Meyers v. Hughes et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Devin Meyers,
Plaintiff,
v. 1:26-CV-387
(BKS/MJK)
Christian Hughes et. al.,
Defendant.
_____________________________________________________________________
Devin Meyers, Pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Brenda K. Sannes, Chief U.S. District Judge:
ORDER & REPORT-RECOMMENDATION
Meyers began this action on March 11, 2026, by filing a
Complaint, and moving for leave to proceed in forma pauperis (“IFP”)
(Dkts. 1, 2). The Clerk sent Meyers’s Complaint and IFP application to
this Court for review. (Dkts. 1, 2).
I. BACKGROUND
On May 3, 2019, Meyers “contacted the police about an issue” he
“had with some” of his former coworkers. (Complaint Facts, Dkt. 1-1, at
pg. 1). Meyers, while on the phone, told the dispatcher that he felt
threated by his former coworkers and that “the place of business acted
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generally unlawfully.” (Id.). At some point, the dispatcher transferred
Meyers to Defendant Deputy Christian Hughes of the Jefferson County
Sheriff’s Office. (Id.). During this call, Hughes asked Meyers “if he could
come to” his “place of residence and speak to” Meyers “about the issue.”
(Id.). Meyers agreed. (Id.). But at no time during the call did Meyers
make a “suicidal remark.” (Id.). He neither expressed suicidal ideation
nor reported any mental disorder. (Id.).
Once he arrived at Meyers’s home, Hughes began “look[ing]
through [Meyers’s] personal belongings without any kind of reasonable
suspicion or permission.” (Id.). Hughes then handcuffed Meyers and
told him that he was taking him to a mental health facility. (Id.).
Meyers repeatedly rebuffed Hughes. (Id.). But he still took Meyers to a
mental health facility. See (id.). Once the two arrived at the hospital,
Meyers asked the hospital intake staff if he could leave, and the staff
responded no because “a police officer brought [him] there.” (Id.).
Meyers was committed at the mental health facility for three
days. (Id.). During his involuntary commitment, hospital staff “forced”
Meyers “to be on medication, and” he was “pressured to say that” he
“was feeling suicidal at the time of the arrest.” (Id.). Meyers “did
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whatever [hospital staff] asked” him to do because “he wanted to leave
as soon as possible.” (Id.).
At some point, Hughes “falsified [a] police report.” (Id.). Because
Hughes arrested him, Meyers has “had a lot of issues with background
checks for employment and purchasing insurance.” (Id. at pg. 2).
Meyers has also “been disqualified for a specific job because [he] ha[s] a
history of hospitalization for mental health.” (Id.).
Now, Meyers is suing Hughes and the Jefferson County Sherrif’s
Office, under 42 U.S.C. § 1983, alleging a false arrest, violating the
Fourth Amendment, a federal criminal law claim, defamation, and
Freedom of Information Law (FOIL) claim. (Id.).
II. IFP APPLICATION
Meyers declares in his IFP applications that he is unable to pay
the filing fee. (Dkt. 2). And after reviewing his application, this Court
finds that Meyers is financially eligible for IFP status.
III. STANDARD OF REVIEW
In addition to determining whether a plaintiff meets the financial
criteria to proceed IFP, courts must also review the sufficiency of the
allegations in the complaint under 28 U.S.C. § 1915. That statute
requires a court to dismiss a case—at any time—if it determines that
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the action is (1) frivolous or malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks monetary relief against a defendant
who is immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); 28
U.S.C. § 1915. 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. Eldredge, 505 F.2d 802,
804 (8th Cir. 1974).
To be sure, courts have a duty to show liberality toward pro se
litigants and must use extreme caution when sua sponte dismissing pro
se complaints before adverse parties have been served and had an
opportunity to respond. See Fitzgerald v. First E. 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). But courts still have a responsibility to determine that a
claim is not frivolous before permitting a plaintiff to proceed. See id.
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IV. DISCUSSION
After examining the Complaint, this Court recommends the
District Court dismiss certain claims and allow other claims to proceed.
First, the Court recommends the District Court allow Meyers’s false
arrest claim to proceed. Second, the Court recommends the District
Court dismiss Meyers’s defamation claim without prejudice and with
leave to amend. Third, the Court recommends the District Court
dismiss Meyers’s federal criminal law claim without prejudice and
without leave to amend. Fourth, and finally, the Court recommends the
District Court dismiss Meyers’s FOIL claim without prejudice and
without leave to amend.
A. Meyers plausibly alleges that Hughes apprehended and
involuntarily committed him without probable cause.
The District Court should allow Meyers’s false arrest claim to
proceed. To state a false arrest claim, plaintiffs must plausibly allege
that the defendant intended to confine the plaintiff, the plaintiff was
conscious of the confinement, the plaintiff did not consent to the
confinement, and the confinement was not otherwise privileged. Here,
Meyers alleges that Hughes went to his house, and without reason,
handcuffed Meyers and involuntarily committed him to a mental health
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facility. As a result, the Court recommends the District Court allow
Meyers’s false arrest claim to proceed.
“A § 1983 claim for false arrest derives from the Fourth
Amendment right to remain free from unreasonable seizures, which
includes the right to remain free from arrest absent probable cause.”
Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 294 (S.D.N.Y. 2015)
(cleaned up). When “analyzing § 1983 claims for unconstitutional false
arrest, courts” look “to the law of the state in which the arrest
occurred.” Id. (cleaned up). “In New York, to prevail on a false arrest
claim, 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.” Guan v. City of New York, 37 F.4th 797, 804
(2d Cir. 2022). “False arrest claim[s] may be based on . . . an arrest for
an emergency psychiatric evaluation.” Id. (cleaned up).
Examining elements one and four, Hughes intended to confine
Meyers and the confinement was not privileged. “For a mental health
arrest, police officers must have reasonable grounds for believing that
the person seized is dangerous to herself or others.” Guan, 34 F.4th at
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805. (cleaned up). Here, Hughes “looked through” Meyers’s “belongings
without any kind of reasonable suspicion or permission. Hughes then
handcuffed Meyers, told him that he was going take Meyers to a mental
health facility, and Meyers begged Hughes not to have him committed.
(Complaint Facts, Dkt. 1-1, at pg. 1). Hughes, ignoring those pleas, took
Meyers to the hospital even though Meyers never report suicidal
ideation or any mental disorder. (Id.). Read liberally, Hughes intended
to confine Meyers even though there was no reason to involuntarily
commit him. As a result, the Court finds that Meyers plausibly alleges
elements one and four.
Examining element two, Meyers was aware of the confinement.
Meyers, in his Complaint, details his stay at the hospital. “While at the
hospital” Meyers “was forced to be on medication, and pressured to stay
that” he “was feeling suicidal at the time of arrest.” (Complaint Facts,
Dkt. 1-1, at pg. 1). Meyers “did whatever [hospital staff] asked [because
he] wanted to leave as soon as possible.” (Id.). Given his awareness,
Meyers has plausibly alleged element two.
Element three is easily established. Meyers, throughout the
Complaint, notes that he did not want to be committed. See, e.g., (id.) (“I
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asked multiple times if I could leave. They stated that since a police
officer brought me there, I had to stay); (id.) (“contrary to what is stated
on the police report I asked him multiple times not to” take “me to the
mental hospital.”); cf. (id.) (“Hughes falsified the police report, and
made an intentional false arrest.”). Thus, the Court finds that Meyers
has plausibly alleged element three. See, e.g., Mooney v. Cnty. of
Monroe, 508 F. Supp. 2d 222, 224–25 (W.D.N.Y. 2007) (finding that the
plaintiff plausibly alleged a false imprisonment claim where the
“plaintiff's complaint alleges that [defendant] caused him to be confined
at the hospital on November 23, 2005 and for several days thereafter,
against his will and in contravention of his repeated demands for
release.”).
In sum, Meyers plausibly alleges a false arrest claim under
§1915’s forgiving standard of review. In his Complaint, Meyers needed
to plausibly allege that Hughes intended to confine him, Meyers was
aware of the confinement, Meyers did not consent to the confinement,
and the confinement was not privileged. The Complaint plausibly
alleges those elements. So, this Court recommends the District Court
allow Meyers’s false arrest claim to survive initial review.
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B. Meyers has not plausibly alleged that the defamatory
words were either published or injured him.
The Court recommends the District Court dismiss Meyers’s
defamation claim. To state a claim for defamation, plaintiffs must
plausibly allege, among other things, that the defamatory words were
published and injured the plaintiff. But here, Meyers never alleges that
false police report was published. Yet he does allege that the unlawful
arrest—not the false police report—injured him. In other words, Meyers
has not stated a defamation claim. And because he has not, the Court
recommends the District Court dismiss Meyers’s defamation claim
without prejudice and with leave to amend.
“Under New York law, spoken defamatory words are slander;
written defamatory words are libel.” Frederique v. Cnty. of Nassau, 168
F. Supp. 3d 455, 487 (E.D.N.Y. 2016) (internal citations omitted). “New
York requires a libel plaintiff to prove five elements: (1) a written
defamatory statement of fact regarding the plaintiff; (2) published to a
third party by the defendant; (3) defendant’s fault, varying in degree
depending on whether plaintiff is a private or public party; (4) falsity of
the defamatory statement; and (5) injury to plaintiff.” Meloff v. New
York Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001).
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Meyers has not plausibly alleged a defamation claim. In his
Complaint, Meyers writes that “Hughes stated [in] his police report that
he was called to [the Meyers] residence regarding a mental disorder”
but “no kind of mental disorder was reported on the calls to the police.”
(Complaint Facts, Dkt. 1-1, at pg. 1) (cleaned up). Yet “Hughes falsified
the police report” noting that Meyers “made a suicidal remark” even
though Meyers “did not.” (Id.). Examining the allegations, the District
Court can find that Meyers plausibly alleges elements 1, 3, and 4, by
contending that Hughes falsified a police report to support his arrest of
Meyers, a private party.
But there are two issues with Meyers’s defamation claim. The first
issue is publication. Meyers does not allege that anyone saw the false
police report. See generally (id.). And because there is no allegation that
anyone read the false police report, there is no publication, and
therefore no defamation. But even if the Court were to construe the
Complaint to allege publication, there is no defamation because of the
second issue. The second issue with the allegation is injury. “Because”
of “the arrest” Meyers has “had a lot of issues with background checks
for both employment and purchasing insurance.” (Id at pg. 2)
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(emphasis). Meyers has also “been disqualified for [a] specific job
because” he has “a history of hospitalization for mental health.” (Id.).
He has “even been disqualified from jobs because of [the] false mental
health arrest.” (Id.). Put differently, the arrest caused the injury, not
the false police report. In fact, nothing in the Complaint can be
construed as alleging that employers (or a specific employer) read the
false police report. In short, Meyers’s Complaint does not plausibly
allege the publication or injury elements of defamation.
Meyers’ defamation claim may be time barred. “The statute of
limitations for defamation in New York is one year.” Lehman v.
Discovery Commc’ns, Inc., 332 F. Supp. 2d 534, 537 (E.D.N.Y. 2004)
citing N.Y. C.P.L.R. §215(3). Libel claims “accrue at the time of the first
publication, which is defined as the earliest date on which the work was
placed on sale or became generally available to the public.” Id. (cleaned
up). Here, assuming the false police report was published, it most likely
would have been contemporaneous with the arrest, which occurred on
May 3, 2019. (Complaint Facts, Dkt. 1-1, at pg. 1). But Meyers filed this
Complaint on March 11, 2026—far later than one year after the
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document was created. As a result, Meyers’s defamation claim may be
time barred.
C. Meyers cannot bring a claim under the federal criminal
law.
The District Court should dismiss Meyers’s federal criminal law
claim. Private citizens “cannot prosecute a criminal action in federal
court. Uppal v. Bank of Am., No. 18-CV-3085, 2018 WL 10323032, at *2
(S.D.N.Y. Oct. 4, 2018) (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.”). Here, Meyers brings a
claim under 18 U.S.C. § 242—a criminal statute. Yet he cannot do so.
See Hernandez v. Hernandez, No. 24-CV-8614, 2026 WL 318291, at *5
(E.D.N.Y. Feb. 5, 2026) (dismissing the plaintiff’s claim under 18 U.S.C.
242, a criminal statute, because private plaintiffs “lack standing to
cause the criminal prosecution of other” because “such [a] right is
reserved to the state.”) (cleaned up). In consequence, this Court
recommends the District “Court dismiss[] [Meyers’s] claims for alleged
violations of federal criminal statutes for failure to state a claim on
which relief may be granted.” Blacknall, v. Rockland County Municipal
Corporation, et al., No. 25-CV-7747, 2026 WL 660701, at *2 (S.D.N.Y.
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Mar. 5, 2026) (dismissing the plaintiff’s claim brought under, among
other statutes, 18 U.S.C. §242).
D. Meyers’s FOIL claim must be dismissed because the
District Courts lacks jurisdiction to hear it.
The Court recommends the District Court deny Meyers’s FOIL
claim. “FOIL allows individuals to request disclosure of records
collected by New York state agencies, subject to certain statutory
exemptions.” Jarvis v. Duell, No. 5:25-CV-843 (LEK/MJK), 2025 WL
3963319, at *3 (N.D.N.Y. Oct. 16, 2025) (cleaned up). If an initial
request is denied, the requester may appeal the denial first to the
“head, chief executive or governing body” of the entity or agency in
possession of the documents. N.Y. Pub. Off. L. § 89(4)(a). If the
requester is again denied, they may appeal that denial by commencing
a special proceeding in New York State courts under Article 78 of the
New York Civil Practice Law and Rules. N.Y. Pub. Off. L. § 89(4)(b).
Here, Meyers alleges that the Jefferson County Sheriff’s Office violated
FOIL. (Complaint Facts, Dkt. 1-1, at pg. 2). But the District Court does
not have jurisdiction to hear that claim. See In re Shelton, No. 06-CV-
6132, 2006 WL 3463425, at *2 (E.D.N.Y. Nov. 30, 2006) (“To the extent
that [the plaintiff] seeks information from state agencies . . ., this Court
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does not have jurisdiction over requests made pursuant to the state
FOIL.”). The Court, therefore, recommends dismissing any claims
arising out of Meyers’s FOIL claim.
E. Meyers should be allowed to amend his Complaint.
Meyers should be allowed to amend his Complaint. Generally,
before courts dismiss a pro se complaint or any part of a Complaint sua
sponte, they should afford the plaintiff the opportunity to amend at
least once. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993). But leave to re-plead may be denied where any amendment
would be futile. See id. Futility is present when the problem with
plaintiff’s causes of action is substantive such that better pleading will
not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(citation omitted). Here, the Court recommends dismissing Meyers’s
federal criminal law, and FOIL claims without prejudice and without
leave to amend because any amendment would be futile. But the Court
also recommends allowing Meyers to amend his Complaint as to the
defamation claim. Meyers may be able to plead facts to prove
defamation and prove that the claim is not time barred.
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IV. CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Meyers’s motion to proceed IFP (Dkt. 2) is
GRANTED; and it is further
RECOMMENDED, that Meyers’s false arrest claim be allowed to
PROCEED; and it is further
RECOMMENDED, that Meyers’s defamation claim be
DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO
AMEND; and it is further
RECOMMENDED, that Meyers’s federal criminal law claim be
DISMISSED WITHOUT PREJUDICE and WITHOUT LEAVE TO
AMEND; and it is further
RECOMMENDED, that Meyers’s FOIL claim be DISMISSED
WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND; and
it is further
RECOMMENDED, that if the District Court adopts this
recommendation, Meyers be given thirty (30) days to amend his
complaint to the extent authorized, and that plaintiff be advised that
any amended pleading must be a COMPLETE PLEADING, WHICH
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WILL SUPERSEDE THE ORIGINAL, and that Meyers must include
all remaining facts and causes of action in the amended complaint. No
facts or claims from the original complaint may be incorporated by
reference, and it is
ORDERED, that the Clerk of the Court serve a copy of this Order
and Report-Recommendation on the pro se Plaintiff.
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
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 DAYS WILL PRECLUDE APPELLATE
REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636 (b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: March 19, 2026
__________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Blacknall v. Rockland County Municipal Corporation, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 660701
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Dainell K.-Shawn BLACKNALL, Plaintiff,
v.
ROCKLAND COUNTY MUNICIPAL CORPORATION, et al., Defendants.
25-CV-7747 (LLS)
|
Signed March 5, 2026
Attorneys and Law Firms
Dainell K.-Shawn Blacknall, New City, NY, Pro Se.
ORDER TO AMEND
LOUIS L. STANTON, United States District Judge:
*1 Plaintiff is currently detained at Rockland County Jail and is proceeding pro se. He brings this action, under 42 U.S.C. §
1983, alleging violations of his rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Fourteenth Amendments
to the United States Constitution. Plaintiff also invokes federal criminal statutes 18 U.S.C. §§ 241, 242, 245, 1503, and 2340, as
well as 42 U.S.C. § 2000, and state law claims for intentional and negligent infliction of emotional distress. By separate order,
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 grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
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).
BACKGROUND
The following allegations are drawn from the complaint. 1 Plaintiff does not specify when or where his claims arose. Plaintiff
makes the following statement of facts, without any further information:
What Happened? Names? Detail. 1st amendement - Deprivation right to redress grievances with my
Groverment. 4 th amendment - right against unreasonable seizure. 5 th amendment - right to remain
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Blacknall v. Rockland County Municipal Corporation, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
sileat. 6th amendment - Right to face your accuser Proof of injury 7th amendment. Right to Jury trail
for controvisy over $20 and excessive fines 14th amendment - Due Proccess of law & Equal Protection
of law.
(ECF 1 at 6.)
Plaintiff brings suit against Rockland County, Sheriff Louis Falco, Court Officer Kelvin Sloven, John Doe Officer from the
Haverstraw Police Department, and John Doe Officer from the Clarkstown Police Department. Plaintiff seeks compensatory
and punitive damages.
DISCUSSION
A. Short and plain statement of claim
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.
*2 Plaintiff does not provide enough information to determine whether the allegations plausibly suggest that Plaintiff is entitled
to relief from the defendants. Specifically, the complaint does not plead facts describing what occurred and what each of the
named defendants did or failed to do that violated his rights. For example, Plaintiff asserts a violation of his Fourth Amendment
right to be free from unreasonable seizure, but he does not allege when and where he was seized, who did so, and the context
suggesting that the seizure was unreasonable. Without concrete facts describing what occurred and when it occurred, Defendants
cannot respond to the complaint. Plaintiff's complaint therefore does not comply with Rule 8 and fails to state a claim on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Prosecuting criminal charges
Plaintiff invokes federal criminal statutes 18 U.S.C. §§ 241, 242, 245, 1503, and 2340, as a basis for his suit against Defendants.
Plaintiff cannot initiate the arrest and prosecution of an individual in federal court because “the decision to prosecute is solely
within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff direct prosecuting
attorneys to initiate a criminal proceeding against any Defendant, because prosecutors possess discretionary authority to bring
criminal actions, and they are “immune from control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts
Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Accordingly, the Court dismisses Plaintiff's claims for alleged violations of federal
criminal statutes for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
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). Because Plaintiff may be able to allege
additional facts to state a valid claim, the Court grants Plaintiff 60 days’ leave to amend his complaint to detail his claims.
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Blacknall v. Rockland County Municipal Corporation, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
First, Plaintiff must name as the defendants in the caption and in the statement of claim those individuals who were allegedly
involved in the deprivation of his federal rights. Second, 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. Any
defendants named in the caption should be discussed in Plaintiff's statement of claim. If Plaintiff has an address for any named
defendant, Plaintiff must provide it. Plaintiff should include:
a) the names and titles of all relevant people;
b) 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;
c) a description of the injuries Plaintiff suffered; and
d) 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 federally protected rights; 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.
LEGAL ASSISTANCE
Plaintiff is advised that a clinic operated by the City Bar Justice Center (CBJC) may be able to assist him in responding to this
court order. Appointments can be scheduled by phone (212-382-4794), email (fedprosdny@nycbar.org), or by completing the
intake form. A flyer with details is attached. 2
CONCLUSION
*3 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-7747 (LLS). An Amended Complaint form
and a flyer from CBJC is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time
allowed, and she cannot show good cause to excuse such failure, Plaintiff's federal claims will be dismissed for failure to state
a claim upon which relief may be granted, and the Court will decline supplemental jurisdiction of his state law claims.
SO ORDERED.
Attachment
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All Citations
Slip Copy, 2026 WL 660701
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Footnotes
1 The Court quotes from the complaint verbatim. All spelling, grammar, and punctuation are as in the original unless
noted otherwise.
2 The CBJC is a private organization that it not part of the court, and the CBJC's SDNY Federal Pro Se Legal Assistance
Project cannot accept filings on behalf of the court.
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2026 WL 318291
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Veronica HERNANDEZ, Plaintiff,
v.
Anthony HERNANDEZ, P.O. E. Amaya, Sgt. Racioppo, Sgt. McHugh, Fame Caucasian Officer Doe, Rodney K.
Harrison, Suffolk County Police Department, Long Island Community Hospital, Dr. Doni Marie Rivas D.O., Female
Asian Nurse Doe, Female Caucasian LICH Employee Doe, Female Caucasian LICH Security Doe, Male African
American Security Doe, Male African American LICH Orderly, Ellen Mullally, Richard T. Margulis, Debra Grimm,
LICH Clinical Leadership, LICH Section 1557 Coordinator, NYU Langone Health System & Hospitals, Defendants.
2:24-cv-8614 (NJC) (ST)
|
Signed February 5, 2026
Attorneys and Law Firms
Veronica Hernandez, Patchogue, NY, Pro Se.
Anne C. Leahey, Suffolk County Department of Law, Hauppauge, NY, for Defendants P.O. E. Amaya, SGT. Racioppo, SGT.
McHugh, Rodney K. Harrison, Suffolk County Police Department.
Robert J. Cecala, Aaronson Rappaport Feinstein & Deutsch, New York, NY, for Defendants Long Island Community Hospital,
Dr. Doni Marie Rivas D.O., Female Asian Nurse Doe, Female Caucasian LICH Employee Doe, Female Caucasian LICJH
Security Doe, Male African American Security Doe, Male African American LICH Orderly, Ellen Mullally, Richard T. Margulis,
Debra Grimm, LICH Clinical Leadership, LICH Section 1557 Coordinator, NYU Langone Halth System & Hospitals.
MEMORANDUM AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
*1 On December 17, 2024, Plaintiff Veronica Hernandez, commenced this action against her husband, Anthony Hernandez,
members of the Suffolk County Police Department (the “Suffolk County Defendants”), and employees of Long Island
Community Hospital (the “NYU Defendants,” and together “Defendants”). (Compl., ECF No. 1.) The Complaint brings the
following claims against Defendants: (1) a claim under 42 U.S.C. § 1983 for violating Ms. Hernandez's rights by failing to
criminally investigate and charge Mr. Hernandez with a crime; (2) claims for disability discrimination and retaliation under the
Americans with Disability Act (“ADA”), 42 U.S.C. § 12101, et seq. and the Rehabilitation Act, 29 U.S.C. § 701 et seq.; and
(3) state law claims for defamation, intentional infliction of emotional distress (“IIED”), and negligent infliction of emotional
distress (“NIED”). (Compl. at 11–27.)
The Suffolk County Defendants moved to dismiss this action on July 7, 2025 (ECF No. 15), and the NYU Defendants moved to
dismiss the action on September 9, 2025 (ECF No. 23). This Court referred both motions to Magistrate Judge Steven Tiscione
on August 15, 2025 and November 13, 2025 respectively. (Elec. Orders, Aug. 15, 2025, Nov. 13, 2025.)
On January 13, 2026, Judge Tiscione issued a Report and Recommendation (the “R&R”) recommending that both the Suffolk
County Defendants’ Motion to Dismiss (ECF No. 15) and the NYU Defendants’ Motion to Dismiss (ECF No. 23) be granted.
(R&R at 20.) The R&R additionally recommends that the Court deny Ms. Hernandez leave to replead or file an amended
complaint, on the ground that any such opportunity to amend would be futile. (Id. at 20.)
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A copy of the R&R was provided to counsel for the Suffolk County Defendants and to counsel for the NYU Defendants via ECF
on January 13, 2026. (See id..) Counsel for the Suffolk County Defendants filed a certificate of service on January 14, 2026, and
counsel for the NYU Defendants filed an affidavit of service on January 15, 2026. (ECF Nos. 30, 31.) Both affirm that counsel
served the R&R on Ms. Hernandez by Certified Mail at Ms. Hernandez's last known address on the dates the certificates of
service were filed. (See id.). The R&R instructed that any objections to the R&R were required to be submitted in writing to
the Clerk of Court within fourteen (14) days of service of the R&R. (R&R at 20.) Accordingly, Ms. Hernandez was required
to file any objections to the R&R by February 2, 2026. See Fed. R. Civ. P. 72(b)(2) (requiring a party to file objections to a
magistrate judge's report and recommendation within 14 days of service); Fed. R. Civ. P. 5(b)(2)(C) (providing that service by
mail “is complete upon mailing”); Fed. R. Civ. P. 6(d) (adding three days for a party to act in response to a document served by
mail); Fed. R. Civ. P. 6(a)(1)(C) (deferring deadlines that fall on a Saturday or Sunday until “the next day that is not a Saturday,
Sunday, or legal holiday”); see also Murphy v. Murphy, No. 20-cv-02388, 2023 WL 2795977, at *1 (E.D.N.Y. Apr. 5, 2023)
(setting out these same rules for calculating the deadline to object to an R&R).
*2 In reviewing a report and recommendation, 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). If no objections are filed, a district court reviews
a report and recommendation for clear error. King v. Paradise Auto Sales I, Inc., No. 15-cv-1188, 2016 WL 4595991, at *1
(E.D.N.Y. Sept. 2, 2016) (citation omitted); Covey v. Simonton, 481 F. Supp. 2d 224, 226 (E.D.N.Y. 2007).
Because no party has timely filed objections to the R&R, I may review the R&R for clear error. King, 2016 WL 4595991, at *1.
Nevertheless, I reviewed the R&R de novo out of an abundance of caution. Having reviewed the motion papers, the applicable
law, and the R&R, I adopt the R&R's thorough and well-reasoned recommendation that the motions to dismiss filed by the
Suffolk County Defendants and the NYU Defendants be granted, and its recommendation that Ms. Hernandez be denied leave
to amend her claims against the Suffolk County Defendants and the NYU Defendants.
Accordingly, the Suffolk County Defendants’ Motion to Dismiss (ECF No. 15) and the NYU Defendants’ Motion to Dismiss
(ECF No. 23) are both granted. The Suffolk County Defendants and the NYU Defendants are therefore terminated from this
action.
The Clerk of the Court is respectfully directed to mail a copy of this Order to Plaintiff at her address of record and to record
such mailing on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–
45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
REPORT AND RECOMMENDATION
TISCIONE, United States Magistrate Judge:
On December 17, 2024, Veronica Hernandez (“Plaintiff”) sued members of the Suffolk County Police Department (“Suffolk
County Defendants”), Long Island Community Hospital (“NYU Defendants”), and Anthony Hernandez alleging defamation,
negligent and intentional infliction of emotional distress, violation of the Americans with Disabilities Act (“ADA”), and
violation of 42 U.S.C. § 1983. The Suffolk County and NYU Defendants move to dismiss. The motions should be GRANTED.
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BACKGROUND 1
I. Parties
Veronica Hernandez (“Plaintiff”) is a self-represented New York resident.
Defendants can be broken into three categories.
First is Anthony Hernandez, a self-represented New York resident who is married to Plaintiff. Anthony Hernandez has been
inactive in the case thus far.
*3 Second are the Suffolk County Defendants. The Suffolk County Defendants are the Suffolk County Police Department
(“SCPD”), SCPD Commissioner Rodney Harrison, Officer Amaya, Sergeant McHugh, and Sergeant Racioppo.
The third category are the NYU Defendants. The NYU Defendants are the Long Island Community Hospital (“LICH”), Dr. Doni
Marie Rivas, Female Asian nurse Doe, Female Caucasian LICH Employee Doe, Female Caucasian LICH Security Doe, Male
African American Security Doe, Male African American LICH Orderly, Ellen Mullally, Richard T. Margulis, Debra Grimm,
LICH Clinical Leadership LICH Section 1557 Coordinator, and NYU Langone Health System & Hospitals.
II. Statement of Facts and Procedural History
On October 29, 2022, Plaintiff called SCPD alleging her husband, Anthony Hernandez, had been poisoning her with Rid-X, a
product used to clean septic tanks. Compl. ¶¶ 1-4, ECF No. 1. 2 The basis of the allegation is that she was suffering from throat
irritation and other symptoms for over a year. Id. ¶ 10. Plaintiff claims she was experiencing “nose bleeds, earaches, thrush,
[her] finger nails were dark and brittle, [her] breath was rancid, [and she had] scarring on [her] palate and throat.” Id. ¶ 19.
Officer Amaya responded to the call and Plaintiff was transported to LICH for evaluation. Id. ¶ 1. When Plaintiff was on route
to the hospital, Anthony Hernandez allegedly informed Officer Amaya that Plaintiff was mentally ill, an allegation Plaintiff
denies. Id. ¶¶ 11-12. Later in the complaint, however, Plaintiff states she was diagnosed with an “emotional disorder.” Id. ¶ 97.
Allegedly, Anthony Hernandez told Officer Amaya that Plaintiff's symptoms were a result of her engaging “in rampant,
unspeakably promiscuous behavior with random men, thereby making [her] mouth and throat accessible and susceptible to
severe and chronic bacterial infection.” Id. ¶ 14. Plaintiff claims that “though Officer Amaya was not an active participant in the
events that unfolded while I was in the care of Long Island Community Hospital,” he conveyed “false, defamatory information
obtained from Anthony ... to the ER staff [which] was the basis for their mistaken beliefs, deprivation of services and all other
constitutional violations.” Id. at pg. 7.
Plaintiff alleges Officer Amaya relayed the information without “fact checking.” Id. ¶ 4. The allegedly false information
provided by Anthony Hernandez is the lynchpin and entire basis of Plaintiff's complaint. Plaintiff claims SCPD and LICH were
dismissive of her claims, treating her as if she suffered from mental illness as opposed to using “domestic violence protocol.”
Id. ¶ 9.
Even still, LICH assessed plaintiff, ran lab tests, and found no support for chemical ingestion or domestic abuse. Id. ¶¶ 11-13.
Plaintiff alleges LICH failed to rule out “alternate causation” for her throat irritation. Id. ¶ 18. Plaintiff claims that upon discharge,
three unknown LICH employees menaced her and attacked her. Id. ¶¶ 27-30. There are no details provided of the alleged
altercation.
*4 Subsequently, Officer Amaya informed Plaintiff there was insufficient proof to pursue formal criminal charges against
Anthony Hernandez. Id. ¶ 26. Nevertheless, on November 11, 2022, Plaintiff visited the Fifth Precinct of the SCPD to file a
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criminal complaint. Id ¶¶ 32-33. Sergeant McHugh informed Plaintiff SCPD would not pursue criminal charges because no
crime had been committed. Id. ¶ 49. Plaintiff requested to speak with a higher-ranking officer. Id. Sergeant Racioppo then spoke
with Plaintiff, received her written complaint, and walked away. Id. ¶ 44. Plaintiff alleges another unidentified female police
officer, who Plaintiff believes handles domestic violence cases, then walked by her and ignored her. Id. ¶ 48. Plaintiff left a
second copy of her complaint with Sergeant McHugh before leaving the station. Id. ¶ 51. Finally, Plaintiff mailed a copy of her
criminal complaint to SCPD and SCPD Commissioner Rodney Harrison. Id. ¶ 51-53.
Later that day, Plaintiff called SCPD to report that Anthony Hernandez was inebriated and confronted her. Id. ¶ 55. Officer
Amaya was dispatched to the scene. Id. ¶ 57. Plaintiff alleges SCPD intentionally delayed response time. Id. ¶¶ 55-58. Further,
Plaintiff claims Officer Amaya was dispatched to purposefully intimidate her – the basis of the allegation is entirely unclear.
Id. ¶ 62. Plaintiff believes this is evidence sufficient to confirm SCPD “had taken [a] position against” her. Id. ¶ 67.
Nearly two years later, in August 2024, Plaintiff called SCPD to report an unknown drunken male sitting in her neighbor's front
yard. Id. ¶ 73. Plaintiff alleges the responding officers did not acknowledge her, and instead spoke with the unknown male,
determined he was not a threat, and left the scene. Id. ¶¶ 78-79. The unknown male then left upon Plaintiff's request without
conformation. Id. ¶¶ 81-85. Plaintiff was upset with the manner SCPD handled the situation, claiming she was discriminated
against. Id. ¶¶ 84-91.
The sum of Plaintiff's allegations is that SCPD and LICH were dismissive of her domestic violence allegations. Plaintiff filed a
complaint on December 17, 2024, alleging defamation, negligent and intentional infliction of emotional distress, discrimination
under the ADA, and civil rights violations under 42 U.S.C. § 1983. Plaintiff also demands criminal charges against various
Defendants. Plaintiff seeks $8 billion in damages, as well as punitive damages, and myriad injunctive relief.
On July 7, 2025, the Suffolk County Defendants moved to dismiss. See ECF No. 15. On September 9, 2025, the NYU
Defendants moved to dismiss. See ECF No. 23. Judge Nusrat Choudhury refereed both motions to this Court for a report and
recommendation.
LEGAL STANDARD
To survive a 12(b)(6) motion, a complaint must contain sufficient facts such that “a claim to relief that is plausible on its face.”
Aschroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the factual allegations allow “the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Determining 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.” Id. at 679, 129 S.Ct. 1937. In doing so, the court must accept the
complaint's well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See Gamm, 944
F.3d at 458. However, allegations that “are no more than conclusions are not entitled to the assumption of truth.” Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010); see Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (“[T]he tenet that a court must accept a
complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory
statements.”); Larsen v. Berlin Bd. of Educ., 588 F.Supp.3d 247, 256 (D. Conn. 2022) (“[A] court need not credit conclusory
or contradictory allegations.”).
*5 “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); Fed R. Civ. P.
12(b)(1). In doing so, the Court constructs all ambiguities and draws all inferences in Plaintiff's favor. However, under 12(b)
(1) challenge, the “plaintiff must prove the existence of subject matter jurisdiction by a preponderance of the evidence.” Moser
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v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002). In making such a determination this Court is “free to consider materials extrinsic
to the complaint.” Id.
These mandates apply to represented parties and pro se litigants alike. Although courts construe pro se pleadings liberally, see
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), a pro se complaint must still “state a claim that is plausible on its
face.” Mancuso v. Hynes, 379 Fed. Appx. 60, 61 (2d Cir. 2010); see also Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009)
(applying Twombly and Iqbal to pro se complaint); King v. New York, 2023 WL 5625440, *3, 2023 U.S. Dist. LEXIS 154734,
*7-8 (E.D.N.Y. Aug. 31, 2023) (noting that a pro se plaintiff is not exempt from compliance with procedural and substantive
law). Plaintiff fails to meet her burden.
DISCUSSION
I. Criminal Statutes
As a preliminary matter, Plaintiff cites several criminal statutes in her complaint: 18 U.S.C. §§ 241, 242, 245, 18 U.S.C. §
1503, and 34 U.S.C. § 30501. A private plaintiff – of course – “lacks standing to cause the criminal prosecution of others,” as
such right is reserved to the state. McCarthy v. Qatar Airways, Q.C.S.C., 2024 WL 1639596, at *3 (S.D.N.Y. Apr. 15, 2024).
Nor can a plaintiff direct prosecutors to initiate a criminal action as such a decision is “immune from control or interference
by citizen or court.” Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). “[T]he decision to
prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87, 102 S.Ct. 69, 70 L.Ed.2d 65
(1981); see Brown v. Alexander, 2024 WL 5141852, at *2 (S.D.N.Y. Dec. 10, 2024) (“Plaintiff seems to seek the federal criminal
prosecution of the defendants. If that is the case, the Court must dismiss those claims for such relief.”). To the extent Plaintiff
seeks relief under criminal statutes or otherwise requests this Court initiate criminal proceedings, those claims are dismissed.
II. Statute of Limitations
Plaintiff brings two untimely intentional tort claims – IIED and defamation. The allegations stem from the October 29, 2022,
incident. Plaintiff filed suit on December 17, 2024 – more than two years later. Defamation and IIED are subject to a one-year
statute of limitations. CPLR 215(3); McKenzie v. Dow Jones & Co., 355 F. App'x 533, 536 (2d Cir. 2009); Rentas v. Ruffin, 816
F.3d 214, 226 (2d Cir. 2016). Accordingly, Plaintiff's IIED and defamation claims are time barred as to all Defendants.
III. Suffolk County Defendants
The Court will now address defenses specific to the Suffolk County Defendants. The sum of Plaintiff's allegations is that Officer
Amaya responded to her 911 call, relayed the information given by Anthony Hernandez to LICH, refused to open a criminal
investigation into Anthony Hernandez, and failed to acknowledge her during a subsequent 911 call. Essentially, Plaintiff is
displeased with SCPD's service. Such is not actionable.
a. Standing
Suffolk County Defendants allege Plaintiff does not have Article III standing to sue SCPD or its officers. This Court agrees.
Standing requires the Plaintiff to plead: (1) injury in fact; (2) traceable causation between Plaintiff's injury and Defendants’
conduct; and (3) the Court's ability to redress the alleged injury. Costin v. Glens Falls Hosp., 103 F.4th 946, 952 (2d Cir. 2024).
Importantly, “[t]he party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiff fails to do so.
*6 An injury in fact must be “concrete and particularized ... not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (citations
and internal quotation marks omitted). Plaintiff's injury, however, is entirely conjectural. The Second Circuit has made clear
that refusal to investigate or charge an individual does not constitute injury. Ostrowski v. Mehltretter, 20 F. App'x 87, 90 (2d
Cir. 2001). Indeed, “the duty to investigate criminal acts (or possible criminal acts) almost always involves a significant level
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of law enforcement discretion.” Harrington v. Cnty. of Suffolk, 607 F.3d 31, 35 (2d Cir. 2010); see also Town of Castle Rock,
Colorado v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). Plaintiff's alleged mistreatment and SCPD's
refusal to charge Anthony Hernandez does not constitute injury in fact – much less to the tune of $8 billion.
Moreover, putting aside the fact Plaintiff's defamation claim is time barred, the alleged reputational harm is too far attenuated.
Plaintiff contends Officer Amaya damaged her reputation by repeating Anthony Hernandez's claim she was mentally ill to
LICH. Plaintiff does not detail how this impacted her reputation. Where courts have recognized reputational injury to confer
standing, the allegations were traceable to realized harm. See, e.g., Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S.
123, 139, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (NGO designated as “Communist” by Attorney General had standing because of
“damage [to] the reputation”); United States v. Accra Pac, Inc., 173 F.3d 630, 633 (7th Cir.1999) (“being put on a blacklist ... is
treated as immediately redressible harm because it diminishes (or eliminates) the opportunity to practice one's profession even
if the list ... does not impose legal obligations.”); Gully v. Nat'l Credit Union Admin. Bd., 341 F.3d 155, 162 (2d Cir. 2003)
(bank manager suffered injury when regulatory board found she engaged in misconduct, releasing prohibition order against
her, “a death knell for [Manager's] career in an industry dependent on security and reliability.”). Plaintiff's complaint here falls
short of tangible harm.
Accordingly, “[w]hile it is certainly possible that reputational injuries could be sufficiently redressable to satisfy this element of
Article III standing ... the stain on [Plaintiff's] reputation is far too speculative to support constitutional standing.” Vengalattore
v. Cornell Univ., 36 F.4th 87, 113 (2d Cir. 2022).
Further, Plaintiff's request to terminate Officer Amaya fails as to redressability. “The taking of disciplinary action against
government employees, including the invocation of the sanction of dismissal, is a matter of executive discretion, and is subject
to judicial supervision only to the extent required to insure substantial compliance with the pertinent statutory procedures[.]”
McTiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir. 1964). Relevant here, “[t]he Civil Service Law and Unconsolidated Laws §
891 govern and establish comprehensive procedures for police discipline in New York State.” Rochester Police Locust Club,
Inc. v. City of Rochester, 71 Misc. 3d 438, 447, (N.Y. Sup. Ct. 2020). Thus, termination of Officer Amaya falls outside of this
Court's purview.
Plaintiff does not establish Article III standing to sue SCPD. Proceeding with the utmost liberality considering Plaintiff's pro
se status, this Court will address facial plausibility of the remaining claims.
b. 42 U.S.C. § 1983
42 U.S.C. § 1983 does not create a positive right but provides a vehicle to defend federal rights granted elsewhere and mend
constitutional injuries. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). “To state a claim under § 1983, a
plaintiff must allege two elements: (1) the violation of a right secured by the Constitution and laws of the United States, and
(2) the alleged deprivation was committed by a person acting under color of state law.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (citation and quotation marks omitted). Plaintiff's alleged constitutional violation is
that SCPD failed to investigate and charge Anthony Hernandez and discriminated against her due to her disability. Neither
allegation is actionable.
*7 As stated supra, refusal to investigate or prosecute an alleged crime is not a constitutional injury. See Harrington, 607
F.3d 31; Ostrowski, 20 F. App'x at 90. Likewise, disability discrimination is not a constitutional injury. To be sure, “freedom
from discrimination on the basis of disability is a right secured by statute ..., not by the Constitution.” Fierro v NY City Dept. of
Educ., 994 F. Supp. 2d 581, 590 (SDNY 2014) (citations and quotation marks omitted); see also Bd. of Trs. of Univ. of Alabama
v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (“If special accommodations for the disabled are to be
required, they have to come from positive law and not through the Equal Protection Clause.”).
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i. Individual Capacity
To the extent Plaintiff seeks to hold the Defendants liable in their individual capacities, there is insufficient personal involvement
to sustain a facially plausible cause of action. “[I]n 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). When a plaintiff sues a government official in their individual capacity
“personal involvement of [the] defendants [ ] alleged constitutional deprivations is a prerequisite ... under § 1983.” McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir. 1977). A defendant must be “sufficiently involved in the alleged denial” of constitutional
rights. Id. Generally, a defendant must have “directly participated in the infraction.” Williams v. Smith, 781 F.2d 319, 323 (2d
Cir. 1986). Here, however, Plaintiff fails to allege any SCPD parties were actively involved in her alleged constitutional injury.
For example, Plaintiff names Commissioner Harris even though he had zero involvement in Plaintiff's alleged injury. Thus,
Plaintiff seeks to hold Commissioner Harris liable under a respondeat superior theory. However, Ҥ 1983 does not authorize
respondeat-superior liability.” Alwan v. City of New York, 311 F. Supp. 3d 570, 587 (E.D.N.Y. 2018). To be sure, “an allegation
that defendant is in a high position of authority ... is, in and of itself, insufficient to impose liability absent proof of personal
involvement in the constitutional deprivation.” Wallace v. Conroy, 945 F. Supp. 628, 637–38 (S.D.N.Y. 1996). Further, Plaintiff
alleges Officer Amaya did not adequately investigate her domestic violence complaints. As stated, such is not actionable.
Moreover, Plaintiff readily admits “Officer Amaya was not an active participant in the events that unfolded[.]” Compl. at pg.
7. Plaintiff's § 1983 claims fail as a matter of law.
c. Disability Discrimination
Plaintiff brings disability discrimination claims against SCPD under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101, et seq. and the Rehabilitation Act, 29 U.S.C. § 701 et seq. Plaintiff claims she has a “condition called Mydriasis which
causes [her] pupils to be fixed and dilated” and an unnamed “emotional disorder.” Compl. ¶¶ 93, 97. Plaintiff contends SCPD
discriminated against her based on her disabilities by denying “her services that would have been routinely provided absent my
disability and/or perceived impairment disability.” Id. ¶ 100. What services Plaintiff was denied is entirely unclear.
To state an ADA or Rehabilitation Act claim, Plaintiff must allege “(1) that [s]he is a ‘qualified individual’ with a disability; (2)
that [s]he was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated
against by a public entity; and (3) that such exclusion or discrimination was due to [her] disability.” Hargrave v. Vermont, 340
F.3d 27, 34–35 (2d Cir. 2003); see also Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (holding ADA and Rehabilitation act
elements are the same). Plaintiff fails on all three prongs.
*8 Plaintiff fails to state she is a qualified individual under the statute. “The ADA's definition of disability may be satisfied if a
plaintiff demonstrates a record of an impairment that substantially limits one or more major life activities.” Levine v. Smithtown
Cent. Sch. Dist., 565 F. Supp. 2d 407, 425 (E.D.N.Y. 2008) (internal quotation marks and citation omitted); Kelly v NY State
Off. of Mental Health, 200 F Supp 3d 378, 394 (EDNY 2016) (“To show a record of impairment, a plaintiff must establish that
she has a history of an impairment that substantially limited one or more major life activities when compared to most people
in the general population, or was misclassified as having had such an impairment.”). Here, Plaintiff merely claims she has a
condition causing her pupils to dilate and an emotional disorder. Plaintiff does not suggest how her life is limited or impaired
in any way. Accordingly, such “failure to plausibly allege a substantial limitation to a major life ... precludes her from asserting
that she has a record of disability.” Id.
Next, Plaintiff fails to allege how SCPD discriminated against her. A plaintiff may bring an ADA claim alleging disparate
treatment, disparate impact, or failure to provide a reasonable accommodation. Tardif v. City of New York, 991 F.3d 394, 404
(2d Cir. 2021). Plaintiff claims SCPD mistook her Mydriasis with a mental illness and disregarded her allegations. Compl. ¶ 96.
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This Court is left wondering how SCPD could have treated Plaintiff any differently. SCPD responded to Plaintiff's 911 call,
communicated with Plaintiff, reviewed her criminal allegations, and informed her there was insufficient evidence to charge
Anthony Hernandez. Indeed, SCPD relied on LICH's lab results that no evidence of chemical ingestion was present. Id. ¶ 11.
The only alternative would be for SCPD to formally charge Anthony Hernandez and as belabored at this point, Plaintiff is not
entitled to direct such prosecution. Moreover, mere conclusory statements regarding disparate treatment cannot sustain an ADA
or Rehabilitation Act claim. To be sure, “threadbare recitals of the elements of a cause of action supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
Further, Plaintiff fails to allege SCPD did not offer a reasonable accommodation. Indeed, it appears that Plaintiff was able
to contact and communicate with SCPD throughout this saga. The record does not demonstrate Plaintiff 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 the plaintiff's disability.” Askins v. City of New York: Police Dep't, No. 1:22-CV-9277
(LTS), 2022 WL 17539171, at *5 (S.D.N.Y. Dec. 5, 2022). 3 At bottom, Plaintiff's discrimination claims fail.
d. Tort Claims
Although Plaintiff's intentional tort claims are time barred, she also failed to satisfy mandatory notice requirements. County
Law § 52 (1) provides that every tort claim against a county must be “served in compliance with section fifty-e of the general
municipal law.” Pursuant to General Municipal Law § 50-e (1)(a), the notice of claim must be served “within ninety days
after the claim arises” as “a condition precedent to the commencement of an action or special proceeding against a public
corporation, ... or any officer, appointee or employee thereof.”
“Notice of claim requirements are construed strictly by New York state courts.” Hardy v NY City Health & Hosps. Corp., 164
F.3d 789, 793 (2d Cir. 1999) (citation and quotation marks omitted). New York law mandates the complaint plead “(1) the
plaintiff has served the notice of claim; (2) at least thirty days have elapsed since the notice was filed (and before the complaint
was filed); and (3) in that time the defendant has neglected to or refused to adjust or to satisfy the claim.” Hardy v NY City Health
& Hosps. Corp., 164 F.3d 789, 793 (2d Cir 1999). “Failure to comply with these requirements ordinarily requires a dismissal
for failure to state a cause of action.” Id. at 794. No such notice of claim was satisfied, let alone plead, here. Such is fatal.
*9 Even assuming arguendo Plaintiff did satisfy the notice requirements, the IIED and NIED allegations fail as a matter of law.
To reiterate, Plaintiff alleges SCPD was dismissive to her and did not investigate Anthony Hernandez to the extent she desired.
IIED requires the Plaintiff to plead “ ‘(1) extreme and outrageous conduct’ with the ‘(2) intent to cause severe emotional
distress,’ that there was ‘(3) a causal connection between the conduct and the injury,’ and that ‘(4) severe emotional distress’
resulted.” Rentas v. Ruffin, 816 F.3d 214, 227 (2d Cir. 2016) (citing Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996)).
However, liability attaches only where the conduct is “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].” Id. at 790–91
(alteration in original). Being dismissive or otherwise rude to Plaintiff falls well short of this high bar.
Further, “ ‘public policy bars claims for intentional infliction of emotional distress against a governmental entity.’ ” Calicchio
v. Sachem Cent. Sch. Dist., 185 F. Supp. 3d 303, 314 (E.D.N.Y. 2016) (citing Burbar v. Incorporated Village of Garden City,
961 F.Supp.2d 462, 474 (E.D.N.Y.2013)); accord Frederique v. County of Nassau, 168 F.Supp.3d 455, 2016 WL 1057008, *17
(E.D.N.Y. Mar. 11, 2016); Shahzad v. County of Nassau, 2013 WL 6061650, *8 (E.D.N.Y. Nov. 14, 2013).
As to NIED, a plaintiff must plead “(1) breach of a duty owed to plaintiff, which breach either unreasonably endangered
plaintiff's physical safety or caused plaintiff to fear for his physical safety; (2) extreme and outrageous conduct; (3) a causal
connection between the conduct and the injury; and (4) severe emotional distress.” Shearon v. Comfort Tech Mech. Co., 936
F. Supp. 2d 143, 156 (E.D.N.Y. 2013). However, “a 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.”
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Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); accord Fiedler v. Incandela, 222 F. Supp. 3d 141, 167 (E.D.N.Y. 2016).
Accordingly, Plaintiff's NIED claim fails.
In sum, Plaintiff's claims against the Suffolk County Defendants fail on numerous grounds. Accordingly, the Suffolk County
Defendants’ motion to dismiss should be granted in its entirety.
IV. NYU Hospital Defendants
This Court will now turn to defenses specific to the NYU Defendants.
a. Service of Process
NYU Defendants allege Plaintiff failed to effectuate adequate service of process. This Court agrees. To reiterate, NYU
Defendants are a combination of natural persons and corporate entities. Plaintiff served all NYU Defendants via certified mail.
See Proof of Delivery, ECF No. 11. However, “[n]either the Federal Rules nor New York's CPLR permit service of a summons
and complaint by simply mailing a copy to a defendant via the U.S. Postal Service or an express delivery service.” Fairman
v. Hurley, 373 F. Supp. 2d 227, 232 (W.D.N.Y. 2005).
Service of process must be effectuated in the manner proscribed by Rule 4(e): (1) serving a copy of the summons and complaint
to the defendant personally; (2) leaving a copy of the summons and complaint at the defendant's usually place of abode with
an individual of suitable age and discretion; or (3) delivering a copy of the summons and complaint to an authorized agent or
recipient. Fed. R. Civ. P. 4.
*10 Service of process may also be effectuated through pertinent state law. Relevant here, CPLR § 312-a states, in relevant part:
a summons and complaint, or summons and notice, or notice of petition and petition may be served by
the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage
prepaid, a copy of the summons and complaint, or summons and notice or notice of petition and petition,
together with two copies of a statement of service by mail and acknowledgement of receipt in the form set
forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.
N.Y. C.P.L.R. 312-a. Thus, under New York's CPLR service by mail “is not effective unless the defendant signs and returns an
acknowledgment of receipt.” Fairman, 373 F. Supp. 2d at 232 (citation and quotation marks omitted); see also Shenko Elec., Inc.
v. Hartnett, 161 A.D.2d 1212, 1213, 558 N.Y.S.2d 859 (1990) (“Service [by mail] is complete only when the acknowledgment
of receipt in the form prescribed by CPLR 312–a(d) is mailed or returned to the sender.”); Uzamere v. Uzamere, 28 Misc.3d
1207A, 957 N.Y.S.2d 639 (Sup. Ct. 2010), aff'd, 89 A.D.3d 1013, 933 N.Y.S.2d 336, (2011) (“Serving defendants by certified
mail only does not comply with the requirements of CPLR § 308[.]”).
Plaintiff presents no evidence of CPLR compliance, i.e., “that copies of the summons and complaint were sent to the defendants,
by first-class mail, together with, inter alia, two copies of a statement of service by mail and acknowledgment of receipt, and
that the signed acknowledgment of receipts were mailed or delivered to the plaintiff.” Klein v. Educ. Loan Servicing, LLC, 71
A.D.3d 957, 958, 897 N.Y.S.2d 220 (2010). Notably, “when a defendant moves to dismiss under Rule 12(b)(5), the plaintiff
bears the burden of proving adequate service.” Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010) (citation and quotation
marks omitted). Plaintiff has failed to do so here.
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It is axiomatic that improper service obviates a court of their jurisdiction. “In the absence of service of process (or waiver of
service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant.” Murphy
Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999); see also Licci ex rel. Licci
v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir.) (“[T]he plaintiff's service of process upon the defendant must have
been procedurally proper” to confer jurisdiction.).
Plaintiff may assert that such caviling over service is an academic endeavor due to Defendants’ having received notice of this
litigation and their active statues in the case. Not so. “Actual notice alone will not sustain the service or subject a person to
the court's jurisdiction when there has not been compliance with prescribed conditions of service.” Buggs v. Ehrnschwender,
968 F.2d 1544, 1548 (2d Cir. 1992) (citation and quotation marks omitted); Morrison v. New York State Div. for Youth Child.
& Fam. Ser., No. 98-CV-643, 2000 WL 532762, at *3 (N.D.N.Y. Apr. 25, 2000) (“Notice of suit received by means other
than those authorized by statute or rule cannot serve to bring a defendant within the jurisdiction of the court.”). Accordingly,
Plaintiff's failure to effectuate adequate service of process prevents this Court from exercising personal jurisdiction over the
NYU Defendants. Nevertheless, out of an abundance of caution this Court will address NYU Defendants’ remaining defenses.
b. 42 U.S.C. § 1983
*11 As stated supra, a § 1983 claim must demonstrate: (1) the deprivation of a Constitutional rights (2) “by a person acting
under the color of state law.” 42 U.S.C. § 1983 (emphasis added). Plaintiff makes a sparse assertion the NYU Defendants are
liable under § 1983. Putting aside the fact that Plaintiff fails to assert a constitutional injury, 4 § 1983 is inapplicable because
NYU Defendants are neither state actors, nor are they acting under the color of state law.
“The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power
possessed by virtue of state law made possible only because the wrongdoer is clothed with the authority of state law.” Emanuele
v. Town of Greenville, 143 F. Supp. 2d 325, 331 (S.D.N.Y. 2001). The NYU Defendants are private natural persons and privately
owned entities – not state actors. Importantly, “private actors and institutions, such as the hospitals ... named as defendants in
[Plaintiff's] original complaint, are generally not proper § 1983 defendants because they do not act under color of state law.”
White v. St. Joseph's Hosp., 369 F. App'x 225, 226 (2d Cir. 2010).
There are rare instances where private actors can be liable under § 1983, however, there must be “a sufficiently close nexus
between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that
of the State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). No such nexus
exists here.
Further, to the extent Plaintiff alleges NYU Defendants are licensed or funded by the state, the argument fails. “[T]he presence
of state funding or regulation, in the absence of some concerted action with state officials, does not transform a private party's
actions into state action.” White, 369 F. App'x at 226; accord Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534
(1982). Mere funding or licensure is a far cry from those rare instances where private medical providers acted under the color
of state law. For example, in West v. Atkins, the Supreme Court held that a physician who was under contract with a state-owned
prison hospital to provide medical services to inmates acted under the color of state law. 487 U.S. 42, 108 S.Ct. 2250, 101
L.Ed.2d 40 (1988). Such is not the case here.
c. Tort Claims
As stated supra, Plaintiff's intentional tort claims are time barred. See CPLR 215(3); McKenzie, 355 F. App'x at 536; Rentas,
816 F.3d at 226. The claims are also facially deficient.
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To reiterate, IIED liability attaches only where conduct is “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].” Bender, 78 F.3d
at 790–91 (alteration in original). Similarly, NIED requires the plaintiff to allege “extreme and outrageous conduct.” Shearon,
936 F. Supp. 2d at 156, “of such intensity and duration that no reasonable person should be expected to endure it.” Brewton v.
City of New York, 550 F. Supp. 2d 355, 369 (E.D.N.Y. 2008).
In reviewing Plaintiff's complaint, this Court cannot find an allegation resembling extreme and outrageous conduct on behalf of
NYU Defendants. Hospital staff treated Plaintiff and determined she was neither poisoned, nor demonstrated signs of domestic
violence, thereafter, discharging her. Plaintiff makes an illusory allegation that several employees acted menacingly toward
her upon discharge. In sum, NYU Defendants charted a course of treatment that did not align with Plaintiff's belief. While
this Court in no way undermines domestic abuse, the NYU Defendants’ conduct falls short of the high standard articulated in
Bender and Shearon.
*12 Accordingly, NYU Defendants motion to dismiss should be granted.
V. Leave to Replead
As a final point, Plaintiff should not be granted leave to replead. Generally, leave to replead should be given to pro se litigants
if “the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
Such is not the case here, where, accepting all allegations as true, Plaintiff's legal theory is without merit. “The problem with
[Plaintiff's] causes of action is substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile request
to replead should be denied.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
CONCLUSION
This Court respectfully recommends the District GRANT both motions to dismiss. Plaintiff should not be given leave to replead.
OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14)
days from service of this Report and Recommendation to file written objections. Failure to file timely objections shall constitute
a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Marcella
v. Cap. Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002); Small v. Sec'y of Health & Human Servs., 892 F.2d
15, 16 (2d Cir. 1989); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
SO ORDERED.
All Citations
Slip Copy, 2026 WL 318291
Footnotes
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1 The Court takes the factual allegations from the Complaint and assumes that they are true for purposes of this Motion.
See Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 458 (2d Cir. 2019).
2 The complaint does not include page numbers, so any page numbers referenced are ECF provided numbers in the
top ribbon. Paragraph numbers begin on page 11 and restart at page 28 under the heading “RELIEF SOUGHT”. Any
paragraph numbers referenced are to the body of the complaint, paragraphs 1-187, prior to the “RELEIF SOUGHT”
heading.
3 To the extent Plaintiff seeks liability against any individual Defendants, such is not available under the ADA or
Rehabilitation Act. Yerdon v. Poitras, 120 F.4th 1150, 1155 (2d Cir 2024); Iwelu v. NY State Off. of Mental Health, 2024
WL 2175938, 2024 U.S. App. LEXIS 11742 (2d Cir May 15, 2024); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir 2010).
4 This alone is grounds for dismissal. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d
806 (1986); Higgins v. City of Johnstown, N.Y., 20 F. Supp. 2d 422, 427 (N.D.N.Y. 1998).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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In re Shelton, Not Reported in F.Supp.2d (2006)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2006 WL 3463425
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court,
E.D. New York.
In re Thomas SHELTON.
No. 06-CV-6132 CBA.
|
Nov. 30, 2006.
Attorneys and Law Firms
Thomas Shelton, Cape Vincent, NY, pro se.
ORDER
AMON, United States District Judge:
*1 On November 8, 2006, Thomas Shelton, who is is incarcerated at Cape Vincent Correctional Facility, filed a document
with the Court styled as a “Freedom of Information Request.” This Court may not act on Mr. Shelton's request for information
as stated. However, in an abundance of caution, the Clerk of Court has been directed to assign a docket number to this case,
solely for the purpose of this Order. In order to proceed with this action in federal court, Mr. Shelton must file a complaint
and either pay the filing fee or submit a request to proceed in forma pauperis and a Prisoner Authorization form within thirty
(30) days of the date of this Order.
Mr. Shelton's Submission
The document received by the Court consists of a three-page handwritten request “made pursuant to Title 5 U.S.C.A. Subsection
522 and the Sarbanes Oxley Act of 2002” and addressed to the U.S. District Court Eastern District of NY. Mr. Shelton requests
“ ‘All’ civil and/or criminal active and/or inactive existing records and/or files social security account/I.R.S. account number #
XXX-XX-XXXX and original case number # 02922-2003 STAT of New York County Queens v. Thomas Shelton” and other
materials. Mr. Shelton additionally asks that “If you/your office do not have these document mentioned above, please foward
this FOIL to the correct department so I my recive these documents.” [sic ].
DISCUSSION
Standard of Review
In reviewing Mr. Shelton's request, the Court is mindful that because he is proceeding pro se, his submissions should be held “to
less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d
163 (1980). Furthermore, his pleadings must be read liberally and interpreted as raising the strongest arguments they suggest.
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). If a liberal reading
of the complaint “gives any indication that a valid claim might be stated,” this Court must grant leave to amend the complaint.
See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999).
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In re Shelton, Not Reported in F.Supp.2d (2006)
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However, “[i]t is axiomatic that federal courts are courts of limited jurisdiction and may not decide cases over which they lack
subject matter jurisdiction. Unlike failure of personal jurisdiction, failure of subject matter jurisdiction is not waivable and may
be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be dismissed.”
Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir.2000) (citing Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); United Food & Commercial Workers Union, Local 919 v.
CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994)). Federal subject matter jurisdiction is available only
when a “federal question” is presented, or when plaintiff and defendant are of diverse citizenship and the amount in controversy
exceeds $75,000. To invoke federal question jurisdiction, the plaintiff's claim(s) must arise “under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
The FOIL/FOIA Request
*2 Mr. Shelton cites to both state and federal laws providing access to government records. The New York Freedom of
Information Law, Public Officers Law § 84 et seq. (“FOIL”) allows individuals to request disclosure of records collected by
New York state agencies, subject to certain statutory exemptions. If the initial request is denied, the requester may appeal
the denial first to the “head, chief executive or governing body” of the entity or agency in possession of the documents, and,
thereafter, by commencing a special proceeding in New York State courts under Article 78 of the New York Civil Practice Law
and Rules. N.Y. Pub. Off. L. § 89(4)(a) and (b). Federal courts do not have jurisdiction to enforce state laws granting public
access to official records.
The federal Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”) created a judicially enforceable public right of access
to information collected by executive branch agencies, subject to specified limitations. FOIA requests must be made to the
specific agency, may be administratively appealed to the head of the agency, and ultimately are appealable to federal courts. 5
U.S.C. § 552(a)(4)(B). However, federal court jurisdiction “is dependent upon a showing that an agency has (1) ‘improperly;’ (2)
‘withheld;’ (3) ‘agency records,” ’ Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct.
960, 63 L.Ed.2d 267 (1980), and the requester must first exhaust his administrative remedies, Ruotolo v. Department of Justice,
53 F.3d 4, 8 (2d Cir.1995).
To the extent that Mr. Shelton seeks information from state agencies, such as the Queens County Court, this Court does not
have jurisdiction over requests made pursuant to the state FOIL. The federal FOIA applies only to federal agencies, and not to
state agencies. See e.g. Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 484 (2d Cir.1999). To the extent that Mr. Shelton
seeks information from federal agencies such as the IRS, he has not indicated that he has filed a FOIA request, that such request
was initially denied, nor that he has exhausted his administrative remedies.
Although this Court can discern no federal question that would give this Court jurisdiction over Mr. Shelton's request, the Court
is mindful of Mr. Shelton's pro se status. Accordingly, the Court grants leave to file a complaint. Rule 8 of the Federal Rules
of Civil Procedure provides that, in order to state a claim for relief, a complaint must contain “(1) a short and plain statement
of the grounds upon which the court's jurisdiction depends ..., (2) a short and plain statement of the claim showing that the
pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.” Fed.R.Civ.P. 8(a). Moreover, in
order to bring a complaint in federal court, Mr. Shelton must either pay the filing fee or seek leave of the Court to proceed
in forma pauperis. Under 28 U.S.C. § 1914, the filing fee to commence a civil action is $350. Under 28 U.S.C. § 1915, the
Court may waive the filing fee upon finding a plaintiff indigent. However, the Prison Litigation Reform Act (“PLRA”) requires
prisoners to pay the full filing fee from their prison accounts as funds become available. For Mr. Shelton's convenience, the
Court has attached the forms for application to proceed in forma pauperis and the Prisoner Authorization for disbursement of
funds pursuant to the PLRA.
CONCLUSION
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In re Shelton, Not Reported in F.Supp.2d (2006)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
*3 Mr. Shelton shall have thirty (30) days from the date of this Order to file a complaint that complies with Rule 8. The
Complaint must be accompanied by the filing fee or by the application to proceed without prepayment of fees and the Prisoner
Authorization to disburse funds from the prison trust fund account. No summons shall issue at this time and all further
proceedings shall be stayed for thirty (30) days. 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. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2006 WL 3463425
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Jarvis v. Duell, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 3963319
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Holly JARVIS, Plaintiff,
v.
Jason DUELL, et al., Defendants.
5:25-CV-843 (LEK/MJK)
|
Signed October 16, 2025
Attorneys and Law Firms
Holly Jarvis, Plaintiff pro se
REPORT-RECOMMENDATION
Mitchell J. Katz, United States Magistrate Judge
*1 To the Honorable Lawrence E. Kahn, Senior U.S. District Judge:
On June 27, 2025, Jarvis began this action by filing a Complaint and moving for leave to proceed in forma pauperis (“IFP”)
(Dkts. 1, 2). The Clerk then sent Jarvis’ Complaint and IFP application to this Court for review. (Dkts. 1, 2). This Court granted
Jarvis’ IFP application, reviewed Jarvis’ Complaint, and recommended the District Court dismiss all claims without prejudice
and with leave to amend. (Dkt. 8). Over Jarvis’ objections, the District Court adopted the Report-Recommendation in its entirety.
(Dkt. 12). Jarvis has now filed an Amended Complaint. (Dkt. 10). This Court reviews the Amended Complaint under 28 U.S.C.
§ 1915, and for the reasons below, the Court again recommends dismissing all Jarvis’ claims without prejudice and with leave
to amend.
I. BACKGROUND
On November 25, 2023, Jarvis and her son attended Funny Bone Comedy Club, in Syracuse, New York. (Amended Complaint,
Dkt. 10, pg. 3, at ¶7). 1 Some event occurred at Funny Bone which required mall security involvement. (Id. at ¶8). There, off-
duty probation officers Jason Duell and Phil Philbrick “intervened in [the] event[ ]” (Id.) (cleaned up). Duell and Philbrick then
followed Jarvis “and her son in a menacing manner, confronted them without cause and escalated the situation.” (Id. at ¶9). At
some point during this altercation, someone placed Jarvis inside the back seat of a police vehicle. (Id., pgs. 4-5, at ¶18). Jarvis
alleges that she “was physically injured as a result of this encounter” and then she “was transported to the hospital, and had
x-rays taken.” (Id., pg. 3, at ¶10). Although she “suffered pain for several months,” Jarvis did not plead the x-ray results and
“did not continue medical treatment.” (Id.) (cleaned up).
Jarvis also alleges that Defendants “failed to preserve and/or ensure preservation of video footage of the incident despite knowing
its relevance to anticipated litigation.” (Id., pg. 4, at ¶12). One month after the incident, Jarvis submitted a FOIL request, and
“Defendants and associated agencies refused to provide the footage.” (Id. at ¶13). Jarvis has never received the video. See (Id.,
pg. 5, at ¶19).
Jarvis now sues Defendants Duell and Philbrick, under 42 U.S.C. § 1983, alleging violations of her First and Fourth Amendment
rights. (Id., pgs. 5-6). Jarvis also alleges a “denial of access to Courts and Spoliation” claim. 2
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II. STANDARD OF REVIEW
On their own, courts can dismiss a case—at any time—if they determine that an action is (1) frivolous or malicious; (2) fails
to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must consider whether the complaint lacks an arguable basis in law
or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (cleaned up); 28 U.S.C. § 1915. 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. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974).
*2 Courts must show liberality toward pro se litigants and use extreme caution when sua sponte dismissing pro se complaints.
See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). Still, courts have a responsibility to
determine that a claim is not frivolous before permitting a plaintiff to proceed. See id.
III. DISCUSSION
A. The District Court should dismiss Jarvis’ Amended Complaint because Jarvis has not established that the
Northern District of New York has subject matter jurisdiction over her claim.
The Court recommends dismissing Jarvis’ Amended Complaint. For a Court to have subject matter jurisdiction over a § 1983
claim, plaintiffs must plausibly allege that the defendants were acting under the color of law. Here, Jarvis has not plausibly
alleged that the off-duty defendants were acting under the color of law. So the District Court may not have subject matter
jurisdiction. As a result, this Court should dismiss Jarvis’ Complaint without prejudice and with leave to amend.
For purposes of 42 U.S.C. § 1983, acting under color of law means that the law-enforcement-officer defendant must “have
exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority
of state law.” West v. Atkins, 487 U.S. 42, 49 (1988) (cleaned up). Thus, “it is axiomatic that private citizens and entities are not
generally subject to § 1983 liability.” Moroughan v. Cnty. of Suffolk, 514 F. Supp. 3d 479, 512 (E.D.N.Y. 2021) (cleaned up).
But § 1983 liability can attach if an off-duty law enforcement officer acts under the color of law. See, e.g., Claudio v. Sawyer,
675 F. Supp. 2d 403, 409 (S.D.N.Y. 2009) (“An off-duty police officer effectuating a traffic stop is also considered to be acting
under the color of law.”). When determining if § 1983 liability attaches, “courts look to the nature of the officer's act” not their
position. Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994) (cleaned up). When examining an officer's actions, courts consider
seven non-exhaustive factors. See Mosca v. City of New York, No. 17-CV-4327, 2018 WL 3151704, at *4 (E.D.N.Y. Apr. 24,
2018) (cleaned up). Courts analyze whether the off-duty officer: “(1) identified” themselves “as an officer of the law; (2) was
in uniform; (3) was authorized to make an arrest at the time; (4) was carrying handcuffs; (5) was carrying any weapons; (6)
flashed a police badge; and (7) placed the plaintiff under arrest or otherwise detained her.” Id. (cleaned up).
Applying these factors, it is unclear whether this Court has jurisdiction to hear Jarvis’ case. For starters, Jarvis does not allege
that Defendants identified themselves as law enforcement officers, were in uniform carrying handcuffs and firearms, were
authorized to arrest Jarvis and her son, and arrested Jarvis and her son. See generally, (Amended Complaint, Dkt. 10). Without
pleading these facts, this Court cannot determine whether § 1983 liability attaches. And if this there is no § 1983 liability, then
the District Court cannot hear this case. See Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 348 (N.D.N.Y. 2014) (Baxter, M.J.)
(“The requirement that the defendant act under ‘color of state law’ is jurisdictional”). In consequence, the Court recommends
dismissing Jarvis’ Complaint—in its entirety—without prejudice and with leave to amend.
*3 But even if the District Court were to find that it has jurisdiction because Defendants were acting under the color of law,
Jarvis’ “denial of access to courts and spoliation” claim must be dismissed. To plausibly allege a § 1983 violation, Jarvis 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) (cleaned up). Jarvis’ Complaint fails to do so. Jarvis does not come within earshot of alleging that
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Defendants worked for Funny Bone Comedy Club, had access to the camera, or destroyed (or failed to preserve or were under
any obligation to preserve) the video evidence she seeks. See generally (Amended Complaint, Dkt. 10). Even construing the
Amended Complaint as liberally as possible, this Court cannot see how the Defendants are personally involved in the video
evidence debacle. In sum, the Court recommends dismissing Jarvis’ FOIL claim without prejudice and without leave to amend.
As an alternative ground to deny this claim, this Court reminds the District Court that it does not have jurisdiction over this
issue. Jarvis’ claim emanates from her alleged inability to obtain information under FOIL. FOIL allows individuals to request
disclosure of records collected by New York state agencies, subject to certain statutory exemptions. If an initial request is denied,
the requester may appeal the denial first to the “head, chief executive or governing body” of the entity or agency in possession
of the documents. N.Y. Pub. Off. L. § 89(4)(a) If the requester is again denied, they may appeal that denial by commencing a
special proceeding in New York State courts under Article 78 of the New York Civil Practice Law and Rules. N.Y. Pub. Off. L. §
89(4)(b). Federal courts do not have subject matter jurisdiction to enforce state laws regarding public access to official records.
See In re Shelton, No. 06-CV-6132, 2006 WL 3463425, at *2 (E.D.N.Y. Nov. 30, 2006) (“To the extent that [the plaintiff] seeks
information from state agencies ..., this Court does not have jurisdiction over requests made pursuant to the state FOIL.”). The
Court therefore recommends dismissing any claims arising out of Jarvis’ FOIL request.
* * *
To recap, Jarvis has not established that this Court has subject matter jurisdiction over this case. Likewise, Jarvis has not
established that the District Court has subject matter jurisdiction over her FOIL claim. And to make matters worse, Jarvis has
not pleaded that Defendants are personally involved in the FOIL claim. All in all, the District Court should dismiss Jarvis’
Complaint without prejudice and with leave to amend. If it decides not to do so, it should still dismiss Jarvis’ FOIL claim without
prejudice and without leave to amend because the Court does not have subject matter jurisdiction over that claim.
B. The District Court should dismiss Jarvis’ Excessive Force claim because nothing in her Amended Complaint
establishes that Defendants used force.
The Court recommends dismissing Jarvis’ Excessive Force claim without prejudice and with leave to amend. 3 To plausibly
allege a Fourth Amendment Excessive Force claim, plaintiffs must show that the defendant officer's use of force was objectively
unreasonable under the circumstances. Here, Jarvis only conclusory states that she was injured because of the altercation.
Without more, the Amended Complaint does not plausibly allege an Excessive Force claim. In consequence, the District Court
should dismiss Jarvis’ Excessive Force claim.
“The Fourth Amendment prohibits the use of Excessive Force in making an arrest.” Brown v. City of New York, 798 F.3d 94, 100
(2d Cir. 2015). To plausibly allege a Fourth Amendment Excessive Force claim, plaintiffs must allege that the “police officer's
use of force” was “objectively unreasonable in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Kayo v. Mertz, 531 F. Supp. 3d 774, 796 (S.D.N.Y. 2021) (cleaned up). Courts examine several
factors when analyzing Excessive Force claims. Id. These factors include: (1) “the need for the application of force,” (2) “the
relationship between the need and the amount of force that was used, the extent of injury inflicted, and” (3) “whether force was
applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing
harm.” Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016). Courts also examine “(4) the nature and severity of the crime leading
to the arrest, (5) whether the suspect posed an immediate threat to the safety of the officer or others, and (6) whether the suspect
was actively resisting arrest or attempting to evade arrest by flight.” Linton v. Zorn, 135 F.4th 19, 31 (2d Cir. 2025) (cleaned
up). Importantly, “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 v. Connor, 490 U.S. 386, 396 (1989) (cleaned up).
*4 Jarvis’ Amended Complaint does not plausibly allege a Fourth Amendment Excessive Force violation. Jarvis’ Amended
Complaint alleges that “Defendants followed Plaintiff and her son in menacing manner, confronted them ... and escalated the
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situation. Plaintiff was physically injured as a result of this encounter.” (Amended Complaint, Dkt. 10, pg. 3, at ¶9,10). As
a technical matter, paragraph 10's first sentence has no subject. (Id. at ¶10). So the Amended Complaint does not allege that
Defendants caused the injury. This alone is fatal to Jarvis’ claim. See Grullon, 720 F.3d at 138 (cleaned up). But assuming the
Amended Complaint alleges Defendants used force, nothing in the Amended Complaint indicates what level of force Defendants
used. Jarvis’ statement that she “was physically injured as a result of this encounter” is enough to survive § 1915s forgiving
review. But without more, Jarvis’ Amended Complaint is too threadbare to conclude that Excessive Force was used. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, § 1915 review would be meaningless for Excessive Force claims if plaintiffs need
only plead that the plaintiff and defendant officer were involved in an altercation, and the plaintiff suffered an injury. So this
Court recommends dismissing Jarvis’ Excessive Force without prejudice and with leave to amend.
C. The District Court should dismiss Jarvis’ Illegal Search force claim because it is inadequately pleaded.
The District Court should dismiss Jarvis’ illegal search claim. The Fourth Amendment prohibits illegal searches. U.S. Const.
Amend. IV. A Fourth Amendment search “occurs when the police intrude upon a person's reasonable expectation of privacy or
if the police otherwise trespass upon one's person, house, papers, or effects for the purpose of acquiring information.” Jennings v.
Decker, 359 F. Supp. 3d 196, 207–08 (N.D.N.Y. 2019). “In narrow circumstances, a suit for damages attributable to an allegedly
unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting
in the § 1983 plaintiff's still-outstanding conviction as long as the suit would not necessarily imply that the plaintiff's conviction
was unlawful.” Dayter v. Caputo, No. 6:19-CV-0477 (TJM/TWD), 2019 WL 3037504, at *7 (N.D.N.Y. June 4, 2019) (cleaned
up). Here, Jarvis never alleges that she was searched. In other words, Jarvis has not plausibly pleaded an illegal search claim.
To end, this Court recommends denying Jarvis’ illegal search claim without prejudice and with leave to amend.
D. The District Court should dismiss Jarvis’ First Amendment Retaliation claim because it is inadequately pleaded.
The Court recommends dismissing Jarvis’ First Amendment retaliation claim. “The government may not retaliate against an
individual for engaging in protected speech under the First Amendment.” Thomas v. Town of Lloyd, 711 F. Supp. 3d 122, 136
(N.D.N.Y. 2024) (Hurd J.). To plausibly allege a First Amendment retaliation claim, plaintiffs must allege that they: (1) have “an
interested protected by the First Amendment; (2) the defendants actions were motivated or substantially caused by” the plaintiff's
“exercise of that right; and (3) the defendants actions effectively chilled the exercise of the plaintiff's First Amendment rights.”
Galarza v. Monti, 327 F. Supp. 3d 594, 603 (S.D.N.Y. 2018). Here, Jarvis has neither alleged that she engaged in protected
First Amendment activity nor that Defendants actions chilled her speech. See Soundview Assocs. v. Town of Riverhead, 725 F.
Supp. 2d 320, 341 (E.D.N.Y. 2010) (“Actual chilling must be established by a change in behavior because a subjective chill
cannot serve as a substitute for a specific objective harm.”) (cleaned up). Beyond that, Jarvis has not established that Defendants
are government actors. Marte v. Montefiore Med. Ctr., No. 22-CV-03491-CM, 2022 WL 7059182, at *5 (S.D.N.Y. Oct. 12,
2022) (“The First Amendment only applies to government actors.”). As a result, the District Court should dismiss Jarvis’ First
Amendment retaliation claim without prejudice and with leave to amend.
E. The District Court should allow Jarvis to amend her Amended Complaint.
*5 Generally, before courts dismiss a pro se complaint or any part of the complaint on its own, they should afford the plaintiff
the opportunity to amend at least once; but leave to re-plead may be denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with a plaintiff's causes of action is
substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).
Here, there is no futility because Jarvis can amend her Amended Complaint to include facts that make out each claim—except
her FOIL claim because no fact or set of facts will give the District Court subject matter jurisdiction over the FOIL claim. Thus,
the Court recommends finding futility with regard to the FOIL claim.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
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RECOMMENDED, that Jarvis’ Amended Complaint should be DISMISSED WITHOUT PREJUDICE and WITH LEAVE
TO AMEND because she has not established that the District Court has subject matter jurisdiction; and it is further
RECOMMENDED, that Jarvis’ FOIL claim should be DISMISSED WITHOUT PREJUDICE and WITHOUT LEAVE
TO AMEND; and it is further
RECOMMENDED, that Jarvis’ Fourth Amendment Illegal Search claim should be DISMISSED WITHOUT PREJUDICE
and WITH LEAVE TO AMEND; and it is further
RECOMMENDED, that Jarvis’ Fourth Amendment Excessive Force claim should be DISMISSED WITHOUT
PREJUDICE and WITH LEAVE TO AMEND; and it is further
RECOMMENDED, that Jarvis’ First Amendment Retaliation claim should be DISMISSED WITHOUT PREJUDICE and
WITH LEAVE TO AMEND.
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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 DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984
F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 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
Slip Copy, 2025 WL 3963319
Footnotes
1 The citation pagination refers to the CM/ECF pagination.
2 Because this is not a cognizable claim the Court construes this as a Freedom Of Information Law (FOIL) claim.
3 The District Court can only reach this issue if it determines that Defendants were acting under the color of law because
the Fourth Amendment only prohibits government action, not private action. Burdeau v. McDowell, 256 U.S. 465, 475,
41 S. Ct. 574, 576, 65 L. Ed. 1048 (1921) (Specifying that the Fourth Amendment protects against government action).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Uppal v. Bank of America, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 10323032
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Dr. Neelam UPPAL, Plaintiff,
v.
BANK OF AMERICA; Ana Diaz; Miguel M Cordano; John D.
Bernstein; Noa Law Firm; Libler, Gonzalez and Portuondo, Defendants.
18-CV-3085 (CM)
|
Signed 10/04/2018
Attorneys and Law Firms
Neelam Uppal, Largo, FL, pro se.
ORDER OF DISMISSAL AND TO SHOW CAUSE UNDER 28 U.S.C. § 1651
COLLEEN McMAHON, Chief United States District Judge:
*1 Plaintiff filed this action pro se and in forma pauperis (IFP). By order dated May 2, 2018, the Court directed Plaintiff to
file an amended complaint that stated a viable claim, and informed Plaintiff that if she failed to comply, the Court would order
her to show cause why a filing injunction should not be imposed. Plaintiff filed a notice of appeal and a motion for recusal. The
Court denied the motion for recusal and granted Plaintiff an extension of time to amend her complaint. 1 (ECF No. 10.) Plaintiff
requested an additional extension of time, which the Court granted. Plaintiff filed an amended complaint on August 16, 2018.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis 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). 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).
BACKGROUND
Plaintiff, a medical doctor, filed this complaint against Bank of America, Florida attorneys Ana Diaz, Miguel M. Cordano, John
D. Bernstein, and Florida law firms the NOA Law Firm and Liebler, Gonzalez & Portuondo. Plaintiff listed a New York address
for herself, although some attachments suggested that she resided in Florida. The complaint set forth the following allegations:
Plaintiff filed for bankruptcy in this District. Bank of America (BOA) “failed to release garnishment on the Plaintiff's accounts
during the automatic stay;” garnished exempt accounts such as Plaintiff's IRA and education fund; improperly took money
out of Plaintiff's accounts to pay for judgments that were on appeal; and acted “in cahoots with the corrupt lawyers.” Plaintiff
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asserted that BOA violated “privacy laws” and myriad criminal statutes. Plaintiff sought to enjoin BOA from withdrawing or
freezing her accounts. There were no facts in the complaint regarding the other defendants.
In the May 2, 2018 order to amend, the Court held that Plaintiff's complaint did not comply with federal pleading rules because:
(1) federal criminal statutes do not provide for a private right of action; (2) the Court lacked jurisdiction to consider claims
arising out of her bankruptcy matter; (3) the allegation that BOA violated “privacy laws” did not state a claim; (4) the complaint
provided no facts explaining why the other defendants were named in the complaint; and (5) Plaintiff failed to establish that
the Court had diversity jurisdiction over any state law claims. The Court directed Plaintiff to amend her complaint. Noting
Plaintiff's extensive litigation history, the Court informed Plaintiff that if she fail to amend her complaint, or if she filed an
amended complaint that did not state a claim, the Court would order her to show cause why she should not be barred from filing
any new civil actions in this Court IFP without first obtaining permission from this Court for leave to file.
*2 In her amended complaint, Plaintiff asserts that she resides in Florida. She reasserts the same claims against BOA arising
from the bankruptcy action, and state law claims under the Court's diversity jurisdiction. In addition, Plaintiff alleges that
defendants conspired with other individuals who are not parties to this action, including Barry Wilkinson and George Indest,
to bribe court clerks and remove documents from bankruptcy court files. According to Plaintiff, attorneys, judges, and judicial
employees conspired “to interfere with the proper functioning and decision-making of” the court. (ECF No. 13). Plaintiff also
asserts claims under 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964.
DISCUSSION
Plaintiff's previously asserted claims are dismissed for the reasons set forth in the Court's May 2, 2018 order to amend. In short
summary, to the extent Plaintiff asserts claims under federal criminal statutes, she — a private citizen — cannot prosecute a
criminal action in federal court. 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.”). Moreover, the amended complaint makes clear that
diversity jurisdiction is lacking in this case. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that
he and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). Plaintiff indicates
in the complaint that she and all the individual defendants reside in Florida, precluding complete diversity of citizenship.
The Court construes Plaintiff's conspiracy claim as seeking relief under the civil provision of RICO, which “creates a private
right of action for individuals to enforce the RICO statute.” Mathon v. Feldstein, 303 F. Supp. 2d 317, 322 (E.D.N.Y. 2004).
“The civil RICO statute, 18 U.S.C. § 1964(c), specifies that ‘[a]ny person injured ... by reason of a violation of [§ 1962] may
sue therefor ... and ... recover threefold the damages he sustains.’ ” Bank of China, New York Branch v. NBM LLC, 359 F.3d
171, 176 (2d Cir. 2004) (quoting 18 U.S.C. § 1964(c)).
In order to state a claim for relief under § 1964(c), Plaintiff must allege that Defendants violated § 1962. This requires Plaintiff
to plead that he was injured by “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). Racketeering activity is defined in 18 U.S.C. § 1961(1) and includes mail fraud,
as defined in 18 U.S.C. § 1341, and wire fraud, as defined in 18 U.S.C. § 1343. A pattern of racketeering activity must involve
“at least two predicate acts [of racketeering activity] committed within a ten year period.” Cosmos Forms Ltd. v. Guardian Life
Ins. Co. of Am., 113 F.3d 308, 310 (2d Cir. 1997) (citing H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237 (1989));
see also 18 U.S.C. § 1961(5).
“A complaint alleging mail and wire fraud must show (1) the existence of a scheme to defraud, (2) defendant's knowing or
intentional participation in the scheme, and (3) the use of interstate mails or transmission facilities in furtherance of the scheme.”
S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996). These allegations must meet the heightened
pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure, which provides that, “[i]n alleging fraud or mistake, a
party must state with particularity the circumstances constituting fraud or mistake.” “To satisfy this requirement, a complaint
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must ‘specify the time, place, speaker, and content of the alleged misrepresentations,’ [and] ‘explain how the misrepresentations
were fraudulent.” Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013) (quoting Caputo v. Pfizer, Inc., 267 F.3d
181, 191 (2d Cir. 2001)). Under Rule 9(b), “[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged
generally,” but a complaint still must contain enough factual matter to “give rise to a strong inference that the defendant[ ] had
an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Cohen, 711 F.3d at 359 (quoting Caputo,
267 F.3d at 191).
*3 Here, Plaintiff provides no facts to state a civil RICO claim against Defendants. Plaintiff vaguely asserts that Defendants
engaged in fraud, but she does not plead these allegations with particularity. Plaintiff does not describe how any of the Defendants
other than BOA were involved in defrauding her. Instead, Plaintiff offers little more than legal conclusions to support her claims
that Defendants engaged in a scheme to defraud her. Therefore, Plaintiff's complaint does not satisfy Rule 9(b)’s heightened
pleading requirements, and the Court dismisses the conspiracy claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff invokes Title VII and § 1981, but both statutes are irrelevant to this case. Title VII provides that “[i]t shall be an
unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his 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). Plaintiff was not in an employer-
employee relationship with defendants, and therefore she cannot state a Title VII claim.
Section 1981 “protects the equal right of ‘[a]ll persons within the jurisdiction of the United States’ to ‘make and enforce
contracts’ without respect to race.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (quoting 42 U.S.C. § 1981(a)).
To state a § 1981 claim, a plaintiff must allege: (1) that he is a member of a racial minority; (2) the defendants intended to
discriminate on the basis of race; and (3) the discrimination concerns one of the statute's enumerated activities. Id. at 476 (holding
that a plaintiff is entitled to relief under § 1981 “when racial discrimination blocks the creation of a contractual relationship,
as well as when racial discrimination impairs an existing contractual relationship”). The amended complaint is bereft of any
facts suggesting a viable § 1981 claim.
LITIGATION HISTORY
A review of Public Access to Court Electronic Records (PACER) shows that Plaintiff has filed more than twenty-five cases in
federal and circuit courts in New York, New Jersey, and Florida. See Uppal v. Indest, No. 17-7072 (CM), 2017 WL 6405660,
at *2 (S.D.N.Y. Oct. 12, 2017) (dismissing Plaintiff's conspiracy claims and claims arising under federal criminal statutes,
and warning her against continued frivolous litigation), No. 17-3362 (2d Cir. May 17, 2018) (dismissing appeal as lacking an
arguable basis in law or fact). Plaintiff has previously been warned and sanctioned. In re Taneja, 2018 WL 1831853, at *1
(S.D.N.Y. 2018) (fining Plaintiff $5,000); In re Neelam Taneja a/k/a Neelam Uppal, No. 17-BK-10140 (M.D. Fla. Bankr. Jan.
11, 2018) (deeming Plaintiff “an abusive serial bankruptcy filer” and enjoining her from filing for bankruptcy in that district
for two years).
Although pro se litigants are afforded special solicitude, Plaintiff is very familiar with federal court proceedings. The Court
finds that Plaintiff should have known that this complaint lacked merit when she filed it. See Sledge v. Kooi, 564 F.3d 105,
109-10 (2d Cir. 2009) (explaining that in certain circumstances, a litigious plaintiff may not be entitled to special solicitude
because of her familiarity with the legal system). Plaintiff is ordered to show cause by declaration why she should not be barred
from filing any further actions in this Court IFP without first obtaining permission from this Court to file her complaint. See
Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam) (“The unequivocal rule in this circuit is that the district court
may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to
be heard.”). Within thirty days of the date of this order, Plaintiff must submit to this Court a written declaration setting forth
good cause why the Court should not impose this injunction upon her. If Plaintiff fails to submit a declaration within the time
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directed, or if Plaintiff's declaration does not set forth good cause why this injunction should not be entered, she will be barred
from filing any further actions IFP in this Court unless she first obtains permission from this Court to do so.
CONCLUSION
*4 The Clerk is directed to mail a copy of this order to Plaintiff, and note service on the docket. The amended complaint,
filed in forma pauperis under 28 U.S.C. § 1915(a), is dismissed for failure to state a claim upon which relief may be granted.
See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff has thirty days to show cause by written declaration why an order should not be
entered barring Plaintiff from filing any future action in forma pauperis in this Court without prior permission. A Declaration
form is attached to this order.
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 an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
SO ORDERED.
Attachment
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All Citations
Not Reported in Fed. Supp., 2018 WL 10323032
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Footnotes
1 In its order, the Court held that the notice of appeal was defective because Plaintiff was attempting to appeal from a
nonfinal order that had not been certified for interlocutory appeal. See, e.g., United States v. Rodgers, 101 F.3d 247, 252
(2d Cir. 1996) (deeming a notice of appeal from a nonfinal order to be “premature” and a “nullity,” and holding that the
notice of appeal did not divest the district court of jurisdiction).
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