Hanyon v. The State of New York

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
STEVEN J. HANYON,
Plaintiff,
v. 	3:26-cv-0168
(AJB/CBF)
THE STATE OF NEW YORK,
Defendants.
_______________________________________________
APPEARANCES:
STEVEN J. HANYON
Plaintiff, pro se
22 Weber Road
Port Crane, NY 13833
CARLA B. FREEDMAN, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff
Steven J. Hanyon (“Plaintiff”), Dkt. No. 1, along with a motion to proceed in forma pauperis
(“IFP”), Dkt. No. 6. For the reasons set forth below, the undersigned recommends Plaintiff’s
complaint be dismissed.
II. 	IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. Dkt.
No. 6. Upon review, Plaintiff’s IFP application demonstrates economic need. See id. Therefore,
he is granted permission to proceed IFP.
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III. 	BACKGROUND
Plaintiff commenced this action by filing a complaint dated February 3, 2026. See Dkt.
No. 1.1 The pleading’s caption lists one defendant, “The State of New York.” Id. The one page
“complaint” states, in full:
I tried filing a Order of Protection against State and Local Law
Enforcement for practicing Brutality because I got shot and my
email was tampered with and I was falsely imprisoned for it. During
the time I was taken to jail I also had a hearing with the Department
of Labor like I am not able to receive any funds and stuck with a
Public Defender because I have no money to hire an Attorney and
the Public Defender excuse is I supposedly have a disability and I
can not represent myself. 	I would like to have no probation for a
Crime that I did not commit and suppose to be Protected in Civil
Actions and Protected because I am related to the foundation of our
country.
Id. Plaintiff has not submitted a civil cover sheet or proposed summonses. See generally,
Docket. Plaintiff has also submitted to the Court several other filings, some labeled as motions,
see, e.g., Dkt. Nos. 9, 10, 12, another an amended petition, Dkt. No. 14, and objections, Dkt. No.
17, and other submissions entirely lacking a caption, see, e.g., Dkt. Nos. 13, 15.
III. 	LEGAL STANDARD
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis
complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. See 28
U.S.C. § 1915A(b)(1)-(2); § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when
1 Citations to Plaintiff’s submissions will be to the pagination generated by CM/ECF, the Court’s
electronic filing system. Excerpts from the record are reproduced exactly as they appear in the
original and errors in spelling, punctuation, and grammar have not been corrected.
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the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines
at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in
original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); see also Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when
either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an
indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil
Procedure. See, e.g., Cole v. Smrtic, No. 1:24-CV-00847 (MAD/CFH), 2024 WL 4870495, at *2
(N.D.N.Y. Nov. 21, 2024) (explaining, “special solicitude for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure . . . .”)
(internal quotations and citation omitted), report and recommendation adopted, 2025 WL
247901 (N.D.N.Y. Jan. 21, 2025). To survive dismissal for failure to state a claim, a complaint
must contain a short and plain statement of the claim showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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In determining whether a complaint states a claim upon which relief may be granted, “the
court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citations omitted). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)
(citation and internal quotation marks omitted). However, an opportunity to amend is not
required where “the problem with [the plaintiff’s] causes of action is substantive” such that
“better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
V. 	ANALYSIS
Upon review, even afforded a liberal construction, Plaintiff’s complaint fails to comply
with the pleading requirements set forth in the Federal Rules of Civil Procedure and fails to state
a claim upon which relief may be granted. Accordingly, the undersigned recommends dismissal.
“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.” Lewis v. New
York State Bd. of Elections, No. 8:24-CV-00849 (GTS/CFH), 2024 WL 4910561, at *4
(N.D.N.Y. Sept. 30, 2024) (additional quotations and citations omitted), report and
recommendation adopted, 2024 WL 4689022 (N.D.N.Y. Nov. 6, 2024). A complaint that fails to
comply with the Federal Rules’ pleading requirements “presents far too a heavy burden in terms
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of defendants’ duty to shape a comprehensive defense and provides no meaningful basis for the
Court to assess the sufficiency of their claims,” and may properly be dismissed by the Court.
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996); see also, e.g., Gosier v. Collins, No.
6:23-CV-1485 (DNH/TWD), 2024 WL 1016392, at *2 (N.D.N.Y. Mar. 8, 2024), report and
recommendation adopted, 2024 WL 1307035 (N.D.N.Y. Mar. 27, 2024).
First, Rule 8 of the Federal Rules of Civil Procedure requires a pleading contain, inter
alia, “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”
Fed. R. Civ. P. 8(a)(2). “The 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, 2024 WL 4870495, at *2 (quoting Fed. R.
Civ. P. 8(d)). Therefore, 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).
Next, as relevant here, Rule 10 of the Federal Rules of Civil Procedure provides “[a]
party must state its claims or defenses in numbered paragraphs, each limited as far as practicable
to a single set of circumstances . . . . 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. Rule 10 serves “to provide an easy mode of
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identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189 F.R.D. at
55 (internal quotations and citation omitted).
Here, Plaintiff’s complaint does not provide a “short and plain statement of the claim
showing that the pleader is entitled to relief” and lack numbered paragraphs, limited as far as
practicable to a single set of circumstances. Fed. R. Civ. P. 8(a), 10; see generally, Dkt. No. 1.
Plaintiff’s pleading, while short, is disjointed and so “otherwise unintelligible that its true
substance, if any, is well disguised.” Salahuddin, 861. F.2d at 42; see also Dkt. No. 1.
Moreover, it is entirely unclear what relief Plaintiff seeks. See Dkt. No. 1. As a result, it is not
possible for the Court to make sense of his claim, if any, nor would the complaint provide
sufficient notice to the defendants of any claim asserted against them.
Additionally, Plaintiff has not signed the complaint. See Dkt. No. 1. Thus, the complaint
violates Federal Rule of Civil Procedure 11(a). See Fed. R. Civ. P. 11(a) (“Every pleading . . .
must be signed by . . . a party personally if the party is unrepresented.”). Accordingly, the Court
recommends dismissing the complaint because it is not acceptable under the Federal Rules of
Civil Procedure.2
2 The Court notes Plaintiff has been previously apprised of the pleading requirements set forth in
the Federal Rules of Civil Procedure on multiple occasions. See Hanyon v. Express Auto Credit
Corp., No. 3:23-CV-1640 (MAD/ML), 2024 WL 248586, at *4-5 (N.D.N.Y. Jan. 22, 2024)
(recommending dismissal of the action under Rules 8 and 10 of the Federal Rules of Civil
Procedure and, to the extent Plaintiff attempted to bring a claim pursuant to 42 U.S.C. § 1983,
for failure to state a claim because failed to allege the involvement of a state actor and the State
of New York was immune from suit pursuant to the Eleventh Amendment), report-
recommendation adopted, 2024 WL 4783943 (N.D.N.Y. Nov. 14, 2024); see also Hanyon v.
United States, No. 3:25-CV-0212 (BKS/TWD), 2025 WL 1610574, at *4-5 (N.D.N.Y. Apr. 15,
2025), report and recommendation adopted, 2025 WL 1502738 (N.D.N.Y. May 27, 2025);
Hanyon v. Linkedin, No. 3:25-CV-472 (AJB/MJK), 2025 WL 1234156, at *3-4 (N.D.N.Y. Apr.
29, 2025), report and recommendation adopted, 2025 WL 1482324 (N.D.N.Y. May 23, 2025).
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In any event, Plaintiff’s complaints fail to state a claim upon which relief may be granted.
28 U.S.C. § 1915. Even when liberally construed, the complaints lack any basis in law or fact
and set forth “no cognizable avenue for relief.” Georges v. Rathner, No. 1:17-CV-1246
(DNH/CFH), 2017 WL 8230677, at *2 (N.D.N.Y. Dec. 22, 2017), report-recommendation
adopted, 2018 WL 1353058 (N.D.N.Y. Mar. 15, 2018); Georges v. Hatser, No. 1:17-CV-1243
(GTS/CFH), 2018 WL 816846, at *3 (N.D.N.Y. Jan. 2, 2018) (“[The] plaintiff has not provided
sufficient facts for this Court to assess [the] plaintiff’s complaint, as plaintiff has given no
context for her general statements . . . .”), report-recommendation adopted, 2018 WL 813502
(N.D.N.Y. Feb. 9, 2018); Ehlers v. C.I.A., No. 6:15-CV-387 (MAD/ATB), 2015 WL 3637431, at
*3 (N.D.N.Y. June 10, 2015) (“[The p]laintiff’s complaint does not state a valid claim for which
relief can be granted and lacks substance.”); Ying Li v. City of New York, 246 F. Supp. 3d 578,
598 (E.D.N.Y. 2017) (“Pleadings that do not differentiate which defendant was involved in the
unlawful conduct are insufficient to state a claim.”).
Furthermore, The State of New York is immune from suit. “As a general rule, state
governments may not be sued in federal court unless they have waived their Eleventh
Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment
immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). New York has not waived its
Eleventh Amendment immunity to suit in federal court. Thus, dismissal is also warranted under
28 U.S.C. § 1915.
As previously stated, before dismissing a pro se complaint or any part of the complaint
sua sponte, the Court should generally afford the plaintiff an opportunity to amend at least once;
however, leave to re-plead may be denied where any amendment would be futile. Ruffolo, 987
F.2d at 131 (2d Cir. 1993). Here, out of an abundance of caution and in deference to Plaintiff’s
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pro se status, the undersigned recommends the action be dismissed with leave to amend to cure
the defects as stated above.
The Court advises Plaintiff that should he be permitted to amend, the pleading must
clearly be labeled “Amended Complaint” and bear the docket number, “3:26-cv-0168.” The
pleading must be signed and comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Plaintiff must set forth all of the claims he intends to assert and must demonstrate
that a case or controversy exists between the Plaintiff and the Defendant which Plaintiff has a
legal right to pursue and over which this Court has jurisdiction. He must clearly set forth the
facts that give rise to the claims, including the dates, times, and places of the alleged underlying
acts. Any amended complaint must be a wholly integrated and complete pleading that does not
rely upon or incorporate by reference any pleading or document previously filed with the Court.
See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established
that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”)
(internal quotation marks omitted). Piecemeal pleadings are not permitted. Of course, Plaintiff
may also pursue his claims in state court if appropriate.
VI. 	CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 6) is
GRANTED;3 and it is further
RECOMMENDED that Plaintiff’s complaint (Dkt. Nos. 1) be DISMISSED; and it is
further
3 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he
may incur in this action, including copying and/or witness fees.
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ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation
and Order, along with copies of the unpublished decisions cited herein in accordance with the
Second 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.4 Such objections shall be filed with the Clerk of
the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)
(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: April 13, 2026
Syracuse, New York
4 If you are proceeding pro se and are served with this Report-Recommendation and Order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Report-Recommendation and Order was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
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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.
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§ 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).
“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
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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. 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
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*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 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
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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 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
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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 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
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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 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
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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, Not Reported in Fed. Supp. (2025)
2025 WL 247901
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 247901
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, Interim Montgomery County Judge; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; Honorable Felix Catena, Retired Administrative
Law Judge; and Samuel V. Maxwell, Esq., Assistant District Attorney, Defendants.
1:24-CV-847 (MAD/PJE)
|
Signed January 21, 2025
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New York 12010, Plaintiff pro se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Plaintiff commenced this action on May 6, 2024, asserting that Defendants violated his due process and speedy trial rights,
and that he received ineffective assistance of counsel in an underlying state criminal action. See Dkt. No. 1. In a Report-
Recommendation and Order dated November 21, 2024, Magistrate Judge Hummel granted Plaintiff's request to proceed in
forma pauperis and conducted an initial review of the complaint. See Dkt. No. 8. In the Report-Recommendation and Order,
Magistrate Judge Hummel concluded that, in addition to the complaint being subject to dismissal for failure to comply with Rule
8 of the Federal Rules of Civil Procedure, Plaintiff's due process, speedy trial, and ineffective assistance of counsel claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994), because Plaintiff's underlying state court conviction has not been reversed on
direct appeal or otherwise expunged. See id. at 8-10. Moreover, the Report-Recommendation and Order recommended dismissal
of the claims against Defendants Smrtic, Coffinger, and Catena since they are barred by absolute judicial immunity. See id.
at 10-12. To the extent Plaintiff is attempting to assert a claim against the Appellate Division, Third Department, Magistrate
Judge Hummel found that the claim is barred by Eleventh Amendment immunity because the Appellate Division “ ‘is merely an
agency or arm of New York State.” Id. at 12-13 (quotation omitted). Finally, Magistrate Judge Hummel recommended that the
claims against Defendant Maxwell be dismissed because he is protected by prosecutorial immunity. See id. at 13-14. Plaintiff
has not objected to the Report-Recommendation and Order.
When a party files specific objections to a magistrate judge's report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). However, when a party files “[g]eneral or conclusory objections, or objections which merely recite
the same arguments [that he] presented to the magistrate judge,” the court reviews those recommendations for clear error only.
O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After
the appropriate review, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
In the present matter, the Court finds that Magistrate Judge Hummel correctly determined that Plaintiff's complaint must be
dismissed. Plaintiff's complaint makes clear that his claims stem from alleged violations of his rights that occurred during an
underlying state criminal case. See Dkt. No. 1 at 3-4; Dkt. No. 7 at 4. Since Plaintiff's criminal conviction has not been reversed,
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expunged by executive order, or called into question by a federal court's issuance of a writ of habeas corpus, Plaintiff's claims
brought pursuant to Section 1983 are barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Strong v. Watson, No. 1:22-cv-552,
2023 WL 8439445, *14-15 (W.D.N.Y. Sept. 26, 2023) (dismissing the plaintiff's claims of malicious prosecution, conspiracy,
speedy trial violations, denial of due process, and denial of equal protection under Heck because the claims “all seek to impugn
the validity of his underlying state court criminal charges”).
*2 Magistrate Judge Hummel also correctly determined that, in the alternative, the claims against the named Defendants
are subject to dismissal based on absolute judicial and prosecutorial immunity. The allegations against Defendants Smrtic,
Coffinger, and Catena make clear that these individuals were acting in their judicial capacities and that their actions were not
taken in the absence of jurisdiction. Accordingly, they are entitled to absolute judicial immunity. See Ceparano v. Southampton
Just. Ct., 404 Fed. Appx. 537, 539 (2d Cir. 2011). As to Defendant Maxwell, Plaintiff has alleged that he withheld exculpatory
evidence in the underlying criminal matter. Since this conduct clearly involves “prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process,’ ” Defendant Maxwell is entitled to absolute prosecutorial immunity. See Barr
v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Additionally, to the
extent Plaintiff has attempted to assert claims against the Appellate Division, Third Department, the claims must be dismissed
because the Third Department is an arm of New York State and is entitled to Eleventh Amendment immunity. See Benyi v. New
York, No. 3:20-cv-1463, 2021 WL 1406649, *5 (N.D.N.Y. Mar. 23, 2021) (citation omitted).
Finally, the Court agrees with Magistrate Judge Hummel that, because it is clear that the issues with Plaintiff's complaint are
substantive and not something that can be corrected by better pleading, Plaintiff will not be afforded an opportunity to amend
his complaint. See Phillips v. New York, No. 5:13-cv-927, 2013 WL 5703629, *5 (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's November 21, 2024, Report-Recommendation and Order (Dkt. No. 8) is ADOPTED
in its entirety for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without leave to amend; and the Court further
ORDERS that Plaintiff's motion for permission to file electronically (Dkt. No. 4) and motion to appoint counsel (Dkt. No. 5)
are DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants’ favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 247901
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lewis v. New York State Board of Elections, Not Reported in Fed. Supp. (2024)
2024 WL 4910561
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4910561
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Scott Phillip LEWIS, Plaintiff,
v.
NEW YORK STATE BOARD OF ELECTIONS, Defendant.
Scott Phillip Lewis, Plaintiff,
v.
New York State Board of Elections, Defendant.
No. 8:24-CV-00849 (GTS/CFH), No. 8:24-CV-01036 (GTS/CFH)
|
Signed September 30, 2024
Attorneys and Law Firms
Scott Phillip Lewis, 1936 Saranac Avenue, #3, PMB 411, Lake Placid, New York 12946, Plaintiff pro se.
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, UNITED STATES MAGISTRATE JUDGE
I. In Forma Pauperis
*1 Plaintiff pro se Scott Lewis (“plaintiff”) 1 purported to commence this action on July 4, 2024, by filing a complaint. See
Dkt. No. 1 (“Compl.”). In lieu of paying this Court's filing fee, 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
1 The undersigned notes that plaintiff is a particularly litigious individual who has filed numerous other actions that are
presently pending in this District, as well as others. See, e.g., Lewis v. Town of Elizabethtown, 8:24-CV-00535 (AMN/
DJS) (N.D.N.Y. filed Apr. 18, 2024), Dkt. No. 9 (dismissing complaint with leave to amend); Lewis v. Adirondack Med.
Ctr., 1:24-CV-00376 (BKS/TWD) (N.D.N.Y. filed Mar. 19, 2024), Dkt. No. 4 (Report-Recommendation recommending
dismissal pending review); Lewis v. Paymaster Payroll Sys., Inc., 8:24-CV-00121 (MAD/DJS) (N.D.N.Y. filed Jan.
25, 2024), Dkt. No. 9 (dismissing complaint and entering judgment in favor of the defendants); Lewis v. Walsh, 8:24-
CV-00098 (GTS/CFH) (N.D.N.Y. filed Jan. 21, 2024), Dkt. No. 5 (Report-Recommendation recommending dismissal
pending review); Lewis v. Essex Cnty., 8:24-CV-00100 (MAD/CFH) (N.D.N.Y. filed Jan. 19, 2024), Dkt. No. 9 (Report-
Recommendation recommending dismissal pending review); Lewis v. Despos, LLC, 8:24-CV-00079 (AMN/CFH)
(N.D.N.Y. filed Jan. 17, 2024), Dkt. No. 12 (dismissing complaint without leave to amend); Lewis v. R. L. Vallee, Inc.,
8:24-CV-00069 (AMN/DJS) (N.D.N.Y. filed Jan. 16, 2024), Dkt. No. 17 (dismissing complaint with leave to amend);
Lewis v. Affiliated Enter. Sol., LLC, 8:24-CV-00061 (BKS/DJS) (N.D.N.Y. filed Jan. 15, 2024), Dkt. No. 17 (dismissing
complaint with leave to amend); Lewis v. Redline Hockey, LLC, 8:24-CV-00068 (BKS/DJS) (N.D.N.Y. filed Jan. 15,
2024), Dkt. No. 17 (dismissing complaint with leave to amend); Lewis v. Citizens United, Inc., 8:24-CV-00029 (TJM/
DJS) (N.D.N.Y. filed Jan. 8, 2024), Dkt. No. 25 (dismissing amended complaint); Lewis v. Adirondack Med. Ctr., 8:24-
CV-00027 (BKS/DJS) (N.D.N.Y. filed Jan. 7, 2024), Dkt. No. 17 (dismissing complaint with leave to amend); Lewis v.
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Onondaga Cnty., 8:24-CV-00013 (GTS/DJS) (N.D.N.Y. filed Jan. 3, 2024), Dkt. No. 21 (dismissing complaint with leave
to amend); Lewis v. Franklin Cnty., 8:23-CV-01647 (DNH/CFH) (N.D.N.Y. filed Dec. 28, 2023), Dkt. No. 15 (partially
dismissing complaint, permitting one claim to proceed); Lewis v. Essex Cnty., 8:23-CV-01636 (TJM/CFH) (N.D.N.Y.
filed Dec. 26, 2023), Dkt. No. 9 (Report-Recommendation recommending dismissal pending review); Lewis v. State
of Texas, 1:24-CV-00461 (ADA) (W.D. Tex. filed Apr. 25, 2024), Dkt. No. 3 (dismissing all claims with prejudice as
malicious); Lewis v. Williamson Cnty., 1:24-CV-03092 (LTS) (S.D.N.Y. filed Apr. 20, 2024); Lewis v. Williamson Cnty.,
1:24-CV-00118 (ADA) (W.D. Tex. filed Jan. 29, 2024), Dkt. No. 3 (dismissing all claims with prejudice as malicious);
Lewis v. Williamson Cnty., 1:21-CV-00074 (ADA/SH) (W.D. Tex. filed Jan. 25, 2021), Dkt. No. 152 (granting summary
judgment in favor of the defendants and dismissing the plaintiff's claims with prejudice).
2 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, including but not limited to copying fees, transcript fees, and witness fees.
II. Consolidation
*2 “Rule 42(a) of the Federal Rules of Civil Procedure provides for the consolidation of actions pending before the court
which involve ‘a common question of law or fact.’ ” Boyde v. Uzunoff, No. 9:21-CV-0741 (TJM/ATB), 2021 WL 3185472,
at *1 (N.D.N.Y. July 28, 2021) (quoting FED. R. CIV. P. 42(a)(2)). “As the Second Circuit has recognized, ‘[t]he trial court
has broad discretion to determine whether consolidation is appropriate,’ and may consolidate actions sua sponte.” Id. (quoting
Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990), and citing Devlin v. Transp. Commc'ns Intern. Union, 175
F.3d 121, 130 (2d Cir. 1999)); see Innovation Ventures v. Ultimate One Distrib. Corp., No. 12-CV-5354 (KAM/RLM), 2014
WL 824304, at *2 (E.D.N.Y. Mar. 3, 2014) (“A court may consolidate related cases sua sponte under Rule 42(a).”) (citation
omitted). “The Court must consider in each case the possible risks and benefits of consolidation.” Boyde, 2021 WL 3185472, at
*1; see Jacobs v. Castillo, 612 F. Supp. 2d 369, 373 (S.D.N.Y. 2009) (“Consolidation ... further[s] the goal of ‘judicial economy’
because discovery in each case is likely to be identical, motion practice and trial in the two cases would most likely cover the
same facts and some identical issues of law.”). “The paramount concern is whether savings of expense and gains of efficiency
can be accomplished without sacrifice of justice.” Wolm v. Ahern, No. 14-CV-3978 (JFB/GRB), 2014 WL 5171763, at *1
(E.D.N.Y. Oct. 8, 2014) (citing Johnson, 899 F.2d at 1285).
Here, plaintiff commenced the instant case, 8:24-CV-00849, Lewis v. New York State Board of Elections (hereinafter “Lewis
I”), on July 4, 2024. See Compl. (hereinafter “Compl. I”). Nearly seven weeks later, on August 21, 2024, plaintiff commenced a
second action, 8:24-CV-01036, Lewis v. New York State Board of Elections (hereinafter “Lewis II”), with the filing of a separate
complaint (hereinafter “Compl. II”). The undersigned has reviewed both complaints in each action, and has determined “that
common questions of law and fact exist in these cases.” Boyde, 2021 WL 3185472, at *1. “Plaintiff appears to name the same
defendant[, the New York State Board of Elections,] and to the extent it can be determined, the cases arise out of the same facts
and circumstances and raise the same claims in [both] of these ... actions.” Lamothe v. Brown, No. 5:22-CV-161 (TJM/CFH),
2023 WL 316013, at *1 (D. Vt. Jan. 19, 2023), report and recommendation adopted, 2023 WL 3301220 (D. Vt. May 8, 2023).
Notably, both of the complaints filed by plaintiff challenge the constitutionality of New York State's election laws, 3 and his
claims derive from his “run to represent New York State's 21st Congressional District” in the upcoming November 2024 general
election. Compl. I at 3; Compl. II at 5. 4 Thus, “[c]onsolidating these actions will avoid ‘unnecessary repetition and confusion.’
” Royal v. Shulkin, No. 1:17-CV-1251 (GTS/CFH), 2018 WL 1229701, at *1 (N.D.N.Y. Jan. 5, 2018) (quoting Miller v. U.S.
Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984)), report and recommendation adopted, 2018 WL 1229822 (N.D.N.Y. Mar. 8,
2018); see Morales v. Pallito, No. 1:13-CV-141, 2013 WL 3148411, at *1 (D. Vt. June 19, 2013) (“[The plaintiff] is bringing
the same claim against the same [d]efendant in both cases. [The defendant] has not yet been served and, consequently, there
has been no responsive pleading and no discovery. The Court thus finds that the interests of justice will be best served by
consolidation, as carrying these two actions forward as one enhances judicial economy, with no prejudice to any party.”).
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3 In Lewis I, plaintiff challenges the constitutionality of sections 6-132, 6-134, 6-136, 6-140, 6-142, and 6-158 of the New
York Election Law. See generally Compl. I. In Lewis II, plaintiff challenges the constitutionality of section 16-102 of
the New York Election Law. See generally Compl. II.
4 Citations are to the pagination generated by CM/ECF, located in the header of each page.
*3 Accordingly, it is recommended that these two cases be consolidated, with Lewis I as the lead case, and Lewis II as a
member case.
III. Initial Review
A. Legal Standard
28 U.S.C. § 1915 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.” 5 28 U.S.C. § 1915(e)(2)(B). 6 “Thus, it is a
court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed further
with his action.” Praileau v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
5 “ ‘A case is malicious if it was filed with the intention or desire to harm another.’ ” Tafari v. Hues, 473 F.3d 440, 442
(2d Cir. 2007) (quoting Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005)). A case “is frivolous when it ‘lacks an
arguable basis either in law or in fact’ ” and “advances ‘inarguable legal conclusion[s]’ or ‘fanciful factual allegation[s].’
” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
6 These requirements apply to non-prisoner pro se litigants. See N.D.N.Y. L.R. 72.3(d) (“Unless the Court orders
otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred to a Magistrate Judge for
the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an application to proceed in forma
pauperis is filed.”).
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). As the Second Circuit stated,
[t]here 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 ....
Id. (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008) (“On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ...
a court is obligated to construe his pleadings liberally.”) (internal quotation marks and citations omitted). 7 Thus, the Court is
not 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
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claims against them and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). 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; see Iqbal, 556 U.S. at 678 (“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.”).
7 The undersigned notes, however, that the Second Circuit has “occasionally endorsed some limited forms of this practice,
and ha[s] suggested that it may be appropriate ‘to charge a pro se litigant with knowledge of, and therefore withdraw
special status in relation to, particular requirements [of the legal system] with which he is familiar as a result of his
extensive prior experience in the courts.’ ” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (quoting Sledge v. Kooi,
564 F.3d 105, 109 (2d Cir. 2009), and citing Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) (denying a pro se plaintiff
an opportunity to replead on the ground that he was “an extremely litigious inmate who [wa]s quite familiar with the
legal system and with pleading requirements”)); see Shomo v. Furco, No. 18-CV-8523 (VB), 2020 WL 4194941, at *4
(S.D.N.Y. July 20, 2020) (determining that “the deference usually granted to pro se plaintiffs need not be expansively
drawn in this case,” given that the pro se plaintiff previously filed “at least ten lawsuits and appeals [and] was familiar
with court procedure”) (citations omitted).
*4 “The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits, because pro se pleadings still must comply
with ... the Federal Rules of Civil Procedure.” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2
(S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). 8 Notably, Rule 8 provides that a pleading which
sets forth a claim for relief shall contain, among other things, “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 “(1) a short and plain statement of the grounds for the court's jurisdiction ... 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.” FED. R. CIV. P. 8(d).
8 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided
to plaintiff.
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 a heavy burden in terms of defendants’ duty to shape a comprehensive
defense and provides no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.
352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not comply with the requirement that it be
short and plain, the court has the power, on its own initiative ... to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40,
42 (2d Cir. 1988) (citations omitted). However, “[d]ismissal ... is usually reserved for those cases in which the complaint is so
confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted).
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B. Plaintiff's Complaint
Plaintiff offers us a brief history lesson on the two-party political system in the United States. See Compl. I at 1-3. As relevant
here, plaintiff claims that “[i]n New York State, Republican and Democrat lawmakers alike have created unconstitutional
additional requirements in attempts to subvert an individual's Constitution[al] right to candidacy, such as [p]laintiff's, by drafting
and passing laws with undue burdens, with the goal of preventing the emergence of any new or independent political party.” Id.
at 2, ¶4. Plaintiff complains that George Washington “warned of such a scenario,” quoting Washington's September 17, 1796,
farewell address. Id. at 2, ¶5. Plaintiff then reiterates that
[election] laws in New York State ... [are] unconstitutional [and] continue to subvert the power of the
people [because i]ndividuals who are not aligned with any political party and seeking access to the
ballot, such as [p]laintiff, are subjected to a barrage of unconstitutional additional requirements which
consequently create undue burdens and unfair circumstances to the would-be independent candidate.
Id. at 2, ¶6.
*5 Plaintiff asserts that he is “an individual over the age of twenty-five, a citizen of the United States for over seven years and
a resident of New York State, thus qualified to be elected to Congress pursuant to the United States Constitution.” Compl. I at
3, ¶8. Plaintiff “announced a run to represent New York State's 21st Congressional District on or around March 13, 2024.” Id. at
3, ¶12. “Plaintiff began circulating an independent nominating petition on April 16, 2024.” 9 , 10 Id. at 3, ¶13. “The deadline to
file three thousand five hundred (3,500) signatures for an independent nominating petition was May 28, 2024.” 11 Id. at 4, ¶14.
“Plaintiff filed approximately three thousand eight hundred twenty eight (3,828) signatures on May 28, 2024.” Id. at 4, ¶15. Two
individuals, including Margaret Bartley, the chair of the Essex County Democratic Committee, “filed general objections and
specifications challenging the petition on various grounds.” Compl. II at 56-59. After conducting a prima facie examination of
the petition, the New York State Board of Elections “invalidated [p]laintiff's independent nominating petition on or around June
13, 2024, claiming [p]laintiff only submitted three thousand four hundred ninety three (3,493) signatures, leaving [p]laintiff
seven (7) signatures short of the unconstitutional requirement.” Compl. I at 4, ¶16; see Compl. II at 2, ¶10, 59.
9 Plaintiff claims that “[t]hose running for a political party [were] able to circulate petitions from February 27, 2024 until
April 4, 2024,” but “[i]ndependent petitions were circulated between April 16, 2024 and May 28, 2024.” Compl. I at
5, ¶¶24-25.
10 Plaintiff alleges that he “was unlawfully evicted on or around May 10, 2024.” Compl. I at 5, ¶30. Plaintiff does not
specify what he means by “unlawfully evicted,” or otherwise explain how this relates to the instant action. Id.
11 Plaintiff contends that “petitions for political parties have a filing deadline of Thursday, April 4, 2024 while independent
nominating petitions have a deadline of Tuesday, May 28, 2024.” Compl. I at 7, ¶37.
On June 13, 2024, “[p]laintiff filed a lawsuit in the Albany County Supreme Court challenging [the New York State Board
of Elections’] determination.” Compl. I at 4, ¶17; see Compl. II at 2, ¶11. Specifically, plaintiff “filed a proposed order to
show cause and petition commencing [a special] proceeding pursuant to Election Law § 6-102 seeking to validate his petition.”
Compl. II at 59. After plaintiff filed multiple amended petitions, “Honorable Christina L. Ryba signed an order to show cause
on June 17, 2024 permitting service by overnight mailing on or before June 19, 2024.” Id. at 2, ¶12. “Plaintiff served all parties
via overnight mailing by June 19, 2024.” Id. at 3, ¶13. However, Ms. Bartley and Paula Collins, plaintiff's political opponent
in the upcoming election, “had refused ‘actual delivery’ of the overnight mailing.” Id. at 3, ¶15. “Oral arguments were heard
on June 28, 2024[,]” when plaintiff explained “that service was completed timely and thus, the special proceeding was initiated
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timely.” 12 Id. at 3, ¶¶15-16. However, Ms. Bartley argued that the proceeding should be dismissed as untimely because, under
N.Y. Elec. Law § 16-102, plaintiff needed to serve all parties by June 18, 2024, and he failed to do so. See id. at 58-61. Following
oral arguments, on July 3, 2024, Hon. Ryba dismissed the proceeding as untimely. See Compl. II. at 58-62.
12 However, in Lewis I, plaintiff claims the hearing took place “on or around June 11, 2024.” Compl. I at 6, ¶32.
Plaintiff now seeks to “challeng[e] the constitutionality of New York State's election laws[,]” including (1) “§ 6-136 and § 6-142,
which dictate the number of signatures required for nominating petitions”; (2) “§ 6-158 which mandates the deadlines imposed
for filing nominating petitions”; (3) “§ 6-134 which outlines the rules for nominating petitions”; (4) “§ 6-132 and 6-140, laws
governing the required form of nominating petitions”; and (5) “16-102 which dictate[s] the institution of a special proceeding.”
Compl. I at 1 (citing N.Y. ELEC. LAW §§ 6-132, 6-134, 6-136, 6-140, 6-142, 6-158); Compl. II at 1 (citing N.Y. ELEC. LAW §
16-102). Plaintiff alleges that these laws violate “the First and Fourteenth Amendment of the United States Constitution” and he
“requests this court to issue declaratory and injunctive relief preventing the New York State Board of Elections ... from enforcing
restrictive and unconstitutional laws and ordering [p]laintiff's name on the ballot for the 2024 general election.” Compl. I at
3, ¶7; see Compl. II at 1.
C. Analysis
*6 Liberally construing plaintiff's complaint, he brings claims under 42 U.S.C. § 1983 against the New York State Board of
Elections, 13 alleging violations of his First and Fourteenth Amendment rights. 14 See Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 475 (2d Cir. 2006) (“This policy of liberally construing pro se submissions is driven by the understanding that
‘[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect
pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.’ ”) (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)); cf. Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (“The solicitude afforded to
pro se litigants ... most often consists of liberal construction of pleadings, ... [however,] the degree of solicitude may be lessened
where the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented.”).
13 “Under New York law, the [New York State Board of Elections] is responsible for, the execution and enforcement of ...
statutes governing campaigns, elections and related procedures.” Schulz v. Williams, 44 F.3d 48, 61 n.13 (2d Cir. 1994)
(citing N.Y. ELEC. LAW § 3-104).
14 Although plaintiff refers to various individuals throughout Compl. I and Compl. II, including Ms. Bartley and Ms.
Collins, he does not appear to pursue any claims against them in these actions, as he has made clear that he is solely
“challenging the constitutionality of New York State's election laws.” Compl. I at 1; Compl. II at 1. Moreover, as
indicated previously, plaintiff appears to be an experienced litigator. See supra note 1, 7. Earlier this year, the undersigned
reviewed a separate complaint filed by plaintiff in a separate action, and added parties that were mentioned in the
complaint but not specifically identified in the “parties” section, in efforts to liberally construe plaintiff's submissions
and interpret them to raise the strongest arguments that they suggest. See Lewis v. Franklin Cnty., 8:23-CV-01647 (DNH/
CFH) (N.D.N.Y. filed Dec. 28, 2023), Dkt. No. 10. Plaintiff was extremely unappreciative of this, as he “explicitly
object[ed] to the addition of parties,” claimed that the undersigned's actions were “improper,” and argued that he correctly
pleaded the proper parties in the “parties” section of his complaint. Id., Dkt. No. 13 at 1-2. Thus, because the only party
identified in the “parties” section of Compl. I and II is the New York State Board of Elections, and given plaintiff's
litigation history, it appears that he does not intend to pursue claims against any other parties. See generally Compl. I,
Compl. II. In any event, plaintiff's claims regarding Ms. Bartley and Ms. Collins “amount to nothing more than a rant
more fitting of an editorial than a legal pleading.” Dillon v. Bush, No. 3:05-CV-188 (LAC/MD), 2005 WL 8163072,
at *5 (N.D. Fla. Aug. 12, 2005).
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The Eleventh Amendment to the United States Constitution states that “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. AMEND. XI. Thus, “[a]s a general rule, state
governments and their agencies may not be sued in federal court unless they have waived their Eleventh Amendment immunity
or there has been a valid abrogation of that immunity by Congress.” Kisembo v. N.Y.S. Off. of Child. & Fam. Servs., 285 F.
Supp. 3d 509, 519 (N.D.N.Y. 2018) (quoting Jackson v. Battaglia, 63 F. Supp. 3d 214, 219-20 (N.D.N.Y. 2014)); see Garcia
v. Paylock, No. 13-CV-2868 (KAM), 2014 WL 298593, at *3 (E.D.N.Y. Jan. 28, 2014) (“Plaintiff's equal protection claims
also may not be brought directly under the Fourteenth Amendment because the State has not waived its immunity or had that
immunity abrogated pursuant to that constitutional amendment.”) (citation omitted). “This jurisdictional bar applies regardless
of the nature of the relief sought.” Murawski v. N.Y. State Bd. of Elections, 285 F. Supp. 3d 691, 695 (S.D.N.Y. 2018) (quoting
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)); see Torres v. Off. of Adult Prob., No. 3:22-CV-00883
(SALM), 2023 WL 3259781, at *4 (D. Conn. May 4, 2023) (explaining that, although the plaintiff may bring a claim for
injunctive relief against individual state officials, the plaintiff may not bring such a claim against the state itself or its agencies)
(citing Off. of Consumer Couns. v. S. New Eng. Tel. Co., 502 F. Supp. 2d 277, 291 (D. Conn. 2007)).
*7 “ ‘[T]he immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state
instrumentalities that are, effectively, arms of a state.’ ” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (quoting Woods
v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)); see Marino v. City Univ. of New York, 18
F. Supp. 3d 320, 329 (E.D.N.Y. 2014) (explaining that sovereign immunity bars “direct constitutional claim[s] brought directly
against a state entity”) (citing Santiago v. N.Y. State Dep't of Corr. Servs., 945 F.2d 25, 30-32 (2d Cir. 1991)); see also Rubin
v. N.Y. State Dep't of Motor Vehicles, No. 10-CV-4119 (NGG), 2010 WL 3842011, at *1 (E.D.N.Y. Sept. 28, 2010) (“The
Eleventh Amendment bars suits against states, their agencies whether the [p]laintiff seeks relief at law or in equity, absent the
state's consent to suit or an express or statutory waiver of immunity.”) (citing Pennhurst State School & Hosp., 465 U.S. at
99-102). “[T]he Board of Elections is a state agency for the purposes of the Eleventh Amendment[.]” Credico v. N.Y. State
Bd. of Elections, 751 F. Supp. 2d 417, 420 (E.D.N.Y. 2010) (citing McMillan v. N.Y. State Bd. of Elections, No. 10-CV-2502
(JG/VVP), 2010 WL 4065434, at *3 (E.D.N.Y. Oct. 15, 2010), aff'd, 449 F. App'x 79 (2d Cir. 2011) (summary order)); see
Murawski, 285 F. Supp. 3d at 696 (collecting cases); see also Tiraco v. N.Y. State Bd. of Elections, 963 F. Supp. 2d 184, 191
n.7 (E.D.N.Y. 2013) (“It is undisputed that the State Board [of Elections], a New York state executive agency, is an ‘arm of
the state’ entitled to sovereign immunity.”) (citations omitted). Specifically, “common sense and the rationale of the [E]leventh
[A]mendment require that sovereign immunity attach” to the New York State Board of Elections. Hess v. Port Auth. Trans-
Hudson Corp., 513 U.S. 30, 50 (1994).
“There are three limited exceptions to state sovereign immunity.” Tiraco, 963 F. Supp. 2d at 191. “First, a state may waive
its sovereign immunity by consenting to suit in federal court.” Id. at 191-92 (citing Iwachiw v. N.Y.C. Bd. of Elections, 217
F. Supp. 2d 374, 379 (E.D.N.Y. 2002), aff'd, 126 F. App'x 27 (2d Cir. 2005) (summary order)) (additional citation omitted).
“Second, Congress may abrogate state sovereign immunity by acting pursuant to a grant of constitutional authority.” Leibovitz
v. Barry, No. 15-CV-1722 (KAM), 2016 WL 5107064, at *5 (E.D.N.Y. Sept. 20, 2016) (citing Kimel v. Fl. Bd. of Regents,
528 U.S. 62, 80 (2000)). “Third, under the Ex parte Young doctrine, sovereign immunity does not preclude a plaintiff from
seeking prospective injunctive relief or declaratory relief against a state official acting in his or her official capacity for ongoing
violations of federal law.” Tiraco, 963 F. Supp. 2d at 192 (citing State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71,
95 (2d Cir. 2007)); see Anghel v. N.Y. State Dep't of Health, 947 F. Supp. 2d 284, 298 (E.D.N.Y. 2013) (“[T]he doctrine of Ex
Parte Young, ... ‘allows a suit for injunctive [or declaratory] relief challenging the constitutionality of a state official's actions
in enforcing state law.’ ”) (quoting CSX Transp., Inc. v. N.Y. State Off. of Real Prop. Servs., 306 F.3d 87, 98 (2d Cir. 2002)),
aff'd, 589 F. App'x 28 (2d Cir. 2015) (summary order).
However, none of these exceptions apply here. First, New York has not expressly waived its sovereign immunity with respect
to the claims asserted in plaintiff's complaints. See Edelman v. Jordan, 415 U.S. 651, 673 (1974) (“[W]e will find waiver only
where stated ‘by the most express language or by such overwhelming implications from the text as (will) leave no room for any
other reasonable construction.’ ”) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). “It is well-established
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that New York has not consented to § 1983 lawsuits in federal court[.]” Mamot v. Bd. of Regents, 367 F. App'x 191, 192 (2d
Cir. 2010) (summary order) (citation omitted); see Iwachiw, 217 F. Supp. 2d at 379-80 (“New York State has not waived its
Eleventh Amendment [immunity] in claims involving write-in candidates in United States Senatorial Primaries[.]”); see also
Dekom v. New York, No. 12-CV-1318 (JS/ARL), 2013 WL 3095010, at *10 (E.D.N.Y. June 18, 2013) (dismissing § 1983
claims against the New York State Board of Elections on Eleventh Amendment immunity grounds), aff'd, 583 F. App'x 15 (2d
Cir. 2014) (summary order).
*8 Second, Congress has not “abrogated New York's sovereign immunity from suit by acting pursuant to a grant of
constitutional authority.” Tiraco, 963 F. Supp. 2d at 192. Indeed, 42 U.S.C. § 1983 does not override New York's sovereign
immunity. See Mayo v. Doe, 480 F. Supp. 3d 395, 402 (D. Conn. 2020) (“Section 1983 does not abrogate state sovereign
immunity”) (citing Quern v. Jordan, 440 U.S. 332, 342 (1979)); see also Sierotowicz v. N.Y. Div. of Hous. & Cmty. Renewal,
No. 04-CV-3886 (NGG/LB), 2005 WL 1397950, at *1 (E.D.N.Y. June 14, 2005) (holding that 42 U.S.C. § 1983 does not
override New York's Eleventh Amendment sovereign immunity).
Third, the Ex Parte Young doctrine does not appear to salvage plaintiff's claims for injunctive and declaratory relief against
the New York State Board of Elections. See Tiraco, 963 F. Supp. 2d at 192; see Ex parte Young, 209 U.S. 123 (1908). Indeed,
plaintiff “does not follow the requirement, established in Ex Parte Young, that a plaintiff seeking prospective relief from the
state must name as defendant a state official rather than the state or a state agency directly.” Santiago, 945 F.2d at 32 (citing
Pennhurst State Sch. & Hosp., 465 U.S. at 102); see Melrose v. N.Y. State Dep't of Health Off. of Pro. Med. Conduct, No. 05-
CV-8778 (SCR/LMS), 2009 WL 211029, at *5 (S.D.N.Y. Jan. 26, 2009) (“[T]he Second Circuit still requires that state officers
be named in order for the Ex Parte Young exception to apply.”) (citations omitted); see also Harris v. N.Y. State Educ. Dep't,
419 F. Supp. 2d 530, 534 (S.D.N.Y. 2006) (“Actions for injunctive relief under the Ex parte Young exception to [sovereign
immunity] constitute suits against state officials, not against the state or state agency itself.”).
Specifically, although plaintiff seeks injunctive relief, he has only named the New York State Board of Elections and has
failed to name any individual state official as a defendant. See Tiraco, 963 F. Supp. 2d at 192 (dismissing the plaintiff's claims
asserted against the New York State Board of Elections based on sovereign immunity, notwithstanding that the plaintiff sought
prospective injunctive and declaratory relief, because he “failed to name any state official as a defendant”); cf. Gallagher v. New
York State Bd. of Elections, 477 F. Supp. 3d 19, 37 (S.D.N.Y. 2020) (“Plaintiffs’ ... claims against the [New York State Board
of Elections], therefore, are barred by sovereign immunity. But their federal claims against the [Board's] officers and Governor
Cuomo ... are not barred.”) (citations omitted); Cohen v. Richardson, No. 1:23-CV-00224 (AMN/CFH), 2024 WL 418788, at
*3 (N.D.N.Y. Feb. 5, 2024) (concluding that the Eleventh Amendment did not bar the plaintiff's suit, where the plaintiff “only
[sought] declaratory and prospective injunctive relief” against named individuals employed by the New York State Board of
Elections) (citing Cecos Int'l, Inc. v. Jorling, 706 F. Supp. 1006, 1024 (N.D.N.Y. 1989) (“[T]he [E]leventh [A]mendment does not
forbid federal courts from granting injunctive relief against a state official acting contrary to the United States Constitution.”),
aff'd, 895 F.2d 66 (2d Cir. 1990)), reconsideration denied, 2024 WL 3653801 (N.D.N.Y. Aug. 5, 2024).
Consequently, the New York State Board of Elections is entitled to sovereign immunity. See Yang v. Kellner, 458 F. Supp.
3d 199, 208 (S.D.N.Y.) (“Because New York has not consented to be sued, and because Congress has not enacted legislation
abrogating New York's Eleventh Amendment immunity with regard to [the p]laintiffs’ ... causes of action, the claims against
the [Board of Elections] as a state agency are barred by sovereign immunity.”), aff'd sub nom. Yang v. Kosinski, 960 F.3d 119
(2d Cir. 2020); see also McMillan, 449 F. App'x at 80 (affirming dismissal of the plaintiff's claims against the New York State
Board of Elections as barred by the Eleventh Amendment); Ulanov v. N.Y. State Bd. of Elections, No. 22-CV-193 (AMD/LB),
2022 WL 173112, at *2 (E.D.N.Y. Jan. 19, 2022) (“Accordingly, the New York State Board of Elections is immune from suit,
and the plaintiff's claims against it must be dismissed.”), reconsideration denied, 2022 WL 767865 (E.D.N.Y. Mar. 14, 2022).
*9 “The undersigned notes that a dismissal based on the doctrine of sovereign immunity, is consequently a dismissal for
lack of subject matter jurisdiction.” Griffith v. New York State, No. 5:23-CV-1266 (DNH/ML), 2024 WL 1641587, at *5 n.4
(N.D.N.Y. Mar. 20, 2024) (citing Crumble v. United States, No. 1:23-CV-4427 (LTS), 2023 WL 5102907, at *7 (S.D.N.Y. Aug.
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7, 2023), and Nguyen v. Kijakazi, No. 20-CV-0607 (MKB), 2022 WL 542265, at *8 (E.D.N.Y. Feb. 23, 2022)), report and
recommendation adopted, 2024 WL 1639856 (N.D.N.Y. Apr. 16, 2024); see Wang v. Delphin-Rittmon, 664 F. Supp. 3d 205,
217 (D. Conn. 2023) (“[S]overeign immunity strips the court of jurisdiction[.]”) (citing Smith v. Scalia, 44 F. Supp. 3d 28, 40
n.10 (D.D.C. 2014), aff'd, 2015 WL 13710107 (D.C. Cir. 2015)); see Iwachiw, 217 F. Supp. 2d at 383 (dismissing the plaintiff's
section 1983 action against the New York State Board of Elections for lack of subject matter jurisdiction under the Eleventh
Amendment, noting “[t]he Eleventh Amendment is an explicit limitation on federal jurisdiction”) (internal quotation marks and
citations omitted). Thus, it is recommended that plaintiff's claims against the New York State Board of Elections be dismissed
without prejudice for lack of subject matter jurisdiction. See Abadi v. City of New York, 22-CV-1560, 2023 WL 3295949, at
*3 n.3 (2d Cir. May 8, 2023) (summary order) (“Because the Court lacks subject matter jurisdiction ... the amended complaint
should be dismissed without prejudice.”) (citing Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (“[A]
complaint must be dismissed without prejudice where the dismissal is due to the court's lack of subject matter jurisdiction[.]”)).
IV. Leave to Amend
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)).
Here, it is not an entirely foregone conclusion that plaintiff could amend his complaint to state a claim. See Meyers v. Becker,
No. 1:23-CV-173 (DNH/CFH), 2023 WL 3079611, at *6 (N.D.N.Y. Apr. 5, 2023), report and recommendation adopted, 2023
WL 3073495 (N.D.N.Y. Apr. 25, 2023); see also Stiegman v. New York State Off. of Info. Tech. Servs., No. 1:19-CV-18 (GTS/
CFH), 2019 WL 1762900, at *5 (N.D.N.Y. Apr. 22, 2019) (dismissing the plaintiff's claims against a New York state agency
as barred by sovereign immunity, but granting the plaintiff leave to amend should the plaintiff wish to name an individual state
official pursuant to the Ex Parte Young exception), report and recommendation adopted, 2019 WL 4727444 (N.D.N.Y. Sept.
27, 2019). Thus, it is recommended that plaintiff's complaint be dismissed without prejudice and with leave to amend should
plaintiff wish to name a proper party or plead a proper claim. 15
15 Any amended pleading supersedes and replaces a prior pleading in its entirety. In the event the District Judge adopts
the undersigned's recommendation and plaintiff amends his complaint, plaintiff is advised that any amended pleading
cannot incorporate a prior pleading by reference. See, e.g., Anthony v. Fein, Such & Crane, LLC, No. 5:15-CV-00452
(DNH/TWD), 2015 WL 7749894, at *5 (N.D.N.Y. Sept. 22, 2015) (“[I]n the event Plaintiff is granted leave to amend,
he be instructed that the amended complaint will take the place of and effectively invalidate Plaintiff's second amended
complaint”), report and recommendation adopted, 2015 WL 7738048 (N.D.N.Y. Dec. 1, 2015). Further, an amended
complaint may not replead any claims or defendants dismissed by this Court with prejudice. An amended pleading must
establish this Court's jurisdiction and state a claim for relief against each named defendant for which leave to replead
was granted according to Rules 8 and 10 of the Federal Rules of Civil Procedure.
V. Conclusion
*10 WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's application for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
RECOMMENDED, that plaintiff's claims against the New York State Board of Elections be DISMISSED WITHOUT
PREJUDICE and WITH LEAVE TO AMEND; and it is
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RECOMMENDED, that this matter (8:24-CV-00849, “Lewis I”) be CONSOLIDATED with 8:24-CV-01036 (“Lewis II”),
with the lead case being 8:24-CV-00849, and the member case being 8:24-CV-01036; and it is further
RECOMMENDED, that, if consolidation is granted, this Report-Recommendation and Order be docketed and served in all
cases, with future filings to be docketed in only the lead case; and it is
RECOMMENDED, that, if the District Judge adopts this Report-Recommendation and Order, plaintiff be given thirty (30)
days from the date of the Order adopting this Report-Recommendation and Order to file an amended complaint, and if plaintiff
does not file an amended complaint within that time frame, the case be closed without further order by the Court; and it is
ORDERED, that the Clerk 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. 6(a), 72. 16
16 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 4910561
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Lewis v. New York State Board of Elections, Not Reported in Fed. Supp. (2024)
2024 WL 4689022
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4689022
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Scott Phillip LEWIS, Plaintiff,
v.
NEW YORK STATE BOARD OF ELECTIONS, Defendant.
Scott Phillip Lewis, Plaintiff,
v.
New York State Board of Elections, Defendant.
8:24-CV-0849 (GTS/CFH), 8:24-CV-1036 (GTS/CFH)
|
Signed November 6, 2024
Attorneys and Law Firms
SCOTT PHILLIP LEWIS, Plaintiff, Pro Se, 1936 Saranac Ave, #3, PMB 411, Lake Placid, NY 12946.
HON. LETITIA A. JAMES, AIMEE COWAN, ESQ., Assistant Attorney General, Counsel for Defendant, 300 South State
Street, Suite 300, Syracuse, NY 13202.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in each of the two above-captioned civil rights actions filed by Scott Phillips Lewis (“Plaintiff”)
against the New York State Board of Elections (“Defendant”), is a Report-Recommendation by United States Magistrate Judge
Christian F. Hummel recommending that (1) the matters be consolidated, with the lead case being Action No. 8:24-CV-0849,
and the member case being Action No. 8:24-CV-1036, and (2) Plaintiff's Complaint in each action be sua sponte dismissed
without prejudice and with leave to amend. (Action No. 8:24-CV-0849, Dkt. No. 25; Action No. 8:24-CV-1036, Dkt. No. 28.) In
each action, Plaintiff has filed an Objection, and Defendant has filed a Response to that Objection. (Action No. 8:24-CV-0849,
Dkt. Nos. 27, 28; Action No. 8:24-CV-1036, Dkt. Nos. 30, 31.) For the reasons set forth below, each Report-Recommendation
is accepted and adopted in its entirety, the matters are consolidated (with the lead case being Action No. 8:24-CV-0849, and
the member case being Action No. 8:24-CV-1036), and Plaintiff's Complaint in each action shall be dismissed unless Plaintiff
files an Amended Complaint within thirty days of the entry of this Decision and Order.
As an initial matter, the Court finds that (1) because neither of Plaintiff's Objections challenges Magistrate Judge Hummel's
recommendation regarding consolidation, that recommendation need be (and is) reviewed only for clear error, 1 and (2) that
recommendation survives that clear-error review for the reasons stated in each Report-Recommendation. (Action No. 8:24-
CV-0849, Dkt. Nos. 27, 25; Action No. 8:24-CV-1036, Dkt. Nos. 30, 28.)
1 When no specific objection is made to a report-recommendation, the Court subjects that report-recommendation to
only a clear-error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a
clear-error review, “the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31,
1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific
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objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). To be
“specific,” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations,
or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(C); see, e.g., Mario v.
P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario filed objections to the magistrate's report
and recommendation, the statement with respect to his Title VII claim was not specific enough to preserve this claim
for review. The only reference made to the Title VII claim was one sentence on the last page of his objections, where he
stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum
of Law in Support of Motion for Partial Summary Judgment.’ This bare statement, devoid of any reference to specific
findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to
preserve the Title VII claim.”).
*2 Turning to Magistrate Judge Hummel's recommendation regarding the dismissal of Plaintiff's Complaint without prejudice
and with leave to amend, the Court begins by finding that, even when viewed with the utmost of special leniency, neither
of Plaintiff's Objections contains a specific challenge to either Report-Recommendation other than a specific challenge to
the recommended dismissal of each Complaint on the grounds that Defendant is entitled to sovereign immunity. (Action No.
8:24-CV-0849, Dkt. No. 27; Action No. 8:24-CV-1036, Dkt. No. 30.) As a result, the remaining portions of each Report-
Recommendation need be (and are) reviewed only for clear error, which the Court finds they survive for the reasons stated in
each Report-Recommendation. (Action No. 8:24-CV-0849, Dkt. No. 25; Action No. 8:24-CV-1036, Dkt. No. 28.)
Finally, with regard to Plaintiff's specific challenge to the recommended dismissal of each Complaint on the grounds that
Defendant is entitled to sovereign immunity, the Court must review each such recommendation de novo. 2 After doing so, the
Court finds that each recommendation survives that de novo review for the reasons stated in each of Defendant's Responses:
Magistrate Judge Hummel employed the proper legal standards, accurately recited the facts, and correctly applied the law to
those facts. (Action No. 8:24-CV-0849, Dkt. No. 28; Action No. 8:24-CV-1036, Dkt. No. 31.) As a result, the challenged portion
of each Report-Recommendation is also accepted and adopted in its entirety for the reasons stated therein. (Id.)
2 When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that
portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C).
To those reasons, the Court adds only that, as argued by Defendant in each of its Responses, is well established that Defendant is
a state agency for the purposes of the Eleventh Amendment. See, e.g., McMillan v. New York State Bd. of Elections, 10-CV-2502,
2010 WL 4065434, at *3 (E.D.N.Y. Oct. 15, 2010) (“The State Board [of Elections] is a state agency for the purposes of the
Eleventh Amendment.”), aff'd, 449 F. App'x 79 (2d Cir. 2011) (summary order); Iwachiw v. New York City Bd. of Elections,
217 F. Supp. 2d 374, 380 (E.D.N.Y. 2002) (“[T]he Eleventh Amendment bars the Section 1983 action against the State Board
of Elections.”), aff'd, Iwachiw v. New York City Bd. of Elections, 126 F. App'x 27 (2d Cir. 2005); Murawski v. New York State
Bd. of Elections, 285 F. Supp. 3d 691, 696 (S.D.N.Y. 2018) (“The State Board of Elections is a state agency for the purposes of
the Eleventh Amendment ....”) (internal quotation marks omitted); Tiraco v. N.Y. State Bd. of Elections, 963 F. Supp. 2d 184,
191 n.7 (E.D.N.Y. 2013) (“It is undisputed that the State Board [of Elections], a New York state executive agency, is an ‘arm
of the state’ entitled to sovereign immunity.”); Credico v. New York State Bd. of Elections, 751 F. Supp. 2d 417, 420 (E.D.N.Y.
2010) (“[T]he Board of Elections is a state agency for the purposes of the Eleventh Amendment ....”).
ACCORDINGLY, it is
ORDERED that each Report-Recommendation in the two above-captioned actions (Action No. 8:24-CV-0849, Dkt. No. 25;
Action No. 8:24-CV-1036, Dkt. No. 28) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the two above-captioned actions are CONSOLIDATED pursuant to Fed. R. Civ. P. 42(a) (with the lead case
being Action No. 8:24-CV-0849, and the member case being Action No. 8:24-CV-1036); and it is further
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ORDERED that Plaintiff's Complaint in each action (Action No. 8:24-CV-0849, Dkt. No. 1; Action No. 8:24-CV-1036, Dkt.
No. 1) shall be DISMISSED without further Order of the Court, UNLESS, within THIRTY (30) DAYS of the entry of this
Decision and Order, Plaintiff files an AMENDED COMPLAINT that cures the pleading defects identified in each Report-
Recommendation; and it is further
*3 ORDERED that, should Plaintiff file a timely Amended Complaint, that Amended Complaint shall be, without further
Order of this Court, referred to Magistrate Judge Hummel for his review of its pleading sufficiency.
Because the Court certifies that any appeal from this Decision and Order would not be taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3), the Court revokes Plaintiff's in forma pauperis status on any appeal from this Decision and Order.
All Citations
Not Reported in Fed. Supp., 2024 WL 4689022
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Gosier v. Collins, Not Reported in Fed. Supp. (2024)
2024 WL 1016392
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1016392
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Willie Thomas GOSIER, Plaintiff,
v.
David J. COLLINS, et al., Defendants.
6:23-cv-1485 (DNH/TWD)
|
Signed March 8, 2024
Attorneys and Law Firms
WILLIE THOMAS GOSIER, Plaintiff, pro se, 22-B-2574, Elmira Correctional Facility, P.O. Box 500, Elmira, NY 14902.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
*1 The Clerk has sent to the Court for review a pro se civil rights complaint filed by Willie Thomas Gosier (“Plaintiff”) pursuant
to 42 U.S.C. § 1983 (“Section 1983”), asserting claims arising out of June 11, 2023, traffic stop in Rome, New York. (Dkt. No.
1.) Plaintiff has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
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 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).
“Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the
fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b)
and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
At the time Plaintiff commenced this action, he was an inmate at the Oneida County Correctional Facility. (Dkt. Nos. 1, 2.)
Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of “imminent danger of serious physical
injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a
claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the
Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. 1 Based on that review, it does not appear
Plaintiff had acquired three strikes for purposes of Section 1915(g) as of the date this action was commenced. 2
1 See http://pacer.uspci.uscourts.gov (last visited Mar. 8, 2024).
2 See Gosier v. Oneida Cnty. District Atty's Office, No. 6:23-cv-01118 (DNH/TWD) (N.D.N.Y. filed on Sept. 1, 2023;
closed on Nov. 2, 2023) (“Gosier I”); Gosier v. Utica Police Dep't, No. 6:23-cv-01119 (DNH/TWD) (N.D.N.Y. filed
on Sept. 1, 2023) (“Gosier II”); Gosier v. Oneida Cnty. Corr. Fac., No. 9:23-cv-01134 (DNH/CFH) (N.D.N.Y. filed
on Sept. 5, 2023) (“Gosier III”); Gosier v. Paolozzi, No. 9:23-cv-01135 (GTS/TWD) (N.D.N.Y. filed on Sept. 5, 2023;
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closed on Jan. 30, 2024) (“Gosier IV”). The Court notes Gosier I and Gosier IV were sua sponte dismissed on initial
review and Plaintiff has been granted leave to file amended complaints in Gosier II and Gosier III.
Upon review of Plaintiff's IFP application, the Court finds Plaintiff has demonstrated sufficient economic need and filed the
inmate authorization form required in this District. (Dkt. Nos. 2, 3.) Accordingly, Plaintiff's IFP application is granted. 3
3 “Although an indigent, incarcerated individual need not prepay the filing fee at the time ... of filing, he must subsequently
pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL
5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). Plaintiff should
also note that although his motion to proceed IFP has been granted, he will still be required to pay fees that he may incur
in this action, including copying and/or witness fees.
III. SUFFICENCY OF THE COMPLAINT
A. Standard of Review
*2 Having found Plaintiff meets the financial criteria for commencing this action IFP, 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 IFP, “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). 4
4 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 Section 1915A applies to all actions brought by
prisoners against government officials even when plaintiff paid the filing fee).
Additionally, when reviewing a complaint, the Court looks to the Federal Rules of Civil Procedure. Rule 8 provides that a
pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 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.” Fed. R. Civ. P. 10(b). Rule
10’s purpose is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Clervrain
v. Robbins, No. 22-CV-1248 (MAD/DJS), 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (citation omitted), report and
recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023). A complaint that does not comply with these Rules
“presents far too heavy a burden in terms of defendants’ duty to shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of [the plaintiff's] claims,” and may properly be dismissed by the Court. Gonzales
v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996).
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
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Twombly, 550 U.S. at 555). Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants
adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
B. Background
*3 The complaint in this action, brought against defendants David J. Collins, Chief of Police of the Rome Police Department,
and two unknown police officers, consists of two form complaints—one on the form complaint for civil rights violations
pursuant to 42 U.S.C. § 1983 and one on the form complaint for pro se prisoner complaints—and four attached narrative pages.
(Dkt. No. 1.) The narrative section spans five handwritten pages and is essentially one paragraph with limited punctuation. See
id. at 8-13. 5 The Court will construe the allegations in the complaint with the utmost leniency. See Haines v. Kerner, 404 U.S.
519, 520 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted
by lawyers”). The following facts are taken from Plaintiff's complaint.
5 The Court will refer to the CM/ECF pagination when citing to the complaint. Unless otherwise indicated, excerpts from
the complaint are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar
have not been corrected.
On June 11, 2023, between the hours of 6:00 a.m. and 5:00 p.m., Plaintiff was “stopped” by Rome Police Officers “John Doee
and John Doee” (the “defendant police officers”) in the City of Rome for “speeding” near the Colonial Laundromat. Id. at 8.
The defendant police officers claimed Plaintiff was going “50 in a 30 zone.” Id. But Plaintiff “was only doing 35 in a 30 zone
which is legal.” Id. Plaintiff believes he was “targeted and labeled” because he is a young “black mixed person.” Id. at 11.
Plaintiff claims when a “person of color” has “valuable things” like a car, “they ... label you as a drug dealer or a person who
conduct's crime.” Id.
During the traffic stop, the defendant police officers “searched” Plaintiff's name, told Plaintiff he “was under suspention,”
and instructed him to “get out of [the] car.” Id. at 8. Plaintiff was “unlawfully” handcuffed, and the defendant police officers
conducted a “patdown search” and “searched” the car. Id. He was “placed” in the back of the patrol car and “witntnessed” the
defendant police officers “pull” his female friend out of the car. Id. at 8-9. While holding her arms, “one officer pulled her
pant's/panties a way from her body” and “the other reached into her pant's/panties and pulled some thing out completely illegal
search.” Id. at 9. They then took Plaintiff's “book bag's out of the car and trunk 1 book bag was her's with personal paper's,
document's item's and looked thru it all[.]” Id. “They even took our cell phones” and “searched thru them with no warrent.” Id.
“Still to this date have not gotten my property back none of it they impounded my car. 6 Id.
6 Plaintiff was able to “get” his car “out” but it “cost me a lot” on a Sunday. (Dkt. No. 1 at 9.) But when he picked up
his car, he “had a flat tire and a dent on the passenger side .. [and] had to pay to get inside of car done due to coffiee
being spilt on ... swade seats and glitter being all over.” Id.
Plaintiff claims “driving under a suspention is a misdemeaner and dose not justify handcuffing or conducting a pat down search.”
Id. at 12. “It was a complete unlawful stop and all evidence need's to be suppressed.” Id.
When Plaintiff “arrived at RPD” on June 11, 2023, the “RPD” did not read Plaintiff his Miranda rights, and he was “interrogated”
without a lawyer being present and without being told he could have a lawyer. Id. at 9-12. “They” asked him questions like,
“why was i in Rome what was i doing where did i go in rome why how long ect.” Id. at 12.
A “couple” of months later, Plaintiff was “charged with what they found in her pant's/panties.” Id. at 9. On July 15, 2023, he
also was “charged with criminal possession of weapon 2nd: loaded firearm-other than person's home/business which charge is
still pending against me till this day.” Id. at 9-10.
*4 Plaintiff alleges the “Rome Police Officers and Chief of Police all took part in such conduct and letting such conduct
commence” and violated his constitutional rights. Id. at 10. Plaintiff claims “they” had “no ground's to pull me over” and the
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defendant police officers “should have had a female cop come and conduct that search” of his female friend. Id. at 9. “But even
so it would still have been unlawful due to them not having probable cause to search me, my car, or my friend what so ever.”
Id. According to Plaintiff, “it is 100% legal” to drive “35 in a 30 zone” therefore, the stop was “1000% not a valid traffic stop
at all” and that he “did not [break] any traffic violations or rule/law's.” Id. at 10. Plaintiff further claims “it is said in supreme
and other higher courts that you do not need a license to drive a car, SUV, truck in the United States ... it is protected by my
con. Amendment right travel 4 th , 5 th amendment rights's.” Id.
In his prayer for relief, Plaintiff seeks $2,000,000 and “for the officer's to be charged and procicuted for act's and investigate
RPD misconduct.” Id. at 4,13.
C. Nature of Action
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which establishes a cause of action for “ ‘the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S.
498, 508 (1990) (citations omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10,
1995) (finding that Ҥ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional
rights”).
“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). To establish liability against a government official under section
1983, “a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions,
has violated the Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676).
Moreover, the theory of respondeat superior is not available in a section 1983 action. See Hernandez v. Keane, 341 F.3d 137, 144
(2d Cir. 2003). Instead, “[t]he violation must be established against the supervisory official directly.” Tangreti, 983 F.3d at 618.
IV. ANALYSIS
The Court construes the allegations in the complaint with the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, 520
(1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by
lawyers.”). Upon review and for the reasons below, the Court finds Plaintiff's complaint fails to comply with the basic pleading
requirements and fails to state a claim. Accordingly, the Court recommends dismissal of the complaint in its entirety pursuant
to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim.
A. Rules 8 and 10
A complaint is subject to dismissal if its “form or substance prevents the defendant from forming a ‘fair understanding’ of the
plaintiff's allegations or otherwise prejudices the defendant in responding to the complaint.” Ong v. Park Manor (Middletown
Park) Rehab. & Healthcare Ctr., 51 F. Supp. 3d 319, 345 (S.D.N.Y. 2014). Ultimately, a complaint must give “fair notice” to
the defendants. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (“The function of pleadings under the Federal Rules is
to give fair notice of the claims asserted.” (internal quotation marks omitted)). Rule 8 “demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.
In this instance, Plaintiff's rambling complaint consists almost entirely of legal conclusions, rather than well-pleaded factual
allegations. As explained in more detail below, Plaintiff's complaint does not comply with Rule 8 because Plaintiff does not
make a short and plain statement showing that he is entitled to relief from the named defendants. Additionally, Plaintiff's
complaint does not comply with Rule 10 because it lacks numbered paragraphs, each limited as far as practicable to a single
set of circumstances.
B. Official Capacity Claims
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*5 Plaintiff's complaint does not specify whether he intends to bring claims against the named defendants in their individual or
official capacities. “A claim asserted against an individual in his official capacity ... is in effect a claim against the governmental
entity itself, rather than a suit against the individual personally, for ‘official-capacity suits generally represent only another way
of pleading an action against an entity of which an officer is an agent.’ ” Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir.
2012) (quoting Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 n.55 (1978)); Bryant v. Maffucci, 923 F.2d
979, 986 (2d Cir. 1991) (“In bringing suit against defendants in their official capacities, Bryant has effectively brought suit
against the governmental unit that employs them, Westchester County[.]”). Thus, the Court considers whether Plaintiff has
stated constitutional claims against the City of Rome, who is the real party in interest.
“A municipality is liable under section 1983 only if the deprivation of the plaintiff's rights under federal law is caused by a
governmental custom, policy, or usage of the municipality.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014)
(citing Monell, 436 U.S. at 691). Thus, to hold a municipality liable under Section 1983 for the unconstitutional actions of its
employees, “a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff
to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
Here, Plaintiff's claim construed against the City of Rome appears to stem from an isolated instance of alleged unconstitutional
conduct by the defendant police officers in the course of a traffic stop. Such an isolated act by a non-policymaking municipal
employee is “generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify liability.” Matusick,
757 F.3d 31 at 62 (2d Cir. 2014) (quoting Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012)). But such isolated instances
would be a basis for municipal liability if they were done
pursuant to municipal policy, or were sufficiently widespread and persistent to support a finding that
they constituted a custom, policy, or usage of which supervisory authorities must have been aware, or
if a municipal custom, policy, or usage would be inferred from evidence of deliberate indifference of
supervisory officials to such abuses.
Jones, 691 F.3d at 81. The only factual allegations potentially bearing on any such basis for municipal liability are the allegations
that Plaintiff is “being targeted” for being a “young and black mixed person of color.” (Dkt. No. 1 at 11.) Plaintiff states:
i feel this is at most descrimination at it's finest and racel profiling. That's a huge violation of my con.
Amendment right's. it's not okay or right one bit. Just because im a young black mixed person of color. it
is not right that RPD get's a way with thing's like this all the time, nothing ever get's done about it. They
do as they please and they find it okay to do such conduct's its completely not okay or right for such act's.
This need's to change it's not right at all, right is right wrong is wrong.”
Id. at 12. The Court infers this is an allegation of racially motivated police conduct. Plaintiff also list “harassment” as a cause
of action. 7 Id. at 13.
7 To the extent the complaint could be construed as asserting a verbal harassment claim, allegations of verbal harassment
are insufficient to support a Section 1983 claim. See Johnson v. Eggersdorf, 8 F. App'x 140, 143 (2d Cir. 2001) (citing
Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (“allegations of verbal harassment are insufficient to base a §
1983 claim if no specific injury is alleged”)); Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998) (holding that
“verbal harassment or profanity alone, unaccompanied by any injury no matter how inappropriate, unprofessional,
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or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not
actionable under 42 U.S.C. § 1983”) (quotation omitted); see also Rivera v. Goord, 119 F. Supp. 2d 327, 342 (S.D.N.Y.
2000) (collecting cases).
*6 “The Second Circuit has admonished that courts should ‘not condone racially motivated police behavior’ and must ‘take
seriously an allegation of racial profiling.’ ” Floyd v. City of New York, 959 F. Supp. 2d 540, 660 (S.D.N.Y. 2013) (quoting
United States v. Davis, 11 F. App'x 16, 18 (2d Cir. 2001)). In this case, however, Plaintiff's “general and conclusory” allegations
are insufficient to establish any plausible claim of municipal liability. Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir.
2015). Plaintiff alleges no other specific conduct by City of Rome officials, nor does he cite any other facts or circumstances
in support of any claim that a policy of racial profiling or racial animus exists in the City. Moreover, insofar as the complaint
may allege that employees of the Rome Police Department violated Plaintiff's constitutional rights, those allegations fail to state
a claim against the City of Rome because a municipality may not be liable on the basis of respondeat superior. See Monell,
436 U.S. at 691.
Accordingly, it is recommended that Plaintiff's official capacity claims be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b) for failure to state a claim. If Plaintiff intends to pursue claims against the City of Rome, he must name the City of
Rome as a defendant in the list of parties and state facts suggesting that a City policy, custom, or practice caused the violation
of his rights during or after the traffic stop.
C. Individual Capacity Claims Against Defendant David J. Collins
It is well-settled that “[d]ismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails
to indicate what the defendant did to the plaintiff.” Cipriani v. Buffardi, No. 9:06-CV-889 (GTS/DRH), 2007 WL 607341, at
*1 (N.D.N.Y. Feb. 20, 2007) (citing Gonzalez v. City of New York, No. 97-CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July
9, 1998)); see also Crown v. Wagenstein, No. 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion
of warden's name in complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F. Supp. 95, 99
(S.D.N.Y. 1997) (same).
In this case, Plaintiff names David J. Collins as a defendant in the recitation of parties, but the complaint lacks any specific
allegations of wrongdoing by this defendant. Rather, it appears Plaintiff has sued defendant Collins due to the supervisory
position he holds. The only reference to defendant Collins in the body of the complaint is as follows, “Rome Police Officers
and Chief of Police all took part in such conduct and letting such conduct commence violated my Con. Amendment right's
2nd, 4th, 5th, 14th. So i Willie T. Gosier's Jr's right's have been violated due to an illegal/unlawful stop they had no ground's
to pull me over.” (Dkt. No. 1 at 10.) Thus, the complaint does not include any plausible allegations of personal involvement
by defendant Collins.
Accordingly, it is recommended that Plaintiff's Section 1983 claims against defendant Collins be dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(b) for failure to state a claim. If Plaintiff intends to pursue Section 1983 claims against defendant
Collins, Plaintiff must sufficiently alleged defendant Collins’ personal involvement in the claimed violations.
D. Individual Capacity Claims Against Defendants John Doee # 1 and # 2
1. Unlawful Search and Seizure
The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const. amend. IV. A police officer may
briefly detain a suspect, consistent with the Fourth Amendment, when the officer has a reasonable suspicion that “criminal
activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968).
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In the context of traffic laws, “reasonable suspicion of a traffic violation provides a sufficient basis under the Fourth Amendment
for law enforcement officers to make a traffic stop.” United States v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009). Even a “minor”
traffic violation meets this standard and provides probable cause for a stop. United States v. Scopo, 19 F.3d 777, 782 (2d Cir.
1994) (finding police had probable cause to arrest defendant for “not signaling lane changes”), cert. denied, 513 U.S. 877 (1994).
*7 Here, Plaintiff's claims alleging violations of constitutional rights arising from the traffic stop are undermined by his own
admissions in the complaint. 8 Specifically, Plaintiff claims he was pulled over for speeding. (Dkt. No. 1 at 8.) Contrary to
Plaintiff's assertion, travelling over maximum speed limits is a violation of New York State Vehicle and Traffic Law, thus
providing probable cause for the traffic stop. See N.Y. Veh. & Traf. Law § 1180(d).
8 As described above, Plaintiff also takes issue with the June 11, 2023, search of his female friend. However, a pro se
plaintiff cannot bring any claims on behalf of any other plaintiff. See Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)
(because pro se means to appear for oneself, a person may not appear on another person's behalf in the other's cause).
Though Plaintiff contends the reason cited by the defendant police officers was pretextual, the subjective intent of an officer
performing a traffic stop is irrelevant. United States v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir. 1998) (“[A]n officer's use of
a traffic violation as a pretext to stop a car in order to obtain evidence for some more serious crime is of no constitutional
significance.”); see, e.g., Aikman v. Cnty. of Westchester, 491 F. Supp. 2d 374, 381 (S.D.N.Y. 2007) (dismissing the plaintiff's
Fourth Amendment “racial profile claim” where the officers “had probable cause to believe [the plaintiff] violated New York
traffic laws”).
Once a lawful traffic stop based on probable cause has occurred, a police officer may make “ordinary inquiries incident to the
traffic stop,” and “[t]ypically such inquiries involve checking the driver's license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Rodriguez v. United States,
575 U.S. 348, 355 (2015) (alterations omitted). Additionally, if the traffic stop is lawful, neither the driver nor any passengers
have a “Fourth Amendment interest in not being ordered out of the stopped vehicle.” Mollica v. Volker, 229 F.3d 366, 369 (2d
Cir. 2000). Indeed, “a police officer may as a matter of course, order” a passenger or a driver out of “a lawfully stopped car.”
Maryland v. Wilson, 519 U.S. 408, 410 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per curiam)).
Based on the information provided in the complaint, it appears the defendant police officers learned Plaintiff did not have a
valid driver's license. Plaintiff alleges after the stop, the defendant police officers “searched my name they then returned told
me i was under suspention which i was not under suspention told me get out of my car and unlawfully handcuffed me conducted
a patdown search of me searched my car with out probable cause place me in the back of the patrole car.” (Dkt. No. 1 at 8.) The
defendant police officers also searched Plaintiff's friend and “some thing” was “pulled” from her “pant's/panties.” Id. at 8-9.
Plaintiff also accuses the defendant police officers of invading his “privacy” when they conducted a “pat down search,” searched
his car, and “took” his personal belongings including paperwork, documents, cell phones, and book bags without consent or
a warrant. (Dkt. No. 1 at 3.) Plaintiff was then apparently taken to the Rome Police Department. Id. at 11-12. There are no
allegations that the stop lasted any longer than necessary. As such, Plaintiff has not stated a constitutional claim concerning a
prolonged and unconstitutional seizure. See Rodriguez, 575 U.S. at 354.
*8 Insofar as Plaintiff claims that “driving under a suspention is a misdemeanor” and does “not justify handcuffing and or
conducting a patdown search,” and “you do not need a license to drive a car ... in the United States of America,” Plaintiff is
mistaken. (Dkt. No. 1 at 10, 12.) Under New York's Vehicle & Traffic Laws, a valid driver's license is required to operate a
motor vehicle. See N.Y. Veh. & Traf. Law § 509; see also id. § 511 (prohibiting operating a car without a valid license). Thus,
while the precise details are unclear, it appears the defendant police officers likely had probable cause to believe Plaintiff had
committed a criminal offense. And a search incident to an arrest, “constitutes an exception to the warrant requirement” imposed
by the Fourth Amendment. 9 Riley v. California, 573 U.S. 373, 382 (2014).
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9 In New York a person is guilty of Criminal Possession of a Weapon in the second degree if he or she possesses a
loaded firearm and does not have a license to possess such a firearm. See Bannister v. Luis, No. 18-CV-7285, 2022 WL
19402512, at *45 (E.D.N.Y. Feb. 16, 2022) (citing N.Y. Penal Law § 265.03), report and recommendation adopted as
modified, 2023 WL 2325680 (E.D.N.Y. Mar. 2, 2023). Under New York law, the existence of a firearm in an automobile
creates a permissive presumption that all occupants of the vehicle have common constructive possession of the firearm,
absent certain statutory exceptions which are inapplicable here. Id. “If a jury may make a presumption of possession
under the law, it is reasonable for a police officer to do the same.” Id. Thus, regardless of whether the firearm was found
on the Plaintiff's person or in his car, the officers had probable cause for his arrest.
Additionally, the automobile exception to the warrant requirement of the Fourth Amendment permits officers to “conduct a
warrantless search of a vehicle if they have probable cause to believe it contains contraband or other evidence of a crime.”
United States v. Wilson, 699 F.3d 235, 245 (2d Cir. 2012). Probable cause requires only a “fair probability” that evidence of a
relevant violation will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238 (1983). When the exception
applies, officers may search any area of the vehicle in which they have “probable cause to believe contraband or evidence is
contained.” California v. Acevedo, 500 U.S. 565, 580 (1991); see also United States v. Ross, 456 U.S. 798, 825 (1982) (“If
probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search.”); see also United States v. Harris, No. 21-CR-376, 2022 WL 13798289,
at *2 (E.D.N.Y. Oct. 21, 2022).
In sum, based on the information provided in Plaintiff's complaint, it appears the defendant police officers likely had probable
cause to stop and arrest Plaintiff. Armed with probable cause, the search of Plaintiff's person and vehicle appears to have been
a lawful search incident to arrest. See United States v. Jenkins, 496 F.2d 57, 79 (2d Cir. 1974) (finding search prior to arrest
to be lawful “as long as probable cause to arrest existed at the time of the search”); see generally Thornton v. United States,
541 U.S. 615, 617 (2004) (holding search of vehicle's passenger compartment to be contemporaneous incident of arrest, though
driver arrested outside vehicle).
Accordingly, it is recommended that Plaintiff's Section 1983 illegal search and seizure claim against the defendant police officers
be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim. 10
10 Plaintiff claims he was “charged” with “what they found” on his friend's person and also charged with “possession of a
weapon 2nd: loaded firearm-other than person's home/business.” (Dkt. No. 1 at 9-10.) Plaintiff states “the loaded firearm
charge” is “still pending against me till this day.” Id. at 10. The Court notes, however, that under abstention principles,
the Court typically refrains from intervening in a state-court criminal proceeding. See, e.g., Sprint Commc'ns, Inc. v.
Jacobs, 571 U.S. 69, 73 (2013). Moreover, to the extent that Plaintiff seeks the remedy of “suppression” of any items
seized during the search, that remedy is simply inapplicable in a § 1983 suit. See Townes v. City of New York, 176 F.3d
138, 145 (2d Cir. 1999) (“The fruit of the poisonous tree doctrine ... is inapplicable to civil § 1983 actions.”).
2. False Arrest
*9 “A [Section] 1983 claim for false arrest[ ] resting on the Fourth Amendment ... is substantially the same as a claim for
false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted). “Under New York law,
a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and
without justification.” Id. Probable cause “is a complete defense to an action for false arrest” brought under New York law or
section 1983. Id. (citation omitted). Police officers have probable cause to arrest when they possess “knowledge of, or reasonably
trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief
that an offense has been or is being committed by the person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.
2007) (collecting cases); see, e.g., Johnson v. Harron, No. 91 Civ. 1460, 1995 WL 319943, at *9 (N.D.N.Y. May 23, 1995)
(concluding that DMV computer information showing driver's license was suspended established probable cause for arrest).
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Read liberally, the complaint may raise a claim for false arrest. Plaintiff claims he was handcuffed, placed in the patrol car, was
taken to the Rome Police Department, and was not read his Miranda rights. (Dkt. No. 1 at 8-12.) But the complaint focuses on
the initial traffic stop and search and does not include details about the basis for the arrest that would allow the Court to evaluate
whether he was arrested without justification. Accordingly, it is recommended that Plaintiff's Section 1983 false arrest claim be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) for failure to state a claim. 11
11 If Plaintiff intends to bring such a claim, he should amend his complaint to add facts establishing that he was arrested
without justification and the disposition of any charges.
3. Excessive Force
“The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of
effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). To succeed on an excessive force claim, “a plaintiff must
ultimately demonstrate that the defendant's use of force was objectively unreasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Hulett v. City of Syracuse, 253 F. Supp. 3d 462, 491
(N.D.N.Y. 2017) (internal quotations omitted). The “objective reasonableness” inquiry is “case and fact specific and requires
balancing the nature and quality of the intrusion on the plaintiff's Fourth Amendment interests against the countervailing
governmental interests at stake.” Tracy, 623 F.3d at 96 (citing Amnesty America v. Town of West Hartford, 361 F.3d 113, 123
(2d Cir. 2004)).
Here, “excessive force” is listed as a cause of action. (Dkt. No. 1 at 13.) Plaintiff claims he was “unlawfully pulled out of [his]
car,” “handcuffed” and subjected to a “pat down search.” Id. at 8. With this allegation and nothing more, there are simply not
enough facts present to establish a plausible excessive force claim. See Burroughs v. Petrone, 138 F. Supp. 3d 182, 214 (N.D.N.Y.
2015) (excessive force claim based on rough pat and frisk and push by officers, without other facts or injury alleged, dismissed);
see also Bancroft v. City of Mount Vernon, 672 F. Supp. 2d 391, 406 (S.D.N.Y. 2009) (declining to find any constitutional
violation from plaintiff's allegations of officers’ forceful behavior, including a “single push,” during the time he was handcuffed).
Accordingly, it is recommended that Plaintiff's Section 1983 excessive force claim be dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A(b) for failure to state a claim.
4. Due Process
The complaint lists “5th Due Prosses” as a claim and Plaintiff states “I also have a privilege aganced self incrimination suspect's
statement's, comment's remark's before Miranda rights cant be used in court.” (Dkt. No. 1 at 12, 13.) “While a defendant
has a constitutional right not to have a coerced statement used against him, the failure to provide Miranda warnings does not
constitute a Fifth Amendment violation or a violation of federal law.” Jallow v. Geffner, No. 23-CV-3969, 2024 WL 37073,
at *10 (S.D.N.Y. Jan. 2, 2024) (citing Vega v. Tekoh, 597 U.S. 134, 142-152 (2022)); see also Deshawn E. by Charlotte E.
v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) (relying on New York v. Quarles, 467 U.S. 649, 654 (1984) (a defendant does not
have a constitutional right to receive Miranda warnings because warnings are only a procedural safeguard designed to protect
a person's right against self-incrimination)).
*10 Generally, “no cause of action exists under 42 U.S.C. § 1983 for Miranda violations.” Gentry v. New York, No. 1:21-
CV-319 (GTS/ML), 2021 WL 3037709, at *7-8 (N.D.N.Y. June 14, 2021), report and recommendation adopted, 2021 WL
3032691 (N.D.N.Y. July 19, 2021) (quoting Hernandez v. Llukaci, No. 16-CV-1030, 2019 WL 1427429, at *7 (N.D.N.Y. Mar.
29, 2019) (Hurd, J.) (citing Chavez v. Martinez, 538 U.S. 760, 767 (2003))). “The failure to inform a plaintiff of his rights
under Miranda, ‘does not, without more, result in § 1983 liability.’ ” Id. (quoting Deshawn E. v. Safir, 156 F.3d at 346). “The
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remedy for a violation of the right against self-incrimination is ‘the exclusion from evidence of any ensuing self-incriminating
statements’ and ‘not a § 1983 action.’ ” Id. (quoting Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995)) (internal quotations
omitted). However, “ ‘[a] Miranda violation that amounts to actual coercion based on outrageous government misconduct is
a deprivation of a constitutional right that can be the basis for a § 1983 suit, even when a confession is not used against the
declarant in any fashion.’ ” Id. (quoting Deshawn E. v. Safir, 156 F.3d at 348 (internal citations omitted)).
Here, the complaint does not allege any facts that would plausibly suggest police coercion led to inculpatory statements. As
a result, it is recommended that Plaintiff's Section 1983 due process claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)
(B), 1915A(b) for failure to state a claim.
5. Right to Travel
The complaint lists “5th right to travel” as a claim. (Dkt. No. 1 at 3, 13.) “The Constitution protects a fundamental right to
travel within the United States,” Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 99 (2d Cir. 2009), but “travelers do not have a
constitutional right to the most convenient form of travel, and minor restrictions on that travel simply do not amount to the
denial of a fundamental right[.]” Scott v. Crossway, No. 1:22-CV-500 (BKS/CFH), 2022 WL 16646531, at *10 (N.D.N.Y. Nov.
3, 2022) (quoting Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (alterations, citations, and quotation
marks omitted)), report and recommendation adopted, 2023 WL 34543 (N.D.N.Y. Jan. 4, 2023);
Even liberally construed, Plaintiff has not alleged any facts to suggest a violation of his constitutional right to travel. Plaintiff's
allegations regarding his right to travel relate to the traffic stop and seizure of his vehicle, which is akin to his illegal search
and seizure claim. See, e.g., Wellington v. Foland, No. 3:19-CV-0615 (GTS/ML), 2019 WL 3315181, at *6 (N.D.N.Y. July 24,
2019), report and recommendation adopted, 2019 WL 6485157 (N.D.N.Y. Dec. 3, 2019); Bey v. D.C., No. 17-CV-6203, 2018
WL 5777021, at *6 (E.D.N.Y. Nov. 1, 2018) (dismissing the plaintiff's “right to travel claim” where the plaintiff retained his
ability and constitutional right to travel even if “inconvenienced” by the seizure of his motor vehicle.”); 12 see also Johnson
El v. Bird, No. 19-CV-5102, 2020 WL 5124920, at *5 n.8 (S.D.N.Y. Aug. 31, 2020) (“To the extent Plaintiff means to argue
that traffic enforcement violates his right to travel, that claim is dismissed as frivolous.”) (citing Annan v. State of N.Y. Dep't
of Motor Vehicles, No. 15-CV-1058, 2016 WL 8189269, at *5 (E.D.N.Y. Mar. 2, 2016), aff'd, 662 F. App'x 85 (2d Cir. 2016)
(summary order)).
12 To the extent Plaintiff claims the defendant police officers deprived him of a property interest by impounding his
car, Plaintiff has not pled facts sufficient to establish that he was deprived of that interest without due process. See,
e.g., Hawthorne by Hawthorne v. Cnty. of Putnam, 492 F. Supp. 3d 281, 304 (S.D.N.Y. 2020) (noting that where the
defendants’ impounded the plaintiff's car following a traffic stop the conduct did not implicate procedural due process
concerns); Vasquez v. Yadali, No. 16-CV-895, 2020 WL 1082786, at *12 (S.D.N.Y. Mar. 5, 2020) (noting that the plaintiff
fails to allege the inadequacy of any post-deprivation hearings following the impoundment of his vehicle); Domeneck v.
City of New York, No. 18-CV-7419, 2019 WL 5727409, at *10 (S.D.N.Y. Nov. 5, 2019) (dismissing plaintiff's Fourteenth
Amendment claim regarding the deprivation of his vehicle because the plaintiff has not plausibly alleged that the process
he received was insufficient).
*11 The Court therefore recommends dismissing Plaintiff's Section 1983 right to travel claim pursuant to 28 U.S.C. §§ 1915(e)
(2)(B), 1915A(b) for failure to state a claim.
6. Right to Bear Arms
The complaint lists “2nd Bear Arm's” as a claim. (Dkt. No. 1 at 13.) The “Second Amendment protects ‘an individual right to
keep and bear arms.’ ” District of Columbia v. Heller D.C. v. Heller, 554 U.S. 570, 595 (2008). But “[l]ike most rights, the right
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secured by the Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 626. For example, the Second Amendment allows “prohibitions on the possession
of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 627-28.
Here, Plaintiff's conclusory allegation regarding his right to “Bear Arm's” provided by the Second Amendment is insufficient
to state a plausible claim for relief given the numerous limitations on an individual's right to bear arms. See, e.g., McClenic v.
Shmettan, No. 15-CV-00705, 2016 WL 3920219, at *8 (E.D.N.Y. July 15, 2016) (dismissing the plaintiff's conclusory allegation
that defendant detectives violated his Second Amendment right “to keep and bear arms” where, inter alia, was charged with
criminal possession of a weapon second degree in a felony complaint); see also Partin v. Gevatoski, No. 6:19-CV-1948-AA,
2020 WL 4587386, at *4 (D. Or. Aug. 10, 2020) (“The mere occurrence of a firearm seizure during a traffic stop, however,
is not enough to establish a Second Amendment violation. Police seize and confiscate firearms routinely, and this Court will
not presume that each and every one of those seizures is an automatic Second Amendment violation without specific facts
indicating such.”).
Accordingly, the Court recommends dismissing Plaintiff's Section 1983 right to bear arms claim pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A(b) for failure to state a claim. 13
13 See also supra note 10 and accompanying text.
E. Private Prosecution
To the extent Plaintiff seeks an order from this Court directing the defendants to be “charged and prosicuted for Act's and
investigate RPD misconduct,” (Dkt. No. 1 at 3, 13), he is not entitled to such as order because “the decision to prosecute is
solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Neither Plaintiff nor the Court can
direct prosecutors to initiate a criminal proceeding against any defendant because prosecutors possess discretionary authority
to bring criminal actions and they are “immune from control or interference by citizen or court[.]” Conn. Action Now, Inc. v.
Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).
F. Supplemental Jurisdiction
A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of
the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Having recommended dismissal of the federal claims of which
the Court has original jurisdiction, it is also recommended that the District Court decline to exercise its supplemental jurisdiction
of any state law claims Plaintiff may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in
which district courts can refuse its exercise.’ ”) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).
V. OPPORTUNITY TO AMEND
*12 Generally, before the Court dismisses a pro se complaint or any part of the 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). Futility is present when the problem with plaintiff's
causes of action is substantive such that better pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(citation omitted).
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For reasons set forth above, the Court finds Plaintiff's complaint is subject to dismissal in its entirety pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1) for failure to state a claim. However, in light of his pro se status, prior to outright dismissal of
this action, the Court recommends that Plaintiff be given an opportunity to amend his pleading.
Plaintiff is advised that, should the District Court permit Plaintiff to file an amended complaint, and if he chooses to avail
himself of an opportunity to amend, such amended pleading must cure the defects set forth above. 14 Specifically, the pleading
must set forth a short and plain statement of the facts on which he relies to support any legal claims asserted. Fed. R. Civ. P. 8(a).
The body of the pleading must contain sequentially numbered paragraphs containing only one act of alleged misconduct per
paragraph. Fed. R. Civ. 10. No portion of any prior complaint shall be incorporated into the amended complaint and piecemeal
pleadings are not permitted.
14 Plaintiff should not submit an amended complaint before the District Court issues a Decision and Order on this
Report-Recommendation. As noted below, however, Plaintiff may file written objections to this Court's Report-
Recommendations.
The Court notes that in Gosier II, Plaintiff alleged he was “pulled over” on June 11, 2023, by officers of the Utica Police
Department “without probable cause and proceeded to illegally search [his] vehicle.” Gosier II, No. 6:23-cv-01119 (DNH/
TWD), ECF Dkt. No. 1 at 9. Plaintiff also alleged he was “maliciously prosecuted” and “arrested and charged with Criminal
Possession of a Controlled Substance 7th and Aggravated Unlicensed Operation of Motor Vehicle 3rd.” Id. Plaintiff's original
complaint was sua sponte dismissed on initial review with leave to amend. Id., ECF Dkt. Nos. 10, 12. On February 5, 2024,
Plaintiff's request for an extension of time until March 16, 2024, to submit his amended complaint was granted. Id., ECF Dkt.
No. 19. At this juncture, it is unclear whether the subject traffic stop in Gosier II is the same traffic stop at issue in this action.
Plaintiff should explain the relationship, if any, between the June 11, 2023, traffic stop at issue in this action and the June 11,
2023, traffic stop at issue in Gosier II.
VI. CHANGE OF ADDRESS
According to information publicly available on the website maintained by the New York State Department of Corrections and
Community Supervision (“DOCCS”), Willie Gosier (DIN 22B2574) was released from custody on parole on February 26,
2024. 15 Plaintiff is reminded that he must update his address with the Court immediately upon relocating. For the orderly
disposition of cases, it is essential that litigants honor their continuing obligation to keep the Court informed of address changes.
“Failure to notify the Court of a change of address in accordance with L.R. 10.1(c)(2) may result in the dismissal of any pending
action.” L.R. 41.2(b).
15 See http://nysdoccslookup.doccs.ny.gov (last visited Mar. 8, 2024).
VII. CONCLUSION
*13 WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is GRANTED, and it is further
RECOMMENDED that Plaintiff's complaint be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)
with LEAVE TO AMEND; and it is further
RECOMMENDED that the District Court decline to exercise its supplemental jurisdiction of any state law claims Plaintiff
may be asserting; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the
unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
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ORDERED that Plaintiff is required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any
change in his address; the failure to do so will result in the dismissal of his action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing
report. 16 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 (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, 6(a).
16 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days
will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-
Recommendation 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).
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1016392
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2024 WL 1307035
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Willie Thomas GOSIER, Plaintiff,
v.
David J. COLLINS et al., Defendants.
6:23-CV-1485
|
Signed March 27, 2024
Attorneys and Law Firms
WILLIE THOMAS GOSIER, Plaintiff, Pro Se, 22-B-2574, Elmira Correctional Facility, P.O. Box 500, Elmira, NY 14902.
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On November 29, 2023, pro se plaintiff Willie Thomas Gosier (“plaintiff”), who was recently released to State parole, filed
this 42 U.S.C. § 1983 action alleging that the defendants violated his civil rights during a traffic stop in Rome, New York. Dkt.
No. 1. Along with his complaint, plaintiff moved for leave to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 2, 3.
On March 8, 2024, U.S. Magistrate Judge Thérèse Wiley Dancks granted plaintiff's IFP Application and advised by Report &
Recommendation (“R&R”) that plaintiff's complaint be dismissed with leave to amend. Dkt. No. 4.
Plaintiff has not filed objections, and the time period in which to do so has expired. See Dkt. No. 4. Upon de novo review, the
R&R is accepted and will be adopted. See 28 U.S.C. § 636(b)(1)(C).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. Plaintiff's complaint is DISMISSED with leave to amend;
3. Plaintiff shall have thirty (30) days in which to file an amended complaint that conforms with the specific instructions set
forth in the R&R;
4. If plaintiff timely files an amended pleading, the Clerk is directed to return the matter to Judge Dancks for further review
as appropriate;
5. If plaintiff does not timely file an amended pleading, the Clerk is directed to close this matter without further Order of the
Court.
IT IS SO ORDERED.
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All Citations
Not Reported in Fed. Supp., 2024 WL 1307035
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Georges v. Rathner, Not Reported in Fed. Supp. (2017)
2017 WL 8230677
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2017 WL 8230677
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Agnes GEORGES, Plaintiff,
v.
Levy RATHNER and Felix Phillipe, Defendants.
No. 1:17-CV-1246 (DNH/CFH)
|
Signed 12/22/2017
Attorneys and Law Firms
Agnes Georges, Baldwin, NY, pro se.
REPORT-RECOMMENDATION AND ORDER 1
1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.
L.R. 72.3(c).
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Agnes Georges commenced this action on November 13, 2017 with the filing of a complaint. Dkt. No. 1
(“Compl.”). In lieu of paying this Court's filing fee, plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”). Dkt. No. 2.
Plaintiff also filed a Motion for Appointment of Counsel. Dkt. No. 3. After reviewing plaintiff's IFP application, Dkt. No. 2,
the undersigned determines that plaintiff qualifies to proceed IFP. 2
2 Plaintiff is advised that, despite being granted IFP status, she will still be required to pay any costs she incurs in this
action, such as copying fees or witness fees.
I. Initial Review
A. Legal Standards
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss
the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). It is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting
her to proceed with her action. As plaintiff is representing himself, the court must afford plaintiff special solicitude; thus, it is to
consider her claims “liberally” and “interpret them ‘to raise the strongest arguments that they suggest.’ ” Cold Stone Creamery,
Inc. v. Gorman, 361 Fed.Appx. 282, 286 (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)).
Pleading guidelines are set forth in the Federal Rules of Civil Procedure. Specifically, Rule 8 provides that a pleading which
sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled
to relief.” See FED. R. CIV. P. 8(a)(2). “The purpose ... is to give fair notice of the claim being asserted so as to permit the
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adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and citations omitted).
Rule 8 also requires the pleading to include:
(1) a short and plain statement of the grounds for the court's jurisdiction ...;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought ....
FED. R. CIV. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make clear that each allegation contained
in the pleading “must be simple, concise, and direct.” Id. at 8(d).
Further, Rule 10 of the Federal Rules provides in pertinent part that:
[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances. A later 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.
*2 FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails
to comply with the pleading requirements “presents far too a heavy burden in terms of defendants' duty to shape a comprehensive
defense and provides no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.
352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not comply with the requirement that it be
short and plain, the court has the power, on its own initiative ... to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40,
42 (2d Cir. 1988) (citations omitted). However, “[d]ismissal ... is usually reserved for those cases in which the complaint is so
confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted).
In such cases of dismissal, particularly when reviewing a pro se complaint, the court generally affords the plaintiff leave to
amend the complaint. Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995). A court should not dismiss a complaint if the
plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
B. Plaintiff's Complaint
Plaintiff's complaint in this action is written on a form for complaints filed pursuant to the Americans with Disabilities Act
(“ADA”). See Compl. Plaintiff's complaint is a difficult to follow stream of consciousness. See id. Although plaintiff checks
the boxes on the form complaint that her claims involve a failure to employ, termination of employment, and retaliation, it is
entirely unclear how defendants discriminated against her on the basis of a disability. Plaintiff does not identify that she is a
“person with a disability within the meaning of the ADA”. Id. at 3; Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d Cir.
2003). Further, she does not contend that she was ever employed by any of the named defendants or explain how she suffered an
adverse employment action due to her disability at the hands of defendants. Id. Moreover, plaintiff indicates, through checking
boxes on the Civil Cover sheet, that her case involves several additional areas of the law, but does not explain how her case
involves any of these areas of the law. Dkt. No. 1-1. Plaintiff checks the boxes indicating that her lawsuit also involves: (1)
contract: recovery of defaulted student loans; (2) personal injury: assault, libel, slander, motor vehicle, motor vehicle product
liability, health care/pharmaceutical personal injury; (3) personal property: other fraud, truth in lending; (4) civil rights: other
civil rights, employment, education; (5) labor: labor/management relations, Family and Medical Leave Act; (6) Bankruptcy:
Appeal 28 USC 158, Withdrawal 28 USC 157; and (7) Other Statutes: False Claims Act, Racketeer Influenced and Corrupt
Organizations, Cable/Sat TV, Environmental Matters, Freedom of Information Act. Id. at 1.
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Plaintiff's complaint completely fails to meet the pleading guidelines of Federal Rules of Civil Procedure 8 and 10. Plaintiff
makes unexplained references to a “network” which appears to be involved in a conspiracy against her to improperly label her
as HIV positive, cause her to be dismissed from school, suspend her passport to her native country, and commit various crimes
against her. Id. at 3-4. Plaintiff names as defendants in the caption Levy Rathner and Felix Phillpe, but lists as defendants within
the form complaint “Police Headquarter two of them” and “212-777-777 PC Company in NY City.” Compl. at 2. However,
plaintiff does not explain how any of these defendants are personally involved in any violation of a federal law or right. Further,
plaintiff sets forth no cognizable avenue for relief. In her prayer for relief, plaintiff makes states:
I will be back to social service to see what they have on file for me, break my disability request, go back to
work even if I don't feel like it until I hear from US Attorney/District in Albany, you know why is because
all crime made in Albany, NY, unemployment, child maltreatment, Discrimination, Divorce + elses.
*3 Id. at 4. As plaintiff's complaint fully fails to permit this Court to assess the nature of her claims, it is the undersigned's
opinion that it must be dismissed.
Plaintiff has commenced at least seven other actions within this district in the last year. The undersigned's review of those
cases reveal that all of them have either been dismissed or recommendations for dismissal are pending. 3 In addition, review of
these cases suggest that they are all about the same or related matters, as they appear to reference similar defendants, discuss
“networks,” and defendants committing various crimes against plaintiff and/or her family. See n.3, supra. Thus, although pro se
plaintiffs generally are to be accorded an opportunity to amend prior to outright dismissal, such opportunity is not recommended
here, as it is clear from plaintiff's complaint and her previous filings, that any attempt at an amended complaint would be futile.
Accordingly, it is recommended that plaintiff's complaint be dismissed with prejudice, and that her motion for appointment of
counsel (dkt. no. 3) be denied as moot.
3 See Georges v. Rathner (DNH/DJS), 1:17-CV-1276; Georges v. Duchene (DNH/DJS), 1:17-CV-86 (dismissed for failure
to comply with Court's Order); Georges v. Schneiderman (BKS/DJS), 1:17-CV-524 (dismissed for failure to state a
claim); Georges v. Gov. Tower VA, 1:17-CV-1244 (TJM/ATB); (recommendation pending for dismissal with prejudice
for failure to state a claim and frivolity); Georges v. Rathner (BKS/DJS) 1:17-CV-1245 (recommendation for dismissal
with prejudice pending); Georges v. Cuomo (TJM/DJS), 1:17-CV-1247 (recommendation for dismissal with prejudice
pending); Georges v. Hatser, 1:17-CV-1242 (GTS/CFH) (recommendation for dismissal with prejudice pending).
II. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) be GRANTED for purposes of filing only; and it is
RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be dismissed sua sponte with prejudice, and it is
ORDERED, that plaintiff's Motion for Appointment of Counsel (Dkt. No. 3) be DENIED as moot; and it is further
ORDERED, that the Clerk of the Court serve this Report-Recommendation and Order on plaintiff in accordance with the Local
Rules.
IT IS SO ORDERED.
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Pursuant to 28 U.S.C. § 636(b)(1), parties may lodge written objections to the foregoing report. Such objections shall be filed
with the Clerk of the Court “within fourteen (14) days after being served with a copy of the ... recommendation.” N.Y.N.D. L.R.
72.1(c) (citing 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892
F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).
All Citations
Not Reported in Fed. Supp., 2017 WL 8230677
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Georges v. Rathner, Not Reported in Fed. Supp. (2018)
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2018 WL 1353058
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Agnes GEORGES, Plaintiff,
v.
Levy RATHNER and Felix Phillipe, Defendants.
1:17-CV-1246 (DNH/CFH)
|
Signed 03/15/2018
Attorneys and Law Firms
AGNES GEORGES, 5 Lowell Place Baldwin, NY 11510, pro se.
DECISION and ORDER
DAVID N. HURD, United States District Judge
*1 Pro se plaintiff Agnes Georges brought this civil action against Levy Rathner and Felix Phillipe. On December 22, 2017, the
Honorable Christian F. Hummel, United States Magistrate Judge, advised by Report-Recommendation that plaintiff's complaint
be dismissed sua sponte with prejudice. No objections to the Report-Recommendation have been filed.
Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation
is accepted in whole. See 28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
Plaintiff's complaint is DISMISSED without leave to amend.
The Clerk is directed to file judgment accordingly and close the file.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1353058
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Georges v. Hatser, Not Reported in Fed. Supp. (2018)
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2018 WL 816846
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United States District Court, N.D. New York.
Agnes GEORGES, Plaintiff,
v.
Joel HATSER, Advisor Lawyer; Joseph Ciavanitti, US Attorney
Lawyer; Kurt Bratten Brian, Bar Association 518-445-7691, Defendants.
No. 1:17-CV-1243 (GTS/CFH)
|
Signed 01/02/2018
Attorneys and Law Firms
Agnes Georges, Albany, NY, pro se.
REPORT-RECOMMENDATION AND ORDER 1
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y. L.R. 72.3(c).
Christian F. Hummel, U.S Magistrate Judge
*1 Plaintiff pro se Agnes Georges commenced this action on November 13, 2017 with the filing of a complaint. Dkt. No. 1
(“Compl.”). In lieu of paying this Court's filing fee, plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”). Dkt. No. 2.
Plaintiff also filed a Motion for Appointment of Counsel. Dkt. No. 3. After reviewing plaintiff's IFP application, Dkt. No. 2,
the undersigned determines that plaintiff qualifies to proceed IFP for purposes of filing. 2
2 Although she has been granted IFP status in connection with filing this complaint, plaintiff will still be required to pay
any fees she may incur in this action.
I. Initial Review
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss
the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). 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. As plaintiff is representing herself, the Court is to consider her claims “liberally”
and “interpret them ‘to raise the strongest arguments that they suggest.’ ” Cold Stone Creamery, Inc. v. Gorman, 361 Fed.Appx.
282, 286 (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)).
II. Plaintiff's Complaint
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Plaintiff's complaint in this action consists of a form civil rights complaint. Plaintiff states that each named defendant, who
she identifies as lawyers, “refuse to help me.” Compl. at 1-2. It appears that plaintiff contacted all of these defendants for
some form of assistance, and was denied such assistance. See id. She suggests that these defendants are aware of a conspiracy
involving Levy Rathner, “a US Gov Commander Chief” and the police, but defendants “prefer to protect him not me.” Id. at
2. It appears that plaintiff sought to file a report with police about certain crimes committed against her, but was not allowed
to file a report or provide an order of protection. Id. at 4. Plaintiff has not named any police officer or police department as
a defendant in this action.
As indicated above, plaintiff's complaint makes unexplained references to “Levy Rathner,” who is not a named defendant, and
also refers to a “crime” or a “network,” “corruption, stealing cards, use fake ID, fake credit card, steal my identity, use them for
somebody else, a damage for life.” Compl. at 3. Plaintiff provides that she “feel[s] unsafe wherever I go, federal police keep
follow [sic] me, I am an [sic] spy.” Id. at 4. However, plaintiff does not explain any of these allegations. Her complaint does
not detail to any degree how the named defendants were personally involved in these alleged wrongs. Moreover, the complaint
does not explain how any of the named defendants violated any federal law or any of her constitutional rights. To the extent that
plaintiff suggests that she sought legal assistance from the named defendants, and that defendants either declined to represent
her or declined to prosecute certain alleged crimes, a prosecutor's decision not to prosecute 3 a case 4 or a lawyer's decision
not to represent an individual 5 does not amount to a violation of the law. Id. at 3. Plaintiff's complaint also does not provide
a clear demand for relief. Id. at 6.
3 “ ‘[P]rosecutors are absolutely immune from liability under § 1983’ in matters involving the prosecution—or failure to
prosecute—individuals.” Wagner v. Mollen, 5:05-CV-1290 (NAM/DEP), 2005 WL 2592417, at *1 (N.D.N.Y. Oct. 13,
2005) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)).
4 Plaintiff may arguably be arguing that one of the named defendants, who she identified as a “US Attorney Lawyer,”
improperly declined to prosecute certain unnamed persons or entities.
5 Plaintiff does not contend that she paid any of these attorneys a retainer fee to represent her as her attorney.
*2 Pleading guidelines are set forth in the Federal Rules of Civil Procedure. Specifically, Rule 8 provides that a pleading
which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader
is entitled to relief.” See FED. R. CIV. P. 8(a)(2). “The purpose ... is to give fair notice of the claim being asserted so as to
permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the
doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and
citations omitted). Rule 8 requires:
(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).
Further, Rule 10 of the Federal Rules provides in pertinent part that:
[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If
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doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each
defense other than a denial—must be stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails
to comply with the pleading requirements “presents far too a heavy burden in terms of defendants' duty to shape a comprehensive
defense and provides no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.
352, 355 (N.D.N.Y. 1996).
As the Second Circuit has held, “[w]hen a complaint does not comply with the requirement that it be short and plain, the court
has the power, on its own initiative ... to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations
omitted). However, “[d]ismissal ... is usually reserved for those cases in which the complaint is so confused, ambiguous, vague,
or otherwise unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted). In such cases of dismissal,
especially with respect to a pro se complaint, the court generally affords the plaintiff leave to amend the complaint to state
a nonfrivolous claim. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995). A court should not dismiss a complaint if
the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Although detailed allegations are not required, the complaint must still include sufficient facts to afford
the defendants fair notice of the claims and the grounds upon which they are based and to demonstrate a right to relief. Id. at
555-56. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
In reviewing a pro se complaint, the Court must “liberally construe [the] pleadings,” and interpret the complaint to “raise the
strongest arguments it suggests.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). However, conclusory allegations are not
sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
*3 Plaintiff's complaint does not comply with the pleading requirements, and it is not possible, for the Court to assess how any
named defendant was personally involved in any violation of federal law, what federal laws or constitutional rights she alleges
were violated, or whether this action is properly in federal court. See, e.g., Williams v. Smith, 781 F.2d 319, 323 (“[P]ersonal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”)
(citation and internal quotation marks omitted). Ultimately, plaintiff has not provided sufficient facts for this Court to assess
plaintiff's complaint, as plaintiff has given no context for her general statements about violations of the law by parties who are
not named in the complaint, nor explanations as to how her constitutional rights were violated by either these unnamed parties
or by the named defendants. See Compl.
The undersigned further recommends that the complaint be dismissed with prejudice. Although the district court generally is
to afford a pro se plaintiff at least one opportunity to amend prior to outright dismissal, Dolan v. Connolly, 794 F.3d 290, 295
(2d Cir. 2015), it is clear to the undersigned that any attempt by plaintiff to amend her complaint would be futile. See Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Plaintiff's complaint is clearly “a case[ ] in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988) (citations omitted). Plaintiff has submitted at least seven other actions in this Court, many of which were
submitted on the same day, and all of these complaints have either been dismissed for failure to comply with pleading standards
or a recommendation for dismissal is pending for review before the assigned District Judge. 6 Further, in matters where plaintiff
was given an opportunity to amend her complaint, those cases were eventually dismissed for failure to properly comply with the
Court's order. See Georges v. Duchene (DNH/DJS), 17-CV-86, Dkt. No. 9; Georges v. Schneiderman (BKS/DJS), 17-CV-524,
Dkt. No. 16. Even in light of the special solicitude to be accorded to pro se plaintiffs' complaints, “courts cannot read into
pro se submissions claims that are not consistent with the pro se litigant's allegations[.]” Giamattista v. Am. Airlines, Inc., 584
Fed.Appx. 23, 25 (2d Cir. 2010) (summary order).
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6 See Georges v. Rathner (DNH/DJS), 1:17-CV-1276 (filed Nov. 13, 2017); Georges v. Duchene (DNH/DJS), 1:17-CV-86
(dismissed for failure to comply with Court's Order) (filed Jan. 26, 2017); Georges v. Schneiderman (BKS/DJS), 1:17-
CV-524 (dismissed for failure to state a claim) (filed May 11, 2017); Georges v. Gov. Tower VA, 1:17-CV-1244 (TJM/
ATB) (filed Nov. 13, 2017); (recommendation pending for dismissal with prejudice for failure to state a claim and
frivolity); Georges v. Rathner (BKS/DJS) 1:17-CV-1245 (recommendation for dismissal with prejudice pending) (filed
Nov. 13, 2017); Georges v. Cuomo (TJM/DJS), 1:17-CV-1247 (recommendation for dismissal with prejudice pending)
(filed Nov. 13, 2017); Georges v. Rathner, 1:17-CV-1246 (DNH/CFH)(recommendation for dismissal with prejudice
pending)(filed Nov. 13, 2017).
Finally, as the undersigned is recommending dismissal of plaintiff's complaint, it is also recommended that her motion for
appointment of counsel be denied as moot. See Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d
Cir. 2011). 7
7 It is also noted that plaintiff has not provided evidence of any efforts she has taken in an attempt to obtain counsel on her
own from either the public or private sectors. Terminate Control Corp. v. Horowitz, 28 F.3d 1135 (2d Cir. 1994). She
has further failed to demonstrate that her claims are likely to be of substance—a consideration this Court must weigh
in assessing requests for appointment of counsel. Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d
62, 68 (2d Cir. 2011).
III. Anti-Filing Injunction Order
*4 As indicated herein, plaintiff has commenced at least seven actions in this Court in the past year, several of which were filed
in November 2017. See n.6, supra. All of plaintiff's cases have either been dismissed or are pending with a recommendation
for dismissal and all appear to involve similar unintelligible claims about a “network,” Levy Rathner, and unspecified and/or
crimes committed against herself and her family. In the cases where plaintiff was given an opportunity to amend, she did not
submit any responsive or intelligible filing that adequately addressed the Court's concerns.
“District courts possess the authority to issue injunctive sanctions under Rule 11.” Colida v. Nokia Inc., No. 07 CIV.8056 KMW
HBP, 2008 WL 4517188, at *13 (S.D.N.Y. May 6, 2008), report and recommendation adopted as modified, No. 07 CIV 8056
KMW HBP, 2008 WL 4449419 (S.D.N.Y. Sept. 29, 2008), aff'd, 347 Fed.Appx. 568 (Fed. Cir. 2009) (quoting In re Martin-
Trigona, 737 F.2d 1254, 1261-62 (2d Cir. 1984)). “Federal courts have ... the constitutional obligation to protect their jurisdiction
from conduct which impairs their ability to carry out Article III functions.” Martin-Trigona, 737 F. Supp. 2d at 1261. The Court
must consider the following factors in drtermining whether to issue an anti-filing injunction:
(1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or
duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an
objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4)
whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on
the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts
and other parties.
Safir v. U.S. Lines Inc., 792 F.2d 19, 24 (2d Cir. 1986). “Ultimately, the question the court must answer is whether a litigant
who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.” Id. at 24.
The first factor, plaintiff's history of litigation, weighs in favor of granting the anti-filing injunction. All of the lawsuits plaintiff
has commenced in this District appear to be reiterations of the same claims. Although the complaints in each case are very
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difficult to interpret, it can be gathered that in each complaint, plaintiff seeks review of issues related to a “network” that appears
to be a conspiracy to commit crimes against her and spy on her. However, in each case, the assigned Judge has determined
that plaintiff's complaint failed to meet the pleading requirements. See n.6, supra. Further, plaintiff has been unable to set forth
claims that meet basic pleading standards even where plaintiff has been given an opportunity to amend. See, e.g., Georges v.
Duchene (DNH/DJS), 1:17-CV-86; Georges v. Schneiderman (BKS/DJS), 1:17-CV-524. In addition, although not dispositive
of the issue, it is noteworthy that plaintiff has also attempted to commence at least one similar action in another district, and
that action was dismissed without prejudice as the complaint “fails to meet the minimal pleading requirements of Rule 8(a) of
the Federal Rules of Civil Procedure.” See Georges v. Doctor Dalmacy, 17-CV-00017 (D.D.C. filed Jan. 4, 2017).
As to the second factor, it cannot be said that plaintiff has a good faith motive in pursuing this litigation. Although plaintiff is
proceeding pro se, and it appears she experiences difficulty in complying with this Court's pleading standards, this Court has
repeatedly explained that her complaints do not supply sufficient coherent facts or claims for the Court to assess her claim, yet
she continues to file very similar complaints with the same defects. Safir, 792 F.2d at 24. Although plaintiff is not represented
by counsel, the third factor this Court is to consider, this factor does not weigh against granting an injunction, as it is unlikely
that even if represented, plaintiff would be able to state a claim. Safir, 792 F.2d at 24. As for the fourth factor, plaintiff has not
caused “needless expense to other parties,” as plaintiff's complaints have not been served on the defendants; however, plaintiff
has “posed an unnecessary burden on the courts and their personnel,” as she has filed multiple actions involving what appears to
be the same or similar claims, and has not been able to amend her complaint or properly comply with Court orders in those cases,
despite being provided with such opportunities. As to the final factor, it does not appear to the undersigned that lesser sanctions
would suffice, as plaintiff does not appear to understand, or perhaps have regard for, the Federal Rules of Civil Procedure,
the Local Rules of the Northern District of New York, or the basic facts necessary to provide a sufficient background of her
claims before this Court. Id. The undersigned is of the belief that plaintiff will continue to file frivolous lawsuits about the same
matters. Accordingly, it is recommended that an anti-filing injunction be issued against this plaintiff requiring plaintiff to obtain
permission of the Court prior to filing any actions in this District.
*5 Although anti-filing injunctions are to be narrowly tailored, because plaintiff repeatedly names a variety of defendants,
providing little or any information about how defendants are personally involved in the alleged wrongdoings, it is unlikely
that attempting to tailor an anti-filing injunction that would be limited to certain claims or defendants would be of utility.
Accordingly, it is recommended that the anti-filing injunction enjoin plaintiff from commencing any new action in this district
without first obtaining leave of the Court. Finally, as a litigant must be given an opportunity to be heard before an anti-filing
injunction is entered against her, it is also recommended that the Court provide such opportunity to plaintiff. See Moates v
Barkley, 147 F.3d 207, 208 (1998).
IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) be GRANTED for purposes of filing only; and it is
RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be dismissed sua sponte with prejudice, and it is
RECOMMENDED, pursuant to 28 U.S.C. § 1651(a), this Court issue an Anti-Filing Injunction, ordering that plaintiff be
enjoined from further filings in the Northern District of New York without leave of Court; and it is
ORDERED, that plaintiff's Motion for Appointment of Counsel (Dkt. No. 3) be DENIED as moot; and it is
ORDERED, that the Clerk of the Court serve this Report-Recommendation and Order on plaintiff in accordance with the Local
Rules.
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IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), parties may lodge written objections to the foregoing report. Such objections shall be filed
with the Clerk of the Court “within fourteen (14) days after being served with a copy of the ... recommendation.” N.Y.N.D. L.R.
72.1(c) (citing 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892
F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).
All Citations
Not Reported in Fed. Supp., 2018 WL 816846
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United States District Court, N.D. New York.
Agnes GEORGES, Plaintiff,
v.
Joel HATSER, Advisor Lawyer; Joseph Ciavanitti, U.S. Attorney Lawyer;
and Kurt Bratten Brian, Bar Association 518-445-7691, Defendants.
1:17-CV-1243 (GTS/CFH)
|
Signed 02/09/2018
Attorneys and Law Firms
AGNES GEORGES, 12 St. Joseph's Terrace, Albany, New York 12210, Plaintiff, Pro Se.
DECISION and ORDER OF DISMISSAL and ORDER TO SHOW CAUSE
HON. GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se civil rights action filed by Agnes Georges (“ Plaintiff”) against the three
above-captioned individuals (“Defendants”), is United States Magistrate Judge Christian F. Hummel's Report-Recommendation
recommending that Plaintiff's Complaint be sua sponte dismissed with prejudice for failure to state a claim upon which relief
can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B), and that the Court issue a Pre-Filing Order permanently enjoining Plaintiff
from making any future filings in this District pro se without first obtaining permission from the Chief District Judge. (Dkt.
No. 5.) Plaintiff has not filed an Objection to the Report-Recommendation, and the deadline in which to do so has expired.
(See generally Docket Sheet.)
Based upon a careful review of this matter, the Court can find no clear error 1 in the Report-Recommendation: Magistrate Judge
Hummel employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result,
the Court accepts and adopts the Report-Recommendation for the reasons stated therein, Plaintiff's Complaint is sua sponte
dismissed with prejudice, and Plaintiff is directed to show cause why she should not be permanently enjoined from making any
future filings in this District pro se without obtaining prior leave of the Chief District Judge or his or her designee.
1 When, as here, no objection is made to a report-recommendation, the Court subjects that report-recommendation to only
a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear
error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” Id.: see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1. (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection
is made, so long as those sections are not facially erroneous.”) (internal quotation marks and citations omitted).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 5) is ACCEPTED and ADOPTED in its
entirety; and it is further
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ORDERED that Plaintiff's Complaint (Dkt. No. 1) is sua sponte DISMISSED with prejudice for failure to state a claim upon
which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that Plaintiff shall, within FOURTEEN (14) DAYS of the date of this Decision and Order, SHOW CAUSE in
writing why she should not be permanently ENJOINED from filing any future pleadings or documents of any kind (including
motions) in this District without first seeking and obtaining permission of the Chief District Judge or his or her designee (except
pleadings or documents in a case that is open at the time of the issuance of the Court's Pre-Filing Order until that case is closed).
The Clerk of the Court is directed to open a new pre-filing case number 9:18-pf-3 and file a copy of this Decision and Order in
that pre-filing case. Plaintiff's response to this Order to Show Cause shall be filed in case number 9:18-pf-3; and it is further
*2 ORDERED that, if Plaintiff does not fully comply with this Decision and Order, the Court will issue a subsequent order,
without further explanation, permanently so enjoining Plaintiff; and it is further
ORDERED that the Clerk shall provide a copy of this Order to Show Cause to Plaintiff by certified mail.
All Citations
Not Reported in Fed. Supp., 2018 WL 813502
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2015 WL 3637431
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Matthew R. EHLERS, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY; David B. Buckley,
Director; Michael E. Horowitz, Inspector General, Defendants.
No. 6:15–cv–387 (MAD/ATB).
|
Signed June 10, 2015.
Attorneys and Law Firms
Matthew R. Ehlers, Amsterdam, NY, pro se.
MEMORANDUM–DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
I. INTRODUCTION
*1 Plaintiff commenced this civil rights action asserting claims against the Central Intelligence Agency (“CIA”), the director
thereof, and the Inspector General (“IG”) of the Department of Justice (“DOJ”). See Dkt. No. 1. In an April 6, 2015, Order and
Report–Recommendation, Magistrate Judge Baxter conducted an initial review of the complaint and granted Plaintiff's motion
for leave to proceed in forma pauperis (“IFP”) for filing purposes only, recommended that the complaint be dismissed in its
entirety with prejudice, and denied Plaintiff's motion to appoint counsel. See Dkt. No. 5 at 11.
Currently before the Court is Magistrate Judge Baxter's Order and Report–Recommendation, Plaintiff's objections thereto, and
Plaintiff's amended complaint, which was filed after the issuance of the Order and Report–Recommendation.
II. BACKGROUND
Plaintiff's complaint is very short, containing limited facts, but brings this action against the CIA and DOJ under 18 U.S.C.
§§ 241–242 & 245 for having failed to investigate alleged reports of harassment that he and his family suffered due to their
“whistleblowing” activities. Id. at 3, 8. Plaintiff appeared to be requesting injunctive or mandamus relief. Id. at 6. The Magistrate
Judge found Plaintiff failed to plausibly allege that Defendants denied him due process by failing to conduct an investigation
or prosecution and that Plaintiff has no right, constitutional or otherwise, to an investigation or prosecution. Id. at 8 (citing
Bernstein v. New York, 591 F.Supp.2d 448, 460 (S.D.N.Y.2008)). Magistrate Judge Baxter concluded that Plaintiff's complaint
amounts to conclusory allegations which are insufficient to state a constitutional claim. Id. at 9 (citing Barr v. Adrams, 810 F.2d
358, 363 (2d Cir.1987)). The Magistrate Judge then held that any attempt by Plaintiff to amend his complaint would be futile,
and he would still be unable to state a federal claim. Id. at 10.
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Currently before the Court are Magistrate Judge Baxter's Order and Report–Recommendation, and Plaintiff's objections thereto.
Additionally pending before the Court is Plaintiff's amended complaint, which was filed after the issuance of the Order and
Report–Recommendation.
III. DISCUSSION
A. Initial review
Section 1915(e) (2)(B) directs that, when a plaintiff seeks to proceed in forma pauperis, “(2) ... the court shall dismiss the case
at any time if the court determines that—... (B) the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)
(2)(B). 1 Thus, although The Court has the duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605,
606 (2d Cir.1990) (per curiam), and should exercise “extreme caution ... in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond, ...”
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983) (internal citations omitted), the court also has a responsibility to determine
that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. 2
1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
2 “Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915e is appropriate to prevent abuses of the process of the
court,” Nelson v. Spitzer, No. 9:07–CV–1241, 2008 WL 268215, *1 n.3 (N.D .N.Y. Jan. 29, 2008) (citation omitted),
as well as “to discourage the filing of [baseless lawsuits], and [the] waste of judicial ... resources[.]” Neitzke, 490 U.S.
at 327.
*2 When reviewing a complaint, the court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules
of Civil Procedure provides that a pleading that sets forth a claim for relief shall contain “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, *1 (S.D.N.Y.
Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. Califano, 75
F.R.D. 497, 498 (D.D.C.1977))) (other citation 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,
556 U.S. at 678 (citation omitted). Although 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). Thus, “where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the pleader is entitled to relief.’
“ Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
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) (2006). When a party, however, files “[g]eneral or conclusory objections or objections which merely
recite the same arguments [that he presented] to the magistrate judge,” the court reviews those recommendations for clear error.
O'Diah v. Mawhir, No. 9:08–CV–322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After
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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) (2006).
A litigant's failure to file objections to a magistrate judge's report-recommendation, even when that litigant is proceeding pro
se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003) (holding that, “[a]s a rule,
a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the
point” (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the
failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority.
See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir.1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989)
(holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless
the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and
Rules 72, 6(a) and former 6(e) of the Federal Rules of Civil Procedure).
*3 As Magistrate Judge Baxter correctly determined, Plaintiff's complaint does not state a valid claim for which relief can
be granted and lacks substance. As Magistrate Judge Baxter discussed, Plaintiff's complaint is not of substance, but rather
conclusory statements and “threadbare recitals of the elements of a cause of action.” See Twombly, 550 U.S. at 555.
Plaintiff was not denied due process under 18 U.S.C. § § 241–242 & 245 or when the agencies contacted failed to conduct
an investigation. “ ‘There is ... no constitutional right to an investigation by government officials.’ Thus, there is no
constitutional violation where the government refuses to investigate a crime....” Bernstein v. New York, 591 F.Supp.2d 448,
460 (S.D.N.Y.2008); Lewis v. Gallivan, 315 F.Supp.2d 313, 317 (W.D.N.Y.2004). Additionally, it is well established that there
is no private right of action under 18 U.S.C § § 241–242 & 245. See, e.g., Dugar v. Coughlin, 613 F.Supp. 849, 852 n.1
(S.D.N.Y.1985); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir.N.Y.1994); Powers v. Karen, 768 F.Supp.
46, 51 (E .D.N.Y.1991); Sauls v. Bristol–Myers Co., 462 F.Supp. 887, 889 (S.D.N.Y.1978). The Magistrate Judge correctly
determined that Plaintiff has no cause of action and properly dismissed the claim because there is no constitutional right to an
investigation or a private right of action under 18 U.S.C. 241, 242 & 245.
Furthermore, the doctrine of sovereign immunity bars Plaintiff's suit for damages against the CIA “[b]ecause an action against a
federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred
under the doctrine of sovereign immunity.” Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.N.Y.1994).
Having reviewed the Report, Recommendation, and Order and Plaintiff's objections thereto, the Court finds that Magistrate
Judge Baxter correctly determined that Plaintiff's claims should be dismissed.
B. Plaintiff's Amended Complaint
In his amended complaint Plaintiff states that there has been “ongoing choreographed criminal attacks” directed at him and his
family, which were arranged by “corrupt Federal agents from the CIA .” See Dkt. No. 6 at 3. The amended complaint states
these attacks include: “efforts to harass, defame, discredit, sabotage, stalk (including gang stalking), setup, and block many
inherent rights.” Id. It also states there were efforts “to create general chaos,” and “to make us feel bad.” Id. Plaintiff includes a
list of incidents and events in his amended complaint that reference occurrences from 2002 to 2011. In this list Plaintiff makes
claims including but not limited to: “odd events,” “bogus tickets,” “chemicals or contaminnets [sic] being put in to [his] food,”
“sabotage [to his] own consulting/financial services business,” “politics and case fixing,” “electronic directed energy weapon
(dew) attacks,” “corrupt gravy train,” and “civil rights blackout.” Id. at 4–10. However, all of the events, occurrences, and
claims lack substance and are mere conclusory statements.
*4 In his amended complaint, Plaintiff clarifies he is seeking monetary damages, injunctive monetary relief, punitive damages,
and “an immediate and thorough criminal investigation and prosecutions.” Id. at 10. Plaintiff states that he seeks mandamus
relief under 28 U.S.C. § 1361, and restates he seeks relief under 18 U.S.C. §§ 241–242 & 245. Id. at 11.
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Having reviewed the amended complaint, the Court finds that Plaintiff has failed to plausibly allege that he is entitled to any
of the relief he seeks. As discussed above, Plaintiff's claims must be dismissed because they are entirely conclusory, lack an
arguable basis in law or fact, and fail to state a claim on which relief may be granted. See Ashcroft, 556 U.S. at 678; Neitzke,
490 U.S. at 325; 28 U.S.C. § 1915(e)(2)(B)(ii). Additionally, as discussed above, there is no private right of action under 18
U.S.C. §§ 241–242 & 245. See, e.g., Dugar, 613 F.Supp. at 852 n.1. Again, there was also no constitutional violation because
there is no right to an investigation. See, e.g., Bernstein, 591 F.Supp. at 460.
Based on the foregoing, the Court finds that Plaintiff's amended complaint fails to set forth any non-frivolous causes of action.
Since permitting additional amendment would be futile, Plaintiff's amended complaint is dismissed with prejudice.
In view of the frivolous nature of Plaintiff's claims, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IV. CONCLUSION
After carefully considering Magistrate Judge Baxter's Order and Report–Recommendation, Plaintiff's objections thereto, and
the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Baxter's April 6, 2015 Order and Report–Recommendation is ADOPTED; and the Court
further
ORDERS that Plaintiff's complaint and amended complaint are DISMISSED with prejudice; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve Plaintiff with a copy of this Memorandum–Decision and Order.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
The Clerk has sent to the Court a civil rights complaint filed by pro se plaintiff Matthew R. Ehlers. (Dkt. No. 1) Plaintiff has
also filed an application to proceed in forma pauperis (“IFP”) and a motion for appointment of counsel. (Dkt.Nos.2, 3). For
the following reasons, this court will grant plaintiff's IFP application, but will recommend dismissal pursuant to 28 U.S.C. §
1915(e)(2)(B)(i)-(iii).
I. IFP Application
*5 A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). Although
plaintiff's application is technically incomplete, this court will assume for purposes of this order that plaintiff meets the financial
criteria to proceed IFP. 1
1 In his application, plaintiff states that he is currently unemployed. He then states that in the past twelve months, he has
received income from “business, profession or other self employment,” but does not state the source of the money, the
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amount received, or what he expects to receive. (Dkt. No. 2 at 1). He also states that his children “help” him by giving
him $25.00 to $30.00 per week, but on the next page, he states that he supports his children by contributing $50.00 to
$192.00 per week. (Dkt. No. 2 at 1–2). These omissions and inconsistencies are not explained, but as stated above, the
court will find plaintiff financially eligible for the limited purpose of this Order and Report–Recommendation.
In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the
sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss
the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)
(B) (i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court
process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802,
804 (8th Cir.1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in
ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to
respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (finding that a district court may dismiss a
frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a
claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint
under the above standards.
II. Complaint
The complaint is very short and contains limited facts. (Complaint “Compl.”) (Dkt. No. 1). It is divided into three “causes of
action.” (Compl. at 1–2). Plaintiff names the Central Intelligence Agency (“CIA”); CIA Director, David B. Buckley; 2 and
Inspector General (“IG”) Michael E. Horowitz. 3 Plaintiff alleges that on May 6, 2011, he sent a letter to defendant Buckley
outlining facts and events which he alleges represent
2 David Buckley is the CIA's Inspector General, not the Director of the CIA. The current Director of the CIA is John
Brennan. https:// www.cia.gov/news-information/pressreleases-statements/index. Plaintiff's error does not affect this
court's decision.
3 Michael E. Horowitz is the IG of the Department of Justice (“DOJ”). Plaintiff does not specify defendant Horowitz's
agency in the complaint.
such serious and aggregious [sic] criminal activity and allegations, that it should have prompted an immediate appropriate
response and internal investigation into the associated misconduct, criminal politics, corporate crime and conspiracy against
rights (Title 18 section 241 and 242, 245).
*6 (Compl. at 1). Plaintiff claims that he never received a response from defendant Buckley, which plaintiff believes is a
violation of due process. (Id.) Plaintiff claims that the failure of defendant Buckley to respond “furthered the conspiracy and
attacks against [his] family and [him], [his] career, [their] rights as well as general peace and well being.” (Compl. at 2).
Plaintiff's second cause of action states that he also contacted the Office of the Inspector General (“OIG”) with the same
information as reported to the CIA. (Id.) Plaintiff states that he filed an “official complaint,” but he received an “extremely
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bizarre” response which “completely ignored the facts and events set forth and declared the matter closed without any due
process or investigation whatsoever.” (Id.)
Plaintiff's third cause of action states that he again contacted OIG on July 17, 2012, August 3, 2012 to request “and demand” an
investigation into the “obvious heinous crimes,” corruption, and “criminal politics.” (Id.) Plaintiff also “voiced dismay” over
the lack of proper response to his correspondence. Plaintiff states that he received a “similarly neglectful and bizarre response”
from OIG on August 10, 2012. On September 4, 2012, he contacted OIG “one final time” to inform “them” of his intent to
file a federal action. Plaintiff claims that there is obvious coercion, manipulation, blackmailing, bribery, case-fixing/tampering,
corporate bartering, and “cronyism” at several levels. Plaintiff is not sure who is responsible for the handling or mishandling
of the correspondence that he and his family have sent over the years, but he is filing this federal action, “having exhausted
all other remedies.” (Compl. at 2).
Plaintiff requests an “immediate and thorough criminal investigation into the crimes, individuals, entities and allegations set
forth in the attached correspondence 4 as well as the associated misconduct, criminal politics and corruption.” (Id.) Plaintiff
also appears to be asking for monetary relief, due to “lack of due process and lack of enforcement.” (Id.)
4 There is no correspondence attached to the complaint. There are many emails, attached to plaintiff's motion for
appointment of counsel. (Dkt. No. 3). The emails appear to be excerpts of correspondence that plaintiff sent to various
attorneys in an attempt to encourage counsel to take his case. In one of the emails there is a chronology of events that
plaintiff sent to counsel which may further explain the conduct of which plaintiff complains. (Dkt. No. 3 at CM/ECF
pp.24–29). I will discuss the facts stated in plaintiff's email below as appropriate to clarify plaintiff's claims.
III. Venue
A. Legal Standards
Proper venue in civil actions in which the defendants are officers or employees of the United States is as follows:
(1) In general.—A civil action in which a defendant is an officer or employee of the United States or
any agency thereof acting in his official capacity or under color of legal authority, or an agency of the
United States, or the United States, may, as otherwise provided by law, be brought in any judicial district
in which (A) a defendant in the action resides, (B) a substantial part of property that is the subject of the
action is situated, or (C) the plaintiff resides if no real property is involved in the action.
28 U.S.C. § 1391(e)(1). However, venue in actions bringing claims against defendants in their “individual capacities” is
governed by 28 U.S.C. § 1391(b) which provides that
*7 A civil action may be brought in—
(1) a judicial district where any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, ... or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which
any defendant is subject to the court's personal jurisdiction with respect to such action.
See Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for the Western District of Texas, ––– U.S. ––––. 134 S.Ct. 568, 577
(2013).
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B. Application
In this case, plaintiff has named CIA IG, David B. Buckley and DOJ IG, Michael E. Horowitz. Plaintiff's first request appears
to be in the nature of injunctive or mandamus relief. He states that he is requesting “an immediate and thorough criminal
investigation.” (Compl. at 2). To the extent that he names the IGs in their official capacities for equitable relief, venue is proper
in the Northern District of New York based upon 28 U.S.C. § 1391(e)(1)(C) because plaintiff resides in this district, and no
real property is alleged to be involved in the action.
To the extent that plaintiff seeks monetary relief from either director individually 5 for constitutional 6 violations, the only basis
upon which plaintiff could bring the action is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971) which allows citizens to file damage claims for constitutional violations committed by federal agents or employees,
acting under color of federal law. See Arar v. Ashcroft, 585 F.3d 559, 571–72 (2d Cir.2009) (discussing history of Bivens actions).
5 To the extent that plaintiff seeks to name the CIA as a defendant, sovereign immunity would prevent a suit for damages
directly against the agency. As a federal agency, the CIA is protected against suit by the sovereign immunity afforded to
the United States. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994). Absent an unequivocal
waiver of that sovereign immunity in statutory text, this court would lack subject matter jurisdiction. Adeleke v. United
States, 355 F.3d 144, 150 (2d Cir.2004); Marakova v. United States, 201 F.3d 110, 113 (2d Cir.2000). The United States
has not waived its sovereign immunity with respect to constitutional claims seeking money damages that are brought
directly against the United States or an agency thereof. Robinson, 21 F.3d at 510.
6 Plaintiff claims he was denied due process as a result of the defendants' failure to investigate his allegations. (Compl.
at 1–2).
Under section 1391(b), a claim against the defendants “individually” would normally be brought in Washington, D.C., where the
alleged unconstitutional acts took place, 7 or where the defendants reside, which is unlikely the Northern District of New York.
However, in a case involving multiple claims, dismissal of an improperly venued claim is not warranted if “ ‘it is factually related
to a properly venued claim and the claims could be considered one cause of action with two grounds of relief.’ “ Mikhaylov v.
United States, 29 F.Supp.2d 260, 273–74 (E.D.N.Y.2014) (quoting United States Envtl. Prot. Agency ex rel. McKeown v. Port
Auth. of N.Y. & N.J., 162 F.Supp.2d 173, 183 (S.D.N.Y.2001), aff'd sub nom. McKeown v. Del. Bridge Auth., 23 F. App'x 81
(2d Cir.2001)).
7 The refusal to investigate plaintiff's claims presumably occurred in defendants' offices, neither of which are in the
Northern District of New York.
In this case, the court will consider plaintiff's official capacity and individual capacity claims sufficiently related so that venue
is proper in the Northern District of New York. Notwithstanding proper venue, this case must be dismissed.
IV. Right to Investigation
A. Legal Standards
Plaintiff has no constitutional right to an investigation of any sort by government officials. See Bernstein v. New York, 591
F.Supp.2d 448, 460 (S.D.N.Y.2008); Lewis v. Gallivan, 315 F.Supp.2d 313, 317 (W.D.N.Y.2004) (citing cases). In order for a
constitutional violation to have occurred, the investigation itself must have resulted in the deprivation of a constitutional right.
Faison v. Hash, 03–CV–6475P, 2004 WL 944523, at *6 (W.D.N.Y. April 23, 2004) (citation omitted). It is also well-settled that
there is no private right of action under federal criminal statutes such as 18 U.S.C. §§ 241 or 242. Robinson v. Overseas Mil.
Sales Corp., 21 F.3d 502, 511 (2d Cir.1994); Marshall v. Webster Bank, N.A., 3:10–CV–908, 2011 WL 219693, *8 (D.Conn.
Jan. 21, 2011) (citing cases); Vasile v. Dean Witter Reynolds, Inc., 20 F.Supp.2d 465, 478 (E.D.N.Y.1998), aff'd, 205 F.3d 1327
(2d Cir.2000) (citations omitted).
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B. Application
*8 Plaintiff is suing defendants because the CIA and the DOJ failed to investigate or prosecute after plaintiff allegedly sent
them information, reporting the harassment that he and his family have suffered due to their “whistleblowing” activities. Because
plaintiff has no right, constitutional or otherwise, to an investigation or prosecution, the defendants did not deny him due process
by failing to conduct either one. 8 The court would also point out that the complaint itself does not “detail” any of the specific
facts of the alleged harassment. 9 He simply states that in 2011 and 2012, defendants failed to investigate his allegations.
Plaintiff makes only general allegations of the corruption he wished to have investigated. He alleges “attacks against his family,”
conspiracies, case-fixing, bribery, corporate bartering, and the like. (Compl. at 2). Conslusory allegations are insufficient to
state a constitutional claim. 10 Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987).
8 In his motion for appointment of counsel, plaintiff also mentions the words “equal protection.” (Dkt. No. 3 at 29). The
Equal Protection Clause of the Fourteenth Amendment requires that the government treat all similarly situated people
alike. Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir.1997). Generally, the equal protection clause has been “concerned with
governmental ‘classifications that affect some groups of citizens differently than others.’ “ Engquist v. Or. Dep't of Agric.,
553 U.S. 591, 601 (2008). In his complaint, there is absolutely no indication that anyone was treated differently than
plaintiff by these defendants. There is no indication that another similarly situated individual obtained an investigation
by defendants under similar circumstances. Thus, to the extent that plaintiff's motion for appointment of counsel could
be interpreted as in some way raising such an equal protection claim in plaintiff's complaint, the court would still
recommend dismissal.
9 The court is merely noting these facts. This recommendation is based only upon the fact that plaintiff is not entitled to
an investigation of any sort, not that he has not detailed his claims of harassment.
10 The court does note that a review of plaintiff's motion for appointment of counsel (addressed below) does contain a
“timeline of events/incidents” that plaintiff sent to one attorney in an effort to obtain counsel. (Dkt. No. 3 at CM/ECF
pp.24–29). The incidents described by plaintiff begin in 2002 and span occurrences in various states through 2011. The
court will not recite all the facts as stated by plaintiff in his description of the relevant facts, but would only note some
of the statements. In 2002, police in New Jersey engaged in “odd behavior.” (Dkt. No. 3 at 24). In 2003, references were
made to plaintiff that the “mob” was after him, including direct statements from coworkers at “Meow–Mix Company”
bragging about their corrupt law enforcement friendships. (Id. at 25). In 2004, while working at the Hartz Mountain
Corporation, plaintiff's supervisor bragged of CIA connections, how he can “set” plaintiff up, and bragged about “having
hacked” plaintiff's email. (Id.) There are also allegations of occurrences between 2003 and 2008. In 2008, plaintiff claims
that he was offered a job in Albany, which turned out to be a “scam,” and the company closed its Albany office within
two weeks after plaintiff moved there. (Id. at 26). Plaintiff alleged that there was “reason to believe” that this was done
to plaintiff “intentionally.” (Id.) Plaintiff mentions a hit-and-run in 2009 and a DWI in 2010 (although plaintiff concedes
that he had too much to drink, but is convinced that “they seemed to be ready for it.” (Id. at 27). Notwithstanding all
these incidents, plaintiff never specifies who may be responsible or to what “criminal group” he is referring. (Id. at 28).
Even including all the facts as stated in plaintiff's motion for appointment of counsel, his rights would not have been
violated when the CIA or any of the three defendants refused to investigate his “case” in 2011 and 2012.
Thus, this court must recommend dismissal of plaintiff's complaint for failure to state a claim because plaintiff is not entitled
to, nor can he “demand” an investigation.
V. Opportunity to Amend
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.,
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987 F.2d 129, 131 (2d Cir.1993). In this case, the court finds that any attempt by the plaintiff to amend this complaint would
be futile, and he would still be unable to state a federal claim.
VI. Appointment of Counsel
A. Legal Standards
There is no bright-line test for determining whether counsel should be appointed on behalf of an indigent party. Hendricks v.
Coughlin, 114 F.3d 390, 392–93 (2d Cir.1997). A number of factors must be carefully considered by the court in ruling upon the
motion. The court must first assess whether the indigent's claims seem likely to be of substance. If so, the court then considers:
[t]he 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 that 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
(2d Cir.1986)). Each case must be decided on its own facts, and the court may consider any or all of the above factors in its
determination. Velasquez v. O'Keefe, 899 F.Supp. 972, 974 (N.D .N.Y.1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61).
B. Application
Plaintiff has contacted multiple attorneys who have refused to take his case. (Dkt. No. 3). This court finds that plaintiff's
complaint does not state a claim, and that he will be unable to amend to state a claim because he simply has no right to the relief
that he requests. Therefore, the complaint lacks substance, and the plaintiff cannot meet the first requirement for appointment of
counsel. The court need not proceed with the rest of the above analysis. Plaintiff's motion for appointment of counsel is denied.
*9 WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's application to proceed IFP (Dkt. No. 2) is GRANTED FOR PURPOSES OF FILING ONLY,
and it is
RECOMMENDED, that this action be DISMISSED IN ITS ENTIRETY WITH PREJUDICE pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii)-(iii) for failure to state a claim, and it is
ORDERED, that plaintiff's motion for appointment of counsel (Dkt. No. 3) is DENIED.
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. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(e), 72.
Dated: April 6, 2015.
All Citations
Not Reported in F.Supp.3d, 2015 WL 3637431
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2024 WL 248586
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Steven J. HANYON, Plaintiff,
v.
EXPRESS AUTO CREDIT CORP.; Angelo Pasquale; and Hannah Doolittle, Defendants.
3:23-CV-1640 (MAD/ML)
|
Signed January 22, 2024
Attorneys and Law Firms
STEVEN J. HANYON, Plaintiff, Pro Se, 22 Weber Road, Port Crane, New York 13833.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
I. BACKGROUND
A. Procedural History
*1 Plaintiff Steven J. Hanyon (“Plaintiff”) commenced this action pro se on December 27, 2023, against Defendants Express
Auto Credit Corp., Angelo Pasquale, and Hannah Doolittle (collectively “Defendants”). (Dkt. No. 1.) Plaintiff did not pay the
filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
On January 3, 2024, United States District Judge Mae A. D'Agostino issued a text order directing Plaintiff to comply with the
Federal Rules. (Dkt. No. 5.) More specifically, Judge D'Agostino noted that Plaintiff failed to provide the Court with a short and
plain statement of his claim. (Id.) Judge D'Agostino directed Plaintiff to file a complaint within fourteen days of her order. (Id.)
On January 8, 2024, Plaintiff filed a letter to Judge D'Agostino enclosing the “Complaints that you asked for.” (Dkt. No. 8.)
On January 10, 2024, Plaintiff filed another letter that refers to itself as motion for summary judgment but appears to include
additional allegations and thus was construed for purposes of this initial review as a supplemental pleading. (Dkt. No. 10.)
B. Complaint(s)
Construing Plaintiff's letters as liberally 1 as possible, he appears to allege that Defendants violated his rights. (See generally
Dkt. Nos. 8, 10.)
1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169,
173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
More specifically, Plaintiff's letter filed with the Court on January 8, 2024, states that it is enclosing “Complaints” that the
Court asked for. (Dkt. No. 8 at 1.) Instead, the filing appears to include a series of documents related to Plaintiff's New York
State Division of Human Rights complaints that were filed against non-parties the New York State Police and New York State
Department of Labor. (Dkt. No. 8 at 4-10.) In addition, Plaintiff's letter includes two documents each titled “Complaint”: (1) one
with caption against non-party Universal Instruments Corporation, and (2) one with a caption against Defendants Express Auto
Credit Corp and Pasquale. (Dkt. No. 8 at 2-3.) Plaintiff appears to allege that Defendant Express Auto Credit Corp remotely
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shut off a device in a 2013 Chevy Cruze, which resulted in Plaintiff being “blocked from work” and the termination of an
employment contract with non-party Universal Instruments. (Dkt. No. 8 at 3.)
The document that refers to itself as a motion for summary judgment discusses discrimination he believes he has endured
“since [he] was a child d[ue] to New York [S]tate [p]olicies” and a learning disability. (Dkt. No. 10 at 1.) Plaintiff outlines his
educational experiences and history with an ex-wife. (Id.)
The motion for summary judgment alleges that at some point in time Plaintiff began working for non-party Universal. (Id. at
2.) Plaintiff alleges that his 2011 Chevy HRR was not running well and eventually “died on an exit to Universal.” (Id.) Plaintiff
alleges that he “had to find a new car so [he] went to [Defendant] Express Auto Credit Corp” and purchased a 2013 Chevy Cruze.
(Id.) Plaintiff alleges that “they put a GPS remote shut-off switch in the 2013 Chevy Cruze and shut it off in front of Universal's
mail box when [he] was retrieving their mail.” (Id.) Plaintiff alleges that he returned the vehicle to Defendant Express Auto
Credit Corp but was unable to obtain another vehicle because of his credit score. (Id.) Plaintiff alleges that he was “really upset”
at Defendant Express Auto Credit Corp “so [he] sent them a[n] email threatening them.” (Id.) Plaintiff alleges that “the State”
confiscated his firearm and he granted “them p[er]mission to keep it for one year but [he] also let them know [he is] related to
the founding fathers and [he] find[s] it to be an insult to take such a thing away from [him].” (Dkt. No. 10 at 2-3.)
*2 The motion for summary judgment asserts that (1) Plaintiff is in a lot of debt, (2) has been waiting for unemployment
benefits but has not received any, (3) filed the “NYS Poor Person affidavit and also A summary judgment in NYS Supreme
Court” which have not been ruled on yet, (4) a judge in the Town of Union imposed a fine that Plaintiff cannot afford, and (5)
Plaintiff pleaded guilty to the violation of disorderly conduct upon the advice of the public defender. (Dkt. No. 10 at 3.) The
motion for summary judgment asserts that Plaintiff is “so tired of being lied to and abused by the public that serves New York
and being left behind by my dream company Universal Instruments.” (Id.)
Plaintiff does not appear to assert any causes of action and does not appear to seek any relief. (Dkt. No. 10 at 3 [“I Steven
Hanyon write you such a Motion.”].)
Plaintiff seeks leave to proceed IFP. (Dkt. No. 2.)
II. PLAINTIFF'S APPLICATION TO PROCEED IFP
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be
paid. 28 U.S.C. § 1914(a). A court is authorized, however, to grant IFP status if it determines that the plaintiff is unable to
pay the required fee. 28 U.S.C. § 1915(a)(1). 2 Pursuant to 28 U.S.C. § 1915, where a plaintiff seeks leave to proceed IFP,
the court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying the
required filing fee. 28 U.S.C. § 1915(a)(1).
2 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates.
See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who
submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that
section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes
v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); see also Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1
(S.D.N.Y. 2002).
The decision of whether to grant an application to proceed IFP rests within the sound discretion of the court. Anderson v.
Coughlin, 700 F.2d 37, 42 (2d Cir. 1983). The Court must be satisfied “that the person is unable to pay such fees or give security
therefor” prior to granting IFP status. 28 U.S.C. § 1915(a)(1). To make this threshold showing, a plaintiff must demonstrate “that
paying such fees would constitute a serious hardship on the plaintiff, not that such payment would render plaintiff destitute.”
Fiebelkorn v. United States, 77 Fed. Cl. 59, 62 (Fed. Cl. 2007) (citing Adkins v. E.l. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948)); see also Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (“Section 1915[a] does not require a
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litigant to demonstrate absolute destitution[.]”); accord, Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). As the
Second Circuit has noted, “no party must be made to choose between abandoning a potential meritorious claim or foregoing
the necessities of life.” Potnick, 701 F.2d at 244 (citing Adkins, 335 U.S. at 339).
Here, Plaintiff's submission is incomplete. For example, Plaintiff fails to answer questions 2 and 3 outlining any employment
and wages or other income he has received in the last twelve months. (Dkt. No. 2 at ¶¶ 2-3.) In addition, Plaintiff fails to answer
question 4, which asks him to identify any money that he has in cash or in a checking or savings account. (Dkt. No. 2 at ¶ 4.)
In this instance, due to Plaintiff's incomplete IFP application, I am unable to conclude that he possesses insufficient funds to
pay the $405.00 filing fee to commence an action without “foregoing the necessities of life.” Potnick, 701 F.2d at 244 (citing
Adkins, 335 U.S. 339). Accordingly, I deny Plaintiff's motion to proceed in this case IFP. (Dkt. No. 2.) To the extent that Plaintiff
may wish to renew his request to proceed IFP, and given the Court's unanswered questions about his financial situation, any
request to proceed without the prepayment of fees must include a fully completed long form in forma pauperis application.
III. RELEVANT LEGAL STANDARDS GOVERNING INITIAL REVIEW OF A COMPLAINT
*3 Ordinarily, the finding that Plaintiff does not qualify for IFP status would end the Court's discussion, and Plaintiff, in light
of his pro se status, would likely be afforded an opportunity to either prepay the full filing fee, or submit a new, completed,
and certified application for IFP. Because, however, as is discussed more completely below, I find that Plaintiff's Complaint is
frivolous and fails to state a claim upon which relief may be granted, 28 U.S.C. § 1915 requires that the court dismiss the action
“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid[.]” 28 U.S.C. § 1915(e).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court
process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802,
804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court
“may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v.
Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.)
(finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte
because those theories were so lacking in arguable merit as to be frivolous).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that
he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief ... requires the ...
court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to
relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint ... the court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance
v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and
holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte
dismissal of a pro se complaint before the adverse party has been served and [the] parties ... have had an opportunity to respond.”
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
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IV. ANALYSIS
*4 In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's filings with this principle in mind, I recommend
that all causes of action be dismissed for three reasons.
First, Rule 8 of the Fed. R. Civ. P. requires a “short and plain statement” of a claim, showing that “the pleader is entitled to
relief.” Whitfield v. Johnson, 763 F. App'x 106, 107 (2d Cir. 2019) (quoting Fed. R. Civ. P. 8(a)). Each statement must be “simple,
concise, and direct,’ and must give ‘fair notice of the claims asserted.” Whitfield, 763 F. App'x at 107 (quoting Simmons v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). A pleading must also contain “a demand for the relief sought[.]” Id. “A complaint may
be dismissed under Rule 8 if it is ‘so confused, ambiguous, or otherwise unintelligible that its true substance, if any, is well
disguised.’ ” Id. Moreover, Rule 10 of the Fed. R. Civ. P. provides that “[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances[.]” Fed. R. Civ. P. 10(b). Rule 10’s purpose is to
“provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins, 22-
CV-1248, 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (Stewart, M.J.) (citation omitted), report and recommendation
adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023) (D'Agostino, J.). A complaint that does not comply with these Rules
“presents far too heavy a burden in terms of defendants’ duty to shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of [the plaintiff's] claims,” and may properly be dismissed by the court. Gonzales
v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996) (McAvoy, C.J.).
As it currently stands, Plaintiff's filings wholly fail to provide fair notice of the claims he attempts to assert. Given its lack of
clarity, the Court recommends dismissal of the action because it is not acceptable under Rules 8 and 10 of the Fed. R. Civ. P.
Second, and in the alternative, I recommend that Plaintiff's action be dismissed because he fails to state a claim upon which
relief may be granted. 3 Plaintiff fails to allege any causes of action and it is thus difficult to analyze Plaintiff's claims. However,
to the extent that he intended to allege causes of action pursuant to 42 U.S.C. § 1983, he fails to allege the involvement of a
state actor. Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.
1994)) (“To state a valid claim under § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person
acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or
laws of the United States.”).
3 Due to the nature of Plaintiff's filings, it is difficult to precisely determine exactly which doctrine applies, but his claims
are also likely barred. “[I]n the event the underlying state court proceedings are concluded, such claims are likely barred
by the Rooker-Feldman doctrine.” Walker v. O'Connor, 22-CV-0581, 2022 WL 2341420, at *6 (N.D.N.Y. June 29,
2022) (Dancks, M.J.). In the event that Plaintiff's underlying state court proceeding remains pending, his request for
this Court's involvement may also implicate the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971).
Under the Younger doctrine, “federal courts [must] abstain from taking jurisdiction over federal constitutional claims
that involve or call into question ongoing state proceedings.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191,
198 (2d Cir. 2002).
*5 Third and in the alternative, I recommend that Plaintiff's action be dismissed to the extent that it asserts claims against New
York State—or any of its arms or agencies—because it is immune from suit pursuant to the Eleventh Amendment. Papasan v.
Allain, 478 U.S. 265, 276 (1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984); see Ognibene v.
Niagara Cnty. Sheriff's Dep't, 03-CV-0678E, 2003 WL 24243989, at *3 (W.D.N.Y. Dec. 1, 2003) (“To the extent the plaintiff
names various state courts as defendants and seeks either legal or equitable relief against them under § 1983, they are immune
from such suit under the Eleventh Amendment.”).
For each of these reasons, I recommend that Plaintiff's action be dismissed.
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V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at
least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927
F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”).
An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive”
such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v.
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support
its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend
is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). 4
4 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that
the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—that the Court should grant
leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint
would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 F. App'x 30.
Although this Court has serious doubts, it is not clear whether a better pleading would permit Plaintiff to assert a cognizable
cause of action against Defendants. Out of an abundance of caution and in deference to Plaintiff's pro se status, the undersigned
recommends the action be dismissed with leave to amend to cure the defects as stated above.
If Plaintiff chooses to avail himself of an opportunity to amend, such amended pleading must set forth a short and plain statement
of the facts on which he relies to support any legal claims asserted. Fed. R. Civ. P. 8(a). In addition, the amended complaint
must include allegations reflecting how the individual(s) named as Defendant(s) are involved in the allegedly unlawful activity.
Finally, Plaintiff is informed that any amended complaint will replace the existing Complaint, and must be a wholly integrated
and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with
the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended
complaint ordinarily supersedes the original, and renders it of no legal effect.” (internal quotation marks omitted)).
*6 ACCORDINGLY, it is
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is DENIED without prejudice and with leave to renew; and it is
further
ORDERED that should Plaintiff wish to proceed with this action, he must either (i) pay the $405.00 filing fee, or (ii) submit
a completed, signed, and certified Long Form IFP application in accordance with this Order and Report-Recommendation
within thirty (30) days from the date of the filing of this Order and Report-Recommendation. Plaintiff is advised that, if he
does not fully comply with this Order and Report-Recommendation within thirty days, the undersigned will issue a report and
recommendation to the assigned district judge that the action be dismissed; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO AMEND Plaintiff's action pursuant to 28 U.S.C. 1915(e)
(2)(B) as frivolous; and it is further respectfully
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case
and serve a copy upon the parties in accordance with the local rules. 5 The Clerk shall also send Plaintiff a blank Long Form
IFP application.
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5 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the
foregoing report. 6 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R.
Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)).
6 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be
added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation,
and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a
Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2024 WL 248586
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2024 WL 4783943
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United States District Court, N.D. New York.
Steven J. HANYON, Plaintiff,
v.
EXPRESS AUTO CREDIT CORP., Angelo Pasquale, and Hannah Doolittle, Defendants.
3:23-CV-1640 (MAD/ML)
|
Signed November 14, 2024
Attorneys and Law Firms
STEVEN J. HANYON, 22 Weber Road, Port Crane, New York 13833, Plaintiff pro se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Plaintiff commenced this action against Defendants Express Auto Credit Corporation, Angelo Pasquale, and Hannah
Doolittle. See Dkt. No. 1. Upon review of Plaintiff's submissions, this Court issued a text order directing Plaintiff to comply
with the Federal Rules of Civil Procedure. See Dkt. No. 5. Specifically, the Court directed Plaintiff to submit a complaint that
includes a short and plain statement of his claim(s). See id. Thereafter, Plaintiff submitted a letter to this Court enclosing the
“Complaints you asked for,” which was followed by another letter that included additional allegations. Dkt. Nos. 8, 10.
In an Order and Report-Recommendation, Magistrate Judge Lovric conducted an initial review of the complaint and subsequent
submissions. See Dkt. No. 11. Despite recommending that Plaintiff's application for in forma pauperis application be denied as
incomplete, Magistrate Judge Lovric continued to review the sufficiency of the “complaint.” 1 In his review, Magistrate Judge
Lovric recommending the Court dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted.
See id. at 8-11. Additionally, Magistrate Judge Lovric noted that it is likely that Plaintiff's claims are precluded under either
the Rooker-Feldman doctrine or Younger abstention, because Plaintiff's claims appear to be related to an underlying state-court
action. See id. at 8-9 n.3. Moreover, to the extent that Plaintiff is attempting to bring a claim pursuant to 42 U.S.C. § 1983,
Magistrate Judge Lovric recommended that the claim be dismissed because Plaintiff has failed to allege the involvement of a
state actor. See id. at 9. Despite his serious doubts as to Plaintiff's ability to state a cognizable cause of action, Magistrate Judge
Lovric recommended that the Court permit Plaintiff an opportunity to amend his complaint. See id. at 10.
1 Plaintiff has since submitted a completed application to proceed in forma pauperis, which the Court has reviewed and
will grant solely for purposes of reviewing the sufficiency of the allegations. See 28 U.S.C. § 1915(e)(2).
When a party files specific objections to a magistrate judge's report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). However, when a party files “[g]eneral or conclusory objections, or objections which merely recite
the same arguments [that he] presented to the magistrate judge,” the court reviews those recommendations for clear error only.
O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After
the appropriate review, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
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“[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings
drafted by lawyers.’ ” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)). 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. Id. (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)).
*2 In the present matter, the Court finds that Magistrate Judge Lovric correctly determined that Plaintiff's complaint and
additional submissions fail to state a plausible claim for relief. In his submission providing the Court with the “Complaints” that
the Court asked for, Plaintiff simply provided the Court with a series of documents related to Plaintiff's New York State Division
of Human Right's complaints that were filed against non-parties to this action. See Dkt. No. 8 at 4-10. Additionally, Plaintiff's
letter includes two documents each titled “Complaint,” one with a caption against non-party Universal Instruments Corporation
and one with a caption against Defendants Express Auto Credit Corporation and Pasquale. See id. at 2-3. Plaintiff appears to
allege that Defendant Express Auto Credit Corporation remotely shut off a device in a 2013 Chevy Cruze, which resulted in
Plaintiff being “blocked from work” and the termination of an employment contract with non-party Universal Instruments. See
id. at 3.
In a document styled as a “motion for summary judgment,” Plaintiff discusses various forms of discrimination he believes
that he has endured since childhood at the hands of various non-parties and due to various New York State policies. See Dkt.
No. 10 at 1. Plaintiff also outlines his educational history and various experiences with his ex-wife. See id. This motion for
summary judgment further alleges that at some point in time Plaintiff began working for Universal and was required to get a
new vehicle when his old one died. Plaintiff purchased a 2013 Chevy Cruze from Defendant Express Auto Credit Corporation,
which was subsequently turned off through a “GPS remote shut-off switch.” Id. at 2. When Plaintiff returned the vehicle to
Defendant Express Auto Credit Corporation, he was unable to obtain a new vehicle because of his credit score and thereafter
“sent them a[n] email threatening them.” Id. This threat caused New York to confiscate his firearm. See id. at 2-3. In his motion
for summary judgment, Plaintiff asserts that (1) he is in a lot of debt, (2) he has been waiting for unemployment benefits, (3)
he filed the “NYS Poor Person affidavit and also A summary judgment in NYS Supreme Court,” which have not been ruled
on yet, (4) a judge in the Town of Union imposed a fine that Plaintiff cannot afford, and (5) he pleaded guilty to a violation for
disorderly conduct upon the advice of the public defender representing him. See id. at 3.
As Magistrate Judge Lovric correctly concluded, Plaintiff's submissions wholly fail to provide fair notice of the claims he is
attempting to assert and, therefore, are subject to dismissal under Rules 8 and 10 of the Federal Rules of Civil Procedure.
Additionally, to the extent that Plaintiff is attempting to bring a claim pursuant to 42 U.S.C. § 1983, he has failed to allege the
involvement of a state actor. See Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citation omitted).
Following issuance of the Order and Report-Recommendation, although Plaintiff did not submit objections, he did submit
several additional filings, including, among other things, an amended complaint, an amended motion for leave to proceed in
forma pauperis, a request for entry of default, a motion for default judgment, a letter motion “requesting a Settlement and Final
Judgment,” and a “Request for Personal Property Levy.” Dkt. Nos. 12-13, 17, 18, 21, 23. These additional submissions fail to
provide any clarity to the claims Plaintiff is attempting to bring or the relief he seeks. For example, in his amended complaint, in
the section entitled “Statement of Claim,” Plaintiff states as follows: “Blocking real mail delivery, endangering the public with
such a device and Unsealing 2 Cases in the Town of Fenton during the same time of trying to purchase 2013 Chevy Cruze.” Dkt.
No. 12 at 4. In the section entitled “Relief,” Plaintiff states as follows: “Time that was robbed to be living happy, and I enjoy
paying taxes to support my country it is how I serve it. I think the time, and the employee contract adds up with everything
else. I also think it should be the last party that joined the rest to pay, because they acted on there own action to take matter
in their own hands to personal and confidential information about me that does not even belong to them.” Id. No additional
facts are provided in support of his claims.
*3 In his request for a “Final Judgment and Settlement,” Plaintiff states that he is seeking “[t]o recover time that was lost from
employment for not being able to be independent with my own vehicle because of the GPS Remote Device that was in a 2013
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Chevy Cruze, I refused to drive it finding out the device was actually in the 2013 Chevy Cruze and returned the vehicle back
with my old company Universal Instruments, because it could endanger the public and myself.” Dkt. No. 21 at 3.
Nothing in Plaintiff's amended complaint or other submissions following the issuance of the Order and Report-Recommendation
provide the Court with the necessary clarity to permit this matter to proceed. Plaintiff's submissions fail to provide fair notice to
Defendants or the Court about the claims he is attempting to assert or the underlying factual basis. Additionally, in his amended
complaint, Plaintiff asserts that the basis for federal court jurisdiction is diversity of citizenship. See Dkt. No. 12 at 3. However,
according to the New York State Department of State website, Defendant Express Auto Credit Corporation is a domestic business
corporation, with its principal place of business in Broome County, New York. Since it is a New York corporation, and Plaintiff
is a resident and citizen of New York, the Court lacks diversity jurisdiction over this matter. See 28 U.S.C. § 1332; see also
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). Moreover, affording Plaintiff the special solicitude
due to pro se litigants, the Court is unable to discern any basis for exercising federal question jurisdiction over this matter. As
Magistrate Judge Lovric noted, Plaintiff has failed to allege any conduct by a state actor, as required to state a claim under 42
U.S.C. § 1983, and none of the facts alleged permit the Court to discern any other federal statute on which Plaintiff may be
attempting to rely. Accordingly, the Court finds that Plaintiff's complaint and amended complaint must be dismissed.
Generally, a court should not dismiss an action filed by a pro se litigant without granting leave to amend at least once “when a
liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is
substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Here, following the issuance of the Order and Report-Recommendation, Plaintiff filed an amended complaint along with several
additional documents containing various allegations in support of his claims. Despite this, and the Court's liberal reading of
all of Plaintiff's submissions, Plaintiff has failed to plausibly allege a valid cause of action or that the Court has subject matter
jurisdiction to adjudicate any such claim. Accordingly, this action is dismissed without further leave to amend.
Based on the foregoing, the Court hereby
ORDERS that Magistrate Judge Lovric's Order and Report-Recommendation (Dkt. No. 11) is ADOPTED in its entirety; and
the Court further
ORDERS that Plaintiff's amended motion for leave to proceed in forma pauperis (Dkt. No. 13) is GRANTED for filing
purposes only; and the Court further
ORDERS this action is DISMISSED without leave to amend pursuant to 28 U.S.C. § 1915; and the Court further
ORDERS that the Clerk's entry of default (Dkt. No. 19) is VACATED as improvidently granted; and the Court further
*4 ORDERS that the Clerk of the Court shall TERMINATE all additional pending motions in this matter (Dkt. Nos. 17,
21, 23); and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants’ favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
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All Citations
Not Reported in Fed. Supp., 2024 WL 4783943
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Hanyon v. United States, Slip Copy (2025)
2025 WL 1610574
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2025 WL 1610574
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Steven J. HANYON, Plaintiff,
v.
The UNITED STATES, et al., Defendants.
3:25-cv-0212 (BKS/TWD)
|
Signed April 15, 2025
Attorneys and Law Firms
STEVEN J. HANYON, Plaintiff, pro se, 22 Weber Road, Port Crane, NY 13833
REPORT-RECOMMENDATION AND ORDER
Thérèse Wiley Dancks, United States Magistrate Judge
I. INTRODUCTION
*1 The Clerk has sent to the Court for review a complaint, Dkt. No. 1, an amended complaint, Dkt. No. 16, and a second
amended complaint, Dkt. No. 18, submitted by pro se plaintiff Steven J. Hanyon (“Plaintiff”), together with a motion to proceed
in forma pauperis (“IFP”), Dkt. No. 7. For the reasons set forth below, Plaintiff is financially eligible to proceed IFP and the
undersigned recommends dismissing the complaints with leave to amend.
II. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. Dkt. No. 7. Upon review, Plaintiff's IFP
application demonstrates economic need. See id. Therefore, he is granted permission to proceed IFP.
III. STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an IFP complaint if the action is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also
dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in
original). However, “ ‘special solicitude’ for pro se pleadings has its limits, because pro se pleadings still must comply with ...
the Federal Rules of Civil Procedure ....” Cole v. Smrtic, No. 1:24-CV-00847 (MAD/CFH), 2024 WL 4870495, at *2 (N.D.N.Y.
Nov. 21, 2024) (citing Kastner v. Tri State Eye, No. 7:19-CV-10668, 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)), report-
recommendation adopted, 2025 WL 247901 (N.D.N.Y. Jan. 21, 2025).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts
alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d
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133, 136 (2d Cir. 1994) (citations omitted). However, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Generally, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795
(2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the
problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course,
where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”).
Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion
to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
IV. BACKGROUND 1
1 Citations to Plaintiff's submissions will be to the pagination generated by CM/ECF, the Court's electronic filing system.
Excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and
grammar have not been corrected.
*2 On February 13, 2025, Plaintiff commenced the instant action by filing what was docketed as a complaint/motion against
The United States and the State of New York. Dkt. No. 1. The one page “complaint” states, in full:
I Steven Hanyon write you this Motion because, I am treated like have no Constitutional Rights in my
free Country that my Mothers and Fathers created for everyone here and myself, I have been stranded
where I am at and filed a lawsuits in New York State Supreme Court, US District Court and Small Claims
in Town of Union Court against Express Auto Credit and My old Company Universal Instruments for
not treating me very well as a employee and making me file a lawsuit all by myself, I did have criminal
matters with my ex-wife, but had them dropped due to physical and verbal abuse, They were reinstated
and put back in Broome County Records during the time I tried purchasing a vehicle from Express Auto
Credit, The women in my ex-wife family like to convince the same kind of sexual abuse of some sort
of perverting to District Attorneys in the area to try to be the only ones to have rights of their children
and the fathers have to struggle or can not have rights to their kids, One day I was walking through the
woods to help my mind clear to vent because I am just existing here and I was shot in the lower part
of my body I had x-ray done on my abdomen, I emailed District Attorney talking to them about it and
sent a picture of the bullet wounds on the left side of my abdomen and heard nothing back, I had help
through the Victims Crime Unit I am only suppose to have help for forty-seven days but I am not treated
very well by Local, State, and lower Federal Courts the judges act like prosecutors and think that the
people need to pay the penalty instead of the defendants by using Welfare instead of a settlement, I do
not want to go in a duration period where I cant work for two years or unlimited, I don't like to work I
love to Work, I need it to be independent and have good healthcare. I Steven Hanyon a US Colonial of
these United States write you such a motion.
Dkt. No. 1 at 1. Plaintiff did not submit a civil cover sheet or proposed summonses. See id.
That same day, the Court administratively closed this matter due to Plaintiff's failure to pay the required filing fee. Dkt. No. 3.
On February 24, 2025, in lieu of paying the Court's filing fee, Plaintiff filed a motion to proceed IFP and the case was reopened.
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Dkt. Nos. 7, 8. By Text Order issued February 27, 2025, Plaintiff was advised, inter alia, that because he was seeking IFP status,
the Court must conduct an initial review of the complaint for sufficiency under 28 U.S.C. § 1915. Dkt. No. 11.
On March 4, 2025, Plaintiff filed a letter and a declaration seemingly in support of his motion for summary judgment, which
the Court previously denied as premature. See Dkt. Nos. 11, 12, 13. On March 5, 2025, the Court advised, inter alia, that it
was in the process of conducting an initial review of the complaint pursuant 28 U.S.C. § 1915, and that there was no need for
Plaintiff to file any further information until after the Court completed its review. Dkt. No. 14. Plaintiff was informed that any
further filings, other than an amended complaint if he chose to file one, would be summarily stricken from the docket. Id. It
was further noted that if Plaintiff wished to alter his complaint, or add any other information to it, he must file an amended
complaint which must be a complete pleading. Id.
*3 Thereafter, Plaintiff filed a “motion for a consent money judgment,” Dkt. No. 15, and a one-page “amended complaint,”
which states in full:
I have been stuck here since April 4 2023, without being able to be independent with my own vehicle and
tried collecting unemployment for a year, I have material facts that I filed them in the last District Court
Case and from the Town of Union Court that Express Auto really has GPS Remote Shut-off devices in
their vehicles, So I do not know if they reinstate old cases to be allowed to put in such a device but those
old cases and even old child support where thrown out because my ex-wife tried to use them as a abuse
tactics, I have been trying to get some kind of funds from theses cases instead of using public assistance
where there could be a lien put on the property, My Parents already pay taxs on the property they do not
need a lien to pay on, I have been like shot six times from start of lawsuit cases, hopefully we can all
agree on something right and put a better end to all cases.
Dkt. No. 16 at 1. On March 11, 2025, Plaintiff filed a letter and a “second amended complaint.” Dkt. Nos. 17, 18.
Plaintiff's second amended complaint, written on a civil form complaint, is exceedingly sparse. See generally Dkt. No. 18.
He names Express Auto Credit and Universal Instruments as defendants and indicates the basis for this Court's jurisdiction is
federal question and diversity of citizenship. Id. at 3. Where the form asks for the federal statutes, treaties, or provisions of
the United States Constitution that are at issue in the case, Plaintiff indicates, “The 2nd & 5th Amendments and old Charges
that have State and Federal statute of limitations.” Id. at 3. Under the statement of claim, Plaintiff states, “Being harassed at
Universal during purchase of 2013 Chevy Cruze about old criminal history.” Id.
Turning to the Court's diversity of citizenship jurisdiction, Plaintiff indicates he is a citizen of the State of New York and that
defendant Express Auto Credit Corp is incorporated under the laws of the State of New York. Id. at 3-5. Under the amount in
controversy, Plaintiff states, “Since time of Termination of employment being blocked from the Workforce due to Express Autos
GPS Remote Shut-off Device.” Id. at 4. As relief, Plaintiff seeks, “Consent Judgment that the Defendants are able to afford,
from being harassed at Universal and Express Auto Credits Incendiary Device endagering the Public and myself, keeping me
from future employment in the workforce.” Id. Plaintiff also states, “I read that when you amend a complaint that you have to
file another complaint so I used this certified complaint.” Id. at 5.
By Text Order issued March 12, 2025, the Court advised that in view of Plaintiff's pro se status, it would consider all three
complaints, Dkt. Nos. 1, 16, and 18, as one pleading for purposes of initial review under 28 U.S.C. § 1915, and that a decision
would be issued in due course. Dkt. No. 19. In the meantime, Plaintiff was warned that any additional document purporting to
be amended complaints would be summarily stricken from the docket. Id.
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On March 14, 2025, Plaintiff filed a letter request to “file satisfaction of judgments in all cases to close them out,” which the
undersigned construed as a voluntarily dismissal. Dkt. No. 20. On March 17, 2025, the Court granted Plaintiff's request, and
the case was closed without prejudice by reason of voluntary dismissal. Dkt. No. 21.
*4 However, the next day, Plaintiff filed a motion and the case was reopened on March 19, 2025. Dkt. Nos. 22, 23. The
Court once again advised that Plaintiff's complaints, Dkt. Nos. 1, 16, and 18, construed as one pleading, would be reviewed
for sufficiency pursuant to 28 U.S.C. § 1915, and a decision would be issued in due course. Dkt. No. 23. Plaintiff was further
advised that any additional documents purporting to be amended complaints, would be summarily stricken form the docket. Id.
Nevertheless, Plaintiff proceeded to filed numerous documents on the docket, such as a proposed entry of judgment, proposed
writs of execution, a notice of appeal, and several letters. See Dkt. Nos. 24, 26, 27, 28, 29, 30. By Text Order issued March
28, 2025, Plaintiff's numerous requests, if any, in his most recent filings were denied as premature because his complaints, Dkt.
Nos. 1, 16, and 18, were still under review for sufficiency pursuant to 28 U.S.C. § 1915. Dkt. No. 31. Plaintiff was warned that
his filings were becoming vexatious and, therefore, it was ordered he may not file any further documents until after the Court
had completed its sufficiency review. Id. Plaintiff was also warned that any further documents he filed before the Court issued
its decision regarding the sufficiency of his complaints, Dkt. Nos. 1, 16, 18, would be summarily stricken from the docket. Id.
Once again, Plaintiff disregarded the Court's directive and filed letters on April 3, 2025, and April 5, 2025. Dkt. No. 32, 34.
V. ANALYSIS
Upon review, even afforded a liberal construction, the complaint, amended complaint, and second amended complaint fail to
comply with the pleading requirements set forth in the Federal Rules of Civil Procedure and fail to state a claim upon which
relief may be granted.
A. Rules 8 and 10
First, Rule 8 of the Federal Rules of Civil Procedure requires a pleading contain, inter alia, “a short and plain statement of the
claim showing that the pleader is entitled to relief ....” Fed. R. Civ. P. 8(a)(2). “The 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, 2024 WL 4870495, at *2 (quoting Fed. R. Civ. P. 8(d)). Therefore, 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).
Next, as relevant here, Rule 10 of the Federal Rules of Civil Procedure provides “[a] party must state its claims or defenses in
numbered paragraphs, each limited as far as practicable to a single set of circumstances .... 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. Rule 10 serves “to provide an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55 (internal quotations and citation omitted).
*5 A complaint that fails to comply with these pleading requirements “presents far too a heavy burden in terms of defendants’
duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of their claims,”
and may properly be dismissed by the Court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996); see also Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (a court may dismiss a complaint for failure to comply with Rule 8(a) where it “is so
confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised”). Such is the case here.
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In this case, Plaintiff's complaints do not provide a “short and plain statement of the claim showing that the pleader is entitled
to relief” and lack numbered paragraphs, limited as far as practicable to a single set of circumstances. Fed. R. Civ. P. 8(a),
10. Instead, Plaintiff's original complaint and amended complaint, although short, are rambling, disjointed, and so “otherwise
unintelligible that its true substance, if any, is well disguised.” Salahuddin, 861. F.2d at 42; see also Dkt. Nos. 1, 16. The second
amended complaint fares no better. See Dkt. No. 18. The second amended complaint amounts to a few incomplete sentences
without factual context or support. Furthermore, it is entirely unclear what relief Plaintiff seeks in this Court. See id. at 5. As a
result, whether considered singularly or together, it is not possible for the Court to make sense of his claim, if any, nor would
the complaints provide sufficient notice to the defendants of any claim asserted against them. See generally, Dkt. Nos. 1, 16, 18.
Accordingly, the Court recommends dismissing the complaints because they are not acceptable under Rules 8 and 10 of the
Federal Rules of Civil Procedure. 2 See Lamothe v. Brown, 5:22-CV-161 (TJM/CFH), 2023 WL 316013, at *8 (D. Vt. Jan. 19,
2023). (“The lack of factual support, context, or clear statements of the claims and explanations as to how each defendant is
personally involved in the alleged violation of each area of law or right asserted renders plaintiff's complaint plainly violative
of Rule 8[.]”).
2 The Court notes Plaintiff was previously apprised of the pleading requirements set forth in the Federal Rules of Civil
Procedure. See Hanyon v. Express Auto Credit Corp., No. 3:23-CV-1640 (MAD/ML), 2024 WL 248586, at *1 (N.D.N.Y.
Jan. 22, 2024) (recommending dismissal of the action under Rules 8 and 10 of the Federal Rules of Civil Procedure and,
to the extent Plaintiff attempted to bring a claim pursuant to 42 U.S.C. § 1983, for failure to state a claim because failed
to allege the involvement of a state actor and the State of New York was immune from suit pursuant to the Eleventh
Amendment), report-recommendation adopted, 2024 WL 4783943 (N.D.N.Y. Nov. 14, 2024). Plaintiff was also advised
that his claims were likely barred by the Rooker-Feldman doctrine or the Young abstention doctrine. Hanyon, 2024 WL
248586, at *4 n.3 However, due to the nature of his filings it was difficult to determine which doctrine would apply.
Id. The Court further notes on February 17, 2025, the case at bar was deemed “not related” to Case No. 3:23-CV-1640
(MAD/ML) and, therefore, direct assignment was not warranted and the case was randomly assigned. Dkt. No. 4.
B. Failure to State a Claim
Additionally, Plaintiff's complaints fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915. Even when liberally
construed, the complaints lack any basis in law or fact and set forth “no cognizable avenue for relief.” Georges v. Rathner, No.
1:17-CV-1246 (DNH/CFH), 2017 WL 8230677, at *2 (N.D.N.Y. Dec. 22, 2017), report-recommendation adopted, 2018 WL
1353058 (N.D.N.Y. Mar. 15, 2018); Georges v. Hatser, No. 1:17-CV-1243 (GTS/CFH), 2018 WL 816846, at *3 (N.D.N.Y. Jan.
2, 2018) (“[The] plaintiff has not provided sufficient facts for this Court to assess [the] plaintiff's complaint, as plaintiff has given
no context for her general statements about violations of the law ... nor explanations as to how her constitutional rights were
violated[.]”), report-recommendation adopted, 2018 WL 813502 (N.D.N.Y. Feb. 9, 2018); Ehlers v. C.I.A., No. 6:15-CV-387
(MAD/ATB), 2015 WL 3637431, at *3 (N.D.N.Y. June 10, 2015) (“[The p]laintiff's complaint does not state a valid claim for
which relief can be granted and lacks substance.”); Ying Li v. City of New York, 246 F. Supp. 3d 578, 598 (E.D.N.Y. 2017)
(“Pleadings that do not differentiate which defendant was involved in the unlawful conduct are insufficient to state a claim.”).
*6 Insofar as Plaintiff intended to bring claims under 42 U.S.C. § 1983 for alleged violations of his constitutional rights, the
Court recommends that they be dismissed. To state a claim under Section 1983, a litigant must allege both that: (1) a right
secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under
the color of state law, or a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988).
Section 1983 “constrains only state conduct, not the ‘acts of private persons or entities.’ ” Hooda v. Brookhaven Nat'l Lab.,
659 F. Supp. 2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982)). Accordingly, “a litigant
claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.”
Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (quotation marks and citation omitted); Fabrikant v.
French, 691 F.3d 193, 206 (2d Cir. 2012) (“A plaintiff pressing a claim of violation of his constitutional rights under § 1983 is
[ ] required to show state action.”) (quotation marks and citation omitted). Indeed, “the under-color-of-state-law element of §
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1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (quotation marks and citation omitted).
First, even liberally construed, Plaintiff's Section 1983 claim against Express Auto Credit and Universal Instruments for alleged
violations of his constitutional rights are not plausible because these defendants are not state actors. As noted, Section 1983
provides that an action may be maintained against a “person” who has deprived another of rights under the “Constitution and
laws.” 42 U.S.C. § 1983. Neither of these entities are “persons” within the meaning of Section 1983.
Second, The State of New York and The United States are immune from suit. “As a general rule, state governments may not be
sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’
Eleventh Amendment immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). New York has not waived its Eleventh
Amendment immunity to suit in federal court, and Congress did not abrogate the states’ immunity in enacting 42 U.S.C. § 1983.
See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). “The United States, as sovereign, is immune
from suit, save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to
entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941). The United States has yet to waive its immunity from
suit under 42 U.S.C. § 1983. Ricca v. United States, 488 F. Supp. 1317, 1325 (E.D.N.Y. 1980).
Thus, dismissal is also warranted under 28 U.S.C. § 1915. However, because better pleading could not cure the deficiencies
described above with respect to any Section 1983 claim brought against Express Auto Credit, Universal Instruments, The United
States, and The State of New York, the Court recommends the dismissal be without leave to amend.
C. Subject Matter Jurisdiction
Additionally, and in the alternative, dismissal is warranted for lack of subject matter jurisdiction. 3 See Fed. R. Civ. P. 12(h)(3).
The subject matter jurisdiction of the federal district courts is limited and is set forth generally in 28 U.S.C. §§ 1331 and 1332.
Under these statutes, a federal district court has jurisdiction only when a “federal question” is presented or when plaintiff and
defendant are citizens of different states and the amount in controversy exceeds the sum or value of $75,000.
3 “A dismissal for lack of subject matter jurisdiction must be without prejudice, because without jurisdiction, the district
court lacks the power to adjudicate the merits of the case.” McKie v. Kornegay, No. 21-1943, 2022 WL 4241355, at
*2 (2d Cir. Sept. 15, 2022) (summary order) (internal quotations omitted) (quoting Carter v. HealthPort Techs., LLC,
822 F.3d 47, 54-55 (2d Cir. 2016)).
*7 “[T]he party invoking federal jurisdiction bears the burden of proving facts to establish that jurisdiction.” Linardos v.
Fortuna, 157 F.3d 945, 947 (2d Cir. 1998). “When subject matter jurisdiction is lacking, ‘the district court lacks the power to
adjudicate the merits of the case ....’ ” Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1074 (2d Cir. 2021) (quoting
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016)). In the absence of a basis for exercising jurisdiction, the case
must be dismissed. Fed. R. Civ. P. 12(h)(3); United States v. Cotton, 535 U.S. 625, 630 (2002). In this case, Plaintiff purports
to invoke both federal question and diversity of citizenship jurisdiction. Dkt. No. 18 at 3.
To invoke federal question jurisdiction, a plaintiff's claims must arise “under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. A plaintiff properly invokes [federal question] jurisdiction when [he] pleads a colorable claim ‘arising
under’ the Constitution or laws of the United States.” Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006). Mere invocation of
federal jurisdiction, without any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction. See
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996).
Here, for reasons discussed above, Plaintiff fails to plead a colorable claim “arising under” the Constitution or laws of the United
States and, thus, Plaintiff fails to establish federal question jurisdiction. See, e.g., Rosquist v. St. Marks Realty Assoc., LLC, No.
08-CV-0365, 2008 WL 413784, at *2 (E.D.N.Y. Feb. 13, 2008) (sua sponte dismissing complaint for lack of subject matter
jurisdiction when plaintiff invoked federal statutes but did not allege any cognizable claims pursuant to those statutes); Dante
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v. Ralphs Supermarket, No. 24-CV-3522, 2024 WL 4188926, at *2 (S.D.N.Y. Sept. 11, 2024) (“Mere invocation of federal
jurisdiction, without any facts demonstrating a federal law claim, does not create federal subject matter jurisdiction.”) (citing
Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996)). Even reading the complaints liberally, as
the Court must, nothing suggests the existence of a “colorable federal claim,” that would invoke federal question jurisdiction.
See Chestnut v. Wells Fargo Bank, N.A., No. 11-CV-5369, 2012 WL 601785, at *3 (E.D.N.Y. Feb. 22, 2012); see also 28 U.S.C.
§ 1331. Nor does this case meet the requirement for diversity jurisdiction—both Plaintiff and Express Auto Credit Corp are
alleged to be citizens of New York. See 28 U.S.C. § 1332.
In sum, having carefully reviewed Plaintiff's complaints, Dkt. Nos. 1, 16, 18, and for the reasons above, the undersigned
recommends dismissing the complaint, amended complaint, and second amended complaint.
D. Leave to Amend
As previously stated, before dismissing a pro se complaint or any part of the complaint sua sponte, the Court should generally
afford the plaintiff an opportunity to amend at least once; however, leave to re-plead may be denied where any amendment
would be futile. Ruffolo, 987 F.2d at 131 (2d Cir. 1993). Here, out of an abundance of caution and in deference to Plaintiff's pro
se status, the undersigned recommends the action be dismissed with leave to amend to cure the defects as stated above.
The Court advises Plaintiff that should he be permitted to amend, the pleading must clearly be labeled “Third Amended
Complaint” and bear the docket number, 3:25-cv-0212. The pleading must be signed 4 and comply with Rules 8 and 10 of the
Federal Rules of Civil Procedure. Plaintiff must set forth all of the claims he intends to assert and must demonstrate that a case
or controversy exists between the Plaintiff and the Defendants which Plaintiff has a legal right to pursue and over which this
Court has jurisdiction. He must clearly set forth the facts that give rise to the claims, including the dates, times, and places of
the alleged underlying acts. The third amended complaint must be a wholly integrated and complete pleading that does not rely
upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp,
Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original,
and renders it of no legal effect.” (internal quotation marks omitted)). Piecemeal pleadings are not permitted. See L.R. 15.1. Of
course, Plaintiff may also pursue his claims in state court if appropriate.
4 Rule 11(a) of the Federal Rules of Civil Procedure requires that “[e]very pleading ... must be signed ... by a party
personally if the party is unrepresented.” Fed. R. Civ. P. 11(a). Moreover, Rule 10.1(c)(2) of the Local Rules of Practice
of this District requires that all documents submitted to the Court include the original signature of the attorney or the
pro se litigant.
VI. CONCLUSION
*8 WHEREFORE, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 7) is GRANTED; 5 and it is further
5 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he may incur in this action,
including copying and/or witness fees.
RECOMMENDED that Plaintiff's complaint, amended complaint, and second amended complaint (Dkt. Nos. 1, 16, 18) be
DISMISSED; and it is further
RECOMMENDED that Plaintiff be granted an opportunity to file a third amended complaint that cures the pleading defects
identified in this Report-Recommendation; and it is further
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ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the Second 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. 6 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.
6 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).
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1610574
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2025 WL 1502738
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Steven J. HANYON, Plaintiff,
v.
UNITED STATES, et al., Defendants.
3:25-cv-212 (BKS/TWD)
|
Signed May 27, 2025
Attorneys and Law Firms
Plaintiff pro se: Steven J. Hanyon, Port Crane, New York.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
*1 Plaintiff Steven J. Hanyon filed this action pro se against the United States, the State of New York, Express Auto Credit, and
Universal Instruments. (Dkt. No. 1 (complaint); Dkt. No. 16 (amended complaint); Dkt. No. 18 (second amended complaint)).
Plaintiff also sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 7). This matter was referred to United States
Magistrate Judge Thérèse Wiley Dancks who, on April 15, 2025, granted Plaintiff's application to proceed IFP and issued a
Report-Recommendation, recommending that Plaintiff's complaint, amended complaint, and second amended complaint be
dismissed without prejudice for failure to state a claim and for lack of subject matter jurisdiction but that Plaintiff be granted
leave to amend. (Dkt. No. 36). Magistrate Judge Dancks informed Plaintiff that he had fourteen days within which to file
written objections to the Report-Recommendation under 28 U.S.C. § 636(b)(1), and that the failure to object to the Report-
Recommendations within fourteen days would preclude appellate review. (Dkt. No. 36, at 15–16). Plaintiff filed a two-page
motion to dismiss, (Dkt. No. 39), and a three-page motion for summary judgment, (Dkt. No. 40), but did not file any objections
to the Report-Recommendation.
In an abundance of caution, the Court has reviewed Plaintiff's motion to dismiss and motion for summary judgment to determine
whether they could be read to contain objections to the Report-Recommendation. The motion to dismiss is comprised of citations
to several provisions of the United States Code, but contains no objections and is devoid of factual allegations that would
suggest a plausible claim for relief. (See, e.g. Dkt. No. 39, at 1 (“I order the Court to dismiss due to corruption in the public
that has serve against me supporting me getting hurt in a illegal dual because I do not have a firearm 54 U.S. Code § 104906
- Protection of right of individuals to bear arms. The 2d amendment to the Constitution provides that the right of the people to
keep and bear Arms, shall not be infringed all over a feminist hate crime 18 U.S.C. § 249.”) (quotation marks omitted)). The
summary judgment motion likewise fails to assert any objection to the Report-Recommendation or suggest a basis for relief.
(See, e.g., Dkt. No. 40, at 2 (“[W]hoever is blacklisting me former employers, the State of New York to stop because I love
to work and have better health care for myself, why should the people pay for my health care that can't cover me very well
with my medical conditions and public assistance, it's not the peoples [sic] crime meaning not their penalty 31 U.S. Code §
3711.”) (quotation marks omitted)).
As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court
reviews the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R.
Civ. P. 72(b) advisory committee's note to 1983 amendment. Having reviewed the Report-Recommendation for clear error and
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found none, the Court adopts the Report-Recommendation in its entirety, including Magistrate Judge Dancks’ recommendation
that Plaintiff be given leave to file a third amended complaint. The Court also adopts Magistrate Judge Dancks’ instructions
regarding the filing of a third amended complaint, which bear repeating here:
*2 The Court advises Plaintiff [that any amended pleading] must clearly be labeled “Third Amended Complaint” and bear
the docket number, 3:25-cv-0212. The pleading must be signed and comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Plaintiff must set forth all of the claims he intends to assert and must demonstrate that a case or controversy exists
between the Plaintiff and the Defendants which Plaintiff has a legal right to pursue and over which this Court has jurisdiction.
He must clearly set forth the facts that give rise to the claims, including the dates, times, and places of the alleged underlying
acts. The third amended complaint must be a wholly integrated and complete pleading that does not rely upon or incorporate
by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124,
1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no
legal effect.” (internal quotation marks omitted)). Piecemeal pleadings are not permitted. See L.R. 15.1. Of course, Plaintiff
may also pursue his claims in state court if appropriate.
(Dkt. No. 36, at 14–15).
For these reasons, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 36) is ADOPTED; and it is further
ORDERED that Plaintiff's complaint, amended complaint, and second amended complaint (Dkt. Nos. 1, 16, 18) are
DISMISSED without prejudice for failure to state a claim and for lack of subject matter jurisdiction; and it is further
ORDERED that as there is no viable complaint, Plaintiff's motion to dismiss (Dkt. No. 39) and motion for summary judgment
(Dkt. No. 40) are DENIED as moot; and it is further
ORDERED that the “Property Judgment,” (Dkt. No. 46), Plaintiff filed is stricken from the docket as it seeks no apparent
relief; and it is further
ORDERED that any third amended complaint must be filed within thirty (30) days of the date of this Order. Any third amended
complaint must be a complete pleading which will replace the current complaint(s) in total and must comply with the directions
in the Report-Recommendation and this Order; and it is further
ORDERED that if Plaintiff timely files a third amended complaint, it shall be referred to Magistrate Judge Dancks for review;
and it is further
ORDERED that if Plaintiff fails to file a timely third amended complaint, the Clerk shall close this case without further order;
and it is further
ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1502738
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Hanyon v. Linkedin, Slip Copy (2025)
2025 WL 1234156
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2025 WL 1234156
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Steven HANYON, Plaintiffs,
v.
LINKEDIN, Defendant.
3:25-CV-472 (AJB/MJK)
|
Signed April 29, 2025
Attorneys and Law Firms
STEVEN HANYON, Plaintiff, pro se.
ORDER and REPORT-RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge
*1 TO THE HONORABLE ANTHONY J. BRINDISI, U.S. DISTRICT JUDGE:
Plaintiff commenced this action on April 16, 2025, by filing a complaint. (“Compl.”, Dkt. No. 1). On April 17, 2025, U.S.
District Judge Anthony J. Brindisi administratively closed this matter because Plaintiff failed to pay the filing fee. (Dkt. 2). On
April 21, 2025, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”) and Judge Brindisi directed the Clerk
to reopen the case. (Dkts. 3, 4). On April 22, 2025, Plaintiff filed a letter that, broadly construed, might be understood as an
attempt to voluntarily discontinue this action. (Dkt. No. 5). Judge Brindisi granted Plaintiff thirty days in which to advise the
court, in writing, whether he intended to pursue this action. (Dkt. No. 6). Judge Brindisi also advised Plaintiff that any additional
filings in this action were to conform with Local Rule 10.1(c)(1) and other applicable Local Rules. (Id.). On April 24, 2025,
Plaintiff filed a letter plausibly suggesting that he wished to proceed with this action. (Dkt. 7). The Clerk has sent the complaint
and the IFP motion to this Court for review.
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkts. 2, 3). After reviewing Plaintiff's 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 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
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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).
*2 Additionally, Fed. R. Civ. P. 8(a)(2) requires pleadings to contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[ ] more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston 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). A pleading that contains allegations that “
‘are so vague as to fail to give the defendants adequate notice of the claims against them’ is subject to dismissal.” Id. (citing
Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009)).
The Court will now consider Plaintiffs’ complaint under the above standards.
II. Complaint
The one “paragraph” complaint states, in full:
I got locked out of my Linkedin account, I am a Sega associate Intern and I have Intern contracts for
my registered company here Oswego County Hasting Technology. I have sent state to state motion there
before because I am stuck where I am at, due to a car dealership putting a GPS Remote Shut-off Device
in a vehicle that I was trying to purchase from them and I sent there a Money Judgment, well I thought
instead of existing to study online and try remote jobs, so I bump in a couple and because I can't execute
a Judgment and they do not want to pay me with my own lawsuit, they think I have full entitlement, I
have paid into my Linkedin account before I was blocked work.
III. Subject Matter Jurisdiction
Dismissal of the complaint is warranted for lack of subject matter jurisdiction. 1 See Fed. R. Civ. P. 12(h)(3). Subject matter
jurisdiction of the federal district courts is limited and is set forth generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes,
a federal district court has jurisdiction only when a “federal question” is presented, or when plaintiff and defendant are citizens
of different states and the amount in controversy exceeds the sum or value of $75,000.
1 “A dismissal for lack of subject matter jurisdiction must be without prejudice, because without jurisdiction, the district
court lacks the power to adjudicate the merits of the case.” McKie v. Kornegay, No. 21-1943, 2022 WL 4241355, at
*2 (2d Cir. Sept. 15, 2022) (summary order) (internal quotations omitted) (quoting Carter v. HealthPort Techs., LLC,
822 F.3d 47, 54-55 (2d Cir. 2016)).
“[T]he party invoking federal jurisdiction bears the burden of proving facts to establish that jurisdiction.” Linardos v. Fortuna,
157 F.3d 945, 947 (2d Cir. 1998). “When subject matter jurisdiction is lacking, ‘the district court lacks the power to adjudicate
the merits of the case ...’ ” Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1074 (2d Cir. 2021) (quoting Carter
v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016)). In the absence of a basis for exercising jurisdiction, the case must
be dismissed. See Fed. R. Civ. P. 12(h)(3).
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As pleaded, the complaint does not provide a basis for the Court to ascertain whether it has subject matter jurisdiction over this
matter. While the Court can glean that Plaintiff is a citizen of New York based on his address, it does not know if LinkedIn is
a citizen of New York or the amount in controversy. Similarly, the Court is unable to determine whether Plaintiff is invoking
jurisdiction based on a controversy “arising under the Constitution, laws, or treatises of the United States.” 28 U.S.C. § 1331.
The Court therefore recommends that the complaint be dismissed without prejudice and with leave to amend.
IV. Fed. R. Civ. P. 8 and 10
*3 Additionally, and in the alternative, the complaint should be dismissed without prejudice and with leave to amend because
it fails to comply with the pleading requirements of Fed. R. Civ. P. 8 and 10.
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, 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).
Next, as relevant here, Fed. R. Civ. P. 10 provides that “[a] party must state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances ... 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.” Rule
10 serves “to provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189
F.R.D. at 55 (internal quotations and citation omitted).
A complaint that fails to comply with these pleading requirements “presents far too a heavy burden in terms of defendants’ duty
to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of their claims,”
and may properly be dismissed by the Court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996); see also Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (a court may dismiss a complaint for failure to comply with Rule 8(a) where it “is so
confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised”).
Such is the case here, as the complaint does not provide a “short and plain statement of the claim showing that the pleader is
entitled to relief” and lacks numbered paragraphs, limited as far as practicable to a single set of circumstances. Fed. R. Civ. P.
8(a), 10. Instead, Plaintiff's complaint, although only several sentences, is rambling, disjointed, and so “otherwise unintelligible
that its true substance, if any, is well disguised.” Salahuddin, 861. F.2d at 42. As pleaded, the Court is unable to discern what
relief Plaintiff is seeking and the complaint certainly does not provide Defendant with sufficient notice of any claim asserted
against it.
*4 Accordingly, even if subject matter jurisdiction had been alleged, the Court recommends dismissing the complaint without
prejudice and with leave to amend because it does not comply with Fed. R. Civ. P. 8 and 10. 2 See Lamothe v. Brown, 5:22-
CV-161 (TJM/CFH), 2023 WL 316013, at *8 (D. Vt. Jan. 19, 2023). (“The lack of factual support, context, or clear statements
of the claims and explanations as to how each defendant is personally involved in the alleged violation of each area of law or
right asserted renders plaintiff's complaint plainly violative of Rule 8[.]”).
2 Plaintiff was previously apprised of the pleading requirements set forth in the Federal Rules of Civil Procedure. See
Hanyon v. Express Auto Credit Corp., No. 3:23-CV-1640 (MAD/ML), 2024 WL 248586, at *1 (N.D.N.Y. Jan. 22,
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2024) (recommending dismissal of the action under Rules 8 and 10 of the Federal Rules of Civil Procedure and, to
the extent Plaintiff attempted to bring a claim pursuant to 42 U.S.C. § 1983, for failure to state a claim because failed
to allege the involvement of a state actor and the State of New York was immune from suit pursuant to the Eleventh
Amendment), report-recommendation adopted, 2024 WL 4783943 (N.D.N.Y. Nov. 14, 2024). Plaintiff was also apprised
of the pleading requirements set forth in the Federal Rules of Civil Procedure in Hanyon v. The United States et al.,
No. 3:25-CV-212 (BKS/TWD).
V. Failure to State a Claim
In addition to failing to comply with the pleading requirements of Fed. R. Civ. P. 8 and 10, the complaint fails to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915. Liberally construed, the complaint lacks any basis in law or fact
and sets forth “no cognizable avenue for relief.” Georges v. Rathner, No. 1:17-CV-1246 (DNH/CFH), 2017 WL 8230677,
at *2 (N.D.N.Y. Dec. 22, 2017), report-recommendation adopted, 2018 WL 1353058 (N.D.N.Y. Mar. 15, 2018); Georges v.
Hatser, No. 1:17-CV-1243 (GTS/CFH), 2018 WL 816846, at *3 (N.D.N.Y. Jan. 2, 2018) (“[The] plaintiff has not provided
sufficient facts for this Court to assess [the] plaintiff's complaint, as plaintiff has given no context for her general statements
about violations of the law ... nor explanations as to how her constitutional rights were violated[.]”), report-recommendation
adopted, 2018 WL 813502 (N.D.N.Y. Feb. 9, 2018); Ehlers v. C.I.A., No. 6:15-CV-387 (MAD/ATB), 2015 WL 3637431, at
*3 (N.D.N.Y. June 10, 2015) (“[The p]laintiff's complaint does not state a valid claim for which relief can be granted and
lacks substance.”). As noted, Plaintiff's “one paragraph complaint” consists of phrases separated by commas with two periods
interspersed and is simply incoherent.
VI. 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).
Out of an abundance of caution and in deference to Plaintiff's pro se status, the Court recommends that this action be dismissed
without prejudice and with leave to amend to allow Plaintiff the opportunity to cure the defects noted above.
The Court advises Plaintiff that should he be permitted to amend his complaint, the pleading must clearly be labeled “Amended
Complaint” and bear the docket number, 3:25-CV-0472. The pleading must be signed 3 and otherwise comply with Fed. R. Civ.
P. Rules 8 and 10. Plaintiff must set forth all the claims he intends to assert and must demonstrate that a case or controversy
exists between him and Defendant over which this Court has jurisdiction. Plaintiff must clearly set forth the facts that give rise
to the claims, including the dates, times, and places of the alleged underlying acts. The amended complaint must be a wholly
integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed
with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended
complaint ordinarily supersedes the original and renders it of no legal effect.” (internal quotation marks omitted)). Piecemeal
pleadings are not permitted. See L.R. 15.1.
3 Rule 11(a) of the Federal Rules of Civil Procedure requires that “[e]very pleading ... must be signed ... by a party
personally if the party is unrepresented.” Fed. R. Civ. P. 11(a). Moreover, Rule 10.1(c)(2) of the Local Rules of Practice
of this District requires that all documents submitted to the Court include the original signature of the attorney or the
pro se litigant.
*5 WHEREFORE, based on the findings above, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. 3) is GRANTED, 4 and it is further
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4 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he may incur in this action,
including copying and/or witness fees.
RECOMMENDED that Plaintiff's complaint (Dkt. 1) be DISMISSED WITHOUT PREJUDICE and with leave to amend,
and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the Second 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. 5 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
5 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-
Recommendation and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that
prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
All Citations
Slip Copy, 2025 WL 1234156
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Hanyon v. LinkedIn, Slip Copy (2025)
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2025 WL 1482324
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Steven HANYON, Plaintiff,
v.
LINKEDIN, Defendant.
3:25-CV-472 (AJB/MJK)
|
Signed May 23, 2025
Attorneys and Law Firms
STEVEN HANYON, Plaintiff, Pro Se, 22 Weber Road, Port Crane, NY 13833.
ORDER ON REPORT & RECOMMENDATION
Anthony J. Brindisi, United States District Judge:
*1 On April 16, 2025, pro se plaintiff Steven Hanyon (“plaintiff”) filed this civil action alleging that defendant LinkedIn had
locked him out of his account. Dkt. No. 1. After an initial administrative closure, Dkt. No. 2, plaintiff moved for leave to proceed
in forma pauperis (“IFP Application”), Dkt. No. 3, and the case was restored to the active docket for an initial review of the
pleading by the assigned magistrate judge, see Dkt. No. 4.
On April 22, 2025, while this matter was awaiting an initial review, plaintiff filed a letter that, broadly construed, looked like an
attempt to voluntarily discontinue this action. Dkt. No. 5 (indicating that he did “not want to sue LinkedIn”). To clarify matters,
the Court gave plaintiff a thirty-day period in which to “advise the Court, in writing, whether he intends to pursue this action.”
Dkt. No. 6. At that time, the Court cautioned plaintiff “that any filings in this action should conform with Local Rule 10.1(c)
(1) and other applicable Local Rules.” Id.
Thereafter, plaintiff filed a second letter in which he indicated that, inter alia, he was still unable to access his LinkedIn account:
I am not worried about local rules, I use my shoulder to shoulder diversity of state seals on must [sic]
of my legal Documents due to Federal Rules and I follow the US Constitution and US Law Codes and
what is Constitution is invalid, hopefully Linkedin response to this case so I can use my account that has
my registered business here in Oswego County and it under non money making, I want to switch it to
making money so other interns and myself can start making money and start doing entry position and
may get other interferences to stop from other court cases and law enforcement[.]
Dkt. No. 7. Because this letter plausibly suggested that he still wished to proceed with this action, the matter was referred to
the magistrate judge for an initial review of the complaint.
On April 29, 2025, U.S. Magistrate Judge Mitchell J. Katz granted plaintiff's IFP Application and advised by Report &
Recommendation (“R&R”) that the complaint should be dismissed without prejudice for lack of subject-matter jurisdiction.
Dkt. No. 8. As Judge Katz explained, plaintiff's complaint, which is only one paragraph in length, failed to plausibly allege facts
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tending to establish LinkedIn's “citizenship” or the amount in controversy for purposes of establishing diversity jurisdiction,
28 U.S.C. § 1332, and likewise failed to plausibly allege facts tending to suggest that there is a substantial federal question in
issue for purposes of establishing federal-question jurisdiction, § 1331.
Even assuming subject-matter jurisdiction existed, Judge Katz concluded that plaintiff's complaint would still be subject to
dismissal because it failed to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Dkt. No. 8. As Judge Katz
explained, the one-paragraph complaint is “rambling, disjointed, and so otherwise unintelligible that its true substance, if any,
is well disguised.” Id. (cleaned up). However, out of an abundance of caution, Judge Katz recommended dismissing the action
with leave to amend. Id.
*2 Importantly, Judge Katz advised plaintiff that any amended pleading: (1) must be clearly labeled as such; (2) must bear the
appropriate docket number for this action; (3) must be signed; (4) must comply with the Federal Rules of Civil Procedure, and
in particular Rules 8 and 10; and (5) must set forth what claims he intends to assert and what facts would support those claims,
“including the dates, times, and places of the alleged underlying acts.” Dkt. No. 8.
Plaintiff has not lodged objections. Instead, plaintiff has filed a third letter in which he states:
I thank the court so much I got my account back but whoever created the interferance [sic] shouldn't and
I do not think LinkedIn should not use the courts a tech support.
Dkt. No. 9.
Upon review for clear error, Judge Katz's R&R is accepted and will be adopted. See FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 8) is ACCEPTED;
2. Plaintiff's complaint is DISMISSED without prejudice;
3. Plaintiff may, but is not required to, submit an amended complaint that conforms with the instructions set forth in Judge
Katz's R&R and this Order;
4. Plaintiff shall have THIRTY DAYS in which to submit an amended complaint;
5. If plaintiff chooses to file an amended complaint within this time period, the Clerk is directed to REFER this matter to the
assigned magistrate for further review; and
6. If plaintiff chooses not to file an amended complaint within this time period, the Clerk is directed to enter a judgment
dismissing this action without further Order of this Court.
IT IS SO ORDERED.
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All Citations
Slip Copy, 2025 WL 1482324
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