Orsell v. City of Gloversville et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
KAYLA ORSELL,
Plaintiff, 	1:25-CV-0963
v. 	(GTS/PJE)
CITY OF GLOVERSVILLE, et al.,
Defendants.
_____________________________________
APPEARANCES:
Kayla Orsell
81 ½ Chestnut Street
Johnstown, New York 12095
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION & ORDER
Plaintiff pro se Kayla Orsell1 commenced this action on July 18, 2025, with the
filing of a complaint and applications for leave to proceed in forma pauperis. See Dkt.
No. 1 (“Compl.”), Dkt. Nos. 2, 6, 11. She has also filed various other motions for relief:
a motion to file electronically, a motion compel the United States Marshals to come to
her residence to retrieve evidence, a Motion to Appoint Counsel, a Motion for a
1 	Plaintiff has commenced other actions in this District. See 1:25-cv-00961-MAD-TWD, Orsell v. Orsell,
et al.; 1:25-cv-00962-ECC-DJS (administratively closed 7/22/25); 1:25-CV-0962 (ECC/DJS), Orsell v.
Fulton County Probation Department, et al. (Report-Recommendation & Order recommending dismissal
pending); 1:25-cv-01456-BKS-TWD, Orsell v. Spychalski, et al. (administratively closed 10/24/25); 9:25-
cv-01455-AJB, Orsell v. Emery (habeas corpus, administratively closed 10/23/25); 9:24-cv-01389-LEK,
Orsell v. Spychalski et al. (habeas corpus, pending).
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Preliminary Injunction,2 and a Motion to Seal the Record.3 See Dkt. Nos. 3, 4, 10, 12,
13. The Court has reviewed plaintiff’s various in forma pauperis applications and
concludes that she financially qualifies to proceed in forma pauperis.4 See Dkt. Nos. 1,
6, 11. As the undersigned has granted plaintiff’s IFP application, a review of her
complaint pursuant to 28 U.S.C. §§1915(e)(2), §1915A is required.5
III. Legal Standards: Initial Review
28 U.S.C. § 1915 provides 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). A court’s initial
screening of a complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) does not
preclude a later dismissal pursuant to Rule 12(b)(6).” Tisdale v. Hartley, 442 F. Supp.
3d 569, 572-73 (W.D.N.Y. 2020).
2 This motion is pending before District Court Judge Anne Nardacci.
3 Plaintiff also filed a document entitled, “Chronological Statement of Facts and Exhibits Regarding the
Estate of Michael Orsell and Related Property Irregularities.” Dkt. No. 9. On the envelope of this filing, it
is written “Filing in Support of all Current Cases.” Dkt. No. 9-16. 	This filing is not related to the claims
plaintiff raises in her complaint. It is unclear what relief, if any, plaintiff seeks through this filing. See Dkt.
No. 9. Plaintiff also submitted a letter regarding a USB filing that appears to relate to other actions she
has in this District as well as allegations that appear to relate to her claim of mail fraud in this action. 	See
Dkt. No. 8.
4 	Plaintiff is advised that, despite being granted in forma pauperis status for this action, all plaintiffs who
are granted such status are still fully responsible for any costs and fees they incur in association with their
cases, including, but not limited to, copying fees, witness fees, and transcription fees.
5 Despite the statutory language referring to incarcerated individuals, these requirements apply equally to
non-prisoner pro se litigants seeking to proceed in forma pauperis. 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.”).
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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 and citation omitted). As the Second Circuit stated,
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). 	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) (“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.”).
Further, “pro se pleadings still must comply with . . . the Federal Rules of Civil
Procedure.”6 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));7 see also
FED. R. CIV . P. 8(a)(2) (providing that a pleading shall contain “a short and plain statement
6 Hereinafter, “Fed. R. Civ. P.”
7 All unpublished cases cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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of the claim showing that the pleader is entitled to relief,” “a short and plain statement of
the grounds for the court’s jurisdiction . . . and . . . a demand for the relief sought . . . .”).
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).
IV. Section 1915 Review
A. Complaint
Plaintiff brings this action under 42 U.S.C. 1983 for purported violations of her First,
Fourth, Sixth, Eighth, And Fourteenth Amendment rights. See generally Compl. She
provides that she seeks to sue Johnathon Spychalski, Detective, Gloversville Police
Department; Lucas Nellis, Lieutenant, Gloversville Police Department; James P. Riley,
Esq., District Attorney, Fulton County District Attorney’s Office; the Honorable Traci
Dimezza, Gloversville City Court Judge; Kyle L. Davis, Public Defender; James P.
Melita, Private Defense Counsel; Jason Mitchell Abdalla, Confidential Informant; Keith
Ackerknecht, Jail Captain, Fulton County Jail; and “Unknown Individuals who Interfered
with Plaintiff’s Legal Mail and Communications.” Compl. at 1.
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1. Official Capacity Claims
As a threshold issue, to the extent plaintiff names District Attorney Riley in his official
capacity for monetary damages, all such claims are barred by Eleventh Amendment
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 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[.]”); Darcy v. Lippman,
356 F. App’x 434, 436-37 (2d Cir. 2009) (summary order) (“The Eleventh Amendment
likewise bars [the plaintiff] from pursuing a claim for damages against the individual
defendants in their official capacities”). 	Accordingly, to the extent plaintiff seeks to
proceed against Riley in his official capacity for monetary damages for constitutional
violations under section 1983, such claims must be dismissed without prejudice and
without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
2. Heck v. Humphrey8
Plaintiff provides in her complaint that she has pleaded guilty to criminal charges.
Compl. at 17, 20 (seeking an “injunction to vacate her plea agreement”), 21 (referring to
“coercion of Plaintiff’s plea’”). The undersigned discuses, infra, plaintiff’s various claims
that appear barred by Heck v. Humphry.
8 As discussed infra, to the extent plaintiff seeks this Court to review, modify, or vacate her criminal
plea/conviction, pursuant to a section 1983 action, such relief is also barred by Rooker-Feldman. See
infra at 26-27.
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a. Fourth Amendment9
Plaintiff indicates that she seeks to proceed pursuant to the Fourth Amendment
for “unlawful arrest and fabricated evidence” and indicates that she was improperly
prosecuted “despite the DA acknowledging her innocence,” arguably raising claims for
false arrest and malicious prosecution. Compl. at 17-18.
“The Fourth Amendment provides the source for Section 1983 claims related to a
plaintiff's arrest, detention and prosecution.” Mitchell v. Kindlon, No. 9:25-CV-0602
(MAD/TWD), 2025 WL 1951849, at *5 (N.D.N.Y. July 16, 2025), reconsideration denied
sub nom. Mitchell v. Blain-Lewis, No. 9:25-CV-0602 (MAD/TWD), 2025 WL 3136383
(N.D.N.Y. Nov. 10, 2025). Plaintiff contends that defendant Spychalski and Nellis
“unlawfully arrested Plaintiff without probable cause, fabricating witness statements and
suppressing evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).” Compl. at
4. Specifically, plaintiff contends that defendants violated her Fourth Amendment rights
by arresting her for Kidnapping in the Second Degree and Assault in the Second
Degree, without probable cause and based on fabricated evidence. See id. at 5.
Plaintiff contends that the “sole witness10 against Plaintiff was under the influence of
drugs at the time and provided contradictory statements, which were altered by
Detective Spychalski.” Id. at 5. To wit, plaintiff contends that Spychalski “engaged in
fabricating evidence, coercing a witness, and manipulating investigative procedures to
9 	To the extent plaintiff may also be alleging that the alleged false arrest, false imprisonment, and
malicious prosecution also violates her right to due process, “[w]here a due process claim is ‘based on
the same conduct that gave rise to [a] plaintiff’s . . . false arrest and malicious prosecution claims,’ the
due process claim should be dismissed ‘as both duplicative and merit[]less.” Crespo v. Rivera, No. 16
CIV. 708 (PGG), 2018 WL 4500868, at *14 (S.D.N.Y. Sept. 19, 2018) (quoting Osuna v. City of New York,
8 Civ. 4759 (JSR), 2009 WL 2356424, at *6 (S.D.N.Y. July 30, 2009)); see Compl. at 7.
10 	Plaintiff later contends that the victim was under the influence of drugs and provided contradictory
statements. It is unclear if the victim is the sole witness or if she is referring to the confidential informant.
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support plaintiff’s unlawful arrest” insofar as he tampered with a witness statement by
“placing a diagonal line across the Miranda waiver and coercing the witness to ‘just sign
here.’” Id. at 3, 5, 14. 	Plaintiff further contends that the “911 call from the alleged
incident was withheld by the prosecution” in violation of Brady. Id. at 5, 14. She asserts
that the City of Gloversville is liable for the officers’ alleged misconduct pursuant to
Monell v. Department of Social Services, 436 U.S. 658 (1978), because “its policies,
customs, and failure to train officers directly contributed to Plaintiff’s unlawful arrest,
detention, and prosecution.” Compl. at 4-5.
Plaintiff contends that District Attorney Riley prosecuted plaintiff despite being
aware that there was an absence of probable cause, relied on contradictory witness
statements, and he improperly withheld exculpatory evidence. Compl. at 3 7.
b. Ineffective Assistance of Counsel
Plaintiff raises a variety of concerns about her representation by Davis,11 who
was assigned as plaintiff’s public defender, and Melita, who she had retained as private
counsel. She raises concerns relating to bail, being coerced by counsel to accept a
plea for misdemeanor probation,” not obtaining or challenging a lack of a preliminary
hearing, being discouraged to withdraw a guilty plea, and being given incorrect advice
about a habeas corpus petition. 	Compl. at 7-8, 10-12. Plaintiff contends their
representation amounts to ineffective assistance of counsel in violation of her Sixth
Amendment right.
c. Equal Protection/Selective Prosecution
11 	Plaintiff contends Judge DiMezza “reassigned” Davis as plaintiff’s attorney after Davis had previously
given plaintiff ineffective assistance of counsel. Compl. at 11.
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Plaintiff contends that her codefendant, Jason Mitchel Abdalla, was responsible
for the incident leading to her arrest “and he was rumored to have not been jailed.”
Compl. at 8. She contends the Gloversville Police Department was aware that Abdalla
committed a serious violent crime but was still recruited to be a confidential informant,
and had “the two violent felonies he shared with Plaintiff entirely dismissed as well as
two other serious non related drug felonies and two A misdemeanors.” Id. at 9. It
appears plaintiff seeks to bring this claim against Spychalski, the City of Gloversville,
Nellis, and District Attorney Riley.
Liberally read, plaintiff contends that her Fourteenth Amendment Due Process
rights were violated because Abdalla’s charges “were quietly dismissed, including
charges he shared with Plaintiff,” whereas she was still charged and prosecuted.
Compl. at 16. She contends her that attorney Melita told her “that the DA
acknowledged her innocence but still wanted to charge her with something.” Id. It
appears plaintiff is raising selective prosecution claims.
d. Brady violation
Plaintiff contends that District Attorney Riley wrongly withheld exculpatory
evidence – “the 911 call from the alleged incident” – in violation of Brady v. Maryland.
Compl. at 5.
e. Discussion
Plaintiff’s claims (1) false arrest, false imprisonment, and malicious prosecution,12
in violation of the Fourth Amendment; (2) ineffective assistance of counsel in violation of
the Sixth Amendment; (3) denial of Equal Protection through selective
12 The false arrest claim encompasses plaintiff’s allegations regarding fabrication of evidence.
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enforcement/prosecution in violation of the Fourteenth Amendment; (4) Brady violations;
and (5) Fourteenth Amendment due process violations are barred by Heck. See
generally Compl. Plaintiff’s complaint provides that she has pleaded guilty to a crime
and offers no indication that her plea/conviction 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.
Clearly, were plaintiff to succeed on her claims of false arrest, false
imprisonment, and/or malicious prosecution before this Court, such a finding would
necessarily invalidate her criminal conviction, and, thus, are barred by Heck until she
can demonstrate favorable termination of the conviction. See Perry v. City of Albany,
No. 8:20-CV-165 (GTS/DJS), 2020 WL 3405636, at *4 (N.D.N.Y. May 6, 2020) report
and recommendation adopted, 2020 WL 3403080 (N.D.N.Y. June 19, 2020) (“Claims of
false arrest, false imprisonment, malicious prosecution, and fabrication of evidence are
generally viewed as barred by the rule in Heck.”); Harris v. Buffardi, No. 1:08-CV-1322
(GLS/DRH), 2011 WL 3794235, at *10 (N.D.N.Y. Aug. 24, 2011) (holding the plaintiff’s
claims for “violation of his due process rights, fabrication of evidence, obstruction of
justice, bad faith inadequate investigation, and §§ 1983 and 1985 conspiracy—all of
which are patent attacks on the validity of [the plaintiff's] conviction—[were] barred” by
Heck).
Next, insofar as plaintiff contends that her representation by Davis and Melia
violated her Sixth Amendment right to counsel, these claims are also barred by Heck v.
Humphrey. As noted, plaintiff contends that she pleaded guilty to a crime and has not
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shown that such conviction has been terminated in her favor. As a ruling in this case
that she was denied effective assistance of counsel would necessarily imply that the
conviction was unlawfully obtained, it is barred by Heck v. Humphrey. See D.S. v. City
of New York, 736 F. App’x 284, 287 (2d Cir. 2018) (summary order) (“[A]sserting that
D.S. was . . . denied effective counsel in violation of constitutional rights advanced
under § 1983 necessarily implies that his assault conviction was unlawfully obtained.”).
Accordingly, it is recommended that plaintiff’s Sixth Amendment claims with respect to
her various concerns regarding Davis and Melita’s representation be dismissed without
prejudice and without leave to amend.13
Similarly, “[p]laintiff's selective prosecution claim here, if meritorious, would
necessarily mean that [her] conviction was unlawful.” Corley v. Vance, 365 F. Supp. 3d
407, 457 (S.D.N.Y. 2019), aff’d sub nom. Corley v. Wittner, 811 F. App’x 62 (2d Cir.
2020) (summary order); Ruotolo v. Town of New Paltz, No. 1:22-CV-0169 (LEK/DJS),
2023 WL 2500655, at *18 (N.D.N.Y. Mar. 14, 2023) (“To the extent Plaintiff has stated a
claim for selective prosecution pursuant to the Equal Protection Clause . . . the Court
13 Arguably, plaintiff is contending that defendant Davis and Melita’s representation of her violated her
right Fourteenth Amendment to procedural due process. To the extent that plaintiff seeks to bring any
other claims against Davis or Melita for violations of her constitutional rights, criminal defense attorneys –
whether assigned or retained – are not considered state actors for purposes of section 1983. See
Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (“[I]t is well-established that court-appointed
attorneys performing a lawyer's traditional functions as counsel to defendant do not act ‘under color of
state law’ and therefore are not subject to suit under 42 U.S.C. § 1983.”); Pittman v. Brosi, No. 22-CV-
01757, 2022 WL 2161401, at *3 (E.D.N.Y. June 15, 2022) (dismissing Section 1983 claims against “court-
appointed defense attorney in the underlying state court criminal proceedings [because] she is a private
party who does not act under color of state law”); see also Polk County v. Dodson, 454 U.S. 312, 325
(1981) (holding that a “public defender does not act under color of state law when performing a lawyer's
traditional functions as counsel to a defendant in a criminal proceeding”). Accordingly, to the extent
plaintiff contends that Davis and Melita’s representation violated her Fourteenth Amendment rights, it is
recommended that such claims be dismissed with prejudice and without leave to amend for failure to
state a claim.
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finds that Heck bars that claim.”) (internal citations omitted). Thus, this claim is further
barred by Heck.
Finally, were plaintiff to be successful on a claim that Riley wrongfully withheld
exculpatory evidence, it would necessarily invalidate a criminal conviction.14 See
Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 1999).15 Thus, it is recommended that
plaintiff’s Brady claim be dismissed as barred by Heck. See Johnson v. New York City
Police Dep’t, 651 F. App’x 58, 60 (2d Cir. 2016) (summary order) (“’Brady-based § 1983
claims necessarily imply the invalidity of a challenged conviction in the trial (or plea) in
which the Brady violation occurred’ because ‘the remedy for a Brady violation is vacatur
of the judgment of conviction and a new trial.’ Thus, a Brady claim is not cognizable
under § 1983 unless the challenged conviction has been invalidated.”) (quoting
Poventud v. City of New York, 750 F.3d 121, 132-33 (2d Cir. 2014) (en banc)).
Accordingly, it is recommended that plaintiff’s Fourth Amendment false arrest,
false imprisonment, and malicious prosecution claims; Sixth Amendment ineffective
assistance of counsel claims; Fourteenth Amendment equal protection/selective
prosecution claims, and claims arising out of alleged Brady violations be dismissed
without prejudice and without leave to amend in this action pursuant to Heck as
plaintiff’s complaint provides that she pleaded guilty to a crime and has not alleged that
14 	The undersigned notes that even if there were no Heck concern, District Attorney Riley would be
protected by absolute prosecutorial immunity, as is discussed below regarding a separate claim. “Kweller
v. Cnty. of Broome, No. 3:25-CV-343 (AJB/ML), 2025 WL 3280821, at *12 (N.D.N.Y. Nov. 25, 2025)
(quoting Hill v. City of New York, 45 F.3d 653, 653 (1995) (“[A] prosecutor is protected by absolute
immunity for withholding exculpatory evidence from a grand jury.”).
15 Heck bars claims for injunctive and declaratory relief as well as monetary relief. See, e.g., Loyd v.
Cuomo, 8:14-CV-829 (GLS/CFH), 2015 W L 3637409, at *2 (N.D.N.Y. June 10, 2015) (“[T]he Supreme
Court has explained that the Heck rule applies ‘no matter the relief sought (damages or equitable relief).’”)
(quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) and citing Caswell v. Green, 424 F. App’x 44, 45 (2d
Cir. 2011) (summary order)).
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she ever obtained an invalidation of her state-court conviction. See Clemmons v.
Albany Cnty. Dist. Attorney's Off., No. 1:16-CV-884 (TJM/CFH), 2016 WL 5793201, at
*3 (N.D.N.Y. Aug. 25, 2016), report and recommendation adopted sub nom. Clemmons
v. Albany Cnty. Dist. Attorney’s Off., No. 1:16-CV-884 (TJM/CFH), 2016 WL 5717265
(N.D.N.Y. Sept. 29, 2016) (citing Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999)
(“Although the undersigned does not recommend that plaintiff be given an opportunity to
amend his complaint in connection with this proceeding, it is recommended that the
dismissal be without prejudice[.]”).
3. Judge DiMezza: Judicial Immunity
Plaintiff next contends that Judge DiMezza violated her “Eighth16 Amendment
rights by imposing excessive bail $50,000 cash/$75,000 partially secured
bond/$100,000 fully secured bond” despite plaintiff’s lack of criminal history for the past
decade, her “permanent disability status,” and “[t]he reduction of two serious felony
charges to a misdemeanor[].” Compl. at 6, see also id. at 3. Plaintiff contends that after
thirty two days, bail was lowered to a $50,000 partially-secured bond, which plaintiff
contends “was still excessive.” Id. at 7. Plaintiff argues that the bail was “arbitrarily
maintained and excessive levels,” causing her family financial hardship. Id.
Plaintiff also contends that Judge DiMezza subjected her to unlawful pretrial
detention in violation of her Fourteenth Amendment due process rights in that she was
detained for over 180 days without a preliminary hearing and did not waive her right to
such a hearing. See Compl. at 6. Plaintiff asserts that this amounts to “unlawful
16 	As plaintiff appears to have been a pretrial detainee at the time of her incarceration, not a convicted
and sentenced prisoner at this time, her claims would not fall under the Eighth Amendment.
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detention” in violation of her due process rights. See id.17 Plaintiff contends that at a
May 5, 2024, bail review hearing, Judge DiMezza “privately conferred with the District
Attorney off the record, then denied bail reduction[,]” alleging that the judge “participated
in coercive plea negotiations[,]” in violation of her due process rights. Id. at 3.
Reading the complaint liberally and applying due solicitude, plaintiff contends that
DiMezza set excessive bail and that it violated her Eighth and Fourteenth Amendment
rights and her detention without a pretrial hearing violated her Fourteenth Amendment
due process rights.18 Plaintiff has not set forth any facts to reasonably suggest that
DiMezza acted beyond her judicial capacity or in complete absence of all jurisdiction in
setting bail. See Franklin v. Warren Cty. D.A.’s Office, No. 1:08-CV-801 (GLS/RFT),
2009 WL 161314, at *5 (N.D.N.Y. Jan. 21, 2009) (absolute judicial immunity barred
excessive bail claim against judge because “[j]udges enjoy absolute immunity from
personal liability for acts committed within their judicial jurisdiction”) (citing Young v.
Selsky, 41 F.3d 47, 51 (2d Cir. 1994))); see also London v. Nassau Cnty. Dist.
Attorney’s Off., No. 20-CV-3988(JS)(AKT), 2020 WL 7699644, at *5 (E.D.N.Y. Dec. 28,
2020) (“Moreover, Plaintiff's excessive bail claims are also barred by absolute judicial
immunity because the setting of bail is a judicial function that is entitled to absolute
17 Plaintiff also appears to argue that, insofar as she was prosecuted based on allegedly fabricated
evidence, she was deprived of her due process rights under the Fourteenth Amendment. However, such
argument appears to be encompassed within her false arrest claim (she contends she was falsely
arrested, in part, due to fabricated evidence), which would fall under the Fourth Amendment.
18 	To the extent plaintiff’s complaint may be read as contending that the initial denial of bail violated her
Eighth Amendment rights, courts have rejected this claim. See Carlson v. Landon, 342 U.S. 524, 545-46
(1952) (“[The Excessive Bail Clause] has never been thought to accord a right to bail in all cases, but
merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.”).
Further, at least one court in this Circuit has held that where a plaintiff alleged excessive bond but was
able to “eventually post the bond and secure his release,” as the bond did not prevent the release from
detention, there could not be a violation of Eighth Amendment rights established. See Hassan v. Holder,
No. 11 CIV. 7157 LGS, 2014 WL 1492479, at *12 (S.D.N.Y. Apr. 15, 2014).
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immunity.”). Since absolute judicial immunity is “not overcome by allegations of bad
faith or malice,” Mireles v. Waco, 502 U.S. 9, 11 (1991), plaintiff’s § 1983 claims against
DiMezza, including her conclusory19 allegations that DiMezza “participated” in coercing
plaintiff’s plea, must fail.20
Plaintiff next contends that DiMezza subjected her to “unlawful pretrial detention”
in that she was incarcerated “for over 180 days without a preliminary hearing”21 or
waiving such hearing, which violated her Fourteenth Amendment due process rights.
See Compl. at 6, 8. She contends that NYS CPL § 180.80 required her to be released
on her own recognizance after the 144 hours legally allowed by NYS CPL 180.80.” Id.
at 8. Plaintiff’s claim would be similarly barred by absolute judicial immunity. See Mills
v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of
absolute judicial immunity is ‘frivolous’ for purposes of [the IFP statute].”).22
19 The undersigned observes that the only discernable statement plaintiff makes in the complaint to
support this allegation is that DiMezza asked plaintiff “why she wanted to withdraw her plea” and told her
“that she should be thankful she was offered a great plea since the original charges were a class B and D
felony.” Compl. at 11.
20 Further, even assuming, arguendo, that judicial immunity were not a bar, if this Court were to conclude
that DiMezza coerced her into taking a plea, it would necessarily invalidate her criminal conviction and,
therefore, is barred by Heck absent favorable termination of the criminal conviction. Similarly, Insofar as
plaintiff is alleging that DiMezza participated in a violation of her Sixth Amendment rights by assigning
plaintiff Davis as her public defender because Davis “previously provided ineffective assistance,” as noted
above, such an allegation arises under her claim that she received ineffective assistance of counsel and
is barred by Heck unless and until plaintiff can show favorable termination of her criminal conviction.
Compl. at 11.
21 	Plaintiff elsewhere states that after her initial arraignment, DiMezza set bail, “remanded her to Fulton
County Jail for 32 days before being released on a lowered bail . . . .” Compl. at 7. 	These statements
appear to conflict.
22 	Further, to the extent plaintiff may be seeking this Court to review Judge DiMezza’s bail
determinations, it seems likely that this claim is moot because “the Eighth Amendment protection against
excessive bail may only be vindicated prior to trial.” MacLean v. Lewin, No. 10-CV-0306 MAT, 2011 WL
2971771, at *4 (W.D.N.Y. July 20, 2011) (citing Murphy v. Hunt, 455 U.S. 478, 481-482 (1982) (criminal
defendant's 42 U.S.C. § 1983 suit challenging his bail as excessive was moot after he was convicted in
the underlying criminal case); then citing United States v. Bostick, 400 F.2d 449, 451 (5th Cir.1982) (“The
question whether the bail set before trial was excessive became moot after the judgment of conviction
was rendered.”), cert. denied, 393 U.S. 1068 (1969), then citing Lombard v. Mazzuca, No. 00-CV-74622
(JG), 2003 WL 22900918, at *6 (E.D.N.Y. Dec.8, 2003) (holding habeas claim that pretrial bail was
excessive became moot once petitioner was convicted).
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4. James P. Riley, Esq.: Absolute Immunity
To the extent a liberal reading of the complaint suggests that District Attorney
James P. Riley23 violated her Fourteenth Amendment due process rights by (1) failing to
challenge/address the alleged violation of CPL § 180.80, such claim would be barred by
absolute prosecutorial immunity.24 	See Bey v. Nugent, No. 18CIV7878 PGGRWL,
2020 WL 6530917, at *5 (S.D.N.Y. June 3, 2020), report and recommendation adopted,
No. 18CIV7878 PGG RWL, 2020 WL 4731419 (S.D.N.Y. Aug. 14, 2020) (“Absolute
immunity covers virtually all acts associated with a prosecutor's function as an advocate
regardless of motivation, Bernard v. County of Suffolk, 356 F.3d 495, 504-505 (2d Cir.
2004), including, for example, deciding whether to bring charges, making bail
applications, presenting charges to a grand jury, presenting evidence at a suppression
hearing, and engaging in plea negotiations.”) (citing Giraldo v. Kessler, 694 F.3d 161,
165, 167 (2d Cir. 2012), then citing Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995)).25 Accordingly, it is recommended that any Fourteenth Amendment claims
against Riley in his individual capacity be dismissed with prejudice for failure to state a
claim.
5. Criminal Investigation/Criminal Prosecution
i. Claims against Abdalla
23 	Plaintiff refers to James Riley as the Fulton County District Attorney, but it appears he may be an
Assistant District Attorney.
24 	The undersigned further concludes that the other claims plaintiff raises against Riley, pursuant to the
Fourth and Fourteenth Amendments and Brady, addressed in the Heck section, are also barred by
prosecutorial immunity.
25 As noted, supra, claims against him in his official capacity for money damages are barred by sovereign
immunity. See D'Alessandro v. City of New York, 713 F. App’x 1, 8 (2d Cir. 2017) (summary order) (“[I]f a
district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the State, and
therefore immune from suit in her official capacity”).
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Plaintiff contends that upon returning to her home after being released on bail, it
was completely ransacked, and her SSI check was missing. See Compl. at 8. She
learned “her co-defendant,” presumably Abdalla, had her cellular phone and had been
stealing money from her “account” before her arrest. See id. Plaintiff also contends
that Abdalla “committed sexual misconduct and entrapment, extorting plaintiff for
money,” and “engag[ing] in sexual misconduct under false pretenses.” Compl. at 4, 15.
Plaintiff contends that he “used lies and rumors to cause a breakup between her and
her fiancée of six years.” Id. at 9. Plaintiff contends that she was placed at risk of STI
and HIV exposure based on Abdalla falsely advising her he had been tested. See id. at
9. 	She further contends Abdalla “attempt[ed] to frame her for mail order drugs.” Id.
Plaintiff contends Abdalla is guilty of entrapment and “engaging in sexual intercourse
with plaintiff under false pretenses, constituting rape by deception, while working as a
confidential informant.” Id. at 15. Plaintiff also contends that Abdalla stole money from
her, improperly had possession of her cellular phone, potentially “ransacked” her
apartment and stole an SSI check “from her account.” Id. at 8. She claims he
“extorted” her for money. Id. at 15.
Plaintiff’s claims against and involving Abdalla must be dismissed. To the extent
plaintiff seeks this Court to pursue or order an investigation or initiate criminal charges
against Abdalla, it is well-settled law that there exists no private initiation of criminal
prosecution or arrest. See Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981); Linda R.S.
v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.”). To the extent plaintiff seeks
this Court to direct prosecuting agencies to initiate a criminal investigation or
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17
proceeding, this is relief the Court also cannot provide. See Conn. Action Now, Inc. v.
Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).
Further, to the extent plaintiff refers to entrapment, there is no private cause of
action of entrapment in a civil case. See U.S. v. Sistrunk, 622 F.3d 1328, 1332 (11th
Cir. 2010) (recognizing entrapment as an affirmative defense in criminal cases).
Instead, entrapment is an affirmative defense in a criminal case. See id.
Plaintiff states that Abdalla “extorted her for money, falsely claiming he was in
jail. Plaintiff sent money to the jail, but it was never accounted for.” Compl. at 15. In
addition to lacking standing to seek an investigation or prosecution into her allegations
of extortion, “[in New York,] extortion is a criminal offense, and may not be plead as a
separate cause of action in a civil case.” Naples v. Stefanelli, 972 F.Supp.2d 373, 401
(E.D.N.Y. 2013) (citations omitted)); Mathon v. Feldstein, 303 F.Supp. 2d 317, 325
(E.D.N.Y. 2004) (“[E]xtortion is a federal crime and there is no federal statute creating a
private civil cause of action for extortion.”) (alterations and quotation marks omitted).
Accordingly, it is recommended that plaintiff’s claims for “sexual misconduct and
entrapment by Jason Mitchell Abdalla” and extortion be dismissed without prejudice and
without opportunity to amend for lack of subject matter jurisdiction.26
ii. Mail Interference/Forgery: First and Fourteenth Amendments
26 	Similarly, to the extent a liberal reading of the complaint might suggest that plaintiff seeks to proceed
against law enforcement or prosecutors for any failure to act to prosecute Abdalla for these alleged
crimes, plaintiff would lack standing to make such a claim. See Cohen v. Richardson, No. 1:23-CV-00224
(AMN/CFH), 2024 WL 418788, at *4 (N.D.N.Y. Feb. 5, 2024), reconsideration denied, No. 1:23-CV-00224
(AMN/CFH), 2024 WL 3653801 (N.D.N.Y. Aug. 5, 2024), appeal dismissed sub nom. Cohen v. Cushman,
No. 24-2248, 2025 WL 2485120 (2d Cir. Aug. 18, 2025) (citing Linda R.S., 410 U.S. at 619) (“a citizen
lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted
nor threatened with prosecution.”).
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Plaintiff seeks to proceed against unknown defendants27 for alleged violations of
her First and Fourteenth Amendment rights in connection with her allegations that
unknown individuals are interfering with her mail, submitting forged judicial documents,
and obstructing her ability to file legal documents. See Compl. at 4, 12-13. Plaintiff
contends that unknown defendant(s) rerouted her mail in connection with her habeas
corpus petition, among other unspecified “critical legal filings,” to unknown locations or
falsely marked the mail as delivered, “despite no court records showing receipt.” Id. at
13. Plaintiff contends she “later received a fake court-stamped response with a forged
judicial signature, falsely suggesting that her habeas petition had been processed and
denied when, in reality, it never reached the court.” Id. at 13. Plaintiff says PACER
falsely shows her filings as “processed” but “USPS tracking numbers attached to these
slips show no record of mailing activity.” Id. Plaintiff contends that the unknown
defendant or defendants forged and interfered with her mail in a “deliberate effort to
intercept Plaintiff’s court filings.” Id. Plaintiff contends that such conduct – “theft,
tampering, and forgery of legal documents” – amounts to violations of her “First
Amendment right to petition the government for redress of grievances and Fourteenth
Amendment right to due process.” Id. at 14. Plaintiff contends that the unknown
27 Plaintiff appears to elaborate on this claim in docket number 8, indicating her belief that the actors are
family members. In addition to the failings associated with this claim and noted within this Report-
Recommendation & Order, plaintiff may also not proceed under section 1983 as her family members are
not alleged to be state actors under the color of state law. Further, such claim also appears to be
frivolous. Plaintiff’s claims appear to involve the interference with her electronic mail and/or legal mail and
forged judicial signatures in association with a habeas corpus case. The Court’s dockets reflect that she
filed two habeas corpus cases in this District, one was administratively closed because plaintiff failed to
pay the filing fee and the other is currently open and pending. See 9:25-cv-01455-AJB, Orsell v. Emery
(closed 10/23/25); 9:24-cv-01389-LEK, Orsell v. Spychalski et al. (pending). The undersigned does not
rely on these defects in recommending dismissal of this claim but includes this footnote for sake of
completeness.
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defendants conduct also amounts to “criminal fraud and obstruction of justice under 18
U.S.C. 241 and § 242.” Id.
Plaintiff seeks this Court to enter an injunction to order unknown individuals to
stop “[t]ampering with Plaintiff’s legal mail, communications, or court filings[,]” “[c]yber
attacks against Plaintiff’s devices, legal files, and communications,” “tampering with
Plaintiff’s phone, internet, and SIM card data[,]” “”[i]nterference with Plaintiff’s USPS
mail, including legal filings.” Compl. at 20. She requests an order “directing an
independent federal investigation” into “the fraudulent documents and forged judicial
signatures in Plaintiff’s habeas corpus filing.” Id.
As noted above, plaintiff does not have standing to seek the investigation or
criminal prosecution of defendants, nor can this Court direct any agency to perform an
investigation, bring criminal charges, or enjoin unknown actors. See Leeke, 454 U.S. at
86-87; Linda R.S. v, 410 U.S. at 619. Accordingly, insofar as plaintiff seeks to proceed
against unknown (Doe) defendants for violations of her First and Fourteenth
Amendment rights in connection with mail tampering, mail interference, or forgery of
documents, such claims are dismissed without prejudice and without opportunity to
amend for lack of subject matter jurisdiction.
6. Conditions of Confinement28
a. Deliberate Indifference to Serious Medical Needs
28 Liberally read, in referring to having limited access to a law library resources – insufficient number of
tablets and time limits on the tablets – it is possible plaintiff is contending that she was denied access to
the courts as she was not aware of her rights under CPL 180.80, plaintiff has not demonstrated “that the
alleged shortcomings in the library . . . hindered [her] efforts to pursue a legal claim” or that those alleged
shortcomings caused her actual injury.” Johnson v. Nassau Cnty., No. 13-CV-6510 JS WDW, 2014 WL
294250, at *6 (E.D.N.Y. Jan. 24, 2014) (“Here, as is readily apparent, Plaintiff has made no allegations
regarding an actual injury he suffered due to the allegedly inadequate law library or insufficient access to
the law library at the N.C.D.C.”). Plaintiff has also not named any defendants in association with her
complaints about legal access.
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Plaintiff contends that Capital Keith Achrenight29 violated her Eighth Amendment
right against cruel and unusual punishment insofar as he was deliberately indifferent to
her serious medical needs. See Compl. at 15. Although the exact timeline of her
incarceration is not entirely clear,30 it appears plaintiff was a pretrial detainee during this
incarceration, not a convicted prisoner; thus, her deliberate indifference claims proceed
pursuant to the Fourteenth Amendment. See Bradley v. Rell, 703 F. Supp. 2d 109, 117
(N.D.N.Y. 2010) (“Where a pre-trial detainee alleges deliberate indifference to a medical
need while incarcerated, such a claim is evaluated under the Due Process Clause of the
Fourteenth Amendment.”) (citation and additional internal quotation marks omitted).31
Plaintiff contends that during a sixteen-day stay in jail,32 she was denied mental
and physical health medications, causing her to suffer withdrawal and physical and
psychological distress. See Compl. at 15-16. She contends that Captain Achrenight
was responsible for jail operations and ensuring she received medical care. See id.
She contends “jail staff deliberately withheld an immediate STD test,” instead
29 Plaintiff spells this defendants name in a variety of ways. In the caption, she spells it as Ackerknecht.
Compl. at 1. Throughout the complaint, it is spelled as Achrenight. See Compl. at 4, 15. For
consistency, the undersigned uses the spelling Achrenight.
30 Plaintiff refers to a sixteen-day period of incarceration and elsewhere in her complaint a thirty-two-day
period of incarceration. See Compl.
31
The objective prong of a Fourteenth Amendment deliberate indifference claim is the same
as for a convicted prisoner under the Eighth Amendment. See Darnell, 849 F.3d at 30. In
this regard, a plaintiff must demonstrate a violation sufficiently serious by objective terms,
“in the sense that a condition of urgency, one that may produce death, degeneration, or
extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
With respect to the subjective test, a detainee must allege defendants “acted intentionally
to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate
the risk that the condition posed to the [plaintiff] even though [they] knew, or should have
known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at
35.
Taylor v. Tope, No. 9:25-CV-0773 (ECC/PJE), 2025 WL 3194406, at *3 (N.D.N.Y. Aug. 12, 2025).
32 It is not entirely clear when this stay occurred or whether the failure-to-protect allegations occurred
during the same period of incarceration as the medical indifference claims.
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21
administering “a broad-spectrum antibiotic.” Id. at 15. Her STD test was administered
after completion of antibiotics, “effectively destroying any evidence of STI transmission.”
Id.
Plaintiff names only Captain Achrenight in connection with her deliberate
indifference to serious medical needs claim. 	Personal involvement is a prerequisite to
the assessment of damages in a section 1983 case, and respondeat superior is an
inappropriate theory of liability. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)
(citation omitted); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003). Plaintiff does
not state how Achrenight would have been aware of plaintiff’s medical needs, that she
specifically informed him of her medication or testing requests or concerns, or that he
was personally responsible for denying her request for STD testing. 	Instead, plaintiff
appears to be seeking to proceed against Achrenight for both her deliberate indifference
and failure to protect claims based on his position as police Captain. However, where
“a 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. Bazile v.
Uhler, No. 9:25-CV-1602 (AMN/PJE), 2025 WL 3522973, at *3 (N.D.N.Y. Dec. 9, 2025)
(citing Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d
431, 435 (2d Cir. 2003); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). Accordingly,
plaintiff has failed to demonstrate a claim against Achrenight as she has not sufficiently
alleged his personal involvement in any deliberate medical indifference to any serious
medical need.33
33 The undersigned observes that plaintiff does not deny being given medical care, stating that she was
given “broad-spectrum antibiotics used to treat gonorrhea and chlamydia.” Compl. at 15.
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b. Failure-to-Protect
Plaintiff next contends that she was wrongly designated as a low-security inmate,
“despite a long-standing high-security designation due to mental health conditions.”
Compl. at 16. Plaintiff contends that, apparently due to the wrong security designation,
“jail staff allowed two inmates to enter Plaintiff’s cell off camera and physically assault
her.” Id. She asserts that “[o]ne assailant was a male in transition who still had male
genitalia.” Id. She contends that her attackers “attempted to provoke Plaintiff into a
physical altercation.” Id. Plaintiff alleges that “[j]ail officials took no action against the
attackers, creating an unreasonable risk of harm in violation of the Eighth Amendment.”
Id.
First, as with her deliberate indifference claim, because plaintiff was a pretrial
detainee at the time of the incident in question, her failure-to-protect claim arises under
the Fourteenth Amendment. See Darnell, 849 F.3d at 35; see also Vega v. Semple,
963 F.3d 259, 273-74 (2d Cir. 2020). Second, plaintiff does not identify the defendants
against whom she seeks to bring this claim. She does not name the “jail staff,” indicate
that she wishes to proceed against Doe defendants, or identify each person’s individual
conduct. Compl. at 16. Further, to the extent plaintiff may have intended to proceed
against Achrenight on her failure-to-protect claim, such claims would also fail as she
has not established his personal involvement in the alleged failure to protect. She does
not contend that Achrenight was responsible for designating her security level or that he
was at all aware of the alleged attack, had the ability to intervene to prevent the attack,
or that he was responsible for the disciplining of the alleged attackers.
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Here, plaintiff can arguably amend to allege Achrenight’s or other individuals’
personal involvement in the alleged constitutional deliberate indifference to medical
needs and failure-to-protect claims.34 Accordingly, it is recommended that plaintiff’s
Fourteenth Amendment conditions of confinement claims be dismissed without
prejudice and with leave to amend as specified herein.
7. State Law Defamation Claim
Plaintiff also appears to attempt to raise a state law claim “for defamation,
emotional distress, and reputational harm caused by the slanderous and false
newspaper article and radio broadcast.”35 Compl. at 21. Plaintiff contends that “on the
front page of the local newspaper the day before Plaintiff’s court appearance” there was
a false allegation that plaintiff “stabbed the victim in the face and neck repeatedly” and
such claims were “included in the police blotter section on a separate occasion.” Id. at
22. Plaintiff contends that the reports did not have a disclaimer that she was innocent
until proven guilty. See id. She alleges that she was subjected to “public ridicule,
humiliation, and prejudice in her legal proceedings.” Id. Plaintiff contends that these
statements were “written by Gloversville Police Captain Bradley Schaffer.” Id. at 22.
She also contends that the publication “contaminated any potential jury pool, making it
nearly impossible for Plaintiff to receive a fair trial.” Id.
“Under New York law, claims for defamation that are brought after one year from
the date that the alleged defamatory statements were made are barred by the statute of
34 	Although the undersigned observes that exhaustion is an affirmative defense, for sake of
completeness, it is noted that it is unclear whether plaintiff exhausted her administrative remedies in any
available facility grievance program.
35 Plaintiff does not name the newspaper or radio stations through which the allegedly libelous or
slanderous material was published or indicate whether she seeks to proceed against those entities.
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limitations.” Waldron v. Milana, No. 5:10-CV-0065 (GTS/DEP), 2013 WL 2445047, at *3
(N.D.N.Y. June 5, 2013) (citing N.Y. C.P.L.R. § 215(3)). Plaintiff states that the
information was published in the local newspaper on “the day before her court
appearance.” Compl. at 22. It is not clear whether plaintiff is referring to her first court
appearance or a different one. Indeed, it is not entirely clear when plaintiff even had her
first court appearance. Plaintiff notes that she was arrested on April 9, 2024. See id. at
4. Depending on when the allegedly defamatory statements were published, her
defamation claim may be barred by the statute of limitations as she commenced this
action on July 18, 2025.36 Plaintiff also does not allege when the allegedly defamatory
radio broadcasts were released or when the “police blotter” section was published as
this publication may also have occurred greater than one year prior to the
commencement of this action. Id. at 22.
Further, insofar as plaintiff wishes to proceed against a municipal defendant for a
state tort claim, she must demonstrate she has filed a notice of claim within ninety days
of the alleged violation. See N.Y. Gen Mun. Law § 50-e. Plaintiff has made no such
claim.37 See generally Silverman v. City of New York, No. 98-CV-6277, 2001 WL
218943, at *7 (E.D.N.Y. Feb. 2, 2001) (applying notice of claim requirement to
defamation claim against municipality).
In addition to the statute of limitation concerns and the notice of claim issue, the
undersigned does not recommend that leave to amend be afforded because, even if
36 	Indeed, if, in referring to “the day before Plaintiff’s court appearance,” plaintiff is referring to a date in
April 2024, such a claim would be barred under the one-year statute of limitations. Compl. at 22.
37 Plaintiff indicates that her right to a fair trial has been impeded because such allegedly defamatory
statements poisoned the potential jury pool. However, it appears from the allegations in the complaint
plaintiff accepted a plea, waiving her right to a jury trial. Further, such alleged injury appears speculative.
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25
plaintiff could, upon amending, demonstrate that neither of these concerns bars her
defamation claim, it is still recommended that the Court decline to exercise
supplemental jurisdiction. Significantly,
“[A] cause of action under 42 U.S.C. § 1983 may not be premised solely
on a violation of state law.” O'Neil v. Bebee, No. 5:09-CV-1133
(GTS/DEP), 2010 WL 502948, at *7 n.15 (N.D.N.Y. Feb. 10, 2010).
However, a court may choose to exercise supplemental jurisdiction over
pendent state law causes of action pursuant to 28 U.S.C. § 1367 where
the state law causes of action “are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.” See 28
U.S.C. § 1367(a).
Francis v. Depuy, No. 9:25-CV-0016 (LEK/ML), 2025 WL 3672549, at *4 (N.D.N.Y. Dec.
18, 2025). Here, the undersigned is recommending dismissal, without leave to amend,
of all of plaintiff’s federal claims except those relating to the conditions of her
confinement. Although the undersigned is recommending that plaintiff be permitted to
amend as to her condition of confinement claims, the conditions of confinement claims
are not so related to her state-law defamation claims such that they can be said to be of
the same case or controversy. 	Accordingly, even if plaintiff could potentially amend to
demonstrate that the defamation claims are not barred by the one-year statute of
limitations, and that she either served a notice of claim upon the municipality or no such
service is required, it is recommended that decline to exercise supplemental jurisdiction
over her state-law defamation claim and dismiss the claim without leave to amend.
8. Injunctive/Declaratory Relief
Although the undersigned recommends dismissal of all of the claims associated
with the requests for injunctive relief, the undersigned also notes that the Court is likely
prohibited from granting much of this relief (1) due to Rooker-Feldman; (2) because the
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26
Court cannot grant mandamus relief over a non-federal agency; and (3) because, as
noted above, plaintiff does not have standing to seek this Court to initiate a criminal
investigation or prosecution or for this Court to direct other agencies to so perform.
Plaintiff contends she seeks injunctive relief through (1) an order prohibiting
“Defendants, law enforcement agencies, and any associated individuals from engaging
in further harassment, intimidation, retaliation, or interference with plaintiff’s
constitutional rights, including but not limited to: unlawful surveillance, cyber attacks,
and electronic tampering”; “Tampering with Plaintiff’s legal mail, communications, or
court filings” or “Attempts to entrap Plaintiff or interfere with her case using confidential
informants.”; (2) an order compelling “an immediate forensic audit and investigation” into
alleged cyber attacks against plaintiff and her devices, tampering with her internet and
electronics, and interference with her mail; (3) “an injunction vacating Plaintiff’s plea
agreement,” “staying the enforcement of Plaintiff’s probation pending the resolution of
this case,” “a declaratory judgment that Plaintiff’s excessive bail was unconstitutional,
along with an order directing reimbursement of all improperly imposed financial
penalties and liens,” and “an order enjoining further enforcement of plaintiff’s
unconstitutional sentence, including any continued supervision under probation.”; (4) an
order “directing an independent federal investigation into” (a) “[t]he fraudulent court
documents and forged judicial signatures in Plaintiff’s habeas corpus filing”, and (b)
“[t]he role of law enforcement in obstructing justice, including their use of confidential
informants to entrap Plaintiff”, (c) a “[r]eferral to the U.S. Postal Inspection Service and
DOJ Civil Rights Division for criminal prosecution of those responsible”; (d)“[t]he
involvement of Gloversville and Johnstown Police Departments in interfering with
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27
Plaintiff’s digital and personal privacy”; (e) “[m]isconduct by prosecutors, public
defenders, and private defense attorneys, including coercion of Plaintiff’s plea”; (5) “[a]
court directive to suspend the confidential informant status of individuals involved in
fabricating evidence, coercing testimony, and targeting Plaintiff”; and (6) an “injunction
requiring the City of Gloversville to reform its police training and disciplinary procedures
to prevent further constitutional violations Id. at 21, 23.
Insofar as plaintiff seeks this Court to direct state and municipal agencies, such
as the Fulton County District Attorney’s Office or the Gloversville Police Department, to
act or cease to act, this Court cannot do so. “[T]he Mandamus Act provides that ‘[t]he
district courts shall have original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.’” Walker v. Rosa, No. 1:24-CV-1171 (AJB/PJE), 2025 WL
3287025, at *4 (N.D.N.Y. Oct. 29, 2025), report and recommendation adopted, 2025 WL
3282707 (N.D.N.Y. Nov. 25, 2025) (quoting Espindola v. U.S. Dep’t of Homeland Sec’y,
1:20-CV-1596 (MAD/DJS), 2021 WL 3569840, at *3 (N.D.N.Y. Aug. 12, 2021) (then
quoting 28 U.S.C. § 1361) (emphasis added)). “By its own terms, the Mandamus Act
confers jurisdiction over only officers or employees of the United States; it does not
confer jurisdiction over state or local officials.” Id. (quoting Marom v. Town of
Greenburgh, No. 20-CV-3486 (PMH), 2021 WL 797648, at *4 (S.D.N.Y. Mar. 2, 2021)).
Accordingly, plaintiff’s request for injunctive relief with respect to the District Attorney’s
Office or Gloversville Police Department are recommended to be dismissed as
improperly sounding in mandamus relief.
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Insofar as plaintiff seeks “an injunction vacating Plaintiff’s plea agreement,”
“staying the enforcement of Plaintiff’s probation pending the resolution of this case,” “an
order directing reimbursement of all improperly imposed financial penalties and liens”
relating to her bail, and “an order enjoining further enforcement of plaintiff’s
unconstitutional sentence, including any continued supervision under probation,” this
request for relief is barred by the Rooker-Feldman doctrine. 	“Rooker-Feldman directs
federal courts to abstain from considering claims when four requirements are met:
(1) the plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the
state court judgment, (3) the plaintiff invites district court review of that judgment, and
(4) the state court judgment was entered before the plaintiff's federal suit commenced.”
McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010). In addition to the Heck concerns
discussed above, all of the Rooker-Feldman factors apply here – (1) plaintiff plead guilty
in state court (“lost”), (2) she complains of injuries caused by the state court, (3) she
seeks review of the state plea/conviction, and (4) the ”injuries” of which plaintiff
complaints existed before this federal action was commenced; thus, the Rooker-
Feldman bars her requests for injunctive and declaratory relief relating to her criminal
plea, conviction, and sentence. See McNeil v. Van Houten, No. 3:25-CV-00725
(AMN/MJK), 2025 WL 3171001, at *3 (N.D.N.Y. Nov. 13, 2025) (“To the extent that
Plaintiff seeks to challenge his conviction in Tompkins County Court, the Rooker-
Feldman doctrine bars Plaintiff's claims. Under Rooker-Feldman, federal district courts
lack subject matter jurisdiction over suits where “a plaintiff seeks relief that invites a
federal district court to reject or overturn a final decision of a state court as to a
conviction.” Cathlin v. City of New York, No. 23-cv-4219, 2023 WL 6929187, at *3
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(S.D.N.Y. Oct. 18, 2023) (collecting cases). Here, plaintiff's claims are barred under
Rooker-Feldman because Plaintiff pled guilty and was convicted in state court before
bringing this action.”) (citing Moalawi v. James, No. 22-cv-6770, 2023 WL 4817618, at
*2 (S.D.N.Y. July 27, 2023) (finding that Rooker-Feldman barred the plaintiff's challenge
to his state court conviction under Section 1983)).
Finally, as noted above, to the extent plaintiff seeks this Court to direct federal
agencies to conduct independent investigations into criminal conduct, such as her
allegations of mail tampering and forgery, plaintiff does not have standing to make such
a request. See supra at 15-18.
It is therefore recommended that all of the above demands for injunctive and
declaratory relief be dismissed with prejudice, such that only her requests for monetary
damages associated with her conditions of confinement claims remain, assuming she is
permitted, and chooses, to replead them.
V. Motion for Appointment of Counsel
Plaintiff contends that appointment of counsel is warranted because her case
“involves legal and factual issues,” she is “legally disabled and dealing with cyber
attacks and mail fraud as I have explained in the attached affidavits,” and she is
“indigent.” Dkt. No. 4 at 1. Plaintiff contends that, due to being a victim of mail fraud,
she “cannot confirm whether my attempts to contact legal aid and civil rights
organizations have actually reached the intended recipients.” Id.
Prior to evaluating a request for appointment of counsel, a party must
demonstrate that he is unable to obtain counsel through the private sector or public
interest firms. See Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 173-74 (2d Cir. 1989)
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(citing Hodge, 802 F.2d at 61). A motion for appointment of counsel, therefore, must be
accompanied with proof of plaintiff’s efforts to obtain counsel on his own from the public
and private sectors.
Further, it is well-settled that there is no right to appointment of counsel in civil
matters. See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). The factors to be
assessed in reviewing a motion for counsel are well settled and include, “the merits of
the plaintiff’s case, the plaintiff’s ability to pay for private counsel, the plaintiff’s efforts to
obtain a lawyer, the availability of counsel, and the plaintiff’s ability to gather the facts
and deal with the issues if unassisted by counsel.” Cooper, 877 F.2d at 172. Of these,
“[t]he factor which command[s] the most attention [is] the merits.” Id.
In Terminate Control Corp. v. Horowitz, the Second Circuit stated:
[T]he district judge should first determine whether the indigent's position
seems 	likely 	to 	be 	of 	substance. 	If 	the 	claim 	meets 	this 	threshold
requirement, 	the 	court 	should 	then 	consider 	the 	indigent’s 	ability 	to
investigate the crucial facts, whether conflicting evidence implicating the
need for cross-examination will be the major proof presented to the fact
finder, the indigent’s ability to present the case, the complexity of the legal
issues and any special reason in th[e] case why appointment of counsel
would be more likely to lead to a just determination.
28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61
(2d Cir. 1986). Appointment of counsel must be made carefully to preserve the
“precious commodity” of volunteer lawyers for those litigants who truly need a lawyer’s
assistance. Cooper, 877 F.2d at 172-73.
Accordingly, in deference to the limited resources available to the court to
serve the interests of the many indigent litigants who pursue civil claims
before it, and recognizing the “thankless burden” associated with such
assignments, Miller v. Pleasure, 296 F.2d 283, 285 (2d Cir. 1961), cert.
denied, 370 U.S. 964, 82 S. Ct. 1592 (1962), courts should not grant such
applications indiscriminately, but instead must exercise good judgment and
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restraint when doing so. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172,
173-74 (2d Cir. 1989).
Janneh v. Regal Entm’t Grp., No. 3:07-CV-0079 (TJM/DEP), 2008 WL 11506720, at *1
(N.D.N.Y. May 21, 2008).
Where a plaintiff does not provide a Court with evidence, as opposed to mere
allegations, relating to his 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, at *1 (S.D.N.Y.
Mar. 17, 1997) (noting that “a threshold requirement” in evaluating a pro se plaintiff's
request for the appointment of counsel is that the plaintiff's claim “seems likely to be of
substance[,]” which the plaintiff must demonstrate through “evidence . . . support[ing]
her claims regarding [the] defendant's allegedly improper actions” (internal citations
omitted)); see also Hodgson v. Wood, No. 9:22-CV-0275 (LEK/DJS), 2023 WL
12106549, at *2, *2 n.2 (N.D.N.Y. Sept. 7, 2023) (denying appointment of counsel at the
summary judgment stage, concluding that the plaintiff provided the Court with only
allegations relating to his claim and noting that “[t]he record evidence introduced by
defendants in support of their motion for summary judgment does not support plaintiff's
claims.”). Here, as plaintiff has only filed a complaint, the Court does not yet have
evidence before it to assess whether her positions are likely to be of substance. This
case is at its earliest stages, and it is unclear whether any claims will proceed beyond
the initial review stage. Thus, the request for counsel is premature.
Next, that plaintiff may be inexperienced in legal matters and would prefer the
assistance of counsel does not satisfy this Court’s requirements for appointment of
counsel. “Were that the case, counsel would need to be appointed to nearly every pro
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se plaintiff in civil actions.” Gray v. Fidelity Investment, 1:20-CV-718 (DNH/CFH), 2020
WL 5942254, at *2 (N.D.N.Y. Oct. 6, 2020). “Lack of knowledge of the law does not
suffice to demonstrate that appointment of counsel would increase the likelihood of a
just determination in this case.” Id. (citing Ballard v. United States, 11 Civ. 7162
(JSR)(RLE), 2012 WL 3765022, at *1 (S.D.N.Y. Aug. 30, 2012) (denying appointment of
counsel and stating that, “other than his general comment that he is ‘completely
unfamiliar with law,’ the plaintiff “has not demonstrated any marked difficulties in
presenting his case and fails to state why appointment of counsel would increase the
likelihood of a just determination in this case.”).
To the extent plaintiff expresses concerns about mail fraud, plaintiff has
demonstrated an ability to communicate with this Court regularly about this case.
Furthermore, the undersigned has recommended granting plaintiff the ability to proceed
by electronic filing, which should ameliorate her concerns. Regardless, plaintiff’s claims
of interference with her mail appear unsupported and, without more, do not warrant the
appointment of counsel at this time.
Further, although plaintiff refers to the complexity of the legal and factual issues
in her case, the undersigned has recommended dismissal of all claims except those
relating to the condition of her confinement. 	Thus, if this Report-Recommendation &
Order is adopted, even if plaintiff were to successfully amend to set forth conditions of
confinement claims, such claims would not be overly complicated. Plaintiff has further
largely demonstrated an ability to effectively communicate her requests and concerns
through a detailed complaint and various legal filings and motions.
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Accordingly, plaintiff has failed to demonstrate that appointment of pro bono
counsel is warranted. 	Thus, it is recommended that this request be dismissed without
prejudice and with leave to renew should this case both survive section 1915 review
and dispositive motion practice.
VI. Conclusion
Wherefore, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff’s in forma pauperis applications, dkt. nos. 2, 6, 11, be
GRANTED; and it is
RECOMMENDED, that all claims against James P. Riley in his official capacity for
monetary damages, dkt. no. 1, be DISMISSED without prejudice and without leave to
amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii); and it is further
RECOMMENDED, that plaintiff’s Fourteenth Amendment38 condition of
confinement claims – deliberate indifference to serious medical needs and failure to
protect – dkt. no. 1, be DISMISSED without prejudice and with leave to amend; and
it is further
RECOMMENDED, that plaintiff’s Fourth, Sixth, and Fourteenth Amendment
claims, dkt. no. 1, be DISMISSED without prejudice and without leave to amend in
this action pursuant to Heck; and it is further
RECOMMENDED, that plaintiff’s claims against Abdalla and her requests for this
Court to investigate and/or prosecute Abdalla and to investigate and/or prosecute
unknown individuals or entities tied to her allegations of mail tampering/forgery, dkt. no.
38 As noted herein, supra, plaintiff improperly brought these claims pursuant to the Eighth Amendment.
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1, be DISMISSED with prejudice and without opportunity to amend for failure to
state a claim; and it is further
RECOMMENDED, that all claims against Judge Traci DiMezza, dkt. no. 1, be
DISMISSED with prejudice and without leave to amend due to judicial immunity
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i); and it is further
RECOMMENDED, that plaintiff’s Fourteenth Amendment due process claims
against James P. Riley in his individual capacity, dkt. no. 1, be DISMISSED with
prejudice and without leave to amend due to absolute prosecutorial immunity; and it
is further
RECOMMENDED, that all of plaintiff’s claims for injunctive and declaratory relief
be DISMISSED with prejudice; and it is further
RECOMMENDED, that the Court decline to exercise supplemental jurisdiction
over plaintiff’s state-law defamation claim, dkt. no. 1, and such claim be DISMISSED
with prejudice and without leave to amend; and it is further
RECOMMENDED, that, based on the above recommendations, the following
defendants be terminated from this action: Johnathon Spychalski, Lucas Nellis, James
P. Riley, the Honorable Traci DiMezza, Kyle L. Davis, James P. Melita, Jason Mitchell
Abdalla, and the Unknown Individuals (Doe) defendants; and it is further
RECOMMENDED, that plaintiff’s motion to file electronically, dkt. no. 10, be
GRANTED39; and it is further
39 It is recommended that if so granted, plaintiff be (1) advised and cautioned that any violation of any
condition or any abuse otherwise of participation in electronic case filing will result in the immediate
revocation of Plaintiff participating in electronic case filing, and (2) advised that the Court may revoke
electronic filing privileges if it determines in its sole discretion that plaintiff's use of the system is not
satisfactory.
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RECOMMENDED, that plaintiff’s Motion to Seal the record, dkt. no. 13, be
GRANTED insofar as there exist any medical documents in the record will be sealed
and plaintiff’s complaint, dkt. no. 1, which arguably refers to medical concerns40 plaintiff
raises in her Motion to Seal, be limited to case participants, and otherwise DENIED; and
it is further
RECOMMENDED, that plaintiff’s request “that the United States Marshals
Service be sent to retrieve the full sealed exhibit packet directly from my residence[,]”
dkt. no. 3, be DENIED;
RECOMMENDED, that plaintiff’s Motion for Counsel, dkt. no. 4, be DENIED
without prejudice; and it is
RECOMMENDED, that if the District Judge adopts this Report-Recommendation
& Order, plaintiff be given thirty days from the filing date of the District Judge’s Order
adopting this Report-Recommendation and Order to file an amended complaint solely
addressing the conditions of confinement claims, and if the plaintiff does not so file
pursuant to that Decision & Order, the action may be closed without need for further
order of the Court, and if plaintiff does so file, the amended complaint be noticed for
substantive sufficiency review pursuant to 28 U.S.C. § 1915(e)(2)(B);41 and it is
40 The complaint also identifies someone as a victim, apparently in the underlying criminal matter.
41 If the District Judge, following review of this Report-Recommendation & Order, permits plaintiff to
amend her complaint, she is advised “that an amended complaint is intended to completely replace the
prior complaint in the action, and thus it “renders [any prior complaint] of no legal effect.” International
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977), cert. denied sub nom., Vesco & Co., Inc. v.
International Controls Corp., 434 U.S. 1014 (1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d
1124, 1128 (2d Cir. 1994). Therefore, plaintiff's amended complaint must include all of the allegations
against each of the defendants against whom an opportunity to amend is allowed, such that the amended
complaint may stand alone as the sole complaint in this action. It may not incorporate any portion of the
original complaint by reference or include any claims or defendants that the District Judge dismissed with
prejudice or without opportunity to amend.
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ORDERED, that the Clerk serve this Report-Recommendation & Order on
plaintiff in accordance with Local Rules.
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),
72.42
Dated: February 2, 2026
Albany, New York
42 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.
See F ED. R. C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
federal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday,
or legal federal holiday. See id. § 6(a)(1)(c).
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