Shaffer v. Tinsley et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
WILLIAM E. SHAFFER, JR.,
Plaintiff,
v. 	3:25-cv-01587
(AJB/TWD)
DR. PAUL TINSLEY and
GUTHRIE LOURDES MEDICAL CENTER,
Defendants.
_______________________________________________
APPEARANCES:
WILLIAM E. SHAFFER, JR.,
Plaintiff, pro se
326841
Broome County Correctional Facility
P.O. Box 2047
Binghamton, NY 13902
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff
William E. Shaffer, Jr. (“Plaintiff), together with an application to proceed in forma pauperis
(“IFP”). Dkt. Nos. 1, 2. Plaintiff, who is incarcerated at Broome County Correctional Facility,
has not paid the filing fee for this action.
II. 	IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court
without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.
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2
1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,
incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently
pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate
accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.
2010)).1
Upon review, the Court finds Plaintiff has submitted a completed and signed IFP
application, which demonstrates economic need. Dkt. No. 2. Plaintiff has also filed the inmate
authorization form required in this District. Dkt. No. 3. Accordingly, Plaintiff’s IFP application
is granted.2
III. 	BACKGROUND
Plaintiff commenced this action utilizing the Court’s form complaint for civil rights
actions, identifying 42 U.S.C. § 1983 as the basis for his claims. See Dkt. No. 1 at 1. The
complaint lists two defendants: Guthrie Lourdes Medical Center and Dr. Paul Tinsely. Id. at 2-3.
Plaintiff alleges that, on an unspecified date, a “mass” on the right side of his neck was
removed. Id. at 3. Dr. Paul Tinsley “had it biopsied and it came back as Thyroid cancer.” Id.
Dr. Tinsley diagnosed Plaintiff with thyroid cancer and told Plaintiff this type of cancer “does
not spread, it stays in the thyroid.” Id. But “come to find out,” the “cancer had spread” and he is
1 Section 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical injury,” a prisoner has filed three or more
actions or appeals that were subsequently dismissed as frivolous, malicious, or failing to state a
claim upon which relief may be granted. 28 U.S.C. § 1915(g). Based upon the Court’s review
of Plaintiff’s litigation history on the Federal Judiciary’s Public Access to Court Electronic
Records (“PACER”) Service, it does not appear that Plaintiff has accumulated three strikes for
purposes of 28 U.S.C. § 1915(g).
2 Plaintiff should note that although his IFP application has been granted, he will still be required
to pay fees that he may incur in this action, including copying and/or witness fees.
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“stage three.” Id. Dr. Tatiana Fedorova told Plaintiff the cancer is “in [his] lymph nodes.” Id. at
5. Plaintiff asserts a single claim for being “wrongly diagnosed.” Id. He seeks $10 million in
damages. Id.
IV. 	STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis
complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 §
1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
The court must also dismiss a complaint, or portion thereof, when it lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”).
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 arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in
original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); see also Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when
either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an
indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil
Procedure. See, e.g., Cole v. Smrtic, No. 1:24-CV-00847 (MAD/CFH), 2024 WL 4870495, at *2
(N.D.N.Y. Nov. 21, 2024) (explaining, “special solicitude for pro se pleadings has its limits,
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because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure . . . .”)
(internal quotations and citation omitted), report and recommendation adopted, 2025 WL
247901 (N.D.N.Y. Jan. 21, 2025). To survive dismissal for failure to state a claim, a complaint
must contain a short and plain statement of the claim showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In determining whether a complaint states a claim upon which relief may be granted, “the
court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citations omitted). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
V. 	DISCUSSION
A. 	Section 1983 Claims
Plaintiff brings this action under 42 U.S.C. § 1983, which provides in relevant part:
[e]very 	person 	who, 	under 	color 	of 	any 	statute, 	ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured . . . .
28 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure
for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519
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(2d Cir. 1993) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)); accord Jean-
Baptiste v. United States Dep’t of Just., No. 23-441, 2024 WL 1193062, at *1 (2d Cir. Mar. 20,
2024) (noting that Section 1983 does not provide an independent source of substantive rights).
To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured
by the Constitution or laws of the United States was violated, and (2) the right was violated by a
person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49
(1988). Private parties are therefore not generally liable under the statute. Sykes, 723 F.3d at
406 (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001));
see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States
Constitution regulates only the Government, not private parties.”).
Construing Plaintiff’s allegations to “raise the strongest arguments they suggest,”
McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v.
United States, 478 F.3d 489, 491 (2d Cir. 2007)), the complaint does not plausibly state a claim
under Section 1983.
To that end, the complaint is devoid of allegations plausibly suggesting the defendants,
Guthrie Lourdes Medical Center and Dr. Paul Tinsely, are state actors. See, e.g., White v. St.
Joseph’s Hosp., 369 F. App’x 225, 226 (2d Cir. 2010) (“[P]rivate actors and institutions, such as
the hospitals . . . named as defendants in [plaintiff’s] complaint, are generally not proper § 1983
defendants because they do not act under color of state law.”); Basile v. Connolly, 538 F. App’x
5, 7 (2d Cir. 2013) (explaining, “private individuals . . . cannot be sued under 42 U.S.C. § 1983
absent a plausible allegation that they acted under color of state law.”). The complaint is
similarly devoid of allegations plausibly suggesting these defendants were acting under color of
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state law.3 “Since it is the duty of the plaintiff to allege state action on the part of the defendant
named in a complaint, a court may dismiss an action under 28 U.S.C. § 1915(e) where a plaintiff
fails to plead such a nexus.” Denes v. Glens Falls Hosp., No. 1:05 CV 0838 (GLS/DRH), 2005
WL 2033489, at *2 (N.D.N.Y. Aug. 17, 2005). Such is the case here.
In any event, Plaintiff claims he was “wrongly diagnosed” on an unspecified date. Dkt.
No. 1 at 5. Thus, the complaint is also devoid of allegations plausibly suggesting “a right
secured by the Constitution or laws of the United States was violated[.]” West, 487 U.S. 48-49.
At most, “Plaintiff’s potential claims for negligence and medical malpractice arise under state
law, not federal law.” Reyes v. New York Presbyterian Hosp., No. 20-CV-3046, 2020 WL
6161261, at *2 (E.D.N.Y. Oct. 21, 2020); Panchitkhaew v. Long Island Jewish Med. Ctr., No.
18-CV-4434, 2019 WL 1492780, at *3 (E.D.N.Y. Apr. 4, 2019) (noting that medical malpractice
and negligence are state law claims).
Accordingly, the undersigned recommends dismissal of Plaintiff’s Section 1983 claims
for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
B. 	State Law Claims
A district court may decline to exercise supplemental jurisdiction over state law claims
when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early
3 A private actor may satisfy the “under-color-of-state-law” element where: (1) “the entity acts
pursuant to the coercive power of the state or is controlled by the state”; (2) “the state provides
significant encouragement to the entity,” and “the entity is [either] a willful participant in joint
activity with the state or the entity’s functions are entwined with state policies”; or (3) “the entity
has been delegated a public function by the state.” Vaughn v. Phoenix House N.Y. Inc., 957 F.3d
141, 147 (2d Cir. 2020). “The activities of private hospitals and their officers typically do not
satisfy any of these tests.” Fisher v. Glens Falls Hosp., No. 1:25-CV-831 (AJB/DJS), 2025 WL
2324128, at *2 (N.D.N.Y. July 15, 2025), report and recommendation adopted, 2025 WL
2323523 (N.D.N.Y. Aug. 12, 2025).
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stages and only state-law claims remain, the federal court should decline the exercise of
jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
Here, having recommended dismissal of Plaintiff’s Section 1983 claims, the undersigned
also recommends that the District Court decline to exercise its supplemental jurisdiction over any
state law claims Plaintiff may be asserting.
C. 	Leave to Amend
“Generally leave to amend should be freely given, and a pro se litigant in particular
should be afforded every reasonable opportunity to demonstrate that he has a valid claim.”
Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (cleaned up). Mindful of Plaintiff’s pro se
status, the undersigned recommends Plaintiff’s complaint be dismissed without prejudice and
with leave to amend.4
VI. 	CONCLUSION
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED. The Clerk shall
provide the Superintendent of the facility, designated by Plaintiff as his current location, with a
copy of Plaintiff’s inmate authorization (Dkt. No. 3) and notify the official that this action has
4 The Court advises Plaintiff that should he be permitted to amend his complaint, any amended
pleading he submits to this Court must comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Any amended complaint must set forth all of the claims he intends to assert against
the defendants and must demonstrate that a case or controversy exists between the Plaintiff and
the defendants which Plaintiff has a legal right to pursue and over which this Court has
jurisdiction. Any amended complaint must set forth the facts that give rise to the claims,
including the dates, times, and places of the alleged underlying acts. Plaintiff is cautioned that
no portion of his prior complaint shall be incorporated into any amended complaint by reference.
If Plaintiff is alleging the defendants violated a law, he should specifically refer to such law. Of
course, Plaintiff may also pursue his claims in state court if appropriate.
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been filed and that Plaintiff is required to pay the Northern District of New York the statutory
filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk shall provide a copy of Plaintiff’s inmate authorization (Dkt.
No. 3) to the Financial Deputy of the Clerk’s Office; and it is further
RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED WITHOUT
PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk serve a copy of this Report-Recommendation and Order on
Plaintiff in accordance with the Local Rules and provide Plaintiff with copies of the unpublished
decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to
file written objections to the foregoing report.5 Such objections shall be filed with the Clerk of
the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)
(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: January 23, 2026
Syracuse, New York
5 If you are proceeding pro se and are served with this Report-Recommendation and Order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Report-Recommendation and Order was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 5185047
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.
REPORT AND RECOMMENDATION 1
1 At the time the action was originally filed,
the Honorable Leonard B. Sand, United States
District Judge, granted plaintiff's application for in
forma pauperis status based on plaintiff's ex parte
submission (Docket Item 1). Although the present
application seeking to revoke plaintiff's in forma
pauperis status is non-dispositive, I address it by
way of a report and recommendation to eliminate
any appearance of a conflict between the decision
of a district judge and that of a magistrate judge.
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES, United
States District Judge,
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item 11),
defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke
plaintiff's in forma pauperis (“IFP”) status on the ground that
plaintiff has previously had at least three Section 1983 actions
dismissed as frivolous, malicious or failing to state a claim
upon which relief could be granted, and has not shown that he
is in imminent danger of serious physical injury. Defendant
further seeks an order directing that the action be dismissed
unless plaintiff pays the full filing fee within thirty (30) days.
For the reasons set forth below, I respectfully recommend that
defendant's motion be granted.
II. Facts
Plaintiff, a sentenced inmate in the custody of the New
York State Department of Correctional Services, commenced
this action on or about January 12, 2009 by submitting his
complaint to the Court's Pro Se office. Plaintiff alleges, in
pertinent part, that he has “a non-healing ulcer that is gane
green [sic ]” and that defendant Bernstein “did not want
to treat the ulcer right” (Complaint, dated March 3, 3009
(Docket Item 2) (“Compl.”), at 3).
The action was originally commenced against two defendants
—Dr. Bernstein and Dr. Finkelstein. The action was dismissed
as to Dr. Finkelstein because the complaint contained no
allegations whatsoever concerning Dr. Finkelstein (Order
dated February 18, 2010 (Docket Item 9)).
On March 4, 2010, the sole remaining defendant—Dr.
Bernstein—filed the current motion. Plaintiff failed to submit
a response. Accordingly, on August 20, 2010, I issued an
Order advising plaintiff that if he wished to oppose the
motion, he must submit his opposition by September 15, 2010
and that after that date I would consider the motion fully
submitted and ripe for decision (Order dated August 20, 2010
(Docket Item 15)). The only submission plaintiff has made
in response to my Order is a multi-part form issued by the
New York State Department of Correctional Services entitled
“Disbursement or Refund Request.” 2 By this form, plaintiff
appears to request that the New York State Department of
Correctional Services pay the filing fee for this action. The
form is marked “Denied.”
2 Plaintiff sent this form directly to my chambers,
and it has not been docketed by the Clerk of the
Court. The form will be docketed at the time this
Report and Recommendation is issued.
III. Analysis
28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged. Although an indigent,
incarcerated individual need not prepay the filing fee at the
time at the time of filing, he must subsequently pay the fee,
to the extent he is able to do so, through periodic withdrawals
from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.
City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent
abuse of the judicial system by inmates, paragraph (g) of
this provision denies incarcerated individuals the right to
proceed without prepayment of the filing fee if they have
repeatedly filed meritless actions, unless such an individual
shows that he or she is in imminent danger of serious
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d
Cir.2004) (“[T]he purpose of the PLRA ... was plainly to
curtail what Congress perceived to be inmate abuses of the
judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d
Cir.1997). Specifically, paragraph (g) provides:
*2 In no event shall a prisoner bring
a civil action or appeal a judgment
in a civil action or proceeding under
this section if the prisoner has, on
3 or more prior occasions, while
incarcerated or detained in any facility,
brought an action or appeal in a court
of the United States that was dismissed
on the grounds that it is frivolous,
malicious, or fails to state a claim upon
which relief may be granted, unless the
prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
If an inmate plaintiff seeks to avoid prepayment of the filing
fee by alleging imminent danger of serious physical injury,
there must be a nexus between the serious physical injury
asserted and the claims alleged. Pettus v. Morgenthau, 554
F.3d 293, 298 (2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from proceeding
in this action without prepayment of the filing fee.
The memorandum submitted by defendant establishes that
plaintiff has had his IFP status revoked on at least four prior
occasions as a result of his repeatedly filing meritless actions.
• In 2005, plaintiff commenced an action in the United
States District Court for the Northern District of New
York seeking to have his infected leg amputated.
Nelson 3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007
WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter,
the Honorable Norman A. Mordue, Chief United States
District Judge, accepted and adopted the Report and
Recommendation of the Honorable David E. Peebles,
United States Magistrate Judge, that plaintiff had
brought three or more prior actions that had been
dismissed for failure to state a claim and that plaintiff's
IFP status should, therefore, be revoked. 2007 WL
4333776 at *1–*2.
3 It appears that plaintiff uses the names David
J. Cash and Dennis Nelson interchangeably. In
his complaint in this matter, plaintiff states that
the Departmental Identification Number, or DIN,
assigned to him by the New York State Department
of Correctional Services (“DOCS”) is 94–B–0694
(Compl. at 7). DOCS inmate account records
submitted by plaintiff in connection with his
application for IFP status indicate that DIN 94–
B–0694 is assigned to Dennis Nelson. In addition,
the DOCS form described in footnote two bears
the docket number of this action, but is signed in
the name of Dennis Nelson and was sent in an
envelope identifying the sender as Dennis Nelson.
A subsequent action has been filed in this Court
in which the plaintiff identifies himself as Dennis
Nelson but lists his DIN as 94–B–0694, the same
DIN used by plaintiff here. Finally, plaintiff has
submitted nothing to controvert the assertion in
defendant's papers that David Cash and Dennis
Nelson are the same person. In light of all these
facts, I conclude that David Cash and Dennis
Nelson are both names used by plaintiff.
• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),
2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff
again filed an action concerning the medical care
he was receiving for his left leg. The Honorable
Thomas J. McAvoy, United States District Judge,
accepted the Report and Recommendation of Magistrate
Judge Peebles, and revoked plaintiff's IFP status and
dismissed the action on the ground that plaintiff had
previously commenced at least three actions that had
been dismissed on the merits. 2008 WL 3836387 at *1,
*7.
• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)
(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),
Judge McAvoy again revoked plaintiff's IFP status
on the ground that plaintiff had commenced three
or more actions that constituted “strikes” under
Section 1915(g) and had not shown an imminent
threat of serious physical injury. 2008 WL 268215
at *1–*2.
• Finally, in Nelson v. Chang, No. 08–CV–1261
(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,
2009), the Honorable Kiyo A. Matsumoto, United
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Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
States District Judge, also found, based on the
cases discussed above, that plaintiff had exhausted
the three strikes permitted by Section 1915(g)
and could not proceed IFP in the absence of a
demonstration of an imminent threat of serious
physical injury. 2009 WL 367576 at *2–*3.
*3 As defendant candidly admits, there is one case in which
plaintiff's leg infection was found to support a finding of an
imminent threat of serious physical injury sufficient to come
within the exception to Section 1915(g). Nelson v. Scoggy,
No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2
(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment
was subsequently granted for defendants in that case, and
the complaint was dismissed. Judge Mordue concluded that
there was no genuine issue of fact that plaintiff had received
adequate medical care for his leg wound and that the failure
of the leg to heal was the result of plaintiff's own acts of
self-mutilation and interference with the treatment provided.
Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009
WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009). 4
4 Although the form complaint utilized by plaintiff
expressly asks about prior actions involving the
same facts, plaintiff disclosed only the Scoggy
action and expressly denied the existence of any
other actions relating to his imprisonment (Compl.
at 6).
In light of the foregoing, there can be no reasonable dispute
that plaintiff has exceeded the three “strikes” allowed by
Section 1915(g) and that he cannot, therefore, proceed here
without prepaying the filing fee unless he demonstrates
an imminent threat of serious physical injury. Plaintiff has
declined to attempt to make this showing in response to
defendant's motion, and the only suggestion in the record
of serious physical injury is the bare statement in the
complaint that plaintiff “need[s] to go back to a wound speci
[a]list before the gane green [sic ] kills [him]” (Compl. at
5). “However, unsupported, vague, self-serving, conclusory
speculation is not sufficient to show that Plaintiff is, in fact,
in imminent danger of serious physical harm.” Merriweather
v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and
White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);
see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)
(imminent danger exception to Section 1915(g) requires
“specific fact allegations of ongoing serious physical injury,
or of a pattern of misconduct evidencing the likelihood
of imminent serious physical injury”). Given the plaintiff's
history, as set forth in the cases described above, I conclude
that this vague statement is insufficient to support a finding
that plaintiff is in imminent danger of serious physical
injury. 5
5 Plaintiff has sent me several letters describing his
wound and its symptoms in detail, and I have
no doubt that the wound is serious. However, in
granting summary judgment dismissing an action
last year based on the same allegations, Judge
Mordue of the Northern District found that there
was no genuine issue of fact that plaintiff's own
conduct was responsible for the ineffectiveness of
the treatment he was provided:
Furthermore, to the extent that Nelson's medical
treatment was delayed, much of the delay
was due to his own refusal to cooperate with
medical staff and his self-mutilations. Nelson's
actions to thwart the medical treatment of his
wound cannot be construed as interference or
indifference by anyone else.... [T]he medical
treatment Nelson received complied with
constitutional guarantees as it was appropriate,
timely, and delayed only by Nelson's own
actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
Given plaintiff's total failure to respond to the
pending motion and his failure to even deny that
he is actively thwarting treatment of his wound, it
would be sheer speculation for me to conclude that
he is in imminent danger of a serious injury as a
result of defendant's conduct.
IV. Conclusion
Accordingly, for all the foregoing reasons, I find that plaintiff
has had three or more prior actions dismissed as being
frivolous, malicious or failing to state a claim and that
plaintiff's in forma pauperis status should, therfore, be
revoked. If your Honor accepts this recommendation, I further
recommend that the action be dismissed unless plaintiff pays
the filing fee in full within thirty (30) days of your Honor's
final resolution of this motion.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections. See also Fed.R.Civ.P. 6(a). Such objections (and
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responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the
Honorable Barbara S. Jones, United States District Judge,
500 Pearl Street, Room 1920, and to the Chambers of the
undersigned, 500 Pearl Street, Room 750, New York, New
York 10007. Any requests for an extension of time for filing
objections must be directed to Judge Jones. FAILURE TO
OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155
(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,
300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–
59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
38 (2d Cir.1983).
All Citations
Not Reported in F.Supp.2d, 2010 WL 5185047
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, et al. Defendants.
No. 1:24-CV-00847 (MAD/CFH)
|
Signed November 21, 2024
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”)
commenced this action (No. 1:24-CV-00623) on May 6,
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court
construes to be a supplement to the complaint. 1 See Dkt. No.
7. In lieu of paying this Court's filing fees, he submitted an
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Thus, the Court proceeds to its review of the
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also
submitted for the Court's review a Pro Se Application for
Permission to File Electronically and a Motion to Appoint
Counsel. See Dkt. Nos. 4, 5.
1 The submission includes a letter addressed to
District Judge D'Agostino, titled, “Requirements
for Cases Removed From State Court,” Dkt. No.
7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with
the caption of Cole v. County of Montgomery,
dated December 7, 2022. See Dkt. No. 7. The
undersigned has reviewed this submission in
connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
Cir. 2004).
2 Plaintiff is advised that, although he has been
granted IFP status, he is still required to pay all fees
and costs he may incur in this action, including,
but not limited to, copying fees, transcript fees, and
witness fees.
II. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
(per curiam) (internal quotation marks omitted); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro se
litigant's submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro
se litigant's allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law[.]”
*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
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“The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure [(‘Fed.
R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668
(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)
(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought...
FED. R. CIV. P. 8(a). Although “[n]o technical form is
required,” the Federal Rules make clear that each allegation
contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d). “The purpose ... is to give fair notice
of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
54 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of a defendant's duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
*3 This Court also has an overarching obligation to
determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of the
complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) 3
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”).
3 Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
plaintiff.
B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
Against Rights & Title U.S.C. 18 Section 242 Deprivation
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
cover sheet further provides that his cause of action involves,
“Violation of Due process, Speedy Trial Rights, Ineffective
Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
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See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local
officials,” plaintiff responds, “Due Process, 30.30 Speedy
Trial Violation, Ineffective Assistance of counsel.” 4 Id. In
response to a question asking him to explain “how each
defendant acted under color of state or local law,” plaintiff
states “Each judge deliberately denied me due process, and
refused to look into the paperwork to see that i was improperly
denied my speedy trial rights. It was a tean [sic] effort.
The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned
actions were done and upheld even after I showed federal law
with supportive case law as a pro se litigant.” Id.
4 Although plaintiff generally references ineffective
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would
not be considered ineffective assistance of counsel
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney.
Plaintiff provides that his “case is still on appeakl [sic] in
Appellate Court Third Department. I feel they are guilty,
or part of what I call a scandal. I went to them from the
very start with a complaint to the grievance committee,
where they denied any wrongdoing. It must be ok to violate
Constitutional rights there. This is from March 2019 to
present” Id.
In response to a question that asks plaintiff to state the facts
underlying his claims, plaintiff states, “Please see attached
Article 78 that is attached. It was dismissed being in the wrong
court, but is on point.” Id. at 4. Plaintiff did not provide the
Court with any such attachment and has not submitted any
Article 78 materials. See Compl., Dkt. No. 7.
In response to the form complaint's question asking about
any injuries suffered as a result of the conduct he complains
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by
arguments not legally allowed to give. Loss of income,
inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial
traumam [sic] due to my legal battles.” Id. Indicating the relief
sought, plaintiff states
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel,
malice, Brady Violation, Petitioner
claims deliberate misconduct and
malice in Montgomery County Court,
the Saratoga Disrict Attorney's Office,
and the Supreme Court Appellate
Division Third department. ** This is
subject to change if an attorney agrees
to represent.
Compl. at 5. Although he typed his name, plaintiff does not
sign the complaint where a signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme
Court. See id. He states that he seeks or sought the removal
because he was told he was “not guarantee counsel” at the
state, but that “[i]n Federal Court, there is that option, pending
qualification, and I am told, if a lawyer agrees to take it, then
I really have something. I am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel × 4. That is why I am
pro se. I had to protect myself when appointed counsel did
not. It also went through a couple judges which is why they
are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
thing I saw not just with my words, but with transcripts 5 from
the County Court, and the Adult Drug Court.” Id. Plaintiff
refers to being drug free for four and a half years and having
academic success in college. Id. at 3. He states that he wishes
this Court to hear his case because he believes he will not
“see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
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Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
5 Plaintiff did not provide any transcripts.
C. Discussion 6
6 As a courtesy, the Court has provided plaintiff with
copies of any unpublished cases cited within this
Report-Recommendation & Order.
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
does not provide a short and plain statement of the claim
demonstrating why he is entitled to relief. Although he
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to
“Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
defendants of the claims against them. See FED. R. CIV. P.
8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further
lead the undersigned to recommend dismissal. First, in
referencing to “Due Process, 30.30 Speedy Trial Violation,
Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek
some kind of review of a criminal proceeding or conviction.
See Compl. at 3. Plaintiff also accuses all named judges
of denying him due process and contends that an unnamed
“ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4.
Such claims would be barred by Heck v. Humphrey.
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, the Supreme Court held that in order for a
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ
of habeas corpus.” Id. at 486-87. The court further held
that “[a] claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.” Id. at 487 (emphasis in
original).
[ ]
Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
no matter the target of the prisoner's suit ... if success in
that action would necessarily demonstrate the invalidity
of confinement or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (emphasis in original).
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24-
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s),
conviction, or sentence has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Zografidis, 2022 WL 21756775, at *7. Although
plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal
proceedings, conviction, and/or sentence. The claims plaintiff
seeks to pursue relate to allegations that he was denied
due process, denied speedy trial rights, and experienced
ineffective assistance of counsel. Accordingly, plaintiff's
claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. 7
7 The undersigned recognizes that claims that are
determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has
recommended dismissal with prejudice because
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plaintiff has only named defendants who are
immune from relief. Accordingly, the undersigned
is recommending dismissal of the claims based on
these immunities, rather than a Heck dismissal. The
undersigned has included the Heck review for sake
of completeness.
3. Immunities
Plaintiff names as defendants several defendants who are
immune from suit. Insofar as plaintiff names Hon. Michael
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate's Court Judge” 8 such
claims would be barred by judicial immunity.
8 Although plaintiff provides no facts regarding
any family court proceedings, that he named a
family court judge and makes general reference
to that he seeks review over actions taken by
a family court judge. Even if plaintiff were to
amend his complaint to provide facts about any
possible family court proceedings and details
about any alleged violations of his rights that he
believes he faced in that Court, if plaintiff seeks
this Court's review of an order of the family
court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court's review
or intervention of a currently pending/ongoing
Family Court proceeding, such review would be
barred by Younger. See Porter v. Nasci, No. 5:24-
CV-0033 (GTS/TWD), 2024 WL 1142144, at
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted),
report and recommendation adopted, 2024 WL
3158645 (N.D.N.Y. June 25, 2024) (“Under the
Rooker-Feldman doctrine, a federal district court
lacks authority to review a final state court order
or judgment where a litigant seeks relief that
invites the federal district court to reject or overturn
such a final state court order or judgment.”); see
also Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal
courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call
into question ongoing state proceedings.”).
*6 “With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
curiam)). “Judicial immunity has been created for the public
interest in having judges who are ‘at liberty to exercise
their functions with independence and without fear of
consequences.’ ” Id. (quoting Huminski v. Corsones, 396
F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
when the judge is accused of acting maliciously or corruptly.”
Id. (citation omitted); see Positano v. New York, No. 12-
CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
Mar. 7, 2013) (explaining that the plaintiff may not bring
action against a judge for actions taken in his judicial capacity,
even when the actions violated the ADA).
“Judicial immunity is immunity from suit, not just immunity
from the assessment of damages.” Zavalidroga, 2017 WL
8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “The only two circumstances in which judicial
immunity does not apply is when he or she takes action
‘outside’ his or her judicial capacity and when the judge takes
action that, although judicial in nature, is taken ‘in absence
of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
“In determining whether or not a judge acted in the clear
absence of all jurisdiction, the judge's jurisdiction is ‘to be
construed broadly, and the asserted immunity will only be
overcome when the judge clearly lacks jurisdiction over the
subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).
“Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it
is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Ceparano, 404 F. App'x at 539
(internal quotation marks and citation omitted). “Further, if
the judge is performing in his judicial capacity,” he “ ‘will not
be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted
in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.
App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362
(1978)). “Judges are not, however, absolutely ‘immune from
liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
Thus, as plaintiff names the judicial defendants in relation to
actions or omissions that they took in their roles as judges,
their actions are protected by absolute judicial immunity.
To the extent plaintiff names Hon. Felix Catena, “Retired
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Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does
not impact [his or] her immunity for acts taken in [his or]
her official capacity before her retirement.” McCray v. Lewis,
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
sue the judges their official capacities, the suit is barred by the
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
shields judges from suit to the extent that they are sued in their
official capacities.”).
*7 In addition, plaintiff also references, exclusively in his
“relief” section of the form complaint, “the Supreme Court
Appellate Division, Third Department” when stating that he
experienced “deliberate misconduct and malice.” Compl. at
7. He does not name this Court as a defendant anywhere in
the complaint. However, even if plaintiff were to have named
the Appellate Division, Third Department as a defendant,
such defendant would also need to be dismissed based on
Eleventh Amendment immunity as the Appellate Division “is
merely an agency or arm of New York State.” Benyi v. New
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.
Apr. 13, 2021) (citation omitted). Accordingly, to the extent
a liberal reading of the complaint may suggest that plaintiff
seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See
Compl.
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
Maxwell, Esq., Assistant District Attorney, in addition to the
Heck issues noted above, he would be protected by absolute
prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability
for those prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process.’ ” Barr v.
Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate.”
Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process,
“involves the exercise of discretion.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such
as “deciding whether to bring charges and presenting a case
to a grand jury or a court, along with the tasks generally
considered adjunct to those functions, such as witness
preparation, witness selection, and issuing subpoenas.”
Simon v. City of New York, 727 F.3d 167, 171 (2d
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
Court has found prosecutors absolutely immune from
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
the State's case ... [but] withheld absolute immunity for
conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining
witness.”). “[O]nce a court determines that challenged
conduct involves a function covered by absolute immunity,
the actor is shielded from liability for damages regardless
of the wrongfulness of his motive or the degree of injury
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (1985)).
Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld
potentially exculpatory material” that was used against
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater
detail, absolute immunity would extent to even this alleged
misconduct as such allegations clearly fall within the scope of
prosecutorial immunity. Accordingly, it is recommended that
any claims against ADA Samuel V. Maxwell be dismissed
for absolute prosecutorial immunity. “Furthermore, because
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading,
I recommend that the dismissal be with prejudice.” Phillips
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 223 (2d Cir. 2000)). 9
9 Plaintiff appears to characterize his submissions as
a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery
County Court to this Court. See Dkt. No. 7
(citing 28 U.S.C. § 1441). However, in addition
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Cole v. Smrtic, Slip Copy (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
to the infirmities mentioned above, plaintiff has
not demonstrated that any proceeding related to
this complaint has been properly removed to, or
is subject to removal to, this Court. See, e.g.,
28 U.S.C. § 1446. Indeed, plaintiff's submissions
appear to indicate that plaintiff is the plaintiff in the
County Court action. See id. § 1446(a).
III. Conclusion
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims
against Honorable Michael W. Smrtic; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; and Felix Catena,
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be
DISMISSED WITH PREJUDICE as follows: (1) claims
brought against them in their personal/individual capacities
for judicial immunity, and (2) claims brought against them in
their official capacities for Eleventh Amendment immunity;
and it is further
RECOMMENDED, that plaintiff's section 1983 claims
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading
of the complaint may suggest that plaintiff seeks to name
the Appellate Division, Third Department, as a defendant
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH
PREJUDICE as barred by Eleventh Amendment immunity,
and it is
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically (dkt. no. 4) and motion to
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did
not contend that he made any efforts to obtain
counsel on his own, show proof of any attorneys
he contacted. See Terminate Control Corp v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), parties have
FOURTEEN (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y
of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see
also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. 11
11 If you are proceeding pro se and are served with
this Report-Recommendation and Order by mail,
three (3) additional days will be added to the
fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
Recommendation and Order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(c).
All Citations
Slip Copy, 2024 WL 4870495
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 19 of 35

Jean-Baptiste v. United States Department of Justice, Not Reported in Fed. Rptr. (2024)
2024 WL 1193062
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1193062
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Harold JEAN-BAPTISTE, Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Merrick B. Garland, Federal Bureau of Investigation,
Christopher Wray, Director of the Federal Bureau of
Investigations, in his official capacity, City of New York,
Mayor Eric L. Adams, in his official capacity, Police
Commissioner Keechant Sewell, in his official capacity,
Corporation Counsel of the City of New York, Office of
the Attorney General of the State of New York, Damian
Williams, United States Attorney, Defendants-Appellees.
23-441
|
March 20, 2024
Appeal from a judgment of the United States District Court
for the Southern District of New York (Broderick, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Harold Jean-Baptiste, pro
se, Rosedale, NY.
FOR CITY DEFENDANTS-APPELLEES: Melanie T. West,
Lauren L. O'Brien, for Hon. Sylvia O. Hinds-Radix,
Corporation Counsel of the City of New York, New York, NY.
FOR FEDERAL DEFENDANTS-APPELLEES: Brandon H.
Cowart, Christopher Connolly, for Damian Williams, United
States Attorney for the Southern District of New York, New
York, NY.
PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY,
ALISON J. NATHAN, Circuit Judges.
SUMMARY ORDER
*1 In the district court, pro se litigant Harold Jean-
Baptiste alleged that the Federal Bureau of Investigation
(FBI) conspired with a private car-transportation company to
frame him for violating New York's vehicle registration law.
He also claimed that the FBI instructed the New York Police
Department to deny his application for a gun license, violating
his Second Amendment rights. The district court dismissed
his claims against all defendants for failure to properly serve,
dismissed his Second Amendment claim for lack of standing,
and concluded that his claims were without merit in any
event. Jean-Baptiste timely appealed. We assume the parties’
familiarity with the remaining facts, the procedural history,
and the issues on appeal, to which we refer only as necessary
to explain our decision to affirm.
As an initial matter, Jean-Baptiste's appellate brief does not
address the dismissal of his Second Amendment claim. While
pro se briefs are liberally construed, see McLeod v. Jewish
Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017), they
still must provide “a clear statement of the issues on appeal,”
Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). Jean-
Baptiste's brief fails to do so, and we therefore consider his
Second Amendment claim abandoned. See Gerstenbluth v.
Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir.
2013).
Moreover, in his brief, Jean-Baptiste argues only that the
defendants waived proper service by appearing in the suit,
which he alleges showed that they received the summons and
complaint. But as the district court explained, actual notice
does not cure improper service. See Martin v. N.Y. State Dep't
of Mental Hygiene, 588 F.2d 371, 373 (2d Cir. 1978) (“A
showing that the defendant has had actual notice of the lawsuit
is not sufficient to bar a motion to dismiss[.]”); see also
United States v. Thompson, 921 F.3d 82, 87 (2d Cir. 2019)
(same, under New York law). Similarly, while Jean-Baptiste
contends that he served the government entities by mail, the
district court observed that he did not do so in compliance
with N.Y. C.P.L.R. § 312-a(a), a finding he does not challenge.
Because he raises no other challenge to the improper service
issue in his appellate brief, we may affirm on that basis alone.
See LoSacco v. City of Middletown, 71 F. 3d 88, 92–93 (2d
Cir. 1995).
In any case, we may also affirm on the basis that Jean-
Baptiste's non-Second-Amendment claims are without merit.
We review a dismissal for failure to state a claim de novo,
“accepting as true all of the complaint's well-pleaded facts.”
Washington v. Barr, 925 F.3d 109, 113 (2d Cir. 2019). Here,
Jean-Baptiste did not plead sufficient facts to state a valid
Fourth Amendment claim premised on the alleged monitoring
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Jean-Baptiste v. United States Department of Justice, Not Reported in Fed. Rptr. (2024)
2024 WL 1193062
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
of his laptop. He also did not plead non-conclusory facts
suggesting that any conduct was motivated by unlawful
discrimination or unconstitutional conduct, and neither the
federal statutes he cited, nor the Ninth Amendment, provides
an independent source of substantive rights. See United Bhd.
of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott,
463 U.S. 825, 833 (1983) (addressing § 1985(3)); Phillips v.
City of New York, 775 F.3d 538, 544 (2d Cir. 2015) (Ninth
Amendment); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.
1999) (§ 1983).
*2 Jean-Baptiste also relied on various federal criminal
statutes, but none are enforceable by a private citizen. See
Schlosser v. Kwak, 16 F.4th 1078, 1083 (2d Cir. 2021); see
also Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 511
(2d Cir. 1994).
Finally, Jean-Baptiste has not shown that the district court
was biased against him or denied him access to the courts
by dismissing his claims. An unfavorable ruling by itself is
not grounds for a claim of bias, and nothing indicates that
Jean-Baptiste's access to the courts was obstructed or impeded
in any way. See Liteky v. United States, 510 U.S. 540, 555
(1994).
We have considered Jean-Baptiste's remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
All Citations
Not Reported in Fed. Rptr., 2024 WL 1193062
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 21 of 35

Denes v. Glens Falls Hosp., Not Reported in F.Supp.2d (2005)
2005 WL 2033489
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2005 WL 2033489
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Steven M. DENES, Plaintiff,
v.
GLENS FALLS HOSPITAL, Defendant.
No. 1:05 CV 0838 GLS DRH.
|
Aug. 17, 2005.
Attorneys and Law Firms
Steven Denes, Washington Correctional Facility, Comstock,
NY, Plaintiff, pro se.
DECISION and ORDER
SHARPE, J.
I. Background.
*1 Presently before this Court is an application to proceed
in forma pauperis and civil rights complaint filed by Steven
Denes (“plaintiff” or “Denes”). Denes has not paid any fee
relating to this action.
For the reasons stated below, plaintiff's complaint is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the
Local Rules of Practice of this District.
In his pro se complaint Denes claims he was treated at
Glens Falls Hospital in 2002. The physicians who treated him
removed rocks and glass from his hand after an automobile
accident. Plaintiff alleges that it has been over two years, and
there are still bumps in his hand. Plaintiff seeks monetary
damages. For a complete statement of plaintiff's claims,
reference is made to the entire complaint filed herein.
II. Discussion.
Consideration of whether a pro se plaintiff should be
permitted to proceed in forma pauperis is a two-step process.
First, the Court must determine whether the plaintiff may
proceed with the action without prepaying, in full, the $250.00
filing fee. The Court must then consider whether the causes
of action stated in the complaint are, inter alia, frivolous or
malicious, or if they fail to state a claim upon which relief
may be granted. 28 U.S.C. § 1915(e)(2)(B).
(A) Application to Proceed In Forma Pauperis.
In the present case, the Court has determined that Denes'
financial status qualifies him to file or “commence” this action
without prepaying in full the $250.00 filing fee. However,
plaintiff did not file an inmate authorization indicating his
consent to pay the current filing fee. Thus, he may not be
permitted to proceed in forma pauperis until such time as a
current authorization is filed with the Court. Thus, at this time,
plaintiff's application to proceed in forma pauperis will be
denied as incomplete.
(B) Plaintiff's Claim.
Turning to the second inquiry, 28 U.S.C. § 1915(e), as
amended, directs that the Court:
(2) [S]hall dismiss the case at any time if the court determines
that -
* * *
(B) the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
Thus, there is a responsibility on the Court to determine that a
complaint may be properly maintained in the District before
it may permit a plaintiff to proceed with an action. Id.
(1) Jurisdiction of the Court.
The subject matter jurisdiction of the federal district courts is
limited and is set forth generally in 28 U.S.C. §§ 1331 and
1332. Under these statutes, federal jurisdiction is available
only when a federal question is presented or when the
parties are of diverse citizenship and the amount in question
exceeds $75,000. It is well established that the Court may
raise the question of jurisdiction sua sponte, and that where
jurisdiction is lacking, “dismissal is mandatory.” United
Food & Commercial Workers Union, Local 919, AFL-CIO
v. Centermark Properties Meriden Square, Inc., 30 F.3d 298,
301 (2d Cir.1994); see also Fed.R.Civ.P. 12(h)(3).
(a) Diversity Jurisdiction.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 22 of 35

Denes v. Glens Falls Hosp., Not Reported in F.Supp.2d (2005)
2005 WL 2033489
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
*2 Diversity jurisdiction exists only if there is diversity of
citizenship between the parties and the matter in controversy
exceeds the sum or value of $75,000. See 28 U.S.C. § 1332(a).
The party seeking to invoke diversity jurisdiction must
establish that complete diversity existed at the time the action
was commenced. Advani Enterprises, Inc. v. Underwriters
at Lloyds, 140 F.3d 157, 160 (2d Cir.1998). In this action
plaintiff does not allege, nor does it appear from the pleadings,
that there is complete diversity between the parties to this
action.
(b) Federal Question.
Plaintiff brought this action pursuant to 42 U.S.C. § 1983.
Section 1983 establishes a cause of action for “the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. German v.
Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573
(S.D.N.Y.1995) (citing Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote
omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995
WL 236245, *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J .) (§
1983 “is the vehicle by which individuals may seek redress
for alleged violations of their constitutional rights.”) (citation
omitted).
However, parties may not be held liable under this section
unless it can be established that they have acted under the
color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d
625 (2d Cir.1994) (noting state action requirement under §
1983); Wise v. Battistoni, 92-Civ-4288, 1992 WL 380914, *1
(S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). State
action is an essential element of any § 1983 claim. See Gentile
v. Republic Tobacco Co., No. 95-CV-1500, 1995 WL 743719,
*2 (N.D.N.Y. Dec. 6, 1995) (Pooler, D.J.) (citing Velaire v.
City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994)
(McAvoy, C.J.) (citation omitted)).
In the present case, the plaintiff's complaint contains no
allegations that defendant Glens Falls Hospital is a state actor.
Since it is the duty of the plaintiff to allege state action on
the part of the defendant named in a complaint, a court may
dismiss an action under 28 U.S.C. § 1915(e) where a plaintiff
fails to plead such a nexus. See, e.g., Carollo-Gardner v.
Diners Club, 628 F.Supp. 1253, 1256-57 (E.D.N.Y.1986)
(dismissing as frivolous pro se complaint where plaintiff
failed to allege state action on part of defendants) (citations
omitted); see also DeMatteis v. Eastman Kodak Co., 511
F.2d 306, 311 (2d Cir.) (affirming dismissal of complaint
where plaintiff failed to include allegations of state action
in complaint), modified on other grounds, 520 F.2d 409 (2d
Cir.1975); Lawson v. Abrams, No. CV-84-4325, 1988 WL
49244, *4 (E.D.N.Y. May 6, 1988).
Furthermore, even if the defendant were found to be a
state actor, Denes' claim is grounded in medical malpractice.
Negligence by physicians, even amounting to malpractice,
does not become a constitutional violation merely because the
plaintiff is an inmate; claims of malpractice or disagreement
with treatment are not actionable under § 1983. Murphy v.
Grabo, No. 94-CV-1684 1998 WL 166840 (N.D.N.Y., Apr 9,
1998) (Pooler, D.J.).
*3 Since plaintiff's complaint, as presented to this Court,
fails to state a claim upon which relief may be granted, it must
therefore be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
and Rule 5.4(a) of the Local Rules of Practice of this District.
WHEREFORE, it is hereby
ORDERED, that leave to commence this action in forma
pauperis is denied as incomplete as plaintiff has not submitted
an inmate authorization indicating his consent to the filing fee
which is currently $250.00, and it is further
ORDERED, that this action is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the Local Rules of
Practice of this District, and it is further
ORDERED, that the Clerk serve a copy this Order on Denes
by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2005 WL 2033489
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 23 of 35

Reyes v. New York Presbyterian Hospital, Not Reported in Fed. Supp. (2020)
2020 WL 6161261
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 6161261
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court, E.D. New York.
Maria Esther REYES, Plaintiff,
v.
NEW YORK PRESBYTERIAN HOSPITAL;
Dr. Manmee K. Malik MD; Dr. Jerry Chang;
and Dr. Akkamma Ravi MD, Defendants.
20-cv-3046 (KAM)(ST)
|
Signed 10/21/2020
Attorneys and Law Firms
Maria Esther Reyes, Jamaica, NY, pro se.
MEMORANDUM & ORDER
MATSUMOTO, United States District Judge:
*1 Pro se plaintiff Maria Esther Reyes filed this in
forma pauperis action under this court's diversity jurisdiction
seeking damages against defendants for medical malpractice.
Plaintiff's request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 is granted. The action is dismissed for lack of
subject matter jurisdiction with leave to replead as set forth
below.
BACKGROUND
According to the complaint, the truth of which is assumed for
the purposes of this Memorandum and Order, Plaintiff seeks
damages for the alleged medical malpractice of the defendant
doctors and New York Presbyterian Hospital in the 2017-2018
treatment of her breast cancer. (ECF No. 1, Complaint.)
STANDARD OF REVIEW
Under 28 U.S. C. § 1915(e)(2)(B), a district court shall
dismiss an in forma pauperis action where it is satisfied that
the action “(i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.”
To avoid dismissal, a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim
will be considered plausible on its face “when the plaintiff
pleads factual content that allows the court to draw reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A court must construe a pro se litigant's pleadings liberally,
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009), and a pro se complaint
should not be dismissed without granting the plaintiff leave to
amend “at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.”
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d
Cir. 1999) (internal quotation marks and citations omitted).
Nevertheless, “a pro se plaintiff must still comply with the
relevant rules of procedural and substantive law, including
establishing that the court has subject matter jurisdiction over
the action.” Wilber v. U.S. Postal Serv., No. 10-CV-3346
(ARR), 2010 WL 3036754, at *1 (E.D.N.Y. Aug. 2, 2010)
(internal quotation marks and citations omitted).
DISCUSSION
A plaintiff seeking to bring a lawsuit in federal court must
establish that the court has subject matter jurisdiction over
the action. “[F]ailure 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, 700-701 (2d Cir. 2000);
see also Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428, 434 (2011) (“[F]ederal courts have an independent
obligation to ensure that they do not exceed the scope of
their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or
elect not to press.”). Federal subject matter jurisdiction is
available only when a “federal question” is presented, 28
U.S.C. § 1331, or when the plaintiff and defendant are of
diverse citizenship and the amount in controversy exceeds
$75,000.00. 28 U.S.C. § 1332. The party asserting jurisdiction
bears the burden of proof. DiTolla v. Doral Dental IPA of N.Y.,
469 F.3d 271, 275 (2d Cir. 2006); White v. Abney, No. 17-
CV-4286 (MKB), 2019 WL 1298452, at *2 (E.D.N.Y. Mar.
21, 2019) (the party seeking to assert diversity jurisdiction
under 28 U.S.C. § 1332 bears the burden of demonstrating
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Reyes v. New York Presbyterian Hospital, Not Reported in Fed. Supp. (2020)
2020 WL 6161261
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
that the grounds for diversity exist “by a preponderance of the
evidence”) (citations omitted).
*2 According to the complaint, the basis for subject matter
jurisdiction is diversity of the parties. (Compl. 4.) It is
axiomatic that, for diversity jurisdiction to be available, all
of the adverse parties in a suit must be completely diverse
with regard to citizenship. See E.R. Squibb & Sons, Inc. v.
Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir. 1998);
France v. Thermo Funding Co., LLC, No. 13 Civ. 712(SAS),
2013 WL 5996148, at *2 (S.D.N.Y. Nov. 12, 2013) (“Federal
jurisdiction may not be asserted on the basis of diversity
unless ‘the citizenship of each plaintiff is diverse from the
citizenship of each defendant.’ ”) (quoting Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996)). Plaintiff is a resident of New
York. Although plaintiff has not provided any information
about the citizenship of the defendants (Compl. 4), she
provides New York mailing addresses for all four of the
defendants. (Id. 2-3.) Because plaintiff does not allege that the
parties are diverse, the court lacks diversity jurisdiction over
plaintiff's claims.
The court has considered whether it may exercise its federal
question jurisdiction over the claims in this complaint and
finds that it cannot. Plaintiff's potential claims for negligence
and medical malpractice arise under state law, not federal
law. See, e.g., Obunugafor v. Borchert, 01-CV-3125, 2001
WL 1255929, at *2 (S.D.N.Y. Oct. 19, 2001) (holding that
plaintiff's claims for medical neglect and failure to diagnose
amounted to a claim of negligence or malpractice under
state law and did not raise a federal question). Plaintiff
has not alleged that her medical care was covered under
any federal program or provision that would confer subject
matter jurisdiction over this action. Even allowing the pro se
complaint a liberal reading, there is a total absence of facts
suggesting the existence of a “colorable federal claim.” See
Chestnut v. Wells Fargo Bank, N.A., No. 1 l-CV-5369, 2012
WL 601785, at *3 (E.D.N.Y. Feb. 22, 2012).
CONCLUSION
For the foregoing reasons, the complaint filed in forma
pauperis is dismissed without prejudice for lack of subject
matter jurisdiction. Fed. R. Civ. P. 12(h)(3). However,
in light of plaintiff's pro se status, the plaintiff shall be
afforded thirty days leave to file an Amended Complaint.
The Amended Complaint shall be submitted to the Court
within thirty days of the date of this Order. The Amended
Complaint shall completely replace, not supplement, the
original complaint. No summons shall issue at this time and
all further proceedings are stayed for thirty days for Plaintiff
to comply with this Order. If the plaintiff fails to comply with
this Order within the time allowed, an order and judgment
dismissing this action without prejudice shall enter.
Once submitted, the Amended Complaint will be reviewed
for compliance with this Order and for sufficiency under Fed.
R. Civ. P. 8, 12 and 28 U.S.C. § 1915(e)(2)(B). 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 purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 6161261
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 25 of 35

Panchitkhaew v. Long Island Jewish Medical Center, Not Reported in Fed. Supp. (2019)
2019 WL 1492780
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 1492780
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Vimon PANCHITKHAEW, Plaintiff,
v.
LONG ISLAND JEWISH MEDICAL
CENTER, Dr. Dev Kamdar, Dr. Armen
Kasabien, Dr. Frank G. Douglas, Defendants.
18-CV-4434(JFB)(AKT)
|
Signed 04/04/2019
Attorneys and Law Firms
Vimon Panchitkhaew, Levittown, NY, pro se.
ORDER
Joseph F. Bianco, United States District Judge
*1 On August 6, 2018, pro se plaintiff Vimon Panchitkhaew
(“plaintiff”) filed an in forma pauperis complaint against
Long Island Jewish Medical Center (the “Medical Center”),
Dr. Dev Kamdar (“Dr. Kamdar”), Dr. Armen Kasabian (“Dr.
Kasabian”), and Dr. Frank G. Douglas (“Dr. Douglas” and
collectively, “defendants”). (ECF No. 1.) Accompanying the
complaint is an application to proceed in forma pauperis.
(ECF No. 2.) For the reasons that follow, plaintiff's
application to proceed in forma pauperis is granted, and
the complaint is dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(h)(3).
DISCUSSION
I. The Complaint
Plaintiff's brief complaint is submitted on the Court's general
complaint form. Although plaintiff checked the box to allege
that this Court's federal question subject matter jurisdiction
is invoked, in the space on the form complaint that calls for
the federal constitutional provision or federal statute that is
at issue, plaintiff alleges “28:1131, 28:1332, NYS: other tort
(negligence).” (Compl. ¶ II. A.) Plaintiff also alleges that she,
and each of the defendants, are citizens of New York State (id.
¶ 2. B. 1-2), and that the amount in controversy is 40 million
dollars. (Id. ¶ 2.B.3.)
Plaintiff, a self-described fifty-eight-year-old
“underrepresented minority from Thailand,” alleges that she
“has been living her life miserably, painfully, and [has]
endless health issues” due to the “medical negligence” of
the defendants. (Id. at 7-8.) According to the complaint,
plaintiff had “extensive surgery” at the Medical Center to treat
“buccal squamous cell carcinoma invading the mandible,”
but she then “developed squamous cell carcinoma on the
left side of her mouth.” (Id. at 8-9.) Plaintiff alleges that
she was “admitted to the operating room” for “resection,”
but instead, defendants “performed a partial maxillectomy
that unnecessarily went all the way to the retromolar trigone,
and significant soft tissues.” (Id. at 9.) Plaintiff claims that,
“[a]s a result of this improvised, unplanned surgery, [she]
permanently suffocated an ‘[o]ral [i]ncompetence.’ ” (Id.)
As a result, plaintiff alleges claims of “negligence - medical
malpractice.” (Id. at 11.)
II. Application to Proceed In Forma Pauperis
Upon review of plaintiff's declaration in support of her
application to proceed in forma pauperis, the Court
determines that plaintiff's financial status qualifies her to
commence this action without prepayment of the filing fees.
See 28 U.S.C. § 1915(a)(1). Therefore, plaintiff's request to
proceed in forma pauperis is granted.
III. Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to dismiss
an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-
(iii). The Court is required to dismiss the action as soon as it
makes such a determination. See id.
*2 It is axiomatic that pro se complaints are held to less
stringent standards than pleadings drafted by attorneys, and
the Court is required to read the plaintiff's pro se complaint
liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976) ); Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010); and to construe
it “ ‘to raise the strongest arguments’ ” suggested. Chavis,
618 F.3d at 170 (quoting Harris v. City of N.Y., 607 F.3d
18, 24 (2d Cir. 2010) ). Moreover, at the pleadings stage of
the proceeding, the Court must assume the truth of “all well-
pleaded, nonconclusory factual allegations” in the complaint.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d
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Panchitkhaew v. Long Island Jewish Medical Center, Not Reported in Fed. Supp. (2019)
2019 WL 1492780
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Cir. 2010), aff'd 569 U.S. 108 (2013) (citing Ashcroft v. Iqbal,
556 U.S. 662 (2009) ).
However, a complaint must plead sufficient facts to “state
a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 679 (citations omitted). The plausibility standard
requires “more than a sheer possibility that defendant
has acted unlawfully.” Id. at 678. While “detailed factual
allegations” are not required, “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’ ” Id. (quoting Twombly,
550 U.S. at 555). Plaintiff's factual allegations must also be
sufficient to give the defendant “fair notice of what the ...
claim is and the grounds upon which it rests,” Twombly, 550
U.S. at 555 (internal quotation marks and citation omitted),
and must show that the court has subject matter jurisdiction,
see Fed. R. Civ. P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999).
A. Legal Standard for Subject Matter Jurisdiction
As a threshold matter, the Court must determine whether it
has subject matter jurisdiction to adjudicate plaintiff's claims.
“Federal courts must determine that they have jurisdiction
before proceeding to the merits.” Lance v. Coffman, 549
U.S. 437, 439 (2007). Notwithstanding the liberal pleading
standard afforded pro se litigants, federal courts are courts of
limited jurisdiction and may not preside over cases if they lack
subject matter jurisdiction. Lyndonville Sav. Bank & Tr. Co. v.
Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). Lack of subject
matter jurisdiction cannot be waived, and may be raised at
any time by a party or by the Court sua sponte. Id. If subject
matter jurisdiction is lacking, the action must be dismissed.
Fed. R. Civ. P. 12(h)(3); Lyndonville Sav. Bank & Tr. Co., 211
F.3d at 700-01.
The basic statutory grants of subject matter jurisdiction are
set forth in 28 U.S.C. §§ 1331 and 1332. Arbaugh v. Y & H
Corp., 546 U.S. 500, 513 (2006). Section 1331 provides that
federal district courts “shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. Section 1332 provides
that federal district court subject matter jurisdiction may be
established where there is a diversity of citizenship between
the parties, and the amount in controversy exceeds the sum
of $75,000. 28 U.S.C. § 1332. Although courts hold pro se
complaints “to less stringent standards than formal pleadings
drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980),
pro se litigants must establish subject matter jurisdiction,
see, e.g., Rene v. Citibank N.A., 32 F. Supp. 2d 539, 541-42
(E.D.N.Y. 1999).
B. Subject Matter Jurisdiction Analysis
*3 Applying the rules regarding federal district court subject
matter jurisdiction to this case, it is clear that this Court
lacks subject matter jurisdiction to adjudicate plaintiff's
claims. Although plaintiff seeks to invoke this Court's federal
question jurisdiction, she does not allege, or even mention,
any federal law, treaty, or constitutional provision in her
complaint other than the subject matter jurisdiction statutes.
Even construing the pro se complaint liberally, the Court
cannot discern a non-frivolous federal claim such that this
Court's federal question subject matter jurisdiction pursuant
to 28 U.S.C. § 1331 may be invoked. Rather, plaintiff alleges
that she seeks to pursue state law tort claims of negligence
and medical malpractice. See Perpetual Sec., Inc. v. Tang, 290
F.3d 132, 137 (2d Cir. 2002) (“When deciding whether federal
question jurisdiction exists, we must proceed prudently and
make pragmatic distinctions between those allegations, if any,
that raise substantial questions and those that do not.” (citing
Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S.
1, 26 (1983) ) ).
Further, diversity subject matter jurisdiction is not established
pursuant to 28 U.S.C. § 1332, because plaintiff alleges that all
of the parties to the case are citizens of New York. Because
diversity of citizenship is lacking, the requirements of 28
U.S.C. § 1332 are not met. In the absence of a basis to support
this Court's subject matter jurisdiction, plaintiff's complaint
must be dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii); Fed.
R. Civ P. 12 (h)(3). However, plaintiff's claims are dismissed
without prejudice and she may pursue any valid claims she
may have against the defendants in state court.
IV. Leave to Amend
In light of the pleading deficiencies set forth above, the
Court has considered whether plaintiff should be given an
opportunity to re-plead. Leave to amend should be freely
granted when justice so requires. Fed. R. Civ. P. 15(a)(2).
“This relaxed standard applies with particular force to pro
se litigants.” Pangburn v. Culbertson, 200 F.3d 65, 70 (2d
Cir. 1999). The Second Circuit has emphasized that a “court
should not dismiss [a pro se complaint] without granting leave
to amend at least once when a liberal reading of the complaint
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Panchitkhaew v. Long Island Jewish Medical Center, Not Reported in Fed. Supp. (2019)
2019 WL 1492780
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gives any indication that a valid claim might be stated.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citations
and internal quotation marks omitted); see also Chavis, 618
F.3d at 170. Nevertheless, “[l]eave to amend, though liberally
granted, may properly be denied for: ‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.’ ” Ruotolo v. City of
N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962) ); see also Burch v. Pioneer
Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008).
Here, the lack of subject matter jurisdiction cannot be
remedied by amendment. Accordingly, the Court declines to
grant plaintiff leave to file an amended complaint.
CONCLUSION
For the reasons set forth above, plaintiff's application to
proceed in forma pauperis is granted, and her complaint is
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)
(2)(B) (ii) and Federal Rule of Civil Procedure 12(h)(3). The
Clerk of the Court is directed to close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good faith
and therefore, in forma pauperis status is denied for the
purpose of any appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 1492780
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 28 of 35

Fisher v. Glens Falls Hospital, Slip Copy (2025)
2025 WL 2324128
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2324128
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Curtis Dijon FISHER, Plaintiff,
v.
GLENS FALLS HOSPITAL, Glens
Falls Hospital CEO/President, and Glens
Falls Police Department, Defendants.
1:25-CV-831 (AJB/DJS)
|
Signed July 15, 2025
Attorneys and Law Firms
CURTIS DIJON FISHER, Plaintiff, Pro Se, 21085, Warren
County Correctional Facility, 1400 State Route 9, Lake
George, New York 12845.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has forwarded for review what has been
docketed as a civil complaint filed by Plaintiff. Dkt. No. 1,
Compl. Plaintiff has not paid the filing fee, but has submitted
an application to proceed in forma pauperis (“IFP”), Dkt. No.
2, which the Court has granted.
I. FACTUAL ALLEGATIONS
The Complaint is brought pursuant to 42 U.S.C. § 1983,
alleging violation of Plaintiff's constitutional rights. Compl.
at p. 3. Specifically, Plaintiff alleges violation of his rights
under the First, Fourth, Sixth, Eighth, Tenth, and Fourteenth
Amendments. Id. at p. 6. He also appears to be asserting a
state law claim for medical malpractice. Id. at p. 2.
Plaintiff alleges that in July 2023 he suffered gunshot wounds.
Id. at p. 6. Instead of immediately providing medical care, the
Complaint alleges that detectives with the Glens Falls Police
Department improperly questioned him about the incident for
hours. Id. Plaintiff claims that he suffered injury at Glens
Falls Hospital when his wound was merely stitched without
removing bullet fragments. Id. at pp. 1 & 6. He claims he had
to seek relief at another hosiptal at a later date for follow-up
treatment. Id. at p. 6.
II. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to
proceed in forma pauperis, “(2) ... the court shall dismiss
the case at any time if the court determines that – ... (B)
the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). 1 Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it
is the court's responsibility to determine whether the plaintiff
may properly maintain the complaint that he filed in this
District before the court may permit the plaintiff to proceed
with this action in forma pauperis. See id.
1 To determine whether an action is frivolous, a court
must look to see whether the complaint “lacks an
arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
Likewise, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of
a governmental entity” and must “identify cognizable claims
or dismiss the complaint, or any portion of the complaint,
if the complaint ... is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or ... seeks monetary
relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A
are available to evaluate pro se prisoner complaints).
In reviewing a pro se complaint, the court has a duty to show
liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted). Therefore, a
court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its
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Fisher v. Glens Falls Hospital, Slip Copy (2025)
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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
*2 Although a court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is entitled
to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).
B. Analysis of the Complaint
1. Section 1983
Upon review, all of Plaintiff's section 1983 claims should be
dismissed.
First, claims against the Glens Falls Police Department should
be dismissed. “A city police department is not an independent,
suable entity separate from the municipality in which the
police department is organized.” Krug v. Cty. of Rennselaer,
559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008). As a result, claims
against that entity must be dismissed.
Next, Section 1983 claims against Glens Falls Hospital and
its President should be dismissed based on the lack of state
action. “Because the United States Constitution regulates
only the Government, not private parties, a litigant claiming
that his constitutional rights have been violated must first
establish that the challenged conduct constitutes state action.”
Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178,
186 (2d Cir. 2005) (internal quotation marks omitted). “A
plaintiff pressing a claim of violation of his constitutional
rights under § 1983 is thus required to show state action.”
Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.
2003). “State action requires both the exercise of some right
or privilege created by the State and the involvement of a
person who may fairly be said to be a state actor.” Meadows v.
United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (quoting
Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d at 186)
(internal quotations and alterations omitted). Plaintiff has
failed to make any allegations establishing that either of these
Defendants are state actors.
“In general, a private hospital will not be considered a state
actor.” Rule v. Braiman, 2024 WL 4042135, at *13 (N.D.N.Y.
Sept. 4, 2024) (internal quotation omitted). While private
parties, such as the Hospital and its President generally are
not state actors, their conduct can be attributed to the state for
section 1983 purposes if “(1) the State compelled the conduct,
(2) there is a sufficiently close nexus between the State and
the private conduct, or (3) the private conduct consisted of
activity that has traditionally been the exclusive prerogative of
the State.” Hogan v. A.O. Fox Mem'l Hosp., 346 F. App'x 627,
629 (2d Cir. 2009). The activities of private hospitals and their
officers typically do not satisfy any of these tests. Id.; Rule v.
Braiman, 2024 WL 4042135, at *13. “[P]laintiff's complaint
contains no allegations that defendant Glens Falls Hospital is
a state actor. Since it is the duty of the plaintiff to allege state
action on the part of the defendant named in a complaint, a
court may dismiss an action under 28 U.S.C. § 1915(e) where
a plaintiff fails to plead such a nexus.” Denes v. Glens Falls
Hosp., 2005 WL 2033489, at *2 (N.D.N.Y. Aug. 17, 2005).
Accordingly, the Court recommends that the section 1983
claims asserted here be dismissed.
2. State Law Claims
*3 Liberally construed, the Complaint also asserts claims for
medical malpractice. That claim should also be dismissed at
this juncture based on a lack of subject matter jurisdiction.
“[A] medical malpractice claim is a state law claim that
is neither created by federal law nor necessarily depends
on the resolution of a substantial question of federal law.”
Gilmore for Gilmore v. Rensselaer Cnty. Med. Exam'r, 2022
WL 1985664, at *4 (N.D.N.Y. June 3, 2022), report and
recommendation adopted, 2022 WL 2827514 (N.D.N.Y. July
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Fisher v. Glens Falls Hospital, Slip Copy (2025)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
20, 2022) (internal quotations omitted). Thus, this Court has
jurisdiction only if there is diversity of citizenship.
“Diversity jurisdiction exists where the parties are citizens
of different states and the amount in controversy exceeds
$75,000.” Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 455
(W.D.N.Y. 2011). “A case falls within the federal district
court's original diversity jurisdiction only if diversity of
citizenship among the parties is complete, i.e., only if there
is no plaintiff and no defendant who are citizens of the same
State.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381,
388 (1998) (internal quotations omitted). Complete diversity
is required – meaning if any Defendant is a resident of the
same state as the Plaintiff, diversity jurisdiction does not exist.
Seemann v. Maxwell, 178 F.R.D. 23, 24 (N.D.N.Y. 1998).
The Complaint specifically alleges that both Plaintiff and
Defendants are residents of New York. Compl. at pp. 4-5. As a
result, there is also no diversity jurisdiction in this case and no
independent jurisdictional basis for entertaining these claims.
A district court may decline to exercise supplemental
jurisdiction over state law claims when it “has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). Generally, “when the federal-law claims have
dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline the
exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988). Having recommended dismissal
of the federal claims over which the Court has original
jurisdiction, the Court also recommends that the District
Court decline to exercise its supplemental jurisdiction over
any state law claims Plaintiff may be asserting.
3. Leave to Amend
“[A] court should not dismiss a complaint filed by a pro se
litigant without granting leave to amend at least once ‘when
a liberal reading of the complaint gives any indication that a
valid claim might be stated.’ ” Bruce v. Tompkins Cty. Dep't of
Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y.
Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991)). Accordingly, the Court recommends that the
Complaint be dismissed, but that Plaintiff be afforded an
opportunity to amend.
The Court advises Plaintiff that should he be permitted to
amend his Complaint, any amended pleading he submits
must comply with Rules 8 and 10 of the Federal Rules
of Civil Procedure. Any such amended complaint, which
shall supersede and replace in its entirety the previous
Complaint filed by Plaintiff, must contain sequentially
numbered paragraphs containing only one act of
misconduct per paragraph. Thus, if Plaintiff claims that
his civil and/or constitutional rights were violated by more
than one defendant, or on more than one occasion, he should
include a corresponding number of paragraphs in his amended
complaint for each such allegation, with each paragraph
specifying (i) the alleged act of misconduct; (ii) the date,
including the year, on which such misconduct occurred; (iii)
the names of each and every individual who participated in
such misconduct; (iv) where appropriate, the location where
the alleged misconduct occurred; and, (v) the nexus between
such misconduct and Plaintiff's civil and/or constitutional
rights.
*4 Plaintiff is further cautioned that no portion of his prior
Complaint shall be incorporated into his amended complaint
by reference. Any amended complaint submitted by Plaintiff
must set forth all of the claims he intends to assert against the
defendants and must demonstrate that a case or controversy
exists between the Plaintiff and the defendants which Plaintiff
has a legal right to pursue and over which this Court has
jurisdiction. If Plaintiff is alleging that the named defendant
violated a law, he should specifically refer to such law.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be
DISMISSED with leave to amend; and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 2 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
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Fisher v. Glens Falls Hospital, Slip Copy (2025)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
2 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the order was
mailed to you to serve and file objections. FED. R.
CIV. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday.
FED. R. CIV. P. 6(a)(1)(C).
All Citations
Slip Copy, 2025 WL 2324128
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 32 of 35

Fisher v. Glens Falls Hospital, Slip Copy (2025)
2025 WL 2323523
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2323523
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Curtis Dijon FISHER, Plaintiff,
v.
GLENS FALLS HOSPITAL et al., Defendants.
1:25-CV-831 (AJB/DJS)
|
Signed August 12, 2025
Attorneys and Law Firms
CURTIS DIJON FISHER, Plaintiff, Pro Se, 21085, Warren
County Correctional Facility, 1400 State Route 9, Lake
George, NY 12845.
ORDER ON REPORT & RECOMMENDATION
Anthony Brindisi, United States District Judge:
*1 On June 26, 2025, pro se plaintiff Curtis Dijon Fisher
(“plaintiff”), who is currently being detained in the Warren
County Correctional Facility, filed this 42 U.S.C. § 1983
action alleging that defendants violated his civil rights. Dkt.
No. 1. Along with his complaint, plaintiff moved for leave to
proceed in forma pauperis (“IFP Application”). Dkt. No. 2, 3.
On July 15, 2025, U.S. Magistrate Judge Daniel J. Stewart
granted plaintiff's IFP Application, Dkt. No. 4, and conducted
an initial review of plaintiff's pleading. Based on this initial
review, Judge Stewart advised by Report & Recommendation
(“R&R”) that plaintiff's complaint be dismissed with leave to
amend. Dkt. No. 5.
Plaintiff has not lodged objections to the R&R. The time
period in which to do so has expired. However, plaintiff has
submitted a First Amended Complaint in accordance with
the R&R. Dkt. No. 6. Upon review for clear error, the R&R
will be accepted and adopted, see FED. R. CIV. P. 72(b), and
plaintiff's First Amended Complaint will be referred to Judge
Stewart for further action as appropriate.
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 5) is
ACCEPTED; and
2. Plaintiff's complaint (Dkt. No. 1) is DISMISSED with leave
to amend; and
3. Plaintiff's First Amended Complaint (Dkt. No. 6) is
REFERRED to Judge Stewart.
The Clerk of the Court is directed to terminate the pending
motion and refer the First Amended Complaint (Dkt. No. 6)
to the assigned Magistrate Judge for further action.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2323523
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 33 of 35

Cole v. Smrtic, Slip Copy (2025)
2025 WL 247901
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 247901
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, Interim Montgomery
County Judge; Tatiana N. Coffinger, County/Family/
Surrogate's Court Judge; Honorable Felix Catena,
Retired Administrative Law Judge; and Samuel V.
Maxwell, Esq., Assistant District Attorney, Defendants.
1:24-CV-847 (MAD/PJE)
|
Signed January 21, 2025
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Plaintiff commenced this action on May 6, 2024,
asserting that Defendants violated his due process and speedy
trial rights, and that he received ineffective assistance of
counsel in an underlying state criminal action. See Dkt. No. 1.
In a Report-Recommendation and Order dated November 21,
2024, Magistrate Judge Hummel granted Plaintiff's request
to proceed in forma pauperis and conducted an initial
review of the complaint. See Dkt. No. 8. In the Report-
Recommendation and Order, Magistrate Judge Hummel
concluded that, in addition to the complaint being subject
to dismissal for failure to comply with Rule 8 of the
Federal Rules of Civil Procedure, Plaintiff's due process,
speedy trial, and ineffective assistance of counsel claims
are barred by Heck v. Humphrey, 512 U.S. 477 (1994),
because Plaintiff's underlying state court conviction has
not been reversed on direct appeal or otherwise expunged.
See id. at 8-10. Moreover, the Report-Recommendation
and Order recommended dismissal of the claims against
Defendants Smrtic, Coffinger, and Catena since they are
barred by absolute judicial immunity. See id. at 10-12.
To the extent Plaintiff is attempting to assert a claim
against the Appellate Division, Third Department, Magistrate
Judge Hummel found that the claim is barred by Eleventh
Amendment immunity because the Appellate Division “
‘is merely an agency or arm of New York State.” Id. at
12-13 (quotation omitted). Finally, Magistrate Judge Hummel
recommended that the claims against Defendant Maxwell be
dismissed because he is protected by prosecutorial immunity.
See id. at 13-14. Plaintiff has not objected to the Report-
Recommendation and Order.
When a party files specific objections to a magistrate judge's
report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). However, when a party
files “[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge,” the court reviews those recommendations
for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322,
2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations
and footnote omitted). After the appropriate review, “the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
In the present matter, the Court finds that Magistrate Judge
Hummel correctly determined that Plaintiff's complaint must
be dismissed. Plaintiff's complaint makes clear that his claims
stem from alleged violations of his rights that occurred during
an underlying state criminal case. See Dkt. No. 1 at 3-4;
Dkt. No. 7 at 4. Since Plaintiff's criminal conviction has not
been reversed, expunged by executive order, or called into
question by a federal court's issuance of a writ of habeas
corpus, Plaintiff's claims brought pursuant to Section 1983 are
barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Strong
v. Watson, No. 1:22-cv-552, 2023 WL 8439445, *14-15
(W.D.N.Y. Sept. 26, 2023) (dismissing the plaintiff's claims
of malicious prosecution, conspiracy, speedy trial violations,
denial of due process, and denial of equal protection under
Heck because the claims “all seek to impugn the validity of
his underlying state court criminal charges”).
*2 Magistrate Judge Hummel also correctly determined
that, in the alternative, the claims against the named
Defendants are subject to dismissal based on absolute
judicial and prosecutorial immunity. The allegations against
Defendants Smrtic, Coffinger, and Catena make clear that
these individuals were acting in their judicial capacities
and that their actions were not taken in the absence of
jurisdiction. Accordingly, they are entitled to absolute judicial
immunity. See Ceparano v. Southampton Just. Ct., 404 Fed.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 34 of 35

Cole v. Smrtic, Slip Copy (2025)
2025 WL 247901
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Appx. 537, 539 (2d Cir. 2011). As to Defendant Maxwell,
Plaintiff has alleged that he withheld exculpatory evidence
in the underlying criminal matter. Since this conduct clearly
involves “prosecutorial activities ‘intimately associated with
the judicial phase of the criminal process,’ ” Defendant
Maxwell is entitled to absolute prosecutorial immunity. See
Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Additionally,
to the extent Plaintiff has attempted to assert claims against
the Appellate Division, Third Department, the claims must be
dismissed because the Third Department is an arm of New
York State and is entitled to Eleventh Amendment immunity.
See Benyi v. New York, No. 3:20-cv-1463, 2021 WL 1406649,
*5 (N.D.N.Y. Mar. 23, 2021) (citation omitted).
Finally, the Court agrees with Magistrate Judge Hummel that,
because it is clear that the issues with Plaintiff's complaint
are substantive and not something that can be corrected by
better pleading, Plaintiff will not be afforded an opportunity
to amend his complaint. See Phillips v. New York, No. 5:13-
cv-927, 2013 WL 5703629, *5 (N.D.N.Y. Oct. 17, 2013)
(quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's November 21,
2024, Report-Recommendation and Order (Dkt. No. 8) is
ADOPTED in its entirety for the reasons set forth herein;
and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is
DISMISSED without leave to amend; and the Court further
ORDERS that Plaintiff's motion for permission to file
electronically (Dkt. No. 4) and motion to appoint counsel
(Dkt. No. 5) are DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendants’ favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 247901
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01587-AJB-CBF Document 5 Filed 01/23/26 Page 35 of 35