Stemmons v. Glens Falls Hospital et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ADAM STEMMONS,
Plaintiff,
1:25-CV-0846
v. 	(GTS/ML)
GLENS FALLS HOSPITAL; ALBANY MED
HEALTH SYSTEM; DONNA VOLCHECK, RN;
ADRIAN A. MORRIS, MD; DR. APRIL
BEASLEY-IRVING; SUSAN K. ROBERTS-
MCMANUS, LMSW; GLENS FALLS CITY; and
GLENS FALLS POLICE DEPARTMENT,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
ADAM STEMMONS
Plaintiff, Pro Se
1343 Salem Road
York, Pennsylvania 17404
FIZGERALD MORRIS BAKER FIRTH, P.C. 	JOHN D. ASPLAND, ESQ.
Counsel for Defendants Glens Falls City
and Glens Falls Police Department
68 Warren Street
Glens Falls, New York 12801
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
I. 	BACKGROUND
A. 	Procedural History
On June 27, 2025, Plaintiff Adam Stemmons (“Plaintiff”) commenced this civil rights
action pro se by the filing of a complaint alleging that his rights were violated by Defendants
Glens Falls Hospital, Albany Med Health System, Donna Volchek, Adrian A. Morris, Dr. April
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Beasley-Irving, Susan K. Roberts-Mcmanus, Glens Falls City, and Glens Falls Police
Department (collectively “Defendants”). (Dkt. No. 1.) Plaintiff, who currently resides in
Pennsylvania, did not pay the filing fee and sought leave to proceed in forma pauperis (“IFP”).
(Dkt. No. 3.)
On July 10, 2025, the undersigned denied Plaintiff’s IFP application as incomplete. (Dkt.
No. 15.) Plaintiff was informed that if he wished to pursue this action he must either (1) pay the
filing fee in full, or (2) submit a completed and signed IFP application. (Id.)
On July 10, 2025, Plaintiff submitted an amended IFP application. (Dkt. No. 16.) On
August 11, 2025, the undersigned denied Plaintiff’s amended IFP application as incomplete.
(Dkt. No. 22.) Plaintiff was informed that if he wished to pursue this action he must either (1)
pay the filing fee in full, or (2) submit a completed and signed IFP application. (Id.)
On August 12, 2025, Plaintiff filed a second amended IFP application. (Dkt. No. 24.)
On September 11, 2025, Plaintiff filed an amended complaint as of right pursuant to Fed. R. Civ.
P. 15. (Dkt. No. 25.)
On September 28, 2025, Plaintiff filed a letter motion requesting a court conference.
(Dkt. No. 26.) On September 30, 2025, Plaintiff’s letter motion was denied. (Dkt. No. 27.) The
Court noted that Plaintiff’s second amended IFP application (Dkt. No. 24) and Amended
Complaint (Dkt. No. 25) were before the Court for a sufficiency review pursuant to 28 U.S.C. §
1915 and that if any claims survive review and Defendants are properly served, then an initial
conference would be scheduled. (Dkt. No. 27.)
On September 30, 2025, Plaintiff appealed the undersigned’s order denying his letter
motion. (Dkt. No. 28.) On November 18, 2025, United States District Judge Glenn T. Suddaby
denied Plaintiff’s appeal of the undersigned’s order. (Dkt. No. 30.)
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On December 12, 2025, Plaintiff filed a letter motion requesting a hearing with the
undersigned. (Dkt. No. 32.) On December 15, 2025, the undersigned denied Plaintiff’s letter
motion. (Dkt. No. 33.) On December 16, 2025, Plaintiff appealed the undersigned’s denial of
his letter motion, which is pending before Judge Suddaby. (Dkt. No. 34.) On December 30,
2025, Defendants Glens Falls and Glens Falls Police Department filed a memorandum of law in
opposition to Plaintiff’s appeal. (Dkt. No. 35.)
On February 4, 2026, Plaintiff filed a document that was docketed as an objection and
challenged the number of pages contained in the opposition filed by Defendants Glens Falls City
and Glens Falls Police Department because it contained the cases cited in the opposition. (Dkt.
No. 38.) Plaintiff asked that the Court “dismiss the full filing by” Defendants Glens Falls and
Glens Falls Police Department. (Dkt. No. 38 at 2.) On February 4, 2026, the undersigned denied
Plaintiff’s filing at Dkt. No. 38. (Dkt. No. 39.) On February 9, 2026, Plaintiff filed a notice of
interlocutory appeal regarding the undersigned’s text order at Dkt. No. 39. (Dkt. No. 41.)
By separate Order, dated February 18, 2026, this Court granted Plaintiff’s Second
Amended IFP application. (Dkt. No. 45.) Now, in accordance with 28 U.S.C. § 1915(e), the
Court will sua sponte review the sufficiency of the Amended Complaint.
B. 	Amended Complaint
Construed as liberally1 as possible, the Amended Complaint appears to allege violations
of Plaintiff’s civil rights by Defendants. (See generally Dkt. No. 25.) The Amended Complaint
is sparse on facts, but appears to allege that Plaintiff has been diagnosed with various mental
health conditions that resulted in his admission to Defendant Glens Falls Hospital throughout the
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)).
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years 2007 to 2009. (Dkt. No. 25 at 2.) Plaintiff alleges that in 2010 he experienced a “major
medical issue” that resulted in criminal charges against him. (Id.)
Plaintiff alleges that, despite his due diligence, he was unable to obtain his medical
records from Defendant Glens Falls Hospital until May 8, 2025, and those medical records
revealed additional diagnoses that he was unaware of. (Dkt. No. 25 at 3-4, 11.) Plaintiff alleges
that his IQ increased since his 2010 admission to Defendant Glens Falls Hospital and he has
since earned an Associates degree, a Bachelors degree, and is currently working on earning a
Masters degree. (Id. at 3-4; see also id. at 12 [outlining Plaintiff’s academic accomplishments].)
The Amended Complaint alleges that in 2010, while admitted to the mental health unit in
Defendant Glens Falls Hospital, Plaintiff experienced a swollen foot. (Dkt. No. 25 at 4, 10.)
Plaintiff alleges that he unsuccessfully sought assistance from the staff and thus, was “forced to
try and get himself help.” (Id. at 4, 10.) The Amended Complaint alleges that Defendant
Volchek stepped in front of Plaintiff to stop him from advancing toward an exit and, in doing so,
Defendant Volcheck got hurt when Plaintiff tried to move her. (Id. at 4, 10.) Plaintiff alleges
that he was merely trying to get himself medical attention. (Id. at 5.)
Plaintiff alleges that he received some of the medical records from this 2010 admission to
Defendant Glens Falls Hospital but believes that “some other records a[re] being still held by
[Defendant] Glens Falls Hospital . . . and others were destroyed in the last decade.” (Dkt. No. 25
at 5.)
The Amended Complaint acknowledges that “[t]his case will have the statute of
limitations brought up” but asserts that because Plaintiff is not a lawyer, he “should not be held
responsible for any issue with the statute of limitations.” (Dkt. No. 25 at 5.) Moreover, Plaintiff
alleges that because he obtained medical records on May 8, 2025, “that allows him to file civil
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suit[] against all the defendants and to reopen the criminal case.” (Id. at 6; accord id. at 7
[alleging that the release of Plaintiff’s medical records on May 8, 2025 “restart[s] the statute of
limitations.”].) Plaintiff alleges that he was diligent in his attempts to obtain his medical records.
(Id. at 17-18.)
The Amended Complaint alleges that Defendant Glens Falls Police Department charged
Plaintiff with threatening a social worker and illegally released his mugshot. (Dkt. No. 25 at 8.)
Plaintiff alleges that he just recently “got[] his mug shot removed from one search engine.” (Id.)
Plaintiff alleges that the illegal release of his mug shot was a violation of New York law and
“had a massive impact on his ability to get a[n] interview for a job.” (Id.)
The Amended Complaint alleges that the public defender who represented Plaintiff
during one or more of the criminal proceedings brought against him neglected to request a delay
of the criminal proceeding pending the conclusion of a New York State investigation into
medical records keeping by Defendant Glens Falls Hospital. (Dkt. No. 25 at 9.) Plaintiff alleges
that he entered a plea of no contest but the documentation was “altered to indicate a guilty plea.”
(Id.) Plaintiff alleges that the public defender’s officer refused to handle his appeals. (Id. at 10.)
The Amended Complaint alleges that the medical records that Plaintiff received on May
8, 2025, reveal that in May 2010 he had a medical issue related to varicose veins, which reflects
that Plaintiff’s gout and varicose veins were not “in his head” and that Defendant Glens Falls
Hospital “hid[] prior knowledge of past medical issues.” (Dkt. No. 25 at 15-16.)
Based on these factual allegations, Plaintiff appears to assert claims pursuant to 42 U.S.C.
§ 1983 and 18 U.S.C. §§ 1961-1968 Racketeering Influenced and Corrupt Organizations Act
(“RICO”) violations. (Dkt. No. 25 at 20-24.)
As relief, Plaintiff seeks $25,000,000 in damages. (Dkt. No. 25 at 24.)
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II. 	LEGAL STANDARDS
“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).
“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.
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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).
III. 	ANALYSIS
After carefully considering the matter, I recommend that the Amended Complaint be
dismissed for four reasons.
First, the undersigned notes that Plaintiff’s Amended Complaint is woefully deficient.
The Amended Complaint contains few allegations of fact and even fewer references to the
named Defendants. Indeed, aside from identifying Defendants in the introductory paragraphs,
the Amended Complaint fails to make any mention by name of Defendants Morris, Beasley-
Irving, or Roberts-Mcmanus. (See Dkt. No. 25 at 1; Dkt. No. 25, Attach. 1 at 1.) In addition to
the introductory paragraphs, the Amended Complaint mentions Defendant Volcheck only one
time. (Dkt. No. 25 at 1, 4; Dkt. No. 25, Attach. 1 at 1.) Providing allegations of fact concerning
the actions of each Defendant is a vital pleading requirement, and Plaintiff’s failure to do so is
fatal to his action. See LaPietra v. City of Albany Police Dep’t, 19-CV-1527, 2020 WL
5891888, at *8-9 (N.D.N.Y. Oct. 5, 2020) (Dancks, M.J.) (recommending dismissal of the
plaintiffs’ claims where they “simply list[ed] different groups of unidentified defendants in the
caption of the Complaint and generally allege[d] that on December 16, 2014, their Fourth
Amendment constitutional rights were violated.”), report and recommendation adopted, 2020
WL 7021589 (N.D.N.Y. Nov. 30, 2020) (McAvoy, J.); Cipriani v. Buffardi, 06-CV-0889, 2007
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WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (Khan, J.) (citing Gonzalez v. City of New York, 97-
CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)) (“Dismissal is appropriate where a
defendant is listed in the caption, but the body of the complaint fails to indicate what the
defendant did to the plaintiff.”); see also Crown v. Wagenstein, 96-CV-3895, 1998 WL 118169,
at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden’s name in complaint insufficient to
allege personal involvement); Taylor v. City of New York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997)
(same).
Second, plaguing this action further is the fact that the statute of limitations has run on
any civil rights claim Plaintiff seeks to assert under 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 by a person acting under color of state law. Wilder v. Virginia
Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983); see also Myers v. Wollowitz,
95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (Section 1983
“is the vehicle by which individuals may seek redress for alleged violations of their
constitutional rights.”). In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must
allege that (1) “some person has deprived him of a federal right,” and (2) “the person who has
deprived him of that right acted under color of state . . . law.” Velez v. Levy, 401 F.3d 75, 84 (2d
Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
The events purportedly giving rise to Plaintiff’s claims occurred in 2010, when an
altercation apparently occurred at Defendant Glens Falls Hospital resulting, at some point in
time, with Plaintiff being charged with a crime, for which he ultimately pled guilty. (Dkt. No. 25
at 4); Pauk v. Bd. of Trustees of City Univ. of New York, 654 F.2d 856, 859 (2d Cir. 1981)
(federal claim accrues when the plaintiff “knows or has reason to know” of the injury that is the
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basis for his action). Notwithstanding, Plaintiff did not commence this action until June 27,
2025. With a three-year statute of limitations for § 1983 actions, it appears that this action is not
timely. Bailey v. Tricolla, 94-CV-4597, 1995 WL 548714, at *3 (E.D.N.Y. Sept. 12, 1995)
(noting that in the absence of a congressional dictate as to a limitations period, we apply the most
appropriate state statute of limitations, which for 1983 actions is the general personal injury
statute setting forth a limitations period of three years); see also Pearl v. City of Long Beach, 296
F.3d 76, 79 (2d Cir. 2002) (noting that the applicable limitations period for § 1983 actions in
New York is three years). Moreover, the statute of limitations for a civil RICO claim is four
years. McKenzie v. Artists Rights Society, Inc., 757 F. Supp. 3d 427, 442 (S.D.N.Y. 2024)
(quoting Koch v. Christie’s Int’l PLC, 699 F.3d 141, 148 (2d Cir. 2012)) (“RICO claims are
subject to a four-year statute of limitations.”)
Thus, because Plaintiff did not file this action until approximately fifteen years after the
incident, it is time-barred unless a tolling principle applies so as to excuse the delay.2
Tolling is not warranted under the circumstances alleged in the Amended Complaint.
“Although the Second Circuit recognizes the continuing violation doctrine, it has qualified that
the doctrine applies only to claims ‘composed of a series of separate acts that collectively
constitute one unlawful practice,’ or ‘claims that by their nature accrue only after the plaintiff has
2 	The failure to file an action within the limitations period is an affirmative defense, and
thus, a plaintiff is not required to plead that the case is timely filed. See Abbas v. Dixon, 480
F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an
affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See
Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011)
(“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain
circumstances where the facts supporting the statute of limitations defense are set forth in the
papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v.
Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on
statute of limitations grounds).
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been subjected to some threshold amount of mistreatment.’” Hall v. Clinton Cnty., 18-CV-1405,
2020 WL 1923236, at *5 (N.D.N.Y. Apr. 21, 2020) (Suddaby, C.J.) (quoting Gonzalez v. Hasty,
802 F.3d 212, 220 (2d Cir. 2015)). Moreover, equitable tolling is available in “rare and
exceptional” cases where “extraordinary circumstances prevented a party from timely
performing a required act,” and “the party acted with reasonable diligence throughout the period”
to be tolled. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005); see also Gonzalez v. Hasty,
651 F.3d 318, 322 (2d Cir. 2011) (“Equitable tolling is an extraordinary measure that applies
only when plaintiff is prevented from filing despite exercising that level of diligence which could
reasonably be expected in the circumstances.”). I recommend that the Court decline to find the
continuing violation doctrine or equitable tolling applicable to Plaintiff’s claims and find that
there is no other apparent basis for tolling the statute of limitations.
Although Plaintiff argues that he should not be responsible for the statute of limitations
because he is not a lawyer, Courts have consistently dismissed untimely actions brought by pro
se litigants. (Dkt. No. 25 at 5); see, e.g., Wallace v. City of New York, 22-CV-3414, 2026 WL
392345, at *3 (S.D.N.Y. Feb. 12, 2026) (dismissing the pro se plaintiff’s untimely Section 1983
claims); Beaman v. New York, 25-CV-1402, 2026 WL 189446, at *2 (N.D.N.Y. Jan. 22, 2026)
(Coombe, J.) (same). Moreover, I reject Plaintiff’s argument that his receipt of medical records
resets the statute of limitations in this action. (Dkt. No. 25 at 6-7.) Plaintiff brought an
analogous proceeding in this Court in 2014, which was also dismissed for, among other things,
being untimely. Stemmons v. Volchek, 1:14-CV-1456 (TJM/RFT) (“Stemmons I”, Dkt. No. 4 at
6-7; Stemmons I, Dkt. No. 9 at 2.) Hence, Plaintiff cannot sensibly claim that he was prevented
from filing this action despite exercising reasonable diligence when he brought an action
regarding the same allegations more than 10 years ago.
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Third, presuming for the moment that Plaintiff’s tardiness in bringing this action could be
excused through some tolling provision, Plaintiff fails to state a claim upon which relief may be
granted pursuant to 42 U.S.C. § 1983. Plaintiff’s claims against Defendants Glens Falls
Hospital, Albany Med Health System, Volcheck, Morris, Beasley-Irving, and Roberts-Mcmanus
are deficient because he fails to assert facts that plausibly suggest that his constitutional rights
were violated by a person acting under color of state law. It is well-settled that parties may not
be held liable under § 1983 unless it can be established that they have acted under the color of
state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994) (noting state action
requirement under § 1983). State action is an essential element of any § 1983 claim. See Gentile
v. Republic Tobacco Co., 95-CV-1500, 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995)
(Pooler, J.) (citing Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994)
(McAvoy, C.J.)).
“Here, Glens Falls Hospital staff are not state actors, but rather, are employees of a
private, not-for-profit hospital.” Stemmons I, Dkt. No. 4 at 7-8 (citing Crawley v. Nat’l Life Ins.
Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003) (“For the conduct of a private entity to be fairly
attributable to the state, there must be such a close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated as that of the State itself.”)).
Similarly, Plaintiff does not appear to be asserting any claims against his criminal defense
attorney but to the extent that the Amended Complaint is construed as asserting claims against
his defense attorney, those claims fail. Polk Cnty. v. Dodson, 454 U.S. 312, 321 (1981);
Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (noting that a claim for ineffective
assistance of counsel is not actionable in a § 1983 proceeding and further citing Polk Cnty. v.
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Dodson for the proposition that public defenders do not act under color of state law and are not
subject to suit under § 1983).
With regard to Defendants Glens Falls City and Glens Falls Police Department, Plaintiff
fails to allege facts plausibly suggesting that his constitutional rights were violated pursuant to an
official policy or custom. Adams v. City of Syracuse, 21-CV-0650, 2025 WL 2772081, at *28
(N.D.N.Y. Sept. 29, 2025) (Nardacci, J.) (internal brackets omitted) (quoting Lucente v. Cnty. of
Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)) (“[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.”).
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).
Plaintiff’s Monell claim necessarily fails because “[i]t is well-established that a Monell
claim cannot succeed without an underlying violation, and here there is no constitutional
violation.” Mastromonaco v. City of Westchester, 779 F. App’x 49, 51 (2d Cir. 2019); see also
DeRaffele v. City of New Rochelle, 15-CV-0282, 2017 WL 2560008, at *6 (S.D.N.Y. June 13,
2017) (“It is well-established that a Monell claim cannot lie in the absence of an underlying
constitutional violation.”). It is similarly well-established that “Monell does not provide a
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separate cause of action . . . it extends liability to a municipal organization where that
organization’s failure to train, or the policies or customs that it has sanctioned, led to an
independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006). Plaintiff has not plausibly alleged a constitutional violation against an employee of
Defendant Glens Falls City. Without an “independent constitutional violation,” Segal, 459 F.3d
at 219, Plaintiff’s municipal liability claim against Defendant Glens Falls City must be
dismissed.
Even if an underlying cause of action survived, Plaintiff has not plausibly alleged a
Monell claim against Defendant Glens Falls City,3 necessitating dismissal on this independent
basis. Plaintiff essentially complains of discrete incidents during which Plaintiff communicated
with Sergeant Arnold, Sergeant Eggleston, William Holmes, Zach Flewelling, and Officer James
Fiorini—who the Amended Complaint does not allege work for Defendant Glens Falls Police
Department— and they did not act properly. (See generally Dkt. No. 25 at 23-24; but see Dkt.
No. 25 at 2 [listing “GFPD sgt 9Michelle Arnold Formal GFPD sgt 10Christopher eggleston,
formal officer 11William holmes, officer “now with Hudson Falls PD” 12Zach Flewelling and
officer 13James Fiorini” under heading titled “Defendant’s and there contacts are” (errors in
3 	“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.). Hence, any claims against Defendant Glens Falls Police Department
should be dismissed because it is not an entity amenable to suit.
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original)].) There is no indication that Plaintiff can assert a policy or custom, which would
support municipal liability based on these facts. See Flagg v. NYS Division of Parole, 19-CV-
0886, 2019 WL 5002215, at *5 (N.D.N.Y. Aug. 15, 2019) (Baxter, M.J.) (citing DeCarlo v. Fry,
141 F.3d 56, 61 (2d Cir. 1998)) (“A single incident, particularly if it involved individuals below
the policy-making level is insufficient to state a Monell claim.”), report and recommendation
adopted, 2019 WL 4963112 (N.D.N.Y. Oct. 8, 2019) (McAvoy, J.); Wright v. City of Syracuse,
10-CV-0661, 2014 WL 1293527, at *15 (N.D.N.Y. Mar. 31, 2014) (Suddaby, J.) (“Isolated acts
of municipal employees are typically not sufficient to establish municipal liability.”). In
addition, none of Plaintiff’s allegations reflect a failure to train or “deliberate indifference” to the
rights of persons who would come into contact with employees of Defendant County of Oneida.
Further, the Amended Complaint fails to allege facts plausibly suggesting that
Defendants Glens Falls City or Glens Falls Police Department violated any of Plaintiff’s rights
guaranteed by the U.S. Constitution. “Moreover, in light of Plaintiff’s guilty plea, and the
paucity of facts contained in the [Amended] Complaint, it appears to this Court that this action is
barred.” Stemmons I, Dkt. No. 4 at 8. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme
Court held that
in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
The Amended Complaint alleges that Plaintiff pleaded no contest to the criminal charges
that were brought against him. (Dkt. No. 25 at 9.) Under such scenario, § 1983 is not the proper
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mechanism for Plaintiff to obtain relief. Stemmons I, Dkt. No. 4 at 9; see Miller v. Stallworth,
2018 WL 3974730, at *4 (D. Conn. Aug. 20, 2018) (holding that “[i]f the [c]ourt were to rule in
plaintiff’s favor on his claims . . . this would surely impugn the validity of the charges to which
he himself alleges he has entered a plea of no contest.”). Therefore, until and unless Plaintiff can
show that he has been acquitted of the charges or that his conviction or sentence has been
overturned, I find that this action is barred and dismissal is appropriate.
Fourth, Plaintiff fails to state a claim upon which relief may be granted pursuant to 18
U.S.C. §§ 1961-1968. The civil RICO enforcement provision states that “[a]ny person injured in
his business or property by reason of a violation of [18 U.S.C. § 1962] . . . may sue . . . in any
appropriate United States district court and shall recover threefold the damages[.]” 18 U.S.C. §
1964(c). In order to state a violation of Section 1962, and thus, a claim under the civil RICO
enforcement provision, a plaintiff must allege facts showing: “(1) that the defendant (2) through
the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5)
directly or indirectly invests in, or maintains an interest in, or participates in (6) an ‘enterprise’
(7) the activities of which affect interstate or foreign commerce.” Moss v. Morgan Stanley, Inc.,
719 F.2d 5, 17 (2d Cir. 1983) (quoting § 1962(a)-(c)). Such a person must also “allege that he
was ‘injured in his business or property by reason of a violation of section 1962.’” Moss, 719
F.2d at 17 (quoting § 1964(c)) (italics in original).
“Local Rule 9.2 requires a party asserting a claim under RICO to ‘file a RICO statement
within thirty (30) days of the filing of the pleading containing such claim.’” Poole v. Bendixen,
20-CV-0697, 2021 WL 3737780, at *11 (N.D.N.Y. Aug. 24, 2021) (Suddaby, C.J.). Failure to
timely file a RICO statement pursuant to this rule is grounds for dismissal of the RICO claims.
See Pierce v. Homecomings Fin. LLC, 17-CV-0882, 2017 WL 5991750, at *2 n.2 (N.D.N.Y.
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Dec. 4, 2017) (Sannes, J.) (noting that, where a plaintiff failed to file a RICO statement pursuant
to Local Rule 9.2, “[p]laintiff's RICO claim may be dismissed for this reason alone”); see also
Amaker v. Kelley, 01-CV-0877, 2009 WL 385413, at *11 (N.D.N.Y. Feb. 9, 2009) (Peebles,
M.J.) (holding that failure to file a RICO statement “provid[es] a threshold for dismissal of [a]
plaintiff's RICO claim”); Spoto v. Herkimer Cnty. Trust, 99-CV-1476, 2000 WL 533293, at *3
n.2 (N.D.N.Y. Apr. 27, 2000) (Munson, J.) (“[T]he [c]ourt would be justified to dismiss [the]
complaint based upon the[ ] very untimely filing of the[ ] Local Rule 9.2 RICO Statement.”).
Plaintiff filed his complaint on June 27, 2025, and the Amended Complaint on September
11, 2025. (Dkt. Nos. 1, 25.) To date, Plaintiff has not filed a RICO statement (see generally
docket sheet) and the time to do so pursuant to Local Rule 9.2 expired. Based on Plaintiff's
violation of Local Rule 9.2, I recommend that Plaintiff's RICO claim against Defendants be
dismissed. See Murphy v. Onondaga Cnty., 18-CV-1218, 2022 WL 819281, at *7 (N.D.N.Y.
Mar. 18, 2022) (Sharpe, J.) (dismissing the plaintiff's RICO conspiracy claims where the plaintiff
filed a late RICO statement); Poole, 2021 WL 3737780, at *11 (dismissing RICO claims where
the plaintiffs failed to timely file a RICO statement under Local Rule 9.2, “regardless of
Plaintiffs’ good-faith work on other aspects of th[e] case.”).
Moreover, even if Plaintiff’s failure to file a RICO statement were excused, Plaintiff fails
to state a claim upon which relief may be granted. The Amended Complaint fails to allege facts
plausibly suggesting “how the government [actors] joined the criminal enterprises; when the
conspiracies began; what roles each of the alleged co-conspirators played; how precisely the
conspiracies operated; or how he was negatively impacted by these activities.” Gibbs v. Bank of
Am., N.A., 22-CV-0011, 2022 WL 1469402, at *5 (E.D.N.Y. May 10, 2022). Plaintiff’s
conclusory allegation in the Amended Complaint that Defendants engaged in racketeering
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evinced by Plaintiff’s “repeated admissions” to Defendant Glens Falls Hospital, the hiding of
medical records, the physical torture, the obstruction of justice, threats, and the failure to provide
medical treatment, does not plausibly suggest a violation of the RICO statute. (Dkt. No. 25 at
22-24.)
For each of these reasons, I recommend that the Amended Complaint be dismissed.4
IV. 	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
4 	Stemmons I was dismissed on June 4, 2015, after a sua sponte review of the complaint
pursuant to 28 U.S.C. § 1915. (Stemmons I, Dkt. Nos. 9, 10.) Plaintiff’s allegations in Stemmons
I against Defendants Volcheck and Beasley-Irving functionally mirror those set forth in this
action. (Compare Stemmons I, Dkt. No. 1, with Dkt. No. 25.) “A plaintiff cannot commence a
new action seeking to review the same issues that this Court already decided against him.”
Phillips v. Schenectady Child Support Unite, 24-CV-0853, 2025 WL 895035, at *4 n.10
(N.D.N.Y. Mar. 24, 2025) (Evangelista, M.J.), report and recommendation adopted, 2025 WL
1191320 (N.D.N.Y. Apr. 24, 2025) (Sannes, C.J.). Hence, collateral estoppel may be another
alternative basis upon which this Court may dismiss the claims set forth in the Amended
Complaint against Defendants Volcheck and Beasley-Irving. See Ali v. Mukasey, 529 F.3d 478,
489 (2d Cir. 2008) (“[C]ollateral estoppel applies when: (1) the issues in both proceedings are
identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3)
there was a full and fair opportunity for litigation in the prior proceeding, and (4) the issues
previously litigated were necessary to support a valid and final judgment on the merits.”)
(internal quotation marks and citations omitted).
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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.).5
The issues identified in the Amended Complaint are substantive, such that a better
pleading cannot cure them. As a result, I recommend that the Amended Complaint be dismissed
without leave to amend. Stemmons I, Dkt. No. 4 at 9 [recommending dismissal of Plaintiff’s
complaint without leave to amend because “any amendment would be futile in light of other
infirmities plaguing this action.”]; Stemmons I, Dkt. No. 9 at 2 [adopting Magistrate Judge
Treece’s recommendation and dismissing the complaint with prejudice].)
ACCORDINGLY, it is respectfully
RECOMMENDED that Plaintiff’s Amended Complaint (Dkt. No. 25) be DISMISSED
without leave to amend, pursuant to 28 U.S.C. § 1915(e)(2)(B); 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.6
5 	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.
6 	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).
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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.7 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)).
Dated: February __, 2026
Binghamton, New York
7 	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).
26
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Adams v. City of Syracuse, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Adams v. City of Syracuse, 2nd Cir., October 17, 2025
2025 WL 2772081
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Robert ADAMS, Jr., Plaintiff,
v.
CITY OF SYRACUSE et al., Defendants.
5:21-cv-00650 (AMN/MJK)
|
Signed September 29, 2025
Attorneys and Law Firms
A. CABRAL BONNER, ESQ., CHARLES A. BONNER,
ESQ., LAW OFFICES OF BONNER & BONNER, 3060
Kerner Boulevard – Suite A, San Rafael, California 94901,
Attorneys for Plaintiff.
JESSE P. RYDER, ESQ., RYDER LAW FIRM, 6739 Myers
Road, East Syracuse, New York 13257, Attorneys for
Plaintiff.
DANIELLE R. SMITH, ESQ., TODD M. LONG, ESQ.,
CITY OF SYRACUSE, CORPORATION COUNSEL, 233
East Washington Street, Room 300 City Hall, Syracuse, New
York 13202, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On June 3, 2021, Robert Adams, Jr. (“Plaintiff”),
commenced this civil rights action against Police Officers
Joseph Tolone, 1 Aaron Cecile, and Lashonda Russell (the
“Responding Officers”); Detectives Ryan Brimmer and
Jeffrey Beauchine (the “Detectives” and together with the
Responding Officers, the “Individual Defendants”); the City
of Syracuse (“Defendant City,” and, together with the
Individual Defendants, “Defendants”); Does 1-100 (the “Doe
Defendants”); and others, alleging violations of federal and
state law arising from his arrest and subsequent monthslong
detention during a since-dismissed criminal prosecution. Dkt.
No. 1 (“Complaint”).
Presently before the Court 2 is Defendants’ motion for
summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure, Dkt. No. 77 (“Motion”), Plaintiff's
opposition, Dkt. No. 85, and Defendants’ reply in further
support, Dkt. No. 90. For the reasons set forth below, the
Motion is granted in part and denied in part.
II. BACKGROUND 3
A. The Parties
Plaintiff is a black man who has lived in Syracuse for most of
his life. See, e.g., Dkt. No. 77-44 at 16:5-17:4. In May 2019,
he was 55 years old, approximately 5’7” in height and 160
pounds in weight, and lived in an apartment building located
at 941 James Street. Dkt. No. 90-1 at ¶ 515; Dkt. No. 77-23.
At that time, Plaintiff's medical diagnoses included, inter alia,
alcoholism, depression, and schizophrenia. Dkt. No. 77-42 at
2-3; Dkt. No. 77-55 at ¶ 454.
Defendant City is a large municipality in New York State with
a police department that employs the Individual Defendants.
As of May 2019, Officer Cecile had been a patrol officer
for approximately two years, Dkt. No. 77-47 at 21:24-22:15;
Officer Russell had been a patrol officer for approximately
three years, Dkt. No. 77-46 at 9:17-25; Officer Tolone had
been a patrol officer for approximately three years, Dkt. No.
77-48 at 9:24-10:2; Detective Brimmer had been a detective
for less than three years, Dkt. No. 77-49 at 12:11-13:8; and
Detective Beauchine had been a detective for approximately
nine years, Dkt. No. 77-51 at 16:21-17:17.
B. Relevant Events
1. May 1, 2016
Shortly after 7:30 p.m. on May 1, 2019, police (apparently
including Officer Russell) and emergency medical services
found Plaintiff intoxicated and lying on the side of a road
in Syracuse. Dkt. No. 77-42 at 2, 50-51; Dkt. No. 77-46
at 104:15-25. Plaintiff was covered in feces and urine and
reported drinking six to seven “Na[tt]y Daddy beverages,”
a brand of malt liquor. Dkt. No. 77-42 at 2, 51; Dkt. No.
77-43 at 49:11-13. Plaintiff was transported to a local hospital
emergency room for treatment, where his blood alcohol level
(“BAC”) was measured at 0.422 percent later that night. 4
Dkt. No. 77-55 at ¶ 311; Dkt. No. 77-42 at 25.
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2. May 6, 2016
a. 941 James Street
*2 At around 3:00 p.m. on May 6, 2019, Plaintiff began
drinking in and in front of his apartment building at 941
James Street. Dkt. No. 77-55 at ¶¶ 407, 410. By 4:00 or
5:00 p.m., he had consumed three or four 24-ounce cans of
Natty Daddy. Id. at ¶ 411. Around that time, a younger man,
Charles Jones, came over to socialize with Plaintiff. Id. The
two had known each for several years and, while they were
not actually related, Plaintiff referred to Mr. Jones as his
nephew and Mr. Jones called Plaintiff uncle. Dkt. No. 77-43
at 71:8-15; Dkt. No. 77-44 at 59:1-7, 98:16-23. Plaintiff and
Mr. Jones walked to a store to purchase four of five more 24-
ounce cans of Natty Daddy that they could share. Dkt. No.
77-55 at ¶¶ 414, 416. Plaintiff paid for the alcohol because
Mr. Jones had no money. Id. at ¶ 415. The two returned to
941 James Street, where a woman (Vanessa Goldych) and an
unnamed man were outside the building. Id. at ¶¶ 417, 419,
421-22, 424. Plaintiff continued drinking Natty Daddy and
joined Mr. Jones, Ms. Goldych, and the unnamed man in front
of 941 James Street. Id. at ¶¶ 419-20. At some point, Mr. Jones
and the unnamed man got into a verbal altercation, which then
turned physical. Id. at ¶¶ 421, 424.
i. 911 call
Shortly before 7:30 p.m., a young woman (Arianna Jordan
Bailey) was walking down James Street with her siblings. Id.
at ¶¶ 1, 339. At that time, Ms. Bailey observed the physical
altercation between Mr. Jones and the unnamed man. Id. at
¶ 340. Mr. Jones swung a stick at the unnamed man; that
man grabbed the stick and proceeded to knock Mr. Jones to
the ground. Id. The unnamed man then discarded the stick,
smashed Mr. Jones’ cell phone on the ground, and took off
running down the sidewalk. Dkt. No. 85-10 at 4. Mr. Jones
was not moving and did not get up, and Plaintiff went to check
on him. Id. at 5. Plaintiff asked Ms. Bailey to call 911. Id. At
approximately 7:25 p.m., Ms. Bailey did so. Dkt. No. 77-55
at ¶ 1.
The roughly three and a half minute recording of that 911
call reflects that Ms. Bailey informed the dispatcher that two
people had been fighting; one was unconscious on the ground;
and “a big type log looking thing” had been involved as a
weapon. Id. at ¶¶ 2-4; see also Dkt. No. 77-5. When the
dispatcher asked whether the assailant was still there, Ms.
Bailey said “no” and explained that “he got up out of here.”
Dkt. No. 77-55 at ¶ 5.
When the dispatcher asked for a description of the assailant,
Ms. Bailey said “he was African-American” and she had “just
seen him running off.” Id. at ¶¶ 6-7. Ms. Bailey then switched
to providing a description of Mr. Jones, whom she described
as approximately 25 years old and 5’7”. Id. at ¶¶ 8-9. When
the dispatcher clarified that he needed the description of the
assailant, Ms. Bailey stated that he was “kind of bigger, he's
gotta be like 6’3”, like medium build[.]” Id. at ¶ 10.
When the dispatcher asked what the assailant was wearing,
Ms. Bailey said “a green lookin’ sweatsuit thing” and then
explained that “officers [a]re right here on site and I'm just
gonna tell them what happened.” Id. at ¶¶ 10-11. Ms. Bailey
can then be heard saying “he got in a fight with somebody, the
other dude ran off but he got knocked out... he was, he was hit
too in the whole altercation, you see that stick he was hit with
that ... he was.” Id. at ¶ 12; see also Dkt. No. 77-16 at 0:05.
ii. Police response
Officers Russell, Cecile, and Tolone were the officers
who initially responded to 941 James Street between
approximately 7:27 and 7:28 p.m. Id. at ¶¶ 14-15. The
911 call notes indicated “2 PEOPLE FIGHTING – ONE
PERSON NOW UNC[ONSCIOUS] ON THE GROUND –
COMPL[AINANT] SAW A VERY LG STICK.” Dkt. No.
77-4 at 3; Dkt. No. 77-55 at ¶¶ 16-17. The 911 call notes also
reported that the assailant was “ ‘a black male,’ 25-35 years
old, six feet 3 inches, last seen wearing a green sweat[suit].”
Dkt. No. 90-1 at ¶ 18. Soon after 7:30 p.m., four other officers
arrived at the scene. See, e.g., Dkt. No. 77-4 at 1-2.
After arriving, each of the Responding Officers activated and
de-activated their body worn cameras (“BWC”) at different
times. See Dkt. Nos. 77-15, 77-16, 77-17. Officer Russell's
BWC footage initially shows her standing over Mr. Jones,
next to Plaintiff (who is also on the ground) and Ms. Bailey,
as Officer Cecile exits his police vehicle and walks over. Dkt.
No. 77-16 at 0:00. Ms. Bailey, who was still on the phone
with 911 at this time, is visible pointing down at Mr. Jones
and saying “he got into a fight with somebody” and “the other
dude run off.” Id.; Dkt. No. 77-55 at ¶ 21. Plaintiff says words
to the same effect. Dkt. No. 77-16 at 0:00.
*3 Officer Russell proceeded to ask Plaintiff, who had some
blood on his lip, “what happened to you, why you bleeding?”
Dkt. No. 77-55 at ¶ 29. Ms. Bailey explained “he was hit too”
and “you see that stick he was hit with that.” Dkt. No. 77-55 at
¶ 12; Dkt. No. 77-16 at 0:05. Ms. Bailey subsequently slowly
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walked down the sidewalk, as Officer Tolone walked past her
to join Officers Russell and Cecile by Mr. Jones. Dkt. No.
77-16 at 0:15; Dkt. No. 77-55 at ¶ 32. Officer Tolone tended to
Mr. Jones, who remained unconscious, with labored, gasping
breaths and blood coming from the left side of his head. Dkt.
No. 77-55 at ¶¶ 40-42.
Plaintiff remained near the Responding Officers during this
time. See generally Dkt. Nos. 77-16, 77-17. In response
to Officer Cecile's question about who had hit Mr. Jones,
Plaintiff said “some motherfucker.” Dkt. No. 77-16 at 1:10. In
response to Officer Russell's question about what that person
looked like, Plaintiff pointed down James Street and said it
was a “black guy” whom he did not know. Dkt. No. 77-16
at 1:15. Following further questions, Plaintiff stated words to
the effect of “y'all acting like we did something wrong.” Id.
at 1:58. Officer Russell responded “no, no, we just trying to
get that information, so that way we can put out a point of
information regarding the guy who did it.” Id. at 2:03. Officer
Russell again asked about Plaintiff's lip; Plaintiff responded
that it was “a long story” and unrelated to Mr. Jones. Id.
at 2:28. In response to Officer Russell's question, Plaintiff
confirmed that he, Mr. Jones, and Ms. Goldych had been
drinking with a fourth person. Id. at 2:54. Plaintiff also stated
that the fourth person hit Mr. Jones, and that this person's
name was “Pete.” Id. Officer Russell then confirmed this
version of events with Ms. Goldych. Id. at 3:00. In response
to further questioning from Officer Russell, Plaintiff provided
his name, address, and birthdate. Id. at 3:47, 4:10. Plaintiff
again stated words to the effect “y'all acting like we done
something,” to which Officer Russell responded “no, we just
need your info so that way you can help us, that's all.” Id. Soon
after, Officer Russell again asked “were you two fighting each
other,” to which Plaintiff responded “no.” Id. at 5:45.
Approximately thirty seconds later, at 7:34 p.m., Officer
Tolone directed Plaintiff to stand up and turn around, quickly
patted him down, and informed Ms. Goldych “you're gonna
get detained too dear.” Dkt. No. 77-17 at 4:34. Officer Tolone
then told Plaintiff “you're being detained right now” and
placed Plaintiff in handcuffs. Id. at 4:53. Officer Tolone
walked Plaintiff over to a police vehicle and said “stand right
here; don't move,” before unlocking the vehicle and directing
Plaintiff into the backseat. Id. at 5:10.
The Responding Officers proceeded to put up police tape
around the scene. See, e.g., Dkt. No. 77-16 at 7:43.
At approximately 7:38 p.m., Officer Russell remarked to
Officers Tolone and Cecile that “we don't have anything to
put out a point for, except for it was a black man.” Id. at 9:54.
Officer Tolone responded, “it's the guy we have in the car, I
can almost guarantee it,” Dkt. No. 77-17 at 8:27, and Officer
Cecile agreed, saying “it's definitely him.” 5 Dkt. No. 77-15
at 1:41.
At approximately 7:39 p.m., Officer Tolone asked various
officers “have we started a canvas yet guys?” Dkt. No. 77-17
at 9:54. Officer Russell responded “yeah, we'll do that right
now. I wish we would have got those people that were ...”
and gestured down the sidewalk in the direction Ms. Bailey
and her siblings had walked. Dkt. No. 77-16 at 11:27. At
approximately 7:40 p.m., the Responding Officers spoke with
two non-party officers who arrived after they did. See, e.g.,
Dkt. No. 77-17 at 10:14. One of the non-party officers asked
“what's up with the guy with the busted lip,” to which Officer
Tolone responded “yeah, I'm thinking that's gonna, like you
said, that's gonna be our guy.” Id.
*4 At approximately 7:41 p.m., Officer Cecile called the
Criminal Investigations Division of the Syracuse Police
Department (“CID”). Dkt. No. 77-15 at 4:55. Officer Cecile
reported that “we've got possible suspects, I don't know,
they're totally drunk, I don't know if someone wants to show
up down here or not.” Id. at 5:35. During the course of this
call, Officer Cecile asked Officer Russell for the name of “the
guy, the suspect ... the guy that we got detained right now,”
and then provided Plaintiff's name as “the possible suspect.”
Id. at 8:19.
At approximately 7:45 p.m., Officer Russell asked Officer
Tolone, “did anyone contact those people back,” Dkt. No.
77-16 at 17:21, presumably again in reference to Ms. Bailey
and her siblings, to which Officer Tolone responded that
he tried but they did not want to meet, Dkt. No. 77-17 at
15:51. Officers Tolone and Russell then canvased the area for
additional eyewitnesses, without success. See, e.g., Dkt. No.
77-55 at ¶ 76; Dkt. No. 77-17 at 18:30.
At approximately 7:47 p.m., seemingly while on hold with
CID, Officer Cecile stated to other officers on the scene that
“I'm just going to call back the [911] caller, because they
obviously saw it, and see if they want to talk and give us the,
uh, a statement of what happened, once I'm done with CID.”
Dkt. No. 77-15 at 10:57. After the call with CID resumed,
Officer Cecile reiterated to the person with whom he was
speaking that “he's totally, he's totally wasted, so how much
that would do, I don't know” before saying words to the effect
that he would “try and give the [911 caller] a call” and “see
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if she witnessed who did it ... and maybe she'll give us a
statement.” Id. at 12:39.
At approximately 7:50 p.m., Officer Cecile again informed
one of the other officers at the scene that he was going to
contact the 911 caller “to see if they could give us a statement
since they're all wasted, and then, you know, to [see] who hit
him with it, because obviously they saw the whole thing.” Id.
at 14:16. Officer Cecile then spoke with Ms. Bailey and asked
if she could provide “an ID of who the suspect is, because
right now all we've got is three people that are intoxicated,
nobody's owning up to hit, hitting this, uh, gentlemen with
a stick.” Id. at 14:50. Officer Cecile went on to ask “do you
remember what the, uh, what the guy that hit him with a stick
was wearing,” before repeating “a green shirt.” Id. at 16:01.
Officer Cecile then clarified “the guy that got knocked out
was, like, in his mid to late 20s, and it was, like, an older
guy, like 35 to 40, that hit him?” Id. at 16:43. After the call
ended, Officer Cecile shared with other officers on the scene
that he had spoken with Ms. Bailey, and said that Mr. Bailey
had said the assailant “was wearing a green shirt, he's got a
green vest on,” to which another officer responded “yeah, it's
this guy,” presumably in reference to Plaintiff. Id. at 17:20.
Officer Cecile then tried to call Ms. Bailey again, and asked
if she would come back to identify the person she had seen
fighting with Mr. Jones. Id. at 18:30. Ms. Bailey did not agree
to do so, in part because she had just “seen a fight, I don't want
nobody looking for me or anything.” Id. at 18:45.
While officers identified numerous video cameras that could
contain footage of the incident, no such footage was retrieved.
See, e.g., Dkt. No. 77-16 at 24:15; Dkt. No. 77-55 at ¶¶ 86,
134, 316, 383-84.
Shortly before 8:00 p.m., Plaintiff was removed from the
police vehicle to be photographed by a non-party officer. Dkt.
No. 77-16 at 31:11; Dkt. No. 77-55 at ¶ 113. During this
process, Officer Russell walked over and asked Plaintiff “you
being good Robert” and “how'd that thing go the other day
when you shit your pants?” 6 Id. at 31:22. Plaintiff appears
to have mumbled that he “got drunk.” Id. at 31:29. The non-
party officer photographing Plaintiff directed him to ball his
hands up behind his back. Id. at 31:38. After leaning down
to examine Plaintiff's hands and knuckles—presumably for
blood or injuries—this officer did not photograph them. Id.
*5 Plaintiff then exclaimed “I want to know what I did,”
to which Officer Russell responded “we're trying to figure
that out too.” Id. at 31:50. As the non-party officer placed
Plaintiff back in the vehicle, Officer Russell asked Plaintiff
“you nervous,” to which he responded “yeah.” Id. at 32:00.
3. Criminal Investigations Division
Officers Tolone and Cecile transported Plaintiff and Ms.
Goldych from 941 James Street to CID. Dkt. No. 77-6 at 5.
Officer Tolone placed Plaintiff in a holding room, where he
remained detained for several hours. Dkt. No. 77-8 at 3.
At some point during the hours that Plaintiff was detained at
CID, Detective Brimmer and a non-party detective appear to
have traveled to 941 James Street to investigate the scene. See
Dkt. Nos. 77-13, 77-19. Detective Brimmer's police report
indicates that he also reviewed the 911 call notes at this
time. Dkt. No. 77-19 at 2. The non-party detective assisting
Detective Brimmer in canvassing the apartment building
documented that one of the witnesses “stated that he did
not know the men who drank in the parking lot, but stated
that he observed three men and one woman drinking beer in
the lot this afternoon.” Dkt. No. 77-13 at 2. Once back at
CID, Detective Brimmer tried to speak with Ms. Goldych,
but determined that she “appeared extremely intoxicated” and
“was unable to speak due to apparent intoxication.” 7 Dkt.
No. 77-19 at 2. Detective Brimmer's police report states that
“[b]ased on the 911 caller[’]s description of the incident”
and Plaintiff's presence at the crime scene, “he was being
considered a likely suspect.” Id. at 3.
Once Detective Brimmer returned to CID, he and Detective
Beauchine moved Plaintiff into a small interrogation room
at approximately 10:30 p.m. Dkt. No. 77-55 at ¶ 141; Dkt.
No. 77-21 at 0:00. Plaintiff remained in this room until he
was placed back in handcuffs at approximately 1:00 a.m. See
generally Dkt. No. 77-21. Shortly after 10:30 p.m., Detective
Brimmer read Plaintiff his Miranda rights. Dkt. No. 77-55
at ¶ 154. Plaintiff proceeded to speak with the Detectives.
In response to Detective Brimmer's initial question about
“[w]hat happened over there, man,” Plaintiff stated “[w]ell,
what happened -- my nephew got into it with some guy. You
know, and - - you know, they was fighting and stuff, you know.
And I'm drunk. You know what, hey, here I am. That's what
happened.” Dkt. No. 77-22 at 6:18-23.
*6 The parties dispute the extent of Plaintiff's intoxication
during the approximately two and half hours that he remained
in the interrogation room. Sometime after approximately 1:00
a.m. on May 7, 2019, when Plaintiff's booking process began,
his BAC was measured at 0.15 percent, or nearly twice the
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legal limit to operate a motor vehicle. Dkt. No. 77-24; see also
supra n.4. According to one of Defendants’ retained experts
(Robert L. Weisman, D.O.), the physiological effects of such a
BAC are that “[m]otor function, speech, and judgment are all
severely affected at this height of blood alcohol. Staggering,
and slurred speech, may be observed.” 8 Dkt. No. 77-52 at 10.
Based on Dr. Weisman's review of numerous record materials
and his examination of Plaintiff in June 2024, his expert
psychiatric report contains several other findings that are
relevant for purposes of summary judgment. See generally
id. First, Dr. Weisman determined that—when sober—“Mr.
Adams has deficits in his Miranda understanding, particularly
regarding legally acceptable deceptive police practices as
well as other specific aspects of remaining silent versus
talking to the police.” Id. at 7, 9. Based on certain of Mr.
Adams’ test scores—again, when sober—Dr. Weisman also
concluded that Plaintiff's “basic understanding of Miranda”
ranked in the eighteenth percentile of pretrial defendants. Id.
at 8-9. Defendants take the position in the Motion that “Dr.
Weisman's opinions are unrebutted.” Dkt. No. 77-56 at 20.
Beyond the extent of Plaintiff's intoxication, the parties
also dispute the voluntariness and significance of various
statements Plaintiff made during his interrogation by the
Detectives. In sum, the Detectives refused to accept Plaintiff's
version of events, and instead told Plaintiff that video
evidence, forensic evidence, and numerous witnesses all
established that he had fought Mr. Jones; Plaintiff just needed
to provide the details. See generally Dkt. No. 77-22. For
example:
Det. Beauchine: Okay. Hit the reset button. All right, okay.
Det. Brimmer: Why don't we start at the beginning and tell
the truth?
Plaintiff: That's the truth.
Det. Brimmer: No.
Det. Beauchine: No, it's not. Listen, listen. It's not. We can
do this over --
Plaintiff: Okay. Then you tell the truth, then. Okay?
Det. Beauchine: I don't need to tell the truth. You're the one
that needs to --
Plaintiff: Well, well, I'm telling you what I -- I'm telling you
what as far as I know.
Det. Brimmer: You were there. You were part of this.
Det. Beauchine: Yes.
Det. Brimmer: So you should --
Plaintiff: That's what I'm saying.
Det. Brimmer: -- you should know, then.
Plaintiff: Okay. That's what I'm saying. Okay, I'm trying to
tell y'all what happened. You telling me I'm lying.
Det. Beauchine: Well, let me put it to you like this. Okay?
Plaintiff: Oh, man. That --
Det. Beauchine: We got several people saying that you, all
right, got into an argument with this guy, and that you
hit him with a stick. All right? Just hear me out. Hear me
out. Okay? And that you hit him with a stick, and that
you hit him so hard that he got knocked out and went to
the ground.
Plaintiff: No.
Det. Beauchine: And so we're trying to verify whether or
not you intentionally hit him --
*7 Plaintiff: No. No, no, no, no, no.
Det. Beauchine: -- because you're a predatory person who
wants to go out there and hurt people and do bad things
to people, or if this is just a family argument that went
awry and --
Plaintiff: No.
Det. Beauchine: Okay.
Det. Brimmer: He ended up falling and hitting his head or
something.
Det. Beauchine: Right. And that's exact --
Plaintiff: Oh, no.
Det. Beauchine: -- that's (indiscernible).
Plaintiff: No.
Det. Beauchine: Okay. That's what we're facing, so did
-- was this something where you are a predator? You
intentionally attack people with things --
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Plaintiff: No.
Det. Beauchine: -- or whatever -- whatever you have
available to you? Or is this just something that just --
Plaintiff: I don't hurt nobody.
Det. Beauchine: -- listen, listen. Or is this something where
you, a couple guys are having a couple drinks and some
shit is said, and it's a family matter and shit went south,
and it was more of an accident than anything else, or are
you intentionally going around doing stuff like this? This
is --
Plaintiff: No.
Det. Beauchine: Okay. Which of the --
Plaintiff: No.
Det. Beauchine: -- which of the two is it?
Plaintiff: Nothing. Not one.
Det. Beauchine: No, no. Which -- no, no, no. I'm --
Plaintiff: I just happened to be there.
Det. Beauchine: You didn't just happen to be there. Okay?
Plaintiff: I didn't even hit the guy.
Det. Beauchine: Not with your hand.
Plaintiff: I hit nobody.
Det. Beauchine: You say not with your hands, because
you're showing us your hands. We know that. All right?
We know that.
Det. Brimmer: Listen, it was a mistake, and you didn't mean
for him to get hurt like that, that's a big difference than
if you go out there trying to hurt people.
Plaintiff: I ain't hit him.
Det. Brimmer: It's a huge difference.
Plaintiff: I didn't. Man, I swear to God I didn't. I didn't.
Det. Brimmer: It's a huge difference.
Plaintiff: I just happened to be there.
Det. Brimmer: No.
Plaintiff: I witnessed the thing.
Det. Brimmer: That story is not going to fly.
Det. Beauchine: Right. When people --
Det. Brimmer: It's not going to hold up.
Det. Beauchine: -- when people see the video and they talk
to someone --
....
They're going to see you in a certain fashion. And that's
without you saying anything, right? So if you give your
side of the story, and give your thoughts, and what was
going through your head at the time, listen, it puts people
in your perspective and in your shoes. Now, it doesn't --
and here's what I would say. It --
Plaintiff: I didn't do nothing.
Det. Beauchine: Hold on, listen to me. It doesn't always
make it right.
Plaintiff: I'm telling you. I didn't do this.
Det. Beauchine: People will understand if you put them in
your shoes, and you can only do that by talking.
Plaintiff: I don't give a --
Det. Beauchine: By telling us.
Plaintiff: Well, I'm telling you.
Det. Beauchine: Yeah.
Plaintiff: I'm telling you how it happened. Okay? I didn't --
Det. Beauchine: Were you shooing him away with the stick,
or did you mean to hurt him with the stick?
Plaintiff: No. No.
Det. Beauchine: What were you doing?
*8 Plaintiff: Wait a minute. You put -- you put words --
Det. Beauchine: No, no, no. I'm asking you. It's a question.
Det. Brimmer: We're trying to get to the --
Plaintiff: -- you're putting words in my mouth.
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Det. Brimmer: -- we're trying to get to the bottom of this.
Plaintiff: I'm telling you. Charles was fighting this guy.
Okay? Next thing I know --
Det. Beauchine: We're past that. We're past that. Alright?
We're past that. We know.
Plaintiff: And --
Det. Beauchine: We're past that. All right? Listen, relax.
Det. Brimmer: Just help us understand.
Det. Beauchine: Help us understand what happened. All
right? Between you and Charles.
Det. Brimmer: I mean, you got a wound on your face. That
could be a defensive wound, you know. It could --
Plaintiff: No. I ran into a tree being drunk.
Det. Beauchine: Okay. So is it safe -- how often do you
drink?
Plaintiff: Hmm? Every day.
Det. Beauchine: Okay. Could this be --
Plaintiff: All day. (laughs)
Det. Beauchine: -- could this -- listen, could this be a
mistake between you and Charles --
Plaintiff: No.
Det. Beauchine: -- because you were intoxicated and --
Plaintiff: No, no, no no.
Det. Beauchine: -- he was intoxicated?
Plaintiff: No, no, no, no, no, no, no. No, no, no, no. Really,
me and Charles ain't got no problem at all.
Det. Beauchine: Well, you did tonight.
Plaintiff: No. Hmm-mm.
Det. Beauchine: You did.
Plaintiff: No. No. No. Huh-uh.
Det. Beauchine: You might not want to think that you might
have had a problem, but --
Plaintiff: No, man.
Det. Beauchine: -- you get -- you had a problem with him
tonight.
Plaintiff: No.
Det. Beauchine: Or he had a problem with you, and you
were defending yourself, tell us.
Plaintiff: No, no, no, no.
Det. Brimmer: Did he start talking about Vanessa and upset
you?
Plaintiff: No.
Det. Brimmer: No?
Det. Beauchine: You had a problem with him tonight.
Plaintiff: Me and Vanessa had walked up. They happen to
over sitting -- sitting down, drinking. And still we was
drinking. Okay, next thing I know, they fighting. Really.
Really, man. Period.
Det. Beauchine: Was this an accident or did you mean to
hurt him?
Plaintiff: Man -- I didn't hurt him.
Det. Beauchine: You meant to hurt him?
Plaintiff: I never hurt him at all.
Det. Beauchine: It was an accident?
Plaintiff: Why do you -- why are you trying to put words
in my mouth? Okay? Huh?
Det. Brimmer: We're not trying to. We just want to get to
the bottom of this.
Plaintiff: Man, where -- well, where the bottom -- we're at
the bottom of [sic]. I was telling you.
Det. Brimmer: We're just going in circles.
Plaintiff: I didn't do nothing. I was a witness. That don't --
this they got --
Det. Brimmer We're just going in circles here....
Id. at 51:2-59:19.
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During the interrogation, Plaintiff's cellular phone rang. The
Detectives instructed Plaintiff not to answer the phone, to
turn it off, and to place it on the table. Id. at 27:6-20. At
approximately 11:14 p.m., just prior to the first break taken
during the interrogation, Detective Brimmer said that he
was going to take Plaintiff's phone outside the room. Id.
at 60:24-25; see also Dkt. No. 77-21b at 13:50. Plaintiff
responded, “[m]an, give me my phone,” to which Detective
Brimmer replied “[n]o, it's going to sit out here.” Dkt.
No. 77-22 at 61:1-3. During this break, Plaintiff is visible
talking to himself and unsuccessfully trying to open the
interrogation room's door, which appears to have been
deadbolted from the outside. Dkt. No. 77-21b at 14:00-17:00.
Plaintiff subsequently informed the Detectives that he was not
currently working because he had a “dual diagnosis” and that
his psychiatrist, counselor, and primary care doctor were all
at the same local healthcare provider. Id. at 102:16-103:16;
see also United States v. Moran, 778 F.3d 942, 951 (11th Cir.
2015) (“[D]ual diagnosis patients are those suffering from
both substance abuse and acute mental disorders.”).
*9 Plaintiff contends that he denied assaulting Mr. Jones
nearly 200 times before the Detectives coerced him into
providing a false confession around midnight. Dkt. No. 85-2
at ¶¶ 570-71. During the subsequent break, Plaintiff can be
heard saying “I'm going to jail for something I didn't do,” 9
Dkt. No. 77-21c at 8:49, and further talking to himself, see,
e.g., id. at 9:10, 11:23.
Defendants contend that Plaintiff's eventual confession was
not coerced and not false. Dkt. No. 77-56 at 9, 25.
Presumably to support this position, Defendants requested
that Dr. Weisman opine on Plaintiff's capacity during the May
2019 interrogation. Dkt. No. 77-52 at 11, 12. As relevant
here, Defendants requested that Dr. Weisman determine
whether Plaintiff had the “proper requisite intellectual
capacity and base intelligence level” and the “proper requisite
psychological state and mental health capacity” to have:
....
(c) understood the significance and context of the questions
being asked regarding the assault of Charles Jones; ...
....
(f) understood [the] significance and context of his answers
to those questions with respect to the assault of Charles
Jones; ....
(g) observed the events for which he was being questioned,
illustrated the ability to recall those same observations,
and provided answers based upon those observations
and recollections (even if, under certain circumstances,
Plaintiff was deceptive in his response); ....
(h) [had] the ability (or exhibited the ability) to
communicate his answers truthfully, effectively, clearly
and coherently; ..... and
(i) provided the answers of his own accord.
Id. at 11-12, 12-13. In response to every one of these items,
Dr. Weisman concluded:
Initially, yes, but towards the latter
part of the ~1.5-hour interview, Mr.
Adams being under the combination of
duress, fatigue, limitations of his legal
knowledge, and some level of alcohol
intoxication, became emotionally and
cognitively distressed, resigned, and
compelled to offer the narrative of the
crime being demanded of him.
Id. at 11-12, 12-13.
4. Police Reports
a. Detective Brimmer
According to the arrest report prepared by Detective Brimmer,
he and Detective Beauchine arrested Plaintiff at 12:00 a.m.
on May 7, 2019. Dkt. No. 77-23. The arrest report listed
Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described
his apparent condition as “Appeared Normal.” Id. The arrest
report included criminal charges against Plaintiff. Id.
Detective Brimmer also prepared a police report regarding
events on May 6 and 7, 2019, including his telephone
conversation with Ms. Bailey. Dkt. No. 77-19. The parties
dispute what was said during this conversation on May 7,
2019.
According to Detective Brimmer's report, Ms. Bailey
corroborated certain key details of Plaintiff's confession
during this conversation, including that the day before “she
observed 2 unknown black males yelling at each other[;]”
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“one male punched the other, and the one that got punched
was hitting the other with a stick[;]” and “one of the subjects
went down to the ground unresponsive and the other male
was saying something about his nephew[.]” Id. at 3. Detective
Brimmer also wrote that Ms. Bailey stated that “she called
911 but walked away prior to EMS and Police arrival.” Id.
*10 According to a sworn affidavit provided by Ms. Bailey,
she never said many of the statements Detective Brimmer
attributed to her, including that she “never used the word
‘punch’ because I did not see either of the two individuals
punching[;]” “never told Detective Brimmer that the man
helping the victim was the who hit the victim. The person who
hit the victim ran away. The victim was unresponsive and the
older man told me the victim was his nephew. The older man
asked me to call 911[;]” “never told Detective Brimmer that
the older man was involved in this fight[;]” and “[t]he police
arrived while I was on the phone with 911 and I spoke to a
lady officer. I did not tell Detective Brimmer that I left before
the police arrived.” Dkt. No. 85-10 at ¶¶ 6-9. Ms. Bailey
further stated that Detective Brimmer's report “contains false
statements. I never told him that I witnessed anyone punching.
I never told him that the older man who called the victim his
nephew was involved in the fight. I never told him that I left
before the police arrived.” Id. at ¶ 10.
b. Officer Cecile
Officer Cecile's police report, dated May 6, 2019, listed
Plaintiff as 55 years old, 5’7” tall, 160 pounds, and described
his apparent condition as “Impaired Alcohol.” Dkt. No. 77-6
at 2.
In the narrative portion of his report, Officer Cecile stated that
“while in route, dispatch notes read that there was a fight in
progress between two people with one person [ ] unconscious
on the ground, the other person was wearing a green sweat suit
and there is a very large stick involved.” Id. at 5. With respect
to Plaintiff's detention, Officer Cecile wrote “[b]ased on the
notes from dispatch and lack of cooperation for Goldych and
Adams, both were detained at this time.” Id. As for his call
with Ms. Bailey, Officer Cecile wrote:
Bailey stated that she witnessed the
fight between the victim and suspect ...
Bailey stated that the suspect was an
old black male wearing a green jump
suit. Bailey stated that she saw the
male in the jump suit dodge a punch
from the victim and then swing the
large stick at [t]he victim's head which
connected and knocked him to the
ground.
Id. As for Plaintiff's appearance, Officer Cecile described him
as “an older black male in a grayish/teal puffy jacket and green
pants[.]” Id.
c. Officer Tolone
Officer Tolone's police report, dated May 6, 2019, listed
Plaintiff as 55 years old, provided no height or weight, and
described his apparent condition as “Normal.” Dkt. No. 77-8
at 4.
In the narrative portion of his report, Officer Tolone wrote
that “[p]rior to our arrival dispatch advised us that our caller,
Jordan Bailey who refused to speak with us regarding this
incident, stated to the call taker that she saw two males
fighting, one wearing a green jump suit, and then saw
someone get struck with a stick and then saw the man on
the ground.” Id. at 2. With respect to Plaintiff's detention,
Officer Tolone wrote that “Adams was detained at this time
for suspicion that he was in deed [sic] the suspect in this
incident however, when we initially arrived on scene Adams
stated there was another male that started a fight with Jones.”
Id. As for Plaintiff's appearance, Officer Tolone wrote that
“Adams, at the time contact was made, was wearing green
pants and a grey / green vest.” Id.
d. Other Police Reports
Officer Russell prepared a short report, also dated May 6,
2019, with a brief narrative that does not mention Ms. Bailey
or Plaintiff, or Officer Russell's interactions with either of
them. Dkt. No. 77-7 at 2.
Following Plaintiff's interrogation at CID, a non-party
officer photographed Plaintiff in the interrogation room
and collected his clothing early in the morning of May 7,
2019. Dkt. No. 77-10. This officer catalogued Plaintiff's
clothing as consisting of a “Black winter coat[,]” “Grey pants
with belt[,]” “Blue/green/white striped shirt[,]” “Blue Puma
sneakers[,]” and a “Baseball Hat (Grey, green Bird Game
logo)[.]” Id. at 3.
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5. Criminal Prosecution
In the weeks after the events of May 6, 2019, Officer Cecile,
Detective Brimmer, and Ms. Bailey testified before a grand
jury in Onondaga County. Dkt. No. 77-25. The grand jury
subsequently indicted Plaintiff 10 for (i) assault in the first
degree in violation of N.Y. Penal Law § 120.10(1); (ii)
assault in the second degree in violation of N.Y. Penal Law
§ 120.05(2); and (iii) criminal possession of a weapon in the
third degree in violation of N.Y. Penal Law § 265.02(1). Dkt.
No. 77-26 at 1. Plaintiff remained detained in jail pending
trial. Dkt. No. 77-55 at ¶¶ 309, 382.
*11 Mr. Jones died in the hospital on August 18, 2019.
Dkt. No. 85-15. A medical examiner ruled Mr. Jones’ death a
homicide as a result of complications from being struck in the
head “with a large stick containing imbedded nails.” Id. at 1,
2. After Mr. Jones’ death, it appears that the criminal charges
against Plaintiff could have been increased from assault to
manslaughter. 11 Dkt. No. 77-55 at ¶¶ 372-74.
On August 19 and 20, 2019, ADA Michael Manfredi
offered Plaintiff, through his court-appointed counsel, “a
plea to Manslaughter in the first with a sentence of 12
years Determinate.” Dkt. No. 77-28 at 2, 1. On October 8,
2019, ADA Manfredi reiterated to Plaintiff's court-appointed
counsel that the “[o]ffer remains Man 1 st with 12 years
determinate.” Id. at 1.
On January 9, 2020, Plaintiff's court-appointed counsel made
a bail application on behalf on Plaintiff, in part on the basis
that:
We have had an opportunity to
review much of the evidence against
[Plaintiff] and the defense believes
there is significant evidence that
the People have the wrong man
in jail. Despite what the People
have presented as a “confession”, the
defense believes that the evidence
will show that it is a psychologically
coerced false confession. There is
no indication there are any witnesses
identifying him at the scene. In fact the
opposite. The People's case is weak.
Dkt. No. 77-39 at ¶ 22.
Soon after, an investigator from the DA's Office contacted
Ms. Bailey. Dkt. No. 77-34 at 1. On January 16, 2020, Ms.
Bailey provided a voluntary affidavit that stated in relevant
part:
[Investigator Tim Galanaugh] asked if I would be willing
to come down to his office and meet with Mr. Coolican, the
prosecutor, and see if I would watch some video footage
that they had. He also made me aware that the police had
made an arrest of an individual the day of the [May 6, 2019]
incident. I told him that I would be willing to come down
and speak to them, and help in any way because I was
unaware that the victim had died.
Back in May, when everything had happened, I initially
called 911 for a man that was trying to assist the victim.
That man that I am speaking about was African American
and told me that the victim was his nephew. I stayed on
the scene with my siblings until the police officers arrived.
I gave information to the 911 person telling them that the
suspect that was responsible had run down James Street
towards downtown. I told the dispatch person that the
suspect was African American and over 6 foot tall and
was wearing dark green. As the officers showed up they
started talking to the older guy that was kneeling next to
his nephew. They wanted him to step back from the victim.
I told the female officer that he had nothing to do with it.
There was a[ ]lot going on at the time and I didn't want to
get more involved so I walked away with my siblings. At
the time, I felt that I had cooperated enough by reporting it
and I didn't want to involve myself or my siblings in what
appeared to me at the time to be a fight between two guys
that ended with one being knocked out with a stick. When
the police officers contacted me 30 minutes or so later to
see if I would come back to the scene to try to identify
someone, I didn't want to get involved. I was scared that
it would jeopardize my safety and my siblings[’] safety so
I told the police officers that I didn't want to do anymore
than what I had done to help already.
*12 ....
This is what I remember about the incident today: That I
had been leaving Bryant and Stratton on James Street and
observed two African American men that appeared to be
about to fight. Me and my siblings w[ ]ere almost walking
right through where this was occurring. The victim had a
long branch in his hand and starts to run up on the suspect.
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As the victim tries to swing on the suspect, the suspect
grabs the stick and snatches the stick from the victim. The
suspect then swings the stick at the victim with one hand
towards his upper body. I couldn't tell where it connected
or if he followed up with an elbow. All I seen is the victim
stumble and drop to the ground. Suspect then tosses the
stick. The suspect then goes to the pa[ ]nts pocket of the
victim, takes a cell phone out and smashes it onto the
pavement. Then the suspect takes off running down the
sidewalk on James Street towards downtown.
I didn't see where the suspect had run to because I then
focused my attention on the victim on the ground. That's
the same time when I noticed the older man get off the
stones by the Chestnut Apartments sign and walk over to
his nephew to check on him. I remember telling him that he
should help get him up off the ground. The victim wasn't
moving and looked like he had been knocked out, but after
a few moments of looking at him more closely I told the
older man that he, the victim, didn't look so good. That[’]s
when the uncle asked me to call 911, so I did. I stayed with
the uncle until the police arrived, but like I said, I walked
off shortly after with my siblings because we didn't want
to get more involved.
Today, at around 1045 AM, I met Mr. Coolican and
Investigator Galanaugh at the D.A.’s Office. They had me
watch some video footage from one of the officer's body
cameras when they showed up at the scene. In the video
I saw the victim on the ground and the African American
man, who told me the victim was his nephew, kneeling next
to him wearing a gray baseball hat. You can hear me talking
in the video telling the female officer that the victim was
hit with the stick.
I showed Mr. Coolican w[here] the victim's cell phone can
be seen in the video laying on the pavement, smashed. I
was told by Mr. Coolican and Investigator Galanaugh that
the person that was arrested in this incident, was the man
that told me that the victim was his nephew. The person that
the police arrested was not the suspect that I saw fighting
with the victim, and causing the victim to be hurt with the
stick. I saw that suspect run from the scene after smashing
the victim's phone on the ground.
Id. at 1-2; see also Dkt. No. 77-55 at ¶¶ 380-81.
Plaintiff was not released from jail until February 12, 2020,
more than nine months after his arrest on May 6, 2019. Dkt.
No. 77-55 at ¶ 382. The charges against Plaintiff were not
dismissed until September 15, 2020. Id. at ¶ 404.
a. Plaintiff's Capacity
On February 13, 2020, the judge presiding over Plaintiff's
criminal prosecution ordered Plaintiff's capacity evaluated
pursuant to New York Criminal Procedure Law § 730.
Dkt. No. 77-35 at 1 (stating that “the Court being of the
opinion that the defendant may be an incapacitated person” an
examination is ordered “to determine whether said defendant,
as a result of mental disease or defect, lacks capacity to
understand the proceedings against him or to assist in his own
defense”).
*13 Two physicians subsequently examined Plaintiff and
issued their reports on August 27, 2020. Dkt. No. 77-55 at ¶¶
391-92, 395. As relevant here, the first physician concluded
that “although suffering from Alcohol Use Disorder,”
Plaintiff “at the time of this evaluation, did not as a result of
mental disease or defect lack the capacity to understand the
proceedings against him or to assist in his own defense.” Id. at
¶ 394. The second physician similarly concluded that Plaintiff
“is not currently suffering from a mental illness which would
cause him to lack the capacity to understand the proceedings
against him or to assist his counsel in his own defense” and
that Plaintiff, “at the time of this evaluation, did not as a result
of mental disease o[r] defect lack the capacity to understand
the proceedings against him or to assist in his own defense.”
Id. at ¶ 398.
6. Additional Investigation by CID
On January 29, 2020, prior to Plaintiff's release from jail, two
non-party detectives returned to 941 James Street to obtain
video footage of the incident that had occurred nearly nine
months earlier. Id. at ¶ 383. Their investigation obtained no
such footage, id. at ¶ 384, and determined that none of a dozen
nearby businesses retained such footage for longer than three
months, Dkt. No. 77-31 at 2. The two detectives also made
efforts at this time to locate individuals previously mentioned
by Plaintiff and Ms. Goldych, including “the ‘Pete’ mentioned
in BWC [footage from the Responding Officers], but without
success.” Dkt. No. 77-55 at ¶¶ 385-86.
Forensic evidence recovered from items collected at 941
James Street—apparently including multiple drink containers
as well as Mr. Jones’ smashed phone—was linked to an
individual whose first name is Pierre. Dkt. No. 85-1 at ¶ 56;
Dkt. No. 85-4; Dkt. No. 85-14 at 9, 28; Dkt. No. 85-11 at 28. A
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non-party detective testified during his deposition that “[w]e
do have forensic evidence indicating that he may have been
present at the time of the incident or in the hours preceding
it.” Dkt. No. 77-50 at 123:24-124:9.
A September 2020 internal memorandum from the Syracuse
Police Department (“Memo”) states that such evidence
“strongly suggests, at a minimum, Pierre [ ] was onscene
at some point that day [May 6, 2019], and drinking with
the group” and notes that Pierre “is listed as much bigger
than Adams ([ ] - 6’00”, 220 lbs.), and closer resembles
that of the suspect description initially provided to 911 by
Jordan Bailey.” Dkt. No. 85-11 at 28. When provided with the
opportunity to speak with CID, Pierre apparently declined to
do so. Id. Another internal document from the Syracuse Police
Department indicates that while Pierre had been identified as
“a person of interest,” “there is no proof beyond a reasonable
doubt suggesting [Pierre] is the primary suspect at this time.”
Id. at 7-8. The Memo notes that the investigation of Mr. Jones’
death “will now be considered ‘unsolved’.” Id. at 30.
C. Prior Proceedings
1. Citizen Review Board
In April 2021, Plaintiff filed a complaint with Defendant
City's Citizen Review Board in connection with his arrest and
interrogation. Dkt. No. 85-11 at 14-21. The Syracuse Police
Department's Internal Affairs Division assigned a sergeant to
investigate Plaintiff's complaint and prepare a case report. Id.
at 1-13 (“Report”). The sergeant's investigation included an
interview with a deputy police chief. Id. at 8-9. The sergeant
included the following information from that conversation in
the Report:
I addressed the complaints made
by Mr. Adams of the false arrest
as well as being interviewed while
intoxicated. Deputy Chief [ ] was able
to explain there is case law which
supports interviewing a person who is
intoxicated. The only limitation to this
is if the person being interviewed is
intoxicated to the point of being in
a manic state. Deputy Chief [ ] also
informed me it is a matter of training
that detectives are trained on the
fact that interviewing an intoxicated
person is lawful, unless in this manic
state.... Therefore, the actions by [the
D]etectives during that interview were
lawful and proper.
*14 Id. at 9. The Report ultimately concluded that:
Mr. Adams[’] claim that he was
arrested and charge[d] for a crime he
did not commit is true. However, after
reviewing this case and based on the
evidence shown, there is no evidence
to show wrong doing on behalf of
any of the Syracuse Police Officers
involved. The interview conducted
by Det. Beauchine and then Det.
Brimmer was lawful and proper. There
was no violation of any rules and
regulations by Det. Beauchine or Det.
Sgt. Brimmer, or any officer. The basis
for Mr. Adams being charged with this
crime was due to his own admission
and the lack of cooperation from the
original eye witness. Therefore, this
complaint is unsubstantiated.
Id. at 12.
In the course of reaching these conclusions, the sergeant also
briefly spoke with the Detectives. Id. at 11-12. According to
Detective Brimmer, “Mr. Adams did not appear excessively
intoxicated during the interview” that began on May 6, 2019.
Id. at 11. Detective Beauchine similarly “stated [that] he
did not feel Mr. Adams was excessively intoxicated” during
the interview. Id. at 12. Detective Brimmer also shared that
“Mr. Adams would not have been under arrest without the
confession.” Id. at 11.
The sergeant, the sergeant's supervisor, a bureau chief, the
first deputy chief, and the chief of police are all listed as
March 2022 signatories to the Report. Id. at 13.
2. New York Court of Claims
Plaintiff previously filed a notice of claim in the New
York Court of Claims. Dkt. No. 63-1. Defendants examined
Plaintiff on January 22, 2021. Dkt. No. 77-43.
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D. Procedural History
Plaintiff commenced this action in June 2021. Dkt. No. 1.
Defendants moved to dismiss the Complaint in July 2021.
Dkt. No. 7. Plaintiff voluntarily dismissed his claims against
one individual defendant and otherwise opposed the motion.
Dkt. Nos. 9, 16.
In March 2022, United States Senior District Judge Lawrence
E. Kahn partially granted and partially denied Defendants’
motion to dismiss. Dkt. No. 19. Judge Kahn observed
that “[i]f the facts alleged by Plaintiff are true, Plaintiff's
detainment amounts to a substantial miscarriage of justice.”
Id. at 1. Judge Kahn dismissed Plaintiff's second, sixth,
seventh, and ninth claims, as well as another individual
defendant, and denied the balance of Defendants’ motion. Id.
at 1-18. Discovery proceeded, with the parties requesting and
receiving numerous extensions. See generally Docket Sheet.
In January 2024, United States Magistrate Judge Mitchell J.
Katz denied Plaintiff's motion to amend the Complaint to add
two individual defendants, but granted Plaintiff's request to
dismiss his claims against three other individual defendants.
Dkt. No. 64.
The Motion was fully submitted in April 2025. Dkt. Nos. 77,
85, 90.
E. Plaintiff's Claims
Plaintiff's remaining claims, 12 see Dkt. No. 19, are as
follows: pursuant to Section 1983, (i) false arrest against
the Individual Defendants, Dkt. No. 1 at ¶¶ 41-47; (ii)
malicious prosecution against Defendants, id. at ¶¶ 63-71; (iii)
fabricated evidence against Defendants, id. at ¶¶ 72-80; (iv)
a Monell claim against Defendant City, id. at ¶¶ 52-62; and,
pursuant to New York law, (v) false arrest against Defendants,
id. at ¶¶ 91-93; and (vi) negligent supervision, etc., against
Defendants, id. at ¶¶ 97-100.
III. STANDARD OF REVIEW
*15 Summary judgment is properly granted only if, upon
reviewing the evidence in the light most favorable to the
nonmovant, there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Richardson v.
Selsky, 5 F.3d 616, 621 (2d Cir. 1993). A court first determines
“whether the evidence presents a sufficient disagreement to
require submission to a [factfinder] or whether it is so one-
sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). “When analyzing a summary
judgment motion, the court ‘cannot try issues of fact; it can
only determine whether there are issues to be tried.’ ” Galeotti
v. Cianbro Corp., No. 12-cv-00900, 2013 WL 3207312, at *4
(N.D.N.Y. June 24, 2013) (quoting Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 36-37 (2d Cir. 1994)).
Defendant, in seeking summary judgment, “bears the burden
of establishing that no genuine issue of material fact exists
and that the undisputed facts establish [its] right to judgment
as a matter of law.” Rodriguez v. City of New York, 72 F.3d
1051, 1060-61 (2d Cir. 1995) (citation omitted). To determine
whether a genuine issue of material fact exists, a court must
resolve all ambiguities and draw all reasonable inferences
against the moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986); accord Gibbs-Alfano v. Burton, 281
F.3d 12, 18 (2d Cir. 2002). A “material” fact is one that
would “affect the outcome of the suit under the governing
law,” and a dispute about a genuine issue of material fact
occurs if the evidence is such that “a reasonable [factfinder]
could return a verdict for the nonmoving party.” Anderson,
477 U.S. at 248, 106 S.Ct. 2505; accord R.B. Ventures, Ltd.
v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court should
“grant summary judgment where the nonmovant's evidence is
merely colorable, conclusory, speculative or not significantly
probative.” Schwimmer v. Kaladjian, 988 F. Supp. 631, 638
(S.D.N.Y. 1997) (citing, inter alia, Anderson, 477 U.S. at
249-50, 106 S.Ct. 2505).
IV. DISCUSSION
The Court addresses the parties’ specific arguments with
respect to the remaining claims below. Given the disputed
factual record as to many aspects of Plaintiff's claims, the
Court finds it appropriate to reiterate the Second Circuit's
guidance in another case involving Section 1983 claims for
false arrest, malicious prosecution, fabricated evidence, and
related Monell liability:
We write because the district
court improperly granted summary
judgment to defendants. The record
before us reveals evidence from
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which a jury could find that certain
of the individual police officers
prepared a false report and initiated a
prosecution of plaintiff[ ] predicated
on this manufactured evidence. We
also write to emphasize a larger
issue raised by this case. Plaintiff[ ]
allege[s] that the defendant police
officers lied and fabricated evidence.
While we do not know whether the
accusations can be sustained, we do
know that such accusations must be
carefully reviewed. Lying is wrong,
and if the police lie while acting
in their official capacity, they also
violate the public trust. Courts must
ensure that such serious accusations
receive appropriate scrutiny lest our
Court appears to endorse such
official misconduct, which would
weaken the public's respect for the
administration of justice. In making
these remarks, we emphasize that we
have reached no conclusions about
whether the plaintiff[’s] accusations
can be substantiated. It will be for
a jury to determine at trial whether
plaintiff[ ] ha[s] proved [his] very
serious charges.
*16 Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 125 (2d
Cir. 1997). While the Court addresses the parties’ significant
factual disputes in detail below, it similarly reaches no
conclusions at this stage regarding whether Plaintiff will
ultimately be able to prove his surviving claims.
A. False Arrest under Section 1983 and New York law
“A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from
unreasonable seizures[,] is substantially the same as a claim
for false arrest under New York law.” Alexander v. City of
Syracuse, 132 F.4th 129, 156 (2d Cir. 2025) (alteration in
original) (quoting Kee v. City of New York, 12 F.4th 150, 158
(2d Cir. 2021)). And “[u]nder New York law, to prevail on
a claim for false arrest, a plaintiff must show that (1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement, and (4) the confinement was not
otherwise privileged.” Id. (quoting Ashley v. City of New York,
992 F.3d 128, 136 (2d Cir. 2021)). “Under both federal and
New York state law, probable cause is a complete defense
to a false arrest claim.” Carruthers v. Colton, 153 F.4th 169,
179 (2d Cir. 2025) (quoting Triolo v. Nassau Cnty., 24 F.4th
98, 106 (2d Cir. 2022)); see also Grice v. McVeigh, 873
F.3d 162, 166 (2d Cir. 2017) (“[Plaintiff]’s unlawful arrest
claim fails because his handcuffing was an ‘investigatory
detention’ (otherwise known as a ‘Terry stop’) that never
ripened into an arrest and was supported by reasonable
suspicion.”). “Probable cause to arrest a person exists if
the law enforcement official, on the basis of the totality of
the circumstances, has sufficient knowledge or reasonably
trustworthy information to justify a person of reasonable
caution in believing that an offense has been or is being
committed by the person to be arrested.” United States v.
Hawkins, 37 F.4th 854, 858 (2d Cir. 2022) (quoting United
States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990)).
As detailed earlier, after several minutes of questioning by
numerous officers, Plaintiff was handcuffed and put into the
back of a police vehicle in front of 941 James Street at
approximately 7:34 p.m. on May 6, 2019. See supra Section
II.B.2. Plaintiff was eventually transported to CID shortly
after 8:00 p.m., where he remained detained until his custodial
interrogation began at approximately 10:30 p.m. See supra
Section II.B.3. Plaintiff was held in the interrogation room
until approximately 1:00 a.m. on May 7, 2019, when he was
placed back in handcuffs and his booking process began. Id.
Plaintiff was then detained for more than nine months, until
his eventual release on February 12, 2020. See supra Section
II.B.5.
Plaintiff's opposition to the Motion does not challenge
his detention and questioning by officers prior to being
handcuffed at approximately 7:34 p.m. 13 See, e.g., Dkt.
No. 85 at 10; see also Dkt. No. 77-56 at 12-13. And
Defendants only seek summary judgment on the portions of
Plaintiff's false arrest claims that relate to his “pre-confession
detainment” and “post-confession arrest,” not his subsequent
months-long detention. Compare Dkt. No. 77-56 at 12, with
Dkt. No. 1 at ¶¶ 43, 92-93; see also Dkt. No. 7-2 at 13-14;
Dkt. No. 19 at 9-10. The Court thus focuses its analysis on
Plaintiff's detention at 941 James Street on May 6, 2019, his
formal arrest at CID on May 7, 2019, and the five or so hours
that he remained detained in between.
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1. Plaintiff's Detention at 941 James Street
*17 Defendants first contend that Plaintiff's false
arrest claims should fail because—although Plaintiff was
handcuffed, placed in the back of a police vehicle, transported
from his home to a police station approximately 30 minutes
later, and detained for hours—he was not actually under
arrest during this time. Instead, Defendants argue, the
approximately five-hour seizure of Plaintiff prior to his
formal arrest merely constituted an investigative stop and
only required reasonable suspicion. Dkt. No. 77-56 at 13,
16 (stating that “only reasonable suspicion was required” to
detain Plaintiff at 941 Adams Street and Defendants “had
ample reasonable suspicion to detain Plaintiff”); id. at 17,
18 (stating that “Plaintiff's pre-confession detainment at CID
was merely a continuation of his on-scene detainment” and
“the detainment was supported by reasonable suspicion”);
Dkt. No. 90 at 6 (stating that, as to Plaintiff's interrogation,
“Defendants maintain that Plaintiff was being detained
requiring only reasonable suspicion”).
This is a particularly weak argument given applicable law and
the facts of this case. 14 See, e.g., United States v. Lefebvre,
117 F.4th 471, 475 (2d Cir. 2024) (“There were several factors
present during th[is] seizure that, in many situations, this
Court would consider to be evidence that a seizure had indeed
become a de facto arrest. [Plaintiff]’s ‘freedom of movement
was restrained’ and ‘handcuffs were used.’ ... [T]he encounter
lasted roughly 20 minutes.... [Plaintiff]’s transportation to
a police station, instead of some of other reasonable third
location, would in many situations clearly establish that the
seizure had ripened into a de facto arrest.”) (citations omitted)
(collecting cases). The Court agrees with Plaintiff, Dkt. No.
85 at 8-9, that Defendants’ maximalist position regarding
their multi-hour detention of Plaintiff is unsupported by
Fourth Amendment jurisprudence, see, e.g., United States
v. Candelario, 486 F. App'x 907, 908 (2d Cir. 2012) (“It
is well established that ‘a police officer may briefly detain
an individual for questioning if the officer has a reasonable
suspicion that the individual is, has been, or is about to be
engaged in criminal activity.’ ”) (emphasis added) (quoting
United States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008)).
See also Grice, 873 F.3d at 167 (“In general, to determine
whether a Terry stop is so intrusive as to become an arrest, we
look to: [‘]the amount of force used by police, the need for
such force, and the extent to which the individual's freedom
of movement was restrained, and in particular such factors as
the number of agents involved, whether the target of the stop
was suspected of being armed, the duration of the stop, and
the physical treatment of the suspect, including whether or
not handcuffs were used.[’]”) (quoting United States v. Perea,
986 F.2d 633, 645 (2d Cir. 1993)).
By approximately 7:34 p.m., Plaintiff had already been
questioned for several minutes by multiple officers at the
scene. See supra Section II.B.2.a.ii. Plaintiff had informed
officers that he did not assault Mr. Jones (which Ms. Bailey
had also said); that the person who assaulted Mr. Jones had
run down James Street (which Ms. Bailey had said as well);
that the assailant was a black man named “Pete” (which
Ms. Goldych had also said); and that Plaintiff lived in
one of the apartments at 941 James Street. Id. Defendants
acknowledge that “the entire interaction was peaceful” prior
to Plaintiff's handcuffing, Dkt. No. 77-56 at 15, and Officer
Tolone testified that he did not feel his safety was at issue,
Dkt. No. 90-1 at ¶ 510. Throughout this time, Plaintiff did
not interfere with the investigation, continued answering
questions from officers, and made no effort to leave the scene.
See supra Section II.B.2.a.ii. Indeed, BWC footage shows
Plaintiff sitting down and speaking with Officer Russell
seconds before Officer Tolone directed him to stand up and
turn around. Dkt. No. 77-17 at 4:34. Officer Tolone then
handcuffed Plaintiff and informed Plaintiff that he was being
detained. Id. Officer Tolone proceeded to place Plaintiff into
the back of one of the multiple police vehicles parked in front
of Plaintiff's home. Id. at 5:08.
*18 Given this factual record, a reasonable juror could
conclude that Plaintiff was arrested at this time. Grice, 873
F.3d at 167. As the authority upon which Defendants rely,
Dkt. No. 77-56 at 15, makes clear, “[h]andcuffing is ordinarily
not incident to a Terry stop, and tends to show that a stop
has ripened into an arrest,” Grice, 873 F.3d at 167. See
also United States v. Newton, 369 F.3d 659, 676 (2d Cir.
2004) (“Handcuffs are generally recognized as a hallmark of
a formal arrest.”) (collecting cases). Moreover, Defendants
have failed to demonstrate the applicability of any of the
“certain unusual circumstances” when “handcuffing a suspect
to investigate a reasonable suspicion does not transform a
Terry stop into an arrest.” Grice, 873 F.3d at 168 (collecting
cases); see also Dkt. No. 77-56 at 15-16. As just discussed,
nothing in the record indicates concern about officer safety.
The balance of Defendants’ cursory arguments about why
Plaintiff purportedly needed to be handcuffed and placed in
the back of a police vehicle are unpersuasive. United States
v. Fiseku, 915 F.3d 863, 870 (2d Cir. 2018) (“[T]o satisfy
the reasonableness standard, officers conducting stops on less
than probable cause must employ the least intrusive means
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reasonably available to effect their legitimate investigative
purposes.”) (quoting Newton, 369 F.3d at 674).
2. Probable Cause
Defendants next argue that, regardless of when Plaintiff was
arrested, they had probable cause to arrest him for assault 15
within moments of arriving at 941 James Street. Dkt. No.
77-56 at 12-18.
This argument is also unconvincing, again given applicable
law and the facts of this case. “To assess probable cause,
a court considers only the facts ‘available to the officer at
the time of the arrest and immediately before it.’ ” Ashley,
992 F.3d at 136 (quoting Stansbury v. Wertman, 721 F.3d 84,
89 (2d Cir. 2013)). The parties largely agree on the basic
information known to the Responding Officers at the time
Plaintiff was handcuffed: 16 the 911 call notes, Plaintiff's
presence at the scene, and some blood on Plaintiff's lip. Dkt.
No. 77-56 at 13-14; Dkt. No. 85 at 14-15. The parties dispute
the factual contours of much of that information, however, as
well as its legal significance.
Defendants’ arguments regarding probable cause miss the
forest for the trees. When evaluating probable cause, the
Second Circuit has “consistently held, as relevant here, that
‘an officer may not disregard plainly exculpatory evidence.’
” Washington v. Napolitano, 29 F.4th 93, 107 (2d Cir. 2022)
(quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.
2006)). Defendants were repeatedly informed that the black
man who assaulted Mr. Jones was no longer present at the
scene. See supra Section II.B.2.a. Ms. Bailey told the 911
dispatcher that this third man had assaulted the victim and
had run off, but that the victim and his uncle were still there.
Id. The 911 call notes indicated that the suspect was “last
seen wearing” a green sweatsuit. Dkt. No. 90-1 at ¶ 18.
Ms. Bailey again told Officer Russell—as Officer Russell
stood next to Plaintiff, possibly within earshot of Officer
Cecile as he approached—that the assailant who hit Mr.
Jones was someone other than Plaintiff and had run off. See
supra Section II.B.2.a. Plaintiff separately told Responding
Officers that the assailant had run off, that his name was
Pete, and that he was a black man. Id. Ms. Goldych also
indicated that the man's name was Pete. Id. Defendants simply
ignore the existence of this third man, identified by multiple
eyewitnesses at the scene (and subsequently confirmed by
forensic evidence). See Dkt. No. 77-56 at 12-18; see also Dkt.
No. 77-50 at 123:24-124:9; Dkt. No. 85-11 at 28.
*19 Instead, Defendants argue that Plaintiff “was the only
individual on scene that matched Ms. Bailey's description.”
Dkt. No. 77-56 at 14. But a reasonable juror could readily
conclude that Plaintiff did not match Ms. Bailey's description.
As the parties agree, the 911 call notes described the assailant
as 25 to 35 years old, 6’3” tall, with a “med[ium] build,”
and “black male.” Dkt. No. 90-1 at ¶ 18; Dkt. No. 77-4
at 3. At the time, Plaintiff was 55 years old, 5’7” tall, and
weighed approximately 160 pounds. See, e.g., Dkt. No. 90-1
at ¶ 515. Defendants’ own observations and descriptions of
Plaintiff are consistent with these attributes. See, e.g., Dkt.
No. 77-6 at 2 (Officer Cecile's police report listing Plaintiff's
age as 55, height as 5’7,” and weight as 160); Dkt. No. 77-23
(Detective Brimmer's arrest report listing the same); Dkt. No.
77-8 at 4 (Officer Tolone's police report listing Plaintiff's
age as 55); Dkt. No. 77-16 at 4:11 (Officer Russell's BWC
footage showing her asking Plaintiff for his birthdate, prior
to his arrest, and being told the date in 1964), 18:26 (Officer
Russell's BWC footage showing her providing Plaintiff's
birthdate to another officer); Dkt. No. 77-25 at 7:5-11 (Officer
Cecile testifying that he thought Plaintiff was in his “[l]ate
50s or early 60s” “just going by looking at [him]”).
The only portion of Plaintiff's physical attributes that
“matched” Ms. Bailey's description of the suspect is that
Plaintiff was also “a black male.” Dkt. No. 90-1 at ¶ 18.
A reasonable juror could conclude that this fails to provide
reasonable suspicion to briefly detain Plaintiff, let alone
probable cause to arrest him. See, e.g., United States v. Walker,
965 F.3d 180, 186 (2d Cir. 2020) (“As we have repeatedly
said, ‘race, when considered by itself and sometimes even
in tandem with other factors, does not generate reasonable
suspicion for a stop.’ ”) (quoting United States v. Swindle,
407 F.3d 562, 569-70 (2d Cir. 2005)); Zuniga-Perez v.
Sessions, 897 F.3d 114, 124 (2d Cir. 2018) (“As the Supreme
Court has made abundantly clear, stopping and interrogating
people based solely on race or ethnicity violates the Fourth
Amendment.”) (citing United States v. Brignoni-Ponce, 422
U.S. 873, 885-86, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975));
Dancy v. McGinley, 843 F.3d 93, 109 (2d Cir. 2016) (“[A]
description of race and gender alone will rarely provide
reasonable suspicion justifying a police search or seizure.”)
(quoting Brown v. City of Oneonta, 221 F.3d 329, 334 (2d Cir.
2000)); Jenkins, 478 F.3d at 90 (“It has long been established,
however, that when that description could have applied to any
number of persons and does not single out the person arrested,
probable cause does not exist.”) (collecting cases); see also
supra n.13.
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Defendants also claim that Plaintiff's clothing “matched” the
description Ms. Bailey had provided, in that “his hat, shirt,
and pants all appeared to be different shades of green.” Dkt.
No. 77-56 at 13-14. This characterization is unsupported by
the BWC footage from the Responding Officers, which a
reasonable juror could conclude shows Plaintiff wearing a
grey hat, a white striped shirt, grey pants, and a puffy black
patterned jacket, none matching. See generally Dkt. Nos.
77-15, 77-16, 77-17. Defendants’ claim is also contradicted
by the assessment from the non-party officer who cataloged
Plaintiff's clothing as consisting of a “Baseball Hat (Grey,
green Bird Game logo)[,]” “Blue/green/white striped shirt[,]”
“Grey pants with belt[,]” and a “Black winter coat[.]” Dkt.
No. 77-10 at 3. In any event, the varied articles of clothing
Plaintiff wore on May 6, 2019 are not indisputably a “green
sweatsuit,” like Ms. Bailey had described. Dkt. No. 90-1 at ¶
18. And Ms. Bailey never described the suspect wearing any
hat at all, Dkt. No. 77-5, let alone a hat with prominent neon
lettering, like the one Plaintiff had on his head when Officer
Russell arrived, walked over to Plaintiff and Ms. Bailey, and
began speaking with them, Dkt. No. 77-16 at 0:00. Given this
factual record, Defendants have not established that Plaintiff's
clothing “matched” the description of the suspect such that
they are entitled to judgment as a matter of law.
*20 At best, Defendants’ argument is that they had probable
cause to arrest Plaintiff because some of his clothing may have
had some green. The Court finds this argument unpersuasive
given the Second Circuit's analysis in Dancy v. McGinley. In
that Section 1983 case, police officers received a description
of a robbery suspect as simply “[t]hin black male, brown
jacket.” 843 F.3d at 99. Minutes later, officers stopped, and
ultimately arrested, two teenagers near the crime scene, one
of whom was wearing a “camouflage-patterned coat, with
green, light green, and brown patches.” Id. at 100, 101. As
relevant here, the panel reasoned that there was not even
reasonable suspicion to stop this teenager, who “was indeed
thin, black, and male. But, unlike the description, he was
wearing a camouflage-patterned coat.” Id. at 109. The Circuit
went on to explain that “[w]hile such a discrepancy does not
necessarily defeat a finding of reasonable suspicion ... the
remaining description—thin, black, and male—is too vague
in the circumstances here to justify a stop of anyone meeting
it[.]” Id. (citations omitted) (collecting cases).
A reasonable juror could reach a similar conclusion here.
Plaintiff's age, height, and build were nothing like the physical
description Defendants received for the suspect. Further,
Plaintiff's clothes, in color and type, did not constitute a
“green sweatsuit,” and thus did not provide Defendants
reasonable suspicion to detain him, let alone probable cause
to arrest him. See Dufort v. City of New York, 874 F.3d 338,
350 (2d Cir. 2017) (“Viewing the evidence in the light most
favorable to the plaintiff, a reasonable jury could find that
the police arrested [plaintiff] based on little more than a
witness's statement that he wore a similar shirt to that of one of
[the victims’] attackers. Although a jury could also interpret
the evidence differently, the record presents genuine issues
of material fact that preclude the conclusion that there was
probable cause as a matter of law and that, instead, require a
trial on the merits.”); see also supra n.13.
Defendants’ argument regarding Plaintiff's presence at the
scene fares no better. See, e.g., United States v. Delossantos,
536 F.3d 155, 160 n.4 (2d Cir. 2008) (“[A] person's presence
at a crime scene or association with criminal suspects do
not, without more, amount to probable cause to arrest.”);
Dufort, 874 F.3d at 350 (“Police do not have particularized
probable cause to make an arrest simply because a suspect
has suspicious acquaintances, or happens to be at the scene
of a crime[.]”) (citation omitted); Curry v. City of Syracuse,
316 F.3d 324, 335 (2d Cir. 2003) (“[A]n individual's presence
in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion
that the person is committing a crime.”) (quoting Illinois v.
Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d
570 (2000)). Plaintiff was present in front of the apartment
building where he lived and, as detailed earlier, Defendants
were repeatedly informed that the assailant was another man
who had already left the scene. Mitchell v. City of New York,
841 F.3d 72, 78 (2d Cir. 2016) (“[T]he failure to make a
further inquiry when a reasonable person would have done so
may be evidence of lack of probable cause.”) (quoting Colon
v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455
N.E.2d 1248, 1250 (1983)).
As to the blood on Plaintiff's lip, in response to Officer
Russell's question, Ms. Bailey can be heard explaining that
“he was hit too in the whole altercation, you see that stick he
was hit with that.” Dkt. No. 77-55 at ¶ 12; see also Dkt. No.
77-16 at 0:05.
In sum, the totality of the circumstances proffered by
Defendants fails to establish an undisputed factual record on
which to grant summary judgment. Delossantos, 536 F.3d at
161. A reasonable juror could find that Defendants lacked
probable cause to arrest Plaintiff at approximately 7:34 p.m.
on May 6, 2019.
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3. Subsequent Information
Defendants go on to argue that, between handcuffing Plaintiff
and formally arresting him approximately five hours later,
they obtained additional information that provided them
probable cause to arrest Plaintiff. Dkt. No. 77-56 at 15-21.
Because a reasonable juror could conclude that Plaintiff
had been arrested at approximately 7:34 p.m., however, this
subsequent information is not relevant to analyzing probable
cause. See, e.g., Carruthers, 153 F.4th at 179 (“To assess
probable cause, a court considers only the facts ‘available to
the officer at the time of the arrest and immediately before
it.’ ”) (quoting Ashley, 992 F.3d at 136); Gonzalez v. City of
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (“The inquiry
is limited to ‘whether the facts known by the arresting officer
at the time of the arrest objectively provided probable cause
to arrest.’ ”) (quoting Jaegly v. Couch, 439 F.3d 149, 153
(2d Cir. 2006)). Nonetheless, for the avoidance of doubt, a
reasonable juror could conclude that none of the subsequent
information identified by Defendants, in combination with the
earlier information discussed above, provided probable cause
to formally arrest Plaintiff at approximately 1:00 a.m. on May
7, 2019.
a. Plaintiff's Continued Detention Prior to His
Interrogation
*21 Defendants first argue that the Responding Officers
“performed many investigative tasks” after handcuffing
Plaintiff at approximately 7:34 p.m., and that Detective
Brimmer “performed several investigative tasks” prior to
interrogating Plaintiff at approximately 10:30 p.m. Dkt. No.
77-56 at 15, 17.
With respect to the Responding Officers, however, the only
additional information Defendants identify is Officer Cecile's
subsequent call with Ms. Bailey. Id. at 15-16. During that
call, Ms. Bailey appears to have again stated that the man
who hit Mr. Jones was “wearing a green jump suit,” Dkt. No.
77-55 at ¶ 100, and was “like 35 to 40” years old, Dkt. No.
77-15 at 16:43, not the “[l]ate 50s or early 60s” that Officer
Cecile perceived Plaintiff to be, Dkt. No. 77-25 at 7:5-11.
Such information is largely consistent with—and duplicative
of—the information Responding Officers already had. See
supra Section IV.A.2. Thus, a reasonable juror could conclude
that Plaintiff still did not match the description that Ms. Bailey
provided.
Defendants further contend that the Responding Officers
undertook various investigative efforts at 941 James Street
after handcuffing Plaintiff. Dkt. No. 77-56 at 15-16. But
Defendants identify no relevant additional information from
these efforts. Id. Instead, Defendants take the position that
the Responding Officers had “ample” probable cause to arrest
Plaintiff because “[a]t the conclusion of th[eir] investigation,
nothing excluded Plaintiff as the assailant. In other words,
no eye-witness exonerated Plaintiff ... and there was no
available surveillance evidence.” Id. at 16. Defendants cite
no legal authority for the proposition that unless a person
is “exonerated” by an eyewitness or video evidence at the
scene of a crime, there is probable cause to arrest them. Cf.
Ricciuti, 124 F.3d at 130 (“This argument—an ill-conceived
attempt to erect a legal barricade to shield police officials
from liability—is built on the most fragile of foundations; it is
based on an incorrect analysis of the law and at the same time
betrays a grave misunderstanding of those responsibilities
which the police must have toward the citizenry in an open
and free society.”). Defendants identify nothing from these
investigative efforts that even suggested that Plaintiff had
committed a crime. Hawkins, 37 F.4th at 858.
With respect to Detective Brimmer's investigation prior to
Plaintiff's interrogation, Defendants similarly contend that
Detective “Brimmer did not discover any evidence that
suggested Plaintiff was not the assailant.” Dkt. No. 77-56
at 17. More importantly, Defendants again fail to identify
any additional information developed by Detective Brimmer
that indicated Plaintiff was the assailant. Id. Moreover, a
reasonable juror could conclude that the factual record belies
Defendants’ claim. The results of the canvas conducted by
Detective Brimmer and his colleague further indicated that
there had been three men drinking at the scene of the assault,
not just Plaintiff and Mr. Jones, and thus further supported the
possibility that Plaintiff was not the assailant. Dkt. No. 77-13
at 2; see also Dkt. No. 77-56 at 12.
b. Plaintiff's Interrogation
Defendants next argue that Plaintiff's statements during his
interrogation by the Detectives provided probable cause for
his arrest, and that “Plaintiff voluntarily waived his rights
and was not coerced into a confession.” Dkt. No. 77-56 at
18-21. 17
*22 “Challenges to the voluntariness of a confession are
based on two overlapping constitutional provisions: (1)
due process protections under the Fifth (or Fourteenth)
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Amendment, and (2) the Fifth Amendment privilege against
self-incrimination.” United States v. Mendonca, 88 F.4th 144,
163 (2d Cir. 2023) (citing Dickerson v. United States, 530
U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)).
“As a general matter, courts’ descriptions of statements
as ‘compelled’ (invoking the text of the Self-Incrimination
Clause) and/or ‘involuntary’ (invoking, arguably, the Due
Process Clause) are often used interchangeably and the words
often treated synonymously.” United States v. Allen, 864
F.3d 63, 82 n.84 (2d Cir. 2017) (collecting cases). As a
practical matter, courts “look at the totality of circumstances
surrounding a Miranda waiver and any subsequent statements
to determine knowledge and voluntariness.” United States v.
Taylor, 745 F.3d 15, 23 (2d Cir. 2014) (citation omitted). “To
be effective, a waiver of a defendant's Miranda rights must be
both knowing and voluntary.” United States v. LaPorte, 779
F. App'x 63, 65 (2d Cir. 2019) (citing United States v. Plugh,
648 F.3d 118, 127 (2d Cir. 2011)). In the Miranda context,
“ ‘knowing’ means with full awareness of the nature of the
right being abandoned and the consequences of abandoning
it, and ‘voluntary’ means by deliberate choice free from
intimidation, coercion, or deception.” Taylor, 745 F.3d at
23 (quoting Plugh, 648 F.3d at 127). Even if a waiver is
knowing and voluntary, courts “must nonetheless determine
whether the [subsequent] inculpatory statements themselves
were voluntary.” Id. (citing Dickerson, 530 U.S. at 444, 120
S.Ct. 2326).
Defendants make various factual arguments as to why “there
is no evidence that Plaintiff was not of sound mind or so
intoxicated as to render his confession involuntary.” Dkt. No.
77-56 at 19-20. Given the present factual record, however,
Defendants are not entitled to summary judgment on this
issue.
As an initial matter, Defendants’ own expert contradicts
Defendants’ position. Id. at 20. Dr. Weisman has repeatedly
opined that, over the course of the interrogation, “Mr. Adams
being under the combination of duress, fatigue, limitations of
his legal knowledge, and some level of alcohol intoxication,
became emotionally and cognitively distressed, resigned, and
compelled to offer the narrative of the crime being demanded
of him.” Dkt. No. 77-52 at 11-13.
Further, the parties agree that Plaintiff consumed in excess
of one hundred ounces of malt liquor in the hours before
his interrogation. Dkt. No. 77-55 at ¶¶ 410-11, 414, 420.
Plaintiff stated “I'm drunk” shortly after the interrogation
began, Dkt. No. 77-22 at 6:22, and repeatedly referenced
his drunkenness thereafter, Dkt. No. 90-1 at ¶ 522. Nearly
three hours after the interrogation began, Plaintiff's BAC,
as measured by Defendants, was still almost twice the legal
limit. Dkt. No. 77-24; see also supra n.4. Dr. Weisman opined
that, even at this lower BAC, “[m]otor function, speech, and
judgment are all severely affected” and that “[s]taggering,
and slurred speech, may be observed.” Dkt. No. 77-52 at
10. A reasonable juror could conclude that Plaintiff's body
movements, speech, and demeanor during the videotaped
interrogation demonstrate a significant level of intoxication,
and also that they are consistent with Dr. Weisman's opinion.
See generally Dkt. No. 77-21.
Defendants’ suggestion that Plaintiff's mental health during
the interrogation was not at issue because he did not
share any hallucinations with the Detectives proves too
much. Dkt. No. 77-56 at 20 (“[A]t no point during the
interview did Plaintiff indicate that he was hearing voices....
Similarly, at no point during the interview did Plaintiff
indicate that he could see things that the Defendant Detectives
could not see.”). Plaintiff's medical diagnoses at the time
included schizophrenia, depression, and alcoholism. Dkt.
No. 77-42 at 2-3; Dkt. No. 77-55 at ¶ 454. During the
interrogation, Plaintiff explained that he was not currently
working because he had a dual diagnosis and that his primary
care doctor, psychiatrist, and counselor were at the same local
healthcare provider. Dkt. No. 77-22 at 102:16-103:16. As for
Defendants’ argument that Plaintiff was determined not to be
incapacitated more than a year after the interrogation, that
does little to establish the voluntariness of Plaintiff's waiver
on May 6, 2019. Dkt. No. 77-55 at ¶¶ 390-98.
*23 Given this record, a reasonable juror could determine
that Plaintiff's Miranda waiver was not voluntary.
Even if Defendants had established that Plaintiff's waiver
was voluntary, they have not demonstrated that it was
also knowing. LaPorte, 779 F. App'x at 65. Defendants
do not appear to make any express arguments on this
second requirement for waiver. See, e.g., Dkt. No. 77-56
at 18 (“[A]s discussed below, Plaintiff voluntarily waived
his rights and was not coerced into a confession.”); id. at
25 (“[F]or the reasons stated above, Plaintiff voluntarily
waived his Miranda rights and his confession was freely
given.”). In any event, Dr. Weisman's opinions also
include his assessment that—when sober—Plaintiff's “basic
understanding of Miranda” ranks in the eighteenth percentile
of pretrial defendants and that Plaintiff “has deficits in
his Miranda understanding, particularly regarding legally
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acceptable deceptive police practices as well as other specific
aspects of remaining silent versus talking to the police.” Dkt.
No. 77-52 at 7, 8-9. Because “knowing” for purposes of
Miranda means “made with a full awareness of both the
nature of the right being abandoned and the consequences
of the decision to abandon it,” a reasonable juror could find
that Plaintiff's waiver was not knowing. United States v.
O'Brien, 926 F.3d 57, 73 (2d Cir. 2019) (quoting Berghuis
v. Thompkins, 560 U.S. 370, 382-83, 130 S.Ct. 2250, 176
L.Ed.2d 1098 (2010)).
A reasonable juror could also find Plaintiff's subsequent
confession, after extensive interrogation by the Detectives,
involuntary for similar reasons. See, e.g., Taylor, 745 F.3d at
24 (“An individual's mental state should be considered in the
voluntariness inquiry to the extent it allowed law enforcement
to coerce the individual.... It is clear, however, that when ‘a
person is unconscious or drugged or otherwise lacks capacity
for conscious choice,’ a confession cannot be voluntary.”)
(first citing Colorado v. Connelly, 479 U.S. 157, 164-65, 107
S.Ct. 515, 93 L.Ed.2d 473 (1986); then citing United States v.
Salameh, 152 F.3d 88, 117 (2d Cir. 1998) (per curiam); and
then quoting Schneckloth v. Bustamonte, 412 U.S. 218, 224,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Again, Defendants’
expert has repeatedly opined that, during the interrogation,
“Mr. Adams being under the combination of duress, fatigue,
limitations of his legal knowledge, and some level of alcohol
intoxication, became emotionally and cognitively distressed,
resigned, and compelled to offer the narrative of the crime
being demanded of him.” Dkt. No. 77-52 at 11-13. The Court
also notes that, prior to Plaintiff's confession, the Detectives
removed Plaintiff's phone from his person and then from the
room. Dkt. No. 77-22 at 27:6-20, 60:24-61:3. During the
subsequent break, and prior to Plaintiff's confession, Plaintiff
is visible in the video talking to himself and trying to open
the locked door keeping him in the interrogation room. Dkt.
No. 77-21b at 14:00-17:00; cf. Poventud v. City of New York,
750 F.3d 121, 145 & n.6 (2d Cir. 2014) (Lynch. J., concurring)
(“[W]e know that false confessions have been obtained by
pressures much less imposing than those to which [plaintiff]
was subjected.”) (collecting authorities).
*24 Because a reasonable juror could determine that
Plaintiff's confession was involuntary, based in part on his
intoxication, capacity, and the length and nature of his
detention and interrogation, the Court finds Defendants’
argument that the Detectives permissibly used “falsehoods”
during the interrogation to be somewhat beside the point.
Dkt. No. 90 at 7 (citing Frazier v. Cupp, 394 U.S. 731, 739,
89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (“The fact that the
police misrepresented statements that [a witness] had made is,
while relevant, insufficient in our view to make this otherwise
voluntary confession inadmissible.”)); see also United States
v. Caraballo, 282 F. App'x 910, 914 (2d Cir. 2008) (“We have
held that ‘[w]hether a confession is a product of coercion
may only be determined after a careful evaluation of the
totality of all the surrounding circumstances, including the
accused's characteristics, the conditions of the interrogation,
and the conduct of law enforcement officials.’ ”) (alteration
in original) (quoting United States v. Anderson, 929 F.2d 96,
99 (2d Cir. 1991)).
For all of these reasons, 18 the Motion is denied as to
Plaintiff's federal and state claims for false arrest following
his handcuffing at approximately 7:34 p.m. on May 6, 2019.
B. Malicious Prosecution under Section 1983
“To prevail on a malicious prosecution claim under New
York law, a plaintiff must show ‘(1) the commencement
or continuation of a criminal proceeding by the defendant
against the plaintiff, (2) the termination of the proceeding in
favor of the accused, (3) the absence of probable cause for the
criminal proceeding[,] and (4) actual malice.’ ” Alexander,
132 F.4th at 158 (alteration in original) (quoting Kee, 12 F.4th
at 161-62). Section 1983 requires these same four elements,
“but it also imposes an additional one: ‘(5) a sufficient post-
arraignment liberty restraint to implicate the plaintiff's Fourth
Amendment rights.’ ” Id. (first quoting Rohman v. N.Y.C.
Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); and then
citing Chiaverini v. City of Napoleon, 602 U.S. 556, 562, 144
S.Ct. 1745, 219 L.Ed.2d 262 (2024)).
Defendants challenge only the probable cause element of
Plaintiff's Section 1983 claim for malicious prosecution.
Defendants argue that this claim fails because (i)
“the probable cause supporting Plaintiff's arrest was
overwhelming;” (ii) “[t]hat probable cause only increased in
the day following Plaintiff's arrest;” and (iii) the DA's Office
sought and obtained Plaintiff's indictment. Dkt. No. 77-56 at
21-24.
Defendants’ first argument is unpersuasive for the reasons
detailed previously. See supra Section IV.A. Given the current
record, a reasonable juror could find that Defendants did not
have probable cause to either arrest or prosecute Plaintiff
based on the events that transpired between approximately
7:30 p.m. on May 6, 2019, and 1:00 a.m. on May 7, 2019.
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See, e.g., Walsh v. City of New York, 742 F. App'x 557,
562 (2d Cir. 2018) (“ ‘Probable cause, in the context of a
malicious prosecution, has ... been described as such facts
and circumstances as would lead a reasonably prudent person
to believe the plaintiff guilty.’ ... Because a reasonable juror
could believe that probable cause did not exist for [plaintiff]’s
arrest, as noted above, we conclude that it follows that
a reasonable juror could also believe that probable cause
did not exist for [plaintiff]’s prosecution.”) (first alteration
in original) (citing Stansbury, 721 F.3d at 95). Summary
judgment is thus not appropriate on this ground.
*25 Defendants’ second argument relies on disputed facts
that are also not appropriately resolved at summary judgment.
Defendants contend that, later on May 7, 2019, Detective
Brimmer received additional information from Ms. Bailey
and Ms. Goldych. Dkt. No. 77-56 at 22-23. But, as detailed
earlier, the parties dispute what Ms. Bailey actually said to
Detective Brimmer. See supra Section II.B.4.a. Moreover,
Ms. Bailey's sworn statement suggests that she provided
significant exculpatory information to Detective Brimmer.
See, e.g., Dkt. No. 85-10 at ¶¶ 7-8, 10; Napolitano, 29 F.4th at
107 (“[W]e have also consistently held, as relevant here, that
‘an officer may not disregard plainly exculpatory evidence.’
”) (quoting Panetta, 460 F.3d at 395). Because there is a
genuine dispute of material fact as to what information Ms.
Bailey provided Detective Brimmer—including whether it
was exculpatory—such information is not an appropriate
basis on which to find the existence of probable cause as
a matter of law. Nor is the information that Ms. Goldych
apparently provided Detective Brimmer on May 7, 2019,
during his third attempt to speak with her. Dkt. No. 77-19
at 2-3. Given Ms. Goldych's intoxication, memory, and the
absence of a written statement from her, the information
attributed to her does not establish probable cause entitling
Defendants to judgment as a matter of law. See supra n.7.
Defendants’ third argument rests on the presumption of
probable cause created by a grand jury indictment. See, e.g.,
Werkheiser v. Cnty. of Broome, 655 F. Supp. 3d 88, 103
(N.D.N.Y. 2023) (“[I]ndictment by a grand jury creates a
presumption of probable cause that may only be rebutted
by evidence that the indictment was procured by ‘fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith.”) (quoting Savino v. City of New York,
331 F.3d 63, 72 (2d Cir. 2003)). The parties agree that such
a presumption applies in this case, but dispute whether the
factual record rebuts it. Dkt. No. 77-56 at 23; Dkt. No. 85 at
28-29.
A reasonable juror could conclude that the current factual
record rebuts such a presumption. Not only was the
prosecution against Plaintiff dismissed, senior prosecutors
in the DA's Office have indicated that the basis for the
prosecution was deeply flawed. Dkt. No. 85-7 at 1; Dkt.
No. 85-11 at 9. A reasonable juror could find, for example,
that Plaintiff's prosecution was initiated by (i) the arrest
report charging Plaintiff that Detective Brimmer prepared;
(ii) the allegedly false confession obtained by Detectives
Brimmer and Beauchine, see, e.g., Ekukpe v. Santiago, 823
F. App'x 25, 32 (2d Cir. 2020) (“A jury ‘may permissibly
find that a defendant initiated a prosecution where he filed
the charges or prepared an alleged false confession and
forwarded it to prosecutors.’ ”) (quoting Manganiello v.
City of New York, 612 F.3d 149, 163 (2d Cir. 2010));
Dufort, 874 F.3d at 353 (“The ‘initiation’ requirement is
met when the plaintiff can establish that police officers
forwarded statements to a prosecutor without sharing that
the statements were suspect.”) (citing Manganiello, 612 F.3d
at 163); and/or (iii) the purportedly false statements in the
police reports prepared by Detective Brimmer, Officer Cecile,
Officer Tolone, and Officer Russell, 19 see, e.g., Cameron v.
City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (“[G]enerally
in malicious prosecution actions alleging that a police officer
provided false information to a prosecutor, what prosecutors
do subsequently has no effect whatsoever on the police
officer's initial, potentially tortious behavior.”) (collecting
cases); Werkheiser, 655 F. Supp. 3d at 103 (“A defendant
could have initiated a prosecution ‘by creating material, false
information and forwarding that information to a prosecutor
or by withholding material information from a prosecutor.’ ”)
(first quoting Ying Li v. City of New York, 246 F. Supp. 3d 578,
605 (E.D.N.Y. 2017); additional citations omitted).
Moreover, Plaintiff is correct that a “jury examining Detective
Brimmer's police report alongside Ms. Bailey's statements
could conclude that Det. Brimmer fabricated what [Ms.]
Bailey told him to support, rather than contradict, Mr. Adams’
false confession.” Dkt. No. 85 at 27; see also Manganiello,
612 F.3d at 162 (“Like a prosecutor's knowing use of false
evidence to obtain a tainted conviction, a police officer's
fabrication and forwarding to prosecutors of known false
evidence works an unacceptable ‘corruption of the truth-
seeking function of the trial process.”) (quoting Ricciuti, 124
F.3d at 130); N.Y. Crim. Proc. Law § 60.50 (“A person may
not be convicted of any offense solely upon evidence of
a confession or admission made by him without additional
proof that the offense charged has been committed.”); N.Y.
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Crim. Proc. Law § 70.10(1) (“[E]vidence is not legally
sufficient when corroboration required by law is absent.”).
*26 The Court also agrees with Plaintiff that a
reasonable juror could conclude that the police reports from
the Responding Officers contained “false or misleading
information that wrongfully inculpated Mr. Adams and failed
to include key exculpatory information.” Dkt. No. 85 at 28;
see also Manganiello, 612 F.3d at 162 (“Where there is some
indication in the police records that, as to a fact crucial to
the existence of probable cause, the arresting officers may
have ‘lied in order to secure an indictment’ and ‘a jury could
reasonably find that the indictment was secured through bad
faith or perjury,’ the presumption of probable cause created
by the indictment may be overcome.”) (quoting Boyd v. City
of New York, 336 F.3d 72, 77 (2d Cir. 2003)); Werkheiser,
655 F. Supp. 3d at 104 (“Alternatively, the presumption ‘can
be overcome by a showing by claimant that the conduct of
the police deviated so egregiously from acceptable police
activity as to demonstrate an intentional or reckless disregard
for proper procedures.’ ”) (quoting Hill v. Melvin, No. 05-
cv-6645, 2006 WL 1749520, at *13 (S.D.N.Y. June 27,
2006)).
For instance, Officer Cecile's report states that Ms. “Bailey
stated that the suspect was an old black man.” Dkt. No. 77-6 at
5. But this assertion is contrary to the actual description of the
suspect contained in the 911 call notes, Dkt. No. 90-1 at ¶ 18
(indicating that Ms. Bailey stated the suspect was only 25 to
35 years old) and the similar description Ms. Bailey appears
to have provided to Officer Cecile during their subsequent
phone conversation, Dkt. No. 77-15 at 16:43 (Officer Cecile
clarifying “the guy who got knocked out was, like, in his mid
to late 20s, and it was, like, an older guy, like 35 to 40, that hit
him?”). Officer Cecile also noted in his report that the suspect
had been described as wearing “a green sweat suit,” while
Plaintiff was wearing “a grayish/teal puffy jacket and green
pants[.]” Dkt. No. 77-6 at 5. As detailed earlier, while there
is presently a factual dispute as to whether Plaintiff's pants
were green, Defendants do not contend that Plaintiff's jacket
was green. See supra Section IV.A.2 (Defendants arguing that
Plaintiff's “hat, shirt and pants all appeared to be different
shades of green”) (quoting Dkt. No. 77-56 at 14); see also
Dkt. No. 77-10 at 3 (report from non-party officer stating
that Plaintiff had a “Black winter coat”). Similarly, Officer
Tolone's report states that the suspect was wearing “a green
jump suit,” while Plaintiff “was wearing green pants and a
grey / green vest.” Dkt. No. 77-8 at 2. As also detailed earlier,
Defendants do not contend that Plaintiff was wearing a vest at
all. See supra Section IV.A.2; see also Dkt. No. 77-10 (report
from non-party officer listing Plaintiff's items of clothing,
none of which are a vest). Given all this, a reasonable juror
could find that Officers Cecile and Tolone fabricated portions
of their reports to align their descriptions of Plaintiff with that
of the suspect.
Additionally, Officers Cecile and Russell omitted any
mention of the exculpatory facts that Ms. Bailey, 20 Ms.
Goldych, and Plaintiff all indicated that a third man had
assaulted Mr. Jones and left the scene. Dkt. Nos. 77-6, 77-7;
see also Werkheiser, 655 F. Supp. 3d at 103; Napolitano, 29
F.4th at 107. For his part, Officer Tolone's report states only
that “when we initially arrived on scene Adams stated there
was another male that started a fight with Jones.” Dkt. No.
77-8 at 2.
*27 With respect to each Individual Defendant, then, a
reasonable juror could find that the indictment “was procured
by ‘fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith,’ ” or “that the conduct of
the police deviated so egregiously from acceptable police
activity as to demonstrate an intentional or reckless disregard
for proper procedures,” Werkheiser, 655 F. Supp. 3d at 104
(first quoting Savino, 331 F.3d at 72; and then quoting
Hill, 2006 WL 1749520, at *13). Given the current factual
record, a reasonable juror could find that the presumption
of probable cause is rebutted. Hicks v. Marchman, 719 F.
App'x 61, 65 (2d Cir. 2018) (“[T]he presumption can be
rebutted by showing ‘that the police witnesses have not made
a complete and full statement of facts either to the Grand
Jury or the District Attorney, that they have misrepresented
or falsified evidence, that they have withheld evidence or
otherwise acted in bad faith[.]’ ”) (second alteration in
original) (quoting Colon, 468 N.Y.S.2d 453, 455 N.E.2d
at 1250-51). Accordingly, the Court denies the Motion as
to Plaintiff's Section 1983 claim for malicious prosecution
against the Individual Defendants. 21
C. Fabricated Evidence under Section 1983
In order to prevail on “a Section 1983 fabrication of evidence
claim, a plaintiff must demonstrate that ‘(1) [an] investigating
official (2) fabricat[ed] information (3) that is likely to
influence a jury's verdict, (4) forward[ed] that information to
prosecutors, and (5) the plaintiff suffer[ed] a deprivation of
life, liberty, or property as a result.” Ortiz v. Stambach, 137
F.4th 48, 67 (2d Cir. 2025) (alterations in original) (quoting
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Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d
Cir. 2016)).
Defendants first argue that Plaintiff's fabricated evidence
claim is limited to his allegedly false confession and should
thus be dismissed against the Responding Officers, “who
were not present for Plaintiff's interview and were not
involved in his confession.” Dkt. No. 77-56 at 25, Dkt. No. 90
at 8. The Court agrees with Plaintiff that this claim is not so
limited, and that “there are disputed issues of fact from which
a reasonable juror could find that” each of the Responding
Officers “fabricated inculpatory evidence [or] suppressed
exculpatory evidence to implicate [Plaintiff] wrongly.” Dkt.
No. 85 at 30; see also supra Section IV.B.
As to the confession, Defendants’ renewed argument
that Plaintiff voluntarily waived his Miranda rights and
voluntarily confessed remains unpersuasive for the reasons
previously set forth. Dkt. No. 77-56 at 25; see also supra
Section IV.A.3.b.
Defendants’ final argument that the Detectives did not know
Plaintiff's confession was false is similarly insufficient to
grant summary judgment on this claim. Dkt. No. 77-56
at 25-26. A reasonable juror could view the videotaped
interrogation of Plaintiff and conclude that the Detectives
knew Plaintiff's eventual confession was false because, for
example, Plaintiff was visibly intoxicated; Plaintiff denied
assaulting Mr. Jones nearly 200 times, Dkt. No. 85-2 at ¶ 570;
Plaintiff “became emotionally and cognitively distressed,
resigned, and compelled to offer the narrative of the crime
being demanded of him,” as Defendants’ expert opined after
viewing the videotaped interrogation, Dkt. No. 77-52 at
11-13; or, as Detective Brimmer noted in his police report,
because Plaintiff “provided several different versions about
what occurred,” Dkt. No. 77-19 at 2, some of which were
implausible, see, e.g., Dkt. No. 77-22 at 86:22-87:22 (Plaintiff
stating that he was able to hit Mr. Jones in the head three
of four times with a stick before Mr. Jones fell down);
id. at 100:8-21 (Plaintiff stating that Mr. Jones punched
him twice over the course of the day, both times on the
“same place” on his lip and Detective Brimmer responding
“[y]eah, he knows where to get you, man. He's got aim on
that thing, huh”). See also Ortiz, 137 F.4th at 62, 67-68
(“[T]he law does not require a plaintiff to prove that police
officers fabricated evidence or engaged in bad faith through
any particular type of evidence and, thus, a plaintiff may
do so entirely through circumstantial evidence.... ‘The jury,
of course, was not required to believe [the defendant's]
testimony denying knowledge. Issues relating to state of
mind, such as knowledge and intent, may be influenced
by assessments of credibility and often must be established
by circumstantial evidence.’ ”) (last alteration in original)
(quoting United States v. Ocampo-Guarin, 968 F.2d 1406,
1410 (1st Cir. 1992)). Moreover, if a jury were to believe Ms.
Bailey that Detective Brimmer fabricated various statements
he attributed to her in his police report, they could also
conclude that he did so knowingly.
*28 Accordingly, the Court denies the Motion as to
Plaintiff's Section 1983 claim for fabricated evidence against
the Individual Defendants. 22
D. Monell Claim
Section 1983 “does not impose vicarious liability on a
municipality for the actions of its employees.” Alexander, 132
F.4th at 160 (citing Friend v. Gasparino, 61 F.4th 77, 93 (2d
Cir. 2023)). Instead, “[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.” Lucente
v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (second
alteration in original) (first quoting Wray v. City of New York,
490 F.3d 189, 195 (2d Cir. 2007); and then citing Monell v.
Dep't. of Soc. Servs. of the City of New York, 436 U.S. 658,
690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). As to the first
element, a plaintiff can establish the existence of an official
policy or custom in four ways:
(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) (final alteration added) (first citing Turpin v. Mailet,
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619 F.2d 196, 199 (2d Cir. 1980); then quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986); then citing Turpin, 619 F.2d at 199; and
then quoting City of Canton v. Harris, 489 U.S. 378, 380, 109
S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
Defendants first argue that Plaintiff's Monell claim should
be dismissed because there is no underlying constitutional
violation. Dkt. No. 77-56 at 26. Given that Plaintiff's
constitutional claims survive summary judgment, this
argument is unavailing. See supra Section IV.A-C.
Defendants next argue that the purportedly similar arrests
referenced in one paragraph of the Complaint do not establish
a Monell claim. Dkt. No. 77-56 at 27-28. Those alleged
instances appear to relate to excessive force and racial
profiling claims against non-party officers in the Syracuse
Police Department over a span of some years. Dkt. No.
1 at ¶ 61. In part because Plaintiff has not brought an
excessive force claim, the Court agrees with Defendants
that these alleged instances are insufficiently similar to the
constitutional deprivations Plaintiff allegedly suffered. See
Campo v. City of New York, No. 19-cv-04364, 2022 WL
970730, at *12 (E.D.N.Y. Mar. 31, 2022) (“A plaintiff may
also plead the existence of de facto customs or policies
‘by citing to complaints in other cases that contain similar
allegations.’ ”) (quoting Gaston v. Ruiz, No. 17-cv-1252, 2018
WL 3336448, at *6 (E.D.N.Y. July 6, 2018)). As Defendants
correctly point out in reply, Plaintiff also has not opposed the
Motion on this narrow issue. Dkt. No. 90 at 8-9; see also
Jackson, 766 F.3d at 195. Accordingly, any Monell claim
based on these dissimilar cases or racial profiling is dismissed.
*29 For whatever reason, Defendants do not squarely
address the core of Plaintiff's Monell claim. Compare
Dkt. Nos. 77-56, 90, with Dkt. No. 1 at ¶¶ 52-60
(alleging, inter alia, that Defendant City “has a policy,
custom, practice and pattern of conduct in place that
enables its agents and employee[ ] police officers to act
with deliberate indifference to the constitutional rights
of individuals[,]” including “inadequate guidelines for
conducting interrogations, obtaining false confessions and
corroborating false confessions with eye witness accounts”).
Plaintiff's opposition to the Motion argues that Defendant
City was deliberately indifferent to his constitutional
rights by failing “to supervise and/or train its officers to
undertake constitutionally lawful detentions, interrogations,
and practices to forego the fabrication of evidence.” Dkt. No.
85 at 31-33 (citing Dkt. No. 1 ¶¶ 53, 54, 58).
“A municipality's culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”
Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179
L.Ed.2d 417 (2011) (citing Oklahoma City v. Tuttle, 471
U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)
(plurality opinion)). The Second Circuit has set forth the
following requirements before a municipality's failure to train
or supervise constitutes deliberate indifference:
“First, the plaintiff must show that a policymaker knows
‘to a moral certainty’ that her employees will confront a
given situation.” ... “Second, the plaintiff must show that
the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling
the situation.” ... “Finally, the plaintiff must show that
the wrong choice by the city employee will frequently
cause the deprivation of a citizen's constitutional rights.” ...
“In addition, at the summary judgment stage, plaintiffs
must ‘identify a specific deficiency in the city's training
program and establish that that deficiency is closely related
to the ultimate injury, such that it actually caused the
constitutional deprivation.’ ”
Jenkins, 478 F.3d at 94 (first quoting Walker v. City of New
York, 974 F.2d 293, 297, 298 (2d Cir. 1992); and then quoting
Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006)).
Regardless of whether Plaintiff has satisfied the first three
of these requirements, his assertions with respect to the
Responding Officers’ training lack the necessary factual
detail and are too conclusory. Dkt. No. 85 at 31. He fails to
identify any “specific deficiency in the city's training program
and establish that that deficiency is closely related to the
ultimate injury[,]” Green, 465 F.3d at 81. Accordingly, any
Monell claim based on the training of the Responding Officers
is dismissed. For similar reasons, any Monell claim based
on training related to fabricated evidence generally is also
dismissed.
Plaintiff's arguments as to the training the Detectives received
warrant a different outcome however. Plaintiff contends that
the Detectives received inadequate “training on how to avoid
false confessions” and “improperly interrogated” Plaintiff,
leading to his allegedly false confession. Dkt. No. 85 at 33.
Unlike with the Responding Officers and fabricated evidence
more generally, Plaintiff also sets forth various facts regarding
the Detectives’ interrogation training, facts which Defendants
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largely do not deny. Dkt. No. 90-1 at ¶¶ 523-28, 531-33,
587-88.
Additionally, the Report that Plaintiff includes in his
opposition to the Motion states that a deputy police chief at
the Syracuse Police Department “was able to explain there
is case law which supports interviewing a person who is
intoxicated. The only limitation to this is if the person being
interviewed is intoxicated to the point of being in a manic
state.” Dkt. No. 85-11 at 9. The Report further states that “it
is a matter of training that detectives are trained on the fact
that interviewing an intoxicated person is lawful, unless in this
manic state.” Id. The Report indicates that neither Detective
thought Plaintiff was “excessively intoxicated” during the
interview on May 6, 2019. Id. at 11, 12. Seemingly because
of such training, the Report determined that “[t]herefore, the
actions by [the D]etectives during that interview were lawful
and proper.” Id. 9.
*30 The Report went on to conclude that Plaintiff's “claim
that he was arrested and charge[d] for a crime he did not
commit is true[,]” and that while Plaintiff was charged “due
to his own admission[,]” “[t]he interview conducted by Det.
Beauchine and then Det. Brimmer was lawful and proper.
There was no violation of any rules and regulations by
Det. Beauchine or Det. Sgt. Brimmer, or any officer.” Id.
at 12. 23 Following that conclusion are signatures for the
chief of police, the first deputy chief, a bureau chief, a
supervisor, and the investigating sergeant. Id. at 13. Jones
v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012)
(“To establish deliberate indifference a plaintiff must show
that a policymaking official was aware of constitutional
injury, or the risk of constitutional injury, but failed to
take appropriate action to prevent or sanction violations of
constitutional rights.”); Donovan v. Norwich City Sch. Dist.,
No. 19-cv-1638, 2022 WL 623904, at *11 (N.D.N.Y. Mar.
3, 2022) (“An official's title, though not dispositive of his
authority to make policy, is relevant for the interferences
fairly to be drawn therefrom.”) (quoting Rookard v. Health &
Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)).
Drawing all reasonable inferences in Plaintiff's favor for
purposes of summary judgment, a reasonable juror could
find the requirements for deliberate indifference satisfied
with respect to the Detectives’ training for interrogating
intoxicated individuals. First, the apparent existence of this
very training reflects “a moral certainty” that detectives
will need to interview such individuals. Jenkins, 478 F.3d
at 94 (citation omitted). Second, Detective Brimmer's own
testimony suggests that interviewing intoxicated individuals
presents a “difficult choice.” Id. (citation omitted); Dkt.
No. 77-49 at 25:16-24 (Detective Brimmer testifying with
respect to intoxication and mental capacity during custodial
interviews that “I can't think of any exact incident where
that has occurred but I do understand how, you know,
severe intoxication or, you know, severe mental health where
someone's having a schizophrenic outbreak, or something to
that effect, is certainly going to affect what they're telling
us. And it would be a judgment call and we likely would not
interview that person if they're under extreme intoxication or
having an emotional and/or mental health crisis.”) (emphasis
added). Third, Defendants’ own expert indicates that the
“wrong choice” can result in a false confession, and thus a
deprivation of constitutional rights. Jenkins, 478 F.3d at 94
(citation omitted); Dkt. No. 77-52 at 11-13; see also Dkt. No.
85-7 at 1 (“The district attorney said the case shows police and
prosecutors need better training in identifying the dynamics
of false confessions. ‘While it seems counterintuitive that
someone would confess to something they did not do, it
happens,’ [DA] Fitzpatrick said. ‘And in this case, I hope
all involved analyze the root causes of why this happened.
[’]”). Finally, the Report identifies a “specific deficiency
in the city's training program,” Jenkins, 478 F.3d at 94
(citation omitted), in that the only limitation on interrogating
intoxicated individuals appears to be when they are “in a
manic state,” 24 Dkt. No. 85-11 at 9.
*31 At bottom, Plaintiff contends that the Detectives’
training caused them to violate his constitutional rights, by
interrogating him while he was intoxicated and coercing
him into providing a false confession. Plaintiff may well
ultimately fail to prove such a claim. See, e.g., Outlaw v. City
of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (“[D]eliberate
indifference is a stringent standard of fault.”) (alteration in
original) (quoting Connick, 563 U.S. at 61, 131 S.Ct. 1350).
But he has done enough to survive summary judgment—
particularly in the absence of more specific argument from
Defendants regarding deliberate indifference. According, the
Motion is denied as to Plaintiff's Monell claim based on the
Detectives’ interrogation training.
E. Negligent Supervision and Retention under New
York law
In general, “[t]o state a claim for negligent supervision or
retention under New York law, in addition to the standard
elements of negligence, a plaintiff must show[, inter alia,] (1)
that the tort-feasor and the defendant were in an employee-
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employer relationship ...; [and] (2) that the employer ‘knew
or should have known of the employee's propensity for
the conduct which caused the injury’ prior to the injury's
occurrence[.]” Ehrens v. Lutheran Church, 385 F.3d 232, 235
(2d Cir. 2004) (first citing D'Amico v. Christie, 71 N.Y.2d 76,
524 N.Y.S.2d 1, 518 N.E.2d 896, 901-02 (1987); and then
quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn,
229 A.D.2d 159, 654 N.Y.S.2d 791, 793 (N.Y. App. Div.
1997)). Additionally, “[w]hen a negligence claim is asserted
against a municipality or its employees, the threshold inquiry
is ‘whether the municipal entity was engaged in a proprietary
function or acted in a governmental capacity at the time
the claim arose.’ ” Velez v. City of New York, 730 F.3d
128, 134 (2d Cir. 2013) (quoting Applewhite v. Accuhealth,
Inc., 21 N.Y.3d 420, 972 N.Y.S.2d 169, 995 N.E.2d 131,
134 (2013)). “Providing police protection has long been
recognized as a quintessential governmental function” and
when “a municipality undoubtedly acts in a governmental
capacity, a plaintiff may not recover without proving that the
municipality owed a ‘special duty’ to the injured party.” Id.,
972 N.Y.S.2d 169, 995 N.E.2d at 135 (citing Valdez v. City of
New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 592, 960 N.E.2d
356 (2011)).
Defendants argue, inter alia, that this negligence claim
should be dismissed (i) against the Individual Defendants
because they were all employees and cannot be held liable
as an employer; and (ii) against Defendant City because its
employees were acting in the scope of their employment as
police officers. Dkt. No. 77-56 at 28-30. Plaintiff provides
no persuasive response. Dkt. No. 85 at 33-34. The Court
also notes that Plaintiff offers no evidence regarding any
of the Individual Defendants’ “propensity for the conduct
which caused the injury,” Ehrens, 385 F.3d at 235 (citation
omitted), nor any evidence that Defendant City owed him “a
special relationship beyond the duty that is owed to the public
generally,” Velez, 730 F.3d at 135. Accordingly, the Court
grants the Motion as to Plaintiff's tenth claim.
F. Qualified Immunity for the Individual Defendants
Defendants argue that (i) the Individual Defendants are
entitled to qualified immunity on Plaintiff's false arrest
and malicious prosecution claims because of the collective
knowledge doctrine and because of “plausible instructions
from a superior officer;” (ii) the Individuals Defendants are
entitled to qualified immunity on Plaintiff's pre-interrogation
detention because the multi-hour detention was “objectively
reasonable;” (iii) the Individual Defendants are entitled to
qualified immunity because they had arguable probable cause
to arrest Plaintiff; and (iv) the Detectives are entitled to
qualified immunity with respect to Plaintiff's confession
because “there is no evidence that Plaintiff was not of
sound mind or so intoxicated as to render his confession
involuntary[.]” Dkt. No. 77-56 at 30-38. Defendants do not
appear to contend that they are entitled to qualified immunity
as to the balance of Plaintiff's fabricated evidence claim. See
id.
*32 “Qualified immunity attaches when an official's conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
White v. Pauly, 580 U.S. 73, 78-79, 137 S.Ct. 548, 196
L.Ed.2d 463 (2017) (per curiam) (citation modified). The
application of qualified immunity requires the Court to
undertake a two-pronged inquiry: whether “(1) ... the official
violated a statutory or constitutional right, and (2) ... the
right was ‘clearly established’ at the time of the challenged
conduct.” Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020)
(alterations in original) (quoting Ricciuti v. Gyzenis, 834 F.3d
162, 167 (2d Cir. 2016)). Under the “clearly established”
prong, the law does not require “a case directly on point,”
but “existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (citing Ashcroft
v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d
1149 (2011)); see, e.g., Golino v. City of New Haven, 950
F.2d 864, 870 (2d Cir. 1991) (“The right not to be arrested
or prosecuted without probable cause has, of course, long
been a clearly established constitutional right.”); Ricciuti,
124 F.3d at 128, (“The right to be free from arrest or
prosecution in the absence of probable cause is a long
established constitutional right.”); Weaver v. Brenner, 40 F.3d
527, 533-34 (2d Cir. 1994) (“It is clear that [in 1989] ...
a criminal suspect could not lawfully be compelled to be
a witness against himself.... It was also clearly established
in 1989 that police could not lawfully coerce incriminating
statements from an in-custody criminal suspect.”); Zahrey
v. Coffey, 221 F.3d 342, 345 (2d Cir. 2000) (“We hold that
there is a constitutional right not to be deprived of liberty
as a result of the fabrication of evidence by a government
officer acting in an investigatory capacity .... [and] that this
right was clearly established in 1996[.]”); Morse v. Fusto,
804 F.3d 538, 541 (2d Cir. 2015) (“[T]he actions of the
defendants upon which [plaintiff] bases his claims were
the knowing creation of false or misleading evidence by a
government officer acting in an investigative capacity. We
have held that such activity by a government official qualifies
as an unconstitutional deprivation of the victim's rights.
This right was, moreover, clearly established at the time of
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the defendants’ conduct.”); Horn v. Adger, Nos. 24-1034,
24-1038, 2025 WL 1618761, at *3 (2d Cir. June 9, 2025)
(summary order) (“On appeal, the Detectives do not contest
our clearly established caselaw holding that police officers are
liable under § 1983 for ‘creat[ing] false information likely to
influence a jury's decision and forward[ing] that information
to prosecutors.’ ”) (alterations in original) (citation omitted).
“Courts have discretion to decide the order in which to engage
these two prongs.” Tolan v. Cotton, 572 U.S. 650, 656, 134
S.Ct. 1861, 188 L.Ed.2d 895 (2014) (citation omitted).
At this stage, the Court need only address the “constitutional
violation” prong. As detailed above, whether any Defendant
violated Plaintiff's constitutional rights depends on numerous
disputed issues of material fact. The parties dispute, for
example, when Plaintiff's detention ripened into an arrest, see
supra Section IV.A.1; whether the Individual Defendants had
probable cause to arrest Plaintiff prior to his interrogation, see
supra Section IV.A.2-3.a; the extent of Plaintiff's intoxication
during the interrogation, as well as the voluntariness and
veracity of his statements, see supra Section IV.A.3.b;
and whether the Individual Defendants improperly initiated
Plaintiff's prosecution, see supra Section IV.B. Such factual
disputes preclude a finding of qualified immunity at this stage.
See, e.g., Dufort, 874 F.3d at 343 (“We conclude that the
district court's grant of summary judgment as to [plaintiff]’s
false arrest and malicious prosecution claims was premature,
because disputed questions of material fact remain regarding
key aspects of the criminal investigation and subsequent
prosecution. We further conclude that those same questions
of material fact preclude a grant of qualified immunity at the
summary judgment stage.”).
The Court reaches the same conclusion with respect to
Defendants’ arguments regarding reliance on “plausible
instructions” from a superior officer and arguable probable
cause. As to the former, the limited record evidence cited by
Defendants is insufficient to establish, as a matter of law, that
such instructions were given. Dkt. No. 77-55 at 34-35. In
any event, as the authority on which Defendants rely makes
clear, id. at 35, even if such instructions were given, that does
not end the inquiry. See Anthony v. City of New York, 339
F.3d 129, 138 (2d Cir. 2003) (“Plausible instructions from a
superior or fellow officer support qualified immunity where,
viewed objectively in light of the surrounding circumstances,
they could lead a reasonable officer to conclude that the
necessary legal justification for his actions exists (e.g.[,]
a warrant, probable cause, exigent circumstances).”) (first
quoting Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir.
2000); additional citations omitted). And the disputed factual
record precludes reaching a determination with respect to this
inquiry.
As to arguable probable cause, the current factual record also
precludes summary judgment. See, e.g., Napolitano, 29 F.4th
at 105 (“A police officer has arguable probable cause ‘if either
(a) it was objectively reasonable for the officer to believe
that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test
was met.’ ”) (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d
Cir. 2016)); Jenkins, 478 F.3d at 88 (“[U]nder both New York
and federal law, summary judgment dismissing a plaintiff's
false arrest claim is appropriate if the undisputed facts indicate
that the arresting officer's probable cause determination was
objectively reasonable.... If, however, on the undisputed
facts the officer would be unreasonable in concluding that
probable cause existed, or if the officer's reasonableness
depends on material issues of fact, then summary judgment
is inappropriate for both New York and federal false arrest
claims.”) (first citing Cerrone v. Brown, 246 F.3d 194, 199
(2d Cir. 2001); and then citing Dillard v. City of Syracuse, 51
A.D.2d 432, 381 N.Y.S.2d 913, 915 (N.Y. App. Div. 1976)).
*33 In sum, the disputed factual record precludes summary
judgment based on qualified immunity. See, e.g., Eaton
v. Estabrook, 144 F.4th 80, 89 (2d Cir. 2025) (“In the
qualified immunity context, ‘[p]re-trial resolution of the
defense [of qualified immunity] ... may be thwarted by a
factual dispute.’ ... ‘Any disputed questions of material fact
—such as the acts of the defendant and their effects on the
plaintiff—are to be determined by the factfinder.’ ”) (final
alteration added) (first quoting Warren v. Dwyer, 906 F.2d 70,
74 (2d Cir. 1990); and then quoting Walker v. Schult, 45 F.4th
598, 617 (2d Cir. 2022)). Given the current factual record,
Defendants have not carried their burden to demonstrate that
no rational juror could conclude that they violated Plaintiff's
constitutional rights. Coollick v. Hughes, 699 F.3d 211, 219
(2d Cir. 2012) (“Thus, a decision dismissing a claim based on
qualified immunity at the summary judgment stage may only
be granted when a court finds that an official has met his or
her burden demonstrating that no rational jury could conclude
‘(1) that the official violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of
the challenged conduct.’ ”) (quoting al-Kidd, 563 U.S. at 735,
131 S.Ct. 2074). 25
G. John Does 1-100
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Defendants also argue that because Plaintiff has not amended
his Complaint, the Doe Defendants should be dismissed
without prejudice. Dkt. No. 77-56 at 30. Plaintiff responds
with a single sentence “reassert[ing] his request to amend the
complaint to include additional defendants” and no authority
in support of such a request. Dkt. No. 85 at 34.
Almost two years ago, Magistrate Judge Katz considered
and denied Plaintiff's request to amend the Complaint to
include two additional defendants. Dkt. No. 64. Since that
time, Plaintiff has not sought a review of that decision and has
not undertaken any further efforts to amend the Complaint.
Plaintiff now offers no authority and no new arguments in
support of his cursory request. Plaintiff's renewed request is
denied for the reasons set forth by Magistrate Judge Katz,
Dkt. No. 64, and all claims against the Doe Defendants are
dismissed, see, e.g., Kaczmarek v. City of Schenectady, No.
10-cv-1193, 2013 WL 5506276, at *2 (N.D.N.Y. Oct. 4, 2013)
(“Because plaintiffs have failed to timely identify and serve
the John Doe defendants, plaintiffs’ claims against both John
Doe defendants are dismissed.”).
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ motion for summary judgment,
Dkt. No. 77, is GRANTED in part and DENIED in part,
as set forth in Section IV of this Memorandum-Decision and
Order; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-
Decision and Order on the parties in accordance with the
Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2772081
Footnotes
1 The Complaint incorrectly spells Officer Tolone's last name as “Toltone.” Dkt. No. 77-55 at 1 n.1. Citations
to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not
the document's internal pagination.
2 This case was reassigned to the undersigned on January 19, 2023. Dkt. No. 34.
3 Unless otherwise indicated, the following facts have been asserted by the parties in their statements of
material facts with accurate record citations, and expressly admitted or not denied with a supporting record
citation in response. See N.D.N.Y. L.R. 56.1. The Court has also considered the parties’ other submissions
and attached exhibits. See generally Dkt. Nos. 77, 85-86, 90.
4 A person with a BAC of 0.08 percent is considered intoxicated per se under New York's Vehicle and Traffic
Law (“VTL”). See N.Y. Veh. & Traf. Law § 1192(2); see also Dalmasi v. City of Mount Vernon, No. 13-cv-8672,
2014 WL 6645827, at *1 n.3 (S.D.N.Y. Nov. 24, 2014) (noting that a court may “take judicial notice of the
VTL in deciding” summary judgment) (citations omitted).
5 During his deposition, Office Cecile characterized this statement as “police banter.” Dkt. No. 77-47 at 74:13-17
(“Q. So, it's definitely him doesn't mean -- it doesn't mean that you were sure it was him? A. Right. That's
police banter. I wasn't sure.”).
6 Officer Russell testified during her deposition that she already knew Plaintiff from “[p]rior incidents,” none
involving violence. Dkt. No. 77-46 at 104:16-25.
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7 Seemingly in the early morning of May 7, 2019, Detective Brimmer again tried to speak with Ms. Goldych, who
“still seemed too intoxicated” and “could speak a little but was talking about outlandish things not related to
this incident.” Dkt. No. 77-19 at 3. When Detective Brimmer spoke with Ms. Goldych a third time, at some point
later on May 7, 2019, she “seemed much less intoxicated.” Id. While in that state, Ms. Goldych apparently
told Detective Brimmer, inter alia, that she was “drunk[ ] at the time of the incident and does not remember all
of the details” and that “she was unaware that Jones had been injured.” Id. Detective Brimmer did not take a
written statement from Ms. Goldych. Id.; see also Dkt. No. 77-30 at 2 (non-party detective's report stating that
when he subsequently spoke with Ms. Goldych “[i]t should be noted throughout our conversation V. Goldych
referred to ‘spiritual incidents’ as well as being visited by ‘higher powers’ on several different occasions. She
often had a difficult time organizing her thoughts and at times did not directly answer questions. Based upon
her actions and statements her mental health status is unknown to me at this time.”).
8 Dr. Weisman further opined that “[t]o help determine typical reductions in human BAC, clinical services often
utilize a declination rate of 0.015% per hour.” Dkt. No. 77-52 at 11. This suggests that Plaintiff had a higher
BAC several hours prior, when Detective Brimmer read Plaintiff his Miranda rights. Dkt. No. 77-55 at ¶ 154.
Presumably, the corresponding physiological effects identified by Dr. Weisman would have been more severe
at that time and during the interrogation.
9 The transcript Defendants provided inaccurately characterizes Plaintiff's statement as “[m]umbles
incoherently.” Dkt. No. 77-22 at 105:7.
10 Members of the Onondaga County District Attorney's Office (“DA's Office”) have since identified deficiencies
with the process that led to this result. Dkt. No. 85-7 at 1 (“ ‘While it seems counterintuitive that someone
would confess to something they did not do, it happens,’ [Onondaga County District Attorney (“DA”) William]
Fitzpatrick said. ‘And in this case, I hope all involved analyze the root causes of why this happened. We have
done that in my office.’ .... ‘I have discussed the case with the prosecutor initially assigned and pointed out
mistakes that were made,’ Fitzpatrick said. ‘The prosecutor who presented it to the grand jury and missed
several red flags is no longer with the office.’ ”); Dkt. No. 85-11 at 9 (Syracuse Police Department report stating
that, according to Onondaga County Assistant District Attorney (“ADA”) Joe Coolican, “when the grand jury
proceeding occurred, there was no identification process done by the Assistant District Attorney overseeing
the case. Therefore, the witness [Ms. Bailey] was unaware Mr. Adams was the one who was in custody and
accused of these crimes.”).
11 From the record before the Court, it is not clear whether these charges were ever increased. Compare Dkt.
No. 77-33, with Dkt. No. 77-38.
12 The Complaint also contains various requests for relief. See, e.g., Dkt. No. 1 at ¶¶ 105-114; Dkt. No. 77-56
at 9 n.2.
13 To the extent that the Complaint states a claim for false arrest prior to this time, any such claim is dismissed
as abandoned, as is any claim for declaratory judgment. See Jackson v. Fed. Exp., 766 F.3d 189, 195 (2d
Cir. 2014) (“[A] partial response arguing that summary judgment should be denied as to some claims while
not mentioning others may be deemed an abandonment of the unmentioned claims.”); see also Dkt. No. 1
at ¶¶ 101-04; Dkt. No. 77-56 at 9 n.2.
14 It also contradicts a position that Defendants took in support of their prior dispositive motion, wherein they
argued that Plaintiff's “alleged drunken confession – insofar as it could possibly be construed as ‘false’ – did
not result in Plaintiff's loss of liberty as he had already been arrested and confined.” Dkt. No. 7-2 at 16.
15 Defendants do not contend that they had probable cause to arrest Plaintiff for any other offense. Dkt. No.
77-56 at 14.
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16 The parties further agree that the “collective or imputed knowledge doctrine” applies. See, e.g., Dkt. No.
77-56 at 12 (“[T]he relevant inquiry is whether the collective knowledge of the Syracuse Police Department
(‘SPD’) constituted probable cause, not whether a specific arresting officer had probable cause.”); Dkt. No.
85 at 14. Under that doctrine, an arrest “is permissible where the actual arresting ... officer lacks the specific
information to form the basis for probable cause ... but sufficient information to justify the arrest ... was known
by other law enforcement officials initiating ... the investigation” and “the other officers ‘have communicated
the information they possess individually, thereby pooling their collective knowledge to meet the probable
cause threshold.’ ” Brown v. City of New York, 798 F.3d 94, 99 (2d Cir. 2015) (alterations in original) (first
quoting Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007); and then quoting United States v. Chavez,
534 F.3d 1338, 1345 (10th Cir. 2008)).
17 Defendants do not dispute that Miranda warnings were necessary. See id.; Jackson v. Conway, 763 F.3d
115, 136 (2d Cir. 2014) (“The Miranda safeguards apply only to ‘custodial interrogations.’ ”).
18 Defendants’ argument that no Individual Defendants was personally involved in all of the events resulting in
Plaintiff's arrest and monthslong detention is unpersuasive. Dkt. No. 77-56 at 13, 21 n.6. As detailed above,
Plaintiff has sufficiently established the personal involvement of every Individual Defendant in the events
giving rise to his false arrest claims. See, e.g., Legree v. City of Waterbury, No. 22-cv-00659, 2024 WL
3964944, at *7 (D. Conn. Aug. 28, 2024) (“However, ‘personal involvement’ in an arrest is not limited to
officers who were physically involved in taking someone into custody. Courts in this Circuit have upheld false
arrest liability for non-arresting officers.”) (collecting cases).
19 Each report was affirmed under penalty of perjury. See, e.g., Dkt. No. 77-19 at 2-3; Dkt. No. 77-6 at 5; Dkt.
No. 77-8 at 2; Dkt. No. 77-7 at 2.
20 Defendants contend that Officer Russell was “unaware of the fact” that Ms. Bailey was still on the scene
when Officer Russell arrived. Dkt. No. 77-56 at 14. This assertion is contradicted by Officer Russell's BWC
footage. See Dkt. No. 77-16 at 0:01 (Officer Russell responding to Ms. Bailey's statement that “he got into a
fight with somebody, the other dude ran off, but he got knocked out” with “the other dude knocked out?”); id.
at 11:27 (Officer Russell stating “I wish we would have got those people that were ...” and gesturing towards
the sidewalk in the direction Ms. Bailey and her siblings had walked); id. at 17:21 (Officer Russell stating “did
anyone contact those people back,” presumably again in reference to Ms. Bailey and her siblings).
21 To the extent that the Complaint states a distinct claim for malicious prosecution against Defendant City
individually, or pursuant to New York law, any such clam is dismissed as abandoned. Compare Dkt. No.
77-56 at 22 & n.7, 24, with Dkt. No. 85 at 23-30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell
claim against Defendant City is addressed further below. See infra Section IV.D.
22 To the extent that the Complaint states a distinct claim for fabricated evidence against Defendant City
individually, any such clam is dismissed as abandoned. Compare Dkt. No. 77-56 at 26, with Dkt. No. 85 at
30; see also Jackson, 766 F.3d at 195. Plaintiff's separate Monell claim against Defendant City is addressed
next. See infra Section IV.D.
23 This portion of the Report makes clear that Detective Brimmer was subsequently promoted to Detective
Sergeant, a position in which he supervises other detectives. See also Dkt. No. 77-49 at 12:20-13:1.
24 It is unclear from the current record how this limitation operates in practice, given that alcohol is a depressant
while “[m]ania is a condition in which you have a period of abnormally elevated, extreme changes in your
mood or emotions, energy level or activity level. This highly energized level of physical and mental activity and
behavior must be a change from your usual self and be noticeable by others.” Mania, CLEVELAND CLINIC,
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https://my.clevelandclinic.org/health/diseases/21603-mania (last visited September 29, 2025). Neither the
Report nor the Motion identify the referenced caselaw. See generally Dkt. Nos. 77, 85-11, 90.
25 Because factual disputes preclude summary judgment on the first prong of the qualified immunity inquiry,
the Court makes no determination as to the second prong, as noted earlier. Id. at 219-220; see also Linton
v. Zorn, 135 F.4th 19, 32 (2d Cir. 2025) (“But under either prong, courts may not resolve genuine disputes
of fact in favor of the party seeking summary judgment.”) (quoting Tolan, 572 U.S. at 656, 134 S.Ct. 1861).
For similar reasons, the Court also does not address the parties’ competing expert reports. Dkt. Nos. 77-53,
77-54, 85-14.
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Amaker v. Kelley, Not Reported in F.Supp.2d (2009)
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2009 WL 385413
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Anthony D. AMAKER, Plaintiff,
v.
T. KELLEY, J. Landry, P.T. Justine, O. Mayo, T.G.
Egan, D.A. Senkowski, M. Allard, R. Girdich, G.S.
Goord, J. Wood, Doctor I. Ellen, J. Mitchell, H. Worley,
Doctor L.N. Wright, S. Nye, M. McKinnon, M. Rivers,
L. Coryer, A. Pavone, L. Cayea, D. Armitage, J. Carey,
P.W. Annetts, R. Rivers, E. Aiken, S.Gideon, R. Lincoln,
D. Linsley, C.O. Gordon, J. Reyell, D. Champagne, J.
Kelsh, W. Carter, F. Bushey, Cho Phillip, Cho Drom,
A.J. Annucci, L.J. Leclair, D. Laclair, T.L. Ricks, A.
Boucaud, H. Perry, B. Baniler, R. Lamora, E. Liberty,
G. Ronsom, R. Maynard, C. Daggett, D. Selksky, K.M.
Lapp, R. Sears, J. Babbie, Sgt. Champagne, Doctor
K. Lee, R. Vaughan, and M. Nisoff, 1 Defendants.
No. 9:01–CV–877 (FJS/DEP).
|
Feb. 9, 2009.
Attorneys and Law Firms
Anthony D. Amaker, Wallkill, NY, pro se.
Hon. Andrew M. Cuomo, Office of the Attorney General
State of New York, David B. Roberts, Esq., Assistant
Attorney General, of Counsel, Albany, NY, for Defendants.
ORDER
SCULLIN, Senior District Judge.
*1 In a Report and Recommendation dated September 9,
2008, Magistrate Judge Peebles recommended that this Court
grant Defendants' motion for summary judgment on all claims
and that the Court deny Defendant Rivera's motion to dismiss
as moot. See Dkt. No. 249. Plaintiff filed objections to those
recommendations. See Dkt. No. 251.
Plaintiff makes two objections that have nothing to do with
the merits of his claims,. He objects to the fact that Magistrate
Judge Peebles did not attach unpublished cases cited in the
Report and Recommendation to it and to the recommendation
that the Court dismiss Defendants who have not answered
or otherwise opposed the complaint. See id. 1–2. Plaintiff
also objects, generally, to the application of preclusion and
other legal doctrines to his claims. Plaintiff's remaining
objections, for the most part, are not actually objections, but
consist of further legal argument regarding his claims. See
id. at 2–6. The Court's review of Magistrate Judge Peebles'
Report and Recommendation, in light of Plaintiff's objections,
demonstrates that Magistrate Judge Peebles correctly applied
the appropriate law and that Plaintiff's objections are without
merit. 2
Therefore, after carefully considering Magistrate Judge
Peebles' Report and Recommendation, Plaintiff's objections
thereto, as well as the applicable law, and for the reasons
stated herein and in Magistrate Judge Peebles' Report and
Recommendation, the Court hereby
ORDERS that Magistrate Judge Peebles' September 9, 2008
Report and Recommendation is ADOPTED in its entirety;
and the Court further
ORDERS that Defendants' motion for summary judgment is
GRANTED; and the Court further
ORDERS that Defendant Rivera's motion to dismiss is
DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment for
Defendants and close this case.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, United States Magistrate Judge.
Plaintiff Anthony D. Amaker, a New York State prison
inmate who is proceeding pro se and in forma pauperis,
has commenced this action pursuant to 42 U.S.C. § 1983,
claiming deprivation of his civil rights. Plaintiff's complaint,
as amended, contains an amalgamation of claims based
upon a series of events alleged to have occurred at the two
correctional facilities in which he was housed during the
relevant period, naming in excess of fifty individuals as well
as the New York State Senate and Assembly as defendants,
and seeking both injunctive and monetary relief.
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Currently pending before the court are two motions brought
by the defendants. In the first, defendants seek the entry of
summary judgment dismissing plaintiff's claims on a variety
of grounds, principally on the merits, though additionally
urging their entitlement to qualified immunity from suit. One
of the named defendants, Rafael Rivera, a corrections officer,
has additionally moved requesting dismissal of plaintiff's
claims against him for failure to state a claim upon which
relief may be granted, arguing that plaintiff's allegations are
facially insufficient to support a cognizable claim against him.
For the reasons set forth below I recommend that defendants'
summary judgment motion be granted, and in light of that
recommendation find it unnecessary to address defendant
Rivera's separate motion.
I. BACKGROUND
*2 Plaintiff is a prison inmate entrusted to the care and
custody of the New York State Department of Correctional
Services (the “DOCS”). Amended Complaint (Dkt. No. 78)
¶ 3. Plaintiff's incarceration results from a 1989 conviction
for murder in the second degree, for which he was sentenced
to a period of imprisonment of between twenty-five years
and life. Defendants' Local Rule 7.1(a)(3) Statement (Dkt.
No. 229–2) ¶ 1. At the times relevant to his claims plaintiff
was designated initially to the Clinton Correctional Facility
(“Clinton”), where he was housed beginning in June of 1998,
and later the Upstate Correctional Facility (“Upstate”), into
which he was transferred on or about October 31, 2001. 1
Amended Complaint (Dkt. No. 78) ¶¶ 3, 5, 21.
In his amended complaint plaintiff has interposed a wide
range of claims, many of which are unrelated and some of
which, as will be seen, were included in a subsequent action
brought by the plaintiff in this court, based upon events
occurring at Clinton, and later at Upstate, between June, 1998
and January of 2002. One of the more prominent claims now
asserted by the plaintiff concerns efforts by DOCS authorities
to obtain a Deoxyribonucleic Acid (“DNA”) sample from him
as authorized under New York's DNA Indexing Statute, N.Y.
Executive Law Art. 49–B, as well as disciplinary action taken
by prison officials based upon his refusal to comply with that
request. Plaintiff also alleges, inter alia, that defendants were
deliberately indifferent to his serious medical needs, and that
he was 1) exposed to inhumane conditions of confinement;
2) denied meaningful access to the law library facilities and
deprived of court papers; 3) retaliated against for exercising
his right to file grievances and seek other forms of redress; 4)
subjected to unlawful racial discrimination and cell searches;
and 5) unlawfully required to pay for food and spices required
to enjoy meals consonant with his religious beliefs. 2
II. PROCEDURAL HISTORY
Plaintiff commenced this action on June 1, 2001, Dkt. No.
1, and on June 6, 2002 filed a second amended complaint—
the operative pleading currently before the court. 3 Dkt. No.
78. In his amended complaint, plaintiff asserts a variety of
constitutional and statutory claims against fifty-five named
defendants, including the Commissioner of the DOCS and
many of the agency's employees. 4 Id.
Since its inception some seven years ago, this case has
developed a tortured procedural history which has included
the filing of more than one motion for interim injunctive
relief and various interlocutory appeals, all of which have
been dismissed. Now that discovery has been completed, by
motion filed on February 13, 2007 defendants have moved
for summary judgment dismissing plaintiff's claims on a
variety of grounds. Dkt. No. 229. In addition, Corrections
Officer R. Rivera, a named defendant who has yet to answer
plaintiff's complaint, has also moved seeking dismissal of
plaintiff's claims against him pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a
claim upon which relief may be granted as against him.
Dkt. No. 237. Plaintiff has since responded to defendants'
summary judgment motion by the filing on May 25, 2007 of
a memorandum, affidavit, and various other materials, Dkt.
No. 240, but has not opposed defendant Rivera's dismissal
motion. 5
*3 Defendants' motions, which are now ripe for
determination, have been referred to me for the issuance of a
report and recommendation, pursuant to 28 U.S.C. § 636(b)
(1)(B) and Northern District of New York Local Rule 72.3(c).
See Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Standards of Review
1. Dismissal Motion Standard
A motion to dismiss a complaint, brought pursuant to Rule
12(b) (6) of the Federal Rules of Civil Procedure, calls upon a
court to gauge the facial sufficiency of that pleading, utilizing
as a backdrop a pleading standard which is particularly
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unexacting in its requirements. Rule 8 of the Federal Rules
of Civil Procedure requires only that a complaint contain
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Absent
applicability of a heightened pleading requirement such as
that imposed under Rule 9, a plaintiff is not required to plead
specific factual allegations to support the claim; rather, “the
statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’ “ Erickson
v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
1964 (2007) (other quotations omitted)); cf. Iqbal v. Hasty,
490 F.3d 143, 157–58 (2d Cir.2007) (acknowledging that a
plaintiff may properly be required to illuminate a claim with
some factual allegations in those contexts where amplification
is necessary to establish that the claim is “plausible”). Once
the claim has been stated adequately, a plaintiff may present
any set of facts consistent with the allegations contained in
the complaint to support his or her claim. Twombly, 127 S.Ct.
at 1969 (observing that the Court's prior decision in Conley
v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957), “described the
breadth of opportunity to prove what an adequate complaint
claims, not the minimum standard of adequate pleading to
govern a complaint's survival”).
In deciding a Rule 12(b)(6) dismissal motion, the court must
accept the material facts alleged in the complaint as true, and
draw all inferences in favor of the non-moving party. Cooper
v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1722, 1734 (1964); Miller
v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.),
cert. denied, 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v.
Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y.2005) (Kahn, J.).
The burden undertaken by a party requesting dismissal of
a complaint under Rule 12(b)(6) is substantial; the question
presented by such a motion is not whether the plaintiff is likely
ultimately to prevail, “ ‘but whether the claimant is entitled to
offer evidence to support the claims.’ “ Log On America, Inc.
v. Promethean Asset Mgmt. L.L.C., 223 F.Supp.2d 435, 441
(S.D.N.Y.2001) (quoting Gant v. Wallingford Bd. of Educ.,
69 F.3d 669, 673 (2d Cir.1995) (other quotations omitted)).
Accordingly, a complaint should be dismissed on a motion
brought pursuant to Rule 12(b)(6) only where the plaintiff has
failed to provide some basis for the allegations that support
the elements of his or her claim. See Twombly, 127 S.Ct. at
1969, 1974; see also Patane v. Clark, 508 F.3d 106, 111–12
(2d Cir.2007) (“In order to withstand a motion to dismiss,
a complaint must plead ‘enough facts to state a claim for
relief that is plausible on its face.’ ”) (quoting Twombly ).
“While Twombly does not require heightened fact pleading of
specifics, it does require enough facts to ‘nudge [plaintiffs']
claims across the line from conceivable to plausible.’ “ In
re Elevator Antitrust Litig., 502 F.3d 47, 50 (3d Cir.2007)
(quoting Twombly, 127 S.Ct. at 1974).
*4 When assessing the sufficiency of a complaint against
this backdrop, particular deference should be afforded to a pro
se litigant whose complaint merits a generous construction
by the court when determining whether it states a cognizable
cause of action. Erickson, 127 S.Ct. at 2200 (“ ‘[A] pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.’ ”) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97
S.Ct. 285, 292 (1976) (internal quotations omitted)); Davis
v. Goord, 320 F.3d 346, 350 (2d Cir.2003) (citation omitted);
Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y.2004)
(Hurd, J.). In the event of a perceived deficiency in a pro
se plaintiff's complaint, a court should not dismiss without
granting leave to amend at least once if there is 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) (leave
to amend “shall be freely given when justice so requires”).
2. Summary Judgment Standard
Summary judgment is governed by Rule 56 of the Federal
Rules of Civil Procedure. Under that provision, summary
judgment is warranted when “the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509–10 (1986);
Security Ins. Co. of Hartford v. Old Dominion Freight Line,
Inc., 391 F.3d 77, 82–83 (2d Cir.2004). A fact is “material”,
for purposes of this inquiry, if it “might affect the outcome
of the suit under the governing law.” Anderson, 477 U.S.
at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New
York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson ).
A material fact is genuinely in dispute “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at
2510. Though pro se plaintiffs are entitled to special latitude
when defending against summary judgment motions, they
must establish more than mere “metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but
see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620–21 (2d
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Cir.1999) (noting obligation of court to consider whether pro
se plaintiff understood nature of summary judgment process).
When the entry of summary judgment is sought, the moving
party bears an initial burden of demonstrating that there is no
genuine dispute of material fact to be decided with respect to
any essential element of the claim in issue; the failure to meet
this burden warrants denial of the motion. Anderson, 477 U.S.
at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83.
In the event this initial burden is met, the opposing party must
show, through affidavits or otherwise, that there is a material
issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at
324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct.
at 2511.
*5 When deciding a summary judgment motion, a court
must resolve any ambiguities, and draw all inferences from
the facts, in a light most favorable to the nonmoving party.
Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133,
137–38 (2d Cir.1998). Summary judgment is inappropriate
where “review of the record reveals sufficient evidence for
a rational trier of fact to find in the [non-movant's] favor.”
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002)
(citation omitted); see also Anderson, 477 U.S. at 250,
106 S.Ct. at 2511 (summary judgment is appropriate only
when “there can be but one reasonable conclusion as to the
verdict”).
B. DNA Testing
In or about September of 2001, prison officials at Upstate
initiated efforts to obtain a DNA sample from the plaintiff.
Amended Complaint (Dkt. No. 78) ¶ ¶ 18–19. Plaintiff's
refusal to cooperate with those efforts led to the issuance by
Corrections Sergeant Cayea of a misbehavior report charging
Amaker with failing to obey an order. Id.; see also Mans Aff.
(Dkt. No. 229–14) Exh. B. A Tier II hearing was convened
to address the charges lodged in the misbehavior report,
resulting in a finding of guilt and the imposition of a penalty
which included thirty days of keeplock confinement, with a
corresponding loss of privileges. 6 , 7 Id.
On October 10, 2001 plaintiff was again directed to
provide a DNA sample, but similarly refused to honor the
request. Amended Complaint (Dkt. No. 78) ¶ 20. A second
misbehavior report was issued to Amaker as a result of
that failure to comply with the directive of prison staff,
resulting in a finding of guilt, following a Tier III hearing,
and the imposition of a penalty which included six months of
disciplinary confinement in a special housing unit (“SHU”),
again with a corresponding loss of privileges. 8 Id.; see also
Mans Aff. (Dkt. No. 229–14) Exh. C.
On December 26, 2001 the DOCS Deputy Commissioner for
Correctional Facilities, Lucien J. LeClaire, Jr., wrote to the
plaintiff to inform him that in the event of an inmate's refusal
to provide requested DNA samples corrections officials
were authorized to obtain the required sample through the
use of reasonable force, and that “appropriate additional
disciplinary sanctions” could be imposed, further noting that
upon investigation into the matter, apparently based upon
a complaint lodged by the plaintiff, it was determined that
in the course of their dealings with him corrections staff
had “acted appropriately and in accordance with policies
and procedures set by the [DOCS] governing DNA testing.”
Amended Complaint (Dkt. No. 78) Exh. A–5; see also Mans
Aff. (Dkt. No. 229–14) Exh. D. Despite that letter, Amaker
persisted in his refusal to provide the required DNA sample,
leading to further disciplinary action against him. 9 Amended
Complaint (Dkt. No. 78) ¶¶ 23–26.
Among the claims interposed by the plaintiff in his second
amended complaint are those surrounding the requirement
that he provide a DNA sample pursuant to New York's
Statutory DNA database regime and the imposition of the
discipline based upon his repeated refusals to comply with
directives to that effect. In asserting those claims plaintiff does
not chart a new path, but instead raises claims similar to those
which have previously been raised by him and other fellow
inmates, and uniformly rejected by the courts.
*6 On the heels of the decision by the New York Court of
Appeals in People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97,
633 N.E.2d 451 (1994) holding, inter alia, that DNA evidence
is admissible in a criminal trial, the New York Legislature
enacted a series of provisions aimed at the creation of a DNA
databank. Zarie v. Beringer, No. Civ. 9:01–CV–1865, 2003
WL 57918, at *3 (N.D.N.Y. Jan. 7, 2003) (Sharpe, M.J.).
Among those was a statute authorizing the gathering of DNA
samples from individuals convicted of certain offenses after
January 1, 1996. See 1994 N.Y. Laws, ch. 737, §§ 1, 3; see
also Nicholas v. Goord, 430 F.3d 652, 654 n. 1 (2d Cir.2005).
In 1999 that provision was amended to apply to any person
convicted of certain prescribed offenses, including murder,
prior to the statute's effective date, provided that at the time
of amendment he or she was still serving a prison sentence
imposed in connection with the earlier offense. 1999 N.Y.
Laws, ch 560, § 9; see Nicholas, 430 F.3d at 654 n. 1.
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Since its enactment New York's DNA indexing provision,
like similar provisions from other jurisdictions, has withstood
various challenges, including to its constitutionality. See, e.g.,
United States v. Amerson, 483 F.3d 73, 75 (2d Cir.2007);
Nicholas, 430 F.3d at 672. In response to one such challenge,
the Second Circuit has held that the DNA indexing provision
is lawful, concluding that special needs of the state giving
rise to enactment of the statute trump the relatively minimal
privacy interests and intrusion associated with a DNA
sampling requirement. Nicholas, 430 F.3d at 671–72; see also
Roe v. Marcotte, 193 F.3d 72, 78–80 (2d Cir.1999) (upholding
a Connecticut DNA indexing statute substantially similar to
New York's DNA provisions).
The basis for plaintiff's challenge in this case to the
constitutionality of the DNA collection requirement is not
entirely clear from his amended complaint and motion
opposition papers. This uncertainty is of no moment,
however, since the validity of New York's DNA indexing
statute has been upheld by courts, including in this circuit,
“over almost every conceivable constitutional challenge.”
Jackson v. Ricks, No. 9:02–CV–00773, 2006 WL 2023570, at
*23 (N.D.N.Y. July 18, 2006) (Sharpe, D.J. and Lowe, M.J .)
(collecting cases); see also Doe v. Moore, 410 F.3d 1337,
1349–50 (11th Cir.2005) (upholding Florida's sex offender
DNA collection statute in the face of equal protection and due
process challenges).
In challenging New York's DNA enactment plaintiff appears
to be crafting an argument which is based upon alleged non-
compliance with its statutory empowering provisions, under
which the Division of Criminal Justice Services (“DCJS”) is
tasked with establishing the required notification procedures.
That argument, however, appears to present questions of
compliance with state law and regulation which are not
cognizable under section 1983. See Pollnow v. Glennon, 757
F.2d 496, 501 (2d Cir.1985).
*7 Regardless of the nature of his challenge to New York's
indexing provision, Amaker is now precluded from pursuing
that claim by virtue of a prior decision from this court
addressing a similar challenge by him. Among the claims
which he raised in Amaker II were those addressed to the
efforts of DOCS employees, including corrections officials
at Upstate, to collect a DNA sample from him. Plaintiff's
challenge in that action to the constitutionality of New York's
DNA indexing provisions was resolved against him based
upon the issuance on November 30, 2007 of a report and
recommendation by United States Magistrate Judge David R.
Homer, and approval of that report, in pertinent part, by Chief
Judge Norman A. Mordue on July 10, 2008. See Amaker II,
Dkt. Nos. 160, 167.
Since the arguments now asserted in connection with the
DNA challenge were or could have been raised by Amaker
in his prior action, he is precluded from now relitigating
those claims. See Akhenaten v. Najee, LLC, 544 F.Supp.2d
320, 327–28 (S.D.N.Y.2008). Accordingly, the portion of
plaintiff's amended complaint which challenges the testing
requirements under the DNA identification indexing law
lacks merit, and is subject to dismissal.
C. The Torture Victim Protection Act of 1991
Among the claims set forth in plaintiff's complaint, as
amended, is a cause of action under the Torture Victim
Protection Act of 1991, (the “TVPA”), Pub.L. No. 102–256,
106 S. Stat. 73 (1992), based upon defendants' actions toward
him. Amended Complaint (Dkt. No. 78) ¶¶ 28, 34, 36. In
their motion, defendants also seek summary dismissal of this
claim, as a matter of law.
The TVPA provides, in relevant part, that
[a]n individual who, under actual or
apparent authority, or color of law,
of any foreign nation (1) subjects an
individual to torture shall, in a civil
action, be liable for damages to that
individual; ...
Pub.L. No. 105–256, § 2(a), 106 Stat. at 73 (emphasis
added). As can be seen, by its express terms the TVPA
applies only to those who act under the authority of a foreign
nation. See In re: Agent Orange Product Liability Litig.,
373 F.Supp.2d 7, 110–13 (E.D.N.Y.2005); see also Arar v.
Ashcroft, 414 F.Supp.2d 250, 264 (E.D.N.Y.2006), aff'd, 532
F.3d 157 (2d Cir.2008). Since Amaker plainly cannot meet
this requirement, his cause of action under the TVPA is
deficient as a matter of law, and thus subject to dismissal.
D. Property Loss
Although the portion of his complaint in which he
summarizes his claims does not reference such a cause
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of action, elsewhere in that pleading Amaker alleges that
certain of his property was withheld by defendants Perry
and Baniler, and later destroyed by defendant LaClair. 10
Amended Complaint (Dkt. No. 78) ¶ 21. Defendants also seek
dismissal of this potential claim as being without merit.
It is well-settled that no constitutionally cognizable cause of
action exists for the destruction or loss of a prison inmate's
property, provided that an adequate remedy is afforded by
the state courts for such deprivation. Griffin v. Komenecky,
No. 95–CV–796, 1997 WL 204313, at *2 (N.D.N.Y. Apr.
14, 1997) (Scullin, J.). In this instance, plaintiff was entitled
to avail himself of the mechanism prescribed under section
nine of the New York Court of Claims Act to redress his
loss of property claim. See id.; see also Brooks v. Chappius,
450 F.Supp.2d 220, 226–27 (W.D.N.Y.2006). Accordingly,
plaintiff's loss of property cause of action is without merit,
and subject to dismissal as a matter of law. See Brooks, 450
F.Supp.2d at 227.
E. Eleventh Amendment/Sovereign Immunity
*8 Plaintiff's claims in this action are brought against the
various named defendants, both as individuals and in their
official capacities. See, e.g., Amended Complaint (Dkt. No.
78) ¶ 1. Noting that plaintiff's claims against the defendants
in their official capacities are tantamount to those against the
State, defendants seek their dismissal.
The Eleventh Amendment protects a state against suits
brought in federal court by citizens of that state, regardless of
the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781,
782, 98 S.Ct. 3057, 3057–58 (1978). This absolute immunity
which states enjoy under the Eleventh Amendment extends
both to state agencies, and in favor of state officials sued
for damages in their official capacities when the essence of
the claim involved seeks recovery from the state as the real
party in interest. 11 Richards v. State of New York Appellate
Division, Second Dep't, 597 F.Supp. 689, 691 (E.D.N.Y.1984)
(citing Pugh and Cory v. White, 457 U.S. 85, 89–91, 102 S.Ct.
2325, 2328–29 (1982)). “To the extent that a state official
is sued for damages in his official capacity ... the official
is entitled to invoke the Eleventh Amendment immunity
belonging to the state.” 12 Hafer v. Melo, 502 U.S. 21, 25, 112
S.Ct. 358, 361 (1991); Kentucky v. Graham, 473 U.S. 159,
166–67, 105 S.Ct. 3099, 3105 (1985).
Since plaintiff's damage claims against the named defendants
in their official capacities are in reality claims against the
State of New York, thus exemplifying those against which the
Eleventh Amendment protects, they are subject to dismissal.
Daisernia v. State of New York, 582 F.Supp. 792, 798–
99 (N.D.N.Y.1984) (McCurn, J.). I therefore recommend
that this portion of defendants' motion be granted, and
that plaintiff's damage claim against the defendants in their
capacities as state officials be dismissed.
F. Plaintiff's Court Access Claims
Scattered intermittently throughout plaintiff's complaint are
allegations that through their actions defendants denied him
access to the courts, in violation of his rights under the
First Amendment. Plaintiff's court access denial claims are
based principally upon his contention that prison law library
facilities available to him were inadequate, and additionally
that through their actions corrections workers precluded him
from accessing those materials. See Amended Complaint
(Dkt. No. 78) ¶¶ 7, 16, 32. Defendants seek dismissal
of those claims based principally upon plaintiff's failure
to demonstrate the existence of any injury or prejudice
experienced as a result of their actions.
An inmate's constitutional right to “meaningful” access
to the courts is well-recognized and firmly established.
Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495
(1977) (citations and internal quotation marks omitted).
Although in Bounds the Supreme Court held that this right
of access requires prison authorities “to assist inmates in
the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law[,]” id. at 828, 97
S.Ct. at 1498, the Court later clarified that
*9 prison law libraries and
legal assistance programs are not
ends in themselves, but only the
means for ensuring a reasonably
adequate opportunity to present
claimed violations of fundamental
constitutional rights to the courts.
Because Bounds did not create an
abstract, freestanding right to a law
library or legal assistance, an inmate
cannot establish relevant actual injury
simply by establishing that his prison's
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law library or legal assistance program
is subpar in some theoretical sense.
Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180
(1996) (internal quotations and citations omitted). Instead,
an inmate “must go one step further and demonstrate that
the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim.” Id. In
other words, to establish a violation of the right of access
to the courts, a plaintiff must demonstrate that defendants'
interference caused him or her actual injury—that is, that a
“nonfrivolous legal claim had been frustrated or was being
impeded” as a result of defendants' conduct. 13 Id. at 353, 116
S.Ct. at 2181.
In support of his court access claim plaintiff maintains that
he was denied law library access between January 2, 2001
and January 18, 2001, and again from the filing of a second
grievance related to library access on February 26, 2001
until March 5, 2001. Amended Complaint (Dkt. No. 78)
¶ 16. Plaintiff contends that this lack of access effectively
precluded him from filing a motion to compel—presumably
related to discovery—in a pending federal court action. 14 Id.
Plaintiff's library access claims are addressed in a declaration
given by Michael McKinnon, the DOCS employee charged
with oversight of the law library at Clinton. See McKinnon
Decl. (Dkt. No. 229–4) ¶¶ 1–2. In that declaration McKinnon
describes the law library facilities and procedures at Clinton,
including the established protocol for requesting library
access. Id. ¶¶ 2–3. McKinnon notes that despite plaintiff's
allegations to the contrary, see Amended Complaint (Dkt. No.
78) ¶ 7, he never denied library services to the plaintiff or
any other inmate when faced with a court imposed deadline.
Id. ¶ 6. McKinnon also notes that over the four month
period during which the plaintiff could have commenced a
proceeding under New York Civil Practice Law and Rules
Article 78 to challenge the disciplinary action initiated in June
of 1998, one of the potential legal proceedings for which
he could have requested access to library facilities, he was
granted library access on seven occasions during July, eleven
times in August, five times in September and on six occasions
in October of 1998, and that in the following months he was
permitted use of the library facilities on approximately ten
days in November of 1998 and nine times in December of that
year. Id. ¶ 6. According to that declaration, records at Clinton
also show that between June of 1999 and September, 2001,
plaintiff was scheduled for more than four hundred library call
outs, and was granted special access status on February 24,
2001 in light of an impending March 26, 2001 court deadline.
Id. ¶ 9.
*10 The existence of prejudice is an essential element
of a First Amendment court access denial claim. Lewis,
518 U.S. at 353, 116 S.Ct. at 2181. It is true that in his
amended complaint plaintiff does claim, although in general
and conclusory terms, that he was prejudiced by defendants'
actions, allegedly having missed a court ordered deadline
on more than one occasion, causing adverse consequences
in connection with his legal actions. See, e.g., Amended
Complaint (Dkt. No. 78) ¶¶ 16, 32. Faced with defendants'
motion raising lack of prejudice, however, plaintiff has failed
to offer any specifics regarding those claims and to adduce
proof from which a reasonable factfinder could conclude that
he did indeed experience prejudice by virtue of defendants'
failure to provide him with library access, and to mail court
documents, leaving instead only his conclusory allegations
without underlying evidentiary support.
In sum, the record now before the court neither supports
plaintiff's claim that he was denied access to adequate library
facilities while at Clinton, nor does it establish the existence
of prejudice suffered as a result of any such deprivation, if
indeed it did occur. Accordingly, I recommend dismissal of
plaintiff's court access claims as a matter of law.
G. Plaintiff's RICO Cause of Action
In broad and conclusory terms devoid of specifics, plaintiff
alleges that various of the defendants named in the action have
violated the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. § 1961 et seq. Amended Complaint
(Dkt. No. 78) ¶¶ 26, 35. Plaintiff's RICO claim appears to be
predicated upon an alleged mail fraud scheme engaged in by
corrections workers and “approved by Comm. Goord, Supt.
Senkowski” to steal inmate mail, and includes his request
that the court refer the matter to the United States Attorney
for prosecution. Id. at ¶¶ 26, 35, 39. Interpreting plaintiff's
complaint as seeking criminal prosecution for the alleged
violation, and noting that the prerequisite for establishing a
claim under that provision cannot be met in this instance,
defendants seek dismissal of plaintiff's RICO claim. Despite
his submission of comprehensive materials in opposition to
defendants' motion, including a thirty-eight page affidavit and
a twenty-one page memorandum of law, plaintiff does not
address this portion of defendants' motion.
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The substantive prohibitions under RICO are set forth
principally in 18 U.S.C. § 1962(a)-(c); subdivision (d) of that
provision prohibits parties from conspiring to violate one or
more of those substantive provisions. In relevant part, section
1962 provides that
[i]t shall be unlawful for any person
employed by or associated with any
enterprise engaged in, or the activities
which affect, interstate or foreign
commerce, to conduct or participate,
directly or indirectly, in the conduct
of such enterprise's affairs through
a pattern of racketeering activity or
collection of unlawful debt.
*11 18 U.S.C. § 1962(c); see Salinas v. United States, 522
U.S. 52, 62, 118 S.Ct. 469, 476 (1997).
In addition to providing for potential criminal prosecution,
RICO also affords a civil right of action for violation of its
provisions, authorizing recovery of treble damages as well
as costs of the action, including reasonable attorneys' fees,
in the event of an established violation 18 U.S.C. § 1964(c).
See Klehr v. A.O. Smith Corp., 521 U.S. 179, 183, 117 S.Ct.
1984, 1987–88 (1997). To plead a cognizable civil RICO
claim, a party must allege “(1) conduct, (2) of an enterprise,
(3) through a pattern, (4) of racketeering activity,” as well
as “injury to business or property as a result of the RICO
violation.” Anatian v. Coutts Bank (Switzerland) Ltd., 193
F.3d 85, 88 (2d Cir.1999).
The pleading of a civil RICO violation is subject to the
heightened requirement that its supporting allegations must
be pleaded with particularity. See Fed.R.Civ.P. 9(b); see also
Anatian, 193 F.3d at 88–89. Additionally, the court's local
rules require that when a civil RICO claim is asserted before
this court, a RICO statement containing certain specified
information must be filed by the party raising the claim.
N.D.N.Y.L.R. 9.2. A review of the record in this case reveals
that neither of these critical requirements has been met,
thereby providing a threshold basis for dismissal of plaintiff's
RICO claim. See Spoto v. Herkimer County Trust, No. 99–
CV–1476, 2000 WL 533293, at *3 n. 2 (N.D.N.Y. Apr. 27,
2000) (Munson, J.).
Turning to the merits, it is clear that the record falls
considerably short of establishing a basis upon which
a reasonable factfinder could conclude that the requisite
elements of a RICO claim have been established. While
plaintiff alleges in conclusory fashion the existence of mail
fraud at the prison facilities in which he was housed, and mail
fraud potentially qualifies as racketeering activity, see Anza v.
Ideal Steel Supply Corp., 547 U.S. 451, 454, 125 S.Ct. 1991,
1995 (2006), the record fails to disclose the existence of a
conspiracy of two or more persons, lacks evidence of two or
more acts constituting a pattern of racketeering activity, does
not identify the relevant “enterprise”, fails to demonstrate
how the conspirators, through the pattern of racketeering
activity, conducted the enterprise, and alleges no injury to
business or property resulting from defendants' actions. See
Amended Complaint (Dkt. No. 78) ¶¶ 26, 35. Since the record
fails to disclose evidence from which a reasonable factfinder
in this case could conclude that the requisite elements to
sustain a civil RICO claim have been met, I recommend
dismissal of that cause of action on the merits. 15
H. Deliberate Medical Indifference
One of the central themes presented in plaintiff's prolix,
narrative-styled amended complaint is his claim that certain
of the defendants have failed to properly treat his various
medical conditions, many of which are not specified with any
degree of particularity. Defendants contend that based upon
the record now before the court they are entitled to dismissal
of that claim as a matter of law, arguing that plaintiff neither
suffers from a serious medical need, nor were the named
defendants subjectively and deliberately indifferent to any
such need.
*12 The Eighth Amendment's prohibition of cruel and
unusual punishment encompasses punishments that involve
the “unnecessary and wanton infliction of pain” and are
incompatible with “the evolving standards of decency that
mark the progress of a maturing society.” Estelle v. Gamble,
429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976); see
also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076,
1084 (1986) (citing, inter alia, Estelle ). While the Eighth
Amendment does not mandate comfortable prisons, neither
does it tolerate inhumane treatment of those in confinement;
thus the conditions of an inmate's confinement are subject to
Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S.
825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v.
Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)).
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A claim alleging that prison conditions violate the Eighth
Amendment must satisfy both an objective and subjective
requirement—the conditions must be “sufficiently serious”
from an objective point of view, and the plaintiff must
demonstrate that prison officials acted subjectively with
“deliberate indifference.” See Leach v. Dufrain, 103
F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (citing Wilson
v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 (1991)); Waldo v.
Goord, No. 97–CV–1385, 1998 WL 713809, at *2 (N.D.N.Y.
Oct. 1, 1998) (Kahn, J. and Homer, M .J.); see also, generally,
Wilson, 501 U.S. 294, 111 S.Ct. 2321. Deliberate indifference
exists if an official “knows of and disregards an excessive
risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1978;
Leach, 103 F.Supp.2d at 546 (citing Farmer ); Waldo, 1998
WL 713809, at *2 (same).
In order to state a medical indifference claim under the
Eighth Amendment, a plaintiff must allege a deprivation
involving a medical need which is, in objective terms, “
‘sufficiently serious' “. Hathaway v. Coughlin, 37 F.3d 63, 66
(2d Cir.1994) (citing Wilson, 501 U.S. at 298, 111 S.Ct. at
2324), cert. denied sub nom., Foote v. Hathaway, 513 U.S.
1154, 115 S.Ct. 1108 (1995). A medical need is serious for
constitutional purposes if it presents “ ‘a condition of urgency’
that may result in ‘degeneration’ or ‘extreme pain’.” Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (citations
omitted). A serious medical need can also exist where “
‘failure to treat a prisoner's condition could result in further
significant injury or the unnecessary and wanton infliction
of pain’ “; since medical conditions vary in severity, a
decision to leave a condition untreated may or may not be
unconstitutional, depending on the facts. Harrison v. Barkley,
219 F.3d 132, 136–37 (2d Cir.2000) (quoting, inter alia,
Chance ). Relevant factors in making this determination
include injury that a “ ‘reasonable doctor or patient would find
important and worthy of comment or treatment’ “, a condition
that “ ‘significantly affects' “ a prisoner's daily activities, or
causes “ ‘chronic and substantial pain.’ “ Chance, 43 F.3d at
701 (citation omitted); LaFave v. Clinton County, No. CIV.
9:00CV774, 2002 WL 31309244, at *2–3 (N.D.N.Y. Apr. 3,
2002) (Sharpe, M.J.).
*13 Deliberate indifference, in a constitutional sense, exists
if an official knows of and disregards an excessive risk to
inmate health or safety; the official must “both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979;
Leach, 103 F.Supp.2d at 546 (citing Farmer ); Waldo, 1998
WL 713809, at *2 (same). It is well-established, however,
that mere disagreement with a prescribed course of treatment,
or even a claim that negligence or medical malpractice has
occurred, does not provide a basis to find a violation of the
Eighth Amendment. Estelle, 429 U.S. at 105–06, 97 S.Ct. at
201–02; Chance, 143 F.3d at 703; Ross v. Kelly, 784 F.Supp.
35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied,
506 U.S. 1040, 113 S.Ct. 828 (1992). The question of what
diagnostic techniques and treatments should be administered
to an inmate is a “classic example of a matter for medical
judgment”; accordingly, prison medical personnel are vested
with broad discretion to determine what method of care and
treatment to provide to their patients. Estelle, 429 U.S. at 107,
97 S.Ct. at 293; Chance, 143 F.3d at 703; Rosales v. Coughlin,
10 F.Supp.2d 261, 264 (W.D.N.Y.1998).
Plaintiff's medical indifference claims, while referenced
elsewhere, are summarized in paragraph twenty-seven of his
amended complaint, and augmented in considerably greater
detail in his summary judgment submissions including,
notably, his affidavit. Plaintiff's medical concerns appear to
center upon disagreement over the course of defendants'
treatment of his diminished eyesight; chronic back pain,
diagnosed as degenerative disc disease; and pain, “clicking
and popping” in his knee. Amended Complaint (Dkt. No. 78)
¶¶ 12, 27. Generally speaking, plaintiff's medical indifference
claim recites a litany of instances in which plaintiff did
not receive desired medication, medical equipment, physical
therapy, or treatment for his conditions. 16 See Amended
Complaint (Dkt. No. 78) ¶ 27.
1. Serious Medical Needs
In their motion, defendants maintain that none of the
conditions upon which plaintiff's medical indifference claims
are predicated rise to a level of constitutional significance.
In Amaker II the court found that plaintiff's claims regarding
his vision and delay in eye treatment did not establish the
existence of a serious medical need or injury. See Report and
Recommendation in Amaker II (Dkt. No. 160) at pp. 15–
16 and Memorandum–Decision and Order (Dkt. No. 167) at
pp. 3, 6. Similarly, the Amaker II court concluded that in
complaining regarding the treatment of his knee, including
denial of magnetic resonance imaging (“MRI”) testing and
knee braces, plaintiff also failed to make the threshold
requirement of establishing a serious physical injury or need.
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Id . at 16–17. Likewise, while noting a division among the
courts regarding this issue, the court in that case nonetheless
concluded that plaintiff's claim of abdominal pain, as drafted,
did not successfully present a material issue of fact regarding
serious medical need. Id. at 17.
*14 Having carefully reviewed the record now presented,
like the court in Amaker II I doubt plaintiff's ability to
establish, at trial, the existence of a serious medical condition
of constitutional significance to which the defendants were
deliberately indifferent. Because I find that Amaker cannot
establish indifference on the part of defendants to any of his
medical needs, regardless of whether they were sufficiently
serious to trigger protections of the Eighth Amendment, and
defendants do not appear to press the issue, I nonetheless
find it unnecessary to address the sufficiency of plaintiff's
allegations in this regard.
2. Deliberate Indifference
Turning to the subjective element of the deliberate
indifference inquiry I find, as did the court in Amaker II,
that rather than disclosing any indifference on the part of
prison medical officials to plaintiff's medical needs, the record
instead reflects a comprehensive and at times intense pattern
of treatment for plaintiff's various medical conditions which,
though plainly not to his complete liking, easily fulfills
constitutionally mandated minimal requirements.
Plaintiff's medical indifference claim appears to relate to
treatment received at both of the correctional facilities at issue
in this case, although the vast majority of those allegations
relate to his complaints regarding medical attention received
while at Clinton. To the extent that plaintiff's claims involve
the sufficiency of medical treatment administered at Upstate,
similar claims were carefully reviewed by the court in
Amaker II, resulting in a finding that the defendants were not
deliberately indifferent to his serious medical needs during
the time of his incarceration at Upstate. See Report and
Recommendation in Amaker II (Dkt. No. 160) at pp. 15–17.
That determination is dispositive of the portion of plaintiff's
medical indifference claim in this action related to his medical
care at Upstate. 17 See Akhenaten, 544 F.Supp.2d at 327–28.
Turning to plaintiff's medical treatment while at Clinton,
medical records of plaintiff's care at that facility reflect that
between June 8, 1999 and December 1, 1999—the period
covered by his complaints regarding medical care at Clinton
—he was seen on approximately one hundred occasions
regarding complaints concerning his back, knee, and neck
pain, chronic headaches, and various other symptoms by an
array of health care providers which included prison doctors,
outside specialists, physician assistants, therapists and nurses.
See Mans Aff. (Dkt. No. 229–14) Exh. A (filed under
seal); see also Johnson Decl. (Dkt. No. 229–3) ¶ 7. During
that time plaintiff was provided with medical examinations,
consultations, physical therapy, knee braces and supports, and
various medications, and additionally was the subject of x-
rays and magnetic resonance imaging (“MRI”) testing. Id.
One of the conditions of which plaintiff complains relates
to chronic back pain. Plaintiff's medical records reveal that
he has been diagnosed as suffering from degenerative disc
disease. Mans Aff. (Dkt. No. 229–14) Exh. A; see also
Johnson Decl. (Dkt. No. 229–3) ¶ 7. According to Dr.
Vonda Johnson, the Medical Director at Clinton, while certain
treatment regimens may afford some measure of relief for
that condition, depending upon the particular patient, it
cannot necessarily be “fixed” through surgery, medication,
or physical therapy. Johnson Decl. (Dkt. No. 229–3) ¶ 9.
In any event, plaintiff's health records reveal that plaintiff
was provided considerable testing and treatment, including
physical therapy, in an effort to address that condition. See
generally Mans Aff. (Dkt. No. 229–14) Exh. A; Johnson
Decl. (Dkt. No. 229–3) ¶ 11. Evaluations arranged by prison
officials regarding plaintiff's back condition have included
MRI testing as well as an EMG study/ nerve conduction study
on November 1, 1999, ordered by Dr. Ellen. Johnson Decl.
(Dkt. No. 229–3) ¶ 11.
*15 Another of plaintiff's complaints relates to treatment
received for his knee. Plaintiff's medical records reveal that
a bilateral physical examination of Amaker's knees was
conducted on November 15, 1999 by Dr. Ellen. Manns Aff.
(Dkt. No. 229–14) Exh. A, 11/1/99, 11/8/99, 11/15/99 Entries;
Johnson Decl. (Dkt. No. 229–3) ¶ 11. Neither the results of
Dr. Ellen's examination nor anything contained in plaintiff's
records was viewed as indicating the need to perform MRI
testing on his knees. Id.
The specifics of plaintiff's complaints regarding his knee
condition include allegations that prison medical personnel
failed to provide him with proper knee braces, failed to order
MRI testing, and denied his requests to see a specialist to
address the pain, clicking and popping being experienced
in both knees. Plaintiff's conclusory allegations of not being
provided with a knee brace are belied by the record. On
April 13, 1999 one neoprene right knee brace was received at
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the facility for the plaintiff, with an indication that the other
was back-ordered. See Mans Aff. (Dkt. No. 229–14) Exh.
A, 4/13/99 entry. In any event upon receipt of the special
neoprene knee braces, they were refused by the plaintiff. Id.,
1/6/00 Interdepartmental Communication.
Plaintiff's medical records reflect that medical officials at
Clinton were in fact fully cognizant of plaintiff's complaints
regarding knee pain, and took measures to address that
condition. On November 8, 1999 a neurological examination
of plaintiff's lower extremities was conducted, followed
by a physical examination of both of plaintiff's knees on
November 15, 1999. Johnson Decl. (Dkt. No. 229–3) ¶ 11;
Mans Aff. (Dkt. No. 229–14) Exh. A, 11/1/99, 11/8/99,
11/15/99 entries. The results of those examinations by Dr.
Ellen revealed nothing to indicate the need for MRI testing.
While plaintiff challenges this determination, unsupported
by any evidence suggesting that the opinions of Dr. Ellen
were not medically appropriate, his claim in this regard
represents nothing more than disagreement over a chosen
course of treatment, and is insufficient to support a claim of
indifference. Estelle, 429 U.S. at 105–06, 97 S.Ct. at 201–02;
Chance, 143 F.3d at 703; Ross v. Kelly, 784 F.Supp. 35, 44
(W.D.N.Y.), aff'd, 970 F.3d 296 (2d Cir.), cert. denied, 506
U.S. 1040, 113 S.Ct. 828 (1992).
Another of plaintiff's medical complaints stems from the
claim that while at Clinton he was denied treatment by Dr.
Lee for a period of three months. Amended Complaint (Dkt.
No. 78) ¶ 8. Neither plaintiff's complaint nor his motion
submission, however, contains specifics regarding the time
period involved. Moreover, while there may well have been
periods of such a duration over which he was not seen
by a doctor, a review of plaintiff's medical records fails to
disclose any three month interval during which he was not
medically treated by any DOCS medical personnel at Clinton.
See Mans Aff. (Dkt. No. 229–14) Exh. A. Despite plaintiff's
apparent belief to the contrary, the Eighth Amendment does
not guarantee a prison inmate unfettered access to a prison
physician at his or her insistence. See Harrison v. Barkley, 219
F.3d 132, 142 (2d Cir.2000) (“ ‘[S]ociety does not expect that
prisoners will have unqualified access to health care ....‘ ”)
(quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995
(1992)).
*16 The vast majority of plaintiff's medical complaints
surround the belief that he was not provided with adequate
physical therapy, his disagreement over being told that he
would have to pay for replacement of his broken eyeglasses,
and the denial of appropriate shower and gym passes. 18
These complaints fall well short of establishing deliberate
medical indifference of constitutional proportions on the part
of prison officials at Clinton and Upstate. As the Second
Circuit has noted,
[i]t must be remembered that the State is not
constitutionally obligated, much as it may be desired by
inmates, to construct a perfect plan for [medical] care that
exceeds what the average reasonable person would expect
or avail herself of in life outside the prison walls. [A]
correctional facility is not a health spa, but a prison in which
convicted felons are incarcerated. Common experience
indicates that the great majority of ... prisoners would not
in freedom or on parole enjoy the excellence in [medical]
care which the plaintiffs understandably seek .... We are
governed by the principle that the objective is not to
impose upon a state prison a model system of [medical]
care beyond average needs but to provide the minimum
level of [medical] care required by the Constitution. The
Constitution does not command that inmates be given the
kind of medical attention that judges would wish to have for
themselves.... The essential test is one of medical necessity
and not one simply of desirability.
Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986) (internal
quotations and citations omitted).
Plaintiff's ambulatory health record, which is both extensive
and comprehensive, has been reviewed by Dr. Vonda
Johnson, the Medical Director at Clinton. Based upon her
professional judgment, Dr. Johnson opines that the plaintiff
neither suffered from any acute medical condition requiring
immediate medical care and treatment or which resulted
in harm to his health or well-being, nor was he denied
appropriate treatment by medical and nursing staff both at
Clinton and Upstate, as well as by any outside specialists
required under the circumstances. Johnson Decl. (Dkt. No.
299–3) ¶¶ 14–15. Having engaged in a careful review of
plaintiff's medical records, informed by plaintiff's arguments
as well as Dr. Johnson's opinions, I am of the view that no
reasonable factfinder could conclude that defendants were
deliberately indifferent to any serious medical condition
suffered by the plaintiff, and therefore recommend dismissal
of plaintiff's deliberate indifference claims as a matter of law.
I. Retaliation
In his amended complaint, although with the same degree
of indefiniteness that has plagued his submissions in other
substantive areas, plaintiff also asserts claims of violation
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of his First Amendment rights based upon retaliation for
having engaged in protected activity, including the filing
of grievances. Defendants also seek dismissal of plaintiff's
retaliation claim as fatally nebulous and unsupported.
*17 When adverse action is taken by prison officials against
an inmate, motivated by the inmate's exercise of a right
protected under the Constitution, including the free speech
provisions of the First Amendment, a cognizable retaliation
claim under 42 U.S.C. § 1983 lies. See Franco v. Kelly,
854 F.2d 584, 588–90 (2d Cir.1988). As the Second Circuit
has repeatedly cautioned, however, such claims are easily
incanted and inmates often attribute adverse action, including
the issuance of misbehavior reports, to retaliatory animus;
courts must therefore approach such claims “with skepticism
and particular care.” Dawes v. Walker, 239 F .3d 489, 491
(2d Cir.2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13
(2d Cir.1983)), overruled on other grounds, Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); Davis v. Goord, 320 F.3d
346, 352 (2d Cir.2003) (same).
In order to state a prima facie claim under section 1983 for
retaliatory conduct, a plaintiff must advance non-conclusory
allegations establishing that 1) the conduct at issue was
protected; 2) the defendants took adverse action against the
plaintiff; and 3) there was a causal connection between the
protected activity and the adverse action—in other words,
that the protected conduct was a “substantial or motivating
factor” in the prison officials' decision to take action against
the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); Dillon v.
Morano, 497 F.3d 247, 251 (2d Cir.2007); Dawes, 239 F.3d at
492 (2d Cir.2001). If the plaintiff carries this burden, then to
avoid liability the defendants must show by a preponderance
of the evidence that they would have taken action against
the plaintiff “even in the absence of the protected conduct.”
Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. If taken
for both proper and improper reasons, state action may be
upheld if the action would have been taken based on the
proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79
(2d Cir.1996) (citations omitted).
Analysis of retaliation claims thus requires careful
consideration of the protected activity in which the inmate
plaintiff has engaged, the adverse action taken against
him or her, and the evidence tending to link the two.
When such claims, which are exceedingly case specific, are
alleged in only conclusory fashion, and are not supported
by evidence establishing the requisite nexus between any
protected activity and the adverse action complained of,
a defendant is entitled to the entry of summary judgment
dismissing plaintiff's retaliation claims. Flaherty, 713 F.2d at
13.
It should also be noted that personal involvement of a
named defendant in any alleged constitutional deprivation is
a prerequisite to an award of damages against that individual
under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d
Cir.1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880,
885 (2d Cir.1991) and McKinnon v. Patterson, 568 F.2d 930,
934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282
(1978)). In order to prevail on a section 1983 cause of action
against an individual, a plaintiff must show some tangible
connection between the constitutional violation alleged and
that particular defendant. See Bass v. Jackson, 790 F.2d
260, 263 (2d Cir.1986). As is true of other types of claims,
this principle applies to causes of action claiming unlawful
retaliation. See Abascal v. Hilton, No. 04–CV–1401, 2008
WL 268366, at *10 (N.D.N.Y. Jan. 30, 2008) (Kahn, D.J. and
Lowe, M.J.).
*18 Analysis of plaintiff's retaliation cause of action is
complicated by virtue of his failure in most instances to state,
with any modicum of clarity, what specific protected activity
triggered the retaliatory response and what the resulting
adverse action was, including to articulate the timeframe
involved. Among the actions apparently attributed by Amaker
to retaliatory animus are searches of his cell, conducted on
March 22 and 23, 1999. Amended Complaint (Dkt. No. 78) ¶
10. Defendants' submissions, however, reveal that the first of
those two searches was based upon suspicion that the plaintiff,
one of several inmates present in the law library at the
time a corrections officer's handcuff key case was discovered
missing, could be in possession of that contraband. 19 Bell
Decl. (Dkt. No. 229–10) ¶ 6. The second of those searches
was a routine search performed in accordance with DOCS
directives requiring periodic random cell searches. Id. ¶¶ 6–8.
Since it therefore appears that both of those actions were taken
for independent and legitimate reasons, they cannot form the
basis of a retaliation claim. Mount Healthy City Bd. of Ed.,
429 U.S. at 287, 97 S.Ct. at 576; see also Lowrence v. Achtyl,
20 F.3d 529, 535 (2d Cir.1994).
Although it is far from clear, plaintiff also appears to
assert that the requirement imposed by prison officials
that he pay for spices and food consumed in connection
with his celebration of Ramadan was retaliatory. Amended
Complaint (Dkt. No. 78) ¶ 13. It is doubtful that a reasonable
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factfinder could conclude that this requirement rose to a
level sufficient to constitute an adverse action. Cf. Kole v.
Lappin, 551 F.Supp.2d 149, 155 (D.Conn.2008) (dismissing
plaintiff's retaliation claim based on her complaint that the
prison reduced the number of items sold as kosher-for
Passover for inmates in response to her filing a grievance
regarding the one hundred dollar spending limit). In any
event, more importantly, there is no evidence among any of
plaintiff's submissions which would establish the requisite
nexus between the imposition of that requirement and plaintiff
having engaged in protected activity.
Undeniably, it appears that the plaintiff in this case frequently
avails himself of his First Amendment right to complain,
by instituting litigation, filing grievances, and pursuing other
channels, regarding prison conditions and his treatment as
a DOCS inmate. It is also clear that the plaintiff has been
subject to disciplinary action by prison officials with some
regularity. While these two circumstances could suffice to
establish two of the three requisite elements to establish
a claim of unlawful retaliation, at least at the summary
judgment stage, the record is wholly lacking in evidence
from which a reasonable factfinder could conclude that the
third and critical element, linking one or more of the adverse
actions to plaintiff's protected activity, has been satisfied.
Accordingly, I recommend dismissal of plaintiff's retaliation
claim as a matter of law.
J. Equal Protection
*19 Plaintiff's complaint, as amended, also makes passing
reference to the denial by defendants of his right to equal
protection. See, e.g., Amended Complaint (Dkt. No. 78) ¶ 28,
33.
The Equal Protection Clause directs state actors to treat
similarly situated people alike. See City of Cleburne, Texas
v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249,
3254 (1985). To prove a violation of the Equal Protection
Clause, a plaintiff must demonstrate that he or she was
treated differently than others similarly situated as a result
of intentional or purposeful discrimination directed at an
identifiable or suspect class. See Giano v. Senkowski, 54 F.3d
1050, 1057 (2d Cir.1995) (citing, inter alia, McCleskey v.
Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767 (1987)). The
plaintiff must also show that the disparity in treatment “cannot
survive the appropriate level of scrutiny which, in the prison
setting, means that he must demonstrate that his treatment
was not reasonably related to [any] legitimate penological
interests.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005)
(quoting Shaw v. Murphy, 532 U.S. 223, 225, 121 S.Ct. 1475
(2001) (internal quotation marks omitted)).
In this instance neither plaintiff's complaint, as amended, nor
the record now before the court provides specifics to flesh
out plaintiff's equal protection claim. Presumably, the claim
is rooted in the alleged differentiation of prison officials in
their treatment of him, based upon his race. To be sure,
plaintiff's submissions indicate the use of at least one racial
epithet by prison officials. The record, however, is otherwise
devoid of evidence from which a reasonable factfinder could
conclude that the defendants discriminated as against the
plaintiff based upon his race or some other protected criteria.
Instead, plaintiff's allegations fall within the category of those
observed by the Second Circuit to be insufficient, the court
noting 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.” Barr
v. Abrahams, 810 F.2d 358, 363 (2d Cir.1987). Discerning
no basis upon which a reasonable factfinder could conclude
that the defendants have violated Amaker's right to equal
protection under the Fourteenth Amendment, I similarly
recommend dismissal of that claim.
K. Procedural Due Process
Plaintiff's amended complaint also asserts, once again in
wholly conclusory fashion, that his right to due process
was violated by the defendants. Conspicuously absent from
plaintiff's submissions, however, is an indication of what
cognizable liberty interests are implicated in this cause of
action, as well as illumination as to the reasons for his claim
that due process was not afforded.
To successfully state a claim under 42 U.S.C. § 1983 for the
denial of procedural due process arising out of a disciplinary
hearing, a plaintiff must show that he or she 1) possessed an
actual liberty interest, and 2) was deprived of that interest
without being afforded sufficient process. See Tellier v. Fields,
280 F.3d 69, 79–80 (2d Cir.2000) (citations omitted); Hynes,
143 F.3d at 658; Bedoya v. Coughlin, 91 F.3d 349, 351–52
(2d Cir.1996). The procedural safeguards to which a prison
inmate is entitled before being deprived of a constitutionally
cognizable liberty interest are wellestablished, the contours
of the requisite protections having been articulated in Wolff
v. McDonnell, 418 U .S. 539, 564–67, 94 S.Ct. 2963, 2978–
80 (1974). Under Wolff, the constitutionally mandated due
process requirements, include 1) written notice of the charges;
2) the opportunity to appear at a disciplinary hearing and
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present witnesses and evidence, subject to legitimate safety
and penological concerns; 3) a written statement by the
hearing officer explaining his or her decision and the reasons
for the action being taken; and 4) in some circumstances, the
right to assistance in preparing a defense. Wolff, 418 U.S.
at 564–67, 94 S.Ct. at 2978–80; see also Eng v. Coughlin,
858 F .2d 889, 897–98 (2d Cir.1988). In order to pass
muster under the Fourteenth Amendment, hearing officer's
disciplinary determination must garner the support of at least
“some evidence”. Superintendent v. Hill, 472 U.S. 445, 105
S.Ct. 2768 (1985).
*20 Having carefully searched the record now before the
court, I am unable to find that Amaker experienced the
deprivation of a constitutionally cognizable liberty interest
sufficient to trigger the protections afforded under the
Fourteenth Amendment. Moreover, even assuming arguendo
the existence of such a liberty interest, plaintiff's submissions
do not disclose any failure to comply with the constitutional
mandates of the Fourteenth Amendment, including those
articulated by the Supreme Court in Wolff. Accordingly, I
recommend dismissal of plaintiff's procedural due process
cause of action, as a matter of law.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's amended complaint, though rambling and
consisting of varied and wide-ranging claims based upon acts
allegedly occurring at both Clinton and Upstate, when boiled
down to its essence asserts claims of medical indifference,
constitutional violations based on DNA testing, retaliation,
and denial of access to the courts. Having carefully considered
the record now before the court I conclude that no factfinder
could find in plaintiff's favor on any of these claims, and that
defendants are thus entitled to dismissal of all claims against
them, as a matter of law. 20 Accordingly, it is hereby
RECOMMENDED that defendants' motion for summary
judgment dismissing plaintiff's complaint (Dkt. No. 229) be
GRANTED, and that plaintiff's complaint be DISMISSED in
its entirety; and it is further hereby
RECOMMENDED that in light of this disposition the motion
of defendant R. Rivera to dismiss plaintiff's claims against
him for failure to state a cause of action upon which relief
may be granted (Dkt. No. 237) be DENIED as moot.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have
ten (10) days within which to file written objections to the
foregoing report-recommendation. Any objections shall be
filed with the clerk of the court. FAILURE TO OBJECT TO
THIS REPORT WITHIN TEN DAYS WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is further ORDERED that the Clerk of the Court serve a
copy of this report and recommendation upon the parties in
accordance with this court's local rules.
All Citations
Not Reported in F.Supp.2d, 2009 WL 385413
Footnotes
1 Plaintiff filed an amended complaint purporting to add the New York State Senate and New York State
Assembly as Defendants, see Dkt. No. 78; however, in its May 13, 2002 Order, the Court, while granting
Plaintiff leave to amend, denied Plaintiff leave to add these entities as defendants, see Dkt. No. 75.
2 The Court notes that, in addition to Magistrate Judge Peebles' reasoning regarding Plaintiff's complaint about
Defendants' allegedly retaliatory searches of his cell, cell searches, even if retaliatory, do not offend the
Constitution and are not actionable. See Bumpus v. Canfield, 495 F.Supp.2d 316, 327 (W.D.N.Y.2007) (citing
Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)) (other citation omitted).
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1 Upstate is a maximum security prison comprised exclusively of special housing unit (“SHU”) cells in which
inmates are confined, generally though not always for disciplinary reasons, for twenty-three hours each day.
See Samuels v. Selsky, No. 01 CIV. 8235, 2002 WL 31040370, at *4 n. 11 (S.D.N.Y. Sept. 12, 2002).
2 The specifics of plaintiff's various causes of action will be discussed in more detail in the portions of this
report addressing each grouping of claims.
3 In addition to this action, plaintiff has commenced two other suits in this court. The first, Anthony D. Amaker
v. Glenn S. Goord, et al., Civil Action No. 03–CV–1003 (NAM/DRH) (N.D.N.Y., filed 2003) (“Amaker II” ),
addresses incidents occurring at Upstate as well as subsequent to plaintiff's transfer into the Downstate
Correctional Facility, and later to the Great Meadow Correctional Facility. A review of the relevant pleadings
from that case reflects significant overlap between the claims asserted in that action and those now before
the court. The other action, commenced by plaintiff on March 22, 2006 and encaptioned Anthony D. Amaker,
et al. v. Glenn S. Goord, et al., Civil Action No. 06–CV–0369 (GLS/RFT) (N.D.N.Y., filed 2006) (“Amaker III”
), was transferred to the Western District of New York on July 6, 2006, pursuant to 28 U.S.C. § 1404(a).
4 Also named as defendants in plaintiff's amended complaint were the New York State Senate and the New
York State Assembly. See Dkt. No. 78. Those entities, which are clearly not parties amenable to suit, have
not been formally joined as defendants in the action, however, in light of the issuance of an order on May 13,
2002 denying plaintiff's application for leave to amend to the extent that he sought permission to add them
as defendants. See Dkt. No. 75.
5 Among plaintiff's submissions in opposition to the pending motions is a request that the court strike an
affirmation submitted by defendants' counsel, Jeffrey P. Mans, Esq., as well as declarations of Dr. Vonda
Johnson and James Bell, from the record. Dkt. No. 240–03. Having reviewed the Johnson and Bell
declarations, I discern no basis to strike them from the record. Turning to Attorney Mans' declaration, I
find that it appears to be offered principally to describe the exhibits being submitted in connection with
defendants' motion and to set forth legal argument to supplement their memorandum. While the inclusion of
legal argument in such an attorney's affidavit is ordinarily not appropriate, Donahue v. Uno Restaurants, LLC,
No. 3:06–CV–53, 1006 WL 1373094, at *1 n. 1 (N.D.N.Y. May 16, 2006) (McAvoy, J.), and it is doubtful that
defendants' attorney is positioned to include in an affidavit assertions of fact beyond his personal knowledge,
Housing Works, Inc. v. Turner, No. 00 Civ. 1122, 2003 WL 22096475, at *1 (S.D.N.Y. Sept. 9, 2003), I have
chosen not to strike the affidavit, and instead to consider it solely for the limited purpose for which it is being
offered.
6 The DOCS conducts three types of inmate disciplinary hearings. Tier I hearings address the least serious
infractions, and can result in minor punishments such as the loss of recreation privileges. Tier II hearings
involve more serious infractions, and can result in penalties which include confinement for a period of time
in the Special Housing Unit (SHU). Tier III hearings concern the most serious violations, and could result in
unlimited SHU confinement and the loss of “good time” credits. See Hynes v. Squillace, 143 F.3d 653, 655
(2d Cir.), cert. denied, 525 U.S. 907, 119 S.Ct. 246 (1998).
7 Keeplock is a form of confinement restricting an inmate to his or her cell, separating the inmate from others,
and depriving him or her of participation in normal prison activities. Gittens v. LeFevre, 891 F.2d 38, 39 (2d
Cir.1989); Warburton v. Goord, 14 F.Supp.2d 289, 293 (W.D.N.Y.1998) (citing Gittens ); Tinsley v. Greene,
No. 95–CV–1765, 1997 WL 160124, at *2 n. 2 (N .D.N.Y. Mar. 31, 1997) (Pooler, D.J. & Homer, M.J.)
(citing, inter alia, Green v. Bauvi, 46 F.3d 189, 192 (2d Cir.1995)). Inmate conditions while keeplocked are
substantially the same as in the general population. Lee v. Coughlin, 26 F.Supp.2d 615, 628 (S.D.N.Y.1998).
While on keeplock confinement an inmate is confined to his or her general population cell for twenty-three
hours a day, with one hour for exercise. Id. Keeplocked inmates can leave their cells for showers, visits,
medical exams and counseling, and can have cell study, books and periodicals, Id. The primary difference
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between keeplock and the general population confinement conditions is that keeplocked inmates do not leave
their cells for out-of-cell programs, and are usually allowed less time out of their cells on the weekends. Id.
8 In New York, SHU cells are utilized for segregating prisoners from general population areas for
various reasons including, predominantly, disciplinary purposes. Lee v. Coughlin, 26 F.Supp.2d 615, 618
(S.D.N.Y.1998) (citing 7 NYCRR pts. 253, 254, and 301). The conditions typically experienced by inmates
confined in an SHU include two showers per week; one hour of outdoor exercise per day; unlimited legal
visits; one non-legal visit per week; access to counselors; access to sick call; cell study programs; and access
to library books. Husbands v. McClellan, 990 F.Supp. 214, 218 (W.D.N.Y.1998) (citing 7 NYCRR pt. 304).
9 The subsequent disciplinary proceedings necessitated by virtue of plaintiff's refusal to provide a DNA sample
are chronicled in a report and recommendation issued in another action brought by plaintiff Amaker. See
Amaker II, Dkt. No. 160, slip op. at pp. 3–4.
10 To some extent there is overlap between plaintiff's property loss claims and his contention that through
confiscation or destruction of documents and other materials related to his ongoing litigation, he has been
deprived of access to the courts. The property loss at issue in connection with this claim could also potentially
serve as adverse action alleged by the plaintiff in connection with his retaliation claim. Both of these claims
are addressed elsewhere in this report. See pp. 21–26, and 42–48, post.
11 In a broader sense, this portion of defendants' motion implicates the sovereign immunity enjoyed by the
State. As the Supreme Court has reaffirmed relatively recently, the sovereign immunity enjoyed by the states
is deeply rooted, having been recognized in this country even prior to ratification of the Constitution, and is
neither dependent upon nor defined by the Eleventh Amendment. Northern Ins. Co. of New York v. Chatham
County, 547 U.S. 189, 193, 126 S.Ct. 1689, 1693 (2006).
12 By contrast, the Eleventh Amendment does not establish a barrier against suits seeking to impose individual
or personal liability on state officials under section 1983. See Hafer, 502 U.S. at 30–31, 112 S.Ct. at 364–65.
13 Among the court access arguments asserted by plaintiff is the claim that on one occasion on September 10,
1998 plaintiff gave legal mail of an unspecified nature to Corrections Officer R. Lincoln, who never delivered
it. Amended Complaint (Dkt. No. 78) ¶ 7. Since neither plaintiff's complaint nor the record now before the
court discloses, however, that plaintiff suffered any prejudice as a result of that failure, this claim lacks merit.
See Govan v. Campbell, 289 F.Supp.2d 289, 297–98 (N.D.N.Y.2003) (Sharpe, M.J .). Moreover, to the extent
that the failure to promptly deliver that mail might be proven to have legal consequences, it is noted that that
significance is substantially ameliorated by the prison mailbox rule which provides, in essence, that court
papers are deemed filed when delivered by a prison inmate to corrections officials. See Houston v. Lack, 487
U.S. 266, 270–72, 108 S.Ct. 2379, 2382–83 (1988); Mingues v. Nelson, No. 96 CV 5396, 2004 WL 324898,
at *3 (S.D.N.Y. Feb. 20, 2004).
14 As defendants note, many of plaintiff's allegations regarding library access denial fail to identify any particular
defendant to whom the denial can be fairly attributed. Since personal involvement in a constitutional
deprivation is an essential requirement of a civil rights claim under 42 U.S.C. § 1983, Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir.1995), this failure thus provides an additional, independent basis for dismissal of at
least portions of plaintiff's court access claims.
15 In light of this finding I also recommend against referral of this matter to the United States Attorney, a matter
which, while within the court's inherent authority in the event of a perceived criminal violation, see, e.g., ACLI
Govn't Sec., Inc. v. Rhoades, 989 F.Supp. 462, 467 (S.D.N.Y.1997), does not appear to be warranted. This
determination, of course, does not preclude the plaintiff from filing a complaint with the United States Attorney
or other appropriate federal authorities.
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16 From a comparison of plaintiff's medical indifference claims in this case with those rejected in Amaker II, it
appears that there is considerable overlap.
17 Plaintiff's medical indifference claims carry forward to his time at Upstate, following a transfer into that facility
on October 31, 2001. In his complaint, as amended, plaintiff asserts that during the course of that transfer he
was “made to walk in waist chain hurting his herniated discs in his lower back causing his legs to go numbed
[sic] [and that he] never was send [sic] to a medical doctor ....“ Amended Complaint (Dkt. No. 78) ¶¶ 21,
24. This claim is contradicted by plaintiff's medical records, however, which reveal that upon his arrival at
Upstate he was medically examined, screened and orientated, with no indication of any complaints of pain or
numbness at that time; in fact, according to his medical records, plaintiff denied having any injury or current
medical complaint when questioned during that process. See Mans Aff. (Dkt. No. 229–14) Exh. A, 10/31/08
Entrance Exam Form, Screening and Physical Assessment Form, Inmate Orientation Form, and Incoming
Draft Form. Despite plaintiff's further claim that he was not seen by medical officials at Upstate, the records
once again reveal otherwise, reflecting that prior to the time of his transfer out of that facility on April 22,
2002, he was seen by medical personnel at Upstate more than forty times, with various complaints being
registered by him along the way.
18 According to his health records, plaintiff was seen at Clinton by Nurse Rizoff on June 16, 1998, claiming that
his eyeglasses were broken and requesting an eye examination and new glasses. See Mans Aff. (Dkt. No.
229–14) Exh. A, 6/16/98. Nurse Rizoff inquired as to how the glasses were broken, and advised the plaintiff
that pursuant to the DOCS health services policy regarding vision care services he might be held accountable
for the cost of any replacement that occurred within two years of his last eye examination and the issuance
of glasses. See id., Interdepartmental Communications from Dr. Lee to Plaintiff Regarding DOCS Policy for
Eyeglasses, dated February 26, 1999. Plaintiff's records reveal that his eyes were subsequently examined
on July 8, 1998, at which time he received a pair of glasses, and that he was retested on April 26, 1999
after complaining of eye pain. See Id., 7/9/98 and 4/26/99 Entries. While there is considerable question as
to whether plaintiff's eye condition constitutes a serious medical need for purposes of the Eight Amendment,
particularly in view of the lack of allegations that his condition degenerated or he experienced severe pain
as a result of the delay in providing him with an eye examination and glasses, see Koehl v. Dalsheim, 85
F.3d 86, 88 (2d Cir.1996); Abdush–Shahid v. Coughlin, 933 F.Supp. 168, 181 (N.D.N.Y.1996) (Koeltl, J.), it
is clear that the defendants were not, as alleged, indifferent to his vision impairment.
19 It is well-established that as a prison inmate plaintiff has no Fourth Amendment right to privacy which would
preclude a search of his cell, accomplished for legitimate reasons. Hudson v. Palmer, 468 U.S. 517, 525–26,
104 S.Ct. 3194, 3200 (1984). A cell search motivated out of retaliatory animus, however, could be found to
support a claim of unlawful retaliation provided that all of the prerequisites for establishing a First Amendment
claim were met. See H'Shaka v. Drown, No. 9:03–CV–937, 2007 WL 1017275, at *12 (N.D.N.y. Mar. 30,
2007) (Kahn, D.J. and Treece, M.J.).
20 Based upon this finding I have opted not to address the defendants' additional arguments of lack of personal
involvement and entitlement to qualified immunity. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001).
Similarly, I have chosen not to address the motion filed on behalf of defendant R. Rivera seeking dismissal
for failure to state a cause of action in light of my recommendation regarding defendants' summary judgment
motion.
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1995 WL 548714
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
John BAILEY, etc., Plaintiff,
v.
Detective Philip TRICOLLA et alia, Defendants.
No. CV–94–4597 (CPS).
|
Sept. 12, 1995.
MEMORANDUM AND ORDER
SIFTON, Chief Judge.
*1 This is a civil rights action brought pro se by
plaintiff John Bailey on behalf of himself and his minor
daughter Natasha Bailey. The defendants are New York City
Police Detective Philip Tricolla, Detective Douglas Hopkins,
Detective Ortiz, Detective A. Semioli and an unnamed
employee of Channel 9 News, “John Doe.” Interpreting
plaintiffs' complaint liberally, as required by Haines v. Kerner,
404 U.S. 519 (1972), several federal and state claims are
stated. Plaintiffs assert claims under 42 U.S.C. § 1983 based
on the Fourth, Eighth and Fourteenth Amendments. The
following federal claims are asserted by John Bailey on
his own behalf: (1) that his Fourth Amendment right was
violated when his property was illegally searched and seized
by Detectives Tricolla, Semioli, and others, (2) that his Eighth
Amendment right was violated when the detectives failed
to stop an attack on plaintiff while in their custody, and (3)
that his 14th Amendment right to due process was violated
when the detectives filed false police reports and perjured
themselves testifying at his trial. The following state claims
are also asserted: (1) that an unidentified man who reportedly
worked for Channel 9 News battered plaintiff John Bailey
while he was in the custody of Detectives Tricolla and
Hopkins, (2) that the detectives engaged in abuse of process
when they filed false police reports concerning plaintiff's
conduct, and (3) on behalf of Natasha Bailey, plaintiff John
Bailey asserts that Detective Ortiz took her from her mother
and used excessive force to do so.
On February 10, 1995, plaintiff moved for leave to amend the
complaint to name “Channel 9 Broadcasting Systems, any and
all Affiliates and or Sponsor's and Newscasters, and anyone
and everyone responsible for the broadcasting of the Channel
9 news story shown on the Channel 9 news on or about June
7, 1991, in which the plaintiff was assaulted both physically
then verbally with false slanderous stat[e]ments that implied
plaintiff's guilt.”
There are two motions to dismiss before the Court. In the first,
defendant Detectives Tricolla, Hopkins, Ortiz, and Semioli
move to dismiss the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure on the grounds that the
complaint is barred by the statute of limitations and that the
defendants are immune from suit. In the second, defendant
“John Doe,” a Channel 9 News Reporter, moves to dismiss
the complaint on two grounds. First, pursuant to Rule 12(b)
(1), defendant Doe argues that this Court lacks subject matter
jurisdiction over him because, as a news reporter, “John
Doe” is not a “person” within the meaning of 42 U.S.C. §
1983. Second, pursuant to Rule 12(b)(6), Doe asserts that the
complaint is barred by the statute of limitations.
On March 29, 1995, this Court received a sworn affidavit and
supplementary exhibits from plaintiff John Bailey seeking
to establish that his complaint was filed within the statute
of limitations. Defendants have not had responded to this
material. For the reasons set forth below, defendants' motions
to dismiss certain claims based on absolute immunity are
granted in part and denied in part. The city defendants'
motion to dismiss the remaining claims statute of limitations
grounds is denied. Defendant Doe's motion to dismiss the
complaint as to himself is granted. Plaintiff's motion to
amend the complaint as set forth in their motion is denied.
Plaintiffs' motion for the appointment of counsel for the
plaintiff Natasha Bailey is granted, and this action is stayed
pending the appointment of counsel and guardian ad litem for
the minor plaintiff.
BACKGROUND
*2 The following facts are taken from the plaintiff's
complaint and, for the purposes of this motion, are presumed
to be true and are regarded in a light most favorable to the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). Plaintiffs'
complaint alleges constitutional injury arising from several
incidents. On June 6, 1991, plaintiff John Bailey was arrested
by Detective Tricolla and “a great many other Detectives.” At
the time of the arrest, detectives searched and seized plaintiff's
property including a bill of sale for a .25 caliber automatic,
firearms, ammunition, a gun registration, a firearms lock
box, several keys, two wallets, and other items. Detective
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Semioli is specifically accused of stealing plaintiff's transit
badge and buspass I.D. On the day of plaintiff's arrest, June
6, 1991, Detective Ortiz questioned Natasha Bailey, plaintiff
John Bailey's daughter, and took her away from her mother
by force. On June 7, 1991, between 2 and 5 a.m. plaintiff
was being escorted in handcuffs by Detectives Tricolla and
Hopkins through the main lobby of the 71st police precinct
when plaintiff was hit by defendant “John Doe,” a man he
later learned was employed by Channel 9 News. Detectives
also are accused of filing false police reports concerning
John Bailey and Natasha Bailey and are accused of perjuring
themselves when testifying at plaintiff's trial.
In the motion to amend the complaint, plaintiff alleges that
these events were broadcast on Channel 9 News on or about
June 7, 1991.
DISCUSSION
Subject Matter Jurisdiction
Defendant Doe has argued that this court lacks subject
matter jurisdiction. 1 Plaintiffs filed their suit under 42 U.S.C.
§ 1983. Defendant Channel 9 news reporter “John Doe”
contends that he is not a “person” within the meaning of
§ 1983, and that this Court therefore lacks subject matter
jurisdiction over him. Defendant cites no case law to support
this proposition but relies solely on the plain meaning of the
statute. 2 This Court has also found nothing that would lend
defendant's position support.
In one § 1983 case involving a journalist, Fitzpatrick v.
Wert, 432 F.Supp. 601 (W.D.N.Y.1977), inmates sued news
reporters who reported and commented on a statement made
by the president of a prison guards' union. Plaintiffs alleged
that defendant news reporters were involved in a conspiracy
to deprive plaintiffs of equal protection under the law. Id.
at 603. The suit was dismissed as frivolous. The reporters
were held not liable under § 1983 because they were
engaged in exercising their constitutionally protected rights.
Id. However, neither in Fitzpatrick nor anywhere else in the
extant case law has a court held that journalists were or were
not “persons” within the meaning of the statute. The proper
issue before the Court is whether defendant “John Doe” was
acting “under color of any statute, ordinance, regulation,
custom, or usage, of any State....” 42 U.S.C. § 1983. This is
an issue more appropriately dealt with as a 12(b)(6) motion
to dismiss, since acting under color of state law is an element
of pleading a § 1983 cause of action. Gomez v. Toledo, 446
U.S. 635, 640 (1980). Moreover, when a district court has
both a 12(b)(1) and 12(b)(6) motion before it, the “preferable
approach, if the 12(b)(1) motion essentially challenges the
existence of a federal cause of action, is for the court to find
jurisdiction and then decide the 12(b)(6) motion.” Jones v.
State of Georgia, 725 F.2d 622 (11th Cir.) (citing Williamson
v. Tucker, 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897
(1981)), cert. denied, 469 U.S. 979 (1984). Accordingly, this
Court has subject matter jurisdiction over this defendant.
*3 As to defendants Detective Philip Tricolla, Detective
Douglas, Detective Hopkins, Detective Ortiz, and Detective
A. Semioli, this Court has subject matter jurisdiction over
the case pursuant to 28 U.S.C. § 1343(a)(3) and (4) 3
which specifically provides jurisdiction over § 1983 actions.
Jurisdiction is also proper pursuant to 28 U.S.C. § 1331 which
provides district courts with jurisdiction over all civil actions
arising under the Constitution, laws, or treaties of the United
States.
City Defendants' Statute of Limitations Defense
Defendants argue that the statute of limitations bars all of
plaintiffs' claims except the allegation that detectives perjured
themselves at the plaintiff's trial. There are three elements
needed to determine whether a claim falls within the statute
of limitations: (1) when the period of limitations accrued, (2)
how long the period runs for, and (3) whether the period has
been tolled by reason of incapacity. Federal law determines
when an action accrues. Morse v. University of Vt., 973 F.2d
122, 125 (2d Cir.1992); Singleton v. City of New York, 632
F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920
(1981).
The statutory period for bringing a § 1983 action accrues on
the day when plaintiff “ ‘knows or has reason to know’ of
the injury which is the basis of his action.” Pauk v. Board
of Trustees, 654 F.2d 856, 859 (2d Cir.) (quoting Singleton ),
cert. denied, 455 U.S. 1000 (1982). Furthermore, the “proper
focus is on the time of the discriminatory act, not the point at
which the consequences of the act become painful.” Chardon
v. Fernandez, 454 U.S. 6, 8 (1991). Plaintiff's claims accrued
on different dates. Plaintiff's property was searched and seized
on June 6, 1991, at the time of his arrest, and on June 7,
1991, plaintiff was allegedly assaulted by defendant “John
Doe” while in the custody of defendant Detectives Tricolla
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and Hopkins. Plaintiff clearly had immediate knowledge of
both of these events, and thus any cause of action arising
therefrom accrued at that time.
Congress provided no explicit statute of limitations for § 1983
claims. As a result, there was much confusion as to which
state limitations statute to apply until the Supreme Court,
in Wilson v. Garcia, 471 U.S. 261 (1985), decided that the
states' general personal injury statute of limitations should be
applied to all § 1983 claims. Id. at 276. When a state has more
that one personal injury statute of limitations, as is the case in
New York, § 1983 claims are governed by the state's residual
or general personal injury statute of limitations rather that by
the statute of limitations for an enumerated intentional tort.
Owens v. Okure, 488 U.S. 235 (1989). Under New York CPLR
§ 214, the general personal injury statute of limitations is three
years. Therefore, in New York, a plaintiff must commence his
§ 1983 action within three years of the date the cause of action
accrues. See Perez v. Police Dept. of the City of New York, 872
F.Supp. 49, 51 (S.D.N.Y.1994).
*4 Plaintiff John Bailey signed and notarized his complaint
on May 16, 1994. However, the complaint was date-stamped
“received” on July 11, 1994, by the Southern District pro
se office and stamped as filed with the Southern District of
New York on September 13, 1994. In a supplemental affidavit
filed on March 29, 1995, plaintiff attests that he prepared and
mailed the complaint to the Southern District for filing on
May 17, 1994, and requested a return receipt. Plaintiff has
annexed to his affidavit a copy of his certified mail receipt,
addressed to the U.S. District Court at 40 Centre St., New
York, N.Y. and showing a post office stamp of May 17, and a
copy of the returned receipt, signed and dated May 26, 1994.
Rule 3 of the Federal Rules of Civil Procedure determines
when a civil rights action commences. It simply states “[a]
civil action is commenced by filing a complaint with the
court.” Fed.R.Civ.P. 3. Incarcerated litigants are afforded
more leeway when they file pleadings because of their
inability to file papers personally with the clerk of the court.
Thus, for example, litigants may file a complaint by handing
it to prison authorities, Dory v. Ryan, 999 F.2d 679, 682 (2d
Cir.1993) (discussing Houston v. Lack, 487 U.S. 266 (1988)),
modified by 25 F.3d 81 (2d Cir.1994); Lewis v. Richmond City
Police Dept., 947 F.2d 733, 734 (4th Cir.1991), or may file an
appeal in the same manner. LaBounty v. Adler, 933 F.2d 121
(2d Cir.1991).
At least one court has held that a return receipt dated within
the limitations period suffices to prove receipt by the clerk
and therefore filing, even if the clerk's office stamps the
pleading “received” or “filed” on later dates. Cooper v. City
of Ashland, 871 F.2d 104, 105 (9th Cir.1989). Generally, file
stamps are far from dispositive of a statute of limitations issue.
In Mays v. New York City Police Dept, 701 F.Supp. 80, 83 n.
6 (S.D.N.Y.1988), aff'd, 888 F.2d 1376 (2d Cir.1989), it was
held that “[w]hen a pro se plaintiff's complaint is received
by the Court within the statutory period, as here, and official
filing is delayed by the Court's consideration of plaintiff's
request for leave to proceed in forma pauperis, the action will
be deemed timely for purposes of the statute of limitations.”
See also Salahuddin v. Harris, 657 F.Supp. 369, 373 n. 3
(S.D.N.Y.1987). The key inquiry is whether the clerk's office
had actual control; papers placed in a night depository box
after hours on the last day of the limitations period are deemed
timely notwithstanding a local rule that such papers would
be deemed filed the following day, because the papers placed
in the box were held to be in the clerk's “actual possession.”
Greenwood v. State of N.Y., Office of Mental Health, 842 F.2d
636, 639 (2d Cir.1988); see also Martin v. Demma, 831 F.2d
69, 71 (5th Cir.1987) (district court's acceptance of date on
clerk's stamps as dispositive was error). Plaintiff's production
of the post office return receipt showing that his complaint
was received at the Southern District clerk's office within the
limitations period meets his burden of producing evidence to
show that his papers were timely filed sufficient to warrant
denial of the motion to dismiss at this time. The denial of this
motion is without prejudice if discovery uncovers additional
evidence relating to this matter.
Alleged False Police Reports and Perjured Testimony
*5 Plaintiff also claims that defendant detectives filed false
police reports and lied while testifying at his trial. Even
if timely filed, these claims cannot withstand a motion to
dismiss.
Generally, police officers have available a defense of only
qualified immunity. Pierson v. Ray, 386 U.S. 547 (1967).
However, defendant detectives are correct that officers
serving as witnesses have absolute immunity from civil
liability for their testimony. Briscoe v. LaHue, 460 U.S.
325 (1983). As the Supreme Court held in Briscoe, “the
common law provided absolute immunity from subsequent
damages liability for all persons—governmental or otherwise
—who were integral parts of the judicial process.” Id. at 335.
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Section 1983 does not abrogate this traditional immunity.
Examining the legislative history of the Ku Klux Klan Act
of 1871, 17 Stat. 13 (now codified at 42 U.S.C. §§ 1983
and 1985, inter alia ), the Supreme Court found nothing
to “support petitioners' contention that Congress intended to
provide a § 1 damages remedy against police officers or any
other witnesses.” Id. at 341. The Court specifically noted
that, although “some defendants might indeed be unjustly
convicted on the basis of knowingly false testimony by police
officers ... the alternative of limiting the official's immunity
would disserve the broader public interest.” Id. at 345. In light
of Briscoe, defendant detectives are absolutely immune from
this § 1983 action with respect to their testimony at plaintiff's
trial.
Plaintiff's allegations that the police officers filed false police
reports against him also fails to state a claim. “[T]he mere
filing of the false police reports, by themselves and without
more, [does] not create a right of action in damages under
42 U.S.C. § 1983.” Landrigan v. City of Warwick, 628 F.2d
736, 744–45 (1st Cir.1980). Plaintiff's claims could be cast
as a cause of action for malicious prosecution. Allegations of
malicious prosecution do not ordinarily state a claim under
§ 1983. Easterhouse v. Felder, 910 F.2d 1387, 1407 (7th
Cir.1990), cert. denied, 498 U.S. 1067 (1991); Gunderson
v. Schueter, 904 F.2d 407, 409 (8th Cir.1990); Usher v.
City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). The
filing of false police reports may bring a claim for malicious
prosecution within the scope of § 1983. Usher v. City of
Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However,
an essential element of such a claim is that the proceeding
must terminate in plaintiff's favor, and plaintiff has not alleged
this key fact. Bernard v. United States, 25 F.3d 98, 104 (2d
Cir.1994). If plaintiff were convicted but believes that he
was wrongly convicted, his proper remedy is not a claim
for damages but rather an appeal, a collateral attack in state
court, or a habeas petition in federal court. Plaintiffs thus have
no cognizable § 1983 claim for the alleged filing of false
reports. 4
*6 Since the only other argument advanced by the city
defendants is the statute of limitations and since that argument
fails as noted above, their motion to dismiss the complaint is
granted only with respect to the alleged false reports and false
testimony and is denied in all other respects.
Claims Against Defendant “John Doe”
The “under color” of law provision of § 1983 does not
require that the defendant be an officer of the State. Dennis
v. Sparks, 449 U.S. 24 (1980). However, for the conduct of
a private party to fall within the “under color” language, that
conduct must be supported by state action, usually in the
form of a conspiracy. Adickes v. S.H. Kress & Co., 398 U.S.
144, 163 (1970) (defendant restaurant owner who refused to
serve Caucasian woman in the company of African American
students was acting under color of law within the meaning of
§ 1983 because of his participation in a conspiracy with local
police to deprive plaintiff of her rights). State support which
transforms private action into state action may take many
forms. In plaintiff's case, the only support given to “John
Doe” was the inaction of the detectives who witnessed the
battery. This level of support, if it can be called support at all,
cannot qualify as state action because the complaint fails to
allege that the attack was the result of a joint venture with the
detectives. See United States v. Price, 383 U.S. 787 (1966).
In Price, private actors charged with conspiring with local
police to injure three men came within the scope of the statute
because the private persons acted as willful participants in a
joint activity with the state or its agents. Id. at 794. The Second
Circuit has repeatedly held that § 1983 conspiracy claims
must “contain more than mere conclusory allegations ... [and
that] a plaintiff should not plead mere evidence; he should
make an effort to provide some ‘details of time and place and
the alleged effect of the conspiracy.’ ” Dwares v. City of New
York, 985 F.2d 94, 99–100 (2d Cir.1993) (quoting 2A Moore's
Federal Practice ¶ 8.17[6], at 8–109 to 8–110 (2d ed. 1992)).
Even though pro se complaints are read very broadly under
Haines, the Court is nevertheless limited to addressing the
face of a pleading. Goldman v. Belden, 754 F.2d 1059
(2d Cir.1985). A claim of conspiracy between defendant
detectives and defendant Channel 9 news reporter cannot be
inferred from the facts presented in the complaint, and the
complaint is dismissed as to this John Doe defendant.
Plaintiff's state law claims against defendant Doe are also
dismissed Under any reading of the complaint, these claims
can only be for assault, libel, or some other intentional tort.
The state law claims are subject to New York's one-year
statute of limitations for intentional torts, CPLR § 215, rather
than the three-year period for negligence actions or § 1983
claims. This period has clearly expired as to all claims against
Doe. Accordingly, the complaint is dismissed as to defendant
Doe.
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*7 For similar reasons, plaintiff's motion to amend the
complaint is also denied. The amendment seeks to name
Channel 9 Broadcasting Systems and others as defendants
in a slander or libel action. These actions are also subject
to the one-year statute of limitations. Since the proposed
amendment would be futile, plaintiff's motion is denied.
Natasha Bailey
Natasha Bailey is represented by her father, plaintiff John
Bailey. Under the Federal Rules of Civil Procedure, capacity
to sue is determined by the law of the state in which the district
court is held. Fed.R.Civ.P. 17(b). Rule 17(b) reads in relevant
part: “The capacity of an individual, other than one acting in a
representative capacity, to sue or be sued shall be determined
by the law of the individual's domicile ... [i]n all other cases
capacity to sue or be sued shall be determined by the law of the
state in which the district court is held....” Wright and Miller
comment on this rule, noting that state law determines the
capacity of the guardian as well as the plaintiff: “[a]s has been
seen in the preceding sections, the first two sentences of Rule
17(b) deal with an individual suing on his own behalf and with
the capacity of corporations. The third sentence of the rule
provides that in all other cases capacity to sue or be sued is
to be determined by the law of the state in which the district
court is held. This portion of the rule applies principally
to individuals who are suing in a representative capacity,
including executors and administrators, guardians, trustees,
and receivers appointed by a state court.” Wright & Miller,
Federal Practice and Procedure: Civil § 1565. Under New
York law, an infant 5 cannot prosecute an action in person.
The Federal Rules of Civil Procedure allow a representative
to sue on behalf of an infant. Fed.R.Civ.P. 17(c). However
under New York law the infant must appear by a parent who
has “legal custody” 6 or guardian ad litem. “Unless the court
appoints a guardian ad litem, an infant shall appear by the
guardian of his property or, if there is no such guardian,
by a parent having legal custody, or, if there is no such
parent by another person or agency having legal custody....”
N.Y.Civ.Prac.L. & R. 1201 (McKinney 1995). To have legal
custody, a parent must have physical custody. Otero on Behalf
of Otero v. State, 159 Misc.2d 35, 602 N.Y.S.2d 501, 502
(1993). An incarcerated parent cannot have legal custody
and therefore may not bring suit on behalf of an infant. Id.
at 502. Since plaintiff John Bailey is currently incarcerated
at Franklin Correctional Facility in Malone, N.Y., he is not
competent to bring this action on his daughter's behalf. 7
For the foregoing reasons defendant Channel 9 news reporter
“John Doe's” motion to dismiss is granted. Plaintiffs' claims
against the defendant detectives arising out of their testimony
at his trial or from the alleged filing of false police reports are
also dismissed. Plaintiff's motion to amend the complaint is
denied. The claims on behalf of Natasha Bailey are dismissed
without prejudice. Plaintiff's applications for appointment
of pro bono counsel are denied subject to renewal upon a
showing sufficient to permit the determination required by
Cooper v. S. Sargenti Co., Inc., 877 F.2d 170 (2d Cir.1989),
concerning the merits of the case.
*8 The Clerk is directed to mail a copy of the within to all
parties.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 548714
Footnotes
1 Though “John Doe” is not specifically identified in the complaint, process was served on Channel 9 at their
offices at 445 Park Avenue, New York City, and was accepted by a person named Brenda Woodman. This
Court has received a motion and supporting affidavit filed by attorneys for WWOR (Channel 9) on behalf of
“John Doe.” The affidavit states that “Defendant ‘John Doe,’ Channel 9 News Reporter, respectfully requests
that this court dismiss plaintiff's Complaint.” The defendant has not raised objections to either service or
personal jurisdiction but, instead, to subject matter and to the merits of the case. By filing this motion, then,
he has consented to personal jurisdiction.
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Bailey v. Tricolla, Not Reported in F.Supp. (1995)
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2 The statute reads in pertinent part: “Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, or the District of Columbia subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceedings for redress.” 42 U.S.C. § 1983 (1988).
3 “(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced
by any person: ...
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom
or usage, of any right, privilege or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of
the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for
the protection of civil rights, including the right to vote.”
4 The Court declines to consider the instant complaint as a habeas petition under 18 U.S.C. § 2254, because
it is impossible to determine whether the claims were properly exhausted. If Bailey intends to seek habeas
relief, he should file an appropriate petition.
5 An infant is defined as a “person who has not attained the age of eighteen years.” N.Y.Civ.Prac.L. & R. 105
(McKinney 1994).
6 See Villafane v. Banner, 87 Misc.2d 1037, 387 N.Y.S.2d 183 (1976).
7 Generally, no statute of limitations will run against an infant until he or she attains the age of 18, the age of
majority in New York. Section 208 of the NYCPLR in pertinent part reads, “If a person entitled to commence
an action is under a disability because of infancy or insanity at the time the cause of action accrues, and
the time otherwise limited for commencing the action is three years or more and expires no later than three
years after the disability ceases, or the person under disability dies, the time within which the action must
be commenced shall be extended to three years after the disability ceases or the person under the disability
dies....” However, in an action for personal injuries sustained by the infant, the statute of limitations does not
bar the adult representative from bringing suit on behalf of the infant. Hilburger v. Cottman, 196 Misc. 106, 91
N.Y.S.2d 721 (1949) (“to compel an infant ... to await h[er] majority before bringing an action because [s]he
had failed to act within the generally prescribed statutory period would create an anomalous situation ... an
infant's right of action is continuing and suit may be brought at any time during his minority.”). Here, since John
Bailey cannot legally represent Natasha because of his incarceration, another representative is required.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 73 of 240

Beaman v. New York, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 189446
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Lorenzo BEAMAN, Plaintiff,
v.
State of NEW YORK, et al., Defendants.
9:25-CV-1402 (ECC/MJK)
|
Signed January 22, 2026
Attorneys and Law Firms
Lorenzo Beaman, Brooklyn, NY, Pro Se.
DECISION and ORDER
Elizabeth C. Coombe, United States District Judge
I. INTRODUCTION
*1 Plaintiff Lorenzo Beaman commenced this action by
filing a pro se civil rights complaint pursuant to 42 U.S.C. §
1983 (“Section 1983”), and paying the required filing fee in
full. Dkt. No. 1 (“Compl.”). 1 By Decision and Order entered
on October 31, 2025, the Court reviewed the complaint
in accordance with 28 U.S.C. § 1915A(b) and dismissed
plaintiff's Section 1983 claims without prejudice as barred
by the Eleventh Amendment, and for failure to state a claim
upon which relief may be granted. Dkt. No. 5 (“October 2025
Order”). In light of plaintiff's pro se status, he was afforded
an opportunity to submit an amended complaint. Id. at 12-14.
Presently before the Court is plaintiff's amended complaint
and supplemental supporting documents. Dkt. No. 6 (“Am.
Compl.”); Dkt. No. 7 (“Supplemental Submission”).
II. SUFFICIENCY OF THE AMENDED COMPLAINT
A. The Complaint and October 2025 Order
In his complaint, plaintiff asserted claims against the State
of New York and Greene Correctional Facility based on
allegations that he was assaulted by a fellow inmate while
incarcerated at Greene Correctional Facility on December 21,
2017. See Compl. at 3-4
The complaint was construed to assert Eighth Amendment
failure-to-protect claims against the named defendants. See
October 2025 Order at 4.
After reviewing the allegations in the complaint for
sufficiency, the Court dismissed plaintiff's Section 1983
claims as barred by the Eleventh Amendment, and untimely.
See October 2025 Order at 5-14.
B. Review of the Amended Complaint
The Court previously relied on 28 U.S.C. § 1915A(b) for
its screening of the complaint because the pleading asserts
allegations of wrongdoing that occurred during plaintiff's
incarceration. See Compl. at 2-6; Dkt. No. 1-1 at 35-40. 2
The Court, however, also has the inherent authority to ensure
that plaintiff has standing to pursue his claims, that subject
matter jurisdiction exists, and that a case is not frivolous. See
Rolle v. Berkowitz, No. 03-CV-7120, 2004 WL 287678, at
*1 (S.D.N.Y. Feb. 11, 2004) (“[C]ourts within the Second
Circuit have not hesitated to dismiss sua sponte claims
brought by fee-paying pro se plaintiffs when it is clear
such claims ‘presen[t] no arguably meritorious issue for [the
courts’] consideration.’ ” (quoting Pillay v. INS, 45 F.3d
14, 17 (2d Cir.1995) (holding appellate court has authority
to sua sponte dismiss a frivolous appeal brought by a fee-
paying pro se plaintiff))); Cummings v. Giuliani, No. 00-
CV-6634, 2000 WL 1597868, at * 2-3 (S.D.N.Y. Oct. 24,
2000) (dismissing sua sponte fee-paying pro-se plaintiff's §§
1981, 1983 and 1985 claims that were clearly time-barred)
(citing Pillay); Cook v. Sullivan Cnty. Fam. Ct. of New York
State Unified Ct. Sys., No. 24-CV-03874, 2024 WL 3106248,
at *2 (S.D.N.Y. June 20, 2024) (same); see also Fitzgerald v.
First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir.
2000) (“[D]istrict courts may dismiss a frivolous complaint
sua sponte even when the plaintiff has paid the required filing
fee.”); Muller v. Costello, No. 94-CV-842, 1996 WL 191977,
at *2 (N.D.N.Y. Apr. 16, 1996) (“Federal courts are under an
independent obligation to examine their own subject matter
jurisdiction.” (citing U.S. v. Hayes, 115 S. Ct. 2431, 2435
(1995)); Atl. Healthcare Benefits Trust v. Googins, 2 F.3d 1,
4 (2d Cir. 1993) (“Although the parties do not address the
Eleventh Amendment in their briefs, we raise it sua sponte
because it affects our subject matter jurisdiction.”); Close v.
New York, 125 F.3d 31, 38-39 (2d Cir. 1997) (“[U]nless New
York waived its immunity, the district court lacked subject
matter jurisdiction.”).
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Beaman v. New York, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
*2 The amended complaint is identical to the original
complaint, with the exception of a caption change. Compare
Compl. with Am. Compl. Indeed, even the signature date
on both pleadings is the same. Moreover, while plaintiff has
filed additional documentation with his amended complaint
related to his state court action and communications with the
state court and his former attorney, see Dkt. Nos. 6-1, 6-2, 7,
none of these filings present a basis for tolling the applicable
limitations period by more than four years, or finding that the
Eleventh Amendment's jurisdictional bar is inapplicable to
plaintiff's Section 1983 claims against the State of New York
and Greene Correctional Facility.
Accordingly, and for the reasons set forth in the October
2025 Order, plaintiff's Section 1983 claims are dismissed as
untimely, and for lack of subject matter jurisdiction. See,
e.g., Collins v. Unified Ct. Sys. of New York, No. 91-CV-349,
1991 WL 111218, at *1 (N.D.N.Y. June 17, 1991) (“The
complaint is frivolous; the court has seen essentially the
same allegations made in the prior two suits; additionally,
much of the complaint is barred by virtue of the applicable
limitations period (three years), or by the 11th Amendment
or by the doctrine of absolute judicial immunity.”), aff'd sub
nom. Collins v. Unified Ct. Sys. NY, 962 F.2d 3 (2d Cir. 1992);
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (action frivolous where “factual contentions
are clearly baseless,” as when “the claim is based on an
indisputably meritless legal theory,” e.g., where “a dispositive
defense clearly exists on the face of the complaint”);
Cummings v. Giuliani, No. 00-CV-6634, 2000 WL 1597868,
at *2-3 (S.D.N.Y. Oct. 24, 2000) (dismissing sua sponte fee-
paying pro se plaintiff's claims that were clearly time-barred);
Islam v. Melisa, No. 18-CV-2535, 2020 WL 1452463, at *12
(E.D.N.Y. Mar. 24, 2020) (“The Court construes Islam as
naming Dr. Melisa Jn. Pierre as a defendant in this action
and dismisses Islam's claims against her as frivolous because
they are clearly time-barred, ... having been brought over four
years after Islam last interacted with Dr. Melisa[.]”); Castro v.
United Sec. Inc., No. 10-CV-6152, 2011 WL 4916402, at *3
(S.D.N.Y. Oct. 17, 2011) (“[C]ourts within the Second Circuit
consistently have held that lack of legal knowledge or legal
assistance is not an extraordinary circumstance warranting
equitable tolling.” (citation omitted)); Pino v. Ryan, 49 F.3d
51, 54 (2d Cir. 1995) (finding sua sponte dismissal of
section 1983 claim based on statute of limitations “especially
appropriate where ... the injuries complained of [by the pro
se plaintiff] occurred more than five years before the filing of
the Complaint”).
III. CONCLUSION
WHEREFORE, it is hereby
ORDERED that this action alleging federal claims under
Section 1983 is DISMISSED with prejudice. The Clerk is
directed to terminate the defendants and close this case; and
it is further
ORDERED that the Clerk serve a copy of this Decision and
Order on plaintiff.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 189446
Footnotes
1 Plaintiff commenced this action in the Southern District of New York. By Order entered on September
30, 2025, the Honorable Edgardo Ramos of the Southern District of New York directed that this case be
transferred to the Northern District of New York. Dkt. No. 3. Thereafter, this case was transferred to this
District. Dkt. No. 4.
2 Plaintiff was not incarcerated when he commenced this action.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Brown v. Peters, Not Reported in F.Supp. (1997)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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Brown v. Peters, Not Reported in F.Supp. (1997)
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forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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Brown v. Peters, Not Reported in F.Supp. (1997)
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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Brown v. Peters, Not Reported in F.Supp. (1997)
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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Brown v. Peters, Not Reported in F.Supp. (1997)
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints 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.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 81 of 240

Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2007 WL 607341
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Paul CIPRIANI, Plaintiff,
v.
Harry C. BUFFARDI, Sheriff; Schenectady County Jail;
Cheryl Clark, M.D.; Kevin J. O'Connor, Defendants.
No. 9:06-CV-0889(LEK/DRH).
|
Feb. 20, 2007.
Attorneys and Law Firms
Paul Cipriani, Plaintiff, pro se.
DECISION and ORDER
LAWRENCE E. KAHN, U.S. District Judge.
*1 Presently before the Court is an amended complaint
filed by Plaintiff Paul Cipriani (“Plaintiff”). Amended Compl.
(Dkt. No. 10). This amended complaint was submitted
in compliance with the Memorandum-Decision and Order
issued by this Court on November 27, 2006 (“November
Order”). Mem.-Decision and Order (Dkt. No. 7).
In its November Order, the Court advised plaintiff that he
must set forth facts demonstrating that Defendants were
personally involved in a violation of Plaintiff's rights. Id. at 4.
Plaintiff was also advised that in order to establish the liability
of a municipality, he must allege a custom or policy which is
the moving force behind the violation. Id.
In his amended complaint, Plaintiff names thirteen defendants
and asserts numerous claims against them arising from his
confinement at Schenectady County Jail. Amended Compl.
(Dkt. No. 10).
The Court notes that plaintiff has not named “Schenectady
County Jail,” “Cheryl Clark,” or “Kevin J. O'Connor” in
his amended Complaint. Therefore, “Schenectady County
Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are hereby
dismissed as defendants in this action.
The Court also notes that Plaintiff's amended Complaint
mentions “Mr. Booth” and “Mr. Purdy” only in the caption,
and fails to allege any act or omission by these individuals.
Dismissal is appropriate where a defendant is listed in the
caption, but the body of the complaint fails to indicate what
the defendant did to the plaintiff. Gonzalez v. City of New
York, No. 97 CIV. 2246(MGC), 1998 WL 382055, at *2
(S.D.N.Y. July 9, 1998) (citing Crown v. Wagenstein, No. 96
CIV. 3895(MGC), 1998 WL 118169, at *1 (S.D.N.Y.Mar.16,
1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement) and Taylor v. City
of New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997)). Because
plaintiff has failed to allege any personal involvement on the
part of defendants “Mr. Booth” and “Mr. Purdy”, they are
hereby dismissed as defendants in this action.
In his amended Complaint, Plaintiff alleges that the remaining
Defendants committed various violations of his constitutional
rights, including inadequate medical care, breach of doctor-
patient confidentiality, excessive force, denial of due process
in a disciplinary proceeding, and interference with the
grievance process. Amended Compl. (Dkt. No. 10).
Based on the foregoing, Plaintiff's amended complaint as
against the remaining Defendants is accepted for filing.
Plaintiff is advised, however, that the U.S. Marshals cannot
effect service on a “John Doe” defendant. In the event
that plaintiff wishes to pursue this claim against the “John
Doe” defendants named in the amended Complaint, he must
take reasonable steps to ascertain their identities. Plaintiff
may then file a Motion to amend his complaint and seek
leave of the Court to add such individuals, by name, as
defendants to this lawsuit. Plaintiff is further advised that if
these individuals are not timely served, the action will be
against them will be dismissed.
*2 WHEREFORE, it is hereby
ORDERED, that “Mr. Booth,” “Mr. Purdy,” “Schenectady
County Jail,” “Cheryl Clark,” and “Kevin J. O'Connor” are
DISMISSED as defendants in this action, and it is further
ORDERED, that the Clerk revise the docket to add
“Schenectady County,” “Mr. Burns,” “Mr. Jones,” “Mr.
Adams,” “Ms. Jones,” “Ms. Hull,” “John Doe # 1,” “John Doe
# 7,” “John Doe # 10,” and “Loraine Walker” as defendants
in this action, and it is further
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Cipriani v. Buffardi, Not Reported in F.Supp.2d (2007)
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ORDERED, that the Clerk issue summonses naming the
remaining defendants and forward them, along with copies of
the amended Complaint (Dkt. No. 10), to the United States
Marshal for service upon the defendants, together with a copy
of this Order. 1 The Clerk shall also forward a copy of the
summons and amended Complaint by mail to the County
Attorney for Schenectady County, together with a copy of this
Order, and it is further
ORDERED, that a formal response to Plaintiff's amended
Complaint be filed by Defendants or their counsel as provided
for in Rule 12 of the Federal Rules of Civil Procedure
subsequent to service of process on Defendants, and it is
further
ORDERED, that Plaintiff take reasonable steps to ascertain
the identities of any other individual(s) that purportedly
violated Plaintiff's civil and/or constitutional rights and, if
appropriate, file a Motion to amend his complaint and add
such individuals, by name, as defendants to this lawsuit, and
it is further
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or the
Clerk must be accompanied by a certificate showing that
a true and correct copy of it was mailed to all opposing
parties or their counsel. Any document received by the Clerk
or the Court which does not include a proper certificate of
service will be returned, without processing. 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 Northern District of New
York in filing motions, which must be returnable before the
assigned Magistrate Judge with proper allowance for notice as
required by the Rules. Plaintiff is also required to promptly
notify the Clerk's Office and all parties or their counsel of
any change in his address; his failure to do so will result
in the dismissal of this action. All motions will be decided
on submitted papers without oral argument unless otherwise
ordered by the Court; and it is further
ORDERED, that the Clerk serve a copy of this Order on
plaintiff by regular mail.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 607341
Footnotes
1 Plaintiff was granted leave to proceed with this action in forma pauperis. Mem.-Decision and Order (Dkt.
No. 7).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 83 of 240

Crown v. Wagenstein, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 118169
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lakim CROWN, Plaintiff,
v.
Warden WAGENSTEIN; Parker T. # 10639 of
Emergency Response Unit, et al., Defendants.
No. 96 CIV. 3895(MGC).
|
March 16, 1998.
Attorneys and Law Firms
Lakim Crown, Brooklyn, for Plaintiff, Pro Se.
Paul A. Crotty, Esq., Corporation Counsel of the City of New
York, Attorney for Defendants Wangenstein and Parker, New
York, By Renee R. Nebens, Esq.
OPINION AND ORDER
CEDARBAUM, J.
*1 This is an action for damages brought by a pro se plaintiff
pursuant to 42 U.S.C. § 1983. Defendant Wangenstein moves,
pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint
for failure to state a claim upon which relief can be granted
against him in either his personal or official capacity. For the
reasons discussed below, defendant's motion is granted.
The complaint alleges that on November 28, 1995, while
plaintiff was incarcerated at New York City's Otis Bantum
Correctional Center (“OBCC”), plaintiff was assaulted by a
number of correction officers. (Compl. at 3–4). As a result,
plaintiff alleges that he sustained injuries to his head, neck,
back, and right leg. (Compl. at 4). In addition to the officers
involved in the assault, plaintiff sues Wangenstein, the warden
of OBCC at the time of the alleged assault.
Discussion
A motion to dismiss for failure to state a claim must be granted
if, when viewed in the light most favorable to the plaintiff
and when all allegations of the complaint are accepted as true,
it appears beyond doubt that the plaintiff can prove no set
of facts in support of the claim which would entitle him to
relief. Bolt Electric, Inc. v. City of New York, 53 F.3d 465,
469 (2d Cir.1995). In addition, a complaint and supporting
papers prepared by a pro se plaintiff must be read liberally and
interpreted to “raise the strongest arguments they suggest.”
Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995).
When an individual defendant is sued under § 1983, that
defendant's personal involvement in the alleged constitutional
deprivation is a prerequisite to an award of damages. See
Wright v.. Smith, 21 F.3d 496, 501 (2d Cir.1994). For a
claim under § 1983, a complaint sufficiently alleges personal
involvement of a supervisory official if it alleges one of the
following: (a) direct participation in the alleged wrong; (b)
failure to remedy a violation after receiving notice of it; (c)
creation of a policy or custom under which unconstitutional
practices occur; or (d) grossly negligent management of
subordinates who cause the constitutional violation. See Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996).
A § 1983 claim against a municipal official in his official
capacity is treated as a claim against the municipality itself.
Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873,
83 L.Ed.2d 878 (1985). Section 1983 imposes liability on
municipalities only when the action that is alleged to be
unconstitutional implements or executes an official policy or
custom. See Monell v. Department of Social Services, 436
U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
From the complaint, it is unclear whether Wangenstein is
being sued in his personal or official capacity. However, pro
se complaints, if possible, should be construed as asserting
both claims. Jackson v. Dinkins, 1995 WL 657075 at *1
(S.D.N.Y. Nov.8, 1995)(citing Frank v. Relin, 1 F.3d 1317,
1326 (2d Cir.)(“a plaintiff who has not clearly identified in her
complaint the capacity in which the defendant is sued should
not have the complaint automatically construed as focusing
on one capacity to the exclusion of the other”), cert. denied,
510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993)).
*2 The complaint does allege an assault by certain members
of the OBCC Emergency Response Unit. (Compl. at 3–4). It
alleges that while the plaintiff was making a telephone call,
members of the Emergency Response Unit entered housing
area 1N and defendant Parker verbally harassed the plaintiff,
and with the assistance of other members of the Emergency
Response Unit, assaulted him. (Compl. at 3–4). However,
the complaint does not allege the personal involvement
of Warden Wangenstein. The complaint mentions Warden
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Crown v. Wagenstein, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Wangenstein only in the caption, and fails to allege any act or
omission by Wangenstein. See Taylor v. City of New York, 953
F.Supp. 95, 99 (S.D.N.Y.1997)(Edelstein, J.)(finding mere
inclusion of warden's name in a complaint insufficient to
allege personal involvement).
As for Warden Wangenstein's liability in his official capacity,
the complaint fails to allege a municipal policy or custom
that defendant was executing, or that such a policy or custom
caused the alleged violation of the plaintiff's constitutional
rights, as required by Monell. The absence of any such
allegation prevents a finding of liability for defendant
Wangenstein in his official capacity. See Monell, 436 U.S. at
694.
Conclusion
Because the complaint fails to state a claim against Warden
Wangenstein upon which relief can be granted, the motion to
dismiss defendant Wangenstein is granted.
SO ORDERED
All Citations
Not Reported in F.Supp., 1998 WL 118169
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 85 of 240

DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 2560008
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
John DERAFFELE, Plaintiff,
v.
CITY OF NEW ROCHELLE, Defendant.
No. 15-CV-282 (KMK)
|
Signed 06/13/2017
Attorneys and Law Firms
John DeRaffele, New Rochelle, NY, Pro Se.
Steven C. Stern, Esq., David A. Gold, Esq., Sokoloff Stern
LLP, Carle Place, NY, Counsel for Defendant.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 John DeRaffele (“Plaintiff”), proceeding pro se, filed
this Action pursuant to 42 U.S.C. § 1983, alleging that the
City of New Rochelle (the “City” or “Defendant”) violated
his rights under the First, Fourth, Eighth, and Fourteenth
Amendments. (See Am. Compl. (Dkt. No. 56).) Before the
Court is Defendant's Motion To Dismiss Plaintiff's Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)
(6) (the “Motion”). (See Dkt. No. 60.) For the reasons to
follow, Defendant's Motion is granted. 1
I. Background
A. Factual Background
Plaintiff's Amended Complaint contains an abbreviated
factual background as compared to Plaintiff's initial
Complaint in this Action. (Compare Am. Compl. ¶¶ 4–23,
with Compl. 5–14.) 2 The following allegations are taken
from Plaintiff's Amended Complaint and are assumed true for
the purpose of resolving the instant Motion.
In December 1982, Plaintiff purchased the property at 867
Weaver Street, New Rochelle, New York (“867 Weaver
Street”) as “a pre-existing non-conforming home as dictated
by the 1955 zoning ordinance.” (Am. Compl. ¶ 2.)
Plaintiff avers that “[f]rom 1955 to present, no Certificate
of Occupancy has ever been issued for ... 867 Weaver
Street.” (Id. ¶ 7.) In 2007, the property adjacent to 867 Weaver
Street “consist[ed] of 16 acres, two single-family homes, [a]
barn, [a] garage[,] ... [a] commercial building[,] and [a] golf
range.” (Id. ¶ 8.) This land was sold to a developer to build
a “26 single family home sub[ ]division.” (Id.) Access to
this adjacent property was through Plaintiff's driveway and
“Plaintiff believed an easement was in effect at the time
of his purchase and ended upon the sale of [the] adjacent
property in 2007.” (Id.) Plaintiff “agreed to [a] limited use
[by] the developer ... until [the developer] could put in his
own entrance.” (Id.)
When the work on the adjacent property's driveway was
completed, the developer “refused to stop using Plaintiff's
driveway as a construction road.” (Id. ¶ 9.) Plaintiff thus
complained to the City Building Inspector, Paul Vacca
(“Vacca”), who “refused to take any action against the
developer,” and therefore “cause[d] the continuation of
trespassing of heavy duty trucks and equipment through
Plaintiff's property.” (Id.) Due to the inaction, Plaintiff
approached City Manager Charles Strome and Mayor Noam
Bramson about the developer's use of his driveway. (See id.)
*2 On November 12, 2010, one of Plaintiff's tenants “called
the fire department when their carbon monoxide alarm went
off.” (Id. ¶ 10.) Plaintiff contends “[i]t was a simple alarm”
to which “one fire truck responded and within minutes the
problem was corrected.” (Id.) However, Plaintiff's tenants
were precluded from reentering the home for approximately
two hours. (See id.) Vacca then arrived on the scene and
“went through ... Plaintiff's house without a search warrant
or permission.” (Id. ¶ 11.) Vacca instructed Plaintiff to come
to his office on November 16, 2010. (See id.) The following
day, Vacca sent an inspector to “inspect the outside of ...
Plaintiff's house and talk to the tenants on the third floor,”
which Plaintiff contends resulted in “additional tickets under
code 111-8.” (Id. ¶ 12.)
At the November 16, 2010 meeting, Vacca told Plaintiff that
“he [could not] find any files for 867 Weaver Street,” but that
he was “issuing five tickets based on a building card in the
City's files.” (Id. ¶ 13 (internal quotation marks omitted).)
Plaintiff continued to seek files pertaining to his property, (see
id. ¶¶ 13–14), but was ultimately told to file a freedom of
information law (“FOIL”) request, (see id. ¶ 15). On January
15, 2011, Plaintiff met with City Clerk Benny Giles (“Giles”)
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DeRaffele v. City of New Rochelle, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
for approximately two hours to review files, after which both
Plaintiff and Giles concluded that “no files for 867 Weaver
Street existed.” (Id. ¶ 16.) On February 15, 2011, Plaintiff
was informed that files were in fact located and the next day,
Plaintiff was given “a brand new folder with several pieces of
paper in it.” (Id. ¶ 18.) Plaintiff ultimately determined that the
files were “bogus,” that he had already inspected them, and
that Giles “should be ashamed of himself.” (Id.)
The prosecution against Plaintiff for the housing violations
proceeded to trial before Judge Kettner in the City Court of
New Rochelle (the “City Court”) in May 2012. (See id. ¶ 21.)
Plaintiff asserts that the trial lasted approximately two years
and resulted in a $12,900 fine against Plaintiff. (See id. ¶ 22.)
Plaintiff paid the fine and immediately appealed the decision.
(See id. ¶ 23.)
Plaintiff seeks an “order ... [d]eclaring that Plaintiff's
rights were violated under the First, Fourth, Eighth[,] and
Fourteenth Amendment[s],” as well as monetary damages in
the amount of five million dollars, and punitive damages. (Id.
at 21–22.)
B. Procedural History
Plaintiff commenced the instant Action on January 15, 2015.
(See Dkt. No. 1.) Pursuant to a Scheduling Order adopted
by the Court on April 15, 2015, (see Dkt. No. 27), the City
and former defendants filed two motions to dismiss, which
were fully briefed on July 13, 2015, (see Dkt. Nos. 32–37,
40, 42, 44–45). In an Opinion & Order (“Opinion”) dated
March 30, 2016, the Court granted the motions and granted
Plaintiff leave to file an Amended Complaint. (See Dkt. No.
46.) Plaintiff filed his Amended Complaint on July 15, 2016,
asserting claims only against the City. (See Dkt. No. 56.)
On September 9, 2016, the City filed the instant Motion To
Dismiss and accompanying papers, (see Dkt. Nos. 60–63),
and on September 22, 2016, Plaintiff filed his opposition, (see
Dkt. No. 64).
On September 30, 2016, Plaintiff filed a Motion to Submit
Supplemental Information Requested by the Court, attaching
the decision of the Appellate Division in People v. DeRaffele,
43 N.Y.S.3d 667 (App. Div. 2016), issued September 20,
2016. (See Dkt. No. 65.) In the decision, the Appellate
Division reversed the June 19, 2014 judgment of Judge
Kettner, “remit[ed] the matter to the City Court for a new
trial before a different judge,” and remitted the $12,900
fine. DeRaffele, 43 N.Y.S.3d at 671. On November 7, 2016,
Defendant filed its papers in reply. (See Dkt. Nos. 69–70.)
On November 17, 2016, without prior permission of the
Court, Plaintiff filed sur-reply papers. (See Dkt. Nos. 76–77.)
Plaintiff additionally filed a document on February 15, 2017,
entitled “Supplemental Information to Court,” attaching over
100 pages of exhibits. (See Dkt. No. 78.)
II. Discussion
A. Standard of Review
*3 “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration,
citation, and internal quotation marks omitted). Indeed,
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id. (alteration and
internal quotation marks omitted). Instead, a complaint's
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
Although “once a claim has been stated adequately, it may
be supported by showing any set of facts consistent with
the allegations in the complaint,” id. at 563, and a plaintiff
must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not
“nudged [his] claim[ ] across the line from conceivable to
plausible, the[ ] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint
states a plausible claim for relief will ... be a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense. But 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.’
” (second alteration in original) (citation omitted) (quoting
Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks
a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
In addition, “when ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S.
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89, 94 (2007) (per curiam). Further, “[f]or the purpose of
resolving [a] motion to dismiss, the [c]ourt ... draw[s] all
reasonable inferences in favor of the plaintiff.” Daniel v. T &
M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y.
2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). “In adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated
on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and
to matters of which judicial notice may be taken.” Leonard
F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Hendrix v. City
of New York, No. 12-CV-5011, 2013 WL 6835168, at *2
(E.D.N.Y. Dec. 20, 2013) (same).
Where, as here, a plaintiff proceeds pro se, the court must
“construe[ ] [his] [complaint] liberally and interpret[ ] [it] to
raise the strongest arguments that [it] suggest[s].” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam)
(internal quotation marks omitted); see also Farzan v. Wells
Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at
*12 (S.D.N.Y. Dec. 2, 2013) (same), aff'd sub nom. Farzan
v. Genesis 10, 619 Fed.Appx. 15 (2d Cir. 2015). In deciding
a motion to dismiss a pro se complaint, it is appropriate to
consider certain “materials outside the complaint to the extent
that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514,
at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks
omitted), including “documents that a pro se litigant attaches
to his opposition papers,” Agu v. Rhea, No. 09-CV-4732,
2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)
(italics omitted); see also Walker v. Schult, 717 F.3d 119,
122 n.1 (2d Cir. 2013) (noting that a court may consider
“factual allegations made by a pro se party in his papers
opposing the motion” (italics omitted)). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro
se party from compliance with relevant rules of procedural
and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555,
559 (S.D.N.Y. 2013) (internal quotation marks omitted); see
also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir.
2008) (“[P]ro se litigants generally are required to inform
themselves regarding procedural rules and to comply with
them.” (italics and internal quotation marks omitted)).
B. Analysis
Plaintiff's Amended Complaint asserts claims only against
the City. 3 Plaintiff alleges that Defendant violated his rights
under the First, Fourth, Eighth, and Fourteenth Amendments.
(See generally Am. Compl.)
1. First Amendment
*4 Plaintiff asserts that “his [c]ivil [r]ights under the First
Amendment [were] violated because ... Plaintiff could never
petition the [C]ity ... for redress after experiencing the
conspiracy that took place ... from ... November 12, 2010 ...
until the trial ended on June 12, 2014.” (Id. ¶ 25.) Plaintiff
questions how he could “ever trust the fire department, police
department, building department or court system in the [C]ity
of New Rochelle after being treated in this manner.” (Id.)
Plaintiff further avers that his First Amendment rights were
violated by the City “through its employees” because they
were “aware of what was going on and took no action to
stop it.” (Id.) In response, Defendant contends that “Plaintiff
pleads no facts demonstrating the City or its employees
interfered with his right to petition the government.” (Mem.
of Law in Supp. of Def.'s Mot. To Dismiss (“Def.'s Mem.”)
10 (Dkt. No. 61).)
“[T]he right of access to the courts is an aspect of the First
Amendment right to petition the Government for redress
of grievances.” Bill Johnson's Rests., Inc. v. N.L.R.B., 461
U.S. 731, 741 (1983); see also Hamilton v. Fischer, No.
12-CV-6449, 2015 WL 8207439, at *2 (W.D.N.Y. Dec. 7,
2015) (“The Supreme Court has ‘made explicit that the [First
Amendment] right to petition extends to all departments of
the Government, and that the right of access to the courts
is but one aspect of the right of petition.’ ” (alterations and
some internal quotation marks omitted) (quoting BE & K
Constr. Co. v. N.L.R.B., 536 U.S. 516, 525 (2002))). Plaintiff
was afforded a full trial before Judge Kettner. To the extent
Plaintiff was displeased with the outcome of that trial, he had
—and took advantage of—the right to appeal the decision.
Indeed, Plaintiff recently succeeded on appeal, was awarded
a new trial before a different City Court judge, and the fines
were remitted. See DeRaffele, 43 N.Y.S.3d at 671. Moreover,
any claim that Plaintiff was deprived of his right to petition
the government for redress is belied by the fact of the filing
of this Action.
The crux of Plaintiff's right-to-petition claim appears to be a
claim for retaliatory prosecution under the First Amendment.
(See Am. Compl. ¶ 25 (“Vacca sought revenge against ...
Plaintiff for his complaints sent to ... Vacca's boss, the City
Manager, Mr. Charles Strome and Mayor Noam Bramson
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regarding the mishandling of Plaintiff's complaints regarding
his driveway.”).) As noted in the Court's prior Opinion, this
claim is barred by the statute of limitations. (See Opinion
18 n.14 (“[S]uch a cause of action would have accrued
on November 16, 2010 when the citations were issued ...
[and] that claim would have expired three years later on
November 16, 2013, long before the commencement of the
instant Action.” (citations omitted)).) Plaintiff has provided
no additional information to justify the tolling of the statute
of limitations. Accordingly, Plaintiff's claims under the First
Amendment are dismissed.
2. Fourth Amendment
In its prior Opinion, the Court found that “Plaintiff's Fourth
Amendment claim clearly accrued on November 12, 2010, the
date on which the allegedly illegal search and entry occurred,”
and therefore was “time-barred unless there [was] a basis for
tolling of the statute of limitations.” (Opinion 19 (citation
omitted).) Equitable tolling of the statute of limitations
is applied “only in ‘rare and exceptional circumstances,’
where ... ‘extraordinary circumstances’ prevented a party
from timely performing a required act, and the party ‘acted
with reasonable diligence throughout the period he sought
to toll.’ ” Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir.
2005) (alteration omitted) (quoting Doe v. Menefee, 391
F.3d 147, 159 (2d Cir. 2004)). Among these circumstances
are “[f]raudulent or deceptive acts on the part of [the]
defendants ..., but only to the extent that the fraud concealed
the existence of [the] plaintiff's cause of action and only for as
long as the fraud or deception actually prevented the plaintiff
from knowing or having reason to know that he has been
injured.” Verdon v. Consol. Rail Corp., 828 F. Supp. 1129,
1140 (S.D.N.Y. 1993).
*5 In his Amended Complaint, Plaintiff provides no facts
warranting tolling of the limitations period, but rather
reiterates the allegations that “Vacca entered [Plaintiff's]
home without probable cause or a search warrant.” (Am.
Compl. ¶ 27.) As the Court previously noted, “Plaintiff
does not allege any [facts suggesting fraud concealed the
existence of Plaintiff's claims] and, to the contrary, suggests
that he knew of the purported violations at the time they
occurred.” (Opinion 20.) Indeed, Plaintiff acknowledges that
he was present at the time of the search and entry, (see Am.
Compl. ¶ 11), and thus, it is clear that on November 12,
2010, he knew “of the injur[ies] which [are] the basis of
his [A]ction,” Pearl v. City of Long Beach, 296 F.3d 76,
80 (2d Cir. 2002) (internal quotation marks omitted); accord
Hueber v. McCune, No. 14-CV-49, 2014 WL 2047763, at *4
(W.D.N.Y. May 19, 2014) (“In the context of an allegedly
illegal entry into an individual's home, the plaintiff's claim
accrues when the plaintiff knows or should have known
that the entry occurred.”), aff'd, 589 Fed.Appx. 9 (2d Cir.
2014). Therefore, for the reasons stated in the Court's prior
Opinion, Plaintiff's Fourth Amendment claims are dismissed.
(See generally Opinion 19–21.)
3. Eighth Amendment
In his Amended Complaint, Plaintiff newly asserts that the
City violated his rights under the Eighth Amendment when
it “levied excessive fines of $12,900 for five violations
against ... Plaintiff.” (Am. Compl. ¶ 29.) The Court agrees
with Defendant that Plaintiff's Eighth Amendment claim is
moot. (See Reply Mem. of Law in Further Supp. of Def.'s
Mot. To Dismiss 8 (Dkt. No. 70).)
As noted, the Appellate Division reversed the conviction of
Plaintiff, ordered a new trial, and ordered remittance of any
fines Plaintiff paid. See DeRaffele, 43 N.Y.S.3d at 671. “A
case becomes moot ... when it is impossible for a court to
grant any effectual relief whatever to the prevailing party.”
Am. Freedom Def. Initiative v. Metro. Transp. Auth., 815 F.3d
105, 109 (2d Cir. 2016) (internal quotation marks omitted).
Whether excessive or not, Plaintiff has been returned the
$12,900. Thus, the relief Plaintiff seeks is now moot and
accordingly, his Eighth Amendment claim is dismissed. See,
e.g., Air Espana v. Brien, 165 F.3d 148, 153 (2d Cir. 1999)
(finding that the plaintiff's claims as to “fines that were
canceled ... are moot”).
4. Fourteenth Amendment
In the Amended Complaint, Plaintiff identifies 10 ways in
which his “rights under the Fourteenth Amendment were
violated.” (Am. Compl. ¶ 31.) These alleged violations
include: (1) the City Court's “grant[ing of] the Motion in
Limine”; (2) “[t]he conspiracy that was formed by ... Vacca
and included numerous department heads that lied under
oath to protect ... Vacca's false testimony and evidence”; (3)
“[t]he filing of false documents during the trial”; (4) “[t]he
delay of the trial[,] violating Plaintiff's right to a speedy
trial”; (5) “[t]he [City Court] sustaining ... the Prosecutor[’s]
(hundreds) of objections in order to prevent the truth from
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being revealed”; (6) the City Court's “[r]efusal to have [the
government's] witness declared a hostile witness”; (7) the
City Court's “[r]efusal to grant a mistrial”; (8) the City Court's
“refus[al] to acknowledge judicial review of laws”; (9) the
City Court's “refus[al] to acknowledge the truthful testimony
of Plaintiff's witnesses”; and (10) the City Court's “changing
the [b]urden of [p]roof.” (Id.) In his opposition to Defendant's
Motion, Plaintiff also argues that the “due process claim stems
from the fact that the City did not allow a notice to cure prior
to writing the five tickets.” (Reply in Opp'n to Mem. in Supp.
of Mot. To Dismiss (“Pl.'s Opp'n”) 26 (Dkt. No. 64).)
Each of Plaintiff's claims involves conduct effected by former
defendants Judge Kettner and prosecutor Murphy, with the
exception of the second claim, alleging the existence of a
conspiracy between former defendants Vacca, Whittemore,
Kelly, Murphy, and Judge Kettner. As detailed in the Court's
prior Opinion, such individuals have judicial, prosecutorial,
and testimonial immunity, (see generally Opinion 21–28),
and as explained in the Court's prior Opinion and infra,
the City cannot be held liable for the conduct of these
employees. 4 Moreover, to the extent these claims involve
alleged irregularities during the trial, they could be and, in
fact, were addressed on appeal by the Appellate Division.
5. Monell
*6 Defendant contends that Plaintiff has failed to state a
claim pursuant to Monell v. Department of Social Services
of the City of New York, 436 U.S. 658 (1978), as “[P]laintiff
suffered no violation of his constitutional rights.” (Def.'s
Mem. 17.) Additionally, Defendant argues that “[t]here are
no factual allegations that the alleged wrongful conduct took
place pursuant to some municipal policy, practice, or custom,”
and “[P]laintiff does not allege that any final policymaking
official took action against him.” (Id.)
In its prior Opinion, the Court found that because “Plaintiff
ha[d] failed to state a constitutional claim against any
individual Defendant, ... the Complaint [could not] satisfy
th[e] prerequisite to municipal liability.” (Opinion 33 (internal
quotation marks omitted).) Moreover, the Court held that
“even if any underlying cause of action had survived, Plaintiff
ha[d] not plausibly alleged a Monell claim against the City,
necessitating dismissal on this independent basis as well.” (Id.
at 34.) 5
Plaintiff has failed to cure the deficiencies identified in his
initial Complaint. Plaintiff's Amended Complaint still “does
not plead the existence of a municipal policy or custom at
all,” (id.), but rather realleges the existence of a conspiracy
in which the City “knowingly allow[ed] its employees ... to
falsely charge Plaintiff with [five] violations, ... enlist[ed]
other department heads to lie and present false reports against
Plaintiff ..., [and] enlisted the help of ... Judge ... Kettner[ ] to
ensure a victory on [the City's] behalf,” (Am. Compl. ¶ 1).
It is well established that a Monell claim cannot lie in the
absence of an underlying constitutional violation. See Segal
v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)
(“Monell does not provide a separate cause of action ...;
it extends liability to a municipal organization where that
organization's failure to train, or the policies or customs
that it has sanctioned, led to an independent constitutional
violation.”); Stewart v. Schiro, No. 13-CV-3613, 2015 WL
1854198, at *16 (E.D.N.Y. Apr. 22, 2015) (explaining
that where “the [c]ourt has already determined that [the]
[p]laintiff failed to demonstrate an underlying constitutional
violation...., the Monell claim necessarily fails”); Thomas v.
Westchester County, No. 12-CV-6718, 2013 WL 3357171,
at *6 (S.D.N.Y. July 3, 2013) (“Absent an underlying
constitutional violation, a Monell claim cannot lie.”). As
detailed supra, Plaintiff has failed to allege a constitutional
violation pursuant to the First, Fourth, Eighth, or Fourteenth
Amendments. See Claudio v. Sawyer, 675 F. Supp. 2d 403,
408 (S.D.N.Y. 2009) (“Under Second Circuit case law, ...
a prerequisite to municipal liability under Monell is an
underlying constitutional violation by a state actor.”), aff'd,
409 Fed.Appx. 464 (2d Cir. 2011). Once a “district court
properly [finds] no underlying constitutional violation, its
decision not to address the municipal defendants' liability
under Monell [is] entirely correct.” Segal, 459 F.3d at 219;
see also Bolden v. County of Sullivan, 523 Fed.Appx. 832,
834 (2d Cir. 2013) (summary order) (“[B]ecause the district
court properly found no underlying constitutional violation,
its decision not to address the [c]ounty defendants' liability
under Monell was correct.”); Lener v. Hempstead Pub. Sch.,
55 F. Supp. 3d 267, 283 n.14 (E.D.N.Y. 2014) (“[W]hen a
plaintiff lacks any underlying claim of a deprivation of a
constitutional right, the claim of municipal liability on the part
of the municipal defendant must be dismissed as well.”).
*7 In his opposition to Defendant's Motion, Plaintiff—for
the first time—contends that “[t]he conspiracy was a common
practice of the City of New Rochelle” and that “Vacca ... [and
a] task force le[ ]d by Mr. Joseph Girardi ... would go through
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every house in [W]est New Rochelle, enter the premises
without a search warrant and then ticket the owner for illegal
multi-families when in fact these houses were legal non-
conforming pre-existing multi-family houses.” (Pl.'s Opp'n
29–30.) 6 Under Monell, “an act performed pursuant to
a ‘custom’ that has not been formally approved by an
appropriate decisionmaker may fairly subject a municipality
to liability on the theory that the relevant practice is so
widespread as to have the force of law,” Bd. of Cty. Comm'rs
of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997), which is
to say, that it is a “longstanding practice or custom which
constitutes the ‘standard operating procedure’ of the local
government entity,” Jett v. Dall. Indep. Sch. Dist., 491 U.S.
701, 737 (1989); see also Kern v. City of Rochester, 93
F.3d 38, 44 (2d Cir. 1996) (noting that a municipality's
custom “need not be memorialized in a specific rule or
regulation”). Therefore, a plaintiff may establish municipal
liability by demonstrating that a municipality “indirectly
caused the misconduct of a subordinate municipal employee
by acquiescing in a longstanding practice or custom which
may fairly be said to represent official policy.” Miller v.
County of Nassau, 467 F. Supp. 2d 308, 314 (E.D.N.Y. 2006).
To prevail on this theory of municipal liability, however, a
plaintiff must prove that the custom at issue is permanent
and well settled. See City of St. Louis v. Praprotnik, 485 U.S.
112, 127 (1988) (noting that the Supreme Court “has long
recognized that a plaintiff may be able to prove the existence
of a widespread practice that, although not authorized by
written law or express municipal policy, is ‘so permanent
and well settled as to constitute a custom or usage with the
force of law’ ”) (some internal quotation marks omitted)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–
68 (1970)). As the Supreme Court emphasized in Monell,
Congress enacted § 1983 to impose liability on municipalities
“because of the persistent and widespread discriminatory
practices of state officials,” and out of recognition that such
practices could become “so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.” 436 U.S.
at 691 (some internal quotation marks omitted).
Here, Plaintiff's single conclusory statement in his opposition
that “the conspiracy was a common practice” is not sufficient
to state a claim for Monell liability under § 1983. See Gordon
v. City of New York, No. 10-CV-5148, 2012 WL 1068023, at
*4 (E.D.N.Y. Mar. 29, 2012) (“[M]ere conclusory references
to a policy or custom, with no supporting facts, will not
suffice to state a claim of § 1983 municipal liability.”); see
also Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 124 (2d
Cir. 1991) (“[O]ur prior cases suggest that an allegation of
municipal policy or custom would be insufficient if wholly
conclusory.”); 5 Borough Pawn, LLC v. City of New York,
640 F. Supp. 2d 268, 299 (S.D.N.Y. 2009) (dismissing Monell
claim because the plaintiffs' “assertion that the [c]ity ha[d]
an unconstitutional policy [was] based on nothing more than
their unsupported supposition”). The alleged “practice” of
visiting “every house in [W]est New Rochelle,” conducting
purportedly warrantless searches, and ticketing owners for
“legal non-conforming” uses, (Pl.'s Opp'n 30), does not rise
to the type of “permanent, or close to permanent” practice
which can trigger Monell liability, Davis v. City of New
York, 228 F. Supp. 2d 327, 346 (S.D.N.Y. 2002), aff'd, 75
Fed.Appx. 827 (2d Cir. 2003) (explaining that “[w]idespread
means that [the unconstitutional acts in question] are common
or prevalent throughout the [government body]; well-settled
means that the [unconstitutional acts in question] have
achieved permanent, or close to permanent, status”).
Furthermore, Plaintiff has not sufficiently alleged that a City
policymaker was responsible for the alleged unconstitutional
practice. See Pignone v. Village of Pelham Manor, No. 10-
CV-2589, 2014 WL 929805, at *4 (S.D.N.Y. Mar. 6, 2014)
(noting that “[a] plaintiff bears the burden of establishing
an official's status as a final policymaker with proof of
the official's scope of employment and his role within the
municipal or corporate organization”); cf. Dellutri v. Village
of Elmsford, 895 F. Supp. 2d 555, 568 (S.D.N.Y. 2012)
(“[The] [p]laintiff only alleges that the inspector and assistant
inspector issued a notice of violation. Without more, this
does not demonstrate that these individuals exercised final
policymaking authority.”). Indeed, even if the Court were to
assume that either Vacca or Joseph Girardi were policymakers
for the City, Plaintiff would need to demonstrate that they
were “policymaker[s] with respect to the particular issue
involved here” in order to hold the City liable for their
actions. Baity v. Kralik, 51 F. Supp. 3d 414, 437 (S.D.N.Y.
2014) (internal quotation marks omitted). As the Court
noted in its prior Opinion, Plaintiff is unable to do so,
as “ ‘the act of issuing citations cannot be said to be a
matter of policymaking.’ ” (See Opinion 35–36 n.26 (quoting
Emanuele v. Town of Greenville, 143 F. Supp. 2d 325, 335
(S.D.N.Y. 2001)).)
*8 To the extent Plaintiffs opposition identifies City
Manager Strome as a policymaker because he “became aware
of the conspiracy and did nothing to stop it and gave his
formal approval,” (Pl.'s Opp'n 30), Plaintiff offers no factual
support for this boilerplate assertion. In any event, as noted
above, Plaintiffs failure to establish “any underlying claim
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of a deprivation of a constitutional right” requires that his
“claim of municipal liability on the part of the [City] ... be
dismissed.” Lener, 55 F. Supp. 3d at 283 n.14. In the absence
of sufficient facts to establish municipal liability, the Court
dismisses all claims against the City.
III. Conclusion
In light of the foregoing analysis, the Court grants Defendant's
Motion To Dismiss Plaintiffs Amended Complaint.
Because Plaintiff has already amended his Complaint in
response to a decision on the merits of his claims, but has still
failed to state a claim, the Amended Complaint is dismissed
with prejudice. See Denny v. Barber, 576 F.2d 465, 471 (2d
Cir. 1978) (holding that the plaintiff was not entitled to “a
third go-around”); Melvin v. County of Westchester, No. l4-
CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar.
29, 2016) (granting motion to dismiss with prejudice where
“[the] [p]laintiff has already had two bites at the apple, and
they have proven fruitless” (alteration and internal quotation
marks omitted)).
The Clerk of Court is respectfully requested to terminate the
pending Motion, (see Dkt. No. 60), and close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 2560008
Footnotes
1 Plaintiff initially brought this Action against the City, Benny Giles, Douglas Kelly, Brian Murphy, Louis Chipper
Perone, Charles Strome, Paul Vacca, Daniel Whittemore, James Generoso, and Judge Susan Kettner,
alleging that all defendants violated his constitutional rights under the First, Fourth, Fifth, and Fourteenth
Amendments. (See Compl. (Dkt. No. 1).) In an Opinion & Order (“Opinion”) issued March 30, 2016, the Court
granted the City's and former defendants' motions to dismiss and granted Plaintiff leave to file an Amended
Complaint. (See Opinion 36 (Dkt. No. 46).) Plaintiff filed the instant Amended Complaint on July 15, 2016,
naming only the City as Defendant. (See Am. Compl.)
2 For a fuller recitation of the relevant factual background, see the Court's prior Opinion. (See Opinion 2–5.)
3 While Plaintiff continues to detail the allegedly wrongful acts of City employees, the “Introduction,” “Nature
of the Suit,” and “Parties” sections of Plaintiff's Amended Complaint make clear that Plaintiff intends only
to name the City as Defendant. (See Am. Compl. 1 (“Plaintiff ... brings this suit against the City of New
Rochelle....”); id. ¶ 1 (“This [A]ction is brought by Plaintiff to seek damages from ... Defendant from knowingly
allowing its employees under the umbrella of the City [to violate Plaintiff's rights]”); id. ¶ 2 (describing the
Parties as Plaintiff and “[t]he City of New Rochelle[,] consist[ing] of a mayor and five members of [the] city
council who guide the [C]ity”).)
4 For the reasons stated in the Court's March 2016 Opinion, Plaintiff's allegations that “[t]he delay of the
trial violat[ed] [his] right to a speedy trial,” (Am. Compl. ¶ 31), are dismissed, (see Opinion 10 n.5 (“Sixth
Amendment protections did not apply to Plaintiff's prosecution in the City Court.”)).
5 As the Court's prior Opinion provides an overview of the legal landscape regarding municipal liability under
§ 1983, the Court does not reiterate the relevant case law here. (See generally Opinion 31–35.)
6 It is well established that the Court may consider “factual allegations made by a pro se party in his papers
opposing the motion.” Walker, 717 F.3d at 122 n.1 (italics omitted).
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 5002215
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Laytonia FLAGG, Plaintiff,
v.
NYS DIVISION OF PAROLE; Mark Saben,
Parole Officer; Syracuse Police Dept.; Detective
William Summers, ID#409; D.P. Proud, ID#
0140; Richard Curran, ID# 0066; William
J. Fitzpatrick, Onondaga County, District
Attorney; and Sean Chase, D.A., Defendants.
5:19-CV-886 (TJM/ATB)
|
Signed 08/15/2019
Attorneys and Law Firms
LAYTONIA FLAGG, Plaintiff pro se
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent me an amended 1 civil rights
complaint filed by pro se plaintiff Laytonia Flagg. (Dkt. No.
3). Plaintiff Flagg has also filed an application to proceed in
forma pauperis (“IFP”). (Dkt. No. 4).
I. IFP Application
A review of plaintiff's IFP application shows that she declares
she is unable to pay the filing fee. (Dkt. No. 4). The court finds
that plaintiff meets the financial criteria for IFP status.
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines that
the action is (i) frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell
Atl. Corp., 550 U.S. at 555). The court will now turn to
a consideration of the plaintiff's complaint under the above
standards.
II. Complaint
Plaintiff states that she is the mother of Mario Leslie, who at
the time of the incidents described in the complaint, was on
parole. (Amended Complaint (“AC”) at 1). 2 On August 8,
2016, defendant New York State Parole Officer (“PO”) Mark
Saben went to Mr. Leslie's home at 514 Marcellus Street in
Syracuse, New York, to conduct a “standard home visit.” 3
(Id.) Mr. Leslie lived at the Marcellus Street address with
his girlfriend, Tamacha Rodriguez. (Id.) Plaintiff claims that
Ms. Rodriguez answered the door for PO Saben, and that
Mr. Leslie was “summoned” from his bedroom to speak with
defendant Saben. (Id.) After some discussion, PO Saben was
walking toward the front door, when he spotted some glassine
packets “known to contain heroin.” (Id.) Upon discovering
the glassine packets, defendant Saben informed Mr. Leslie
that he was going to conduct a search of the entire residence
according to the conditions of his parole release. (Id.)
*2 Plaintiff states that, as a result of the subsequent
search, the officer discovered a safe, containing a loaded
firearm and $31,925 in United States currency. Defendant
Saben also discovered a key chain on which were a set
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of keys that were identified as keys to plaintiff's residence.
Plaintiff claims that “[a]t this point Sr. P.O. Rigby called the
Syracuse Police Department.” 4 (AC at 2). Plaintiff claims
that defendant Rigby spoke to Sergeant A. Llukaci, a detective
with the Syracuse Police Department, and Sergeant Llukaci
told defendants Detectives William Summers and D.P. Proud
to go to the Marcellus Street address. Plaintiff states that
upon his arrival, defendant Proud stated that he spoke to Ms.
Rodriguez, who told defendant Proud that Mr. Leslie kept
his money at his mother's apartment “although there is no
affidavit on file to attest to that assertion by the [sic] Det.
Proud.”
Defendant Summers obtained a warrant for the search of
plaintiff's home at 112 Fordham Rd. in Syracuse, New York.
(AC Ex. CM/ECF p.16-17). Plaintiff claims that she was
not home when the “Syracuse Police” and defendant Saben
arrived at her home to execute the search warrant. 5 (AC
at 2). The officers entered with the key that was found at
Mr. Leslie's Marcellus Street home. 6 (Id.) Plaintiff arrived
shortly thereafter, but was denied entrance to her home
while the search was being executed. (Id.) Plaintiff states
that the officers searched plaintiff's apartment and recovered
$40,000.00 in cash from a safe that was located in plaintiff's
bedroom closet. Plaintiff alleges that the officers confiscated
the money.
Plaintiff claims that the officers did not have probable cause
to obtain the warrant to search her home because there was
no proof that Ms. Rodriguez ever made the statement that
Mr. Leslie kept his money at his mother's house, and thus,
the warrant was obtained improperly. Plaintiff claims that her
Fourth Amendment rights were violated as the result of the
search of her apartment. Plaintiff then claims that after the
seizure of her $40,000.00, she informed defendant Assistant
District Attorney (“ADA”) Sean Chase that the money did
not belong to Mr. Leslie, and that the money was plaintiff's
savings which she would be using to purchase a new home.
(AC at 5). Plaintiff claims that ADA Chase told her that his
“office would return the illegally seized money.” (Id.)
Plaintiff states that, shortly after the incident, she also filed
a “complaint” form to complain about the police “conduct
in Plaintiff's home,” and to request the “immediate return of
the Plaintiff's money.” (Id.) Plaintiff states that the District
Attorney's Office responded to the “property release” request
only after plaintiff obtained the intervention of “a 3 rd party
(Feldman, Kramer & Monaco, P.C.)” (Id.) Plaintiff claims that
the property release form showed that the plaintiff's “legally
possessed currency was improperly forfeited along with the
monies ($31,925.00) seized at 514 Marcellus St.” (AC at 6).
Plaintiff claims that ADA Chase told plaintiff on three
separate occasions that her money was going to be returned,
but that this was a “stalling tactic” by the District Attorney's
Office. ADA Chase told plaintiff that he was waiting to
hear from Mr. Leslie's attorney “in hopes of persuading [Mr.
Leslie] to sign a forfeiture document that later became clear
to the Plaintiff that the forfeiture included what was seized at
both residences....” (AC at 6). The forfeiture document states
that Mr. Leslie stipulated to the forfeiture of $67,269.00, and
that he was not aware of any other person who claimed to
be the owner of the property. 7 (AC at 6). Plaintiff alleges
that the $40,000.00 was not Mr. Leslie's to forfeit. Plaintiff
also alleges that the amount on the stipulation of forfeiture
that Mr. Leslie signed does not account for the entire amount
seized, even though plaintiff was not given any of her money
back. Plaintiff claims that the actual amount seized, including
her $40,000.00 was $71,925.00, and that there is $4,656.00
missing from the total. (Id.) Plaintiff also claims that the
individuals who seized her money did not have the “warrant
in hand” and never gave her a receipt for the money that they
took. (AC at 7). Plaintiff states that the money taken from her
home was not specifically mentioned in any of the paperwork
that was subsequently provided to plaintiff as the result of her
inquiries. (AC at 8).
*3 Plaintiff states that she spoke to then-Chief of the
Syracuse Police, Frank Fowler, who told plaintiff that her
concerns would be “thoroughly investigated,” but then did not
provide plaintiff a report of the investigation and told plaintiff
to file a Freedom of Information request if she wished to see
the report. (Id.) Plaintiff has attached correspondence that she
received from former Chief Fowler, stating that the report had
been forwarded to him and that plaintiff could “be assured
that [Fowler would] take the proper administrative action in
this case.” (AC Ex. CM/ECF p.19).
Although the AC contains a “Second Cause of Action,”
plaintiff essentially repeats that her Fourth Amendment rights
were violated by the defendants' actions in conjunction with
the search of her home and the seizure of her money. (AC
at 8-9). Plaintiff states that she has not been afforded any
documentation that would establish probable cause to search
her home. (AC at 9). Plaintiff states that there is no connection
between her and Mr. Leslie's “illegal activities,” and there
was nothing “illegal” found in plaintiff's apartment. (Id.) In
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applying a very liberal reading of the AC, 8 the court could
interpret plaintiff's second cause of action as a Fourteenth
Amendment Due Process claim, asserting that the defendants
deprived her of her money without due process of law when
they did not return the money after she made various inquiries
and did not allow her to challenge the ownership of the money
after her son signed the waiver and stipulation.
As stated above, the plaintiff has attached various documents
as exhibits to the AC, including (1) the search warrant
issued by City Court Judge Kate Rosenthal for plaintiff's
apartment at 112 Fordham Rd. (AC Ex. CM/ECF pp.16-17);
(2) Plaintiff's Civilian Complaint Report (AC Ex. CM/ECF
p.18); a letter to plaintiff from former Chief Fowler (AC
Ex. CM/ECF p.19); a letter to plaintiff from David L.
Chaplin, II, Esq. on behalf of the Citizen Review Board
dated December 2, 2016 (AC Ex. CM/ECF p. 20); a letter
to plaintiff from Kimberly M. Osbeck, a paralegal for the
Onondaga County District Attorney's Office, dated March
6, 2018 (AC Ex. CM/ECF p. 21); a letter to plaintiff from
the Public Integrity Bureau of the New York State Attorney
General's Office (AC Ex. CM/ECF p. 22); an “Application
for Release of Property,” signed by plaintiff on November
2, 2017, together with the unsigned refusal to release
the property because the “money [was] forfeited during
[a] criminal prosecution.” (AC Ex. CM/ECF pp.23-24);
the “Waiver and Stipulation,” signed by Mr. Leslie on
February 28, 2017, relinquishing any rights to the seized
money (AC Ex. CM/ECF pp.25-26); “CNYLEADS Narrative
Supplement[s]” numbers 1-3, including an “offense page”
and a “property supplement,” detailing all the property taken
from the Marcellus St. address. (AC Ex. CM/ECF pp.27-32).
Plaintiff seeks the return of the $40,000.00 that she claims
was taken from her in August of 2016, compensatory damages
for the “Syracuse Police Department trashing Plaintiff's two
bedrooms at 112 Fordham Rd.,” damages for “five hours”
worth of lost income 9 on the day of the search, unspecified
lost income for the day that she had to appear in court, 10
and “punitive” damages for emotional pain and suffering,
including the damages for the delay in purchasing her dream
home. (Id.)
III. Eleventh Amendment/New York State Division of
Parole
A. Legal Standards
*4 The Eleventh Amendment provides that states have
immunity against suits in federal court. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 106 (1984). An action
against state officers in their official capacities, or an action
against an agency of the state, is tantamount to an action
against the state. Yorktown Medical Laboratory v. Perales,
948 F.2d 84, 87 (2d Cir. 1991) (official capacity actions);
Santiago v. New York State Dep't of Correctional Services,
945 F.2d 25, 28 n.1 (2d Cir. 1991) (agencies of the state).
B. Application
In this case, in addition to the individual parole officers who
were allegedly responsible for obtaining the warrant to search
her apartment, plaintiff has named the “N.Y.S. Division
of Parole.” (AC at 1). The Eleventh Amendment prevents
plaintiff from suing the N.Y.S. Division of Parole. Thus, to
the extent that plaintiff seeks to sue the agency separately
from the individual officers, the AC may be dismissed with
prejudice, but as further discussed below, plaintiff may sue
Mark Saben, one of the individuals who allegedly participated
in obtaining the warrant for her home. 11
IV. Syracuse Police Department/Municipal Liability
A. Legal Standards
Under New York law, departments, like the Syracuse
Police Department that are merely administrative arms of a
municipality, do not have a legal identity separate from the
municipality, and may not sue or be sued. Hayes v. County of
Sullivan, Nos. 07-CV-667; 09-CV-2071, 2012 WL 1129373,
at *24 (S.D.N.Y. March 30, 2012) (citing inter alia Hall v. City
of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)).
B. Application
To the extent that plaintiff is suing the Syracuse Police
Department as an entity separate from the individual police
officers who were allegedly involved in obtaining the warrant
for her apartment, plaintiff may not do so. Unlike the State
of New York itself, against which a suit for damages would
be barred by the Eleventh Amendment, the City of Syracuse
could be named instead of the Syracuse Police Department.
However, the municipality itself may only be named as a
defendant in certain circumstances. In Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978), the Supreme Court outlined
the limited circumstances under which a municipality may
be liable under Section 1983. Only when the municipality,
through the execution of its policies, actually deprives an
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individual of his constitutional rights, is it liable for the injury.
Id. at 694. To establish municipal liability, the policy must
actually cause the violation of constitutional rights; it must
be the moving force behind the violation. Id.; Dominguez v.
Beame, 603 F.2d 337, 341 (2d Cir. 1979).
*5 As it is written, the AC makes no claims that would allow
the plaintiff to name the City of Syracuse as a defendant in
this action. Plaintiff essentially complains of a single incident,
during which the officers did not act properly in obtaining a
warrant for her home and did not act properly in executing
the warrant in her case. There is no indication that plaintiff
can assert a policy or custom which would support municipal
liability based on these facts. While plaintiff may not sue the
Syracuse Police Department in any event, and while the court
will not sua sponte replace the Syracuse Police Department
with the City of Syracuse, the court does not rule out that,
upon proper pleading, plaintiff could amend her AC to assert
such a claim against the City of Syracuse.
However, plaintiff is warned that any such facts must
plausibly suggest her claim, and that simply making a
conclusory allegation of a “policy or custom” is insufficient
to assert municipal liability. Sulaymu Bey v. City of New York,
No. 17-CV-3563. 2019 WL 1434597, at *10 (E.D.N.Y. Mar.
29, 2019); Nielsen v. City of Rochester, 58 F. Supp. 3d 268,
277 (W.D.N.Y. 2014) (conclusory allegations which merely
recite the elements for stating a Monell claim are insufficient
to state a claim for municipal liability) (citing inter alia
Genovese v. Town of Southhampton, 92 F. Supp. 2d 8, 25
(E.D.N.Y. 2013)). A single incident, particularly if it involved
individuals below the policy-making, level is insufficient to
state a Monell claim. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.
1998). As discussed below, plaintiff may proceed against the
individual officers who she claims violated her constitutional
rights: Detective Summers, D.P. Proud; and Richard Curran.
V. Prosecutorial Immunity/Personal Involvement
A. Legal Standards
1. Prosecutorial Immunity
Prosecutors enjoy absolute immunity from suit under section
1983 in matters associated with their prosecutorial functions,
regardless of motivation. Dory v. Ryan, 25 F.3d 81, 83
(2d Cir. 1994) (prosecutorial immunity covers virtually all
acts associated with the prosecutor's function, including
conspiracies to present false evidence); Bernard v. County
of Suffolk, 356 F.3d 495 (2d Cir. 2004) (absolute immunity
shields prosecutors from suit pursuant to section 1983 for
their alleged malicious or selective prosecution as well as for
any misconduct in the presentation of evidence to the grand
jury).
Absolute immunity is defeated only when the prosecutor is
engaging in investigative functions. Bernard v. County of
Suffolk, 356 F.3d at 502-503 (citation omitted). The initiation
and pursuit of prosecution, regardless of any alleged illegality,
is protected by absolute prosecutorial immunity. Peay v.
Ajello, 470 F.3d 65, 67-68 (2d Cir. 2006). It has also been held
that a prosecutor is entitled to absolute immunity for his or her
decision not to prosecute, regardless of the motivation for that
decision. Scloss v. Bouse, 876 F.2d 287, 292 (2d Cir. 1989).
2. Personal Involvement
Personal involvement is a prerequisite to the assessment of
damages in a section 1983 case, and respondeat superior
is an inappropriate theory of liability. Richardson v. Goord,
347 F.3d 431, 435 (2d Cir. 2003). In Williams v. Smith, 781
F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed
the various ways in which a defendant can be personally
involved in a constitutional deprivation, and thus be subject
to individual liability.
A supervisory official is personally involved if that official
directly participated in the infraction. Id. The defendant may
have been personally involved if, after learning of a violation
through a report or appeal, he or she failed to remedy the
wrong. Id. Personal involvement may also exist if the official
created a policy or custom under which unconstitutional
practices occurred or allowed such a policy or custom to
continue. Id. Finally, a supervisory official may be personally
involved if he or she were grossly negligent in managing
subordinates who caused the unlawful condition or event. Id.
See also Iqbal v. Hasty, 490 F.3d 143, 152–53 (2d Cir. 2007)
(citing Colon v. Coughlin, 58 F.3d 865, 873) (2d Cir. 1995),
rev'd on other grounds, Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
*6 Some courts have discussed whether all of the Colon
factors are still viable after Ashcroft. See Conklin v. County of
Suffolk, 859 F. Supp. 2d 415, 439 (E.D.N.Y. 2012) (discussing
cases). However, the court in Conklin ultimately determined
that it was unclear whether Colon had been overruled or
limited, and continued to apply the factors outlined in Colon.
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Id. In making this determination, the court in Conklin stated
that “it remains the case that ‘there is no controversy that
allegations that do not satisfy any of the Colon prongs are
insufficient to state a claim against a defendant-supervisor.’
” Id. (quoting Aguilar v. Immigration Customs Enforcement
Div. of the U.S. Dep't of Homeland Sec., 811 F. Supp. 2d
803, 815 (S.D.N.Y. 2011)). See also Jones v. Smith, No.
09-CV-1058, 2015 WL 5750136, at *8 n.6 (N.D.N.Y. Sept.
30, 2015) (discussing the use of the Colon factors absent
definitive guidance from the Second Circuit).
B. Application
Plaintiff has named the Onondaga County District Attorney,
William J. Fitzpatrick, together with one of his Assistant
District Attorneys, Sean Chase. (AC ¶ 3(c)). Plaintiff claims
that she spoke to ADA Chase “right after the seizure,” she
explained to him that the money did not belong to her son,
the money was hers, and she “produced tax returns” for
the last five consecutive years in an effort to show that
she “legally possessed the money.” (AC at 5). She claims
that “[k]nowing this,” ADA Chase told plaintiff that his
office would return the illegally seized money. (Id.) Plaintiff
claims that notwithstanding ADA Chase's statement, he did
not return the money, and allegedly “stalled” plaintiff until
her son signed the waiver of forfeiture document, which
included the total amount of money that was seized from
both residences. (AC at 6). The initiation of civil asset
forfeiture proceedings is a prosecutorial function that has
been afforded absolute immunity. See Byrne v. City of New
York, 736 Fed. App'x 263, 266 (2d Cir. 2018) (Second Circuit
precedent affords absolute immunity to government attorneys
who initiate civil suits) (quoting Spear v. Town of W. Hartford,
954 F.2d 63, 66 (2d Cir. 1992); Mangiafico v. Blumenthal, 471
F.3d 391, 395 (2d Cir. 2006)).
ADA Chase was allegedly handling the forfeiture proceeding,
and even though he did not have to initiate court proceedings
because Mr. Leslie signed the stipulation and waiver, the
document stated that “I have concluded that the District
Attorney would likely establish that the above-mentioned
property is subject to forfeiture pursuant to Article 13-A
[of the NY Civil Practice Law and Rules] and the District
Attorney would likely prevail in such a forfeiture action.” 12
(AC Ex. CM/ECF p.25). This document took the place of
an in-court forfeiture proceeding, which would have been
held pursuant to N.Y. Civ. Prac. L. & R. § 1311 (Forfeiture
Actions). Thus, ADA Chase is entitled to absolute immunity
with respect to his conduct relative to the forfeiture of the
money seized, even if plaintiff claimed that some of the
money belonged to her. 13 This is true whether ADA Chase's
conduct was proper or improper, and whether or not he was
mistaken in obtaining Mr. Leslie's waiver and stipulation of
forfeiture. Thus, to the extent that plaintiff raises due process
violations with respect to her interest in the funds, they must
be dismissed as against ADA Chase.
*7 Plaintiff has not asserted any facts against defendant
Fitzpatrick. 14 He does not appear to have been involved
in any way in obtaining the search warrant for plaintiff's
apartment, in executing the search warrant for plaintiff's
apartment, or in the forfeiture proceedings with respect to
the money seized. Thus, any claims against him individually
would fail for lack of personal involvement. If he had been
personally involved in the forfeiture, he, like ADA Chase,
would be entitled to absolute prosecutorial immunity. 15
Thus, plaintiff's amended complaint may be dismissed
with prejudice as against defendants ADA Chase and DA
Fitzpatrick.
VI. Search and Seizure
A. Legal Standards
“It is well-settled that in cases raising claims under the Fourth
Amendment of unauthorized execution of a search warrant
‘[t]he validity of the warrant must be assessed on the basis
of the information that the officers disclosed, or had a duty
to disclose, to the issuing Magistrate.’ ” Arroyo v. City of
Buffalo, No. 15-CV-753, 2018 WL 4376798, at *3 (W.D.N.Y.
Sept. 13, 2018) (quoting Velardi v. Walsh, 40 F.3d 569, 575
n. 2 (2d Cir. 1994) (internal quotation marks omitted)). A
warrant is not invalid for section 1983 purposes if it is “ ‘based
on seemingly reliable information which is later found to be
erroneous.’ ” Id. (quoting Lewis v. City of Mt. Vernon, N.Y.,
984 F. Supp. 748, 756 (S.D.N.Y. 1997)).
B. Application
Although the court has concerns about the merits of this
action, at this stage of the proceedings, the court finds that
any Fourth Amendment claims that plaintiff may have against
defendants Saben, Summers, Proud, and Curran may survive
initial review. 16 Plaintiff seems to claim that the warrant for
her home was based on false information given the court,
which plaintiff claims was the only basis for the warrant.
While it may be that a close review of the documents provided
with the amended complaint, together with any other evidence
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or argument by defendants in a properly supported dispositive
motion, may show otherwise, the court is not currently in a
position to make factual or other determinations regarding the
validity of the warrant or any other claims that plaintiff may
have regarding the search of her home.
*8 The court also notes that because of the waiver and
stipulation, signed by Mr. Leslie, there was no formal
forfeiture proceeding in New York State Court as provided
in N.Y. Civ. Prac. L. & R. § 1311. Thus, it is unclear how
the plaintiff could have challenged the forfeiture. 17 The
court also makes no findings regarding the validity of any
defenses that the defendants may assert regarding the incident
in question.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
4) is GRANTED, and it is
RECOMMENDED, that the amended complaint (Dkt.
No. 3) be DISMISSED IN ITS ENTIRETY as
against defendants N.Y.S. DIVISION OF PAROLE;
SYRACUSE POLICE DEPARTMENT; WILLIAM J.
FITZPATRICK; AND SEAN CHASE, and it is
RECOMMENDED, that to the extent that the AC may be
read as naming SGT. LLUKACI or PO RIGBY, the AC may
be dismissed WITHOUT PREJUDICE for failure to state a
claim, and it is
RECOMMENDED, that if the District Court adopts
this Recommendation, the case be returned to me
for further proceedings, including an order serving the
remaining defendants: SABEN, SUMMERS, PROUD, and
CURRAN.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health
& Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 5002215
Footnotes
1 When plaintiff filed her original complaint, the case was administratively closed due to plaintiff's failure to
comply with the filing fee requirement. (Dkt. No. 2). Prior to re-filing her motion to proceed IFP, (Dkt. No. 4),
plaintiff also filed an amended complaint, which the court will review as the operative pleading. The case was
re-opened on August 1, 2019. (Dkt. No. 6).
2 Plaintiff numbered the pages of the “Fact” section of the amended complaint at the bottom of the page.
The court will cite to the page numbers contained on the actual document. Plaintiff has attached a series of
documents as exhibits to the amended complaint which she did not number. The court will cite to the plaintiff's
exhibits (“AC Ex.”) with the page number as assigned by the court's electronic filing system (“CM/ECF”).
3 Plaintiff was not present for any of the incidents that she describes in her complaint until she arrived at
her house during the subsequent search of her property. Plaintiff appears to be taking her recitation of
the background facts from the police reports and other documents that she has attached to her amended
complaint. (AC Ex. CM/ECF pp. 16-32). The court is stating the facts as plaintiff has described them in the
amended complaint.
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4 This is the first time that another parole officer was mentioned in plaintiff's statement of facts. The court will
assume that defendant Rigby was at the residence from the beginning, but it is not completely clear from
the papers.
5 Plaintiff does not allege that PO Rigby participated in the search of her apartment.
6 Plaintiff states that the officers were in possession of the door key “prior to their actual possession of the
warrant for 112 Fordham Rd.” (AC at 2).
7 Plaintiff has attached a copy of Mr. Leslie's “Waiver and Stipulation.” (AC Ex. CM/ECF p.25-26). Plaintiff
claims that this document was obtained after she asked for the return of the money several times from the
District Attorney's Office, the Citizen Review Board, and the Syracuse Police Department. (AC at 7). When
she failed to get a “truthful” response, she contacted Feldman, Kramer & Monaco, P.C. (Id.) The document
was sent to the attorneys' office after the firm wrote a letter of inquiry. (Id.)
8 Plaintiff is pro se, and the court must interpret plaintiff's complaint liberally. Sealed Plaintiff v. Sealed
Defendants, 537 F.3d 185, 191 (2d Cir. 2008). The court considers all possible grounds for relief that plaintiff
could be raising. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se papers are interpreted
liberally to raise the strongest arguments suggested therein).
9 Plaintiff states that she works from home, and could not work for the time that the officers were searching
her apartment. (AC at 10).
10 Apparently, on the day that the officers searched plaintiff's apartment, they found a “weed roach” and gave
plaintiff an appearance ticket, which was later dismissed after plaintiff appeared in court. (AC at 10). Plaintiff
seeks lost income for the time that it took to appear in court. (Id.)
11 It is unclear whether plaintiff meant to name PO Rigby as a defendant herein. He is mentioned briefly in the
body of the complaint and was apparently present during the Marcellus St. search, but is not listed in the
caption of the complaint, and plaintiff submitted no proposed summons for PO Rigby. In addition, it does not
appear from the facts as stated by plaintiff that PO Rigby was involved in obtaining the search warrant for
plaintiff's apartment, nor is it even apparent that he was present during the search of plaintiff's apartment.
Thus, plaintiff does not state any claims against PO Rigby, and to the extent that she meant to name him as
a defendant, the AC should be dismissed as against him.
12 Article 13-a is entitled “Proceeds of a Crime -Forfeiture.” N.Y. Civ. Prac. L. & R. Art. 13-a
13 Although not relevant to the court's decision because it is based on absolute immunity of the prosecutor,
regardless of whether Mr. Leslie's assertions in the document were correct, the court notes that plaintiff's
statement herein is contrary to her son's sworn assertion in the document. Plaintiff states that ADA Chase
told plaintiff that they were waiting to hear from Mr. Leslie's attorney regarding whether he was going to
sign the forfeiture document. (AC at 6). Plaintiff claims that her son signed the document “under duress.”
Plaintiff cannot assert any claims regarding her son, and in any event, her son was, by her own statement,
represented by counsel during the matter.
14 Plaintiff requests only damages, including a return of the $40,000.00 as relief in this action. She does not
seem to be asking for any form of injunctive relief. Even though plaintiff asks for a “return” of money, the
Eleventh Amendment does not “recognize a distinction ‘between monetary damages and money in which
plaintiff has a property interest.’ ” Local 851 of Internat'l Broth. of Teamsters v. Thyssen Haniel Logistics, Inc.,
90 F. Supp. 2d 237, 249-50 (E.D.N.Y. 2000) (quoting Yorktown Medical Lab., Inc. v. Perales, 949 F.2d 84,
87-88 (2d Cir. 1991)). The District Attorney could have been the proper party in a declaratory judgment under
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Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
New York State law under N.Y. Civ. Prac. L & R. 1327 (Proceedings to Determine Adverse Claims), which
plaintiff could have filed within six months of the stipulation, signed by Mr. Leslie.
15 To the extent that the complaint could be interpreted as suing either ADA Chase or DA Fitzpatrick in their
“official capacities,” the Eleventh Amendment would bar any such suit. See Blessinger v. City of New York,
No. 17-CV-108, 2017 WL 3841873, at *1-2 (S.D.N.Y. Sept. 1, 2017) (prosecutors are entitled to Eleventh
Amendment immunity when they are acting in their prosecutorial capacity because they are acting as state
officials rather than city or county employees) (citing Peterson v. Tomaselli, 469 F. Supp. 2d 146, 157
(S.D.N.Y. 2007) and Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988) (when prosecuting a criminal matter,
a district attorney in New York State represents the State not the County)).
16 Although plaintiff has included a proposed summons for Sgt. Llukaci, this individual is not listed in the caption
of the AC, nor is he included in the section of the form-AC which lists the individual Syracuse Police Officers.
(AC ¶ 3(c)) for whom she has included identification numbers. In any event, plaintiff's only allegations against
Sgt. Llukaci are that he sent defendants Proud and Summers to Mr. Leslie's Marcellus St. home after the
parole officers found contraband therein. Plaintiff does not allege that he was personally involved in any of
the conduct that she claims violated her constitutional rights. He was not at either residence and was not
involved in obtaining the allegedly invalid warrant. Thus, to the extent that plaintiff is trying to sue Sgt. Llukaci,
the AC may be dismissed as against this defendant.
17 The court does note that section 1311(7) provides that an innocent owner may challenge the forfeiture and
regain the forfeited property if the owner never received notice of the forfeiture. In addition, section 1327
provides for an “interested person” to bring a proceeding to determine adverse claims, even after the forfeiture
action was settled by stipulation. See Tupi Cambios, S.A. v. Morganthau, 48 A.D.2d 278 (1st Dep't 2008). In
Tupi Cambios, the District Attorney was the proper “defendant” in New York State Court.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 101 of 240

Flagg v. NYS Division of Parole, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 4963112
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Laytonia FLAGG, Plaintiff,
v.
NYS DIVISION OF PAROLE; Mark Saben,
Parole Officer; Syracuse Police Dept.; Detective
William Summers, ID#409; D.P. Proud, ID#
0140; Richard Curran, ID# 0066; William
J. Fitzpatrick, Onondaga County, District
Attorney; and Sean Chase, D.A., Defendants.
5:19-CV-886
|
Signed 10/08/2019
Attorneys and Law Firms
Laytonia Flagg, Syracuse, NY, pro se.
DECISION & ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 This pro se action brought pursuant to 42 U.S.C. § 1983
was referred to the Hon. Andrew T. Baxter, United States
Magistrate Judge, for a Report and Recommendation pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In his Order
and Report-Recommendation dated August 15, 2019 (Dkt.
No. 7), Magistrate Judge Baxter grants Plaintiff's application
to proceed in forma pauperis, and examines the sufficiency of
the allegations set forth in the Amended Complaint (“AC”) in
light of 28 U.S.C. § 1915. He recommends that the AC (Dkt.
No. 3) be dismissed in its entirety as against defendants N.Y.S.
Division of Parole, Syracuse Police Department, William J.
Fitzpatrick, and Sean Chase; that to the extent that the AC
may be read as naming Sgt. Llukaci or PO Rigby, the AC be
dismissed without prejudice for failure to state a claim; and
that if the Court adopts these recommendations that the case
be returned to him for further proceedings, including an order
serving the remaining defendants Saben, Summers, Proud,
and Curran. No objections to the Report-Recommendation
have been filed, and the time to do so has expired.
II. DISCUSSION
After examining the record, this Court has determined that the
Order and Report-Recommendation is not subject to attack
for plain error or manifest injustice.
III. CONCLUSION
Accordingly, the Court ACCEPTS and ADOPTS the
recommendations in the Order and Report-Recommendation
(Dkt. No. 7) for the reasons stated therein. Therefore, it is
hereby
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 3)
is DISMISSED IN ITS ENTIRETY as against defendants
N.Y.S. DIVISION OF PAROLE, SYRACUSE POLICE
DEPARTMENT, WILLIAM J. FITZPATRICK, and SEAN
CHASE, and it is further
ORDERED that to the extent the Amended Complaint may
be read as naming SGT. LLUKACI or PO RIGBY, it is
DISMISSED WITHOUT PREJUDICE for failure to state
a claim, and it is further
ORDERED that the case be returned to Magistrate Judge
Baxter for further proceedings, including an order serving the
remaining defendants: SABEN, SUMMERS, PROUD, and
CURRAN.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4963112
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 102 of 240

Gentile v. Republic Tobacco Co., Not Reported in F.Supp. (1995)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1995 WL 743719
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Anthony GENTILE, Plaintiff,
v.
REPUBLIC TOBACCO COMPANY, Defendant.
No. 95-CV-1500 (RSP) (DNH).
|
Dec. 6, 1995.
Attorneys and Law Firms
Anthony Gentile, Binghamton, NY, pro se.
DECISION and ORDER
POOLER, District Judge.
I. Background
*1 Presently before this Court is an application to proceed in
forma pauperis and a civil rights complaint. Plaintiff Anthony
Gentile (“Gentile”) has not paid the partial filing fee required
to maintain this action.
Because Gentile's complaint is without arguable basis in law,
I dismiss it pursuant to 28 U.S.C. § 1915(d) and Rule 5.4(a) of
the Local Rules of Practice of this District as without arguable
basis in law.
In his pro se complaint, Gentile claims that defendant
Republic Tobacco Company (“Republic”) manufactures
a product called TOP tobacco, and that Republic has
negligently failed to put any warning labels on such product
regarding possible health hazards which may be caused by
the use of such product. For a more complete statement of
plaintiff's claims, reference is made to the entire complaint
filed herein.
II. Discussion
Consideration of whether a pro se plaintiff should be
permitted to proceed in forma pauperis is a two-step
process. First, the court must determine whether the plaintiff's
economic status warrants waiver of fees and costs under 28
U.S.C. § 1915(a). If the plaintiff qualifies by economic status,
the court must then consider whether the cause of action
stated in the complaint is frivolous or malicious. Moreman
v. Douglas, 848 F.Supp. 332, 333 (N.D.N.Y. 1994) (Scullin,
J.); Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir.
1983) (per curiam).
I have determined that Gentile's financial status qualifies him
to file or “commence” this action in forma pauperis. 28 U.S.C.
§ 1915(a). I therefore turn to the second inquiry. A court may
“dismiss the proceeding under 28 U.S.C. § 1915(d) if the
court thereafter determines that ... the action is frivolous or
malicious.” Moreman, 848 F.Supp. at 333 (citation omitted).
In determining whether an action is frivolous, the court must
look to see whether the complaint lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319,
325 (1989). The court has the duty to show liberality towards
pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.
1990) (per curiam). In addition, the court should exercise
extreme caution 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). Nonetheless,
the Court has a responsibility to determine that a claim is
not frivolous before permitting a plaintiff to proceed with
an action in forma pauperis. Dismissal of frivolous actions
pursuant to 28 U.S.C. § 1915(d) is appropriate to prevent
abuses of the process of the court, Harkins v. Eldredge, 505
F.2d 802, 804 (8th Cir. 1974), and to discourage the waste
of judicial resources. Neitzke, 490 U.S. at 327. See generally
Moreman, 848 F.Supp. at 334.
Gentile brought this action under 42 U.S.C. § 1983, which
permits individuals to seek redress for alleged violations of
their constitutional rights. See, e.g., Von Ritter v. Heald, No.
91-CV-612, 1994 WL 688306, *3, 1994 U.S.Dist. LEXIS
17698, *8-9 (N.D.N.Y. Nov. 14, 1994) (McAvoy, C.J.).
However, parties may not be held liable under this section
unless it can be established that they have acted under the
color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625,
628 (2d Cir. 1994) (noting state action requirement under §
1983); Wise v. Battistoni, No. 92-Civ-4288, 1992 WL 380914,
*1, 1992 U.S.Dist. LEXIS 18864, *2-3 (S.D.N.Y. Dec. 10,
1992) (same) (citations omitted).
*2 In the present case, Gentile has named Republic as the
sole defendant herein. However, Gentile has not alleged any
nexus between the State of New York and the challenged
actions of Republic. State action is an essential element of any
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 103 of 240

Gentile v. Republic Tobacco Co., Not Reported in F.Supp. (1995)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 1983 claim. See Velaire v. City of Schenectady, 862 F.Supp.
774, 776 (N.D.N.Y. 1994) (McAvoy, C.J.) (citation omitted).
Moreover, the Court notes that Gentile contends that
Republic's failure to warn the public of possible health
hazards was the result of negligence on the part of the
defendant. Complaint at 2. However, it is well settled that
mere negligence is not cognizable under § 1983. See Stevens
v. Pinkney, No. 95-CV-1338, slip op. at 4 (N.D.N.Y. Oct. 25,
1995) (Scullin, J.) (citations omitted).
Because no arguable basis in law supports Gentile's
complaint, I must dismiss it pursuant to 28 U.S.C. § 1915(d).
Neitzke, 490 U.S. at 328.
Accordingly, it is hereby
ORDERED, that leave to proceed or prosecute this action in
forma pauperis is denied, and it is further
ORDERED, that this action is dismissed pursuant to 28
U.S.C. § 1915(d) and Rule 5.4(a) of the Local Rules of
Practice of this District as lacking any arguable basis in law,
and it is further
ORDERED, that the Clerk serve a copy of this Order on the
plaintiff by regular mail.
I further certify that any appeal from this matter would not be
taken in good faith pursuant to 28 U.S.C. § 1915(a).
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 743719
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 104 of 240

Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 1469402
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
M. Eugene GIBBS, Plaintiff,
v.
BANK OF AMERICA, N. A.; Nationstar d/b/a Mr.
Cooper; Barbara Gibbs; United States: Freddie Mac;
Federal Housing Finance Agency (FHFA); Judge
Michael G. Nettles; Alan M. Wilson, SC AG; Chief
Judge Wendy L. Hagenau; Cynthia R. Eadon; McGuire
Woods, LLP; Scott and Corley, P.A; William ‘Toll”
Cosby; Peter Stern, Esq.; Michael Rosenfeld Art
Gallery; Smithsonian Institution; Breon Peace; Nancy
J. Whaley; Merrick B. Garland; Consumer Financial
Protection Bureau; NAACP; Congressional Black
Caucus, U.S. House of Representatives; AI Sharpton;
Rod Rosenstein [USA]; and Does, 1-100, Defendants.
22-CV-00011 (RPK) (LB)
|
Signed 05/10/2022
Attorneys and Law Firms
Eugene M. Gibbs, Buford, GA, Pro Se.
Michael E. Blaine, Winston & Strawn, LLP, New York, NY,
for Defendant Bank of America Bank, N.A.
Charles H. Jeanfreau, Jr., McCalla Raymer Leibert Pierce,
LLC, Iselin, NJ, for Defendant Nationstar.
Christopher Daniel Volpe, United States Attorney's Office
Easten District of New York, Brooklyn, NY, for Defendants
Federal Housing Finance Agency, Chief Judge Wendy L.
Hagenau, Cynthia R. Eadon, Smithsonian Institution, Rod
Rosenstein (USA), Breon S. Peace, Merrick B. Garland,
Consumer Financial Protection Bureau.
Andrew Lindemann, Pro Hac Vice, Lindemann & Davis, P.A.,
Columbia, SC, Joseph P. McNulty, Blick Law LLC, Somerset,
NJ, for Defendants Judge Michael G. Nettles, SC AG Alan
M. Wilson.
Aleksandra Kaplun, McGuireWoods LLP, New York, NY, for
Defendant McGuire Woods, LLP.
Christopher John Seusing, Wood Smith Henning & Berman
LLP, New York, NY, John A. Darminio, Wood, Smith,
Henning & Berman LLP, White Plains, NY, for Defendant
Scott and Corley, P.A.
MEMORANDUM AND ORDER
Rachel P. Kovner, United States District Judge:
*1 Pro se plaintiff M. Eugene Gibbs brings civil claims
under the Racketeer Influenced and Corrupt Organizations
Act (“RICO”) and New York General Business Law (“GBL”)
Section 349, alleging various conspiracies. Mr. Gibbs's wife
brings similar claims as crossclaims. As explained below,
most of these claims are barred because the couple has
unsuccessfully pressed them in prior lawsuits. The remainder
are dismissed because they are frivolous. Mr. Gibbs is advised
that he may be subject to sanctions if he continues to file
repetitive, frivolous, and vexatious lawsuits.
Background
Mr. Gibbs has filed a complaint and an amended complaint
that purports to incorporate his original complaint in its
entirety. See Compl. (Dkt. #1); Am. Compl. (Dkt. #6). The
following facts are taken from the complaint and amended
complaint and are assumed true for purposes of this order.
Mr. Gibbs first alleges a conspiracy to undermine the
Home Affordable Modification Program (“HAMP”) by
Bank of America, Nationstar Mortgage, and various Doe
defendants (collectively, the “HAMP Defendants”). Compl.
2-4. According to Mr. Gibbs, these defendants sought to
subvert the HAMP program by falsely denying that they
had received documents from homeowners and by issuing
false notices claiming that homeowners had failed to submit
required documentation. Id. ¶¶ 15-18, 72-81, 96-109.
Mr. Gibbs alleges that as part of this scheme, Bank of America
mishandled his own attempt to modify his mortgage on his
home in Florence, South Carolina that Mr. Gibbs owned
with his wife, Barbara Gibbs. Id. ¶ 132. He alleges that he
contacted Bank of America in 2009 to seek a modification
of his mortgage loan from Bank of America for that South
Carolina home. Id. ¶¶ 132, 136. According to Mr. Gibbs,
he was given false information and incorrectly told that
his mortgage was not eligible for a modification. Ibid.
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Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Nevertheless, Mr. Gibbs persisted in applying for the HAMP
program, and was eventually told that he could enroll. Id.
¶¶ 137-139. Eventually, a Bank of America representative
told him to send his HAMP application with supporting
documentation to a certain fax number; Mr. Gibbs promptly
did so. Id. ¶ 140. The Bank of America representative later
informed Mr. Gibbs that his documents had been lost and that
he would need to resend them. Id. ¶¶ 143, 145. Mr. Gibbs's
application was subsequently denied due to a failure to submit
the requested documents. Ibid. In November 2012, Bank of
America falsely told Mr. Gibbs that his mortgage was sold to
Nationstar Mortgage when in fact it had been sold to Freddie
Mac. Id. ¶¶ 151-52.
According to Mr. Gibbs, Bank of America's action was
part of a larger conspiracy between the HAMP Defendants’
attorneys, McGuire Woods, LLP, South Carolina's Attorney
General, Alan Wilson, Judge Michael Nettles, Scott and
Corley, P.A., and the HAMP Defendants to bribe the
Consumer Financial Protection Bureau (“CFPB”), the Federal
Housing Finance Agency (“FHFA”), Fannie Mae, and
Freddie Mac to conceal Bank of America's sale of mortgage
notes. Id. ¶¶ 173, 354-356; Am. Compl. ¶ 18.
*2 At any rate, by the time it was sold, Mr. Gibbs's loan
still had not been modified through the HAMP program.
Compl. ¶ 153. Moreover, the failure of Bank of America to
modify Mr. Gibbs's loan put him so far in arrears that his
loan was in default. Id. ¶ 152. Because of this default, the
HAMP Defendants hired McGuire Woods, LLP to litigate a
foreclosure lawsuit against Mr. Gibbs. Id. ¶ 354.
Mr. Gibbs alleges that because of the foreclosure action, his
wife was forced to file bankruptcy. Id. ¶ 360. Mr. Gibbs
also alleges that the HAMP Defendants and McGuire Woods
“acted in concert” with Chief Bankruptcy Judge Wendy
Hagenau of the Bankruptcy Court of the Northern District
of Georgia and her Courtroom Deputy, Cynthia R. Eadon, to
ensure that Mr. Gibbs and his wife lost the bankruptcy action.
Id. ¶¶ 360-64.
Next, Mr. Gibbs alleges that Attorney General Wilson
conspired with attorney Peter Stern, Bill Cosby, the
Smithsonian, and the Michael Rosenfeld Art Gallery
(collectively, the “Art Defendants”) to steal works of art by
black artists. Id. ¶¶ 167, 179, 180, 264, 352. Mr. Gibbs alleges
that the Art Defendants conspired to steal art from the family
of William H. Johnson, Gibbs's former client. Id. ¶ 183. He
further asserts that the Smithsonian received 2,000 pieces of
the stolen artwork and concealed the fact that the artwork was
stolen. Id. ¶ 180.
Mr. Gibbs also alleges that the Reverend Al Sharpton, the
National Association for the Advancement of Colored People
(“NAACP”), and the Congressional Black Causes of the
United States House of Representatives were bribed to remain
silent about this theft, as well as about a “pedophilia ring.”
Am. Compl. ¶¶ 5, 19, 29.
Finally, Mr. Gibbs claims that the Art Defendants conspired
with Rod Rosenstein, Attorney General Wilson, Judge
Nettles, the Justice Department, US Attorney Breon Peace,
and numerous John Doe FBI agents to have Mr. Gibbs
arrested for a crime that never occurred. Compl. ¶¶ 167-68,
170, 351, 353; Am Compl. ¶¶ 2, 11, 23, 25. This appears
to be a reference to Mr. Gibbs's conviction for mailing
threatening communications, in violation of 18 U.S.C. § 876.
See United States v. Gibbs, 185 F. App'x 258 (4th Cir. 2006).
Mr. Gibbs also alleges that those defendants conspired to
transport Mr. Gibbs's medical documents from Connecticut
to South Carolina. Compl. ¶¶ 167-68, 170, 351, 353. Mr.
Gibbs suggests that, due to the actions of defendants, he was
disbarred from the practice of law in South Carolina. Id. ¶
266; see In re Gibbs, 562 S.E.2d 639, 640 (S.C. 2002) (noting
disbarment).
Based on the foregoing allegations, Mr. Gibbs appears to
assert RICO claims against all defendants, as well as a GBL
claim against the Michael Rosenfeld Art Gallery. Compl. ¶¶
157, 328-350, 365-368. Mr. Gibbs seeks to have this case
declared a class action, and requests damages, injunctive
relief, and declaratory relief. Id. at 93-94; Am Compl. 12-14.
Mr. Gibbs has also filed separate motions for a temporary
restraining order, a preliminary injunction, and a declaratory
judgment seeking substantially the same remedies. See Dkt.
##2, 8, 9.
Mr. Gibbs also named his wife, Barbara Gibbs, as a defendant,
Compl. ¶ 24, and suggests that she is also liable for his
RICO claim, id. ¶¶ 339(d), (i), 340. Ms. Gibbs has filed a
crossclaim against Bank of America and McGuire Woods
LLP, incorporating by reference the claims Mr. Gibbs raised
in his complaint and amended complaint. See Notice of “Deft
Gibbs” Cross Claim 1 (Dkt. #41). Bank of America, McGuire
Woods LLP, Michael G. Nettles, and Alan M. Wilson have
filed motions to dismiss. See Dkt. ##23, 30, 74, 75.
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Gibbs v. Bank of America, N. A., Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Standard of Review
*3 Even when a plaintiff has paid the filing fee, a district
court may dismiss a case, sua sponte, if it determines that the
Court lacks subject matter jurisdiction or that the action is
frivolous. Fitzgerald v. First E. Seventh Street Tenants Corp.,
221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam). A district
court may also raise the issues of res judicata and collateral
estoppel sua sponte against a party who has already had notice
and an opportunity to respond to those issues. Curry v. City
of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (citing Doe v.
Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998)); Pino v. Ryan, 49
F.3d 51, 54 (2d Cir. 1995).
While complaints by most pro se plaintiffs are generally
liberally construed, see Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (quotations and citations omitted),
plaintiff's complaint is not entitled to special solicitude
because plaintiff is a disbarred attorney. United States v.
Pierce, 649 F. App'x 117, 118 (2d Cir. 2016); Mitchell v. Con
Edison, 531 F. App'x 140, 141 (2d Cir. 2013); Allegrino v.
Ruskin Moscou Faltischek, P.C., No. 19-CV-08900 (PMH),
2021 WL 429121, at *5 (S.D.N.Y. Feb. 8, 2021); see also In
re Gibbs, 562 S.E.2d at 648 (noting Mr. Gibbs's disbarment).
Discussion
Mr. Gibbs's amended complaint is dismissed, as are Ms.
Gibbs's crossclaims. Their RICO claims against Bank of
America and Nationstar are barred by res judicata and
collateral estoppel. Mr. Gibbs's claims relating to the theft of
artwork, his disbarment, and his arrest are barred by collateral
estoppel. Finally, the remainder of Mr. Gibbs's claims are
frivolous, and Mr. Gibbs is advised that he may be subject to
sanctions if he continues filing similar claims.
I. The RICO Claims Against Bank of America and
Nationstar are Barred by Res Judicata.
Res judicata bars Mr. and Ms. Gibbs's RICO claims (and
crossclaims) against Bank of America and Nationstar. Res
judicata bars subsequent litigation if: “(1) the previous action
involved an adjudication on the merits; (2) the previous action
involved the [parties] or those in privity with them; [and] (3)
the claims asserted in the subsequent action were, or could
have been, raised in the prior action.” Monahan v. N.Y.C.
Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000) (citations
omitted). “Even claims based upon different legal theories
are barred provided they arise from the same transaction or
occurrence.” L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc.,
198 F.3d 85, 88 (2d Cir. 1999) (citation omitted).
As Mr. Gibbs and his wife shouldn't be surprised to learn,
their claims are barred by res judicata. Both Mr. Gibbs and his
wife already brought a RICO claim in the District of Colorado
in 2015 against Bank of America and Nationstar. See Gibbs-
Squires v. Urb. Settlement Servs., No. 14-CV-00488 (MSK)
(CBS), 2015 WL 196217, at *5-6 (D. Colo. Jan. 14, 2015),
aff'd, 623 F. App'x 917 (10th Cir. 2015). That lawsuit, like
this one, alleged that those entities and others conspired to
undermine the HAMP program and that Bank of America's
handling of plaintiff's mortgage modification request for his
South Carolina home was part of this conspiracy. Id. at *3.
The court determined that Mr. and Ms. Gibbs failed to state a
claim. Id. at *5-6. Two years later, Mr. and Ms. Gibbs again
attempted to bring RICO claims against Bank of America
and Nationstar—this time in the District of Maryland. See
Gibbs v. Bank of Am., N.A., No. 16-CV-2855 (GJH), 2017
WL 1214408, at *6 (D. Md. Mar. 31, 2017). Finding that
the allegations regarding defendants’ efforts to undermine
the HAMP program were the same as those brought in the
Colorado litigation, the court found that res judicata barred
both plaintiffs’ RICO claims against Bank of America and
Nationstar. Id. at *5-7. So too here. Mr. and Ms. Gibbs’ RICO
claims against Bank of America and Nationstar arise from
the same transactions as their claims against those companies
in the District of Colorado and District of Maryland. And
these RICO claims were raised before, in those prior suits.
Accordingly, these claims are barred.
II. The RICO Claims Against the Remaining
Defendants are Barred by Collateral Estoppel.
*4 Mr. Gibbs and his wife are collaterally estopped from
bringing their claims related to the HAMP program and
the foreclosure of their home. “Collateral estoppel, or issue
preclusion, prevents parties or their privies from relitigating
in a subsequent action an issue of fact or law that was fully
and fairly litigated in a prior proceeding.” Marvel Characters,
Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002) (citations
omitted). The doctrine “applies when: ‘(1) the identical issue
was raised in a previous proceeding; (2) the issue was actually
litigated and decided in the previous proceeding; (3) the
party had a full and fair opportunity to litigate the issue;
and (4) the resolution of the issue was necessary to support
a valid and final judgment on the merits.’ ” Id. at 288-89
(citation omitted). Plaintiffs can be estopped from litigating
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issues that they fully and fairly litigated in a prior proceeding
even against defendants not named in the prior suit. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329 (1979)
(explaining that collateral estoppel principles “preclude[ ] a
plaintiff from relitigating identical issues by merely switching
adversaries”); Blonder-Tongue Labs., Inc. v. Univ. of Ill.
Found., 402 U.S. 313, 329 (1971) (“Permitting repeated
litigation of the same issues as long as the supply of unrelated
defendants holds out reflects either the aura of the gaming
table or a lack of discipline and of disinterestedness on the part
of the lower courts.”) (citation and internal quotation marks
omitted); see also Austin v. Downs, Rachlin & Martin, 114 F.
App'x 21, 22 (2d Cir. 2004).
The conditions for collateral estoppel are met with respect
to Mr. and Ms. Gibbs’ RICO claims relating to the HAMP
program. In prior litigation, the couple brought RICO claims
related to the HAMP Defendants’ supposed HAMP program
racketeering activity, as well as their efforts to bribe state
and federal officials to conceal that activity. See Gibbs, 2017
WL 1214408, at *8-10; Gibbs-Squires 2015 WL 196217, at
*4-6. Both courts dismissed these claims with prejudice. See
Gibbs, 2017 WL 1214408, at *8-10; Gibbs-Squires 2015 WL
196217, at *4-6. Mr. Gibbs and his wife now supplement these
claims by adding new defendants. Compl. ¶¶ 173, 354-356,
360-64; Am. Compl. ¶ 18. But because they already had an
opportunity to fully and fairly litigate these issues, and a
final judgment was entered against them, they are collaterally
estopped from relitigating these claims.
III. Mr. Gibbs's RICO Claims Relating to Art Theft,
His Disbarment, and His Arrest are Collaterally
Estopped.
Collateral estoppel also bars Mr. Gibbs's claims against
the Art Defendants. Mr. Gibbs already litigated his RICO
claims arising out of the alleged stolen artwork, his criminal
prosecution, and his disbarment in the Middle District of
Florida. See Gibbs v. United States, 865 F. Supp. 2d 1127,
1142-46 (M.D. Fla. 2012), aff'd, 517 F. App'x 664 (11th Cir.
2013). The court dismissed these claims with prejudice. Ibid.
Mr. Gibbs tried to relitigate the stolen artwork issue again
several years later, in a suit brought in the Eastern District
of Pennsylvania. Gibbs-Squires v. Cosby, No. 16-CV-768
(MSG), 2017 WL 5515916, at *1 (E.D. Pa. Mar. 7, 2017). His
claims were found to be collaterally estopped. Id. at *4-5. Mr.
Gibbs now supplements his claims by adding new defendants.
But he remains collaterally estopped from re-litigating these
claims because he already had a full and fair opportunity to
litigate them in the Middle District of Florida, which found
his claims lacking.
IV. Mr. Gibbs's Remaining Claims are Frivolous.
Mr. Gibbs's remaining claims are frivolous. “A court may
dismiss a claim as ‘factually frivolous’ if the sufficiently
well-pleaded facts are ‘clearly baseless’—that is, if they are
‘fanciful,’ ‘fantastic,’ or ‘delusional.’ ” Gallop v. Cheney, 642
F.3d 364, 368 (2d Cir. 2011) (quoting Denton v. Hernandez,
504 U.S. 25, 32-33 (1992)). Mr. Gibbs's remaining allegations
easily satisfy this standard. Gibbs alleges a wide-ranging
conspiracy whereby South Carolina's Attorney General, a
federal judge, two separate law firms, and the HAMP
Defendants bribed two federal agencies as well as Fannie
Mae and Freddie Mac to conceal changes to his and other
homeowners’ loan servicer. Compl. ¶¶ 173, 354-356; Am.
Compl. ¶ 18. But that's not all. The HAMP Defendants, a law
firm, a federal bankruptcy judge, and her courtroom deputy
somehow conspired to ensure that Mr. Gibbs and his wife lost
their bankruptcy action. Id. ¶¶ 360-64. In the same breath,
Mr. Gibbs claims that Reverend Al Sharpton, the NAACP,
and the Black Caucus were bribed to remain silent about the
Smithsonian's theft of thousands of paintings by black artists
and a “pedophilia ring.” Am. Compl. ¶¶ 5, 19, 29. “[T]he
courts have no obligation to entertain pure speculation and
conjecture.” Gallop, 642 F.3d at 368.
*5 Additionally, a “complaint is frivolous when, among
other things, it ‘is based on an indisputably meritless legal
theory,’ i.e., it ‘lacks an arguable basis in law.’ ” Tapia-Ortiz
v. Winter, 185 F.3d 8, 11 (2d Cir. 1999) (quoting Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)
(citation and internal quotation marks omitted)). In Tapia-
Ortiz, the Second Circuit dismissed as frivolous a RICO
conspiracy claim alleging that twenty judges, the Second
Circuit's staff attorneys, a district judge, and an Assistant
United States Attorney engaged in a RICO conspiracy. Id.
at 9-11. The Second Circuit found that the claim lacked
even an arguable basis in the law. Id. at 11. The same result
follows here. Although he spends nearly two-hundred pages
alleging various RICO conspiracies, Mr. Gibbs alleges no
facts establishing how the government defendants joined the
criminal enterprises; when the conspiracies began; what roles
each of the alleged co-conspirators played; how precisely the
conspiracies operated; or how he was negatively impacted by
these activities. These claims are therefore frivolous. See ibid.
Mr. Gibbs is hereby informed that the Court will not tolerate
repetitive, frivolous and vexatious litigation and that he may
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be subject to a filing injunction in this Court if he continues
to file similar actions. See Lau v. Meddaugh, 229 F.3d 121,
123 (2d Cir. 2000) (per curiam); Hong Mai Sa v. Doe, 406
F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of
filing vexatious, harassing or duplicative lawsuits, courts may
impose sanctions, including restrictions on future access to
the judicial system.”) (citations and internal quotation marks
omitted).
Conclusion
Because the defects in Mr. Gibbs's claims (and his wife's
crossclaims) are “substantive” and cannot be cured with
“better pleading,” leave to amend the complaint is denied.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see
Ashmore v. Prus, 510 F. App'x 47, 49 (2d Cir. 2013) (summary
order) (noting that leave to amend is futile where barriers
to relief cannot be surmounted by reframing the complaint).
Mr. Gibbs's motions for a temporary restraining order, a
preliminary injunction, and a declaratory judgment are denied
as moot. The Clerk of Court is directed to enter judgment
dismissing the action.
Although Mr. Gibbs paid the filing fee to bring the action, the
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
in forma pauperis appeal from this order would not be taken
in good faith. See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 1469402
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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 382055
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Angel GONZALEZ, Plaintiff,
v.
THE CITY OF NEW YORK; New York
City Department of Correction; Warden, Otis
Bantum Correctional Center; Corrections
Officer Summer, Shield No. 11856, Defendants.
No. 97 CIV. 2246(MGC).
|
July 9, 1998.
MEMORANDUM OPINION AND ORDER
CEDARBAUM, J.
*1 Plaintiff pro se, Angel Gonzalez, brings this action under
42 U.S.C. § 1983. He alleges that while in the custody of the
New York City Department of Correction (“NYC DOC”), he
was beaten by Correction Officer Summer. This is a motion
to dismiss the complaint as against the City of New York,
Warden of Otis Bantum Correctional Center (the “Warden”)
and NYC DOC pursuant to Fed.R.Civ.P. 12(b)(6).
On April 22, 1998, a letter was sent to Gonzalez directing him
to respond to this motion by June 22, 1998. The letter advised
Gonzalez that if he did not respond by June 22, the motion
would be decided on the basis of the existing record, and the
City of New York, New York City Department of Correction
and Warden of Otis Bantum Correctional Facility might be
dismissed from the action. Gonzalez has not responded. For
the reasons that follow, the motion to dismiss is granted.
BACKGROUND
The complaint alleges that plaintiff was assaulted by
Correction Officer Summer while he was incarcerated at Otis
Bantum Correctional Center on Rikers Island, New York City.
According to the complaint, as plaintiff was coming into the
facility's recreation area from the “yard,” he passed through
a metal detector which registered that he had a metal object
on his person. Defendant Summer then swore at plaintiff
and told him to hurry up. As plaintiff passed through the
metal detector a second time, he said to Summer, “You don't
have to act like that!” Summer then struck plaintiff in the
face repeatedly until he lost consciousness. According to the
complaint, when plaintiff regained consciousness, he found
Summer “still abusing” him and swearing at him. Plaintiff
left, found his way back to the housing area and felt as if he
“had been hit with a bat to the face .” Plaintiff alleges that
he suffered a cut under his left eye, serious swelling of his
face and head, and lacerations of his scalp. He alleges that
black and blue shadows still show under his eyes, and that he
suffers from headaches. He seeks damages in the amount of
three million dollars.
DISCUSSION
On a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations of the complaint must be accepted as
true, Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122
L.Ed.2d 517 (1993), and all reasonable inferences must be
drawn in favor of the plaintiff, Bolt Elec., Inc. v. City of New
York, 53 F.3d 465, 469 (2d Cir.1995). A complaint should not
be dismissed “unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
1. NYC DOC and the City of New York
Defendants argue that Gonzalez cannot assert a claim against
NYC DOC based on any legal theory because it is not a suable
entity. They also contend that the complaint fails to state a
claim against the City of New York because it does not allege
that the actions complained of were the result of an official
policy, custom or practice of the City of New York.
*2 In addition to the defect that NYC DOC is an agency
of the City of New York that is not a suable entity, 1 the
complaint fails to state a claim upon which relief can be
granted against either NYC DOC or the City. To state a claim
under § 1983, a plaintiff must allege that a person acting
under color of state law deprived him of a right, privilege or
immunity guaranteed by federal law. To state a claim against
a municipality, a plaintiff must also plead that the wrongful
action alleged was the result of an official policy, custom
or practice of the municipality, and that that policy caused
plaintiff's injury. Monell v. Department of Social Services, 436
U.S. 658, 690–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
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Gonzalez v. City of New York, Not Reported in F.Supp. (1998)
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The complaint, however, alleges no official policy, custom or
practice resulting in injury to Gonzalez. Indeed, the complaint
does not even mention the City of New York or NYC DOC,
except to the extent that they are listed as parties.
2. Warden of Otis Bantum Correctional Center
Defendants also urge dismissal of the complaint against the
Warden, on the ground that there are no allegations in the
complaint concerning that defendant. When an individual
defendant is sued under § 1983, that defendant's personal
involvement in the alleged constitutional deprivation is a
prerequisite to an award of damages. See Wright v. Smith,
21 F.3d 496, 501 (2d Cir.1994). For a claim under § 1983,
a complaint sufficiently alleges personal involvement of a
supervisory official if it alleges one of the following: (a) direct
participation in the alleged wrong; (b) failure to remedy a
violation after receiving notice of it; (c) creation of a policy or
custom under which unconstitutional practices occur; or, (d)
grossly negligent management of subordinates who cause the
constitutional violation. See Black v. Coughlin, 76 F.3d 72, 74
(2d Cir.1996).
A § 1983 claim against a municipal official in his official
capacity is treated as a claim against the municipality itself.
Brandon v. Holt, 469 U.S. 464, 471–72, 105 S.Ct. 873, 83
L.Ed.2d 878 (1985). As noted above, § 1983 imposes liability
on a municipality only when the action that is alleged to be
unconstitutional implements or executes an official policy or
custom. See Monell, 436 U.S. at 690–91.
From the complaint, it is unclear whether the warden is being
sued in his personal or official capacity. However, pro se
complaints, if possible, should be construed as asserting both
claims. Jackson v. Dinkins, 1995 WL 657075, at *1 (S.D.N.Y.
Nov.8, 1995) (citing Frank v. Relin, 1 F.3d 1317, 1326 (2d
Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d
569 (1993)).
The complaint does not allege the personal involvement of
the Warden. The complaint mentions the Warden only in the
caption, and fails to allege any act or omission by that party.
See Crown v. Wagenstein, 1998 WL 118169, at *1 (S.D.N.Y.
Mar.16, 1998) (mere inclusion of warden's name in complaint
insufficient to allege personal involvement); Taylor v. City of
New York, 953 F.Supp. 95, 99 (S.D.N.Y.1997) (same).
*3 Finally, to the extent that the complaint asserts an official-
capacity claim against the Warden, the claim fails for the
same reason that the claims against the City of New York and
NYC DOC fail. There are no allegations of any municipal
policy or custom that the Warden was executing, or that such a
policy or custom caused the alleged violation of the plaintiff's
constitutional rights, as required by Monell. The absence of
any such allegation precludes a finding of liability against the
Warden in his official capacity.
Accordingly, the complaint fails to the state a claim against
the Warden upon which relief can be granted.
CONCLUSION
For the foregoing reasons, the motion to dismiss the complaint
as against defendants the City of New York, New York
City Department of Correction, and Warden of Otis Bantum
Correctional Facility is granted.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1998 WL 382055
Footnotes
1 Defendants correctly point out that New York City agencies, such as NYC DOC, are organizational
subdivisions of the City of New York lacking independent legal existence and are not themselves subject to
suit. See, e.g., Adams v. Galletta, 966 F.Supp. 210, 212 (S.D.N.Y.1997) (“where a plaintiff has named the
Department of Corrections as a defendant, he has sued a non-suable entity”).
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 1923236
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Milan HALL, Plaintiff,
v.
CLINTON COUNTY, Defendant.
8:18-CV-1405 (GTS/CFH)
|
Signed 04/21/2020
Attorneys and Law Firms
MILAN HALL, Plaintiff, Pro Se, 36 Bell Road, Chazy, NY
12921.
OF COUNSEL: THOMAS K. MURPHY, ESQ., MURPHY
BURNS LLP, Counsel for Defendant, 407 Albany Shaker
Road, Loudonville, NY 12211.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se civil rights
action filed by Milan Hall (“Plaintiff”) against Clinton County
(“Defendant”), is Defendant's motion to dismiss Plaintiff's
Amended Complaint for failure to state a claim upon which
relief can be granted. (Dkt. No. 13.) For the reasons set forth
below, Defendant's motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Amended Complaint
Plaintiff filed an Amended Complaint in accordance with this
Court's Decision and Order of August 26, 2019. (Dkt. No.
11 [Decision and Order filed Aug. 26, 2019].) Generally, in
his Amended Complaint, Plaintiff alleges that, “commencing
on the 28 th day of June 2012,” Defendant has violated his
rights in five ways by using his marriage license as proof of
paternity: (1) Defendant has stripped him of his status as a
man and termed him a non-custodial parent and obligor; (2)
Defendant has wrongfully denied him the right to raise his
child as he pleases and to do so in privacy; (3) Defendant
has damaged his reputation in his community; (4) Defendant
has denied him the right to a trial by jury before ordering
him to pay child support; and (5) Defendant denied him
his right to due process when it failed to disclose to him
the legal consequences that would result from the signing
of his marriage license. (Dkt. No. 12 [Pl.’s Am. Compl.].)
Generally, based on these factual allegations, and construed
with special liberality, Plaintiff's Amended Complaint claims
that Defendant violated his rights to due process under the
Fifth and Fourteenth Amendments, and his right to a jury trial
under the Sixth and/or Seventh Amendments to the United
States Constitution and 42 U.S.C. § 1983. (Id.)
B. Parties’ Briefing on Defendant's Motion to Dismiss
1. Defendant's Memorandum of Law
Generally, in its motion to dismiss Plaintiff's Amended
Complaint, Defendant makes two arguments. (Dkt. No. 13,
Attach. 2 [Def.’s Mem. of Law].) First, Defendant argues that
Plaintiff's Amended Complaint fails to state a claim upon
which relief can be granted. (Id. at 7-8.) More specifically,
Defendant argues that Plaintiff has not pled facts plausibly
suggesting the existence of any municipal custom, policy, or
practice that caused his alleged constitutional deprivations,
but rather has merely alleged that New York's valid paternity
laws are not fair. (Id.) Defendant also argues that Plaintiff
is essentially seeking a nullification of a New York State
Family Court Order of Child Support against him, triggering
the domestic relations exception to federal court jurisdiction,
and thus, even if the Court were to find that Plaintiff has
stated a claim, the Court would not possess subject-matter
jurisdiction over any such claim. (Id.)
Second, Defendant argues that, based on the Amended
Complaint's own factual allegations, Plaintiff's claims are
untimely as a matter of law. (Id. at 8-9.) More specifically,
Defendant argues that the statute of limitations for personal
injury actions in New York is three years from when the
plaintiff knew or had reason to know of the injury, and that the
Amended Complaint expressly alleges that the child support
proceedings were initiated on June 28, 2012; yet Plaintiff did
not file this lawsuit until December 2018. (Id.) Defendant
argues that any allegations that the injury is ongoing (because
Plaintiff is under a continuous obligation to pay child support)
would not render his claim timely under the continuing
violation doctrine because, based on the factual allegations of
the Amended Complaint, he was (or reasonably should have
been) aware of that injury as early as June 28, 2012. (Id.)
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Hall v. Clinton County, Not Reported in Fed. Supp. (2020)
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2. Plaintiff's Opposition Memorandum of Law
*2 Generally, in opposition to Defendant's motion, Plaintiff
makes four arguments. (Dkt. No. 15, at 4-5 [Pl.’s Opp'n
Mem. of Law].) First, Plaintiff argues that he is not alleging
that Defendant failed to inform him of the responsibilities
that could possibly result from children born during his
marriage at the time he signed the marriage license, but
that “Defendants failed to employ Due Process Safeguards
to ensure that the rights of the Plaintiff were protected,
and as a result the Plaintiff was defaulted into a Title IV-
D case from which he now suffers the deprivation of his
inherent rights”; however, he concedes that “[t]his deprivation
is extrinsically linked to the Defendants failure to employ
due process safeguards when presenting the Plaintiff with a
marriage certificate, the legal instrument that would later be
used to default the Plaintiff into a Title IV-D case.” (Id. at 4.)
Pointing to a federal statute requiring a state to have a civil
process for voluntarily acknowledging paternity that includes
the provision of due process and an explanation by the state of
the individual's rights and responsibilities of acknowledging
paternity, he appears to argue that Defendant violated his
right to due process by summoning him to a “fact finding”
hearing before a “Family Court Support Magistrate” because
the Federal Manual of Child Support requires that such a
proceeding should not have been presided over by “a judge
of the court.” (Id.)
Second, Plaintiff argues that he is not merely asking the Court
to overturn the child support order as Defendant suggests,
but is seeking a remedy for the violation of his constitutional
rights. (Id. at 4-5.)
Third, Plaintiff argues that it is a crime to deprive an
individual of his or her constitutional rights. (Id. at 5.)
Fourth, Plaintiff argues that his claims should not be found to
be untimely because he promptly filed his original Complaint
in 2018 as soon as he discovered that his rights had been
violated. (Id. at 5.)
II. GOVERNING LEGAL STANDARDS
It has long been understood that a dismissal for failure to
state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549
F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.)
(adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
some elaboration regarding that ground is appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed. R. Civ. P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d
at 212 n.20 (citing Supreme Court case). On the other hand,
the Supreme Court has held that, by requiring the above-
described “showing,” the pleading standard under Fed. R.
Civ. P. 8(a)(2) requires that the pleading contain a statement
that “give[s] the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Jackson, 549 F.
Supp. 2d at 212 n.17 (citing Supreme Court cases) (emphasis
added).
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212 n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
*3 Most notably, in Bell Atlantic Corp. v. Twombly, the
Supreme Court reversed an appellate decision holding that
a complaint had stated an actionable antitrust claim under
15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). In doing so, the Court “retire[d]” the famous
statement by the Court in Conley v. Gibson, 355 U.S. 41,
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45-46 (1957), that “a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Twombly, 127 S. Ct. at 560-61,
577. Rather than turn on the conceivability of an actionable
claim, the Court clarified, the “fair notice” standard turns on
the plausibility of an actionable claim. Id. at 555-70. The
Court explained that, while this does not mean that a pleading
need “set out in detail the facts upon which [the claim is
based],” it does mean that the pleading must contain at least
“some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief
above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[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, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.
Ct. at 1950 (internal quotation marks and citations omitted).
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Iqbal,
129 S. Ct. at 1949 (internal citations and alterations omitted).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citations omitted).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 1
III. ANALYSIS
*4 After carefully considering whether Plaintiff's Amended
Complaint should be dismissed, the Court answers this
question in the affirmative for the reasons stated in
Defendant's memorandum of law. (Dkt. No. 13, Attach. 2, at
7-9 [Def.’s Mem. of Law].) To those reasons, the Court adds
the following analysis.
As an initial matter, the Court finds that Plaintiff's claims,
to the extent that they seek an invalidation of a Family
Court child support order, are barred by the Rooker-Feldman
doctrine. Under the Rooker-Feldman doctrine, a federal court
lacks subject-matter jurisdiction where the following four
elements are met: (1) the plaintiff has lost in state court;
(2) the plaintiff complains of injuries caused by the state
court judgment; (3) the plaintiff invites the district court
to review and reject the state court judgment; and (4) the
state court judgment was rendered before the district court
proceedings commenced. Ganiyu v. Lopez, 19-CV-11605,
2020 WL 1467356, at *2 (S.D.N.Y. Mar. 25, 2020) (citing
Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85
[2d Cir. 2005]). It is evident from the Amended Complaint
that Plaintiff received a child support order against him, that
he now complains that the proceedings that resulted in that
order caused his alleged constitutional injuries, and that the
child support order was rendered before he commenced this
action. Additionally, although Plaintiff frames his argument
in terms of constitutional violations and inadequacies in the
proceedings underlying the support order, such arguments
amount to little more than a request for this Court to assess
whether the Family Court's reliance on the marriage license to
establish paternity was correct, something which this Court is
not permitted to do. See Kramer v. Dane, 17-CV-5253, 2018
WL 4489284, at *3 (E.D.N.Y. Sept. 19, 2018) (“[T]he fact that
plaintiffs assert that their constitutional rights were violated
during the state court proceedings does not except their claims
from the Rooker-Feldman doctrine.”); Davis v. Westchester
Cnty. Family Court, 16-CV-9487, 2017 WL 4311039, at *8
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(S.D.N.Y. Sept. 26, 2017) (finding “[t]he fact that Plaintiff is
challenging the constitutional adequacy of the proceedings is
of no help to him” in precluding application of the Rooker-
Feldman doctrine to his claims) (collecting cases). 2
*5 To the extent that Plaintiff seeks entitlement to relief
beyond a nullification of the child support order that would be
excepted from jurisdiction by the Rooker-Feldman doctrine,
the Court also finds that Plaintiff's claims pursuant to 42
U.S.C. § 1983 fail under Fed. R. Civ. P. 12(b)(6) as time-
barred. Plaintiff attached to the Amended Complaint a copy
of the Family Court's summons to a fact-finding hearing to
be held on July 30, 2012, before Support Magistrate Michael
J. Howley, and a copy of the Petition for Child Support filed
against Plaintiff that was the basis for that hearing. (Dkt.
No. 12, Attach. 1.) The Amended Complaint alleges that it
was the commencement of the proceedings against Plaintiff
through this petition in June 2012 that caused the deprivation
of his rights. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) The
Supreme Court has held that, “[b]ecause § 1983 claims are
best characterized as personal injury actions ... a State's
personal injury statute of limitations should be applied in
all § 1983 claims.” Owens v. Okure, 488 U.S. 235, 240-41
(1989). The Supreme Court found in particular that New
York's general or residual statute related to personal injury
actions should be applied, which sets a three-year statute of
limitations. Owens, 488 U.S. at 249-50; accord, Phillips v.
City of New York, 304 F. Supp. 3d 305, 311 (E.D.N.Y. 2018).
Such statute of limitations begins “when a plaintiff has a
complete and present cause of action, that is when the plaintiff
can file suit and obtain relief,” or, in other words, “when the
wrongful act or omission results in damages, ... and once the
plaintiff knows or has reason to know of the injury which
is the basis of his action.” McDonough v. Smith, 898 F.3d
259, 265 (2d Cir. 2018) rev'd on other grounds McDonough
v. Smith, 139 S.Ct. 2149 (2019).
In this case, Plaintiff acknowledges in his Amended
Complaint that his alleged constitutional harms occurred as
a result of the child support proceedings against him in late
June 2012. (Dkt. No. 12, at 5 [Pl.’s Am. Compl.].) It is
therefore reasonable to find that Plaintiff knew or should have
known of the proceedings against him and the child support
order at the time those events occurred in 2012. Of note,
Plaintiff does not allege that he was never informed of either
the proceedings against him or of the child support order
itself until a later time. Nonetheless, Plaintiff did not file his
initial Complaint in this action until December 3, 2018, more
than six years later. (Dkt. No. 1 [Pl.’s Compl.].) Although
Plaintiff argues in his opposition memorandum of law that he
“promptly filed a complaint with the Federal District Court as
soon as he discovered his rights had indeed been violated,” he
offers no explanation in either the Amended Complaint or his
opposition memorandum of law as to why he seemingly did
not know of the alleged constitutional violations until 2018.
(Dkt. No. 15, at 5 [Pl.’s Opp'n Mem. of Law].) Additionally, it
does not matter when Plaintiff actually discovered a violation.
The relevant consideration is when he knew or had reason to
know of the alleged injury, and without any factual allegation
that Plaintiff was somehow left in the dark for six years
about the basis for the child support proceedings and order
against him (despite the factual statement in the order that
the proceeding against Plaintiff was authorized because he
and the child's mother had gotten married on July 24, 2010),
the Court cannot find that he has alleged facts plausibly
suggesting that he did not have reason to know of the alleged
injury as long ago as June of 2012. As a result, the Court finds
that Plaintiff's claims are barred by the statute of limitations.
The Court also finds that tolling is not warranted under
the circumstances alleged. Although the Second Circuit
recognizes the continuing violation doctrine, it has qualified
that the doctrine applies only to claims “composed of a
series of separate acts that collectively constitute one unlawful
practice,” or “claims that by their nature accrue only after
the plaintiff has been subjected to some threshold amount
of mistreatment.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d
Cir. 2015). Although Plaintiff alleges that the violations of
his rights “continue to this day” because he is still subject to
the child support order, the fact that he continues to suffer an
ongoing injury does not bring his claim under the auspices
of the continuing violation doctrine. In other words, each
payment Plaintiff is required to make under the child support
order is not a new and separate act and injury, but merely a
consequence of the initial act, namely, the proceedings and
the issuance of the child support order in 2012. Plaintiff had
a fully formed claim upon the occurrence of the relevant
proceedings and the issuance of the child support order. The
Court therefore declines to find that the continuing violation
doctrine applies to Plaintiff's claims, and finds instead that
there is no other apparent basis for tolling the statute of
limitations. Plaintiff's claims pursuant to 42 U.S.C. § 1983 are
therefore time-barred and must be dismissed.
*6 In the alternative to the finding that Plaintiff's claims are
time-barred and/or covered by the Rooker-Feldman doctrine,
the Court finds that he has not alleged facts plausibly stating
any claim upon which relief can be granted. As an initial
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matter, Defendant is correct that Plaintiff has again failed
to allege any facts plausibly suggesting a municipal custom,
policy, or practice to merit holding Defendant liable for the
alleged constitutional violations. The only apparent policy
identified by Plaintiff is the policy of allowing use of a
marriage license to create a presumption of paternity. (Dkt.
No. 12, at 5 [Pl.’s Am. Compl.].) However, as Defendant
argues, this “policy” is in fact a long-standing part of New
York common law, not merely a practice or rule put in
place by Defendant or the Clinton County Family Court.
See In re Findlay, 253 N.Y. 1, 6-7 (N.Y. 1930) (discussing
the presumption of legitimacy). Notably, Plaintiff has not
alleged facts plausibly suggesting that Defendant had a policy
of disallowing rebuttal of the presumption of legitimacy or
any other action of that nature that would have prevented
Plaintiff from providing evidence to rebut that presumption.
As a result, Plaintiff has not alleged facts plausibly suggesting
that the alleged constitutional violations were a result of any
policy imposed by Defendant, and the Court therefore finds
that Defendant cannot be held liable for the claims asserted
against it.
Even if Plaintiff had alleged facts plausibly suggesting the
existence of a municipal custom, policy, or practice, the Court
finds that Plaintiff has not stated a claim upon which relief
can be granted. Many of the claims asserted by Plaintiff
(i.e., that Defendant has stripped him of his status as a man,
violated his right to privacy, violated his right to raise his
child as he pleases, violated his right to trial by jury, and
defamed him) are either not facially viable legal claims under
the circumstances or are so vaguely asserted (i.e., without
sufficient supporting factual allegations) that they cannot be
found to plausibly state a claim upon which relief can be
granted. The Court therefore finds little need to discuss these
claims in any detail, but finds that they must be dismissed.
With regard to Plaintiff's due process claim, and particularly
Plaintiff's argument that Defendant's acceptance of the
marriage license as proof of paternity was a violation of
his right to due process, as the Court has previously found,
Plaintiff has not alleged facts plausibly suggesting that he
was denied the opportunity to present counter-evidence to
overcome the presumption that a child born in the context of
a marriage is the child of the married spouses. Rather, the
summons attached to the Amended Complaint notified him
of a fact-finding hearing that preceded the issuance of the
child support order. Plaintiff has not alleged facts plausibly
suggesting that he did not receive sufficient notice of the
commencement of the proceedings before the child support
order was enacted against him (or that he even attended
the hearing). Moreover, the summons specifically states that
“failure to appear will result in the entry of an order on default
unless service has been made by mail alone, in which event no
default may be entered without proof satisfactory to the court
that you have received actual notice of the commencement
of this proceeding.” (Dkt. No. 12, Attach. 1, at 1.) Without
any factual allegation plausibly suggesting that Plaintiff (a)
lacked notice of the hearing such that a default was improper,
or (b) attended the hearing but was denied the opportunity to
provide evidence to counter the presumption created by the
marriage license, the Court cannot find that he has alleged
facts plausibly suggesting that Defendant violated his due
process rights in relying on the marriage license when issuing
the child support order.
Plaintiff also argues that his due process rights were
violated by the fact that a Support Magistrate of the Family
Court granted the petition for child support because the
Federal Manual of Child Support requires that “[p]roceedings
conducted pursuant to either the expedited judicial or
expedited administrative process must be presided over an
individual who is not a judge of the court.” (Dkt. No. 15,
at 4 [Pl.’s Opp'n Mem. of Law].) However, even if Plaintiff
has alleged facts plausibly suggesting that Defendant violated
this provision of the Federal Manual of Child Support (a
finding that the Court does not make), he has made no factual
allegation plausibly suggesting how any such violation in
turn violated his due process rights under the United States
Constitution. 3
*7 Having already afforded Plaintiff an opportunity to
amend his Complaint, the Court finds that it need not grant
Plaintiff an opportunity to amend the Amended Complaint
to attempt to cure any of the above-mentioned deficiencies,
In any event, it finds those deficiencies to be substantive in
nature, due to the findings that the Court lacks subject-matter
jurisdiction to consider any claims that fall under the Rooker-
Feldman doctrine, and that any other potential claims are
untimely (and Plaintiff has not offered any indication that he
could allege facts to plausibly suggest that those claims were
in fact timely).
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 13)
is GRANTED; and it is further
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ORDERED that Plaintiff's Amended Complaint (Dkt. No.
12) is DISMISSED. All Citations
Not Reported in Fed. Supp., 2020 WL 1923236
Footnotes
1 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1,
2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary
judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1]
documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering
a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where
a document is not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even
if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of
fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”)
(internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate
by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may
nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without
converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
2 The Court notes that, although Defendant argues that subject-matter jurisdiction is lacking over Plaintiff's
claims based on the domestic relations exception, the Second Circuit recently held that the domestic relations
exception does not apply in federal-question cases. Deem v. DiMell-Deem, 941 F.3d 618, 621 (2d Cir. 2019).
Although the Second Circuit also found that, notwithstanding the inapplicability of the domestic relations
exception, the separate domestic relations abstention doctrine does apply to federal-question cases, the
Court need not determine whether abstention would be appropriate in this case based on its finding that
the Rooker-Feldman doctrine divests the Court of subject-matter jurisdiction over any claims that would be
covered by that abstention. Finally, the Court notes that it may sua sponte consider the Rooker-Feldman
doctrine (even though Defendant never invoked it) because pursuant to Fed. R. Civ. P. 12(h)(3), the Court
may sua sponte consider whether it lacks subject-matter jurisdiction over a claim.
3 Of note, the New York Family Court Act indicates that support magistrates are in fact not “a judge of the
court” as Plaintiff appears to assert. See N.Y. Fam. Ct. § 439(a) (indicating that, although support magistrates
are appointed to have authority over certain matters related to support proceedings, their findings in many
cases are limited or overseen by “a judge of the court”). Given that Plaintiff himself acknowledges that the
decision-maker on the support petition was a “Family Court Support Magistrate” (an acknowledgment that is
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confirmed by the attachment to the Amended Complaint), the Court finds that Plaintiff has not alleged facts
plausibly suggesting that the use of a support magistrate was in anyway contrary to federal law or policy.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 5891888
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrea LAPIETRA, Individually and as Power
of Attorney, and Deashon Tarver, Plaintiffs,
v.
CITY OF ALBANY POLICE
DEPARTMENT, et al., Defendants.
9:19-CV-1527 (TJM/TWD)
|
Signed 10/05/2020
Attorneys and Law Firms
ANDREA LaPIETRA, Plaintiff, pro se, 1030 Washington
Ave. #2, Albany, NY 12203.
DEASHON TARVER, Plaintiff, pro se, Monte Mario Motel,
Room 21, 947 New Loudon Road, Latham, NY 12110.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 This action was commenced by two pro se plaintiffs,
Deashon Tarver (“Tarver”) and Andrea LaPietra (“LaPietra”),
individually and “as Power of Attorney” for Tarver, pursuant
to 42 U.S.C. § 1983 (“Section 1983”). (Dkt. No. 1.) A
complete history of this action to date can be found in the
prior Decisions and Orders of this Court filed on January 15,
2020, February 26, 2020, and April 6, 2020. (See Dkt. Nos.
4, 11, 13.) The Court previously granted LaPietra's motion
to proceed in forma pauperis and dismissed any claims that
LaPietra asserted on behalf of Tarver. (Dkt. No. 4 at 4-5.)
The Court also directed Tarver to comply with the filing fee
requirements. Id.
On May 22, 2020, Tarver complied with the Court's directives
and submitted a motion to proceed in forma pauperis
(“IFP Application”). (Dkt. No. 20.) Upon review of Tarver's
IFP application, the Court finds that he has demonstrated
sufficient economic need. See 28 U.S.C. § 1915(a)(2).
Accordingly, the Court grants Tarver's IFP Application.
The Court shall now consider the sufficiency of the
allegations set forth in the Complaint in light of 28 U.S.C. §
1915(e) and 28 U.S.C. § 1915A. (Dkt. No. 1.) The Court will
also address Tarver's motion to appoint counsel (Dkt. No. 21)
and LaPietra's motion to appoint counsel (Dkt. No. 6), which
was previously held in abeyance. (See Dkt. No. 11.)
II. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
Having found that Plaintiffs meet the financial criteria for
commencing this action in forma pauperis, and because
Plaintiffs seek relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the Complaint in light of 28
U.S.C. §§ 1915(e) and 1915A. 1 Section 1915(e) of Title 28
of the United States Code directs that, when a plaintiff seeks
to proceed in forma pauperis, “the court shall dismiss the case
at any time if the court determines that – ... (B) the action ...
(i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). 2
*2 Similarly, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint ... is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or ... seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d
Cir. 1999) (per curiam) (noting that Section 1915A applies to
all actions brought by prisoners against government officials
even when plaintiff paid the filing fee).
Additionally, when reviewing a complaint, the Court may
also look to the Federal Rules of Civil Procedure (“Federal
Rules”). Rule 8 of the Federal Rules provides that a pleading
which sets forth a claim for relief shall contain, inter alia,
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The
purpose of Rule 8 “is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to
file a responsive answer, prepare an adequate defense and
determine whether the doctrine of res judicata is applicable.”
Hudson v. Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1
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(S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland
Bank, No. 95-CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y.
June 23, 1995) (other citations omitted)). Although “[n]o
technical form is required,” the Federal Rules make clear that
each allegation contained in the pleading “must be simple,
concise, and direct.” Fed. R. Civ. P. 8(d).
Further, Rule 10 of the Federal Rules provides in pertinent
part that:
“[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence – and each defense other than a denial – must
be stated in a separate count or defense.
Fed. R. Civ. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores v. Graphtex, 189
F.R.D. 54, 54 (N.D.N.Y. 1999) (quotation marks and citations
omitted).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555). Rule 8 of the Federal
Rules “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. Thus, a pleading that
contains only allegations which “are so vague as to fail to give
the defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009).
Where a pro se complaint fails to state a cause of action, the
court generally “should not dismiss 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.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and
internal quotation marks omitted). 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.” Id. (citation omitted).
B. Summary of the Complaint
*3 The incidents that form the foundation for the Complaint
occurred on December 14, 2016, and while Tarver was
confined at Albany County Correctional Facility (“Albany
County C.F.”). The Complaint totals 259 pages and is a
rambling, disjointed mix of conclusory allegations, that is, in
large part, comprised of excerpts that appear to have been
cut and pasted throughout the document from legal articles,
statutes, and cases. (Dkt. No. 1. 3 ) Named as defendants
are: City of Albany Police Department, Officer Jan Mika,
Officer Adam Iannacito, Albany County C.F., CO Burns,
Sgt. Remillard, Unknown Officers, Unknown Parole Officers,
Unknown Plain Clothes Officer, Unknown Sgt., Unknown
Correctional Officers, and Unknown Medical and Dental
Workers. The following facts are set forth as alleged by
Plaintiffs.
On December 14, 2016, Plaintiffs were at LaPietra's second-
floor apartment located at 1030 Washington Avenue, #2, in
Albany, New York. (Dkt. No. 1-1 at 5. 4 ) Tarver, identified
as LaPietra's “loved one” and boyfriend, was on parole
supervision. Id. LaPietra left “to pick something up” and
Tarver stayed at the apartment. Id. She left her apartment
keys with Tarver. Id. On the way back to the apartment,
LaPietra received a telephone call from her “case coordinator”
informing her that Albany police officers were outside her
apartment. Id.
When she returned to the apartment, Tarver “was sitting and
being detained, handcuffed in the back seat of a police vehicle
that was parked in front of the apartment.” Id. 5 Tarver was
“under arrest” but the police officers did not tell Tarver “what
he was under arrest for” and did not read him his “Miranda”
rights. Id. “They threatened that they were going to taser
him[.]” Id.
LaPietra states her “apartment was open and the police”
had been through the apartment and her personal belongings
including “paperwork pertaining to [her] health, government
paperwork, [her] garbage, and everything.” Id. at 5, 6.
LaPietra was also questioned by police officers and a sergeant.
Id. at 6. She stated Tarver did not live with her but admitted
he sometimes stayed overnight “with the permission of his
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PO.” Id. LaPietra was also asked other personal questions,
including “confidential” conditions of her residence program.
Id. at 6. “They” also questioned LaPietra about “some items
that were in the corner of the dining room” because “they
suspected that those items were stolen.” Id. at 7. Officer Jan
Mika said to LaPietra, “oh by the way some parole officers
were here earlier.” Id. at 8-9. She thought that was a “strange
comment to make at the time because it did not fit into the
context of what [they] were speaking about.” Id. at 9. 6
*4 LaPietra “was outside with the officers they asked [her] to
go sit in [her] car then another officer said no stand over here
to the side of the driveway.” Id. at 7. LaPietra states she was
“detained” and “questioned” for more than twenty-minutes
and her apartment was searched without a warrant. Id. at 7,
15-6.
During the course of Tarver's arrest, he was “pushed up
against a police vehicle, his earring was ripping out of his
ear ... the police then threated to use a Taser on him ...
and then put him on the ground.” Id. at 101. Tarver was
arrested without a warrant and charged with petty larceny.
Id. at 7. Tarver was “arraigned judicially for a misdemeanor”
and “maliciously prosecuted for a felony.” Id. at 11. Tarver
ultimately “took a plea deal.” Id. at 13.
The Complaint states that defendant “law enforcement
officers observed the illegal nature of the search and seizure
of the residence and willfully ignored it and participated.” Id.
at 10. Plaintiffs claim that “fellow officers had an opportunity
to intervene to prevent further harm and to report the
misconduct. Yet they failed to act or intervene.” Id. The
Complaint further claims the Sergeant of the Albany Police
Department “participated” in Tarver's arrest, was responsible
for the supervision of the defendant police officers, failed to
intervene and prevent the ongoing misconduct of the officers,
“which resulted in the arrest and prosecution” of Tarver. Id.
at 10-11. 7
Later that night, “they” took Tarver from the police station
to the emergency room at Albany Medical Center “because
he tried to hurt himself.” Id. at 92. Tarver's hands and feet
were shackled. Id. at 92-93. At the emergency room, Tarver
was denied his right civil rights to use the bathroom and
was subjected to excessive force. Id. Although Tarver was
permitted to use the bathroom at least once while at the
emergency room, which “went well,” when it “came time
for him to go to the bathroom again ... the police said
no.” Id. Tarver became “emotionally upset and swore” and
“stood up.” Id. “They tackled him to try and force him to
lay down onto the hospital bed.” Id. “Then they shot him
with Benadryl.” Id. “An officer in the process of tackling
him fractured his pinky finger. Then they turned around and
charged [Tarver] with Felony Assault on an Officer.” Id. But
Tarver had “no intention to either interfere with or assault an
officer nor did he assault the officer.” Id. The use of force
aggravated Tarver's preexisting “AC separation.” (Dkt. No.
1-1 at 5.)
Tarver was confined at Albany County C.F. from December
2016 until April 2018. During his confinement, Tarver did
not receive proper medical care for “an AC separation.” (Dkt.
No. 1-1 at 3-4, 85, 89.) Although x-rays were taken of
Tarver's shoulder, he was told by “a doctor” that, “[w]e
don't do surgery here.” Id. at 85, 126; Dkt. No. 1-6 at 27.
Tarver received no other treatment or care for his shoulder
complaints and his requests for an MRI and a visit with his
personal physician were denied. (Dkt. No. 1-1 at 136; Dkt.
No. 1-6 at 27.)
*5 During his confinement at Albany County C.F., Tarver,
who suffers from “Schizo Affective Disorder,” depression,
and PTSD, received seven different types of psychiatric
medicine that were not administered “as scheduled.” (Dkt.
No. 1-1 at 3, 124; Dkt. No. 1-6 at 73.) Tarver was not provided
with trauma therapy or a social worker. (Dkt. No. 1-1 at 136.)
From October 2017 until April 2018, Tarver was denied
adequate dental care for “extreme pain” that impacted his
daily activities. (Dkt. No. 1-1 at 4, 124; Dkt. No. 1-6 at
24.) Tarver submitted numerous medical call slips and waited
“months” to see a dentist. (Dkt. No. 1-1 at 124; Dkt. No.
1-6 at 22, 24.) When he finally saw a nurse in late October
2017, the nurse informed him that he would “see the dentist
in five days” and gave him Motrin for his pain. (Dkt. No.
1-1 at 126; Dkt. No. 1-6 at 22-23.) When Tarver saw the
dentist, he was told that there was an “issue with his wisdom
teeth and a filling in another tooth” but the dentist “did
nothing.” (Dkt. No. 1-1 at 126.) In November 2017, Tarver
was given Amoxycillin, however, the facility records do not
indicate that he suffered from decay or infection. Id. Tarver
continued to suffer from pain and was told, “we don't do root
canals here.” Id. at 24; Dkt. No. 1-1 at 126. As a result, Tarver
had a “tooth fall straight out of his mouth” while at Albany
County C.F. (Dkt. No. 1-1 at 126; Dkt. No. 1-6 at 6, 23.)
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Tarver also claims that his weight, blood sugar, and sleep
apnea were not properly monitored at the facility. (Dkt. No.
1-1 at 129; Dkt. No. 1-6 at 7, 27.)
On October 23, 2017, LaPietra wrote to Melanie Trimble
(“Trimble”) at the Capital Region ACLU, to complain
about Tarver's medical and dental care. (Dkt. No. 1-1 at
125.) Trimble relayed LaPietra's concerns to Michael Lyons
(“Lyons”), who was surprised that there was a dentist at
Albany County C.F. Id. LaPietra also called the Sheriff's
Office and spoke to Mr. Newman (“Newman”). Id. Newman
told LaPietra to speak with a sergeant or superintendent
during a visit with Tarver, but that the sergeant “can't do
anything.” Id. In December 2017, LaPietra wrote to the
Commission of Correction and Inspector General's office
to complain about Tarver's medical and dental care. Id. at
119-20. The Commission responded to Tarver and instructed
him to file a grievance. Id. at 126-27.
On March 9, 2018, Tarver received a letter from Prisoner
Legal Services “about his rights.” (Dkt. No. 1-1 at 4; Dkt.
No. 1-6 at 1, 25.) On March 13, 2018, one day after LaPietra
filed “papers for this case in the Supreme Court Clerk's
office,” Tarver was assaulted by defendant C.O. Burns. Id.
The assault occurred while another officer was performing
“a squat and cough” of Tarver in his cell. Id. Burns willfully
entered Tarver's cell “for the purposes of assault[.]” (Dkt. No.
1-1 at 148-52; Dkt. No. 1-6 at 25-26.) Burns told Tarver that
he was not “coughing properly,” pushed him onto the bed,
punched him in the face, and sprayed him with mace. Id.
At the time of the assault, Tarver was naked and in a squat
position, with his back facing the officers. Id. Defendant Sgt.
Remillard was present during the assault and did not intervene
on Tarver's behalf. Id. Tarver was taken to the nurse so that
his eyes could be flushed. (Dkt. No. 1-1 at 148-152; Dkt. No.
1-6 at 25-26.) As a result of being sprayed with mace, his face
was swollen and his eyes were “red and bloodshot.” (Dkt. No.
1-6 at 25-26.)
*6 After the incident, Tarver was placed in “lockdown”
without any writing utensils, legal materials, or mail. (Dkt.
No. 1-1 at 129, 143; Dkt. No. 1-6 at 26-27.) The “charges”
surrounding his lockdown were not properly or timely
presented to him, he was not provided with an assistant related
to the disciplinary charges, and he was terminated from his
job. (Dkt. No. 1-1 at 164-66; Dkt. No. 1-6 at 26-27.) Tarver's
property, including letters and books, were confiscated. (Dkt.
No. 1-1 at 174, 178.) Tarver was also denied any outdoor or
recreational time. Id. at 168.
In March 2018, LaPietra visited Tarver. (Dkt. No. 1-1 at 156.)
At that time, Burns was “laughing” about the assault and told
LaPietra that Tarver was a “bad boy,” who hadn't coughed for
him. Id. LaPietra telephoned the Commission of Corrections
to report the assault and mailed a letter on April 2, 2018, to
officially complain about the assault, Tarver's inability to file
grievances, and mail tampering. Id. at 162.
On May 3, 2018, LaPietra called the Commission of
Corrections, spoke to Debbie Clark (“Clark”) and reported the
March 2018 assault. Id. at 179. Clark would not share any
information with LaPietra. Id.
During his confinement at Albany County C.F., Tarver was
“blocked from and denied grievance[s]” related to medical
and dental care and “solitary confinement in relation to his
assault.” (Dkt. No. 1 at 2; Dkt. No. 1-1 at 127-128, 141
150; Dkt. No. 1-6 at 27.) The facility also “interfered” with
his legal mail. (Dkt. No. 1-1 at 123-24, 144.) For example,
Tarver sent a letter to “Judge Keefe,” a “consultant” with the
Center for Law and Justice. Id. Tarver marked the envelope
“Attorney Mail” and placed an address on it. Id. at 122-23.
The mail did not reach the intended recipient and “may have
affected his rights to bring a claim against the municipality
in a timely manner.” Id. at 123-24. Tarver was released
from “solitary” in April 2018 and transferred to Downstate
Correctional Facility, shortly thereafter. Id. at 129.
LaPietra alleges that Albany County C.F. would not allow
her to wear “a Native American necklace into the facility”
in violation of her First Amendment rights. (Dkt. No. 1-1 at
190-193.)
Construing the Complaint liberally, Tarver asserts the
following: (1) Fourth Amendment claims for unreasonable
search and seizure, false arrest, excessive force, and malicious
prosecution; (2) Fourteenth Amendment claims for excessive
force, failure-to-protect, and conditions of confinement;
(3) First Amendment retaliation claims; (5) Fourteenth
Amendment claims related to his medical and dental care;
(6) Fourteenth Amendment due process claims; (7) First
Amendment access to court and mail interference claims;
(8) constitutional claims related to the grievance process; (9)
Fourteenth Amendment equal protection claims; (10) Sixth
Amendment claims related to the right to counsel; (11) state
law claims; and (12) claims pursuant to the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (See
Dkt. No. 1-1 at 5, 10, 11, 17, 88, 96, 97, 102, 105, 113,
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127, 128, 146, 152; 164, 172, 182; Dkt. No. 1-6 at 21-27.)
LaPietra asserts the following: (1) Fourth Amendment claims
for unreasonable search and seizure and false arrest; (2) state
law claims; and (3) First Amendment freedom of religion
claim. (See Dkt. No. 1-1 at 5, 10, 11, 17, 88, 190-193.)
Plaintiffs seek unspecified injunctive relief, monetary
damages, and an order allowing them to file a late notice of
claim in state court. (Dkt. No. 1 at 6; Dkt. No. 1-1 at 3, 184-85,
1-6 at 1-2. 8 ) For a more complete statement of Plaintiffs’
claims, reference is made to the Complaint.
C. Nature of Action
*7 Plaintiffs seek relief pursuant to Section 1983, which
establishes a cause of action for “ ‘the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws’ of the United States.” Wilder v. Virginia Hosp.
Ass'n, 496 U.S. 498, 508 (1990)); see also Myers v. Wollowitz,
No. 95-CV-0272 (TJM), 1995 WL 236245, at *2 (N.D.N.Y.
Apr. 10, 1995) (finding that “[Section] 1983 is the vehicle by
which individuals may seek redress for alleged violations of
their constitutional rights”). “Section 1983 itself creates no
substantive rights, [but] ... only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993). Thus, to state a cognizable
claim under Section 1983, a complaint must allege “(1) ‘that
some person has deprived [the plaintiff] of a federal right,’
and (2) ‘that the person who has deprived [the plaintiff] of
that right acted under color of state law.’ ” Velez v. Levy, 401
F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S.
635, 640 (1980)) (alteration omitted).
The Court will construe the allegations in the Complaint with
the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (holding that a pro se litigant's complaint is to be held
“to less stringent standards than formal pleadings drafted by
lawyers”).
III. ANALYSIS
A. City of Albany Police Department
The caption of the Complaint lists the City of Albany Police
Department as a defendant. (Dkt. No. 1 at 1.) “[U]nder New
York law, departments that are merely administrative arms of
a municipality do not have a legal identity separate and apart
from the municipality and, therefore, cannot sue or be sued.”
Davis v. Lynbrook Police Dep't, 224 F. Supp. 2d 463, 477
(E.D.N.Y. 2002) (dismissing § 1983 claim brought against the
Lynbrook Police Department); see also La Grande v. Town
of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH),
2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since
the Bethlehem Police Department cannot be sued pursuant to
42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed
as against the Town of Bethlehem Police Department.”);
Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL
4052286, at *5 (N.D.N.Y. Sept. 13, 2012) (“Because the
Syracuse Police Department is merely an administrative arm
of the City of Syracuse, it is not a proper defendant.”).
However, in deference to Plaintiffs’ pro se status, the Court
will construe Plaintiffs’ claims as if they had been brought
against the City of Albany, the real party in interest. See Solis
v. Cty. of Westchester, No. 94-CV-5102, 1995 WL 14072,
at *1 (S.D.N.Y. Jan. 10, 1995) (noting that the Westchester
County Department of Corrections is not a legal entity and
that the County of Westchester is the real party in interest).
Pursuant to the standard for establishing municipality liability
laid out in Monell v. Dep't of Soc. Servs. of the City of New
York, 436 U.S. 658 (1978), in order to set forth a cognizable
claim for municipal liability under Section 1983, a plaintiff
must plead and prove that a deprivation of his constitutional
rights “was caused by a governmental custom, policy, or
usage of the municipality.” Jones v. Town of East Haven, 691
F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. 658);
see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44
(2d Cir. 1985) (“The plaintiff must first prove the existence
of a municipal policy or custom in order to show that the
municipality took some action that caused his injuries beyond
merely employing the misbehaving officer.”) A municipality
may be liable for deprivation of constitutional rights under
Section 1983 for policies or customs resulting in inadequate
training, supervision, or hiring when the failure to train,
supervise, or hire amounts to deliberate indifference to the
rights of those with whom municipal employees will come
into contact. See City of Canton, Ohio v. Harris, 489 U.S.
378, 388-89 (1989). A plaintiff must also establish a causal
connection – an affirmative link–between the policy and the
deprivation of his constitutional rights. Oklahoma v. Tuttle,
471 U.S. 808, 823 (1985) (plurality opinion).
*8 Here, Plaintiffs have failed to identify or allege
any facts plausibly showing the existence of a municipal
policy or custom of the City of Albany authorizing,
permitting, allowing, or tolerating “abuses in violation of
the Constitution” including unreasonable search and seizure,
false arrest, and excessive force incidents or any affirmative
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link between such a policy and defendants’ alleged actions
with regard to Plaintiffs. (See generally Dkt. No. 1.)
Furthermore, Plaintiffs’ conclusory allegations that the City
of Albany failed to train and supervise defendants, see id.,
without supporting factual allegations, fails to state a Monell
claim against the City of Albany that is plausible on its face.
See Tuttle, 471 U.S. at 824 n.8 (“The fact that a municipal
‘policy’ might lead to ‘police misconduct’ is hardly sufficient
to satisfy Monell's requirement that the particular policy be
the ‘moving force’ behind a constitutional violation.”).
Based upon the foregoing, the Court recommends that
Plaintiffs’ claims under 42 U.S.C. § 1983 against City
of Albany Police Department be dismissed with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b).
Moreover, notwithstanding a very liberal interpretation of
the Complaint, to the extent that Plaintiffs’ claims could be
construed to be asserted against the City of Albany, as the
real party in interest, it is recommended that the claims be
dismissed without prejudice and with leave to amend pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted.
B. Officer Jan Mika
“It is well settled that, in order to establish a defendant's
individual liability in a suit brought under § 1983, a plaintiff
must show, inter alia, the defendant's personal involvement in
the alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013). Thus, “a Section
1983 plaintiff must ‘allege a tangible connection between the
acts of the defendant and the injuries suffered.’ ” Austin v.
Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y.
Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263
(2d Cir. 1986)) (other citation omitted).
Here, the Complaint states that Officer Jan Mika asked
LaPietra questions on December 14, 2016, such as her “name,
address, date of birth, etc.” and also told her, “Oh by the
way parole officers were here earlier.” (Dkt. No. 1-1 at 10,
46.) However, Plaintiffs do not plead any facts sufficient to
plausibly suggest that this defendant was personally involved
in any conduct that violated either of Plaintiffs’ constitutional
rights and, therefore, the Complaint fails to state a cognizable
claim against this defendant. See Cipriani v. Buffardi, No.
06-CV-0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y.
Feb. 20, 2007) (“Dismissal is appropriate where a defendant
is listed in the caption, but the body of the complaint fails
to indicate what the defendant did to the plaintiff.”) (citation
omitted).
Accordingly, it is recommended that Plaintiffs’ claims against
Officer Jan Mika be dismissed without prejudice and with
leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
C. Unknown Officers, Unknown Parole Officers,
Unknown Plain Clothes Officer, Unknown Sgt.
Separate from the substantive personal involvement
requirement, discussed above, is a pleading requirement that,
to adequately state a claim, a plaintiff's complaint must
“differentiate which defendant[s] w[ere] involved in [what]
unlawful conduct.” Ying Li v. City of New York, No. 15-
CV-1599, 2017 WL 1208422, at *6 (E.D.N.Y. Mar. 31, 2017);
see also Wright v. Orleans Cty., No. 14-CV-622, 2015 WL
5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a § 1983
case that “[g]roup pleading is insufficient for purposes of Rule
8(a)(2), which requires a short and plain statement of the
claim showing that the pleader is entitled to relief” (citation
and quotation marks omitted)); Holmes v. Allstate Corp., No.
11-CV-1543, 2012 WL 627238, at *7, *22 (S.D.N.Y. Jan. 27,
2012) (“Rule 8(a) is violated where a plaintiff, by engaging
in ‘group pleading,’ fails to give each defendant fair notice of
the claims against it.”).
*9 To satisfy the personal involvement requirement and
the rule against group pleading, it is not necessary for a
plaintiff to know the name of the defendant. Where a plaintiff
does not know the name of a defendant, the plaintiff may
identify the defendant in the pleading as John or Jane Doe.
However, the pleading must still satisfy the rules governing
personal involvement and group pleading as to the John
or Jane Doe defendant. See Little v. Mun. Corp., 51 F.
Supp. 3d 473, 493-94 (S.D.N.Y. 2014) (dismissing without
prejudice excessive force claim asserted against “members of
the ‘Special Search Team’ and ‘ESU Officers’ ” and noting
that, “[t]o the extent that [plaintiff] does not know the names
of the members of the Special Search Team or ESU Officers
involved, he may name ‘John Doe’ defendants and include
as much identifying information as he has knowledge of,
for the purpose of filing an amended complaint, should [he]
chose to do so”); Williams v. 120 PCT Undercover, No. 11-
CV-4690, 2011 WL 13128209, at *1 (E.D.N.Y. Oct. 18, 2011)
(dismissing complaint without prejudice where plaintiff's
claims provided information about the alleged constitutional
deprivations, but were brought against “the 120 Precinct and
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District 9, a police precinct and district of the New York City
Police Department”).
Here, Plaintiffs simply list different groups of unidentified
defendants in the caption of the Complaint and generally
allege that on December 16, 2014, their Fourth Amendment
constitutional rights were violated. The use of the terms
“they,” or “the police” or “officer” as a name for alleged
defendants is not adequate to state a claim against a “person”
as required in § 1983 actions. See Williams, 2011 WL
13128209, at *1 (dismissing complaint with leave to amend
where the “[p]laintiff alleges that unnamed undercover police
officers used excessive force against him and caused him to
sustain injuries on August 26, 2008 but does not identify any
particular defendants.”). 9
Moreover, if the defendant is a supervisory official, a mere
“linkage” to the unlawful conduct through “the prison chain
of command” (i.e., under the doctrine of respondeat superior)
is insufficient to show his or her personal involvement in
that unlawful conduct. Polk Cty. v. Dodson, 454 U.S. 312,
325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.
2003). In other words, supervisory officials may not be held
liable merely because they held a position of authority. Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, supervisory
officials may be considered “personally involved” if they (1)
directly participated in the violation; (2) failed to remedy that
violation after learning of it through a report or appeal; (3)
created, or allowed to continue, a policy or custom under
which the violation occurred; (4) had been grossly negligent
in managing subordinates who caused the violation; or (5)
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that the violation was
occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Based on the foregoing, the Court finds Plaintiffs have
failed to adequately plead that any individual defendant
was personally involved in any alleged wrongdoing on
December 14, 2016, and has contravened the rule against
group pleading. Therefore, the Court recommends dismissing
Plaintiffs’ claims against these “Unknown” defendants
without prejudice and with leave to amend pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted. 10
D. Officer Adam Iannacito
*10 Tarver claims Iannacito used “excessive force on” him
on December 14, 2016, in the Emergency Room by, inter alia,
by “tackling” Tarver while he was restrained in shackles and
prevented him from using the bathroom in violation of his
constitutional rights, “which worsened [Tarver's] injury from
a prior workplace assault, which was an AC separation.” (Dkt.
No. 1-1 at 96-113, Dkt. No. 1-6 at 5-6, 20-21.) It appears that
during the assault, Iannacito fractured a finger and thereafter
“maliciously prosecuted [Tarver] with felony assault on an
officer.” Id.
To the extent Tarver asserts these claims under Section
1983, such claims are time-barred. Although the statute of
limitations is an affirmative defense, where it is clear from the
face of the complaint that a claim is barred by the applicable
statute of limitations, the claim is subject to dismissal for
failure to state a claim on initial review. See Pino v. Ryan,
49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint
can be dismissed on initial review based on a defense that
appears on the face of the complaint). The applicable statute
of limitations for a Section 1983 action is governed by “the
law of the state in which the cause of action arose.” Wallace
v. Kato, 549 U.S. 384, 387 (2007). In New York, the general
statute of limitations for personal injury claims is three years.
See N.Y. C.P.L.R. § 214(5).
Here, Tarver executed the Complaint on February 6, 2020.
(See Dkt. No. 7.) The alleged assault and deprivations by
Iannacito at the Emergency Room occurred on December
16, 2016. Accordingly, Tarver's Section 1983 claims against
Iannacito are barred by the applicable statute of limitations.
To the extent these claims are asserted under New York law,
claims for intentional torts, such as assault and battery, and
intentional infliction of emotional distress, are governed by
a one-year statute of limitations. N.Y. C.P.L.R. § 215(3);
see also Ashjari v. Nynex Corp., 182 F.3d 898 (2d Cir.
1999) (“Under N.Y. C.P.L.R. § 215(3), claims of assault and
battery ... must be brought within one year from the date the
claim accrued.”); see also Forbes v. Merrill Lynch, Fenner &
Smith, Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) (“It is well
established under New York law that a claim of intentional
infliction of emotional distress has a one–year statute of
limitations.”). Accordingly, Tarver's claims against Iannacito,
asserted under state law, are also barred by the applicable
statute of limitations.
Therefore, the Court recommends dismissing Tarver's claims
against Officer Adam Iannacito without prejudice and with
leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii) and
1915A(b)(1). Because a district court typically should not
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dismiss a claim as time-barred without providing a pro se
plaintiff with “notice and opportunity to be heard” as to
whether there might be a meritorious tolling argument or
other reason why the complaint might be considered, if
Tarver files an amended pleading with claims asserted against
this defendant arising from the alleged December 14, 2016,
incidents, he should address the issue of timeliness. See Abbas
v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007).
E. Albany County C.F.
The caption of the Complaint lists Albany County C.F. as a
defendant. (Dkt. No. 1.) However, as set forth above, because
the Albany County C.F. is an administrative arm of Albany
County, without a legal identity separate and apart from the
County, it lacks the capacity to be sued. See Part III.A., supra.;
see also Lukes v. Nassau Cty. Jail, No. 12-CV-1139, 2012
WL 1965663, at *2 (E.D.N.Y. May 29, 2012) (dismissing
claims against defendant Nassau County Jail because it “is
an administrative arm of Nassau County, without a legal
identity separate and apart from the County”); see Solis v.
Cty. of Westchester, No. 94-CV-5102, 1995 WL 14072, at *1
(S.D.N.Y. Jan. 10,1995) (noting that the Westchester County
Department of Corrections is not a legal entity and that the
County of Westchester is the real party in interest);
*11 Based upon the foregoing, the Court recommends that
Plaintiffs’ claims under 42 U.S.C. § 1983 against Albany
County C.F. be dismissed with prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
Nevertheless, in deference to Plaintiffs’ pro se status, the
Court will construe Plaintiffs’ claims as if they had been
brought against Albany County, the real party in interest.
See Shabazz v. Johnson City Police Dep't, No. 3:18-CV-0570
(MAD/DEP), 2018 WL 5660406, at * (June 21, 2018)
(reviewing complaint against the real party in interest).
As discussed above, municipal liability is limited under
Section 1983 by Monell. See Part III.A., supra.
Here, with one minor exception discussed below, Plaintiffs
have failed to identify or allege any facts plausibly showing
the existence of a municipal policy or custom of Albany
County authorizing, permitting, allowing, or tolerating
“abuses in violation of the Constitution” including deliberate
medical indifference and excessive force incidents or any
affirmative link between such a policy and any defendants’
alleged actions with regard to Tarver. See Dkt. No. 1-1 at
146-147. See Missel v. Cty. of Monroe, 351 F. App'x 543,
545 (2d Cir. 2009) (Monell claim requires “factual allegations
that would support a plausible inference that the County[ ]’s
‘policies’ or ‘customs’ caused ... violations ... of rights.”).
Furthermore, Plaintiffs’ conclusory allegations that Albany
County failed to train and supervise defendants, see id.,
without supporting factual allegations, fails to state a Monell
claim against Albany County that is plausible on its face. See
Tuttle, 471 U.S. at 824 n.8.
The Complaint states that “[t]he Albany County [C.F.] refused
to allow [LaPietra] to wear a Native American necklace into
the facility at a visitation stating that it is not a religion
recognized by the United States government and that it had to
be a religion like Christianity or the Muslim religion. This is
a First Amendment rights violation. It is also inherently false
that it is not a form of religion recognized by the United States
government because the United States recognizes Natives
through the American Indian Religious Freedom Act.” (Dkt.
No. 1-1 at 190.) Mindful of the Second Circuit's direction
that a pro se plaintiff's pleadings must be liberally construed,
see Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008), LaPietra has sufficiently plead, albeit thinly,
a cognizable claim regarding the aforementioned policy at
Albany County C.F.
Accordingly, based upon a very liberal interpretation of the
Complaint, to the extent that Plaintiffs’ claims could be
construed to be asserted against Albany County as the real
party in interest, it is recommended that only LaPietra's First
Amendment Monell claim survives initial review and requires
a response and that all other claims be dismissed without
prejudice and with leave to amend pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted. The Court expresses
no opinion as to whether LaPietra's First Amendment Monell
claim can withstand a properly filed motion to dismiss or for
summary judgment.
F. Fourteenth Amendment Excessive Force and
Failure-to-Protect Claims Against Burns and
Remillard
*12 Tarver contends Burns assaulted him and that Remillard
failed to intervene to protect him from harm at Albany
County C.F. in March 2018. See generally Dkt. No. 1-1.
In the context of excessive force and failure-to-protect
claims asserted by pretrial detainees, the Supreme Court
distinguished between Eighth and Fourteenth Amendment
claims in holding that a pretrial detainee alleging that an
officer used excessive force against him in violation of
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the Fourteenth Amendment need not demonstrate that such
officer was subjectively aware that his use of force was
unreasonable. See Kingsley v. Hendrickson, 576 U.S. 389
(2015); see also Francis v. City of New York, No. 17-
CIV-1453, 2018 WL 4659478, at *4 (S.D.N.Y. Aug. 21,
2018) (applying Kingsley to failure-to-protect claim). 11 “[A]
pretrial detainee must only show that the force purposely or
knowingly used against him was objectively unreasonable
to prevail on an excessive force claim.” Kingsley, 576 U.S.
at 397. “[I]f the use of force is deliberate – i.e., purposeful
and knowing – the pretrial detainee's claim may proceed.”
Id. Courts consider a number of factors when determining
objective reasonableness, including:
the relationship between the need for
the use of force and the amount of
force used; the extent of the plaintiff's
injury; any effort made by the officer to
temper or to limit the amount of force;
the severity of the security problem at
issue; the threat reasonably perceived
by the officer; and whether the plaintiff
was actively resisting.
Id.
Mindful of the Second Circuit's direction that a pro se
plaintiff's pleadings must be liberally construed, see Sealed
Plaintiff, 537 F.3d at 191, Tarver has sufficiently plead
Fourteenth Amendment excessive force and failure-to-protect
claims against Burns and Remillard.
Therefore, the Court recommends that Tarver's Fourteenth
Amendment excessive force and failure-to-protect claims
against Burns and Remillard survive sua sponte review and
require a response. The Court expresses no opinion as to
whether these claims can withstand a properly filed motion to
dismiss or for summary judgment.
G. Assault and Battery Claims Against Burns
Tarver also asserts assault and battery claims against Burns.
To the extent that Tarver asserts these claims under Section
1983, it is duplicative of his excessive force claim and must
be dismissed for failure to state a claim upon which relief may
be granted. See Raymond v. Bunch, 136 F. Supp. 2d 71, 81
(N.D.N.Y. 2001). To the extent these claims are asserted under
New York law, as discussed above, claims for intentional
torts are governed by a one-year statute of limitations. N.Y.
C.P.L.R. § 215(3); see also Ashjari v. Nynex Corp., 182 F.3d
898 (2d Cir. 1999) (“Under N.Y. C.P.L.R. § 215(3), claims of
assault and battery ... must be brought within one year from
the date the claim accrued.”). As discussed above, although
the statute of limitations is an affirmative defense, where it
is clear from the face of the complaint that a claim is barred
by the applicable statute of limitations, the claim is subject
to dismissal for failure to state a claim on initial review. See
Pino, 49 F.3d at 53.
Here, Tarver executed the Complaint on February 6, 2020.
(See Dkt. No. 7.) The alleged assault by Burns occurred in
March 2018. Accordingly, Tarver's assault and battery claims,
asserted under state law, are barred by the applicable statute
of limitations.
Therefore, the Court recommends dismissing Tarver's assault
and battery claims with leave to amend pursuant to 28 U.S.C.
§§ 1915(e)(2)(ii) and 1915A(b)(1). Because a district court
typically should not dismiss a claim as time-barred without
providing a pro se plaintiff with “notice and opportunity
to be heard” as to whether there might be a meritorious
tolling argument or other reason why the complaint might
be considered, if Tarver files an amended pleading with a
claim for assault and battery, he should address the issue of
timeliness. See Abbas, 480 F.3d at 640.
H. First Amendment Retaliation Claims Against
Burns and Remillard
*13 Tarver claims that Burns and Remillard acted with
retaliatory intent when they assaulted him because he received
legal mail and filed a state court lawsuit. (See generally
Dkt. No. 1-1.) Retaliation claims find their roots in the First
Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81
(2d Cir. 2004). In a prison setting, prison officials may
not take actions that would have a chilling effect upon an
inmate's exercise of First Amendment rights. Id. at 381-83.
However, as the Second Circuit has repeatedly cautioned,
such claims are easily incanted and prone to abuse, as inmates
often attribute adverse actions to retaliatory animus. Dawes
v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on
other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002). Courts must therefore approach retaliation claims
with “skepticism and particular care.” Id. Accordingly, claims
of retaliation must be supported by specific facts; conclusory
statements are not sufficient. Flaherty v. Coughlin, 713
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F.2d 10, 13 (2d Cir. 1983), overruled on other grounds by
Swierkiewicz, 534 U.S. at 506.
To establish a prima facie First Amendment retaliation claim,
the plaintiff must establish “(1) that the speech or conduct at
issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.” Gill,
389 F.3d at 380 (citing Dawes, 239 F.3d at 492).
The filing of lawsuits and grievances is protected conduct for
purposes of First Amendment retaliation claims. See Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Graham v.
Henderson, 89 F.3d 75, 80 (2d Cir. 1996). Therefore, the
allegations in the Complaint plausibly suggest that Tarver was
engaged in protected conduct. Moreover, the alleged assault
constituted an “adverse action” against Tarver that would
deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights. See Rivera v.
Goord, 119 F. Supp. 2d 327, 339-340 (S.D.N.Y. 2000).
An inmate bears the burden of showing “the protected
conduct was a substantial or motivating factor” in the
defendant's decision to take action against the plaintiff.
Graham, 89 F.3d at 79. In evaluating whether a causal
connection exists between the plaintiff's protected activity
and a prison official's actions, “a number of factors may be
considered, including: (i) the temporal proximity between
the protected activity and the alleged retaliatory act; (ii)
the inmate's prior good disciplinary record; (iii) vindication
at a hearing on the matter; and (iv) statements by the
defendant concerning his motivation.” Baskerville v. Blot,
224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58
F.3d at 872-73). “The causal connection must be sufficient
to support an inference that the protected conduct played
a substantial part in the adverse action.” Id. A showing of
temporal proximity, without more, has generally been found
insufficient to survive summary judgment. See Roseboro v.
Gillespie, 791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (citations
omitted).
Here, Tarver has not adequately stated a claim for retaliation
against Burns and Remillard because he has not alleged facts
to suggest that they were aware Tarver received a letter from
Prisoner Legal Services or that LaPietra filed a lawsuit in state
court. Moreover, there is no allegation that Burns or Remillard
were defendants in that lawsuit. As a result, Tarver has failed
to allege plausibly that the lawsuit was causally connected to
Burns’ or Remillard's allegedly adverse actions. See Wilson v.
Kelly, No. 9:11-CV-00030 (MAD/RFT), 2012 WL 3704996,
at *9 (N.D.N.Y. Aug. 27, 2012) (claim dismissed due to
failure by plaintiff to allege plausibly that protected activity
was causally connected to any alleged adverse action taken
by the defendant where plaintiff failed to allege that the
defendant was aware of the protected activity).
*14 Therefore, the Court recommends that Tarver's
retaliation claims against Burns and Remillard be dismissed
with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(ii)
and 1915A(b)(1).
I. ADA Claims 12
Tarver claims that, as a prisoner with a mental illness, he
was entitled to modifications of his conditions of confinement
in the SHU. (Dkt. No. 1-1 at 170.) Title II of the ADA
provides, in pertinent 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. The
ADA is applicable to inmates in state correctional facilities.
See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 213
(1998). “Under Title II of the ADA ... prison officials may
not discriminate against inmates on the basis of disability
in administering work programs.” Harrington v. Vadlamudi,
No. 9:13-CV-795 (BKS/RFT), 2015 WL 4460994, at *3
(N.D.N.Y. July 21, 2015) (citations omitted). To successfully
plead a Title II claim, “[t]he inmate must establish that he
(1) is a qualified individual with a disability; (2) is being
excluded from participation in, or being denied benefits of
some service, program or activity by reason of his or her
disability; and (3) the entity providing the service is a public
entity.” Allah v. Goord, 405 F.Supp.2d 265, 274 (S.D.N.Y.
2005).
Here, the Complaint does not clearly indicate who Tarver is
suing for violations of his rights under the ADA and what
relief, if any, he seeks with respect to that claim. Assuming
Tarver asserts this claim against individual officers, he has not
indicated whether those officers are sued in their individual
capacity, official capacity, or both. (See generally Dkt. No. 1.)
To the extent that Tarver seeks monetary damages against any
defendant, in his or her individual capacity, the Second Circuit
has held Title II of the ADA does not provide for individual
capacity suits for monetary damages. See Garcia v. S.U.N.Y.
Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir.
2001). While individuals may be sued under the ADA in their
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official capacities, a plaintiff must plead that the defendant
“was motivated by discriminatory animus or ill-will based on
the plaintiff's disability.” See Keitt v. New York City, 882 F.
Supp. 2d 412, 455-57 (S.D.N.Y. 2011) (holding that under
Garcia, claims for money damages against state officials in
their official capacities under Title II of the ADA are barred by
the Eleventh Amendment, absent a showing that a violation
was motivated by discriminatory animus or ill will due to the
disability) (citing Garcia, 280 F.3d at 112).
Even assuming Tarver was disabled under the ADA, the
Complaint fails to state a viable cause of action against
any individual defendant because Tarver does not allege
facts to plausibly suggest that any defendant discriminated
against him. See Wenger v. New York State Dep't of Health,
No. 5:14-CV-885 (DNH/TWD), 2015 WL 3397958, at *5
(N.D.N.Y. May 26, 2015) (dismissing the discrimination
claim under ADA where the complaint “provide[d] few
specifics regarding [the plaintiff's] care, the services of which
he was allegedly deprived, or programs in which he was
allegedly not allowed to participate, or any reasons therefor
articulated by [the defendants”).
*15 Although “Title II [...] suits for prospective injunctive
relief may ... proceed against individual officers in their
official capacity,” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009), an inmate's request for injunctive relief becomes moot
when the inmate is released from custody. See Roque v.
Armstrong, 392 F. Supp. 2d 382, 386-87 (D. Conn. 2005)
(finding that the plaintiff's request for injunctive relief under
the ADA for the provision of medical care became moot when
he was discharged from prison) (citations omitted); see also
McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999)
(noting that an inmate's claim for prospective injunctive relief
regarding conditions of confinement is rendered moot upon
his release from confinement). In April 2020, Tarver notified
the Court that he was no longer incarcerated. (See Dkt. No.
15.)
Accordingly, the Court recommends dismissing Tarver's
ADA claims for monetary damages and injunctive relief for
failure to state a claim upon which relief may be granted.
J. Remaining Claims
The remaining constitutional and state law claims are asserted
by Tarver against “Unknown Corrections Officers,” and
“Unknown Medical and Dental Workers.” (See Dkt. No. 1 at
1; Dkt. No. 1-1 at 1.)
The Complaint fails to identify any corrections officers or
medical personnel involved in Tarver's medical treatment,
dental treatment, the decision to confine Tarver to keeplock,
decisions related to Tarver's mail or property, decisions
related to grievances or visitors at the facility, or any of other
remaining alleged constitutional violations. As previously
discussed, the use of the terms, “they,” “corrections officers,”
“medical and dental workers,” or “all facility employees”
as a name for alleged defendants is not adequate to state a
claim against a “person” as required in Section 1983 actions.
See Part.III.C., supra.; see also Ferguson, 1991 WL 115759,
at *1 (“The allegations plaintiff makes against the Otisville
Correctional Facility Medical Staff are not sufficient to state
a cause of action.”). Moreover, the Court notes that while
the Complaint includes a plethora of constitutional claims
arising from Tarver's confinement at Albany County C.F.,
the pleading lacks any specificity related to those claims
including dates, times, and locations of the alleged violations.
Because the Complaint fail to identify any individuals
personally involved in the remaining alleged constitutional
violations and state law claims, the Court recommends
dismissing the remaining claims without prejudice and with
leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted. See Martin v. UConn Health Care, No.
3:99-CV-2158, 2000 WL 303262, at *1 (D. Conn. Feb. 9,
2000) (giving the plaintiff leave to file an amended complaint
“provided he can identify at least one physician or other
health care provider who has been deliberately indifferent
to his medical needs”) (citing Soto v. Brooklyn Correctional
Facility, 80 F.3d 34 (2d Cir. 1996) (permitting plaintiff to file
amended complaint where inmate named only correctional
facility and was not aware of the requirement that he name
individuals)). 13
IV. MOTIONS TO APPOINT COUNSEL
*16 It is well-settled that there is no right to appointment
of counsel in civil matters. Burgos v. Hopkins, 14 F.3d
787, 789 (2d Cir. 1994). Title 28 of United States Code
Section 1915 specifically provides that a court may request an
attorney to represent any person “unable to afford counsel.”
28 U.S.C. § 1915(e)(1). Appointment of counsel must be done
carefully in order to preserve the “precious commodity” of
volunteer lawyers for those litigants who truly need a lawyer's
assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73
(2d Cir. 1989).
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In Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d
Cir. 1994), the Second Circuit reiterated the factors that
a court must consider in ruling upon such a motion. In
deciding whether to appoint counsel, the court should first
determine whether the indigent's position seems likely to be
of substance. If the claim meets this threshold requirement,
the court should then consider a number of other factors in
making its determination. See id. at 1341 (quoting Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)); Sawma v.
Perales, 895 F.2d 91, 95 (2d Cir. 1990). Among these are
[t]he indigent's ability to investigate
the crucial facts, whether conflicting
evidence implicating the need for
cross-examination will be the major
proof presented to the fact finder, the
indigent's ability to present the case,
the complexity of the legal issues, and
any special reason ... why appointment
of counsel would be more likely to lead
to a just determination.
Hodge, 802 F.2d at 61. None of these factors are controlling,
however, and each case should be decided on its own facts. Id.
Here, the main facts upon which this Court may base its
decision as to whether this lawsuit is of substance are those
portions of Plaintiffs’ Complaint wherein they state the facts
surrounding their claims. Where a plaintiff does not provide
a Court with evidence, as opposed to mere allegations,
relating to his or her claims, such party does not meet the
first requirement imposed by the Second Circuit relative
to applications seeking appointment of pro bono counsel.
See Harmon v. Runyon, No. 96-CV-6080, 1997 WL 118379
(S.D.N.Y. Mar. 17, 1997).
Furthermore, even if the Court were to assume that this case
may be of substance, these claims do not present overly
complex issues. In addition, the record currently before the
Court indicates that Plaintiffs have an ability to investigate
pertinent facts and present the case. While it is possible,
should this case proceed to a trial, that there will be conflicting
evidence implicating the need for cross-examination, as is
the case in many actions brought by pro se litigants, “this
factor alone is not determinative of a motion for appointment
of counsel.” Velasquez v. O'Keefe, 899 F. Supp. 972, 974
(N.D.N.Y. 1995). Further, if this case proceeds to trial, it is
highly probable that this Court will appoint trial counsel at
the final pretrial conference. This Court is not aware of any
special reason why appointment of counsel at this time would
be more likely to lead to a just determination of this litigation.
For all of these reasons, the Court finds that appointment
of counsel is unwarranted and Plaintiffs’ motions are denied
without prejudice. (Dkt. Nos. 6, 21.) Plaintiffs may file
another motion for appointment of counsel in the event
that they can demonstrate that, in light of specific changed
circumstances, consideration of the above factors warrants
granting the application.
*17 WHEREFORE, it is hereby
ORDERED that Tarver's IFP Application (Dkt. No. 20) is
GRANTED; 14 and it is further
RECOMMENDED that Plaintiffs’ claims against City of
Albany Police Department and Albany County Corrections
Facility be DISMISSED WITH PREJUDICE pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted; and
it is further
RECOMMENDED that the Clerk be directed to revise the
docket sheet to ADD Albany County as a defendant in this
action; and it is further
RECOMMENDED that Tarver's Fourteenth Amendment
excessive force and failure-to-protect claims against C.O.
Burns and Sgt. Remillard SURVIVE initial review and
require a response; and it is further
RECOMMENDED that LaPietra's First Amendment Monell
claim against Albany County SURVIVES initial review and
requires a response; and it is further
RECOMMENDED that the remaining claims be
DISMISSED WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND 15 pursuant to 28 U.S.C. § 1915(e)(2)
(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon
which relief may be granted; and it is further
ORDERED that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
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13261-7367. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was served on all
opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper
certificate of service will be stricken from the docket.
Plaintiffs must comply with any requests by the Clerk's Office
for any documents that are necessary to maintain this action.
All parties must comply with Local Rule 7.1 of the Northern
District of New York in filing motions. Plaintiffs are also
required to promptly notify the Clerk's Office and all
parties or their counsel, in writing, of any change in his
or her address; their failure to do so may result in the
dismissal of the action; and it is further
*18 ORDERED that Plaintiffs’ motions for counsel (Dkt.
Nos. 6, 21) are DENIED WITHOUT PREJUDICE; and it
is further
ORDERED that the Clerk of the Court shall serve a copy of
this Report-Recommendation and Order on Plaintiffs, along
with copies of the unpublished decisions cited herein in
accordance with the Second Circuit's decision in Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. 16 Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 87 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72, 6(a).
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 5891888
Footnotes
1 Tarver was incarcerated at Mid-State Correctional Facility at the time the action was commenced. See http://
nysdoccslookup.doccs.ny.gov (DIN 18A1582) (last visited Sept. 27, 2020). Therefore, 28 U.S.C. § 1915A is
applicable. See Rogers v. New York City Police Dep't, No. 12 CV 3042, 2012 WL 4863161, at *1 n.3 (E.D.N.Y.
Oct. 12, 2012) (a plaintiff who has been released from incarceration is still considered a prisoner under §
1915A if he was imprisoned at the time the action was commenced); see also Brown v. Jacobson, No. 98 Civ.
0565, 1999 WL 1125122, at *5 (S.D.N.Y. Dec. 8, 1999) (prisoner's complaint subject to heightened scrutiny
under the Prison Litigation Reform Act of 1999 even after release from custody because it concerns prison
officials’ misconduct).
2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
3 The Complaint includes exhibits. (See Dkt. No. 1-1 through Dkt. No. 1-6.) To the extent that the exhibits
are relevant to the incidents described in the Complaint, the Court will consider the Complaint as well as
any documents attached. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (the
complaint is deemed to include any written instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference).
4 LaPietra is “part of an independent living program for a health-related reason.” (Dkt. No. 1-1 at 5.) Her
apartment is on the second floor.
5 According to Tarver, he was “coming down the stairs, and had the door to stairwell open a crack, and he and
the officer saw each other through the glass cutout window in the door to the house/vestibule. The officer
pushed in on the door to the house and entered into the vestibule while [Tarver] was still in the stairwell. At
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some point, he asked [Tarver] what he was doing there and he said he lived there; He cuffed him, sat him
down on the outside stoop, asked what was in his pocket, and he told them the keys and his wallet and they
took the keys and wallet out of his pocket and immediately went in the other 2 doors without even checking
on who he was, that he had a parole condition, or where he lived, which could have been easily ascertained.”
6 LaPietra continues: “If there were parole officers there they were not there when I got there and they were
not the ones who originally went into the apartment or conducted a search. They city officer who entered did
not have a warrant to enter, but they had a witness [Tarver's] counsel later told me. If there was a witness
I saw no signs of them.” (Dkt. No. 1-1 at 9.) “It would have been more than reasonable to doubt anything
[Tarver] said and because the officer had access to [Tarver's] wallet and had him handcuffed it would have
been reasonable enough to ascertain whose residence it was, and that [Tarver] had a parole condition, to
contact his parole officer, or to obtain a warrant. None of this was done.” Id. at 9-10.
7 The complaint further states that “They also called and invited parole officers to the scene to illegally search
the residence as well. Someone is responsible for the arrival of officers in plain clothes and parole officers
who also illegally searched the residence.” (Dkt. No. 1-1 at 11.)
8 While not entirely clear, it appears Plaintiffs filed a “late notice of claim in regard to the Albany Police and
Albany County Correctional Facility violating [their] civil rights,” as alleged in Complaint but State Court Judge
Hon. Kimberly A. O'Conner “denied” that request. (Dkt. No. 1-6 at 1.) The Court notes, however, “New
York's General Municipal Law has only vested the power to grant notice of claim extensions to the New
York State supreme courts and county courts.” Farquharson v. Lafayette, No. 19-cv-3446 (NSR), 2020 WL
1699985, at *13 (S.D.N.Y. Apr. 7, 2020) (citing N.Y. Gen. Mun. Law § 50-e(7)). Thus, “[f]ederal courts are
not authorized to grant such extensions.” Id. (citing Davis v. City of New York, No. 12 Civ. 3297 (PGG), 2018
WL 10070540, at *13 (S.D.N.Y. Mar. 30, 2018) (“New York has given the power to extend deadlines for
serving [a] notice of claim to state supreme courts and county courts, and federal courts are not authorized to
grant such extensions.”); Dayton v. City of Middletown, 786 F. Supp. 2d 809, 824-25 (S.D.N.Y. 2011) (“[T]his
Court lacks jurisdiction, pursuant to § 50-e(7), to deem Plaintiffs’ 5/30/09 Amended Notice of Claim for their
state law claims against Orange County timely filed, or to grant an extension of time to file a late notice of
claim.”). The Court further notes that to the extent Plaintiffs seek to collaterally attack a state court's judgment
rendered before filing this action in federal court, such claims may be barred under Rooker-Feldman doctrine,
which divests the federal court of jurisdiction to consider actions that seek to overturn state court judgments.
See generally District of Colombia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923). This doctrine also bars the federal court from considering claims that are
“inextricably intertwined” with a prior state court determination. Fernandez v. Turetsky, No. 12-CV-4092, 2014
WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005)).
9 See Williams, 2011 WL 13128209, at *1 (giving the plaintiff leave to file an amended complaint to name
the individuals responsible for the alleged deprivation of his rights and noting if “if plaintiff cannot identify
the individual defendant(s) within the time allowed in this order or because they were undercover, he may
designate the individual as John (or Jane) Doe #1, and so on.”).
10 Inasmuch as the Court is recommending dismissal of Plaintiffs’ Fourth Amendment claims without prejudice,
the Court does not address the merits, timeliness, and/or whether any such claims are barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994).
11 It is unclear whether Tarver was a pretrial detainee or was serving a sentence at the time of the events
complained of in the complaint. For purposes of this initial review, the Court assumes that Tarver was a
pretrial detainee when his claims arose.
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LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 15
12 Tarver does not specify what portions of the ADA are triggered. Reading the complaint liberally, it appears
that he brings this action under Title II.
13 Rule 10(a) of the Federal Rules of Civil Procedure provides that, “the title of the complaint must name all the
parties.” Fed. R. Civ. P. 10(a). A party not named in the caption of the complaint is not a party to the action.
Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a
party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned
in the body of the complaint should be deemed to be defendants to which claims”). “If people are not also
named in the caption of the [ ] complaint, they will not be defendants in the case.” Whitley v. Krinser, No.
06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007); see also Robles v. Armstrong, No. 3:03-
CV-1634, 2006 WL 752857, at *1 n.1 (D. Conn. Mar. 17, 2006) (“The plaintiff refers to John Doe/Jane Doe
of the Correctional Managed Health Care Program and John Doe/Jane Doe Members of the Revitalization
Committee in the body of the amended complaint. Rule 10(a) of the Federal Rules of Civil Procedure requires
that all defendants be listed in the caption of the complaint. Because the John and Jane Does are not listed
in the caption of the amended complaint, they are not defendants and the court does not consider claims
against them.”). In this instance, while LaPietra claims that she notified certain individuals about “the issues”
at Albany County C.F., including Newman, Lyons, and Trimble, see Dkt. No. 1-1 at 136, 139; Dkt. No. 1-6 at
22, the aforementioned individuals are not identified as defendants in the caption of the complaint or the list
of parties. Thus, the Court will not construe the complaint to include any claims or causes of action against
these individuals. For the same reason, the Court will not construe the complaint to include any claims or
cause of actions against other private individuals referenced in the body of the complaint, including attorneys
and grocery store employees, as they are not identified as defendants in the caption of the complaint or list
of parties.
14 Tarver should note that, although the Court has granted his IFP Application, he will still be required to pay
fees that he may incur in this action, including copying and/or witness fees.
15 If the District Court approves this Report-Recommendation, and if Plaintiffs choose to file an amended
complaint, any amended complaint must comply with Rules 8 and 10 of the Federal Rules. Any such amended
complaint must be signed by both Plaintiffs and 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 of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they
were tangibly connected to those deprivations. See Bass, 790 F.2d at 263. 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.”).
16 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P.
6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P.
6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 134 of 240

LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 7021589
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrea LAPIETRA, Individually and as Power
of Attorney, and Deashon Tarver, Plaintiffs,
v.
CITY OF ALBANY POLICE
DEPARTMENT, et al., Defendants.
9:19-CV-1527
|
Signed 11/30/2020
Attorneys and Law Firms
Andrea LaPietra, Albany, NY, pro se.
Deashon Tarver, Albany, NY, pro se.
DECISION and ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 This pro se action was referred to the Hon. Thérèse W.
Dancks, United States Magistrate Judge, to review Tarver's
in forma pauperis application 1 and for an initial review of
the Complaint pursuant to 28 U.S.C. § 1915(e). Judge Dancks
issued a Report-Recommendation and Order on October 5,
2020. Dkt. No. 24. On October 16, 2020, plaintiffs requested
an extension of time to file objections, citing a delay in
receipt of the Report-Recommendation and Order, limited
resources due to the coronavirus pandemic, the restriction
on library access because of the coronavirus pandemic, a
death in the family of one of the plaintiffs, and because
the plaintiffs were intending to seek the help of an attorney
regarding their objections. This application was granted by
Judge Dancks on October 19, 2020, and plaintiffs were given
until November 19 2020 to file their objections. On November
19, 2020, plaintiffs filed a letter with the Court requesting an
additional 2-3 week extension to file objections, citing that
they were intending to consult with a specified attorney and
because they intended to obtain information from Tarver's
doctor that they wanted to incorporate in their objections.
Plaintiffs’ request for an additional extension of time to
file objections is denied. They have failed to demonstrate
good cause for an additional extension of time. Further,
Plaintiffs will suffer no prejudice by the denial of this request
because Judge Dancks recommends that certain claims be
allowed to proceed, that others be dismissed without prejudice
and with leave to replead, and that plaintiffs’ motion for
appointment of counsel (which may now be moot) be denied
with leave to renew. While Judge Dancks recommends that
claims against the Albany Police Department and the Albany
County Corrections Facility be dismissed with prejudice, she
also recommends that these claims be allowed to proceed
against the real parties in interest, the City of Albany and
Albany County, respectively. In this regard, Judge Dancks
recommends that the claims against the Albany Police
Department be allowed to be repled against the City of
Albany, and that the County of Albany be added to the docket
as the real party in interest in the claims against the Albany
County Corrections Facility.
Because plaintiffs expressed an intention to file objections but
waited until the last day to request an extension, the Court will
deem them to have filed a general objection and will review
Judge Dancks's recommendations accordingly.
II. STANDARD OF REVIEW
When objections to a magistrate judge's report and
recommendation are lodged, the district court makes a “de
novo determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” See 28 U.S.C. § 636(b)(1). After reviewing the
report and recommendation, the Court may “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge. The judge may also receive
further evidence or recommit the matter to the magistrate
judge with instructions.” 28 U.S.C. § 636(b).
III. DISCUSSION
*2 After conducting a de novo review of the issues addressed
by Judge Dancks in her Report-Recommendation and Order,
the Court adopts the recommendations for the reasons stated
in Judge Dancks's thorough report.
IV. CONCLUSION
For the reasons discussed above, plaintiffs’ letter motion
for an extension of time to file objections to the Report-
Recommendation and Order (Dkt. No. 31) is DENIED.
Further, the Court ACCEPTS and ADOPTS Judge Dancks's
recommendations in the Report-Recommendation and Order
(Dkt No. 24). Therefore, it is hereby
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 135 of 240

LaPietra v. City of Albany Police Department, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
ORDERED that plaintiffs’ claims against City of Albany
Police Department and Albany County Corrections Facility
are DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted; and it is
further
ORDERED that the Clerk is directed to revise the docket
sheet to ADD Albany County as a defendant in this action;
and it is further
ORDERED that Tarver's Fourteenth Amendment excessive
force and failure-to-protect claims against C.O. Burns and
Sgt. Remillard SURVIVE initial review and require a
response; and it is further
ORDERED that LaPietra's First Amendment Monell claim
against Albany County SURVIVES initial review and
requires a response; and it is further
ORDERED that the remaining claims are DISMISSED
WITHOUT PREJUDICE AND WITH LEAVE TO
AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
If plaintiffs choose to file an amended complaint, any
amended complaint must comply with Rules 8 and 10 of the
Federal Rules. Any such amended complaint must be signed
by both plaintiffs and 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 of
the named defendants in the deprivations alleged in sufficient
detail to establish that they were tangibly connected to those
deprivations. 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.
If plaintiffs intend to file an amended complaint they must
do so within thirty (30) days of the date of this Decision and
Order. If they fail to timely do so, the case will proceed on the
remaining claims in the Complaint.
The Clerk can terminate all defendants EXCEPT Albany
County, C.O. Burns, and Sgt. Remillard.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 7021589
Footnotes
1 The Court previously granted LaPietra's motion to proceed in forma pauperis and dismissed any claims that
LaPietra asserted on behalf of Tarver. (Dkt. No. 4 at 4-5.)
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 136 of 240

Miller v. Stallworth, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 3974730
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Stephen MILLER, Plaintiff,
v.
Charles STALLWORTH, et al., Defendants.
No. 3:17-cv-01711 (JAM)
|
Signed 08/20/2018
Attorneys and Law Firms
Stephen Miller, Bridgeport, CT, pro se.
James A. Mahar, Ryan Ryan DeLuca LLP, Bridgeport, CT,
for Defendants.
ORDER GRANTING MOTION TO DISMISS
Jeffrey Alker Meyer, United States District Judge
*1 Plaintiff Stephen Miller brings this action against
defendants Charles Stallworth and East End Baptist
Tabernacle for what the Court construes to be claims for false
arrest and malicious prosecution in violation of the Fourth
Amendment pursuant to 42 U.S.C. § 1983. Defendants have
moved to dismiss this action.
The Court will grant defendants' motion to dismiss for three
reasons. First, plaintiff has not alleged facts that give rise to
plausible grounds for relief. Second, because the complaint
alleges that plaintiff pleaded no contest to charges stemming
from his arrest, the Court may not grant money damages under
the rule of Heck v. Humphrey, 512 U.S. 477 (1994). Third,
because plaintiff has not alleged a favorable termination of
the charge or charges stemming from his arrests, he cannot
sustain a claim for false arrest or malicious prosecution.
BACKGROUND
Plaintiff has filed a complaint titled “Damages for False
Charges.” Doc. #1 at 1. The complaint names two defendants:
Rev. Charles Stallworth and the East End Baptist Tabernacle
Church. It states that plaintiff “brings this action seeking
damages following a no contest plea due to the payment by
defendants to off duty Bridgeport police officer Roger Reid
hired to arrest the plaintiff if he came to church services”
at the East End Baptist Tabernacle Church. Ibid. (¶ 1). The
complaint goes on to describe how plaintiff went to the church
on June 21, 2015, after having attended a service at the church
one week before without incident. Plaintiff appeared at the
church wearing a T-shirt stating: “5 COPS MURDERED
ERIC GARNER,” which “induced friendly comments by
many African Americans.” Ibid. (¶ 2).
Officer Reid (who is not named as a defendant) was standing
in front of the church when plaintiff arrived. Plaintiff was in
the lobby of the church speaking with two church members
when Officer Reid approached him with a piece of paper and
asked to speak to him outside. Officer Reid then spoke to
plaintiff about allegedly harassing emails, and plaintiff denied
sending emails. Officer Reid called for back-up and then
arrested plaintiff, and plaintiff's car was towed away.
About six weeks later, Officer Reid arrested plaintiff again
on August 2, 2015, at a Stop and Shop supermarket in
Bridgeport. According to plaintiff, “[t]he surveillance film in
the store was altered in spite of a court order to preserve the
film proving these charges false too.” Id. at 2 (¶ 7).
In both cases witnesses lied for
the police story. These lies were
voluntary which concerned me for the
integrity of a jury regardless of the
evidence. With the court's disregard
of the speedy trial motions and the
destruction of the exculpatory film I
decided a trial was too risky; pleading
no contest.
Id. at 2 (¶ 8).
The complaint goes on to describe plaintiff's “PURPOSE
TO ATTEND THIS AFRICAN AMERICAN CHURCH” and
his “concern for the endless injustice of African Americans
being murdered by police officials without any charges filed
by district attorneys or United State's attorneys regardless of
glaring proof was being protested in an absurd, ineffective
manner.” Id. at 3. “I don't know these churches or their pastors
so I approached Bishop John Diamond to explain a better
strategy,” and “Rev. Diamond referred me to defendant Rev.
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Miller v. Stallworth, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Stallworth explaining Stallworth was a political leader.” Ibid.
The complaint concludes with the following two paragraphs:
*2 Recently the Kaepernick protest was reversed by the
media never using the accurate work “murder” replaced by
“brutality”. Each black victim is dead none were alive from
brutality but black leaders ignore this glaring fact.
Never using the word “murder” by anybody proves the
power of the media putting the entire country in a deep
trance. Being shoved or hit brutally results rarely in death.
Ibid. The complaint seeks $200,000 and attorney's fees. Ibid.
On January 29, 2018, plaintiff moved to file an amended
complaint to seek “punitive damages of $153,000,000 for the
violation of the Plaintiff's civil liberties, harassment, emotion,
and financial distress.” Doc. #16 at 1. Plaintiff alleges that
“[o]nly the defendant can explain the arrest for the court,”
and that he was the victim of “a deliberate trap to arrest the
plaintiff” and that the “proceedings were paid for and ordered
by the defendant herein.” Id. at 2. “It is not conclusory to
conclude by deductions the events that the plan was ready
before the plaintiff arrived.” Ibid. The plaintiff adds that “[t]he
charges for my arrest were never dismissed.” Id. at 4 (¶ 6).
The balance of plaintiff's amended complaint alleges facts
similar to the initial complaint concerning his arrest and
includes many allegations about plaintiff's concern for the
mistreatment of African Americans. It concludes stating that
“[t]he defendant is a leader of many pastors who bleed their
congregations. He feared the plaintiff would expose a rich
insidious scam conspiracy by all pastors encouraging ‘no
justice no peace’ by Al Sharpton, a known swindler Democrat
operator?” Id. at 8. Defendants have moved to dismiss the
complaint pursuant to Fed. R. Civ. P. 12(b)(6).
DISCUSSION
The background principles governing a Rule 12(b)(6) motion
to dismiss are well established. The Court must accept as
true all factual matters alleged in a complaint, although a
complaint may not survive unless the facts it recites are
enough to state plausible grounds for relief. See, e.g., Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron
Corp., 770 F.3d 170, 177 (2d Cir. 2014). This “plausibility”
requirement is “not akin to a probability requirement,” but it
“asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678. Because a court
should focus on what facts a complaint alleges, a court is “not
bound to accept as true a legal conclusion couched as a factual
allegation” or “to accept as true allegations that are wholly
conclusory.” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014).
In short, the Court's role is to determine if the complaint—
apart from any of its conclusory allegations—alleges enough
facts to state a plausible claim for relief.
The Court liberally construes the pleadings of a pro se party in
a non-technical manner to raise the strongest arguments that
they suggest. See, e.g., McLeod v. Jewish Guild for the Blind,
864 F.3d 154, 157 (2d Cir. 2017) (per curiam ). Still, a pro se
complaint may not survive dismissal if its factual allegations
do not meet the basic plausibility standard. See, e.g., Fowlkes
v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015).
*3 Although the complaint does not cite any particular law
that defendants violated, I construe the complaint to allege
claims for false arrest and malicious prosecution in violation
of the Fourth Amendment. See Spak v. Phillips, 857 F.3d
458, 461 n.1 (2d Cir. 2017) (describing elements of malicious
prosecution claim); Edelman v. Page, 2015 WL 1395893,
at *11 (D. Conn. 2015) (describing elements of false arrest
claim), aff'd sub nom, Edleman v. Schultz, 683 F. App'x. 60
(2d Cir. 2017). 1
Lack of Factual Allegations Giving Rise to Plausible
Grounds for Relief
The complaint does not allege facts that give rise to plausible
grounds for relief. The factual allegations of a complaint
must be “enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Moreover, “[a] court may dismiss a claim as
‘factually frivolous’ if the sufficiently well-pleaded facts are
‘clearly baseless’—that is, if they are ‘fanciful,’ ‘fantastic,’
or ‘delusional.’ ” Gallop v. Cheney, 642 F.3d 364, 368 (2d
Cir. 2011) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33
(1992) ).
Other than a bare allegation that defendants “paid” Officer
Reid to arrest plaintiff (Doc. #1 at 1), the complaint alleges no
other actions by any of the defendants. Plaintiff asks the Court
to make “deductions” (Doc. #16 at 2) from the circumstances
of Officer Reid's presence that defendants must have paid him
off or improperly influenced him to arrest plaintiff. But such
deductions are no more than speculation that does not rise
to the level of stating plausible grounds for relief. See, e.g.,
Gallop, 642 F.3d at 368–69 (affirming dismissal of complaint
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Miller v. Stallworth, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
alleging that explosion at the Pentagon on September 11,
2001, was not the result of a hijacked airplane crashing into
the Pentagon but was the result of explosives planted within
the Pentagon at the conspiratorial behest of high-ranking
government officials); see also Betts v. Shearman, 751 F.3d
78, 84–86 (2d Cir. 2014) (affirming dismissal of conclusory
claim that a private actor acted under color of state law to have
police arrest the plaintiff).
The Rule of Heck v. Humphrey
*4 Even assuming that plaintiff alleged plausible grounds
for relief against the church or its pastor, plaintiff alleges that
he pleaded no contest to these charges and that the charges
for his arrest were never dismissed. In Heck v. Humphrey, 512
U.S. 477 (1994), the Supreme Court held that in order for a
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Id. at 486–87. If the Court were to rule in plaintiff's
favor on his claims of false arrest or malicious prosecution,
this would surely impugn the validity of the charges to
which he himself alleges he has entered a plea of no contest.
Accordingly, plaintiff's claims for false arrest and malicious
prosecution are barred by the rule of Heck v. Humphrey. 2
Lack of Favorable Termination
Lastly, defendants argue that the lack of a favorable
termination of the charges precludes plaintiff's complaint. As
to plaintiff's malicious prosecution claim, it is clear that the
lack of a favorable termination of charges precludes the claim.
See Spak, 857 F.3d at 461 n.1. As to plaintiff's false arrest
claim, it is a closer issue. In view that an arrest may never
ripen into formal criminal charges, there is good reason to
doubt why a claim for false arrest—as distinct from a claim
for malicious prosecution—should invariably be subject to a
requirement that a plaintiff prove a favorable termination of
an ensuing prosecution. See Manuel v. City of Joliet, Ill., 137
S. Ct. 911, 918 (2017) (noting that “[t]he Fourth Amendment
prohibits government officials from detaining a person in the
absence of probable cause,” and “[t]hat can happen when the
police hold someone without any reason before the formal
onset of a criminal proceeding”) (emphasis added); Weyant
v. Okst, 101 F.3d 845, 854 (2d Cir. 1996) (false arrest claim
under New York law does not require proof of favorable
termination; “a person who asserts that he has been arrested
without a warrant and without probable cause—a claim that
does not seek to cast doubt upon judicial proceedings and is
ripe upon arrest—need not insist that a prosecution be brought
against him in order that he be allowed to pursue a claim
for false arrest”); see also Ruttkamp v. De Los Reyes, 2012
WL 3596064, at *12 & n.21 (D. Conn. 2012) (noting that
a favorable termination requirement for a false arrest claim
would not logically apply if the only reason that subsequent
proceedings do not terminate in an arrestee's favor is because
of the police's postarrest discovery of new evidence not
known to police at the time of a baseless arrest).
Still, notwithstanding such concerns, the Second Circuit has
ruled that a false arrest claim under Connecticut law requires
proof of a favorable termination. See Miles v. City of Hartford,
445 F. App'x. 379, 383 (2d Cir. 2011) (citing Roesch v.
Otarola, 980 F.2d 850, 952 (2d Cir. 1992) ). Moreover, the
Connecticut Supreme Court has also observed that “[t]he
same reasoning which makes conviction a defense in an
action for malicious prosecution would apply as strongly to
such a cause of action for false imprisonment as is here
asserted, and if conviction is a defense in one, so it should
be in the other.” Clewley v. Brown, Thomson, Inc., 120 Conn.
440, 444 (1935); see also Jordan v. Town of Windsor, 2018
WL 1211202, at *6 (D. Conn. 2018) (same).
I am required to follow this precedent and to conclude for
purposes of a constitutional claim of false arrest that arises
in Connecticut that favorable termination of a prosecution
is a required element of the cause of action for false arrest.
Although plaintiff vacillates between whether he pleaded no
contest to the charges from his arrest of June 21, 2015, or
whether those charges remain pending (see supra footnote 2),
he has not alleged that any charges from his arrest of June 21,
2015, have been favorably terminated.
CONCLUSION
*5 For the reasons set forth above, defendants' motion to
dismiss (Doc. #17) is GRANTED with prejudice. Plaintiff's
motion to amend his complaint (Doc. #16) is DENIED on
the ground that any amendment would be futile. See Betts,
751 F.3d at 86 (affirming denial of leave to replead where
plaintiff “identified no facts that, if alleged, would bolster his
allegations that the officers coached [defendant] to make false
allegations”). Plaintiff's remaining pending motions (Docs.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 139 of 240

Miller v. Stallworth, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
#18, #19, #20, #28, #29, #30, #31, #32, #33, #34, #35, #36
and #37) are DENIED as moot. The Clerk of Court shall close
this case.
It is so ordered.
All Citations
Not Reported in Fed. Supp., 2018 WL 3974730
Footnotes
1 To the extent that the complaint might be construed to allege any state law claims, the Court would have no
federal diversity jurisdiction, because the parties are all from the State of Connecticut. See 28 U.S.C. § 1332.
The Court otherwise declines to exercise supplemental jurisdiction over any state law claims.
2 According to the Connecticut Judicial Branch, plaintiff was arrested on August 2, 2015, and subsequently
found guilty following pleas of nolo contendere on charges of breach of peace and interference with
an officer on September 19, 2017. See State of Connecticut Judicial Branch, Criminal/Motor Vehicle
Case Detail (Stephen Miller, Birth Year 1942) http://www.jud2.ct.gov/crdockets/CaseDetailDisp.aspx?
source=Pending&Key=f25f44eb-e001-4b54-aa6a-8127f3899fc0 (last accessed August 20, 2018). There is
no record on the Judicial Branch website of plaintiff's alleged arrest on June 21, 2015. Plaintiff has filed many
motions on this docket, including one in which he now asserts that his “no contest” plea was solely for the
charges stemming from his arrest at Stop & Shop on August 2, 2015, and not for “the church case.” Doc.
#19 at 2 (¶ 2); see also Doc. #33 at 1 (stating as to the “church case” that “[t]here is no pending trial and the
judge refused to dismiss the charges”). Even assuming this to be so, it would not affect the Court's alternative
determinations that plaintiff has not alleged any facts in either his initial or proposed amended complaint that
would plausibly support a claim against either defendant, much less shown that the charges from his arrest
at the church have been terminated in his favor.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 140 of 240

Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022)
RICO Bus.Disp.Guide 13,617
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 819281
United States District Court, N.D. New York.
Kevin MURPHY, Plaintiff,
v.
ONONDAGA COUNTY et al., Defendants.
5:18-cv-1218 (GLS/CFH)
|
Signed 03/18/2022
Attorneys and Law Firms
FOR THE PLAINTIFF:JEFFREY R. PARRY, ESQ., Office
of Jeffrey R. Parry, 7030 East Genesee Street, Fayetteville,
NY 13066, JARROD W. SMITH, ESQ., Office of Jarrod
W. Smith, 11 South Main Street, P.O. Box 173, Jordan, NY
13080.
FOR THE DEFENDANTS: JOHN E. HEISLER, JR., ESQ.,
Onondaga County, The Onondaga Sheriff's Department, Carl
Hummel, William Fitzpatrick, Stefano Cambareri, Melanie S.
Carden & Lindsey M. Luczka, Onondaga County Department
of Law, John H. Mulroy Civic Center, 421 Montgomery
Street, 10th Floor, Syracuse, NY 13202, ROBERT J.
SMITH, ESQ., ELIZABETH A. HOFFMAN, ESQ., Eugene
Conway, Joseph Ciciarelli, Michael Dickinson, Jammie
Blumer, Jonathan Anderson, Joseph Peluso, Roy Gratien
& Jason Cassalia, Costello, Cooney & Fearon, PLLC, 211
W. Jefferson Street, Syracuse, NY 13202, KATHERINE
STEWART, ESQ., 500 Plum Street, Suite 300, Syracuse,
NY 13204, JOHN L. MURAD, JR., ESQ., ANNELIESE
ALIASSO, ESQ., Bryan K. Edwards & Westcott Events,
LLC, Hancock Estabrook, LLP, 1800 AXA Tower I, 100
Madison Street, Syracuse, NY 13202, CHRISTINA M.
VERONE JULIANO, ESQ., Goldberg, Segalla Law Firm,
5786 Widewaters Parkway, Syracuse, NY 13214.
MEMORANDUM-DECISION AND ORDER
Gary L. Sharpe, Senior District Judge
I. Introduction
*1 Plaintiff Kevin Murphy commenced this civil rights
action against defendants Onondaga County, The Onondaga
County Sheriff's Department, Eugene Conway, Joseph
Ciciarelli, Michael Dickinson, 1 Jammie Blumer, Jonathan
Anderson, Joseph Peluso, Roy Gratien, Jason Cassalia, Carl
Hummel, William Fitzpatrick, Stefano Cambareri, Melanie S.
Carden, Lindsey M. Luczka, Bryan K. Edwards, and Westcott
Events, LLC, pursuant to 42 U.S.C. §§ 1983 and 1985,
18 U.S.C. § 1964 (Civil Racketeer Influenced and Corrupt
Organizations (RICO) Act), and New York State law, with the
individual defendants all being sued in their individual and
official capacities. (Am. Compl., Dkt. No. 60.) 2
Pending before the court are motions for judgment on the
pleadings filed by Conway (Dkt. No. 88), Blumer, (Dkt.
No. 90), Peluso, (Dkt. No. 92), Gratien, (Dkt. No. 94),
Anderson, (Dkt. No. 96), Cassalia, (Dkt. No. 98), Ciciarelli,
(Dkt. No. 100), and Dickinson, (Dkt. No. 102) (hereinafter,
collectively referred to as the “Sheriff Defendants”), a motion
to amend the amended complaint filed by Murphy, (Dkt. No.
123), a motion to dismiss the amended complaint filed by
Edwards and Westcott, (Dkt. No. 143), a motion to amend
the RICO statement filed by Murphy, (Dkt. No. 157), a
motion to construe their prior motion to dismiss as against
any second amended complaint and/or to deny the second
amended complaint filed by Edwards and Westcott, (Dkt. No.
144), a motion requesting guidance in responding to Murphy's
amended RICO statement filed by the Sheriff Defendants,
(Dkt. No. 155), a motion informing the court of alleged
“improprieties” by defendants, requesting that the amended
RICO statement be accepted as timely, and seeking to file
a further amended complaint filed by Murphy, (Dkt. No.
156), an August 30, 2021, letter motion seeking relief that,
admittedly, is unclear to the court filed by Murphy, (Dkt.
No. 159), and, finally, another motion to further amend the
amended complaint filed by Murphy, (Dkt. No. 170).
For the reasons that follow, the Sheriff Defendants’ Rule
12(c) motions, (Dkt. No. 88; Dkt. No. 90; Dkt. No. 92; Dkt.
No. 94; Dkt. No. 96; Dkt. No. 98; Dkt. No. 100; Dkt. No.
102), are granted in part and denied in part, as described
below. Edwards and Westcott's Rule 12(b)(6) motion (Dkt.
No. 143), is granted. Murphy's motion to amend the amended
complaint, (Dkt. No. 123), is denied as moot. Murphy's
subsequent motion to amend the amended complaint, (Dkt.
No. 170), and his motion to amend the RICO statement,
(Dkt. No. 157), are denied. Edwards and Westcott's motion
regarding Murphy's proposed amended complaint, (Dkt. No.
144), is granted, to the extent it sought denial of Murphy's
motion to amend, and denied in all other respects. The Sheriff
Defendants’ motion requesting guidance in responding to
the amended RICO statement, (Dkt. No. 155), is denied
as moot. Murphy's motion informing the court of alleged
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“improprieties” by defendants, requesting that the amended
RICO statement be accepted as timely, and seeking to file a
further amended complaint, (Dkt. No. 156), and August 30,
2021, letter motion, (Dkt. No. 159), are denied.
II. Background 3
*2 Murphy is a Sergeant in the Onondaga County Sheriff's
Department. (Am. Compl. ¶ 2.) The Sheriff Defendants were,
or are, also members of the Sheriff's Department. (Id. ¶¶
6-13.) Conway is the Sheriff, Cassalia is the Undersheriff,
Gratien, who has since retired, was an Assistant Police
Chief, Ciciarelli is the Chief Police Deputy, Dickinson is a
Captain and Patrol Commander, Blumer and Anderson are
Lieutenants, and Peluso, who has since retired, was a Sergeant
and is now a Special Patrol Officer at the Onondaga County
Civic Center. (Id. ¶¶ 6-13, 67.)
Murphy warned his superior officers in the Sheriff's
Department of “illegal arrests, inadequate police work,
improper training, poor supervision, racially motivated
behavior and improper, unprofessional and illegal conduct”
committed by members of the Sheriff's Department. (Id.
¶ 29.) As a result of this, Murphy was “forbidden [from]
do[ing] police work,” relieved of specific duties, forbidden
from giving orders to subordinates, “required to sit at a
desk during his entire shift doing nothing whatsoever,”
forbidden from using a patrol car or displaying his uniform
in public, “subject[ed] to threatening and abusive behavior”
by others in the Sheriff's Department, was “deprived of
police assistance and ... castigated for his efforts when his ...
wife was menaced and assaulted,” has had his overtime
opportunities reduced, “has been ordered to undertake menial
tasks under circumstances that were deliberately chosen to
cause him physical discomfort and agitation,” passed over
for a promotion, subjected to “repeated unwarranted police
and grand jury investigations,” “arbitrarily transferred,”
“depriv[ed] ... of income,” and was “subjected to public
ridicule and embarrassment.” (Id. ¶ 245.)
Specifically, around November 2008, Murphy discovered
improprieties surrounding the involvement of the Sheriff's
Department with respect to an individual who committed
suicide in the Onondaga County Justice Center. (Id. ¶¶ 36-38.)
Murphy reported these improprieties, including the falsifying
of medical records, to unnamed “supervising officers,” and
Conway. (Id. ¶¶ 39-43.)
On May 30, 2015, Murphy reported to Peluso an instance
where a complaint was made by an African-American
woman, which Murphy claimed was not properly addressed
“due to her ethnic background and her sex,” (id. ¶¶ 49-55),
and requested that the incident be investigated internally,
(id. ¶¶ 98-100). Murphy was later aggressively confronted
by Peluso, who “was loud, screaming and belligerent,” and
conveyed to Murphy that Peluso did not want an investigation
into the woman's complaint, and insinuated that it was
inappropriate for Murphy to go against him. (Id. ¶¶ 63-64.)
Murphy was again aggressively confronted by Peluso at a
later date, and, after the confrontation, “bec[a]me[ ] sick” and
was “admitted to a hospital with chest pains and high blood
pressure,” causing him to miss work for several weeks. (Id.
¶¶ 134, 140, 143.)
On March 9, 2016, Murphy informed Conway “of the
improper use of a temporary holding cell to hold prisoners,”
potentially in violation of their rights. (Id. ¶¶ 69-70.) Murphy
documented a similar violation shortly thereafter to “his chain
of command,” including Gratien, who, along with Conway,
failed to remedy the situation. (Id. ¶¶ 72-75.)
On April 23, 2016, Murphy became aware of an
unconstitutional search and seizure of a suspect's blood, and,
in an attempt to investigate it, contacted Blumer. (Id. ¶¶
78-90.) Blumer told Murphy that she would handle the matter.
(Id. ¶ 90.) Murphy later discovered that Peluso “falsified the
police report to cover up the illegal search and seizure.” (Id. ¶
92.) Murphy later learned that Blumer and Peluso contacted
others in the Sheriff's Department, including Gratien, and
stated that Murphy “was to blame for the illegal search.” (Id.
¶¶ 93-95.) Murphy was later informed “that, according to ...
Gratien, Murphy was not promoted to Lieutenant because
he interferes with investigations of others.” (Id. ¶ 97.)
Peluso later filed a “vacuous” hostile work environment
complaint against Murphy, intended to prevent him from
being promoted. (Id. ¶ 101.) Murphy notified Ciciarelli and
Gratien of the complaint, and requested that it be investigated,
but his request was ignored. (Id. ¶¶ 102-04.)
*3 On August 17, 2016, Murphy met with Ciciarelli and
informed him of the Sheriff's Department's prior failure to
properly investigate the aforementioned complaint made by
an African-American woman based on “racial and sexual
discrimination.” (Id. ¶¶ 105-06.) Murphy also informed
Ciciarelli of the illegal search and seizure and “illegal and
falsified reports filed by Peluso,” of which Gratien knew. (Id.
¶¶ 107-09.) Murphy reported to Ciciarelli that “Gratien had
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expressed his opinion that Murphy should not be promoted
due to his interference with other investigations.” (Id. ¶ 111.)
Finally, Murphy conveyed to Ciciarelli that an “inordinate
number of arrests [were being] made by [members of the
Sheriff's Department] that were illegal for lack of probable
cause.” (Id. ¶ 112.) After this meeting, Ciciarelli conveyed
to an unnamed individual that “he investigated the situation
and discovered that some of ... Murphy's allegations were
true.” (Id. ¶ 116.)
On August 29, 2016, Murphy was ordered to meet
with Dickinson and Murphy's direct supervisor, Lieutenant
Caruso. (Id. ¶¶ 59, 118.) During this meeting Murphy
voiced his concerns to Dickinson regarding the illegal arrests
conducted by members of the Sheriff's Department. (Id. ¶
119.) Dickinson then ordered Murphy to “no longer do police
work while under his command” specifically instructing
Murphy “to refrain from initiating investigations ... to no
longer apply for search warrants.” (Id. ¶ 121.) Murphy and
Caruso both stated that this discipline was unjustified. (Id. ¶¶
122-23.) Ciciarelli was later informed of Dickinson's order.
(Id. ¶ 132.)
From that point forward, Murphy faced various forms
of discipline from members of the Sheriff's Department,
including being ordered to “remove” his personal file cabinet,
(id. ¶ 130), being required to work on Thanksgiving and
Christmas, (id. ¶ 147), being told that he “ha[d] no duties and
no responsibilities and [could not] independently perform any
police related duties during his 10-hour shift[s],” (id. ¶ 152),
and had his teaching schedule at the Police Academy reduced
to just one class, at the behest of Dickinson, (id. ¶¶ 154-55).
Then, on June 24, 2017, Murphy's wife “was struck by
an unruly security guard and subjected to other untoward
conduct” while attending a concert at the Amphitheater on
Onondaga Lake. (Id. ¶ 158b. 4 ) The security guard was
employed by Westcott, which is owned and operated by
Edwards. (Id. ¶ 159b.) Murphy was working that day at the
venue as “Venue Supervisor.” (Id. ¶ 164.) Murphy reported
the incident involving his wife to Captain M. Pellizzari, and
was subsequently relieved of his duties at the Amphitheater
based upon complaints made by Edwards, who stated “that if
Murphy work[ed there] in the future, the security company
w[ould] walk off the job.” (Id. ¶ 168.)
After the incident with his wife, Murphy continued to faced
inter-Department discipline, including threats of “baseless”
reprimand from Anderson for “silent insolence,” (id. ¶
196-98), which Murphy believed was at the behest of Peluso,
(id. ¶ 198); having an internal investigation opened against
him surrounding his alleged improper use of his personal
vehicle, (id. ¶¶ 202-04), which lead to Murphy's surveillance
by Dickinson, (id. ¶ 202); further transfer, adding thirty miles
to his daily commute, (id. ¶¶ 206-08); being prohibited by
Dickinson from using a Sheriff's Department vehicle and
being forced to cover his uniform when in public, (id. ¶
210). When Murphy “[wa]s flagrantly disobeyed by [his]
subordinates,” the subordinates “face[d] no discipline” even
after Murphy reported their insubordination. (Id. ¶¶ 212-13.)
Murphy was ordered to inspect thirty patrol vehicles “in
contradiction to established policy” even though he was not
sufficiently dressed to perform this task. (Id. ¶¶ 215-16.)
Murphy was given two “counseling memos” at the behest
of Dickinson, accusing him of intentionally misrepresenting
Dickinson's past orders and alleging violations of department
policy. (Id. ¶ 219.)
*4 Murphy filed this suit on October 11, 2018. (Id. ¶ 229;
see Dkt. No. 1.) After doing so, he “had several improper,
unsupported and baseless referrals to the Onondaga County
Sheriff's Office Internal Affairs Office” by Dickinson, (Am.
Compl. ¶ 229), and he was transferred “without legitimate
reason to such a position that would cause him to lose
secondary employment opportunities and an immediate loss
of income,” (id. ¶ 242). At an unspecified time, Conway
requested that District Attorney Fitzpatrick “institute an
unwarranted criminal action against Murphy because it [wa]s
impossible to silence him using ‘in-house’ means.” (Id. ¶
234.)
III. Standard of Review
A. Leave to Amend
The filing of amended complaint is governed by Rule 15 of
the Federal Rules of Civil Procedure. See Fed. R. Civ. P.
15. Rule 15 provides that courts “should freely give leave”
to amend a complaint “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). Leave to amend should be given “absent
evidence of undue delay, bad faith or dilatory motive on
the part of the movant, undue prejudice to the opposing
party, or futility.” Monahan v. N.Y.C. Dep't of Corr., 214
F.3d 275, 283 (2d Cir. 2000); see Couloute v. Ryncarz, No.
11-CV-5986, 2012 WL 541089, at *3 (S.D.N.Y. Feb. 17,
2012) (citation omitted). However, motions to amend “should
generally be denied in instances of futility, undue delay, bad
faith or dilatory motive, repeated failure to cure deficiencies
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by amendments previously allowed, or undue prejudice to the
non-moving party.” Burch v. Pioneer Credit Recovery, Inc.,
551 F.3d 122, 126 (2d Cir. 2008); see Monahan, 214 F.3d
at 283. The decision to grant or deny a motion to amend is
committed to the sound discretion of the trial court, and the
court's decision is not subject to review on appeal except for
abuse of discretion. See Fielding v. Tollaksen, 510 F.3d 175,
179 (2d Cir. 2007).
Northern District of New York Local Rule 15.1(a) states,
in relevant part: “[A] motion [to amend] must set forth
specifically the proposed insertions and deletions of language
and identify the amendments in the proposed pleading, either
through the submission of a redline/strikeout version of the
pleading sought to be amended or through other equivalent
means.” Failure to comply with Local Rule 15.1(a) can result
in denial of a motion to amend. See Cottone v. Does, No. 1:17-
cv-1006, 2018 WL 2021513, at *4 (N.D.N.Y. Apr. 30, 2018)
B. Motion to Dismiss
“The standard for addressing a Rule 12(c) motion for
judgment on the pleadings is the same as that for a Rule 12(b)
(6) motion to dismiss for failure to state a claim.” Wright v.
Monroe Cmty. Hosp., 493 F. App'x 233, 234 (2d Cir. 2012)
(internal quotation marks and citation omitted). The standard
of review under Fed. R. Civ. P. 12(b)(6) is well settled and will
not be repeated here. For a full discussion of the governing
standard, the court refers the parties to its prior decision in
Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218
(N.D.N.Y. 2010), abrogated on other grounds by Altman v.
J.C. Christensen & Assocs., Inc., 786 F.3d 191 (2d Cir. 2015).
IV. Discussion
A. Murphy's Motions to Amend
On January 10, 2021, Murphy moved to amend his amended
complaint. (Dkt. No. 123). On November 19, 2021, Murphy
filed another motion to amend, (Dkt. No. 170), and therefore
Murphy's former motion to amend is denied as moot. 5
See Warren v. U.S., 859 F. Supp. 2d 522, 526 (W.D.N.Y.
2012) (denying a pending motion to amend as moot after a
subsequent motion to amend was filed).
*5 In accordance with the court's October, 18, 2021 Text-
Only Order, (Dkt. No. 164), Murphy was required to seek
leave of the court before filing anything, which he did, (Dkt.
No. 165). In granting leave, the court noted that:
Murphy's motion for leave to amend
shall be filed on or before November
19, 2021. Failure to file by that
deadline will result in the summary
denial of the motion for failure to
comply with this Text Only Order.
Moreover, failure to strictly comply
with the Local Rules of Practice, and,
in particular, Rules 7.1 and 15.1, will
result in summary denial of the motion.
(Dkt. No. 169.) The court deemed it necessary to be explicit
in its instructions due to Murphy's history of untimely filings,
(Dkt. 154 (filed two days after the required date)), failure to
comply with the Local Rules, (Dkt. No.123 (failing to comply
with Local Rule 15.1(a))), and general lack of attention to
detail with respect to prior submissions. 6
Murphy's November 19, 2021, motion to amend indicated
via red text proposed amendments to his proposed second
amended complaint, (Dkt. No. 123, Attach. 1), rather than
the operative complaint, (Dkt. No. 60). Therefore, the
court cannot “identify the amendments in the proposed
pleading” to the “pleading sought to be amended,” and can
only readily discern the proposed amendments to Murphy's
proposed second amended complaint, which is not the
operative pleading. See N.D.N.Y. L.R. 15.1(a). For this
reason, and because the court took special pains to ensure
compliance with the Local Rules, and warned Murphy about
the consequences of his failure to do so, Murphy's motion
to amend, (Dkt. No. 170), is denied. See Cottone, 2018 WL
2021513, at *4 (“[F]ailure to meet the requirements of [the]
Local Rule[s] is an independent ground upon which to deny
[a motion to amend].”); (Dkt. No. 169 (“[F]ailure to strictly
comply with the Local Rules of Practice, and, in particular,
Rules 7.1 and 15.1, will result in summary denial of the
motion.”)).
B. RICO
*6 Murphy's first and second causes of action allege
RICO claims against Conway, Ciciarelli, Dickinson, Blumer,
Anderson, Peluso, Gratien, Cassalia, Hummel, Cambareri, 7
Fitzpatrick, Carden, Luczka, and Edwards in both their
individual and official capacities. 8 (Am. Compl. at 47, 51.)
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The Sheriff Defendants and Edwards move to dismiss these
causes of action, for several reasons, (Dkt. No. 88, Attach. 1 at
4-11; Dkt. No. 90, Attach. 1 at 4-11; Dkt. No. 92, Attach. 1 at
5-12; Dkt. No. 94, Attach. 1 at 4-11; Dkt. No. 96, Attach. 1 at
4-11; Dkt. No. 98, Attach. 1 at 3-11; Dkt. No. 100, Attach. 1 at
4-11; Dkt. No. 102, Attach. 1 at 4-11; Dkt. No. 143, Attach. 3
at 4-11), but, most notably, because Murphy failed to comply
with Local Rule 9.2. (Dkt. No. 120 at 1; Dkt. No. 143, Attach
3. at 9.) Hummel, Cambareri, Fitzpatrick, Carden, and Luczka
did not move to dismiss.
RICO grants standing to pursue a civil damages remedy to
“any person injured in his business or property by reason
of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c).
The statute “imposes liability on individuals working for
an ‘enterprise’ that commits certain predicate crimes that
amount to a ‘pattern of racketeering activity.’ ” Reich v.
Lopez, 858 F.3d 55, 59 (2d Cir. 2017) (quoting 18 U.S.C.
§§ 1962, 1964). A plaintiff asserting a RICO violation must
adequately plead “(1) the defendant's violation of [18 U.S.C.]
§ 1962, (2) an injury to plaintiff's business or property, and
(3) the causation of the injury by the defendant's violation.”
Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir. 2006)
(internal quotation marks and citations omitted; alteration
in original). To adequately plead the causation element of
a RICO claim, the plaintiff must allege that the defendant's
conduct was the “legal, or proximate, cause of [his] injury, as
well as the logical, or ‘but for,’ cause.” Id. at 283-84 (quoting
Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., 271
F.3d 374, 380 (2d Cir. 2001)).
To allege a RICO conspiracy under 18 U.S.C. § 1962(d), a
plaintiff must allege “a conspiracy to commit a substantive
RICO violation.” Spool, 520 F.3d at 183. In particular,
“[b]ecause the core of a RICO civil conspiracy is an
agreement to commit predicate acts, a RICO civil conspiracy
complaint, at the very least, must allege specifically such an
agreement.” Hecht v. Commerce Clearing House, Inc., 897
F.2d 21, 25 (2d Cir. 1990). As a result, to properly allege
a civil RICO conspiracy under Section 1962(d), a plaintiff
must allege that the defendant “knew about and agreed to
facilitate the [RICO] scheme.” Salinas v. United States, 522
U.S. 52, 66 (1997). Regarding the facilitation requirement, “a
plaintiff must allege that the conspirator intended to further an
endeavor that, if completed, would satisfy all of the elements
of a substantive” criminal offense; however, it is sufficient
for a plaintiff to allege that the “conspirator adopted the goal
of furthering or facilitating the criminal endeavor.” Malvar
Egerique v. Chowaiki, No. 19 Civ. 3110, 2020 WL 1974228,
at *8 (S.D.N.Y. Apr. 24 2020).
“Local Rule 9.2 requires a party asserting a claim under
RICO to ‘file a RICO statement within thirty (30) days of
the filing of the pleading containing such claim.’ ” Poole
v. Bendixen, No. 5:20-CV-0697, 2021 WL 3737780, at *11
(N.D.N.Y. Aug. 24, 2021). Failure to timely file a RICO
statement pursuant to this rule is grounds for dismissal of
the RICO claims. See Pierce v. Homecomings Fin. LLC,
No. 17-CV-0882, 2017 WL 5991750, at *2 n.2 (N.D.N.Y.
Dec. 4, 2017) (noting that, where a plaintiff failed to file
a RICO statement pursuant to Local Rule 9.2, “[p]laintiff's
RICO claim may be dismissed for this reason alone”); see
also Amaker v. Kelley, No. 9:01-CV-877, 2009 WL 385413,
at *11 (N.D.N.Y. Feb. 9, 2009) (holding that failure to file
a RICO statement “provid[es] a threshold for dismissal of
[a] plaintiff's RICO claim”); Spoto v. Herkimer Cnty. Trust,
No. 99-CV-1476, 2000 WL 533293, at *3 n.2 (N.D.N.Y. Apr.
27, 2000) (“[T]he [c]ourt would be justified to dismiss [the]
complaint based upon the[ ] very untimely filing of the[ ]
Local Rule 9.2 RICO Statement.”).
*7 Murphy filed the first iteration 9 of his amended
complaint alleging RICO causes of action on July 1, 2019,
(Dkt. No. 56), and he filed his RICO statement on August
16, 2021, (Dkt. No. 154), well beyond the time permitted
by Local Rule 9.2. Because of this violation of Local Rule
9.2, Murphy's first and second causes of action are dismissed
as against all defendants. See Poole, 2021 WL 3737780, at
*11 (denying RICO claims where Plaintiff failed to timely
file a RICO statement under Local Rule 9.2, “regardless of
Plaintiffs’ good-faith work on other aspects of th[e] case”);
see also Citadel Mgmt., Inc. v. Telesis Trust, Inc., 123 F.
Supp. 2d 133, 146-47 (S.D.N.Y. 2000) (dismissing complaint
against non-moving defendants where moving defendants
raised arguments that supported dismissal of all defendants
because plaintiff was “on notice” of these arguments and had
“responded in full”).
Given that Murphy's RICO statement was untimely, and his
RICO claims are dismissed, Murphy's motion to amend the
RICO statement, (Dkt. No. 157), is denied, and his motion
that, among other things, requested that the amended RICO
statement be accepted as timely, to the extent it sought such
relief, (Dkt. No. 156), is denied as moot. Further, the Sheriff
Defendants’ motion requesting guidance on responding to
Murphy's amended RICO statement, (Dkt. No. 155), is also
denied as moot.
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C. Retaliation
Murphy's third, fourth, and sixth causes of action allege
retaliation in violation of 42 U.S.C. § 1983 and Article
1, Section 8 of the New York State Constitution
against Onondaga County, the Onondaga County Sheriff's
Department, the Sheriff Defendants, Hummel, Fitzpatrick,
Carden, and Luczka. (Am. Compl. at 52, 56, 64.) The Sheriff
Defendants moved to dismiss these claims, arguing that there
is no causal connection between Murphy's speech and any
alleged adverse employment action. (Dkt. No. 88, Attach.
1 at 11-13; Dkt. No. 90, Attach. 1 at 11-13; Dkt. No. 92,
Attach. 1 at 12-13; Dkt. No. 94, Attach. 1 at 12-13; Dkt.
No. 96, Attach. 1 at 12-14; Dkt. No. 98, Attach. 1 at 11-12;
Dkt. No. 100, Attach. 1 at 12-14; Dkt. No. 102, Attach. 1 at
13-15.) Dickinson also contends that Murphy's speech was
made as an employee of the Sheriff's Department, rather than
as a member of the public, and that any actions taken by
Dickinson were “at most de minimis inconvenience[s]” but
not adverse employment actions. (Dkt. No. 102, Attach. 1
at 14-15.) Onondaga County, the Onondaga County Sheriff's
Department, Hummel, Fitzpatrick, Carden, and Luczka do not
move to dismiss.
Murphy fails to address any of the arguments made by
Blumer, Anderson, Peluso, Gratien, and Ciciarelli. (Dkt.
No. 124; Dkt. No. 125; Dkt. No. 126.) With respect
to Conway, Murphy appears to contend that supervisory
liability provides a basis to avoid dismissal, and that a
further amended complaint will also support his retaliation
claims against Conway. (Dkt. No.116 at 15-16.) Regarding
Dickinson and Cassalia, Murphy appears to also argue that
supervisory liability provides a basis to avoid dismissal, and
that Dickinson and Cassalia's “efforts were focused on the
fabrication of false reports.” (Dkt. No. 117 at 13; 118 at 13.)
Murphy does not provide a single citation to the amended
complaint in support of this position. (Id.)
To withstand a motion to dismiss on a First Amendment
retaliation claim, a plaintiff must demonstrate: (1) that he
“engaged in protected First Amendment activity;” (2) that “he
suffered an adverse employment action;” and (3) that “there
was a causal connection between the protected activity and
the adverse employment action.” Osuan v. City of New York,
No. 18cv151, 2019 WL 2544866, at *4 (S.D.N.Y. June 20,
2019) (quoting Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.
2007)); see Smith v. County of Suffolk, 776 F.3d 114, 118 (2d
Cir. 2015).
*8 Whether an employee's speech is protected by the First
Amendment is a two-part inquiry. See Reynolds v. Village
of Chittenango, No. 5:19-cv-416, 2020 WL 1322509, at
*3 (N.D.N.Y. Mar. 20, 2020) (citation omitted). First, the
subject of the employee's speech must be “a matter of public
concern.” Id. (quoting Jackler v. Byrne, 658 F.3d 225, 235
(2d Cir. 2011)). Second, the employee must be speaking “as
a citizen rather than solely as an employee.” Id. (quoting
Jackler, 658 F.3d at 235).
An adverse employment action is qualified as “retaliatory
conduct that would deter a similarly situated individual of
ordinary firmness from exercising his or her constitutional
rights.” Shanks v. Vill. of Catskill Bd. of Trs., 653 F. Supp.
2d 158, 166 (N.D.N.Y. 2009) (quoting Zelnik v. Fashion Inst.
of Tech., 464 F.3d 217, 225-26 (2d Cir. 2006)). “Under this
definition, adverse employment actions include discharge,
refusal to hire, refusal to promote, demotion, reduction in pay,
and reprimand[;] as well as lesser actions such as negative
reviews, false accusations, and menial job assignments.” Id.
(quoting Zelnik, 464 F.3d at 226) (internal quotation marks
and other citation omitted).
Finally, a plaintiff must establish “a causal relationship
between the protected speech and the adverse employment
action.” Id. “The causal connection must be sufficient to
warrant the inference that the protected speech was a
substantial motivating factor in the adverse employment
action.” Cotarelo v. Vill. of Sleepy Hollow Police Dept., 460
F.3d 247, 251 (2d Cir. 2006) (citation omitted). “Causation
can be established either indirectly by means of circumstantial
evidence, for example, by showing that the protected activity
was followed by adverse treatment in employment, or directly
by evidence of retaliatory animus.” Shanks, 653 F. Supp. 2d
at 167 (citation omitted). To demonstrate a causal connection,
such to “survive a motion to dismiss,” a plaintiff “need not
clearly establish that the defendant harbored retaliatory intent.
It is sufficient to allege facts which could reasonably support
an inference to that effect.” Stajic v. City of New York, 214
F. Supp. 3d 230, 235 (S.D.N.Y. 2016) (quoting Posr v. Court
Officer Shield No. 207, 180 F.3d 409, 418 (2d Cir. 1999)).
The Second Circuit has recently clarified that “there is no
special rule for supervisory liability [under § 1983]. Instead, a
plaintiff must plead and prove that each ... defendant, through
[their] own individual actions, has violated the Constitution.”
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)
(internal quotation marks and citation omitted).
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As a preliminary matter, Murphy's retaliation claim pursuant
to Article I, Section 8 of the New York State Constitution is
duplicative of his § 1983 First Amendment retaliation claim.
See Leibovitz v. City of New York, No. 14-CV-7106, 2018 WL
1157872, at *21 (E.D.N.Y. Mar. 2, 2018) (“[V]arious federal
courts in this circuit have held that there is no private right
of action under the New York State Constitution where ...
remedies are available under [§] 1983.”) (internal quotation
marks and citations omitted); cf. Sanders v. City of New York,
No. 12 CV 2906, 2015 WL 2331105, at *9 (S.D.N.Y. May
11, 2015). Thus, Murphy's sixth cause of action, alleging a
violation of the New York Constitution, is dismissed as to all
defendants.
*9 With respect to Murphy's First Amendment retaliation
claims brought pursuant to § 1983, he has adequately pleaded
that he was speaking as a citizen on matters of public concern
when he reported to his superior officers “illegal arrests,
inadequate police work, improper training, poor supervision,
racially motivated behavior and improper, unprofessional[,]
and illegal conduct” committed by members of the Sheriff's
Department. (Am. Compl. ¶ 29); see Raymond v. City of New
York, 317 F. Supp. 3d 746, 755-56 (S.D.N.Y. 2018) (holding
that a police officer “engaged in speech in his capacity as
a private citizen on a matter of public concern” when he
alerted his commanding officer of improper arrests); see
also Matthews v. City of New York, 779 F.3d 167, 174 (2d
Cir. 2015) (“[W]hen a public employee whose duties do not
involve formulating, implementing, or providing feedback on
a policy ... engages in speech concerning that policy, and
does so in a manner in which ordinary citizens would be
expected to engage, he or she speaks as a citizen, not as
a public employee.”); see also Shanks, 653 F. Supp. 2d at
165 (N.D.N.Y. 2009) (finding that a firefighter reporting fire
department safety violations was protected speech).
Further, Murphy has adequately pleaded that he faced
adverse employment action. Specifically, Murphy alleges that
Conway requested that Fitzpatrick “institute an unwarranted
criminal action against Murphy,” (Am. Compl. ¶ 234), that
Gratien, Blumer, 10 and Peluso colluded to create a falsified
police report in an attempt to blame Murphy for an illegal
search and seizure conducted by others in the Sheriff's
Department, raised by Murphy, (id. ¶ 322), that Anderson
filed an unsubstantiated internal complaint against Murphy,
(id. ¶¶ 198, 322), that Peluso filed multiple unsubstantiated
internal complaints against him, (id. ¶¶ 101, 137), at least
one of which was “specifically intended to prevent ... Murphy
from being promoted,” (id. ¶ 101), and, finally, that Dickinson
drastically reduced Murphy's duties and responsibilities,
including his teaching role at the police academy, and made
“several improper, unsupported and baseless referrals [of
Murphy] to the Onondaga County Sheriff's Office Internal
Affairs Office,” (id. ¶¶ 121, 154-55, 229). These all constitute
adverse employment actions. See Shanks, 653 F. Supp. 2d at
166. 11
Finally, Murphy has adequately pleaded a causal connection
between his speech and these adverse actions with respect
to the Sheriff Defendants, other than Ciciarelli and Cassalia.
The amended complaint alleges that, after Murphy informed
Conway of the alleged corruption in the Sheriff's Department,
Conway requested that Fitzpatrick “institute an unwarranted
criminal action against Murphy, because it [wa]s impossible
to silence him using ‘in-house’ means.” (Am. Compl. ¶¶
69, 234.) At this stage in the litigation, this is adequate to
demonstrate a causal connection between Murphy's speech
and the alleged adverse employment action carried out by
Conway. See Reynolds, 2020 WL 1322509, at *3 (holding a
causal connection existed where “after [plaintiff] complained
about his defective patrol car, he was subject to ... threats of
false and malicious criminal prosecution” (internal quotation
marks and citation omitted)).
*10 With respect to Gratien, Blumer, and Peluso, the
amended complaint alleges that, shortly after raising concerns
to Blumer regarding an improper search and seizure
conducted by members of the Sheriff's Department, which
involved Peluso falsifying a policy report to cover the
incident up, Gratien, Blumer, and Peluso “collu[ded]” to
create a falsified police report in an attempt to blame
Murphy for the incident. (Am. Compl. ¶¶ 88-95, 322).
Further, after that incident, Gratien expressed that Murphy
“was not promoted to Lieutenant because he interferes with
investigations of others.” (Id. ¶ 97.) At this stage in the
litigation, these allegations are adequate to demonstrate a
causal connection between Murphy's speech and the adverse
employment actions carried out by Gratien, Blumer, and
Peluso. 12 See Jackson, WL 5698535, at *5 (finding a causal
connection existed based on allegations that the defendants
threatened and harassed the plaintiff, and falsely represented
the plaintiff's performance reviews).
With respect to Anderson, the amended complaint alleges
that, he filed an internal affairs complaint against Murphy,
“following Peluso's lead.” (Am. Compl. ¶¶ 198, 322).
Given that Peluso's complaint was brought shortly after
Murphy raised concerns to Peluso about an instance where
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a complainant was not “attent[ed to] by [the Sheriff's
Department] ... due to her ethnic background and her sex,”
that the complaint was “specifically intended to prevent ...
Murphy from being promoted,” and because Anderson, was
“following Peluso's lead,” (Am. Compl. ¶¶ 44-55, 101, 322),
Anderson's Rule 12(c) motion is denied. Stajic, 214 F. Supp.
3d at 235 (holding, that to “survive a motion to dismiss,”
a plaintiff “need not clearly establish that the defendant
harbored retaliatory intent. It is sufficient to allege facts which
could reasonably support an inference to that effect” (citation
omitted)).
With respect to Ciciarelli and Cassalia, Murphy has failed to
adequately plead a cause of action for retaliation. Regarding
Cassalia, there is not a single specific allegation in the
amended complaint demonstrating that Cassalia was a
participant in any adverse employment action. Regarding
Ciciarelli, Murphy alleges simply that Ciciarelli was aware of
the adverse employment action, but not that he was involved
in anyway, which is inadequate. See Tangreti, 983 F.3d at 618.
To the extent Murphy argues that future amendments will
cure any defect with respect to this clause of action, (see,
e.g., Dkt. No.116 at 15-16), this argument does not save his
claim. 13 See Austin Air Sys., Ltd. v. Sager Elec. Supply Co.,
Inc., No. 19-CV-562JLS, 2022 WL 464230, at *8 (W.D.N.Y.
Feb. 15, 2022) (“In ruling on a motion under Rule 12(b)(6), ...
the court may consider only ‘the facts as asserted within the
four corners of the complaint, the documents attached to the
complaint as exhibits, and any documents incorporated into
the complaint by reference.’ ”) (quoting McCarthy v. Dun
& Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007)); see
also supra Part IV.A. (denying Murphy's pending motions to
amend).
*11 For these reasons, Murphy's third and fourth causes
of action are dismissed as against Ciciarelli and Cassalia,
and may proceed against all of the other Sheriff Defendants,
as well as the non-moving parties: Onondaga County,
the Onondaga County Sheriff's Department, Hummel,
Fitzpatrick, Carden, and Luczka.
D. Section 1985 Conspiracy
Murphy alleges a § 1985 conspiracy against Onondaga
County, the Onondaga County Sheriff's Department, the
Sheriff Defendants, Hummel, Fitzpatrick, Carden, and
Luczka. The Sheriff Defendants move to dismiss this claim,
arguing among other things, that, if the court is to construe
this cause of action as brought under § 1985(2), that the
“amended complaint contains only vague and conclusory
allegations which fail to identify a single act [by any of the
Sheriff Defendants] in furtherance of any conspiracy.” (Dkt.
No. 129 at 7; see Dkt. No. 130 at 6; Dkt. No. 131 at 6;
Dkt. No. 135 at 6-7; Dkt. No. 136 at 6-7; Dkt. No. 137
at 6-7.) Onondaga County, the Onondaga County Sheriff's
Department, Hummel, Fitzpatrick, Carden, and Luczka do not
move to dismiss.
Murphy argues that “unquestionably, [he] was the subject of
efforts by all of the defendants to impede, hinder, obstruct
and/or defeat his pursuit of justice during the course of this
federal proceeding,” citing only one example in support of
this position, that he “was the subject of a grand jury target
letter” that “was based on no probable cause and was purely
an attempt to deter [him].” (Dkt. No. 116 at 18; Dkt. No. 124
at 12; Dkt. No. 125 at 12-13; Dkt. No. 126 at 12.) Further,
with respect to certain defendants, Murphy argues that future
“supplement[ations]” will cure any defect in the amended
complaint regarding his § 1985 claim. (Dkt. No. 117 at 14;
Dkt. No. 118 at 14.)
As a preliminary matter, there is some dispute pursuant to
which paragraph of 42 U.S.C. § 1985 Murphy brings his fifth
cause of action. Murphy's fifth claim is for “conspiracy to
retaliate in violation of the first amendment” under 42 U.S.C.
§ 1985. (Am. Compl. at 60-61.) It appears that Murphy brings
this cause of action under 42 U.S.C. § 1985(3) (Am. Compl.
¶ 321 (“Defendants ... entered into a corrupt agreement to
injure ... Murphy ... [and] deprive him of his Constitutional
rights”)); see Oliver v. N.Y. State Police, No. 1:19-cv-233,
2020 WL 1849484, at *9 (N.D.N.Y. Apr. 13, 2020) (holding
that, “[t]o state a conspiracy claim under Section 1985(3),
among other things, a plaintiff must allege: “1) a conspiracy;
2) for the purpose of depriving ... any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws” ” (quoting Dolan
v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015)).
However, after the Sheriff Defendants, in their various Rule
12(c) motions, noted that, under 42 U.S.C. § 1985(3),
a plaintiff must allege “some class based discriminatory
amicus,” which Murphy had not adequately pleaded, (see,
e.g., Dkt. No. 88, Attach. 1 at 14) (citing Trombley v. O'Neill,
929 F. Supp. 2d 81, 96 (N.D.N.Y. 2013)), Murphy argues
that his fifth cause of action is actually conspiracy to obstruct
justice, in violation of the second clause of 42 U.S.C. §
1985(2), (see, e.g., Dkt. 116 at 17-18.)
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Even though the court is not persuaded that Murphy intended
to bring this cause of action under 42 U.S.C. § 1985(2), out
of an abundance of caution, it will analyze it as such.
*12 The second clause of 42 U.S.C. § 1985(2) prohibits “two
or more persons” from conspiring for to purpose of:
[I]mpeding, hindering, obstructing, or
defeating, in any manner, the due
course of justice in any State or
Territory, with intent to deny to any
citizen the equal protection of the laws,
or to injure him or his property for
lawfully enforcing, or attempting to
enforce, the right of any person, or
class of persons, to the equal protection
of the laws.
With respect to a claim brought under this clause of § 1985(2),
a plaintiff must plead “(1) a conspiracy, (2) for the purpose of
impeding, hindering, obstructing, or defeating, in any manner,
(3) the due course of justice in any State or Territory, (4) with
intent to deny any citizen the equal protection of the laws.”
Thomas v. DeCastro, No. 14-CV-6409, 2018 WL 1322207,
at *12 (S.D.N.Y. Mar. 13, 2018) (internal quotation marks
and citation omitted). “[A] claim under the second clause
of [§] 1985(2) requires a showing of class-based invidiously
discriminatory animus on the part of the conspiring parties.”
Langton v. Town of Chester Library Bd., No. 14-cv-9474,
2020 WL 2850898, at *4 (S.D.N.Y. June 1, 2020) (internal
quotation marks and citation omitted); see Ruggiero v. City
of Cortland, No. 5:17-CV-790, 2018 WL 5983505, at *8
(N.D.N.Y. Nov. 14, 2018) (dismissing a conspiracy claim
brought under the second clause of § 1985(2) where, plaintiff
“failed to plausibly allege that any of th[e] conspiratorial
misconduct stem[ed] from the kind of racial or other class-
based animus required by controlling federal law” (internal
quotation marks and citation omitted)).
Murphy concedes the fact that he “has not alleged that
damages were caused as a result of racial discrimination
or other discriminatory means,” (see, e.g., Dkt. No. 124 at
11), a requirement under the second clause of § 1985(2).
See Langton, 2020 WL 2850898, at *4; see Ruggiero, 2018
WL 5983505, at *8. Because Murphy makes no attempt to
demonstrate racial or other class-based animus 14 on behalf of
any defendant, he has failed to adequately plead a claim under
the second clause of § 1985(2), and, thus, his fifth cause of
action is dismissed as against all defendants. 15 See Citadel,
123 F. Supp. at 146-47.
E. Equal Protection
*13 Murphy's seventh cause of action alleges violations of
the Equal Protection Clause of the Fourteenth Amendment,
under 42 U.S.C. § 1983 against Onondaga County,
the Onondaga County Sheriff's Department, the Sheriff
Defendants, Hummel, Fitzpatrick, Carden, and Luczka. (Am.
Compl. at 68.) The Sheriff Defendants move to dismiss this
claim, raising several arguments in support of their position,
(Dkt. No. 88, Attach. 1 at 15-17; Dkt. No. 90, Attach. 1 at
16-17; Dkt. No. 92, Attach. 1 at 16-17; Dkt. No. 94, Attach.
1 at 16-18; Dkt. No. 96, Attach. 1 at 16-17; Dkt. No. 98,
Attach. 1 at 14-16; Dkt. No. 100, Attach. 1 at 16-18; Dkt.
No. 102, Attach. 1 at 17-18). Relevant here, they contend that
Murphy bases his equal protection claim on a class-of-one
theory, which is inapplicable. (Dkt. No. 129 at 7-8; Dkt. No.
130 at 7; Dkt. No. 131 at 7; Dkt. No. 135 at 7-8; Dkt. No. 136
at 7-8; Dkt. No. 137 at 7-8.) Onondaga County, the Onondaga
County Sheriff's Department, Hummel, Fitzpatrick, Carden,
and Luczka do not move to dismiss.
“The Equal Protection Clause of the Fourteenth Amendment
requires the government to treat all similarly situated
individuals alike.” Young v. Suffolk County, 705 F. Supp. 2d
183, 204 (E.D.N.Y. 2010) (citing City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439, (1985)). When a plaintiff
does not allege an equal protection violation due to their
membership in a protected class, they may still prevail on
their claim under a “class-of-one” theory. See NRP Holdings
LLC v. City of Buffalo, 916 F.3d 177 (2d Cir. 2019) (“[T]he
Supreme Court has ... endorsed a class-of-one theory for
equal protection claims, under which a single individual can
claim a violation of her Equal Protection rights based on
arbitrary disparate treatment.” (internal quotation marks and
citations omitted)); see also Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000). To succeed under a class-of-one
theory, a plaintiff must demonstrate “[1] that [ ]he has been
intentionally treated differently from others similarly situated
and [2] that there is no rational basis for the difference in
treatment.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir.
2019) (citation omitted).
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In Engquist v. Oregon Department of Agriculture, the
Supreme Court held that the class-of-one theory has no
application in the public employment context. See 553 U.S.
591, 607-08 (2008); see also Booker v. City of New York,
No. 14 Civ. 9801, 2017 WL 151625, at *5 (S.D.N.Y. Jan.
13, 2017) (“[B]ecause ‘class-of-one’ Equal Protection claims
are unavailable in the public employment context, plaintiff
cannot state a viable federal Equal Protection claim [under §
1983].”).
Because Murphy's equal protection claim relies on the class
of one theory, (Dkt. No. 116 at 18-19 (“It has long been held
that plaintiff might bring a suit based upon his membership in
[a] class[-]of[-]one.... [Murphy's] class ... may be articulated
in any number of ways including ‘all Sheriff's Deputies’, ‘all
Sheriff's Deputies in Onondaga County’, ‘all police officers’,
etc.” (internal citation omitted)); see Dkt. No. 117 at 15; Dkt.
No. 118 at 15; Dkt. No. 124 at 12-13; Dkt. No. 125 at 13; Dkt.
No. 126 at 12-13), and Murphy's claim is in the context of
public employment, it must be dismissed. See Stas v. Lynch,
576 F. Supp. 2d 322, 323, 325 (D. Conn. 2008) (finding that
former Connecticut State Police Trooper did not have a valid
claim against Connecticut State Police official pursuant to
§ 1983, under the class-of-one theory, because this theory
was inapplicable in the context of public employment). For
this reason, Murphy's seventh cause of action is dismissed as
against all defendants. See Citadel, 123 F. Supp. 2d at 146-47.
F. Defamation
Murphy's eighth cause of action is for defamation, defamation
per se, slander, and libel against Onondaga County,
the Onondaga County Sheriff's Department, the Sheriff
Defendants, Hummel, Fitzpatrick, Carden, Luczka, and
Edwards. (Am. Compl. at 70.)
The Sheriffs Defendants and Edwards move to dismiss these
claims, with the Sheriffs Defendants arguing that Murphy
has not adequately pleaded defamation, (Dkt. No. 88, Attach.
1 at 17-18; Dkt. No. 90, Attach. 1 at 18-20; Dkt. No. 92,
Attach. 1 at 18-19; Dkt. No. 94, Attach. 1 at 19-20; Dkt.
No. 96, Attach. 1 at 18-19; Dkt. No. 98, Attach. 1 at 16-17;
Dkt. No. 100, Attach. 1 at 18-20; Dkt. No. 102, Attach.
1 at 19-21), and that, even if he did, the claims are time-
barred, (Dkt. No. 88, Attach. 1 at 19-20; Dkt. No. 90, Attach.
1 at 17-18; Dkt. No. 92, Attach. 1 at 17-18; Dkt. No. 94,
Attach. 1 at 18-19; Dkt. No. 96, Attach. 1 at 17-18; Dkt. No.
100, Attach. 1 at 18; Dkt. No. 102, Attach. 1 at 18-19), and
Edwards making similar arguments, (Dkt. No. 143, Attach. 3
at 11-14). Onondaga County, the Onondaga County Sheriff's
Department, Hummel, Fitzpatrick, Carden, and Luczka do not
move to dismiss.
*14 Murphy argues that the statute of limitations does not
bar his claims because “[e]ven if the slanderous comments
made by defendants during the meeting that [sic.] the
Onondaga County District Attorney's Office were the only
comments to base his claim on, ... [that] this meeting occurred
in or about January of 2019.” (Dkt. No. 116 at 20-21; see
Dkt. 117 at 17; Dkt. No. 118 at 17; Dkt. No. 124 at 14-15;
Dkt. No. 125 at 15; Dkt. No. 126 at 14-15; Dkt. No. 148
at 24.) He also contends that the statute of limitation does
not bar his claims because the defendants’ “investigations
and allegations against Murphy continued even as this case
progressed.” (Dkt. No. 124 at 15; Dkt. No. 125 at 15; Dkt. No.
126 at 150; see Dkt. No. 148 at 25.) Murphy further asserts
that he has sufficiently pleaded all elements to his defamation
claims because “[a]s to who the defaming remarks were made,
that would include the defendants herein, selected members of
the District Attorney's Office, possibly grand jury participants
and others. As to the words stated, that would include false
allegations that Murphy had committed a crime.” (Dkt. No.
116 at 20; see Dkt. No. 117 at 18; Dkt. No. 118 at 18; Dkt.
No. 124 at 15; Dkt. No. 125 at 15; Dkt. No. 126 at 15; see
Dkt. No. 148 at 25.) Murphy also asserts that his proposed
second amended complaint establishes additional support for
his defamation claims. (Dkt. No. 116 at 21; Dkt. No. 124
at 15; Dkt. 125 at 15-16; Dkt. No. 126 at 15.) Finally, he
argues that discovery would allow him to cure any defects
in his defamation cause of action. (Dkt. No. 118 at 18; Dkt.
No. 148 at 25 (“As it cannot be denied that there was a
Grand Jury investigation, there must be a criminal complaint
from Edwards/ Westcott. Further, it is obvious that there is no
probable cause to institute such an investigation. Undeniably,
someone lied. Plaintiff asks only the opportunity to view these
documents. That is only fair.”).)
“Defamation ... consist[s] of the twin torts of libel and
slander.” Alexander v. City of Syracuse, No. 5:17-CV-1195,
2018 WL 6591426, at *6 (N.D.N.Y. Dec. 13, 2018) (quoting
Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001)). To
state a claim for defamation under New York law, a plaintiff
must allege “a false statement, published without privilege
or authorization to a third party, constituting fault as judged
by, at a minimum, a negligence standard, ... caus[ing] special
harm or constitut[ing] defamation per se.” Jackie's Enters.,
Inc. v. Belleville, 165 A.D.3d 1567, 1569-70 (3d Dep't 2018)
(citations omitted). “While the Second Circuit has abandoned
the stringent in haec verba standard in defamation cases, to
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comply with the dictates of Rule 8(a) a plaintiff must still
‘afford defendant sufficient notice of the communications
complained of to enable him to defend himself.’ ” 16 Simons v.
New York, 472 F. Supp. 2d 253, 267 (N.D.N.Y. 2007) (quoting
Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986)).
For a defamation claim to survive a motion to dismiss, in
compliance with Rule 8, a plaintiff must “identify (1) the
allegedly defamatory statements; (2) the person who made the
statements; (3) the time when the statements were made; and,
(4) the third parties to whom the statements were published.”
Hillary v. Vill. of Potsdam, No. 7:12-cv-1669, 2015 WL
902930, at *11 (N.D.N.Y. Mar. 3, 2015) (citation omitted).
In other words, the allegations must include “the time, place,
and manner of the false statement.” Arvanitakis v. Lester, 145
A.D.3d 650, 651 (2d Dep't 2016).
As to slander per se, there are four categories of statements for
which damages need not be shown: statements “(i) charging
plaintiff with a serious crime; (ii) that tend to injure another in
his or her trade, business or profession; (iii) that plaintiff has a
loathsome disease; or (iv) imputing unchastity to a woman.”
Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992) (citations
omitted).
*15 “Under New York law, the statute of limitations for a
defamation claim is one year.” McKenzie v. Dow Jones &
Co., Inc., 355 F. App'x 533, 535 (2d Cir. 2009) (citing N.Y.
C.P.L.R. § 215(3)).
With respect to Conway, Murphy fails to adequately plead
a claim for defamation. Murphy alleges two arguably 17
defamatory statements attributable to Conway in the amended
complaint. (Am. Compl. ¶¶ 73, 234.) The first of these
statements occurred on March 9, 2016, (Id. ¶ 73), assuming
arguendo that this statement was defamatory, it is time-
barred, as it occurred more than one year prior to the
commencement of this action, on October 11, 2018, (Dkt. No.
1). The second statement attributable to Conway is: “Conway
request[ed] ... Fitzpatrick to institute an unwarranted criminal
action against Murphy because it is impossible to silence
him using ‘in-house’ means.” (Am. Compl. ¶ 234.) Although
Murphy appears to argue in his opposition papers that this
occurred “in or about January of 2019,” (Dkt. No. 116 at 21),
the amended complaint does not allege when this statement
was made, (Am. Compl. ¶ 234), and, thus, fails to adequately
plead a claim for defamation against Conway. See Moleon v.
Alston, No. 21 Civ. 1398, 2021 WL 5772439, at *15 (S.D.N.Y.
Dec. 3, 2021) (“Where a plaintiff fails to identify ... the time ...
in which [the statement] w[as] made, a defamation claim does
not survive a motion to dismiss.” (internal quotation marks
and citation omitted)); see also Austin Air Sys., 2022 WL
464230, at *8 (“In ruling on a motion under Rule 12(b)(6), ...
the court may consider only ‘the facts as asserted within the
four corners of the complaint, the documents attached to the
complaint as exhibits, and any documents incorporated into
the complaint by reference.’ ” (quoting McCarthy, 482 F.3d
at 191)).
Murphy also fails to adequately plead a claim for defamation
against Blumer, Peluso, Anderson, Gratien, and Dickinson.
Murphy alleges several arguably defamatory statements
attributable to these defendants in the amended complaint.
(Am. Compl. ¶¶ 65, 95, 97,111, 118, 124, 136, 141-42, 154,
168, 196, 322.) As alleged in the amended complaint, these
statements were made “[a] few days [after]” May 30, 2015,
(id. ¶¶ 49, 63, 65), on or about April 24, 2016, (id. ¶¶ 78,
93, 95), on or before June 3, 2016, (id. ¶ 97), on or before
August 10, 2016, (id. ¶ 101), on September 29, 2016, (id.
¶¶ 134, 136-137), on October 5, 2016, (id. ¶ 141), “[d]uring
the November, 2016 time period,” (id. ¶ 154), and “on or
about June 24, 2017,” (id. ¶¶ 158, 168), and in or before
September 2017, (id. ¶ 196). Assuming without deciding that
these statements were defamatory, they are time-barred, as
they occurred more than one year prior to the commencement
of this action, on October 11, 2018, (Dkt. No. 1). 18
*16 Nowhere in the amended complaint does Murphy
attribute any specific defamatory statements to Cassalia
or Ciciarelli, 19 and, thus, he has not made out a claim
for defamation as against them. See Hillary, 2015 WL
902930, at *11 (for a defamation claim to survive a
motion to dismiss, a plaintiff must “identify ... the allegedly
defamatory statements ... [and] the person who made the
statements” (internal quotation marks and citation omitted)).
Finally, with respect to Edwards, Murphy has failed to
adequately plead defamation. The only arguably defamatory
statement made by Edwards included in the amended
complaint was made “on or about June 24, 2017.” (Am.
Compl. ¶¶ 158, 168.) Again, assuming arguendo that this
statement was defamatory, it is time-barred, as it occurred
more than one year prior to the commencement of this action,
on October 11, 2018. (Dkt. No. 1.)
Finally, in Murphy's various opposition papers, he appears to
make the same, or substantially similar, arguments, regardless
of the applicability of the arguments to the specific motion
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he is opposing. (See, e.g., Dkt. 118 at 17-18 (responding to a
statute of limitations argument that was not made with respect
to this specific defendant).) He argues that his claims are
not time-barred because “[e]ven if the slanderous comments
made by defendants during the meeting that the Onondaga
County District Attorney's Office were the only comments
to base his claim on, there is no problem with the statute
of limitations ... [because] this meeting occurred in or about
January of 2019.” (Dkt. No. 116 at 20-21; Dkt. 117 at 17;
Dkt. No. 118 at 17; Dkt. No. 124 at 14-15; Dkt. No. 125 at
15; Dkt. No. 126 at 14-15). This is borderline nonsensical.
It is not apparent to the court to which “meeting that [sic.]
the Onondaga County District Attorney's Office” Murphy
is referring, as the amended complaint does not discuss
such a meeting. If Murphy is referring to his allegation that
“Conway request[ed] District Attorney Fitzpatrick ... institute
an unwarranted criminal action against Murphy,” (Am.
Compl. ¶ 234), then this argument would have no baring
on any claim against any defendant besides Conway, 20 as
there is nothing indicating that any defendant besides Conway
and Fitzpatrick were present or involved in this meeting,
let alone made defamatory statements during the meeting.
Further, Murphy contends that “[defendant's] investigations
and allegations against Murphy continued even as this case
progressed,” (Dkt. No. 124 at 15; Dkt. No. 125 at 15; Dkt.
No. 126 at 150; see Dkt. No. 148 at 25), yet he provides no
citations to the amended complaint in support of this position.
Finally, Murphy's contention that future discovery would cure
any defects in his defamation cause of action, (Dkt. No.
118 at 18; Dkt. No. 148 at 25), is equally unpersuasive.
See Arrindel-Martin v. City of Syracuse, No. 5:18-CV-780,
2018 WL 6622193, at *6 (N.D.N.Y. Dec. 18, 2018) (“[T]he
purpose of the plausibility standard is to require a plaintiff
to allege sufficient facts to state a claim; it is not a license
for a plaintiff to conduct a fishing expedition in an attempt to
obtain discovery that might support his allegations.” (citation
omitted)).
*17 For these reasons, Murphy's eighth cause of action for
defamation, defamation per se, slander, and libel is dismissed
as against the Sheriff Defendants and Edwards, and remains
against the non-moving defendants: Onondaga County,
the Onondaga County Sheriff's Department, Hummel,
Fitzpatrick, Carden, and Luczka.
G. Conspiracy to Defame
Murphy's ninth cause of action is for conspiracy to defame
against Onondaga County, the Onondaga County Sheriff's
Department, the Sheriff Defendants, Hummel, Fitzpatrick,
Carden, Luczka, Edwards, and Westcott. (Am. Compl. at 73.)
“In order to properly plead a cause of action to recover
damages for civil conspiracy, the plaintiff must allege a
cognizable tort, coupled with an agreement between the
conspirators regarding the tort, and an overt action in
furtherance of the agreement.” Fairstein v. Netflix, Inc.,
No. 20-cv-8042, 2021 WL 3501527, at *23 (S.D.N.Y. Aug.
9, 2021) (emphasis added) (quoting Perez v. Lopez, 948
N.Y.S.2d 312, 314 (2d Dep't 2012)).
Where a plaintiff fails to adequately plead “facts sufficient to
demonstrate the underlying tort of defamation” their claims
for civil conspiracy to commit defamation must also be
dismissed. See Sparrow Fund Mgmt. LP v. MiMedx Group,
Inc., No. 18 Civ. 4921, 2019 WL 1434719, at *12 (S.D.N.Y.
Mar. 31, 2019); see also Nunes v. Cable News Network, Inc.,
520 F. Supp. 3d 549, 561 (S.D.N.Y. Feb. 19, 2021) (“In light
of [p]laintiff's failure to plead a viable defamation claim, there
is no underlying tort to support a viable claim for conspiracy
here.”).
Because Murphy's defamation claims against the Sheriff
Defendants and Edwards are dismissed, his ninth cause
of action for conspiracy to defame as against these
same defendants and Westcott is likewise dismissed. See
Sparrow, 2019 WL 1434719, at *12. His defamation claims
remain against the non-moving parties: Onondaga County,
the Onondaga County Sheriff's Department, Hummel,
Fitzpatrick, Carden, and Luczka.
H. Intentional Infliction of Emotional Distress
Murphy's tenth cause of action alleges intentional infliction
of emotional distress (IIED) against Onondaga County,
the Onondaga County Sheriff's Department, the Sheriff
Defendants, and Hummel. (Am. Compl. at 77.)
The Sheriff Defendants argue that this claim must be
dismissed for several reasons, (Dkt. No. 88, Attach. 1 at
21-23; Dkt. No. 90, Attach. 1 at 21-23; Dkt. No. 92, Attach. 1
at 22-23; Dkt. No. 94, Attach. 1 at 22-23; Dkt. No. 96, Attach.
1 at 22-23; Dkt. No. 98, Attach. 1 at 28-20; Dkt. No. 100,
Attach. 1 at 22-23; Dkt. No. 102, Attach. 1 at 22-24), but
most notably here, because Murphy's allegations do not meet
the high standard required for a claim of intentional affliction
of emotional distress, (Dkt. No. 88, Attach. 1 at 22-23; Dkt.
No. 90, Attach. 1 at 22-23; Dkt. No. 92, Attach. 1 at 22-23;
Dkt. No. 94, Attach. 1 at 22-23; Dkt. No. 96, Attach. 1 at
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22-23; Dkt. No. 96, Attach. 1 at 22-23; Dkt. No. 98, Attach.
1 at 19-20; Dkt. No. 100, Attach. 1 at 22-23; Dkt. No. 102,
Attach. 1 at 23-24). Onondaga County, the Onondaga County
Sheriff's Department, and Hummel do not move to dismiss.
With respect to Conway, Dickinson, and Cassalia, Murphy
appears to concede this point, (Dkt. No. 116 at 23-24
(“Plaintiff's proposed amended complaint alleviates this
inadvertent error ... [a]ccordingly, plaintiff will move for an
amended complaint to alleviate this inadvertent error and
place this extreme conduct before the Court in th[i]s ...
cause[ ] of action.”); see Dkt. No. 117 at 19-20; Dkt. No.
118 at 19-20), and argues, that with respect Blumer, Peluso,
Gratien, Anderson, and Ciciarelli, the standard has been met,
(Dkt. No. 124 at 16-17; Dkt. No. 125 at 17-18; Dkt. No. 126
at 16-17).
*18 IIED is a “highly disfavored tort under New York law....
to be invoked only as a last resort.” Turley v. ISG Lackawanna,
Inc., 774 F.3d 140, 158 (2d Cir. 2014) (internal quotation
marks and citations omitted). Under New York law, IIED
has four elements: “(i) extreme and outrageous conduct; (ii)
intent to cause, or disregard of a substantial probability of
causing, severe emotional distress; (iii) a causal connection
between the conduct and the injury; and (iv) severe emotional
distress.” Chanko v. Am. Broad. Cos., 27 N.Y.3d 46, 56 (2016)
(citation omitted). As to the first element, the “conduct [must
have] been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Id. (internal quotation marks and
citation omitted). This standard is “rigorous[ ] and difficult to
satisfy.” Id. Establishing extreme and outrageous conduct “is
difficult, even at the pleadings stage.” Ifill v. United Parcel
Serv., No. 04Civ.5963, 2005 WL 736151, at *6 (S.D.N.Y.
Mar. 29, 2005) (quoting Conboy v. AT & T Corp., 84 F. Supp.
2d 492, 507 (S.D.N.Y. 2000)). Indeed, “of the IIED claims
considered by [the New York Court of Appeals], ‘every one
has failed because the alleged conduct was not sufficiently
outrageous.’ ” Taylor v. N.Y.C. Fresh Market, No. 19 CV
4797, 2020 WL 10356230, at *8 (E.D.N.Y. Dec. 23, 2020)
(quoting Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122 (1993)).
Under the IIED heading in the amended complaint, Murphy
alleges that he “was not allowed to appear in public in
uniform,” “was not allowed to supervise patrol officers,”
“was not allowed to do police work,” “was required to sit
at a desk all day, with no work, while others looked on,”
“was wrongly passed over for promotion in favor of an
officer with less experience,” and that his “wife was assaulted
without the [Sheriff's] Department so much as instituting an
investigation.” (Am. Compl. ¶ 391; see id. ¶ 245.) These
allegations do not meet the standard for IIED. See Kolchinsky
v. Moody's Corp., No. 10 Civ. 6840, 2012 WL 639162, at
*1-3, 7 (S.D.N.Y. Feb. 28, 2012) (holding that, where a
plaintiff alleged, because of his role as a whistle blower, he
was barred from meetings, demoted, had his responsibilities
and salary decreased, defamed, and ultimately suspended
from the company, that these “allegations do not have a
hint” of the required extreme and outrageous conduct); see
also Ifill v. United Parcel Serv., No. 04Civ.5963, 2005 WL
736151, at *1-2, 7 (S.D.N.Y. Mar. 29, 2005) (finding that
allegations that employer harassed, discriminated, demoted,
and retaliated against plaintiff were insufficient to state IIED).
For this reason, Murphy's tenth cause of action for IIED is
dismissed as against the Sheriff Defendants. This cause of
action remains against the non-moving defendants: Onondaga
County, the Onondaga County Sheriff's Department, and
Hummel.
I. Negligent Infliction of Emotional Distress
Murphy's eleventh cause of action is for negligent infliction
of emotional distress (NIED) against Onondaga County,
the Onondaga County Sheriff's Department, the Sheriff
Defendants, Hummel, Fitzpatrick, Carden, and Luczka. (Am.
Compl. at 79.)
The Sheriff Defendants argue that this cause of action must
be dismissed against them because none of the Sheriff
Defendants breached a duty owed to Murphy which resulted
in a threat or endangerment to his physical safety. (Dkt. No.
88, Attach. 1 at 24-25; Dkt. No. 90, Attach. 1 at 24-25; Dkt.
No. 92, Attach. 1 at 24-25; Dkt. No. 94, Attach. 1 at 24-25;
Dkt. No. 96, Attach. 1 at 24; Dkt. No. 98, Attach. at 21;
Dkt. No. 100, Attach. 1 at 24-25; Dkt. No. 102, Attach. 1
at 25.) Onondaga County, the Onondaga County Sheriff's
Department, Hummel, Fitzpatrick, Carden, and Luczka do not
move to dismiss.
With respect to Conway, Dickinson, and Cassalia, Murphy
appears to concede this point. (Dkt. No. 116 at 23-24; Dkt.
No. 117 at 19-20; Dkt. No. 118 at 19-20), and completely fails
to address Blumer, Peluso, Gratien, Anderson, and Ciciarelli's
arguments regarding NIED. (Dkt. No. 124 at 16-17; Dkt. No.
125 at 17-18; Dkt. No. 126 at 16-17.)
*19 Under New York law, a plaintiff may establish a claim
for NIED in two ways, under the “bystander theory” or “direct
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duty theory.” See Mortise v. United States, 102 F.3d 693, 696
(2d Cir. 1996). A plaintiff may recover “under the ‘bystander’
theory when: (1) [he] is threatened with physical harm as a
result of defendant's negligence; and (2) consequently [he]
suffers emotional injury from witnessing the death or serious
bodily injury of a member of [his] immediate family.” Id.
(citation omitted); see Quinn v. U.S., 946 F. Supp. 2d 267, 278
(N.D.N.Y. 2013). “A plaintiff may recover under a direct duty
theory when [he] suffers an emotional injury from defendant's
breach of a duty which unreasonably endangered [his] own
physical safety.” Quinn, 946 F. Supp. 2d at 278 (internal
quotation marks and citation omitted); see Mortise v. United
States, 102 F.3d 693, 696 (2d Cir. 1996). Importantly, “[t]he
duty in such cases must be specific to the plaintiff, and not
some amorphous, free-floating duty to society.” See Mortise,
102 F.3d at 696 (citation omitted); see also Burroughs v.
Mitchell, 325 F. Supp. 3d 249, 285 (N.D.N.Y. 2018).
Murphy appears to seek recovery under a direct duty theory.
(Am. Compl. ¶¶ 393-99.) However, Murphy does not plead
that any of the Sheriff Defendants owned him a specific
duty, but rather that “[d]efendants had a duty not only to
avoid such conduct but, to conduct themselves in a civilized
and professional manner.” (Am. Compl. ¶ 395.) Because
Murphy has failed to plead a violation of a specific duty
owed to him to him by any of the defendants, his eleventh
cause of action for NIED is dismissed as against the Sheriff
Defendants. See Burroughs, 325 F. Supp. 3d at 285; see also
Leibenguth v. U.S., No. 08-CV-6008, 2009 WL 3165846, at
*4 (W.D.N.Y. Sept. 29, 2009). This claim remains against
the non-moving defendants: Onondaga County, the Onondaga
County Sheriff's Department, Hummel, Fitzpatrick, Carden,
and Luczka.
J. Murphy's Other Motions
Although it is admittedly not entirely clear to the court the full
extent of the relief sought by Murphy in his motion informing
the court of alleged “improprieties” by defendants, (Dkt. No.
156), and his August 30, 2021, letter motion, (Dkt. No. 159),
to the extent they seek relief inconsistent with the above, they
are denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Conway's motion for judgment on the
pleadings (Dkt. No. 88) is GRANTED IN PART and
DENIED IN PART as follows:
GRANTED as to the following claims, which are
DISMISSED, Murphy's RICO claims; § 1985 conspiracy
claim; retaliation claim pursuant to Article 1, Section 8 of
the New York State Constitution; § 1983 equal protection
claim; defamation claims; conspiracy to defame claim;
IIED; and NIED; and
DENIED in all other respects; and it is further
ORDERED that Blumer's motion for judgment on the
pleadings (Dkt. No. 90) is GRANTED IN PART and
DENIED IN PART as follows:
GRANTED as to the following claims, which are
DISMISSED, Murphy's RICO claims; § 1985 conspiracy
claim; retaliation claim pursuant to Article 1, Section 8 of
the New York State Constitution; § 1983 equal protection
claim; defamation claims; conspiracy to defame claim;
IIED; and NIED; and
DENIED in all other respects; and it is further
ORDERED that Peluso's motion for judgment on the
pleadings (Dkt. No. 92) is GRANTED IN PART and
DENIED IN PART as follows:
GRANTED as to the following claims, which are
DISMISSED, Murphy's RICO claims; § 1985 conspiracy
claim; retaliation claim pursuant to Article 1, Section 8 of
the New York State Constitution; § 1983 equal protection
claim; defamation claims; conspiracy to defame claim;
IIED; and NIED; and
DENIED in all other respects; and it is further
ORDERED that Gratien's motion for judgment on the
pleadings (Dkt. No. 94) is GRANTED IN PART and
DENIED IN PART as follows:
*20 GRANTED as to the following claims, which are
DISMISSED, Murphy's RICO claims; § 1985 conspiracy
claim; retaliation claim pursuant to Article 1, Section 8 of
the New York State Constitution; § 1983 equal protection
claim; defamation claims; conspiracy to defame claim;
IIED; and NIED; and
DENIED in all other respects; and it is further
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ORDERED that Anderson's motion for judgment on the
pleadings (Dkt. No. 96) is GRANTED IN PART and
DENIED IN PART as follows:
GRANTED as to the following claims, which are
DISMISSED, Murphy's RICO claims; § 1985 conspiracy
claim; retaliation claim pursuant to Article 1, Section 8 of
the New York State Constitution; § 1983 equal protection
claim; defamation claims; conspiracy to defame claim;
IIED; and NIED; and
DENIED in all other respects; and it is further
ORDERED that Cassalia's motion for judgment on the
pleadings (Dkt. No. 98) is GRANTED; and it is further
ORDERED that Ciciarelli's motion for judgment on the
pleadings (Dkt. No. 100) is GRANTED; and it is further
ORDERED that Dickinson's motion for judgment on the
pleadings (Dkt. No. 102) is GRANTED IN PART and
DENIED IN PART as follows:
GRANTED as to the following claims, which are
DISMISSED, Murphy's RICO claims; § 1985 conspiracy
claim; retaliation claim pursuant to Article 1, Section 8 of
the New York State Constitution; § 1983 equal protection
claim; defamation claims; conspiracy to defame claim;
IIED; and NIED; and
DENIED in all other respects; and it is further
ORDERED that the following claims remain: Murphy's
third and fourth causes of action for § 1983 retaliation
against Onondaga County, the Onondaga County Sheriff's
Department, Conway, Dickinson, Blumer, Anderson, Peluso,
Gratien, Hummel, Fitzpatrick, Carden, Luczka; Murphy's
eighth cause of action for defamation, defamation per se,
libel, and slander against Onondaga County, the Onondaga
County Sheriff's Department, Hummel, Fitzpatrick, Carden,
and Luczka; Murphy's ninth cause of action for conspiracy
to commit defamation, defamation per se, libel, and slander
against Onondaga County, the Onodaga County Sheriff's
Department, Hummel, Fitzpatrick, Carden, and Luczka;
Murphy's tenth cause of action for IIED against Onondaga
County, the Onondaga County Sheriff's Department, and
Hummel; and, Murphy's eleventh cause of action for NIED
against Onondaga County, the Onondaga County Sheriff's
Department, Hummel, Fitzpatrick, Carden, and Luczka; and
it is further
ORDERED that Murphy's motion to amend the amended
complaint (Dkt. No. 123) is DENIED as moot; and it is
further
ORDERED that Edwards and Westcott's motion to dismiss
(Dkt. No. 143) is GRANTED; and it is further
ORDERED that Edwards and Westcott's motion regarding
Murphy's proposed amended complaint (Dkt. No. 144) is
GRANTED IN PART and DENIED IN PART as follows:
GRANTED to the extent it sought denial of Murphy's
motion to amend, and
DENIED in all other respects; and it is further
ORDERED that the Sheriff Defendants’ motion requesting
guidance in responding to the amended RICO statement (Dkt.
No. 155) is DENIED as moot; and it is further
ORDERED that the following defendants are dismissed:
Cassalia, Ciciarelli, Cambareri, Edwards, and Westcott; and
it is further
ORDERED that Murphy's motion informing the court of
alleged “improprieties” by defendants, requesting that the
amended RICO statement be accepted as timely, and seeking
to file a further amended complaint (Dkt. No. 156) is
DENIED; and it is further
*21 ORDERED that Murphy's motion to amend the RICO
statement, (Dkt. No. 157) is DENIED; and it is further
ORDERED that Murphy's August 30, 2021, letter motion
(Dkt. No. 159), to the extent it seeks relief from the court, is
DENIED; and it is further
ORDERED that Murphy's motion to amend, (Dkt. No. 170)
is DENIED; and it is further
ORDERED that the parties shall contact Magistrate Judge
Christian F. Hummel to schedule further proceedings; and it
is further
ORDERED that the Clerk provide a copy of this
Memorandum-Decision and Order to the parties.
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IT IS SO ORDERED. All Citations
Not Reported in Fed. Supp., 2022 WL 819281, RICO
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Footnotes
1 Plaintiff refers to Dickinson as both “Dickinson” and “Dickenson,” the court will refer to this defendant as
Dickinson.
2 For the sake of clarity, Dkt. No. 60, is deemed the operative pleading. On June 7, 2019, Murphy filed a motion
to amend the complaint. (Dkt. No. 50.) The motion was unopposed, and the clerk of the court was directed to
file Exhibit A to the motion, (Dkt. No. 50, Attach. 1), as the amended complaint, (Dkt. No. 53). On July 1, 2019,
the amended complaint was filed. (Dkt. No. 56.) However, on July, 2, 2019, the amended complaint was filed
again, by Murphy, with the only apparent change being the inclusion of counsel's name. (Dkt. No. 58.) Then
again the amended complaint was filed on July 19, 2019, by Murphy, this time attaching previously omitted
summonses. (Dkt. No. 60.) To the extent defendants address Dkt. No. 56, 58, and/or 60 in their submissions,
the court will construe them as against Dkt. No. 60.
3 The facts are drawn from Murphy's amended complaint, (Dkt. No. 60), and presented in the light most
favorable to him.
4 The amended complaint contains two paragraphs numbered “158” and two numbers “159.” To the extent
these paragraph are cited, they will be denoted as “158a” and “158b,” and “159a” and “159b.”
5 On August 8, 2021, Murphy filed a motion informing the court of alleged “improprieties” by defendants,
requesting that the amended RICO statement be accepted as timely, and seeking to file a further amended
complaint. (Dkt. No. 156.) To the extent this motion sought leave to amend, it is denied as moot for the same
reasons. Further, Edwards and Westcotts’ motion regarding Murphy's proposed amended complaint, (Dkt.
No. 144), is granted, to the extent it sought denial of Murphy's motion to amend, and denied in all other
respects.
6 For example, Murphy's amended complaint contains multiple errors in paragraph numbering (e.g. subsequent
paragraphs being numbered as follows: 157, 158, 159, 158, 159, 160; 266, 195, 267; and omitting paragraph
number 248). Further, the amended complaint spells defendant's names in alternating fashions (e.g.
Dickinson and Dickenson; Blumer and Bloomer). In his response to Ciciarelli's motion for judgment on the
pleadings, (Dkt. No. 100), Murphy refers to defendant Conway rather than Ciciarelli, (Dkt. No. 126 at 5).
Many of Murphy's responses to the Sheriff Defendants’ Rule 12(c) motions contained errors in the table of
contents, including omitting or repeating Roman numerals (e.g., subsequent sections being enumerated as
follows: I., III., V., VI.; and repeating the numeral VII.). (See, e.g., Dkt. No. 124.) Murphy submitted his motion
to amend without a cover page and unsigned. (Dkt. No. 170.) In Murphy's response to Cassalia's motion for
judgment on the pleadings, (Dkt. No. 98), Murphy responds to a statute of limitations argument that was not
made by Cassalia, (Dkt. No. 118 at 17-18.) Finally, in his various responses to the Sheriff Defendants’ Rule
12(c) motions, Murphy completely fails to address arguments made by these defendants. (See, e.g., Dkt.
No. 125 (failing to address arguments regarding his § 1983 retaliation claims).) While the court can tolerate
the occasional inadvertent typographical error, Murphy's errors are numerous, and occur after his counsel
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has requested a substantial amount of extension of filing deadlines. (Dkt. No. 106; Dkt. No. 109; Dkt. No.
114; Dkt. No. 119; Dkt. No. 146.)
7 Cambareri is not listed as a defendant in any of the causes of action headings in the amended complaint, but
is listed as a defendant in the paragraphs following Murphy's first cause of action, (Am. Compl. ¶¶ 250-53),
therefore the court will construe Cambareri as a defendant to Murphy's first cause of action only.
8 Unless otherwise noted, for all of Murphy's causes of action, the individual defendants are sued in their
individual and official capacities.
9 See supra note 2.
10 While the amended complaint refers to an individual named “Bloomer,” out of an abundance of caution, the
court will assume this was an error by Murphy, and assume he intended to refer to defendant Blumer.
11 Murphy also pleads numerous “lesser” actions, which, when considered together would “deter a similarly
situated individual of ordinary firmness from exercising his or her constitutional rights.” Zelnik, 464 F.3d
at 225-26; see Philips v. Bowan, 278 F.3d 103, 109 (2d Cir. 2002). For example, Murphy alleges he was
forbidden from giving orders to subordinates, forbidden from using a patrol car or from displaying his uniform
in public, “subject[ed] to threatening and abusive behavior” by others in the department, had his overtime
opportunities reduced, was “ordered to undertake menial tasks under circumstances that were deliberately
chosen to cause him physical discomfort and agitation,” was arbitrarily transferred, and was “subjected to
public ridicule and embarrassment.” (Am. Compl. ¶ 245.)
12 Further, with respect to Peluso, the amended complaint also alleges that shortly after raising concerns
to Peluso that a complainant was not properly “attent[ed to] by [the Sheriff's Department] ... due to [the
complainant's] ethnic background and her sex,” Murphy was aggressively confronted by Peluso, who later
filed a “vacuous” internal complaint against Murphy which was “specifically intended to prevent ... Murphy
from being promoted.” (Am. Compl. ¶¶ 44-55, 63-66, 101.) This further demonstrates a causal connection
between Murphy's speech and the adverse employment actions carried out by Peluso. See Shanks, 653 F.
Supp. 2d at 167.
13 To the extent Murphy makes this argument with respect to his other causes of action, it is similarly
unpersuasive. (See, e.g., Dkt. No. 116 at 21, 23-24; Dkt. No. 117 at 14, 19-20; Dkt. No. 118 at 14, 19-20;
Dkt. No. 124 at 15; Dkt. 125 at 15-16; Dkt. No. 126 at 15.)
14 Murphy's argument that he is a member of a “class of one,” (see, e.g., Dkt. No. 125 at 13), is inapplicable
here. See infra Part IV.E.; see also Volunteer Fire Ass'n of Tappan, Inc. v. Cty. of Rockland, No. 09-CV-4622,
2010 WL 4968247, at *8 n.13 (S.D.N.Y. Nov. 24, 2010) (“A plaintiff alleging a Section 1985 violation may not
proceed under a ‘class of one’ theory.” (citation omitted)).
15 Because Murphy is represented by counsel, his amended complaint is not entitled to the special solicitude
afforded to pro se pleadings. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006).
Therefore, the court has not considered whether the amended complaint states a claim pursuant to the first
clause of § 1985(2), which requires that a plaintiff plead: “(1) a conspiracy between two or more persons,
(2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending
matter, which (3) results in injury to the plaintiff,” Greene v. City of New York, No. 08-cv-00243, 2017 WL
1030707, at *31 (E.D.N.Y. Mar. 15, 2017) (quoting Chalal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir.
1984)), and which does not require a showing of any class-based animus. See Kush v. Rutledge, 460 U.S.
719, 726 (1983); c.f. Langton v. Town of Chester, No. 14 Civ. 9474, 2017 WL 6988708, at *6 (S.D.N.Y. Sept.
26, 2017) (citation omitted).
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 157 of 240

Murphy v. Onondaga County, Not Reported in Fed. Supp. (2022)
RICO Bus.Disp.Guide 13,617
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 18
16 The Sheriff Defendants’ argument that Murphy has failed to state a claim for defamation appears to be
premised on the more stringent pleading requirements of N.Y. C.P.L.R. § 3016(a), which requires that “the
particular words complained of shall be set forth in the complaint.” (See, e.g., Dkt. No. 88, Attach. 1 at 19.)
While the amended complaint does not meet this standard, “state procedural rules do not apply to federal
courts ... and federal courts instead apply the pleading standards set forth in Rule 8 of the Federal Rules
of Civil Procedure.” Nouinou v. Smith, No. 20-CV-8682, 2021 WL 4340952, at *5 (S.D.N.Y. Sept. 22, 2021)
(citing Treistman v. Wacks, No. 12-CV-1897, 2017 WL 639322, at *4 (N.D.N.Y. 2017)); but see Nichols v.
BAC Home Loans Servicing LP, No. 1:13-CV-00224, 2013 WL 5723072, at *12 (N.D.N.Y. Oct. 18, 2013)
(applying the heightened pleading standard of C.P.L.R. 3016 and requiring the plaintiff to plead “the particular
words giving rise to his [defamation] claim”). However, as explained herein, Murphy's cause of action fails
under either pleading standard.
17 The court will not discuss statements attributable to any of the defendants that are clearly non-defamatory,
such as: “Blumer indicated that she would address the matter with the deputy,” (Am. Compl. ¶ 90), “Peluso ...
stated ... that when he ‘sixes’ a complaint, it stays ‘sixed,’ ” (id. ¶ 63), or “Ciciarelli informed Murphy that Gratien
had not recorded the fact of the illegal search and seizure in his Duty Commander log for that night,” (id.
¶ 110). See Premier Med. Sys., LLC v. NeuroLogica Corp., No. 1:21-cv-1337, 2022 WL 603999, at *12
(S.D.N.Y. Feb. 28, 2022) (finding that a defamatory statement must “expose the plaintiff to public contempt,
ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and ...
deprive him of ... friendly intercourse in society”) (citation omitted).
18 Murphy also alleges, with respect to Dickinson, that, after Murphy brought this suit, Dickinson made “had
several improper, unsupported and baseless referrals to the Onondaga County Sheriff's Office Internal Affairs
Office.” (Am. Compl. ¶ 229.) Murphy does not provide the content of these referrals, however, and, thus,
this allegation does not allow him to avoid dismissal as to Dickinson. See Hillary, 2015 WL 902930, at *11
(holding that, for a defamation claim to survive a motion to dismiss, a plaintiff must “identify ... the allegedly
defamatory statements” (citation omitted)).
19 Murphy lists five ambiguous statements within his defamation cause of action, none of which are attributed
to a particular defendant. (Am. Compl. ¶ 360.) To the extent these are alleged as against Cassalia, Ciciarelli,
or any of the defendants, they do not make out a claim of defamation. See Hillary, 2015 WL 902930, at *11
(for a defamation claim to survive a motion to dismiss a plaintiff must “identify ... the person who made the
statements” (citation omitted)).
20 For the reasons noted above, Murphy's defamation claims against Conway are dismissed, regardless of this
argument.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Myers v. Wollowitz, Not Reported in F.Supp. (1995)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1995 WL 236245
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James N. MYERS, Jr., Plaintiff,
v.
Heather WOLLOWITZ, Attorney, Defendant.
No. 95–CV–0272 (TJM) (RWS).
|
April 10, 1995.
Attorneys and Law Firms
James N. Myers, Jr., Troy, NY, pro se.
DECISION AND ORDER
McAVOY, Chief Judge.
I. Background
*1 Presently before this Court is the above-captioned
plaintiff's application to proceed in forma pauperis and civil
rights complaint. Plaintiff has not paid the partial filing fee
required to maintain this action.
For the reasons stated below, plaintiff's complaint is dismissed
pursuant to 28 U.S.C. § 1915(d) and Local Rule 5.4(a) of the
General Rules of this Court as without arguable basis in law.
In his pro se complaint, plaintiff seems to claim that plaintiff
was represented by defendant Wollowitz, a public defender
for the County of Rensselaer, in a County Court proceeding.
Plaintiff alleges that after a criminal proceeding in that Court,
plaintiff was “sentenced to a illegal sentence.” Id. at 2.
Plaintiff contends that due to the ineffective assistance of his
counsel, defendant Wollowitz, his constitutional rights were
violated. For a more complete statement of plaintiff's claims,
reference is made to the entire complaint filed herein.
II. Discussion
Consideration of whether a pro se plaintiff should be
permitted to proceed in forma pauperis is a two-step
process. First, the court must determine whether the plaintiff's
economic status warrants waiver of fees and costs under 28
U.S.C. § 1915(a). If the plaintiff qualifies by economic status,
the court must then consider whether the cause of action
stated in the complaint is frivolous or malicious. Moreman
v. Douglas, 848 F.Supp. 332, 333 (N.D.N.Y.1994) (Scullin,
J.); Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d
Cir.1983) (per curiam).
In the present case, upon review of the plaintiff's inmate
account statements, the Court has determined that plaintiff's
financial status qualifies him to file or “commence” this action
in forma pauperis. 28 U.S.C. § 1915(a). Turning to the second
inquiry, a court may “dismiss the proceeding under 28 U.S.C.
§ 1915(d) if the court thereafter determines that ... the action
is frivolous or malicious.” Moreman, 848 F.Supp. at 333
(citation omitted).
In determining whether an action is frivolous, the court
must look to see whether the complaint lacks an arguable
basis either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). Although the court has the duty to
show liberality towards pro se litigants, Nance v. Kelly,
912 F.2d 605, 606 (2d Cir.1990) (per curiam), and extreme
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), there
is a responsibility on the court to determine that a claim is
not frivolous before permitting a plaintiff to proceed with
an action in forma pauperis. Dismissal of frivolous actions
pursuant to 28 U.S.C. § 1915(d) is appropriate to prevent
abuses of the process of the court, Harkins v. Eldredge, 505
F.2d 802, 804 (8th Cir.1974), as well as to discourage the
waste of judicial resources. Neitzke, 490 U.S. at 327. See
generally Moreman, 848 F.Supp. at 334.
*2 42 U.S.C. § 1983 is the vehicle by which individuals
may seek redress for alleged violations of their constitutional
rights. See, e.g., Von Ritter v. Heald, 91–CV–612, 1994 WL
688306, *3, 1994 U.S.Dist. LEXIS 17698, *8–9 (N.D.N.Y.
Nov. 14, 1994) (McAvoy, C.J.). A party may not be held
liable under this section unless it can be established that the
defendant has acted under the color of state law. See, e.g.,
Rounseville v. Zahl, 13 F.3rd 625, 628 (2d Cir.1994) (noting
state action requirement under § 1983); Wise v. Battistoni,
92–Civ–4288, 1992 WL 380914, *1, 1992 U.S.Dist. LEXIS
18864, *2–3 (S.D.N.Y. Dec. 10, 1992) (same) (citations
omitted).
In the present case, the sole defendant named by plaintiff
is the Rensselaer County public defender who apparently
represented plaintiff in the criminal proceeding discussed in
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Myers v. Wollowitz, Not Reported in F.Supp. (1995)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
his complaint. See Complaint at 2. However, “[i]t is well
settled that an attorney's representation of a party to a court
proceeding does not satisfy the Section 1983 requirement that
the defendant is alleged to have acted under color of state
law....” Wise, 1992 WL 380914 at *1, 1992 U.S.Dist. LEXIS
18864 at *2–3; see also D'Ottavio v. Depetris, 91–Civ–6133,
1991 WL 206278, *1, 1991 U.S.Dist. LEXIS 13526, *1–2
(S.D.N.Y. Sept. 26, 1991).
Since the plaintiff has not alleged any state action with
respect to the Section 1983 claim presently before the Court,
plaintiff's complaint, as presented to this Court, cannot be
supported by any arguable basis in law and must therefore be
dismissed pursuant to 28 U.S.C. § 1915(d). Neitzke, 490 U.S.
at 328.
Accordingly, it is hereby
ORDERED, that leave to proceed or prosecute this action in
forma pauperis is denied, and it is further
ORDERED, that this action is dismissed pursuant to 28
U.S.C. § 1915(d) and Local Rule 5.4(a) of the General Rules
of this Court as lacking any arguable basis in law, and it is
further
ORDERED, that the Clerk serve a copy of this Order on the
plaintiff by regular mail.
I further certify that any appeal from this matter would not be
taken in good faith pursuant to 28 U.S.C. § 1915(a).
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp., 1995 WL 236245
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 160 of 240

Phillips v. Schenectady Child Support Unite, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 895035
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Julius PHILLIPS, Plaintiff,
v.
SCHENECTADY CHILD SUPPORT
UNITE, et al., Defendants.
No. 1:24-CV-853 (BKS/PJE)
|
Signed March 24, 2025
Attorneys and Law Firms
Julius Phillips, 800 State Street, Apt. 105, Schenectady, New
York 12307, Plaintiff pro se.
REPORT-RECOMMENDATION AND ORDER 1
PAUL J. EVANGELISTA, UNITED STATES
MAGISTRATE JUDGE
I. In Forma Pauperis
*1 Plaintiff pro se Julius Phillips (“plaintiff”) commenced
this action on July 5, 2024, by filing a complaint. See Dkt.
No. 1. In lieu of paying this Court's filing fee, he submitted
an application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Pursuant to this review, this Court must now
assess the merits of plaintiff's complaint pursuant to 28 U.S.C.
§ 1915. 3
II. Initial Review
A. Legal Standard
28 U.S.C. § 1915 directs that, when a plaintiff seeks to
proceed IFP, “the court shall dismiss the case at any time if
the court determines that ... the action or appeal (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
“Thus, it is a court's responsibility to determine that a plaintiff
may properly maintain his complaint before permitting him
to proceed further with his action.” Praileau v. Fischer, 930
F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per
curiam) (internal quotation marks omitted). As the Second
Circuit stated,
[t]here are many cases in which we
have said that a pro se litigant is
entitled to special solicitude, that a
pro se litigant's submissions must
be construed liberally, and that such
submissions must be read to raise the
strongest arguments that they suggest.
At the same time, our cases have
also indicated that we cannot read
into pro se submissions claims that
are not consistent with the pro se
litigant's allegations, or arguments that
the submissions themselves do not
suggest, that we should not excuse
frivolous or vexatious filings by pro
se litigants, and that pro se status does
not exempt a party from compliance
with relevant rules of procedural and
substantive law ....
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir. 2006) (internal quotation marks, citations, and footnote
omitted); see also Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too
numerous to count, we have reminded district courts that
when [a] plaintiff proceeds pro se, ... a court is obligated to
construe his pleadings liberally.”) (internal quotation marks
and citations omitted). Thus, the Court is not required to
accept unsupported allegations that are devoid of sufficient
facts or claims. Although detailed allegations are not required
at the pleading stage, the complaint must still include enough
facts to provide the defendants with notice of the claims
against them and the grounds upon which these claims are
based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
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Ultimately, the plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).
*2 “The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure. 4 ”
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL
6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo
v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). 5 Specifically, Rule 8
provides that a pleading which sets forth a claim for relief
shall contain, among other things, “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). “The purpose ... is to give fair
notice of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
55 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Rule 8 also requires the pleading to include “(1)
a short and plain statement of the grounds for the court's
jurisdiction ... and (3) a demand for the relief sought ....” FED.
R. CIV. P. 8(a). Although “[n]o technical form is required,”
the Federal Rules make clear that each allegation contained
in the pleading “must be simple, concise, and direct.” FED.
R. CIV. P. 8(d).
Further, Rule 10 provides in pertinent part that:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence—and each
defense other than a denial—must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of defendants’ duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
B. Plaintiff's Complaint 6
On a civil complaint form, plaintiff checks the boxes
that indicate that this Court has subject matter jurisdiction
pursuant to federal question and diversity of citizenship
jurisdiction. See Dkt. No. 1 at 3. Plaintiff states that his Fourth,
Fifth, Seventh, and Fourteenth Amendment rights have been
violated because “[c]hild support say they take $83 weekly
but they don't they take $124.50 weekly and it is still be [sic]
deducted from my check. Child support also said I'm paying
for two kids when I only had one child with the defendant.”
Id. at 4. Plaintiff alleges that the “fraud agency called child
support ... is frauding me stealing from me and ... violated my
civil rights my constitutional rights and my New York State
rights.” Dkt. No. 1-1 at 1. “[T]hey had no case no contract or
bond with my signature no consent form with my signature no
injured party and they still persist on stealing my hard earned
money.” Id. “I never [p]ut my signature on anything but the
agreement for the video conference that's all if they say my
signature is on anything else it is fraudulent I never signed
anything or never gave the consent for anything....” Id. at 2.
“I never volunteered or gave consent to join the child support
program and I know that I cant be forced into no contractual
contract thats what it looks like Child Support is doing to me.”
Dkt. No. 1-2 at 1. “They say I owe over $6000 dollars so that's
over $20 to where the magistrate called for a trial and never
had the jury I asked for....” Dkt. No. 1-1 at 6. “I am being sued
for a debt that is not mines [sic].” Dkt. No. 1-2 at 1. Plaintiff
claims that he requested “department record[s] related to the
debt” but “never got it.” Dkt. No. 1-1 at 1.
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Phillips v. Schenectady Child Support Unite, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
*3 Plaintiff contends that “child support agreements are
equivalent to interstate contracts” and violate the Federal
Consumer Credit Protection Act because they act as an
“excessive wage garnishment.” Dkt. No. 1-1 at 2-3 (citing 15
U.S.C. § 1167(a)). He states that he is a “victim of forced
labor” and “feel[s] that way is because” if he “can't work
or give them payment they (child support) will suspend my
[driver's] license which is not legal they (child support) can't
do that they would throw me in jail for how ever long ....” Id.
at 6-7.
Plaintiff summarized his complaint by stating:
I ask for this case #66054k1 to please
be appealed and dropped under all
this wrong doing they doing. And I
really want to know how or what
the magistrate ruling was in the fact-
finding hearing if I neglected my son
for 12 months no contact and no plan
for the future of my son or did I
abandoned [sic] my son for 6 months I
don't see how he would come up with
this ruling when the Court appointed
lawyer told for m[e] so [sic] told the
Court and the magistrate that I was in
his life and we talk.
Dkt. No. 1-1 at 8. “I would like to ... start a § 1983 law suit
[sic] and a fraud lawsuit under ... for fraudulent filings of
information returns [sic] against all involved in the list I wrote
down.” Id. Plaintiff requests the Court to award damages
of $5,000,000.00, and alternatively, $10,000,000.00 for “the
violation [of his] right [sic] the stress the blood and tears [of
his child's mother] hold [his] child [sic] not letting [plaintiff]
see him ... and the money back that's been stolen from [him].”
Dkt. No. 1 at 4-5; Dkt. No. 1-1 at 8.
C. Analysis
Liberally construing plaintiff's complaint, he seeks to bring
claims under 42 U.S.C. § 1983 7 against the Schenectady
County Child Support Unit; the Division of Child Support
Enforcement Newport News District Office; the Schenectady
County Family Court; Bruce J. Wagner, Support Magistrate;
Dylan Reilly, Deputy County Attorney; and Rebecca
Bauscher, child attorney. 8 , 9 See generally Dkt. No. 1; Dkt.
No. 1-1 at 1, 8-9; Dkt. No. 1-3, see also Triestman, 470 F.3d at
475. (“This policy of liberally construing pro se submissions
is driven by the understanding that ‘[i]mplicit in the right of
self-representation is an obligation on the part of the court to
make reasonable allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their lack
of legal training.’ ”) (quoting Traguth v. Zuck, 710 F.2d 90,
95 (2d Cir. 1983)).
1. Rooker-Feldman Doctrine
*4 “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.” Gerken v. Gordon, No. 1:24-CV-00435
(MAD/CFH), 2024 WL 4608307, at *4 (N.D.N.Y. Oct.
29, 2024), report and recommendation adopted, No. 1:24-
CV-435 (MAD/CFH), 2024 WL 5001402 (N.D.N.Y. Dec. 6,
2024) (quoting Porter v. Nasci, No. 5:24-CV-0033 (GTS/
TWD), 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024)
(citations omitted), report and recommendation adopted,
2024 WL 3158645 (N.D.N.Y. June 25, 2024)); see Dorce v.
City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (“The Rooker-
Feldman doctrine bars federal district courts from hearing
cases that in effect are appeals from state court judgments,
because the Supreme Court is the only federal court with
jurisdiction over such cases.”) (citing Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983)). “This includes
when a litigant seeks relief that invites a federal district court
to reject or overturn a final decision of a New York Family
Court as to a child support dispute brought in that state
court.” Gerken, 2024 WL 4608307, at *4 (quoting Sims v.
Kaufman, No. 23-CV-7927 (LTS), 2024 WL 757338, at *4
(S.D.N.Y. Feb. 14, 2024)) (citing Legister v. Radowitz, No.
1:20-CV-9330 (LLS), 2020 WL 7405672, at *3 (S.D.N.Y.
Dec. 16, 2020) (“A plaintiff's challenge in a federal district
court to the validity or enforcement of [a] child support order
itself is barred by the Rooker-Feldman doctrine.”)).
The Rooker-Feldman doctrine applies if: “(1) the plaintiff lost
in state court; (2) the plaintiff complains of injuries caused by
the state court judgment; (3) the plaintiff requests the district
court to review and reject the state court judgment; and (4)
the state court judgment was rendered before the proceedings
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Phillips v. Schenectady Child Support Unite, Slip Copy (2025)
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commenced in the district court.” Gerken, 2024 WL 4608307,
at *4 (quoting DeMeo v. Kean, 754 F. Supp. 2d 435, 448
(N.D.N.Y. 2010)) (citing V.S. v. Muhammad, 595 F.3d 426,
430 (2d Cir. 2010)); see also Fernandez v. Turetsky, No. 12-
CV-4092 (SLT/MDG), 2014 WL 5823116, at *4 (E.D.N.Y.
Nov. 7, 2014) (collecting cases and noting that “[c]ourts have
repeatedly invoked the [Rooker-Feldman] doctrine in cases ...
in which plaintiffs challenge family court decrees setting child
support arrears”), aff'd, 645 F. App'x 103 (2d Cir. 2016)
(summary order).
Here, although many of plaintiff's assertions are unclear,
liberally read, plaintiff's complaint asks the Court to review
and reverse a child custody and child support order, invalidate
a judgment for child support arrears, reimburse monies that
were garnished against his wages, and order the Schenectady
County Family Court to provide him with information and
documentation that he previously requested. See generally
Dkt. No. 1, Dkt. No. 1-1, Dkt. No. 1-2. Plaintiff appears
to have “lost in state court,” complains of injuries caused
by a state court judgment, and asks the Court to invalidate
a state court's order regarding child support payments and
a state court's judgment for child support arrears that were
entered before the commencement of this proceeding. See
generally Dkt. No. 1-1, Dkt. No. 1-2, Dkt. No. 1-12. “Under
the Rooker-Feldman doctrine, this Court may not do so.”
Gerken, 2024 WL 4608307, at *4 (quoting Fernandez, 2014
WL 5823116, at *4); see, e.g., Phillips v. Wagner, No. 1:22-
CV-0833 (DNH/ML), 2022 WL 17406092, at *3 (N.D.N.Y.
Nov. 4, 2022) 10 (recommending dismissal for lack of subject
matter jurisdiction because “[the p]laintiff's claims, while
not entirely clear, seem to challenge an order by the Family
Court, issued before [the p]laintiff filed this action, in which
the Family Court determined that he owes child support ....
Thus, [the p]laintiff's claims for relief are barred by the
Rooker-Feldman doctrine ...”), report and recommendation
adopted, 2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022),
appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir.
Apr. 25, 2023); Walker v. O'Connor, No. 1:22-CV-581 (DNH/
TWD), 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022),
report and recommendation adopted, 2022 WL 2805462
(N.D.N.Y. July 18, 2022) (recommending dismissal of the
plaintiff's complaint where it “appears [the p]laintiff ‘lost’ in
New York State Family Court, complains of injuries caused
by that court's judgments, and asks this Court to invalidate
those judgments on the grounds that they violated her due
process rights.”).
*5 “[T]o the extent plaintiff could try to contend that his
claims are reviewable because they relate to the alleged
improper enforcement of the Family Court judgment rather
than the judgment itself ... Rooker-Feldman also bars such
claims because the enforcement is inextricably intertwined
with the state court judgment.” Sorenson v. Suffolk Cnty.
Child Support Enf't Bureau, No. 07-CV-03755 (JFB/AKT),
2009 WL 580426, at *7 (E.D.N.Y. Mar. 5, 2009) (citations
omitted); Fernandez, 2014 WL 5823116, at *4 (same);
see also Bowen v. Gordon, No. 1:24-CV-114 (LEK/DJS),
2024 WL 2053155, at *2 (N.D.N.Y. Feb. 20, 2024), report
and recommendation adopted, No. 1:24-CV-114 (LEK/DJS),
2024 WL 1826595 (N.D.N.Y. Apr. 26, 2024) (citations and
quotation omitted) (“The doctrine also bars federal courts
from considering claims that are ‘inextricably intertwined’
with a prior state court determination.”).
2. Younger Abstention Doctrine
“In the event that plaintiff's underlying state family court
proceeding 11 is currently pending, his request for this
Court's involvement would implicate the Younger abstention
doctrine.” Gerken, 2024 WL 4608307, at *4 (citing Younger
v. Harris, 401 U.S. 37 (1971)). Under the Younger
abstention doctrine, “federal courts [must] abstain from
taking jurisdiction over federal constitutional claims that
involve or call into question ongoing state proceedings.”
Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198
(2d Cir. 2002) (citing Younger, 401 U.S. at 43-44.). “This
doctrine of federal abstention rests foursquare on the notion
that, in the ordinary course, a state proceeding provides an
adequate forum for the vindication of federal constitutional
rights.” Id. (quoting Cullen v. Fliegner, 18 F.3d 96, 103
(2d Cir. 1994)). “[I]t is settled that for purposes of Younger
abstention that [sic] a proceeding is considered pending until
all appellate court remedies have been exhausted.” Reinhardt
v. Com. of Mass. Dep't of Soc. Servs., 715 F. Supp. 1253,
1255 (S.D.N.Y. 1989) (internal quotation marks and citation
omitted).
“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.” Diamond “D” Const. Corp, 282 F.3d at 198 (citing
Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)). The
“Younger abstention is triggered only by three categories
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of state court proceedings: (1) state criminal prosecutions;
(2) civil proceedings that are akin to criminal proceedings;
and (3) civil proceedings that ‘implicate a State's interest
in enforcing the orders and judgments of its courts.’ ”
Amato v. McGinty, No. 1:17-CV-593 (MAD/ATB), 2017
WL 9487185, at *10 (N.D.N.Y. June 6, 2017), report and
recommendation adopted, No. 1:17-CV-00593 (MAD/ATB),
2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017) (internal
quotations omitted) (quoting Sprint Communications, Inc. v.
Jacobs, 134 S.Ct. 584, 588).
Here, because plaintiff's complaint references ongoing child
custody and child support matters, see generally Dkt. No. 1,
“the Younger abstention conditions are clearly met.” Fishman
v. Off. of Ct. Admin. New York State Courts., No. 18-
CV-282 (KMK), 2020 WL 1082560, at *10 (S.D.N.Y. Mar.
5, 2020), aff'd, No. 20-1300, 2021 WL 4434698 (2d Cir.
Sept. 28, 2021). “First, state-court proceedings regarding the
appropriate child custody arrangement are ongoing in Family
Court and New York State appellate courts.” Id. Second, child
custody and child support disputes “are a matter rightfully
reserved for state courts.” Id. (citing Puletti v. Patel, No.
05-CV-2293 (SJ), 2006 WL 2010809, at *4 (E.D.N.Y. July
14, 2006) (“The United States Supreme Court ... has long
recognized that ‘the whole subject of the domestic relations
of ... parent and child[ ] belongs to the laws of the States and
not to the laws of the United States.”)); see also Reinhardt,
715 F. Supp. at 1256 (S.D.N.Y. 1989) (citing Moore v. Sims,
442 U.S. 415, 435 (1979) (“Questions of family relations ...
are traditionally an area of state concern.”)); Walker, 2022
WL 2341420, at *6 (“[I]t is well-settled that a custody
dispute raises important state interests.” (citations omitted));
Tomczyk v. New York Unified Ct. Sys., No. 19-CV-2753
(JS)(AYS), 2019 WL 2437849, at *3 (E.D.N.Y. June 10,
2019) (dismissing the plaintiff's complaint that “implicate[d]
the way that New York courts manage their own divorce
and custody proceedings–a subject in which ‘the states
have an especially strong interest.”) (citations and quotations
omitted). Third, “[a]fter the Family Court makes its final
disposition on custody and [child support] (or, if it has already
done so), Plaintiff may appeal that decision within the state
court system and raise all federal constitutional claims there.”
Fishman 2020 WL 1082560, at *11. Plaintiff has not alleged,
and the complaint does not indicate, that he has attempted to
appeal the Family Court's orders and judgments or received a
decision on such appeal(s). See generally Dkt. No. 1.
*6 Therefore, to the extent that plaintiff's child custody
and child support matters are still pending in New York
State court, the undersigned recommends that the Court
abstain from interfering. See Cogswell v. Rodriguez, 304 F.
Supp. 2d 350, 357 (E.D.N.Y. 2004) (applying the Younger
abstention doctrine to dismiss claims which arose from
“pending state court proceedings involving child support”)
(citation omitted); Bowman v. Morris, No. 8:19-CV-97 (BKS/
DJS), 2019 WL 5150196, at *6 (N.D.N.Y. Apr. 10, 2019),
report and recommendation adopted, 2019 WL 3759174
(N.D.N.Y. Aug. 9, 2019) (“Accordingly, to the extent that the
child support issues are continuing in Family Court, the Court
should abstain from interfering with that process.”); Walker,
2022 WL 2341420, at *6 (“[T]o the extent the custody dispute
is continuing in New York State Family Court, this Court
should abstain from interfering with that process.”).
Alternatively, because plaintiff's complaint raises an
allegation of fraud, see Dkt. No. 1-1 at 1, it is necessary
to address the exceptions to Younger and the situations in
which the Court should intervene. “Despite the strong policy
in favor of abstention, a federal court may nevertheless
intervene in a state proceeding upon a showing of bad faith,
harassment or any other unusual circumstance that would call
for equitable relief.” Diamond D. Const. Corp., 282 F.3d at
198 (quoting Younger, 401 U.S. at 54) (internal quotations
omitted). Plaintiff has the burden of establishing that one
of the Younger exceptions applies. See id. (“[A] plaintiff
who seeks to head off Younger abstention bears the burden
of establishing that one of the exceptions applies.”) (citing
Kirschner v. Klemons, 225 F.3d 227, 235-36 (2d Cir. 2000)).
“To meet the bad faith or harassment exception, the federal
plaintiff must show that the state proceeding was initiated
with and is animated by a retaliatory, harassing, or other
illegitimate motive.” Hunter v. McMahon, No. 20-CV-18
(LJV-MJR), 2024 WL 4362310, at *6 (W.D.N.Y. Sept. 30,
2024) (quoting Diamond D. Const. Corp., 282 F.3d at 199)
(emphasis omitted). In other words, the federal plaintiff “must
have no reasonable expectation of obtaining a favorable
outcome.” Diamond “D” Const. Corp., 282 F.3d at 199.
“A state proceeding that is legitimate in its purposes, but
unconstitutional in its execution—even when the violations
of constitutional rights are egregious—will not warrant the
application of the bad faith exception.” Id. (citing Schlagler
v. Phillips, 166 F.3d 439, 443-44 (2d Cir. 1999)).
To satisfy the extraordinary circumstance exception, the
plaintiff must demonstrate that the “the state court incapable
of fairly and fully adjudicating the federal issues before
it....” Diamond “D” Const. Corp., 282 F.3d at 201 (quoting
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Kugler v. Helfant, 421 U.S. 117, 124, (1975)). 12 “[T]he
Second Circuit has identified ‘two predicates for application
of this exception: (1) that there be no state remedy available
to meaningfully, timely, and adequately remedy the alleged
constitutional violation; and (2) that a finding be made that the
litigant will suffer ‘great and immediate’ harm if the federal
court does not intervene.’ ” Rhee-Karn v. Burnett, No. 13 CIV.
6132 (JPO), 2014 WL 4494126, at *6 (S.D.N.Y. Sept. 12,
2014) (quoting Diamond “D” Const. Corp., 282 F.3d at 201).
Plaintiff has failed to satisfy his burden of demonstrating
that any of the Younger exceptions apply. See Diamond D.
Const. Corp., 282 F.3d at 198. Concerning the bad faith
or harassment exception, plaintiff uses the term “fraud”
and claims that the proposed defendants are “frauding” and
“stealing” from him. Dkt. No. 1-1 at 1. Yet, he has not stated
how he was defrauded or any “illegitimate motive” behind
the proposed defendants’ actions. See Hunter, 2024 WL
4362310, at *6. Similarly, plaintiff has not alleged that he had
“no reasonable expectation of obtaining a favorable outcome”
at the outset of the underlying state court proceedings. See
Diamond “D” Const. Corp., 282 F.3d at 199. The root of
plaintiff's complaint is a simple disagreement with a state
court order that set forth his parenting time, child support
obligation, and entered a judgment for child support arrears.
*7 Further, plaintiff has failed to show that this matter
constitutes an extraordinary circumstance. See Diamond “D”
Const. Corp., 282 F.3d at 201. Plaintiff has not alleged,
and the complaint does not indicate, that he appealed the
underlying state court's custody and child support order(s) or
judgment(s) or filed an Article 78 13 proceeding challenging
the Child Support Unit's collection process. 14 “Absent a
showing that [the plaintiff has] actually sought and been
denied such relief, [plaintiff has] not plausibly alleged that
there exists no state remedy to meaningfully, timely, and
adequately remedy the alleged constitutional violations.”
Rhee-Karn, 2014 WL 4494126, at *6. Moreover, plaintiff has
not alleged that he will suffer from “ ‘great and immediate’
harm if the federal court does not intervene.” Id. Rather,
he requests his preferences: parenting time with the child, a
reduction of his child support obligation, and the return of
monies garnished from his paychecks. See generally Dkt. No.
1.
Plaintiff's allegations against defendants amount to
conclusory allegations and ones that can be resolved
in state court. See Evans v. Adams, No. 22-CV-3882
(KAM/JRC), 2024 WL 306240, at *4 (E.D.N.Y. Jan. 26,
2024) (“[C]onclusory statements accusing the state court of
violating the Constitution without more do not establish an
obstacle to ... full and fair determination” in state courts.);
Chapman v. Maycock, No. 21-CV-4940 (KAM/JRC), 2021
WL 6091749, at *4 (E.D.N.Y. Dec. 23, 2021) (holding that
“conclusory statements alleging family court's disregard of
the Constitution ... without more, are not sufficient to show
that [the plaintiff's] claims are not capable of being resolved
fairly in state court”).
Based on the foregoing, the undersigned concludes that
none of the Younger abstention exceptions apply. Therefore,
“it is recommended that plaintiff's complaint be dismissed
without prejudice 15 for lack of subject matter jurisdiction
under either Rooker-Feldman or Younger.” Gerken, 2024 WL
4608307, at *5. “However, due to these doctrines barring
such claims from proceeding, it is recommended that an
opportunity to amend not be afforded as no better pleading
can cure the lack of subject matter jurisdiction.” Id.
“[T]here is no requirement that a court address every single
potential ground for dismissal where it is clear that a claim
should be dismissed.” Gerken, 2024 WL 4608307, at *5
(quoting Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024
WL 2291701, at *13 (N.D.N.Y. May 21, 2024)) (citing, inter
alia, Curtis v. Greenberg, No. 22-252-CV, 2023 WL 6324324,
*2 n.3 (2d Cir. Sept. 29, 2023)). However, the undersigned
notes, for the sake of completeness, that there are several
additional, alternative grounds for dismissal.
3. Domestic Relations Abstention
*8 The Supreme Court
[l]ong ago observed that the 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.
So strong is our deference to state law
in this area that we have recognized
a domestic relations exception that
divests the federal courts of power
to issue divorce, alimony, and child
custody decrees.
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Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13
(2004) (internal quotation marks and citations omitted),
abrogated on other grounds by Lexmark Int'l Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014); see also Ex
parte Burrus, 136 U.S. 586, 593-94 (1890) (“[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.”); Mansell v. Mansell, 490 U.S.
581, 587, (1989) (“[D]omestic relations are preeminently
matters of state law.”); United States v. Windsor, 570 U.S. 744,
766 (2013) (“State laws defining and regulating marriage,
of course, must respect the constitutional rights of persons;
but, subject to those guarantees, regulation of domestic
relations is an area that has long been regarded as a virtually
exclusive province of the States.”) (internal quotation marks
and citations omitted); Bowman, 2019 WL 5150196, at *5,
report and recommendation adopted, 2019 WL 3759174
(N.D.N.Y. Aug. 9, 2019) (“Under the domestic relations
exception to the jurisdiction of federal courts, cases involving
divorce, alimony, and child [support] remain outside federal
court jurisdiction.”) (citing Marshall v. Marshall, 547 U.S.
293, 308 (2006)).
“Under the domestic relations abstention doctrine[,] ... a
federal court [may] decline to exercise jurisdiction where
claims are on the verge of being matrimonial in nature and
there is no obstacle to their full and fair determination in
state courts.” Gerken, 2024 WL 4608307, at *5 (quoting
Ortiz v. Tinnerello, No. 3:20-CV-1782 (KAD), 2021 WL
11593793, at *4 (D. Conn. Jan. 20, 2021)); see Bey v.
Furman, No. 21-CV-4090 (WFK/RER), 2021 WL 3725987,
at *4 (E.D.N.Y. Aug. 23, 2021) (indicating that the plaintiff
challenging his duty to pay child support was “matrimonial
in nature”). “Courts in this circuit routinely dismiss actions
for lack of subject matter jurisdiction, due to the domestic
relations abstention doctrine, where the plaintiff is seeking
review of child custody [and child support] proceedings.”
Gerken, 2024 WL 4608307, at *6 (citing Neustein v. Orbach,
732 F. Supp. 333, 339-40 (E.D.N.Y. 1990) (holding that the
Court lacked jurisdiction because it could not resolve factual
disputes connected to domestic relations)); Dudley v. Hochul,
No. 5:24-CV-0048 (DNH/ML), 2024 WL 1906594, at *5
(N.D.N.Y. May 1, 2024) (same), report and recommendation
adopted sub nom. Dudley v. Hocul, 2024 WL 2399913
(N.D.N.Y. May 23, 2024); Pynn v. Pynn, No. 24-CV-508
(LJV), 2024 WL 3647783, at *8 (W.D.N.Y. Aug. 5, 2024)
(collecting cases and noting that “[c]ourts in this circuit
have found abstention appropriate when the plaintiff asked
a federal court to review and overturn state court rulings
related to child custody and divorce.”); Rotondo v. New York,
No. 5:17-CV-1065 (GLS/DEP), 2017 WL 5201738, at *4
(N.D.N.Y. Oct. 31, 2017) (“[It is manifestly clear that [the]
plaintiff's claims implicate the domestic-relations exception
to federal court jurisdiction. [The p]laintiff challenges a state-
court's determination denying him relief from a family court's
child support order, and [the] plaintiff's requests for relief
include removal of the family court proceeding to federal
court.”), report and recommendation adopted, 2017 WL
5198194 (N.D.N.Y. Nov. 9, 2017); Davis v. Kushner, No.
1:14-CV-00511 (MAD), 2014 WL 5308142, at *4 (N.D.N.Y.
Oct. 16, 2014) (recommending dismissal of the plaintiff's
claim as barred by the domestic relations exception where the
plaintiff sought “monetary damages for an unfavorable family
court ruling ...”).
*9 As discussed above, plaintiff challenges a child custody
and child support order(s), as well as a judgment for child
support arrears. See generally Dkt. No. 1, Dkt. No. 1-1, Dkt.
No. 1-2. On its face, plaintiff's complaint seeks monetary
damages for what he perceives to be unfavorable state court
rulings. See Davis, 2014 WL 5308142, at *4. However, “[t]he
doctrine of domestic relations abstention means that this
Court does not have jurisdiction over the plaintiff's claims.”
Sekou Camera v. N.Y.C. Dep't of Soc. Servs., No. 24-CV-5886
(AMD/TAM), 2024 WL 4107256, at *2 (E.D.N.Y. Sept. 5,
2024). Thus, the undersigned alternatively recommends that
plaintiff's complaint be dismissed without prejudice for lack
of subject matter jurisdiction under the domestic relations
abstention doctrine. See Remy v. New York State Dep't of Tax.
& Fin., 507 F. App'x 16, 18-19 (2d Cir. 2013) (summary
order) (dismissing complaint that sought “direct review” of
child support order in state family court); see also Hernandez
v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)
(“[W]here a court lacks subject matter jurisdiction, it also
lacks the power to dismiss with prejudice.”).
4. Sovereign Immunity
The Eleventh Amendment to the United States Constitution
states that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. CONST. amend. XI. Applying this
principle, “[a]s a general rule, state governments and their
agencies may not be sued in federal court unless they have
waived their Eleventh Amendment immunity or there has
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been a valid abrogation of that immunity by Congress.”
Gerken, 2024 WL 4608307, at *6 (quoting Kisembo v.
N.Y.S. Off. of Child. & Fam. Servs., 285 F. Supp. 3d 509,
519 (N.D.N.Y. 2018)); see Garcia v. Paylock, No. 13-
CV-2868 (KAM), 2014 WL 298593, at *3 (E.D.N.Y. Jan. 28,
2014) (“Plaintiff's equal protection claims also may not be
brought directly under the Fourteenth Amendment because
the State has not waived its immunity or had that immunity
abrogated pursuant to that constitutional amendment.”). “This
jurisdictional bar applies regardless of the nature of the relief
sought.” Gerken, 2024 WL 4608307, at *6 (quoting Murawski
v. N.Y. State Bd. of Elections, 285 F. Supp. 3d 691, 695
(S.D.N.Y. 2018)) (quoting Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984)).
“[T]he immunity recognized by the Eleventh Amendment
extends beyond the states themselves to state agents and
state instrumentalities that are, effectively, arms of a state.”
Gerken, 2024 WL 4608307, at *7 (quoting Gollomp v. Spitzer,
568 F.3d 355, 366 (2d Cir. 2009) (internal quotation marks
and citation omitted)) (quoting Woods v. Rondout Valley Cent.
Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006));
see Marino v. City Univ. of New York, 18 F. Supp. 3d 320,
329 (E.D.N.Y. 2014) (explaining that sovereign immunity
bars “direct constitutional claim[s] brought directly against
a state entity”) (citing Santiago v. N.Y. State Dep't of Corr.
Servs., 945 F.2d 25, 30-32 (2d Cir. 1991)); see also Rubin v.
N.Y. State Dep't of Motor Vehicles, No. 10-CV-4119 (NGG),
2010 WL 3842011, at *1 (E.D.N.Y. Sept. 28, 2010) (“The
Eleventh Amendment bars suits against states, their agencies
whether the [p]laintiff seeks relief at law or in equity, absent
the state's consent to suit or an express or statutory waiver
of immunity.”) (citing Pennhurst State School & Hosp., 465
U.S. at 99-102).
a. Government Entities
The Schenectady County Child Support Collection Unit
appears to be a branch of New York State Child Support
Services operating under the New York State Department
of Social Services. Similarly, the Division of Child Support
Enforcement Newport News District Office appears to be
a subdivision of the Virginia State Department of Social
Services. 16 The Schenectady County Family Court is a
court that is part of the New York State Unified Court
System. 17 These entities are “arm[s] of the state for purposes
of sovereign immunity.” Gerken, 2024 WL 4608307, at *7
(citing Calderon v. N.Y.C. Dep't of Homeless Servs., No. 24-
CV-4631 (VEC), 2024 WL 3429884, at *2 (S.D.N.Y. July 16,
2024)) (“[A]s an agency of the State of New York, the New
York State Department of Social Services is an arm of the
State and is protected by Eleventh Amendment immunity.”);
see also Dixon v. Jordan, No. 23-CV-9227 (LTS), 2024 WL
37096, at *2 (S.D.N.Y. Jan. 2, 2024) (“Plaintiff's Section
1983 claims against the New York State Child Support
Services are therefore barred by the Eleventh Amendment
and are dismissed because they seek monetary relief against
a defendant who is immune from such relief.”) (citations
omitted); Dickson v. Schenectady Fam. Ct., No. 1:22-CV-499
(DNH/CFH), 2022 WL 16966549, at *3 (N.D.N.Y. Oct.
27, 2022), report and recommendation adopted, No. 1:22-
CV-499, 2022 WL 16961389 (N.D.N.Y. Nov. 16, 2022)
(quoting Vazquez v. New York, No. 1:22-CV-196 (GTS/CFH),
2022 WL 2390248, at *5 (N.D.N.Y. June 30, 2022)), report
and recommendation adopted sub nom. Vazquez Carbuccia v.
New York, 2022 WL 3100553 (N.D.N.Y. Aug. 4, 2022) (“This
Court has explained that the Schenectady County Family
Court is a part of the New York State Unified Court System
and is entitled to sovereign immunity.”) (internal quotations
omitted); Warden v. Virginia Dep't of Soc. Servs. (Pulaski
Cnty.), No. 7:23-CV-00775, 2023 WL 8481014, at *2 (W.D.
Va. Dec. 7, 2023) (“The court further notes that numerous
courts, including this one, have held that a county branch
of the Department of Social Services is considered a state
entity in Virginia and is entitled to Eleventh Amendment
immunity, which precludes any suit for money damages in
federal court.”) (citations omitted).
*10 Neither New York, nor Virginia, have “expressly
waived its sovereign immunity with respect to the claims
asserted in plaintiff's complaint.” Gerken, 2024 WL 4608307,
at *7 (citing Edelman v. Jordan, 415 U.S. 651, 673 (1974)
(“[W]e will find waiver only where stated by the most
express language or by such overwhelming implications
from the text as (will) leave no room for any other
reasonable construction.”) (internal quotations omitted))
(quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171
(1909)); see also Mamot v. Bd. of Regents, 367 F. App'x 191,
192 (2d Cir. 2010) (summary order) (“It is well-established
that New York has not consented to § 1983 lawsuits in
federal court[.]”). “Moreover, Congress has not abrogated
New York's sovereign immunity in enacting § 1983”. Gerken,
2024 WL 4608307, at *7 (citing Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 39-40 (2d Cir. 1977));
see also Mayo v. Doe, 480 F. Supp. 3d 395, 402 (D. Conn.
2020) (holding that “[s]ection 1983 does not abrogate state
sovereign immunity”) (citing Quern v. Jordan, 440 U.S. 332,
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342 (1979)). Accordingly, plaintiff's § 1983 claims against the
Schenectady County Child Support Collection Unit, Division
of Child Support Enforcement Newport News District Office,
and Schenectady County Family Court are barred under the
Eleventh Amendment. See Corrado v. State of N.Y. Univ.
Stony Brook Police, Nos. 15-CV-7443, 15-CV-7444, 2016
WL 4179946, at *6 (E.D.N.Y. Aug. 5, 2016) (“Plaintiff's
claims ... fail because this defendant is an administrative arm
of Suffolk County, a municipality, and has no independent
legal identity .... [A]gencies of a municipality are not suable
entities because [u]nder New York law, departments that are
merely administrative arms of a municipality have no separate
legal identity apart from the municipality and therefore cannot
be sued.”) (internal quotations omitted) (quoting Omnipoint
Comm'ns, Inc. v. Town of Lagrange, 658 F. Supp. 2d 539, 552
(S.D.N.Y. 2009))
“The undersigned notes that a dismissal based on the doctrine
of sovereign immunity, is consequently a dismissal for lack
of subject matter jurisdiction.” Gerken, 2024 WL 4608307,
at *7 (quoting Griffith v. New York State, No. 5:23-CV-1266
(DNH/ML), 2024 WL 1641587, at *5 n.4 (N.D.N.Y. Mar.
20, 2024) (citations omitted)). Therefore, it is alternatively
recommended that plaintiff's claims against the Schenectady
County Child Support Collection Unit and Division of
Child Support Enforcement Newport News District Office
be dismissed without prejudice for lack of subject matter
jurisdiction. See id. (citing Abadi v. City of New York, 22-
CV-1560, 2023 WL 3295949, at *3 n.3 (2d Cir. May 8, 2023)
(summary order) (“Because the Court lacks subject matter
jurisdiction ... the amended complaint should be dismissed
without prejudice.”); Katz v. Donna Karan Co., L.L.C.,
872 F.3d 114, 116 (2d Cir. 2017) (“[A] complaint must be
dismissed without prejudice where the dismissal is due to the
court's lack of subject matter jurisdiction[.]”))
b. Dylan Reilly, Deputy County Attorney
i. Official Capacity Claim
Plaintiff named “Attorney-Reilly Dylian [sic]” on his list of
people he wanted to sue. Dkt. No. 1-1 at 9. He also attached to
his complaint a copy of a proposed Order of Support signed by
Dylan Reilly, Deputy County Attorney, Schenectady County
Attorney's Office, Department of Social Services (“Reilly”).
See Dkt. No. 3 at 4. Although plaintiff seeks to name Reilly
as a defendant in this action, his complaint does not directly
or implicitly raise any claims against Reilly. See generally
Dkt. No. 1. Further, the complaint is devoid of any factual
allegations concerning Reilly. See id. The only mentions
of Reilly in the complaint are the presence of their name
and the copy of the proposed order where their name is
highlighted and starred. The undersigned concludes that, as
to Reilly, plaintiff's complaint “in its current form fails to
state a claim for relief and fails to state the Court's subject
matter jurisdiction. As such, dismissal would be appropriate
pursuant to 28 U.S.C. §§ 1915(e) and 1915A.” Ajamian v.
Nimeh, No. 1:14-CV-0320 (GTS/CFH), 2014 WL 6078425,
at *7 (N.D.N.Y. Nov. 13, 2014)
Even, assuming arguendo, that plaintiff's complaint had
raised a claim against Reilly in their official capacity as a
deputy county attorney, such claims must still be dismissed
under the doctrine of sovereign immunity. “Sovereign
immunity bars not only suits against states themselves, but
also suits for damages against state officials acting in their
official capacities.” Chapman v. City of Albany, No. 1:23-
CV-686 (LEK/PJE), 2025 WL 295011, at *5 (N.D.N.Y. Jan.
24, 2025) (citing Kentucky v. Graham, 473 U.S. 159, 169
(1985)); see also Gollomp, 568 F.3d at 365. By signing the
proposed child support order as “Deputy County Attorney,
Schenectady County Attorney's Office, Department of Social
Services,” Dkt. No. 1-3 at 4, Reilly was clearly acting in
their official capacity as a state official, and, therefore, is
entitled to sovereign immunity. “Thus, plaintiff's claims for
damages against the state employees sued in their official
capacities are barred by the Eleventh Amendment.” Young
v. Lugo, No. 18-CV-4216(JFB)(AKT), 2019 WL 1492679,
at *3 (E.D.N.Y. Apr. 4, 2019) (citing Darcy v. Lippman,
356 F. App'x 434, 436-37 (2d Cir. 2009)) (“The Eleventh
Amendment likewise bars [plaintiff] from pursuing a claim
for damages against the individual defendants in their official
capacities”). Accordingly, the undersigned recommends that
plaintiff's claims against Reilly in their official capacity as
“Deputy County Attorney” be dismissed without prejudice
for lack of subject matter jurisdiction. See Gerken, 2024 WL
4608307, at *7.
ii. Individual Capacity Claim
*11 “Absolute immunity protects government officials from
suit arising out of acts associated with their ‘function as an
advocate.’ ” Dees v. Zurlo, No. 1:24-CV-1 (MAD/DJS), 2024
WL 2291701, at *10 (N.D.N.Y. May 21, 2024), aff'd sub
nom. Dees v. Knox, No. 24-1574-CV, 2025 WL 485019 (2d
Cir. Feb. 13, 2025) (quoting Jeanty v. Sciortino, 669 F. Supp.
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3d 96, 108 (N.D.N.Y. 2023)) (quoting Buari v. City of New
York, 530 F. Supp. 3d 356, 378 (S.D.N.Y. 2021)). “Absolute
immunity extends to ‘government attorneys defending civil
suits’ and ‘government attorneys who initiate civil suits.’ ”
Id. (quoting Jeanty, 669 F. Supp. 3d at 108) (quoting Spear
v. Town of West Hartford, 954 F.2d 63, 66 (2d Cir. 1992)).
“In determining whether an official is entitled to absolute
immunity, courts employ a functional’ approach, looking at
the nature of the function performed, not the identity of the
actor who performed it.” Id. (quoting Jeanty, 669 F. Supp. 3d
at 108) (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 394
(2d Cir. 2006)) (internal quotations omitted). “The principle
applies to functions of a government attorney that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation in civil suits – including
the defense of such actions.” Id. (quoting Jeanty, 669 F.
Supp. 3d at 108) (internal quotations omitted). “[O]nce a
court determines that challenged conduct involves a function
covered by absolute immunity, the actor is shielded from
liability for damages regardless of the wrongfulness of his
motive or the degree of injury caused.” Id. (quoting Jeanty,
669 F. Supp. 3d at 108) (quoting Bernard v. County of Suffolk,
356 F.3d 495, 503 (2d Cir. 2004) (citation omitted)).
It appears that plaintiff's allegations against Reilly stem
entirely from Reilly's functions as a Deputy County Attorney
for the Schenectady County Attorney's Office. Dees, 2024
WL 2291701, at *10. Reilly is a government attorney who
signed a proposed order affecting plaintiff's state court
litigation. See Dkt. No. 1-3 at 4. Therefore, the undersigned
concludes Reilly's act of filing the proposed order was
associated with their “function as an advocate” and “closely
associated with the conduct of litigation.” Dees, 2024 WL
2291701, at *10. Therefore, the undersigned recommends that
plaintiff's claims against Reilly in their individual capacity
be dismissed without prejudice for lack of subject matter
jurisdiction. See id.
5. Judicial Immunity
Liberally reading plaintiff's complaint and affording plaintiff
due solicitude, he names Bruce J. Wagner, Support Magistrate
(“Wagner”), as a defendant in this action. See Dkt. No. 1-1 at
9; Dkt. No. 1-3. “With minor exceptions, judges are entitled
to absolute immunity for actions relating to the exercise of
their judicial functions.” Gerken, 2024 WL 4608307, at *8
(quoting Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017))
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam)).
“Judicial immunity has been created for the public interest in
having judges who are ‘at liberty to exercise their functions
with independence and without fear of consequences.’ ” Id.
(quoting Zavalidroga, 2017 WL 8777370, at *8) (quoting
Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2004)).
“Judicial immunity applies even when the judge is accused
of acting maliciously or corruptly.” Id. (citation omitted); see
Positano v. New York, No. 12-CV-2288 (ADS/AKT), 2013
WL 880329, at *4 (E.D.N.Y. Mar. 7, 2013) (explaining that
the plaintiff may not bring action against a judge for actions
taken in his judicial capacity, even when the actions violated
the ADA). “Family Court Support Magistrates, as New York
State judicial officers, enjoy [ ] judicial immunity, when
presiding over child support proceedings.” Id. (quoting Cora
v. Wright, No. 1:24-CV-0263 (LTS), 2024 WL 450247, at *2
(S.D.N.Y. Feb. 5, 2024)); see Dieujuste v. Sin, 731 F. Supp.
3d 440, 448 (E.D.N.Y.), reconsideration denied, 734 F. Supp.
3d 232 (E.D.N.Y. 2024), and aff'd, 125 F.4th 397 (2d Cir.
2025) (“As a Support Magistrate presiding over child support
proceedings, Judge Sin is unquestionably entitled to judicial
immunity.”)
*12 “Judicial immunity is immunity from suit, not just
immunity from the assessment of damages.” Gerken, 2024
WL 4608307, at *8 (quoting Zavalidroga, 2017 WL 8777370,
at *8) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
“The only two circumstances in which judicial immunity
does not apply is when he or she takes action ‘outside’ his
or her judicial capacity and when the judge takes action
that, although judicial in nature, is taken ‘in absence of
jurisdiction.’ ” Id. (citing Mireles, 502 U.S. at 11-12). “In
determining whether or not a judge acted in the clear absence
of all jurisdiction, the judge's jurisdiction is ‘to be construed
broadly, and the asserted immunity will only be overcome
when the judge clearly lacks jurisdiction over the subject
matter.’ ” Id. (quoting Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014)) (quoting Ceparano v. Southampton
Just. Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary
order)). “Whether a judge acted in a judicial capacity depends
on the nature of the act [complained of] itself, i.e., whether
it is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Id. (quoting Ceparano, 404 F.
App'x at 539 (internal quotation marks and citation omitted)).
“Further, if the judge is performing in his judicial capacity,”
he “ ‘will not be deprived of immunity because the action
he took was in error, was done maliciously, or was in excess
of his authority; rather, he will be subject to liability only
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when he has acted in the clear absence of all jurisdiction.’ ”
Id. (quoting Ceparano, 404 F. App'x at 539) (quoting Stump
v. Sparkman, 435 U.S. 349, 362 (1978)). “Judges are not,
however, absolutely ‘immune from liability for nonjudicial
actions, i.e., actions not taken in the judge's judicial capacity.’
” Id. (quoting Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009)
(quoting Mireles, 502 U.S. at 11)).
Plaintiff claims that Wagner is “performing duties he's
not lawfully to do,”, and doing “an accountants job and
determining what get [sic] deducted from [him].” Dkt. No.
1-1 at 3. Plaintiff further opines, “how is the magistrate
practicing law and accountant [sic] when given rights to only
practice law its [sic] fraud.” Id. at 4. He contends that his
“constitutional rights was [sic] violated cause they say I owe
over $20 dollars to where [sic] the magistrate called for a trial
and never had the jury I asked for.” Id. at 6. Plaintiff further
claims, “to my knowledge he do [sic] not have the authority
or jurisdiction cause [sic] he is not a judicial officer and also
he cannot sign into order for any type of money judgment or
court hearing ....” Dkt. No. 1-2 at 1.
Liberally construing plaintiff's complaint, he appears to argue
that Wagner “acted ... outside the bounds of [his] authority
during plaintiff's child support proceedings.” Gerken, 2024
WL 4608307, at *9 (quoting Dougal v. Lewicki, No. 1:23-
CV-1167 (DNH/CFH), 2023 WL 6430586, at *5 (N.D.N.Y.
Oct. 3, 2023), report and recommendation adopted, 2023
WL 7013384 (N.D.N.Y. Oct. 25, 2023) (internal quotations
omitted)). However, “[t]he scope of the judge's jurisdiction
must be construed broadly, such that a court acts in the
absence of all jurisdiction only when it does not have any
statutory or constitutional power to adjudicate the case.”
Id. (quoting Dickerson v. Siegal, No. 23-CV-3859 (EK/
LB), 2023 WL 6158833, at *3 (E.D.N.Y. Sept. 21, 2023)
(citations and internal quotation marks omitted)). Plaintiff's
contention that Wagner, as a support magistrate, did not
have the jurisdiction to calculate his support payment or
arrears is without merit. See Y.D. v. L.O., 77 Misc. 3d 964,
967, 182 N.Y.S.3d 534, 537 (N.Y. Fam. Ct. 2022) (“Family
Court Act § 439(a) empowers Support Magistrates to hear,
determine and grant any relief within the powers of the Court,
in proceedings properly before them.”) (internal quotations
omitted). 18 Further, even accepting plaintiff's allegations as
true, he has failed to demonstrate that Wagner acted in the
“complete absence of all jurisdiction.” Gerken, 2024 WL
4608307, at *9 (quoting Ceparano, 404 F. App'x at 539); see
Olszyk v. Thorne, No. 3:20-CV-0445 (TJM/ML), 2020 WL
5634328, at *5 (N.D.N.Y. June 17, 2020) (“The Complaint is
devoid of facts plausibly suggesting that Defendant [Judge]
Barrasse acted in the clear absence of all jurisdiction. As
a result, I recommend that the claims against Defendant
Barrasse be dismissed in their entirety based on the doctrine
of absolute judicial immunity.”), report and recommendation
adopted, 2020 WL 5633791 (N.D.N.Y. Sept. 21, 2020).
*13 Accordingly, Wagner “is immune from suit pursuant
to the doctrine of judicial immunity” as to plaintiff's claims
concerning “conduct taken in his capacity as a child support
magistrate.” Gerken, 2024 WL 4608307, at *9 (citing
Shtrauch v. Dowd, 651 F. App'x 72, 73-74 (2d Cir. 2016)
(summary order) (“Generally, ‘acts arising out of, or related
to, individual cases before the judge are considered judicial
in nature’ ”) (quoting Bliven, 579 F.3d at 210)); see also
Cora v. Wright, No. 1:24-CV-0263 (LTS), 2024 WL 450247,
at *3 (S.D.N.Y. Feb. 5, 2024) (“Because [the p]laintiff sues
Support Magistrate Wright for acts arising out of, or related
to, individual cases before [her], the doctrine of judicial
immunity applies to [the p]laintiff's claims under Section
1983 against her.”) (internal quotation marks and citations
omitted).
Insofar as plaintiff brings an action against Wagner “in
his official capacity, the suit is barred by the Eleventh
Amendment.” Id. (citing Pacherille, 30 F. Supp. 3d at 163 n.5)
(“The Eleventh Amendment shields judges from suit to the
extent that they are sued in their official capacities.”); see also
Trello v. McKeighan, 624 F. Supp. 3d 150, 155-56 (N.D.N.Y.
2022). “The doctrine of judicial immunity shields judges from
suit to the extent they are sued in their individual capacities.”
Id. (quoting Kellogg v. Nichols, 703 F. Supp. 3d 367, 372
(N.D.N.Y. 2023)) (citing Trello v. McKeighan, 624 F. Supp.
3d 150, 155 (N.D.N.Y. 2022)).
Therefore, it is recommended that the claims against Wagner
“in both his individual and official capacities are barred
by judicial and sovereign immunity.” Gerken, 2024 WL
4608307, at *10. “The undersigned further recommends
dismissing the claims against [Wagner] without prejudice for
lack of subject matter jurisdiction and without opportunity to
amend.” Id. (citing Miller v. Cnty. of Nassau, 467 F. Supp. 2d
308, 312 (E.D.N.Y. 2006) (explaining that a dismissal “based
on a finding of judicial immunity” is for lack of subject matter
jurisdiction)); see also Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 72-73 (1996) (holding that claims barred by
the Eleventh Amendment are properly dismissed for lack of
subject matter jurisdiction).
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6. 42 U.S.C. § 1983
a. State Action
Plaintiff's complaint lists “Child Attorney – Rebecca
Bauscher” (“Bauscher”) as someone he wanted to sue for
violating his constitutional rights. Dkt. No. 1-1 at 9. However,
“[t]o state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color
of state law.” Gerken, 2024 WL 4608307, at *11 (quoting
West v. Atkins, 487 U.S. 42, 48 (1988)). “The traditional
definition of acting under color of state law requires that
the defendant ... exercise[ ] power possessed by virtue of
state law and made possible only because the wrongdoer
is clothed with the authority of state law.” Id. (quoting
West, 487 U.S. at 49) (internal quotation marks and citation
omitted). “Because the United States Constitution regulates
only the Government, not private parties, [with respect to
a claim brought under § 1983,] a litigant claiming that his
constitutional rights have been violated must first establish
that the challenged conduct constitutes state action.” Id.
(quoting Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178,
186 (2d Cir. 2005) (internal quotations omitted)) (quoting
United States v. Int'l Brotherhood of Teamsters, 941 F.2d
1292, 1295 (2d Cir. 1991)); see Baum v. N. Dutchess Hosp.,
764 F. Supp. 2d 410, 419 (N.D.N.Y. 2011) (“State action is
an essential element of any § 1983 claim.”) (citing Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 934 (1982)
(explaining that the “under color of any statute” language is to
enforce the provisions of the Fourteenth Amendment and that
if a defendant's conduct satisfies the state-action requirement
then that conduct is also action under color of state law under
§ 1983), and Rounseville v. Zahl, 13 F.3d 625, 627-28 (2d Cir.
1994) (noting the state action requirement for § 1983)).
*14 “Private parties generally are not state actors and
therefore are not usually liable under [§] 1983.” Gerken, 2024
WL 4608307, at *11 (quoting Yi Sun v. Saslovsky, No. 1:19-
CV-10858 (LTS), 2020 WL 6828666, at *7 (S.D.N.Y. Aug.
6, 2020)) (citing Sykes v. Bank of America, 723 F.3d 399, 406
(2d Cir. 2013)); see Basile v. Connolly, 538 F. App'x 5, 7 (2d
Cir. 2013) (summary order) (“[P]rivate individuals ... cannot
be sued under 42 U.S.C. § 1983 absent a plausible allegation
that they acted under color of state law.”). “A private party's
actions can be considered state action in three situations”:
(1) the private party acts using
the coercive power of the state
or is controlled by the state (the
“compulsion test”); (2) the private
party willfully participates in joint
activity with the state or its functions
are entwined with state policies (the
“joint action” or “close nexus” test);
or (3) the state has delegated a public
function to the private party (the
“public function” test).
Id. (quoting Rogers v. City of New Rochelle, No. 1:19-
CV-0479 (CM), 2019 WL 5538031, at *2 (S.D.N.Y. Oct. 25,
2019)) (citing Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.
2012)). “The fundamental question under each test is whether
the private party's challenged actions are ‘fairly attributable’
to the State.” Id. (quoting Rogers, 2019 WL 5538031, at
*2) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838
(1982)). “[A] State normally can be held responsible for a
private decision ... when it has ... provided such significant
encouragement, either overt or covert, that the choice must in
law be deemed to be that of the State.” Id. (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982) (citations omitted)). The
State's “[m]ere approval of or acquiescence in the initiatives
of a private party[, however,] is not sufficient to justify
holding the State responsible for those initiatives ....” Id.
(quoting Blum, 457 U.S. at 1004-05).
Here, it appears that Bauscher is the attorney for plaintiff's
child. Plaintiff's complaint does not directly or implicitly
raise any claims against Bauscher. See generally Dkt. No. 1.
Further, the complaint is devoid of any factual allegations
concerning Bauscher. See id. The only mentions of Bauscher
in the complaint are that she is named on the list of people
plaintiff wanted to sue, and that plaintiff allegedly told
Bauscher that he is “in his [son's] life and [he] takes good care
of him and [they] talk every day and that [he] give [sic] him
money.” Dkt. No. 1-1 at 1, 9. The undersigned concludes that,
as to Bauscher, plaintiff's complaint “in its current form fails
to state a claim for relief and fails to state the Court's subject
matter jurisdiction. As such, dismissal would be appropriate
pursuant to 28 U.S.C. §§ 1915(e) and 1915A.” Ajamia, 2014
WL 6078425, at *7.
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“The Second Circuit has held that attorneys for the child
are not state actors for purposes of suits filed pursuant to §
1983.” Gerken, 2024 WL 4608307, at *12 (quoting Milan
v. Wetheimer, 808 F.3d 961, 964 (2d Cir. 2015) (internal
quotations omitted)); see also Parent v. New York, 786 F.
Supp. 2d 516, 538 (N.D.N.Y. 2011), aff'd, 485 F. Appx.
500 (2d Cir. 2012) (“[A]lthough appointed by the state, an
attorney for the children or law guardian is not a state actor
because he or she must exercise independent professional
judgment on behalf of the clients they represent”). Thus, it
is recommended that plaintiff not be afforded an opportunity
to amend as against Bauscher as any such amendment would
be futile. See Hartley v. United Student Rentals, No. 1:24-
CV-925 (AMN/CFH), 2025 WL 26769, at *5 (N.D.N.Y.
Jan. 3, 2025), report and recommendation adopted, No.
1:24-CV-925 (ECC/PJE), 2025 WL 438195 (N.D.N.Y. Feb.
7, 2025). Accordingly, the undersigned recommends that
plaintiff's Section 1983 claim against Bauscher be dismissed.
“Importantly, as the undersigned concluded above, plaintiff's
complained of conduct surrounding and relating to the
implementation of the child support order ... cannot serve as
a basis for a section 1983 claim for the many reasons stated
supra, it is recommended that plaintiff not be provided an
opportunity to amend.” Gerken, 2024 WL 4608307, at *12. 19
7. Federal Consumer Credit Protection Act
*15 The Federal Consumer Credit Protection Act
(“FCCPA”) sets forth the “maximum part of the aggregate
disposable earnings of an individual for any workweek which
is subjected to garnishment,” 15 U.S.C. § 1673 (a), and
prescribes that “[n]o court of the United States or any State,
and no State (or officer or agency thereof), may make,
execute, or enforce any order or process in violation of this
section.” 15 U.S.C. § 1673 (c). The provisions of this statute
are enforced through the “Secretary of Labor, acting through
the Wage and Hour Division of the Department of Labor.” 15
U.S.C. § 1676.
Plaintiff alleges that the child support order entered against
him is a “excessive wage garnishment” in violation of the
FCCPA. Dkt. No. 1-1 at 2-3. However, plaintiff “cannot
pursue his claims under the [FCCPA] because there is no
private right of action under these statutes.” Corrado v. New
York Off. of Temp., No. 15-CV-7316 (SJF)(AYS), 2016 WL
3181128, at *6 (E.D.N.Y. June 2, 2016) (citing Jordan v.
Chase Manhattan Bank, 91 F. Supp. 3d 491, 501 (S.D.N.Y.
Mar. 6, 2015)) (holding that no private right of action under 15
U.S.C. § 1673, noting that the section is enforced exclusively
by the Secretary of Labor) (citing Long Island Trust Co.
v. U.S. Postal Serv., 647 F.2d 336, 341 (2d Cir. 1981));
see also Bush v. Frazier, No. 2:18-CV-00732 (SGC), 2019
WL 3305145, at *9 (N.D. Ala. July 23, 2019) (“Courts
have held no express or implied private right of action
exists under the garnishment provisions of the Consumer
Credit Protection Act, which are enforced by the Secretary
of Labor.”) (citations omitted); Colbert v. Roling, 233 F.
App'x 587, 590 (8th Cir. 2007) (“[I]t follows that there
is no private right of action under § 1673 as well. The
district court properly dismissed Colbert's action for the
alleged violation of § 1673.”). Therefore, the undersigned
alternatively recommends dismissal of this claim to due the
lack of a private right of action under the FCCPA, and in
turn, dismissal for lack of subject matter jurisdiction without
opportunity to amend.
III. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed
without the Court granting leave to amend at least once when
a liberal reading of the complaint gives any indication that
a valid claim might be stated.” Gerken, 2024 WL 4608307,
at *15 (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014) (citation omitted)). “However, if the problems with
a complaint are ‘substantive’ rather than the result of an
‘inadequately or inartfully pleaded’ complaint, an opportunity
to re-plead would be ‘futile’ and ‘should be denied.’ ” Id.
(citing Edwards v. Penix, 388 F. Supp. 3d 135, 144-45
(N.D.N.Y. 2019)) (quoting Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000)).
Here, the Rooker-Feldman doctrine, Younger abstention
doctrine, Domestic Relations abstention doctrine, and Section
1673 issues cannot be cured by a better pleading. The
claims against the Schenectady County Child Support
Collection Unit, the Division of Child Support Enforcement
Newport News District Office, and the Schenectady County
Family Court are barred by sovereign immunity. The claim
against Reilly is barred by sovereign immunity and absolute
immunity. Additionally, the claim against Wagner is barred
by judicial immunity, and the claim against Bauscher must
be dismissed because she is not a state actor for the purposes
of Section 1983. Accordingly, it is recommended that the
complaint be dismissed in its entirety without prejudice and
without opportunity to amend.
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IV. Conclusion
*16 WHEREFORE, for the reasons set forth herein, it is
hereby
ORDERED, that plaintiff's application for leave to proceed
in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
ORDERED, that the Clerk amend the caption to: (1)
correct the spelling of the names of defendants Schenectady
County Child Support Unit and Division of Child Support
Enforcement Newport News District Office; and (2) add as
defendants the Schenectady County Family Court; Bruce J.
Wagner, Support Magistrate; Dylan Reilly, Deputy County
Attorney; and Rebecca Bauscher, child attorney; and it is
RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be
DISMISSED in its entirety without prejudice and without
opportunity to amend for lack of subject matter jurisdiction,
and it is
ORDERED, that the Clerk serve a copy of this Report-
Recommendation and Order in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C.
§ 636(b)(1); FED. R. CIV. P. 6(a), 72. 20
All Citations
Slip Copy, 2025 WL 895035
Footnotes
1 This matter was referred to the undersigned for Report-Recommendation pursuant to 28 U.S.C. § 636(b)
and N.D.N.Y. L.R. 72.3(c).
2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and costs
he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees.
3 These requirements apply equally to non-prisoner pro se litigants. See N.D.N.Y. L.R. 72.3(d) (“Unless the
Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred to a
Magistrate Judge for the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an
application to proceed in forma pauperis is filed.”).
4 Hereinafter, “Fed. R. Civ. P.”
5 All unpublished decisions cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff. The Court does not, however, provide a copy of plaintiff's 2022 decision before this
Court as he would have been provided copies as part of that litigation. See 9 n.10, infra.
6 Plaintiff submitted various documents as exhibits or attachments to his complaint. See Dkt. Nos. 1-1, 1-2,
1-3, 1-4, 1-5, 1-6, 1-7, 1-8, 1-9, 1-10, 1-11, 1-12, 1-13, 1-14. These exhibits have also been reviewed in
connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
(“A complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated
in it by reference, and documents that, although not incorporated by reference, are integral to the complaint.”)
(internal quotation marks and citations omitted).
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7 Plaintiff also cites, without explanation or support, to other laws and statutes within his complaint, including
Fed. R. Civ. Pro. 4, 60(b)(4), 73, and 5(b)(2)(c); 22 NYCRR § 205.32; 42 U.S.C. §§ 1301(A) 37, (A)(1) and
659(a); 18 U.S.C. §§ 1589, 1001; 26 U.S.C. § 7434; U.S. Const. art. VI, cl. 2; however, it is unclear plaintiff's
reasoning for citing them or how such laws support a claim for relief. See Dkt. No. 1-1 at 3, 5, 7-9; Dkt. No.
1-2 at 1; Dkt. No. 3 at 1, 5; Dkt. No. 4 at 3-4; Dkt. No. 5 at 1; Dkt. No. 7 at 1-2; Dkt. No. 8 at 1-2. Thus, he
fails to set for any viable claims on these grounds.
8 Plaintiff's complaint identifies these entities as “Schenectady Child Support Unite [sic]” and “Div. of Child
Support Enforement [sic] New Port [sic] News District Office.” Dkt. No. 1 at 2.
9 Rule 10(a) of the Federal Rules of Civil Procedure provides that “the title of the complaint must name all the
parties.” FED. R. CIV. P. 10(a). Thus, by not including these defendants in the caption but expressing in his
attachments to his complaint that he wishes to proceed against these individuals, plaintiff is in violation of
Rule 10(a). Affording plaintiff due solicitude, it is clear he seeks to proceed against the Schenectady County
Family Court; Bruce J. Wagner, Support Magistrate; Dylan Reilley, Deputy County Attorney; and Rebecca
Bauscher, child attorney, based on the list of “[p]eople [plaintiff] want to sue in law suit [sic],” Dkt. No. 1-1 at
9, and the names highlighted and starred in the exhibits attached to his complaint. See Dkt. No. 1-3. Thus,
on balance, the undersigned will review such claims.
10 Plaintiff commenced an essentially identical action against defendants Wagner, Reilly, and Bauscher on
August 10, 2022. See Phillips v. Wagner, et al., 1:22-CV-833 (DNH/ML), report and recommendation adopted,
2022 WL 17403441 (N.D.N.Y. Dec. 2, 2022), appeal dismissed, No. 23-68, 2023 WL 4445323 (2d Cir. Apr.
25, 2023) (In this action, plaintiff inverted Reilly Dylan's first and last names and spelled Dylan differently,
but contextually, it is clear it is the same person). Following initial review, that case was dismissed without
prejudice but without opportunity to amend due to lack of subject matter jurisdiction, and judgment was
entered in favor of defendants. See Phillips v. Wagner, et al., 1:22-CV-833 (DNH/ML) at Dkt. No. 9. A plaintiff
cannot commence a new action seeking to review the same issues that this Court already decided against
him. Thus, collateral estoppel may be another alternative basis upon which this Court may dismiss this
complaint. See Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (“[C]ollateral estoppel applies when: (1)
the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and
actually decided, (3) there was a full and fair opportunity for litigation in the prior proceeding, and (4) the issues
previously litigated were necessary to support a valid and final judgment on the merits.”) (internal quotation
marks and citations omitted); See, e.g., Rosenberg v. Shemiran Co., LLC, No. 20-CV2259 (LLS), 2020 WL
1953627, at *3 (S.D.N.Y. Apr. 22, 2020) (“Generally, “dismissals for lack of subject matter jurisdiction are not
on the merits and are not accorded [preclusive] effect.”) Thompson v. Cnty. of Franklin, 15 F.3d 245, 253
(2d Cir. 1994) (citation omitted); see St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir. 2000) (same). But the
doctrine of issue preclusion bars relitigation of the specific issues that the prior court decided in reaching its
jurisdictional determination. See Stengel v. Black, 486 F. App'x 181, 183 (2d Cir. 2012) (“Although a dismissal
for lack of jurisdiction is not an adjudication of the merits of a claim, such a dismissal precludes re-litigation
of the issue it decided.”) (internal citation omitted); St. Pierre, 208 F.3d at 401 (prior dismissal for lack of
standing – a jurisdictional issue – did not bar subsequent claim but did bar relitigation of specific finding
that plaintiff was not loss payee on insurance policy). Because jurisdictional determinations have preclusive
effect, “[a] party that has had an opportunity to litigate the question of subject-matter jurisdiction may not ...
reopen that question in a collateral attack upon an adverse judgment.” Ins. Corp. of Ir., Ltd. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982). A prior dismissal based on lack of subject matter
jurisdiction precludes the same action based on the same facts unless the “jurisdictional defect has been
cured or loses its controlling force.” In re Motors Liquidation Co., ECF 1:16-CV-6927, 17, 2017 WL 3491970,
at *7 (S.D.N.Y. Aug. 14, 2017) (quoting Park Lake Res. Ltd. Liab. Co. v. USDA, 378 F.3d 1132, 1137 (10th
Cir. 2004) (internal quotation marks omitted)).”. However, in connection with the current action, plaintiff has
provided this Court with only portions of orders and filings relating to his child support obligations. He submits
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the signature page from what appears to be an order related to the collection of child support dated May 22,
2024; an order dated July 14, 2022; page three of what appears to be plaintiff's motion to dismiss in family
Court relating to his failure to file proof of service on the petitioner in the family court action and the Support
Collection Unit; a letter dated August 2, 2023, from the county attorney to Magistrate Wagner providing a
proposed order of support which the county attorney asks Magistrate Wagner to adopt (order is not attached);
and a signature page of an order from Support Magistrate Wagner dated August 7, 2023. See Dkt. No. 1-3
at 1. Although it is clear that plaintiff seeks review of orders relating to child support obligations and the
garnishment of wages, and appears to challenge them on the same grounds, the undersigned does not have
sufficient information to determine the procedural posture of the orders of which plaintiff seeks review in this
action to be able to compare them those in the 2022 case. The undersigned determines that it his highly likely
that collateral estoppel bars this action as the issues of which he seeks review appear identical, but without
the full orders before the Court, the undersigned is of the opinion that it cannot be determined with certainty
whether collateral estoppel applies to the issues plaintiff raises in this action. Regardless, as this matter is
subject to dismissal on the many alternative grounds addressed herein, the lack of certainty on this ground
does not impact the undersigned's analysis or recommendation.
11 Plaintiff refers to the underlying court as a county court. See Dkt. No. 1 at 4. The logic applies the same
whether the Court is deemed a family court or a county court.
12 “While Kugler spoke in the context of criminal prosecutions, the same standard applies in the civil context.”
Diamond “D” Const. Corp., 282 F.3d at 201 (citing Moore v. Sims, 442 U.S. 415, 433 (1979)).
13 N.Y. C.P.L.R. 7803 provides that:
The only questions that may be raised in a proceeding under this article are:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of
jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an error of law or
was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or
mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant
to direction by law is, on the entire record, supported by substantial evidence.
N.Y. C.P.L.R. 7803.
14 “An Article 78 petition is the proper vehicle for challenging state actions taken in violation of the Federal
Constitution.” Rhee-Karn, 2014 WL 4494126, at *5 (citations omitted).
15 “A dismissal for lack of subject matter jurisdiction must be without prejudice, because without jurisdiction, the
district court lacks the power to adjudicate the merits of the case.” McKie v. Kornegay, No. 21-1943, 2022
WL 4241355, at *2 (2d Cir. Sept. 15, 2022) (summary order) (internal quotations omitted) (quoting Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)).
16 VIRGINIA DEPARTMENT OF SOCIAL SERVICES, https://www.dss.virginia.gov/family/dcseoffices.cgi?
LimitID=228 [Last visited on Mar. 14, 2025].
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17 The Second Circuit has ruled that “the New York State Unified Court System is unquestionably an arm of
the State, and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v. Spitzer, 568 F.3d 355,
366 (2d Cir. 2009).
18 A support magistrate is similar to a judge and has the power to make decisions about child support ....” NEW
YORK STATE UNIFIED COURT SYSTEM, “Child Support Basic” https://www.nycourts.gov/LegacyPDFS/
courts/5jd/family/Child-Support-Basics-5th-Judicial-District.pdf [Last visited on Mar. 14, 2025].
19 In addition to the defendants discussed above that plaintiff explicitly named in his list of parties that he wanted
to sue, plaintiff also starred and highlighted the name of Jason A. Sidoti, Chief Clerk (“Sidoti”). See Dkt. No.
1-3 at 6. However, plaintiff does not include Sidoti in the list of individuals he wanted to sue, include him in
the parties section of the complaint or caption, or set for any facts or claims against him anywhere in the
complaint or attachments thereto. The only mention of Sidoti in the complaint is the copy of the proposed
order where his name is highlighted and starred. See Dkt. No. 1-3 at 6. The highlight and stars alone are
not enough to name Sidoti as a defendant or raise a claim for relief. The undersigned concludes that, as
to Sidoti, plaintiff's complaint “in its current form fails to state a claim for relief and fails to state the Court's
subject matter jurisdiction” Ajamia, 2014 WL 6078425, at *7; see 28 U.S.C. §§ 1915(e) and 1915A. However,
even if plaintiff had properly named Sidoti as a defendant and raised facts and claims against him, any claims
would be dismissed under the doctrine of quasi-judicial immunity. See Gerken, 2024 WL 4608307, at *10
(“Judicial immunity has been extended to court clerks and others who perform functions closely associated
with the judicial process when they are performing discretionary acts of a judicial nature which are essential
to the judicial process, especially the filing of court documents and managing a court's calendar.”) (internal
quotations and citations omitted); McKnight v. Middleton, 699 F. Supp. 2d 507, 526 (E.D.N.Y. 2010), aff'd, 434
F. App'x 32 (2d Cir. 2011) (summary order) (“Clerk's Office activities of filing and docketing legal documents
are an integral part of the judicial process and are, thus, entitled to absolute immunity.”) (internal quotations
omitted).
20 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3)
additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days
from the date the Report-Recommendation and Order was mailed to you to serve and file objections. See
FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
Id. § 6(a)(1)(c).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Phillips v. Schenectady County Child Support Unit, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1191320
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Julius PHILLIPS, Plaintiff,
v.
SCHENECTADY COUNTY CHILD SUPPORT
UNIT, Division of Child Support Enforcement
Newport News District Office, Schenectady
County Family Court, Bruce J. Wagner, Dylan
Reilly and Rebecca Bauscher, Defendants.
1:24-cv-853 (BKS/PJE)
|
Signed April 24, 2025
Attorneys and Law Firms
Plaintiff pro se: Julius Phillips, Schenectady, NY 12307.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief United States District Judge:
*1 On July 5, 2024, Plaintiff pro se Julius Phillips filed
this action under 42 U.S.C. § 1983, alleging that family
court child support orders violated his Fourth, Fifth, Seventh,
and Fourteenth Amendment rights. (Dkt. No. 1). Plaintiff
sought leave to proceed in forma pauperis. (Dkt. No. 2).
This action was referred to United States Magistrate Paul
J. Evangelist who, on March 24, 2025, granted Plaintiff's
motion to proceed in forma pauperis, and recommended
dismissal without prejudice and without opportunity to amend
for lack of subject matter jurisdiction. (Dkt. No. 4). Magistrate
Judge Evangelista advised Plaintiff that under 28 U.S.C. §
636(b)(1), he had “fourteen (14) days within which to file
written objections to the foregoing report” and that “failure
to object ... within fourteen days will preclude appellate
review.” (Id. at 38). Plaintiff did not file any objections.
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 Evangelista's Report-
Recommendation (Dkt. No. 4) is ADOPTED; and it is further
ORDERED that plaintiff's complaint (Dkt. No. 1) is
DISMISSED in its entirety without prejudice and without
opportunity to amend for lack of subject matter jurisdiction;
and it is further
ORDERED that the Clerk is directed to close this case and
serve this Memorandum-Decision and Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1191320
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Pierce v. Homecomings Financial, LLC, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 5991750
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Harriett PIERCE, Plaintiff,
v.
HOMECOMINGS FINANCIAL, LLC; Residential
Funding Company, LLC; Residential Accredit Loans,
Inc.; Deutsche Bank Trustcompany Americas, as Trustee
for Securitized Trust Rali-Series 2007-QS4 Trust;
Mortgage Electronic Registration System (“MERS”); and
John Does 1 Through 100 Inclusive, et al., Defendants.
1:17-CV-882 (BKS/CFH)
|
Filed 12/04/2017
Attorneys and Law Firms
Harriet Pierce, Saratoga Springs, New York, Pro se.
Patrick G. Broderick, Greenberg Traurig, LLP, 200 Park
Avenue, 39th Floor New York, New York 10166 For
Defendant Deutsche Bank Trust Company Americas as
Trustee for Securitized Trust Rali-Series 2007-QS4
Jantra Van, Roy Robert, Guttmann Zeichner Ellman &
Krause LLP, 1211 Avenue of the Americas, New York, New
York 10036, For Defendants Residential Funding Company,
LLC, Homecomings Financial LLC, and Residential Accredit
Loans, Inc.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes U. S., District Judge
I. BACKGROUND
*1 On August 11, 2017, Plaintiff pro se Harriet Pierce filed
a Complaint challenging a foreclosure proceeding involving
her real property located at 138 Jefferson Street, Saratoga
Springs, New York. (Dkt. No. 1). Plaintiff also filed a motion
for leave to proceed in forma pauperis (“IFP”). (Dkt. No. 4).
On August 28, 2017, Plaintiff filed a motion for a temporary
restraining order (“TRO”) seeking to prevent Defendants
from selling her home or subjecting her to eviction. (Dkt.
No. 11). On August 30, 2017, the Court issued an Order
setting response and reply deadlines with respect to the
motion for a TRO and noting that the Complaint failed to
allege federal question or diversity jurisdiction. (Dkt. No. 12).
The Court therefore ordered the parties to address the issue
of subject matter jurisdiction. (Id. at 2). On September 28,
2017, Defendant Deutsche Bank Trust Company Americas,
as Trustee for Securitized Trust Rali-Series 2007-QS4 Trust
(“Deutsche Bank”), filed a motion to dismiss the Complaint
under Rule 12(b)(1)-(3) and (6) and a response in opposition
to Plaintiff's motion for a TRO. (Dkt. Nos. 14, 15). On
October 23, 2017, Plaintiff filed a “Demand for Judicial
Review.” (Dkt. No. 23).
In a Report-Recommendation and Order entered on October
25, 2017, United States Magistrate Judge Christian F.
Hummel granted Plaintiff's request to proceed IFP but
recommended that the Complaint be dismissed with
leave to amend “to the extent plaintiff may be able to
demonstrate this Court's diversity jurisdiction or federal
question jurisdiction.” (Dkt. No. 24, at 8). Magistrate
Judge Hummel advised Plaintiff that under 28 U.S.C. §
636(b)(1), she had fourteen days within which to file
written objections to the report and that the failure to
object to the report within fourteen days would preclude
appellate review. (Id.). On November 8, 2017, Plaintiff
filed objections to the Report-Recommendation (Dkt. No.
27) and a proposed 1 Amended Complaint (Dkt. No.
28). Deutsche Bank and Defendant Mortgage Electronic
Registration System (“MERS”) subsequently filed motions to
dismiss the Amended Complaint under Rule 12(b)(1)-(2) and
(6). (Dkt. Nos. 32, 35).
For the reasons that follow, the Court adopts the Report-
Recommendation and Order and dismisses the Complaint for
failure to allege subject matter jurisdiction; concludes that the
proposed Amended Complaint fails to allege a federal claim
or diversity jurisdiction; and denies Plaintiff's motions for a
TRO and judicial review and Deutsche Bank's motions to
dismiss as moot.
II. DISCUSSION
A. Standard of Review
1. Objections to Report-Recommendation
Plaintiff objects to the Magistrate Judge's conclusion that
the Complaint fails to allege federal question or diversity
jurisdiction. (Dkt. No. 27). Plaintiff also objects to the
Magistrate Judge's exercise of authority in this case as
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well as his failure to address Deutsche Bank's motion to
dismiss. This Court reviews de novo those portions of the
Magistrate Judge's findings and recommendations that have
been properly preserved with a specific objection. Petersen v.
Astrue, 2 F.Supp.3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C.
§ 636(b)(1)(C). “A proper objection is one that identifies the
specific portions of the [Report and Recommendation] that
the objector asserts are erroneous and provides a basis for this
assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.Supp.2d
290, 296 (E.D.N.Y. 2013) (quoting DuBois v. Macy's Retail
Holdings, Inc., 11-cv-4904, 2012 WL 4060586, at *1, 2012
U.S. Dist. LEXIS 131678, at *3 (E.D.N.Y. Sept. 13, 2012)).
Properly raised objections must be “specific and clearly aimed
at particular findings” in the Report. Molefe v. KLM Royal
Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009).
Findings and recommendations as to which there was no
properly preserved objection are reviewed for clear error. Id.
“To the extent ... that the party makes only conclusory or
general arguments ... the Court will review the Report strictly
for clear error.” DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333,
339 (S.D.N.Y. 2009).
2. Motion to Amend
*2 As noted, following the Report-Recommendation,
Plaintiff filed a proposed Amended Complaint, which the
Court considers together with her objections. In general,
leave to amend should be freely given “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). See Dougherty v. Town of
N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d
Cir. 2002) (“An amendment to a pleading will be futile if
a proposed claim could not withstand a motion to dismiss
pursuant to Rule 12(b)(6).”). To survive a motion to dismiss,
“a complaint must provide ‘enough facts to state a claim to
relief that is plausible on its face.’ ” Mayor & City Council
of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Since Plaintiff is
proceeding pro se, the Court must also liberally construe the
proposed Amended Complaint in her favor. Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009).
B. Federal Question Jurisdiction
Plaintiff objects to Magistrate Judge Hummel's conclusion
that the Complaint failed to allege a basis for federal question
jurisdiction, arguing that the Court has jurisdiction “to issue
injunctive relief” under Section 1964(c) of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1964(c). (Dkt. No. 27, at 6). On de novo review,
the Court finds that Magistrate Judge Hummel properly
concluded that the Complaint, which contains no reference
to the civil RICO statute, or any language that could be
construed as alleging a RICO claim, contained no federal
question.
Further, the proposed Amended Complaint, fails to advance
allegations stating a plausible RICO claim. 2 The RICO
statute, 18 U.S.C. § 1962(c), makes it “unlawful for any
person employed by or associated with any enterprise ... to
conduct or participate in the conduct of such enterprise's
affairs through a pattern of racketeering activity.” To state a
claim under § 1962(c), “a plaintiff must allege (1) conduct,
(2) of an enterprise, (3) through a pattern (4) of racketeering
activity, as well as injury to business or property as a
result of the RICO violation.” Lundy v. Catholic Health
Sys. of Long Island Inc., 711 F.3d 106, 119 (2d Cir. 2013)
(internal quotations and citation omitted). “Racketeering
activity consists of the commission of a predicate act.” Aronov
v. Mersini, No. 14-CV-7998 PKC, 2015 WL 1780164, at
*3, 2015 U.S. Dist. LEXIS 51695, at *7 (S.D.N.Y. Apr. 20,
2015). The RICO statute sets forth a list of acts that qualify as
racketeering activity and includes “any act which is indictable
under [inter alia] ... [18 U.S.C] section 1341 (relating to mail
fraud), 1343 (relating to wire fraud), section 1344 (relating to
financial institution fraud).” 18 U.S.C. § 1961(1)(B); see Beck
v. Prupis, 529 U.S. 494, 497 n.2, 120 S.Ct. 1608, 146 L.Ed.2d
561 (2000) (“Section 1961(1) contains an exhaustive list of
acts of ‘racketeering,’ commonly referred to as ‘predicate
acts.’ ”).
*3 To the extent the Amended Complaint may be read to
allege that Defendants formed an enterprise for the purpose
of fraudulently depriving her of her real property, it fails
to adequately plead commission of a predicate act. Though
it alleges fraudulent conduct, the Amended Complaint does
not identify which predicate act or acts listed in § 1961(1)
(B) Defendants allegedly committed. In any event, “all
allegations of fraudulent predicate acts ... are subject to
the heightened pleading requirements of Federal Rule of
Civil Procedure 9(b).” First Capital Asset Mgmt., Inc. v.
Satinwood, Inc., 385 F.3d 159, 178 (2d Cir. 2004). Rule
9(b) requires a plaintiff to “state with particularity the
circumstances constituting fraud.” Fed. R. Civ. P. 9(b); see
also ECA & Local 134 IBEW Joint Pension Trust of Chi. v.
JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009).
In other words, a plaintiff must: “(1) detail the statements
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(or omissions) that the plaintiff contends are fraudulent, (2)
identify the speaker, (3) state where and when the statements
(or omissions) were made, and (4) explain why the statements
(or omissions) are fraudulent.” Eternity Global Master Fund
Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d
Cir. 2004) (internal quotation marks omitted). “Allegations
that are conclusory or unsupported by factual assertions are
insufficient.” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 99 (2d Cir. 2007).
Plaintiff alleges, among other things, that Deutsche Bank
“concealed the material fact of possession of accepted ...
lawful payments or securities ... in order to unjustly take
into possession of plaintiffs' property” and that Defendant
Homecomings Financial, LLC “concealed the fact that they
were not a Federal Reserve Depository Bank,” the existence
of a third-party “warehouse lender,” and the “terms of the
[s]ecuritization [a]greements.” (Dkt. No. 1, at 13). While
many of the allegations in the Complaint are detailed
(though often incomprehensible), they fail to meet Rule 9(b)’s
particularity requirements because they do not state when and
where the statements were made and do not explain why the
statements or omissions by Defendants were fraudulent. See
Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d
Cir. 1999) (affirming dismissal of RICO claims for “failure
to plead fraud with particularity” and noting that “[e]ven if
we were to find that the time and content of [the pleaded]
communications met the Rule 9(b) standard, plaintiffs' claim
must be dismissed because they failed to allege how those
statements were fraudulent”). Accordingly, there is no basis
on which to find that the Complaint or proposed Amended
Complaint adequately alleges federal question jurisdiction.
C. Diversity Jurisdiction
Magistrate Judge Hummel explained that because, according
to the Complaint, both Plaintiff and Deutsche Bank are
citizens of New York, regardless of the citizenship of
the remaining Defendants, Plaintiff “cannot demonstrate
complete diversity jurisdiction.” (Dkt. No. 24, at 5). In
support of her objection to Magistrate Judge Hummel's
conclusion with respect to diversity, Plaintiff submitted an
affidavit stating that she is a “nonresident alien.” (Dkt. No.
27-2). The affidavit further states, however, that Plaintiff was
born in New York “which is one of the sovereign States of
the Union of several States joined together to comprise the
confederation known as the United States of America” and
lists her address as Saratoga Springs, New York. (Id. at 2,
6). Thus, Plaintiff's objection is without merit. See 28 U.S.C.
§ 1332(a)(1) (federal courts have subject matter jurisdiction
on the basis of “diversity jurisdiction” “where the matter in
controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between ... citizens of different
States”).
The proposed Amended Complaint, which names Trustco
Bank as a Defendant, does not cure this deficiency; it alleges
that Trustco Bank is headquartered in Glenville, New York.
(Dkt. No. 28, at 2). Thus, there being, as discussed in Part
II. B., no plausible federal claim in the proposed Amended
Complaint, the Court declines to exercise jurisdiction over
the remaining state-law claims. See Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d
720 (1988) (“[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors
to be considered under the pendent jurisdiction doctrine
—judicial economy, convenience, fairness, and comity—
will point toward declining to exercise jurisdiction over the
remaining state-law claims.”).
D. Remaining Motions
*4 Having concluded that the Complaint and proposed
Amended Complaint fail to allege a basis for federal
question or diversity jurisdiction, the Court need not reach
Plaintiff's remaining arguments with respect to the Report-
Recommendation and denies Plaintiff's motion for a TRO as
well as the motions to dismiss by Deutsche Bank and MERS.
The Court, however, adopts Magistrate Judge Hummel's
recommendation that Plaintiff be given an opportunity to
amend her complaint in the event she is able to demonstrate
this Court's jurisdiction.
III. CONCLUSION
For these reasons, it is
ORDERED that the Report-Recommendation and Order
(Dkt. No. 24) is adopted in its entirety; and it is further
ORDERED that the Complaint (Dkt. No. 1) and proposed
Amended Complaint (Dkt. No. 28) are dismissed without
prejudice; and it is further
ORDERED that Plaintiff's motion for a TRO (Dkt. No. 11)
and motion for judicial review (Dkt. No. 23) are denied as
moot; and it is further
ORDERED that all of the pending motions to dismiss (Dkt.
Nos. 14, 32, 35) are denied as moot; and it is further
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ORDERED that if Plaintiff fails to file a proposed amended
complaint demonstrating this Court's jurisdiction within thirty
(30) days of the date of this Order, the Clerk is directed to
close this case; and it is further
ORDERED that the Clerk serve a copy of this Order upon
the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 5991750
Footnotes
1 As the Amended Complaint was filed more than 21 days after service of Deutsche Bank's Rule 12(b) motion,
Plaintiff may amend her pleading “only with the opposing party's written consent or the court's leave.” Fed.
R. Civ. P. 15(a)(1)(B). Accordingly, the Court construes Plaintiff's submission as a motion to amend the
complaint.
2 The Local Rules of the Northern District of New York require that when a civil RICO claim is asserted before
this Court, “the party asserting such a claim shall file a RICO statement within (30) days of the filing of the
pleading containing such a claim.” N.D.N.Y.L.R. 9.2. Plaintiff commenced this action on August 11, 2017,
but has failed to file a RICO statement. Therefore, Plaintiff's RICO claim may be dismissed for this reason
alone. See Amaker v. Kelley, No. 01 Civ. 877, 2009 WL 385413, at *11, 2008 U.S. Dist. LEXIS 123604, at *34
(N.D.N.Y. Feb. 9, 2009), aff'd, 399 Fed.Appx. 688 (2d Cir. 2010); Spoto v. Herkimer County Trust, No. 99 Civ.
1476, 2000 WL 533293, at *3 n.2, 2000 U.S. Dist. LEXIS 6057, at *9 n.2 (N.D.N.Y. Apr. 27, 2000). The RICO
statement form is available at http://www.nynd.uscourts.gov/sites/nynd/files/general-ordes/GO14_0.pdf.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2021 WL 3737780
United States District Court, N.D. New York.
Susan L. POOLE; Thomas Clatterbuck; Sue Clatterbuck;
Joseph S. Cochran; Brenda S. Cochran; Charles C.
Manner; Dennis H. Owens; Brent Rogers; Robert Shaw;
New York Animal and Farm, LLC; John Doe 1; John
Doe 2; Jane Doe 2; John Doe 3; John Doe 4; John Doe
5; John Doe 6; John Doe 7; and Jane Doe 7, Plaintiffs,
v.
Brian BENDIXEN; Amber Brown; Karen Cartier;
Earl Dehmey; James Kelleher; Sharad Marthur; Alex
Bachelor; Martin Bates; Alan Bernon; Andrew Brummel;
Kristen Coady; David Darr; Doug Glade; Keith Gomes;
Brad Keating; Jackie Klippenstein; Monica Massey;
Randy McGinnis; Pat Panko; Dennis Rodenbaugh;
Rick Smith; Kevin Strathman; Edward Tilley; Jay
Waldvogel; Greg Wickham; John Wilson; Larry Bailey;
Bruce Bartley; William Besancon; Patricia Bikowsky;
Kenneth Birker; Keith Broumley; Glen Easter; Craig
Elder; Travis Fogler; Alan Gerratt; Gregory Gibson;
Buster Goff; Larry Griffith; Larry Hancock; Dean
Handy; Brian Hardy; Todd Hathorn; Jerrel Heatwole;
Kent Herman; Neil Hoff; Garry Kibler; Chris Kraft;
Lilah Krebs; Scott Lackey; Byron Lehman; Melvin
Medeiros; Randy Mooney; Larkin Moyer; Dwight
Nash; Doug Nuttelman; Thomas Oelrichs; Peter Olsen;
Leroy Ornellas; Jacques Parent; Valeri Patten; Rick
Podtburg; Jeff Raney; Brian Rexing; Terry Rowlett; Dan
Senestraro; Ron Shelton; Larry Shover; Jerry Spencer;
Sandy Stauffer; Steve Strickler; Perry Tjaarda; Case Van
Steyn; David White; and John Woebler, Defendants.
5:20-CV-0697 (GTS/ATB)
|
Signed 08/24/2021
Attorneys and Law Firms
LAW OFFICE of JOSHUA HAAR, Counsel for Plaintiffs,
1495 Paddock Road, West Edmeston, NY 13485, OF
COUNSEL: JOSHUA HAAR, ESQ.
BOND SCHOENECK & KING, PLLC, Counsel for
Defendants, One Lincoln Center, Syracuse, NY 14202, OF
COUNSEL: BRIAN J. BUTLER, ESQ.
DECISION and ORDER
Glenn T. Suddaby, Chief U.S. District Judge
*1 Currently before the Court, in this civil Racketeer
Influenced and Corrupt Organizations (“RICO”) action filed
by the above-captioned dairy supply business, dairy company
shareholder and seventeen dairy farmers (“Plaintiffs”) against
the seventy-five above-captioned agents, managers and board
members of a national dairy cooperative (“Defendants”), are
Defendants’ motion to dismiss Plaintiffs’ Complaint for lack
of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2)
and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)
(6), and Defendants’ motion for sanctions pursuant to Fed.
R. Civ. P. 11. (Dkt. No. 11; Dkt. No. 15.) For the reasons set
forth below, Defendants’ motion to dismiss is granted, and
Defendants’ motion for sanctions is denied.
I. RELEVANT BACKGROUND
A. Summary of Plaintiffs’ Complaint
Generally, liberally construed, Plaintiffs’ Complaint alleges
that the Dairy Farmers of America, Inc. (“DFA”), through
Defendants (i.e., its agents, managers, and board members),
used extortion to gain control of both the exclusive market
for dairy farmers’ raw milk and the exclusive source of
finished dairy products for retail in numerous areas of the
country. (See generally Dkt. No. 1 [Plf.’s Compl.].) Based
on these factual allegations, Plaintiffs’ Complaint claims that
Defendants violated the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) 18 U.S.C. § 1964, and asks
the Court to do the following: (1) declare Defendants liable
for damages for racketeering; (2) order the receivership and
subsequent divestiture of all processing operations owned
or controlled by the DFA; (3) order the DFA be dissolved
and any equity returned to its member farms, and that those
member farms be released from any and all obligation to the
DFA; (4) award damages, costs, and attorneys’ fees; and (5)
award such further relief as the Court sees fit. (See generally
id.)
B. Three Alleged Predicate Acts of Extortion
Plaintiffs’ Complaint and Civil RICO Statement alleges that
Defendants committed three acts of extortion that qualify as
predicate acts sufficient to support their RICO claims. (Dkt.
No. 1; Dkt. No. 10.) 1 To provide context for the parties’ legal
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arguments and the Court's analysis, the Court describes the
alleged acts below. 2
1. Consent to Settle Antitrust Claims
The first alleged predicate act originated in June 2014, when
the DFA was facing a jury trial in Vermont on antitrust
grounds. (Dkt. No. 1, at 42.) According to Plaintiffs, in
2016, after two unsuccessful attempts to settle the lawsuit,
the DFA's leadership extorted dairy farmers (who were
members of the DFA and had previously rejected the first
two settlements) with threats that, if those dairy farmers did
not sign and support the DFA's settlement, those farmers
should consider switching to organic milk production and
start looking for new processing plants, they would be
dismissed from their cooperatives, and their cooperatives
could lose access to DFA's nation-wide marketing entity
Dairy Marketing Services 3 (“DMS”). (Id. at 43-44.) More
than 1,200 farmers from the DFA and other entities, including
“independent” dairy farmers, signed the DFA's form letters,
and the suit against the DFA was settled and closed. (Id. at 45.)
2. Obtaining a Controlling Share
of the National Milk Supply
*2 The second alleged predicate act occurred when
the DFA's leadership, emboldened by the earlier coerced
settlement, used its control over national milk markets to
make it impossible for a mid-sized plant to find milk outside
of the DFA/DMS, or for an individual farmer or small
cooperative to send its milk to such a plant. (Id. at ¶ 46.)
According to Plaintiffs, the DFA managers gave independent
farmers and cooperatives who had shipped their products
through DMS a choice: market their milk through the DFA
and agree to a “market adjustment” deduction from the
farmers’ pay price, or lose market access. (Id. at 47.) Although
the U.S. Department of Agriculture estimated the milk per-
hundredweight cost of production to be $21.74 in 2018
(including land, equipment, and labor put in by unpaid
owner/operator farmers), one Midwest cooperative's DFA
market adjustment was more than 25% of its farmers’ per-
hundredweight milk price of $16.00, and a northeast farm
had to choose between losing $2.50 of its per-hundredweight
price of $12.00 or having no market access for its milk. (Id.
at 48-49.)
The DFA managers also used the cooperative's position as
the primary supplier of certain regional dairy processors to
dictate the terms on which those processors could accept
milk from smaller cooperatives or individual farmers, thereby
substantially controlling the entire milk market without
exercising direct ownership of it. (Id. at 50.) After the DFA
absorbed another cooperative in 2019, Agri-Mark and its 850
members became the only significant alternative cooperative
in the northeast. (Id. at 52.) However, Agri-Mark was and
is forbidden from taking on members from the DFA without
its express permission. (Id.) DFA managers were able to
charge milk buyers over-market prices for milk products
while simultaneously paying farmers less than the cost of
production, because prospective dairy farmers had no viable
option, aside from the DFA, to whom to sell their milk, and
prospective milk processors had no other viable option, aside
from the DFA, from which to buy milk. (Id. at 53.) Numerous
dairy farmers, regardless of whether they are members of the
DFA or other smaller “independent” cooperatives, were and
are afraid to raise any concern out of a fear of retaliation from
the DFA. (Id. at 54.)
3. Controlling the Nation's
Largest Dairy Processing Network
The third alleged predicate act concerned the DFA's
relationship with Dean Foods. According to Plaintiffs, DFA's
management demanded Dean Foods pay the DFA over-
market prices in order to maintain access to its milk,
which constituted approximately 60% of Dean Foods’ milk
utilization. (Dkt. No. 1 at 56.) On or about November 12,
2019, Dean Foods filed for chapter 11 bankruptcy, listing the
DFA as its largest trade creditor; the DFA was owed $173
million, while the second-largest trade creditor was owed $8
million. (Id. at 58.) During the time leading up to the Dean
Foods bankruptcy filing, the DFA was, at substantially all
times, Dean Foods’ primary supplier of USDA Grade A raw
milk, and the amounts paid for the USDA Grade A raw milk
were, at substantially all times, Dean Foods’ primary input
cost. (Id. at 59.) When Dean Foods announced its bankruptcy
filing, it also announced that it was in advanced discussions
with the DFA to transfer substantially all of its assets to the
DFA. (Id. at 63.)
Despite the availability of financing for an out-of-court
restructuring prior to the bankruptcy filing, Dean Foods
expressed no real interest in restructuring to avoid bankruptcy.
(Id. at 65.) Mr. Gary Ralphs served on PepsiCo's senior
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management in 2015 when PepsiCo turned over a $206
million plant in Batavia, New York, to the DFA for thirty
cents on the dollar following the bankruptcy of a PepsiCo
dairy processing joint venture with Quaker Muller. (Id. at 64.)
In May 2019, Mr. Ralphs became a Senior Vice President
at Dean Foods in its Finance and Strategy Division; in
September 2019, he became Dean Foods’ CFO, a position he
held for the duration of the bankruptcy and sale to the DFA.
(Id.) Dean Foods had no alternative source for the volume of
milk which the DFA provided during its working relationship,
and, even if it had located an alternative source for the volume
of milk, Dean Foods could not materially breach or terminate
its milk supply agreement with the DFA without incurring a
$96 million penalty. (Id. at 66.) Had Dean Foods continued
operating into 2021, the penalty would have expired without
any obligation to pay any portion of the principal or interest.
(Id.)
C. Parties’ Briefing on Defendants’ Motion to Dismiss
*3 Generally, in support of their motion to dismiss,
Defendants assert the following six alternative arguments:
(1) Plaintiffs’ Complaint should be dismissed for failure to
comply with the timely filing of a RICO statement, pursuant
to Local Rule 9.2 of the District's Local Rules of Practice,
because Plaintiffs were required to file their RICO statement
by July 22, 2020, and instead filed their RICO statement
on September 3, 2020, approximately six weeks late, with
no excuse or explanation for their tardiness; (2) Plaintiffs’
Complaint fails to satisfy fundamental notice and pleading
requirements because (a) it fails to assert a single factual
allegation about the conduct of any of the seventy-five
(75) Defendants, and Plaintiffs’ RICO statement similarly
fails to expressly allege that any one individual Defendant
actually committed two predicate acts or otherwise conspired
to commit a RICO violation, and (b) even where Plaintiffs’
RICO statement does refer to individual Defendants, it
impermissibly lumps their conduct together without any
differentiation or explanation, offering only vague, sweeping
allegations that are plainly insufficient to satisfy Rule 8's
minimum standard; (3) Plaintiffs lack standing to assert
their RICO claim because (a) their Complaint does not
allege any link between Defendants’ conduct and Plaintiffs
in that their first and second alleged predicate acts do not
include any allegations that Defendants caused any injury to
Plaintiffs, (b) the third predicate act makes no reference to
any action by Defendants nor any injury that they allegedly
caused Plaintiffs, and, even if the Complaint had alleged
that DFA's management pressured Dean Foods to overpay
for DFA's milk (which in turn led Dean Foods to declare
bankruptcy, which in turn injured Dean Foods’ shareholders),
it is nevertheless insufficient to establish RICO standing for
Plaintiff Poole or the dairy farmer Plaintiffs, (c) the law is well
settled that a company's shareholders generally lack standing
to assert a civil RICO claim, and Plaintiff Poole's suit as a
shareholder fails to show she suffered any different individual
harm as compared to other shareholders, and (d) nothing
in Plaintiffs’ RICO statement asserts any particularized
allegations about how any one of the individual Defendants
proximately caused harm to any one of the individual
Plaintiffs; (4) Plaintiffs have failed to sufficiently plead a
RICO claim because (a) they have failed to allege a RICO
conspiracy in that the alleged conspiracy of the operational
agreement among the DFA's individual board members and
managers to create and use the fear of personal failure to
force substantially all U.S. dairy farmers to market their milk
through Defendants’ enterprise fails to allege that Defendants
knowingly conspired to conduct or participate in the affairs
of an enterprise through a pattern of racketeering activity,
(b) Plaintiffs have not adequately alleged a substantive
RICO violation in that (i) their Complaint fails to allege
which predicate act Defendants committed, and the civil
RICO statement also fails to allege that any one Defendant
committed two predicate acts, (ii) none of the predicate acts
alleged by Plaintiffs qualifies as a RICO extortion under the
Hobbs Act given that the use of economic fear as leverage to
drive a hard bargain in an ordinary commercial relationship
does not support a RICO claim based on extortion, (iii) even
if the predicate acts were true and timely (which they are
not), the first and second predicate acts cannot constitute
extortion under the Hobbs Act given that Defendants’ conduct
was lawful hard-bargaining, and Plaintiffs did not have any
“preexisting right” or entitlement to do business with the
DFA, and (iv) Plaintiffs third predicate act, even if true,
alleges that Defendants committed extortion against a third
party, not Plaintiffs, and, in any event, the alleged conduct
does not constitute extortion under the Hobbs Act, (c)
Plaintiffs’ Complaint fails to allege a pattern of racketeering
in that it fails to allege that any Defendant committed two
cognizable predicate acts of extortion, and (d) Plaintiffs
have not sufficiently alleged Defendants’ relationship to a
RICO enterprise in that Plaintiffs fail to pled the existence
of an enterprise separate and apart from the DFA, which
is insufficient as a matter of law; (5) Plaintiffs have failed
to establish personal jurisdiction over Defendants because
(a) Plaintiffs fail to allege facts plausibly suggesting that a
specific Defendant resides in, is found in, has an agent in,
or transacts his or her affairs in the Northern District of
New York, and (b) Plaintiffs’ substantial business standard
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is inapplicable to establish personal jurisdiction for RICO
claims; and (6) the claim brought by the anonymous John and
Jane Doe Plaintiffs should be dismissed because there is no
conceivable privacy concern that could justify any Plaintiff
proceeding anonymously. (See generally Dkt. No. 11, Attach.
3 [Defs.’ Mem. of Law].)
Generally, in opposition to Defendants’ motion, Plaintiffs
assert the following seven arguments: (1) their Complaint
alleges both the direct and proximate cause of their RICO
injuries because (a) the sequence between Defendants’
alleged extortion and Plaintiffs’ injury is direct in that
Plaintiffs lost milk income as a result of Defendants’
extortion, and (b) Plaintiff Poole's loss of invested shares
in Dean Foods is a personal and independent injury in that
her loss of share value constituted a personal loss to her;
(2) Plaintiffs’ Complaint provides fair notice to Defendants
because (a) it sufficiently traces Plaintiffs’ injuries to each
Defendant by initially listing each individual Defendant as an
“agent,” “manager,” or “board member,” who “performed,”
“directed,” or “aided and abetted” a conspiracy, and by
subsequently describing which conduct was performed by
individuals or groups of individuals, and (b) the relevant
inquiry is what is the nature of each Defendant's participation
in the unlawful agreement, not whether each Defendant
committed each predicate act; (3) Plaintiffs’ Complaint
alleges an unmistakable pattern of racketeering because (a)
it alleges three predicate acts of extortion and explains how
each successive act made full use of the leverage gained
by the preceding acts, (b) the predicate acts cannot be
characterized as the use of lawful economic fear as leverage
to drive a hard bargain in an ordinary commercial relationship
in that Plaintiffs’ fear extends beyond mere financial or
business concerns due to Defendants’ comprehensive control
of available milk markets and the distribution network; (4)
Plaintiffs’ Complaint alleges a separate and distinct RICO
enterprise because (a) it alleges that Defendants conspired
to operate the DFA by a pattern of racketeering in order to
build a personally controlled milk empire and that Defendants
were acting on behalf of their own interests when engaging
in their “empire building” activities, which are fundamentally
different than the DFA's marketing activities, (b) although
these empire-building activities benefited the DFA as a
whole, they plainly did not benefit the DFA as a cooperative
due to the severe injuries suffered by many of the DFA's
member-owners, and (c) even where the distinction between
Defendants’ milk-marketing and empire-building activities is
less clear, the law cannot be read so as to merge the person
and enterprise wherever some benefit from the person's illegal
conduct can be attributed to the enterprise, or it would insulate
racketeering under the very statute designed to eradicate
it; (5) Plaintiffs’ Complaint establishes personal jurisdiction
over each Defendant because corporate agents are subject to
personal jurisdiction within a district if their activities in the
district are outside of the corporations’ ordinary activities,
and each Defendant has agreed to further an unlawful course
of conduct outside of the DFA's ordinary activities, which
is the factual scenario in this case; (6) Plaintiffs’ Complaint
establishes jurisdiction over the claims of the John and
Jane Doe Plaintiffs because a plaintiff may proceed under a
pseudonym where his or her interest in anonymity outweighs
the general public interest in disclosure as well as any
prejudice to Defendants and, in this case, the relative interests
weigh in favor of the anonymous Plaintiffs in that they are
essentially whistle-blowers and Defendants face no prejudice
that the issues raised in this case arise from Defendants’
own misconduct, which are not directed at any individual
plaintiff or Doe Plaintiff; and (7) Plaintiffs’ claims are timely
because (a) the statute of limitations runs for four years
from the time the plaintiff discovers or reasonably should
have discovered the alleged injury (not from the date of the
alleged predicate acts) and here Plaintiffs did not reasonably
discover the alleged injury until the DMS ceased operations
in 2017, (b) Defendants’ objection to the RICO statement on
timeliness grounds is moot in that they argue that Plaintiffs
RICO statement “fails to aid Plaintiffs’ claims” and “largely
rehashed generic, undetailed, and unspecific allegations,” and
(c) in any event, both parties were working in good faith on
other aspects of the case, and Defendants gained an additional
three-and-a-half weeks to review the RICO Statement prior to
filing their response to the Complaint, thereby nullifying any
good-faith basis to challenge the RICO statement's timing.
(See generally Dkt. No. 14 [Plfs.’ Mem. of Law].)
*4 Generally, in reply to Plaintiff's opposition, Defendants
repeat their original arguments, and clarify them as follows:
(1) Plaintiffs’ Complaint should be dismissed for failure to
comply with Local Rule 9.2 because (a) they were required
to file their RICO Statement by July 22, 2020, and instead
filed it on September 3, 2020, without requesting leave
from the Court to file six weeks late, (b) Defendants’ view
of the quality of Plaintiffs’ RICO Statement is irrelevant
to its timeliness, and (c) while both parties were working
on other aspects of the case, Plaintiffs’ deadline for filing
their RICO Statement (or an agreement about extending the
deadline) was never discussed; (2) Rule 8 of the Federal
Rules of Civil Procedure requires the dismissal of Plaintiffs’
Complaint because Defendants’ conduct is impermissibly
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lumped together, and Plaintiffs have not identified any
other allegations in their RICO Statement (aside from their
“grouping” of Defendants) that provide any greater notice to
Defendants of their alleged misconduct; (3) Plaintiffs have
failed to establish RICO standing by failing to allege that
(a) they fail to allege that Defendants, alone or as a group,
proximately caused an injury to any Plaintiff, (b) the subset
of dairy farmer-Plaintiffs who allege they have been injured
by the extortion of milk-check deductions do not allege a
single fact plausibly suggesting that their injury was caused
by any Defendant, and (c) Plaintiff Poole has no standing as
a shareholder of Dean Foods in that the law is well settled
that a company's shareholders generally lack standing to bring
a civil RICO claim; (4) Plaintiffs have failed to sufficiently
plead a RICO conspiracy because (a) their Complaint fails
to allege an agreement to commit a substantive RICO
violation in that their allegation that Defendants maintained
an “operational agreement among DFA's individual board
members and managers to create and use the fear of
personal failure as stewards ... to force substantially all
U.S. dairy farmers to market their milk through Defendants’
enterprise” does not allege that Defendants agreed to commit
racketeering, to commit predicate acts, or otherwise commit
a substantive RICO violation, and (b) Plaintiffs have failed to
allege the required elements of a substantive RICO violation
in that (i) their Complaint does not allege the conspiracy
included an agreement to commit cognizable predicate acts
(given that the DFA, as a cooperative, can certainly engage
in hard-bargaining with its members), and the second and
third predicate acts do not even concern the DFA's own
members, (ii) Second Circuit precedent explains that hard-
bargaining can occur even where someone is desperate and
the economic consequences of refusing an act are dire, and
(iii) Plaintiffs’ first alleged predicate act is untimely because
Plaintiffs’ allege that DFA's managers extorted them into
signing letters in support of a settlement, thereby injuring the
signees, outside of the four-year statute of limitations period,
(c) Plaintiffs have failed to allege a pattern of racketeering
activity in that they have failed to allege that a Defendant
committed two cognizable predicate acts, and (d) Plaintiffs
have failed to sufficiently allege a RICO enterprise in that (i)
their Complaint alleges that the enterprise at issue is the DFA,
and (ii) their Complaint does not allege that the enterprise
at issue is some association-in-fact consisting of Defendants
carrying out activities separate and apart from their work
as DFA board members and employees; (5) Plaintiffs have
failed to establish personal jurisdiction over each Defendant
because, in a civil RICO action, a plaintiff must show that a
specific defendant resides in, is found in, has an agent in, or
transacts his or her affairs in the district, and Plaintiffs have
failed to allege any of these activities occurred within the
Northern District of New York; and (6) the claims brought
by anonymous Plaintiffs should be dismissed because the law
provides for anonymity only in “exceptional cases,” and this
is no such “exceptional” case. (See generally Dkt. No. 16.)
D. Parties’ Briefing on Defendants’ Motion for
Sanctions
Generally, in support of their motion for sanctions,
Defendants assert the following two arguments. First,
Defendants argue that sanctions should be imposed on both
Plaintiffs’ counsel and Plaintiffs themselves because the
Complaint is frivolous, unsupported in law, and unsupported
in fact. (Dkt. No. 15, Attach. 6, at 14-23.) In support of
this argument, Defendants reassert their arguments from their
motion to dismiss. (Id.) Defendants also highlight the prior
history of Plaintiffs’ counsel's with the DFA, specifically his
prior involvement in Haar v. Allen, 687 F. App'x 93, 95 (2d
Cir. 2017), the denial of his pro hac vice application in Carlin
v. DairyAmerica, Inc., 09-CV-0430, 2019 U.S. Dist. LEXIS
115717, at *6-7 (E.D. Cal. July 11, 2019), and his attempt
to intervene in the bankruptcy proceedings concerning Dean
Foods, where, after withdrawing a motion under an apparent
“threat of sanction,” he filed a “highly inflammatory and
unprofessional amicus brief.” (Dkt. No. 15, Attach. 6, at
11-12.) Second, Defendants argue that Plaintiffs’ Complaint
was filed for an improper purpose because the Complaint is
strikingly inadequate on its face and it was filed in service of
the personal agenda of Plaintiff's counsel, not in service of
justice. (Id. at 23-24.)
Generally, in opposition of Defendants’ motion for sanctions,
Plaintiffs assert the following three arguments: (1) Plaintiffs
have provided each Defendant with objective notice because
(a) they have pled facts showing that each Defendant
participated in an agreement to use their organization to extort
other dairy industry participants to gain substantial control
of the U.S. dairy industry, (b) each Defendant had authority
over such activities, (c) each Defendant is subject to personal
jurisdiction through purposeful availment, thereby satisfying
Fed. R. Civ. P. 8, (d) the declarations submitted by Defendants
in support of their motion support the fact that each Defendant
was well aware of the extortion methods used within their
organization, and (e) Defendant Heatwole's declaration is
not credible because the evidence underlying Plaintiffs’
Complaint involves Defendant Heatwole telling struggling
farmers to “find another job [they] like because [the] DFA
runs the dairy industry;” (2) Plaintiffs possess standing
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under the RICO act because (a) Defendants’ definition of
a legal standard omits the causation elements that places
Plaintiffs’ injuries within recoverable civil RICO injuries,
(b) the predicate acts, by themselves, have no bearing on
the statute of limitations issues, and Defendants attempt to
conflate the actions of Defendants’ first predicate act with
the injury suffered by Plaintiffs, and (c) a shareholder has
standing to recover personal injuries, and Second Circuit
precedent explicitly provides for the recovery of injuries
suffered by a shareholder where stock is stolen and the
individual suffers an injury personal to him or her and no
other; and (3) the facts alleged by Plaintiffs leave no doubt
that the threats alleged are distinctly personal, not merely
economic, and that the relationship between a dairy farmer
and a cooperative which controls all outlets for the farm's
milk is anything but an ordinary commercial relationship,
both in terms of duty and of comprehensive market control.
(See generally Dkt. No. 17.)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing a Motion to Dismiss for
Failure to State a Claim
*5 It has long been understood that a dismissal for failure
to state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549 F.
Supp. 2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.,
adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
some elaboration regarding that ground is appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed. R. Civ. P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d
at 212, n.20 (citing Supreme Court case). On the other hand,
the Supreme Court has held that, by requiring the above-
described “showing,” the pleading standard under Fed. R.
Civ. P. 8(a)(2) requires that the pleading contain a statement
that “give[s] the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Jackson, 549 F.
Supp. 2d at 212, n.17 (citing Supreme Court cases) (emphasis
added). 4
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212, n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 556 U.S. 662, 677-82 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme
Court reversed an appellate decision holding that a complaint
had stated an actionable antitrust claim under 15 U.S.C. §
1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In
doing so, the Court “retire[d]” the famous statement by the
Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief.” Twombly, 550 U.S. at 561-62. Rather than turn on the
conceivability of an actionable claim, the Court clarified, the
“fair notice” standard turns on the plausibility of an actionable
claim. Id. at 555-70. The Court explained that, while this does
not mean that a pleading need “set out in detail the facts upon
which [the claim is based],” it does mean that the pleading
must contain at least “some factual allegation[s].” Id. at 555.
More specifically, the “[f]actual allegations must be enough to
raise a right to relief above the speculative level [to a plausible
level],” assuming (of course) that all the allegations in the
complaint are true. Id.
*6 As for the nature of what is “plausible,” the Supreme
Court explained that “[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). “[D]etermining whether a complaint states
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a plausible claim for relief ... [is] a context-specific task
that requires the reviewing 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 show[n]–that the pleader is entitled to relief.” Iqbal, 556
U.S. at 679 [internal quotation marks and citations omitted].
However, while the plausibility standard “asks for more than a
sheer possibility that a defendant has acted unlawfully,” id. at
678, it “does not impose a probability requirement.” Twombly,
550 U.S. at 556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 556 U.S. at
678. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Id.
(internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. (citations omitted).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 5
B. Legal Standard Governing a Motion for Rule 11
Sanctions
*7 Rule 11(b)(2) of the Federal Rules of Civil Procedure
provides in pertinent part that, by presenting a complaint to
the court, the attorney signing or filing the complaint
certifies that to the best
of the person's knowledge,
information, and belief, formed
after an inquiry reasonable
under the circumstances ... the
claims, defenses, and other legal
contentions are warranted by
existing law or by a nonfrivolous
argument for extending, modifying,
or reversing existing law or for
establishing new law.
Fed. R. Civ. P. 11(b)(2). Rule 11(c)(1) provides in pertinent
part that sanctions may be imposed on the attorney or any
party that is “responsible for the violation.” Fed. R. Civ. P.
11(c)(1). “Rule 11 is targeted at situations where it is patently
clear that a claim has absolutely no chance of success under
the existing precedents, and where no reasonable argument
can be advanced to extend, modify, or reverse the law as it
stands.” Rodrick v. City of Schenectady, 1 F.3d 1341, 1350
(2d Cir. 1993) (internal quotation marks omitted) (quoting
Associated Indem. Corp. v. Fairchild Indus., 961 F.2d 32,
34 [2d Cir. 1992]). Because the inquiry must be “reasonable
under the circumstances,” liability for Rule 11 violations
“requires only a showing of objective unreasonableness” on
the part of the attorney or party. Ted Lapidus, S.A. v. Vann,
112 F.3d 91, 96 (2d Cir. 1997) (emphasis omitted); accord,
ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 150
(2d Cir. 2009).
C. Legal Standard Governing Civil RICO Claims
It is “unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise's
affairs through a pattern of racketeering activity.” 18 U.S.C.
§ 1962(c). Section 1962(d) applies the same prohibitions to a
defendant who conspires to violate Section 1962(c). Malvar
Egerique v. Chowaiki, 19-CV-3110, 2020 WL 1974228, at *7
(S.D.N.Y. Apr. 24, 2020). Section 1964 establishes a private
right of action for individuals who are harmed by racketeering
activity. 18 U.S.C. § 1964. This private right of action permits
a plaintiff to bring a RICO claim for sustaining injuries “in
his business or property by reason of a violation of section
1962.” 18 U.S.C. § 1964(c). Generally, a plaintiff bringing
a civil RICO claim under “Section 1962(c) must allege that
(1) the defendant has violated the substantive RICO statute,
and (2) the plaintiff was injured in his business or property
“by reason of a violation of section 1962.” Malvar Egerique,
2020 WL 1974228, at *7 (citing Moss v. Morgan Stanley, Inc.,
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719 F.2d 5, 17 [2d Cir. 1983] [citing 18 U.S.C. § 1962(c)]).
More specifically, to assert a civil RICO claim under Section
1962(c), a plaintiff must allege the following elements: “(1)
conduct, (2) of an enterprise, (3) through a pattern, (4) of
racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473
U.S. 479, 496 (1985). Additionally, a plaintiff asserting a civil
RICO claim must plead facts plausibly suggesting a resulting
“domestic injury” to their business or property. RJR Nabisco,
Inc. v. European Community, 136 S. Ct. 2090, 2111 (2016).
*8 Regarding the second element, an “enterprise” includes
“any individual, partnership, corporation, association, or
other legal entity, and any union or group of individuals
associated in fact although not a legal entity.” 18 U.S.C.
§ 1961(4). To allege an enterprise, a plaintiff must allege
an “ongoing organization, formal or informal” and that “the
various associates function as a continuing unit.” United
States v. Turkette, 452 U.S. 576, 583 (1981). In particular, a
RICO enterprise must be “an entity separate and apart from
the pattern of activity in which it engages.” Turkette, 452
U.S. at 583. The Second Circuit has “long recognized [that]
the plain language and purpose of the statute contemplate
that a person violates the statute by conducting an enterprise
through a pattern of criminality. It thus follows that a
corporate person cannot violate the statute by corrupting
itself.” Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d
Cir. 2013) (citing Bennet v. U.S. Tr. Co. of N.Y., 770 F.2d 308,
315 [2d Cir. 1985]). Accordingly, a plaintiff alleging a civil
RICO claim must allege the existence of two distinct entities,
a person, and an enterprise. Chowaiki, 2020 WL 1974228, at
*8; Cruz, 720 F.3d at 120.
Regarding the third and fourth elements, to sufficiently allege
a “pattern of racketeering activity,” a plaintiff must allege
at least two acts of “racketeering activity” that occur within
ten years of each other. 18 U.S.C. § 1961(5). “Racketeering
activity” refers to the predicate acts necessary to establish a
RICO claim and includes extortion. See 18 U.S.C. § 1961(1)
(listing predicate acts that constitute a racketeering activity).
To qualify as a “pattern” of racketeering activity, the predicate
acts “must be from the crimes listed in [Section] 1961(1) and
they must be ‘related, and ... amount to or pose a threat of
continued criminal activity.’ ” Westester Cnty. Indep. Party v.
Astorino, 137 F. Supp. 3d 586, 608 (S.D.N.Y. 2015) (emphasis
in original) (quoting Cofacredit, S.A. v. Windsor Plumbing
Supply Co., 187 F.3d 229, 242 [2d Cir 1999]). “ ‘It is this
factor of continuity plus relationship which combines to
produce a pattern.’ ” H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 239 (1989) (emphasis in original) (quoting
Sedima, 473 U.S. at 496 n.4).
Regarding the relationship factor, for predicate crimes to be
considered related to each other under RICO, they must be
related to both each other (termed “horizontal relatedness”)
and the enterprise as a whole (“vertical relatedness”). Reich
v. Lopez, 858 F.3d 55, 60-61 (2d Cir. 2017 (citing United
States v. Cain, 671 F.3d 271, 284 [2d Cir. 2012]). “Vertical
relatedness, which entails the simpler analysis, requires only
‘that the defendant was enabled to commit the offense solely
because of his position in the enterprise or his involvement
in or control over the enterprises’ affairs, or because the
offense related to the activities of the enterprise.’ ” Reich,
858 F.3d at 61 (quoting United States v. Burden, 600 F.3d
204, 216 [2d Cir. 2010]). “[P]redicate acts are horizontally
related when they ‘have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics and are not
isolated events.” Id. at 61 (emphasis in original) (quoting
H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 [1989]).
Therefore, “when dealing with an enterprise that is primarily
a legitimate business ... courts must determine whether there
is a relationship between the predicate crimes themselves’
and that requires a look at, inter alia, whether the crimes
share ‘purposes, results, participants, victims, or methods of
commission.’ ” Id. (quoting H.J., 492 U.S. at 240).
Regarding the continuity factor, “[t]o satisfy continuity, the
plaintiff must establish either ‘a series of related predicate
acts extending over a substantial period of time’ (‘closed-
ended continuity’) or ‘a threat of continuing criminal
activity’ (‘open-ended continuity’). Malvar Egerique, 2020
WL 1974228, at *9 (quoting Cofacredit, S.A., 187 F.3d at
242). “RICO targets conduct that ‘amounts to or poses a
threat of continued criminal activity.’ ” Reich, 858 F.3d at
60 (alterations omitted) (quoting H.J., 492 U.S. at 239).
Closed-ended continuity is “primarily a temporal concept” id.
(quoting Spool v. World Child Int'l Adoption Agency, 520 F.3d
178, 184 [2d Cir. 2008]), “and it requires that the predicate
crimes ‘extend over a substantial period of time’ ” id. (quoting
H.J., 492 U.S. at 242). Generally, the Second Circuit “requires
that the crimes extend over at least two years.” Id. (citing
Spool, 520 F.3d at 184). However, criminal activity that by
its nature projects into the future with a threat of repetition
is considered open-ended continuity and can be established
in several ways, including where the predicate acts were the
regular way of operating that business, even if the business
itself is primarily lawful. Id.
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*9 Finally, to allege a RICO conspiracy under 18 U.S.C.
§ 1962(d), a plaintiff must allege “a conspiracy to commit
a substantive RICO violation.” Spool, 520 F.3d at 183
(emphasis added). In particular, “[b]ecause the core of a RICO
civil conspiracy is an agreement to commit predicate acts,
a RICO civil conspiracy complaint, at the very least, must
allege specifically such an agreement.” Hecht v. Commerce
Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990)
(emphasis added). As a result, to properly allege a civil
RICO conspiracy under Section 1962(d), a plaintiff must
allege that the defendant “knew about and agreed to facilitate
the [RICO] scheme.” Salinas v. United States, 522 U.S.
52, 66 (1997). Regarding the facilitation requirement, “a
plaintiff must allege that the conspirator intended to further an
endeavor that, if completed, would satisfy all of the elements
of a substantive” criminal offense; however, it is sufficient
for a plaintiff to allege that the “conspirator adopted the goal
of furthering or facilitating the criminal endeavor.” Chowaiki,
2020 WL 1974228, at *8.
III. ANALYSIS
A. Whether Plaintiffs Have Standing to Pursue Their
Claims
After carefully considering the matter, the Court answers the
question in the negative for the reasons stated in Defendants’
memoranda of law. (Dkt. No. 11, Attach. 3; Dkt. No. 16.)
To those reasons, the Court adds the following analysis,
which is intended to supplement and not supplant Defendants’
reasoning.
To establish Article III standing, a plaintiff must demonstrate
(1) an injury-in-fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that can likely be
redressed by a favorable decision. Mantena v. Johnson, 809
F.3d 731, 731 (2d Cir. 2015). “The plaintiff ... bears the burden
‘clearly to allege facts [in his complaint] demonstrating that
he is a proper party to invoke judicial resolution of the
dispute.’ ” Steinberger v. Lefkowitz, 634 F. App'x 10, 11
(2d Cir. 2015) (quoting Warth v. Seldin, 422 U.S. 490, 518
[1975]). Plaintiffs must also show that they have “prudential
standing,” which includes a “general prohibition on a litigant's
raising another person's legal rights.” Keepers, Inc. v. City of
Milford, 807 F.3d 24, 39 (2d Cir. 2015). The Second Circuit
has recognized that “[a] shareholder–even a sole shareholder–
does not have standing to assert claims alleging wrongs to the
corporation.” Jones v. Niagra Fronteir Transp. Auth. (NFTA),
836 F.2d 731, 736 (S.D.N.Y. 1983), aff'd, 742 F.2d 1440 (2d
Cir. 1983). Rather, the plaintiff must have been injured in
a “personal and individual way” in order to have standing.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992).
RICO standing is more rigorous than Article III standing.
Denny v. Deutsche Bank AG, 443 F.3d 253, 266 (2d Cir. 2006).
To establish standing to bring a civil RICO claim, a plaintiff
must show the following: (1) a violation of Section 1962, (2)
an injury to the plaintiff's business or property, and (3) that the
defendant's violation was the proximate cause of the plaintiff's
injury. Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir. 2003)
(citing Lerner v. Fleet Bank, N.A., 318 F.3d 112, 120-24 [2d
Cir. 2003]). “Proximate cause for RICO purposes ... requires
‘some direct relation between the injury asserted and the
injurious conduct alleged.’ ” Hemi Grp., LLC v. City of New
York, N.Y., 559 U.S. 1, 9 (2010) (quoting Holmes v. Secs.
Investor Protection Corp., 503 U.S. 258, 268 [1992]).
In this case, there are three groups of Plaintiffs: a dairy supply
business (New York Animal and Farm, LLC), a shareholder
of Dean Foods (Susan Poole), and seventeen dairy farmers.
The Court first addresses the question of the standing of
the dairy supply business, New York Animal and Farm,
LLC (“Animal and Farm”). “[A] plaintiff does not have
standing if he suffered an injury that was indirectly (and
hence not proximately) caused by the racketeering activity
or RICO predicate acts....” Baish v. Gallina, 346 F.3d 366,
373 (2d Cir. 2003) (citing Lerner v. Fleet Bank, N.A., 318
F.3d 113, 120-24 [2d Cir. 2003]). Here, Plaintiffs’ Complaint
merely alleges that Plaintiff Animal and Farm's revenue
stream was injured by Defendants’ racketeering activity in
that Defendants indirectly caused Plaintiff Animal and Farm's
injury. (Dkt. No. 1, at ¶ 3.) This allegation, without more,
fails to plausibly suggest a direct relationship between the
injury suffered and the injurious conduct alleged. Plaintiffs’
Complaint also fails to identify which of the seventy-five
Defendants were involved in Plaintiff Animal and Farm's
injury. In short, because Plaintiffs’ Complaint fails to allege
that any of the seventy-five Defendants proximately caused
the injury to Plaintiff Animal and Farm, the Court finds that
Plaintiff Animal and Farm lacks standing to assert a civil
RICO claim.
*10 The Court next addresses the question of the standing
of the shareholder Plaintiff, Susan Poole. For shareholders to
have standing, they must plead facts plausibly suggesting that
the loss of their shares value was “separate and distinct from
the injury sustained by the corporation.” Manson v. Stacescu,
11 F.3d 1127, 1131 (2d Cir. 1993). Although Plaintiff Poole
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argues that she suffered a personal injury through the loss of
share value, she fails to plausibly suggest, let alone mention,
how her loss is different from that of any other shareholder.
Moreover, Plaintiff Poole's argument that “Dean Foods’ price
and asset losses may not themselves be wholly derivative” is
speculative. (Dkt. No. 14, at 8 [emphasis added].) For each
of these two alternative reasons, the Court finds that Plaintiff
Poole lacks standing to assert her civil RICO claim.
Turning to the question of the standing of the dairy-farmer
Plaintiffs, the Court also finds that they have failed to
establish standing. Specifically, they have failed to plead
facts plausibly suggesting that a single Defendant personally
harmed a single dairy-farmer Plaintiff. Plaintiffs’ argument
that there is no requirement to show Defendants personally
harmed them is inaccurate. See Hemi, 559 U.S. at 9)
(“A link [to establish proximate cause] that is too remote,
purely contingent’ or indirec[t] is insufficient.”) (internal
quotation marks omitted); see also Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 102-03 (1998) (explaining
that the “irreducible constitutional minimum of standing”
requires “causation–a fairly traceable connection between
the plaintiff's injury and the complained-of conduct of the
defendant.”)
For these reasons, as well as the reasons stated in Defendants’
memoranda of law, the Court finds that Plaintiffs lack
standing to sue the individual Defendants. In the interest
of thoroughness, however, the Court will continue with its
analysis Defendants’ other arguments for dismissal.
B. Whether Plaintiffs Have Stated a RICO Claim
After carefully considering the matter, the Court answers the
question in the negative for the reasons stated in Defendants’
memoranda of law. (Dkt. No. 11, Attach. 3; Dkt. No. 16.)
To those reasons, the Court adds the following analysis,
which (again) is intended to supplement and not supplant
Defendants’ reasoning.
Taking Defendants arguments out of order, the Court finds
that Plaintiffs’ Complaint fails to satisfy fundamental notice
and pleading requirements under Fed. R. Civ. P. 8 (and Fed.
R. Civ. P. 12[b][6]). Specifically, Plaintiffs’ Complaint fails
to make a single allegation about the alleged conduct of
any one of the seventy-five individual Defendants, and, even
where the Complaint and civil RICO statement does refer to
Defendants, it lumps their conduct together by listing each
Defendant as an “agent,” “manager,” or “board member”
who “performed,” “directed,” or “aided and abetted” a
conspiracy without any differentiation or explanation as to
which “agents,” “managers,” or board members engaged
in each predicate act. (Dkt. No. 11, Attach. 3, at 17-18.)
“Although Fed. R. Civ. P. 8 does not demand that a complaint
be a model of clarity or exhaustively present the facts alleged,
it requires, a minimum, that a complaint give each defendant
‘fair notice of what the plaintiff's claim is and the ground upon
which it rests.’ ” Atauhene v. City of Hartford, 10 F. App'x
33, 34 (2d Cir. 2001) (quoting Ferro v. Ry. Express Agency,
Inc., 296 F.2d 847, 851 [2d Cir. 1961]). “By lumping all the
defendants together in each claim and providing no factual
basis to distinguish their conduct, [Plaintiffs’] complaint
failed to satisfy [Fed. R. Civ. P. 8’s] minimum standard.”
Atauhene, 10 F. App'x at 34. Because Plaintiffs fail to provide
the individual Defendants with any meaningful notice of
the factual basis underlying Plaintiffs’ Complaint, they have
failed to provide Defendants with sufficient notice under Fed.
R. Civ. P. 8.
*11 Alternatively, the Court finds that Plaintiffs’ Complaint
warrants dismissal due to its failure to state a claim under Fed.
R. Civ. P. 12(b)(6). Regarding Plaintiffs’ RICO conspiracy
claim, even though Plaintiffs’ Complaint makes no mention
of an alleged conspiracy, their allegation is first mentioned
in Plaintiffs’ RICO statement. (Dkt. No. 1; Dkt. No. 10.) In
particular, Plaintiffs allege that Defendants participated in a
conspiracy by engaging in “an operational agreement among
the DFA's individual board members and managers to create
and use the fear of personal failure ... to force substantially all
U.S. diary farmers to market their milk through Defendants’
enterprise.” (Dkt. No. 10, at 14.) “Because the core of a
RICO conspiracy is an agreement to commit predicate acts,
a RICO civil conspiracy complaint, at the very least, must
allege specifically such an agreement.” Malvar Egerique,
2020 WL 1974228, at *8 (quoting Hecht, 897 F.2d at 25).
Such a broad-sweeping allegation, without more, woefully
fails to meet the plausibility standard articulated above in
Part II.A. of this Decision and Order. Plaintiffs fail to allege
any factual nature of an alleged operational agreement, the
particular Defendants who participated in the planning of
individual predicate acts, or any particular facts such as dates,
times, or locations of meetings where such an agreement
was discussed. Accordingly, the Court finds that Plaintiffs
have failed to plead facts sufficiently alleging that Defendants
engaged in a civil RICO conspiracy.
Turning to Plaintiffs’ RICO claim, the Court also finds
that Plaintiffs’ Complaint fails to allege a substantive RICO
violation for the reasons stated in Defendants’ memoranda
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of law. (Dkt. No. 11, Attach. 23-30; Dkt. No. 16, at 10-13.)
For example, the Court finds that Defendants’ alleged conduct
amounted to lawful hard-bargaining due to the fact that
Plaintiffs did not have any “preexisting right” or entitlement
to do business with the DFA. For this reason, as well as
the reasons raised in Defendants’ memoranda of law, the
Court finds that Plaintiffs have failed to plead facts plausibly
suggesting Defendants committed a civil RICO violation.
C. Whether the Court Lacks Personal Jurisdiction
over Defendants
After carefully considering the matter, the Court answers the
question in the negative for the reasons stated in Defendants’
memoranda of law. (Dkt. No. 11, Attach. 3; Dkt. No. 16.)
To those reasons, the Court adds the following analysis,
which (again) is intended to supplement and not supplant
Defendants’ reasoning.
Section “1965(a) grants personal jurisdiction over an initial
defendant in a civil RICO case to the district court for the
district in which that person resides, has an agent, or transacts
his or her affairs.” PT United Can Co. Ltd. v. Crown Cork
& Seal Co., Inc., 138 F.3d 65, 71 (2d Cir. 1998). “In other
words, a civil RICO action can only be brought in a district
court where personal jurisdiction based on minimum contacts
is established as to at least one defendant.” PT United Can Co.
Ltd., 138 F.3d at 71. Section “1965(b) provides for nationwide
service and jurisdiction over ‘other parties’ not residing in the
district, who may be additional defendants of any kind ....” Id.
Jurisdiction is not automatically conferred on the additional
defendants; a plaintiff must show that the “ends of justice
so require.” Id. To satisfy the “ends of justice” standard, a
plaintiff must show that the RICO claim “could not otherwise
be tried in a single action because no district court could
exercise personal jurisdiction over all of the defendants.”
Elsevier Inc. v. W.H.P.R., Inc., 692 F. Supp. 2d 297, 315
(S.D.N.Y. 2010) (collecting cases).
As Defendants argue, Plaintiffs’ Complaint fails to allege that
a specific Defendant resides in, is found in, has an agent
in, or transacts his or her affairs in the Northern District of
New York. (Dkt. No. 11, Attach. 3, at 32.) Although Plaintiffs
argue that Defendants, acting as corporate agents, are subject
to the Northern District's personal jurisdiction because their
actions were outside of the DFA's ordinary activities, the
Court disagrees. In particular, Plaintiffs’ Complaint fails to
allege any facts plausibly suggesting that a single Defendant
conducted business within the Northern District of New York.
Plaintiffs also conspicuously chose to not name the DFA as a
Defendant in this action. In any event, the fact that the DFA
contracted business within the Northern District of New York,
by itself, fails to support Plaintiffs’ allegations that any of the
individual Defendants were involved in business transactions
that were separate from the DFA's ordinary activities within
this district.
D. Whether Plaintiffs Violated Local Rule 9.2
*12 After carefully considering the matter, the Court
answers the question in the negative for the reasons stated
in Defendants’ memoranda of law. (Dkt. No. 11, Attach. 3;
Dkt. No. 16.) To those reasons, the Court adds the following
analysis, which (again) is intended to supplement and not
supplant Defendants’ reasoning.
Local Rule 9.2 requires a party asserting a claim under RICO
to “file a RICO statement within thirty (30) days of the filing
of the pleading containing such claim.” N.D.N.Y. L.R. 9.2.
Because Plaintiffs filed their Complaint on June 22, 2020
(Dkt. No. 1), they were required to file their RICO statement
by July 22, 2020; instead, Plaintiffs filed their RICO statement
on September 3, 2020. (Dkt. No. 10.) On this ground alone,
the Court can dismiss Plaintiffs’ Complaint. See Spoto v.
Herkimery Cnty. Trust, 99-CV-1476, 2000 WL 533293, at
*3 n.3 (N.D.N.Y. Apr. 27, 2000) (Munson, J.) (“Indeed,
the Court would be justified to dismiss Plaintiff's complaint
based upon their very untimely filing of their Local Rule
9.2 RIC Statement.”); Dicob v. Knuckles, 07-CV-1044, 2007
WL 3353089, at *1 (N.D.N.Y. Nov. 7, 2007) (McAvoy, J.)
(extending the deadline only 20 days for a pro se litigant);
cf. Pierce v. Homecomings Fin. LLC, 17-CV-0882, 2017 WL
5991750, at *2 n.2 (N.D.N.Y. Dec. 4, 2017) (Sannes, J.)
(noting that Plaintiff had failed to file a Civil RICO Statement
pursuant to Local Rule 9.2, and explaining that “Plaintiff's
RICO claim may be dismissed for this reason alone”); Amaker
v. Kelley, 01-CV-0877, 2009 WL 385413, at *11 (N.D.N.Y.
Feb. 9, 2009) (Scullin, J.) (explaining that the failure to file
a RICO Statement provides a threshold for dismissal of a
plaintiff's RICO claim). Despite Plaintiffs’ arguments that
their failure to abide by Local Rule 9.2 is moot and both
parties were working in good faith on other aspects of the
case, Plaintiffs’ arguments defy logic for two reasons.
First, Defendants’ argument that Plaintiffs’ RICO statement
is not helpful to Plaintiffs’ claims has no bearing on the
“mootness” of Plaintiffs’ failure to abide by the Local Rules.
Second, regardless of Plaintiffs’ good-faith work on other
aspects of this case, they still needed to but failed to abide by a
Local Rule, and further needed to but failed to seek the Court's
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permission to file their RICO statement approximately six
weeks late (or provide any explanation for failing to do so).
Accordingly, the Court also dismisses Plaintiffs’ Complaint
for failure to abide by Local Rule 9.2.
E. Nature of Dismissal
Finally, some discussion is appropriate regarding the nature
of the dismissal in this action. Ordinarily, “[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) (citations omitted). 6 “[A]n opportunity to amend
is not required where the defects in the plaintiff's claims
are substantive rather than merely formal, such that any
amendment would be futile.” Sorrentino v. Barr Labs. Inc.,
09-CV-0591, 2010 WL 2026135, at *5 (May 20, 2010
N.D.N.Y.) (Suddaby, C.J.).
*13 Here, because the Court's threshold ground for dismissal
was Plaintiffs’ lack of standing, the Court must first determine
whether that dismissal was pursuant to Fed. R. Civ. P. 12(b)
(6) (which would permit a dismissal with prejudice) or Fed.
R. Civ. P. 12(b)(1) (which would not permit a dismissal
with prejudice). After carefully considering the matter, the
Court finds that the dismissal was pursuant to Fed. R.
Civ. P. 12(b)(6) for two reasons: (1) the determination was
based on the allegations contained within the four corners of
Plaintiffs’ Complaint and not based on findings of fact derived
from documents outside of the four corners of Plaintiffs’
Complaint; and (2) the determination addressed the question
whether the Court could grant relief to a party in Plaintiffs’
(alleged) position, not whether the Court could grant relief to
any plaintiff given the claim asserted. Rent Stabilization Ass'n
of City of New York v. Dinkins, 5 F.3d 591, 594 & n.2 (2d Cir.
1993).
Having rendered that determination, the Court next must
consider whether it appears that better pleading would cure
the defects. The Complaint was 17 pages long, and it
was effectively amended by the Civil RICO Statement and
attachments (which were approximately 82 pages long).
See, supra, note 1 of this Decision and Order. Despite
the breadth and detail of facts alleged in those documents,
the documents were conspicuously absent of either factual
allegations establishing standing (the threshold ground for
dismissal) or factual allegations plausibly suggesting a claim
upon which relief can be granted (an alternative ground for
dismissal). For these reasons, the Court finds that the defects
in the Complaint are substantive and not merely formal, and
that it does not appear that better pleading would cure these
defects.
F. Whether Defendants Are Entitled to Sanctions
After carefully considering the matter, the Court answers this
question in the negative for the reasons set forth below.
The Court begins its analysis by noting that the one of
Defendants’ arguments in support of sanctions essentially
repeats their arguments in support of their motion to dismiss.
(Dkt. No. 15, Attach. 6, at 14-23.) Instead of repeating itself,
the Court relies on its analysis in Part III.B. of this Decision
and Order to conclude that Plaintiffs’ Complaint has a basis
in law and fact, and it did not present frivolous arguments
unsupported by law or factual contentions lacking evidentiary
support. See Fed. R. Civ. P. 11(b) (indicating that sanctionable
conduct includes [1] presenting a paper for an improper
purpose, [2] presenting frivolous arguments unsupported by
law, [3] presenting factual contentions lacking evidentiary
support, and [4] denying factual contentions where denial is
not warranted on the evidence). Therefore, the Court rejects
Defendants’ first argument.
The Court also rejects Defendants’ argument that Plaintiffs’
Complaint was filed for an improper purpose. “In the Rule
12(b)(6) context, a court may take judicial notice of prior
pleadings, orders, judgments, and other related documents
that appear in the court records of prior litigation and that
relate to the case sub judice.” Jianjun Lou v. Trutex, Inc.,
872 F. Supp. 2d 344, 350 n.6 (S.D.N.Y. 2012); see also
Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking
judicial notice of a pleading in another lawsuit). “The Court
may take judicial notice of a document filed in another court
to establish the fact of such litigation and related filings,
but not for the truth of the matters asserted in the other
litigation.” Malvar Egerique, 2020 WL 1974228, at *7 (citing
Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d
150, 157 [2d Cir. 2006]). The Court takes judicial notice of
Plaintiffs’ Counsel's prior history with the DFA, as detailed
in Defendants’ memorandum of law. (Dkt. No. 15, Attach.
6, at 11-12.) Although Plaintiffs’ Counsel's prior conduct
and history with the DFA and Defendants presents a close
call, the Court is unable to grant sanctions to Defendants.
Plaintiffs’ Complaint, although deficient, raised legal and
factually challengeable assertions, albeit barely. Plaintiffs and
their counsel appear to have filed the current action in good
faith on behalf of individual Plaintiffs, and not to harass the
DFA and Defendants.
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*14 For these reasons, the Court denies Defendants’ motion
for sanctions.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 11)
is GRANTED; and it is further
ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is
DISMISSED with prejudice; and it is further
ORDERED that Defendants’ motion for sanctions (Dkt. No.
15) is DENIED.
All Citations
Not Reported in Fed. Supp., 2021 WL 3737780, RICO
Bus.Disp.Guide 13,545
Footnotes
1 The Court notes that, pursuant to Local Rule 9.2 of the District's Local Rules of Practice, a Civil RICO
Statement shall be construed as an amendment to the pleadings.
2 Because Plaintiffs’ RICO Statement contains substantially the same allegations as their Complaint, the Court
will cite Plaintiffs’ Complaint only.
3 According to Plaintiffs, DMS ceased operations in 2017. (Dkt. No. 1, at 46.)
4 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768,
1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16
(N.D.N.Y.1995) (McAvoy, C.J.).
5 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d. Cir. 2011) (explaining that
conversion from a motion to dismiss for failure to state a claim to a motion for summary judgment is not
necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents
attached to the complaint or answer, [2] documents incorporated by reference in the complaint (and provided
by the parties), [3] documents that, although not incorporated by reference, are “integral” to the complaint, or
[4] any matter of which the court can take judicial notice for the factual background of the case); DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering a dismissal
pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by reference in the complaint.... Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies heavily upon its
terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even if a document
is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or
accuracy of the document. It must also be clear that there exist no material disputed issues of fact regarding
the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to
it as an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation marks and
citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam)
(“[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon
which it solely relies and which is integral to the complaint,” the court may nevertheless take the document
into consideration in deciding [a] defendant's motion to dismiss, without converting the proceeding to one for
summary judgment.”) (internal quotation marks and citation omitted).
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6 Accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) (“[T]he
court need not grant leave to amend where it appears that amendment would prove to be unproductive or
futile.”) (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (finding that denial was not an
abuse of discretion where an amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (“The problem with Cuoco's causes of action is substantive; better pleading will not cure it. Repleading
would thus be futile. Such a futile request to replead should be denied.”) (citation omitted); 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.”) (citation omitted);
Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (“[W]here ... there is no merit in the proposed
amendments, leave to amend should be denied”).
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Spoto v. Herkimer County Trust, Not Reported in F.Supp.2d (2000)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2000 WL 533293
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Alan T. SPOTO and Sandra A. Spoto, Plaintiffs,
v.
HERKIMER COUNTY TRUST, Groupinsure Brokerage
Holdings, Inc., Bill Burrows, individually, as CEO
of Herkimer County Trust, as Chairman of Herkimer
County Trust's Board of Directors and as a member
of Groupinsure Brokerage Holdings, Inc.'s Board of
Directors, Laura B. Marcantonio, individually, as
President of Herkimer County Trust, as member of the
Herkimer County Trust's Board of Directors, as CEO of
Groupinsure Brokerage Holdings, Inc. and as Chairman
of Groupinsure Brokerage Holdings, Inc.'s Board of
Directors, Stanley K. Dickson, individually, as CFO of
Herkimer County Trust and as member of Groupinsure
Brokerage Holding, Inc.'s Board of Directors, Peter
Bickford, individually, and as partner of Werner &
Kennedy, Werner & Kennedy, John T. Buckley, as
partner of Werner & Kennedy, Charles E. Chromow,
as partner of Werner & Kennedy, Robert K. Fulton, as
partner of Werner & Kennedy, Michael A. Knoerzer, as
partner of Werner & Kennedy, John M. Nonna, as partner
of Werner & Kennedy, Larry P. Schiffer, as partner of
Werner & Kennedy, Francine Levitt Semaya, as partner
of Werner & Kennedy, Donald L. Sharpe, as partner of
Werner & Kennedy, Richard T. Kennedy, individually
and as Managing Partner of Werner & Kennedy,
Stanley Smith, individually and as President of the
Manhattan Group, and the Manhattan Group, Defendants.
No. 99–CV–1476.
|
April 27, 2000.
Attorneys and Law Firms
Brindisi, Murad & Brindsisi–Pearlman, LLP, Utica, New
York, for Plaintiffs, Louis T. Brindisi, of counsel.
Hancock & Estabrook, LLP, Mony Tower I, Syracuse, New
York, for Herkimer Defendants, Walter Meagher, Jr., Eric C.
Nordby, of counsel.
Bond, Schoeneck & King, LLP, Syracuse, New York, for
Werner Defendants, Thomas D. Keleher, Brian J. Butler, of
counsel.
MEMORANDUM–DECISION and ORDER
MUNSON, Senior J.
*1 Currently before the Court are three motions. Both the
Herkimer defendants and the Werner defendants move for
judgment on the pleadings as to plaintiffs' federal claims,
which plaintiffs oppose. 1 Plaintiffs, in turn, move to amend
their complaint, which defendants oppose. For the reasons
that follow, the Court grants defendants motions, denies
plaintiffs' motion to amend as futile, and declines to exercise
supplemental jurisdiction over plaintiffs' state law claims.
BACKGROUND
Plaintiffs' instant action is a superlative example of why some
legal minds posit that the civil provisions of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. §§ 1961–1968, et seq., are the most misused statutes
in the federal corpus of law.
For the purposes of deciding defendants' motions, the
following allegations are assumed to be true. Plaintiff Alan
T. Spoto was a shareholder in Friedlander, Spoto, Miller
and Maloff Agency, Inc. (“FSM & M”), an insurance
agency in Utica, New York. During 1995 or 1996, defendant
Laura B. Marcantonio, President of HCT, approached Spoto
“concerning the bank's interest in the insurance industry to
increase its profit margin.” Compl. ¶ 17. Commencing “in or
about 1997,” HCT and Spoto “entered into discussions and
negotiations for the purchase of the FSM & M Agency and
the establishment of a new corporation, GROUPINSURE,
for the purchase and sale of insurance products through
the GROUPadvantage franchises .” Id. ¶ 23. Spoto alleges
that to induce him to sell his share in FSM & M, he
was promised employment with HCT and, after the new
corporation was formed, he would become President and
Chief Operating Officer of GROUPinsure. Spoto was to own
a forty-nine percent interest of the newly-formed enterprise
and have full authority over its day-to-day operation, without
interference from HCT. Spoto also was to have his interest in
the new venture protected by a shareholder and employment
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agreement, and would be paid $12,500 per month. Id. ¶ 24.
Defendant Bill Burrows, who wanted to establish HCT in the
insurance industry, “assured [Spoto] that he would become
very wealthy and successful in the future if he consummated
this deal with the bank.” Id. ¶ 25.
In 1998, plaintiffs explain, defendants Stanley Smith, TMG
Peter Bickford and Werner were retained to assist in
establishing the new corporation. In February 1999, Smith
and TMG appraised FSM & M. The appraisal represented
a sum “far lower” than Spoto had anticipated—a valuation
between $685,000 and $985,000. Id. ¶ 34. Following the
valuation, HCT bought FSM & M for $425,000. Id. ¶
36. Further negotiations ensued. After “many days,” Spoto
received a twenty percent interest in the newly-formed
GROUPinsure, as well as the right to purchase an additional
twenty percent share. As promised, he was named President
and Chief Operating Officer of the corporation and given a
five-year employment contract. Id. ¶¶ 37–39.
*2 Apparently, all was not rosy. Despite assurances that
he would be able to manage GROUPinsure as he saw
fit, Marcantonio—who “continually and publicly harassed
and ridiculed” Spoto—interfered with his operation of the
company. Id. ¶¶ 39–40. Eventually, following a period of
further harassment, GROUPinsure terminated Spoto on July
23, 1999. On account of his termination, Spoto's option to buy
an additional twenty percent of GROUPinsure expired. Id. ¶¶
45–46.
Ostensibly, these facts might lead one to conclude that the
issue before the Court is an ordinary breach of contract
or fraud claim. Indeed, plaintiffs raise several common
law causes of action, including fraud and breach of
contract; however, by plaintiffs' estimation, the remedy most
appropriate to redress defendants' alleged malfeasance is
RICO, the statute Congress enacted to eradicate organized
criminal racketeering activity.
Plaintiffs theorize that the aforementioned actions,
perpetrated through fairly unspecific acts of mail and wire
fraud, amount to “a fraudulent scheme and conspiracy
for the purposes of defrauding [Spoto] of his experience,
knowledge and stature in the insurance industry, and his
ownership interest in [FSM & M].” Plfs' Mem. of Law at
1. Defendants deny these accusations and catalog a host
of fatal deficiencies with plaintiffs' RICO claims: failure to
plead a pattern of racketeering activities; failure to plead two
predicate acts; failure to plead a conspiracy; failure to plead
a RICO enterprise; failure to plead an investment injury;
and failure to comply with Local Rule 9.2 of this district,
which unequivocally requires a RICO statement to be filed
within thirty days from the filing of the complaint. Defendants
further insist that plaintiffs' proposed amended complaint
suffers from the same defects. Accordingly, defendants ask
the Court to dismiss the instant RICO claims, deny plaintiffs'
motion to amend, and remand the remaining common law
claims to state court.
DISCUSSION
I. Standard for Judgment on Pleadings
The standard for deciding a motion pursuant to Rule 12(c) is
the same as the one applicable to a motion to dismiss under
Rule 12(b)(6). See Irish Lesbian and Gay Org. v. Giuliani,
143 F.3d 638, 644 (2d Cir.1998). “Under that test, a court must
accept the allegations contained in the complaint as true, and
draw all reasonable inferences in favor of the non-movant.”
Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). A court
“should not dismiss the complaint unless it appears beyond
doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Id. (internal
quotation marks omitted). In making this determination, the
Court also may consider exhibits attached to the complaint or
documents incorporated into the complaint by reference. See
Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991).
II. Lack of Service on the Werner Defendants
*3 The Werner defendants complain that defendants
Kennedy, Knoerzer, Fulton and Buckley have not been served
with summons and complaint in this matter. Aff. of Thomas
D. Keleher, Esq. ¶ 28. Accordingly, they ask the Court to
dismiss the complaint as to those defendants pursuant to Rules
12(b)(1) and (5). As plaintiffs do not contend otherwise, the
Court grants defendants' instant motion.
III. RICO and its Requirements
As may be commonly known, RICO makes it a crime
“to conduct” an “enterprise's affairs through a pattern
of racketeering activity.” 18 U.S.C. § 1962(c); see also
McLaughlin v. Anderson, 962 F.2d 187, 190 (2d Cir.1992).
RICO, however, also contains a civil provision permitting
“[a]ny person injured in his business or property by reason
of a violation” of its criminal components to recover treble
damages and attorney's fees. 18 U.S.C. § 1964(c).
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Plaintiffs' complaint alleges civil RICO violations under
§§ 1962(a), (c) and (d), while his proposed amended adds
a claim under § 1962(b). Section 1962 prohibits, under
subsections (a) through (d), the following: (a) the use of
income “derived ... from a pattern of racketeering activity”
to acquire an interest in, establish, or operate an enterprise
engaged in or whose activities affect interstate commerce;
(b) the acquisition of any interest in or control of such an
enterprise “through a pattern or racketeering activity”; (c) the
conduct or participation in the conduct of such an enterprise's
affairs “through a pattern of racketeering activity”; and (d)
conspiring to do any of the above. 18 U.S.C. SS 1962(a)—(d);
see also GICC Capital Corp. v. Technology Finance Group,
Inc., 67 F.3d 463, 465 (2d Cir.1995), cert. denied, 518 U.S.
1017, 116 S.Ct. 2547, 135 L.Ed.2d 1067 (1996).
To state a viable claim for damages under the act, plaintiffs
must allege that defendants violated the substantive RICO
statute, 18 U.S.C. § 1962. In so doing, they must claim
the existence of seven constituent elements: (1) that the
defendants (2) through the commission of two or more acts
(3) constituting a “pattern” (4) of “racketeering activity” (5)
directly or indirectly invests in, or maintains an interest in,
or participates in (6) an “enterprise” (7) the activities of
which affect interstate or foreign commerce. See Pinnacle
Consultants v. Leucadia Nat'l Corp., 101 F.3d 900, 904 (2d
Cir.1996).
The Court agrees with defendants that plaintiffs' complaint,
as well as their proposed amended complaint, suffers from
a variety of defects, any one of which dooms their RICO
cause of action. Here the court focuses on two: lack of
continuity and failure to plead mail fraud predicate acts with
specificity. 2
To demonstrate a pattern of racketeering activity, “a plaintiff
must plead at least two predicate acts, show that the acts are
related and that they amount to, or pose a threat of, continuing
criminal activity.” H.J. Inc. v. Northwestern Bell Telephone
Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d
195 (1989). RICO targets “racketeering activity,” which the
statute generally defines as certain acts indictable under
Federal law, including mail and wire fraud, and violations of
the Hobbs Act. 18 U.S.C. § 1961(1)(B).
*4 A “pattern” requires at least two acts of “racketeering
activity,” occurring within ten years of each other. See 18
U.S .C. § 1961(5). Again, those predicate acts must be crimes
under state or federal law. See United States v. Angelilli,
660 F.2d 23 (2d Cir.1981), cert. denied, 455 U.S. 910, 102
S.Ct. 1258, 71 L.Ed.2d 449, rehearing denied, 456 U.S. 939,
102 S.Ct. 1998, 72 L.Ed.2d 460 (1982); Mathon v. Marine
Midland Bank, N.A., 875 F.Supp. 986, 995 (E.D.N.Y.1995).
Both the Supreme Court and Second Circuit have held that
an allegation of two acts of “racketeering activity,” without
more, is not sufficient to establish a pattern. See H.J. Inc., 492
U.S. at 238–44, 109 S.Ct. at 2893; United States v. Indelicato,
865 F.2d 1370, 1381 (2d Cir.) (en banc), cert. denied, 493
U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989). Moreover, and
importantly, to constitute a “pattern” of racketeering activity,
the predicate acts must be related and constitute a threat of
continued racketeering activity and this determination is to
be made on a case-by-case basis. H.J. Inc., 492 U.S. at 238–
44, 109 S.Ct. 2893; see also United States v. Alkins, 925 F.2d
541, 551 (2d Cir.1991) (predicate acts must be related and
amount to or pose a threat of continued criminal activity).
In addressing what constitutes a “pattern” of racketeering
activity the Second Circuit noted that “[a]n interrelationship
between acts, suggesting the existence of a pattern, may
be established ... [by] proof of their temporal proximity,
or common goals, or similarity of methods, or repetitions.”
Indelicato, 865 F.2d at 1382.
Moreover, plaintiffs must allege “continuity” as a prerequisite
for the existence of a “pattern of racketeering activity.” H.J.
Inc., 492 U.S. at 230. In other words, the predicate acts must
be related, and must constitute or threaten long-term criminal
activity. See Id. Such continuity can be either “closed” or
“open-ended.” Id. Closed-ended continuity is established by
proving a series of related predicate acts extending over
a substantial period of time, while open-ended continuity
requires the threat of long-term racketeering activity. See Id. A
threat is indicated when the predicate acts themselves involve
a distinct threat of future racketeering activity, are part of the
regular way of doing business for an ongoing entity (be it a
criminal association or legitimate business), or are a regular
means of conducting or participating in an ongoing RICO
enterprise. See Id.
Plaintiffs allegations clearly do not constitute a open-ended
continuity; rather, if they allege any kind of continuity, they
suggest a closed-ended continuity. Ordinarily, courts will
not find a threat of future racketeering in “cases concerning
alleged racketeering activity in furtherance of endeavors that
are not inherently unlawful, such as frauds in the sale of
property.” United States v. Aulicino, 44 F.3d 1102, 1111
(2d Cir.1995). Here, defendants' alleged wrongdoing is not
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“inherently unlawful.” Rather, their wrongdoing sounds more
in the nature of fraud, as is evidenced by plaintiffs' alternate
state law cause of action brought under that theory. See
Compl. ¶¶ 105–11. For this reason alone, their RICO cause
of actions fail. Yet, their RICO claim clearly is defective for
at least one other reason: their allegations of mail and wire
fraud are too vague.
*5 Both the plaintiffs' complaint and proposed amended
complaint allege that the predicate acts in support of the RICO
claim are the defendants violations of the mail and wire fraud
statutes. That statute, in relevant part, provides that a person
is guilty of mail fraud if:
having devised or intending to devise
any scheme or artifice to defraud, or
for obtaining money or property by
means of false or fraudulent pretenses,
representations, or promises ... for the
purpose of executing such scheme or
artifice or attempting so to do, [the
person] places in any post office or
authorized depository for mail matter,
any matter or thing whatever to be sent
or delivered by the Postal Service.
18 U.S.C. § 1341.
The crux of mail fraud and wire fraud is “an intent to defraud.”
United States v. Bouyea, 152 F.3d 192, 194 (2d Cir.1998); U.S.
v. Gabriel, 125 F.3d 89, 96 (2d Cir.1997) (holding same). To
establish an intent to defraud, the plaintiffs must adequately
allege that the “defendants contemplated some actual harm
or injury to their victims. Only a showing of intended harm
will satisfy the element of fraudulent intent.” United States
v. Dinome, 86 F.3d 277, 283 (2d Cir.1996) (mail fraud and
wire fraud) (quoting United States v. Starr, 816 F.2d 94, 98
(2d Cir.1987)); see also In re Registry Publishing, 68 F.3d at
580 (“In order to establish that the defendant acted with an
intent to defraud, the Government must show that some actual
harm or injury was contemplated by the schemer.”) (internal
quotation marks omitted); United States v. D'Amato, 39 F.3d
1249, 1257 (2d Cir.1994).
Similarly, the wire fraud statute requires a scheme devised “to
defraud, or for obtaining money or property by means of false
or fraudulent pretenses, or promises,” and the use of interstate
wires or communications to execute the scheme. 18 U.S.C.
§§ 1341, 1343.
Herein lies the problem for plaintiffs: in their attempt to
dress a common law breach of contract or fraud claim as a
RICO claim, their allegations of mail fraud are conclusory
and extraordinarily vague, which makes it impossible for
them to demonstrate the required “pattern” of racketeering.
Defendants correctly note that these underlying counts of mail
and wire fraud must be pled with the particularity required by
Rule 9(b) of the Federal Rules of Civil Procedure, e.g., Rule
9(b) requires that in all averments of fraud, “the circumstances
constituting fraud ... shall be stated with particularity.”
Fed.R.Civ.P. 9(b). This heightened pleading requirement is
in place for three reasons: (1) to provide defendants notice
to enable them to prepare proper defenses; (2) to protect
defendants against harm to their reputation or goodwill; and
(3) to deter strike suits. See DiVittorio v. Equidyne Extractive
Indus. Inc., 822 F.2d 1242, 1247 (2d Cir.1987).
Rule 9(b) requires plaintiffs to go on the record as to the
specific nature of the fraud, Carlucci v. Owens–Corning
Fiberglas Corp., 646 F.Supp. 1486, 1489 (E.D.N.Y.1986),
and therefore to fulfill Rule 9(b)'s particularity requirements,
plaintiffs' complaint must specify the time, place, speaker,
and content of the alleged misrepresentation. DiVittorio, 822
F.2d at 1247 (citing Luce v. Edelstein, 802 F.2d 49, 52
(2d Cir.1986)). Certainly, in pleading a defendant's state of
mind, Rule 9(b) provides that “[m]alice, intent, knowledge
and other condition of mind of a person may be averred
generally.” Fed.R.Civ.P. 9(b). Yet, this relaxation of Rule
9(b)'s particularity requirement is not a “license to base claims
of fraud on speculation and conclusory allegations.” Acito v.
Imcera Group, Inc., 47 F.3d 47, 52 (2d Cir.1995). Scienter
may be averred generally, but “plaintiffs are still required to
plead the factual basis which gives rise to a strong inference of
fraudulent intent.” Fischer v. Tynan, No. 90 Civ. 7587, 1993
WL 213025 at * 2 (S.D.N.Y. Jun. 16, 1993) (citation omitted).
*6 Construing both the complaint and proposed amended
complaint generously and drawing all inferences in favor of
the pleader, as the Court must do under Rule 9(b), see Cosmas
v. Hassett, 886 F.2d 8, 11 (2d Cir.1989), the Court finds
plaintiffs have failed completely to plead fraudulent intent and
the content of the alleged misrepresentation with sufficient
particularity. Plaintiffs, for example, aver mail and wire fraud
—the sole predicate acts that are the basis for their claim
—without ever delineating the who, what, why, where and
when. 3 Accordingly, plaintiffs' RICO claims are dismissed
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in their entirety because they have not pled mail fraud with
specificity. Moreover, as their proposed amended complaint
fails in this respect as well, it would be futile to allow the
amendment, therefore plaintiffs' cross-motion to amend is
denied. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227, 9 L.Ed .2d 222 (1962) (describing reasons for denying
leave to amend). Finally, having dismissed plaintiffs' civil
RICO claims, the Court declines to exercise supplemental
jurisdiction over Plaintiffs' numerous claims under New York
state law. See 18 U.S.C. § 1367(c)(3).
CONCLUSION
Wherefore, based upon the foregoing, the Court GRANTS
the Werner defendants' motion to dismiss against defendants
Kennedy, Knoerzer, Fulton and Buckley pursuant to Rules
12(b)(1) and (5); GRANTS the Herkimer defendants' motion
for judgment on the pleadings as to plaintiffs' RICO claims
against them; GRANTS the Werner defendants' motion for
judgment on the pleadings as to plaintiffs' RICO claims
against those defendants of the Werner group who received
proper service; DENIES plaintiffs' cross-motion to amend
their complaint; and DECLINES to exercise supplemental
jurisdiction over plaintiffs' claims raised pursuant to New
York state law.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2000 WL 533293
Footnotes
1 For brevity's sake, the Court refers to defendants as two groups: the Herkimer defendants and the Werner
defendants. The Herkimer group consists of the Herkimer County Trust (“HCT”); GROUPinsure Brokerage
Holdings, Inc. (“GROUPinsure”); Bill Burrows; Laura B. Marcantonio; Stanley K. Dickson; Stanley Smith; and
The Manhattan Group (“TMG”). The remaining defendants comprise the Werner group, who are Werner &
Kennedy (“Werner”), John T. Buckley, Charles E. Chromow, Robert K. Fulton, Michael A. Knoerzer, John
N. Nonna, Larry P. Schiffer, Francine Levitt Semaya, and Richard T. Kennedy. Donald L. Sharpe, who had
been part of the Werner defendants, was dismissed from this action on January 14, 2000.
2 Indeed, the Court would be justified to dismiss plaintiffs' complaint based upon their very untimely filing of
their Local Rule 9.2 RICO statement. See Gagliardi v. Ward, 967 F.Supp. 67, 69 (N.D.N.Y.1997).
3 Paragraphs 71 to 76 of plaintiffs' complaint “detail” the alleged mail and wire fraud. Those paragraphs reciting
the mail fraud, for example, read as follows:
71. The individual and corporate Defendants for the purpose of executing the scheme and artifice to
defraud the Plaintiff of the amount due and owing to him under the agreement and sale of the FSM & M
AGENCY and transfer of the GROUPadvantage franchises included, without limitation, the following:
a. The mailing of documents from the individual and corporate Defendants to the Plaintiff.
b. The mailing of correspondence and other documents by Defendants, GROUPINSURE, HERKIMER
COUNTY TRUST, BILL BURROWS, LAURA MARCANTONIO, STAN DICKSON, STAN SMITH, THE
MANHATTAN GROUP, PETER BICKFORD and WERNER & KENNEDY, to and from each other.
72. The use of the mail on each and every occasion in furtherance of the Defendants' and the other
individuals (sic) scheme and conspiracy and artifice to defraud the Plaintiff constitutes a separate offense.
...
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76. The use of the mails and wires for the purposes of effectuating the aforesaid scheme to defraud
the Plaintiff, which occurred on more than one occasion in the last ten years, constitutes a pattern of
racketeering activity in violation of 18 USCS § 1962, for which treble damages, costs of suit and attorneys'
fees may be sought under 18 USCS § 1964(c).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2026 WL 392345
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
TIMMY WALLACE, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
22 Civ. 3414 (GBD) (JW)
|
Filed 02/12/2026
Attorneys and Law Firms
Timmy Wallace, Bruceton Mills, WV, Pro Se.
Christine Colalillo, Jesse N. Zilinski, New York City Law
Department, New York, NY, for Defendants Haskovic Harris,
Michael Monahan, Alejandro Azcona.
Christine Colalillo, Jesse N. Zilinski, Joseph Peter Zangrilli,
New York City Law Department, New York, NY, for
Defendants David Alston, CITY OF NEW YORK.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS United States District Judge
*1 Pro se plaintiff Timmy Wallace (“Plaintiff”) brings this
action for false arrest and malicious prosecution pursuant
to 42 U.S.C. § 1983 against defendants the City of New
York and police officers Harris Haskovic, Michael Monahan,
Alejandro Azcona, David Alston, and Christopher Beckett
(collectively, “Defendants”). On September 19, 2022, the
case was referred to Magistrate Judge Jennifer E. Willis
for pretrial management and dispositive motions. (ECF No.
19.) On April 10, 2023, Defendants collectively moved for
judgment on the pleadings. (Mot. for J. on Pleadings (the
“Motion”), ECF No. 46.) Before this Court is Magistrate
Judge Willis's Report and Recommendation (the “Report”)
recommending that Defendants’ motion for judgment on the
pleadings be granted. Upon a careful review of the Report and
the underlying record, this Court adopts the Report in full and
dismisses this case. (R & R, ECF No. 78.)
I. FACTUAL BACKGROUND 1
This case stems from Plaintiff's May 25, 2015, arrest for
violating New York Penal law § 170.70, illegal possession of
a vehicle identification number (“VIN”). See U.S. v. Wallace,
15 Cr. 794 (KBF), 2016 WL 4367961, at *1 (S.D.N.Y. Aug.
11, 2016). On that date, NYPD officers pulled over Plaintiff's
car for a defective taillight. (Third Am. Compl. (“TAC”),
ECF No. 54, at 4.) Upon opening the driver-side door, the
arresting officers discovered that Plaintiff's vehicle did not
have a VIN label affixed to the door, as required by New York
law. 2 (Second Am. Compl. (“SAC”), ECF No. 26, at 4–5.)
Suspecting that the vehicle was stolen, the officers arrested
Plaintiff and his vehicle was impounded. See Wallace, 2016
WL 4367961, at *3–5. 3
During the inventory search of Plaintiff's vehicle, NYPD
officers found a gun stashed under the hood of Plaintiff's car.
See id. at *6. State prosecutors subsequently dismissed the §
170.70 charges and indicted Plaintiff for criminal possession
of a weapon. (Compl., ECF No. 2, at 12–15.) On or about
August 28, 2015, the state weapons possession charge was
dismissed in lieu of a federal felon-in-possession charge
pursuant to the Armed Career Criminal Act, 18 U.S.C. §§
922(g), 924(e)(1), 924(2)(A). (Order to Amend, ECF No. 11,
at 4.) In 2017, Plaintiff was convicted in federal court of
unlawful possession of a weapon and sentenced to fifteen
years in prison. See United States v. Wallace, 937 F.3d 130,
136–37 (2d Cir. 2019) (denying Plaintiff's appeal of his
conviction).
*2 On April 25, 2022, Plaintiff brought this action, alleging
false arrest and malicious prosecution pursuant to 42 U.S.C.
§ 1983. (Compl. at 6.) On April 10, 2023, Defendants filed
this motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). (Motion.) On June 20, 2023,
Plaintiff filed a third amended complaint—the operative
complaint before this Court. (TAC.) On July 6, 2023, Plaintiff
filed an opposition to the motion, (Pl. Opp., ECF No. 58,)
to which Defendants replied on July 24, 2023, (Defs. Reply,
ECF No. 62.)
On February 13, 2024, Magistrate Judge Willis issued her
Report, which recommended that Defendants’ motion be
granted, and the case be dismissed in its entirety. (R&R,
at 1.) On March 11, 2024, Plaintiff filed his objections to
the Report with an accompanying declaration. (Pl. Objs.,
ECF No. 80.) On March 27, 2024, Defendants replied to the
Plaintiff's objections. (Def. Reply, ECF No. 83.) On April 16,
2024, Plaintiff filed additional objections to the Report. (Add'l
Objs., ECF No. 84.)
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II. LEGAL STANDARDS
A reviewing court “may accept, reject, or modify, in whole
or in part, the findings or recommendations” made within a
magistrate judge's report. 28 U.S.C. § 636(b)(1)(C). The court
“may also receive further evidence or recommit the matter to
the magistrate judge with instructions.” Id. The court must
review de novo the portions of a magistrate judge's report to
which a party properly objects. Id. Portions of a magistrate
judge's report to which no or “merely perfunctory” objections
have been made are reviewed for clear error. See Edwards
v. Fischer, 414 F. Supp. 2d 342, 346–47 (S.D.N.Y. 2006).
The clear error standard also applies if a party's “objections
are improper—because they are ‘conclusory,’ ‘general,’ or
‘simply rehash or reiterate the original briefs to the magistrate
judge.’ ” Stone v. Comm'r of Soc. Sec., No. 17-CV-569 (RJS)
(KNF), 2018 WL 1581993, at *3 (S.D.N.Y. Mar. 27, 2018)
(citation omitted). Clear error is present when “upon review
of the entire record, [the court is] left with the definite and
firm conviction that a mistake has been committed.” Brown
v. Cunningham, No. 14-CV-3515 (VEC) (MHD), 2015 WL
3536615, at *4 (S.D.N.Y. June 4, 2015) (citations omitted).
“The standard for granting a Rule 12(c) motion for judgment
on the pleadings is identical to that for granting a Rule 12(b)
(6) motion for failure to state a claim.” Lynch v. City of New
York, 952 F.3d 67, 75 (2d Cir. 2020). The chief question
is “whether a complaint's factual allegations plausibly give
rise to an entitlement to relief ....” Id. (citation omitted).
“[J]udgment on the pleadings is not appropriate if there are
issues of fact which if proved would defeat recovery, even if
the trial court is convinced that the party opposing the motion
is unlikely to prevail at trial.” Lively v. WAFRA Inv. Advisory
Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021) (citation omitted).
When assessing a Rule 12(c) motion, courts must “accept
all factual allegations in the complaint as true and draw all
reasonable inferences in [the Plaintiff's] favor.” Johnson v.
Rowley, 569 F.3d 40, 43 (2d Cir. 2009).
Further, courts must review pro se submissions with “special
solicitude,” and their contents “must be construed liberally
and interpreted to raise the strongest arguments that they
suggest.” Barnes v. City of New York, 68 F.4th 123, 127 (2d
Cir. 2023).
III. THE REPORT IS ADOPTED
Plaintiff objects to the Report's conclusions that (1) his
false arrest claim was untimely; (2) he did not establish a
malicious prosecution claim; and (3) he did not establish
a municipal liability claim. This Court liberally construes
Plaintiff's arguments as raising specific objections to the
Report. On a de novo review, this Court adopts the Report's
conclusions in full.
A. False Arrest 4
*3 “[I]n New York, the statute of limitations for [§] 1983
claims is New York's general statute of limitations for
personal injury actions, which is three years.” Kane v. Mount
Pleasant Central School District, 80 F.4th 101, 108 (2d Cir.
2023) (citation omitted). For false arrest claims, the statute
of limitations begins to run “once the victim becomes held
pursuant to [a legal] process—when, for example, he is bound
over by a magistrate or arraigned on charges.” Wallace v.
Kato, 549 U.S. 384, 389 (2007). Accordingly, the statute of
limitations on Plaintiff's false arrest claim began to run when
he was arraigned on June 24, 2015. (See Pl. Obj. at 5.) Since
more than three years elapsed between that date and Plaintiff's
filing of this action in 2022, Plaintiff's false arrest claim is
time barred.
Plaintiff does not dispute that he filed this action well beyond
the three-year limitation period. Instead, Plaintiff argues that
his claims are timely because he served a notice-of-claim
on the New York City Comptroller on July 30, 2015. (See
Add'l Objs. at 29–30.) But as the Report notes, “state law
notice-of-claim provisions are inapplicable to § 1983 actions
brought in federal court.” Finley v. Giacober, 827 F.Supp.
215, 219 (S.D.N.Y. 1993). So even if this notice-of-claim put
the Defendants on notice that Plaintiff may one day challenge
his arrest, this did not toll the three-year statute of limitations
for his federal claims. See Day v. Moscow, 955 F.2d 807,
814 (2d Cir. 1992) (“The purpose of a tolling provision is to
assure that the claimant has the full period of time provided
by a statute of limitations in which to bring his suit. In the
present case, no valid purpose would be served by enlarging
the prescribed period to ‘compensate’ for a disability that did
not exist.”)
This Court further adopts the Report's conclusion that
the continuing violation exception does not apply. As the
Report states, “[f]or the continuing violation doctrine to
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apply, a plaintiff must allege that “specific individuals
committed at least one wrongful act within the statutory
time period.” (R&R at 10 (quoting Gonzalez v. Wright,
665 F.Supp.2d 334, 350 (S.D.N.Y. 2009).) Here, “Plaintiff
has failed to allege any non-time-barred acts committed
by Defendants.” (Id.) Therefore, the continuing violation
doctrine is inapplicable.
Accordingly, this Court adopts the Report's recommendation
to dismiss Plaintiff's false arrest claim as untimely.
B. Malicious Prosecution
Unlike his false arrest claim, Plaintiff's malicious prosecution
claim is timely. Malicious prosecution claims pursuant to
§ 1983 are subject to the same three-year limitation period
noted above. See Smith v. City of New York, 1F.Supp.3d
114, 119 (S.D.N.Y. 2013). But this limitation period may be
equitably tolled where the plaintiff is “not at fault for her
lateness in filing.” Veltri v. Bldg. Serv. 32B-J Pension Fund,
393 F.3d 318, 322 (2d Cir. 2004). A litigant claiming equitable
tolling must show (1) “that some extraordinary circumstance
stood in her way” and (2) “that she has been pursuing her
rights diligently.” Doe v. United States, 76 F.4th 64, 71 (2d
Cir. 2023) (internal citation omitted).
Here, Magistrate Judge Willis reasoned that Plaintiff was
not at fault because his malicious prosecution claim was
not cognizable before the Supreme Court's decision in
Thompson v. Clark, 596 U.S. 36 (2022). (R&R at 12–13.)
Thompson held that plaintiffs alleging malicious prosecution
under § 1983 “need only show that the criminal prosecution
ended without a conviction.” Thompson, 596 U.S. at 49.
This changed prior Second Circuit case law that required
plaintiffs to show that their criminal prosecution ended
“with some affirmative indication of [ ] innocence.” Id.
at 41. Thus, prior to Thompson, Second Circuit case law
precluded malicious prosecution claims where (like here)
a plaintiff's underlying criminal charge was unilaterally
dismissed without an “affirmative indication of innocence.”
After the change in law, Plaintiff was reasonably diligent in
pursuing his rights, filing this claim less than one month after
the Thompson decision. (R&R at 13.) Plaintiff's reasonable
reliance on then-authoritative Second Circuit precedent, and
diligent effort to pursue his malicious prosecution claim
when it became available, warrants equitable tolling of
the statute of limitations. Accordingly, this Court adopts
Magistrate Judge Willis's conclusion that Plaintiff's malicious
prosecution claim is timely.
*4 Although timely, Plaintiff's malicious prosecution claim
is not actionable. First, that claim is barred under Heck v.
Humphrey, 512 U.S. 477 (1994). Heck held that in actions
seeking “damages for allegedly unconstitutional convictions
or imprisonments, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid,” plaintiffs must prove that the conviction or sentence
has been “invalidated.” Id. at 486–87. Here, Plaintiff seeks
damages arising out of his criminal conviction, (see TAC
at 5,) and a favorable decision on his malicious prosecution
claim would necessarily call into question his valid federal
conviction. The instant suit and Plaintiff's federal conviction
both arose from his May 25, 2015, arrest and the subsequent
inventory search of Plaintiff's vehicle. Additionally, Plaintiff's
federal conviction was upheld on appeal and remains valid.
See Wallace, 937 F.3d at 136–37. Magistrate Judge Willis
correctly determined that Plaintiff's malicious prosecution
claim and his valid federal conviction are “inextricably
intertwined,” and therefore, barred under Heck. (R&R at 18.)
Moreover, Plaintiff has failed to adequately allege a claim for
malicious prosecution. To establish a malicious prosecution
claim under New York law, a plaintiff must prove “(1) the
initiation or continuation of a criminal proceeding against
plaintiff; (2) termination of the proceeding in plaintiff's favor;
(3) lack of probable cause for commencing the proceeding;
and (4) actual malice as a motivation for defendant's actions.”
Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir.
2010) (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir.
1997)).
It is clear from the pleadings that Defendants had probable
cause to initiate prosecution, even though the initial charge
was dismissed. Probable cause to prosecute is implied where
the officers had probable cause to arrest and there was no
intervening fact that dissipated their probable cause. Kinzer v.
Jackson, 316 F.3d 139, 144 (2d Cir. 2003). It is uncontested
that Plaintiff's driver-side door was missing a VIN label in
violation of New York Penal Law § 170.70. (See SAC at
4–5.) Plaintiff has failed to allege any intervening facts that
would dissipate this probable cause to arrest. Plaintiff alleges
that during the arrest, officers performed a “Rugby Search”
of the vehicle's registration stickers, which showed Plaintiff
was the owner of the vehicle. (Pl. Objs. at 2–4.) But this
information would not dissipate the officer's probable cause
to arrest pursuant to § 170.70 because Plaintiff's driver-side
door was still missing a VIN label. Further, the court presiding
over Plaintiff's criminal trial considered and rejected this
same argument. See Wallace, 2016 WL 4367961, at *8–9.
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The initial probable cause to arrest, and the discovery of the
handgun without any intervening fact, is fatal to Plaintiff's
malicious prosecution claim. Accordingly, this Court adopts
the Report's conclusion on this issue and dismisses Plaintiff's
malicious prosecution claim.
C. Municipal Liability
Finally, Plaintiff objects to the Report's conclusion that he has
not adequately plead a municipal liability claim. “[T]o hold
a city 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.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.
1983). “The failure to train or supervise city employees may
constitute an official policy or custom if the failure amounts
to ‘deliberate indifference’ to the rights of those with whom
the city employees interact.” Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007) (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). “To establish deliberate
indifference, a plaintiff must show that the municipality was
aware of constitutional injury, or the risk of constitutional
injury, but failed to take appropriate action to prevent or
sanction violations of constitutional rights.” Uviles v. City of
New York, 130 F.4th 27, 32 (2d Cir. 2025) (citation omitted).
*5 Here, Plaintiff argues that the City was deliberately
indifferent to his constitutional rights by failing to effectively
punish one of the arresting officers for previous constitutional
violations. (See TAC at 18–19; Pl. Objs. at 7; Add'l Objs.
at 27–28.) Specifically, Plaintiff alleges that the City was
aware that one of the arresting officers was previously
“found guilty” by the Civilian Complaint Review Board
for unlawful arrests and seizures. (Add'l Objs. at 27–28.)
Even accepting these allegations as true, these two previous
unrelated incidents are not sufficient to establish a widespread
pattern of misconduct by the officer or deliberate indifference
by the City. See Giaccio v. City of New York, 308 F. App'x 470,
472 (2d Cir. 2009) (finding that four constitutional violations
“falls far short of establishing a practice that is ‘so persistent
or widespread’ as to justify the imposition of municipal
liability”); Nardoni v. City of New York, 331 F. Supp. 3d
116, 129 (S.D.N.Y. 2018) (finding allegations of six previous
incidents of false arrest by an NYPD detective insufficient
to establish a policy or practice). Further, Plaintiff fails to
allege any causal link between the officer's previous alleged
misconduct and the City's decision to commence and pursue
criminal charges following his arrest. Accordingly, Plaintiff's
municipal liability claim is dismissed.
IV. PLAINTIFF IS NOT
GRANTED LEAVE TO AMEND
This Court also adopts the Report's recommendation to deny
the Plaintiff leave to amend. Ordinarily, “pro se litigants
should be given leave to amend a complaint if a liberal
reading of the complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu, 22 F.3d 99,
112 (2d Cir. 2000) (citation omitted). But where a plaintiff's
claims are substantively lacking, such 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). Here, additional
pleadings would not cure the substantive deficiencies in
Plaintiff's claims. Accordingly, Plaintiff is denied further
leave to amend.
V. CONCLUSION
Defendants’ motion for judgment on the pleadings, (ECF No.
46,) is GRANTED. The Clerk of Court is directed to close the
case accordingly.
SO ORDERED.
All Citations
Slip Copy, 2026 WL 392345
Footnotes
1 The relevant factual and procedural background is set forth in greater detail in the Report and is incorporated
by reference herein.
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2 New York Penal Law § 170.70 states, in relevant part, that “a person is guilty of illegal possession of a vehicle
identification number when ... [h]e knowingly possesses a vehicle or vehicle part ... from which a vehicle
identification number label, sticker, or plate has been removed.” N.Y. Penal Law § 170.70.
3 This Court takes judicial notice of the extensive record in Plaintiff's federal criminal case and the facts
established at trial. See Brookins v. Laureano, No. 22-1478-PR, 2023 WL 6458543 (2d Cir. Oct. 4, 2023)
(taking judicial notice of the record in a prior criminal case); Fed. R. Evid. 201(b).
4 While Plaintiff has raised claims for false arrest in numerous complaints, the operative complaint only asserts
a claim for malicious prosecution. See TAC at 6 (“Even though the Defendants in this matter are liable
for numerous violations of Plaintiff's constitutional right's [sic] ... this claim is in reference to the malicious
prosecution ....”). Defendants’ motion, however, responds to all the arguments raised in Plaintiff's numerous
complaints. (See Motion at 5.) “[I]n the interest of resolving this dispute on the merits,” Judge Willis considered
both Plaintiff's false arrest and malicious prosecution claims. (Report at 2.) Likewise, this Court will review
the Report's recommendations on both of Plaintiff's claims.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Turczyn ex rel. McGregor v. City of Utica, Not Reported in F.Supp.3d (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 6685476
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Kylie Ann TURCZYN, Deceased, by and through
Barbara McGREGOR, as Administratrix of
the Estate of Kylie Ann Turczyn, Plaintiff,
v.
CITY OF UTICA et al., Defendants.
No. 6:13–cv–1357 (GLS/ATB).
|
Signed Nov. 26, 2014.
Attorneys and Law Firms
Office of Frank Policelli, Frank Policelli, Esq., of Counsel,
Utica, NY, for the Plaintiff.
City of Utica—Corporation Counsel, Mark C. Curley, Esq.,
Merima Smajic, Esq., Zachary C. Oren, Esq., of Counsel,
Utica, NY, for the Defendants.
MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, Chief Judge.
I. Introduction
*1 Plaintiff Kylie Ann Turczyn, deceased, by and through
Barbara McGregor, as administratrix of the estate of Kylie
Ann Turczyn, commenced this action against defendants City
of Utica, City of Utica Police Dept., and Elizabeth Shanley
alleging substantive due process claims pursuant to 42 U.S.C.
§ 1983 and separate state law causes of action. (Am.Compl.,
Dkt. No. 12.) Pending is defendants' motion to dismiss for
failure to state a claim. (Dkt. No. 19.) For the reasons that
follow, the motion is granted in part and denied in part.
II. Background
A. Facts 1
Shanley, an Oneida County domestic violence investigator,
was at all relevant times assigned by the Police Department to
accomplish the goals of reducing “occurrence[s] of domestic
violence by increasing reporting and by identifying and
tracking repeat victims and/or offenders,” and “increas[ing]
victims' access to supportive services by encouraging [them]
to report their abuse, thereby increasing arrest rates for
domestic offenders.” (Am.Compl.¶ 10.) On June 22, 2012,
Thomas Anderson, Turczyn's former boyfriend and the father
of her daughter, broke into Turczyn's home armed with a 9
mm rifle. (Id. ¶ 11) Anderson repeatedly shot Turczyn, taking
her life in view of their four-year-old daughter, G.T. (Id.)
Anderson then dispatched himself. (Id.)
In the twelve months preceding this horrific event, Turczyn
made between five and ten complaints to Utica police
officers, “including informing them of a specific threat by
Anderson to kill her.” (Id. ¶ 12.) Turczyn specifically told
Shanley “that Anderson was armed and had threatened to
kill her.” (Id. ¶ 12(d).) Despite their knowledge of domestic
violence between Turczyn and Anderson, neither Shanley,
New York State Police, nor Utica Police took any steps to
arrest Anderson, investigate Turczyn's complaints, or follow-
up with Anderson “as is the policy and protocol of the
domestic violence unit.” (Id. ¶ 14.)
On June 18, 2012, Shanley told Turczyn to seek an order of
protection, which she attempted to do, but was told by an
unknown person at the Oneida County Family Court to return
the following day because the court was “ ‘too busy.’ “ (Id.
¶¶ 15–16.) The following day, Turczyn left a voice message
for Shanley, explaining that she was unable to obtain an order
of protection and that Anderson had a gun and planned to
kill her that week. (Id. ¶¶ 16–18.) Despite her knowledge,
“Shanley took no action.” (Id. ¶ 17.) Shanley also mistakenly
believed that Turczyn's issues with Anderson were outside of
the purview of Utica Police and should, instead, be dealt with
by New York State Police; however, “she did not inform any
other police agency or take any action herself.” (Id. ¶¶ 18, 19,
20.)
B. Procedural History
Turczyn commenced this action by filing a complaint on
October 31, 2013. (Dkt. No. 1.) Defendants thereafter moved
to dismiss, (Dkt. No. 10.) In response, Turczyn filed an
amended complaint as of right, which is now the operative
pleading. (See generally Am. Compl.) In her amended
complaint, Turczyn alleges the following causes of action:
(1) a denial of substantive due process rights under the Fifth
and Fourteenth Amendments due to deliberate indifference;
(2) a Monell 2 claim against the City; (3) negligence; (4)
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a “derivative action” on behalf of G.T.; and (5) negligent
infliction of emotional distress. (Id. ¶¶ 37–74.) Defendants
now move to dismiss the amended pleading pursuant to Rules
8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.
(Dkt. No. 19.)
III. Standard of Review
*2 The standard of review under Fed.R.Civ.P. 12(b)(6) is
well settled and will not be repeated here. For a full discussion
of the standard, the court refers the parties to its prior decision
in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218
(N.D.N.Y.2010).
IV. Discussion
A. Preliminary Matters
At the outset, it is noted that some of Turczyn's claims
are deemed abandoned by her failure to oppose their
dismissal. See Barmore v. Aidala, 419 F.Supp.2d 193, 201–
02 (N.D.N.Y.2005) (“The failure to oppose a motion to
dismiss a claim is deemed abandonment of the claim,
and, in the Northern District of New York, is deemed
consent to granting that portion of the motion.” (internal
citations omitted)); Hanig v. Yorktown Cent. Sch. Dist.,
384 F.Supp.2d 710, 723 (S.D.N.Y.2005) (“[B]ecause [the]
plaintiff did not address [the] defendant's motion to dismiss
with regard to [a particular] claim, it [wa]s deemed abandoned
and ... dismissed.”). In particular, Turczyn squarely opposed
dismissal of her substantive due process claim as against
Shanley, (Dkt. No. 20 at 8–12), and scarcely, but sufficiently
to save the claim from dismissal for abandonment, offered
reasons why her substantive due process claim as against the
City should survive defendants' motion, (id. at 5–7). Aside
from the substantive due process claim, Turczyn failed to
offer any opposition to defendants' motion, which also sought
dismissal of her pendant causes of action. (Dkt. No. 19,
Attach. 6 at 31–40 & n. 15.) Accordingly, Turczyn's pendant
state law claims, (Am.Compl.¶¶ 59–74), are dismissed.
Additionally, it is clear that the Police Department must be
dismissed as urged by defendants, (Dkt. No. 19, Attach. 6
at 2 n. 2), because “a department of a municipal entity is
merely a subdivision of the municipality and has no separate
legal existence.” Varela v. City of Troy, No. 1:10–cv–1390,
2014 WL 2176148, at *6 (N.D.N.Y. May 22, 2014) (internal
quotation marks omitted). As such, all claims as against the
Police Department are dismissed.
The court also notes that both parties have submitted certain
evidence that is outside of the pleadings (Dkt. No. 19,
Attachs. 3, 4; Dkt. No. 20, Attachs. 1, 2.) Beginning with
defendants, they submitted a January 2, 2013 stipulation of
discontinuance, which, on its face, purports to memorialize
McGregor's agreement to withdraw the notice of claim filed
on behalf of Turczyn and to discontinue with prejudice,
(Dkt. No. 19, Attach.3), and a December 28, 2012 letter,
which appears to memorialize a conversation regarding the
discontinuation of legal action and execution of a stipulation,
(Dkt. No. 19, Attach.4). Relying on a single out-of-Circuit
decision, see Raines v. Haverford Coll., 849 F.Supp. 1009,
1010 (E.D.Pa.1994), which does not appear directly to
support their position nor does it give this court confidence
that the kinds of documents at issue here were contemplated
by that decision, defendants assert that the documents may be
considered on their motion to dismiss as “part of the record of
this case.” (Dkt. No. 19, Attach. 6 at 25 n. 11.) Turczyn argues
that defendants' reliance on the stipulation is inappropriate
at this juncture, yet she offers the affidavit of McGregor,
submitted to dispute the validity of the stipulation, (Dkt. No.
20, Attach.1), without any explanation as to why the court
should or may consider it. (Dkt. No. 20 at 12–13.)
*3 The court has excluded from its consideration of this
motion to dismiss the exhibits offered by defendants as
well as the McGregor affidavit. See Fed.R.Civ.P. 12(d).
The existence of some document or documents that may
extinguish a plaintiff's claims, such as a release or stipulation
of discontinuance, is an affirmative defense, see Beede v.
Stiefel Labs., Inc., No. 1:13–cv–120, 2014 WL 896725, at *3
(N.D.N.Y. Mar.6, 2014), and “ ‘[a]n affirmative defense may
be raised by a pre-answer motion to dismiss under Rule 12(b)
(6) ... if the defense appears on the face of the complaint,’ “
Iowa Pub. Emps.' Ret. Sys. v. MF Global, Ltd., 620 F.3d 137,
145 (2d Cir.2010) (quoting Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 74 (2d Cir.1998)).
Here, the stipulation defense is not apparent from the face
of the amended complaint. Moreover, the court refuses to
consider the documents in question as part of the record of
this case, a proposition for which no in-Circuit authority has
been offered nor has any been discovered by this court. As
such, the documents offered by defendants, (Dkt. No. 19,
Attachs.3, 4), are not properly before the court, and their
argument that Turczyn's claims must be dismissed because of
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those documents is rejected. McGregor's affidavit, (Dkt. No.
20, Attach.1), which was also improvidently submitted for
consideration, is likewise excluded. The court now turns to
the merits of defendants' arguments regarding the substantive
due process and Monell claims.
B. Rule 8
First, defendants argue that Turczyn's § 1983 due process
claim is subject to dismissal under the Rule 8 plausibility
analysis—specifically because of Turczyn's failure to allege
facts supportive of a sufficient nexus between Shanley's
omissions and Turczyn's death. (Dkt. No. 19, Attach. 6
at 23–24.) The court disagrees. The amended complaint
plausibly alleges a causal connection between the conduct
of defendants—their alleged conscience-shocking failure to
protect Turczyn, (Am.Compl.¶ 49)—and her injuries, i.e.,
the allegations plausibly suggest that defendants' acts were
a substantial factor in bringing about Turczyn's injuries. See
Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir.1998) (“[I]n
all § 1983 cases[ ] the plaintiff must prove that the defendant's
action was a proximate cause of the plaintiff's injury.”).
Accordingly, this argument is rejected.
C. Rule 12(b)(6)
Defendants argue that Turczyn has failed to state a substantive
due process claim as against Shanley or the City. (Dkt. No.
19, Attach. 6 at 220, 26–31.) Defendants contend that Turczyn
alleges only passive conduct on the part of Shanley that does
not give rise to a substantive due process violation. (Id. at 10–
12.) More generally, defendants assert that Turczyn has failed
to plead facts to show “implicit prior assurances through
repeated sustained inaction,” and that, even if she did, the
state action alleged does not rise to the level of conscience-
shocking behavior. (Id. at 15–20.) Alternatively, defendants
argue that Shanley is entitled to qualified immunity. (Id. at
20–23.) With respect to the City, defendants contend that
Turczyn has failed to allege facts that support a claim of
municipal liability. (Id. at 26–31.) For reasons explained
below, defendants' motion is denied with respect to Turczyn's
substantive due process claim against Shanley, but granted
with respect to her Monell claim against the City.
*4 Only one relevant exception to the general rule that
no substantive due process claim lies for a state's failure to
protect an individual from private violence, see DeShaney v.
Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197,
109 S.Ct. 998, 103 L.Ed.2d 249 (1989), potentially applies
in this case. That exception imposes liability for failure to
protect where state actors in some way affirmatively assist
“in creating or increasing the danger to the victim.” Okin v.
Vill. of Cornwall–On–Hudson Police Dep't, 577 F.3d 415, 428
(2d Cir.2009) (internal quotation marks and citation omitted);
see Pena v. DePrisco, 432 F.3d 98, 110 (2d Cir.2005).
“[R]epeated, sustained inaction by government officials, in
the face of potential acts of violence, might constitute ‘prior
assurances,’ rising to the level of an affirmative condoning
of private violence, even if there is no explicit approval or
encouragement.” Okin, 577 F.3d at 428 (quoting Dwares
v. City of N.Y., 985 F.2d 94, 99 (2d Cir.1993)). Moreover,
when “state officials communicate to a private person that
he ... will not be arrested, punished, or otherwise interfered
with while engaging in misconduct that is likely to endanger
the life, liberty or property of others, those officials can
be held liable under section 1983 for injury caused by the
misconduct” “even though none of the defendants [is] alleged
to have communicated the approval explicitly.” Id. at 428–
29 (quoting Pena, 432 F.3d at 111)). In a nutshell, “[t]he
affirmative conduct of a government official may give rise
to an actionable due process violation if it communicates,
explicitly or implicitly, official sanction of private violence.”
Id. at 429.
A successful substantive due process claim also requires that
the plaintiff show “that the state action was ‘so egregious,
so outrageous, that it may fairly be said to shock the
contemporary conscience.’ “ Id. at 431 (quoting Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708,
140 L.Ed.2d 1043 (1998). A hierarchy of intent provides
guidance on the likelihood that a particular harm rises to the
necessary level. Intentionally inflicted harms are most likely
to meet the standard, while reckless and negligent inflictions
of harm are each less likely, in graduated downward steps, to
show conscience-shocking state action. Id. As for recklessly
inflicted injuries, “ ‘[d]eliberate indifference that shocks in
one environment may not be so patently egregious in another.’
“ Id. (quoting Lewis, 523 U.S. at 850). Accordingly, the
inquiry is highly fact specific.
Unlike Town of Castle Rock v. Gonzales, 545 U.S. 748,
125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), or Neal v. Lee
County, Civil Action No. 1:08CV262, 2010 WL 582437
(N.D.Miss. Feb.12, 2010)—cases in which police had limited
interaction with either the victim or killer prior to the
victim's demise, and upon which defendants rely for dismissal
of the claim against Shanley, (Dkt. No. 19, Attach. 6 at
3–5, 7–8)—the allegations here go substantially farther.
Turczyn alleges several occasions 3 when Shanley knew of
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Anderson's threatening acts and did nothing, which arguably
communicated to him prior assurances that there would be
no penalty to pay for his conduct. (Am.Compl.¶¶ 12–13.)
“This is so even though none of the defendants are alleged
to have communicated the approval explicitly.” Pena, 432
F.3d at 111. Okin has specifically recognized the liability
that may arise under these circumstances. See 577 F.3d at
428–29 (explaining that liability under § 1983 attaches when
“state officials communicate to a private person that he ... will
not be arrested, punished, or otherwise interfered with while
engaging in misconduct that is likely to endanger the life,
liberty or property of others” (quoting Pena, 432 F.3d at 111)).
*5 The amended complaint also pleads facts that
demonstrate, at this juncture, egregious behavior that shocks
the contemporary conscience. As in Okin, the allegations
here tend to show that Shanley, who was tasked with
accomplishing certain goals related to curbing domestic
violence, was deliberately indifferent as to whether or not
Anderson would make good on his multiple threats against
Turczyn's life over a twelve-month-period. (Am.Compl.¶ ¶
10, 12.) These allegations sufficiently support that Shanley's
affirmative conduct was the product of deliberate indifference
that shocks the conscience, and would provide a reasonable
jury with a valid basis to so find. See Conradt v. NBC
Universal, Inc., 536 F.Supp.2d 380, 394–95 (S.D.N.Y.2008).
Finally, Shanley is not entitled to qualified immunity at
this juncture. Her argument on this issue is two-fold. First,
Shanley asserts that no constitutional violation occurred, and,
second, she claims that, even if a constitutional violation
occurred, the right was not clearly established. (Dkt. No.
19, Attach. 6 at 20–23.) The first prong of the argument is
easily swept aside by reference to the preceding paragraphs
that explain that the amended complaint alleges a cognizable
substantive due process violation. As for whether or not
the right was clearly established, which is a prerequisite
to qualified immunity, see Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), this
question has been resolved by the Second Circuit. On the
issue, the court has explained that it is “clearly established,”
under the state-created danger theory, “that police officers are
prohibited from affirmatively contributing to the vulnerability
of a known victim by engaging in conduct, whether explicit
or implicit, that encourages intentional violence against the
victim, and as that is the substantive due process violation
alleged here, qualified immunity does not apply.” Okin, 577
F.3d at 434. Accordingly, Shanley is not entitled to qualified
immunity at this time.
As for the City, defendants assert that Turczyn has failed to
plead a Monell claim because the amended complaint merely
alleges legal conclusions. (Dkt. No. 19, Attach. 6 at 26–31.)
With respect to Turczyn's allegation that the City failed to
properly train or supervise its employees, defendants contend
that the amended complaint is too conclusory, but that, even
if adequately pleaded, Turczyn's municipal liability claim
must nonetheless fail because she has not alleged deliberate
indifference. (Id. at 29–31.)
It is well settled that “the inadequacy of police training may
serve as the basis for § 1983 liability ... where the failure
to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of
Canton, Oh. v. Harris, 489 U.S. 378, 380, 388, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989). The deliberate indifference
standard is “stringent” and requires “proof that a municipal
actor disregarded a known or obvious consequence of his
action.” Connick v. Thompson, –––U.S. ––––, ––––, 131 S.Ct.
1350, 1360, 179 L.Ed.2d 417 (2011) (internal quotation marks
and citation omitted). A showing of deliberate indifference
requires that: (1) “a policymaker knows ‘to a moral certainty’
that her employees will confront a given situation”; (2) “the
situation either presents the employee with a difficult choice
of the sort that training or supervision will make less difficult
or that there is a history of employees mishandling the
situation”; and (3) “the wrong choice by the ... employee will
frequently cause the deprivation of a citizen's constitutional
rights.” Walker v. City of N.Y., 974 F.2d 293, 297–98 (2d
Cir.1992) (quoting City of Canton, 489 U.S. at 390 n. 10).
*6 Here, because Turczyn has failed to adequately plead that
the City's failure to train and supervise amounted to deliberate
indifference, she has failed to state a claim of municipal
liability. The amended complaint uses the label “deliberate
indifference” in reference to Turczyn's municipal liability
claim and generically references the City's failure to properly
train and supervise, but it fails to allege facts that support
either conclusory notion. (Am.Compl.¶¶ 45, 52.) Turczyn's
pleading failure mandates dismissal of her Monell claim
against the City. See Gauthier v. Kirkpatrick, Civil Action No.
2:13–cv–187, 2013 WL 6407716, at *10 (D.Vt. Dec.9, 2013)
(dismissing failure to train Monell claim because the plaintiff
failed to plead facts that supported the deliberate difference
elements); Santos v. New York City, 847 F.Supp.2d 573, 577
(S.D.N.Y.2012); see also Worrell v. City of N.Y ., No. 12–CV–
6151, 2014 WL 1224257, at *13 (E.D.N.Y. Mar. 24, 2014).
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V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants' motion to dismiss (Dkt. No. 19)
is GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to all claims alleged as against
the City of Utica Police Dept. and the Clerk is directed to
terminate the City of Utica Police Dept. from this action; and
GRANTED with respect to Turczyn's Monell claim
against the City (Am.Compl.¶ ¶ 51–58), which is hereby
DISMISSED WITHOUT PREJUDICE, and the Clerk is
directed to terminate the City of Utica from this action; and
GRANTED with respect to all of Turczyn's pendant state
law claims, (Am.Compl.¶ ¶ 59–74), which are hereby
DISMISSED; and DENIED in all other respects; and it is
further
ORDERED that the sole remaining defendant, Shanley,
shall file an appropriate responsive pleading within the time
allotted by the rules; and it is further
ORDERED that the parties shall contact Magistrate Judge
Andrew T. Baxter in order to schedule further proceedings;
and it is further
ORDERED that the Clerk provide a copy of this
Memorandum–Decision and Order to the parties.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 6685476
Footnotes
1 The facts are presented in the light most favorable to plaintiff.
2 See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
3 In fact, Turczyn claims that she lodged five to ten complaints—of which Shanley was aware—with the Utica
Police within the twelve months preceding the murder. (Am.Compl.¶¶ 12, 13.) So many occurrences may
amount to “repeated [and] sustained inaction ... in the face of potential acts of violence.” Okin, 577 F.3d at 428.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
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
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 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
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.”).
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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).
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
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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
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.).
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).
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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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All Citations
Not Reported in Fed. Supp., 2019 WL 981850
Footnotes
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.
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.
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.
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).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-00846-GTS-ML Document 48 Filed 02/26/26 Page 216 of 240

White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
© 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
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.
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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White v. Syracuse Police Department, Not Reported in Fed. Supp. (2019)
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Footnotes
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.
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) (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).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Extend by Jordan v. County of Chemung, W.D.N.Y.,
September 5, 2017
2014 WL 1293527
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Guynell WRIGHT, Plaintiff,
v.
CITY OF SYRACUSE; Jeffrey T. Wright;
Andrew Nolan; Donald Thompson; Robert
Calkin; John Doe(s); Jane Doe(s); John M.
O'Connor, III; and Thomas Simone, Defendants.
No. 5:10–CV–0661 (GTS/TWD).
|
Signed March 31, 2014.
Attorneys and Law Firms
Bosman Law Firm, L.L.C., A.J. Bosman, Esq., Daniel W.
Flynn, Esq., of Counsel, Rome, NY, for Plaintiff.
Hon. Robert P. Stamey, James P. McGinty, Esq., Aimee M.
Paquette, Esq., of Counsel, Syracuse, NY, for City of Syracuse
Counsel for Defendants.
Hancock Estabrook LLP, John G. Powers, Esq., of Counsel,
Syracuse, NY, for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this employment
discrimination action filed by Guynell Wright (“Plaintiff”)
against the City of Syracuse, six of its employees and an
unstated number of John and Jane Does (“Defendants”)
is Defendants' motion for summary judgment pursuant to
Fed.R.Civ.P. 56. (Dkt. No. 95.) For the reasons set forth
below, the motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Generally, in his Third Amended Complaint, Plaintiff, an
African–American man who was formerly employed by the
City of Syracuse (“the City”) as a laborer for the Department
of Public Works (“the Department”), alleges that, throughout
his employment with the City, he was treated differently than
similarly situated white employees in the form of promotions,
work assignments and discipline; he was retaliated against for
his complaints of racial discrimination; and he was subject
to continuous hostile work environment conditions. (Dkt. No.
45.)
Based on the factual allegations of Plaintiff's Third Amended
Complaint, he asserts the following twenty-one claims: (1)
a claim against all Defendants alleging race discrimination
in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) a
claim against all Defendants alleging race discrimination in
violation of the New York Human Rights Law, N.Y. Exec.
Law § 296 (“NYHRL”); (3) a claim against all Defendants
alleging hostile work environment in violation of Title VII;
(4) a claim against all Defendants alleging hostile work
environment in violation of NYHRL; (5) a claim against all
Defendants alleging retaliation in violation of Title VII; (6)
a claim against ll Defendants alleging retaliation in violation
of NYHRL; (7) a claim against all Defendants alleging
race discrimination in violation of Plaintiff's right to equal
protection under the Fourteenth Amendment pursuant to 42
U.S.C. § 1983 (“Section 1983”); (8) a claim against all
Defendants alleging hostile work environment in violation
of Plaintiff's right to equal protection under the Fourteenth
Amendment pursuant to Section 1983; (9) a claim against
all Defendants alleging retaliation in violation of Plaintiff's
right to freedom of speech under the First Amendment
pursuant to Section 1983; (10) a claim against the City
alleging municipal liability on Plaintiff's Section 1983 claims
against the individually named Defendants; (11) a claim
alleging breach of contract against all Defendants; (12) a
claim against all Defendants alleging race discrimination in
violation of 42 U.S.C. § 1981 (“Section 1981”); (13) a claim
against all Defendants alleging hostile work environment in
violation of Section 1981; (14) a claim against all Defendants
alleging retaliation in violation of Section 1981; (15) a claim
against all Defendants alleging the deprivation of Plaintiff's
property interest in his continued employment in violation
of his right to due process under the Fourteenth Amendment
pursuant to Section 1983; (16) a claim against all Defendants
alleging the deprivation of Plaintiff's property and liberty
interest in his good name and reputation in violation of
his right to due process under the Fourteenth Amendment
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Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014)
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pursuant to Section 1983; (17) a claim against all Defendants
alleging the deprivations of Plaintiff's rights under Article
I of the New York State Constitution; (18) a claim against
all Defendants alleging retaliation in violation of Title
VII based on the Defendants having successfully contested
Plaintiff's unemployment compensation benefits; (19) a claim
against all Defendants alleging retaliation in violation of
Section 296 based on the Defendants having successfully
contested Plaintiff's unemployment compensation benefits;
(20) a claim against all Defendants alleging retaliation in
violation of Plaintiff's right to freedom of speech under
the First Amendment pursuant to Section 1983 based on
the Defendants having successfully contested Plaintiff's
unemployment compensation benefits; and (21) a claim
against all Defendants alleging retaliation in violation of
Section 1981 based on the Defendants having successfully
contested Plaintiff's unemployment compensation benefits.
(Id.)
B. Undisputed Material Facts
*2 The following material facts 1 are gleaned from
Defendants' Local Rule 7.1 Statement of Undisputed Material
Facts, and Plaintiff's response thereto. (See Dkt. No. 100–
7 [Defs.' Rule 7.1 Statement]; Dkt. No. 105 [Pl.'s Rule 7.1
Response Statement].) Local Rule 7.1(a)(3) of the Local
Rules of Practice for this Court requires that the nonmoving
party file a response to the moving party's Statement of
Material Facts, which admits or denies each of the moving
party's factual assertions in matching numbered paragraphs,
and supports any denials with a specific citation to the record
where the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3). It
further provides that, to the extent that the nonmoving party
fails to do so, the facts asserted in the movant's Statement of
Material Facts will be deemed admitted, as long as they are
supported by the record. Id.
Plaintiff was employed as a “Laborer I” in the Department's
Street Cleaning Bureau from at least June of 2006 until
his termination in February of 2010. 2 Laborer I is a
civil service classified job title that includes a written job
description and written qualifications. The Laborer I position
is covered within the American Federation of State, County
and Municipal Employees (“AFSCME”) Local 400 (“Local
400”) bargaining unit, of which Plaintiff was a member.
The collective bargaining agreement (“CBA”) for the relevant
period between the City and Local 400 provides that the City
shall furnish each employee member of Local 400 with a
copy of the existing Work Rules and that any amendments
or additions to the Work Rules shall be discussed with Local
400 and published to its members prior to becoming effective
and that thereafter, any complaint shall be resolved through
the grievance procedure. (See Dkt. No. 96–2, at 64 [Ex.
B to Decl. of Donald Thompson, June 13, 2013].) Section
8.1.4 of the CBA also provides that, “[i]n the event that
an employee receives a written reprimand and one (1) year
elapses without any other disciplinary action being imposed
on the employee, such reprimand shall be removed from the
employee's personal file.
The Work Rules provide, in relevant part, at follows:
VII. Employee Discipline
The City shall not exercise its right to discharge or
otherwise discipline an employee without just cause.
Whenever reasonable, the City shall subscribe to the
principles of progressive discipline. Set forth below are
the guidelines used by the City in enforcing progressive
discipline and determining the appropriate disciplinary
penalty in any particular circumstance. These guidelines
may be deviated from when, in the City's opinion,
circumstances warrant.
MINOR OFFENSES
FIRST, SECOND, THIRD - Write up
FORTH - Write up and one day suspension
FIFTH - Write up and three day suspension
SIXTH - Write up and five day suspension
SEVENTH - Write up and ten day suspension
EIGHTH - Write up and termination
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MAJOR OFFENSES
FIRST - Write up and suspension or termination
SECOND - Write up and suspension or termination
THIRD - Write up and termination
*3 Notwithstanding the provisions of Article 8.1.4 of the
parties ['] collective bargaining agreement, the discipline
imposed for those violations considered to be ‘minor’ shall
be determined by reviewing the number of such violations
for which an employee has been disciplined in the twelve
(12) months preceding the current violation;
However, upon committing a fourth (4th) ‘minor’
violation within the above stated twelve (12) month[ ]
period, then that minor violation and each succeeding
‘minor’ violation shall be based on discipline[ ] received
within the preceding eighteen (18) month period. The
discipline imposed for each succeeding violation shall
be in accordance with progressive discipline as outlined
in the above guidelines;
In all cases of ‘major’ violations which are subject to
suspension and/or termination, the preceding eighteen
(18) months disciplinary record (including ‘minor’
violations) shall be considered in determining the
discipline to be imposed in accordance with those
outlined in the above guidelines.
(Dkt. No. 107–1, at 9–10 [Ex. 1 to Flynn Aff. ].) The
Work Rules expressly provide that “[i]nsubordination is
a major ... violation.” (Id., at 7.) To be sure, the Work
Rules provide that “[t]heft of any City property or services
is prohibited[,]” the level of violation attached to such
conduct is not specified. (Id.) However, Section 9.2.1 of
the CBA refers to fighting, theft, substance abuse and
insubordination as “serious violations.” (See Dkt. No. 96–
2, at 53.)
From July 2006 until he was terminated, Plaintiff was subject
to a series of disciplinary actions by the City. First, in
July 2006, Plaintiff was given a one-day suspension for
insubordination. In February 2007, Plaintiff was given a 20–
day suspension for fighting with another employee. 3 In July
2007, Plaintiff was given a 20–day suspension for theft of
City property. In January 2009, Plaintiff was terminated for
insubordination, but then was brought back to work through
a “last chance” agreement between the City and Local 400. 4
Finally, on February 24, 2010, Plaintiff was terminated for
theft of City Property. Plaintiff does not dispute the fact
of these disciplinary actions, but disputes the bases for the
actions and/or argues that the City applies their policies
inconsistently, discretionarily and disparately.
Defendant, John M. O'Connor, III (“O'Connor”) made the
decision to terminate Plaintiff. O'Connor was appointed
Commissioner of the Department in January 2010 and had
no involvement in Plaintiff's discipline or any employment
actions regarding Plaintiff prior to his termination in
February 2010. Defendant, Jeffrey Wright (“Wright”) was
the Commissioner of the Department through December
2009 and had no involvement in the decision to terminate
Plaintiff in February 2010. Defendant, Thomas Simone, III
(“Simone”) has been the First Deputy Commissioner of the
Department since January 2010. He was not a decision maker
regarding the determination to terminate Plaintiff in February
2010.
*4 Defendant, Donald Thompson (“Thompson”) was the
Director of Personnel during the relevant period. Thompson
asserts by Declaration that he agreed that it was appropriate
to terminate Plaintiff under the circumstances and concurred
with O'Connor's decision in that regard. (See Dkt. No. 96 at
¶¶ 34–35 [Decl. of Donald Thompson, June 13, 2013].) At his
deposition, O'Connor testified regarding his communication
with Thompson prior to terminating Plaintiff, as follows: “I
had [a] conversation with Don Thompson, who told me the
level of progression [Plaintiff] was at and [sic] was instructed
and encouraged that I should investigate, and most likely there
would be termination here.” (Dkt. No. 112, at 56 [Dep. of John
M. O'Connor, III, at 152: 4–8, Jan. 4, 2013].) According to
Plaintiff, O'Connor told him that Don (meaning Thompson)
“said to fire you.” (Dkt. No. 106 at 7–8 [Aff. of Guynell
Wright at ¶ 41].)
During the relevant time period, Defendant, Robert Culkin
(“Culkin”) was the Acting Assistant Superintendent of the
Department's Street Cleaning Bureau and Defendant, Andrew
Nolan (“Nolan”) was Acting Superintendent. Both Culkin
and Nolan assert that they did not initiate the discipline
leading up to Plaintiff's termination, did not participate in the
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pretermination hearing and played no role in the decision to
terminate Plaintiff, nor were they consulted by O'Connor for
their input regarding Plaintiff's discipline. (See Dkt. No. 98
at 8 [Decl. of Andrew Nolan at ¶ 49, June 13, 2013]; Dkt.
No. 100 at 5 [Decl. of Robert Culkin at ¶ 32, June 13, 2013].)
Plaintiff counters that he “personally observed [ ] O'Conn[o]r
go to [ ] Nolan and [ ] C[u]lkin for advice on how to perform
his duties as Commissioner.” (Dkt. No. 106 at 8 [Wright Aff.
¶ 42].)
Prior to his termination in February 2010, Plaintiff was
provided a copy of the notice of the disciplinary charges
against him as well as the possibility that termination would
be considered as a result. Plaintiff was afforded a disciplinary
hearing at which he was given the chance to respond to
the disciplinary charges against him and was permitted
to have union representation present to advocate on his
behalf. Simone was present at Plaintiff's disciplinary hearing.
Although Simone has the authority to advise regarding
discipline, his role at Plaintiff's hearing was as an observer
and gatherer of information.
Also, Plaintiff exercised his procedural right to grieve his
termination. That procedure ran its course according to the
grievance procedure set forth in the CBA and terminated
prior to the final step, when Local 400 voted not to take the
grievance to arbitration.
Plaintiff ultimately filed complaints with the New York State
Division of Human Rights (“DHR”) on March 26, 2010 and
April 28, 2010 challenging his February 2010 termination. 5
(See Dkt. No. 96–33 [Ex. GG to Thompson Decl.].) In
those complaints, Plaintiff alleges that he was suspended
and terminated based on his race and that he was retaliated
against for his prior DHR complaints. Plaintiff alleges that
white employees are treated differently than black employees
in terms of employee discipline. (See id.) On June 3, 2010
and June 10, 2010, respectively, the DHR dismissed those
complaints for administrative convenience. (See Dkt. No. 9'–
13 [Ex. L to Decl. of Aimee Paquette, June 14, 2013]; Dkt.
No. 96–34 [Ex. HH to Thompson Decl.].)
*5 After Plaintiff was terminated, he filed a claim for
unemployment benefits with the Department of Labor
(“DOL”). When the DOL inquired about the circumstances
of Plaintiff's termination, the City responded that he had
been terminated for cause. Plaintiff availed himself of
the administrative appeal process to challenge the DOL's
determination, which was ultimately overturned. Plaintiff
received full payment of back benefits owed.
C. Parties' Briefing on Defendants' Motion
1. Defendants' Memorandum of Law
Generally, in their memorandum of law, the Defendants assert
twelve arguments with regard to Plaintiff's claims against
them. (Dkt. No. 100–8 [Defs.' Mem. of Law].)
First, argue the Defendants, Plaintiff's employment
discrimination claims based on his termination may
be dismissed for the following three reasons: (1) the
discriminatory determination claim against Simone, Wright,
Culkin, Thompson and Nolan should be dismissed because
each was either not the decision maker or was not
otherwise actionably involved in the decision to terminate
Plaintiff; (2) the discriminatory determination claim against
O'Connor and the City should be dismissed because (a)
Plaintiff cannot make out a prima facie case that his
termination was discriminatory, (b) Defendants have come
forward with legitimate, nondiscriminatory reasons for
Plaintiff's termination, and (c) Plaintiff has no evidence that
Defendants' stated reasons for his termination are a pretext
for discrimination; and (3) absent individual liability for
discriminatory termination, no liability will lie against the
City pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690, n. 55, 98 S.Ct. 2018 (1978). (Id. at 14–25.)
Second, argue the Defendants, Plaintiffs 18th, 19th, 20th
and 21st causes of action alleging discrimination against
the City for opposing his application for unemployment
benefits may be dismissed for the following three reasons:
(1) there is caselaw supporting the legal conclusion that an
employer's opposition of a former employee's application
for unemployment benefits is not adverse employment
action; (2) where an employer opposes a former employee's
unemployment application, but the employee is ultimately
awarded those benefits, no adverse employment action occurs
in any event; and (3) Plaintiff cannot prove discriminatory
animus in the opposition of his unemployment application
because he failed to seek any discovery or deposition from the
City employee responsible for responding to DOL inquiries.
(Id. at 26–27.)
Third, argue the Defendants, Plaintiff's hostile work
environment claims may be dismissed as a matter of law
for the following five reasons: (1) Plaintiff's Title VII
and NYHRL claims of hostile work environment must be
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dismissed for failure to exhaust his administrative remedies
before the DHR; (2) Plaintiff's NYHRL claim must be
dismissed for failure to file a Notice of Claim under Section
8–115(2) of the City's Charter; (3) all of Plaintiff's hostile
work environment claims must be dismissed because Plaintiff
has failed to identify evidence that his workplace was
permeated with discriminatory intimidation, ridicule and
insult sufficiently severe or pervasive to alter the conditions
of his employment; (4) Plaintiff's hostile work environment
claims against Simone, O'Connor, Wright and Thompson
must be dismissed because there is a lack of evidence of
their personal involvement or discriminatory purpose; and (5)
absent individual liability, no liability will lie against the City
under Section 1981 or 1983 pursuant to Monell. (Id. at 27–
36.)
*6 Fourth, argue the Defendants, there is no claim for
discriminatory overtime in this action for the following
six reasons: (1) the Third Amended Complaint does not
include a claim for discriminatory overtime; (2) any claim for
discriminatory overtime under Title VII and NYHRL must
be dismissed for failure to exhaust administrative remedies
before the DHR; (3) any discriminatory overtime claim under
NYHRL must be dismissed for failure to file a Notice of
Claim under Section 8–115(2) of the City's Charter; (4)
Plaintiff cannot identify any evidence that he was denied
overtime due to discrimination; (5) Plaintiff cannot identify
any evidence that he was denied overtime because of his
race or protected activity; and (6) any claim of discriminatory
overtime against Simone, O'Connor, Wright and Thompson
must be dismissed because none of them was a decision
maker or involved in setting Plaintiff's alleged discriminatory
overtime assignments. (Id. at 36–43.)
Fifth, argue the Defendants, Plaintiff's discrimination and
retaliation claims based on less desirable work assignments
must be dismissed for the following five reasons: (1)
Plaintiff's claimed discriminatory work assignments fail
or do not constitute adverse employment action; (2) any
claim of discriminatory work assignments against Simone,
O'Connor, Wright and Thompson must be dismissed because
none of them was a decision maker or involved in
setting Plaintiff's alleged discriminatory work assignments;
(3) any claim for discriminatory work assignments under
Title VII and NYHRL must be dismissed for failure to
exhaust administrative remedies before the DHR; (4) any
discriminatory claim for discriminatory work assignments
under NYHRL must be dismissed for failure to file a Notice
of Claim under Section 8–115(2) of the City's Charter; and
(5) absent individual liability, no liability will lie against the
City under Section 1981 or 1983 pursuant to Monell. (Id. at
43–48.)
Sixth, argue the Defendants, Plaintiff's discriminatory and
retaliatory discipline claims must be dismissed for the
following six reasons: (1) Plaintiff's claim for discriminatory
and retaliatory discipline under Title VII and NYHRL must
be dismissed for failure to exhaust administrative remedies
before the DHR; (2) Plaintiff's claim for discriminatory and
retaliatory discipline under NYHRL must be dismissed for
failure to file a Notice of Claim under Section 8–115(2) of
the City's Charter; (3) some or all of Plaintiff's claims for
discriminatory and retaliatory discipline are barred by the
relevant statute of limitations; (4) Plaintiff cannot established
that the challenged disciplinary actions were premised on
discriminatory or retaliatory animus; (5) discriminatory
discipline claim against Simone, O'Connor, Nolan, Culkin
and Thompson must be dismissed because none of them was
a decision maker or involved in the discipline of Plaintiff; and
(6) absent individual liability, no liability will lie against the
City under Section 1981 or 1983 pursuant to Monell. (Id. at
48–57.)
*7 Seventh, argue the Defendants, Plaintiff's claims of
discriminatory and retaliatory denial of promotion may
be dismissed for the following six reasons: (1) Plaintiff's
claims for discriminatory denial of promotion under Title
VII and NYHRL must be dismissed for failure to exhaust
administrative remedies before the DHR; (2) Plaintiff's claim
for discriminatory denial of promotion under NYHRL must
be dismissed for failure to file a Notice of Claim under
Section 8–115(2) of the City's Charter; (3) Plaintiff's claims
for discriminatory denial of promotion under Title VII,
NYHRL and Section 1983 must be dismissed because they
are timebarred; (4) Plaintiff cannot establish that the claimed
promotions for which he was passed over were filled based
on discriminatory or retaliatory intent; (5) Plaintiff's claims
for discriminatory denial of promotion against Simone,
Nolan, Culkin, Thompson and O'Connor should be dismissed
because none of them was a decision maker or involved in
the alleged failure to promote Plaintiff to crew leader; and (6)
absent individual liability, no liability will lie against the City
under Section 1981 or 1983 pursuant to Monell. (Id. at 57–
67.)
Eighth, argue the Defendants, Plaintiff's breach of contract
claim must be dismissed because Plaintiff has failed to file a
claim against Local 400, which is a prerequisite to a breach
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of contract claim based on a union's breach of its duty of fair
representation. (Id. at 67–68.)
Ninth, argue the Defendants, Plaintiff's 15th and 16th causes
of action, brought under Section 1983 for violation of
his Fourteenth Amendment right to Due Process may be
dismissed because (1) municipal employees hold no due
process rights to promotions, overtime, discipline or work
assignments; and (2) a municipal employee's liberty interest
in keeping his employment is adequately served where there
is a process available to challenge the employer's deprivation,
such as a grievance procedure. (Id. at 68–70.)
Tenth, argue the Defendants, Plaintiff's 17th cause of action
for violations of the New York State Constitution must be
dismissed because no private right of action exists under the
New York State Constitution where a claim based on the same
allegations is asserted under Section 1983. (Id. at 70–71.)
Eleventh, argue the Defendants, Plaintiff's claim for punitive
damages must be dismissed because no such claim may be
maintained against the City as a matter of law and because
Plaintiff has failed to identify any evidence to establish that
the individual Defendants acted with evil motive or intent.
(Id. at 71.)
Twelfth, argue the Defendants, Plaintiff's claims against John
and Jane Doe defendants must be dismissed because Plaintiff
failed to identify them through amendment of his pleading
prior to the close of discovery. (Id.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in his opposition memorandum of law, Plaintiff
asserts eleven arguments: (1) because Plaintiff asserts claims
under the NYHZL and the New York State Constitution, this
Court should apply New York procedural law when deciding
the pending motion for summary judgment; (2) Defendants'
motion should be denied because there are triable issues
of fact to support Plaintiff's claims that he was unlawfully
discriminated against; (3) Defendants' arguments of failure
to exhaust should be rejected because they rely only on
the formal charges to the DHR rather than Plaintiff's intake
form and handwritten submissions; (4) Plaintiff's hostile
work environment claims should not be dismissed because
there is more than sufficient evidence for a reasonable jury
to conclude that Plaintiff's work environment was filled
with discriminatory intimidation, ridicule and insult that
the terms and conditions of his employment were altered
for the worse; (5) the City Charter's Notice of Claim
provision does not apply to Plaintiff's NYHRL claims;
(6) Plaintiff's claims relating to his unemployment benefits
should not be dismissed because the City's opposition of
Plaintiff's unemployment applications should be deemed
adverse employment action under Burlington N. & Santa
Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415
(2006); (7) Plaintiff has viable due process claims because the
CBA here only allows Local 400 to seek a post-termination
hearing through arbitration; (8) Plaintiff's breach of contract
claim should not be dismissed because it is a matter of fact
for the jury to decide whether Local 400 breached its duty
of fair representation; (9) Plaintiff's claims under the New
York State Constitution should not be dismissed because the
availability of a federal constitutional or statutory claim does
not render a claim under the New York State Constitution
subordinate; (10) Plaintiff's entitlement to punitive damages
is not suitable for resolution at the summary judgment stage;
and (11) Defendants lack standing to seek dismissal of the
John and Jane Doe defendants. (See Dkt. No. 104 [Pl.'s Opp'n
Memo. of Law].)
3. Defendants' Reply Memorandum of Law
*8 Generally, in their reply memorandum of law,
the Defendants assert eleven arguments: (1) Plaintiff
mischaracterizes his summary judgment burden; (2) Plaintiff
fails to meet his burden with respect to his wrongful
termination claim; (3) Plaintiff fails to oppose, and therefore
concedes, Defendants' argument that no claim exists based
on discriminatory overtime; (4) Plaintiff fails to meet his
burden on his discriminatory promotion claim; (5) Plaintiff
fails to meet his burden on his excessive discipline claim;
(6) Plaintiff fails to meet his burden on his hostile work
environment claim; (7) Plaintiff effectively concedes he has
no discriminatory assignments claim; (8) post-employment
contestation of unemployment benefits is not actionable; (9)
Plaintiff is barred from asserting a contract claim against the
City; (10) Plaintiff does not have a viable due process claim;
and (11) Plaintiff has failed to establish sufficient evidence to
support a Monell claim against the City. (Dkt. No. 124 [Defs.'
Reply Mem. of Law].)
II. GOVERNING LEGAL STANDARDS
A. Motion for Summary Judgment
A motion for summary judgment shall be granted “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine
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dispute as to a material fact exists, the Court must resolve
all ambiguities and draw all reasonable inferences against
the moving party. See Vermont Teddy Bear Co., Inc. v. 1–
800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct.
1598 (1970)). In addition, “[the moving party] bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the ... [record]
which it believes demonstrate[s] the absence of any genuine
issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323–
24, 106 S.Ct. 2548 (1986). However, when the moving party
has met this initial responsibility, the nonmoving party must
identify evidence in the record that creates a genuine issue of
material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986)).
As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505 (1986). “Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson, 477
U.S. at 248 (citation omitted).
As for the genuineness requirement, a dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the novmoving party.”
Id. As a result, “[c]onclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of
fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998)
(citation omitted; emphasis added). 6 Similarly, inadmissible
hearsay is insufficient to create a genuine issue of fact, “absent
a showing that admissible evidence will be available at trial.”
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp.,
769 F.2d 919, 924 (2d Cir.1985) (citations omitted). 7
B. Legal Standard Governing Unopposed Motions
*9 In this District, when a non-movant fails to oppose a
legal argument asserted by a movant in support of a motion,
the movant's burden with regard to that argument has been
lightened such that, in order to succeed on that argument,
the movant need only show that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(b) (3) (“Where a
properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein....”); Rusyniak
v. Gensini, 07–CV–0279, 2009 WL 3672105, at * 1, n.
1 (N.D.N.Y.Oct.30, 2009) (Suddaby, J.) (collecting cases);
Este–Green v. Astrue, 09–CV–0722, 2009 WL 2473509, at
*2 & n. 3 (N.D.N.Y.Aug.7, 2009) (Suddaby, J.) (collecting
cases).
C. Plaintiff's Claims
1. Title VII
Title VII prohibits an employer from “discriminat[ing]
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because
of,” inter alia, “such individual's race, color, religion, sex,
or national origin.” 42 U .S.C. § 2000e–2(a)(1). Liability
under Title VII is limited to employers, not individuals. See
Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012).
Filing a charge with the EEOC is a jurisdictional prerequisite
to a private civil action under Title VII. See Morgan v. NYS
Attorney Gen.'s Office, No. 11–CV–9389, 2013 WL 491525,
at *6 (S.D.N.Y. Feb. 8, 2013) (citing Chin v. Port Auth. of New
York & New Jersey, 685 F.3d 135, 146 (2d Cir.2012) (citing 42
U.S.C. §§ 2000e–5(e) (1), (f)(1))). Claims not raised before
the EEOC may still be brought in federal court as long as
they are “reasonably related” to the claims that were filed with
the agency. See id. (quoting Butts v. N.Y.C. Dep't of Hous.
Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir.1993), superseded
by statute on other grounds as recognized in Hawkins v.
1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.1998)). A claim
is “reasonably related” where the conduct complained of
“would fall within the scope of the EEOC investigation which
can reasonably be expected to grow out of the charge of
discrimination.” Butts, 990 F.2d at 1402. When determining
whether a claim is reasonably related to the claims filed with
the EEOC, courts should focus “on the factual allegations
made in the EEOC charge itself, describing the discriminatory
conduct about which a plaintiff is grieving,” and “whether
the complaint filed with the EEOC gave that agency adequate
notice to investigate discrimination on both bases.” Williams
v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir.2006)
(internal alteration and citation omitted). “[I]t is the substance
of the charge and not its label that controls.” Mathirampuzha
v. Potter, 548 F.3d 70, 76–77 (2d Cir.2008) (quoting Deravin
v. Kerik, 335 F.3d 195, 200–01 (2d Cir.2003)). “The central
question is whether the complaint filed with the [EEO] gave
th[e] agency adequate notice to investigate discrimination
on both bases.” Mathirampuzha, 548 F.3d at 76–77 (citing
Williams, 458 F.3d at70).
a. Hostile Work Environment
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*10 In enacting Title VII, Congress intended to protect
against “the entire spectrum of disparate treatment of men and
women in employment, which includes requiring people to
work in a discriminatorily hostile or abusive environment.”
Redd v. New York Div. of Parole, 678 F.3d 166, 174–175 (2d
Cir.2012) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,
114 S.Ct. 367 (1993)).
In order to establish a claim for a hostile work environment
under Title VII, the underlying harassment alleged “must
be sufficiently severe or pervasive,” both subjectively and
objectively, “to alter the conditions of [the plaintiff's]
employment and create an abusive working environment.”
Redd, 678 F.3d at 175 (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U .S. 57, 67, 106 S.Ct. 2399 (1986); Harris,
510 U.S. at 21–22, 114 S.Ct. 367). Further, the plaintiff must
establish that the hostile or abusive treatment was because of
his membership in a class of persons protected by Title VII.
See Redd, 678 F.3d at 175.
A determination of whether an environment is objectively
hostile or abusive requires an evaluation of all the
circumstances, such as “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance.” Redd, 678 F.3d at 175 (citing Harris, 510 U.S.
at 23, 114 S.Ct. 367). Whether an environment is subjectively
hostile or abusive may be determined by the effect on the
plaintiff's psychological well-being, although no single factor
is required. See id.
In order to establish his claim for hostile work environment,
a plaintiff need not show that his “working environment was
both severe and pervasive; only that it was sufficiently severe
or sufficiently pervasive, or a sufficient combination of these
elements, to have altered h[is] working conditions.” Redd,
678 F.3d at 175 (quoting Pucino v. Verizon Commc'ns, Inc.,
618 F.3d 112, 119 (2d Cir.2010)). Typically, isolated incidents
will not suffice to establish a hostile work environment,
“although we have often noted that even a single episode
of harassment can establish a hostile work environment if
the incident is sufficiently severe.” Redd, 678 F.3d at 175–
176 (citing, inter alia, Feingold v. New York, 366 F.3d 138,
150 (2d Cir.2004) (“[A] single act can create a hostile work
environment if it in fact work[s] a transformation of the
plaintiff's workplace.” (internal quotation marks omitted)).
“For racist comments, slurs, and jokes to constitute a hostile
work environment, there [generally] must be more than a few
isolated incidents of racial enmity.” Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir.1997) (quotation marks omitted).
It is important to keep in mind, however, that “while
the central statutory purpose of Title VII was eradicating
discrimination in employment, Title VII does not set forth
a general civility code for the American workplace.” Redd,
678 F.3d at 176 (quoting Franks v. Bowman Transp. Co., 424
U.S. 747, 771, 96 S.Ct. 1251 (1976); Burlington Northern
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct.
2405 (2006). Title VII is “meant to protect individuals from
abuse and trauma that is severe[, but is] not intended to
promote or enforce civility, gentility or even decency.” Taylor
v. New York City Dept. of Educ ., No. 11–CV–3582, 2012 WL
3150388, at *8 (E.D.N.Y. Aug. 2, 2012) (quoting Curtis v.
DiMaio, 46 F.Supp.2d 206, 213–14 (E.D.N.Y.1999)). Thus,
“the ‘mere utterance of an epithet which engenders offensive
feelings' is insufficient to sustain a hostile work environment
claim.” Tolbert v. Smith, 09–CV–6579, 2014 WL 906158,
at *19 (W.D.N.Y. Mar. 7, 2014) (quoting Hannon v. Wilson
Greatbatch, Ltd., No. 00–CV–0203, 2002 WL 1012971, *7
(W.D.N.Y. Apr. 24, 2002). See also Brown v. Coach Stores,
Inc., 163 F.3d 706 (2d Cir.1998) (occasional offensive racial
comments are not sufficiently severe or pervasive to establish
a hostile work environment).
*11 In addition to showing that he was subjected to a
hostile work environment, a plaintiff must also establish that
the conduct which created the hostile environment may be
imputed to his employer. See Shiner v. State Univ. of New
York, No. 11–CV–1024, 2012 WL 5398658, at *4 (W.D.N.Y.
Nov. 2, 2012) (citing Leopold v. Baccarat, Inc., 239 F.3d 243,
245 (2d. Cir.2001)).
The actions of a plaintiff's coworkers will be imputed to
the employer if the employer “either provided no reasonable
avenue for complaint or knew of the harassment but did
nothing about it.” Wiercinski v. Mangia 57, Inc., No. 09–CV–
4413, 2012 WL 2319142, at * 10 (E.D.N.Y. June 19, 2012)
(quoting Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243,
249 (2d Cir.1995)).
However, the actions of a plaintiff's supervisor are
“automatically imputed to the employer unless the employer
is able to successfully raise an affirmative defense that
examines the reasonableness of the conduct of both the
employer and the employee.” Shiner, 2012 WL 5398658,
at *4. This defense requires the employer to show that
it “exercised reasonable care to prevent and correct any
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harassing behavior” and that the plaintiff “unreasonably
failed to take advantage of any preventive or corrective
opportunities provided by the employer to avoid harm
otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775,
807, 118 S.Ct. 2275 (1998); Burlington Indus. v. Ellerth, 524
U.S. 742, 765, 118 S.Ct. 2257 (1998).
Where an employer “maintains a policy against [ ] harassment
and provides a process through which employees can
complain about violations of that policy,” it will have met
the first prong of its affirmative defense. Joyner v. City
of New York, No. 11–CV–4958, 2012 WL 4833368, at *3
(S.D.N.Y. Oct. 11, 2012). Further, where a plaintiff fails
to take advantage of that system until more than a year
after the alleged harassment began, and where the offensive
conduct ceased once plaintiff reported it, an employer will
establish the second prong of its defense. See Joyner, 2012
WL 4833368, at *3 (citing Leopold, 239 F.3d at 246).
b. Race Discrimination and Disparate Treatment
At the summary judgment stage, properly exhausted Title
VII claims are ordinarily analyzed under the familiar burden-
shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817 (1973), and its progeny. See
Mathirampuzha, 548 F.3d at 78 citing St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506–07, 113 S.Ct. 2742
(1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 252–53, 101 S.Ct. 1089 (1981)). At the first stage of the
McDonnell Douglas analysis, the plaintiff bears the burden
to show that “(1) he is a member of a protected class; (2)
he was qualified for the position he held; (3) he suffered
an adverse employment action; and (4) the adverse action
took place under circumstances giving rise to an inference
of discrimination.” Bir v. Pfizer, Inc., 510 F. App'x 29, 30
(2d Cir.2013) (quoting Reynolds v. Barrett, 685 F.3d 193,
202 (2d Cir.2012) (internal quotation marks and alteration
omitted)). “A showing of disparate treatment—that is, a
showing that the employer treated plaintiff less favorably than
a similarly situated employee outside his protected group—is
a recognized method of raising an inference of discrimination
for purposes of making out a prima facie case.” Mandell v.
County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003).
*12 In order to establish a prima facie case of discrimination
based on failure to promote under Title VII, a plaintiff
ordinarily must demonstrate that: “(1) [he] is a member of
a protected class; (2)[he] applied and was qualified for a
job for which the employer was seeking applicants; (3)[he]
was rejected for the position; and (4) the position remained
open and the employer continued to seek applicants having
the plaintiff's qualifications.” Yu v. New York City Housing
Development Corp., 494 F. App'x 122, 124–125 C.A.2 (2d
Cir.2012) (quoting Estate of Hamilton v. City of New York,
627 F.3d 50, 55 (2d Cir.2010) (quotation marks omitted).
Once a plaintiff establishes a prima facie case, the burden
shifts to the employer to provide a legitimate non-
discriminatory reason for the employment action at issue.
See Bir, 2013 WL 362973, at*1 (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097
(2000)). If the employer makes this showing, the burden
then shifts back to the plaintiff to show that the employer's
proffered explanation is a pretext for discrimination. Id.
(citing Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d
Cir.2010)).
“ ‘A plaintiff sustains an adverse employment action if he
or she endures a materially adverse change in the terms
and conditions of employment. To be materially adverse a
change in working conditions must be more disruptive than
a mere inconvenience or an alteration of job responsibilities.’
A change that is ‘materially adverse’ could consist of, inter
alia, ‘termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular
situation.’ “ Morgan, 2013 WL 491525, at *5 (quoting
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir.2000)).
c. Retaliation
To make out a prima facie case of retaliation under Title
VII, a plaintiff must show [the following]: (1) participation
in a protected activity known to Defendants; (2) an adverse
employment action; and (3) a causal connection between the
two.” Schanfield v. Sojitz Corp. of Am., 663 F.Supp.2d 305,
341 (S.D.N.Y.2009) (collecting cases).
“The term ‘protected activity’ refers to action taken to protest
or oppose statutorily prohibited discrimination.” Cruz v.
Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.2000) (noting
that a protected activity need not “rise to the level of a formal
complaint in order to receive statutory protection”). Protected
activities encompass “making complaints to management,
writing critical letters to customers, protesting against
discrimination by industry or by society in general, and
expressing support of co-workers who have filed formal
charges.” Sumner v. United States Postal Serv., 899 F.2d
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203, 209 (2d Cir.1990). A plaintiff “need not establish that
the conduct [he] opposed was in fact a violation of [the
law],” Bush v. Fordham Univ., 452 F.Supp.2d 394, 416
(S.D.N.Y.2006), but he must demonstrate a “good faith,
reasonable belief that the underlying challenged actions of
the employer violated the law,” id. (quoting Sumner, 899 F.2d
at 209). The reasonableness of a plaintiff's belief is to be
assessed in light of the totality of the circumstances. See Reed
v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996).
*13 Adverse employment action is any employer action
that “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington
N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct.
2405, 2415 (2006). “[T]ermination is an adverse employment
action.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169
(2d Cir.2006). Similarly, being laid off constitutes adverse
employment action. See Galabya, 202 F.3d at 640; Walker
v. City of New York, 98–CV–2695, 2002 WL 31051534, at
*4 (E.D.N.Y. July 22, 2002) (“Plaintiff's temporary lay-off
during the summer of 1997[was] sufficient to meet Plaintiff's
burden of putting forth evidence to show that the terms of her
employment were altered.”).
A plaintiff may establish a causal connection between the
protected activity and the adverse employment action “either
(1) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant[,] or (2) indirectly, by
showing that the protected activity was followed closely by
discriminatory treatment.” Schanfield, 663 F.Supp.2d at 343
(citing Knight v. City of New York, 303 F.Supp.2d 485, 496
(S.D.N.Y.2004)).
“Direct evidence giving rise to an inference of discrimination
may include ‘a showing that the employer criticized the
plaintiff's performance in ethnically degrading terms, made
invidious comments about others in the employee's protected
group, or treated employees not in the protected group more
favorably.’ “ Id. (quoting Hunter v. St. Francis Hosp., 281
F.Supp.2d 534, 542 (E.D.N.Y.2003)).
In order for a court to “accept mere temporal proximity
between an employer's knowledge of protected activity and an
adverse employment action as sufficient evidence of causality
to establish a prima facie case,” the temporal proximity
must be “very close.” Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 273, 121 S.Ct. 1508 (2001) (citing cases
finding temporal proximity of three months and more to be
insufficient).
Claims of retaliation under Title VII are governed by the
burden-shifting analysis announced in McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. 1817. See Guzman v. News Corp.,
No. 09–CV–9323, 2013 WL 5807058, at * 19 (S.D.N.Y. Oct.
28, 2013) (citing Fincher v. Depository Trust & Clearing
Corp., 604 F.3d 712, 720 (2d Cir.2010); Lennert–Gonzalez
v. Delta Airlines, Inc., No. 11–CV–1459, 2013 WL 754710,
at *9 (S.D.N.Y. Feb. 28, 2013)). See also Puglisi v. Town of
Hempstead, 545 F. App'x 23, ––––, 2013 WL 5663223 (2d
Cir. Oct. 18, 2013) (discussing Title VII retaliation claim in
context of McDonnell–Douglas burden-shifting framework).
“Under McDonnell Douglas, once the plaintiff has
established a prima facie case of retaliation, the burden of
production shifts to the defendant to proffer a legitimate,
nondiscriminatory business rationale to justify its adverse
employment action.” Schanfield, 663 F.Supp.2d at 343.
*14 If the employer demonstrates a legitimate, non-
discriminatory reason, then the burden shifts back to the
plaintiff to show that, ‘but for’ the protected activity, she
would not have been terminated. Univ. of Tex. Southwestern
Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013). The
Supreme Court recently clarified that ‘a plaintiff making
a retaliation claim under [Title VII] must establish that
his or her protected activity was a but-for cause of the
alleged adverse action by the employer,’ as distinct from
‘a motivating factor,’ which had previously been the
standard in the Second Circuit. Id. at 2534; see Kessler v.
Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 206
(2d Cir.2006).
Guzman, 2013 WL 5807058, at * 19. See also Puglisi, 2013
WL 5663223; Leacock v. Nassau Health Care Corp., No.
08–CV–2401, 2013 WL 4899723, at *11 (E.D.N.Y. Sept.
11, 2013); Wesley–Dickson v. Warwick Valley Cent. Sch.
Dist., ––– F.Supp.2d. ––––, ––––, 2013 WL 5338516, at *18
(S.D.N.Y.2013).
2. NYHRL
“Because New York courts require the same standard of proof
for claims brought under the NYHRL as for those brought
under Title VII,” those claims may be analyzed in tandem.
Leopold v. Baccarat, Inc. 174 F.3d 261, 264, n. 1 (citing
Tomka v. Seiler Corp., 66 F.3d 1295, 1304, n. 4 (2d Cir.1995),
abrogated on other grounds by Burlington Indus., 524 U.S.
742, 118 S.Ct. 2257). See also Salmon v. Our Lady of Victory
Hosp., 514 F.3d 217, 226, n. 2 (2d Cir.2008). Accordingly, a
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court's ruling regarding a plaintiff's Title VII claims applies
with equal force to those claims under the NYHRL. See
Leopold, 174 F.3d at 264, n. 1.
Under the NYHRL, however, a plaintiff may allege claims
against an individual defendant as an aider or abettor of
NYHRL violations. In order for a plaintiff to recover
against an aider or abettor of NYHRL violations, she must
establish “(1) that [ ]he engaged in conduct protected by
the NYHRL; (2) there is a causal connection between the
protected conduct and the alleged [violations] of the NYHRL;
and (3) that [the defendant] ‘actually participated’ in the
discrimination.” Beattie v. Guilderland Cent. Sch. Dist., 124
F.Supp.2d 802, 805 (N.D.N.Y.2000) (citations omitted). See
also N.Y. Exec. Law § 296.1(a) (McKinney 2012). Further,
a plaintiff must show that the defendant “aided or abetted
a primary violation of the NYHRL committed by another
employee or the business itself.” Jordan v. Cayuga Cnty.,
No. 01–CV1037, 2004 WL 437459, at *4 (N.D.N.Y. Feb. 9,
2004) (quoting Bennett v. Progressive Corp., 225 F.Supp.2d
190, 213 (N.D.N.Y.2002) (internal quotation and emphasis
omitted)). See DeJohn v. Wal–Mart Stores East, LP, No.
09–CV–1315, 2012 WL 3679204, at * 16 (N.D.N.Y. Aug.
17, 2012). However, an individual cannot be held liable for
aiding and abetting their own violations of the NYHRL.
See Reid v.. Ingerman Smith LLP, 876 F.Supp.2d 176, 186
(E.D.N.Y.2012). Finally, an employee is not individually
subject to suit as an aider or abettor under the NYHRL “if he
is not shown to have any ownership interest or any power to
do more than carry out personnel decisions made by others.”
Miotto v. Yonkers Public Schools, 534 F.Supp.2d 422, 427
(S.D.N.Y.2008) (quoting Patrowich v. Chemical Bank, 63
N.Y.2d 541, 483 N.Y.S.2d 659, 660, 473 N.E.2d 11 (1984)).
See also Tomka, 66 F.3d at 1317.
3. 42 U.S.C. § 1983
*15 In order to establish a claim pursuant to 42 U.S.C.
§ 1983, a plaintiff must show “(1) that some person has
deprived him of a federal right, and (2) that the person who has
deprived him of that right acted under color of state ... law.”
Velez v. Levy, 401 F.3d 75, 84 (2d Cir.2005) (quoting Gomez
v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920 (1980) (internal
quotations omitted)). “Section 1983 is not itself a source
of substantive rights[,] but merely provides a method for
vindicating federal rights elsewhere conferred[.]” Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689
(1979)).
“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award
of damages under § 1983.” Kregler v. City of New
York, 821 F.Supp.2d 651, 655–656 (S.D.N.Y.2011) (quoting
Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal
quotation marks omitted)). A plaintiff may allege the personal
involvement of a defendant who occupies a supervisory
position by alleging that the defendant: “(1) directly
participated in the infraction; (2) failed to remedy the wrong
after learning of the violation; (3) created a policy or custom
under which unconstitutional practices occurred, or allowed
such a policy or custom to continue; (4) was grossly negligent
in managing subordinates who caused the unlawful condition
or event; or (5) exhibited ‘gross negligence’ or ‘deliberate
indifference’ to the constitutional rights of [the plaintiff] by
having actual or constructive notice of the unconstitutional
practices and failing to act.” Kregler, 821 F.Supp.2d at 655–
56 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995);
Wright, 21 F.3d at 501).
A municipality may only be liable on a § 1983 claim “if
the deprivation of the plaintiff's rights under federal law is
caused by a governmental custom, policy, or usage of the
municipality.” Jones v. Town of East Haven, 691 F.3d 72,
80 (2d Cir.2012) (citing Monell v. Dep't of Soc. Servs., 436
U.S. 658, 690–91, 98 S.Ct. 2018 (1978)). In the absence of
such a custom or policy, a municipality may not be held
liable on a § 1983 claim for the actions of its employees
under a theory of vicarious liability. See Jones, 691 F.3d at 80
(citing Monell, 436 U.S. at 691, 98 S.Ct.2018). Thus, isolated
acts of municipal employees are typically not sufficient to
establish municipal liability. However, acts done “pursuant to
municipal policy, or [that] 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” would justify liability of the municipality. Jones,
691 F.3d at 81. Further, “a municipal custom, policy, or usage
would be inferred from evidence of deliberate indifference of
supervisory officials to such abuses.” Id.
a. First Amendment Retaliation
*16 “[T]he First Amendment protects a public employee's
right, in certain circumstances, to speak as a citizen addressing
matters of public concern.” Dillon v. Suffolk Cnty. Dep't
of Health Servs., 917 F.Supp.2d 196, 205 (E.D.N.Y.2013)
(quoting Garcetti v. Caballus, 547 U.S. 410, 417, 126
S.Ct. 1951 (2006)). In order to establish a claim for First
Amendment retaliation, a public employee must show that
(1) he engaged in “constitutionally protected speech” because
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he spoke as a citizen on a matter of public concern; (2) he
suffered an adverse employment action; and (3) the speech at
issue was a substantial or motivating factor in the decision.
Dillon, 2013 WL 208950, at *6 (quoting Johnson v.. Ganim,
342 F.3d 105, 112 (2d Cir.2003)). The threshold inquiry is
whether the employee spoke as a citizen on a matter of public
concern. “If the answer is no, the employee has no First
Amendment cause of action based on his or her employer's
reaction to the speech.” Garcetti, 547 U.S. at 418. “The
Supreme Court has defined ‘a matter of public concern’ as
one that ‘relat[es] to any matter of political, social, or other
concern to the community.’ “ Sousa v. Roque, 578 F.3d 164,
170 (2d Cir.2009) (quoting Connick v. Myers, 461 U.S. 138,
146, 103 S.Ct. 1684 (1983)).
In the context of a First Amendment retaliation claim, an
adverse action is any “retaliatory conduct that would deter
a similarly situated individual of ordinary firmness from
exercising his or her constitutional rights [.]” Zelnik v.
Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006).
Such actions can include “discharge, refusal to hire, refusal
to promote, demotion, reduction in pay, and reprimand,” or
may include “lesser actions” such as “negative evaluation
letters, express accusations of lying, assignment of lunchroom
duty, reduction of class preparation periods, failure to
process teacher's insurance forms, transfer from library to
classroom teaching as an alleged demotion, and assignment to
classroom on fifth floor which aggravated teacher's physical
disabilities.” Zelnik, 464 F.3d at 226 (quoting Morris v.
Lindau, 196 F.3d 102, 110 (2d Cir.1999)).
b. Equal Protection
A plaintiff may establish a claim for the violation of her
right to equal protection under the Fourteenth Amendment
based on race discrimination, since the Equal Protection
Clause is “essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985). “Once action
under color of state law is established, the analysis for such
claims is similar to that used for employment discrimination
claims brought under Title VII, the difference being that a §
1983 claim, unlike a Title VII claim, can be brought against
individuals.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d
Cir.2006) (quoting Feingold, 366 F.3d at159 & n. 20). Thus,
claims for hostile work environment and disparate treatment
may be brought under § 1983 as equal protection claims. See
Demoret, 451 F.3d at 149. However, a claim of retaliation for
complaining of race discrimination is not properly brought
under the Equal Protection Clause. See Bernheim v. Litt, 79
F.3d 318, 323 (2d Cir.1996).
c. Due Process
*17 The Due Process Clause of the Fourteenth Amendment
essentially provides that no state shall “deprive any person
of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1. Thus, in order to prevail on
a due process cause of action, a plaintiff must establish
the deprivation of some tangible property or liberty interest.
See Patterson v. City of Utica, 370 F.3d 322, 329–30 (2d
Cir.2004) (“stigma plus” claim requires a showing of the loss
of one's reputation coupled with a more tangible liberty or
property interest); DeMuria v. Hawkes, 328 F.3d 704, 705
(2d Cir.2003) (substantive due process claim requires plaintiff
to identify the deprivation of a protected liberty or property
interest, in addition to the requisite consciousshocking
behavior on the part of the government); McMenemy v. City of
Rochester, 241 F.3d 279, 285–286 (2d Cir.2001) (to establish
a procedural due process claim, plaintiff must show that he
possessed a protected liberty or property interest, of which he
was deprived without due process).
When an individual claims to have a property interest related
to employment, courts may look to the relevant contract
of employment-either explicit or implicit-or its functional
equivalent to determine whether the individual has such a
property interest. See Board of Regents v. Roth, 408 U.S. 564,
578, 92 S.Ct. 2701 (1972); Ciambriello v. County of Nassau,
292 F.3d 307, 314 (2d Cir.2002).
Where a government employee has a constitutionally
protected property interest in his employment, “some kind of
hearing [is required] prior to [termination].” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487 (1985)
(internal quotation marks and citation omitted).
However, in general, something less
than a full evidentiary hearing is
sufficient prior to adverse action.
Before being terminated, the tenured
public employee is entitled to oral or
written notice of the charges against
him, an explanation of the employer's
evidence, and an opportunity to
present his side of the story. As
long as a full post-termination hearing
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is provided for, the pre-termination
hearing may be minimal.
Arteta v. Cnty. of Orange, 141 F. App'x. 3, 7 (2d Cir.2005)
(citing Loudermill, 470 U.S. at 545–46, 105 S.Ct. 1487;
Locurto v. Safir, 264 F.3d 154, 173–74 (2d Cir.2001))
(quotations omitted).
It is a well-established legal principle in the Second Circuit
“that there is no [procedural] due process violation where ...
pre-deprivation notice is provided and the deprivation at
issue can be fully remedied through the grievance procedures
provided for in a collective bargaining agreement.” Adams v.
Suozzi, 517 F.3d 124, 128 (2d Cir.2008) (citing cases). See
also Coollick v. Hughes, 699 F.3d 211, 217 (2d Cir.2012).
A government employee may have a cause of action for
violation of his right to substantive due process where a
government defamation occurs in the course of dismissal
from employment resulting in a deprivation of a liberty
interest, commonly referred to as a stigma plus claim. See
Lawson v. Rochester City Sch. Dist., 446 F. App'x. 327, 329
(2d Cir.2011) (citing Patterson, 370 F.3d at 330). In order to
prevail on such a claim, a plaintiff must prove (1) the utterance
of a statement injurious to his reputation that is capable of
being proved false and that plaintiff claims is false; and (2)
some tangible and material state-imposed burden in addition
to the stigmatizing statement. See Monserrate v. N.Y. State
Senate, 599 F.3d 148, 158 (2d Cir.2010). “An employee's
liberty interest is not ordinarily implicated by statements in
connection with his termination of employment if there has
been no public disclosure of the reasons for the discharge.”
Walsh v. Suffolk Cnty. Police Dep't, 341 F. App'x 674, 675
(2d Cir.2009) (citing Bishop v. Wood, 426 U.S. 341, 348, 96
S.Ct. 2074, 48 (1976) (“Since the ... communication was not
made public, it cannot properly form the basis for a claim
that petitioner's interest in his ‘good name, reputation, honor,
or integrity’ was thereby impaired.”). Moreover, a plaintiff
cannot prevail on a substantive due process claim unless
he shows that the defendants infringed a liberty interest in
an arbitrary or irrational manner and in such a way as to
“shock the conscience.” Smith v. Half Hollow Hills Cent.
School Dist., 298 F.3d 168, 173 (2d Cir.2002). See also
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d
Cir.2001).
4. 42 U.S.C. § 1981
*18 Employment discrimination claims brought under
Section 1981, like those brought under Section 1983, are
subject to the same substantive standards as claims brought
pursuant to Title VII and NYHRL. See Jackson v. City of New
York, No. 11–CV–3028, 2014 WL 1010785, at *4 (E.D.N.Y.
Mar. 17, 2014). Procedurally, employment discrimination
claims brought pursuant to Sections 1981 and 1983 are also
analyzed under the McDonnell Douglas framework. See id. 8
Finally, Section 1981 claims against a municipality, like
Section 1983 claims, are subject to analysis under Monell. See
Lang. v. New York City Health & Hosps. Corp., No. 12–CV–
5523, 2013 WL 4774751, at * 5 (S.D.N.Y. Sept. 5, 2013).
5. New York State Constitution
Where claims are brought pursuant to the New York State
Constitution that mirror claims brought under Section 1983,
courts in this Circuit have held that there is no private right
of action on the state constitutional claims. See Canzoneri
v. Incorporated Vill. of Rockville Ctr., 2013 WL 6330671,
at *11 (E.D.N.Y. Dec. 5, 2013) (citing Krug v. Cnty. of
Rennselaer, 559 F.Supp.2d 223, 247–48 (N.D.N.Y.2008)).
See also Clayton v. City of Poughkeepsie, 2007 WL 2154196,
at *7 (S.D.N.Y. June 21, 2007) (quoting De Vito v. Barrant,
No. 03–CV–1927, 2005 WL 2033722, at *6–7 (E.D.N.Y.
Aug. 23, 2005)); Flores v. City of Mount Vernon, 41 F.Supp.2d
439, 446–47 (S.D.N.Y.1999).
II. ANALYSIS
A. Whether A Discriminatory Overtime Claim Exists
in This Action
After carefully considering the matter, the Court answers this
question in the negative, for the reasons stated by Defendants
in their memorandum of law. (Dkt No. 100–8 at 36–43
[Defs.' Mem. of Law].) To those reasons, the Court adds the
following points.
Plaintiff fails to plead a claim for discriminatory overtime in
his Third Amended Complaint. Moreover, Plaintiff has failed
to oppose Defendants' motion for summary judgment in this
regard. As indicated above in Point II.B. of this Decision and
Order, in this District, when a non-movant fails to oppose a
legal argument asserted by a movant in support of a motion,
the movant's burden with regard to that argument has been
lightened such that, in order to succeed on that argument,
the movant need only show that the argument possesses
facial merit, which has appropriately been characterized as
a “modest” burden. At the very least, Defendants have met
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the lightened burden that was created by Plaintiff's failure to
respond.
In any event, the Court would reach the same conclusion even
if it were to subject the Defendants' argument to the more
rigorous scrutiny appropriate for a contested argument. The
only evidence of Plaintiff being denied overtime occurred
in January 2006, before the period that is relevant to the
claims in this action. Moreover, the evidence reflects that
Plaintiff grieved the issue, which was resolved in his favor.
Accordingly, there is no evidence that Plaintiff endured a
materially adverse change in the terms and conditions of his
employment as it relates to overtime. Therefore, Defendants'
motion for summary judgment on any claim of discriminatory
or retaliatory denial of overtime is granted.
B. Whether Plaintiff's Claims Under Article I of the
New York State Constitution Must Be Dismissed
*19 After carefully considering the matter, the Court
answers this question in the affirmative, for the reasons stated
by Defendants in their memorandum of law. (Dkt No. 100–8
at 70–71 [Defs.' Mem. of Law].) To those reasons, the Court
adds the following points.
First, Plaintiff's purported claim under the New York State
Constitution is that Defendants deprived him of his rights
under Article I, essentially claiming a violation of the
entire Bill of Rights. Accordingly, Plaintiffs' New York
Constitutional claim is overly broad and therefore, should
be dismissed for failure to state a claim. In an abundance
of caution, the Court interprets Plaintiff's Third Amended
Complaint to allege claims under Article I, Sections 6 (due
process), 8 (freedom of speech), and 11 (equal protection).
Second, and in any event, as indicated above in Point II.C.5. of
this Decision and Order, where Plaintiff's state constitutional
claims mirror claims brought under Section 1983, courts
in this Circuit have held that there is no private right of
action on the state constitutional claims. Accordingly, for this
reason alone, Defendants' motion for summary judgment on
Plaintiff's 17th cause of action under the New York State
Constitution is granted.
C. Whether Plaintiff's Claims Against John Doe(s)
and Jane Doe(s) Must Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative, for the reason stated by
Defendants in their memorandum of law. (Dkt No. 100–8 at
71 [Defs.' Mem. of Law].) To that reason, the Court adds the
following point.
In opposition to Defendants' legally supported motion for
summary judgment seeking dismissal of the John and Jane
Doe defendants Plaintiff makes the bald and completely
unsupported assertion that Defendants “have no standing” in
that regard. (Dkt. No. 104 at 22 [Pl.'s Mem. of Law].) Plaintiff
does not dispute that discovery in this action, which lasted
in excess of two years, is complete, nor does he argue that
further discovery would reveal the identity of these unnamed
defendants. Accordingly, the completion of discovery and
Plaintiff's failure to identify the John and Jane Doe defendants
mandates their dismissal. See Epps v. City of Schenectady, No.
10–CV–1101, 2013 WL 717915, at *5 (N.D.N.Y. Feb. 27,
2013). Therefore, Defendants' motion for summary judgment
is granted in this regard.
D. Whether Plaintiff's Breach of Contract Claim
Against Defendants Must Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative, for the reason stated by
Defendants in their memorandum of law. (Dkt No. 100–8 at
67–68 [Defs.' Mem. of Law].) To that reason, the Court adds
the following point.
In opposition to Defendants' motion in this regard, Plaintiff
cites inapposite caselaw and fails to address the point made
by Defendants, which is that in order to pursue a breach of
contract claim against the City under the undisputed facts of
this case, Plaintiff must have also pursued a claim against
Local 400 for breach of the duty of fair representation. See
Lore v. City of Syracuse, 670 F.3d 127, 151 (2d Cir.2012).
Plaintiff fails to identify any such claim against Local 400,
nor has he alleged such a claim against Local 400 in
this action. Accordingly, the caselaw Plaintiff cites, for the
proposition that whether a union has breached its duty of
fair representation is a fact question for a jury to decide, is
irrelevant to the pending issue before the Court. (See Dkt.
No. 104 at 20 [Pl.'s Mem. of Law citing Smith v. Hussmann
Refrigerator Co., 619 F.2d 1229, 1244–45 (8th Cir.1980) ].)
Finally, it is worth noting that Plaintiff's misunderstanding of
the law in this regard is dubious considering the supporting
legal authority cited by Defendants, Lore v. City of Syracuse,
is a case out of the Second Circuit Court of Appeals, a party
to which was represented by Plaintiff's counsel in this action.
*20 Therefore, Defendants' motion for summary judgment
regarding Plaintiff's breach of contract claim is granted.
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E. Whether Plaintiff's Claims Alleging Discrimination
and Retaliation Due to the City's Contestation of His
Application for Unemployment Benefits Must Be
Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative, for the reasons stated by
Defendants in their memorandum of law in chief as well
as their reply memorandum of law. (Dkt No. 100–8 at 26–
27 [Defs.' Mem. of Law]; Dkt. No. 124 at 14–15 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following point.
Plaintiff opposes Defendants' motion in this regard,
arguing that the City's contestation of his application for
unemployment benefits was an adverse action. However,
Plaintiff concedes that his retaliation claims in this regard are
asserted solely against the City, despite the allegations in the
Third Amended Complaint.
Plaintiff acknowledges that courts disagree whether an
employer's decision to contest unemployment benefits
constitutes an adverse action, but cites only one case in
support of his argument that opposing unemployment benefits
is adverse action, ostensibly suggesting that this Court should
decide the issue here accordingly. See Brown v. JP Morgan
Chase Bank, No. 12–CV–544, 2013 U.S. Dist. LEXIS 95946,
at *21–22 (E.D.N.Y. Apr. 10, 2013). 9
Nonetheless, this Court finds instructive and persuasive the
caselaw holding that an employer's opposition of a terminated
employee's application for unemployment benefits is not
adverse action for purposes of a retaliation claim. See Burnett
v. Trinity Inst. Homer Perkins Ctr., Inc., No. 10–CV–681,
2011 WL 281023, at *3 (N.D.N.Y. Jan. 25, 2011) (citing
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466
(2d Cir.1997); U.S. v. N.Y. City Transit Auth., 97 F.3d
672, 677 (2d Cir.1996)). See also Belardo v. Con–Way
Transp. Servs., Inc., No. 02–CV5406, 2005 WL 885016,
at *8 (E.D.N.Y. Mar. 28, 2005) (“[A]n employer's actions
in objecting to the provision of unemployment benefits to
a former employee is not an adverse employment action
cognizable under the employment discrimination laws.”);
Jenkins v. St. Luke's–Roosevelt Hosp. Ctr., No. 09–CV–12,
2009 WL 3682458, at *9 (S.D.N.Y. Oct. 29, 2009) (granting
motion to dismiss retaliation claim regarding employer's
cessation of unemployment benefits); Barriera v. Bankers
Trust, No. 98–CV–3641, 2003 WL 22387099, at *7 (S.D.N.Y.
Oct. 20, 2003) (finding no adverse employment action where
employer opposed plaintiff's unemployment benefits claim,
failed to award severance pay, and informed the EEOC that
the plaintiff resigned); Roman v. Cornell Univ., 53 F.Supp.2d
223, 245 (N.D.N.Y.1999) (holding that employer's opposition
to plaintiff's unemployment benefits application does not
constitute an adverse employment action).
Therefore, Defendants' motion for summary judgment
regarding Plaintiff's retaliation claims as it relates to the City's
contestation of his unemployment benefits is granted.
F. Whether Plaintiff's Hostile Work Environment
Claims Must Be Dismissed
*21 After carefully considering the matter, the Court
answers this question in the affirmative, in part for the reasons
stated by Defendants in their memorandum of law in chief as
well as their reply memorandum of law. (Dkt No. 100–8 at
31–34 [Defs.' Mem. of Law]; Dkt. No. 124 at 12–14 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
Defendants point to Plaintiff's deposition testimony to
demonstrate the lack of evidence supporting Plaintiff's hostile
work environment claim. Specifically, Plaintiff testified that
he felt his employment environment was hostile because
nobody on his crew liked him nor would they communicate
with him, despite the fact that they never made any racial
comments to him. (See Dkt. No. 108 at 264–264 [Dep. of
Guynell Wright, Jan. 18, 2013].) Plaintiff further testified that
he felt like he was walking on egg shells at work because
he feared being disciplined for things that other people were
not disciplined for, and that despite being a victim when a
white employee lifted his leg up behind Plaintiff's head and
when another employee patted his butt, Plaintiff was still
disciplined. 10 (Id., at 267–268.) Defendants argue that these
instances do not rise to the level of severity or pervasiveness
to establish hostile work environment and that Plaintiff has
not established that the alleged hostile or abusive treatment
was because of his race.
Plaintiff, in opposition, fails to identify any evidence in the
record to create a question of fact on the issues of severity
or pervasiveness or the issue of whether the alleged hostile
treatment was because of his race. Instead, Plaintiff argues,
in conclusory fashion, that “there is more than sufficient
evidence for a reasonable jury to conclude that Plaintiff's work
environment was filled with discriminatory intimidation,
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ridicule and insult that the terms and conditions of his
employment were altered for the worse.” (Dkt. No. 104 at
12 [Pl.'s Mem. of Law].) Accordingly, Plaintiff has not met
his burden to identify any fact question for a jury to decide
regarding his hostile work environment claim and summary
judgment may be granted on this basis alone. However, in
an abundance of caution, the Court has reviewed the record
to identify any other evidence that could possibly support
Plaintiff's hostile work environment claim.
In his affirmation, Plaintiff states that when Nolan was
crew leader an employee called Plaintiff the N word in
Nolan's presence, but Nolan asked Plaintiff to shake the other
employee's hand to resolve the conflict, without disciplining
the other employee. (See Dkt. No. 106 at 10, ¶ 56 [Pl.'s Aff.].)
Plaintiff further asserts that, “[u]pon information and belief,
Department of Personnel employee Terri Macri has made
statements to other DPW employees that she does not approve
of mixed race babies.” (Id., ¶ 60.) Other evidence includes
Plaintiff's assertion that Nolan said that “no black man was
ever going to make anything on my watch” in 2007. (Id., at
8, ¶ 46.)
*22 To be sure, even assuming the admissibility of Plaintiff's
double hearsay statements attributable to Terri Macri, their
relevance is dubious considering they were made outside
the presence of Plaintiff. See, e.g., Greaves v. St. Luke's–
Roosevelt Hosp. Ctr., 03–CV–7424, 2005 U.S. Dist. LEXIS
4082, at *33 (S.D.N.Y. March 17, 2005) (rejecting plaintiff's
claim of hostile work environment because, “[w]ith the
exception of a single hearsay remark, made outside his
presence, Greaves fails to point to any discriminatory insult or
abuse”); cf. Benjamin v. Metro. Transp. Auth., 07–CV–3561,
2012 WL 3188764, at *12 (S.D.N.Y. Aug. 2, 2012) (“While
some of Benjamin's fellow Plaintiffs also make allegations
about a hostile work environment, the record does not indicate
that Benjamin was aware of any comments made to other
Plaintiffs, let alone was present to hear them and have them
impact his own work environment.”). Moreover, Plaintiff's
assertion regarding another employee calling him the N-
word in Nolan's presence is also of questionable relevance
because, while Plaintiff fails to state with specificity when the
statement was made, he asserts that it was made when Nolan
was a crew leader, which would have been prior to the relevant
time period at issue in this action. (See Dkt. No. 117, at 6 [Dep.
of Andrew Nolan, Jan. 8, 2013].)
Nonetheless, even assuming the truth, relevance and
admissibility of all of the aforementioned evidence, Plaintiff
still cannot identify a question of fact regarding his hostile
work environment claims. As indicated in Point II.C. 1.a.
of this Decision and Order, occasional offensive racial
comments are not sufficiently severe or pervasive in order
to establish a hostile work environment claim. Accordingly,
Defendants' motion for summary judgment on Plaintiff's
hostile work environment claims is granted.
G. Whether Plaintiff's Due Process Claims Must Be
Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated by
Defendants in their memorandum of law in chief as well
as their reply memorandum of law. (Dkt No. 100–8 at 68–
70 [Defs.' Mem. of Law]; Dkt. No. 124 at 15–16 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
First, the Court notes that the Third Amended Complaint
contains an allegation that “Plaintiff maintained a property
and liberty interest in his good name and reputation” which
was deprived by Defendants. (Dkt. No. 45 ¶¶ 103–104
[Pl.'s Third Am. Compl.].) In his papers in opposition to
Defendants' motion for summary judgment on his due process
claim, Plaintiff makes no mention of a liberty interest in his
reputation, nor does the record contain any evidence of an
offensive statement that was made public. Accordingly, to
the extent any substantive due process claim was intended by
Plaintiff, it is dismissed from this action.
Second, to the extent Plaintiff alleges a procedural due
process claim based on any employment action other than
termination, those claims are dismissed. Courts in this Circuit
hold that an employee does not have a constitutionally
protected interest to be free from employment actions other
than termination. See Barnes v, Pilgrim Psychiatric Ctr., 860
F.Supp.2d 194, 204 (E.D.N.Y.2012) (citing cases).
*23 Finally, regarding Plaintiff's termination, it is clear
that the grievance procedure set forth in the CBA provided
Plaintiff the appropriate pre-deprivation hearing as required
by the Due Process Clause. See Adams, 517 F.3d at
128. Regarding post-deprivation procedures, Plaintiff argues
that the CBA “replaces N.Y. Civil Service Law § 75
and any other procedures to challenge the termination of
employment.” (Dkt. No. 104 at 17 [Pl.'s Mem. of Law].) To
be sure, the CBA provides, in relevant part, that the grievance
procedure outlined therein “shall apply in lieu of Section
75 and 76 of the Civil Service Law for any employee who
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would be covered by those sections.” (Dkt. No. 96–2 at 52
[Ex. B to Thompson Decl.].) However, there is nothing in
the CBA or otherwise that prevents Plaintiff from seeking
a post-deprivation hearing. “[T]he availability of an Article
78 proceeding after the fact provides all the process that is
due.” Kruggel v. Town of Arietta, No. 11–CV–1250, 2013 WL
5304184, at *4 (N.D.N.Y. Sept. 19, 2013) (quoting Sebast v.
Mahan, 754 F.Supp.2d 423, 431–32 (N.D.N.Y.2010)).
For these reasons, Defendants' motion for summary judgment
regarding Plaintiff's due process claims is granted.
H. Whether Plaintiff's Claims Based on
Discriminatory Assignments Must Be Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated by
Defendants in their memorandum of law in chief as well as
their reply memorandum of law. (Dkt No. 100–8 at 43–45
[Defs.' Mem. of Law]; Dkt. No. 124 at 14 [Defs.' Reply Mem.
of Law].) To those reasons, the Court adds the following
analysis.
Plaintiff has failed to oppose Defendants' motion for summary
judgment in this regard. As indicated above in Point II.B.
of this Decision and Order, in this District, when a non-
movant fails to oppose a legal argument asserted by a movant
in support of a motion, the movant's burden with regard
to that argument has been lightened such that, in order to
succeed on that argument, the movant need only show that
the argument possesses facial merit, which has appropriately
been characterized as a “modest” burden. At the very least,
Defendants have met the lightened burden that was created
by Plaintiff's failure to respond.
In any event, the Court would reach the same conclusion
even if it were to subject the Defendants' argument to the
more rigorous scrutiny appropriate for a contested argument.
The receipt of undesirable work assignments must be
accompanied by a materially adverse change in employment,
such as demotion or loss of wages, in order to be actionable.
See Henry v. NYC Health & Hosp. Corp., No. 13–CV–
6909, 2014 WL 957074, at *5 (S.D.N.Y. Mar. 10, 2014).
Here, Plaintiff complains that “he and other Black employees
have been given less desirable assignments” such as those
requiring work outdoors in the hazardous weather. (See Dkt.
No. 42 at ¶ 28 [Pl.'s Third Am. Compl.].) At his deposition,
however, Plaintiff conceded that it was part of his job to go
out in the cold and shovel snow. (See Dkt. No. 108 at 116
[Pl.'s Dep.].) There is no evidence that such job assignments
were accompanied by a loss in job title or pay. Accordingly,
the alleged discriminatory job assignments cannot form the
basis of a discrimination or retaliation claim since they
were not materially adverse. Therefore, Defendants' motion
for summary judgment on any claim of discriminatory or
retaliatory reassignment of job duties is granted.
I. Whether Plaintiff's Claims Based on Discriminatory
Denial of Promotion Must Be Dismissed
*24 After carefully considering the matter, the Court
answers this question in the affirmative, in part for the reasons
stated by Defendants in their memorandum of law in chief
as well as their reply memorandum of law. (Dkt No. 100–8
at 57–67 [Defs.' Mem. of Law]; Dkt. No. 124 at 6–9 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
In support of his discriminatory failure to promote claim,
Plaintiff alleges that he asked Defendants Nolan and Wright
for promotions and that, when asked why he did not promote
black employees, Nolan responded, “A black man will never
make anything on my watch.” (See Dkt. No. 42 at ¶¶ 26–27
[Pl.'s Third Am. Compl.].)
The following facts are undisputed. The opportunities for a
pay grade promotion just above Plaintiff's job title, Laborer
I, include Laborer II, Motor Equipment Operator (“MEO”)
I and MEO II, all of which are within Plaintiff's bargaining
unit. Each of these positions require a Commercial Driver's
License (“CDL”), which Plaintiff never sought. Plaintiff
also never applied for any of these pay grade promotions.
The title of “Crew Leader” is a position within the Street
Cleaning Bureau, which falls under a separate CBA between
the AFSCME 1773 and the City. (See Dkt. No. 96–7 [Ex.
G to Thompson Decl.].) Under that CBA, all Crew Leader
vacancies must be advertised and filled by qualified Local
1773 members before being offered to members of other
bargaining units, such as Local 400.
Although the City has no record of Plaintiff ever having
applied for a Crew Leader position, Plaintiff asserts that
between 2006 and 2010, whenever a bid was posted for a
Crew Leader position, he submitted an application, but was
never promoted to Crew Leader. However, at his deposition,
when asked what positions he put in a bid for between 2006
and 2010, Plaintiff replied that he “put in a bid for a crew
leader” and later that he bid for “a couple of” and “more
than one bid” for Crew Leader. (Dkt. No. 108 at 96, 99.) 11
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Plaintiff went on to explain that there was one Crew Leader
position in Sanitation, and another in Street Cleaning. Plaintiff
said that Sanitation position went to Efren Maldonado, who
had previously worked in Street Cleaning and Sanitation, and
the other position went to Thomas Rubado, who came from
the Aviation Department. Finally, when asked what reason he
has to believe he did not get those jobs because of his race,
Plaintiff testified that he believes he didn't get those positions
because “they didn't like me.” (Id. at 105.)
According to Jeffrey Wright, who was Commissioner through
the end of 2009, the only Crew Leader positions that he
appointed in the Street Cleaning Bureau during his tenure
were filled by existing Local 1773 members, Thomas Rubado
and Richard Shepherd. Since both were qualified, the position
would not have been opened to other bargaining units. The
only non Local 1773 member who filled a Crew Leader
position during Wright's tenure was Efran Maldonado, a
minority who was an MEO at the time of his promotion. Also,
that position opened in the Department of Sanitation in 2006
and had entirely different job responsibilities than that of the
Street Cleaning Bureau. (See Dkt. No. 97 at ¶¶ 48–49 [Decl.
of Jeffrey Wright, June 13, 2013].)
*25 Nolan, Superintendent, asserts that he was not
involved in formal hiring decisions, which are made by the
Commissioner. (See Dkt. No. 98 at ¶ 13 [Decl. of Andrew
Nolan, June 13, 2013].) Plaintiff disputes this, citing Nolan's
promotion of Ray Garcia to the vacant position of “acting
crew leader” in 2007. It was at that time that, Plaintiff asserts,
Nolan made the comment that “no black man was ever going
to make anything on my watch.” (Dkt. No. 106 at ¶¶ 44–46
[Pl.'s Aff.].)
Jeffrey Wright, who was Commissioner through 2009, affirms
that, in the day-to-day operation of the Street Cleaning
Bureau, it becomes necessary to name an acting Crew Leader
if the actual Crew Leader is out sick or on vacation. These
positions are temporary and are made by the Superintendent,
not the Commissioner. (See Dkt. No. 97 at ¶ 51 [Jeffrey
Wright Decl.].) Wright further affirmed that “at some point
in 2007,” Plaintiff came to Wright and told him that he
should be considered for promotion to Crew Leader; not for
a specific opening, but more generally in the future. Then
Commissioner Wright explained to Plaintiff that he needed
to make himself more competitive, “including obtaining his
CDL and applying for some of the intermediate positions such
as Laborer II and MEO.” (Id., at ¶ 50.) Wright explained
that, “[i]n other words, since a Crew Leader must supervise
laborers and heavy equipment and motor vehicle operators
and be familiar with the operation of all of the equipment in
the Bureau, it helps to have experience actually performing
those jobs and operating that equipment.” (Id.)
At his deposition, Plaintiff explains that he was told by Bobby
Reed, a supervisor, that “next week you are going to be the
acting crew leader” but then when that week arrived, Ray
Garcia was the acting crew leader. (Dkt. No. 108 at 106–107
[Pl.s' Dep.].) Plaintiff agreed “that an acting crew leader is
someone who is working out of title for a short period of time
while somebody is either on medical leave or vacation.” (Id.
at 107:9–14.) Plaintiff also explained that during this short
period of time, the acting crew leader is paid at the Crew
Leader rate. Plaintiff testified that he felt that Nolan gave
Ray Garcia the acting crew leader position because of racial
animosity toward Plaintiff due to Nolan's comment that a
black man wasn't going to make anything on his watch. (Id.
at 108.) Plaintiff clarified that Nolan made this comment after
he made Ray Garcia acting crew leader. (Id.)
In his opposition to Defendants' motion, Plaintiff cites one
factual question that he argues warrants a denial of summary
judgment. Specifically, Plaintiff argues that there is a question
of fact regarding whether Nolan made the statement that no
black man will ever make anything on his watch. Moreover,
Plaintiff contends that even where Nolan was not the decision
maker, under a Cat's Paw theory of liability, his racial animus
may be imputed to the decision maker.
*26 As indicated in Point II.C. 1.b. of this Decision
and Order, Plaintiff bears the burden at trial to show
that (1) he is a member of a protected class; (2) he
was qualified for the position he held; (3) he suffered an
adverse employment action; and (4) the adverse action took
place under circumstances giving rise to an inference of
discrimination. See Bir v. Pfizer, Inc., 510 F. App'x 29, 30
(2d Cir.2013). In order to establish a prima facie case of
discrimination based on failure to promote, Plaintiff must
show that “(1) [he] is a member of a protected class; (2)
[he] applied and was qualified for a job for which the
employer was seeking applicants; (3)[he] was rejected for
the position; and (4) the position remained open and the
employer continued to seek applicants having the plaintiff's
qualifications.”
Plaintiff cannot establish a prima facie case of discriminatory
failure to promote for several reasons. First, there is evidence
that Plaintiff was not qualified to be a Crew Leader, given
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his lack of experience and failure to obtain a CDL, which
Plaintiff does not dispute. Next, as it relates to Plaintiff's claim
that Defendants failed to promote him, instead promoting Mr.
Rubado and Mr. Maldonado, to vacant Crew Leader positions,
there is absolutely no evidence of racial animus underlying
the decision to promote Mr. Rubado and Mr. Maldonado. In
fact, Plaintiff testified that he was not promoted to either of
these positions because “they didn't like me” but then later
also testified that Mr. Rubado and Mr. Maldonado were in
a position to get those jobs. (Dkt. No. 108 at 105, 106.)
Moreover, even if Plaintiff could establish a prima facie case
of discrimination on this basis, Defendants have identified
legitimate, non-discriminatory reasons, which Plaintiff does
not dispute, for promoting Mr. Rubado and Mr. Maldonado
rather than Plaintiff: those gentlemen were qualified for the
position and were members of Local 1773, which, pursuant to
the CBA, required that the City promote them before opening
the position up to members of other bargaining units, such
as Local 400. Given the lack of evidence regarding racial
animus attached to those promotions, Defendants are entitled
to summary judgment in that regard.
Regarding Nolan's assignment of Ray Garcia to a temporary,
acting crew leader position instead of Plaintiff, the Court
notes that it is questionable whether such an assignment may
be considered a promotion. See Petrosino v. Bell Atlantic, 385
F.3d 210, 229 (2d Cir.2004) (concluding that an assignment to
substitute for an absent supervisor generally cannot fairly be
labeled a promotion). Nonetheless, Plaintiff does not identify
any evidence suggesting that he was qualified for the acting
crew leader position, while Mr. Garcia, who was an MEO
II, three positions ahead of Plaintiff, was clearly qualified.
Because Plaintiff cannot show that the acting crew leader
position was given to someone less qualified than him, he
cannot establish a prima facie case of discrimination based on
failure to promote.
*27 For these reasons, Defendants' motion for summary
judgment on Plaintiff's claims based on failure to promote is
granted.
J. Whether Plaintiff's Claims Based on Discriminatory
Discipline Must Be Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated by
Defendants in their memorandum of law in chief as well
as their reply memorandum of law. (Dkt No. 100–8 at 48–
577 [Defs.' Mem. of Law]; Dkt. No. 124 at 9–12 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following point.
Plaintiff has not identified any evidence of discriminatory or
retaliatory animus based on his race as it relates to discipline.
The sole question of fact Plaintiff identifies, which is whether
Nolan stated in 2007 that no black man would get promoted
on his watch, is irrelevant to the disciplinary actions taken
against Plaintiff. It is undisputed that the only Defendant who
was the decision maker regarding the disciplinary actions
against Plaintiff was Commissioner Wright. 12 Moreover,
other than a bald and unsupported assertion by Plaintiff
in his response to Defendants' Local Rule 7.1 statement,
there is no evidence that Nolan had anything to do with the
Commissioner's decision to discipline Plaintiff. Finally, there
is absolutely no evidence of racial animus or bias on behalf
of Commissioner Wright against Plaintiff.
Moreover, for the reasons stated in Defendants' memoranda,
Plaintiff has failed to adduce any evidence that similarly
situated white employees were treated more favorably than
Plaintiff in terms of discipline. (See Dkt. No. 100–8 at 51–55
[Defs.' Mem. of Law].)
For these reasons, Defendants' motion for summary
judgment on Plaintiff's claims regarding discriminatory and/
or retaliatory discipline is granted.
K. Whether Plaintiff's Claims Based on
Discriminatory Termination Must Be Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative, in part for the reasons stated
by Defendants in their memorandum of law in chief as
well as their reply memorandum of law. (Dkt No. 100–8 at
14–25 [Defs.' Mem. of Law]; Dkt. No. 124 at 2–6 [Defs.'
Reply Mem. of Law].) To those reasons, the Court adds the
following analysis.
Plaintiff has not identified any evidence of discriminatory
or retaliatory animus based on his race as it relates to his
termination. The sole question of fact Plaintiff identifies,
which is whether Nolan stated in 2007 that no black man
would get promoted on his watch, is irrelevant to Plaintiff's
termination. The evidence reflects that Defendant O'Connor,
who was Commissioner at the time, made the decision
to terminate Plaintiff. Even assuming that Defendants
Thompson and Simone advised or encouraged O'Connor to
terminate Plaintiff, there is no evidence of racial animus or
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bias on behalf of O'Connor, Thompson 13 or Simone against
Plaintiff.
The only person that Plaintiff has identified as having racial
animus is Nolan. Nolan affirms that he did not initiate
the discipline leading up to Plaintiff's termination, did not
participate in the pre-disciplinary hearing and played no
role in the decision to terminate Plaintiff. Nolan further
affirms that O'Connor did not ask for his input regarding
the termination. (See Dkt. No. 98 at ¶ 49 [Nolan Decl.].)
O'Connor affirms that he was the sole decision maker in the
determination to terminate Plaintiff. (See Dkt. No. 99 at ¶ 36
[Decl. of John M. O'Connor, III, June 13, 2013].). In making
the decision to terminate Plaintiff, O'Connor states that he
relied upon
*28 (a) the Police Report and the
statements Guynell Wright made to
the police that he knew he was
violating DPW policy; (b) the fact
that Guynell Wright was in the last
stage of disciplinary progression; (c)
the fact that Guynell Wright had
been previously received significant
discipline in 2007 for near identical
conduct; and (d) a review of Guynell
Wright's prior “thick” disciplinary file
which reflected numerous prior major
and minor violations and demonstrated
a pattern of misconduct over time.
(Id. at ¶ 37.) In his response to Defendants' Local Rule 7.1
Statement of Material Facts, Plaintiff denies the assertion that
Nolan did not initiate the discipline leading up to Plaintiff's
termination, did not participate in the pre-disciplinary hearing
and played no role in the decision to terminate Plaintiff. (See
Dkt. No. 105 at ¶ 47 [Pl.'s Rule 7.1 Response Statement].) In
support of his purported denial, Plaintiff cites his affirmation
that he personally observed O'Connor go to Nolan and Culkin
for advice on how to perform his duties as Commissioner. (See
Dkt. No. 106 at ¶ 42 [Pl.'s Aff.].) Plaintiff has failed to identify
any evidence of Nolan's participation in his termination, either
directly or by communication or encouragement of a decision
maker.
For these reasons, Defendants' motion for summary judgment
as it relates to Plaintiff's claims for discriminatory and/or
retaliatory termination is granted.
Finally, the Court notes that Plaintiff has identified no
evidence of a causal connection between his DHR complaints
and the alleged adverse actions. There is no direct evidence of
retaliatory motive on behalf of any decision maker. Moreover,
there is no temporal proximity between Plaintiff's complaints
and the adverse actions. For example, Plaintiff complained
to DHR in March 2008, but the next adverse action did not
occur until January 2009. Also, Plaintiff was terminated an
entire year after his February 2009 DHR complaint. For these
reasons, in addition to those asserted by Defendants in their
memoranda of law, Plaintiffs' retaliation claims are dismissed.
Because the Court dismisses Plaintiff's claims for the absence
of a question of material fact as to the substantive elements
of those claims, the Court need not address the remainder
of Defendants' arguments for dismissal, such as failure to
exhaust and failure to file a notice of claim.
ACCORDINGLY, it is
ORDERED that the Defendants' motion for summary
judgment (Dkt. No. 95) is GRANTED; and it is further
ORDERED that Plaintiff's claims are dismissed with
prejudice. The clerk is directed to enter judgment in favor of
the defendants and close this case.
All Citations
Not Reported in F.Supp.3d, 2014 WL 1293527
Footnotes
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1 Conclusions of law in a Local Rule 7.1 Statement, even where unopposed, are not deemed admitted. See
Johnson v. Enu, No. 08–CV–158, 2011 WL 3439179, at *1 (N.D.N.Y. July 13, 2011) (Homer, M .J.), adopted
in its entirety by, 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011) (Scullin, J.).
2 Plaintiff asserts that he began working for the City on October 3, 1988 as a “Laborer I” for the Department's
Sanitation Bureau. (See Dkt. No. 108, at 44–45 [Dep. of Guynell Wright, Jan. 18, 2013].) However, events
which occurred prior to June of 2006 are irrelevant to the resolution of the pending motion since the longest
statute of limitations applicable to any of the claims in this action is four years. See James v. Countrywide
Fin. Corp., 849 F.Supp.2d 296, 317–318 (E.D.N.Y.2012) (finding that four-year statute of limitations set forth
in 28 U.S.C. § 1658(a) applies to employment discrimination and retaliation claims brought pursuant to 42
U.S.C. § 1981); Asanjarani v. City of New York, No. 09–CV–7493, 2011 WL 4343687, at * 10 (Aug. 18,
2011) (statute of limitations for employment discrimination claims brought pursuant to Section 1983 is three
years); Ruggerio v. Dynamic Elec. Sys. Inc., No. 12–CV–100, 2012 WL 3043102, at *6 (E.D.N.Y. Jul. 25,
2012) (citing 42 U.S.C. § 2000e–5(e)(f)) (claims are timely under Title VII if an administrative complaint is
filed within 300 days of the alleged discriminatory act, and a judicial action is filed within 90 days of receipt of
a rightto-sue letter by the administrative body); Sloth v. Constellation Brands, Inc., 883 F.Supp.2d 359, 373
(W.D.N.Y.2012) (citing N.Y.C.P.L.R. § 214(2) (McKinneys 2008)) (under Section 296, the limitations period
runs for three years from the date on which an action asserting NYHRL violations is filed, but this limitations
period is tolled for the period between the filing of an administrative charge and the issuance of a right-to-
sue letter).
3 Plaintiff filed a complaint with the New York State Division of Human Rights (“DHR”) on March 3, 2008, in
which he argued that his 20–day suspension by the City for fighting was disparate treatment based on race.
On August 18, 2008, DHR dismissed the complaint based on a lack of probable cause. (See Dkt. Nos. 96–
29 and 96–30 [Exs. CC and DD to Thompson Decl.].)
4 Plaintiff ostensibly filed a complaint with DHR on February 18, 2009, charging the City with race discrimination
due to his termination. The DHR later dismissed the complaint citing a lack of evidence of unlawful
discrimination. (See Dkt. No. 96–31 [Ex. EE to Thompson Decl.].)
5 Plaintiff's complaints were cross-filed with the United States Equal Employment Opportunity Commission
(“EEOC”).
6 As the Supreme Court has famously explained, “[the nonmoving party] must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 585–86, 106 S.Ct. 1348 (1986) (citations omitted).
7 Plaintiff's counsel argues that here, this Court must apply the “universal” rule in the courts of the State of New
York that allows a non-moving party to successfully oppose summary judgment with evidence that would be
inadmissable at trial because some of Plaintiff's claims arise under New York law. (See Dkt. No. 104 at 1–2
[Pl.'s Mem. of Law].) Without commenting on the veracity of Plaintiff's counsel's interpretation of New York law
in this regard, the Court notes that it is by now very well-settled law that “[t]he issue of what burden a movant
for summary judgment bears when the ultimate burden of proof lies with the non-movant is procedural rather
than substantive, under the distinction created by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938)
and its progeny, and accordingly is subject to federal rather than state law .” Tingling v. Great Atl. & Pac.
Tea Co., 02–CV–4196, 2003 WL 22973452, *2 (S.D.N.Y. Dec. 17, 2003), citing Erie R. Co. v. Tompkins. 304
U.S. 64, 58 S.Ct. 817 (1938) and Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986) (applying federal
law on defendant's burden at summary judgment stage to diversity action).
8 “The primary doctrinal differences between Title VII claims and employment discrimination claims pursuant
to Sections 1981 and 1983 regard (1) the statute of limitations, (2) the requirement that Section 1981 or 1983
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Wright v. City of Syracuse, Not Reported in F.Supp.3d (2014)
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plaintiffs must show employment discrimination pursuant to an official policy or custom, (3) that individuals
may be held liable under Sections 1981 and 1983, but not under Title VII, and (4) a Title VII claim may
be established through proof of negligence, whereas Section 1981 and 1983 claims must be supported by
evidence of intentional discrimination.” Jackson v. City of New York, No. 11–CV–3028, 2014 WL 1010785,
at *4, n. 10 (E.D.N.Y. Mar. 17, 2014) (citing Patterson, 375 F.3d at 225–227).
9 Although, as Defendants point out, this decision is a Report and Recommendation that was later vacated,
the case was thereafter reassigned to another District Judge who adopted the Report and recommendation
in full. See See Brown v. JP Morgan Chase Bank, No. 12–CV544, 2013 U.S. Dist. LEXIS 109700 (E.D.N.Y.
Aug. 5, 2013).
10 Regarding these incidents of discipline, the Court notes Plaintiff's affirmation that in 1997, another black
employee slapped his bottom in the restroom, which resulted in two separate physical altercations between
Plaintiff and this other employee: one in the restroom and another later in the day when Plaintiff was on
his way home from work. Plaintiff asserts that both he and the other employee were disciplined as a result.
(See Dkt. No. 106 at 2, ¶ 8 [Pl.'s Aff.].) Plaintiff further asserts that in February 2007, Stanley Gardynski,
a white employee, made humping motions with his groin at Plaintiff's head. Plaintiff admits that afterward,
when Gardynski was provoking him again, Plaintiff hit him. Both Plaintiff and Gardynski were disciplined as
a result. (Id. at 3, ¶ 13.)
11 Plaintiff also put in a bid for a gardener position in the Parks and Recreation Department.
12 In his response to Defendants' Local Rule 7.1 Statement of Material Facts, Plaintiff denies that Nolan was not
the decision maker regarding the discipline he received between 2006 and 2009. (See Dkt. No. 105 at ¶ 68
[Pl.'s Rule 7.1 Response Statement] .) In support of this purported denial, Plaintiff asserts that Commissioner
Wright relied on Defendants Nolan and Culkin to make the final determination regarding discipline. However,
Plaintiff cites a portion of his deposition testimony that does not support this assertion. Accordingly, this fact
is deemed admitted.
13 At his deposition, Plaintiff testified that he did not believe that O'Connor or Thompson decided to terminate
him because he is black. (See Dkt. No. 108 at 222 [Pl.'s Dep.].) Plaintiff testified that he thought Thompson
retaliated against him for making complaints of discrimination because Thompson “never helped me out”
when Plaintiff would go to him with problems. (Id. at 222–223.) Finally, at his deposition, Plaintiff testified that
the only involvement Simone had was being present at meetings and that “[h]e didn't do anything, really.” (Id.
at 247.)
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