Kurtz v. The State of New York et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________ ________________
Thomas Kurtz
Plaintiff,
3:25-CV-1710
v. 	(ECC/MJK)
The State of New York, et al.
Defendants.
__________________________________________________________
Thomas Kurtz, Plaintiff, pro se
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Elizabeth C. Coombe, U.S. District Judge
ORDER and REPORT-RECOMMENDATION
Kurtz commenced this action on September 19, 2025, by filing a
Complaint. (Dkt. 1). On December 9, 2025, U.S. District Judge
Elizabeth C. Coombe administratively closed the case because Kurtz did
not pay the filing fee. (Dkt. 4). On January 8, 2026, Kurtz filed a motion
for leave to proceed in forma pauperis (“IFP Application”) (Dkt. 5). That
same day, Judge Coombe directed the Clerk to reopen the case. (Dkt. 6).
The Clerk has sent the Complaint and Kurtz’s IFP Application to the
Court for review.
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I. 	IFP Application
Kurtz declares in his IFP Application that he is unable to pay the
filing fee. (Dkt. 5). After reviewing Kurtz’s IFP Application, this Court
finds that he is financially eligible for IFP status.
In addition to determining whether a plaintiff meets the financial
criteria to proceed IFP, the court must also consider the sufficiency of
the allegations set forth in the complaint. See 28 U.S.C. § 1915
(e)(2)(B)(i)-(iii). Courts shall dismiss a case, at any time, if they
determine that the action is (i) frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. Id.
When determining whether an action is frivolous, a court must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuses of court process and discourage the waste of judicial resources.
See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge, 505 F.2d 802,
804 (8th Cir. 1974). Courts have a duty to show liberality toward pro se
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litigants and must use extreme caution when ordering sua sponte
dismissal of a pro se complaint before the adverse party has been served
and has had an opportunity to respond. See Fitzgerald v. First E.
Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). But courts
must still determine that a claim is not frivolous before permitting a
plaintiff to proceed. See id. (finding that a district court may dismiss a
frivolous complaint sua sponte even when the plaintiff has paid the
filing fee).
To survive dismissal for failure to state a claim, a complaint must
contain sufficient factual matter, accepted as true, to state a claim that
is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,
550 U.S. at 555).
The Court will now consider the sufficiency of Kurtz’s Complaint,
under the above standards.
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II. 	FACTS
Kurtz alleges that Defendants have conspired not “to provide
[him] with his police report and state why the Defendants have not
provided [him] with requested reports.” (Dkt. 1, Compl., pg. 5). He
alleges that the Defendants have failed to comply with New York’s
Freedom of Information Law (FOIL).
Kurtz seeks declaratory, injunctive and monetary relief. (Dkt. 1,
Compl., pg. 6).
III. 	DISCUSSION
A. The District Court lacks subject matter jurisdiction over
Kurtz’s claims
This Court recommends that the District Court dismiss Kurtz’s
Complaint without prejudice and without leave to amend for lack of
subject matter jurisdiction.
Kurtz’s Complaint challenges the denial of a FOIL request over
which this Court lacks subject matter jurisdiction. See Jackson v.
Wilcox, No. 1:23-CV-0130 (MAD/CFH), 2023 WL 2756489, at *5
(N.D.N.Y. Apr. 3, 2023) (“As courts have repeatedly held that federal
courts lack jurisdiction to review FOIL claims, this Court lacks
jurisdiction to review [defendant’s] alleged denial of plaintiff’s FOIL
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request. Thus, it is recommended that the complaint be dismissed
without prejudice for lack of subject matter jurisdiction.”), report and
recommendation adopted, 2023 WL 4230351 (N.D.N.Y. June 28, 2023)
(explaining, “the Court lacks subject matter jurisdiction over the
complaint as federal courts do not have jurisdiction over claims related
to FOIL request denials.”) (citations omitted). “New York law provides a
remedy for the improper denial of a FOIL request. A person denied
access to requested documents may appeal the denial to the head, chief
executive or governing body of the entity or agency in possession of the
documents . . . . The person must then challenge the denial of the FOIL
request on appeal by commencing a proceeding under Article 78 of the
New York Civil Practice Law and Rules.” Syfert v. City of Rome, No.
6:19-CV-0775 (GTS/ML), 2020 WL 7053542, at *3 n.2 (N.D.N.Y. Dec. 2,
2020) (internal quotations and citations omitted).
Because the Court lacks subject matter jurisdiction over Kurtz’s
claim(s), it is recommended that the District Court dismiss the
Complaint without prejudice and without leave to amend.
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B. Defendants are immune from suit
Even if the District Court finds that it has jurisdiction over
Kurtz’s claims, it is nevertheless recommended that the Complaint be
dismissed with prejudice and without leave to amend against the State
of New York and the Town Court of Newark Valley.
Plausibly construed, the Complaint alleges claims against the
State of New York State and the Town Court of Newark Valley. The
State of New York because is immune from suit under the Eleventh
Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100, (1984) (Eleventh Amendment bars suit against a state or state
agencies absent the state’s consent).
The Complaint should also be dismissed against the Newark
Valley Town Court because it also enjoys Eleventh Amendment
protection. See Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009)
(“[T]he New York State Unified Court System is unquestionably an ‘arm
of the State,’ and is entitled to Eleventh Amendment sovereign
immunity.”); see also Lee v. Town of Wawayanda, No. 23-CV-7064, 2024
WL 6046840, at *9 (S.D.N.Y. Aug. 27, 2024) (“The Wawayanda Town
Court is part of the New York State Unified Court System.”); Yevstifeev
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v. Steve, 860 F. Supp. 2d 217, 224 (W.D.N.Y. 2012) (“[T]he Town Court
is entitled to Eleventh Amendment immunity”).
C. Fed. R. Civ. P. 10
Although not listed in the caption to this action, the Complaint
refers to the State of New York Unified Court System, “Hon. Judge
Shaffer”, and the County of Tioga “F.O.I.L. Officer.” Fed. R. Civ. P. 10
provides that, “the title of the complaint must name all the parties.”
Fed. R. Civ. P. 10(a). A party not named in the caption of the complaint
is not a party to the action. See Abbas v. U.S., No. 10-CV-0141, 2014 WL
3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (holding that the failure to
name the individual defendants against whom the plaintiff intends to
assert claims makes it “infeasible for the Court to determine which of
the individual officers mentioned in the body of the complaint should be
deemed to be defendants to which claims”).
Although complaints violative of Fed. R. Civ. P. 10 are dismissed
without prejudice and with leave to amend, the Court is recommending
dismissal with prejudice and without leave to amend because the State
of New York Unified Court System and the “Hon. Judge Shaffer” are
immune from suit while the County of Tioga “F.O.I.L. Officer” is not
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subject to the jurisdiction of this Court because the Court lacks subject
matter jurisdiction over Kurtz’s claim in the first instance.
The New York State Unified Court System is immune from suit
under the Eleventh Amendment. See Gollomp v. Spitzer, 568 F.3d 355,
368 (2d Cir. 2009) (“[T]he New York State Unified Court System is
unquestionably an ‘arm of the State,’ and is entitled to Eleventh
Amendment sovereign immunity
The Court also recommends dismissing the Complaint as to Judge
Shaffer because Kurtz seeks to sue a judicial officer acting within their
official capacity. Judges have absolute immunity for their judicial acts
performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9,
11 (1991); see also Shtrauch v. Dowd, 651 F. App’x 72, 73-74 (2d Cir.
2016) (summary order) (“Generally, acts arising out of, or related to,
individual cases before the judge are considered judicial in nature”)
(cleaned up). “Judicial immunity applies even when the judge is accused
of acting maliciously or corruptly.” Coon v. Merola, No. 19-CV-394
(DNH/ATB), 2019 WL 1981416, at *3 (N.D.N.Y. Apr. 8, 2019) (cleaned
up). ‘“The only two circumstances in which judicial immunity does not
apply is when’” the judge ‘“takes action outside”’ their ‘“judicial
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capacity”’ or ‘“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). Here, Kurtz sues Judge Shaffer because of some alleged
failure to respond to protect Kurtz and his property. (Compl., ¶ 7).
As to the County of Tioga “F.O.I.L. Officer,” they cannot be sued in
the District Court because the Court lacks subject matter jurisdiction
over Kurt’z FOIL claim in the first instance.
Because the State of New York Unified Court System and the
“Hon. Judge Shaffer” are immune from suit coupled with the fact that ,
the County of Tioga “F.O.I.L. Officer” is not subject to the jurisdiction of
this Court, it is recommended that the District Court dismiss the
Complaint with prejudice and without leave to amend.
D. Fed. R. Civ. P. 8
Even if the District Court declines to dismiss the Complaint for
lack of subject matter jurisdiction, determines that the named
Defendants are not immune from suit, and that Fed. R. Civ. P. 10 has
not been traversed, it is recommended that the Complaint be dismissed
without prejudice and with leave to amend because it violates Fed. R.
Civ. P. 8.
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Fed. R. Civ. P. 8(a)(2) requires a pleading to contain, inter alia, “a
short and plain statement of the claim showing that the pleader is
entitled to relief …” “The purpose of [Rule 8] is to give fair notice of the
claim being asserted so as to permit the adverse party the opportunity
to file a responsive answer, prepare an adequate defense and determine
whether the doctrine of res judicata is applicable.” Flores v. Graphtex,
189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotations and citations
omitted). Rule 8 also requires the pleading to include “a short and plain
statement of the grounds for the court’s jurisdiction” and “a demand for
the relief sought[.]” Fed. R. Civ. P. 8(a)(1), (3). “Although ‘no technical
form is required,’ the Federal Rules make clear that each allegation
contained in the pleading ‘must be simple, concise, and direct.’” Cole v.
Smrtic, No. 1:24-CV-847, 2024 WL 4870495 (MAD/CFH), at *2
(N.D.N.Y. 2024) (quoting Fed. R. Civ. P. 8(d)). Accordingly, allegations
“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). Although Rule 8 does not
require detailed factual allegations, it does “demand[] more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston
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v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2
(N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556 U.S. at 678).
Here, Kurtz alleges that “[t]his action arises under and is brought
pursuant to 42 U.S.C. § 1985 of conspiracy to cause harm and failure to
protect Plaintiff and his property …” (Compl., ¶ 7). Kurtz also “requests
a remedy to the deprivation of rights guaranteed by the Eighth and
Fourteenth Amendment, to the United States Constitution.” (Id.).
Finally, Kurtz alleges that “Defendants are committing non-compliance
to 5 U.S.C. 552 and Public Officers Law under Article 6 Freedom of
Information Act.” (Compl., ¶ 10). However, the Complaint is completely
bereft of any allegations to support Kurtz’s claims. In fact, the
Complaint is devoid of any facts at all. As pleaded, the Complaint is
mothing more than “the-defendant-unlawfully-harmed-me accusation.”
Houston, 2016 WL 6267968, at *2.
If the District Court declines to dismiss the Complaint for lack of
subject matter jurisdiction and determines that the named Defendants
are not immune from suit, the Court recommends that the District
Court dismiss the Complaint without prejudice and with leave to
amend.
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IV. 	OPPORTUNITY TO AMEND
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
Here, the Court recommends that: (1) the Complaint be dismissed
without prejudice and without leave to amend for lack of subject matter
jurisdiction; (2) if the District Court finds that it does have subject
matter jurisdiction over Kurtz’s claims, the Complaint should still be
dismissed with prejudice and without leave to amend because the
Defendants are immune from suit under the Eleventh Amendment and
any amendment would be futile; (3) if the District Court finds that it
does have subject matter jurisdiction over Kurtz’s claims and that
Defendants are not immune from liability, that the Complaint
nevertheless be dismissed with prejudice and without leave to amend
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under Fed. R. Civ. P. 10 as to the State of New York Unified Court
System, “Hon. Judge Shaffer”, and the County of Tioga “F.O.I.L.
Officer” because any amendment would be futile; and (4) even if the
District Court declines to dismiss the Complaint for lack of subject
matter jurisdiction and determines that the named Defendants are not
immune from suit, it is recommended that the Complaint be dismissed
without prejudice and with leave to amend because it violates Fed. R.
Civ. P. 8.
WHEREFORE, based on the findings above, it is hereby
ORDERED, that Kurtz’s application to proceed in forma pauperis
(Dkt. 5) is GRANTED, and it is further
RECOMMENDED that the Complaint be DISMISSED
WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND for
lack of subject matter jurisdiction because any amendment would be
futile, and it is further
RECOMMENDED, that if the District Court finds that it does
have subject matter jurisdiction over Kurtz’s claims, that the Complaint
still be DISMISSED WITH PREJUDICE AND WITHOUT LEAVE
TO AMEND because the named Defendants are immune from suit
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under the Eleventh Amendment and any amendment would be futile,
and it is further
RECOMMENDED, that if the District Court finds that it does
have subject matter jurisdiction over Kurtz’s claims and that
Defendants are not immune from liability, that the Complaint
nevertheless be DISMISSED WITH PREJUDICE AND WITHOUT
LEAVE TO AMEND under Fed. R. Civ. P. 10 as to the State of New
York Unified Court System, “Hon. Judge Shaffer”, and the County of
Tioga “F.O.I.L. Officer” because any amendment would be futile and it
is further
RECOMMENDED, that if the District Court declines to dismiss
the Complaint for lack of subject matter jurisdiction and determines
that the named Defendants are not immune from suit, the Complaint be
dismissed without prejudice and with leave to amend because it violates
Fed. R. Civ. P. 8., and it is further
ORDERED, that the Clerk provide Kurtz with a copy of this
Order and Report-Recommendation, along with copies of the
unpublished decisions cited herein in accordance with the Second
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Circuit decision in 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.1
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.
Dated: March 26, 2026.
1 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).
_____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Jackson v. Wilcox, Not Reported in Fed. Supp. (2023)
2023 WL 2756489
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 2756489
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Raymond L. JACKSON, Plaintiff,
v.
Lt. Col. Scott A. WILCOX, Defendant.
No. 1:23-CV-130 (MAD/CFH)
|
Signed April 3, 2023
Attorneys and Law Firms
Raymond L. Jackson, 15-A-3740, Fishkill Correctional
Facility, P.O. Box 1245, Beacon, New York 12508, Plaintiff
pro se.
REPORT-RECOMMENDATION AND ORDER
Christian F. Hummel, United States Magistrate Judge
I. Background
*1 Plaintiff pro se Raymond L. Jackson (“plaintiff”)
purported to commence this action on January 30, 2023,
by filing a complaint. See Dkt. No. 1 (“Compl.”). Plaintiff
did not pay the filing fee for his complaint or submit a
motion to proceed in forma pauperis (“IFP”), and the Court
administratively closed the action. See Dkt. No. 4. The Court
ordered plaintiff to either pay the full $402.00 filing fee or to
submit a complete IFP application. See id. Plaintiff then filed
an IFP application. See Dkt. No. 6. The Court reopened, but
then again closed, the case for failure to submit a complete
and certified application. See Dkt. Nos. 7, 8. On March 13,
2023, plaintiff filed a complete IFP application. See Dkt. Nos.
9, 10. The undersigned has reviewed plaintiff's IFP motion
and determines that he financially qualifies to proceed IFP for
the purpose of filing. 1
1 Plaintiff is advised that although he has been
granted IFP status, he is still required to pay any
fees and costs he may incur in this action.
II. Initial Review
A. Legal Standard
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). 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 [or her] 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) (citation and internal quotation marks
omitted). This does not mean the Court is required to accept
unsupported allegations that are devoid of sufficient facts
or claims. Although detailed allegations are not required at
the pleading stage, the complaint must still include enough
facts to provide the defendants with notice of the claims
against them and the grounds on which these claims are
based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Pro se
litigants are “not exempt ... from compliance with relevant
rules of procedural and substantive law[.]” Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983) (citation omitted). Ultimately,
the plaintiff must plead “enough facts to state a claim to relief
that is 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.” Iqbal,
556 U.S. at 678 (citation omitted).
Pleading guidelines are set forth in the Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”). Specifically, Rule 8 provides
that a pleading which sets forth a claim for relief shall
contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)
(2). “The purpose ... is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to
file a responsive answer, prepare an adequate defense and
determine whether the doctrine of res judicata is applicable.”
Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999)
(internal quotation marks and citations omitted). Rule 8 also
requires the pleading to include “a short and plain statement of
the grounds for the court's jurisdiction” and “a demand for the
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Jackson v. Wilcox, Not Reported in Fed. Supp. (2023)
2023 WL 2756489
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
relief sought....” FED. R. CIV. P. 8(a)(1), (3). 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)(1).
*2 Further, Rule 10 provides in pertinent part that:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
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 55
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too [ ] heavy [a] burden in terms of defendants’ duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). The
Second Circuit has held that “[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) (citation 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. (citation omitted). If
dismissal is warranted and the plaintiff is pro se, the court
generally affords the plaintiff leave to amend the complaint.
See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
B. Plaintiff's Complaint
Plaintiff seeks to bring this action against Lieutenant Colonel
Scott A. Wilcox, a New York State Trooper, for purported
statutory violations and violations of his constitutional rights
pursuant to 42 U.S.C. § 1983. See generally Compl.
Plaintiff alleges that he filed a request under New York's
Freedom of Information Law (“FOIL”) to the New York State
Police headquarters in Albany, New York, for “information in
regards to three (3) criminal sale's in plaintiff's criminal case.”
Compl. at 2. In a letter dated December 19, 2016, Wilcox
“made available (2) JPEG images burned on CD/DVD, and
contact sheet for the criminal sales for a total of $75.00.”
Id. Plaintiff paid the requested amount and Wilcox sent a
follow-up letter on February 14, 2019, confirming receipt of
the money. See id. Plaintiff alleges that he did not receive
the documents he paid for. See id. Plaintiff subsequently filed
two Article 78 petitions which were unsuccessful. See id. The
first petition was dismissed “for failure to provide the A.G.
Office[ ]” and the second petition was denied “for procedural
process.” Id. They were denied on October 15, 2019, and
January 4, 2021, respectively. See id. Plaintiff alleges that
he appealed to the Appellate Division and both appeals were
dismissed. See id. at 2-3. The Court of Appeals then informed
plaintiff on February 23, 2022, that unless he “can show
motion to leave appeal, proof of service, timeliness of an
appeal, and a Notice of Entry from the 3rd Dep't etc. plaintiff
cannot appeal.” Id. at 3.
*3 Plaintiff contends that “[t]he Appellate Court failed to
hear the case on it[s] merits leaving [him] with nowhere else
to[ ] go.” Compl. at 3. Plaintiff asserts that the appellate
“process is fundamentally inadequate to protect plaintiff
substantive rights to a fair procedural due process protection.”
Id. Plaintiff “seeks injunction [sic] relief and declaratory
judgment [h]opefully to obtain the evidence.” Id. Plaintiff
asserts that Wilcox was acting under the color of state law
and violated a “statutory law”, plaintiff's “liberty interest of
life a U.S. Const. of a substantive right of a fair procedural
due process”, and his “substantive rights and procedural due
process right of equal protection of the U.S. Const. and N.Y.S.
Const.” Id. at 4. Plaintiff asks the Court to “compel NYSP
Agency to turn over the documents so that the plaintiff can
challenge his state conviction.” Id. at 5.
C. Additional Background
Plaintiff filed two Article 78 petitions both of which sought
to compel Wilcox to produce specific evidence in response
to plaintiff's FOIL request. See Jackson v. Wilcox, 136
N.Y.S.3d 696, 2, n.1 (Sup. Ct. 2021) (Table). Plaintiff's
first petition was dismissed on October 19, 2019, for lack
of jurisdiction. See id. at 2. His second was dismissed on
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Jackson v. Wilcox, Not Reported in Fed. Supp. (2023)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
January 4, 2021, because it was untimely filed. See id.
However, the Albany County Supreme Court analyzed the
merits of plaintiff's petition assuming that it was timely and
determined that “there is no merit to his Petition.” Id. at 3.
The court concluded that “[t]he record amply establishes that
the respondent provided the petitioner with all the information
it was required to provide[ ]” because plaintiff “admitted on
several occasions that he has been provided with the images
he sought, and made no attempt to differentiate between hard
copy photos, contact sheets, or CD/DVD.” Id. The court
stated that plaintiff's “argument that sought images might
be altered on the hard copy photos, but not on the CD/
DVD is nonsensical.” Id. Thus, the court concluded that
plaintiff “failed to demonstrate that the respondent has not
fully complied with his FOIL request, and his Petition must
also be denied on the merits.” Id.
On February 3, 2020, plaintiff filed a complaint in this Court
under 42 U.S.C. § 1983 seeking the exact same relief that he
presently seeks. See Jackson v. Wilcox, et al., 1:20-CV-110
(MAD/ATB), Dkt. No. 1 at 12. Following initial review of
the complaint pursuant to 28 U.S.C. § 1915A, the Court
dismissed plaintiff's complaint without prejudice for lack of
subject matter jurisdiction. See id., Dkt. Nos 7, 9. The Court
explained, “to the extent that [p]laintiff's claims are premised
on a violation of New York State FOIL, it is well settled
that such a claim, standing alone, is insufficient to support
a Section 1983 claim.” Jackson v. Wilcox, No. 1:20-CV-110
(MAD/ATB), 2020 WL 1899142, at *2 (N.D.N.Y. Apr. 17,
2020). 2
2 On December 13, 2019, plaintiff filed a habeas
corpus petition stating, among other things, that he
filed an Article 78 petition “hoping to receive a
tangible document of the CD jpeg disc, and contact
sheet to bolster a stronger argument and to show
the claims have merits.” Jackson v. Capra, 9:19-
CV-1542 (DNH/CFH), Dkt. No. 9 at 4-5. Plaintiff's
petition for a writ of habeas corpus is fully briefed
and pending the Court's review. See id., Dkt. No.
72.
On September 24, 2021, the Appellate Division, Third
Department, denied plaintiff motions to proceed as a poor
person and for FOIL relief, but granted his application for
time to perfect his appeal. See Raymond L. Jackson v. Lt.
Col. Scott A. Wilcox New York State Police, 2021 NY Slip
Op 72455 (App. Div. Sept. 24, 2021). On July 22, 2022, the
Appellate Division denied plaintiff's motion for an Article
78 petition. See Raymond L. Jackson v. Lt. Col. Scott A.
Wilcox New York State Police, 2022 NY Slip Op 69225 (App.
Div. July 22, 2022). Then, on December 8, 2022, the court
denied plaintiff's “[m]otion to vacate dismissal of appeal, for
extension of time to perfect appeal and for further relief.”
Raymond L. Jackson v. Lt. Col. Scott A. Wilcox, N.Y. State
Police, 2022 NY Slip Op 75394 (App. Div. Dec. 8, 2022). 3
3 New York State court decisions can be
searched through the following website: https://
nycourts.gov/reporter/Decisions.shtml.
D. Analysis
*4 The doctrine of res judicata bars an individual from
relitigating the same things if “(1) the previous action
involved an adjudication on the merits; (2) the previous action
involved the plaintiffs or those in privity with them; [and] (3)
the claims asserted in the subsequent action were, or could
have been, raised in the prior action.” Soules v. Connecticut,
Dep't of Emergency Servs. & Pub. Prot., 882 F.3d 52, 55 (2d
Cir. 2018) (quoting Monahan v. N.Y.C. Dep't of Corr., 214
F.3d 275, 285 (2d Cir. 2000)).
There is no question that prongs two and three are satisfied
here by plaintiff's previous § 1983 action: it involved the
same plaintiff and identical claims were raised. Compare
Compl. at 5, with Jackson, 2020 WL 1899142, at *1. 4
However, the 2020 action was dismissed without prejudice for
lack of subject matter jurisdiction and “[a] dismissal without
prejudice for lack of subject matter jurisdiction is not a
dismissal ‘on the merits’ for claim preclusion purposes.” Diaz
v. Judge Advoc. Gen. of the Navy, 413 F. App'x 342, 343 (2d
Cir. 2011) 5 (summary order) (citations omitted); St. Pierre v.
Dyer, 208 F.3d 394, 400 (2d Cir. 2000) (“[A] dismissal for
lack of subject matter jurisdiction is not an adjudication on the
merits and hence has no res judicata effect.”); Sinochem Int'l
Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)
(citation and quotation marks omitted) (“Without jurisdiction
the court cannot proceed at all in any cause; it may not assume
jurisdiction for the purpose of deciding the merits of the
case.”). As plaintiff's previous § 1983 action was dismissed
without prejudice for lack of subject matter jurisdiction, it
does not bar the Court from considering his present complaint.
4 Plaintiff named additional defendants, not only
Wilcox, in his 2020 complaint. See Jackson v.
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Wilcox, No. 1:20-CV-110 (MAD/ATB), 2020 WL
871180, at *2 (N.D.N.Y. Feb. 21, 2020), report
and recommendation adopted, 2020 WL 1899142
(N.D.N.Y. Apr. 17, 2020).
5 All unpublished opinions cited in this Report-
Recommendation and Order, unless otherwise
noted, have been provided to plaintiff. The
undersigned will not provide plaintiff copies of the
unpublished cases that are his, such as the state
court cases, the 2020 § 1983 action, or his writ for
a habeas corpus petition.
However, as was determined in his 2020 action, this Court
lacks jurisdiction to review the merits of plaintiff's present
complaint as it is based on the alleged denial of his FOIL
request. See Jackson, 2020 WL 1899142, at *2. This is
because “[i]t appears that federal district courts do not have
jurisdiction to consider FOIL claims.” Jeanty v. Utica Police
Dep't, No. 6:20-CV-00221 (BKS/TWD), 2021 WL 1055153,
at *4 (N.D.N.Y. Mar. 19, 2021) (collecting cases), appeal
dismissed, No. 21-1797, 2021 WL 5071864 (2d Cir. Aug.
26, 2021); see also Ataroua v. Tamir, No. 22-CV-10371
(LTS), 2022 WL 17822720, at *3 (S.D.N.Y. Dec. 19, 2022)
(“[The p]laintiff's allegations that, in 2021, [defendants] ...
did not respond to letters about his FOIL requests that were
directed to them personally, do not indicate that [the p]laintiff
can establish any right to relief that turns on resolution of
a question of federal law.”); Cammarata v. City Univ. of
N.Y., No. 17-CV-6456 (MKB), 2019 WL 3859401, at *9
(E.D.N.Y. Aug. 15, 2019) (citations omitted) (“Federal courts,
however, do ‘not have jurisdiction to enforce state laws
granting public access to official state records.’ ”); Youngs v.
Orange Cnty. Sheriffs Org., No. 22-CV-4918 (LTS), 2022 WL
4124796, at *3 (S.D.N.Y. Sept. 2, 2022) (“[The p]laintiff's
allegation that his FOIL request for video footage was denied
does not give rise to a constitutional claim, and thus the
facts alleged do not state a viable Section 1983 claim.”).
Rather, “[t]he appropriate vehicle for challenging denials of
access guaranteed by the New York Freedom of Information
Law is a state court proceeding pursuant to N.Y.C.P.L.R.
Article 78 upon exhaustion of administrative remedies.”
Ramos v. Culick, No. 6:16-CV-01312 (FJS/TWD), 2017 WL
835406, at *4 (N.D.N.Y. Feb. 9, 2017) (quoting Schuloff
v. Fields, 950 F. Supp. 66, 67-68 (E.D.N.Y. 1997)), report
and recommendation adopted, 2017 WL 823580 (N.D.N.Y.
Mar. 2, 2017); see also Posr v. City of New York, No. 10-
CV-2551, 2013 WL 2419142, at *14 (S.D.N.Y. June 4, 2013)
(finding that the court was “without jurisdiction to consider
[p]laintiff's FOIL-related claims” because the proper remedy
would be through “an administrative appeal or seek remedies
in state court”), aff'd sub nom., Posr v. Ueberbacher, 569 F.
App'x 32 (2d Cir. 2014) (summary order); Abreu v. Bascue,
No. 9:18-CV-0186 (MAD/ATB), 2018 WL 11466956, at *25
(N.D.N.Y. May 1, 2018) (“[A] violation of New York State
FOIL does not give rise to a federal claim under 42 U.S.C.
§ 1983. Rather, plaintiff's remedy for an alleged violation
of FOIL is to follow procedures set forth in state laws or
regulations.”).
*5 As courts have repeatedly held that federal courts
lack jurisdiction to review FOIL claims, this Court lacks
jurisdiction to review Wilcox’ alleged denial of plaintiff's
FOIL request. Thus, it is recommended that the complaint
be dismissed without prejudice for lack of subject matter
jurisdiction.
The undersigned notes, however, that even if plaintiff could
state a cognizable § 1983 claim from the alleged denial of
his FOIL request, review of the claim would likely be barred
by the statute of limitations. “Congress did not statutorily
create a limitations period for actions brought in federal court
under 42 U.S.C. § 1983[.]” Branch v. Guilderland Cent. Sch.
Dist., 239 F. Supp. 2d 242, 248 (N.D.N.Y. 2003). “[T]he
Supreme Court held ... that claims brought under § 1983 are
governed by the limitations period for personal injury suits
under the laws of state where the cause of action arose.” Id.
(citing Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994)).
“In New York, the statute of limitations for personal injury
actions, and thus claims under § 1983, is three years.” Id.
(citations omitted). “[W]hen that statute of limitations begins
to run, i.e., when the cause of action ‘accrues,’ is governed by
federal law.” Id. (citing Jaghory v. N.Y. State Dep't. of Educ.,
131 F.3d 326, 331 (2d Cir. 1997)). “Under federal law, the
accrual date for a § 1983 claim is when ‘the plaintiff knows
or has reason to know of the injury which is the basis of his
action.’ ” Id. (quoting Pinaud v. Cty. of Suffolk, 52 F.3d 1139,
1156 (2d Cir. 1995)).
Plaintiff alleges that Wilcox acknowledged the receipt of
plaintiff's payment but did not produce the specific evidence
in response his FOIL request on February 14, 2019. See
Compl. at 2. This means that plaintiff would have had until
January 14, 2022, to bring a § 1983 action alleging due
process and equal protection claims. He did not bring this
action until January 30, 2023. See generally Compl. Thus,
any possible constitutional claims that plaintiff could bring
would be time barred. This is the case even though he filed
Article 78 proceedings and appeals therefrom because such
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proceedings do not toll the statute of limitations for a § 1983
action. See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007)
(“[A] plaintiff's pursuit of a state remedy, such as an Article
78 proceeding, does not toll the statute of limitations for filing
a claim pursuant to section 1983.”).
Finally, even if the Court were to be able to consider the
merits of plaintiff's complaint, the complaint would likely be
dismissed for failure to state a claim. For a due process claim,
“[t]he threshold issue is always whether the plaintiff has a
property or liberty interest protected by the Constitution.”
Narumanchi v. Bd. of Trustees of Conn. State Univ., 850
F.2d 70, 72 (2d Cir. 1988). “If a protected interest is
identified, a court must then consider whether the government
deprived the plaintiff of that interest without due process.”
Id. “As several courts in th[is] Circuit have held, ‘a plaintiff
has no property interest in obtaining FOIL documents.’ ”
Lawrence v. Baxter, No. 03-CV-228S, 2004 WL 1941347,
at *3 (W.D.N.Y. Aug. 31, 2004) (collecting cases) (citations
omitted), aff'd, 139 F. App'x. 365 (2d Cir. 2005) (summary
order). “Specifically, because FOIL documents need only
be produced after a request and investigation by the state
entity, individuals making such request do not have anything
beyond a mere expectation in such documents, and, thus,
do not have an entitlement to requested documents that is
protected by the Fourteenth Amendment.” Simpson v. Town
of South Hampton, No. 06-CV-6743, 2007 WL 1755749, at
*4 (E.D.N.Y. 2007); see also Abreu, 2018 WL 11466956, at
*25 (“Multiple district courts in this circuit have held that a
plaintiff has no constitutionally protected interest in obtaining
FOIL documents.”).
*6 Further, “[t]he sufficiency of Article 78 proceedings to
satisfy due process requirements is well established.” Ramos,
2017 WL 835406, at *4 (citing, inter alia, Hellenic Am.
Neighborhood Action Comm., 101 F.3d 877, 880-81 (2d Cir.
1996) (“An Article 78 proceeding is adequate for due process
purposes even though the petitioner may not be able to
recover the same relief that he could in a § 1983 suit.”); Davis
v. Guarino, 52 F. App'x. 568, 569 (2d Cir. 2002) (summary
order) (denial of a plaintiff's FOIL request did not violate
due process because “an Article 78 proceeding is a perfectly
adequate post-deprivation remedy.”)). Thus, this Court has
concluded that a plaintiff failed to assert a § 1983 claim
for denial of a FOIL request because “the New York FOIL
procedures are sufficient to protect any property interest [the
p]laintiff may have in the receipt of FOIL documents.” Id.;
see also Lawrence v. Antonucci, No. 04-CV-356S, 2005 WL
643457, at *4 (W.D.N.Y. Mar. 16, 2005) (“[T]he procedures
set forth under New York law are sufficient to protect any
property interest that a person might have in the receipt of
FOIL documents.”), aff'd, 144 F. App'x 193 (2d Cir. 2005)
(summary order).
Here, plaintiff summarily states, “[t]he appeal process is
fundamentally inadequate to protect plaintiff[’s] substantive
rights to a fair procedural due process protection.” Compl.
at 3. However, he does not allege any facts indicating that
the process is inadequate; rather, he complains that the “[t]he
Appellate Court failed to hear the case on it[s] merits[.]” Id.
Plaintiff's disagreement with the state court decisions does
not establish a due process claim. See Torres v. City of New
York through New York City Dep't, 590 F. Supp. 3d 610,
618 (S.D.N.Y. 2022) (citation omitted) (“[F]or a procedural
due process claim, ‘the relevant inquiry is what process [the
plaintiff] received, not whether the state court decided the
case correctly.’ ”). Further, he has not asked for any relief
concerning the state court decisions and instead names only
Wilcox as a defendant and seeks relief from his denial of the
FOIL request. 6 See Compl. at 4-5. As plaintiff does not have
a property interest in the FOIL documents, the sufficiency
of Article 78 proceedings is well-established, and plaintiff
has not stated any facts indicating that the state appellate
procedures were inadequate, any possible due process claim
against Wilcox would fail as a matter of law.
6 Any potential challenge to the state court's Article
78 decision or appeals would likely be barred by the
Rooker-Feldman doctrine which prohibits a federal
court's review of a state court decision in which
the plaintiff lost. See Dorce v. City of New York, 2
F.4th 82, 101 (2d Cir. 2021) (citation and quotation
marks omitted) (“[O]ur court has articulated four
requirements that must be met for Rooker-Feldman
to apply: (1) the federal-court plaintiff must have
lost in state court[;]” (2) the plaintiff must complain
of injuries caused by a state-court judgment[;]” (3)
the plaintiff must invite district court review and
rejection of that judgment[;] and (4) the state-
court judgment must have been rendered before the
district court proceedings commenced.”).
To the extent plaintiff summarily mentions “equal
protection”, to state such a claim, plaintiff must plead
“adverse treatment of individuals compared with other
similarly situated individuals and that such selective treatment
was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of
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constitutional rights, or malicious or bad faith intent to injure
a person.” Compl. at 4; Terrill v. Windham-Ashland-Jewett
Cent. Sch. Dist., 176 F. Supp. 3d 101, 110 (N.D.N.Y. 2016)
(quoting Miner v. Clinton County, 541 F.3d 464, 474 (2d
Cir. 2008)). Plaintiff has not alleged any facts that could
be construed as stating an equal protection claim; thus, his
complaint would likely be dismissed for failure to state a
claim. See generally Compl. 7
7 The undersigned also notes that review of plaintiff's
complaint is likely barred by res judicata because
of the January 2021 Article 78 proceeding. “The
doctrine of claim preclusion ... holds that ‘a prior
decision dismissed ‘on the merits’ is binding in all
subsequent litigation between the same parties on
claims arising out of the same facts, even if based
upon different legal theories or seeking different
relief on issues which were or might have been
litigated in the prior action but were not.’ ” N.
Assur. Co. of Am. v. Square D Co., 201 F.3d
84, 87 (2d Cir. 2000) (citation omitted). “The
import of claim preclusion is that it operates in
two ways: (1) it bars claims that were brought and
decided in a prior litigation; and (2) it bars all other
claims relating to the same transaction against the
same defendant that could have been brought at
that time.” Id. “[G]enerally[,] res judicata ‘does
not operate to bar a § 1983 suit following the
resolution of an Article 78 proceeding, since the
full measure of relief available in the former
action is not available in the latter.’ ” D.B. v.
Sullivan, No. 1:22-CV-282 (MAD/CFH), 2023
WL 2456070, at *6 (N.D.N.Y. Mar. 9, 2023)
(quoting Colon v. Coughlin, 58 F.3d 865, 870
n.3 (2d Cir. 1995), abrogated on other grounds
by Tangreti v. Bachmann, 983 F.3d 609 (2d Cir.
2020)). However, plaintiff did not seek relief in his
Article 78 proceeding that was unavailable in that
proceeding, but available in a section 1983 action.
Rather, he sought identical relief in his Article
78 proceeding that he seeks here, and which was
available in the Article 78 proceeding: for Wilcox
to be compelled to produce specific evidence. See
Compl. at 5; see also Jackson, 136 N.Y.S.3d at
1-2; Vandor, Inc. v. Militello, 301 F.3d 37, 39 (2d
Cir. 2002) (per curiam) (“Article 78 is a form of
proceeding available to compel public officials to
comply with their responsibilities.”); N.Y.C.P.L.R.
§ 7806 (“The judgment may grant the petitioner
the relief to which he is entitled, ... and may direct
or prohibit specified action by the respondent.”).
As the Albany County Supreme Court ruled on the
merits of plaintiff's petition in the January 2021
Article 78 proceeding, it is likely that his complaint
is barred by res judicata. See Jackson, 136 N.Y.S.3d
at 2; see also D.B., 2023 WL 2456070, at *6
(explaining that in Kern v. Joyce, 857 F. App'x 691,
694 (2d Cir. 2021) (summary order), the Second
Circuit determined that “the plaintiff's Section 1983
claims were barred by res judicata applied to a
prior Article 78 proceeding because the plaintiff did
not seek damages in federal court, but simply the
same relief of vacating an ALJ's determination.”).
However, the undersigned does not make a more
definitive conclusion because it is not clear whether
plaintiff raised his constitutional challenges in the
Article 78 proceeding and whether the court treated
his petition as a hybrid petition. See D.B., 2023
WL 2456070, at *6 (explaining that res judicata
may apply when the Article 78 proceeding was a
“hybrid” proceeding which concerns relief that is
and is not available in an Article 78 proceeding).
*7 In sum, it is recommended that plaintiff's complaint
be dismissed without prejudice for lack of subject matter
jurisdiction. Generally, “[a] pro se complaint should not be
dismissed without the Court granting leave to amend at least
once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation omitted).
“However, if the problems with a complaint are ‘substantive’
rather than the result of an ‘inadequately or inartfully
pleaded’ complaint, an opportunity to re-plead would be
‘futile’ and ‘should be denied.’ ” Edwards v. Penix, 388 F.
Supp. 3d 135, 144-45 (N.D.N.Y. 2019) (quoting Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). As the problem
with plaintiff's complaint is substantive—the Court lacks
subjective matter jurisdiction—amendment would be futile.
See Ramos, 2017 WL 835406, at *4 (dismissing complaint
alleging improper denial of FOIL request without prejudice
but without leave to amend); see also Kirschenbaum v. Fed.
Ins. Co., 505 B.R. 126, 131 (E.D.N.Y. 2014) (citation omitted)
(“An amendment is considered futile if, for example, it
could not defeat a motion to dismiss for failure to state a
claim or for lack of subject matter jurisdiction.”); Johnson
v. Oneida Nation Enters., LLC, No. 5:19-CV-853 (MAD/
ATB), 2019 WL 5091952, at *2 (N.D.N.Y. Oct. 11, 2019)
(“[A]mendment would be futile as [the p]laintiff has not
alleged any claims which would give the Court subject
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matter jurisdiction.”). Thus, it is recommended that plaintiff's
complaint be dismissed without prejudice, but without leave
to amend.
III. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's application to proceed in forma
pauperis (Dkt. No. 9) is GRANTED for purposes of filing
only; and it is further
RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be
DISMISSED WITHOUT PREJUDICE AND WITHOUT
LEAVE TO AMEND; and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order in accordance with Local
Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a). 8
8 If you are proceeding pro se and are served with
this Report-Recommendation & Order by mail,
three (3) additional days will be added to the
fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
Recommendation & Order was mailed to you to
serve and file objections. FED R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(c).
All Citations
Not Reported in Fed. Supp., 2023 WL 2756489
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Jackson v. Wilcox
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:23-CV-00130
Jackson v. Wilcox
— N.D.N.Y. Jan. 30, 2023 Docket
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Jackson v. Wilcox
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History (2)
Direct History (2)
1. Jackson v. Wilcox
2023 WL 2756489 , N.D.N.Y. , Apr. 03, 2023
Report and Recommendation Adopted by
2. Jackson v. Wilcox
2023 WL 4230351 , N.D.N.Y. , June 28, 2023
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Jackson v. Wilcox
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Jackson v. Wilcox, Not Reported in Fed. Supp. (2023)
2023 WL 4230351
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4230351
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Raymond L. JACKSON, Plaintiff,
v.
Lt. Col. Scott A. WILCOX,
NYSP/State Trooper, Defendant.
1:23-CV-130 (MAD/CFH)
|
Signed June 28, 2023
Attorneys and Law Firms
RAYMOND L. JACKSON, 15-A-3740, Fishkill Correctional
Facility, P.O. Box 1245, Beacon, New York 12508, Plaintiff,
Pro Se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 On January 30, 2023, 1 Plaintiff Raymond L. Jackson
(“Plaintiff”) filed a complaint with a jury demand. See Dkt.
No. 1. On February 16, 2023, and again on March 13,
2023, Plaintiff filed a motion to proceed in forma pauperis
(“IFP”). See Dkt. Nos. 6, 9. On April 3, 2023, Magistrate
Judge Christian F. Hummel issued a Report-Recommendation
and Order granting Plaintiff's request to proceed IFP and
recommending the complaint be dismissed without prejudice
and without leave to amend. See Dkt. No. 12. On April 24,
2023, Plaintiff filed an untimely objection. See Dkt. No. 13;
Dkt. No. 12 (instructing Plaintiff to file within seventeen days
of the sending of the Report-Recommendation and Order).
1 On January 31, 2023, and February 27, 2023,
Magistrate Judge Hummel entered orders directing
administrative closure. See Dkt. Nos. 4, 8. The
case was reopened on February 16, 2023, and most
recently on March 13, 2023. See Dkt. Nos. 7, 11.
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has held that the court is obligated to
“ ‘make reasonable allowances to protect pro se litigants’ ”
from inadvertently forfeiting legal rights merely because they
lack a legal education. Govan, 289 F. Supp. 2d at 295 (quoting
Taguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). However, as
Plaintiff appears IFP, “the court shall dismiss the case at any
time if the court determines ... the action ... (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)
(i)-(iii).
When a party files specific objections to a magistrate judge's
report-recommendation, the district court makes a “de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1). When a party declines to
file objections to a magistrate judge's report-recommendation
or files “[g]eneral or conclusory objections or objections
which merely recite the same arguments [presented] to
the magistrate judge,” the district court reviews those
recommendations for clear error. O'Diah v. Mawhir, No. 9:08-
CV-322, 2011 WL 933846, at *1 (N.D.N.Y. Mar. 16, 2011)
(citations and footnote omitted); see also McAllan v. Von
Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). After the
appropriate review, “the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1). Plaintiff
failed to file a timely objection. However, even reviewing
the subjects of the objections de novo, the Court adopts
Magistrate Judge Hummel's findings in their entirety.
First, Plaintiff argues that Magistrate Judge Hummel utilized
the wrong portion of Jeanty v. Utica Police Dep't in its
analysis, and that the Court should exercise supplemental
jurisdiction over this complaint as “the argument ... arises
out of the same controversy” of his pending habeas corpus
petition. Dkt. No. 13 at 1; see Jeanty v. Utica Police
Dep't, No. 6:20-CV-00221, 2021 WL 1055153, *4 (N.D.N.Y.
Mar. 19, 2021). Magistrate Judge Hummel correctly quoted
Jeanty’s finding “that federal district courts do not have
jurisdiction to consider FOIL claims.” Jeanty, 2021 WL
1055153, at *4. However, Plaintiff argues that Magistrate
Judge Hummel utilized the wrong or inapplicable finding
in Jeanty and should have instead applied the decision's
section discussing supplemental jurisdiction. See Dkt. No. 13
at 1-2. The Jeanty court declined to exercise supplemental
jurisdiction over the FOIL claims as the state claims and
federal claims were unrelated. Jeanty, 2021 WL 1055153, at
*4 (quoting Sovereign Bank, N.A. v. Lee, 968 F. Supp. 2d 515,
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Jackson v. Wilcox, Not Reported in Fed. Supp. (2023)
2023 WL 4230351
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
518 (E.D.N.Y. 2013)) (“While the supplemental jurisdiction
statute allows a district court to exercise jurisdiction over
claims that are ‘so related’ that they ‘form part of the same
case or controversy,’ 28 U.S.C. § 1367, that statute cannot
form the basis for removal”). Here, too, the state law claims
for FOIL denials and the federal claim for habeas relief are
not connected by a “common nucleus of operative fact.” See
Jeanty, 2021 WL 1055153, at *4 (quoting Young v. New York
City Transit Auth., 903 F.2d 146, 164 (2d Cir. 1990)). As such,
the Court declines to exercise supplemental jurisdiction.
*2 Next, Plaintiff seems to argue that Magistrate Judge
Hummel incorrectly found that his Article 78 petition was
time barred, as Plaintiff claims it is nonsensical that the lower
court found the petition was time-barred but still reviewed it
in the alternative on the merits. See Dkt. No. 13 at 2. However,
this was a recitation of the background of the complaint, rather
than a finding by Magistrate Judge Hummel. As such, this
“objection” is not pertinent to the matter at hand. Magistrate
Judge Hummel recommended the complaint be dismissed
for lack of federal subject matter jurisdiction over § 1983
cases relating to FOIL claims and for failure to state equal
protection or due process claims. See Dkt. No. 12 at 6. As
such, this is not an objection that the Court need address.
Magistrate Judge Hummel correctly determined that the
Court lacks subject matter jurisdiction over the complaint as
federal courts do not have jurisdiction over claims related to
FOIL request denials. See McTerrell v. Koenigsmann, No. 18-
CV-1028, 2021 WL 1298488, *1 (W.D.N.Y. Apr. 7, 2021)
(quoting Jeanty, 2021 WL 1055153, at *4); see also Rios v.
Mantellino, No. 16-CV-726, 2016 WL 927181, *2 (E.D.N.Y.
Mar. 4, 2016) (“FOIL claims which are not resolved by the
state or city agency must be brought in the New York State
Supreme Court pursuant to Article 78 of the New York Civil
Practice Law and Rules”).
Even if Plaintiff had a cognizable claim for the FOIL request,
such claim would likely be barred by the statute of limitations.
See Dkt. No. 12 at 10. For § 1983 actions, “courts apply the
statute of limitations for personal injury actions under state
law,” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013),
which is three years in New York State. See Pearl v. City of
Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). Plaintiff filed his
claim nearly four years after the alleged injury, see Dkt. No.
1 at 2, and thus the claim is time-barred. Plaintiff's Article 78
petitions did not toll the statute of limitations. See Brown v.
Bullis, No. 9:11-CV-647, 2013 WL 1294488, at *3 (N.D.N.Y.
Mar. 26, 2013) (citing Abbas v. Dixon, 480 F.3d 636, 641 (2d
Cir. 1997)).
Magistrate Judge Hummel correctly found that there is no due
process claim for the process of obtaining FOIL documents
because Plaintiff lacks a property or liberty interest in the
documents. See Sharp v. Inc. Vill. of Farmingdale, No. 16-
CV-2994, 2017 WL 9485681, *14 (E.D.N.Y. Aug. 21, 2017)
(quoting Simpson v. Town of Southampton, No. 06-CV-6743,
2007 WL 1755749, *4 (E.D.N.Y. June 15, 2007)). Further,
an Article 78 proceeding for FOIL claims is adequate for due
process purposes. See Blount v. Brown, No. 10-CV-01548,
2010 WL 1945858, at *2 (E.D.N.Y. May 11, 2010) (“[T]he
procedures set forth under New York law are sufficient to
protect any property interest that a person might have in the
receipt of FOIL documents”).
To the extent Plaintiff sought to allege an equal protection
claim, Plaintiff failed to do so as Plaintiff did not plead that
he, “ ‘compared with others similarly situated, was selectively
treated, and (2) the selective treatment was motivated by
an intention to discriminate on the basis of impermissible
considerations, such as race ... to punish or inhibit the exercise
of constitutional rights, or by a malicious or bad faith intent
to injure the person[.]’ ” Knighton v. City of Syracuse Fire
Dep't, 145 F. Supp. 2d 217, 222–23 (N.D.N.Y. 2001) (quoting
Laverpool v. New York City Transit Auth., 835 F. Supp. 1440,
1459 (E.D.N.Y. 1993) (quotation marks omitted)).
For pro se plaintiffs appearing IFP,
[a]lthough the language of § 1915 is mandatory, stating
that “the court shall dismiss the case” in the enumerated
circumstances, we conclude that a pro se plaintiff who
is proceeding in forma pauperis should be afforded the
same opportunity as a pro se fee-paid plaintiff to amend
his complaint prior to its dismissal for failure to state a
claim, unless the court can rule out any possibility, however
unlikely it might be, that an amended complaint would
succeed in stating a claim.
*3 Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d
Cir. 1999). “[M]otions to amend should be granted freely in
the interests of justice, [and] a pro se complaint generally
should not be dismissed without granting the plaintiff leave
to amend at least once.” Id.; see also Romano v. Lisson, 711
Fed. Appx. 17, 19 (2d Cir. 2017). As Plaintiff cannot cure the
Court's lack of subject matter jurisdiction, the complaint is
dismissed without leave to amend.
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Jackson v. Wilcox, Not Reported in Fed. Supp. (2023)
2023 WL 4230351
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
After carefully reviewing the Report-Recommendation and
Order, the entire record in this matter, and the applicable law,
the Court hereby
ORDERS that the Report-Recommendation and Order (Dkt.
No. 12) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is
DISMISSED without leave to amend; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendant's favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of
this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4230351
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 28 of 84

Jackson v. Wilcox
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:23-CV-00130
Jackson v. Wilcox
— N.D.N.Y. Jan. 30, 2023 Docket
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 29 of 84

Jackson v. Wilcox
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Jackson v. Wilcox
2023 WL 2756489 , N.D.N.Y. , Apr. 03, 2023
Report and Recommendation Adopted by
2. Jackson v. Wilcox
2023 WL 4230351 , N.D.N.Y. , June 28, 2023
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 30 of 84

Jackson v. Wilcox
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 31 of 84

Syfert v. City of Rome, Not Reported in Fed. Supp. (2020)
2020 WL 7053542
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 7053542
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Mark SYFERT, Plaintiff,
v.
CITY OF ROME, Defendant.
6:19-CV-0775 (GTS/ML)
|
Signed 12/02/2020
Attorneys and Law Firms
MARK SYFERT, Pro Se Plaintiff, 422 West Embargo Street
#2, Rome, New York 13440.
OF COUNSEL: GERARD F. FEENEY, ESQ., OFFICE
OF THE CORPORATION COUNSEL, Counsel for the
Defendant, 198 North Washington Street, Rome City Hall,
Rome, New York 13440.
DECISION and ORDER
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Currently before the Court in this pro se civil rights action
filed by Mark Syfert (“Plaintiff”) against the City of Rome
(“Defendant”) are Plaintiff's (1) motion for appointment of
counsel (Dkt. No. 24), (2) motion for joinder of parties (Dkt.
No. 26), (3) motion to file a second amended complaint (Dkt.
No. 27), (4) notice (Dkt. No. 28), and (5) jurisdiction motion
or venue motion (Dkt. No. 29). For the reasons discussed
below, Plaintiff's (1) motion for appointment of counsel (Dkt.
No. 24) is denied without prejudice, (2) motion for joinder of
parties (Dkt. No. 26) is stricken from the docket, (3) motion
to file a second amended complaint (Dkt. No. 27) is denied
without prejudice, (4) notice (Dkt. No. 28) is stricken from
the docket, and (5) jurisdiction motion or venue motion (Dkt.
No. 29) is stricken from the docket.
I. MOTION FOR APPOINTMENT OF COUNSEL
It is well-settled that there is no right to appointment of
counsel in civil matters. Burgos v. Hopkins, 14 F.3d 787, 789
(2d Cir. 1994). Title 28 of United States Code Section 1915
specifically provides that a court may request an attorney
to represent any person “unable to afford counsel.” 28
U.S.C. § 1915(e)(1). Appointment of counsel must be done
carefully in order to preserve the “precious commodity” of
volunteer lawyers for those litigants who truly need a lawyer's
assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73
(2d Cir. 1989). Courts cannot utilize a bright-line test in
determining whether counsel should be appointed on behalf
of an indigent party. Hendricks v. Coughlin, 114 F.3d 390,
392-93 (2d Cir. 1997). Instead, a number of factors must
be carefully considered by the court in ruling upon such a
motion:
[The Court] should first determine
whether the indigent's position seems
likely to be of substance. If the claim
meets this threshold requirement,
the court should then consider the
indigent's ability to investigate the
crucial facts, whether conflicting
evidence implicating the need for
cross-examination will be the major
proof presented to the fact finder, the
indigent's ability to present the case,
the complexity of the legal issues and
any special reason in th[e] case why
appointment of counsel would be more
likely to lead to a just determination.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341
(2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d
58, 61-62 (2d Cir. 1986)). This is not to say that all, or
indeed any, of these factors are controlling in a particular
case. Rather, each case must be decided on its own facts.
Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995)
(McAvoy, C.J.) (citing Hodge, 802 F.2d at 61). The Court
must consider the issue of appointment carefully because
“every assignment of a volunteer lawyer to an undeserving
client deprives society of a volunteer lawyer available for a
deserving cause.” Cooper, 877 F.2d at 172.
Plaintiff is a frequent litigator in this district (Dkt. No. 4 at
1-6) and has demonstrated that he is capable of presenting his
case. Terminate Control Corp.,28 F.3d at 1341. This case does
not involve complex legal issues and there is no indication
that Plaintiff is unable to investigate the facts alleged. Id.
Moreover, Plaintiff has not identified any special reason why
the appointment of counsel at this stage would be more likely
to lead to a just determination. Id. As a result, Plaintiff's
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Syfert v. City of Rome, Not Reported in Fed. Supp. (2020)
2020 WL 7053542
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
motion for appointment of counsel (Dkt. No. 24) is denied
without prejudice.
II. MOTION FOR JOINDER OF PARTIES
*2 Plaintiff's filed an “Application [for] Joinder of
Parties.” (Dkt. No. 26.) Plaintiff's motion lists the names of
several individuals and states, inter alia, “The Calling to be
a Plumber. Just like the calling to be a judge. A successful
individual.” (Dkt. No. 26, at 2 [emphasis in original].) It is
unclear what relief, if any, Plaintiff is requesting and what the
grounds are for that relief.
In addition, Plaintiff's motion does not comply with Local
Rule 7.1(a), which requires that all motions include a
memorandum of law, supporting affidavit, and proof of
service on all the parties. Moreover, any motion for joinder
“must attach an unsigned copy of the proposed amended
pleading to [his] motion papers.” N.D.N.Y. L.R. 7.1(a)(4). As
a result, the Clerk of the Court is directed to strike Plaintiff's
motion for joinder of parties (Dkt. No. 26), and it will not be
considered by the Court.
III. MOTION TO FILE A SECOND AMENDED
COMPLAINT
A motion to amend is evaluated under Federal Rule of Civil
Procedure 15(a), which provides that “[t]he court should
freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2); see also Parker v. Columbia Pictures Indus.,
204 F.3d 326, 339 (2d Cir. 2000). “[T]o the extent that [a
plaintiff] raises a legitimate claim, the policy considerations
that undergird the Federal Rules counsel in favor of affording
litigants an opportunity to resolve their claims on the merits.”
Fershtadt v. Verizon Commc'ns Inc., 262 F.R.D. 336, 338
(S.D.N.Y. 2009) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)).
District courts have broad discretion in ruling on a motion
for leave to amend. See, e.g., McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 200 (2d Cir. 2007). A court may deny
leave “for good reason, including futility, bad faith, undue
delay, or undue prejudice to the opposing party.” McCarthy,
482 F.3d at 200. “Mere delay,” however, “is not, of itself,
sufficient to justify denial of a Rule 15(a) motion.” Parker,
204 F.3d at 339.
A movant seeking to amend a pleading “must attach an
unsigned copy of the proposed amended pleading to [his]
motion papers.... The motion must set forth specifically the
proposed insertions and deletions of language and identify
the amendments in the proposed pleading, either through
the submission of a redline/strikeout version of the pleading
sought to be amended or through other equivalent means.”
N.D.N.Y. L.R. 7.1(a)(4).
Plaintiff's “Application [for] Amendment of Pleading,” much
like his Complaint (Dkt. No. 1) and Amended Complaint
(Dkt. No. 9) includes incomplete sentences that present a
mélange of thoughts that are meandering and indecipherable.
(Dkt. No. 27.) Moreover, Plaintiff's application does not
include a redline/strikeout (or other equivalent) version of
the pleading sought to be amended, which identifies the
amendments to the proposed pleading, as required by Local
Rule 7.1(a)(4). 1 As a result, Plaintiff's motion to file a second
amended complaint is denied without prejudice.
1 The Court notes that Plaintiff's application also
purports to include his mandatory disclosures.
(Dkt. No. 27 at 6-32.) Pursuant to Local Rule 26.2,
“[p]arties shall not file ... disclosures ... unless
the Court orders otherwise.” The Court has not
ordered otherwise, and Plaintiff's inclusion of these
materials with his application is improper and in
violation of Local Rule 26.2.
IV. NOTICE
*3 Plaintiff filed a document that was docketed as
a “Notice.” The Notice states “Defendant can not stop
Plaintiff's F.O.I.L.s Eric Seelig is stopping them.” (Dkt. No.
28 at 1.) As with Plaintiff's motion for joinder of parties (Dkt.
No. 26), it is unclear what relief, if any, Plaintiff is requesting
and what the grounds are for that relief. As a result, the Clerk
of the Court is directed to strike Plaintiff's Notice (Dkt. No.
28), and it will not be considered by the Court. 2
2 The Court notes that “New York law provides a
remedy for the improper denial of a FOIL request.
A person denied access to requested documents
may appeal the denial to the ‘head, chief executive
or governing body” of the entity or agency in
possession of the documents. N.Y. Pub. Off. Law §
89(4)(a). The person must then challenge the denial
of the FOIL request on appeal by commencing
a proceeding under Article 78 of the New York
Civil Practice Law and Rules. N.Y. Pub. Off. Law
§ 89(4)(b).” Blount v. Brown, 10-CV-1548, 2010
WL 1945858, at *2 (E.D.N.Y. May 11, 2010)
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Syfert v. City of Rome, Not Reported in Fed. Supp. (2020)
2020 WL 7053542
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
(citing Schuloff v. Fields, 950 F. Supp. 66, 67-68
(E.D.N.Y. 1997) (“The appropriate vehicle for
challenging denials of access guaranteed by the
New York Freedom of Information law is a state
court proceeding pursuant to N.Y. C.P.L.R. Article
78 upon exhaustion of administrative remedies.”)).
V. JURISDICTION MOTION OR VENUE MOTION
Plaintiff filed a document with the heading “Jurisdiction
Motion or Venue Motions?” (Dkt. No. 29.) Plaintiff's
submission appears to be requesting that the Court resolve
the dispute that was referenced in Plaintiff's Complaint
(Dkt. No. 1) regarding the building code violations at 422
West Embargo Street, Rome New York. (Compare Dkt. No.
29, with Syfert v. City of Rome, 19-CV-0775, 2019 WL
7602180, at *4-6 (N.D.N.Y. Aug. 14, 2019) (Lovric, M.J.)).
Those claims were dismissed with prejudice by Chief United
States District Judge Glenn T. Suddaby on November 14,
2019, pursuant to 28 U.S.C. § 1915(e)(2)(B). (Dkt. No.
8.) Therefore, it is unclear what relief, if any, Plaintiff is
requesting and what the grounds are for that relief.
In addition, Plaintiff's motion does not comply with Local
Rule 7.1(a), which requires that all motions include a
memorandum of law, supporting affidavit, and proof of
service on all the parties.
As a result, the Clerk of the Court is directed to strike
Plaintiff's Jurisdiction Motion or Venue Motion (Dkt. No. 29),
and it will not be considered by the Court.
ACCORDINGLY, it is
ORDERED that Plaintiff's motion for appointment of
counsel (Dkt. No. 24) is DENIED without prejudice; and it
is further
ORDERED that the Clerk of the Court shall STRIKE
Plaintiff's motion for joinder of parties (Dkt. No. 26); and it
is further
ORDERED that Plaintiff's motion to file a second amended
complaint (Dkt. No. 27) is DENIED without prejudice; and
it is further
ORDERED that the Clerk of the Court shall STRIKE
Plaintiff's Notice (Dkt. No. 28); and it is further
ORDERED that the Clerk of the Court shall STRIKE
Plaintiff's Jurisdiction Motion or Venue Motion (Dkt. No. 29);
and it is further
ORDERED that the Clerk of the Court shall serve a copy
of this Decision and Order on Plaintiff, along with copies of
the unpublished decisions cited herein in accordance with the
Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76
(2d Cir. 2009) (per curiam).
All Citations
Not Reported in Fed. Supp., 2020 WL 7053542
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 34 of 84

Syfert v. City of Rome
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 6:19-CV-00775
Syfert v. City of Rome
— N.D.N.Y. July 01, 2019 Docket
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 35 of 84

Syfert v. City of Rome
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (6)
Direct History (1)
1. Syfert v. City of Rome
2020 WL 7053542 , N.D.N.Y. , Dec. 02, 2020
Related References (5)
2. Syfert v. City of Rome
2019 WL 7602180 , N.D.N.Y. , Aug. 14, 2019
Report and Recommendation Adopted by
3. Syfert v. City of Rome
2019 WL 6000991 , N.D.N.Y. , Nov. 14, 2019
4. Syfert v. City of Rome
2020 WL 4506689 , N.D.N.Y. , Apr. 15, 2020
Report and Recommendation Adopted by
5. Syfert v. City of Rome
2020 WL 4500893 , N.D.N.Y. , Aug. 05, 2020
6. Syfert v. City of Rome
2022 WL 2180455 , N.D.N.Y. , June 13, 2022
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 36 of 84

Syfert v. City of Rome
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 37 of 84

Lee v. Town of Wawayanda, Not Reported in Fed. Supp. (2024)
2024 WL 6046840
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 6046840
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Claudia Marie LEE, Plaintiff,
v.
TOWN OF WAWAYANDA et al., Defendants.
23-cv-7064 (VSB)(JW)
|
Signed August 27, 2024
Attorneys and Law Firms
Claudia Marie Lee, Manhattan, NY, Pro Se.
Adam Rodd, Drake Loeb PLLC, New Windsor, NY, for
Defendant Town of Wawayanda, Wawayanda Town Court,
Shawn R. O'Connor.
Ian Ramage, Owen Crowley, NYS Office of The Attorney
General, New York, NY, for Defendant Matthew J. O'Connell.
Mamoon Saleemi, John Edmund Schemitsch, New York City
Law Department, New York City, NY, for Defendant Rajesh
Sharma, Jean Paul Rozenbenz, Ahmad Y. Othman.
REPORT & RECOMMENDATION
JENNIFER E. WILLIS, United States Magistrate Judge.
*1 TO THE HON. VERNON S. BRODERICK, United
States District Judge:
The Plaintiff, Ms. Lee, is unrepresented by a lawyer and thus
brings this case pro se. Ms. Lee sued the Town of Wawayanda
(a municipality in the State of New York), the Wawayanda
Town Court, the Wawayanda Town Justice, Judge Shawn R.
O'Connor, New York State Trooper Matthew O'Connell, the
New York City Police Department, and NYPD Officers Jean
Rozenbenz, Rajesh Sharma, and Ahmad Othman. Dkt. No. 1.
Ms. Lee asserts that in 2017, Trooper O'Connell ticketed
her for an uninspected vehicle. Id. at ¶15. She claims
Judge O'Connor then wrongly suspended her license for not
answering the ticket. Id. at ¶18. Ms. Lee then argues that
subsequent stops by NYPD officers violated her rights. Id. at
¶¶47, 51.
Because many of the Defendants are immune to suit and
several of Ms. Lee's claims are time-barred or fatally flawed,
the Motions to Dismiss should be GRANTED and the case
dismissed with prejudice.
I. BACKGROUND
A. Summary of the Allegations
Ms. Lee alleges that, on January 21, 2017, she was walking
away from her car in the Soons Apple Orchard parking
lot when one of the Defendants, State Trooper Matthew
O'Connell (“Trooper O'Connell”) stopped and ticketed her
for an uninspected vehicle. See Complaint, Dkt. No. 1, ¶ 15.
Ms. Lee asserts she was on private property when Trooper
O'Connell issued her the ticket. Id. at ¶ 39.
Ms. Lee then alleges that later in January 2017, she mailed
proof of her car's inspection to the Wawayanda Town Court.
Id. at ¶ 16. Ms. Lee further alleges that in April 2017, she
moved to dismiss the ticket in Wawayanda Town Court. Id.
¶ 17.
On August 20, 2017, Ms. Lee's license was suspended by the
Wawayanda Town Court. Id. ¶ 18. Although Ms. Lee asserts
that her license was suspended due to a lack of auto insurance,
the New York State Department of Motor Vehicles report
attached to Ms. Lee's Complaint 1 indicates that Ms. Lee's
license was suspended for the failure to appear and answer the
ticket in Wawayanda Town Court. See Dkt. No. 1 at 32 (“Your
privilege to drive has been suspended for failure to answer
ticket #2F236K2GLX. You must contact the court below to
resolve this issue: Town of Wawayanda, 80 Ridgebury Hill
Rd., Slate Hill, NY 10973.”). Ms. Lee does not allege that she
appeared at the Wawayanda Town Court to answer the ticket
or that she appeared to either pled guilty or not guilty to the
ticket. See generally Dkt. 1.
1 While this is not in the body of the Complaint,
the Court may “nevertheless consider it where the
complaint relies heavily upon its terms and effect
thereby rendering the document integral to the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622
F.3d 104, 111 (2d Cir., 2010).
Ms. Lee alleges that in November 2017 she sent the
Wawayanda Town Court a notice arguing that “they refused
a woman's right to travel” and ignored the fact that the ticket
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Lee v. Town of Wawayanda, Not Reported in Fed. Supp. (2024)
2024 WL 6046840
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
previously issued to her “occurred on private property.” Id. ¶
19. Ms. Lee claims she received no response. Id.
Thereafter, Ms. Lee alleges that from December 2017 until
August 2020 she contacted various New York State public
officials about her license suspension. Id. ¶ 20. Ms. Lee
alleges that a law known as the Driver's License Suspension
Reform Act required the Commissioner of the Department
of Motor Vehicles to remove suspensions starting on April
1, 2021. Id. ¶¶ 21 and 22. Ms. Lee alleges that neither the
Commissioner of the Department of Motor Vehicles nor the
Wawayanda Town Court removed Ms. Lee's suspension. Id.
¶¶19 and 23.
*2 Ms. Lee also alleges that she mailed documents to the
Wawayanda Town Court on December 2, 2021. Id. ¶32–33.
Later, on March 18, 2022, Ms. Lee says she mailed a Notice
of Claim to the Wawayanda Town Court defendants. Id.
Ms. Lee claims that in January 2022, a Judge from the
New York Criminal Court dismissed charges against Ms. Lee
stemming from an October 17, 2021 arrest, issued Ms. Lee
a Certificate of Disposition, and told Ms. Lee to take that
document to DMV to remove all suspensions. Id. at ¶¶ 34–
35. However, Ms. Lee alleges that personnel from the DMV
refused to do so. Id.
In October 2021, Ms. Lee alleges that Defendant NYPD
officers Rozenbenz, Sharma, and Othman arrested Ms.
Lee while she was traveling in her “Household Goods
automobile.” Id. ¶ 25. She alleges the NYPD officers
“requested her license, registration, and insurance.” Id. ¶ 26.
A few minutes later, three other police officers arrested and
searched Ms. Lee. Id. ¶ 26.
She claims the officers used “double handcuffs with my hands
behind my back exerting an unreasonable amount of brute
force.” She claims her “right knee hit a black steal bar in the
Police Vehicle as I tried to exit their car.” Ms. Lee claims she
was searched by a female police officer, who repeatedly said
Ms. Lee was “a criminal.” Id. Ms. Lee says she was held “in
a dirty very cold cell and handcuffed...to a metal bench for
about 4 hours.” Id. ¶ 26.
Ms. Lee claims her “right to travel was violated” and that
when she returned home that day, she saw her “right knee was
bleeding and swelling.” Id. ¶ 26.
B. Alleged Causes of Action
Ms. Lee's Complaint contains four causes of action. The
first cause of action is pled against all named defendants
and labeled as “Right to Travel.” Id. ¶ 39–42. Ms Lee
alleges Trooper O'Connell wrongfully ticketed her, Judge
O'Connor incorrectly suspended her driver's license, and
the NYPD officers should not have arrested her because
doing so infringed her “right to non-commercial travel” in a
“household goods automobile.” Id. ¶ 39–42.
Her second cause of action is “Search and Seizer (sic)” and is
asserted against the New York Police Department Defendants
only. Id. ¶ 43. She alleges that during the arrest she was
handcuffed, finger-printed, and “physically searched.” Id.
Ms. Lee's third cause of action, “Emotional and Physical
Injury and Misconduct,” is pled against all Defendants. Id.
¶¶ 44–47. She repeats her allegations with respect to the
other causes of action and claims that the emotional and
physical harms flowing from the arrests are attributable to all
Defendants.
The fourth cause of action, also pled against all Defendants,
is labeled “Laws Violated.” Id. ¶¶ 48–51. She claims that
the driver's license suspension violated various laws and
identifies, “the U.S. Constitution - Article IV, Section 1, Bill
of Rights - Amendment IX, Rights Retained by the People,
Fourteenth Amendment - Section 1, the New Hampshire
House Bill 1778-FNA-LOCAL Revised 2/15/2018 - Right
to Travel Sections I (a),(c),(e) and III, DRIVER LICENSE
SUSPENSION REFORM ACT- 74630B enacted December
31, 2020 that cancels the Suspension(s) effective April 1,
2021.” Id. ¶¶ 48.
C. Procedural Posture
In October 2023, Defendants Judge O'Connor, the Town
of Wawayanda, and the Wawayanda Town Court moved to
dismiss the Complaint. Dkt. No. 19. In November 2023, Ms.
Lee filed her Opposition, and the Reply was filed in December
2023. Dkt. Nos. 37 and 44.
*3 In November 2023, Trooper O'Connell also moved to
dismiss the Complaint. Dkt. No. 32–33. Ms. Lee opposed, and
the reply was filed in December 2023. Dkt. No. 53.
In March 2024, the City Defendants moved to dismiss for lack
of prosecution. Dkt. No. 61. In mid-March 2024, all motions
were referred to this Court. Dkt. No. 64.
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II. LEGAL STANDARD
The Wawayanda Defendants move to dismiss the case under
Rule 12(b)(1) for lack of subject matter jurisdiction and Rule
12(b)(6) for lack of a plausible claim. Trooper O'Connell
moves to dismiss the case under Rule 12(b)(6), and the City
moves to dismiss the case under Rules 41(b) and 37 for failure
to prosecute.
A. Motion to Dismiss for Lack of Subject Matter
Jurisdiction
Federal district courts are courts of limited jurisdiction and
must confirm that they have subject matter jurisdiction over
matters before them. International Flight Resources, LLC v.
Aufiero, Index No. 21-CV-3029 (VSB), 2022 WL 540660,
at *1 (S.D.N.Y., 2022)(citing Durant, Nichols, Houston,
Hodgson & Cortese–Costa P.C. v. Dupont, 565 F.3d 56, 62–
63 (2d Cir. 2009). If the court “determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss
the action.” International Flight Resources, LLC v. Aufiero,
Index No. 21-CV-3029 (VSB), 2022 WL 540660, at *1
(S.D.N.Y., 2022)(citing United Food & Com. Workers Union
v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301
(2d Cir. 1994)); Fed. R. Civ. P 12(h)(3).
Courts lack subject matter jurisdiction over immune
defendants. Close v. State of N.Y., 125 F.3d 31 (2d. Cir. 1997).
The Eleventh Amendment is a “jurisdictional bar which
deprives federal courts of subject matter jurisdiction.” See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,
98–100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Accordingly,
Eleventh Amendment immunity claims are properly brought
as motions to dismiss for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1).” Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996).
B. Motion to Dismiss for Failure to Plausibly Allege a
Claim Upon Which Relief Can Be Granted
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must allege sufficient facts, taken as true, to
state a plausible claim for relief.” Johnson v. Priceline.com,
Inc., 711 F.3d 271, 275 (2d Cir. 2013)(citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). A complaint “does not need
to contain detailed or elaborate factual allegations, but
only allegations sufficient to raise an entitlement to relief
above the speculative level.” Caldwell v. Sutton, No. 19-
CV-5236 (VEC), 2020 WL 4057750, at *2 (S.D.N.Y. July
20, 2020)(citing Keiler v. Harlequin Enters., Ltd., 751 F.3d
64, 70 (2d Cir. 2014)). For a plaintiff “to nudge their claims
across the line from conceivable to plausible, they must raise
a reasonable expectation that discovery will reveal evidence
of the wrongdoing alleged, even if it strikes a savvy judge that
actual proof of those facts is improbable.” Citizens United v.
Schneiderman, 882 F.3d 374 (2d Cir. 2018) (cleaned up).
Generally, the Court accepts all factual allegations in a
complaint as true and draws all reasonable inferences in the
light most favorable to a plaintiff. Gibbons v. Malone, 703
F.3d 595, 599 (2d Cir. 2013). The Court is not, however,
“bound to accept as true a legal conclusion couched as a
factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550
U.S. at 555, 127 S.Ct. 1955).
*4 The pleading standard is “generally lower for a pro
se litigant.” Caldwell, 2020 WL 4057750, at *2; see also
McDonald v. Head Criminal Court Supervisor Officer, 850
F.2d 121, 124 (2d Cir.1988)(“pro se litigants...deserve more
lenient treatment than those represented by counsel.”). A
document filed pro se is to be “liberally construed and a pro
se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Id. (citing Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007) (per curiam). The court must
“construe pro se submissions liberally and interpret them to
raise the strongest arguments that they suggest.” Kirkland v.
Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014); Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Courts ordinarily owe pro se litigants “special solicitude”
because the lack of legal training and experience makes
them more “likely to forfeit important rights through
inadvertence.” Caldwell 2020 WL 4057750, at *2 (citing
Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010)).
Notwithstanding that solicitude, a court “cannot invent factual
allegations that a pro se plaintiff has not pled.” Leib-Podry
v. Tobias, 2024 WL 1421152, at *4 (S.D.N.Y., 2024) (citing
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). “Even
pro se plaintiffs...cannot withstand a motion to dismiss unless
their pleadings contain factual allegations sufficient to raise
a right to relief above the speculative level.” Licorish-Davis
v. Mitchell, No. 12-CV-601 (ER), 2013 WL 2217491, at *3
(S.D.N.Y. May 20, 2013)(citing Jackson v. NYS Dep't of
Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y.2010)).
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C. Motion to Dismiss For Failure to Prosecute
1. Rule 41
Federal Rule of Civil Procedure 41(b) states that a defendant
may move to dismiss an action if “the plaintiff fails to
prosecute or to comply with these rules or a court order.” Fed.
R. Civ. P. 41(b). While district courts have “discretion to effect
dismissal pursuant to Rule 41(b),” the Second Circuit has
cautioned that such discretion “should be exercised sparingly
and only when the district judge is ‘sure of the impotence of
lesser sanctions.’ ” Virola v. Entire GRVC Dep't of Mental
Health Hygiene Servs., No. 12-CV-01005 (ER), 2014 WL
793082, at *2 (S.D.N.Y. Feb. 21, 2014) (citing cases) (quoting
Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir.
1980)); see also Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir.
2009).
In considering whether to dismiss a case under Rule 41, courts
consider five factors: (1) the duration of plaintiff's failure to
comply with court orders; (2) notice to plaintiff that failure
to comply would result in dismissal; (3) possible prejudice
to defendants from further delay; (4) the balance between the
interest of managing the court's docket and the plaintiff's right
to be heard; and (5) consideration of lesser sanctions. See
Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir.
1999); see also Smith v. Department of Corrections, No. 20-
cv-09501 (RA) (SDA), 2021 WL 11646319 (S.D.N.Y., 2021).
None of these factors is independently dispositive, and the
Court reviews the dismissal in light of the record as a whole.
Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
“Refusal to comply with discovery requests is grounds for
dismissal under Rule 41(b).” Lenoir v. Best Buy Co. Inc.,
No. 19-CV-10370 (RA) (OTW), 2021 WL 11678995, at *4–
5 (S.D.N.Y., 2021)(citing Harding v. Goord, 135 F. App'x
488, 488-89 (2d Cir. 2005); Ortega v. Mutt, No. 14-CV-9703
(JGK), 2017 WL 1133429, *1-2 (S.D.N.Y. Mar. 24, 2017)).
2. Rule 37(b)
*5 Rule 37(b)(2)(A)(v) provides that a Court may impose
sanctions on a litigant for “fail[ure] to obey an order to
provide or permit discovery,” including “dismissing the
action or proceeding in whole or in part.” Considerations for
dismissal under Rules 41(b) and 37(b)(2)(A) often involve
significant overlap. See Peters-Turnbull v. Board of Educ.
of City of New York, 7 Fed.Appx. 107, 109–10 (2d Cir.
2001). Thus, “there is little distinction whether the dismissal
is technically made under Rule 41 or Rule 37.” Id. When
considering whether to dismiss a case pursuant to Rule
37(b), the Second Circuit considers four factors: (1) the
willfulness of the non-compliant party or the reason for
noncompliance; (2) the efficacy of lesser sanctions; (3) the
duration of the period of noncompliance; and (4) whether the
non-compliant party had been warned of the consequences
of noncompliance. World Wide Polymers, Inc. v. Shinkong
Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012);
Leibovitz v. City of New York, No. 14-CV-3297 (RA) (JCF),
2017 WL 1314122 (S.D.N.Y., 2017).
II. DISCUSSION
Ms. Lee's Complaint must be dismissed for several reasons.
First, with respect to the claims against Trooper O'Connell,
any plausible claims are time-barred, and even if they were
not, Ms. Lee's arguments based on the New Hampshire
Bill, the Driver's License Suspension Reform Act, and the
Constitution are without merit. Moreover, Trooper O'Connell
benefits from qualified immunity.
Second, with respect to the claims against the Wawayanda
Defendants, Judge O'Connor benefits from judicial immunity,
the Town Court is protected by Eleventh Amendment
immunity, and the Town cannot be sued when there is no
alleged policy that violates the law.
Third, with respect to the City Defendants, Plaintiff has
ignored a clear directive from Judge Broderick over eight
months, and no other sanction would reasonably ensure
compliance. Each Motion to Dismiss will be discussed in turn.
A. Defendant New York State Trooper O'Connell
1. Claims Are Time-Barred
First, Ms. Lee's claims against Trooper O'Connell should be
dismissed because they are time-barred. When this Court
construes Ms. Lee's submissions “liberally” and interprets
them to “raise the strongest arguments that they suggest,”
her claim that the original ticket issued to her by Trooper
O'Connell violated the law or the Constitution is best
interpreted as an alleged violation of 42 U.S.C. § 1983.
Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir.
2014); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006).
Section 1983 claims based on events occurring within New
York are subject to a 3-year statute of limitations. See, e.g.,
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Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); Pearl v.
City of Long Beach, 296 F.3d 76 (2d Cir. 2002). A plaintiff's
claim begins to accrue when she “[knows] or [had] reason to
know of the injury which is the basis of his action.” Jones
v. City of New York, 571 F. Supp.3d 118, 128 (S.D.N.Y.
2021). Here, the claims against Defendant O'Connell arise
from a January 21, 2017 stop and ticket. Dkt. No. 1 ¶¶ 14–
15. However, Plaintiff did not file this action until August 10,
2023—more than six years after her alleged claims accrued.
Dkt. No. 1. Therefore, the statute of limitations on Plaintiff's
claims expired almost four years ago, in January of 2020.
While Ms. Lee points to the tolling of statutes of limitations
during the COVID-19 pandemic, the Executive Order only
tolled claims for “a total of 228 calendar days.” Anekwe v.
Bernstein, 2023 WL 4533659, at *4 (S.D.N.Y., 2023)(citing
Executive Order 202.8). Moreover, the deadline of January
2020 is unaffected by the Executive Order, which was not
issued until March 7, 2020. Id.
Therefore, all the claims against Trooper O'Connell are late.
2. Claim for Constitutional Right to Travel Fails
*6 Ms. Lee is correct that the Constitution “protects
a fundamental right to travel within the United States,”
which the Second Circuit has also called “the right to free
movement.” Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 99
(2d Cir. 2009).
However, the State of New York does not violate the right
to travel when it requires vehicles to be inspected or drivers
to obtain driver's licenses. States have a “paramount interest
in highway safety,” and “may summarily suspend or revoke
a driver's license with due process.” See Annan v. State of
New York Dep't of Motor Vehicles, 2016 WL 8189269, at *4
(E.D.N.Y. 2016)(citing Mackey v. Montrym, 443 U.S. 1, 19,
99 S.Ct. 2612, 61 L.Ed.2d 321 (1979)).
The Supreme Court has repeatedly affirmed state statutes
allowing for summary suspension of a driver's license with
a post-deprivation opportunity to challenge the suspension.
See Mackey, 443 U.S. 1, 19, 99 S.Ct. 2612, 61 L.Ed.2d
321 (1979); Dixon v. Love, 431 U.S. 105, 115, 97 S.Ct.
1723, 52 L.Ed.2d 172 (1977). Ms. Lee does not challenge the
constitutional adequacy of those procedures or allege that she
was deprived of those opportunities to challenge the ticket or
the suspension of her license.
Even if Ms. Lee's vehicle is a “household goods automobile,”
the State of New York has the power to require the vehicle
be inspected and that she get a driver's license before she
can engage in the privilege of driving. See generally Town of
Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir.
2007).
Ms. Lee asserts the “question” before the Court “is whether
the Court should overrule the United States Constitution and
the two State Laws that are honored under the Full Faith and
Credit Clause...to defend herself as a traveler in a home goods
automobile?” Dkt. No. 37 at 2. This Court's answer is, “No.”
While we cherish individual liberty in America, we live in a
democracy. The People of the State of New York are free to
pass laws requiring the inspection of vehicles and drivers to
obtain licenses. This is not a violation of the Constitution's
right to travel.
3. Unlawful Seizure Claim Fails
The Fourth Amendment protects “the people” from
“unreasonable searches and seizures.” See U.S. CONST.
AMEND. IV. It states that “no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing ... the persons or things to be seized.”
Id. The term “probable cause” has also been imported from
the warrant clause of the Fourth Amendment and applied
to its “unreasonable searches and seizures” clause. Id. The
term “probable cause” is thus not only the explicit Fourth
Amendment requirement for obtaining a warrant, but also
“descriptive of what seizures are reasonable.” Id.
Ms. Lee asserts she received the ticket on January 21,
2017. Dkt. No. 1 at ¶14. She attaches 2 to her complaint
an inspection report dated two days later, January 23, 2017.
Dkt. No. 1 at 21, Exhibit C. Given that the vehicle was not
inspected as of the date of the ticket, Ms. Lee cannot say that
Trooper O'Connell lacked probable cause to stop her and issue
her a ticket. Thus, the search and seizure claims fail.
2 While this is not in the body of the Complaint,
the Court may “nevertheless consider it where the
complaint relies heavily upon its terms and effect
thereby rendering the document integral to the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622
F.3d 104, 111 (2d Cir., 2010).
3. New Hampshire Bill
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*7 Ms. Lee argues the “New Hampshire House Bill 1778-
FN-A-LOCAL” provides her a right to travel and attaches the
text of the proposed bill to the Complaint. The N.H. House
Bill is a New Hampshire bill that was introduced in the 2018
legislative session but failed to become law. See HB 1778-
FN-A-LOCAL (Sess. 2018). Since it was not enacted, it is not
binding law in New Hampshire.
Even if the law had been passed in New Hampshire, New York
retains the right to require “every motor vehicle registered in
this state” to “be inspected once every year for safety.” See
N.Y. Veh. & Traf. Law § 301. Ms. Lee is “subject to the traffic
laws of the State of New York 3 and the enforcement of those
laws” against her “does not implicate the constitutional right
to travel.” Annan, 2016 WL 8189269 at *6. Thus, this claim
also fails.
3 The Complaint alleges that Ms. Lee was driving
in N.Y. state, has a N.Y. license, received a N.Y.
inspection report, and never alleged the vehicle was
registered in any other state or that she was licensed
in any other state. Thus, the effect, if any, on the
obligation to inspect a vehicle registered in another
state is irrelevant to the facts here.
Finally, a violation of state law is not cognizable under § 1983.
Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985).
4. Plaintiff's Claim Under the Driver's License
Suspension Reform Act
New York passed the Driver's License Suspension Reform
Act, which “amended Vehicle and Traffic Law § 510(4-a) to
remove the failure to pay a fine as a basis for the suspension
of a driver's license.” People v Urena, No. 571085/18, 80
Misc. 3d 129(A), 2023 WL 6113157, at *1 (Sup Ct, Sep. 18,
2023). But the New York State Department of Motor Vehicles
report attached to Ms. Lee's Complaint indicates that Ms.
Lee's license was suspended for the failure to appear and
answer the ticket in Wawayanda Town Court. See Dkt. No.
1 at 23; 32 (“Your privilege to drive has been suspended for
failure to answer ticket #2F236K2GLX. You must contact the
court below to resolve this issue: Town of Wawayanda, 80
Ridgebury Hill Rd., Slate Hill, NY 10973.”).
Ms. Lee does not allege that she appeared at the Wawayanda
Town Court to answer the ticket or that she appeared to either
plead guilty or not guilty to the ticket. See generally Dkt.
1. Ms. Lee submitted to the Town Court a “Declaration of
Express Trust,” but this does not amount to an appearance.
Ms. Lee must appear in Wawayanda Town Court to have her
suspension lifted. See VTL § 510 (“Such suspension...shall
remain in effect as long as the summons... remain[s]
unanswered.”). Ms. Lee can ask the Town Justice of
Wawayanda to vacate any penalty “in the interests of justice.”
N.Y. CPL 440.10(3). If she wishes to appeal a decision by
the Town Justice, she could appeal the decision to the Second
Judicial Department Appellate Term. N.Y. CPL 450.60(3).
If the Department of Motor Vehicles refuses to lift the
suspension, she can seek an administrative review under
Article 78. See N.Y. CPLR § 7804. This federal court has
no jurisdiction to review state court judgments for alleged
incorrect interpretations of state law. See generally Pollnow,
757 F.2d at 501.
5. Qualified Immunity
Generally, government officials are protected from suit by
the doctrine of qualified immunity if their “conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). To determine whether qualified immunity applies, a
court should inquiry into “(1) whether plaintiff has shown
facts making out violation of a constitutional right; (2) if so,
whether that right was clearly established; and (3) even if
the right was clearly established, whether it was objectively
reasonable for the officer to believe the conduct at issue was
lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154
(2d Cir. 2013).
*8 Because Plaintiff does not have a Constitutional or
statutory right to drive without a license and without an
inspected vehicle, Ms. Lee has not “shown facts making
out violation of a constitutional right.” Gonzalez v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). Thus, Trooper
OConnell has qualified immunity, and the claims against him
must be dismissed. See generally Pearson v. Callahan, 555
U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Barkai
v. Mendez, 629 F. Supp. 3d 166, 183 (S.D.N.Y. 2022).
B. Defendants Town of Wawayanda, Town of
Wawayanda Court & Judge O'Connor
Similar to the claims brought against Trooper O'Connell, the
claims against the Wawayanda Defendants also fail. This
is because 1) the claims are time-barred 2) Defendants are
immune, and 3) the actions by the Town Judge cannot be
imputed to the Town.
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1. Claims Are Untimely
Plaintiff asserts that Judge O'Connor suspended her license
on August 20, 2017. Dkt. No. 1 at ¶48. As discussed above,
the best characterization of Ms. Lee's claims is that she is
alleging the wrongful suspension 4 was an unconstitutional
deprivation of her rights under § 1983.
4 To the extent that Ms. Lee is alleging that Judge
O'Connor refused to restore her license, she did
not allege that she ever appeared in Wawayanda
to ask Judge O'Connor to vacate the suspension.
Without appearing, she cannot claim any refusal
to restore the license took place. However, if the
District Court concludes that the written requests
to restore her license constitute an appearance,
since she alleges she asked the Court to restore her
license in April 2021, her theoretical § 1983 claim
on the failure to restore would be timely. However,
for the reasons detailed below (including judicial
and 11th Amendment immunity) her claims would
still fail.
Section 1983 claims based on events occurring within New
York are subject to a 3-year statute of limitations. See, e.g.,
Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); Pearl v.
City of Long Beach, 296 F.3d 76 (2d Cir. 2002). Therefore,
since the deadline to file expired in April 2021 5 , Ms. Lee's
2023 claims against the Wawayanda Defendants are time-
barred and should be dismissed.
5 Three years after August 20, 2017 is August 2020.
Assuming that the 228-day tolling of the statute of
limitations for COVID-19 applies, the deadline to
file was April 2021.
2. Eleventh Amendment Immunity
The Eleventh Amendment provides that the “Judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.” McGinty v. New York,
251 F.3d 84, 91 (2d Cir., 2001). Sovereign immunity “extends
beyond the literal text of the Eleventh Amendment to bar
a citizen from suing her own state under federal question
jurisdiction.” See Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct.
504, 33 L.Ed. 842 (1890); McGinty, 251 F.3d at 91. Ms. Lee
does not allege that Congress abrogated New York's sovereign
immunity under the Fourteenth Amendment or that New York
consented to be sued for violations of the Driver's License
Suspension Reform Act or under § 1983. See generally Dkt.
No. 1. Thus, the Eleventh Amendment's immunity extends to
arms of the State of New York and forbids the claims here.
2. Eleventh Amendment Immunity Extends to Town
Court
*9 The Wawayanda Town Court is part of the New York
State Unified Court System. See, N.Y. Const. Art. 6, §
l(a). “Every court to consider the question of whether the
New York State Unified Court System is an arm of the
State has concluded that it is and is therefore protected
by Eleventh Amendment sovereign immunity.” Gollomp v.
Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). Therefore, while
Ms. Lee may disagree with the Town Court's decision and
may appeal that decision, she cannot sue the Town Court. See
Humphrey v. New York, 108 Fed. Appx. 691 (2d Cir. 2004);
Surpris v. Harrison Police Dep't, No. 21-CV-7697 (LTS),
2021 WL 5166364, at 2 (S.D.N.Y. Nov. 5, 2021); Yevstifeev
v. Steve, 860 F. Supp. 2d 217,224 (W.D.N.Y. 2012); Sander
v. Township of Coxsackie Court, 2023 WL 6283510, at 3
(N.D.N.Y. Sept. 27, 2023). Thus, the claims against the Town
of Wawayanda Court should be dismissed.
3. Judge O'Connor Has Judicial Immunity
Plaintiff alleges that Judge O'Connor misapplied the law
when he suspended her license for failing to answer the
ticket for an uninspected vehicle. She also alleges that Judge
O'Connor wrongly refused to restore her license. Dkt. No.
1 at ¶ 50. Even if Ms. Lee were correct that the license
never should have been suspended or that the Driver's License
Suspension Reform Act restored licenses suspended for
nonappearance as well as for nonpayment, her recourse is to
seek reconsideration of the decision or to appeal the decision.
See N.Y. CPL 440.10(3); 450.60(3); N.Y. CPLR § 7804. She
cannot sue the Town Judge in federal court for a decision she
disagrees with.
Judges are “absolutely immune” from suit for any actions
“taken within the scope of their judicial responsibilities.”
Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9
(1991); Green v. Maraio, 722 F.2d 1013, 1016-18 (2d Cir.
1983); Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)
(per curiam); Estes-El v. Town of Indian Lake, 954 F. Supp.
527 (N.D.N.Y. 1997). Even “allegations of bad faith or malice
cannot overcome judicial immunity.” Sun v. Mo, Index No.
24-CV-3630 (KPF), 2024 WL 3639158, at *7 (S.D.N.Y. Aug.
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Lee v. Town of Wawayanda, Not Reported in Fed. Supp. (2024)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
2, 2024)(citing Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir.
2009)). Therefore, the claims against Judge O'Connor must
be dismissed.
4. Claims Against Town of Wawayanda Must Be
Dismissed
Ms. Lee makes no specific allegations regarding Defendant
Town of Wawayanda. To the extent her Complaint could
be construed as alleging claims against the Town of
Wawayanda for actions taken by Judge O'Connor and
the Town of Wawayanda Court, “Section 1983 does not
recognize respondeat superior liability” for actions taken by
its employees. See Walston v. City of New York, 2024 WL
1376905, at *18 (S.D.N.Y., 2024)(citing Grazette v. City of
New York, No. 20-CV-965(ER)(SLC), 2022 WL 18958998,
at *6 (S.D.N.Y. Nov. 14, 2022), report and recommendation
adopted, No. 20-CV-965 (ER), 2023 WL 2403747 (S.D.N.Y.
Mar. 8, 2023) (citing Alwan v. City of New York, 311 F. Supp.
3d 570, 587 (E.D.N.Y. 2018)); K.D. ex rel. Duncan v. White
Plains Sch. Dist., No. 11-CV-6756 (ER), 921 F. Supp. 2d 197,
204 (S.D.N.Y. 2013)).
For a municipality to be held liable for actions taken by
employees, a plaintiff “must allege facts tending to support,
at least circumstantially, an inference that a municipal
policy or custom exists.’ ” Tsinberg v. New York, No. 20-
CV-749(PAE)(SLC), 2021 WL 1536659, at *9 (S.D.N.Y. Jan.
22, 2021)(quoting Santos v. New York City, 847 F. Supp. 2d
573, 576 (S.D.N.Y. 2012)). A plaintiff “must give a factual
description of such a policy, not just bald allegations that such
a thing existed.” Ortiz v. Parkchester N. 10 Condo., No. 16-
CV-9646 (VSB), 2018 WL 2976011, at *5 (S.D.N.Y. June
13, 2018). Ms. Lee alleges no facts regarding any Town of
Wawayanda policy that is plausibly unconstitutional.
*10 Even aside from the lack of allegations regarding
a policy, courts have repeatedly held that “a municipality
is not liable, vicariously, for an official act of one of its
judges.” Garcha v. City of Beacon, 351 F.Supp.2d 213,218
(S.D.N.Y.2005); Berry v. Vill. of Millbrook, 815 F.Supp.2d
711, 718-19 (S.D.N.Y.2011); Szymaszek v. Mahar, 2008
WL 4518613, at 8 (N.D.N.Y. Sept. 29, 2008). Therefore,
the claims against the Town of Wawayanda should also be
dismissed.
C. Defendants NYPD and NYPD Officers Jean
Rozenbenz, Rajesh Sharma, and Ahmad Othman
Motion to Dismiss for Failure to Prosecute
Unlike the Wawayanda Defendants and Trooper O'Connell,
the City Defendants move to dismiss not under Rule 12(b)
(6) but rather Rules 41 and 37. Dkt. No. 61. Considerations
for dismissal under Rules 41(b) and 37(b)(2)(A) often involve
significant overlap. See Peters-Turnbull v. Board of Educ.
of City of New York, 7 Fed.Appx. 107, 109–10 (2d Cir.
2001). Thus, “there is little distinction whether the dismissal
is technically made under Rule 41 or Rule 37.” Id.
In considering whether to dismiss a case for lack of
prosecution under Rule 41, courts consider factors such as: (1)
the duration of plaintiff's failure to comply with court orders;
(2) notice to plaintiff that failure to comply would result in
dismissal; (3) possible prejudice to defendants from further
delay; (4) the balance between the interest of managing the
court's docket and the plaintiff's right to be heard; and (5)
consideration of lesser sanctions. See Shannon v. Gen. Elec.
Co., 186 F.3d 186, 193-94 (2d Cir. 1999); see also Smith v.
Department of Corrections, No. 20-cv-09501 (RA) (SDA),
2021 WL 11646319 (S.D.N.Y., 2021).
When considering whether to dismiss a case pursuant to
Rule 37(b), the Second Circuit considers four factors: (1)
the willfulness of the non-compliant party or the reason for
noncompliance; (2) the efficacy of lesser sanctions; (3) the
duration of the period of noncompliance; and (4) whether the
non-compliant party had been warned of the consequences
of noncompliance. World Wide Polymers, Inc. v. Shinkong
Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012);
Leibovitz v. City of New York, No. 14-CV-3297 (RA) (JCF),
2017 WL 1314122 (S.D.N.Y., 2017).
On January 10, 2024, the City moved to extend the deadline
for all defendants’ time to answer due to Ms. Lee's “failure
to provide signed releases to unseal her medical and criminal
records.” Dkt. No. 56. In that same letter, the City moved to
compel Ms. Lee's execution of the releases. Id.
In January 2024, Judge Broderick granted the City's request,
explaining that:
Defendants request that I direct
Plaintiff to sign medical releases that
will allow them to fully investigate
Plaintiff's complaint. Such releases
are a routine part of cases, like
this one, where the plaintiff brings
claims for emotional and physical
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injuries. See Komatsu v. City of
New York, No. 20-cv-10942, 2022
WL 1446545, at *8 (S.D.N.Y. Apr.
21, 2022) (collecting cases), report
and recommendation adopted, No.
20-CV-10942, 2022 WL 2188170
(S.D.N.Y. June 17, 2022), appeal
dismissed (Aug. 4, 2022). Plaintiff
is therefore directed to provide the
necessary releases to Defendants
by January 31, 2024. Plaintiff is
cautioned that the failure to comply
with this Order may lead to the
dismissal of the below-referenced
Defendants under Federal Rules
of Civil Procedure 37(b)(2)(A) and
41(b). See Lebron v. Ramos, No. 19-
cv-2598, 2022 WL 2905171, at *1
(S.D.N.Y. July 21, 2022) (dismissing
a case where the plaintiff failed to
provide HIPAA releases). Defendants’
deadline to respond to the complaint
is hereby extended to March 12, 2024.
Dkt. No. 57 (emphasis added).
*11 Despite Judge Broderick's clear written warning, Ms.
Lee has not complied. Nearly eight months have passed since
Judge Broderick's deadline.
The City submitted a letter explaining that Ms. Lee said
she “would only send the Court ordered releases to City
defendants after receiving various pre-answer discovery
documents and the full name and addresses for ten NYPD
Officers. Plaintiff also demanded the undersigned provide
a purportedly mandatory ‘Current Foreign Registration
Statement,’ which has no relevance to the underlying action.
Dkt. No. 61.
Under Rules 41 and 37, the City's Motion to Dismiss for
lack of prosecution should be granted. First, “the duration of
plaintiff's failure to comply with court orders” weighs in favor
of dismissal. Eight months have passed since the deadline and
Ms. Lee provides no justification for the delay. See Caussade
v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013).
Second, Judge Broderick provided Ms. Lee clear notice that
“failure to comply would result in dismissal.” He noted Rules
41 and 37, and provided cases for Ms. Lee to review that
established the need for her to produce the required releases.
Dkt. No. 57. Thus this factor weighs in favor of dismissal.
Third, “when a plaintiff offers no reasonable excuse for the
delay,” as is the case here, prejudice to the defendant is
presumed because “as litigation drags on, evidence can be
lost and discovery becomes more difficult.” Sports Garten
LLC v. Sunday Night Productions, Inc., 2023 WL 10967725
(E.D.N.Y., 2023)(citing Montanez-Garcia v. City of New
York, 16-CV-6479 (LAP), 2018 U.S. Dist. LEXIS 106807, at
*5-6 (S.D.N.Y. June 25, 2018)). So this factor too weighs in
favor of dismissal.
Fourth, the Court is directed to balance the interest of
managing the court's docket and the plaintiff's right to be
heard. Here, Ms. Lee's failure to comply with clear directives
has significantly slowed the progress of the case. This factor
also weighs in favor of dismissal.
Fifth, the Court has considered lesser sanctions and finds them
unlikely to be effective here. Ms. Lee refused to produce
the ordered releases until the City met conditions she, not
Judge Broderick, set. As courts in the Southern District have
held, Plaintiff's “continued defiance of court orders after
being warned that the consequence of non-compliance is
dismissal indicates that lesser sanctions would be an exercise
in futility.” See Workneh v. Super Shuttle International, Inc.,
2020 WL 3492000, at *10 (S.D.N.Y., 2020). Here, Ms.
Lee's “intransigence acts as a complete roadblock to any
other resolution but dismissal with prejudice.” Watkins v.
Marchese, 2015 WL 4605660, at *15 (S.D.N.Y., 2015); see
generally Saint-Fleur v. JPMorgan Chase Bank, N.A., 2024
WL 3185077 (S.D.N.Y., 2024); see generally Burgess v.
Goodman, 2019 WL 719199 (S.D.N.Y., 2019)(dismissing
complaint with prejudice for failing to provide HIPPA
releases).
Therefore, after considering the five factors, the Court
recommends the case against the City be dismissed under
Rules 41(b) and 37(b)(2)(A). See generally Richards v City
of NY et al., Index No. 20-CV-3348(RA)(JW), Dkt. No. 165,
2024 WL 4451527 (July 11, 2024).
*12 While the Court need not separately analyze the Motion
under Rule 37(b), for the sake of thoroughness, the Court
notes that (1) Ms. Lee's noncompliance was willful, as she has
no valid excuse for noncompliance; (2) as discussed above,
lesser sanctions would not be effective; (3) the duration of
noncompliance is unacceptably long, eight months; and (4)
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Ms. Lee was warned of the consequences of noncompliance
at least three times. World Wide Polymers, Inc. v. Shinkong
Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012);
Leibovitz v. City of New York, No. 14-CV-3297 (RA) (JCF),
2017 WL 1314122 (S.D.N.Y., 2017). Thus, the case should
also be dismissed pursuant to Rule 37(b).
IV. Leave to Amend
Generally, “pro se litigants should be given leave to amend
a complaint if a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir.2000)(citing Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999)).
However, “leave to amend need not be granted when
amendment would be futile.” See Terry v. Inc. Vill. of
Patchogue, 826 F.3d 631, 633 (2d Cir. 2016)
Here, “the problems with” Plaintiff's claims “are substantive,”
not technical, so amendment would be futile. See JRLDDS,
LLC v. Hartford Fin. Servs. Grp. Inc., No. 21-CV-9487
(JMF), 2022 WL 3018152, at *3 (S.D.N.Y. July 29, 2022).
Therefore, given that even liberally construed, these claims
are time-barred and substantively flawed, no leave to amend
should be granted. See Licorish-Davis v. Mitchell, No. 12-
CV-601 ER, 2013 WL 2217491, at *10 (S.D.N.Y. May 20,
2013); Frost v. CVR Assocs. Inc., No. 1:19-CV-9190 (CM),
2019 WL 6340993, at *1 (S.D.N.Y. Nov. 26, 2019); Leib-
Podry v. Tobias, 2024 WL 1421152, at *10 (S.D.N.Y., 2024).
V. RECOMMENDATION
For all the foregoing reasons, the Court recommends that the
Motions to Dismiss be GRANTED and the case dismissed
with prejudice.
VI. FILING OF OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the Parties shall have
fourteen (14) days from receipt of this Report to file written
objections. See also Fed. R. Civ. P. 6(a). Such objections
(and responses thereto) shall be filed with the Clerk of
the Court. Any requests for an extension of time for filing
objections must be directed to Judge Broderick. 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE
AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d
Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.
1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.
1983) (per curiam).
The Clerk of the Court is respectfully requested to close
Dkt. Nos. 19, 32, 59, 61, 63, 66, and 73.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 6046840
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 47 of 84

Lee v. Town of Wawayanda
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:23-CV-07064
Lee v. Town of Wawayanda et al
— S.D.N.Y. Aug. 10, 2023 Docket
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 48 of 84

Lee v. Town of Wawayanda
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Lee v. Town of Wawayanda
2024 WL 6046840 , S.D.N.Y. , Aug. 27, 2024
Report and Recommendation Adopted by
2. Lee v. Town of Wawayanda
2026 WL 99995 , S.D.N.Y. , Jan. 14, 2026
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 49 of 84

Abbas v. U.S., Not Reported in F.Supp.3d (2014)
2014 WL 3858398
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 3858398
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Shariff ABBAS, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 10–CV–0141S.
|
Signed Aug. 1, 2014.
Attorneys and Law Firms
Shariff Abbas, Flushing, NY, pro se.
DECISION and ORDER
WILLIAM M. SKRETNY, Chief Judge.
INTRODUCTION
*1 Plaintiff Shariff Abbas commenced this pro se action
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671 et seq., and other federal laws, alleging
violation of his rights while detained at the Buffalo Federal
Detention Facility (“BFDF”) in Batavia, the Albany County
Jail and the Perry County Correctional Center (“PCCC”) in
Uniontown, Alabama. Currently before the Court for review
pursuant to 28 U.S.C. § 1915(e)(2)(B) is plaintiff's amended
complaint 1 , submitted in response to the Court's Order filed
on August 16, 2013 (“August 16 Order”) (Docket No. 6),
which reviewed plaintiff's original complaint (Docket No. 4),
dismissed several of the claims asserted therein, and granted
plaintiff leave to file an amended complaint. For the reasons
set forth below, plaintiff's FTCA claims against the United
States related to his treatment at the BFDF may proceed and
his remaining claims will be dismissed.
1 Plaintiff's amended complaint is accompanied
by two voluminous bound volumes of exhibits
captioned “Exhibit's [sic] Part 1”, containing a
Table of Contents and exhibits 1–18 and “Exhibit
Part 2”, containing a Table of Contents and
exhibits 19–40. Given the voluminous nature of
the exhibits, numbering hundreds of pages, and
the manner in which they are bound, which would
make scanning them very difficult, the Court has
not required the Clerk's Office to scan them into the
court's electronic filing system. They will instead
be maintained in paper form in a separate file in the
Clerk's Office. See note to Docket No. 6.
DISCUSSION
A. Bivens Claims
The August 16 Order directed, inter alia, that plaintiff's
FTCA claims stemming from his detention at the Albany
County Jail and the PCCC be dismissed; that plaintiff be
granted leave to file an amended complaint adding Bivens 2
or other federal claims against individual deportation officers
and other personnel at BFDF who he alleges violated his
rights; and that in the even he failed to timely file an
amended complaint as directed, the Court would issue an
Order directing service of the complaint upon the United
States as the sole defendant to his medical malpractice claims
brought under the FTCA. (Docket No. 5).
2 Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,
29 L.Ed.2d 619 (1971).
The August 16 Order noted that in addition to his FTCA
claims, plaintiffs original complaint asserted a variety
of violations of his constitutional rights by individual
deportation officers and other personnel during his periods
of detention at BFDF and that these claims would be
actionable against individual defendants under the Bivens
doctrine, which allows a plaintiff to pursue constitutional
claims against federal officials in their individual capacities
for actions taken under color of federal law. See Lombardi
v. Whitman, 485 F.3d 73, 78 (2d Cir.2007) (“[W]here an
individual ‘has been deprived of a constitutional right by
a federal agent acting under color of federal authority,’ the
individual may bring a so-called Bivens action for damages
against that federal agent in an individual capacity, provided
that Congress has not forbidden such an action and that the
situation presents ‘no special factors counseling hesitation in
the absence of affirmative action by Congress.’ ”) (internal
citations omitted) (quoting Thomas v. Ashcroft, 470 F.3d 491,
496 (2d Cir.2006). The Court determined, however, that the
Bivens claims could not proceed because of plaintiff's failure
to name the individual custody officers and other officials
who are alleged to have violated his rights as defendants in
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the caption of the complaint, as required by Rule 10(a) of the
Federal Rules of Civil Procedure:
*2 The Court cannot allow such Bivens claims to
proceed, however, because of plaintiff's failure to name
the individual custody officers and other officials who are
alleged to have violated his rights as defendants in the
caption of the complaint. Rule 10 of the Federal Rules of
Civil Procedure provides that “[t]he title of the complaint
must name all the parties” Fed.R.Civ.P. 10(a). Therefore,
a party that is not named in the caption of a complaint or
amended complaint is not a party to the action.
(August 16 Order at 16) (citations omitted). The Court
proceeded to note that plaintiff's failure to name in the caption
of the complaint the individual defendants against whom
he wished to assert Bivens claims would make it infeasible
for the Court to determine which of the individual custody
officers mentioned in the body of the complaint should be
deemed to be defendants to such claims, given the often
ambiguous nature of his reference to such individuals. (Id.
at 16–17). The Court therefore concluded that “[t]he way to
remedy plaintiff's failure to name as defendants in the caption
of his complaint those individuals against whom he may seek
to assert Bivens claims, as suggested by the allegations set
forth in the body of the complaint, is to afford him leave to file
an amended complaint which conforms to the requirements
of Rule 10(a).” (Id. at 17) (citations omitted). “Accordingly,
plaintiff will be afforded the opportunity to file, as directed
below, an amended complaint in which he shall name in
the caption of the complaint, each of the individuals against
whom he intends to assert a Bivens claim or claims, in a
manner that conforms to the requirements of Rules 8(a) and
10(a) of the Federal Rules of Civil Procedure.” (Id.).
The Court accordingly directed, in the Conclusion of the
August 16 Order, that plaintiff be given leave to file an
amended complaint conforming to the requirements of Rules
8 and 10 of the Federal Rules of Civil Procedure, and the
Court again explicitly advised plaintiff of his duty to list all
defendants in the caption of the complaint:
Plaintiff is reminded, as explained
above, that if he wishes to assert Bivens
or other claims against defendants
other than the United States in the
amended complaint, he must name
those individuals in the caption of
the amended complaint and set forth
specific allegations with respect to
how those individuals violated his
rights.
(Id. at 21). (emphasis added).
While plaintiff's amended complaint contains allegations that
would support Bivens claims (see Amended Complaint, ¶¶
17–42 passim ), 3 it does not name in the caption of the
complaint any individuals against whom plaintiff is seeking
to assert Bivens clams, nor does the section of the complaint
captioned “PARTIES” list any individual defendants. While
plaintiff does, in the section of the amended complaint
captioned “CONCLUSION”, set forth a list of “Federal
Employees from (BFDF) Health Division” (Amended
Complaint ¶ 57), which includes individuals mentioned
elsewhere in the amended complaint in connection with
plaintiff's allegations that would be relevant to Bivens claims,
the individuals named therein are not listed as defendants in
the caption of the amended complaint or in plaintiff's recital
of the parties to this action at the beginning of the amended
complaint; as noted supra, plaintiff lists only one defendant-
the United States-in the complaint caption and in his recital
of the parties. Moreover, plaintiff's statement of relief sought
at the end of the amended complaint (captioned “PRAYER”)
demands judgment “against the defendant.” (Id. at p. 16)
(emphasis added). 4
3 Plaintiff divides his claims into two sections
of the amended complaint, namely “Medical
Malpractice” (Amended Complaint, p. 3–5, ¶¶
8–16), which contains allegations supportive of
his FTCA claims, and “U.S. D.H.S.-ICE Federal
Agency and Custody Officers Abuses” (Id. at
p. 5–14, ¶¶ 17–56), which contains allegations
supportive of his Bivens constitutional claims.
The Court notes, however, that a number of the
allegations set forth in the “Federal Agency and
Custody Officers Abuses” section of the complaint
are relevant to his FTCA malpractice claims. See,
e.g., Amended Complaint, ¶ 21.
4 Plaintiff's failure to include in the caption of the
amended complaint the names of any defendants
against whom he is asserting Bivens claims is not
the only instance of his disregard of the Court's
directives regarding the form and content of his
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
amended complaint. The August 16 Order noted
that many of the Bivens claims that plaintiff's
allegations would support against individuals
identified in the body of the complaint appeared
to be barred by the statute of limitations. August
16 Order at 18. The Court accordingly directed as
follows:
In the amended complaint that plaintiff
will be given leave to file, as provided
below, in which he must demonstrate either
that his Bivens claims stemming from his
incarceration at BFDF are timely or, if any
such Bivens claims are untimely, he must
allege facts demonstrating why equitable
tolling should be applied to the statute of
limitations periods for such claims.
(August 16 Order at 19). As noted supra, the
August 16 Order provided that plaintiff would
be given leave to file an amended complaint
with respect to his Bivens claims, and plaintiff
was further advised, in this regard, “that he
should address the timeliness of any Bivens
claims that he asserts in the amended complaint
and any argument as to why the limitations
period applicable to such claims should be
equitably tolled.” (August 16 Order at 21).
However, plaintiff's amended complaint does not
address the timeliness issue or offer any basis
for equitable tolling of the limitations period.
Given the Court's dismissal herein of the Bivens
claims based upon plaintiff's failure to identify
the defendants against whom he seeks to assert
such claims, the Court need not further address
the timeliness issue.
Plaintiff further disregarded the August 16 Order
to the extent that he reasserts claims stemming
from his detention at the Albany County Jail
from February 21, 2006–March 21, 2006, and
the Perry County Correctional Center (“PCCC”)
in Uniontown Alabama from August 5, 2006–
February 9, 2007. (Amended Complaint at ¶¶ 14,
15, 28–40). The August 16 Order dismissed the
claims stemming from plaintiff's incarceration at
those facilities pursuant to 28 U.S.C. § 1406(a)
for improper venue. (August 16 Order at 13–14).
Those claims remain dismissed.
*3 The Court's duty to construe liberally the pleadings of
pro se litigants does not absolve pro se litigants from the
duty to comply with the requirements of the Federal Rules
of Civil Procedure and court orders issued pursuant to those
rules. See, e .g., Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir.2008) (noting that pro se litigants are required to
familiarize themselves with procedural rules and comply with
such rules); McDonald v. Head Criminal Court Supervisor
Officer, 850 F.2d 121, 124 (2d Cir.1988) (“[W]hile pro se
litigants may in general deserve more lenient treatment than
those represented by counsel, all litigants, including pro ses,
have an obligation to comply with court orders. When they
flout that obligation they, like all litigants, must suffer the
consequences of their actions.”)). As discussed supra, this
Court's previous order explained to plaintiff the requirement
of Rule 10(a) that all defendants to an action be named and
identified as such in the caption to the complaint, and the
Court afforded him the opportunity to cure the defect in his
initial complaint by filing an amended complaint naming
all defendants. Plaintiff has inexplicably failed to comply
with the Court's order and the requirement of Rule 10(a).
Accordingly, to the extent that plaintiff seeks to bring Bivens
claims against individual Custody Officers and other BFDF
officials, see Amended Complaint, ¶ 58 (“Plaintiff want [sic]
this Court to bring Justice against Federal Agency Employees
who Violate constitutional law against Plaintiff's rights”),
such claims must be dismissed in light of his failure to
name those individuals as defendants in the caption of the
amended complaint. See, e.g., Ferdik v. Bonzelet, 963 F.2d
1258, 1262–63 (9th Cir.1992) (dismissing action for refusal
to comply with court orders to name defendants in the caption
as required by Rule 10(a)).
Moreover, as explained in the August 16 Order (pp. 14–
15), constitutional claims under Bivens cannot be brought
against the only defendant named in the complaint, the
United States. See Robinson v. United States Bur. Of Prisons,
244 F.Supp.2d 57, 66 (N.D.N.Y.2003) (“[A] Bivens action
may not be maintained against the United States.”) (citing
Washington v. DEA, 183 F.3d 868, 872 n. 8 (8th Cir.1999).
Nor can constitutional claims be asserted against the United
States under the FTCA. See Washington, 183 F.3d at 873;
Russ v. United States, 62 F.3d 201, 204 (7th Cir.1995)
(“[C]onstitutional wrongs cannot be remedied through the
FTCA,”) (citing FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct.
996, 1001–02, 127 L.Ed.2d 308(1994)).
Plaintiff having thus having failed to name a proper defendant
to his Bivens claims, the Court concludes that his Bivens
claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)
(B) for failure to state a claim on which relief can be granted.
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Abbas v. U.S., Not Reported in F.Supp.3d (2014)
2014 WL 3858398
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
B. Treaty Claims
The Conclusion section of the amended complaint invokes,
as a basis for relief against defendant United States not
raised in plaintiffs original complaint, treaties to which
the United States is a signatory. Specifically, the amended
complaint states “At such time and places the United States
violates International Laws as A[sic] result the United
States are not in compliance with Refugee Convention
Requirements or The United Nations Convention against
Torture Prohibitions.” (Amended Complaint, § 57). It is
well established that the United Nations Convention Against
Torture and Other Cruel, Inhumane or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M.
1027, (“CAT”) does not give rise to a private right of action.
Renkel v. United States, 456 F.3d 640, 644 (6th Cir.2006)
(“As the Articles [of CAT] are not self-executing, they do
not create private rights of action; therefore, any private
lawsuit seeking to enforce the United States' obligations under
the Convention must be based on domestic law.”); Wolinski
v, Junious, 2012 U.S. Dist. LEXIS 65889, at *18–19,2012
WL 1657576 (E.D.Cal. May 10, 2012) (“The CAT does not
give rise to a private right of action because it is not self-
executing.) (citing Akhtar v. Reno, 123 F.Supp.2d 191, 196
(S.D.N.Y.2000),
*4 The United Nations Convention Relating to the Status
of Refugees, adopted July 28, 1951, art. 26, 19 U.S.T.
6259, 6576, 189 U.N.T.S. 150, 172 (“Refugee Convention”)
likewise does not create a private right of action. United States
v. Casaran–Rivas, 311 Fed. Appx. 269, 272 (11th Cir.2009)
(unpublished) (“[A]rgument that the indictment violated the
refugee Convention and CAT Treaty is without merit, as the
Refuge[e] Convention and CAT Treaty are not self-executing,
or subject to relevant legislation, and, therefore, do not confer
upon aliens a private right of action to allege a violation of
their terms.”); Reyes–Sanchez v. Ashcroft, 261 F.Supp.2d 276,
288–89 (S.D.N.Y.2003) (“Because the Refugee Convention
is not self-executing, it does not create individual rights.”).
Accordingly, plaintiff's claims against the United States under
CAT and Refugee Convention are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim on which
relief may be granted.
C. FTCA Claims
The medical malpractice-related claims under the FTCA
asserted by plaintiff in the amended complaint and stemming
from his detention at BFDF may go forward against defendant
United States. 5
5 As explained in the August 16 Order, plaintiff's
allegations of medical malpractice and the failure
to properly treat his serious medical condition are
clearly cognizable under the FTCA when asserted
against the United States. (August 16 Order at 6).
ORDER
IT IS HEREBY ORDERED, that plaintiff's Bivens claims are
dismissed with prejudice;
FURTHER, that plaintiff's claims under CAT and the Refugee
Convention are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to complete,
on plaintiff's behalf, and to issue, a summons for service of
process on defendant United States of America;
FURTHER, the Clerk of the Court is directed to send copies
of the Summons, Amended Complaint, 6 and this Order by
certified mail to the following, pursuant to Rule 4(i) of the
Federal Rules of Civil Procedure:
6 As explained in n. 1, supra, plaintiff's voluminous
exhibits to the amended complaint are maintained
in paper form in a separate file folder in the Clerk's
Office.
• Attorney General of the United States, Main Justice
Building, 10th and Constitution Avenues N.W., Washington,
DC 20530;
• Civil Process Clerk, United States Attorney for the Western
District of New York, United States Attorney's Office, USAO/
WDNY, 138 Delaware Avenue, Buffalo, New York 14202.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 3858398
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 53 of 84

Abbas v. U.S.
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:10cv00141
ABBAS v. UNITED STATES OF AMERICA
— W.D.N.Y. Feb. 22, 2010 Docket
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 54 of 84

Abbas v. U.S.
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (6)
Direct History (1)
1. Abbas v. U.S.
2014 WL 3858398 , W.D.N.Y. , Aug. 01, 2014
Related References (5)
2. Abbas v. United States
2013 WL 12424565 , W.D.N.Y. , Aug. 16, 2013
3. Abbas v. U.S.
2015 WL 5770092 , W.D.N.Y. , Sep. 30, 2015
Vacated and Remanded by
4. Shariff v. United States
689 Fed.Appx. 18 , 2nd Cir.(N.Y.) , Apr. 26, 2017
5. Abbas v. United States
2018 WL 10038793 , W.D.N.Y. , Feb. 28, 2018
6. Abbas v. United States
2019 WL 4922173 , W.D.N.Y. , Oct. 04, 2019
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 55 of 84

Coon v. Merola, Not Reported in Fed. Supp. (2019)
2019 WL 1981416
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 1981416
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Donald James COON, Plaintiff,
v.
Frank MEROLA, et al., Defendants.
1:19-CV-394 (DNH/ATB)
|
Signed 04/08/2019
Attorneys and Law Firms
Donald James Coon, Troy, NY, pro se.
ORDER and REPORT-RECOMMENDATION
Hon. Andrew T. Baxter, U.S. Magistrate Judge
*1 The Clerk has sent to the Court a civil rights complaint
filed by pro se plaintiff Donald James Coon, together with a
motion to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2).
I. In Forma Pauperis (“IFP”) Application
A review of plaintiff's IFP application shows that he declares
he is unable to pay the filing fee. (Dkt. No. 2). The court finds
for purposes of this recommendation, that plaintiff meets the
financial criteria for IFP status.
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines that
the action is (i) frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell
Atl. Corp., 550 U.S. at 555). The court will now turn to
a consideration of the plaintiff's complaint under the above
standards.
II. Complaint
Although plaintiff's complaint is very conclusory, a liberal
reading of the allegations contained therein show that plaintiff
is attempting to allege that the Rensselaer County Clerk and
his John/Jane Doe Deputy Clerks have violated plaintiff's
constitutional rights in connection with a state court law suit
that plaintiff has attempted to bring. (Complaint (“Compl.”)
generally) (Dkt. No. 1). In order to understand plaintiff's
allegations in this action, the court must discuss another
action filed by this plaintiff in 2016. In 2016, plaintiff
filed a federal action in this court in which he named
a variety of defendants, including Police Chief George
Bell, the Villages of Cambridge and Greenwich, various
district attorneys, Claverack Insurance Company, Glens Falls
Hospital, Washington County Child Protective Services, and
a police officer. Coon v. Bell, No. 1:16-CV-291 (TJM/DJS).
*2 After initial review of plaintiff's complaint in Coon v.
Bell, Magistrate Judge Daniel Stewart found that plaintiff
failed to state claims against the defendants and recommended
that he be allowed to file an amended complaint in
an effort to cure the deficiencies in the original. (Dkt.
No. 8 in 16-CV-291). United States District Court Judge
Thomas J. McAvoy adopted Magistrate Judge Stewart's
recommendation on May 23, 2016. (Dkt. No. 11 in 16-
CV-291). Plaintiff complied with the court's direction and
filed an amended complaint on May 23, 2016. (Dkt. No. 12
in 16-CV-291).
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Coon v. Merola, Not Reported in Fed. Supp. (2019)
2019 WL 1981416
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Magistrate Judge Stewart conducted an initial review of the
amended complaint and found that plaintiff failed to cure
most of the deficiencies that were in the original. (Dkt. No.
13 in 16-CV-291). Magistrate Judge Stewart recommended
dismissing most of the claims and most of the defendants
from the action, while allowing a Fourth Amendment illegal
search claim and Fourth Amendment excessive force claim
to proceed against defendant Bell. 1 (Dkt. No. 13 in 16-
CV-291). Magistrate Judge Stewart's recommendation was
adopted by Judge McAvoy on November 2, 2016. (Dkt. No.
16 in 16-CV-291).
1 Defendant Bell has since passed away, and his
estate's representative has been substituted as a
party. (Dkt. Nos. 52, 71). Another defendant was
joined to 16-CV-291, and there have been various
other proceedings in that case, but those details are
not relevant to this action.
In Magistrate Judge Stewart's report and recommendation,
he found that plaintiff's defamation claims against defendant
Bell and his attempted contract claims against defendant Bell
and Claverack Insurance Company were, at best, state law
claims. 2 (Dkt. No. 13 in 16-CV-291 at 4). Plaintiff then
states that he “filed said claims” in the Rensselaer County
Supreme Court. (Compl. at 1). Plaintiff states that in 2017,
Judge Andrew G. Ceresia granted plaintiff poor person status,
but that when he went to the Rensselaer County Clerk's office,
defendant Merola told plaintiff that Judge Ceresia's order was
“no good and they wouldn't honor it.” (Compl. at 2). Plaintiff
states that he brought Judge Ceresia's order to the Clerk's
office four more times, and “finally” on March 11, 2019, a
clerk that plaintiff had never seen before stamped the Judge's
order and kept a copy. (Id.)
2 Although plaintiff states in this action that
Magistrate Judge Stewart told plaintiff that the
contract and defamation claims “needed to be
refiled in Supreme Court,” that is not exactly
what Magistrate Judge Stewart said. His exact
words were that “[l]iberally construed, plaintiff
might be attempting to make state law defamation
and intentional interference with a contract
claims. Again, however, Plaintiff's vague and
conclusory allegations fail to plausibly state
such claims.” (Dkt. No. 13 in 16-CV-291 at 4)
(emphasis added). The court merely notes this for
the record. Magistrate Judge Stewart's dismissal
and his language are not relevant to the findings
herein.
Plaintiff alleges that he has been denied his “rightful benefits
and access to the court.” Plaintiff states that he even had “to
choose between the suit or my housing,” and that he was
homeless from January 12, 2018 until April 24, 2018. (Id.)
Plaintiff states that the Rensselaer County Supreme Court
wrote plaintiff “2 times the County Clerk's staff made me pay
for RJI motion I had already paid for. They told me to give
letter [sic] to the Clerk and I would get my monies back.” (Id.)
Plaintiff states that he is seeking “just compensation” for the
Rensselaer County Clerks' actions who refused to recognize
his “poor person status” from 2017 until 2019. Plaintiff
states that he still has not “received anything” from the
“grant[ed] status” because the Clerks refused to grant “my
said status.” (Id.) Plaintiff seeks substantial monetary relief.
(Id.)
III. Judicial Immunity
A. Legal Standards
*3 With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions. Mireles v. Waco, 502 U.S. 9, 9-10 (1991). Judicial
immunity has been created for the public interest in having
judges who are “at liberty to exercise their functions with
independence and without fear of consequences.” Huminski v.
Corsones, 396 F.3d 53, 74 (2d Cir. 2004). Judicial immunity
applies even when the judge is accused of acting maliciously
or corruptly. Imbler v. Pachtman, 424 U.S. 409, 419 n.12
(1976) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).
Judicial immunity is immunity from suit, not just immunity
from the assessment of damages. Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). The only two circumstances in which
judicial immunity does not apply is when he or she takes
action “outside” his or her judicial capacity and when the
judge takes action that, although judicial in nature, is taken
“in absence of jurisdiction.” Mireles, 502 U.S. at 11-12.
Absolute immunity extends to court clerks who perform
tasks “ ‘which are judicial in nature and an integral part of
the judicial process.’ ” Proctor v. Quinn, No. 19-CV-833,
2019 WL 692935, at *2 (E.D.N.Y. Feb. 19, 2019) (quoting
Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)). The
court's “ ‘inherent power to control its docket is part of
its function of resolving disputes between parties’ and is
thus ‘a function for which judges and their supporting staff
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Coon v. Merola, Not Reported in Fed. Supp. (2019)
2019 WL 1981416
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
are afforded absolute immunity.’ ” Id. (quoting Rodriguez,
116 F.3d at 66); and citing Pikulin v. Gonzalez, No. 07-
CV-0412 (CBA), 2007 WL 1063353, at *2 (E.D.N.Y. Apr.
5, 2007) (finding that absolute judicial immunity extends to
“the Clerk's Office activities of filing and docketing legal
documents”). However, a court clerk may not be entitled to
absolute immunity where the clerk's refusal to accept the
papers of a litigant seeking to commence an action results in
the deprivation of the individual's constitutional rights. Glass
v. New York Supreme Court Appellate Division, No. 1:17-
CV-226, 2017 WL 9487181, at *3 (N.D.N.Y. Apr. 26, 2017)
(citations omitted).
In determining whether the clerk's conduct in a particular
case is “judicial” in nature, the court takes a “functional
approach” and allows the defendant absolute immunity when
the clerk is performing a “discretionary act, or performing a
duty that inherently relates to resolving a dispute.” Vance v.
State of New York Dep't of Corrections, No. 9:18-CV-748,
2018 WL 6047828, at *10 (N.D.N.Y. Nov. 19, 2018) (quoting
Dzwonczyk v. Suddaby, No. 10-CV-0300, 2010 WL 1704722,
at *6 (N.D.N.Y. Apr. 28, 2010) (citing Rodriguez, 116 F.3d at
67) (internal quotation marks omitted)).
B. Application
Plaintiff's statements in this case are conclusory and
essentially, he is suing the “clerks” because they would not
file his poor person status order between 2017 and 2019. At
best, he alleges a delay in granting him poor person status
because it appears that a clerk finally took and filed plaintiff's
order, and at the end of his complaint, plaintiff alleges that he
“still” has not “received a thing or any help from the granyted
[sic] status.” (Compl. at 2) (emphasis added). It is unclear
what plaintiff believes he should have “received” or to what
“help” he thinks he is entitled from the clerks beyond filing
his order.
It is also unclear how plaintiff alleges that he was denied
“access to courts” because he states that he filed his state law
claims in the Rensselaer County Supreme Court. (Compl. at
1). However, he claims he was denied his “rightful benefits,”
and that somehow the clerk's actions in delaying the filing
of his poor person order were related to his homelessness
between January 12, 2018 and April 24, 2018. Plaintiff claims
that he had to choose between “the suit” or his housing, but
he does not explain why this is true or why this would be a
denial of his constitutional rights. Plaintiff also states that the
clerks made plaintiff pay for his RJI “motion,” but that he was
told that if he wrote a letter, he would get his money back.
*4 As it is written, plaintiff's complaint is too conclusory
to state a claim against any of the clerks in this action,
whether named or unnamed, 3 and the court will recommend
dismissal.
3 Finally, the court must note that the United States
Marshal would not be able to effect service of
process on a “John or Jane Doe” defendant. In
order for plaintiff to pursue his claims against John
Doe defendants, he would ultimately be required
to ascertain their identity. LaPoint v. Vasiloff, No.
5:15-CV-185, 2015 WL 1524437, at *4 (N.D.N.Y.
Apr. 2, 2015).
IV. Opportunity to Amend
A. Legal Standards
Generally, when the court dismisses a pro se complaint sua
sponte, the court should afford the plaintiff the opportunity
to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
B. Application
In this case, the court will recommend dismissal without
prejudice, even though the court has serious doubts that
plaintiff will be able to amend his complaint to state a
claim. However, because there are situations in which a
clerk would not be entitled to absolute immunity, and
plaintiff in this case has failed to include enough facts
for the court to make an accurate determination, the court
will recommend dismissal without prejudice to plaintiff
submitting an amended complaint.
If the court adopts this recommendation, and plaintiff is
afforded the opportunity to amend, he should be afforded
forty-five (45) days from the date of the order adopting this
court's recommendation. Plaintiff should also be advised that
if he files an amended complaint, it must be a complete
pleading which must supercede the original and may not
incorporate any facts from the original by reference.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
2) be GRANTED for purposes of filing, and it is further
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2019 WL 1981416
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
RECOMMENDED, that the complaint be DISMISSED
based on quasi-judicial immunity and for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii)
WITHOUT PREJUDICE to plaintiff filing an amended
complaint, and it is
RECOMMENDED, that if the District Court adopts this
recommendation, plaintiff be directed to file his amended
complaint or ask for an extension of time to do so within
FORTY-FIVE (45) DAYS from the date of the District
Court's order adopting the recommendation, and it is
RECOMMENDED, that if plaintiff files an amended
complaint within the appropriate time, the court return the
proposed amended complaint to me for initial review, and it is
RECOMMENDED, that if the court adopts this
recommendation, and plaintiff fails to file an amended
complaint or ask for an extension of time to do so at the
expiration of the forty-five (45) days, the complaint be
dismissed with prejudice and the case closed, and it is
ORDERED, that the Clerk of the Court serve a copy of this
Order and Report-Recommendation on plaintiff by regular
mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 1981416
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Coon v. Merola
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:19-CV-00394
Coon v. Merola et al
— N.D.N.Y. Apr. 03, 2019 Docket
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 60 of 84

Coon v. Merola
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Coon v. Merola
2019 WL 1981416 , N.D.N.Y. , Apr. 08, 2019
Report and Recommendation Adopted by
2. Coon v. Merola
2019 WL 1978595 , N.D.N.Y. , May 03, 2019
Case 3:25-cv-01710-ECC-MJK Document 9 Filed 03/26/26 Page 61 of 84

Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4870495
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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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
“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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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
Not Reported in Fed. Supp., 2024 WL 4870495
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Cole v. Smrtic
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Filings (1)
Title PDF Court Date Type
1. Docket 1:24-CV-00847
Cole v. Smrtic et al
— N.D.N.Y. July 08, 2024 Docket
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Cole v. Smrtic
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History (2)
Direct History (2)
1. Cole v. Smrtic
2024 WL 4870495 , N.D.N.Y. , Nov. 21, 2024
Report and Recommendation Adopted by
2. Cole v. Smrtic
2025 WL 247901 , N.D.N.Y. , Jan. 21, 2025
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Cole v. Smrtic
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Houston v. Collerman, Not Reported in Fed. Supp. (2016)
2016 WL 6267968
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 6267968
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Eddie HOUSTON, Plaintiff,
v.
COLLERMAN, et. al., Defendants.
9:16-CV-1009 (BKS/ATB)
|
Signed 10/26/2016
Attorneys and Law Firms
EDDIE HOUSTON, 08-A-3122, Mid-State Correctional
Facility, P.O. Box 2500, Marcy, New York 13403, Plaintiff,
pro se.
AMENDED DECISION AND ORDER 1
1 On October 20, 2016, the Court issued a Decision
and Order upon initial review of plaintiff's
complaint. Dkt. No. 4. This Amended Decision
and Order is issued to correct clerical errors in the
Conclusion of the Order.
BRENDA K. SANNES, United States District Judge
I. Introduction
*1 The Clerk has sent to the Court for review a civil rights
action filed by pro se plaintiff Eddie Houston. Dkt. No. 1
(“Compl.”). Plaintiff has not paid the statutory filing fee for
this action and seeks leave to proceed in forma pauperis. Dkt.
No. 2 (“IFP Application”).
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.
09-CV-1922, 2010 W L 5185047, at *1 (S.D.N.Y. Oct. 26,
2010). Upon review of plaintiff's IFP Application, the Court
finds that plaintiff has demonstrated sufficient economic
need and filed the inmate authorization form required in the
Northern District of New York. Plaintiff's IFP application
(Dkt. No. 2) is granted. 2
2 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. See 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).
III. Initial Screening
Having found that plaintiff meets the financial criteria for
commencing this action in forma pauperis, and because
plaintiff seeks relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the complaint in light of 28
U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of
the United States Code directs that, when a plaintiff seeks to
proceed in forma pauperis, “the court shall dismiss the case at
any time if the court determines that – ... (B) the action ... (i)
is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). 3
3 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).
Similarly, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a 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(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d
Cir. 1999) (per curiam) (noting that Section 1915A applies to
all actions brought by prisoners against government officials
even when plaintiff paid the filing fee).
*2 Additionally, when reviewing a complaint, the Court may
also look to the Federal Rules of Civil Procedure. Rule 8 of
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the Federal Rules of Civil Procedure provides that a pleading
which sets forth a claim for relief shall contain, inter alia, “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of
Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Hudson v. Artuz,
No. 95 CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov.
30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-
CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995)
(other citations omitted)).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. Thus, a pleading that contains only
allegations which “are so vague as to fail to give the
defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102,
104 (2d Cir. 2009).
IV. Summary of the Complaint 4
4 Plaintiff annexed exhibits to the complaint. Dkt.
No. 1-1. To the extent that the exhibits are relevant
to the incidents described in the complaint, the
Court will consider the complaint as well as any
documents attached as exhibits. See Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991) (the complaint is deemed to include any
written instrument attached to it as an exhibit or
any statements or documents incorporated in it by
reference).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which establishes a cause of action for “ ‘the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws’ of the United States.” German v.
Fed. Home Loan Mortgage 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. 6:95-CV-0272
(TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10,
1995) (stating that Ҥ 1983 is the vehicle by which individuals
may seek redress for alleged violations of their constitutional
rights.” (citation omitted)). “Section 1983 itself creates no
substantive rights, [but] ... only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). The Court
will construe the allegations in plaintiff's complaint with the
utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519,
521 (1972) (holding that a pro se litigant's complaint is to be
held “to less stringent standards than formal pleadings drafted
by lawyers.”).
*3 Plaintiff, an inmate currently being held at Mid-
State Correctional Facility (“Mid-State C.F.”), asserts claims
arising out of his confinement in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”). The incidents that form the foundation for
this complaint occurred while plaintiff was confined at
Elmira Correctional Facility (“Elmira C.F.”). See Compl.,
generally. On July 13, 2013, plaintiff filed a grievance
claiming that defendants Officer Copestick (“Copestick”) and
Officer Schieber (“Schieber”) harassed him, on more than
one occasion, about his medication. See id. at 6; see Dkt.
No. 1-1 at 3-5. On August 5, 2013, after an investigation
into the allegations, the Superintendent of Elmira C.F. denied
plaintiff's grievance. See Dkt. No. 1-1 at 5.
On September 30, 2013, plaintiff was on his way to the
masjid to participate in Ramadan when he was stopped by
Copestick and Schieber and directed to the wall for a pat-
frisk. See Compl. at 5. While plaintiff's hands were on the
wall, Schieber “violently kicked” his legs from underneath
him. See id. Schieber “stomped” on plaintiff's ankles while
Copestick attempted to choke plaintiff. See id. During the
assault, the officers yelled racial slurs. See id. Defendant
Sergeant Collerman (“Collerman”) watched the officers beat
plaintiff. See Compl. at 5. As a result of the attack, plaintiff's
eyeglasses were broken, his ankle was swollen, and he could
not walk. See id. at 5, 9.
At approximately 5:00 p.m., plaintiff received medical
treatment for complaints of pain in his right big toe and
swelling in his right foot. See Dkt. No. 1-1 at 19. Plaintiff
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received Motrin and was advised to follow with sick call
requests, if needed. See id. A “use of force/inmate injury”
report was compiled. 5 See id. At approximately 7:15 p.m.,
plaintiff, a diabetic, told a medical provider that he had not
received his daily “medication.” See id. The provider ordered
various medications to be delivered to plaintiff on a daily
basis. See id.
5 The Use of Force report was not annexed as an
exhibit to the complaint.
On October 1, 2013, plaintiff received a misbehavior report
charging him with assault on staff and with refusing a direct
order and search. 6 See Compl. at 5. On the same day, plaintiff
was placed in confinement in the Special Housing Unit
(“SHU”). See Dkt. No. 1-1 at 19. On October 3, 2013, plaintiff
attended a Hearing regarding the misbehavior report. 7 See
Dkt. No. 1-1 at 10. On November 3, 2013, plaintiff received
a copy of the hearing disposition dismissing all charges. See
Dkt. No. 1-1 at 11; Dkt. No. 1 at 5.
6 The name of the officer who served the
misbehavior report is not clearly legible on the
Hearing Disposition annexed as an exhibit. See
Dkt. No. 1-1 at 10. Plaintiff does not allege
that Copestick, Schieber, or Collerman delivered
the report. The disposition form indicates that
the charges were reported by Schieber. Id. The
misbehavior report was not annexed as an exhibit
to the complaint.
7 The officer who presided over the hearing was a
Captain at Elmira C.F. However, the name of the
hearing officer is not clearly legible. See Dkt. No.
1-1 at 10-11.
On November 3, 2013, plaintiff was released from the SHU.
See Compl. at 5. While plaintiff was in the SHU, he was
unable to participate in Ramadan, denied religious meals,
denied parole, and excluded from mental health programs.
See id.
Construed liberally, the complaint contains the following
claims: (1) Copestick and Schieber violated plaintiff's
Eighth Amendment rights with use of excessive force
(Fifth, Fifteenth, Twentieth, and Twenty-Second Causes of
Action); (2) Collerman failed to protect plaintiff from the
assault in violation of plaintiff's Eighth Amendment rights
(Fifteenth Cause of Action); (3) defendants were deliberately
indifferent to plaintiff's serious medical needs in violation
of the Eighth Amendment (Sixth, Seventh, and Fifteenth
Causes of Action); (4) Copestick and Schieber retaliated
against plaintiff in violation of plaintiff's First Amendment
rights (Twenty-First Cause of Action); (5) plaintiff's First
Amendment rights to religious freedom were violated (Fourth
Cause of Action); (6) plaintiff's Fourteenth Amendment
rights to due process and equal protection were violated
(First, Second, Third, Sixth, Sixteenth, and Eighteenth
Causes of Action); (7) defendants failed to investigate
plaintiff's complaints and follow grievance procedures (Tenth
and Thirteenth Causes of Action); (8) perjury claims
against officers who filed the misbehavior report (Eleventh
and Seventeenth Causes of Action); and (9) supervisory
claims against DOCCS (Eighth, Ninth, Twelfth, Fourteenth,
Nineteenth, Twenty-Third, Twenty-Fourth, Twenty-Fifth, and
Twenty Sixth Causes of Action). See Compl., generally.
Plaintiff seeks compensatory damages, injunctive relief,
and criminal charges against defendants (Eleventh and
Seventeenth Causes of Action). See Compl. at 9-13.
V. Analysis
A. Eleventh Amendment
*4 The Eleventh Amendment has long been construed as
barring a citizen from bringing a suit against his or her own
state in federal court, under the fundamental principle of
“sovereign immunity.” U.S. Const. amend. XI (“The Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.”); Hans
v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur
d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
Eleventh Amendment immunity is lost only if Congress
unequivocally abrogates states' immunity or a state expressly
consents to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d
Cir. 2009). It is well-settled that Congress did not abrogate
states' immunity through 42 U.S.C. § 1983, see Quern v.
Jordan, 440 U.S. 332, 343-45 (1979), and that New York State
has not waived its immunity from suit on the claims asserted
in plaintiff's complaint. See generally Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977);
Dawkins v. State of New York, No. 93-CV-1298 (RSP/GJD),
1996 W L 156764 at *2 (N.D.N.Y. 1996).
Here, insofar as plaintiff seeks an award of money damages
pursuant to Section 1983 against DOCCS, those claims are
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dismissed as plaintiff seeks relief from a defendant immune
from suit under section 1983. See LeGrand v. Evan, 702
F.2d 415, 417 (2d Cir. 1983); see Meehan v. Kenville, 555
Fed.Appx. 116 (2d Cir. 2014); see Simmons v. Gowanda
Corr. Facility, No. 13-CV-0647, 2013 WL 3340646, at *1
(W.D.N.Y. July 1, 2013) (“the New York State Department
of Corrections and [the named correctional facility] enjoy the
same Eleventh Amendment immunity from suit in federal
court as enjoyed by the state itself”) (quoting Posr. v. Court
Officer Shield No. 207, 180 F.3d 409, 411 (2d Cir. 1999)).
B. Eighth Amendment
1. Excessive Force Claims
The Eighth Amendment protects prisoners from “cruel and
unusual punishment” at the hands of prison officials. Wilson
v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429
U.S. 97, 104 (1976). The Eighth Amendment's prohibition
against cruel and unusual punishment encompasses the use
of excessive force against an inmate, who must prove
two components: (1) subjectively, that the defendant acted
wantonly and in bad faith, and (2) objectively, that the
defendant's actions violated “contemporary standards of
decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d
Cir. 1999) (internal quotations omitted) (citing Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). The key inquiry into a claim
of excessive force is “whether force was applied in a good-
faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing
Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); see also
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (“[t]he
Supreme Court has emphasized that the nature of the force
applied is the core judicial inquiry in excessive force cases
—not whether a certain quantum of injury was sustained.”).
“Accordingly, when considering the subjective element of the
governing Eighth Amendment test, a court must be mindful
that the absence of serious injury, though relevant, does not
necessarily negate a finding of wantonness.” Wynter v. Ramey,
No. 11-CV-0257 (DNH/DEP), 2013 W L 5465343, at *5
(N.D.N.Y. Sept. 30, 2013) (citations omitted).
Plaintiff has identified the time, location and individuals
involved in the alleged assault. Thus, the Court finds that
plaintiff's Eighth Amendment excessive force claims against
Copestick and Schieber survive sua sponte review and require
a response. In so ruling, the Court expresses no opinion as to
whether these claims can withstand a properly filed motion to
dismiss or for summary judgment.
2. Failure To Intervene
*5 The failure of corrections officers to employ reasonable
measures to protect an inmate from violence by others may
rise to the level of an Eighth Amendment violation. See Ayers
v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985). Moreover,
allegations that an officer failed to intervene and prevent
assaults are sufficient to state an Eighth Amendment failure
to protect claim. See Rogers v. Artus, No. 13-CV-21, 2013
WL 5175570, at *3 (W.D.N.Y. Sept. 11, 2013). To establish
liability under a failure to intervene theory, a plaintiff must
prove the use of excessive force by someone other than the
individual and that the defendant under consideration: 1)
possessed actual knowledge of the use by another of excessive
force; 2) had a realistic opportunity to intervene and prevent
the harm from occurring; and 3) nonetheless disregarded that
risk by intentionally refusing or failing to take reasonable
measures to end the use of excessive force. Curley v. Vill. of
Suffern, 268 F.3d 65, 72 (2d Cir. 2001). In order to succeed on
a claim of failure to protect, the inmate “must establish both
that a substantial risk to his safety actually existed and that the
offending [defendant] knew of and consciously disregarded
that risk.” See Walsh v. Goord, No. 07-CV-0246, 2007 WL
1572146, at *9 (W.D.N.Y. May 23, 2007) (quoting Farmer
v. Brennan, 511 U.S. 825, 837 (1970)). In addition, a failure-
to-protect claim requires a showing that prison officials acted
with “deliberate indifference” to the inmate's safety. Morales
v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir.
1988).
At this early stage of the proceeding, plaintiff has alleged
enough to require a response from Collerman to plaintiff's
claim that he failed to protect plaintiff from the assault by
Copestick and Schieber. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed motion to dismiss or for summary judgment.
3. Deliberate Indifference to Serious Medical Needs
To state an Eighth Amendment claim for medical
indifference, a plaintiff must allege that the defendant
was deliberately indifferent to a serious medical need. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective
component of an Eighth Amendment deliberate indifference
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medical claim “requires that the alleged deprivation must
be sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration, or
extreme pain exists.” Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d
550, 553 (2d Cir. 1996)) (internal quotation marks omitted).
Under the subjective element, medical mistreatment rises to
the level of deliberate indifference only when it “involves
culpable recklessness, i.e., an act or a failure to act ... that
evinces ‘a conscious disregard of a substantial risk of serious
harm.’ ” Chance v. Armstrong, 143 F. 3d 698, 703 (2d
Cir. 1998) (quoting Hathaway, 99 F.3d at 553). “Deliberate
indifference requires more than negligence but less than
conduct undertaken for the very purpose of causing harm.”
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). To
assert a claim for deliberate indifference, an inmate must
allege that (1) a prison medical care provider was aware
of facts from which the inference could be drawn that the
inmate had a serious medical need; and (2) the medical
care provider actually drew that inference. Farmer, 511 U.S.
at 837; Chance, 143 F.3d at 702. The inmate must also
demonstrate that the provider consciously and intentionally
disregarded or ignored that serious medical need. Farmer,
511 U.S. at 835. An “inadvertent failure to provide adequate
medical care” does not constitute “deliberate indifference.”
Estelle, 429 U.S. at 105-06.
In this instance, even assuming plaintiff's injuries were
sufficiently serious, plaintiff must allege facts to demonstrate
that defendants acted with a sufficiently culpable state of
mind. See Hathaway, 99 F.3d at 553. Plaintiff claims that
his medical treatment was inadequate because his ankle was
not x-rayed until he was transferred to “his next facility,”
two months after the alleged incident. See Compl. at 10.
“When the basis of a prisoner's Eighth Amendment claim
is a temporary delay or interruption in the provision of
otherwise adequate medical treatment, it is appropriate to
focus on the challenged delay or interruption in treatment
rather than the prisoner's underlying medical condition alone
in analyzing whether the alleged deprivation is, in ‘objective
terms, sufficiently serious,’ to support an Eighth Amendment
claim.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003) (citing Chance, 143 F.3d at 702). “Although a delay
in providing necessary medical care may in some cases
constitute deliberate indifference, this Court has reserved
such a classification for cases in which, for example, officials
deliberately delayed care as a form of punishment, ignored
a ‘life-threatening and fast-degenerating’ condition for three
days; or delayed major surgery for over two years.” Demata
v. New York State Corr. Dep't of Health Servs., 198 F.3d 233
(2d Cir. 1999) (internal citations omitted).
*6 Here, the complaint is void of any facts establishing
that any defendant deliberately delayed plaintiff's medical
treatment. On the day of the alleged attack, plaintiff received
medical attention and prescription medication. See Dkt. No.
1-1 at 19. Plaintiff was treated on three other occasions
in October 2013 for foot pain before undergoing x-rays
on November 14, 2013. Dkt. No. 1-1 at 20-21. During
those visits, plaintiff received ice packs, Motrin, and refused
Ibuprofen. See id. Plaintiff does not allege that his condition
deteriorated during that time. See Rodriguez v. City of New
York, 802 F.Supp. 477, 482 (S.D.N.Y. 2011) (finding that the
plaintiff did not establish that his condition worsened as a
result of a delay between his request and receipt of medical
attention). Plaintiff does not allege that he sought and was
refused medical treatment during this two month time period.
See Kee v. Hasty, No. 01 Civ. 2123, 2004 W L 807071, at
*29 (S.D.N.Y. April 14, 2004) (holding that the plaintiff's
Eighth Amendment claims were overly conclusory because
the inmate failed to specify the dates on which he was denied
proper treatment, the nature of his needs on those dates, and
the nature of the treatment that was purportedly denied by
the defendants). The complaint lacks any facts to plausibly
suggest that any defendant knew of the severity of plaintiff's
injury and the risk posed by any delay in his treatment.
Plaintiff, a diabetic, also claims that he was unable to read
or see for over one year because his eye glasses were not
replaced until over a year after the assault. See Compl. at
10. The complaint does not contain any facts suggesting that
plaintiff made any complaints or sick call requests to any
defendant related to his eyeglasses. Plaintiff also failed to
assert facts suggesting that he made any defendant “aware
of the serious harm could occur” if he was not provided
with his glasses. See Myrie v. Calvo/Calvoba, 591 F.Supp.2d
620, 628 (S.D.N.Y. 2008) (holding that the complaint did not
suggest that any defendant was deliberately indifferent to the
plaintiff's vision problems).
Plaintiff's Eighth Amendment allegations are also subject
to dismissal based upon the failure to plead personal
involvement on the part of any defendant. It is well settled
in this Circuit that “personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield,
950 F.2d 880, 885 (2d Cir. 1991)). Thus, “a Section 1983
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plaintiff must ‘allege a tangible connection between the acts
of the defendant and the injuries suffered.’ ” Austin v. Pappas,
No. 04-CV-7263, 2008 W L 857528, at *2 (S.D.N.Y. Mar.
31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986)) (other citation omitted). The complaint lacks any
facts suggesting that Copestick, Schieber, or Collerman were
involved in plaintiff's medical treatment or refused to allow
plaintiff to receive medical attention. In the absence of factual
allegations sufficient to plausibly suggest that any defendant
was personally involved, the complaint fails to state a
cognizable claim against him. Consequently, plaintiff's Eighth
Amendment claims for deliberate indifference to plaintiff's
medical needs are dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim.
C. First Amendment
1. Retaliation
Plaintiff alleges that Copestick and Schieber assaulted him in
retaliation for plaintiff's grievance against them. See Compl.
at 6,13. To state a claim of retaliation under the First
Amendment, a plaintiff must allege facts plausibly suggesting
the following: (1) the speech or conduct at issue was
“protected;” (2) the defendants took “adverse action” against
the plaintiff – namely, action that would deter a similarly
situated individual of ordinary firmness from exercising his
or her constitutional rights; and (3) there was a causal
connection between the protected speech and the adverse
action – in other words, that the protected conduct was a
“substantial or motivating factor” in the defendant’s decision
to take action against the plaintiff. Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (citing
Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). The
Second Circuit has stated that courts must approach prisoner
retaliation claims “with skepticism and particular care,” since
“virtually any adverse action taken against a prisoner by
a prison official – even those otherwise not rising to the
level of a constitutional violation – can be characterized as a
constitutionally proscribed retaliatory act.” Dawes, 239 F.3d
at 491, overruled on other grounds by Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002) (citing Flaherty v. Coughlin, 713
F.2d 10, 13 (2d Cir. 1983)); Franco v. Kelly, 854 F.2d 584,
590 (2d Cir. 1988).
*7 It is well-settled that filing a grievance is constitutionally
protected conduct. Johnson v. Eggersdorf, 8 Fed.Appx. 140,
144 (2d Cir. 2001); Graham v. R.J. Henderson, 89 F.3d
75, 80 (2d Cir. 1996). A plaintiff can establish a causal
connection that suggests retaliatory intent by showing that
his protected activity was close in time to the complained-
of adverse action. Espinal v. Goord, 558 F.3d 119, 129 (2d
Cir. 2001) (citations omitted). While there is no “bright line”
defining the limits of the temporal relationship, courts in the
Circuit have held that an adverse action taken within three
months after a protected activity can reasonably be perceived
as retaliatory. See Gorman-Bakos v. Cornell Coop. Extn. of
Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001); see also
Ashok v. Barnhart, No. 01-CV-1311, 289 F.Supp.2d 305, 314
(E.D.N.Y. Oct. 30, 2003) (the interval between a protected
activity and an adverse action that results in a finding of
retaliation is generally no more than several months).
At this juncture, the Court finds that plaintiff's retaliation
claims against Copestick and Schieber survive sua sponte
review and require a response. In so ruling, the Court
expresses no opinion as to whether these claims can withstand
a properly filed motion to dismiss or for summary judgment.
2. Religious Claims
Plaintiff alleges that the defendants violated his religious
rights because he was unable to participate in Ramadan and
denied his religious meals as a direct result of the false
misbehavior report. Dkt. No. 1 at 5-6.
Prisoners have long been understood to retain some measure
of the constitutional protection afforded by the First
Amendment's Free Exercise Clause. See Ford v. McGinnis,
352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417
U.S. 817, 822 (1974)). “Balanced against the constitutional
protections afforded prison inmates, including the right to
free exercise of religion, [however,] are the interests of
prison officials charged with complex duties arising from
administration of the penal system.” Id. (citing Benjamin
v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)). To state
a First Amendment Free Exercise claim, a plaintiff must
allege that (1) the practice asserted is religious in the person's
scheme of beliefs, and that the belief is sincerely held;
(2) the challenged practice of the prison officials infringes
upon the religious belief; and (3) the challenged practice
of the prison officials furthers some legitimate penological
objective. Farid v. Smith, 850 F.2d 917, 926 (2d Cir.
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1988) (citations omitted). A prisoner “must show at the
threshold that the disputed conduct substantially burdens his
sincerely held religious beliefs.” Salahuddin v. Goord, 467
F.3d 263, 274–75 (2d Cir. 2006) (citing Ford, 352 F.3d
at 591). 8 A religious belief is “sincerely held” when the
plaintiff subjectively, sincerely holds a particular belief that
is religious in nature. Ford, 352 F.3d at 590. A prisoner's
sincerely held religious belief is “substantially burdened”
where “the state puts substantial pressure on an adherent
to modify his behavior and to violate his beliefs.” Jolly
v. Coughlin, 76 F.3d 468, 476–77 (2d Cir. 1996). Once
a plaintiff establishes that a sincerely held religious belief
has been substantially burdened, “[t]he defendants then bear
the relatively limited burden of identifying the legitimate
penological interests that justify the impinging conduct;
the burden remains with the prisoner to show that these
articulated concerns were irrational.” Salahuddin, 467 F.3d at
275 (quoting Ford, 352 F.3d at 595) (punctuation omitted).
8 The Second Circuit has yet to decide whether the
“substantial burden” test survived the Supreme
Court's decision in Emp't Div. v. Smith, 494 U.S
872, 887 (1990), in which the Court suggested
that application of the test “puts courts in ‘the
unacceptable business of evaluating the relative
merits of differing religious claims.’ ” Ford, 352
F.3d at 592 (quoting Emp't Div., 494 U.S. at
887); see also Williams v. Does, 639 Fed.Appx.
55, 56 (2d Cir. May 6, 2016) (“We have not yet
decided whether a prisoner asserting a free-exercise
claim must, as a threshold requirement, show
that the disputed conduct substantially burdened
his sincerely held religious beliefs.”); Holland
v. Goord, 758 F.3d 215, 220-21 (2d Cir. 2014)
(declining to decide whether a prisoner must show,
as a threshold matter, that the defendants' conduct
substantially burdened his sincerely held religious
beliefs in connection with a First Amendment free
exercise claim). In the absence of any controlling
precedent to the contrary, I have applied the
substantial-burden test in this matter.
*8 In this case, plaintiff has not alleged who issued the
misbehavior report and it is not attached to the complaint.
An inmate “has no general constitutional right to be free
from being falsely accused in a misbehavior report.” Boddie
v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997). While a
false misbehavior report may give rise to a claim under
§ 1983 “when done in retaliation for the exercise of a
constitutional right,” Willey v. Kirkpatrick, 801 F.3d 51, 63
(2d Cir. 2015), here there is no such allegation. While the
deprivation of religious meals in SHU may be sufficient to
state a claim, see Williams v. Does, 639 Fed.Appx. 55, 56
(2d Cir. 2016); Skates v. Shusda, No. 9:14-CV-1092 (TJM/
DEP), 2016 WL 3882530, at **4-5 (N.D.N.Y. May 31,
2016), here there is no indication that the defendants had
any personal involvement in that conduct. The allegations,
without more, fail to plausibly suggest that any defendant
burdened plaintiff's right to freely practice his religion. Thus,
plaintiff's First Amendment claims against are dismissed
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
D. Fourteenth Amendment
1. Equal Protection/Discrimination
Plaintiff claims that the September 30, 2013 assault was
racially motivated. See Compl. at 6, 12. “When verbal
harassment and simultaneous physical abuse ... are considered
together, [courts] have little doubt concluding that plaintiff's
allegations [are] sufficient to state a § 1983 claim for
discrimination on the basis of race. Cole v. Fischer, 379
Fed.Appx. 40, 43 (2d Cir. 2010). “Under the Fourteenth
Amendment's Equal Protection clause, a plaintiff may be able
to recover for a physical assault that would not meet the
objective threshold for Eighth Amendment excessive force
claims, if the defendant's conduct was motivated by racial
or religious discrimination.” Bhuiyan v. Wright, No. 9:06-
CV-409 ATB, 2011 WL 1870235, at *9 (N.D.N.Y. May 13,
2011) (citation omitted).
At this juncture, plaintiff has sufficiently plead a Fourteenth
Amendment equal protection claim to warrant a response
from Copestick and Schieber. In so ruling, the Court expresses
no opinion as to whether these claims can withstand a
properly filed motion to dismiss or for summary judgment.
2. Due Process
Plaintiff claims that defendants violated his due process
rights when they failed to replace plaintiff's eyeglasses.
See Compl. at 10. Plaintiff also asserts that his Fourteenth
Amendment rights were violated because he was improperly
confined to the SHU without a hearing as a result of a
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false misbehavior report. See id. at 10. During his SHU
confinement, was allegedly unable to participate in Ramadan,
denied his religious meals, denied parole, and excluded from
mental health programs. See id.
a. Property Claim
The Supreme Court has held that the negligent or intentional
deprivation of prisoner's property may not be the basis for
constitutional claims if sufficient post deprivation remedies
are available to address the claim. Hudson v. Palmer, 468 U.S.
517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541
(1981)); Davis v. New York, 311 Fed.Appx. 397, 400 (2d Cir.
2009) (An alleged loss of property, “whether intentional or
negligent – will not support a due process claim redressable
under § 1983 if ‘adequate state post-deprivation remedies
are available.’ ”) (quoting Hudson, 468 U.S. 533). “New
York in fact affords an adequate post-deprivation remedy in
the form of, inter alia, a Court of Claims action.” Jackson
v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Because plaintiff
has access to adequate state law remedies, he has not been
deprived of property without due process of law and therefore
cannot state a claim for relief pursuant to Section 1983. See
Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per
curiam); see also Aziz Zarif Shabazz v. Pico, 994 F.Supp. 360,
473-74 (S.D.N.Y. 1998) (dismissing the plaintiff's claim that
defendants destroyed his eyeglasses in violation of his due
process rights). Thus, plaintiff's due process claims related to
his eyeglasses are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.
b. SHU Confinement
*9 To establish a due process claim, plaintiff must establish:
“(1) that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of
insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d
Cir. 2001) (citation and internal quotation marks omitted).
In this case plaintiff alleges that the false misbehavior report
resulted in a SHU sentence. 9
9 The complaint contains conflicting factual
allegations related to the length of plaintiff's SHU
confinement. Plaintiff claims that after “one month
of being housed in SHU,” he was released. See
Compl. at 5. In the Third Cause of Action, plaintiff
claims that he served “over 60 days in SHU.” See
id. at 9.
A prisoner “has a liberty interest that is implicated by
SHU confinement if it ‘imposes [an] atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life.’ ” J.S. v. T'Kach, 714 F.3d 99, 106 (2d
Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484,
(1995)); see also Palmer v. Richards, 364 F.3d 60, 64
(2d Cir. 2004). In making this determination courts are to
consider, “among other things, the duration and conditions
of confinement.” J.S., 714 F.3d at 106; Davis v. Barrett, 576
F.3d 129, 133 (2d Cir. 2009). The conditions of confinement
are to be considered “in comparison to the hardships endured
by prisoners in general population, as well as prisoners in
administrative and protective confinement, assuming such
confinements are imposed in the ordinary course of prison
administration.” Davis, 576 F.3d at 134; Palmer, 364 F.3d at
66 n.4.
Although the Second Circuit has “explicitly avoided” creating
“a bright line rule that a certain period of SHU confinement
automatically fails to implicate due process rights,” the Court
has established guidelines. Palmer, 364 F.3d at 65. W here the
plaintiff is confined for “an intermediate duration –between
101 and 305 days – ‘development of a detailed record’ of
the conditions of the confinement relative to ordinary prison
conditions is required.’ ” Id. (quoting Colon v. Howard,
215 F.3d 227, 234 (2d Cir. 2000)). While confinements for
less than 101 days “under normal SHU conditions may not
implicate a prisoner's liberty interest,” such confinements
“could constitute atypical and significant hardships if the
conditions were more severe than the normal SHU conditions
of Sealy or a more fully developed record showed that even
relatively brief confinements under normal SHU conditions
were, in fact, atypical.” Palmer, 364 F.3d at 65; see Davis,
576 F.3d at 133. 10
10 The Second Circuit has noted that “[i]n the absence
of a detailed factual record, we have affirmed
dismissal of due process claims only in cases where
the period of time spent in SHU was exceedingly
short –less than the 30 days that the Sandin plaintiff
spent in SHU—and there was no indication that
the plaintiff endured unusual SHU conditions.”
Palmer, 364 F.3d at 65-66; see Davis, 576 F.3d
at 133. Absent allegations in the complaint that
the conditions of confinement were in some way
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atypical, however, many courts in this Circuit have
granted motions to dismiss claims by plaintiffs
with confinement exceeding thirty days when the
plaintiffs failed to allege that the conditions of
confinement were in some way atypical. See, e.g.,
Acevedo v. Fischer, No. 12-CV-6866, 2014 WL
5015470 at *15 (S.D.N.Y. Sept. 29, 2014) (citing
cases involving confinements of between forty and
fifty days which were dismissed for failure to allege
a protected liberty interest because there were no
allegations of unusual confinement).
*10 In this case, the duration of the confinement, 30 to
60 days, “was not long enough to constitute an atypical and
significant deprivation by itself,” and the Court therefore must
“look to the conditions of confinement.” Palmer, 364 F.3d at
66; see also Davis, 576 F.3d at 133. Plaintiff claims that while
he was confined in the SHU, he was unable to participate
in Ramadan, denied his religious meals, denied parole, and
excluded from his mental health program. See Compl. at 5,
10; Dkt. No. 1-1 at 1.
It is well established that prisoners do not have a
constitutional right to parole. Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “Where a state
has created a statutory scheme for parole, the Due Process
Clause protects prisoners insofar as they ‘have a legitimate
expectancy of release that is grounded in the state's statutory
scheme.’ ” Barna v. Travis, 239 F.3d 169, 170–72 (2d Cir.
2001) (per curiam) (citing Greenholtz, 442 U.S. at 11–13).
“New York's parole scheme is not one that creates in any
prisoner a legitimate expectancy of release.” Barna, 239 F.3d
at 171. Plaintiff has also failed to plead that his inability to
participate in mental health programs impacted a protected
liberty interest. See Nieves v. Prack, No. 6:15-CV-6101, 2016
W L 1165820, at *4 (W.D.N.Y. March 24, 2016) (“[Plaintiff's]
claim that his inability ... to participate in various educational,
vocational, rehabilitative or self-help programs might have
hindered his ability to receive an early parole or release
is ... speculative and fails to allege interference with a
protected liberty interest.”) (citations omitted). Here, the
complaint lacks facts establishing when, how many times,
and who deprived plaintiff of the right to attend his mental
health program. With respect to plaintiff's religious claims,
courts have found that the deprivation of communal religious
services does not constitute an atypical and significant
hardship. See Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998)
(finding that eighteen days in administrative segregation,
including loss of exercise and access to religious services, did
not constitute atypical and significant hardship); Holland v.
Goord, No. 05-CV-6295, 2006 WL 1983382, at *7 (W.D.N.Y.
July 13, 2006) (holding the inability to attend Muslim services
and celebrate the end of Ramadan while confined in the SHU
for seventy-seven days is not an atypical hardship).
Even assuming that plaintiff had pled facts sufficient to show
that his confinement imposed an atypical and significant
hardship, however, and therefore pled the existence of a valid
liberty interest, the complaint fails to state a claim based upon
the Fourteenth Amendment and due process. It is well settled
that “a prison inmate has no general constitutional right to
be free from being falsely accused in a misbehavior report.”
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). In
this case, a hearing regarding the charges was held within two
days of plaintiff's receipt of the misbehavior report. Plaintiff
does not allege that he was denied any procedural due process
during that hearing. Moreover, the complaint lacks facts
suggesting that any named defendant issued the misbehavior
report or presided over the disciplinary hearings. Based upon
the aforementioned, plaintiff's Fourteenth Amendment claims
are dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state
a claim upon which relief may be granted. See Livingston v.
Kelly, 561 F.Supp.2d 329, 332 (W.D.N.Y. 2008) (dismissing
plaintiff's false-report claims because the plaintiff failed to
allege that the disciplinary hearings on the reports did not
meet constitutional due process standards).
E. Failure to Respond to Grievances and Failure to
Investigate
*11 Plaintiff also claims that his constitutional rights were
violated because the facility grievance program is “never
followed.” See Compl. at 11. There is no constitutional
right of access to the established inmate grievance program.
Davis v. Buffardi, No. 9:01-CV-0285 (PAM/GJD), 2005 WL
1174088, at *3 (N.D.N.Y. May 4, 2005) (“[p]articipation
in an inmate grievance process is not a constitutionally
protected right”); Shell v. Brzezniak, 365 F.Supp.2d 362,
369-70 (W.D.N.Y. 2005) (“[i]nmate grievance programs
created by state law are not required by the Constitution and
consequently allegations that prison officials violated those
procedures does not give rise to a cognizable § 1983 claim”);
Cancel v. Goord, No. 00. Civ. 2042, 2001 WL 303713, at *3
(S.D.N.Y. Mar. 29, 2001) (“inmate grievance procedures are
not required by the Constitution and therefore a violation of
such procedures does not give rise to a claim under § 1983”);
Mimms v. Carr, No. 09-CV-5740, 2011 W L 2360059, at
*10 (E.D.N.Y. June 9, 2011) (“It is well-established that
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prison grievance procedures do not create a due-process-
protected liberty interest.”) (citing cases). Simply stated, there
is no underlying constitutional obligation to afford an inmate
meaningful access to the internal grievance procedure, or to
investigate and properly determine any such grievance.
To the extent that plaintiff attempts to assert a separate
constitutional claim based upon the Inspector General's
failure to investigate, the law is also clear that inmates do
not enjoy a constitutional right to an investigation of any
kind by government officials. Bernstein v. New York, 591
F.Supp.2d 448, 460 (S.D.N.Y. 2008) (collecting cases); Torres
v. Mazzuca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y. 2003)
(Prisoners do not have a due process right to a thorough
investigation of grievances.); DeShaney v. Winnebego Soc.
Servs., 489 U.S. 189, 196 (1989) (The Due Process Clause
confers no right to governmental aid, even where that aid may
be necessary to secure life, liberty, or property interests of
which the government itself may not deprive the individual);
Pine v. Seally, No. 9:09-CV-1198, 2011 W L 856426, at *9
(N.D.N.Y. Feb. 4, 2011) (“the law is ... clear that inmates do
not enjoy a constitutional right to an investigation of any kind
by government officials”) (citing Bernstein, 591 F.Supp.2d at
460).
In this regard, plaintiff's claims do not involve a constitutional
violation and are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.
F. Cause of Action for Criminal Charges/Perjury
“New York does not recognize a common law cause of action
for [...] perjury.” Harris v. Summers, No. 5:14-CV-0013
(LEK/DEP), 2014 W L 1340032, at *5 (N.D.N.Y. Apr. 3,
2014) (citing Carvel v. Ross, No. 12-CV-0722, 2011 W L
856283, at *12 (S.D.N.Y. Feb. 16, 2011) (dismissing the
plaintiff's perjury claim because “there [is] no private right
of action” for perjury)). Moreover, plaintiff's claim is not
actionable because it is well-settled that a private citizen
does not have a constitutional right to bring a criminal
complaint against another individual. Harper v. New York
Child Welfare Comm'rs, No. 3:12-CV-0646 (NAM/DEP),
2012 WL 3115975, at *4 (N.D.N.Y. May 14, 2012) (citing
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).
Consequently, plaintiff's request to charge defendants with
“perjury” is dismissed for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
G. Injunctive Relief Against DOCCS
Plaintiff demands injunctive relief directing DOCCS to
require “each officer” to wear body cameras to prevent future
assaults and other related injunctive relief. See Compl. at
10-12. Plaintiff is presently confined at Mid-State C.F. and
therefore, plaintiff's request for injunctive relief involving
changes to the operation of security at Elmira C.F., is
dismissed as moot. See Edwards v. Horn, No. 10 Civ.
6194, 2012 WL 760172, at *23 (S.D.N.Y. March 8, 2012)
(dismissing the plaintiff's claim for injunctive relief because
the plaintiff had been released from prison).
*12 Even assuming plaintiff's request is broader and
intended to encompass all DOCCS facilities, the request is
nonetheless improper and subject to dismissal. The PLRA
provides “[p]rospective relief in any civil action with respect
to prison conditions shall extend no further than necessary
to correct the violation of the Federal right of the particular
plaintiff.” 18 U.S.C. § 3626(a)(1)(A). “[A] proposed order
directing the installation of securities cameras – is beyond the
narrow scope permitted by the PLRA.” Barrington v. New
York, 806 F.Supp.2d 730, 750 (S.D.N.Y. 2011) (dismissing
the plaintiff's request for injunctive relief seeking an order
directing Green Haven to install security cameras as overly
broad and unnecessary to correct the alleged past violations
of his rights). Accordingly, plaintiff's request for injunctive
relief is dismissed.
VI. Conclusion
ORDERED that plaintiff's in forma pauperis application
(Dkt. No. 2) is GRANTED; 11 and it is further
11 Plaintiff should note that, although the Court
has granted his application to proceed in forma
pauperis, he will still be required to pay fees that
he may incur in this action, including copying and/
or witness fees.
ORDERED that the Clerk provide the Superintendent of the
facility, designated by plaintiff as his current location, with a
copy of plaintiff's authorization form, and notify the official
that this action has been filed and that plaintiff is required to
pay the entire statutory filing fee of $350.00 pursuant to 28
U.S.C. § 1915; and it is further
ORDERED that the Clerk of the Court provide a copy of
plaintiff's inmate authorization form to the Financial Deputy
of the Clerk's Office; and it is further
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ORDERED that the following claims are DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted: (1) plaintiff's § 1983 claims for
monetary damages against DOCCS; (2) constitutional claims
based upon the failure to adhere to the grievance policy and
investigate; and (3) plaintiff's claims related to perjury and
filing criminal charges against defendants; and it is further
ORDERED that the following claims are DISMISSED
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted: (1) Eighth Amendment claims against
defendants for deliberate indifference to plaintiff's serious
medical needs; (2) First Amendment freedom of religion
claims; (3) Fourteenth Amendment due process claims; and
(4) claims for injunctive relief against DOCCS 12 ; and it is
further
12 If plaintiff wishes to pursue any claim dismissed
without prejudice, he is advised to that, if accepted
for filing, any amended complaint will entirely
replace the original complaint and incorporation of
prior claims is not permitted.
ORDERED that DOCCS is DISMISSED as a defendant
herein; and it is further
ORDERED that the following claims survive the Court's
sua sponte review under 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) and require a response: (1) the Eighth
Amendment use of excessive force claims against defendants
Copestick and Schieber; (2) the Eighth Amendment failure-
to-intervene claim against defendant Collerman; (3) the First
Amendment retaliation claims against defendants Copestick
and Schieber; and (3) the Fourteenth Amendment equal
protection claims against Copestick and Schieber; and it is
further
ORDERED, that the Clerk shall issue summons and forward
them, along with copies of the Complaint, to the United States
Marshal for service upon the remaining defendants. The Clerk
shall forward a copy of the Summons and Complaint to the
Office of the New York State Attorney General, together with
a copy of this Decision and Order; and it is further
*13 ORDERED, that a response to the complaint be filed
by the remaining defendants, or their counsel, as provided for
in the Federal Rules of Civil Procedure;
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was served on all
opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper
certificate of service will be stricken from the docket.
Plaintiff must comply with any requests by the Clerk’s Office
for any documents that are necessary to maintain this action.
All parties must comply with Local Rule 7.1 of the Northern
District of New York in filing motions. Plaintiff is also
required to promptly notify the Clerk’s Office and all
parties or their counsel, in writing, of any change in his
address; their failure to do so will result in the dismissal
of his action; and it is further
ORDERED, in accordance with Lebron v. Sanders, 557 F.3d
76 (2d Cir. 2009), the Clerk of the Court is directed to
provide plaintiff with copies of opinions from Westlaw and
the Federal Appendix cited in this Decision and Order; and
it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Decision and Order on plaintiff in accordance with the
Local Rules.
Dated: October 26, 2016.
All Citations
Not Reported in Fed. Supp., 2016 WL 6267968
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Houston v. Collerman
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Filings (1)
Title PDF Court Date Type
1. Docket 9:16-CV-01009
Houston v. Collman et al
— N.D.N.Y. Aug. 15, 2016 Docket
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Houston v. Collerman
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History
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