Ismail v. Albany City School District et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SALIM S. ISMAIL,
Plaintiff,
1:26-CV-297
v. 	(AJB/DJS)
ALBANY CITY SCHOOL DISTRICT, et al.,
Defendants.
APPEARANCES:
SALIM S. ISMAIL
Plaintiff, Pro Se
Albany, New York 12210
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
The Clerk has forwarded for review a Complaint filed by Plaintiff. 	Dkt. No. 1,
Compl. The filing fee in this action has not been paid, but Plaintiff has filed a motion to
proceed in forma pauperis. Dkt. No. 2. That Motion has been granted. The matter has
been referred to the undersigned for an initial review pursuant to L.R. 72.3.
I. FACTUAL ALLEGATIONS IN THE COMPLAINT
The Complaint is allegedly brought pursuant to 42 U.S.C. § 1983, 42 U.S.C. §
1985, 28 U.S.C. § 1343, 28 U.S.C. § 1350, C.P.L.R. § 1411, C.P.L.R. § 7803, 18 U.S.C.
§ 2333(a), and 18 U.S.C. § 2441. 	Compl. at ¶ 19. 	Named as Defendants to this action
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are Albany City School District, Albany City School District Board of Education, Lynne
C. Rutnik, City of Albany, Robert G. Magee, John Doe, United States of America, United
States Department of Justice, and Pamela J. Bondi. Id. at p. 1. Ms. Rutnik is identified
in the Complaint as “the incumbent Assistant Superintendent for Secondary Instruction.”
Id. at ¶ 40. 	The Complaint asserts that “she is de facto the Attorney General for the
Albany City School District.” Id. Mr. Magee is identified as “the corporate counsel for
the City of Albany,” and is alleged to be “de facto the Attorney General for the City of
Albany.” Id. at ¶ 44. Each of the individual Defendants named in the Complaint are sued
in their official capacities. Id. at ¶¶ 41, 45, & 50.
The nature of Plaintiff’s allegations is unclear. 	The Complaint raises issue with
“Albany City School District’s utter refusal to enroll [Plaintiff] in the AP Calculus BC
Class like [he] wanted & needed for [his] future.” Id. ¶ 12. According to the Complaint,
this decision was made by Plaintiff’s then-counselor, Laurie Bebb,1 who allegedly refused
to enroll Plaintiff in the course. Id. ¶ 13. The Complaint also takes issue with “Albany
City School District removing [Plaintiff] from and refusing to let [him] take the SAT on
4 Nov. 2023 at Albany High School pursuant to their 2 Nov. 2023 stay order.” 	Id. at ¶
12. The Complaint further explains that Plaintiff “was issued a stay away order on 2 Nov.
2023 from Lori A. McKenna, then-Assistant Superintendent for Secondary Instruction,
and Vincent Thompson, then-Director of Safe Schools and Violence Prevention, that was
1 Ms. Bebb is not named as a party to this action. See Compl. at p. 1.
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served to [Plaintiff] by Albany Police officer Nicholas A. Schuler2 and a few other Albany
Police officers.” 	Id. 	The Complaint also challenges Defendants’ “refusal to send
[Plaintiff’s] counsellor letter of recommendation & transcript . . . so that [he] could go to
School on a multitude of occasions.” Id. at ¶ 12. As to this claim, the Complaint states
that 	Plaintiff 	asked 	Ms. 	Bebb 	“to 	sign 	and 	send 	an 	ED 	agreement 	to 	several
Schools . . . , but she refused.” Id. at ¶ 15.
The Complaint further alleges that “Albany City School District[] refus[ed] to put
[Plaintiff’s] summer PreCalc & AP Calculus AB classes on [his] transcript and remove
the failed PreCalc from [his] transcript,” id. at ¶ 21, and “did not get [his] money back
from CollegeBoard” with regard to his removal from the SAT. Id. at ¶ 22. According to
the Complaint, Plaintiff was a student at Albany High School from 2019 to 2023, and
graduated in June of 2023. Id. at ¶ 26.
II. GOVERNING LEGAL STANDARD
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma
pauperis, “(2) . . . the court shall dismiss the case at any time if the court determines that
– . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).3
2 Ms. McKenna, Mr. Thompson, and Mr. Schuler are not named as parties to this action. See id.
3 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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In reviewing a pro se complaint, the court has a duty to show liberality toward pro
se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff)
have had an opportunity to respond,” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983) (internal citations omitted). 	Therefore, 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a 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 Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[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.” Id.
at 679 (quoting FED . R. CIV . P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
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Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
Thus, 	a 	pleading 	that 	only 	“tenders 	naked 	assertions 	devoid 	of 	further 	factual
enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).
III. DISCUSSION
A. Request for Recusal
The Court first addresses Plaintiff’s Letter Motion requesting recusal. Dkt. No. 3.
Plaintiff seeks recusal of all judges in the Northern District of New York. Id.
“Pursuant to 28 U.S.C. § 455(a), ‘[a]ny justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.’” Sposato v. Carey, 2023 WL 10365030, at *1 (N.D.N.Y. July
27, 2023), report and recommendation adopted, 2024 WL 637423 (N.D.N.Y. Feb. 15,
2024) (quoting 28 U.S.C. § 455(a)). 	“In cases where a judge’s impartiality might
reasonably be questioned, the issue for consideration is not whether the judge is in fact
subjectively impartial, but whether the objective facts suggest impartiality.” 	Lewis v.
Quiros, 2018 WL 11462398, at *1 (D. Conn. Jan. 19, 2018) (quotation, internal quotation
marks, and citation omitted). 	In other words, “[t]he ultimate inquiry is whether a
reasonable person, knowing all the facts, [would] conclude that the trial judge’s
impartiality could reasonably be questioned.” Id. (quotation and internal quotation marks
omitted) (alteration in original). “It is well settled that a judge maintains discretion in the
first instance in determining whether to disqualify him or herself, because ‘[t]he judge
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presiding over a case is in the best position to appreciate the implications of those matters
alleged in a recusal motion.’” Sposato v. Carey, 2023 WL 10365030, at *1 (quoting In
re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)) (citation omitted).
Here, in arguing that recusal is necessary, Plaintiff primarily references prior cases
filed by pro se plaintiffs that were ultimately dismissed, Dkt. No. 3 at pp. 3-6, and
summarily concludes that, consequently, “the prejudice of the Judges of this Court can
reasonably be questioned.” Id. at p. 4. Plaintiff also takes issue with the result of a prior
case he filed—Case No. 1:24-cv-982 (GTS/PJE)—that was before a different Magistrate
Judge and a different District Court Judge. Id. at pp. 4 & 6. Plaintiff asserts that, “after
seeing” the way that case was handled, he is “not willing to gamble with the others to see
whether or not they will be the same way.” Id. at p. 6.
Plaintiff has not, however, offered any objective facts to suggest that any of the
judges in the Northern District of New York have any personal bias against him.
Although Plaintiff might disagree with this Court’s recommendations in prior actions,
“that disapproval alone does not ‘constitute a valid basis for a bias or partiality motion.’”
Sposato v. Carey, 2023 WL 10365030, at *2 (quoting Liteky v. U.S., 510 U.S. 540, 555
(1994)).
The undersigned, therefore, denies the request to recuse himself from this matter.
It is further recommended that Plaintiff’s Letter Motion requesting recusal of all Northern
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District of New York judges, Dkt. No. 3, be denied. 	Having determined that recusal is
not warranted, the Court proceeds with its review of the Complaint pursuant to L.R. 72.3.
B. Rules 8 and 10
Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must
contain:
(1) 	a 	short 	and 	plain 	statement 	of 	the 	grounds 	for 	the 	court’s
jurisdiction . . . ;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
FED . R. CIV . P. 8(a). 	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 [and]
prepare an adequate defense.” Hudson v. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov.
30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
Moreover, Rule 10 of the Federal Rules of Civil Procedure provides, in part:
(b) Paragraphs; Separate Statements. 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.
“The purpose of Rule 10 is to provide an easy mode of identification for referring to a
particular paragraph in a prior pleading.” 	Flores v. Graphtex, 189 F.R.D. 54, 55
(N.D.N.Y. 1999) (internal quotation omitted). A complaint that fails to comply with basic
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pleading requirements presents too heavy a burden for defendants to craft a defense,
“provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff’s]
claims,” and may properly be dismissed. 	Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y. 1996).
Here, 	the 	Complaint 	fails 	to 	comply 	with 	the 	aforementioned 	pleading
requirements and thus does not provide the notice to Defendants that Rules 8 and 10
require. 	To illustrate the insufficiency of the Complaint, the Court provides but a few
examples.
First, the Complaint names as Defendants Rutnik, Magee, and Bondi, as well as
the Albany City School District Board of Education, the United States of America, and
the United States Department of Justice. See Compl. at pp. 1 & 11-13. Yet, the Complaint
provides no factual support explaining how any of these Defendants violated any of the
named statutes to support their inclusion in this action. As a result, the Complaint does
not provide these Defendants with fair notice of the claims being asserted against them
by Plaintiff so as to permit them to assess the sufficiency of the Complaint and give them
the opportunity to prepare an adequate defense.
Additionally, none of the eight “count[s]” contained in the Complaint indicate
which Defendants they are brought against, and several merge together numerous
different alleged violations. See generally Compl. at pp. 39-52. For example, “Count 1,”
which is entitled “Refusal to give me AP Calculus BS or to even participate in it,” id. at
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p. 39, contains a slew of factual allegations and then summarily concludes that “[a]ll of
that violates Federal Rules of Civil Procedure 12(b)(1), CPLR 3211(a)(2), the 4th
Amendment, the 5th Amendment, the 8th Amendment, the 14th Amendment, and the UN
Declaration of Human Rights Article 26.” 	Id. at ¶ 187. 	Similarly, “Count 5,” which is
entitled “Unreleased documents,” id. at p. 46, asserts numerous factual allegations and
then states “[a]ll of that violates FERPA 99.10(b), New York Education Law 3222(1), the
4th Amendment, 5th Amendment, the 8th Amendment, and the 14th Amendment.” Id. at
¶ 226.
The Complaint is also subject to dismissal on the basis that it fails to state a claim.
The Complaint brings suit pursuant to 42 U.S.C. § 1985 alleging that: “Albany City
School District . . . refus[ed] to give [Plaintiff] AP Calculus BC,” Compl. at ¶ 19; Plaintiff
“did not get [his] money back from CollegeBoard” after he was removed from the SAT,
id. at ¶ 22; and Albany City School District, the Albany Police Department, John Doe,
and other law enforcement agencies “refused to send [Plaintiff’s] documents as [he]
needed to go to School.” Id. at ¶¶ 23-25. However, “Plaintiff fails to allege any factual
basis to support a meeting of the minds between [D]efendants to achieve an unlawful end
and, further, fails to allege that [D]efendants acted with an invidious discriminatory
animus to deprive him of constitutionally protected rights,” both of which are necessary
to state a Section 1985 claim. 	Roberts v. Fleury, 2024 WL 1242231, at *14 (N.D.N.Y.
Mar. 22, 2024). Additionally, the Complaint seeks to raise claims pursuant to C.P.L.R. §
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1411, Compl. at ¶¶ 19, 21, & 23, but that is an affirmative defense pertaining to the
amount of damages recoverable in actions “for personal injury, injury to property, or
wrongful death.” C.P.L.R. § 1411.
Given its lack of clarity, the Complaint is clearly subject to dismissal. “[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.’” 	Bruce v. Tompkins Cty. Dep’t of Soc. Servs. ex rel. Kephart,
2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698,
704-05 (2d Cir. 1991)). 	Accordingly, the Court recommends that the Complaint be
dismissed, but that Plaintiff be afforded an opportunity to amend.
The Court advises Plaintiff that, should he be permitted to amend his Complaint,
any amended pleading he submits must comply with Rules 8 and 10 of the Federal Rules
of Civil Procedure. Any such amended complaint, which shall supersede and replace in
its entirety the previous Complaint filed by Plaintiff, must contain sequentially numbered
paragraphs containing only one act of misconduct per paragraph. Thus, if Plaintiff claims
that his civil and/or constitutional rights were violated by more than one defendant, or on
more than one occasion, he should include a corresponding number of paragraphs in his
amended complaint for each such allegation, with each paragraph specifying: (i) the
alleged act of misconduct; (ii) the date, including the year, on which such misconduct
occurred; (iii) the names of each and every individual who participated in such
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misconduct; (iv) where appropriate, the location where the alleged misconduct occurred;
and (v) the nexus between such misconduct and Plaintiff’s civil and/or constitutional
rights.
Plaintiff is further cautioned that no portion of his prior Complaint shall be
incorporated into his amended complaint by reference. 	Any amended complaint
submitted by Plaintiff must set forth all of the claims he intends to assert against the
Defendants and must demonstrate that a case or controversy exists between the Plaintiff
and the Defendants which Plaintiff has a legal right to pursue and over which this Court
has jurisdiction. If Plaintiff is alleging that the named defendant violated a law, he should
specifically refer to such law.
IV. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that Plaintiff’s request to recuse the undersigned be DENIED; and it
is further
RECOMMENDED, 	that 	the 	remaining 	parts 	of 	Plaintiff’s 	Letter 	Motion
requesting recusal (Dkt. No. 3) be DENIED; and it is further
RECOMMENDED, that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED
without prejudice; and it is further
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)4 days within
which to file written objections to the foregoing report. 	Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a).
Dated: April 2, 2026
Albany, New York
4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. 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. C IV. P. 6(a)(1)(C).
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