaci
intended to ‘brutalize’ Plaintiff,” rendering it “reasonable to
infer, at this juncture, that Defendant Grimmick had reason to
know that a physical altercation involving Plaintiff was about
to occur, had an opportunity to stop it, and failed to do so.” Id.
*3 As for Defendant Aragona, Judge Lovric observed
that Plaintiff's Amended Complaint “does not allege that
Defendant Aragona was present” until “after the conclusion
of the alleged force incident.” Id. Therefore, Judge
Lovric concluded that there were no allegations “plausibly
suggesting that Defendant Aragona had reason to know
Plaintiff was involved in a physical altercation and had a fair
opportunity to stop it.” Id.
Eleventh, Judge Lovric recommended denying the Motion
with respect to Plaintiff's Fourteenth Amendment disciplinary
due process claim against Defendant Cavanaugh. Id. Judge
Lovric first explained that Plaintiff's placement in the SHU
constituted an atypical, significant deprivation which might
implicate a liberty interest. Id. at 35. He then found that
Plaintiff was not provided due process of law during the
disciplinary hearing that led to his SHU placement, as
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Allah v. Lawson, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
“[t]his disciplinary determination ... required written notice,
adequate time to prepare a defense, a written statement of
the reasons for action taken, and a limited ability to present
witnesses and evidence.” Id.
Twelfth, Judge Lovric recommended denying the Motion
with respect to Plaintiff's Fourteenth Amendment equal
protection claim against Defendant Lawson relating to the
events of May 20, 2023, and granting the Motion with
respect to Plaintiff's Fourteenth Amendment equal protection
claim against Defendant Lawson relating to his placement
in the suicide watch cell. Id. at 36. Judge Lovric concluded
that Defendant Lawson's alleged use of racial epithets and
verbal harassment, combined with Plaintiff's allegation that
he “sustained a chipped tooth and bruising on the right side
of his eye,” was sufficient to state a claim in regard to the
events of May 20, 2023. Id. However, Judge Lovric found
that “Plaintiff failed to allege any physical injury related to his
placement in the suicide watch cell,” so any equal protection
claim with respect to this event fails. Id.
In sum, Judge Lovric recommended that the Motion be
granted in part and denied in part. Id. at 37–39.
III. LEGAL STANDARD
“Within fourteen days after being served with a copy [of
the Magistrate Judge's report and recommendation], any
party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court.”
28 U.S.C. § 636(b)(1)(C); see also L.R. 72.1. However, if
no objections are made, a district court need only review a
report and recommendation for clear error. See DiPilato v.
7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009)
(“The district court may adopt those portions of a report and
recommendation to which no timely objections have been
made, provided no clear error is apparent from the face of
the record.”). Clear error “is present when upon review of
the entire record, the court is left with the definite and firm
conviction that a mistake has been committed.” Rivera v. Fed.
Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y. 2019)
(cleaned up). Upon review, a court “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)(1)(C).
IV. DISCUSSION
No party objected to the Report and Recommendation
within fourteen days after being served with a copy
of it. Accordingly, the Court reviews the Report and
Recommendation for clear error. See DiPilato, 662 F. Supp.
2d at 339. Having found none, the Court approves and adopts
the Report and Recommendation in its entirety.
V. CONCLUSION
*4 Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No.
66, is APPROVED and ADOPTED in its entirety; and it
is further
ORDERED, that the combined motion to dismiss and motion
for judgment on the pleadings, Dkt. No. 49, is GRANTED in
part and DENIED in part; and it is further
ORDERED, that the following claims are DISMISSED:
(1) Plaintiff's First Amendment retaliation claim against
Defendants Aragona and Pleat based on property destruction;
(2) Plaintiff's Fourteenth Amendment conditions-of-
confinement claim against Defendant Lawson relating to
the events of March 23, 2023; (3) Plaintiff's Fourteenth
Amendment failure-to-intervene claim against Defendant
Aragona; and (4) Plaintiff's Fourteenth Amendment equal
protection claim against Defendant Lawson relating to
Plaintiff's placement in the suicide watch cell.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 814990
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 112 of 520

Allen v. Tenev, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 3848871
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Kent A. ALLEN, Plaintiff,
v.
Valdimer TENEV (Robinhood); Baiju Bhatt
(Robinhood); Radric Davis (Gucci Mane), Defendants.
1:21-CV-4119 (LTS)
|
Signed 08/26/2021
Attorneys and Law Firms
Kent A. Allen, Kissimmee, FL, Pro Se.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff, who is appearing pro se, asserts claims for
the alleged appropriation of his idea for Robinhood, an
internet website that provides stock-trading services. He also
alleges appropriation of his ideas for the domain names for
other internet websites, including Google, Visio, Instagram,
Postmates, “Kangeroo,” and Amazon. He sues: (1) Vladimir
Tenev, a co-founder and co-Chief Executive Officer of
Robinhood; (2) Baiju Bhatt, another co-founder and co-Chief
Executive Officer of Robinhood; and (3) Radric Davis, a
recording artist who is also known as “Gucci Mane.” Plaintiff
invokes the diversity of citizenship statute, 28 U.S.C. § 1332,
as the basis for this Court's jurisdiction. By order dated August
19, 2021, the Court granted Plaintiff's request to proceed
without prepayment of fees, that is, in forma pauperis (“IFP”).
For the reasons set forth below, the Court dismisses this
action.
BACKGROUND
Plaintiff alleges the following: When Plaintiff was 10 years
old and living in rural Georgia, he played with his friend,
Defendant Radric Davis, who would become the recording
artist also known as “Gucci Mane.” During that time, one
of Plaintiff's favorite “cartoon shows to watch was Robin
Hood.” (ECF 2, at 6.) One day, while he was playing with
Davis, Plaintiff “thought about how Robin Hood the cartoon
show should also be used for stock trading. At first, [Davis]
was puzzled at the idea. [Plaintiff] explained to him that the
name ma[de] [Plaintiff] think of stock trading.” (Id.)
Plaintiff's “myth was that the theme of the [Robin Hood]
show means that a person steal[s] from the rich and give[s]
to the poor. In stock trading, you see this as poor traders
look to become enriched. Additionally, stock trading is a
zero sum game.” (Id.) Plaintiff assured Davis, who was still
puzzled, that his idea would work and asked Davis to trust
him. Plaintiff told Davis that “once [they] introduce this to the
cartoon creators of Robin Hood they will love it.” (Id.) Davis
agreed. “Years later, [Davis] became a famed entertainment
artist and put out the idea [to] the public....” (Id.) As a child,
Plaintiff also developed the ideas for internet domain names
including Google, Visio, Instagram, Postmates, “Kangeroo,”
and Amazon.
Plaintiff “look[s] to be compensated and ... given credit for
[his] ideas.” (Id. at 12.) He is “[a]lso just looking to have [his]
personal life back....” (Id.) “Due to the welfare of Robinhood
employees,” Plaintiff feels that “the remedy of $57 million
would be fair.” (Id. at 13.)
DISCUSSION
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). 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.”
Id. (internal quotation marks and citation omitted). Moreover,
a court has “no obligation to entertain pure speculation and
conjecture.” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir.
2011) (finding as frivolous and baseless allegations that set
forth a fantastical alternative history of the September 11,
2001 terrorist attacks).
*2 Plaintiff should be familiar with these standards, which
the Court has applied in dismissing multiple other actions that
he has filed. Based on Plaintiff's history of filing vexatious
litigation, by order dated June 28, 2021, the Court barred
Plaintiff from filing future civil actions in this court IFP
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Allen v. Tenev, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
without first obtaining leave to file. Allen v. Almanzar, ECF
1:21-CV-3838, 5 (S.D.N.Y. June 28, 2021).
Because Plaintiff filed this action before the Court issued
the filing restriction, this action is not subject to it. But this
action is not a departure from Plaintiff's pattern of vexatious
litigation.
The Court finds that Plaintiff's factual allegations – that as
a young child, Plaintiff developed Robinhood and numerous
internet domain names, including Google, Visio, Instagram,
Postmates, “Kangeroo,” and Amazon, and that Defendant
Radric Davis revealed Plaintiff's idea for Robinhood to the
public – present no basis for a legally viable claim and are
factually baseless. 1
As the Supreme Court of the United States has held, where,
as here, “the facts alleged are ‘clearly baseless,’ a category
encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and
‘delusional,’ ” a court may dismiss a claim as “factually
frivolous.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)
(internal citations omitted). “As those words suggest, a
finding of factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly
incredible....” Id. at 33. Even if Plaintiff's assertions could
be construed as claims of cybersquatting, 2 Plaintiff clearly
does not have protectible interests in the ideas for the
internet websites and domain names listed in the present
complaint. See Neitzke v. Williams, 490 U.S. 319, 327-28
(1989) (“Examples of [claims based on an indisputably
meritless legal theory include] ... claims of infringement of
a legal interest which clearly does not exist.... Examples of
[claims whose factual contentions are clearly baseless] are
claims describing fantastic or delusional scenarios, claims
with which federal district judges are all too familiar.”). For
these reasons, the Court dismisses this action as frivolous. See
28 U.S.C. § 1915(e)(2)(B)(i).
*3 In deference to Plaintiff's pro se status, the Court would
normally permit Plaintiff to amend his complaint. But the
Court finds that the complaint cannot be cured with an
amendment. Where an amendment would be futile, leave to
amend is not required. Hill v. Curcione, 657 F.3d 116, 123-24
(2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (court may dismiss a complaint sua sponte and without
providing leave to amend “where the substance of the claim
pleaded is frivolous on its face”). The Court therefore declines
to grant Plaintiff leave to amend.
The Court reminds Plaintiff that the filing restriction remains
in effect with respect to any future civil actions he files in this
court IFP.
CONCLUSION
The Court dismisses this action as frivolous. 28 U.S.C. §
1915(e)(2)(B)(i).
Plaintiff has consented to receive electronic service of notices
and documents in this action. (ECF 3.)
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., 2021 WL 3848871
Footnotes
1 In other actions Plaintiff filed in this court, Plaintiff alleged that he developed well-known internet websites
and domain names, including most of those mentioned in the present complaint. Allen v. Patton, 1:21-
CV-3468, 6 (S.D.N.Y. Aug. 11, 2021) (dismissing for failure to state a claim and as frivolous Plaintiff's claims
of appropriation of his ideas for Google and Instagram, and his development of the domain names for
Google, Visio, Postmates, Kangaroo, and Amazon); Allen v. Patton, ECF 1:21-CV-3457, 7 (S.D.N.Y. June
3, 2021) (same, not including Visio); Allen v. Patton, 1:21-CV-3459, 7 (S.D.N.Y. June 3, 2021) (same, not
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Allen v. Tenev, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
including Visio); Allen v. Patton, 1:21-CV-4123, 5 (S.D.N.Y. June 1, 2021) (same, not including Visio); Allen
v. Cole, 1:21-CV-3450, 6 (S.D.N.Y. May 7, 2021) (dismissing for failure to state a claim Plaintiff's claims of
appropriation of his ideas for Google and Instagram); Allen v. Patton, 1:21-CV-3434, 6 (S.D.N.Y. Apr. 30,
2021) (same).
2 “[C]ybersquatting is the Internet version of a land grab. Cybersquatters register well-known brand names
as Internet domain names in order to force the rightful owners of the marks to pay for the right to engage
in electronic commerce under their own name.” Gioconda Law Grp. PLLC v. Kenzie, 941 F. Supp. 2d 424,
431 (S.D.N.Y. Apr. 23, 2013) (internal quotation marks and citation omitted). “A claim of cybersquatting is
governed by 15 U.S.C. § 1125(d)(1)(A), which imposes liability on any person who registers, traffics in, or
uses a domain name that ... is identical or confusingly similar to a trademark.” Salvatore Ferragamo S.p.A.
v. Does 1-56, No. 18-CV-12069, 2020 WL 774237, at *3 (S.D.N.Y. Feb. 18, 2020) (internal quotation marks
omitted).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 115 of 520

Altieri v. Tsopanides, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 1912851
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Robert ALTIERI, Plaintiff,
v.
Timothy TSOPANIDES, Defendant.
No. 3:21-cv-01224 (MPS)
|
Signed 06/03/2022
Attorneys and Law Firms
John R. Williams, New Haven, CT, for Plaintiff.
Josephine S. Miller, Danbury, CT, for Defendant.
RULING ON MOTION TO DISMISS
Michael P. Shea, United States District Judge
*1 This case arises from a property dispute between
Plaintiff Robert Altieri and Defendant Timothy Tsopanides.
Altieri filed suit against Tsopanides and “Officer Valdavinos
(#129),” a police officer at the Orange Police Department
(“OPD”), claiming that they acted in concert to deprive
Altieri of his property without due process of law in violation
of 42 U.S.C. § 1983. Altieri voluntarily dismissed his
claims against Valdavinos, ECF Nos. 31, 32, and thus, the
only remaining claims in this case are against Tsopanides.
Tsopanides now moves to dismiss the Section 1983 claim
under Fed. R. Civ. P. 12(b)(6). For the reasons set forth below,
I grant the motion to dismiss the Section 1983 claim and
dismiss without prejudice any state law claims.
I. FACTUAL BACKGROUND
The following facts are taken from Altieri's complaint, ECF
No. 1, and are accepted as true for the purposes of this ruling.
Tsopanides is a resident of Orange, Connecticut and owns
real estate located at 628 Grassy Hill Road in Orange,
Connecticut. ECF No. 1 ¶¶ 4, 7. “Long ago,” Tsopanides
borrowed $60,000 without interest from Altieri. Id. ¶ 7. In
exchange for the loan, Tsopanides allowed Altieri “to place
a non-motorized residence on Tsopanides's property as a
residence for himself until such time as the loan was fully
repaid.” Id. As of the filing of the complaint, Tsopanides had
repaid $38,000 of the loan. Id.
On September 8, 2021, Tsopanides visited Altieri at his non-
motorized residence and “demanded that [he] immediately
vacate the premises.” Id. ¶ 8. Altieri explained that he had a
right to live on Tsopanides's property until Tsopanides repaid
the loan. Id. Tsopanides then “became enraged,” damaged
“some of [Altieri's] personal property,” and left. Id. Altieri
filed a complaint with the OPD but the OPD took no action.
Id.
On September 10, 2021, four OPD officers, including
Valdavinos, “pounded” on Altieri's door and “accused [him]
of trespassing.” Id. ¶ 9. Altieri “explained ... that he has a legal
right to remain [on] the property in his residence unless and
until some court rules otherwise.” Id. The four officers did not
make an arrest, as, Altieri alleges, “they could have done if –
but only if – they knew that [he] in fact was trespassing.” Id.
Instead, the officers “proceeded to inflict substantial damage
upon [Altieri's] property” by disconnecting his electricity and
water. Id. The officers inflicted damage that rendered Altieri's
home “uninhabitable” and forced him to live at a motel. Id.
Altieri alleges that “the police officers acted jointly and in
concert with ... Tsopanides and for the specific purpose of
violently evicting [Altieri] from his home.” Id. ¶ 10. Further,
Altieri alleges that Tsopanides “was working closely and in
conspiracy with the police ... for the specific purpose,” id. ¶
5, of depriving Altieri of his property without due process, id.
¶ 6.
II. PROCEDURAL HISTORY
On September 14, 2021, Altieri filed this lawsuit against
Valdavinos and Tsopanides. ECF No. 1. On October 9, 2021,
Tsopanides filed a motion to dismiss. ECF No. 14. On March
5, 2022, Altieri filed a motion to dismiss his claims against
Valdavinos pursuant to Fed. R. Civ. P. 41(a)(2), ECF No.
31, which I granted, ECF No. 32. Tsopanides is the only
remaining defendant.
III. LEGAL STANDARD
*2 “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim for 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 claim has facial plausibility
when the plaintiff pleads factual content that allows the
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Altieri v. Tsopanides, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ray v. Watnick, 688 F.
App'x 41, 41 (2d Cir. 2017) (quoting Ashcroft, 556 U.S. at
678 (citations and internal quotation marks omitted)). The
Court must accept the well-pleaded factual allegations of the
complaint as true and draw all reasonable inferences in the
plaintiff's favor. See Warren v. Colvin, 744 F.3d 841, 843 (2d
Cir. 2014). The Court must then determine whether those
allegations “plausibly give rise to an entitlement to relief.”
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010).
IV. DISCUSSION
Tsopanides seeks dismissal of Altieri's Section 1983 claim,
arguing that Altieri has not alleged that Tsopanides acted
jointly or in concert with the police officers. ECF No. 14
at 3. To state a Section 1983 claim against a private party,
such as Tsopanides, Altieri must allege facts showing that
Tsopanides acted under the color of state law. “Under 42
U.S.C. § 1983, constitutional torts are only actionable against
state actors or private parties acting ‘under the color of’ state
law.” Betts v. Shearman, 751 F.3d 78, 84 (2d Cir. 2014)
(quoting Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323
(2d Cir. 2002)); see Sybalski v. Indep. Grp. Home Living
Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (“[A] plaintiff
pressing a claim of violation of his constitutional rights under
§ 1983 is ... required to show state action.” (internal quotation
marks and citation omitted)). “Private parties act under the
color of state law if they jointly participate or conspire with
a state actor to violate an individual's federal rights.” Fisk v.
Letterman, 401 F. Supp. 2d 362, 376 (S.D.N.Y. 2005).
To state a claim for a Section 1983 conspiracy involving
a private party, “a plaintiff must allege ‘(1) an agreement
between a state actor and a private party; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.’ ”
Knopf v. Esposito, 803 F. App'x 448, 452–53 (2d Cir. 2020)
(quoting Ciambriello, 292 F.3d at 324–25). A private actor
also acts under the color of state law “when the private
actor is a willful participant in joint activity with the State
or its agents.” Betts, 751 F.3d at 84 (internal quotation
marks and citation omitted). A complaint that contains “only
conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of
his constitutional rights [is] properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by
specific instances of misconduct.” Ciambriello, 292 F.3d at
325 (internal quotation marks omitted); see also Jackson v.
Nassau Cnty., 552 F. Supp. 3d 350, 381–82 (E.D.N.Y. 2021)
(“[T]he complaint must allege facts that plausibly suggest a
meeting of the minds, such that defendants entered into an
agreement, express or tacit, to achieve the unlawful end.”).
And while “conspiracies are by their very nature secretive
operations, and may have to be proven by circumstantial,
rather than direct, evidence,” Pangburn v. Culbertson, 200
F.3d 65, 72 (2d Cir. 1999) (internal quotation marks and
citation omitted), the plaintiff is still required to allege facts
beyond “conclusory, vague, or general allegations” to state a
claim “that the defendants have engaged in a conspiracy to
deprive the plaintiff of his constitutional rights,” Ciambriello,
292 F.3d at 325.
*3 Here, Altieri fails to allege any facts demonstrating that
Tsopanides acted in concert or conspired with the police
officers. He makes only a conclusory allegation that “the
police officers acted jointly and in concert with the defendant
Tsopanides and for the specific purpose of violently evicting
the plaintiff from his home.” ECF No. 1 ¶ 10; see also
id. ¶ 6 (“At all times mentioned in this Complaint, the
defendants acted jointly and in concert with each other for
the express purpose of achieving the unlawful objective of
the conspiracy, that is, to deprive the plaintiff of his property
without due process of law.”). Conclusory allegations that a
private actor and a state actor acted in concert, however, are
insufficient to state a Section 1983 claim against a private
actor. See Ciambriello, 292 F.3d at 324 (“A merely conclusory
allegation that a private entity acted in concert with a state
actor does not suffice to state a § 1983 claim against the
private entity.”).
Altieri argues that a conspiracy may be inferred
circumstantially from the factual allegations in the Complaint.
Specifically, he argues that “a finder of fact” may infer that
“the police acted in conjunction with Tsopanides” to evict him
based on the “close proximity in time between” Tsopanides's
September 8 visit to his residence, Altieri's complaint to the
OPD upon which the police took no action, and the police
officers’ September 10 visit to Altieri's residence. ECF No.
15 at 3–4. When drawing all reasonable inferences in favor
of Altieri, I find that there are no factual allegations from
which I may infer that Tsopanides acted jointly or conspired
with the police officers. At most, I can infer from the factual
allegations that the OPD received Altieri's complaint, that
Tsopanides also complained to OPD, and that the police
officers credited and acted on Tsopanides's complaint rather
than Altieri's complaint. But these inferences, even when
taken together, do not establish that Tsopanides was acting
under the color of state law. A private party's calling or
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summoning police officers does not constitute joint action
with the officers that is actionable under Section 1983. See
Rodriguez v. Winski, 973 F. Supp. 2d 411, 422 (S.D.N.Y.
2013) (finding that a private party “summoning police or
requesting that police take action ... simply does not suffice
to constitute joint action or to convert the private party into
a state actor”); Ginsberg v. Healey Car & Truck Leasing,
Inc., 189 F.3d 268, 272 (2d Cir. 1999) (private party's
“provision of background information to a police officer
does not by itself make [the private party] a joint participant
in state action under Section 1983”). Even if I infer that
Tsopanides filed a false report with the OPD, causing the
police officers to wrongfully evict Altieri, that would not
make Tsopanides a state actor. See Rodriguez, 973 F. Supp.
at 422 (“[E]ven if a private party provides false information
to police, ... such provision alone does not constitute joint
action actionable under § 1983.”); Vazquez v. Combs, No. 04-
Civ-4189 (GEL), 2004 WL 2404224, at *4 (S.D.N.Y. Oct. 22,
2004) (“[M]erely filing a complaint with the police, reporting
a crime, requesting criminal investigation of a person, or
seeking a restraining order, even if the complaint or report
is deliberately false, does not give rise to a claim against the
complainant for a civil rights violation.”). And the reasonable
inferences that I can draw from Altieri's factual allegations do
not suggest that the police officers—when visiting Altieri on
September 10—relied on Tsopanides's judgment rather than
their own. See Ginsberg, 189 F.3d at 272 (“Where ... a police
officer exercises independent judgment in how to respond to
a private party's legitimate request for assistance, the private
party is not ‘jointly engaged’ in the officer's conduct so as
to render it a state actor under Section 1983.”); Rodriguez,
973 F. Supp. 2d at 423 (A “substitution of private judgment
for police judgment [is] necessary to constitute joint action.”).
There are no factual allegations suggesting that Tsopanides
was present on September 10 or exercised any influence
over the police officers and their decision-making—other
than by potentially making a complaint to the police which,
as noted, is insufficient and is not even expressly alleged.
Cf. Powell v. Alexander, No. 3:16-CV-01654 (SRU), 2018
WL 4425986, at *4 (D. Conn. Sept. 17, 2018) (concluding
that plaintiff sufficiently stated a § 1983 claim against
a private party when plaintiff claimed “much more than
simply that” defendants contacted the police, and alleged
facts that indicated that defendants “exercised such extreme
influence over the [state] defendants, ... [and] that the police
officers ceased to exercise[ ] independent judgment” (internal
quotation marks and citation omitted)).
*4 I conclude that Altieri has failed to state a Section 1983
claim. Nonetheless, because Altieri may be able to plead
additional facts that would make out a claim of joint action
under Section 1983, I will dismiss the Section 1983 claim
without prejudice. Having dismissed Altieri's only federal
claim, I note that Altieri has not alleged any other independent
basis for federal court jurisdiction. See ECF No. 1 (invoking
the court's federal question jurisdiction based on the Section
1983 claim and the court's supplemental jurisdiction over any
state law claim). It is unclear whether the complaint was
intended to plead any state law claims. The complaint does not
contain separate counts and, although it mentions 28 U.S.C.
§ 1367, which provides for supplemental jurisdiction over
state law claims, it does not identify any such claims. Altieri's
brief, however, asserts that, in addition to being liable under
Section 1983, Tsopanides “is liable ... as a civilian damaging
personal property in an attempt to carry out an unlawful
eviction.” ECF No. 15 at 4. In any event, to the extent that
the complaint pleads any state law claims, they are dismissed
without prejudice to being filed in state court. See 28 U.S.C.
§ 1367(c)(3).
V. CONCLUSION
For the reasons above, the motion to dismiss (ECF No. 14)
is hereby GRANTED, and Altieri's Section 1983 claim is
DISMISSED without prejudice. Further, Altieri's state law
claims, if any, are DISMISSED without prejudice to being
filed in state court. The Clerk is directed this close this case,
but within 30 days of this order, Altieri may file a motion to
reopen together with an amended complaint that addresses the
defects discussed in this ruling.
All Citations
Not Reported in Fed. Supp., 2022 WL 1912851
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2016 WL 11259015
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
George L. ANDERSON, Plaintiff,
v.
Jane C. CAMERON, Teresa J. Mucha,
Joe Martens, Landon Marsh, Thomas C.
Jorling and Henry G. Williams, Defendants.
13-CV-578V(Sr)
|
Signed 09/14/2016
Attorneys and Law Firms
George L. Anderson, Frewsburg, NY, pro se.
George Michael Zimmermann, Office of the New York State
Attorney General, Buffalo, NY, for Defendants.
REPORT, RECOMMENDATION AND ORDER
H. KENNETH SCHROEDER, JR., United States Magistrate
Judge
*1 This case was referred to the undersigned by the Hon.
Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1), for
all pretrial matters and to hear and report upon dispositive
motions. Dkt. #15. By Text Order entered on March 8, 2016,
Judge Arcara reassigned this case to the Hon. Lawrence J.
Vilardo. Dkt. #24.
Currently before the Court is defendants Cameron, Marten,
and Mucha's motion to dismiss the complaint for failure to
state a claim pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Dkt. #10. For the following reasons, it is
recommended that defendants' motion to dismiss be granted.
BACKGROUND
Plaintiff commenced this pro se action alleging that
defendants have prevented him from “operat[ing] a
grandfathered private property gravel operation” in violation
of his rights under the Mining Law of New York State;
the New York State Constitution; Art. I, § 10, and the
Fifth and Fourteenth Amendments to the United States
Constitution. Dkt. #1, pp. 8-9. Plaintiff seeks injunctive relief
and compensatory and punitive damages. Dkt. #1, p. 10.
For the reasons set forth below, this Court recommends that
defendants' motion to dismiss be granted.
Plaintiff's Allegations
Plaintiff's complaint centers on a decades-old dispute over
plaintiff's right to conduct mining operations on his private
property in Chautauqua County, New York. Specifically,
plaintiff alleges that: in 1984, Peter Nixon, “a DEC Mined
Land Reclamation Specialist” (Dkt. #1, p. 4) who is not
named as a defendant in the “Caption” or “Parties to
this Action” section of the complaint (Dkt. #1, p. 1),
informed plaintiff to terminate all mining operations on his
property (Dkt. #1, p. 8); in 2005, Lucas Mahoney, another
such “Specialist” who is also not named as a defendant,
“threatened plaintiff[’s] customer with criminal charges for
purchasing gravel products from [plaintiff]” (Dkt. #1, p.
8); on November 30, 2011, Teresa J. Mucha, an “Assistant
Region 9 Attorney” with the New York State Department
of Environmental Conservation (“NYSDEC”), threatened
plaintiff with fines and penalties if he did not stop mining
his property (Dkt. #1, p. 9); on May 7, 2013, Administrative
Law Judge (“ALJ”) Edward Buhrmaster, also not named as a
defendant, “conspired ... with NYSDEC Region 9 Assistant
Attorney Teresa J. Mucha to commence illegal NYSDEC
Administrative Hearings regarding [the] constitutionality and
jurisdiction of NYS Mining Law” (Dkt. #1, p. 9); and Lucas
Mahoney and other persons also not named as defendants
used “illegally obtained search warrants” to search plaintiff's
property and “issued criminal citations that had no bases
for criminal charges,” and prosecuted plaintiff in various
municipal courts (Dkt. #1, p. 10).
Although identified as “Parties to this Action,” plaintiff's
complaint contains no factual allegations against Jane C.
Cameron or Joe Martens. Dkt. #1. Likewise, plaintiff makes
no allegations against Langdon Marsh, Thomas C. Jorling,
or Henry G. Williams, who are identified in the “Caption of
Action” but not as “Parties” to the action. Dkt. #1.
*2 Plaintiff filed his pro se complaint on June 3, 2013, along
with a request for a temporary restraining order (“TRO”). Dkt.
Nos. 1 & 3. By Decision and Order entered on August 21,
2013, the Hon. Frank P. Geraci, Jr. denied plaintiff's request
for a TRO and directed plaintiff to file an amended complaint
in which he: “names each of the defendants he intends to
sue herein, including but not limited to those individuals not
named as defendants in the complaint but referred to in the
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body of the complaint ... and those individuals already named
in the complaint as defendants—Jane C. Cameron, Teresa J.
Mucha, Joe Martens, Langdon Marsh, Thomas Jorling, and
Henry G. Williams” (Dkt. # 4, p. 3); and “alleges facts against
each of [these parties] that would support a claim(s) upon
which relief can be granted against them” (Dkt. #4, p. 7).
Judge Geraci directed that if plaintiff did not file an amended
complaint as directed, “the Court will proceed to review the
complaint ... against only those defendants named in the
Caption and Parties to this Action: Defendant's Information
Section of the Complaint,” specifically, defendants Cameron,
Mucha, and Martens. Dkt. #4, p. 7 (emphasis added).
Judge Geraci noted that according to the complaint, plaintiff
had filed a number of lawsuits in both this Court and the
New York State Courts “dealing with the same facts involved
in this action.” Dkt. #4, p. 2. “Moreover,” Judge Geraci
wrote, “there appear to be significant questions related to
the merits and viability of the complaint, including but not
limited to whether it states a claim upon which relief may be
granted and whether some of the claims alleged are barred,
in whole or in part, by, among other things, the doctrine of
res judicata, the statute of limitations and absolute and quasi-
judicial immunity.” Dkt. #4, p. 4.
On September 5, 2013, plaintiff filed a second motion for a
TRO (Dkt. #5), which Judge Geraci construed as a motion
for reconsideration and denied on January 7, 2014 (Dkt. #8).
In the interim, plaintiff filed an interlocutory appeal of Judge
Geraci's initial decision denying a TRO (Dkt. #6), which the
Second Circuit Court of Appeals affirmed by Summary Order
entered on June 27, 2014. Dkt. #11. Plaintiff never filed an
amended complaint, thereby forfeiting any potential clams
against Langdon Marsh, Thomas Jorling, Henry G. Williams,
Peter Nixon, Lucas Mahoney, and ALJ Edward Buhrmaster.
Defendants Cameron, Mucha, and Martens moved to dismiss
the complaint for failure to state a claim on March 27, 2014,
during the pendency of the interlocutory appeal. (Dkt. #10).
After two extensions of time to respond and an order to
show cause why the case should not be dismissed for failure
to prosecute, plaintiff filed his response and memorandum
in opposition (Dkt. Nos. 22, 26) to defendants' motion to
dismiss, and defendants replied (Dkt. #23).
DISCUSSION AND ANALYSIS
Dismissal Standard
To survive a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, “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 Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007) ). A complaint that
offers “a litany of general conclusions that shock but have no
meaning” is not facially plausible. Tufano v. One Toms Point
Lane Corp., 64 F. Supp. 2d 119, 123 (S.D.N.Y. 199) (quoting
Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) ). Rather,
“[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.” Iqbal, 556 U.S. at 678. Application of this standard
is “a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679.
“In adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration “to facts stated on the face of the
complaint or incorporated in the complaint by reference, and
to matters of which judicial notice may be taken.” Leonard F.
v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir.
1999); see also Kramer v. Time Warner, Inc., 937 F.2d 767,
773 (2d Cir. 1991).
42 U.S.C. § 1983
*3 Plaintiff's complaint is properly asserted under 42 U.S.C.
§ 1983, which provides a civil claim for damages against
“[e]very person who, under color of any statute ... of any
State ... subjects, or causes to be subjected, any citizen ... to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws.” 42 U.S.C. § 1983. “Section
1983 itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights established
elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.
1999) (internal citations omitted). To prevail on a claim under
42 U.S.C. § 1983, a plaintiff must establish that a person
acting under color of state law deprived him of a federal
right. Id. Here, plaintiff claims that defendants violated his
rights under the Fifth and Fourteenth Amendments to the
Constitution of the United States. Dkt. #1.
Defendants Cameron and Martens: Personal
Involvement
Defendants must be personally involved in an alleged
constitutional deprivation for a plaintiff to be awarded
damages under 42 U.S.C. § 1983. Gaston v. Coughlin,
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249 F.3d 156, 164 (2d Cir. 2001); Al-Jundi v. Estate of
Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). Defendants
argue that Cameron, the New York State Attorney General,
and Martens, the Commissioner of the New York Department
of Environmental Conservation, must be dismissed from
the case because plaintiff has failed to allege any action
or involvement on either of their parts and their status as
supervisors, standing alone, is insufficient to state a claim.
“There is no respondeat superior liability in § 1983 cases.”
Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). That is,
supervisory officials may not be held liable merely because
they occupy a position of authority. Black v. Coughlin, 76 F.3d
72, 74 (2d Cir. 1996). In Colon v. Coughlin, 58 F.3d 865 (2d
Cir. 1995), the Second Circuit Court of Appeals held that a
plaintiff may demonstrate a defendant supervisor's liability
through evidence 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 or
permitted the continuation of a policy or custom under which
unconstitutional practices occurred; (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. Colon, 58 F.3d at 873.
Following Colon, the Supreme Court explicitly rejected the
argument in Iqbal, 556 U.S. at 677, that “a supervisor's
mere knowledge of his subordinate's discriminatory purpose
amounts to the supervisor's violating the Constitution.”
This created conflict within the Second Circuit about the
continuing viability of Colon’s supervisory liability test.
Reynolds v. Barrett, 685 F.3d 193, 206 (2d Cir. 2012); Aguilar
v. Immigration & Customs Enforcement Div., 811 F. Supp.
2d 803, 814 (S.D.N.Y. 2011) (acknowledging that the Second
Circuit Court of Appeals has not yet decided which of the
Colon factors remain a basis for establishing supervisory
liability following Iqbal, and no clear consensus has emerged
among the district courts within the Circuit).
However, even if “knowledge and acquiescence,” “failure
to train” and similar theories of supervisory liability were
still available after Iqbal, plaintiff has nonetheless failed to
allege a facially plausible claim against Cameron or Marten
under any theory. Indeed, plaintiff has not made a single
factual allegation anywhere in the complaint against either
of these defendants. Dkt. #1. As defendants point out, “aside
from listing Cameron and Martens as defendants, their names
appear nowhere in the Complaint.” Dkt. #10-1, p. 7. Where
a plaintiff “fails to specify any culpable action taken” by a
defendant, his complaint must be dismissed. Arar v. Ashcroft,
585 F.3d 559, 569 (2d Cir. 2009). Dismissal is particularly
appropriate where, as here, the plaintiff has rejected the
opportunity to re-plead. Id. For this reason, it is recommended
that the complaint be dismissed in its entirety as against
defendants Cameron and Marten.
Letter Threatening Fines and Penalties
Due Process
*4 In his third claim, plaintiff alleges that defendant Mucha
violated his due process rights by “stat[ing that] plaintiff
violated the NYS Mining Law” and “under threats of fines
and penalties[, ordering that] plaintiff ... stop operating [his]
gravel operation.” Dkt. # 1, p. 9. Under the Due Process
Clause of the Fifth Amendment of the Constitution, “[n]o
person shall ... be deprived of life, liberty, or property, without
due process of law.” U.S. CONST. AMEND. V. The Due
Process Clause protects individual citizens “against arbitrary
action of government,” County of Sacramento v. Lewis, 523
U.S. 833, 845 (1998), and has both a procedural component
protecting against the “denial of fundamental procedural
fairness,” Id. at 845, and a substantive component guarding
against “the exercise of power without any reasonable
justification in the service of a legitimate governmental
objective.” Id. at 846; Lombardi v. Whitman, 485 F.3d 73,
78-79 (2d Cir. 2007).
Procedural Due Process
To state a claim for deprivation of property without due
process of law, a plaintiff must: (1) identify a property right;
(2) show that the state has deprived him of that right; and (3)
show that the deprivation was effected without due process.
Local 342, Long Island Pub. Serv. Employees v. Town Bd. of
the Town of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994);
Nat'l Fuel Gas Supply Corp. v. Town of Wales, 904 F. Supp. 2d
324, 331 (W.D.N.Y. 2012). Plaintiff's allegations have failed
to meet any of these requirements.
As an initial matter, it is unclear from the complaint
whether plaintiff's right to conduct a gravel operation on his
property qualifies as a protected property interest under the
Due Process Clause. Property rights “are created and their
dimensions are defined by existing rules or understandings
that stem from an independent source such as state law—rules
or understandings that secure certain benefits and that support
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claims of entitlement to those benefits.” Donohue v. New York,
No. 1:11-CV-1530 MAD/CRH, 2012 WL 6020058, at *27
(N.D.N.Y. Dec. 3, 2012) (quoting Bd. of Regents of State
Coll. v. Roth, 408 U.S. 564, 577 (1972) (holding that the
plaintiff must have more than a unilateral expectation; the
plaintiff must have a legitimate claim of entitlement to the
benefit) ). Other than alleging that his mining operation is
“grandfathered” (Dkt. #1, p. 8), plaintiff fails to identify the
“independent source” from which his entitlement to operate
a mine on his property stems.
Even assuming that plaintiff has a protected property interest,
he does not allege that defendant Mucha deprived him of his
right to mine his land, only that she threatened to fine him
if he continued to do so. This is insufficient to state a claim
under 42 U.S.C. § 1983. “[T]here can be no recovery under
§ 1983 for an attempted constitutional violation; only a claim
of actual deprivation is cognizable under the statute.” Lyddy v.
Bridgeport Bd. of Educ., No. 3:06-CV-1420 AHN, 2007 WL
2697452, at *5 (D. Conn. Sept. 11, 2007); Hale v. Townley, 45
F.3d 914, 920 (5th Cir. 1995); Mozzochi v. Borden, 959 F.2d
1174, 1180 (2d Cir. 1992); Dixon v. City of Lawton, 898 F.2d
1443, 1449 (10th Cir. 1990); Dooley v. Reiss, 736 F.2d 1392,
1394-95 (9th Cir. 1984); Landrigan v. City of Warwick, 628
F.2d 736, 742 (1st Cir. 1980); Ashford v. Skiles, 837 F. Supp.
108, 115 (E.D. Pa. 1993); Defeo v. Sill, 810 F. Supp. 648, 658
(E.D. Pa. 1993). “[T]he mere attempt to deprive a person of
his [constitutional] rights is not, under usual circumstances,
actionable under section 1983.” Andree v. Ashland County,
818 F.2d 1306, 1311 (7th Cir. 1987).
Lastly, plaintiff alleges that he has appeared before numerous
courts to adjudicate issues related to his mining business,
including the United States District Court for the Western
District of New York; New York State Supreme Court,
Chautauqua County; New York State Supreme Court,
Appellate Division (Second Department); and the New York
State Court of Claims. Dkt. #1, pp. 4-7. All of these
cases were decided against plaintiff, being dismissed upon
the opposing party's motion, or sua sponte as frivolous,
malicious, or failing to state a claim. Dkt. #1, pp. 4-7.
Moreover, as further discussed below, plaintiff asserts in his
fourth claim that defendant Mucha conspired with an ALJ to
hold “illegal NYSDEC Administrative Hearings” regarding
plaintiff's continuing mining operations. Dkt. #1, p. 9. These
facts as alleged by plaintiff demonstrate that he has been
provided with sufficient process of law.
Substantive Due Process
*5 Plaintiff's allegations are likewise insufficient to assert
a substantive due process claim. “Substantive due process
is an outer limit on the legitimacy of governmental action.”
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999).
“It does not forbid governmental actions that might fairly be
deemed arbitrary or capricious and for that reason correctable
in a state court lawsuit seeking review of administrative
action.” Id. Rather, “substantive due process standards are
violated only by conduct that is so outrageously arbitrary as
to constitute a gross abuse of governmental authority.” Nat'l
Fuel Gas Supply Corp., 904 F. Supp. 2d at 332 (quoting
Natale, 170 F.3d at 263); see, e.g., Lewis, 523 U.S. at 845
(stating that “only the most egregious official conduct can be
said to be arbitrary in the constitutional sense”); Silverman
v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988) (holding that
“[o]nly a substantial infringement of state law prompted by
personal or group animus, or a deliberate flouting of the law
that trammels significant personal or property rights, qualifies
for relief under § 1983”). It cannot be said that defendant
Mucha's conduct in sending a letter threatening plaintiff
with fines for conducting mining operations on his property,
apparently without a permit, was “so outrageously arbitrary as
to constitute a gross abuse of governmental authority.” Natale,
170 F.3d at 263.
The Takings Clause
The Takings Clause of the Fifth Amendment provides that
no “private property shall be taken for public use, without
just compensation.” U.S. CONST. AMEND. V. The law
recognizes two distinct types of takings claims: physical
takings and regulatory takings. See Meriden Trust & Safe
Deposit Co. v. FDIC, 62 F.3d 449, 454 (2d Cir. 1995).
“A physical taking, the more recognizable of the two,
occurs when the government physically takes possession of a
property interest.” Nat'l Fuel Gas Supply Corp., 904 F. Supp.
2d at 334. By contrast, “[t]he gravamen of a regulatory taking
claim is that the state regulation goes too far and in essence
effects a taking.” Buffalo Teachers Fed'n v. Tobe, 464 F.3d
362, 374 (2d Cir. 2006) (internal citations omitted). “[T]o
withstand a motion to dismiss [on a regulatory takings claim],
an aggrieved plaintiff must allege, not only a taking, but that
compensation was sought via state procedures and denied.”
Allocco Recycling, Ltd. v. Doherty, 378 F. Supp. 2d 348, 361
(S.D.N.Y. 2005) (internal quotations omitted). This plaintiff
has failed to do.
As previously discussed herein, plaintiff does not allege that
defendant Mucha actually enjoined him from conducting his
mining business on his private property but merely “stated
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[that] plaintiff [was] violating NYS Mining Law ... [u]nder
threats of fines and penalties.” Dkt. #1, p. 9. Further, there is
no allegation that plaintiff sought compensation through the
state for the “taking” of or interference with his right to mine
his property. For this reason, plaintiff's complaint fails to state
a takings claim.
Conspiracy to “Commence Illegal NYSDEC
Administrative Hearings”
In his fourth claim, plaintiff alleges that defendant Mucha
conspired with ALJ Edward Buhrmaster, a non-party,
“to commence illegal NYSDEC Administrative Hearings
regarding [the] constitutionality and jurisdiction of [the] NYS
Mining Law.” Dkt. #1, p. 9. To survive a motion to dismiss
a conspiracy claim under 42 U.S.C. § 1983, a plaintiff must
allege: (1) an agreement between two or more state actors; (2)
to act in concert to inflict an unconstitutional injury; and (3)
an overt act done in furtherance of that goal, causing damages.
See Ciambriello v. County of Nassau, 292 F.3d 307, 324-25
(2d Cir. 2002); 1 Christian v. Town of Riga, 649 F. Supp. 2d
84, 98-99 (W.D.N.Y. 2009) “[C]omplaints containing only
conclusory, vague, or general allegations that the defendants
have engaged in a conspiracy to deprive the plaintiff of his
constitutional rights are properly dismissed.” Ciambriello,
292 F.3d at 325; Walker v. Jastremski, 430 F.3d 560, 564
n.5 (2d Cir. 2005). Moreover, although “[a] plaintiff is not
required to list the place and date of defendants' meetings
and the summary of their conversations when he pleads
conspiracy, ... the pleadings must present facts tending to
show agreement and concerted action.” Fisk v. Letterman,
401 F. Supp. 2d 362, 376 (S.D.N.Y. 2005) (report and
recommendation) (accepted in part and rejected in part by
Fisk v. Letterman, 401 F. Supp. 2d 362 (S.D.N.Y. 2005)
(citations and quotations omitted) ).
*6 In this case, plaintiff has failed to allege any facts
showing an agreement between defendant Mucha and the
ALJ to injure plaintiff constitutionally or any overt act in
furtherance of that agreement. It appears from the wording of
the complaint that even if Mucha commenced a proceeding
against plaintiff, he never in fact appeared before the ALJ.
Dkt. #1, p. 9. As previously stated herein, “there can be
no recovery under § 1983 for an attempted constitutional
violation; only a claim of actual deprivation is cognizable
under the statute.” Lyddy, 2007 WL 2697452, at *5 (citing
cases). Plaintiff has also not alleged that he was damaged by
Mucha and ALJ Buhrmaster's actions.
Even if properly plead, plaintiff's conspiracy claim would
nonetheless fail because defendant Mucha, as an agency
attorney, is entitled to immunity for commencing a NYSDEC
proceeding. “[A]cts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate of the State, are
entitled to the protections of absolute immunity.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993); Imbler v. Pachtman,
424 U.S. 409, 431 (1976) (holding that “in initiating a
prosecution and in presenting the State's case, the prosecutor
is immune from a civil suit for damages under § 1983”).
Put another way, a prosecutor enjoys absolute immunity for
prosecutorial activities unless he or she “proceeds in the clear
absence of all jurisdiction.” Barr, 810 F.2d at 361.
An agency attorney like defendant Mucha may be entitled to
absolute immunity provided that her conduct is prosecutorial
in nature and within her jurisdiction. Neroni v. Grannis,
No. 3:11-CV-1485 LEK/DEP, 2013 WL 1183075, at *11
(N.D.N.Y. Mar. 21, 2013); Rodow v. City of New York,
822 F.2d 324, 327 (2d Cir. 1987) (holding that an
attorney for the municipal commission on human rights was
entitled to absolute immunity as her conduct was “at least
colorably prosecutorial in nature and not clearly beyond
her jurisdiction) ). In the view of this Court, defendant
Mucha's conduct in commencing an action against plaintiff
for violations of the environmental law is clearly “akin to
that of a prosecutor.” Bath Petroleum Storage, Inc. v. Sovas,
136 F. Supp. 2d 52, 60 (N.D.N.Y. 2001) (holding that a
NYSDEC attorney was entitled to absolute immunity for any
actions he took in initiating an administrative claim). She
is therefore entitled to absolute immunity for the conduct
alleged in plaintiff's fourth claim.
Contracts Clause
To the extent that plaintiff invokes the Contracts Clause, his
complaint also fails to state a claim. The Contracts Clause
provides that “No State shall ... pass any ... Law impairing
the Obligation of Contracts.” U.S. CONST. ART. I, § 10.
To state a claim for a violation of the Contracts Clause, a
plaintiff must allege sufficient facts to demonstrate that state
law has “operated as a substantial impairment of a contractual
relationship.” Gen. Motors Corp. v. Romein, 503 U.S. 181,
186 (1992). To determine if the Contracts Clause had been
violated, a court looks at three components: “whether there
is a contractual relationship, whether a change in law impairs
that contractual relationship, and whether the impairment is
substantial.” Harmon v. Markus, 412 Fed.Appx. 420, 423 (2d
Cir. 2011) (citing Romein, 503 U.S. at 186).
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Plaintiff alleges that a NYSDEC Mined Land Reclamation
Specialist threatened plaintiff's “customer” with criminal
charges for purchasing gravel products from him. (Dkt. #1, p.
8). This falls far short of establishing that plaintiff was a party
to a “contractual relationship.” As defendants have noted,
other than to identify the “Contracts Clause” as a potential
basis of relief, plaintiff does not use the word “contract”
anywhere in the complaint. Dkt. #10-1, p. 12. Even if plaintiff
had a longterm contract to sell gravel products, he has not
alleged that there was some intervening change in law that
somehow impaired that relationship. This is of paramount
importance because a “contract ... cannot be impaired by a
law in effect at the time the contract was made.” Harmon,
412 Fed.Appx. at 423 (citing 2 Tudor City Place Assocs. v. 2
Tudor City Tenants Corp., 924 F.2d 1247, 1254 (2d Cir. 1991)
(recognizing that “[l]aws and statutes in existence at the time
a contract is executed are considered a part of the contract,
as though they were expressly incorporated therein”) ). As
plaintiff has failed to plead any of the essential elements of
a Contracts Clause claim, any claims predicated on the U.S.
Constitution, Article I, § 10 should be dismissed.
CONCLUSION
*7 For the foregoing reasons, this Court recommends that
defendants' motion to dismiss (Dkt. #10) be granted in its
entirety. As plaintiff failed to file an amended complaint
as directed by Judge Geraci, only those claims as against
Cameron, Martens, and Mucha are subject to review. Dkt.
#4, p. 7. Should the district judge adopt this Court's
recommendation, it would result in this case being dismissed
against all remaining parties and the case being closed.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. §
636(b)(1) that:
This Report, Recommendation and Order be filed with the
Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and
Order must be filed with the Clerk of this Court within
fourteen (14) days after receipt of a copy of this Report,
Recommendation and Order in accordance with the above
statute, Fed.R.Civ.P. 72(b) and Local Rule 72(b).
The district judge will ordinarily refuse to consider de
novo arguments, case law and/or evidentiary material which
could have been, but were not presented to the magistrate
judge in the first instance. See, e.g., Patterson-Leitch Co. v.
Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st
Cir. 1988).
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal
the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106
S. Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd.,
838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) of
the Local Rules for the Western District of New York,
“written objections shall specifically identify the portions
of the proposed findings and recommendations to which
objection is made and the basis for such objection and shall
be supported by legal authority.” Failure to comply with the
provisions of Rule 72(b) may result in the District Judge's
refusal to consider the objection.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 11259015
Footnotes
1 In Toussie v. Powell, 323 F.3d 178, 185 n.3 (2d Cir. 2003), the Second Circuit Court of Appeals declined
to decide whether the pleading requirements for a Section 1983 conspiracy claim set forth in Ciambriello
survived two subsequent Supreme Court decisions, Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002),
and Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993), which
generally rejected heightened pleading standards. See Sibiski v. Cuomo, No. 08 CV 3376 SJF ARL, 2010
WL 3984706, at *6 (E.D.N.Y. Sept. 15, 2010). Following Toussie, the Second Circuit Court of Appeals, as
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well as other courts within the Circuit, have analyzed Section 1983 conspiracy claims using the Ciambriello’s
pleading standard. See Krug v. McNally, No. 07-1015-cv, 2010 WL 772988, at *1 (2d Cir. Mar. 8, 2010)
(quoting Ciambriello’s standard for pleading a Section 1983 conspiracy claim); Orr ex rel. Orr v. Miller Place
Union Free School Dist., No. 07-CV-787, 2008 WL 2716787, at *4 (E.D.N.Y. July 9, 2008) (citing cases).
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Anderson v. Cameron, Not Reported in Fed. Supp. (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 2240253
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
George L. ANDERSON, Plaintiff,
v.
Jane C. CAMERON, Teresa J. Mucha,
Joe Martens, Langdon Marsh, Thomas C.
Jorling, and Henry G. Williams, Defendants.
13-CV-578-MAT
|
Signed 05/23/2017
Attorneys and Law Firms
George L. Anderson, Frewsburg, NY, pro se.
George Michael Zimmermann, Office of the New York State
Attorney General, Buffalo, NY, for Defendants.
DECISION AND ORDER
MICHAEL A. TELESCA, United States District Judge
I. Introduction
*1 Pro se plaintiff George L. Anderson (“plaintiff”)
commenced the instant action on June 3, 2013, alleging
that defendants unlawfully prevented him from operating a
“grandfathered” gravel mining operation on his property in
Chautauqua County, New York. On August 21, 2013, the
Court entered a Decision and Order in which it granted
plaintiff permission to proceed in forma pauperis and
instructed him to file an amended complaint no later than
September 23, 2013. Docket No. 4. Plaintiff was informed
that if he failed to file an amended complaint, the Court would
“proceed to further review fully the complaint, pursuant to
28 U.S.C. § 1915(e)(2)(B), against only those defendants
named in the Caption and Parties to Action ... [s]ection[s] of
the complaint.” Id. at 8. Plaintiff failed to file an amended
complaint, and the Court subsequently ordered that the
complaint be served. Docket No. 8. Defendants Jane C.
Cameron (“Cameron”), Joe Martens (“Martens”), and Teresa
J. Mucha (“Mucha”) (collectively the “moving defendants”)
filed a motion to dismiss for failure to state a claim on
March 27, 2014. Docket No. 10. The docket indicates that
defendants Thomas C. Jorling, Langdon Marsh, and Henry
G. Williams (collectively the “non-moving defendants”) were
never served with the with the summons and complaint.
Docket No. 9.
On January 4, 2017, United States Magistrate Judge H.
Kenneth Schroeder issued a Report and Recommendation
(“R&R”) (Docket No. 27) recommending that the moving
defendants' motion to dismiss be granted. For the reasons
discussed below, the Court adopts the findings set forth in the
R&R and grants the motion to dismiss. In addition, the Court
finds sua sponte pursuant to 28 U.S.C. § 1915 that plaintiff
has failed to state a claim as to Thomas C. Jorling, Langdon
Marsh, and Henry G. Williams. As a result, the complaint is
dismissed in its entirety.
II. Discussion
A. Standard of Review
When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes a “de
novo determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1)(C). When only general
objections are made to a magistrate judge’s report and
recommendation, the district judge reviews it for clear error or
manifest injustice. E.g., Brown v. Peters, 1997 WL 599355, at
*2-3 (N.D.N.Y. Sept. 22, 1997), aff'd, 175 F.3d 1007 (2d Cir.
1999). After conducting the appropriate review, the district
court 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)(1)(C).
B. Sua Sponte Dismissal of Plaintiff’s Claims Against
the Non-Moving Defendants
As a threshold matter, the Court notes that Judge Schroeder
limited his consideration to whether plaintiff had stated
a claim as to the moving defendants. Judge Schroeder
apparently mistakenly read the Court’s August 21, 2013
Decision and Order as dismissing plaintiff’s claims against
the non-moving defendants. See Docket No. 27 at 4. However,
review of the August 21, 2013 Decision and Order shows that
the Court reserved decision on the adequacy of the claims
against all the defendants listed in the caption, which includes
non-moving defendants Langdon Marsh, Thomas C. Jorling,
and Henry G. Williams. See Docket No. 4 at 7. The Court
has reviewed those claims and determines that sua sponte
dismissal is appropriate as to the non-moving defendants.
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*2 Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court shall
dismiss a case in which in forma pauperis status has been
granted if, at any time, the Court determines that the action (i)
is frivolous or malicious; (ii) fails to state a claim upon which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief. Section 1915
“provide[s] an efficient means by which a court can screen
for and dismiss legally insufficient claims.” Abbas v. Dixon,
480 F.3d 636, 639 (2d Cir. 2007). “[S]ua sponte § 1915 ...
dismissal may occur and is in some cases preferable after
service of process and expansion of the record.” Anderson v.
Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
In evaluating the complaint, the Court must accept as true
all of the factual allegations and must draw all inferences in
plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d
Cir. 2003). Moreover, “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil rights
violations.” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004). Nevertheless, even pleadings submitted pro se
must meet the notice requirements of Rule 8 of the Federal
Rules of Civil Procedure. Wynder v. McMahon, 360 F.3d 73
(2d Cir. 2004).
Here, the complaint contains no factual allegations
whatsoever against non-moving defendants Langdon Marsh,
Thomas C. Jorling, and Henry G. Williams. Indeed, the
only times the non-moving defendants' names appear are in
the case caption and list of parties. Moreover, plaintiff was
given an opportunity to amend his complaint pursuant to the
Court’s August 21, 2013 Decision and Order and failed to
do so. Under these circumstances, the Court finds that sua
sponte dismissal of the claims against non-moving defendants
Langdon Marsh, Thomas C. Jorling, and Henry G. Williams
is appropriate.
C. Plaintiff’s Objections to the R&R
Turning to plaintiff’s claims against the moving defendants,
plaintiff’s objections to the R&R are nothing more than a
reiteration of the arguments considered by Judge Schroeder.
As a result, the Court reviews the R&R for clear error, and
finds none.
As discussed in detail in the R&R, the complaint contains no
factual allegations whatsoever regarding defendants Cameron
and Martens. Because there is no supervisory liability in a
case brought under 42 U.S.C. § 1983, and because plaintiff
has failed to identify any allegedly unlawful actions taken by
Cameron and/or Martens, dismissal of his claims against them
is appropriate.
With respect to defendant Mucha, plaintiff alleges that she
violated his due process rights by ordering him to stop
operating his gravel operation under threat of fines and
penalties. As set forth in the R&R, even assuming that
plaintiff had a cognizable property interest in continuing
his gravel operation, he has failed to allege facts from
which a fact-finder could conclude that defendant Mucha
actually prevented him from doing so. Moreover, plaintiff’s
own papers demonstrate that he has been afforded extensive
process, including having had his claims adjudicated by no
less than four state and federal courts, all of which decided
against him.
Plaintiff also has not stated claims for violation of the
Constitution’s Takings Clause or Contracts Clause. As Judge
Schroeder explained, in order to state a claim based on
the Takings Clause, a plaintiff must allege that he sought
compensation via state procedures and was denied. Plaintiff
has made no such claim here. Plaintiff also has not alleged
the existence of a contract or a change in law that impaired
that contract, as is required to state a claim for violation of the
Contracts Clause.
*3 Finally, with respect to Plaintiff’s conspiracy claim, the
Court agrees with Judge Schroeder that plaintiff has failed
to allege any facts showing an agreement between defendant
Mucha and the administrative law judge. Additionally, Mucha
was acting in a prosecutorial capacity when she allegedly
initiated administrative proceedings against plaintiff and is
therefore entitled to immunity from civil suit.
Having considered plaintiff’s objections, and for the reasons
set forth above, this Court finds no clear error or manifest
injustice in Judge Schroeder’s findings, as a whole, and
therefore adopts the R&R with respect to the claims against
the moving defendants.
III. Conclusion
For the reasons set forth in Judge Schroeder’s thorough and
well-reasoned R&R, the undersigned adopts his conclusions.
The R&R (Docket No. 27) is hereby adopted, and the moving
defendants' motion to dismiss (Docket No. 10) is granted. In
addition, the Court sua sponte dismissed the claims against
the non-moving defendants, for the reasons set forth above.
The Clerk of Court is directed to close this case.
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ALL OF THE ABOVE IS SO ORDERED. All Citations
Not Reported in Fed. Supp., 2017 WL 2240253
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Whitbeck v. Otsego County, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2959467
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Janel WHITBECK, Plaintiff,
v.
OTSEGO COUNTY; Otsego County Sheriff's
Office; Deputy E. Lincoln, in her individual and
official capacities; and Deputy J. Smith, in his
individual and official capacities, Defendants.
3:25-CV-00673 (AMN/ML)
|
Signed October 20, 2025
Attorneys and Law Firms
JANEL WHITBECK, 225 Main Street, Franklin, New York
13775, Plaintiff pro se.
ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On May 27, 2025, Plaintiff pro se Janel Whitbeck
commenced this action and asserted claims of false arrest and
deliberate indifference to medical needs pursuant to 42 U.S.C.
§ 1983, as well as claims pursuant to the Americans with
Disabilities Act (“ADA”) and the New York State Andrew
Kearse Act, N.Y. Exec. Law § 837-u, against Otsego County,
the Otsego County Sheriff's Office, and Otsego County
Sheriff's Deputies Lincoln and Smith in their individual and
official capacities. Dkt. No. 1. Plaintiff did not pay the
filing fee and sought leave to proceed in forma pauperis
(“IFP”). Dkt. No. 2. This matter was referred to Magistrate
Judge Miroslav Lovric, who, on September 24, 2025, granted
Plaintiff's motion for leave to proceed IFP. Dkt. No. 5.
Also on September 24, 2025, after conducting an initial
review of the Complaint pursuant to 28 U.S.C. § 1915(e),
Magistrate Judge Lovric issued an Order and Report-
Recommendation recommending that (i) Plaintiff's false
arrest and deliberate indifference claims be permitted to
proceed against Otsego County and Defendants Lincoln
and Smith in their individual and official capacities; (ii)
Plaintiff's ADA claim be permitted to proceed against Otsego
County and Defendants Lincoln and Smith in their official
capacities; and (iii) Plaintiff's claims under the New York
State Andrew Kearse Act and Plaintiff's claims against the
Otsego County Sheriff's Office be dismissed with prejudice.
Dkt. No. 5 (“Report-Recommendation”). Magistrate Judge
Lovric advised that under 28 U.S.C. § 636(b)(1), the parties
had fourteen days within which to file written objections and
that failure to object to the Report-Recommendation within
fourteen days would preclude appellate review. Dkt. No. 5 at
14. 1
For the reasons set forth below, the Court adopts the Report-
Recommendation in its entirety, except that it dismisses
Plaintiff's false arrest and deliberate indifference claims
against Defendants Lincoln and Smith in their official
capacities with prejudice and without leave to amend and
permits Plaintiff's ADA claim to proceed against Defendants
Lincoln and Smith in their official capacities only to the extent
Plaintiff seeks prospective injunctive relief.
II. BACKGROUND
On March 1, 2025, Defendants Lincoln and Smith arrested
Plaintiff for petit larceny. Dkt. No. 5 at 2 (citing Dkt.
No. 1 at 2). Plaintiff alleges that, shortly before her arrest,
she experienced a medical emergency while attempting to
complete a transaction at Walmart. Id. (citing Dkt. No. 1 at
2). Specifically, Plaintiff alleges that her trained service dog
alerted her to the onset of a transient ischemic attack (referred
to as “TIA”), and when she attempted to return to her vehicle
to access medication, Walmart staff stopped her, took her
to the security office, and summoned law enforcement. Id.
(citing Dkt. No. 1 at 2).
Plaintiff alleges that she was visibly impaired; she was
wearing a medical alert bracelet, her speech was garbled, and
her gait was unsteady. Id. (citing Dkt. No. 1 at 2). Plaintiff
alleges that during Defendant Lincoln's search of Plaintiff she
observed her medical alert bracelet. Id. (citing Dkt. No. 1 at
2). Plaintiff further alleges that Defendant Smith physically
steadied her, which indicated his awareness of Plaintiff's
impairment. Id. (citing Dkt. No. 1 at 2). Defendants Lincoln
and Smith then allegedly proceeded to book, fingerprint, and
photograph Plaintiff while she was exhibiting a facial droop
consistent with a TIA. Id. (citing Dkt. No. 1 at 2).
III. STANDARD OF REVIEW
*2 This Court reviews de novo those portions of a
magistrate judge's report-recommendation that have been
properly preserved with a specific objection. Petersen v.
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Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012); 28
U.S.C. § 636(b)(1)(C). If no specific objections have
been filed, this Court reviews a magistrate judge's report-
recommendation for clear error. See Petersen, 2 F. Supp. 3d
at 228 (citing Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition). Similarly, if an objection simply
rehashes arguments originally presented to the magistrate
judge, this Court reviews the relevant portions of the report-
recommendation for clear error. See Petersen, 2 F. Supp. 3d
at 228-29 & n.6 (collecting cases). “When performing such
a ‘clear error’ review, ‘the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.’ ” Dezarea W. v. Comm'r of Soc.
Sec., No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y.
Mar. 17, 2023) (quoting Canady v. Comm'r of Soc. Sec., No.
17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,
2017)).
“[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).
The Second Circuit has held that courts are obligated to
“make reasonable allowances to protect pro se litigants” from
inadvertently forfeiting legal rights merely because they lack
a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)). That said, “even a pro se party's objections
to a Report and Recommendation must be specific and clearly
aimed at particular findings in the magistrate's proposal ....”
Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920,
at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord
Caldwell v. Petros, No. 22-cv-567, 2022 WL 16918287, at
*1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the
court 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)(1)(C).
IV. DISCUSSION
Because neither party has filed any objections to the
Report-Recommendation, the Court reviews the Report-
Recommendation for clear error.
First, Magistrate Judge Lovric recommended that Plaintiff's
claims against the Otsego County Sheriff's Office be
dismissed with prejudice. Dkt. No. 5 at 6. Specifically,
Magistrate Judge Lovric noted that a municipal department
“does not have the capacity to be sued as an entity separate
from the municipality in which it is located.” Id. at 5 (quoting
White v. Syracuse Police Dep't, No. 18-cv-1471, 2019 WL
981850, at *3 (N.D.N.Y. Jan. 7, 2019)). Under New York law,
“a department of a municipal entity is merely a subdivision
of the municipality and has no separate legal existence.”
Hoisington v. County of Sullivan, 55 F. Supp. 2d 212, 214
(S.D.N.Y. 1999); see also Dudley v. Hochul, No. 24-cv-0048,
2024 WL 1906594, at *9 (N.D.N.Y. May 1, 2024) (dismissing
claims against the Onondaga County Sheriff's Office because
it was not amenable to suit), report and recommendation
adopted, 2024 WL 2399913 (N.D.N.Y. May 23, 2024).
Second, Magistrate Judge Lovric addressed Plaintiff's claim
of false arrest under the Fourth Amendment against
Defendants Lincoln and Smith in their individual and official
capacities. Dkt. No. 5 at 6-7. Magistrate Judge Lovric noted
that, when analyzing constitutional claims of false arrest,
courts generally look to the law of the state where the arrest
occurred. Id. at 6 (citing Russo v. City of Bridgeport, 479
F.3d 196, 203 (2d Cir. 2007)). “To establish a claim of false
arrest under New York law, the plaintiff must show that:
(1) the defendant intended to confine him, (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.” Id. (internal brackets omitted)
(quoting Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975)).
Confinement is otherwise privileged when officers “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.” Id. at 6-7 (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Here,
Plaintiff alleges that she experienced a TIA while attempting
to complete a transaction at Walmart, and in the course of
her attempt to access medication in her car, Walmart staff
summoned law enforcement. Dkt. No. 5 at 2 (citing Dkt. No.
1 at 2). Plaintiff further alleges that despite their awareness
of her impairment, Defendants Lincoln and Smith proceeded
to arrest her. Id. Magistrate Judge Lovric recommended that
Plaintiff's claim for false arrest against Defendants Lincoln
and Smith proceed. Id. at 7.
*3 Third, Magistrate Judge Lovric addressed Plaintiff's
claim of deliberate indifference to medical needs under
the Fourteenth Amendment against Defendants Lincoln and
Smith in their individual and official capacities. Id. at 7-8.
Courts evaluate claims of deliberate indifference that arise
during the course of a pretrial arrest and detainment under the
Due Process Clause of the Fourteenth Amendment. Mills v.
Fenger, 216 F. App'x 7, 10 (2d Cir. 2006) (citing Weyant, 101
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F.3d at 856). Magistrate Judge Lovric noted that a plaintiff
must demonstrate that (i) an official denied plaintiff the
treatment needed to remedy a serious medical condition, and
(ii) the official denied such treatment because of his deliberate
indifference to that need. Dkt. No. 5 at 7-8 (citing Mills, 216
F. App'x at 10). Here, among other things, Plaintiff alleges
that in connection with her arrest for petit larceny, Defendants
proceeded to book Plaintiff after she explained that she was
experiencing a TIA and while she was exhibiting symptoms
of a TIA. See id. at 2 (citing Dkt. No. 1 at 2). Magistrate Judge
Lovric recommended that Plaintiff's medical indifference
claim proceed against Defendants Lincoln and Smith. See id.
at 8. 2
Fourth, Magistrate Judge Lovric addressed Plaintiff's claims
of false arrest and deliberate indifference against Otsego
County. Dkt. No. 5 at 8-9. “[T]o hold a municipality liable
under § 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.”
Adams v. City of Syracuse, No. 21-cv-650 (AMN/MJK), 2025
WL 2772081, at *28 (N.D.N.Y. Sept. 29, 2025) (internal
brackets omitted) (quoting Lucente v. Cnty. of Suffolk, 980
F.3d 284, 297 (2d Cir. 2020)). A plaintiff can establish
the existence of an official policy or custom through “(1)
a formal policy endorsed by the municipality; (2) actions
directed by the government's authorized decisionmakers or
those who establish governmental policy; (3) a persistent
and widespread practice that amounts to a custom of which
policymakers must have been aware; or (4) a constitutional
violation resulting from policymakers’ failure to train
municipal employees.” Deferio v. City of Syracuse, 770
F. App'x 587, 589-90 (2d Cir. 2019) (internal quotations,
citations, and brackets omitted). Here, Magistrate Judge
Lovric recommended that Plaintiff's claims against Otsego
County, in which she alleges that Otsego County failed to train
or supervise Defendants Lincoln and Smith, be permitted to
proceed. Dkt. No. 5 at 9.
Fifth, Magistrate Judge Lovric addressed Plaintiff's claim
alleging a violation of Title II of the ADA. Id. at 9-11. 3
“To establish a violation of the ADA, the plaintiff must
demonstrate (1) that she is a ‘qualified individual’ with a
disability; (2) that the defendants are subject to the ADA; and
(3) that she was denied the opportunity to participate in or
benefit from the defendant's services, programs, or activities,
or was otherwise discriminated against by the defendant by
reason of her disability.” Id. at 10 (quoting Disabled in Action
v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97
(2d Cir. 2014)). Magistrate Judge Lovric found that Otsego
County is a public entity that is subject to the ADA, and
Plaintiff appeared to be a qualified individual with a disability
who plausibly alleged that Defendants Lincoln and Smith
wrongfully arrested her because Plaintiff's actions in response
to her disability were misinterpreted as criminal activity.
Id. Magistrate Judge Lovric noted that Plaintiff alleged that
Defendants Lincoln and Smith observed her in a disoriented
state, wearing her medical alert bracelet, and she informed
Defendants that she suffers from the risk of a TIA. Id. at
10-11. Accordingly, Magistrate Judge Lovric recommended
that Plaintiff's ADA claim be permitted to proceed against
Otsego County and Defendants Lincoln and Smith in their
official capacities. Id. at 11. 4
*4 Sixth, Magistrate Judge Lovric addressed Plaintiff's
claims pursuant to the New York State Andrew Kearse Act.
Id. at 11-12. Magistrate Judge Lovric noted that the New
York State Andrew Kearse Act is an unenacted New York
State Assembly Bill that imposes criminal liability for failure
to obtain medical care for a person in custody displaying
medical distress. Id. at 11. 5 Magistrate Judge Lovric further
noted that there is no private right of action to enforce federal
or state criminal statutes. See id. at 12 (citing, inter alia,
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). Thus,
Magistrate Judge Lovric recommended that this claim be
dismissed for failure to state a claim without leave to amend.
Having reviewed the Report-Recommendation for clear error
and considered Magistrate Judge Lovric's findings as to each
claim, the Court adopts the Report-Recommendation in its
entirety, except that it dismisses Plaintiff's false arrest and
deliberate indifference claims against Defendants Lincoln
and Smith in their official capacities with prejudice and
without leave to amend and permits Plaintiff's ADA claim to
proceed against Defendants Lincoln and Smith in their official
capacities only to the extent that Plaintiff seeks prospective
injunctive relief.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 5, is
ADOPTED in its entirety except as noted above; and the
Court further
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ORDERS that the Otsego County Sheriff's Office is
DISMISSED from this case with prejudice; and the Court
further
ORDERS that Plaintiff's claims pursuant to the New York
State Andrew Kearse Act be DISMISSED with prejudice
and without leave to amend; and the Court further
ORDERS that Plaintiff's claims of false arrest and deliberate
indifference against Otsego County and Defendants Lincoln
and Smith in their individual capacities SURVIVE initial
review and require a response; and the Court further
ORDERS that Plaintiff's false arrest and deliberate
indifference claims against Defendants Lincoln and Smith in
their official capacities be DISMISSED with prejudice and
without leave to amend; and the Court further
ORDERS that Plaintiff's ADA claim against Otsego County
SURVIVES initial review and requires a response; and the
Court further
ORDERS that Plaintiff's ADA claim against Defendants
Lincoln and Smith in their official capacities SURVIVES
initial review and requires a response to the extent that
Plaintiff seeks prospective injunctive relief under the ADA;
and the Court further
ORDERS that the Clerk shall issue summonses and General
Order # 25 and forward them, along with copies of the
Complaint, to the United States Marshal for service upon the
Defendants; and the Court further
ORDERS that all pleadings, motions and other documents
relating to this action must bear the case number assigned
to this action and be filed with the Clerk of the United
States District Court. Plaintiff must comply with requests by
the Clerk's Office for any documents that are necessary to
maintain this action. All parties must comply with Local Rule
7.1 of the Norther District of New York in filing motions;
motions will be decided on submitted papers, without oral
argument, unless otherwise ordered by the Court. Plaintiff is
also required to promptly notify the Clerk's Office and all
parties or their counsel, in writing, of any changes in his
address; his failure to do so may result in the dismissal of this
action.
*5 ORDERS that the Clerk serve a copy of this Order on
Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2959467
Footnotes
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system.
2 To the extent that Plaintiff brings her false arrest and deliberate indifference claims against Defendants
Lincoln and Smith in their official capacities, “this District has held that [Section 1983] claims against municipal
officers in their official capacities are really claims against the municipality and, thus, are redundant when
the municipality is also named as a defendant.” Sears v. Carmichael, No. 18-cv-909, 2018 WL 7291417, at
*2 (N.D.N.Y. Aug. 6, 2018) (internal citations and quotations omitted), report and recommendation adopted,
2019 WL 587587 (N.D.N.Y. Feb. 13, 2019). Since Plaintiff also names Otsego County as a defendant in
this action, Plaintiff's Section 1983 claims against Defendants Lincoln and Smith in their official capacities
are redundant of her claims against Otsego County. See, e.g., id. (recommending dismissal of plaintiff's
Monell claims against the individual defendants in their official capacities as “redundant,” given that plaintiff
also named the town of Saranac Lake as a defendant). Accordingly, Plaintiff's false arrest and deliberate
indifference claims against Defendants Lincoln and Smith in their official capacities are dismissed with
prejudice and without leave to amend.
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3 Magistrate Judge Lovric recommended that Plaintiff's ADA claim proceed against Defendants Lincoln and
Smith only in their official capacities because Title II of the ADA does not permit individual capacity suits
against state officials. Dkt. No. 5 at 11 n.6 (quoting Hill v. LaClair, No. 20-cv-441, 2020 WL 2404771, at *7
(N.D.N.Y. May 11, 2020)).
4 To the extent that Plaintiff's ADA claim against Defendants Lincoln and Smith in their official capacities seeks
prospective injunctive relief, such claim may proceed. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(holding that Title II ADA suits for prospective injunctive relief may proceed against individual officers in
their official capacities). However, Plaintiff's ADA claim against Defendants Lincoln and Smith in their official
capacities seeking monetary relief is redundant of Plaintiff's ADA claim against Otsego County. See Johnson
v. New York State Police, 659 F. Supp. 3d 237, 254 (N.D.N.Y. 2023). Accordingly, Plaintiff's ADA claim is
permitted to proceed against Defendants Lincoln and Smith in their official capacities only to the extent it
seeks prospective injunctive relief.
5 As of October 16, 2025, the New York State Andrew Kearse Act is in committee with the New York
State Assembly. See New York State Senate, Assembly Bill A1745, https://www.nysenate.gov/legislation/
bills/2021/A1745.
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2017 WL 5891817
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
ARTEC CONSTRUCTION AND
DEVELOPMENT CORP., Plaintiff,
v.
CITY OF NEW YORK, Defendant.
15 Civ. 9494 (KPF)
|
Signed 11/28/2017
Attorneys and Law Firms
Jamie Aron Forman, Bedell & Forman, LLP, New York, NY,
for Plaintiff.
Jenna Lynn Krueger, New York City Law Department, New
York, NY, for Defendant.
OPINION AND ORDER
KATHERINE POLK FAILLA, United States District Judge
*1 In June 2015, after a criminal investigation into
its conduct, Plaintiff Artec Construction and Development
Corporation (“Artec”) pleaded guilty to a felony charge
of falsifying business records. For several years prior to
that plea, Plaintiff contends, various agencies of Defendant
City of New York—including the Department of Housing
Preservation and Development (“HPD”) and the Department
of Investigation (“DOI”)—treated Plaintiff differently from
other general contractors in the award of city-sponsored
housing projects. Plaintiff argues that this disparity in
treatment amounted to an equal protection violation, and now
seeks redress pursuant to 42 U.S.C. § 1983.
The Court briefly addressed Plaintiff's allegations when
presented with the first motion to dismiss, filed by then-
Defendants HPD and DOI. In light of Plaintiff's proposed
amendments to its pleading, the Court denied that motion and
left for a later day an evaluation of the merits of Plaintiff's
allegations. See Artec Constr. & Dev. Corp. v. N.Y.C. Dep't
of Hous. Pres. & Dev., No. 15 Civ. 9494 (KPF), 2017 WL
782911 (S.D.N.Y. Feb. 27, 2017) (“Artec I”). That day has
come: Plaintiff filed its Second Amended Complaint on
February 28, 2017, and Defendant argues, again, that Plaintiff
has failed to plead a plausible constitutional violation or
municipal liability for any such violation. For the reasons set
forth in this Opinion, Defendant is correct, and its motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
granted.
BACKGROUND 1
A. Factual Background
For purposes of the instant motion, all well-pleaded
allegations in the Second Amended Complaint are taken as
true. Plaintiff is a contractor that builds affordable housing
in New York City, in part through contracts administered by
HPD. (SAC ¶ 1). Plaintiff has served as the general contractor
for at least six HPD-administered projects. (Id. at ¶ 7). 2
Of note, these contracts are subject to the Davis-Bacon Act
of 1931, which is codified at 40 U.S.C. §§ 3141-3148 and
which, along with related statutes, requires contractors and
subcontractors on public works projects to pay laborers the
local prevailing wages (the “Prevailing Wage Laws”).
In or about May 2011, the United Brotherhood of
Carpenters and Joiners (the “UBC”), an influential trade
union, “commenced an aggressive public information
campaign against [Plaintiff] alleging that [Plaintiff] and its
subcontractors failed to pay the area standard wages to their
employees and violated the Prevailing Wage Laws.” (SAC
¶ 9). The UBC conducted this so-called “smear campaign”
through social media, the local press, and “emails and letters
to government officials, power players and others involved
in the New York City affordable housing industry[.]” (Id. at
¶¶ 10-11). A full-page ad ran in the newspaper City Hall,
asking, “HPD: Why are you perpetuating these irresponsible
contractors?” (Id. at ¶ 12). Similarly, the UBC accused
HPD of enabling Plaintiff's wage violations by “failing to
affirmatively collect certified payrolls and withhold contract
payments as required by the law.” (Id. at ¶ 11).
*2 According to Plaintiff, these allegations gave HPD “an
axe to grind with [Plaintiff].” (SAC ¶ 14). In consequence,
in or about late June 2011, Doug Apple, then-First Deputy
Commissioner of HPD, informed Plaintiff's owner, Chris
Tsetsekas, of HPD's decision to prohibit Plaintiff from acting
as general contractor on a public housing project known as
the West Wind project, located at 45 East 131st Street. (Id.
at ¶ 14). While not explicit in his reasoning, Apple intimated
that the prohibition was in response to the UBC's accusations
against Plaintiff and, in turn, that Plaintiff could resume
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working on HPD projects “[w]hen the dust settle[d].” (Id. at
¶ 15).
In the following months, Plaintiff made amends with the
UBC, which then agreed to “fully support [Plaintiff's] efforts
to get new HPD-related projects.” (SAC ¶ 16). Plaintiff
informed HPD about its agreement with the UBC, but by
that time DOI was investigating possible violations of the
Prevailing Wage Laws by Plaintiff and its subcontractors.
(Id. at ¶¶ 17, 20). Plaintiff reached out to James Tierney, the
DOI Inspector General, to ask for a meeting with DOI “to
learn the basis of the investigation and to figure out how it
could begin to take on new City-related construction projects
again”; eventually, Plaintiff secured a meeting with a DOI
investigator. (Id. at ¶¶ 21, 23). Plaintiff complains that DOI
was “anything but forthcoming” and would not reveal the
details of its investigation—even as it sought to question
Tsetsekas about Plaintiff's oversight of subcontractors. (Id. at
¶ 23). DOI denied, however, that it directed HPD to reject
Plaintiff's applications to work on HPD-funded projects. (Id.).
On September 14, 2012, HPD placed Plaintiff on “Enhanced
Review status” because of Plaintiff's “$1,689,262.79 in
prevailing wage violations.” (SAC ¶ 24). Kimberly
Hardy, HPD's Special Counsel for Regulatory Compliance,
insinuated that this decision was prompted by DOI. (Id. at
¶ 25). And by March 2013, Plaintiff learned that DOI was
working with the United States Attorney's Office for the
Eastern District of New York (the “EDNY”) on a criminal
investigation into Plaintiff's alleged Prevailing Wage Law
violations. (Id. at ¶ 26).
Plaintiff came to understand that the EDNY “had no interest”
in bringing a case against it, and hoped that this disinterest
would put an end to the investigation. (SAC ¶ 28). Instead,
however, Michael Carroll, the DOI Deputy Commissioner
and Chief of Investigations, teamed up with the New York
County District Attorney's Office (“DANY”). (Id. at ¶¶
28-29). Thereafter, DOI demanded that Plaintiff pay the
allegedly unpaid wages, require Tsetsekas to sit for a proffer
session with DOI and DANY, and cooperate with DOI
in future investigations of the construction industry. (Id.).
Plaintiff refused, and now alleges that DOI “made sure
[Plaintiff] would be forever barred from performing work on
City-related construction projects.” (Id. at ¶ 30).
In sum, Plaintiff alleges that Apple and Hardy of HPD, and
Carroll and Tierney of DOI, were “policymakers” by virtue
of their inclusion on the New York City Policymaker List
that the New York City Conflicts of Interest Board issues
annually pursuant to the New York City Charter. (SAC ¶¶
31-35). Plaintiff further alleges that, in their capacity as
policymakers, Apple and Hardy precluded Plaintiff from
working on HPD projects and placed Plaintiff on Enhanced
Review, while Carroll and Tierney singled out Plaintiff
for a criminal investigation, and effected a “de facto
debarment” from working on HPD projects. (Id. at ¶¶
33-35). Specifically, Plaintiff alleges that HPD barred it
from working as the general contractor on seven projects
—identified as the West Wind, Cypress Hill, Sugar Hill,
East Clarke Place, Alembic/Cypress, Alembic/Broadway, and
West 53rd Street projects—that were collectively valued at
$171,000,000. (Id. at ¶¶ 47-64). Plaintiff further alleges that,
during the same time period, HPD permitted seven developers
—Mountco Construction & Development Inc. (“Mountco”),
Galaxy General Contracting (“Galaxy”), Lettire Construction
Corporation (“Lettire”), Procida Construction Corporation
(“Procida”), Lemle & Wolff Construction Corporation
(“Lemle & Wolff”), Mega Contracting (“Mega”), and
MDG Design (“MDG”)—to continue working on affordable
housing projects, even though they, too, had been placed
on Enhanced Review status by HPD because of suspected
Prevailing Wage Law violations and had worked with the
same problematic subcontractors. (Id. at ¶¶ 37-46). To
compensate for this unequal treatment, Plaintiff seeks an
award of $171,000,000. (Id. at ¶ 80).
B. Procedural Background
*3 This case was removed from New York State Supreme
Court, New York County, on December 4, 2015. (Dkt. #1).
As noted above, HPD and DOI previously moved to dismiss
Plaintiff's First Amended Complaint (Dkt. #22); the Court
denied that motion and granted Plaintiff leave to replead,
Artec I, 2017 WL 782911, at *5-6. Plaintiff filed its SAC on
February 28, 2017 (Dkt. #33), and the parties appeared for
a pre-motion conference on March 22, 2017 (see Dkt. #34).
Defendant moved to dismiss the SAC on April 28, 2017 (Dkt.
#35), Plaintiff filed its opposition on May 26, 2017 (Dkt. #38),
and Defendant filed its reply in further support of its motion
on June 11, 2017 (Dkt. #39).
DISCUSSION
A. Applicable Law
1. Motions to Dismiss Under Rule 12(b)(6)
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When evaluating the sufficiency of a pleading under Rule
12(b)(6), a court must accept all well-pleaded allegations as
true and must make all reasonable inferences in favor of the
plaintiff. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
This obligation does not apply, however, to legal conclusions
couched as factual allegations. Id. at 72. “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). But a
complaint need not meet a “probability requirement,” and a
plaintiff's claim can proceed even if it appears that success on
the merits is unlikely. Id. (quoting Iqbal, 556 U.S. at 678).
2. Consideration of Documents Outside the Pleadings
Defendant has submitted with its briefing copies of Plaintiff's
Plea Agreement with DANY, dated June 16, 2015, in which
Plaintiff pleaded guilty to one count of Falsifying Business
Records in the First Degree, in violation of New York Penal
Law § 175.10 (Krueger Decl., Ex. C); a Superior Court
Information in the matter People v. Artec Construction &
Development Corporation, Case No. SCI-02139-2015, dated
February 2, 2016 (id.); and a Certificate of Disposition in
the same matter, dated January 7, 2016 (id. at Ex. D).
While the Second Amended Complaint speaks at length
about the unconstitutionality of the DOI and DANY criminal
investigation, it omits mention of Plaintiff's concomitant plea
and conviction.
Typically, when deciding a motion to dismiss, a court may
consider “facts alleged in the complaint, documents attached
to the complaint as exhibits, and documents incorporated by
reference in the complaint,” along with documents so heavily
relied upon that they are integral to the complaint. DiFolco
v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010);
see generally Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d
Cir. 2016) (discussing documents that may be considered
in resolving a motion pursuant to Fed. R. Civ. P. 12(b)
(6)). Defendant encourages the Court to take judicial notice
of Plaintiff's guilty plea and conviction. (Def. Br. 6). And,
indeed, a court may take judicial notice of convictions that
are a matter of public record. Shmueli v. City of N.Y., 424 F.3d
231, 233 (2d Cir. 2005). The Court thus considers the fact of
Plaintiff's guilty plea and felony conviction, though it does not
rely on the Plea Agreement, Superior Court Information, or
Certificate of Disposition for the truth of the matters asserted
therein. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (“If
the court takes judicial notice, it does so in order to determine
what statements they contained—but again not for the truth
of the matters asserted.” (internal quotation marks omitted)).
3. The Equal Protection Clause
Plaintiff pursues two theories of violation of the Equal
Protection Clause, known as “selective enforcement” and
“class of one.” By way of background, the Equal Protection
Clause is a mandate that all state governments—including
administrative agencies—treat all similarly situated people
alike. See Engquist v. Oregon Dep't of Agr., 553 U.S. 591,
597 (2008); City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985). “Although the prototypical equal
protection claim involves discrimination against people based
on their membership in a vulnerable class, [courts] have long
recognized that the equal protection guarantee also extends
to individuals who allege no specific class membership but
are nonetheless subjected to invidious discrimination at the
hands of government officials.” Artec I, 2017 WL 782911, at
*2 (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d
494, 499 (2d Cir. 2001) (alteration in original)).
*4 A plaintiff who does not allege any protected class
affiliation can, nonetheless, demonstrate an equal protection
violation where the plaintiff shows that he or she was
treated differently from similarly situated individuals in
circumstances where there was no rational basis for the
difference in treatment (“class of one”), or where the different
treatment was based on a malicious or bad-faith intent to
injure (“selective enforcement”). See Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per curiam) (describing
“class of one” standard); LeClair v. Saunders, 627 F.2d 606,
609-10 (2d Cir. 1980) (describing “selective enforcement”
standard); see generally Bizzarro v. Miranda, 394 F.3d 82,
86-89 (2d Cir. 2005) (discussing both theories of liability).
With respect to a “class of one” claim, the Supreme
Court has recognized “a crucial difference, with respect to
constitutional analysis, between the government exercising
the power to regulate or license, as lawmaker, and the
government acting as proprietor, to manage [its] internal
operation.” Engquist, 553 U.S. at 598 (internal quotation
marks and citation omitted) (alteration in original). This
is because governmental entities must, at times, engage
in “discretionary decisionmaking based on a vast array of
subjective, individualized assessments” in which “treating
like individuals differently is an accepted consequence of
the discretion granted.” Id. at 603. For such cases, generally
speaking, equal protection claims are not viable.
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Though Engquist was decided in the public employment
context, the Second Circuit has recognized that “there may
be some circumstances where Engquist is properly applied
outside of the employment context,” while making clear
that “Engquist does not bar all class-of-one claims involving
discretionary state action.” Analytical Diagnostic Labs, Inc. v.
Kusel, 626 F.3d 135, 142 (2d Cir. 2010). As this Court noted in
Artec I, “class of one” claims are more likely to fall within the
Engquist bar when they challenge actions in the Government's
role as a proprietor, managing its internal operations. Artec I,
2017 WL 782911, at *3. 3
4. Municipal Liability
Finally, to hold a municipality such as Defendant liable for
the alleged constitutional violations, Plaintiff “is required
to plead and prove three elements: [i] an official policy or
custom that [ii] causes the plaintiff to be subjected to [iii] a
denial of a constitutional right.” Wray v. City of N.Y., 490 F.3d
189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir. 1983)). This is because a municipality
is only liable for actions that flow from a “policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.” Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
A “single act of a municipal policymaker, i.e., a person with
the authority to set municipal policy, can constitute official
policy, and thus, can give rise to municipal liability.” Santos
v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012)
(citing Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986)).
Authority to set municipal policy resides in “the official
or officials responsible for establishing final policy with
respect to the subject matter in question.” Pembaur, 475 U.S.
at 483 (citation omitted). “[W]hether an official had final
policymaking authority is a question of state law.” Id.; see
also Fierro v. N.Y.C. Dep't of Educ., 994 F. Supp. 2d 581, 588
(S.D.N.Y. 2014).
B. Analysis
1. Plaintiff's Suit Is Not Barred by Heck
*5 Defendant first argues that to the extent Plaintiff's
equal protection claims are based on the propriety of DOI's
investigation, those claims amount to an attack on the validity
of Plaintiff's criminal conviction, and, as such, are barred by
the Supreme Court's decision in Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). (Def. Br. 7). The Supreme Court in Heck
held that a plaintiff cannot challenge a criminal conviction
under § 1983 unless the conviction “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.” Heck, 512 U.S. at 486-87. This is often called
the “favorable termination” requirement. Poventud v. City of
N.Y., 750 F.3d 121, 130 (2d Cir. 2014) (en banc).
Neither party argues that Plaintiff's conviction has been
vacated or otherwise invalidated. Plaintiff sources its claim,
however, in an exception to the Heck bar recognized by the
Second Circuit, which exception permits § 1983 claims to
proceed where the plaintiff is no longer in state custody and
does not have any available habeas remedy. (Pl. Opp. 2-3
(citing Leather v. Ten Eyck, 180 F.3d 420, 424 (2d Cir. 1999))).
See also Huang v. Johnson, 251 F.3d 65, 73-75 (2d Cir. 2001)
(permitting a § 1983 claim to proceed where Plaintiff was
released from custody and could not pursue habeas relief).
Defendant is correct that the precise contours of the Heck
bar are not “definitively settled” in the Second Circuit, see
Teichmann v. New York, 769 F.3d 821, 827-31 (2d Cir. 2014),
but its related argument that Heck applies to convictions
secured through a guilty plea is inapposite. (Def. Reply 9).
It matters not how the conviction was entered; what matters
for the Heck analysis is whether the plaintiff has any recourse
in a writ of habeas corpus. See, e.g., Huang, 251 F.3d at
73-74 (declining to apply the Heck bar to a § 1983 action
filed by a plaintiff who pleaded guilty and was no longer in
custody). And although the application of Heck to a § 1983
claim where a habeas remedy is unavailable continues to
cause “consternation” in this Circuit, Teichmann, 769 F.3d
at 828 (Calabresi, J., concurring), Plaintiff's case is a clear
one. Even after the en banc narrowing of the Heck bar
in Poventud, this Circuit still recognizes an exception to
the favorable termination requirement where a plaintiff, like
Artec, was never in state custody, “that is, where an action
under § 1983 was a diligent plaintiff's only opportunity to
challenge his conviction in a federal forum.” Id. (Livingston,
J., concurring).
The Plea Agreement between Plaintiff and DANY imposed
a fine; because Plaintiff is a corporate entity, Plaintiff was
not sentenced to any term of imprisonment. (Krueger Decl.,
Ex. D). And because Plaintiff was never, and is not now, in
state custody, Plaintiff could never challenge the propriety of
its conviction through a petition for a writ of habeas corpus.
Accordingly, Plaintiff may bring a claim under § 1983.
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2. Plaintiff's Claim That the City Enacted a De Facto
Debarment Is Timely
Claims brought under § 1983 must be made within three
years of when the plaintiff “knows or has reason to know
of the harm.” Eagleston v. Guido, 41 F.3d 865, 871 (2d
Cir. 1994) (internal quotation marks omitted). From this,
Defendant argues that Plaintiff's claim based on an alleged
de facto debarment from HPD projects is time-barred, insofar
as it accrued before November 9, 2012—three years before
the initial complaint in this action was filed in state court.
(Def. Br. 9-11). This argument, in turn, is predicated on
Plaintiff's allegation in the SAC that responsibility for the
alleged debarment shifted “at some unknown point in 2012”
from HPD to DOI, because “HPD was no longer running the
show.” (SAC ¶ 34; see also Def. Br. 10).
*6 Defendant's argument splits hairs. The initial Complaint
in this matter named HPD and DOI as defendants, but,
following the Court's February 27, 2017 Order (Dkt. #32),
Plaintiff amended its pleading to name the proper entity, i.e.,
the City of New York (Dkt. #33). Thus, for purposes of the
instant motion, the Court evaluates liability as to the City
generally, rather than as to HPD or DOI individually. As long
as Plaintiff can show that its claim of a de facto debarment as
to Defendant accrued after November 9, 2012, its § 1983 on
those facts is timely.
Plaintiff argues that its claim for a de facto debarment did
not accrue until after November 2012. (Pl. Opp. 23-24). In
so doing, Plaintiff seizes upon Defendant's acknowledgement
that “[d]enial of a single contract or project is insufficient
to allege a de facto debarment.” (Id. (quoting Def. Br. 11)).
Indeed, Plaintiff alleges, by November 9, 2012, it was only
aware of one HPD project—the West Wind project—from
which it had been barred. (SAC ¶ 48). It was only in December
2012 that Plaintiff was barred from three more HPD projects
—Cypress Hill, Sugar Hill, and East Clarke Place—and in
early 2013 from two more—Alembic/Cypress and Alembic/
Broadway. (Id.).
The Court agrees with both parties that a denial of a single
contract does not a de facto debarment make. See Quadrozzi
Concrete Corp. v. City of N.Y., No. 03 Civ. 1905 (LAP),
2004 WL 2222164, at *7 (S.D.N.Y. Sept. 30, 2004); Housing
Works, Inc. v. City of N.Y., 680 N.Y.S.2d 487, 492 (1st Dep't
1998). Accordingly, the Court finds that Plaintiff did not know
or have reason to know of the alleged de facto debarment until
after November 9, 2012, which renders its de facto debarment
claim timely.
3. The Merits of Plaintiff's Equal Protection Claims
Plaintiff claims that Defendant treated it differently compared
to similarly situated affordable housing developers because
Plaintiff was (i) placed on HPD's Enhanced Review
list, (ii) subjected to a de facto debarment from HPD
projects, and (iii) subjected to a criminal investigation.
(SAC ¶¶ 33-35). In support of its equal protection claims,
Plaintiff proffers evidence of seven comparable contractors
—Mountco, Galaxy, Lettire, Procida, Lemle & Wolff, Mega,
and MDG (together, the “Comparators”)—all of which were
on HPD's Enhanced Review list but were permitted to
continue working on HPD affordable housing projects and
were not subjected to criminal investigation or prosecution.
(Id. at ¶¶ 38-44).
Before turning to Plaintiff's “class of one” and “selective
enforcement” claims, the Court observes at the outset that
Plaintiff cannot recover under either theory for its claim that
placement on the HPD Enhanced Review list constituted an
equal protection violation. (See SAC ¶ 33). 4 After all, both
“class of one” and “selective enforcement” claims require
proof that the plaintiff was treated differently from similarly
situated comparators. Bizzarro, 394 F.3d at 86. Each of the
seven Comparators was also placed on the Enhanced Review
list, and thus was treated in the same way as Plaintiff. (SAC
at ¶¶ 38-44). Accordingly, the Court limits its analysis to
Plaintiff's claims that Defendant impermissibly enacted a de
facto debarment and participated in a criminal investigation
of Plaintiff.
a. Claims Based on a Class of One Theory
*7 To prevail on a “class of one” claim, Plaintiff must
show that it was treated differently than similarly situated
comparators and that there was no rational basis for the
different treatment. Vill. of Willowbrook, 528 U.S. at 564.
Specifically, Plaintiff must establish that “(i) no rational
person could regard the circumstances of the plaintiff to
differ from those of a comparator to a degree that would
justify the differential treatment on the basis of a legitimate
government policy; and (ii) the similarity in the circumstances
and difference in treatment are sufficient to exclude the
possibility that the defendants acted on the basis of a mistake.”
Kusel, 626 F.3d at 140 (internal quotation marks and citation
omitted).
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Defendant raises what the parties agree is an issue of first
impression in this Circuit: whether the Supreme Court's
decision in Engquist—which eliminated “class of one” claims
for government employees—should be extended to bar claims
like Plaintiff's that are raised in the government contract
approval context. (Def. Br. 18-19; Pl. Opp. 12). Because the
degree and type of government discretion used is central to an
analysis of whether Engquist bars Plaintiff's claims, the Court
takes each alleged government action in turn, looking first
at Plaintiff's claim that Defendant effectively barred it from
working on HPD-funded projects and second at Plaintiff's
allegation that Defendant impermissibly singled Plaintiff out
for criminal investigation and prosecution.
i. De Facto Debarment
Defendant argues that “when HPD approves contractors for
the projects it funds, just like with procuring contactors
for City contracts, it is acting only as a proprietor and
manager, not as a regulator” and that, importantly, “HPD
wields virtually unfettered discretion over the selection
process.” (Def. Br. 19). Defendant further notes that “HPD
must rely upon many subjective decisions by agency experts
to optimize the use of taxpayer-funded loans” and “could
not function as a lender or mortgagor if every subjective
assessment were subject to constitutional review.” (Id. at 20).
In opposition, Plaintiff makes much of the Second Circuit's
holding in Kusel that “Engquist does not bar all class-of-
one claims involving discretionary state action.” (Pl. Opp.
12 (quoting Kusel, 626 F.3d at 142)). Plaintiff argues that
its claim should not be barred by Engquist because “HPD
is essentially acting as a regulator/lawmaker by adopting
regulations to govern the treatment of private contractors who
desire to perform work on privately negotiated contracts.” (Id.
at 13). Moreover, Plaintiff contends, Defendant acted
pursuant to a de facto standard in its treatment of contractors
placed on Enhanced Review for suspected Prevailing Wage
Law violations—a standard that permitted those developers
to continue working on HPD projects—which HPD violated
when it barred Plaintiff from further work. (Id. at 14-15).
Because Defendant's actions were governed by this standard,
they “were not discretionary enough to bar [Plaintiff's] ‘class
of one’ claim.” (Id. at 15). 5
*8 The Engquist Court was, at base, uneasy about imposing
constitutional liability for “forms of state action ... which
by their nature involve discretionary decisionmaking based
on a vast array of subjective, individualized assessments,”
and found that this concern “applies most clearly in the
employment context.” Engquist, 553 U.S. at 603. Presumably
for this reason, the Court was careful to confine its holding to
that context, id. at 607, and provided little guidance on how
it might be extended. It is not surprising, then, that Courts of
Appeals have split on this question. See Kusel, 626 F.3d at
141-42 (describing circuit split).
While the Second Circuit conceded in Kusel that “there may
be some circumstances where Engquist is properly applied
outside of the employment context,” it spoke disapprovingly
of certain district courts' attempts to extend the Engquist
bar. Kusel, 626 F.3d at 141 (“Several district courts in this
Circuit have extended Engquist’s holding to require that
plaintiffs seeking to establish a class-of-one claim must show
the difference in treatment flowed from non-discretionary
action, but they have done so without persuasive analysis.”).
By contrast, the Kusel Court found the reasoning in Alfaro
v. Labrador persuasive, which reasoning asked whether the
government action at issue “involve[s] discretion that is
actually exercised on a day-to-day basis” or if the action
is “theoretically discretionary but—as a practical matter—
actually depend[s] on de facto standards.” Id. (citing Alfaro
v. Labrador, No. 06 Civ. 1470 (JS), 2009 WL 2525128, at *9
(E.D.N.Y. Aug. 14, 2009)). Decisions in the latter category,
both courts agreed, were more likely to survive Engquist. Id.
Defendant argues that its discretion in deciding whether to
permit a contractor to work on an HPD-funded project falls
into the former “day-to-day” category. HPD issues loans
to fund affordable housing construction and, as part of its
lending role, “manage[s] the administration of these projects
in order to ensure the quality of this public service.” (Def.
Br. 19). One way in which Defendant “manages” this process
is by “approving contractors for private contracts receiving
loans.” (Id.).
Defendant may select a contractor for an HPD-funded project
by “any method permitted by Law which [HPD] determines
will best meet the Project's objectives and the City Housing
Goals, including, but not limited to, direct negotiation,
[Requests for Qualifications], [Requests for Proposals],
competitive bidding, public bidding, auction, selection by
entities other than [HPD], and application.” 28 R.C.N.Y. §
33-03(a). And, as Defendant notes, HPD can “disapprove any
contractor or subcontractor because of previous violations
of statutes, rules or regulations relating to discrimination,
standards of employment or labor standards, or because of
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inefficiency, abandonment of duties, or disregard for creditors
on prior jobs performed under this Program or other programs
of the City.” Id. § 2-06(a)(3). (See Def. Br. 20). The Rules
further provide that HPD “may reject any Applicant ... at any
time and for any reason” including if HPD determines “at
any time that good and sufficient reasons exist why the City
should not do business with an Applicant ... or should not
allow such Applicant ... to act as Sponsor for a Project,” while
making clear that the “Rules are not intended to confer rights
or benefits upon the general public or upon any individual or
entity.” Id. §§ 33-08(a)(1), 33-08(d). 6 Finally, HPD retains
the right to pull funding or change the Sponsor of a project
“at any time prior to the execution of a Binding Agreement.”
Id. § 33-08(e).
*9 Defendant's discretion to approve applicants for HPD-
funded projects is, thus, nearly unfettered. More to the point,
HPD's power to choose which contractors will work on
its projects is far more discretionary than the process that
gave the Second Circuit pause in Kusel. There, a clinical
testing lab complained that the New York State Department of
Health (“DOH”) subjected it to “an intense and unwarranted
degree of regulatory scrutiny.” Kusel, 626 F.3d at 137. DOH
investigated the lab numerous times over a period of several
years and “refused to renew [its] operating permit.” Id. at
138. Critical to the Court's analysis was the fact that “DOH
[did] not possess unfettered discretion in deciding whether to
revoke, suspend or otherwise limit an existing license”; DOH
could not revoke a license without a hearing, and the decision
could be challenged in an Article 78 proceeding. Id. at 142;
see N.Y. C.P.L.R. § 7801. In sharp contrast, HPD possesses
the ability to choose contractors through whatever process
it deems best and can elect not to work with a contractor
if it determines, in its discretion, that the City should not
do business with that entity. The Rules of the City of New
York do not require HPD to explain its choices, do not grant
contractors the right to a given project, and do not afford due
process in the event of a rejection or removal. See generally
28 R.C.N.Y. §§ 33-03, 33-08. Plainly, Defendant has broad
discretion to approve or disapprove an applicant for an HPD-
funded project.
Significantly, however, the analysis does not end there. As
Judge Seybert noted in Alfaro—and as the Second Circuit
found instructive in Kusel—government decisionmaking that
is “theoretically discretionary” can “as a practical matter [ ]
actually depend on de facto standards.” Alfaro, 2009 WL
2525128, at *9; see also Kusel, 626 F.3d at 141. For purposes
of this motion, the Court must accept as true Plaintiff's
allegation that Defendant employed what was, effectively, a
“consistent pattern and practice” of allowing contractors on
the Enhanced Review list to continue to work on HPD-funded
projects. Alfaro, 2009 WL 2525128, at *9. (See SAC ¶¶
38-44; Pl. Opp. 15). And where the government acts pursuant
to a standard, even where it is not obligated to do so, its
decisionmaking implicates the equal protection obligation to
treat “all persons similarly situated ... alike.” City of Cleburne,
473 U.S. at 439.
In light of Plaintiff's policy allegations and the Second
Circuit's decision in Kusel, the Court must conclude at this
stage of the litigation that the decisionmaking process at
issue is not so discretionary as to trigger the Engquist bar.
Accordingly, the Court may consider the merits of Plaintiff's
claim that Defendant's de facto debarment put Plaintiff in an
impermissible “class of one.” But while Plaintiff overcomes
this first hurdle, it falls at the second.
On the facts alleged in the SAC, the Court cannot find a
basis for a “class of one” claim regarding Defendant's de
facto debarment. To be sure, the SAC pleads sufficient facts
to show that Plaintiff was the only one of the Comparators
to be denied participation in HPD-funded projects while
being on Enhanced Review for suspected Prevailing Wage
Law violations. (See SAC ¶¶ 37-44). But also according to
the SAC, none of the Comparators was being investigated
for possible criminal conduct. (See id.). Given this rather
significant difference, the Court cannot say that Plaintiff
alleges the “extremely high degree of similarity” between
Plaintiff and the Comparators that is required to prevail on
a “class of one” claim. Clubside, Inc. v. Valentin, 468 F.3d
144,159 (2d Cir. 2006).
Even assuming, for purposes of this motion, that Plaintiff
were sufficiently situated to the Comparators, its claim still
fails because it cannot prove that there is no rational basis
for Defendant's actions. Plaintiff asserts that Defendant's
actions were “irrational” (SAC ¶ 77), but the Court does not
agree. 7 As Defendant notes, its decision to deny Plaintiff
work on HPD-funded contracts was reasonably related to
a legitimate government interest in ensuring that “workers
on HPD projects receive prevailing wages.” (Def. Br. 21).
Plaintiff concedes Defendant's interest in enforcing fair wage
laws, but claims nonetheless that there was no rational basis
to bar Plaintiff from HPD-funded contracts while allowing
other contractors that were suspected of similar violations,
because “there is nothing here to suggest that [Plaintiff's]
alleged prevailing wage violations were more severe than the
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Comparators['][.]” (Pl. Opp. 11). But, of course, there was
reason to single out Plaintiff: According to the SAC, none
of the Comparators was being investigated by DOI—first
with the EDNY and subsequently with DANY—for possible
criminal conduct. (SAC ¶¶ 26, 28-29, 38-44).
*10 Plaintiff lost its first HPD contract in June 2011, lost
three more in December 2012, and lost two more in early
2013. (SAC ¶¶ 51, 53, 55, 57, 59, 61). Plaintiff became aware
of DOI's investigation in January 2012 (id. at ¶ 20), and
learned that the investigation was criminal in nature in March
2013 (id. at ¶ 26). On these facts, Defendant's decision to bar
Plaintiff from HPD-funded projects during the pendency of an
investigation is rationally related to a legitimate government
interest. In sum, Plaintiff has failed to plead sufficient facts
that, taken as true, show that “no rational person could regard
the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy.”
Kusel, 626 F.3d at 140 (citing Neilson v. D'Angelis, 409 F.3d
100, 104 (2d Cir. 2005), abrogated on other grounds by Appel
v. Spiridon, 531 F.3d 138 (2d Cir. 2008)). On these facts, its
“class of one” claim cannot stand.
ii. The Criminal Investigation
The Court considers next whether Plaintiff's “class of
one” claim based on Defendant's participation in criminal
investigations into Plaintiff's alleged wage violations is barred
by Engquist and concludes that it is. The decisionmaking
applied by a prosecutor deciding which violations to
investigate and what cases to bring is the type of “day-
to-day” government discretion that a “class of one” claim
cannot properly redress. See Vested Bus. Brokers Ltd. v.
Cty. of Suffolk, No. 16 Civ. 4945 (JMA) (SIL), 2017 WL
4122616, at *7 (E.D.N.Y. Sept. 15, 2017) (“[T]o the extent
that [plaintiff] is challenging [defendant's] investigation and
subsequent decision not to make an arrest, the actions and
decisions taken are discretionary, and not subject to a ‘class
of one’ claim.”); Alfaro, 2009 WL 2525128, at *9 (“[W]here
a law is selectively enforced (without clear standards for
enforcement) against some people but not others, a class of
one claim inappropriately interferes with the discretionary
decision making process that a law enforcement officer or
body must engage in.”); see also United States v. Armstrong,
517 U.S. 456, 464 (1996) (“In the ordinary case, so long as
the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether
or not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion.”); United
States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (applying
the Engquist bar to a case challenging prosecutorial discretion
because “the discretion conferred on prosecutors in choosing
whom and how to prosecute is flatly inconsistent with a
presumption of uniform treatment”).
While the Second Circuit clarified in Kusel that “Engquist
does not bar all class-of-one claims involving discretionary
state action,” 626 F.3d at 142, it could not have been that
Court's intention to hold that door ajar for a claim like
Plaintiff's, which would grant a constitutional “class of one”
claim to every target of a criminal investigation and every
defendant in a criminal prosecution. The day-to-day work
of a prosecutor necessarily involves the selection of certain
individuals to investigate and charge—this is the very type of
government discretion that the Supreme Court removed from
equal protection review in Engquist. Accordingly, the Court
holds that Plaintiff's claim that Defendant placed it in a “class
of one” through participation in criminal investigations of it
is barred under Engquist, and the Court will not consider the
merits of this claim.
b. Claims Based on a Selective Enforcement Theory
Alternatively, Plaintiff complains that Defendant's de
facto debarment of Plaintiff from HPD-funded projects
and criminal investigation of Plaintiff effected equal
protection violations on a theory of impermissible “selective
enforcement.” (SAC ¶¶ 33, 35, 70-74). To plead a viable
selective enforcement claim, Plaintiff must establish that
“[i] compared with others similarly situated, [Plaintiff] was
selectively treated; and [ii] that such selective treatment was
based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights,
or malicious bad faith intent to injure a person.” LaTrieste
Rest. & Cabaret, Inc. v. Vill. of Port Chester, 40 F.3d 587, 590
(2d Cir. 1994). The Second Circuit has not settled the question
of whether the degree of similarity required to prevail in a
“selective enforcement claim” is less than that needed for
a “class of one” claim, but, in any event, Plaintiff must at
least show that Plaintiff and the Comparators are “similarly
situated in all material respects.” Mosdos Chofetz Chaim,
Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 695-96
(S.D.N.Y. 2011) (discussing the varying standards applied
and collecting cases).
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*11 The Court accepts as true that Plaintiff was treated
differently than the Comparators, insofar as Plaintiff was the
only one of the group to be denied HPD-funded contracts and
subjected to a criminal investigation. (SAC ¶¶ 36-64). But
the Court need not accept as true Plaintiff's legal conclusions
that it was similarly situated to the Comparators or that
Defendant acted out of malice. See Iqbal, 556 U.S. at 678.
Defendant argues that Plaintiff has not pleaded sufficient
facts to show that it is similarly situated to the Comparators.
(Def. Br. 13 (“[T]he SAC is silent regarding whether the
purported [C]omparators were on Enhanced Review status at
the time that HPD approved them to work on projects; when,
if ever, they were removed from Enhanced Review; and if
so, under what conditions.”)). Plaintiff weakly responds that
it cannot substantiate this claim until it receives discovery
from Defendant. (Pl. Opp. 7, 16). Even assuming that, with
the benefit of discovery, Plaintiff could show the required
degree of similarity, its “selective enforcement” claim would
still fail, as the SAC does not contain sufficient allegations
that Defendant acted with a malicious intent to injure.
The crux of Plaintiff's claim is that Defendant had
an “axe to grind” with Plaintiff following the UBC's
“smear campaign” (SAC ¶¶ 13-14), resulting in Defendant
vindictively barring Plaintiff from HPD-funded contracts
and putting Plaintiff through a criminal investigation (Pl.
Opp. 16-19). Plaintiff contends that this vindictive singling-
out “evidences irrationality and demonstrates bad faith or
malice.” (Id. at 19). But in so arguing, Plaintiff conflates
the two-prong test for “selective enforcement.” Plaintiff must
show that it was treated differently than those similarly
situated and that the different treatment was due to a malicious
purpose. LaTrieste Rest. & Cabaret, Inc., 40 F.3d at 590.
Plaintiff would have this Court find that different treatment is
itself proof of a malicious purpose. It is not.
There is nothing in the SAC, save Plaintiff's conclusory
assertion that Defendant harbored a grudge because of the
UBC's campaign, to support a finding that Defendant barred
plaintiff from HPD projects or investigated Plaintiff with a
malicious intent. Plaintiff's unsupported allegation does not
“nudge[ ] [Plaintiff's] claims across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. What is more, the
Court finds compelling Defendant's argument that a plausible,
non-discriminatory reason for Defendant's decision to deny
Plaintiff work on HPD-funded projects is readily apparent
—namely, that Plaintiff, unlike the Comparators, was being
investigated for possible criminal violations. And for the
reasons stated above with respect to Plaintiff's “class of
one” claim, the Court will not second-guess the discretion
of the DOI and the prosecutors' offices that investigated
Plaintiff under a “selective enforcement” theory without any
suggestion in the pleadings of bad faith.
As set forth above, Plaintiff has not adequately pleaded
any underlying constitutional violations under § 1983.
Accordingly, the Court need not reach the question of
whether Plaintiff's allegations establish municipal liability
under Monell. See Segal v. City of N.Y., 459 F.3d 207, 219
(2d Cir. 2000) (“Because the district court properly found no
underlying constitutional violation, its decision not to address
the municipal defendants' liability under Monell was entirely
correct.”).
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is
GRANTED. The Clerk of Court is directed to terminate all
pending motions, adjourn all remaining dates, and close this
case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 5891817
Footnotes
1 This Opinion draws principally from the Second Amended Complaint (“SAC,” Dkt. #33) and, for reasons
explained below, from certain facts and documents of which judicial notice can be taken. For convenience,
the Court refers to Defendant's moving brief (Dkt. #37) as “Def. Br.”; to Plaintiff's brief in opposition (Dkt.
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#38) as “Pl. Opp.”; and to Defendant's reply brief (Dkt. #39) as “Def. Reply.” The Declaration of Jenna
Krueger in Support of the Motion to Dismiss (Dkt. #36) is referred to as “Krueger Decl.”
2 Plaintiff does not specify when it was awarded these six contracts; Plaintiff simply says it had these contracts
“[d]uring the relevant time period.” (SAC ¶ 7).
3 Engquist did not discuss claims for selective enforcement and the Second Circuit has not yet addressed
the question of whether Engquist’s holding can be extended to such claims. See Emmerling v. Town of
Richmond, 434 Fed.Appx. 10, 12 (2d Cir. 2011) (summary order).
4 The Court understands the SAC to raise a claim that Plaintiff was improperly placed on the Enhanced Review
list. (SAC ¶ 33). In its briefing, Plaintiff appears to build on a passing reference in the SAC to Defendant's
refusal to remove Plaintiff from the Enhanced Review list with the goal of expanding its claim to include an
allegation that Defendant improperly kept Plaintiff on the Enhanced Review list. (Id. at ¶ 46; Pl. Opp. 9).
To the extent that Plaintiff seeks to raise such a claim, the Court finds it has not been adequately pleaded
in the SAC and that, even if it had, it would fail on the merits for the same reasons discussed in the text.
5 Plaintiff also analogizes the government action in Kusel—which, that Court held, was not so discretionary as
to trigger the Engquist bar—to the decision to place Plaintiff on the HPD Enhanced Review list, and Plaintiff
argues that the Court should permit that claim to proceed. (Pl. Opp. 12-13). Defendant counters that this
analogy in fact misreads the opening brief, in which Defendant argues that Engquist bars Plaintiff's claim
that Defendant impermissibly disallowed Plaintiff from working on various HPD-funded projects. (Def. Reply
5). The Court agrees, but for a different reason. As noted above, Plaintiff cannot recover on a “class of one”
theory for its claim that Defendant improperly placed it on the Enhanced Review list because Plaintiff is in
a class of, at least, eight. Shatney v. LaPorte, 634 Fed.Appx. 53, 54 (2d Cir. 2016) (summary order) (“[A]
plaintiff who is in a ‘class of one’ may bring an equal-protection claim ‘where the plaintiff alleges she has
been intentionally treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.’ ” (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam))).
Because the SAC alleges that Plaintiff was treated identically to the Comparators in its placement on HPD's
Enhanced Review list, this allegation cannot form the basis for any recovery, and the Court will not probe
Defendant's decision to place Plaintiff on Enhanced Review.
6 “Applicant” is defined as “any potential Sponsor of a Project, without regard to the method used by the Agency
to select the Sponsor for such Project, including, but not limited to, any person or entity which has submitted
or might potentially submit a qualification statement, proposal, bid, application, or other submission.” 28
R.C.N.Y. § 33-01(a)(4).
“Sponsor” is defined as “an Applicant or Selected Applicant, or an entity formed by an Applicant or Selected
Applicant and approved by the Agency, which has executed one or more Binding Agreement(s) with the
Agency.” 28 R.C.N.Y. § 33-01(a)(31).
7 Several of the parties' rational basis arguments center on the propriety of Plaintiff's placement on the
Enhanced Review list. (Def Br. 20-21; Pl. Opp. 8-9). As noted throughout this Opinion, the Court will not
consider these arguments.
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2017 WL 5891817
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
ARTEC CONSTRUCTION AND
DEVELOPMENT CORP., Plaintiff,
v.
CITY OF NEW YORK, Defendant.
15 Civ. 9494 (KPF)
|
Signed 11/28/2017
Attorneys and Law Firms
Jamie Aron Forman, Bedell & Forman, LLP, New York, NY,
for Plaintiff.
Jenna Lynn Krueger, New York City Law Department, New
York, NY, for Defendant.
OPINION AND ORDER
KATHERINE POLK FAILLA, United States District Judge
*1 In June 2015, after a criminal investigation into
its conduct, Plaintiff Artec Construction and Development
Corporation (“Artec”) pleaded guilty to a felony charge
of falsifying business records. For several years prior to
that plea, Plaintiff contends, various agencies of Defendant
City of New York—including the Department of Housing
Preservation and Development (“HPD”) and the Department
of Investigation (“DOI”)—treated Plaintiff differently from
other general contractors in the award of city-sponsored
housing projects. Plaintiff argues that this disparity in
treatment amounted to an equal protection violation, and now
seeks redress pursuant to 42 U.S.C. § 1983.
The Court briefly addressed Plaintiff's allegations when
presented with the first motion to dismiss, filed by then-
Defendants HPD and DOI. In light of Plaintiff's proposed
amendments to its pleading, the Court denied that motion and
left for a later day an evaluation of the merits of Plaintiff's
allegations. See Artec Constr. & Dev. Corp. v. N.Y.C. Dep't
of Hous. Pres. & Dev., No. 15 Civ. 9494 (KPF), 2017 WL
782911 (S.D.N.Y. Feb. 27, 2017) (“Artec I”). That day has
come: Plaintiff filed its Second Amended Complaint on
February 28, 2017, and Defendant argues, again, that Plaintiff
has failed to plead a plausible constitutional violation or
municipal liability for any such violation. For the reasons set
forth in this Opinion, Defendant is correct, and its motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
granted.
BACKGROUND 1
A. Factual Background
For purposes of the instant motion, all well-pleaded
allegations in the Second Amended Complaint are taken as
true. Plaintiff is a contractor that builds affordable housing
in New York City, in part through contracts administered by
HPD. (SAC ¶ 1). Plaintiff has served as the general contractor
for at least six HPD-administered projects. (Id. at ¶ 7). 2
Of note, these contracts are subject to the Davis-Bacon Act
of 1931, which is codified at 40 U.S.C. §§ 3141-3148 and
which, along with related statutes, requires contractors and
subcontractors on public works projects to pay laborers the
local prevailing wages (the “Prevailing Wage Laws”).
In or about May 2011, the United Brotherhood of
Carpenters and Joiners (the “UBC”), an influential trade
union, “commenced an aggressive public information
campaign against [Plaintiff] alleging that [Plaintiff] and its
subcontractors failed to pay the area standard wages to their
employees and violated the Prevailing Wage Laws.” (SAC
¶ 9). The UBC conducted this so-called “smear campaign”
through social media, the local press, and “emails and letters
to government officials, power players and others involved
in the New York City affordable housing industry[.]” (Id. at
¶¶ 10-11). A full-page ad ran in the newspaper City Hall,
asking, “HPD: Why are you perpetuating these irresponsible
contractors?” (Id. at ¶ 12). Similarly, the UBC accused
HPD of enabling Plaintiff's wage violations by “failing to
affirmatively collect certified payrolls and withhold contract
payments as required by the law.” (Id. at ¶ 11).
*2 According to Plaintiff, these allegations gave HPD “an
axe to grind with [Plaintiff].” (SAC ¶ 14). In consequence,
in or about late June 2011, Doug Apple, then-First Deputy
Commissioner of HPD, informed Plaintiff's owner, Chris
Tsetsekas, of HPD's decision to prohibit Plaintiff from acting
as general contractor on a public housing project known as
the West Wind project, located at 45 East 131st Street. (Id.
at ¶ 14). While not explicit in his reasoning, Apple intimated
that the prohibition was in response to the UBC's accusations
against Plaintiff and, in turn, that Plaintiff could resume
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working on HPD projects “[w]hen the dust settle[d].” (Id. at
¶ 15).
In the following months, Plaintiff made amends with the
UBC, which then agreed to “fully support [Plaintiff's] efforts
to get new HPD-related projects.” (SAC ¶ 16). Plaintiff
informed HPD about its agreement with the UBC, but by
that time DOI was investigating possible violations of the
Prevailing Wage Laws by Plaintiff and its subcontractors.
(Id. at ¶¶ 17, 20). Plaintiff reached out to James Tierney, the
DOI Inspector General, to ask for a meeting with DOI “to
learn the basis of the investigation and to figure out how it
could begin to take on new City-related construction projects
again”; eventually, Plaintiff secured a meeting with a DOI
investigator. (Id. at ¶¶ 21, 23). Plaintiff complains that DOI
was “anything but forthcoming” and would not reveal the
details of its investigation—even as it sought to question
Tsetsekas about Plaintiff's oversight of subcontractors. (Id. at
¶ 23). DOI denied, however, that it directed HPD to reject
Plaintiff's applications to work on HPD-funded projects. (Id.).
On September 14, 2012, HPD placed Plaintiff on “Enhanced
Review status” because of Plaintiff's “$1,689,262.79 in
prevailing wage violations.” (SAC ¶ 24). Kimberly
Hardy, HPD's Special Counsel for Regulatory Compliance,
insinuated that this decision was prompted by DOI. (Id. at
¶ 25). And by March 2013, Plaintiff learned that DOI was
working with the United States Attorney's Office for the
Eastern District of New York (the “EDNY”) on a criminal
investigation into Plaintiff's alleged Prevailing Wage Law
violations. (Id. at ¶ 26).
Plaintiff came to understand that the EDNY “had no interest”
in bringing a case against it, and hoped that this disinterest
would put an end to the investigation. (SAC ¶ 28). Instead,
however, Michael Carroll, the DOI Deputy Commissioner
and Chief of Investigations, teamed up with the New York
County District Attorney's Office (“DANY”). (Id. at ¶¶
28-29). Thereafter, DOI demanded that Plaintiff pay the
allegedly unpaid wages, require Tsetsekas to sit for a proffer
session with DOI and DANY, and cooperate with DOI
in future investigations of the construction industry. (Id.).
Plaintiff refused, and now alleges that DOI “made sure
[Plaintiff] would be forever barred from performing work on
City-related construction projects.” (Id. at ¶ 30).
In sum, Plaintiff alleges that Apple and Hardy of HPD, and
Carroll and Tierney of DOI, were “policymakers” by virtue
of their inclusion on the New York City Policymaker List
that the New York City Conflicts of Interest Board issues
annually pursuant to the New York City Charter. (SAC ¶¶
31-35). Plaintiff further alleges that, in their capacity as
policymakers, Apple and Hardy precluded Plaintiff from
working on HPD projects and placed Plaintiff on Enhanced
Review, while Carroll and Tierney singled out Plaintiff
for a criminal investigation, and effected a “de facto
debarment” from working on HPD projects. (Id. at ¶¶
33-35). Specifically, Plaintiff alleges that HPD barred it
from working as the general contractor on seven projects
—identified as the West Wind, Cypress Hill, Sugar Hill,
East Clarke Place, Alembic/Cypress, Alembic/Broadway, and
West 53rd Street projects—that were collectively valued at
$171,000,000. (Id. at ¶¶ 47-64). Plaintiff further alleges that,
during the same time period, HPD permitted seven developers
—Mountco Construction & Development Inc. (“Mountco”),
Galaxy General Contracting (“Galaxy”), Lettire Construction
Corporation (“Lettire”), Procida Construction Corporation
(“Procida”), Lemle & Wolff Construction Corporation
(“Lemle & Wolff”), Mega Contracting (“Mega”), and
MDG Design (“MDG”)—to continue working on affordable
housing projects, even though they, too, had been placed
on Enhanced Review status by HPD because of suspected
Prevailing Wage Law violations and had worked with the
same problematic subcontractors. (Id. at ¶¶ 37-46). To
compensate for this unequal treatment, Plaintiff seeks an
award of $171,000,000. (Id. at ¶ 80).
B. Procedural Background
*3 This case was removed from New York State Supreme
Court, New York County, on December 4, 2015. (Dkt. #1).
As noted above, HPD and DOI previously moved to dismiss
Plaintiff's First Amended Complaint (Dkt. #22); the Court
denied that motion and granted Plaintiff leave to replead,
Artec I, 2017 WL 782911, at *5-6. Plaintiff filed its SAC on
February 28, 2017 (Dkt. #33), and the parties appeared for
a pre-motion conference on March 22, 2017 (see Dkt. #34).
Defendant moved to dismiss the SAC on April 28, 2017 (Dkt.
#35), Plaintiff filed its opposition on May 26, 2017 (Dkt. #38),
and Defendant filed its reply in further support of its motion
on June 11, 2017 (Dkt. #39).
DISCUSSION
A. Applicable Law
1. Motions to Dismiss Under Rule 12(b)(6)
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When evaluating the sufficiency of a pleading under Rule
12(b)(6), a court must accept all well-pleaded allegations as
true and must make all reasonable inferences in favor of the
plaintiff. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
This obligation does not apply, however, to legal conclusions
couched as factual allegations. Id. at 72. “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). But a
complaint need not meet a “probability requirement,” and a
plaintiff's claim can proceed even if it appears that success on
the merits is unlikely. Id. (quoting Iqbal, 556 U.S. at 678).
2. Consideration of Documents Outside the Pleadings
Defendant has submitted with its briefing copies of Plaintiff's
Plea Agreement with DANY, dated June 16, 2015, in which
Plaintiff pleaded guilty to one count of Falsifying Business
Records in the First Degree, in violation of New York Penal
Law § 175.10 (Krueger Decl., Ex. C); a Superior Court
Information in the matter People v. Artec Construction &
Development Corporation, Case No. SCI-02139-2015, dated
February 2, 2016 (id.); and a Certificate of Disposition in
the same matter, dated January 7, 2016 (id. at Ex. D).
While the Second Amended Complaint speaks at length
about the unconstitutionality of the DOI and DANY criminal
investigation, it omits mention of Plaintiff's concomitant plea
and conviction.
Typically, when deciding a motion to dismiss, a court may
consider “facts alleged in the complaint, documents attached
to the complaint as exhibits, and documents incorporated by
reference in the complaint,” along with documents so heavily
relied upon that they are integral to the complaint. DiFolco
v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010);
see generally Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d
Cir. 2016) (discussing documents that may be considered
in resolving a motion pursuant to Fed. R. Civ. P. 12(b)
(6)). Defendant encourages the Court to take judicial notice
of Plaintiff's guilty plea and conviction. (Def. Br. 6). And,
indeed, a court may take judicial notice of convictions that
are a matter of public record. Shmueli v. City of N.Y., 424 F.3d
231, 233 (2d Cir. 2005). The Court thus considers the fact of
Plaintiff's guilty plea and felony conviction, though it does not
rely on the Plea Agreement, Superior Court Information, or
Certificate of Disposition for the truth of the matters asserted
therein. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (“If
the court takes judicial notice, it does so in order to determine
what statements they contained—but again not for the truth
of the matters asserted.” (internal quotation marks omitted)).
3. The Equal Protection Clause
Plaintiff pursues two theories of violation of the Equal
Protection Clause, known as “selective enforcement” and
“class of one.” By way of background, the Equal Protection
Clause is a mandate that all state governments—including
administrative agencies—treat all similarly situated people
alike. See Engquist v. Oregon Dep't of Agr., 553 U.S. 591,
597 (2008); City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985). “Although the prototypical equal
protection claim involves discrimination against people based
on their membership in a vulnerable class, [courts] have long
recognized that the equal protection guarantee also extends
to individuals who allege no specific class membership but
are nonetheless subjected to invidious discrimination at the
hands of government officials.” Artec I, 2017 WL 782911, at
*2 (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d
494, 499 (2d Cir. 2001) (alteration in original)).
*4 A plaintiff who does not allege any protected class
affiliation can, nonetheless, demonstrate an equal protection
violation where the plaintiff shows that he or she was
treated differently from similarly situated individuals in
circumstances where there was no rational basis for the
difference in treatment (“class of one”), or where the different
treatment was based on a malicious or bad-faith intent to
injure (“selective enforcement”). See Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per curiam) (describing
“class of one” standard); LeClair v. Saunders, 627 F.2d 606,
609-10 (2d Cir. 1980) (describing “selective enforcement”
standard); see generally Bizzarro v. Miranda, 394 F.3d 82,
86-89 (2d Cir. 2005) (discussing both theories of liability).
With respect to a “class of one” claim, the Supreme
Court has recognized “a crucial difference, with respect to
constitutional analysis, between the government exercising
the power to regulate or license, as lawmaker, and the
government acting as proprietor, to manage [its] internal
operation.” Engquist, 553 U.S. at 598 (internal quotation
marks and citation omitted) (alteration in original). This
is because governmental entities must, at times, engage
in “discretionary decisionmaking based on a vast array of
subjective, individualized assessments” in which “treating
like individuals differently is an accepted consequence of
the discretion granted.” Id. at 603. For such cases, generally
speaking, equal protection claims are not viable.
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Though Engquist was decided in the public employment
context, the Second Circuit has recognized that “there may
be some circumstances where Engquist is properly applied
outside of the employment context,” while making clear
that “Engquist does not bar all class-of-one claims involving
discretionary state action.” Analytical Diagnostic Labs, Inc. v.
Kusel, 626 F.3d 135, 142 (2d Cir. 2010). As this Court noted in
Artec I, “class of one” claims are more likely to fall within the
Engquist bar when they challenge actions in the Government's
role as a proprietor, managing its internal operations. Artec I,
2017 WL 782911, at *3. 3
4. Municipal Liability
Finally, to hold a municipality such as Defendant liable for
the alleged constitutional violations, Plaintiff “is required
to plead and prove three elements: [i] an official policy or
custom that [ii] causes the plaintiff to be subjected to [iii] a
denial of a constitutional right.” Wray v. City of N.Y., 490 F.3d
189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir. 1983)). This is because a municipality
is only liable for actions that flow from a “policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.” Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
A “single act of a municipal policymaker, i.e., a person with
the authority to set municipal policy, can constitute official
policy, and thus, can give rise to municipal liability.” Santos
v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012)
(citing Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986)).
Authority to set municipal policy resides in “the official
or officials responsible for establishing final policy with
respect to the subject matter in question.” Pembaur, 475 U.S.
at 483 (citation omitted). “[W]hether an official had final
policymaking authority is a question of state law.” Id.; see
also Fierro v. N.Y.C. Dep't of Educ., 994 F. Supp. 2d 581, 588
(S.D.N.Y. 2014).
B. Analysis
1. Plaintiff's Suit Is Not Barred by Heck
*5 Defendant first argues that to the extent Plaintiff's
equal protection claims are based on the propriety of DOI's
investigation, those claims amount to an attack on the validity
of Plaintiff's criminal conviction, and, as such, are barred by
the Supreme Court's decision in Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). (Def. Br. 7). The Supreme Court in Heck
held that a plaintiff cannot challenge a criminal conviction
under § 1983 unless the conviction “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.” Heck, 512 U.S. at 486-87. This is often called
the “favorable termination” requirement. Poventud v. City of
N.Y., 750 F.3d 121, 130 (2d Cir. 2014) (en banc).
Neither party argues that Plaintiff's conviction has been
vacated or otherwise invalidated. Plaintiff sources its claim,
however, in an exception to the Heck bar recognized by the
Second Circuit, which exception permits § 1983 claims to
proceed where the plaintiff is no longer in state custody and
does not have any available habeas remedy. (Pl. Opp. 2-3
(citing Leather v. Ten Eyck, 180 F.3d 420, 424 (2d Cir. 1999))).
See also Huang v. Johnson, 251 F.3d 65, 73-75 (2d Cir. 2001)
(permitting a § 1983 claim to proceed where Plaintiff was
released from custody and could not pursue habeas relief).
Defendant is correct that the precise contours of the Heck
bar are not “definitively settled” in the Second Circuit, see
Teichmann v. New York, 769 F.3d 821, 827-31 (2d Cir. 2014),
but its related argument that Heck applies to convictions
secured through a guilty plea is inapposite. (Def. Reply 9).
It matters not how the conviction was entered; what matters
for the Heck analysis is whether the plaintiff has any recourse
in a writ of habeas corpus. See, e.g., Huang, 251 F.3d at
73-74 (declining to apply the Heck bar to a § 1983 action
filed by a plaintiff who pleaded guilty and was no longer in
custody). And although the application of Heck to a § 1983
claim where a habeas remedy is unavailable continues to
cause “consternation” in this Circuit, Teichmann, 769 F.3d
at 828 (Calabresi, J., concurring), Plaintiff's case is a clear
one. Even after the en banc narrowing of the Heck bar
in Poventud, this Circuit still recognizes an exception to
the favorable termination requirement where a plaintiff, like
Artec, was never in state custody, “that is, where an action
under § 1983 was a diligent plaintiff's only opportunity to
challenge his conviction in a federal forum.” Id. (Livingston,
J., concurring).
The Plea Agreement between Plaintiff and DANY imposed
a fine; because Plaintiff is a corporate entity, Plaintiff was
not sentenced to any term of imprisonment. (Krueger Decl.,
Ex. D). And because Plaintiff was never, and is not now, in
state custody, Plaintiff could never challenge the propriety of
its conviction through a petition for a writ of habeas corpus.
Accordingly, Plaintiff may bring a claim under § 1983.
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2. Plaintiff's Claim That the City Enacted a De Facto
Debarment Is Timely
Claims brought under § 1983 must be made within three
years of when the plaintiff “knows or has reason to know
of the harm.” Eagleston v. Guido, 41 F.3d 865, 871 (2d
Cir. 1994) (internal quotation marks omitted). From this,
Defendant argues that Plaintiff's claim based on an alleged
de facto debarment from HPD projects is time-barred, insofar
as it accrued before November 9, 2012—three years before
the initial complaint in this action was filed in state court.
(Def. Br. 9-11). This argument, in turn, is predicated on
Plaintiff's allegation in the SAC that responsibility for the
alleged debarment shifted “at some unknown point in 2012”
from HPD to DOI, because “HPD was no longer running the
show.” (SAC ¶ 34; see also Def. Br. 10).
*6 Defendant's argument splits hairs. The initial Complaint
in this matter named HPD and DOI as defendants, but,
following the Court's February 27, 2017 Order (Dkt. #32),
Plaintiff amended its pleading to name the proper entity, i.e.,
the City of New York (Dkt. #33). Thus, for purposes of the
instant motion, the Court evaluates liability as to the City
generally, rather than as to HPD or DOI individually. As long
as Plaintiff can show that its claim of a de facto debarment as
to Defendant accrued after November 9, 2012, its § 1983 on
those facts is timely.
Plaintiff argues that its claim for a de facto debarment did
not accrue until after November 2012. (Pl. Opp. 23-24). In
so doing, Plaintiff seizes upon Defendant's acknowledgement
that “[d]enial of a single contract or project is insufficient
to allege a de facto debarment.” (Id. (quoting Def. Br. 11)).
Indeed, Plaintiff alleges, by November 9, 2012, it was only
aware of one HPD project—the West Wind project—from
which it had been barred. (SAC ¶ 48). It was only in December
2012 that Plaintiff was barred from three more HPD projects
—Cypress Hill, Sugar Hill, and East Clarke Place—and in
early 2013 from two more—Alembic/Cypress and Alembic/
Broadway. (Id.).
The Court agrees with both parties that a denial of a single
contract does not a de facto debarment make. See Quadrozzi
Concrete Corp. v. City of N.Y., No. 03 Civ. 1905 (LAP),
2004 WL 2222164, at *7 (S.D.N.Y. Sept. 30, 2004); Housing
Works, Inc. v. City of N.Y., 680 N.Y.S.2d 487, 492 (1st Dep't
1998). Accordingly, the Court finds that Plaintiff did not know
or have reason to know of the alleged de facto debarment until
after November 9, 2012, which renders its de facto debarment
claim timely.
3. The Merits of Plaintiff's Equal Protection Claims
Plaintiff claims that Defendant treated it differently compared
to similarly situated affordable housing developers because
Plaintiff was (i) placed on HPD's Enhanced Review
list, (ii) subjected to a de facto debarment from HPD
projects, and (iii) subjected to a criminal investigation.
(SAC ¶¶ 33-35). In support of its equal protection claims,
Plaintiff proffers evidence of seven comparable contractors
—Mountco, Galaxy, Lettire, Procida, Lemle & Wolff, Mega,
and MDG (together, the “Comparators”)—all of which were
on HPD's Enhanced Review list but were permitted to
continue working on HPD affordable housing projects and
were not subjected to criminal investigation or prosecution.
(Id. at ¶¶ 38-44).
Before turning to Plaintiff's “class of one” and “selective
enforcement” claims, the Court observes at the outset that
Plaintiff cannot recover under either theory for its claim that
placement on the HPD Enhanced Review list constituted an
equal protection violation. (See SAC ¶ 33). 4 After all, both
“class of one” and “selective enforcement” claims require
proof that the plaintiff was treated differently from similarly
situated comparators. Bizzarro, 394 F.3d at 86. Each of the
seven Comparators was also placed on the Enhanced Review
list, and thus was treated in the same way as Plaintiff. (SAC
at ¶¶ 38-44). Accordingly, the Court limits its analysis to
Plaintiff's claims that Defendant impermissibly enacted a de
facto debarment and participated in a criminal investigation
of Plaintiff.
a. Claims Based on a Class of One Theory
*7 To prevail on a “class of one” claim, Plaintiff must
show that it was treated differently than similarly situated
comparators and that there was no rational basis for the
different treatment. Vill. of Willowbrook, 528 U.S. at 564.
Specifically, Plaintiff must establish that “(i) no rational
person could regard the circumstances of the plaintiff to
differ from those of a comparator to a degree that would
justify the differential treatment on the basis of a legitimate
government policy; and (ii) the similarity in the circumstances
and difference in treatment are sufficient to exclude the
possibility that the defendants acted on the basis of a mistake.”
Kusel, 626 F.3d at 140 (internal quotation marks and citation
omitted).
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Defendant raises what the parties agree is an issue of first
impression in this Circuit: whether the Supreme Court's
decision in Engquist—which eliminated “class of one” claims
for government employees—should be extended to bar claims
like Plaintiff's that are raised in the government contract
approval context. (Def. Br. 18-19; Pl. Opp. 12). Because the
degree and type of government discretion used is central to an
analysis of whether Engquist bars Plaintiff's claims, the Court
takes each alleged government action in turn, looking first
at Plaintiff's claim that Defendant effectively barred it from
working on HPD-funded projects and second at Plaintiff's
allegation that Defendant impermissibly singled Plaintiff out
for criminal investigation and prosecution.
i. De Facto Debarment
Defendant argues that “when HPD approves contractors for
the projects it funds, just like with procuring contactors
for City contracts, it is acting only as a proprietor and
manager, not as a regulator” and that, importantly, “HPD
wields virtually unfettered discretion over the selection
process.” (Def. Br. 19). Defendant further notes that “HPD
must rely upon many subjective decisions by agency experts
to optimize the use of taxpayer-funded loans” and “could
not function as a lender or mortgagor if every subjective
assessment were subject to constitutional review.” (Id. at 20).
In opposition, Plaintiff makes much of the Second Circuit's
holding in Kusel that “Engquist does not bar all class-of-
one claims involving discretionary state action.” (Pl. Opp.
12 (quoting Kusel, 626 F.3d at 142)). Plaintiff argues that
its claim should not be barred by Engquist because “HPD
is essentially acting as a regulator/lawmaker by adopting
regulations to govern the treatment of private contractors who
desire to perform work on privately negotiated contracts.” (Id.
at 13). Moreover, Plaintiff contends, Defendant acted
pursuant to a de facto standard in its treatment of contractors
placed on Enhanced Review for suspected Prevailing Wage
Law violations—a standard that permitted those developers
to continue working on HPD projects—which HPD violated
when it barred Plaintiff from further work. (Id. at 14-15).
Because Defendant's actions were governed by this standard,
they “were not discretionary enough to bar [Plaintiff's] ‘class
of one’ claim.” (Id. at 15). 5
*8 The Engquist Court was, at base, uneasy about imposing
constitutional liability for “forms of state action ... which
by their nature involve discretionary decisionmaking based
on a vast array of subjective, individualized assessments,”
and found that this concern “applies most clearly in the
employment context.” Engquist, 553 U.S. at 603. Presumably
for this reason, the Court was careful to confine its holding to
that context, id. at 607, and provided little guidance on how
it might be extended. It is not surprising, then, that Courts of
Appeals have split on this question. See Kusel, 626 F.3d at
141-42 (describing circuit split).
While the Second Circuit conceded in Kusel that “there may
be some circumstances where Engquist is properly applied
outside of the employment context,” it spoke disapprovingly
of certain district courts' attempts to extend the Engquist
bar. Kusel, 626 F.3d at 141 (“Several district courts in this
Circuit have extended Engquist’s holding to require that
plaintiffs seeking to establish a class-of-one claim must show
the difference in treatment flowed from non-discretionary
action, but they have done so without persuasive analysis.”).
By contrast, the Kusel Court found the reasoning in Alfaro
v. Labrador persuasive, which reasoning asked whether the
government action at issue “involve[s] discretion that is
actually exercised on a day-to-day basis” or if the action
is “theoretically discretionary but—as a practical matter—
actually depend[s] on de facto standards.” Id. (citing Alfaro
v. Labrador, No. 06 Civ. 1470 (JS), 2009 WL 2525128, at *9
(E.D.N.Y. Aug. 14, 2009)). Decisions in the latter category,
both courts agreed, were more likely to survive Engquist. Id.
Defendant argues that its discretion in deciding whether to
permit a contractor to work on an HPD-funded project falls
into the former “day-to-day” category. HPD issues loans
to fund affordable housing construction and, as part of its
lending role, “manage[s] the administration of these projects
in order to ensure the quality of this public service.” (Def.
Br. 19). One way in which Defendant “manages” this process
is by “approving contractors for private contracts receiving
loans.” (Id.).
Defendant may select a contractor for an HPD-funded project
by “any method permitted by Law which [HPD] determines
will best meet the Project's objectives and the City Housing
Goals, including, but not limited to, direct negotiation,
[Requests for Qualifications], [Requests for Proposals],
competitive bidding, public bidding, auction, selection by
entities other than [HPD], and application.” 28 R.C.N.Y. §
33-03(a). And, as Defendant notes, HPD can “disapprove any
contractor or subcontractor because of previous violations
of statutes, rules or regulations relating to discrimination,
standards of employment or labor standards, or because of
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inefficiency, abandonment of duties, or disregard for creditors
on prior jobs performed under this Program or other programs
of the City.” Id. § 2-06(a)(3). (See Def. Br. 20). The Rules
further provide that HPD “may reject any Applicant ... at any
time and for any reason” including if HPD determines “at
any time that good and sufficient reasons exist why the City
should not do business with an Applicant ... or should not
allow such Applicant ... to act as Sponsor for a Project,” while
making clear that the “Rules are not intended to confer rights
or benefits upon the general public or upon any individual or
entity.” Id. §§ 33-08(a)(1), 33-08(d). 6 Finally, HPD retains
the right to pull funding or change the Sponsor of a project
“at any time prior to the execution of a Binding Agreement.”
Id. § 33-08(e).
*9 Defendant's discretion to approve applicants for HPD-
funded projects is, thus, nearly unfettered. More to the point,
HPD's power to choose which contractors will work on
its projects is far more discretionary than the process that
gave the Second Circuit pause in Kusel. There, a clinical
testing lab complained that the New York State Department of
Health (“DOH”) subjected it to “an intense and unwarranted
degree of regulatory scrutiny.” Kusel, 626 F.3d at 137. DOH
investigated the lab numerous times over a period of several
years and “refused to renew [its] operating permit.” Id. at
138. Critical to the Court's analysis was the fact that “DOH
[did] not possess unfettered discretion in deciding whether to
revoke, suspend or otherwise limit an existing license”; DOH
could not revoke a license without a hearing, and the decision
could be challenged in an Article 78 proceeding. Id. at 142;
see N.Y. C.P.L.R. § 7801. In sharp contrast, HPD possesses
the ability to choose contractors through whatever process
it deems best and can elect not to work with a contractor
if it determines, in its discretion, that the City should not
do business with that entity. The Rules of the City of New
York do not require HPD to explain its choices, do not grant
contractors the right to a given project, and do not afford due
process in the event of a rejection or removal. See generally
28 R.C.N.Y. §§ 33-03, 33-08. Plainly, Defendant has broad
discretion to approve or disapprove an applicant for an HPD-
funded project.
Significantly, however, the analysis does not end there. As
Judge Seybert noted in Alfaro—and as the Second Circuit
found instructive in Kusel—government decisionmaking that
is “theoretically discretionary” can “as a practical matter [ ]
actually depend on de facto standards.” Alfaro, 2009 WL
2525128, at *9; see also Kusel, 626 F.3d at 141. For purposes
of this motion, the Court must accept as true Plaintiff's
allegation that Defendant employed what was, effectively, a
“consistent pattern and practice” of allowing contractors on
the Enhanced Review list to continue to work on HPD-funded
projects. Alfaro, 2009 WL 2525128, at *9. (See SAC ¶¶
38-44; Pl. Opp. 15). And where the government acts pursuant
to a standard, even where it is not obligated to do so, its
decisionmaking implicates the equal protection obligation to
treat “all persons similarly situated ... alike.” City of Cleburne,
473 U.S. at 439.
In light of Plaintiff's policy allegations and the Second
Circuit's decision in Kusel, the Court must conclude at this
stage of the litigation that the decisionmaking process at
issue is not so discretionary as to trigger the Engquist bar.
Accordingly, the Court may consider the merits of Plaintiff's
claim that Defendant's de facto debarment put Plaintiff in an
impermissible “class of one.” But while Plaintiff overcomes
this first hurdle, it falls at the second.
On the facts alleged in the SAC, the Court cannot find a
basis for a “class of one” claim regarding Defendant's de
facto debarment. To be sure, the SAC pleads sufficient facts
to show that Plaintiff was the only one of the Comparators
to be denied participation in HPD-funded projects while
being on Enhanced Review for suspected Prevailing Wage
Law violations. (See SAC ¶¶ 37-44). But also according to
the SAC, none of the Comparators was being investigated
for possible criminal conduct. (See id.). Given this rather
significant difference, the Court cannot say that Plaintiff
alleges the “extremely high degree of similarity” between
Plaintiff and the Comparators that is required to prevail on
a “class of one” claim. Clubside, Inc. v. Valentin, 468 F.3d
144,159 (2d Cir. 2006).
Even assuming, for purposes of this motion, that Plaintiff
were sufficiently situated to the Comparators, its claim still
fails because it cannot prove that there is no rational basis
for Defendant's actions. Plaintiff asserts that Defendant's
actions were “irrational” (SAC ¶ 77), but the Court does not
agree. 7 As Defendant notes, its decision to deny Plaintiff
work on HPD-funded contracts was reasonably related to
a legitimate government interest in ensuring that “workers
on HPD projects receive prevailing wages.” (Def. Br. 21).
Plaintiff concedes Defendant's interest in enforcing fair wage
laws, but claims nonetheless that there was no rational basis
to bar Plaintiff from HPD-funded contracts while allowing
other contractors that were suspected of similar violations,
because “there is nothing here to suggest that [Plaintiff's]
alleged prevailing wage violations were more severe than the
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Comparators['][.]” (Pl. Opp. 11). But, of course, there was
reason to single out Plaintiff: According to the SAC, none
of the Comparators was being investigated by DOI—first
with the EDNY and subsequently with DANY—for possible
criminal conduct. (SAC ¶¶ 26, 28-29, 38-44).
*10 Plaintiff lost its first HPD contract in June 2011, lost
three more in December 2012, and lost two more in early
2013. (SAC ¶¶ 51, 53, 55, 57, 59, 61). Plaintiff became aware
of DOI's investigation in January 2012 (id. at ¶ 20), and
learned that the investigation was criminal in nature in March
2013 (id. at ¶ 26). On these facts, Defendant's decision to bar
Plaintiff from HPD-funded projects during the pendency of an
investigation is rationally related to a legitimate government
interest. In sum, Plaintiff has failed to plead sufficient facts
that, taken as true, show that “no rational person could regard
the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy.”
Kusel, 626 F.3d at 140 (citing Neilson v. D'Angelis, 409 F.3d
100, 104 (2d Cir. 2005), abrogated on other grounds by Appel
v. Spiridon, 531 F.3d 138 (2d Cir. 2008)). On these facts, its
“class of one” claim cannot stand.
ii. The Criminal Investigation
The Court considers next whether Plaintiff's “class of
one” claim based on Defendant's participation in criminal
investigations into Plaintiff's alleged wage violations is barred
by Engquist and concludes that it is. The decisionmaking
applied by a prosecutor deciding which violations to
investigate and what cases to bring is the type of “day-
to-day” government discretion that a “class of one” claim
cannot properly redress. See Vested Bus. Brokers Ltd. v.
Cty. of Suffolk, No. 16 Civ. 4945 (JMA) (SIL), 2017 WL
4122616, at *7 (E.D.N.Y. Sept. 15, 2017) (“[T]o the extent
that [plaintiff] is challenging [defendant's] investigation and
subsequent decision not to make an arrest, the actions and
decisions taken are discretionary, and not subject to a ‘class
of one’ claim.”); Alfaro, 2009 WL 2525128, at *9 (“[W]here
a law is selectively enforced (without clear standards for
enforcement) against some people but not others, a class of
one claim inappropriately interferes with the discretionary
decision making process that a law enforcement officer or
body must engage in.”); see also United States v. Armstrong,
517 U.S. 456, 464 (1996) (“In the ordinary case, so long as
the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether
or not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion.”); United
States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (applying
the Engquist bar to a case challenging prosecutorial discretion
because “the discretion conferred on prosecutors in choosing
whom and how to prosecute is flatly inconsistent with a
presumption of uniform treatment”).
While the Second Circuit clarified in Kusel that “Engquist
does not bar all class-of-one claims involving discretionary
state action,” 626 F.3d at 142, it could not have been that
Court's intention to hold that door ajar for a claim like
Plaintiff's, which would grant a constitutional “class of one”
claim to every target of a criminal investigation and every
defendant in a criminal prosecution. The day-to-day work
of a prosecutor necessarily involves the selection of certain
individuals to investigate and charge—this is the very type of
government discretion that the Supreme Court removed from
equal protection review in Engquist. Accordingly, the Court
holds that Plaintiff's claim that Defendant placed it in a “class
of one” through participation in criminal investigations of it
is barred under Engquist, and the Court will not consider the
merits of this claim.
b. Claims Based on a Selective Enforcement Theory
Alternatively, Plaintiff complains that Defendant's de
facto debarment of Plaintiff from HPD-funded projects
and criminal investigation of Plaintiff effected equal
protection violations on a theory of impermissible “selective
enforcement.” (SAC ¶¶ 33, 35, 70-74). To plead a viable
selective enforcement claim, Plaintiff must establish that
“[i] compared with others similarly situated, [Plaintiff] was
selectively treated; and [ii] that such selective treatment was
based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights,
or malicious bad faith intent to injure a person.” LaTrieste
Rest. & Cabaret, Inc. v. Vill. of Port Chester, 40 F.3d 587, 590
(2d Cir. 1994). The Second Circuit has not settled the question
of whether the degree of similarity required to prevail in a
“selective enforcement claim” is less than that needed for
a “class of one” claim, but, in any event, Plaintiff must at
least show that Plaintiff and the Comparators are “similarly
situated in all material respects.” Mosdos Chofetz Chaim,
Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 695-96
(S.D.N.Y. 2011) (discussing the varying standards applied
and collecting cases).
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*11 The Court accepts as true that Plaintiff was treated
differently than the Comparators, insofar as Plaintiff was the
only one of the group to be denied HPD-funded contracts and
subjected to a criminal investigation. (SAC ¶¶ 36-64). But
the Court need not accept as true Plaintiff's legal conclusions
that it was similarly situated to the Comparators or that
Defendant acted out of malice. See Iqbal, 556 U.S. at 678.
Defendant argues that Plaintiff has not pleaded sufficient
facts to show that it is similarly situated to the Comparators.
(Def. Br. 13 (“[T]he SAC is silent regarding whether the
purported [C]omparators were on Enhanced Review status at
the time that HPD approved them to work on projects; when,
if ever, they were removed from Enhanced Review; and if
so, under what conditions.”)). Plaintiff weakly responds that
it cannot substantiate this claim until it receives discovery
from Defendant. (Pl. Opp. 7, 16). Even assuming that, with
the benefit of discovery, Plaintiff could show the required
degree of similarity, its “selective enforcement” claim would
still fail, as the SAC does not contain sufficient allegations
that Defendant acted with a malicious intent to injure.
The crux of Plaintiff's claim is that Defendant had
an “axe to grind” with Plaintiff following the UBC's
“smear campaign” (SAC ¶¶ 13-14), resulting in Defendant
vindictively barring Plaintiff from HPD-funded contracts
and putting Plaintiff through a criminal investigation (Pl.
Opp. 16-19). Plaintiff contends that this vindictive singling-
out “evidences irrationality and demonstrates bad faith or
malice.” (Id. at 19). But in so arguing, Plaintiff conflates
the two-prong test for “selective enforcement.” Plaintiff must
show that it was treated differently than those similarly
situated and that the different treatment was due to a malicious
purpose. LaTrieste Rest. & Cabaret, Inc., 40 F.3d at 590.
Plaintiff would have this Court find that different treatment is
itself proof of a malicious purpose. It is not.
There is nothing in the SAC, save Plaintiff's conclusory
assertion that Defendant harbored a grudge because of the
UBC's campaign, to support a finding that Defendant barred
plaintiff from HPD projects or investigated Plaintiff with a
malicious intent. Plaintiff's unsupported allegation does not
“nudge[ ] [Plaintiff's] claims across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. What is more, the
Court finds compelling Defendant's argument that a plausible,
non-discriminatory reason for Defendant's decision to deny
Plaintiff work on HPD-funded projects is readily apparent
—namely, that Plaintiff, unlike the Comparators, was being
investigated for possible criminal violations. And for the
reasons stated above with respect to Plaintiff's “class of
one” claim, the Court will not second-guess the discretion
of the DOI and the prosecutors' offices that investigated
Plaintiff under a “selective enforcement” theory without any
suggestion in the pleadings of bad faith.
As set forth above, Plaintiff has not adequately pleaded
any underlying constitutional violations under § 1983.
Accordingly, the Court need not reach the question of
whether Plaintiff's allegations establish municipal liability
under Monell. See Segal v. City of N.Y., 459 F.3d 207, 219
(2d Cir. 2000) (“Because the district court properly found no
underlying constitutional violation, its decision not to address
the municipal defendants' liability under Monell was entirely
correct.”).
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is
GRANTED. The Clerk of Court is directed to terminate all
pending motions, adjourn all remaining dates, and close this
case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 5891817
Footnotes
1 This Opinion draws principally from the Second Amended Complaint (“SAC,” Dkt. #33) and, for reasons
explained below, from certain facts and documents of which judicial notice can be taken. For convenience,
the Court refers to Defendant's moving brief (Dkt. #37) as “Def. Br.”; to Plaintiff's brief in opposition (Dkt.
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#38) as “Pl. Opp.”; and to Defendant's reply brief (Dkt. #39) as “Def. Reply.” The Declaration of Jenna
Krueger in Support of the Motion to Dismiss (Dkt. #36) is referred to as “Krueger Decl.”
2 Plaintiff does not specify when it was awarded these six contracts; Plaintiff simply says it had these contracts
“[d]uring the relevant time period.” (SAC ¶ 7).
3 Engquist did not discuss claims for selective enforcement and the Second Circuit has not yet addressed
the question of whether Engquist’s holding can be extended to such claims. See Emmerling v. Town of
Richmond, 434 Fed.Appx. 10, 12 (2d Cir. 2011) (summary order).
4 The Court understands the SAC to raise a claim that Plaintiff was improperly placed on the Enhanced Review
list. (SAC ¶ 33). In its briefing, Plaintiff appears to build on a passing reference in the SAC to Defendant's
refusal to remove Plaintiff from the Enhanced Review list with the goal of expanding its claim to include an
allegation that Defendant improperly kept Plaintiff on the Enhanced Review list. (Id. at ¶ 46; Pl. Opp. 9).
To the extent that Plaintiff seeks to raise such a claim, the Court finds it has not been adequately pleaded
in the SAC and that, even if it had, it would fail on the merits for the same reasons discussed in the text.
5 Plaintiff also analogizes the government action in Kusel—which, that Court held, was not so discretionary as
to trigger the Engquist bar—to the decision to place Plaintiff on the HPD Enhanced Review list, and Plaintiff
argues that the Court should permit that claim to proceed. (Pl. Opp. 12-13). Defendant counters that this
analogy in fact misreads the opening brief, in which Defendant argues that Engquist bars Plaintiff's claim
that Defendant impermissibly disallowed Plaintiff from working on various HPD-funded projects. (Def. Reply
5). The Court agrees, but for a different reason. As noted above, Plaintiff cannot recover on a “class of one”
theory for its claim that Defendant improperly placed it on the Enhanced Review list because Plaintiff is in
a class of, at least, eight. Shatney v. LaPorte, 634 Fed.Appx. 53, 54 (2d Cir. 2016) (summary order) (“[A]
plaintiff who is in a ‘class of one’ may bring an equal-protection claim ‘where the plaintiff alleges she has
been intentionally treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.’ ” (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam))).
Because the SAC alleges that Plaintiff was treated identically to the Comparators in its placement on HPD's
Enhanced Review list, this allegation cannot form the basis for any recovery, and the Court will not probe
Defendant's decision to place Plaintiff on Enhanced Review.
6 “Applicant” is defined as “any potential Sponsor of a Project, without regard to the method used by the Agency
to select the Sponsor for such Project, including, but not limited to, any person or entity which has submitted
or might potentially submit a qualification statement, proposal, bid, application, or other submission.” 28
R.C.N.Y. § 33-01(a)(4).
“Sponsor” is defined as “an Applicant or Selected Applicant, or an entity formed by an Applicant or Selected
Applicant and approved by the Agency, which has executed one or more Binding Agreement(s) with the
Agency.” 28 R.C.N.Y. § 33-01(a)(31).
7 Several of the parties' rational basis arguments center on the propriety of Plaintiff's placement on the
Enhanced Review list. (Def Br. 20-21; Pl. Opp. 8-9). As noted throughout this Opinion, the Court will not
consider these arguments.
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2017 WL 5891817
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
ARTEC CONSTRUCTION AND
DEVELOPMENT CORP., Plaintiff,
v.
CITY OF NEW YORK, Defendant.
15 Civ. 9494 (KPF)
|
Signed 11/28/2017
Attorneys and Law Firms
Jamie Aron Forman, Bedell & Forman, LLP, New York, NY,
for Plaintiff.
Jenna Lynn Krueger, New York City Law Department, New
York, NY, for Defendant.
OPINION AND ORDER
KATHERINE POLK FAILLA, United States District Judge
*1 In June 2015, after a criminal investigation into
its conduct, Plaintiff Artec Construction and Development
Corporation (“Artec”) pleaded guilty to a felony charge
of falsifying business records. For several years prior to
that plea, Plaintiff contends, various agencies of Defendant
City of New York—including the Department of Housing
Preservation and Development (“HPD”) and the Department
of Investigation (“DOI”)—treated Plaintiff differently from
other general contractors in the award of city-sponsored
housing projects. Plaintiff argues that this disparity in
treatment amounted to an equal protection violation, and now
seeks redress pursuant to 42 U.S.C. § 1983.
The Court briefly addressed Plaintiff's allegations when
presented with the first motion to dismiss, filed by then-
Defendants HPD and DOI. In light of Plaintiff's proposed
amendments to its pleading, the Court denied that motion and
left for a later day an evaluation of the merits of Plaintiff's
allegations. See Artec Constr. & Dev. Corp. v. N.Y.C. Dep't
of Hous. Pres. & Dev., No. 15 Civ. 9494 (KPF), 2017 WL
782911 (S.D.N.Y. Feb. 27, 2017) (“Artec I”). That day has
come: Plaintiff filed its Second Amended Complaint on
February 28, 2017, and Defendant argues, again, that Plaintiff
has failed to plead a plausible constitutional violation or
municipal liability for any such violation. For the reasons set
forth in this Opinion, Defendant is correct, and its motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
granted.
BACKGROUND 1
A. Factual Background
For purposes of the instant motion, all well-pleaded
allegations in the Second Amended Complaint are taken as
true. Plaintiff is a contractor that builds affordable housing
in New York City, in part through contracts administered by
HPD. (SAC ¶ 1). Plaintiff has served as the general contractor
for at least six HPD-administered projects. (Id. at ¶ 7). 2
Of note, these contracts are subject to the Davis-Bacon Act
of 1931, which is codified at 40 U.S.C. §§ 3141-3148 and
which, along with related statutes, requires contractors and
subcontractors on public works projects to pay laborers the
local prevailing wages (the “Prevailing Wage Laws”).
In or about May 2011, the United Brotherhood of
Carpenters and Joiners (the “UBC”), an influential trade
union, “commenced an aggressive public information
campaign against [Plaintiff] alleging that [Plaintiff] and its
subcontractors failed to pay the area standard wages to their
employees and violated the Prevailing Wage Laws.” (SAC
¶ 9). The UBC conducted this so-called “smear campaign”
through social media, the local press, and “emails and letters
to government officials, power players and others involved
in the New York City affordable housing industry[.]” (Id. at
¶¶ 10-11). A full-page ad ran in the newspaper City Hall,
asking, “HPD: Why are you perpetuating these irresponsible
contractors?” (Id. at ¶ 12). Similarly, the UBC accused
HPD of enabling Plaintiff's wage violations by “failing to
affirmatively collect certified payrolls and withhold contract
payments as required by the law.” (Id. at ¶ 11).
*2 According to Plaintiff, these allegations gave HPD “an
axe to grind with [Plaintiff].” (SAC ¶ 14). In consequence,
in or about late June 2011, Doug Apple, then-First Deputy
Commissioner of HPD, informed Plaintiff's owner, Chris
Tsetsekas, of HPD's decision to prohibit Plaintiff from acting
as general contractor on a public housing project known as
the West Wind project, located at 45 East 131st Street. (Id.
at ¶ 14). While not explicit in his reasoning, Apple intimated
that the prohibition was in response to the UBC's accusations
against Plaintiff and, in turn, that Plaintiff could resume
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working on HPD projects “[w]hen the dust settle[d].” (Id. at
¶ 15).
In the following months, Plaintiff made amends with the
UBC, which then agreed to “fully support [Plaintiff's] efforts
to get new HPD-related projects.” (SAC ¶ 16). Plaintiff
informed HPD about its agreement with the UBC, but by
that time DOI was investigating possible violations of the
Prevailing Wage Laws by Plaintiff and its subcontractors.
(Id. at ¶¶ 17, 20). Plaintiff reached out to James Tierney, the
DOI Inspector General, to ask for a meeting with DOI “to
learn the basis of the investigation and to figure out how it
could begin to take on new City-related construction projects
again”; eventually, Plaintiff secured a meeting with a DOI
investigator. (Id. at ¶¶ 21, 23). Plaintiff complains that DOI
was “anything but forthcoming” and would not reveal the
details of its investigation—even as it sought to question
Tsetsekas about Plaintiff's oversight of subcontractors. (Id. at
¶ 23). DOI denied, however, that it directed HPD to reject
Plaintiff's applications to work on HPD-funded projects. (Id.).
On September 14, 2012, HPD placed Plaintiff on “Enhanced
Review status” because of Plaintiff's “$1,689,262.79 in
prevailing wage violations.” (SAC ¶ 24). Kimberly
Hardy, HPD's Special Counsel for Regulatory Compliance,
insinuated that this decision was prompted by DOI. (Id. at
¶ 25). And by March 2013, Plaintiff learned that DOI was
working with the United States Attorney's Office for the
Eastern District of New York (the “EDNY”) on a criminal
investigation into Plaintiff's alleged Prevailing Wage Law
violations. (Id. at ¶ 26).
Plaintiff came to understand that the EDNY “had no interest”
in bringing a case against it, and hoped that this disinterest
would put an end to the investigation. (SAC ¶ 28). Instead,
however, Michael Carroll, the DOI Deputy Commissioner
and Chief of Investigations, teamed up with the New York
County District Attorney's Office (“DANY”). (Id. at ¶¶
28-29). Thereafter, DOI demanded that Plaintiff pay the
allegedly unpaid wages, require Tsetsekas to sit for a proffer
session with DOI and DANY, and cooperate with DOI
in future investigations of the construction industry. (Id.).
Plaintiff refused, and now alleges that DOI “made sure
[Plaintiff] would be forever barred from performing work on
City-related construction projects.” (Id. at ¶ 30).
In sum, Plaintiff alleges that Apple and Hardy of HPD, and
Carroll and Tierney of DOI, were “policymakers” by virtue
of their inclusion on the New York City Policymaker List
that the New York City Conflicts of Interest Board issues
annually pursuant to the New York City Charter. (SAC ¶¶
31-35). Plaintiff further alleges that, in their capacity as
policymakers, Apple and Hardy precluded Plaintiff from
working on HPD projects and placed Plaintiff on Enhanced
Review, while Carroll and Tierney singled out Plaintiff
for a criminal investigation, and effected a “de facto
debarment” from working on HPD projects. (Id. at ¶¶
33-35). Specifically, Plaintiff alleges that HPD barred it
from working as the general contractor on seven projects
—identified as the West Wind, Cypress Hill, Sugar Hill,
East Clarke Place, Alembic/Cypress, Alembic/Broadway, and
West 53rd Street projects—that were collectively valued at
$171,000,000. (Id. at ¶¶ 47-64). Plaintiff further alleges that,
during the same time period, HPD permitted seven developers
—Mountco Construction & Development Inc. (“Mountco”),
Galaxy General Contracting (“Galaxy”), Lettire Construction
Corporation (“Lettire”), Procida Construction Corporation
(“Procida”), Lemle & Wolff Construction Corporation
(“Lemle & Wolff”), Mega Contracting (“Mega”), and
MDG Design (“MDG”)—to continue working on affordable
housing projects, even though they, too, had been placed
on Enhanced Review status by HPD because of suspected
Prevailing Wage Law violations and had worked with the
same problematic subcontractors. (Id. at ¶¶ 37-46). To
compensate for this unequal treatment, Plaintiff seeks an
award of $171,000,000. (Id. at ¶ 80).
B. Procedural Background
*3 This case was removed from New York State Supreme
Court, New York County, on December 4, 2015. (Dkt. #1).
As noted above, HPD and DOI previously moved to dismiss
Plaintiff's First Amended Complaint (Dkt. #22); the Court
denied that motion and granted Plaintiff leave to replead,
Artec I, 2017 WL 782911, at *5-6. Plaintiff filed its SAC on
February 28, 2017 (Dkt. #33), and the parties appeared for
a pre-motion conference on March 22, 2017 (see Dkt. #34).
Defendant moved to dismiss the SAC on April 28, 2017 (Dkt.
#35), Plaintiff filed its opposition on May 26, 2017 (Dkt. #38),
and Defendant filed its reply in further support of its motion
on June 11, 2017 (Dkt. #39).
DISCUSSION
A. Applicable Law
1. Motions to Dismiss Under Rule 12(b)(6)
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When evaluating the sufficiency of a pleading under Rule
12(b)(6), a court must accept all well-pleaded allegations as
true and must make all reasonable inferences in favor of the
plaintiff. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
This obligation does not apply, however, to legal conclusions
couched as factual allegations. Id. at 72. “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). But a
complaint need not meet a “probability requirement,” and a
plaintiff's claim can proceed even if it appears that success on
the merits is unlikely. Id. (quoting Iqbal, 556 U.S. at 678).
2. Consideration of Documents Outside the Pleadings
Defendant has submitted with its briefing copies of Plaintiff's
Plea Agreement with DANY, dated June 16, 2015, in which
Plaintiff pleaded guilty to one count of Falsifying Business
Records in the First Degree, in violation of New York Penal
Law § 175.10 (Krueger Decl., Ex. C); a Superior Court
Information in the matter People v. Artec Construction &
Development Corporation, Case No. SCI-02139-2015, dated
February 2, 2016 (id.); and a Certificate of Disposition in
the same matter, dated January 7, 2016 (id. at Ex. D).
While the Second Amended Complaint speaks at length
about the unconstitutionality of the DOI and DANY criminal
investigation, it omits mention of Plaintiff's concomitant plea
and conviction.
Typically, when deciding a motion to dismiss, a court may
consider “facts alleged in the complaint, documents attached
to the complaint as exhibits, and documents incorporated by
reference in the complaint,” along with documents so heavily
relied upon that they are integral to the complaint. DiFolco
v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010);
see generally Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d
Cir. 2016) (discussing documents that may be considered
in resolving a motion pursuant to Fed. R. Civ. P. 12(b)
(6)). Defendant encourages the Court to take judicial notice
of Plaintiff's guilty plea and conviction. (Def. Br. 6). And,
indeed, a court may take judicial notice of convictions that
are a matter of public record. Shmueli v. City of N.Y., 424 F.3d
231, 233 (2d Cir. 2005). The Court thus considers the fact of
Plaintiff's guilty plea and felony conviction, though it does not
rely on the Plea Agreement, Superior Court Information, or
Certificate of Disposition for the truth of the matters asserted
therein. Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (“If
the court takes judicial notice, it does so in order to determine
what statements they contained—but again not for the truth
of the matters asserted.” (internal quotation marks omitted)).
3. The Equal Protection Clause
Plaintiff pursues two theories of violation of the Equal
Protection Clause, known as “selective enforcement” and
“class of one.” By way of background, the Equal Protection
Clause is a mandate that all state governments—including
administrative agencies—treat all similarly situated people
alike. See Engquist v. Oregon Dep't of Agr., 553 U.S. 591,
597 (2008); City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985). “Although the prototypical equal
protection claim involves discrimination against people based
on their membership in a vulnerable class, [courts] have long
recognized that the equal protection guarantee also extends
to individuals who allege no specific class membership but
are nonetheless subjected to invidious discrimination at the
hands of government officials.” Artec I, 2017 WL 782911, at
*2 (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d
494, 499 (2d Cir. 2001) (alteration in original)).
*4 A plaintiff who does not allege any protected class
affiliation can, nonetheless, demonstrate an equal protection
violation where the plaintiff shows that he or she was
treated differently from similarly situated individuals in
circumstances where there was no rational basis for the
difference in treatment (“class of one”), or where the different
treatment was based on a malicious or bad-faith intent to
injure (“selective enforcement”). See Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per curiam) (describing
“class of one” standard); LeClair v. Saunders, 627 F.2d 606,
609-10 (2d Cir. 1980) (describing “selective enforcement”
standard); see generally Bizzarro v. Miranda, 394 F.3d 82,
86-89 (2d Cir. 2005) (discussing both theories of liability).
With respect to a “class of one” claim, the Supreme
Court has recognized “a crucial difference, with respect to
constitutional analysis, between the government exercising
the power to regulate or license, as lawmaker, and the
government acting as proprietor, to manage [its] internal
operation.” Engquist, 553 U.S. at 598 (internal quotation
marks and citation omitted) (alteration in original). This
is because governmental entities must, at times, engage
in “discretionary decisionmaking based on a vast array of
subjective, individualized assessments” in which “treating
like individuals differently is an accepted consequence of
the discretion granted.” Id. at 603. For such cases, generally
speaking, equal protection claims are not viable.
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Though Engquist was decided in the public employment
context, the Second Circuit has recognized that “there may
be some circumstances where Engquist is properly applied
outside of the employment context,” while making clear
that “Engquist does not bar all class-of-one claims involving
discretionary state action.” Analytical Diagnostic Labs, Inc. v.
Kusel, 626 F.3d 135, 142 (2d Cir. 2010). As this Court noted in
Artec I, “class of one” claims are more likely to fall within the
Engquist bar when they challenge actions in the Government's
role as a proprietor, managing its internal operations. Artec I,
2017 WL 782911, at *3. 3
4. Municipal Liability
Finally, to hold a municipality such as Defendant liable for
the alleged constitutional violations, Plaintiff “is required
to plead and prove three elements: [i] an official policy or
custom that [ii] causes the plaintiff to be subjected to [iii] a
denial of a constitutional right.” Wray v. City of N.Y., 490 F.3d
189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir. 1983)). This is because a municipality
is only liable for actions that flow from a “policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.” Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
A “single act of a municipal policymaker, i.e., a person with
the authority to set municipal policy, can constitute official
policy, and thus, can give rise to municipal liability.” Santos
v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012)
(citing Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986)).
Authority to set municipal policy resides in “the official
or officials responsible for establishing final policy with
respect to the subject matter in question.” Pembaur, 475 U.S.
at 483 (citation omitted). “[W]hether an official had final
policymaking authority is a question of state law.” Id.; see
also Fierro v. N.Y.C. Dep't of Educ., 994 F. Supp. 2d 581, 588
(S.D.N.Y. 2014).
B. Analysis
1. Plaintiff's Suit Is Not Barred by Heck
*5 Defendant first argues that to the extent Plaintiff's
equal protection claims are based on the propriety of DOI's
investigation, those claims amount to an attack on the validity
of Plaintiff's criminal conviction, and, as such, are barred by
the Supreme Court's decision in Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). (Def. Br. 7). The Supreme Court in Heck
held that a plaintiff cannot challenge a criminal conviction
under § 1983 unless the conviction “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.” Heck, 512 U.S. at 486-87. This is often called
the “favorable termination” requirement. Poventud v. City of
N.Y., 750 F.3d 121, 130 (2d Cir. 2014) (en banc).
Neither party argues that Plaintiff's conviction has been
vacated or otherwise invalidated. Plaintiff sources its claim,
however, in an exception to the Heck bar recognized by the
Second Circuit, which exception permits § 1983 claims to
proceed where the plaintiff is no longer in state custody and
does not have any available habeas remedy. (Pl. Opp. 2-3
(citing Leather v. Ten Eyck, 180 F.3d 420, 424 (2d Cir. 1999))).
See also Huang v. Johnson, 251 F.3d 65, 73-75 (2d Cir. 2001)
(permitting a § 1983 claim to proceed where Plaintiff was
released from custody and could not pursue habeas relief).
Defendant is correct that the precise contours of the Heck
bar are not “definitively settled” in the Second Circuit, see
Teichmann v. New York, 769 F.3d 821, 827-31 (2d Cir. 2014),
but its related argument that Heck applies to convictions
secured through a guilty plea is inapposite. (Def. Reply 9).
It matters not how the conviction was entered; what matters
for the Heck analysis is whether the plaintiff has any recourse
in a writ of habeas corpus. See, e.g., Huang, 251 F.3d at
73-74 (declining to apply the Heck bar to a § 1983 action
filed by a plaintiff who pleaded guilty and was no longer in
custody). And although the application of Heck to a § 1983
claim where a habeas remedy is unavailable continues to
cause “consternation” in this Circuit, Teichmann, 769 F.3d
at 828 (Calabresi, J., concurring), Plaintiff's case is a clear
one. Even after the en banc narrowing of the Heck bar
in Poventud, this Circuit still recognizes an exception to
the favorable termination requirement where a plaintiff, like
Artec, was never in state custody, “that is, where an action
under § 1983 was a diligent plaintiff's only opportunity to
challenge his conviction in a federal forum.” Id. (Livingston,
J., concurring).
The Plea Agreement between Plaintiff and DANY imposed
a fine; because Plaintiff is a corporate entity, Plaintiff was
not sentenced to any term of imprisonment. (Krueger Decl.,
Ex. D). And because Plaintiff was never, and is not now, in
state custody, Plaintiff could never challenge the propriety of
its conviction through a petition for a writ of habeas corpus.
Accordingly, Plaintiff may bring a claim under § 1983.
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2. Plaintiff's Claim That the City Enacted a De Facto
Debarment Is Timely
Claims brought under § 1983 must be made within three
years of when the plaintiff “knows or has reason to know
of the harm.” Eagleston v. Guido, 41 F.3d 865, 871 (2d
Cir. 1994) (internal quotation marks omitted). From this,
Defendant argues that Plaintiff's claim based on an alleged
de facto debarment from HPD projects is time-barred, insofar
as it accrued before November 9, 2012—three years before
the initial complaint in this action was filed in state court.
(Def. Br. 9-11). This argument, in turn, is predicated on
Plaintiff's allegation in the SAC that responsibility for the
alleged debarment shifted “at some unknown point in 2012”
from HPD to DOI, because “HPD was no longer running the
show.” (SAC ¶ 34; see also Def. Br. 10).
*6 Defendant's argument splits hairs. The initial Complaint
in this matter named HPD and DOI as defendants, but,
following the Court's February 27, 2017 Order (Dkt. #32),
Plaintiff amended its pleading to name the proper entity, i.e.,
the City of New York (Dkt. #33). Thus, for purposes of the
instant motion, the Court evaluates liability as to the City
generally, rather than as to HPD or DOI individually. As long
as Plaintiff can show that its claim of a de facto debarment as
to Defendant accrued after November 9, 2012, its § 1983 on
those facts is timely.
Plaintiff argues that its claim for a de facto debarment did
not accrue until after November 2012. (Pl. Opp. 23-24). In
so doing, Plaintiff seizes upon Defendant's acknowledgement
that “[d]enial of a single contract or project is insufficient
to allege a de facto debarment.” (Id. (quoting Def. Br. 11)).
Indeed, Plaintiff alleges, by November 9, 2012, it was only
aware of one HPD project—the West Wind project—from
which it had been barred. (SAC ¶ 48). It was only in December
2012 that Plaintiff was barred from three more HPD projects
—Cypress Hill, Sugar Hill, and East Clarke Place—and in
early 2013 from two more—Alembic/Cypress and Alembic/
Broadway. (Id.).
The Court agrees with both parties that a denial of a single
contract does not a de facto debarment make. See Quadrozzi
Concrete Corp. v. City of N.Y., No. 03 Civ. 1905 (LAP),
2004 WL 2222164, at *7 (S.D.N.Y. Sept. 30, 2004); Housing
Works, Inc. v. City of N.Y., 680 N.Y.S.2d 487, 492 (1st Dep't
1998). Accordingly, the Court finds that Plaintiff did not know
or have reason to know of the alleged de facto debarment until
after November 9, 2012, which renders its de facto debarment
claim timely.
3. The Merits of Plaintiff's Equal Protection Claims
Plaintiff claims that Defendant treated it differently compared
to similarly situated affordable housing developers because
Plaintiff was (i) placed on HPD's Enhanced Review
list, (ii) subjected to a de facto debarment from HPD
projects, and (iii) subjected to a criminal investigation.
(SAC ¶¶ 33-35). In support of its equal protection claims,
Plaintiff proffers evidence of seven comparable contractors
—Mountco, Galaxy, Lettire, Procida, Lemle & Wolff, Mega,
and MDG (together, the “Comparators”)—all of which were
on HPD's Enhanced Review list but were permitted to
continue working on HPD affordable housing projects and
were not subjected to criminal investigation or prosecution.
(Id. at ¶¶ 38-44).
Before turning to Plaintiff's “class of one” and “selective
enforcement” claims, the Court observes at the outset that
Plaintiff cannot recover under either theory for its claim that
placement on the HPD Enhanced Review list constituted an
equal protection violation. (See SAC ¶ 33). 4 After all, both
“class of one” and “selective enforcement” claims require
proof that the plaintiff was treated differently from similarly
situated comparators. Bizzarro, 394 F.3d at 86. Each of the
seven Comparators was also placed on the Enhanced Review
list, and thus was treated in the same way as Plaintiff. (SAC
at ¶¶ 38-44). Accordingly, the Court limits its analysis to
Plaintiff's claims that Defendant impermissibly enacted a de
facto debarment and participated in a criminal investigation
of Plaintiff.
a. Claims Based on a Class of One Theory
*7 To prevail on a “class of one” claim, Plaintiff must
show that it was treated differently than similarly situated
comparators and that there was no rational basis for the
different treatment. Vill. of Willowbrook, 528 U.S. at 564.
Specifically, Plaintiff must establish that “(i) no rational
person could regard the circumstances of the plaintiff to
differ from those of a comparator to a degree that would
justify the differential treatment on the basis of a legitimate
government policy; and (ii) the similarity in the circumstances
and difference in treatment are sufficient to exclude the
possibility that the defendants acted on the basis of a mistake.”
Kusel, 626 F.3d at 140 (internal quotation marks and citation
omitted).
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Defendant raises what the parties agree is an issue of first
impression in this Circuit: whether the Supreme Court's
decision in Engquist—which eliminated “class of one” claims
for government employees—should be extended to bar claims
like Plaintiff's that are raised in the government contract
approval context. (Def. Br. 18-19; Pl. Opp. 12). Because the
degree and type of government discretion used is central to an
analysis of whether Engquist bars Plaintiff's claims, the Court
takes each alleged government action in turn, looking first
at Plaintiff's claim that Defendant effectively barred it from
working on HPD-funded projects and second at Plaintiff's
allegation that Defendant impermissibly singled Plaintiff out
for criminal investigation and prosecution.
i. De Facto Debarment
Defendant argues that “when HPD approves contractors for
the projects it funds, just like with procuring contactors
for City contracts, it is acting only as a proprietor and
manager, not as a regulator” and that, importantly, “HPD
wields virtually unfettered discretion over the selection
process.” (Def. Br. 19). Defendant further notes that “HPD
must rely upon many subjective decisions by agency experts
to optimize the use of taxpayer-funded loans” and “could
not function as a lender or mortgagor if every subjective
assessment were subject to constitutional review.” (Id. at 20).
In opposition, Plaintiff makes much of the Second Circuit's
holding in Kusel that “Engquist does not bar all class-of-
one claims involving discretionary state action.” (Pl. Opp.
12 (quoting Kusel, 626 F.3d at 142)). Plaintiff argues that
its claim should not be barred by Engquist because “HPD
is essentially acting as a regulator/lawmaker by adopting
regulations to govern the treatment of private contractors who
desire to perform work on privately negotiated contracts.” (Id.
at 13). Moreover, Plaintiff contends, Defendant acted
pursuant to a de facto standard in its treatment of contractors
placed on Enhanced Review for suspected Prevailing Wage
Law violations—a standard that permitted those developers
to continue working on HPD projects—which HPD violated
when it barred Plaintiff from further work. (Id. at 14-15).
Because Defendant's actions were governed by this standard,
they “were not discretionary enough to bar [Plaintiff's] ‘class
of one’ claim.” (Id. at 15). 5
*8 The Engquist Court was, at base, uneasy about imposing
constitutional liability for “forms of state action ... which
by their nature involve discretionary decisionmaking based
on a vast array of subjective, individualized assessments,”
and found that this concern “applies most clearly in the
employment context.” Engquist, 553 U.S. at 603. Presumably
for this reason, the Court was careful to confine its holding to
that context, id. at 607, and provided little guidance on how
it might be extended. It is not surprising, then, that Courts of
Appeals have split on this question. See Kusel, 626 F.3d at
141-42 (describing circuit split).
While the Second Circuit conceded in Kusel that “there may
be some circumstances where Engquist is properly applied
outside of the employment context,” it spoke disapprovingly
of certain district courts' attempts to extend the Engquist
bar. Kusel, 626 F.3d at 141 (“Several district courts in this
Circuit have extended Engquist’s holding to require that
plaintiffs seeking to establish a class-of-one claim must show
the difference in treatment flowed from non-discretionary
action, but they have done so without persuasive analysis.”).
By contrast, the Kusel Court found the reasoning in Alfaro
v. Labrador persuasive, which reasoning asked whether the
government action at issue “involve[s] discretion that is
actually exercised on a day-to-day basis” or if the action
is “theoretically discretionary but—as a practical matter—
actually depend[s] on de facto standards.” Id. (citing Alfaro
v. Labrador, No. 06 Civ. 1470 (JS), 2009 WL 2525128, at *9
(E.D.N.Y. Aug. 14, 2009)). Decisions in the latter category,
both courts agreed, were more likely to survive Engquist. Id.
Defendant argues that its discretion in deciding whether to
permit a contractor to work on an HPD-funded project falls
into the former “day-to-day” category. HPD issues loans
to fund affordable housing construction and, as part of its
lending role, “manage[s] the administration of these projects
in order to ensure the quality of this public service.” (Def.
Br. 19). One way in which Defendant “manages” this process
is by “approving contractors for private contracts receiving
loans.” (Id.).
Defendant may select a contractor for an HPD-funded project
by “any method permitted by Law which [HPD] determines
will best meet the Project's objectives and the City Housing
Goals, including, but not limited to, direct negotiation,
[Requests for Qualifications], [Requests for Proposals],
competitive bidding, public bidding, auction, selection by
entities other than [HPD], and application.” 28 R.C.N.Y. §
33-03(a). And, as Defendant notes, HPD can “disapprove any
contractor or subcontractor because of previous violations
of statutes, rules or regulations relating to discrimination,
standards of employment or labor standards, or because of
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inefficiency, abandonment of duties, or disregard for creditors
on prior jobs performed under this Program or other programs
of the City.” Id. § 2-06(a)(3). (See Def. Br. 20). The Rules
further provide that HPD “may reject any Applicant ... at any
time and for any reason” including if HPD determines “at
any time that good and sufficient reasons exist why the City
should not do business with an Applicant ... or should not
allow such Applicant ... to act as Sponsor for a Project,” while
making clear that the “Rules are not intended to confer rights
or benefits upon the general public or upon any individual or
entity.” Id. §§ 33-08(a)(1), 33-08(d). 6 Finally, HPD retains
the right to pull funding or change the Sponsor of a project
“at any time prior to the execution of a Binding Agreement.”
Id. § 33-08(e).
*9 Defendant's discretion to approve applicants for HPD-
funded projects is, thus, nearly unfettered. More to the point,
HPD's power to choose which contractors will work on
its projects is far more discretionary than the process that
gave the Second Circuit pause in Kusel. There, a clinical
testing lab complained that the New York State Department of
Health (“DOH”) subjected it to “an intense and unwarranted
degree of regulatory scrutiny.” Kusel, 626 F.3d at 137. DOH
investigated the lab numerous times over a period of several
years and “refused to renew [its] operating permit.” Id. at
138. Critical to the Court's analysis was the fact that “DOH
[did] not possess unfettered discretion in deciding whether to
revoke, suspend or otherwise limit an existing license”; DOH
could not revoke a license without a hearing, and the decision
could be challenged in an Article 78 proceeding. Id. at 142;
see N.Y. C.P.L.R. § 7801. In sharp contrast, HPD possesses
the ability to choose contractors through whatever process
it deems best and can elect not to work with a contractor
if it determines, in its discretion, that the City should not
do business with that entity. The Rules of the City of New
York do not require HPD to explain its choices, do not grant
contractors the right to a given project, and do not afford due
process in the event of a rejection or removal. See generally
28 R.C.N.Y. §§ 33-03, 33-08. Plainly, Defendant has broad
discretion to approve or disapprove an applicant for an HPD-
funded project.
Significantly, however, the analysis does not end there. As
Judge Seybert noted in Alfaro—and as the Second Circuit
found instructive in Kusel—government decisionmaking that
is “theoretically discretionary” can “as a practical matter [ ]
actually depend on de facto standards.” Alfaro, 2009 WL
2525128, at *9; see also Kusel, 626 F.3d at 141. For purposes
of this motion, the Court must accept as true Plaintiff's
allegation that Defendant employed what was, effectively, a
“consistent pattern and practice” of allowing contractors on
the Enhanced Review list to continue to work on HPD-funded
projects. Alfaro, 2009 WL 2525128, at *9. (See SAC ¶¶
38-44; Pl. Opp. 15). And where the government acts pursuant
to a standard, even where it is not obligated to do so, its
decisionmaking implicates the equal protection obligation to
treat “all persons similarly situated ... alike.” City of Cleburne,
473 U.S. at 439.
In light of Plaintiff's policy allegations and the Second
Circuit's decision in Kusel, the Court must conclude at this
stage of the litigation that the decisionmaking process at
issue is not so discretionary as to trigger the Engquist bar.
Accordingly, the Court may consider the merits of Plaintiff's
claim that Defendant's de facto debarment put Plaintiff in an
impermissible “class of one.” But while Plaintiff overcomes
this first hurdle, it falls at the second.
On the facts alleged in the SAC, the Court cannot find a
basis for a “class of one” claim regarding Defendant's de
facto debarment. To be sure, the SAC pleads sufficient facts
to show that Plaintiff was the only one of the Comparators
to be denied participation in HPD-funded projects while
being on Enhanced Review for suspected Prevailing Wage
Law violations. (See SAC ¶¶ 37-44). But also according to
the SAC, none of the Comparators was being investigated
for possible criminal conduct. (See id.). Given this rather
significant difference, the Court cannot say that Plaintiff
alleges the “extremely high degree of similarity” between
Plaintiff and the Comparators that is required to prevail on
a “class of one” claim. Clubside, Inc. v. Valentin, 468 F.3d
144,159 (2d Cir. 2006).
Even assuming, for purposes of this motion, that Plaintiff
were sufficiently situated to the Comparators, its claim still
fails because it cannot prove that there is no rational basis
for Defendant's actions. Plaintiff asserts that Defendant's
actions were “irrational” (SAC ¶ 77), but the Court does not
agree. 7 As Defendant notes, its decision to deny Plaintiff
work on HPD-funded contracts was reasonably related to
a legitimate government interest in ensuring that “workers
on HPD projects receive prevailing wages.” (Def. Br. 21).
Plaintiff concedes Defendant's interest in enforcing fair wage
laws, but claims nonetheless that there was no rational basis
to bar Plaintiff from HPD-funded contracts while allowing
other contractors that were suspected of similar violations,
because “there is nothing here to suggest that [Plaintiff's]
alleged prevailing wage violations were more severe than the
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Comparators['][.]” (Pl. Opp. 11). But, of course, there was
reason to single out Plaintiff: According to the SAC, none
of the Comparators was being investigated by DOI—first
with the EDNY and subsequently with DANY—for possible
criminal conduct. (SAC ¶¶ 26, 28-29, 38-44).
*10 Plaintiff lost its first HPD contract in June 2011, lost
three more in December 2012, and lost two more in early
2013. (SAC ¶¶ 51, 53, 55, 57, 59, 61). Plaintiff became aware
of DOI's investigation in January 2012 (id. at ¶ 20), and
learned that the investigation was criminal in nature in March
2013 (id. at ¶ 26). On these facts, Defendant's decision to bar
Plaintiff from HPD-funded projects during the pendency of an
investigation is rationally related to a legitimate government
interest. In sum, Plaintiff has failed to plead sufficient facts
that, taken as true, show that “no rational person could regard
the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy.”
Kusel, 626 F.3d at 140 (citing Neilson v. D'Angelis, 409 F.3d
100, 104 (2d Cir. 2005), abrogated on other grounds by Appel
v. Spiridon, 531 F.3d 138 (2d Cir. 2008)). On these facts, its
“class of one” claim cannot stand.
ii. The Criminal Investigation
The Court considers next whether Plaintiff's “class of
one” claim based on Defendant's participation in criminal
investigations into Plaintiff's alleged wage violations is barred
by Engquist and concludes that it is. The decisionmaking
applied by a prosecutor deciding which violations to
investigate and what cases to bring is the type of “day-
to-day” government discretion that a “class of one” claim
cannot properly redress. See Vested Bus. Brokers Ltd. v.
Cty. of Suffolk, No. 16 Civ. 4945 (JMA) (SIL), 2017 WL
4122616, at *7 (E.D.N.Y. Sept. 15, 2017) (“[T]o the extent
that [plaintiff] is challenging [defendant's] investigation and
subsequent decision not to make an arrest, the actions and
decisions taken are discretionary, and not subject to a ‘class
of one’ claim.”); Alfaro, 2009 WL 2525128, at *9 (“[W]here
a law is selectively enforced (without clear standards for
enforcement) against some people but not others, a class of
one claim inappropriately interferes with the discretionary
decision making process that a law enforcement officer or
body must engage in.”); see also United States v. Armstrong,
517 U.S. 456, 464 (1996) (“In the ordinary case, so long as
the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether
or not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion.”); United
States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (applying
the Engquist bar to a case challenging prosecutorial discretion
because “the discretion conferred on prosecutors in choosing
whom and how to prosecute is flatly inconsistent with a
presumption of uniform treatment”).
While the Second Circuit clarified in Kusel that “Engquist
does not bar all class-of-one claims involving discretionary
state action,” 626 F.3d at 142, it could not have been that
Court's intention to hold that door ajar for a claim like
Plaintiff's, which would grant a constitutional “class of one”
claim to every target of a criminal investigation and every
defendant in a criminal prosecution. The day-to-day work
of a prosecutor necessarily involves the selection of certain
individuals to investigate and charge—this is the very type of
government discretion that the Supreme Court removed from
equal protection review in Engquist. Accordingly, the Court
holds that Plaintiff's claim that Defendant placed it in a “class
of one” through participation in criminal investigations of it
is barred under Engquist, and the Court will not consider the
merits of this claim.
b. Claims Based on a Selective Enforcement Theory
Alternatively, Plaintiff complains that Defendant's de
facto debarment of Plaintiff from HPD-funded projects
and criminal investigation of Plaintiff effected equal
protection violations on a theory of impermissible “selective
enforcement.” (SAC ¶¶ 33, 35, 70-74). To plead a viable
selective enforcement claim, Plaintiff must establish that
“[i] compared with others similarly situated, [Plaintiff] was
selectively treated; and [ii] that such selective treatment was
based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights,
or malicious bad faith intent to injure a person.” LaTrieste
Rest. & Cabaret, Inc. v. Vill. of Port Chester, 40 F.3d 587, 590
(2d Cir. 1994). The Second Circuit has not settled the question
of whether the degree of similarity required to prevail in a
“selective enforcement claim” is less than that needed for
a “class of one” claim, but, in any event, Plaintiff must at
least show that Plaintiff and the Comparators are “similarly
situated in all material respects.” Mosdos Chofetz Chaim,
Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 695-96
(S.D.N.Y. 2011) (discussing the varying standards applied
and collecting cases).
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Artec Construction and Development Corp. v. City of New York, Not Reported in Fed....
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*11 The Court accepts as true that Plaintiff was treated
differently than the Comparators, insofar as Plaintiff was the
only one of the group to be denied HPD-funded contracts and
subjected to a criminal investigation. (SAC ¶¶ 36-64). But
the Court need not accept as true Plaintiff's legal conclusions
that it was similarly situated to the Comparators or that
Defendant acted out of malice. See Iqbal, 556 U.S. at 678.
Defendant argues that Plaintiff has not pleaded sufficient
facts to show that it is similarly situated to the Comparators.
(Def. Br. 13 (“[T]he SAC is silent regarding whether the
purported [C]omparators were on Enhanced Review status at
the time that HPD approved them to work on projects; when,
if ever, they were removed from Enhanced Review; and if
so, under what conditions.”)). Plaintiff weakly responds that
it cannot substantiate this claim until it receives discovery
from Defendant. (Pl. Opp. 7, 16). Even assuming that, with
the benefit of discovery, Plaintiff could show the required
degree of similarity, its “selective enforcement” claim would
still fail, as the SAC does not contain sufficient allegations
that Defendant acted with a malicious intent to injure.
The crux of Plaintiff's claim is that Defendant had
an “axe to grind” with Plaintiff following the UBC's
“smear campaign” (SAC ¶¶ 13-14), resulting in Defendant
vindictively barring Plaintiff from HPD-funded contracts
and putting Plaintiff through a criminal investigation (Pl.
Opp. 16-19). Plaintiff contends that this vindictive singling-
out “evidences irrationality and demonstrates bad faith or
malice.” (Id. at 19). But in so arguing, Plaintiff conflates
the two-prong test for “selective enforcement.” Plaintiff must
show that it was treated differently than those similarly
situated and that the different treatment was due to a malicious
purpose. LaTrieste Rest. & Cabaret, Inc., 40 F.3d at 590.
Plaintiff would have this Court find that different treatment is
itself proof of a malicious purpose. It is not.
There is nothing in the SAC, save Plaintiff's conclusory
assertion that Defendant harbored a grudge because of the
UBC's campaign, to support a finding that Defendant barred
plaintiff from HPD projects or investigated Plaintiff with a
malicious intent. Plaintiff's unsupported allegation does not
“nudge[ ] [Plaintiff's] claims across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. What is more, the
Court finds compelling Defendant's argument that a plausible,
non-discriminatory reason for Defendant's decision to deny
Plaintiff work on HPD-funded projects is readily apparent
—namely, that Plaintiff, unlike the Comparators, was being
investigated for possible criminal violations. And for the
reasons stated above with respect to Plaintiff's “class of
one” claim, the Court will not second-guess the discretion
of the DOI and the prosecutors' offices that investigated
Plaintiff under a “selective enforcement” theory without any
suggestion in the pleadings of bad faith.
As set forth above, Plaintiff has not adequately pleaded
any underlying constitutional violations under § 1983.
Accordingly, the Court need not reach the question of
whether Plaintiff's allegations establish municipal liability
under Monell. See Segal v. City of N.Y., 459 F.3d 207, 219
(2d Cir. 2000) (“Because the district court properly found no
underlying constitutional violation, its decision not to address
the municipal defendants' liability under Monell was entirely
correct.”).
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is
GRANTED. The Clerk of Court is directed to terminate all
pending motions, adjourn all remaining dates, and close this
case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 5891817
Footnotes
1 This Opinion draws principally from the Second Amended Complaint (“SAC,” Dkt. #33) and, for reasons
explained below, from certain facts and documents of which judicial notice can be taken. For convenience,
the Court refers to Defendant's moving brief (Dkt. #37) as “Def. Br.”; to Plaintiff's brief in opposition (Dkt.
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#38) as “Pl. Opp.”; and to Defendant's reply brief (Dkt. #39) as “Def. Reply.” The Declaration of Jenna
Krueger in Support of the Motion to Dismiss (Dkt. #36) is referred to as “Krueger Decl.”
2 Plaintiff does not specify when it was awarded these six contracts; Plaintiff simply says it had these contracts
“[d]uring the relevant time period.” (SAC ¶ 7).
3 Engquist did not discuss claims for selective enforcement and the Second Circuit has not yet addressed
the question of whether Engquist’s holding can be extended to such claims. See Emmerling v. Town of
Richmond, 434 Fed.Appx. 10, 12 (2d Cir. 2011) (summary order).
4 The Court understands the SAC to raise a claim that Plaintiff was improperly placed on the Enhanced Review
list. (SAC ¶ 33). In its briefing, Plaintiff appears to build on a passing reference in the SAC to Defendant's
refusal to remove Plaintiff from the Enhanced Review list with the goal of expanding its claim to include an
allegation that Defendant improperly kept Plaintiff on the Enhanced Review list. (Id. at ¶ 46; Pl. Opp. 9).
To the extent that Plaintiff seeks to raise such a claim, the Court finds it has not been adequately pleaded
in the SAC and that, even if it had, it would fail on the merits for the same reasons discussed in the text.
5 Plaintiff also analogizes the government action in Kusel—which, that Court held, was not so discretionary as
to trigger the Engquist bar—to the decision to place Plaintiff on the HPD Enhanced Review list, and Plaintiff
argues that the Court should permit that claim to proceed. (Pl. Opp. 12-13). Defendant counters that this
analogy in fact misreads the opening brief, in which Defendant argues that Engquist bars Plaintiff's claim
that Defendant impermissibly disallowed Plaintiff from working on various HPD-funded projects. (Def. Reply
5). The Court agrees, but for a different reason. As noted above, Plaintiff cannot recover on a “class of one”
theory for its claim that Defendant improperly placed it on the Enhanced Review list because Plaintiff is in
a class of, at least, eight. Shatney v. LaPorte, 634 Fed.Appx. 53, 54 (2d Cir. 2016) (summary order) (“[A]
plaintiff who is in a ‘class of one’ may bring an equal-protection claim ‘where the plaintiff alleges she has
been intentionally treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.’ ” (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam))).
Because the SAC alleges that Plaintiff was treated identically to the Comparators in its placement on HPD's
Enhanced Review list, this allegation cannot form the basis for any recovery, and the Court will not probe
Defendant's decision to place Plaintiff on Enhanced Review.
6 “Applicant” is defined as “any potential Sponsor of a Project, without regard to the method used by the Agency
to select the Sponsor for such Project, including, but not limited to, any person or entity which has submitted
or might potentially submit a qualification statement, proposal, bid, application, or other submission.” 28
R.C.N.Y. § 33-01(a)(4).
“Sponsor” is defined as “an Applicant or Selected Applicant, or an entity formed by an Applicant or Selected
Applicant and approved by the Agency, which has executed one or more Binding Agreement(s) with the
Agency.” 28 R.C.N.Y. § 33-01(a)(31).
7 Several of the parties' rational basis arguments center on the propriety of Plaintiff's placement on the
Enhanced Review list. (Def Br. 20-21; Pl. Opp. 8-9). As noted throughout this Opinion, the Court will not
consider these arguments.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Artemov v. City of New York, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1436024
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Dmitriy ARTEMOV, Plaintiff,
v.
The CITY OF NEW YORK, et al., Defendants.
24-CV-1908 (PKC) (LB)
|
Signed April 3, 2024
Attorneys and Law Firms
Dmitriy Artemov, Brooklyn, NY, Pro Se.
MEMORANDUM & ORDER
PAMELA K. CHEN, United States District Judge:
*1 Plaintiff Dmitriy Artemov (“Plaintiff”) filed this pro se
action on March 14, 2024, and asserts federal claims pursuant
to 42 U.S.C. §§ 1983, 1985, 1988, 2000e-16(a), as well as
under New York State and New York City law. The Court
grants Plaintiff's request to proceed in forma pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915. For the reasons discussed
below, Plaintiff is granted thirty (30) days from the date of
this Memorandum & Order to submit an amended complaint.
BACKGROUND
Plaintiff brings this action against the City of New York, John
Doe Police Officers (“Police Officer Defendants”), Spring
Creek Towers (“SCT”), 1 and John Doe SCT Public Safety
Officers (“Public Safety Officer Defendants”) (collectively,
“Defendants”). Plaintiff is a 55-year-old transgender woman
who resides in SCT. (Compl., ¶¶ 6, 15.) Plaintiff alleges that,
on March 7, 2024, she was at a grocery store on the grounds
of SCT when the Public Safety Officer Defendants started
harassing her. (Id. ¶¶ 15–18.) According to Plaintiff, the
Public Safety Officer Defendants, without any provocation,
“began loudly attracting the attention of the public and
provoking the crowd to violence by threateningly shouting
obscene insults including threats to life and threats to conduct
violence ... accompanied by obscene threatening gestures that
offend human dignity[.]” (Id. ¶ 18.) As a result, Plaintiff was
not able to gain access to a public area and was forced to
leave the area for her own safety. (Id. ¶ 19.) Plaintiff asserts
that she has been harassed by Defendants based on her sexual
orientation and gender identity and seeks monetary damages.
(See generally Compl.)
LEGAL STANDARD
A complaint must plead “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 is plausible “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63
(2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
In addition to alleging sufficient facts to state a plausible
claim for relief, under Federal Rule of Civil Procedure 8, a
plaintiff must provide a short, plain statement of the claims
against each named defendant. Id. at 677–78 (“[Rule 8]
demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.”). A pleading that only “tenders
naked assertions devoid of further factual enhancement” will
not suffice. Id. at 678 (citations and alterations omitted).
In reviewing a pro se complaint, the plaintiff's pleadings
should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)); see also Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009) (noting that even after Twombly, courts
“remain obligated to construe a pro se complaint liberally”).
At the same time, the court must dismiss a case filed by an IFP
plaintiff if the complaint “(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). An action is “frivolous”
when either “the factual contentions are clearly baseless, such
as when allegations are the product of delusion or fantasy, or
the claim is based on an indisputably meritless legal theory.”
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d
Cir. 1998) (internal quotation marks and alterations omitted).
DISCUSSION
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Artemov v. City of New York, Not Reported in Fed. Supp. (2024)
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I. Plaintiff's Claims Under Section 1983
*2 Section 1983 provides, in relevant part, that “[e]very
person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured.” 42 U.S.C. § 1983. Section 1983 “is not itself a source
of substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); see Cornejo v. Bell,
592 F.3d 121, 127 (2d Cir. 2010). To state a claim under
Section 1983, a plaintiff must allege two essential elements:
“(1) that the defendants deprived [them] of a right ‘secured by
the Constitution or laws of the United States’; and (2) that they
did so ‘under color of state law.’ ” Giordano v. City of New
York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)).
A. Plaintiff's Claims Against the City of New York and
the Police Officer Defendants
Aside from naming the City of New York and the Police
Officers Defendants in the caption of the Complaint, Plaintiff
fails to make any factual allegations against these Defendants.
Thus, it is unclear whether Plaintiff intends to maintain an
action against these Defendants and the extent to which
these Defendants were involved in the incident from which
Plaintiff's claims arise.
With regard to Plaintiff's claims against the City of New York,
to hold a municipality liable under Section 1983, “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 [or other federal] right.”
Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)
(quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007)); see also Frost v. N.Y.C. Police Dep't, 980 F.3d 231,
257 (2d Cir. 2020); Myftari v. Dep't of Fin., No. 23-CV-2558,
2023 WL 3628584, at *2 (E.D.N.Y. May 24, 2023). Although
Plaintiff broadly asserts that the acts she complains of “were
carried out ... pursuant to the customs, usages, practices,
procedures, and rules of the City of New York and the New
York City Policy Department” (Compl. ¶ 29), she offers no
factual support for this conclusory allegation.
With regard to Plaintiff's claims against the Police Officer
Defendants, “[i]t is well settled that, in order to establish
a defendant's individually liability in a suit brought
under [Section 1983], a plaintiff must show ... the
defendant's personal involvement in the alleged constitutional
deprivation.” Grullon v. City of New Haven, 720 F.3d 133,
138 (2d Cir. 2013). To establish personal involvement,
a plaintiff must plead that “each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.” Tangreti v. Bachmann, 983
F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S.
at 676). To the extent that Plaintiff intends to maintain a
Section 1983 action against the Police Officer Defendants,
she fails to plead any facts to show that the officers had
any personal involvement in the alleged rights violations
asserted in her Complaint. See, e.g., Hall v. Suffolk Cnty., No.
23-CV-4606, 2023 WL 4747395, at *3 (E.D.N.Y. July 25,
2023) (dismissing claims against officers where there was no
indication that the officers had any personal involvement in
the purported constitutional deprivation).
B. Plaintiff's Claims Against Spring Creek Towers
Spring Creek Towers “is a private corporation that operates
a private security force that has been deputized by the New
York City Police Department and whose officers have the
power to make arrests.” Artemov v. Ramos, No. 18-CV-2537,
2018 WL 2121595, at *3 (E.D.N.Y. May 8, 2018) (quoting
Brown v. Starrett City Assocs., No. 09-CV-3282, 2011 WL
5118438, at *1 (E.D.N.Y. Oct. 27, 2011)). When a private
corporation, such as SCT, operates a private police force,
it is subject to liability under Section 1983 as if it were a
municipality. Id. However, to prevail on a Section 1983 claim
against a municipality, a plaintiff must show that an action
pursuant to a municipality's official policy caused the injury.
See Jones v. Town of East Haven, 691 F.3d 72, 82 (2d Cir.
2012). Here, Plaintiff fails to allege facts that would support
an inference that an official policy or custom of SCT or SCT's
Public Safety Department caused a violation of her federally
protected rights. See Artemov, 2018 WL 2121595, at *3.
* * *
*3 Accordingly, Plaintiff's claims under Section 1983 are
dismissed with leave to amend.
II. Plaintiff's Claims Under Section 1985
To state a conspiracy claim under Section 1985(3), Plaintiff
must allege: “(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal
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privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; (4) whereby a person is either
injured in [their] person or property or deprived of any right
or privilege of a citizen of the United States.” See Cine SK8,
Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007)
(citing 42 U.S.C. § 1985(3)); Guillen v. City of New York,
625 F. Supp. 3d 139, 159 (S.D.N.Y. 2022). A plaintiff must
also show that the conspiracy was “motivated by some racial
or perhaps otherwise class-based, invidious discriminatory
animus.” Cine SK8, Inc., 507 F.3d at 791 (quoting Thomas v.
Roach, 165 F.3d 137, 146 (2d Cir. 1999)). Mere conclusory
or general allegations of a conspiracy are insufficient to state
a claim. See Doe v. Fenchel, 837 F. App'x 67, 68–69 (2d
Cir. 2021) (summary order) (affirming dismissal of plaintiff's
Section 1985 conspiracy claim where the operative complaint
did not include facts to support its conclusory allegations);
Baa v. Gonzalez, No. 22-CV-2602, 2023 WL 5278482, at *8
(E.D.N.Y. Aug. 16, 2023). Plaintiff has failed to plead any
plausible facts to support a claim that Defendants acted in
concert to deprive her of equal protection of the law.
Accordingly, Plaintiff's claims under Section 1985 are
dismissed with leave to amend.
III. Plaintiff's Claims Under Section 1988
To the extent that Plaintiff seeks attorneys’ fees under Section
1988, any such claim fails because Plaintiff, as a pro se
litigant, cannot recover attorneys’ fees. See Jackson v. Cnty.
of Rockland, 450 F. App'x 15, 19 (2d Cir. 2011) (summary
order) (“The Supreme Court has spoken clearly that a pro
se litigant ... may not receive attorney's fees under Section
1988.” (citing Kay v. Ehrler, 499 U.S. 432, 438 (1991)));
Azaryev v. City of New York, No. 21-CV-3856, 2021 WL
3861722, at *2 (E.D.N.Y. Aug. 27, 2021).
Accordingly, any such claim is dismissed without leave to
amend.
IV. Plaintiff's Remaining Claims
Plaintiff appears to seek to bring a claim under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–16(a).
(See Compl. ¶ 3.) However, Title VII makes it unlawful for
an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to [their] compensation, terms, conditions,
or privileges of employment, because of such individual's
race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e–2(a)(1). There is no indication that Plaintiff was
ever employed by or sought employment with the named
Defendants. As such, Plaintiff's claim under Title VII is
dismissed without leave to amend.
Finally, to the extent that Plaintiff seeks to allege that she
was denied the full and equal use of a public accommodation
because of her gender under Title 8 of the Administrative
Code of the City of New York (“NYCHRL”), Plaintiff fails to
plead sufficient facts for the Court to determine if a violation
occurred. See, e.g., Mihalik v. Credit Agricole Cheuvreux
N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013) (explaining
that, to state a claim for gender discrimination under the
NYCHRL, a “plaintiff need only show differential treatment
—that she is treated ‘less well’—because of a discriminatory
intent” (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d
27, 39 (N.Y. App. Div. 2009))). As such, the Court dismisses
Plaintiff's claim under Title 8 with leave to amend.
LEAVE TO AMEND
*4 A pro se plaintiff should be given an opportunity to
amend the complaint if a “liberal reading of the complaint
gives any indication that a valid claim might be stated.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see Shomo v.
City of New York, 579 F.3d 176, 183 (2d Cir. 2009). For the
reasons stated above, Plaintiff's claims under Section 1988
and Title VII are dismissed with prejudice; however, Plaintiff
may file an amended complaint within thirty (30) days of the
date of this Order to assert plausible claims under Sections
1983 and 1985 and Title 8 of the Administrative Code of
the City of New York. The amended complaint must clearly
identify each legal claim and set forth a short, plain statement
of the relevant facts supporting it. Plaintiff must name as
Defendants those individuals who were allegedly involved
in the deprivation of her rights. For each Defendant named,
Plaintiff should include a brief description of what each
Defendant did or failed to do, the date and location of each
relevant event, and how the Defendant's acts or omissions
caused the Plaintiff injury.
CONCLUSION
The Court grants Plaintiff leave to file an amended complaint
within thirty (30) days of this Order. It must be captioned
“First Amended Complaint” and bear the same docket
number as this Order. All further proceedings are stayed for
30 days.
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Artemov v. City of New York, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
If Plaintiff does not file an amended complaint within 30 days,
or show good cause as to why she cannot comply with this
deadline, the action shall be dismissed, and judgment entered.
Plaintiff may wish to consult the City Bar Justice Center's
Federal Pro Se Legal Assistance Project at (212) 382-4729
for free, confidential limited-scope legal assistance.
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).
All Citations
Not Reported in Fed. Supp., 2024 WL 1436024
Footnotes
1 Spring Creek Towers is a self-contained community consisting of 5,881 residential units located in Brooklyn,
New York. See Spring Creek Towers: About Us, https://www.springcreektowers.com/aboutus.html (last
visited Apr. 3, 2024).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 167 of 520

Aurecchione v. Falco, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Aurecchione v. Falco, 2nd Cir., April 3, 2025
2025 WL 779278
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Philip S. AURECCHIONE, Plaintiff,
v.
Sheriff Louis FALCO III, et al., Defendants.
7:22-CV-04538 (NSR)
|
Signed March 7, 2025
Attorneys and Law Firms
Martin Emilio Souto-Diaz, Amori & Associates, Stroudsburg,
PA, Robert C. Barchiesi II, Barchiesi Law PLLC, Bethlehem,
PA, for Plaintiff.
Robert Benjamin Weissman, Saretsky Katz Dranoff
Weissman & Maynard, LLP, Elmsford, NY, for Defendants
Sheriff Louis Falco III, Tom Walsh, Officer Seamus Lyons,
Officer Kerri Kralik, Officer Mark Colon, Officer James
VanCura, Officer Inv. Budnick.
Gee Won Cha, Steven Neil Schulman, Wesley Eugene
Bauman, Office of the Attorney General, New York, NY, for
Defendants Dierdre Ryan, Lynn Johnson-Richardson.
AMENDED OPINION & ORDER 1
NELSON S. ROMÁN, United States District Judge:
*1 Plaintiff Philip S. Aurecchione (“Plaintiff”) brings this
action under 42 U.S.C. § 1983 (“Section 1983”) against the
following Defendants: Seamus Lyons, James VanCura, Mark
Colon, Kerri Kralik, and Investigator Budnick in their official
and individual capacities as law enforcement officers in
the Rockland County Sheriff's Department (collectively, the
“County Defendants”). Plaintiff asserts four causes of action,
including: (1) unlawful search and seizure and unreasonable
delay in violation of substantive due process rights against
Officers Lyons and Kralik (2) procedural due process
violations against Officers Lyons, Kralik, Colon, VanCura,
and Budnick; (3) unrelated special conditions of parole and
violation of freedom of association in violation of substantive
due process against Officers Ryan and Johnson-Richardson;
and (4) unlawful search and seizure in violation of substantive
due process against Officer Ryan. On October 25, 2023,
Plaintiff filed the Third Amended Complaint (“TAC”) (ECF
No. 89). Pending before the Court are the County Defendants'
motion to dismiss Plaintiff's first two causes of action. (ECF
No. 108.) For the following reasons, the Court GRANTS the
County Defendants' motion in full.
BACKGROUND
A. Factual Background
On September 3, 2018, Plaintiff was arrested on state firearm
charges and detained in Rockland County Jail. (TAC at ¶
11.) Plaintiff was also charged with violating the terms of his
federal supervised release, which were imposed as part of a
prior federal case. (Id. at ¶ 12.) Plaintiff was then transferred
to federal custody on a writ of habeas corpus. (Id. at ¶ 13.) On
September 26, 2019, a federal judge sentenced Plaintiff to two
18-month terms of imprisonment for Plaintiff's violation of
federal supervised release. (Id. at ¶ 15.) On February 7, 2019,
Plaintiff pleaded guilty in his New York State (“NYS”) case
and was sentenced to two to four years of incarceration with
his federal sentence. (Id. at ¶ 16.) Both Plaintiff's federal and
NYS sentences were to run concurrently. (Id. at ¶¶ 15-16.)
No supervision was to follow either sentence. (Id. at ¶¶
15-16.) The Plaintiff was discharged from federal custody on
February 25, 2020 (Id. at ¶ 18.)
Plaintiff was incarcerated from September 3, 2018, through
February 25, 2020, for a total of 17 months and 22 days.
As such, he still owed approximately six months on his
minimum state sentence, and he owed more than two-and-a-
half years on his maximum state sentence. The Department
of Corrections and Community Services (“DOCCS”) failed
to file a timely detainer with the Bureau of Prisons (“BOP”).
(Id. at ¶ 18.) On July 23, 2020, Judge Russo of Rockland
County Court issued a Certificate of Conviction and Order of
Commitment. (Declaration of Robert B. Weissman in Support
of County Defendants' Motion to Dismiss (“Weissman
Decl.”) at Ex. M, ECF No. 72-13.) The Certificate committed
Plaintiff into the custody of the Rockland County Sheriff's
Department to serve the remainder of his state sentence. (Id.)
*2 Following his release from Federal Custody, officials
from DOCCS, the Rockland County Sheriff's Office, and
Rockland County District Attorney's Office worked to re-
arrest the Plaintiff as he still had outstanding time on his
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NYS sentence. (Id. at ¶ 19.) Officers Lyons and Kralik were
assigned to Plaintiff's case (Id. at ¶ 22.) Officers Lyons
and Kralik sought a warrant from Judge Russo but were
denied. (Id. at ¶ 23.) Plaintiff's Attorney was present to
discuss the warrant and argue against its issuance. (Id. at ¶
24.) Following the denial of the warrant, Plaintiff was not
directed to surrender himself to the Rockland County Sheriff's
Department to serve the rest of his state sentence. Id.
Officers Lyons and Kralik then physically and electronically
surveilled the Plaintiff for 11 months. (Id. at ¶ 28.) This
surveillance was joined by the Town of Newburgh Police
Department and the FBI who worked to extract information
from Plaintiff's social media and communications providers.
(Id. at ¶ 29.) Plaintiff was arrested on June 21, 2021, by
Officers Lyons Kralik, Colon, Kralik, VanCura, and Budnick.
(Id. at ¶ 30.) Defendant Officers halted Plaintiff's vehicle,
forcibly removed him, and “pushed [Plaintiff's] head against
the car with significant force”. (Id. at ¶ 32.)
Following his arrest, Defendant Officers Lyons and Kralik
did not present Plaintiff before a sentencing court, which
Plaintiff argues deprived him of his due process rights. (Id.
at ¶¶ 33-34.) Following his arrest, Plaintiff was brought to
Rockland County Jail. (Id. at ¶ 34.) After several weeks
in Rockland County Jail, the Plaintiff was brought to the
Downstate Correctional Facility in Dutchess County, New
York without any new orders of re-commitment. (Id. at ¶¶
37-38.) Plaintiff spent several months in custody of DOCCS
and was released on May 11, 2022. (Id. at ¶ 39.)
On August 25, 2021, Plaintiff retained counsel. (Id. at ¶ 41.)
Plaintiff's counsel filed a Habeas petition for his release from
custody and to award him with credit he spent at liberty. (Id.
at ¶ 41.) DOCCS released Plaintiff under supervised release
to Officers Dierdre Ryan and Lynn Johnson-Richardson. (Id.
at ¶ 42.) On November 10, 2021, Plaintiff's petition was
rendered moot due to his release, but he was given 16 months
credit for liberty against his Rockland County Sentence. (Id.
at ¶ 44.) Plaintiff alleges that, although he informed Parole
Officers Ryan and Johnson-Richardson about his awarded
time credit, they continued to harass him on parole. (Id. at
¶ 46.) DOCCS moved to overturn Plaintiff's Habeas ruling
which was denied. (Id. at ¶¶ 48-50.) In response, Plaintiff filed
a federal Habeas petition challenging his continued detention.
(Id. at ¶ 51.) DOCCS discharged Plaintiff's sentence before
Plaintiff's federal petition could be heard. (Id. at ¶ 52.)
During Plaintiff's parole, he was unable to live with his
romantic partner due to a conviction from over 20 years ago.
(Id. at ¶ 56.) Parole Officers Ryan and Johnson-Richardson
placed restrictions on Plaintiff's ability to drive, work, and
attend commercial driving training. (Id. at ¶ 57.) Plaintiff
was placed under mandated substance abuse counseling. (Id.
at ¶ 57.) On May 11, 2022, Plaintiff's parole ceased, and
Parole Officers Ryan and Johnson-Richardson were notified
of Plaintiff's parole status. (Id. at ¶ 59.) Despite this, on May
18, 2022, Parole Officer Ryan entered Plaintiff's property,
where she searched his residence, detained, and questioned
him. (Id. at ¶ 60.) Officer Ryan never notified Plaintiff that his
parole had ceased. (Id. at ¶ 61.) Plaintiff was formally notified
of this termination weeks later. (Id. at ¶ 62.)
B. Procedural History
*3 Plaintiff filed this action on June 1, 2022. (ECF No.
3.) This Court granted Plaintiff leave to amend his pleadings
twice. Plaintiff filed his First Amended Complaint on August
27, 2022. (ECF No. 23), and his Second Amended Complaint
(“SAC”) on October 11, 2022. (ECF No. 42.) On January
27, 2023, Defendants moved to dismiss Plaintiff's SAC. (ECF
No. 70.) On September 25, 2023 the Court issued its opinion
granting Defendants' motion. (ECF No. 88.)
On October 25, 2023, Plaintiff filed his TAC, alleging
substantive and procedural due process violation against
County Defendants. (ECF No. 89.) On March 31, 2024,
Defendants filed their motion to dismiss the TAC. (ECF No.
108.) On the same day, Defendants filed a memorandum of
law in support of their motion to dismiss. (“Defs.' MoL.”)
(ECF No. 109) as well as a reply memorandum of law
(“Reply”). (ECF No. 111.) On March 31, 2024, Plaintiff filled
a memorandum of law in opposition to Defendants' motion.
(“Opp.”) (ECF No. 112.)
LEGAL STANDARDS
A. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), dismissal
is proper unless the complaint “contain[s] 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)). When there are well-pled factual allegations in
the complaint, “a court should assume their veracity and then
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determine whether they plausibly give rise to an entitlement
to relief.” Id. at 679.
While the Court must take all material factual allegations
as true and draw reasonable inferences in the non-moving
party's favor, the Court is “not bound to accept as true a
legal conclusion couched as a factual allegation,” or to credit
“mere conclusory statements” or “[t]hreadbare recitals of the
elements of a cause of action.” Id. at 678 (quoting Twombly,
550 U.S. at 555). “Because a Rule 12(b)(6) motion challenges
the complaint as presented by the plaintiff, taking no account
of its basis in evidence,” this Court “may review only a narrow
universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016). The critical inquiry is whether the plaintiff
has pled sufficient facts to nudge the claims “across the line
from conceivable to plausible.” Twombly, 550 U.S. at 570.
A motion to dismiss will be denied where the allegations
“allow[ ] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
B. Section 1983
Section 1983 provides, in relevant part, that “[e]very person
who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured.” 42 U.S.C. § 1983. Section 1983 “is not itself a source
of substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); see Cornejo v. Bell,
592 F.3d 121, 127 (2d Cir. 2010).
To state a claim under Section 1983, a plaintiff must allege
two essential elements: “(1) that the defendants deprived him
of a right ‘secured by the Constitution or laws of the United
States’; and (2) that they did so ‘under color of state law.’
” Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir.
2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 49–50 (1999)). Therefore, a Section 1983 claim has two
essential elements: (1) the defendant acted under color of
state law, and (2) as a result of the defendant's actions, the
plaintiff suffered a denial of his federal statutory rights, or
his constitutional rights or privileges. See Annis v. County
of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Quinn v.
Nassau Cty. Police Dep't, 53 F. Supp. 2d 347, 354 (E.D.N.Y.
1999) (stating Section 1983 “furnishes a cause of action for
the violation of federal rights created by the Constitution.”).
C. Law of the Case Doctrine
*4 The law-of-the-case doctrine asserts that once “a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.”
Arizona v. California, 460 U.S. 605, 618 (1983). Further,
“when a court has ruled on an issue, that decision should
generally be adhered to by the court in subsequent stages in
the same case unless cogent and compelling reasons militate
otherwise.” Delville v. Firmenich Inc., 23 F. Supp. 3d 414,
425 (S.D.N.Y. 2014) (quoting United States v. Quintieri, 306
F.3d 1217, 1225 (2d Cir. 2002)). Such compelling reasons
include “major grounds justifying reconsideration [such as]
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.” United States v. Plugh, 648 F.3d 118, 123
(2d Cir. 2011) (quoting Doe v. New York City Dept. of Social
Services, 709 F.2d at 782, 789 (2d Cir. 1983)).
DISCUSSION
Plaintiff brings the following claims:
(1) Unreasonable Search and Seizure and Unreasonable
Delay, in violation of the Fourth, Fifth, and Fourteenth
Amendments against Defendant Officers Seamus Lyons
and Kerry Kralik in their official and individual
capacities; and
(2) Procedural Due Process Claim, in violation of
the Fourth, Fifth, Sixth, and Fourteenth Amendments
against Defendant Officers Seamus Lyons, Mark Colon,
Kerry Kralik, James VanCura, and Investigator Budnick
in their official and individual capacities.
Defendants move to dismiss these claims on several grounds.
I. Plaintiff's Dismissed Monell Claims
On September 25, 2023 the Court dismissed claims against
Defendants in their official capacity with prejudice. The TAC
reiterates these same claims against Defendants. Despite this,
Plaintiff requests the Court, sua sponte, reconsider its finding.
Motions for reconsideration are governed by Local Civil Rule
6.3 and Fed. R. Civ. P. 60(b). The standard for granting
a reconsideration motion is strict. Shrader v. CSX Transp.,
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Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The major grounds
justifying reconsideration are ‘an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest injustice.’
” Doe v. N.Y. City Dep't of Soc. Servs., 709 F.2d 782,
789 (2d Cir. 1983). The motion “will generally be denied
unless the moving party can point to controlling decisions
or data that the court overlooked and that might reasonably
be expected to alter the conclusion reached by the court.”
In re Optimal U.S. Litig., 886 F. Supp. 2d 298, 311-12
(S.D.N.Y. 2012). Reconsideration of a court's previous order
is “an extraordinary remedy to be employed sparingly in
the interests of finality and conservation of scarce judicial
resources.” In re Initial Pub. Offering Sec. Litig., 399 F. Supp.
2d 298, 300 (S.D.N.Y. 2005) (internal citation and quotation
omitted), aff'd sub nom. Tenney v. Credit Suisse First Boston
Corp., Nos. 05 Civ. 3430, 05 Civ. 4759 & 05 Civ. 4760, 2006
WL 1423785, at *1 (2d Cir. 2006). Plaintiff has failed to
demonstrate a legal basis for the Court to reconsider its prior
ruling. Accordingly, the claims remain dismissed.
II. Plaintiff's Substantive and Procedural Due Process
Claims
A. Defendant Officers Lyons and Kralik Are
Responsible for Substantive Due Process Violations in
their Individual Capacity
1. Unlawful Search and Seizure
When a Plaintiff brings a Section 1983 claim “[w]here a
particular Amendment provides an explicit textual source
of constitutional protection against a particular sort of
government behavior, that Amendment, not the more
generalized notion of substantive due process, must be
the guide for analyzing these claims.” Albright v. Oliver,
510 U.S. 266, 273 (1994). Section 1983 claims for
unreasonable search and seizure implicate the textual source
of the Fourth Amendment. The Fourth Amendment protects
“against unreasonable searches and seizures ... but upon
probable cause.” U.S. Const. amend. IV. In considering
reasonableness, “a warrantless arrest by a law officer is
reasonable ... where there is probable cause to believe that a
criminal offense has been or is being committed.” Devenpeck
v. Alford, 543 U.S. 146, 152 (2004). The determination of
“whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.” Id. Therefore, an officer has
a defense against a Section 1983 claim against unreasonable
search and seizure if their search was reasonable and justified
by probable cause. See Jenkins v. City of New York, 478 F.3d
76 (2d Cir. 2007)) (stating “[t]he existence of probable cause
to arrest constitutes justification and is a complete defense to
an action for false arrest ... whether the action is brought under
state law or under § 1983.”) (internal quotations omitted).
Probable cause does not need to be considered in a vacuum
of one officer's knowledge. An arrest is permissible “even
if an arresting officer lacks personal knowledge sufficient to
establish probable cause, so long as the officer acts as a result
of communication with a ... [fellow] officer and the police
as a whole were in possession of information sufficient to
constitute probable cause to make the arrest.”) Hoyos v. City
of New York, 999 F. Supp. 2d 375, 386 (E.D.N.Y. 2013) (citing
Annunziata v. City of New York, 2008 WL 2229903, at *3
(S.D.N.Y. May 28, 2008)) (internal quotations omitted).
*5 Here, Plaintiff asserts in his TAC that Officers Lyons
and Kralik surveilled him following their denial of a warrant
request on September 14, 2020. (TAC at ¶ 61.) However,
although no warrant was issued, the Defendants conducted
their search of Plaintiff “with county sanction.” (Id. at ¶ 78.)
On this basis, Plaintiff alleges that Defendants violated his
Fourth Amendment Rights. In response, Defendants argue
that “[t]his is simply a reformulated false arrest claim,” which
the Court already found was meritless because probable
cause existed for Plaintiff's arrest. (Defs.' MoL. at 11.)
Defendant's contentions are persuasive. In its September 25,
2023 Opinion, the Court concluded that Officers Lyons and
Kralik had probable cause to re-arrest the Plaintiff. (ECF
No. 88 at 19-20.) On February 5, 2020, Judge Russo issued
a Certificate of Conviction and an Order of Commitment
against the Plaintiff. (Weissman Decl. at Ex. M, ECF No.
72-13.) Despite Judge Russo declining to extend a bench
warrant to arrest the Plaintiff (TAC at ¶ 67), Judge Russo's
Certificate of Conviction provided Defendants Lyons and
Kralik with the authority to re-arrest the Plaintiff. Given that
Officers Lyons and Kralik had knowledge of the Certificate of
Conviction and of Plaintiff's remaining state sentence, there
was probable cause to re-arrest the Plaintiff. For these reasons,
and those cited in the September 25, 2023 Opinion, Plaintiff's
Section 1983 claims for unreasonable search and seizure are
dismissed with prejudice.
2. Unreasonable Delay
A Plaintiff may bring a claim of unreasonable delay
under the Fourth Amendment if the “individual can prove
that his or her probable cause determination was delayed
unreasonably.” Cnty. of Riverside v. McLaughlin, 500 U.S. 44,
56 (1991). The standard for probable cause “is a practical,
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nontechnical conception that deals with the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.” Maryland
v. Pringle, 540 U.S. 366, 370 (2003) (internal quotations
omitted). Examples of a probable cause delay under the
Fourth Amendment include “delays for the purposes of
gathering additional evidence to justify the arrest, a delay
motivated by ill will, or delay for delay's sake.” McLaughlin,
500 U.S. at 56 (1991). The probable cause determination
seeks to limit the government in warrantless arrests against
officers who cannot give probable cause as to why the
arrest occurred. Id. at 45. See also U.S. v. Pabon, 871 F.3d
164, 179-181 (2d Cir. 2017) (discussing unreasonable delay
under the Fourth Amendment primarily pertains to delays
following an arrest, not prior). Such claims of delay can be
rendered moot when “they either received probable cause
determinations or were released.” McLaughlin, 500 U.S. at 52
(1991). In asserting the existence of such delays, the Plaintiff
“bears the burden of proving the delay was unreasonable.”
Case v. City of New York, 233 F. Supp. 3d 372, 387 (S.D.N.Y.
2017).
Here, and as mentioned supra, this Court has concluded that
there was probable cause to arrest Plaintiff following Judge
Russo's Certificate of Conviction. The Fourth Amendment
primarily protects against unreasonable delays following an
arrest. In his TAC, the Plaintiff alleges delays prior to
this arrest. Despite this difference, Judge Russo's certificate
provided Defendant Officers Lyons and Kralik with the
necessary probable cause in either instance. Accordingly,
because (1) the Fourth Amendment's protection is confined
to delays following an arrest, and not prior to an arrest, and
(2) there was probable cause to arrest Plaintiff, the Court
dismisses Plaintiff's unreasonable delay claim.
Under the Fifth Amendment, “delay prior to arrest or
indictment may give rise to a due process claim.” U.S.
v. MacDonald, 456 U.S. 1, 7 (1982). A Plaintiff may
successfully bring this claim [argument] if they could prove
that the delay “caused substantial prejudice to [Plaintiff's]
right[ ] to a fair trial and the delay was an intentional device to
gain tactical advantage over the accused.” U.S. v. Marion, 404
U.S. 307, 324 (1971). The determination of whether or not
prejudice has occurred under due process “are fact-specific
inquiries that will turn on the particular circumstances of a
case.” U.S. v. Santiago, 987 F. Supp. 2d 465, 489 (S.D.N.Y.
2013). But that “nonetheless, [under these inquiries] there is
an indisputably high burden on [one] who argues that delay
rises to the level of a due process violation.” Id. Although the
protection of unreasonable delay under “due process [may]
bar[ ] prosecution whenever a defendant suffers prejudice,” it
must be remembered, “that proof of actual prejudice makes a
due process claim concrete and ripe for adjudication, not that
it makes the claim automatically valid.” U.S. v. Lovasco, 431
U.S. 783, 789 (1977). The prejudice must be of the nature that
violates the basic principles of justice which lie at the base
of our civil and political institutions, and which define the
community's sense of justice and equity. Id. at 790 (internal
citations omitted).
*6 Here, the Plaintiff has not alleged how his claim
of unreasonable delay prejudiced his right to a fair trial,
or whether the government engaged in some strategic
unfair conduct against him. Under Lovasco, to be ripe for
adjudication, there must be proof of actual prejudice. It is
not enough to simply state Plaintiff suffered an unreasonable
delay. Plaintiff asserts that Defendant Officers Lyons and
Kralik attempted to receive a warrant following the Certificate
of Conviction due to “doubts concerning its authoritative
weight.” (TAC at ¶ 67.) Following the denial of the warrant,
Plaintiff maintains that Defendant Officers engaged in a
prolonged surveillance operation against him and that this
“delay remains undisclosed and inexplicable.” (Id. at ¶¶
68-69.) However, despite the gap between Plaintiff's release
and re-arrest, “[t]here is no constitutional right to be arrested.”
Hoffa v. U.S., 385 U.S. 293, 310 (1966). Plaintiff's TAC
provides no factual assertion nor points to evidence of actual
prejudice. Instead, Plaintiff offers the Court only conclusory
statements concerning an inexplicable surveillance, which
does not establish actual prejudice. In this district, courts
have generally found “actual prejudice” to mean the “loss
of documentary evidence or the unavailability of a key
witness.” Santiago, 987 F. Supp. 2d at 485. In Santiago, the
defendant was accused of committing a shooting and one of
the only witnesses present at the shooting who could offer
testimony that undermined the Government's theory of the
case went missing. Id. There, the court held that the loss of
this key witness provided proof of actual prejudice. Similarly,
in United States v. Gross, the Defendant was accused of
making false statements in connection with a mortgage
application. There, it was the loss of documents that contained
substantial evidence about who made those false statements
and when those statements were made that provided proof of
actual prejudice. 165 F. Supp. 2d 372 (E.D.N.Y. 2001). No
showing has been made to this Court that Plaintiff's alleged
surveillance prejudiced him such that he could not receive
a fair trial Accordingly, the Court dismisses with prejudice
Plaintiff's Section 1983 claims for unreasonable delay. 2
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B. Defendant Officers Lyons, Colon, Kralik, VanCura,
and Investigating Officer Budnick Are Responsible for
Plaintiff's Procedural Due Process Violations in Their
Individual Capacity
Plaintiff alleges Defendants violated his due process rights
through his arrest, denial of hearings before a Court, and
failure to provide Defendant counsel throughout his re-
imprisonment. (TAC at ¶¶ 83-95.) In its September 25,
2023 Opinion, this Court previously dismissed this claim
without prejudice because Plaintiff failed to plead personal
involvement of Defendants. (ECF No. 88.) Accordingly, this
Court now dismisses the Plaintiff's claim with prejudice.
The Due Process Clause provides freedom of bodily restraint
and confinement as a guaranteed protection under the
Constitution. The Bd. of Regents v. Roth, 408 U.S. 564,
572 (1972). As such, “[f]reedom from bodily restraint has
always been at the core of the liberty protected by the Due
Process Clause from arbitrary government action.” Hamdi v.
Rumsfeld, 542 U.S. 507, 529 (2004). In order to bring a due
process claim, “a plaintiff must plead that each Government-
official defendant, through the defendant's own individual
actions, has violated the Constitution.” Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009). Under Section 1983, it is not enough
to name the Defendant Officers, the Plaintiff must “plead and
prove the elements of the underlying constitutional violation
directly against the official[s].” Tangreti v. Bachmann, 983
F.3d 609, 620 (2d Cir. 2020). Further, a plaintiff cannot
“lump[ ] all the defendants together in each claim and
provid[e] no factual basis to distinguish their conduct.”
Eisenberg v. Cnty. of Westchester, No. 21-CV-4507 (VB),
2022 WL 768311, at *2 (S.D.N.Y. Mar. 14, 2022) (quoting
Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001)
(summary order)).
Plaintiff's TAC alleges Defendant Officers violated his due
process rights. However, Plaintiff fails to allege each of their
particular involvement in his constitutional deprivation. The
TAC asserts “[t]he individually named County Defendant
Officers (Lyons, Kralik, Colon, VanCura and Budnick)
collectively caused the blatant disregard for Plaintiff's
procedural due process rights.” (TAC at ¶ 84.) The Plaintiff
further states the officers initiated criminal proceedings
against Plaintiff without probable cause, acted with malice
in effecting the arrest, and left the Plaintiff without any
procedural due process following his arrest. (TAC at ¶ 85.)
First, it has been ruled that the County Defendants had
probable cause to arrest the Plaintiff. (ECF No. 88 at 18).
Second, on the issue of [for] malice in effectuating the arrest,
the Court previously ruled that Defendants had probable
cause to arrest Plaintiff. Id. Finally, the Plaintiff does not
provide any factual basis in the TAC that details how these
Officers were directly involved in his alleged deprivations
to see a sentencing court upon his arrest, to be presented
before the court following his transfer from Rockland County
Jail, or his lack of legal counsel. “Without more, such
vague, conclusory allegations do not satisfy the personal
involvement standard.” Collins v. City U. of New York, No.
21 CIV. 9544 (NRB), 2023 WL 1818547, at *6 (S.D.N.Y.
Feb. 8, 2023). Such complaints that “essentially regurgitate[ ]
the personal involvement standard, without offering any facts
indicating that, or how, an individual in a supervisory role
was personally involved in a constitutional violation, cannot
withstand dismissal. Id. (quoting Davis v. County of Nassau,
355 F. Supp. 2d 668, 677 (E.D.N.Y. 2005)).
*7 In conclusory fashion, Plaintiff alleges the County
Defendants individually and collectively caused “blatant
disregard for the Plaintiff's procedural due process rights”
and the duty to present the Plaintiff before the court post-
arrest “rested unequivocally” on their shoulders. (TAC at ¶¶
84, 89.) Plaintiff fails to provide any factual reasoning as
to why or how Defendant officers were responsible for his
continued deprivation. (Id. at 3, 13.) For these reasons, the
Court dismisses the Plaintiff's claims with prejudice.
CONCLUSION
For the above-mentioned reasons, the County Defendants'
motion to dismiss is GRANTED. Plaintiff's claims of
substantive due process violations for unreasonable search
and seizure and unreasonable delay related to the first cause
of action against Defendant Officers Lyons and Kralik are
dismissed with prejudice. Plaintiff's claims of procedural
due process violations related to the second cause of action
against Defendant Officers Lyons, Kralik, Colon, VanCura,
and Budnick are dismissed with prejudice. The Clerk of Court
is directed to terminate Defendant Officers Lyons, Kralik,
Colon, VanCura, and Budnick.
Plaintiff's claims of substantive due process for unrelated
special conditions of parole and violations of freedom of
association related to the third cause of action against
Defendant Parole Officers Ryan and Johnson Richardson
remain. Plaintiff's claims of substantive due process
violations for unlawful search and seizure related to the fourth
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cause of action against Defendant Parole Officer Diedre Ryan
remain. Defendants Ryan and Richardson are directed to file
an answer to the two remaining causes of action in the Third
Amended Complaint by March 26, 2025, and the parties are
directed to confer and file a Case Management Plan and
Scheduling Order (blank form attached) by April 9, 2025.
Attachment
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Rev. Jan. 2012
Plaintiff(s),
- against -
Defendant(s).
______ CV ________ (NSR)
CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER
This Civil Case Discovery Plan and Scheduling Order is
adopted, after consultation with counsel, pursuant to Fed. R.
Civ. P. 16 and 26(f):
1. All parties [consent] [do not consent] to conducting
all further proceedings before a Magistrate Judge,
including motions and trial, pursuant to 28 U.S.C. §
636(c). The parties are free to withhold consent without
adverse substantive consequences. (If all parties consent,
the remaining paragraphs of this form need not be
completed.)
2. This case [is] [is not] to be tried to a jury.
3. Joinder of additional parties must be accomplished by
_______________________.
4. Amended pleadings may be filed until
_______________________.
5. Interrogatories shall be served no later than
_______________________, and responses thereto
shall be served within thirty (30) days thereafter. The
provisions of Local Civil Rule 33.3 [shall] [shall not]
apply to this case.
6. First request for production of documents, if any, shall
be served no later than _______________________.
7. Non-expert depositions shall be completed by
_______________________.
a. Unless counsel agree otherwise or the Court so orders,
depositions shall not be held until all parties have
responded to any first requests for production of
documents.
b. Depositions shall proceed concurrently.
c. Whenever possible, unless counsel agree otherwise or
the Court so orders, non-party depositions shall follow
party depositions.
8. Any further interrogatories, including expert
interrogatories, shall be served no later than
_______________________.
9. Requests to Admit, if any, shall be served no later than
_______________________.
*8 10. Expert reports shall be served no later than
_______________________.
11. Rebuttal expert reports shall be served no later than
_______________________.
12. Expert depositions shall be completed by
_______________________.
13. Additional provisions agreed upon by counsel are
attached hereto and made a part hereof.
14. ALL DISCOVERY SHALL BE COMPLETED BY
_______________________.
15. Any motions shall be filed in accordance with the
Court's Individual Practices.
16. This Civil Case Discovery Plan and Scheduling Order
may not be changed without leave of Court (or the
assigned Magistrate Judge acting under a specific order
of reference).
17. The Magistrate Judge assigned to this case is the Hon.
_______________________.
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Aurecchione v. Falco, Slip Copy (2025)
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18. If, after entry of this Order, the parties consent to trial
before a Magistrate Judge, the Magistrate Judge will
schedule a date certain for trial and will, if necessary,
amend this Order consistent therewith.
19. The next case management conference is scheduled for
_______________________, at ____________. (The
Court will set this date at the initial conference.)
SO ORDERED.
Dated: White Plains, New York
_______________________
_______________________
Nelson S. Román, U.S. District Judge
All Citations
Slip Copy, 2025 WL 779278
Footnotes
1 The Court issues this Amended Opinion & Order to add clarity to which claims remain and which claims have
been dismissed. There have been no substantive changes to this Amended Opinion & Order from the Court's
original Opinion & Order issued on March 5, 2025 beyond the specificity of dismissals in the Conclusion.
2 The Court refrains from ruling on the County Defendants' qualified immunity argument. Given Plaintiff's
insufficient pleadings, the Court is unable to resolve the defense at this early stage in the proceedings. See
Chamberlain Est. of Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Brandon v. Kinter, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 2382637
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Chamma K. BRANDON, Plaintiff,
v.
Suzanne KINTER, Lawrence Bedard, Robert
Webb, Thomas Perry, Eric Blaise, Kevin
Laurin, and Margaret Clancy, Defendants.
9:13-cv-00939 (BKS/ATB)
|
Signed March 6, 2023
Attorneys and Law Firms
For Plaintiff: William S. Nolan, Gabriella R. Levine, Jennifer
M. Thomas, Whiteman Osterman & Hanna LLP, One
Commerce Plaza, Albany, New York 12260.
For Defendants: April J. Laws, Johnson & Laws, LLC, 646
Plank Road, Suite 205, Clifton Park, New York 12065.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
I. INTRODUCTION
*1 Plaintiff Chamma K. Brandon brings this action against
the above-named Defendants, employees of Clinton County
Jail (“CCJ”), under 42 U.S.C. § 1983, alleging that during
his 2012 incarceration, he was served meals containing
pork in violation of his Muslim diet and retaliated against
for filing grievances regarding his religious and medical
diets. (Dkt. No. 17). Plaintiff pressed two claims at trial:
(1) that Defendants Corrections Lieutenant Kevin Laurin,
Registered Nurse and Healthcare Coordinator Suzanne
Kinter, Corrections Sergeant Margaret Clancy, Food Service
Manager Lawrence Bedard, and Corrections Officers Robert
Webb and Thomas Perry violated Plaintiff's right to the free
exercise of religion under the First Amendment; and (2) that
Defendants Lt. Laurin, Nurse Kinter, Sgt. Clancy, Bedard,
and Corrections Officer Eric Blaise retaliated against Plaintiff
for filing meal-related grievances in violation of the First
Amendment. (Id.). The Court held a three-day bench trial at
which Plaintiff and all Defendants, except Margaret Clancy, 1
testified.
After carefully considering the trial record, the credibility of
the witnesses, and the submissions of the parties, 2 the Court
finds Plaintiff proved by a preponderance of the evidence
that: (1) Lt. Laurin violated Plaintiff's First Amendment
right to the free exercise of religion; (2) Officers Webb
and Perry are entitled to qualified immunity; (3) Lt. Laurin
and Nurse Kinter retaliated against Plaintiff for engaging
in conduct protected by the First Amendment; and (4)
Plaintiff is entitled to compensatory damages, and punitive
damages are warranted. The Court further finds that Plaintiff
failed to prove by a preponderance of the evidence: (1) his
free exercise claims against Nurse Kinter, Sgt. Clancy, and
Bedard; and (2) his retaliation claims against Sgt. Clancy,
Officer Blaise, and Bedard. The following constitutes the
Court's findings of fact and conclusions of law.
II. FINDINGS OF FACT
A. The Individual Defendants
Lt. Laurin was a “Corrections Lieutenant at CCJ whose duties
included supervising corrections sergeants and the day-to-day
activities throughout CCJ, as well as overseeing the grievance
program at CCJ.” (Joint Pre-Trial Stipulation, ¶ 3(a)(vi)).
Nurse Kinter, a registered nurse, “was the Jail Healthcare
Coordinator whose duties included supervising Registered
Nurses at CCJ and overseeing the medical treatment of
inmates detained at CCJ.” (Id. ¶ 3(a)(viii)). Sgt. Clancy
“was a Corrections Sergeant at CCJ whose duties included
supervising Corrections Officers [and] documenting reports,”
and assisting Lt. Laurin in overseeing the grievance program.
(Id. ¶ 3(a)(vii); Trial Transcript, at 70 (“T. 70”)). Bedard
“was the Food Service Manager at CCJ whose duties included
supervising the cooks in the kitchen to make sure food was
provided in compliance with the menu, recipes, and special
diets that the inmates have on file with the kitchen.” (Joint
Pre-Trial Stipulation, ¶ 3(a)(v)). Officers Webb, Perry, and
Blaise were “Corrections Officer[s] whose duties included
providing for the safety, security and order of the facility.” (Id.
¶¶ 3(a)(ix–xi)).
B. Religious and Medical Diets
*2 CCJ is a 300-bed facility that housed approximately
210 inmates in 2012, the time period relevant to this
action. (T. 284). During the booking and intake process, the
booking officer documented each inmate's religion, if any,
for the purpose of ascertaining whether the inmate required
a religious diet. (T. 293). If so, the booking officer would
fill out a “Special Diet Notification” form for a religious
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diet and “physically bring that [form] to the kitchen.” (Dkt.
No. 250, ¶ 12; T. 293–94, 446). A CCJ lieutenant, sergeant,
and grievance coordinator were also authorized to fill out a
Special Diet Notification form documenting an inmate's need
for a religious diet. (Pl.’s Ex. 8; Defs.’ Ex. 21; T. 343). 3
CCJ medical staff and facility nurses were responsible for
approving medical diets and for notifying the kitchen of an
inmate's need for a medical diet by sending a Diet Notification
form specifying the medical diet to the kitchen. (T. 448). 4
C. CCJ Kitchen and Meal Service
Inmates at CCJ received all their meals on trays that the
kitchen staff delivered to them in their housing units, or
“pods.” (T. 296–97). Unless the kitchen had been notified of a
medical or religious diet, each inmate received a “regular” or
“general population” meal. (T. 455). In addition to the general
population diet, the CCJ kitchen prepared “approximately
ten” special diets, including diabetic, lactose free, low fat/
low cholesterol, low sodium, gluten-free, and “no-pork” or
religious diets. (Id.). Each day, to ensure each inmate received
“the proper meal in [the] right area,” Bedard, as food service
manager, reviewed the menu and the inmate housing report
and prepared a list with each inmate's name, special diet, if
any, and the inmate's pod. (T. 441–42). Bedard maintained
inmate files and would place all special diet slips—religious
or medical—in the inmate's file. (T. 293, 461).
Bedard, several cooks, and up to seven inmates worked in the
kitchen. (T. 449). The cooks were responsible for making the
meal designated by the menu that day—“whatever soup it is
for the day, whatever sandwiches for that day,” for example.
(T. 443). There was a “food line” in the kitchen, which Bedard
described as “a conveyer-type line where the trays are placed
on the conveyer from one end to the other end as the food
is being served.” (T. 443). The cooks were responsible for
placing the “main course” and other food items on the trays.
(T. 444, 451). Bedard was “not always on [the] food line,”
but he would, at times, work on the food line serving small
items such as condiments, fruit, or a package of cookies.
(T. 451). The inmate workers also served on the food line,
and one inmate worker was “at the very end to put the trays
into the cart” for delivery to the designated pod. (T. 443).
Prior to each meal, “sticky note tabs” were prepared for each
inmate receiving a special diet. (T. 444). The sticky notes
listed the inmate's name and type of diet and were first placed
above the food line and then onto the meal tray before the
tray was placed onto the cart for delivery. (T. 444 (Bedard
testifying that if the inmate had a religious diet, for example,
that inmate's name and “no pork” would be on the tray's
label)).
*3 Once the trays were placed onto the cart, a corrections
officer and inmate worker would escort the cart to “particular
pods.” (T. 43). The corrections officer in the pod would alert
the inmates that meals had arrived and divide the inmates into
two lines—“regular gen pop” and “special diet persons”—to
receive their trays. (T. 44). If an inmate complained that his
meal did not comply with a special diet, the pod corrections
officer could check the inmate's file, a copy of which was
contained “at the podium” in the inmate's pod, to verify the
diet. (T. 487–88). The corrections officer could also call the
kitchen, or send the tray back to the kitchen where Bedard or
a cook would inspect the tray and, if the tray was not right,
replace the incorrect item or the entire meal. (T. 451, 487–88).
D. Plaintiff
1. Religious Background
Plaintiff, a born Muslim, grew up attending religious services
with his father. (T. 35). The Quran prohibits Muslims from
eating pork. (T. 38). Eating pork is “haram,” “a sin,” for
which “you can be placed in hellfire.” (T. 39); see Brandon
v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019) (“For Muslims who
follow Islamic dietary laws, consuming pork is a sin at any
time, regardless of whether the consumption occurs during a
holiday or not” and “[t]he Quran expressly commands against
it.” (citing Quran 2:173)). The practice of Islam also prohibits
the eating of pork products, or “anything associated” with
pork. (T. 39). For this reason, not only is the handling of pork
prohibited, but a plate of food containing pork and non-pork
products is considered contaminated and inedible. (T. 39).
2. Plaintiff Booked at CCJ -
January 2012 and March 2012
Plaintiff was booked into CCJ twice during 2012. During all
time periods relevant to this action, Plaintiff was a pretrial
detainee. Plaintiff's first stay at CCJ was from January 14,
2012 until March 2, 2012. (Pl.’s Ex. 5; Defs.’ Ex. 2; T. 42,
191). No religion is noted on Plaintiff's January 12 booking
sheet. (Pl.’s Ex. 5; Defs.’ Ex. 2). “On January 14, 2012,
Plaintiff was issued a ‘no shellfish diet’ at CCJ.” (Joint
Pre-trial Stipulation, ¶ 3(a)(xii)). Plaintiff did not request
religious, no-pork meals during this stay. (T. 41–42). If
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Plaintiff received a meal with pork in it, he did not complain
but he would not eat the meal, either. (T. 41–42). Some form
of pork, i.e., sausage, ribs, salami, bologna, was featured on
the menu for the general population diet two to four times
each week. (T. 48–49, 72–73; Pl.’s Exs. 1, 2).
On March 2, 2012, Plaintiff was “released,” though, for
reasons that are not relevant here, he was never “physically”
“released” from the facility, and he was, instead, arrested and
booked into CCJ a second time. (T. 42, 191). Plaintiff's March
2 booking sheet lists his religion as Muslim. (Defs.’ Ex. 3).
However, the booking officer, who is a not a defendant in
this case, did not bring a religious “no-pork” diet slip to the
kitchen after Plaintiff's booking, or at any time thereafter.
(T. 344, 371). Because Plaintiff identified as Muslim when
he was rebooked on March 2, 2012, he should have had a
religious diet slip forwarded to the kitchen as of March 2,
2012. (T. 370–71).
3. Plaintiff's Requests for Muslim
Diet – March to August 2012
“On March 23, 2012, Plaintiff was issued a ‘no tomato or
tomato product diet,’ ” because he has severe acid reflux.
(Joint Pre-Trial Stipulation, ¶ 3(a)(xiii); T. 46). “On May 21,
2012, Plaintiff was issued a ‘low fat, low cholesterol’ diet”
because he had high cholesterol. (Joint Pre-Trial Stipulation,
¶ 3(a)(xiv); T. 46).
In March, April, and May 2012, Plaintiff received meals
with pork two to four times each week. (T. 49, 76–77). If
Plaintiff received a meal tray with pork, he did not eat it;
he would either give it away, throw it away, or trade with
another inmate. (T. 75). If Plaintiff could not consume a food
tray because it contained pork, and if he had “commissary,”
he “would “eat commissary” though it “had nothing to
really substitute” for a meal and “[i]t was just junk.” (T.
75, 79). If he did not have commissary food, he “just
wouldn't eat anything.” (T. 75). As a result of missing meals,
Plaintiff had headaches, fatigue, dizziness, and confusion, and
was frustrated. (T. 79). Plaintiff experienced the “angst of
knowing” that he was not going to eat. (Id.).
*4 In May 2012, Plaintiff began complaining to shift
corrections officers, who knew he was Muslim and that
he was “not supposed to get pork.” (T. 78). One officer
responded by suggesting that Plaintiff “write a medical,” (id.),
and told him that the medical ward “would address” his
religious dietary needs. (T. 80). On May 28, Plaintiff filed a
grievance stating:
I was denied my meal. I'm on a special
diet and the cooks [sic] refused to
make the proper accommodations to
my diet. The housing unit officer told
the trustee to obtain the proper special
diet meal and that was to no avail.
The housing unit officer called the
kitchen in a further attempt to obtain
my special diet me[al] and resulted in
the cook's absolute refusal.
(Pl.’s Ex. 10). 5 Although it is not referenced in the grievance,
Defendants acknowledge that on May 28, Plaintiff stated in
writing to CCJ that he was Muslim. (Dkt. No. 250, ¶ 77; T.
202–03).
On June 21, Plaintiff submitted a “Sick Call Request”
inquiring about a knee brace and requesting that a “no
pork order” be sent to the kitchen and placed in his folder,
explaining that he did “not eat pork yet [was] still being served
pork during meals.” (Pl.’s Ex. 11). Medical staff responded:
“given knee brace.” (Id.). Plaintiff received no response
regarding his request for a no-pork diet and continued to
receive meals with pork. (T. 82).
On or about July 4, Plaintiff sent another Sick Call Request.
(Pl.’s Ex. 12). In it, Plaintiff stated that his inmate folder
reflects that he is to have “no fish or shellfish” due to “allergy”
and requests that the “kitchen” be notified. (Id.). Although the
remainder of the request is largely illegible, it appears to seek
a no-pork product diet. (Id.). The response, from a nurse who
is a not a defendant in this case, stated: “Done—for no fish/
shellfish. Need to ask security staff to submit diet slip for pork.
Medical does not do religious diets.” (Id.). When Plaintiff
received this response, he showed it to a security officer who
said: “we don't do that. We don't do religious diets, that's a
medical thing.” (T. 83).
On July 6, Plaintiff submitted a third Sick Call Request. (Pl.’s
Ex. 13). He wrote: “I've made several attempts to have my
meals altered to a no pork or pork products diet. I'm a Muslim
and do not consume anything associated with pork. I told
the ‘Security Staff’ [illegible] they directed me to consult
medical about this matter. Please make the proper adjustment
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to my diet.” (Id.). On July 9, Nurse Kinter responded: “You
will have to speak with jail Sgt. or Lt.” (Id.). Nurse Kinter
explained at trial that she referred Plaintiff to the jail sergeant
or lieutenant because she had always been told by “security ...
all the way up to the major,” that “nurses were not allowed
to do religious diets.” (T. 389). Plaintiff continued to receive
meals with pork in July, August, and September 2012. (T. 86–
87). 6
4. Plaintiff's Muslim Diet Grievances and
Lt. Laurin's Involvement – September 2012
*5 On September 15, 2012, Plaintiff filed a grievance
complaining that he was being given trays with food he
could not eat due to his medical conditions and that were
inconsistent with his “various restrictive diets.” (Pl.’s Ex. 14).
He further stated that “this is one of several grievances I've
made but to no avail.” (Id.). Plaintiff sought a:
complete overhaul of the kitchen staff.
This is one of many complaints which
seems to go unresponded. I've been
here for more than 9 mths [sic] and at
least 1 time per week there has been
a problem with my meals. I've filed
several grievances, made countless
complaints to shift officers. Still this
problem still reoccurs.
(Id.). The grievance's “Summary of facility staff attempts
to resolve” stated: “Sent tray back to kitchen. Talked with
kitchen staff.” (Id.) The staff individual, who is not a
defendant here “stated that everything on inmate Brandon's
tray coinsided [sic] with inmate Brandon's diet. The tray was
sent back down to D-Pod and Inmate Brandon took the tray
and asked for a grievance.” (Id.).
On September 24, Plaintiff filed a grievance stating that
he “can not/do[es] not eat pork or any pork products nor
tomatoes” but that he was served a BLT for lunch and that
when he “instructed the server to produce another tray,” the
server later “returned with the same tray stating the kitchen
will not accommodate.” (Pl.’s Ex. 15). As to the “[a]ction
requested,” Plaintiff wrote that “stating some sort of action
to be conducted seems useless” because he had been in
CCJ “for 250+ days and continuously receive[d] food” he
could not eat. (Id.). The grievance's “Summary of facility
staff attempts to resolve” stated: “called the nurse to see
what the inmate ‘Brandon’ couldn't eat and she stated he
is on a low fat low sodium diet and that the inmate is
allergic to tomatos [sic].” (Id.). Plaintiff did not receive a
replacement for the September 24 lunch. (T. 93). Later that
day, Plaintiff filed a second grievance: “Again, I'm being
denied a dinner (meal). I do not/can not eat pork or pork
products or tomatoes. For dinner I was served a salad which
had tomatoes & bacon strips.... The officer instructed the
server to make accommodations & the server returned with
the same tray after picking out the tomatoes.” (Pl.’s Ex. 16).
Under “Action requested by the grievant,” Plaintiff wrote:
“I've made countless grievances to what seems to be a useless
process. I've went many times without having a meal because
of the kitchen's seemingly inability to make simple food
accommodations.” (Pl.’s Ex. 16). The grievance's “Summary
of facility staff attempts to resolve” stated: “I called the nurse
to see what the inmate can't have and she stated no tomatoes
or low fat low salt items.” (Id.).
On or about September 26, 2012, Sgt. Clancy, who had
been handling Plaintiff's grievances, went to Lt. Laurin with
a concern about the number of grievances Plaintiff had
submitted about meals. (T. 302, 306–07 (Lt. Laurin testifying
that he received Plaintiff's grievance on September 26 and that
he began to investigate on September 26 or 27)). Sgt. Clancy
“had tried to explain [to Plaintiff] that the meals that [Plaintiff]
was receiving were his meals.” (T. 302). When Lt. Laurin and
Sgt. Clancy investigated, they found Plaintiff had a medical
diet in place—low fat, low sodium, no fish, no shellfish, no
tomatoes, and no tomato products. (Id.). Sgt. Clancy also told
Lt. Laurin that Plaintiff was stating that “he wasn't getting his
Muslim no pork, no pork products diet.” (T. 303). Lt. Laurin
“dismissed Sergeant Clancy from doing the grievances” and
took them over himself because there was “a problem and
[he] needed to find out where the problem was” and see if
he “could cure it.” (T. 304). On either September 26 or 27,
2012, Lt. Laurin “went down physically” to the kitchen and
he and Bedard went through Plaintiff's file together. (T. 305–
06). Lt. Laurin explained that “[t]he paper that normally has
religious diets that are generated by security staff is a little
bit smaller” and he “wanted to make sure that it wasn't being
missed.” (Id.). They “did not find a religious slip” in Plaintiff's
file. (Id.).
*6 Lt. Laurin testified that on either September 9 or 27, he
verbally notified the kitchen that Plaintiff was to be on a “no
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pork or no products” diet. (T. 307, 333–34). The Court does
not credit this testimony. Lt. Laurin could not recall who he
told about Plaintiff's diet. (T. 307 (Lt. Laurin testifying that
he “would have to go to Bedard” but that he did not “know
exactly” who he talked to, only that he “talked to somebody
down in the kitchen”)). Nor could Lt. Laurin accurately
state on what date he told the kitchen of Plaintiff's no pork
diet, (compare id. (Lt. Laurin testifying that he notified the
kitchen on September 26 or 27); with T. 333–34 (Lt. Laurin
testifying that he verbally notified the kitchen on September
9)). 7 Indeed, Lt. Laurin's representations regarding when the
kitchen was notified—verbally or in writing—of Plaintiff's
religious diet have varied greatly in this case. For example,
at trial, Lt. Laurin acknowledged that he previously filed an
affidavit in this matter, in support of Defendants’ motion
for summary judgment, that stated: “due to plaintiff's March
2012 declaration that he was a Muslim, plaintiff did have a
notification placed in his file that provided him a diet with
no pork or no pork products.” (T. 372 (citing Pl.’s Ex. 67
(marked for identification))); see infra Section II.D.6. Lt.
Laurin further acknowledged that, in that affidavit, he referred
to “Exhibit A,” a copy of the Special Diet Notification form
that the Court has found was not actually given to the kitchen
until October 5, 2012. See infra Section II.D.6. The Special
Diet Notification form that Lt. Laurin cited in his affidavit
is in all respects identical to the Special Diet Notification
form that was given to the kitchen on October 5, 2012
except that the date (“10/5/12”) is missing. 8 (T. 374–75).
Moreover, not only was Lt. Laurin's testimony regarding a
verbal notification to the kitchen not credible, but Bedard 9
testified that no one at CCJ told him that Plaintiff should not
be served pork or pork products, (T. 469), stated that it was
not the general practice for anyone at CCJ to tell him orally
about an inmate's medical or religious restrictions, (T. 468),
and that he received Plaintiff's religious diet notification on a
form, (T. 470).
*7 On or around September 27, Lt. Laurin went to Plaintiff's
housing unit to discuss what was “going on, in terms of”
Plaintiff's “religious diet.” (T. 91, 97, 304). Lt. Laurin told
Plaintiff he was aware Plaintiff is Muslim and that Plaintiff
was receiving pork meals and acknowledged “it's wrong, but
he said he's going to help.” (T. 91). Lt. Laurin told Plaintiff he
was “going to look into it and to address these matters.” (T.
91–92).
On September 27, Lt. Laurin, as grievance coordinator,
issued decisions regarding Plaintiff's September 15 and two
September 24 grievances. (Pl.’s Exs. 14, 15, 16). As to the
September 15 grievance, Lt. Laurin wrote: “Kitchen has
been informed as of 9/27/2012 that you are low fat, low
cholesterol, no tomatoes or tomatoe [sic] products, no fish
or shellfish. They did not have that you were Muslim. You
will get no pork or pork products.” (Pl.’s Ex. 14). As to
the first September 24 grievance, Lt. Laurin wrote: “As of
9/27/12 the kitchen was reviewed [sic] of your diet. Lowfat/
low cholesterol, no tomatoes or tomatoe [sic] products, no
shellfish or fish and that you are Muslim. Kitchen stated that
the bacon is veggie bacon. We will furnish you with a copy of
the ingredients.” (Pl.’s Ex. 15). As to the second September
24 grievance, Lt. Laurin wrote: “Kitchen is aware of your
diet. Bacon is veggie bacon. A copy of the ingredients will
be provided to you. I have advised the kitchen that if you
get a wrong meal that the whole meal will be redone.” (Pl.’s
Ex. 16). Plaintiff never received a copy of ingredients listing
“veggie bacon” and did not recall ever seeing “veggie bacon”
on the menu at CCJ. (T. 94).
On September 29, after issuing the above-referenced
decisions, Lt. Laurin further investigated Plaintiff's
September 15 and 24 grievances. (Pl.’s Exs. 14, 15, 16
(“Grievance Investigation Form”)). Lt. Laurin interviewed
Plaintiff, Nurse Kinter, and Bedard. (Pl.’s Exs. 14, 15, 16).
In his “Summary of findings,” Lt. Laurin wrote: “Inmate
Brandon's diets have been documented by medical and a copy
of Brandon's special deit [sic] was given to the kitchen staff.
Kitchen had not been notified he was Muslim. Kitchen staff
has been advised to correct the diet.” (Pl.’s Exs. 14, 15, 16).
Under “List other relevant information/documentation,” Lt.
Laurin wrote: “A copy of special diets. Has been buying items
in the commissary that he should not have with his diet.” (Pl.’s
Exs. 14, 15, 16).
5. Plaintiff's Medical Diet
Grievances – October 1–3, 2012
Plaintiff filed two grievances on October 1, 2012. In the first,
Plaintiff wrote that he was “served a sandwich which had
tomatoes in it.” (Pl.’s Ex. 26). He explained that because of
his “medical conditions, he cannot consume any tomatoes/
tomatoes products.” (Id.). In the second October 1 grievance,
Plaintiff complained that he was “being denied a lunch tray”
that complied with his medical special diet. (Pl.’s Ex. 27).
Under “Summary of facility staff attempts to resolve” an
officer wrote: “called kitchen – spoke with kitchen boss
Bedard – new sandwich was being made ... brought down to
inmate.” (Id.). Lt. Laurin subsequently wrote: “Had a meeting
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with the kitchen cook manager and explained no more
mistakes if there are mistakes they are to be corrected.” (Id.).
On October 3, Plaintiff filed a grievance stating that he
“cannot eat/consume tomato or tomato products due to my
medical conditions which was cleared by medical staff. I was
served tomato soup in my lunch tray. Having been served
tomato soup denies me a meal.” (Pl.’s Ex. 28). The grievance's
“Summary of facility staff attempts to resolve” stated that:
“the tomato alternative soup was the 3 bean salad in a separate
bowl on the meal tray. According to the kitchen all contents of
tray was compliant to the diets prescribed to inmate Brandon
by medical.” (Id.). 10
6. Special Diet Notification Form for Religious
Diet Filed with Kitchen – October 5, 2012
*8 On October 5, 2012, Lt. Laurin “went down to booking,
filled out the [religious meal] slip [him]self, put the date on
it, brought it down to the kitchen and had them put it right
directly in [Plaintiff's] file and mark him as a Muslim, no pork/
no pork products.” (T. 306; Pl.’s Ex. 8) Lt. Laurin circled the
section of the form for a “Religious” diet and wrote “Muslim
no pork or pork products”; he signed the from and dated it
“10/5/12.” (Pl.’s Ex. 8); see Figure 1.
Figure 1: Defendants’ Exhibit 21 –
Dated Special Diet Notification Form
Lt. Laurin testified that he did not know why he did not
provide the “religious slip” earlier and instead waited until
October 5. (T. 306). The Court finds that the kitchen was first
notified about Plaintiff's religious diet on October 5, 2012, in
this Special Diet Notification form. The Court further finds
that from September 26 to October 5, Plaintiff continued to be
served pork meals and received approximately six pork meals
during that week-and-a-half time period. (Pl.’s Exs. 1, 2 (CCJ
menus showing pork served two to four times weekly)).
7. Meal-Related Grievances – October 9–15, 2012
On October 9, 2012, Plaintiff filed a grievance regarding a
meal he received in September:
I've been served & have consume[d] food items I'm not
suppose to consume due to religious beliefs. Through
discussion on today's lunch trey [sic] with the shift officer
“Coocher” about it containing a ham sandwich. The officer
stated it is not ham it is turkey & continued to state, the only
pork product served to inmates is the ham steak. He was
told it contains pork from the kitchen staff. On September
9th, I was served ham steak for dinner. When I presented
it to the shift officer he told me it was made of turkey
and no pork/pork [products] ... were included in the ham
steak. He continued to state the kitchen doesn't use any
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pork products specifically because of the variety of inmates
having religious constraints against pork/pork products.
I need someone to get to the bottom of this. 2 different
officers making 2 contrary statements.
(Pl.’s Ex. 18). Under “Summary of facility staff attempts to
resolve” is written:
I talked to Michelle in the kitchen and
she told me that until recently they had
nothing stating that inmate Brandon
was a no pork diet. So it is very
likely that inmate Brandon recieved
[sic] pork on Sept. 9. She also stated
that inmate Brandon will no longer
receive [sic] pork due to the fact that
they now have documentation.
(Id.).
On October 10, at approximately 4:30 p.m., Plaintiff filed
a grievance stating that he was “served a chef salad with
strips of ham.” (Pl.’s Ex. 20; Defs.’ Ex. 9). The grievance's
“Summary of facility staff attempts to resolve” states the
corrections officer had the tray returned to the kitchen for
replacement. (Pl.’s Ex. 20; Defs.’ Ex. 9). Fifteen minutes later,
at approximately 4:35 p.m., Plaintiff filed a second grievance
stating that instead of replacing the tray in its entirety, the
kitchen removed the strips of ham and sent back the same
tray. (Pl.’s Ex. 19; Defs.’ Ex. 8; Pl.’s Ex. 20; Defs.’ Ex. 9).
The second grievance's “Summary of facility staff attempts
to resolve” states that “Sgt. Gregory” “went [to] the kitchen
staff to discuss the tray and that no pork products were
to be placed on or near the meal. The cook informed Sgt.
Gregory the meat was turkey ham and a replacement tray
would not be made.” (Pl.’s Ex. 19; Defs.’ Ex. 8). Lt. Laurin
investigated these grievances and falsely responded: “You
have not received pork or pork products from the kitchen for
a meal since 9/9/2012.” (Pl.’s Ex. 19; Defs.’ Ex. 8). Lt. Laurin
further stated that “the ham you receive is turkey ham sliced
or cubed. Your Muslim diet is being served correct. I have
included the ingredient label to you.” (Pl.’s Ex. 19; Defs.’ Ex.
8). Lt. Laurin made a copy of the turkey ham label to show
Plaintiff “that it wasn't a pork product, even though it looks
like pork.” (T. 318; Defs.’ Ex. 1).
*9 On October 11, Plaintiff filed a grievance seeking copies
of his food grievances. 11 (Pl.’s Ex. 34). Lt. Laurin's response
stated: “The foil request I have given you should give you
the information you are requesting.” (Id.). In a decision
dated October 25, Lt. Laurin stated that it “has always
been the practice of the facility to charge 25 cents for any
requested copies” and that Plaintiff would receive a copy of
his grievances “at no charge when the grievance is accepted
or is appealed.” (Id.).
On October 14, Plaintiff submitted a second grievance
seeking copies of past food grievances. (Pl.’s Ex. 35). On
October 15, Plaintiff filed two grievances. 12 (Pl.’s Exs.
36, 38). One of the grievances sought copies of past food
grievances 13 and the other complained that the peanut butter
that was served with his breakfast was “high on cholesterol”
and asserted that he needed his “restrictive diets to be
followed.” (Pl.’s Exs. 36, 38).
8. Medical Diets Revoked – October 15–16, 2012
Lt. Laurin had noted during his September 29 investigation
into Plaintiff's grievances that Plaintiff had “been buying
items in commissary that he should not have with his
diet.” (Pl.’s Exs. 14, 15, 16). “[E]arly in October,” after
receiving “an awful lot of grievances from [Plaintiff]
that just wouldn't even slow down,” Lt. Laurin requested
Plaintiff's commissary receipts. (T. 326–27 (explaining that
the grievances “were just one right after another, so we
have an issue”); see also Defs.’ Ex. 22 (commissary receipts
“reprinted on 10/02/2012”)). Lt. Laurin testified that his
purpose in requesting the receipts was “to look over the items
[Plaintiff] was purchasing and to see if it was complying with
his diet.” (T. 327). Upon reviewing Plaintiff's commissary
slips, Lt. Laurin noted that “[t]here was some items that [he]
felt were contradictory to [Plaintiff's] low sodium/low fat
diet,” (id.), including “[r]amen [chili] soup,” which contained
tomato products; “squeeze cheese;” “mac and cheese;” and
“nutty buddy bars.” (T. 211, 327).
On October 15, Lt. Laurin went to Plaintiff's pod to speak
with Plaintiff about his “various grievances” and commissary
purchases. (T. 113–14, 328). Lt. Laurin “started ... yelling”
and asked Plaintiff “to explain” his commissary purchases
—Lt. Laurin asked Plaintiff what the “sense” was of Lt.
Laurin and other CCJ officials “putting in all this effort”
to respond to “all [Plaintiff's] grievances” if Plaintiff was
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“turning around and purchasing” “oatmeal cream pies and
nutty bars in commissary?” (T. 113–14, 328–29). Plaintiff
responded that “sometimes I don't eat anything since I'm
not fed anything, so I have to eat something.” (T. 115). Lt.
Laurin testified that he understood from their discussion of
the commissary receipts that Plaintiff had “traded or bartered”
commissary items; although Lt. Laurin acknowledged that
Plaintiff did not expressly say so. (T. 328–29). Lt. Laurin
testified that if Plaintiff had admitted this he would have been
“written up” for violating CCJ rules. (Id.). Plaintiff had never
been questioned about his commissary purchases before. (T.
115).
*10 After speaking with Plaintiff, Lt. Laurin went to Nurse
Kinter to show her the commissary receipts. (T. 329). Lt.
Laurin wanted Nurse Kinter “to be aware that [Plaintiff] was
purchasing these items and they weren't compliant with his
low fat/low sodium diet.” (Id.). Lt. Laurin explained that his
job was “just to make” Nurse Kinter “aware” of the items
Plaintiff had been purchasing, and that he had “done this
before in the past” with other inmates. (Id.). When asked for
examples, Lt. Laurin responded: diabetics, individuals who
they had “to put ... on a low sodium diet because they start
retaining fluids,” and “pregnant females,” in an effort “to
keep them on a good healthy diet.” (T. 330). However, Lt.
Laurin acknowledged on cross-examination that CCJ would
not revoke a diabetic or pregnant inmate's medical diet based
on a review of commissary purchases. (T. 357–58).
The following morning, October 16, Plaintiff “was called
to go to sick call.” (T. 115). 14 Plaintiff was escorted to
the medical ward, where he was seen by Nurse Kinter
and Dr. Glen Schroyer, who is not a defendant in this
case. (T. 116–17). Nurse Kinter told Plaintiff that they
were “taking [Plaintiff's] ... medical – – the dietary
restrictions away” because Plaintiff was “not being compliant
with [his] diet.” (T. 118). Plaintiff “immediately” objected
and began asking Dr. Schroyer why Nurse Kinter was
“making these statements” and “how” he was “allowing
this?” (Id.). Dr. Shroyer “didn't say anything” and “shrugged
his shoulders.” (Id.). Regarding the commissary purchases,
Plaintiff told Nurse Kinter that “due to the past instances and
continuous neglect of my dietary restrictions from the kitchen
I never know whether or not I'll receive a meal let alone
a meal I can eat.” (Pl.’s Ex. 40). Plaintiff then said that if
they removed his medical diets he was “not going to just eat
anything” and that he could not eat a regular diet and that he
was “going to write grievances.” (T. 118–19).
Nurse Kinter testified that there were no medical concerns
about removing Plaintiff's low fat/low cholesterol diet
because “his labs had improved at the time when he was here
at the jail” and as it “look[ed] like he wasn't being compliant
with his meals ... we had no concern with Mr. Brandon's
diet at that time.” (T. 437). The “coronary risk evaluation”
labs in the record, however, do not support this testimony.
(Pl.’s Ex. 66). For example, Plaintiff's cholesterol was 255
(high) in May 2012, 259 (high) in August 2012, and 249
(high) on October 3, 2012. (Id.). The other lab results—HDL,
LDL, and triglycerides—showed similarly minor fluctuations
and all remained flagged as high or low. (Id.). Nurse Kinter
was aware that patients with high levels of cholesterol are
at increased risk of heart disease and that patients with acid
reflux can become ill if they eat foods with high acidity,
like tomatoes, but had “[n]o concerns” about that. (T. 419–
20, 440). After reviewing Plaintiff's commissary purchases,
and finding that he “was buying everything that was against
his medical diet,” Nurse Kinter “did a new diet slip to start
the regular diet, no fish, no shellfish diet,” and she “sent it
back down to the kitchen, and then that notification went into
the doctor's folder.” (T. 393). The “Diet Notification” Nurse
Kinter sent to the kitchen is dated October 16, and directed
the kitchen to “Cancel all previous slips” and place Plaintiff
on the “Reg Diet” but “No Shellfish.” (Pl.’s Ex. 41).
The same day, October 16, Plaintiff filed a grievance
regarding Nurse Kinter's removal of his medical diet. (Pl.’s
Exs. 39, 40). Lt. Laurin denied the grievance. (Pl.’s Ex. 40).
On October 17, 2012, Plaintiff submitted two Sick Call
Requests. (Pl.’s Ex. 42; Defs.’ Ex. 20). The first stated:
“I do not eat tomatoes. Tomatoes causes me extreme acid
reflux ... yet I was served a dinner of pasta & tomato
sauce. The restriction was taken out of my file.” (Pl.’s Ex.
42). Plaintiff requested that the restriction be reinstated.
(Id.). On October 18, Nurse Kinter responded: “This was
discussed at visit with M.D. You decided not to follow
doctor's recommendations!” (Id.). The second Sick Call
Request stated that Plaintiff does not eat pork, he is Muslim,
he has raised this issue on several occasions, and that his
diet was “recently” changed under Nurse Kinter's “directive”
and he “need[s] his religious diet reinstated.” (Defs.’ Ex. 20).
Nurse Kinter investigated Plaintiff's request and on October
18, responded: “Your religious diet is still in effect. I checked
with kitchen. I don't do anything with religion.” (Id.; T. 414).
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9. Served Pork Meal – October 17, 2012
*11 On October 17, Plaintiff received a pasta salad. (T. 136).
It was labeled “meatless” or “vegetarian” but when Plaintiff
“began to ... dig in,” he discovered the salad had pork in
it. (Id.). When Plaintiff compared his tray to that of another
Muslim inmate he found his salad was different. (T. 137).
When Plaintiff compared his tray to “the general population”
trays, he found they were identical. (Id.). Plaintiff reported
the tray to the officer on duty. (Id.). Plaintiff submitted a
grievance on October 17 reporting that he had been served
a “ham salad” despite having a Special Diet Notification
in his inmate file. (Pl.’s Ex. 22). On the grievance, Sgt.
Clancy wrote: “I replaced the meal and was given a non-pork
meal. And as for the meal slip a new one was placed in file
and kitchen was notified.” 15 (Id.). Plaintiff checked the line
next to “I do not accept this resolution and wish to file a
formal grievance.” (Id.). Under “Decision of the Grievance
Coordinator,” Sgt. Clancy wrote: “Spoke with kitchen @
1835 [6:35 p.m.]. Was shown file that shows inmate Brandon
no shellfish; No pork. Returned and spoke with inmate.
Inmate Brandon refuses to accept @ 1844 [6:44 p.m.].” (Id.).
The next day, Sgt. Clancy told Plaintiff she had investigated
the matter and that “the staff chef had made a mistake,” and
had “put the pork meal on [Plaintiff's] tray instead of the non-
pork meal.” (T. 141–42; Pl.’s Ex. 22). When Plaintiff asked
Sgt. Clancy if she would document that, Sgt. Clancy said
“no,” and that she was “going to leave it as she had it.” (T.
143). Plaintiff testified that as Sgt. Clancy walked away from
him, she said to Officer Blaise: “if he grieves another tray,
she's going to lock” Plaintiff up. (Id.). 16 Lt. Laurin ultimately
denied the grievance by attaching, without explanation, his
October 12 investigation, which occurred five days before the
incident at issue in the October 17 grievance. (Pl.’s Ex. 22).
10. Medical Diet Grievances – October 19–27, 2012
On October 19, 2012, Plaintiff submitted three grievances:
the first stated that he had received a tray with “hot cereal
& buttery toast,” which did not comply with his “restrictive
diet” for his “high cholesterol condition,” (Pl.’s Ex. 43), the
second stated that he was served tomato soup for lunch, which
causes him “severe ...acid reflux,” (Pl.’s Ex. 44), and the
third stated that he had been served a salad with tomatoes for
dinner, which causes him “severe ...acid reflux,” (Pl.’s Ex.
45). Plaintiff filed similar grievances on October 20, 22, 24,
25, 27, 28, 29, 30, 31, and November 1. (Pl.’s Exs. 45–55). On
November 2, after investigating, Lt. Laurin issued a decision
denying Plaintiff's grievances, noting that “[t]he jails [sic]
Health Coordinator and the Jail Physician has [sic] eliminated
your diets consisting of low fat, low cholesterol, no fish and
no tomatoes or tomato products” because the commissary
items Plaintiff had purchased were not compliant “with the
Physicians [sic] recommendations.” (Pl.’s Ex. 56). Lt. Laurin
noted that the “no shell fish” and “religious restrictions
for Muslims” were intact. (Id.). Plaintiff filed additional
grievances regarding his medical diet on November 2, 4, and
9. (Pl.’s Exs. 57, 58, 59).
By October 26, Lt. Laurin had received “several grievances”
from Plaintiff, and he spoke with “medical and asked them if
there was something we could do.” (T. 335–36). Lt. Laurin's
“focus was totally on answering his grievances and seeing if
we couldn't get some kind of resolution.” (T. 336). Lt. Laurin
explained that resolving Plaintiff's grievances had “turned
into a full-time job” and “was a little overwhelming.” (Id.). Lt.
Laurin estimated that Plaintiff had filed eighteen grievances.
(Id.). Lt. Laurin also discussed with Nurse Kinter whether
there was “something we could do to get [Plaintiff] back
on his diet because we needed to come to a conclusion of
all this”—meaning that they “needed to make all parties
happy.” (T. 336–37). 17
11. Served Pork Meal – Late October 2012
The following week, in late October, Plaintiff received a
meal with “a label of vegetarian bean soup” that appeared
to be “compliant.” (T. 152). However, as Plaintiff started to
eat, he noticed “small bits of ham chunks swimming in” the
soup. (Id.). Plaintiff looked around and noticed that the others
who received “non-pork meal[s],” had different meals than
Plaintiff but that his was the same as “the general population
meals.” (T. 152). Plaintiff reported the meal to the officer
on duty. (Id.). The officer “did his own investigation” by
comparing Plaintiff's meal to the meals of the other inmates
and concluded, like Plaintiff, that although Plaintiff's soup
was labeled “vegetarian soup” it was ham soup. (T. 153). The
officer “contacted the kitchen.” (Id.). The officer reported that
“Chef Bedard said that he mistakenly used the same ladle
spoon to serve [his] tray with another tray,” so he “mixed” up
the soup on Plaintiff's tray. (T. 153–54). Plaintiff received a
replacement meal. (Id.). As a result, Plaintiff “started combing
through” his meals. (Id.).
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12. Served Pork Meal – November 2012
*12 In November 2012, Plaintiff received a meal with a
pasta salad labeled “meatless salad” that contained pepperoni.
(T. 155). Plaintiff “immediately” brought the pepperoni to the
attention of Officer Webb, who was the corrections officer
on duty. (T. 156). Plaintiff told Officer Webb that he did not
eat pork and about “the last two instances when [he] received
a meal that appeared to have a label that was compliant
with [his] religious diet, but the meal itself wasn't,” and said,
“this happened again and this is pepperoni.” (Id.). Officer
Webb, without looking at the tray, immediately said “oh, that's
turkey pepperoni.” (Id.). Plaintiff explained that it was “pork
pepperoni” and “went on to say” that even it if it was “turkey,”
not only would everyone have received it, but it was not
“meatless” and the salad was labeled “meatless salad.” (T.
155, 157). Plaintiff asked Officer Webb to “[c]ontact the
kitchen and just confirm,” “[i]f it's turkey, then its turkey. If it's
not, then ... [he] would like a replacement of some sort.” (T.
157). Officer Webb said he would call. (Id.).
After twenty minutes “went by,” Plaintiff approached Officer
Webb, who was on the phone.” (Id.). Officer Webb said
“oh, so its turkey—turkey pepperoni.” (Id.). “And then he
told [Plaintiff] that he spoke to somebody in the kitchen
and he confirmed that it was turkey pepperoni.” (Id.). When
Plaintiff asked who Officer Webb spoke to, Officer Webb
said something to the effect that he was not going to tell
Plaintiff who it was. (T. 158). Plaintiff stated that he wanted a
name because he wanted to submit a grievance. (Id.). Officer
Webb replied that if Plaintiff grieved the meal, he would
not get a replacement meal. (Id.). Plaintiff did not receive a
replacement meal and there is no evidence that Plaintiff filed a
grievance. (T. 159). Defendants did not present any evidence
that the kitchen served turkey pepperoni. The Court finds that
the pepperoni served to Plaintiff that day contained pork and,
crediting Plaintiff's testimony, finds that Officer Webb did not
call the kitchen to check whether the pepperoni in the salad
was turkey pepperoni.
13. Medical Diet Reinstated – November 15–21, 2012
On November 15, Plaintiff submitted a “Sick Call Request”
seeking to speak with Nurse Kinter about the removal
of his restrictive diets “because of a non-compliance of
my diet she said I committed through my commissary
purchases.” (Pl.’s Ex. 60). Plaintiff requested guidance
regarding appropriate commissary purchases “that won't be
deemed as non-compliant so” that his restrictive diets can
be “reinstated.” (Id.). Plaintiff asked if Nurse Kinter “could
talk to him about his commissary purchases,” and she did. (T.
394). Together, they “went through the commissary options
to see what would be better options of what to buy.” (T. 394–
95). Nurse Kinter crossed off items from the commissary list
“that were not recommended for him to purchase.” (T. 401).
On November 21, Nurse Kinter restored Plaintiff's diets and
noted that Plaintiff could “purchase items from commissary
that are highlighted.” (Pl.’s Ex. 60).
14. Assaulted by Another
Inmate – November 17–18, 2012
On or about November 17, Plaintiff saw Sgt. Clancy and
Officer Blaise in an observation housing unit where Plaintiff
was confined. (T. 145). They were “escorting” another
inmate, “Tiny,” “into the cell next to” Plaintiff. (Id.). Plaintiff
knew Tiny “had a reputation ... for attacking other inmates,”
for throwing things at other inmates, including feces and
urine, and for spitting. (T. 145–46). As Sgt. Clancy and
Officer Blaise were moving Tiny into his cell, Plaintiff heard
Tiny and Sgt. Clancy arguing and then heard Sgt. Clancy say,
“let's see if he tries this shit on Brandon.” (T. 146). Plaintiff
testified that after Sgt. Clancy and Officer Blaise left, Tiny
began making “racial remarks” to Plaintiff, and that the two of
them argued during the night. (T. 147). When Officer Blaise
returned the next day during mealtime, Officer Blaise asked
Plaintiff to assist in carrying food trays (T. 148). Plaintiff
agreed and began carrying trays. (T. 149). As Plaintiff stood
up from his work in front of Tiny's cell, Tiny spit in his face.
(Id.). Officer Blaise issued an incident report regarding Tiny's
conduct. (Defs.’ Ex. 23).
15. Served Pork Meal – December 25, 2012
*13 On December 25, there were two issues with Plaintiff's
meals. (T. 494). At breakfast, Plaintiff told Officer Perry,
the corrections officer on duty, that there was butter on his
toast. (Id.). Officer Perry checked his file, which reflected
a “low cal/low fat diet,” and “called the kitchen and had
his toast replaced.” (Id.). At lunch, Plaintiff received a meal
of barbeque ribs, which he immediately brought to Officer
Perry's attention. (T. 161–62). Officer Perry “smirk[ed] and
said, come on Brandon ... where's your holiday spirit.” (T.
162). They “started arguing immediately.” (Id.). Plaintiff
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“cursed at him” and “was combative” and “upset.” (Id.).
Plaintiff voiced his frustration of “an entire year of this
nonstop” “like I'm a joke to these people.” (T. 162–63).
Plaintiff filed a grievance stating again that he is Muslim and
that he was yet again served a meal with pork. (Pl.’s Ex.
25). Under “[s]ummary of facility staff attempts to resolve,”
the grievance states: “your meal was addressed and changed
to address your needs.” (Id.). On the grievance, Plaintiff
checked the line next to “I do not accept this resolution
and wish to file a formal grievance.” (Id.). The grievance
was never forwarded to the grievance coordinator and there
is nothing in the record that suggests it proceeded beyond
Officer Perry. Defendants provide no explanation for this. 18
Plaintiff testified that despite the statement on the grievance,
his meal was not replaced. (T. 164). Having observed the
testimony of Plaintiff and Officer Perry, and the credibility
and demeanor of each witness on this issue, the Court credits
Plaintiff's testimony that his meal was not replaced.
Plaintiff lost fifty pounds during the twelve months he was in
the jail. (T. 166).
III. CONCLUSIONS OF LAW
A. Legal Standard
“The preponderance standard is no more than a tie-breaker
dictating that when the evidence on an issue is evenly
balanced, the party with the burden of proof loses.” United
States v. Gigante, 94 F.3d 53, 55 (2d Cir. 1996); see Kosakow
v. New Rochelle Radiology Assocs., 274 F.3d 706, 731 (2d Cir.
2001).
B. First Amendment Free Exercise of Religion
Like prisoners, pretrial detainees “have ‘long been understood
to retain some measure of’ their rights under the Free
Exercise Clause.” Brandon, 938 F.3d at 32 (quoting Ford v.
McGinnis (Ford II), 352 F.3d 582, 588 (2d Cir. 2003)). “These
rights, however, must be balanced against the ‘interests of
prison officials charged with complex duties arising from
administration of the penal system.’ ” Id. (quoting Ford II,
352 F.3d at 588). Thus, courts must “judge prisoners’ free
exercise claims ‘under a “reasonableness” test less restrictive
than that ordinarily applied to alleged infringements of
fundamental constitutional rights.’ ” Id. (quoting Ford II,
352 F.3d at 588). This test requires a prisoner or pretrial
detainee to “show at the threshold that the disputed conduct
substantially burdens his sincerely held religious beliefs.” Id.
(quoting Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014)).
If the prisoner or pretrial detainee “satisfies these threshold
requirements, a defendant can still avoid liability by showing
that his or her conduct is ‘reasonably related to legitimate
penological interests.’ ” Id. (quoting Holland, 758 F.3d at
222).
At trial, Plaintiff established by a preponderance of the
evidence that he was entitled to receive a Muslim, no-pork,
no pork products diet starting on March 2, 2012, the date he
was re-booked into CCJ and listed his religion as Muslim.
The importance of avoiding pork and pork products to the
practice of Islam was undisputed at trial; the Quran prohibits
the eating of pork and the eating of pork is considered “a high
sin.” (T. 38–39). It was also undisputed that Plaintiff's beliefs
were sincerely held. (T. 55). Notwithstanding Plaintiff's
entitlement to a religious diet, he was served pork meals two
to four times weekly—between 62 and 124 pork meals—
during the 31-week period from March 2, 2012 to October 5,
2012, the day a Special Diet Notification form directing the
kitchen to provide a religious diet was placed in his inmate
file. (T. 59–81; Pl.’s Ex. 1). Even after Lt. Laurin gave the
kitchen written notice of Plaintiff's entitlement to a Muslim,
no-pork, no pork products diet on October 5, Plaintiff was
served pork meals at least four times thereafter: on October
17, (Pl.’s Ex. 22); in late October, (T. 152–54); once in
November, (T. 155); and on December 25, (Pl.’s Ex. 25). The
October meals were replaced, (see Pl.’s Ex. 22 T. 154), but the
November meal with pepperoni, and the December 25 BBQ
pork ribs meal were not replaced.
*14 Thus, Plaintiff has established that he was denied a
religiously compliant diet from March 2 to October 5, 2012
and served a total of at least 66 pork meals from March 2 to
December 25, 2012. The Court has no difficulty concluding
that the denial of a religious diet for seven months and
the service of at least 66 pork meals substantially burdened
Plaintiff's sincerely held religious beliefs. See Brandon, 938
F.3d at 35–36 (observing that the Circuit previously found the
denial “of a single [religious] feast constituted a substantial
burden” and concluding that the denial of ten Muslim, no-
pork meals “may constitute a substantial burden” (citing Ford
II, 352 F.3d at 593)). Defendants presented no evidence at
trial that the service of pork meals to Plaintiff was reasonably
related to a legitimate penological interest. Accordingly, the
Court finds Plaintiff's right to the free exercise of religion was
violated.
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1. Personal Involvement 19 and Deliberate Indifference
The Second Circuit has instructed:
[A]fter Iqbal, there is no special rule for supervisory
liability. Instead, a plaintiff must plead and prove “that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.” [Ashcroft
v.] Iqbal, 556 U.S. [662,] 676, 129 S.Ct. 1937, 173 L.Ed.2d
868 [(2009)]. “The factors necessary to establish a [§
1983] violation will vary with the constitutional provision
at issue” because the elements of different constitutional
violations vary. Id. The violation must be established
against the supervisory official directly.
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). “The
focus is on what the supervisor did or caused to be done, ‘the
resulting injury attributable to his conduct, and the mens rea
required of him to be held liable, which can be no less than
the mens rea required of anyone else.’ ” Id. (quoting Porro v.
Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (Gorsuch, J.)).
In this case, to prove the individual Defendants liable
under the First Amendment for the violation of his right to
free exercise of religion, Plaintiff must also establish that
they acted with deliberate indifference. 20 “The ‘deliberate
indifference standard embodies both an objective and a
subjective prong.’ ” Morgan v. Dzurenda, 956 F.3d 84, 89
(2d Cir. 2020) (quoting Hathaway v. Coughlin, 37 F.3d 63,
66 (2d Cir. 1994)). “First, the alleged deprivation must be, in
objective terms, sufficiently serious.” Id. (quoting Hathaway,
37 F.3d at 66). “Second, the charged official must act with a
sufficiently culpable state of mind.” Id. (quoting Hathaway,
37 F.3d at 66). “Deliberate indifference requires more than
negligence, but less than conduct undertaken for the very
purpose of causing harm.” Id. (quoting Hathaway, 37 F.3d at
66). As to the second prong, “the pretrial detainee must prove
that the defendant-official 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 the defendant-official knew, or should
have known, that the condition posed an excessive risk” to
the right to free exercise. Darnell v. Pineiro, 849 F.3d 17, 35
(2d Cir. 2017) (explaining deliberate indifference in pretrial
detainee context); see also id. (explaining that “[i]n other
words, the ‘subjective prong’ (or ‘mens rea prong’) of a
deliberate indifference claim is defined objectively”).
a. Lt. Laurin
*15 To establish a constitutional violation against Lt. Laurin,
Plaintiff must show that Lt. Laurin, “through [his] own
individual actions, has violated the Constitution.” Tangreti,
983 F.3d at 618. Lt. Laurin was responsible for supervising the
corrections sergeants and the day-to-day activities throughout
CCJ, and for overseeing the grievance program at CCJ.
(Joint Pre-Trial Stipulation, ¶ 3(a)(vi)). However, there is
no evidence in the record indicating that Lt. Laurin had
any knowledge regarding, or involvement with, Plaintiff's
requests for a Muslim diet before September 26. And because
Lt. Laurin's supervisory responsibilities alone are insufficient
to subject him to liability, see Tangreti, 983 F.3d at 619
(explaining that a supervisor cannot be found liable alone “by
reason of ... [his] supervision of others who committed the
violation”), the Court finds Plaintiff has failed to prove Lt.
Laurin's liability for the service of pork meals, in violation
of Plaintiff's free exercise rights, from March 2 to September
26. However, this does not end the inquiry as to Lt. Laurin's
liability for it is undisputed that Lt. Laurin became involved
on September 26.
When Lt. Laurin began handling Plaintiff's grievances on
September 26, he learned that Plaintiff was Muslim, (T. 91
(Plaintiff testifying that Lt. Laurin told him that he was
aware Plaintiff was Muslim)), and that he had been receiving
noncompliant meals for many months, (see, e.g., Pl.’s Ex. 15
(Plaintiff stating in grievance “I've been here for 250+ days
and continuously receive food ... which I can't eat”)). When
Lt. Laurin searched the kitchen's files, he found the kitchen
did not have a religious diet form in Plaintiff's file. (T. 303,
306–07, 341). Lt. Laurin then went to Plaintiff and said he
knew Plaintiff was Muslim, that Plaintiff was receiving pork
meals, that it was “wrong” and that “he's going to help.” (T.
91, 304). On September 29, when Lt. Laurin issued a decision
on Plaintiff's grievances, he noted that the “kitchen had not
been notified he was Muslim” but that “kitchen staff has been
advised to correct the diet.” (Pl.’s Ex. 15). This, of course,
was untrue because Lt. Laurin had not yet filed a Special Diet
Notification form for Plaintiff. Despite personally assuring
Plaintiff on September 27 that he would no longer receive
pork meals and representing that he had already “advised” the
kitchen “to correct the diet,” Lt. Laurin did not complete a
Special Diet Notification form until October 5—ten days, and
thirty meals, later. (Pl.’s Ex. 8). Lt. Laurin had no explanation
for not filing the Special Diet Notification form until October
5, (T. 306, 351 (Lt. Laurin testifying that he did not “know
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offhand” and speculating that he “probably got tied up in
something”)), and understood such forms were to be filed the
same day as booking, or shortly thereafter. (T. 293–94 (Lt.
Laurin testifying that “[o]nce that inmate was booked in,”
the booking officer “was supposed” to physically bring the
religious diet notification slip “down to the kitchen”)). Based
on this evidence, the Court concludes that as of September
26, Lt. Laurin knew that Plaintiff was entitled to a Muslim
diet, and that without a Special Diet Notification form in
his kitchen inmate file, there was an excessive risk that
Plaintiff would continue to receive pork meals in violation
of his religion. And yet, Lt. Laurin inexplicably waited ten
days to file the Special Diet Notification form. Therefore,
the Court finds that Plaintiff has proven by a preponderance
of the evidence that Lt. Laurin recklessly failed to act with
reasonable care to mitigate the risk that remaining on a regular
diet at CCJ posed to Plaintiff's right to free exercise of
religion. Darnell, 849 F.3d at 35. Accordingly, Lt. Laurin is
liable for the September 26 to October 5 violation of Plaintiff's
right to the free exercise of religion. 21
*16 Despite Lt. Laurin's filing of the Special Diet
Notification form, Plaintiff was served four pork meals
between October 5 and December 25. However, Plaintiff has
not shown Lt. Laurin's “individual actions” with respect to
these meals led to the violation of Plaintiff's First Amendment
rights. Moreover, as the two pork meals Plaintiff was served
in October were both replaced immediately, (Pl.’s Exs. 22; T.
154), the burden on Plaintiff's free exercise of religion may
have been de minimis. See Rutherford v. Westchester Cnty.,
No. 18-cv-4872, 2020 WL 433841, at *7, 2020 U.S. Dist.
LEXIS 14113 (S.D.N.Y. Jan. 28, 2020) (“As Plaintiff alleges
only a single incident of ham in his halal meal, and as he
acknowledges that Defendants attempted to rectify (or at least
ameliorate) the situation immediately, he has not alleged a
constitutional violation.”). But even assuming the service of
two pork meals in October constituted a substantial burden, in
both instances, the only evidence before the Court as to why
Plaintiff was served pork meals suggests that it was due to
a mistake in the kitchen. (T. 142, 153–54). While Lt. Laurin
was responsible for the day-to-day supervision of the CCJ,
and reviewed the grievance regarding the October 17 pork
meal, (Pl.’s Ex. 22), there is no evidence connecting him to
either meal. See Tangreti, 983 F.3d at 619 (explaining that a
supervisor cannot be found liable alone “by reason of ... [his]
supervision of others who committed the violation”).
Plaintiff was also served a pasta salad with pepperoni in
November, and barbeque pork ribs on December 25. (T. 155;
Pl.’s Ex. 25). Neither meal was replaced. There is no evidence
in the record indicating why Plaintiff received pork meals
on these dates. The Court therefore has no basis for finding
the service of pork on either date was an intentional act.
Moreover, Plaintiff failed to present evidence showing that
Lt. Laurin was personally involved in either meal. Therefore,
the Court finds Plaintiff has not shown Lt. Laurin's liability
for the four pork meals served to Plaintiff between October
17 and December 25.
Accordingly, the Court finds Lt. Laurin is liable for violating
Plaintiff's First Amendment right to the free exercise of
religion by failing to provide a Muslim diet from September
26 to October 5.
b. Nurse Kinter
There is evidence that Nurse Kinter knew of Plaintiff's efforts
to obtain a religious diet as early as May 28. (See, e.g., Pl.’s
Exs. 9, 13). There is also evidence that Nurse Kinter directed
Plaintiff to speak to a sergeant or lieutenant at CCJ and that
she did not help Plaintiff obtain a religious diet. (Pl.’s Ex.
13). However, Plaintiff failed to prove by a preponderance
of the evidence that Nurse Kinter had any authority to do
more than direct Plaintiff's inquiries to those with authority
to assist him and check to see what diets were on file with
the kitchen. Nurse Kinter testified that the nurses at CCJ
“were always told that the healthcare office, any of us nurses,
were not allowed to do religious diets” and that she had
never filled out a religious diet slip in the four years she had
worked at CCJ. (T. 389; T. 468 (Bedard testifying that he did
not recall a nurse or anyone from the medical facility ever
providing him with a religious diet restriction)). The evidence
showed that only a booking officer, sergeant or lieutenant,
or grievance coordinator could authorize a religious diet.
(T. 293, 468; Pl.’s Ex. 8’; Pl.’s Ex. 13). In Tangreti, for
example, the Second Circuit noted that where the defendant
prison official “was not responsible for procuring cameras or
for [the correctional facility's] camera policy[,] [t]he district
court correctly concluded that apart from discussing this
problem with other officials, [the defendant] had no further
responsibility to resolve it.” 983 F.3d at 619 n.7. Thus,
the Court finds that apart from directing Plaintiff to the
individuals at CCJ who could authorize religious diets, Nurse
Kinter had no additional authority or responsibility to assist
Plaintiff in obtaining a religious diet. Jackson v. Sheehan,
No. 16-cv-6710, 2021 WL 795313, at *7, 2021 U.S. Dist.
LEXIS 38947 (W.D.N.Y. Mar. 2, 2021) (“Jansen and Haimes,
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having performed their functions with respect to Plaintiff's
complaint to the limits of their authority, ‘had no further
responsibility to resolve it.’ ” (quoting Tangreti, 983 F.3d
at 619 n.7)). Accordingly, the Court finds Plaintiff failed to
prove by a preponderance of the evidence Nurse Kinter's
personal involvement in the violation of his right to the free
exercise of religion.
c. Bedard
*17 Plaintiff also failed to prove Bedard acted with
deliberate indifference or was personally involved in the
deprivation of his right to the free exercise of religion.
Plaintiff established that Bedard was responsible for ensuring
that meals were prepared in compliance with religious diets,
and was aware, as of October 5, of Plaintiff's religious diet.
(T. 459–60, 469–70; Pl.’s Ex. 8). To the extent Plaintiff seeks
to hold Bedard liable for the period before the Special Diet
Notification was placed in his inmate folder—March 2 to
October 5—Plaintiff has presented no evidence that Bedard
knew he was entitled to a no-pork diet during that time period.
The Court therefore finds Plaintiff has failed to establish
Bedard's liability for the noncompliant meals served from
March 2 to October 5. However, as the kitchen served pork
meals to Plaintiff four times after being notified in writing on
October 5 of Plaintiff's no-pork diet, the Court must consider
whether Plaintiff has proven Bedard's deliberate indifference
and personal involvement in connection with these meals.
(See Pl.’s Ex. 22 (served pasta salad with ham on October 17);
T. 152–54 (served vegetarian bean soup “with small bits of
ham chunks” in late October); T. 155 (served pasta salad with
pepperoni in November); Pl.’s Ex. 25 (served barbeque pork
rib sandwich on December 25)).
The evidence at trial showed that Bedard acted in a
supervisory role with respect to meal service, and although
there is some evidence that Bedard was aware Plaintiff
was claiming that mistakes were being made with respect
to his religious meals, see Dkt. No. 22 (“Grievance
Investigation Form” dated October 15 indicating that Lt.
Laurin interviewed Bedard with respect to serving Plaintiff
pork), there was little evidence connecting Bedard to the
four pork meals Plaintiff received after the Special Diet
Notification was filed with the kitchen. There was no
evidence presented at trial that suggested Bedard was
involved in preparing or serving Plaintiff's meal tray on
October 17. Indeed, the evidence in record shows that Sgt.
Clancy spoke with the “kitchen” about this incident and
learned that a “staff chef had a made a mistake.” (T. 141–
42). The Court therefore finds no basis for holding Bedard
liable for this incident. With respect to the soup with ham
that Plaintiff was served in late October, Plaintiff testified
that he was told that Bedard “mistakenly used the same
ladle spoon to serve [Plaintiff's] tray with another tray”
which resulted in Plaintiff receiving ham in his soup. (T.
153–54). However, even assuming Bedard mistakenly served
Plaintiff ham soup instead of vegetarian bean soup, 22 the
Court finds no basis for concluding Bedard acted with
deliberate indifference. Indeed, the evidence that each time
the kitchen was made aware of a mistake (on October
17 and again in late October), a replacement meal was
sent undermines any suggestion of deliberate indifference
to the violation of Plaintiff's right to the free exercise of
religion. See, e.g., Rangolan v. County of Nassau, 217 F.3d
77, 79 (2d Cir. 2000) (finding no deliberate indifference
when “the County took steps to protect” a vulnerable inmate
“but mistakenly failed to implement them”); Vail v. City of
New York, 68 F. Supp. 3d 412, 425–26 (S.D.N.Y. 2014)
(finding that the plaintiff failed to adequately allege the
defendant acted with deliberate indifference because even
if the defendant administered the incorrect medication, they
“acted quickly after Plaintiff became symptomatic, and
therefore they were not reckless”); Ivey v. City of New York,
Nos. 12-cv-3580, 2013 WL 6838954, at *3, 2013 U.S. Dist.
LEXIS 175884 (S.D.N.Y. Dec. 12, 2013) (granting a motion
to dismiss where it was “[im]plausible that [the] defendants
[had] acted with ‘deliberate indifference’ ” because “they
appeared to have taken immediate steps to provide treatment”
“almost immediately” after the plaintiff “was diagnosed
with a serious ... condition”). Finally, there is no evidence
connecting Bedard, other than in a supervisory role as food
service manager, to the third or fourth pork meals Plaintiff
was served—pasta salad with pepperoni in November or the
barbeque pork ribs on December 25. Accordingly, the Court
finds Plaintiff has failed to prove, by a preponderance of the
evidence, his free exercise of religion claim against Bedard.
d. Sgt. Clancy
*18 Plaintiff asserts Sgt. Clancy was “personally involved
and deliberately indifferent to Plaintiff's Free Exercise rights”
because she refused to “record” her finding that Plaintiff
had been served pork on Plaintiff's October 17 religious
dietary grievance and threatened to “lock” Plaintiff up if he
filed another grievance. (Dkt. No. 247 (citing Pl.’s Ex. 22;
T. 142–45)). Although Sgt. Clancy did not explicitly state
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that Plaintiff received a pork meal on Plaintiff's October 17
grievance, Sgt. Clancy stated that she “replaced the meal”
and that Plaintiff “was given a non-pork meal.” (Pl.’s Ex.
22). Sgt. Clancy's statement implies that Plaintiff's original
meal contained pork, and her efforts to have it replaced reflect
Sgt. Clancy's acknowledgement that the original meal was
improper and that Plaintiff was entitled to a no-pork meal.
(Id.). The Court finds no deliberate indifference or personal
involvement under these circumstances.
e. Officers Webb and Perry
Plaintiff's free exercise claim against Officer Perry arises
from the pasta salad with pepperoni Plaintiff was served in
November 2012. Plaintiff's free exercise claim against Officer
Perry stems from Plaintiff's receipt of a meal of barbeque
pork ribs on December 25. (T. 161–62). However, for the
reasons discussed below, see supra Section III.B.2, because
it was not “clearly established” in 2012 that the failure to
replace a single meal would substantially burden a Muslim
inmate's First Amendment rights, Francis v. Fiacco, 942 F.3d
126, 139 (2d Cir. 2019) (quoting Ricciuti v. Gyzenis, 834 F.3d
162, 167 (2d Cir. 2016)), the Court finds Officer Webb and
Officer Perry are entitled to qualified immunity, and does not
address the merits of Plaintiff's constitutional claims against
them, see id. at 140 (observing that courts, in their discretion,
may “proceed directly to step two of the [qualified immunity]
analysis and, if they find that qualified immunity applies,
avoid the ‘[u]nnecessary litigation of constitutional issues’ at
step one”) (quoting Pearson v. Callahan, 555 U.S. 223, 237,
129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).
2. Qualified Immunity
“Qualified immunity shields federal and state officials from
money damages unless [the] plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Francis 942 F.3d at 139
(quoting Ricciuti, 834 F.3d at 167). Thus, even after a prison
officer has been found liable for a constitutional violation,
“the doctrine of qualified immunity will shield that officer
from liability for damages if his [or her] ‘conduct d[id] not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’ ” Outlaw v.
City of Hartford, 884 F.3d 351, 366 (2d Cir. 2018) (quoting
Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d
255 (2015)). A court may grant qualified immunity after
a finding of liability “if an officer has made a reasonable
mistake of law, i.e., if the constitutional violation he [or she]
has committed was not a ‘clearly established’ violation.”
Jackson v. Tellado, 236 F. Supp. 3d 636, 662 (E.D.N.Y. 2017).
“The qualified immunity standard is an objective standard,
asking not whether the defendant officer acted in good faith or
what he himself [or she herself] knew or believed, but rather
what would have been known to or believed by a reasonable
officer in the defendant's position.” Outlaw, 884 F.3d at 367.
Qualified immunity is an affirmative defense that a defendant
bears the burden of proving. Id. “To the extent that a particular
finding of fact [i]s essential to an affirmative defense, ... it [i]s
incumbent on [the defendant] to request that the [factfinder]
be asked the pertinent question.” Id. (quoting Kerman v. City
of New York, 374 F.3d 93, 120 (2d Cir. 2004)) (markings in
original).
“To be clearly established, a right must be sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” Taylor v. Barkes, 575
U.S. 822, 825, 135 S.Ct. 2042, 192 L.Ed.2d 78 (2015)
(quoting Reichle v. Howards, 566 U.S. 658, 664, 132
S.Ct. 2088, 182 L.Ed.2d 985 (2012)). “In making this
determination, [courts] consider Supreme Court and Second
Circuit precedent as it existed at the time of the challenged
conduct.” McGowan v. United States, 825 F.3d 118, 124 (2d
Cir. 2016) (citing Garcia v. Does, 779 F.3d 84, 92 (2d Cir.
2014)). However, “the absence of a decision by [the Second
Circuit] or the Supreme Court directly addressing the right
at issue will not preclude a finding that the law was clearly
established so long as preexisting law clearly foreshadows
a particular ruling on the issue.” Id. (quoting Garcia, 779
F.3d at 92 (internal quotation marks, alterations, and citations
omitted)).
a. Lt. Laurin
*19 “We ... have clearly established that a prisoner has a
right to a diet consistent with his or her religious scruples.”
Ford II, 352 F.3d at 597 (citing Kahane v. Carlson, 527 F.2d
492 (2d Cir. 1975)). Lt. Laurin knew, as of September 26,
that Plaintiff was entitled to a Muslim diet, that Plaintiff
should have been receiving a Muslim diet since March 2,
and that Plaintiff had been wrongfully denied a Muslim
diet for approximately seven months. And yet, Lt. Laurin,
inexplicably, left Plaintiff on a regular prison diet for ten more
days before placing in Plaintiff's kitchen file a Special Diet
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Notification form advising the kitchen to provide Plaintiff a
non-pork diet. Even assuming, as discussed below, that the
“law was not clearly established as to how many religiously
compliant meals must be denied before the prisoner’ religious
beliefs are substantially burdened,” Brandon, 938 F.3d at
39, the Court finds that no reasonable officer, who had no
legitimate penological reason for withholding a religious diet,
would have believed that allowing an inmate to remain on a
regular diet for an additional ten days, during which time the
inmate regularly received pork meals he could not eat, 23 was
not a substantial burden. See, e.g., McEachin v. McGuinnis,
357 F.3d 197, 201 (2d Cir. 2004) (explaining that the principle
that denying “prison inmates the provision of food that
satisfies the dictates of their faith does unconstitutionally
burden their free exercise rights” was “established in our
circuit at least as early as 1975” and that the district court
improperly dismissed the plaintiff's claim that “the seven-
day restrictive diet imposed upon him ... impinged upon his
observance of Ramadan” (citing Ford II, 352 F.3d at 597)).
Notably, Lt. Laurin does not argue otherwise. Accordingly,
Lt. Laurin is not entitled to qualified immunity.
b. Officers Webb and Perry
Officers Webb and Perry were each only involved in one
incident. The Court finds that, even crediting Plaintiff's
allegations, Officers Webb and Perry are entitled to qualified
immunity for these isolated incidents. A reasonable officer
would not necessarily have known that the failure to replace a
single noncompliant meal imposed a substantial burden under
existing precedent. Though there need not be a case directly
on point, “existing precedent must have placed the statutory
or constitutional question beyond debate.” Taylor, 575 U.S.
at 825, 135 S.Ct. 2042 (internal quotation marks and citations
omitted). It was not clearly established in 2012 that the
denial of a single religious meal would substantially burden
a plaintiff's First Amendment rights. Compare Brandon, 938
F.3d at 36 n.11 (“We express no opinion as to whether a
single meal or a smaller number of meals spread out over a
longer period of time might perhaps be considered isolated
incidents, such that the burden they impose is de minimis.”);
with Williams v. Does, 639 F. App'x 55, 57 (2d Cir. 2016)
(“The district court relied on non-binding case law when it
determined that Williams's burden was de minimis because
only a few of his meals were delivered prematurely; its
reasoning is inconsistent with this Court's case law, which
cautions against ‘the danger that courts will make conclusory
judgments about the unimportance of the religious practice to
the adherent.’ ” (quoting Ford II, 352 F.3d at 593)); see also
Wiley v. Baker, No. 20-cv-154, 2022 WL 3045042, at *6, 2022
U.S. Dist. LEXIS 138684 (D. Vt. June 10, 2022) (declining to
dismiss at the pleading stage because, “given that the case law
is not clear on precisely how many missed or untimely meals
during Ramadan would constitute a ‘substantial burden’ to
a Muslim inmate, dismissal on ‘substantial burden’ grounds
is inappropriate at this stage of the case”), report and
recommendation adopted, 2022 WL 3042140, 2022 U.S.
Dist. LEXIS 136972 (D. Vt. Aug. 2, 2022); Brown v. Graham,
No. 07-cv-1353, 2010 WL 6428251, at *15, 2010 U.S. Dist.
LEXIS 144188 (N.D.N.Y. Mar. 30, 2010) (holding that even
assuming that the “plaintiff was approved to receive a kosher
meal throughout his confinement ... the withholding of a
single noon meal constituted, at most, a de minimis burden on
plaintiff's religious expression”), report and recommendation
adopted, 2011 WL 1213482, 2011 U.S. Dist. LEXIS 34345
(N.D.N.Y. Mar. 31, 2011), aff'd, 470 F. App'x 11 (2d Cir.
2012) (“[T]here is nothing in this record that could support
a reasonable jury conclusion that [the defendant's] failure to
provide [Plaintiff] a kosher meal on a single occasion rose
to the level of a substantial burden on [Plaintiff's] religious
freedom.”). Thus, Officers Webb and Perry are entitled to
qualified immunity.
C. First Amendment Retaliation
*20 Plaintiff brings three First Amendment retaliation
claims: (1) that Lt. Laurin and Nurse Kinter retaliated against
him for filing grievances by removing his medical diets; (2)
that Sgt. Clancy and Officer Blaise retaliated against him for
filing a grievance on October 17 by exposing him to assault by
another inmate; and (3) that Bedard retaliated against him for
filing grievances by intentionally placing pork in his meals.
Defendants argue that Plaintiff has failed to prove his claims
by a preponderance of the evidence.
To prove First Amendment retaliation, Plaintiff must establish
by a preponderance of the evidence: “ ‘(1) that the speech or
conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was a
causal connection between the protected [conduct] and the
adverse action.’ ” Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir.
2020) (alteration in original) (quoting Holland, 758 F.3d at
225).
1. Removal of Medical Diets
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Plaintiff filed his first meal-related grievance on May 28,
(Pl.’s Ex. 10), and thirteen additional grievances from
September 15 to October 15. 24 It is well settled that
“retaliation against a prisoner for pursuing a grievance
violates the right to petition government for the redress
of grievances guaranteed by the First and Fourteenth
Amendments and is actionable under § 1983.” Graham v.
Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (citing Franco v.
Kelly, 854 F.2d 584 (2d Cir. 1988)); see also Brandon, 938
F.3d at 40 (“The filing of prison grievances is a protected
activity.”) (citing Davis v. Goord, 320 F.3d 346, 352–53 (2d
Cir. 2003)). Thus, Plaintiff has proven the first element of his
retaliation claims.
“An adverse action is defined as ‘retaliatory conduct that
would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights.’ ”
Id. (quoting Davis, 320 F.3d at 353). “The test is objective,
and the plaintiff is not required to show that he was actually
deterred.” Id. (citing Gill v. Pidlypchak, 389 F.3d 379, 381
(2d Cir. 2004)). Thus, a retaliation claim may proceed “even
where a particular plaintiff was not himself subjectively
deterred; that is, where he continued to file grievances.” Gill,
389 F.3d at 381. Such a plaintiff may satisfy the adverse action
element by showing that the conduct “would have deterred a
similarly situated individual of ordinary firmness.” Brandon,
938 F.3d at 40 (quoting Gill, 389 F.3d at 381).
*21 Next, the plaintiff must “establish a causal connection
between the defendants’ actions and the adverse action.” Id.
at 40. To do so, a plaintiff must show “that the speech played
a substantial part in the adverse action,” id. (quoting Davis,
320 F.3d at 354), “in response to which the defendant official
can then show that the [adverse] action would have occurred
regardless,” Hayes, 976 F.3d at 272 (citing Holland, 758 F.3d
at 226). “A plaintiff can establish a causal connection that
suggests retaliation by showing that protected activity was
close in time to the adverse action.” Espinal v. Goord, 558
F.3d 119, 129 (2d Cir. 2009).
On October 16, Nurse Kinter issued a “Diet Notification”
form to the CCJ kitchen regarding Plaintiff's “Medical”
diet. (Pl.’s Ex. 41). The form, which is signed by Nurse
Kinter, directed the “cancel[ation of] all previous slips” and
placement of Plaintiff on a “Reg Diet”—“No Shellfish.” (Id.).
It canceled Plaintiff's low fat/low cholesterol, no tomato, no
fish medical diet. The cancelation of Plaintiff's medical diet
did not deter him from filing further grievances: he filed one
the day his medical diet was canceled, (Pl.’s Exs. 39, 40), and
seventeen grievances between October 17 and November 21,
the day his medical diet was reinstated, (Pl.’s Exs. 22, 43, 44,
45, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59). However,
applying the objective test, the Court finds Plaintiff has
proved by a preponderance of the evidence that he suffered an
adverse action. Dr. Schroyer issued a medical diet, including
a “no shellfish diet” on January 14 to address Plaintiff's
shellfish allergies, a “no tomato or tomato products diet” on
March 23 to address Plaintiff's severe acid reflux, and a “low
fat/low cholesterol diet” on May 21 to address Plaintiff's high
cholesterol. (Joint Pre-Trial Stipulation, ¶ 3(a)(xii)–(xiv); T.
45–46). At the time Dr. Shroyer ordered Plaintiff's low fat/
low cholesterol diet, Plaintiff's labs reflected high cholesterol
levels, which, Plaintiff understood, placed his health at risk.
(T. 129). Plaintiff also understood that the dietary restriction
was important to reduce the risks to his health. (T. 129). 25
Because tomatoes caused Plaintiff severe acid reflux, their
removal from his diet was necessary to avoid acid reflux. In
this case, Plaintiff established that the removal of these diets
had the impact of depriving Plaintiff of portions of many of his
meals. (See, e.g., Pl.’s Ex. 46 (Plaintiff grieving the removal
of “restrictive status” and explaining that it directly exposed
him “to foods I can't consume”)). Indeed, the grievances
Plaintiff filed show that as a result of the revocation of his
medial diet, he was deprived of a full or partial meal at least
fourteen times during a 21-day period (Pl.’s Exs. 43, 44, 45,
46, 47, 48, 49, 50, 51, 52, 55, 57, 58, 59 (Grievances filed
between October 19 and November 9)). Thus, Plaintiff has
established that the removal of his “low fat/low cholesterol”
and “no tomato” diet was an adverse action. See, e.g.,
Quezada v. Roy, No. 14-cv-4056, 2017 WL 6887793, at *10,
2017 U.S. Dist. LEXIS 210539 (S.D.N.Y. Dec. 14, 2017)
(finding, at summary judgment, that “removing Plaintiff from
his therapeutic diet plan constitutes an adverse action for
purposes of a First Amendment retaliation claim”); Davis,
320 F.3d at 353 (finding, at pleading stage, that the plaintiff
adequately alleged adverse action based on deprivation of
“high fiber diet”).
*22 In addition, Plaintiff has proven by a preponderance
of the evidence that his filing of grievances “played a
substantial part” in the adverse action. Lt. Laurin investigated
“what [Plaintiff was] doing with commissary” as part of his
investigation into Plaintiff's grievances about his medical and
religious diets. (T. 326). On September 29, Lt. Laurin noted, in
investigating Plaintiff's September 15 and 24 grievances, that
Plaintiff was “buying items in the commissary that he should
not be with his diet.” (Pl.’s Exs. 14, 15, 16). On or about
October 2, Lt. Laurin had Plaintiff's commissary receipts
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printed. (Defs.’ Ex. 22 (commissary receipts “reprinted on
10/02/2012”)). Although he had that information on October
2, Lt. Laurin did nothing with it until October 15, when
he angrily confronted Plaintiff, asking “[i]f we're getting all
these grievances and you're turning around and purchasing
these items,” what is the “sense of us ... putting in all this
effort.” (T. 328). Between October 2 and October 15, Plaintiff
had filed seven grievances, five of which concerned the food
he was being served. (Pl.’s Exs. 18, 19, 20, 34, 35, 36,
38). Although Lt. Laurin understood that Plaintiff was not
eating all of what he was buying and that Plaintiff had been
regularly receiving pork meals, no part of which he could
eat during a significant part of the time period reflected in
the commissary receipts, (see Defs.’ Ex. 22 (receipts from
purchases for July, August, and September 2012)), after
speaking with Plaintiff, he went directly to Nurse Kinter to
inform her about the commissary receipts, (T. 329). Nurse
Kinter removed Plaintiff's medical diet the next day. Given
the temporal proximity between Plaintiff's grievances and Lt.
Laurin's conduct, Lt. Laurin's direct reference to Plaintiff's
grievances, and his angry tone, Plaintiff has established his
filing of grievances played a substantial role in the removal
of his medical diets. Lt. Laurin's comments to Plaintiff on
October 15 directly implicated not only the fact that Plaintiff
had engaged in protected speech—filing grievances—but
also the content of that speech—seeking help ensuring he
received meals consistent with his medical diet.
“The defendant official then bears the burden of establishing
that the [adverse] action would have occurred ‘even absent the
retaliatory motivation.’ ” Holland v. Goord, 758 F.3d 215, 226
(2d Cir. 2014) (quoting Gayle v. Gonyea, 313 F.3d 677, 682
(2d Cir. 2002)). In Lowrance v. Achtyl, 20 F.3d 529, 535 (2d
Cir. 1994), the Second Circuit held that a retaliation defendant
satisfies this burden when it is “undisputed that [plaintiff] had
in fact committed the prohibited conduct.”
Defendants have failed to prove that Plaintiff's medical diets
would have been revoked absent the retaliatory motivation.
There is no dispute that Plaintiff made the commissary
purchases at issue. However, as Lt. Laurin knew, Plaintiff did
not eat all the commissary purchases himself. In addition,
Plaintiff testified that with respect to the chili ramen,
about which Lt. Laurin and Nurse Kinter were purportedly
concerned because it contained tomato powder, although
he did eat the “noodles several times,” that he “couldn't
handle” and did not “[u]tilize the [seasoning] packet.” (T.
211–12). Moreover, the evidence at trial established that the
practice at the jail, in the case of an inmate making unhealthy
commissary purchases, was to procure the medical staff's help
in placing them on a medical or healthier diet; the practice
was never to remove a medical diet of an inmate whose
health depended on it. Indeed, Lt. Laurin asserted at trial that
“[w]e've done this before in the past” and that it was his
“job ... to make” medical “aware” of the inmate's commissary
purchases. (T. 329). He stated, for example he had “done this
for” diabetics who were not paying “attention” and they have
had “to put them on a low sodium diet because they start
retaining fluids” and for “pregnant females,” and explained
that “we try to keep them on a good healthy diet.” (T. 330).
This testimony might support the unilateral placement of
an inmate on a medial diet as it would benefit the diabetic
or pregnant inmate's health, but it in no way supports the
removal of a medical diet necessary to an inmate's health,
which could only be harmful. Moreover, to the extent it was
Lt. Laurin's job to make medical aware, the only inference
from the above testimony is that he had a duty to make
medical aware that the inmate was eating products harmful
to his health—and procure intervention that would help, not
harm, the inmate. Lt. Laurin has identified no other reason
for the removal of Plaintiff's medical diet other than Plaintiff's
purchase of commissary items that did not comply with
the “low fat/low sodium” diet, a reason he reaffirmed in
personally denying Plaintiff's fifteen subsequent grievances,
most of which complained that he was served spaghetti sauce,
tomato soup, and tomato slices, which caused him acid reflux,
and buttered toast, which was bad for his cholesterol. (Pl.’s
Ex. 56). Therefore, Lt. Laurin has not met his burden of
establishing as a matter of law that Plaintiff's medical diet
would have been removed in the absence of a retaliatory
motive.
*23 Finally, to the extent Lt. Laurin argues he was not
personally involved in this retaliatory act, because only
medical staff could decide to remove a medical diet, the
Court rejects that argument. (Dkt. No. 250, at 46). Lt. Laurin
himself testified that he worked together with Nurse Kinter
with respect to medical diets, (T. 329–30 (Lt. Laurin testifying
that “[w]e've done this before in the past” and that “we have
to put [diabetics] on a low sodium diet because they start
retaining fluids” and “we try to keep [pregnant inmates] on
a good healthy diet”)), and that he brought the commissary
receipts directly to Nurse Kinter for the purpose of showing
Plaintiff's noncompliance with his medical diets, (T. 329 (“I
wanted her to be aware that he was purchasing these items and
they weren't compliant with his low fat/low sodium diet.”)).
In light of these facts, the Court finds it of little consequence
that Lt. Laurin could not sign the form removing the medical
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diet himself. Thus, for all these reasons, the Court finds
that Lt. Laurin's “own individual actions,” constitute First
Amendment retaliation. Tangreti, 983 F.3d at 612 (quoting
Iqbal, 556 U.S. at 676, 129 S.Ct. 1937).
Plaintiff likewise established Nurse Kinter's liability and
personal involvement. Nurse Kinter was aware of Plaintiff's
grievances because Lt. Laurin interviewed her on September
29 as part of his investigations into Plaintiff's complaints that
he was not receiving meals that complied with his medical
diets, (see Pl.’s Ex. 14 (September 15 grievance: “My food
trays are constantly either missing something or stocked
with items I'm not supposed to consume due to medical
conditions.”); Pl.’s Ex. 15 (September 24 grievance: “I cannot
eat ... tomatoes.”); Pl.’s Ex. 16 (September 24 grievance: “I
was served a salad which had tomatoes.”); see also Pl.’s Ex.
16 (“Grievance Investigation Form” for September 15 and 24
grievances noting that Nurse Kinter was interviewed as part
of the investigation); T. 421 (Nurse Kinter testifying that she
knew Plaintiff was grieving his meals)). On September 15, Lt.
Laurin notified Nurse Kinter about Plaintiff's noncompliant
commissary purchases. On September 16, Nurse Kinter
summoned Plaintiff to the medical ward and informed him
that his medical restrictions were being revoked due to his
noncompliant commissary purchase. That same day, Nurse
Kinter signed the “Diet Notification” form revoking Plaintiff's
medical diets. (Pl.’s Ex. 41).
Nurse Kinter removed Plaintiff's medical diet less than three
weeks after she was interviewed in connection with Plaintiff's
medical diet related grievances. The close temporal proximity
between Plaintiff's grievances and the revocation of Plaintiff's
medical diets is circumstantial evidence of retaliatory intent
and causal connection. See Gayle v. Gonyea, 313 F.3d 677,
683 (2d Cir. 2002) (“We have held that the temporal proximity
of an allegedly retaliatory misbehavior report to a grievance
may serve as circumstantial evidence of retaliation.”). In
addition, there is a direct correlation between the subject
matter of the protected conduct, the grievances complaining
that Plaintiff's medical diet was not being followed and the
adverse action, the removal of the medical diet. Finally, Nurse
Kinter's inexplicable placement of Plaintiff on a regular diet
that would do nothing to help, and could only, as she knew,
further harm his cholesterol level and cause Plaintiff severe
acid reflux, is evidence of retaliatory intent. (See T. 419–20
(Nurse Kinter testifying that she was aware that patients with
high levels of cholesterol are at increased risk of heart disease
and that patients with acid reflux can get sick if they eat foods
with high acidity)); Burton v. Lynch, 664 F. Supp. 2d 349, 368
(S.D.N.Y. 2009) (finding that, while the doctor's refusal to
examine the plaintiff's elbow and comments that it “look[ed]
fine” and that the plaintiff's “allergy to Motrin was Plaintiff's
‘problem’ ” did not “explicitly state an intent to retaliate,”
they were “consistent with and imply a retaliatory motive,”
explaining that “[t]he facts corroborating the existence of
Plaintiff's injuries and the failings of Dr. Supple's diagnosis
and treatment, when taken in conjunction with Plaintiff's
allegations of the brusque treatment he received from Dr.
Supple, sufficiently allege a ‘causal connection’ between the
filing of the grievance and the adverse action”).
*24 Further, Nurse Kinter has failed to show that she would
have taken the same action in the absence of Plaintiff's
grievances. Nurse Kinter testified that Plaintiff had a history
of problematic cholesterol and triglyceride levels, (T. 396
(Nurse Kinter testifying that Plaintiff's “ADL's, HDLs, LDLs
were a little bit out of whack and we wanted to get them
better” and “we needed to ... decrease his triglycerides and ...
cholesterol”)), that cholesterol can cause, among other health
problems, a stroke, heart attack, and blocked artery, and “if
somebody has a history of that, we kind of want to get
that under control.” (T. 396). Nurse Kinter testified that had
she felt that removing the medical diet would “make that
prisoner in worse condition, I would not have removed that
diet” and that she had no concerns about removing Plaintiff
medical diet because “his labs had improved.” (T. 437). If
true, this evidence might support a finding that Nurse Kinter
would have removed the medical diets regardless of Plaintiff's
grievance, but the evidence before the Court shows that
Plaintiff's “labs” were largely the same at the time; they do
not show improvement. In addition, as discussed above, there
is no evidence that removal of a medical diet was ever used as
a tactic for improving an inmate's health at CCJ. Accordingly,
the Court finds Plaintiff has proven by a preponderance of the
evidence that Nurse Kinter retaliated against him for engaging
in conduct protected by the First Amendment.
2. Exposing Plaintiff to Assault by Another Inmate
Plaintiff claims that Sgt. Clancy and Officer Blaise retaliated
against Plaintiff for filing his October 17 grievance regarding
a pork meal, (Pl.’s Ex. 22), by “exposing him to assault by
another inmate” on November 18.
Even crediting Plaintiff's testimony that on October 17,
Sgt. Clancy commented to Officer Blaise that she would
lock Plaintiff up if he filed another grievance and that on
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November 17, as she was bringing Tiny into Plaintiff's
housing unit, she wondered if Tiny would “tr[y] this shit
on Brandon,” Plaintiff's retaliation claim against Sgt. Clancy
and Officer Blaise fails. By Plaintiff's own admission, he
argued with, yelled at, cursed, and called Tiny names, and
made racially prejudicial remarks to Tiny “all night,” the night
before the November 18 assault. (T. 147). The Court therefore
finds that it was more likely than not Plaintiff's own conduct
toward Tiny—not any actions Sgt. Clancy or Officer Blaise
may have taken in placing Plaintiff near Tiny—that exposed
Plaintiff to Tiny's assault. Accordingly, as Plaintiff failed to
prove by a preponderance of the evidence a causal connection
between Plaintiff's October 17 protected conduct of filing a
grievance, and Tiny's November 18 assault, his retaliation
claims against Sgt. Clancy and Officer Blaise are dismissed.
3. Intentional Introduction of Pork Into Meals
Plaintiff claims CCJ Food Service Manager Bedard
retaliated against Plaintiff for filing meal-related grievances
“by introducing pork into meals otherwise labeled
meatless.” (Dkt. No. 247, at 61–62). Plaintiff filed twenty-
nine grievances from May 28 to October 31, the majority of
which were food-related. (Pl.’s Exs. 10, 14, 15, 16, 18, 19,
20, 22, 26, 27, 28, 34, 35, 36, 38, 39, 40, 43, 44, 45, 46,
47, 48, 49, 50, 51, 52, 53, 54). Bedard was only aware of
Plaintiff's no-pork diet as of October 5, 2012. In his post-
trial briefing regarding his retaliation claim against Bedard,
Plaintiff specifically refers to the “meals otherwise labeled
meatless” he received on October 17, (see Pl.’s Ex. 22 (ham
salad)), “and on other dates in October 2012,” (Dkt. No. 247,
at 61 (emphasis added)). However, the evidence showed that
Plaintiff was served a pork meal on only one other occasion
in late October—a vegetarian or “meatless” soup containing
ham in late October. (T. 152–54).
Even assuming Bedard was aware of Plaintiff's grievances,
because there is no evidence that Bedard had any part in
the preparation of Plaintiff's tray on October 17, the Court
finds Plaintiff's claim of retaliation as to that incident fails
for lack of personal involvement. See supra, Section III.B.1.c.
Bedard was responsible for supervising the cooks in the
kitchen to make sure food was provided in compliance with
an inmate's special diet, but his supervisory role, without
more, is insufficient. Tangreti, 983 F.3d at 618. Plaintiff has
introduced some evidence that Bedard was responsible for
placing the soup that contained pork on Plaintiff's tray in
late October. Although temporal proximity between Plaintiff's
filing of grievances in September and October 2012 and the
late October service of soup with pork may be circumstantial
evidence of retaliatory intent, there is no evidence that shows
that the placement of the soup with pork on Plaintiff's tray was
anything more than a mistake and the Court notes that this
meal was immediately replaced. (T. 153–54). On this record,
the Court finds that Plaintiff has failed to establish retaliatory
intent. See Lakram v. Coughlin, 99 F.3d 402 (2d Cir. 1995)
(“Although correctional officials now concede that Lakram's
transfer was a mistake, a mistake is insufficient to support
a claim of retaliation.”). Thus, Plaintiff's First Amendment
retaliation claim against Bedard is dismissed.
4. Qualified Immunity
*25 Lt. Laurin argues that he is entitled to qualified
immunity on Plaintiff's First Amendment retaliation claim
because he had no authority to rescind medical diets,
Plaintiff's claim of retaliation is unfounded, and Lt. Laurin
spent time and effort following the removal of Plaintiff's
medical diet addressing Plaintiff's grievances on that issue.
(Dkt. No. 250, at 55). Nurse Kinter argues that she is entitled
to qualified immunity because it was “the jail physician—
and not Defendant Kinter who had the final decision as to
which medical special diets would be ... removed” and, in any
event, one month later she recommended the reinstatement of
Plaintiff's medical diet. (Dkt. No. 250, at 56).
These arguments principally concern the merits of Plaintiff's
retaliation claim, which the Court has addressed above. The
Court has found not only that Lt. Laurin had the authority
to procure the revocation (or approval of) a medical diet,
but that he procured the revocation of Plaintiff's medical
diet in retaliation for Plaintiff's filing of multiple grievances
complaining that his medical and religious diets were not
being followed. The Court has also found that Nurse Kinter
had the express authority to revoke a medical diet and that
she revoked Plaintiff's medical diet with retaliatory intent.
Nurse Kinter correctly notes that Plaintiff's medical diets
were reinstated eventually—after Plaintiff asked for guidance
on medically appropriate commissary purchases. But the
eventual reinstatement of the medical diet does not undermine
the Court's determination that the revocation of that diet was
retaliatory. It appears that the medical diet was reinstated to
quell the increase in Plaintiff's grievances. (T. 336–37 (Lt.
Laurin testifying that he discussed with Nurse Kinter whether
there was “something we could to do get [Plaintiff] back on
this diet because we needed to come to a conclusion of all
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this”)). Although Defendants have not advanced any other
arguments regarding their entitlement to qualified immunity,
as the following analysis shows, qualified immunity is, in any
event, inapplicable here.
First, the filing of grievances was clearly established as
a constitutionally protected activity in 2012. See Gill, 389
F.3d at 384 (the “use of the prison grievance system” is
a protected activity); Franco, 854 F.2d at 589 (holding
that prisoner had constitutional right to petition government
for redress of grievances, which included cooperating with
state investigation of inmate abuse); Graham, 89 F.3d at
80 (filing of a grievance and attempt to find inmates to
represent the grievants is constitutionally protected). Second,
no reasonable prison official could have reasonably believed
that it was not an adverse action to remove Plaintiff's
medical diet which was in place to help get his cholesterol
“under control” in order to reduce his risk of, among other
things, heart attack and stroke, and without which he would
experience “severe acid reflux.” See Davidson v. Chestnut,
193 F.3d 144, 149 (2d Cir. 1999) (observing that denial of
kosher diet is an adverse action that may support retaliation
claim); Davis, 320 F.3d at 352–54 (holding inmate's claim
that prison officials denied plaintiff his high fiber diet
days after filing inmate grievances sufficiently alleged First
Amendment retaliation claim); Quezada, 2017 WL 6887793,
at *10, 2017 U.S. Dist. LEXIS 210539 (“[D]enial of a
therapeutic diet is an adverse action sufficient to form the
basis of a retaliation claim.”). Finally, the Court has found that
both Lt. Laurin and Nurse Kinter acted with retaliatory intent.
“[W]here a more specific intent is actually an element of the
plaintiff's claim as defined by clearly established law, it can
never be objectively reasonable for a government official to
act with the intent that is prohibited by law.” Locurto v. Safir,
264 F.3d 154, 169 (2d Cir. 2001). 26
*26 Accordingly, the Court finds that Lt. Laurin and Nurse
Kinter are not entitled to qualified immunity.
D. Compensatory Damages
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(e), provides, in relevant part:
(e) Limitation on recovery
No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody
without a prior showing of physical injury.
42 U.S.C. § 1997e(e). The PLRA's limitation on recovery “is
generally interpreted to preclude a prisoner complaining of
mental and emotional injury during imprisonment, without
a showing of physical injury, from receiving an award of
compensatory damages.” Walker v. Schult, 45 F.4th 598,
612 (2d Cir. 2022). 27 Here, Plaintiff alleges physical injury
due to a fifty-pound weight loss, headaches, fatigue, hunger,
and mental distress. (Dkt. No. 247, at 76). “[T]here is no
statutory definition of ‘physical injury’ as used in section
1997e(e).” Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999).
However, the physical injury required under § 1997e(e) must
be more than de minimis. Id. (citing Siglar v. Hightower,
112 F.3d 191, 193 (5th Cir. 1997)). “Physical afflictions
that courts have found de minimis include contracting a
fungal infection from exposure to sewage and waste, skin
rashes, and itching, soreness and cracked skin.” Hong v.
Liburd, 18-cv-7201, 2020 U.S. Dist. LEXIS 139145, at *30
(S.D.N.Y. Aug. 3, 2020) (internal citations omitted) (citing
cases). 28 Even assuming Plaintiff established physical injury,
because Defendants are liable for only limited time periods,
September 26 to October 5, and October 15 to November 21,
and Plaintiff has not presented specific evidence concerning
his physical condition during these time period, the Court
finds no basis for awarding compensatory damages based on
physical, mental, or emotional injury.
Nonetheless, Plaintiff is entitled to compensatory damages for
the injury resulting from Defendants’ violation of his First
Amendment rights. Toliver v. City of New York, 530 F. App'x
90, 93 n.2 (2d Cir. 2013) (“[E]ven if Toliver is unable to
establish that any of the injuries complained of in this action
stemmed from an incident in which he suffered physical
injuries, Toliver may still recover damages for injuries to
his First Amendment rights, as well as nominal and punitive
damages for any other constitutional violations.”) (citing
Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002)); see
also Ford v. McGinnis (Ford I), 198 F. Supp. 2d 363, 366
(S.D.N.Y. 2001) (explaining that the PLRA “does not bar a
separate award of damages to compensate the plaintiff for
the First Amendment violation in and of itself.”). Where, as
here, a plaintiff is “entitled to recover for the loss of intangible
rights,” although a jury, or, in this case, the Court, may “not ...
award ‘speculative damages,’ ” the amount of monetary
damages awarded is “necessarily arbitrary and unprovable.”
Kerman v. City of New York, 374 F.3d 93, 125 (2d Cir. 2004)
(emphasis in original) (quoting Raysor v. Port Auth. of New
York & New Jersey, 768 F.2d 34, 39 (2d Cir. 1985)). In
Kerman, the plaintiff prevailed on his Fourth Amendment
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unlawful seizure claim. 374 F.3d at 121. The Second Circuit
held that the jury should have been instructed that the plaintiff
was entitled to compensatory damages for his loss of liberty,
and explained that: “The damages recoverable for loss of
liberty for the period spent in a wrongful confinement are
separable from damages recoverable for such injuries as
physical harm, embarrassment, or emotional suffering; even
absent such other injuries, an award of several thousand
dollars may be appropriate simply for several hours’ loss of
liberty.” 374 F.3d 93, 125–26 (2d Cir. 2004); see also Ford
I, 198 F. Supp. 2d at 366 (holding that the “plaintiff may be
awarded an amount to compensate him for the denial of his
religious meal”).
*27 In this case, Plaintiff has proven that he was wrongfully
served six meals containing pork from September 26 to
October 5, 2012, as a result of Lt. Laurin's failure to place
a Special Diet Notification in Plaintiff's inmate folder. Thus,
not only was he deprived of six meals in a ten-day period, but
the service of each meal violated his First Amendment right to
the free exercise of religion. The Court awards Plaintiff $500
per meal for the violation of his First Amendment right to the
free exercises of religion, for a total of $3,000. Cf., Drayton
v. City of New York, No. 17-cv-7091, 2022 WL 16948769,
at *4–5, 2022 U.S. Dist. LEXIS 207165 (E.D.N.Y. Nov. 15,
2022) (offering the plaintiff choice of new trial or accepting
reduced compensatory damages award of $10,000 for his loss
of liberty during the “3 and 30 minutes” he was in wrongful
custody, observing that New York cases uphold awards of
up to $10,000, in loss of liberty cases, “even without proof
of actual damages”) (citing inter alia Hallenbeck v. City of
Albany, 99 A.D.2d 639, 472 N.Y.S.2d 187 (3d Dep't 1984)
($10,000 for three hours); Woodard v. City of Albany, 81
A.D.2d 947, 439 N.Y.S.2d 701 (3d Dep't 1981) ($7,500 for
five hours)); King v. Zamiara, 788 F.3d 207, 215–16 (6th
Cir. 2015) (affirming award of compensatory damages in the
amount of $1,475, equally $5 per day for First Amendment
retaliatory transfer to “more restrictive facility”).
Plaintiff has also proven that Lt. Laurin and Nurse Kinter
retaliated against him for filing grievances by revoking his
medical diets from October 16, 2012 to November 21,
2012. During that thirty-seven-day period, Plaintiff regularly
received meals, parts of which he could not eat because they
were harmful to his cholesterol levels or would cause severe
acid reflux. Accordingly, the Court awards Plaintiff $200 per
day for each day his medical diets were revoked, for a total of
$7,400. Cf., King, 788 F.3d at 215–16.
E. Punitive Damages
“Punitive damages are available in a § 1983 action ‘when the
defendant's conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indifference
to the federally protected rights of others.’ ” Lee v. Edwards,
101 F.3d 805, 808 (2d Cir. 1996) (quoting Smith v. Wade,
461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)).
“The terms ‘malice’ or ‘reckless indifference’ pertain to the
[defendant's] knowledge that [he or she] may be acting in
violation of federal law.” Kolstad v. Am. Dental Ass'n, 527
U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). “To
be entitled to an award of punitive damages, a claimant must
show a ‘positive element of conscious wrongdoing.’ ” New
Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d
101, 121 (2d Cir. 2006) (quoting Kolstad, 527 U.S. at 538, 119
S.Ct. 2118). Further, punitive damages are appropriate when
the defendant's actions call for “deterrence and punishment
over and above that provided by compensatory awards.”
Wade, 461 U.S. at 54, 103 S.Ct. 1625.
Here, Lt. Laurin acted recklessly and with callous indifference
to Plaintiff's First Amendment right to the free exercise of
religion when he waited ten days to implement a religious diet
that he knew Plaintiff was entitled to and had been wrongfully
denied for the past seven months. Lt. Laurin knew religious
diet notification forms were to be filed with the kitchen on
the same day as booking, but gave no explanation for waiting
ten days after learning one had not been filed on Plaintiff's
behalf to do so, speculating only that he may have gotten “tied
up” in something. The Court further finds that an award of
punitive damages will serve the purposes of deterrence and
punishment.
The Court further finds that Lt. Laurin and Nurse Kinter
acted recklessly and with an evil motive and intent toward
Plaintiff when they removed his medical diets—a particularly
vicious action given that they were well aware how concerned
Plaintiff was about his health and diet and that he had used
commissary purchases, to eat or barter, in order to help make
up for the many meals he could not eat because they contained
pork. Indeed, they removed his medical meals less than two
weeks after Plaintiff began receiving proper religious meals,
placing him back in the position of regularly receiving meals
he could not eat. The Court further finds that an award of
punitive damages will serve the purposes of deterrence and
punishment.
*28 Accordingly, Plaintiff is entitled to punitive damages
and the Court will hold a hearing to permit evidence regarding
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the financial conditions of Defendants Laurin and Kinter, and
argument concerning an appropriate punitive damages award.
IV. CONCLUSION
For these reasons, it is hereby
ORDERED that Plaintiff is entitled to judgment in his favor
against Kevin Laurin on his First Amendment free exercise
claim; and it is further
ORDERED that Plaintiff is entitled to judgment in his
favor against Kevin Laurin and Suzanne Kinter on his First
Amendment retaliation claim; and it is further
ORDERED that Suzanne Kinter, Lawrence Bedard,
Margaret Clancy, Robert Webb, and Thomas Perry are
entitled to judgment in their favor on Plaintiff's First
Amendment free exercise claim; and it is further
ORDERED that Lawrence Bedard, Margaret Clancy, and
Eric Blaise are entitled to judgment in their favor on Plaintiff's
First Amendment retaliation claim; and it is further
ORDERED that Plaintiff is entitled to compensatory
damages in the amount of $3,000 on his First Amendment free
exercise claim; and it is further
ORDERED that Plaintiff is entitled to compensatory
damages in the amount of $7,400 on his First Amendment
retaliation claim; and it is further
ORDERED that Plaintiff is entitled to an award of punitive
damages against Kevin Laurin and Suzanne Kinter in an
amount to be determined following a hearing on April 18,
2023, at 10:00 a.m.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 2382637
Footnotes
1 Prior to trial, the Court appointed Samantha Clancy, Margaret Clancy's daughter, as guardian ad litem for
Margaret Clancy due to medical issues. (Dkt. No. 241).
2 In his Proposed Findings of Fact and Conclusions of Law, Plaintiff seeks an award of sanctions in connection
with the Special Diet Notification form, one version of which is contained in Defendants’ Exhibit 21,(Dkt.
No. 247, at 72–75), and a second version is contained in Plaintiff's Exhibit 8, see infra Figure 1. The Court
addresses this request in an Order to Show Cause that will be issued separately.
3 The CCJ 2012 “Inmate Handbook Rules/Regulations” stated: “There will be NO special diets unless ordered
by the facility nurse or doctor, and ONLY for a legitimate medical or religious reason.” (Defs.’ Ex. 24).
However, there was no evidence at trial showing that a facility nurse could order or remove a religious diet.
Nurse Kinter testified that the nurses “were always told that the healthcare office, any of us nurses, were not
allowed to do religious diets” and that she had never filled out a religious diet slip in the four years she had
worked at CCJ. (T. 389; see also T. 468 (Bedard testifying that “I would only allow the booking officer to give
me the religious diet or a nurse a medical diet”)). At most, a facility nurse could check an inmate's kitchen file
to ascertain whether that inmate had a religious diet on file. (Defs.’ Ex. 20).
4 Information about an inmate's special diet was also contained in a file in the inmate's housing unit, or “pod.” (T.
488).
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5 Plaintiff did not pursue the grievance after filing; under “Summary of facility staff attempts to resolve,” Plaintiff
placed a check-mark next to “I accept this resolution.” (Pl.’s Ex. 10). The “resolution” is not stated on the
grievance form.
6 In 2012, the holy month of Ramadan was between July and August. (T. 87). During Ramadan, Plaintiff was
required “to abstain from consuming food or beverage” from sunrise to sundown. (T. 88). In July, Plaintiff told
a corrections officer that “Ramadan is coming up” and he was “supposed to fast” and asked who he should
“speak to about getting the accommodation of fasting, of receiving a meal prior to the beginning of fast and
then a meal after fast” (T. 88–89). Plaintiff testified that he was told that CCJ would not accommodate the
fast. (T. 89). Plaintiff also testified that he filed “grievances” related to meals he received with pork during
Ramadan. (Id.). However, none of this testimony is corroborated.
7 The September 9 date is repeated in a response Lt. Laurin provided to a Prisoner Request Form Plaintiff
submitted on October 11 complaining that he was still being served pork and had not received a response
to his grievances, (Pl.’s Ex. 21; Defs.’ Ex. 16 (Lt. Laurin responding: “You have not received pork or pork
products since 9/9/12”)), and again in an October 15 response to Plaintiff's October 10 grievance regarding a
chef salad with ham, (Pl.’s Ex. 19 (Lt. Laurin responding: “You have not received pork or pork products from
the kitchen for a meal since 9/9/2012”)). However, given Lt. Laurin's testimony that he did not become aware
of Plaintiff's entitlement to Muslim meals until September 26, (T. 302, 306–07), Lt. Laurin's statements to
Plaintiff in October that Plaintiff had not received pork since September 9 were false. Had this date appeared
once, it might be explained as a typographical error, but Lt. Laurin used it in two separate documents,
and again at trial, without explanation. However, as Plaintiff has not argued that Lt. Laurin had personal
knowledge of Plaintiff's deprivation of a Muslim diet before September 26, the Court concludes Plaintiff
implicitly acknowledges the September 9 date is inaccurate. (See generally Dkt. No. 247; see also id. at 64–
65 (discussing Lt. Laurin's personal involvement and September 26 discovery “that Plaintiff had no religious
diet slip on file with the kitchen”)).
8 It was undisputed at trial that the dated form contained in Defendants’ Exhibit 21 was the authentic form. (See
Figure 1 infra Section II.D.6.). At trial, the Court took judicial notice (T. 375–76) that United States Magistrate
Judge David E. Peebles issued a Report and Recommendation recommending granting Defendants’ motion
for summary judgment as to Plaintiff's First Amendment free exercise of religion and retaliation claims in
which he noted that the “date of ‘10/5/12’ ” appeared to be written in “defendant Laurin's handwriting,” and
found “it plausible, that the version of this notice produced by defendants in support of their motion has been
‘falsified ... by removing the date written on the notification.’ ” Brandon v. Schroyer, 13-cv-939, 2016 WL
1638242, at *4, 2016 U.S. Dist. LEXIS 25003 (N.D.N.Y. Feb. 26, 2016), adopted by, 2016 WL 1639904, 2016
U.S. Dist. LEXIS 54634 (N.D.N.Y. Apr. 25, 2016), affirmed in part and reversed and remanded in part, sub
nom., Brandon v. Kinter, 938 F.3d 21 (2d Cir. 2019). The submission of the undated form to the Court is the
subject of an Order to Show Cause that will be issued separately.
9 Bedard acknowledged at trial that he was asked in an interrogatory during discovery: “When was Bedard
or anyone with the kitchen staff notified that plaintiff was issued a religious diet?” and that he provided the
following sworn response: “the kitchen staff was notified of plaintiff's religious diet from the booking officer
on or about March 2, 2012.” (T. 464). At trial, Plaintiff argued that “[p]er Defendant Bedard's interrogatory
response” the kitchen staff was notified about his religious diet on March 2. (T. 514). However, there was
no credible evidence presented at trial that Bedard or anyone in the kitchen knew of Plaintiff's religious diet
before October 5.
10 In addition, on October 3, Plaintiff also filed two Prisoner Request Forms, both seeking “a copy of all past
food grievances.” (Pl.’s Exs. 29, 30). To the first, Lt. Laurin responded: “Copies are 25 cents per page. You
will be issued a copy of grievance if accepted or appealed to the CPCRC at no charge.” (Pl.’s Ex. 29). To
the second, Lt. Laurin responded: “Previously answered.” (Pl.’s Ex. 30). Further, on October 5, Plaintiff filed
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two Prisoner Request Forms. (Pl.’s Exs. 31, 32). One seeks the address for “Prisoner Legal Services,” the
“Attorney General Office of New York,” and the “closest Legal Aid Society.” (Pl.’s Ex. 31). The other seeks
copies of “all” his food grievances. (Pl.’s Ex. 32). On October 9, Lt. Laurin responded with three addresses.
(Pl.’s Ex. 31). Lt. Laurin's undated response to Plaintiff's request for all food grievances stated “[p]reviously
answered.” (Pl.’s Ex. 32).
11 On October 11, Plaintiff also filed a Prisoner Request Form stating that he was “still being served pork” and
that he “need[ed] these issues addressed.” (Pl.’s Ex. 21). Lt. Laurin again falsely responded: “You have not
received pork or pork products since 9/9/12.” (Id.). Because Plaintiff provided no testimony regarding the
factual circumstances underlying this complaint, and the parties do not advance any arguments regarding
this complaint, and given that Plaintiff submitted it the day after he filed his October 10 grievances, (Pl.’s Exs.
19, 20), to which Lt. Laurin had yet to respond, the Court concludes that Plaintiff was complaining about the
meals he received on October 10 (rather than an additional pork meal).
12 On October 15, Plaintiff also filed a Prisoner Request Form seeking the address for the State Commission
of Corrections. (Pl.’s Ex. 37).
13 In a decision dated October 25, regarding the October 14 grievance regarding the lack of response to his prior
food grievances, Lt. Laurin stated that three of Plaintiff's grievances had been “mailed” for further appeal,
that four were with “the Jail Administrator,” and there “were 13 others not counting this one” and that none
of Plaintiff's grievances were “being ignored.” (Pl.’s Ex. 35). The same day, Lt. Laurin issued a decision
regarding the October 15 grievance seeking copies. (Pl.’s Ex. 36 (referring to Pl.’s Ex. 34))
14 Plaintiff was “confused about” being called to go to sick call because typically, inmates were required to “fill
out a form to go”—“they don't just call you.” (T. 115–16).
15 There was no evidence of a “new” “meal slip” presented at trial.
16 Plaintiff testified that he thought he received a second pork meal later on that day but unlike his testimony
about other pork meals, which detailed the type of pork and surrounding circumstances, his testimony was
nonspecific and he seemed uncertain. (See T. 144 (“I think I received it later on that day -- or like, later on
that day I believe I received another meal with pork”)). The Court therefore declines to credit this testimony.
17 On October 27, 2012, Plaintiff filed a “Prisoner Request Form.” (Pl.’s Ex. 24). The top portion of the form is
unreadable. (Id.). The response states: “Medical does not do religious diet. See security.” (Id.). The form is
signed by Nurse Kinter and dated October 29. (Id.).
18 If an inmate checked the line next to “I do not accept this resolution and wish to file a formal grievance,” it
was deemed an appeal and sent to the grievance coordinator, who was required to respond to the grievance
within five days. (T. 295). Once the grievance coordinator responded, the grievance was returned to the
inmate, who then had two days to accept or appeal the response. (T. 295–96).
19 Plaintiff argues that because Defendants did not argue personal involvement on summary judgment, the
mandate rule bars “its consideration here.” (Dkt. No. 247, at 68). The Court disagrees. “[T]he so-called
mandate rule bars re-litigation of issues already decided on direct appeal” and also “prevents re-litigation in
the district court” of matters expressly decided or impliedly resolved by the appellate court. Yick Man Mui v.
United States, 614 F.3d 50, 53 (2d Cir. 2010). In reversing the district court's entry of summary judgment,
the Second Circuit did not expressly or impliedly resolve the issue of personal involvement. Moreover, “[t]he
role of the appellee is to defend the decision of the lower court. This Court has not held that an appellee
is required, upon pain of subsequent waiver, to raise every possible alternate ground upon which the lower
court could have decided an issue.” Brown v. City of New York, 862 F.3d 182, 188 (2d Cir. 2017).
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20 The Second “Circuit has not stated whether a First Amendment free exercise claim requires more than
negligence.” Brandon, 938 F.3d at 38. The parties here assume that it does and advance arguments
concerning whether Defendants acted with deliberate indifference in serving Plaintiff pork. (Dkt. No. 247, at
63–67; Dkt. No. 250, at 30–41).
21 Defendants do not dispute that that this ten-day deprivation of a religious diet constituted a substantial burden.
See Brandon, 938 F.3d at 36 (observing that “when Muslim inmates are served meals containing pork, they
are faced with the choice of disobeying the commands of their faith or not eating”).
22 There was no corroboration of the report that Bedard mistakenly gave Plaintiff ham soup. Indeed, Bedard
testified that it was the “cook's duty” on the food line to serve the main course, including the soup, (T. 444),
that he was “not always on th[e] food line,” but that when he was, he helped in small ways, such as placing
condiments, crackers, or cookies on meal trays. (T. 451).
23 Plaintiff estimated, based on the menu, that he received two to four pork meals per week while on a regular
diet. (T. 49).
24 (Pl.’s Ex. 14 (medical diet not followed, filed September 15); Pl.’s Ex. 15 (served pork and tomatoes in violation
of religious and medical diets, filed September 24); Pl.’s Ex. 16 (served pork and tomatoes in violation of
religious and medical diets, filed September 24); Pl.’s Ex. 26 (served tomatoes in violation of medical diet,
filed October 1); Pl.’s Ex. 27 (served sandwich with tomatoes in violation of medical diet, filed October 1);
Pl.’s Ex. 28 (served tomato soup in violation of medical diet and requests copies of food grievances, filed
October 2); Pl.’s Ex. 18 (served ham or turkey ham for lunch on October 9 in violation of religious diet and
received conflicting information about whether ham steak served on September 9 was turkey or ham, filed
October 9); Pl.’s Ex. 19 (served chef salad with ham in violation of religious diet, filed October 10); Pl.’s Ex.
20 (served chef salad with ham in violation of religious diet, filed October 10); Pl.’s Ex. 34 (requests copies of
food grievances, filed October 11); Pl.’s Ex. 35 (requests response to grievances about medical and religious
diets, filed October 14); Pl.’s Ex. 36 (requests copies of food grievances and objects to charge for copies,
filed October 15); Pl.’s Ex. 38 (served peanut butter in violation of medical diet, filed October 15)).
25 Nurse Kinter explained at trial that “cholesterol can cause a lot of different problems in your body,” including
a stroke, a heart attack, and blocked arteries. (T. 396).
26 Defendants make no arguments and cite no case law to the contrary.
27 Because Plaintiff was incarcerated at the time he commenced this action, (see Dkt. No. 1), this provision
continues to apply. Cf. Cano v. City of New York, 44 F. Supp. 3d 324, 331 (E.D.N.Y. 2014) (explaining that
Ҥ 1997e(e) does not bar Plaintiffs, who were not incarcerated at the time they filed this action, from seeking
any category of damages”); In re Nassau Cnty. Strip Search Cases, No. 99-cv-2844, 2010 WL 3781563, at
*5, 2010 U.S. Dist. LEXIS 99783 (E.D.N.Y. Sept. 22, 2010) (“PLRA's recovery limitation ... does not apply to
plaintiffs not incarcerated at the time the action is brought”).
28 No Westlaw cite available.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Brik v. Brodie, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4373557
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Roman BRIK, Plaintiff,
v.
Margo K. BRODIE; Ann M. Donnelly, Defendants.
23-CV-4330 (LJL)
|
Signed July 5, 2023
|
Filed July 6, 2023
Attorneys and Law Firms
Roman Brik, Staten Island, NY, Pro Se.
MEMORANDUM & ORDER OF SERVICE
LEWIS J. LIMAN, United States District Judge:
*1 Plaintiff, who is appearing pro se, seeks declaratory and
injunctive relief in this action against Chief United States
District Judge Margo K. Brodie and District Judge Ann M.
Donnelly. By order dated July 5, 2023, the Court granted
Plaintiff's request to proceed in forma pauperis (IFP), that is,
without prepayment of fees.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis 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 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.
DISCUSSION
A. Claims against District Judge Ann M. Donnelly
Plaintiff alleges that District Judge Ann M. Donnelly's actions
in his cases before her violated his constitutional rights. He
seeks a declaratory judgment that her actions in those cases
were unlawful and violated his constitutional rights to due
process and equal protection and an injunction enjoining
Judge Donnelly from retaliating against him. (ECF 1 at 4.)
“[J]udicial immunity does not bar a claim for prospective
injunctive and declaratory relief.” Shtrauch v. Dowd, 651 F.
App'x 72, 73 (2d Cir. 2016) (citing Pulliam v. Allen, 466 U.S.
522, 541-43 (1984)). Nevertheless, Plaintiff is not entitled
to declaratory relief for his claims against Judge Donnelly
because he seeks such relief based on her past conduct. See id.
at 74 (holding that the plaintiff was not entitled to declaratory
relief because he alleged “only past conduct and does not
seek to prevent an ongoing or future violation of federal
law” (relying on Blanciak v. Allegheny Ludlum Corp., 77 F.3d
690, 698 (3d Cir. 1996))).
*2 Plaintiff does suggest that Judge Donnelly will retaliate
against him in the future for his exercise of his First
Amendment rights. Even if, under the assignment rules,
Plaintiff's future cases are assigned to Judge Donnelly as
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related to another open case before her, he does not allege a
“present, continuing violation of federal law,” Blanciak, 77
F.3d at 698, and there is no reason to assume that she would
violate his rights in the future. Because Plaintiff thus does
not seek to remedy a harm that is truly prospective, he does
show any entitlement to declaratory relief. Plaintiff's remedy
for any alleged bias on the part of Judge Donnelly in her
judicial decisions is an appeal. See LeDuc v. Tilley, No. 05-
CV-0157, 2005 WL 1475334, at *7 (D. Conn. June 22, 2005)
(“[D]eclaratory relief against a judge for actions taken within
his or her judicial capacity is ordinarily available by appealing
the judge's order.”).
The Court therefore dismisses Plaintiff's claims for
declaratory and injunctive relief against Judge Donnelly for
failure to state a claim on which relief can be granted.
B. Challenge to Rule 3 of the Rules for the Division of
Business Among Judges
Plaintiff seeks a declaration that assignment of pro se cases,
under the Rules for the Division of Business for the Eastern
District of New York, violates his constitutional rights. He can
also be understood as seeking to enjoin enforcement of the
relevant rules. Because Plaintiff has been granted permission
to proceed IFP, he is entitled to rely on the Court and the U.S.
Marshals Service to effect service. 1 Walker v. Schult, 717
F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d)
(“The officers of the court shall issue and serve all process ...
in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order
the Marshals Service to serve if the plaintiff is authorized to
proceed IFP).
To allow Plaintiff to effect service on Defendant Chief United
States District Judge Margo K. Brodie through the U.S.
Marshals Service, the Clerk of Court is instructed to fill
out a U.S. Marshals Service Process Receipt and Return
form (“USM-285 form”) for this Defendant. The Clerk of
Court is further instructed to issue a summons and deliver
to the Marshals Service all the paperwork necessary for the
Marshals Service to effect service upon Defendant.
If the complaint is not served within 90 days after the date the
summonses are issued, Plaintiff should request an extension
of time for service. See Meilleur v. Strong, 682 F.3d 56, 63
(2d Cir. 2012) (holding that it is the plaintiff's responsibility to
request an extension of time for service). Plaintiff must notify
the Court in writing if his address changes, and the Court may
dismiss the action if Plaintiff fails to do so.
CONCLUSION
Plaintiff's claim for declaratory and injunctive relief against
District Judge Ann M. Donnelly is dismissed.
The Clerk of Court is instructed to (1) send an information
package to Plaintiff; and (2) issue a summons for Chief
United States District Judge Margo K. Brodie, complete the
USM-285 form with the address for this defendant, and
deliver to the U.S. Marshals Service all documents necessary
to effect service.
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 in forma pauperis status is denied for the purpose
of an appeal. Cf. Coppedge v. United States, 369 U.S. 438,
444-45 (1962) (holding that an appellant demonstrates good
faith when he seeks review of a nonfrivolous issue).
*3 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4373557
Footnotes
1 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served
within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service
until the Court reviewed the complaint and ordered that the summons be issued. The Court therefore extends
the time to serve until 90 days after the date the summons is issued.
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Brown v. City of New York, Not Reported in F.Supp.3d (2014)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 5089748
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Robert K. BROWN, Plaintiffs,
v.
The CITY OF NEW YORK et al., Defendants.
No. 12CV3146–LTS–GWG.
|
Signed Sept. 30, 2014.
MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, District Judge.
*1 Plaintiff Robert K. Brown (“Plaintiff”) brings this action
against Defendants the City of New York (“City of New
York”) and New York City Police Department (“N.Y.P.D.”)
Officers Marcus McCoy (“McCoy”) and Stephen Janec 1
(“Janec,” collectively, “Defendants”), pursuant to 42 U.S.C.
§ 1983, asserting federal claims for false arrest, unlawful
imprisonment and malicious prosecution, as well as state
law claims for false arrest and intentional infliction of
emotional distress, stemming from Plaintiff's December 13,
2010, arrest and subsequent imprisonment. 2 Defendants
move for summary judgment, pursuant to Federal Rule of
Civil Procedure 56, arguing that there was probable cause
to arrest the Plaintiff; that any search and/or imprisonment
of the Plaintiff was lawful; that Plaintiff fails to state a
claim for malicious prosecution; and that, to the extent that
Plaintiff intends to bring any state law claims, those claims are
meritless. The Court has jurisdiction of this action pursuant
to 28 U.S.C. §§ 1331 and 1367. The Court has considered
carefully the parties' submissions and arguments and, for the
following reasons, the Defendants' motion is granted in its
entirety.
BACKGROUND 3
Plaintiff was arrested on December 13, 2010, shortly after
1:00 p .m., in the vicinity of 84th Street and Park Avenue in
Manhattan, New York. (Def. 56.1 St. ¶ 8.) Earlier that day, two
men, identified as E.K. and O.M., had called the authorities
to report that the van that they were using, which belonged
to Wynne Plumbing and Heating, had been broken into while
it was parked on 85th Street. (Id. ¶ 6.) Defendants McCoy
and Janec responded to the complaint, which they heard about
over the police radio. (Id. ¶ 7.) 4
The two complainants, E.K. and O.M., told Officer McCoy
that they had seen Plaintiff in the driver's seat of the van,
attempting to start the ignition in the van and that, when E.K.
followed Plaintiff as he attempted to flee, the Plaintiff waved
a hammer near E.K.'s face and said something to the effect of
“wait a second.” (Def. 56.1 St. ¶¶ 9–11.) Officer Janec's memo
book indicates that he watched a surveillance video of the
parked van at 1:25 p.m., after Plaintiff was arrested. (Lulich
Decl., Ex. L.) In his opposition to Defendants' motion for
summary judgment, Plaintiff repeatedly alleges that, because
he cannot be seen in the video, it exonerates him, and that
McCoy violated his rights and was complicit in a false arrest
and malicious prosecution by suppressing or withholding the
“exculpatory” video. The Court has reviewed the security
video, a copy of which was provided to the Court by the
Defendants. It shows only a partial view of the van and
neither the passenger side door of the van, through which the
Plaintiff is accused of having entered, nor pedestrian traffic
approaching the door on that side of the vehicle is visible.
(Lulich Decl., Ex. M.)
E.K. and O.M. identified Plaintiff as the person who had
broken into their van and he was arrested near the scene of the
crime, at 84th Street and Park Avenue. (Def. 56.1 St. ¶¶ 7–9.)
When he was arrested, a backpack containing, among other
things, a hammer, screwdrivers and a knife, was vouchered
as evidence belonging to the Plaintiff. (Lulich Decl., Ex.
H.) Plaintiff denies that the hammer, screwdrivers and knife
were his, and asserts that they were actually plumbing tools
belonging to E.K. and O.M. that were found on the ground.
(Pl. 56.1 St. ¶ 7; Pl. Mem. in Opp. (ECF docket no. 43) at ECF
p. 63.) Plaintiff also alleges that he had been “in a pizzaria[sic]
having coffee-tea and pastries with a woman at 86th Street
and the corner of Lexington Avenue,” and then had walked
up 84th Street to Park Avenue to pick up a car that he had
borrowed, before he was arrested. (Pl. 56.1 St. ¶ 7; Pl. Mem. in
Opp. at ECF p. 21.) Plaintiff contends that Defendants McCoy
and Janec pulled up in the police car next to Plaintiff and
jumped out of the car, that one of the police officers had a
gun in his hand and that they handcuffed the Plaintiff and
forcefully searched him before putting him in the back seat of
the police car. (Pl. Mem. in Opp at ECF p. 21.)
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Brown v. City of New York, Not Reported in F.Supp.3d (2014)
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*2 Plaintiff alleges that he was then made to wait in the
police car with the heater running full blast and that, as a
diabetic with high blood pressure and asthma, he suffered
from having his blood circulation restricted by the handcuffs
with the heat running so high. (Id.) According to Plaintiff,
when Defendants McCoy and Janec returned to the police car
he told them that he was having breathing problems and heart
palpitations and they arranged to have an ambulance meet
them at the police station and take him to the hospital. (Id.) 5
Plaintiff states that he was returned to the police station six to
eight hours later, after being treated at the hospital, and that
Defendant McCoy, while processing Plaintiff's paperwork,
made a comment to the effect of “what was being done to the
plaintiff was not right and that this is not what he joined the
police department for.” (Id. at ECF p. 24.) Plaintiff further
alleges that Detective Lisa Moran, who had been involved in
an arrest of Plaintiff on November 3, 2010, told Plaintiff that
“[y]ou will not be getting out of jail this time because I will
be making sure of it.” (Id.)
Plaintiff's arrest was processed at the 19th Precinct and his
pants and shirt from the time of his arrest were vouchered
as evidence. (Def. 56.1 St. ¶ 12.) Plaintiff alleges that he
remained naked (or in his underwear) and handcuffed for
approximately ten minutes, before he was given back his
“Red, White and Blue Jacket, his underwear, undershirt, and
tan boots along with hospital pajamas to wear.” (Pl. 56.1 St.
¶ 12.) (Compare Pl. Mem. In Opp. at ECF p. 26 with Lulich
Decl., Ex. B., Tr. 111:9–112:6 .)
At the time of his arrest, Plaintiff was on parole and was in
violation of the conditions of his parole. 6 (Def. 56.1 St. ¶¶ 4–
5, 8.) On November 3, 2010, Plaintiff had been arrested for,
among other crimes, criminal possession of stolen property
and unlawful use of a motor vehicle. (Id. ¶ 4.) The November
3, 2010, charges were pending in New York County Supreme
Court under case number 2010–05448 at the time of the arrest
that forms the basis of Plaintiff's allegations in this case.
Plaintiff had not reported the November 3, 2010, arrest to his
parole officer and had missed at least four mandatory check-
ins with that officer by December 13, 2010. (Id. ¶ 5.) 7
On December 14, 2010, Plaintiff was arraigned for attempted
grand larceny in the fourth degree, menacing in the third
degree, auto stripping in the third degree, criminal mischief in
the fourth degree, and possession of burglar's tools under New
York County Criminal Court number 2010NY091520. (Id. ¶
13.) E.K. and O.M. identified the Plaintiff as the perpetrator
of the break-in of their van and signed affidavits attesting
to this. Plaintiff's bail was set at $1.00 because there was a
parole hold on Plaintiff. (Def. 56 .1 St. ¶ 13.) 8 Following his
arraignment, Plaintiff was remanded into custody of the New
York City Department of Correction (“DOC”) for violating
his parole—not because of the criminal charges arising out of
the December 13, 2010, incident. (Id. ¶ 14.)
*3 From December 13, 2010, until March 28, 2012, the
charges under New York Supreme Court case no.2010–
05448 and New York Country Criminal Court docket no.
2010NY091520 were both pending against the Plaintiff as
separate actions. (Id. ¶ 15.) During the criminal proceedings
in New York County Supreme Court case no.2010–0558,
Plaintiff was evaluated by at least two mental health
professionals and found to be unfit to proceed to trial. (Id. ¶
16.) In July 2011, Plaintiff was transferred to the Mid–Hudson
Psychiatric Center, upon an Order of Commitment, and was
treated there until September 2011, when he was transferred
back into custody at Riker's Island. (Id.; Pl. 56.1 St. ¶ 16.)
On March 14, 2012, following a bench trial, Plaintiff was
convicted of criminal possession of stolen property in the
fourth degree and unauthorized use of a vehicle in the second
degree, under case number 2010–05448. (Pl. 56.1 St. ¶ 17;
Def. 56.1 St. ¶ 17.) 9 On March 28, 2012, Plaintiff was
sentenced to two to four years on each charge. (Def. 56.1
St. ¶ 17.) However, if Plaintiff had been tried and convicted
of the charges brought under docket number 2010NY09150,
any sentence would statutorily have been required to run
concurrently with, and not have exceeded, the sentence
already imposed under case 2010–05548. Therefore, on April
10, 2012, the charges relating to the instant arrest under
case number 2010NY091520 were dismissed as covered
by Plaintiff's conviction in case number 2010–05448. (Def.
56.1 St. ¶ 18.) 10 Neither Defendant McCoy nor Janec
testified in any of Plaintiff's criminal proceedings. (Id. ¶ 19.)
From December 14, 2010, to March 28, 2012, Plaintiff was
incarcerated because he violated parole prior to the December
13, 2010, arrest and from March 28, 2012, he was incarcerated
pursuant to his conviction in case number 2010–05448. (Id.
¶ 22.) The only period during which Plaintiff was held on
account of the charges for which he was arrested on December
13, 2010, was from the time of the arrest until his December
14, 2010, arraignment on the charges.
DISCUSSION
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Under Federal Rule of Civil Procedure 56(a), a Court should
grant summary judgment when “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The moving party
bears the burden of showing that it is entitled to summary
judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a
“material fact” is one that might affect the outcome of a suit
under governing law. See Kinsella v. Rumsfeld, 320 F.3d 309,
311 (2d Cir.2003). When reviewing the record, the Court
must assess the evidence in “the light most favorable to the
[non-moving party]” and resolve all ambiguities and draw
all inferences in its favor. Tufariello v. Long Island R. Co.,
458 F.3d 80, 85 (2d Cir.2006). However, the party opposing
summary judgment must put forth more than a “scintilla of
evidence,” Anderson, 477 U.S. at 252, and “cannot defeat
the motion by relying on the allegations in [its] pleading,
or on conclusory statements.” Gottlieb v. Cnty. of Orange,
84 F.3d 511, 518 (2d Cir.1986) (internal citation omitted).
To defeat the motion, the non-moving party “must set forth
specific facts showing that there is a genuine issue for trial .”
Anderson, 477 U.S. at 248.
*4 Where a plaintiff is proceeding pro se, the Court must
read the plaintiff's papers liberally and interpret them “to
raise the strongest arguments that they suggest.” Triestman v.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (internal
citation omitted). However, a “pro se party's bald assertions
cannot overcome a motion for summary judgment” and the
plaintiff must provide the court with “some basis to believe
that his version of relevant events is not fanciful.” Yearwood
v. LoPiccolo, No. 95 CV 2544, 1998 WL 474073, at *3
(S.D.N.Y. Aug. 10, 1998) (internal quotation marks and
citations omitted); see also Saldana v. Local 32B–32J Serv.
Emps. Int'l Union, No. 03 CV 1853, 2005 WL 66895, at *2
(S.D.N.Y. Jan. 12, 2005) (“[e]ven a pro se plaintiff [ ] cannot
withstand a motion for summary judgment by relying merely
on the allegations of a complaint”).
Individual Defendants McCoy and Janec
False Arrest Claim
Defendants move for summary judgment on Plaintiff's false
arrest claim, which is asserted as a Fourth Amendment
violation claim pursuant to 42 U.S.C. § 1983, as well as under
New York state law. Plaintiff opposes the motion, arguing
that it should be denied because the evidence would support
a finding that the arrest was illegal, for lack of probable
cause. A section 1983 claim for false arrest is “substantially
the same” in all relevant respects as a claim for false arrest
under state law. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d
Cir.2003). Thus, in order to state a claim for false arrest, a
plaintiff must show that “(1) the defendant intended to confine
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.” Savino v. City of
New York, 331 F.3d 63, 75 (2d Cir.2003) (quoting Bernard v.
United States, 25 F.3d 98, 102 (2d Cir.1994)); see also Hart v.
City of New York, No. 11 CV 4678(RA), 2013 WL 6139648,
at *3 (S.D.N.Y. Nov.18, 2013).
“[T]he existence of probable cause is an absolute defense
to a false arrest claim.” Jaegly v. Couch, 439 F.3d 149, 152
(2d Cir.2006). “ ‘Probable cause to arrest exists when the
arresting officer 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.’
“ Torraco v. Port Authority of New York and New Jersey,
615 F.3d 129, 139 (2d Cir.2010) (quoting Escalera v. Lunn,
361 F.3d 737, 743 (2d Cir.2004)). “[T]he probable cause
standard is far below that of reasonable doubt.” Husbands
v. City of New York, 335 F. App'x 124, 127 (2d Cir.2009).
“The inquiry is limited to whether the facts known by the
arresting officer at the time of the arrest objectively provided
probable cause to arrest.” Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir.2013) (internal quotation marks
and citation omitted). Courts must look to the totality of the
circumstances, keeping in mind that “probable cause does
not require absolute certainty.” Panetta v. Crowley, 460 F.3d
388, 395 (2d Cir.2006) (internal quotation marks and citations
omitted).
*5 Police officers do not have an affirmative duty to
investigate allegations made by a complaining witness
prior to effectuating an arrest. See Jaegly, 439 F.3d at
153. Police have probable cause to arrest if they receive
“information from some person, normally the putative victim
or eyewitness, who it seems reasonable to believe is telling the
truth.” Miloslavsky v. AES Eng'g Soc'y Inc., 808 F.Supp. 351,
355 (S.D.N.Y.1992), aff ‘d, 993 F.2d 1534 (2d Cir.1993). “The
veracity of citizen complaints [sic] who are the very victims
of the very crime they report to the police is assumed.” Id.
Finally, even “the fact that an innocent explanation may be
consistent with the facts alleged ... does not negate probable
cause.” Waldron v. Milana, ––– F.App'x ––––, 2013 WL
4733215, at *3 (2d Cir.2013) (internal quotation marks and
citation omitted).
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Here, it is undisputed that Defendants McCoy and Janec
responded to a report made by the two complaining victims,
O.M. and E.K., regarding a vehicle break-in the vicinity of
85th Street and Madison Avenue. (Def. 56.1 St. ¶¶ 6–7.) O.M.
and E.K. told Defendant McCoy that they saw the Plaintiff
attempting to break into the van and E.K. told the police
that the Plaintiff held up a hammer and told him to “wait a
second.” (Id. ¶¶ 8–11.) Plaintiff was arrested in the vicinity of
Park Avenue and 84th Street, within half an hour of the time
of the break-in, after having been identified by the victims.
(Id. ¶ 8.) These circumstances are sufficient as a matter of
law to establish the absolute defense of probable cause. See,
e.g., Bacci v. Fairway Mkt., No. 06 CV 2407(DAB), 2008 WL
2139132, at *6–7 (S.D.N.Y. May 19, 2008) (finding probable
cause for petit larceny and possession of stolen property
where police officers were informed by employee that the
employee observed plaintiff attempting to leave with unpaid
for items concealed on his person). Plaintiff's argument that
probable cause was lacking turns principally on his contention
that, having seen the surveillance video immediately after the
arrest, Defendant McCoy should have understood that the
complainants' accusations were baseless. As explained above,
however, the surveillance video does not exonerate Plaintiff
because, although he is not seen in it, the van door that he is
alleged to have broken into and that side of the van are not
visible. Plaintiffs' arguments thus have no evidentiary basis
and are insufficient to frame a genuine factual dispute as to
the existence of probable cause.
Defendants' motion for summary judgment on Plaintiff's
federal and state law false arrest claims as against Defendants
McCoy and Janec is granted. To the extent that Plaintiff
also asserts claims of false imprisonment, they are dismissed
as well, because false arrest and false imprisonment are
synonymous under New York law. See Posr v. Doherty, 944
F.2d 91, 96 (2d Cir.1991).
Unlawful Search Claim
Plaintiff appears to allege that he was subject to an unlawful
strip search following his arrest, but he does not assert this
cause of action as a separate claim. (See, e.g., Compl. ¶ 4; Pl.
Mem. in Opp. at ECF p. 25.) Reading Plaintiff's papers in the
light most favorable to him, however, the Court assumes that
Plaintiff intends to assert such a claim. According to Plaintiff,
after his arrest, while he was being processed, members of
the N.Y.P.D.'s Emergency Services Unit collected his clothing
and then left him alone and naked or with underwear only for
approximately ten minutes before bringing him some hospital
pajamas and telling the Plaintiff to put back on his socks,
boots and heavy jacket. (Pl. Mem. in Opp. at ECF p. 26.) 11
*6 Even drawing all inferences in Plaintiff's favor, the
search of Plaintiff was justified as a matter of law, both
as a search pursuant to a lawful arrest and as a reasonable
penological measure to protect the safety of the other inmates.
See Illinois v. Lafayette, 462 U.S. 640, 645–46, 103 S.Ct.
2605, 77 L.Ed.2d 65 (1983) (“[a] custodial arrest of a suspect
based on probable cause is a reasonable intrusion under the
Fourth Amendment; that intrusion being lawful, a search
incident to the arrest requires no additional justification”;
“[a]t the stationhouse, it is entirely proper for the police to
remove and list or inventory property found on the person
or in the possession of an arrested person who is to be
jailed.”); see also Florence v. Board of Chosen Freeholders
of County of Burlington, ––– U.S. ––––, 132 S.Ct. 1510, 182
L.Ed.2d 566 (2012) (holding that the practice of conducting
a strip search on all arrestees, regardless of severity of the
underlying offense or individualized suspicion of possession
of contraband, does not violate the Fourth Amendment). “[I]f
an arrestee is taken to the police station, that is no more than
a continuation of the custody inherent in the arrest status....
The governmental interests underlying a stationhouse search
of the arrestee's person and possessions may in some
circumstances be even greater than those supporting a search
immediately following arrest.” Lafayette, 462 U.S. at 645.
However, the Fourth Amendment requires that strip searches
of inmates be reasonable, see Hodges v. Stanley, 712 F.2d
34, 35 (2d Cir.1983) (per curiam) (citing Bell v. Wolfish, 441
U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)) and
that “the need for a particular search [ ] be balanced against
the resulting invasion of personal rights,” Florence, 132 S.Ct.
at 1516 (2012) (citation omitted). In determining whether a
particular strip search is reasonable, a court “must consider
the scope of the particular intrusion, the manner in which it
is conducted, the justification for initiating it, and the place
in which it is conducted.” Bell, 441 U.S. at 559 (collecting
cases).
Here, there was a reasonable suspicion that Plaintiff was
engaged in criminal activity as he was found with burglar's
tools and a knife at the time of his arrest near the vicinity of
the crime, and was identified by two complaining witnesses.
After his arrest, it was reasonable to search Plaintiff when
processing him, both for evidence from the alleged crime
and for safety reasons. Arnold v. Westchester Cnty., No.
09 CV 3727, 2012 WL 336129, at *11 (S.D.N.Y. Feb.3,
2012) (“prison officials have an obligation to take reasonable
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measures to protect the safety of the prison's inmates.”),
report & rec. adopted by 2012 WL 841484 (S.D.N.Y. Mar 13,
2012). The approximately ten-minute delay in which Plaintiff
was naked or wearing underwear that Plaintiff contends
occurred while he was waiting for his clothing to be returned,
while likely unpleasant for the Plaintiff, does not make the
search unreasonable or unlawful. Defendants' motion for
summary judgment is granted as to Plaintiff's unlawful search
claim as against Defendants McCoy and Janec.
Malicious Prosecution Claim
*7 Plaintiff also asserts a section 1983 claim for malicious
prosecution in violation of his Fourth Amendment rights.
The law imposes “a heavy burden on malicious prosecution
plaintiffs.” Rothstein v. Carriere, 373 F.3d 275, 282 (2d
Cir.2004) (citation omitted). To prevail on a section 1983
claim for malicious prosecution, a plaintiff must first establish
the elements of a malicious prosecution claim under state law.
See, e.g., Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir.1989).
“To recover on a claim of malicious prosecution under New
York law, a plaintiff must establish four elements: that (1)
the defendant either commenced or continued a criminal
proceeding against him; (2) that the proceeding terminated
in his favor; (3) that there was no probable cause for the
criminal proceeding; and (4) that the criminal proceeding
was instituted in actual malice.” Russo v. State of N. Y., 672
F.2d 1014, 1018 (2d Cir.1982) (internal citations omitted).
In addition to satisfying the state law elements, for a section
1983 claim to succeed there must also be a showing of “a
sufficient post-arraignment liberty restraint to implicate the
plaintiff's Fourth Amendment rights.” See Rohman v. New
York City Transit Authority (N.Y.CTA), 215 F.3d 208, 215
(2d Cir.2000). Defendants are entitled to summary judgment
dismissing Plaintiff's malicious prosecution claim for three
principal reasons: there is no evidence that Defendants
“initiated” the prosecution within the meaning of the relevant
legal standards; there was probable cause to support the
prosecution; and the prosecution was not terminated in
Plaintiff's favor.
“Initiation in [the context of malicious prosecution] is a term
of art,” involving more than merely reporting a crime and
giving testimony. “It must be shown that defendant played
an active role in the prosecution, such as giving advice
and encouragement or importuning the authorities to act ...
One who does no more than disclose to a prosecutor all
material information within his knowledge is not deemed to
be the initiator of the proceeding.” Rohman, 215 F.3d at 217
(internal quotation marks and citations omitted). An arrest
alone “cannot serve as the predicate deprivation of liberty
required by the Fourth Amendment because it occurred prior
to [a defendant's] arraignment and without a warrant.” Singer
v. Fulton County Sheriff, 63 F.3d 110, 116–17 (2d Cir.1995).
“Once a criminal defendant has been formally charged, the
chain of causation between the officer's conduct and the claim
of malicious prosecution is broken by the intervening acts of
the prosecutor, thereby abolishing the officer's responsibility
for the prosecution.” Jouthe v. City of New York, No. 05 CV
1374(NGG), 2009 WL 701110, at *11 (E.D.N.Y. March 10,
2009) (internal quotation marks and citation omitted).
Plaintiff argues that Defendant McCoy initiated the
prosecution against the Plaintiff by signing the criminal
complaint and that Defendant Janec helped to initiate the
prosecution by signing the supporting affidavit. However,
although McCoy swore out the criminal court complaint,
the information regarding Plaintiff's alleged activities was
obtained from the two complaining victims. Merely signing
the criminal complaint and/or reporting the material
information known to the officer does not override the
independent prosecutorial judgment of the assistant district
attorney in deciding whether to bring charges. Plaintiff also
seems to allege that Defendants McCoy and Janec initiated
the prosecution by withholding the security video from the
District Attorney's Office Office, when the video would have
allegedly exonerated him. However, there is no evidence in
the record to support this contention. In fact, the Voluntary
Disclosure Form, signed by the assistant district attorney,
indicates that the District Attorney's Office was in possession
of the video. (See Lulich Decl., Ex. N. “Voluntary Disclosure
Form.”) There is also no evidence to support Plaintiff's
contention that the video exonerates him.
*8 Even if Defendants McCoy and Janec could be found
to have “initiated” Plaintiff's prosecution, the “existence
of probable cause is a complete defense to a claim of
malicious prosecution in New York.” Savino, 331 F.3d at 72
(2d Cir.2003). “The determination of probable cause in the
context of malicious prosecution is essentially the same as for
false arrest, ‘except that [a claim for malicious prosecution]
must be evaluated in light of the facts known or believed
at the time the prosecution is initiated, rather than at the
time of arrest.’ “ Danielak v. City of New York, No. 02 CV
2349, 2005 WL 2347095 at * 10 (E.D.N.Y. Sept.26, 2005)
(internal quotation marks and citation omitted), aff'd, 209
F. App'x 55 (2d Cir.2006). “In order for probable cause to
dissipate, the groundless nature of the charges must be made
apparent by the discovery of some intervening fact.” Lowth v.
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Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996). Here,
no new facts came to light after Plaintiff's arrest, and both
E.K. and O.M. remained consistent in their identification of
plaintiff and their accusations against him. N.Y.P.D. records
further show that Defendant McCoy vouchered evidence (e.g.
screwdrivers, a hammer etc.) that supported the complaining
victims' allegations following plaintiff's arrest, suggesting
that the strength of the evidence against plaintiff increased
after his arrest. Nor does the record support Plaintiff's
allegation that the security video proves his innocence.
As Plaintiff has not established the first two elements of
his malicious prosecution claim, the claim necessarily fails.
However, there are also no facts from which the Court could
infer that defendants were motived by actual malice, see,
e.g., Fulton v. Robinson, 289 F.3d 188, 198 (2d Cir.2002)
(affirming grant of summary judgment for defendants after
the plaintiff failed to present evidence of actual malice),
or that the proceedings were terminated in Plaintiff's favor,
which only occurs when the final disposition of the case: (1)
involves the merits and (2) tends to indicate the accused's
innocence as opposed to a dismissal of cumulative charges.
See, e.g., Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir.1997).
“Where a prosecution did not result in an acquittal, it is
generally not deemed to have ended in favor of the accused,
for purposes of a malicious prosecution claim, unless its final
disposition is such as to indicate the accused's innocence.”
Fulton, 289 F.3d at 196. As explained above, the record
indicates that the charges were dismissed as duplicative
for sentencing purposes of charges on which Plaintiff had
already been convicted and sentenced. That outcome is
not indicative of Plaintiff's innocence of the dismissed
charges. Accordingly, the Court grants Defendants' motion
for summary judgment as to Plaintiff's claim for malicious
prosecution against Defendants McCoy and Janec and that
claim is dismissed.
Municipal Liability
*9 Plaintiff also asserts a claim under 42 U.S.C. § 1983
against the City of New York. In order to state a claim
against a municipality under section 1983, a plaintiff must
adequately allege that a deprivation of his constitutional
rights was caused by an official policy or custom of that
municipality. Monell v. Dep't of Social Servs., 436 U.S. 658,
692–94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because
Plaintiff has failed to present evidence that demonstrates that
his constitutional rights were violated, the city is entitled as
a matter of law to summary judgment dismissing Plaintiff's
section 1983 claims against it. See Askins v. Doe No. 1,
727 F.3d 248, 253 (2d Cir.2013) (“[u]nless a plaintiff shows
that he has been the victim of a federal law tort committed
by persons for whose conduct the municipality can be
responsible, there is no basis for holding the municipality
liable[;] Monell does not create a stand-alone cause of
action under which a plaintiff may sue over a governmental
policy, regardless of whether he suffered the infliction of
a tort resulting from the policy”). If a plaintiff fails to
plausibly allege that municipal employees violated his or her
constitutional rights, the plaintiff's Monell claim “necessarily
fails as well” as against the municipal entity. Kajoshaj v.
New York City Dep't of Educ., ––– F. App'x ––––, 2013 WL
5614113, at *4 (2d Cir. Oct 15, 2013). 12 Plaintiff's state law
claims against the city based on respondeat superior or agency
theories, for false arrest, false imprisonment and malicious
prosecution are also dismissed, for lack of evidence indicating
commission of the underlying violations.
Remaining State Law Claim
Plaintiff's papers may be read liberally to assert a state
law claim for intentional infliction of emotional distress.
As the Court is granting summary judgment dismissing all
of Plaintiff's federal causes of action, the Court declines to
exercise jurisdiction of any remaining state law claims. See
28 U.S.C. § 1367(c)(3); see also, Marcus v. AT & T Corp.,
138 F.3d 46, 57 (2d Cir.1998) (“where the federal claims are
dismissed before trial, the state claims should be dismissed as
well”).
CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is granted. Plaintiff's federal and state law claims for
false arrest, false imprisonment, and malicious prosecution,
and any federal claim for illegal search, are dismissed. The
Court declines to exercise supplemental jurisdiction of any
remaining state law claims, which are dismissed without
prejudice to litigation in state court.
This Memorandum Order resolves docket entry number 30.
The Clerk of Court is hereby requested to enter judgment in
Defendants' favor and close this case.
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
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purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
*10 SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 5089748
Footnotes
1 Plaintiff refers to Defendant Janec as “Janee” in his papers.
2 In his Complaint and his opposition to Defendants' Motion for Summary Judgment, Plaintiff also appears to
allege that he was subject to an unlawful search, although he does not assert this as a separate claim.
3 Facts recited as undisputed are identified as such in the parties' statements pursuant to S.D.N.Y. Local Civil
Rule 56.1 or drawn from evidence as to which there is no non-conclusory contrary factual proffer. Citations
to the parties' respective Local Civil Rule 56.1 Statements (“Def. 56.1 St.” or “Pl. 56.1 St.”) incorporate by
reference the parties' citations to underlying evidentiary submissions.
4 Plaintiff argues that there was no 911 call made to the police officers. (Pl 56.1 St. ¶ 6; see also Pl. Mem.
In Opp. (ECF docket entry no. 43) at ECF pp. 40, 55.) Although Plaintiff cites to a New York City Police
Department “Stop, Question & Frisk Report,” which indicates that the police officers were not on a radio run
on the afternoon of Plaintiff's arrest (see id., Ex. F); the New York City Police Complaint Report from the
same incident indicates that the victims' complaint was received by the police over the radio (see Declaration
of Aimee K. Lulich (“Lulich Decl.”), Ex. E). For the purposes of the instant motion, it does not matter how
the police officers first heard about the complaint, as the victims identified the Plaintiff once the officers had
arrived on the scene.
5 The claims relating to the handcuffs are mentioned for the first time in his opposition and Plaintiff has not
pleaded claims for excessive force in this case.
6 In 2007, Plaintiff had been convicted of unauthorized use of a motor vehicle in the second degree, and
sentenced to two to four years in prison. Plaintiff was incarcerated from October 20, 2007, to August 31,
2010, when he was released subject to the conditions of parole. (Def. 56.1 St. ¶ 3.) As part of his parole
conditions, plaintiff was required to report any arrest to his parole officer and to check-in with his parole officer
once a week. (Id.)
7 In his opposition submission, Plaintiff contends that he did report the November 3, 2010, arrest to his parole
officer (Pl. 56.1 St. ¶ 5), and denies that his parole was revoked, but his deposition testimony was to the
contrary. See Lulich Decl., Ex. B., Tr. 78:121–22.
8 Plaintiff disputes that the bail was set at $1.00 because there was a parole hold on Plaintiff, but admits that
it was set at $1.00. (Pl. 56.1 St. ¶ 13.)
9 Although the Certificate of Disposition proffered by Defendants refers to a conviction upon a plea, in the
sentencing transcript proffered by Plaintiff in his opposition papers, the sentencing judge discusses a bench
trial and the evidence presented therein. (See Pl. Mem. in Opp., Ex. A, at ECF pp. 90–97; ECF docket entry
no. 43–1, at ECF pp. 1–3.)
10 Plaintiff disputes that the charges were dismissed as being “covered by his felony conviction and sentence”
and proffers his own assertion that there was a final determination in his favor. (Pl. 56.1 St. ¶ 18.) Defendants'
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version is, however, corroborated by the disposition documentation proffered by Plaintiff in his opposition
and by Defendants in support of this motion—the Certificate of Disposition of the charges arising from the
December 13, 2010, arrest notes “DISM–CONVICTION UNRELATED DKT 5448–2010” and a “Record of
Court Action” reads in relevant part “Dismissed as covered by Ind. 5448/2010.” (See Pl. Opp. Mem., Ex. R.,
ECF docket entry no. 44–10, at ECF pp. 14–15; Lulich Decl., Ex. J.)
11 Defendants argue that neither of the named Defendant officers conducted the search, but this is a disputed
issue of fact, as Plaintiff claims that the Defendants were personally involved or, at the very least, failed to
intervene.
12 Furthermore, aside from naked boilerplate allegations against the City of New York in his opposition, the
Plaintiff has also not sufficiently demonstrated that the City of New York had a custom, policy, or practice
of conducting unlawful arrests, searches, or engaging in malicious prosecution so as to sustain a section
1983 claim.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Brown v. Peters, Not Reported in F.Supp. (1997)
© 2025 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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Brown v. Peters, Not Reported in F.Supp. (1997)
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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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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.
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 607341
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Paul CIPRIANI, Plaintiff,
v.
Harry C. BUFFARDI, Sheriff; Schenectady County Jail;
Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants.
No. 9:06-CV-0889(LEK/DRH).
|
Feb. 20, 2007.
Attorneys and Law Firms
Paul Cipriani, Plaintiff, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Presently before the Court is an amended complaint
filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl.
(Dkt. No. 10). This amended complaint was submitted
in compliance with the Memorandum-Decision and Order
issued by this Court on November 27, 2006 (“November
Order”). Mem.-Decision and Order (Dkt. No. 7).
In its November Order, the Court advised plaintiff that he
must set forth facts demonstrating that Defendants were
personally involved in a violation of Plaintiff's rights. Id. at 4.
Plaintiff was also advised that in order to establish the liability
of a municipality, he must allege a custom or policy which is
the moving force behind the violation. Id.
In his amended complaint, Plaintiff names thirteen defendants
and asserts numerous claims against them arising from his
confinement at Schenectady County Jail. Amended Compl.
(Dkt. No. 10).
The Court notes that plaintiff has not named “Schenectady
County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in
his amended Complaint. Therefore, “Schenectady County
Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby
dismissed as defendants in this action.
The Court also notes that Plaintiff's amended Complaint
mentions “Mr. Booth” and “Mr. Purdy” only in the caption,
and fails to allege any act or omission by these individuals.
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. Gonzalez v. City of New
York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2
(S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96
CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16,
1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement) and Taylor v. City
of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because
plaintiff has failed to allege any personal involvement on the
part of defendants “Mr. Booth” and “Mr. Purdy”, they are
hereby dismissed as defendants in this action.
In his amended Complaint, Plaintiff alleges that the remaining
Defendants committed various violations of his constitutional
rights, including inadequate medical care, breach of doctor-
patient confidentiality, excessive force, denial of due process
in a disciplinary proceeding, and interference with the
grievance process. Amended Compl. (Dkt. No. 10).
Based on the foregoing, Plaintiff's amended complaint as
against the remaining Defendants is accepted for filing.
Plaintiff is advised, however, that the U.S. Marshals cannot
effect service on a “John Doe” defendant. In the event
that plaintiff wishes to pursue this claim against the “John
Doe” defendants named in the amended Complaint, he must
take reasonable steps to ascertain their identities. Plaintiff
may then file a Motion to amend his complaint and seek
leave of the Court to add such individuals, by name, as
defendants to this lawsuit. Plaintiff is further advised that if
these individuals are not timely served, the action will be
against them will be dismissed.
*2 WHEREFORE, it is hereby
ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady
County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are
DISMISSED as defendants in this action, and it is further
ORDERED, that the Clerk revise the docket to add
“Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr.
Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe
# 7,” “John Doe # 10,” and “Loraine Walker” as defendants
in this action, and it is further
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© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
ORDERED, that the Clerk issue summonses naming the
remaining defendants and forward them, along with copies of
the amended Complaint (Dkt. No. 10), to the United States
Marshal for service upon the defendants, together with a copy
of this Order. 1 The Clerk shall also forward a copy of the
summons and amended Complaint by mail to the County
Attorney for Schenectady County, together with a copy of this
Order, and it is further
ORDERED, that a formal response to Plaintiff's amended
Complaint be filed by Defendants or their counsel as provided
for in Rule 12 of the Federal Rules of Civil Procedure
subsequent to service of process on Defendants, and it is
further
ORDERED, that Plaintiff take reasonable steps to ascertain
the identities of any other individual(s) that purportedly
violated Plaintiff's civil and/or constitutional rights and, if
appropriate, file a Motion to amend his complaint and add
such individuals, by name, as defendants to this lawsuit, and
it is further
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or the
Clerk must be accompanied by a certificate showing that
a true and correct copy of it was mailed to all opposing
parties or their counsel. Any document received by the Clerk
or the Court which does not include a proper certificate of
service will be returned, without processing. Plaintiff must
comply with requests by the Clerk's Office for any documents
that are necessary to maintain this action. All parties must
comply with Local Rule 7.1 of the Northern District of New
York in filing motions, which must be returnable before the
assigned Magistrate Judge with proper allowance for notice as
required by the Rules. Plaintiff is also required to promptly
notify the Clerk's Office and all parties or their counsel of
any change in his address; his failure to do so will result
in the dismissal of this action. All motions will be decided
on submitted papers without oral argument unless otherwise
ordered by the Court; and it is further
ORDERED, that the Clerk serve a copy of this Order on
plaintiff by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 607341
Footnotes
1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt.
No. 7).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Clervrain v. Robbins, Not Reported in Fed. Supp. (2022)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 17517312
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Manetirony CLERVRAIN, Plaintiff,
v.
Jonathan ROBBINS, et al., Defendants.
1:22-CV-1248 (MAD/DJS)
|
Signed December 8, 2022
Attorneys and Law Firms
MANETIRONY CLERVRAIN, Plaintiff, Pro Se, Anderson,
IN 46013.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has forwarded for review what has been
docketed as a civil complaint filed by Plaintiff. Dkt. No. 1,
Compl. Plaintiff has not paid the filing fee but has submitted
an application to proceed in forma pauperis (“IFP”), Dkt. No.
2, which the Court has granted. 1
I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to
proceed in forma pauperis, “(2) ... the court shall dismiss
the case at any time if the court determines that – ... (B)
the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). 2 Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it
is the court's responsibility to determine whether the plaintiff
may properly maintain the complaint that he filed in this
District before the court may permit the plaintiff to proceed
with this action in forma pauperis. See id.
Likewise, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of
a governmental 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; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A
are available to evaluate pro se prisoner complaints).
In reviewing a pro se complaint, the court has a duty to show
liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted). Therefore, a
court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
*2 Although a court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is entitled
to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).
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Clervrain v. Robbins, Not Reported in Fed. Supp. (2022)
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B. Analysis of the Complaint
A court's initial review of a complaint under § 1915(e) must
encompass the applicable standards of the Federal Rules
of Civil Procedure. Rule 8 of the Federal Rules of Civil
Procedure provides that a pleading must contain:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
FED. R. CIV. P. 8(a). 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 answer [and]
prepare an adequate defense.” Hudson v. Artuz, 1998 WL
832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v.
Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
Moreover, Rule 10 of the Federal Rules of Civil Procedure
provides, in part:
(b) Paragraphs; Separate
Statements. A party must state its
claims or defenses in numbered
paragraphs, each limited as far
as practicable to a single set of
circumstances. A later pleading may
refer by number to a paragraph in an
earlier pleading. If doing so would
promote clarity, each claim founded on
a separate transaction or occurrence –
and each defense other than a denial –
must be stated in a separate count or
defense.
FED. R. CIV. P. 10(b). The purpose of Rule 10 is to “provide
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Sandler v. Capanna, 1992
WL 392597, at *3 (E.D. Pa. Dec. 17, 1992).
A complaint that fails to comply with basic pleading
requirements presents too heavy a burden for defendants to
craft a defense “and provides no meaningful basis for the
Court to assess the sufficiency of [the plaintiff's] claims,” and
may properly be dismissed. Gonzales v. Wing, 167 F.R.D. 352,
355 (N.D.N.Y. 1996).
Plaintiff's Complaint clearly does not satisfy these
requirements. The nature of the Complaint is unclear. The
Complaint recites a wide variety of federal statutes and
case law, but a thorough review of the main Complaint and
the numerous attachments does not provide clarity as to
what federal claim Plaintiff seeks to pursue in this Court.
It is unclear what relationship the individuals identified by
Plaintiff as Defendants have to Plaintiff and how he alleges
they violated his rights.
Given its lack of clarity, the Complaint is clearly subject to
dismissal. “[A] court should not dismiss a complaint filed
by a pro se litigant without granting leave to amend at least
once ‘when a liberal reading of the complaint gives any
indication that a valid claim might be stated.’ ” Bruce v.
Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart, 2015 WL
151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v.
Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Accordingly, the
Court recommends that the Complaint be dismissed, but that
Plaintiff be afforded an opportunity to amend.
*3 The Court advises Plaintiff that should he be permitted
to amend his Complaint, any amended pleading she
submits must comply with Rules 8 and 10 of the Federal
Rules of Civil Procedure. Any such amended complaint,
which shall supersede and replace in its entirety the
previous Complaint filed by Plaintiff, must contain
sequentially numbered paragraphs containing only one
act of misconduct per paragraph. Thus, if Plaintiff claims
that his civil and/or constitutional rights were violated by
more than one defendant, or on more than one occasion,
he should include a corresponding number of paragraphs
in his amended complaint for each such allegation, with
each paragraph specifying (i) the alleged act of misconduct;
(ii) the date, including the year, on which such misconduct
occurred; (iii) the names of each and every individual who
participated in such misconduct; (iv) where appropriate, the
location where the alleged misconduct occurred; and, (v) the
nexus between such misconduct and Plaintiff's civil and/or
constitutional rights.
Plaintiff is further cautioned that no portion of his prior
Complaint shall be incorporated into his amended complaint
by reference. Any amended complaint submitted by Plaintiff
must set forth all of the claims he intends to assert against the
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Clervrain v. Robbins, Not Reported in Fed. Supp. (2022)
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defendants and must demonstrate that a case or controversy
exists between the Plaintiff and the defendants which Plaintiff
has a legal right to pursue and over which this Court has
jurisdiction. If Plaintiff is alleging that the named defendant
violated a law, he should specifically refer to such law.
II. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be
DISMISSED with leave to amend; and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 3 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).
All Citations
Not Reported in Fed. Supp., 2022 WL 17517312
Footnotes
1 Plaintiff has also moved for leave to file electronically. Dkt. No. 3. Given the recommended disposition of
this case, that Motion is denied with leave to renew if Plaintiff files a complaint that survives review under
section 1915.
2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
3 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to
the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you
to serve and file objections. 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 © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 223 of 520

Clervrain v. Robbins, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 3170384
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Manetirony CLERVRAIN, Plaintiff,
v.
Jonathan ROBBINS, Jean-Max Bellerive,
Josue Pierre-Louis, Garry Conille, Jean-Claude
Theogene, Barthelemy Anteno, Kwasi Amoako-
Attah, and Victor (Ito) Bisono Haza, Defendants.
1:22-CV-1248 (MAD/DJS)
|
Signed May 1, 2023
Attorneys and Law Firms
MANETIRONY CLERVRAIN, 4326 South Scatterfield
Road, Suite 153, Anderson, Indiana 46013, Plaintiff, Pro Se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 On November 22, 2022, pro se Plaintiff Manetirony
Clervrain (“Plaintiff”) filed a complaint against Defendants
consisting of 70 pages of forms and documents, see Dkt. No.
1, “recit[ing] a wide variety of federal statutes and case law,”
Dkt. No. 7 at 5, and around two hundred pages of attachments.
See Dkt. Nos. 1-1, 1-5, 1-6. On the same day, Plaintiff moved
for leave to proceed in forma pauperis (“IFP”), see Dkt. No.
2, and to obtain an ECF login and password. See Dkt. No. 3.
On December 8, 2022, Magistrate Judge Daniel J. Stewart
granted Plaintiff's motion to proceed IFP. See Dkt.
No. 6. Additionally, Magistrate Judge Stewart issued a
Report-Recommendation and Order recommending that the
complaint be dismissed with leave to amend. See Dkt.
No. 7. Plaintiff has not filed an objection to the Report-
Recommendation and Order.
When a party declines to file objections to a magistrate judge's
report-recommendation or files “[g]eneral or conclusory
objections or objections which merely recite the same
arguments [presented] to the magistrate judge,” the district
court reviews those recommendations for clear error. O'Diah
v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y.
Mar. 16, 2011) (citations and footnote omitted); see also
McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y.
2007). After the appropriate review, “the court 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)(1).
“[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. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has held that the court is obligated to
“ ‘make reasonable allowances to protect pro se litigants’ ”
from inadvertently forfeiting legal rights merely because they
lack a legal education. Govan, 289 F. Supp. 2d at 295 (quoting
Taguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Having reviewed the December 8, 2022 Report-
Recommendation and Order, Plaintiff's complaint and the
applicable law, the Court finds that Magistrate Judge Stewart
correctly determined that the complaint should be dismissed.
The complaint is largely incomprehensible and suffers from
several deficiencies. Rule 8(a) of the Federal Rules of Civil
Procedure provides that a pleading must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff's complaint
is neither short nor plain. See Dkt. No. 1. As currently
drafted, and even with the leniency given to a pro se litigant's
pleadings, Plaintiff failed to meet pleading standards such
that the Court is unable to meaningfully analyze whether
Plaintiff can allege any colorable claim against Defendants.
See Canning v. Hofmann, No. 1:15-CV-0493, 2015 WL
6690170, *5 (N.D.N.Y. Nov. 2, 2015) (“[H]aving found
that none of the allegations in Plaintiff's meandering and
indecipherable Complaint raise a cognizable cause of action,
the Court concludes that the Complaint fails to state a claim
upon which relief may be granted and is subject to dismissal”)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
*2 Finally, the Court agrees with Magistrate Judge Stewart
that Plaintiff should be granted an opportunity to amend
out of deference to Plaintiff's pro se status. See Nielsen
v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“ ‘Generally,
leave to amend should be freely given, and a pro se
litigant in particular should be afforded every reasonable
opportunity to demonstrate that he has a valid claim’ ”)
(quotation omitted). Should Plaintiff choose to amend the
complaint, the Court urges Plaintiff to review Magistrate
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Clervrain v. Robbins, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
Judge Stewart's suggestions in the Report-Recommendation
and Order thoroughly. See Dkt. No. 7 at 4-6.
Accordingly, the Court hereby
ORDERS that the Report-Recommendation and Order (Dkt.
No. 7) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is
DISMISSED with leave to amend; and the Court further
ORDERS that Plaintiff shall file his amended complaint
within thirty (30) days of the date of this Order; and the Court
further
ORDERS that, if Plaintiff fails to file an amended complaint
within thirty (30) days of the date of this Order, the Clerk of
the Court shall enter judgment in Defendants’ favor and close
this case without further order from this Court; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 3170384
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 225 of 520

Dan v. New York, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1448314
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Chong Lee DAN, Plaintiff,
v.
State of NEW YORK, et al., Defendants.
1:24-CV-01233 (MAD/PJE)
|
Signed May 20, 2025
Attorneys and Law Firms
Chong Lee Dan, c/o Jan Levine, 688 Rte. 20, Cairo, New York
12413, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
PAUL J. EVANGELISTA, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Chong Lee Dan commenced this action
on October 8, 2024, with the filing of a complaint, and,
in lieu of paying this Court's filing fee, an application for
leave to proceed in forma pauperis (“IFP”). See Dkt. Nos.
1, 2. Plaintiff provides that his income is $2000.00 per
month, he has $3000.00 in savings, and his monthly expenses
total $145.00. See Dkt. No. 2. However, plaintiff states
that his income has “decreased to zero, except for work
within walking distance.” 1 Id. On balance, 2 the undersigned
concludes that plaintiff financially qualifies to proceed IFP. 3
Next, plaintiff's complaint must be assessed pursuant to 28
U.S.C. §§ 1915, 1915A. 4
II. Standard of Review
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face,” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), to “allow[ ] 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). At the pleading stage, the Court must assume the
truth of “all well-pleaded, nonconclusory factual allegations”
in the complaint. Kiobel v. Royal Dutch Petroleum Co.,
621 F.3d 111, 123 (2d Cir. 2010) (citing Iqbal, 556 U.S.
at 678). However, the Court need not accept as true “legal
conclusions.” Iqbal, 556 U.S. at 678. A pro se complaint is
entitled to special solicitude and must be liberally construed,
meaning that “a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.” Ceara v. Deacon, 916 F.3d 208, 213
(2d Cir. 2019) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)).
Nevertheless, even where a plaintiff has paid the filing
fee, a district court may dismiss the complaint sua sponte
if it determines that it lacks subject matter jurisdiction or
that the complaint is frivolous. See FED. R. CIV. P. 12(h)
(3); Fitzgerald v. First E. Seventh Street Tenants Corp.,
221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam); see
Tyler v. Carter, 151 F.R.D. 537 (S.D.N.Y. 1993), aff'd, 41
F.3d 1500 (2d Cir. 1994) (“The question is whether such
claims asserted by a fee-paying plaintiff are subject to
sua sponte dismissal by a district court under Rule 12(b)
(6). I hold that they are. A plaintiff asserting fantastic or
delusional claims should not, by payment of a filing fee,
obtain a license to consume limited judicial resources and
put defendants to effort and expense. The policies arguing
against sua sponte Rule 12(b)(6) dismissals do not apply
in these circumstances.”). “An action 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. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998) (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)) (additional internal quotation marks and
citations omitted). Further, a complaint that is “so confused,
ambiguous, vague[,] or otherwise unintelligible that its true
substance, if any, is well disguised,” “fails to comply with
Rule 8 [of the Federal Rules of Civil Procedure].” Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see Simmons v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
*2 The Court is required to construe pro se pleadings
liberally and interpret them to raise the “strongest [claims]
that they suggest.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (internal quotation marks and citations
omitted). At the same time, our cases have also indicated
that we cannot read into pro se submissions claims that
are not “consistent” with the pro se litigant's allegations, or
arguments that the submissions themselves do not “suggest,”
that we should not “excuse frivolous or vexatious filings by
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Dan v. New York, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
pro se litigants,” and that pro se status “does not exempt
a party from compliance with relevant rules of procedural
and substantive law[.]” Triestman, 470 F.3d at 477 (internal
citations, quotation marks, and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008). “The [Second Circuit]’s ‘special solicitude’ for
pro se pleadings has its limits, because pro se pleadings still
must comply with ... the Federal Rules of Civil Procedure.”
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL
6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v.
IRS, 28 F.3d 6, 8 (2d Cir. 1994)). 5
III. Discussion
A. Complaint 6
In his thirty-two-page, type-written complaint, plaintiff seeks
to sue the State of New York; County of Greene; Town
of Cairo; Ryan Schrader, Deputy Sheriff, Green County
Sheriff's Office, in his official and individual capacities;
Kaitlyn Raynor, Deputy Sheriff, Greene County Sheriff's
Office, in her official and individual capacities; Shawn
Marriott, Sergeant, Greene County Sheriff's Office, in his
official and individual capacities; Scott Christman, Sergeant,
Greene County Sheriff's Office, in his official and individual
capacities; Peter Kusminsky, Sheriff, Greene County Sheriff's
Office, in his official and individual capacities; John
Vandenburgh, owner of JR's Transmission; Mark J.F.
Schroeder, New York State Department of Motor Vehicles
employee, in his official and individual capacities; Shawn S.
Groden, County Administrator, Greene County, in his official
and individual capacities; John Watts, Town Supervisor,
Town of Cairo, in his official and individual capacities;
Edward I. Kaplan, County Attorney, Greene County, in his
official and individual capacities; Joseph Stanzione, District
Attorney, Greene County, in his official and individual
capacities; Jennifer Sandleitner, Assistant District Attorney,
Greene County, in her official and individual capacities; and
Angelo F. Scaturro, Public Defender, Greene County, in his
official and individual capacities. See Compl. at 3-6.
Plaintiff's complaint arises out of an August 19, 2023,
incident. See generally Compl. Plaintiff was parked at a gas
station in Cairo, New York. See id. at 6. He contends that,
as he was “preparing to enter” the gas station's convenience
store, defendant Ryan Schrader, of the Greene County
Sheriff's Office, “initiated an encounter concerning an expired
temporary Maryland tag on Plaintiff's private property, the
subject of this civil rights complaint.” Id. Plaintiff states
that his vehicle, a 2005 Chevrolet Astro, “was purchased by
Plaintiff as private property for persona, family, or household
goods or consumer goods, not for commercial use, profit, or
gain.” Id. Plaintiff expressed his belief to defendant Schrader
that he had “no need” for a “valid tag” and gave Schrader
fair notice by public record as filed at the Caldwell
County, NC Register of Deeds, BK 2095, PG 420-421.
That document's text presented here as being material
to this encounter ab initio of the legal requirement
to operate the term “motor vehicle” to a definition
pursuant to the US Constitutional and federal laws
as follows. Federal regulations recognize traveling and
driving are different activities at 40 CFR 395.1(j)(1) with
the phraseology of “traveling but not driving.” The term
“drive” is ranching parlance to drive cattle to market, a
commercial activity. The United States Supreme Court
case, Interstate Commerce Commission vs. Brimson 154
US 447 recognized the state's authority to regulate the
privilege of using public roads for commercial activity,
as in “driving.” It recognized the state's authority did
not extend to the right of “traveling” the public roads
when tending to the ordinary activities of daily living.
“Power given to Congress to regulate interstate commerce
does not carry with it authority to destroy or impair
those fundamental guarantees of personal rights that are
recognized by the Constitution as inheriting the freedom
of the citizen.” The United States Supreme Court case
recognizes travel as a Constitutionally protected right while
driving is a privilege.
*3 Id. at 7.
Plaintiff contends that “[t]he United States Code reflects this
protected right by requiring commercial activity as an element
in defining the term ‘motor vehicle’ 18 USC31 a (6).” Compl.
at 7. He further provides, “[t]he United States Code elaborates
on ‘commercial activity’ 18 USC31 a (10).” Id. Plaintiff
contends that “a ‘motor vehicle’ is defined to the activity of
moving passengers or property for a fare, fee, rate or other
compensation” which “must be in evidence for something to
be deemed a motor vehicle and subject to the motor vehicle
code.” Id. at 8. Plaintiff states that he “believe[s] that anyone
with an oath to support the Federal Constitution that fails to
operate the term ‘motor vehicle’ as Constitutionally defined
commits perjury of that oath and acts against Me without
authority.” Id.
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Plaintiff expressed his viewpoint to defendant Schrader who
had also asked plaintiff to show his driver's license, and
plaintiff told Schrader that he did not have one as he was
not required to have one. See Compl. at 8-9. At some point
in the interaction between plaintiff and defendant Schrader,
defendant Raynor arrived. See id. at 10. Plaintiff contends that
Schrader told him that to drive in New York State, he needs a
valid driver's license and vehicle registration, which he does
not have. See id. at 10. Defendant Schrader issued plaintiff
“two citations, one for unlicensed op and one for unregistered
vehicle, all right?” Id. at 11. Defendant Schrader stated that
because of a lack of a valid license or registration, is vehicle
would be towed. See id. Plaintiff contends that Schrader
confirmed that he informed his supervisor, defendant Shawn
Marriott, “of the public record, the issue of New York
State Uniform Traffic Tickets and the impoundment of the
Plaintiff's private property.” Id.
Plaintiff states that the impoundment of his “private property
left him without a safe place to lay his head at night and
without a means to travel, stranding him in Cairo, NY.”
Compl. at 12. Plaintiff states that he is being forced to stay at
a tent on a friend's property which is an “emotionally stressful
living situation” which is “compromising the privacy of these
friends.” Id. Plaintiff further provides that the impoundment
of his vehicle “interfered with the Plaintiff's ability to support
himself in maintaining his chosen lifestyle, compromising his
mental, spiritual, and physical well-being.” Id. His “economic
situation and lifestyle before the encounter were marginal but
sustainable; the Defendants’ seizure of his private property
exacerbated this situation.” Id.
Plaintiff's vehicle was towed to JR's Transmission, which
plaintiff claims is operated by John VanDenburgh. See Compl.
at 13. Plaintiff pleaded not guilty to the traffic tickets at
the Town of Cairo Municipal Court, “requested a supporting
deposition,” “filed a motion for dismissal, a copy of the public
record that Deputy Schrader received, see Line 34., a notice
on US attorney and an affidavit of sovereign status with the
Cairo Municipal Court clerk.” Id. Plaintiff provides that his
case from the Cairo Municipal Court was dismissed in its
entirety “for lack of a supporting deposition,” which plaintiff
believes did not give him
*4 a fair opportunity to present
the facts of the case with
the continued application of the
transportation code to Plaintiff's
private property, insistence on
payment of impoundment fees, and
forced contracts with the New York
State Department of Motor Vehicles to
operate commercially as a condition
for the return of the private property.
Id. at 14.
Plaintiff provides that JR's Transmission would not release
his vehicle without payment of the tow and impound fees.
See Compl. at 14. Plaintiff sought “relief” from the Cairo
Municipal Court and “was told there was nothing they
could do to assist with gaining the release of the Plaintiff's
private property.” Id. Plaintiff sought similar “relief from
the public defender, district attorney, and county attorney”
in Greene County “without results.” Id. “Of all the County
of Greene officials and agents contacted, the Plaintiff was
informed of the requirement to pay the impound fees and
present a valid driver's license.” Id. Plaintiff called the
Greene County Sheriff's Office. Id. Christman “claimed he
did not understand why the charges had been dismissed,”
“insisted on applying a definition of the term ‘motor vehicle’
other than the United States Code defines it to the Plaintiff
and his private property,” and “declined to discuss the
definitions of driving and traveling as given in the Code
of Federal Regulations.” Id. Plaintiff “notified” the County
Administrator, Public Defender, District Attorney, County
Attorney, Sheriff's Office, “all officials of the County of
Greene,” and the Town of Cairo Supervisor by e-mail on May
11, 2024, but plaintiff did not receive any response. Id. at 15.
Plaintiff states “Defendants’ failure to provide a supporting
deposition created a legal problem, as in giving Plaintiff
a dismissal of all charges while the Defendants continued
the deprivation of Plaintiff's rights to private property and
substantive and procedural due process.” Compl. at 15.
Plaintiff attended “a 50-H hearing at the Greene County
Office Building with Defendant Edward I. Kaplan and
Attorney James j. Burns of Murphy Burns LLP.” Compl.
at 15. Plaintiff states that he “recognized that Mr. Burns
had in his possession a copy of the Notice of Claim
by Administrative Process mailed certified to ten of the
Defendants.” Id. Plaintiff states that on June 25, 2024, he
“filed an affidavit into the public record at the Greene County
Clerk's Office ... the Defendants being made aware of this
public record by a certified mailing alleging the Defendants
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are engaged in a seditious conspiracy to overthrow the
Constitution and violate his God-given rights.” Id. Plaintiff
did not receive a response to this notice. Id.
Plaintiff purports to bring this action pursuant to 42 U.S.C. §
1983, 42 U.S.C. § 1985, 42 U.S.C. § 1986, the Administrative
Procedure Act of 1946, New York State Penal Code, 7 and
New York State common 8 law. 9
*5 More specifically, plaintiff states that, pursuant to 42
U.S.C. § 1983, “defendants are jointly and severally liable
for damages caused by depriving Plaintiff of rights protected
by the United States Constitution's 4 th , 5 th , and 14 th
Amendments under color of the New York State Vehicle and
Traffic Law.” Compl. at 18. He also contends that defendants
engaged in malicious prosecution in violation of section
1983. See Compl. at 19-20. Plaintiff contends that defendants
violated these rights by using/applying a definition of the
term “motor vehicle” other than how he believes it is defined
and interpreted in the United States Code and Code of
Federal Regulations. Compl. at 17-18. Plaintiff contends that
defendant VanDenburgh “jointly engaged with State officials
in the action, was acting under the color of New York State
Vehicle and Traffic Law” and he is not “require[d] to be
an officer of the State, it is enough that he was a willing
participant.” Id. at 17.
Plaintiff contends that, pursuant to 42 U.S.C. § 1985,
defendants “conspired to deprive the Plaintiff of his private
property rights by operating the term ‘motor vehicle’ other
than as defined by the United States code.” Compl. at 18.
Plaintiff further contends that, in an effort to “conceal this
conspiracy, Defendant Ryan Schrader, a member of and
influenced by this conspiracy failed to provide a supporting
deposition” and “failed to keep his verbal contract to allow
Plaintiff to ‘explain all this to the judge and let the judge figure
it out.’ ” Id. Plaintiff states that defendants “conspired with
the objective of accomplishing the generation of additional
revenue for the State of New York, the County of Greene, the
Town of Cairo, and JR's Transmission depending on how the
revenue and fines are to be split.” Id. He contends defendants
all “agreed/conspired to subject noncommercial users of
New York Public roads, the Plaintiff, to the unauthorized
application of the United States Constitution's interstate
commerce clause. This operates as a constructive fraud and
an abuse of power by the Defendants.” Id. at 18.
Plaintiff seeks to sue all defendants pursuant to 42 U.S.C.
§ 1986 for “action for neglect to prevent” insofar as they
failed “to prevent operating the term ‘motor vehicle’ other
than as defined by the United States Code as the direct and
proximate cause for the callous disregard for the deprivation
of the Plaintiff's federally protected rights” and, thus, should
be held “liable for neglect to prevent the initial and continued
damages and deprivation of the Plaintiff's rights as protected
by the United States Constitution's 4th, 5th, and 14th
Amendments by operating the term ‘motor vehicle’ other
than as defined by the United States Code.” Compl. at
20-21. Plaintiff argues that all defendants “were notified of
the deprivation of the Plaintiff's rights initiated by and of
the continuance of their neglect in preventing the operation
of the term ‘motor vehicle’ other than as defined by the
United States code.” Id. “That Defendants, especially those in
positions of superiority and power, given notice of their illegal
conduct and a reasonable opportunity to correct it would
continue in this illegal conduct is egregious and outrageous
for public officials.” Id.
Plaintiff contends that defendants violated 18 U.S.C. §
1589 10 and the Thirteenth Amendment by requiring him to
participate in “forced labor.” Compl. at 21. He argues that
defendants’ “unauthorized application of the Constitution's
interstate commerce clause, are attempting to extract a use
tax from the Plaintiff in the form of a driver's license and
registration, when not legally required, operate as forced
labor/involuntary servitude” and plaintiff is “partially of
African descent and, because of the history of the enslavement
of black people in America takes extreme issue with the
subject of forced labor.” Id. Plaintiff contends that defendants,
“with deliberate indifference, have failed to observe the
United States Constitution's 13 th Amendment's prohibition
of slavery and involuntary servitude.” Id.
*6 Plaintiff seeks to sue State of New York, County of
Greene, and Town of Cairo for “deprivation of substantive
due process” pursuant to Monell. Compl. at 22-24. He
contends that “Defendants acted pursuant to one or more
interrelated de facto policies (even if not official written
edicts), practices, and customs of civil rights violations
and unconstitutional practices of the State of New York,
County of Greene, and Town of Cairo, see Line 122.” 11
Compl. at 22. Plaintiff alleges that “their policy, practice, and
custom” of “approv[ing], authoriz[ing], and acquiesce[ing]
in the unlawful and unconstitutional conduct of defining
the term ‘motor vehicle’ by a definition other than the
definition given by the United States Code by its respective
employees and agents” violates his constitutional rights under
the Fourth, Fifth, Thirteenth, and Fourteenth Amendments.
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Compl. at 22-24. Plaintiff further alleges that “the Corporate
Defendants” failed to train defendant Schrader in “the
authorized application of the United States Constitution's
interstate commerce clause.” Id. Plaintiff additionally argues
that defendant Shrader acted with deliberate indifference to
his constitutional rights by failing to enact on his “duty of
care to investigate Plaintiff's claim of ‘no requirement’ for a
valid registration as evidence of passengers or property being
moved for any fare, fee, rate charge, or other consideration as
the element that triggers that requirement.” Id. at 29.
Next, plaintiff contends that “[t]he Corporate Defendants”
violated the Administrative Procedure Act, which he cites as
5 U.S.C. § 551 et seq. (1946). Compl. at 16. Plaintiff provides
that he “is challenging the Corporate Defendants’ right to
enforce their policy or guidance rules on the Plaintiff without
substantive due process and an order from a Judicial Judge.”
Id. Plaintiff “demands a Judicial review of the Corporate
Defendants’ misconduct for abuse of discretion, as authorized
by the United States Administrative Procedure Act of 1946.”
Id.
Plaintiff further seeks to proceed under New York state law for
libel, slander, and intentional infliction of emotional distress.
See Compl. at 27-28. Plaintiff also seeks to proceed under
New York State common law for false imprisonment. See
Compl. at 25. Plaintiff states that defendant Schrader “without
authority, confined Plaintiff to the area behind Plaintiff's
private property against his will under the threat of assault
and battery.” Compl. at 25 (citing line 47, Compl. at 9)
(“Defendant Ryan Schrader walked back to the Sheriff's
cruiser, ordering the Plaintiff to confine himself to an area in
the rear of the private property. ‘Sit right there for a second.’
the Plaintiff complied for apprehension of being physically
assaulted for failure to do so.”). 12
Plaintiff also seeks to proceed pursuant to several state
criminal laws, Robbery in the Second Degree (New York
Penal Code § 160.10); Coercion in the third degree, New
York Penal Code § 136.60(2); Official Misconduct, New York
Penal Code 195.00; Assault, New York Penal Code § 120
(potential for assault). Compl. at 24-25, 28-29.
Plaintiff seeks compensatory damages, totaling $1,200,000
from the State of New York, $600,000 from Greene
County, $300,000 from Town of Cairo, $200,000 from
Ryan Schrader, $200,000 From Kaitlyn Raynor, $200,000
from Shawn Marriott, $200,000 from Scott Christman,
$200,000 from Peter J. Kusminsky, $200,000 from Mark J.F.
Schroeder, $300,000 From Shaun S. Groden, $300,000 from
Jason Watts, $300,000 from Edward I. Kaplan, $300,000
from Joseph Stanzione, $300,000 from Jennifer Sandleitner,
$300,000 from Angelo F. Scaturro, and $100,000 from John
Vandenburgh. Id. at 31-32. Plaintiff also seeks “[d]eclaratory
and injunctive relief against the State of New York, County
of Greene, And Town of Cairo's enjoining policies, practices,
and customs to encourage the operating of the term ‘motor
vehicle’ by no other definition than the definition given by
the United States Code” and “ordering the State of New
York, County of Greene, and Town of Cairo “to institute
policies, procedures, and training for law enforcement
agencies of these entities to bring them into compliance with
constitutional standards.” Id. at 32. Plaintiff further requests
“attorney's fees and the cost of this action pursuant to 42 USC
1988.” Id.
B. Analysis
*7 First, plaintiff's claims against the State of New York are
barred by sovereign immunity. The law is well established
that under the Eleventh Amendment to the United States
Constitution, the State of New York and its subdivisions
are immune from suits brought under Section 1983. See
Pennhurst State Sch. & Hosp. v. Haldeman, 465 U.S. 89, 98
(1984) (citing Hans v. Louisiana, 134 U.S. 1, 11 (1890));
see also Quern v. Jordan, 440 U.S. 332, 340-41 (1979)
(applying Eleventh Amendment immunity to claims under §
1983). “New York has not waived its Eleventh Amendment
immunity to suit in federal court, and Congress did not
abrogate the states’ immunity in enacting Section 1983.”
Id. “Sovereign immunity bars not only suits against states
themselves, but also suits for damages against state officials
acting in their official capacities.” Chapman v. City of
Albany, No. 1:23-CV-686 (LEK/PJE), 2025 WL 295011,
at *5 (N.D.N.Y. Jan. 24, 2025). Thus, plaintiff's claims for
monetary damages against the following state officials in
their official capacities also must be dismissed for sovereign
immunity, Ryan Schrader, Kaitlyn Raynor, Shawn Marriott,
Peter J. Kusminsky, Mark J.F. Schroeder, Shawn S. Groden,
Jason Watts, Edward Kaplan, Joseph Stanzione, Jennifer
Sandleitner, Angelo Scaturro, and Scott Christman. See id.;
see also Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116
(2d Cir. 2017) (“[A] complaint must be dismissed without
prejudice where the dismissal is due to the court's lack of
subject matter jurisdiction[.]”); 18 U.S.C. § 1915A(b)(1)
(“On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
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complaint – (2) seeks monetary relief from a defendant who
is immune from such relief.”).
Second, plaintiff's complaint must otherwise be dismissed
for failure to state a claim upon which relief can be
granted and frivolity. See 28 U.S.C. § 1915A(b)(1). Plaintiff's
complaint fails to set forth any cognizable constitutional
claim. Plaintiff is far from the first person to attempt to get
out of the requirements to have a valid driver's license or
vehicle registration by arguing that state vehicle and traffic
laws violate his constitutional rights nor is he the first to
specifically contend that the definition of motor vehicle in 18
U.S.C. § 31 applies only to commercial use of motor vehicles
or that 49 C.F.R. § 395 recognizes a difference between
traveling or driving and that such statute and regulation
mean that their particular use of their vehicle is exempt from
the license and/or registration requirements. See generally
Compl. However, as will be explained below, plaintiff's
arguments based on this faulty premise, like for those who
came before him, are without merit and must be dismissed.
The Supreme Court of the United States has made clear,
In the absence of national legislation
covering the subject, a state
may rightfully prescribe uniform
regulations necessary for public safety
and order in respect to the operation
upon its highways of all motor
vehicles, [ ]those moving in interstate
commerce as well as others. And to
this end it may require the registration
of such vehicles and the licensing
of their drivers, charging therefor
reasonable fees graduated according
to the horse-power of the engines,[ ]a
practical measure of size, speed, and
difficulty of control. This is but an
exercise of the police power uniformly
recognized as belonging to the states
and essential to the preservation of
the health, safety, and comfort of their
citizens; and it does not constitute a
direct and material burden on interstate
commerce.
Ali v. Siwek, No. 23-CV-354-LJV, 2023 WL 9184481, at *3
(W.D.N. Y Dec. 18, 2023), appeal dismissed sub nom. Ali
v. Mathewson, No. 24-52, 2024 WL 5295532 (2d Cir. July
26, 2024) (quoting Hendrick v. Maryland, 235 U.S. 610,
622 (1915) (alterations omitted)). It is well-settled that “the
states may enact laws requiring owners of motor vehicles
to register those vehicles.” Ali, 2023 WL 9184481, at *3;
see also Ali, 2023 WL 9184481, at *3 n.4 (citing Munz v.
Harnett, 6 F. Supp. 158, 159-60 (S.D.N.Y. 1933)) (“[A] state
as an exercise of the police power may prescribe uniform
regulations covering the ownership and operation” of motor
vehicles and observing that “there cannot be the slightest
doubt of the validity of [the] requirement” that motor vehicles
be registered) (citing, inter alia, Hendrick, 235 U.S. at 622).
*8 In Ali, the plaintiff contended, as relevant here, that the
defendants were attempting to “force him into a contract”
and violating his rights by requiring him to pay a fee before
returning his impounded vehicle. 2023 WL 9184481, at *2-3.
Like plaintiff here, the plaintiff in Ali believed that the vehicle
and traffic laws did not apply to him or his situation. Although
plaintiff here attempts to ground his belief in constitutional
and statutory interpretation, rather than contractual terms
as in Ali, the necessary outcome does not differ. See id.
at *3 n.4 (citing Munz v. Harnett, 6 F. Supp. 158, 159-60
(S.D.N. Y 1933); see also Spector Motor Serv. v. Walsh, 139
F.2d 809, 814-15 (2d Cir. 1943) (“First, we should note the
now established and undenied power of a state to impose
a registration or license fee on those using motor vehicles
in the state ....”) (collecting cases)); Scalpi v. Town of East
Fishkill, No. 14-CV-2126 (KMK), 2016 WL 831956, at *5
(S.D.N.Y. Feb. 29, 2016) appeal dismissed 16-1299 (2d Cir.
June 3, 2016) (“[T]he State's authority to regulate the use
of its roads is well established.”) (collecting cases); Laine
v. City of Livermore, 695 F. App'x 260, 261 (9th Cir. 2017)
(“Contrary to [the plaintiff's] contentions, vehicle registration
requirements are not unconstitutional.” (citing Hendrick));
Perkins v. Ivey, 772 F. App'x 245, 246 (5th Cir. 2019) (quoting
Hendrick, 235 U.S. at 622) (“The Supreme Court ruled long
ago that states may regulate the operation ‘of all motor
vehicles’ that drive within their borders, and ‘may require
the registration of such vehicles and the licensing of their
drivers’ pursuant to their constitutionally protected police
power.”); Earl v. Harris, No. 23-1063, 2023 WL 3580700, at
*1 (3d Cir. May 22, 2023) (noting that “the Supreme Court
has long recognized a state's right to use its police powers to
‘require the registration of [motor] vehicles and the licensing
of their drivers’ ” and finding the plaintiffs’ challenge to that
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proposition to be “baseless”) (quoting Hendrick, 235 U.S. at
622).
Plaintiff attempts to argue that there is a difference, grounded
in statute and federal regulations, between driving and
traveling, designating the former a privilege and the latter
a Constitutionally-protected right. See generally Compl.
However, plaintiff arguments are frivolous. See Allen v. N.Y.
State Dep't of Motor Vehicles, 991 N.Y.S. 2d 701, 723
(N.Y. App. Div. 2014) (noting that “[the Constitution] does
not recognize a fundamental ‘right to drive’ ”); see also
Crandall v. New York State Dep't of Motor Vehicles, No. 1:10-
CV-918 (GLS/RFT), 2011 WL 2295742, at *2 (N.D.N.Y.
June 8, 2011) (holding that there is no fundamental right to
operate a motor vehicle; rather, it “is a revocable privilege
that is granted upon compliance with statutory licensing
provisions.”).
Plaintiff takes issue with the fact that 18 U.S.C. § 31’s
definition of “motor vehicle” is specific to uses where the
operator is engaging in a commercial activity. He asserts that,
because he was not engaging in a commercial activity while
operating his motor vehicle, he is exempt from any licensing
or registration requirements. However, 18 USC § 31 is “a
criminal statute” which explicitly states, “In this chapter, the
following definitions apply .... There is no indication that
such definitions, which are presented in a criminal context,
would apply outside the context of 18 U.S.C. § 31 ....” In re
Guancione, No. C-12-3910 EMC, 2012 WL 4120243, at *2
(N.D. Cal. Sept. 18, 2012); see also Leith v. State of Missouri
Highway Patrol, No. 05-4399-CV-SFJG, 2007 WL 869508,
at *2 (W.D. Mo. Mar. 20, 2007) (“Plaintiff wrongly believes
that he may drive his unregistered vehicle without a valid
driver's license and without a title on the public highways in
Missouri. Plaintiff argues that he is not subject to Missouri
licensing laws because his car is not a motor vehicle given that
it is not used in commerce.”; “[T]he motor vehicle definitions
used in ...18 U.S.C. § 31 do not apply to plaintiff.”); Williams
v. City of Battle Creek, No. 25-CV-10270, 2025 WL 714441,
at *3 (E.D. Mich. Mar. 5, 2025) (“Title 18 is not a source
of any general right to travel.”; “Critically, Title 18 does not
cover the entire subject of motor vehicle regulation. Instead,
sections of this Title criminalize select and narrowly defined
conduct as it relates to commercial vehicles. Title 18 does
not address state vehicle registration requirements, much less
preempt the Michigan Vehicle Code.”). Thus, to the extent
plaintiff suggests that 18 U.S.C. § 31 or any other portion of
Title 18 applies here to exempt him from the state vehicle and
traffic laws, such claims fail to state a claim upon which relief
can be granted and are frivolous.
*9 Similarly, plaintiff cites 49 C.F.R. § 395.1(j)(1) to argue
that “federal regulations recognize traveling and driving” as
different activities. Compl. at 7. However,
49 C.F.R. § 390.1 et seq., [ ] sets definitions
for the Federal Motor Carrier Safety Administration's
promulgated regulations for commercial vehicles. Notably,
each of these definition-providing statutes explicitly states
that the definitions therein apply only to their respective
statutory chapters or subchapters, not the entirety of the
United States Code [ ]or to any state's laws. See 18 U.S.C.
§ 31(a)(6) (noting that the definitions therein apply only to
“this chapter,” Chapter 2 – Aircraft and Motor Vehicles (§§
31 – 40A)); 49 C.F.R. § 390.1 (noting that the definitions
therein apply only to “this subchapter,” “Subchapter B –
Federal Motor Carrier Safety Regulations”). Congress has
thus expressed an intent that these definitions be construed
narrowly, rather than as a substitute for any possible
state statutory definitions. More importantly, neither of
these statutes – each covering the narrow topic of driving
commercial vehicles – actually conflicts with how the
State applies or enforces its driver's license and vehicle
registration requirements against private individuals like
[the plaintiff].
Redman v. Sununu, No. 21-CV-267-JL, 2021 WL 6880649,
at *10 (D.N.H. Nov. 24, 2021), report and recommendation
adopted sub nom. Redman v. Governor, No. 21-CV-267-
JL, 2022 WL 410072 (D.N.H. Feb. 10, 2022). Thus, to the
extent plaintiff contends that 49 C.F.R. 395.1(j)(1) or any
other section of the CFR supports his contention that he was
traveling but not driving, and, thus, exempt from the licensing
and registration requirements, those arguments are entirely
without merit and are frivolous and fail to state a basis for any
constitutional violation. 13
*10 In sum, there is no federal law or regulation
differentiating between travel and driving that is applicable
in plaintiff's situation and no Supreme Court precedent
supporting plaintiff's position. Instead, there is well-settled
law stating that a state has a right to enforce its vehicle
and traffic laws requiring licensing and registration of motor
vehicles. It is clear that no constitutional right was violated
by any requirement that he be required to have a valid license
and registration to operate his motor vehicle. Thus, plaintiff's
constitutional rights were not violated by this requirement nor
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the requirement that he pay the impound fee for the return of
his vehicle.
As there is no underlying constitutional violation, there can be
no conspiracy to commit a constitutional violation. See Romer
v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)
(“A violated constitutional right is a natural prerequisite
to a claim of conspiracy to violate such right. Thus, if a
plaintiff cannot sufficiently allege a violation of his rights,
it follows that he cannot sustain a claim of conspiracy to
violate those rights.”) (internal citation omitted). Moreover, to
proceed pursuant to Section 1985 for a conspiracy to violate
one's constitutional rights, a plaintiff must make a showing
of a “class-based animus,” which plaintiff has not alleged
here. Jews for Jesus, Inc. v. Jewish Community Relations
Council of New York, Inc., 968 F.2d 286, 291 (2d Cir. 1992).
“Section 1986 addresses ‘neglect to prevent’ conspiracies
under § 1985. Thus, where no cause of action lies under
§ 1985, no cause of action can lie under § 1986.” Dill v.
Vill. of Gowanda, 952 F. Supp. 989, 995 (W.D.N.Y. 1997)
(quoting Levy v. City of New York, 726 F.Supp. 1446 (S.D.N.Y.
1989)). Accordingly, it is recommended that plaintiff's section
1983 claims, section 1985 conspiracy claims, and section
1986 “neglect to prevent” claims against all defendants be
dismissed for failure to state a claim upon which relief can be
granted and frivolity.
“[T]here is no requirement that a court address every single
potential ground for dismissal where it is clear that a claim
should be dismissed”; however, the undersigned would be
remiss not to note that there exist several additional grounds
for dismissal. Gerken v. Gordon, 1:24-CV-0435 (MAD/
CFH), 2024 WL 4608307, at *5 (N.D.N.Y. Oct. 29, 2024)
(quoting Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024
WL 2291701, at *13 (N.D.N.Y. May 21, 2024)) (citing, inter
alia, Curtis v. Greenberg, No. 22-252-CV, 2023 WL 6324324,
*2 n.3 (2d Cir. Sept. 29, 2023)). Thus, they will be mentioned
briefly for the sake of completeness of review.
Plaintiff has failed to demonstrate that John Vandenburgh,
owner of JR Transmission – where plaintiff's vehicle was
apparently towed and impounded – is a state actor. Nothing in
plaintiff's complaint plausibly suggests he was acting under
the color of state law. In addition to any claim against
him being subject to dismissal for failure to state a claim
and frivolity, any claims against Vandenburgh brought under
section 1983 may be dismissed for this reason. Plaintiff
contends, for purposes of his section 1983 claims against him
that Vandenburgh “jointly engaged with state officials in the
action, was acting under the color of the New York State
Vehicle and traffic law” and contends that “under color of law
doesn't require Defendant Jon VanDenburgh to be an officer
of the State, it is enough that he was a willing participant.”
Compl. at 17. Although plaintiff correctly identifies this
principle, his claim fails because there can be no conspiracy
to commit a violation of constitutional rights if there is no
violation of a constitutional right. Further, plaintiff proffers no
support for any argument that Vandenburgh was engaged in a
conspiracy with state actors merely because plaintiff's vehicle
was transported to his garage, and he requires a fee to release
the vehicle.
*11 To the extent plaintiff seeks to bring a claim for
malicious prosecution against all defendants pursuant to
section 1983, 14 Compl. at 19-20,
[t]here 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). 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.
Joyner v. County of Cayuga, No.
5:20-CV-60 (MAD/TWD), 2020 WL
1904088, at *8 (N.D.N.Y. Apr. 17,
2020) (citing 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)).
Pittman v. Edwards, No. 5:20-CV-319 (GLS/ATB), 2020
WL 4194479, at *5 (N.D.N.Y. June 22, 2020), report and
recommendation adopted, No. 5:20-CV-319 (GLS/ATB),
2020 WL 4192547 (N.D.N.Y. July 21, 2020). To assert a claim
for malicious prosecution under the Fourth Amendment, a
plaintiff must demonstrate he was arrested without probable
cause as there can be no federal civil rights claim for false
arrest where the involved officers had probable cause. See,
e.g., Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118-19 (2d
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Cir. 1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134
L.Ed.2d 779 (1996); Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994).
Plaintiff was ticketed for operating a vehicle without a license
and without valid registration. See generally Compl. He
concedes that he did not have a valid license or registration,
but contends they were not required. See id. at 8-11. Thus, in
addition to failing to state a cause of action due to a lack of any
constitutional violation, plaintiff has failed to demonstrate
that defendants did not have probable cause to ticket him
for these violations of the vehicle and traffic law. Thus, his
malicious prosecution claim may also be dismissed on for this
reason.
Further, plaintiff fails to explain how defendants, only two of
whom are prosecutors – Stanzione and Sandleitner 15 – were
personally involved in any malicious prosecution. Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) “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)).
*12 Plaintiff's claims that the vehicle and traffic laws, or the
defendants’ application of these laws to his use of his motor
vehicle, violate the Thirteenth Amendment's prohibition
against slavery and involuntary servitude also fails to state
a claim upon which relief can be granted and frivolity.
Plaintiff contends that because defendants, collectively, seek
to “extract a use tax from the Plaintiff in the form of a
driver's license and registration, when not legally required,”
this amounts to “forced labor/involuntary servitude.” Compl.
at 21. As this argument is premised upon the false belief that
defendants cannot validly enforce the vehicle and traffic law
or that such laws are violative of his constitutional rights, this
claim fails. Further, to the extent plaintiff seeks to proceed
pursuant to 18 U.S.C. § 1589, this is a criminal statute that
has no applicability to plaintiff's claims here. Plaintiff has no
authority to compel or enforce federal criminal law as there
exists no private right of action to enforce this statute. See see
also McFadden v. Ortiz, 5:12-CV-1244 (MAD/ATB), 2013
WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013)
As to plaintiff's cause of action under the Administrative
Procedure Act of 1946, 5 U.S.C. § 551, et seq., plaintiff's
claims are without merit because there is no requirement to
provide substantive due process or a Court order as there is
no constitutionally-protected right involved. See Compl. at
16. Further, the Administrative Procedure Act applies only to
federal agencies. See 5 U.S.C.A. § 701. None of the named
defendants are federal agencies. The Second Circuit rejected
the theory that a state agency could be a quasi-federal agency
for purposes of the Administrative Procedure Act. See New
York v. Atl. States Marine Fisheries Comm'n, 609 F.3d 524,
534-35 (2d Cir. 2010) (though concluded that it did not apply
in this case).
Plaintiff also claims, in the “title” section on the first page
of his complaint that defendants collectively violated the
“Constitution's Spending Clause, Article I, Section 8, Clause
1. Compl. at 1. Plaintiff's only other mention of the Spending
Clause is within his Monell cause of action wherein he claims
that the State of New York, County of Greene, and Town
of Cairo's alleged policy, custom, or practice of applying/
enforcing an unconstitutional definition of motor vehicle,
which violates his and others; substantive due process,
“violates the United States Constitution's spending clause
regarding federal funding.” Compl. at 22. 16 In addition to the
grounds for dismissal above, as the undersigned concluded
that the plaintiff has stated no constitutional violation, such
claim is also subject to dismissal for failure to state a claim
upon which relief can be granted and frivolity.
Addressing plaintiff's Monell claims, he also only
conclusorily pleads the existence of a formal policy or
custom. Tieman v. City of Newburgh, No. 13-CV-4178
(KMK), 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26, 2015)
(“[M]ere allegations of a municipal custom, a practice of
tolerating official misconduct, or inadequate training and/
or supervision are insufficient to demonstrate the existence
of such a custom unless supported by factual details.”).
“Although there is no heightened pleading requirement
for complaints alleging municipal liability under § 1983,
see Leatherman v. Tarrant Cnty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122
L.Ed.2d 517 (1993), a complaint does not ‘suffice if it tenders
naked assertion [s] devoid of further factual enhancement.’
” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Plaintiff bases his claim upon the collective defendants’ 17
“policy” to “misinterpret” the definition of “motor vehicle”
and the failure to train employees on the “proper” definition
of motor vehicle or traveling versus driving. Compl. at
22-23. However, as the undersigned has concluded that the
underlying claims are without merit, any claims grounded
in Monell for the existence of a policy/custom or failure to
train are without force and must be similarly dismissed as
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frivolous and for failure to state a claim upon which relief can
be granted.
*13 As for plaintiff's libel, slander, intentional infliction
of emotional distress, and false imprisonment claims,
as the undersigned recommends dismissal of all federal
claims, the undersigned further recommends that the Court
decline to extend supplemental jurisdiction to review these
claims. “Where, as here, a plaintiff's federal claims will
be dismissed before trial, a district court should generally
decline to exercise supplemental jurisdiction over any state
law claims absent exceptional circumstances.” B.A. v. City of
Schenectady Sch. Dist., 209 F. Supp. 3d 515, 528 (N.D.N.Y.
2016). 18 Even if, arguendo, the Court were to reach these
state law claims, because plaintiff bases his claims for libel,
slander, intentional infliction of emotional distress, and false
imprisonment on the allegation that defendants’ interpretation
and application of the term “motor vehicle” and “traveling”
versus “driving” violates his constitutional rights, and that
claim is entirely without merit, these state law claims fail
to state claims upon which relief could be granted and are
frivolous.
Insofar as plaintiff seeks to proceed pursuant to various
provisions of New York State Penal Law, in addition
to recommending that the Court decline to exercise
supplemental jurisdiction over these claims, such claims must
also be dismissed because plaintiff cannot seek the initiation
of a criminal prosecution, an arrest, or enforcement of any
state penal law. See Leeke v. Timmerman, 454 U.S. 83,
86-87 (1981) (holding that there can be no private initiation
of a criminal prosecution or arrest); see also McFadden,
2013 WL 1789593, at *3 (affirming that there is no private
right of action to enforce state or federal criminal statutes).
Accordingly, in addition to recommending dismissal of the
complaint against New York State for sovereign immunity
and the remainder in its entirety for frivolity, plaintiff's state
law claims for assault, robbery in the second degree, coercion
in the third degree, and official misconduct also may be
dismissed for failure to state a claim.
IV. Conclusion
In sum, plaintiff's complaint, insofar stated against the State
of New York and the state officials in their official capacities
for monetary damages, is barred by sovereign immunity. The
remainder of plaintiff's complaint should be dismissed as
frivolous as it “is based on an indisputably meritless legal
theory,’ ” Livingston, 141 F.3d at 437, and for failure to
state a claim upon which relief can be granted. Generally,
“[a] pro se complaint should not be dismissed without the
Court granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid
claim might be stated.” Gerken, 2024 WL 4608307, at *15
(quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)
(citation and internal quotation marks omitted)). “However,
if the problems with a complaint are ‘substantive’ rather than
the result of an ‘inadequately or inartfully pleaded’ complaint,
an opportunity to re-plead would be ‘futile’ and ‘should be
denied.’ ” Id. (citing Edwards v. Penix, 388 F. Supp. 3d 135,
144-45 (N.D.N.Y. 2019)) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000)). Here, the deficits in plaintiff's
complaint are substantive and cannot be cured by a better
pleading; thus, it is recommended that plaintiff not be afforded
an opportunity to amend.
For the reasons set forth herein, it is hereby:
ORDERED, that plaintiff's in forma pauperis application,
dkt. no. 2, is, GRANTED; and it is
*14 RECOMMENDED, that plaintiff's complaint, insofar
asserted against the State of New York and against the
following individual defendants in their official capacities for
monetary damages, Schrader, Raynor, Marriott, Kusminsky,
Schroeder, Groden, Watts, Kaplan, Stanzione, Sandleitner,
Scaturro, and Christman, see generally dkt. no. 1, be
dismissed without prejudice 19 and without leave to amend
on sovereign immunity grounds, 20 28 U.S.C. § 1915A(b)(2),
§ 1915(e)(2)(B)(iii); and it is further
RECOMMENDED, that the remainder of plaintiff's
complaint, Dkt. No. 1, be DISMISSED in its entirety with
prejudice and without opportunity to amend based on frivolity
and failure to state a claim upon which relief can be granted,
28 U.S.C. § 1915(e)(2)(B)(i), (ii); and it is further
RECOMMENDED, that the Court decline to exercise
supplemental jurisdiction over plaintiff's state law claims; and
it is
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with
Local Rules.
IT IS SO ORDERED.
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Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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. See 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. 6(a), 72. 21
All Citations
Slip Copy, 2025 WL 1448314
Footnotes
1 Plaintiff does not provide how much income he receives, if any, from “work within walking distance.” Dkt. No. 2.
2 The undersigned observes that plaintiff paid the filing fee in another action he filed in this District, 1:25-
CV-0122 (MAD/PJE), Dan v. Hochul, commenced on January 27, 2025. This Court has deemed these cases
related. In Dan v. Hochul, plaintiff raises essentially identical claims against defendant Hochul that he raises
against the defendants in this action, all arising from the same underlying incident. A motion to dismiss is
pending in that action.
3 Plaintiff is advised that, despite being granted IFP status for this action, he is still required to pay any costs
or fees he may incur in connection with this action.
4 Despite the statutory language referring to incarcerated individuals, these requirements apply equally to
non-prisoner pro se litigants seeking to proceed in forma pauperis. See N.D.N.Y. L.R. 72.3(d) (“Unless the
Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred to a
Magistrate Judge for the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an
application to proceed in forma pauperis is filed.”).
5 Unless otherwise noted, the Court has provided plaintiff copies of the unpublished cases cited herein.
6 The Court's citation to this document is to the pagination located at the header of each page, generated by
the Court's electronic filing and case management software.
7 Plaintiff seeks to proceed on the following claims under New York State Penal Code: Robbery in the Second
Degree, Coercion in the Third Degree, and Official Misconduct. See Compl. at 24-28.
8 Plaintiff indicates that he seeks to bring the following state law claims pursuant to this Court's supplemental
jurisdiction: false imprisonment, libel, slander, and negligent infliction of emotional distress. See Compl. at
25-28, 30-31.
9 Plaintiff states, in a “title” on the first page of his complaint, that the action is commenced pursuant to, among
things, “The United States Constitution's Spending Clause, Article I, Section 8, Clause 1.” Compl. at 1.
10 18 U.S.C. § 1589 is a criminal code, relating to persons who “knowingly provides or obtains the labor or
services of a person” by, among other things, force, threats of force, physical restraint, threats of physical
restraint, means of serious harm or threats of serious harm to that person or another, “by means of the abuse
or threatened abuse of law or legal process,” or “by means of any scheme, plan, or pattern intended to cause
the person to believe that, if that person did not perform such labor or services, that person or another person
would suffer serious harm or physical restraint.”
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11 Line 122 of the complaint states “This federal law was ‘Enacted into law in 1946, and the key to this law is
that it states that the government's administrative policies must be in harmony with the Constitution.” (Compl.
at 16, ¶122).
12 Plaintiff states that Schrader returned from his cruiser “[a] minute and a half later.” Compl. at 9.
13 Further, the 131-year-old United States Supreme Court case on which plaintiff purports to rely, Interstate
Commerce Commission v. Brimson, 154 U.S. 447 (1894), has never been interpreted by any court of law to
hold what plaintiff states it does. See Compl. at 7. This case does not recognize a constitutional, fundamental
right to drive or address a meaningful distinction between traveling and driving or operating a motor vehicle
for “private” use, as it applies in this context. Indeed, it does not provide any support for plaintiff's arguments.
See Gen. Tobacco & Grocery Co. v. Fleming, 125 F.2d 596, 599 (6th Cir. 1942) (“In Interstate Commerce
Clause v. Brimson, 154 U.S. 447 ... ‘The inquiry whether a witness before the commission is bound to answer
a particular question propounded to him, or to produce books, papers, etc., in his possession and called
for by that body, is one that cannot be committed to a subordinate administrative or executive tribunal for
final determination.’ Moreover, the opinion asserts that the regulatory power of Congress over interstate
commerce carries no power to destroy or impair fundamental guarantees of personal rights recognized by the
Constitution as inhering in the freedom of the citizen. It was held that a citizen, in a proceeding brought in a
Circuit Court of the United States by the Interstate Commerce Commission to compel him to answer particular
questions and to produce particular books in his possession, was free to contend before that court that ‘he was
not legally bound to produce the books, papers, etc., ordered to be produced; or that neither the questions
propounded nor the books, papers, etc., called for relate to the particular matter under investigation, nor to
any matter which the Commission is entitled under the Constitution or laws to investigate.’ ”). Plaintiff has
provided no valid authority supporting his position. See, e.g., Matthew v. Honish, 223 F. App'x 563 (7th Cir.
2007) (finding “meritless” the pro se plaintiff's argument that state requirements of licensure and registration
violated his right to travel as there is no fundamental right to drive. That the plaintiff contended that his inability
to have a driver's license denied him “ ‘a single mode of transportation- in a car driven by himself ... does not
impermissibly burden his right to travel.”) (quoting Miller v. Reed, 176 F. 3d 1202, 1206-06 (9th Cir. 1999)).
14 Although plaintiff does not explicitly state the Constitutional amendment pursuant to which he seeks relief,
a claim for false arrest under section 1983 is brought for violations of the Fourth Amendment. See Oakes v.
Cooke, 858 F. Supp. 330, 335 (N.D.N.Y. 1994)(“In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d
114 (1994), the Supreme Court acknowledged the validity of section 1983 malicious prosecution claims and
held that the right to be free from prosecution without probable cause, which forms the very essence of a
malicious prosecution claim, arises under the Fourth Amendment.”).
15 Even if plaintiff were, arguendo, able to overcome all other defects, Stanzione and Sandleitner likely would
also be protected by absolute prosecutorial immunity. See Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987);
see also Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995).
16 Plaintiff does not indicate that he is seeking to bring a claim as a federal taxpayer for an alleged violation of
the Spending Clause, Article I, Section 9, Clause 1, of the United States Constitution or that he is challenging
the exercise of congressional power under the taxing and spending clause.
17 Plaintiff further fails to demonstrate how, the State of New York, a nonmunicipal entity can be held liable
under Monell.
18 Plaintiff refers to a 50h proceeding at which he contends he “was hoping for a resolution of the matter.”
Compl. at 15. Although the exact claims in this state court proceeding are unclear, to the extent plaintiff may
possibly seek review in of the unsuccessful outcome of any such proceeding in this Court, it is well-settled that
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this Court cannot perform what is, in effect, an appellate review of such state court judgment under Rooker-
Feldman. See McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010).
19 Generally, when the Court lacks subject matter jurisdiction, a dismissal must be without prejudice. See, e.g.,
Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 126 (2d Cir. 2022) (“A dismissal for lack of jurisdiction must be
without prejudice rather than with prejudice.”).
20 Although dismissed based on sovereign immunity grounds, the dismissal as it relates to the State defendants
may also be considered a dismissal based on frivolity. See, e.g., Canfield v. State of New York, 6:24-CV-1357
(GTS/TWD), 2025 WL 1288747, at *2 (N.D.N.Y. May 5, 2025) (citing 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’ ” in a case involving absolute immunity).
21 If you are proceeding pro se and are 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 the Report-Recommendation and Order was mailed to you to serve and file objections. See FED. R.
CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal federal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal federal
holiday. See id. § 6(a)(1)(c).
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Davis v. Campbell, Not Reported in F.Supp.3d (2014)
© 2025 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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Davis v. Campbell, Not Reported in F.Supp.3d (2014)
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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).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 247 of 520

Frost v. CVR Associates Inc., Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 6340993
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Yvonne FROST, Plaintiff,
v.
CVR ASSOCIATES INC., et al., Defendants.
1:19-CV-9190 (CM)
|
Signed 11/26/2019
Attorneys and Law Firms
Yvonne Frost, New York, NY, pro se.
ORDER OF DISMISSAL
COLLEEN McMAHON, Chief United States District Judge:
*1 Plaintiff, appearing pro se, brings this frivolous action.
By order dated November 21, 2019, the Court granted
Plaintiff's request to proceed without prepayment of fees, that
is, in forma pauperis (“IFP”). The Court dismisses this action
for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof,
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.
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).
A claim is frivolous when it “lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989),
abrogated on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S.
25, 33 (1992) (holding that a “finding of factual frivolousness
is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible”); Livingston, 141 F.3d at
437 (2d Cir. 1998) (“[A]n action is ‘frivolous’ when either: (1)
the factual contentions are clearly baseless ...; or (2) the claim
is based on an indisputably meritless legal theory.”) (internal
quotation marks and citation omitted).
DISCUSSION
Because of Plaintiff's history of filing frivolous and vexatious
actions, by order dated November 7, 2019, the Court barred
Plaintiff from filing future civil actions IFP in this Court
without first obtaining from the Court leave to file. See Frost
v. New York City (HRA), 1:19-CV-8936, 6 (S.D.N.Y. Nov. 7,
2019). Although the filing bar does not apply to this action,
which was filed before the filing bar was issued, this action
is not a departure from Plaintiff's pattern of frivolous and
vexatious filings.
Plaintiff alleges, “Love do not hurt. If you love my baby
you would not hurt him. The government is retaliating. The
government have put me in a position and made it difficult
– very difficult for me to choose between my baby and their
job.” (ECF 2, p. 5.) She also alleges that
They will kill Uriel if I don't go. Someone said “I said no.”
Jesus said “that is a nice gift you have they would try to
take it.” Now government want me purchase a house from
them. If I turn around and purchase or take these keys that
means I am letting them walk free for all the wrongs they
have done to me in sexual assaults.
(ECF 2, p. 5-6.)
Even when read with the “special solicitude” due pro se
pleadings, Triestman, 470 F.3d at 475, Plaintiff's claims rise
to the level of the irrational, and there is no legal theory on
which she can rely. See Denton, 504 U.S. at 33; Livingston,
141 F.3d at 437. The Court therefore dismisses this action as
frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
*2 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.
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CONCLUSION
The Clerk of Court is directed to assign this matter to my
docket and note service on the docket. Plaintiff has consented
to electronic service of Court documents. (ECF 3.)
Plaintiff's action is dismissed as frivolous under 28 U.S.C. §
1915(e)(2)(B)(i).
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., 2019 WL 6340993
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 249 of 520

Hare v. Hayden, Not Reported in F.Supp.2d (2011)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Follow by Lewis v. Hanson, N.D.N.Y., April 9, 2020
2011 WL 1453789
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Susan Lee HARE, Plaintiff,
v.
James HAYDEN et al., Defendants.
No. 09 Civ. 3135(RWS).
|
April 14, 2011.
OPINION
SWEET, District Judge.
*1 Defendants Reverend Maria Lopez (“Lopez”),
Deputy Superintendant James Hayden (“Hayden”), and
Grievance Supervisor Kim Watson (“Watson”) (collectively,
“Defendants”) have filed motions for summary judgment. For
the reasons stated below, these motions are granted.
Prior Proceedings
Plaintiff Susan Lee Hare (“Hare” or “Plaintiff”) filed
her complaint on April 1, 2009, alleging misconduct
by Superintendant Ada Perez, Superintendant Elizabeth
Williams, Hayden, Lopez, and Watson. Defendants Perez,
Williams, Hayden, and Watson answered on September 16,
2009. Defendant Lopez answered on August 31, 2010. On
November 22, 2010, the Court signed off on the stipulated
dismissal of Defendants Perez and Williams.
Defendant Lopez and Defendants Hayden and Watson filed
separate motions for summary judgment on December 13,
2010 and December 14, 2010, respectively. These motions
were heard on submission on January 19, 2011.
Statement of Facta
In August 2008, Plaintiff was programmed as a Catholic
clerk assisting Father O'Shea, the Catholic Chaplain at
Bedford Hills Correctional Facility (“BHCF”). She was
programmed for both the morning and afternoon shifts. See
Deposition of Susan Hare, attached to Declaration of John
Knudsen (“Knudsen Dec”) as Exhibit A (“Hare Dep.”),
at 15. On August 14, 2008, a meeting occurred between
Plaintiff, Father O'Shea, and Hayden. At that meeting, Father
O'Shea recommended that Plaintiff remain the Catholic clerk
after his retirement on August 15, and Hayden agreed that
Plaintiff remain in the position. Affirmation of James Hayden
(“Hayden Aff.”), ¶ 3, attached to Knudsen Dec. as Exhibit C.
Plaintiff then sent a letter dated August 16, 2008 to Hayden in
which she made several allegations against Reverend Lopez,
including that Lopez met with Hare on August 15, that Lopez
ordered the moving of a cabinet with Catholic items, and
that Lopez ordered her clerks to pack up the Catholic items
in the Sacristy into bags and put them out for the trash.
See Hare Letter dated Aug. 18, 2008, attached to Knudsen
Dec. at Exhibit B at Hare 27–31. The underlying theme of
Plaintiff's letter appears to have been that Reverend Lopez
was using her position to defile the Catholic religion. See Id.
at 30 (“the Catholic (sic) have been defiled by this woman
and her community.”) In response to Plaintiff's letter and to
address the allegations, Hayden set up a meeting on August
18, 2008 with Plaintiff, Lopez and two other inmates, Tuttle
and Ramsey. Hayden Aff., ¶ 5.
The August 18 meeting between Plaintiff and Reverend
Lopez was very contentious. Hayden Aff. ¶ 6. During the
meeting, Hayden attempted to verify the allegations made in
Plaintiff's August 16 letter. See Hare 110–11. He could not
substantiate any of Plaintiff's allegations and determined that
they were largely hearsay. Id.; Hayden Aff, ¶ 6. According
to Hayden, Lopez did not attempt to attack Plaintiff during
that meeting. Hayden Aff. ¶ 7; Affirmation of John Ruiz, ¶ 2,
attached to Knudsen Dec as Exhibit D.
*2 Plaintiff contends that on August 18, Lopez verbally
abused and physically threatened her in the chapel. Pl. Opp.
Aff., at 4–7. Plaintiff claims that this interaction led to an
investigation which prevented her from working as Catholic
clerk. Id. at 4. It is unclear whether this interaction was
separate from the August 18, 2008 meeting.
Plaintiff filed a grievance alleging that Reverend Lopez
verbally harassed her during the August 18 meeting. See
Hare 104–105. Hayden notified the Superintendent's Office
of his personal observations during that meeting, which were
incorporated into the Superintendent's response. See Hare
103; Hayden Aff., ¶ 8. Following the August 18 meeting,
Plaintiff did not appear for her program assignment as
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Catholic clerk for two weeks, after which time Reverend
Lopez forwarded a memorandum to counselor Greenfield
on September 2, 2008, requesting that Plaintiff be removed
from her position as Catholic clerk and noting that no new
Catholic clerk should be named until a Catholic Priest had
been hired. See Hare 42. Plaintiff contends that this report
was false and that she showed up for work but was sent away.
Pl. Opp. Aff. at 9. Counselor Greenfield contacted Hayden to
discuss Lopez's request for Plaintiff's removal. Hayden Aff.,
¶ 9. According to Hayden, Plaintiff was removed from her
Catholic clerk position by him on September 8, 2008, at the
latest. Hayden Aff., ¶ 11. Plaintiff contends that she was not
removed until September 15, 2008. Pl. Opp. Aff. at 9.
Hayden claims to have removed Plaintiff from her position
for multiple reasons. Initially, it was reported that plaintiff
failed to report for two weeks for programming after Father
O'Shea retired. Hayden Aff., ¶ 10; Hare 42. Also, Hayden
determined that Plaintiff was being disruptive to the provision
of Catholic services at Bedford Hills. Hayden Aff. ¶ 10.
Hayden had investigated plaintiffs numerous allegations
about Reverend Lopez and her alleged interference with the
Catholic programs and could not substantiate any of them.
Id. For example, Hayden states that Plaintiff was telling
inmates and outside civilians in the Catholic community
that Lopez had the cabinet with Catholic items in it moved,
and had articles removed from the Sacristy. Id. Hayden had
received a call from Deacon Lou Santore, a civilian volunteer,
who had been told these claims by Plaintiff and was upset.
Hayden investigated these claims and determined them to be
inaccurate. Id. Instead, he determined that the cabinet was
moved by a volunteer from the long-term inmate committee,
and that Plaintiff appeared to be the only person with the
combination to the Sacristy. Id.; Affirmation of Kowsillia
Magoo, ¶ 4, attached to Knudsen Dec. as Exhibit E. As part
of his responsibilities as Deputy Superintendent of Programs,
Hayden states that he could not allow inmates to use their
programming position to disrupt the inmate and civilian
volunteer populations. Id.
*3 Additionally, Hayden discussed this issue with all the
other chaplains at the facility, who agreed that Plaintiff should
no longer remain as the Catholic clerk. Hayden Aff., ¶ 11.
This included Sister MaryAnn Collins, who was a part-time
employee at the facility and apparently effectively acted as
head of the Catholic community there. Id. Finally, Hayden
determined that Plaintiff and Reverend Lopez were not able
to work together. Id. Plaintiff drafted a handwritten grievance
complaint on September 4, 2008, in which she complained
that Reverend Lopez was retaliating against her because of
her prior grievance, and asked that she “stop being harassed
and retaliated against by Rev. Lopez.” Hare 40–41. Defendant
Watson responded to that grievance, noting that Plaintiff no
longer worked as a clerk and, thus, Reverend Lopez could no
longer be harassing her. Hare 39. Watson states that this was
an attempt by her to informally resolve Plaintiff's grievance.
Affirmation of Kim Watson (“Watson Aff.”), at ¶ 3, attached
as Exhibit F to Knudsen Dec. Plaintiff did not request to
have the grievance formally processed, but if she had, Watson
claims she would have done so. Id. Plaintiff contends that
she took Watson's response to mean that she could not file a
grievance.
Summary Judgment Standard
Summary judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). In considering a summary judgment
motion, the Court must “view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inference in its favor, and may grant summary judgment only
when no reasonable trier of fact could find in favor of the
nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d
Cir.1995) (internal citations and quotation marks omitted);
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Affidavits submitted in opposition
to summary judgment must be based on personal knowledge
from a competent source, and “set forth such facts as would
be admissible in evidence.” Patterson v. County of Oneida,
375 F.3d 206, 219 (2d Cir.2004) (quoting Fed.R.Civ.P. 56(c)).
Hearsay or other evidence that would be inadmissible at trial
cannot be credited to defeat a summary judgment motion. See
Id. at 219 (“an affidavit's hearsay assertion that would not be
admissible at trial if testified to by the affiant is insufficient
to create a genuine issue for trial.”).
Plaintiff's Retaliation Claims are Dismissed
In order to state a valid retaliation claim, a plaintiff must
allege that her actions were protected by the Constitution,
and that such “conduct was a substantial or motivating factor
for the adverse actions taken by prison officials.” Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir.2003) (internal citations
omitted). There must be a “causal connection between
the protected [conduct] and the adverse action.” Gill v.
Pidlypchak, 389 F,3d 379, 380 (2d Cir.2004) (internal citation
and quotations omitted). “A plaintiff cannot state a retaliation
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claim in wholly conclusory terms, but rather, must provide
a pleading that is ‘supported by specific and detailed factual
allegations.’ “ Anderson v. Lapolt, No. 07 Civ. 1184, 2009
WL 3232418, at *5 (N.D.N.Y. Oct. 1, 2009) (quoting Friedl
v. City of New York, 210 F.3d 79, 85–86 (2d Cir.2000)); see
also Sawyer v. Jowers, No. 08 Civ. 186, 2008 WL 4791557, at
*6 (N.D.Tex. Oct. 31, 2008) (“To state a claim of retaliation,
the inmate must allege more than his personal belief that
he is the victim of retaliation. Conclusory allegations of
retaliation are not sufficient; the plaintiff must produce direct
evidence of motivation or allege a chronology of events
from which retaliation may plausibly be inferred”) (internal
citations omitted); Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir.1995) (if plaintiff's claim of retaliation had been based
on circumstantial evidence alone, and not also supported by
direct evidence of defendant's admission, Court would be
inclined to grant summary judgment); Bussey v. Phillips, 419
F.Supp.2d 569, 585 (S.D.N.Y.2006) (“In order to survive
summary judgment on a retaliation claim, a plaintiff bears
the burden of showing two genuine issues of material fact:
first, that the plaintiff engaged in constitutionally protected
conduct, and, second, that the conduct was a substantial or
motivating factor for the adverse actions taken by prison
officials.”).
*4 Even where a plaintiff meets her burden of establishing
a prima facie retaliation claim, it is still subject to dismissal
if sufficient other non-retaliatory reasons to take the adverse
action were present. See Bussey, 419 F.Supp.2d at 585; Gayle
v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). Furthermore,
inmates have no right, constitutional or otherwise, to any
particular job or assignment within a prison. Gill v. Mooney,
824 F.2d 192, 194 (2d Cir.1987); Hodges v. Jones, 873
F.Supp. 737, 745 (N.D.N.Y.1995) (citing Lane v. Reid, 575
F.Supp. 37, 39 (S.D.N.Y.1983). Inmates can be removed from
prison assignments for virtually any reason, provided that
such decisions are not based on the inmate's race or religion.
Bussey, 419 F.Supp.2d at 589 (S.D.N.Y.2006).
It should be noted that “courts must approach prisoner
claims of retaliation with skepticism and particular care,”
as such claims are “easily fabricated” and run the risk of
“unwarranted judicial intrusion into matters of general prison
administration.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir.2001), overruled on other grounds in Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002). See also Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir.1996) (noting that prisoner
retaliation claims are “ ‘prone to abuse’ because prisoners can
claim retaliation for every decision they dislike.”) (quoting
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)); Colon,
58 F.3d at 872 (“because we recognize both the near
inevitability of decisions and actions by prison officials to
which prisoners will take exception and the ease with which
claims of retaliation may be fabricated, we examine prisoners'
claims of retaliation with skepticism and particular care.”);
Gill, 824 F.2d at 194 (because of the potential for abuse, the
Court of Appeals requires a “higher level of detail in pleading
[retaliation claims]”).
Plaintiff contends that she was removed from her position as
Catholic clerk by Hayden in retaliation for her complaints
against Lopez. 1 There is no dispute that Plaintiff's complaints
against Lopez are protected speech and that her removal
from her position as Catholic clerk was an adverse action;
however, Plaintiff fails to establish the causal link between
her complaints and her dismissal, particularly in light of
legitimate non-discriminatory reasons for her dismissal given
by Hayden.
As a general matter, it is difficult to establish one defendant's
retaliation for complaints against another defendant. See
Wright v. Goord, 554 F.3d 255, 274 (2d Cir.2009) (dismissing
retaliation claim against a corrections officer when only
alleged basis for retaliation was complaint about a prior
incident by another corrections officer). Here, even giving
Plaintiff every reasonable inference, Plaintiff fails to establish
that Hayden had a motive to retaliate arising from her
complaints against Lopez, and that Hayden's retaliatory
motive formed the basis for her dismissal.
*5 To the extent Plaintiff contends that Hayden was
incompetent or covering up Lopez's misconduct, the evidence
before the Court indicates otherwise. Hayden investigated
Plaintiff's claims against Reverend Lopez. The August 18,
2008 meeting between Plaintiff, Hayden and Lopez was
called in order for Hayden to investigate Plaintiffs allegations
in her August 16 letter, see Hayden Aff., ¶ 5, and at that
meeting, Hayden questioned both Plaintiff and Lopez to
determine the veracity of Plaintiff's allegations. See Hare 110–
111; Hare Dep., at 73–74. Plaintiff's subsequent grievance
on August 21 alleged that Lopez mistreated her during the
August 18 meeting, a claim for which there was no need for
Hayden to investigate since he was present for the meeting
and knew what had and had not occurred. See Hayden Aff.,
¶ 8. Finally, there is no evidence to indicate that Hayden was
“covering up” for Lopez, and the record indicates that Hayden
reasonably found Plaintiff's complaints against Lopez to be
meritless. Plaintiff's allegations of a cover up are conclusory
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and are insufficient to meet Plaintiff's burden for a retaliation
claim at the summary judgment stage. See Graham, 89 F.3d
at 79.
Even if the Court were persuaded that there was a causal
connection between Plaintiff's complaints against Lopez and
her dismissal for her position as Catholic clerk, Hayden
had valid, non-discriminatory reasons for dismissing her. “A
finding of sufficient permissible reasons to justify state action
is ‘readily drawn in the context of prison administration
where ... prison officials have broad administrative and
discretionary authority.’ “ Graham, 89 F.3d at 79 (quoting
Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994)). Here,
Hayden identified four legitimate reasons for Plaintiff's
removal: (1) she failed to show up for work for 2 weeks 2 ;
(2) her behavior disrupted the overall provision of Catholic
services at Bedford Hills; (3) her removal was recommended
by all the other chaplains, including the part-time chaplain,
Sister MaryAnn Collins; and (4) the inability of Plaintiff and
Lopez to work together. Hayden Aff., ¶¶ 10–11.
Plaintiff's allegations that Lopez independently retaliated
against her, by preventing her from returning to her program
assignment, falsely reporting her absence from her job, and
otherwise acting inappropriately toward her, are belied by
Plaintiff's acknowledgement that Lopez never made any
statement revealing that she engaged in any conduct with
the intent to retaliate against Plaintiff for writing complaint
letters or for any other act by Plaintiff. (Hare Dep. at 135).
Plaintiff can only point to her conclusory assumptions of
Lopez's motive and has failed to adequately substantiate her
claims to survive this motion for summary judgment.
Furthermore, even if Plaintiff did establish that Lopez filed a
false report in retaliation for her complaints, Plaintiff cannot
establish that the adverse action of her dismissal from her
position as Catholic clerk by Hayden arose from that allegedly
false report. As discussed above, Hayden chose to dismiss
Plaintiff for three other legitimate reasons and would have
done so regardless of the report. Hayden Aff., ¶¶ 10–11. See
Graham, 89 F.3d at 79 (quoting Lowrance, 20 F.3d at 535).
Plaintiff's Claim that Lopez Filed a False Misbehavior
Report is Dismissed
*6 To the extent that Plaintiff claims Lopez falsely reported
her absence from work for two weeks, this allegation does
not support a claim. “The Second Circuit has held that the
issuance of false misbehavior reports against an inmate by
corrections officers is insufficient on its own to establish a
denial of due process....” 3 Faison v. Janicki, No. 03 Civ.
6475, 2007 WL 529310, at *4 (W.D.N.Y. Feb. 14, 2007)
(citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997)).
See also Moore v. Casselbeny, 584 F.Supp.2d 580, 582
(W.D.N.Y.2008) (“There is no basis for a constitutional claim
alleging the mere filing of a false report”); Flemings v. Kinney,
No. 02 Civ. 9989, 2004 WL 1672448, at *3 (S.D.N.Y. Jul. 27,
2004) (“[i]t is well settled that ‘a prison inmate has no general
constitutional right to be free from being falsely accused in
a misbehavior report’ ”) (quoting Boddie, 105 F.3d at 862).
Furthermore, the record does not support Plaintiff's assertion
that Lopez's report was false. Officers Ruiz and Magoo both
affirm that they were never instructed by Lopez not to allow
Plaintiff to enter the chapel. Ruiz Aff., ¶ 3; Magoo Aff., ¶ 3.
Lopez denies having falsified the report.
Plaintiff's Claim that She was Unable to File a Grievance
is Dismissed
Plaintiff alleges that she was denied the right to file a
grievance when Watson responded to Plaintiff's September 4,
2008 grievance, which requested that Lopez stop retaliating
against her, by noting that Plaintiff no longer worked as a clerk
and, thus, Reverend Lopez could not retaliate against her. See
Hare 39–41. Watson claims to have sent this memorandum
to Plaintiff in an attempt to informally resolve the grievance,
which is part of Watson's responsibilities, Watson Aff. ¶ 3, but
Plaintiff alleges she understood the memorandum to indicate
that she was not allowed to file a grievance. Watson claims
she would have formally filed the grievance if Plaintiff had
contacted her and requested that it be formally filed. Id.
While there is a dispute of fact as to whether Plaintiff was
allowed to file a grievance, Plaintiff has no constitutionally
protected right to file a grievance, and thus does not have
a cognizable § 1983 claim. See Shell v. Brzezniak, 365
F.Supp.2d 362, 370 (W.D.N.Y.2005) (“[I]nmate grievance
programs created by state law are not required by the
Constitution and consequently allegations that prison officials
violated those procedures does not give rise to a cognizable
§ 1983 claim”) (citing Cancel v. Goord, No. 00 Civ.2042,
2001 WL 303713, *3 (S.D.N.Y. Mar. 29, 2001)); Mastroianni
v. Reilly, 602 F.Supp.2d 425, 437 (E.D.N.Y.2009) (“[T]he
grievance procedure or lack thereof cannot itself form
the basis of a Section 1983 claim because there is no
constitutional right to a grievance mechanism”) (citing Swift
v. Tweddell, 582 F.Supp.2d 437, 445–46 (W.D.N.Y.2008)).
Notably, Defendants do not argue that Plaintiff has failed to
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exhaust her claim of retaliation because this grievance was
not processed through the entire grievance system.
Plaintiff's Claims of Verbal Abuse are Dismissed
*7 Plaintiff accuses Lopez of approaching her on August 18,
2008 “in a menacing way, raising her hands toward plaintiff
from behind in a motion as if to strangle plaintiff” (Pl. Opp.
Aff. at 7) and asserts that Lopez “screamed” at her and
called her a “liar” (Hare Dep. at 57) or otherwise spoke
to her in an abusive manner. While Lopez denies Hare's
allegations regarding her conduct, even when the evidence
concerning them is viewed most favorably to Plaintiff, these
allegations do not support an action pursuant to § 1983. The
Eighth Amendment proscribes the “ ‘unnecessary and wanton
infliction of pain’ “ on prisoners by prison officials. Boddie,
105 F.3d at 861 (quoting Whitley v. Albers, 475 U.S. 312, 319
(1986)). Hare does not claim that any actual physical harm
was caused to her by Lopez, and she acknowledged in her
deposition testimony that, on the occasion when she alleges
Lopez approached her in a physically threatening manner,
“[m]y back was to her” (Hare Dep. at 61), and “I didn't see
her ....“ (Hare Dep. at 58). According to Plaintiff, Officer Ruiz
“stopped the whole incident” before any assault could take
place. (Hare Dep. at 57).
It is undisputed that there was no actual assault, and Plaintiff's
evidence, viewed most favorably to her, establishes nothing
more than verbal abuse. As the Court held in Aziz Zarif
Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y, 1998):
[V]erbal harassment or profanity alone, “unaccompanied
by any injury, no matter how inappropriate, unprofessional,
or reprehensible it might seem,” does not constitute the
violation of any federally protected right and therefore
is not actionable under 42 U.S.C. § 1983. Del Carpio
v. Walker, No. 95 Civ. 1502(RSP) (GJD), 1997 WL
642543, at * 6 (N.D.N.Y. Oct. 15, 1997) (citing
Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986)
(per curiam); Brown v. Croce, 967 F.Supp. 101, 104
(S.D.N.Y.1997)); see Ramirez v. Holmes, 921 F.Supp.
204, 210 (S.D.N.Y.1996); Alnutt v. Cleary, 913 F.Supp.
160, 165–66 (W.D.N.Y.1996); Jermosen v. Coughlin, 878
F.Supp. 444, 449 (N.D.N.Y.1995) ( “Although indefensible
and unprofessional, verbal threats or abuse are not
sufficient to state a constitutional violation cognizable
under § 1983.”); Beal v. City of New York, No. 92 Civ.
0718(KMW), 1994 WL 163954, at *6 (S.D.N.Y. Apr. 22,
1994), aff'd, 89 F.3d 826, 1995 WL 722263 (2d Cir.1995);
Hurdle v. Ackerhalt, No. 92–CV–1673, 1993 WL 71370,
at *1–2 (N.D.N.Y. Mar. 8, 1993) (allegations of threats
and harassment do not rise to the level of a Constitutional
violation).
Plaintiff's claim fails because she does not allege that she
suffered any physical injury. See Bouknight v. Shaw, No.
08 Civ. 5187, 2009 WL 969932, at *3 (S.D.N.Y. Apr. 6,
2009) (“Verbal harassment and name calling, absent physical
injury, are not constitutional violations cognizable under §
1983.”) (citing Purcell, 790 F.2d at 265). See also Thompson
v. Carter, 284 F.3d 411, 418 (2d Cir.2002) (“We agree with
the majority of our sister circuits that [42 U.S.C. § ] 1997e(e)
applies to claims in which a plaintiff alleges constitutional
violations so that the plaintiff cannot recover damages for
mental or emotional injury for a constitutional violation in
the absence of a showing of actual physical injury.”) Rather,
Plaintiff contends that she suffered only “mental anguish” as
a consequence of the Defendants' actions.
*8 “Under certain circumstances, the intentional infliction
of psychological pain may constitute an Eighth Amendment
violation, so long as the pain is not de minimus.” Shabazz,
994 F.Supp. at 475. Plaintiff stated in her deposition that
she was affected by Lopez's conduct particularly because
she was a domestic violence victim and because Lopez
came from a position of trust. (Hare Dep. at 139). However,
Plaintiff admitted during her deposition that, notwithstanding
the availability of mental health services, she never sought
such services, but attained sufficient relief from her distress
by speaking about it with a chaplain. (Hare Dep. at 139–
40). Based on Plaintiff's allegations and record, Plaintiff's
mental pain was de minimus. See Shabazz, 994 F.Supp. at 475
(mental anguish caused by repeated use of racial slurs was de
minimus ); Jermosen v. Coughlin, No. 87 Civ. 6267, 1993 WL
267357, at *6 (S.D.N.Y. July 9, 1993), aff'd, 41 F.3d 1501 (2d
Cir.1994) (de minimus psychological harm when correctional
officers “approached plaintiff with their nightsticks raised in
a threatening position” before conducting a strip frisk).
Plaintiff's Claims for Infringement of Her Religious
Rights are Dismissed
a. The Alleged Removal of Religious Objects from the
Sacristy
Hare's complaint discusses at length the alleged removal of
religious articles from the Catholic sacristy at BHCF, but she
has acknowledges that she did not observe anyone removing
those articles, and that she has no personal knowledge
regarding who is responsible for any such conduct. (Hare
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Dep. at 137; Pl. Opp. Aff. at 7). Lopez, for her part, denies any
involvement in or knowledge of this occurrence. (Lopez Aff.,
¶¶ 14–15). It appears that Plaintiff's only basis for claiming
that Lopez had any involvement in the alleged removal of
the articles in question is her assertion that she was told by
Officer Magoo and through a grapevine of other inmates that
Lopez had authorized other inmates to take this action. (Hare
Dep. at 37; Pl. Opp. Aff. at 9). This hearsay claim is not
corroborated by Officer Magoo; in fact, he has affirmed that
he did not make such a statement to Hare. (Magoo Aff., ¶
4). Likewise, Inmate Rose Ramsey, who allegedly told Lucy
Tuttle, who allegedly told Plaintiff, about Lopez's role in the
removal of articles for the Catholic service has not provided
an affidavit corroborating Plaintiff's contention. Thus, Hare
does not present admissible evidence to support her allegation
that Lopez caused the removal of items from the Catholic
sacristy. See Finnegan v. Board of Educ. of Enlarged City
School Dist. of Troy, 30 F.3d 273, 274 (2d Cir.1994) (hearsay
that would not be admissible at trial cannot be relied upon
in opposition to a motion for summary judgment). Without
establishing Lopez's involvement in the alleged removal of
Catholic items, Plaintiff has not established a claim. As
the Court of Appeals has recognized, “[b]ecause Section
1983 imposes liability only upon those who actually cause
a deprivation of rights, ‘personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.’ “ Blyden v. Mancusi, 186
F.3d 252, 264 (2d Cir.1999) (quoting Wright v. Smith, 21 F.3d
496, 501 (2d Cir.1994)).
*9 Even if Plaintiff had established that Lopez bears
responsibility for the removal of those articles from the
sacristy, the conduct she alleges would not establish any
violation of Hare's personal rights. She does not claim that
any of the articles in question belonged to her, and, in the
absence of specific criteria that Hare does not allege here, a
plaintiff does not have standing to assert the constitutional
rights of others. Camacho v. Brandon, 317 F.3d 153, 159 (2d
Cir.2003) (“A plaintiff may assert the constitutional claims
of a third party if the plaintiff can demonstrate: (1) injury to
the plaintiff, (2) a close relationship between the plaintiff and
the third party that would cause plaintiff to be an effective
advocate for the third party's rights, and (3) ‘some hindrance
to the third party's ability to protect his or her own interests.’
”) (quoting Campbell v. Louisiana, 523 U.S. 392, 397 (1998)).
Cf. Hudson v. Palmer, 468 U.S. 517, 547 n. 13 (1984) (Stevens
J., conc. in part and diss. in part) (“A prisoner's possession
of ... personal property relating to religious observance, such
as a Bible or a crucifix, is surely protected by the Free
Exercise Clause of the First Amendment”). Thus, Hare's
allegations regarding the alleged removal and desecration of
objects from the Catholic sacristy does not give rise to any
genuine dispute regarding facts that would be material to her
§ 1983 action against Lopez.
b. The Alleged Denial of Plaintiff's Right to Practice
Her Religion
Plaintiff alleges that Lopez impermissibly infringed upon her
right to practice religion. She does not allege any involvement
in this deprivation by Hayden or Watson, so this claim is
dismissed as to them.
In her complaint, Plaintiff asserts denial of “the right
to practice Freedom of Religion,” but she does not
specify how this alleged violation of her civil rights
occurred. In her affirmation opposing the summary judgment
motions 4 , Plaintiff contends that Lopez prevented Plaintiff
from continuing her Catholic video group and curtailed
“all Catholic programs, which precluded plaintiff from
participating in them, as they no longer were running.” Pl.
Opp. Aff. at 8. Also, referring to Lopez's alleged verbal
abuse of Plaintiff on August 8, 2011, Plaintiff claims that
“Lopez's actions effectively precluded any operations of
religious programs for Catholic inmates.” Pl. Opp. Aff. at
6. These assertions are insufficient to place into issue facts
that, if resolved in Plaintiff's favor, would entitle her to relief
pursuant to Section § 1983.
To establish a free exercise claim under the First Amendment,
a plaintiff must demonstrate that state action substantially
burdened her observation of a “central religious belief”
without a “compelling government interest” justifying the
burden. Skoros v. City of New York, 437 F.3d 1, 39 (2d
Cir.2006) (quoting Jimmy Swaggart Ministries v. Bd. of
Equalization, 493 U.S. 378, 384–85 (1990)). An inmate's
right to the free exercise of religion is “subject to limitations
that arise both as a consequence of being incarcerated and
from ‘valid penological objectives.’ “ Harris v. Lord, 957
F.Supp. 471, 474 (S.D.N.Y.1997) (quoting O'Lone v. Estate
of Shabazz, 482 U.S. 342 (1987)).
*10 With regard to the alleged curtailment of programs such
as the “Praise Dance” or the video activities that she sought
to organize, Plaintiff does not claim that these programs were
“central or important” to the practice of her religion, an
essential component of a claim that her religious beliefs were
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“substantially burdened.” Ford v. McGinness, 352 F.3d 582,
593–94 (2d Cir.2003).
Hare's claims regarding the “suspension” of Catholic
programs appear to be linked with her role in leading
such programs. Plaintiff's papers and testimony recognize,
however, the Catholic Chaplain, Father O'Shea, retired in
August of 2008. The subsequent temporary suspension of
programs that he had supervised cannot be deemed an
unreasonable infringement on Plaintiff's practice of her
religion, but simply a consequence of the institution's
temporary lack of a Catholic Chaplain. Plaintiff's claim
appears to be premised on her assumption that, even in Father
O'Shea's absence, she should have been permitted to continue
running these programs. (See Hare Dep. at 105 (“Even if I was
not a clerk, I should have been allowed to run the program”)).
However, as discussed above, inmates have no right to any
particular position or assignment at a correctional institution.
See Gill, 824 F.2d at 194.
Plaintiff's claim that Lopez prevented her from attending
Catholic Mass and other religious programming, to the extent
that she asserts it, is not supported by the record and does
not survive summary judgment even when all reasonable
inferences are made in her favor. At her deposition she
testified as follows:
Q. In general, do you recall at any time when you were
trying to go to Catholic mass where you were not allowed
to go?
A. If [Lopez] knew I was in there, then I was harassed. If
she told the officer this Sunday she found out, she would
tell that officer. If that officer was there, then I would be
harrassed.
Q. How were you harassed?
A. Because I was told to leave, I'm not allowed to be there.
Q. How many times, to the best of your recollection, were
you told that you had to leave the Catholic mass?
A. I would say a couple of times. Like I said, I got tired of
being harassed, and I just stopped going.
...
Q. What about programming, were you allowed to go to
Catholic programming?
A. No. Those were during the day. That's when she really
got me. Then on Tuesday night she was there late. She was
there until 8 o'clock at night. That was her late night. She
made sure that the officer knew I was not supposed to be
there.
(Hare Dep. at 106–07).
Plaintiff does not identify the officers involved or specify the
dates on which she was allegedly told to leave the chapel.
Plaintiff also provides no basis for her claim that, when they
allegedly told her to leave, the officers were acting at the
direction of Lopez, and does not claim to have observed
Lopez giving any officer such instructions. Officers Ruiz and
Magoo, who were stationed outside the 112 Chapel during
the period in question, have affirmed that they never received
any such instruction from Lopez. Ruiz Aff. ¶ 3; Magoo Aff. ¶
3. Thus, Plaintiff has not presented any admissible evidence
that would support her claim that Lopez prevented her from
attending Mass or other religious services, and the record
suggests that she was not denied entry to Mass.
*11 Moreover, it is unclear whether being told to leave
the chapel “a couple of times” (Hare Dep. at 107)—even
when the evidence is viewed most favorably to Plaintiff—
rises to the level of a “substantial burden” on Hare's religious
freedom. It is undisputed that Hare's right to free exercise
of religion includes the right to attend religious services.
O'Lone, 482 U.S. 342, 348 (1987). However, that right is
not unlimited or absolute, but is subject to limitations that
arise both as a consequence of being incarcerated and from
“valid penological objectives.” Id. Because Plaintiff provides
no particulars as to the dates and times when she was allegedly
prevented from attending Mass, and does not identify the
officers who allegedly prevented her from doing so, her
claims are too vague to permit the Court to determine both that
the alleged removal actually occurred and, if it did, whether
it was justified by a compelling government interest. See
Skoros, 437 F.3d at 39.
In view of all of these circumstances, the Court concludes
that Hare's claim that her freedom of religion was infringed
is not based on facts that would entitle her to relief pursuant
to § 1983. See Salahuddin v. Coughlin, 781 F.2d 24, 29 (2d
Cir.1986) (summary judgment stage is appropriate juncture
for pro se plaintiffs to make clear the facts that they believe
support their claims, and for a court to grant summary
judgment where the underlying facts are insufficient).
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Plaintiff's Reference to Additional Witnesses Does Not
Merit a Denial of Summary Judgment
Plaintiff claims that Defendants' motions for summary
judgment should be denied on the grounds that two witnesses
have yet to file affidavits. Four months have passed since
Defendants filed their motions for summary judgment,
and Plaintiff has not attempted to submit these additional
affidavits. Furthermore, Plaintiffs' description of what their
witnesses will say demonstrates that they would not rescue
her claims.
Plaintiff contends that Inmate Lucy Tuttle observed Lopez
verbally abuse and physically threaten her in the chapel on
August 18, 2008 and in the subsequent meeting on that
same day (to the extent that these are separate instances). As
was discussed above, Lopez's alleged verbal abuse does not
support a § 1983 claim for cruel and unusual punishment, as
Plaintiff alleges.
Plaintiff also contends that Lieutenant Collins was Sergeant
Collins at BHCF at the time Lopez prevented Plaintiff
from entering her work assignment as Catholic Chaplain's
Clerk, again without specifying when this occurred. Lopez's
alleged refusal to allow Plaintiff to work as Catholic clerk
is insufficient to support § 1983 claim, as Lopez holds
no right to her prison assignment. To the extent that
Collins's affidavit would support Plaintiff's allegation that
Lopez falsely reported her absent from work in retaliation
for the Plaintiff's complaints, Plaintiff has not established
that her complaints motivated the allegedly false reporting.
Furthermore, Plaintiff cannot establish that the adverse action
of her removal from her position as Catholic clerk was caused
by the allegedly false reports, as Hayden cited other valid
reasons for his decision to remove her.
Conclusion
*12 For the reasons stated above, Defendants' motions for
summary judgment are granted.
It is so ordered.
All Citations
Not Reported in F.Supp.2d, 2011 WL 1453789
Footnotes
1 To the extent that Plaintiff's allegations of retaliation are not contained in her complaint, but come from her
deposition testimony and other filings, they are dismissed on this independent ground. Kearney v. County
of Rockland, 373 F.Supp.2d 434,440–41 (S.D.N.Y.2005) (“plaintiff must set forth facts that will allow each
party to tailor its discovery to prepare an appropriate defense. Because a failure to assert a claim until the
last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that it is
inappropriate to raise new claims for the first time in submissions in opposition to summary judgment.”)
2 Plaintiff contends that she did show up for work but was sent away by Lopez. This claim against Lopez is
addressed, infra. Hayden's reliance on Lopez's absence report was reasonable and was a legitimate basis
for Hayden's decision to dismiss Plaintiff.
3 A plaintiff does have a claim “where the fabrication of evidence was motivated by a desire to retaliate for
the inmate's exercise of his substantive constitutional rights.” Franco v. Kelly, 854 F.2d 584, 588–89 (2d
Cir.1988). However, as discussed above, Plaintiff, to the extent she makes such a claim, fails to establish
that Lopez was motivated by Plaintiff's complaints when she filed the allegedly false report.
4 As with her retaliation claims, to the extent that Plaintiff's allegations of infringement on her rights to practice
her religions are not contained in her complaint, but come from her deposition testimony and other filings,
they are dismissed on this independent ground. Kearney, 373 F.Supp.2d at 440–41.
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KeyCite Yellow Flag
Declined to Follow by Lewis v. Hanson, N.D.N.Y., April 9, 2020
2011 WL 1453789
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Susan Lee HARE, Plaintiff,
v.
James HAYDEN et al., Defendants.
No. 09 Civ. 3135(RWS).
|
April 14, 2011.
OPINION
SWEET, District Judge.
*1 Defendants Reverend Maria Lopez (“Lopez”),
Deputy Superintendant James Hayden (“Hayden”), and
Grievance Supervisor Kim Watson (“Watson”) (collectively,
“Defendants”) have filed motions for summary judgment. For
the reasons stated below, these motions are granted.
Prior Proceedings
Plaintiff Susan Lee Hare (“Hare” or “Plaintiff”) filed
her complaint on April 1, 2009, alleging misconduct
by Superintendant Ada Perez, Superintendant Elizabeth
Williams, Hayden, Lopez, and Watson. Defendants Perez,
Williams, Hayden, and Watson answered on September 16,
2009. Defendant Lopez answered on August 31, 2010. On
November 22, 2010, the Court signed off on the stipulated
dismissal of Defendants Perez and Williams.
Defendant Lopez and Defendants Hayden and Watson filed
separate motions for summary judgment on December 13,
2010 and December 14, 2010, respectively. These motions
were heard on submission on January 19, 2011.
Statement of Facta
In August 2008, Plaintiff was programmed as a Catholic
clerk assisting Father O'Shea, the Catholic Chaplain at
Bedford Hills Correctional Facility (“BHCF”). She was
programmed for both the morning and afternoon shifts. See
Deposition of Susan Hare, attached to Declaration of John
Knudsen (“Knudsen Dec”) as Exhibit A (“Hare Dep.”),
at 15. On August 14, 2008, a meeting occurred between
Plaintiff, Father O'Shea, and Hayden. At that meeting, Father
O'Shea recommended that Plaintiff remain the Catholic clerk
after his retirement on August 15, and Hayden agreed that
Plaintiff remain in the position. Affirmation of James Hayden
(“Hayden Aff.”), ¶ 3, attached to Knudsen Dec. as Exhibit C.
Plaintiff then sent a letter dated August 16, 2008 to Hayden in
which she made several allegations against Reverend Lopez,
including that Lopez met with Hare on August 15, that Lopez
ordered the moving of a cabinet with Catholic items, and
that Lopez ordered her clerks to pack up the Catholic items
in the Sacristy into bags and put them out for the trash.
See Hare Letter dated Aug. 18, 2008, attached to Knudsen
Dec. at Exhibit B at Hare 27–31. The underlying theme of
Plaintiff's letter appears to have been that Reverend Lopez
was using her position to defile the Catholic religion. See Id.
at 30 (“the Catholic (sic) have been defiled by this woman
and her community.”) In response to Plaintiff's letter and to
address the allegations, Hayden set up a meeting on August
18, 2008 with Plaintiff, Lopez and two other inmates, Tuttle
and Ramsey. Hayden Aff., ¶ 5.
The August 18 meeting between Plaintiff and Reverend
Lopez was very contentious. Hayden Aff. ¶ 6. During the
meeting, Hayden attempted to verify the allegations made in
Plaintiff's August 16 letter. See Hare 110–11. He could not
substantiate any of Plaintiff's allegations and determined that
they were largely hearsay. Id.; Hayden Aff, ¶ 6. According
to Hayden, Lopez did not attempt to attack Plaintiff during
that meeting. Hayden Aff. ¶ 7; Affirmation of John Ruiz, ¶ 2,
attached to Knudsen Dec as Exhibit D.
*2 Plaintiff contends that on August 18, Lopez verbally
abused and physically threatened her in the chapel. Pl. Opp.
Aff., at 4–7. Plaintiff claims that this interaction led to an
investigation which prevented her from working as Catholic
clerk. Id. at 4. It is unclear whether this interaction was
separate from the August 18, 2008 meeting.
Plaintiff filed a grievance alleging that Reverend Lopez
verbally harassed her during the August 18 meeting. See
Hare 104–105. Hayden notified the Superintendent's Office
of his personal observations during that meeting, which were
incorporated into the Superintendent's response. See Hare
103; Hayden Aff., ¶ 8. Following the August 18 meeting,
Plaintiff did not appear for her program assignment as
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Catholic clerk for two weeks, after which time Reverend
Lopez forwarded a memorandum to counselor Greenfield
on September 2, 2008, requesting that Plaintiff be removed
from her position as Catholic clerk and noting that no new
Catholic clerk should be named until a Catholic Priest had
been hired. See Hare 42. Plaintiff contends that this report
was false and that she showed up for work but was sent away.
Pl. Opp. Aff. at 9. Counselor Greenfield contacted Hayden to
discuss Lopez's request for Plaintiff's removal. Hayden Aff.,
¶ 9. According to Hayden, Plaintiff was removed from her
Catholic clerk position by him on September 8, 2008, at the
latest. Hayden Aff., ¶ 11. Plaintiff contends that she was not
removed until September 15, 2008. Pl. Opp. Aff. at 9.
Hayden claims to have removed Plaintiff from her position
for multiple reasons. Initially, it was reported that plaintiff
failed to report for two weeks for programming after Father
O'Shea retired. Hayden Aff., ¶ 10; Hare 42. Also, Hayden
determined that Plaintiff was being disruptive to the provision
of Catholic services at Bedford Hills. Hayden Aff. ¶ 10.
Hayden had investigated plaintiffs numerous allegations
about Reverend Lopez and her alleged interference with the
Catholic programs and could not substantiate any of them.
Id. For example, Hayden states that Plaintiff was telling
inmates and outside civilians in the Catholic community
that Lopez had the cabinet with Catholic items in it moved,
and had articles removed from the Sacristy. Id. Hayden had
received a call from Deacon Lou Santore, a civilian volunteer,
who had been told these claims by Plaintiff and was upset.
Hayden investigated these claims and determined them to be
inaccurate. Id. Instead, he determined that the cabinet was
moved by a volunteer from the long-term inmate committee,
and that Plaintiff appeared to be the only person with the
combination to the Sacristy. Id.; Affirmation of Kowsillia
Magoo, ¶ 4, attached to Knudsen Dec. as Exhibit E. As part
of his responsibilities as Deputy Superintendent of Programs,
Hayden states that he could not allow inmates to use their
programming position to disrupt the inmate and civilian
volunteer populations. Id.
*3 Additionally, Hayden discussed this issue with all the
other chaplains at the facility, who agreed that Plaintiff should
no longer remain as the Catholic clerk. Hayden Aff., ¶ 11.
This included Sister MaryAnn Collins, who was a part-time
employee at the facility and apparently effectively acted as
head of the Catholic community there. Id. Finally, Hayden
determined that Plaintiff and Reverend Lopez were not able
to work together. Id. Plaintiff drafted a handwritten grievance
complaint on September 4, 2008, in which she complained
that Reverend Lopez was retaliating against her because of
her prior grievance, and asked that she “stop being harassed
and retaliated against by Rev. Lopez.” Hare 40–41. Defendant
Watson responded to that grievance, noting that Plaintiff no
longer worked as a clerk and, thus, Reverend Lopez could no
longer be harassing her. Hare 39. Watson states that this was
an attempt by her to informally resolve Plaintiff's grievance.
Affirmation of Kim Watson (“Watson Aff.”), at ¶ 3, attached
as Exhibit F to Knudsen Dec. Plaintiff did not request to
have the grievance formally processed, but if she had, Watson
claims she would have done so. Id. Plaintiff contends that
she took Watson's response to mean that she could not file a
grievance.
Summary Judgment Standard
Summary judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). In considering a summary judgment
motion, the Court must “view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inference in its favor, and may grant summary judgment only
when no reasonable trier of fact could find in favor of the
nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d
Cir.1995) (internal citations and quotation marks omitted);
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Affidavits submitted in opposition
to summary judgment must be based on personal knowledge
from a competent source, and “set forth such facts as would
be admissible in evidence.” Patterson v. County of Oneida,
375 F.3d 206, 219 (2d Cir.2004) (quoting Fed.R.Civ.P. 56(c)).
Hearsay or other evidence that would be inadmissible at trial
cannot be credited to defeat a summary judgment motion. See
Id. at 219 (“an affidavit's hearsay assertion that would not be
admissible at trial if testified to by the affiant is insufficient
to create a genuine issue for trial.”).
Plaintiff's Retaliation Claims are Dismissed
In order to state a valid retaliation claim, a plaintiff must
allege that her actions were protected by the Constitution,
and that such “conduct was a substantial or motivating factor
for the adverse actions taken by prison officials.” Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir.2003) (internal citations
omitted). There must be a “causal connection between
the protected [conduct] and the adverse action.” Gill v.
Pidlypchak, 389 F,3d 379, 380 (2d Cir.2004) (internal citation
and quotations omitted). “A plaintiff cannot state a retaliation
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claim in wholly conclusory terms, but rather, must provide
a pleading that is ‘supported by specific and detailed factual
allegations.’ “ Anderson v. Lapolt, No. 07 Civ. 1184, 2009
WL 3232418, at *5 (N.D.N.Y. Oct. 1, 2009) (quoting Friedl
v. City of New York, 210 F.3d 79, 85–86 (2d Cir.2000)); see
also Sawyer v. Jowers, No. 08 Civ. 186, 2008 WL 4791557, at
*6 (N.D.Tex. Oct. 31, 2008) (“To state a claim of retaliation,
the inmate must allege more than his personal belief that
he is the victim of retaliation. Conclusory allegations of
retaliation are not sufficient; the plaintiff must produce direct
evidence of motivation or allege a chronology of events
from which retaliation may plausibly be inferred”) (internal
citations omitted); Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir.1995) (if plaintiff's claim of retaliation had been based
on circumstantial evidence alone, and not also supported by
direct evidence of defendant's admission, Court would be
inclined to grant summary judgment); Bussey v. Phillips, 419
F.Supp.2d 569, 585 (S.D.N.Y.2006) (“In order to survive
summary judgment on a retaliation claim, a plaintiff bears
the burden of showing two genuine issues of material fact:
first, that the plaintiff engaged in constitutionally protected
conduct, and, second, that the conduct was a substantial or
motivating factor for the adverse actions taken by prison
officials.”).
*4 Even where a plaintiff meets her burden of establishing
a prima facie retaliation claim, it is still subject to dismissal
if sufficient other non-retaliatory reasons to take the adverse
action were present. See Bussey, 419 F.Supp.2d at 585; Gayle
v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). Furthermore,
inmates have no right, constitutional or otherwise, to any
particular job or assignment within a prison. Gill v. Mooney,
824 F.2d 192, 194 (2d Cir.1987); Hodges v. Jones, 873
F.Supp. 737, 745 (N.D.N.Y.1995) (citing Lane v. Reid, 575
F.Supp. 37, 39 (S.D.N.Y.1983). Inmates can be removed from
prison assignments for virtually any reason, provided that
such decisions are not based on the inmate's race or religion.
Bussey, 419 F.Supp.2d at 589 (S.D.N.Y.2006).
It should be noted that “courts must approach prisoner
claims of retaliation with skepticism and particular care,”
as such claims are “easily fabricated” and run the risk of
“unwarranted judicial intrusion into matters of general prison
administration.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir.2001), overruled on other grounds in Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002). See also Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir.1996) (noting that prisoner
retaliation claims are “ ‘prone to abuse’ because prisoners can
claim retaliation for every decision they dislike.”) (quoting
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)); Colon,
58 F.3d at 872 (“because we recognize both the near
inevitability of decisions and actions by prison officials to
which prisoners will take exception and the ease with which
claims of retaliation may be fabricated, we examine prisoners'
claims of retaliation with skepticism and particular care.”);
Gill, 824 F.2d at 194 (because of the potential for abuse, the
Court of Appeals requires a “higher level of detail in pleading
[retaliation claims]”).
Plaintiff contends that she was removed from her position as
Catholic clerk by Hayden in retaliation for her complaints
against Lopez. 1 There is no dispute that Plaintiff's complaints
against Lopez are protected speech and that her removal
from her position as Catholic clerk was an adverse action;
however, Plaintiff fails to establish the causal link between
her complaints and her dismissal, particularly in light of
legitimate non-discriminatory reasons for her dismissal given
by Hayden.
As a general matter, it is difficult to establish one defendant's
retaliation for complaints against another defendant. See
Wright v. Goord, 554 F.3d 255, 274 (2d Cir.2009) (dismissing
retaliation claim against a corrections officer when only
alleged basis for retaliation was complaint about a prior
incident by another corrections officer). Here, even giving
Plaintiff every reasonable inference, Plaintiff fails to establish
that Hayden had a motive to retaliate arising from her
complaints against Lopez, and that Hayden's retaliatory
motive formed the basis for her dismissal.
*5 To the extent Plaintiff contends that Hayden was
incompetent or covering up Lopez's misconduct, the evidence
before the Court indicates otherwise. Hayden investigated
Plaintiff's claims against Reverend Lopez. The August 18,
2008 meeting between Plaintiff, Hayden and Lopez was
called in order for Hayden to investigate Plaintiffs allegations
in her August 16 letter, see Hayden Aff., ¶ 5, and at that
meeting, Hayden questioned both Plaintiff and Lopez to
determine the veracity of Plaintiff's allegations. See Hare 110–
111; Hare Dep., at 73–74. Plaintiff's subsequent grievance
on August 21 alleged that Lopez mistreated her during the
August 18 meeting, a claim for which there was no need for
Hayden to investigate since he was present for the meeting
and knew what had and had not occurred. See Hayden Aff.,
¶ 8. Finally, there is no evidence to indicate that Hayden was
“covering up” for Lopez, and the record indicates that Hayden
reasonably found Plaintiff's complaints against Lopez to be
meritless. Plaintiff's allegations of a cover up are conclusory
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and are insufficient to meet Plaintiff's burden for a retaliation
claim at the summary judgment stage. See Graham, 89 F.3d
at 79.
Even if the Court were persuaded that there was a causal
connection between Plaintiff's complaints against Lopez and
her dismissal for her position as Catholic clerk, Hayden
had valid, non-discriminatory reasons for dismissing her. “A
finding of sufficient permissible reasons to justify state action
is ‘readily drawn in the context of prison administration
where ... prison officials have broad administrative and
discretionary authority.’ “ Graham, 89 F.3d at 79 (quoting
Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994)). Here,
Hayden identified four legitimate reasons for Plaintiff's
removal: (1) she failed to show up for work for 2 weeks 2 ;
(2) her behavior disrupted the overall provision of Catholic
services at Bedford Hills; (3) her removal was recommended
by all the other chaplains, including the part-time chaplain,
Sister MaryAnn Collins; and (4) the inability of Plaintiff and
Lopez to work together. Hayden Aff., ¶¶ 10–11.
Plaintiff's allegations that Lopez independently retaliated
against her, by preventing her from returning to her program
assignment, falsely reporting her absence from her job, and
otherwise acting inappropriately toward her, are belied by
Plaintiff's acknowledgement that Lopez never made any
statement revealing that she engaged in any conduct with
the intent to retaliate against Plaintiff for writing complaint
letters or for any other act by Plaintiff. (Hare Dep. at 135).
Plaintiff can only point to her conclusory assumptions of
Lopez's motive and has failed to adequately substantiate her
claims to survive this motion for summary judgment.
Furthermore, even if Plaintiff did establish that Lopez filed a
false report in retaliation for her complaints, Plaintiff cannot
establish that the adverse action of her dismissal from her
position as Catholic clerk by Hayden arose from that allegedly
false report. As discussed above, Hayden chose to dismiss
Plaintiff for three other legitimate reasons and would have
done so regardless of the report. Hayden Aff., ¶¶ 10–11. See
Graham, 89 F.3d at 79 (quoting Lowrance, 20 F.3d at 535).
Plaintiff's Claim that Lopez Filed a False Misbehavior
Report is Dismissed
*6 To the extent that Plaintiff claims Lopez falsely reported
her absence from work for two weeks, this allegation does
not support a claim. “The Second Circuit has held that the
issuance of false misbehavior reports against an inmate by
corrections officers is insufficient on its own to establish a
denial of due process....” 3 Faison v. Janicki, No. 03 Civ.
6475, 2007 WL 529310, at *4 (W.D.N.Y. Feb. 14, 2007)
(citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997)).
See also Moore v. Casselbeny, 584 F.Supp.2d 580, 582
(W.D.N.Y.2008) (“There is no basis for a constitutional claim
alleging the mere filing of a false report”); Flemings v. Kinney,
No. 02 Civ. 9989, 2004 WL 1672448, at *3 (S.D.N.Y. Jul. 27,
2004) (“[i]t is well settled that ‘a prison inmate has no general
constitutional right to be free from being falsely accused in
a misbehavior report’ ”) (quoting Boddie, 105 F.3d at 862).
Furthermore, the record does not support Plaintiff's assertion
that Lopez's report was false. Officers Ruiz and Magoo both
affirm that they were never instructed by Lopez not to allow
Plaintiff to enter the chapel. Ruiz Aff., ¶ 3; Magoo Aff., ¶ 3.
Lopez denies having falsified the report.
Plaintiff's Claim that She was Unable to File a Grievance
is Dismissed
Plaintiff alleges that she was denied the right to file a
grievance when Watson responded to Plaintiff's September 4,
2008 grievance, which requested that Lopez stop retaliating
against her, by noting that Plaintiff no longer worked as a clerk
and, thus, Reverend Lopez could not retaliate against her. See
Hare 39–41. Watson claims to have sent this memorandum
to Plaintiff in an attempt to informally resolve the grievance,
which is part of Watson's responsibilities, Watson Aff. ¶ 3, but
Plaintiff alleges she understood the memorandum to indicate
that she was not allowed to file a grievance. Watson claims
she would have formally filed the grievance if Plaintiff had
contacted her and requested that it be formally filed. Id.
While there is a dispute of fact as to whether Plaintiff was
allowed to file a grievance, Plaintiff has no constitutionally
protected right to file a grievance, and thus does not have
a cognizable § 1983 claim. See Shell v. Brzezniak, 365
F.Supp.2d 362, 370 (W.D.N.Y.2005) (“[I]nmate grievance
programs created by state law are not required by the
Constitution and consequently allegations that prison officials
violated those procedures does not give rise to a cognizable
§ 1983 claim”) (citing Cancel v. Goord, No. 00 Civ.2042,
2001 WL 303713, *3 (S.D.N.Y. Mar. 29, 2001)); Mastroianni
v. Reilly, 602 F.Supp.2d 425, 437 (E.D.N.Y.2009) (“[T]he
grievance procedure or lack thereof cannot itself form
the basis of a Section 1983 claim because there is no
constitutional right to a grievance mechanism”) (citing Swift
v. Tweddell, 582 F.Supp.2d 437, 445–46 (W.D.N.Y.2008)).
Notably, Defendants do not argue that Plaintiff has failed to
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exhaust her claim of retaliation because this grievance was
not processed through the entire grievance system.
Plaintiff's Claims of Verbal Abuse are Dismissed
*7 Plaintiff accuses Lopez of approaching her on August 18,
2008 “in a menacing way, raising her hands toward plaintiff
from behind in a motion as if to strangle plaintiff” (Pl. Opp.
Aff. at 7) and asserts that Lopez “screamed” at her and
called her a “liar” (Hare Dep. at 57) or otherwise spoke
to her in an abusive manner. While Lopez denies Hare's
allegations regarding her conduct, even when the evidence
concerning them is viewed most favorably to Plaintiff, these
allegations do not support an action pursuant to § 1983. The
Eighth Amendment proscribes the “ ‘unnecessary and wanton
infliction of pain’ “ on prisoners by prison officials. Boddie,
105 F.3d at 861 (quoting Whitley v. Albers, 475 U.S. 312, 319
(1986)). Hare does not claim that any actual physical harm
was caused to her by Lopez, and she acknowledged in her
deposition testimony that, on the occasion when she alleges
Lopez approached her in a physically threatening manner,
“[m]y back was to her” (Hare Dep. at 61), and “I didn't see
her ....“ (Hare Dep. at 58). According to Plaintiff, Officer Ruiz
“stopped the whole incident” before any assault could take
place. (Hare Dep. at 57).
It is undisputed that there was no actual assault, and Plaintiff's
evidence, viewed most favorably to her, establishes nothing
more than verbal abuse. As the Court held in Aziz Zarif
Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y, 1998):
[V]erbal harassment or profanity alone, “unaccompanied
by any injury, no matter how inappropriate, unprofessional,
or reprehensible it might seem,” does not constitute the
violation of any federally protected right and therefore
is not actionable under 42 U.S.C. § 1983. Del Carpio
v. Walker, No. 95 Civ. 1502(RSP) (GJD), 1997 WL
642543, at * 6 (N.D.N.Y. Oct. 15, 1997) (citing
Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986)
(per curiam); Brown v. Croce, 967 F.Supp. 101, 104
(S.D.N.Y.1997)); see Ramirez v. Holmes, 921 F.Supp.
204, 210 (S.D.N.Y.1996); Alnutt v. Cleary, 913 F.Supp.
160, 165–66 (W.D.N.Y.1996); Jermosen v. Coughlin, 878
F.Supp. 444, 449 (N.D.N.Y.1995) ( “Although indefensible
and unprofessional, verbal threats or abuse are not
sufficient to state a constitutional violation cognizable
under § 1983.”); Beal v. City of New York, No. 92 Civ.
0718(KMW), 1994 WL 163954, at *6 (S.D.N.Y. Apr. 22,
1994), aff'd, 89 F.3d 826, 1995 WL 722263 (2d Cir.1995);
Hurdle v. Ackerhalt, No. 92–CV–1673, 1993 WL 71370,
at *1–2 (N.D.N.Y. Mar. 8, 1993) (allegations of threats
and harassment do not rise to the level of a Constitutional
violation).
Plaintiff's claim fails because she does not allege that she
suffered any physical injury. See Bouknight v. Shaw, No.
08 Civ. 5187, 2009 WL 969932, at *3 (S.D.N.Y. Apr. 6,
2009) (“Verbal harassment and name calling, absent physical
injury, are not constitutional violations cognizable under §
1983.”) (citing Purcell, 790 F.2d at 265). See also Thompson
v. Carter, 284 F.3d 411, 418 (2d Cir.2002) (“We agree with
the majority of our sister circuits that [42 U.S.C. § ] 1997e(e)
applies to claims in which a plaintiff alleges constitutional
violations so that the plaintiff cannot recover damages for
mental or emotional injury for a constitutional violation in
the absence of a showing of actual physical injury.”) Rather,
Plaintiff contends that she suffered only “mental anguish” as
a consequence of the Defendants' actions.
*8 “Under certain circumstances, the intentional infliction
of psychological pain may constitute an Eighth Amendment
violation, so long as the pain is not de minimus.” Shabazz,
994 F.Supp. at 475. Plaintiff stated in her deposition that
she was affected by Lopez's conduct particularly because
she was a domestic violence victim and because Lopez
came from a position of trust. (Hare Dep. at 139). However,
Plaintiff admitted during her deposition that, notwithstanding
the availability of mental health services, she never sought
such services, but attained sufficient relief from her distress
by speaking about it with a chaplain. (Hare Dep. at 139–
40). Based on Plaintiff's allegations and record, Plaintiff's
mental pain was de minimus. See Shabazz, 994 F.Supp. at 475
(mental anguish caused by repeated use of racial slurs was de
minimus ); Jermosen v. Coughlin, No. 87 Civ. 6267, 1993 WL
267357, at *6 (S.D.N.Y. July 9, 1993), aff'd, 41 F.3d 1501 (2d
Cir.1994) (de minimus psychological harm when correctional
officers “approached plaintiff with their nightsticks raised in
a threatening position” before conducting a strip frisk).
Plaintiff's Claims for Infringement of Her Religious
Rights are Dismissed
a. The Alleged Removal of Religious Objects from the
Sacristy
Hare's complaint discusses at length the alleged removal of
religious articles from the Catholic sacristy at BHCF, but she
has acknowledges that she did not observe anyone removing
those articles, and that she has no personal knowledge
regarding who is responsible for any such conduct. (Hare
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Dep. at 137; Pl. Opp. Aff. at 7). Lopez, for her part, denies any
involvement in or knowledge of this occurrence. (Lopez Aff.,
¶¶ 14–15). It appears that Plaintiff's only basis for claiming
that Lopez had any involvement in the alleged removal of
the articles in question is her assertion that she was told by
Officer Magoo and through a grapevine of other inmates that
Lopez had authorized other inmates to take this action. (Hare
Dep. at 37; Pl. Opp. Aff. at 9). This hearsay claim is not
corroborated by Officer Magoo; in fact, he has affirmed that
he did not make such a statement to Hare. (Magoo Aff., ¶
4). Likewise, Inmate Rose Ramsey, who allegedly told Lucy
Tuttle, who allegedly told Plaintiff, about Lopez's role in the
removal of articles for the Catholic service has not provided
an affidavit corroborating Plaintiff's contention. Thus, Hare
does not present admissible evidence to support her allegation
that Lopez caused the removal of items from the Catholic
sacristy. See Finnegan v. Board of Educ. of Enlarged City
School Dist. of Troy, 30 F.3d 273, 274 (2d Cir.1994) (hearsay
that would not be admissible at trial cannot be relied upon
in opposition to a motion for summary judgment). Without
establishing Lopez's involvement in the alleged removal of
Catholic items, Plaintiff has not established a claim. As
the Court of Appeals has recognized, “[b]ecause Section
1983 imposes liability only upon those who actually cause
a deprivation of rights, ‘personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.’ “ Blyden v. Mancusi, 186
F.3d 252, 264 (2d Cir.1999) (quoting Wright v. Smith, 21 F.3d
496, 501 (2d Cir.1994)).
*9 Even if Plaintiff had established that Lopez bears
responsibility for the removal of those articles from the
sacristy, the conduct she alleges would not establish any
violation of Hare's personal rights. She does not claim that
any of the articles in question belonged to her, and, in the
absence of specific criteria that Hare does not allege here, a
plaintiff does not have standing to assert the constitutional
rights of others. Camacho v. Brandon, 317 F.3d 153, 159 (2d
Cir.2003) (“A plaintiff may assert the constitutional claims
of a third party if the plaintiff can demonstrate: (1) injury to
the plaintiff, (2) a close relationship between the plaintiff and
the third party that would cause plaintiff to be an effective
advocate for the third party's rights, and (3) ‘some hindrance
to the third party's ability to protect his or her own interests.’
”) (quoting Campbell v. Louisiana, 523 U.S. 392, 397 (1998)).
Cf. Hudson v. Palmer, 468 U.S. 517, 547 n. 13 (1984) (Stevens
J., conc. in part and diss. in part) (“A prisoner's possession
of ... personal property relating to religious observance, such
as a Bible or a crucifix, is surely protected by the Free
Exercise Clause of the First Amendment”). Thus, Hare's
allegations regarding the alleged removal and desecration of
objects from the Catholic sacristy does not give rise to any
genuine dispute regarding facts that would be material to her
§ 1983 action against Lopez.
b. The Alleged Denial of Plaintiff's Right to Practice
Her Religion
Plaintiff alleges that Lopez impermissibly infringed upon her
right to practice religion. She does not allege any involvement
in this deprivation by Hayden or Watson, so this claim is
dismissed as to them.
In her complaint, Plaintiff asserts denial of “the right
to practice Freedom of Religion,” but she does not
specify how this alleged violation of her civil rights
occurred. In her affirmation opposing the summary judgment
motions 4 , Plaintiff contends that Lopez prevented Plaintiff
from continuing her Catholic video group and curtailed
“all Catholic programs, which precluded plaintiff from
participating in them, as they no longer were running.” Pl.
Opp. Aff. at 8. Also, referring to Lopez's alleged verbal
abuse of Plaintiff on August 8, 2011, Plaintiff claims that
“Lopez's actions effectively precluded any operations of
religious programs for Catholic inmates.” Pl. Opp. Aff. at
6. These assertions are insufficient to place into issue facts
that, if resolved in Plaintiff's favor, would entitle her to relief
pursuant to Section § 1983.
To establish a free exercise claim under the First Amendment,
a plaintiff must demonstrate that state action substantially
burdened her observation of a “central religious belief”
without a “compelling government interest” justifying the
burden. Skoros v. City of New York, 437 F.3d 1, 39 (2d
Cir.2006) (quoting Jimmy Swaggart Ministries v. Bd. of
Equalization, 493 U.S. 378, 384–85 (1990)). An inmate's
right to the free exercise of religion is “subject to limitations
that arise both as a consequence of being incarcerated and
from ‘valid penological objectives.’ “ Harris v. Lord, 957
F.Supp. 471, 474 (S.D.N.Y.1997) (quoting O'Lone v. Estate
of Shabazz, 482 U.S. 342 (1987)).
*10 With regard to the alleged curtailment of programs such
as the “Praise Dance” or the video activities that she sought
to organize, Plaintiff does not claim that these programs were
“central or important” to the practice of her religion, an
essential component of a claim that her religious beliefs were
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“substantially burdened.” Ford v. McGinness, 352 F.3d 582,
593–94 (2d Cir.2003).
Hare's claims regarding the “suspension” of Catholic
programs appear to be linked with her role in leading
such programs. Plaintiff's papers and testimony recognize,
however, the Catholic Chaplain, Father O'Shea, retired in
August of 2008. The subsequent temporary suspension of
programs that he had supervised cannot be deemed an
unreasonable infringement on Plaintiff's practice of her
religion, but simply a consequence of the institution's
temporary lack of a Catholic Chaplain. Plaintiff's claim
appears to be premised on her assumption that, even in Father
O'Shea's absence, she should have been permitted to continue
running these programs. (See Hare Dep. at 105 (“Even if I was
not a clerk, I should have been allowed to run the program”)).
However, as discussed above, inmates have no right to any
particular position or assignment at a correctional institution.
See Gill, 824 F.2d at 194.
Plaintiff's claim that Lopez prevented her from attending
Catholic Mass and other religious programming, to the extent
that she asserts it, is not supported by the record and does
not survive summary judgment even when all reasonable
inferences are made in her favor. At her deposition she
testified as follows:
Q. In general, do you recall at any time when you were
trying to go to Catholic mass where you were not allowed
to go?
A. If [Lopez] knew I was in there, then I was harassed. If
she told the officer this Sunday she found out, she would
tell that officer. If that officer was there, then I would be
harrassed.
Q. How were you harassed?
A. Because I was told to leave, I'm not allowed to be there.
Q. How many times, to the best of your recollection, were
you told that you had to leave the Catholic mass?
A. I would say a couple of times. Like I said, I got tired of
being harassed, and I just stopped going.
...
Q. What about programming, were you allowed to go to
Catholic programming?
A. No. Those were during the day. That's when she really
got me. Then on Tuesday night she was there late. She was
there until 8 o'clock at night. That was her late night. She
made sure that the officer knew I was not supposed to be
there.
(Hare Dep. at 106–07).
Plaintiff does not identify the officers involved or specify the
dates on which she was allegedly told to leave the chapel.
Plaintiff also provides no basis for her claim that, when they
allegedly told her to leave, the officers were acting at the
direction of Lopez, and does not claim to have observed
Lopez giving any officer such instructions. Officers Ruiz and
Magoo, who were stationed outside the 112 Chapel during
the period in question, have affirmed that they never received
any such instruction from Lopez. Ruiz Aff. ¶ 3; Magoo Aff. ¶
3. Thus, Plaintiff has not presented any admissible evidence
that would support her claim that Lopez prevented her from
attending Mass or other religious services, and the record
suggests that she was not denied entry to Mass.
*11 Moreover, it is unclear whether being told to leave
the chapel “a couple of times” (Hare Dep. at 107)—even
when the evidence is viewed most favorably to Plaintiff—
rises to the level of a “substantial burden” on Hare's religious
freedom. It is undisputed that Hare's right to free exercise
of religion includes the right to attend religious services.
O'Lone, 482 U.S. 342, 348 (1987). However, that right is
not unlimited or absolute, but is subject to limitations that
arise both as a consequence of being incarcerated and from
“valid penological objectives.” Id. Because Plaintiff provides
no particulars as to the dates and times when she was allegedly
prevented from attending Mass, and does not identify the
officers who allegedly prevented her from doing so, her
claims are too vague to permit the Court to determine both that
the alleged removal actually occurred and, if it did, whether
it was justified by a compelling government interest. See
Skoros, 437 F.3d at 39.
In view of all of these circumstances, the Court concludes
that Hare's claim that her freedom of religion was infringed
is not based on facts that would entitle her to relief pursuant
to § 1983. See Salahuddin v. Coughlin, 781 F.2d 24, 29 (2d
Cir.1986) (summary judgment stage is appropriate juncture
for pro se plaintiffs to make clear the facts that they believe
support their claims, and for a court to grant summary
judgment where the underlying facts are insufficient).
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Plaintiff's Reference to Additional Witnesses Does Not
Merit a Denial of Summary Judgment
Plaintiff claims that Defendants' motions for summary
judgment should be denied on the grounds that two witnesses
have yet to file affidavits. Four months have passed since
Defendants filed their motions for summary judgment,
and Plaintiff has not attempted to submit these additional
affidavits. Furthermore, Plaintiffs' description of what their
witnesses will say demonstrates that they would not rescue
her claims.
Plaintiff contends that Inmate Lucy Tuttle observed Lopez
verbally abuse and physically threaten her in the chapel on
August 18, 2008 and in the subsequent meeting on that
same day (to the extent that these are separate instances). As
was discussed above, Lopez's alleged verbal abuse does not
support a § 1983 claim for cruel and unusual punishment, as
Plaintiff alleges.
Plaintiff also contends that Lieutenant Collins was Sergeant
Collins at BHCF at the time Lopez prevented Plaintiff
from entering her work assignment as Catholic Chaplain's
Clerk, again without specifying when this occurred. Lopez's
alleged refusal to allow Plaintiff to work as Catholic clerk
is insufficient to support § 1983 claim, as Lopez holds
no right to her prison assignment. To the extent that
Collins's affidavit would support Plaintiff's allegation that
Lopez falsely reported her absent from work in retaliation
for the Plaintiff's complaints, Plaintiff has not established
that her complaints motivated the allegedly false reporting.
Furthermore, Plaintiff cannot establish that the adverse action
of her removal from her position as Catholic clerk was caused
by the allegedly false reports, as Hayden cited other valid
reasons for his decision to remove her.
Conclusion
*12 For the reasons stated above, Defendants' motions for
summary judgment are granted.
It is so ordered.
All Citations
Not Reported in F.Supp.2d, 2011 WL 1453789
Footnotes
1 To the extent that Plaintiff's allegations of retaliation are not contained in her complaint, but come from her
deposition testimony and other filings, they are dismissed on this independent ground. Kearney v. County
of Rockland, 373 F.Supp.2d 434,440–41 (S.D.N.Y.2005) (“plaintiff must set forth facts that will allow each
party to tailor its discovery to prepare an appropriate defense. Because a failure to assert a claim until the
last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that it is
inappropriate to raise new claims for the first time in submissions in opposition to summary judgment.”)
2 Plaintiff contends that she did show up for work but was sent away by Lopez. This claim against Lopez is
addressed, infra. Hayden's reliance on Lopez's absence report was reasonable and was a legitimate basis
for Hayden's decision to dismiss Plaintiff.
3 A plaintiff does have a claim “where the fabrication of evidence was motivated by a desire to retaliate for
the inmate's exercise of his substantive constitutional rights.” Franco v. Kelly, 854 F.2d 584, 588–89 (2d
Cir.1988). However, as discussed above, Plaintiff, to the extent she makes such a claim, fails to establish
that Lopez was motivated by Plaintiff's complaints when she filed the allegedly false report.
4 As with her retaliation claims, to the extent that Plaintiff's allegations of infringement on her rights to practice
her religions are not contained in her complaint, but come from her deposition testimony and other filings,
they are dismissed on this independent ground. Kearney, 373 F.Supp.2d at 440–41.
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KeyCite Yellow Flag
Declined to Follow by Lewis v. Hanson, N.D.N.Y., April 9, 2020
2011 WL 1453789
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Susan Lee HARE, Plaintiff,
v.
James HAYDEN et al., Defendants.
No. 09 Civ. 3135(RWS).
|
April 14, 2011.
OPINION
SWEET, District Judge.
*1 Defendants Reverend Maria Lopez (“Lopez”),
Deputy Superintendant James Hayden (“Hayden”), and
Grievance Supervisor Kim Watson (“Watson”) (collectively,
“Defendants”) have filed motions for summary judgment. For
the reasons stated below, these motions are granted.
Prior Proceedings
Plaintiff Susan Lee Hare (“Hare” or “Plaintiff”) filed
her complaint on April 1, 2009, alleging misconduct
by Superintendant Ada Perez, Superintendant Elizabeth
Williams, Hayden, Lopez, and Watson. Defendants Perez,
Williams, Hayden, and Watson answered on September 16,
2009. Defendant Lopez answered on August 31, 2010. On
November 22, 2010, the Court signed off on the stipulated
dismissal of Defendants Perez and Williams.
Defendant Lopez and Defendants Hayden and Watson filed
separate motions for summary judgment on December 13,
2010 and December 14, 2010, respectively. These motions
were heard on submission on January 19, 2011.
Statement of Facta
In August 2008, Plaintiff was programmed as a Catholic
clerk assisting Father O'Shea, the Catholic Chaplain at
Bedford Hills Correctional Facility (“BHCF”). She was
programmed for both the morning and afternoon shifts. See
Deposition of Susan Hare, attached to Declaration of John
Knudsen (“Knudsen Dec”) as Exhibit A (“Hare Dep.”),
at 15. On August 14, 2008, a meeting occurred between
Plaintiff, Father O'Shea, and Hayden. At that meeting, Father
O'Shea recommended that Plaintiff remain the Catholic clerk
after his retirement on August 15, and Hayden agreed that
Plaintiff remain in the position. Affirmation of James Hayden
(“Hayden Aff.”), ¶ 3, attached to Knudsen Dec. as Exhibit C.
Plaintiff then sent a letter dated August 16, 2008 to Hayden in
which she made several allegations against Reverend Lopez,
including that Lopez met with Hare on August 15, that Lopez
ordered the moving of a cabinet with Catholic items, and
that Lopez ordered her clerks to pack up the Catholic items
in the Sacristy into bags and put them out for the trash.
See Hare Letter dated Aug. 18, 2008, attached to Knudsen
Dec. at Exhibit B at Hare 27–31. The underlying theme of
Plaintiff's letter appears to have been that Reverend Lopez
was using her position to defile the Catholic religion. See Id.
at 30 (“the Catholic (sic) have been defiled by this woman
and her community.”) In response to Plaintiff's letter and to
address the allegations, Hayden set up a meeting on August
18, 2008 with Plaintiff, Lopez and two other inmates, Tuttle
and Ramsey. Hayden Aff., ¶ 5.
The August 18 meeting between Plaintiff and Reverend
Lopez was very contentious. Hayden Aff. ¶ 6. During the
meeting, Hayden attempted to verify the allegations made in
Plaintiff's August 16 letter. See Hare 110–11. He could not
substantiate any of Plaintiff's allegations and determined that
they were largely hearsay. Id.; Hayden Aff, ¶ 6. According
to Hayden, Lopez did not attempt to attack Plaintiff during
that meeting. Hayden Aff. ¶ 7; Affirmation of John Ruiz, ¶ 2,
attached to Knudsen Dec as Exhibit D.
*2 Plaintiff contends that on August 18, Lopez verbally
abused and physically threatened her in the chapel. Pl. Opp.
Aff., at 4–7. Plaintiff claims that this interaction led to an
investigation which prevented her from working as Catholic
clerk. Id. at 4. It is unclear whether this interaction was
separate from the August 18, 2008 meeting.
Plaintiff filed a grievance alleging that Reverend Lopez
verbally harassed her during the August 18 meeting. See
Hare 104–105. Hayden notified the Superintendent's Office
of his personal observations during that meeting, which were
incorporated into the Superintendent's response. See Hare
103; Hayden Aff., ¶ 8. Following the August 18 meeting,
Plaintiff did not appear for her program assignment as
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Catholic clerk for two weeks, after which time Reverend
Lopez forwarded a memorandum to counselor Greenfield
on September 2, 2008, requesting that Plaintiff be removed
from her position as Catholic clerk and noting that no new
Catholic clerk should be named until a Catholic Priest had
been hired. See Hare 42. Plaintiff contends that this report
was false and that she showed up for work but was sent away.
Pl. Opp. Aff. at 9. Counselor Greenfield contacted Hayden to
discuss Lopez's request for Plaintiff's removal. Hayden Aff.,
¶ 9. According to Hayden, Plaintiff was removed from her
Catholic clerk position by him on September 8, 2008, at the
latest. Hayden Aff., ¶ 11. Plaintiff contends that she was not
removed until September 15, 2008. Pl. Opp. Aff. at 9.
Hayden claims to have removed Plaintiff from her position
for multiple reasons. Initially, it was reported that plaintiff
failed to report for two weeks for programming after Father
O'Shea retired. Hayden Aff., ¶ 10; Hare 42. Also, Hayden
determined that Plaintiff was being disruptive to the provision
of Catholic services at Bedford Hills. Hayden Aff. ¶ 10.
Hayden had investigated plaintiffs numerous allegations
about Reverend Lopez and her alleged interference with the
Catholic programs and could not substantiate any of them.
Id. For example, Hayden states that Plaintiff was telling
inmates and outside civilians in the Catholic community
that Lopez had the cabinet with Catholic items in it moved,
and had articles removed from the Sacristy. Id. Hayden had
received a call from Deacon Lou Santore, a civilian volunteer,
who had been told these claims by Plaintiff and was upset.
Hayden investigated these claims and determined them to be
inaccurate. Id. Instead, he determined that the cabinet was
moved by a volunteer from the long-term inmate committee,
and that Plaintiff appeared to be the only person with the
combination to the Sacristy. Id.; Affirmation of Kowsillia
Magoo, ¶ 4, attached to Knudsen Dec. as Exhibit E. As part
of his responsibilities as Deputy Superintendent of Programs,
Hayden states that he could not allow inmates to use their
programming position to disrupt the inmate and civilian
volunteer populations. Id.
*3 Additionally, Hayden discussed this issue with all the
other chaplains at the facility, who agreed that Plaintiff should
no longer remain as the Catholic clerk. Hayden Aff., ¶ 11.
This included Sister MaryAnn Collins, who was a part-time
employee at the facility and apparently effectively acted as
head of the Catholic community there. Id. Finally, Hayden
determined that Plaintiff and Reverend Lopez were not able
to work together. Id. Plaintiff drafted a handwritten grievance
complaint on September 4, 2008, in which she complained
that Reverend Lopez was retaliating against her because of
her prior grievance, and asked that she “stop being harassed
and retaliated against by Rev. Lopez.” Hare 40–41. Defendant
Watson responded to that grievance, noting that Plaintiff no
longer worked as a clerk and, thus, Reverend Lopez could no
longer be harassing her. Hare 39. Watson states that this was
an attempt by her to informally resolve Plaintiff's grievance.
Affirmation of Kim Watson (“Watson Aff.”), at ¶ 3, attached
as Exhibit F to Knudsen Dec. Plaintiff did not request to
have the grievance formally processed, but if she had, Watson
claims she would have done so. Id. Plaintiff contends that
she took Watson's response to mean that she could not file a
grievance.
Summary Judgment Standard
Summary judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). In considering a summary judgment
motion, the Court must “view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inference in its favor, and may grant summary judgment only
when no reasonable trier of fact could find in favor of the
nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d
Cir.1995) (internal citations and quotation marks omitted);
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Affidavits submitted in opposition
to summary judgment must be based on personal knowledge
from a competent source, and “set forth such facts as would
be admissible in evidence.” Patterson v. County of Oneida,
375 F.3d 206, 219 (2d Cir.2004) (quoting Fed.R.Civ.P. 56(c)).
Hearsay or other evidence that would be inadmissible at trial
cannot be credited to defeat a summary judgment motion. See
Id. at 219 (“an affidavit's hearsay assertion that would not be
admissible at trial if testified to by the affiant is insufficient
to create a genuine issue for trial.”).
Plaintiff's Retaliation Claims are Dismissed
In order to state a valid retaliation claim, a plaintiff must
allege that her actions were protected by the Constitution,
and that such “conduct was a substantial or motivating factor
for the adverse actions taken by prison officials.” Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir.2003) (internal citations
omitted). There must be a “causal connection between
the protected [conduct] and the adverse action.” Gill v.
Pidlypchak, 389 F,3d 379, 380 (2d Cir.2004) (internal citation
and quotations omitted). “A plaintiff cannot state a retaliation
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claim in wholly conclusory terms, but rather, must provide
a pleading that is ‘supported by specific and detailed factual
allegations.’ “ Anderson v. Lapolt, No. 07 Civ. 1184, 2009
WL 3232418, at *5 (N.D.N.Y. Oct. 1, 2009) (quoting Friedl
v. City of New York, 210 F.3d 79, 85–86 (2d Cir.2000)); see
also Sawyer v. Jowers, No. 08 Civ. 186, 2008 WL 4791557, at
*6 (N.D.Tex. Oct. 31, 2008) (“To state a claim of retaliation,
the inmate must allege more than his personal belief that
he is the victim of retaliation. Conclusory allegations of
retaliation are not sufficient; the plaintiff must produce direct
evidence of motivation or allege a chronology of events
from which retaliation may plausibly be inferred”) (internal
citations omitted); Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir.1995) (if plaintiff's claim of retaliation had been based
on circumstantial evidence alone, and not also supported by
direct evidence of defendant's admission, Court would be
inclined to grant summary judgment); Bussey v. Phillips, 419
F.Supp.2d 569, 585 (S.D.N.Y.2006) (“In order to survive
summary judgment on a retaliation claim, a plaintiff bears
the burden of showing two genuine issues of material fact:
first, that the plaintiff engaged in constitutionally protected
conduct, and, second, that the conduct was a substantial or
motivating factor for the adverse actions taken by prison
officials.”).
*4 Even where a plaintiff meets her burden of establishing
a prima facie retaliation claim, it is still subject to dismissal
if sufficient other non-retaliatory reasons to take the adverse
action were present. See Bussey, 419 F.Supp.2d at 585; Gayle
v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). Furthermore,
inmates have no right, constitutional or otherwise, to any
particular job or assignment within a prison. Gill v. Mooney,
824 F.2d 192, 194 (2d Cir.1987); Hodges v. Jones, 873
F.Supp. 737, 745 (N.D.N.Y.1995) (citing Lane v. Reid, 575
F.Supp. 37, 39 (S.D.N.Y.1983). Inmates can be removed from
prison assignments for virtually any reason, provided that
such decisions are not based on the inmate's race or religion.
Bussey, 419 F.Supp.2d at 589 (S.D.N.Y.2006).
It should be noted that “courts must approach prisoner
claims of retaliation with skepticism and particular care,”
as such claims are “easily fabricated” and run the risk of
“unwarranted judicial intrusion into matters of general prison
administration.” Dawes v. Walker, 239 F.3d 489, 491 (2d
Cir.2001), overruled on other grounds in Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002). See also Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir.1996) (noting that prisoner
retaliation claims are “ ‘prone to abuse’ because prisoners can
claim retaliation for every decision they dislike.”) (quoting
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)); Colon,
58 F.3d at 872 (“because we recognize both the near
inevitability of decisions and actions by prison officials to
which prisoners will take exception and the ease with which
claims of retaliation may be fabricated, we examine prisoners'
claims of retaliation with skepticism and particular care.”);
Gill, 824 F.2d at 194 (because of the potential for abuse, the
Court of Appeals requires a “higher level of detail in pleading
[retaliation claims]”).
Plaintiff contends that she was removed from her position as
Catholic clerk by Hayden in retaliation for her complaints
against Lopez. 1 There is no dispute that Plaintiff's complaints
against Lopez are protected speech and that her removal
from her position as Catholic clerk was an adverse action;
however, Plaintiff fails to establish the causal link between
her complaints and her dismissal, particularly in light of
legitimate non-discriminatory reasons for her dismissal given
by Hayden.
As a general matter, it is difficult to establish one defendant's
retaliation for complaints against another defendant. See
Wright v. Goord, 554 F.3d 255, 274 (2d Cir.2009) (dismissing
retaliation claim against a corrections officer when only
alleged basis for retaliation was complaint about a prior
incident by another corrections officer). Here, even giving
Plaintiff every reasonable inference, Plaintiff fails to establish
that Hayden had a motive to retaliate arising from her
complaints against Lopez, and that Hayden's retaliatory
motive formed the basis for her dismissal.
*5 To the extent Plaintiff contends that Hayden was
incompetent or covering up Lopez's misconduct, the evidence
before the Court indicates otherwise. Hayden investigated
Plaintiff's claims against Reverend Lopez. The August 18,
2008 meeting between Plaintiff, Hayden and Lopez was
called in order for Hayden to investigate Plaintiffs allegations
in her August 16 letter, see Hayden Aff., ¶ 5, and at that
meeting, Hayden questioned both Plaintiff and Lopez to
determine the veracity of Plaintiff's allegations. See Hare 110–
111; Hare Dep., at 73–74. Plaintiff's subsequent grievance
on August 21 alleged that Lopez mistreated her during the
August 18 meeting, a claim for which there was no need for
Hayden to investigate since he was present for the meeting
and knew what had and had not occurred. See Hayden Aff.,
¶ 8. Finally, there is no evidence to indicate that Hayden was
“covering up” for Lopez, and the record indicates that Hayden
reasonably found Plaintiff's complaints against Lopez to be
meritless. Plaintiff's allegations of a cover up are conclusory
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and are insufficient to meet Plaintiff's burden for a retaliation
claim at the summary judgment stage. See Graham, 89 F.3d
at 79.
Even if the Court were persuaded that there was a causal
connection between Plaintiff's complaints against Lopez and
her dismissal for her position as Catholic clerk, Hayden
had valid, non-discriminatory reasons for dismissing her. “A
finding of sufficient permissible reasons to justify state action
is ‘readily drawn in the context of prison administration
where ... prison officials have broad administrative and
discretionary authority.’ “ Graham, 89 F.3d at 79 (quoting
Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir.1994)). Here,
Hayden identified four legitimate reasons for Plaintiff's
removal: (1) she failed to show up for work for 2 weeks 2 ;
(2) her behavior disrupted the overall provision of Catholic
services at Bedford Hills; (3) her removal was recommended
by all the other chaplains, including the part-time chaplain,
Sister MaryAnn Collins; and (4) the inability of Plaintiff and
Lopez to work together. Hayden Aff., ¶¶ 10–11.
Plaintiff's allegations that Lopez independently retaliated
against her, by preventing her from returning to her program
assignment, falsely reporting her absence from her job, and
otherwise acting inappropriately toward her, are belied by
Plaintiff's acknowledgement that Lopez never made any
statement revealing that she engaged in any conduct with
the intent to retaliate against Plaintiff for writing complaint
letters or for any other act by Plaintiff. (Hare Dep. at 135).
Plaintiff can only point to her conclusory assumptions of
Lopez's motive and has failed to adequately substantiate her
claims to survive this motion for summary judgment.
Furthermore, even if Plaintiff did establish that Lopez filed a
false report in retaliation for her complaints, Plaintiff cannot
establish that the adverse action of her dismissal from her
position as Catholic clerk by Hayden arose from that allegedly
false report. As discussed above, Hayden chose to dismiss
Plaintiff for three other legitimate reasons and would have
done so regardless of the report. Hayden Aff., ¶¶ 10–11. See
Graham, 89 F.3d at 79 (quoting Lowrance, 20 F.3d at 535).
Plaintiff's Claim that Lopez Filed a False Misbehavior
Report is Dismissed
*6 To the extent that Plaintiff claims Lopez falsely reported
her absence from work for two weeks, this allegation does
not support a claim. “The Second Circuit has held that the
issuance of false misbehavior reports against an inmate by
corrections officers is insufficient on its own to establish a
denial of due process....” 3 Faison v. Janicki, No. 03 Civ.
6475, 2007 WL 529310, at *4 (W.D.N.Y. Feb. 14, 2007)
(citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997)).
See also Moore v. Casselbeny, 584 F.Supp.2d 580, 582
(W.D.N.Y.2008) (“There is no basis for a constitutional claim
alleging the mere filing of a false report”); Flemings v. Kinney,
No. 02 Civ. 9989, 2004 WL 1672448, at *3 (S.D.N.Y. Jul. 27,
2004) (“[i]t is well settled that ‘a prison inmate has no general
constitutional right to be free from being falsely accused in
a misbehavior report’ ”) (quoting Boddie, 105 F.3d at 862).
Furthermore, the record does not support Plaintiff's assertion
that Lopez's report was false. Officers Ruiz and Magoo both
affirm that they were never instructed by Lopez not to allow
Plaintiff to enter the chapel. Ruiz Aff., ¶ 3; Magoo Aff., ¶ 3.
Lopez denies having falsified the report.
Plaintiff's Claim that She was Unable to File a Grievance
is Dismissed
Plaintiff alleges that she was denied the right to file a
grievance when Watson responded to Plaintiff's September 4,
2008 grievance, which requested that Lopez stop retaliating
against her, by noting that Plaintiff no longer worked as a clerk
and, thus, Reverend Lopez could not retaliate against her. See
Hare 39–41. Watson claims to have sent this memorandum
to Plaintiff in an attempt to informally resolve the grievance,
which is part of Watson's responsibilities, Watson Aff. ¶ 3, but
Plaintiff alleges she understood the memorandum to indicate
that she was not allowed to file a grievance. Watson claims
she would have formally filed the grievance if Plaintiff had
contacted her and requested that it be formally filed. Id.
While there is a dispute of fact as to whether Plaintiff was
allowed to file a grievance, Plaintiff has no constitutionally
protected right to file a grievance, and thus does not have
a cognizable § 1983 claim. See Shell v. Brzezniak, 365
F.Supp.2d 362, 370 (W.D.N.Y.2005) (“[I]nmate grievance
programs created by state law are not required by the
Constitution and consequently allegations that prison officials
violated those procedures does not give rise to a cognizable
§ 1983 claim”) (citing Cancel v. Goord, No. 00 Civ.2042,
2001 WL 303713, *3 (S.D.N.Y. Mar. 29, 2001)); Mastroianni
v. Reilly, 602 F.Supp.2d 425, 437 (E.D.N.Y.2009) (“[T]he
grievance procedure or lack thereof cannot itself form
the basis of a Section 1983 claim because there is no
constitutional right to a grievance mechanism”) (citing Swift
v. Tweddell, 582 F.Supp.2d 437, 445–46 (W.D.N.Y.2008)).
Notably, Defendants do not argue that Plaintiff has failed to
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exhaust her claim of retaliation because this grievance was
not processed through the entire grievance system.
Plaintiff's Claims of Verbal Abuse are Dismissed
*7 Plaintiff accuses Lopez of approaching her on August 18,
2008 “in a menacing way, raising her hands toward plaintiff
from behind in a motion as if to strangle plaintiff” (Pl. Opp.
Aff. at 7) and asserts that Lopez “screamed” at her and
called her a “liar” (Hare Dep. at 57) or otherwise spoke
to her in an abusive manner. While Lopez denies Hare's
allegations regarding her conduct, even when the evidence
concerning them is viewed most favorably to Plaintiff, these
allegations do not support an action pursuant to § 1983. The
Eighth Amendment proscribes the “ ‘unnecessary and wanton
infliction of pain’ “ on prisoners by prison officials. Boddie,
105 F.3d at 861 (quoting Whitley v. Albers, 475 U.S. 312, 319
(1986)). Hare does not claim that any actual physical harm
was caused to her by Lopez, and she acknowledged in her
deposition testimony that, on the occasion when she alleges
Lopez approached her in a physically threatening manner,
“[m]y back was to her” (Hare Dep. at 61), and “I didn't see
her ....“ (Hare Dep. at 58). According to Plaintiff, Officer Ruiz
“stopped the whole incident” before any assault could take
place. (Hare Dep. at 57).
It is undisputed that there was no actual assault, and Plaintiff's
evidence, viewed most favorably to her, establishes nothing
more than verbal abuse. As the Court held in Aziz Zarif
Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y, 1998):
[V]erbal harassment or profanity alone, “unaccompanied
by any injury, no matter how inappropriate, unprofessional,
or reprehensible it might seem,” does not constitute the
violation of any federally protected right and therefore
is not actionable under 42 U.S.C. § 1983. Del Carpio
v. Walker, No. 95 Civ. 1502(RSP) (GJD), 1997 WL
642543, at * 6 (N.D.N.Y. Oct. 15, 1997) (citing
Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986)
(per curiam); Brown v. Croce, 967 F.Supp. 101, 104
(S.D.N.Y.1997)); see Ramirez v. Holmes, 921 F.Supp.
204, 210 (S.D.N.Y.1996); Alnutt v. Cleary, 913 F.Supp.
160, 165–66 (W.D.N.Y.1996); Jermosen v. Coughlin, 878
F.Supp. 444, 449 (N.D.N.Y.1995) ( “Although indefensible
and unprofessional, verbal threats or abuse are not
sufficient to state a constitutional violation cognizable
under § 1983.”); Beal v. City of New York, No. 92 Civ.
0718(KMW), 1994 WL 163954, at *6 (S.D.N.Y. Apr. 22,
1994), aff'd, 89 F.3d 826, 1995 WL 722263 (2d Cir.1995);
Hurdle v. Ackerhalt, No. 92–CV–1673, 1993 WL 71370,
at *1–2 (N.D.N.Y. Mar. 8, 1993) (allegations of threats
and harassment do not rise to the level of a Constitutional
violation).
Plaintiff's claim fails because she does not allege that she
suffered any physical injury. See Bouknight v. Shaw, No.
08 Civ. 5187, 2009 WL 969932, at *3 (S.D.N.Y. Apr. 6,
2009) (“Verbal harassment and name calling, absent physical
injury, are not constitutional violations cognizable under §
1983.”) (citing Purcell, 790 F.2d at 265). See also Thompson
v. Carter, 284 F.3d 411, 418 (2d Cir.2002) (“We agree with
the majority of our sister circuits that [42 U.S.C. § ] 1997e(e)
applies to claims in which a plaintiff alleges constitutional
violations so that the plaintiff cannot recover damages for
mental or emotional injury for a constitutional violation in
the absence of a showing of actual physical injury.”) Rather,
Plaintiff contends that she suffered only “mental anguish” as
a consequence of the Defendants' actions.
*8 “Under certain circumstances, the intentional infliction
of psychological pain may constitute an Eighth Amendment
violation, so long as the pain is not de minimus.” Shabazz,
994 F.Supp. at 475. Plaintiff stated in her deposition that
she was affected by Lopez's conduct particularly because
she was a domestic violence victim and because Lopez
came from a position of trust. (Hare Dep. at 139). However,
Plaintiff admitted during her deposition that, notwithstanding
the availability of mental health services, she never sought
such services, but attained sufficient relief from her distress
by speaking about it with a chaplain. (Hare Dep. at 139–
40). Based on Plaintiff's allegations and record, Plaintiff's
mental pain was de minimus. See Shabazz, 994 F.Supp. at 475
(mental anguish caused by repeated use of racial slurs was de
minimus ); Jermosen v. Coughlin, No. 87 Civ. 6267, 1993 WL
267357, at *6 (S.D.N.Y. July 9, 1993), aff'd, 41 F.3d 1501 (2d
Cir.1994) (de minimus psychological harm when correctional
officers “approached plaintiff with their nightsticks raised in
a threatening position” before conducting a strip frisk).
Plaintiff's Claims for Infringement of Her Religious
Rights are Dismissed
a. The Alleged Removal of Religious Objects from the
Sacristy
Hare's complaint discusses at length the alleged removal of
religious articles from the Catholic sacristy at BHCF, but she
has acknowledges that she did not observe anyone removing
those articles, and that she has no personal knowledge
regarding who is responsible for any such conduct. (Hare
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Dep. at 137; Pl. Opp. Aff. at 7). Lopez, for her part, denies any
involvement in or knowledge of this occurrence. (Lopez Aff.,
¶¶ 14–15). It appears that Plaintiff's only basis for claiming
that Lopez had any involvement in the alleged removal of
the articles in question is her assertion that she was told by
Officer Magoo and through a grapevine of other inmates that
Lopez had authorized other inmates to take this action. (Hare
Dep. at 37; Pl. Opp. Aff. at 9). This hearsay claim is not
corroborated by Officer Magoo; in fact, he has affirmed that
he did not make such a statement to Hare. (Magoo Aff., ¶
4). Likewise, Inmate Rose Ramsey, who allegedly told Lucy
Tuttle, who allegedly told Plaintiff, about Lopez's role in the
removal of articles for the Catholic service has not provided
an affidavit corroborating Plaintiff's contention. Thus, Hare
does not present admissible evidence to support her allegation
that Lopez caused the removal of items from the Catholic
sacristy. See Finnegan v. Board of Educ. of Enlarged City
School Dist. of Troy, 30 F.3d 273, 274 (2d Cir.1994) (hearsay
that would not be admissible at trial cannot be relied upon
in opposition to a motion for summary judgment). Without
establishing Lopez's involvement in the alleged removal of
Catholic items, Plaintiff has not established a claim. As
the Court of Appeals has recognized, “[b]ecause Section
1983 imposes liability only upon those who actually cause
a deprivation of rights, ‘personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.’ “ Blyden v. Mancusi, 186
F.3d 252, 264 (2d Cir.1999) (quoting Wright v. Smith, 21 F.3d
496, 501 (2d Cir.1994)).
*9 Even if Plaintiff had established that Lopez bears
responsibility for the removal of those articles from the
sacristy, the conduct she alleges would not establish any
violation of Hare's personal rights. She does not claim that
any of the articles in question belonged to her, and, in the
absence of specific criteria that Hare does not allege here, a
plaintiff does not have standing to assert the constitutional
rights of others. Camacho v. Brandon, 317 F.3d 153, 159 (2d
Cir.2003) (“A plaintiff may assert the constitutional claims
of a third party if the plaintiff can demonstrate: (1) injury to
the plaintiff, (2) a close relationship between the plaintiff and
the third party that would cause plaintiff to be an effective
advocate for the third party's rights, and (3) ‘some hindrance
to the third party's ability to protect his or her own interests.’
”) (quoting Campbell v. Louisiana, 523 U.S. 392, 397 (1998)).
Cf. Hudson v. Palmer, 468 U.S. 517, 547 n. 13 (1984) (Stevens
J., conc. in part and diss. in part) (“A prisoner's possession
of ... personal property relating to religious observance, such
as a Bible or a crucifix, is surely protected by the Free
Exercise Clause of the First Amendment”). Thus, Hare's
allegations regarding the alleged removal and desecration of
objects from the Catholic sacristy does not give rise to any
genuine dispute regarding facts that would be material to her
§ 1983 action against Lopez.
b. The Alleged Denial of Plaintiff's Right to Practice
Her Religion
Plaintiff alleges that Lopez impermissibly infringed upon her
right to practice religion. She does not allege any involvement
in this deprivation by Hayden or Watson, so this claim is
dismissed as to them.
In her complaint, Plaintiff asserts denial of “the right
to practice Freedom of Religion,” but she does not
specify how this alleged violation of her civil rights
occurred. In her affirmation opposing the summary judgment
motions 4 , Plaintiff contends that Lopez prevented Plaintiff
from continuing her Catholic video group and curtailed
“all Catholic programs, which precluded plaintiff from
participating in them, as they no longer were running.” Pl.
Opp. Aff. at 8. Also, referring to Lopez's alleged verbal
abuse of Plaintiff on August 8, 2011, Plaintiff claims that
“Lopez's actions effectively precluded any operations of
religious programs for Catholic inmates.” Pl. Opp. Aff. at
6. These assertions are insufficient to place into issue facts
that, if resolved in Plaintiff's favor, would entitle her to relief
pursuant to Section § 1983.
To establish a free exercise claim under the First Amendment,
a plaintiff must demonstrate that state action substantially
burdened her observation of a “central religious belief”
without a “compelling government interest” justifying the
burden. Skoros v. City of New York, 437 F.3d 1, 39 (2d
Cir.2006) (quoting Jimmy Swaggart Ministries v. Bd. of
Equalization, 493 U.S. 378, 384–85 (1990)). An inmate's
right to the free exercise of religion is “subject to limitations
that arise both as a consequence of being incarcerated and
from ‘valid penological objectives.’ “ Harris v. Lord, 957
F.Supp. 471, 474 (S.D.N.Y.1997) (quoting O'Lone v. Estate
of Shabazz, 482 U.S. 342 (1987)).
*10 With regard to the alleged curtailment of programs such
as the “Praise Dance” or the video activities that she sought
to organize, Plaintiff does not claim that these programs were
“central or important” to the practice of her religion, an
essential component of a claim that her religious beliefs were
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“substantially burdened.” Ford v. McGinness, 352 F.3d 582,
593–94 (2d Cir.2003).
Hare's claims regarding the “suspension” of Catholic
programs appear to be linked with her role in leading
such programs. Plaintiff's papers and testimony recognize,
however, the Catholic Chaplain, Father O'Shea, retired in
August of 2008. The subsequent temporary suspension of
programs that he had supervised cannot be deemed an
unreasonable infringement on Plaintiff's practice of her
religion, but simply a consequence of the institution's
temporary lack of a Catholic Chaplain. Plaintiff's claim
appears to be premised on her assumption that, even in Father
O'Shea's absence, she should have been permitted to continue
running these programs. (See Hare Dep. at 105 (“Even if I was
not a clerk, I should have been allowed to run the program”)).
However, as discussed above, inmates have no right to any
particular position or assignment at a correctional institution.
See Gill, 824 F.2d at 194.
Plaintiff's claim that Lopez prevented her from attending
Catholic Mass and other religious programming, to the extent
that she asserts it, is not supported by the record and does
not survive summary judgment even when all reasonable
inferences are made in her favor. At her deposition she
testified as follows:
Q. In general, do you recall at any time when you were
trying to go to Catholic mass where you were not allowed
to go?
A. If [Lopez] knew I was in there, then I was harassed. If
she told the officer this Sunday she found out, she would
tell that officer. If that officer was there, then I would be
harrassed.
Q. How were you harassed?
A. Because I was told to leave, I'm not allowed to be there.
Q. How many times, to the best of your recollection, were
you told that you had to leave the Catholic mass?
A. I would say a couple of times. Like I said, I got tired of
being harassed, and I just stopped going.
...
Q. What about programming, were you allowed to go to
Catholic programming?
A. No. Those were during the day. That's when she really
got me. Then on Tuesday night she was there late. She was
there until 8 o'clock at night. That was her late night. She
made sure that the officer knew I was not supposed to be
there.
(Hare Dep. at 106–07).
Plaintiff does not identify the officers involved or specify the
dates on which she was allegedly told to leave the chapel.
Plaintiff also provides no basis for her claim that, when they
allegedly told her to leave, the officers were acting at the
direction of Lopez, and does not claim to have observed
Lopez giving any officer such instructions. Officers Ruiz and
Magoo, who were stationed outside the 112 Chapel during
the period in question, have affirmed that they never received
any such instruction from Lopez. Ruiz Aff. ¶ 3; Magoo Aff. ¶
3. Thus, Plaintiff has not presented any admissible evidence
that would support her claim that Lopez prevented her from
attending Mass or other religious services, and the record
suggests that she was not denied entry to Mass.
*11 Moreover, it is unclear whether being told to leave
the chapel “a couple of times” (Hare Dep. at 107)—even
when the evidence is viewed most favorably to Plaintiff—
rises to the level of a “substantial burden” on Hare's religious
freedom. It is undisputed that Hare's right to free exercise
of religion includes the right to attend religious services.
O'Lone, 482 U.S. 342, 348 (1987). However, that right is
not unlimited or absolute, but is subject to limitations that
arise both as a consequence of being incarcerated and from
“valid penological objectives.” Id. Because Plaintiff provides
no particulars as to the dates and times when she was allegedly
prevented from attending Mass, and does not identify the
officers who allegedly prevented her from doing so, her
claims are too vague to permit the Court to determine both that
the alleged removal actually occurred and, if it did, whether
it was justified by a compelling government interest. See
Skoros, 437 F.3d at 39.
In view of all of these circumstances, the Court concludes
that Hare's claim that her freedom of religion was infringed
is not based on facts that would entitle her to relief pursuant
to § 1983. See Salahuddin v. Coughlin, 781 F.2d 24, 29 (2d
Cir.1986) (summary judgment stage is appropriate juncture
for pro se plaintiffs to make clear the facts that they believe
support their claims, and for a court to grant summary
judgment where the underlying facts are insufficient).
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Plaintiff's Reference to Additional Witnesses Does Not
Merit a Denial of Summary Judgment
Plaintiff claims that Defendants' motions for summary
judgment should be denied on the grounds that two witnesses
have yet to file affidavits. Four months have passed since
Defendants filed their motions for summary judgment,
and Plaintiff has not attempted to submit these additional
affidavits. Furthermore, Plaintiffs' description of what their
witnesses will say demonstrates that they would not rescue
her claims.
Plaintiff contends that Inmate Lucy Tuttle observed Lopez
verbally abuse and physically threaten her in the chapel on
August 18, 2008 and in the subsequent meeting on that
same day (to the extent that these are separate instances). As
was discussed above, Lopez's alleged verbal abuse does not
support a § 1983 claim for cruel and unusual punishment, as
Plaintiff alleges.
Plaintiff also contends that Lieutenant Collins was Sergeant
Collins at BHCF at the time Lopez prevented Plaintiff
from entering her work assignment as Catholic Chaplain's
Clerk, again without specifying when this occurred. Lopez's
alleged refusal to allow Plaintiff to work as Catholic clerk
is insufficient to support § 1983 claim, as Lopez holds
no right to her prison assignment. To the extent that
Collins's affidavit would support Plaintiff's allegation that
Lopez falsely reported her absent from work in retaliation
for the Plaintiff's complaints, Plaintiff has not established
that her complaints motivated the allegedly false reporting.
Furthermore, Plaintiff cannot establish that the adverse action
of her removal from her position as Catholic clerk was caused
by the allegedly false reports, as Hayden cited other valid
reasons for his decision to remove her.
Conclusion
*12 For the reasons stated above, Defendants' motions for
summary judgment are granted.
It is so ordered.
All Citations
Not Reported in F.Supp.2d, 2011 WL 1453789
Footnotes
1 To the extent that Plaintiff's allegations of retaliation are not contained in her complaint, but come from her
deposition testimony and other filings, they are dismissed on this independent ground. Kearney v. County
of Rockland, 373 F.Supp.2d 434,440–41 (S.D.N.Y.2005) (“plaintiff must set forth facts that will allow each
party to tailor its discovery to prepare an appropriate defense. Because a failure to assert a claim until the
last minute will inevitably prejudice the defendant, courts in this District have consistently ruled that it is
inappropriate to raise new claims for the first time in submissions in opposition to summary judgment.”)
2 Plaintiff contends that she did show up for work but was sent away by Lopez. This claim against Lopez is
addressed, infra. Hayden's reliance on Lopez's absence report was reasonable and was a legitimate basis
for Hayden's decision to dismiss Plaintiff.
3 A plaintiff does have a claim “where the fabrication of evidence was motivated by a desire to retaliate for
the inmate's exercise of his substantive constitutional rights.” Franco v. Kelly, 854 F.2d 584, 588–89 (2d
Cir.1988). However, as discussed above, Plaintiff, to the extent she makes such a claim, fails to establish
that Lopez was motivated by Plaintiff's complaints when she filed the allegedly false report.
4 As with her retaliation claims, to the extent that Plaintiff's allegations of infringement on her rights to practice
her religions are not contained in her complaint, but come from her deposition testimony and other filings,
they are dismissed on this independent ground. Kearney, 373 F.Supp.2d at 440–41.
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2024 WL 4882774
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Silvio R. ILLESCAS, Plaintiff,
v.
Anthony ANNUCI, Vassar Brothers Medical
Center, Dr. Daniel E. Laurie, Dar Sajin A. Pillai,
Dr. Jesse Wolstein, Dr. Hector I. Ojeda-Martinez,
Sehrish Shahid, Dr. Robert U. Mmerole, Defendants.
21-cv-8473 (NSR)
|
Signed November 25, 2024
Attorneys and Law Firms
Silvo R. Illescas, Coxsackie, NY, Pro Se.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge:
*1 Pro se Plaintiff Silvio R. Illescas (“Plaintiff”) initiated
this action on October 13, 2021, alleging deprivation
of rights under 42 U.S.C. § 1983 (“Section 1983”)
claiming violations of the Eighth Amendment and Fourteenth
Amendment, as well as Article I, § 5 of the New
York State Constitution, against Defendant Vassar Brothers
Medical Center (“Vassar Brothers”), Defendant Doctor
Daniel E. Laurie (“Laurie”), care physician provider,
Defendant Doctor Sajin A. Pillai (“Pillai”), medical doctor
provider, Defendant Doctor Hector I. Ojeda-Martinez
(“Ojeda-Martinez”), medical doctor provider, Sehrish Shahid
(“Shahid”), physician provider, Defendant Doctor Robert U.
Mmereole (“Mmereole”), medical doctor provider, (together,
“Vassar Defendants”), Defendant Anthony J. Annucci
(“Annucci”), acting commissioner of the New York State
Department of Corrections and Community Supervision
(“DOCCS”), and Defendant Doctor Jesse M. Wolstein
(“Wolstein”), primary care physician provider.
Presently before the Court are Vassar Defendants, Annucci
and Wolstein's Motions to Dismiss Plaintiff's claims as against
them pursuant to Federal Rules of Civil Procedure 12(b)
(1) and (6). For the following reasons, the motions are
GRANTED.
BACKGROUND
The following facts are derived from the Second Amended
Complaint (“Am. Compl.”) and are taken as true and
constructed in the light most favorable to the Plaintiff at this
stage.
Plaintiff is an inmate at Green Haven Correctional Facility.
(Am. Compl. p. 3.) On April 9, 2020, at around 3:00 AM,
Plaintiff was awakened from his sleep and ordered to prepare
himself for a trip to “an outside hospital.” (Am. Compl. ¶
1.) At that point, the Empire State Ambulance Corp was
in the lobby awaiting Plaintiff. (Am. Compl. ¶ 3.) Plaintiff
was then transported to Vassar Brothers Medical Center,
arriving at 4:05 AM. (Am. Compl. ¶ 7.) At 4:29 AM,
Dr. Bruce Gendron performed “an XR chest on Plaintiff's
chest” and diagnosed Plaintiff with “bilateral lower lung
infiltrates.” (Am. Compl. ¶ 9.) Dr. Jesse M. Wolstein was
the primary care physician provider and diagnosed Plaintiff
with “[a]cute hypoxemic respiratory failure, Covid-19 virus
infection, and pneumonia.” (Am. Compl. ¶ 10.) Dr. Hector I.
Ojeda-Martinez further diagnosed Plaintiff with “[a]bnormal
liver enzymes and elevate[d] troponin.” (Am. Compl. ¶ 11.)
Dr. Robert U. Mmerole diagnosed Plaintiff with “[c]ough
and ... non-ST elevated myocardial infarction.” (Am. Compl.
¶ 12.) Nurse Caroline M. Devlin and Amber Funk also
diagnosed Plaintiff with shortness of breath. (Am. Compl. ¶
13.)
After performing an assessment of Plaintiff, Wolstein
prescribed Plaintiff with a series of medication, and,
thereafter, Plaintiff was “transported to an isolated room to
begin with Covid-19 regimen test-trial.” (Am. Compl. ¶¶
17-19.) Plaintiff states that no member of Vassar Brothers
Medical Center “warned him [of] the potential serious side
effects” of his medication regiment. (Am. Compl. ¶ 20.) That
same day at approximately 1:00 PM, Plaintiff was told by
an “unknown doctor with face mask” that he had a fifty
percent chance of survival. (Am. Compl. ¶ 21.) This caused
the Plaintiff to panic, thinking he was going to die because he
did not ask the purposes of the medication he was prescribed.
(Am. Compl. ¶ 22.)
*2 Based on the foregoing, Plaintiff brings Section 1983
claims alleging violations of the Eighth Amendment.
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PROCEDURAL HISTORY
On October 13, 2021, Plaintiff commenced this action against
the Defendants in his Complaint. (ECF No. 1). On December
7, 2022, the Court issued an Opinion and Order dismissing
the Complaint's claims in its entirety, granting Plaintiff leave
to file an Amended Complaint. (ECF No. 95). Then, on
July 31, 2023, Plaintiff filed his First Amended Complaint
(ECF No. 117). Finally, on November 15, 2023, Plaintiff
filed his Second Amended Complaint (“Am. Compl”) (ECF
No. 149). The Second Amended Complaint is the operative
Complaint. On May 13, 2024, Annucci filed his motion to
dismiss and his memorandum of law in support (“Annucci
Motion”) (ECF Nos. 177 and 178), Wolstein filed his motion
to dismiss, memorandum of law in support, and reply
affirmation in support of his motion (“Wolstein Motion”)
(ECF Nos. 180, 181 and 204), and Vassar Defendants filed
their motion to dismiss and memorandum of law in support
(“Vassar Motion”) (ECF Nos. 182 and 183). On August 2,
2024, Plaintiff filed oppositions to Annucci, Wolstein, and
Vassar Defendants' respective motions to dismiss (ECF Nos.
196 and 197, “196 Opposition” or “196 Opp.” and “197
Opposition” or “197 Opp.”, respectively.) On September 10,
2024, Annucci filed a reply in support of his motion to dismiss
(“Annucci Reply”) (ECF No. 206), Wolstein filed a reply in
support of his motion to dismiss (“Wolstein Reply”) (ECF
No. 205), and Vassar Defendants filed a reply in support
of their motion to dismiss (“Vassar Reply”) (ECF No. 207).
Finally, on September 25, 2024, Plaintiff filed an additional
opposition to the Defendants' respective oppositions (ECF
No. 208, “208 Opposition” or “208 Opp.”)
LEGAL STANDARD
A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”)
provides in relevant part, that a case is properly dismissed
for lack of subject matter jurisdiction when the district court
lacks the statutory or constitutional power to adjudicate it.
When resolving a Rule 12(b)(1) motion for lack of lack of
subject matter jurisdiction, the court may refer to evidence
outside the pleadings. See Kamen v. American Tel. & Tel. Co.,
791 F.2d 1006, 1011 (2d Cir.1986). Plaintiff bears the burden
of demonstrating by a preponderance of the evidence that
subject matter jurisdiction exists. See Malik v. Meissner, 82
F.3d 560, 562 (2d Cir.1996).
B. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), dismissal
is proper unless the complaint “contain[s] 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)). When there are well-pled factual
allegations in the complaint, “a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679. While the Court
must take all material factual allegations as true and draw
reasonable inferences in the non-moving party's favor, the
Court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” or to credit “mere conclusory
statements” or “[t]hreadbare recitals of the elements of a cause
of action.” Id. at 678 (quoting Twombly, 550 U.S. at 555). The
Second Circuit “deem[s] a complaint to include any written
instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference ... and documents
that plaintiffs either possessed or knew about and upon which
they relied in bringing the suit.” Rotham v. Gregor, 220
F.3d 81, 88 (2d Cir. 2000) (internal citations omitted). The
critical inquiry is whether the Plaintiff has pled sufficient
facts to nudge the claims “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. A motion to dismiss
will be denied where the allegations “allow[ ] the court to
draw the reasonable inference that the Defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
C. Section 1983
*3 Section 1983 provides, in relevant part, that “[e]very
person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws shall be liable to the party
injured.” Section 1983 “is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution
and federal statutes that it describes.” Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979); see Patterson v. County of
Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To assert a claim
under Section 1983, a plaintiff must allege “(1) the challenged
conduct was attributable to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff of
a right guaranteed by the U.S. Constitution.” Castilla v. City
of New York, No. 09-CV-5446(SHS), 2013 WL 1803896, at
*2 (S.D.N.Y. April 25, 2013); see Cornejo v. Bell, 592 F.3d
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121, 127 (2d Cir. 2010). Therefore, a Section 1983 claim has
two essential elements: (1) the defendant acted under color
of state law, and (2) as a result of the defendant's actions, the
plaintiff suffered a denial of his federal statutory rights, or
his constitutional rights or privileges. See Annis v. County
of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Quinn v.
Nassau Cty. Police Dep't, 53 F. Supp. 2d 347, 354 (E.D.N.Y.
1999) (Section 1983 “furnishes a cause of action for the
violation of federal rights created by the Constitution.”)
D. Law-of-the-Case Doctrine
The law-of-the-case doctrine “holds that when a court has
ruled on an issue, that decision should generally be adhered
to by the court in subsequent stages unless cogent and
compelling reasons militate otherwise.” Delville v. Firmenich
Inc., 23 F. Supp. 3d 414, 425 (S.D.N.Y. 2014) (quoting United
States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)).
See also In re Peters, 642 F.3d 381 (2d Cir. 2011) (noting
that while not binding the law-of-the-case doctrine counsels
against a court revisiting prior rulings absent compelling
reasons such as the need to correct a clear error or prevent
manifest injustice); In re Currency Conversion Fee Antitrust
Litig., 264 F.R.D. 100 (S.D.N.Y. 2010) (same).
E. Pro Se Pleading Standard
Where a litigant is pro se, the Court is empowered to consider
“new facts raised in opposition papers to the extent they
are consistent with the complaint, treating the new factual
allegations as amending the original complaint.” Davila v.
Lang, 343 F. Supp. 3d 254, 267 (S.D.N.Y. 2018). A Court
may consider “new claims appearing for the first time in the
briefing if ‘the claims could have been asserted based on the
facts alleged in the complaint.’ ” Vlad-Berindan v.MTA New
York City Transit, No. 14-cv-675, 2014 WL 6982929, at *5
(S.D.N.Y.2014) (citing Rosado v. Herard, No. 12-cv-8943,
2013 WL 6170631, at *3 (S.D.N.Y. 2013)). Courts are to
read a pro se litigant's papers “liberally” and “interpret them
to raise the strongest argument that they suggest.” Burgos v.
Hopkins, 14 F.3d 787, 791 (2d Cir. 1994).
DISCUSSION
Plaintiff brings claims pursuant to § 1983, alleging several
Eighth Amendment violations. The Court addresses them in
turn.
A. Whether Annucci was Sufficiently Involved for
Section 1983’s Personal Involvement Requirement
This Court previously dismissed Plaintiff's Section 1983
claim for failure to demonstrate Annucci's personal
involvement in any alleged deprivation of constitutional
rights. (Doc. No. 95, Op. and Order, 12/7/22, pp. 10-11.)
Plaintiff's Second Amended Complaint and opposition letters
are similarly deficient, offering no further substantive
allegations that would indicate Annucci's involvement in
any purported constitutional violations. Therefore, the law-
of-case doctrine favors dismissing Plaintiff's claim against
Annucci once more.
To restate the relevant standard, in order to bring forward
a Section 1983 claim, a plaintiff must demonstrate each
defendant's personal involvement in the constitutional
deprivation. Black v. Coughlin, 76 F.3d 72, 75 (2d Cir. 1996).
Personal involvement is defined as “direct participation,
or failure to remedy the alleged wrong after learning
of it, or creation of a policy or custom under which
unconstitutional practices occurred, or gross negligence in
managing subordinates.” Id. A defendant “may not be
held liable for damages for constitutional violations merely
because he held a high position of authority.” Id. A defendant
“may not be held responsible unless he was personally
involved in the alleged constitutional violations.” Whitton v.
Williams, 90 F. Supp. 2d 420, 427 (S.D.N.Y. 2000).
*4 The Court finds that Plaintiff has still failed to
allege sufficient personal involvement necessary to state a
Section 1983 claim against Annucci. Except for naming
Annucci as a Defendant (Am. Compl. p. 4), the Second
Amended Complaint does not offer substantive allegations
demonstrating Annucci's involvement in any deprivation of
constitutional rights. Plaintiff's opposition papers similarly
do not offer any substantive allegations that would indicate
Annucci's personal involvement as required to effectuate a
Section 1983 claim. (196 Opp., 197 Opp., and 208 Opp.)
Plaintiff seems to suggest that Annucci received complaints
from Plaintiff (see 208 Opp. p. 4), but “[a]mple Second
Circuit case law makes clear that a Plaintiff does not state
a claim where he alleges only that a supervisory official
received reports of wrongdoing.” Samuels v. Fischer, 168 F.
Supp. 3d 625, 637 (S.D.N.Y. 2016) (citations omitted); see
also Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (holding
that DOCCS Commissioner was not personally involved
simply because Plaintiff wrote complaint letters to him).
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Annucci cannot be held liable solely by virtue of his
title as Acting Commissioner of DOCCS. See Dawson v.
Cnty. of Westchester, 351 F. Supp. 2d 176, 196 (S.D.N.Y.
2004) (noting that a defendant “in a § 1983 action is not
liable simply on the basis of holding a high position of
authority”). Without any further factual averments suggesting
any personal involvement on the part of Annucci, the Second
Amended Complaint remains deficient for the same reasons
articulated in the Court's prior opinion. Therefore, the Second
Amended Complaint, as currently written, has not stated a
plausible Section 1983 claim against Annucci, and the Court
grants Annucci's motion to dismiss Plaintiff's claims without
prejudice.
B. Whether the Vassar Defendants and Wolstein are
State Actors for the Purposes of Section 1983 Liability
The Court previously dismissed Plaintiff's Section 1983 claim
against the Vassar Defendants and Wolstein on the grounds
that they did not qualify as state actors for the purposes of
imposing Section 1983 liability. (Doc. No. 95, Op. and Order,
12/7/22, pp. 6-7.) Plaintiff's Second Amended Complaint and
opposition letters do not offer further substantive allegations
that would justify a finding that the Vassar Defendants and
Wolstein are state actors. As a result, the law-of-case doctrine
counsels against deviating from the Court's prior ruling on the
inapplicability of Section 1983 to the Vassar Defendants and
Wolstein and favors dismissing Plaintiff's Section 1983 claim
against the Vassar Defendants and Wolstein once more.
To reiterate the relevant standard, in order to prosecute a
Section 1983 claim a Plaintiff must demonstrate that he
suffered injury at the hands of a state actor or private party
acting under color of state law. Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 324 (2d Cir. 2002). Importantly, courts in
this circuit have held that “mere conclusory allegation[s]
that a private entity acted in concert with a state actor
does not suffice to state a § 1983 claim against the private
entity.” Id. Three tests are employed to ascertain whether a
private entity's conduct can be considered state action: the
compulsion test, the nexus test, and the public function test.
Wilson v. HSBC Bank, USA, No. 16-CV-8405 (NSR), 2018
WL 1449204, *14 (S.D.N.Y. Mar. 22, 2018).
Plaintiff's Second Amended Complaint details Plaintiff's
experiences with the Vassar Defendants and Wolstein, and his
grievances with his treatment. (Am. Compl. ¶¶ 7-8, 20.) Such
allegations do demonstrate that the Vassar Defendants and
Wolstein were involved in administering care to an inmate.
However, without pleading anything further, Plaintiff cannot
satisfy any of the three state action tests. Plaintiff does not
assert that the Vassar Defendants and Wolstein acted under
any “coercive power or significant encouragement ... that
the[ir] choice[s] must be in law deemed to be that of the
State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). See also
McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014)
(affirming dismissal of § 1983 claim where private entity
was not compelled by state to provide its services). Likewise,
Plaintiff does not demonstrate a sufficient nexus between
the Vassar Defendants, Wolstein and the government, given
that while the Vassar Defendants and Wolstein were treating
an inmate, they were doing so “in the ordinary course of
diagnosis or treating an illness or injury.” Cf Johnson v.
City of New York, 2021 WL 4896477 (S.D.N.Y. Aug. 23,
2021) (finding sufficiently close nexus between hospital
and the government where treatment was administered for
investigatory purposes rather than in the hospital's general
function of treating the public).
*5 As to whether the Vassar Defendants and Wolstein were
performing a public function, the relevant consideration is
whether the conduct at issue is “traditionally the exclusive
prerogative of the State.” Jackson v. Metro. Edison Co., 419
U.S. 345, 353 (1974). State action “may be found in situations
where an activity that traditionally has been the exclusive,
or near exclusive function of the State has been contracted
out to a private entity.” Horvath v. Westport Libr. Ass'n, 362
F.3d 147, 151 (2d Cir. 2004). Here, Plaintiff does not offer
any allegations that the Vassar Defendants and Wolstein were
performing a public function, and it is difficult to envision
the functioning of a private hospital providing care to the
public being construed as an “exclusive or near exclusive
function of the State.” To the contrary, “[a]s a general rule,
private hospitals do not act under color of state law for § 1983
purposes.” Thomas v. Beth Israel Hosp. Inc., 710 F. Supp. 935,
941 (S.D.N.Y. 1989). Courts have reiterated that “[u]nless
certain rare conditions exist, private hospitals ... are not
state actors for purposes of Section 1983.” Amofa v. Bronx-
Lebanon Hosp. Ctr., 2006 WL 3316278 (S.D.N.Y. Nov. 13,
2006). As a result, the Vassar Defendants and Wolstein cannot
be construed to be taking action that is tantamount to state
action. Plaintiff's Second Amended Complaint and opposition
letters therefore fail to demonstrate the Vassar Defendants and
Wolstein's actions should be attributed to the state under any
of the three state action tests.
The only additional further substantive allegations Plaintiff
offers is when Plaintiff writes: “[e]ven though Dr. Wolstein
may not qualify as a state actor” he “certainly qualif[ies] as
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‘private entity,’ who violated plaintiff's federal rights.” (197
Opp., p. 3.) Such an argument only offers a legal conclusion
“couched as a factual allegation.” Iqbal, 556 U.S. 662 at 678.
See Fahie v. Rivera, 2009 WL 2780144, *2 (S.D.N.Y. Aug.
31, 2009) (holding that Plaintiff failed to demonstrate hospital
defendants acted under color of state law when Plaintiff
only offered conclusory assertions that hospital defendants
violated his rights). As acknowledged supra, conclusory
allegations surrounding a private entity's conduct are not
enough demonstrate that that they were a state actor or acting
under the color of law for the purposes of Section 1983
liability. Ciambriello, 292 F.3d 307, 324. Additionally, this
allegation is not enough to carry a Section 1983 claim against
a private entity, as the “color-of-state-law element of § 1983
excludes from its reach merely private conduct, no matter
how discriminatory or unlawful.” Heicklen v. U.S. Dep't of
Homeland Sec., 2011 WL 3841543 (S.D.N.Y. Aug. 30, 2011)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999)). Thus, mere claims of discriminatory conduct on
the part of a private actor are not, without more, enough
to form the basis of a plausible Section 1983 claim. Lastly,
while Wolstein did provide care to an inmate, the Second
Amended Complaint and Plaintiff's opposition letters do not
allege that Wolstein was employed by the government nor that
he was under contract to provide medical care to inmates. As a
general matter, providing care to an inmate does not, without
more, justify imposing Section 1983 liability on a private
party. See Nunez v. Horn, 72 F. Supp. 2d 24, 27 (N.D.N.Y.
1999) (finding that physician was not acting under color of
law where physician was “not employed by the Bureau of
Prisons, nor was he under contract with the state to render
medical services to prison inmates”).
Accordingly, the Court finds that Plaintiff's Second Amended
Complaint and opposition papers remain deficient for reasons
the Court articulated in its prior opinion. The Court therefore
concludes that Plaintiff has not plausibly alleged a viable
Section 1983 claim against the Vassar Defendants and
Wolstein and grants the Vassar Defendants and Wolstein's
respective motions to dismiss Plaintiff's claims without
prejudice.
CONCLUSION
For the foregoing reasons, the Court GRANTS each of
the moving Defendants' motion to dismiss Plaintiff's Eighth
Amendment claims. Specifically, the Court grants Defendant
Jesse M. Wolstein's motion to dismiss, Defendant Anthony
Annucci's motion to dismiss, and Defendants Vassar Brothers
Medical Center, Doctor Daniel E. Laurie, Doctor Sajin A.
Pillai, Doctor Hector I. Ojeda-Martinez, physician provider
Sehrish Shahid and Doctor Robert U. Mmereole's motion to
dismiss.
*6 Pro se Plaintiff is granted leave to file a Third Amended
Complaint (blank form attached hereto) by January 6,
2025. Pro se Plaintiff is advised that the Third Amended
Complaint will replace, not supplement, the Second Amended
Complaint, and so any claims that he wishes to pursue must
be included in the Third Amended Complaint. Should pro
se Plaintiff file a Third Amended Complaint, the Defendants
are directed to answer or otherwise respond by January 30,
2025, and the parties are directed to complete and file a
Case Management Plan and Scheduling Order (blank form
attached) by February 20, 2025. If pro se Plaintiff fails to file
a Third Amended Complaint within the time allowed, those
claims that were dismissed without prejudice shall be deemed
dismissed with prejudice.
Attachment
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All Citations
Slip Copy, 2024 WL 4882774
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Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 285 of 520

Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
© 2025 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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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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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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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 © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Jones v. Fischer, Not Reported in F.Supp.2d (2013)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Johnson v. Naqvi, D.Conn., April 29, 2021
2013 WL 5441353
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Michael JONES, Plaintiff,
v.
Brian FISCHER et al., Defendants.
No. 9:10–cv–1331 (GLS/ATB).
|
Sept. 27, 2013.
Attorneys and Law Firms
Michael Jones, Ossining, NY, pro se.
Hon. Eric T. Schneiderman, New York State Attorney
General, Krista A. Rock, Assistant Attorney General, of
Counsel, Albany, NY, for the Defendants.
MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, Chief Judge.
I. Introduction
*1 Plaintiff pro se Michael Jones commenced this action
against defendants Brian Fischer, Tersea David, David Rock,
K. Rabideau, L. Whalen, Lt. Chase, J. Eggleston, 1 S.
Meskunas, A. Prack, C. Leon, and C.O. Lincon, pursuant to
the First, Eighth, and Fourteenth Amendments of the U.S.
Constitution, 42 U.S.C. § 1983, and the Americans with
Disabilities Act (ADA). (See generally Am. Compl ., Dkt. No.
5.) Jones alleged that defendants violated his rights to proper
medical care, due process, and his right to be free from cruel
and unusual punishment. (Id.)
The remaining defendants, L. Whalen, Lt. Chase, J.
Eggleston, S. Meskunas, A. Prack, and C. Leon, filed a motion
for summary judgment, requesting that the remainder of the
claims and defendants be dismissed. 2 (Dkt. No. 54.) Jones'
remaining claims include: (1) an Eighth Amendment claim
against Leon regarding Jones' medically prescribed diet; and
(2) Due Process and First Amendment retaliation claims
against defendants Eggleston, Meskunas, Prack, Whalen, and
Chase with respect to allegedly false misbehavior reports
and two disciplinary hearings. (Dkt. Nos. 44, 60 at 2.) In a
Report–Recommendation and Order (R & R) dated July 22,
2013, Magistrate Judge Andrew T. Baxter recommended that
defendants' motion be granted and Jones' amended complaint
be dismissed in its entirety as to all defendants. 3 (Dkt. No.
60.) For the reasons that follow, the R & R is adopted in its
entirety.
II. Standard of Review
Before entering final judgment, this court routinely reviews
all report and recommendation orders in cases it has
referred to a magistrate judge. If a party has objected to
specific elements of the magistrate judge's findings and
recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div.
of Parole, No. 04–CV–484, 2006 WL 149049, at *3, *5
(N.D.N.Y. Jan. 18, 2006). In those cases where no party has
filed an objection, only vague or general objections are filed,
or a party resubmits the same papers and arguments already
considered by the magistrate judge, this court reviews the
findings and recommendations of the magistrate judge for
clear error. 4 See id. at *4–5.
III. Discussion
Jones purports to object to the R & R on various grounds,
all of which boil down to arguments he previously raised in
his response to defendants' motion for summary judgment,
(compare Dkt. No. 56, with Dkt. No. 61), and all of which
Judge Baxter considered and rejected.
First, with respect to his Eighth Amendment claim, Jones
objects on the theory that genuine issues of material fact
exist with respect to: (1) what Leon's intentions were when
he removed Jones from his medical diet because (a) it is
unclear whether Leon removed Jones from his medical diet
after having a conversation with another officer, and (b) if
Leon had, in fact, seen Jones exchange food, Leon would
have told Jones, (Dkt. No. 61 at 2–3); (2) whether defendant
Leon had the authority to remove Jones from his diet, (id.
at 3); (3) whether the date of the alleged incident took place
on July 14, 2010, as Jones contends, or on July 15, 2010,
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as defendants contend, (id. at 3–4); and (4) whether removal
from the medical diet caused Jones' blood pressure to rise
to the point that he had to be placed on high blood pressure
medication, (id. at 4). As noted above, however, Jones raised
these arguments in his response to defendants' motion for
summary judgment, and Judge Baxter considered and rejected
them. (Dkt. No. 56 at 4–5; Dkt. No. 60 at 4–19.)
*2 Second, with respect to his due process claim, Jones
objects on the theory that genuine issues of material fact
exist on three grounds: (1) whether the denial of documentary
evidence was a due process violation because he was denied
the opportunity to review copies of all of the handwriting
samples that were used to compare with the handwriting in the
threatening letter, (Dkt. No. 61 at 7–8, 10); (2) whether there
was sufficient evidence to support Eggleston's conclusions in
the Tier III disciplinary hearing because she did not make an
independent determination, (id. at 10); and (3) whether the
special housing unit conditions created an atypical hardship
that constituted an Eighth Amendment violation, (id.). Again,
Jones raised these arguments in his response to defendants'
motion for summary judgment, and Judge Baxter considered
and rejected each of them. (Dkt. No. 56 at 6–9; Dkt. No. 60
at 20–40.)
Finally, with respect to his retaliation claim, Jones objects on
the ground that there is a genuine issue of material fact that
exists as to whether the actions of defendants were taken in
retaliation of Jones' grievances. (Dkt. No. 61 at 11–12.) This
argument, too, was raised in Jones' response to defendants'
motion for summary judgment, and considered and rejected
by Judge Baxter. (Dkt. No. 56 at 9–10; Dkt. No. 60 at 40–45.)
All of Jones' objections, therefore, are general and do not
warrant de novo review. See Almonte, 2006 WL 149049, at
*4. After carefully reviewing the record, the court finds no
clear error in the R & R and adopts it in its entirety.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter's July
22, 2013 Report–Recommendation and Order (Dkt. No. 60)
is ADOPTED in its entirety; and it is further
ORDERED that defendants' motion for summary judgment
(Dkt. No. 54) is GRANTED; and it is further
ORDERED that the amended complaint, (Dkt. No. 5), is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this
Memorandum–Decision and Order to the parties.
IT IS SO ORDERED.
REPORT–RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
This matter was referred to me for Report and
Recommendation by the Honorable Gary L. Sharpe, Chief
United States District Judge, pursuant to 28 U.S.C. § 636(b)
and Local Rules N.D.N.Y. 72.3(c).
I. Background
In his amended civil rights complaint, plaintiff alleged that
defendants violated his rights to proper medical care, due
process, and his right to be free from cruel and unusual
punishment. (Dkt. No. 5). Defendants initially made a motion
to dismiss, based upon their allegation that plaintiff had “three
strikes” pursuant to 28 U.S.C. § 1915(g) and therefore, should
not be entitled to proceed in forma pauperis. (Dkt. No. 32).
The defendants' motion was rendered moot when plaintiff
paid the filing fee on December 1, 2011.
*3 On December 19, 2011, defendants filed a second motion
to dismiss for failure to state a claim, addressed to the merits
of the amended complaint. (Dkt. No. 37). On May 1, 2012,
I recommended granting the motion in part, and on May
23, 2012, Chief Judge Sharpe adopted my recommendation,
dismissing some, but not all of plaintiff's claims. (Dkt.Nos.44,
45). On December 28, 2012, the remaining defendants filed a
motion for summary judgment, pursuant to Fed.R.Civ.P. 56,
addressed to the remainder of the amended complaint. (Dkt.
No. 54). Plaintiff has responded in opposition to the motion,
and defendants filed a reply. (Dkt.Nos.56, 59).
The remaining claims are as follows:
(1) An Eighth Amendment claim regarding plaintiff's
medically prescribed diet against defendant Leon only.
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(2) Due process and First Amendment retaliation claims
with respect to allegedly false misbehavior reports and
two disciplinary hearings against defendants Eggleston,
Meskunas, Prack, Whalen, and Chase.
For the following reasons, this court agrees with defendants
and will recommend dismissal of the entire complaint against
all remaining defendants.
DISCUSSION
II. Summary Judgment
Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56; Salahuddin v. Goord, 467 F.3d 263,
272–73 (2d Cir.2006). “Only disputes over [“material”] facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). It must be apparent that no
rational finder of fact could find in favor of the non-moving
party for a court to grant a motion for summary judgment.
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d
Cir.1994).
The moving party has the burden to show the absence of
disputed material facts by informing the court of portions
of pleadings, depositions, and affidavits which support the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party
satisfies its burden, the nonmoving party must move forward
with specific facts showing that there is a genuine issue for
trial. Salahuddin v. Goord, 467 F.3d at 273. In that context,
the nonmoving party must do more than “simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
However, in determining whether there is a genuine issue
of material fact, a court must resolve all ambiguities, and
draw all inferences, against the movant. See United States v.
Diebold, Inc. ., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d
176 (1962); Salahuddin v. Goord, 467 F.3d at 272.
Although the court briefly discussed the facts in its prior
ReportRecommendation (Dkt. No. 44), additional evidence
has been added to the record, in support of the summary
judgment motion, 1 in the form of affidavits, documents
relating to the claims, and plaintiff's deposition of September
28, 2012. (Dkt. No. 54–1–54–12). Thus, the court will discuss
the additional facts as relevant to the issues raised in the
pending motion.
III. Medical Diet
A. Facts
*4 In the amended complaint, Plaintiff claims that on June
14, 2010, while he was incarcerated at Clinton, defendant
Leon told plaintiff that he was removing plaintiff's name from
the “special diet meal list.” (Amended Complaint (AC) at 6, ¶
(h)). 2 Plaintiff alleges that when he asked why he was being
removed from this list, defendant Leon stated that plaintiff
knew why, and it was because “ ‘I was [sic] you eating
toast.’ “ 3 (Id.) Plaintiff claims that his “special diet” was
low sodium, based upon plaintiff's high blood pressure. As
a result of his removal from the diet, plaintiff states that he
experienced headaches and dizziness. (Id. at 6, ¶ (i)) When
he went to the facility clinic, he was allegedly told that due to
his elevated blood pressure, he would have to be monitored to
determine whether he should be placed on medication. (Id.)
Plaintiff filed a grievance against defendant Leon. (Id. at 6(j)).
During his deposition, plaintiff testified that he was first
placed on a special low sodium diet due to his “above normal”
blood pressure when he was incarcerated at Shawangunk
Correctional Facility. (Pl.'s Dep. at 15) 4 (Dkt. No. 54–9;
Rock Decl. Ex. B). Plaintiff stated that his blood pressure
was not “too high,” and that the special diet helped
“somewhat.” (Id. at 17). Plaintiff was on the special diet
while he was incarcerated at Eastern, Clinton, Upstate, and
Coxsackie Correctional Facilities. (Id. at 18).
The incident with defendant Leon took place while plaintiff
was confined at Clinton Correctional Facility. Plaintiff
testified that defendant Leon was one of the “head cooks”
at the Clinton Annex. On June 14, 2010, plaintiff states that
he came into the mess hall for breakfast, and as he was “on
the line getting close to receiving [his] tray, he saw an officer
speaking to defendant Leon, and pointing at plaintiff. (Id.
at 20, 22). After plaintiff sat down with his tray, defendant
Leon walked over to plaintiff and asked whether his name was
“Jones.” (Id. at 20). Plaintiff acknowledged that he was Jones,
and defendant Leon walked away. (Id.)
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Plaintiff testified that when he came back for the lunch meal,
he went to the diet line to pick up his tray, but was told that he
was no longer on the list for the special diet. Plaintiff stated
that when he asked defendant Leon why, he said “ ‘You know
what you did.’ “ (Id.) Plaintiff testified that he “never could
figure out why he took my name off the diet list.” (Id. at 22).
During the deposition, plaintiff stated that he did not recall
defendant Leon saying anything else. (Id. at 23). According
to plaintiff, the only difference between the special diet and
the regular meal was the sodium content. (Id.)
Plaintiff acknowledged that in order to participate in a special
diet program, he had to sign a “contract,” agreeing to certain
things. (Id. at 24). When asked whether he could “trade food
with other inmates,” plaintiff stated that it depended on the
kind of food, and that although he was allowed to eat bread,
he could not eat bread with butter. (Id.) Plaintiff testified that
he never cheated on the diet, and he never traded food with
any inmates. (Id. at 26).
*5 Plaintiff testified that later on in the day, he became dizzy,
so he sought medical attention by putting himself on the list
for sick call. (Id. at 27). Plaintiff stated that when he told the
nurse about his symptoms, she took his blood pressure and
noticed that it was elevated. (Id. at 28). Plaintiff told the nurse
that he had been removed from the special diet, and the nurse
made plaintiff an appointment to see a doctor. (Id. at 29).
Plaintiff testified that when he saw the doctor, he told plaintiff
that he was going to put him back on the special diet. (Id.)
Plaintiff states that he was off of the diet for about a month.
(Id. at 30). When asked whether he knew the procedure to
put an inmate back on a special diet list, plaintiff stated that it
depended on the “circumstances [of] the removal.” (Id.)
Plaintiff testified that he filed a “basic inmate” grievance
about his removal from the diet, but that he also wrote to
the medical health director in Albany and the Commissioner
of the Department of Corrections and Community Services
(“DOCCS”). (Id .) When asked what he thought defendant
Leon did “wrong,” plaintiff stated that defendant Leon
had no authority to remove me from
the diet, he wasn't a doctor and he's
a cook, so that was outside of his
jurisdiction. The only thing he should
have done was reported me to the
doctor, let them [sic] make a decision
[sic] what they was [sic] going to
do if something occurred that wasn't
supposed to happen.
(Id. at 31). Defense counsel asked plaintiff: “Is that why
you're suing Leon?” Plaintiff answered: “Yes, it is.” (Id.)
When plaintiff was asked if defendant Leon did anything
else to violate plaintiff's constitutional rights, plaintiff stated
that he could not answer the question because he had not
completed discovery. (Id.)
Defendant Leon has filed an affidavit, together with exhibits,
in support of the summary judgment motion. (Dkt. No.
54–4; Leon Aff.) Defendant Leon states that he is the
Head Cook at Clinton and has held that position since
2007, overseeing the preparation and distribution of food for
2,800 inmates, including those inmates who are medically-
ordered therapeutic diets. (Leon Aff. ¶ 2). He is responsible
for ensuring that the appropriate quantities of food are
available to the inmates and for the prevention of waste.
(Id.) Therapeutic diets “generally involve a modification of
servings of food items from the general facility menu.” (Id.
¶ 4).
Inmates who receive a therapeutic diet get their food trays
by going through a separate diet line, and each food tray
is individually prepared for the inmate by a food server in
order to meet the requirements of the particular diet. (Id.
¶ 5). Inmates are required to comply with their therapeutic
diets, and the diets are treated the same as if they were a
prescription for medication. There is also a presumption that
the inmate is eating the appropriate food because the diets are
monitored. If an inmate eats only intermittently, or does not
eat, the tests used to monitor the inmate's condition will not
provide the physician with a correct appraisal of the effect of
the diet on the inmate's condition. (Id. ¶ 6). The failure of an
inmate to follow his diet also creates problems for the food
service personnel, who must serve 2,800 inmates per day,
while maintaining quality and preventing waste. Therapeutic
meals are prepared for individual inmates, pursuant to a
prescription, and if the meals are not eaten, they must be
thrown away. (Id. ¶ 7).
*6 On June 1, 2010, a “Controlled A” diet was ordered for
plaintiff by his doctor. (Leon Aff. ¶ 8 & Ex. A). A “Controlled
A” diet consists of enhanced fiber, low fat, low cholesterol,
and low sodium foods. 5 (Id.) In order to participate in the
diet, plaintiff signed the “Therapeutic Diet Request Form
and Attendance Agreement,” which states that attendance is
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mandatory, his eating would be monitored, and if he did not
comply with the diet, he could be subject to disciplinary action
or removal from the program, “or both.” (Id. ¶ 9 & Ex. A).
The agreement is signed by plaintiff and witnessed by a nurse.
(Id. Ex. A).
The Therapeutic Diet Meal Attendance policy is attached
to defendant Leon's affidavit. (Leon Aff. Ex. B at 17). The
policy states that non-compliance with the meal plan or failure
to participate in three diet meals per week is a violation of
the attendance policy. Violation of the attendance policy can
result in counseling, removal from the diet meal program or
disciplinary action. (Id ). Inmates are expected to accept their
trays and “avoid food swapping.” (Id.) The policy also states
that
Health Services will be notified
in writing by the food service
supervisor when diet meal service has
been discontinued due to attendance
policy violation. Discontinuance of
the therapeutic meals due to
noncompliance should be documented
in the medical record.
(Id.) One of defendant Leon's responsibilities as Head Cook
is to monitor the inmates' compliance with their special
diets. (Leon Aff. ¶ 12). Defendant Leon states that he is
required to report any incidents of non-compliance to his
supervisor, Food Administrator (“FA”) David Timmons. (Id.)
FA Timmons then relays that information to the Director of
Health Services, who ultimately makes the determination of
whether the inmate should be “removed from the diet.” (Id.
¶ 13).
Defendant Leon states that on June 15, 6 2010, he saw
plaintiff exchanging and taking other inmates' “regular” food,
which “constituted non-compliance” with his “therapeutic
diet regimen.” (Leon Aff. ¶ 14). As a result, on the same
day, defendant Leon wrote a note to his supervisor, FA
Timmons, informing him of the plaintiff's violation. (Id. ¶
15 & Ex. C). FA Timmons would then be responsible for
sending the information to the Director of Health Services.
(Id.) Defendant Leon states that the “actual cancellation of
a therapeutic diet can only be approved and effectuated by
the Director of Health Services.” (Id. ¶ 16) (emphasis added).
Sometimes the inmate is “removed” from his special diet,
sometimes he is not. (Id.) Defendant Leon states that in
reporting plaintiff's non-compliance, he was not acting with
any malicious intent or deliberate indifference. (Id. ¶ 18).
FA Timmons 7 has also submitted an affidavit, which
includes the documents generated by plaintiff's grievance
related to this incident. (Timmons Aff. Ex. B; Dkt. No. 54–
10). FA Timmons confirms in his affidavit, that defendant
Leon properly reported plaintiff's non-compliance with the
therapeutic meal plan on the same day that the violation
occurred. (Timmons Aff. ¶ 26 & Ex. C). Plaintiff filed his
grievance on June 17, 2010, two days after the incident. (Id.
Ex. C at 2).
*7 On June 17, 2010, during the grievance investigation,
defendant Leon stated in a memorandum to Nancy Rattlif,
Inmate Grievance Supervisor, that “I saw inmate Jones ...
exchanging and taking other inmates [sic] regular food on
6–15–2010, this puts him on [sic] violation of his diet
contract.” (Id. Ex. C at 7). The Inmate Grievance Resolution
Committee (“IGRC”) responded that the “cook” stated that
plaintiff was observed exchanging and taking other inmates'
regular food “and removed him from diet.” (Id. Ex. C at 9).
The “dissenting” opinion stated that “removing from medical
diet should only be done by medical personnel.” (Id.) Plaintiff
appealed, indicating that he wished to be put back on the
diet, and the Superintendent “granted” plaintiff's request on
July 15, 2010, stating that “[o]nly the medical provider may
remove an inmate from a therapeutic diet.” 8 (Id. Ex. C at 5).
Although it is unclear why a favorable result would be
appealed, plaintiff appealed the Superintendent's decision
to the Central Office Review Committee (“CORC”). 9 The
CORC's decision is dated October 6, 2010, “accepts” the
action requested “in part,” and indicates that it considered
the facts and circumstances of the case, including the
“recommendation of the Division of Health Services.” (Id. at
1). The CORC confirmed that plaintiff was observed trading
food while on the diet “and was appropriately removed
in accordance with the signed contract.” (Id.) Plaintiff was
cautioned to “comply” with the contract in the future to avoid
“similar difficulties.” The CORC found insufficient evidence
to substantiate malfeasance by the staff and noted that plaintiff
had been transferred. (Id.)
In response to defendants' motion for summary judgment,
plaintiff has submitted a variety of medical records, many of
which contain blood pressure measurements, in an attempt to
argue that the removal from his therapeutic diet caused his
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blood pressure to be permanently elevated such that he was
no longer able to control it with diet alone. (Pl.'s Exs. I, J, K,
J–2).
B. Legal Standards
In order to state an Eighth Amendment claim based on
constitutionally inadequate medical treatment, the plaintiff
must allege “acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976). There are two elements to the deliberate
indifference standard. Smith v. Carpenter, 316 F.3d 178, 183–
84 (2d Cir.2003). The first element is objective and measures
the severity of the deprivation, while the second element
is subjective and ensures that the defendant acted with a
sufficiently culpable state of mind. Id. at 184 (citing inter alia
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)).
The objective prong of the standard is satisfied “when (a) the
prisoner was ‘actually deprived of adequate medical care,’
meaning prison officials acted unreasonably in response
to an inmate health risk under the circumstances, and (b)
‘the inadequacy in medical care is sufficiently serious.’ “
Bellotto v. County of Orange, 248 F. App'x 232, 236 (2d
Cir.2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 279–
80 (2d Cir.2006)). If the “unreasonable care” consists of a
failure to provide any treatment, then the court examines
whether the inmate's condition itself is “sufficiently serious.”
Smith v. Carpenter, 316 F.3d 178, 185–86 (2d Cir.2003).
When a prisoner alleges “a temporary delay or interruption
in the provision of otherwise adequate medical treatment,”
the court must focus on the seriousness of the particular
risk of harm that resulted from the challenged delay or
interruption, rather than the prisoner's underlying medical
condition alone.” Id. at 185. The standard for determining
when a deprivation or delay in a prisoner's medical need
is sufficiently serious, contemplates a condition of urgency
that may result in degeneration of the patient's condition or
extreme pain. Bellotto v. County of Orange, 248 F. App'x
at 236 (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir.1998) and Smith v. Carpenter, 316 F.3d at 187 (actual
medical consequences are highly relevant)).
*8 The subjective prong of the deliberate indifference test
is satisfied when an official “knows that inmates face a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994). A plaintiff is not required to show that a defendant
acted or failed to act “for the very purpose of causing harm
or with knowledge that harm will result,” but must show that
the official was aware of facts from which one could infer
that “a substantial risk of serious harm” exists, and that the
official drew that inference. Id. at 835, 837. The defendant
must be subjectively aware that his or her conduct creates the
risk; however, the defendant may introduce proof that he or
she knew the underlying facts, but believed that the risk to
which the facts gave rise was “insubstantial or non-existent.”
Farmer v. Brennan, 511 U.S. at 844. Thus, the court stated
in Salahuddin, that the defendant's believe that his conduct
posed no risk of serious harm “need not be sound so long
as it is sincere,” and “even if objectively unreasonable, a
defendant's mental state may be nonculpable.” Salahuddin,
467 F.3d at 281.
The denial of a medically prescribed diet may, under certain
circumstances, rise to the level of an Eighth Amendment
violation. Abdush–Shahid v. Coughlin, 933 F.Supp. 168, 180
(N.D.N.Y.1996) (citing Robles v. Coughlin, 725 F.2d 12,
15–16 (2d Cir.1983); Mandala v. Coughlin, 920 F.Supp.
342, 353 (E.D.N.Y.1996); Johnson v. Harris, 479 F.Supp.
333, 336–37 (S.D.N.Y.1979)). The objective component
requires the plaintiff to show evidence of some adverse
health impact cause by the discontinuance or failure to
provide the special diet. Hall v. County of Saratoga, No.
1:10–CV–1120, 2013 WL 838284, at *7 (N.D.N.Y. Mar.
6, 2013) (citing Davidson v. Desai, 817 F.Supp.2d 166,
190 (W.D.N.Y.2011)). The subjective, deliberate indifference,
component must be demonstrated by proof that corrections
personnel intentionally denied access to, or interfered with
the prescribed treatment. Abdush–Shahid v. Coughlin, supra.
The plaintiff also has a duty to inform staff that he is not
receiving his medically prescribed diet, and if he fails to do
so, deliberate indifference does not exist. Evans v. Albany
County Correctional Facility, No. 9:05–CV–1400, 2009 WL
1401645, at *9 (N.D.N.Y. May 14, 2009) (citing LaBounty v.
Gomez, No. 94 Civ. 3360, 1998 WL 214774, at *2 (S.D.N.Y.
May 1, 1998)).
C. Application
The plaintiff was prescribed the “Controlled A” diet,
consisting of enhanced fiber, low cholesterol, and low
sodium. It is clear that plaintiff did not receive his therapeutic
diet for approximately one month between June 15 and July
15 of 2010.
Plaintiff signed an agreement that he would not deviate from
the diet and would not miss meals. He was well aware
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that the failure to do so could result in counseling, removal
from the diet, and/or disciplinary action. 10 The evidence
submitted shows that on June 15, 2010, defendant Leon
reported to his supervisor, FA Timmons, in writing, that
plaintiff was in violation of his special meal agreement. The
handwritten note at the bottom of the “Interdepartmental
Communication” form states that “[the] inmate was eating [a]
regular meal.” (Leon Aff. Ex. C). Plaintiff testified that he did
not know why defendant Leon took his name off the list, but
at one point, states that defendant Leon told plaintiff that he
was seen eating toast.
*9 Plaintiff argues that because he was off of his diet for “so
long,” his blood pressure went so high that he could no longer
monitor it with diet, and he had to be prescribed medication.
However, plaintiff sought medical attention from a nurse “the
next day” after his name was taken off the list because he was
allegedly feeling dizzy. Plaintiff stated that when he went to
sick call, “they” could see his blood pressure had gone up.
(Pl.'s Dep. at 27–28). Plaintiff stated that the nurse told him
that she would make an appointment for plaintiff to see his
doctor, and the doctor said that he would put plaintiff back on
the diet. (Id. at 29). Moreover, plaintiff filed a grievance two
days after the incident, which was immediately investigated.
On July 15, 2010, he was placed back on the special diet.
The court notes that July 15, 2010 was the same day that the
Superintendent granted plaintiff's grievance.
Defendant Leon states that he saw plaintiff eating food that
was not on the diet menu and reported the violation to
his supervisor. If plaintiff were already eating foods that
were not authorized on the diet, the fact that defendant
Leon discontinued the diet meals did not affect plaintiff's
health; his own violation of the diet rules was the cause of
any problems. 11 Refusal to comply with proper treatment,
including violations of the diet and the failure to attend meals
according to the contract has been held to be sufficient to
grant summary judgment in the defendant's favor. See e.g.
Abdush–Shahid, 933 F.Supp. at 180 (plaintiff's removal from
the special diet was not deliberate indifference where plaintiff
refused to eat the special meals); Hucks v. Artuz, No. 99 Civ.
10420, 2003 WL 22019744, at *6 (S.D.N.Y. Aug.22, 2003)
(evidence that an inmate refuses to comply with medical
treatment was sufficient for summary judgment); Rivera v.
Goord, 253 F.Supp.2d 735, 756 (S.D.N.Y.2003) (citations
omitted) (same).
There appears to have been no actual cancellation of plaintiff's
special diet, 12 only a temporary discontinuance, apparently
initiated by defendant Leon. 13 FA Timmons states that
the “actual cancellation” of a therapeutic diet can only
be approved and effectuated by the Director of Health
Services.” (Timmons Aff. ¶ 27). Defendant Leon's only
recourse was to report the violation to FA Timmons, which
was done in this case.
There is no question that defendant Leon had no authority
to cancel a diet request, and it is unclear whether he had
the authority to discontinue the meals while cancellation was
being contemplated by the Director of Health Services. 14
The policy itself implies that a diet may be “discontinued,”
pending possible cancellation by Health Services. (Leon Aff.
Ex. B at 17). The policy states that Health Services will be
notified in writing by the food service supervisor “when diet
meal service has been discontinued due to attendance policy
violation.” (Id.) (emphasis added). This sentence implies
that “discontinuance” is different from “cancellation.” The
diet is “discontinued” because of the violation, but then the
medical department is notified and must then decide whether
to “cancel” the therapeutic diet order.
*10 Even assuming that defendant Leon had no authority
to “discontinue” giving plaintiff the special meals, and even
if plaintiff's medical condition had been seriously impacted
by the one-month interruption of his special diet, there
is absolutely no indication that defendant Leon took the
action he did with deliberate indifference to plaintiff's serious
medical needs. The therapeutic meal policy specifically
provides that an inmate may be put back on the program
through the facility sick call procedures. (Timmons Aff. Ex.
B at 17). Defendant Leon knew of the policy, and he sent his
memorandum to defendant Timmons on the same day that the
violation occurred. Thus, defendant Leon acted knowing that
the medical staff would evaluate whether plaintiff needed to
be placed back on the special diet for medical reasons. By
requesting sick call and filing a grievance, plaintiff essentially
asked to be placed back on the special diet within days of
being advised by defendant Leon that plaintiff was no longer
on the list. The length of time that plaintiff ultimately spent
“off” of the diet was not under defendant Leon's control. 15
The court notes that the grievance investigation report implies
that the procedure followed was discussed with “Dr. Johnson”
and ultimately, it appears that plaintiff's grievance was
granted because only medical personnel should be allowed to
even “discontinue” giving inmates the therapeutic diet. 16
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In Collazo v. Pagano, 656 F.3d 131, 135 (2d Cir.2011), the
court granted summary judgment in favor of a defendant who
removed an inmate from the special meal program, finding
that there was nothing in the record to indicate that the
defendant had the requisite intent in either of two instances in
which he asked for the plaintiff's special dietary status to be
revoked. Each time that the defendant asked for a revocation
of the inmate's dietary status, the defendant had determined
that plaintiff had violated the rules of the mess hall or of the
special diet itself. Id. In Collazo, once it was determined that
the plaintiff's violations were the result of a misunderstanding,
the special diet was restored.
Defendant Leon has presented evidence that he reported
plaintiff's violation of the special diet, not to jeopardize
his health, but in an effort to make sure that plaintiff
properly participated in the therapeutic diet program. Plaintiff
admits that he was seen in the medical department the day
after his special diet was discontinued. Plaintiff's special
diet was restored after plaintiff filed a grievance about the
discontinuance. Plaintiff has not submitted any evidence or
facts to rebut the defendant's showing. Therefore, summary
judgment may be granted in favor of defendant Leon on
the Eighth Amendment claim, given the complete lack of
evidence suggesting that he acted with deliberate indifference
to plaintiff's serious medical needs.
IV. Disciplinary Hearings/Retaliation
A. Facts
*11 Defendants have included additional facts about
plaintiff's due process and retaliation claims regarding his two
disciplinary hearings.
1. Threatening Letter
Plaintiff claims that on July 26, 2010, defendant Chase
improperly confined plaintiff in the Special Housing Unit
(“SHU”) and issued a misbehavior report, charging him with
threats, rioting, false statements, and impersonation. (AC ¶
6–s). Defendant Chase has filed an affidavit stating that, as
part of his duties as a Corrections Lieutenant, he investigates
charges of serious misconduct by inmates. (Chase Aff. ¶
5; Dkt. No. 54–2). Lt. Chase states that on July 23, 2010,
he was Acting Captain at Clinton Annex, and one of his
responsibilities was to open all mail addressed to Captain
Holdridge. (Chase Aff. ¶ 8). On that date, defendant Chase
opened a letter that was purportedly from an inmate named
A. Alexander. The letter contained allegations against two
corrections officers, and ended with a threat that the writer and
“other inmates” in his housing unit would “ ‘do all we have to
do to get these officers off the unit.’ “ (Id. ¶ 9). A copy of the
letter is attached to defendant Chase's affidavit as Exhibit A.
Defendant Chase brought the letter to the attention of Housing
Sergeant Giambruno, and they began an investigation with
the help of Corrections Counselor, defendant Laura Whalen.
(Id. ¶ 10). Following an interview with inmate Alexander,
they determined that he did not write the letter. Defendants
then began comparing the handwriting in the letter to
the handwriting of other inmates in the unit, including
plaintiff. Similarities between plaintiff's handwriting and the
handwriting in the letter caused defendants Chase and Whalen
to conclude that plaintiff was the true author of the letter.
Defendant Chase then wrote the misbehavior report and had
plaintiff confined to SHU on July 26, 2010, pending the Tier
III disciplinary hearing. (Chase Aff. ¶¶ 14–15 & Ex. C).
Defendant Chase denies that he took this action in retaliation
for any grievance written by plaintiff. (Id. ¶ 16). Defendant
Chase alleges that the letter raised the possibility of a serious
threat to the safety and security of the facility, and he believed
that the investigation conducted by the officers “conclusively
established” that plaintiff was the author of the letter. (Id.
¶ 17). Defendant Chase states that, at the time he wrote
the misbehavior report, he was not aware that plaintiff filed
grievances against defendant Leon, Officer Lincoln, or any
other individual. (Id. ¶ 19). Defendant Chase states he had
a good faith basis for writing the report, and plaintiff was
ultimately found guilty of the violation. (Id. ¶ 20). Defendant
Chase states that he is not, and has never been, involved with
Clinton's food service program or with plaintiff's special diet
in any way. (Id. ¶ 22).
In his affidavit, defendant Chase also explains the method
by which they determined that plaintiff was the author of the
letter, even though defendant Chase has never taken a course
in handwriting analysis. Defendants Chase and Whalen
compared the handwriting in the letter to the handwriting
of eight porters in plaintiff's housing unit. (Chase Aff. ¶
26). The penmanship of each sample differed sufficiently
so that the samples could not be confused, and there was
no need to distinguish among similar samples. (Id. ¶ 30).
Defendant Whalen was plaintiff's counselor, was familiar
with his handwriting, and concurred with defendant Chase's
analysis. (Id.)
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*12 Defendant Whalen has also filed an affidavit in support
of the summary judgment motion. (Whalen Aff.) (Dkt. No.
54–11). Defendant Whalen states that anonymous or forged
notes are common in the prison environment, and it is often
necessary to identify the authors. (Whalen Aff. ¶ 7). She saves
all correspondence and any other documents that she receives
from inmates, and she has been asked at times to participate
in investigations involving the identification of an inmate's
handwriting. (Id. ¶¶ 7–8).
On July 23, 2010, she was asked to assist defendant Chase and
Lieutenant Giambruno in investigating the letter described
above. Once the defendants determined that Alexander had
not written the letter, they put together a list of porters housed
in the same building for a comparison of their handwriting to
the letter in question. After looking at a sample of plaintiff's
handwriting, defendant Whalen determined that some of
the characteristics in his writing were very similar to the
threatening letter, but that the samples of the handwriting of
other inmates in the unit did not match the letter. (Whalen Aff.
¶¶ 9–14).
The defendants then examined additional samples of
plaintiff's handwriting and concluded that plaintiff was the
true author of the letter. Defendant Whalen states that the
comparison they conducted would not have required an
expert in handwriting analysis, and it was “immediately
obvious” that plaintiff's sample was the only one that bore any
resemblance to the handwriting in the threatening letter. (Id.
¶¶ 15–19). Defendant Whalen has participated in many such
investigation and states that she is confident that defendants
drew the correct conclusion about the author. (Id. ¶ 23).
The disciplinary hearing was held before defendant
Eggleston, who at the time in question, was an Education
Supervisor for DOCCS. 17 She was often asked to conduct
Tier III disciplinary hearings. (Eggleston Aff. ¶ 2). She
held the Tier III disciplinary hearing against plaintiff from
July 29, 2010 through August 5, 2010. A copy of the
transcript of the hearing is attached as Exhibit B to defendant
Eggleston's affidavit. At the conclusion of the hearing,
defendant Eggleston found plaintiff guilty of the charges and
imposed a penalty of 45 days in SHU, plus 45 days from
a previously suspended sanction, and included 90 days loss
of privileges, together with a two month loss of good time.
(Eggleston Aff. ¶ 11 & Ex. A at 1).
Defendant Eggleston states that she did not violate any of
plaintiff's due process rights, she did not conduct an “off-the-
record” conversation about the charges with defendant Chase,
she agreed to show plaintiff the letter that he was accused
of writing and to check on the availability of the letters used
for comparison, but denied as unreasonable, plaintiff's request
that she obtain writing samples from all inmates housed in
plaintiff's unit. (Id. ¶¶ 20–23).
2. Phone Program Violation
*13 Defendant Whalen filed a misbehavior report against
plaintiff, dated July 27, 2010. (Whalen Aff. ¶ 25; Meskunas
Aff. ¶ 4 & Ex. A). 18 The misbehavior report states that
on July 23, 2010, plaintiff was moved from Building 14 to
Building 11–A2, pending an investigation. A review of the
telephone records showed that plaintiff had exchanged his
personal identification number (“PIN”) with another inmate
in Building 14 so that plaintiff could circumvent his keeplock
status. Defendant Whalen states that this was established by
records, showing that four telephone calls were made, using
plaintiff's PIN, to a telephone number listed on his personal
telephone list, belonging to “Anthony Mosley.” These calls
were made after plaintiff was placed on keeplock status and
could not have made the telephone calls. (Whalen Aff. ¶ 25;
Meskunas Aff. ¶ 5 & Ex. A at 4). The misbehavior report
states that plaintiff gave his PIN to another inmate, who used
the number to call Mr. Mosley—on plaintiff's telephone list—
on plaintiff's behalf. Id. Plaintiff was charged with a telephone
program violation, exchanging PINs, and refusing a direct
order. (Meskunas Aff. ¶ 4).
On July 28, 2010, plaintiff met with his employee assistant.
(Meskunas Aff. ¶ 7 & Ex. A at 7). Defendant Meskunas held a
disciplinary hearing between August 2, 2010 and August 10,
2010, and a copy of the transcript of the hearing is attached to
his affidavit as Exhibit B. Defendant Meskunas refused to call
Mr. Mosley as a witness for plaintiff. (Meskunas Aff. Ex. A at
5). The denial was in writing and indicated that the requested
witness could not give relevant evidence because the inmate
who placed the call already testified. (Id. ¶¶ 16–18). At the
conclusion of the hearing, plaintiff was found guilty of two of
the three charges. 19 (Meskunas Aff. Ex. A at 1). Defendant
Meskunas imposed a penalty of two months loss of telephone
and commissary privileges. (Id. ¶ 19 & Ex. A at 1–2). The
determination was affirmed by defendant Prack. (Meskunas
Aff. ¶ 20 & Ex. C).
B. Legal Standard
1. Due Process
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To prevail on a procedural due process claim under section
1983, a plaintiff must show that he possessed a protected
property or liberty interest and that he was deprived of
that interest without being afforded sufficient procedural
safeguards. See Tellier v. Fields, 280 F.3d 69, 79–80 (2d
Cir.2000) (liberty interest); Hynes v. Squillace, 143 F.3d 653,
658 (2d Cir.1998). Due process generally requires that a state
afford individuals “some kind of hearing” prior to depriving
them of a liberty or property interest. DiBlasio v. Novello, 344
F.3d 292, 302 (2d Cir.2003).
In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293,
132 L.Ed.2d 418 (1995), the Supreme Court held that
although states may create liberty interests for inmates that
are protected by due process, “these interests will be generally
limited to freedom from restraint which, while not exceeding
the sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own force ...,
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
The Second Circuit has explicitly avoided a bright line rule
that a certain period of SHU confinement automatically give
rise to due process protection. See Sims v. Artuz, 230 F.3d
14, 23 (2d Cir.2000); Colon v. Howard, 215 F.3d 227, 234
(2d Cir.2000). Instead, cases in this circuit have created
guidelines for use by district courts in determining whether a
prisoner's liberty interest was infringed. Palmer v. Richards,
364 F.3d 60, 64–66 (2d Cir.2004). A confinement longer than
an intermediate one, and under “normal SHU conditions” is “a
sufficient departure from the ordinary incidents of prison life
to require procedural due process protections under Sandin.”
Colon, 215 F.3d at 231 (finding that a prisoner's liberty
interest was infringed by 305–day confinement). Although
shorter confinements under normal SHU conditions may not
implicate a prisoner's liberty interest, SHU confinements of
fewer than 101 days may constitute atypical and significant
hardships if the conditions were more severe than the normal
SHU conditions. Palmer v. Richards, 364 F.3d at 65. In the
absence of a detailed factual record, cases in this circuit
typically affirm dismissal of due process claims in cases
where the period of time spent in SHU was short—e.g., 30
days—and there was no indication that the plaintiff endured
unusual SHU conditions. Id. at 65–66 (collecting cases).
*14 If a liberty interest is found to exist, due process requires
advance notice of the charges against the inmate and a written
statement of reasons for the disposition. Wolff v. McDonnell,
418 U.S. 539, 563–64, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974),
The inmate should also have the ability to call witnesses and
present documentary evidence, subject to legitimate safety
and correctional goals of the institution. Id. at 566. Finally,
the inmate is entitled to a fair and impartial hearing officer,
and the hearing disposition must be supported by “some” or
“a modicum” of evidence. Superintendent v. Hill, 472 U.S.
445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (some
evidence standard); McCann v. Coughlin, 698 F.2d 112,
121–22 (2d Cir.1983) (fair and impartial hearing officer).
Violations of state regulations with respect to disciplinary
hearings do not, by themselves, necessarily rise to the level
of constitutional violations. See Young v. County of Fulton,
160 F.3d 899, 902 (2d Cir.1998) (violation of state law is
not the “benchmark” for determining whether a constitutional
violation has occurred); Soto v. Walker, 44 F.3d 169, 173 (2d
Cir.1995) (state law violation does not necessarily rise to the
level of a constitutional violation). 20
2. Retaliation
In order to establish a claim of retaliation for the exercise
of a First Amendment right, plaintiff must show first, that
he engaged in constitutionally protected speech or conduct,
and second, that the protected activity was a substantial
motivating factor for “adverse action” taken against him by
defendants. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003)
(citing Gayle v. Gonyea, 313 F.3d 677 (2d Cir.2002); see also
Hendricks v. Coughlin, 114 F.3d 390 (2d Cir.1997)). Third,
the plaintiff must establish a causal connection between the
protected speech or conduct and the adverse action. Gill v.
Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004).
There is no question that filing grievances qualifies as a
“constitutionally protected” activity. Graham v. Henderson,
89 F.3d 75, 80 (2d Cir.1996). The Second Circuit has defined
“adverse action” in the prison context as “retaliatory conduct
‘that would deter a similarly situated individual of ordinary
firmness from exercising ... constitutional rights.’ “ Gill v.
Pidlypchak, 389 F.3d at 381 (citation omitted). This objective
test applies even if the plaintiff was not himself subjectively
deterred from exercising his rights. Id.
The court must keep in mind that claims of retaliation
are “easily fabricated” and “pose a substantial risk of
unwarranted judicial intrusion into matters of general
prison administration.” Bennett, 343 F.3d at 137 (citation
omitted). Accordingly, plaintiff must set forth non-conclusory
allegations. Id. Even if plaintiff makes the appropriate
showing, defendants may avoid liability if they demonstrate
that they would have taken the adverse action even in the
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absence of the protected conduct. Id. (citing, inter alia, Mount
Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568,
50 L.Ed.2d 471 (1977)).
C. Application
1. Due Process
a. Threatening Letter
*15 Defendants first argue that plaintiff has failed to
establish a liberty interest and that, in any event, he was
afforded the requisite due process with respect to the
disciplinary hearing. 21 As a sanction for writing the letter
in question, plaintiff received a 45–day term of confinement
in SHU, the reinstatement of a prior suspended 45–day term,
and a two month recommended loss of good time. The period
of SHU confinement was 90 days. Defendant Eggleston also
declined to give plaintiff credit for the time he spent in pre-
hearing confinement from July 26, 2010 until the conclusion
of the hearing. She ruled that his SHU time would begin to
run on the date that the hearing concluded. The extra time
could be considered additional confinement relating to the
charges. Although defendant Eggleston also recommended a
loss of good time, plaintiff is serving a life sentence and is not
entitled to earn good time. (Prack Aff. ¶ 18 & Ex. B). Thus,
the “deprivation” of good time credits did not affect plaintiff's
term of imprisonment, and does not count toward creating a
liberty interest in this case. The only sanction that the court
may consider is the time that plaintiff spent in confinement as
a result of these charges. 22 In his response to the motion for
summary judgment, plaintiff alleges that he spent 106 days in
SHU. (Pl.'s Resp. at 2) (Dkt. No. 56).
As stated above, typically, sanctions of SHU confinement of
less than 101 days do not implicate a liberty interest protected
by due process unless the conditions were more severe
that “normal” SHU conditions. Palmer, supra. There is no
indication in plaintiff's amended complaint that the conditions
in SHU were any more severe than those experienced in
SHU generally. In fact, plaintiff testified at his deposition that
he received one hour per day recreation, got his meals, was
able to have books, was able to have writing materials, and
the same was true for the time he spent in SHU at Upstate
in connection with this charge. (Pl.'s Dep. at 52–53). Thus,
plaintiff did not have a liberty interest that was protected by
due process in his first disciplinary hearing, even if plaintiff
spent a few extra days in SHU, more than the 101 days cited
in the case law. The plaintiff's due process claims could be
dismissed on this basis, however, the court will also consider
the merits.
Even assuming that plaintiff did have a liberty interest, he
received all the process to which he was entitled. He argues
that defendant Eggleston spoke to defendant Chase ex-parte
for seven minutes prior to his testimony at the disciplinary
hearing. In the amended complaint, plaintiff argued that
defendant Eggleston denied him the right to review the eight
samples that were used for comparison and did not make an
independent appraisal of the evidence. Plaintiff claims that
defendants Chase and Whalen are not handwriting experts
and have no basis for finding that plaintiff's handwriting
matched that of the letter. Plaintiff argued that defendant
Eggleston improperly directed that plaintiff's SHU sentence
should run from the conclusion of the hearing, rather than
giving him credit for the time that he served in pre-hearing
confinement. In his response to defendants' motion for
summary judgment, he now argues that defendant Eggleston
violated plaintiff's right to present evidence because she
refused to obtain writing samples from all of the inmates in
the housing unit before finding that the handwriting on the
suspect letter matched plaintiff's handwriting. 23 (Pl.'s Resp.
at 7).
i. Seven Minute Conversation
*16 Defendant Eggleston denies plaintiff's allegations and
states that the transcript of the hearing belies plaintiff's claim
that any off-the-record, ex parte conversations occurred.
(Eggleston Aff. ¶¶ 16–19). A review of the transcript shows
that there is no basis for plaintiff's allegations. During the
hearing, the telephone rang, defendant Eggleston answered,
and she had a conversation with the individual on the other
end. (Eggleston Aff. Ex. B at 25). From the conversation,
it is apparent that the person on the other end of the
telephone was defendant Chase, and at the end of the
conversation, defendant Eggleston stated that “Lieutenant
Chase is coming.” (Id.)
While they were waiting for defendant Chase, defendant
Eggleston and plaintiff discussed obtaining documents.
(Id. at 25–26). Plaintiff complained that he should have
obtained documents at least 24 hours before the hearing, and
complained that he needed the time to prepare a defense.
Defendant Eggleston then asked if plaintiff needed more time,
and he said yes, but that he still would like defendant Chase
to come and testify because plaintiff had some questions. (Id.
at 26). Defendant Eggleston stated “Okay. What we're going
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to do then at this time, I am going to adjourn this hearing,
or stop the tape.” Plaintiff said “Right.” (Id.) The tape was
stopped at 9:45 a.m. “so that [defendant Eggleston could]
evaluate Lieutenant Chase's materials.” Plaintiff agreed, and
defendant Eggleston also stated that she would evaluate what
they could give plaintiff to look at. (Id.) Thus, plaintiff agreed
to stopping the tape recording, and the tape was off until 10:05
a.m. Defendant Chase then testified about his investigation.
(Id. at 27–41).
There is no indication that plaintiff was asked to step out
of the room at any time as he alleges in the amended
complaint. (AC at 9 ¶ u). In any event, if plaintiff was not
present during the alleged conversation, it is unclear how he
would have known that defendant Chase discussed the subject
matter of the investigation with defendant Eggleston. 24 In
her affidavit, defendant Eggleston specifically states that “it
was [her] invariable practice as Hearing Officer never to
have a witness in the hearing room without the inmate being
present.” (Eggleston Aff. ¶ 19). She correctly states that the
transcript shows that, from the time of defendant Chase's
arrival until the conclusion of his testimony, plaintiff was
present. (Id.) (citing Ex. B at 26–41).
Plaintiff was afforded the opportunity to question defendant
Chase about his investigation during the testimony. Defendant
Whalen and Sergeant Giambruno also testified at the hearing.
(Id. at 44–47). Inmate Alexander testified at the hearing
as a witness for plaintiff. (Id. at 50–58). Inmate Alexander
testified that he did not believe that plaintiff wrote the letter
because he always typed his letters. (Id. at 57).
At the end of the hearing, when plaintiff was noting all of his
objections, he objected to the “seven minute conversation”
that defendant Eggleston had with defendant Chase “off
the record” before he testified. (Id. at 82). Defendant
Eggleston stated on the record, that she did not have a
seven minute conversation with defendant Chase, and that
whatever discussion she had with him “had nothing to do
with this investigation.” (Id.) As reflected in the portion
of the transcript referred to in footnote 24 above, the
plaintiff accepted the defendant Whalen's response to his
objection during the hearing. No reasonable fact finder could
credit plaintiff's conclusory allegation regarding an ex parte
communication, given the clearly contradictory evidence in
the record.
ii. Documentary Evidence
*17 Plaintiff claims that his due process rights were
violated because defendant Eggleston refused to produce the
handwriting samples taken from the other porters on the
unit. The court also notes that at the hearing, plaintiff asked
for handwriting samples from all inmates in his housing
unit and samples from other members of the Inmate Liaison
Committee (“ILC”). 25 Plaintiff was given the threatening
letter and the samples of his own handwriting that were used
as a comparison. (Eggleston Aff. Ex. B at 22–23). Defendant
Eggleston stated that plaintiff's samples and the threatening
letter were the only “pertinent” samples, and that she was not
going to produce the samples from the other eight porters,
obtain samples from other ILC members or obtain samples
from 50 other inmates on the unit. 26 (Id. at 6, 17–18, 42–43).
Plaintiff claims that defendant Eggleston did not give
appropriate reasons for her refusal. A hearing officer does not
violate due process by excluding irrelevant or unnecessary
evidence or testimony. Kawalinski v. Morse, 201 F.3d 103,
109 (2d Cir.1999) (citing Kingsley v. Bureau of Prisons, 937
F.2d 26, 30 (2d Cir.1991)); Chavis v. vonHagn, No. 02–CV–
119, 2009 WL 236060, at *62 (W.D.N.Y. Jan. 30, 2009)
(citing Kawalinski, supra ).
It is clear from defendant Eggleston's comment that she
believed she had the “pertinent” information, and that she
believed the samples of the other inmates' handwriting that
were determined not to match the threatening letter were
not relevant to the hearing. She specifically stated that
asking for handwriting samples from all the ILC members
was not a reasonable request, as was plaintiff's request for
samples from all the inmates on the unit. (Eggleston Aff.
Ex. B at 9). Defendant Eggleston noted that there were no
other members of the ILC in plaintiff's dorm, other than
Alexander, and the threatening letter referred to officers who
worked in plaintiffss and Alexander's housing unit. (Id. at 17–
18). Defendant Eggleston credited defendant Whalen's and
defendant Chase's testimony that none of the other samples
matched the letter, thus producing the samples taken from
the eight porters was also not necessary. Plaintiff had the
opportunity to argue that his samples did not match the
threatening letter. Thus, defendant Eggleston was justified in
refusing to produce or obtain the requested evidence.
iii. Sufficiency of the Evidence
Defendant Chase and Whalen compared the threatening letter
with samples of plaintiff's handwriting and samples of the
handwriting of eight porters who lived on the same unit. They
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both testified at plaintiff's hearing, and stated that plaintiff's
was the only sample that came close to the handwriting in
the threatening letter. Plaintiff had the opportunity to question
them. Defendant Whalen also testified that she was plaintiff's
counselor and was familiar with his handwriting, but that
when she was approached to help with the investigation “at
no time was a specific inmate directed to [her].” (Eggleston
Aff. Ex. B at 45–47). Plaintiff was allowed to present his
witnesses, including the inmate who was impersonated in the
letter.
*18 Sergeant Giambruno also testified that he was involved
in the investigation, and he remembered comparing the
threatening letter to three or four different inmates' samples,
given to him by officers. (Id. at 48). He stated that he
compared a couple of samples from plaintiff's unit and some
from another building who had previously been housed in
plaintiff's unit. However, Sergeant Giambruno did not find
enough similarities in any of the letters. (Id. at 49). When he
was not successful in finding a match, he turned a copy of the
letter over to defendant Whalen, and ended his involvement
in the case. (Id.) He was not involved in determining that
plaintiff's handwriting was a match for the threatening letter.
(Id.)
The proof relied upon by defendant Eggleston constituted at
least “some evidence” sufficient to satisfy the requirements
of due process applicable to prison disciplinary hearings. See,
e.g., Monier v. Holt, 4:CV–05–2062, 2005 WL 3531369, at *2
(M.D.Pa. Dec.21, 2005), aff'd, 259 F. App'x 518 (3d Cir.2007)
(testimony of officer that the threatening note was comparable
to a sample of petitioner's handwriting constituted “some
evidence” sufficient for due process); Brown v. Dotson,
1:07CV114–03, 2007 WL 1033359, at *3 (W.D.N.C. Apr.2,
2007), aff'd, 242 F. App'x 19 (4th Cir.2007) (testimony
regarding handwriting comparison by investigating officer
constituted “some evidence” for due process purposes even
though a copy of the inappropriate letter he was accused of
writing was not made available to him); Pettus v. McGinnis,
533 F.Supp.2d 337, 341 n. 3 (W.D.N.Y.2008) (fact that a
harassing letter appeared to be in plaintiff's handwriting, and
that he had handed a copy to a correction officer, constituted
“some evidence” supporting the disciplinary charge); Bennett
v. Jackson, 2:06CV019, 2006 WL 618124, at *2 (E.D.Ark.
Mar.9, 2006) (testimony by officer that handwriting on the
threatening letter was comparable to a sample of plaintiff's
writing satisfied due process standards).
Defendant Eggleston read a lengthy decision into the record
that is supported by at least “some” evidence. (Id. at 87).
She stated that she discussed the witnesses that she found
were credible and the witnesses that were less relevant. She
explained why she made her determination, discussed the
sentence, and reminded plaintiff of his right to appeal. (Id. at
87–88).
The court notes that this determination was later
administratively reversed after plaintiff filed an Article 78
proceeding challenging the determination. (Prack Aff. ¶ 21
& Ex. D). Defendant Prack states that this was “[d]ue
to an overabundance of caution.” (Id.) Notwithstanding
that reversal, the hearing officer's failure to make an
independent examination of the handwriting would not
have violated plaintiff's federal due process rights. See,
e.g., Monier v. Holt, 2005 WL 3531369, at *2 (hearing
officer did not violate due process by accepting the officer's
testimony regarding his handwriting comparison); Bennett
v. Jackson, 2006 WL 618124, at *2 (hearing officer
who accepted officer's testimony regarding handwriting
comparison without requiring expert analysis satisfied due
process standards); Brown v. Dotson, 2007 WL 1033359,
at *3 (testimony regarding handwriting comparison by
investigating officer was not corroborated because the
inappropriate letter plaintiff was accused of writing, which
was tainted with bodily fluids, was destroyed). 27
*19 In his response to the motion for summary judgment,
plaintiff cites various New York State cases. See e.g. Hill v.
LeFevre, 124 A.D.2d 383, 507 N.Y.S.2d 330 (4th Dep't 1986).
This case discussed confidential testimony by an individual
who did not testify in the inmate's presence. Plaintiff cites
the “substantial evidence” standard, however, as stated above,
the sufficiency standard for federal due process is “some”
or a “modicum” of evidence. Plaintiff also cites state law
cases in which it was determined that the hearing officer
erred in failing to make her own determination of whether the
plaintiff's handwriting was similar to the subject letter. See
Odom v. Goord, 271 A.D.2d 723, 705 N.Y.S.2d 433 (3d Dep't
2000). In Odom, the court stated that although the corrections
officer was not legally qualified to render an opinion that
two documents contained the same handwriting, the hearing
officer was so qualified. Id. 271 A.D.2d at 724.
As stated above, the standard for review of disciplinary
hearings in state court is stricter than for federal due process
purposes. In any event, in this case, defendant Eggleston
had the samples of plaintiff's own writing to compare to the
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unknown author's threatening letter, and she did compare
them. Plaintiff is complaining that defendant Eggleston did
not look at the other inmates' letters to make an independent
determination of whether defendants chose the correct inmate
as the author. (Pl.'s Resp. at 8). The cases cited by plaintiff
do not apply, and even if the evidence had been insufficient
for state law purposes, that did not rise to the level of a
constitutional violation.
iv. Credit for Time Served in Pre–Hearing
Confinement
Finally, plaintiff alleges that it was error for defendant
Eggleston to make plaintiff's sanction run from the time of
the hearing, rather than giving him credit for time served in
keeplock prior to the hearing. Defendant Eggleston states in
her affidavit that giving credit for time served is a common
practice, but the decision to grant such credit is within the
discretion of the hearing officer and is not a procedural
requirement. (Eggleston Aff. ¶ 33). Defendant Eggleston
“rarely” granted credit for time served, and she believed it
would have been “particularly inappropriate” in this case
because of plaintiff's lengthy disciplinary history and because
the suspension of a prior disciplinary sanction did not deter
plaintiff from repeated offenses. (Id. ¶ 34).
The court notes that, other than a section stating that any
disciplinary penalty imposed in a Tier III hearing is to run
consecutively to “any other like penalty previously imposed”
unless “the hearing officer” determines that the penalties
shall run concurrently and advises the inmate, there are no
regulations governing credit for pre-hearing confinement.
N.Y. Comp.Code R. & Regs., tit.7, § 254.7(a)(2) (emphasis
added). This section clearly leaves the determination of
whether to run penalties consecutively or concurrently up
to the hearing officer, without any procedural requirement
other than notice to the inmate. The federal due process
requirements do not contain any reference to the sanctions
imposed or when the sanction must begin to run after an
inmate is found guilty of the violation. Thus, there is no due
process implication to this claim.
b. Telephone Violation
*20 The sanction imposed after plaintiff's second
disciplinary hearing consisted only of a short period
of deprivation of privileges. The length of plaintiff's
confinement was not affected. Based on Sandin, this court
finds that plaintiff had no liberty interest protected by due
process with respect to the disciplinary hearing held by
defendant Meskunas. Thus, any due process claim relating to
that hearing may be dismissed.
2. Retaliation
Plaintiff alleges that the two misbehavior reports discussed
above were filed against him in retaliation for his grievance
against defendant Leon. In their affidavits, both defendants
Chase and Whalen state that they did not know about
plaintiff's grievance against defendant Leon, and they did not
issue any false or retaliatory misbehavior reports. (Chase Aff.
¶¶ 19–23; Whalen Aff. ¶¶ 24–33).
During plaintiff's deposition, he was asked which grievance
he believed resulted in retaliation. (Pl.'s Dep. at 32). Plaintiff
stated that “it was a number of grievances and complaints,”
but then he stated that only one was a grievance, and “the
rest of them I think were complaints. I don't recall there being
actual grievances.” (Id.) Plaintiff specified the grievance
against defendant Leon as the formal grievance that caused
the alleged retaliation. (Id.) Plaintiff testified that when he was
going to the grievance hearing, he was sitting in the hallway,
and an officer asked plaintiff to tell him the subject matter of
the grievance. (Id. at 33). When plaintiff explained the facts
of the grievance, the officer told plaintiff that “it's not a good
thing to write grievances against people in Clinton, especially
somebody that's well liked like Leon.” (Id.) Plaintiff could not
name the officer who allegedly gave plaintiff this information.
He described the officer as “[h]eavy-set, about 5′7″ or 8″,
brown hair, about 260 pounds ....“ (Id.)
Plaintiff claims that the unknown officer gave plaintiff a hard
time about a permit for his wedding band approximately one
week after the above conversation. Plaintiff attributes this
verbal harassment to the fact that he told the officer about
the Leon grievance. (Id. at 35). Plaintiff testified that he
wrote a “complaint” against this unknown officer. (Id.) It
does not appear that this “complaint” was a formal grievance
because plaintiff states he wrote to the Superintendent and
was interviewed by a Sergeant about this issue. (Id. at 35–38).
Plaintiff also explained that in retaliation for the grievance
against Leon, and in retaliation for his wife's complaints,
plaintiff's wife was harassed at various times when she was
visiting. (Id. at 38–41). Plaintiff stated that Officer Lincoln
was involved in this harassment, and unnamed officers were
“whispering and pointing” at plaintiff and his wife. 28 (Id. at
39–30).
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Plaintiff also alleges that the July 23, 2010 incident and
misbehavior report were in retaliation for the Leon grievance
and plaintiff's wife's complaints about poor treatment during
her visits. (Id. at 41). Plaintiff claims that on July 23, 2010,
his housing unit was searched, and he was taken to SHU.
He testified that he knew these actions were in retaliation for
the Leon grievance and other complaints because, after he
was taken to SHU, defendant Chase interviewed plaintiff and
asked him about “the complaints.” (Id. at 42). Plaintiff told
Chase “what was going on and why.” (Id.) Plaintiff claimed
that defendant Chase told plaintiff that writing complaints was
not viewed favorably at Clinton, 29 and that Chase could “do
anything he want[ed] because he was in charge.” (Id.)
*21 Although plaintiff discussed defendant Chase at great
length during the deposition, there was really no indication
of how he or defendant Whalen would have known about
a grievance against defendant Leon or any other complaint,
formal or otherwise, made by plaintiff. Defendant Whalen
only became involved in the misbehavior report regarding
the threatening letter because defendant Whalen was a
corrections counselor, who kept all correspondence sent to her
by inmates, and who was asked to assist in the investigation
of the threatening letter by examining samples of plaintiff's
handwriting. (Whalen Aff. ¶¶ 4, 7, 9, 11). They looked at a
number of samples of inmates' writing by putting together a
list of the porters housed in the same building as plaintiff for
a handwriting comparison. (Id. ¶¶ 11–12).
Plaintiff speculates that this misbehavior report and the
telephone violation charge were retaliatory based upon an
alleged statement by an unknown officer and a claim that
defendant Chase told plaintiff that writing grievances was
not a good idea. However, plaintiff claims that this alleged
retaliation was committed by officers against whom he had
not written any grievances, and it is unclear how either
defendant Chase or defendant Whalen would have become
aware of plaintiff's grievance against defendant Leon.
In his response to the motion for summary judgment,
plaintiff also speculates that his letters of complaint regarding
visitation, addressed to other officers, found their way to
defendant Chase. A few of the complaint letters were
forwarded to Captain Holdridge, and defendant Chase
testified at plaintiff's disciplinary hearing that he was Acting
Captain and was reading Captain Holdridge's mail. (Pl.'s
Resp. at 10–11). One of the letters attached as an exhibit states
that plaintiff's “July 5, 2010 letter regarding staff complaint”
was referred to Captain Holdridge. (Pl.'s Ex. N). No July
5, 2010 letter was attached. 30 The next two letters are
dated July 9, 2010 and July 13, 2010 and are addressed to
Superintendent LaValley. (Pl.'s Ex. O). Both letters complain
about visitation and Officer Lincoln. The response from
Superintendent LaValley states that at the time of the incident,
defendant Chase “intervened and remedied the situation in
[her] favor.” 31 (Pl.'s Ex. P) (emphasis added).
Thus, plaintiff has not established a nexus between his
protected activity and the alleged retaliation. Retaliation
claims have been dismissed when they are supported only
by conclusory allegations that the retaliation was based
upon complaints against another officer. See, e.g., Hare v.
Hayden, 09 Civ. 3135, 2011 WL 1453789, at *4 (S.D.N.Y.
Apr.14, 2011) (“As a general matter, it is difficult to
establish one defendant's retaliation for complaints against
another defendant.”) (citing Wright v. Goord, 554 F.3d 255,
274 (2d Cir.2009) (dismissing retaliation claim against a
corrections officer when only alleged basis for retaliation
was complaint about a prior incident by another corrections
officer); Roseboro v. Gillespie, 791 F.Supp.2d 353, 369
(S.D.N.Y.2011) (plaintiff failed to provide any basis to
believe that a corrections counselor would retaliate for a
grievance that she was not personally named in) (collecting
cases); Ciaprazi v. Goord, 9:02–CV–915 (GLS/DEP), 2005
WL 3531464, at *8–9 (N.D.N.Y. Dec. 22, 2005) (granting
summary judgment and dismissing retaliation claim based
only on plaintiff's conclusory allegations that the manifest
falsity of the misbehavior report and testimony during the
disciplinary hearing indicated the disciplinary matters were
motivated by retaliatory animus due to grievances plaintiff
filed against individuals other than the defendants involved
in the disciplinary action). In this case, plaintiff's current
speculation that defendant Chase retaliated against plaintiff
based on two letters forwarded to Captain Holdridge that
defendant Chase may have seen, is unfounded. This is
particularly true because in Superintendent LaValley's letter,
he states that defendant Chase resolved the visitation issue in
plaintiff's wife's favor.
*22 Finally, defendants also argue that even if plaintiff
had made the appropriate showing, they would have taken
the same action, notwithstanding any retaliatory motive.
Defendants point out that plaintiff was found guilty of the
conduct charged in the misbehavior reports. The charges
in question were supported by documentary evidence, and
notwithstanding the reversal of the first hearing, a review of
the letters and plaintiff's handwriting shows that defendants
had a reasonable basis for the charges. The PIN violation
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was also supported by evidence documenting the telephone
calls made using plaintiff's PIN when he would have been
unable to make the telephone calls. Thus, plaintiff's claims of
retaliation may be dismissed. See Hynes v. Squillace, 143 F.3d
653, 657 (2d Cir.1998) (where the record clearly demonstrates
that the inmate in fact committed the most serious, if not all, of
the prohibited conduct charged in the misbehavior report, the
defendants meet their burden of demonstrating proper, non-
retaliatory reasons for filing the misbehavior report, and are
entitled to summary judgement on a retaliation claim).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that defendants' motion for summary
judgment (Dkt. No. 54) be GRANTED, and the amended
complaint DISMISSED IN ITS ENTIRETY AS TO ALL
DEFENDANTS.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen 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 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), 72.
All Citations
Not Reported in F.Supp.2d, 2013 WL 5441353
Footnotes
1 The court notes that Eggleston's name is misspelled on the docket, and the court directs the Clerk to amend
the docket to reflect the proper spelling of Eggleston's name. (Dkt. No. 54, Attach.3.)
2 The court notes that J. Carver was named as a defendant in Jones' initial complaint, (Dkt. No. 1), but was
omitted in Jones' amended complaint, (Dkt. No. 5), and subsequently dismissed as a defendant in a Decision
and Order by U.S. District Judge Thomas J. McAvoy, (Dkt. No. 6 at 5, 9). In that same Decision and Order,
C.O. Lincon also was dismissed as a defendant, and Jones' conspiracy claims and claims that he was denied
adequate warmth or food portions at Upstate Correctional Facility were dismissed. (Id. at 5–9.) Thereafter,
defendants filed a motion to dismiss for failure to state a claim. (Dkt. No. 37.) Magistrate Judge Andrew
T. Baxter recommended granting that motion, in part, and dismissing the complaint in its entirety against
Fischer, David, Rock, and Rabideau (and, therefore, dismissing Jones' ADA claims). (Dkt. No. 44 at 39–40.)
That recommendation was adopted by this court. (Dkt. No. 45.)
3 The Clerk is directed to append the R & R to this decision, and familiarity therewith is presumed.
4 “[A] report is clearly erroneous if the court determines that there is a mistake of fact or law which is obvious
and affects substantial rights.” Almonte, 2006 WL 149049, at *6.
1 Defendants' original motion was to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Such
a motion is directed to the face of the complaint. The court may also consider documents or exhibits that
are attached to the complaint or incorporated by reference. See Rothman v. Gregor, 220 F.3d 81, 88 (2d
Cir.2000); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (the court may
take into consideration documents referenced in or attached to the complaint in deciding a motion to dismiss,
without converting the proceeding to one for summary judgment). With a motion for summary judgment, the
court may consider additional evidence beyond the complaint to determine whether there are no disputed
questions of material fact and whether summary judgment for either party is appropriate, as stated in the
standard set forth above. See Fed.R.Civ.P. 56(c)(1)-(4).
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2 Plaintiff has numbered the pages of his amended complaint at the bottom. He has also identified paragraphs
on each page by letter. However, plaintiff begins each cause of action with a new set of letters, beginning
with ¶ (a). Thus, to properly cite to the amended complaint, the court will first cite the bottom page of the
document and then cite to the lettered paragraph in which the cited facts are stated.
3 Other documents in the record have clarified that there is a typographical error in the amended complaint. It
is apparent that plaintiff meant that defendant Leon “saw” plaintiff eating toast.
4 The deposition transcript has its own numbered pages which are different than the page numbers assigned
by the court's CM/ECF system. The court will use the pages that are on the deposition transcript itself.
5 Plaintiff's testimony that the only difference between the standard inmate diet and his therapeutic diet was
the sodium content was not accurate. (See Pl.'s Dep. at 23).
6 Plaintiff now disputes the date of the incident. In his response to the motion for summary judgment, he states
that the incident occurred on July 14, 2010 at breakfast, not on July 15, 2010 at lunch time. (Dkt. No. 56 at
4). First, plaintiff must mean “June” not “July,” and second, plaintiff's own exhibit indicates that the date was
June 15, 2010. (Dkt. No. 56–1, Ex. A). The Inmate Grievance Complaint is dated June 15, 2010, and the first
sentence states that “on the above date, I went to the noon meal and was told be Cook Colos [sic] that he
has removed my name off the diet list.” (Id.) (emphasis added). Because plaintiff's own exhibits contradict
his statement regarding the date and time of the incident, there is no question of fact, even if such a dispute
would have made a difference.
7 FA Timmons has not named as a defendant in plaintiff's action.
8 One of plaintiff's exhibits shows that he was placed back on the therapeutic diet on July 17, 2010. (Pl.'s Resp.
Ex. B; CM/ECF p .7).
9 The “Appeal Statement” says only “see body of grievance.” (Timmons Aff. Ex. C at 5). The body of the
grievance states that plaintiff wishes to be placed back on the special diet list and “no retaliation” be
commenced as a result of the grievance. (Id. at 6). It is possible that plaintiff appealed because the
Superintendent's decision did not address the issue of retaliation. The CORC did address that issue, stating
that it is against DOCCS regulations to retaliate against inmates for good faith use of the grievance procedure,
and if an inmate feels that he has been the subject of retaliation he “may pursue a complaint that reprisal
occurred through the grievance mechanism.” (Id.)
10 Plaintiff has signed several of these “contracts.” The earliest one submitted by plaintiff is dated June 26, 2009.
(Pl.'s Ex. L at CM/ECF p. 44). Plaintiff has also submitted requests dated September 8, 2009; December 17,
2009; June 1, 2010; August 25, 2010; and November 5, 2010. (Id. at CM/ECF pp. 39–43).
11 The court notes in passing that plaintiff has submitted copies of his medical records. On July 14, 2010, the
day before he was placed back on the special diet, and when he had been off of the therapeutic diet for
approximately one month, plaintiff's blood pressure was 129/83. (Pl.'s Ex. I at 1). One week after he started
the diet again, his blood pressure was back up to 147/90 in one arm and 146/96 in the other arm. (Id. at
2). The provider ordered a “BP med eval.” In August of 2010, plaintiff's blood pressure was 139/92, and on
October 21, 2010, his blood pressure was 118/64. (Pl.'s Ex. J–2 at CM/ECF pp. 114, 117). On August 21,
2010, plaintiff's blood pressure was 139/92, and there was an order for a low sodium diet signed at Upstate
Correctional Facility on August 25, 2010. (Id. at CM/ECF pp. 114, 115). While plaintiff had a few extremely
high readings in August of 2011 (more than one year after this incident), after he was prescribed Catapress
and another blood pressure medication, in September of 2011, his blood pressure readings were 120/86 and
138/85. (Pl.'s Ex. J at CM/ECF p. 29). On September 6, 2011, plaintiff complained that he had headaches
associated with his blood pressure, but his blood pressure reading was 120/86 that day, and ten days later,
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on September 16, 2011, it was still relatively low. (Id. at CM/ECF p. 29). There is no question that plaintiff
has high blood pressure, which was poorly controlled from time to time. However, there is no evidence that
defendant Leon's conduct in reporting plaintiff's violation of the therapeutic meal rules was the cause of any
serious problems plaintiff experienced with his blood pressure.
12 A diet “cancellation” would be registered on the same form as the diet request and attendance contract.
There is a space on the form for a “DIET REQUEST” and a “DIET CANCELLATION.” (Timmons Aff. Ex.
A). The policy provides that if the diet order is cancelled, and the inmate's name is removed from the list,
“documentation of the supporting reasons for cancellation or removal MUST be placed in the inmate's medical
record.” (Timmons Aff. Ex. B at 10). There is no such documentation in this record.
13 Defendant Leon does not concede that he initially discontinued giving plaintiff his special diet, but there
appears to be no question that plaintiff did not receive the therapeutic diet for one month. The grievance
documents show that the IGRC stated that the “Cook stated Jones was observed exchanging [sic] taking
other inates [sic] regular food on 6–15–10 which put him in violation of contract and removed him from
diet. Must request reinstatement to diet meal with medical.” (Leon Aff., Ex. B at 9) (emphasis added). The
“dissenting opinion” stated that “removing from medical diet should only be done by medical personnel.” (Id.)
The investigative report on appeal, written by M. Ratliff, after interviewing defendant Leon, states that plaintiff
“was observed exchanging and taking other inmates [sic] regular food on 6–15–10 which put him in violation
of the diet contract and he was removed from diet.” (Id. at 14) (emphasis added). A meeting was scheduled
with a doctor to “address this procedure,” and on the next day, Deputy Superintendent of Programs (“DSP”)
Keysor wrote that “only medical will remove from diet. 3 missed meal—warning given—2nd offense, medical
notified.” (Id.)
14 The court notes that plaintiff's grievance was granted to the extent that he was ordered back on the diet
because, according to the Superintendent's response, only the medical department could remove someone
from the therapeutic diet.
15 Defendants argue that the “removal” from plaintiff's medical diet was caused by “someone else, namely the
medical personnel who possessed the sole authority to effectuate that removal.” (Def.'s Br. at 11) (Dkt. No.
54–12). However, FA Timmons states that he “would have” discussed the report with medical personnel
who then “would have” made a determination of whether to cancel the diet. (Timmons Aff. ¶ 26). It is not
clear from the affidavit that this is exactly what happened. FA Timmons states that sometimes an inmate is
removed from the special diet and sometimes he is not. (Id. ¶ 28). FA Timmons also states that the Form
3273 is not used when addressing an issue of non-compliance with the Attendance Agreement: “that is an
administrative matter handled between the Director of Food Services and the Director of Health Services.” (Id.
¶ 29). Although it is unclear, this may mean that unless the diet is actually canceled by the Director of Food
Services, no form is used, and there is no record of the action taken.
16 The notation states “7/15/10 pe [sic] DSA Keysor-only medical will remove from diet.” (Leon Aff. Ex. B at 14). It
appears that the DSP was indicating that in the future, the procedure to follow was that after 3 missed meals,
an inmate would be warned, and after the “2nd offense,” the medical department would be notified. (Id.)
17 Defendant Eggleston is currently retired. (Eggleston Aff. ¶ 2).
18 Although defendant Whalen states that her misbehavior report is attached to her affidavit as Exhibit C, there
is no such exhibit in the record. However, the misbehavior report has been attached to defendant Meskunas's
affidavit in Exhibit A. The court will cite to the copy in the Meskunas affidavit.
19 Plaintiff was found not guilty of the refusal to obey an order. (Meskunas Aff. Ex. A at 1).
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20 “While failure to adhere to regulations does not itself give rise to a claim under 42 U.S.C. § 1983, it may
constitute evidence of a constitutional deprivation.” Samuels v. Selsky, 01CIV.8235, 2002 WL 31040370, at
*13 n. 21 (S.D.N.Y. Sept.12, 2002) (citing Duckett v. Ward, 458 F.Supp. 624, 627 (S.D.N.Y.1978).
21 Defendant Prack, the Acting Director of Special Housing and Inmate Programs and Inmate Disciplinary
Program also argues that plaintiff has not shown sufficient personal involvement by defendant Prack.
Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat
superior is an inappropriate theory of liability. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citation
omitted); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003). Because I find no constitutional violation in
this case, I need not reach the issue of personal involvement.
22 Although in its Report, recommending denial of the defendants' motion to dismiss, this court found that plaintiff
had a liberty interest in the first hearing, the court was not aware that plaintiff was unable to earn good time
credits. (Dkt. No. 44 at 39).
23 This basis for his due process claim was not raised in the amended complaint. (See AC at 9, ¶¶ u, w).
Generally, a party may not raise new claims in his or her response to a motion for summary judgment.
See Brown v. Raimondo, 9:06–CV–0773, 2009 WL 799970, at *2, n. 2 (N.D.N.Y. March 25, 2009) (Report–
Recommendation of Treece, M.J., adopted by Suddaby, J.) (“The Court notes that opposition papers
[on summary judgment motions] are not the proper vehicle to instill new causes of action or add new
defendants.”), aff'd, 373 F. App'x 93 (2d Cir.2010); Smith v. Greene, 9:06–CV0505, 2011 WL 1097863, at *3,
n. 5 (N.D.N.Y.Feb.1, 2011) (Baxter, M.J.) (“[P]laintiff should not be allowed to assert any new claims at this
stage of the case, particularly through his response to a summary judgment motion.”), adopted by, 2011 WL
1097862 (N.D.N.Y. March 22, 2011) (Suddaby, J.); Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 219–
20 (N.D.N.Y.2008) (McAvoy, J., adopting Report–Recommendation of Lowe, M.J.) (finding that pro se civil
rights plaintiff's complaint should not be effectively amended by his new allegations presented in his response
to defendants' motion for summary judgment); Shaheen v. McIntyre, 9:05–CV–0173, 2007 WL 3274835, at
*1, 9 (N.D.N.Y. Nov.5, 2007) (McAvoy, J., adopting Report–Recommendation of Lowe, M.J.) (finding that
pro se civil rights plaintiff's complaint should not be effectively amended by his new allegations presented in
his response to defendants' motion for summary judgment). Because, plaintiff did not raise this issue in the
amended complaint, defendant Eggleston did not address it in her affidavit. Notwithstanding the above, and
because this is an alternative finding, the court will consider the merits of this claim in addition to the other
bases for plaintiff's due process claim against defendant Eggleston.
24 The court also notes that the transcript contradicts plaintiff's assertion in the amended complaint that
defendant Eggleston told plaintiff to step out. The transcript reads as follows:
Jones: ... I'm objecting to the seven minute conversation you had with Chase off the record before he
testified.
Eggleston: I didn't have a seven minute conversation with him.
Jones: Yes it was. Yes. When he came in you all was discussing ... what was the nature of the investigative
material. You told him to step out.
Eggleston: That didn't have nothing [sic], that had nothing to do with this investigation.
Jones: Okay. All right All right. [sic] That's cool.....
(Eggleston Aff. Ex. B at 82).
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25 Inmate Alexander was the Vice Chairperson of the ILC, and plaintiff's theory was that someone on the ILC
wrote the letter, pretending to be Alexander in order to get Alexander into trouble. (Eggleston Aff. Ex. B. at 14).
26 Initially, defendant Eggleston stated that although she was not going to obtain 50 samples, she would “do
probably a reasonable number like three.” (Eggleston Aff. Ex. B at 5). She then asked plaintiff “which inmates
would you like,” but plaintiff did not give her any names and continued to request all the inmates.
27 In limited circumstances, the Second Circuit has required that a hearing examiner make an independent
assessment of the credibility of certain sources of evidence at a prison disciplinary hearing. See, e.g., Taylor
v. Rodriguez, 238 F.3d 188, 194 (2d Cir.2001) (a finding based on information from a confidential informant
will satisfy due process requirements only when there has been some examination of the factors relevant
to the informant's credibility); Luna v. Pico, 356 F.3d 481, 489–90 (2d Cir.2004) (a bare accusation from a
non-testifying victim is insufficient to support a disciplinary finding unless the examiner has engaged in some
examination of the factors bearing on the victim's credibility). However, the Second Circuit cases have not
engrafted, on the “some evidence” standard of Superintendent v. Hill, a general requirement that officers
at prison disciplinary hearings independently assess the reliability of other sources of evidence. See Luna
v. Pico, 356 F.3d at 491 (noting that the holding of Taylor v. Rodriguez regarding confidential informants
provides some guidance, but is not controlling, with respect to other sources of evidence). Neither of these
cases applies here. Both defendants Chase and Whalen testified regarding their investigation, there were
no confidential informants, and plaintiff was allowed to question both of the defendants. His theory that they
should have reviewed more handwriting samples and that defendant Chase was unreliable because he was
not a handwriting expert does not implicate federal due process rights. This court concludes that Taylor and
Luna do not impose a due process requirement that a hearing officer perform independent analysis of lay
handwriting comparisons of a witness who testifies at a prison disciplinary hearing and is subject to cross-
examination.
28 Any claims relating to these alleged incidents were dismissed after the defendants' first motion. (Dkt. Nos.
44, 45–1 at 32–33).
29 Whatever plaintiff told defendant Chase during this interview could not have been the reason for retaliation.
The investigation of the threatening letter was already underway.
30 This might be a typographical error by Superintendent LaValley because two letters of complaint were referred
to Captain Holdridge, (Pl.'s Ex. N, Q), but the letters in Exhibit O are dated July 9, and July 13.
31 Neither plaintiff nor his wife, ever mentions defendant Chase by name, but plaintiff's letter states that his wife
spoke to “a Lieutenant,” who stated he would take care of the situation. (Pl.'s Ex. O; Dkt. No. 56–1, CM/ECF
p. 51). Plaintiff's letter then states: “After that I was call [sic] down to the visiting room approximately five
minutes later.” (Id.) Plaintiff's wife also mentions that she spoke to “a lieutenant” who remedied the situation.
(Pl.'s Ex. O; Dkt. No. 56–1, CM/ECF p. 52). Plaintiff's wife stated that the time elapsed was 15 minutes, but
in any event it was clear that the “lieutenant,” who we now know from Superintendent LaValley's letter was
defendant Chase, helped plaintiff and his wife during the incident.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
© 2025 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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Kondziela v. County of Erie, Not Reported in F.Supp.2d (2011)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 4055163
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Julie KONDZIELA, Plaintiff,
v.
COUNTY OF ERIE, Erie County Sheriff, Timothy
B. Howard, Deputy Daryl Demari, individually
and as Erie County Sheriff's Deputy, Deputies
John Doe and Jane Doe, individually and as
Erie County Sheriff's Deputies, Defendants.
No. 09–CV–601S.
|
Sept. 12, 2011.
Attorneys and Law Firms
David Charles Crowther, Tronolone & Surgalla, P.C., Buffalo,
NY, for Plaintiff.
David J. Sleight, Buffalo, NY, for Defendants.
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief Judge.
I. INTRODUCTION
*1 In this action, Plaintiff asserts claims under the
Fourth and Fourteenth Amendments of the United States
Constitution pursuant to 42 U.S.C. § 1983, as well as claims
under Article I, § 12 of the New York State Constitution,
pursuant to 29 U.S.C. § 1367(a). Plaintiff's claims arise from
her arrest by Erie County Sheriff's deputies in Grand Island,
New York on April 1, 2008. Plaintiff seeks money damages
in the amount of $27,000,000 for Defendants' violations.
Presently before this Court is Defendants' motion to dismiss
Plaintiff's complaint in its entirety. For the reasons discussed
below, Defendants' motion to dismiss is granted. 1
II. BACKGROUND
A. Facts
In adjudicating Defendant's motion to dismiss, this Court
assumes the truth of the following factual allegations
contained in the complaint. See Hosp. Bldg. Co. v. Trs. of Rex
Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d
338 (1976); see also Hamilton Chapter of Alpha Delta Phi,
Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir.1997).
Plaintiff is a resident of Grand Island, Erie County, in the
State of New York. (Complaint (“Comp.”), ¶ 3.) Defendant,
the County of Erie, is a municipal corporation duly organized
under the laws of the State of New York. (Id. at ¶ 4.)
Defendant Sheriff Timothy Howard is an elected official
and employee of the County of Erie. (Id.) The remaining
defendants are all police officers also employed by the County
of Erie. (Id. at ¶¶ 6–7 .)
On April 1, 2008, at approximately 5:00 P.M., Plaintiff was
pulled over by Deputies Daryl Demari and John Doe while
driving in the town of Grand Island, Erie County. (Id. at ¶
12.) The stop was prompted by an electronic scan, which
revealed that the vehicle's registration was suspended. (Id. at
¶ 13.) Further investigation revealed that Plaintiff's driver's
license had also been suspended. (Declaration of James W.
Carey, (“Carey Decl.”), Docket No. 2, Ex. C) Plaintiff was
handcuffed and placed under arrest. (Comp.¶ 14.) Although
Plaintiff states that she was not provided with an explanation
for her arrest, (id. ¶ 16), she was given the opportunity to
make a phone call to her girlfriend. (Carey Decl., Ex. B, 20:8–
20:22.) During that conversation, Plaintiff told her girlfriend
that the police had said that her license was bad and that she
was being arrested. (Id.)
During her arrest, Plaintiff informed the officers that she
suffered from multiple sclerosis. (Comp.¶ 19.) She further
told them that she required her auto-injector in order to
self-administer her daily medication. (Id.) On Plaintiff's
directions, the officers searched, but could not locate, the
auto-injector in Plaintiff's vehicle and did not permit Plaintiff
to look for it herself. (Carey Decl., Ex. B, 21:9–22:1.)
After failing to find the auto-injector, Deputies Demari and
John Doe took Plaintiff to the Erie County Holding Center.
(Id. at ¶ 21.) There, Plaintiff was searched both over and under
her clothing by Defendant Officer Jane Doe, in the presence
of Deputy Demari. (Id. at ¶ 22.) In addition, Plaintiff was
instructed to take off her shoes, which were specially crafted
to help Plaintiff with her multiple sclerosis. (Id. at ¶¶ 24–
25.) Plaintiff was at the holding center for approximately two
hours before being released. (Id. at ¶ 26.)
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*2 Plaintiff now seeks to recover damages for violations
of her right to be free from unreasonable search and
seizures under the Fourth Amendment of the United States
Constitution and Article I, § 12, of the New York State
Constitution, inadequate medical care under the Fourteenth
Amendment of the United States Constitution, and conspiracy
to commit the same. 2
B. Procedural History
Plaintiff commenced this action on June 29, 2009, by filing a
complaint in the United States District Court for the Western
District of New York. Defendant filed the instant motion to
dismiss Plaintiff's complaint in its entirety on July 21, 2009.
III. DISCUSSION
A. Legal Standard
Rule 12(b)(6) allows dismissal of a complaint for “failure to
state a claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Federal pleading standards are generally not
stringent: Rule 8 requires only a short and plain statement of
the claim. Fed.R.Civ.P. 8(a)(2). But the plain statement must
“possess enough heft to show that the pleader is entitled to
relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,550 U.S.
544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).
When determining whether a complaint states a claim, the
court must construe it liberally, accept all factual allegations
as true, and draw all reasonable inferences in the plaintiff's
favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87,
98 (2d Cir.2007); Goldstein v. Pataki, 516 F.3d 50, 56 (2d
Cir.2008). Legal conclusions, however, are not afforded the
same presumption of truthfulness. See Ashcroft v. Iqbal, –––
U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(“[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.”)
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ “ Id. at 1945 (quoting
Twombly, 550 U.S. at 570). Labels, conclusions, or “a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Facial plausibility
is present when the factual content of the complaint allows
for a reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 129 S.Ct. at 1949. The plausibility
standard is not, however, a probability requirement; the
pleading must show, not merely allege, that the pleader is
entitled to relief. Id. at 1950; Fed.R.Civ.P. 8(a)(2).
A two-pronged approach is thus used to examine the
sufficiency of a complaint. First, statements that are not
entitled to the assumption of truth—such as conclusory
allegations, labels, and legal conclusions—are identified and
stripped away. See Iqbal, 129 S.Ct. at 1950. Second, well-
pleaded, non-conclusory factual allegations are presumed true
and examined to determine whether they “plausibly give rise
to an entitlement to relief.” 3 Id.
B. Plaintiff's Fourth Amendment Claim
*3 Defendant moves to dismiss Plaintiff's unlawful search
claim on the ground that no facts are alleged to support finding
the search unreasonable. Plaintiff states that she was touched
“underneath her shirt ... underneath [her] breasts ... down
through the front of [her] underwear” and that the officer's
hand went “through the middle of the buttock.” (Carey
Decl., Ex. B, 41:9–42:19.) Based on this description, this
Court finds that Plaintiff has asserted no facts rising to the
level of a violation of the Fourth Amendment of the United
States Constitution or Article I, § 12 of the New York State
Constitution. 4
It is well settled in the Second Circuit that the Fourth
Amendment precludes prison officials from performing strip
searches and body cavity searches of arrestees charged with
misdemeanors unless they have reasonable suspicion that the
arrestee is concealing contraband or a weapon. Marriot v.
County of Montgomery, 426 F.Supp.2d 1, 7 (N.D.N.Y.2006).
In Vassallo v. Lando the plaintiff was searched and told to roll
up his pant legs and lift the bottom of his t-shirt to expose his
waistband. 591 F.Supp.2d 172, 197–98. The court concluded
that this did not constitute a strip search, distinguishing it
from cases like Phaneuf v. Fraikin, where plaintiff removed
her skirt completely and pulled her undergarments away from
her body. See 448 F.3d 591, 598 (2d Cir.2006). Similarly
here, Plaintiff has only stated that her pants were brought
down a little below her hip bone. (Carey Decl., Ex. B, 41:13–
42:12.) This does not rise to the level of a strip search. Having
concluded that the present case did not entail a strip search,
this Court concludes that “maintaining institutional security
and preserving internal order and discipline are essential
goals that may require limitation or retraction of the retained
constitutional rights of both convicted prisoners and pretrial
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Kondziela v. County of Erie, Not Reported in F.Supp.2d (2011)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
detainees.” Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861,
60 L.Ed.2d 447 (1979). Plaintiff has not presented this Court
with any case law challenging as reasonable a holding center's
power to search, but not strip search, an arrestee. Id. at 540–
41. Consequently, Defendants' motion to dismiss Plaintiff's
unlawful search claim will be granted.
C. Plaintiff's Inadequate Medical Care Claim
Defendant also moves to dismiss Plaintiff's claim that she was
denied medication. Plaintiff alleges that she was denied two
medical necessities related to her Multiple Sclerosis. First,
an auto injector that provides a medicinal shot and must be
used on a daily basis. Second, her prescription shoe lifts,
which help maintain her balance. Pre-trial detainees suffering
from inadequate medical care by the state may bring claims
under the Due Process Clause of the Fourteenth Amendment.
Thomas v. Nassau County Corr. Ctr., 288 F.Supp.2d 333, 337
(E.D.N.Y.2003). The standard for proving a constitutional
claim for inadequate medical care is “deliberate indifference
to a prisoner's serious medical needs.” Id. (quoting Estelle
v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976)). The first part of this standard requires that
the deprivation of care be objectively serious. Id. at 338.
Sufficiently serious deprivations have been found where
“officials deliberately delayed care as a form of punishment,
ignored life threatening and fastdegenerating conditions for
three days, or delayed major surgery for over two years.”
Id. at 339. Here, Plaintiff was in custody for approximately
two hours. She gave herself the necessary medicinal shot that
evening, after being released. She was without her shoes only
for the duration of her detention. At no point did Plaintiff fall.
In fact, at no point did Plaintiff suffer any injury as a result of
being deprived of either of her medical necessities.
*4 Plaintiff's descriptions, in general, describe only what
amounts to an unpleasant pair of hours spent in a
holding facility. While this Court does not doubt that the
experience proved emotionally shocking for the Plaintiff,
such circumstances do not rise to the level of seriousness
constituting a violation of Plaintiff's due process rights
under the Fourteenth Amendment. See id. at 338–39 (even
if treatment delayed, Plaintiff must show worsening or
deterioration as result of delay).
Consequently, Defendants' motion to dismiss Plaintiff's denial
of medication claim will be granted.
D. Plaintiff's Unlawful Arrest Claim
Lastly, Defendant moves to dismiss Plaintiff's claim that she
was denied the reasons for her arrest. Plaintiff asserts that
Defendants' failure to inform her why she was being arrested
constitute a violation of her constitutional rights.
At the outset, this Court notes that a police officer's failure
to inform an arrestee of the grounds for which he is
being arrested does not constitute a constitutional violation.
Murphy v. Sr. Investigator Neuberger, No. 94 Civ. 7421,
1996 WL 442797, at *8, n .5 (S.D.N.Y. Aug. 6, 1996);
People v. Hampton, 44 A.D.3d 1071, 844 N.Y.S.2d 399, 400
(N.Y.App.Div.2007). However, New York law requires that
a police officer making a warrantless arrest must inform the
suspect of his authority and the purpose and reason for such
an arrest. N.Y .C.P.L. Art. 140.15(2). An arrest made without
explaining the basis for detention is unlawful under New York
law. People v. Henry, 152 Misc.2d 848, 579 N.Y.S.2d 565,
571 (N.Y.Sup.Ct.1991).
Here, Plaintiff made a phone call following her arrest
during which she stated that she was being arrested and
that the police had told her there was a problem with
her driver's license. (Carey Decl ., Ex. B, 20:20, 33:16–
34:2; 71:16–71:20.) Additionally, her complaint states that
she was stopped because an electronic scan of her license
plate indicated that the vehicle's registration was suspended.
(Complaint ¶ 13.) However, other parts of her testimony
highlight Plaintiff's belief that she had not been given the
reason for her arrest, including that she was apparently told
that there was a warrant out for her arrest. (See Carey Decl.,
Ex. B, 24:21–25:11; 44:18–44:22; but see 30:16–31:1; 32:5–
33:6).
On a motion to dismiss, this Court must presume as true
all Plaintiff's nonconclusory factual allegations. Iqbal, 129
S.Ct. at 1950. These must nudge the claim “across the line
from conceivable to plausible.” Twombly, 550 U.S. at 570.
Plaintiff's testimony reveals that the officers did provide
Plaintiff with some information, although Plaintiff did not
believe this explained the cause of her arrest. Although there
appears to be some doubt whether, under New York law,
sufficiency of warning can be inferred from circumstance,
see Henry, 579 N.Y.S.2d at 571, here it was not the fact
that Plaintiff was actually driving with a suspended license
and registration that gave her notice of why she was being
arrested, but Plaintiff's own testimony demonstrating her
awareness of the grounds for the arrest. Cf. People v. Marsh,
20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783, 785–86
(N.Y.1967) (arrest for traffic infraction permissible). This is
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Kondziela v. County of Erie, Not Reported in F.Supp.2d (2011)
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corroborated by the fact that she was able to make a phone call
describing the problem and what was happening as a result.
On this basis, this Court will therefore grant Defendants'
motion to dismiss Plaintiff's remaining claim.
E. Defendants' Remaining Arguments
*5 Defendants also argue that neither the County nor
Defendant Howard can be held liable for the actions of the
deputy officers because the county has not assumed liability,
Defendant Howard specifically is not liable for his deputies
while they engage in criminal justice functions, and the
deputies are not liable because they are entitled to qualified
immunity. Because this Court grants Defendants' motion to
dismiss on the merits, it need not consider these further
arguments.
IV. CONCLUSION
Plaintiff has conceded various of Defendants' arguments
and withdrawn claims accordingly. Defendants' Motion to
Dismiss as to these claims is granted. On those claims that
remain, for the reasons discussed above, Defendants' Motion
to Dismiss is granted.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants' Motion to
Dismiss (Docket No. 2) is GRANTED.
FURTHER, that the Clerk of the Court is directed to close this
case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 4055163
Footnotes
1 In support of their Motion to Dismiss, Defendants filed a Memorandum of Law, the Declaration of James W.
Carey, Esq., and a Reply Declaration. (Docket Nos. 2, 3, 11.)
In opposition to Defendants' Motion to Dismiss, Plaintiff filed a Response Memorandum and the Affidavit
of David C. Crowther, Esq. (Docket Nos. 6, 7.)
2 Plaintiff originally brought nine causes of action. Plaintiff now concedes that there was probable cause to
arrest and withdraws her claim to the contrary. (Affidavit of David C. Crowther (“Crowther Aff.”), Docket No.
7, ¶ 8.) Plaintiff also concedes that she was not held at the holding center for an unreasonable amount of
time, and withdraws that claim as well. (Id.) Similarly, Plaintiff does not contest Defendants' immunity on
various other of Plaintiff's claims, leaving the aforementioned causes of action. (Plaintiff's Memorandum of
Law, Docket No. 6, 5–6 .)
3 Although seemingly inconsistent with the command to treat well-pleaded factual allegations as true, this
plausibility inquiry appears to include consideration of whether more likely or alternative explanations for the
complained-of conduct exist. See, e.g., Iqbal, 129 S.Ct. at 1951–52 (“But given more likely explanations, [the
allegations] do not plausibly establish this purpose.”); Twombly, 550 U.S. at 567–68 (finding that plaintiff's
allegations were not suggestive of antitrust conspiracy in the face of an “obvious alternative explanation” for
the allegations in the complaint).
4 The right to be free from unreasonable search and seizures under the Fourth Amendment and Article I, §
12 of the New York State Constitution are largely coextensive. Febres v. City of New York, 238 F.R.D. 377,
392 (S.D.N.Y.2006). “This court has repeatedly stated that the proscription against unlawful searches and
seizures contained in N.Y. Constitution, article I, § 12 conforms with that found in the 4th Amendment, and
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Kondziela v. County of Erie, Not Reported in F.Supp.2d (2011)
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that this identity of language supports a policy of uniformity between State and Federal courts.” People v.
Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439, 445 (N.Y.1985). Consequently, if this Court finds
that Plaintiff's Fourth Amendment rights have not been violated it will also conclude that Plaintiff's parallel
rights under the New York State Constitution have not been violated. See Febres, 238 F.R.D. at 392.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 326 of 520

Kraemer v. City of New York, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 1974204
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Thomas KRAEMER, Plaintiff,
v.
The CITY OF NEW YORK; NYPD; DOI; Andrew
Guinan, DOI Inspector; Ditsrict Counsel 37; U.S.
Marshal, SDNY; Michael Edelstein; Mickey Cekovic;
Lisa Spitale, Esq.; Marcie Romberger, Esq.; Shannon
Moore, Esq; Amy (Fontno) DeRaymond; Raymond
DeRaymond, Attorney; County of Northampton Office
of the County Executive; Northampton County Court;
Northampton County MH/MR; Milestones Community
Healthcare Inc.; Northampton County Sheriff; Gretchen
Kraemer, Deputy; the Easton Area School District;
Freya Koger, Ph.D; the City of Easton; Easton Police;
CVS Health Corporate; Xequiel Hernandez, Dr.;
DermOne; Cha J. Yu, Dr.; Lamont McClure, Defendants.
19-CV-6671 (VEC)
|
Signed 04/24/2020
Attorneys and Law Firms
Thomas Kraemer, New York, NY, pro se.
Joshua Alan Weiner, New York City Law Department, New
York, NY, for Defendant the City of New York.
Zachary Bannon, DOJ-USAO, New York, NY, for Defendant
U.S. Marshal.
Nicholas J. Ferrar, Law Offices of Nicholas J. Ferrar, Garden
City, NY, for Defendants Michael Edelstein, Mr. Michael
Edelstein.
Gerard Joseph Geiger, Newman Williams, Stroudsburg, PA,
for Defendants County of Northampton Office of the County
Executive, Northampton County MH/MR, Northampton
County Sheriff, Gretchen Kraemer, Lamont McClure.
Brian J. Taylor, King, Spry, Herman, Freund & Faul, LLC,
Bethlehem, PA, for Defendant the Easton Area School
District.
Edward George Sponzilli, Norris, McLaughlin & Marcus,
Bridgewater, NJ, for Defendant the City of Easton.
Christine Sara Varghese, Sophia Ree, Landman Corsi
Ballaine & Ford PC, New York, NY, for Defendant CVS
Health Corporate.
ORDER
VALERIE CAPRONI, United States District Judge:
*1 WHEREAS Plaintiff, acting pro se, has filed a 186-
page complaint, with hundreds of pages of additional exhibits,
alleging a wide-ranging plot between allegedly omnipotent
federal, state, and local authorities (judicial and executive)
and the mother of Plaintiff's child to torture, kidnap,
and traffic that child while undertaking extensive efforts
to undermine Plaintiff's efforts to seek justice, including
by attempted murder through poisonous gas—allegedly
administered by Plaintiff's landlord—and multiple hit-and-
run attempts, see, e.g., Dkts. 1, 15, 20–27;
WHEREAS the Complaint is riddled with entirely
implausible allegations, including of pervasive surveillance
and surreptitious communications, such as nose-swipes,
sniffs, and a seemingly omnipresent cabal committed to
discrediting and harming Plaintiff, see, e.g., Dkt. 1 at 41, 145;
WHEREAS another judge in this district has previously
observed that Plaintiff's “filing history evinces a pattern
of vexatious, duplicative, and nonmeritorious litigation,”
and that Plaintiff's “dense, repetitive, and difficult to
decipher” submissions “needlessly force the Court to expend
considerable resources,” see Order of Dismissal, Kraemer v.
Edelstein et al., No. 17-CV-2910, Dkt. 14 at 10 (S.D.N.Y.
Sep. 19, 2017);
WHEREAS Plaintiff has been barred from filing any action
in forma pauperis without judicial approval, see Bar Order,
Kraemer v. Edelstein et al., No. 17-CV-2910, Dkt. 16
(S.D.N.Y. Nov. 1, 2017);
WHEREAS Plaintiff has previously alleged, in a separate
action commenced on December 8, 2014, coordinated efforts
by many of the Defendants in this case to kidnap, imprison,
and torture his daughter, see Transfer Order, Kraemer v.
Fontno et al., No. 14-CV-9343, Dkt. 11 (S.D.N.Y. Mar. 18,
2015);
WHEREAS that 2014 action was transferred to the Eastern
District of Pennsylvania, id., which soon dismissed Plaintiff's
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claims as frivolous on multiple grounds, including res
judicata, see Memorandum Opinion, Kraemer v. Fontno et
al., No. 15-CV-01521, Dkt. 8 at 1, 8 (E.D.P.A. June 10, 2015);
WHEREAS Plaintiff has previously litigated and lost another
action, in 2010, in the Eastern District of Pennsylvania,
against many of the same Defendants and arising out of the
same perceived abuse of his daughter, 1 see Memorandum
Opinion, Kraemer v. Commonwealth of Pennsylvania et al.,
No. 10-CV-04868, Dkt. 122 (E.D.P.A. Sep. 15, 2011);
WHEREAS Plaintiff's present complaint arises out of the
same transaction or occurrence as his previous complaints
but is rebranded as a Racketeer Influenced and Corrupt
Organizations Act (RICO) claim, tying together virtually all
the grievances aired in his prior cases;
WHEREAS Plaintiff alleges injuries that occurred as early as
the year 2000, see, e.g., Dkt. 1 at 8, 14;
*2 WHEREAS one of the many Defendants moved to
dismiss on various grounds, including statute of limitations 2
and res judicata, Dkt. 18;
WHEREAS the statute of limitations for a civil RICO action
is four years, which begins to run from Plaintiff's discovery of
his RICO injury and is not extended by later predicate acts 3 ;
WHEREAS, to obviate extensive and repetitive briefing by
the numerous Defendants, the Court stayed the remaining
Defendants’ time to respond to the Complaint and ordered
Plaintiff to show cause why his action should not be dismissed
as time-barred because he became aware of his alleged RICO
injuries likely as early as 2000 4 and certainly no later than
2010 or 2014, when he litigated the same allegations against
many of these Defendants, 5 Dkt. 28;
WHEREAS the Court further ordered Plaintiff to show cause
why the action is not barred by res judicata, Dkt. 28;
WHEREAS the Court further ordered Plaintiff to show cause
why the action should not otherwise be dismissed as factually
frivolous, Dkt. 28;
*3 WHEREAS Plaintiff's written response indicates that he
entered the Thurgood Marshall United States Courthouse and
demanded to meet personally with the undersigned because
he doubted the authenticity of the Order, which was conveyed
via ECF notice, Dkt. 29;
WHEREAS Plaintiff appears to accuse the Clerk's Office and
the Pro Se Unit's staff of using Defendants’ secret signals and
joining in the coordinated plot against him, Dkt. 29;
WHEREAS Plaintiff's written response continued to dispute
the authenticity of the Court's order and demand an in-person
hearing, without addressing the statute of limitations and res
judicata grounds for dismissal, Dkt. 29;
WHEREAS the Court informed Plaintiff that the previous
order was, in fact, authentic, and reminded him of the need to
respond to the substance of the Order to Show Cause, Dkt. 30;
WHEREAS Plaintiff thereafter submitted an affidavit that
was again non-responsive to the statute of limitations or res
judicata grounds for dismissal, instead demanding the right
to engage in discovery, Dkts. 32–33;
WHEREAS Plaintiff filed a separate 103-page response,
which rehashes his convoluted allegations and largely ignores
the res judicata and statute of limitations issues, except to
tangentially cite to criminal cases involving RICO claims
prosecuted by the federal government, which are subject to
different limitations rules, 6 Dkt. 34 at 3; and
WHEREAS Plaintiff has continued to submit voluminous
filings totaling nearly two thousand pages—none of which
addresses the statute of limitations or res judicata issues—
after the deadline to respond to the Order to Show Cause had
elapsed, see Dkts. 36–38, 40–45, 47;
IT IS HEREBY ORDERED that this action is dismissed
because Plaintiff failed to show cause why this action should
not be dismissed as frivolous. First, the action is clearly
precluded by the four-year statute of limitations applicable to
civil RICO actions. Plaintiff does not dispute that he has been
aware of his injuries since before 2015—he instead argues
that the limitations period does not apply. See, e.g., Dkt. 34
at 2 (“Accordingly, there are verifiable predicate offenses
for which there is no time-bar.”); Dkt. 34 at 6 n.7 (“There
is no time bar for attempted murder, the attempted murder
of federal judge applicants victim(s), or torturing a federal
judge applicants trafficking victim (EK) to silence her speech
while he was being vetted by Congress and the President.”).
Because Plaintiff's litigation history and present allegations
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Kraemer v. City of New York, Not Reported in Fed. Supp. (2020)
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indisputably show that he was aware of his RICO injuries long
before 2015, the action, on its face, is time-barred.
Alternatively, Plaintiff has failed to show cause why this
action is not barred by res judicata, because his RICO claims
could have been alleged in his earlier cases, which involved
essentially the same enterprise, albeit with a slightly different
cast. See Clarke v. Frank, 960 F.2d 1146, 1150 (2d Cir. 1992)
(“Claim preclusion prevents a party from litigating any issue
or defense that could have been raised or decided in a previous
suit, even if the issue or defense was not actually raised or
decided.”); Ruderer v. Dep't of Justice, 389 F. Supp. 549, 550
(S.D.N.Y. 1974) (“Plaintiff cannot escape the effect of prior
adverse determinations by clothing the claim(s) in different
garb.” (citation omitted)).
*4 Finally, the case is also dismissed because the allegations
are “fanciful” and factually frivolous, even when liberally
construed. Denton v. Hernandez, 504 U.S. 25, 33 (1992)
(“[A] finding of factual frivolousness is appropriate when the
facts alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable
facts available to contradict them.”). “A plaintiff asserting
fantastic or delusional claims should not, by payment of
a filing fee, obtain a license to consume limited judicial
resources and put defendants to effort and expense.” Tyler v.
Carter, 151 F.R.D. 537, 540 (S.D.N.Y. 1993), aff'd, 41 F.3d
1500 (2d Cir. 1994). While the Court has no basis to doubt
the sincerity of Plaintiff's beliefs, the allegations exhibit a
level of delusional paranoia that makes the continuation of
this vexatious litigation an unjustified expenditure of public
and private resources. See, e.g., Dkt. 1 at 54–55 (alleging
coordinated efforts by police, AMC movie theaters, the Apple
store, Duane Reade, CVS, Dunkin Donuts, FedEx, Hudson
Yards, McDonald's, New York University, Starbucks, Staples,
T-Mobile, and others to surveil, mock, and harass Plaintiff);
Raoul v. City of New York Police Dep't, No. 14-CV-1787,
2015 WL 1014204, at *2 (E.D.N.Y. Mar. 6, 2015) (concluding
that plaintiff's claims were factually frivolous because they
“are based purely on wide-ranging, incoherent allegations
of a massive conspiracy by numerous federal, state, and
local government entities to persecute him through tactics
ranging from aerial drone surveillance to messages beamed
directly into his mind”). As the Second Circuit has held,
courts need not entertain conspiracy theories based on “pure
speculation and conjecture.” Gallop v. Cheney, 642 F.3d 364,
368 (2d Cir. 2011); see, e.g., Dkt. 1 at 60–61 (alleging that
FBI and NYPD conspired with Jewish landlords in attempt
to murder Plaintiff in order to protect federal judge from
human-trafficking liability). Further expenditure of resources
in this case is particularly unwarranted because Plaintiff has
already had several attempts, in at least two districts, to litigate
the perceived misconduct. See Papadopoulos v. Gazes, No.
14-CV-3713, 2014 WL 3928940, at *5 (S.D.N.Y. Aug. 12,
2014) (“The factual allegations in the Complaint are fanciful,
fantastic, and unmoored from reality. Worse yet, they are
precisely the same fanciful allegations as have been dismissed
time and time again.”).
For the foregoing reasons, the complaint is dismissed as
legally and factually frivolous, notwithstanding Plaintiff's
payment of the filing fee. Leave to amend, which has not been
requested, is denied as futile because the multiple defects in
this case are not the result of inartful pleading and cannot be
cured by yet another attempt to re-litigate Plaintiff's perceived
persecution.
The Clerk of Court is respectfully directed to terminate all
pending motions and deadlines and close the case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1974204
Footnotes
1 In the interest of brevity, the Court simply notes that Plaintiff has litigated and lost at least two other actions
with related facts. See Order of Dismissal, Kraemer v. Edelstein, No. 15-CV-9839 (S.D.N.Y. Jan. 26, 2016);
Order of Dismissal, Kraemer v. Fontno, No. 15-CV-1755 (S.D.N.Y. Apr. 1, 2015).
2 Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989) (“Where the dates in a complaint show
that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-
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Kraemer v. City of New York, Not Reported in Fed. Supp. (2020)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4
answer motion to dismiss. Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure
to state a claim upon which relief can be granted.”).
3 See Rotella v. Wood, 528 U.S. 549, 554 (2000) (reaffirming rejection of last predicate act rule); Klehr v. A.O.
Smith Corp., 521 U.S. 179, 187 (1997) (“[T]he last predicate act rule creates a limitations period that is longer
than Congress could have contemplated.”); Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 361 (2d Cir. 2013)
(“In RICO cases, we have applied a discovery accrual rule, under which the limitations period begins to run
when the plaintiff discovers or should have discovered the RICO injury.” (citation omitted)); Koch v. Christie's
Int'l PLC, 699 F.3d 141, 148–49 (2d Cir. 2012) (holding that discovery accrual rule announced in Rotella
continues to be controlling law).
4 The complaint alleges that Plaintiff's daughter was trafficked in 2000, with additional predicate acts occurring
in 2006, 2012, and 2013. See, e.g., Dkt. 1 at 8–9, 11.
5 District courts may sua sponte dismiss cases as frivolous to preserve judicial resources, even when the
plaintiff has paid the filing fee rather than proceed in forma pauperis. Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[A]s 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. Accordingly, we hold that district courts may dismiss a
frivolous complaint sua sponte even when the plaintiff has paid the required filing fee.”); Tyler v. Carter, 151
F.R.D. 537, 540 n.2 (S.D.N.Y. 1993) (sua sponte dismissing action as frivolous as to all defendants pursuant
to Rule 12(b)(6) even though only some defendants moved to dismiss), aff'd, 41 F.3d 1500 (2d Cir. 1994).
6 Klehr, 521 U.S. at 188 (“We recognize that RICO's criminal statute of limitations runs from the last, i.e., the
most recent, predicate act. But there are significant differences between civil and criminal RICO actions, and
this Court has held that criminal RICO does not provide an apt analogy.”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 330 of 520

Kramer v. City of New York, Not Reported in Fed. Supp. (2004)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Berrio v. City of New York, S.D.N.Y., January 10,
2017
KeyCite Overruling Risk
Overruling Risk Pearson v. Callahan, U.S., January 21, 2009
2004 WL 2429811
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Caryll KRAMER, Plaintiff,
v.
THE CITY, NEW YORK CITY NEW YORK
POLICE DEPARTMENT, Police Officer Craig De
Oliviera, Detective Patrick Kennedy, Sheld 2041, and
Unidentified New York City Police Officers Defendant.
No. 04 Civ.106 HB.
|
Nov. 1, 2004.
OPINION & ORDER
BAER, J.
*1 Plaintiff, Caryll Kramer brought a civil rights claim,
under 42 U . S.C. § 1983, against Defendants, the City
of New York (“City”), New York City Police Department
(“NYPD”), Police Officer Craig De Oliviera (“Oliviera”),
Detective Patrick Kennedy (“Kennedy”), Shield 2041, and
Unidentified New York City Police officers (collectively,
“Defendants”). Pursuant to Federal Rule of Civil Procedure
56, Defendants move for summary judgment. 1 For the
reasons set forth below, Defendants motion for summary
judgment is GRANTED.
I. BACKGROUND
A. Factual Background
Noel Kramer had consulted the same physician, Dr. Jonathan
Raskin (“Raskin”), for over 12 years. In fear, Noel Kramer
asked Raskin to run tests to determine whether, in fact,
Plaintiff had attempted to kill him. Raskin, aware of Plaintiff's
alleged alcoholism, alleged abusiveness, and his patient's
belief that his wife had attempted to poison him (Raskin
Dep. at 23:5—24:16), ran tests in April 2001, and the results
indicated that the arsenic level in Noel Kramer's blood were
seven times greater than normal. (Raskin Dep. at 21:7—15).
In response to consistent illness because of his wife's food
and fear for his safety, on May 10, 2001, Noel Kramer,
accompanied by Oliveira and a nurse's aide, entered the 17 th
Precinct and lodged a complaint, which alleged that his wife,
the Plaintiff here, had attempted to poison him. In support
of his allegation, Noel Kramer informed the police of (1)
a lab analysis that indicated an increased level of arsenic
(N.Y.PD Compl. Rep. # 2001–17–0032932); (2) “that his
doctor couldn't explain why he had such high levels of arsenic
in his system”; (3) that his wife would not allow anyone else
to prepare his food; and, (4) that his relationship with his
wife had significantly deteriorated. (Kennedy Dep. at 18:23
—24:2).
To discern the legitimacy of Noel Kramer's criminal
complaint, the New York County District Attorney's Office
directed that newly prepared food be tested for poison.
(Hughes Dep. at 23:22—24:14). On the evening of May
10, 2001, at the direction of the Assistant District Attorney,
Noel Kramer returned to his apartment and ordered food.
The police entered the apartment and Plaintiff refused to
follow the police officer's directions. (Heiman Dep. at
22:11). Plaintiff went for her purse and Heiman pushed the
pocketbook away and looked inside to make sure there were
no weapons. (Heiman Dep. at 22:11; Kennedy Dep. at 66:10
—67:22; Sullivan Dep. at 31:2—19; Pl. Dep. at 137:9—
138:22). The Detectives handcuffed Plaintiff and escorted
her out of the apartment. (Pl. Dep. at 139:16—20). Plaintiff
never complained or sought treatment for any injuries that
resulted from the arrest and never sought medical treatment
for any injuries she allegedly sustained as a result of being
handcuffed. (Pl. Dep. at 147:7—151:23).
Upon arrival at the 17 th Precinct, the police locked Plaintiff
in a holding cell. (Pl. Dep. at 156:4—9). Plaintiff was in
the holding cell for several hours, but not searched until she
requested to use the bathroom. (Pl. Dep. at 154:19—155:23).
On the evening of the arrest, while at the 17 th Precinct,
Plaintiff requested the use of the ladies room twice. (Pl. Dep.
at 154:23). During both occasions, a female law enforcement
officer escorted Plaintiff into the bathroom where Plaintiff
“had to bear” her “derriere.” (Pl. Dep. at 154:18—24). The
following morning, May 11, 2001, Plaintiff was escorted to
Central Booking and later that day arraigned for attempted
murder in the second degree and resisting arrest. Bail was set
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at $100,000. (N.Y. County Dock. No.2001NY041680, dated
May 11, 2001).
*2 In response to the arrest, Noel Kramer cancelled all of
his wife's credit cards, changed all the joint bank accounts
over to his name, and stopped payments on Plaintiff's health
insurance. (Pl. Dep. at 174:17—183:15). On November 16,
2001, the charges against Plaintiff were dismissed after the
District Attorney's Office failed to prosecute.
B. Procedural History
On April 29, 2002, Plaintiff filed an action against the
City, the NYPD, Oliviera, and Noel Kramer in New York
County Supreme Court. Kramer v. New York, No. 108657/02
(N.Y.Sup.Ct. Nov. 26, 2003). Plaintiff alleged that on May
10, 2001 she was falsely arrested and maliciously prosecuted
because of the accusations fabricated by Noel Kramer and
Oliviera. In response, Oliviera filed a motion for summary
judgment to dismiss the State Court action. On November 26,
2003, Judge Soto dismissed the malicious prosecution charge,
but the false arrest and imprisonment, intentional infliction of
emotional distress, libel/slander, and defamation of character
charges against Oliviera survived. Id.
On January 7, 2004, Plaintiff filed a Federal action based
on the same May 10, 2001 events. The action alleged that
Plaintiff's civil rights were violated, pursuant to 42 U.S.C.
§ 1983, and named the City, the NYPD, Kennedy, and
Oliviera as defendants. The City and NYPD consented to the
removal of the state-law action to federal court. On March 26,
2004, Judge Soto stayed the state law claims against Oliviera
and, pursuant to Plaintiff's request, dismissed the allegations
against Noel Kramer.
II. APPLICABLE STANDARD
A court will not grant a motion for summary judgment
unless it determines that there is no genuine issue of material
fact and the undisputed facts are sufficient to warrant
judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 322—23 (1986); Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing
summary judgment “may not rest upon the mere allegations
or denials of the adverse party's pleading, but ... must set forth
specific facts showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e). In determining whether there is a genuine
issue of material fact, the Court must resolve all ambiguities,
and draw all inferences, against the moving party. United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam
); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d
54, 57 (2d Cir.1987). It is not the court's role to resolve
issues of fact; rather, the court may only determine whether
there are issues of fact to be tried. Donohue, 834 F.2d at 58
(citations omitted). However, a disputed issue of material fact
alone is insufficient to deny a motion for summary judgment,
the disputed issue must be “material to the outcome of the
litigation,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d
Cir.1986), and must be backed by evidence that would allow
“a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
III. DISCUSSION
*3 Pursuant to Fed.R.Civ.P. 56, Defendants move for
summary judgment contending that at this stage of the
litigation: plaintiff's false arrest claim should be dismissed
because there was probable cause; plaintiff's malicious
prosecution claim is barred by the doctrine of collateral
estoppel, the Rooker–Feldman doctrine, and also fails as
a matter of law; plaintiff fails to state a claim under
the Equal Protection and Due Process Clauses of the
Fourteenth Amendment; any purported conspiracy claim
must be dismissed; Detective Patrick Kennedy is entitled to
qualified immunity; and, plaintiff's state law claims should be
dismissed as a matter of law.
A. False Arrest
Plaintiff alleges that Kennedy lacked the requisite information
that would lead a reasonable person to conclude that Plaintiff
had committed or is about to commit a crime and, therefore,
failed to have probable cause to justify an arrest. See Boyd
v. City of N.Y., 336 F.3d 72 (2d Cir.2003). Plaintiff's § 1983
claim for false arrest “derives from an individual's right
to remain free from unreasonable seizures.” Caldarola v.
Calabrese, 298 F.3d 156 (2d Cir.2002). This includes the right
to remain free from arrest absent probable cause. Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir.1996). When reviewed in
the light most favorable to Plaintiff, Saucier v. Katz, 533
U.S. 194, 201 (2001), the complaint alleges that the police
arrested Plaintiff without probable cause in violation of the
constitution. Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997)
(“The right not to be arrested without probable cause is a
clearly established right.”).
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However, at the time of the arrest, it was “equally well
established that the existence of probable cause is an absolute
defense to a false arrest claim and affords the arresting officer
qualified immunity from litigation.” Caldarola, 298 F.3d at
162. “Probable cause is a complete defense to a cause of
action for false arrest.” Smith v. Edwards, 175 F.3d 99, 105 (2d
Cir.1999) (internal citation omitted). “Probable cause exists
when an officer has knowledge or reasonably trustworthy
information sufficient to warrant a person of reasonable
caution in the belief that an offense has been committed by
the person to be arrested.” Savino v. City of N.Y., 331 F.3d 63,
77 (2d Cir.1999) (internal citation omitted).
Noel Kramer walked into the 17 th Precinct on May 10, 2001
and alleged that his wife was attempting to murder him. In
support of his allegations, Noel Kramer informed the police
of (1) consistent illness which he believed resulted from
his wife's food preparation; (2) his wife's unwillingness to
allow anyone but herself to prepare his dinner; and, (3) a
deteriorating marriage. Noel Kramer also provided the police
with information regarding lab results that indicated a high
level of arsenic in his blood and corroboration of the test
results by a nurses' aid. (Pl. Dep. at 123:23—124:9; NYPD
Compl. Rep. # 2001–17–0032932). Taken together, these
allegations establish probable cause to arrest Plaintiff and
“there can be no claim for false arrest where the arresting
officer had probable cause to arrest the plaintiff.” Escalera v.
Lunn, 361 F.3d 737, 743 (2d Cir.2004).
*4 Accordingly, this claim must be dismissed.
B. Qualified Immunity 2
Assuming arguendo that Plaintiff was falsely arrested, the
individual defendants are still entitled to qualified immunity.
Qualified immunity shields a government official acting in
an official capacity from suit for damages under Section
§ 1983 provided that the official did not violate “clearly
established rights of which an objectively reasonable official
would have known.” Kinzer v. Jackson, 316 F.3d 139, 143
(2d Cir.2003). “A qualified immunity defense is established
if (a) the defendant's action did not violate clearly established
law, or (b) it was objectively reasonable for the defendant to
believe that his action did not violate such law.” Kent v. Katz,
312 F.3d 568, 573 (2d Cir.2002). The focus of a qualified
immunity analysis is on “objective circumstances rather than
an officer's subjective motivation.” Bradway v. Gonzales, 26
F.3d 313, 319 (2d Cir.1994) (citation omitted). “The Supreme
Court has stated that the immunity accorded officials by this
doctrine protects all but the plainly incompetent or those
who knowingly violate the law, and added that if officers
of reasonable competence could disagree on the legality of
an act, immunity should be recognized.” Lowth v. Town of
Cheektowaga, 82 F.3d 563, 569 (2d Cir.1996).
Moreover, even if Plaintiff's constitutional rights were
violated, Detective Kennedy is still entitled to qualified
immunity because of Kennedy's “belief that his conduct was
lawful was reasonable.” Cowan, 352 F.3d at 762. See also
Saucier, 533 U.S. at 202 (“Officers can have reasonable, but
mistaken, beliefs as to the facts establishing the existence of
probable cause or exigent circumstances, for example, and in
those situations courts will not hold that they have violated
the Constitution.”).
Accordingly, Defendant Kennedy is entitled to qualified
immunity.
C. Malicious Prosecution Claim
Under New York law, collateral estoppel occurs if “(1) the
issue in question was actually and necessarily decided in a
prior proceeding, and (2) the party against whom the doctrine
is asserted had a full and fair opportunity to litigate the issue
in the first proceeding.” Vargas v. City of N.Y., 377 F.3d
200, 204 (2d Cir.2004). When claimed, the moving party
must demonstrate that the non-moving party's previous claim
was actually and necessarily decided and that Plaintiff had
a full and fair opportunity to litigate those issues. Colon v.
Coughlin, 58 F.3d 865, 869 (2d Cir.1995).
As I have previously noted, “under the Rooker–Feldman
doctrine, lower federal courts lack subject matter jurisdiction
over claims that effectively challenge state court judgments,”
based on comity and the firmly-established principle that only
the Supreme Court can review a final decision of a state court.
Allianz Ins. Co. v. Cavagnuolo, No. 03 Civ. 1636, 2004 WL
1048243 at *4 (S.D.N.Y. May 7, 2004) (Baer, J.) (citing to
Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir.2002)). 3
The essence of the Rooker–Feldman doctrine “is that inferior
federal courts have no subject matter jurisdiction over cases
that effectively seek review of judgments of state courts
and that federal review, if any, can occur only by way of a
certiorari petition to the Supreme Court.” Moccio v. New York
State Office of Court Admin, 95 F.3d 95, 197 (2d Cir.2000).
Rooker–Feldman bars those claims that were adjudicated in
a prior state court action, as well as those claims that are
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“inextricably intertwined” with the state court judgment. We
have held that “inextricably intertwined means, at a minimum,
that where a federal plaintiff had an opportunity to litigate
a claim in a state proceeding ... subsequent litigation of the
claim will be barred under the Rooker–Feldman doctrine if it
would be barred under the principles of preclusion.” Santini
v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d 118, 126
(2d Cir.2003) (quoting and citing Moccio, 95 F.3d at 197).
This doctrine protects the integrity of state court judgments
and must, therefore, be invoked “if adjudication of a claim
in federal court would require the court to determine that a
state court judgment was erroneously entered or was void.”
Kropelnicki, 290 F.3d at 129.
*5 The Plaintiff's claim for malicious prosecution, which
followed the November 16, 2001 dismissal of the criminal
case, necessitates federal court review of the state court's
determination of Plaintiff's civil complaint issued on
November 26, 2003. In particular, New York State Supreme
Court Judge Soto adjudicated, among other things, the
malicious prosecution claim and entered a final judgment:
On this cause of action [Malicious
Prosecution], the complaint on its face
fails to allege an essential element
—the termination of the criminal
proceedings in plaintiff's favor, which
has been held to mean a termination on
the merits. Failure to establish any one
of the four requisite elements defeats
the entire claim.”
Kramer v. New York, No. 108657/02 (N.Y.Sup.Ct. Nov. 26,
2003). The decision constitutes a final judgment for the
purposes of the Rooker–Feldman doctrine. See Alleyne v.
City of N.Y., 225 F.Supp.2d 391, 394 (S.D.N.Y.2002) (holding
that “a party may not evade these rules and principles of
federalism by recasting his claims pending in state court as
a civil rights action under 42 U.S.C. § 1983.”). Plaintiff has
had an opportunity to litigate the claim already once in state
court and now seeks a second bite at the apple in federal
court. In order to succeed on the malicious prosecution claim,
this Court would have to overturn the state court decision
and “[a] plaintiff ... ‘may not seek a reversal of a state court
judgment simply by casting his complaint in the form of a
civil rights action’.” Brooks–Jones v. Jones, 916 F.Supp. 280,
281—282 (S.D.N.Y.1996). Accordingly, Plaintiff's malicious
prosecution claims must be dismissed.
Accordingly, Plaintiff's malicious prosecution claim must be
dismissed.
D. Fourteenth Amendment Violation
Plaintiff argues that the Defendants violated her rights under
the Fourteenth Amendment by favoring the allegations of
Oliviera over Plaintiff. To establish an equal protection
violation, plaintiffs must prove purposeful discrimination,
McCleskey v. Kemp, 481 U.S. 279, 292 (1987), directed at
an identifiable or suspect class. Giano v. Senkowski, 54 F.3d
1050, 1057 (2d Cir.1995).
Plaintiff's equal protection claim is facially deficient. An
equal protection claim requires “purposeful discrimination,
directed at an identifiable or suspect class.” Id. at 1057
(internal citation omitted). Kramer has made no such class
allegation. Instead, Plaintiff's claim is based on the particular
circumstances of her arrest. While it is possible for Plaintiff
to allege a “class of one, where the plaintiff alleges that she
has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment,” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000), Plaintiff is “required to show either that there was no
rational basis for the unequal treatment received or that the
denial of the application was motivated by animus.” Harlen
Assoc. v. Vill. of Mineola, 273 F.3d 494, 500 (2d Cir.2001)
(internal citation omitted).
*6 Plaintiff has failed to present any evidence of unequal
treatment sufficient to defeat summary judgment. See Foy
v. City of N.Y., No. 03 Civ. 7318, 2004 WL 2033074
(S.D.N.Y. Sept. 10 2004) (Baer, J.). Indeed, the available
evidence demonstrates the Plaintiff's “arrest was not arbitrary,
irrational, or motivated by animus of any sort.” Id., 2004
WL 2033074 at *3. As was already stated, see supra at 4–
5, the police officers had probable cause to arrest Plaintiff
and received fair and equal treatment. Accordingly, this claim
must be dismissed.
E. Impermissible Search Leading to Damage to Reputation
Plaintiff alleges that, because of the NYPD's unlawful
entrance and search of Plaintiff's apartment and handbag,
Plaintiff's reputation in the community was impaired and she
was otherwise injured. (Complaint, ¶ 20).
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The Supreme Court stated that reputation alone is not a
protected liberty interest. Siegert v. Filley, 500 U.S. 226, 233
(1991). Plaintiff must demonstrate damage to her reputation
“coupled with some other tangible element in order to rise
to the level of a protectable liberty interest.” Valmonte v.
Bane, 18 F.3d 992, 999 (2d Cir.1994). This requirement
is commonly known as “stigma plus.” Valmonte, 18 F.3d
at 999. Defamation or damaged reputation alone fails to
trigger a constitutional deprivation of a liberty interest. See
Siegert v. Gilley, 500 U.S. 226, 233–34 (1991). “The stigma
prong requires [Plaintiff] to show that the ... defendants'
statements [or action] will result in stigma, public opprobrium
and damage to [her] reputation.” Martinez v. City of N .Y.,
No. 00 Civ. 7914, 2003 WL 2006619 at *6 (S.D.N.Y. Apr.
30, 2003). If Plaintiff demonstrates sufficient stigma, she
must also satisfy the “plus” requirement. In the Section 1983
context, a plaintiff who alleges governmental defamation
must demonstrate:
The utterance of a statement about him
or her that is sufficiently derogatory
to injure his or her reputation, that is
capable of being proved false, and that
he or she claims is false, and some
tangible and material state-imposed
burden or alteration of his or her
status or of a right in addition to the
stigmatizing statement.
Paul v. Davis, 424 U.S. 693, 701–702 (1976).
Here, the stigma-plus standard is not satisfied. Plaintiff fails
to demonstrate that Defendants, as state actors, “altered or
extinguished a right or status that was previously recognized
under state law.” Avello v. Hammons, 963 F.Supp. 262,
266 (S.D.N.Y.1997). Plaintiff has never attempted to obtain
employment (Pl. Dep. at 196:21—24) and the pecuniary loss
she suffered was a direct result of Noel Kramer's decision
to cease financial support. (Pl. Dep. at 97:22—98:24; 172:19
—183:15). Furthermore, Plaintiff has not presented any
evidence that would suggest that Plaintiff has been unable to
garner employment. Any pecuniary loss cannot be attributed
to the Defendants and, as such, Plaintiff cannot establish
anything more than purported damage to her reputation
resulting from her arrest.
*7 Accordingly, Plaintiff's damage to reputation must be
dismissed.
F. Conspiracy Claim
Plaintiff alleges that under the circumstances, the friendship
between Oliviera and Noel Kramer permit an inference that
there was a meeting of the minds sufficient to establish a
conspiracy liability theory.
To demonstrate a 42 U.S.C. § 1983 conspiracy, a plaintiff
must show: “(1) an agreement between two or more state
actors or between a state actor and a private entity; (2) to
act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages.”
Ciambriello v. County of Nassau, 292 F.3d 307, 324—25 (2d
Cir.2002). In Ciambriello, the Second Circuit explained that
“complaints containing only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy
to deprive the plaintiff of his constitutional rights are properly
dismissed; diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct.” Id. 4
The Second Circuit deemed the factual allegations inadequate
in Ciambriello because plaintiff had “not provided any details
of time and place and failed to specify in detail the factual
basis necessary to enable defendants intelligently to prepare
their defense.” Hernandez v. Goord, 312 F.Supp.2d 537, 546
(S.D.N.Y.2004). 5 While Section 1983 claims “are by their
very nature secretive operations, and may have to be proven
by circumstantial, rather than direct, evidence,” Hernandez,
312 F.Supp.2d at 546, “[c]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Smith v. Local 819
I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002).
While Plaintiff extensively itemizes each instance of Noel
Kramer interacting with the police department and Oliviera,
neither the Complaint nor opposition to Defendants' motion
for summary judgment articulates a single example of an
impermissible agreement or quid pro quo arrangement.
Plaintiff fails to present even a scintilla of evidence regarding
the existence, or even inference, of any specific agreement
to violate Plaintiff's rights, whether such an agreement was
entered into, the nature of the agreement, or specific acts in
furtherance of the agreement. Friendship alone is insufficient
to support the existence of a conspiracy.
Accordingly, Plaintiff's conspiracy claim must be dismissed.
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G. State Law Claims
1. Libel and Slander
According to Plaintiff, Detective Kennedy and the NYPD
disclosed false and defamatory information regarding
Plaintiff to various newspapers. In particular, Plaintiff points
to a May 15, 2001 New York Daily News article, which
identified Plaintiff, her alleged attempt to poison her husband,
her husband's sickness every time his wife cooked for him,
her unwillingness to permit others to prepare food, and Noel
Kramer's wealth. (Pl.Ex. O). Plaintiff also points to a New
York Times article that paints a similar picture.
*8 In order to establish a prima facie case for slander or
libel under New York law, “all of the following elements
are required: (1) a false and defamatory statement of and
concerning the plaintiff; (2) publication by defendant of such
a statement to a third party; (3) fault on part of the defendant;
and, (4) injury to plaintiff.” Idema v. Wager, 120 F.Supp.2d
361, 365 (S.D.N.Y.2000).
However, New York law recognizes “an absolute and
qualified privilege for law enforcement personal, depending
on the circumstances, and requires a showing of actual malice
before a plaintiff will be allowed to prevail in a defamation
action.” Regan v. Sullivan, 557 F.2d 300, 309 n. 11 (2d
Cir.1977). To overcome the qualified privilege:
[T]he plaintiff must challenge the
defendant's good faith and allege
that [ ]he acted either with actual
malice (i.e., [ ]he made a defamatory
statement with the knowledge that it
was false or with reckless disregard
as to whether it was false), or with
common law malice (i.e., [ ]he made
the defamatory statement solely with
the desire to injure the plaintiff).
Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1165
(E.D.N .Y.2003). Mere allegations of libel and slander are
not enough. Shamley v. ITT Corp., 869 F.2d 167, 173 (2d
Cir.1989). A plaintiff must present evidentiary facts that
support this conclusion. Id. To survive a motion for summary
judgment, a plaintiff must present “evidence in admissible
form sufficient to raise a triable issue whether the statements
were made with malice.” County Vanlines, Inc. v. Experian
Info. Solutions, Inc., 317 F.Supp.2d 383, 389 (S.D.N.Y.2004).
“A plaintiff does not make the requisite showing of malice
simply by conclusorily labeling the defamation malicious.”
Id. at 390 (citing to Shamley v. ITT Corp., 869 F.2d 167,
173 (2d Cir.1989)). A plaintiff must present evidentiary
facts that support this conclusion. Id. “This burden may
not be met by surmise, conjecture and suspicion nor by
mere conclusions, expressions of hope or unsubstantiated
allegations or assertions.” Id.
Assuming the statements made to the newspapers by law
enforcement personnel were false, the Complaint fails to
allege that the statements were made with the requisite malice.
Malice, which “means spite or ill will,” defeats the privilege
“only if it is the one and only cause for the publication.”
Id. at 390 (collecting cases). Plaintiff failed to present a
scintilla of evidence that would suggest the police falsely
commented on the incident out of spite or because of any
ill will towards Plaintiff. The Defendants' statements were
“neither gratuitous nor irrelevant references to a prior incident
that allegedly involved plaintiff.” Lee v. City of Rochester, 677
N.Y.S.2d 848, 851 (N.Y.A.D. 4 Dep't 1998). The references
to Plaintiff, assuming erroneous, were germane to the police
investigation and “[a] police officer may give details of past
and present incidents that would interest or affect the public.”
Id. Absent any evidence that the comments made to the
press regarding Plaintiff were made in spite or ill will, the
officer's statements appear to have merely been a reasonable
mistake and, therefore does not establish either constitutional
or common-law malice. 6
*9 Accordingly, Plaintiff's libel and slander claim must be
dismissed.
2. Invasion of Privacy
Plaintiff claims an invasion of privacy from the NYPD's
unlawful entrance into Plaintiff's apartment and the searches
of her person, her purse, and the apartment. (Pl. Dep. at 21).
The record is unclear whether the police actually entered
the apartment to arrest Plaintiff. 7 In her deposition, Plaintiff
alleged that she refused the police entry into her apartment
when they sought to arrest her on May 10, 2001, and that
the police in response forcibly took her from the entrance
of her apartment to arrest her (without actually entering the
apartment). (Pl. Dep. at 137:6—140:25). The Supreme Court
has held that arrest warrants are required to arrest suspects
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within their homes, absent consent or exigent circumstances.
Payton v. New York, 445 U.S. 573 (1980).
The reasonableness of a police determination of consent to
enter is judged by the objective standard of whether the
facts available at the moment would warrant a person of
reasonable caution in the belief that the consenting party
had authority over the premises without a warrant. Illinois v.
Rodriguez, 497 U.S. 177 (1990). In this case, the owner of
the apartment and potential victim of the alleged crime gave
the police permission to enter the apartment when he filed
his complaint earlier on May 10, 2001. (Kennedy Dep. at
62:16—20; Hughes Dep. at 23:22—24:14; 31:2—16). Thus,
whether or not the police entered Plaintiff's apartment to arrest
her, the entry was made on a reasonable belief of consent
to enter the apartment by a person with actual authority to
grant such consent. Without a Fourth Amendment violation
in the manner of her arrest or the entry into her apartment,
defendants did not violate Plaintiff's reasonable expectations
of privacy.
Accordingly, Plaintiff's invasion of privacy claim must be
dismissed.
3. Intentional Infliction of Emotion Distress
Under New York law, to state a claim for intentional
infliction of emotional distress, Plaintiff must demonstrate:
“(1) extreme and outrageous conduct; (2) intent to cause,
or reckless disregard of a substantial probability of causing,
severe emotional distress; (3) a causal connection between the
conduct and the injury; and, (4) severe emotional distress.”
Hart v. Westchester County Dep't of Soc. Serv., 160 F.Supp.2d
570, 579 (S.D.N.Y.2001). “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 society.” Arena v. Agip, No. 95
Civ. 1529, 2000 WL 264312 at *4 (S.D.N.Y. Mar. 8, 2000)
(emphasis added).
There is no evidence in the record from which a fair-minded
trier of fact could reasonably conclude that the conduct of
these defendants constitutes either extreme or outrageous
conduct. See, e.g., Rall v. Hellman, 726 N.Y.S.2d 629 (1st
Dep't 2001); Andrews v. Bruk, 631 N.Y.S.2d 771 (2d Dep't
1995). Under the facts presented here, see supra at 4–11,
the Court concludes that the record lacks any evidence even
remotely satisfying this rigorous threshold and upon which a
rational fact-finder could find liability. Brown v. City of N.Y.,
306 F.Supp.2d 473, 481 (S.D.N.Y.2004).
*10 Accordingly, Plaintiff's claim of intentional infliction of
emotional distress must be dismissed.
4. Unlawful Strip Search
Plaintiff contends that when she was forced to expose her
derrière, the police officers engaged in an unlawful strip
search while at the police precinct.
The Constitution mandates that searches of individuals,
even those arrested or incarcerated, be reasonable under the
circumstances. Bell v. Wolfish, 441 U.S. 520, 559 (1979).
The reasonableness of a strip search turns on the scope of
the intrusion, the manner in which the search is conducted,
the justification for initiating the search, and the place in
which the search is conducted. Id. (citations omitted). The
Fourth Amendment prohibits strip/body cavity searches of
arrestees charged with misdemeanors or other minor offenses
absent a “reasonable suspicion that the arrestee is concealing
weapons or other contraband based on the crime charge,
the particular characteristics of the arrestee, and/or the
circumstances of the arrest.” Weber v.. Dell, 804 F.2d 796, 802
(2d Cir.1986). Several courts within this circuit have applied
this particularized or individualized reasonable suspicion test
to strip searches of felony arrestees. See Sarnicola v. County
of Westchester, 299 F.Supp.2d 259, 270 (S.D.N.Y.2002)
(holding that the mere arrest for felony drug charges does
not permit strip search absent reasonable suspicion that the
individual is secreting drugs or other contraband within body
cavities); Murcia v. County of Orange, 226 F.Supp.2d 489,
494 (S.D.N.Y.2002) (policy to strip search felony arrestees
arriving at correction facility is unconstitutional).
In this case, the officer satisfies even a heightened standard
of particularized reasonable suspicion that the plaintiff was
secreting contraband within her body cavity. Plaintiff was
arrested for attempted murder. Plaintiff was alleged to have
attempted to murder her husband by poisoning him with
arsenic, a substance that is capable of being carried in a
container small enough to be hidden in a body cavity. See
Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir.1992) (drugs and
contraband often found in body cavities); Storms v. Coughlin,
600 F.Supp. 1214, 1219 (S.D.N.Y.1984) (same); see also
48 AMJUR POF 2d 431 at § 1 (description of arsenic).
Perhaps most significant is the fact that plaintiff was searched
only upon the two occasions she indicated she had to use
the restroom. (Pl. Dep. at 154:16—155:17). This raised the
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reasonable suspicion that plaintiff may have been secreting
arsenic or other contraband within her and would take the
opportunity to use the restroom to expunge it.
Additionally, the nature of the strip search itself was not
unreasonable. The scope of the search was minimal insofar
as plaintiff was only requested “to bear” her “derriere.” (Pl.
Dep. at 154:22). She was not forced to undergo a visual body
cavity search. See Sec. and Law Enforcement Empl. v. Carey,
737 F.2d 187, 207—08 (2d Cir.1984) (distinguishing strip
searches from more intrusive visual body cavity searches).
She was not even asked to disrobe. Moreover, the search was
conducted by a female officer in a holding cell without anyone
else present. (Pl. Dep. at 154—55.) There is also evidence
of the reasons for the search. The plaintiff testified she was
not searched in any way when she first was placed in the
holding cell. (Pl. Dep. at 155:6—10). It was only upon each
of her two requests to use the restroom that she was searched
by the officer, presumably suspicious that such requests were
really efforts to destroy hidden contraband. (Pl. Dep. at 154
—155). The search was thus not gratuitous or unjustified.
Although one court in this jurisdiction has utilized a list of
factors to be assessed under Weber's particularized reasonable
suspicion test, see Sarnicola, 299 F.Supp.2d at 271—74, the
circumstances here are nevertheless adequate to satisfy that
test. The search of plaintiff was not unreasonable.
*11 Accordingly, Plaintiff's claim of unlawful strip search
must be dismissed
5. Assault and Battery
The Plaintiff alleges that she suffered an assault and battery
when the Detectives pushed and handcuffed her, as the
handcuffs caused her to suffer black and blue marks, pain, and
swelling. (Pl. Dep. at 139:16—19; 141:1—7).
In the context of state officers performing their lawful duties,
New York State law regarding assault and battery parallels
the federal laws regarding excessive force. Green v. City of
N.Y., No. 01 Civ.1996, 2004 WL 213009 at *3 (S.D.N.Y.
Jan. 5, 2004). 8 Under federal or state law, a plaintiff must
demonstrate that “the amount of force used was objectively
unreasonable” based upon a consideration of “the perspective
of the officer at the time of the arrest.” Anthony v. City of N.Y.,
No. 00 Civ. 4688, 2001 WL 741743 at *13 (S.D.N.Y. Jul. 2,
2001) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563,
573 (2d Cir.1996)). Where there has been an unlawful arrest,
any degree of force is unreasonable and excessive. See Black
v. Town of Harrison, No. 02 Civ.2097, 2002 WL 31002824 at
*6 (S.D.N.Y. Sep. 5, 2002).
Here, we have already determined that the Detectives had
probable cause and Plaintiff's arrest was lawful. See supra at
4. As Plaintiff does not allege that the officers used excessive
force during the arrest, her claim of assault and battery should
be dismissed. 9 Assuming an allegation of excessive force,
the Plaintiff has not offered any evidence to show that the
any force used against her was objectively unreasonable and
the record supports the officers extremely limited use force
when arresting her. While the Plaintiff states that she only
complained to the officers who drove her from the 17 th
Precinct to Central Booking at Centre Street about how the
tightness of the handcuffs (Pl. Dep. at 153:6—12) and the
Plaintiff admitted that she did not tell Kennedy or the other
detectives that arrested her that the handcuffs were too tight
during her journey to the 17 th Precinct. (Pl. Dep. at 152:12
—24; 153:2—5). In addition, the Plaintiff admits that she
did not sustain any physical injuries when the Detectives
“pushed” her out of the apartment. (Pl. Dep. at 140:22—25).
The Plaintiff's statements strongly imply that force was not
used at all, much less unreasonable force, as the manner in
which the Plaintiff was pushed did not hurt her at all, and the
manner in which the Plaintiff was handcuffed clearly did not
injure her at the time.
Accordingly, Plaintiff's claim of assault and battery should be
dismissed.
6. Negligent Hiring and Retention
Plaintiff's claim that City and NYPD carelessly and recklessly
hired, retained, trained, supervised, and promoted the officers
who investigated and/or arrested the Plaintiff as well as
Oliveira. The result of City and NYPD's negligent practices
were the intentional torts listed above.
a. Detective Kennedy, Shield 2041, and Unidentified NYC
Police Officers
*12 The City concedes that the individual defendants were
employed by it on the date in question and, with the exception
of Oliviera, acted within the scope of their employment. (Pl.
Mtn. Sum. J. at 22). Plaintiff, therefore, has no claim for
negligent training and supervision in light of this concession.
Colodney v. Continuum Health Partners, Inc., No. 03 Civ.
7276, 2004 WL 829158 at *9 (S.D .N.Y. Apr. 15, 2004)
(holding that “[w]hen an employee is acting within the scope
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of her employment, her employer may be held liable for
the employee's negligence only under a theory of respondeat
superior, and no claim may proceed against the employer for
negligent hiring or retention.”). 10
b. Oliviera
The Plaintiffs' claims for negligent hiring, retention, and
supervision cannot provide a basis for liability against
Oliviera. Under New York law, a plaintiff cannot establish
a negligent hiring claim when the alleged employee acted
outside the scope of his employment and was not under the
City's supervision or control. Estevez–Yalcin v. Children's
Vill., 331 F.Supp.2d 170 (S.D.N.Y.2004). The “employer is
only liable for the actions of an employee where the employee
was engaged in the furtherance of the employer's business
and the employer was, or could have been, exercising some
control, directly or indirectly, over the employee's activities.”
Mahmood v. City of N.Y., No. 01 Civ. 5899, 2003 WL
21047728 at *2—3 (S.D.N.Y. May 8, 2003). As this district
recently noted:
[A]n employee's actions are not within
the scope of employment unless the
purpose in performing such actions is
to further the employer's interest, or to
carry out duties incumbent upon the
employee in furthering the employer's
business. Thus, where an employee's
conduct is brought on by a matter
wholly personal in nature, the source
of which is not job-related, his actions
cannot be said to fall within the scope
of his employment.
Id., 2003 WL 21047728, at *2—3 (citations omitted).
Here, the issue is whether Noel Kramer's friend and police
officer, Oliviera, acted in his official capacity when he
accompanied Noel Kramer to the police station. (Pl.Ex. Q, 54
—56). The facts indicate that Oliviera acted in his personal
capacity as a friend of Noel Kramer and not as a New
York City police officer. First, Oliveira was off-duty when
he made the decision to go to the 17 th Precinct with Noel
Kramer. (Heiman Dep. at 166:9—10). Second, no NYPD
supervisor authorized Oliviera to go to the 17 th Precinct with
Noel Kramer. (Sullivan Dep. at 166:5—7). Third, Oliviera
never spoke in his official capacity or acted on behalf of
the NYPD while at the police station. Fourth, Oliviera never
assisted with the search, spoke with any of the detectives, or
carried an official assignment when you testified at Plaintiff's
arraignment. (Sullivan Dep. at 166:12—167:14). It is well-
settled that conduct “where an employee's conduct is brought
on by a matter wholly personal in nature, the source of which
is not job-related, his actions cannot be said to fall within the
scope of his employment” and, therefore, this claim must be
dismissed.
IV. CONCLUSION
*13 For all of the foregoing reasons, Plaintiff's motion for
Summary Judgment is GRANTED. The Clerk is instructed to
close this motion and any other open motions and remove this
case from my docket.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2004 WL 2429811
Footnotes
1 In addition, for the sake of judicial economy, Defendant Oliveira's Motion to Dismiss will be adjudicated in
tandem with NYC's motion for summary judgment. See Ellis v. Guarino, No. 03 Civ. 6562, 2004 WL 1879834
(S.D.N.Y. Aug. 24, 2004).
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2 The determination of whether police officers are entitled to qualified immunity is to be determined independent
of the merits of the underlying action. Washington Square Post # 1212 v. Madura, 907 F.2d 1288, 1297 (2d
Cir.1990) (citation omitted).
3 This Court has no authority to review final judgments of a state court judicial proceeding, except for general
constitutional challenges and reviews pursuant to an application for a writ of habeas corpus. Rooker v. Fidelity
Trust Co., 263 U.S. 413, 415–16 (1923); D.C. Ct. of App. v. Feldman, 460 U.S. 462, 482—86 (1983). Thus,
“[a] plaintiff ... ‘may not seek a reversal of a state court judgment simply by casting his complaint in the form
of a civil rights action’.” Brooks–Jones v. Jones, 916 F.Supp. 280, 281—282 (S.D.N.Y.1996).
4 See Toussie v. Powell, 323 F.3d 178, 185 n. 3 (2d Cir.2003) ( “[W]e do not have occasion to examine the
pleading requirements for [Section] § 1983 conspiracy claims. In particular we do not consider whether our
previous statements on the pleading requirements for such conspiracy allegations, ... [requiring more than
conclusory allegations to avoid dismissal] ... remain valid in light of ... Leatherman v. [Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163 (1993) ] ... and Swierkiewicz [v. Sorema N.A., 534 U.S.
506 (2002) ]....”).
5 See also Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993).
6 Under the New York Times standard, a plaintiff need not prove that actual ill will was the sole motivating factor
for the publication of the defamatory statement, but “must demonstrate that the statements [were] made with
[a] high degree of awareness of their probable falsity.... In other words, there must be sufficient evidence to
permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the] publication .”
Liberman v. Gelstein, 80 N.Y.2d 429, 438 (1992) (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)
and St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). Accordingly, a defendant must act with “reckless
disregard” for the truth. Liberman, 80 N.Y.2d at 439. See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 289–92
(1971) (finding that deliberate omission of the word “allegation” or its equivalent in an article describing a
government report, while erroneous, was insufficient to create a jury issue regarding actual malice); Reliance
Ins. Co. v. Barron's, 442 F.Supp. 1341, 1350 (S.D.N.Y.1977). (“We must affirm the longstanding principle that
inaccuracy itself will not demonstrate actual malice in a libel case.”); Suozzi v. Parente, 616 N.Y.S.2d 355,
359 (1st Dep't 1994) (holding that “misinterpretation of a source or the resolution of an ambiguity adversely
to the plaintiff or in accordance with a particular political view” does not constitute actual malice)
7 While Plaintiff testified at her deposition that the police never actually entered the apartment, Officer Kennedy,
in his deposition, claimed that the police did enter. (Kennedy Dep. at 66:7).
8 Under New York law, an assault is an intentional placing of another person in fear of imminent harmful or
offensive contact. Girden v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir.2001). A battery is an intentional wrongful
physical contact with another person without consent. Id. at 203. An assault claim must allege facts that
support a finding that the defendant intentionally placed the plaintiff in reasonable fear of imminent harmful or
offensive bodily contact. Black v. Town of Harrison, No. 02 Civ.2097, 2002 WL 31002824 at *6 (S.D.N.Y. Sept.
5, 2002). To sustain a battery claim, a plaintiff must introduce evidence tending to show that the defendant
intentionally and wrongfully engaged in physical contact with the plaintiff without the plaintiff's consent. Id.,
2002 WL 31002824 at *5.
9 As the plaintiff, in her complaint, does not allege facts that indicate that the officers used “objectively
unreasonable force” against her during the arrest, but simply alleges that that the officers' contact in arresting,
handcuffing and transporting her was “unnecessary and unlawful and was offensive” to her, (State Complaint,
Paragraphs 23–26) there is no need to evaluate her claim under an “objectively unreasonable” standard. See
Black v. Town of Harrison, No. 02 Civ.2097, 2002 WL 31002824 at *6 (S.D.N.Y. Sept. 5, 2002) (where the
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court found that the Plaintiff was not solely relying on an unlawful arrest claim due to alleged facts indicating
that the police hit the Plaintiff's head upon a dresser, and left her handcuffed for 15 minutes).
10 See, e.g., Griffin v. City of N.Y., 287 F.Supp.2d 392 (S . D.N.Y.2003); see also Karoon v. N.Y.C. Transit
Auth., 659 N.Y.S.2d 27 (1st Dep't 1997).
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Leib-Podry v. Tobias, Not Reported in Fed. Supp. (2024)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1421152
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Phillip LEIB-PODRY, Plaintiff,
v.
Geofferey TOBIAS et al., Defendants.
22-cv-8614 (VEC)(JW)
|
Signed February 13, 2024
Attorneys and Law Firms
Phillip Leib-Podry, New York, NY, Pro Se.
Amanda Leigh Tate, Juan C. Gonzalez, Rubin Paterniti
Gonzalez Rizzo Kaufman, LLP, New York, NY, for
Defendant Geoffrey Tobias.
Caryn Leslie Lilling, Katherine Herr Solomon, Mauro
Goldberg & Lilling, LLP, Woodbury, NY, for Defendants
Princeton Insurance Company, MedPro Group, Berkshire
Hathaway.
REPORT & RECOMMENDATION
JENNIFER E. WILLIS, United States Magistrate Judge.
*1 TO THE HON. VALERIE E. CAPRONI, United
States District Judge:
Pro se Plaintiff Leib-Podry filed this lawsuit on October 7,
2022. Dkt. No. 2. Liberally construed, Plaintiff's complaint
asserts state law causes of action for (i) medical malpractice,
(ii) battery, (iii) sexual assault, (iv) conspiracy, and a federal
claim for (v) unfair trade practices. See generally Dkt. No. 2;
see also Dkt. No. 5 1 ; see also Defendant's Memorandum of
Law, Dkt. No. 35 at 10 (acknowledging Plaintiff's Complaint
“liberally construed” asserts these causes of action); see also
Insurance Defendant's Memorandum of Law, Dkt No. 40 at 32
(acknowledging Plaintiff's Complaint “liberally construed”
may assert a claim for unfair trade practices). In December
2022, the case was referred to this Court for all dispositive
motions. Dkt. No. 7.
On June 1, 2023, Defendants Geoffery Tobias, Berkshire
Hathaway, MedPro Group, and Princeton Insurance
Company moved to dismiss 2 the Complaint. Dkt. Nos. 33,
38. On July 26, 2023, Plaintiff submitted an Opposition to the
Motions to Dismiss. Dkt. No. 49. Defendants submitted their
Replies in August 2023. Dkt. Nos. 56, 58.
*2 Because each of Plaintiff's claims is either time-barred,
fails to state a claim, or is factually frivolous, Defendants’
Motions to Dismiss should be GRANTED.
I. BACKGROUND
Plaintiff's three-and-a-half page complaint alleges many facts,
some relevant and others entirely extraneous to the allegations
in this case. See generally Dkt. No. 2. Typically a court
must accept the facts in the complaint as true at the motion
to dismiss stage, but a court is allowed to reject facts and
allegations that it deems frivolous and irrational. Denton v.
Hernandez, 504 U.S. 25, 33 (1992); Gallop v. Cheney, 642
F.3d 364, 368 (2d Cir. 2011); see also Neitzke v. Williams,
490 U.S. 319, 324-25 (1989). For reasons stated more fully
below, I find the facts in this Complaint to be frivolous and
irrational.
Plaintiff alleges the events described in the Complaint
occurred “between January 23, 2017 and the present time”
and April 2017 in locations in “New York County ... and
locations in Englewood New Jersey ...” Dkt. No. 2 at
1. The Complaint alleges that Plaintiff resides “in New
York County” and that Defendants “operate businesses from
outside New York State.” Dkt. No. 2 at 1. Plaintiff says that
“all appointments before the [medical] procedure took place
at 815 Park Avenue” and also asserts that certain other events
occurred “at 815 Park Avenue” and “at Englewood Hospital”
but does not otherwise specify where many of the alleged
events occur.
Plaintiff's primary claim, which takes up the majority of space
in the Complaint, alleges that Defendant Dr. Tobias performed
an “extremely dangerous procedure” on Plaintiff's nose using
a “nylon plastic suture,” which Plaintiff describes as “an
exceedingly dangerous and wholly unacceptable procedure
that has no purpose whatsoever but to harm the patient.”
Dkt. No. 2 at 1. Plaintiff alleges that Dr. Tobias “needlessly
remov[ed] a significant portion of the internal structure” of
their nose, resulting in “[i]irritation and severe pain” and
“other physical damage to [Plaintiff's] face.” Id. at 2. Plaintiff
alleges that Defendant Tobias “appeared gratified and pleased
to have damaged [Plaintiff's] appearance.” Dkt. No. 2 at 3.
Plaintiff asserts that use of the nylon suture “falls far below
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existing standards of care.” Id. at 2. Later in the Complaint,
Plaintiff also indicates that the use of “these non-absorbable
polymers ... in any patient, would always cause [plaintiff] to
become a victim of others for a variety of reasons ...” Id.
Plaintiff also claims “without further surgery the procedure
is likely to lead to a malignancy (i.e. cancer) and the
risk continues to increase over time.” Dkt. No. 2 at 3.
Plaintiff alleges that since the surgery, Plaintiff has been
“harassed repeatedly and handcuffed without a substantiated
or legitimate reason by the police other than the alterations
in my appearance and voice, though other officers have been
both understanding and comforting toward me since that
time.” Additionally, Plaintiff claims that the nasal procedure
“led to repeated and countless rapes and assaults by others.”
Dkt. No. 2 at 3.
Plaintiff claims that he “did not consent to the surgical
procedure” but instead “was made to submit to the surgery
by compulsion.” Id. at 2-3 The compulsion is described as
“demeaning remarks” about Plaintiff's appearance, insistence
by Defendant Dr. Tobias that the surgery was necessary, and
a follow-up phone call from the doctor's assistant. Id.
*3 The Complaint next turns to Defendant Dr. Tobias’
insurers: Princeton Insurance, Berkshire Hathaway, and
the MedPro Group. While Plaintiff alleges “cosmetic
treatments ... can treat the effects of rape and abuse without
harming the patient or even asking the patient to speak,” in
this situation, insurance coverage of Defendant Dr. Tobias
allowed him to “perform unnecessary surgery.” Dkt. No.
2 at 2. Plaintiff alleges that “it is reasonable to presume
that Berkshire Hathaway companies provide coverage to
many doctors who perform similar ... reconstructive nasal
procedures that have no meaning or purpose other than to
defraud the patient.” Id. at 2. Plaintiff also claims, that the
“CEO of Berkshire Hathaway acts as one of the world's
foremost philanthropists, but it appears he has failed to direct
funds to the development of replacements for these outdated
polymers that cause children and vulnerable people who
would otherwise be advantaged to become victims of the rest
of the population on a grand scale, while the unnecessary
use of these polymers provides a pipeline of income to both
doctors and Berkshire Hathaway companies.” Dkt. No. 2 at 2.
Next, Plaintiff asserts that Dr. Tobias “sexual[ly] assault[ed]”
them. Id. at 3. Plaintiff claims Dr. Tobias’ “motivations”
in rendering medical “care” “were sexual, aggressive, and
malicious in nature.” Id. at 2. Plaintiff asserts “Dr. Tobias
wore a suit in his clinical practice during the appointments
before the procedure, which effectively prevented [Plaintiff]
from being able to sense these motivations.” Id. Plaintiff
also avers that on the date of the procedure, Dr. Tobias
“used his left hand to move the surgical gown [Plaintiff]
was wearing shortly before [Plaintiff] received anesthesia,
exposing [Plaintiff's] leg to [Dr. Tobias]. Further Plaintiff
alleges that during a follow-up appointment, Dr. Tobias
“breath[ed] heavily in [Plaintiff's] face,” and on another
occasion, “rubbed his genitals against” Plaintiff “when
[Plaintiff] stood up” to leave the examination room. Id.
Plaintiff also asserts that all this is “interrelated and can
be described as a conspiracy against [Plaintiff's] rights.”
Id. Plaintiff claims that Dr. Tobias’ assistant told Plaintiff
“to schedule surgery and return to his office,” adding that
after the procedure the assistant “joined [Dr. Tobias] in
the examination room and watched him examine” Plaintiff
and, that then “[b]oth this assistant and Geoffrey Tobias
sexually violated [him] on a scale far beyond what is easily
imaginable.” Id. Plaintiff alleges “others have repeatedly
mimicked those sexual and cruel behaviors when interacting
with [Plaintiff].” Id.
Plaintiff also says that “my physical qualities and appearance
have always been the only aspects of myself valued by others,
even though I skipped ahead in school, was proficient in
multiple programming languages by the 8th grade, and have
a variety of additional capacities.” Dkt No. 2 at 3. Plaintiff
also recounts that “my mother was found hanged by a rope
also made of nylon and died shortly thereafter when I was 15.
She had worked with ‘Bill’ Gates at Microsoft in fundamental
roles that included designing MSN ‘the Microsoft Network’
which provided free email to the public.” Dkt. No. 2 at 3. Dkt.
No. 2.
Lastly, in describing damages, Plaintiff states the “amount
outwardly and blatantly owed [to plaintiff] is one trillion
dollars.” Dkt. No. 2 at 3. At another point Plaintiff states, “I
am demanding U.S. dollars valu[ed] ... twenty-two billion ....
This is the sum that is necessary to repair my appearance, to
keep me safe, and to return my freedom to pursue happiness,
success, and love.... It is comprised of 18 billion as actual
and essential compensation, the amount required to return
my personal stature, including a 1 billion margin for security,
according to information from Forbes regarding distribution
of wealth among billionaires of different ages at this time,
and 4 billion as punitive damages.” Dkt. No. 2 at 3. Plaintiff
also indicates that the amount of damages must be high
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enough to enable him “the freedom to provide solutions to
the public for non-absorbable polymers and to complete the
development and implementation of technologies that repair
damage similar to that which Geoffrey Tobias inflicted upon
me.” Dkt. No. 2 at 3.
II. LEGAL STANDARD
*4 To survive a motion to dismiss under Rule 12(b)(6),
“a complaint must allege sufficient facts, taken as true, to
state a plausible claim for relief.” Johnson v. Priceline.com,
Inc., 711 F.3d 271, 275 (2d Cir. 2013)(citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56 (2007); Caldwell
v. Sutton, No. 19-CV-5236 (VEC), 2020 WL 4057750,
at *2 (S.D.N.Y. July 20, 2020)). “[A] complaint does not
need to contain detailed or elaborate factual allegations, but
only allegations sufficient to raise an entitlement to relief
above the speculative level.” Caldwell supra (citing Keiler
v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014)
(citation omitted)). For a Plaintiff “to ‘nudge[ ] their claims
across the line from conceivable to plausible,’ they must ‘raise
a reasonable expectation that discovery will reveal evidence’
of the wrongdoing alleged, ‘even if it strikes a savvy judge
that actual proof of those facts is improbable.’ ” Citizens
United v. Schneiderman, 882 F.3d 374 (2d Cir. 2018) (cleaned
up).
Generally, the Court accepts all factual allegations in a
complaint as true and draws all reasonable inferences in the
light most favorable to a plaintiff. Caldwell supra, (citing
Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013); In
re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.
2007)). The Court is not, however, bound to accept allegations
that are “irrational,” “fanciful,” “fantastic,” or “delusional.”
Denton v. Hernandez, 504 U.S. 25, 33 (1992); Gallop v.
Cheney, 642 F.3d 364, 368 (2d Cir. 2011); see also Neitzke
v. Williams, 490 U.S. 319, 324-25 (1989). Nor is the Court
“bound to accept as true a legal conclusion couched as a
factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Twombly, 550 U.S. at 555).
The pleading standard is “generally lower for a pro se
litigant.” Caldwell supra at *2; see also McDonald v. Head
Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d
Cir. 1988)(“pro se litigants ... deserve more lenient treatment
than those represented by counsel.”). “A document filed
pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Id.
(citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (quotation omitted)). “[T]he court must construe
pro se submissions liberally and interpret them to raise
the strongest arguments that they suggest.” Kirkland v.
Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014); Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Courts ordinarily owe pro se litigants “special solicitude”
because the lack of legal training and experience makes them
more “likely to forfeit important rights through inadvertence.”
Caldwell supra, (citing Tracy v. Freshwater, 623 F.3d 90,
101 (2d Cir. 2010)). Notwithstanding that solicitude, a court
“cannot invent factual allegations that a pro se plaintiff has
not pled.” Caldwell supra, (citing Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010)). “Even pro se plaintiffs ... cannot
withstand a motion to dismiss unless their pleadings contain
factual allegations sufficient to raise a ‘right to relief above
the speculative level.” Licorish-Davis v. Mitchell, No. 12-
CV-601 (ER), 2013 WL 2217491, at *3 (S.D.N.Y. May 20,
2013)(citing Jackson v. NYS Dep't of Labor, 709 F.Supp.2d
218, 224 (S.D.N.Y. 2010)).
III. DISCUSSION
Liberally construed, Plaintiff's complaint asserts state law
causes of action for (i) medical malpractice, (ii) battery, (iii)
sexual assault, (iv) conspiracy, and a federal claim for (v)
unfair trade practices. See generally Dkt. No. 2; see also
Dkt. No. 5; see also Defendants’ Memorandum of Law,
Dkt. No. 35 at 10 (acknowledging Plaintiff's Complaint
“liberally construed” asserts these causes of action); see
also Insurance Defendants’ Memorandum of Law, Dkt No.
40 at 32 (acknowledging Plaintiff's Complaint “liberally
construed” may assert a claim for unfair trade practices). Each
of these claims is not only time-barred, but also factually
frivolous.
1. The Complaint is Irrational and Factually Frivolous
*5 Plaintiff sought, and was granted leave to, proceed in
forma pauperis (IFP). Dkt. No. 1; Dkt. No. 3. Under “the
IFP statute, a court must dismiss an action if it determines
that the action is frivolous or malicious.” See Leonard v.
United States, No. 23-CV-8571 (LTS), 2023 WL 8258263,
at *3 (S.D.N.Y. Nov. 27, 2023) (citing 28 U.S.C. § 1915(e)
(2)(B)(i))(emphasis added). Even where the filing fee was
paid, courts “have ... inherent authority to sua sponte dismiss
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frivolous suits.” Gallop v. Cheney, 642 F.3d 364, 368 (2d
Cir. 2011); Yi Sun v. Saslovsky, No. 1:19-CV-10858 (LTS),
2020 WL 6828666, at *2 (S.D.N.Y. Aug. 6, 2020)(citing
Greathouse v. JHS Sec. Inc., 784 F.3d 105, 119 (2d Cir.
2015)). “But on top of that, Section 1915(e)(2)(B)(i) grants a
judge ‘the unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless.’ ” Samuel v. Bellevue Hosp.
Ctr., No. 07 CIV. 6321 (NRB), 2008 WL 3895575, at *3
(S.D.N.Y. Aug. 22, 2008), aff'd, 366 F. App'x 206 (2d Cir.
2010).
Courts have found a “finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible.” Denton v. Hernandez, 504
U.S. 25, 33 (1992); Nobile v. Queen Laticia of Spain, No.
1:23-CV-9081 (LTS), 2023 WL 8258336 (S.D.N.Y. Nov. 27,
2023). A complaint is “ ‘factually frivolous’ if the sufficiently
well-pleaded facts are ‘clearly baseless’ – that is, if they are
‘fanciful,’ ‘fantastic,’ or ‘delusional.’ ” Leonard supra at *3
(citing Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011));
see also Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
Even when read with the “special solicitude” due pro se
pleadings, here, Plaintiff's claims “rise to the level of the
irrational.” See Frost v. CVR Assocs. Inc., No. 1:19-CV-9190
(CM), 2019 WL 6340993, at *1 (S.D.N.Y. Nov. 26, 2019).
Plaintiff's complaint is replete with irrational claims and
wholly irrelevant details. First, Plaintiff provides few concrete
details about any of the allegations. See generally Dkt.
No. 2. Second, Plaintiff also frequently makes conclusory
statements with either no detail or only an implausible
explanation provided. Id. For example, Plaintiff says “I
was made to submit to surgery by compulsion” but says
the manner of the compulsion was “demeaning remarks
regarding my appearance and persistence that the procedure
was necessary.” Id. at 3.
Third, Plaintiff makes assertions that appear delusional
and irrational. Plaintiff claims “without further surgery the
procedure is likely to lead to a malignancy (i.e. cancer) and the
risk continues to increase over time.” Id. Plaintiff also asserts
that Dr. Tobias “wore a suit” in his clinical practice during
the appointments before the procedure, which “effectively
prevented [Plaintiff] from being able to sense [Tobias's]
motivations.” Id. “The only purpose of the procedure he
performed was to gain power over me.” Id. at 3. Another
example is that Plaintiff alleged Dr. Tobias's assistant “joined
Geoffrey Tobias in the examination room and watched him
examine me. A piece of non-absorbable plastic (nylon) had
been placed in my nose and not in hers. Both this assistant and
Geoffrey Tobias sexually violated me on a scale far beyond
what is easily imaginable ...” Dkt. No. 2 at 3.
Fourth, Plaintiff blends allegations against Tobias with
allegations against unnamed others. Plaintiff says that the
nasal procedure “led to repeated and countless rapes and
assaults by others.” Dkt. No. 2 at 3. Plaintiff alleges Dr.
Tobias “chuckled in response to complaints I made regarding
the results of the procedure .... and he appeared gratified
and pleased to have damaged my appearance. Since that
time, others have repeatedly mimicked those sexual and cruel
behaviors when interacting with me.” Dkt. No. 2 at 2.
*6 Furthermore, for a Complaint alleging a sexual assault,
Plaintiff provides no detail about the alleged sexual assault
beyond claiming that Dr. Tobias “rubbed his genitals” against
Plaintiff “when he stood to leave.” Dkt. No. 2 at 2.
Instead, Plaintiff's Complaint is filled with irrelevant details,
many that appear entirely delusional. For example, the
Complaint includes the irrelevant fact that Plaintiff skipped
grades in school, Plaintiff learned computer programming and
Plaintiff's mother worked for Bill Gates and later died by
apparent suicidal. Dkt. No 2 at 3. The Complaint also details
that Plaintiff has been harassed by police since his surgery due
to “alterations in [Plaintiff's] appearance and voice.” Id. at 2.
In addition, without explanation of context, Plaintiff avers that
the “CEO of Berkshire Hathaway acts as one of the world's
foremost philanthropists, but it appears he failed to direct
funds to the development of replacements for these outdated
polymers.” Id.
Plaintiff's damages claim, too, is infused with irrational and
fanciful allegations. At one point, Plaintiff states the damages
are one trillion dollars. Dkt. No. 2 at 3. At another point
saying, “I am demanding U.S. dollars valu[ed] on the day
[Defendant's] response is due to these complaints[,] twenty-
two billion as financial restitution and absolutely no less
than that amount.” Dkt. No. 2 at 3. This sum includes
actual damages as well as a “1 billion margin for security,
according to information from Forbes regarding distribution
of wealth among billionaires of different ages at this time,
and 4 billion as punitive damages.” Dkt. No. 2 at 3. Plaintiff,
who professes no medical expertise, also indicated that the
amount of damages must be high enough to enable them
“the freedom to provide solutions to the public for non-
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absorbable polymers and to complete the development and
implementation of technologies that repair damage similar to
that which Geoffrey Tobias inflicted upon me.” Dkt. No. 2 at
3.
Moreover, Plaintiff's inclusion of unfair trade practice claims
along with objections to the “extremely dangerous procedure
[of] a nylon plastic suture ... designed entirely to defraud
the patient,” in a Complaint that purports to allege a sexual
assault indicates a level of irrationality. Dkt. No. 2 at 2.
Plaintiff includes no detail on how “nylon plastic sutures,”
the most commonly used sutures in the world, are “extremely
dangerous” or could result in the damages he alleges. Dkt.
No. 2.
Taking all of the allegations together, the Court concludes
that, on balance, the Complaint is “ ‘factually frivolous’ ”
as the allegations are fanciful, fantastic, and delusional. See
Leonard supra at *3 (citing Gallop v. Cheney, 642 F.3d 364,
368 (2d Cir. 2011)); see also Neitzke v. Williams, 490 U.S.
319, 324-25 (1989).
In addition to the reasons described below, this is an
independent basis to dismiss the Complaint. See Denton
supra; Nobile v. Queen Laticia of Spain, supra.
2. Medical Malpractice
Plaintiff's allegations liberally construed purport to assert
a cause of action for medical malpractice. As Plaintiff's
complaint is unclear as to whether the actions complained of
occurred in either New York or New Jersey, the Court will
consider the statutes of limitations under both states.
*7 In New York, medical malpractice claims must be
brought within two and a half years. See N.Y. C.P.L.R. §
214-a; Lohnas v. Luzi, 30 N.Y.3d 752, 755 (2018); Polardo
v. Adelberg, No. 22-CV-2533 (KMK), 2023 WL 2664612,
at *18 (S.D.N.Y. Mar. 28, 2023), appeal dismissed sub nom.
Poplardo v. Adelberg, No. 23-604, 2023 WL 4504459 (2d
Cir. June 8, 2023); see also Bridges v. Corr. Servs., No. 17-
CV-2220 (NSR), 2022 WL 1500633, at *7 (S.D.N.Y. May 12,
2022). In New Jersey, the statute of limitations is two years.
See N.J.S.A. 2A:14-2 (2-year period from accrual).
The “statute of limitations ... runs from the date of the alleged
negligent act or omission that caused the patient's injury.” See
Lohnas supra at 755; Poplardo at 18 supra, and Bridges at
7 supra. Plaintiff alleges receiving treatment “in January 23,
2017” 3 and on “April 18, 2017 and ... within days of that
time.” Dkt. No. 2 at 1. Therefore, the Plaintiff's last date to
file a claim for medical malpractice was October 17, 2019, in
New York and April 18, 2018, in New Jersey.
Plaintiff did not start this lawsuit until October 7, 2022. Dkt.
No. 2. Therefore, the medical malpractice claim is time-
barred and should be dismissed.
3. Intentional Tort of Battery
To the extent Plaintiff asserts that Plaintiff did not give
consent to the medical procedure, Plaintiff asserts a claim for
battery. See generally Dkt. No. 2; see also Gomez-Kadawid
v. Lee, 2022 WL 676096 *11 (S.D.N.Y. 2022); Meyers v.
Epstein, 232 F.Supp.2d 192, 196 (S.D.N.Y. 2002); Messina v.
Matarasso, 284 A.D.2d 32, 35-36 (1st Dep't 2001); see also
Colucci v. Oppenheim, 326 N.J.Super. 166, 180 (App. Div.
1999)(citing Whiteley-Woodford v. Jones, 253 N.J.Super. 7,
10 (App. Div. 1992)).
The tort of battery has a statute of limitations of one year
in New York. See N.Y. C.P.L.R. § 215(3); Potter v. Zucker
Hillside Hosp., 176 A.D.3d 884 (2019). Even if governed
by New Jersey law, which requires commencement within 2
years of accrual, the claim would still be time-barred. See
N.J.S.A. 2A:14-2.
Given that Plaintiff alleges the events happened “in January
23, 2017” and on “April 18, 2017 and ... within days of that
time,” the Plaintiff's last date to file a claim for battery was
April 18, 2018 in New York and April 18, 2019 in New Jersey.
Dkt. No. 2 at 1.
Plaintiff did not start this lawsuit until October 7, 2022. Dkt.
No. 2. Therefore, the battery claim is time-barred and should
also be dismissed.
4. Sexual Assault
Plaintiff alleges Dr. Tobias “breath[ed] heavily in [Plaintiff's]
face”; and on another occasion, “rubbed his genitals against”
Plaintiff “when [Plaintiff] stood up” to leave the examination
room. Dkt. No. 2 at 3. Liberally construed this may make out
an allegation of sexual assault.
A cause of action for sexual assault is subject to a one-
year statute of limitation in New York. Krioutchkova v. Gaad
Realty Corp., 28 A.D.3d 427, 428, 814 N.Y.S.2d 171, 173
(2006) (citing CPLR 215[3]; Yong Wen Mo v. Gee Ming
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Chan, 17 A.D.3d 356, 358, 792 N.Y.S.2d 589); Johnson v.
NYU Langone Health, No. 22-CV-09456 (JHR), 2023 WL
6393466, at *2 (S.D.N.Y. Sept. 30, 2023).
*8 It is worth noting that in May 2022 the New York
legislature enacted the Adult Survivors Act (ASA) which,
in relevant part, “created a one-year revival period, starting
November 24, 2022, during which adult survivors of sexual
assault could sue their abusers despite the expiration of
the previously applicable statutes of limitation.” Carroll v.
Trump, 650 F. Supp. 3d 213, 218 (S.D.N.Y. 2023). However,
the Court concludes that the Adult Survivors Act does not
apply to this claim.
First, as discussed above, the Court must conclude that
Plaintiff's claims are “fanciful,” “fantastic,” and “delusional.”
See Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011);
see also Neitzke v. Williams, 490 U.S. 319, 324-25
(1989). Plaintiff's claims are severely irrational and logically
disconnected. See supra Sec. 1. Therefore, Plaintiff does
not allege facts warranting equitable tolling of the claims
or revival under the Adult Survivors Act. See generally
Jones v. N.Y.P.D., No. 23-CV-9515 (LTS), 2024 WL 325361
(S.D.N.Y. Jan. 29, 2024); see also Frost v. CVR Assocs. Inc.,
No. 1:19-CV-9190 (CM), 2019 WL 6340993, at *1 (S.D.N.Y.
Nov. 26, 2019).
Second, this Complaint was filed in October 2022, before the
ASA became effective. See N.Y. C.P.L.R. 214-j (McKinney)
(“every civil claim or cause of action .... which would
constitute a sexual offense” ... is hereby revived, and action
thereon may be commenced not earlier than six months after,
and not later than one year and six months after the effective
date of this section.”)(emphasis added); see also Jones v.
Cattaraugus-Little Valley Cent. Sch. Dist., No. 19-CV-707S,
2022 WL 2124608, at *9 (W.D.N.Y. June 13, 2022)(“Because
Plaintiff commenced this action before the date the New
York legislature authorized for the commencement of suits
under the CVA, and because this Court finds no equitable
reasons to relieve Plaintiff from the dates set by the New York
legislature, the District's motion for summary judgment will
be granted.”).
Third, for a claim to be revived pursuant to the ASA, “a
defendant's underlying conduct must ‘constitute a sexual
offense as defined in article one hundred thirty of the penal
law’ and have been ‘committed against such person who
was eighteen years of age or older.’ ” See N.Y. C.P.L.R.
214-j; see also Johnson v. NYU Langone Health, No. 22-
CV-09456 (JHR), 2023 WL 6393466, at *2 (S.D.N.Y. Sept.
30, 2023) (citing N.Y. Penal Law § 130.52(1) 4 and discussing
that an allegation a defendant “put his bare hand between
the plaintiff's buttocks cheeks,” does not meet the requisite
standard for revival under the Adult Survivors Act.). The
claim here does not allege anything that would constitute a
sexual offense under NY CPL 130. Thus, for that additional
reason, the ASA does not apply here.
*9 Thus, since the Adult Survivors Act does not apply and
Plaintiff alleges the events happened on “January 23, 2017”
and on “April 18, 2017 and ... within days of that time,” the
Plaintiff's last date to file a claim alleging a sexual assault in
New York was April 18, 2018. Therefore, these claims are
time-barred under New York law.
Under New Jersey law, Plaintiff had two years to file a lawsuit
alleging sexual assault. See N.J.S.A. 2A:14-2(a) (“Except
as otherwise provided by law, every action at law for an
injury to the person caused by the wrongful act, neglect or
default of any person within this State shall be commenced
within two years next after the cause of any such action shall
have accrued ....”); see generally Doe v. Est. of C.V.O., 477
N.J. Super. 42, 303 A.3d 678 (App. Div. 2023). Therefore
Plaintiff's last date to file a complaint in New Jersey was April
18, 2019.
Plaintiff did not start this lawsuit until October 2022. Dkt. No.
2. Therefore, Plaintiff's sexual assault claims are time-barred.
5. Conspiracy
Plaintiff's Complaint asserts the actions against them are
“interrelated and can be described as a conspiracy against
[Plaintiff's] rights.” Id.
However, a “conspiracy to commit a [tort] is never of itself
a cause of action.” Alexander & Alexander of New York,
Inc. v. Fritzen, 68 N.Y.2d 968, 969 (1986). “Allegations
of conspiracy are permitted only to connect the actions of
separate defendants with an otherwise actionable tort.” Id. see
also Carlson v. American Intern. Group, Inc., 30 N.Y.3d 288,
310 (2017) (“New York does not recognize a freestanding
claim for conspiracy.”).
Under New York law, to establish a claim of civil conspiracy,
a “plaintiff must demonstrate the primary tort, plus the
following four elements: [1] an agreement between two or
more parties; [2] an overt act in furtherance of the agreement
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[that constitutes an independent tort or wrongful act]; [3] the
parties’ intentional participation in the furtherance of a plan or
purpose; and [4] resulting damage or injury.” Cohen Brothers
Realty Corp. v. Mapes, 181 A.D.3d 401, 404 (1st Dep't 2020).
New Jersey law is the same. See e.g. Brown ex rel. Est. of
Brown v. Philip Morris Inc., 228 F. Supp. 2d 506, 517 (D.N.J.
2002); Assadourian v. Harb, No. CIV.A. 06-896 GEB, 2010
WL 4446632, at *4 (D.N.J. Nov. 1, 2010), aff'd, 430 F. App'x
79 (3d Cir. 2011).
Plaintiff has not alleged any of the elements of a conspiracy.
There is no alleged agreement and no alleged underlying tort
that is not time-barred. See generally Dkt. No. 2. Plaintiff
does not say when any alleged conspiracy occurred. For these
reasons, the conspiracy claims against the Defendants should
also be dismissed.
6. Unfair Trade Practices
Although a claim for unfair trade practices is not contained
in the Complaint, in the response to Judge Swain's Order
to Show Cause on the issue of subject matter jurisdiction,
Plaintiff alleged that “federal question jurisdiction appears to
exist .... federal law bans unfair or deceptive acts.” See Dkt.
No. 5. 5
Any claim of a violation under federal law for unfair or
deceptive trade practices would be governed by Section 5
of the Federal Trade Commission Act (“FTCA”), 15 U.S.C.
§ 45, which does not provide a private right of action.
Hannan v. Rose, 2020 WL 3965341, * 10 (S.D.N.Y. Feb. 28,
2020)(citing Naylor v. Case & McGrath, Inc., 585 F.2d 557,
561 (2d Cir. 1978))(“it is clear that no private right of action
arises under [15 U.S.C. § 45]”) (collecting cases); see Oliver
v. U.S. Bancorp, No. 14-CV-8948, 2015 WL 4111908, at *6
(S.D.N.Y. July 8, 2015); Shostack v. Diller, No. 15cv2255
(GBD) (JLC), 2015 WL 5535808, at *9 (S.D.N.Y. Sept. 16,
2015) report and recommendation adopted, 2016 WL 958687
(S.D.N.Y. Mar. 8, 2016); Rotblut v. Ben Hur Moving &
Storage, Inc., 585 F. Supp. 2d 557, 560 (S.D.N.Y. 2008);
see also Yerushalayim v. Liecthung, No. 19CV4101 (AMD)
(LB), 2019 WL 3817125, at *3 (E.D.N.Y. Aug. 13, 2019)
(same); Gray v. Capstone Fin., No. 120-CV-0896(GLS)
(CFH), 2020 WL 6526086, at *7 (N.D.N.Y. Sept. 22, 2020),
report and recommendation adopted, No. 120-CV-896(GLS)
(CFH), 2020 WL 6504625 (N.D.N.Y. Nov. 5, 2020). Since no
private right of action exists, only the government can allege
a federal unfair trade practices claim. Therefore, Plaintiff's
federal unfair trade practice claims should be dismissed.
*10 Similarly, in New Jersey, N.J.S.A. § 17:29B-1 et seq.,
which regulates trade practices in the business of insurance,
“does not create individual or private causes of action.”
Pierzga v. Ohio Cas. Group of Ins. Companies, 504 A.2d
1200, 1204 (N.J. Super. Ct. App. Div. 1986)(citing N.J.S.A.
§ 17:29B-1 et seq.; see also Nationwide Mut. Ins. Co. v.
Caris, 170 F. Supp. 3d 740 (D.N.J. 2016))(“no private right
of action for policyholders against their insurers based on
UCSPA violations ...”); Rothschild v. Foremost Ins. Co., 653
F.Supp.2d 526, 537 (D.N.J. 2009).
New York, on the other hand, does permit private plaintiffs to
bring lawsuits for “unfair and deceptive trade practices.” See
generally New York General Business Law (“GBL”) § 349(a)
(prohibiting “[d]eceptive acts or practices in the conduct of
any business, trade or commerce ...”) and § 349(h)(permitting
a private right of action); see also Himmelstein, McConnell,
Gribben, Donoghue & Joseph, LLP v. Matthew Bender &
Co., Inc., 37 N.Y.3d 169, 176 (2021)(“To ensure the broadest
enforcement of the statute, the legislature added a private right
of action for injunctive and monetary relief (GBL § 349[h]).
Thus, in addition to the Attorney General, individuals and
businesses may bring an action under GBL § 349.”); Feinberg
v. Federated Dept. Stores, Inc., 15 Misc. 3d 299, 304 (Sup Ct,
New York County 2007).
However, unfair or deceptive trade practice claims under New
York's GBL § 349 are “subject to the three-year limitations
period.” Corsello v. Verizon New York, Inc., 18 N.Y.3d 777
(2012); Marshall v. Hyundai Motor Am., No. 12–CV–3072
(KMK), 51 F. Supp. 3d 451 (S.D.N.Y. 2014); see Malek v.
AXA Equitable Life Ins. Co., No. 20-CV-04885(DGA)(YS),
2023 WL 2682408, at *8 (E.D.N.Y. Mar. 29, 2023); see also
Nachman v. Tesla, Inc., No. 22-CV-5976(RPK)(ST), 2023
WL 6385772, at *3 (E.D.N.Y. Sept. 30, 2023).
Given that Plaintiff alleges the events happened “in January
23, 2017” and on “April 18, 2017” the Plaintiff's last date
to file a claim under New York's GBL § 349 was April 18,
2020. Dkt. No. 2 at 1. Since the Complaint was not filed until
October 2022, Plaintiff's state law unfair trade practice claims
should also be dismissed. Dkt. No. 2.
7. Leave to Amend
Generally, “pro se litigants should be given leave to amend
a complaint if a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)(citing Gomez v.
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USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
However, in light of the fact that even liberally construed,
these claims are time-barred and factually frivolous no leave
to amend should be granted. See Licorish-Davis v. Mitchell,
No. 12-CV-601 ER, 2013 WL 2217491, at *10 (S.D.N.Y.
May 20, 2013); Frost v. CVR Assocs. Inc., No. 1:19-CV-9190
(CM), 2019 WL 6340993, at *1 (S.D.N.Y. Nov. 26, 2019).
8. Other Grounds for Dismissal Not Considered
The Court declines to reach Defendants’ remaining arguments
for dismissal. 6
IV. RECOMMENDATION
For all the foregoing reasons, the Court recommends that the
Motions to Dismiss be GRANTED in their entirety and the
case be closed.
V. FILING OF OBJECTIONS TO THIS REPORT AND
RECOMMENDATION
*11 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the Parties shall have
fourteen (14) days from receipt of this Report to file written
objections. See also Fed. R. Civ. P. 6(a). Such objections
(and responses thereto) shall be filed with the Clerk of
the Court. Any requests for an extension of time for filing
objections must be directed to Judge Caproni. FAILURE TO
OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155
(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298,
300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55,
57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234,
237-38 (2d Cir. 1983) (per curiam).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1421152
Footnotes
1 Judge Swain previously issued an Order to Show Cause to Plaintiff to demonstrate subject matter jurisdiction.
Dkt. No. 4. Plaintiff submitted a declaration at Dkt. No. 5 that alleged diversity jurisdiction, that the Berkshire
Hathaway, MedPro Group, and Princeton Insurance Company Defendants are “active” in New York, and that
“federal question jurisdiction appears to exist .... federal law bans unfair or deceptive acts.” See Dkt. No. 5.
While not included in the Complaint, the Court will consider these claims.
2 Defendants raise numerous arguments in their Motions to Dismiss. See Dkt. Nos. 33 at 1 (“Pursuant to
N.Y. C.P.L.R. § 214-a, dismissing the claim sounding in medical malpractice as time-barred and, in any
event, pursuant to Fed. R. Civ. P., Rules 8(a)(2) and 12(b)(6), for failure to state a claim upon which relief
may be granted; and/or (b) Pursuant to N.Y. C.P.L.R. § 215(3) or § 214-a, dismissing the claim sounding
in the intentional tort of battery as time-barred and, in any event, pursuant to Fed. R. Civ. P., Rules 8(a)
(2) and 12(b)(6), for failure to state a claim upon which relief may be granted; and/or (c) Dismissing any
conspiracy claim for failure to state a claim upon which relief may be granted; and/or (d) Pursuant to Fed.
R. Civ. P. 11 and 28 U.S.C. § 1915(e)(2)(B)(i), dismissing the complaint as patently frivolous, irrational and
vexatious; or (e) Pursuant to Fed. R. Civ. P., Rule 12(b)(7) and Rule 19, dismissing the complaint for failure
to join an indispensable party; or (f) Striking plaintiffs’ claim for punitive damages; and/or (g) Assuming the
complaint asserts a substantial claim, then pursuant to Fed. R. Civ. P. 17 and N.Y. C.P.L.R. §§ 1201 and
3211, dismissing the complaint for want of capacity; or (h) Pursuant to Fed. R. Civ. P., Rule 17, compelling
plaintiff to appear for a competency hearing; and (i) Granting moving defendant such other and different relief
as the Court may deem just and proper.”); Dkt. No. 40 at 10 (Defendants “move to dismiss this action as
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it is frivolous, this Court does not have jurisdiction over the defendants, and plaintiff fails to state a claim
for relief.”.).
3 Plaintiff alleges receiving treatment “between January 23, 2017 and the present time” but the Complaint
alleges no other dates besides the January and April dates nor any continuing treatment. See generally Dkt.
No. 2.
4 The Court also concludes that Plaintiff has not made out an allegation for Sexual Abuse in the Third Degree
under CPL § 130.55. While Plaintiff alleges “on one occasion [Dr. Tobias] rubbed his genitals against me
when I stood up and tried to leave the examination room” this does not sufficiently allege a violation of CPL §
130.55, which requires a defendant to subject “another person to sexual contact without the latter's consent”
with “sexual contact” defined as “any touching of the sexual or other intimate parts of a person for the purpose
of gratifying sexual desire of either party ...” See N.Y. Penal Law § 130.00 (McKinney)(emphasis added).
While Plaintiff alleges that Dr. Tobias's interest in performing the surgery was “sexual in nature” the allegation
that Dr. Tobias rubbed his genitals against the Plaintiff as Plaintiff left the room does not sufficiently allege
that Dr. Tobias did so “for the purpose of gratifying” either his own or Plaintiff's sexual desires. Therefore, the
Complaint does not allege a violation of CPL § 130.
5 Generally, allegations must be included on the face of the Complaint. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 154 (2d Cir. 2002). However, as Plaintiff is pro se, the Court will consider this claim.
6 Defendants raise numerous arguments in their Motions to Dismiss. See Dkt. Nos. 33 and 40.
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Lyddy v. Bridgeport Bd. of Educ., Not Reported in F.Supp.2d (2007)
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2007 WL 2697452
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Sally LYDDY, et al.
v.
BRIDGEPORT BOARD OF EDUCATION, et al.
Civil No. 3:06CV1420(AHN).
|
Sept. 11, 2007.
Attorneys and Law Firms
John W.L. Walshe, Bridgeport, CT, for Sally Lyddy.
Carolyn Roberts Linsey, Jeffers & Ireland, Fairfield, CT,
Matthew Scott Hirsch, Law Offices of Matthew S. Hirsch
LLC, Trumbull, CT, for Bridgeport Board of Education.
RULING ON PENDING MOTIONS
ALAN H. NEVAS, United States District Judge.
*1 The plaintiffs, Sally Lyddy (“Lyddy”) and Maria
Marcoccia (“Marcoccia”), bring this Title VII employment
action against the City of Bridgeport (“City”), the Bridgeport
Board of Education (“Board”), and Andrew Cimmino
(“Cimmino”), the principal of Thomas Hooker School
(“School”). Lyddy, a former teacher at the School, and
Marcoccia, the School's former sexual harassment officer,
both still work in the Bridgeport school system. They allege
that when they worked at the School, they suffered sexual
harassment and discrimination as a result of Cimmino's
“sexual antics,” which they say the Board condoned,
permitted and refused to stop. In addition to their Title VII
claims against all defendants, Lyddy and Marcoccia also
allege a “negligent and/or intentional” infliction of emotional
distress against Cimmino, and an “attempted due process”
claim against the City.
The City, the Board and Cimmino have moved to dismiss
the complaint [docs. 26 & 28] and to strike numerous
allegations [docs.26 & 30]. Lyddy and Marcoccia have moved
to disqualify counsel for the City [docs.52 & 53]. For the
following reasons, the motions to dismiss and strike are
GRANTED in part and DENIED in part. The motions to
disqualify counsel are DENIED.
STANDARD
The function of a Rule 12(b)(6) motion to dismiss is “merely
to assess the legal feasibility of the complaint, not to assay
the weight of the evidence which might be offered in
support thereof.” Ryder Energy Distribution v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). When
considering a motion to dismiss, the court must accept the
facts alleged in the complaint as true, draw all reasonable
inferences from those facts in the light most favorable to
the plaintiff, and construe the complaint liberally. Gregory v.
Daly, 243 F.3d 687, 691 (2d Cir.2001). The district court may
dismiss a claim only if the plaintiff's factual allegations are
not sufficient “to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S., 544 127 S.Ct.
1955, 1960 (2007); 1 see also Iqbal v. Hasty, 490 F.3d 143,
157–58 (2d Cir.2007). Although detailed factual allegations
are not required, a plaintiff must provide the grounds of her
entitlement to relief beyond mere “labels and conclusions.” A
“formulaic recitation of the elements of a cause of action will
not do.” Bell Atlantic, 127 S.Ct. at 1964–65. The complaint
must include sufficient facts to afford the defendants fair
notice of the claims and the grounds upon which they are
based and demonstrate a right to relief. Id. Conclusory
allegations are not sufficient. Under the plausibility standard,
a claim must be amplified “with some factual allegations in
those contexts where such amplification is needed to render
the claim plausible.” Iqbal v. Hasty, 490 F.3d at 157–58.
DISCUSSION
The City and Cimmino move to dismiss Lyddy's and
Marcoccia's Title VII claim. The City maintains that they do
not allege that it is their employer and thus it cannot be liable
under Title VII. Cimmino maintains that the Title VII claim
against him must be dismissed because there is no individual
liability under Title VII. Cimmino moves as well to dismiss
the second count, in which Lyddy and Marcoccia allege a
claim against him for negligent and/or intentional infliction of
emotional distress. The City also moves to dismiss the third
count, which alleges an attempted due process violation, on
the grounds that the complaint does not allege what rights
were abridged or the manner in which they were abridged.
The Board joins in moving to dismiss this count to the extent
it is brought against it. The City, the Board, and Cimmino
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move to dismiss the fourth count on the grounds that it does
not articulate a legally cognizable cause of action.
*2 The City, the Board, and Cimmino also move to strike
numerous paragraphs of the complaint on the grounds that the
allegations are immaterial, scandalous, and impertinent.
Lyddy and Marcoccia move to disqualify counsel for the
City on the ground that counsel's simultaneous representation
of the City and the Board presents an impermissible and
insoluble conflict of interest.
I. Title VII Claim Against the City & Cimmino
The City maintains that the Title VII claim against it must be
dismissed because Lyddy and Marcoccia do not, and cannot,
allege that it was their employer. The City is correct.
Throughout the complaint, Lyddy and Marcoccia only
allege that the Board was their employer. For example, in
paragraph 4, the complaint alleges that “the Board is the
employer of plaintiffs.” In paragraph 9(a), it alleges that “the
Board engaged in employment discrimination.” Paragraph 10
alleges that “Lyddy has been employed by the Board since
1990 ... Marcoccia has been employed by the Board since
approximately 1988.” Paragraph 25 alleges that “[d]espite
the complaints made by plaintiffs to the Board, ... the Board
failed and refused to terminate” Cimmino's sexual harassment
of them. And in paragraph 26, it says that Cimmino's
sexual harassment, abuse, and discrimination was ratified and
condoned by the Board and the Board's failure to terminate
or restrain him rendered his conduct to be a policy of the
Board. In contrast, the City is mentioned only in paragraph
5, which states that “the City ... is a municipal corporation
with authority to review the Board's acts and actions.” The
complaint simply does not allege any involvement of or acts
by City officials, as opposed to Board officials, in the alleged
conduct forming the basis of the Title VII claim.
The existence of an employer-employee relationship is the
touchstone of liability under Title VII. Gulino v. New
York State Educ. Dept., 460 F.3d 361, 370 (2d Cir.2006).
It is well settled that under Title VII an employee may
only sue her employer. E.g., Nanton v. City of New York,
No. 05civ8989(DLC), 2007 WL 2319131 (S .D.N.Y. Aug.
10, 2007). To discern the existence of an employment
relationship, the court must start with traditional indications
of employment under the common law of agency. Gulino,
460 F.3d at 379. This involves an examination of whether
the putative employer had any role in hiring, promoting,
demoting, or compensating the employee and the extent to
which it had control over the day-to-day activities of the
employee. Id. (citing Cmty. for Creative Non–Violence v.
Reid, 490 U.S. 730 (1989)). There must be a relationship
where the level of control is direct, obvious and concrete, not
merely indirect or abstract. Id.
Here, not only do Lyddy and Marcoccia allege that the Board,
not the City, is their employer, there is also nothing in the
alleged facts from which the court could determine, based on
traditional agency principles, that the City is their employer. 2
Moreover, such a finding would be contrary to Connecticut
statutes which make it clear that local boards of education, not
municipalities, are charged with maintaining public schools
and implementing the state's educational interests. In fact,
Connecticut statutes give local school boards the express
authority to employ and dismiss the schools' teachers and
staff. Conn. Gen.Stat. § 10–220; Conn. Gen.Stat. § 10–241
(“Each school district shall be a body corporate and shall have
the power to sue and be sued; ... and to employ teachers, ... and
pay their salaries.”); Conn. Gen.Stat. § 10–151 (governing
procedures by which local school boards promote, terminate,
and compensate teachers).
*3 In the absence of any allegation that the City is the
employer of Lyddy or Marcoccia, or any facts from which
the court could determine that the City had any control over
the terms and conditions of their employment or day-to-day
activities, and in light of the provisions of the Connecticut
statutes which expressly delegate control over public schools
to local school boards, including the employment of teachers
and staff, it does not appear that Lyddy and Marcoccia can
prove any facts to support their Title VII claim against the
City.
The Title VII claim against Cimmino must also be dismissed
because individuals, including supervisors, are not liable
under Title VII. E.g., Patterson v. County of Oneida, 375 F.3d
206, 221 (2d Cir.2004); Mandell v. County of Suffolk, 316 F.3d
368, 377 (2d Cir.2003); Tomka v. Seiler Corp., 66 F.3d 1295,
1313 (2d Cir.1995); Martin v. Town of Westport 329 F.Supp.2d
318, 325 (D.Conn.2004). Rather, as noted, liability under Title
VII is limited to employers.
Because the allegations in the complaint are not sufficient to
state a claim for relief under Title VII that is plausible on
its face as to the City and Cimmino, and because it appears
beyond doubt that they can prove no set of facts in support
of their Title VII claim against either of these defendants,
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count one of the complaint against them is dismissed with
prejudice. 3
II. Emotional Distress Claim Against Cimmino
The second count of the complaint alleges that Cimmino
conducted himself “for the negligent and/or joint purposes
of inflicting emotional distress upon plaintiffs and divesting
them of their right to have their grievances redressed.” 4
Cimmino moves to dismiss this count on the grounds that the
alleged conduct is not extreme and outrageous and that it did
not occur in the context of the termination of employment.
A. Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional
distress, a plaintiff must allege that: (1) the defendant intended
to inflict emotional distress, or knew or should have known
that emotional distress was the likely result of his conduct; (2)
the defendant's conduct was extreme and outrageous; (3) the
defendant's conduct was the cause of the plaintiff's emotional
distress; and (4) the emotional distress suffered by the plaintiff
was severe. E.g., Golnik v. Amato, 299 F.Supp.2d 8, 14–
15 (D.Conn.2003). In addition, to be actionable, the alleged
conduct must be “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. Generally, the case is one in which the
recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him
to exclaim, ‘Outrageous!’ ... Conduct on the part of the
defendant that is merely insulting or displays bad manners
or results in hurt feelings is insufficient.” Appleton v. Bd. of
Educ., 254 Conn. 205, 210–11 (2000). It is for the court to
determine in the first instance whether the alleged conduct of
a defendant, as a matter of law, satisfies these requirements.
Id. at 210; Ancona v. Manafort Bros., Inc., 56 Conn.App. 701,
712 (2000).
*4 In the employment context, courts carefully review
intentional infliction of emotional distress claims. Grigorenko
v. Pauls, 297 F.Supp.2d 446, 448 (D.Conn.2003) (“Intentional
infliction of emotional distress claims are often pleaded but
rarely get very far under the Appleton standard.”); Golnik v.
Amato, 299 F.Supp.2d at 15 (citing cases).
Lyddy and Marcoccia do not identify the specific conduct
that forms the basis of this claim, but the court construes the
claim to be based only on Cimmino's alleged conduct that was
directed at them, 5 consisting of (1) flaunting a device used to
heighten sexual arousal, (2) wearing a tie bearing a painting
of a naked woman, (3) leaving a sexually oriented newspaper
on Marcoccia's desk, (4) bragging about his visits to a nudist
camp and showing pictures of himself at the camp, (5)
boasting about his trips to “S & M” clubs and inviting Lyddy
to accompany him to one, (6) frequently stating he could
get rid of anyone he wanted, (7) filing a criminal complaint
accusing Lyddy and Marcoccia of complicity in connection
with financial irregularities in an after-school program even
though the charges had been found to be without merit by the
Board and Internal Affairs, and that this coincided with the
death of Lyddy's husband.
The court does not, however, need to decide whether
this alleged conduct is sufficiently extreme and outrageous
because the claim is otherwise deficient for failing to allege
the other essential elements of an intentional infliction of
emotional distress claim, i .e., that Cimmino intended to
inflict emotional distress, or knew or should have known that
emotional distress was the likely result of his conduct and that
his conduct was the cause of the alleged emotional distress.
E.g., Golnik v. Amato, 299 F.Supp.2d at 14–15. Accordingly,
because the factual allegations are not sufficient to state such
a claim that is plausible on its face, it is dismissed with leave
to replead.
B. Negligent Infliction of Emotional Distress
A cause of action for negligent infliction of emotional
distress is limited to conduct arising out of the termination
of employment. Perodeau v. City of Hartford, 259 Conn.
729, 762–63 (2002) (“[A]n individual municipal employee
may not be found liable for negligent infliction of emotional
distress arising out of conduct occurring within a continuing
employment context, as distinguished from conduct occurring
in the termination of employment.”). Cimmino's alleged
conduct did not occur in the termination of employment.
Indeed, both Lyddy and Marcoccia are still employed by the
Board. Thus, this claim is dismissed with prejudice.
III. Due Process Violation
In the third count, Lyddy and Marcoccia allege that the
City 6 “has attempted to abridge [their] due process rights
by allowing defendant Cimmino's extortion attempts to
proceed, by conducting a criminal investigation of them
and threatening prosecution.” The City maintains that these
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allegations are insufficient to allege a civil rights claim. The
court agrees.
*5 This claim is deficient in a number of ways. First, there
is no direct cause of action under the Fourteenth Amendment.
E.g., Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 732 n. 3
(7th Cir.1994) (holding that there is no direct cause of action
under the Fourteenth Amendment and that Congress provided
a means to vindicate these rights in 42 U.S.C. § 1983); Turpin
v. Mailet, 591 F.2d 426, 427 (2d Cir.1979) (same). However,
in light of the court's obligation to construe complaints
liberally, even those filed by attorneys, the court construes it
as alleging a violation of § 1983. See e.g., Leonard P'ship v.
Town of Chenango, 779 F.Supp. 223 (N.D.N.Y.1991).
Second, there can be no recovery under § 1983 for an
attempted constitutional violation; only a claim of actual
deprivation is cognizable under the statute. Hale v. Townley,
45 F.3d 914, 920 (5th Cir.1995); Mozzochi v. Borden, 959 F.2d
1174, 1180 (2d Cir.1992); Dixon v. City of Lawton, 898 F.2d
1443, 1449 (10th Cir.1990); Dooley v. Reiss, 736 F.2d 1392,
1394–95 (9th Cir.1984); Landrigan v. City of Warwick, 628
F.2d 736, 742 (1st Cir.1980); Ashford v. Skiles, 837 F.Supp.
108, 115 (E.D.Pa.1993); Defeo v. Sill, 810 F.Supp. 648, 658
(E.D.Pa.1993). “[T]he mere attempt to deprive a person of
his [constitutional] rights is not, under usual circumstances,
actionable under section 1983.” Andree v. Ashland County,
818 F.2d 1306, 1311 (7th Cir.1987).
Third, even construing this count as asserting a § 1983 claim
does not save it from dismissal because it contains only broad
and conclusory statements and not any specific allegations of
fact which indicate the deprivation of a constitutional right.
Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987);
Martinez v. Brevard County Parks & Recreation, No. 6:06–
cv–116–Orl–18DAB, 2006 WL 4694730 (M.D.Fla. Apr. 05,
2006). It also does not identify the protected liberty interest
or property interest that was allegedly deprived and does not
state whether the alleged due process violation is substantive
or procedural. See Hennessy v. City of Long Beach, 258
F.Supp.2d 200, 206 (E.D.N.Y.2003); Huff v. West Haven Bd.
of Ed., 10 F.Supp.2d 117, 121–22 & n. 11 (D.Conn.1998).
Fourth, even if a § 1983 violation had been properly pleaded,
the claim would be deficient because there is no allegation
of any policy or custom of the City that caused the asserted
constitutional deprivation under the guidelines established by
the Supreme Court. See Monell v. Dep't of Soc. Serv., 436 U.S.
658, 690–91 (1976) (holding that a municipality may be found
liable under § 1983 only where the municipality itself causes
the constitutional violation at issue); see also e.g., Jenkins
v. City of New York, 478 F.3d 76 (2d Cir.2007); Wimmer v.
Suffolk County Police Dept., 176 F.3d 125, 137 (2d Cir.1999).
For all of these reasons, the third count is defective on its face
and is dismissed with prejudice.
IV. Fourth Count
*6 The fourth count of the complaint states that “plaintiffs
pray that defendants be prohibited from continuing their
harassment of plaintiffs as described above and specifically
that they be prohibited from their attempts to engage in any
activity related to the criminal prosecution of plaintiffs until
the resolution of this case.” The defendants assert that this
claim is legally deficient. The court agrees.
In so far as this count purports to set forth a claim for
relief, it is deficient because a claim for relief must contain
a recitation of operative facts that give rise to an enforceable
right. Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133
F.2d 187 (2d Cir.1943). To properly allege a claim for relief, a
plaintiff must provide a short and plain statement showing that
the pleader is entitled to relief so that the defendant is given
fair notice of what the claim is and the grounds on which it
rests. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964
(2007). The fourth count does not contain a statement of the
claim showing that Lyddy and Marcoccia are entitled to relief
or the grounds on which the claim rests.
Rather than stating a claim for relief, the fourth count appears
to set forth a prayer for temporary injunctive relief. As
such, as a procedural matter, it is not properly asserted as a
separate count of the complaint. See Fed.R.Civ.P. 10(b). As
a substantive matter, such relief can not be granted because
under Rule 65(d), an injunction must be more specific than a
simple command that the defendants obey the law. Peregrine
Myanmar Ltd. v. Segal, 89 F.3d 41 (2d Cir.1996) (holding
it improper to issue an injunction barring a defendant from
making threats of spurious lawsuits); Sterling Drug, Inc. v.
Bayer AG, 14 F.3d 733, 748 (2d Cir.1994) (noting that an
injunction cannot be broadly worded to generally prohibit
unlawful activity); Hughey v. JMS Dev. Corp., 78 F.3d 1523,
1531 (11th Cir.1996) (noting that appellate courts will not
countenance injunctions that merely require someone to obey
the law); Epstein Family P'ship v. Kmart Corp., 13 F.3d
762, 771 (3d Cir.1994) ( “[I]njunctions, which carry possible
contempt penalties for their violation must be tailored to
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remedy the specific harms shown rather than to enjoin all
possible breaches of the law.”).
Indeed, to the extent Lyddy and Marcoccia seek to enjoin or
impose unwarranted burdens on the City's ability to prosecute
criminal conduct, such relief would only be appropriate in
exceptional circumstances, if at all. See Wooley v. Maynard,
430 U.S. 705 (1977) (noting that as a general rule, a court
will not enjoin the enforcement of a criminal statute, even if
unconstitutional, because doing so would seriously impair the
state's interest in enforcing its criminal laws and implicate the
concerns for federalism, and that to justify such interference
there must be exceptional circumstances and a clear showing
that an injunction is necessary in order to afford adequate
protection of constitutional rights). This is not such an
exceptional case.
*7 Accordingly, the fourth count, in so far as it is intended
to be a claim for relief, is dismissed with prejudice.
V. Motion to Strike
The City, the Board, and Cimmino all move to strike the
following allegations of the complaint: (1) the language
in paragraph 12 which characterizes Cimmino's conduct as
“sexual antics ... reminiscent of the boom-boom room” and
mentions an alleged instance where Cimmino restrained a boy
with masking tape and another where he put a kindergarten
boy across his legs and massaged his buttocks; (2) the
language in paragraph 13 that the school superintendent
treated Lyddy and Marcoccia not as victims, but as
perpetrators and their allegations as an embarrassment; (3)
the language in paragraph 15 that Cimmino was “perhaps
emboldened by his employer's failure to discipline him;” and
(4) paragraphs 19, 22, and 27 in their entirety.
Although motions to strike are generally disfavored, they may
be granted if the allegations have no bearing on the claims
alleged, are likely to prejudice the movant, or have “criminal
overtones.” G.I. Holdings, Inc. v. Baron & Budd, 238
F.Supp.2d 521, 555 (S.D.N.Y.2002); see also Fed.R.Civ.P.
12(f) (stating that redundant, immaterial, impertinent, or
scandalous matter may be stricken from any pleading).
With regard to the allegations in paragraph 12 which
characterize Cimmino's conduct as “sexual antics”
reminiscent of a “boom-boom room,” the court agrees that
they improperly cast a derogatory and salacious light on the
allegations and are irrelevant and immaterial and thus they
are stricken. The court disagrees, however, that the allegations
relating to Cimmino's conduct vis-a-vis students are irrelevant
to the sexual harassment claim and thus these allegations are
not stricken.
With regard to paragraphs 13 and 15, the defendants are
correct that it is improper for Lyddy and Marcoccia to allege
their interpretation of the facts or to surmise as to the reasons
for any alleged conduct, i.e., that the superintendent treated
them as perpetrators not as victims (paragraph 13), and
that Cimmino was “perhaps emboldened by his employer's
failure to discipline him” (paragraph 15). These assertions are
stricken.
With regard to paragraphs 19 and 27, the allegations relating
to Lyddy's and Marcoccia's personal lives and health, i.e.,
(1) that the filing of the criminal complaint against Lyddy
and Marcoccia coincided with the death of Lyddy's husband
(paragraph 19) and (2) that the emotional distress Lyddy
and Marcoccia suffered “has not been lessened by their
personal health issues” and the details of those health issues
(paragraph 27) are immaterial and irrelevant and are stricken.
The remaining allegations in these paragraphs appear to be
relevant and are not stricken.
Paragraph 22, which only contains statements about the
prominence of the “Lyddy clan” in the Bridgeport area and
the details of certain family members' accomplishments, is
stricken in its entirety as irrelevant and immaterial.
VII. Motions to Disqualify Counsel For the City
*8 Lyddy and Marcoccia move pursuant to rules
1.7, 7 1.8(b), and 1.9(2) 8 of the Connecticut Rules of
Professional Conduct to disqualify counsel from jointly
and simultaneously representing both the City and the
Board. They assert that counsel's joint representation of both
defendants creates an insoluble conflict “stemming from
the cross claims which independent counsel for each would
plead against the other ... center[ing] around accusations
that the other's action/inaction, misconduct/inattention, hiring
policies/mismanagement/lack of supervision and so forth
brought them in as defendants to this action.”
Even if the motions to disqualify had merit, and even if
Lyddy and Marcoccia had standing to assert such a conflict of
interest, 9 the motions are denied as moot in light of the fact
that the claims against the City are dismissed.
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CONCLUSION
For the foregoing reasons, the motion of the City and the
Board [doc. # 26] to dismiss is GRANTED. Cimmino's
motion to dismiss [doc. # 28] is GRANTED. The motions to
strike [docs.26 and 30] are GRANTED in part and DENIED
in part. Lyddy and Marcoccia shall file an amended complaint
consistent with this ruling within 30 days. Lyddy's and
Marcoccia's motions to disqualify counsel [docs.52 and 53]
are DENIED.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 2697452
Footnotes
1 In Bell Atlantic, the Supreme Court indicated that the accepted rule of Conley v. Gibson, “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, had outworn its usefulness and that it
was time to adopt a new and heightened pleading standard .” 127 S.Ct. at 1968 (quoting Conley v. Gibson,
355 U.S. 41, 45–46 (1957)). After Bell Atlantic, the Second Circuit questioned whether the Court intended the
stricter standard for assessing the adequacy of pleadings announced in Bell Atlantic should apply generally
or only in antitrust cases, and concluded that “the Court is not requiring a universal standard of heightened
fact pleading, but is instead requiring a flexible plausibility standard.” Iqbal v. Hasty, 490 F.3d 143, 157–58
(2d Cir.2007).
2 Although Lyddy and Marcoccia assert in their opposition papers that under general agency principles the
City can be deemed their employer because they are paid out of the City treasury, this factual assertion is
not alleged in the complaint and thus cannot be considered by the court. Henthorn v. Dep't of Navy, 29 F.3d
682, 688 (D.C.Cir.1994) (noting that factual allegations in briefs or memoranda of law may not be considered
when deciding a Rule 12(b)(6) motion); cf. Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (noting that the
facts alleged in the complaint control for the purpose of a motion to dismiss).
3 Lyddy and Marcoccia assert in their opposition papers that the first claim, even though it only alleges that
the City deprived them of their rights “as provided by Title VII of the Civil Rights Act of 1964, § 710, et seq.
as amended 42 U.S.C. § 2003, et seq[,]” somehow also states a “common law tort” claim against the City,
but they do not identify the nature of this “common law tort,” nor do they allege any acts or conduct by the
City to support any tort claim. Although the court must, on a motion to dismiss, liberally construe a complaint,
Gregory v. Daly, 243 F.3d 687, 691 (2d Cir .2001), this does not mean that it must construe a complaint to
include a claim that is not pleaded. Augienello v. Coast–to–Coast Fin. Corp., 64 Fed. Appx. 820 (2d Cir.2003).
In the absence of any factual allegations supporting such a tort claim and the grounds on which it rests, this
supposed claim, assuming it is alleged, is also dismissed. Amron v. Morgan Stanley Inv. Advisors, Inc., 464
F.3d 338, 343 (2d Cir.2006) (dismissing a complaint for failing to give the defendant fair notice of what the
claim is and the grounds on which it rests). However, if Lyddy and Marcoccia wish to pursue such a tort claim
they shall file an amended complaint within 30 days setting forth sufficient factual allegations to afford the
defendants fair notice of the claim and the grounds on which it is based and is plausible on its face. Bell
Atlantic Corp. v. Twombly, 127 S.Ct. at 1960.
4 This allegation as to Cimmino's purpose is irrelevant in determining whether there is a viable claim of
emotional distress because the dispositive issue is whether “the employer's conduct, not the motive behind
the conduct, is extreme or outrageous.” Miner v. Town of Cheshire, 126 F.Supp.2d 184, 195 (D.Conn.2000));
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Lyddy v. Bridgeport Bd. of Educ., Not Reported in F.Supp.2d (2007)
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Huff v. West Haven Bd. of Educ., 10 F.Supp.2d 117, 123 (D.Conn.1998) (“The employer's motive ... is not
relevant to whether the act was outrageous; it is the act itself which must be outrageous.”).
5 The complaint additionally alleges that Cimmino (1) restrained a student with masking tape over his mouth
and body, (2) put a kindergarten boy across his lap and massaged his buttocks, and (3) gave a staff member
thong underpants. Because this conduct was directed at third persons and not at either Lyddy or Marcoccia,
it falls within the ambit of bystander emotional distress, which allows recovery, within certain limitations, for
emotional distress as a result of harm done to a third party. Clohessy v. Bachelor, 237 Conn. 31, 49 (1996).
However, to maintain such a claim, the Clohessy court set forth four requirements: First, the plaintiff bystander
must be closely related to the injury victim. Second, the bystander's emotional injury must be caused by the
contemporaneous sensory perception of the event or conduct that causes the injury. Third, the injury to the
victim must be substantial, resulting in either death or serious physical injury. Finally, the plaintiff bystander
must have sustained a serious emotional injury—that is, “a reaction beyond that which would be anticipated
in a disinterested witness and which is not an abnormal response to the circumstance.” Id. at 52–54. Lyddy
and Marcoccia do not make any of these allegations. Thus, the conduct that was directed at third parties and
not directly at them cannot be considered in assessing Cimmino's conduct for the purpose of the claim for
intentional infliction of emotional distress.
Moreover, in light of the fact that the emotional distress claim is only alleged as to Cimmino, the conduct of
other Board members and the unidentified police detective, who allegedly called Lyddy at home on the day
of her husband's funeral to tell her there was a warrant for her arrest and called Marcoccia and warned her
that if she retained a lawyer a warrant for her arrest would be issued within 48 hours, is also not relevant.
6 The third count is only brought against the City. It does not name the Board in apparent recognition of the
fact that a plaintiff may assert a claim under § 1983 simultaneously with a Title VII claim only if the two claims
are sufficiently distinguishable. See Carrero v. New York City Hous. Auth., 890 F.2d 569, 576 (2d Cir.1989).
Indeed, “although Title VII supplements and overlaps § 1983, it remains an exclusive remedy when a state
or local employer violates only Title VII.” Moche v. City Univ. of N.Y., 781 F.Supp. 160, 168 (E.D.N.Y.1992)
(quoting Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1576 (5th Cir.1989)).
7 Rule 1.7 of the Rules of Professional Conduct sets forth the general rule on conflicts of interest in an attorney-
client relationship. Burton v. Mottolese, 267 Conn. 1 (2003). Subsection (a) of the Rule provides: “A lawyer
shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other
client; and (2) Each client consents after consultation.”
8 Rule 1.9 of the Rules of Professional Conduct governs disqualification of counsel for a conflict of interest
relating to a former client. The rule states that: “A lawyer who has formerly represented a client in a matter
shall not thereafter: (1) Represent another person in the same or a substantially related matter in which
that person's interests are materially adverse to the interests of the former client unless the former client
consents after consultation; or (2) Use information relating to the representation to the disadvantage of the
former client except as Rule 1.6 would permit with respect to a client or when the information has become
generally known.”
9 Because of the substantial costs associated with disqualification of a party's counsel, and because
disqualification is often misused by opposing parties as a procedural weapon and a technique of harassment,
standing to seek disqualification is ordinarily limited to present or former clients who would be adversely
affected by the continuing representation, whether or not they are parties to the present litigation. Restatement
(Third) of the Law Governing Lawyers § 6. Thus, as a general rule, courts do not allow parties who are not
directly affected to invoke the interests of a client with whom they are not in privity. Id.; see also Premium
Prods. Sales Corp. v. Chipwich, Inc., 539 F.Supp. 427, 435 (S.D.N.Y.1982) (“[U]nless the integrity of the
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action currently before the court is threatened ..., the courts must refrain from imposing the burdens of
an attorney disqualification on a client and leave the matter to state or federal disciplinary proceedings.”);
United States Football League v. Nat'l Football League, 605 F.Supp. 1448, 1452 (S.D.N.Y.1985) (citing
authorities for the proposition that disqualification motions are “often interposed for tactical reasons” and
produce unnecessary delay).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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McFadden v. Ortiz, Not Reported in F.Supp.2d (2013)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2013 WL 1789593
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Alexander McFADDEN, Plaintiff,
v.
Jose D. ORTIZ, Executive Officer Chase JP
Morgan Chase & Co., and James Simon, Manager
Chase JP Morgan Chase & Co., Defendants.
No. 5:12–CV–1244 (MAD/ATB).
|
April 26, 2013.
Attorneys and Law Firms
Alexander McFadden, Pine City, NY, pro se.
Jose D. Ortiz, Executive Officer for Chase JP Morgan Chase
& Co., Houston, TX.
James Simon, Manager for Chase JP Morgan Chase & Co.,
New York, NY.
MEMORANDUM–DECISION AND ORDER
MAE A. D'AGOSTING, District Judge.
I. INTRODUCTION
*1 Plaintiff pro se Alexander McFadden (“McFadden”), an
inmate at the Southport Correctional Facility (“SCF”), filed
this action pursuant to 42 U.S.C. § 1983. In his complaint,
Plaintiff appears to allege that Defendants, two executives
of Chase JP Morgan Chase & Co. (“Chase”), violated his
constitutional rights through conduct that, in some way,
involved a bank account. See Dkt. No. 1 at ¶ 4.
On August 7, 2012, Magistrate Judge Andrew T. Baxter
issued an Order and ReportRecommendation, recommending
that the Court dismiss Plaintiff's complaint in its entirety
with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
See Dkt. No. 5. Currently before the Court are Plaintiff's
objections to Magistrate Judge Baxter's August 7, 2012 Order
and ReportRecommendation.
II. BACKGROUND
In his Order and Report–Recommendation dated August 7,
2012, Magistrate Judge Baxter recommended that Plaintiff's
motion to proceed in forma pauperis (“IFP”) should be denied
by the Court and, upon review of the complaint, that this
action be dismissed in its entirety with prejudice pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt. No. 5 at 9.
Further, Magistrate Judge Baxter recommended that if the
Court approves his report, the Court should certify that any
appeal from this matter will not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3). See id.
Regarding Plaintiff's complaint, Magistrate Judge Baxter's
Order and ReportRecommendation recommends that because
there is no indication that either Defendant acted under “color
of state law,” and because there are no allegations that either
or both Defendants “conspired” with any state actors to bring
this action under section 1983, Plaintiff's complaint should be
dismissed. See Dkt. No. 5 at 5.
Regarding Plaintiff's claim that Defendants violated New
York Penal Law by offering false documents for filing,
tampering with public records, and falsifying business
records, Magistrate Judge Baxter recommended that because
there is no private right of action to enforce either state or
federal criminal statutes, Plaintiff is barred from bringing
a claim to enforce these provisions of the New York State
Criminal Law. See Dkt. No. 5 at 6.
Accordingly, Magistrate Judge Baxter recommended this
Court hold that, due to Plaintiff's failure to state a claim under
42 U.S.C. § 1983 upon which relief can be granted, combined
with the courts inability to determine what venue might be
appropriate, Plaintiff's motion for IFP should be denied, and
Plaintiff's complaint should be dismissed in its entirety with
prejudice pursuant 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Dkt.
No. 5 at 9.
In his “objections” to Magistrate Judge Baxter's Order and
Report–Recommendation, Plaintiff simply provides the Court
with language from various cases discussing various types of
objections and the Court's authority to review unpreserved
errors. See Dkt. Nos. 14, 15.
III. DISCUSSION
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A. Review of a magistrate judge's decision
*2 If a party files specific objections to a magistrate judge's
report-recommendation, the district court performs a “de
novo determination of those portions of the report of specified
proposed findings or recommendations to which objections
is made.” 28 U.S.C. § 636(b)(1) (2006). However, if a
party files “[g]eneral or conclusory objections or objections
which merely recite the same arguments [that were presented]
to the magistrate judge,” the court simply reviews those
recommendations for clear error. O'Diah v. Mawhir, No. 9:08–
CV–322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011)
(citations and footnote omitted). At the conclusion of the
appropriate review, “the court 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)(1).
B. In Forma Pauperis application
In order for a plaintiff to proceed without payment of any
fees, he must first meet the financial criteria for IFP status.
See 28 U.S.C. § 1915(a)(1). The plaintiff must submit an
affidavit, including a statement of all assets, establishing his
inability to pay the filing fee of $350.00. See id. Here, Plaintiff
submitted a standard IFP application form, but answered
only some of the relevant questions. Furthermore, while
Plaintiff is incarcerated and has filed a motion to proceed
IFP, his application states that, in the past twelve months,
he has had income from “[b]usiness, profession or other
self employment,” and has “millions of dollars” in “cash,
checking or savings accounts.” See Dkt. No. 2 at ¶¶ 3, 4.
Plaintiff, however, does not answer the question that asks
him to “describe the source of money and state the amount
received and what you expect you will continue to receive .”
See id. at ¶ 3. Plaintiff answers “yes” to the questions asking
whether he owns “real estate, stocks, bonds, securities, other
financial instruments, automobile or any other assets.” See id.
at ¶ 5. Once again, however, Plaintiff does not complete the
question by describing the property and stating its value. See
id. Lastly, the form indicates that Plaintiff only has $9.60 in
his prison account, and that during the last six months prior
to this application, the average balance in his prison account
was $4.03. See Dkt. No. 2 at 2.
If Plaintiff's claims are true and he does in fact have millions
of dollars and real estate or other valuable property, then he
cannot meet the financial requirements for proceeding IFP.
Generally, when plaintiff has failed to properly complete the
IFP request, the court will deny IFP without prejudice and
allow plaintiff to resubmit the form with proper information.
However, in this case, based upon the inadequacy of Plaintiff's
responses, combined with his failure to state a plausible
cause of action and the fact that amendment would be
futile as discussed below, even if Plaintiff met the financial
requirements for IFP, the Court would still find dismissal of
this action to be proper.
C. Sufficiency of the complaint
1. Legal Standard
*3 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 it 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. See 28 U.S.C. §
1915(e)(2)(B) (i)-(iii).
2. Application
a. Color of state law
Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983.
See Dkt. No. 1. To state a claim under section 1983, a plaintiff
must allege two elements: (1) the defendant acted under color
of state law; and (2) as a result of the defendant's actions, the
plaintiff suffered a deprivation of her rights or privileges as
secured by the Constitution of the United States. See Annis v.
County of Westchester, 136 F.3d 239, 245 (2d Cir.1998).
Under extremely limited circumstances not alleged here,
private actors, such as Defendant, may be held liable under
section 1983. See White v. Monarch Pharmaceuticals, Inc.,
No. 08–CV–0430, 2009 WL 3068217, *1 (2d Cir. Sept. 28,
2009); see also Rendell—Baker v. Kohn, 457 U.S. 830, 838–
42 (1982). The law does not reach private conduct, no matter
how “discriminatory or wrongful.” Annis, 136 F.3d at 245
(quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)).
In the present matter, Plaintiff names two executives of Chase
as Defendants. Along with being very difficult to determine
what these Defendants allegedly did to Plaintiff, there is no
indication that either Defendant acted under color of state
law. Moreover, the complaint does not allege or suggest
that Defendants conspired with a state actor to violate his
constitutional rights. Further, Plaintiff does not allege any
conduct attributable to either Defendant sufficient to establish
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their personal involvement in any alleged constitutional
deprivation. See Wright v. Smith, 21 F.3d 496, 501 (2d
Cir.1994) (quotation and other citations omitted).
Based on the foregoing, the Court finds that Magistrate Judge
Baxter correctly recommended that the Court should dismiss
the complaint.
b. Criminal statutes
Plaintiff states in the “Causes of Action” section of his
complaint that Defendants violated the New York Penal Law
regarding falsifying business records, tampering with public
records, and offering false documents for filing. See Dkt. No.
1 (citing N.Y. PENAL LAW §§ 175.10, 175.25, and 175.35).
Even if this is true, however, there is no private right of
action to enforce either state or federal criminal statutes. See
Abrahams v. Incorporated Village of Hempstead, No. 08–
CV–2584, 2009 WL 1560164, *8 (E.D.N.Y. June 2, 2009)
(holding that dismissal of civil suit for perjury was proper
because there is no private right of action for perjury under
New York Law). Therefore, even assuming, arguendo, that
Defendants violated some criminal statutes, Plaintiff may not
bring a claim based on those statutes to enforce New York
Criminal Law.
*4 As such, Magistrate Judge Baxter correctly
recommended the Court find that Plaintiff has failed to allege
a plausible cause of action.
c. Venue
Venue in federal-question cases is generally determined by 28
U.S .C. § 1391(b) which provides that
[a] civil action wherein jurisdiction
is not founded solely on diversity of
citizenship may, except as otherwise
provided by law, be brought only in (1)
a judicial district where any defendant
resides, if all defendants reside in the
same State, (2) a judicial district in
which a substantial part of the events
or omissions giving rise to the claim
occurred, ... or (3) a judicial district in
which any defendant may be found, if
there is no district in which the action
may otherwise be brought.
28 U.S.C. § 1391(b). In this case, one of the Defendants
is listed with a Houston, Texas address, while the other
Defendant is listed as having a New York City address.
See Dkt. No. 1 at ¶¶ 3(a) and (3)(b). Thus, neither of the
Defendants reside, or are located, in the Northern District of
New York. Plaintiff is incarcerated at Southport Correctional
Facility, located in the Western District of New York.
Therefore, since both Plaintiff and one of the Defendants are
New York residents, this case could clearly not be brought
as a diversity action. Moreover, under Plaintiff's section 1983
claim, venue is not proper in the Northern District of New
York. All Defendants do not reside in the same state, neither
Defendant is located in this district, and the complaint does
not allege any conduct that occurred in the Northern District
of New York.
Under 28 U.S.C. § 1406, a district court faced with a case
brought “laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have
been brought.” 28 U.S.C. § 1406(a). The Second Circuit
has suggested that “a district court should not dismiss for
improper venue on its own motion except in extraordinary
circumstances.” Concession Consultants, Inc. v. Mirisch, 355
F.2d 369 (2d Cir.1966).
In the present matter, the Court finds and agrees with Judge
Baxter's Order and ReportRecommendation that this case
presents precisely the extraordinary circumstances making it
proper for the Court to dismiss for improper venue sua sponte.
d. Leave to amend
When a pro se complaint fails to state a cause of action,
the court generally “should not dismiss 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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000)
(internal quotation and citations omitted). Of course, an
opportunity to amend is not required where “[t]he problem
with [the plaintiff's] cause of action is substantive” such that
“better pleading will not cure it .” Id. (citation omitted); see
also Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d
Cir.1993).
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McFadden v. Ortiz, Not Reported in F.Supp.2d (2013)
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*5 Here, the Court agrees with Magistrate Judge Baxter that
any attempt by Plaintiff to amend his complaint would be
futile. As discussed, although Plaintiff alleges “due process
violations,” section 1983 does not permit such actions to be
brought against private individuals absent some involvement
by the state. Moreover, Plaintiff does not have the right to
enforce New York State criminal statutes.
Based on the foregoing, the Court finds that Magistrate Judge
Baxter correctly recommended that the Court should dismiss
Plaintiff's complaint with prejudice.
IV. CONCLUSION
After carefully considering Magistrate Judge Baxter's Order
and Report–Recommendation, the applicable law, and for the
reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Baxter's August 7, 2012
Order and Report–Recommendation is ADOPTED in its
entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's application to proceed in forma
pauperis is DENIED; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); and
the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants' favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve Plaintiff
with a copy of this Memorandum–Decision and Order in
accordance with Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 1789593
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 362 of 520

Moran v. County of Suffolk, Not Reported in F.Supp.3d (2015)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Villalobos v. Smith, S.D.N.Y., July 12, 2022
2015 WL 1321685
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Michael MORAN, Plaintiff,
v.
COUNTY OF SUFFOLK and John
Doe, the person intended to be the police
officer who shot plaintiff, Defendants.
No. 11 Civ. 3704(PKC)(GRB).
|
Signed March 24, 2015.
Attorneys and Law Firms
Michael Caliguiri, Ralph G. Bell, Bauman & Kunkis, New
York, NY, for Plaintiff.
Arlene S. Zwilling, Hauppauge, NY, for Defendants.
MEMORANDUM AND ORDER
PAMELA K. CHEN, District Judge.
*1 Plaintiff Michael Moran (“Plaintiff”) initiated this
proceeding against defendants County of Suffolk (the
“County”) and a John Doe police officer under 42 U.S.C.
§ 1983 alleging that the use of unreasonable deadly force
against him violated his rights under, inter alia, the Fourth
Amendment of the United States Constitution. (Dkt. 1
(“Complaint” or “Compl.”).) Plaintiff also asserts claims
under state law and common law, including claims for assault
and battery and negligence. Presently before the Court is the
County's motion for summary judgment. For the reasons set
forth below, the County's motion is granted and the case is
dismissed.
BACKGROUND
I. Factual Background
Unless otherwise stated, the following facts are taken from
Plaintiff's Rule 56.1 Statement (Dkt. 23 (“Pl.St.”)), and all
reasonable inferences are drawn in Plaintiff's favor as the non-
moving party. 1 See Terry v. Ashcroft, 336 F.3d 128, 137 (2d
Cir.2003).
On August 4, 2010, at around 4:00 p.m., Plaintiff was waiting
for his girlfriend outside a Dunkin Donuts located in West
Babylon, New York. (Pl.St.¶ 3.) Plaintiff was sitting on a
bench and had with him a black fabric backpack containing
his laundry. (Id. ¶ 5.) Plaintiff observed two police cars enter
the Dunkin Donuts parking lot. (Id.¶ 4.) After a few moments,
Plaintiff picked up his backpack and walked to the entrance
of the Dunkin Donuts. (Id. ¶ 5.) From outside, Plaintiff saw
his girlfriend in handcuffs and struggling with police officers.
(Id. ¶ 6; Dkt. 21 (Declaration of Ralph G. Bell, dated Mar. 17,
2014 (“Bell Decl.”)) Ex. A at 150–51, 154.)
Suffolk County Police Officers Robert Bodenmiller
(“Bodenmiller”), Jennifer Price (“Price”), and Charles
Erdmann (“Erdmann”) had gone to the Dunkin Donuts in
response to a call about an emotionally disturbed woman
in the vicinity. (Pl. St. ¶¶ 8, 11, 24; see, e.g., Bell Decl.
Ex. B at 15–18.) Officers Bodenmiller and Price identified
Plaintiff's girlfriend as someone who matched the description
they were provided, and were in the process of detaining and
questioning her. (Bell Decl. Ex. B at 24–38.) At the time,
Bodenmiller and Price each had a baton, mace, a taser, and a
Glock semiautomatic handgun. (Pl.St.¶ 23.)
Plaintiff ran inside and stopped just inside the entrance and
dropped his backpack to the ground next to his left foot.
(Id. ¶¶ 7, 35–36; Bell Decl. Ex. A at 158–60.) 2 Plaintiff
testified that Price, who was closest to him, approached him
and instructed him to “calm down.” (Pl. St. ¶ 38; Bell Decl.
Ex. A at 161.) Bodenmiller “observed a dark colored object”
in Plaintiff's right hand. (Pl.St.¶ 8.) Bodenmiller did not see
Plaintiff point the object. (Id.¶ 9.) Nor did Plaintiff raise his
hands toward the officers or verbally threaten them. (Id. ¶¶
10, 12–14.) Bodenmiller saw Price turn towards Plaintiff, but
did not hear her say anything or see her raise her hands. (Id. ¶
15.) Bodenmiller further stated that Plaintiff did not lunge or
jump at Price. Price never requested Bodenmiller's assistance
or indicate to him that she felt threatened. (Id. ¶¶ 17–18.)
*2 Without saying anything to Plaintiff, Bodenmiller fired
two shots, aiming for Plaintiff's “center mass.” (Id. ¶¶ 19–
20, 41.) Bodenmiller testified that he had been trained to fire
twice at the center mass of a subject when in close proximity,
and, “[i]f the threat does not stop” to take a third shot to the
head. (Bell Decl. Ex. B at 57–58.) Plaintiff was struck with
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Moran v. County of Suffolk, Not Reported in F.Supp.3d (2015)
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two bullets, one in the right index finger and one at the “rib
line.” (Pl.St.¶ 21.) Plaintiff heard “three pops” and felt pain in
his stomach before falling to his knees and landing on his right
side. (Id. ¶ 42.) No weapon or black object was ever found or
recovered on or near Plaintiff's person following the shooting.
(Id. ¶ 22.) Neither Price nor the third officer, Erdmann, drew
their weapons during the incident. (Id. ¶¶ 17, 25.)
Two months after the shooting, Price issued Plaintiff a
ticket for “obstructing governmental administration” at the
instruction of one of her supervisors. (Id. ¶ 26.)
About a year after the shooting, on September 27, 2011,
the Suffolk County Police Department issued a Department
Directive regarding the “Use of Force–Use of Firearms and
Deadly Physical Force” (hereinafter “Use of Force Directive”
or “Directive”). (Bell Decl. Ex. H at 24–1.) The purpose of the
Directive was to “establish[ ] the limits within which the use
of deadly force, particularly the use of firearms, by members
of the Suffolk County Police Department is permitted, and
outlines certain situations in which the use of firearms, or
other means of deadly force, is not permitted.” (Pl. St. ¶¶
28, 29; Bell Decl. Ex. H at 24–1.) Under the “Rules and
Regulations” section of the Directive, “[a]n officer may
discharge a firearm only in” specified situations, including
“Confrontational Situations” defined as “[w]hen reasonable
and necessary to defend an officer or another from what the
officer reasonably believes to be the use, or imminent use, of
deadly force.” (Pl. St. ¶ 30; Bell Decl. Ex. H at 24–2 (emphasis
in original).) The Use of Force Directive further provides that
“[s]ince all possible combinations of circumstances cannot
be envisioned ... a police officer may use deadly force as an
emergency measure to avoid the imminent unlawful use of
deadly force which is about to occur by reason of a situation
occasioned or developed through no fault of the officer; and,
which is of such gravity that, according to ordinary standards
of intelligence and morality, the desirability of avoiding
such injury clearly outweighs the desirability of avoiding the
conduct sought to be prevented by [the Directive's] Rules and
Procedures.” (Bell Decl. Ex. H at 24–4.)
Plaintiff alleges that Bodenmiller is the subject of another
excessive force suit claiming that Bodenmiller wrongfully
“utilized a shield to restrain” a prisoner, who subsequently
died in police custody on May 6, 2011. (Bell Decl. Ex. B at
10–11; Pl. St. ¶ 27.)
II. Procedural History
*3 Plaintiff commenced this action on August 1, 2011,
naming as defendants the County and a John Doe as
“the person intended to be the police officer who shot
plaintiff.” (Compl. at 1.) The County answered on August
16, 2011. (Dkt.3.) On September 6, 2011, Plaintiff submitted
a letter to Magistrate Judge William. D. Wall requesting
discovery regarding the identity of the police officer “in order
that said individual may be correctly named and served in
the lawsuit.” (Dkt.4.) Following a pretrial conference, Judge
Wall issued an order dated October 6, 2011 requiring that
“[m]otions to join new parties or amend the pleadings” be
filed by March 22, 2012 and that discovery be completed by
June 14, 2012. (Dkt. 7–1 at 1.) On or around November 8,
2011, Plaintiff served a summons for John Doe “n/k/a Robert
Bodenmiller” 3 via substitute service at the Suffolk County
Police Department. (Dkt 8 at 2 (Proof of Service for John
Doe).) Plaintiff did not, however, amend the Complaint to
name Bodenmiller. Indeed, to this day, Plaintiff has not sought
to amend the Complaint to name Bodenmiller as a defendant.
Thereafter, on June 20, 2012, Defendants furnished Plaintiffs
with the Police Department's Internal Affairs file regarding
the shooting, which indicated that Bodenmiller was the officer
who shot Plaintiff. (See Dkt. 11; Bell Decl. Ex. H.) Plaintiff
then deposed Bodenmiller on July 10, 2013. (Bell Decl. Ex.
B.) On October 15, 2013, discovery concluded and the parties
filed a joint proposed pretrial order that still indicated a “John
Doe” on the caption. (Dkt. 16 at 1). At a conference held on
October 22, 2013, the Court granted the County leave to file
its summary judgment motion.
LEGAL STANDARD
Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, “there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Redd v. N.Y. Div. of Parole, 678 F.3d 166, 173
(2d Cir.2012). A dispute is “genuine” when “the evidence
is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A
fact is material when it “might affect the outcome of the
suit under the governing law.” Id. Because Plaintiff, as the
non-moving party, has the “burden of proof at trial” on his
claim, the County's ability to satisfy this standard as to any
“essential element” of a claim “necessarily renders all other
facts immaterial,” Celotex Corp. v. Catrett, 477 U.S. 317,
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322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and entitles
the County to summary judgment.
In determining whether there are genuine disputes of material
fact, the court must “resolve all ambiguities and draw all
permissible factual inferences in favor of the party against
whom summary judgment is sought.” Terry, 336 F.3d at 137
(citation and quotation omitted). The nonmoving party cannot
avoid summary judgment simply by relying “on conclusory
allegations or unsubstantiated speculation.” Jeffreys v. City of
New York, 426 F.3d 549, 554 (2d Cir.2005) (quotations and
citations omitted). That party must offer “some hard evidence
showing that its version of the events is not wholly fanciful.”
Miner v. Clinton Cnty., New York, 541 F.3d 464, 471 (2d
Cir.2008) (quotations and citation omitted).
DISCUSSION
I. Plaintiff's Claims against the John Doe Police Officer
*4 The Court initially addresses the parties' dispute
regarding which defendants are involved in this action.
Plaintiff alleges that the John Doe police officer named
in the Complaint, now known to be Bodenmiller, used
excessive force in violation of Plaintiff's constitutional rights.
(Compl.¶¶ 8, 14.) In response to the County's summary
judgment motion, Plaintiff asserts that the case must proceed
against the John Doe officer because no summary judgment
motion was filed on behalf of the John Doe officer, “now
known to be Bodenmiller.” (Dkt. 22 (“Pl.Mem.”) at 11).
The County disputes Plaintiff's contention on the basis that
Bodenmiller has not been and cannot now be made a party to
this case. (Dkt. 24–8 (“Reply”) at 3.) The Court agrees.
Although Bodenmiller indisputably is the officer who shot
Plaintiff, Plaintiff did not amend the Complaint to substitute
Bodenmiller as the John Doe Defendant prior to the expiration
of the applicable statute of limitations, nor, for that matter, has
he done so at any point in this litigation. Plaintiff's failure to
timely amend the Complaint is fatal to his claims against the
John Doe Defendant.
Section 1983 claims arising in New York have a statute
of limitations of three years. Patterson v. Cnty. of Oneida,
N.Y., 375 F.3d 206, 225 (2d Cir.2004). Here, Plaintiff's
claim accrued on August 4, 2010, and the limitations period
expired on August 4, 2013. Plaintiff filed his Complaint
on August 1, 2011, naming as defendants the County and
“John Doe, the person intended to be the police officer who
shot plaintiff.” (Compl. at 1.) Plaintiff's claim against the
County is timely. As to the individual officer Defendant, the
general rule is that “ ‘John Doe’ pleadings cannot be used to
circumvent statutes of limitations because replacing a ‘John
Doe’ with a named party in effect constitutes a change in
the party sued.” Hogan v. Fischer, 738 F.3d 509, 517 (2d
Cir.2013) (quoting Aslanidis v. United States Lines, Inc., 7
F.3d 1067, 1075 (2d Cir.1993)). Substitutions of a party's
name for John Doe, therefore, “may only be accomplished” if
the amended pleading relates back to the date of the complaint
under Federal Rule of Civil Procedure 15(c). Aslanidis, 7
F.3d at 1075. Since Plaintiff did not amend his Complaint to
substitute Bodenmiller for the John Doe Defendant, Plaintiff's
claims against Bodenmiller are timely only if he is permitted
to file an amendment that “relates back” to the Complaint,
filed on August 1, 2011. See Krupski v. Costa Crociere S.
p. A., 560 U.S. 538, 541, 130 S.Ct. 2485, 177 L.Ed.2d 48
(2010) (“Rule 15(c) of the Federal Rules of Civil Procedure
governs when an amended pleading ‘relates back’ to the date
of a timely filed original pleading and is thus itself timely
even though it was filed outside an applicable statute of
limitations.”); Laureano v. Goord, No. 06 Civ. 7845(SHS)
(RLE), 2007 WL 2826649, at *5 (S.D.N.Y. Aug. 31, 2007)
(“When the statute of limitations would otherwise bar an
amendment, Rule 15(c) allows the claim if it ‘relates back’ to
the original complaint.” (citing Fed.R.Civ.P. 15(c)(3)).
*5 Plaintiff's counsel has not attempted to substitute
Bodenmiller either by moving to amend the Complaint, or
by addressing the amendment issue in his opposition to the
County's motion for summary judgment. Though it appears
that Plaintiff would prefer the Court ignore the amendment
issue, the Court considers sua sponte whether Plaintiff should
be granted leave to file an amended complaint. The Court
finds that he should not.
A. Relation Back Under Rule 15(c)(1)(C)
Rule 15(a) instructs courts that “leave to amend [a complaint]
‘shall be freely given when justice so requires.’ “ Foman
v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962) (citation omitted). Nevertheless, a motion to amend
“should generally be denied in instances of futility, undue
delay, bad faith or dilatory motive, repeated failure to cure
deficiencies ..., or undue prejudice to the non-moving party.”
Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d
Cir.2006); see Monahan v. N.Y.C. Dep't of Corr. 214 F.3d 275,
283 (2d Cir.2000) (Leave to amend should be given “absent
evidence of undue delay, bad faith or dilatory motive on the
part of the movant, undue prejudice to the opposing party, or
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futility.”). An amendment is futile if the claim to be added
would be barred by the applicable statute of limitations. Grace
v. Rosenstock, 228 F.3d 40, 53 (2d Cir.2000).
“Rule 15(c) (1)(C) provides the federal standards for relation
back.” Hogan, 738 F.3d at 517. Under Rule 15(c)(1)(C),
an amendment to change the party against whom a claim
is asserted will relate back only if all of the following
specifications are met:
(1) the claim must have arisen out
of conduct set out in the original
pleading; (2) the party to be brought in
must have received such notice that it
will not be prejudiced in maintaining
its defense; (3) that party should
have known that, but for a mistake
of identity, the original action would
have been brought against it; and ...
[4] the second and third criteria are
fulfilled within 120 days of the filing
of the original complaint, and ... the
original complaint [was] filed within
the limitations period.
Hogan, 738 F.3d at 517 (quoting Barrow v. Wethersfield
Police Dep't., 66 F.3d 466, 468–69 (2d Cir.1995) (emphasis
in Hogan); see Fed.R.Civ.P. 15(c)(1)(C)(i)-(ii).
With respect to what constitutes “mistaken identity” for
purposes of permitting relation back under Rule 15(c), the
Second Circuit in Barrow held that:
Rule 15(c) does not allow an amended
complaint adding new defendants
to relate back if the newly added
defendants were not named originally
because the plaintiff did not know their
identities . Rule 15(c) explicitly allows
the relation back of an amendment
due to a ‘mistake’ concerning he
identity of the parties (under certain
circumstances), but not the failure
to identify individual defendants
when the plaintiff knows that such
defendants must be named cannot be
characterized as a mistake.
*6 66 F.3d at 470 (emphasis added). 4
In other words, where a plaintiff is mistaken about the identity
of the proper party to be sued, an amendment to name
that party may relate back under Rule 15(c). Id. at 469. 5
However, where the plaintiff knows who the proper party
is, just not by name, there is no mistake about identity that
will permit relation back under Rule 15(c). See Hogan, 738
F.3d at 518 (“This Court's interpretation of Rule 15(c)(1)
(C) makes clear that the lack of knowledge of a John Doe
defendant's name does not constitute a ‘mistaken identity.’
”) In that situation, any amendment to add the proper party's
name, once determined, must be made within the statute
of limitations. See id. at 517 (reiterating that “ ‘John Doe’
pleadings cannot be used to circumvent statutes of limitations
because replacing a ‘John Doe’ with a named party in effect
constitutes a change in the party sued”).
Here, Plaintiff was not mistaken about the identity of the
proper John Doe officer to sue; rather, he simply did not
did know the officer's name when he filed suit. In initiating
this action, Plaintiff intended to sue the “police officer who
shot plaintiff” on August 4, 2010. (Compl. at 1.) Plaintiff
identified that officer as “John Doe” in the Complaint
because he did not know Bodenmiller's name at the time, not
because of any mistake regarding Bodenmiller's role in, or
liability for, the shooting. Though Plaintiff was unaware of
Bodenmiller's identity, he was not mistaken about the need
to name Bodenmiller as a defendant. (See Dkt. 4 (Plaintiff's
letter requesting discovery from the County regarding the
John Doe's officer's identity, and indicating that the officer
had to be “correctly named ... in the lawsuit”)); Barrow, 66
F.3d at 470 (Rule 15(c) does not permit relation back where
the “plaintiff knows that [the] defendant[ ] must be named”).
Thus, Plaintiff's failure to name Bodenmiller in this suit
does not constitute a mistake under Rule 15(c)(1)(C)(ii). See
Bender v. City of New York, No. 14 Civ. 4386(LTS)(GWG),
2015 WL 524283, at *3–4 (S.D.N.Y. Feb. 10, 2015) (under
Barrow, “[plaintiff] cannot satisfy Rule 15(c)(1)(C)(ii), as the
John Doe defendants were unnamed because [plaintiff] did
not know their names at the time she filed the complaint;
rather, she first learned this information only when the named
defendants made their initial disclosures”); Ceara v. Deacon,
No. 13 Civ. 6023(KMK), 2014 WL 6674559, at *4 (S.D.N.Y.
Nov.25, 2014) (plaintiff's reason for not serving officer within
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the three year period—that he did not know the identity of the
defendant-was insufficient to satisfy the mistake element of
Rule 15(c)(1)(C)); Vasconcellos v. City of New York, No. 12
Civ. 8445(CM), 2014 WL 4961441, at *5–6 (S.D.N.Y. Oct.2,
2014) (“[u]nder a straightforward application of Barrow,”
plaintiff's failure “to identify the Officer Defendants by name
in her original suit because she did not know their identities”
“cannot be characterized as a mistake” for purposes of Rule
15(c)); Strada v. City of New York, No. 11 Civ. 5735(MKB),
2014 WL 3490306, at *9 (E.D.N.Y. July 11, 2014) (“Barrow
precludes this Court from finding that [p]laintiff's failure to
amend the Complaint to name the individual officers was
a mistake contemplated by Rule 15(c).”); Ulloa v. City of
New York, No. 13 Civ. 5795(AKH), 2014 WL 1100226, at
*2 (S.D.N.Y.Jan.6, 2014) (“a plaintiff's lack of knowledge as
to the identity of John Doe defendants cannot be considered
a ‘mistake” (citation omitted)). Accordingly, Rule 15(c)(1)
(C) does not provide a basis to allow Plaintiff to amend the
Complaint to name Bodenmiller and relate the claims against
him back to the date of the original Complaint.
B. Relation Back Under Rule(c)(1)(A)
*7 In addition to relation back under Rule 15(c), the Courts
must examine the “controlling body of limitations law,” and
apply state law if it provides “a more forgiving principle of
relation back than the one provided” by Rule 15(c). Hogan,
738 F.3d at 518 (quoting Fed.R.Civ.P. 15, Advisory Comm.
Notes 1991); see Fed.R.Civ.P. 15(c)(1) (an amended pleading
also relates back to an earlier pleading if “the law that
provides the applicable statute of limitations allows relation
back”). The Court will thus examine whether a claim against
Bodenmiller would be timely under the relevant provisions of
the New York Civil Practice Law and Rules (“CPLR”).
1. Section 203 of the CPLR
A party may seek relation back for a previously unknown
defendant under CPLR § 203(c), New York's general relation
back statute. Strada, 2014 WL 3490306, at *6 (citing Bumpus
v. New York City Transit Auth., 66 A.D.3d 26, 883 N.Y.S.2d
99, 106 (App.Div.2009)). Under § 203, courts allow claims
against a new defendant to “relate back to timely filed
pleadings when (1) the new claim arose out of the same
conduct, transaction or occurrence as the original allegations;
(2) the new party is united in interest with the original
defendant, and by reason of that relationship can be charged
with such notice of the institution of the action that he will
not be prejudiced in maintaining his defense on the merits;
and (3) the new party knew or should have known that, but
for a mistake as to the identity of the proper parties, the
action would have been brought against him as well.” JCG
v. Ercole, No. 11 Civ. 6844(CM)(JLC), 2014 WL 1630815,
at *15 (S.D.N.Y. Apr. 24, 2014) (quoting Fisher v. Cnty. of
Nassau, No. 10 Civ. 0677(JS)(ETB), 2011 WL 4899920, at
*5 (E.D .N.Y. Oct. 13, 2011)), report and recommendation
adopted, 2014 WL 2769120 (S.D.N.Y. June 18, 2014).
Here, Plaintiff cannot avail himself of § 203 for the same
reasons that Rule 15(c) does not apply. Plaintiff cannot
establish the third prong of the test under § 203, which, like
Rule 15(c), requires a mistake as to the identity of the proper
party to be sued. As discussed above in the Rule 15(c) context,
the failure to name a defendant whom the plaintiff knows must
be named does not constitute a “mistake.” “The third prong
of § 203(c) ‘employs the same standard as the federal rule.’
” Bender, 2015 WL 524283, at *6 (quoting Sloane v. Town of
Greenburgh, No. 01 Civ. 11551(MBM), 2005 WL 1837441,
at *3 (S.D.N.Y. July 27, 2005)). Since Plaintiff cannot satisfy
Rule 15(c)'s mistake element, he also cannot satisfy the third
prong of § 203(c). Any claim against Bodenmiller therefore
would not relate back to the date of the Complaint under
CPLR § 203. See, e.g., Strada, 2014 WL 3490306, at *9.
2. Section 1024 of the CPLR
CPLR § 1024 allows “[a] party who is ignorant, ... of the
name or identity of a person who may properly be made
a party[ ][to] proceed against such person as an unknown
party by designating so much of his name and identity as
is known. If the name or remainder of the name becomes
known[,] all subsequent proceedings shall be taken under
the true name and all prior proceedings shall be deemed
amended accordingly.” Under CPLR § 306–b, once a John
Doe complaint is filed, a plaintiff must serve it on the correct
defendant within 120 days after the commencement of the
action.
*8 The Second Circuit recently held that CPLR § 1024
is more forgiving in relating back complaints compared to
the federal standard under Rule 15(c). See Hogan, 738 F.3d
at 518; accord Ceara, 2014 WL 6674559, at *5; Strada,
2014 WL 3490306, at *5. To invoke § 1024, a plaintiff must
show that: (1) the plaintiff “exercise[d] due diligence, prior
to the running of the statute of limitations, to identify the
defendant by name;” and (2) the plaintiff “describe[d] the
John Doe party in such form as will fairly apprise the party
that he is the intended defendant.” Hogan, 738 F.3d at 519
(alteration, citations and internal quotation marks omitted).
“Due diligence in this context requires that a plaintiff ‘show
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that he or she made timely efforts to identify the correct party
before the statute of limitations expired .’ ” Strada, 2014 WL
3490306, at *5 (quoting Justin v. Orshan, 14 A.D.3d 492, 788
N.Y.S.2d 407, 408 (N.Y.App.Div.2005)).
Plaintiff's inexplicable failure to amend the complaint—
despite learning Bodenmiller's identity shortly after filing the
Complaint—cannot satisfy the due diligence requirement of
§ 1024. Early in this litigation, Plaintiff sought discovery
of the identity of the John Doe police officer so “that said
individual may be correctly named and served[.]” (Dkt.4.)
Plaintiff then served a summons for John Doe, “n/k/a Robert
Bodenmiller[,]” at the Suffolk County Police Department on
or about November 8, 2011 (see Dkt. 8 at 2)—several months
before the March 22, 2012 court-imposed deadline for joining
new parties or amending the Complaint, and almost two years
before the expiration of the statute of limitations on August
4, 2013. Yet Plaintiff did not seek to amend the Complaint
in the time between November 8, 2011 and August 4, 2013.
Plaintiff still did not act to amend the Complaint after the
County furnished an Internal Affairs report on June 20, 2012
that named Bodenmiller as the officer who shot Plaintiff. Nor
did Plaintiff seek to amend the Complaint after conducting
a deposition of Bodenmiller on July 10, 2013. Even after
the County raised this issue in its summary judgment motion
papers, Plaintiff did not seek to amend. Moreover, Plaintiff
offers no explanation for his failure to amend the Complaint
or seek an extension of the time in which to do so. Because
Plaintiff learned the true identity of the John Doe Defendant
prior to the expiration of the statute of limitations, he cannot
invoke § 1024 to now add Bodenmiller as a defendant to
this action. See Strada, 2014 WL 3490306, at *6 (plaintiff
did not exercise due diligence where, inter alia, defendant
provided plaintiff with the names of the officers involved
prior to the expiration of the statute of limitations, and
plaintiff did not attempt to amend the Complaint). Cf. Ceara,
2014 WL 6674559, at *5 (plaintiff acted with due diligence
because plaintiff made efforts to ascertain defendant's full
identity, apprised the court of his efforts, and promptly filed an
amended complaint within thirty days of learning defendant's
name).
*9 Accordingly, an amendment to substitute Bodenmiller
for the John Doe Defendant would not relate back to the filing
date of Plaintiff's Complaint under federal or state law. Given
that the statute of limitations has run, amending the Complaint
to add Bodenmiller would be futile. Regrettably, Plaintiff has
buried his head in the sand, to his peril, with respect to this
fatal flaw in his Complaint. The Court is thus constrained
from granting Plaintiff leave to file an amended complaint,
and Plaintiff's claim against the John Doe Defendant must be
dismissed.
II. Plaintiff's Claims Against the County
A. Section 1983 Claim
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must
show the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws by a person acting under
the color of state law. 42 U.S.C. § 1983. “Section 1983 itself
creates no substantive rights; it provides only a procedure for
redress for the deprivation of rights established elsewhere.”
Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993). In this
action, Plaintiff's claims arise under the Fourth Amendment's
prohibition against unreasonable seizures. 6
Because municipalities may not be held vicariously liable
for the actions of their employees, a § 1983 claim against
a municipality must be premised on the theory that the
municipality maintained a policy, practice, or custom that
caused the plaintiff's constitutional injury. Monell v. Dep't
of Social Servs. of City of N.Y., 436 U.S. 658, 694–95, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978) (“[A] local government
may not be sued under § 1983 for an injury inflicted solely
by its employees or agents. Instead, it is when execution of
a government's policy or custom ... inflicts the injury that
the government as an entity is responsible under § 1983.”).
Courts in this Circuit apply a two-prong test to § 1983 claims
brought against a municipality. Vippolis v. Vill. of Haverstraw,
768 F.2d 40, 44 (2d Cir.1985). A “plaintiff must first prove
the existence of a municipal policy or custom in order to
show that the municipality took some action that caused his
injuries beyond merely employing the misbehaving officer.”
Id. (citation omitted). Next, a plaintiff must establish a “
‘direct causal link between [the] municipal policy or custom
and the alleged constitutional deprivation.’ ” Hayes v. Cnty.
of Sullivan, 853 F.Supp.2d 400, 439 (S.D.N.Y.2012) (quoting
City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197,
103 L.Ed.2d 412(1989)); accord Abreu v. City of New York,
657 F.Supp.2d 357, 360 (E.D.N.Y.2009) (quoting Canton,
489 U.S. at 385).
A policy or custom may be established by any of the
following: (1) a formal policy officially endorsed by the
municipality; (2) actions or decisions made by municipal
officials with decision-making authority; (3) a practice so
persistent and widespread that it constitutes a custom through
which constructive notice is imposed upon policymakers; or
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(4) a failure by policymakers to properly train or supervise
their subordinates, such that the policymakers exercised
“deliberate indifference” to the rights of the plaintiff. See
Parker v. City of Long Beach, 563 F. App'x 39 (2d Cir.2014),
as amended, (Apr. 21, 2014) (failure to train); Matusick v. Erie
Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir.2014) (widespread
and persistent practice); Hines v. Albany Police Dep't, 520 F.
App'x 5, 7 (2d Cir.2013) (actions of policymakers); Schnitter
v. City of Rochester, 556 F. App'x 5, 8 (2d Cir.2014) (failure
to train or supervise); Missel v. Cnty. of Monroe, 351 F. App'x
543, 545 (2d Cir.2009) (formal policy and act of a person with
policymaking authority for the municipality).
*10 Plaintiff alleges, in sum and substance, that the County
was deliberately indifferent to his rights due to its failure to
properly train or supervise its officers, including Bodenmiller.
(Compl.¶¶ 10–11.) Plaintiff points to two alleged policies in
support of his claims: (1) the Use of Force Directive, which
Plaintiff contends is “so vaguely worded” that it provides no
meaningful guidance on when officers may exercise deadly
force, and (2) Bodenmiller's deposition statement that he was
trained to fire two shots aimed at a subject's center mass.
(Pl. Mem. at 12–13.) Plaintiff asserts that the combination
of these two policies created “a situation where Bodenmiller
was shooting to kill” with only a vague directive on when
he should use deadly force, thereby causing a deprivation of
Plaintiff's constitutional rights. (Id. at 13–14.)
Deliberate indifference with respect to the failure to
train or supervise municipal employees exists where the
plaintiff establishes that (1) “a policymaker knows ‘to a
moral certainty’ that [municipal] employees will confront
a particular situation”; (2) “the situation either presents the
employee with ‘a difficult choice of the sort that training or
supervision will make less difficult,’ or ‘there is a history
of employees mishandling the situation’ “; and (3) “ ‘the
wrong choice by the [municipal] employee will frequently
cause the deprivation of a citizen's constitutional rights.’ “
Wray v. City of New York, 490 F.3d 189, 195–96 (2d Cir.2007)
(quoting Walker v. City of New York, 974 F.2d 293, 297–98
(2d Cir.1992)). The plaintiff must show the “policymaker's
inaction was the result of ‘conscious choice’ and not ‘mere
negligence.’ “ Cash v. Cnty. of Erie, 654 F.3d 324, 334 (2d
Cir.2011) (quoting Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 128 (2d Cir.2004)); see Feng Zhao v. City of New
York, 656 F.Supp.2d 375, 396 (S.D.N.Y.2009) (“To sustain
a Monell claim based on a failure to supervise or discipline,
the plaintiff must demonstrate that the decision-maker was
on notice of a potentially serious problem of unconstitutional
conduct, that the need for corrective action was obvious, and
that the decision-maker failed to investigate or take action in
circumstances suggesting deliberate indifference to the rights
of those being harmed.”)
“A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate
indifference for purposes of failure to train.” Connick v.
Thompson, ––– U.S. ––––, ––––, 131 S.Ct. 1350, 1360, 179
L.Ed.2d 417 (2011) (quoting Bd. of Cnty. Comm'rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137
L.Ed.2d 626, (1997)). Without actual or constructive “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.” Id. Nevertheless, “in a narrow range
of circumstances,” a municipality can be found to be
deliberately indifferent based on a single incident where
“the unconstitutional consequences of failing to train [are]
so patently obvious that a city should be liable under §
1983 without proof of a pre-existing pattern of violations.”
Connick, 131 S.Ct. at 1360–61; see Canton, 489 U.S. at
390 n. 10. The violation of constitutional rights must be a
“highly predictable consequence” of the failure to train or
supervise. Connick, 131 S.Ct. at 1361 (internal quotation
marks omitted).
*11 Even construing the evidence in the record most
favorably to Plaintiff, no rational jury could conclude that
the standard for municipal liability, under a failure to train
theory or any other theory, has been met. Plaintiff fails
to proffer evidence sufficient to permit a trier of fact to
find that the County has acted with deliberate indifference
in designing its training program or that the deficiencies
he cites led to the violation of his rights by Bodenmiller.
Most significantly, Plaintiff points to no evidence of similar
violations by purportedly untrained officers that may have
notified the County of any deficiencies with the County's
training of its officers with respect to the use of deadly
force and civilian encounters. The record is devoid of
evidence that before the events of August 4, 2010, the County
knew of a pattern or even one incident involving use of
excessive force or improper deadly force by Suffolk County
police officers. See Connick, 131 S.Ct. at 1360 (“pattern of
similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference”
on a failure to train theory). Although Bodenmiller testified
that he is a named defendant in another suit involving
allegation of excessive force, there is no indication that that
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event occurred before August 4, 2010. (Bell Decl. Ex. B at
10–11.) Plaintiff's submissions suggest that, to the contrary,
the incident occurred afterwards on May 6, 2011. (Pl.St.¶
27.) Nor is there any evidence indicating that the other
alleged incident involved a use of force comparable or similar
to the August 4, 2010 shooting. Thus, nothing suggests
that the County condoned or ignored repeated constitutional
violations.
To the extent Plaintiff relies on a single-incident theory of
liability (see Pl. Mem. at 13), that claim also fails because
Plaintiffs cannot show that the use of force training provided
by the County to its police officers is tantamount to a lack
of training. To make this showing, Plaintiffs must prove that
the County's police officers have an “utter lack of an ability
to cope with constitutional situations,” Connick, 131 S.Ct.
at 1363, and that “the need for more or different training
is so obvious and the inadequacy so likely to result in the
violation of constitutional rights,” Canton, 489 U.S. at 390.
Accord Breitkopf v. Gentile, No. 12 Civ.1084 (JFB)(AKT),
2014 WL 4258994, at *23 (E.D.N.Y. Aug. 29, 2014). Here,
it is uncontroverted that the County provided some use of
force training to Bodenmiller and his fellow officers. (See,
e.g., Pl. St. ¶ 19; Bell Decl. Ex. B at 57–58.) Bodenmiller
testified that he was trained at the police academy, and
annual training thereafter at the precinct, on the use of deadly
physical force. (Bell Decl. Ex. B at 88–89.) Bodenmiller
also testified to his understanding that he was “allowed to
use deadly force when [he] reasonably believe[d] that deadly
force is being used against [him] or a third person.” (Id . at
89.) Where, as here, a plaintiff challenges the adequacy of
training rather than the failure to train at all, courts repeatedly
have held that a plaintiff cannot rely on the single-incident
theory of municipal liability. See, e.g., O'Brien v. Barrows,
556 Fed. App'x. 2, 5 (2d Cir.2014) (“failing to provide an
armed police officer with any training about the constitutional
limitations on the use of deadly force could constitute
deliberate indifference” (emphasis in original)); Breitkopf,
2014 WL 4258994, at *23 (“Since Connick, some courts
have concluded that a plaintiff cannot rely on the single-
incident theory where she challenges the adequacy and not
the lack of the existence of training.”); Chamberlain v. City
of White Plains, 986 F.Supp.2d 363, 391–93 (S.D.N.Y.2013)
(collecting cases denying summary judgment based on lack
of any training, and dismissing claims challenging adequacy
of training).
*12 Plaintiff's contention that the Use of Force Directive
evidences the County's deliberate indifference by failing to
provide sufficiently specific guidance on the use of deadly
force also fails for the reasons already stated. See Yang
Feng Zhao, 656 F.Supp.2d at 394 (no triable issue of fact
based on assertion that training was deficient in not providing
guidance about when to believe a suspect's denial of guilt
and when to avoid questioning). Furthermore, the Directive
was issued in September 2011—over a year after Plaintiff
was shot in August 2010—a fact seemingly overlooked by
both parties. (Bell Decl. Ex. H at 24–1; see Reply at 4–7).
It is difficult to see how any purported deficiency in the as-
yet-unadopted Directive caused Bodenmiller to improperly
implement deadly force against Plaintiff.
Lastly, even assuming arguendo that some iteration of the Use
of Force Directive was in effect at the time of the shooting,
such a policy, coupled with the training that Bodenmiller
received about shooting twice at a subject's center mass, is still
insufficient to establish the County's deliberate indifference.
As previously discussed, Plaintiff has not presented any
evidence tending to show that the improper use of force
was a common problem in the County's police force. Nor
has Plaintiff offered any evidence about deficiencies in the
County's Use of Force Directive or training and how any
additional or other training might have altered Bodenmiller's
actions. Thus, Plaintiff cannot show that the shooting was
caused by a County policy, as opposed to Bodenmiller's
failure to follow the training he received. See Amnesty Am.,
361 F.3d at 129–30 (“The elements of an identified training
deficiency and a close causal relationship, which together
require the plaintiffs to prove that the deprivation occurred
as the result of a municipal policy rather than as a result of
isolated misconduct by a single actor, ensure that a failure
to train theory does not collapse into respondeat superior
liability.”). 7 Accordingly, the County is entitled to summary
judgment on Plaintiff's § 1983 claim.
B. Plaintiff's State Law Claims
Plaintiff asserts various state law claims against the County
and John Doe Defendant that appear to allege excessive
force, assault and battery, and negligent hiring, training, and
supervision of police officers. (Compl.¶¶ 17–31.) To the
extent these claims allege negligent training or supervision
by the County based on the same facts upon which the
Plaintiff's Section 1983 claim against the County is based, the
Court dismisses them, with prejudice, for the same reasons
discussed above. See Henry–Lee v. City of New York, 746
F.Supp.2d 546, 566 (S.D.N.Y.2010) (“To prevail on a [state
law] claim for negligent hiring, training, supervision, or
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retention, a plaintiff must prove that a municipality's failure
to properly train, hire, retain, or supervise ‘its police officers
in a relevant respect evidences a deliberate indifference to
the rights of its inhabitants.’ ” (quoting Jackson v. City of
New York, 192 A.D.2d 641, 596 N.Y.S.2d 457, 458 (1993))
(emphasis added)). As for the remaining state law claims
against both Defendants, the Court declines to exercise
supplemental jurisdiction over them under 28 U.S.C. § 1367,
and dismisses them without prejudice.
CONCLUSION
*13 The Court accordingly grants the County's motion for
summary judgment in its entirety, and dismisses Plaintiff's
Complaint. All of Plaintiff's claims, except his state law
claims that do not allege negligent training and supervision
by the County and his state law claims against the John Doe
Defendant, are dismissed with prejudice. The Clerk of Court
is respectfully requested to close this case.
SO ORDERED:
All Citations
Not Reported in F.Supp.3d, 2015 WL 1321685
Footnotes
1 The Court declines Plaintiff's invitation to deny the County's motion based on the County's failure to comply
with Local Rule 56.1. (See Pl. Mem. at 10.) Although the County's 56.1 Statement does not set forth
undisputed material facts supported by citations to competent evidence (see Dkt. 24–1), as required by the
Rule, the Court exercises its “broad discretion to ... to overlook a party's failure to comply with local court
rules[,]” and conducts its own review of the record. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir.2001). Accordingly, where relevant, the Court cites to supporting evidence in the record.
2 Plaintiff's account differs from the officers' in this regard; Price and Erdmann testified that Moran approached
the officers “aggressively” or in a “slow run.” (See Bell Decl. Exs. C. at 72 & D at 44, 58.) Bodemiller testified
that Moran “was charging towards Officer Price.” (Id. Ex. B at 44.) Plaintiff also denies having any object in
his right hand. (Pl.St.¶ 39).
3 The acronym “n/k/a” refers to the phrase “now known as.”
4 While there has been some debate over the continuing vitality of Barrow after the Supreme Court's decision
in Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010), the Court finds that
Barrow remains good law, and that, unlike Krupski, Barrow is directly relevant to the facts presented here.
See, e.g., Morales v. Cnty. of Suffolk, 952 F.Supp.2d 433, 437 (E.D.N.Y.2013) (finding that Krupski did not
address the key issue in Barrow, i.e., “whether a plaintiff's lack of knowledge as to the identity of ‘John Doe’
Defendants can be considered a ‘mistake’ or ‘error’ “ and citing decisions concluding that “Barrow remains
good law after Krupski.” ).
5 In Barrow, the Second Circuit cited the example of this type of mistake contained in the Advisory Committee
Notes for Rule 15(c): “when a defendant mistakenly sues an agency of the government without knowing that
the cause of action requires the defendant to sue an agency head.” 66 F.3d at 469.
6 Although Plaintiff also asserts claims under the due process clause and the Eighth Amendment, “[a]ll
claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness' standard, rather than under a ‘substantive due process' approach.” Graham v. Connor, 490
U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see Taylor v. Nassau Cnty., 11 Civ. 0934(SJF), 2012
WL 5472554, at *1 n. 2 (E.D.N.Y. Nov. 5, 2012) (addressing excessive force claim brought under Fourth and
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Fourteenth Amendment under Fourth Amendment only). The Eighth Amendment, which applies to claims of
excessive force brought by convicted prisoners, is also unavailable to Plaintiff. See Graham, 490 U.S. at 394;
Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).
7 Indeed, as discussed, Bodenmiller testified that he received use of force training when he first became a
County police officer and annually thereafter and that his understanding of the County's use of force policy
was that he was “allowed to use deadly force when [he] reasonably believe [d] that deadly force is being used
against [him] or a third person.” (Bell Decl. Ex. B at 89.)
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Moye v. City of New York, Not Reported in F.Supp.2d (2012)
© 2025 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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Murphy v. Sr. Investigator Neuberger, Not Reported in F.Supp. (1996)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
1996 WL 442797
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Eric W. MURPHY, Plaintiff,
v.
Sr. Investigator John NEUBERGER, Investigator
Harry Mulhall, Officer R. Croft, Officer Karen W. Hill,
Officer Kilgallon, Officer Charles Mays, C.O. Robert
Fernandez, Assistant Attorney General Nancy Snyder,
Attorney General G. Oliver Koppell, Commissioner
Anthony J. Schembri, New York City Department of
Corrections, City of New York, State of New York,
Jane Doe #1-7, and John Doe #1-7, Defendants.
No. 94 Civ. 7421 (AGS).
|
Aug. 6, 1996.
OPINION & ORDER
ALLEN G. SCHWARTZ, District Judge:
*1 Plaintiff Eric W. Murphy brings this action pro se against
various New York City and New York State defendants
seeking monetary and declaratory relief under 42 U.S.C. §§
1983, 1985, and 1986 on the grounds that defendants violated
his civil rights as secured by the Fourth, Fifth, Eighth, and
Fourteenth Amendments. Defendants have moved to dismiss
plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, arguing that plaintiff has failed to
state a claim upon which relief can be granted. For the reasons
discussed below, defendants' motions to dismiss plaintiff's
federal civil rights claims are denied as to plaintiff's claims
of false arrest, illegal search, and failure to arraign. As to the
remainder of plaintiff's federal claims, defendants' motions
are granted. In addition, the Court hereby dismisses plaintiff's
state law claim.
FACTS
Plaintiff is a former New York City Corrections Officer. This
case stems from investigations by state officials into alleged
tax evasions by plaintiff and the events arising from this
inquiry. Plaintiff has sued the State of New York, City of New
York, New York City Department of Corrections, and various
State and City officials in both their official and personal
capacities for violations of his constitutional rights.
According to plaintiff's complaint and affidavit 1 , plaintiff
went to the New York State Department of Law in
Albany, New York on August 5, 1993 where he met
with New York State defendant Senior Investigator John
Neuberger (sued herein as “Neuberger”) in the presence of
State defendant Investigator Harry Mulhall (“Mulhall”) and
another employee of the New York State Department of Law.
Compl., ¶¶ 11, 13; Affidavit of Eric W. Murphy dated October
11, 1994 (“Murphy Aff.”), ¶ 7. Neuberger allegedly handed a
sheet of paper to plaintiff which stated that plaintiff had failed
to file an income tax return. Murphy Aff., ¶ 8. Plaintiff denied
the allegations. Murphy Aff., ¶ 9. After plaintiff refused to
identify himself, plaintiff alleges Neuberger forced him to
relinquish his off-duty weapon through coercion, searched
and seized his personal property “without a lawful warrant
or permission,” and “placed [him] in chains” against his
will while Defendant Mulhall and the other officer/supervisor
looked on. Compl., ¶¶ 13, 16; Murphy Aff., ¶ 13. Plaintiff
also alleges the state officers did not read him his Miranda
rights and did not present him with a lawful warrant for his
arrest. Compl., ¶ 14. Moreover, plaintiff maintains he was
never brought before a “neutral judge for a 'probable cause'
hearing.” Compl., ¶ 17. Plaintiff allegedly learned that it was
“common practice to refuse a hearing on probable cause, that
[it] is a common practice to refuse a hearing for charges and/
or bail until submitting to fingerprinting.” Murphy Aff., ¶ 19.
On April 21, 1994, plaintiff received a written request
from New York City defendant Corrections Officer Robert
Fernandez (“Fernandez”) to appear at the New York City
Department of Corrections (“DOC”) headquarters at 9:00
a.m. on April 22, 1994. Compl., ¶ 20. Plaintiff's affidavit
indicates that he was called to the DOC to discuss alleged
“deranged” letters that plaintiff had been writing to Assistant
Attorney General Nancy Snyder (“Snyder”). Murphy Aff., ¶
40. Plaintiff believes the room into which he was called was
equipped with recording devices. Murphy Aff., ¶ 30. After
plaintiff refused to speak or identify himself, plaintiff alleges
State defendant Investigator R. Croft (“Croft”) grabbed
plaintiff and “put him in chains” while Fernandez, State
defendant Investigator Charles Mays (“Mays”), and another
officer from the State Department of Law observed. Compl.,
¶ 22. Again plaintiff alleges that the state officers did not
present him with a lawful warrant for his arrest, did not
inform him that he was under arrest, and did not read him his
Miranda rights. Compl., ¶ 23. The state officers took plaintiff
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to Manhattan Criminal Court to be “booked.” Murphy Aff., ¶
39. Plaintiff then alleges he was forced to pay Mays a $500.00
ransom. Compl., ¶ 27; Murphy Aff., ¶ 41.
*2 On July 12, 1994, Corrections Department attorney
Robert Moriber ordered plaintiff to report to the Inspector
General's office at the DOC. Compl., ¶ 29, Murphy Aff., ¶ 47.
State defendant Investigator Karen Hill (“Hill”) and two other
state police officers allegedly began to interrogate plaintiff.
Compl., ¶ 30. When plaintiff refused to speak or identify
himself, the officers allegedly arrested plaintiff and “forcibly
put cuffs on him.” Compl., ¶ 32. According to plaintiff, the
state officers did not inform him that he was under arrest,
did not read him his Miranda rights, and did not present him
with a lawful warrant. Compl., ¶ 31. Hill and the other two
officers brought plaintiff to Manhattan Criminal Court and
then transported him to Albany in the back seat of a small
car where he was “driven for over 4 hours in a cramped,
painful position with hands chained behind his back.” Compl.,
¶¶ 34, 37. Hill allegedly met State defendant Investigator
William Kilgallon (sued herein as “Kilgallon”) “somewhere
on the New York State Thruway where Plaintiff was then
taken against his will by Defendant Kilgallen [sic], shackled
in chains, taken to Albany Police Court in Albany, New York,
and deposited there to be 'booked' on open charges.” Compl.,
¶ 38.
Plaintiff alleges he was kept in “shackles” with his hands
behind his back for 8 hours and, by the time he was taken
to Albany City Court, he was “in severe pain, had not slept,
eaten or used the men's room for over 24 hours.” Compl., ¶
39; Murphy Aff., ¶ 53. While in jail, plaintiff allegedly went
eight days without appearing before a judge and was allegedly
forced to undergo psychological examinations. Compl., ¶¶ 40,
41. Moreover, because he refused to sign any papers while at
the jail, plaintiff alleges he was placed in solitary confinement
for over 100 hours without cause and was forced to sleep
under bright, hot lights. Compl., ¶ 44.
Plaintiff's complaint also includes allegations of a conspiracy
to deprive him of his constitutional rights. Compl., ¶ 53.
In addition, plaintiff contends defendants City of New York
(“City”) and State of New York (“State”) are parties “to
one or more contracts authorized by the State of New
York and the United States Code and General Statutes,
between themselves and the [DOC], New York State Police
Department, and New York State Attorney Generals Office.”
Compl., ¶ 64. Defendants DOC, City, and State allegedly
violated these contracts. Compl., ¶ 65. Plaintiff provides no
other meaningful details regarding his purported breach of
contract claim.
DISCUSSION
A. Standard in Deciding a Motion to Dismiss
In deciding a motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, the function of the
district court is to assess the legal feasibility of the complaint,
not to weigh the evidence that may be offered at trial. Odom v.
Columbia University, 906 F.Supp. 188, 193 (S.D.N.Y. 1995)
(citing Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d
35, 37 (2d Cir. 1990)). All factual allegations in the complaint
must be accepted as true and the complaint must be viewed
in the light most favorable to the plaintiff. Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974);
LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). A motion
to dismiss should not be granted “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.” Yusuf v. Vassar
College, 35 F.3d 709, 713 (2d Cir. 1994)(quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80
(1957)). In addition, where the plaintiff is proceeding pro
se, the court must construe the complaint liberally. Haines
v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30
L.Ed.2d 652 (1972)(per curiam); Platsky v. CIA, 953 F.2d 26,
28 (2d Cir. 1991)(per curiam).
B. Section 1983 Claims
*3 Title 42, United States Code, Section 1983 (“Section
1983”) provides that “[e]very person who, under color of
[state law] subjects, or causes to be subjected, any ... person
within the jurisdiction [of the United States] to the deprivation
of any rights ... secured by the Constitution and laws, shall
be liable to the party injured in an action at law [or] suit
in equity ....” 42 U.S.C. § 1983. The Supreme Court has
interpreted the “plain words” of this statute as imposing
liability “only for conduct which 'subjects, or causes to be
subjected' the complainant to a deprivation of a right secured
by the Constitution and its laws.” Rizzo v. Goode, 423 U.S.
362, 370-71, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976),
quoted in Herrera v. Scully, 815 F.Supp. 713, 721 (S.D.N.Y.
1993).
1. Lack of Personal Involvement
It is well settled in the Second Circuit that a plaintiff must
assert direct and personal involvement of the defendant in
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the alleged constitutional deprivations in a claim brought
under Section 1983. McKinnon v. Patterson, 568 F.2d 930,
934 (2d Cir. 1977). Failure to set forth facts pertaining to
such personal involvement results in a “fatally defective”
complaint. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d
Cir. 1987).
Moreover, the doctrine of respondeat superior does not apply
in a Section 1983 action; a showing of personal responsibility
on the part of the defendant is required. Johnson v. Glick,
481 F.2d 1028, 1034 (2d Cir. 1973). The only circumstances
under which direct participation may not be necessary is
when a supervisory official has “actual or constructive
notice of unconstitutional practices and demonstrates 'gross
negligence' or 'deliberate indifference' by failing to act.”
Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.
1989)(quoting Meriwether v. Coughlin, 879 F.2d 1037, 1048
(2d Cir. 1989)).
Because plaintiff fails to allege personal involvement on
the part of some of the defendants, his claims against
them must be dismissed. Plaintiff appears to include former
New York City Department of Corrections Commissioner
Anthony J. Schembri (“Schembri”) and former State Attorney
General G. Oliver Koppell (sued herein as “Koppel”) in
his broad allegation that all the defendants deprived him
of his constitutional rights as secured under the Fourth,
Fifth, Eighth, and Fourteenth Amendments. Although the
caption of plaintiff's complaint names Schembri and Koppell
as defendants, plaintiff's complaint is entirely devoid of
any allegations of either Schembri or Koppell's personal
involvement in violating plaintiff's constitutional rights. It
is insignificant that Schembri and Koppell were in high
positions of authority at the time plaintiff filed his complaint,
as this is an “insufficient basis for the imposition of personal
liability.” McKinnon, 568 F.2d at 934. Plaintiff sets forth no
facts indicating that either Schembri or Koppell demonstrated
gross negligence or deliberate indifference by failing to act
with regard to the alleged unconstitutional practices that
occurred during plaintiff's arrests or his post-arrest periods
of detention. Plaintiff has therefore failed to state a claim
against Schembri and Koppell and the claims against these
defendants are dismissed.
*4 Plaintiff also fails to set forth sufficient facts to
indicate personal involvement on the part of City defendant
Fernandez. Plaintiff does not implicate Fernandez in the
events surrounding the alleged arrests and detentions of
August 5, 1993 or July 12, 1994. As to the alleged April 22,
1994 arrest, plaintiff claims the request to appear at the DOC
was delivered by Fernandez and that Fernandez was present
at the DOC on April 22, 1994 when the alleged constitutional
violations occurred. However, plaintiff does not allege that
Fernandez participated in any of the events that caused his
alleged deprivation of constitutional rights. Plaintiff only
contends that “Fernandez never said or did anything to come
to [his] aid ....” Murphy Aff., ¶ 37. Because Fernandez did
not subject, or cause plaintiff to be subjected, to a deprivation
of constitutional rights, plaintiff's claims against Fernandez
must be dismissed for failure to state a claim.
Plaintiff's allegations with regard to State defendant Snyder
only concern her involvement in the alleged conspiracy and
her alleged orders to arrest plaintiff. See Compl., ¶¶ 18, 42;
Murphy Aff., ¶¶ 43, 61. Her alleged involvement with regard
to the conspiracy and false arrest claims are discussed further
below. As to the remainder of plaintiff's claims, plaintiff sets
forth no facts indicating that Snyder had any involvement.
Consequently, plaintiff's remaining claims against Snyder are
dismissed for failure to state a claim.
In its memorandum of law, the State asserts that plaintiff has
failed to set forth facts regarding the personal involvement of
State defendants Mulhall, Croft, and Kilgallon in plaintiff's
arrests and detentions. Based on the allegations of plaintiff's
complaint and affidavit, the Court cannot agree. Plaintiff
implicates State defendant Mulhall in the events of August 5,
1993 when defendants allegedly searched plaintiff and seized
his personal property without a lawful warrant and failed
to read plaintiff his Miranda warnings. Compl., ¶¶ 13-14;
Murphy Aff., ¶ 16. State defendant Croft allegedly forced
plaintiff's hands into chains and was present during the search
of plaintiff and his belongings on April 22, 1994. Compl.,
¶¶ 22-23; Murphy Aff., ¶¶ 33-34. State defendant Kilgallon
allegedly “shackled [plaintiff] in chains” and transported him
to Albany City Court on July 12, 1994. Compl., ¶ 38; Murphy
Aff., ¶ 51. Despite the conclusion that there are sufficient
allegations of personal involvement on the part of these State
defendants, plaintiff's claims against them must be dismissed
for failure to allege a constitutional violation on all but three
grounds, as discussed further below.
2. Eleventh Amendment Bar
Plaintiff asserts claims against the State of New York and
various State officials in their official capacities. For the
reasons that follow, these claims are dismissed.
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In the absence of consent, the Eleventh Amendment bars a
suit in federal court in which a State or one of its agencies
or departments is named as a defendant, regardless of the
nature of the relief sought. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d
67 (1984). Moreover, a State is not considered a “person”
within the meaning of Section 1983 and thus cannot be held
liable pursuant to that statute. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d
45 (1989). Accordingly, plaintiff's claims against the State of
New York are dismissed.
*5 Eleventh Amendment immunity from suit in federal court
is extended to state officials sued in their official capacity
“when a suit against state officials is in fact a suit against a
State ... regardless of whether it seeks damages or injunctive
relief.” Pennhurst, 465 U.S. at 102, 104 S.Ct. at 909. As
the Supreme Court reasoned in Will, “a suit against a state
official in his or her official capacity is not a suit against the
official but rather is a suit against the official's office.” Will,
491 U.S. at 71, 109 S.Ct. at 2312. Thus, when the State is
the “real, substantial party in interest,” meaning that damages
would be paid from public funds in the state treasury, the
State can invoke its sovereign immunity despite the naming of
individual defendants. Edelman v. Jordan, 415 U.S. 651, 663,
94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974)(quoting Ford
Motor Co. v. Dept. of Treasury of Indiana, 323 U.S. 459, 464,
65 S.Ct. 347, 350, 89 L.Ed. 389 (1945)).
Plaintiff seeks substantial monetary relief against the former
Attorney General of the State of New York, an Assistant
Attorney General, and eight State investigators, all of whom
were acting in their official capacities as employees of the
State of New York. Plaintiff does not dispute this. Although
plaintiff names these defendants as parties, the source of
recovery will be the State. Therefore, plaintiff's claims against
the defendants in their official capacities are barred by the
Eleventh Amendment. 2
3. Allegations of Constitutional Violations
Plaintiff alleges that defendants violated his constitutional
rights as protected under the Fourth, Fifth, Eighth, and
Fourteenth Amendments. Reading plaintiff's complaint and
affidavit liberally, this Court concludes that plaintiff has set
forth facts sufficient to support his claims of false arrest,
illegal search, and failure to arraign. Defendants' motions to
dismiss are denied as to these claims. All other claims in
plaintiff's complaint are dismissed.
a. Sufficient Constitutional Claims
Plaintiff alleges that defendants violated his Fourth
Amendment right to be free from “unreasonable ... seizures”
by arresting him without a warrant and without probable
cause and then failing to bring him before a magistrate
for a probable cause hearing. See, e.g., Compl., ¶¶ 14, 17.
Moreover, he alleges his right to due process under the
Fifth and Fourteenth Amendments was violated when he
was arrested and his personal property searched and seized
without a lawful warrant. Compl., ¶ 58.
The Fourth Amendment has been construed to require that
an arrest be grounded in probable cause. Beck v. Ohio, 379
U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964).
Probable cause exists when there are “facts and circumstances
'sufficient to warrant a prudent man in believing that the
[[[suspect] had committed or was committing an offense.”'
Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 862, 43
L.Ed.2d 54 (1975)(citation omitted), quoted in Lowth v. Town
of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996).
*6 The Fourth Amendment further requires prompt judicial
determination of probable cause as a prerequisite to an
extended restraint on liberty following an arrest without a
warrant. Gerstein v. Pugh, 420 U.S. at 125, 95 S.Ct. at 868-69.
The Gerstein Court concluded that a defendant may only be
detained for as long as it takes to process “the administrative
steps incident to arrest,” but left it to the individual states
to integrate the probable cause hearing into their various
pretrial procedures. Gerstein, 420 U.S. at 114, 95 S.Ct. at
863. However, if a suspect is not brought before a magistrate
to establish probable cause, the suspect must be released,
Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (7th
Cir. 1986), cert. denied 481 U.S. 1028, 107 S.Ct. 1952,
95 L.Ed.2d 525 (1987), as the consequences of failing to
promptly administer probable cause determinations could be
far “more serious than the interference occasioned by arrest.”
Gerstein, 420 U.S. at 114, 95 S.Ct. at 863.
In Williams v. Ward, the Second Circuit addressed the issue
of the permissible length of prearraignment detention for
persons arrested in New York City. 845 F.2d 374 (2d Cir.
1988). In its interpretation of Gerstein, the Court concluded
that the determination of probable cause may constitutionally
occur within seventy-two hours of the initial arrest. Id. at 387.
In County of Riverside v. McLaughlin, the Supreme Court
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attempted to resolve the ambiguity created by Gerstein and
established that “prompt” generally means within 48 hours of
the warrantless arrest. 500 U.S. 44, 57, 111 S.Ct. 1661, 1670,
114 L.Ed.2d 49 (1991). A longer delay presumptively violates
the Fourth Amendment. Powell v. Nevada, 511 U.S. 79, 114
S.Ct. 1280, 1283, 128 L.Ed.2d 1 (1994).
An arrest supportable by less than probable cause may be
actionable under Section 1983 as a claim for false arrest,
provided the “seizure” in question is “unreasonable.” Posr
v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991). In order to state
a claim for false arrest, a plaintiff must show that (1) the
officer intended to confine the plaintiff; (2) the plaintiff was
conscious of the confinement and did not consent to it; and
(3) the confinement was not otherwise privileged. Lowth, 82
F.3d at 569. The Second Circuit has held, however, that a
Section 1983 claim for false arrest is barred if the plaintiff
was subsequently convicted of the offense for which he
was arrested. Cameron v. Fogarty, 806 F.2d 380, 388 (2d
Cir. 1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95
L.Ed.2d 501 (1987). See also Malady v. Crunk, 902 F.2d 10,
11 (8th Cir. 1990); King v. Goldsmith, 897 F.2d 885, 886
(7th Cir. 1990); Walker v. Schaeffer, 854 F.2d 138, 143 (6th
Cir. 1988). But see Rose v. Bartle, 871 F.2d 331, 351 (3d
Cir. 1989)(stating that favorable termination of a criminal
proceeding is not an element of a Section 1983 false arrest
claim). Entry of a guilty plea, even if the plea is to a charge
lesser than that for which the plaintiff was arrested, also
operates as a defense to a Section 1983 action for false
arrest. Roundtree v. City of New York, 778 F.Supp. 614, 619
(E.D.N.Y. 1991).
*7 Just as the Fourth Amendment prohibits seizures of
persons without probable cause, generally a search must be
conducted pursuant to a lawful warrant. Marshall v. Barlow's,
Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d
305 (1978). However, an individual lawfully arrested may
be searched without a warrant incident to the arrest. United
States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38
L.Ed.2d 427 (1973)(lawful custodial arrest authorizes “a full
search of the person” arrested).
Plaintiff alleges with regard to each arrest that he was neither
presented with a lawful warrant nor arrested with probable
cause. Compl., ¶¶ 16, 23, 31. Plaintiff further contends that
he was not brought before a magistrate for a probable cause
hearing when he was arrested and that he was detained in the
Albany Correctional Facility “for 8 consecutive days without
seeing a judge.” Compl., ¶¶ 17, 36, 41. Taking these facts
to be true, as is necessary on a motion to dismiss, plaintiff
sets forth facts sufficient to constitute a false arrest claim. 3
Lacking probable cause, the defendants could have acted with
an unreasonable and unconstitutional level of intrusion in
restraining plaintiff's freedom of movement. Further, plaintiff
does not simply maintain that his arraignments were delayed,
but that they never occurred. If plaintiff was denied probable
cause hearings and detained for eight days without seeing
a judge, as he contends, a clear violation of his Fourth
Amendment rights has transpired. See Powell, 511 U.S.
at ––––, 114 S.Ct. at 1283 (where a suspect's arrest was
not validated by a magistrate until four days elapsed, the
court stated that the delay was presumptively unreasonable
under McLaughlin' s 48-hour rule). Plaintiff therefore states a
claim for false arrest and failure to arraign 4 and defendants'
motions to dismiss are denied with respect to these claims.
Because an arrest must be “lawful” in order to justify any
search incident to arrest, plaintiff also states a claim for the
alleged unlawful search and seizure of his papers and effects
as prohibited by the Fourth Amendment. Consequently,
defendants' motions to dismiss are denied with regard to this
claim, as plaintiff sufficiently states a claim of illegal search
under the Fourth Amendment.
b. Insufficient Constitutional Claims
Although a federal court will construe a pro se plaintiff's
inartful pleading liberally, Haines v. Kerner, 404 U.S. 519,
520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)(per
curiam); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988), a pro se plaintiff cannot completely avoid the pleading
requirements of the Federal Rules of Civil Procedure. Traguth
v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). This Circuit has
established that “a complaint consisting of nothing more than
naked assertions, and setting forth no facts upon which a
court could find a violation of the Civil Rights Acts, fails
to state a claim under Rule 12(b)(6).” Martin v. N.Y. State
Dept. of Mental Hygiene, 588 F.2d 371 (2d Cir. 1978)(per
curiam); Gant v. Wallingford Board of Education, 69 F.3d
669 (2d Cir. 1995). Due to the capacity of “unfounded suits
under §§ 1983 and 1985 to disrupt the delivery of services
by public officers, courts have dismissed suits that pleaded
violations of constitutional rights in conclusory fashion
without specification of the facts constituting a violation.”
Barr v. Abrams, 641 F.Supp. 547, 552 (S.D.N.Y. 1986), aff'd,
810 F.2d 358 (2d Cir. 1987).
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*8 Plaintiff claims that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment
by the “unreasonable actions of defendants on August 5,
1993, and July 12, 1994, depriving Plaintiff of his right
to go to work, and the companionships [sic] of his family
while he was incarcerated.” Compl., ¶ 57. The Eighth
Amendment, however, does not attach until after conviction
and sentencing, as “it was designed to protect those convicted
of crimes.” Ingraham v. Wright, 430 U.S. 651, 664, 97
S.Ct. 1401, 1409, 51 L.Ed.2d 711 (1977). Since none of
plaintiff's allegations concern events occurring after he was
convicted and/or sentenced, plaintiff's Eighth Amendment
claim is dismissed.
Plaintiff's claim that he was never read his Miranda rights is
also dismissed for failure to state a claim upon which relief
may be granted. The Supreme Court has repeatedly held that
the Miranda warnings are not themselves required by the
Constitution but are rather prophylactic measures to insure
that a suspect's Fifth Amendment rights are not violated. See,
e.g., Oregon v. Elstad, 470 U.S. 298, 305-07 & n. 1, 105 S.Ct.
1285, 1291-92 & n. 1, 84 L.Ed.2d 222 (1985). The appropriate
remedy for the failure to read a suspect his Miranda warnings
is the exclusion of any self-incriminating evidence, not a civil
rights action. Neighbour v. Covert, 68 F.3d 1508, 1510 (2d
Cir. 1995); Turner v. Lynch, 534 F.Supp. 686, 689 (S.D.N.Y.
1982). Plaintiff's claim regarding defendants' failure to read
plaintiff his Miranda warnings is therefore dismissed.
Plaintiff also seeks recovery on the grounds that defendants
used excessive force in the course of his arrests. In Graham
v. Connor, the Supreme Court held that an excessive force
claim invokes the protections of the Fourth Amendment
which guarantees citizens the right “to be secure in their
persons ... against unreasonable ... seizures” of the person.
490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443
(1989). An excessive force claim must thus be analyzed
under the Fourth Amendment “reasonableness” standard. Id.
The Graham Court advised that the “'reasonableness' of a
particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. at
1872. Factors to consider include: “the severity of the crime
at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id.
It is proper to dismiss an excessive force claim under Rule
12(b)(6) when a plaintiff does not allege an unreasonably
excessive use of force. Roundtree v. City of New York,
778 F.Supp. 614, 621 (E.D.N.Y. 1991). Plaintiff appears to
allege that defendants used excessive force by placing him in
handcuffs and requiring him to keep his hands in handcuffs
behind his back while being driven from Manhattan Criminal
Court to Albany Police Court. See Compl., ¶¶ 13, 22, 32,
37. Under the Fourth Amendment “reasonableness” test, such
actions do not rise to the level of a constitutional violation
of plaintiff's Fourth Amendment rights. See Soares v. State
of Connecticut, 8 F.3d 917, 922 (2d Cir. 1993) (recognizing
that “there is still no clear authority on whether and under
what circumstances, if any, a person has a constitutional right
not to be handcuffed in the course of an arrest”). Although
the injuries suffered need not be permanent or severe to
recover under an excessive force claim, see Robinson v. Via,
821 F.2d 913, 924 (2d Cir. 1987), plaintiff's complaint does
not allege any injuries resulting from the use of handcuffs.
Plaintiff only asserts that he was forced to travel to Albany in
a “painful, cramped, dehumanizing position.” Murphy Aff.,
¶ 50. Because the facts alleged do not constitute excessive
force, plaintiff's claim is dismissed. 5
4. Monell Liability
*9 Plaintiff seeks to hold the City and the DOC liable
for the alleged violations of his civil rights that occurred in
connection with his three arrests. Plaintiff seeks to establish
municipal liability based on the existence of a municipal
policy that deprived plaintiff of his constitutional rights and
the doctrine of respondeat superior. For the reasons discussed
below, plaintiff's claims against the City and the DOC are
dismissed.
In Monell v. New York City Department of Social Services, the
Supreme Court held that a municipality may be held liable as
a “person” within the meaning of Section 1983 for violations
of civil rights caused by the municipality's policy or custom.
436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611
(1978); Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987).
A municipal policy may be inferred from the informal acts
or omissions of supervisory officials, even though the policy
“has not received formal approval through the body's official
decisionmaking channels.” Turpin v. Mailet, 619 F.2d 196,
199 (2d Cir. 1980)(quoting Monell, 436 U.S. at 690-91, 98
S.Ct. at 2036). However, proof of a single incident of alleged
constitutional activity is not sufficient to impose liability
under Section 1983 absent an official custom, practice or
policy which can be attributed to the municipal policymaker.
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105
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S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). Moreover, neither
Monell nor its progeny “authorizes the award of damages
against a municipal corporation based on the actions of
one of its officers when in fact ... the officer inflicted no
constitutional harm.” City of Los Angeles v. Heller, 475 U.S.
796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986);
Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994).
The Monell Court specifically declined to read Section 1983
as imposing “liability vicariously on governing bodies solely
on the basis of the existence of an employer-employee
relationship with a tortfeasor.” Monell, 436 U.S. at 692, 98
S.Ct. at 2036. Thus, municipal liability under Section 1983
cannot be founded upon the doctrine of respondeat superior.
Because plaintiff fails to allege any sustainable constitutional
violations on the part of a municipal employee, namely
Fernandez, plaintiff's claims against the City under Monell
must be dismissed. As discussed above, plaintiff has failed
to set forth facts alleging personal involvement on the
part of Fernandez in the alleged deprivation of plaintiff's
constitutional rights. Consequently, plaintiff's claims against
the City must be dismissed, as Monell liability cannot be
found where a municipal officer inflicted no constitutional
harm. 6 See City of Los Angeles v. Heller, 475 U.S. 796, 799,
106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986). 7
Unlike the City, a municipal entity liable under Monell, the
DOC is not a suable entity. Section 396 of the New York City
Charter states that unless otherwise provided, “all actions and
proceedings for the recovery of penalties ... shall be brought
in the name of the City of New York and not in that of any
agency.” Jolly v. New York City Dept. of Corrections, 89 Civ.
4520, 1989 WL 153053, at *3 (S.D.N.Y. Dec. 13, 1989).
This language has been strictly construed, even against pro
se plaintiffs. Torres v. New York City Dept. of Corrections, 93
Civ. 6296, 1995 WL 63159, at *1 (S.D.N.Y. Feb. 15, 1995).
Plaintiff's claims against the DOC are therefore dismissed.
*10 Moreover, plaintiff's claim that the City and the DOC
are liable under the doctrine of respondeat superior also fails,
as a municipality cannot be held vicariously liable for the
unconstitutional actions of its employees merely because it is
their employer. As discussed above, the DOC is not a suable
entity. Plaintiff's claims against the City and the DOC on this
ground are thus insufficient and are dismissed.
5. Absolute Immunity
To the extent that they are being sued in their individual
capacities, all of the State defendants contend that they are
entitled to absolute immunity from plaintiff's claims, or in
the alternative, qualified immunity. For the reasons set forth
below, the Court rejects the State's attempt to cloak all
of these defendants with absolute immunity. However, the
Court concludes that the defense of absolute immunity is
an additional basis for dismissing the claims against State
defendant Koppell.
The Supreme Court made clear in Imbler v. Pachtman that
prosecutors are immune from liability in suits under Section
1983 that arise from their prosecutorial actions in initiating
and presenting the State's case in court. 424 U.S. 409, 427, 96
S.Ct. 984, 993, 47 L.Ed.2d 128 (1976). Absolute immunity
from liability has been deemed necessary for prosecutors
in order to “enable them to function independently and
effectively, without fear or harassment.” Id. at 571.
The scope of absolute immunity will extend to all “activities
that can fairly be characterized as closely associated with
the conduct of litigation or potential litigation ....” Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986). Thus,
“the actions of a prosecutor are not absolutely immune merely
because they are performed by a prosecutor.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 2615, 125
L.Ed.2d 209 (1993). The examination of the functional nature
of the prosecutorial behavior, rather than the status of the
person performing the act, is determinative in the absolute
immunity analysis. Imbler, 424 U.S. at 430, 96 S.Ct. at
994. Prosecutors are afforded only qualified immunity from
suit when they act in an “investigative” or “administrative”
capacity. Id.
Plaintiff makes no specific allegations in his complaint as to
Koppell. Koppell's involvement appears to be limited to his
duties as Attorney General. This prosecutorial role entitles
Koppell to absolute immunity under Imbler.
Plaintiff's allegations with regard to Snyder pertain to her
involvement in an alleged conspiracy to deprive plaintiff
of his constitutional rights and her alleged orders to arrest
plaintiff. See Compl., ¶¶ 18, 42; Murphy Aff., ¶¶ 43,
61. As discussed further below, plaintiff's allegations of a
conspiracy are dismissed on other grounds. As to plaintiff's
claims concerning the alleged orders to arrest him, the
sparse facts before the Court make the functional analysis
that is necessary in deciding the absolute immunity defense
impossible. If Snyder's actions concern the pre-trial or trial
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phases of a case against plaintiff, which it appears they
most likely do, then she is clearly entitled to absolute
immunity. See Cook v. Houston Post, 616 F.2d 791, 793
(5th Cir. 1980)(where a prosecutor was entitled to absolute
immunity for the factual investigation necessary to prepare
a case). If, however, Snyder's involvement relates to a
nonadvocacy function, such as assisting the investigators
in actually executing the arrest, then she is only entitled
to qualified immunity. See Barr v. Abrams, 810 F.2d at
362 (recognizing the meaningful distinction between filing
a criminal information and procuring an arrest warrant,
on the one hand, and executing the arrest warrant on the
other; the former is entitled to absolute immunity while the
latter is in the realm of qualified immunity). Because the
factual record before the Court is undeveloped, the Court
is unable to determine precisely what Snyder's role was
in plaintiff's arrests. Consequently, the Court cannot accord
Snyder absolute immunity at this stage. However, Snyder
is entitled to qualified immunity for all claims except those
concerning the false arrest, as discussed further below. 8
*11 Although the State argues that Neuberger, Mulhall,
Croft, Hill, Kilgallon, and Mays -- investigators in the
Criminal Prosecutions Bureau of the Attorney General's
Office -- are entitled to absolute immunity, the Court does
not agree. The allegations contained in plaintiff's complaint
indicate the investigators' activities were of an investigatory
nature, rather than a prosecutorial nature. In Barr v. Abrams,
a case in some respects similar to the present case, this Court
held that investigators on the Attorney General's staff were
entitled to qualified immunity, rather than absolute immunity.
See Barr v. Abrams, 641 F.Supp. at 554. Although the
investigators will not be accorded absolute immunity, all their
actions -- except those arising from the false arrest, illegal
search, and failure to arraign -- are protected by qualified
immunity, as discussed further below.
6. Qualified Immunity
The State argues that to the extent that any of the State
defendants are not entitled to absolute immunity, they are
entitled to qualified immunity. As to the claims for which
plaintiff has set forth insufficient allegations of constitutional
violations, qualified immunity is an additional basis for
dismissing plaintiff's complaint against Snyder and the
investigators on the Attorney General's staff. However, as
to plaintiff's constitutionally sufficient claims -- false arrest,
illegal search, and failure to arraign -- the Court concludes that
the State defendants are not entitled to qualified immunity.
Government officials are protected by qualified immunity
from suits arising from the performance of their discretionary
functions when that performance “does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Cartier v. Lussier, 955
F.2d 841, 843 (2d Cir. 1992)(quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396
(1982)). Qualified immunity only applies in suits against
officials in their personal capacity. See generally Kentucky
v. Graham, 473 U.S. 159, 165-68, 105 S.Ct. 3099, 3104-07,
87 L.Ed.2d 114 (1985). Because qualified immunity is
intended to shield public officials from the burdens and
expense of litigation, “[u]nless 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, 2815, 86 L.Ed.2d 411 (1985).
In assessing whether Snyder, Neuberger, Mulhall, Croft, Hill,
Kilgallon, and Mays are entitled to qualified immunity on
plaintiff's claim of false arrest, it is first necessary to discern
whether the right to be free from false arrest is “clearly
established.” Jeffries v. Harleston, 21 F.3d 1238, 1248 (2d Cir.
1994). To determine if plaintiff's claim implicates a clearly
established right, a court must consider whether (1) the right
was defined with “reasonable specificity”; (2) the relevant
decisional law supports the existence of the right; and (3)
under pre-existing law, a reasonable defendant official would
have understood that his actions were unlawful. Benitez v.
Wolff, 985 F.2d 662, 666 (2d Cir. 1993). Plaintiff's allegations
clearly concern a right that is defined with a clarity such that
a reasonable defendant would understand from existing law
that his or her actions were unlawful. See Soares v. State of
Connecticut, 8 F.3d 917, 920 (2d Cir. 1993)(recognizing the
clearly established right not to be arrested without probable
cause).
*12 Snyder and the investigators, however, might still be
accorded qualified immunity if “either (a) it was objectively
reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met.” Golino
v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991).
It is unclear from the undeveloped record before the Court
whether it was objectively reasonable for the defendants to
believe that they had probable cause to arrest plaintiff. This
factual uncertainty compels denial of defendants' qualified
immunity defense. See Day v. Morgenthau, 909 F.2d 75, 78
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(2d Cir. 1990) (holding that the qualified immunity issue
could not be resolved on the face of the complaint, as the
complaint did not identify what facts were known to the
defendants at the time of the arrest and search); Holmes v.
Artuz, 95 Civ. 2309, 1995 WL 634995, at *2 (S.D.N.Y. Oct.
27, 1995)(denying qualified immunity defense on a Rule
12(b)(6) motion due to sparse factual record before the court).
Plaintiff's allegations of an illegal search and failure to arraign
concern Neuberger, Mulhall, Croft, Hill, Kilgallon, and Mays.
Both of these claims also implicate “clearly established
rights.” See United States v. Robinson, 414 U.S. 218, 235,
94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973)(affirming the right
not to be searched incident to arrest unless the arrest is
lawful); County of Riverside v. McLaughlin, 500 U.S. 44, 61,
111 S.Ct. 1661, 1672, 114 L.Ed.2d 49 (1991)(recognizing
that one of the most important Fourth Amendment rights
concerning “unreasonable seizures” is the right of a suspect
arrested without a warrant to be brought before a magistrate
as soon as reasonably possible). The Court believes that
the law is sufficiently clear that, assuming the truth of the
plaintiff's allegations, defendants should have known that
their conduct violated the clearly established constitutional
rights of plaintiff. With regard to the illegal search, it is again
unclear whether defendants could have reasonably believed
that their arrest of plaintiff was lawful and that therefore their
search was lawful. Accordingly, these defendants are not now
entitled to qualified immunity for their alleged illegal search
of plaintiff or their alleged failure to arraign plaintiff, but they
may be after the record is more fully developed.
As to the remainder of plaintiff's allegations, plaintiff has
failed to set forth facts sufficient to allege any constitutional
violations, as discussed further above. Thus defendants were
“objectively reasonable” in their belief that they were not
violating any clearly established law. Defendants Snyder,
Neuberger, Mulhall, Croft, Hill, Kilgallon, and Mays are
therefore entitled to qualified immunity for all claims except
those concerning the false arrest, illegal search, and failure to
arraign. 9
C. Section 1985(3) and 1986 Claims
In the introduction to his complaint, plaintiff alleges that
defendants conspired to deprive him of his constitutional
rights in violation of 42 U.S.C. § 1985 (“Section 1985”). The
State defendants quite correctly assumed in their supporting
memorandum that plaintiff brings this claim under 42 U.S.C.
§ 1985(3), as none of the other sections appears applicable.
Plaintiff also submits a claim under 42 U.S.C. § 1986
(“Section 1986”) against the DOC, New York City, and New
York State, alleging that these defendants failed to prevent the
conspiracy to violate his constitutional rights. For the reasons
discussed below, plaintiff's claims under Sections 1985(3) and
1986 are dismissed.
*13 Section 1985(3) prohibits conspiracies undertaken “for
the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws,
or of equal privileges or immunities under the laws.” Jews for
Jesus v. Jewish Comm. Rel. Council of N.Y., 968 F.2d 286,
290 (2d Cir. 1992). The Second Circuit has recognized an
action under Section 1985(3) where a plaintiff is “injured by a
private conspiracy to interfere with his [or her] constitutional
rights, so long as there is 'some racial, or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators' action.”' Id. at 290-91 (citing Colombrito v.
Kelly, 764 F.2d 122, 130 (2d Cir. 1985)(quoting Griffin v.
Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1797-98,
29 L.Ed.2d 338 (1971))). The Supreme Court since Griffin
has not required that the discriminatory animus be racial in
character. Levy v. City of New York, 726 F.Supp. 1446, 1453
(S.D.N.Y. 1989). However, the alleged conspiracy must be
“directed at a class or group and must involve a showing of
discriminatory animus.” Id. at 1454.
The Second Circuit has “repeatedly held that complaints
containing only 'conclusory,' 'vague,' or 'general allegations'
of a conspiracy to deprive a person of constitutional rights
will be dismissed.” Ostrer v. Aronwald, 567 F.2d 551, 553 (2d
Cir. 1977)(per curiam)(citing Black v. United States, 534 F.2d
524 (2d Cir. 1976)). See also Leon v. Murphy, 988 F.2d 303,
311 (2d Cir. 1993). Even a pro se plaintiff must allege some
factual basis to substantiate his conclusion that defendants
conspired together to deprive him of his constitutionally
protected interests. McGaney v. Scully, 664 F.Supp. 151, 152
(S.D.N.Y. 1987). A complaint brought under a civil rights
statute will thus be dismissed unless it contains “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. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
Plaintiff's claim that defendants conspired to deprive him
of his constitutional rights fails for two reasons. First,
plaintiff fails to set forth any specific facts concerning the
alleged conspiracy. Plaintiff's only allegations concerning the
conspiracy claim consist of vague, conclusory statements
such as the following: “Defendant Hill and the other state
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officer were working in 'concert'[on July 12, 1994] ...
by making no attempts to control the officer or help
the plaintiff” (Compl., ¶ 35); the alleged July 12, 1994
“abduction had been ordered by Defendant Snyder in concert
with Defendant DOC” (Compl., ¶ 42); and “[a]ll of the
Defendants ... acted wantonly, recklessly, willfully and
maliciously, and 'in concert' with additional state and city
officers showing a deliberate indifference towards Plaintiff
and Plaintiff's rights, protected and guaranteed by the
Constitution ....” (Compl., ¶ 51).
*14 Second, plaintiff's complaint and affidavit do not
indicate that plaintiff is a member of an identifiable group
targeted for discrimination. Plaintiff does not claim any
membership or affiliation in relation to his claims which
would allow the Court to find that the alleged conspiracy is
directed at any class or group. Plaintiff thus fails to allege
any type of “class-based animus” as required by Griffin.
Consequently, plaintiff's claim of conspiracy under Section
1985(3) must be dismissed.
Plaintiff's claim under Section 1986 must also be dismissed.
The Second Circuit has held that “[a] claim under section
1986 ... lies only if there is a viable conspiracy claim under
section 1985.” Gagliardi v. Village of Pawling, 18 F.3d 188,
194 (2d Cir. 1994). Because plaintiff's claim under Section
1985(3) is insufficient, his claim under Section 1986 is also
dismissed.
D. Pendent State Contract Claim
In his complaint, plaintiff asserts a claim arising under New
York State contract law. Plaintiff maintains that the DOC,
New York City, and New York State were “in violation of
their authorized contracts on the mornings of August 5, 1993,
April 22, 1994, and July 12, 1994 when defendant officers
and officials, either directly or indirectly arrested, search [sic],
seized property, and incarcerated Plaintiff without a lawful
warrant or a victim's complaint.” Compl., ¶ 65.
Because plaintiff fails to state a claim upon which relief
may be granted, the Court dismisses plaintiff's state contract
claim. The allegations in plaintiff's complaint are vague
and conclusory. Plaintiff fails to identify what contracts
were breached and how defendants breached such contracts.
Plaintiff's allegations are thus not sufficient to sustain a breach
of contract claim against defendants and must be dismissed.
E. Plaintiff's Purported Summary Judgment Motion
The Court notes that plaintiff, in his response to defendants'
motions to dismiss, purports to have moved for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. However, plaintiff has failed to annex to the notice
of motion a separate, short, and concise statement of the
material facts as to which the moving party contends there is
no genuine issue to be tried, as required by Local Rule 3(g).
Because plaintiff has not complied with Local Rule 3(g) and
because he is plainly not entitled to the relief he seeks at this
early stage of the case, prior to discovery, plaintiff's purported
motion for summary judgment is denied in all respects.
CONCLUSION
For the reasons set forth above, all claims against New York
State, former State Attorney General Koppell, New York City,
the DOC, and City defendants Schembri and Fernandez are
dismissed. With regard to the remaining defendants, their
motions to dismiss for failure to state a claim are denied
as to plaintiff's claims of false arrest, illegal search, and
failure to arraign. As to the remainder of plaintiff's claims of
various other constitutional violations, defendants' motions to
dismiss are granted. Plaintiff's state law contract claim is also
dismissed.
*15 The plaintiff and counsel for the State defendants are
directed to attend a conference with the Court on August
19, 1996 at 4:30 p.m. in Courtroom 14C, United States
Courthouse, 500 Pearl Street, New York, New York for the
purpose of scheduling further proceedings in this case.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1996 WL 442797
Footnotes
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1 The facts alleged in plaintiff's complaint are assumed to be true for the purposes of the motions before this
Court. Because plaintiff is pro se, the Court will also treat the allegations of plaintiff's affidavit dated October
11, 1994, and filed the same day as the complaint, as true. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct.
594, 595-96, 30 L.Ed.2d 652 (1972)(per curiam)(courts should construe pro se complaints liberally and apply
a more flexible standard in determining the sufficiency of a pro se complaint).
2 Plaintiff contends in his “Answer to Motion to Dismiss by Defendants ... and Cross Claim for Summary
Judgment in Favor of the Plaintiff Murphy” (“Plaintiff's Answer”) that the Eleventh Amendment is not a barrier
to suits against state officials even when a judgment will have to be satisfied out of the state treasury.
Plaintiff's Answer, ¶ 22. However, the case plaintiff cites in support of this contention, Fitzpatrick v. Bitzer,
is distinguishable from the present case. 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Fitzpatrick
involved an award of back pay and attorneys' fees in a Title VII action where express congressional authority
exists for such awards against a state. Fitzpatrick, 427 U.S. at 457, 96 S.Ct. at 2672. In the present case,
the State has not offered its consent and is therefore immune from plaintiff's suit. See Edelman, 415 U.S.
at 662-63, 94 S.Ct. at 1355.
Plaintiff also argues that the Eleventh Amendment is not a bar where there is no likelihood of the State being
liable in damages for the actions of the defendants. Plaintiff's Answer, ¶ 22. However, as discussed above,
the Supreme Court has held that where a suit is brought against a state official in his official capacity, the
suit is barred by the Eleventh Amendment because the source for potential damages would be the state
treasury. See Ford Motor Co., 323 U.S. at 464, 65 S.Ct. at 350.
3 Plaintiff's claim for false arrest could be deficient if he was convicted or pled guilty to some offense, even one
of a lesser charge. See Cameron v. Fogarty, 806 F.2d 380, 388 (2d Cir. 1986); Roundtree v. City of New
York, 778 F.Supp. 614, 619 (E.D.N.Y. 1991). However, none of the parties has raised this issue which, in
any event, is more appropriate for summary judgment.
4 Plaintiff also alleges in his Answer that he had to wait three to six hours each time he was summoned to
appear at the NYCDC. (Plaintiff's Answer, ¶ 1). This claim does not implicate a constitutional violation.
5 Plaintiff asserts various other allegations in his complaint and affidavit including: plaintiff did not use the men's
room for over 24 hours during his July 12, 1994 arrest (Murphy Aff., ¶ 53); recording devices were in the
room where plaintiff was interrogated on April 22, 1994 (Murphy Aff., ¶ 30); defendants never told plaintiff he
was under arrest (Compl., ¶ 31); defendants required that plaintiff's fingerprints be taken before his probable
cause hearing on August 5, 1993 (Murphy Aff., ¶ 19); defendants forced plaintiff to sleep under bright, hot
lights (Compl., ¶ 44); and plaintiff was forced to undergo psychological examinations during his July 12, 1994
detention (Compl., ¶ 40).
None of these allegations rises to the level of a constitutional violation. Although plaintiff did not use the
men's room for over 24 hours, he does not claim that the defendants refused to allow him to do so. Even
if such had been the case, not permitting an arrestee to go to the bathroom “cannot be characterized as
significant in a constitutional sense.” Stewart v. City of Wichita, Kan., 827 F.Supp. 1537, 1539 (D.Kan.
1993). Similarly, plaintiff does not allege that defendants used the recording devices, only that the devices
may have been present in the room. Even if the devices were used, it is unclear what constitutional rights
would be implicated.
Although defendants allegedly never told plaintiff he was under arrest, this alleged violation of New
York Criminal Procedure Law section 140.15 does not suffice as a constitutional violation. See Kladis
v. Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987)(concluding that neither the Sixth Amendment nor the
Fourth Amendment provided a suspect with the right to be informed of the reason for his arrest).
Moreover, New York Criminal Procedure Law section 140.20 requires that all “recording, fingerprinting and
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other preliminary police duties” be completed before bringing an arrestee before a local criminal court.
Defendants were thus complying with state law in taking plaintiff's fingerprints prior to his hearing. The use
of bright lights, although possibly discomforting, also does not amount to a constitutional violation. See
Fillmore v. Ordonez, 829 F.Supp. 1544, 1568 (D.Kan. 1993)(court held that restraints that are reasonably
related to the institution's interest in maintaining jail security, such as an electronic surveillance system
with around-the-clock beeping and soft lighting or a hard, uncomfortable mattress, are not a violation of
constitutional rights).
Plaintiff's claim that he was forced to undergo psychological examinations does not implicate the named
defendants. Plaintiff does not allege that defendants placed him in a facility for psychological treatment and
evaluation, under which circumstances a determination of probable cause would have been necessary.
See Rex v. Teeples, 753 F.2d 840, 842 (10th Cir. 1985). If plaintiff was forced to undergo psychological
evaluations while detained in the Albany Correctional Facility, and proper procedures were not followed,
such actions do not involve the named defendants. Because plaintiff has failed to allege facts supporting
defendants' personal involvement in the psychological evaluations as necessary in a claim under Section
1983, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), plaintiff's claim stemming from the
psychological examinations must be dismissed.
6 In his Answer, plaintiff cites various cases discussing when municipal liability may lie under Section 1983. All
of the cases, however, deal with situations in which the court found a constitutional violation. Because this
Court has determined that plaintiff has failed to set forth facts alleging personal involvement on the part of
Fernandez in the deprivation of plaintiff's constitutional rights, these cases are inapposite.
7 The Court also notes that plaintiff has failed to set forth facts demonstrating that a municipal policy or custom
caused the alleged constitutional deprivations. Plaintiff alleges that he was arrested and searched without
probable cause and never brought before a neutral magistrate. Plaintiff does not allege any other instance of
misconduct or that policy-making City officials were directly involved in the alleged constitutional violations.
Vague or conclusory allegations unsupported by specific factual references do not state a claim under Section
1983. Walden v. Wishengard, 745 F.2d 149, 153 (2d Cir. 1984)(neither pleading nor affidavit demonstrated
that allegedly unconstitutional arrest was the product of official government policy). Thus plaintiff's conclusory
allegation that the City “failed and neglected to properly train and supervise its employees” is also insufficient
to state a claim. Compl., ¶ 60.
8 Plaintiff contends in his Answer that Snyder should be denied absolute immunity. Although these arguments
are moot, the Court will briefly address them. First, plaintiff seems to argue that Snyder is not entitled to
absolute immunity because she acted maliciously or corruptly. See Plaintiff's Answer at 12. However, in Imbler
the Court indicates that absolute prosecutorial immunity is not defeated by a showing that the prosecutor
acted wrongfully or even maliciously. 424 U.S. at 427 and n.27, 96 S.Ct. at 993 and n.27. Second, plaintiff
argues that prosecutors' actions as “private citizens,” which are outside the scope of their authority, are
not entitled to immunity. Plaintiff's Answer, ¶ 32. Because plaintiff's claims against not only Snyder but all
defendants involve their official duties, this argument is also without merit.
9 In his Answer, plaintiff contends that defendants are not entitled to qualified immunity as they were not acting
in good faith. Plaintiff's Answer, ¶ 63. This contention does not alter the conclusion that defendants are
accorded qualified immunity for those claims that fail to allege a constitutional violation of which any of the
State defendants should have been aware. As to the sufficiently pleaded constitutional allegations, plaintiff's
contentions are moot.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Muzumala v. Unknown Federal Agents, Not Reported in Fed. Supp. (2023)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 5530308
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Joshua MUZUMALA, Plaintiff,
v.
UNKNOWN FEDERAL AGENTS, et al., Defendants.
22-CV-7851 (LTS)
|
Signed August 28, 2023
Attorneys and Law Firms
Joshua Muzumala, Bronx, NY, Pro Se.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff, who is appearing pro se, brings this action
asserting claims pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
and 42 U.S.C. §§ 1981, 1983, 1985, and 1986. He alleges that
federal agents and others conspired to violate his rights in the
States of New York and Louisiana. By order dated January 23,
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 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 brings this action alleging a wide-ranging campaign
of harassment and surveillance by private individuals and
government actors to deprive him of his rights and have him
deported. 1 Named as defendants are: (1) “[u]nknown federal
agents” (id. ¶ 26); (2) John Doe 1, “a federal agent most
likely from immigration enforcement” (ECF 2, ¶ 25); (3) John
Doe 2 and Jane Doe 1 (collectively “Doe couple”), a couple
who were Plaintiff's neighbors in New Paltz, New York; (4)
John Doe 3, a resident of Brooklyn, New York, “engaged”
by John Doe 1 and the unknown federal agents (id. ¶28); (5)
the University of New Orleans; (6) John Doe 4, a sergeant
employed by the University of New Orleans Campus Police;
(7) John Doe 5, a police officer employed by the University of
New Orleans Campus Police; (8) Neal Maroney, a professor at
the University of New Orleans; (9) John Doe 6, an employee
of the Bowery Residents’ Committee's (“BRC”) Boulevard
Men's Residence, 2 a homeless shelter in Manhattan; and (10)
Susan Brady, a doctor employed by BRC. The following is
a summary of the information in the complaint, which is 96
pages long and contains 390 numbered paragraphs. 3
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A. Defendants targeted harassment of Plaintiff at the
New Paltz Garden Apartments in New Paltz, New York
*2 Plaintiff, who identifies himself as being “a male of
African descent,” moved to the United States in 2006, and
since then has obtained multiple degrees. (ECF 2, ¶ 8.) 4
In September 2019, Plaintiff moved to New Paltz, New
York, to enroll at the State University of New York at New
Paltz (“SUNY New Paltz”). Plaintiff lived in an apartment
complex close to campus called New Paltz Gardens, where
he may have been the only Black resident. He “experienced
xenophobia and racial animus” from a couple, John Doe 2 and
Jane Doe 1, who lived in the same building. (Id. ¶ 10.) The
Doe couple expressed their “angst” that Plaintiff had moved
into the building by committing “inimical” acts towards him.
This included saying that Plaintiff was “weird and sad,”
playing audio of monkey sounds loudly while “talking about
Black people in a disparaging sense,” and screaming, “[W]hy
are you here?” and “Get out of here.” (Id. ¶51.) Because of
the “ongoing bias incidents” from the couple, Plaintiff asked
to be released from his lease, but his request was denied, and
instead he was allowed to move to another apartment in a
different building within the complex. (Id.)
However, the Doe couple's harassment continued. They
“influenced residents around Plaintiff's new apartment
building and organized proxies to perpetrate the harassment
of Plaintiff.” (Id. ¶ 11.) For example, on his first day in the
new apartment, a resident above him screamed, “[S]omebody
get the monkey out of here.” (Id. ¶ 52.) Plaintiff also heard
Jane Doe 1 telling residents in the new building, “[W]e had
to treat him like shit to get him out.” (Id.) Plaintiff believes
that the Doe couple “had for some reason become fixated
with making [him] uncomfortable in his apartment and in the
community.” (Id.)
In April 2020, at about the time that Plaintiff's application
for permanent residency was being processed by the United
States Citizenship and Immigration Services, he noticed a
change in the tenor of the harassment, as it “had started
including intimations that [he] would be deported.” (Id. ¶
12.) Plaintiff believes that the Doe couple had involved
“immigration enforcement,” consisting of John Doe 1
and unknown federal agents, in the harassment “for the
purposes of interfering with Plaintiff's petition for permanent
residence” and “to try to get [him] removed from the
country” (Id. ¶¶ 12, 53.) For the next seven months,
the harassment escalated, forcing Plaintiff to move to
Poughkeepsie, New York, in September 2020, hoping that it
would stop.
B. Defendants’ harassment of Plaintiff continued in
Poughkeepsie, New York
The Doe couple, John Doe 1, the unknown federal agents,
and “their proxies tracked and followed” Plaintiff to
Poughkeepsie, where they obtained access “under federal
authority” to apartments adjacent to Plaintiff's apartment and
“would surveil Plaintiff, including, but not limited to casting
aspersions about [him], and alleging that [he] was a criminal
and was getting deported.” (Id. ¶¶ 16, 57.) In November 2020,
Plaintiff received a positive Covid-19 test and informed his
landlord of the test so that his neighbors could be informed.
A few days later, Jane Doe 1 with unknown individuals
drove into a parking lot adjacent to Plaintiff's apartment and
screamed, “[D]ie already,” after mentioning details about
Plaintiff's Covid test. (Id. ¶ 62.)
C. Plaintiff moved to Brooklyn, New York, where
Defendants’ harassment continued
In December 2020, Plaintiff decided to move to Brooklyn,
New York, but all the defendants followed him there
and continued the harassment, “[a]t one point, using [a]
loudspeaker from an unmarked police car saying, ‘[Y]ou
cannot hide from us.’ ” (Id. ¶ 18.) The defendants used local
residents and their “proxies,” including John Doe 3, who
would verbally harass Plaintiff, “echoing false allegations that
Plaintiff was a criminal and was getting deported.” (Id. ¶ 69.)
On May 21, 2021, Plaintiff's petition for permanent residency
was approved. When the defendants found out about the
approval, Plaintiff heard Jane Doe 1 saying, “[W]e will keep
doing this until we run him out of the country.” (Id. ¶ 77.) The
defendants “had made pursuing Plaintiff a personal matter
and had become excessively obsessed with attempting to have
Plaintiff deported from the United States.” (Id. ¶ 79).
D. Defendants tracked and followed Plaintiff to New
Orleans, Louisiana
*3 In June 2021, Plaintiff decided to move to New Orleans,
Louisiana, to attend the University of New Orleans, where
he had been accepted into a Ph.D. program. Defendants
again tracked him down and “repeatedly engaged in a
course of conduct that would severely demonize, and defame
Plaintiff.” (Id. ¶ 21.) Defendants escalated their surveillance
and harassment of Plaintiff, by (1) using “through-the-wall x-
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ray surveillance equipment,” which caused radiation (id. ¶¶
22, 105); (2) using proxies such as John Doe 4, who Plaintiff
heard saying at a desk in the university library, “ ‘[N]obody
wants him. He's got to go,’ and ‘[H]e is a weird guy,’ ” using
language similar to language that had been used by John Doe
1, the unknown federal agents, the Doe couple, and their other
proxies (id. ¶107); (3) “weaponizing surveillance equipment
to furtively cause Plaintiff extreme pain and discomfort” (id.
¶ 111); and (4) subjecting Plaintiff to “ionizing radiation
several times a day” (id. ¶ 120). Plaintiff sought assistance
from the campus police, but it soon “appeared that university
police were doing the bidding of Defendants John Doe 1 and
[u]nknown federal agents,” including following him around
because they “viewed [him] as a safety concern.” (Id. ¶¶ 102,
104.)
On September 28, 2021, Defendant Neal Maroney, a
professor, responded to Plaintiff's attempt to clarify a question
in class with “discriminatory and abusive language” by
screaming, “[L]et's get rid of this shit.” (Id. ¶ 124.) This
language was consistent with that used by the defendants,
and left Plaintiff “feeling out of place, afraid, embarrassed
and unwelcome in his class.” (Id.) Several days later,
Maroney, several of Plaintiff's classmates, John Doe 1, and
other unidentified individuals gathered in the hallway of a
lecture hall at the university. Plaintiff believes they were
having a conversation about him, which included using a
“viewing device” to look at his brain. (Id. ¶ 128.) Plaintiff
began “experiencing a severe headache, including pain and
a burning sensation on the surface of his head and neck,
and feeling extreme weakness in his arms and legs.” (Id.)
Defendants continued to target Plaintiff with “harassment
and violence,” leaving him “extremely traumatized.” (Id. ¶¶
131-141.)
E. Plaintiff returned to New York and Defendants
followed
Plaintiff feared for his safety, and on November 10, 2021,
he withdrew from the University of New Orleans and
returned to New York. Plaintiff sought temporary housing
from the City of New York, and was housed in several
shelters. However, Defendants had followed him and, in the
shelters, continued their harassment, which included (1) using
surveillance equipment and ionizing radiation to cause him
pain; (2) housing him with roommates who threatened him
and exposed him to second hand smoke and illicit substances;
(3) conspiring with social service workers to get him to
transfer to a mental health and substance abuse facility; (4)
tracking and following him to Covid-19 isolation hotels; and
(5) “advanc[ing] a false narrative that Plaintiff had a mental
illness” (id. ¶ 189).
On December 29, 2021, Plaintiff attended a psych evaluation
with Defendant Susan Brady, who asked why he was
in temporary housing. He informed her of the actions
taken against him by the Doe couple, John Doe 1,
the unnamed federal agents, and their proxies, “tracking,
following, surveilling, and harassing” him, which prevented
or made it difficult for him to pursue his “education and
employment goals.” (Id. ¶ 191.) Instead of “identify[ing]
the illegal immigration pursuit as the barrier in [his] current
circumstances, and begin[ning] the process of addressing it,”
Defendant Brady diagnosed Plaintiff with schizophrenia. (Id.
¶¶ 192, 194.) Plaintiff, who had no history of mental illness,
was “shocked, surprised and dismayed by the diagnosis,” and
decided that it was likely that Defendant Brady had been
“influenced by John Doe 1 and the [u]nknown federal agents”
in an effort to discredit him and “manufacture aggravating
factors” to prevent him from getting future benefits. (Id. ¶
194, 198.) After the diagnosis, Plaintiff was transferred to
several mental health and substance abuse facilities, where he
continued to face difficulties.
*4 Plaintiff brings this action seeking injunctive relief and
money damages.
DISCUSSION
Under the IFP statute, a court must dismiss an action if it
determines that the action is frivolous or malicious. 28 U.S.C.
§ 1915(e)(2)(B)(i). “[A] finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible.” Denton v. Hernandez,
504 U.S. 25, 33 (1992). A complaint is “ ‘factually frivolous’
if the sufficiently well-pleaded facts are ‘clearly baseless’
– that is, if they are ‘fanciful,’ ‘fantastic,’ or ‘delusional.’
” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011)
(quoting Denton, 504 U.S. at 32-33) (finding as frivolous
and baseless allegations that set forth a fantastical alternative
history of the September 11, 2001 terrorist attacks); see also
Neitzke v. Williams, 490 U.S. 319, 324-25 (1989) (A claim
is frivolous when it “lacks an arguable basis either in law
or in fact.”); Livingston, 141 F.3d at 437(“[A]n action is
‘frivolous’ when either: (1) the factual contentions are clearly
baseless ...; or (2) the claim is based on an indisputably
meritless legal theory.” (internal quotation marks and citation
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Muzumala v. Unknown Federal Agents, Not Reported in Fed. Supp. (2023)
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omitted)). Moreover, a court has “no obligation to entertain
pure speculation and conjecture.” Gallop, 642 F.3d at 368.
Plaintiff's complaint is premised upon his belief that, the Doe
couple, multiple federal agents, and their proxies mounted a
campaign of harassment against him in an effort to have him
deported, and then tracked and monitored his activities with
x-ray equipment from New Paltz to New Orleans and back to
New York. The defendant's actions included subjecting him to
“ionizing radiation,” “weaponizing surveillance equipment”
against him, looking at his brain through a “viewing device,”
and causing him other harms. (ECF 2 ¶¶ 111, 120, 128.)
However, a “[p]laintiff's beliefs – however strongly he may
hold them – are not facts.” Morren v. New York Univ., No.
20-CV-10802, 2022 WL 1666918, at *18 (S.D.N.Y. Apr.
29, 2022) (citation omitted), report and recommendation
adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022).
Plaintiff provides no factual basis for his assertions that he
was victim of a broad conspiracy perpetrated by the Doe
couple, federal immigration agents, and their proxies. See
Lefkowitz v. John Wiley & Sons, Inc., No. 13-CV-6414, 2014
WL 2619815, at *10 (S.D.N.Y. June 2, 2014) (complaint
must set forth facts showing basis for information and belief);
Johnson v. Univ. of Rochester Med. Ctr., 686 F. Supp. 2d 259,
266 (W.D.N.Y. 2010) (even where necessary evidence is in
“exclusive control of the defendant, ... plaintiff must still set
forth the factual basis for that belief”).
The Court finds that Plaintiff does not provide any plausible
factual support for his claims and that they rise to the
level of the irrational. See Livingston, 141 F.3d at 437.
Plaintiff has provided the court with a narrative full of
details of what he believes – that he is a victim of a broad
conspiracy perpetrated by Defendants with the initial goal
of his deportation, and later to deprive him of his rights.
Despite all of the details provided, Plaintiff has pleaded
no factual predicate in support of his assertions. Plaintiff's
allegations amount to conclusory claims and suspicions that
are not plausible and must be dismissed as frivolous. See
Kraft v. City of New York, 823 F. App'x 62, 64 (2d Cir.
2020) (holding that “the district court did not err in sua
sponte dismissing the complaint as frivolous,” based on the
plaintiff's allegations that he had “been the subject of 24-hour,
multi-jurisdictional surveillance by federal ‘fusion centers’
and the New York State Intelligence Center, which put a
‘digital marker’ on him in order to collect his personal data
and harass him.”); Khalil v. United States, No. 17-CV-2652,
2018 WL 443343, at *4 (E.D.N.Y. Jan. 12, 2018) (dismissing
complaint where “[p]laintiff allege[d] a broad conspiracy
involving surveillance of and interference with his life by the
United States and various government actors” because his
allegations were “irrational and wholly incredible”).
*5 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). Plaintiff's complaint
does not suggest that he is in possession of facts that would
cure the identified deficiencies. See Gallop, 642 F.3d at 369
(district court did not err in dismissing claim with prejudice
in absence of any indication plaintiff could or would provide
additional allegations leading to different result); Fischman
v. Mitsubishi Chem. Holdings Am., Inc., No. 18-CV-8188,
2019 WL 3034866, at *7 (S.D.N.Y. July 11, 2019) (declining
to grant leave to amend as to certain claims in the absence
of any suggestion that additional facts could remedy defects
in the plaintiff's pleading). Because the defects in Plaintiff's
complaint cannot be cured with an amendment, the Court
declines to grant Plaintiff leave to amend and dismisses the
action as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
CONCLUSION
Plaintiff's complaint is dismissed as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). All other pending matters in this case 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 5530308
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Muzumala v. Unknown Federal Agents, Not Reported in Fed. Supp. (2023)
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Footnotes
1 This action is the second of three complaints Plaintiff filed in this court arising from the same events. In the first
action, Muzumala v. Mayorkas, No. 22-CV-3789 (JGK) (S.D.N.Y. filed May 9, 2022) (“Muzumala I”), Plaintiff
asserted claims under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., alleging that the
United States Immigration and Customs Enforcement (“ICE”) and the Federal Bureau of Investigation (“FBI”)
failed to adequately respond to his document requests. He also brought statutory and constitutional claims
against officials stemming from his belief that private individuals and government agents are trying to have
him deported. On June 22, 2022, Judge John G. Koeltl dismissed Plaintiff's claims against the officials and
his assertions concerning the government actors’ efforts to deport him. See Muzumala I, 2022 WL 2916610
(S.D.N.Y. July 22, 2022). Judge Koeltl allowed the FOIA claims to proceed. A motion to dismiss filed by ICE
and the FBI is pending in that case.
Plaintiff's third case, filed after submission of this action, is Muzumala v. The City of New York, No. 22-
CV-8423 (LTS) (S.D.N.Y. filed Oct. 3, 2022) (“Muzumala III”). In that action, he asserted constitutional claims
under 42 U.S.C. § 1983, arising from his shelter experiences in New York City. On February 21, 2023, the
Court dismissed most of the claims, but granted Plaintiff leave to amend. See Muzumala III, ECF 1:22-
CV-8423, 12. Plaintiff subsequently filed a second amended complaint, which remains pending.
There is some duplication of allegations among Plaintiff's three actions. In all three actions, he describes
events occurring in New Paltz, Poughkeepsie, Brooklyn, and New Orleans, involving federal agents and their
proxies attempting to have him deported. In both this action and Muzumala III, Plaintiff discusses some of
the same shelter experiences and names Dr. Susan Brady as a defendant. The Court will not address in this
order matters that have been addressed in Muzumala I and Muzumala III.
2 BRC is a nonprofit organization that, among other things, manages shelter facilities in partnership with the
New York City Department of Homeless Services. See https://www.brc.org/ (last visited Aug. 16, 2023);
https://www.nyc.gov/site/dhs/about/bowery-residents-committee.page (last visited Aug. 16, 2023).
3 On February 2, 2023, the Court received a motion from Plaintiff requesting leave to submit an amended
complaint. (ECF 10.) On April 10, 2023, the Court denied Plaintiff's motion as unnecessary because he could
amend his complaint once as of right within a certain timeline under Rule 15(a) of the Federal Rules of Civil
Procedure. (ECF 11.) The Court directed Plaintiff, if he chooses, to submit his amended complaint within
45 days, and that, if he did not file an amended complaint within that time, the Court will treat the original
complaint as the operative pleading. (Id.) Plaintiff did not file an amended complaint.
4 The Court quotes the complaint verbatim. All spelling, grammar, and punctuation are as in the original unless
otherwise indicated.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 397 of 520

Nussbaum v. Spider, Inc., Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
On Reconsideration Nussbaum v. Spider, Inc., E.D.N.Y., October 30,
2009
2009 WL 2762785
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
E.D. New York.
Channan NUSSBAUM, Plaintiff,
v.
SPIDER, INC., and Paul White, Defendants.
Paul White, Plaintiff,
v.
Channan Nussbaum, Defendant.
Nos. 09–CV–2025 (JS)(ETB), 09–CV–2026 (SJF)(AKT).
|
Aug. 24, 2009.
Attorneys and Law Firms
Daniel Hirschel, Esq., Valley Stream, NY, for Plaintiff
Channan Nussbaum.
Paul White, Melville, NY, pro se.
MEMORANDUM & ORDER
SEYBERT, District Judge.
*1 Presently pending before the Court is the Complaint of
Channan Nussbaum (“Nussbaum” or “Plaintiff”), removed
from state court pursuant to 28 U.S.C. § 1446(a), and
the Complaint of pro se Plaintiff Paul White (“White” or
“Defendant”). Nussbaum's and White's Complaints involve
similar claims, and White's Complaint names Nussbaum as a
Defendant. In the interests of judicial economy, as set forth
in more detail below, the Court ORDERS that the Clerk of
Court consolidate these two cases under the earlier-filed case,
docket number 09–CV–2025.
BACKGROUND
On May 21, 2002, Nussbaum filed a Complaint in the
Supreme Court of the State of New York, County of
Suffolk, against Spider, Inc. (“Spider”) and White, alleging
various state law claims, including breach of contract.
(09–CV–2025, Exhibit A, E.D.N.Y. filed May 13, 2009.)
Nussbaum's Complaint maintains that Spider and White did
not compensate him for his work as a software developer in
accordance with the terms of their written agreement.
On May 13, 2009, White filed a Notice of Removal pursuant
to 28 U .S.C. § 1446(a), maintaining that removal is
appropriate because the action involves a federal question
arising under the United States Copyright Act, 17 U.S.C. §
101. (09–CV–2025, E.D.N.Y. filed May 13, 2009). On the
same day, White filed a Complaint as a Plaintiff, pro se, in
this Court against Nussbaum, alleging breach of contract and
unjust enrichment claims. (09–CV–2026). White contends
that Nussbaum breached the parties' written agreement by
refusing to repair a software program and by releasing the
software program to third parties.
DISCUSSION
Under Rule 42 of the Federal Rules of Civil Procedure, “[i]f
actions before the court involve a common question of law
or fact, the court may: (1) join for hearing or trial any or all
matters at issue in the actions; (2) consolidate the actions;
or (3) issue any other orders to avoid unnecessary cost or
delay.” Fed.R.Civ.P. 42(a). The trial court has broad discretion
to determine whether consolidation is appropriate. Johnson
v. Celotex Corp., 899 F.2d 1281, 1284–85 (2d Cir.1990).
Moreover, a district court can consolidate related cases sua
sponte. Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121,
130 (2d Cir.1999).
Consolidation is appropriate in order to serve the interests of
judicial economy. Jacobs v. Castillo, 09–CV–953, 2009 WL
1203942, at *373 (S.D.N.Y. Apr. 23, 2009) (citing Johnson
v. Celotex Corp., 899 F.2d 1281, 1284–85 (2d Cir.1990)).
Specifically, consolidation of cases with common questions
of law or fact is favored to avoid unnecessary costs or
delay, Johnson, 899 F.2d at 1284, and to expedite trial
and eliminate unnecessary repetition and confusion. Devlin,
175 F.3d at 130 (internal citations omitted). The paramount
question, however, is whether savings of expense and gains
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Nussbaum v. Spider, Inc., Not Reported in F.Supp.2d (2009)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
of efficiency can be accomplished without sacrifice of justice.
Johnson, 899 F.2d at 1285 (“Considerations of convenience
and economy must yield to a paramount concern for a fair and
impartial trial.”).
*2 The Second Circuit has long adhered to the first-filed
doctrine in deciding which case to dismiss where there
are competing litigations. Kellen Co. v. Calphalon Corp.,
54 F.Supp.2d 218, 221 (S.D.N.Y.1999). Where there are
several competing lawsuits, the first suit should have priority,
absent the showing of balance of convenience or special
circumstances giving priority to the second. Id. (internal
quotation marks, alterations, and citations omitted); accord
Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991); First City Nat'l
Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir.1989).
The first-filed rule seeks to conserve judicial resources and
avoid duplicative litigation. See Adam, 950 F.2d at 92; First
City Nat'l Bank & Trust Co., 878 F.2d at 80; Kellen, 54
F.Supp.2d at 221.
Here, the two Complaints concern common parties, as well
as common questions of law and fact. Both Complaints
allege breach of contract claims relating to the written
agreement between Nussbaum, White, and Spider. Thus, the
Court ORDERS the following: The Clerk of Court shall (1)
consolidate the two above captioned cases under the first
case filed, docket number 09–CV–2025, and (2) close the
case with docket number 09–CV–2026 and direct any further
filings in that case to 09–CV–2025. A copy of this Order will
be sent to all parties at the addresses listed with the Court.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 2762785
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 399 of 520

Ognibene v. Niagara County Sheriff's Dept., Not Reported in F.Supp.2d (2003)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2003 WL 24243989
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Salvatore OGNIBENE, Plaintiff,
v.
NIAGARA COUNTY SHERIFF'S DEPARTMENT,
Niagara County District Attorney's Office, Samuel
Novara, Esq., Town of Wheatfield Court, Niagara
County Court, Niagara County Supreme Court, New
York State Appellate Division, 4 TH Judicial Dept.,
and New York State Court of Appeals, Defendants.
No. 03–CV–0678E(SR).
|
Dec. 1, 2003.
Attorneys and Law Firms
Salvatore Ognibene, Niagara Falls, NY, pro se.
DECISION AND ORDER
ARCARA, J.
INTRODUCTION
*1 Plaintiff has filed this pro se action seeking relief under
42 U.S.C. § 1983 (Docket No. 1, 3) and has requested
permission to proceed in forma pauperis (Docket No.
2). Plaintiff claims that the defendants have violated his
constitutional rights in relation to an arrest that occurred on
July 10, 1997 for which plaintiff was given an Adjournment
in Contemplation of Dismissal (“ACD”) 1 on November 17,
1997 in the Town of Wheatfield (New York) Town Court.
(Complaint, ¶ 5). Apparently, plaintiff later filed some type
of motion or appeal in the Town Court of Wheatfield seeking
to dismiss the ACD. (Docket No. 3, Table of Contents). 2
This motion was denied and appeals ensued through the state
court system all the way to the New York Court of Appeals,
which denied plaintiff leave to appeal on or about September
17, 2003. (Complaint, ¶¶ 5–10; Table of Contents, ¶¶ 2–6).
For the reasons discussed below, plaintiff's request to proceed
as a poor person is granted and the complaint is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
Because plaintiff has met the statutory requirements of 28
U.S.C. § 1915(a), plaintiff is granted permission to proceed in
forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides
that the Court shall dismiss a case in which in forma pauperis
status has been granted if, at any time, the Court determines
that the action (i) is frivolous or malicious; (ii) fails to state
a claim upon which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.
In evaluating the complaint, the Court must accept as true all
factual allegations and must draw all inferences in plaintiff's
favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999).
Dismissal is not appropriate “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.” Conley v. Gibson,
355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “This
rule applies with particular force where the plaintiff alleges
civil rights violations or where the complaint is submitted pro
se.” Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998).
Based on its evaluation of the complaint, the Court finds that
plaintiff's claims must be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) because they fail to state a claim upon which
relief may be granted.
Plaintiff's Allegations
Plaintiff alleges that his constitutional rights were violated
and therefore brings this action pursuant to 42 U.S.C. § 1983.
In order to state a claim under § 1983, plaintiff must allege
(1) that the challenged conduct was attributable at least in part
to a person acting under color of state law, and (2) that such
conduct deprived plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States.
Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993).
Plaintiff names as defendants: (1) the Niagara County
Sheriff's Department (“Sheriff's Department”), the law
enforcement agency that responded to his daughter's “911”
telephone call, which occurred while plaintiff was admittedly
striking her in his home on July 10, 1997, and took plaintiff
into custody (Complaint, Statement of Claim, ¶¶ 1–3); (2)
the Niagara County District Attorney's Office (“DA's Office”)
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Ognibene v. Niagara County Sheriff's Dept., Not Reported in F.Supp.2d (2003)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
that, assumably, prosecuted plaintiff following this arrest;
(id., ¶¶ 4–5); (3) Samuel J. Novara, plaintiff's defense
counsel in the proceedings in Town Court (id., ¶ 6); (4)
the Town of Wheatfield Town Court (“Wheatfield Town
Court”), “Presiding” Town Justice Robert Cliffe, where
plaintiff was prosecuted and obtained an ACD on November
17, 1997 (id., ¶ 5); (5) the Niagara County Court (“County
Court”), “Presiding” Judge, Hon. Peter Broderick, the court
to which plaintiff appealed on or about April 14, 2000
(Complaint; Table of Contents, ¶ 3); (6) the New York
Supreme Court, Niagara County (“State Supreme Court”),
“Presiding” Justice, Hon. John Lane, the court to which
plaintiff appealed on or about February 16, 2001 and which
denied his request for relief on or about June 13, 2001
(Table of Contents, ¶ 3); (7) the New York State Supreme
Court, Appellate Division, Fourth Department (“Appellate
Division”), “Presiding” Justice Pine, and Justices Hayes,
Hurlburt, Kehoe and Burns, the court to which plaintiff further
appealed and which dismissed plaintiff's appeal on April 23,
2002 for failure to prosecute (Complaint, Statement of Claim,
¶ 8; Table of Contents, ¶ 6 A—B); and (8) the New York
Court of Appeals (“Court of Appeals”), “Presiding” Justice,
Hon. Judith Kaye, which denied plaintiff leave to appeal on
or about September 17, 2003. (Complaint, ¶ 10; Table of
Contents, ¶ 7).
*2 The plaintiff's complaint, liberally construed, appears to
allege a violation of plaintiff's civil rights based upon claims
of false arrest and false imprisonment on July 10–11, 1997
arising out of his arrest (Complaint, Statement of Claim, ¶¶
2–4), and the “faulty procedures” of the prosecutor and the
courts. The complaint also alleges that the prosecutor and
the courts named as defendants failed to insure that plaintiff
obtained his Miranda warnings and his “right” to give a
statement, and that they failed to insure that he obtained his
various Sixth Amendment rights, such as the right to a speedy
public trial, the right to an impartial jury, the right to notice
of the charges against him, the right to confront witnesses,
the right to compulsory process, and the right to counsel.
(Id., ¶¶ 4–10). The complaint also includes a claim of either
a violation of § 1983 or legal malpractice or both against
plaintiff's defense attorney. (Id., ¶ 6).
Claims against Sheriff's Department,
DA's Office and Wheatfield Town Court
Plaintiff's claims against the Sheriff's Department, the DA's
Office and the Wheatfield Town Court must be dismissed.
First, plaintiff's § 1983 claims against these three defendants
accrued at the earliest on July 10, 1997 when he was arrested,
and at the latest either on November 17, 1997, when the
charges against him were resolved by means of an ACD
(Complaint, Statement of Claim, ¶¶ 3–5; Table of Contents,
¶¶ 1–2), or on March 28, 2000, when a motion plaintiff made
in the Town Court was denied. (Table of Contents, ¶ 2). The
statute of limitations for an action filed under 42 U.S.C. §
1983 in a federal court sitting in New York is three years.
Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102
L.Ed.2d 594 (1989); Jewell v. County of Nassau, 917 F.2d
738, 740 (2d Cir.1990). Therefore, any and all claims against
these defendants are time barred.
Second, the claims against the Sheriff's Department, the
DA's Office, and the Wheatfield Town Court must also be
dismissed because there is no allegation that any of the
individual government officials, such as the Town Justice,
deputies or assistant prosecutors, were acting pursuant to
a policy or custom of the Town of Wheatfield or Niagara
County. In the absence of such an allegation, the complaint
fails to state a claim for relief and must be dismissed.
See Monell v. New York City Dept. of Social Services, 436
U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Municipalities are not subject to § 1983 liability solely on the
basis of a respondeat superior theory. Collins v. City of Harker
Heights, 503 U.S. 115, 121, 112 S.Ct. 1061, 117 L.Ed.2d 261
(1992); Monell, 436 U.S. at 694.
Additionally, to the extent that the plaintiff may have intended
to sue the Town Justice individually (Complaint, Defendant's
Information), in addition to or instead of the Town Court, the
Town Justice would be entitled to absolute judicial immunity.
See Stump v. Sparkman, 435 U.S. 349, 356–57, 98 S.Ct.
1099, 55 L.Ed.2d 331 (1978) (internal quotations and citation
omitted). The same would be true with respect to the District
Attorney or any Assistant District Attorneys involved in the
prosecution of plaintiff. Prosecutors are entitled to absolute
immunity from suits brought under § 1983 “arising out of
[their] prosecutorial duties that are ‘intimately associated
with the judicial phase of the criminal process.” ’ Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir.1996) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128
(1976)), cert. denied, 520 U.S. 1115 (1997). Accordingly, the
claims against the Sheriff's Department, the DA's Office, the
Wheatfield Town Court and, to the extent he is a defendant
herein, the Town Justice, Robert B. Cliffe, are dismissed.
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Ognibene v. Niagara County Sheriff's Dept., Not Reported in F.Supp.2d (2003)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
Claims against County Court, State Supreme
Court, Appellate Division, and Court of Appeals
*3 Plaintiff's complaint purports to allege that these courts
somehow violated his numerous Sixth Amendment rights.
In reality, however, what plaintiff is alleging is that these
courts were in error when they denied or dismissed his various
requests to overturn the ACD disposition of the charges
arising from the July 10, 1997 incident. These claims too must
be dismissed.
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. Papasan v. Allain, 478 U.S. 265,
276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89, 98–100, 104
S.Ct. 900, 79 L.Ed.2d 67 (1984). As agencies or arms of the
State of New York, the courts are immune from suit under
the Eleventh Amendment. See Kentucky v. Graham, 473 U.S.
159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114; see also Saint–
Fleur v. City of New York, 2000 WL 280328, *2 (S.D.N.Y.,
Mar.14, 2000) (collecting cases); Fields v. Walthers, No. 94–
CV–1659, 1997 WL 204308 at *2 (N.D.N.Y. April 5, 1997)
(“For Eleventh Amendment purposes, governmental entities
of the state that are considered ‘arms of the state’ receive
Eleventh Amendment immunity.”). Accordingly, plaintiff's
claims against the County Court, the State Supreme Court,
the Appellate Division, and the Court of Appeals must be
dismissed.
Claims against Samuel Novara
The complaint names Samuel Novara, plaintiff's defense
counsel, as a defendant, and either alleges a § 1983 claim
or a state common law legal malpractice claim, or both,
against him. In any event, the claim or claims pled against this
defendant must be dismissed. First, assuming that plaintiff
intended to sue defense counsel under § 1983, such a claim
must be dismissed because criminal defense counsel are not
“state actors” for purposes of the “state action” requirement
of § 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct.
445, 70 L.Ed.2d 509 (1981). Second, assuming that plaintiff
intended to sue his defense counsel for legal malpractice in
relation to the handling and disposition of his criminal matter,
this Court declines to exercise supplemental jurisdiction, 28
U.S.C. § 1367, over said claim because all the federal claims
have been dismissed at the initial stage of the litigation.
See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d
Cir.2003); 28 U.S.C. § 1367(c)(3); see also Giordano v. City
of New York, 274 F.3d 740, 754 (2d Cir .2001) (noting that
dismissal of pendent state law claims is appropriate where all
federal claims have been dismissed and “it appears that the
state issues substantially predominate”) (internal quotation
marks omitted). Accordingly, the complaint is dismissed
without prejudice as against defendant Novara.
CONCLUSION
Plaintiff has met the statutory requirements of 28 U.S.C.
§ 1915(a). Accordingly, plaintiff's request to proceed in
forma pauperis is granted and, for the reasons discussed
above, the complaint is dismissed with prejudice, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii), except with respect to the
state common law legal malpractice claim against defendant
Samuel Novara, which is dismissed without prejudice.
*4 The Court hereby certifies, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal from this Order would not be
taken in good faith, and leave to appeal to the Court of
Appeals as a poor person is denied. Coppedge v. United
States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Further requests to proceed on appeal as a poor person should
be directed, on motion, to the United States Court of Appeals
for the Second Circuit, in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed
in forma pauperis is granted;
FURTHER, that the complaint is dismissed with prejudice,
except with respect to the state common law legal malpractice
claim against defendant Samuel Novara, which is dismissed
without prejudice; and
FURTHER, that leave to appeal to the Court of Appeals as a
poor person is denied.
IT IS SO ORDERED.
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Ognibene v. Niagara County Sheriff's Dept., Not Reported in F.Supp.2d (2003)
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All Citations
Not Reported in F.Supp.2d, 2003 WL 24243989
Footnotes
1 See N.Y.Crim. Proc. Law § 170.55. This disposition cannot be obtained without the consent of both parties
and the court. Id.
2 Shortly after filing the complaint, plaintiff filed what he entitled a “Table of Contents” which outlines the dates
of the various court filings and dispositions that are at issue in his complaint. This Court will treat this Table of
Contents as a document attached to the complaint and incorporated by reference in the complaint. Chance v.
Armstrong, 143 F.3d 698, 698 n. 1 (2d Cir.1998) (“the court may consider facts set forth in exhibits attached
as part of the complaint as well as those in the formal complaint itself”); see Cortec Industries, Inc. v. Sum
Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (“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”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00968-ECC-ML Document 54 Filed 11/26/25 Page 403 of 520

Oliphant v. Villano, Not Reported in F.Supp.2d (2011)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 3902741
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Anthony Wayne OLIPHANT, Plaintiff,
v.
Robert VILLANO, et al., Defendants.
Civil No. 3:09cv862 (JBA).
|
Sept. 6, 2011.
Attorneys and Law Firms
Anthony Wayne Oliphant, Cheshire, CT, pro se.
Kerry L. Keeney–Curtin, Scott M. Karsten, Karsten &
Tallberg, LLC, West Hartford, CT, for Defendants.
RULING ON MOTIONS
JANET BOND ARTERTON, District Judge.
*1 Plaintiff Anthony Wayne Oliphant, currently
incarcerated at Cheshire Correctional Institution, filed suit
pro se 1 against New Haven police officers, Hamden
police officers, and State of Connecticut Department of
Corrections personnel, under the Fourth, Eighth, and
Fourteenth Amendments, pursuant to 42 U.S.C. § 1983 and
for common-law assault and battery. Some of the Hamden
police defendants, specifically Michael Sigmon, Joseph
Venditto, Michael Narwocki, Ronald Glifort, Eric Goclowski,
Robert O'Neil, and Darlene Passapera (collectively the
“Hamden Defendants”) move [Doc. # 113] to dismiss
Plaintiff's claims against them pursuant to Fed.R.Civ.P. 12(b)
(6), and Defendants Joyner, Davis, Howze, Smith, and
Levy of the New Haven police (collectively the “New
Haven Defendants”) 2 move [Doc. # 115] for judgment on
the pleadings, pursuant to Fed.R.Civ.P. 12(c). In response,
Plaintiff moves [Doc. # 132] for leave to amend his complaint,
which proposed amendment he says would “correct[ ]
and remed[y] all [ ]alleged[ ] deficiencies claimed by the
Defendants.” For the following reasons, Defendants' motions
to dismiss and for judgment on the pleadings will be granted
in part and denied in part, and Plaintiff's motion to amend his
complaint will be granted. 3
I. Hamden Defendants
A. Facts
The facts Plaintiff alleges are set out more fully in the Court's
[Doc. # 17] Initial Review Order and Order on Pending
Motions. Plaintiff's only allegations relating to the Hamden
Defendants who move to dismiss are that they accompanied
Hamden police Officer Villano to Plaintiff's home on
September 25, 2006 after “Deedra Dixon told the Hamden–
Police that [P]laintiff [was] attacking Rhonda M. Dixon,
falsely” (Am.Compl.¶¶ 35–37), and that later that evening,
those Defendants returned again with Villano to Plaintiff's
home, at which point Villano “severely kick[ed Plaintiff's]
backdoor repeatedly over-and-over” causing “egregious
damage to the inside doorframe of Plaintiff's backdoor” and
yelled obscenities at Plaintiff (Id. ¶¶ 40–44). During the first
visit on September 25, 2006, “Plaintiff stay[ed] inside of his
dwelling until both Hamden–Police and the Dixon family,
who were making physical threats, with impunity, all had
departed the area.” (Id. ¶ 40.) Plaintiff does not explain how
the second police visit on September 25, which continued into
the early morning on September 26, ended.
Plaintiff's only allegation as to Passapera is that when Plaintiff
called 911 that night, Passapera, a Hamden police dispatcher,
would not connect him to the New Haven Police Department,
but on September 26, 2006, when he again called 911,
Passapera did ultimately connect him to the New Haven
Police.
B. Discussion 4
1. False Imprisonment
Plaintiff claims that among others, the Hamden Defendants
falsely imprisoned him in violation of the Fourth Amendment.
In Connecticut, “false imprisonment, or false arrest, is the
unlawful restraint by one person of the physical liberty
of another.” 5 Russo v. City of Bridgeport, 479 F.3d 196
at 204 (2d Cir.2007) (quoting Outlaw v. City of Meriden,
43 Conn.App. 387, 392 (1996)). The restraint must be
accomplished “through the exercise of force.” Berry v.
Loiseau, 223 Conn. 786, 820 (1992). A Section 1983
claim for false arrest or false imprisonment “rest[s] on the
Fourth Amendment right of an individual to be free from
unreasonable seizures,” Weyan v. Okst, 101 F.3d 845, 852
(2d Cir.1996), and “[a] person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person
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would have believed that he was not free to leave,” United
States v. Mendenhall, 446 U.S. 544, 554 (1980).
*2 Plaintiff alleges that because Officer Villano, who
accompanied the Hamden Defendants, kicked the back door
of his house and screamed threatening profanities at him,
he could not leave his house until after Villano left the
premises, allegations which if true could state a claim for false
imprisonment against Villano. The Hamden Defendants argue
that Plaintiff does not allege that they personally restrained
him in any way, and therefore, he has failed to state a false
imprisonment or arrest claim against them. However, Plaintiff
does allege that they were present while Villano was kicking
and screaming, which is sufficient at this stage to plead
failure to intervene. Police officers “have an affirmative duty
to intercede on the behalf of a citizen whose constitutional
rights are being violated in their presence by other officers.”
O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). “An
officer who fails to intercede is liable for the preventable harm
caused by the actions of the other officers where that officer
observes or has reason to know: (1) that excessive force is
being used, (2) that a citizen has been unjustifiably arrested,
or (3) that any constitutional violation has been committed by
a law enforcement official.” Anderson v. Branen, 17 F.3d 552,
557 (2d Cir.1994) (internal citations omitted). Thus, Hamden
Defendants' motion to dismiss Plaintiff's false imprisonment
claim as to Michael Sigmon, Joseph Venditto, Michael
Narwocki, Ronald Glifort, Eric Goclowski, Robert O'Neil
is denied. However, there is no allegation that Passapera, a
telephone dispatcher, had a “realistic opportunity to intervene
to prevent the harm from occurring,” a necessary showing for
a failure to intervene claim, see id., and therefore, Defendants'
motion to dismiss Plaintiff's false imprisonment claim against
Passapera is granted.
2. Excessive Force
Plaintiff also claims that the Hamden Defendants used
excessive force against him in violation of the Fourth
Amendment. The only physical force against Plaintiff is
alleged to have occurred later during his detention on October
6, 2006 by non-moving Defendants Sheppard and Onofrio.
Defendants' personal involvement in alleged constitutional
deprivations is required under Section 1983. Farid v. Ellen,
593 F.3d 233, 249 (2d Cir.2010). Because Plaintiff does
not allege the presence of any of the Hamden Defendants
during that confrontation, that encounter cannot give rise to
an excessive force claim against them.
Construing Plaintiff's claim as related to Villano's “severely
kick[ing]” and “egregiously damag[ing]” his doorframe as
a claim of failure to intervene, the Hamden Defendants
argue that such property damage does not amount to a
constitutional violation. They rely on Hudson v. Palmer,
in which the Supreme Court held that the deprivation of
an inmate's property by a prison guard was not a Fourth
Amendment violation, because he had meaningful post-
deprivation remedies under state law. 468 U.S. 517 (1984).
Defendants also point to Andulan v. City of Seattle, in
which police serving a search warrant damaged property
within the plaintiff's home, which was deemed not to
constitute excessive force. No. C07–500RBL, 2008 WL
786628, *8 (W.D.Wash. Mar. 21, 2008). Here, unlike in
Hudson, the Hamden Defendants do not claim that Plaintiff
had available post-deprivation remedy for damage to his
doorframe, and thus Plaintiff's allegations of egregiousness
could be construed as alleging unreasonable or malicious
property damage, which in the Second Circuit can give rise to
an excessive force claim. See, e.g., Pina v. City of Hartford,
No. 07cv657(JCH), 2009 WL 1231986, * 8 (D.Conn. Apr.
29, 2009) (“ ‘[I]t is well recognized that officers executing
search warrants on occasion must damage property in order
to perform their duty,’ ... [and b]efore an officer can be
liable for property damage resulting from a lawful search,
the plaintiff must establish that the police acted unreasonably
or maliciously in bringing about the damage.”) (quoting
Cody v. Emllo, 59 F.3d 13, 16 (2d Cir.1995)). Therefore,
Plaintiff has sufficiently pleaded a failure to intervene claim
against Hamden Defendants for Villano's excessive force, see
Anderson, 17 F.3d at 557, 6 and the Hamden Defendants'
motion to Plaintiff's excessive force claims against Sigmon,
Venditto, Narwocki, Glifort, Goclowski, and O'Neil is denied.
However, in the absence of any facts from which it can
be inferred that Passapera had a reasonable opportunity to
intervene, this claim is dismissed as to her.
3. Due Process
*3 Plaintiff claims violations of his procedural due process
rights by Hamden Defendants based on the same facts
underpinning his Fourth Amendment claims. To succeed on
a claim of procedural due process deprivation under the
Fourteenth Amendment—that is, a lack of adequate notice
and a meaningful opportunity to be heard—a plaintiff must
first establish that state action deprived him of a protected
property interest. Mathews v. Eldridge, 424 U.S. 319, 334
(1976). 7 As Plaintiff does not allege that any of the moving
Hamden Defendants have deprived him of a property or
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Oliphant v. Villano, Not Reported in F.Supp.2d (2011)
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liberty interest, his procedural due process claims against
them are dismissed.
Plaintiff also claims violations of his substantive due process
rights. State action is violative of substantive due process
rights where it was “ ‘so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.’ “ Okin
v. Village of Cornwall–On–Hudson Police Dep't, 577 F.3d
415, 431 (2009) (quoting County of Sacramento v. Lewis, 523
U.S. 833 (1998)). Conduct that is “intended to injure in some
way unjustifiable by any government interest is the sort of
official action most likely to rise to the conscience-shocking
level.” Lewis, 523 U.S. at 849. The unconstitutional conduct
Plaintiff alleges by the moving Hamden Defendants is that
they accompanied Villano to Plaintiff's house after Deedra
Dixon's report of assault. These factual allegations do not set
forth conduct that could shock the contemporary conscience,
and Plaintiff's substantive due process claim against moving
Hamden Defendants is dismissed.
4. Equal Protection
Plaintiff claims violations of the Equal Protection Clause
of the Fourteenth Amendment, alleging that “Plaintiff at
all times mentioned, herein, is an African–American and a
member of a racial minority [w]ho was subjected to racial
discrimination and was denied full equal benefits of the
laws by defendants.” (Am.Compl.¶ 2.) This allegation is
conclusory and does not contain any facts showing the facial
plausibility of an equal protection claim, and Plaintiff's equal
protection claim against Hamden Defendants is therefore
dismissed.
5. State Law Assault and Battery
Finally, Hamden Defendants move to dismiss Plaintiff's
assault and battery claims. A civil assault is defined as “the
intentional causing of imminent apprehension of harmful
or offensive contact with another.” Dewitt v. John Hancock
Mutual Life Ins. Co., 5 Conn.App. 590, 594 (1985). The
Connecticut Supreme Court has held that “[a]n actor is subject
to liability to another for battery if (a) he acts intending to
cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such
a contact, and (b) a harmful contact with the person of the
other directly or indirectly results.” Alteiri v. Colasso, 168
Conn. 329, 334 n. 3 (1975). Plaintiff has not alleged facts
from which it can be inferred that any Hamden Defendant
intended to cause him imminent apprehension of harmful or
offensive contact or that any Hamden Defendant came into
physical contact with Plaintiff. Thus, his assault and battery
claims against the Hamden Defendants are dismissed.
II. New Haven Defendants
A. Facts alleged
*4 Plaintiff also sues Officers Joyner, Davis, Smith, and
Levy in their individual and official capacities for violations
of the Fourth and Fourteenth Amendments. 8 He alleges that
late at night on September 26, 2006, with Rhonda Dixon,
her three brothers, and Officer Villano in his front yard, he
called the New Haven Police and requested assistance, in
response to which Officers Levy, Howze, and Smith arrived at
approximately 11:45 p.m. (Compl.¶¶ 46–51.) Plaintiff further
alleges that Levy, Howze, and Smith then aided Officer
Villano in towing Plaintiff's car. (Id. ¶¶ 54–55.) Plaintiff
filed a “citizen-police complaint” with Officer Joyner on
September 28, 2006 about this towing, which he says Joyner
never processed. (Id. ¶ 56.) On September 29, 2006, he
met with Officer Davis at the New Haven Department of
Police Service, who he says took down information about
a criminal complaint which Plaintiff sought to have brought
against the Dixons and Officer Villano for trespass and
threatening. Although Davis assigned Plaintiff's criminal
complaint an investigation number, Plaintiff alleges that there
was ultimately no investigation. (Id. ¶ 60.)
B. Discussion 9
1. Fourth Amendment False Arrest and Excessive Force
Plaintiff does not allege that New Haven Defendants
physically restrained him or used any force against him, nor
does he describe any unconstitutional actions in which they
could have intervened. Accordingly, Plaintiff's false arrest and
excessive force claims against New Haven Defendants are
dismissed.
2. Procedural Due Process
Plaintiff claims that the New Haven Defendants also violated
his procedural due process rights, which the New Haven
Defendants characterize as based on allegations that they
failed to provide him with assistance during the altercation
with the Dixons and Villano on September 26, 2006; that
the Citizen–Police Complaint filed with Joyner was never
investigated; and that the criminal complaint made to Davis
against members of the Dixon family and Villano was
never investigated. Plaintiff also alleges that the New Haven
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Oliphant v. Villano, Not Reported in F.Supp.2d (2011)
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Defendants “assisted ... Villano in ‘conversion’ of plaintiff's
vehicle parked on his private property” by having it towed.
(Compl.¶¶ 54–55.)
Insofar as Plaintiff claims that the New Haven Defendants'
failure to intervene during his altercation with the Dixons and
Villano violated the Due Process Clause of the Fourteenth
Amendment, “the Due Process Clauses generally confer no
affirmative right to governmental aid, even where such aid
may be necessary to secure life, liberty, or property interests of
which the government itself may not deprive the individual.”
DeShaney v. Winnebago Cnty. Dep't Soc. Servs., 489 U.S.
189, 195–96 (1989). An exception to this rule applies where
“the officer in some way had assisted in creating or increasing
the danger to the victim,” which may implicate the victim's
rights under the Due Process Clause. Okin v. Village of
Cornwall–On–Hudson Police Dep't, 577 F.3d 415, 437 (2d
Cir.2009) (internal citations omitted). Plaintiff alleges no facts
from which it can be inferred that New Haven Defendants
increased or created any danger posed by the Dixons or
Officer Villano.
*5 As to Plaintiff's allegations that Officers Joyner and
Davis failed to investigate his complaints, “a private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another,” and therefore “lacks standing
to contest the policies of the prosecuting authority when
he himself is neither prosecuted nor threatened with
prosecution.” See In re Attorney Disciplinary Appeal, No. 10–
90018, ––– F.3d ––––, 2011 WL 2090822 (2d Cir. May 27,
2011) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973)). Plaintiff's allegations of failure to conduct criminal
investigations therefore do not implicate violations of his
Fourteenth Amendment rights.
However, Plaintiff's allegations that Officers Levy, Howze,
and Smith helped Officer Villano illegally tow Plaintiff's car,
depriving him of a property interest, without providing him
an opportunity to be heard before or after, are sufficient
at this stage to state a procedural due process Fourteenth
Amendment claim. See, e.g., Perry v. McDonald, 280 F.3d
159, 173–74 (2d Cir.2001) (revocation of obscene vanity
plates did not violate the plaintiff's procedural due process
rights where she was given notice and afforded a post-
revocation hearing, as “[t]he essence of due process is the
requirement that ‘a person in jeopardy of serious loss [be
given] notice of the case against him and opportunity to
meet it.’ ”) (quoting Mathews, 424 U.S. at 348). Thus, New
Haven Defendants' motion to dismiss is denied as to Plaintiff's
allegations that Officers Levy, Howze, and Officer Smith
helped Villano unlawfully tow his car.
3. Equal Protection
The deficiencies in Plaintiff's equal protection claim against
Hamden Defendants apply to his equal protection claim
against New Haven Defendants as well. Although he proposes
amending his complaint to allege that his car was towed from
his property as “overt discrimination” and that such treatment
is different “from others similarly situated” (Proposed Am.
Compl. ¶¶ 56–57), Plaintiff does not allege any basis for
inferring either a discriminatory intent or effect related to
New Haven Defendants' actions, nor the existence of any
comparators or how he was treated differently from them. He
has therefore failed to state a claim under the Equal Protection
Clause against New Haven Defendants.
4. Assault and Battery
For the same reasons Plaintiff's assault and battery claims
against the Hamden Defendants are dismissed, so too
are his assault and battery claims against New Haven
Defendants; Plaintiff does not allege any facts giving rise to an
inference that New Haven Defendants exchanged threatening
communications with him or came into physical contact with
him.
III. Conclusion
Accordingly, Hamden Defendants' [Doc. # 113] Motion
to Dismiss is DENIED in part as to Plaintiff's false
imprisonment and excessive force claims against Sigmon,
Venditto, Narwocki, Glifort, Goclowski, and O'Neil and
GRANTED as to all other claims again them and as
to all claims against Officer Passapera; and New Haven
Defendants' [Doc. # 115] Motion for Judgment on the
Pleadings is DENIED in part, as to Plaintiff's Fourteenth
Amendment procedural due process claims against Smith,
Howze, and Levy and GRANTED as to all other claims.
Plaintiff's [Doc. # 132] Motion to Amend is GRANTED.
*6 IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 3902741
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Oliphant v. Villano, Not Reported in F.Supp.2d (2011)
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Footnotes
1 “A document filed pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2 Defendants Robert Villano, Mark Sheppard, William Onofrio, M. McNeil, Brian Murphy, James Dzurenda,
Jeffrey McGill, Fred Levesque, Morris, Wayne Choinski, and Mumin do not move to dismiss.
3 Fed.R.Civ.P. 15(a) provides that “[t]he court should freely give leave when justice so requires,” and “a Rule
15(a) motion [to amend a complaint] should be denied only for such reasons as undue delay, bad faith,
futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.” Aetna
Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603 (2d Cir.2005). Hamden and New Haven
Defendants oppose Plaintiff's motion to amend on the basis that it contains nothing more than the deficient
conclusory allegations of his original Complaint. However, Plaintiff has added new allegations that support
his Fourth Amendment claims, discussed infra, such as that Villano caused extensive damage to his door
frame. Thus, absent any prejudice aside from the late date of amendment, Plaintiff's [Doc. # 132] Motion to
Amend is granted.
4 To survive a motion to dismiss under Rule 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, ––––,
129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
5 “Claims for false arrest ... brought under § 1983 to vindicate the Fourth and Fourteenth Amendment right to
be free from unreasonable seizures, are ‘substantially the same’ as claims for false arrest ... under state law.”
Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003).
6 Plaintiff also alleges Villano's yelling profane threats as examples of excessive force, but “[v] erbal harassment
itself does not rise to the level of a constitutional violation.” Tafari v. McCarthy, 714 F.Supp.2d 317, 364
(N.D.N.Y.2010); see also Ramriez v. Holmes, 921 F.Supp. 204, 210 (S.D.N.Y.1996) (“Allegations of threats
or verbal harassment, without any injury or damage, do not state a claim under 42 U.S.C. § 1983.”).
7 Property interests that are protected by the Due Process Clause of the Fourteenth Amendment are not
created by that amendment; they are defined by “existing rules or understandings that stem from an
independent source such as state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (cited in Spinelli
v. City of New York, 579 F.3d 160, 168–69 (2d Cir.2009)).
8 A Section 1983 suit against a municipal officer in his official capacity is considered a suit against the
municipality itself, Brandon v. Holt, 469 U.S. 464 (1985), and therefore the officer may be held liable only
if the municipality is liable for an unconstitutional “policy” or “custom” under the principles of Monell v. New
York City Department of Social Services, 436 U.S. 658, 690–91 (1978). See Brandon, 469 U.S. at 472–
73. Because Plaintiff does not allege that New Haven Defendants acted pursuant to a policy or custom,
his official-capacity claims are dismissed and the Court will only consider his claims against New Haven
Defendants in their individual capacities.
9 Motions for judgment on the pleadings brought pursuant to Fed.R.Civ.P. 12(c) are analyzed in accordance
with the same standard used for motions to dismiss for failure to state a claim, stated above. See Hayden
v. Paterson, 594 F.3d 150, 160 (2d Cir.2010).
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Oliphant v. Villano, Not Reported in F.Supp.2d (2011)
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Owens v. Perez, Not Reported in Fed. Supp. (2017)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 11807650
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Marvin E. OWENS, Plaintiff,
v.
E. PEREZ, et al., Defendants.
CASE NO. 3:17cv657(RNC)
|
Signed December 6, 2017
Attorneys and Law Firms
Marvin E. Owens, Suffield, CT, Pro Se.
Raymond J. Rigat, Berchem Moses PC, Milford, CT, Richard
G. Kascak, Jr., City of Bridgeport Office of the City Attorney,
Bridgeport, CT, for Defendant Fitzgerald.
RECOMMENDED RULING
Donna F. Martinez, United States Magistrate Judge
*1 The plaintiff, Marvin E. Owens, who is self-represented,
brings this action pursuant to 42 U.S.C. § 1983. The
defendants named in the case caption are Detective Perez,
Captain Fitzgerald, State's Attorney Kevin Dunn, Detective
Cotta, Internal Affairs Officer E. Rivera, Lieutenant Garcia
and the Bridgeport Police Department. (Doc. #1.) Pending
before the court is the plaintiff's motion for leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. #2.)
Based on the financial information submitted by the plaintiff,
the motion is granted. However, the undersigned recommends
that certain of the claims and defendants be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
I. Legal Standard
The same statute that authorizes the court to grant in forma
pauperis status to a plaintiff also requires the court to evaluate
the complaint and determine whether it should advance.
Under 28 U.S.C. § 1915(e)(2)(B), 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 upon
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); Neitzke v. Williams, 490 U.S. 319,
325 (1989).
In evaluating whether a plaintiff has stated a claim for relief,
the court must “accept as true all factual allegations in the
complaint and draw all reasonable inferences” in plaintiff's
favor. Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000).
Courts “must construe pro se complaints liberally, applying a
more flexible standard to evaluate their sufficiency than we
would when reviewing a complaint submitted by counsel.”
Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d
Cir. 2002). “[A] complaint must provide factual allegations,
not just legal conclusions, and the factual allegations must
support a plausible claim for relief.” Washburn v. Sherry,
No. 3:15CV226(RNC), 2016 WL 777890, at *1 (D. Conn.
Feb. 26, 2016) (citing to Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “A complaint satisfies the plausibility standard
when it pleads facts that allow the court to draw a reasonable
inference that one or more of the named defendants is liable
for the alleged constitutional violation.” Washburn, 2016 WL
777890, at *1.
II. Allegations 1
The plaintiff complained to defendant Officer Rivera of
Internal Affairs about a May 21, 2015 incident involving
another officer, Officer Novia. 2 Rivera refused to conduct a
full investigation and “closed out” the complaint. The plaintiff
complained to defendant Garcia.
*2 The plaintiff was arrested in December 2015 for violating
a protective order. The plaintiff gave State's Attorney Dunn
evidence of the plaintiff's innocence, which showed he should
not be prosecuted. Dunn moved up the plaintiff's court date
from January 13, 2016 to January 8, 2016. The plaintiff
pleaded guilty on January 8, 2016. 3 He pleaded guilty due
to “duress.”
In March 2016, a domestic violence complaint was filed
against the plaintiff. The information provided by the
complainant was false. Defendant Fitzgerald, who was
investigating the claim, “failed to give plaintiff due process
[in that] plaintiff was not notified of [the] complaint by
Detective Fitzgerald or given [an] opportunity to answer
or give [a] statement to [Defendant Fitzgerald] [about the]
complaint.” (Doc. #1 at 4.) Defendant Perez applied for an
arrest warrant. On August 10, 2016, defendant Fitzgerald
arrested the plaintiff.
In connection with this arrest, defendant Fitzgerald seized
the plaintiff's Suzuki motorcycle without probable cause.
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In addition, on August 11, 2016, Bridgeport police officers
“misle[d] animal control to believe that after the plaintiff's
arrest on [August 10, 2016] there was an animal at plaintiff's
home in need of rescue.” (Doc. #1 at 10.) An animal control
employee, led by Bridgeport police, entered the plaintiff's
home without a warrant and removed his dog.
Also in August 2016, defendant Fitzgerald told the local
press that the plaintiff was a “suspect” in a threat called into
Bridgeport City Hall but that there was no probable cause
to arrest the plaintiff for that crime. The plaintiff was not
charged with any crimes concerning the incident. The local
press reported Fitzgerald's statement.
During the pendency of the plaintiff's divorce, police arrived
at the plaintiff's house. Defendant Cotta, who was a friend of
the plaintiff's wife, allowed her to remove a flat screen tv from
the residence, notwithstanding a court order that assets were
not to be divided.
In August 2016, defendant Cotta told the plaintiff's son
that the police were conducting an investigation regarding
the plaintiff's motorcycle. This led the plaintiff's son to
believe that the plaintiff was involved in “illegal activities.”
Cotta advised the plaintiff's son not “to get involved” in the
plaintiff's “affair.” The defendant Cotta also disclosed that the
plaintiff had a domestic violence case involving a “woman
other than plaintiff son's mother.”
The plaintiff alleges “harassment by Bridgeport Police
Department.” (Doc. #1 at 3.) He complained to defendant
Perez about “all [the] violations of plaintiff's rights which
[Perez] ignored.” (Doc. #1 at 10.)
The complaint alleges violation of 42 U.S.C. §§ 1983, 1985
and 1986, 18 U.S.C. § 242 and Conn. Gen. Stat. § 53a-157.
III. Discussion
Liberally construing the plaintiff's allegations, he appears to
challenge the constitutionality of his December 2015 and
August 2016 arrests and prosecutions. Those claims are
foreclosed.
*3 Under Connecticut law and
section 1983, a plaintiff must show that
the prosecution terminated in his or
her favor in order to state a claim of
malicious prosecution or false arrest.
See Roberts v. Babkiewicz, 582 F.3d
418, 420 (2d Cir. 2009) (to prevail
on malicious prosecution claim under
Connecticut law, plaintiff must prove,
inter alia, that the criminal proceeding
terminated in plaintiff's favor) (citing
McHale v. W.B.S. Corp., 187 Conn.
444, 447 (1982)); Miles v. City of
Hartford, 445 Fed. Appx. 379, 383
(2d Cir. 2011) (the Second Circuit has
expressly held, invoking Connecticut
law, that favorable termination is an
element of a section 1983 sounding in
false imprisonment or false arrest.)
Jaynes v. Walkley, No. 3:15CV1420(VAB), 2016 WL
1573442, at *3 (D. Conn. Apr. 19, 2016)(internal quotation
marks omitted.) The plaintiff pleaded guilty in January 2016
to the violation of protective order charge for which he
was arrested in December 2015. “That is not a favorable
termination.” Vializ v. Crespo, No. 3:12CV724(RNC), 2012
WL 6597465, at *1 (D. Conn. Dec. 18, 2012)(plaintiff's guilty
plea “prevents him from proving a claim for false arrest”);
see Diruscio v. Miller, No. 3:11CV1556(RNC), 2012 WL
1379630, at *4 (D. Conn. Apr. 19, 2012) (plaintiff “cannot
recover damages under § 1983 for false arrest or malicious
prosecution when he has been convicted of the charges at
issue.”)
To the extent plaintiff challenges his arrest as procured
by fraud or false statements, such claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the
Supreme Court held that, “to recover damages for 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 had 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.” Id. at 486-87. The plaintiff has not
so alleged. Therefore, the plaintiff's claims regarding his
December arrest and prosecution should be dismissed. See,
e.g., Poventud v. City of N.Y., 750 F.3d 121, 131-32 (2d
Cir. 2014) (recognizing Heck’s bar to malicious prosecution
claims); Whaley v. Lopez, No. 12CV2889(SJF)(ARL), 2012
WL 3137900, at *8 (E.D.N.Y. July 30, 2012)(false arrest
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claim alleging that arrest was procured by false statement
barred by Heck unless and until conviction is reversed,
expunged, declared invalid or otherwise called into question
upon habeas review); Fernandez v. Alexander, 419 F. Supp.
2d 128, 132 (D. Conn. 2006) (plaintiff's claims for lack of
probable cause for his arrest and misleading statements in the
search warrant affidavits barred by Heck because “[i]f the
court were to rule in [plaintiff's] favor on his claims ... the
validity of his conviction necessarily would be called into
question”).
Insofar as the plaintiff alleges that State's Attorney Dunn
violated the plaintiff's constitutional rights in connection with
the December arrest and prosecution, that claim is foreclosed
for an additional reason. State prosecutors have absolute
immunity in connection with the decision whether or not
to commence a prosecution and for conduct “intimately
associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976). “Prosecutorial
immunity from § 1983 liability is broadly defined, covering
virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Giraldo v.
Kessler, 694 F.3d 161, 165 (2d Cir. 2012)(quotation marks
and citations omitted). The plaintiff has not stated any viable
claims as to defendant Dunn.
*4 Turning to the plaintiff's August 2016 arrest, the plaintiff
does not allege a favorable termination and the State of
Connecticut's website reflects that these charges remain
pending. 4 Because this criminal matter did not terminate in
the plaintiff's favor, it cannot be the basis of false arrest and/
or malicious prosecution claims. Those claims also should be
dismissed.
The plaintiff goes on to state that the defendants violated his
due process rights. First, he alleges that they did not notify
him of the complaints before he was arrested. This fails to
state a cognizable constitutional claim. See Todd v. White
Lake Twp., 554 F. Supp. 272, 276 (E.D. Mich. 1983)(“no
constitutional right to be told of an investigation”), aff'd, 738
F.2d 440 (6th Cir. 1984). To the extent that the plaintiff alleges
a due process violation when he complains that there was
no probable cause for his arrests, this is duplicative of his
false arrest claim under the Fourth Amendment and cannot
be the basis of a due process claim. See Tyus v. Newton, No.
3:13cv1486(SRU), 2015 WL 5306550, at *6 (D. Conn. Sept.
10, 2015)(dismissing due process claim premised on false
arrest allegations); Pinter v. City of New York, 976 F. Supp.2d
539, 573 (S.D.N.Y. 2013) (“There is no cause of action for
false arrest or unlawful stop under the Due Process Clause of
the Fourteenth Amendment.”) Accordingly, the due process
claims should be dismissed.
The plaintiff alleges that a “detective and/or police illegally
entered” his home “with no warrant” but does not allege
that the entry was made by any of the named defendants.
This claim should be dismissed. “It is well settled that, in
order to establish a defendant's individual liability in a suit
brought under § 1983, a plaintiff must show, inter alia, the
defendant's personal involvement in the alleged constitutional
deprivation.” Grullon v. City of New Haven, 720 F.3d 133,
138 (2d Cir. 2013). Because the plaintiff has not alleged
personal involvement by any of the named defendants, this
claim should be dismissed.
The plaintiff's claim alleging “harassment by Bridgeport
Police Department” also should be dismissed. To the extent
that the plaintiff seeks to bring a constitutional claim against
the Bridgeport Police Department, that claim should be
dismissed because the Bridgeport Police Department is not
a proper defendant. “To state a cause of action under [42
U.S.C.] § 1983, a plaintiff must allege facts sufficient to
show that (1) some person deprived him of a federal right,
and (2) such person acted under color of state law.” Moorish
Sci. Temple of Am., Inc. v. Smith, 693 F.2d 987, 989 (2d
Cir. 1982). A municipal police department is not a “person”
within the meaning of section 1983 and therefore not subject
to suit under section 1983. See Salaman v. Bullock, No.
3:05cv876(JCH), 2007 WL 879130, at *2 (D. Conn. Mar.
15, 2007)(holding that “a municipal police department is
not subject to suit under section 1983 because it is not
an independent legal entity”); Edwards v. Stewart, No.
3:15cv1257(CSH), 2016 WL 3906572, at *2 n.2 (D. Conn.
July 14, 2016)(“It is basic under both federal and Connecticut
law that municipal police departments are not entities capable
of being sued.”)
The plaintiff alleges that defendant Fitzgerald seized the
plaintiff's Suzuki motorcycle with “no cause.” Liberally
construed, the plaintiff appears to allege an unconstitutional
seizure claim. The plaintiff also alleges that defendant
Fitzgerald identified him to the press as a “suspect” in a threat
called into Bridgeport City Hall and that this statement was
false. The § 1983 seizure and state law defamation claims as
to defendant Fitzgerald should proceed.
*5 The plaintiff lists Officer Pabon in the body of the
complaint but not the caption. Fed. R. Civ. P. 10(a) requires
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that a plaintiff list all defendants in the caption of a complaint.
Because Officer Pabon is not listed in the caption, the court
does not consider him to be a defendant. See, e.g., Robles
v. Armstrong, No. 3:03cv1634(DFM), 2006 WL 752857,
at *1 (D. Conn. Mar. 17, 2006) (“Because the John and
Jane Does are not listed in the caption of the amended
complaint, they are not defendants and the court does not
consider claims against them.”); Gilhooly v. Armstrong,
No. 3:03cv1798(MRK)(WIG), 2006 WL 322473, at *2 (D.
Conn. Feb. 9, 2006) (“Because [plaintiff] has not included
[certain parties] in the caption of his Complaint, they are not
defendants in this action at this time and the Court will not
consider any claims against them.”).
But, even if the plaintiff named Pabon in the caption, the
complaint fails to state a claim. The plaintiff alleges that
Pabon “wrote and filed [a] false police report” in March 2016
to “incriminate [the] plaintiff.” To the extent the plaintiff
alleges that Pabon was involved in the March 2016 complaint
underlying the plaintiff's subsequent arrest in August, any
Fourth Amendment claims as to that arrest fail for the reasons
already stated.
The plaintiff's allegations against defendant Cotta - i.e.,
that he was a friend of the plaintiff's ex-wife and that he
made certain statements to the plaintiff's son - fail to state
any cognizable claim. The plaintiff also alleges that Cotta
permitted the plaintiff's ex-wife to remove a television from
the plaintiff's home in violation of a court order in his divorce
case. To the extent that the plaintiff contends that Cotta should
have investigated or pursued a claim against the plaintiff's
wife for this conduct, this fails to state a constitutional
claim. See Badolato v. Adiletta, No. 3:10CV1855(JBA), 2012
WL 3062035, at *4 (D. Conn. July 26, 2012)(defendant
officers’ failure to pursue a criminal complaint failed to
state a due process violation); Lunini v. Grayeb, 395 F.3d
761, 770 (7th Cir. 2005) (finding that an officer's failure
to arrest an individual involved “an ordinary exercise of
police discretion” that did not “implicate[ ] [the plaintiff's]
rights under the Equal Protection Clause ....”). The complaint
also does not state a denial of access to the courts claim
because the plaintiff failed to allege that he suffered an “actual
injury.” See Akande v. Warden, Corrigan Corr. Inst., No.
3:08CV882(AWT), 2009 WL 3838836, at *2 (D. Conn. Nov.
16, 2009) (“To state a claim for denial of access to the courts,
a plaintiff is required to demonstrate that the defendants acted
deliberately and maliciously and that he suffered an actual
injury.”)
To establish an actual injury, the
plaintiff must allege facts showing
that the defendants took or were
responsible for actions that hindered
his efforts to pursue a legal claim,
prejudiced one of his existing actions,
or otherwise actually interfered with
his access to the courts.... The right
of access to the courts is ancillary to
the underlying claim, without which [a
plaintiff] cannot have suffered injury
by being shut out of court.... Thus, to
establish an actual injury, the plaintiff
must show that his underlying claim
was not frivolous and that his pursuit
of that claim was frustrated by the
defendants’ actions.... [T]he predicate
claim [must] be described well enough
to apply the ‘nonfrivolous’ test and to
show that the ‘arguable’ nature of the
underlying claim is more than hope.
Hedge v. Semple, No. 3:16CV575(MPS), 2017 WL 3097492,
at *2 (D. Conn. July 20, 2017). Here, the plaintiff does
not allege any “facts showing that [Cotta] took or w[as]
responsible for actions that hindered [plaintiff's] efforts to
pursue a legal claim, prejudiced one of his existing actions,
or otherwise actually interfered with his access to the courts.”
Akande, 2009 WL 3838836, at *2. See Fedor v. Kudrak, 421
F. Supp. 2d 473, 483 (D. Conn. 2006)(plaintiff's claim that
defendant officers failed to enforce a court order in plaintiff's
divorce action permitting him to remove certain items from
his home failed to state a denial of access to the courts claim
where plaintiff “does not allege that he was actually prevented
from initiating litigation”).
*6 The plaintiff's allegations that defendants Rivera and
Garcia failed to investigate his complaint regarding another
officer also fail to state a cognizable constitutional claim.
“Simply, there is no constitutional right to an investigation
by government officials.” Vested Bus. Brokers, Ltd. v.
Cty. of Suffolk, No. 16CV4945, 2017 WL 4122616, at *7
(E.D.N.Y. Sept. 15, 2017). See Oliphant v. Villano, No.
3:09CV862(JBA), 2011 WL 3902741, at *5 (D. Conn. Sept.
6, 2011)(plaintiff's allegation that officers failed to investigate
his complaints failed to state a constitutional claim).
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The plaintiff brings claims pursuant to 42 U.S.C. §§ 1985 and
1986. “To state a cause of action under § 1985(3), a plaintiff
must allege (1) a conspiracy (2) for the purpose of depriving
a person or class of persons of the equal protection of the
laws, or the equal privileges and immunities under the laws;
(3) an overt act in furtherance of the conspiracy; and (4) an
injury to the plaintiff's person or property, or a deprivation of a
right or privilege of a citizen of the United States.” Thomas v.
Roach, 165 F.3d 137, 146 (2d Cir. 1999). “In order to maintain
an action under Section 1985, a plaintiff ‘must provide some
factual basis supporting a meeting of the minds, such that
defendants entered into an agreement, express or tacit, to
achieve the unlawful end.’ ” Webb v. Goord, 340 F.3d 105,
110-11 (2d Cir. 2003). The plaintiff also must show that the
conspiracy was motivated by a “racial, or perhaps otherwise
class-based invidiously discriminatory animus.” Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). The plaintiff fails to
allege facts to support a claim of conspiracy on the part of the
defendants. Nor does the plaintiff allege that the actions of any
defendant were taken because of his race or other class-based
discriminatory animus. The plaintiff's § 1985 claim should
be dismissed. See Boddie v. Schnieder, 105 F.3d 857, 862
(2d Cir. 1997) (dismissal of “conclusory, vague or general
allegations of conspiracy to deprive a person of constitutional
rights” is proper).
Section 1986 provides no substantive rights. “Rather, it
provides a remedy for the violation of section 1985. As a
result, a prerequisite for an actionable claim under section
1986 is a viable claim under section 1985.” Brown v. Semple,
No. 3:16CV1144 (SRU), 2017 WL 4246776, at *12 (D.
Conn. Sept. 25, 2017) (“Because [plaintiff] has not stated a
section 1985 claim, his section 1986 is not actionable and is
dismissed. See 28 U.S.C. § 1915(e)(2)(b)(ii).”) See Dwares v.
City of New York, 985 F.2d 94, 101 (2d Cir. 1993) (“Liability
under § 1986 ... is dependent on the validity of a claim under
§ 1985.”).
Finally, the plaintiff's claims asserting violation of Conn. Gen.
Stat. § 53a-157 and 18 U.S.C. § 242 should be dismissed.
These are criminal statutes and do not provide a private
right of action. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009)(“[F]ederal criminal statutes do not provide
private causes of action”); Kloth-Zanard v. Bank of Am., No.
3:15CV1208(MPS), 2017 WL 4429694, at *4 (D. Conn. Oct.
5, 2017)(dismissing claim alleging violation 18 U.S.C. § 242
because there is no private right of action under this statute).
IV. Conclusion
For these reasons, the plaintiff's claims alleging an
unconstitutional seizure of his motorcycle and a state law
defamation claim as to defendant Fitzgerald should proceed.
All other claims and defendants should be dismissed without
prejudice.
*7 Any party may seek the district court's review of this
recommendation. See 28 U.S.C. § 636(b) (written objections
to proposed findings and recommendations must be filed
within fourteen days after service of same); Fed. R. Civ. P.
6(a), 6(d) & 72; Rule 72.2 of the Local Rules for Magistrate
Judges. Failure to object timely to this ruling precludes any
further judicial review of the decision. Knox v. Countrywide
Bank, 673 F. App'x 31, 33–34 (2d Cir. 2016). See Small v.
Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.
1989) (per curiam)(“failure to object timely to a magistrate's
report operates as a waiver of any further judicial review
of the magistrate's decision”; Frank v. Johnson, 968 F.2d
298, 300 (2d Cir. 1992) (failure to file timely objections
to Magistrate Judge's recommended ruling waives further
review of the ruling).
All Citations
Not Reported in Fed. Supp., 2017 WL 11807650
Footnotes
1 As indicated, “the court must accept as true all factual allegations in the complaint.” Bentley v. Tri-State of
Branford, LLC, No. 3:14CV1157(VAB), 2017 WL 3392547, at *2 (D. Conn. Aug. 6, 2017).
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2 Officer Novia is not a defendant in this case. He is, however, named as a defendant in another action filed by
the plaintiff. See Owens v. Connecticut et al., 3:16cv898(RNC). In that earlier-filed case, the plaintiff alleges,
among other things, that Officer Novia arrested him on May 21, 2015 without probable cause.
3 The court takes judicial notice of the plaintiff's state criminal conviction which may be accessed via the
following website: http://www.jud.state.ct.us/index.asp. See O'Neal v. E. Hampton Town, No. CV160579,
2017 WL 4174788, at *3 (E.D.N.Y. Aug. 28, 2017) (“[J]udicial notice may be taken of public records, including
arraignments, arrest reports, criminal complaints and indictments, and certificates of disposition.”)
4 The docket number is F02B-CR16-0291855-S.
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Parrish v. Orange County Law Enforcement Agency-M.P.D., Slip Copy (2025)
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2025 WL 2977797
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Anthony C. PARRISH, Plaintiff,
v.
ORANGE COUNTY LAW ENFORCEMENT
AGENCY-M.P.D., T/O Crawford P.D., Judge
Richard J. Guertin, A.D.A. David J. Byrne, 18-
B Lawyer Christopher Gurda, 18-B Lawyer
Mathew D. Witherow, 18-B Lawyer Alex
Smith, P.O. Valastro, P.O. Ortiz, Defendants.
25-CV-1674 (LLS)
|
Signed October 20, 2025
Attorneys and Law Firms
Anthony C. Parrish, Goshen, NY, Pro Se.
ORDER TO AMEND
LOUIS L. STANTON, United States District Judge:
*1 Plaintiff Anthony C. Parrish, who currently is
incarcerated in the Orange County Correctional Facility in
Goshen, New York, brings this action, pro se, under 42 U.S.C.
§ 1983. He alleges that Defendants violated his constitutional
rights during an arrest in the City of Middletown, Orange
County, New York, as well as during his criminal proceedings
in an Orange County courthouse. By order dated April 2,
2025, the Court granted Plaintiff's request to proceed in forma
pauperis (“IFP”), that is, without prepayment of fees. 1 For
the following reasons, the Court grants Plaintiff 60 days’
leave to file an amended complaint.
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is
frivolous or malicious, 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. §§ 1915(e)(2)
(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007). The Court must also dismiss a complaint when
the Court lacks subject matter jurisdiction. 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,
474-75 (2d Cir. 2006) (internal quotation marks and citations
omitted) (emphasis in original).
Rule 8 of the Federal Rules of Civil Procedure requires a
complaint to make a short and plain statement showing that
the pleader is entitled to relief. A complaint states a claim
for relief if the claim is plausible. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). To review a complaint for plausibility,
the Court accepts all well-pleaded factual allegations as true
and draws all reasonable inferences in the pleader's favor.
Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555).
The Court need not accept, however, “[t]hreadbare recitals
of the elements of a cause of action,” which are essentially
legal conclusions. Id. at 678 (citing 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 brings this action asserting claims arising from his
arrest and subsequent prosecution. He names as Defendants
(1) the Orange County Law Enforcement Agency M.P.D.,
which the Court understands to be the Middletown Police
Department (“MPD”); (2) MPD Officer Ortiz and Crawford
Police Department Officer Valastro; (3) City of Middletown
Judge, Richard J. Guertin; (4) Assistant District Attorney
(“ADA”) David J. Byrne; and (5) Christopher Gurda, Mathew
D. Witherow, and Alex Smith, defense lawyers presumably
assigned to represent Plaintiff in his criminal proceedings.
*2 The following facts are drawn from the complaint. 2
On June 6, 2024, Plaintiff was “unlawfully arrested and
detained at gunpoint by law enforcement in Middletown,
N.Y.,” following the release of a bulletin “that was put out for
Plaintiff as a person of interest for questioning in relation to
a crime that was committed in a nearby Town of Crawford,
N.Y.” (ECF 1, at 6.) Plaintiff asserts that “no probable cause
existed” for his arrest. (Id. at 5.)
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On June 10, 2024, Plaintiff's grand jury proceeding at an
Orange County courthouse commenced. (Id. at 6.) According
to Plaintiff, “no one showed up” on behalf of Plaintiff, the
“Prosecution” or the “Damaged Party.” (Id.) Nonetheless,
the Court “still remanded” him to custody and thereafter
appointed Gurda to represent him. (Id.) Several days later,
after June 13, 2024, when Plaintiff alleges the statute of
limitations had run on the crime for which he was arrested,
Gurda waived Plaintiff's right to “testify on his [own] behalf,”
without his consent. (Id.) A motion filed (either by or for
Plaintiff) addressed “this unlawful, unfair action” of waiver
but was “erroneously denied.” (Id.) At that time, the trial
court granted Plaintiff a reassignment of counsel but “denied
[his simultaneous] motion to be brought back before a
grand jury for a fair legal proceeding.” (Id.) Plaintiff further
alleges that he had “no legal representation [at his] felony
arrai[ ]gnment” because his “assigned counsel had [a] conflict
of interest.” (Id.)
Plaintiff alleges he suffered “mental/emotional stress,” as has
his “wife, children, [and] family.” (Id. at 6.) He also alleges
that he endured “financial stress” due to the “loss of [his]
wages and employment.” (Id.) Plaintiff seeks both “injunctive
and monetary relief.” (Id.)
DISCUSSION
The complaint does not state a claim against any of the
named defendants. First, Plaintiff cannot state a claim against
Judge Guertin, who likely presided over Plaintiff's criminal
proceedings, because this judicial officer is immune from
liability. Second, Plaintiff's claims against ADA Byrne, who
presumably prosecuted Plaintiff, must be dismissed under the
doctrine of prosecutorial immunity. Third, the federal claims
against Plaintiff's defense counsel cannot proceed because
these private individuals cannot be held liable under Section
1983. Fourth, Plaintiff's claims against the two police officers,
who the Court assumes effectuated Plaintiff's arrest, do not
state sufficient facts suggesting that Plaintiff may pursue his
claims against these two individuals. Fifth, Plaintiff's claims
against the MPD are subject to dismissal because Plaintiff
does not state a claim against the police department.
Finally, to the extent Plaintiff's seeks this Court's intervention
in his ongoing criminal proceedings, the Court declines to
intervene.
A. Judicial Immunity (Judge Richard J. Guertin)
Judges are absolutely immune from suit for damages
for any actions taken within the scope of their judicial
responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991).
Generally, “acts arising out of, or related to, individual cases
before the judge are considered judicial in nature.” Bliven v.
Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of
bad faith or malice cannot overcome judicial immunity.” Id. at
209 (citations omitted). This is because, “[w]ithout insulation
from liability, judges would be subject to harassment and
intimidation.” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).
*3 Judicial immunity does not apply when a judge takes
action outside his or her judicial capacity, or when the judge
takes action that, although judicial in nature, is taken “in
absence of all jurisdiction.” Mireles, 502 U.S. at 11-12; see
also Bliven, 579 F.3d at 209-10 (describing actions that are
judicial in nature). But “the scope of [a] judge's jurisdiction
must be construed broadly where the issue is the immunity of
the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Here, Plaintiff names as a defendant Judge Guertin,
presumably because this judicial officer presided over
Plaintiff's criminal proceedings in Orange County. Plaintiff
does not state any facts, however, that suggest Judge Guertin
acted beyond the scope of his judicial responsibilities or
outside his jurisdiction. See Mireles, 502 U.S. at 11-12.
Rather, Plaintiff disagrees with the manner in which his
criminal proceedings unfolded. For example, the complaint
includes allegations showing Plaintiff's disagreement with the
trial court's decision to remand Plaintiff and deny Plaintiff's
motion seeking dismissal under the statute of limitations. (See
ECF 1, at 6.) Because these allegations show that Plaintiff
sues Judge Guertin for “acts arising out of, or related to,
individual cases before him,” this defendant is immune from
suit for such claims. Bliven, 579 F.3d at 210. Accordingly,
the Court dismisses Plaintiff's claims against Judge Guertin
because they seek “monetary relief” against a defendant who
is immune from such relief, 28 U.S.C. § 1915(e)(2)(B)(iii),
and they are consequently frivolous, 28 U.S.C. § 1915(e)
(2)(B)(i). See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir.
2011) (“Any claim dismissed on the ground of absolute
judicial immunity is ‘frivolous’ for purposes of [the in
forma pauperis statute].”); see also 28 U.S.C. § 1915A(b)(1)
(including “frivolous” grounds for dismissal of civil actions
by prisoner seeking redress from governmental entity, officer,
or employee).
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B. Prosecutorial Immunity (Assistant District Attorney
David J. Byrne)
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)). This
immunity applies to, among other prosecutorial actions, the
decision whether to prosecute someone. See Simon v. City
of New York, 727 F.3d 167, 171 (2d Cir. 2013) (among the
prosecutorial actions protected from damages liability by the
doctrine of prosecutorial immunity are “deciding whether to
bring charges and presenting a case to a grand jury or a court,
along with the tasks generally considered adjunct to those
functions, such as witness preparation, witness selection, and
issuing subpoenas”).
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 Assistant District Attorneys’ direction as to where a
criminal defendant would be arraigned was in preparation
for a court proceeding in which the prosecutors were acting
as advocates, and prosecutors were therefore shielded by
absolute immunity (citing, inter alia, Van de Kamp)).
*4 Here, Plaintiff's claims against ADA Byrne, who likely
is the prosecutor assigned to Plaintiff's criminal case, appear
to be based solely on Byrne's conduct within the scope
of his official duties. Because Byrne is immune from suit
when allegations concern the initiation of a prosecution of
the presentation of the State's case against the plaintiff,
Byrne is absolutely immune from liability in this lawsuit.
Accordingly, the Court dismisses these claims because they
seek monetary relief against a defendant who is immune from
such relief, 28 U.S.C. § 1915(e)(2)(b)(iii), and consequently
are frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). See Collazo v.
Pagano, 656 F. 3d 131, 134 (2d Cir. 2011) (holding that claim
against prosecutor is frivolous if it arises from conduct that is
“intimately associated with the judicial phase of the criminal
process”).
C. Private Actors (Christopher Gurda, Matthew D.
Witherow, and Alex Smith) 3
A claim for relief under Section 1983 must allege facts
showing that each defendant acted under the color of a state
“statute, ordinance, regulation, custom or usage.” 42 U.S.C. §
1983. Private parties therefore generally are not liable under
the statute. Sykes v. Bank of America, 723 F.3d 399, 406
(2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary
Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.
2002) (“[T]he United States Constitution regulates only the
Government, not private parties.”).
Absent special circumstances suggesting concerted action
between an attorney and a state representative, see Nicholas
v. Goord, 430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)),
the representation of a defendant by private counsel in state
criminal proceedings does not constitute the degree of state
involvement or interference necessary to establish a claim
under Section 1983, regardless of whether that attorney is
privately retained, court-appointed, or employed as a public
defender. See Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir.
2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 324-25
(1981)); Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir.
1997) (“[I]t is well-established that court-appointed attorneys
performing a lawyer's traditional functions as counsel to
defendant do not act ‘under color of state law’ and therefore
are not subject to suit under 42 U.S.C. § 1983.”).
Defendant Gurda, Witherow, and Smith are private attorneys
who are not alleged to have worked for any state or other
government body, even though the trial court assigned
them to represent Plaintiff during his criminal proceedings.
See Bourdon, 386 F.3d at 90 (holding that court-appointed
lawyers are not state actors). As such, they are not subject
to suit under Section 1983, and the Court therefore dismisses
these claims for failure to state a claim. See 28 U.S.C. §§
1915(e)(2)(B)(ii).
D. Failure to State a Claim (Police Officers Ortiz and
Valastro; Middletown Police Department)
Plaintiff names two police officers as defendants in this
action: Officer Valastro of the Crawford Police Department
and Officer Ortiz of the Middletown Police Department. 4
The Court construes the complaint as asserting false arrest and
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malicious prosecution claims against these two defendants.
The Court also construes the complaint as asserting a
municipal liability claim against the MPD and the City of
Middletown.
1. False Arrest Claim
*5 A claim for false arrest under Section 1983 incorporates
the elements of a false arrest claim under state law. See Boyd
v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003). To state a
false arrest claim 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) (“The existence of probable cause to arrest
constitutes justification and is a complete defense to an action
for false arrest.”) (quoting Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996) (internal quotation marks omitted)).
“[P]robable cause to arrest exists when the officers 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.” Id. at
84-85 (quoting Weyant, 101 F.3d at 852). “When determining
whether probable cause exists courts must consider those
facts available to the officer at the time of the arrest and
immediately before it, as probable cause does not require
absolute certainty.” Panetta v. Crowley, 460 F.3d 388, 395
(2d Cir. 2006) (internal quotations and citations omitted).
Generally, the “[p]olice have probable cause to arrest if they
receive information from a putative crime victim, unless the
circumstances raise doubt as to the person's veracity.” Id.
Here, Plaintiff does not include enough facts to state a false
arrest claim against either officer because he does not describe
the circumstances of his arrest or the actions of the officers
who arrested him. Plaintiff does not mention either officer
by name in the body of his complaint. Rather, he states that
“law enforcement made an unlawful arrest of Plaintiff” in
Middletown, New York, “without [his] being a suspect of
a crime” and where “[n]o identification was made to give
probable cause for arrest.” (ECF 1 at 5-6.) Without describing
the relevant events leading up to and during the arrest,
the complaint does not set forth allegations that plausibly
suggest that either officer falsely arrested him. Accordingly,
the Court grants Plaintiff leave to reassert his false arrest claim
to provide facts suggesting that his arrest was effectuated
without probable cause.
2. Malicious Prosecution
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). “To demonstrate a
favorable termination of a criminal prosecution for purposes
of the Fourth Amendment claim under § 1983 for malicious
prosecution, a plaintiff need only show that his prosecution
ended without a conviction.” Thompson v. Clark, 596 U.S. 36,
39 (2022).
Here, Plaintiff does not state whether his criminal proceedings
are ongoing or terminated in his favor. Because Plaintiff does
not provide sufficient information for the Court to consider
this claim, the Court grants Plaintiff 60 days’ leave to reassert
his malicious prosecution claim.
3. Middletown Police Department
Plaintiff seeks to maintain a Section 1983 claim against the
Orange County Law Enforcement Agency and specifically
the Middletown Police Department. Because Plaintiff seeks
to bring claims against the MPD, the Court construes the
complaint as asserting a municipal liability claim against the
MPD and the City of Middletown. 5
*6 When a plaintiff sues a municipality 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 ... 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., 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 Section 1983
claim 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. See Jones
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v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of
Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997) (internal
citations omitted).
Plaintiff does not include any facts suggesting that the MPD
or the City of Middletown adopted a policy, custom, or
practice that caused him to suffer a constitutional harm.
Rather, Plaintiff's claims appears to be based entirely on the
alleged misconduct of Officer Ortiz who presumably arrested
Plaintiff on June 6, 2024. Even when read liberally, the
complaint omits any fact linking the alleged false arrest to
any municipal policy or custom. See Fisk v. Letterman, 501
F. Supp.2d 505, 527 (S.D.N.Y. 2007) (“[A] single incident
of unconstitutional conduct by a non-policymaking employee
of the City will generally not suffice to establish liability
[under Section 1983].”) (internal quotation marks and citation
omitted). The Court therefore grants Plaintiff leave to reassert
his claims against the MPD and the City of Middletown
to state facts plausibly suggesting that a policy, custom, or
practice caused the violation of his rights.
E. Injunctive Relief Regarding Ongoing Criminal
Proceedings
The Court construes Plaintiff's complaint seeking injunctive
relief as seeking this Court's intervention in his going criminal
proceedings. This Court, however, cannot intervene in those
proceedings under a doctrine established in the United States
Supreme Court case Younger v. Harris, 401 U.S. 37 (1971).
In Younger, the Supreme Court held that a federal court may
not intervene in a pending state court criminal proceeding in
the absence of special circumstances. A federal court must
abstain from exercising jurisdiction if “(1) there is an ongoing
state criminal proceeding; (2) the claim raises important state
interests; and (3) the state proceedings provide an adequate
opportunity to raise the constitutional claims.” Schlagler v.
Phillips, 166 F.3d 439, 442 (2d Cir. 1999). “[I]t is [clear]
that a state's interest in the administration of criminal justice
within its borders is an important one.” Hansel v. Town Ct.
for Town of Springfield, N.Y., 56 F.3d 391, 393 (2d Cir. 1995).
Moreover, “a pending state prosecution [ordinarily] provides
the accused a fair and sufficient opportunity for vindication
of federal constitutional rights.” Kugler v. Helfant, 421 U.S.
117, 124 (1975).
Where a plaintiff can show special circumstances suggesting
bad faith, harassment, or irreparable injury that is both serious
and immediate, a federal court should not abstain from
exercising jurisdiction. For example, if a “proceeding was
initiated with and is animated by a retaliatory, harassing, or
other illegitimate motive,” abstention may not be warranted.
Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 199
(2d Cir. 2002). Moreover, where a plaintiff claims irreparable
injury, “the threat to the plaintiff's federally protected rights
must be one that cannot be eliminated by his defense against
a single criminal prosecution.” Younger, 401 U.S. at 46
(internal quotation marks and citation omitted).
*7 The Court must abstain from intervening in Plaintiff's
ongoing criminal proceedings because the State of New York
has a clear interest in adjudicating this criminal matter and
Plaintiff does not plead any facts suggesting that he cannot
raise his claims in his state court proceeding; Plaintiff's
disagreement with the trial court's decisions does not itself
warrant intervention. Moreover, the complaint does not plead
facts showing any exceptional circumstances suggesting bad
faith, harassment, or irreparable injury. The Court therefore
abstains from exercising jurisdiction and dismisses the action
for lack of subject matter jurisdiction. See Diamond “D”
Const. Corp., 282 F.3d at 197 (“[W]hen Younger applies,
abstention is mandatory and its application deprives the
federal court of jurisdiction in the matter.”).
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of
an attorney. District courts generally should grant a self-
represented plaintiff an opportunity to amend a complaint to
cure its defects, unless amendment 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). Indeed, within
the Second Circuit, “[a] pro se party should be granted leave
to amend if ‘a liberal reading of the complaint gives any
indication that a valid claim might be stated.’ ” Janakievski
v. Exec. Dir., Rochester Psych. Ctr., 955 F.3d 314, 320 (2d
Cir. 2020) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000)). Because Plaintiff may be able to allege additional
facts to state valid claims under Section 1983, the Court grants
Plaintiff 60 days’ leave to amend his complaint to detail his
false arrest and malicious prosecution claims against Officers
Ortiz and Valastro, and his municipal liability claims against
the MPD and the City of Middletown.
In the “Statement of Claim” section of the amended complaint
form, Plaintiff must provide a short and plain statement of the
relevant facts supporting each claim against each defendant.
If he has an address for any named defendant, Plaintiff must
provide it. Plaintiff should include all of the information in the
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amended complaint that Plaintiff wants the Court to consider
in deciding whether the amended complaint states a claim for
relief. That information should include:
1. the names and titles of all relevant people;
2. a description of all relevant events, including what
each defendant did or failed to do, the approximate
date and time of each event, and the general location
where each event occurred;
3. a description of the injuries Plaintiff suffered; and
4. the relief Plaintiff seeks, such as money damages,
injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the
Court: who violated his rights and how; when and where such
violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely
replace, not supplement, the original complaint, any facts or
claims that Plaintiff wants to include from the original
complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint
that complies with the standards set forth above. Plaintiff
must submit the amended complaint to this Court's Pro
Se Intake Unit within 60 days of the date of this order,
caption the document as an “Amended Complaint,” and
label the document with docket number 25-CV-1674 (LLS).
An Amended Complaint form is attached to this order. No
summons will issue at this time. If Plaintiff fails to comply
within the time allowed, and he cannot show good cause
to excuse such failure, the complaint will be dismissed for
failure to state a claim upon which relief may be granted.
The Court dismisses Plaintiff's claims against Judge Richard
J. Guertin, Assistant District Attorney David J. Byrne,
Christopher Gurda, Mathew D. Witherow, and Alex Smith.
See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
*8 SO ORDERED.
Attachment
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All Citations
Slip Copy, 2025 WL 2977797
Footnotes
1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to
proceed IFP. See 28 U.S.C. § 1915(b)(1).
2 The Court quotes from the complaint verbatim. All spelling, grammar, and punctuation are as in the original
unless noted otherwise.
3 Although Plaintiff names three 18-B lawyers as Defendants, he only describes actions by Christopher Gurda
and Matthew D. Witherow. For the purposes of this order, the Court assumes that Alex Smith also represented
Plaintiff in his criminal proceedings.
4 Plaintiff sues the officers in their official capacity. When police officers are sued in their official capacity under
Section 1983, such lawsuits are functionally equivalent to a suit against the governmental entity that the
officers represent. Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (holding that where claims against a
municipality were dismissed, claim against police officers in their official capacity was also properly dismissed
because it was essentially a claim against the municipality). In light of Plaintiff's pro se status, the Court
construes Plaintiff's claims against Valastro and Ortiz as brought against them in their personal capacity.
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5 Unless otherwise authorized by a municipal charter, municipal agencies and departments are not suable
entities, and thus do not have the capacity to be sued, as opposed to the respective municipalities themselves.
See Edwards v. Arocho, 125 F.4th 336, 354 (2d Cir. 2024) (“A plaintiff cannot bring a claim against a
municipal agency that does not have the capacity to be sued under its municipal charter.” (emphasis in
original)). Under the Middletown City Charter, the Police Commission is the final policymaking body for law
enforcement. See Middletown City Charter, Title VII §§ 127–129; Bowman v. City of Middletown, 91 F. Supp.
2d 644, 659 (S.D.N.Y. 2000) (referencing the Middletown City Charter and holding that plaintiff “has made
no showing that any decision of the Police Commission led to his arrest, or that [any named defendant] was
a final policymaker.”). At this early stage, the Court will assume without deciding that the Middletown Police
Department is a suable entity.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 11438085
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ted PERRY, Plaintiff,
v.
COUNTY OF WESTCHESTER, Defendant.
Case No. 06-CV-3000 (KMK)
|
Signed 03/31/2008
Attorneys and Law Firms
Pamela D. Hayes, Esq., Law Office of Pamela D. Hayes, Esq.,
New York, New York, Counsel for Plaintiff.
Stuart E. Kahan, Esq., Oxman Tulis Kirkpatrick Whyatt &
Geiger, LLP, White Plains, New York, Counsel for Defendant.
OPINION AND ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 On April 19, 2006, Plaintiff Ted Perry (“Plaintiff”)
filed this employment discrimination suit against Defendant
County of Westchester (“Defendant”). Before the Court
is Defendant's Motion for Summary Judgment, seeking
dismissal of Plaintiff's Complaint. For the reasons stated
herein, Defendant's Motion is GRANTED.
I. Background
A. Employment and Disciplinary History
The following facts are undisputed, except where indicated.
Plaintiff, an African-American man, began his employment
with Defendant in June 1988 as a seasonal laborer in the
Department of Parks Recreation and Conservation. (Def.'s
Revised Statement of Material Facts Pursuant to Local Civil
Rule 56.1(a) ¶¶ 1-2 (“Def.'s 56.1 Stmt”); Pl.'s Revised
Counter-Statement of Material Facts Pursuant to Local Rule
56.1(b) ¶¶ 1-2 (“Pl.'s 56.1 Stmt”).) Shortly thereafter, in
July 1988, Plaintiff was promoted to a full-time Maintenance
Laborer, Grade IV. (Def.'s 56.1 Stmt ¶ 3; Pl.'s 56.1 Stmt
¶ 3.) In 1992, Plaintiff was promoted to the position of
Maintenance Mechanic II, Grade VII. (Def.'s 56.1 Stmt ¶ 4;
Pl.'s 56.1 Stmt ¶ 4.)
Later, in 1993, Plaintiff's title was reclassified to the position
of Housekeeper, Grade VII. (Def.'s 56.1 Stmt ¶ 5; Pl.'s 56.1
Stmt ¶ 5.) The titles of two other employees – Roger Emery
(“Emery”) and John Ponce (“Ponce”), both of whom are
Caucasian – were also reclassified to Housekeeper, but, unlike
Plaintiff, these employees filed a union grievance regarding
this reclassification. (Def.'s 56.1 Stmt ¶¶ 6-7; Pl.'s 56.1 Stmt
¶¶ 6-7.) Emery and Ponce were successful in their grievance
and had their positions reclassified to Maintenance Mechanic.
(Def.'s 56.1 Stmt ¶ 8; Pl.'s 56.1 Stmt ¶ 8; Aff. of Stuart E.
Kahan, Ex. H (“Kahan Aff.”).)
In the fall of 1995, Plaintiff was suspended for approximately
sixty days without pay in connection with an altercation
between Plaintiff and a co-worker. (Def.'s 56.1 Stmt ¶¶ 9-12;
Pl.'s 56.1 Stmt ¶¶ 9-12; Kahan Aff., Ex. J.) Plaintiff was soon
thereafter reassigned to the Division of General Maintenance
in November 1995. (Def.'s 56.1 Stmt ¶ 13; Pl.'s 56.1 Stmt ¶
13.) Years later, in 2000, Plaintiff was reassigned to Croton
Point Park, and in 2001, Plaintiff was again reassigned to
the Bronx River Parkway Reservation, where he reported to
superintendent Robert Bates (“Bates”). (Def.'s 56.1 Stmt ¶¶
21-22; Pl.'s 56.1 Stmt ¶¶ 21-22.)
Plaintiff was issued a warning notice by Bates on May 14,
2002 for “refus[ing] to do the work assigned to him and
[for leaving the] work site without permission.” (Def.'s 56.1
Stmt ¶ 23; Pl.'s 56.1 Stmt ¶ 23.) On October 24, 2002, Bates
issued to Plaintiff another warning notice, citing Plaintiff
for “time abuse.” (Def.'s 56.1 Stmt ¶ 25; Pl.'s 56.1 Stmt ¶
25.) According to Plaintiff, on November 8, 2002, he missed
several hours of work to answer a jury summons in the
Bronx County Courthouse. (Def.'s 56.1 Stmt ¶ 26; Pl.'s 56.1
Stmt ¶ 26.) Plaintiff alleges that on the following work day,
November 12, 2002, Bates reprimanded Plaintiff for attending
jury duty and told him that his pay would be docked for the
time missed. (Def.'s 56.1 Stmt ¶ 27; Pl.'s 56.1 Stmt ¶ 27.) 1
Defendant claims that Plaintiff's time was never docked for
jury duty (Def.'s 56.1 Stmt ¶ 28), but Plaintiff insists that it
was (Decl. of Pl. Ted Perry in Opp'n to Def.'s Mot. for Summ.
J. ¶ 14 (“Pl.'s Decl.”) ). On November 25, 2002, Plaintiff was
issued another warning notice, this time for taking time off
on November 18, 2002, though he had already used up all
of his available time. (Kahan Aff., Ex. Y.) Plaintiff, however,
denies missing work on November 18, 2002, and insists
that this warning notice was actually for the time he missed
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attending jury duty. (Pl.'s Decl. ¶ 14.) Yet more warning
notices were issued to Plaintiff on December 30, 2002, for
failing to produce a driver's license, and on January 24, 2003
and January 27, 2003, for calling in sick with no sick leave
balance. (Kahan Aff, Ex. AA, BB.)
*2 On May 2, 2003, Plaintiff injured his back while working,
which he did not report until May 5, 2003. (Def.'s 56.1 Stmt
¶¶ 34-35; Pl.'s 56.1 Stmt ¶¶ 34-35.) Also on May 5, Plaintiff
was issued a warning notice for inappropriate conduct and
insubordination. (Kahan Aff., Ex. DD.) That was the last day
Plaintiff went to work. Plaintiff was issued two more warning
notices, on May 8, 2003 and May 9, 2003, both for failing
to report to work and failing to call in. (Def.'s 56.1 Stmt ¶
37; Pl.'s 56.1 Stmt ¶ 37.) Thereafter, Plaintiff began collecting
worker's compensation and social security disability benefits.
(Def.'s 56.1 Stmt ¶ 39; Pl.'s 56.1 Stmt ¶ 39.) Defendant
officially terminated Plaintiff's employment on October 28,
2004. (Def.'s 56.1 Stmt ¶¶ 44-45; Pl.'s 56.1 Stmt ¶¶ 44-45.)
B. Plaintiff's Allegations of Discrimination
Plaintiff alleges that Defendant discriminated against him on
the basis of race in violation of Title VII of the Civil Rights
Act of 1964 and of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981. Plaintiff claims that he was subjected to disparate
treatment and a hostile work environment when he was forced
to work out-of-title – while his Caucasian co-workers were
not – from 1995 through May 5, 2003, performing dangerous
and undesirable tasks that had no relationship to his job duties
and that ultimately resulted in his back injury. (Compl. 3-4,
7-8.) 2 Further, Plaintiff asserts that, from 1999 to 2003, he
was subjected to a hostile work environment when he was
disciplined for minor infractions, while Caucasian employees
were not disciplined for the same or worse behavior. (Id. 3.)
One incident highlighted by Plaintiff is alleged to have taken
place in November 2002, when Plaintiff claims to have had
his pay docked for attending jury duty. Plaintiff asserts that
Caucasian employees – in particular, Jason Aubry (“Aubry”)
– were never docked pay for attending court appearances. (Id.
4-5, 7.)
In sum, Plaintiff alleges that:
Plaintiff has continually been
disciplined and treated in a disparage
[sic] fashion, due to his race. He
was forced to work out of title since
1995 when he was required to perform
tasks which had no relationship
to his duties. He was docked for
performing legitimate duties, such
as jury duty, all the while white
employees were given time off to
go to court. He was disciplined,
while other white employees were
not disciplined for the same or worse
behavior. Said discrimination occurred
solely because of Plaintiff's race, and
amounted to a hostile environment.
(Id. 1-2.)
C. Procedural History
On October 5, 1999, Plaintiff filed a complaint alleging
harassment on account of his race with the Westchester
County Equal Employment Opportunity/Affirmative Action
Office (“EEO/AAO”). (Def.'s 56.1 Stmt ¶ 14; Pl.'s 56.1 Stmt
¶ 14.) In February 2000, the EEO/AAO determined that there
existed no evidence of racial discrimination or harassment,
and in May 2000, the EEO/AAO closed its file on Plaintiff's
complaint. (Def.'s 56.1 Stmt ¶¶ 15-16; Pl.'s 56.1 Stmt ¶¶
15-16.) Plaintiff filed a complaint dated June 2, 2000 with
the Equal Employment Opportunity Commission (“EEOC”),
alleging racial discrimination and retaliation premised on a
continuing violation spanning from August 2, 1999 to April
14, 2000. (Def.'s 56.1 Stmt ¶ 17; Pl.'s 56.1 Stmt ¶ 17.) In June
2001, the EEOC issued to Plaintiff a Dismissal and Notice of
Rights Letter, in which it “adopted the findings of the State
or Local Fair Employment Practices Agency that investigated
this charge.” (Def.'s 56.1 Stmt ¶ 19; Pl.'s 56.1 Stmt ¶ 19.)
Plaintiff never filed a lawsuit in connection with these claims.
(Def.'s 56.1 Stmt ¶ 20; Pl.'s 56.1 Stmt ¶ 20.)
*3 On August 11, 2003, Plaintiff filed another complaint
alleging discrimination with the New York State Department
of Human Rights (“NYSDHR”). (Def.'s 56.1 Stmt ¶ 40; Pl.'s
56.1 Stmt ¶ 40.) In this complaint, Plaintiff claimed that he
had been treated disparately by Defendant due to his race
from 1999 until May 5, 2003, and that he had been assigned
undesirable tasks at work since 1999. (Kahan Aff., Ex. GG.)
The NYSDHR determined on September 28, 2005, that there
existed no probable cause to support Plaintiff's allegations of
discrimination. (Def.'s 56.1 Stmt ¶ 42; Pl.'s 56.1 Stmt ¶ 42.)
On January 17, 2006, the EEOC issued to Plaintiff a Dismissal
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and Notice of Rights letter. (Def.'s 56.1 Stmt ¶ 43; Pl.'s 56.1
Stmt ¶ 43.)
Plaintiff initiated the present lawsuit on April 19, 2006,
alleging: (i) employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 as amended, 42 U.S.C.
§ 2000e-5(f) (Compl. 8); and (ii) racial discrimination in
violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981
(id. 6). Discovery closed on January 3, 2007. On February
26, 2007, Defendant filed a Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56(b), seeking
summary judgment in its favor on the following grounds:
(a) portions of plaintiff's complaint
are time barred pursuant to the
300 day limitations period set forth
[in] 42 U.S.C. § 2000e-5(e); (b)
plaintiff may not seek damages due
to his termination from employment
since plaintiff failed to exhaust
administrative remedies; (c) the
plaintiff has failed to make out a prima
facie case of racial discrimination via
disparate treatment since the plaintiff
cannot prove that he was subjected
to an adverse employment action or
that a reasonable inference of racial
discrimination can be reached based
upon defendant's actions; (d) assuming
that plaintiff has met the minimal
requirements for a prima facie case
of racial discrimination, the County
presented a race neutral reason for
its employment decisions regarding
[Plaintiff] and the plaintiff cannot
prove that the County's actions were
mere pretext; (e) the plaintiff's claim
based upon the existence of a hostile
work environment must be dismissed
because there is no evidence that
such an environment existed; and (f)
plaintiff's Section 1981 claim must be
dismissed.
(Def.'s Mem. of Law in Supp. of Def. County of Westchester's
Mot. for Summ. J. 1-2 (“Def.'s Mem.”).)
Plaintiff did not file opposition papers by the March 12, 2007
deadline set by Judge Colleen McMahon, to whom this case
was originally assigned. On June 28, 2007, Judge McMahon
issued an order, stating: “Plaintiff's opposition was due March
12, 2007. The court has not received any response. Plaintiff
has 30 days to file a response to the motion. If no response has
been filed, the motion will be deemed submitted and the court
will decide it without benefit of any response.” (Docket No.
27.) Plaintiff failed to file opposition papers within the thirty-
day deadline set by Judge McMahon on June 28, 2007. On
August 6, 2007, the case was reassigned to this Court. Plaintiff
finally filed opposition papers on August 22, 2007 – without
explanation as to the delay or permission from the Court to
do so. The Court held oral argument on March 11, 2008.
For reasons stated herein, Defendant's Motion for Summary
Judgment is GRANTED.
II. Discussion
A. Standard of Review
Summary judgment may be granted when it is shown that
there is “no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). The Court must view all evidence in
the light most favorable to the non-moving party and must
draw all reasonable inferences in the non-movant's favor.
See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d
Cir. 2006). A party seeking summary judgment bears the
burden of establishing that no genuine issue of material fact
exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157
(1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir.
2006). “Once the moving party has made a properly supported
showing sufficient to suggest the absence of any genuine issue
as to a material fact, the nonmoving party, in order to defeat
summary judgment, must come forward with evidence that
would be sufficient to support a jury verdict in his favor.”
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,
18 (2d Cir. 1995). “The motion ‘will not be defeated merely ...
on the basis of conjecture or surmise.’ ” Id. (quoting Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) ); see also
McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4
(2d Cir. 2006) (“[S]peculation alone is insufficient to defeat
a motion for summary judgment.”); Caldarola v. Calabrese,
298 F.3d 156, 160 (2d Cir. 2002) (“[The non-movant] must do
more than simply show that there is some metaphysical doubt
as to the material facts.” (internal quotation marks omitted) ).
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*4 The materiality of the facts considered by the Court
will be governed by substantive law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment,
the Court is not charged with weighing the evidence and
determining its truth, but with determining whether there is
a genuine issue for trial. See Westinghouse Elec. Corp. v.
N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y.
1990); see also Castro v. Metro. Transp. Auth., No. 04-
CV-1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006).
A court's goal should be to “isolate and dispose of factually
unsupported claims.” Celotex, 477 U.S. at 323-24.
While courts are to be “particularly cautious” about granting
summary judgment to employers in cases where the
discriminatory intent of the employer is contested, Schwapp
v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), “[i]t is
now beyond cavil that summary judgment may be appropriate
even in the fact-intensive context of discrimination cases,”
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001). Though district courts must pay careful attention
to affidavits and depositions that may reveal circumstantial
proof of discrimination, see Gallo v. Prudential Residential
Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994), courts
are not to “treat discrimination differently from other ultimate
questions of fact.” Abdu-Brisson, 239 F.3d at 466 (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000) ); see also Schiano v. Quality Payroll Sys., Inc.,
445 F.3d 597, 604 (2d Cir. 2006) (noting the caution with
which the Second Circuit reviews the grant of summary
judgment in discrimination cases “because direct evidence of
discriminatory intent is rare and such intent often must be
inferred from circumstantial evidence found in affidavits and
depositions[,]” but stating that “summary judgment remains
available for the dismissal of discrimination claims in cases
lacking genuine issues of material fact” (internal quotation
marks omitted) ).
B. Applicable Time Limitations
In its Motion for Summary Judgment, Defendant argues that
Plaintiff is not entitled to base his claim on any discrete acts
of alleged discrimination occurring before October 14, 2002
because such acts are more than 300 days before Plaintiff's
NYSDHR complaint was filed. 3 (Def.'s Mem. 3.) Further,
Defendant argues that acts of alleged discrimination that
served as the basis of Plaintiff's 1999 complaint with the
NYSDHR may not form the basis of Plaintiff's present claim
because Plaintiff failed to file suit on those acts within ninety
days of the EEOC's June 11, 2001 Notice of Rights letter. (Id.
5-6.)
To these arguments, Plaintiff responds that his present claims
are not dependent on any discrete acts occurring before those
time periods but insists that consideration of past acts is
appropriate in demonstrating the existence of a hostile work
environment and validating a theory of a continuing violation
based on disparate treatment and out-of-title work. (Pl.'s
Mem. of Law in Opp'n to Def. County of Westchester's Mot.
for Summ. J. Pursuant to Fed. R. of Civ. P. 56(b) 4 (“Pl.'s
Mem.”) (“These instances provide the Court with a history
of how the underlying cause of action came to pass and does
not specifically ask for action on events which started years
earlier. It merely demonstrates the theory of a continuing
violation.”).)
*5 The Supreme Court has made clear that discrete acts
occurring more than 300 days before Plaintiff filed his
complaint with the NYSDHR are not actionable. See Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in
timely filed charges. Each discrete discriminatory act starts
a new clock for filing charges alleging that act. The charge,
therefore, must be filed within the ... 300-day time period
after the discrete discriminatory act occurred.”). Recently, in
Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court
elaborated:
A new violation does not occur,
and a new charging period does
not commence upon the occurrence
of subsequent nondiscriminatory acts
that entail adverse effects resulting
from past discrimination. But of
course, if an employer engages in
a series of acts each of which is
intentionally discriminatory, then a
fresh violation takes place when each
act is committed.... [C]urrent effects
alone cannot breathe life into prior,
uncharged discrimination....
127 S. Ct. 2162, 2169 (2007)
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Acts that were the subject of Plaintiff's 1999 EEO/AAO and
EEOC complaints are also not actionable because Plaintiff
failed to bring suit on those acts within ninety days from
receipt of the EEOC Notice of Rights letter. To the extent that
the second right-to-sue letter, dated January 2006, is based
on the same facts as the first, Plaintiff cannot complain about
those claims in this lawsuit. See Lo v. Pan Am. World Airways,
787 F.2d 827, 828 (2d Cir. 1986) (per curiam) (denying claims
where second EEOC complaint was based on same facts as
earlier lapsed right-to-sue letter). However, the June 2001
right-to-sue letter will not preclude the current suit “to the
extent that plaintiff's Complaint is based on allegations in the
second [EEOC complaint] which did not appear in the first
[EEOC complaint].” Dahbany-Miraglia v. Queensboro Cmty.
Coll., No. 03-CV-8052, 2004 WL 1192078, at *7 (S.D.N.Y.
May 27, 2004). Time-barred acts will only be considered
to the extent that they constitute “background evidence in
support of a timely claim.” Morgan, 536 U.S. at 113 (“The
existence of past acts and the employer's prior knowledge
of their occurrence, however, does not bar employees from
filing charges about related discrete acts so long as the acts are
independently discriminatory and charges addressing those
acts are themselves timely filed.”); see also Williams v. British
Airways, PLC, 06-CV-5085, 2007 WL 2907426, at *11 n.20
(E.D.N.Y. Sept. 27, 2007) (“[C]ertain incidents, even if time-
barred, ‘may constitute relevant background evidence in a
proceeding in which the status of a current practice is at issue.’
” (quoting Morgan, 536 U.S. at 112) ).
The continuing violation theory is a tolling mechanism that
rarely permits recovery for otherwise untimely violations.
See Santiago v. Newburgh Enlarged City Sch. Dist., 485 F.
Supp. 2d 327, 331 (S.D.N.Y. 2007) (“Very few acts qualify as
continuing violations, so as to trigger a continuous tolling of
the statute of limitations.”). A hostile work environment claim
is a type of continuing violation based on the “cumulative
affect of individual acts,” which together constitute “one
unlawful employment practice.” See Morgan, 536 U.S at
115. “It does not matter, for purposes of the [time limitation
in the] statute, that some of the component acts of the
hostile work environment fall outside the statutory time
period. Provided that an act contributing to the claim occurs
within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes
of determining liability.” Id. at 117; accord Santiago, 485
F. Supp. 2d at 331 (“[I]n a hostile work environment case,
acts outside the 300 day limit that contribute to an ongoing
hostile work environment are actionable under a continuing
violation theory.”). The Supreme Court, however, has rejected
the notion “that an employment practice committed with no
improper purpose and no discriminatory intent is rendered
unlawful nonetheless because it gives some effect to an
intentional discriminatory act that occurred outside the
charging period.” Ledbetter, 127 S. Ct. at 2172.
*6 To the extent Plaintiff is able to establish that there
existed a hostile work environment during his employment
with Defendant, recovery may be premised even on untimely
acts as long as they – in conjunction with timely acts – created
a hostile work environment. The Court notes, however, that
even if the past acts contributed to a hostile work environment
under a continuing violation theory, those acts would not
be actionable to the extent that they formed the basis of
Plaintiff's 1999 complaint. Plaintiff's opportunity to file suit
on those alleged violations has long since passed and no
tolling doctrine will revive them at this point. With respect
to Plaintiff's disparate treatment claim based on adverse
employment actions, Plaintiff can only rely on discrete acts
of alleged discrimination occurring within the 300-day period
preceding Plaintiff's August 11, 2003 EEOC complaint. See
Morgan, 536 U.S. at 113.
C. Plaintiff's Request to Supplement the Record
On March 13, 2008, after March 11 oral argument, Plaintiff's
counsel submitted to the Court an application to supplement
the record with a new affidavit from Plaintiff and with what
appears to be the minutes of a meeting held on November
9, 1999. 4 According to Plaintiff's counsel, these additional
submissions “clearly show Plaintiff was treated differently,
that everyone knew about it ... and [that] Plaintiff was held to
a different standard which was discriminatory and caused him
to suffer damages.” (Letter from Pamela D. Hayes, Esq., to the
Court, dated March 17, 2008.) Notably absent from Plaintiff's
counsel's recent submissions is an explanation as to why it has
taken until now to submit these items to the Court – over a
year after Plaintiff's full response to Defendant's Motion was
due.
“Under Fed. R. Civ. P. 6(b)(2), the Court has discretion to
allow plaintiff to submit new evidence if the Court determines
that plaintiff's failure to submit such evidence in a timely
fashion ‘was the result of excusable neglect.’ ” Davidson v.
Scully, 148 F. Supp. 2d 249, 251 (S.D.N.Y. 2001) (quoting
Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984)
). “The determination whether neglect is ‘excusable’ in a
particular case rests with the sound discretion of the district
court.” Keenan, 740 F.2d at 132. In making the equitable
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determination of whether failure to make a more timely
submission of new evidence constitutes excusable neglect, the
factors that the Court may consider include: “ ‘the danger of
prejudice’ to the non-moving party, ‘the length of the delay
and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good
faith.’ ” Scully, 148 F. Supp. 2d at 251-52 (quoting Pioneer
Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380,
395 (1993) ).
Here, the Court has little trouble finding that Plaintiff (or,
really his counsel) has failed to meet the excusable neglect
burden. The information Plaintiff seeks to add was available
to him long ago (over a year) and obviously any first-
hand testimony he offers has always been available to him.
Moreover, Defendant is plainly prejudiced by the late use
of this information as it likely would have been the subject
of rigorous inquiry during Plaintiff's deposition and other
discovery. Nor is there good faith. Plaintiff's counsel only
tendered these new offerings when it was clear that her initial
representations were exposed as wholly unsupported by the
record as it existed at the time the Motion was fully briefed.
Thus, the Court finds the extraordinary delay here to be
inexcusable. Therefore, Plaintiff's request to supplement the
record with the March 13 submissions is denied.
D. Plaintiff's Claims of Employment Discrimination
*7 Plaintiff claims he was the victim of employment
discrimination. To establish a claim of racial discrimination,
Plaintiff must show that either: “(1) an adverse employment
action under circumstances giving rise to an inference of
discrimination based on race; or (2) harassment on the basis of
race that amounts to a hostile work environment.” Williams,
2007 WL 2907426, at *11 (citing Feingold v. New York, 366
F.3d 138, 149 (2d Cir. 2004) ). Plaintiff asserts claims of racial
discrimination based on each of these theories, so the Court
will consider them in turn.
1. Disparate Treatment Claim & the
McDonnell Douglas Framework
Title VII of the Civil Rights Act of 1964 makes it an “unlawful
employment practice for an employer ... to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race....” 42 U.S.C. § 2000e-2(a)(1). The
Supreme Court's opinion in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), “established an allocation of
the burden of production and an order for the presentation of
proof in Title VII discriminatory-treatment cases.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). First, the
plaintiff must establish, by a preponderance of the evidence,
a prima facie case of racial discrimination. Id. Plaintiff's
burden in establishing a prima facie case is “de minimis.”
See Douglas v. Dist. Council 37 Mun. Employees' Educ. Fund
Trust, 207 F. Supp. 2d 282, 289 (S.D.N.Y. 2002). However,
a party's bald assertions, without more, are insufficient to
overcome a motion for summary judgment. See Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985) (“To allow a party to
defeat a motion for summary judgment by offering purely
conclusory allegation of discrimination, absent any concrete
particulars, would necessitate a trial in all Title VII cases.”);
Fair v. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *3
(S.D.N.Y. Sept. 28, 2006) (“To avoid summary judgment ...
the non-moving party must offer ‘some hard evidence’ of its
version of the facts, not merely rely on conclusory allegations
or speculation.”); During v. City Univ. of N.Y., No. 01-
CV-9584, 2005 WL 2276875, at *4, *8-9 (S.D.N.Y. Sept. 19,
2005) (granting summary judgment on discrimination claim
where only evidence was conclusory allegations of plaintiff).
The establishment of a prima facie case gives rise to a
presumption of discrimination. Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 (1981). At that point, the
burden of production (not persuasion) shifts to the defendant
“to provide a legitimate, nondiscriminatory reason for [its]
decision.” Reg'l Econ. Cmty. Action Program, Inc. v. City
of Middletown, 294 F.3d 35, 49 (2d Cir. 2002) (hereinafter
RECAP) (citing Reeves, 530 U.S. at 142 and Heyman v.
Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, Inc., 198 F.3d 68, 72 (2d. Cir. 1999)
). A defendant's burden in this regard is not high; indeed,
a defendant need not prove that it was actually motivated
by these legitimate reasons. See Deravin v. Kerik, No. 00-
CV-7487, 2007 WL 1029895, at *6 (S.D.N.Y. Apr. 2, 2007)
(citing Burdine, 450 U.S. at 254).
If the defendant makes a satisfactory showing, the
presumption of discrimination disappears and the burden
shifts back to the plaintiff. See id. The plaintiff must then
“prove that the defendant[ ] intentionally discriminated
against [him] on a prohibited ground.” RECAP, 294 F.3d at
49. In other words, the plaintiff must show that defendant's
“articulated, legitimate, non-discriminatory reasons were
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pretextual.” Id. (internal quotation marks omitted); accord
Feingold, 366 F.3d at 152 (“If the defendant has stated a
neutral reason for the adverse action, ‘to defeat summary
judgment ... the plaintiff's admissible evidence must show
circumstances that would be sufficient to permit a rational
finder of fact to infer that the defendant's employment
decision was more likely than not based in whole or in part
on discrimination.’ ” (quoting Stern v. Trs. of Columbia Univ.,
131 F.3d 305, 312 (2d Cir. 1997) ) ); Deravin, 2007 WL
1029895, at *6 (“The plaintiff ‘may succeed in this either
directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of
credence.’ ” (quoting Burdine, 450 U.S. at 254) ).
*8 Under McDonnell Douglas and its progeny, the plaintiff
has the ultimate burden of proving discrimination, regardless
of whether the defendant offers evidence of a legitimate
reason for the adverse employment action at issue. See St.
Mary's Honor Ctr., 509 U.S. at 507; Burdine, 450 U.S. at
253; Calabro v. Westchester BMW, Inc., 398 F. Supp. 2d 281,
292 (S.D.N.Y. 2005) (holding that plaintiff ultimately has
the burden of proving employer's discriminatory animus to
survive summary judgment).
a. Prima Facie Case
A plaintiff may establish a prima facie case of disparate
treatment by demonstrating: “1) that he belonged to a
protected class; 2) that he was qualified for the position
he held; 3) that he suffered an adverse employment action;
and 4) that the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory
intent.” Feingold, 366 F.3d at 152.
Because Plaintiff is an African-American man, he belongs
to a protected class and thereby satisfies the first prong of
his prima facie case. Defendant is willing to assume, as is
the Court, that Plaintiff was qualified for the position he
held while working for Defendant, satisfying the second
prong. (Def.'s Mem. 9.) Defendant argues that it is entitled
to summary judgment on Plaintiff's discrimination claim
because Plaintiff failed to satisfy the third and fourth prongs
of his prima facie case.
i. Adverse Employment Action
An adverse employment action is a “ ‘materially adverse
change’ in the terms and conditions of employment. To be
‘materially adverse’ a change in working conditions must be
more disruptive than a mere inconvenience or an alteration of
job responsibilities.” Galabya v. N.Y. City Bd. of Educ., 202
F.3d 636, 640 (2d Cir. 2000) (internal citations and quotation
marks omitted). The Second Circuit has “defined adverse
employment action broadly to include ‘discharge, refusal to
hire, refusal to promote, demotion, reduction in pay, and
reprimand.’ ” Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263
F.3d 208, 223 (2d Cir. 2001) (quoting Morris v. Lindau, 196
F.3d 102, 110 (2d Cir. 1999) ); accord Feingold, 366 F.3d
at 152 (“Examples of materially adverse employment actions
include termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular
situation.” (internal quotation marks omitted) ).
Plaintiff argues that the following constitute adverse
employment actions: (1) the alleged docking of Plaintiff's pay
for attending jury duty on November 8, 2002 (Pl.'s Mem. 11);
and (2) the out-of-title work Plaintiff was allegedly forced to
perform, particularly on May 2, 2003, which led to his back
and neck injury and significant loss of earning potential (id.
9-11). 5 Defendant argues that neither of these constitutes an
adverse employment action. (Def.'s Mem. 10, 12-15.)
*9 Plaintiff alleges that he was docked pay for the several
hours of work he missed on November 8, 2002, when he
answered a jury summons in Bronx County. (Pl.'s Mem. 11;
Compl. 4.) On November 25, 2002, Bates issued to Plaintiff
a warning notice, in which Bates wrote: “Mr. Perry has used
up all his time and continues to take off. On November 18,
2002 [he] used 3 ½ hrs. [leave without pay]. This is warning
no. 2.” (Kahan Aff., Ex. Y.)
Defendant argues that Plaintiff was never docked pay for
attending jury duty on November 8, 2002, but that he was
docked 3.30 hours of pay for being absent on November
18, 2002. In support of this position, Defendant submitted
Plaintiff's leave history, which shows that Plaintiff was not
docked any time on November 8, 2002, and that he was
docked 3.30 hours on November 18, 2002. (Kahan Aff.,
Ex. W.) Defendant also offered affidavits from Joan Vassari,
Defendant's director of personnel, and Bates, Plaintiff's then-
supervisor, both of whom swear that Plaintiff was never
docked pay for attending jury duty. (Aff. of Joan Vassari ¶ 13
(“Vassari Aff.”); Aff. of Robert Bates ¶ 8 (“Bates Aff.”); Dep.
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of Joan Vassari 11 (“Vassari Dep.”) (“[An employee] would
never be docked for jury duty.”).)
The only evidence in the record that supports Plaintiff's
claim that he was docked pay for attending jury duty on
November 8, 2002, is his own deposition testimony and his
own declaration, in which Plaintiff claims that Bates told him
that he would be docked for attending jury duty. (Dep. of Ted
Perry 81-82 (“Pl.'s Dep.”); Pl.'s Decl. ¶ 14.) Plaintiff swears
that he was not absent from work on November 18, 2002,
arguing instead that the time he took off for jury service was
not docked from his paycheck until the following pay period
on November 18, 2002. Plaintiff claims that the November
25, 2002, warning notice was actually for the time Plaintiff
missed on November 8, 2002. (Pl.'s Decl. ¶ 14.)
Thus, with regard to whether Plaintiff was docked pay for jury
duty, the Court has before it conflicting evidence, giving rise
to a factual question suited for a jury. Therefore, construing
the evidence in the non-movant's favor, the Court assumes
for purposes of this Motion that Plaintiff was docked pay for
attending jury duty.
Assuming therefore that Plaintiff's pay was docked for his
jury duty service, the next question is whether such a docking
of pay qualifies as an adverse employment action; in other
words, whether it constitutes a “materially adverse change in
the terms and conditions of employment.” See Galabya, 202
F.3d at 640 (internal quotation marks omitted). For purposes
of this Motion, the Court is willing to assume that it does. See
Cunningham v. Consol. Edison Inc., No. 03-CV-3522, 2006
WL 842914, at *17 (E.D.N.Y. Mar. 28, 2006) (“[D]ocking
of an employee's pay is an adverse employment action.”);
see also Hicks v. Baines, 99-CV-315, 2006 WL 1994808, at
* (W.D.N.Y. July 14, 2006) (“The only specific allegations
that arguably evince an adverse employment action are the
docking of two hours of [one plaintiff's] pay ... and the
docking of 15 minutes of [the other plaintiff's] pay....”).
Therefore, Plaintiff satisfies the third prong of his prima facie
case with respect to the jury duty issue.
Plaintiff argues that he also suffered an adverse employment
action when he was forced to work outside of his Housekeeper
title – often performing the duties meant for employees with
higher pay grades – beginning in 1995. 6 (Pl.'s Mem. 12.)
New York State Civil Service Law § 61(2) prohibits out-of-
title work by declaring that “[n]o person shall be appointed,
promoted or employed under any title not appropriate to the
duties to be performed and, except upon assignment by proper
authority during the continuance of a temporary emergency
situation, no person shall be assigned to perform the duties
of any position unless he has been duly appointed, promoted,
transferred or reinstated to such position....” New York courts
have further defined out-of-title work to encompass situations
“when an employee has been assigned ... to perform the duties
of a higher grade, without a concomitant increase in pay,
frequently, recurrently and for long periods of time.” Sprague
v. Governor's Office of Employee Relations, 786 N.Y.S.2d
634, 635 (App. Div. 2004) (internal quotation marks omitted)
(ellipses in original). 7 However, “not all additional duties
constitute out-of-title work, and the mere fact that there may
be some overlap between two particular positions does not
mandate a finding that a petitioner is being compelled to
perform out-of-title work.” Woodward v. Governor's Office of
Employee Relations, 718 N.Y.S.2d 465, 467 (App. Div. 2001).
*10 Plaintiff claims that his working out-of-title eventually
led to a back injury when, on May 2, 2003, he was ordered
to move several concrete bumpers. (Compl. 3-4; Pl.'s Decl.
¶ 17.) This injury resulted in a partial permanent disability
and loss of Plaintiff's earning potential, which, according to
Plaintiff, constituted an adverse employment action. (Pl.'s
Mem. 9-11; Compl. 7.)
Defendant disputes Plaintiff's claim that he was working out-
of-title or that he was performing the work of a higher salary
grade employee. (Def.'s Mem. 13.) Defendant cites Healy v.
County of Nassau, 796 N.Y.S.2d 377, 379 (App. Div. 2005),
for the proposition that “work is not considered ‘out-of-title’
where it is related to, similar in nature to, or a reasonable
outgrowth of, the ‘in-title’ work.” According to Defendant,
the job assignments that Plaintiff was asked to complete either
fell under his title of Housekeeper or were “reasonably related
to” the Housekeeper job description (Def.'s Mem. 14.), and,
in either case, were based on the needs of the Department (id.
19).
The Court finds a genuine issue of material fact as to
whether the assignments given to Plaintiff – particularly
the May 2, 2003 assignment – were out-of-title, in-title, or
reasonably related to in-title work. In order for Plaintiff to
establish that allegedly out-of-title assignments, particularly
the assignment to move concrete bumpers, constituted an
adverse employment action, Plaintiff must demonstrate that
such assignments resulted in a “ ‘materially adverse change’
in the terms and conditions of [his] employment.” Galabya,
202 F.3d at 640. If what Plaintiff claims is true – that he was
assigned duties outside of his Housekeeper title that somehow
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were typically performed by employees in a higher pay grade
– then Plaintiff will have satisfied his minimal burden of
demonstrating that he suffered an adverse employment action,
at least with regard to out-of-title work performed within the
300-day-period preceding the filing of Plaintiff's NYSDHR
complaint. See Santiago, 485 F. Supp. 2d at 335-36 (referring
to employer's refusal to compensate employee's performance
of out-of-title duties as discrete act). Defendant has failed
to adequately demonstrate that there exists no genuine issue
of material fact with regard to whether Plaintiff's pay was
concomitant with the duties he was assigned. Therefore, for
purposes of this Motion, the Court assumes that Plaintiff
suffered an adverse employment action by being assigned out-
of-title work usually performed by employees with a higher
pay grade.
ii. Inference of Discriminatory Intent
To establish his prima facie case, and thereby shift the
burden of production to Defendant, Plaintiff must establish
an inference of discrimination. Though not required, this is
most commonly done by demonstrating that other similarly
situated persons, not of Plaintiff's protected class, were treated
more favorably than he was in the workplace. See Abdu-
Brisson, 239 F.3d at 467-68. Indeed, Plaintiff has chosen
this approach to make his case. To be similarly situated,
these persons must have been subject to the same standards
governing performance evaluation and discipline and must
have engaged in conduct similar to Plaintiff's. See Norville
v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir.
1999); see also McGuinness v. Lincoln Hall, 263 F.3d 49,
54 (2d Cir. 2001) (“[W]here a plaintiff seeks to establish
the minimal prima facie case by making reference to the
disparate treatment of other employees, those employees
must have a situation sufficiently similar to plaintiff's to
support at least a minimal inference that the difference of
treatment may be attributable to discrimination.”). Evidence
of disparate treatment, however, cannot be based on
conclusory allegations. See Finney v. Planned Parenthood
of N.Y. City, Inc., No. 02-CV-7942, 2003 WL 22928730, at
*4 (S.D.N.Y. Dec. 10, 2003) (granting summary judgment
where only evidence of disparate treatment was plaintiff's
own conclusory allegations); Griffin v. Ambika Corp., 103
F. Supp. 2d 297, 308 (S.D.N.Y. 2000) (“Statements that
are devoid of any specifics, but replete with conclusions,
are insufficient to defeat a properly supported motion for
summary judgment.” (internal quotation marks omitted) ).
*11 Defendant argues that even if Plaintiff did suffer
adverse employment actions, Plaintiff failed to establish that
such actions took place under circumstances giving rise to
an inference of discriminatory intent. (Def.'s Mem. 16-18.)
Plaintiff relies on the alleged disparate treatment between
him and his Caucasian co-workers (in particular, Aubry,
Emery and Ponce) to support his claim that he suffered
adverse employment actions under circumstances giving rise
to an inference of discriminatory intent. (Pl.'s Mem. 12-13.)
More specifically, Plaintiff claims that he was constantly
disciplined and forced to do undesirable out-of-title work,
while his Caucasian co-workers were not. According to
Plaintiff, this disparate treatment demonstrates that the
adverse employment actions he suffered were motivated by
racial discrimination.
In 1993, Emery, Ponce and Plaintiff had their positions
reclassified to that of Housekeeper – the position Plaintiff
still held when his employment with Defendant ended. After
filing a grievance, Emery and Ponce had their positions
reclassified to Maintenance Mechanic, which, according to
Plaintiff, left them “open to higher salaries and promotion
opportunities.” (Pl.'s Decl. ¶¶ 7-8.) Plaintiff claims that he
was not allowed to grieve his reassignment. (Id. ¶ 8.) Plaintiff
makes this argument with no proof whatsoever.
As previously noted, after oral argument, Plaintiff submitted
to the Court an application to supplement the record with
what appears to be the minutes from a meeting that took place
in November 1999. According to Plaintiff, this document
demonstrates that “Defendant treated Plaintiff differently
from the white County employees (Mr. Em[e]ry and Mr.
Ponce), thereby showing that Defendant ... was fully aware
that Plaintiff's title was supposed to have been changed
and was not.” (Letter from Pamela D. Hayes, Esq., to the
Court, dated Mar. 17, 2008.) Despite Plaintiff's urging, this
document cannot be used to create an issue of fact because
the meeting minutes are inadmissible hearsay. See Patterson
v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004);
Witkowich v. Gonzales, 05-CV-7756, 2008 WL 701280, at
*10 n.11 (S.D.N.Y. Feb. 25, 2008) (“[I]nadmissible hearsay ...
[cannot] be used to defeat summary judgment.”). Further, as
discussed above, Plaintiff has failed to demonstrate to the
Court that excusable neglect was to blame for this document
not being added to the record earlier. Cf. Scully, 148 F.
Supp. 2d at 251-52 (plaintiff was permitted to supplement the
summary judgment record because the new evidence was not
previously available, plaintiff exercised good faith, and only
minimal delays would result). Moreover, even if admissible,
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these minutes do Plaintiff no good, for they fail to rebut
Defendant's argument that Plaintiff was always free to grieve
his assignment, but never did. Plaintiff claims he was unaware
of this option, a claim contradicted by the minutes themselves,
but Plaintiff still fails to tender any evidence that Defendant
engaged in any conduct blocking Plaintiff's efforts to grieve
his assigned title.
Without this inadmissible and tardy information, Plaintiff has
no admissible evidence showing that Defendant prohibited
him from grieving his reassignment, that Defendant had an
affirmative obligation to notify Plaintiff of his right to grieve
his reassignment or to help him do it, or that Defendant helped
Emery and Ponce to grieve their status. Moreover, this alleged
act of discrimination was a discrete act occurring several years
before Plaintiff initiated legal action. Therefore, the Court will
not entertain Plaintiff's argument that discriminatory intent
can be inferred from Emery and Ponce being reclassified to
the Maintenance Mechanic position after filing grievances.
Plaintiff also focuses on what he sees as the disparate
treatment between him and Aubry. Plaintiff claims that he
was docked for attending jury duty, but that when Aubry
had to appear in court on several occasions, he was given
time off and never had his pay docked. (Compl. 4-5; Pl.'s
Dep. 117 (“Jason used to go to jail for long periods of
time and come back and have his job and nothing said or
nothing done.”).) 8 Also, Plaintiff alleges that Aubry was
permitted to drive County vehicles without a license – even
though one was required for his position – but that Plaintiff
was disciplined for failing to produce a driver's license –
even though his position did not require that he have such
a license. (Compl. 5; Pl.'s Mem. 13; Kahan Aff., Ex. AA.)
Indeed, according to Plaintiff, he was disciplined for not
having a license, while Defendant actually helped Aubry
obtain his license. (Pl.'s Mem. 13.) Further, Plaintiff claims
that he was constantly disciplined for minor infractions, while
Aubry committed much more serious infractions and was not
similarly disciplined or docked pay. (Id. 13; Compl. 4-5; Pl.'s
Decl. ¶ 19; Kahan Aff., Ex. GG (“In contrast to Mr. Aubry, I
have been written up for numerous incidents, none of which
are as grave as the incidents involving Mr. Aubry.”).)
*12 Plaintiff offers no evidence to support his argument
that Aubry went undisciplined while committing infractions
similar to or worse than those committed by Plaintiff.
Plaintiff was disciplined many times during the course of
his employment with Defendant, mostly for infractions such
as time abuse and insubordination, and he offers no proof
that those were improperly imposed sanctions. (Def.'s 56.1
Stmt ¶¶ 9-12, 23, 25, 29-33, 36-37.) Moreover, Defendant
submitted unrefuted evidence demonstrating that Aubry was
in fact disciplined for time abuse, at least during 2003 and
2004. (Kahan Aff., Exs. LL-NN.) In fact, the evidence shows
that, because of his excessive absenteeism, Aubry was denied
salary increments on August 13, 2003, November 10, 2003,
and February 19, 2004, and that he was denied an unpaid
leave of absence on February 2, 2004. (Id., Ex. MM.) Further,
an Amended Notice of Charges dated April 15, 2004, was
issued to Aubry, detailing 169 charges and specifications
brought against him by Defendant for time abuse spanning
from January 16, 2003, through April 5, 2004. (Id., Ex. LL.)
Aubry resigned before the charges could be resolved. (Id.)
According to Plaintiff, this evidence does nothing to disprove
his claim of disparate treatment since “nothing was done to
Mr. Aubry while Plaintiff was on the job.” (Pl.'s Mem. 13.)
Although the Court agrees with Plaintiff that the record
contains evidence of discipline of Aubry (who was employed
by Defendant for far less time than Plaintiff) that largely
post-dates Plaintiff's employment and, therefore, it does little
to disprove Plaintiff's claim of disparate treatment, it is not
Defendant's burden to disprove an unsupported claim of
disparate treatment. Plaintiff has the ultimate burden under
the McDonnell Douglas framework, St. Mary's Honor Ctr.,
509 U.S. at 507, and he cannot satisfy his burden by making
bare and conclusory assertions that he and Aubry were
similarly situated but that they were treated differently. 9 A
conclusory allegation without support in the record will not
give rise to an inference of discriminatory intent nor will it
defeat a motion for summary judgment.
Aubry, who was a Maintenance Laborer, was required to
have a driver's license. Based on the Housekeeper job
specifications, it appears that Plaintiff was not. 10 (Kahan
Aff., Ex. I.) On December 30, 2002, however, Plaintiff was
issued a warning notice by Bates for failure to produce a
license. (Id., Ex. AA (“Mr. Perry could be asked to drive
at any time and should have his license with him.”).) The
record shows that on June 17, 2002, Aubry was notified
by Commissioner Stanley G. Motley that his probationary
appointment would be terminated if he failed to produce a
driver's license by July 22, 2002. (Pl.'s Exs. in Opp'n Pursuant
to Local Rule 56.1(a) 21 (“Pl.'s Ex.”).) In response to this
notification, Aubry wrote a letter to Motley on July 8, 2002,
indicating that he was in the process of getting his license
back, but that he may not have it back from the Department of
Motor Vehicles (“DMV”) within the time limit specified. (Id.)
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Motley replied to Aubry on July 10, 2002, stating that “[the
County] will try to expedite the return of your driver's license
through the Department of Motor Vehicles. I[n] the event we
can not please be assured that you will still be an employee
in good standing since you have met the legal requirements
and are just awaiting the return of your paperwork from the
State of New York.” (Id.)
*13 Again, Plaintiff has not pointed to any evidence in the
record from which the Court could conclude that Plaintiff
and Aubry were similarly situated with regard to the driver's
license issue. The record demonstrates that Aubry was
threatened with termination (by someone other than Bates) if
he did not produce a driver's license by a certain date. The
record also suggests that Defendant did not offer to “help”
Aubry until it was satisfied that Aubry had done all that he
could to obtain his driver's license and that he was waiting
on paperwork from the DMV. Plaintiff offers no evidence
suggesting that, at the time he was issued a warning notice,
he, like Aubry, had done all that could to obtain his license
but was waiting on documentation from the DMV. Further,
Plaintiff and Aubry did not hold the same positions. Though it
is not entirely clear from the record why Plaintiff was issued a
warning notice for failure to produce a driver's license, there
is nothing in the record suggesting that the reason was racial
discrimination. And, Plaintiff's bare belief that Defendant was
“messing” with him is not evidence of anything. See Powell
v. Consol. Edison Co., 97-CV-2439, 2001 WL 262583, at *12
(S.D.N.Y. Mar. 13, 2001) (“[P]laintiff's subjective belief that a
supervisor had an improper motive is not evidence at all....”).
From this feeble evidence, no reasonable jury could find that
Plaintiff and Aubry were similarly situated but were treated
disparately under circumstances giving rise to an inference of
discriminatory intent.
Plaintiff argues that he was forced to work out-of-title, while
his similarly-situated Caucasian co-workers were not. Some
of his complained of out-of-title duties included digging
ditches, performing firefighter duties, and moving concrete
parking lot bumpers, none of which expressly appear on the
illustrative list of possible Housekeeper duties. (Compl. 3-4;
Kahan Aff., Ex. I.) 11 Even if the Court accepts Plaintiff's
argument that he was given assignments outside of his
Housekeeper title, Plaintiff has offered no evidence from
which the Court could infer that such assignments were
given on account of Plaintiff's race as opposed to any other
reason (such as department need or even personal dislike of
Plaintiff). It is noteworthy that in regard to this claim, Plaintiff
has submitted no evidence of disparate treatment.
Defendant has submitted an affidavit from Bates, in which
he stated that “[t]he decisions regarding jobs to be performed
depended upon the needs of the department and who is
available.... Perry's job assignments were no more difficult,
demanding or dangerous than assignments given to other ...
employees. That Perry did not like some of [ ]his job
assignments is true, but Perry was not singled out for
particular jobs.” (Bates Aff. ¶¶ 3-4.) Plaintiff testified that
during a meeting while Plaintiff was at Bronx River Parkway,
Bates said that “any shit detail that was going to be done,
[Plaintiff] would be doing it.” (Pl.'s Dep. 45.) Plaintiff also
testified that, while at Bronx River Parkway, he worked as
part of a crew – albeit “not the popular crew.” (Id. 44.)
Plaintiff cannot defeat Defendant's Summary Judgment
Motion with these statements. By themselves, these alleged
comments show only that Bates might have disliked Plaintiff
(and others in the group), not that he discriminated against
him. Thus, it is even more apparent that Plaintiff has failed
to demonstrate that any of the work he was assigned –
including the assignment that allegedly led to his back
injury on May 2, 2003 – was assigned to him because of
his race. In a conclusory fashion, Plaintiff claims that he
was made to perform dangerous and demanding out-of-title
work, while Caucasian co-workers were not. (Pl.'s Mem.
9.) Plaintiff has not made any specific allegations asserting,
nor has he provided any admissible evidence suggesting,
that Plaintiff was given assignments more dangerous or
demanding than similarly-situated Caucasian co-workers. 12
See Meiri, 759 F.2d at 998 (“To allow a party to defeat a
motion for summary judgment by offering purely conclusory
allegations of discrimination, absent any concrete particulars,
would necessitate a trial in all Title VII cases.”); Jones,
2008 WL 495498, at *11 (finding plaintiff failed to establish
prima facie case of discrimination because plaintiff offered
no specific information or evidence to substantiate his
conclusory allegation that “white [co-workers] with less
seniority and experience were provided summer employment
while he was not”); Marro v. Nicholson, No. 06-CV-6644,
2008 WL 699506, at *10 (E.D.N.Y. Mar. 12, 2008) (holding
vague and conclusory statements that similarly situated
employees were treated differently failed to give rise to issue
of material fact regarding disparate treatment); Randolph v.
CIBC World Markets, No. 01-CV-11589, 2005 WL 704804,
at *13 (S.D.N.Y. Mar. 29, 2005) (“Although [plaintiff] has
made the general allegation that he was treated more harshly
than white ... employees who committed similar violations ...,
there is no other evidence in the record to support this
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assertion. Conclusory allegations of this sort are insufficient
to survive a motion for summary judgment.”).
*14 As set forth above, Plaintiff has failed to establish a
prima facie case of racial discrimination based on disparate
treatment because he has not offered admissible evidence
suggesting that he suffered adverse employment actions
under circumstances giving rise to an inference of racial
discrimination.
2. Hostile Work Environment Claim
Plaintiff also brings a hostile work environment claim. “The
question of whether a work environment is sufficiently hostile
to violate Title VII is one of fact. On a motion for summary
judgment, the question for the court is whether a reasonable
factfinder could conclude, considering all the circumstances,
that the harassment is of such quality or quantity that a
reasonable employee would find the conditions of [his]
employment altered for the worse.” Schiano, 445 F.3d at 600
(internal quotation marks and citations omitted).
In order to prevail on a hostile work
environment claim, a plaintiff must
first show that the harassment was
sufficiently severe or pervasive to
alter the conditions of the victim's
employment and create an abusive
working environment. Second, the
plaintiff must demonstrate a specific
basis for imputing the conduct creating
the hostile work environment to the
employer.
Feingold, 366 F.3d at 149-50 (internal citations and quotation
marks omitted).
The first prong involves an objective and a subjective
component: “the misconduct shown must be severe or
pervasive enough to create an objectively hostile or abusive
work environment, and the victim must also subjectively
perceive that environment to be abusive.” Id. (internal
quotation marks omitted). In determining whether a work
environment is “hostile” or “abusive,” courts are to look at
the totality of the circumstances, as guided by the following
factors: “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), abrogated
on other grounds by, Burlington Indust., Inc. v. Ellerth,
524 U.S. 742 (1998). Thus, to satisfy the first prong, a
plaintiff “ ‘must demonstrate either that a single incident
was extraordinarily severe, or that a series of incidents
were ‘sufficiently continuous and concerted’ to have altered
the conditions of [his] working environment.’ ” Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Cruz v.
Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) ). Though
a single incident may be severe enough to materially alter
employment conditions, see Patterson, 375 F.3d at 227, in
general the actions taken by the defendant “must be more than
‘episodic; they must be sufficiently continuous and concerted
in order to be deemed pervasive.’ ” Alfano, 294 F.3d at 375
(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997) ); see also Carrero v. N.Y. City Hous. Auth., 890
F.2d 569, 577 (2d Cir. 1989) (holding “incidents must be more
than episodic”). “Where reasonable jurors could disagree as to
whether alleged incidents of racial insensitivity or harassment
would have adversely altered the working conditions of a
reasonable employee, the issue of whether a hostile work
environment existed may not properly be decided as a matter
of law.” Patterson, 375 F.3d at 227.
*15 The existence of a hostile environment alone is
insufficient to make out a Title VII claim, however.
Plaintiff must also show there is some reason to impute
the discriminatory conduct of the employees that created
the hostile work environment to the employer. See Perry,
115 F.3d at 149. Employers are not generally liable for the
harassing behavior of a plaintiff's co-workers; to make an
employer liable for a hostile work environment claim, the
harassment must generally come from a supervisor with
authority over a plaintiff. See Mack v. Otis Elevator Co.,
326 F.3d 116, 123 (2d Cir. 2003) (“[I]t is only when a
supervisor with immediate (or successively higher) authority
over the employee has engaged in the complained of conduct,
that the employer may be subject to vicarious liability.
Employers are not, by contrast, vicariously liable for hostile
work environment created by a mere co-worker of the
victim.” (internal citations and quotation marks omitted) ).
Finally, Plaintiff must prove that the hostile conduct occurred
because of his membership in a protected class. To make
such a showing, a plaintiff must introduce evidence of hostile
conduct that a reasonable juror could find was a result of the
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plaintiff's membership in a protected class. See Brennan v.
Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999).
Plaintiff argues that the accumulation of the following
incidents – which occurred from 1995 through May 2003 –
demonstrate that he was treated differently than his Caucasian
co-workers and constitute a hostile work environment: 13 (1)
After filing a grievance, Emery and Ponce were reclassified
from the Housekeeper title to the Maintenance Mechanic title,
and Plaintiff was not (Pl.'s Mem. 15); (2) Plaintiff was told he
would be fired if he did not do what he was told, regardless
of whether the assignment was in- or out-of-title (id.; Compl.
5; Pl.’s Dep. 112); (3) Plaintiff was the only person docked
pay for going to jury duty (Pl.'s Mem. 15); (4) Plaintiff was
written up for excessive absenteeism on May 8 and 9, 2003,
even though his supervisor knew that he was out because
of the May 2, 2003 injury (id.); (5) Plaintiff had to drive
Aubry around, even though Aubry was required to have a
license (id.; Pl.'s Dep. 113); (6) Plaintiff was not allowed to
wear safety equipment like his Caucasian co-workers (Pl.'s
Mem. 15); (7) Plaintiff was subjected to “Kunta Kinte” jokes
(id. 15-16); 14 and (8) Plaintiff was disciplined for minor
infractions while his Caucasian co-workers were not (Compl.
3). Plaintiff acknowledges that he was not generally subjected
to racial epithets or insults, but insists that, because he was
the only African-American person in his group, no outright
insults were necessary. (Pl.'s Mem. 16.)
*16 Plaintiff does not suggest, and the Court does not find,
that any one of these alleged incidents was severe enough
by itself to alter the conditions of Plaintiff's employment and
thereby constitute hostile work environment. 15 Therefore,
the Court considers these incidents in the aggregate to
determine whether, under the totality of the circumstances,
Plaintiff was subjected to a hostile work environment during
his employment with Defendant. For present purposes, with
regard to timeliness, the Court will assume – without deciding
– that these acts are all properly before the Court as part of
Plaintiff's hostile work environment claim, unless otherwise
noted.
The first issue for the Court is whether Plaintiff was subjected
to an objectively hostile environment during his employment
with Defendant. Feingold, 366 F.3d at 150. In making this
determination, the Harris factors guide the Court's “totality of
the circumstances” analysis. See Harris, 510 U.S. at 23. The
conduct complained of spans a period of approximately eight
years, which is a considerable amount of time considering
the fact that most of the incidents complained of are isolated
occurrences. The fact that the incidents are spread out over
a long period of time tends to weigh against a finding that
Plaintiff's work environment was altered for the worse. See
Williams, 2007 WL 2907426, at *11 (“The incidents that
plaintiff points to were isolated in nature and took place over a
number of years.... Taken together, the incidents described are
separated in time and space and do not demonstrate a change
in work environment.”).
Nonetheless, keeping in mind that it is not for the Court
to act as a “ ‘hierophant of social graces,’ ” see Schiano,
445 F.3d at 605 (quoting Holtz v. Rockefeller Co., 258 F.3d
62, 75 (2d Cir. 2001) ), the Court is unwilling to say that
no reasonable jury could find that the incidents listed above
were severe enough in the aggregate to alter the conditions of
Plaintiff's employment, though the Court has serious doubts.
Indeed, the Second Circuit has cautioned that “hostile work
environment claims present ‘mixed question[s] of law and
fact’ that are ‘especially well-suited for jury determination.’
” Id. (quoting Richardson v. N.Y. State Dep't of Corr. Serv.,
180 F.3d 426, 437 (2d Cir. 1999) ) (alteration in original).
Only when “application of the law to th[e] undisputed facts
will reasonably support only one ultimate conclusion” is
summary judgment appropriate. Richardson, 180 F.3d at 438.
Because reasonable minds may differ on the issue of whether
the conduct complained of altered Plaintiff's employment for
the worse, the Court will not grant summary judgment to
Defendant on the objective element of Plaintiff's hostile work
environment case.
With regard to whether Plaintiff subjectively believed that
his work environment with Defendant was hostile, Plaintiff
has pled that he was caused to “undergo an intimidat[ing],
hostile and offensive work environment causing [him]
monetary damages and emotional injuries and numerous
other injuries.” (Compl. 8.) At this stage, Defendant does not
challenge Plaintiff's claim that he found the work environment
subjectively hostile, so the Court will assume, for purposes of
this Motion, that this element is satisfied.
Plaintiff must show a basis upon which to impute the
discriminatory conduct of the employees that created the
hostile work environment to the employer. See Perry, 115
F.3d at 149. Because most of the complained-of conduct was
alleged to have been committed by Bates, Plaintiff's direct
supervisor, Defendant can be held vicariously liable for any
resulting hostile work environment. See Mack, 326 F.3d at
123.
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*17 Finally, Plaintiff must demonstrate that the hostile
conduct occurred because of his membership in a protected
class. See Brennan, 192 F.3d at 318. “Although the incidents
comprising a hostile work environment claim need not make
reference to any trait or condition on the basis of which
the discrimination has occurred ... they must occur under
circumstances in which ... the incidents can reasonably be
interpreted as having taken place on the basis of that trait
or condition.” Williams, 2007 WL 2907426, at *10 (internal
quotation marks omitted) (ellipses in original). Plaintiff points
to no admissible evidence in the record suggesting that his
race played a role in the way he was treated during his
employment with Defendant. Instead, Plaintiff relies on his
own conclusory statements that: (1) race must have been
a motivating factor because Plaintiff was the only African
American employee in the group (Pl.'s Mem. 16); and (2)
he was treated differently from his Caucasian co-workers
(Compl. 1-2, 3-5, 7; Pl.'s Mem. 15). The problem, however,
is that Plaintiff's membership in a protected class in and of
itself does not establish discriminatory intent. See Ghent v.
Moore, 519 F. Supp. 2d 328, 338 (W.D.N.Y. 2007) (“Without
other evidence of discrimination, [the fact that plaintiff was
the only African-American employee] alone is not probative
of unlawful discrimination.”); Bennett v. Watson Wyatt &
Co., 136 F. Supp. 2d 236, 252 (S.D.N.Y. 2006) (“It is
not enough simply to be a member of a protected class.
To invoke the protections of Title VII, an employee must
have actually suffered discrimination.”). Further, as discussed
above, Plaintiff has offered no evidence demonstrating
that these Caucasian co-workers were similarly-situated to
and actually treated differently than Plaintiff. See Hill v.
Rayboy-Brauestein, 467 F. Supp. 2d 336, 360 (S.D.N.Y.
2006) (“When a person only makes general allegations that
African-Americans are treated differently in the workplace,
those allegations are insufficient to support a hostile work
environment claim.”); see also Marro, 2008 WL 699506, at
*10; Randolph, 2005 WL 704804, at *13.
The Second Circuit has said that “[i]n a hostile work
environment case, it may well be a proper exercise of the
district court's broad discretion to allow the plaintiff to build
[his] case partly by adducing incidents for which the link to
any discriminatory motive may, in the first instance, appear
tenuous or nonexistent.” Schiano, 445 F.3d at 605. However,
the Second Circuit has stood firm on its position that district
courts are not to “treat discrimination differently from other
ultimate questions of fact.” Abdu-Brisson, 239 F.3d at 466;
accord Schiano, 445, F.3d at 603 (“[S]ummary judgment
remains available for the dismissal of discrimination claims
in cases lacking genuine issues of material fact.” (internal
quotation marks omitted) ). On the record before the Court,
no reasonable jury could find that Plaintiff was subjected to a
hostile work environment on account of his membership in a
protected class. Therefore, Defendant's Motion for Summary
Judgment dismissing Plaintiff's hostile work environment
claim is granted.
3. Section 1981 Claim
The McDonnell Douglas burden-shifting framework also
applies to 42 U.S.C. § 1981 claims. See Evans-Gadsden v.
Bernstein Litowitz Berger & Grossman, LLP, 491 F. Supp. 2d
386, 402 (S.D.N.Y. 2007). “To establish the requisite prima
facie case for a violation of [Section 1981], a plaintiff must
establish: (1) that [he] is a member of a racial minority; (2) that
the Defendant intended to discriminate against Plaintiff on the
basis of [his] race; and (3) that the Defendant discriminated
in connection with one of the statute's enumerated activities.”
Id. (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d
Cir. 1999) ).
An individual may be held liable under Section 1981 where
the plaintiff demonstrates “some affirmative link to causally
connect the [defendant] with the discriminatory action.”
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75
(2d Cir. 2000) (internal quotation marks omitted). Although
the elements of a Section 1981 claim and a Title VII claim
are distinct, discriminatory intent is a necessary element
of a Section 1981 claim. See Patterson, 375 F.3d at 226
(“[A] plaintiff pursuing a claimed violation of § 1981 ...
must show that the discrimination was intentional.”). Thus,
a failure to establish sufficient evidence of discriminatory
intent to survive summary judgment on a Title VII claim
is fatal to a similar claim of racial discrimination under
Section 1981. See Gonzalez v. City of New York, 354 F.
Supp. 2d 327, 330 n.2 (S.D.N.Y. 2005) (“Although claims
under 42 U.S.C. § 1981 ... involve different elements than
those involved in Title VII claims, they share in common
with Title VII claims the essential element of intentional
unlawful discrimination. Therefore, the Court's determination
that certain of Plaintiffs' Title VII claims do not survive
summary judgment due to the inadequacy of evidence
regarding discriminatory intent also results in dismissal of
Plaintiffs' § 1981 ... claims.” (internal quotation marks and
citations omitted) ); Patterson, 375 F.3d at 225 (holding
that reasons supporting summary judgment for defendants on
Title VII claims also merited dismissal of plaintiff's Section
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1981 claims). As described in the previous section, Plaintiff
has failed to show intentionally discriminatory conduct on
the part of Defendant, and therefore, summary judgment on
Plaintiff's Section 1981 claim is granted.
III. Conclusion
*18 For the reasons stated herein, Plaintiff's application to
supplement the record is DENIED, and Defendant's Motion
for Summary Judgment is GRANTED. The Clerk of Court is
respectfully directed to terminate all pending motions (Dkt.
Nos. 23, 45), to enter judgment for Defendant, and to close
this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2008 WL 11438085
Footnotes
1 Defendant's Employee Handbook provides the following:
If you are required to serve as a juror or to appear in court pursuant to a subpoena or court order, you will
be granted a leave with pay for such required attendance. Any fees received for such attendance, other
than travel and meals, must be paid to the County. This leave with pay does not apply when your own
personal interests are the subject of the court activity.
(Kahan Aff., Ex. Z.)
2 The Court will cite to Plaintiff's Complaint by page number rather than paragraph number in an attempt to
alleviate the confusion resulting from Plaintiff's reuse of paragraph numbers within the document.
3 “[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially
instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ...,
such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged
unlawful employment practice occurred....” 42 U.S.C. § 2000e-5(e)(1).
4 Plaintiff offered these tardy additions to the record, after he failed to provide the record evidence he claimed
would prove that a supervisor had referred to Plaintiff as “Kunta Kinte.” Obviously, the Court found Plaintiff's
assertion of this claim in response to Defendant's Summary Judgment Motion, which was not backed up
by any evidence in the record (despite representations to the contrary), to be potentially material, if not
dispositive, in resolving the Motion. Accordingly, the Court asked counsel for Plaintiff to show where in the
record there was support for this assertion. Plaintiff never did provide any evidence in the record as it existed
when he responded (several months late) to Defendant's Motion. Instead, Plaintiff sought to augment the
record with the March 13 submissions.
5 Defendant reads Plaintiff's submissions to assert that the various warning notices Plaintiff was issued for time
abuse and failure to produce a driver's license were adverse employment actions in support of this claim.
The Court disagrees with this reading. Instead, it is evident to the Court, based on its reading of Plaintiff's
various submissions, that Plaintiff relies on these warning notices not as adverse employment actions, but
as evidence of discriminatory intent and in support of his hostile work environment claim.
6 Plaintiff offers no specific allegations – let alone evidence – to support this claim. First of all, Plaintiff never
identifies which title would be the appropriate recipient of such duties, nor does he identify the salary grade
appropriate to these duties. Despite these significant infirmities in Plaintiff's claim and because the outcome
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herein is the same either way, the Court will assume – for purposes of this Motion – that the complained-of
assignments would normally be given to an employee with a higher salary-grade title.
7 Interestingly, Plaintiff does not here claim a failure to compensate for higher grade work he allegedly was
assigned, but claims that the out-of-grade work he was assigned both was highly undesirable (which one
would imagine would be lower-grade work) and led to his injuries in May 2003.
8 In his Complaint, Plaintiff also states “the other white employees were given time off without being docked
when they had to perform citizenship duties.” (Compl. 7.) Without any specific allegations or evidence to
support this statement, it cannot be relied upon to establish the fourth prong of Plaintiff's prima facie case. See
Jones v. W. Suffolk Boces, No. 03-CV-3252, 2008 WL 495498, at *11 (E.D.N.Y. Feb. 20, 2008) (finding as
insufficient to satisfy fourth prong of prima facie case plaintiff's conclusory allegation that “white [employees]
with less seniority and experience were provided summer employment while [plaintiff] was not”).
9 On December 14, 2006, Magistrate Judge George A. Yanthis ordered that Defendant turn over to Plaintiff in
discovery Aubry's leave history from 2001 through 2004. (Dkt. No. 15.) Exhibit 34 to Plaintiff's Local Civ. R.
56.1 Statement indicates that these records were in fact provided to Plaintiff. Interestingly, however, Plaintiff
decided not to include Aubry's leave history in the present record. Based solely on the record before it,
the Court has no way of knowing whether Aubry was excessively absent while Plaintiff was employed by
Defendant or, more importantly, whether his pay was ever docked as a result. The Court cannot assume
either of these things to be the case based solely on Plaintiff's bare assertions.
10 The Court notes, however, that there is evidence in the record to suggest that, in May 2002, Plaintiff was
told that some work assignments would require him to drive. (Kahan Aff., Ex. V.) During his deposition,
Plaintiff testified to his belief that his supervisors would make him drive because “they w[ere] just messing
with [him].” (Pl.'s Dep. 60.)
11 Plaintiff elaborated more fully on this issue in his complaint before the NYSDHR:
Since Mr. Bates became my supervisor, I have been assigned tasks that no one else wants to do. These
tasks are the most physically demanding and dangerous assignments. For example, I have been assigned
to dig holes without a back hoe or assistance, and I have been required to move concrete parking lot
bumpers despite the fact that I have a documented back injury. I have been sent to do weed-whacking jobs
without chaps, safety glasses and ear protection. The aforementioned examples are not an exhaustive
list of undesirable duties I have been assigned since 1999. It should be noted that when co-workers are
assigned to work with me, they view the assignments as a form of punishment. I am being punished
everyday especially since almost all the work I perform is out of my job title.
(Kahan Aff., Ex. GG.) Again, it is entirely unclear from Plaintiff's allegations and submissions the title for which
Plaintiff believes these duties are appropriate.
12 One of the alleged out-of-title assignments that Plaintiff complains of was when he was allegedly asked
to perform “firefighter duties.” (Compl. ¶ 1.) However, in an undated letter written by Donald Kranker, a
Maintenance Laborer and Shop Steward, he complains of an August 23, 2002 firefighting assignment that
was given to him, Plaintiff, Jason Aubry and one other employee. (See Pl.'s Ex. 29.) Thus, at least with
respect to the firefighting assignment, the record not only fails to show that Plaintiff was singled out for the
assignment, but actually demonstrates that Caucasian co-workers were given the same assignment; in fact,
Jason Aubry – who happens to be the employee Plaintiff focuses on to demonstrate disparate treatment
– was one of the employees sent to perform firefighting duties with Plaintiff. Therefore, there is no basis
whatsoever for Plaintiff to claim that he was assigned firefighter duties based on his race.
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13 In his Complaint, Plaintiff alleged that the hostile work environment spanned from 1999 to 2003. (Compl. 3.)
14 In his opposition brief, Plaintiff asserted – as evidence that he was subjected to a hostile work environment
– that he endured comments about “Kunta Kinte.” (Pl.'s Mem. 15-16.) In support of this allegation, Plaintiff
offered the Court an unhelpful and erroneous citation – without page number – to Plaintiff's Exhibit 3, which
is an approximately 50-page excerpt from Plaintiff's deposition testimony. Yet, there was no reference to this
comment in Plaintiff's deposition. In fact, nothing Plaintiff provided in opposition to the Summary Judgment
Motion contained any evidence that Plaintiff was subjected to such comments.
During oral argument, the Court asked Plaintiff's counsel what in the record supported the allegation that
Plaintiff was subjected to “Kunta Kinte” comments. Plaintiff's counsel represented to the Court that Plaintiff
testified during his deposition that he was referred to as “Kunta Kinte” by his supervisor. Defendant's counsel
indicated that he had a recollection of such testimony. Plaintiff's counsel further represented that she would
send the relevant pages from Plaintiff's deposition transcript to the Court the following day, which she failed
to do.
Instead, on March 12, 2008, Defendant's counsel sent to the Court Plaintiff's entire deposition transcript
and a letter, in which he represented: “I have found no reference to the ‘Kunta Kinte’ comment referenced
by plaintiff's counsel. I was in error when I stated that such a comment was made by Mr. Perry at his
deposition.” (Letter from Stuart E. Kahan, Esq., to the Court, dated Mar. 11, 2008.)
On March 14, 2008, the Court received from Plaintiff's counsel via overnight mail: (1) a letter dated March
13, 2008, in which she admitted, “[t]here is no reference to [the “Kunta Kinte” comment] in the deposition
transcript,” and (2) an application to supplement the record with a new affidavit from Plaintiff and what appears
to be the minutes of a meeting held on November 9, 1999. (Letter from Pamela D. Hayes, Esq., to the Court,
dated Mar. 13, 2008.) In his putative supplemental affidavit, Plaintiff states that he was referred to as “Kunta
Kinte” by a supervisor identified only as “Mike,” without any details regarding when or where this allegedly
occurred.
This affidavit is suspicious. First, Plaintiff never made this allegation in either claim he made to the EEOC, nor
included it in his Complaint. Second, it is plainly lacking in details – including the full identity of the speaker
and the date. In any event, the Court will not accept this affidavit, as it is way out of time from a party that
has already demonstrated, through his counsel, a profound disregard for deadlines and process in this case.
Cf. Scully, 148 F. Supp. 2d at 251-52 (allowing plaintiff to oppose defendant's summary judgment with new
evidence for limited purposes because plaintiff could not have submitted new evidence earlier and plaintiff
demonstrated good faith).
15 Again, this excludes the alleged “Kunta Kinte” reference.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 865296
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William PFLAUM, Individually and as a Citizen,
Resident and Taxpayer of Town of Stuyvesant, Plaintiff,
v.
TOWN OF STUYVESANT, COLUMBIA CTY.,
N.Y.; and Valerie Bertram, Individually and as
Supervisor of Town of Stuyvesant, Defendants.
1:11-CV-0335 (GTS/DJS)
|
Signed 03/02/2016
Attorneys and Law Firms
WILLIAM PFLAUM, Plaintiff, Pro Se 1 , 3 Rybka Road, Box
40, Stuyvesant Falls, NY 12174.
BRYAN D. RICHMOND, ESQ., THOMAS J. MORTATI,
ESQ., BURKE, SCOLAMIERO, MORTATI & HURD, LLP,
Attorneys for Defendants, 9 Washington Square, Suite 201,
P.O. Box 15085, Albany, NY 12212-5085.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this civil rights action
filed by William Pflaum (“Plaintiff”) against the Town of
Stuyvesant (“Town”) and Valerie Bertram, Town Supervisor
(“Bertram”) (collectively, “Defendants”), is Defendants'
motion for summary judgment pursuant to Fed. R. Civ. P. 56.
(Dkt. No. 59.) For the reasons set forth below, Defendants'
motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
As a result of the Court's prior decisions (Dkt. Nos. 17,
26), Plaintiff's sole remaining claim in this action is his
First Amendment retaliation claim. More specifically, as
articulated in his Complaint (which was drafted by Plaintiff,
pro se, and therefore must be construed with special
solicitude), that claim alleges three separate ways he was
retaliated against for publicly criticizing Town officials. 2
First, Plaintiff alleges that, in retaliation for filing charges
of ethical violations against Defendant Bertram, she (a)
“collaborated with and supported” the Town's Fire Chief
to deny and/or threaten to deny fire protection to Plaintiff,
(b) “supported and encouraged” various Town employees
to “illegal[ly] revo[ke] ... Plaintiff's permit to operate his
business,” and (c) “supported and encouraged” the Town
Assessor's “campaign to intimidate Plaintiff by linking [his]
political speech [with his] real estate assessment.” (Dkt. No.
1, ¶¶ 20-23, 116 [Pl.'s Compl.].)
Second, Plaintiff alleges that, in retaliation for writing
columns on his Internet blog regarding corruption among the
Town's public officials, the Town filed false criminal charges
against him. (Id., ¶ 116.)
Third, and finally, Plaintiff alleges that, in retaliation for
criticizing Bertram, the Town Assessor, and the Town, the
Town Assessor used his authority to raise taxes in order to
intimidate Plaintiff into silence. (Id., ¶¶ 23, 39, 47, 116.)
B. Defendants' Motion for Summary Judgment
*2 In their motion for summary judgment, Defendants
request the dismissal of Plaintiff's Complaint in its entirety.
(Dkt. No. 59.) In support of their motion, Defendants make
the following four arguments. First, Defendants argue that
there was no adverse action against Plaintiff in that there
was no actual chilling of Plaintiff's First Amendment speech
or any other damages. (Dkt. No. 61, at 3-8 [Defs.' Mem. of
Law].)
Second, Defendants argue that, in any event, any such adverse
action was not motivated or substantially caused by Plaintiff's
First Amendment speech. (Id. at 5-6.)
Third, in the alternative, Defendants argue that Bertram was
not personally involved in any deprivation of fire protection
services to Plaintiff. (Id. at 5, 8-10.)
Fourth, and finally, Defendants argue that Bertram is entitled
to qualified immunity. (Id.)
C. Plaintiff's Opposition Memorandum of Law
Generally construed, Plaintiff makes five arguments in
opposition to Defendants' motion. First, Plaintiff argues that
he engaged in protected speech by creating an Internet blog
on which he publicly criticized Town officials and exposed
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their illegal activities. (Dkt. No. 65, at 3 [Pl.'s Opp'n Mem.
of Law].)
Second, Plaintiff argues that Town officials took adverse
action against him by issuing noise violations against him
with respect to loud dog barking on his property, retaining
special prosecutors to pursue civil suits and criminal charges
against him, encouraging harassment and extra-judicial
threats against him, and treating him differently from other
residents. (Id. at 4-5.) As a result, Plaintiff argues that he
suffered a chilling effect on his blogging as well as monetary
damages due to the expense required to oppose the Town's
retaliatory activities. (Id. at 6-8.)
Third, Plaintiff argues that the timing of these adverse actions,
i.e., that they began after he created his blog, establishes
the causal connection between his protected speech and the
adverse actions. (Id. at 5.)
Fourth, Plaintiff argues that Bertram is not entitled to qualified
immunity because it was not objectively reasonable to believe
that her actions did not violate Plaintiff's First Amendment
rights. (Id. at 5-6.) According to Plaintiff, these actions
consisted of (1) threatening to fire the Town's Dog Control
Officer if he did not serve Plaintiff with a criminal charge
related to dog barking, and (2) retaining special prosecutors
to pursue this charge against Plaintiff without first obtaining
the Town's approval. (Id. at 9.)
Fifth, Plaintiff argues that municipal liability extends to
the Town because of the actions of Bertram, the Town's
supervisor, and her position as a policymaker. (Id. at 8-9.)
Finally, the Court notes that Plaintiff spends considerable
time in his opposition papers arguing the merits of issues not
raised by Defendants in their motion. For example, Plaintiff
discusses the Town's denial of his FOIL requests, the Town's
failure to respond appropriately to alleged vandalism of his
property, and the sufficiency of the evidence that led to the
issuance of noise violations related to dog barking. (See
generally id., at 3-4, 6-9; Dkt. No. 67, ¶¶ 4, 14, 25, 27, 36,
56-107 [Pl.'s Decl.].)
D. Defendants' Reply Memorandum of Law
In reply to Plaintiff's opposition memorandum of law,
Defendants make two arguments. First, Defendants argue
that, because Plaintiff has not complied with Local Rule 7.1(a)
(3) in his response to their statement of material facts, their
statement of material facts should be deemed admitted. (Dkt.
No. 74, at 2-6 [Defs.' Reply Mem. of Law].)
*3 Second, Defendants argue that the record is devoid of any
admissible evidence that Bertram was personally involved in
an alleged deprivation of fire protection services with regard
to Plaintiff's residence. (Id. at 6-7.) Furthermore, Defendants
argue that Plaintiff cannot demonstrate that any adverse action
was taken because he was never actually deprived of fire
protection services and his subjective belief that the fire
department may not respond to a fire at his residence is
insufficient to create a genuine dispute of fact. (Id. at 7-8.)
E. Statement of Material Facts
1. Plaintiff's Failure to Comply
with N.D.N.Y. Local Rule 7.1
Before reciting the material facts of this case, the Court
must address Plaintiff's response to Defendant's Rule 7.1
Statement of Material Facts. Local Rule 7.1(a)(3) of the Local
Rules of Practice for this Court requires a party moving for
summary judgment to submit a statement of material facts
supported by specific citations to the record where those facts
are established. N.D.N.Y. L.R. 7.1(a)(3). The non-moving
party's subsequent response must mirror the moving party's
statement of material facts by (1) admitting and/or denying
each of the moving party's factual assertions in matching
numbered paragraphs and (2) supporting any denials with
specific citations to the record where the factual issues
arise. Id. Importantly, “[t]he Court shall deem admitted any
properly supported facts set forth in the [moving party's]
Statement of Material Facts that the [non-moving] party does
not specifically controvert.” Id.
This Court's “Local Rule requirements are not empty
formalities.” Bombard v. Gen. Motors Corp., 238 F. Supp.
2d 464, 467 (N.D.N.Y. 2002) (Munson, J.) (stating that
“[t]he courts of the Northern District have adhered to a strict
application of Local Rule 7.1[a][3]'s requirement on summary
judgment motions”); accord, Cross v. Potter, 09-CV-1293,
2013 WL 1149525, at *3 (N.D.N.Y. Mar. 19, 2013) (McAvoy,
J.). Indeed, the underlying purpose of this rule “is to assist
the court in framing the issues and determining whether
there exist any triable issues of fact that would preclude the
entry of summary judgment.” Youngblood v. Glasser, 10-
CV-1430, 2012 WL 4051846, at *4 (N.D.N.Y. Aug. 22, 2012)
(Peebles, M.J.); see also N.Y. Teamsters Conference Pension
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& Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d
Cir. 2005) (noting that “Rules governing summary judgment
practice are essential tools for district courts, permitting them
to efficiently decide summary judgment motions by relieving
them of the onerous task of 'hunt[ing] through voluminous
records without guidance from the parties'”) (quoting Holtz v.
Rockefeller & Co., 258 F.3d 62, 74 [2d Cir. 2001]).
In the present case, Plaintiff has failed to respond
appropriately to Defendants' Rule 7.1 Statement of Material
Facts. Specifically, Plaintiff has failed to admit and/or deny
each of Defendants' factual assertions in matching numbered
paragraphs. Indeed, Defendants' Rule 7.1 Statement contains
71 paragraphs of factual assertions, while Plaintiff's 7.1
Response contains only 11 paragraphs. (Compare Dkt. No.
62 [Defs.' Rule 7.1 Statement] with Dkt. No. 66 [Pl.'s Rule
7.1 Response].) Moreover, many of Plaintiff's responses
are conclusory in nature and/or contain legal arguments.
The Court notes that, when he responded to Defendants'
motion, Plaintiff was represented by counsel. Accordingly,
the Court will accept the factual assertions in Defendants'
7.1 Statement as true to the extent that the evidence in the
record supports these facts. See Davis v. Cumberland Farms,
Inc., 10-CV-0480, 2013 WL 375477, at *4 (N.D.N.Y. Jan.
29, 2013) (Scullin, J.) (accepting the defendant's statement
of material facts as true where plaintiff neither admitted nor
denied defendant's factual assertions); Aktas v. JMC Dev. Co.,
Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D'Agostino,
J.) (accepting the third-party defendants' statement of material
facts as true because the defendant/third-party plaintiff failed
to respond to it in accordance with Local Rule 7.1[a][3] ).
2. Undisputed Material Facts
*4 For purposes of this motion, the undisputed material
facts are as follows. Gerald Ennis has served as the Zoning
Enforcement Officer for the Town of Stuyvesant continuously
since 2003. (Dkt. No. 62, ¶ 43 [Defs.' Rule 7.1 Statement].)
In this capacity, Mr. Ennis issued Plaintiff a Class 2 Home
Occupation Permit in August, 2009. (Id., ¶ 44.) Under
this permit, “[n]o unusual appearances, noise, vibration,
smoke, dust, odors, heat, glare or electrical disturbances
that exceed those normally produced by a resident shall
be permitted.” (Id., ¶ 45.) Following the issuance of this
permit, Mr. Ennis received numerous noise complaints from
Plaintiff's neighbors in regard to increasingly loud barking
from dogs on Plaintiff's property. (Id., ¶¶ 46-47.) Following an
investigation into these complaints, Mr. Ennis concluded that
Plaintiff's “home dog kennel which housed up to 50 dogs at a
time was producing noise levels that exceeded those normally
produced by a resident and, accordingly, [Plaintiff] was in
violation of his Permit.” (Id., ¶ 48.)
On December 7, 2009, Mr. Ennis issued Plaintiff a notice
of violation, which informed Plaintiff that the Town had
received several complaints about the noise coming from
his property and directed Plaintiff to remedy the violation
by December 23, 2009. (Id., ¶ 49.) Subsequently, Plaintiff
contacted Mr. Ennis and requested that his phone number
be given to those who had complained with instructions that
they contact Plaintiff directly when there are noise issues
so he can rectify any problems. (Id., ¶ 50.) However, after
a few months had passed, Plaintiff stopped answering his
neighbors' phone calls; and, as a result, his neighbors made
new complaints to Mr. Ennis. (Id., ¶ 51.) After receiving
these complaints and personally observing the loud noise
emanating from Plaintiff's property, Mr. Ennis issued a second
notice of violation to Plaintiff on April 26, 2010. (Id., ¶¶
52-53.) In response, Plaintiff advised Mr. Ennis that he would
erect a sound barrier to remedy the issue. (Id., ¶ 54.)
According to Mr. Ennis, he waited “some time” for Plaintiff
to erect, or apply for a permit to construct, a sound barrier
but neither action was taken. (Id., ¶¶ 55-56.) After continuing
to receive noise complaints, Mr. Ennis issued a third notice
of violation to Plaintiff on August 9, 2010. (Id., ¶ 56.) On
the same day, Mr. Ennis met with Bertram and the Town
Attorney to discuss the noise issue on Plaintiff's property. (Id.,
¶ 57.) The Town Attorney advised Bertram that Mr. Ennis had
the authority to revoke Plaintiff's home occupation permit if
he determined that Plaintiff was in violation of the permit's
conditions. (Id., ¶ 37.) As a result, Bertram advised Mr. Ennis
that he may revoke Plaintiff's permit if he determined that the
permit's conditions had been violated. (Id., ¶ 38.) Later that
same day (August 9, 2010), Mr. Ennis made the decision to
revoke Plaintiff's permit and notified Plaintiff of that fact. (Id.,
¶¶ 39, 59.) Neither Plaintiff's statements concerning various
issues in the Town nor his postings on various Internet sites
had any bearing on the decision to revoke Plaintiff's permit.
(Id., ¶¶ 40, 61.)
Plaintiff testified at his deposition that the basis for his claim
that he was deprived of fire protection services is that, “in
2011, or perhaps late 2010,” a local fire department chief,
Steve Montie, posted an online statement that Plaintiff should
move out of town. (Id., ¶ 14.) Plaintiff testified that the post
was made in response to one of his earlier posts on a local
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town Internet forum; in Plaintiff's post, he had complained
of alleged ethical violations committed by Bertram. (Id., ¶¶
15-16.) The alleged post by Mr. Montie states in its entirety
as follows:
William,
How much more of this are you going to do ? ? ? ? You
are wasting more tax payer dollars than its worth. Man up
correct your problems and move on, or better yet move
out.
S
(Id., ¶ 19.) The author of this post is not identified by name
but only by the email address stuyvesantchief@fairpoint.net;
and, as indicated above, the post is signed only as “S.” (Id.,
¶ 18.)
*5 Plaintiff testified that the statements in the alleged post
amounted to a threatened denial of fire department services
because “the fire chief told me I should move out of town,
which makes me wonder if there was a fire at my house
would he come.” (Id., ¶ 20.) However, Plaintiff testified that
no one has ever told him that the fire department would not
respond if there was a fire at his house. (Id., ¶ 22.) In addition,
Plaintiff testified that there are two distinct fire departments in
the Town, Stuyvesant Company 1 and Stuyvesant Company
2, which divide their responses to emergency calls in the
Town geographically. (Id., ¶ 23.) Steve Montie is the Chief
of Stuyvesant Company 1 and a different chief controls
Company 2. (Id., ¶ 25.) Plaintiff's property is located in
the geographic area covered by Company 2. (Id., ¶ 24.)
According to Bertram, she did not “in any way direct any fire
department to deprive or threaten to deprive [Plaintiff] of fire
services.” (Id., ¶ 33.)
Finally, Plaintiff testified that there was “never” a time that he
did not publicize or speak out against some issues based upon
any actions by the Town and the alleged efforts to silence him
did not work. (Id., ¶ 26.) In fact, following the alleged actions
by the Town, Plaintiff did more blogging and increased
his “political activities against the Town.” (Id., ¶ 27.) With
respect to his business, Plaintiff testified that, despite losing
his business permit in August, 2010, he continued to operate
his business uninterrupted without a permit as he had before
it was issued in 2009. (Id., ¶ 29.) Accordingly, there was
no interruption to Plaintiff's business as a result of his home
business permit being revoked. (Id., ¶¶ 28, 30.)
II. STANDARD GOVERNING A MOTION FOR
SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted
if “the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of
fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). As a result, “[c]onclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of
fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)
(citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the
Supreme Court has famously explained, “[the non-moving
party] must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86
(1986). As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
In determining whether a genuine issue of material fact
exists, the Court must resolve all ambiguities and draw all
reasonable inferences against the movign party. Anderson,
477 U.S. at 255. In addition, “[the moving party] bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
... [record] which it believes demonstrate[s] the absence of
any genuine issue of material fact.” Celotex v. Catrett, 477
U.S. 317, 323-24 (1986); see also Fed. R. Civ. P. 56(c),
(e). However, when the moving party has met this initial
burden of establishing the absence of any genuine issue
of material fact, the nonmoving party must come forward
with specific facts showing a genuine dispute of material
fact for trial. Fed. R. Civ. P. 56(c), (e). Where the non-
movant fails to deny the factual assertions contained in the
movant's Rule 7.1 Statement of Material Facts in matching
numbered paragraphs supported by a citation to admissible
record evidence (as required by Local Rule 7.1[a][3] of the
Court's Local Rules of Practice), the court may not rely solely
on the movant's Rule 7.1 Statement; rather, the court must be
satisfied that the citations to evidence in the record support
the movant's assertions. See Giannullo v. City of N.Y., 322
F.3d 139, 143, n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment
“would derogate the truth-finding functions of the judicial
process by substituting convenience for facts”).
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III. ANALYSIS
A. Whether Plaintiff Suffered an Adverse Action
*6 After carefully considering the matter, the Court answers
this question in the negative for the reasons set forth in
Defendants' memorandum of law and reply memorandum of
law. (Dkt. No. 61, at 3-8 [Defs.' Mem. of Law]; Dkt. No. 74, at
6-8 [Defs.' Reply Mem. of Law].) To those reasons, the Court
adds the following two points.
As this Court noted in its prior decisions, in order to
state a claim for retaliation under the First Amendment, “a
plaintiff must prove (1) his conduct was protected by the
First Amendment, (2) the defendants' actions were motivated
or substantially caused by the exercise of that right, and
(3) defendants' actions effectively 'chilled' the exercise of
plaintiff's First Amendment right.” Pflaum, 937 F. Supp. 2d
at 303 (citing Dillon v. Morano, 497 F.3d 247, 251 [2d Cir.
2007]). “In cases 'involving criticism of public officials by
private citizens,' the Second Circuit has generally 'impose[d]
an actual chill requirement for First Amendment retaliation
claims[,]' i.e., a requirement that the plaintiff allege and
ultimately prove an 'actual chill' of his First Amendment
rights.” Hafez v. City of Schenectady, 894 F. Supp. 2d 207, 221
(N.D.N.Y. 2012) (D'Agostino, J.) (quoting Gill v. Pidlypchak,
389 F.3d 379, 381 [2d Cir. 2004]). “To establish this element,
it is not enough for the plaintiff simply to show that he
changed his behavior in some way; he must show that the
defendant intended to, and did, prevent or deter him from
exercising his rights under the First Amendment.” Hafez, 894
F. Supp. 2d at 221. “However, 'where the retaliation is alleged
to have caused an injury separate from any chilling effect,
such as a job loss or demotion, an allegation as to a chilling
effect is not necessary to state a claim.'” Id. (quoting Puckett v.
City of Glen Cove, 631 F. Supp. 2d 226, 239 [E.D.N.Y. 2009]);
see also Brink v. Muscente, 11-CV-4306, 2013 WL 5366371,
at *7 (S.D.N.Y. Sept. 25, 2013) (noting that, in private citizen
cases, “various forms of concrete harm have been substituted
for the 'actual chilling' requirement”).
First, it is clear from Plaintiff's deposition testimony that there
was no actual chilling of his protected speech as a result of
Defendants' actions. As discussed above, Plaintiff admitted
that he increased his political activities and continued to
publicize his opinions against the Town in the face of its
alleged efforts to silence him. “Where a party can show no
change in his behavior, he has quite plainly shown no chilling
of his First Amendment right to free speech.” Curley v. Vill.
of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see also Singer v.
Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (finding no
chilling effect where, after an arrest, the plaintiff continued to
publish his newspaper through which he criticized the village
government); Spear v. Town of W. Hartford, 954 F.2d 63,
67 (2d Cir. 1992) (finding no chilling effect where, after the
filing of a lawsuit, the plaintiff continued to write criticizing
editorials in the same manner as before the lawsuit).
Second, to the extent that Plaintiff argues that he perceived
the online post regarding the loss of fire protection as a real
threat, he is still required to show that his perception was
objectively reasonable, i.e., “that the defendant[s'] actions
had some actual, non-speculative chilling effect.” Colombo v.
O'Connell, 310 F.3d 115, 117 (2d Cir. 2002); see also Laird v.
Tatum, 408 U.S. 1, 13-14 (1972) (holding that “[a]llegations
of a subjective 'chill' are not an adequate substitute for a
claim of specific present objective harm or a threat of specific
future harm”). Plaintiff's subjective belief that the online
post constituted a real threat, without more, is insufficient to
demonstrate an actual chilling effect on his First Amendment
rights. Indeed, as discussed above in Point I.E.2. of this
Decision and Order, Plaintiff admitted that no one had told
him that the fire department would not respond if there was
a fire at his house. Moreover, a different fire chief than the
one who allegedly authored the online post is responsible for
responding to fire calls in the location of Plaintiff's residence.
B. Whether There Was a Causal Connection Between
Plaintiff's Speech and Any Adverse Action
*7 After carefully considering the matter, the Court answers
this question in the negative for the reasons set forth below.
To establish the second element of his First Amendment
retaliation claim, “plaintiff must provide specific proof of
defendants' improper motivation with either circumstantial or
direct evidence.” Media All., Inc. v. Mirch, 09-CV-0659, 2011
WL 3328532, at *5 (N.D.N.Y. Aug. 2, 2011) (D'Agostino,
J.) (citing Curley, 285 F.3d at 73). “Circumstantial evidence
includes close temporal proximity between plaintiff's speech
and the alleged retaliatory act.” Mirch, 2011 WL 3328532, at
*5.
“Regardless of the presence of retaliatory motive, however,
a defendant may be entitled to summary judgment if he
can show dual motivation, i.e., that even without the
improper motivation the alleged retaliatory action would have
occurred.” Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir.
2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 [1977]). “Plaintiff has the initial burden
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of showing that an improper motive played a substantial part
in defendant's action. The burden then shifts to defendant to
show it would have taken exactly the same action absent the
improper motive.” Scott, 344 F.3d at 288.
1. Revocation of Plaintiff's Business Permit
In denying Defendants' underlying motion to dismiss
Plaintiff's First Amendment claim, this Court held that
Plaintiff had sufficiently alleged a concrete harm through
the loss of his business permit, and consequently, the loss
of business income, as a result of Defendants' alleged
retaliatory actions. Pflaum, 937 F. Supp. 2d at 308. Having
carefully reviewed the record, the Court finds that Plaintiff
has failed to create a genuine dispute of material fact
regarding Defendants' alleged improper motive. Specifically,
with respect to the revocation of his business permit, the
undisputed facts establish that the Town received complaints
regarding the noise emanating from Plaintiff's property.
Plaintiff was given two 3 noise violations over the course of
approximately one year and ample opportunity to rectify the
problem. (Dkt. No. 67, Attach. 5.) Because the noise problem
and complaints continued, Mr. Ennis revoked Plaintiff's
permit. 4 Even if Plaintiff were able to establish that an
improper motive played a part in this decision, it is clear
to the Court that, under these circumstances, the revocation
would have still occurred. Indeed, Plaintiff challenged the
decision to revoke his permit in appeals made to the Town's
Zoning Board of Appeals and in two actions filed in New
York State Supreme Court. (Dkt. No. 67, Attachs. 1 & 2.)
Although Plaintiff was successful in his state court actions,
those decisions were based, in part, upon the Town's failure to
follow proper procedure, rather than the merits of the Town's
decision. (Id.)
2. Criminal Charges
*8 Plaintiff has also failed to demonstrate an improper
motive with respect to his claim that he received false criminal
charges in retaliation for comments on his website about
corruption among public officials. Plaintiff relies on the
temporal proximity of these charges with a meeting he had
with Bertram and his filing of an Article 78 petition in New
York State Supreme Court. More specifically, Plaintiff argues
that he began an Internet blog on or about January 1, 2011,
and in that blog reported on what he perceived to be the illegal
activities of Town officials. (Dkt. No. 67, ¶ 15 [Pl.'s Decl.].)
For example, on January 1, 2011, Plaintiff wrote about the
alleged inflation of billable time by the Town Attorney that
was spent on work paid for by the Town. (Id. at 65:8-11.)
Around the same time, Plaintiff met with Bertram to discuss
his discovery of specific instances of corruption by public
officials, including the alleged inflation of billable work by
the Town Attorney. (Dkt. No. 59, Attach. 7, at 62:13-15;
64:9-15 [Pl.'s Dep. Tr.].) On January 15, 2011, a few days
after this meeting occurred, Plaintiff was issued a criminal
summons for the offense of “habitual loud barking,” in
violation of N.Y. Local Law § 1. (Id. at 61:19-22; Dkt. No.
68, Attach. 7 [Criminal Summons]; Dkt. No. 67, ¶ 15 [Pl.'s
Decl.].) Plaintiff testified at his deposition that the Town
Attorney went to great lengths to research the Local Law that
he was charged under and assisted one of Plaintiff's neighbors
in drafting an affidavit upon which the criminal summons
was based. (Dkt. No. 59, Attach. 7, at 65:17-21 [Pl.'s Dep.
Tr.]; Dkt. No. 67, ¶ 107 [Pl.'s Decl.].) Plaintiff argues that
he is the first Town resident to be charged under this section
of the Local Law. (Dkt. No. 67, ¶¶ 100, 106 [Pl.'s Decl.].)
Finally, Plaintiff argues that Bertram retained outside counsel
to pursue this charge against him, which was later dismissed.
(Dkt. No. 67, ¶¶ 5, 19, 21 [Pl.'s Decl.]; Dkt. No. 59, Attach.
7, at 57:16-18 [Pl.'s Dep. Tr.].)
Thereafter, in October 2011, Plaintiff filed an Article 78
petition in New York State Supreme Court challenging
the Town's denial of Plaintiff's FOIL requests. (Dkt. No.
59, Attach. 7, at 67:7-12 [Pl.'s Dep. Tr.].) Plaintiff sought
disclosure of the information in the FOIL requests to
substantiate his belief that Town officials were engaging
in illegal activities. (Dkt. No. 67, ¶¶ 43-44 [Pl.'s Decl.].)
One week after commencing that action, Plaintiff received a
second criminal summons for the same offense related to loud
dog barking. (Dkt. No. 68, Attach. 7 [Appearance Ticket];
Dkt. No. 59, Attach. 7, at 56:16-19; 67:7-12 [Pl.'s Dep. Tr.].)
Plaintiff testified that he had “almost no dogs” on his property
in October 2011. (Dkt. No. 59, Attach. 7, at 67:8-10 [Pl.'s Dep.
Tr.].) According to Plaintiff, that charge was neither dismissed
nor withdrawn, but “vanished.” (Id., at 57:19-58:9.)
While Plaintiff's allegations may plausibly suggest that an
improper motive played a role in the charges brought
against him, Defendants have submitted admissible record
evidence that establishes otherwise. (Dkt. No. 59, Attach. 17.)
Specifically, the criminal information in question is signed
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by one of Plaintiff's neighbors, Frederick Platt, and states, in
part, that “my complaint is that the dogs at Glencadia Dog
Camp exhibit ongoing habitual barking/howling at any given
time of day or night. This has been an issue since the Fall of
2009.” (Id.) Furthermore, an affidavit filed by Wes Powell, the
Town's Dog Control Officer, states that he received repeated
complaints from Mr. Platt throughout 2010, culminating in
the noise complaint that served as the basis for the criminal
charge. (Dkt. No. 59, Attach. 16, ¶¶ 3-5 [Powell Aff.].) Mr.
Powell states that the complaint was written by Mr. Platt in
his presence and that no Town official directed Mr. Powell to
serve Plaintiff with the criminal summons. (Id., ¶¶ 7-10.)
*9 Conversely, Plaintiff has not submitted any admissible
record evidence supporting his claim that the Town Attorney
(who is not a party) played any role in the charge being
filed against him or that he is the only resident to have
ever been charged under this section of the Local Law.
Similarly, Plaintiff's contention that the Town pressured Mr.
Platt to file a complaint against him (Dkt. No. 67, ¶ 7[Pl.'s
Decl.] ) is unsubstantiated. While the timing of the charge
may appear suspicious, the Town cannot control when its
residents decide to file a complaint and, in light of the record
evidence demonstrating that there was a preexisting noise
problem on Plaintiff's property, the complaint is unsurprising.
Moreover, the fact that Plaintiff believes the Town shored up
its criminal charge against him is of little, if any, materiality.
Finally, because the second charge seemingly “vanished,” no
documentation or evidence (other than the appearance ticket
itself) has been submitted with respect to that charge. In any
event, because the charge was never prosecuted, Plaintiff
has failed to support his claim that he suffered any harm.
Accordingly, the Court finds that Plaintiff has failed to meet
his burden in demonstrating an improper motive with respect
to this charge.
3. Town Assessor Gleason
Plaintiff claims that Town Assessor Howard Gleason (also not
a party) threatened to raise his property taxes for engaging in
political activities when Mr. Gleason hand delivered a letter to
Plaintiff before a public meeting. (Dkt. No. 69, Attach. 18, at
3 [Letter from Pl. to Gleason]; Dkt. No. 67, ¶ 29 [Pl.'s Decl.].)
The only evidence submitted with respect to this claim is
not the original letter from Mr. Gleason to Plaintiff but letter
correspondence from Plaintiff to Mr. Gleason. (Dkt. No. 69,
Attach. 18, at 3 [Letter from Pl. to Gleason].) Plaintiff's letter
to Mr. Gleason, dated October 5, 2010, states that Plaintiff
interpreted Mr. Gleason's attempt to speak with him about tax
filings before a town hall meeting as threatening in nature
due to the “timing and manner of the interaction.” (Id.)
This is because Plaintiff “had announced [his] intention to
call for a referendum frequently and in many forums prior
to appearing for the meeting.” (Id.) Furthermore, Plaintiff
requested that, in order to “avoid the impression that you
coordinate your tax-related activities with other people in
government in order to intimidate free speech, please do not
present important information to me in such an information
[sic] and unverifiable way.” (Id.)
However, Mr. Gleason's response to Plaintiff's letter suggests
that their interaction was not meant as a threat to
raise Plaintiff's taxes or “was in any way politically
motivated.” (Dkt. No. 69, Attach. 18, at 4 [Letter from Pl.
to Gleason].) More specifically, Mr. Gleason explains that
he needed to re-assess Plaintiff's property in light of the fact
that Plaintiff was now running a kennel (business) on his
property and decided to hand deliver his letter knowing that
Plaintiff would be present for the town hall meeting. (Id.)
Moreover, Mr. Gleason reassured Plaintiff that politics do not
dictate how he performs his job and promised that all future
communication will be transmitted through mail rather than
in-person. (Id.)
Plaintiff has failed to submit any additional evidence with
respect to his tax assessment, that his taxes were improperly
raised or that Mr. Gleason acted with a retaliatory animus. 5
Similarly, no evidence has been submitted to substantiate
Plaintiff's claim that Bertram encouraged Mr. Gleason to use
his authority as Town Assessor to intimidate Plaintiff. In sum,
Plaintiff has wholly failed to satisfy his burden demonstrating
that he suffered harm as a result of any action taken by Mr.
Gleason and that Mr. Gleason acted with an improper motive.
*10 For all of these reasons, the Court finds that Plaintiff
has failed to create a genuine dispute of material fact with
respect to his First Amendment claim. Because the Court has
reached this conclusion, it need not, and does not, consider the
merits of Defendant Bertram's alternative qualified immunity
argument.
ACCORDINGLY, it is
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 59) is GRANTED. The Clerk of the Court is
directed to enter judgment in favor of the Defendants and
close this case.
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All Citations
Not Reported in Fed. Supp., 2016 WL 865296
Footnotes
1 Although Plaintiff is currently proceeding pro se, the Court notes that he had counsel when preparing his
response to Defendant's motion for summary judgment. Accordingly, no need exists to construe Plaintiff's
response with the special solicitude ordinarily afforded to pro se litigants.
2 The Court notes that, while it did not previously (i.e., in its prior decisions) liberally construe Plaintiff's
retaliation claim as arising under three separate theories, it does so now. The Court further notes that it
has the power to address these two additional theories for each of two alternative reasons: (1) because
Defendants moved for dismissal of Plaintiff's retaliation claim in its entirety, Plaintiff has had sufficient notice
and an opportunity to be heard with respect to the two theories in question; and (2) in any event, even if
Plaintiff cannot be said to have had such notice and an opportunity to be heard, he filed his Complaint pro
se and the Court finds the two theories to be so lacking in arguable merit as to be frivolous, see Fitzgerald
v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has
power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has
paid statutory filing fee).
3 As discussed above, Plaintiff was actually given three noise violations. However, because his permit was
revoked on the same day that he received the third violation, the Court will disregard the third violation for
purposes of this analysis.
4 The Court notes that Plaintiff spends considerable time in his opposition papers disputing the sufficiency of the
evidence and procedures that were followed that led to the issuance of noise violations. (See generally Dkt.
No. 67, ¶¶ 56-95 [Pl.'s Decl.].) However, this Court is not the proper forum for that dispute. Furthermore, to
the extent that the New York Supreme Court observed that there appeared “to have been a disproportionate
amount of time and money spent on [the noise violation] notice,” and that the records did not “reveal a real
issue with dog-barking,” those observations are not binding upon this Court. (Dkt. No. 67, Attach. 2, at 6.)
Setting aside the fact that the observations constitute dicta, Defendants have submitted admissible record
evidence demonstrating that Mr. Ennis acted upon complaints made to him by residents of the Town, which
Plaintiff has failed to properly dispute.
5 For example, with regard to this lack of additional evidence regarding retaliatory animus, Plaintiff has failed to
adduce admissible record evidence establishing that, even assuming Mr. Gleason knew of Plaintiff's intent to
engage in protected speech, the so-called “manner of the interaction” by Mr. Gleason (i.e., the hand delivery
of the letter) was in fact unusual for Mr. Gleason given the date of the letter and the date of the public
meeting. Moreover, Plaintiff has failed to adduce admissible record evidence that the so-called “timing ...
of the interaction” is significant, given his rather constant exercise of his First Amendment rights during the
time in question.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Riley v. Cuomo, Not Reported in Fed. Supp. (2018)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 1832929
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Russell RILEY, Plaintiff,
v.
Andrew CUOMO, in his official capacity
as governor of the State of New York,
New York State Police, Defendant(s).
2:17-cv-01631 (ADS)(AYS)
|
Signed 04/16/2018
Attorneys and Law Firms
Christopher Joseph Cassar, 13 East Carver Street,
Huntington, NY 11743, By: Christopher J. Cassar, Esq., Of
Counsel, Attorney for the Plaintiff.
New York State Office of the Attorney General, Nassau
Regional Office, 200 Old Country Road, Suite 240, Mineola,
NY 11501, By: Christina H. Bedell, Assistant Attorney
General, Counsel for the Defendants.
MEMORANDUM OF DECISION & ORDER
ARTHUR D. SPATT, United States District Judge
*1 The Plaintiff Russel Riley (the “Plaintiff”) brought this
federal civil rights action pursuant to 42 U.S.C. § 1983
(“Section 1983”) against the Defendants Andrew Cuomo, in
his official capacity of the Governor of the State of New
York (“Governor Cuomo,” the “Governor,” or “Cuomo”) and
the New York State Police (the “NYSP”) (collectively, the
“Defendants”).
Presently before the Court is a motion by the Defendants
to dismiss the complaint pursuant to Federal Rule of Civil
Procedure (“FED. R. CIV. P.”) 12(b)(1) and 12(b)(6). For the
following reasons, the Defendants' motion is granted in its
entirety.
I. BACKGROUND
A. The Relevant Facts
The following facts are drawn from the Plaintiff’s complaint,
and for the purposes of the instant motion, are presumed to
be true.
The Plaintiff owned and had a valid license for ten firearms.
On January 9, 2017, members of the NYSP entered the
Plaintiff’s home without a warrant and seized ten firearms.
The firearms have not been returned to the Plaintiff, and there
has been no hearing regarding the seizure of the firearms.
The Plaintiff makes broad references to the New York Secure
Ammunition and Firearms Enforcement Act of 2013 (the
“NY SAFE Act”), but does not explicitly state that his
firearms were confiscated as a result of that statute.
B. The Relevant Procedural History
On March 23, 2017, the Plaintiff filed his complaint. The
complaint alleges that the NY SAFE Act is unconstitutional
under the Fourth and Fourteenth Amendments to the United
States Constitution in that it fails to provide gun owners who
have had their firearms seized with a hearing. However, the
Plaintiff does not seek a declaratory judgment declaring that
the NY SAFE Act is unconstitutional. Furthermore, as stated
above, he does not explicitly state that his guns were seized
because of that statute; or, if they were, how that statute
caused his firearms to be seized.
The complaint alleges that the Plaintiff’s Fourth, Fifth,
and Fourteenth Amendment rights were violated when the
Defendants seized his firearms without a warrant; failed to
provide him with a hearing; and illegally obtained statements
from him. In those ways, the Defendants allegedly violated
Section 1983.
The Plaintiff seeks declaratory relief in the form of an
order stating that the Defendants violated his constitutional
rights. He asks that the Court order that the firearms be
returned to him. Further, he seeks “a judgment ... requiring the
Defendants to conduct a prompt hearing following the seizure
of the property in all cases at which time the Defendants must
demonstrate probable cause for the seizure of the property and
that it was necessary that the property remain in the custody
of the Defendants.” (Compl. Wherefore Clause ¶ 3).
The Plaintiff seeks injunctive and declaratory relief; and
a judgment requiring the Defendants to provide notice
and a hearing to any future victims of seizures similar to
the one experienced by the Plaintiff. The complaint does
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not explicitly seek damages, but only reasonable attorneys'
fees and costs. While the Court notes that the Plaintiff’s
memorandum in opposition to the motion to dismiss states
that “the underlying complaint is not exclusively seeking an
award of damages under § 1983,” (Pl.'s Mem. in Opp. to
Mot. to Dismiss at 4), a plaintiff is not permitted to amend
his complaint by virtue of what is said in a memorandum
of law, Uddoh v. United Healthcare, 254 F. Supp. 3d 424,
429 (E.D.N.Y. 2017) (“A plaintiff, however, is not permitted
to interpose new factual allegations or a new legal theory
in opposing a motion to dismiss....” (citing Wright v. Ernst
& Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) ) ). The
complaint does not explicitly seek damages, and the Court
cannot construe it otherwise.
*2 On September 25, 2017, the Defendants filed the instant
motion to dismiss the complaint for lack of jurisdiction
pursuant to Rule 12(b)(1), and for failure to state a claim
pursuant to Rule 12(b)(6).
II. DISCUSSION
A. As to the Defendants' Motion to Dismiss Based on
Sovereign Immunity
The Defendants have moved for dismissal based on sovereign
immunity pursuant to Rule 12(b)(1).
As an initial matter, the Court first observes that within
the Second Circuit, the question of whether a motion to
dismiss made on sovereign immunity grounds should be
reviewed under Rule 12(b)(1) or under Rule 12(b)(6) remains
unresolved. See Carver v. Nassau Cty. Interim Fin. Auth.,
730 F.3d 150, 156 (2d Cir. 2013) (“[W]hether the claim of
sovereign immunity constitutes a true issue of subject matter
jurisdiction or is more appropriately viewed as an affirmative
defense is an open question in the Supreme Court and the
Second Circuit.” (citing Wisc. Dep't of Corr. v. Schacht, 524
U.S. 381, 391, 118 S. Ct. 2047, 141 L.Ed. 2d 364 (1998)
) ); see also Garcia v. Paylock, 13-CV-2868 KAM, 2014
WL 298593, at *2 n.3 (E.D.N.Y. Jan. 28, 2014) (“It is an
open question in the Second Circuit whether the claims of
sovereign immunity should be viewed as raising a question of
subject matter jurisdiction, and thus be evaluated under *339
Rule 12(b)(1), or as an affirmative defense analyzed under
Rule 12(b)(6).”).
This “distinction is significant,” because “while [a district
court] must accept all factual allegations in a complaint as
true when adjudicating a motion to dismiss under FED. R.
CIV. P. 12(b)(6), ... in adjudicating a motion to dismiss
for lack of subject-matter jurisdiction [pursuant to FED. R.
CIV. P. 12(b)(1) ], a district court may resolve disputed
factual issues by reference to evidence outside the pleadings,
including affidavits.” State Employees Bargaining Agent
Coal. v. Rowland, 494 F.3d 71, 77 (2d Cir. 2007) (internal
citations omitted). As such, in accordance with the approach
taken by other district courts within this Circuit, the Court
will apply the stricter standard set under Rule 12(b)(6) while
analyzing Defendants' sovereign immunity arguments. See
Tiraco v. New York State Bd. of Elections, 963 F. Supp. 2d
184, 191 n.6 (E.D.N.Y. 2013) (noting that “[t]his distinction
[ ] does not alter the outcome” of the case because “the
court [ ] considered only the pleadings and the relevant
state and federal law and [drew] all inferences in Plaintiff’s
favor”) (citations omitted); McMillan v. N.Y. State Bd. of
Elections, No. 10-CV-2502 (JG)(VVP), 2010 WL 4065434,
at *3 (E.D.N.Y. Oct. 15, 2010) (looking “only to the pleadings
and to state and federal law” to resolve questions regarding
sovereign immunity).
1. The Rule 12(b)(6) Standard
In reviewing a motion to dismiss pursuant to Rule 12(b)(6),
the Court must accept the factual allegations set forth in the
complaint as true and draw all reasonable inferences in favor
of the Plaintiff. See Walker v. Schult, 717 F.3d 119, 124 (2d
Cir. 2013); Cleveland v. Caplaw Enters., 448 F.3d 518, 521
(2d Cir. 2006); Bold Electric, Inc. v. City of New York, 53
F.3d 465, 469 (2d Cir. 1995); Reed v. Garden City Union Free
School Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y. 2013).
*3 Under the now well-established Twombly standard, a
complaint should be dismissed only if it does not contain
enough allegations of fact to state a claim for relief that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007). The
Second Circuit has explained that, after Twombly, the Court’s
inquiry under Rule 12(b)(6) is guided by two principles:
First, although a court must accept as
true all of the allegations contained in
a complaint, that tenet is inapplicable
to legal conclusions, and [t]hreadbare
recitals of the elements of a cause of
action, supported by mere conclusory
statements, do not suffice. Second,
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only a complaint that states a plausible
claim for relief survives a motion to
dismiss and [d]etermining whether a
complaint states a plausible claim for
relief will ... be a context-specific task
that requires the reviewing court to
draw on its judicial experience and
common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 1940,
173 L.Ed. 2d 868 (2009) ).
Thus, “[w]hen there are well-pleaded factual allegations, a
court should assume their veracity and ... determine whether
they plausibly give rise to an entitlement of relief.” Iqbal, 556
U.S. at 679.
B. The Eleventh Amendment
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.” Rowland,
494 F.3d at 95 (quoting U.S. CONST. AMEND. XI). The
Eleventh Amendment bars federal courts from exercising
subject matter jurisdiction over claims against states absent
their consent to such a suit or an express statutory waiver of
immunity. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 90-100, 104 S. Ct. 900, 79 L.Ed. 2d 67 (1984);
see also Huminski v. Corsones, 386 F.3d 116, 133 (2d Cir.
2004). Although the plaintiff generally bears the burden
of proving subject matter jurisdiction, the entity claiming
Eleventh Amendment immunity bears the burden to prove
such. See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of
Educ., 466 F.3d 232, 237 (2d Cir. 2006).
Section 1983 imposes liability for “conduct which ‘subjects,
or causes to be subjected’ the complainant to a deprivation of
a right secured by the Constitution and laws.” Rizzo v. Goode,
423 U.S. 362, 370-71, 96 S. Ct. 598, 46 L.Ed. 2d 561 (1976)
(quoting 42 U.S.C. § 1983). It is well-settled that states are
not “persons” under section 1983 and, therefore, Eleventh
Amendment immunity is not abrogated by that statute. See
Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct.
2304, 105 L.Ed. 2d 45 (1989).
1. Claims Against State Administrative Agencies
Regardless of the type of relief sought, the Eleventh
Amendment bars this Court from assuming jurisdiction over
plaintiffs' claims asserted against the State of New York
and its agencies. When the state or one of its “arms” is
the defendant, sovereign immunity bars federal courts from
entertaining lawsuits against them “regardless of the nature of
the relief sought.” Pennhurst, 465 U.S. at 100.
a. Application to the Plaintiff’s
Claims Against the NYSP
*4 As the Eleventh Amendment bars all suits against
administrative agencies of a state, the Plaintiff’s claims
against the NYSP cannot be sustained. Defendant New York
State Police is a division in the executive department of
New York—see section 210 of New York’s Executive Law—
and is therefore immune from all claims, both federal and
state. Congress has not overridden states' sovereign immunity
respecting constitutional claims brought under 42 U.S.C. §
1983. Will, 491 U.S. at 109. And it is well established that
“New York State has not waived its sovereign immunity from
Section 1983 claims.” Nolan v. Cuomo, No. 11 CV 5827
(DRH)(AKT), 2013 WL 168674, at *7 (E.D.N.Y. Jan. 16,
2013) (citing Trotman v. Palisades Interstate Park Comm'n,
557 F.2d 35, 39-40 (2d Cir. 1977) ); see also Mamot v. Bd.
of Regents, 367 Fed.Appx. 191, 192 (2d Cir. 2010) (summary
order); Dube v. State Univ. of New York, 900 F.2d 587,
594-95 (2d Cir. 1990) (holding that the Eleventh Amendment
precludes an action under Section 1983 against SUNY, an
integral part of the State of New York). Therefore, the NYSP
is entitled to sovereign immunity on the Plaintiff’s claims.
Accordingly, the Defendants' motion to dismiss the Plaintiff’s
claims against the NYSP is granted.
2. Claims Against State Officials in Their Official
Capacity
A suit for damages against a state official in his or her
official capacity “is deemed to be a suit against the state,
and the official is entitled to invoke the Eleventh Amendment
immunity belonging to the state.” Ying Jing Gan v. City
of New York, 996 F.2d 522, 529 (2d Cir. 1993); see also
Will, 491 U.S. at 71; Ford v. Reynolds, 316 F.3d 351, 354
(2d Cir. 2003). However, “the applicability of the Eleventh
Amendment bar [to suits against individuals in their official
capacities] depends on the form of relief sought.” Lee v.
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Dep't of Children & Families, 939 F.Supp.2d 160, 165-66 (D.
Conn. 2013). Money damages cannot be recovered from state
officers sued in their official capacities. See e.g., Will, 491
U.S. at 71 (“[A] suit against a state official in his or her official
capacity is not a suit against an official but rather is a suit
against the official’s office.”); Edelman v. Jordan, 415 U.S.
651, 663, 94 S. Ct. 1347, 39 L.Ed. 2d 662 (1974) (“[A] suit
by private parties seeking to impose a liability which must be
paid from public funds in the state treasury is barred by the
Eleventh Amendment.”); Goonewardena v. New York, 475 F.
Supp. 2d 310, 329 (S.D.N.Y. 2007) (“[S]overeign immunity
also extends to bar claims for monetary damages brought
against state officers sued under section 1983 in their official
capacities.”).
Similarly, “judgments against state officers declaring that
they violated federal law in the past” are also not permitted.
Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy,
506 U.S. 139, 146, 113 S. Ct. 684, 121 L.Ed. 2d 605 (1993)
(citing Green v. Mansour, 474 U.S. 64, 73, 106 S. Ct. 423, 88
L.Ed. 2d 371 (1985) ). However, prospective injunctive relief
is available against individuals being sued in their official
capacities in order to correct an ongoing violation of federal
law. See Edelman, 415 U.S. at 663; Ex Parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714 (1908). In this regard,
through the doctrine of Ex Parte Young, a party may bring
“a suit for injunctive [or declaratory] relief challenging the
constitutionality of a state official’s actions in enforcing state
law.” CSX Transp., Inc. v. N.Y. State Office of Real Prop.
Servs., 306 F.3d 87, 98 (2d Cir. 2002) (internal quotation
marks and alteration omitted); see also Arthur v. Nyquist, 573
F.2d 134, 138 (2d Cir. 1978).
In order to determine whether the Ex parte Young exception
allows the Plaintiff to bring suit against state officials, this
Court must first determine whether the complaint alleges an
ongoing violation of federal law and second, whether the
Plaintiff seeks relief properly characterized as prospective.
See Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S.
635, 645, 122 S. Ct. 1753, 152 L.Ed. 2d 871 (2002). “[T]o
successfully avoid the Eleventh Amendment bar, a plaintiff
must prove that a defendant’s violation of federal law is of
an ongoing nature as opposed to a case ‘in which federal law
has been violated at one time or another over a period of time
in the past.’ ” Papasan v. Allain, 478 U.S. 265, 277-78, 106
S. Ct. 2932, 92 L.Ed. 2d 209 (1986) (quotation omitted). The
inquiry for determining whether an “ongoing violation” exists
is, “does the enforcement of the law amount to a continuous
violation of plaintiffs constitutional rights or a single act that
continues to have negative consequences for plaintiffs.” New
Jersey Educ. Ass'n v. New Jersey, No. 11-5024, 2012 WL
715284, at *4 (D.N.J. Mar. 5, 2012).
*5 Furthermore, when a plaintiff seeks prospective relief
against a state official in their official capacity where the
plaintiff alleges that a particular statute is unconstitutional,
“the state officer ... ‘must have some connection with the
enforcement of the act’ ” that includes “both a particular
duty to enforce the statute in question and a demonstrated
willingness to exercise that duty.” Kelly v. New York State
Civil Serv. Comm'n, No. 14 CV 716 VB, 2015 WL 861744,
at *3 (S.D.N.Y. Jan. 26, 2015) (quoting Ex Parte Young, 209
U.S. at 157), aff'd sub nom. Kelly v. New York Civil Serv.
Comm'n, 632 Fed.Appx. 17 (2d Cir. 2016); see also CSX
Transp., 306 F.3d at 99 (amenability to suit under Eleventh
Amendment requires “both the power and the duty” to take
challenged action).
a. Application to the Plaintiff’s Claims Against
Governor Cuomo in His Official Capacity
As stated above, the complaint does not explicitly seek
damages. However, even if it did, the Plaintiff would be
unable to seek that relief against Governor Cuomo in his
official capacity. Ying Jing Gan, 996 F.2d at 529 (“To the
extent that a state official is sued for damages in his 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.” (internal
citations omitted) ).
As to his requests for declaratory and injunctive relief,
the Court finds that the Plaintiff does not explicitly seek
prospective relief. Instead, he seeks a declaration that the
Defendants violated federal law in the past, and a return of
his firearms. Courts have held that neither of these types
of relief are prospective. See Puerto Rico Aqueduct and
Sewer, 506 U.S. at 146 (stating that “judgments against state
officers declaring that they violated federal law in the past”
are not permitted under the Ex Parte Young doctrine); Dotson
v. Griesa, 398 F.3d 156, 177 n.16 (2d Cir. 2005) (holding
that Second Circuit precedent “preclude[s] a federal court
from ordering affirmative action by either the state or federal
government employees in their official capacities”); Nat'l
R.R. Passenger Corp. v. McDonald, 978 F. Supp. 2d 215,
233 (S.D.N.Y. 2013) (“[C]ourts in this Circuit have [held] ...
that the return of property taken by the state is barred by the
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Eleventh Amendment because that constitutes ‘retrospective’
relief.” (collecting cases) ), aff'd, 779 F.3d 97 (2d Cir. 2015);
Dean v. Abrams, No. 94 CIV. 3704 (LAK), 1995 WL 791966,
at *2 n.5 (S.D.N.Y. Dec. 26, 1995) (“The only exception
to the Eleventh Amendment’s protection is for ‘prospective
injunctive relief,’ but Dean’s demand for ... the return of
her property does not qualify for this exception.” (collecting
cases) ).
While the Plaintiff does ask for an order declaring that the
Defendants must afford any future victims of such seizures a
prompt and fair hearing, the Plaintiff has not plead sufficient
facts to demonstrate that he has standing to request such relief.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 185, 120 S. Ct. 693, 706, 145 L.Ed. 2d 610
(2000) (“[A] plaintiff must demonstrate standing separately
for each form of relief sought.”)
“In seeking prospective relief like an injunction, a plaintiff
must show that he can reasonably expect to encounter the
same injury again in the future—otherwise there is no
remedial benefit that he can derive from such judicial decree.”
MacIssac v. Town of Poughkeepsie, 770 F. Supp. 2d 587, 593
(S.D.N.Y. 2011) (citing City of Los Angeles v. Lyons, 461 U.S.
95, 103 S. Ct. 1660, 75 L.Ed. 2d 675 (1983) ). A plaintiff
cannot seek injunctive relief merely for past injury. O'Shea,
414 U.S. at 495-96, 94 S. Ct. 669; Deshawn E. by Charlotte E.
v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). Instead, “the injury
alleged must be capable of being redressed through injunctive
relief ‘at that moment.’ ” Robidoux v. Celani, 987 F.2d 931,
938 (2d Cir. 1993) (quoting Cty. of Riverside v. McLaughlin,
500 U.S. 44, 51, 111 S. Ct. 1661, 114 L.Ed. 2d 49 (1991) ).
*6 Here, the Plaintiff does not allege that his guns will
again be seized in the future. Indeed, as stated above, the
Plaintiff did not state why his guns were seized. He does not
plead sufficient facts to demonstrate standing to seek an order
forcing the state to afford any future victims of seizures a
prompt and fair hearing because he has not alleged that he will
be a victim of such a seizure in the future.
Therefore, the Plaintiff does not seek prospective relief for an
ongoing violation of federal law, and cannot avail himself of
the Ex Parte Young doctrine. Governor Cuomo therefore has
sovereign immunity with regard to the Plaintiff’s claims.
The Plaintiff contends that he should be permitted to proceed
on his theory of supervisory liability until he is able, through
discovery, to determine which subordinate officials should
be added to the complaint. This argument is completely
unavailing.
First, “[a] defendant’s supervisory authority is insufficient
in itself to demonstrate liability under § 1983.” LaMagna
v. Brown, 474 Fed.Appx. 788, 789 (2d Cir. 2012) (citing
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)
); Richardson, 347 F.3d at 435 (“[M]ere linkage in the
prison chain of command is insufficient to implicate a state
commissioner of corrections or a prison superintendent in
a § 1983 claim.” (citations and internal quotation marks
omitted) ). Instead, “to establish a defendant’s individual
liability in a suit brought under § 1983, a plaintiff must show,
inter alia, the defendant’s personal involvement in the alleged
constitutional deprivation.” Grullon v. City of New Haven,
720 F.3d 133, 138 (2d Cir. 2013) (collecting cases). As the
Second Circuit has stated, a supervisory defendant’s personal
involvement can be shown by evidence 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 to
the rights of [the plaintiff] by failing
to act on information indicating that
unconstitutional acts were occurring.
Id. at 139 (emphasis omitted) (quoting Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995) ).
Accordingly, “supervisory liability may be imposed when an
official has actual or constructive notice of unconstitutional
practices and demonstrates ‘gross negligence’ or ‘deliberate
indifference’ by failing to act.” Meriwether v. Coughlin, 879
F.2d 1037, 1048 (2d Cir. 1989) (quoting McCann v. Coughlin,
698 F.2d 112, 125 (2d Cir. 1983) ). The Plaintiff does not
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allege that any of the above factual circumstances are present
here.
Second, the Plaintiff does not even allege that the Governor
supervises the NYSP. Indeed, the complaint does not contain
any allegations that are specific to Governor Cuomo.
Furthermore, as to the Plaintiff’s argument that he should
be permitted to maintain suit against Governor Cuomo until
he has been afforded an opportunity to identify subordinate
officials who have personal liability, the Plaintiff does not
meet that “exception” to the supervisory liability rule here.
The case cited by the Plaintiff for this very proposition
held “[p]ermitting plaintiffs to use discovery as a fishing
expedition undermines the principle that only portions of a
complaint which satisfy a plausibility standard, i.e., more than
possible and less than probable, should unlock the doors of
discovery.” Dudek v. Nassau Cty. Sheriff’s Dep't, 991 F. Supp.
2d 402, 414 (E.D.N.Y. 2013) (internal citations and quotation
marks omitted).
*7 The Dudek court relied on the fact that the complaint
failed to contain a single factual allegation that any of
the supervisory defendant’s subordinates were personally
involved in the action. Here too, the Plaintiff does not allege
that Governor Cuomo supervises members of the NYSP, nor
does he allege any specific acts by any individual John Doe
officers of the NYSP. Nor would the Plaintiff be permitted
to avail himself of the exception allowing discovery to
go forward where a litigant raises colorable claims against
supervisors because that exception only applies to pro se
litigants. See Davis v. Kelly, 160 F.3d 917, 922 (2d Cir.
1998) (“We therefore hold that when a pro se plaintiff brings
a colorable claim against supervisory personnel, and those
supervisory personnel respond with a dispositive motion
grounded in the plaintiff’s failure to identify the individuals
who were personally involved, under circumstances in which
the plaintiff would not be expected to have that knowledge,
dismissal should not occur without an opportunity for
additional discovery.”); Soto v. Brooklyn Corr. Facility, 80
F.3d 34, 34 (2d Cir. 1996) (holding that where a pro se litigant
mistakenly failed to name the individual corrections officers
who might be liable, the pro se plaintiff would be afforded
opportunity to amend his complaint after discovery); Satchell
v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984) (same).
Finally, the Plaintiff is also unable to bring claims against
Governor Cuomo based on his allegation that the NY
SAFE Act is unconstitutional. The Court notes again that
the Plaintiff does not seek an order stating that the NY
SAFE Act is unconstitutional. He instead alleges that it is
unconstitutional, and seeks an order requiring the Defendants
to afford victims of gun seizures fair hearings.
In any event, the Plaintiff has not alleged that the Governor
has any duty to enforce the NY SAFE Act. Nor does N.Y.
PENAL LAW § 400, the only specific statute cited by the
Plaintiff, afford any duty or power to the Governor. To the
extent that the Plaintiff relies on the fact that the NY SAFE
Act was signed by Governor Cuomo, which the Court notes
that he did not allege, “[t]he well-settled doctrine of absolute
legislative immunity ... bars actions against legislators or
governors ... on the basis of their roles in enacting or
signing legislation.” Warden v. Pataki, 35 F.Supp.2d 354, 358
(S.D.N.Y. 1999), aff'd sub nom. Chan v. Pataki, 201 F.3d 430
(2d Cir. 1999). Furthermore, “the vast majority of courts ...
have held ... that a state official’s duty to execute the laws is
not enough by itself to make that official a proper party in a
suit challenging a state statute.” Warden, 35 F. Supp. 2d at 359.
Therefore, the Plaintiff has failed to allege that Governor
Cuomo has the power or duty to take action regarding the NY
SAFE Act, and the Governor has sovereign immunity over
those claims.
Accordingly, the Defendants' motion to dismiss the Plaintiff’s
claims against Governor Cuomo is granted.
III. CONCLUSION
For the reasons stated above, the Defendants' motion to
dismiss the complaint based on sovereign immunity is granted
in its entirety. The Clerk of the Court is respectfully directed
to close the case.
It is SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1832929
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Rodriquez-Coss v. Sessions, Not Reported in Fed. Supp. (2018)
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2018 WL 3213290
United States District Court, D. Connecticut.
Jacabed RODRIQUEZ-COSS, Plaintiff
v.
Jeff B. SESSIONS, Attorney General, United
States Department of Justice, Defendant
CIVIL ACTION NO.: 3:16-cv-00633-VLB
|
Signed 06/29/2018
Attorneys and Law Firms
Bill L. Gouveia, Bridgeport, CT, Kevin Gerard Little, Law
Office of Kevin G. Little, Fresno, CA, for Plaintiff.
Jordan M. Anger, U.S. Attorney's Office, Newark, NJ, for
Defendant.
MEMORANDUM OF DECISION
GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT [DKT. 35]
Hon. Vanessa L. Bryant, United States District Judge
*1 Plaintiff Jacabed Rodriquez-Coss (“Plaintiff” or
“Rodriquez-Coss”) brings this action raising claims of
retaliation and sex discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and
discrimination due to perceived or actual disability under the
Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., arising
from her employment at the Department of Justice. Defendant
moves for summary judgment pursuant to Federal Rule of
Civil Procedure 56. [Dkt. 35]. For the reasons that follow, the
Court GRANTS Defendant's motion.
Background
The following facts are taken from the Local Rule 56
statements of material facts and evidence cited by the parties,
and they are read in the light most favorable to the non-
movant. In 2008, Rodriquez-Coss joined the Department of
Justice's Criminal Division, as an attorney in the Capital Case
Unit (“CCU”) in Washington D.C. [Dkt. 35-2 (D. Conn Civ.
L. R. 56(a)(1) Stmt.) ¶ 1; Dkt. 47 (D. Conn. Civ. L. R. 56(a)
(2) Stmt.) ¶ 1]. 1 Initially, when Rodriquez-Coss first joined
the CCU, members of the CCU were not required to travel to
the regional United States Attorney Offices (“USAO”). [Dkt.
46-2, Ex. B (Rodriquez-Coss Dep.) at 40:8–11]. One of the
primary reasons that Rodriquez-Coss accepted the position at
the CCU was the promise from the previous chief of the CCU
that there was no travel requirement. Id. at 23:6–9.
In 2010, Kevin Carwile became Chief of both the CCU and
the Capital Case Section (“CCS”). [Dkt. 46-5, Ex. E (Carwile
Dep.) at 166:1–167:14]. Carwile expanded the unit's mission
to include the active litigation of cases with the local USAOs.
Id. This expansion meant attorneys in the unit were required to
travel to the venues where their assigned cases were pending.
In the months following this meeting, Rodriquez-Coss's
husband accepted a job in Connecticut, leading Rodriquez-
Coss to resign from her position at the CCS. [Dkt. 46-2
at 53:3–9]. A week before her employment ended with the
CCS, Gwynn “Charlie” Kinsey, the Deputy Chief of the
CCS, offered Rodriquez-Coss the opportunity to continue
working with the CCS remotely on a capital case pending in
Connecticut, United States v. Aquart, which was then pending
in Connecticut. Id. at 53:10–16. Rodriquez-Coss accepted
and signed her first Flexiplace Agreement on November 8,
2010, which enabled her to work remotely for the CCU
from the USAO in Bridgeport, Connecticut. [Dkt. 35-4, Ex.
D (Flexiplace Agreements) at 71 of PDF]. The term of
this agreement lasted until February 28, 2011. Id. As the
agreement detailed, “[d]uring the period of this arrangement,
the employee will be assigned to assist in the pretrial
preparation of U.S. v. Azibo Aquart, et al. ... as well as conduct
case review and policy work as assigned by CCU. At the end
of the agreement period, the Chief of the Capital Case Unit
will evaluate if extension is warranted, and a new agreement
will be required if extension is granted.” Id. Rodriquez-Coss
initially believed that this assignment was only a temporary
measure until she was able to find other employment in
Connecticut. [Dkt. 46-2 at 29:21–25].
*2 After the Aquart trial concluded in July 2011, Carwile
contacted Rodriquez-Coss to inform her that she could
continue working for the CCS from Connecticut based on
continually updated Flexiplace Agreements. Id. at 29:16–
30:2; [Dkt. 35-2 ¶ 5; Dkt. 47 ¶ 5]. Thereafter, until February
2014, Rodriquez-Coss worked for the CCS in Connecticut
under Flexiplace Agreements of varying duration on cases
pending in New England primarily. [Dkt. 35-2 ¶ 5; Dkt. 47
¶ 5].
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After the conclusion of the Aquart trial, during the summer
of 2011, Rodriquez-Coss was assigned to litigate a § 2255
habeas case, United States v. Fell, in Vermont. [Dkt. 35-2 ¶ 8;
Dkt. 47 ¶ 8; Dkt. 35-5, Ex. Q (Email 1/6/14) ].
Months later, near the end of 2011 or at the beginning
of 2012, Rodriquez-Coss was assigned an additional case,
United States v. Stone, pending before the Eastern District
of California in Fresno. [Dkt. 46-2 at 58:21–59:3]. When
Rodriquez-Coss received this assignment, she immediately
called Carwile to inform him that it would be very difficult
for her to litigate the case, since it would require her to
be away from her family for three to four months at a
time. Id. at 82:9–17. Rodriquez-Coss did not resign from
her position and proceeded to litigate the case; however,
she continually requested a reassignment, and even proposed
alternative solutions, so that she could assist with the case
without acting as the lead prosecutor. Id. at 83:14–23. Despite
her misgivings, Rodriquez-Coss entered her appearance in
the case on March 26, 2012. [Dkt. 35-5, Ex. F (Not.
Appearance) ].
In addition to Fell and Stone, Rodriquez-Coss was also
assigned a case pending in Rhode Island, United States v.
Pleau, in 2012. [Dkt. 35-5, Ex. Q]. All three of these cases
—Fell, Stone, and Pleau—remained active until the summer
of 2013, when the defendant in Pleau pled guilty. [Dkt. 46-2
at 162:24–164:1].
Several AUSAs submitted affidavits opining that the number
of cases assigned to Rodriquez-Coss was abnormal. [Dkt.
46-6, Ex. F (Mosley Decl.) ¶ 11; Dkt. 46-7, (Hegyi Decl.) ¶
16]. According to Kinsey, at the time his deposition was taken
the CCS currently had an estimated total of eight to 12 capital
cases and 15 to 25 § 2255 cases, with a total of 13 attorneys.
[Dkt. 46-5 at 118:21–120:2]. Based on Kinsey's estimate of
a range of 23-38 cases and 13 AUSAs, there could not be an
equal number of cases assigned to each AUSA in the unit.
There is no evidence in the record showing the number of
active criminal cases, criminal trials or habeas cases pending
in the unit during the time Rodriguez-Coss was employed.
Nor is there any evidence of the number of AUSAs in the unit,
their background and experience, their reporting relationships
or their caseloads.
During the summer of 2012, Rodriquez-Coss complained
of discriminatory accommodations to her supervisors. [Dkt.
46-1, Ex. A (Rodriquez-Coss EEOC Stat.) at 17:12–13].
Rodriquez-Coss complained that a white male coworker,
Stanley Rothstein, was not required to travel or litigate
cases outside of Washington, D.C. Id. at 17:13–19. Rothstein
confirmed that, between 2008 and 2013, he was only assigned
one case. [Dkt. 46-11, Ex. K (Rothstein Decl.) ¶ 4]. During
that case, Rothstein was not an active litigator and only made
two short trips to the regional USAO. Id.
In late 2012, Rodriquez-Coss's family was impacted by the
tragic mass shooting at Sandy Hook Elementary School,
located five minutes away from where Rodriquez-Coss
lived. [Dkt. 46-2 at 117:10–12]. Rodriquez-Coss testified
that, given the proximity of this shooting, there was an
emotional impact on Rodriquez-Coss's family, particularly
her school-age children. Id. at 117:12–13, 119:24–120:8.
Because of this turmoil, Rodriquez-Coss expressed concerned
to Carwile and Kinsey about leaving her family for months to
conduct a lengthy trial. Id. at 117:17–20. As Rodriquez-Coss
informed Kinsey, the combined stress of three active cases
alongside her family's struggles made it increasingly difficult
to adequately litigate each case. Id. at 117:24–118:2.
*3 On February 26, 2013, Carwile wrote in an email:
As you know, we have Jackie
Rodriquez-Coss on our payroll
but working out of the USAO
in Connecticut. Not a perfect
arrangement but I prefer, at this point,
to continue the arrangement until mid-
summer and see where we stand at that
point as a result of hiring additional
attorneys, etc. Her prior Flexiplace
Agreement has expired.... I would
like to [renew] this asap because she
recently received her mid-year review
and started squawking when she was
told she needed to be more proactive
in traveling to cover her litigation
matters. Before I raise this matter with
her again, I want to get an updated
agreement in place. I shortened the
duration of the agreement in the event
this turns into a larger problem.
[Dkt. 35-5, Ex. H (Email 2/26/13) ]. Rodriquez-Coss was
subsequently issued a four-month Flexiplace Agreement on
February 27, 2013 with an expiration date of June 29, 2013.
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[Dkt. 35-4 at 75 of PDF]. Rodriquez-Coss was later offered a
six-month Flexiplace Agreement that was signed on June 30,
2013, and ended December 31, 2013. Id.
As Rodriquez-Coss continued to litigate Stone in 2013,
she encountered numerous hurdles. She testified that the
previous prosecutors had apparently “neglect[ed]” the case
before Rodriquez-Coss was assigned. [Dkt. 46-2 at 83:13–
17]. Moreover, the local AUSA assisting Rodriquez-Coss was
inexperienced and completely unfamiliar with the case. Id. at
93:20–94:1. The federal judge in Stone was also considered to
have negative feelings about the death penalty. Id. at 169:12–
17. The record is devoid of any evidence of tardy filings in the
Stone case before it was assigned to Rodriquez-Coss. Nor is
there any evidence on the record of judicial bias on the part of
the presiding judge(s) or that Rodriquez-Coss filed a motion
to recuse or to disqualify the judge.
On February 5, 2013, Judge John C. Coughenour noted that
Rodriquez-Coss filed a tardy response to a discovery motion
in Stone. [Dkt. 35-5, Ex. G (Stone Tr. 2/5/13) at 13]. In
the months that followed, Rodriquez-Coss missed numerous
other deadlines. See [Dkt. 35-5, Ex. K (Stone Order 10/21/13)
(noting six untimely filings on January 7, January 9, August
22, September 30, October 4, and October 10) ].
On October 9, 2013, Rodriquez, Carwile, and Kinsey
discussed Rodriquez-Coss's litigation assignments over a
conference call. [Dkt. 46-4, Ex. D (Kinsey Dep.) at 48:4–
9]. During this call, Rodriquez-Coss informed Carwile and
Kinsey that she could not travel to California for several
months in order to prosecute Stone. Id. at 53:6–7, 53:14–
19. Either during this conversation or during one similar,
Rodriquez-Coss characterized the local AUSA as busy and
less active with the case. [Dkt. 46-2 at 169:9–170:23].
Nevertheless, Rodriquez-Coss asked Carwile to reduce her
workload by reassigning the guilt phase of Stone to the
inexperienced local AUSA, leaving her to try the penalty
phase only. [Dkt. 46-2 at 83:14–23, 175:19–22]. Rodriquez-
Coss believed that “the evidence [in Stone] was pretty
overwhelming for the government” and thus “felt that was
something that a regular prosecutor didn't need capital
experience in order to handle the guilt phase of the trial.”
Id. at 176:1–15. This proposed reassignment was rejected.
Id. at 84:20–22. Carwile admitted that he allowed similar
arrangements for other CCS attorneys. [Dkt. 46-5 at 24:1–5].
*4 Nearly two years after the case was assigned to her, on
October 21, 2013, Judge Coughenour again reprimanded the
prosecution, headed by Rodriquez-Coss, for failing to meet
deadlines. [Dkt. 35-5, Ex. K at 2–3]. In a written order, the
court remarked that:
[T]he government has demonstrated
a cavalier attitude towards obeying
deadlines and other procedural
requirements, and thus its demand that
the Court refuse to grant Defendant
an extension of time after a timely
motion is audacious at best. The
inability of the attorneys representing
the United States to obey court
orders has significantly lowered their
credibility with the Court. Counsel are
forewarned that the Court is seriously
considering an order to show cause
why government counsel should not
be held in contempt for their flagrant
disregard of the Court's orders.
Id. The magistrate judge assigned to Stone, Magistrate Judge
Gary S. Austin, also noted the “government's pattern of filing
untimely motions and deficient responses” on November 8,
2013. [Dkt. 35-5, Ex. L (Stone Order 11/8/13) at 1 n.1]. A few
weeks later on November 20, 2013, Magistrate Judge Austin
cautioned the government “that future late filings in this case
will not be tolerated and will likely result in the imposition of
sanctions.” [Dkt. 35-5, Ex. N (Order 11/20/13) at 2].
On November 26, 2013, there were two conference calls
between Rodriquez, Carwile, and Kinsey. [Dkt. 46-4 at
88:17–22, 93:11–15]. The first call was a case review that
included the Fresno USAO Branch Chief Kevin Rooney
and the Fresno AUSA, Mike Fry, assigned to Stone. Id.
at 88:17–22. During the call, Rodriquez-Coss claimed that
her work in Stone was impairing her ability to work on
Fell. Id. at 91:7–10. Immediately afterwards, Rodriquez,
Carwile, and Kinsey held a conference call. Id. at 93:11–
15. Kinsey's notes indicate Rodriquez-Coss complained about
the “fundamentally unfair” travel requirements and said she
would not try the Stone case as scheduled. Id. at 96:3–97:11.
A few weeks later, on December 19, 2013, Rodriquez-Coss
was given a two-month, instead of a six-month, Flexiplace
Agreement, which was effective from January 1, 2014 to
February 28, 2014. [Dkt. 35-5, Ex. D]. In an email sent
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alongside the new agreement, Kinsey informed Rodriquez-
Coss that subsequent agreements were “dependent on your
satisfactory completion of all pre-trial and trial litigation
duties and other assigned work responsibilities.” [Dkt. 35-5,
Ex. J (Email 12/19/13) ]. In response, Rodriquez-Coss noted
that, in her situation, ending her Flexiplace Agreement
“would be tantamount to a constructive firing” and “our
current disagreements are stressful enough without adding
to them the uncertainty, every two months, of whether my
Flexiplace agreement will be renewed.” Id. Carwile later
testified that the period for Rodriquez-Coss's Flexiplace was
reduced in response to Rodriquez-Coss's objections to travel
and to “buy additional time” to resolve this issue. [Dkt. 46-5
at 48:8–49:1].
Soon thereafter, on January 7, 2014, Carwile issued an
official reprimand to Rodriquez. [Dkt. 35-5, Ex. R (Official
Reprimand) ]. Carwile wrote:
This is an official reprimand for your
refusal to handle a case assignment
given to you by your supervisors. You
informed Capital Case Section (CCS)
that you are unwilling to litigate the
case of United States v. Samuel Stone
(E.D. Cal.) due to the travel required to
adequately prepare and prosecute this
matter. You cannot unilaterally refuse
to handle a case or change your work
assignments to accommodate your
personal preferences. This conduct
is unacceptable and will not be
tolerated. You are expected to accept
all assignments from your supervisors.
*5 Id. The reprimand was “intended to be constructive in
nature” and was added to Rodriquez-Coss's personnel file.
Id. Later that month, on January 22, 2014, Rodriquez-Coss
contacted the Department of Justice's Equal Employment
Opportunity Commission (“EEOC”), [Dkt. 35-5, Ex. T
(EEOC Compl.) ], and she filed an internal grievance
regarding her official reprimand, [Dkt. 35-5, Ex. Z (Grievance
Response 3/28/14) ]. CCS was later notified of the EEOC
contact on February 4, 2017. [Dkt. 35-5, Ex. U (EEO Letter
Excerpt 6/4/14) ]. The reprimand was later upheld by the
Department of Justice's Grievance Official, who called the
reprimand “fair and reasonable.” [Dkt. 35-5, Ex. Z].
Around February 10, 2014, Carwile and Kinsey learned
of the deficient filings in Stone. [Dkt. 46-4 at 159:22–
160:22]. At this time, the U.S. Attorney for the Eastern
District of California alerted Carwile and Kinsey to the
reprimands issued by the Stone judges. Id. at 160:18–22;
[Dkt. 46-5 at 82:19–83:4]. Two weeks later, on February
24, 2014, Carwile notified Rodriquez-Coss that he would
not renew her Flexiplace Agreement after it expired on
February 28, 2014. [Dkt. 35-5, Ex. Y (Email 2/24/14) ].
Carwile explained his decision was based on “revelations
over the last 2 weeks that were brought to my attention which
relate to missed deadlines and other deficiencies in court
filings.” Id. Moreover, Carwile also “determined that more
direct supervision of [Rodriquez-Coss's] work is needed” and
instructed Rodriquez-Coss to resume working from the CCS
office in D.C. beginning March 31, 2014. Id. On March 24,
2014, Rodriquez-Coss emailed Carwile seeking authorization
to continue working from Connecticut until April 30 in
preparation for an evidentiary hearing in Fell. Id. This was
denied. Id.
Rodriquez-Coss did not return to the CCS office on March 31,
2014. [Dkt. 35-2 ¶ 31; Dkt. 47 ¶ 31]. Instead, on March 31 at
10:35 pm, she emailed Carwile and Kinsey, explaining:
Unfortunately, the stress from my
current disputes pertaining to the status
of my flexi-place agreement has had
a marked and detrimental effect on
my health, to the point where I
am now under the continuing care
of physicians and taking medication.
While I am suffering medically from
this situation and under the care
of physicians, I simply cannot act
contrary to their advice and report for
duty in Washington. I will be providing
you with medical documentation that
the requested transfer is detrimental
to my health and that I can only
continue working with the limitation
that I remain in their care.
[Dkt. 35-5, Ex. AA (Email 3/31/14) ]. Rodriquez-Coss
also indicated that she would continue working out of the
Connecticut USAO. Id. The following afternoon, Kinsey
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replied and informed Rodriquez-Coss that she would be
placed on “AWOL status” starting April 2, 2014 unless she
provided medical documentation, since she did not report to
the D.C. office. Id. On April 2, 2014 Rodriquez-Coss was
declared AWOL and, because of her AWOL status, Kinsey
cancelled Rodriquez-Coss's enrollment in a training that was
necessary for her to stay in good standing with her state bar.
Id.; [Dkt. 35-2 ¶ 33; Dkt. 47 ¶ 33].
Rodriquez-Coss provided medical documentation from her
general practitioner on April 3, 2014. [Dkt. 35-5, Ex.
AA]. After receiving the documentation, Kinsey informed
Rodriquez-Coss that she was still on AWOL status and
could not work from the Connecticut USAO. Id. In the
days that followed, Rodriquez-Coss supplied further medical
documentation indicating that she had suffered chest pains
and an anxiety attack induced by the “stress of her
present situation.” [Dkt. 35-5, Ex. GG (Medical Records) ].
Rodriquez-Coss was eventually granted sick leave from April
4, 2014 to May 12, 2014 and annual leave under the Family
and Medical Leave Act from May 13, 2014 to May 30, 2014.
[Dkt. 35-2 ¶ 36; Dkt. 47 ¶ 36; Dkt. 35-5, Ex. BB (Leave
3/23/14 to 4/5/14); Dkt. 35-5, Ex. CC (Sick Leave Grant) ].
*6 On May 6, 2014, Rodriquez-Coss filed a formal
complaint of discrimination with the Department of Justice's
EEO staff. [Dkt. 35-2 ¶ 37; Dkt. 47 ¶ 37].
Then, on May 20, 2014, Rodriquez-Coss informed CCS
management that she had accepted a position with the USAO
in Connecticut and was resigning from the CCS. [Dkt. 35-2
¶ 39; Dkt. 47 ¶ 39]. Rodriquez-Coss also indicated that she
intended to remain on leave for the remainder of her time
with CCS. [Dkt. 35-2 ¶ 39; Dkt. 47 ¶ 39]. Rodriquez-Coss's
position was converted from a Trial Attorney to an AUSA in
the District of Connecticut on June 1, 2014. [Dkt. 35-2 ¶ 40;
Dkt. 47 ¶ 40]. This was effectively a transfer and Rodriquez-
Coss remained continuously employed by the Department of
Justice. [Dkt. 35-2 ¶ 40; Dkt. 47 ¶ 40].
On March 23, 2016, the DOJ EEOC granted Rodriquez-Coss
the right to a file a complaint within 30 days. [Dkt. 1 (Compl.
and Exs.) at 105 of PDF]. This case was timely filed on April
21, 2016. Id. at 1.
Standard of Review
Summary judgment should be granted “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The moving party bears the burden of proving that
no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010). “In determining whether the burden
has been met, the court is required to resolve all ambiguities
and credit all factual inferences that could be drawn in favor
of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) ). This means that “although the
court should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury
is not required to believe.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-Rubin v.
Sandals Corp., No. 3:03-cv-481, 2004 WL 2472280, at *4 (D.
Conn. Oct. 20, 2004) (“At the summary judgment stage of
the proceeding, [p]laintiffs are required to present admissible
evidence in support of their allegations; allegations alone,
without evidence to back them up, are not sufficient.”) (citing
Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.
1996) ). Put another way, “[i]f there is any evidence in the
record that could reasonably support a jury's verdict for the
nonmoving party, summary judgment must be denied.” Am.
Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH,
446 F.3d 313, 315-16 (2d Cir. 2006) (quotation omitted). In
addition, “the court should not weigh evidence or assess the
credibility of witnesses” on a motion for summary judgment,
as “[t]hese determinations are within the sole province of the
jury.” Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619
(2d Cir. 1996).
A party who opposes summary judgment “cannot defeat
the motion by relying on the allegations in his pleading,
or on conclusory statements, or on mere assertions that
affidavits supporting the motion are not credible.” Gottlieb,
84 F.3d at 518. “Summary judgment cannot be defeated by
the presentation ... of but a ‘scintilla of evidence’ supporting
[a] claim.” Fincher v. Depository Tr. & Clearing Corp., 604
F.3d 712, 726 (2d Cir. 2010) (quoting Anderson, 477 U.S.
at 252). Rather, a party opposing summary judgment “must
come forth with evidence sufficient to allow a reasonable jury
to find in [its] favor.” Brown v. Henderson, 257 F.3d 246,
252 (2d Cir. 2001). The evidence such as affidavits offered in
opposition to a motion for summary judgment must be both
admissible and must be sufficient to raise a genuine issue of
material fact. See Fed. R. Civ. P. 56(c); H. Sand & Co. v.
Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991); Beyah
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v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986); Martinez v.
State of Connecticut, 817 F. Supp. 2d 28, 37 (D. Conn 2011);
Hollander v. Am. Cyanamid Co., 999 F. Supp. 252, 256 (D.
Conn. 1998) (citing John Hancock Prop. and Cas. Ins. Co. v.
Universal Ins. Co., Ltd., 147 F.R.D. 40, 45 (S.D.N.Y. 1993) );
Welch–Rubin, 2004 WL 2472280, at *1.
*7 “Each statement of material fact by a movant in a Local
Rule 56(a)1 Statement ... must be followed by a specific
citation to (1) the affidavit of a witness competent to testify
as to the facts at trial, or (2) other evidence that would be
admissible at trial.” D. Conn. L. Rule 56(a)3; see also Fed. R.
Civ. P. 56(e). The Local Rules also points out,
Failure to provide specific citations
to evidence in the record as required
by this Local Rule may result in the
Court deeming admitted certain facts
that are supported by the evidence in
accordance with Local Rule 56(a)1,
or in the Court imposing sanctions,
including, when the movant fails to
comply, an order denying the motion
for summary judgment, and when the
opponent fails to comply, an order
granting the motion if the motion and
supporting materials show that the
movant is entitled to judgment as a
matter of law.
Id.; Fed. R. Civ. P. 56(e). Where there is no admissible
evidence upon which a jury could properly proceed to find a
verdict for the party producing it and upon whom the onus of
proof is imposed, such as where the evidence offered consists
of conclusory assertions without further support in the record,
summary judgment may lie. Fincher v. Depository Trust and
Clearance Co., 604 F.3d 712, 727 (2d Cir. 2010). “The burden
is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated.
There is no need to make a separate motion to strike.” Fed. R.
Civ. P. 56, advisory committee's note to 2010 amendment.
Analysis
Defendant moves for summary judgment on all three grounds:
(1) retaliation for conduct protected by Title VII; (2) sex
discrimination in violation of Title VII; and (3) discrimination
due to disability protected by the Rehabilitation Act.
Defendant addresses the retaliation and disparate treatment
claims under a single analysis, presumably because they
both utilize the McDonnell Douglas framework and have
overlapping facts. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–05 (1973). The Court will address
disparate treatment first.
I. Title VII Sex Discrimination Based on Disparate
Treatment
The Complaint asserts a combined claim for discrimination
on the basis of sex and parental status. [Dkt. 1 ¶¶ 31–32].
Defendant moves for summary judgment on two grounds.
First, Defendant argues that the Court lacks jurisdiction over
the claim of parental status discrimination because parental
status is not actionable under Title VII and, instead, is only
covered by Executive Order 13152. Exec. Order No. 13,152,
65 Fed. Reg. 26,115 (May 2, 2000). Importantly, the executive
order explicitly states, “This Executive Order does not confer
any right or benefit enforceable in law or equity against the
United States or its representatives.” Id. As a representative
of the United States, Defendant thus argues that the Court
lacks subject matter jurisdiction over this issue. [Dkt. 35-1
(Mot. Summ. J.) at 18]. In response, Plaintiff recognizes that
“discrimination on the basis of parental status per se is not
actionable under Title VII,” but nonetheless argues that forms
of gender discrimination can target female parents. [Dkt.
45 (Corrected Opp'n) at 2 n.1]. Therefore, Plaintiff has not
contested the lack of jurisdiction over her claim of parental
status. The Court construes this as a waiver of that claim and
any evidence presented of disparate treatment on the basis of
Plaintiff's parental status will be considered in the analysis of
Plaintiff's sex discrimination claim.
*8 Second, Defendant moves for summary judgment against
Plaintiff's gender discrimination claim by contesting her
prima facie case and articulating a number of legitimate
nondiscriminatory reasons for its actions. Disparate treatment
claims under Title VII are analyzed under the McDonnell
Douglas framework: (1) Plaintiff must demonstrate a prima
facie case of sex discrimination; (2) Defendant must then
offer legitimate nondiscriminatory reason(s) for its adverse
employment actions; and (3) Plaintiff then bears the burden
to prove that Defendant's stated reasons were pretext for
discrimination. See McDonnell Douglas, 411 U.S. at 803–05.
The parties' arguments under the sex discrimination claim will
be analyzed below under this framework. 2
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Notably, Plaintiff barely addresses the sex discrimination
claim at all, relying on the arguments and evidence from the
retaliation claim in only one, short paragraph. Plaintiff has
failed to comply with Rule 56 by filing a rule-compliant Local
Rule 56(a)(2) Statement and has submitted inadmissible
material in support of her opposition to summary judgment.
The Court has assessed the evidence Plaintiff cites and applies
it to the appropriate discrimination standard.
A. Prima Facie Case of Discrimination
In order to establish a prima facie case of sex discrimination,
Plaintiff must demonstrate: “(1) she is a member of a
protected class; (2) she is qualified for her position; (3)
she suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination.”
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d
Cir. 2015) (quoting Weinstock v. Columbia Univ., 224 F.3d
33, 42 (2d Cir. 2000) ). Defendant only contests the third and
fourth elements.
1. Adverse Employment Action
For an action to be adverse in a claim of discrimination it
must amount to a “materially adverse change in the terms and
conditions of employment.” Galabya v. N.Y.C. Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks
omitted) (citing Richardson v. N.Y. State Dep't of Corr. Serv.,
180 F.3d 426, 446 (2d Cir. 1999) ). Moreover, “[a]n adverse
employment action is one which is more disruptive than a
mere inconvenience or an alteration of job responsibilities.”
Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal
quotation marks omitted). For example, actions that are
materially adverse include “termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices ...
unique to a particular situation.” Sanders v. New York City
Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)
(quoting Terry, 336 F.3d at 141). In the end of the day, “[a]n
adverse employment action may or may not entail economic
loss, but there must be a link between the discrimination
and some tangible job benefits such as compensation, terms,
conditions or privilege of employment.” Alfano v. Costello,
294 F.3d 365, 373 (2d Cir. 2002).
Defendant contends that neither Plaintiff's work and travel
assignments, AWOL status, reduction and non-renewal of
her Flexiplace Agreement, nor her letter of reprimand
constitute adverse employment actions. 3 Plaintiff challenges
each position and argues that “[a] denial of a requested
accommodation can constitute an adverse employment
action.” [Dkt. 45 at 7]. The Court views Plaintiff's argument
to be essentially the same as Defendant's workload and travel
argument and will assess these positions together. The Court
will then address Defendant's other arguments.
i. Workload and Travel Assignments
*9 First, Plaintiff argues that Defendant did not
accommodate her travel and workload. Plaintiff submitted
several declarations from Plaintiff's coworkers, who opine
without reference to any facts that Plaintiff was assigned more
cases than other attorneys and was required to travel more
than certain male attorneys. [Dkt. 46-6, Ex. F ¶ 11; Dkt. 46-7,
Ex. G ¶ 16; Dkt. 46-11, Ex. K ¶ 4; Dkt. 46-1, Ex. A at 17:12–
13].
Defendant presented a summary of various CCS attorneys'
travel. [Dkt. 35-5, Ex. MM (Travel Summary Data) ]. 4 These
records reveal that Rodriquez-Coss traveled approximately as
often as, and even less often than a few, other CCS attorneys.
See id. However, Defendant has not presented evidence that
challenges the claim that her workload was burdensome.
The Second Circuit has clearly held that “the assignment of a
disproportionately heavy workload can constitute an adverse
employment action.” Vega, 801 F.3d at 85 (internal quotation
marks omitted). The key, however is disproportionate. Courts
within this circuit have held that unfavorable schedules,
work assignments, or excessive work are not per se adverse
employment actions, and a plaintiff must show more than just
these actions. See Linell v. New York City Dep't of Educ., No.
15-cv-5085 (CBA) (ST), slip op. at 6–7 (E.D.N.Y. Mar. 30,
2018) (granting summary judgment in age- and disability-
discrimination case for failure to show more); Johnson v.
Long Island Univ., 58 F. Supp. 3d 211, 224 (E.D.N.Y. 2014)
(finding a disproportionate workload in a race and gender
discrimination case when the plaintiff was assigned seven
weeks of duty while other employees were only assigned two
weeks). Plaintiff must therefore demonstrate a triable issue of
fact that her workload was disproportionate in order to survive
summary judgment.
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From 2012 through the summer of 2013, Rodriguez handled
three capital cases: Stone, a criminal trial in the Eastern
District of California; Fell, a habeas case in the District
of Vermont; and Pleau, a criminal trial in the District of
Rhode Island. See [Dkt. 46-2 at 162:21–164:16]. Rodriguez-
Coss relies on affidavits submitted by her colleagues Bruce
Hegyi and Julie Mosley as evidence of her disproportionate
workload. See [Dkt. 45 at 7–8]. Attorney Mosley stated,
During my six-year tenure in the
Capital Case Section, I do not
recall handling three active litigation
matters simultaneously. Based on my
experience, the demands of a capital
litigation matter are intensified when
it is pending in a district that is
not particularly supportive of the
death penalty and when the local
United States Attorney's Office does
not allocate sufficient personnel or
resources to the case.
*10 [Dkt. 46-6 ¶ 11]. Bruce Hegyi also attested to similar
matters:
During my tenure in the CCS, I was never required to
handle simultaneously three active capital matters with
impending trial dates; and I am not aware of anyone other
than Ms. Rodriguez-Coss who handled simultaneously that
many active capital trial matters. Over my tenure at CCS,
there were times when a CCS Trial Attorney had no active
capital trial matters, and it seemed to me that the norm was
for CCS Trial Attorneys to have one, or at most two, active
capital trial matters with impending trial dates.
* * *
In every Federal Death Penalty Act (FDPA) case that
involved CCS during my tenure, the federal capital defense
counsel employed a “scorched Earth” litigation approach.
In my experience, most of the CCS cases that have gone to
trial have in the neighborhood of 1,000 docket entries and/
or pleadings.
[Dkt. 46-7 ¶¶ 16–17]. He then went on to describe the
increasing demands when a capital case is before a district
judge “who is hostile to the FDPA” or the USAO does not
adequately assist the CCS attorney. Id. ¶ 17.
The Court finds that this evidence is insufficient for a jury to
conclude Rodriguez-Coss's workload was disproportionate.
First, Attorneys Mosley and Hegyi submitted declarations
that are speculative and not quantitative. They are devoid of
any facts which would allow their hypotheses to be tested.
The only facts offered to establish the disproportionality of
Plaintiff's workload was that there were 23-38 cases and
only 13 attorneys, meaning that the caseload was necessarily
disproportionate. There is also no evidence of the relative
experience of the attorneys in the unit or the complexities
of their caseloads. The proffered declarations represent the
opinions of a small percentage of the 12 or more attorneys
who worked for the CCS during 2012 and 2013. 5 Rodriguez-
Coss had the opportunity to discover both from public records
and the discovery process the information to make a factual
showing of the relative workload of the attorneys in the
unit during the relevant time frame. After all, Defendant
provided the Court with a data sheet of all the attorneys'
travel broken down by fiscal year, and it is likely they
would have kept documentation of the caseloads in order to
approve travel. The Court therefore cannot conclude, based
on attorneys' affidavits, that Rodriguez-Coss's workload was
disproportionate when compared to the entire office.
Second, Rodriguez-Coss's workload does not even appear
disproportionate in comparison to the workload referenced in
the affidavits. Attorney Hegyi stated he “was never required
to handle simultaneously three active capital matters with
impending trial dates,” see [Dkt. 46-7 ¶ 16], but neither
was Rodriguez-Coss. Rather, she was assigned two active
criminal trial matters and one active § 2255 habeas petition.
The Court cannot conclude Rodriguez-Coss's workload to be
disproportionate based on Attorney Hegyi's testimony as he
appears to have misunderstood her caseload as three active
criminal trials. That Attorney Mosley never worked on three
active litigation matters is of no moment because there is no
basis to conclude all other CCS attorneys would testify to
the same fact (i.e. that they did not have three active cases).
Plaintiff cites no evidence in the record leading a reasonable
jury to conclude two active criminal trials and one active
habeas petition is disproportionate.
*11 Third, the evidence indicates Rodriguez-Coss
complained to her managers only of her travel requirements,
not the alleged excessive workload itself. For example, on
January 6, 2014, Rodriguez-Coss sent an email to Renee
Caputo regarding the shortening of her Flexiplace Agreement.
See [Dkt. 35-5, Ex. Q]. She indicated she could not work
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on Stone because she could not be away from home for
three to four months. See id. Of note, she expressly stated
her “concerns relate primarily to [her] inability to travel,
particularly to California, on a regular basis.” Id. When
explaining her case assignments with the CCS, she stated
the following: “In November 2011 I received a call from
Chief Carwile during which he asked whether I was willing
to litigate another case. I told him that as long as the case was
‘not in Alaska,’ meaning not far away from my home, I would
be willing to do so.” Id. In this same email, she indicated
she “agreed” to take on Pleau in 2012 and see Fell to its
conclusion. See id.
The Court concludes that Plaintiff has not presented a triable
issue of fact that her workload was excessive notwithstanding
the fact that Defendant did not present any evidence speaking
to her workload which is a function of more than just the
number of cases. At this stage of the litigation, Plaintiff has
had the opportunity to conduct discovery and present facts
establishing the disproportionality of her workload. She has
failed to raise a triable issue of fact. Therefore, in light of
the authenticated summary chart showing Rodriguez-Coss
traveled the same or less than most CCS trial attorneys, the
Court finds that her assigned workload and travel did not
constitute an adverse action.
Plaintiff's main argument is that Defendant's failure to
accommodate her travel needs constituted an adverse action.
See [Dkt. 45 at 7]. She cites Little v. Nat'l Broad. Co.,
Inc., 210 F. Supp. 2d 330, 337 (S.D.N.Y. 2002), a Title VII
discrimination action on the bases of race and sex. In defining
“adverse action,” the district court stated,
While there is no exhaustive list
of what constitutes an adverse
employment action, courts have held
that the following actions, among
others, may qualify: discharge or
demotion, denial of a provisional
or permanent promotion, addition
of responsibilities, involuntary
transfer that entails objectively
inferior working conditions, denial
of a requested employment
accommodation, denial of training that
may lead to promotional opportunities,
and a shift assignment that makes a
normal life difficult for the employee.
Id. (internal citations omitted, emphasis added). The district
court cited Pomilio v. Wachtell Lipton Rosen & Katz, No. 97
Civ. 2230 (MBM), 1999 WL 9843, at *9 (S.D.N.Y. Jan. 11,
1999), in stating that a denial for a requested employment
accommodation is an adverse action. Pomilio is inapposite
here as it addresses a plaintiff's discrimination claim in
violation of the Americans with Disabilities Act (“ADA”)
and corresponding New York state provision. An individual's
need for a reasonable accommodation is decidedly different in
the context of the ADA where “reasonable accommodation”
is a statutory requirement. See 42 U.S.C. § 12112(a)(5)(A).
Rodriguez-Coss does not assert any entitlement to relief
for an ADA violation or for another basis in which a
reasonable accommodation is statutorily required to be given.
Furthermore, Rodriguez-Coss has provided no legal basis for
the Court to extend an ADA case to this Title VII case based
on these facts in evidence. She is essentially asking the Court
to rule that a supervisor must give case assignments based on
the requests of the employees without any legal support. The
Court should not and will not usurp the role of the employer to
manage its workload and employees. The Court finds that the
decision not to accommodate Rodriguez-Coss's travel request
and case assignments is not an adverse action.
ii. AWOL status
Second, it is disputed whether Plaintiff's AWOL status
from April 2, 2014 to April 3, 2014 constitutes an adverse
action. Generally, AWOL designation is not an adverse action
when employees are absent without any documented reason.
See, e.g., Pierre v. Napolitano, 958 F. Supp. 2d 461, 479
(S.D.N.Y. 2013) (finding that plaintiff's AWOL status was
not an adverse employment action because it “was the direct
result of his failure to provide [medical] documentation” in
support of his request for medical leave); Lucas v. Potter,
No. 3:08CV480, 2010 WL 148451, at *8 (D. Conn. Jan.
11, 2010) (finding that AWOL status was not an adverse
employment action because plaintiff neglected to provide the
required medical documentation until one month after his
request for sick leave). Although there are few decisions
on this issue, other courts in this circuit have found that
AWOL status coupled with ignorance of a request for sick
leave with medical documentation qualifies as an adverse
action. See Krishnapillai v. Donahoe, No. 09–CV–1022,
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2013 WL 5423724, at *12–13 (E.D.N.Y. Sept. 25, 2013)
(finding that AWOL status and wrongful denial of sick leave
constitutes an adverse employment action); Jordan v. Potter,
No. 05-CV-3005, 2007 WL 952070, at *6, *21–22 (E.D.N.Y.
Mar. 29, 2007) (on a motion to dismiss, finding an adverse
employment action in a Rehabilitation Act claim—analyzed
under the McDonnell Douglas framework—where plaintiff
was wrongly declared AWOL and denied sick leave).
*12 In this case, Plaintiff did not provide medical
documentation until the day after she was declared AWOL.
[Dkt. 35-5, Ex. AA]. After providing the information, she
was ultimately granted sick leave from April 4 through May
12 after which she took annual FMLA leave until May 30.
See [Dkt. 35-2 ¶ 36; Dkt. 47 ¶ 36; 35-5, Ex. AA, Ex. BB,
Ex. DD (Leave 4/6/14 to 5/31/14) ]. The physicians' letters
indicate that Rodriguez-Coss had medical appointments for
March 31, April 4, and April 7. See [Dkt. 35-5, Ex. GG].
Her cardiologist signed a letter dated April 8, 2014, indicating
that she should not return to work until cardiac testing is
completed and reviewed. See [Dkt. 35-5, Ex. EE (Physician
Letter 4/8/14) ]. The record therefore supports Defendant's
conclusion in giving Rodriguez-Coss retroactive sick leave
for all days except April 2 and 3 of 2014.
Alternatively, Plaintiff argues she was denied the opportunity
to attend a continuing legal education class because of her
AWOL status, which “she needed urgently to maintain her
law license.” [Dkt. 45 at 9]. She does not allege, however,
that she lost her license. Given the nearly constant stream
of continuing legal education courses offered to attorneys,
the Court surmises that she could have taken (and possibly
did take) another course in lieu of the one she missed. See
[Dkt. 46-1 at 51:8–52:3]. The Court finds this set back was
a mere inconvenience but did nothing to materially alter the
conditions of her employment or cause some other loss of
tangible job benefits, given that she was not suspended and
did not lose her license. See Terry, 336 F.3d at 138.
Moreover, Defendant withdrew Rodriguez-Coss from the
training after she represented that her physician advised
her to remain in Connecticut under care and not travel to
Washington D.C. The Court is in a quandary how, under those
facts, she could allege she was harmed by her inability to
attend a training in North Carolina when she was advised
to remain under her doctor's care. See [Dkt. 35-5, Ex. EE].
For these reasons, Rodriguez-Coss's AWOL status does not
qualify as an adverse employment action.
iii. Letter of Reprimand
Third, it is Defendant's position that Rodriguez-Coss's letter
of official reprimand did not constitute an adverse action.
“Reprimands or negative evaluation letters may, in some
circumstances, constitute adverse employment action, and
whether they do is typically a question of fact for the jury.”
Lawrence v. Melhman, 389 F. App'x 54, 56 (2d Cir. 2010)
(Title VII discrimination case citing Second Circuit cases);
see McKinney v. Dep't of Transp., 168 F. Supp. 3d 416, 423 (D.
Conn. 2016) (recognizing in a Title VII race discrimination
case that an adverse employment action includes reprimand)
(citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)
(First Amendment retaliation), abrogation recognized on
other grounds by Montero v. City of Yonkers, 196 F.3d 102,
110 (2d Cir. 1999) ); Abraham v. Potter, 494 F. Supp. 2d
141, 147 (D. Conn. 2007) (acknowledging a reprimand may
constitute an adverse action in a Title VII discrimination suit);
see generally Sanders, 361 F.3d at 756 (recognizing in a Title
VII discrimination case that a negative job evaluation may
cause an adverse action).
Typically, district courts in this circuit have held that
reprimands, without more, are not adverse actions in
employment discrimination suits. See Abraham v. Potter,
494 F. Supp. 2d 141, 147 (D. Conn. 2007) (applying the
“reprimand plus other negative results standard”); Bennett v.
Watson Wyatt & Co., 136 F. Supp. 2d 236, 248 (S.D.N.Y.
2001) (holding that no adverse employment action occurred
where plaintiff was unfairly scrutinized and informally
reprimanded for tardiness, when monitoring and reprimands
did not result in decrease in pay, probation, or other negative
consequence); c.f. Stembridge v. City of New York, 88 F. Supp.
2d 276, 283 (S.D.N.Y. 2000) (finding a reprimand was not
an adverse action because it did not indicate “any planned
discipline or further action,” but acknowledging “[a]n adverse
employment decision is actionable under Title VII when it
relates to an employee's ‘[c]ompensation, terms, conditions,
or privileges of employment,’ or involves a classification
which ‘[w]ould deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee.’ ”) (quoting 42 U.S.C. § 2000e-2(a) ).
*13 Defendant issued the official reprimand on January 6,
2014 in which it cited Plaintiff's refusal to litigate and travel
for the Stone trial as the basis for the reprimand. 6 [Dkt.
35-5, Ex. R]. Rodriguez-Coss previously discussed this issue
with her supervisors on multiple occasions. See, e.g., [Dkt.
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46-4, Ex. D at 48:4–9, 53:6–19, 91:7–10]. The Court observes
that Plaintiff did not experience any changes in her terms
of conditions directly after receiving the letter of reprimand.
The letter was deemed to be “constructive in nature” and
cautioned that “future misconduct may lead to more formal
disciplinary action being proposed against you, up to and
including removal from the federal office.” [Dkt. 35-5, Ex.
R]. The Court questions the letter of official reprimand was an
adverse action. However, in light of the previous discussions
(leading the Court to conclude this was not the first time
Plaintiff was made aware of the issue), the subsequent non-
renewal of her Flexiplace Agreement, and in consideration of
the prevailing case law, the Court assumes without deciding
the letter of reprimand was an adverse action.
iv. Flexiplace Agreement Denial
The remaining actions addressed by Defendant is the
reduction and subsequent non-renewal of Plaintiff's
Flexiplace Agreements. The Second Circuit has not addressed
whether the denial or non-renewal of work-from-home status
or telecommuting privileges constitutes an adverse action.
See Martinez-Santiago v. Zurich N. Am. Ins., No. 07 Civ.
8676, 2010 WL 184450, at *7 (S.D.N.Y. Jan. 20, 2010). In
Martinez-Santiago, the plaintiff was pregnant and received
telecommuting status for the few weeks leading up to her
due date. She took leave after giving birth and then sought
permission to telecommute a few days per week “in order
to observe the level of care being given to her son by
the new caretaker.” See id. at *3. The plaintiff maintained
that the accommodation would be temporary to resolve the
unanticipated day care problem. Id. Her employer denied
the request, which gave rise to the litigation. In ruling
that the telecommuting denial did not constitute an adverse
employment action, the district court stated the denial “was
a short term inconvenience that did not rise to the level of
an adverse employment action.” Id. at *7. The district court
cited numerous cases finding such denied requests did not
constitute an adverse action, but it nonetheless acknowledged
that “there may be some situation where the denial of a request
to work from home qualifies as an adverse action....” Id.
The Court has assessed these cases and finds they differ in one
key respect: unlike the plaintiffs in those cases, the plaintiff
in this case had been working remotely for over three years
prior to the non-renewal of her Flexiplace Agreement. After
electing not to renew the Flexiplace Agreement, Defendant
gave her only one month to return to D.C. See [Dkt. 35-5, Ex.
Y]. This would have forced her to quickly relocate herself,
her small children and husband; leave them behind; or quit
her job. Indeed, over the span of three years, Plaintiff lived
in Connecticut and established deep roots to her home. Her
young children spent three years growing accustomed to their
school and her husband's career was based in Connecticut.
CCS management was patently aware of Plaintiff's familial
situation; after all, Plaintiff began working in Connecticut as
a direct result of her husband's work transfer and her requests
for accommodation frequently referenced her children. On
the other hand, she knew from the onset it was a temporary
arrangement.
It is worth noting that Carwile initially offered her the
Flexiplace Agreement in 2010 to keep her with the CCS.
See [Dkt. 46-5 at 109:14–110:6]. He explained, “I believed
that she was leaving to move to Connecticut and that the
only way that I would be able to, perhaps, have a discussion
with her about having a long distance work arrangement
for some period of time would be pursuant to some sort of
arrangement like this.” Id. at 110:20–111:3. His knowledge
that a Flexiplace Agreement was necessary to keep her with
the CCS suggests Defendant foresaw her resignation should
the non-renewal be issued.
*14 Clearly, this non-renewal is more than just an
“inconvenience or an alteration of job responsibilities.” Terry,
336 F.3d at 138. Given Carwile's motivation in issuing the
Flexiplace Agreement and the length of time she worked
remotely, a reasonable jury could determine it is a material
change in the terms and conditions of her employment if
not a calculated effort to squeeze Rodriguez-Coss out of
employment. See Galabya, 202 F.3d at 640.
2. Inference of Discriminatory Intent
The Court now addresses whether Defendant's actions
surrounding the letter of reprimand or the non-renewal of the
Flexiplace Agreement gives rise to discriminatory intent.
With respect to the fourth element of the prima facie case,
all that is needed is “some minimal evidence suggesting
an inference that the employer acted with discriminatory
motivation....” Littlejohn v. City of New York, 795 F.3d
297, 307 (2d Cir. 2015) (internal quotation marks omitted);
Walsh v. New York City Hous. Auth., 828 F.3d 70, 75 (2d
Cir. 2016) (stating the prima facie burden is minimal).
“Because an employer who discriminates is unlikely to leave
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a ‘smoking gun’ attesting to a discriminatory intent, a victim
of discrimination is seldom able to prove his claim by direct
evidence, and is usually constrained to rely on circumstantial
evidence.” See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d
29, 37 (2d Cir. 1994). 7
Examples of circumstantial evidence giving rise to a
discriminatory inference include, “but [are] not limited to,
the employer's criticism of the plaintiff's performance in
ethnically degrading terms; or its invidious comments about
others in the employee's protected group; or the more
favorable treatment of employees not in the protected group;
or the sequence of events leading to the plaintiff's discharge.”
Littlejohn, 795 F.3d at 312 (internal quotation marks omitted);
Chambers, 43 F.3d at 37; c.f. Vill. of Freeport v. Barrella, 814
F.3d 594, 601 n.9 (2d Cir. 2016) (“But we have nonetheless
suggested that a plaintiff may be able to plead a prima
facie case under Title VII even without showing that the
defendant favored someone outside of the plaintiff's protected
class.”). Plaintiff lists general principles about Defendant's
discriminatory motive without alerting the Court to specific
evidence.
First, she alleges Carwile and Kinsey are sexist and “biased
in favor of male and against female CCS attorneys.” This
appears to be an argument that similarly situated male
employees were treated more favorably. See Littlejohn, 795
F.3d at 312. “An employee is similarly situated to co-
employees if they were (1) subject to the same performance
evaluation and discipline standards and (2) engaged in
comparable conduct.” Ruiz v. Cty. of Rockland, 609 F.3d 486,
493–94 (2d Cir. 2010).
A plaintiff makes a prima facie case for an inference
of discrimination “by showing that a similarly situated
individual not in [plaintiff's] protected group ... was treated
differently.” Tramble v. Columbia Univ., No. 97 Civ. 1271
(RWS), 1999 WL 61826, at *5 (S.D.N.Y. Feb. 10, 1999)
(citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63
(2d Cir. 1997) ). In order to be similarly situated, plaintiff
must be similarly situated in all material respects to her
comparator. Shumway, 118 F.3d at 64. One measure of
whether two employees are similarly situated is whether they
have comparable experience. See Bandhan v. Lab. Corp. of
Am., 234 F. Supp. 2d 313, 317-18 (S.D.N.Y. 2002); Shumway,
118 F.3d at 64; Ralkin v. New York City Transit Auth., 62 F.
Supp. 2d 989, 999 (S.D.N.Y. 1999). Plaintiff does not identify
any individuals, compare herself to any particular individual
or individuals, or provide any legal argument allowing the
Court to assess those who were similarly situated.
*15 Without any evidence speaking to the CCS attorneys'
performance evaluations, discipline standards, experience,
or their caseloads, the Court will not make assumptions on
behalf of Plaintiff. See Amnesty Am. v. Town of West Hartford,
288 F.3d 467, 470 (2d Cir. 2002) (“Fed. R. Civ. P. 56 does
not impose an obligation on a district court to perform an
independent review of the record to find proof of a factual
dispute.”); D. Conn. Civ. L. R. 56(a)3 (“Failure to provide
specific citations to evidence in the record as required by
this Local Rule may result in the Court deeming admitted
certain facts that are supported by the evidence in accordance
with Local Rule 56(a)1, or in the Court imposing sanctions,
including, when the movant fails to comply, an order denying
the motion for summary judgment, and when the opponent
fails to comply, an order granting the motion if the motion
and supporting materials show that the movant is entitled to
judgment as a matter of law.”). The Court will not consider
the attesting attorneys' qualified opinions that male attorneys
were often given more desirable and high profile cases,
whereas female attorneys were more likely to be assigned to
cases in remote districts before courts that were hostile to the
death penalty. See [Dkt. 46-6 ¶ 5; Dkt. 46-7 ¶ 7; Dkt. 46-8 ¶
12]. The affidavits do not elucidate who these male attorneys
were, whether they should properly be considered similarly
situated, and the basis on which the profile or desirability of
a case can be evaluated. For the same reason, the Court will
not conclude discriminatory intent based solely on Plaintiff's
statement that in the summer of 2012 she complained that
her male coworker was given a travel accommodation while
she was not, because she does not assert he was similarly
situated. See [Dkt. 45 at 6; Dkt. 46-1 at 17:8-19; see Dkt.
35-5, Ex. Q (email from 01/06/2014 documenting his travel
accommodation) ].
Second, she alleges “comments by the decision maker” were
made against her protected group. See [Dkt. 45 at 10]. The
central question in evaluating remarks is whether they have
a “tendency to show that the decision-maker was motivated
by assumptions or attitudes relating to the protected class.”
Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d
Cir. 2007), abrogated on other grounds by Vogel v. CA, Inc.,
662 Fed. App'x. 72, 75 (2d Cir. 2016) (emphasis added)
(age discrimination); see Henry v. Wyeth Pharms., Inc., 616
F.3d 134, 149 (2d Cir. 2010) (citing Tomassi in a Title VII
discrimination case). In other words, “the more remote and
oblique the remarks are in relation to the employer's adverse
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action, the less they prove that the action was motivated
by discrimination.” Tomassi, 478 F.3d at 115. A helpful
framework to consider is “(1) who made the remark (i.e., a
decision-maker, a supervisor, or a low-level co-worker); (2)
when the remark was made in relation to the employment
decision at issue; (3) the content of the remark (i.e., whether
a reasonable juror could view the remark as discriminatory);
and (4) the context in which the remark was made (i.e.,
whether it was related to the decision-making process).”
Henry, 616 F.3d at 149 (establishing these factors in the
context of determining the probative value under Fed. R.
Evid. 403).
The Court finds instructive Norris v. New York City Housing
Auth., No. 02 Civ. 6933 (RJH), 2004 WL 1087600, at *10
(S.D.N.Y. May 14, 2004). In this Title VII disparate treatment
and retaliation case, the plaintiff, an African American
woman, submitted an affidavit from a former supervisor
who averred that the director of the office “disparaged [the
plaintiff's] Afrocentricity, manner of dress, hairstyles, and
reading materials....” Id. The district court held that the
allegations failed to “identify the content, place, or time of
the remarks, and is devoid of details from which such animus
could be inferred.” Id. In support, the court cited several cases
in this circuit that find a “stray remark” remote from any
connection to the adverse action is insufficient to show an
inference of discrimination. See id. (citing Eastman v. United
Parcel Serv., 194 F. Supp. 2d 256, 264–65 (S.D.N.Y. 2002);
Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir.
2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp. 2d 234,
247 (S.D.N.Y. 2000); Sanders v. Mount Sinai Med. Ctr., No.
98 Civ. 828, 1999 WL 1029734 (S.D.N.Y. Nov. 10, 1999)
). Affidavits submitted on behalf of Rodriguez-Coss must
likewise provide some specificity linking the comments to the
adverse action in a way where discriminatory intent may be
inferred—otherwise, they are mere stray remarks.
Rodriguez-Coss generally cites the affidavits she submitted
without pointing the Court to the particular comments made
or, at times, who made them. A number of Plaintiff's
coworkers testified that CCS management gave male
attorneys preferential treatment and, at least once, expressed
a derogatory opinion of women. AUSA Haines recalled that
Carwile once said that “women only go to law school to find
rich husbands.” [Dkt. 46-8 ¶ 12]. Carwile once attempted to
conceal an incident where Kinsey groped a female employee.
[Dkt. 46-12 ¶¶ 6–8]. The Court has evaluated these affidavits
and finds they fail to (a) specify the time period when any
alleged invidious comment was made and/or (b) come from
a decision-maker. See, e.g., [Dkt. 46-6 ¶ 6; Dkt. 46-7 ¶ 9;
Dkt. 46-8 ¶ 12; Dkt. 46-10 ¶ 4]. Nor do these comments rise
to the legal of invective held to be sufficient to constitute
discriminatory intent in this circuit. See Norris, 2004 WL
1087600, at *10; Nurse v. Lutheran Med. Ctr., 854 F. Supp. 2d
300, 316–17 (E.D.N.Y. 2012); see also Abdu-Brisson v. Delta
Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (finding in
an age discrimination case that stray remarks of a decision-
maker, without more, is insufficient to show an inference of
discrimination); Tomassi, 478 F.3d at 114–15 (distinguishing
stray remarks from comments evincing a discriminatory state
of mind). The Court cannot conclude, based on the evidence
submitted, that the comments show the letter of reprimand or
the non-renewal of the Flexiplace Agreement were motivated
by discrimination. See Tomassi, 478 F.3d at 116.
*16 Accordingly, Plaintiff has failed to show that Defendant
acted with a discriminatory intent when it issued the letter of
reprimand and did not renew the Flexiplace Agreement.
B. Legitimate Nondiscriminatory Reason
Assuming arguendo Plaintiff had met her burden, the
Court will now address Defendant's proffered legitimate
nondiscriminatory reason for the adverse actions detailed
above.
The Court first addresses the letter of official reprimand.
The letter is based on Rodriguez-Coss's refusal to litigate
Stone and it states, “You cannot unilaterally refuse to handle
a case or change your work assignments to accommodate
your personal preferences.” [Dkt. 35-5, Ex. R]. Essentially,
Defendant explained that its actions were a response to
Plaintiff's unwillingness to perform the same work as every
other CCS attorney. Defendant contends that Plaintiff's work
assignments and travel were no more burdensome than any
other CCS attorney. See [Dkt. 35-1 at 24]. Refusal to do work
assignments constitutes a legitimate, non-discriminatory
reason for an adverse action. See Becker v. Ulster Cty., NY,
167 F. Supp. 2d 549, 554 (N.D.N.Y. 2001) (“Defendants
assert that Becker was terminated for excessive absenteeism
and refusal to work on January 2 and 12, 2000. This suffices
for defendants to meet their burden at the second step.”);
see generally Gregory v. Daly, 243 F.3d 687, 696 (2d Cir.
2001) (“An employer's dissatisfaction with even a qualified
employee's performance may, of course, ultimately provide
a legitimate, non-discriminatory reason for the employer's
adverse action.”).
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The Court next addresses the non-renewal of the Flexiplace
Agreement. On February 24, 2014, Carwile emailed
Rodriguez-Coss informing her that he would not be renewing
her Flexiplace Agreement set to expire in four days. He stated,
As you know, use of the flexiplace
agreement is within management's
discretion and is not an entitlement.
Due to revelations over the last
2 weeks that were brought to my
attention which relate to missed
deadlines and other deficiencies in
court filings, I have determined that
more direct supervision of your work
is needed. As a result, I do not intend to
renew your flexiplace agreement upon
its expiration.
[Dkt. 35-5, Ex. Y]. Indeed, approximately two weeks prior
Kinsey was notified for the first time of Rodriguez-Coss's
late filings in the Stone case. [Dkt. 35-5, Ex. I (Kinsey Dep.
Excerpt) at 159:22–162:8; Dkt. 35-5 Ex. W (Email 2/10/14) ].
The late filings were numerous and resulted in several
strongly-worded reprimands from federal judges. On
February 5, 2013, Magistrate Judge Austin addressed one
of the defendant's discovery motions during an in-person
hearing and the government's late response. Magistrate Judge
Austin stated, “There was a delay, a tardy delay of about five
or so days. And I would just like an explanation at the end of
these proceedings as to why that happened. Because I don't
want to let either side think that deadlines that the court set
will simply be not considered seriously by the Court.” [Dkt.
35-5, Ex. G, at 14:3–8]. When Rodriguez-Coss stated the
late filing was a mistake, Magistrate Judge Austin responded,
“Which tells me that you missed reading the orders that
emanated from the Court. Because it distinctly gave you a date
set for the response.” Id. at 14:9–17.
*17 On October 21, 2013, Judge Coughenour issued a ruling
that granted the defendant's motion for extension of time. See
[Dkt. 35-5, Ex. K]. The government filed its response late,
and Judge Coughenour stated the following:
[T]he Court cannot take the
government's arguments demanding
that Defendant comply with the
“established deadline” seriously when
the government made those arguments
in a document filed more than three
weeks late. Indeed, the government
has demonstrated a cavalier attitude
towards obeying deadlines and other
procedural requirements, and thus its
demand that the Court refuse to grant
Defendant an extension of time after a
timely motion is audacious at best. The
inability of the attorneys representing
the United States to obey court
orders and deadlines has significantly
lowered their credibility with the
Court. Counsel are forewarned that
the Court is seriously considering an
order to show cause why government
counsel should not be held in contempt
for their flagrant disregard of the
Court's orders.
Id. Judge Coughenour cited nine instances in 2013 in which
Plaintiff's performance fell below an acceptable standard. He
cited six late filings in 2013 for which the government did not
show good cause and three deficient filings in 2013. See id.
The next month, Magistrate Judge Austin also issued an order
acknowledging the government's pattern of untimely filings,
see [Dkt. 35-5, Ex. L], issued a discovery order noting a
deficient submission to the court, see [Dkt. 35-5, Ex. M (Supp.
Disc. Order 11/8/13) ], and granted a late filing, see [Dkt.
35-5, Ex. N]. With respect to the order granting the late
filing, Magistrate Judge Austin stated, “[T]he United States
is again cautioned that future late filings in this case will
not be tolerated and will likely result in the imposition of
sanctions.” See [Dkt. 35-5, Ex. N, at 2 (emphasis in original) ].
Magistrate Judge Austin also acknowledged that both he and
Judge Coughenour have noted the government's pattern of
late filings. See id. at 2 n.2.
Notwithstanding these admonitions, Rodriguez-Coss missed
another deadline set by the court and on February 4, 2014,
she filed a motion nunc pro tunc requesting court's permission
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to file a document after the deadline. See [Dkt. 35-5, Ex. V
(Mot. 2/4/14) ].
It is well-settled that poor performance is a legitimate,
nondiscriminatory reason for an employer's adverse action.
See Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir.
2014) (reversing on the grounds of sufficient pretext, but
acknowledging district court held defendant had “seemingly
legitimate, non-discriminatory reasons for firing [plaintiff]
—primarily, poor performance reviews and affidavits from
three regional managers whom [plaintiff] supervised”);
Jain v. McGraw-Hill Cos., Inc., 506 F. App'x. 47, 48
(2d Cir. 2012) (stating plaintiff's poor work performance
was a legitimate, non-discriminatory reason for terminating
plaintiff's employment in an FMLA case); see also Forrester
v. Prison Health Servs., No. 12 CV 363(NGG)(LB), 2015
WL 1469521, at *15 (E.D.N.Y. Jan. 5, 2015) (“Misconduct,
excessive lateness, and poor performance are legitimate, non-
discriminatory reasons for defendants' adverse actions.”). In
this case, Rodriguez-Coss's clear and repeated failures to
timely and properly submit court filings was egregious and
caught the attention of not just one, but two federal judges.
It is a rare case in which this Court observes an attorney's
failure to comply with deadlines is as consistent as that of
the government in Stone. Such a performance would clearly
warrant closer monitoring from a supervised attorney.
C. Pretext for Discrimination
*18 Because Rodriguez-Coss could not show an inference
of discriminatory intent, she also cannot show Defendant's
legitimate, nondiscriminatory reasons are pretext.
The Court also notes that the supervisors' apparent absentee-
style of working does not mean that the non-renewal of the
Flexiplace Agreement was pretext for discrimination. See
[Dkt. 45 at 8]. There is no basis to conclude the supervisors,
in light of Rodriguez-Coss's persistent delinquency in the
Stone case, would not have supervised her more closely if
she was working in Washington, D.C. than they did when
she was working in Connecticut. At the very least, changing
her duty station to Washington, D.C. would have enabled
them to discern the amount of hours she was devoting to the
performance of her duties.
II. Retaliation for Conduct Protected by Title VII
In support of her retaliation claim, Plaintiff has put forward
two theories of retaliatory conduct: (i) retaliation by creating
a hostile work environment and (ii) retaliation directly in
response to plaintiff's grievances.
A. Retaliatory Hostile Work Environment
With respect to the hostile work environment theory,
Defendant argues that Plaintiff has not provided evidence of
any conduct that rises above the level of “ordinary workplace
conflicts.” [Dkt. 35-1 at 35]. In support, Defendant draws
the Court's attention to numerous cases that support the
general proposition that a claim of retaliatory hostile work
environment requires repeated instances of severe harassment
that create an abusive workplace environment. Id. at 11, 34;
see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 115 (2002) (“Hostile environment claims are different in
kind from discrete acts. Their very nature involves repeated
conduct.”); Fairbrother v. Morrison, 412 F.3d 39, 48 (2d
Cir. 2005) (requiring that “the harassment was sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment” to
establish a hostile work environment), abrogation recognized
on other grounds by Chung v. City Univ. of New York, 605
F. App'x 20 (2d Cir. 2015); Carrero v. New York City Hous.
Auth., 890 F.2d 569, 577 (2d Cir. 1989) (“The incidents
[of harassment] must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed
pervasive.”). Although the Plaintiff makes passing references
to the legal standard of a hostile work environment, she does
not provide any legal or factual analysis as to this type of
retaliation claim. [See Dkt. 45 at 3–4, 5–11]. The Court has
reviewed the evidence and finds Plaintiff has not provided
any evidence of repeated workplace harassment targeting her
because of her grievances. Therefore, Plaintiff has not met her
burden to bring forward evidence supporting her hostile work
environment claim and has not established a genuine dispute
of fact on this claim.
B. Discrete Retaliatory Actions
Under Title VII, it is unlawful for an employer to retaliate
against employees who oppose discriminatory practices or
file complaints of discriminatory treatment. 42 U.S.C. §
2000e-3(a) (2012). When analyzing retaliation claims, courts
apply the McDonnell Douglas burden-shifting framework.
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010); see
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also McDonnell Douglas, 411 U.S. at 802–05. Initially, the
plaintiff must establish a prima facie case by demonstrating
“(1) participation in a protected activity; (2) that the defendant
knew of the protected activity; (3) an adverse employment
action; and (4) a causal connection between the protected
activity and the adverse employment action.” Hicks, 593 F.3d
at 164 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d
166, 173 (2d Cir. 2005) ). Thereafter, there is a presumption
of retaliation that the defendant must rebut by articulating “a
legitimate, non-retaliatory reason for the adverse employment
action.” Jute, 420 F.3d at 173. Finally, if the defendant
proffers such a reason, “the presumption of retaliation
dissipates and the employee must show that retaliation was
a substantial reason for the adverse employment action. A
plaintiff can sustain this burden by proving that a retaliatory
motive played a part in the adverse employment actions even
if it was not the sole cause[;] if the employer was motivated
by retaliatory animus, Title VII is violated even if there
were objectively valid grounds for the [adverse employment
action]. Hicks, 593 F.3d at 164–65 (alterations in original)
(internal quotations omitted).
1. Prima Facie Case of Retaliation
*19 Defendant contends that Plaintiff has failed to
establish a prima facie case primarily because her protected
activity occurred well after the actions she argues constitute
retaliation. [Dkt. 35-1 at 22].
Defendant argues that Rodriguez-Coss does not have a valid
retaliation claim because she filed her EEOC complaint
in January of 2014, her employer became aware of the
filing in February 2014, and there is no adverse action
that is causally connected to the filing. [Dkt. 35-1 at 22].
Plaintiff does not dispute this but rather asserts that the
protected activity is different: that in the summer of 2012
she complained Defendant gave a travel accommodation to
a white male, Stanley Rothstein, but not to her. See [Dkt. 45
at 6]. Defendant's response to this position is that she did not
actually complain of discriminatory treatment, but rather was
only attempting to get a travel accommodation for herself.
[Dkt. 48 at 10–14].
Assuming Rodriguez-Coss's alleged complaint in the summer
of 2012 was a protected activity, she cannot show any
causal connection to an adverse action. The adverse action
standard for Title VII retaliation is slightly different from
that of discrimination. The Supreme Court in Burlington N.
& Santa Fe R.R. Co. v. White, 548 U.S. 53, 126 S. Ct.
2405, 165 L.Ed. 2d 345 (2006), expanded the definition of
an adverse action for Title VII retaliation claims to include
changes in employment outside the terms and conditions
of employment. See id. at 64. The Supreme Court held
that an adverse action in the retaliation context means “the
employer's actions must be harmful to the point that they
could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Id. at 57. The Court
must thus consider alleged adverse actions that would not
necessarily be cognizable under a discrimination claim.
Most of the alleged adverse employment actions—namely,
the letter of reprimand, the Flexiplace Agreement non-
renewal, and the AWOL status—were issued more than 1.5
years after the summer of 2012. When temporal proximity
alone is used to show causation, the proximity must be “very
close” in order to support a prima facie case of retaliation.
Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273, 121
S. Ct. 1508, 149 L.Ed.2d 509 (2001) (“Action taken (as
here) 20 months later suggests, by itself, no causality at
all.”); McCormick v. Donovan, 365 F. App'x 247, 249 (2d
Cir. 2010) (affirming district court's dismissal of pro se Title
VII retaliation claim where the 1.5 years delay between the
alleged protected activity and adverse action was “insufficient
to suggest a causal relationship”); Ofoedu v. St. Francis Hosp.
& Med. Ctr., No. 3:04cv1707 (PCD), 2006 WL 2642415, at
*25 (D. Conn. Sept. 13, 20106) (finding 13 months to be
insufficient to show causal connection between the complaint
and the termination); Ghaly v. U.S. Dept. of Agric., 739
F. Supp. 2d 185, 200 (E.D.N.Y. 2010) (nine month period
between protected conduct and retaliation did not support
causation); see generally Wanamaker v. Town of Westport Bd.
of Educ., 11 F. Supp. 3d 51, 75 (D. Conn. 2014) (finding a 15
month delay to be insufficient to support a causal connection
in an FMLA case); but see Summa v. Hofstra Univ., 708
F.3d 115, 128–29 (2d Cir. 2013) (“The seven-month gap
between Summa's filing of the instant lawsuit and the decision
to terminate her employment privileges is not prohibitively
remote.”). Therefore, these actions are too temporally remote
to warrant a causal connection.
*20 The only alleged adverse action that is close in time
to the summer of 2012 is the alleged excessive workload
and failure to accommodate travel and workload needs. The
evidence shows that Rodriguez-Coss took on the Fell case in
the District of Vermont and the Stone case in California in
2011, which is before she complained to the CCS about the
travel accommodations. 8 [Dkt. 35-5, Ex. Q]. She admits that
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she agreed to take on Pleau in June of 2012. Id. The Court
notes that she could have taken all three assignments before
she complained about Rothstein's travel accommodations, but
it will put this possibility aside for now. The fact of the matter
is there is simply no evidence supporting a conclusion that her
workload assigned in the summer of 2012 could be causally
connected to her alleged protected activity given that she was
asked and agreed to take on the case. The Court will not
consider the failure to accommodate her as she has not shown
a legal basis for concluding a requested accommodation is
a cognizable adverse action in the context of her particular
Title VII discrimination and retaliation claim. Rodriguez-
Coss therefore fails to establish a prima facie case.
The Court need not address the second and third prongs
because Rodriguez-Coss willingly took on the third
assignment.
C. Rehabilitation Act of 1973
The Rehabilitation Act of 1973 provides that “[n]o otherwise
qualified individual with a disability in the United States ...
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or
be subjected to discrimination ... under any program or
activity conducted by any Executive agency....” 29 U.S.C.
§ 794(a) (2012). Furthermore, the Act instructs that claims
of discrimination are interpreted in accordance with the
standards applied under the Americans with Disabilities Act.
29 U.S.C. § 794(d). Accordingly, the standard for a prima
facie case of discrimination under the Rehabilitation Act
requires Rodriquez-Coss to show:
(1) that she is a ‘qualified individual’ with a disability; (2)
that the defendants are subject to one of the Acts; and (3)
that she was ‘denied the opportunity to participate in or
benefit from defendants’ services, programs, or activities,
or was otherwise discriminated against by defendants, by
reason of her disability.
Dean v. Univ. at Buffalo Sch. of Med. & Biochemical
Scis., 804 F.3d 178, 187 (2d Cir. 2015) (quoting Powell
v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir.
2004) ). However, in Plaintiff's memorandum in opposition
to summary judgment, Plaintiff neglected to designate which
facts in the voluminous record support her claim under the
Rehabilitation Act. Instead, Plaintiff baldly claims “[t]he
record also shows that Rodriquez-Coss was perceived to have
a temporary disability” without a single citation to the record,
nor even reference to facts that might support her claim. [Dkt.
45 at 12]. Vague references to the record are not enough;
Federal Rule of Civil Procedure 56 makes quite clear that a
party must cite “particular parts of materials in the record.”
Fed. R. Civ. P. 56(c)(1)(A). Moreover, Rule 56 also warns
counsel that a court need only consider the materials cited to
decide the motion. Fed. R. Civ. P. 56(c)(3).
Plaintiff's Rehabilitation Act claims falls at the first hurdle,
since none of the facts cited in her memorandum support a
finding of disability. Plaintiff did not produce a scintilla of
evidence demonstrating the medical conditions alleged in her
complaint. See [Dkt. 1 ¶¶ 21–22]. Therefore, Plaintiff has
failed to establish a prima facie case and there is no genuine
dispute of fact in regards to her Rehabilitation Act Claim.
Even if she was disabled, the only adverse action taken
after she claimed to have been ill was the cancellation of
her attendance at a training program in North Carolina.
However, Plaintiff informed Defendant that she could not
travel to Washington, D.C. because she needed to remain in
Connecticut under the care of her doctors. Because Plaintiff
was required to remain in Connecticut she has failed to show
that the cancellation of her trip to North Carolina was an
adverse employment action.
Conclusion
*21 For the foregoing reasons, Defendant's Motion for
Summary Judgment is GRANTED. The Clerk is directed to
close this case.
IT IS SO ORDERED.
All Citations
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Footnotes
1 Prior to joining the CCU, Rodriquez-Coss previously served as an Assistant U.S. Attorney in the District of
Maryland and the District of Puerto Rico. [Dkt. 35-2 ¶ 1; Dkt. 47 ¶ 1].
2 Plaintiff neglected to include any citations to the record in the section of her memorandum supporting her sex
discrimination claim. Therefore, the Court will only consider the evidence cited in support of her retaliation
claim.
3 Of note, Plaintiff does not expressly assert a constructive discharge claim in the Complaint. See [Dkt. 1].
She did, however, claim Defendant's conduct resulted in her constructive discharge in the Joint Rule 26(f)
Report, which was signed by both parties. See [Dkt. 26 at 2]. Constructive discharge is one example of a
materially adverse action. See Stetson v. NYNEX Serv. Co., 995 F.2d 355, 359 (2d Cir. 1993). “An employee
is constructively discharged when [her] employer, rather than discharging [her] directly, intentionally creates
a work atmosphere so intolerable that [s]he is forced to quit involuntarily.” Terry, 336 F.3d at 151–52.
Intolerable working conditions are those that “when, viewed as a whole, they are ‘so difficult or unpleasant
that a reasonable person in the employee's shoes would have felt compelled to resign.’ ” Id. at 152 (quoting
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996) ). The discrepancy between the
two filings elucidates how murky these claims are. The Court surmises the constructive discharge has been
subsumed into the argument that the non-renewal of the Flexiplace Agreement is an adverse action and that
Plaintiff intended not to raise a separate constructive discharge claim. This conclusion is also necessitated
by the fact that a pleading can only be amended by re-pleading and not in a memorandum of law or other
document filed in a case. See Doe v. Torrington Bd. of Educ., 179 F. Supp. 3d 179, 189 n.3 (D. Conn. 2016);
Auguste v. Dep't of Corrs., 424 F. Supp. 2d 363, 369 (D. Conn. 2006).
4 Plaintiff objects to the admission of this summary chart on the basis that it is not a CCS document and does
not qualify as a business or Government record, and it was not produced during discovery. See [Dkt. 47 ¶
41]. The Court agrees with Defendant that this chart is admissible as a summary chart under Rule 1006 of
the Federal Rules of Civil Procedure, as it is authenticated by Chief Financing Officer Stacey Bass and the
original can presumably be inspected if the Court were to order the production. See [Dkt. 35-5, Ex. LL (Bass
Decl.) ]. The Court need not do so, however, because Plaintiff never requested to inspect the originals and
does not object on Rule 1006 grounds.
5 The record shows that 12 attorneys traveled for the CCS in fiscal year 2012 and 14 attorneys traveled for
the CCS in fiscal year 2013. See [Dkt. 35-5, Ex. MM]. The Court recognizes this may not be reflective of the
entire CCS attorney list. Kinsey testified that there were approximately 13 attorneys working for CCS at the
time of his deposition on August 2, 2017. See [Dkt. 46-4 at 118:21-120:2].
6 The reprimand does not reference her delinquent filings in the Stone case, as her supervisors did not find
out about that issue until February 10, 2014. See [Dkt. 46 at 159:22–160:13-22].
7 Plaintiff argues “the declarations of the present and former CCS attorney declarants in many instances
constitute direct evidence of discrimination.” [Dkt. 45 at 10]. Plaintiff does not, however, point the Court to
any such direct evidence.
8 Indeed, her assignment to the Stone case is what gave rise to her need for a lighter travel requirement.
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Vested Business Brokers, Ltd. v. County of Suffolk, Not Reported in Fed. Supp. (2017)
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2017 WL 4122616
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
VESTED BUSINESS BROKERS, LTD., Plaintiff,
v.
COUNTY OF SUFFOLK, Suffolk County Police
Department, Detective Thomas Gabriele (Shield #
1203), Richard Dormer, Alexander J. Caro, Kieran
Rodgers, Bridge Business & Property Brokers,
Inc., Joseph Holstein, Zygmund Marszalek, Arrow
Security, Inc., John and Jane Does 1-10, Defendants.
16-CV-4945 (JMA)(SIL)
|
Signed 09/15/2017
Attorneys and Law Firms
Alexei M. Schacht, New York, NY, for Plaintiff.
L. Adriana Lopez, Suffolk County Attorney's Office,
Hauppauge, NY, William C. Goggins, Mattituck, NY, Gayle
Sharon Gerson, Silvermanacampora LLP, Robert J. Ansell,
Silverman, Perlstein & Acampora, LLP, Jericho, NY, for
Defendants.
Joseph Holstein, Farmington, CT, pro se.
MEMORANDUM AND ORDER
STEVEN I. LOCKE, United States Magistrate Judge
*1 Presently before the Court are three motions to
dismiss Plaintiff Vested Business Brokers, LTD's (“VBB” or
“Plaintiff”) Complaint (“Compl.”) filed by: (1) Defendants
Alexander J. Caro (“Caro”), Bridge Business & Property
Brokers, Inc. (“Bridge”), and Arrow Security, Inc. (“Arrow”);
(2) Zygmund Marszalek (“Marszalek”) (collectively “Private
Defendants”); and (3) the County of Suffolk (“Suffolk
County”), the Suffolk County Police Department (“SCPD”),
Detective Thomas Gabriele (“Det. Gabriele”), and Richard
Dormer (“Dormer”) (collectively “County Defendants”). 1
See motion to dismiss (“Caro Motion”), Docket Entry (“DE”)
[31]; motion to dismiss (“Marszalek Motion”), DE [34],
motion to dismiss (“County Motion”), DE [38]; see also
Compl., DE [1]. On April 14, 2017, Judge Azrack referred
these motions to this Court for a Report and Recommendation
as to whether they should be granted. See DE [41]. On April
26, 2017, pursuant to 28 U.S.C. § 636(c), the parties filed an
executed Notice, Consent, and Reference of a Civil Action
to a Magistrate Judge, indicating their intention to have this
Court “conduct all proceedings and order the entry of a final
judgment” on the motions, which Judge Azrack So Ordered
on the same date. See DE [41, 42]. For the reasons set forth
herein, the motions to dismiss are granted in their entirety with
prejudice.
I. STATEMENT OF RELEVANT FACTS
The following facts, set forth in the Complaint and
the attached exhibits, are presumed true for purposes of
Defendants' motions.
The gravamen of Plaintiff's claims are that, due to a
conspiracy amongst the Private and County Defendants,
the County Defendants failed to properly investigate and
prosecute the Private Defendants for crimes committed
against VBB. See Compl. ¶ 43. VBB is a web-based
business designed to allow independent contractor-brokers
to arrange the purchase and sale of other businesses. See
id. ¶¶ 8, 21. Plaintiff allegedly created a proprietary system
called “Broker Net” which contains more than 225,000 pre-
qualified, registered business buyers as well as the financial
details of approximately 12,000 businesses for sale. Id. ¶
21. In order to safeguard financial details, VBB requires
all of its employees and independent brokers to execute
non-disclosure and restrictive covenant agreements prior to
receiving a password to enter the Broker Net system. Id. ¶ 24.
On or about January 16, 2004, VBB and Defendant Kieran
Rodgers (“Rodgers”) entered into an employment agreement
and executed a non-disclosure and restrictive covenant
agreement. Id. ¶ 25. Around the same time, Defendant Caro
founded Bridge Business and Property Brokers, Inc. and
“decided to build Bridge's business by stealing confidential
information, including business listings, training information
and other processes and procedures, and listing pitches and
sales techniques from VBB.” Id. ¶ 27. To that end, in
2006, Caro approached Rodgers and asked him to steal leads
and other proprietary information from Plaintiff, and for a
confidential VBB log-in username and password. Id. ¶¶ 29,
31. According to the Complaint, Defendants Joseph Holstein
(“Holstein”) and Marszalek, also worked with Caro and
Rodgers to steal listings and other confidential information
from VBB. See id. Sometime thereafter, Plaintiff allegedly
confronted Rodgers about his conduct and he confessed. See
id. ¶ 37. Subsequently, VBB filed complaints with, and turned
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over evidence to, the SCPD about the Private Defendants'
alleged crimes. Id. ¶ 39. The SCPD, however, failed to make
any arrests, and Plaintiff's complaint was closed in November
2015. Id. ¶ 42.
II. PROCEDURAL HISTORY
*2 As set forth above, VBB filed its Complaint on
September 5, 2016. See DE [1]. The Complaint seeks
money damages and equitable relief for: 1) violations
of the Fourteenth Amendment of the U.S. Constitution
made pursuant to 42 U.S.C. § 1983; 2) conspiracy claims
made pursuant to 42 U.S.C. §§ 1985(3) and 1986; 3)
breach of contract; 4) tortious interference with contract; 5)
misappropriation; and 6) an injunction against Rodgers, Caro,
and Bridge. See generally Compl. In response, on February
13 th , 16 th , and 17 th , 2017, Caro, Bridge, and Arrow, as
well as Marszalek and the County Defendants, respectively,
moved pursuant to Federal Rule of Civil Procedure (“Fed. R.
Civ. P.”) 12(b)(6) to dismiss. See DE [31, 34, 38]. On March
16, 2017, Judge Azrack referred the motions to this Court
for Report and Recommendation. See DE [41]. On April 26,
2017, the motions to dismiss were referred to this Court to
conduct all proceedings and enter a final order on the motions
in accordance with 28 U.S.C. § 636(c). See DE [47].
III. LEGAL STANDARD
A. Fed. R. Civ. P. 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6),
a complaint must set forth “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (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, 129 S. Ct. 1937, 1949 (2009).
But, a pleading “that offers only ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action
will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555, 127
S. Ct. at 1965). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’
” Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1966).
In reviewing a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true and draw
all reasonable inferences in favor of the non-moving party.
See LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d
471, 475 (2d Cir. 2009). Notwithstanding, “threadbare recitals
of the elements of a cause of action” that are supported by
“conclusory” statements and mere speculation are inadequate
and subject to dismissal. See Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (internal quotation and citation
omitted).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), the court may consider:
(1) the factual allegations in the
complaint, which are accepted as
true; (2) documents attached to
the complaint as an exhibit or
incorporated ... by reference; (3)
matters of which judicial notice may
be taken; and (4) documents upon
whose terms and effect the complaint
relies heavily, i.e., documents that are
“integral” to the complaint.
Calcutti v. SBU, Inc., 273 F. Supp. 2d 488, 498 (S.D.N.Y.
2003) (internal citation omitted); see also Miotto v. Yonkers
Pub. Sch., 534 F. Supp. 2d 422, 425 (S.D.N.Y. 2008)
(“[I]n assessing the legal sufficiency of a claim, the court
may consider only the facts alleged in the complaint, and
any document attached as an exhibit to the complaint or
incorporated in it by reference.”).
IV. DISCUSSION
Applying the standards outlined above, and for the reasons set
forth herein, the Court grants Defendants' respective motions
to dismiss in their entirety with prejudice. Plaintiff asserts
several federal causes of action made pursuant to 42 U.S.C.
§§ 1983, 1985(3), and 1986 based upon alleged violations
of its rights under the Equal Protection and Due Process
Clauses of the Fourteenth Amendment to the United States
Constitution. Initially, the Court considers the Private and
County Defendants' argument that these claims are barred by
the applicable statutes of limitations and, alternatively, fail to
state a claim upon which relief can be granted. The Court then
considers the remaining state law claims.
A. Conversion to a Motion for Summary Judgment
*3 As a preliminary matter, the Court considers whether
the affidavits annexed to the County Defendants' motion
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and Plaintiff's opposition papers converts that motion to one
for summary judgment. On a 12(b)(6) motion, “[i]f matters
outside the pleadings are presented to the court, a court may
convert the motion to dismiss into a summary judgment
motion.” Vailette v. Lindsay, No. 11-CV-3610, 2014 WL
4101513, at *3 (E.D.N.Y. Aug. 18, 2014); see also Friedl v.
City of N.Y., 210 F.3d 79, 83 (2d Cir. 2000) (“When matters
outside the pleadings are presented in response to a 12(b)
(6) motion, a district court must either exclude the additional
material and decide the motion on the complaint alone or
convert the motion to one for summary judgment under
Fed. R. Civ. P. 56 and afford all parties the opportunity to
present supporting material.”) (internal quotation marks and
alterations omitted). Although the court “must ordinarily give
notice to the parties” before conversion, “a party ‘is deemed
to have notice that a motion may be converted ... if that party
should reasonably have recognized the possibility that such a
conversion would occur.’ ” Almonte v. Pub. Storage Inc., No.
11 CIV. 1404, 2011 WL 3902997, at *1 (S.D.N.Y. Sept. 2,
2011) (quoting Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004));
see also In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.
1985) (“The essential inquiry is whether [the party] should
reasonably have recognized the possibility that the motion
might be converted into one for summary judgment or was
taken by surprise and deprived of a reasonable opportunity to
meet facts outside the pleadings.”).
Whether to convert the motion is in the District Court's
discretion. See Liberty Mut. Ins. Co. v. N. Picco & Sons
Contracting Co., No. 05 CIV. 217, 2008 WL 190310, at *3
(S.D.N.Y. Jan. 16, 2008) (“It is within the discretion of this
Court to convert a motion filed under Rule 12(b)(6) into a
motion seeking summary judgment when matters outside the
pleadings have been presented and accepted by the Court, and
where all parties have been given a reasonable opportunity
to present materials pertinent to the motion's disposition.”)
(internal quotation marks omitted); Scope, Inc. v. Pataki,
386 F. Supp. 2d 184, 190 (W.D.N.Y. 2005) (“The Court
determines in its discretion, however, not to convert these
motions on the pleadings to ones for summary judgment
at this time.”); Staveley v. St. Charles Hosp., 173 F.R.D.
49, 51 (E.D.N.Y. 1997) (“In its discretion and upon notice
to the parties, a court may consider materials outside the
pleadings. If it does so, and notice is given to the parties, the
motion for judgment on the pleadings is treated as one for
summary judgment.”). In exercising this discretion, Courts
“look[ ] to the substance of the motion,” Ansonia Tenants'
Coal., Inc. v. Ansonia Assocs., 163 F.R.D. 468, 470 (S.D.N.Y.
1995), as “[t]he element that triggers the conversion ... is a
challenge to the sufficiency of the pleader's claim supported
by extra-pleading material.” Nat'l Cement Co. v. Mead Corp.,
80 F.R.D. 703, 704–05 (S.D.N.Y. 1978) (citing 9 Wright &
Miller, Federal Practice and Procedure, § 1366, at 676).
Here, the Court declines to exercise its discretion to convert
this motion into one for summary judgment. The County
Defendants' and Plaintiff's extra-pleading material consists
of two affidavits by Robert Creighton (“Creighton”), a
non-party former Chief Investigator of the Suffolk County
District Attorney's Office who initially contacted the District
Attorney's Office on behalf of VBB, and an affidavit by Frank
Shea (“Shea”), a non-party private investigator contacted by
Creighton about VBB's claims. See Creighton Affidavit in
Support, DE [39-2]; Creighton Affidavit in Opposition; DE
[35], 2 Ex. B; Frank Shea Affidavit in Opposition, DE [35],
Ex. A. Creighton's and Shea's affidavits have no impact on the
Court's analysis however. See, e.g., FragranceNet.com, Inc. v.
Les Parfums, Inc., 672 F. Supp. 2d 328, 334 (E.D.N.Y. 2009)
(declining conversion where “there is nothing for the Court to
consider, in terms of evidence from the defendants, if it were
to convert the motion to dismiss into a summary judgment
motion.”). Moreover, the County Defendants neither include
a Rule 56.1 statement nor advocate for summary judgment
in their brief. See County Defendants' Memorandum of
Law (“County Def.'s Mem. Law”), DE [38]. For these
reasons, the Court declines to convert the County Defendants'
motion to dismiss to a motion for summary judgment.
Accordingly, the ignores the Creighton and Shea Affidavits,
as well as facts in the County Defendants' motion papers and
Plaintiff's Opposition Papers not set forth in the Complaint,
in determining this motion. See Patell Indus. Mach. Co.
v. Toyoda Mach. U.S.A., Inc., No. 93-CV-1572, 1997 WL
10972, at *2 (N.D.N.Y. Jan. 9, 1997) (“The Court, however,
declines to convert Defendant's motion to a motion for
summary judgment, and therefore will not consider Plaintiff's
affidavit in ruling upon the merits of Defendant's Rule 12(c)
motion.”).
B. Timeliness of VBB's Federal Law Claims
*4 Initially, the Private and County Defendants move to
dismiss Plaintiff's various federal law claims on timeliness
grounds. In response, VBB argues that its claims are timely as
the applicable statutes of limitations are tolled by the doctrines
of continuing harm and equitable estoppel.
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i. VBB's 42 U.S.C. §§ 1983, 1985(3), and 1986 claims
Plaintiff's Section 1983, 1985(3), and 1986 claims are
untimely. While Section 1983 does not contain a statute of
limitations provision, the Supreme Court has held that courts
entertaining claims brought under 42 U.S.C § 1983 should
borrow the state statute of limitations governing general
personal injury actions. See Owens v. Okure, 488 U.S. 235,
249, 109 S. Ct. 573, 582 (1989). New York State has a three-
year statute of limitations governing such claims. See CPLR
§ 214(5). Accordingly, the Supreme Court has held that the
statute of limitations for claims brought under 42 U.S.C. §
1983 in New York State is three years. See Owens, 488 U.S.
at 249, 109 S. Ct. at 582; Curto v. Edmundson, 392 F.3d 502,
504 (2d Cir. 2004) (finding N.Y. C.P.L.R. 214(5), which sets
the statute of limitations for personal injury claims, supplies
the limitations period for a civil rights claim brought under
42 U.S.C. § 1983 in New York). “[A] section 1983 cause of
action accrues ... when the plaintiff knows or has reason to
know of the injury which is the basis of his action.” Pearl v.
City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). The statute
of limitations governing actions brought under 42 U.S.C. §
1985 is also three years. See Cornwell v. Robinson, 23 F.3d
694, 703 (2d Cir. 1994). A cause of action also accrues under
Section 1985 “once the plaintiff knows or has reason to know
of the injury which is the basis of his action.” Id. (internal
quotation marks omitted). In contrast to Sections 1983 and
1985, a claim under Section 1986 must be commenced within
one year after the cause of action has accrued. See 42 U.S.C.
§ 1986.
Although VBB fails to allege when it initially filed a
complaint with the SCPD, the events that form the basis
for its Sections 1983, 1985(3), and 1986 claims occurred
between 2007 and 2008. See Compl. ¶¶ 35-41. Plaintiff does
not dispute that it gained knowledge of the allegedly unlawful
activity at this time. Accordingly, the three-year limitations
period began no later than 2008, and ended in 2011. As a
result, the Complaint's federal law claims, which were filed
on September 5, 2016, over eight years later, are time-barred.
ii. The Continuing Violation Doctrine
Instead, Plaintiff argues that its federal law claims are saved
by the continuing violation doctrine. The Court disagrees.
Pursuant to the continuing violation doctrine, “[w]here a
plaintiff can demonstrate an ongoing or continuing violation
of his federally protected rights, the plaintiff is entitled
to bring suit challenging all conduct that was part of the
violation, even conduct that occurred outside the limitations
period.” Cornwell, 23 F.3d at 704. Generally, under the
continuing-violation doctrine, where there is an “ongoing
discriminatory policy or practice,” the accrual time for
the statute of limitations may be delayed until the last
act in furtherance of the policy.” Harris v. City of New
York, 186 F.3d 243, 248 (2d Cir. 1999). “[C]ourts of this
circuit consistently have looked unfavorably on continuing
violation arguments ... and have applied the theory only
under compelling circumstances.” Blankman v. Cnty. of
Nassau, 819 F. Supp. 198, 207 (E.D.N.Y. 1993). Compelling
circumstances have been found “where the unlawful conduct
takes place over a period of time, making it difficult to
pinpoint the exact day the violation occurred; where there
is an express, openly espoused policy [that is] alleged to
be discriminatory; or where there is a pattern of covert
conduct such that the plaintiff only belatedly recognizes its
unlawfulness.” Ruane v. Cty. of Suffolk, 923 F. Supp. 2d
454, 460 (E.D.N.Y. 2013) (internal quotations and citations
omitted). The Second Circuit has held that “a continuing
violation cannot be established merely because the claimant
continues to feel the effects of a time-barred discriminatory
act.” Harris, 186 F.3d at 250. Instead, to trigger the continuing
violation doctrine, a plaintiff must also allege some non-
time-barred acts taken in furtherance of a discriminatory
policy. See id. Moreover, the Second Circuit has made clear
that “[c]haracterizing defendants' separate wrongful acts as
having been committed in furtherance of a conspiracy or
as a series of interlocking events does not postpone accrual
of claims based on individual wrongful acts.” Singleton,
632 F.2d at 192 (internal quotations omitted). “To permit [a
plaintiff] to wait and toll the running of the statute simply
by asserting that a series of separate wrongs were committed
pursuant to a conspiracy would be to enable [plaintiff] to
defeat the purpose of the time-bar, which is to preclude the
resuscitation of stale claims.” Id.
*5 Here, VBB's allegations are insufficient to establish
a continuing violation. Plaintiff argues that the “SCPD
committed a continuing wrong up until November 2015
and that therefore, the statute of limitations runs from that
date.” VBB's Combined Memorandum of Law in Opposition
to the Defendants' Motion to Dismiss (“Pl.'s Opp.”) at 10.
Plaintiff also argues that it refrained from commencing a civil
action against the Private Defendants on the “belief that [the
Private Defendants] would be arrested and prosecuted.” Id.
VBB, however, does not dispute that it had knowledge of
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the requisite facts underlying its claims when it made its
initial complaint to the SCPD sometime in 2007 or 2008.
Further, Plaintiff fails to allege what constitutional wrongs
were committed by the Private and County Defendants in the
period between 2008 and September 2016, or identify any
compelling circumstances that would warrant the application
of the continuing violation doctrine. Finally, VBB's mistaken
belief that the Private Defendants would be arrested does
not constitute a continued wrongdoing; it is, instead, a
continued effect of the time-barred allegedly unlawful acts.
Accordingly, VBB has failed to demonstrate that tolling
the statute of limitations under the continuing violation
doctrine is warranted. Moreover, the Court recognizes that
the weight of authority in the Second Circuit appears to hold
that the continuing-violation doctrine may not be applied
to Section 1983 civil rights claims that do not involve
allegations of discrimination. See, e.g., Koehl v. Greene, No.
06-CV-0478, 2007 WL 2846905, at *8 (N.D.N.Y. Sept. 26,
2007) (collecting cases). Accordingly, even if the continuing
violation doctrine might otherwise be applicable, it would not
save Plaintiff's Section 1983 claims, which do not involve
allegations of unlawful discrimination.
iii. The Equitable Estoppel Doctrine
VBB also fails to demonstrate a basis for tolling the statute
of limitations under the doctrine of equitable estoppel. “The
doctrine of equitable estoppel applies where it would be
unjust to allow a defendant to assert a statute of limitations
defense ... [such as] where a plaintiff is induced by fraud,
misrepresentations or deception to refrain from filing a timely
action.” Good Luck Prod. Co. v. Crystal Cove Seafood
Corp., 60 F. Supp. 3d 365, 373 (E.D.N.Y. 2014) (quoting
Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429, 442 (S.D.N.Y.
2014) (internal quotation marks and citations omitted)). “To
invoke equitable estoppel, a plaintiff must show that: (1)
the defendant made a definite misrepresentation of fact, and
had reason to believe that the plaintiff would rely on it; and
(2) the plaintiff reasonably relied on that misrepresentation
to his detriment.” Tardd v. Brookhaven Nat'l Lab., 407 F.
Supp. 2d 404, 416 (E.D.N.Y. 2006) (internal quotation marks
and citation omitted). “Typically, the doctrine is invoked in
cases in which [a defendant] has made misrepresentations
concerning the statute of limitations or lulled the plaintiff
into believing that it was not necessary for him to commence
litigation.” Id. (internal quotation marks and citation omitted).
VBB's equitable estoppel argument fails as the Complaint
is devoid of any allegations of fraud, misrepresentation, or
deception that prevented the timely commencement of the
instant action. Plaintiff argues that it was “led by the SCPD
to believe that its investigation was active and ongoing and
that the wrongdoers would eventually be brought to justice,
thereby inducing [P]laintiff to defer from commencing a
civil action.” See Pl.'s Opp. at 9. However, VBB fails to
describe any statements or acts committed by the Private
or County Defendants that affirmatively concealed any facts
or prevented the timely commencement of a civil action.
Instead, as set forth above, it is undisputed that, since 2008,
VBB had knowledge of the requisite facts underlying its
claims. Plaintiff, therefore, has failed to demonstrate that it
was prevented in “some extraordinary way” from exercising
its rights in a civil action. See Pearl v. City of Long Beach,
296 F.3d 76, 85 (2d Cir. 2002). As a result, Plaintiff is unable
to invoke the doctrine of equitable estoppel as a means of
tolling the applicable statutes of limitations, and its Sections
1983, 1985, and 1986 claims are untimely. Accordingly,
Defendants' motions to dismiss VBB's federal claims as time-
barred are granted.
C. VBB's 42 U.S.C. § 1983 Claims
Alternatively, VBB's Complaint also fails to plausibly state a
cause of action pursuant to Section 1983. In the Complaint,
Plaintiff asserts multiple causes of action under 42 U.S.C.
§ 1983 against the County Defendants for: (1) violations of
the Equal Protection Clause of the Fourteenth Amendment
regarding its “class of one” claim; (2) violations of the
Due Process Clause of the Fourteenth Amendment; and (3)
municipal liability based on the SCPD's policy and practice
of improperly investigating alleged crimes. See Compl. The
Court considers each argument in turn.
i. 42 U.S.C. § 1983 Generally
*6 42 U.S.C. § 1983 provides, in relevant part, that:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ... subjects, or
causes to be subjected, any citizen of
the United States ... to the deprivation
of any rights, privileges, or immunities
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secured by the Constitution and laws,
shall be liable to the party injured....
42 U.S.C. § 1983. Although Section 1983 itself does not
create substantive rights, it does provide “a procedure for
redress for the deprivation of rights established elsewhere.”
Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To prevail
on a claim arising under 42 U.S.C. § 1983, a plaintiff must
demonstrate: “(1) the deprivation of any rights, privileges, or
immunities secured by the Constitution and its laws; (2) by a
person acting under the color of state law.” Hawkins v. Nassau
Cty. Corr. Facility, 781 F. Supp. 2d 107, 111 (E.D.N.Y. 2011)
(citing 42 U.S.C. § 1983). Further, “it is well-settled that
‘personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under §
1983.’ ” Jones v. Nassau County Sheriff Dep't, 285 F. Supp. 2d
322, 325 (E.D.N.Y. 2003) (quoting McKinnon v. Patterson,
568 F.2d 930, 934 (2d Cir. 1977)).
ii. Failure to Allege “Class of
One” Equal Protection Violations
Plaintiff has failed to adequately allege a “class of one”
claim. The Equal Protection Clause of the Fourteenth
Amendment guarantees “ ‘[the] right to be free from
invidious discrimination in statutory classifications and other
governmental activity.’ ” Bernheim v. Litt, 79 F.3d 318, 323
(2d Cir. 1996) (quoting Harris v. McRae, 448 U.S. 297, 322,
100 S. Ct. 2671, 2691 (1980)). “The [Clause] requires that the
government treat all similarly situated people alike.” Harlen
Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d
Cir. 2001); accord City of Cleburne, Texas v. Cleburne Living
Center, 473 U.S. 432, 105 S. Ct. 3249 (1985); Disabled
American Veterans v. United States Dep't of Veterans Affairs,
962 F.2d 136, 141 (2d Cir. 1992). Following the Supreme
Court's decision in Engquist v. Oregon Dep't of Agric, 553
U.S. 591, 603, 128 S. Ct. 2146, 2154 (2008), to succeed on
a “class of one” claim, a plaintiff must allege: (1) that it was
treated differently from others similarly situated in all relevant
respects; (2) that defendants had no rational basis for the
differential treatment; and (3) that the differential treatment
resulted from a non-discretionary state action. Seymour's
Boatyard, Inc. v. Town of Huntington, No. 08-CV-3248, 2009
WL 1514610, at *7 (E.D.N.Y. June 1, 2009).
Initially, the plaintiff “must demonstrate that [he was] treated
differently than someone who is prima facie identical in all
relevant respects.” Mangino v. Inc. Vil. of Patchogue, 739
F. Supp.2d 205, 255 (E.D.N.Y. 2010) (quoting Neilson v.
D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005)). This requires a
showing that the level of similarity between the plaintiff and
the person(s) with whom she compares herself is “extremely
high”-so high (1) that “no rational person could regard
the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy,”
and (2) that “the similarity in circumstances and difference
in treatment are sufficient to exclude the possibility that the
defendant acted on the basis of a mistake.” Id.
*7 Plaintiff's “class of one claim” fails for two reasons.
Initially, the Complaint fails to adequately allege the
existence and differential treatment of any similarly situated
individuals. See Fortress Bible Church v. Feiner, 694 F.3d
208, 222 (2d Cir. 2012) (“[A] class-of-one claim requires
a plaintiff to show an extremely high degree of similarity
between [himself] and [his] comparators.”) (internal citations
omitted). Here, VBB alleges that Dormer's relationship to
Caro “is the reason it was treated differently than other
victims of similar crimes in Suffolk County.” Compl. ¶ 68.
Even assuming a relationship between Dormer and Caro
existed, the Complaint, does not reference a person that
was a “victim[ ] of similar crimes” or how he was “treated
differently” by the SCPD. Accordingly, Plaintiff's claim fails
as it is unable to demonstrate the existence of and differential
treatment of similarly situated individuals.
Moreover, the SCPD's decision not to arrest the Private
Defendants constitutes a discretionary state action. See
DePietro v. City of N.Y., No. 09–CV–932, 2010 WL 449096,
at *10 (E.D.N.Y. Feb. 2, 2010) (“When officials act within
their discretion, basing their decision on a variety of factors
that could yield different results on a case by case basis, the
rationale of Engquist precludes a class of one challenge.”).
The duty to investigate possible criminal acts involves a
significant level of law enforcement discretion. See Town
of Castle Rock v. Gonzales, 545 U.S. 748, 760, 125 S. Ct.
2796, 2805 (2005) (observing that “[i]n each and every
state there are longstanding statutes that, by their terms,
seem to preclude nonenforcement by the police” but that,
“for a number of reasons, including their legislative history,
insufficient resources, and sheer physical impossibility,” such
statutes “clearly do not mean that a police officer may not
lawfully decline to make an arrest”) (alteration and internal
quotation marks omitted); Harrington v. County of Suffolk,
607 F.3d 31, 34 (2d Cir. 2010). Here, the decision to initiate
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and continue an investigation, such as the one involving VBB
and the Private Defendants, inherently rests upon a variety of
factors to be determined on a case-by-case basis. See Heckler
v. Chaney, 470 U.S. 821, 831–32, 105 S. Ct. 1649, 1656,
(1985) (finding that the courts are ill-equipped to deal with
the many variables involved in the proper ordering of law
enforcement priorities in light of finite resources). Therefore,
to the extent that VBB is challenging the SCPD's investigation
and subsequent decision not to make an arrest, the actions and
decisions taken are discretionary, and not subject to a “class of
one claim.” Accordingly, Plaintiff has failed to state a cause
of action for a violation of the Equal Protection Clause of the
Fourteenth Amendment, and the motion to dismiss this claim
is granted.
iii. Failure to Allege Due Process Violations
Plaintiff has also failed to state a claim for a violation of
the Due Process Clause under the Fourteenth Amendment.
While the Complaint does not assert a separate cause of action
for alleged Due Process violations, it does allege unspecified
violations of the Due Process Clause. See Compl. ¶¶ 45,
65, 80, 102. The Supreme Court has explained that, with
respect to a Due Process claim, “a benefit is not a protected
entitlement if government officials may grant or deny it in
their discretion,” id. at 756, 125 S. Ct. at 2804, and that a “well
established tradition” of police discretion has long existed.
See id. at 760, 125 S. Ct. at 2806. Accordingly, the Court has
declared that “the benefit that a third party may receive from
having someone else arrested for a crime generally does not
trigger protections under the Due Process Clause, neither in its
procedural nor in its substantive manifestations.” Id. at 768,
125 S. Ct. at 2810. Simply, there is “no constitutional right
to an investigation by government officials.” Stone v. Dep't
of Investigation of City of New York, No. 91 CIV. 2471, 1992
WL 25202, at *2 (S.D.N.Y. Feb. 4, 1992) (citing Gomez v.
Whitney, 757 F.2d 1005 (9th Cir. 1985)).
*8 Applying these principles, VBB does not have a
protected interest in the County Defendants' investigation or
the arrest of the Private Defendants. As stated above, the duty
to investigate possible criminal acts involves a significant
level of law enforcement discretion. See Castle Rock, 545
U.S. at 760, 125 S. Ct. at 2805. That discretion precludes any
“legitimate claim of entitlement” to a police investigation. See
id. at 756, 125 S. Ct. at 2804 (explaining that a discretionary
benefit is not a protected entitlement); see also Roth, 408
U.S. at 577, 92 S. Ct. at 2709. Accordingly, as VBB does
not have “a legitimate claim of entitlement” to a police
investigation, and as no procedural irregularities have been
alleged, it has failed to adequately allege a violation of the
Due Process Clause of the Fourteenth Amendment, and the
County Defendants' motion to dismiss this cause of action is
granted.
iv. Municipal Liability Arising Under 42 U.S.C. § 1983
Plaintiff's claim of municipal liability under 42 U.S.C. §
1983 is also untenable. A municipality may not be held
liable under Section 1983 on a respondeat superior theory
of liability. Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S.
658, 690-91, 98 S. Ct. 2018, 2036 (1978); see also Genovese
v. Town of Southampton, 921 F. Supp. 2d 8, 24 (E.D.N.Y.
2013) (“[A] municipal entity may only be held liable where
the entity itself commits a wrong; a municipality cannot be
held liable under § 1983 on a respondeat superior theory.”)
(internal quotation omitted). To state a claim for municipal
liability, a plaintiff must allege “(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.” Torraco v. Port Authority of
New York & New Jersey, 615 F.3d 129, 140 (2d Cir. 2010)
(citing Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007)); see Norton v. Town of Islip, 97 F. Supp. 3d 241, 264
(E.D.N.Y. 2015), reconsideration denied, 12 CV 4463, 2016
WL 264930 (E.D.N.Y. Jan. 21, 2016), aff'd, 16-490-CV, 2017
WL 440131 (2d Cir. Feb. 1, 2017) (citing Monell, 436 U.S.
at 690-91, 98 S. Ct. at 2036; Lamont v. City of New York,
12-CV-2478, 2014 WL 4829328, at *7 (E.D.N.Y. Sept. 29,
2014)).
Moreover, though Section 1983 does not require application
of a heightened pleading standard to allege municipal liability,
a complaint does not “suffice if it tenders naked assertion[s]
devoid of further factual enhancement.” Iqbal, 556 U.S. at
678, 129 S. Ct. at 1937 (alteration in original) (internal
citations and quotation marks omitted); see Leatherman v.
Tarrant Cnty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 168, 113 S. Ct. 1160, 1163 (1993). Thus,
Plaintiff cannot simply allege the existence of a policy and/or
custom without putting forth “facts tending to support, at least
circumstantially, an inference that such a municipal policy or
custom exists.” Santos, 847 F. Supp. 2d at 576 (citing Dwares
v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993), overruled
on other grounds by Leatherman, 507 U.S. at 164, 113 S.
Ct. at 1163-64). Simply asserting that the alleged violations
could not have occurred unless supervisors and policy makers
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tolerated them is insufficient to demonstrate the existence of
such a custom unless the assertion is clearly supported by an
articulated factual context. See Missel v. Cnty. of Monroe, 351
Fed.Appx. 543, 545 (2d Cir. 2009); Duncan v. City of New
York, 11-CV-3826, 2012 WL 1672929, at *3 (E.D.N.Y. May
14, 2012) (holding that “boilerplate statements” claiming that
the city has a custom of making and tolerating false arrests
and of using excessive force “are insufficient to state a claim
of municipal liability under Monell”); Bradley v. City of
New York, 08-CV-1106, 2009 WL 1703237, at *3 (E.D.N.Y.
June 18, 2009) (“The Complaint's conclusory, boilerplate
language—that the City ‘fail[ed] to adequately discipline and
supervise’ employees and ‘fail[ed] to promulgate and put
into effect appropriate rules and regulations applicable to the
duties and behavior’ of its employees—is insufficient to raise
an inference of the existence of a custom or policy, let alone
that such a policy caused Plaintiff to be arrested without
probable cause.”) (internal citations omitted).
*9 A policy or custom for purposes of municipal liability
under Section 1983 need not be explicit however. Sorlucco
v. N.Y.C. Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992).
Rather, a policy or custom may be inferred from constitutional
violations that are so “persistent and widespread” that they
“practically have force of law.” Davis v. City of New York, 959
F. Supp. 2d 324, 338 (S.D.N.Y. 2013). Accordingly, “a single
incident involving an employee below the policymaking level
will not suffice to support an inference of municipal custom
or policy.” Brewster v. Nassau County, 349 F. Supp. 2d 540,
549 (E.D.N.Y. 2004) (quoting Vann v. City of New York, 72
F.3d 1040, 1050 (2d Cir. 1995)).
A municipality may also be held liable where it demonstrates
a “manifest failure to train, supervise or discipline [its]
employees.” Mahan v. City of New York, No. 00-CV-6645,
2005 WL 1677524, at *3 (E.D.N.Y. July 19, 2005) (citing
Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427,
2436 (1985)). In such cases, an inference of a municipal
custom or policy may
be drawn from circumstantial proof,
such as evidence that the municipality
so failed to train its employees as
to display a deliberate indifference
to the constitutional rights of those
within its jurisdiction, or evidence
that the municipality had notice of
but repeatedly failed to make any
meaningful investigation into charges
that its agents were violating citizens'
constitutional rights.
DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); see also
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“We
have held that municipal inaction such as the persistent failure
to discipline subordinates who violate civil rights could give
rise to an inference of an unlawful municipal policy or
ratification of unconstitutional conduct within the meaning
of Monell.”). However, “[o]nly where a failure ... reflects a
deliberate or conscious choice by a municipality ... can a city
be liable for such a failure under § 1983.” City of Canton v.
Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 1205 (1989); see
also Triano v. Town of Harrison, 895 F. Supp. 2d 526, 538
(S.D.N.Y. 2012) (“A municipality may be liable for the failure
to supervise or discipline its employees only where the need to
act is so obvious, and the inadequacy of the current practices
so likely to result in a deprivation of federal rights, that the
municipality or official can be found deliberately indifferent
to the need.”) (internal quotation omitted).
Applying these standards, VBB has failed to state a claim
for municipal liability under Section 1983. As to municipal
liability, Plaintiff alleges that the SCPD has adopted: (1)
careless and reckless policies, customs, or practices, that
include, among other violations, a policy for stalling and
impeding criminal investigations; (2) a policy of refusing
to remove conflicted police officers when required; (3) a
policy of permitting its officers to protect individuals who
commit crimes with whom they are connected in an effort
to shield such individuals from prosecution; (4) a policy of
permitting its officers to intentionally manipulate evidence
and withhold documentation in an effort to protect individuals
who commit crimes and with whom they are connected in
an effort to shield such individuals from prosecution; and (6)
a policy of failing to properly discipline its police officers
for their wrongdoing, improper investigation techniques and
other violations. Plaintiff, however, fails to state any facts
that support the allegations that the SCPD has adopted
and implemented any of the above-mentioned policies. See
Zahra v. Town of Southhold, 48 F.3d 674, 685 (2d Cir.
1995) (“[A]ssertion[s] ... that a municipality has such a
custom or policy is insufficient in the absence of allegations
of fact tending to support, at least circumstantially, such
an inference.”). Instead, it appears that VBB attempts to
impermissibly infer a policy from the alleged violation of
its own civil rights. See Anderson v. City of New York,
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657 F. Supp. 1571, 1574 (S.D.N.Y. 1987) (“Plaintiff cannot
infer a policy from the alleged violation of his own civil
rights.”). Therefore, at most, Plaintiff has identified a single
alleged incident which is insufficient to state a claim for
municipal liability. See Tuttle, 471 U.S. at 814, 105 S. Ct.
at 2431 (“Proof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell.”).
Accordingly, the County Defendants' motion to dismiss
Plaintiff's municipal liability claim is also granted.
D. VBB's 42 U.S.C. § 1985(3) Claims
*10 All Defendants also move to dismiss VBB's conspiracy
claims pursuant to 42 U.S.C. § 1985(3) for failure to state
a cause of action. To state a valid claim pursuant to Section
1985(3) a plaintiff must allege:
(1) a conspiracy, (2) for the purpose
of depriving any person or class of
persons of the equal protection of
the laws or of equal privileges and
immunities under the laws, (3) an act
in furtherance of the conspiracy, and
(4) whereby a person is injured in his
person or property or deprived of a
right or privilege of a citizen.
Turkmen v. Hasty, 789 F.3d 218, 262 (2d Cir. 2015). To
prevail on a claim under 42 U.S.C. § 1985(3), “the conspiracy
must also be motivated by ‘some racial or perhaps otherwise
class-based, invidious discriminatory animus behind the
conspirators’ action.” Thomas v. Roach, 165 F.3d 137, 146
(2d Cir. 1999) (quoting Mian v. Donaldson, Lufkin & Jenrette
Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)). VBB alleges
that the Private and County Defendants' actions contained the
“necessary ‘invidiously discriminatory animus’ necessary to
support” a Section 1985(3) claim. The Complaint, however,
fails to allege that Defendants acted with any racial or class-
based invidious discriminatory motivation. Accordingly,
Plaintiff has failed to adequately state a Section 1985(3) claim
and this claim is dismissed.
E. Plaintiff's 42 U.S.C. § 1986 Claims
As VBB has failed to adequately plead a violation of Section
1985, its Section 1986 claim is similarly invalid. 42 U.S.C. §
1986 imposes liability on an individual who has knowledge
of discrimination prohibited under 42 U.S.C. § 1985. Graham
v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996). Accordingly,
Section 1986 claim is contingent upon a tenable Section 1985
claim. See Mian, 7 F.3d at 1088 (finding that Section 1986
claims are contingent upon a valid section 1985 claim). As
a result, having found that VBB fails to state a claim under
Section 1985, its Section 1986 claim must also be dismissed.
F. Qualified Immunity and the Individual County
Defendants
Defendants further argue that Plaintiff's claims against
Dormer and Gabrielle arising under Section 1983 should be
dismissed pursuant to the doctrine of qualified immunity.
See County Defs.' Mem. at 20-21. The doctrine of qualified
immunity “protects government officials from suit if their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154
(2d Cir. 2013) (internal quotation omitted). A police officer
is entitled to qualified immunity if he establishes “either
that his conduct did not violate ‘clearly established rights’
of which a reasonable person would have known, or that it
was ‘objectively reasonable’ to believe that his acts did not
violate these clearly established rights.” Landy v. Irizarry,
884 F. Supp. 788, 800 (S.D.N.Y. 1995) (quoting Finnegan v.
Fountain, 915 F.2d 817, 818 (2d Cir. 1990)). In determining
whether the doctrine of qualified immunity applies, courts
consider: “(1) whether a plaintiff has shown facts making
out a violation of a constitutional right; (2) if so, whether
that right was clearly established; and (3) even if the right
was clearly established, whether it was objectively reasonable
for the officer to believe the conduct at issue was lawful.”
Deanda v. Hicks, 137 F. Supp. 3d 543, 561 (S.D.N.Y. 2015)
(quoting Gonzalez, 728 F.3d at 154). An officer's actions are
objectively reasonable “if officers of reasonable competence
could disagree on the legality of the defendant's actions.”
Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 216 (2d Cir.
2000) (internal quotation omitted). On a motion to dismiss,
“[t]he initial question with respect to qualified immunity is
whether, viewing the facts alleged in the light most favorable
to the plaintiff, there was a constitutional violation.” Fierro
v. City of New York, 341 Fed.Appx. 696, 698 (2d Cir. 2009)
(citing Clubside, Inc. v. Valentin, 468 F.3d 144, 152 (2d Cir.
2006)). Here, as VBB has failed to allege an underlying
constitutional violation, an inquiry on the issue of qualified
immunity is unnecessary. See Pearson v. Callahan, 555 U.S.
223, 243, 129 S. Ct. 808, 822 (2009) (citing Saucier v. Katz,
533 U.S. 194, 194, 121 S. Ct. 2151, 2152 (2001)).
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G. Supplemental Jurisdiction Over State-Law Claims
*11 Having concluded that each of Plaintiff's federal claims
against the moving Defendants must be dismissed, the
Court declines to exercise supplemental jurisdiction over
any remaining state law causes of action. Supplemental
jurisdiction over Plaintiff's state-law claims is governed by 28
U.S.C. § 1367, which provides that, “in any civil action of
which the district courts have original jurisdiction, 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 ...” 28 U.S.C. § 1367(a). However, a district court
may decline to exercise supplemental jurisdiction where,
as here, all claims over which it had original jurisdiction
have been dismissed. 28 U.S.C. § 1367(c). When such
circumstances arise prior to the commencement of trial,
Second Circuit precedent consistently recognizes that, “the
balance of factors to be considered,” which includes “judicial
economy, convenience, fairness and comity,” “will point
toward declining to exercise jurisdiction over the remaining
state-law claims.” Valencia v. Lee, 316 F.3d 299, 305 (2d Cir.
2003).
The County and Private Defendants' filed their Rule 12
motions to dismiss the Complaint in lieu of an Answer. See
DE [31], [34], [38]. Thus, this litigation is still in its initial
stages and no discovery has taken place. Accordingly, the
Court grants the Private and County Defendants' motions to
dismiss as to Plaintiff's federal claims and declines to exercise
supplemental jurisdiction over VBB's state-law causes of
action.
H. Leave to File an Amended Complaint
While leave to amend a complaint should be freely given
“when justice so requires,” Fed. R. Civ. P. 15(a)(2), it is
“within the sound discretion of the district court to grant
or deny leave to amend.” McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 200 (2d Cir. 2007). Consistent with this
principle, “a district court may deny leave to amend when, as
here, amendment would be futile because the problem with
the claim ‘is substantive ... [and] better pleading will not cure
it.’ ” Reynolds v. City of Mount Vernon, 14-CV-1481, 2015
WL 1514894, at *5 (S.D.N.Y. Apr. 1, 2015) (quoting Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
The Court finds that the deficiencies in VBB's pleadings
are substantive and, due to the untimely and untenable
nature of its claims, any subsequent amendments would be
futile. Additionally, in its opposition VBB has not requested
permission to file an amended complaint, nor has it “given
any indication that it is in possession of facts that would
cure the problems identified in this opinion.” Clark v. Kitt,
12-CV-8061, 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15,
2014). Accordingly, as the facts present in the pleadings
“give[ ] no indication that a valid claim may be stated,” the
Court denies Plaintiff leave to amend. See Flaherty v. All
Hampton Limousine, Inc., 02-CV-4801, 2008 WL 2788171,
at *8 (E.D.N.Y. July 16, 2008).
V. CONCLUSION
Based on the foregoing, the Court hereby grants the motions
to dismiss the Complaint for failure to state a claim in their
entirety with prejudice.
All Citations
Not Reported in Fed. Supp., 2017 WL 4122616
Footnotes
1 Pro se Defendant Joseph Holstein interposed an Answer, see DE [23], but did not file a motion to dismiss.
Defendant Kieran Rodgers has failed to respond or otherwise appear in this matter. Nevertheless, because
the federal law claims that establish subject matter jurisdiction are dismissed for the reasons set forth below,
and the Court declines to exercise supplemental jurisdiction over the state law claims against Holstein and
Rodgers, their failure to file a motion to dismiss does not save any of Plaintiff's claims in this Court.
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2 In response to the Creighton Affidavit in Support, submitted by the County Defendants, VBB submitted the
Creighton Affidavit in Opposition, of which the latter clarifies and expands on information propounded in the
former.
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Walker v. CIBC Limited, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 3518439
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Myrna Althia Alicia WALKER, Plaintiff,
v.
CIBC LIMITED, Defendant.
1:20-CV-1337 (TJM/CFH)
|
Signed 04/13/2021
Attorneys and Law Firms
Myrna Althia Alicia Walker, 841 Western Avenue, Apartment
2A, Albany, New York 12203, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, UNITED STATES
MAGISTRATE JUDGE
I. In Forma Pauperis
*1 Plaintiff pro se Myrna Althia Alicia Walker purported
to commence this action on October 28, 2020, by submitting
a complaint and application to proceed in forma pauperis
(“IFP”) in lieu of paying the Court's filing fee. See Dkt.
No. 1 (“Compl.”); Dkt. No. 2. On March 15, 2021, plaintiff
submitted a supplement to her complaint. Dkt. No. 4. On
April 6, 2021, plaintiff submitted an additional filing entitled
“Emergency Petition for the Death Penalty Against Adethia
Keshia Fitten and Others on the Principle Found in the Law of
Necessity.” Dkt. No. 5. On April 7, 2021, plaintiff submitted
additional 86 pages to supplement to her complaint. Dkt. Nos.
6, 7. On April 8, 2021, plaintiff submitted additional exhibits
and a letter requesting to file those exhibits under seal. Dkt.
No. 8.
The Court has reviewed plaintiff's IFP application and
determines that she financially qualifies to proceed IFP for
purposes of filing only. 1
II. Legal Standards
Section 1915(e) of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (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). It is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting her to proceed with her action. As plaintiff
is representing himself, the court must afford plaintiff special
solicitude; thus, it is to consider her claims “liberally” and
“interpret them ‘to raise the strongest arguments that they
suggest.’ ” Cold Stone Creamery, Inc. v. Gorman, 361 F.
App'x 282, 286 (2d Cir. 2010) (summary order) (quoting
Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)).
Pleading guidelines are set forth in the Federal Rules of
Civil Procedure. Specifically, Rule 8 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 ... is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to
file a responsive answer, prepare an adequate defense and
determine whether the doctrine of res judicata is applicable.”
Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999)
(internal quotation marks and citations omitted). Rule 8 also
requires the pleading to include:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought ....
FED. R. CIV. P. 8(a). Although “[n]o technical form is
required,” the Federal Rules make clear that each allegation
contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d).
*2 Further, Rule 10 of the Federal Rules provides in
pertinent part that:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
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pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of defendants’ duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
In such cases of dismissal, particularly when reviewing a pro
se complaint, the court generally affords the plaintiff leave to
amend the complaint. Simmons v. Abruzzo, 49 F.3d 83, 86-87
(2d Cir. 1995). 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) (citation omitted).
III. Initial Review
A. Plaintiff's Complaint
Plaintiff purports to bring this action pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
2000, et seq. On her form Title VII complaint, she indicates
that defendant discriminated against her due to her race
and color, religion, sex, and “my date of birth – Easter.”
Compl. at 2. Plaintiff further indicates, through checking the
boxes on the form complaint, that defendant terminated her
employment, failed to promote, engaged in unequal terms and
conditions of employment, retaliated against her, and “forced
prostitution; [i]dentity theft, which is used to do Bank frauds
& Poisonings.” Id.
Plaintiff's complaint, inclusive of exhibits, is 158 pages long.
Dkt. No. 1. Included with the exhibits to the complaint is
an Equal Employment Opportunity Commission (“EEOC”)
dismissal notice 2 noting that plaintiff's EEOC charge was
not timely filed and the EEOC was closing its file. Dkt.
No. 1-1. The remainder of the exhibits appended to the
complaint appear to be an 80-page letter relating to apparent
visa fraud that plaintiff sent to The US Department of
Justice; the United States Department of Homeland Security,
Immigration and Customs Enforcement; and the Federal
Bureau of Investigation; as well as an incident report dated
May 29, 2019, regarding an apparent rape of plaintiff. Dkt.
No. 1-2 at 81-82.
*3 The supplement plaintiff filed on March 15, 2021, is
112 pages long. Dkt. No. 4. The supplement appears to be
filings from a complaint plaintiff had before Supreme Court,
Rensselaer County against Unity House of Troy and Joseph
Posa. Id. The “emergency motion,” filed on April 4, 2021,
is 22 pages long, with 70 additional pages of exhibits. Dkt.
No. 5. These exhibits are (1) various transfer orders and
orders of protection plaintiff either sought or obtained against
various individuals in family court proceedings in different
counties (dkt. no. 5-1); (2) a residential lease agreement
from July 2018, for a property in Troy, New York, with
landlord Joseph Posa (dkt. no. 5-2); (3) records from a
proceeding before the Rensselaer County Supreme Court in
a case captioned Myrna Althia Alicia Walker vs. “Change
of Name” Heidi Elizabeth Zuach (dkt. no. 5-3); and (4)
a lease agreement dated May 2, 2017, between Capital
Group Management LLC and plaintiff for a property in Troy,
New York (dkt. no. 5-4). The submission filed on April
7, 2021, is 59 pages long and includes various orders of
protection, a USPS tracking number report, a Unity House
Domestic Violence Services Transitional Housing Program
Handbook, a form from the Rensselaer County Department
of Social Services, earnings statements, a New York State
incident report from 2018, an eviction notice, a letter from the
Unity House Transitional Housing program, a “notice” letter,
and a “birth registration” form. Dkt. No. 6-6. The exhibits
filed on April 7, 2021, appear to be letters plaintiff sent
to the New York State Department of Labor, United States
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Department of Homeland Security, Immigration and Customs
Enforcement, and the EEOC, apparently related to “pandemic
unemployment compensation benefits.” See dkt. no. 7.
Plaintiff's complaint discusses Allison Carolyn Rattray,
the Corporate Secretary and Legal Counsel of defendant
CIBC First Caribbean International Bank (Jamaica) Limited.
Dkt. No. 1 at 3. Plaintiff contends that Ms. Rattray kills
unidentified people “with her married name” and drinks
plaintiff's blood. Id. Apparently, plaintiff contends that Ms.
Rattray is or was her “employer” who “uses the drinking
blood of the employee to kill the employing the employment
agreement and the incomes paid by direct deposit as the
consideration for the blood that is drank before the killings
and the doomings if [sic] innocent persons.” Id. at 4. Plaintiff
also appears to suggest that Ms. Rattray and her husband,
“Barrington Andrew Rattray, Senior Judge, The Commercial
Division, The Supreme Court of Jamaica,” force plaintiff to
use “illegal psychotropic medicines,” cocaine, and alcohol.
Id. at 5. Plaintiff refers to an employment agreement she
signed with Ms. Rattray in 1995 and appears to suggest that
since that date, Ms. Rattray “has been stalking the Plaintiff
inside her bedroom, bathroom mirror, on her cell phone from
1995 even until today October 20, 2020 even the bathroom
stables has visual and audio devices inside of them.” Id. at
6. The Complaint then appears to proceed to explain why
Ms. Rattray and her various family members are carrying out
unspecified killings. See generally Dkt. No. 1. Plaintiff further
suggests that through her employment with defendant, both
defendant and the Commercial Division of the Supreme Court
of Jamaica
has been using me as a sex doll;
as sex services; as sex product also
incorporating The University of the
West Indies Hospital to do surgeries;
using illegal force of The Jamaican
police; using the illegal Force of the
Jamaican Army; using the illegal force
of the Jamaican parliament to have
men from any where have sex with
The Plaintiff because The Plaintiff was
born on the day the crucifixion was
celebrated, that is Easter and Good
Friday.
Id. at 13. Plaintiff asks the Court for
an Injunction to stop, restrain and
prevent Allison Carolyn Rattray
(maiden name Smith), Corporate
Secretary and Legal Counsel, CIBC
FirstCarribean Jamaica; her husband,
Barrington Andrew Rattray, Senior
Judge, The Commercial Division, The
Supreme Court of Jamaica, King
Street, Kingston, Jamaica, West Indies
Deryke Smith, her brother; Lacelles
Smith retired lecturer The University
of the West Indies, Jamaica, West
Indies; and the Rhoda Ford children
and others from practicing their
religion in a way that results in the
death or harm or injury of The Rights
of The Plaintiff and or the mother of
The Plaintiff and or the siblings of The
Plaintiff; and or any member of The
Public, which includes anyone in the
global community.
Id. at 14.
As for plaintiff's causes of action, plaintiff lists:
forced religion imposed on The
Plaintiff whom is the employee by
The Employer, CIBC Limited. The
Forced Religion imposed on Myrna
Althia Alicia Walker [ ] to kill innocent
Persons. The daily murders of innocent
Persons is used to supply the demands
of the global organ Donor list. The
staff is Allison Carolyn Rattray.
*4 Dkt. No. 1 at 69. As for a second cause of action is
employment discrimination – I chose a
career path to be an Attorney-At-Law.
Allison Carolyn Rattray (maiden name
Smith) my (former) then manager at
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CIBC had be fired; told me that (1) I
am not worthy to be an Attorney-at-
Law because of my Race (2) I was not
worthy to be in the same Profession
as her. She has been defaming my
character ever since.
Id. at 70. Third cause of action is listed as employment
discrimination - compensation: denied increases in my salary
verbally communicated to be by Ms. Cherlyn Blackman
my Senior Manager of 3% in 2004; Denied Promotion
communicated to be my Human Resources Regional Director,
Jerime Cjnttihs-Bell; denied fringe benefits that accompanied
my five (5) CIBC Achievers awards – my salary was split
and part paid to my aunt.” Id. In the prayer for relief, plaintiff
requests:
(1) an Injunction(s) for Criminal
Indictment(s) of Allison Carolyn
(Smith) Rattray, Corporate Secretary
and Legal Counsel CIBC for her
forced Prostitution of The Plaintiff and
Others; (2)An Injunction to prevent
and stop all Prostitution or abuse of
The Plaintiff; (3) Restitution(s) by
CIBC for lost Incomes and fringe
benefits[; and] (4) Job Reference letter
from CIBC and an apology and my
land Title Deed.
Id. at 71.
B. Analysis
First, plaintiff's complaint fails to meet the pleading
requirements of Rules 8 and 10. Her complaint does not
present a short and plain statement of the claim showing that
she is entitled to relief. FED. R. CIV. P. 8. Further, she does
not present her claims in numbered paragraphs, limited to one
“circumstance” per paragraph. FED. R. CIV. P. 10. Instead,
her complaint is a lengthy, disjointed, difficult to follow
narrative. Her complaint clearly “presents far too a heavy
burden in terms of defendants’ duty to shape a comprehensive
defense and provides no meaningful basis for the Court to
assess the sufficiency of their claims.” Gonzales, 167 F.R.D.
at 355.
Second, plaintiff's claims, insofar as she seeks to bring them
under Title VII are (1) barred by the statute of limitations,
and (2) fail to state a claim for employment discrimination in
violation of Title VII. 3 To the extent plaintiff suggests that
she was discriminated against in violation of Title VII insofar
as she was told that she was inadequate due to her race or
denied promised promotions because of her race, dkt. no. 1 at
70, even if plaintiff could provide additional factual support
and clarification for the alleged discrimination, plaintiff
provides that the alleged discrimination occurred as early
as 1995 until 2004, and would be beyond the statute of
limitations of Title VII. Indeed, plaintiff's entire employment
with defendant occurred outside of the statute of limitations as
she suggests that her employment began in January 1995 and
that she was terminated in March 2009. Dkt. No. 1 at 52-53.
Thus, the complained-of actions occurred more than 300 days
prior to when plaintiff appears to have filed a complaint with
the EEOC. See Gunning v. New York State Just. Ctr. for
Prot. of People with Special Needs, No. 1:19-CV-1446 (GLS/
CFH), 2020 WL 5203673, at *3 (N.D.N.Y. Sept. 1, 2020)
(“Title VII's statute of limitations bars claims based upon
events that occurred more than 300 days prior to filing a
charge of discrimination with a state or local employment
agency, and, therefore, “[a] plaintiff may bring a claim under
Title VII only for acts of discrimination that occurred within
the statutory period set by 42 U.S.C. § 2000e–5(e)(1).”)
(quoting Patterson v. Cnty. of Oneida, 375 F.3d 206, 220
(2d Cir. 2004)). The undersigned notes that plaintiff does not
indicate when she filed a complaint with the EEOC. However,
she submits the EEOC's dismissal letter, dated September
10, 2020, which states that plaintiff did not timely file a
complaint with the EEOC. Dkt. No. 1-1. As plaintiff likely
filed her EEOC complaint in 2020, 4 appears to have been
last employed by defendant in 2009, and complains of alleged
employment discrimination occurring as early as 1995, her
filing of an EEOC complaint in 2020 is clearly more than
300 days after the alleged discrimination occurred. Thus, any
cognizable Title VII claims arising out of her employment
with defendant are barred by the statute of limitations.
*5 However, even if the statute of limitations was not an
issue, plaintiff's claims still must fail because plaintiff's claims
fail to state any cognizable legal claim under the United States
Constitution, federal statute, or state law, and ultimately fails
establish this Court's jurisdiction under federal question or
diversity jurisdiction. 5 Plaintiff makes several disjointed,
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confusing claims about being sold as a prostitute against
her will by defendant's employees and other nonparties,
defendant's employees and others murdering innocent people,
defendant's employees drinking plaintiff's blood, and being
stalked and prostituted by various officials from Jamaica and
employees of defendant's company. See generally dkt. nos.
1, 4, 6, 7. Plaintiff makes several allegations against her
former supervisor, Ms. Rattray, and says the various physical
wrongdoings Ms. Rattray committed against plaintiff were all
due to “The employment agreement between The Plaintiff and
CIBC FirstCarribean Jamaica.” Dkt. No. 1 at 60-61. Although
plaintiff's submissions seem to suggest that she was employed
by defendant at some point in time, and that a supervisor told
her she could not be a lawyer due to her race and denied
promised salary increases for unclear reasons, nothing about
the factual allegations pleadings suggest that she presents a
valid employment discrimination claim under Title VII or any
other statute.
The Court is at a loss as to how the allegations in the complaint
relate to a valid employment discrimination claim or any valid
legal claim. Plaintiff presents a difficult to comprehend series
of allegations against various individuals – many of whose
connections to her apparent former employer is difficult, if not
impossible, to comprehend – who she alleges forced her into
prostitution, performed plastic surgeries on her against her
will, installed “spying devices” into plaintiff's body, forced
her to undergo various injections, and involved plaintiff in
murder scheme that is somehow related to her Easter birthday.
See Dkt. No. 1 at 56-60. Plaintiff also sets forth unexplained
allegations that appear to involve Ms. Rattray and others,
such as “an abuse of a veteran of the United States Army
by the said Allison Carolyn Rattray” (dkt. no. 1 at 54).
Plaintiff submits dozens of pages of exhibits and supplements
that appear to relate to cases filed in other courts, orders of
protection obtained in other courts, unemployment insurance
issues, police reports, and documents sent to various federal
agencies. See dkt. nos. 4, 5, 6, 7. The relevance of this deluge
of documents is entirely unclear.
Further, to the extent plaintiff requests injunctions (dkt. no.
1 at 71) to prevent defendant's employees from prostituting
or harming plaintiff or seeks some kind of prosecution
of defendant's employees for criminal conduct, this Court
does not have authority to direct persons to cease engaging
in illegal activity through a civil suit as it is not a law
enforcement agency. It appears plaintiff is either seeking
the criminal prosecution of an individual or individuals or a
law enforcement investigation, which is beyond this Court's
jurisdiction. See generally Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another.”); McFadden v. Ortiz, 5:12-CV-1244(MAD/ATB),
2013 WL 1789593 (N.D.N.Y. Apr. 26, 2013) (noting that
there is no private right of action to enforce either state or
federal criminal statutes).
Next, plaintiff files an “emergency motion” for the Death
Penalty, 6 which appears to ask the United States Supreme
Court to enforce the death penalty against various individuals
who plaintiff contends engaged in “drug assisted surgeries
on The Plaintiff herein to induce The Coronavirus ahead of
the proposed mass vaccination of the US public, which is
set for May 1, 2021[,]” implanting maggots into plaintiff's
bones, releasing poisons into plaintiff's body, “install[ing]
television” and “Netflix Television” into plaintiff's eye and
spinal cord, “alter[ing]” plaintiff's “joints to make [her] walk
in [sic] all four” to be “displayed as a naked dog on a lease
[sic],” and other similar allegations. See Dkt. No. 5. As
discussed above, this Court does not have the authority or
jurisdiction to sua sponte impose the death penalty in a civil
case nor can it seek the criminal prosecution of individuals or
at the request of a plaintiff or decide the ultimate punishment
if convicted after a criminal trial.
*6 Generally, in cases involving pro se plaintiffs, a court
should not dismiss a complaint 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). However, 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.”
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.”). The Court, however, also has an
overarching obligation to determine that a claim is not legally
frivolous before permitting a pro se plaintiff's complaint
to proceed. See, e.g., Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding
that a district court may sua sponte dismiss a frivolous
complaint, notwithstanding the fact that the plaintiff paid
the statutory filing fee). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of
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the complaint.’ ” Aguilar v. United States, 99-MC-0304, 99-
MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”);
Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision
that a complaint is based on an indisputably meritless legal
theory for purposes of dismissal under section 1915(d), may
be based upon a defense that appears on the face of the
complaint.”). Thus, although the Court must show special
solicitude to pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and is to exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond, ...” Anderson v. Coughlin, 700 F.2d
37, 41 (2d Cir. 1983) (internal citations omitted), the Court
also has a responsibility to determine that a claim is not
frivolous before permitting a plaintiff to proceed with an
action in forma pauperis.
Even if, arguendo, the statute of limitations was not a
jurisdictional bar and plaintiff had been able to establish this
Court's jurisdiction, the undersigned would still recommend
dismissal with prejudice on its initial review as plaintiff's
complaint is “factually frivolous.” See Bennett v. Mnuchin,
6:20-CV-243 (BKS/TWD), 2020 WL 1674068 (citing
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)) (holding
that a court may dismiss a factually frivolous claim when
the allegations are “clearly baseless,” including claims that
“describ[e] fantastic or delusional scenarios.”); Brown v.
New York State Educ. Dept., 8:18-CV-169 (TJM/CFH), 2018
WL 1865547, at *2 (N.D.N.Y. Mar. 19, 2018) (dismissing
pro se plaintiff's complaint with prejudice where “it is clear
that no federal claim can be stated on these facts[.]”).
Accordingly, the undersigned recommends dismissal with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as any
leave to amend would be clearly futile.
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's in forma pauperis application
(dkt. no. 2) be granted for purposes of filing only; and it is
RECOMMENDED, that plaintiff's complaint (dkt. no. 1) be
DISMISSED WITH PREJUDICE; and it is further
RECOMMENDED, that plaintiff's “Emergency Motion for
the Death Penalty” (dkt. no. 5) be DISMISSED; and it is
further
RECOMMENDED, that plaintiff's letter motion to file
exhibits under seal (dkt. no. 8) be DISMISSED AS MOOT.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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). 7
All Citations
Not Reported in Fed. Supp., 2021 WL 3518439
Footnotes
1 Plaintiff is still financially responsible for any other fees or costs she may incur.
2 It appears that the EEOC dismissal notice is dated September 10, 2020. Dkt. No. 1-1.
3 A plaintiff establishes “a prima facie case of discrimination by showing that (1) he is a member of a protected
class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an
adverse employment decision or action; and (4) the decision or action occurred under circumstances giving
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rise to an inference of discrimination based on his membership in the protected class.” Dawson v. Bumble
& Bumble, 398 F.3d 211, 216 (2d Cir. 2005) overruled on other grounds Zarda v. Altitude Express, Inc., 883
F.3d 100 (2d Cir. 2018).
4 As the EEOC dismissal notice is dated September 10, 2020, the Court makes the reasonable inference that
plaintiff filed her EEOC complaint some time in 2020.
5 Even if this Court were to assess this case as seeking to proceed under diversity jurisdiction pursuant to 28
U.S.C. § 1332(a), the plaintiff has also failed to set forth a cognizable state law claim. Scherer v. Equitable Life
Assur. Soc'y of the United States, 347 F.3d 394, 397 (2d Cir. 2003) (quoting 28 U.S.C. § 1332(a)) (noting that
diversity jurisdiction “confers original jurisdiction on the federal district courts with respect to ‘all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and
is between ... citizens of different States.’ ”).
6 This “emergency motion” notes that it is presented to the United States Supreme Court, but contains a caption
including this Court. It is unclear if this is a document plaintiff intends to submit before this Court, or before
the United States Supreme Court. See dkt. no. 5.
7 If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three (3)
additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from
the date the Report-Recommendation & 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. Id. § 6(a)(1)(c).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Walker v. CIBC Limited, Not Reported in Fed. Supp. (2021)
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2021 WL 3204860
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Myrna Althia Alicia WALKER, Plaintiff,
v.
CIBC LIMITED, Defendant.
1:20-CV-1337 (TJM/CFH)
|
Signed 07/29/2021
Attorneys and Law Firms
Myrna Althia Alicia Walker, Albany, NY, Pro Se.
DECISION and ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 This case was before the Hon. Christian F. Hummel,
United States Magistrate Judge, for an initial review of
plaintiff's complaint and other filings pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Judge Hummel recommends that plaintiff's
complaint (dkt. no. 1) be dismissed with prejudice; that
plaintiff's “Emergency Motion for the Death Penalty” (dkt.
no. 5) be dismissed; and that plaintiff's letter motion to file
exhibits under seal (dkt. no. 8) be dismissed as moot. See
April 13, 2021 Report-Recommendation & Order, dkt. no. 10.
Plaintiff did not file objections directed to Judge Hummel's
recommendations, and the time to do so has expired. Plaintiff
did, however, file an amended complaint. For the reasons that
follow, the Court adopts Judge Hummel's recommendations,
and independently reviews plaintiff's amended complaint and
finds it fails to assert viable causes of action.
II. DISCUSSION
a. Complaint
As Judge Hummel explains, plaintiff pro se Myrna Althia
Alicia Walker purported to commence this action on October
28, 2020, by submitting a complaint and application to
proceed in forma pauperis (“IFP”) in lieu of paying the Court's
filing fee. See Dkt. No. 1 (“Compl.”); Dkt. No. 2. On March
15, 2021, plaintiff submitted a supplement to her complaint.
Dkt. No. 4. On April 6, 2021, plaintiff submitted an additional
filing entitled “Emergency Petition for the Death Penalty
Against Adethia Keisha Fitten and Others on the Principle
Found in the Law of Necessity.” Dkt. No. 5. On April 7, 2021,
plaintiff submitted an additional 86 pages to supplement to
her complaint. Dkt. Nos. 6, 7. On April 8, 2021, plaintiff
submitted additional exhibits and a letter requesting to file
those exhibits under seal. Dkt. No. 8.
Plaintiff purports to bring this action pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
2000, et seq. On her form Title VII complaint, she indicates
that defendant discriminated against her due to her race
and color, religion, sex, and “my date of birth – Easter.”
Compl. at 2. Plaintiff further indicates, through checking the
boxes on the form complaint, that defendant terminated her
employment, failed to promote, engaged in unequal terms and
conditions of employment, retaliated against her, and “forced
prostitution; [i]dentity theft, which is used to do Bank frauds
& Poisonings.” Id. Plaintiff's complaint, inclusive of exhibits,
is 158 pages long. Dkt. No. 1. The exhibits include an 80-page
letter relating to apparent visa fraud that plaintiff sent to the
US Department of Justice, the United States Department of
Homeland Security, Immigration and Customs Enforcement,
and the Federal Bureau of Investigation, as well as an incident
report dated May 29, 2019, regarding an apparent rape of
plaintiff.
The supplement plaintiff filed on March 15, 2021 is 112
pages long. Dkt. No. 4. The supplement appears to be filings
from a complaint plaintiff had before the Supreme Court,
Rensselaer County against Unity House of Troy and Joseph
Posa. Id. The “emergency motion,” filed on April 4, 2021,
is 22 pages long, with 70 additional pages of exhibits. Dkt.
No. 5. These exhibits are (1) various transfer orders and
orders of protection plaintiff either sought or obtained against
various individuals in family court proceedings in different
counties (dkt. no. 5-1); (2) a residential lease agreement
from July 2018, for a property in Troy, New York, with
landlord Joseph Posa (dkt. no. 5-2); (3) records from a
proceeding before the Rensselaer County Supreme Court in
a case captioned Myrna Althia Alicia Walker vs. “Change
of Name” Heidi Elizabeth Zuach (dkt. no. 5-3); and (4)
a lease agreement dated May 2, 2017, between Capital
Group Management LLC and plaintiff for a property in Troy,
New York (dkt. no. 5-4). The submission filed on April
7, 2021, is 59 pages long and includes various orders of
protection, a USPS tracking number report, a Unity House
Domestic Violence Services Transitional Housing Program
Handbook, a form from the Rensselaer County Department
of Social Services, earnings statements, a New York State
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incident report from 2018, an eviction notice, a letter from
the Unity House Transitional Housing program, a “notice”
letter, and a “birth registration” form. Dkt. No. 6-6. The
exhibits filed on April 7, 2021 appear to be letters plaintiff
sent to the New York State Department of Labor, United
States Department of Homeland Security, Immigration and
Customs Enforcement, and the EEOC, apparently related to
“pandemic unemployment compensation benefits.” See dkt.
no. 7.
*2 Plaintiff's complaint discusses Allison Carolyn Rattray,
allegedly the Corporate Secretary and Legal Counsel
of defendant CIBC First Caribbean International Bank
(Jamaica) Limited. Dkt. No. 1 at 3. Plaintiff contends that Ms.
Rattray kills unidentified people “with her married name” and
drinks plaintiff's blood. Id. Apparently, plaintiff contends that
Ms. Rattray is or was her “employer” who “uses the drinking
blood of the employee to kill employing the employment
agreement and the incomes paid by direct deposit as the
consideration for the blood that is drank before the killings
and the doomings if [sic] innocent persons.” Id. at 4. Plaintiff
also appears to suggest that Ms. Rattray and her husband,
“Barrington Andrew Rattray, Senior Judge, The Commercial
Division, The Supreme Court of Jamaica,” forced plaintiff to
use “illegal psychotropic medicines,” cocaine, and alcohol.
Id. at 5. Plaintiff refers to an employment agreement she
signed with Ms. Rattray in 1995 and appears to suggest that
since that date, Ms. Rattray “has been stalking the Plaintiff
inside her bedroom, bathroom mirror, on her cell phone from
1995 even until today October 20, 2020 even the bathroom
staples [sic] has visual and audio devices inside of them.” Id.
at 6. The Complaint then appears to proceed to explain why
Ms. Rattray and her various family members are carrying out
unspecified killings. See generally Dkt. No. 1. Plaintiff further
suggests that through her employment with defendant, both
defendant and the Commercial Division of the Supreme Court
of Jamaica
has been using me as a sex doll;
as sex services; as sex product also
incorporating The University of the
West Indies Hospital to do surgeries;
using illegal force of The Jamaican
police; using the illegal Force of the
Jamaican Army; using the illegal force
of the Jamaican parliament to have
men from any where have sex with
The Plaintiff because The Plaintiff was
born on the day the crucifixion was
celebrated, that is Easter and Good
Friday.
Id. at 13. Plaintiff asks the Court for
an Injunction to stop, restrain and
prevent Allison Carolyn Rattray
(maiden name Smith), Corporate
Secretary and Legal Counsel, CIBC
First Carribean Jamaica; her husband,
Barrington Andrew Rattray, Senior
Judge, The Commercial Division, The
Supreme Court of Jamaica, King
Street, Kingston, Jamaica, West Indies
Deryke Smith, her brother; Lacelles
Smith retired lecturer The University
of the West Indies, Jamaica, West
Indies; and the Rhoda Ford children
and others from practicing their
religion in a way that results in the
death or harm or injury of The Rights
of The Plaintiff and or the mother of
The Plaintiff and or the siblings of The
Plaintiff; and or any member of The
Public, which includes anyone in the
global community.
Id. at 14.
As for plaintiff's first cause of action, plaintiff lists:
forced religion imposed on The
Plaintiff whom is the employee by
The Employer, CIBC Limited. The
Forced Religion imposed on Myrna
Althia Alicia Walker [ ] to kill innocent
Persons. The daily murders of innocent
Persons is used to supply the demands
of the global organ Donor list. The
staff is Allison Carolyn Rattray.
Dkt. No. 1 at 69. As for a second cause of action is
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employment discrimination – I chose a
career path to be an Attorney-At-Law.
Allison Carolyn Rattray (maiden name
Smith) my (former) then manager at
CIBC had me fired; told me that (1)
I am not worthy to be an Attorney-at-
Law because of my Race (2) I was not
worthy to be in the same Profession
as her. She has been defaming my
character ever since.
Id. at 70. The third cause of action is listed as
employment discrimination -
compensation: denied increases in my
salary verbally communicated to me
by Ms. Cherlyn Blackman my Senior
Manager of 3% in 2004; Denied
Promotion communicated to me by
Human Resources Regional Director,
Jerime Cjnttihs-Bell; denied fringe
benefits that accompanied my five (5)
CIBC Achievers awards – my salary
was split and part paid to my aunt.
Id. In the prayer for relief, plaintiff requests:
(1) an Injunction(s) for Criminal
Indictment(s) of Allison Carolyn
(Smith) Rattray, Corporate Secretary
and Legal Counsel CIBC for her
forced Prostitution of The Plaintiff and
Others; (2) An Injunction to prevent
and stop all Prostitution or abuse of
The Plaintiff; (3) Restitution(s) by
CIBC for lost Incomes and fringe
benefits[; and] (4) Job Reference letter
from CIBC and an apology and my
land Title Deed.
Id. at 71.
Judge Hummel found (a) that plaintiff's complaint fails to
meet the pleading requirements of Fed. R. Civ. P. 8 and 10,
see Dkt. 10 at 8-9; (b) plaintiff's claims under Title VII (1)
are barred by the statute of limitations, and (2) fail to state
a claim for employment discrimination in violation of Title
VII, see id. at 9-10; and (c) apart from the Title VII claims,
“plaintiff's claims fail to state any cognizable legal claim
under the United States Constitution, federal statute, or state
law, and ultimately fails [to] establish this Court's jurisdiction
under federal question or diversity jurisdiction.” Id. at 10.
Judge Hummel indicated that he was
*3 at a loss as to how the allegations in the
complaint relate to a valid employment discrimination
claim or any valid legal claim. Plaintiff presents a
difficult to comprehend series of allegations against
various individuals – many of whose connections to her
apparent former employer is difficult, if not impossible, to
comprehend – who she alleges forced her into prostitution,
performed plastic surgeries on her against her will, installed
“spying devices” into plaintiff's body, forced her to undergo
various injections, and involved plaintiff in a murder
scheme that is somehow related to her Easter birthday. See
Dkt. No. 1 at 56-60. Plaintiff also sets forth unexplained
allegations that appear to involve Ms. Rattray and others,
such as “an abuse of a veteran of the United States Army by
the said Allison Carolyn Rattray” (dkt. no. 1 at 54). Plaintiff
submits dozens of pages of exhibits and supplements that
appear to relate to cases filed in other courts, orders
of protection obtained in other courts, unemployment
insurance issues, police reports, and documents sent to
various federal agencies. See dkt. nos. 4, 5, 6, 7. The
relevance of this deluge of documents is entirely unclear.
Id. at 11.
Judge Hummel also concluded that to the extent plaintiff
requests injunctions (dkt. no. 1 at 71) to prevent defendant's
employees from prostituting or harming plaintiff or seeks
some kind of prosecution of defendant's employees for
criminal conduct, this Court does not have authority to direct
persons to cease engaging in illegal activity through a civil
suit as it is not a law enforcement agency. Id. at 11-12.
As to plaintiff's “emergency motion” for the Death Penalty,
Judge Hummel found that it appears to ask the United States
Supreme Court to enforce the death penalty against various
individuals who plaintiff contends engaged in “drug assisted
surgeries on The Plaintiff herein to induce The Coronavirus
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ahead of the proposed mass vaccination of the US public,
which is set for May 1, 2021[,]” implanting maggots
into plaintiff's bones, releasing poisons into plaintiff's
body, “install[ing] television” and “Netflix Television” into
plaintiff's eye and spinal cord, “alter[ing]” plaintiff's “joints
to make [her] walk in [sic] all four” to be “displayed as a
naked dog on a lease [sic],” and other similar allegations. See
Dkt. No. 5. Judge Hummel concluded that “this Court does
not have the authority or jurisdiction to sua sponte impose
the death penalty in a civil case nor can it seek the criminal
prosecution of individuals or at the request of a plaintiff or
decide the ultimate punishment if convicted after a criminal
trial.” Dkt. 10 at 12.
Judge Hummel concluded that although the Court must
show special solicitude to pro se litigants, and is to exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond, ...” id. at 14 (quoting Anderson v.
Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations
omitted)), the Court also has a responsibility to determine
that a claim is not frivolous before permitting a plaintiff to
proceed with an action in forma pauperis. Id. Judge Hummel
concluded:
Even if, arguendo, the statute of limitations was not a
jurisdictional bar and plaintiff had been able to establish
this Court's jurisdiction, the undersigned would still
recommend dismissal with prejudice on its initial review as
plaintiff's complaint is “factually frivolous.” See Bennett v.
Mnuchin, 6:20-CV-243 (BKS/TWD), 2020 WL 1674068
(citing Denton v. Hernandez, 504 U.S. 25, 32-33 (1992))
(holding that a court may dismiss a factually frivolous
claim when the allegations are “clearly baseless,” including
claims that “describ[e] fantastic or delusional scenarios.”);
Brown v. New York State Educ. Dept., 8:18-CV-169 (TJM/
CFH), 2018 WL 1865547, at *2 (N.D.N.Y. Mar. 19, 2018)
(dismissing pro se plaintiff's complaint with prejudice
where “it is clear that no federal claim can be stated on
these facts[.]”). Accordingly, the undersigned recommends
dismissal with prejudice pursuant to 28 U.S.C. § 1915(e)
(2)(B)(i) as any leave to amend would be clearly futile.
*4 Id. at 14. As indicated above, Judge Hummel also
recommends that plaintiff's “Emergency Motion for the Death
Penalty” (dkt. no. 5) be dismissed, and that plaintiff's letter
motion to file exhibits under seal (dkt. no. 8) be dismissed as
moot. Id. at 15.
After examining the record, this Court has determined that the
recommendations in the Report-Recommendation and Order
are not subject to attack for plain error or manifest injustice.
Further, even if plaintiff's amended complaint is treated as
an objection, the Court has completed a de novo review
and has determined to adopt Magistrate Judge Hummel's
recommendations for the reasons stated in his report.
b. Amended Complaint
As indicated, plaintiff filed an amended complaint after Judge
Hummel recommended that the complaint be dismissed with
prejudice. After a review of the amended complaint, the Court
finds that it too must be dismissed with prejudice.
Plaintiff's amended complaint is a form Title VII complaint.
See dkt. no. 11. She indicates that the defendant is “CIBC
Limited/Michael Capatide CEO CIBC.” Id. at ¶ 3(b). 1
Plaintiff checks the boxes indicating that the defendant
discriminated against her on account of her “race or color,”
“religion,” “sex (or sexual harassment),” “national origin,”
and “other” indicating on the line that follows: “my right
to marry; my right to life; my right to work and provide
for my daily living expenses.” Id. at ¶ 6. Where plaintiff is
asked to indicate what the complained-of conduct involves,
she checked the boxes for “failure to employ,” “termination
of employment,” “failure to promote,” “unequal terms and
conditions of employment,” “retaliation,” and “other acts as
specified below” after which she writes: “I am being sex
trafficked by CIBC First Caribbean staff in lieu of my salary.”
Id. at ¶ 7. In the section of the amended complaint asking
for the facts underlying her claims, plaintiff asserts she is
being sex trafficked because she was born on Easter and that
the sex trafficking is in lieu of her salary paid to her by
CIBC First Caribbean Jamaica.” Id. ¶ 8. She also asserts that
“the force” of the Jamaican Police, the Jamaican Judiciary,
the Jamaican Hospital, and the University of the West Indies
are conspiring with her “Walker relatives used to commit
crimes with my identity using identity theft of Myrna Suzette
Walker employed by Jamaican government Judge Barrington
Andrew Rattray & Allison Carolyn Rattray.” Id. In addition,
she asserts that “Adethia Keisha Fitten is physically cutting
me to create presumed consent for the crimes organized by
Judge Barrington Andrew Rattray.” Id.
The First Cause of Action alleges “forced organized
criminality using the salary that was paid to the plaintiff by
CIBC First Caribbean Jamaica January 1, 1995 to March
28, 2009.” It also asserts that Myrna Suzette Walker “is a
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thief,” and that “Allison Carolyn Rattray ... hired Myrna
Suzette Walker and her five (5) children and Adethia Keisha
Fitten to steal and to say that the stealing was done by
the plaintiff.” Plaintiff also appears to indicate that “to do
the stealing,” Myrna Suzette Walker “and others” repeatedly
physically injure plaintiff. As discussed by Judge Hummel,
these allegations do not provide plaintiff with a timely Title
VII cause of action, see, e.g., Am. Compl. attach. 4, dkt. no.
11-4 at 1, 2 nor do they provide a basis for the relief plaintiff
seeks. See Dkt. 11, at 5. 3
*5 The Second Cause of Action asserts violations of the
“Human Rights Act of 1998.” The Human Rights Act of
1998 appears to be a law or act of Parliament in the
United Kingdom. See Brady v. Wks. Med. Ctr., No. 19-
CV-00655-SM, 2019 WL 6529870, at *2 (D.N.H. Nov.
12, 2019)(“A law in effect in the United Kingdom bears
that title.”)(citing Human Rights Act 1998, ch. 42, http://
www.legislation.gov.uk/ukpga/1998/42/contents), report and
recommendation approved, No. 19-CV-655-SM, 2019 WL
6529459 (D.N.H. Dec. 4, 2019); Simpson v. Dauphin Cty.
Hous. Auth., No. 1:16-CV-01747, 2017 WL 2375702, at *2,
n. 4 (M.D. Pa. Apr. 26, 2017) (“Simpson also references
a ‘Human Rights Act of 1998,’ which as best we can tell
refers to an Act of Parliament of the United Kingdom, not
applicable in this jurisdiction.”), report and recommendation
adopted, No. 1:16-CV-1747, 2017 WL 2362510 (M.D. Pa.
May 31, 2017). The Human Rights Act of 1998 does not
provide plaintiff with a viable cause of actions against the
defendant for any events occurring in the Northern District of
New York over which this Court would have jurisdiction. See
Brady, 2019 WL 6529870, at *2.
The Third Cause of Action is confusing but appears to be a
claim seeking unpaid wages. See dkt. no. 11 at 4 (stating at the
start of Third Cause of Action: “The right to my paycheck.”).
Plaintiff asserts that her aunt Myrna Suzette Walker “assisted
by CIBC First Caribbean staff Allison Carolyn Rattray has
been falsely selling me as a whore in lieu of my current
income(s) from JC Penney, Aerotek, Walmart, Fidelis Care
and more.” However, Myrna Suzette Walker, Allison Carolyn
Rattray, JC Penney, Aerotek, Walmart, or Fidelis Care are
not defendants in this action. Further, plaintiff does not
assert when it was that she worked at JC Penney, Aerotek,
Walmart, or Fidelis Care, or when or where it was that Myrna
Suzette Walker and Allison Carolyn Rattray purportedly took
actions preventing plaintiff from receiving her wages from
these employers. The claim in this regard fails to assert a
viable cause of action under Title VII. In addition, in nearly
incomprehensible fashion plaintiff ends the Third Cause of
Action by asserting: “The rapes of me by co-workers is [sic]
recorded and published. Walmart staff a [sic] man named
Donnell she [sic] gave permission to live in my apartment as
well as Fidelis Care Health Insurance staff- Rashid Rardon.”
These allegations fail to provide a sufficient basis for the
Court to discern any viable cause of action under Title VII
or any other law or statute over which the Court would have
jurisdiction.
Accordingly, for the reasons set forth above plaintiff's
amended complaint will be dismissed. Because the
allegations in the amended complaint are factually frivolous,
and because plaintiff filed an amended complaint that did
not cure the pleading defects pointed out by Judge Hummel,
dismissal will be with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) as any leave to amend would be futile.
III. CONCLUSION
For the reasons discussed above, the Court ACCEPTS AND
ADOPTS Judge Hummel's recommendations in the April 13,
2021 Report-Recommendation & Order, dkt. no. 10. Thus, it
is hereby
ORDERED that plaintiff's complaint (dkt. No. 1) is
DISMISSED with prejudice; and it is further
ORDERED that plaintiff's “Emergency Motion for the Death
Penalty” (dkt. no. 5) is DENIED and DISMISSED; and it
is further
ORDERED that plaintiff's letter motion to file exhibits under
seal (dkt. no. 8) is DENIED and DISMISSED as moot.
Based on the Court's review of the amended complaint, it is
hereby
ORDERED that plaintiff's amended complaint (dkt. No. 11)
is DISMISSED with prejudice.
The Clerk of the Court may mark this file as closed.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 3204860
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Footnotes
1 At paragraph 3(a) asking to identify the defendant, plaintiff writes: “Not Applicable”
2 Dkt. no. 11-4 is a letter from Maureen Kielt, Director of the EEOC Buffalo Local Office to plaintiff in the matter
of Walker v. CIBC confirming that plaintiff indicated that her “last date of harmed occurred on March 24,
2009, when [she] was terminated,” thus making her EEOC administrative claim against CIBC untimely. Dkt.
No. 11-4 at 1.
3 In the Prayer for Relief, plaintiff requests the Court to grant the following relief:
1. The plaintiff do not [sic] want to be a party to the religious killing business of Myrna Suzette Walker;
her five children; and CIBC First Caribbean Jamaica staff, Allison Carolyn Rattray and her husband Judge
Barrington Andrew Rattray, Supreme Court of Jamaica;
2. The plaintiff do not [sic] want cocaine nor any thing to ingest from anyone, by force or otherwise.
3. The plaintiff wants full restitution socially, physically, professionally.
Dkt. 11, at 5 (emphasis in original).
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KeyCite Yellow Flag
Report and Recommendation Adopted as Modified by Whitbeck v. Otsego
County, N.D.N.Y., October 20, 2025
2025 WL 2717564
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Janel WHITBECK, Plaintiff,
v.
OTSEGO COUNTY; Otsego County Sheriff's
Office; Deputy E. Lincoln, in her individual and
official capacities; and Deputy J. Smith, in his
individual and official capacities, Defendants.
3:25-CV-0673 (AMN/ML)
|
Signed September 24, 2025
Attorneys and Law Firms
JANEL WHITBECK, Plaintiff, Pro Se, 225 Main Street,
Franklin, New York 13775.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Plaintiff Janel Whitbeck (“Plaintiff”) commenced this
pro se action against Defendants Otsego County, Otsego
County Sheriff's Office, Deputy E. Lincoln, and Deputy J.
Smith (collectively “Defendants”) alleging violations of her
civil rights. (Dkt. No. 1.) Plaintiff did not pay the filing fee
and seeks leave to proceed in forma pauperis (“IFP”). For the
reasons set forth below, I (1) grant Plaintiff's IFP application,
and (2) recommend that the Complaint be accepted in part for
filing and dismissed in part.
I. BACKGROUND
Construed as liberally 1 as possible, the Complaint alleges
violations of Plaintiff's civil rights by Defendants. (See
generally Dkt. No. 1.)
More specifically, the Complaint alleges that on March
1, 2025, Plaintiff experienced a medical emergency while
attempting to complete a transaction at Walmart. (Dkt. No.
1 at 2.) Plaintiff alleges that her trained service dog alerted
her to the onset of a transient ischemic attack (“TIA”). (Id.)
Plaintiff alleges that she attempted to return to her vehicle to
access medication, but that Walmart staff stopped her, took
her to the security office, and summoned law enforcement.
(Id.)
The Complaint alleges that Defendants Lincoln and Smith
arrested Plaintiff for petit larceny. (Dkt. No. 1 at 2.) Plaintiff
alleges that her speech was garbled, her gait was unsteady, and
she was wearing a medical alert bracelet. (Id.) Plaintiff alleges
that she was not handcuffed but was physically steadied by
Defendant Smith, which indicated his awareness of Plaintiff's
impairment. (Id.)
The Complaint alleges that Defendant Lincoln conducted
a search during which she saw Plaintiff's medical alert
bracelet. Plaintiff alleges that she explained that she was
experiencing a TIA but was taken to booking, fingerprinted,
and photographed with facial droop. (Id.)
Plaintiff alleges that the criminal charges against her were
“never dropped” and she was “forced to pay $200 to clear her
record.” (Dkt. No. 1 at 3.)
Based on these factual allegations, Plaintiff asserts the
following five causes of action: (1) a claim of false arrest
in violation of the Fourth and Fourteenth Amendments and
42 U.S.C. § 1983; (2) a claim of deliberate indifference to
medical needs in violation of Fourteenth Amendment and
42 U.S.C. § 1983; (3) a claim that Defendants violated the
New York State Andrew Kearse Act (N.Y. Exec. Law § 837-
u); (4) a claim that Defendants violated the Americans with
Disabilities Act (“ADA”); and (5) a claim that Defendant
Otsego County failed to properly train and supervise its
deputies. (Dkt. No. 1 at 2-3.) As relief, Plaintiff seeks
monetary damages in the amount of $5,000,000.00 and
injunctive relief requiring Defendant Otsego County to
implement training for deputies related to recognizing and
responding to medical emergencies. (Id. at 3-4.)
*2 Plaintiff has not paid the filing fee and seeks leave to
proceed IFP.
II. PLAINTIFF'S 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
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to pay” the standard fee for commencing an action. 28 U.S.C.
§ 1915(a)(1). 2 After reviewing Plaintiff's IFP application
(Dkt. No. 2), the Court finds that Plaintiff meets this standard.
Therefore, Plaintiff's application to proceed IFP is granted. 3
III. LEGAL STANDARD FOR REVIEW OF THE
COMPLAINT
“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
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.
*3 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
A. Claims Against Defendant Otsego County Sheriff's
Office
“Although a municipality is subject to suit pursuant to section
1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
(1978), a municipal ... department does not have the capacity
to be sued as an entity separate from the municipality in which
it is located.” White v. Syracuse Police Dep't, 18-CV-1471,
2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles,
M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d
223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel.
McGregor v. City of Utica, 13-CV-1357, 2014 WL 6685476,
at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v.
Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999)
(“Under New York law, a department of a municipal entity is
merely a subdivision of the municipality and has no separate
legal existence. Therefore, municipal departments like the
Department of Social Services are not amenable to suit and
no claims lie directly against the Department.”)), report and
recommendation adopted by, 2019 WL 974824 (N.D.N.Y.
Feb. 28, 2019) (Suddaby, C.J.).
“[T]he Sheriff's Department [does not] exist separate and
apart from the County and, as a result, [ ] can[not] be
sued.” Sagaria v. Orange Cnty. Jail, 20-CV-2287, 2021 WL
4392422, at *3 (S.D.N.Y. Sept. 24, 2021); see also Gleeson
v. County of Nassau, 15-CV-6487, 2019 WL 4754326, at *14
(E.D.N.Y. Sept. 30, 2019) (holding that the Nassau County
Sheriff's Department and Nassau County Correction Center
were not proper parties because they are administrative arms
of Nassau County); Polite v. Town of Clarkstown, 60 F.
Supp. 2d 214, 216 (S.D.N.Y. 1999) (“Therefore, municipal
departments in this State—such as the Clarkstown Police
Department—are not amenable to suit, and no claims can lie
directly against them.”).
As a result, I recommend that Plaintiff's claims against
Defendant Otsego County Sheriff's Office be dismissed
because it is not an entity that is amenable to suit. See Dudley
v. Hochul, 24-CV-0048, 2024 WL 1906594, at *9 (N.D.N.Y.
May 1, 2024) (Lovric, M.J.) (recommending dismissal of
claims against the Onondaga County Sheriff because it was
“not an entity amenable to suit.”), report and recommendation
adopted, 2024 WL 2399913 (N.D.N.Y. May 23, 2024)
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(Hurd, J.); Taranto v. Putnam Cnty., 21-CV-2455, 2023 WL
6318280, at *15 (S.D.N.Y. Sept. 28, 2023) (dismissing claims
against the defendant Putnam County Sheriff's Office because
it was “not a suable entity.”).
B. Claims Pursuant to 42 U.S.C. § 1983
1. Unlawful Seizure/False Arrest Claim
“In analyzing claims alleging the constitutional tort of false
arrest, ‘[the Court has] generally looked to the law of the state
in which the arrest occurred.’ ” Russo v. City of Bridgeport,
479 F.3d 196, 203 (2d Cir. 2007) (quoting Davis v. Rodriguez,
364 F.3d 424, 433 (2d Cir. 2004)). “To establish [a claim of
false arrest under New York law] the plaintiff must show that:
(1) the defendant intended to confine him, (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.” Broughton v. State, 37 N.Y.2d 451,
456 (N.Y. 1975). Confinement is “otherwise privileged” when
probable cause exists, in other words, “when the officers 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.” Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). However, “[p]laintiffs are
not required to set forth a lack of probable cause in their
complaint.” Case v. City of New York, 233 F. Supp. 3d 372,
384 (S.D.N.Y. 2017). “Whenever there has been an arrest
and imprisonment without a warrant, the officer has acted
extrajudicially and the presumption arises that such an arrest
and imprisonment are unlawful.” Broughton, 37 N.Y.2d at
458 (internal citations omitted).
*4 Plaintiff has sufficiently plead her false arrest claim
against Defendants Lincoln and Smith because she appears
to allege that they did not have a warrant to arrest her.
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 Fourth Amendment false arrest claim
against Defendants Lincoln and Smith.
2. Deliberate Indifference to Medical Need
The “Second Circuit has recently observed ... that ... pre-
arraignment conditions of confinement claims should be
treated as arising under the Fourteenth Amendment.” Stinson
v. Saint Vincent's Hosp., 20-CV-0704, 2022 WL 2047221,
at *7 (D. Conn. June 6, 2022) (citing Shakir v. Stankye,
805 F. App'x 35, 40 (2d Cir. 2020) (summary order)).
Under the “applicable Fourteenth Amendment standard,
‘[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.’ ” Shakir, 805 F. App'x at 40
(quoting Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)).
More specifically, “a plaintiff must demonstrate: (1) that an
official ‘denied [him] treatment needed to remedy a serious
medical condition,’ and (2) that the official did so ‘because
of his deliberate indifference to that need.’ ” Mills v. Fenger,
216 F. App'x 7, 10 (2d Cir. 2006) (quoting Weyant v. Okst, 101
F.3d 845, 856 (2d Cir. 1996)).
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 Fourteenth Amendment deliberate indifference
to medical needs claim against Defendants Lincoln and
Smith.
3. Claims Against Defendant Otsego County
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 v.
Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
To establish municipal liability, the policy must actually
cause the violation of constitutional rights; it must be the
moving force behind the violation. Monell, 436 U.S. at 694;
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
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employees. Connick, 563 U.S. at 61. 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. (quoting City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989)).
*5 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 claims against Defendant Otsego
County and Defendants Lincoln and Smith in their official
capacities alleging that Defendant Otsego County failed to
train or supervise Defendants Lincoln and Smith which
resulted in Plaintiff's false arrest and deliberate indifference
to her medical needs.
C. ADA Claim
Title II of the ADA prohibits any public entity
from discriminating against “qualified” individuals with
disabilities “in the provision or operation of public services,
programs, or activities.” Tennessee v. Lane, 541 U.S. 509, 517
(2004). 4
To establish a violation of the ADA, the plaintiff must
demonstrate (1) that she is a “qualified individual” with a
disability; (2) that the defendants are subject to the ADA; and
(3) that she was denied the opportunity to participate in or
benefit from the defendant's services, programs, or activities,
or was otherwise discriminated against by the defendant by
reason of her disability. Disabled in Action v. Bd. of Elections
in City of New York, 752 F.3d 189, 196-97 (2d Cir. 2014)
(citing McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d
Cir. 2012)).
It appears that Plaintiff is a qualified individual with a
disability 5 and Defendant Otsego County is a public entity
that is subject to the ADA. Moreover, “law enforcement
officers who are acting in an investigative or custodial
capacity are performing ‘services, programs, or activities’
within the scope of Title II.” Williams v. City of New York, 121
F. Supp. 3d 354, 368 (S.D.N.Y. 2015).
Courts in this Circuit have found two fact patterns during
the course of an arrest that can commonly raise a legitimate
possibility of discrimination in violation of Title II or the
Rehabilitation Act. See Durr v. Slator, 558 F. Supp. 3d
1, 27 (N.D.N.Y. 2021) (D'Agostino, J.). The first is when
police wrongfully arrest a plaintiff because they misinterpret
his disability to be criminal activity. Durr, 558 F. Supp.
3d at 27-28. The second is when police fail to reasonably
accommodate a disability during an investigation or arrest. Id.
at 28.
As set forth above in Part IV.B.1., Plaintiff plausibly alleges
that she was falsely arrested because her response to her
disability was misinterpreted as criminal activity. Plaintiff
alleges that she informed Defendants Lincoln and Smith that
she suffers from TIA and that they observed her medical alert
bracelet and in a disoriented state.
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 claims against Defendant Otsego
County and Defendants Lincoln and Smith in their official
capacities alleging a claim pursuant to Title II of the ADA. 6
D. New York State Claim
*6 To the extent that Plaintiff attempts to assert a claim
pursuant to N.Y. Exec. Law § 837-u, I recommend that it be
dismissed for failure to state a claim upon which relief may
be granted. N.Y. Exec. Law § 837-u imposes data collection
and reporting requirements on the division of criminal justice
services with the chief administrator of the New York State
courts. N.Y. Exec. Law § 837-u. There is no private cause of
action pursuant to N.Y. Exec. Law § 837-u.
Plaintiff also references the “New York State Andrew
Kearse Act,” which refers to an Assembly bill from the
2021-2022 New York State Legislative session that imposes
criminal liability for the failure to obtain medical care
for a person in custody displaying medical distress. See
New York State Senate Assembly Bill A1745, https://
www.nysenate.gov/legislation/bills/2021/A1745 (last visited
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September 23, 2025). The Bill appears to still be in committee
with the New York State Assembly.
Furthermore, even if this Bill was valid law, there is no private
cause of action to enforce criminal violations. See Linda R.S.
v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”); see also Walker v. CIBC Ltd.,
20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13,
2021) (Hummel, M.J.) (“It appears plaintiff is either seeking
the criminal prosecution of an individual or individuals or a
law enforcement investigation, which is beyond this Court's
jurisdiction.”), report-recommendation adopted by 2021 WL
3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden
v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y.
Apr. 26, 2013) (D'Agostino, J.) (holding that “there is no
private right of action to enforce either state or federal
criminal statutes.”).
As a result, I recommend that Plaintiff's claim pursuant to
N.Y. Exec. Law § 837-u be dismissed for failure to state a
claim upon which relief may be granted.
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
*7 The issue with Plaintiff's claims (1) against Defendant
Otsego County Sheriff's Office, and (2) pursuant to New York
Executive Law § 837-u or the “New York Andrew Kearse
Act” are substantive such that a better pleading will not cure
them. As a result, I recommend that Plaintiff's claims against
Defendant Otsego County Sheriff's Office and pursuant to the
New York Executive Law § 837-u be dismissed without leave
to replead.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma
pauperis (Dkt. No. 2) is GRANTED; and it is further
respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1)
be (1) ACCEPTED FOR FILING to the extent that it
asserts (a) a claim of false arrest in violation of the Fourth
Amendment and 42 U.S.C. § 1983 against Defendant Otsego
County and Defendants Lincoln and Smith in their individual
and official capacities; (b) a claim of deliberate indifference
to medical needs in violation of the Fourteenth Amendment
and 42 U.S.C. § 1983 against Defendant Otsego County
and Defendants Lincoln and Smith in their individual and
official capacities; and (c) a claim that Defendant Otsego
County and Defendants Lincoln and Smith in their official
capacities violated Title II of the ADA; and (2) DISMISSED
WITHOUT LEAVE TO REPLEAD to the extent that it
asserts claims (a) against the Otsego County Sheriff's Office,
and (b) pursuant to New York Executive Law § 837-u or the
“New York Andrew Kearse Act”; 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
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
Slip Copy, 2025 WL 2717564
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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 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.
4 Title II provides in relevant part that “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
5 A “qualified individual with a disability” is an individual with a disability “who, with or without reasonable
modifications to rules, policies or practices, the removal of ... communication ... barriers, or the provision
of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
6 “It is well-settled that ... Title II of the ADA ... [does not] provide[ ] for individual capacity suits against state
officials.” Hill v. LaClair, 20-CV-0441, 2020 WL 2404771, *7 (N.D.N.Y. May 11, 2020) (Hurd, J.) (internal
quotation marks and citation omitted).
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.
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).
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 © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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2025 WL 2959467
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Janel WHITBECK, Plaintiff,
v.
OTSEGO COUNTY; Otsego County Sheriff's
Office; Deputy E. Lincoln, in her individual and
official capacities; and Deputy J. Smith, in his
individual and official capacities, Defendants.
3:25-CV-00673 (AMN/ML)
|
Signed October 20, 2025
Attorneys and Law Firms
JANEL WHITBECK, 225 Main Street, Franklin, New York
13775, Plaintiff pro se.
ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On May 27, 2025, Plaintiff pro se Janel Whitbeck
commenced this action and asserted claims of false arrest and
deliberate indifference to medical needs pursuant to 42 U.S.C.
§ 1983, as well as claims pursuant to the Americans with
Disabilities Act (“ADA”) and the New York State Andrew
Kearse Act, N.Y. Exec. Law § 837-u, against Otsego County,
the Otsego County Sheriff's Office, and Otsego County
Sheriff's Deputies Lincoln and Smith in their individual and
official capacities. Dkt. No. 1. Plaintiff did not pay the
filing fee and sought leave to proceed in forma pauperis
(“IFP”). Dkt. No. 2. This matter was referred to Magistrate
Judge Miroslav Lovric, who, on September 24, 2025, granted
Plaintiff's motion for leave to proceed IFP. Dkt. No. 5.
Also on September 24, 2025, after conducting an initial
review of the Complaint pursuant to 28 U.S.C. § 1915(e),
Magistrate Judge Lovric issued an Order and Report-
Recommendation recommending that (i) Plaintiff's false
arrest and deliberate indifference claims be permitted to
proceed against Otsego County and Defendants Lincoln
and Smith in their individual and official capacities; (ii)
Plaintiff's ADA claim be permitted to proceed against Otsego
County and Defendants Lincoln and Smith in their official
capacities; and (iii) Plaintiff's claims under the New York
State Andrew Kearse Act and Plaintiff's claims against the
Otsego County Sheriff's Office be dismissed with prejudice.
Dkt. No. 5 (“Report-Recommendation”). Magistrate Judge
Lovric advised that under 28 U.S.C. § 636(b)(1), the parties
had fourteen days within which to file written objections and
that failure to object to the Report-Recommendation within
fourteen days would preclude appellate review. Dkt. No. 5 at
14. 1
For the reasons set forth below, the Court adopts the Report-
Recommendation in its entirety, except that it dismisses
Plaintiff's false arrest and deliberate indifference claims
against Defendants Lincoln and Smith in their official
capacities with prejudice and without leave to amend and
permits Plaintiff's ADA claim to proceed against Defendants
Lincoln and Smith in their official capacities only to the extent
Plaintiff seeks prospective injunctive relief.
II. BACKGROUND
On March 1, 2025, Defendants Lincoln and Smith arrested
Plaintiff for petit larceny. Dkt. No. 5 at 2 (citing Dkt.
No. 1 at 2). Plaintiff alleges that, shortly before her arrest,
she experienced a medical emergency while attempting to
complete a transaction at Walmart. Id. (citing Dkt. No. 1 at
2). Specifically, Plaintiff alleges that her trained service dog
alerted her to the onset of a transient ischemic attack (referred
to as “TIA”), and when she attempted to return to her vehicle
to access medication, Walmart staff stopped her, took her
to the security office, and summoned law enforcement. Id.
(citing Dkt. No. 1 at 2).
Plaintiff alleges that she was visibly impaired; she was
wearing a medical alert bracelet, her speech was garbled, and
her gait was unsteady. Id. (citing Dkt. No. 1 at 2). Plaintiff
alleges that during Defendant Lincoln's search of Plaintiff she
observed her medical alert bracelet. Id. (citing Dkt. No. 1 at
2). Plaintiff further alleges that Defendant Smith physically
steadied her, which indicated his awareness of Plaintiff's
impairment. Id. (citing Dkt. No. 1 at 2). Defendants Lincoln
and Smith then allegedly proceeded to book, fingerprint, and
photograph Plaintiff while she was exhibiting a facial droop
consistent with a TIA. Id. (citing Dkt. No. 1 at 2).
III. STANDARD OF REVIEW
*2 This Court reviews de novo those portions of a
magistrate judge's report-recommendation that have been
properly preserved with a specific objection. Petersen v.
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Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012); 28
U.S.C. § 636(b)(1)(C). If no specific objections have
been filed, this Court reviews a magistrate judge's report-
recommendation for clear error. See Petersen, 2 F. Supp. 3d
at 228 (citing Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition). Similarly, if an objection simply
rehashes arguments originally presented to the magistrate
judge, this Court reviews the relevant portions of the report-
recommendation for clear error. See Petersen, 2 F. Supp. 3d
at 228-29 & n.6 (collecting cases). “When performing such
a ‘clear error’ review, ‘the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.’ ” Dezarea W. v. Comm'r of Soc.
Sec., No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y.
Mar. 17, 2023) (quoting Canady v. Comm'r of Soc. Sec., No.
17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,
2017)).
“[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).
The Second Circuit has held that courts are obligated to
“make reasonable allowances to protect pro se litigants” from
inadvertently forfeiting legal rights merely because they lack
a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)). That said, “even a pro se party's objections
to a Report and Recommendation must be specific and clearly
aimed at particular findings in the magistrate's proposal ....”
Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920,
at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord
Caldwell v. Petros, No. 22-cv-567, 2022 WL 16918287, at
*1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the
court 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)(1)(C).
IV. DISCUSSION
Because neither party has filed any objections to the
Report-Recommendation, the Court reviews the Report-
Recommendation for clear error.
First, Magistrate Judge Lovric recommended that Plaintiff's
claims against the Otsego County Sheriff's Office be
dismissed with prejudice. Dkt. No. 5 at 6. Specifically,
Magistrate Judge Lovric noted that a municipal department
“does not have the capacity to be sued as an entity separate
from the municipality in which it is located.” Id. at 5 (quoting
White v. Syracuse Police Dep't, No. 18-cv-1471, 2019 WL
981850, at *3 (N.D.N.Y. Jan. 7, 2019)). Under New York law,
“a department of a municipal entity is merely a subdivision
of the municipality and has no separate legal existence.”
Hoisington v. County of Sullivan, 55 F. Supp. 2d 212, 214
(S.D.N.Y. 1999); see also Dudley v. Hochul, No. 24-cv-0048,
2024 WL 1906594, at *9 (N.D.N.Y. May 1, 2024) (dismissing
claims against the Onondaga County Sheriff's Office because
it was not amenable to suit), report and recommendation
adopted, 2024 WL 2399913 (N.D.N.Y. May 23, 2024).
Second, Magistrate Judge Lovric addressed Plaintiff's claim
of false arrest under the Fourth Amendment against
Defendants Lincoln and Smith in their individual and official
capacities. Dkt. No. 5 at 6-7. Magistrate Judge Lovric noted
that, when analyzing constitutional claims of false arrest,
courts generally look to the law of the state where the arrest
occurred. Id. at 6 (citing Russo v. City of Bridgeport, 479
F.3d 196, 203 (2d Cir. 2007)). “To establish a claim of false
arrest under New York law, the plaintiff must show that:
(1) the defendant intended to confine him, (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.” Id. (internal brackets omitted)
(quoting Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975)).
Confinement is otherwise privileged when officers “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.” Id. at 6-7 (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Here,
Plaintiff alleges that she experienced a TIA while attempting
to complete a transaction at Walmart, and in the course of
her attempt to access medication in her car, Walmart staff
summoned law enforcement. Dkt. No. 5 at 2 (citing Dkt. No.
1 at 2). Plaintiff further alleges that despite their awareness
of her impairment, Defendants Lincoln and Smith proceeded
to arrest her. Id. Magistrate Judge Lovric recommended that
Plaintiff's claim for false arrest against Defendants Lincoln
and Smith proceed. Id. at 7.
*3 Third, Magistrate Judge Lovric addressed Plaintiff's
claim of deliberate indifference to medical needs under
the Fourteenth Amendment against Defendants Lincoln and
Smith in their individual and official capacities. Id. at 7-8.
Courts evaluate claims of deliberate indifference that arise
during the course of a pretrial arrest and detainment under the
Due Process Clause of the Fourteenth Amendment. Mills v.
Fenger, 216 F. App'x 7, 10 (2d Cir. 2006) (citing Weyant, 101
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F.3d at 856). Magistrate Judge Lovric noted that a plaintiff
must demonstrate that (i) an official denied plaintiff the
treatment needed to remedy a serious medical condition, and
(ii) the official denied such treatment because of his deliberate
indifference to that need. Dkt. No. 5 at 7-8 (citing Mills, 216
F. App'x at 10). Here, among other things, Plaintiff alleges
that in connection with her arrest for petit larceny, Defendants
proceeded to book Plaintiff after she explained that she was
experiencing a TIA and while she was exhibiting symptoms
of a TIA. See id. at 2 (citing Dkt. No. 1 at 2). Magistrate Judge
Lovric recommended that Plaintiff's medical indifference
claim proceed against Defendants Lincoln and Smith. See id.
at 8. 2
Fourth, Magistrate Judge Lovric addressed Plaintiff's claims
of false arrest and deliberate indifference against Otsego
County. Dkt. No. 5 at 8-9. “[T]o hold a municipality liable
under § 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.”
Adams v. City of Syracuse, No. 21-cv-650 (AMN/MJK), 2025
WL 2772081, at *28 (N.D.N.Y. Sept. 29, 2025) (internal
brackets omitted) (quoting Lucente v. Cnty. of Suffolk, 980
F.3d 284, 297 (2d Cir. 2020)). A plaintiff can establish
the existence of an official policy or custom through “(1)
a formal policy endorsed by the municipality; (2) actions
directed by the government's authorized decisionmakers or
those who establish governmental policy; (3) a persistent
and widespread practice that amounts to a custom of which
policymakers must have been aware; or (4) a constitutional
violation resulting from policymakers’ failure to train
municipal employees.” Deferio v. City of Syracuse, 770
F. App'x 587, 589-90 (2d Cir. 2019) (internal quotations,
citations, and brackets omitted). Here, Magistrate Judge
Lovric recommended that Plaintiff's claims against Otsego
County, in which she alleges that Otsego County failed to train
or supervise Defendants Lincoln and Smith, be permitted to
proceed. Dkt. No. 5 at 9.
Fifth, Magistrate Judge Lovric addressed Plaintiff's claim
alleging a violation of Title II of the ADA. Id. at 9-11. 3
“To establish a violation of the ADA, the plaintiff must
demonstrate (1) that she is a ‘qualified individual’ with a
disability; (2) that the defendants are subject to the ADA; and
(3) that she was denied the opportunity to participate in or
benefit from the defendant's services, programs, or activities,
or was otherwise discriminated against by the defendant by
reason of her disability.” Id. at 10 (quoting Disabled in Action
v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97
(2d Cir. 2014)). Magistrate Judge Lovric found that Otsego
County is a public entity that is subject to the ADA, and
Plaintiff appeared to be a qualified individual with a disability
who plausibly alleged that Defendants Lincoln and Smith
wrongfully arrested her because Plaintiff's actions in response
to her disability were misinterpreted as criminal activity.
Id. Magistrate Judge Lovric noted that Plaintiff alleged that
Defendants Lincoln and Smith observed her in a disoriented
state, wearing her medical alert bracelet, and she informed
Defendants that she suffers from the risk of a TIA. Id. at
10-11. Accordingly, Magistrate Judge Lovric recommended
that Plaintiff's ADA claim be permitted to proceed against
Otsego County and Defendants Lincoln and Smith in their
official capacities. Id. at 11. 4
*4 Sixth, Magistrate Judge Lovric addressed Plaintiff's
claims pursuant to the New York State Andrew Kearse Act.
Id. at 11-12. Magistrate Judge Lovric noted that the New
York State Andrew Kearse Act is an unenacted New York
State Assembly Bill that imposes criminal liability for failure
to obtain medical care for a person in custody displaying
medical distress. Id. at 11. 5 Magistrate Judge Lovric further
noted that there is no private right of action to enforce federal
or state criminal statutes. See id. at 12 (citing, inter alia,
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). Thus,
Magistrate Judge Lovric recommended that this claim be
dismissed for failure to state a claim without leave to amend.
Having reviewed the Report-Recommendation for clear error
and considered Magistrate Judge Lovric's findings as to each
claim, the Court adopts the Report-Recommendation in its
entirety, except that it dismisses Plaintiff's false arrest and
deliberate indifference claims against Defendants Lincoln
and Smith in their official capacities with prejudice and
without leave to amend and permits Plaintiff's ADA claim to
proceed against Defendants Lincoln and Smith in their official
capacities only to the extent that Plaintiff seeks prospective
injunctive relief.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 5, is
ADOPTED in its entirety except as noted above; and the
Court further
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ORDERS that the Otsego County Sheriff's Office is
DISMISSED from this case with prejudice; and the Court
further
ORDERS that Plaintiff's claims pursuant to the New York
State Andrew Kearse Act be DISMISSED with prejudice
and without leave to amend; and the Court further
ORDERS that Plaintiff's claims of false arrest and deliberate
indifference against Otsego County and Defendants Lincoln
and Smith in their individual capacities SURVIVE initial
review and require a response; and the Court further
ORDERS that Plaintiff's false arrest and deliberate
indifference claims against Defendants Lincoln and Smith in
their official capacities be DISMISSED with prejudice and
without leave to amend; and the Court further
ORDERS that Plaintiff's ADA claim against Otsego County
SURVIVES initial review and requires a response; and the
Court further
ORDERS that Plaintiff's ADA claim against Defendants
Lincoln and Smith in their official capacities SURVIVES
initial review and requires a response to the extent that
Plaintiff seeks prospective injunctive relief under the ADA;
and the Court further
ORDERS that the Clerk shall issue summonses and General
Order # 25 and forward them, along with copies of the
Complaint, to the United States Marshal for service upon the
Defendants; and the Court further
ORDERS that all pleadings, motions and other documents
relating to this action must bear the case number assigned
to this action and be filed with the Clerk of the United
States District Court. Plaintiff must comply with requests by
the Clerk's Office for any documents that are necessary to
maintain this action. All parties must comply with Local Rule
7.1 of the Norther District of New York in filing motions;
motions will be decided on submitted papers, without oral
argument, unless otherwise ordered by the Court. Plaintiff is
also required to promptly notify the Clerk's Office and all
parties or their counsel, in writing, of any changes in his
address; his failure to do so may result in the dismissal of this
action.
*5 ORDERS that the Clerk serve a copy of this Order on
Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2959467
Footnotes
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system.
2 To the extent that Plaintiff brings her false arrest and deliberate indifference claims against Defendants
Lincoln and Smith in their official capacities, “this District has held that [Section 1983] claims against municipal
officers in their official capacities are really claims against the municipality and, thus, are redundant when
the municipality is also named as a defendant.” Sears v. Carmichael, No. 18-cv-909, 2018 WL 7291417, at
*2 (N.D.N.Y. Aug. 6, 2018) (internal citations and quotations omitted), report and recommendation adopted,
2019 WL 587587 (N.D.N.Y. Feb. 13, 2019). Since Plaintiff also names Otsego County as a defendant in
this action, Plaintiff's Section 1983 claims against Defendants Lincoln and Smith in their official capacities
are redundant of her claims against Otsego County. See, e.g., id. (recommending dismissal of plaintiff's
Monell claims against the individual defendants in their official capacities as “redundant,” given that plaintiff
also named the town of Saranac Lake as a defendant). Accordingly, Plaintiff's false arrest and deliberate
indifference claims against Defendants Lincoln and Smith in their official capacities are dismissed with
prejudice and without leave to amend.
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3 Magistrate Judge Lovric recommended that Plaintiff's ADA claim proceed against Defendants Lincoln and
Smith only in their official capacities because Title II of the ADA does not permit individual capacity suits
against state officials. Dkt. No. 5 at 11 n.6 (quoting Hill v. LaClair, No. 20-cv-441, 2020 WL 2404771, at *7
(N.D.N.Y. May 11, 2020)).
4 To the extent that Plaintiff's ADA claim against Defendants Lincoln and Smith in their official capacities seeks
prospective injunctive relief, such claim may proceed. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(holding that Title II ADA suits for prospective injunctive relief may proceed against individual officers in
their official capacities). However, Plaintiff's ADA claim against Defendants Lincoln and Smith in their official
capacities seeking monetary relief is redundant of Plaintiff's ADA claim against Otsego County. See Johnson
v. New York State Police, 659 F. Supp. 3d 237, 254 (N.D.N.Y. 2023). Accordingly, Plaintiff's ADA claim is
permitted to proceed against Defendants Lincoln and Smith in their official capacities only to the extent it
seeks prospective injunctive relief.
5 As of October 16, 2025, the New York State Andrew Kearse Act is in committee with the New York
State Assembly. See New York State Senate, Assembly Bill A1745, https://www.nysenate.gov/legislation/
bills/2021/A1745.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Zaire v. Doe, Not Reported in F.Supp.2d (2006)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2006 WL 1994848
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
David ZAIRE, Plaintiff,
v.
John/Jane DOE, Deputy Commissioner/
Designee for NYS Department of Corrections;
and Thomas Welch, Corrections Counselor
at Clinton Correctional Facility, Defendants.
No. 9:03-CV-629(FJS/RFT).
|
July 13, 2006.
Attorneys and Law Firms
David Zaire, Dannemora, NY, pro se.
Office of New York State, Attorney General, Maria Moran,
AAG, Hon. Eliot Spitzer, Attorney General for the State of
New York, of counsel, Syracuse, NY, for Defendant Welch.
MEMORANDUM-DECISION AND ORDER
SCULLIN, Senior Judge.
I. INTRODUCTION
*1 Plaintiff brings this action pursuant to 42 U.S.C.
§ 1983 alleging violations of his First Amendment
rights. Specifically, Plaintiff alleges that Defendant Welch
violated his First Amendment rights when he changed
and/or falsified 1 Plaintiff's Department of Correctional
Services' (“DOCS”) records with respect to a therapeutic
program in retaliation for Plaintiff's pursuit of a previous
federal civil rights action. 2 See Complaint at ¶ 19; Report-
Recommendation and Order at 2.
Currently before the Court are Defendant Welch's objections
to Magistrate Judge Treece's Report-Recommendation and
Order. Defendant Welch objects to Magistrate Judge Treece's
recommendation that this Court deny his motion for summary
judgment on Plaintiff's First Amendment retaliation claim
because Magistrate Judge Treece neglected to address the
second element of Plaintiff's claim, i.e., whether Defendant's
actions were adverse. See Defendant Welch's Objections at
1-2.
II. BACKGROUND
Plaintiff previously filed Zaire v. Muller, 9:98-CV-1838, in
this District. That case proceeded to trial, and the jury returned
a verdict in Plaintiff's favor on June 21, 2002. Plaintiff then
moved, in part, for and was granted declaratory and injunctive
relief. 3 He then filed a motion to hold the defendants in that
case in contempt for not complying with the district court's
order; the court denied that motion. From May 10, 2001,
until October 4, 2002, Plaintiff was incarcerated at Clinton
Correctional Facility (“Clinton”). During his incarceration
at Clinton, Plaintiff's Correction Counselor was Defendant
Thomas Welch.
On July 8, 2002, Defendant met with Plaintiff regarding
a Sexual Offenders Program consent form, a document
signifying agreement to participate in that program.
Defendant's signature is on the document, but Plaintiff's is
not. Defendant also noted in Plaintiff's Quarterly Review for
the period from May 4, 2002, through August 26, 2002, that
Plaintiff refused to accept the Sexual Offenders Program on
July 8, 2002, and August 27, 2002. Plaintiff's signature is not
on the quarterly review.
III. DISCUSSION
A. Standard of Review
1. Review ofReport-Recommendation and Order
“When a district court evaluates the report and
recommendation of a magistrate judge, the court may ‘accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.’ “ Wilds v. United
Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003)
(quoting 28 U.S.C. § 636(b)(1)). A party “ ‘may object to
the findings or recommendations of the magistrate judge’
“ within ten days of being served with the report and
recommendation. Id. (citations omitted). When neither party
files objections, “ ‘a district court need only satisfy itself that
there is no clear error on the face of the record’ “ to accept
the report and recommendation. Id. (quoting Nelson v. Smith,
(S.D.N.Y. 1985) 618 F.Supp. 1186, 1189). However, “ ‘[w]hen
an objection is raised, the court is required to conduct a de
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novo review of the contested sections.’ “ Id. at 170 (quoting
Pizarro v. Bartlett (S.D.N.Y.1991) 776 F.Supp. 815, 817).
2. Summary Judgment
*2 A court may grant summary judgment pursuant to
Rule 56(b) of the Federal Rules of Civil Procedure when “
‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’
“ Dibble v. Fenimore, slip copy, No. 1:97-CV-1256, 2006 WL
1373061, *3 (N.D.N.Y. May 15, 2006) (quotation and other
citation omitted). The court must resolve all ambiguities and
draw all rational inferences of fact in favor of the nonmoving
party. See id. (citation omitted). “A dispute regarding a
material fact is genuine ‘if evidence is such that a reasonable
jury could return a verdict for the non-moving party.’ “ Young
v. Corbin, 889 F.Supp. 582, 584 (N.D.N.Y.1995) (quotation
omitted). “Once the movant ... has established a prima facie
case demonstrating the absence of a genuine issue of material
fact, the non-moving party must come forward with enough
evidence to lead a rational trier of fact to find for the
non-moving party.” Id. (citation omitted). Finally, “sworn
statements are more than mere conclusory allegations subject
to disregard ...; they are specific and detailed allegations of
fact, made under penalty of perjury, and should be treated as
evidence in deciding a summary judgment motion.” Scott v.
Coughlin, 344 F.3d 282, 289 (2d Cir.2003) (citing Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir.1995)).
B. Exhaustion of Administrative Remedies
Magistrate Judge Treece recommended that the Court deny
Defendant's motion for summary judgment to the extent
that it was based upon the assertion that Plaintiff has failed
to exhaust his administrative remedies. After stating the
law pertaining to the Prisoner Litigation Reform Act, 42
U.S.C. § 1997(e)(a), and describing the New York State
Department of Correctional Services' three-step process for
exhausting all administrative remedies available to inmates,
Magistrate Judge Treece examined the facts and evidence that
both parties had presented. See Report-Recommendation and
Order at 7-9. Magistrate Judge Treece noted that Plaintiff
stated that he had grieved and appealed his claims of
retaliation and false entries against Defendant in grievance
BRL-5893-02 entitled “Wants Transfer to Downstate HUB,”
which is contrary to Defendant's assertion that Plaintiff failed
to file a grievance regarding these incidents. See id. at 7-8
(citing Plaintiff's 7.1 Statement at ¶ 13; Affidavit of Thomas
Egan, dated July 12, 2005 (“Egan Aff.”), at ¶ 4 & Exhibit
“A” at p. 4; Defendant's 7.1 Statement at ¶ 13). Furthermore,
Magistrate Judge Treece found that the Court could not
ascertain the contents of that grievance because neither party
provided the Court with a copy of the grievance and its title
did not indicate whether the grievance was against Defendant.
See id. at 8. Therefore,, Magistrate Judge Treece found that
the Court could “not deem Plaintiff's claim as unexhausted as
the grievance complaint may very well have brought up the
issues of retaliation and forgery.” See id. at 8-9. Neither party
objects to Magistrate Judge Treece's recommendation that the
Court deny Defendant's motion for summary judgment on the
issue of failure to exhaust administrative remedies.
*3 As Magistrate Judge Treece recognized, under the
Prisoner Litigation Reform Act “[n]o action shall be brought
with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). Furthermore,
[s]o long as the prisoner's grievance “present[s] the relevant
factual circumstances giving rise to a potential claim ...
sufficient under the circumstances to put the prison on notice
of potential claims and to fulfill the basic purposes of the
exhaustion requirement, ... [t]here does not appear to be any
reason to require a prisoner to present fully developed legal
and factual claims at the administrative level.”
Sulton v. Wright, 265 F.Supp.2d 292, 298 (S.D.N.Y.2003)
(quotation and other citation omitted). Additionally, New
York only requires the grievance to include “the grievant's
name, department identification number, housing unit,
program assignment ... [and] a concise, specific description
of the problem and the action requested....” N.Y. Comp.Codes
R. & Reg. tit. 7, § 701.7(a)(i).
Based upon its review of the record, the Court finds that
the conclusion and recommendation that Magistrate Judge
Treece reached is not clearly erroneous. Without being able to
ascertain the contents of grievance number BRL-5893-02, the
Court cannot determine whether Plaintiff's claim is exhausted
because, despite the title stating that the grievance is about
a request for transfer, the Court cannot determine whether
the grievance contained Plaintiff's claims of retaliation and
forgery against Defendant, as he states it does. Accordingly,
the Court adopts Magistrate Judge Treece's recommendation
and denies Defendant's motion for summary judgement to the
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extent that the motion rests upon Plaintiff's failure to exhaust
administrative remedies.
C. First Amendment Retaliation Claim 4
To maintain a claim for First Amendment retaliation, a
plaintiff must demonstrate “ ‘(1) that the speech or conduct
at issue was protected, (2) that the defendant took adverse
action against the plaintiff, and (3) that there was a causal
connection between the protected speech and the adverse
action.’ “ Holmes v. Grant, slip copy, No. 03 Civ. 3426,
2006 WL 851753, *15 (S.D.N.Y. Mar. 31, 2006) (quotation
omitted). Once the plaintiff establishes a prima facie case of
retaliation, “the burden shifts to the defendants ‘to show that
the plaintiff would have received the same punishment even
absent the retaliatory motivation....’ “ Bartley v. Collins, No.
95 Civ. 10161, 2006 WL 1289256, *4 (S.D.N.Y. May 10,
2006) (quotation and other citation omitted). If the defendant
demonstrates that the plaintiff would have received the same
punishment absent retaliatory motive, the plaintiff's claim
fails.
1. Protected-Speech Prong
With respect to the protected-speech prong of a retaliation
claim, it is well established that “[p]risoners have a
constitutional right to petition the government, and it is a
violation of § 1983 for prison officials to retaliate against
prisoners for the exercise of that right.” Id. (citations omitted).
Plaintiff's filing of the civil case Zaire v. Muller is protected
conduct. See Gill v. Pact Org., No. 95 Civ. 4510, 1997 WL
539948, *12 (S.D.N.Y. Aug. 28, 1997) (citation omitted).
Accordingly, the Court adopts Magistrate Judge Treece's
finding that Plaintiff satisfied the first prong of his retaliation
claim.
2. Adverse-Action Prong
*4 To satisfy the adverse-action prong of a retaliation
claim in the prison setting, an inmate must show that
prison officials took adverse action against him. In this
setting, the Second Circuit has “defined ‘adverse action’
objectively, as retaliatory conduct ‘that would deter a similarly
situated individual of ordinary firmness from exercising ...
constitutional rights.’ “ Gill v. Pidlypchack, 389 F.3d 379,
381 (2d Cir.2004) (quotation omitted). However, to prove
an adverse-action, a prisoner need not demonstrate an actual
subjective chill, i.e., that the defendant's action dissuaded him
from further exercising his own rights. See id. at 384.
Plaintiff asserts that Defendant retaliated against him for
filing a civil action in federal court by changing or falsifying
DOCS' records to reflect that Plaintiff refused to participate
in the Sexual Offender Program (“SOP”). See Complaint at ¶
19. Plaintiff asserts that Defendant's entries on July 8, 2002,
and August 27, 2002, were false and harmed him because
DOCS' officials used these entries as a pretext to assert that he
was not eligible for the Close-to-Home transfer program, that
they subjected him to confiscation of ten-years good behavior
allowances, 5 and that they continued his imprisonment past
his previous conditional release date of January 12, 2003. 6
See Complaint at ¶¶ 17-19.
Defendant argues that the entries he made were not an
erroneous change of Plaintiff's position towards the SOP
program because “the Sexual Offender Program was not
available, which is quite different from a claim that records
were changed to indicate a refusal of SOP if Plaintiff had
previously indicated that he would take the program.” See
Defendant's Objections at 2. He further claims that Plaintiff
provides no evidence to indicate that he was on a waiting
list for the SOP as of July 8, 2002, 7 and that he refused
to participate in SOP both before and after his meetings
with Defendant. See id. Moreover, Defendant argues that his
actions were not adverse because they did not deter Plaintiff
from filing grievances after the incidents, that his actions were
in no way threatening and would not have deterred any other
inmate from filing subsequent grievances or lawsuits, and that
his actions were simply de minimus. See id. at 2.
With respect to the circumstances surrounding the
documentation of Plaintiff's refusal to participate in SOP,
Defendant states that, pursuant to DOCS' policy, 8 he
approached Plaintiff on July 8, 2002, and August 27, 2002,
provided him with the opportunity to sign the SOP consent
form, and informed him that refusing to sign the form was
tantamount to refusing the program. See Affidavit of Thomas
Welch, dated July 12, 2005 (“Welch Aff.”), at ¶ 3. Defendant
states that Plaintiff refused to sign the consent form and
that he documented Plaintiff's actions on the form just like
any other prison official would. See id. at ¶ 3, Exhibit “A.”
Contrary to Defendant's account, Plaintiff states that, on July
8, 2002, and August 27, 2002, Defendant did not approach
him with an opportunity to sign the SOP consent form. See
Plaintiff's 7.1 Statement at ¶ 6. Rather, Plaintiff states that
Defendant insisted that he sign a declaration of refusal of the
SOP; and, when he refused to comply, Defendant filled it out
himself. See id. at ¶¶ 6-7. Although Defendant asserts that
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he did not “change” the DOCS' records to reflect a refusal,
Plaintiff's complaint and motion papers indicate that it was
not necessarily a change, but a falsification of his refusal.
See Complaint at ¶¶ 16-18; Plaintiff's Affirmation at p. 1;
Plaintiff's 7.1 Statement at ¶ 6. Thus, an issue of fact exists as
to whether Defendant's alleged action actually occurred.
*5 Assuming such action did occur, the question is whether a
reasonable jury could find such action to be adverse. Contrary
to Defendant's assertion, it is of no consequence whether
Plaintiff was deterred from exercising his constitutional
rights; rather, the question is whether a similarly-situated
inmate would be deterred from exercising his constitutional
rights. Defendant states that his action is not adverse because
he was making an accurate and appropriate documentation
of the facts. See Defendant's Memorandum of Law at 7.
Defendant also claims his action was de minimus and that a
similarly situated inmate would not have been deterred from
exercising his constitutional rights because of Defendant's
actions; however, Defendant offers no evidence to support
his claims, except to say that his conduct was in no way
threatening and that a similarly-situated inmate would not
be deterred from exercising his constitutional rights; he
simply concludes that such is the case. See Defendant's
Objections at 2. However, if a reasonable jury concluded that
Defendant's false entries resulted in officials denying Plaintiff
participation in the Close-to-Home Transfer Program, 9
resulted in a loss of ten-years good behavior allowances, and
continued imprisonment past his previous conditional release
date, it could also conclude that such consequences would
deter a similarly-situated inmate from filing a federal action.
Based upon the above-stated reasons, the Court finds that
a reasonable jury could conclude that Defendant took some
action against Plaintiff and that his action was adverse
because it would deter a similarly-situated inmate of
ordinary firmness from exercising his constitutional rights.
Accordingly, the Court holds that issues of material fact
exist with respect to the adverse-action prong of Plaintiff's
retaliation claim.
3. Causal-Connection Prong
To satisfy the causal-connection prong of a retaliation claim,
an inmate must show “that the protected conduct was a
‘substantial or motivating factor’ in the prison officials'
decision to take action against the plaintiff.” Ciaprazi v.
Goord, No. 9:02 CV 00915, 2005 WL 3531464, *6 (N.D.N.Y.
Dec. 22, 2005) (citations omitted). The court may consider
a number of factors when determining whether a causal
connection exists, including “(1) the temporal proximity
between the protected activity and the alleged retaliatory act;
(2) the inmate's prior good disciplinary record; (3) vindication
at a hearing on the matter; and (4) statements by the defendant
concerning his motivation.” Holmes, 2006 WL 851753, at *15
(citation omitted).
Based upon the record, the Court concludes that a reasonable
jury could find a causal connection between Plaintiff's federal
civil action and Defendant's actions with respect to the
SOP consent form. The temporal proximity between the
favorable verdict in Plaintiff's lawsuit and Defendant's alleged
retaliation is circumstantial evidence of such retaliation.
See Gayle v. Gonyea, 313 F.3d 677, 683 (2d Cir.2002)
(citation omitted). Plaintiff received a favorable verdict on
June 21, 2002, and the first of Defendant's allegedly false
notations that Plaintiff had refused to participate in the SOP
occurred on July 8, 2002, a mere two weeks later. See
Affirmation of Maria Moran, dated July 22, 2005 (“Moran
Aff.”), at Exhibit “1” at 1; Plaintiff's 7.1 Statement at ¶
6. Furthermore, July 8, 2002, was the first time Defendant
approached Plaintiff about SOP; previous entries on the
quarterly review indicate that in February 2002 and May
2002 the program was not available. See Welch Aff. at
Exhibit “B.” In addition, although Defendant states that he
was not aware of the outcome or substance of any legal
actions that Plaintiff was pursuing while he was at Clinton,
Plaintiff contradicts this statement, indicating that he and his
attorney had three different telephone conversations about
his federal civil action, Zaire v. Muller, and that Defendant
was present on each occasion and remained inside the
cubicle office where the conversations were held and sat
three feet away from Plaintiff. See Plaintiff's Affirmation at
p. 2. Additionally, Plaintiff states that his attorney had at
least three conversations with Defendant regarding DOCS'
policies relating to issues raised in Zaire v. Muller. See id.
Moreover, Plaintiff claims that his attorney had a conversation
with Defendant on July 8, 2002, regarding her need to
speak to Plaintiff about post-trial motions. See id. Finally,
Plaintiff contends that, when he questioned Defendant about
the sudden need to have him sign an SOP consent form,
Defendant replied “ ‘[b]ecause you pushed the issue. Now
you have to put up or shut up.’ “ See id. Viewing these
facts in the light most favorable to Plaintiff, a reasonable jury
could find that Plaintiff had established a causal connection
between Defendant's alleged falsification of Plaintiff's DOCS'
records and Plaintiff's successful federal action. Accordingly,
the Court concludes that Plaintiff has raised material issues
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of fact as to the existence of a causal connection between his
federal civil rights action and Defendant's alleged retaliatory
act of falsely noting on the SOP consent form that Plaintiff
has refused the program.
4. Defendant's Burden
*6 Defendant states that “DOCS policy requires that
convicted and incarcerated sex offenders, who are roughly
two to three years away from their earliest release date, sign
a Sexual Offender Program ... participation consent form to
remain eligible for early release ... [and] because SOP is not
offered at Clinton, inmates are requested to sign a consent
form for SOP before transfer to a facility with the program
will be submitted,” and that refusal to sign is interpreted as
a refusal to participate in the program. See Welch Aff. at
¶¶ 2-3. On the other hand, Plaintiff asserts that he was not
aware of any such DOCS' policy and disputes that the form
must be signed in order to receive a transfer because on two
occasions, November 9, 2000, and September 17, 2002, he
submitted transfer requests without signing the SOP consent
form. See Plaintiff's 7.1 Statement at ¶¶ 4-5. Furthermore,
Plaintiff states that he has been eligible for early release since
November 1997, after his initial parole board hearing, and that
he has appeared before the parole board for early release on
three subsequent occasions. See Plaintiff's 7.1 Statement at ¶
4.
Finally, Defendant asserts that part of the criteria for the
SOP is that an inmate admit his sexual offense and that the
demonstration of acceptance of responsibility is integral to
the successful completion of SOP; and, therefore, an inmate's
unwillingness to admit his sexual crimes is construed as
a refusal of the SOP. See Welch Aff. at ¶ 5. However,
Defendant does not cite to any DOCS' policy or provide
the Court with copies of the policies to which he refers.
Furthermore, Plaintiff states that, until his favorable verdict
in Zaire v. Muller, Defendant acknowledged that the SOP was
a moot issue by placing “program not available” entries on
his quarterly evaluations in February 2002 and May 2002.
Although Defendant has submitted documents indicating that
Plaintiff had refused SOP when others had offered it to him 10
and that Defendant was not a party to Plaintiff's federal
litigation, this does not demonstrate, as a matter of law, that
Defendant would have taken the same action against Plaintiff
regardless of the outcome of Plaintiff's litigation. Moreover,
although Defendant argues that any prison official would
document an inmate's refusal to participate in a program,
there is an issue of fact with respect to whether Defendant
offered Plaintiff the opportunity to participate in the program,
Plaintiff refused the program and then refused to sign the
refusal form, or whether Defendant demanded that Plaintiff
sign a refusal to participate and, when Plaintiff would not
comply, filled it out himself. Therefore, the Court finds that
Defendant has not demonstrated, as a matter of law, that he
would have taken the same action against Plaintiff despite the
favorable verdict awarded to Plaintiff in his federal action.
Accordingly, as Plaintiff has created issues of fact regarding
the second and third prongs of his First Amendment
retaliation claim, the Court adopts Magistrate Judge Treece's
recommendation and denies Defendant's motion for summary
judgment.
IV. CONCLUSION
*7 After carefully considering Magistrate Judge Treece's
February 22, 2006 Report-Recommendation and Order,
Defendant's objections thereto, the relevant parts of the
record, and the applicable law, and for the reasons stated
herein, the Court hereby
ORDERS that Magistrate Judge Treece's February 22, 2006
Report-Recommendation and Order is ADOPTED in its
entirety; and the Court further
ORDERS that Defendant's motion for summary judgment is
DENIED with respect to Plaintiff's claims against him in his
individual capacity; and the Court further
ORDERS that Defendant's motion for summary judgment is
GRANTED with respect to Plaintiff's claims against him in
his official capacity; and the Court further
ORDERS that the parties contact Magistrate Judge Treece's
chambers within ten (10) days of the date of this Order to
schedule a final pre-trial conference.
IT IS SO ORDERED
RANDOLPH F. TREECE, Magistrate Judge.
REPORT RECOMMENDATION and ORDER
Pro se Plaintiff David Zaire brings a civil action pursuant
to 42 U.S.C. § 1983, alleging that John/Jane Doe (“Doe”)
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violated his First Amendment rights when Doe “knowingly
and vindictively retaliated” against Plaintiff and violated his
Fifth Amendment rights when Doe “willfully, knowingly, and
vindictively maintained the plaintiff at a hardship traveling
distance” from his family in two prison transfers; Plaintiff
also alleges that Thomas Welch violated his First Amendment
rights when Plaintiff's records were changed in regards to a
therapeutic program in retaliation for a previous federal civil
rights claim brought by Plaintiff. Dkt. No. 1, Compl. at ¶ 19.
Defendant Welch brings this Motion for Summary Judgment.
Dkt. No. 22. For the reasons to follow, it is recommended that
the Motion for Summary Judgment be denied.
I. FACTS
Plaintiff previously filed a federal lawsuit, David Zaire v.
Muller, 9:98-CV-1838, in the Northern District of New York.
Def.'s 7.1 Statement at ¶ 14; see also 9:98-CV-1838, Dkt.
Nos. 1, Compl. & 52, Am. Compl. After a jury trial, a verdict
was returned in Plaintiff's favor on June 21, 2002. 1 Def.'s 7.1
Statement at ¶ 14, Maria Moran Affirm., Ex. 1, Mem. and
Order, dated Nov. 18, 2002; see also 9:98-CV-1838, Dkt. Nos.
63, Jury Verdict & 64, Judgment. Upon the verdict, Plaintiff
moved, in part, for declaratory and injunctive relief, which
was granted. 2 Def.'s 7 .1 Statement at ¶ 14, Moran Affirm.,
Ex. 1, Mem. and Order at pp. 1-2; see also 9:98-CV-1838,
Dkt. No. 72, Mem. and Order, dated Nov. 18, 2002.
Prior and subsequent to Plaintiff's previous lawsuit, Plaintiff
was incarcerated at Clinton Correctional Facility (“Clinton”)
from May 10, 2001 until October 4, 2002. Def.'s 7.1
Statement at ¶ 2. During that period of time, Thomas
Welch was Plaintiff's Correction Counselor. Id. Plaintiff's
incarceration was a result of convictions which included rape
in the first degree and sodomy in the first degree. Id. at ¶ 3.
*8 Sexual offenders are to participate in Sexual Offender
Program (“SOP”). Id. at ¶ 4. SOP is not offered at Clinton. Id.
at ¶ 5. On July 8, 2002, Welch met with Plaintiff regarding a
SOP consent form, which is a document for the agreement to
participate in the sex offender counseling program; the form
was signed by Welch but Plaintiff's signature was not on the
document. Id. at ¶ 6; Dkt. No. 22, Thomas Welch Aff., Ex.
A, Clinton SOP Form. In Plaintiff's Quarterly Review for the
period of May 4, 2002 to August 26, 2002, Welch noted on
the document that Plaintiff refused to accept SOP on July 8,
2002 and August 27, 2002; Plaintiff did not sign the Quarterly
Review. Def.'s 7.1 Statement at ¶ 7; Welch Aff, Ex. B, Inmate
Review Worksheet, dated Aug. 27, 2002.
II. DISCUSSION
A. Summary Judgment Standard
Pursuant to FED.R.CIV.P. 56(c), summary judgment is
appropriate only where “there is no genuine issue as to
any material fact and ... the moving party is entitled to
judgment as a matter of law.” The moving party bears
the burden to demonstrate through “pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any,” that there is no genuine issue of
material fact. F.D.I. C. v. Giammettei, 34 F.3d 51, 54 (2d
Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). “When a party has moved for summary judgment on
the basis of asserted facts supported as required by [Federal
Rule of Civil Procedure 56(e) ] and has, in accordance with
local court rules, served a concise statement of the material
facts as to which it contends there exist no genuine issues to
be tried, those facts will be deemed admitted unless properly
controverted by the nonmoving party.” Glazer v. Formica
Corp., 964 F.2d 149, 154 (2d Cir.1992).
To defeat a motion for summary judgment, the nonmoving
party must “set forth specific facts showing that there is a
genuine issue for trial,” and cannot rest on “mere allegations
or denials” of the facts submitted by the moving party.
FED.R.CIV.P. 56(e); see also Scott v. Coughlin, 344 F.3d
282, 287 (2d Cir.2003) (“Conclusory allegations or denials
are ordinarily not sufficient to defeat a motion for summary
judgment when the moving party has set out a documentary
case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 525-26 (2d Cir.1994). To that end, sworn statements
are “more than mere conclusory allegations subject to
disregard ... they are specific and detailed allegations of
fact, made under penalty of perjury, and should be treated
as evidence in deciding a summary judgment motion” and
the credibility of such statements is better left to a trier of
fact. Scott v. Coughlin, 344 F.3d at 289 (citing Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir.1995) and Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir.1983)). Furthermore, “[a]
dispute regarding a material fact is genuine ‘if evidence is
such that a reasonable jury could return a verdict for the
non-moving party.’ “ Young v. Corbin, 889 F.Supp. 582, 584
(N.D.N.Y.1995) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
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*9 When considering a motion for summary judgment, the
court must resolve all ambiguities and draw all reasonable
inferences in favor of the nonmoving party. Nora Beverages,
Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d
Cir.1998). “[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir.1994).
B. John/Jane Doe
This Court previously stated to Plaintiff that “[i]n order to
pursue his claim against ‘John Doe’ Defendants, Plaintiff
must take reasonable and expeditious steps to ascertain their
identities and then file a motion to amend seeking leave of
the Court to bring such named individuals into this action.”
Dkt. No. 4, Order, dated May 29, 2003. The U.S. Marshals
also noted they could not serve John/Jane Doe as they were
not named. Dkt. No. 5. On January 16, 2004, the Honorable
Frederick J. Scullin, Chief United States District Court Judge,
issued an Order whereby it was noted that Plaintiff had
provided an affidavit stating he had submitted a letter to Mr.
Anthony Annucci, Deputy Commissioner and Counsel for the
Department of Correctional Services, seeking the identities of
the “John/Jane Doe” Defendant[s]. Dkt. No. 8, Order, dated
Jan. 16, 2004; Dkt. No. 7, David Zaire Aff., dated Dec. 1,
2003, at ¶ 3. Plaintiff further stated that since he received
no response to his inquiry, he sent a follow up letter, for
which he also did not receive a response. Order, dated Jan. 16,
2004; Zaire Aff. ¶ 4. Judge Scullin ordered that “Plaintiff's
request for assistance in ascertaining the identity or identities
of the ‘John/Jane Doe’ Defendant(s) is DENIED WITHOUT
PREJUDICE TO RENEW at a later time.” Plaintiff made
no further application to the Court.
However, Plaintiff, in his Response to the Motion for
Summary Judgment, asks the Court not to dismiss the action
as to the “John/Jane Doe” Defendants but Plaintiff also does
not make a formal motion for court intervention. Dkt. No. 23,
David Zaire Affirm. at p. 4. Plaintiff does submit three letters,
dated August 28, 2002, July 14, 2003, and August 4, 2003,
whereby he attempted to ascertain the identities of the “John/
Jane Doe” Defendants. Id., Ex. A. Nevertheless, the Court is
unaware of any steps taken by Plaintiff subsequent to Judge
Scullin's January 16, 2004 Order to identify the “John/Jane
Doe” Defendants. To that extent, Plaintiff may file a motion
for court intervention to aid in his identification of the “John/
Jane Doe” Defendants. If Plaintiff chooses to file the motion,
Plaintiff is to provide the Court with information as to his
attempts to ascertain the identities after the issuance of the
January 16, 2004 Order.
C. Eleventh Amendment
*10 Plaintiff brings suit against Defendant Welch in his
official capacity and, although Plaintiff does not specifically
state that he is suing Defendant in his individual capacity,
it will be assumed as prisoners suing pursuant to § 1983
normally sue in both capacities. Compl. at ¶ 3. Plaintiff seeks
punitive damages against Defendant Welch in his individual
and official capacities. Id. at ¶ 21.
The Eleventh Amendment states “[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 Eleventh Amendment bars a suit against the state
in federal court unless the state consents to being sued or
Congress legislatively overrides a state's immunity. Huang v.
Johnson, 251 F.3d 65, 69 (2d Cir.2000). The state's immunity
extends to state officials “act[ing] on behalf of the state”
when the state is the “ ‘real, substantial party in interest.’ “
Id. at 69-70 (citing Puerto Rico Aqueduct & Sewer Auth. v.
Metcalf & Eddie, Inc., 506 U.S. 139, 142-47 (1993) & quoting
Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89,
101-02 (1984)). Moreover, the Eleventh Amendment will bar
recovery for money damages in a suit “against state officials
in their official capacities.” Ford v. Reynolds, 316 F.3d 351,
354 (2d Cir.2003).
Therefore, Defendant Welch cannot be sued in his official
capacity in a claim for money damages. However, Zaire may
seek damages from him in his individual capacity.
D. Exhaustion of Remedies
Plaintiff states that he exhausted his remedies in regards to
his retaliatory and false entries claims against Welch. Pl.'s 7.1
Statement at ¶ 13. Defendants allege, however, that Plaintiff
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did not file a grievance or appeal as to this claim for either the
July or August 2002 incidents. Def.'s 7.1 Statement at ¶ 13.
The Prisoner Litigation Reform Act of 1995 (“PLRA”), 42
U.S.C. § 1997(e)(a), states that “[n]o action shall be brought
with respect to prison conditions under [section 1983], or any
other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.” This exhaustion requirement
“applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Ziemba
v. Wezner, 366 F.3d 161, 163 (2d Cir.2004).
The New York State Department of Corrections has created
a three-step process to exhaust all administrative remedies
available to inmates. See Abney v. McGinnis, 380 F.3d 663,
668 (3d Cir.2004). First, the inmate must file a grievance
complaint with the Grievance Clerk within fourteen (14)
days of the incident. N.Y. COMP.CODES R. & REGS.
tit. 7, § 701.7(a)(1). The complaint is then submitted to
the IGRC to review the grievance. N.Y. COMP.CODES R.
& REGS. tit. 7, § 701.7(a)(2)-(5). Second, if the inmate
appeals the IGRC decision, then the inmate may appeal to the
Superintendent. See N.Y. COMP.CODES R. & REGS. tit. 7,
§ 701 .7(b). Third, if the inmate appeals the Superintendent's
determination, the CORC is to make a final administrative
determination. N.Y. COMP.CODES R. & REGS. tit. 7, §
701.7(c). Upon the completion of all three steps, an inmate
may “seek relief pursuant to 42 U.S.C. § 1983.” Colon v.
Harvey, 344 F.Supp.2d 896, 897 (W.D.N.Y.2004) (citing Neal
v. Goord 267 F.3d 116, 122 (2d Cir.2001); Santos v. Hauck,
242 F.Supp.2d 257, 259 (W.D.N.Y.2003)).
*11 If a prisoner's grievance “ ‘presents the relevant factual
circumstances giving rise to a potential claim ... sufficient
under the circumstances to put the prison on notice of
potential claims and to fulfill the basic purposes of the
exhaustion requirement ... [then] there does not appear to be
any reason to require a prisoner to present fully developed
legal and factual claims at the administrative level. Sulton
v. Wright, 265 F.Supp.2d 292, 298 (S.D.N.Y.2003) (quoting
Irvin v. Zamora, 161 F.Supp.2d 1125, 1134-35 (S.D.Cal.2001)
and further citing Lewis v. Washington, 197 F.R.D. 611, 614
(N.D.Ill.2000)); see also Strong v. David, 297 F.3d 646,
649-50 (7th Cir.2002) (citing Booth v. Churner, 532 U.S. 731
(2001) for the proposition that the PLRA requires prisoners to
exhaust a process and not a remedy). Indeed, New York State's
regulations prescribing the content to be included in a prisoner
grievance states that in addition to administrative information,
such a grievant's name and housing unit, the grievance “must
contain a concise, specific description of the problem and the
action requested....” N.Y. COMP.CODES R. & REGS. tit. 7,
§ 701.7(a)(1)(I).
Here, Plaintiff states he did grieve and appeal his
claim of retaliation and false entries against Welch in
complaint BRL-5893-02, which is entitled “Wants Transfer
to Downstate HUB.” Pl.'s 7.1 Statement at ¶ 13; Dkt. No.
22, Thomas Eagen Aff., Ex. A at p. 4. This complaint
was appealed to the CORC. Eagen Aff. at ¶ 4. However,
this Court cannot ascertain the contents of the complaint as
neither Plaintiff nor Defendant provided documentation of
that complaint and the title does not provide any insight as
to whether the complaint was against Welch. Furthermore,
the Court cannot deem Plaintiff's claim as unexhausted as the
grievance complaint may very well have brought up the issues
of retaliation and forgery.
Therefore, it is recommended that the Motion for Summary
Judgment on the issue of exhaustion be denied.
D. First Amendment Claim
Plaintiff alleges that Welch violated his First Amendment
rights when Welch “knowingly, vindictively and maliciously”
changed his Department of Correctional Services (“DOCS”)
records to express a refusal to participate in SOP “in direct
retaliation for ... exercising his right to pursue a federal civil
rights claim.” Compl. at ¶ 19.
In order to prevail on a retaliation claim, a plaintiff bears the
burden to prove, “first, that he engaged in constitutionally
protected conduct and, second, that the conduct was a
substantial or motivating factor for the adverse actions
taken by prison officials.” Bennett v. Goord, 343 F.3d 133,
137 (2d Cir.2003). A plaintiff may meet the burden of
proving an inappropriate retaliatory motive by presenting
circumstantial evidence of a retaliatory motive, thus obviating
the need for direct evidence. Id. at 139 (holding that plaintiff
met his burden in proving retaliatory motive by presenting
circumstantial evidence relating to, inter alia, the temporal
proximity of allegedly false misbehavior reports and the
subsequent reversal of the disciplinary charges on appeal
as unfounded). If the plaintiff can carry that burden, the
defendants will still be entitled to summary judgment if they
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can show, by a preponderance of the evidence, that they would
have taken the same action in the absence of the prisoner's
First Amendment activity. Davidson v. Chestnut, 193 F.3d
144, 148-49 (2d Cir.1999); see Hynes v. Squillace, 143 F.3d
653, 657 (2d Cir .1998); see also Lowrance v. Achtyl, 20 F.3d
529, 535 (2d Cir.1994).
*12 Here, since Defendant Welch “does not dispute that an
inmate may file a civil right lawsuit,” the first element is not at
issue. Dkt. No. 22, Def. Mem. of Law at p. 6. However, Welch
does repugn the existence of a causal connection between the
protected activity, the filing of a lawsuit, and the actions taken
by Welch. Id.; see also Bennett, 343 F.3d at 137. Welch also
disputes that he subjected Plaintiff to any adverse actions.
Def. Mem. of Law at p. 6.
Defendant Welch states that DOCS policy requires inmates
who are convicted as sex offenders to sign a SOP participation
consent form to stay eligible for early release and that the form
must be signed before there the prisoner can be transferred to
a facility with the program. 3 Def.'s 7.1 Statement at ¶¶ 4 &
5; Welch Aff. at ¶ 2. Plaintiff states he not aware of any such
DOCS policy and he disputes that the form must be signed
in order to receive a transfer. Pl.'s 7.1 Statement at ¶¶ 4 &
5. Plaintiff notes that on two occasions, November 9, 2000
and September 17, 2002, transfer requests were made without
signing the SOP consent form. Id. at ¶ 5.
On July 8, 2002, Welch submits that he approached Plaintiff
with an opportunity to sign the SOP consent form but that
Plaintiff had refused. Def.'s 7.1 Statement at ¶ 6; Welch Aff. at
¶ 3. Plaintiff, on the other hand, contends that Welch insisted
that he “sign a declaration of refusal of the SOP” and then
proceeded to “fill[ ] out the refusal on his own when Plaintiff
would not comply with his demand.” Pl.'s 7.1 Statement at
¶ 6. Plaintiff states that when he questioned Welch as to the
need to sign an SOP refusal, Welch's response was “because
you pushed the issue. Now you have to put up or shut up.”
Dkt. No. 23, David Zaire Affirm. at p. 2. Plaintiff claims
that the timing of this statement “was obviously connected
to Plaintiff's just-completed litigation.” Zaire Affirm. at p.
2. The verdict had been returned on June 21, 2002. Moran
Affirm., Ex. 1, Mem. and Order at p. 1. On August 27, 2002,
Plaintiff met with Welch in regards to Plaintiff's Quarterly
Review. Pl.'s 7.1 Statement at ¶ 7; Def.'s 7.1 Statement at ¶
7; Welch Aff. at ¶ 4. At that time, the SOP consent form was
discussed; however, Welch contends that while he provided
Plaintiff with another opportunity to sign the form, Plaintiff
refused to sign it. Def.'s 7.1 Statement at ¶ 7; Welch Aff.
at ¶ 4. Notwithstanding, Plaintiff alleges that Welch was
“attempting to obtain a signed refusal ... in order to nullify
entries previously made in Plaintiff's records[.]” Pl.'s 7.1
Statement at ¶ 7.
Plaintiff claims that Welch's entries on July 8 and August 27,
2002, were false and in retaliation for Plaintiff's previously
filed lawsuit, David Zaire v. Muller. Welch Aff. at ¶ 9; Zaire
Affirm. at p. 2. Welch avers that he “was not aware of the
outcome or substance of any legal actions [Plaintiff] was
pursuing while he was at Clinton.” Welch Aff. at ¶ 9. Plaintiff,
on the other hand, purports that prior to trial on the Muller
case, he participated in three telephone conversations with
his attorney regarding the issues of the trial while at Clinton.
Zaire Affirm. at p. 2. Furthermore, Welch “was present on
each occasion and remained inside the small cubicle office
where the conversations were held, sitting just three feet
away[.]” Id.
*13 Plaintiff has met his initial burden of producing
sufficient evidence to raise a question of material fact about
whether retaliation was a substantial factor in the entries
refusing to participate in SOP. The temporal proximity
between the favorable verdict of his lawsuit and the alleged
retaliation provides circumstantial evidence of retaliation. See
Gayle v. Gonyea, 313 F.3d 677, 683 (2d Cir.2002). The verdict
was rendered on June 21, 2002. The first attempt to obtain a
signature on the SOP consent form occurred on July 8, 2002,
only about two weeks after the verdict. Welch also attempted
to obtain Plaintiff's signature on August 27, 2002 during the
Quarterly Review. And despite the fact that the jury trial had
ended, Plaintiff had an outstanding motion for attorney's fees,
reimbursement costs, and declaratory and injunctive relief,
which may have possibly influenced Welch. Moran Affirm.,
Ex. 1, Mem. and Order; Zaire Affirm. at p. 3.
As Plaintiff has met his burden, Defendant Welch may still
be entitled to summary judgment if he can prove, by a
preponderance of the evidence, that he would have taken the
same action in the absence of Plaintiff's prior lawsuit. Welch
provides an affidavit whereby he presents reasons for the need
for an SOP consent form. Welch submits that it is standard
DOCS policy to require convicted sexual offenders, “who are
roughly two to three years away from their earliest release
date, sign a Sexual Offender Program ... participation consent
form to remain eligible for early release.” Welch Aff. at ¶ 2.
Welch further states that prisoners are requested to sign the
consent form before a prisoner can be transferred to another
facility to enroll in SOP. Id. Refusal to sign the consent form
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is interpreted as a refusal to participate in the program. Id.
at ¶ 3. Defendant Welch also states that one of the criteria to
enter SOP is that the participant must accept his or her sexual
offenses and that because Plaintiff maintains his innocence,
“DOCS policy construes the plaintiff's unwillingness to admit
his sexual crimes as a refusal of the program.” Id. at ¶
5. However, Welch points to no specific DOCS policies
regarding SOP. Furthermore, Welch did not provide any
copies of the DOCS policies to which he makes reference.
Plaintiff states that up until his favorable verdict in David
Zaire v. Muller, Welch “had been routinely acknowledging
that the SOP was a moot issue” by placing Program Not
Available (“PNA”) entries on the quarterly evaluations for
February 2002 and May 2002. Zaire Affirm. at p. 2; Welch
Aff., Ex. B, Inmate Review Worksheet, dated Aug. 27, 2002.
Defendant Welch has not met his burden of establishing as a
matter of law that he would have taken the same action in the
absence of Zaire's First Amendment activity.
Therefore, it is recommended that the Motion for Summary
Judgment be denied.
III. CONCLUSION
For the reasons stated herein, it is hereby
*14 RECOMMENDED, that the Motion for Summary
Judgment (Dkt. No. 22) be DENIED; and it is further
ORDERED, that Plaintiff may, if he chooses, file a motion
for court intervention to aid in his identification of the John/
Jane Doe Defendants; such motion shall be filed no later than
April 7, 2006. Should Plaintiff fail to file such motion, the
Clerk is directed to forward this matter to the undersigned for
the issuance of a report-recommendation wherein the Court
will recommend dismissal of the claim against the John/Jane
Doe Defendants which will be deemed abandoned; and it is
further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 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. 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.2d, 2006 WL 1994848
Footnotes
1 In his motion papers Plaintiff uses the term “changed;” however, in his complaint, he indicates that Defendant
made false entries in his record. See Complaint at ¶¶ 16-18.
2 Plaintiff's complaint also names John/Jane Doe as Defendants. Two of Plaintiffs three causes of action
pertain to John/Jane Doe. In his Report-Recommendation and Order, Magistrate Judge Treece ordered that
“Plaintiff may, if he chooses, file a motion for court intervention to aid in his identification of John/Jane Doe
Defendants....” See Report-Recommendation and Order at 13. Plaintiff did file a motion for court intervention
and that motion is currently pending before Magistrate Judge Treece. See Dkt. No. 26.
3 Magistrate Judge Treece noted that, “[i]n Plaintiff's claim for declaratory and injunctive relief, he sought to
participate in the Family Reunion Program (“FRP”); however, the Defendants' position in that case was that
Plaintiff first needed to complete the Sexual Offender Program (“SOP”) in order to qualify for FRP.” See
Report-Recommendation and Order at 2 n. 2.
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4 Magistrate Judge Treece found that, under the Eleventh Amendment, Plaintiff could not sue Defendant Welch
in his official capacity. See Report-Recommendation and Order at 6. Defendant Welch states that he does
not object to this finding and asks the Court to dismiss the claims against him in his official capacity. Plaintiff
filed no objections. Accordingly, the Court adopts Magistrate Judge Treece's finding that Plaintiff cannot sue
Defendant Welch in his official capacity.
5 Plaintiff states that the DOCS' Commissioner noted that Plaintiff “has refused to address assessed needs of
the therapeutic program.” See Complaint at ¶ 18.
6 Plaintiff's 7.1 Statement and his Complaint list the main harm that Defendant's retaliatory action caused as
the denial of his participation in the Close-to-Home Transfer program. However, his complaint includes all
of the above-listed injuries.
7 Plaintiff notes in his affirmation that he does not allege that he was on an “active waiting list” for SOP as of
July 8, 2002. See Plaintiff's Affirmation at 2 n. 1.
8 Plaintiff and Defendant provide conflicting views of DOCS' policy regarding SOP consent forms and transfer
submissions and the circumstances surrounding the documentation of Plaintiff's refusal to participate in the
SOP. Defendant indicates that DOCS' policy states that, in order for Plaintiff to remain eligible for early
release, within two or three years of the earliest date for release, Plaintiff must sign an SOP consent.
Furthermore, Defendant states that in order to submit a transfer request to a facility with a SOP, the SOP
consent form must be signed. See Welch Aff. at ¶¶ 2-3. Plaintiff, however, states that he is not aware of any
such policies and that he previously has been transferred to facilities offering SOP without signing the form.
See Plaintiff's 7.1 Statement at ¶¶ 4-5.
9 Plaintiff states that his wife has medical conditions and transfers out of “Shawangunk's lower Hudson Valley
would impose hardship traveling distance upon his wife and possibly exacerbate her medical conditions.”
See Complaint at ¶ 7.
10 As part of his submissions, Defendant included affidavits from Zaire v. Muller. It appears that Defendant
submitted these forms to show Plaintiff's continued refusal of SOP and to show that Plaintiff, therefore, refused
SOP on the occasions at issue in this case. However, the Court cannot determine, as a matter of law, based
upon Plaintiff's alleged prior and subsequent refusals that he necessarily refused an opportunity for SOP
when Defendant offered it to him because there is an issue of fact concerning whether Defendant offered
SOP to Plaintiff or just demanded that he sign a refusal. Furthermore, according to Plaintiff, one of these
affidavits contains a forged signature, and another one has a note from Plaintiff stating that he had never
refused SOP. See Plaintiff's Affirmation at p. 3 n. 1; Moran Aff., at Exhibit “3” at Exhibits “B” & “C.”
1 Plaintiff was awarded “$1.00 in damages as to three of the four defendants.” Def.'s 7.1 Statement, Maria
Moran Affirm., Ex. 1, Mem. and Order, dated Nov. 18, 2002, at p. 1; see also 9:98-CV-1838, Dkt. No. 72,
Mem. and Order, dated Nov. 18, 2002.
2 In Plaintiff's claim for declaratory and injunctive relief, he sought to participate in the Family Reunion Program
(“FRP”); however, the Defendants' position in that case was that Plaintiff first needed to complete the Sexual
Offender Program (“SOP”) in order to qualify for FRP. Def.'s 7.1 Statement, Moran Affirm., Ex. 1, Mem. and
Order at pp. 1-2; see also 9:98-CV-1838, Mem. and Order, dated Nov. 18, 2002.
3 A copy of the policy was not provided to the Court.
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