Rummler v. Jefferson County Emergency Medical Service

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
SCOTT RUMMLER,
Plaintiff,
v. 	5:25-cv-1062
(BKS/TWD)
JEFFERSON COUNTY EMERGENCY MEDICAL SERVICE,
Defendant.
_______________________________________________
APPEARANCES:
SCOTT RUMMLER
Plaintiff, pro se
105 Washington Street 307
Watertown, NY 13601
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
Currently before the Court for sufficiency review are an amended complaint, Dkt. No. 7,
and second amended complaint, Dkt. No. 8, submitted by pro se plaintiff Scott Rummler
(“Plaintiff”) asserting claims pursuant to 42 U.S.C. § 1983. For the reasons set forth below, the
undersigned recommends Plaintiff’s pleadings be dismissed.
II. 	BACKGROUND
Plaintiff commenced the instant action by filing a complaint on August 7, 2025, Dkt. No.
1, along with a motion to proceed in forma pauperis (“IFP”), Dkt. No. 2. By Report-
Recommendation and Order dated October 15, 2025, the undersigned granted Plaintiff’s motion
to proceed IFP and recommended dismissal of the complaint for failure to state a claim. See
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generally, Dkt. No. 5. The undersigned concluded Plaintiff’s complaint failed to provide the
Defendant with fair notice of the claims asserted, as the pleading lacked “any explanation as to
how the Defendant harmed” Plaintiff, as well as “any indication as to when or where the alleged
wrongdoing occurred.” Id. at 5 (emphasis in original).1
On November 10, 2025, the Honorable Brenda K. Sannes, Chief United States District
Judge, adopted the Report-Recommendation,2 dismissed Plaintiff’s complaint without prejudice,
and ordered that any amended complaint must be filed with thirty days of the Order. Dkt. No. 6
at 2. Plaintiff subsequently filed an amended complaint, Dkt. No. 7, on November 17, 2025, and
second amended complaint, Dkt. No. 8, on December 3, 2025.
Plaintiff’s second amended complaint, which was drafted utilizing this District’s form
civil rights complaint pursuant to 42 U.S.C. § 1983, lists one Defendant in the caption and list of
parties, “Jefferson Cnty Dept EMS.” See Dkt. No. 8 at 1. The pleading sets forth the following
facts:
Plaintiff subjected to silent entry home invasion by EMS team on or
about 6/15/25. The defendant admitted that they failed to confirm
the 	address 	before 	entry. 	Defendant 	had 	no 	warrant 	or
circumstances justifying the use of a “no-knock” entry. 	Plaintiff
seized, detained, or interrogated without probable cause or due
process. Defendant negligence caused emotional distress worsening
sleep and depressive disabilities. 	Defendant’s action impedes
Plaintiff’s ability to effectively respond to future emergencies.
Id. at 2. Plaintiff alleges violations of the Fourth and Fourteenth Amendments. See id. at 3. The
second amended complaint seeks $200,000 in relief. See id. at 4.
1 Citations will refer to the pagination generated by CM/ECF, the Court’s electronic filing
system. Unless otherwise indicated, 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 Plaintiff did not file objections to the October 15, 2025, Report-Recommendation.
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III. 	LEGAL STANDARD
This Court previously set forth the legal standards for review under 28 U.S.C. §§ 1915
and 1915A, see Dkt. No. 5 at 2-4, therefore, those standards will not be repeated here.
IV. 	ANALYSIS
As with his original complaint, Plaintiff’s amended pleadings list one Defendant, the
Jefferson County Department of Emergency Services. See Dkt. No. 7 at 1; Dkt. No. 8 at 1. For
the reasons that follow, the undersigned recommends dismissal of Plaintiff’s amended pleadings.
“Under New York law, a department of a municipal entity is merely a subdivision of the
municipality and has no separate legal existence.” Hoisington v. Cnty. of Sullivan, 55 F. Supp.
2d 212, 214 (S.D.N.Y. 1999). Therefore, “[a]lthough a municipality is subject to suit pursuant to
section 1983 . . . a municipal [] department does not have the capacity to be sued as an entity
separate from the municipality in which it is located.” White v. Syracuse Police Dep’t, No. 5:18-
CV-1471 (GTS/DEP), 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (citing Monell v. Dept. of
Soc. Servs., 436 U.S. 658, 690 (1978); Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008)) (additional citations omitted), report and recommendation adopted, 2019 WL
974824 (N.D.N.Y. Feb. 28, 2019).
Accordingly, the undersigned recommends Plaintiff’s claims against the Jefferson County
Department of Emergency Services be dismissed because it is not an entity amenable to suit.
See, e.g., Whitbeck v. Otsego Cnty., No. 3:25-CV-0673 (AMN/ML), 2025 WL 2717564, at *3
(N.D.N.Y. Sept. 24, 2025), report and recommendation adopted as modified, 2025 WL 2959467
(N.D.N.Y. Oct. 20, 2025); Shibley v. Bixlerond, No. 6:24-CV-0722 (BKS/TWD), 2024 WL
3460788, at *4 (N.D.N.Y. July 16, 2024), report and recommendation adopted, 2024 WL
4203975 (N.D.N.Y. Sept. 16, 2024).
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Moreover, even construing Plaintiff’s pleadings as asserting claims against Jefferson
County, the pleadings are insufficient to state a claim. See, e.g., Merritt v. Farrell, No. 3:24-CV-
01542 (GTS/ML), 2025 WL 3699876, at *9 (N.D.N.Y. Apr. 9, 2025) (construing claims against
named defendant “Broome County NY Department of Social Services” to be a suit against
“Broome County”), report and recommendation adopted, 2025 WL 3697432 (N.D.N.Y. Dec. 19,
2025). “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; Connick v. Thompson, 563 U.S. 51, 60 (2011)). “The policy or custom
need not be memorialized in a specific rule or regulation,” Kern v. City of Rochester, 93 F.3d 38,
44 (2d Cir. 1996) (citations omitted), and “may be pronounced or tacit and reflected in either
action or inaction.” Cash v. Cnty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011). Municipal liability
under Monell may be established by way of:
(1) a policy formally adopted and endorsed by the municipality; (2)
actions taken by policymaking officials that caused the particular
deprivation alleged; (3) practices by subordinate officials that are
not expressly authorized but are so widespread and consistent that
policymakers must have been aware of them; or (4) a failure by
policymakers to train or supervise that amounts to “deliberate
indifference” to the rights of those who come into contact with the
inadequately trained or supervised municipal employees.
Crawley v. City of Syracuse, 496 F. Supp. 3d 718, 729 (N.D.N.Y. 2020) (citing Deferio v. City of
Syracuse, 770 F. App’x 587, 589 (2d Cir. 2019) (Summary Order)) (additional citation omitted).
“Once a plaintiff has demonstrated the existence of a municipal policy, a plaintiff must then
establish a causal connection, or an ‘affirmative link,’ between the policy and the deprivation of
his constitutional rights.” Deferio, 770 F. App’x at 590 (citing Vippolis v. Vill. of Haverstraw,
768 F.2d 40, 44 (2d Cir. 1985)).
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Here, even afforded a liberal reading, Plaintiff’s pleadings do not suggest a basis for
municipal liability. See generally, Dkt. Nos. 7, 8. Instead, Plaintiff’s complaint appears to
document a single incident of alleged wrongdoing by unnamed “EMS team” members, with no
connection to any municipal policy or custom. See Dkt. No. 8 at 2. Such allegations are
insufficient to support a claim against Jefferson County. See, e.g., Merritt, 2025 WL 3699876, at
*9.
In sum, the sole named Defendant, Jefferson County Department of Emergency Medical
Services, is a municipal department which is not amenable to suit, and, to the extent Plaintiff’s
claims are construed as against Jefferson County, Plaintiff has not pleaded the alleged
constitutional violations were the result of any policy, custom, widespread practice, or failure to
provide adequate training so as to support a claim of municipal liability under Monell.
Accordingly, the undersigned recommends dismissal of Plaintiff’s amended pleadings.
V. 	CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED that Plaintiff’s amended complaint and second amended complaint
be DISMISSED for failure to state a claim; and it is further
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.3 Such objections shall be filed with the Clerk of
3 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
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the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)
(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: January 29, 2026
Syracuse, New York
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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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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2019 WL 981850
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jeramie WHITE, Plaintiff,
v.
SYRACUSE POLICE DEPARTMENT, et al., Defendants.
Civil Action No. 5:18-CV-1471 (GTS/DEP)
|
Signed 01/07/2019
Attorneys and Law Firms
FOR PLAINTIFF: Jeramie White, Pro se, 18-B-0311, Cayuga Correctional Facility, P.O. Box 1186, Moravia, NY 13118.
ORDER, REPORT, AND RECOMMENDATION
DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
*1 This is a civil rights action brought by pro se plaintiff Jeramie White, a New York State prison inmate, pursuant to 42
U.S.C. § 1983, against the Syracuse Police Department (“SPD”) and five of its officers. In his complaint, plaintiff alleges that
defendants violated his constitutional rights during the course of his arrest on February 13, 2017. Plaintiff's complaint and
accompanying application for leave to proceed in forma pauperis (“IFP”) have been referred to me for review. Based upon
my consideration of those materials, I will (1) grant plaintiff's amended IFP application, (2) recommend dismissal of his claim
against the SPD with leave to replead, and (3) recommend that his complaint otherwise be accepted for filing.
I. BACKGROUND
Plaintiff commenced this action on or about December 20, 2018. Dkt. No. 1. According to plaintiff, he and two friends were on
their way to play indoor basketball when their vehicle was pulled over for a traffic infraction. Id. at 4; Dkt. No. 1-1 at 4. Plaintiff
alleges that after the stop, defendant William Kittle forcibly removed White from the vehicle and that Kittle, in addition to
defendants Abraham Mamoun and Shawn Hauck, proceeded to use excessive force against him during the course of his arrest.
Dkt. No. 1 at 4-5, 6-7; see also Dkt. No. 1-1 at 4, 8. Plaintiff further alleges that defendants Altimonda and Fiorini were present
and had an obligation to intervene and prevent the unlawful use of force, but failed to do so. Id. at 5, 7.
Plaintiff was ultimately arrested and charged with resisting arrest, in violation of N.Y. Penal Law § 205.30, and second-degree
obstruction of governmental administration, in violation of N.Y. Penal Law § 195.05. Dkt. No. 1-1 at 4. As relief, plaintiff seeks
compensatory and punitive damages in the amount of $1,000,000. Dkt. No. 1 at 8.
A. Plaintiff's Amended IFP Application 1
1 Plaintiff filed both an original and amended motion to proceed in this action IFP. Dkt. Nos. 2, 6. While the two motions
contain slightly different information concerning plaintiff's financial status, only the amended motion contains the
required certification from an official at the correctional facility in which plaintiff is confined. Compare Dkt. No. 3 with
Dkt. No. 7. Accordingly, plaintiff's original IFP application is denied as incomplete.
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $400, must ordinarily be
paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP if it determines that he is unable
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to pay the required filing fee. 28 U.S.C. § 1915(a)(1). 2 Because I conclude that plaintiff meets the requirements for IFP status,
his amended application for leave to proceed without prepayment of fees is granted. 3
2 The total cost for filing a civil action in this court is $400.00, consisting of the civil filing fee of $350.00, see 28 U.S.C.
§ 1914(a), and an administrative fee of $50.00. Although an inmate granted IFP status is not required to pay the $50.00
administrative fee, he is required to pay, over time, the full amount of the $350.00 filing fee regardless of the outcome
of the action. See 28 U.S.C. § 1915(b)(3).
3 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees that he
incurs in this action, including copying and/or witness fees.
B. Sufficiency of Plaintiff's Complaint
1. Governing Legal Standard
*2 Because I have found that plaintiff meets the financial criteria for commencing this case IFP, I must next consider the
sufficiency of the claims set forth in his complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) 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 ... (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). Similarly, 28 U.S.C. § 1915A(b) directs a court to 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 to “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 Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (“We have found both
sections [1915 and 1915A] applicable to prisoner proceedings in forma pauperis.”).
In deciding whether a complaint states a colorable claim, a court must extend a certain measure of deference in favor of pro se
litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and 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 address
the sufficiency of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The court, however, also has
an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to
proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district
court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee).
“Legal frivolity ... occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim
lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.’ ” Aguilar v. United States,
Nos. 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998) ); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if
the legal theory ... or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d. 51, 53 (2d Cir. 1995) (“[T]he decision
that a complaint is based on an indisputably meritless legal theory, for the purposes of dismissal under section 1915(d), may be
based upon a defense that appears on the face of the complaint.”).
When reviewing a complaint under section 1915(e), the court is guided by the Federal Rules of Civil Procedure. Specifically,
Rule 8 provides that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). 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.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, J.) (quotation marks
and italics omitted).
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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). Although the court should construe the factual allegations of a complaint in a 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.” 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. (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) ).
2. Analysis of Plaintiff's Claims
*3 Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690
(1978), a municipal police department does not have the capacity to be sued as an entity separate from the municipality in which
it is located. See Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (citing Orraca v. City of N.Y., 879 F.
Supp. 148 (S.D.N.Y. 1995) ); Turczyn ex rel. McGregor v. City of Utica, No. 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y.
Nov. 26, 2014) (Sharpe, J.); see also Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Under New
York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence.
Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly
against the Department.”). Although I would ordinarily recommend that, for the sake of judicial efficiency, the court substitute
the City of Syracuse in place of the SPD, plaintiff's complaint contains no factual allegations that would support a Monell claim
against the City of Syracuse. Accordingly, I recommend dismissal of plaintiff's claims asserted against the SPD.
With respect to his remaining claims, although plaintiff makes passing reference to his rights arising under the Eighth and Fourth
Amendments, see Dkt. No. 1 at 6, it is clear from the factual allegations that he is asserting claims for excessive force and the
failure to intervene arising under the Fourth Amendment. See generally Dkt. No. 1; see also Edrei v. Maguire, 892 F.3d 525,
533 (2d Cir. 2018) (“Arrestees may invoke the Fourth Amendment's prohibition against ‘unreasonable’ seizures.”). In light of
the court's obligation to liberally construe a pro se litigant's pleadings, I find that plaintiff's complaint should be accepted for
filing and the individual officer defendants should be required to respond in accordance with the local rules of practice for this
court and the Federal Rules of Civil Procedure. 4
4 The court expresses no opinion concerning whether plaintiff's claims can survive a properly filed motion to dismiss or
motion for summary judgment, or whether he may prevail at trial.
C. Whether to Permit Amendment
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once “when a
liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a) (“The court should freely give leave when justice so requires.”); see also Mathon
v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y. 1995) (permitting leave to replead where court could “not
determine that the plaintiffs would not, under any circumstances, be able to allege a civil RICO conspiracy”). 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, No. 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
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In this case, while I recommend dismissal of plaintiff's claim against the SPD, plaintiff could potentially amend his complaint
to assert a cognizable cause of action against a defendant, such as the City of Syracuse, which is amenable to suit. Accordingly,
I recommend that plaintiff be granted leave to amend his complaint. If plaintiff chooses to file an amended complaint, he must
clearly and concisely set forth the facts that give rise to the claims, including the dates, times, and places of the alleged underlying
acts, and each individual who committed each alleged wrongful act. In addition, plaintiff is informed that any such 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) ).
II. SUMMARY, ORDER, AND RECOMMENDATION
*4 Having reviewed plaintiff's amended application for leave to proceed in this action IFP, I conclude that he has met the
applicable requirements for leave to proceed without prepayment of fees, and will therefore grant his application. Turning to
the merits of his complaint, to the extent that it names five police officers and alleges a violation of 42 U.S.C. § 1983, I conclude
that those claims are not subject to dismissal at this procedural juncture. I recommend a finding, however, that plaintiff's claim
against the SPD is legally deficient and subject to dismissal, but that plaintiff should be afforded an opportunity to amend with
respect to that claim. Accordingly, it is hereby
ORDERED that plaintiff's amended application for leave to proceed in this action without prepayment of fees (Dkt. No. 6) is
GRANTED; and it is further
ORDERED that plaintiff's original application for leave to proceed in this action without prepayment of fees (Dkt. No. 2) is
DENIED as moot; and it is further
RECOMMENDED that plaintiff's complaint (Dkt. No. 1) be accepted for filing with respect to plaintiff's Fourth Amendment
cause of action against defendants Mamoun, Kittle, Hauck, Altimonda, and Fiorini; and it is further
RECOMMENDED that plaintiff's remaining cause of action against the Syracuse Police Department be otherwise DISMISSED
with leave to replead within thirty days of the issuance of an order adopting this recommendation; and it is further
RECOMMENDED that, in the event plaintiff does not choose to file an amended complaint and the above recommendations
are adopted, the case should move forward with respect to plaintiff's Fourth Amendment cause of action against defendants
Mamoun, Kittle, Hauck, Altimonda, and Fiorini.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections
must be filed with the clerk of the court within FOURTEEN days of service of this report. 5 FAILURE TO SO OBJECT TO
THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v.
Racette, 984 F.2d 85 (2d Cir. 1993).
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
Not Reported in Fed. Supp., 2019 WL 981850
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 974824
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jeramie WHITE, Plaintiff,
v.
SYRACUSE POLICE DEPARTMENT; Abraham Mamoun, Syracuse Police Dept.; William Kittle, Syracuse Police Dept.;
Shawn Hauck, Syracuse Police Dept.; Altimonda, Syracuse Police Dept.; and Fiorini, Syracuse Police Dept., Defendants.
5:18-CV-1471 (GTS/DEP)
|
Signed 02/28/2019
Attorneys and Law Firms
JERAMIE WHITE, 18-B-0311, Plaintiff, Pro Se, Cayuga Correctional Facility, P.O. Box 1186, Moravia, New York 13118.
DECISION and ORDER
Hon. Glenn T. Suddaby, Chief U.S. District Judge
*1 Currently before the Court, in this pro se civil rights action filed by Jeramie White (“Plaintiff”) against the Syracuse
Police Department and five of its employees (“Defendants”), is United States Magistrate Judge David E. Peebles' Report-
Recommendation recommending that (1) Plaintiff’s Complaint be accepted for filing by the Court with respect to Plaintiff’s
Fourth Amendment cause of action against Defendants Mamoun, Kittle, Hauck, Altimonda and Fiorini, and (2) Plaintiff’s
remaining cause of action against the Syracuse Police Department be dismissed with leave to replead within thirty days of the
issuance of an Order adopting the Report-Recommendation. (Dkt. No. 9.) Plaintiff did not submit an objection to the Report-
Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) 1
1 The Court notes that, on January 11, 2019, Plaintiff filed a letter from the City of Syracuse Citizen Review Board dated
December 31, 2018, outlining its findings with respect to this matter. (Dkt. No. 10.) In its letter, the Citizen Review
Board upheld Plaintiff’s claim for excessive force against “Det. One,” recommended a written reprimand against that
individual, and absolved “Det. Two,” “Sgt. One,” and “Lt. One” from wrongdoing regarding the use of excessive force.
(Id.) The Court does not liberally construe this letter as any sort of Objection to the Report-Recommendation.
Based upon a review of this matter, the Court can find no clear error in the Report-Recommendation: 2 Magistrate Judge Peebles
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 accepted for filing
with respect to his Fourth Amendment cause of action against Defendants Mamoun, Kittle, Hauck, Altimonda and Fiorini; and
Plaintiff’s remaining cause of action against the Syracuse Police Department is dismissed with leave to replead within thirty
days of the issuance of this Decision and Order.
2 When 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)
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(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 omitted).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 9) is ACCEPTED and ADOPTED in its
entirety; and it is further
ORDERED that Plaintiff’s Complaint is accepted for filing with respect to Plaintiff’s Fourth Amendment cause of action
against Defendants Mamoun, Kittle, Hauck, Altimonda and Fiorini; and it is further
*2 ORDERED that Plaintiff’s remaining cause of action against the Syracuse Police Department is DISMISSED with leave
to replead within THIRTY (30) DAYS of the issuance of this Decision and Order.
ORDERED that, in the event Plaintiff files an Amended Complaint within the above-referenced thirty-day period, it shall be
referred to Magistrate Judge Peebles for review; and it is further
ORDERED that, in the event Plaintiff does not file an Amended Complaint within the above-referenced thirty-day period, this
action shall move forward with respect to his Fourth Amendment cause of action against Defendants Mamoun, Kittle, Hauck,
Altimonda and Fiorini, and the Clerk of the Court is directed to issue summonses and USM-285 forms at that time for service
by the U.S. Marshal Service.
All Citations
Not Reported in Fed. Supp., 2019 WL 974824
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KeyCite Yellow Flag
Report and Recommendation Adopted as Modified by Whitbeck v. Otsego County, N.D.N.Y., October 20, 2025
2025 WL 2717564
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Janel WHITBECK, Plaintiff,
v.
OTSEGO COUNTY; Otsego County Sheriff's Office; Deputy E. Lincoln, in her individual and
official capacities; and Deputy J. Smith, in his individual and official capacities, Defendants.
3:25-CV-0673 (AMN/ML)
|
Signed September 24, 2025
Attorneys and Law Firms
JANEL WHITBECK, Plaintiff, Pro Se, 225 Main Street, Franklin, New York 13775.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Plaintiff Janel Whitbeck (“Plaintiff”) commenced this pro se action against Defendants Otsego County, Otsego County
Sheriff's Office, Deputy E. Lincoln, and Deputy J. Smith (collectively “Defendants”) alleging violations of her civil rights. (Dkt.
No. 1.) Plaintiff did not pay the filing fee and seeks leave to proceed in forma pauperis (“IFP”). For the reasons set forth below,
I (1) grant Plaintiff's IFP application, and (2) recommend that the Complaint be accepted in part for filing and dismissed in part.
I. BACKGROUND
Construed as liberally 1 as possible, the Complaint alleges violations of Plaintiff's civil rights by Defendants. (See generally
Dkt. No. 1.)
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, the Complaint alleges that on March 1, 2025, Plaintiff experienced a medical emergency while attempting
to complete a transaction at Walmart. (Dkt. No. 1 at 2.) Plaintiff alleges that her trained service dog alerted her to the onset of
a transient ischemic attack (“TIA”). (Id.) Plaintiff alleges that she attempted to return to her vehicle to access medication, but
that Walmart staff stopped her, took her to the security office, and summoned law enforcement. (Id.)
The Complaint alleges that Defendants Lincoln and Smith arrested Plaintiff for petit larceny. (Dkt. No. 1 at 2.) Plaintiff alleges
that her speech was garbled, her gait was unsteady, and she was wearing a medical alert bracelet. (Id.) Plaintiff alleges that she
was not handcuffed but was physically steadied by Defendant Smith, which indicated his awareness of Plaintiff's impairment.
(Id.)
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The Complaint alleges that Defendant Lincoln conducted a search during which she saw Plaintiff's medical alert bracelet.
Plaintiff alleges that she explained that she was experiencing a TIA but was taken to booking, fingerprinted, and photographed
with facial droop. (Id.)
Plaintiff alleges that the criminal charges against her were “never dropped” and she was “forced to pay $200 to clear her
record.” (Dkt. No. 1 at 3.)
Based on these factual allegations, Plaintiff asserts the following five causes of action: (1) a claim of false arrest in violation
of the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983; (2) a claim of deliberate indifference to medical needs in
violation of Fourteenth Amendment and 42 U.S.C. § 1983; (3) a claim that Defendants violated the New York State Andrew
Kearse Act (N.Y. Exec. Law § 837-u); (4) a claim that Defendants violated the Americans with Disabilities Act (“ADA”); and
(5) a claim that Defendant Otsego County failed to properly train and supervise its deputies. (Dkt. No. 1 at 2-3.) As relief,
Plaintiff seeks monetary damages in the amount of $5,000,000.00 and injunctive relief requiring Defendant Otsego County to
implement training for deputies related to recognizing and responding to medical emergencies. (Id. at 3-4.)
*2 Plaintiff has not paid the filing fee and seeks leave to proceed IFP.
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be
paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay”
the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). 2 After reviewing Plaintiff's IFP application (Dkt. No. 2),
the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed IFP is granted. 3
2 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison
inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by
a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have
construed that section, however, as making IFP status available to any litigant who can meet the governing financial
criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534,
536 n.1 (S.D.N.Y. 2002).
3 Plaintiff is reminded that, although her IFP application has been granted, she is still required to pay fees that she may
incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if
the court determines that ... the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that
he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief ... requires the ...
court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to
relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
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“In reviewing a complaint ... the court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
*3 Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must”
and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua
sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties ... have had an opportunity to
respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. ANALYSIS
A. Claims Against Defendant Otsego County Sheriff's Office
“Although a municipality is subject to suit pursuant to section 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
(1978), a municipal ... department does not have the capacity to be sued as an entity separate from the municipality in which
it is located.” White v. Syracuse Police Dep't, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.)
(citing Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City
of Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F.
Supp. 2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the
municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are
not amenable to suit and no claims lie directly against the Department.”)), report and recommendation adopted by, 2019 WL
974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.).
“[T]he Sheriff's Department [does not] exist separate and apart from the County and, as a result, [ ] can[not] be sued.” Sagaria
v. Orange Cnty. Jail, 20-CV-2287, 2021 WL 4392422, at *3 (S.D.N.Y. Sept. 24, 2021); see also Gleeson v. County of Nassau,
15-CV-6487, 2019 WL 4754326, at *14 (E.D.N.Y. Sept. 30, 2019) (holding that the Nassau County Sheriff's Department and
Nassau County Correction Center were not proper parties because they are administrative arms of Nassau County); Polite v.
Town of Clarkstown, 60 F. Supp. 2d 214, 216 (S.D.N.Y. 1999) (“Therefore, municipal departments in this State—such as the
Clarkstown Police Department—are not amenable to suit, and no claims can lie directly against them.”).
As a result, I recommend that Plaintiff's claims against Defendant Otsego County Sheriff's Office be dismissed because it is
not an entity that is amenable to suit. See Dudley v. Hochul, 24-CV-0048, 2024 WL 1906594, at *9 (N.D.N.Y. May 1, 2024)
(Lovric, M.J.) (recommending dismissal of claims against the Onondaga County Sheriff because it was “not an entity amenable
to suit.”), report and recommendation adopted, 2024 WL 2399913 (N.D.N.Y. May 23, 2024) (Hurd, J.); Taranto v. Putnam
Cnty., 21-CV-2455, 2023 WL 6318280, at *15 (S.D.N.Y. Sept. 28, 2023) (dismissing claims against the defendant Putnam
County Sheriff's Office because it was “not a suable entity.”).
B. Claims Pursuant to 42 U.S.C. § 1983
1. Unlawful Seizure/False Arrest Claim
“In analyzing claims alleging the constitutional tort of false arrest, ‘[the Court has] generally looked to the law of the state
in which the arrest occurred.’ ” Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007) (quoting Davis v. Rodriguez,
364 F.3d 424, 433 (2d Cir. 2004)). “To establish [a claim of false arrest under New York law] the plaintiff must show that: (1)
the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to
the confinement and (4) the confinement was not otherwise privileged.” Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975).
Confinement is “otherwise privileged” when probable cause exists, in other words, “when the officers have knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in
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the belief that the person to be arrested has committed or is committing a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996). However, “[p]laintiffs are not required to set forth a lack of probable cause in their complaint.” Case v. City of New
York, 233 F. Supp. 3d 372, 384 (S.D.N.Y. 2017). “Whenever there has been an arrest and imprisonment without a warrant, the
officer has acted extrajudicially and the presumption arises that such an arrest and imprisonment are unlawful.” Broughton, 37
N.Y.2d at 458 (internal citations omitted).
*4 Plaintiff has sufficiently plead her false arrest claim against Defendants Lincoln and Smith because she appears to allege
that they did not have a warrant to arrest her. Out of an abundance of caution, mindful of the Second Circuit's instruction that
a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an
opinion as to whether Plaintiff can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a
response be required to Plaintiff's Fourth Amendment false arrest claim against Defendants Lincoln and Smith.
2. Deliberate Indifference to Medical Need
The “Second Circuit has recently observed ... that ... pre-arraignment conditions of confinement claims should be treated
as arising under the Fourteenth Amendment.” Stinson v. Saint Vincent's Hosp., 20-CV-0704, 2022 WL 2047221, at *7 (D.
Conn. June 6, 2022) (citing Shakir v. Stankye, 805 F. App'x 35, 40 (2d Cir. 2020) (summary order)). Under the “applicable
Fourteenth Amendment standard, ‘[a] pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions
of confinement by showing that the officers acted with deliberate indifference to the challenged conditions.’ ” Shakir, 805 F.
App'x at 40 (quoting Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). More specifically, “a plaintiff must demonstrate: (1)
that an official ‘denied [him] treatment needed to remedy a serious medical condition,’ and (2) that the official did so ‘because
of his deliberate indifference to that need.’ ” Mills v. Fenger, 216 F. App'x 7, 10 (2d Cir. 2006) (quoting Weyant v. Okst, 101
F.3d 845, 856 (2d Cir. 1996)).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally
construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiff can withstand
a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiff's Fourteenth
Amendment deliberate indifference to medical needs claim against Defendants Lincoln and Smith.
3. Claims Against Defendant Otsego County
A municipality may not be held liable solely because it employs a tortfeasor. Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29,
36 (2010). Only when the municipality, through the execution of its policies, actually deprives an individual of his constitutional
rights, is it liable for the injury. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
To establish municipal liability, the policy must actually cause the violation of constitutional rights; it must be the moving
force behind the violation. Monell, 436 U.S. at 694; Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979). Official policy
includes the decisions of a government's lawmakers, the acts of policymaking officials, and practices that are so widespread as
to “practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipal liability may also be shown by
establishing that a policymaking official ordered or ratified the employees’ actions either expressly or tacitly.
Finally, municipal liability can, under limited circumstances, be based upon a failure to properly train the municipality's
employees. Connick, 563 U.S. at 61. However, municipal liability is most tenuous when a claim turns on the failure to train. Id.
(citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985) (plurality opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far
more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell”)). To satisfy
the statute, a municipality's failure to train its employees must amount to “ ‘deliberate indifference to the rights of persons with
whom the [untrained employees] come into contact.’ ” Id. (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
*5 Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be
liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiff can
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withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiff's
claims against Defendant Otsego County and Defendants Lincoln and Smith in their official capacities alleging that Defendant
Otsego County failed to train or supervise Defendants Lincoln and Smith which resulted in Plaintiff's false arrest and deliberate
indifference to her medical needs.
C. ADA Claim
Title II of the ADA prohibits any public entity from discriminating against “qualified” individuals with disabilities “in the
provision or operation of public services, programs, or activities.” Tennessee v. Lane, 541 U.S. 509, 517 (2004). 4
4 Title II provides in relevant part that “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
To establish a violation of the ADA, the plaintiff must demonstrate (1) that she is a “qualified individual” with a disability; (2)
that the defendants are subject to the ADA; and (3) that she was denied the opportunity to participate in or benefit from the
defendant's services, programs, or activities, or was otherwise discriminated against by the defendant by reason of her disability.
Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97 (2d Cir. 2014) (citing McElwee v. Cnty. of
Orange, 700 F.3d 635, 640 (2d Cir. 2012)).
It appears that Plaintiff is a qualified individual with a disability 5 and Defendant Otsego County is a public entity that is
subject to the ADA. Moreover, “law enforcement officers who are acting in an investigative or custodial capacity are performing
‘services, programs, or activities’ within the scope of Title II.” Williams v. City of New York, 121 F. Supp. 3d 354, 368 (S.D.N.Y.
2015).
5 A “qualified individual with a disability” is an individual with a disability “who, with or without reasonable
modifications to rules, policies or practices, the removal of ... communication ... barriers, or the provision of auxiliary
aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs
or activities provided by a public entity.” 42 U.S.C. § 12131(2).
Courts in this Circuit have found two fact patterns during the course of an arrest that can commonly raise a legitimate possibility
of discrimination in violation of Title II or the Rehabilitation Act. See Durr v. Slator, 558 F. Supp. 3d 1, 27 (N.D.N.Y. 2021)
(D'Agostino, J.). The first is when police wrongfully arrest a plaintiff because they misinterpret his disability to be criminal
activity. Durr, 558 F. Supp. 3d at 27-28. The second is when police fail to reasonably accommodate a disability during an
investigation or arrest. Id. at 28.
As set forth above in Part IV.B.1., Plaintiff plausibly alleges that she was falsely arrested because her response to her disability
was misinterpreted as criminal activity. Plaintiff alleges that she informed Defendants Lincoln and Smith that she suffers from
TIA and that they observed her medical alert bracelet and in a disoriented state.
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally
construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiff can withstand
a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiff's claims
against Defendant Otsego County and Defendants Lincoln and Smith in their official capacities alleging a claim pursuant to
Title II of the ADA. 6
6 “It is well-settled that ... Title II of the ADA ... [does not] provide[ ] for individual capacity suits against state officials.”
Hill v. LaClair, 20-CV-0441, 2020 WL 2404771, *7 (N.D.N.Y. May 11, 2020) (Hurd, J.) (internal quotation marks and
citation omitted).
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D. New York State Claim
*6 To the extent that Plaintiff attempts to assert a claim pursuant to N.Y. Exec. Law § 837-u, I recommend that it be dismissed
for failure to state a claim upon which relief may be granted. N.Y. Exec. Law § 837-u imposes data collection and reporting
requirements on the division of criminal justice services with the chief administrator of the New York State courts. N.Y. Exec.
Law § 837-u. There is no private cause of action pursuant to N.Y. Exec. Law § 837-u.
Plaintiff also references the “New York State Andrew Kearse Act,” which refers to an Assembly bill from the 2021-2022 New
York State Legislative session that imposes criminal liability for the failure to obtain medical care for a person in custody
displaying medical distress. See New York State Senate Assembly Bill A1745, https://www.nysenate.gov/legislation/bills/2021/
A1745 (last visited September 23, 2025). The Bill appears to still be in committee with the New York State Assembly.
Furthermore, even if this Bill was valid law, there is no private cause of action to enforce criminal violations. See Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another.”); see also Walker v. CIBC Ltd., 20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13,
2021) (Hummel, M.J.) (“It appears plaintiff is either seeking the criminal prosecution of an individual or individuals or a law
enforcement investigation, which is beyond this Court's jurisdiction.”), report-recommendation adopted by 2021 WL 3204860
(N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013)
(D'Agostino, J.) (holding that “there is no private right of action to enforce either state or federal criminal statutes.”).
As a result, I recommend that Plaintiff's claim pursuant to N.Y. Exec. Law § 837-u be dismissed for failure to state a claim
upon which relief may be granted.
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at
least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927
F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”).
An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive”
such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v.
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support
its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend
is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). 7
7 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.
*7 The issue with Plaintiff's claims (1) against Defendant Otsego County Sheriff's Office, and (2) pursuant to New York
Executive Law § 837-u or the “New York Andrew Kearse Act” are substantive such that a better pleading will not cure them.
As a result, I recommend that Plaintiff's claims against Defendant Otsego County Sheriff's Office and pursuant to the New York
Executive Law § 837-u be dismissed without leave to replead.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further respectfully
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RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be (1) ACCEPTED FOR FILING to the extent that it asserts
(a) a claim of false arrest in violation of the Fourth Amendment and 42 U.S.C. § 1983 against Defendant Otsego County and
Defendants Lincoln and Smith in their individual and official capacities; (b) a claim of deliberate indifference to medical needs
in violation of the Fourteenth Amendment and 42 U.S.C. § 1983 against Defendant Otsego County and Defendants Lincoln
and Smith in their individual and official capacities; and (c) a claim that Defendant Otsego County and Defendants Lincoln and
Smith in their official capacities violated Title II of the ADA; and (2) DISMISSED WITHOUT LEAVE TO REPLEAD to
the extent that it asserts claims (a) against the Otsego County Sheriff's Office, and (b) pursuant to New York Executive Law §
837-u or the “New York Andrew Kearse Act”; and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and recommendation on the docket of this case and serve
a copy upon the parties in accordance with the local rules. 8
8 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the
foregoing report. 9 Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R.
Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)).
9 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be
added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation,
and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a
Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
All Citations
Slip Copy, 2025 WL 2717564
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2025 WL 2959467
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Janel WHITBECK, Plaintiff,
v.
OTSEGO COUNTY; Otsego County Sheriff's Office; Deputy E. Lincoln, in her individual and
official capacities; and Deputy J. Smith, in his individual and official capacities, Defendants.
3:25-CV-00673 (AMN/ML)
|
Signed October 20, 2025
Attorneys and Law Firms
JANEL WHITBECK, 225 Main Street, Franklin, New York 13775, Plaintiff pro se.
ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On May 27, 2025, Plaintiff pro se Janel Whitbeck commenced this action and asserted claims of false arrest and deliberate
indifference to medical needs pursuant to 42 U.S.C. § 1983, as well as claims pursuant to the Americans with Disabilities Act
(“ADA”) and the New York State Andrew Kearse Act, N.Y. Exec. Law § 837-u, against Otsego County, the Otsego County
Sheriff's Office, and Otsego County Sheriff's Deputies Lincoln and Smith in their individual and official capacities. Dkt. No. 1.
Plaintiff did not pay the filing fee and sought leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. This matter was referred to
Magistrate Judge Miroslav Lovric, who, on September 24, 2025, granted Plaintiff's motion for leave to proceed IFP. Dkt. No. 5.
Also on September 24, 2025, after conducting an initial review of the Complaint pursuant to 28 U.S.C. § 1915(e), Magistrate
Judge Lovric issued an Order and Report-Recommendation recommending that (i) Plaintiff's false arrest and deliberate
indifference claims be permitted to proceed against Otsego County and Defendants Lincoln and Smith in their individual and
official capacities; (ii) Plaintiff's ADA claim be permitted to proceed against Otsego County and Defendants Lincoln and Smith
in their official capacities; and (iii) Plaintiff's claims under the New York State Andrew Kearse Act and Plaintiff's claims against
the Otsego County Sheriff's Office be dismissed with prejudice. Dkt. No. 5 (“Report-Recommendation”). Magistrate Judge
Lovric advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen days within which to file written objections and that
failure to object to the Report-Recommendation within fourteen days would preclude appellate review. Dkt. No. 5 at 14. 1
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system.
For the reasons set forth below, the Court adopts the Report-Recommendation in its entirety, except that it dismisses Plaintiff's
false arrest and deliberate indifference claims against Defendants Lincoln and Smith in their official capacities with prejudice
and without leave to amend and permits Plaintiff's ADA claim to proceed against Defendants Lincoln and Smith in their official
capacities only to the extent Plaintiff seeks prospective injunctive relief.
II. BACKGROUND
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On March 1, 2025, Defendants Lincoln and Smith arrested Plaintiff for petit larceny. Dkt. No. 5 at 2 (citing Dkt. No. 1 at 2).
Plaintiff alleges that, shortly before her arrest, she experienced a medical emergency while attempting to complete a transaction
at Walmart. Id. (citing Dkt. No. 1 at 2). Specifically, Plaintiff alleges that her trained service dog alerted her to the onset of a
transient ischemic attack (referred to as “TIA”), and when she attempted to return to her vehicle to access medication, Walmart
staff stopped her, took her to the security office, and summoned law enforcement. Id. (citing Dkt. No. 1 at 2).
Plaintiff alleges that she was visibly impaired; she was wearing a medical alert bracelet, her speech was garbled, and her gait
was unsteady. Id. (citing Dkt. No. 1 at 2). Plaintiff alleges that during Defendant Lincoln's search of Plaintiff she observed her
medical alert bracelet. Id. (citing Dkt. No. 1 at 2). Plaintiff further alleges that Defendant Smith physically steadied her, which
indicated his awareness of Plaintiff's impairment. Id. (citing Dkt. No. 1 at 2). Defendants Lincoln and Smith then allegedly
proceeded to book, fingerprint, and photograph Plaintiff while she was exhibiting a facial droop consistent with a TIA. Id.
(citing Dkt. No. 1 at 2).
III. STANDARD OF REVIEW
*2 This Court reviews de novo those portions of a magistrate judge's report-recommendation that have been properly preserved
with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no
specific objections have been filed, this Court reviews a magistrate judge's report-recommendation for clear error. See Petersen,
2 F. Supp. 3d at 228 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). Similarly, if an objection
simply rehashes arguments originally presented to the magistrate judge, this Court reviews the relevant portions of the report-
recommendation for clear error. See Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). “When performing such a ‘clear
error’ review, ‘the court need only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’ ” Dezarea W. v. Comm'r of Soc. Sec., No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023)
(quoting Canady v. Comm'r of Soc. Sec., No. 17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)).
“[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings
drafted by lawyers.’ ” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (additional citations omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances
to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a pro se party's objections to a Report and Recommendation
must be specific and clearly aimed at particular findings in the magistrate's proposal ....” Machicote v. Ercole, No. 06-cv-13320,
2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 22-cv-567, 2022 WL
16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
IV. DISCUSSION
Because neither party has filed any objections to the Report-Recommendation, the Court reviews the Report-Recommendation
for clear error.
First, Magistrate Judge Lovric recommended that Plaintiff's claims against the Otsego County Sheriff's Office be dismissed
with prejudice. Dkt. No. 5 at 6. Specifically, Magistrate Judge Lovric noted that a municipal department “does not have the
capacity to be sued as an entity separate from the municipality in which it is located.” Id. at 5 (quoting White v. Syracuse Police
Dep't, No. 18-cv-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019)). Under New York law, “a department of a municipal
entity is merely a subdivision of the municipality and has no separate legal existence.” Hoisington v. County of Sullivan, 55
F. Supp. 2d 212, 214 (S.D.N.Y. 1999); see also Dudley v. Hochul, No. 24-cv-0048, 2024 WL 1906594, at *9 (N.D.N.Y. May
1, 2024) (dismissing claims against the Onondaga County Sheriff's Office because it was not amenable to suit), report and
recommendation adopted, 2024 WL 2399913 (N.D.N.Y. May 23, 2024).
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Second, Magistrate Judge Lovric addressed Plaintiff's claim of false arrest under the Fourth Amendment against Defendants
Lincoln and Smith in their individual and official capacities. Dkt. No. 5 at 6-7. Magistrate Judge Lovric noted that, when
analyzing constitutional claims of false arrest, courts generally look to the law of the state where the arrest occurred. Id. at 6
(citing Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007)). “To establish a claim of false arrest under New York law,
the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3)
the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Id. (internal brackets
omitted) (quoting Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975)). Confinement is otherwise privileged when officers “have
knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable
caution in the belief that the person to be arrested has committed or is committing a crime.” Id. at 6-7 (quoting Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996)). Here, Plaintiff alleges that she experienced a TIA while attempting to complete a transaction
at Walmart, and in the course of her attempt to access medication in her car, Walmart staff summoned law enforcement. Dkt. No.
5 at 2 (citing Dkt. No. 1 at 2). Plaintiff further alleges that despite their awareness of her impairment, Defendants Lincoln and
Smith proceeded to arrest her. Id. Magistrate Judge Lovric recommended that Plaintiff's claim for false arrest against Defendants
Lincoln and Smith proceed. Id. at 7.
*3 Third, Magistrate Judge Lovric addressed Plaintiff's claim of deliberate indifference to medical needs under the Fourteenth
Amendment against Defendants Lincoln and Smith in their individual and official capacities. Id. at 7-8. Courts evaluate claims
of deliberate indifference that arise during the course of a pretrial arrest and detainment under the Due Process Clause of the
Fourteenth Amendment. Mills v. Fenger, 216 F. App'x 7, 10 (2d Cir. 2006) (citing Weyant, 101 F.3d at 856). Magistrate Judge
Lovric noted that a plaintiff must demonstrate that (i) an official denied plaintiff the treatment needed to remedy a serious
medical condition, and (ii) the official denied such treatment because of his deliberate indifference to that need. Dkt. No. 5
at 7-8 (citing Mills, 216 F. App'x at 10). Here, among other things, Plaintiff alleges that in connection with her arrest for
petit larceny, Defendants proceeded to book Plaintiff after she explained that she was experiencing a TIA and while she was
exhibiting symptoms of a TIA. See id. at 2 (citing Dkt. No. 1 at 2). Magistrate Judge Lovric recommended that Plaintiff's medical
indifference claim proceed against Defendants Lincoln and Smith. See id. at 8. 2
2 To the extent that Plaintiff brings her false arrest and deliberate indifference claims against Defendants Lincoln and
Smith in their official capacities, “this District has held that [Section 1983] claims against municipal officers in their
official capacities are really claims against the municipality and, thus, are redundant when the municipality is also
named as a defendant.” Sears v. Carmichael, No. 18-cv-909, 2018 WL 7291417, at *2 (N.D.N.Y. Aug. 6, 2018)
(internal citations and quotations omitted), report and recommendation adopted, 2019 WL 587587 (N.D.N.Y. Feb. 13,
2019). Since Plaintiff also names Otsego County as a defendant in this action, Plaintiff's Section 1983 claims against
Defendants Lincoln and Smith in their official capacities are redundant of her claims against Otsego County. See, e.g.,
id. (recommending dismissal of plaintiff's Monell claims against the individual defendants in their official capacities
as “redundant,” given that plaintiff also named the town of Saranac Lake as a defendant). Accordingly, Plaintiff's false
arrest and deliberate indifference claims against Defendants Lincoln and Smith in their official capacities are dismissed
with prejudice and without leave to amend.
Fourth, Magistrate Judge Lovric addressed Plaintiff's claims of false arrest and deliberate indifference against Otsego County.
Dkt. No. 5 at 8-9. “[T]o hold a municipality liable under § 1983 for the unconstitutional actions of its employees, a plaintiff
is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to
(3) a denial of a constitutional right.” Adams v. City of Syracuse, No. 21-cv-650 (AMN/MJK), 2025 WL 2772081, at *28
(N.D.N.Y. Sept. 29, 2025) (internal brackets omitted) (quoting Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)). A
plaintiff can establish the existence of an official policy or custom through “(1) a formal policy endorsed by the municipality;
(2) actions directed by the government's authorized decisionmakers or those who establish governmental policy; (3) a persistent
and widespread practice that amounts to a custom of which policymakers must have been aware; or (4) a constitutional violation
resulting from policymakers’ failure to train municipal employees.” Deferio v. City of Syracuse, 770 F. App'x 587, 589-90 (2d
Cir. 2019) (internal quotations, citations, and brackets omitted). Here, Magistrate Judge Lovric recommended that Plaintiff's
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claims against Otsego County, in which she alleges that Otsego County failed to train or supervise Defendants Lincoln and
Smith, be permitted to proceed. Dkt. No. 5 at 9.
Fifth, Magistrate Judge Lovric addressed Plaintiff's claim alleging a violation of Title II of the ADA. Id. at 9-11. 3 “To establish
a violation of the ADA, the plaintiff must demonstrate (1) that she is a ‘qualified individual’ with a disability; (2) that the
defendants are subject to the ADA; and (3) that she was denied the opportunity to participate in or benefit from the defendant's
services, programs, or activities, or was otherwise discriminated against by the defendant by reason of her disability.” Id. at
10 (quoting Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196-97 (2d Cir. 2014)). Magistrate
Judge Lovric found that Otsego County is a public entity that is subject to the ADA, and Plaintiff appeared to be a qualified
individual with a disability who plausibly alleged that Defendants Lincoln and Smith wrongfully arrested her because Plaintiff's
actions in response to her disability were misinterpreted as criminal activity. Id. Magistrate Judge Lovric noted that Plaintiff
alleged that Defendants Lincoln and Smith observed her in a disoriented state, wearing her medical alert bracelet, and she
informed Defendants that she suffers from the risk of a TIA. Id. at 10-11. Accordingly, Magistrate Judge Lovric recommended
that Plaintiff's ADA claim be permitted to proceed against Otsego County and Defendants Lincoln and Smith in their official
capacities. Id. at 11. 4
3 Magistrate Judge Lovric recommended that Plaintiff's ADA claim proceed against Defendants Lincoln and Smith only
in their official capacities because Title II of the ADA does not permit individual capacity suits against state officials.
Dkt. No. 5 at 11 n.6 (quoting Hill v. LaClair, No. 20-cv-441, 2020 WL 2404771, at *7 (N.D.N.Y. May 11, 2020)).
4 To the extent that Plaintiff's ADA claim against Defendants Lincoln and Smith in their official capacities seeks
prospective injunctive relief, such claim may proceed. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (holding that
Title II ADA suits for prospective injunctive relief may proceed against individual officers in their official capacities).
However, Plaintiff's ADA claim against Defendants Lincoln and Smith in their official capacities seeking monetary
relief is redundant of Plaintiff's ADA claim against Otsego County. See Johnson v. New York State Police, 659 F. Supp.
3d 237, 254 (N.D.N.Y. 2023). Accordingly, Plaintiff's ADA claim is permitted to proceed against Defendants Lincoln
and Smith in their official capacities only to the extent it seeks prospective injunctive relief.
*4 Sixth, Magistrate Judge Lovric addressed Plaintiff's claims pursuant to the New York State Andrew Kearse Act. Id. at
11-12. Magistrate Judge Lovric noted that the New York State Andrew Kearse Act is an unenacted New York State Assembly
Bill that imposes criminal liability for failure to obtain medical care for a person in custody displaying medical distress. Id. at
11. 5 Magistrate Judge Lovric further noted that there is no private right of action to enforce federal or state criminal statutes. See
id. at 12 (citing, inter alia, Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). Thus, Magistrate Judge Lovric recommended
that this claim be dismissed for failure to state a claim without leave to amend.
5 As of October 16, 2025, the New York State Andrew Kearse Act is in committee with the New York State Assembly.
See New York State Senate, Assembly Bill A1745, https://www.nysenate.gov/legislation/bills/2021/A1745.
Having reviewed the Report-Recommendation for clear error and considered Magistrate Judge Lovric's findings as to each
claim, the Court adopts the Report-Recommendation in its entirety, except that it dismisses Plaintiff's false arrest and deliberate
indifference claims against Defendants Lincoln and Smith in their official capacities with prejudice and without leave to amend
and permits Plaintiff's ADA claim to proceed against Defendants Lincoln and Smith in their official capacities only to the extent
that Plaintiff seeks prospective injunctive relief.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 5, is ADOPTED in its entirety except as noted above; and the Court
further
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ORDERS that the Otsego County Sheriff's Office is DISMISSED from this case with prejudice; and the Court further
ORDERS that Plaintiff's claims pursuant to the New York State Andrew Kearse Act be DISMISSED with prejudice and
without leave to amend; and the Court further
ORDERS that Plaintiff's claims of false arrest and deliberate indifference against Otsego County and Defendants Lincoln and
Smith in their individual capacities SURVIVE initial review and require a response; and the Court further
ORDERS that Plaintiff's false arrest and deliberate indifference claims against Defendants Lincoln and Smith in their official
capacities be DISMISSED with prejudice and without leave to amend; and the Court further
ORDERS that Plaintiff's ADA claim against Otsego County SURVIVES initial review and requires a response; and the
Court further
ORDERS that Plaintiff's ADA claim against Defendants Lincoln and Smith in their official capacities SURVIVES initial
review and requires a response to the extent that Plaintiff seeks prospective injunctive relief under the ADA; and the Court
further
ORDERS that the Clerk shall issue summonses and General Order # 25 and forward them, along with copies of the Complaint,
to the United States Marshal for service upon the Defendants; and the Court further
ORDERS that all pleadings, motions and other documents relating to this action must bear the case number assigned to this
action and be filed with the Clerk of the United States District Court. Plaintiff must comply with requests by the Clerk's Office
for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Norther District
of New York in filing motions; motions will be decided on submitted papers, without oral argument, unless otherwise ordered
by the Court. Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any
changes in his address; his failure to do so may result in the dismissal of this action.
*5 ORDERS that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
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2024 WL 3460788
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Annamay SHIBLEY, et al., Plaintiffs,
v.
Jennifer BIXLEROND, et al., Defendants.
6:24-cv-0722 (BKS/TWD)
|
Signed July 16, 2024
Attorneys and Law Firms
ANNAMAY SHIBLEY, Plaintiff, pro se, 2452 Broad Street, Apt. 3, Frankfort, NY 13340.
CHRISTOPHER WHEELER, SR., Plaintiff, pro se, 2452 Broad Street, Apt. 3, Frankfort, NY 13340.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
*1 The Clerk has sent to the undersigned for review a complaint submitted by pro se plaintiffs Annamay Shibley and
Christopher Wheeler, Sr. (“Plaintiffs”), together with two applications to proceed in forma pauperis (“IFP”). Dkt. Nos. 1, 3, 4.
For the reasons set forth below, the Court recommends the complaint be dismissed.
II. IFP APPLICATIONS
Plaintiffs have not paid the statutory filing fee for this action and seek leave to proceed IFP. Dkt. Nos. 3, 4. Upon review, the
Plaintiffs’ IFP applications demonstrate economic need. See id. Therefore, Plaintiffs are granted permission to proceed IFP.
III. COMPLAINT
Plaintiffs commenced the instant action utilizing the Court's form complaint for civil rights actions, asserting claims under 42
U.S.C. § 1983. See Dkt. No. 1 at 3. 1 The complaint lists four defendants: “Jennifer bixlerond” of the Oneida County Sheriff's
Department; 2 the Department of Social Services (“DSS”); the Mohawk Valley Community Action Agency; and Heidi Garber.
Id. at 2-3.
1 Citations to Plaintiffs’ submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing
system. Unless otherwise indicated, 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 The Court notes, while Plaintiffs listed “Jennifer bixlerond” as “Defendant No. 1” on the second page of the complaint,
see Dkt. No. 1 at 2, in a later portion of the same document, see Dkt. No. 1 at 4, and on both IFP applications, see
generally, Dkt. Nos. 3, 4, Plaintiffs appear to refer to the same individual as “Jennifer Bixler.”
Plaintiff Annamay Shibley states, 3 on February 2, 2021, “2 of my children were taken by CPS.” Id. at 8. CPS accused her of
“abusing my children even though the babysitter named Heidi garber was the one that abused my children and amidded it to
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CPS.” Id. “CPS wanted the babysitter my boyfriend and myself to take a lie detector test.” Id. Garber “refused to take a test”
but Shibley and her boyfriend agreed to take the test at the Oneida County Jail. Id. After she completed the test,
they said I failed the test but when the officer showed me the test I did not see where I failed the test. But
they still arrested me and I spent one night in jail but when I went to court the next day the judge released
me and told me that there was not enough evidence to prove I did anything wrong.
Id. She later learned “the charges were dismissed and sealed.” Id.
3 As discussed in greater detail below, the complaint is signed only by Annamay Shibley. See Dkt. No. 1 at 7.
Shibley avers “CPS did not have a warrant to remove my children from my care. I did not get a court date for the removal
order of my children until a week and a half after my children were already removed.” Id. She states she has “done everything
that the cps workers wanted me to do” including “mental health councling, parenting class, anger management class, domestic
violence classes and also find better housing for myself and my children.” Id. Plaintiff also “had 2 more children” after the
first two were removed from her home “and they did not have a warrant to remove them children both from St. Luke's hospital
the days that they were born.” Id.
*2 She has not abused any of her children, and seeks to have the children returned to her home, arguing “CPS should have
never taken my children after they got the confession out of the babysitter.” Id. at 9. Further, she “would like the babysitter
held accountable for her actions.” Id. Additionally, in October of 2023, “Laurie Ellis who used to work for Onidea County
dss” entered Shibley's residence “without knocking and also after numerous times I told her she was not welcome into my
house.” Id. Plaintiff “had to call the police and make a police report on her once I made a police report she took herself off
of my family court case.” Id.
Shibley “was suppost to have home visits back in 2022 and they took them away all because someone lied and said that I took
inappropite pictures of one of my children during a visit and also abused my child during a visit but yet that never happened.”
Id. The visit during which the alleged abuse occurred “was conducted at The House of good Shepard and I had many staff
in and out of the room that cps tried to say it happened at.” Id. Additionally, DSS did not have custody of the child Plaintiff
allegedly abused at the time, as the child's biological father had custody. Id. “He had custody and then abandoned her and left
her with his ex girlfriend. I then fought like no tomorrow to have the foster parents gain custody of her so she was back with
her siblings and I now feel like that was a big mistake.” Id.
From the day Shibley's four children entered foster care, the foster parents allowed the children to be hurt and have failed to
contact her “until days after or not being fulted for it.” Id. For example, one of the children “was bitten by a dog and could have
been blind and they still have the dog, they want to get rid of the dog and that they have the dog locked up away from the kids.”
Id. However, it is “very unlikely that they are able to keep that dog away far from 11 kids all under 10 years old!” Id.
“DSS has not done everything to make sure I can get my children back, I think there goal for all children around the world is to
human traffic them. They have been wanting to terminate my rights from the day they wrongfully took my children!” Id. at 10.
Furthermore, “it's wrong that Christopher Wheeler, who has raised” two of the children from August 23, 2019, until February
24, 2021, “with out a problem is not allowed to see or talk to them just because he is a registered sex offender but yet cps had
no problems with my children being in his care from Feb 11th of 2020 til they were removed.” Id. “We had several cps cases
called on us between that time and IF cps believed they were in danger why didn't cps remove the kids then.” Id.
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Plaintiff seeks to “have the phone records from cps and the House of good shepard pulled and listened to.” Id. She states “I
just want to be able to get my children back and I want to get paid for my pain and suffering I have been through. I have ptsd
from all of this nonsense!” Id.
IV. 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).
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 Denton v. Hernandez, 504 U.S. 25, 33
(1992) (holding “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the
wholly incredible”); Livingston, 141 F.3d at 437 (“[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.”).
*3 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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id.
It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(internal quotation marks and citations omitted); see also Fed. R. Civ. P. 8(a)(2).
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
A. Section 1983
Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983, which “establishes a cause of action for ‘the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” German v. Fed. Home Loan
Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y.) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42
U.S.C. § 1983)). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation
of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471
U.S. 808, 816 (1985)).
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To state a valid claim under § 1983, a plaintiff must allege 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. Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). Even affording the complaint a liberal construction,
Plaintiffs have failed to state a claim under § 1983 against any of the named defendants.
1. Oneida County Sheriff Jennifer Bixlerond
The first defendant identified in the Plaintiffs’ complaint is Jennifer Bixlerond. Dkt. No. 1 at 2. Plaintiffs indicate Bixlerond is
employed by the Oneida County Sheriff's Department and they seek to hold her liable in her official capacity. See id. Plaintiffs
state “Jennifer Bixler was personally involved in the wrongful actions of” two of Shibley's children “being removed from my
care.” Id. at 4.
“[A] § 1983 suit against a municipal officer in his official capacity is treated as an action against the municipality itself.” Coon
v. Town of Springfield., 404 F.3d 683, 687 (2d Cir. 2005); see also, e.g., Polinski v. Oneida Cnty. Sheriff, No. 6:23-CV-0316
(DNH/ML), 2023 WL 2988753, at *5 (N.D.N.Y. Apr. 18, 2023) (“A claim against [an] Oneida County Sheriff in his official
capacity, is essentially a suit against the Oneida County Sheriff's Department.”) (citing Kentucky v. Graham, 473 U.S. 159,
166 (1985); Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007)), report and recommendation adopted, 2023 WL 3344060
(N.D.N.Y. May 10, 2023), appeal dismissed, No. 23-867, 2023 WL 8357375 (2d Cir. Oct. 12, 2023). However, a municipality
such as Oneida County may be “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 v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)) (additional citation omitted).
*4 “The policy or custom need not be memorialized in a specific rule or regulation,” Kern v. City of Rochester, 93 F.3d 38, 44
(2d Cir. 1996) (citations omitted), and “may be pronounced or tacit and reflected in either action or inaction.” Cash v. Cnty. of
Erie, 654 F.3d 324, 334 (2d Cir. 2011). Municipal liability under Monell may be established by way of:
(1) a policy formally adopted and endorsed by the municipality; (2) actions taken by policymaking
officials that caused the particular deprivation alleged; (3) practices by subordinate officials that are not
expressly authorized but are so widespread and consistent that policymakers must have been aware of
them; or (4) a failure by policymakers to train or supervise that amounts to “deliberate indifference” to the
rights of those who come into contact with the inadequately trained or supervised municipal employees.
Crawley v. City of Syracuse, 496 F. Supp. 3d 718, 729 (N.D.N.Y. 2020) (citing Deferio v. City of Syracuse, 770 F. App'x 587, 589
(2d Cir. 2019) (Summary Order)) (additional citation omitted). “Once a plaintiff has demonstrated the existence of a municipal
policy, a plaintiff must then establish a causal connection, or an ‘affirmative link,’ between the policy and the deprivation of his
constitutional rights.” Deferio, 770 F. App'x at 590 (citing Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
In the instant complaint, Plaintiffs have failed to identify any municipal policy or custom or allege facts plausibly suggesting
a basis for municipal liability. Therefore, they have failed to state a viable Monell claim, and dismissal as to Bixlerond is
warranted. See, e.g., Polinski, 2023 WL 2988753, at *5-7.
2. Department of Social Services, Grade B Supervisor
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The complaint next identifies as a defendant the “Department of Social Services.” Dkt. No. 1 at 2. Yet, “Grade b Supervisor” is
listed as the department's “Job or Title” and the complaint references “Grade B supervisor ... Laurie Ellis.” Id. at 4; see also id.
at 9. Irrespective of whether Plaintiffs intend to pursue a claim against the Oneida County DSS or Ellis in her official capacity,
however, the complaint fails to state a viable claim.
“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate
legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit ... and no
claims lie directly against the Department.” Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999) (citations
omitted). Further, as explained above, Plaintiffs have failed to allege facts plausibly suggesting a basis for municipal liability as
to Oneida County. See supra Section V.A.1. Therefore, to the extent Plaintiffs intend to state a claim against the Oneida County
DSS, dismissal is warranted. See, e.g., White v. Syracuse Police Dep't, No. 5:18-CV-1471 (GTS/DEP), 2019 WL 981850, at
*3 (N.D.N.Y. Jan. 7, 2019) (“I would ordinarily recommend that, for the sake of judicial efficiency, the court substitute the ...
[municipality] in place of the” municipal department, however, because the “plaintiff's complaint contains no factual allegations
that would support a Monell claim against the” municipality, “I recommend dismissal of plaintiff's claims asserted against the”
department.), report and recommendation adopted, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019).
*5 Alternatively, to the extent Plaintiffs intended to state a claim against Oneida County DSS Supervisor Laurie Ellis in her
official capacity, as explained above, “a § 1983 suit against a municipal officer in his official capacity is treated as an action
against the municipality itself.” Coon, 404 F.3d at 687. Therefore, the Plaintiffs’ failure to identify a basis for municipal liability
as to Oneida County also precludes a viable claim against the County DSS Supervisor in her official capacity. See supra Section
V.A.1; see also, e.g., Welch v. Fitzgerald, No. 5:18-CV-0461 (MAD/ATB), 2018 WL 6173796, at *6 (N.D.N.Y. May 16, 2018),
report and recommendation adopted, 2018 WL 4795759 (N.D.N.Y. Oct. 4, 2018). Additionally, Laurie Ellis “is not named or
identified in the caption or list of parties” as a defendant, therefore, any claim against her in her individual or official capacity
would be subject to dismissal for failure to state a claim. Burrell v. DOCCS, 655 F. Supp. 3d 112, 125 (N.D.N.Y. 2023).
3. Mohawk Valley Community Action Agency
The third defendant listed in the complaint is the Mohawk Valley Community Action Agency daycare center. Dkt. No. 1 at 3.
Plaintiffs seek to hold this defendant liable in its official capacity. See id. However, Plaintiffs have not alleged the entity is a
state actor for purposes of § 1983, nor have they asserted any facts which would permit the Court to draw that inference. See
id. at 3-10. Indeed, the sole factual assertion concerning this defendant is that “[t]here were multiple times that Mohawk Valley
Community Action Agency were involved in calling CPS to have my children removed.” Id. at 4. Accordingly, the undersigned
recommends dismissal of the complaint as to the Mohawk Valley Community Action Agency. See Fabrikant v. French, 691
F.3d 193, 206 (2d Cir. 2012) (explaining, “[b]ecause the United States Constitution regulates only the Government, not private
parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct
constitutes state action.”) (citation omitted); see also, e.g., Burgdorf v. Betsy Ross Nursing & Rehab. Ctr. Inc., No. 6:22-CV-0987
(DNH/ATB), 2023 WL 112092, at *5 (N.D.N.Y. Jan. 5, 2023) (recommending dismissal of § 1983 claims against three entities
where the plaintiff had “not alleged any facts suggesting that these entities are state actors under any of the aforementioned
exceptions, or describing how their actions are otherwise fairly attributable to the state.”) (internal quotations omitted), report
and recommendation adopted, 2023 WL 418045 (N.D.N.Y. Jan. 26, 2023).
4. Heidi Garber
The final defendant listed in the complaint is Heidi Garber, in her individual capacity. Dkt. No. 1 at 3. Plaintiffs state Garber
worked as a babysitter, see id., and allege she “abused” two of the children, admitted such conduct to Plaintiff(s), and “refused
to take” a “lie detector test” regarding the incident, id. at 5, 8. However, Plaintiffs do not assert any facts from which the Court
could conclude Garber is a state actor or that her alleged actions are fairly attributable to the state. Therefore, the undersigned
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recommends dismissal of the complaint as to Heidi Garber. See supra Section V.A.1; see also Basile v. Connolly, 538 F. App'x 5,
7 (2d Cir. 2013) (Summary Order) (“private individuals ... cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation
that they acted under color of state law.”).
B. Younger Abstention, 4 Rooker-Feldman, 5 and the Domestic Relations Exception
4 See generally, Younger v. Harris, 401 U.S. 37 (1971).
5 See generally, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923).
*6 Next, from what the undersigned can glean, Plaintiffs seek both monetary damages and custody of Shibley's four children.
See Dkt. No. 1 at 6, 8-10. Although the nature of Plaintiffs’ complaint makes it difficult to determine which of the following
doctrines apply, based on the relief sought, this Court likely lacks jurisdiction to hear and/or should abstain from hearing the
Plaintiffs’ claims.
“[I]n the event the underlying family court proceedings are pending, such claims are likely barred by the Younger abstention
doctrine.” Walker v. O'Connor, No. 1:22-CV-0581 (DNH/TWD), 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022)
(citing Younger v. Harris, 401 U.S. 37 (1971)) (additional citation omitted), report and recommendation adopted, 2022 WL
2805462 (N.D.N.Y. July 18, 2022). “Younger generally requires federal courts to abstain from taking jurisdiction over federal
constitutional claims that involve or call into question ongoing state proceedings.” Diamond “D” Const. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (citing Younger, 401 U.S. at 43-44). “Younger abstention is required when three conditions
are met: (1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the
state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.”
Id. (citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)).
Courts in this circuit have found these conditions to be satisfied in matters involving issues of child custody. See, e.g., Walker,
2022 WL 2341420, at *6 (collecting cases applying the Younger abstention doctrine in the context of child custody disputes).
Therefore, to the extent Plaintiffs’ claims involve a “custody dispute [that] is continuing in New York State Family Court, this
Court should abstain from interfering with that process.” Id.; see also Terpening v. McGinty, No. 1:21-CV-1215 (GTS/CFH),
2022 WL 17418268, at *6 (N.D.N.Y. Oct. 5, 2022) (“It is unclear whether there are pending family court proceedings in which
plaintiff seeks the Court's intervention .... However, ‘the heart of this case is a child custody dispute, a matter rightfully reserved
for state courts.’ ”) (citing McKnight v. Middleton, 699 F. Supp. 2d 507, 520 (E.D.N.Y. 2010), aff'd, 434 F. App'x 32 (2d Cir.
2011)) (additional citation omitted), report and recommendation adopted, 2022 WL 17415121 (N.D.N.Y. Dec. 5, 2022).
Alternatively, to the extent the Plaintiffs’ claims concern a state court proceeding which has concluded, such claims are likely
barred by the Rooker-Feldman doctrine. See, e.g., Amato v. McGinty, No. 1:21-CV-0860 (GLS/TWD), 2022 WL 226798, at
*10 (N.D.N.Y. Jan. 26, 2022); Walker, 2022 WL 2341420, at *6. “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.” Porter v. Nasci, No. 5:24-CV-0033 (GTS/TWD), 2024 WL
1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005))
(additional citations omitted), report and recommendation adopted, 2024 WL 3158645 (N.D.N.Y. June 25, 2024). “The doctrine
also bars the federal court from considering claims that are ‘inextricably intertwined’ with a prior state court determination.”
Amato, 2022 WL 226798, at *10 (citing Fernandez v. Turetsky, No. 12-CV-4092, 2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7,
2014), aff'd, 645 F. App'x 103 (2d Cir. 2016)) (additional citation omitted). 6
6 See also, Amato, 2022 WL 226798, at *11 (explaining, “[t]he Rooker-Feldman doctrine applies where the federal court
plaintiff: (1) lost in state court, (2) complains of injuries caused by the state court judgment, (3) invites the district court
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to review and reject the state court judgment, and (4) commenced the district court proceedings after the state court
judgment was rendered.”) (citing Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014)).
*7 “There is no question that Rooker-Feldman bars ... challenges to” a state “family court's decisions regarding child
custody ....” Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir. 2002). Accordingly, to the extent Plaintiffs seek, in effect, an
appeal from an unfavorable state court custody judgment, any such claim is barred. See Dorce v. City of New York, 2 F.4th 82,
101 (2d Cir. 2021); Walker, 2022 WL 2341420, at *6.
Furthermore, under the domestic relations exception to the jurisdiction of federal courts, cases involving divorce, alimony,
and child custody remain outside of this Court's jurisdiction. See Marshall v. Marshall, 547 U.S. 293, 308 (2006); see also,
Cruz v. New York, No. 5:17-CV-0510 (BKS/TWD), 2017 WL 6021838, at *7 (N.D.N.Y. Oct. 27, 2017) (“Claims involving
child custody, support, and visitation brought in federal district court in this Circuit have regularly been dismissed for lack of
subject matter jurisdiction based on the domestic relations exception to federal jurisdiction.”) (collecting cases), report and
recommendation adopted, 2017 WL 6001833 (N.D.N.Y. Dec. 4, 2017). “Therefore, insofar as the present pro se Complaint
seeks the restoration of custody over her son, the federal courts lack jurisdiction to hear that claim, and it should be dismissed.”
Reeves v. Dep't of Children, Youth & Families, No. 1:20-CV-0987 (BKS/DJS), 2020 WL 5898866, at *3 (N.D.N.Y. Sept. 4,
2020) (citation omitted), report and recommendation adopted, 2020 WL 5891564 (N.D.N.Y. Oct. 5, 2020).
C. Additional Deficiencies
Finally, notwithstanding the aforementioned issues, the complaint suffers from additional defects. First, while Christopher
Wheeler, Sr., is listed as a plaintiff and has submitted an IFP application, he has not signed the compliant. See generally, Dkt.
Nos. 1, 4. Thus, the complaint violates Federal Rule of Civil Procedure 11(a) and Northern District of New York Local Rule
10.1(c)(2). See, e.g., Boyle v. Town of Hammond, No. 7:08-CV-1065 (TJM/GJD), 2008 WL 11416992, at *1 (N.D.N.Y. Oct. 24,
2008) (explaining, pro se plaintiff “James F. Boyle may not represent any of the other individuals that he lists as plaintiffs. Those
individuals could have signed the complaint and appeared as pro se plaintiffs, but James F. Boyle may not sign the complaint
for them or proceed on their behalf.”), aff'd, 375 F. App'x 85 (2d Cir. 2010); Goode v. Halderman, No. 3:11-CV-1461, 2011
WL 6122960, at *1 n.1 (D. Or. Dec. 9, 2011) (“the Complaint, while purportedly brought by [two individuals], was signed only
by [one of the plaintiffs] .... a pro se Plaintiff may not bring an action on behalf of another; instead, both pro se Plaintiffs must
sign every pleading or other document submitted to the Court.”) (citing Fed. R. Civ. P. 11(a)); N.D.N.Y. L.R. 10(c)(2).
The complaint also falls short of the pleading requirements set forth in Federal Rules 8 and 10. Rule 8 requires, 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). Each statement
must be “simple, concise, and direct,” Fed. R. Civ. P. 8(d)(1), and provide “fair notice of the claims asserted.” Whitfield v.
Johnson, 763 F. App'x 106, 107 (2d Cir. 2019) (Summary Order) (citing Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).
“A complaint may be dismissed under Rule 8 if it ‘is so confused, ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.’ ” Id. (quoting Simmons, 49 F.3d at 86 (2d Cir. 1995)).
*8 Moreover, Rule 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.” Fed. R. Civ. P. 10(b). The Rule's purpose is “to provide an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins, No. 1:22-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 fails to comply with basic pleading requirements presents too heavy a burden for defendants to craft a defense,
“provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims[,]” and may properly be dismissed.
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). Therefore, dismissal of the instant complaint on this basis would also
be appropriate. See, e.g., Griffith v. New York State, No. 5:23-CV-1266 (DNH/ML), 2024 WL 1641587, at *4 (N.D.N.Y. Mar.
20, 2024) (recommending “dismissal of the Complaint because it is not acceptable under Rules 8 and 10 of the Fed. R. Civ.
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P. and because Plaintiff's Section 1983 claim or claims against Defendant are entirely unclear.”), report and recommendation
adopted, No. 5:23-CV-1266, 2024 WL 1639856 (N.D.N.Y. Apr. 16, 2024).
D. Leave to Amend
Although the Court has serious doubts, it is not clear whether Plaintiffs could assert a cognizable cause of action against the
Defendants by way of a better pleading. Therefore, out of an abundance of caution and in deference to the Plaintiffs’ pro se
status, the undersigned recommends the action be dismissed without prejudice and with leave to amend. If Plaintiffs chose to
avail themselves of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on
which they rely to support any legal claims asserted, which Plaintiffs have a legal right to pursue, and over which this Court
has jurisdiction. Of course, Plaintiffs may also pursue their claims in state court if appropriate.
VI. CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiffs’ motions to proceed IFP (Dkt. Nos. 3, 4) are GRANTED, 7 and it is further
7 Although their applications to proceed IFP have been granted, Plaintiffs will still be required to pay fees that they may
incur in the future regarding this action, including, but not limited to, copying and/or witness fees.
RECOMMENDED that the complaint be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and
it is further
ORDERED that the Clerk provide to Plaintiffs 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. 8 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.
8 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).
*9 IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 3460788
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2024 WL 4203975
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Annamay SHIBLEY and Christopher Wheeler, Sr., Plaintiffs,
v.
Jennifer BIXLEROND, Department of Social Services, Mohawk
Valley Community Action Agency, and Heidi Garber., Defendants.
6:24-cv-722 (BKS/TWD)
|
Signed September 16, 2024
Attorneys and Law Firms
Plaintiffs pro se: Annamay Shibley, Christopher Wheeler, Sr., Frankfort, NY 13340.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
*1 Plaintiffs Annamay Shibley and Christopher Wheeler, Sr. commenced this proceeding under 42 U.S.C. § 1983, and
sought leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 3,4). This matter was referred to United States Magistrate
Judge Therese Wiley Dancks who, on July 16, 2024, granted Plaintiffs’ applications to proceed IFP, and issued a Report-
Recommendation, recommending that Plaintiffs’ complaint be dismissed without prejudice and with leave to amend. (Dkt. No.
10). Plaintiffs were informed that they had fourteen days within which to file written objections to the report under 28 U.S.C.
§ 636(b)(1), and that the failure to object to the report within fourteen days would preclude appellate review. (Id. at 12-13). On
July 29, 2024, the Court issued an Order giving Plaintiffs an extension of time to file objections to the Report-Recommendation.
(Dkt. No. 12). No objections to the Report-Recommendation have been filed.
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 found none, the Court adopts the Report-Recommendation in its entirety.
For these reasons, it is hereby
ORDERED that Magistrate Judge Dancks's Report-Recommendation (Dkt. No. 10) is ADOPTED; and it is further
ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is DISMISSED without prejudice and with leave to amend; and it is further
ORDERED that any amended complaint must be filed within thirty (30) days of the date of this Order. Any amended complaint
must be a complete pleading which will replace the current complaint in total; and it is further
ORDERED that if Plaintiffs file a timely amended complaint, it shall be referred to Magistrate Judge Dancks for review; and
if Plaintiffs fail to file a timely amended complaint, the Clerk is directed to close this case; and it is further
ORDERED that the Clerk serve a copy of this Order on Plaintiffs in accordance with the Local Rules.
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IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 4203975
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Katie MERRITT Plaintiff,
v.
Dr. Michael FARRELL; Guthrie Lourdes Hospital; Child Protective Services (CPS) Tioga;
Child Protective Services (CPS); Broome County NY Department of Social Services;
Honorable Judge Adam Schumacher; Children's Home Wyoming Conference Fostercare;
Children's Home Binghamton, NY; and Binghamton, NY Police Department, Defendants.
3:24-CV-01542 (GTS/ML)
|
Signed April 9, 2025
Attorneys and Law Firms
KATIE MERRITT, Plaintiff, Pro Se, P.O. Box 84, Vestal, New York 13851.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent a pro se complaint in the above captioned action together with an application to proceed in forma
pauperis and motion to file electronically, filed by Katie Merritt (“Plaintiff”), to this Court for review. (Dkt. Nos. 1, 2, 3, 5.)
For the reasons discussed below, I (1) grant Plaintiff's in forma pauperis application (Dkt. No. 2.), (2) deny Plaintiff's motion
to file electronically in ECF (Dkt. No. 3.), and (3) recommend that her Complaint be dismissed with partial leave to amend.
I. BACKGROUND
Construed as liberally 1 as possible, Plaintiff's Complaint alleges that Defendants Dr. Michael Farrell and Guthrie Lourdes
Hospital committed medical malpractice during and after the birth of Plaintiff's son; falsified medical records; provided false
information that led to the unlawful removal of her newborn son from her custody by Child Protective Services (“CPS”); and
failed to adequately respond to Plaintiff's complaints about her mistreatment and faulty medical care. (Dkt. No. 1 at 3-4, ¶¶
9, 10, 12, 15.)
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)).
Applying that same liberal construction, Plaintiff's constitutional claims, including alleged violations of the First and Fourteenth
Amendment, address two separate governmental actions: (1) the “emergency” removal of Plaintiff's newborn son from her
custody on October 1, 2024 “without lawful justification or due process,” by CPS and the Broome County Department of Social
Services and (2) the entry of a formal child custody order by Tioga County Family Court Judge Adam Schumacher on October
2, 2024 and its subsequent implementation by a foster agency that interfered with Plaintiff's ability to visit and care for her
son. (Id. at 3-5, ¶¶ 11, 12, 17-19, 21.)
Finally, Plaintiff alleges that Defendant Binghamton Police Department 2 violated her rights when she was “filmed by an officer
while in my hospital room,” who then failed to take her reports of misconduct and discrimination seriously. (Id. at 5, ¶ 22.)
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2 Plaintiff did not include the Binghamton Police Department as a defendant in the caption, but listed the agency as a
defendant in the body of the Complaint. (Dkt. No. 1 at 3.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
Plaintiff seeks “compensatory damages in the amount of $500,000” along with punitive damages, “injunctive relief against CPS
to prevent further violations,” and recovery of attorney's fees and costs. (Id. at 5-6, ¶¶ 1-5.)
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be
paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay”
the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). 3 After reviewing Plaintiff's IFP application, this Court
finds that she meets this standard. (Dkt. No. 2.) Therefore, Plaintiffs’ application to proceed IFP is granted. 4 (Id.)
3 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison
inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by
a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have
construed that section, however, as making IFP status available to any litigant who can meet the governing financial
criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534,
536 n.1 (S.D.N.Y. 2002).
4 Plaintiff is reminded that, although her IFP application has been granted, she is still required to pay fees that she may
incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
*2 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any
time if the court determines that ... the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In addition, the Court shall dismiss any action where the Complaint fails to allege facts plausibly suggesting subject matter
jurisdiction. Fed. R. Civ. P. 12(h)(3); see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1988) (holding that subject
matter jurisdiction is a “threshold question that must be resolved ... before proceeding to the merits.”); Humphrey v. Syracuse
Police Dep't, 758 F. App'x 205, 205-06 (2d Cir. 2019) (citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)) (“[b]efore
deciding any case on the merits, a district court must determine that it has subject matter jurisdiction over the matter.”); Koziel
v. City of Yonkers, 352 F. App'x 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint on
initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, No. 15-CV-5017, 2018 WL 4185705, at *5
(E.D.N.Y. Aug. 31, 2018) (dismissing on initial review, action challenging state court mortgage foreclosure judgment because
the court lacked jurisdiction); Eckert v. Schroeder, Joseph & Assoc., 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005) (citing Hughes
v. Patrolmen's Benevolent Ass'n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967 (1988))
(“[a] court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks
subject matter jurisdiction.”).
“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
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holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte
dismissal of a pro se complaint before the adverse party has been served and [the] parties ... have had an opportunity to respond.”
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his or her pleadings liberally. Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I
recommend that all causes of action be dismissed.
A. Barriers to Federal Subject Matter Jurisdiction over Child Custody Determinations
1. Rooker-Feldman Doctrine
“A court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject
matter jurisdiction.” Eckert v. Schroeder, Joseph & Associates, 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005) (citing Hughes v.
Patrolmen's Benevolent Ass'n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967 (1988)). The
Rooker-Feldman doctrine recognizes that, except for the Supreme Court, federal courts are not authorized to exercise appellate
jurisdiction over state-court judgments. McKithen v. Brown, 481 F.3d 89, 96 (2d Cir. 2007). Recognizing that many courts
have applied Rooker-Feldman in a manner which effectively expands its boundaries well beyond those envisioned in the two
seminal decisions, the Supreme Court emphasized the narrow limits of the rule in Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., observing that “[t]he Rooker-Feldman doctrine ... is confined to cases ... brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court
review and rejection of those judgments.” 544 U.S. 280, 283-284 (2005).
*3 “Where constitutional claims are not raised in the state court proceeding, there is no federal court subject matter jurisdiction
if the claim is ‘inextricably intertwined’ with the state court judgment.” McKithen, 481 F.3d at 96 (citing Dist. of Colombia
Court of Appeals v. Feldman, 420 U.S. 462, 483 (1983)). In the Second Circuit, there are four requirements for the application of
Rooker-Feldman doctrine: (1) the federal-court plaintiff must have lost in state court, (2) the plaintiff must complain of injuries
caused by a state-court judgment, (3) the plaintiff must invite district court review and rejection of that judgment, and (4) the
state-court judgment must have been rendered before the district court proceedings commenced. McKithen, 491 F.3d at 97. “A
plaintiff may not overcome the doctrine and seek a reversal of a state court judgment ‘simply by casting his complaint in the
form of a civil rights action.’ ” Rabinowitz v. New York, 329 F. Supp. 2d 373, 376 (E.D.N.Y. 2004) (quoting Ritter v. Ross, 992
F.2d 750, 754 (7th Cir. 1993)). “[A] federal suit complains of injury from a state-court judgment, even if it appears to complain
only of a third party's actions, when the third party's actions are produced by a state-court judgment and not simply ratified,
acquiesced in, or left unpunished by it.” McKithen, 481 F.3d at 97 (quoting Hoblock v. Albany Co. Bd. of Elections, 422 F.3d
77, 83 (2d Cir. 2005)).
Here, it is not readily apparent on the face of the Complaint that Rooker-Feldman bars jurisdiction in this case, despite Plaintiff's
claim for injunctive relief. Plaintiff's Complaint, filed on December 19, 2024, challenges actions leading up to and resulting
from an October 2, 2024 order from Tioga County Family Court Judge Adam Schumacher. (Dkt. No. 1 at 3, ¶ 13.) Subsequent
correspondence filed by Plaintiff indicates that this state court proceeding is ongoing. (Dkt. No. 5.) Therefore, the Rooker-
Feldman doctrine does not appear applicable to Plaintiff's Complaint. See Hunter v. McMahon, 75 F.4th 62, 70 (holding that
Rooker-Feldman does not apply because state proceedings were ongoing when plaintiff filed her complaint); E.R. Squibb &
Sons, Inc. v. Lloyd's and Cos., 241 F.3d 154, 163 (2d Cir. 2001) (noting that federal courts “assess [ ] jurisdiction ... as of the
moment the complaint was filed.”).
In addition, Rooker-Feldman never applies to “claims based on an opponent's misconduct that precedes the state court
proceeding, if the plaintiffs’ alleged injuries were merely ratified by the state-court judgments rather than caused by them.”
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Dorce v. City of New York, 2 F.4th 82, 104 (2d Cir. 2021) (emphasis in original) (quotation omitted). Here, at least some
of Plaintiff's constitutional claims seek damages arising from allegedly discriminatory or unconstitutional actions during an
emergency removal of child custody that preceded any state court judgment, and thus would not typically implicate Rooker-
Feldman. See Hunter, 75 F.4th at 62 (finding Rooker-Feldman did not apply to claim that agency took custody of child “under
falsified claims that an emergency existed,” even though state court “may have adjudicated the legitimacy of the conduct after
the fact.”); Schweitzer v. Crofton, 560 F. App'x 6, 9 (2d Cir. 2014) (“[Plaintiffs] challenge only the emergency removal of [the
child] ... That removal preceded any state court involvement. Accordingly, the Rooker–Feldman doctrine has no bearing here.”).
Therefore, this Court does not recommend dismissal on Rooker-Feldman grounds at this time.
2. Younger Abstention
Because Plaintiff's state court custody proceedings are still pending, this Court must also assess whether Plaintiff's request for
injunctive relief in this matter is barred by the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971). “Younger
abstention is required when three conditions are met: (1) there is an ongoing state proceeding; (2) an important state interest
is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial
review of the federal constitutional claims.” Morpurgo v. Incorp. Vill. of Sag Harbor, 327 F. App'x 284, 285 (2d Cir. 2009)
(citation omitted).
*4 As to the first condition, “Younger applies if the federal action involves ongoing: (1) ‘state criminal prosecutions’; (2) ‘civil
proceedings that are akin to criminal prosecutions’; or (3) civil proceedings that ‘implicate a State's interest in enforcing the
orders and judgments of its courts.’ ” Torres v. Gaines, 130 F. Supp. 3d 630, 636-37 (D. Conn. 2015) (quoting Sprint Commc'ns,
Inc. v. Jacobs, 571 U.S. 69, 72 (2013)). “Both the Supreme Court and the Second Circuit have observed that a ‘state-initiated
proceeding to gain custody of children ... falls within the second category.” Torres, 130 F. Supp. 3d at 636-37. (citing Davis
v. Baldwin, 594 F. App'x 49, 51 (2d Cir. 2015)). “If the federal action falls into one of these three categories, a Court may
then consider ... whether the state interest is vital and whether the state proceeding affords an adequate opportunity to raise the
constitutional claims.” Id. (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).
Turning to the additional conditions for application of the Younger abstention doctrine, it is well-settled that “a custody dispute ...
raises important state interests.” Amato v. McGinty, 17-CV-0593, 2017 WL 9487185, at *10 (N.D.N.Y. June 6, 2017) (Baxter,
M.J.) (citation and quotations omitted), report and recommendation adopted by, 2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017)
(D'Agostino, J.); Reinhardt v. Commonwealth of Mass. Dep't of Soc. Servs., 715 F. Supp. 1253, 1256 (S.D.N.Y. 1989) (noting
that “[q]uestions of family relations, especially when issues of custody and abuse are involved, are traditionally an area of state
concern”).
As discussed above, Plaintiff has indicated that the state family court proceedings related to child custody are still pending. Still,
it is not readily apparent at this juncture that Younger abstention applies to Plaintiff's narrowly drafted request for injunctive
relief. In addition to monetary damages, 5 Plaintiff seeks “[i]njunctive relief against CPS to prevent further violations.” (Dkt.
No. 1 at 6, ¶ 3.) Younger is typically inapplicable where “ “the plaintiff's requests for injunctive and declaratory relief may fairly
be read as applying only, at most, to the threat of future, not-yet-initiated proceedings.” See Shidagis v. Broome Cnty. D.S.S.,
No. 3:22-CV-1224 (BKS/ML), 2023 WL 2665461, at *2 (N.D.N.Y. Mar. 28, 2023) (quoting Sierra v. City of New York, 528 F.
Supp. 2d 465, 469 (S.D.N.Y. 2008)). Therefore, this Court does not recommend application of Younger abstention at this time.
5 Plaintiff's claims for monetary damages would not typically be barred for lack of subject matter jurisdiction under
Younger. See, e.g., Mulqueen., 2023 WL 4931679, at *4.
3. Domestic Relationship Exception/Abstention
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To the extent Plaintiff's claims are “aimed at changing the results of domestic proceedings, including orders of child custody,”
they are barred by the domestic relations exception to federal jurisdiction, which “divests the federal courts of power to issue
divorce, alimony and child custody decrees.” Rabinowitz, 329 F. Supp. 2d at 376 (citation omitted); see also McArthur v. Bell,
788 F. Supp. 706, 709 (E.D.N.Y. 1992) (finding that domestic relations exception applied where the plaintiff alleged violations
of his constitutional rights and property damage directly related to the child support determination, because “to decide the instant
case, this Court would be forced to re-examine and re-interpret all the evidence brought before the state court in the domestic
relations proceedings,” which “is the role of the Appellate Division ... not the role of this Court”). This doctrine recognizes that
“[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not
to the laws of the United States.” Deem v. DiMella-Deem, 941 F.3d 618, 624 (2d Cir. 2019) (quoting In re Burrus, 136 U.S.
586, 593–94, 10 S.Ct. 850, 34 L.Ed. 500 (1890)). “When a case calls for a federal court to interpret state domestic relations law
or ‘immerse itself in domestic relations matters,’ the court must abstain from proceeding with the case due to the state courts’
‘greater interest and expertise’ in that field.” Evans v. Adams, 714 F. Supp. 3d 119, 124 (E.D.N.Y. 2024) (quoting American
Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990)).
*5 “Federal courts do have jurisdiction to decide tort, contract or civil rights questions in cases arising out of a domestic
relations context when the underlying domestic relations issues are not in dispute.” McArthur, 788 F. Supp. at 708. Nevertheless,
abstention may be appropriate where the adjudication of a plaintiff's claim would require a court to “re-examine and re-interpret
all the evidence brought before the state court in the domestic relations proceedings.” Id. at 709; see also Schottel v. Kutyba,
No. 06-CV-1577, 2009 WL 230106, at *1 (2d Cir. 2009) (“Although we recognize that the domestic relations exception is very
narrow, ... a plaintiff cannot obtain federal jurisdiction merely by rewriting a domestic dispute as a tort claim for monetary
damages.” (internal quotations omitted)).
However, courts are not required to abstain where the primary issue is not “the state's adjudication of the domestic dispute.” See
Sochia v. Herkimer Cnty. Child Protective Servs., No. 6:24-CV-1068 (BKS/TWD), 2024 WL 4802839, at *8 (N.D.N.Y. Nov.
15, 2024). Here, while Plaintiff clearly disagrees with Judge Schumacher's October 2, 2024 decision and its implementation, her
Complaint broadly alleges violations stemming from the emergency custody removal that may be cognizable in federal court.
See Sochia, 2024 WL 4802839, at *8 (declining to abstain under domestic relations doctrine where plaintiff's abuse of process
claim did not seek to change the results of child custody proceedings). Thus, at this stage, this Court does not recommend
domestic relations abstention. See Mulqueen v. Herkimer Cnty. Child Protective Servs., No. 6:22-CV-1301 (TJM/ATB), 2023
WL 4931679, at *4 (N.D.N.Y. Aug. 2, 2023), report and recommendation adopted, No. 6:22-CV-1301 (BKS/MJK), 2024 WL
756833 (N.D.N.Y. Feb. 23, 2024) (declining to abstain under domestic relations doctrine with respect to plaintiffs’ monetary
damage claims, but noting the domestic relations abstention doctrine may ultimately bar plaintiff's claims for damages to the
extent they challenge the results of family court proceedings).
Thus, applying the lenient standard applicable to pro se complaints at this early stage of litigation, this Court finds no grounds
to recommend dismissal of Plaintiff's Complaint pursuant to the Rooker-Feldman doctrine, Younger abstention, or the domestic
relations exception/abstention.
B. Claims against Defendants Michael Farrell and Guthrie Lourdes Hospital.
Plaintiff's Complaint alleges that Defendant Farrell and Guthrie Lourdes Hospital are liable for violations of her federal
constitutional rights pursuant to 42 U.S.C. § 1983. This civil rights statute generally allows a plaintiff to seek relief against a
person who acts under color of state law to violate a plaintiff's federal constitutional rights. A prerequisite for any claim under
§ 1983 is that the defendant acted in a governmental capacity; that is, that the defendant was a “state actor” for purposes of
the challenged conduct. Put differently, a plaintiff may not maintain an action under § 1983 against a private party unless the
plaintiff shows that the private party's actions amounted to action that was undertaken in a state or governmental capacity. See
Fabrikant v. French, 691 F.3d 193, 206–09 (2d Cir. 2012).
A private entity acts under color of state law for purposes of § 1983 when (1) the State compelled the conduct [the ‘compulsion
test’], (2) there is a sufficiently close nexus between the State and the private conduct [the ‘close nexus test’ or ‘joint action
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test’], or (3) the private conduct consisted of activity that has traditionally been the exclusive prerogative of the State [the ‘public
function test’].” McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (brackets in original). Thus, “[t]he fundamental
question under each test is whether the private entity's challenged actions are fairly attributable to the state.” Id.
*6 None of the allegations in the Complaint suggest that Guthrie Lourdes Hospital or its employees, including Farrell, can
be considered a state actor under any of the applicable tests. This Court notes that the hospital is almost certainly licensed and
extensively regulated by New York State, but it is well-established that such regulation does not convert a private hospital or
its employees to a state actor. See Doe v. Hochul, No. 3:21-CV-1078, 2022 WL 446332, at *5 (N.D.N.Y. Feb. 14, 2022) (citing
Schlein v. Milford Hosp., 561 F.2d 427, 428 (2d Cir. 1977) (“The mere fact that [the State] regulates the ... private hospital does
not per se make the acts of the hospital ... the acts of the state.”)). Likewise, staff employed by a private hospital are private
individuals, not state actors amenable to suit under § 1983. See Allen v. Jordan, No. 3:22-CV-325 (JAM), 2022 WL 2065016,
at *3 (D. Conn. June 8, 2022). Although Plaintiff contends that reports by the Hospital or Dr. Farrell led to the removal of her
child, courts have consistently rejected the idea that such reporting, by itself, converts private entities or individuals into state
actors. Kurtz v. Hansell, No. 20 CIV. 3401 (PAE), 2021 WL 1143619, at *9 (S.D.N.Y. Mar. 24, 2021) (collecting cases).
Plaintiff also alleges physical abuse, discrimination, mistreatment, and medical malpractice during her hospitalization. Such
claims arise under state law, not federal law, “and a federal court generally will not have original jurisdiction over the claims
unless complete diversity exists.” See Urena v. Wolfson, No. 09-CV-1107, 2010 WL 5057208, at *13 (E.D.N.Y. Dec. 6, 2010)
(citation omitted); see also Wilson v. Neighborhood Restore Dev., 18-CV-1172, 2018 WL 2390143, at *3 (E.D.N.Y. May 18,
2018) (citing Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 182 (2d Cir. 2015)) (holding that “breach
of contract, breach of the warranty of habitability, negligence, personal injury and fraud ... are state law claims.”). The party
invoking diversity jurisdiction bears the burden of persuasion in establishing, by a preponderance of the evidence, an individual's
domicile at the time of the filing. See Dudla v. P.M. Veglio, LLC, No. 1:13-CV-033 (LEK/RFT), 2014 WL 799967, at *4
(N.D.N.Y. Feb. 28, 2014). A party's own statement of their residence is insufficient to establish their domicile. See Doe v. Rees,
No. 3:24-CV-00274 (MAD/ML), 2025 WL 834786, at *3 (N.D.N.Y. Mar. 17, 2025) (citing Leveraged Leasing Admin. Corp.
v. PacifiCorp Cap., Inc., 87 F.3d 44, 47 (2d Cir. 1996) (finding allegation that party is an Illinois resident insufficient to confer
diversity jurisdiction); see also Caren v. Collins, 689 F. App'x 75, 75 (2d Cir. 2017) (“Although the individual plaintiff and the
individual defendants are alleged to be residents of certain States, such an allegation is insufficient to plead citizenship.”).
Here, although Plaintiff describes herself as a resident of Pennsylvania, she has provided a New York mailing address to the
Court. (Dkt. No. 1 at 1; 2, ¶ 4.) In addition, the Complaint's description of Plaintiff's unsuccessful attempts to obtain housing
relief through the Broome County Department of Social Service suggests extended residency in New York. (Dkt. No. 1 at 4,
¶ 19.) Therefore, Plaintiff has insufficiently established diversity of citizenship to afford the Court subject matter jurisdiction
over her state law claims. 6
6 This Court notes that a recent unrelated decision in this District treated Plaintiff as a citizen of New York for diversity
purposes. See Merritt v. Snyder, No. 3:25-CV-61 (AMN/DJS), 2025 WL 719121, at *2 (N.D.N.Y. Mar. 6, 2025).
As a result, I recommend that all of Plaintiff's claims against Defendants Dr. Michael Farrell and Guthrie Lourdes Hospital be
dismissed for lack of subject matter jurisdiction.
C. Claims against Governmental Agencies/Departments
“Choices about marriage, family life, and the upbringing of children are among associational rights [the Supreme] Court has
ranked as ‘of basic importance in our society,’... rights sheltered by the Fourteenth Amendment against the State's unwarranted
usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (internal
citation omitted). Parents therefore have a constitutionally protected liberty interest in the care, custody and management of
their children. See Santosky v. Kramer, 455 U.S. 745, 753–54, (1982). As a general rule, therefore, before parents may be
deprived of the care, custody or management of their children without their consent, due process—ordinarily a court proceeding
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resulting in an order permitting removal—must be accorded to them. See Tenenbaum v. Williams, 193 F.3d 581, 593–94 (2d
Cir. 1999) (collecting cases).
*7 At the same time, however, the State has a profound interest in the welfare of the child. In emergency circumstances, a
child may be taken into custody by a responsible State official without court authorization or parental consent. See Hurlman v.
Rice, 927 F.2d 74, 80 (2d Cir. 1991) (citing examples). “Emergency circumstances mean circumstances in which the child is
immediately threatened with harm.” Id. “[T]he mere ‘possibility’ of danger” is not enough, or officers would always be justified
in seizing a child without a court order whenever there was suspicion that the child might have been abused. See id at 81. The law
thus seeks to strike a balance among the rights and interests of parents, children, and the State. See Tenenbaum, 193 F.3d at 594.
In alleging that the removal of her child violated her constitutional rights, Plaintiff has not named any individual state officials
or employees who were personally involved in the alleged deprivation of her constitutional rights as defendants. 7 Rather, she
named only municipal departments or their equivalent as defendants – “Child Protective Services (“CPS’) Tioga,” “Broome
County Department of Social Services,” “Binghamton N.Y. Police Department,” and “Children's Home Wyoming Conference
Fostercare” Therefore, this Court is limited to analyzing whether her Complaint adequately alleges a policy or custom of the
governmental entity that caused her § 1983 injury. Monell v. New York City. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978);
see also O'Kane v. Plainedge Union Free Sch. Dist., No. 16-CV-5693 (FBA/RL), 2019 WL 4575390, at *1 (E.D.N.Y. Sept. 20,
2019), aff'd, 827 F. App'x 141 (2d Cir. 2020) (Plaintiff “did not name any individual defendants on the § 1983 claims, which
is why the Court is limited to analyzing them under Monell.”).
7 Plaintiff's Complaint briefly references a Stacy Arroyos as a CPS worker who “lied on goal plan” and “lied to the court to
keep my baby from me.” (Dkt. No. 1 at 4 ¶ 14). The Complaint later mentions a “Maya” and a “Quienece” or “Quince”
who may be employees of the Children's Home. (Id. at 4-5 ¶ 21.)
Municipalities cannot be held liable under § 1983 merely because they employ someone who violated the plaintiff's
constitutional rights. See, e.g., Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). “To hold a municipality liable under §
1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Lucente v. Cty. of Suffolk,
980 F.3d 284, 297 (2d Cir. 2020) (internal quotation marks and alterations omitted). In other words, a plaintiff must demonstrate
that the municipality itself “ ‘was the moving force behind the alleged injury.’ ” Id. (quoting Roe v. City of Waterbury, 542
F.3d 31, 37 (2d Cir. 2008)). Isolated acts by individual employees justify municipal liability only 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 v. Town of E. Haven, 691 F.3d 72, 81
(2d Cir. 2012).
Official policy includes the decisions of a government's lawmakers, the acts of policymaking officials, and practices that are
so widespread as to “practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipal liability may
also be shown by establishing that a policymaking official ordered or ratified the employees’ actions either expressly or tacitly.
*8 In limited circumstances, municipal liability may be based upon a failure to properly train the municipality's employees.
Connick, 563 U.S. at 51 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985) (plurality opinion) (“[A] ‘policy’ of
‘inadequate training’ ” is “far more nebulous, and a good deal further removed from the constitutional violation, than was the
policy in Monell”)). To satisfy the statute, a municipality's failure to train its employees must amount to “ ‘deliberate indifference
to the rights of persons with whom the [untrained employees] come into contact.’ ” Id. (citing City of Canton, Ohio v. Harris,
489 U.S. 378, 388 (1989)).
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1. Child Protective Services Tioga 8
8 Plaintiff's pleadings include a proposed summons directed to the Tioga County Department of Social Services, rather
than Child Protective Services. (Dkt. No. 2-3.) The analysis in this section would apply equally to the Tioga County
Department of Social Services.
Plaintiff has named “Child Protective Services Tioga” as a defendant. 9 Interpreting such claims as one against the governmental
agency or department administering Child Protective Services in Tioga County, such claims would be subject to dismissal
because a § 1983 action against an agency of a municipality, such as a county child protective services unit, is not a viable
claim as it has no separate legal identity apart of the municipality itself. See Friedman v. N.Y.C. Admin. For Children's Servs.,
502 F. App'x 23, 27 n. 3 (2d Cir. 2012) (municipal agencies are not suable entities); Mulqueen, 2023 WL 4931679, at *6 n.4
(a § 1983 action against a municipal agency, such as a county child protective services unit, is not a viable claim as it has no
separate legal identity apart of the municipality itself.).
9 The caption of Plaintiff's Complaint lists “Child Protective Services (CPS) Tioga” as a Defendant, but the body of the
Complaint identifies “Child Protective Services (CPS), a state agency operating in New York” as an additional defendant.
(Dkt. No. 1 at 1, 2 ¶ 7.) In New York, state law establishes “in each county of the state” a child protective service “capable
of investigating reports of suspected child abuse and maltreatment” whose activities are overseen by a state agency, the
New York State Office of Children and Family Services (“OCFS”). See N.Y. Soc. Svcs. Law § 411; see also Finch v.
New York State Off. of Child. & Fam. Servs., 499 F. Supp. 2d 521, 525 (S.D.N.Y. 2007) (summarizing state statutory
framework). To the extent that Plaintiff seeks to bring this claim against OCFS rather than a county agency, such claim
would be barred by the Eleventh Amendment. Finch, 499 F. Supp.2d at 535.
Liberally construing Plaintiff's claims as ones against Tioga County, this Court would still recommend dismissal because
Plaintiff has not alleged any formal policy, widespread practice, or failure to provide adequate training that would satisfy the
pleading requirement under Monell. Instead, Plaintiff generally asserts that the county should be held liable for injuries allegedly
imposed by county employees. As discussed, a municipality may not be held liable under § 1983 “solely because it employs
a tortfeasor.” Cowan v. City of Mt. Vernon, 95 F. Supp. 3d 624, 643 (S.D.N.Y. 2015) (quoting Bd. of Cnty. Comm'rs v. Brown,
520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Moreover, “a custom or policy cannot be shown by pointing to
a single instance of unconstitutional conduct by a mere employee of the [municipality.]” Newton v. City of New York, 566 F.
Supp. 2d 256, 271 (S.D.N.Y. July 16, 2008); see also City of Oklahoma City, 471 U.S. at 823-24 (“Proof of a single incident
of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that
it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”).
Accordingly, plaintiff has failed to state a viable Monell claim against CPS.
2. Broome County NY Department of Social Services
*9 For the same reasons outlined above, this Court will also consider Plaintiff's claims against named defendant “Broome
County NY Department of Social Services” to be a suit against Broome County. Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d
212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the municipality
and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable
to suit and no claims lie directly against the Department.”). Applying the same legal analysis as above, this Court concludes that
Plaintiff has not asserted any policy, custom, widespread practice, or failure to provide adequate training that would support
Monell liability for Broome County arising from the alleged constitutional violations outlined by Plaintiff.
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3. Binghamton, N.Y. Police Department
As above, this Court will consider Plaintiff's claims against named defendant “Binghamton, N.Y. Police Department” to be a
suit against the City of Binghamton. See White v. Syracuse Police Dep't, No. 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y.
Jan. 7, 2019) (Peebles, M.J.) report and recommendation adopted by, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby,
C.J.) (“a municipal police department does not have the capacity to be sued as an entity separate from the municipality in which
it is located.”).
Even the most liberal reading of Plaintiff's Complaint would not suggest a basis for municipal liability from the actions of
the Binghamton Police Department. Plaintiff essentially complains of a single incident, during which an unnamed officer or
officers employed by the Binghamton Police Department acted improperly. As with her other municipal claims, Plaintiff has
not asserted any policy, custom, widespread practice, or failure to provide adequate training to police department officers or
other employees, and has failed to state a Monell claim.
4. Children's Home Wyoming Conference Fostercare
The Court has also considered whether the Complaint adequately alleges § 1983 claims against the Defendant “Children's Home
Wyoming Conference Foster Care,” identified elsewhere in the Complaint as “Children's Home Binghamton N.Y.” (Dkt. No. 1
at 1; 2, ¶ 11.) Following controlling law in this Circuit, this Court will assume without deciding that this defendant, described
as providing foster care services, is a state actor for purposes of § 1983 liability. See Shidagis. 2023 WL 2665461, at *3, n.3
(citing S.M. ex rel. King v. City of New York, No. 20-CV-5164, 2021 WL 3173456, at *4 (S.D.N.Y. July 26, 2021) (“The Second
Circuit has held that foster agencies meet [the state actor] test, and [has] declined to overrule this holding.”)). However, as with
her other claims, Plaintiff has not alleged any policy, custom, widespread practice, or failure to provide adequate training that
would give rise to 1983 liability against the foster agency for her mistreatment by one or more agency employees.
D. Claims Against the Judiciary
Judges are absolutely immune from suit for claims seeking damages for any actions taken within the scope of their judicial
responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Generally, “acts arising out of, or related to, individual cases
before [a] judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad
faith or malice cannot overcome judicial immunity.” Bliven, 579 F.3d at 209. Judicial immunity does not apply when a judge
takes action outside his or her judicial capacity, or when a judge takes action that, although judicial in nature, is taken “in the
complete absence of all jurisdiction.” Mireles, 502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10 (describing actions that are
judicial in nature). However, “the scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity
of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).
*10 Plaintiff asserts that Defendant Schumacher “acted outside their judicial capacity” but the claims described in her
Complaint all arise from actions that are judicial in nature, taken in his capacity as a Tioga County Family Court Judge. (Dkt.
No. 1 at 2 ¶ 9; 3, ¶ 13.) On April 2, 2025, Plaintiff filed a supplement to her Complaint alleging that Judge Schumacher further
discriminated against her by denying a request from Plaintiff's attorney to withdraw as counsel. 10 (Dkt. Nos. 5, 5-1.) This
determination is fundamentally judicial in nature, and therefore immune from suit under the doctrine of judicial immunity. As
a result, I recommend that Plaintiff's claims against Defendant Schumacher in his individual capacity be dismissed.
10 Plaintiff indicated that she no longer wanted to be represented by this attorney. (Dkt. No. 2-3 at 1.)
In addition, I recommend that Plaintiff's claims against Defendant Schumacher in his official capacity be dismissed pursuant
to the Eleventh Amendment. See Sundwall v. Leuba, 28 F. App'x 11, 12 (2d Cir. 2001) (citing K & A Radiologic Tech. Servs.,
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Inc. v. Comm'r of the Dep't of Health, 189 F.3d 273, 278 (2d Cir. 1999)) (holding that “state officers, if sued in their official
capacities, are immunized from suit by private citizens under the Eleventh Amendment.”); King v. New York State, 23-CV-3421,
2023 WL 5625440, at *4 (E.D.N.Y. Aug. 31, 2023) (citing Thomas v. Martin-Gibbons, 857 F. App'x 36, 37 (2d Cir. 2021)
(affirming dismissal of pro se Section 1983 claims against the State of New York and a state court judge in his official capacity
based on Eleventh Amendment immunity)) (“Eleventh Amendment immunity extends to state officials acting in their official
capacities, including state court judges.”); Aron v. Becker, 48 F. Supp. 3d 347, 366-67 (N.D.N.Y. 2014) (McAvoy, J.) (dismissing
the plaintiff's claims against a state court judge in his official capacity based on the doctrine of Eleventh Amendment immunity).
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.). 11
11 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.
Here, better pleading could not cure the Court's lack of subject matter jurisdiction over her claims against Judge Schumacher in
his official capacity, or those arising from actions taken in his judicial capacity as a Tioga County Family Court Judge. Given
that this is Plaintiff's initial complaint, and out of an abundance of caution, I recommend that Plaintiff be permitted to amend the
remainder of her Complaint to assert claims against the remaining named defendants or other individuals personally involved
in the alleged constitutional violations.
*11 If Plaintiff chooses to file an amended complaint, she should note that the law in this circuit clearly provides that “
‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a
deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.’ ” Hunt v. Budd, 895 F. Supp. 35,
38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry,
94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must
clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each
individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the
specific involvement of any individuals in the constitutional deprivations alleged in sufficient detail to establish that they were
tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that
any such 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.”)
VI. PLAINTIFF'S MOTION TO OBTAIN ECF LOGIN AND PASSWORD
In light of the recommended disposition of this case, Plaintiff's motion for ECF login and password is denied without prejudice.
(Dkt. No. 3.) “Because this court is recommending dismissal at this time, the court will deny [P]laintiff's motion to obtain ECF
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privileges without prejudice.” Amato, 2017 WL 9487185, at *11; see Mahmood v. United States Gov't, 20-CV-0207, 2020 WL
3965125, at *3 (N.D.N.Y. Mar. 17, 2020) (Stewart, M.J.) (same), report and recommendation adopted, 2020 WL 1808206
(N.D.N.Y. Apr. 9, 2020) (D'Agostino, J.).
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
ORDERED that Plaintiff's motion to obtain an ECF login and password (Dkt. No. 3) is DENIED WITHOUT PREJUDICE;
and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND Plaintiff's
claims against Defendant Schumacher in his individual and official capacities, pursuant to 28 U.S.C. § 1915(e)(2)(B); and it
is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE AND WITH LEAVE TO REPLEAD the remainder
of Plaintiff's Complaint (Dkt. No. 1) because the Court lacks subject matter jurisdiction over the claims asserted therein; and
it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case
and serve a copy upon the parties in accordance with the local rules. 12
12 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. 13 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)).
13 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
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Katie MERRITT, Plaintiff,
v.
Dr. Michael FARRELL, employed at Guthrie Lourdes Hosp., and licensed to practice in NY; Guthrie Lourdes
Hospital, located in Binghamton, NY; Child Protective Services (CPS) Tioga; Child Protective Services
(CPS), a state agency operating in NY; Broome County NY Dept. of Social Services; Hon. Judge Adam
Schumacher, in his individual capacity for actions outside his judicial capacity; Children's Home Wyoming
Conference Fostercare; Children's Home Binghamton, NY; and Binghamton, NY Police Dept., Defendants.
3:24-CV-1542 (GTS/ML)
|
Signed December 19, 2025
Attorneys and Law Firms
KATIE MERRITT, Plaintiff, Pro Se, P.O. Box 84, Vestal, New York 13851.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this pro se civil rights action filed by Katie Merritt (“Plaintiff”) against Child Protective
Services, Child Protective Service Tioga, Broome County New York Department of Social Services, Guthrie Lourdes Hospital,
Dr. Michael Farrell, Hon. Adam Schumacher, Children’ Home Wyoming Conference Fostercare, Children's Home Binghamton,
NY, and Binghamton, NY Police Department (“Defendants”), is United States Magistrate Judge Miroslav Lovric's Report-
Recommendation recommending that Plaintiff's claims against Defendant Schumacher be dismissed without prejudice and
without leave to amend and that her remaining claims be dismissed without prejudice but with leave to amend. (Dkt. No. 6.)
Plaintiff has not filed an Objection to the Report-Recommendation and the time in which to do so has expired. (See generally
Docket Sheet.) Instead, she has filed a proposed Amended Complaint. (Dkt. No. 8.)
Because no specific challenge has been presented to the Report-Recommendation, 1 the Court need review the Report-
Recommendation only for clear error, 2 which it easily survives. In any event, even if the Court were to subject the Report-
Recommendation to the heightened scrutiny appropriate for a specifically challenged Report-Recommendation (in light of the
arguments presented in Plaintiff's motion for reconsideration), 3 the Court would find that the Report-Recommendation survives
that scrutiny for the reasons stated therein: Magistrate Judge Lovric employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. (See generally Dkt. No. 6.) As a result, the Report-Recommendation is accepted
and adopted for the reasons set forth therein. (Id.)
1 To be “specific,” an 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 also 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
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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 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 objection
is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted).
3 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).
*2 Because Plaintiff submitted her proposed Amended Complaint before having the benefit of the Court's ruling with regard
to Magistrate Judge Lovric's Report-Recommendation, 4 the Court will give Plaintiff a reasonable opportunity in which to do
one of the following two things: (1) file a letter with the Court confirming that she would indeed like the Court to treat her
proposed Amended Complaint as her Amended Complaint; or (2) file a revised (and clearly signed) Amended Complaint.
4 Cf. Cresci v. Mohawk Valley Community College, 693 F. App'x 21, 25 (2d Cir. June 2, 2017) (“A plaintiff has no
obligation to replead merely because the defendant has argued that the complaint is deficient, without knowing whether
the court will agree.”).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric's Report-Recommendation (Dkt. No. 6) is ACCEPTED and ADOPTED in its
entirety; and it is further
ORDERED that Plaintiff's claims against Defendant Schumacher in his individual and official capacities are DISMISSED
without prejudice and without leave to amend in this action; and it is further
ORDERED that the remaining claims in Plaintiff's Complaint (Dkt. No. 1) shall be DISMISSED with prejudice and without
further Order of this Court UNLESS, within THIRTY (30) DAYS of the entry of this Decision and Order, Plaintiff files
AMENDED COMPLAINT that cures the pleading (and jurisdictional) defects identified in the Report-Recommendation; and
it is further
ORDERED that, toward that end, Plaintiff shall have THIRTY (30) DAYS in which to do one of the following two things: (1)
file a letter with the Court confirming that she would indeed like to the Court to treat her proposed Amended Complaint (Dkt.
No. 8) as her above-required Amended Complaint; or (2) separately file a revised (and clearly signed) Amended Complaint;
and it is further
ORDERED that any timely AMENDED COMPLAINT filed by Plaintiff shall be automatically referred to Magistrate Judge
Lovric for his review.
All Citations
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