Montaque Jr. v. City of Syracuse et al

OCR transcription for search; preserved printed pages are authoritative

Case 5:25-cv-01625-BKS-PJE
Document 17
Filed 01/20/26
Page 1 of 56
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
GERALD A. MONTAQUE, JR., V. Plaintiff,
5:25-CV-01625
(BKS/PJE)
P
CITY OF SYRACUSE, et al.,
Defendants.
APPEARANCES:
Gerald A. Montaque, Jr. 233 Glenwood Avenue Syracuse, New York 13206 Plaintiff pro se
4
PAUL J. EVANGELISTA U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION & ORDER
I. Relevant Background
Plaintiff pro se Gerald A. Montaque, Jr. commenced this action on November 20, 2025, with the filing of a complaint. See Dkt. No. 1 ("Compl."). On November 21, 2025, Chief Judge Sannes issued an Order administratively closing the case for failing to comply with the filing fee requirement or submit an in forma pauperis application ("IFP"). That day, plaintiff submitted an IFP application. See Dkt. No. 4. He also submitted a motion to file electronically. See Dkt. No. 5. On November 24, the Court reopened the case. On December 16, plaintiff filed a motion to stay his related Syracuse City Court case. See Dkt. No. 7. On December 17, he filed an emergency motion for a temporary
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AUTHENTICATED U.S. GOVERNMENT INFORMATION CPO

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restraining order and preliminary injunction, which is pending before Chief Judge
Sannes. See Dkt. No. 9.1 Also on December 17, plaintiff filed a motion to compel and a
motion for in camera review, privilege log, and preservation of allegedly withheld
records. See Dkt. Nos. 9, 11. 	On December 18, plaintiff filed a submission he refers to
as a “corrected and consolidated statement of facts.” Dkt. No. 12.2 On December 17,
the Court issued a text order directing plaintiff to serve the emergency motion,
complaint, motion to stay, and text order on defendants. See Dkt. No. 10. On
December 22, 2025, plaintiff requested an “early settlement conference or judicial
mediation.” Id. at 14. On December 25, plaintiff filed a letter seeking clarification of the
status of his case and a request for an extension related to the December 17, 2025, text
order. See Dkt. No. 15. Chief Judge Sannes granted the motion in part, to the extent
that she tolled service deadlines with respect to the motion for a temporary restraining
order and preliminary injunction and related materials and referred plaintiff’s other
requests in the December 25 letter – a ruling on plaintiff’s IFP application and his
request for an order identifying the John Doe defendants or permitting limited discovery
– to the undersigned. See Dkt. No. 16. Chief Judge Sannes also referred to the
undersigned “the resetting of any service deadlines.” Id.
II. In Forma Pauperis Application
After review of plaintiff’s IFP application, the undersigned concludes that he
financially qualifies to proceed IFP in this matter. See Dkt. No. 4. Plaintiff is advised
1 On December 18, 2025, plaintiff filed a supplemental memorandum of law in support of this motion. See
Dkt. No. 13.
2 	Plaintiff provides that the submission for the “limited purpose of correcting and consolidating the factual
record for clarity” and “does not assert new claims, does not withdraw existing allegations, and does not
alter the legal theories already pleaded. It is submitted to assist the Court in evaluating the pending
motions and the operative Complaint.” Dkt. No. 12 at 1.
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that the granting of IFP status does not excuse him from full financial responsibility for
all other costs and fees he may incur in this matter.3 As the undersigned has granted
plaintiff’s IFP application, a review of his complaint pursuant to 28 U.S.C. §1915(e)(2),
28 U.S.C. §1915A is required.4
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).
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
3 	This includes, but is not limited to, copying, transcription, and witness fees.
4 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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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.”5 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));6 see also
FED. R. CIV. P. 8(a)(2) (providing that a pleading shall contain “a short and plain statement
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.
5 Hereinafter, “Fed. R. Civ. P.”
6 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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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. Complaint7
On October 13, 2025, after following him for “several blocks without any traffic
hazard,” plaintiff was pulled over by defendants C. Rich, Milot, Sarag Legge, and “a
Hispanic Officer (John Doe #2),” who are Syracuse Police Department officers. Compl.
at 2. Plaintiff “immediately began recording and politely asked for the reasonable
articulable suspicion for the stop and for any specific plate-placement issue.” Id.
Plaintiff had a single, front-mounted Ohio license plate on his vehicle. See id. Plaintiff
contends that “[o]fficers, including C. Rich, Sarah Legge, and a Hispanic officer (John
Doe #2), responded with hostility, mocked Plaintiff’s mention of his CDL, and treated his
request for a supervisor as disrespectful.” Id. at 3.
“SPD ordered the vehicle towed and seized Plaintiff’s Ohio plate without warrant,
court order, or notice of any hearing or procedure to contest the seizure.” Compl. at 3.
7 As a threshold issue, plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure (“Fed. R.
Civ. P. “) 10 as it does not state claims in numbered paragraphs, each limited to a single set of
circumstances. See F ED. R. C IV . P. 10. However, out of solicitude to the pro se plaintiff, and because the
complaint is decipherable, despite this failure, the undersigned does not base any dismissal
recommendations on this ground.
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Plaintiff states that he “renewed his registration and insurance within 24 hours of the
stop as shown by Ohio BMV Order #99983255206785 and updated Progressive
insurance cards.” Id. “Only after the tow was initiated and Plaintiff had invoked his
rights did officers issue three tickets (VTL 1163D ‘signal,’ VTL 1163D ‘signal: parked,’
and VTL 402 ‘improper plate.’).” Id. Plaintiff provides that he was not issued a citation
for “’unregistered’ or ‘uninsured’ operation on October 13, even though those were the
alleged reasons given to justify the tow and plate seizure.” Id. Plaintiff contends that
the timing and nature of the citations show that the tow and plate seizure were
retaliatory, “not grounded in lawful enforcement.” Id.
Plaintiff contends that despite renewing his registration and insurance and
providing “that documentation to the DA’s Office and SPD,” his vehicle is still
impounded and accruing fees and his Ohio license plate “remain[s] seized without any
due-process mechanism or written explanation for continued deprivation.” Compl. at 3.
Plaintiff went to “SPD Central Records” and was told that “SPD ‘does not return plates’
and that plate are sent to DMV, but no written policy, hearing procedure, or release form
was provided.” Id.
Plaintiff states that he has an October 28, 2025, plea proposal from Assistant
District Attorney (“ADA”) Michael J. Mordue, on “DA Form 437,” which “referenc[ed] VTL
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402.48 and two counts of VTL 1163d”9 and “offered amendments and dismissals but
required Plaintiff to plead guilty to amended charges and treat the plea as equivalent to
a conviction after trial, with potential suspension of his license and CDL consequences.”
Compl. at 3. The form “stated the DA’s Office was ‘ready for trial’ and instructed that
the proposal be returned directly to the court (not the DA).” Id. Plaintiff “declined to sign
the proposal, insisting on lawful reasons for the tow, release of his plate and vehicle,
and full disclosure of FOIL materials before any plea.” Id.
Plaintiff provides, on unspecified dates, he submitted “multiple FOIL requests
concerning the stop, tow, and internal communications.” Compl. at 3. On October 31,
2025, ADA Oastler10 e-mailed plaintiff “stating that he had assembled ‘most’ of the FOIL
materials” and that “they would be ‘in court’ on a vague ‘Wednesday,’ without specifying
any date, time, part, or judge.” Id. at 4. Plaintiff states that he did not receive “written
notice from the Court scheduling such a Wednesday appearance,” and did not know
what date ADA Oastler was referring to in stating “Wednesday.” Id.
Plaintiff received a November 5, 2025, “Official Notice to Appear” from Syracuse
City Court Chief Clerk Valerie James “setting Plaintiff’s first appearance for January 14,
8 N.Y. V.T.L. § 402(4): “No person shall operate or drive a motor vehicle upon the public highways of this
state having displayed thereon number plates not proper for such vehicle under the provisions of this
chapter and, upon a conviction for this offense, the number plates shall be surrendered to the court for
delivery to the commissioner. The failure to produce the certificate of registration or registration renewal
stub of a vehicle shall be presumptive evidence of displaying number plates not proper for the vehicle.
Every annual number plate issued shall remain the property of the state until the correct registration fee is
paid. Every number plate of a permanent nature for use with a removable date tag which shall be issued
shall remain the property of the state unless and until the commissioner finds that the state no longer has
use for it. Number plates belonging to the state shall be under the control of the commissioner.”
9 N.Y. V.T.L. § 1163(d): “Turning Movements and Required Signals”
10 Plaintiff contends that he names defendants ADA Bradley W. Oastler and ADA Michael J. Mordue in
their individual and official capacities “for administrative/FOIL-related conduct only.” Compl. at 1.
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2026 at 9:30 a.m., listing only three charges: VTL 1163D ‘signal: parked’; VTL 1163D
‘signal’; and VTL 402 ‘improper plates.’” Compl. at 4.
On November 10, 2025, plaintiff received an e-mail from ADA Oastler stating that
his FOIL request documents were “in court last Wednesday to be handed to you, but
you did not show up, and that the materials had instead been mailed.”11 Compl. at 4.
Plaintiff contends that Oastler’s “statement was false” as “Syracuse City Court’s official
documents” show a sole appearance for “traffic docket CR-11422-25” on January 14,
2026, and 9:30 AM, and that there had been no “Wednesday session’ . . . scheduled or
noticed to Plaintiff for early November.” Id. Plaintiff contends he received from the
Syracuse Police Department, the District Attorney’s Office, and the City of Syracuse no
“written procedure or hearing for return of Plaintiff’s property, despite its renewed
registration and multiple written motions[.]” Id. at 5.
Plaintiff complains of (1) conflicting responses to his FOIL requests, stating that
he received “[f]ive different FOIL acknowledgement letters with five conflicting
completion dates, ranging from December 2025 to February 2026, all for the same
incident; (2) ADA Oastler’s “false claim” that FOIL materials were made available for “an
in-court hand-off that never occurred,” (3) receiving “no notice” of a “‘Wednesday’ court
date and that City Court confirmed there was no such appearance”; (4) that when he
sent a formal notice to info@syracusepolice.org, it “bounced back” with “‘address not
found’ error” which “further obstruct[ed] communication”; (5) the City FOIL office telling
him that each of his FOIL requests were “separate and that original completion dates
remained in effect, despite the conflicting and unreasonable delays” and that it “refused
11 Plaintiff does not state whether he ever received the mailed documents.
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to unify the requests,” “correct the record” regarding ADA Oaster’s false reference to a
Wednesday court appearance, and “continued to push completion out as far as
February 3, 2026, while Plaintiff’s vehicle remained impounded.” Compl. at 4.
Plaintiff contends that his vehicle has accrued and is accruing substantial storage
fees, and he is without a necessary vehicle for his work as a “CDL professional and
business owner[,]” resulting in lost work opportunities and income. Compl. at 5. Plaintiff
claims that he has suffered “significant emotional distress, anxiety, and humiliation” from
“being falsely portrayed as ‘uninsured,’ ‘unregistered,’ ‘unruly,’ and as someone who
‘failed to appear for court’ when no such appearance was ever scheduled.” Id. Plaintiff
argues that “defendants’ actions[,]” collectively, were intentional, malicious, and “done
with reckless disregard for Plaintiff’s constitutional rights.” Id.
Plaintiff’s first cause of action seeks to bring claims for violations of his First and
Fourteenth Amendment rights for “retaliatory stop and false citations,” alleged against
Officers Rich, Milot, Legge, John Does 1 and 2, and the City of Syracuse. Compl. at 5.
Plaintiff contends that in response to his questioning the stop, requesting a supervisor,
and recording, “SPD officers” retaliated by towing and impounding his vehicle, seizing
his Ohio license plate, and “issuing tickets only after Plaintiff asserted his rights, in order
to punish him and shield themselves of scrutiny.” Id. Plaintiff argues that the City of
Syracuse “is liable under Monell because this retaliation occurred pursuant to its
policies or customs regarding vehicle seizures, plate retention, and tolerance of
retaliatory enforcement.” Id. at 5.
Plaintiff’s second cause of action is pursuant to the Fourth and Fourteenth
Amendments and alleged against defendants Rich; Milot; Legge, John Does 1, 2, and 3;
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City of Syracuse; and “John/Jane Doe Defendants.” Compl. at 5. Plaintiff contends,
collectively, that defendants violated the Fourth and Fourteenth Amendments when they
towed his vehicle and seized his license plate “without a warrant, court order, probable
cause, or statutory authority, and without issuing any contemporaneous ‘unregistered’
or ‘uninsured’ citation.” Id. at 6. Plaintiff asserts that the continued seizure of his
vehicle and license plate “after he renewed registration and insurance and provided
proof of compliance is an ongoing unreasonable seizure and deprivation of property.”
Id. Plaintiff contends that the tow-yard defendants “[a]cted under color of law by
following SPD orders and refusing to release the vehicle absent governmental
approval.” Id.
Plaintiff’s third cause of action alleges denial of due process and access to the
Courts in violation of the Fourteenth Amendment, alleged against the City of Syracuse,
Onondaga County, “SPD officers,” John Doe 3 (SPD records/impound clerk), John/Jane
Doe FOIL Officers, ADA Oastler, and ADA Mordue. Compl. at 6. Plaintiff states that
defendants deprived him of his property – his vehicle and license plate – without written
notice, a hearing, or “meaningful process for release.” Id. Plaintiff further contends that
(1) Oastler’s allegedly false statement regarding the FOIL responses being available
during the allegedly nonexistent “Wednesday” Court appearance; and (2) the “FOIL
office” issuing “multiple conflicting dates,” refusing to consolidate his FOIL requests, and
“knowingly delaying” access to records violated his procedural due process rights and
interfered with right of access to the Courts. See id. Plaintiff asserts that “Onondaga
County is liable under Monell for the DA’s Office’s patterns of FOIL obstruction, false
statements, and refusal to correct the record.” Id.
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Plaintiff’s fourth cause of action seeks to set forth a claim against ADA Oastler,
ADA Mordue, Onondaga County, and City of Syracuse for “fabrication of records and
false ‘failure to appear’ narrative” in violation of the Fourteenth Amendment for Oastler’s
alleged fabrication of a “false court-date and failure-to-appear records.” Compl. at 6-7.
Plaintiff contends that “fabricated statements were used to justify ongoing deprivation of
Plaintiff’s property and to obstruct his efforts to obtain judicial records and judicial
review” in violation of the Fourteenth Amendment. See id. at 7. He contends that
Oastler’s conduct “is not a core prosecutorial function,” rather, “administrative
misconduct and record falsification.” Id. He also contends that defendants’ alleged
conduct violated his First Amendment rights because, in retaliation for his asking for the
“articulable suspicion” for the traffic stop, asking to speak to a supervisor, and recording
the encounter, defendants Rich, Milot, Legge, John Doe 1 and 2, and the City of
Syracuse towed his vehicle, seized his license plate, and issued him traffic tickets “in
order to punish him and shield themselves from scrutiny.” Id.
Plaintiff provides that his fifth cause of action is against the City of Syracuse and
Onondaga County pursuant to Monell. See Compl. at 7. Plaintiff states that the City of
Syracuse and County of Onondaga are liable for all of the alleged constitutional
violations set forth in his complaint under Monell because the alleged constitutional
violations “were caused by the policies, practices, or customs of the City of Syracuse
and Onondaga County, including”: (1) “a policy/custom of seizing and retaining vehicles
and out-of-state plates without charges or process”; (2) “[f]ailure to train SPD officers
regarding reciprocity for out-of-state plates without charges or process”; (3) “[f]ailure to
train and supervise FOIL officers to comply with N.Y. Public Officers Law § 89(3)”;
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(4) “DA Office practices of misrepresenting court dates and FOIL status instead of
providing accurate records and notice”; and (5) “tolerance of retaliatory enforcement of
misconduct rather than correction and discipline.” Id.
Plaintiff’s sixth cause of action raises several state-law claims pursuant to this
Court’s supplemental jurisdiction. See Compl. at 7. Plaintiff contends that “SPD
officers, SPD records staff, tow-yard defendants, and municipalities” committed
(1) conversion, (2) trespass to chattels, (3) negligence, and (4) intentional infliction of
emotional distress in violation of New York State law. See id. Plaintiff contends that the
identified defendants “wrongfully exercised dominion over Plaintiff’s vehicle and Ohio
plate, constituting conversation and trespass to chattels.” Id. Plaintiff argues that the
conduct “also constitutes negligence and gross negligence in seizing, retaining, and
failing to release Plaintiff’s property after notice of compliance.” Id. Plaintiff contends
that “Defendants’ intentional pattern of false statements, FOIL obstruction, retaliatory
tickets, and prolonged deprivation of basic transportation rises to intentional infliction of
emotional distress under New York Law.” Id.
Plaintiff asserts that his damages are the expenses relating to towing, storage,
and administrative fees; loss of use of his vehicle; lost wages/income; expenses for
alternative transportation; emotional distress, humiliation, anxiety, loss of sleep; and
damage to his reputation “as a professional driver and business owner.” Compl. at 7-8.
He seeks compensatory damages of “not less than $2,500,000.00”; punitive damages
against the individual defendants; “declaratory relief that Defendants’ actions violated
Plaintiff’s constitutional rights”; that the Court “[o]rder the immediate release of Plaintiff’s
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vehicle and Ohio license plate . . . , and waiver or reimbursement of all towing and
storage fees”; and costs. Id. at 7-8.
In plaintiff’s December 18, 2025, filing titled “corrected and consolidated
statement of facts”12 he says, at the time of the stop in question, his vehicle “bore a
single Ohio license plate affixed to the front of the vehicle,” and that he “possessed
insurance-related documentation associated with his vehicle,” but that he was
“temporarily unable to immediately retrieve all digital records on his phone while
simultaneously recording the encounter.” Dkt. No. 12 at 1. 	He further states that his
vehicle registration had lapsed at the time of the stop. Id. 13 Plaintiff provides,
“[b]ecause the stop occurred on a federal holiday, Plaintiff could not renew his
registration” until the next day. See id. Plaintiff contends that “[d]espite the minor and
temporary nature of the registration lapse, and despite the availability of reasonable
alternatives such as issuance of a summons or allowing the vehicle to remain legally
parked pending a renewal, a supervising officer ordered the vehicle towed.” Id. at 1.
He further states that at no point during the stop “did any officer allege that
Plaintiff’s vehicle was uninsured, and no citation was issued for lack of insurance.”
Compl. at 3. Plaintiff further adds that the seizure of his property was “not justified by
public safety concerns but were punitive in nature.” Id. at 2.
12 Plaintiff contends that this filing is intended only “to assist the Court in evaluating the pending motions
and the operative complaint.” Dkt. No. 12. Out of special solicitude, because plaintiff’s filing indicates an
intention that this filing is not intended to supersede and replace the original pleading in its entirety, as an
amended complaint would have done, the undersigned will interpret this filing as a supplement to the
complaint.
13 	The undersigned does not herein detail all of the statements included in this filing because most of it is
redundant of the original complaint. The undersigned has, however, carefully read and considered the
entirety of this filing.
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B. Discussion14
1. FOIL-Based Claims
Plaintiff raises various Fourteenth Amendment due process claims arising out of
his FOIL requests, contending that the various and/or conflicting dates of completion,
alleged delays, and ADA Oastler’s allegedly-false statements regarding a court
appearance that plaintiff missed,15 during which time some of the requested documents
would have been made available to him, violated his Fourteenth Amendment Due
process rights. See Compl. at 6. These allegations fail to state a claim under the
Fourteenth Amendment.
Where a plaintiff raises a Fourteenth Amendment due process claim, a Court
must first assess whether the plaintiff has a protected property interest in the underlying
subject. See Jackson v. Wilcox, No. 1:23-CV-130 (MAD/CFH), 2023 WL 2756489, at *5
(N.D.N.Y. Apr. 3, 2023), report and recommendation adopted, No. 1:23-CV-130
(MAD/CFH), 2023 WL 4230351 (N.D.N.Y. June 28, 2023) (quoting Narumanchi v. Bd. of
Trustees of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988)).
“If a protected interest is identified, a court must then consider whether the
government deprived the plaintiff of that interest without due process.” Id.
“As several courts in th[is] Circuit have held, ‘a plaintiff has no property
interest in obtaining FOIL documents.’” Lawrence v. Baxter, No. 03-CV-
228S, 2004 WL 1941347, at *3 (W.D.N.Y. Aug. 31, 2004) (collecting cases)
(citations omitted), aff’d, 139 F. App’x. 365 (2d Cir. 2005) (summary order).
“Specifically, because FOIL documents need only be produced after a
request and investigation by the state entity, individuals making such
request 	do 	not 	have 	anything 	beyond 	a 	mere 	expectation 	in 	such
14 The Court observes that plaintiff raised closely-related claims in a case pending before the Western
District of New York. See Montaque v. Hanlon, 25-CV-694 (JLS) (commenced July 28, 2025). There, the
Court denied plaintiff’s application for a temporary restraining order, Montaque v. Hanlon, No. 25-CV-694
(JLS), 2025 WL 2848563 (W.D.N.Y. Aug. 29, 2025) (appeal pending), pursuant to the Younger abstention
doctrine, and review of the merits of plaintiff’s amended complaint pursuant to 28 U.S.C. § 1915 is
presently pending in that District.
15 As noted, plaintiff contends is false, contending he never received notice of the “Wednesday”
appearance, and the city court confirmed that there was no appearance scheduled. See Compl.
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documents, and, thus, do not have an entitlement to requested documents
that is protected by the Fourteenth Amendment.” Simpson v. Town of South
Hampton, No. 06-CV-6743, 2007 WL 1755749, at *4 (E.D.N.Y. 2007); see
also Abreu, 2018 WL 11466956, at *25 (“Multiple district courts in this circuit
have held that a plaintiff has no constitutionally protected interest in
obtaining FOIL documents.”).
Jackson, 2023 WL 2756489, at *5. As plaintiff does not have a property interest in the
FOIL material, he cannot state a claim for Fourteenth Amendment due process
violations in connection with the alleged delay in processing requests, failure to
consolidate, or failure to produce FOIL documents. See id. Accordingly, it is
recommended that this claim be dismissed for failure to state a claim. See id.
Even if plaintiff were to assert16 that the above allegations also demonstrate a
violation of New York FOIL law, “it is well settled that such a claim, standing alone, is
insufficient to support a Section 1983 claim.” Jackson, 2023 WL 2756489, at *3; see
also Summa v. Richmond Cnty. Dist. Attorney’s Off., No. 25-CV-04283 (HG) (LKE),
2025 WL 2597174, at *3 (E.D.N.Y. Aug. 27, 2025) (“Plaintiff's claims against the various
defendants to the extent he requests access to the documents in his FOIL requests
cannot proceed as this claim does not arise under federal law. Plaintiff requested
documents from the District Attorney’s Office pursuant to New York’s Freedom of
Information Law (“FOIL ”); Morrison v. MTA New York City Transit, No. 24-cv-5992,
2024 WL 4450778, at *2 (E.D.N.Y. Oct. 9, 2024) (“Federal courts do not have
independent jurisdiction to enforce state laws granting public access to official state
records.”); Melvin v. City of New York, No. 24-cv-4118, 2025 WL 692126, at *6
16 	Plaintiff does not state a separate cause of action for this, but within his “Monell” section against the
City of Syracuse and Onondaga County, he contends that defendants “failed to train and supervise FOIL
officers to comply with N.Y. Public Officers Law § 89(3).” Compl. at 7. It is unclear if this reference is
intended to raise a separate cause of action for a violation of state FOIL law, but the undersigned
includes this analysis for the sake of completeness and clarity.
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(S.D.N.Y. Mar. 4, 2025) (“FOIL violations do not constitute federal constitutional claims
sufficient to state a claim pursuant to Section 1983”). Rather, “[t]he appropriate vehicle
for challenging denials of access guaranteed by the New York Freedom of Information
Law is a state court proceeding pursuant to N.Y.C.P.L.R. Article 78 upon exhaustion of
administrative remedies.” Jackson, 2023 WL 2756489, at *4-5 (quoting Ramos v.
Culick, No. 6:16-CV-01312 (FJS/TWD), 2017 WL 835406, at *4 (N.D.N.Y. Feb. 9, 2017)
(quoting Schuloff v. Fields, 950 F. Supp. 66, 67-68 (E.D.N.Y. 1997)), report and
recommendation adopted, 2017 WL 823580 (N.D.N.Y. Mar. 2, 2017) (additional
citations omitted). Accordingly, it is recommended that plaintiff’s FOIL-related
Fourteenth Amendment due process claims be dismissed with prejudice for failure to
state a claim, and, to the extent his complaint may be liberally read as raising violations
of New York State FOIL law, such claims also be dismissed with prejudice for failure to
state a claim.
2. Fourteenth Amendment Procedural Due Process
Plaintiff contends that the seizure of his license plate and the towing and
impounding of his vehicle and the failure to (1) release his vehicle once he presented
defendants with current registration and/or insurance, or (2) provide a procedure
through which he could seek their return, violates his Fourteenth Amendment due
process rights. See Compl. at 5-6. Plaintiff collectively raises this claim against Officers
Rich, Milot, Legge, John Does 1-3, City of Syracuse, and the tow-yard defendants. See
id. at 5.
As to plaintiff’s Fourteenth Amendment procedural due process claims, “[a] claim
under Section 1983 for deprivation of procedural due process raises two threshold
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questions: (1) ‘whether the plaintiff possessed a liberty or property interest’ and, if so,
(2) ‘what process was due before the plaintiff could be deprived of that interest.’” Colson
v. New York Police Dep’t, No. 13-CV-5394 (JG), 2015 WL 64688, at *9 (E.D.N.Y. Jan.
5, 2015). Where the concern relates to post-deprivation procedure, “the Supreme Court
has distinguished between (a) claims based on established state procedures and (b)
claims based on random, unauthorized acts by state employees.” Hellenic Am.
Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996).
The touchstone of due process . . . is ‘the requirement that a person in
jeopardy of serious loss [be given] notice of the case against him and
opportunity to meet it.’” Spinelli v. City of New York, 579 F.3d 160, 169 (2d
Cir. 2009) (second alteration in original) (quoting Mathews, 424 U.S. at 348–
49, 96 S.Ct. 893); see also Mathews, 424 U.S. at 333, 96 S.Ct. 893 (“The
fundamental requirement of due process is the opportunity to be heard ‘at
a meaningful time and in a meaningful manner.’” (quoting Armstrong v.
Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965))).
HVT, Inc. v. Port Auth. of New York & New Jersey, 798 F. Supp. 3d 349, 358 (E.D.N.Y.
2025). “In determining ‘what process is due,’ we recognize that ‘due process is flexible
and calls for such procedural protections as the particular situation demands.’” Id.
(quoting Francis v. Fiacco, 942 F.3d 126, 142-43 (2d Cir. 2019)).
a. Seizure of License Plate, Towing of Vehicle, Initial Impoundment
The undersigned first addresses plaintiff’s claim with respect to the seizure and
retention of his Ohio license plate.17 Plaintiff does not have a property interest in his
license plate; thus, the removal and confiscation of his license plate is not a “seizure”
17 	The undersigned notes that this cause of action is also improper because plaintiff makes a
collective/group pleading which does not clarify which defendants are involved, and, thus, does not set
forth each defendants’ personal involvement in the alleged constitutional violations. For example, despite
naming the tow-yard defendants in the cause of action, there is no allegation that they had anything to do
with the seizure of the license plate. Plaintiff’s cause of action fails to meet Rule 8’s pleading standards.
See Boykin v. Westchester Cnty. Jail, No. 22-CV-10513 (CS), 2024 WL 4252040, at *8 (S.D.N.Y. Sept.
20, 2024).
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under the Fourth Amendment. See VW Credit Leasing LTD. v. Runway Towing Corp.,
757 F. Supp. 3d 271, 284 n.6 (E.D.N.Y. 2024), reconsideration denied, No. 20-CV-
05306 (HG) (MMH), 2025 WL 501218 (E.D.N.Y. Feb. 14, 2025) (quoting Perry v.
McDonald, 280 F.3d 159, 169 (2d Cir. 2001) (“The Court notes that the Second Circuit
has held that ‘automobile license plates are governmental property intended primarily to
serve a governmental purpose,’ in the speech context, further undermining VW's
argument that it held a protected property interest in the license plates.”). Therefore, it
is recommended that plaintiff’s Fourth Amendment claim, with respect to the seizure of
the license plate, be dismissed with prejudice for failure to state a claim upon which
relief can be granted.
With respect to plaintiff’s vehicle, assuming for purposes of this review that
plaintiff is the owner of his motor vehicle, he has a property interest the vehicle.
However, as to the initial seizure, plaintiff’s case falls within the community caretaking
exception to the Fourth Amendment’s warrant requirement. Police officers, under the
community caretaking exception, “may exercise their discretion in deciding whether to
impound a vehicle,’ and ‘whether a decision to impound is reasonable under the Fourth
Amendment is based on all the facts and circumstances of a given case.” VW Credit
Leasing LTD., 757 F. Supp. 3d at 284. Given that plaintiff did not have proper
registration and either did not have valid insurance or proof of valid insurance at the
time of the stop and could not legally drive the vehicle without registration, insurance,
or, once seized, a license plate, towing and impoundment of the vehicle was reasonable
within the meaning of the Fourth Amendment. See VW Credit Leasing LTD., 757 F.
Supp. 3d at 284. (quoting Miranda v. City of Cornelius, 429 F.3d 858, 865 (9th Cir.
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2005) (“Where, as here, ‘the driver's violation of a vehicle regulation prevents the driver
from lawfully operating the vehicle,’ and ‘it is necessary to remove the vehicle from a[ ]
public location,’ ‘impoundment may be proper under the community caretaking
doctrine.’”). Further, as plaintiff was present at the time of the tow, it can be reasonably
concluded that he was aware that the vehicle was being towed and impounded. Cf.
VW Credit Leasing LTD, 757 F. Supp. 3d at 287 (finding that lessee had
constitutionally-sufficient pre-deprivation process before vehicle was towed in that she
was advised, through multiple letters, that failure to pay overdue tolls and lapsed
insurance coverage could result in suspension of vehicle registration and that an
unregistered vehicle could not be legally driven).
Plaintiff contends that he was not ticketed for lack of registration as support for
his claim that defendants, collectively, in violation of the Fourth Amendment, towed his
vehicle and seized his plate “without a warrant, court order, probable cause, or statutory
authority, and without issuing any contemporaneous ‘unregistered’ or ‘uninsured’
citation.” Comp. at 3, 5. However, “[i]t is well-settled that “the states may enact laws
requiring owners of motor vehicles to register those vehicles.’” Dan v. State of New
York, 1:24-CV-01233 (MAD/PJE) (quoting Ali v. Siwek, 23-CV-354 (LJV), 2023 WL
9184481, at *3, 3 n.4 (W.D.N.Y. Dec. 18, 2023), then citing Munz v. Harnett, 6 F. Supp.
158, 159-60 (S.D.N.Y. 1933) (“[A] state as an exercise of the police power may
prescribe uniform regulations covering the ownership and operation” of motor vehicles
and observing that “there cannot be the slightest doubt of the validity of [the]
requirement” that motor vehicles be registered) (citing, inter alia, Hendrick, 235 U.S. at
622).
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Although plaintiff contends that he was not issued any tickets for his operation of
an unregistered vehicle, that allegation is belied by the four corners of the complaint.
Plaintiff provides that (1) his summons from the Court indicates that he violated NY VTL
402, and (2) ADA Mordue sent plaintiff a plea proposal that “referenc[ed] VTL § 402.4.”
Compl. at 3. Such law provides, “[t]he failure to produce the certificate of registration or
registration renewal stub of a vehicle shall be presumptive evidence of displaying
number plates not proper for the vehicle.” NY § VTL 402(4). Thus, the citation for a
violation of NY § VTL 401(4),18 which charges plaintiff as having an improper license
plate because of its lack of registration, and plaintiff’s admission in his complaint that he
did not have valid registration and insurance (or, at minimum, did not present it to the
officers during the stop) demonstrates that the tow and impoundment of the vehicle was
reasonable as plaintiff was not legally allowed to continue to drive his vehicle. See NY
VTL § 401 (“[n]o motor vehicle shall be operated or driven upon the public highways of
this state without first being registered in accordance with the provisions of this article,
except as otherwise expressly provided in this chapter.”). Moreover, in admitting that he
was operating his vehicle without valid registration, he concedes that, even if not
ticketed for violating NY VTL § 401, specifically, his operation was also violative of that
law. 	Thus, plaintiff’s Fourteenth Amendment due process claim with respect to the
ticketing for VTL 402(4), the towing of his vehicle, and its initial impoundment fails to
state a claim upon which relief can be granted. Thus, it is recommended that this claim
18 NY VTL § 401: “Registration of motor vehicles; fees; renewals. 1. Registration by owners. a.
No motor vehicle shall be operated or driven upon the public highways of this state without first being
registered in accordance with the provisions of this article, except as otherwise expressly provided in this
chapter.”
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21
be dismissed, and the dismissal be with prejudice as a better pleading cannot cure
these defects.
b. Continued Impoundment
As to the continued impoundment of his vehicle, it appears that plaintiff may be
alleging two separate, related issues: (1) insufficient notice regarding post-deprivation
remedies, and (2) inadequacy of post-deprivation remedies with respect to the
continued impoundment of his vehicle. See generally Compl.
i. Notice
Plaintiff contends that “SPD, the DA’s Office, and the City of Syracuse refused to
provide any written procedure or hearing for return of Plaintiff’s property,19 despite his
renewed registration and insurance and multiple written motions[.]” Compl. at 5.
Although plaintiff does not explicitly set this out in a separate cause of action, out of
special solicitude, the undersigned is of the opinion that plaintiff is attempting to allege
that, in violation of the Fourteenth Amendment, those defendants violated his
Fourteenth Amendment right to notice of post-deprivation procedures with respect to his
vehicle in that he was not advised as to how to challenge the fact of the impoundment,
seek its release, or challenge the associated impoundment fees.20
“The due process clause of the Fourteenth Amendment requires that individuals
receive notice and an opportunity to be heard before the Government deprives them of
property.” Toyota Lease Tr. v. Vill. of Freeport, No. 20-CV-2207, 2023 WL 4443992, at
19 	As the undersigned has concluded that plaintiff has no property interest in his license plate, this
argument is addressed only with respect to the vehicle.
20 	To be clear, this differs from receipt of notice about the fact of the impoundment as plaintiff was
present during its towing and does not dispute that he was aware it was to be impounded. Rather,
plaintiff complains of a lack of notice regarding the return of his vehicle.
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*9 (E.D.N.Y. Jan. 24, 2023). Procedural due process requires notice reasonably
calculated under all the circumstances “to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.” Walker v. New
York State Dep’t of Health, 788 F. Supp. 3d 427, 501 (E.D.N.Y. 2025) (quoting Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
As noted, assuming plaintiff is the owner of the subject vehicle, he has a property
interest in his vehicle. Insofar as plaintiff suggests that he has not been informed of any
procedure to pursue in order to seek the release of his vehicle from impoundment or
challenge the related fees, the law provides that he must receive such notice. Plaintiff
does not provide the Court with a copy of the notice he received from the Court
regarding the January 14, 2026, traffic court proceeding or any other communication
relating to this proceeding. However, if it is the case that the communication plaintiff
received from the court related only to the traffic citations and does not indicate whether
he could challenge the impoundment and related fees at this proceeding, the notice of
the January 14, 2026, hearing likely would not suffice to give notice of the post-
deprivation procedure/process to challenge the continued impoundment and fees. See
Bowser v. City of New York, No. 23 CIV. 6183 (DG) (VMS), 2025 WL 1707174, at *7
(E.D.N.Y. Feb. 25, 2025) (“The Court rejects Defendants’ argument that the Court
should construe the notice of the right to a hearing as to the fine for the Ticket as notice
of the right to challenge the boot and tow fees at the same hearing. Notice that a person
can challenge one particular fee or violation cannot reasonably be understood to be
notice of a right to challenge other fees. The omission of a notice may have very real
consequences for the person accused of the violation. An individual, such as Plaintiff,
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23
may make the calculus that challenging a $60.00 fine for a ticket may not be worthwhile
but may decide, if given notice of the right to a hearing to challenge a $185.00 boot fee,
$185.00 tow fee, and/or related storage fees, that engaging in such hearing process
would be worthwhile. If notice of the right to a hearing provides the recipient with notice
of the right to challenge only some, but not all, of the subject matters at issue, the notice
is of no value to the recipient as to the subject matter not included in the notice, such
that Defendants’ argument is unpersuasive.”).
However, the undersigned determines that the claim cannot proceed. As stated,
it fails to meet Rule 8’s requirements. As noted, as plaintiff has not provided the Court
with any of the communications, the Court cannot assess whether plaintiff was given
any notice or if that notice could be sufficient under Fourteenth Amendment. Further, as
plaintiff has improperly set forth a group pleading and has not sufficiently alleged the
named defendants’ personal involvement21 in the alleged notice violation, the claim also
fails to meet Rule 8’s pleading requirements. See Gonzalez v. Yepes, No. 19-CV-267,
2019 WL 2603533, at *7 (D. Conn. June 25, 2019) (“As a corollary of the personal
involvement requirement, complaints that rely on ‘group pleading’ and fail to differentiate
21 “It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.’” Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)); see also Moore v.
Westchester Cnty., No. 18-CV-7782, 2019 WL 3889859, at *5 (S.D.N.Y. Aug. 19, 2019) (“[N]onspecific
allegations that rely on group pleading and fail to differentiate as to which defendant was involved in the
alleged unlawful conduct are insufficient to state a claim.”). To the extent he is suggesting that John Doe
#1 is liable due to his supervisory role alone, it is well settled that, under Monell, “’[t]o establish a violation
of § 1983 by a supervisor, as with everyone else, then, the plaintiff must establish a deliberate, intentional
act on the part of the defendant to violate the plaintiff's legal rights.’ Id. at 618 (internal quotation marks
and citation omitted). It is not sufficient to plead that an official was ‘conceivably personally involved.”’
Forrest v. Cnty. of Greene, 676 F. Supp. 3d 69, 78 (N.D.N.Y. 2023) (quoting Tangreti v. Bachmann, 983
F.3d 609 (2d Cir. 2020)).
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as to which defendant was involved in the alleged unlawful conduct are insufficient to
state a claim.”) (collecting cases)).
With respect to plaintiff’s referencing the “DA’s Office” as the offending party in
the notice violation, plaintiff cannot name the office itself due to Eleventh Amendment
immunity. See Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir.1997); Ying Jing Gan v.
City of New York, 996 F.2d 522, 529 (2d Cir.1993). Further, within this cause of action,
plaintiff does not identify which defendants at the DA’s Office allegedly violated his
Fourteenth Amendment right to notice and opportunity to be heard on the deprivation. If
this Court were to allow plaintiff an opportunity to amend to name individual district
attorneys in connection with this claim, claims against the district attorneys in their
official capacities would similarly be barred by Eleventh Amendment immunity. See id.
Claims against individual district attorneys in their individual capacities would be barred
by absolute prosecutorial immunity. See Pinaud v. County of Suffolk, 52 F.3d 1139,
1147 (2d Cir.1995) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976)). Although plaintiff states, with respect to and
in connection with other claims in the complaint, that the DA Oastler and DA Mordue
were being named for their nonprosecutorial or administrative conduct, which would
place them outside of the protection of absolute prosecutorial immunity, it is a close
question whether the alleged conduct of unnamed district attorneys in failing to provide
this procedure amounts to “acts of investigation or administration,” Dory v. Ryan, 25
F.3d 81, 83 (2d Cir. 1994), outside of the protection of prosecutorial immunity or are
associated with their function as an advocate. Hill v. City of New York, 45 F.3d 653,
661 (2d Cir. 1995) (alteration in original). Out of special solicitude to plaintiff, the
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undersigned recommends that plaintiff’s claims in this cause of action against the “DA’s
Office” be dismissed with prejudice, but that the dismissal be without prejudice to
plaintiff being afforded leave to amend to name individual district attorneys in their
individual capacities should he be able to demonstrate that they were acting in their
non-advocacy capacity in association with the alleged denial of procedural due process
with respect to notice in connection with the continued impoundment of his vehicle.
Similarly, to the extent plaintiff names “SPD” in connection with this Fourteenth
Amendment procedural due process notice claim, the Syracuse Police Department is an
administrative arm of the municipality and not a proper defendant in a section 1983
action. Within this cause of action, plaintiff does not identify any specific police officers
nor explain how they were involved in the alleged notice-related violation of his
Fourteenth Amendment procedural due process rights. Accordingly, insofar as alleged
against the Syracuse Police Department, it is recommended that such claim be
dismissed with prejudice. Insofar as plaintiff wishes to amend to raise any claims
against the individual officers in their individual capacities, out of special solicitude, it is
recommended that plaintiff be afforded that opportunity to amend.
As for the City of Syracuse, the undersigned recommends this claim be
dismissed without prejudice and with opportunity to amend as plaintiff has failed to
sufficiently allege that his Fourteenth Amendment procedural due process rights were
violated (with respect to notice of the procedure to seek the release of his vehicle from
impoundment or challenge the related fees) as a result of a municipal policy or custom
or failure to train or supervise. See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d
Cir. 1995) (citing Monell v. Dept. of Soc. Services of City of New York, 436 U.S. 658,
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691 (1978)) (noting that municipality may not be held liable in an action under 42 U.S.C.
§ 1983 for actions alleged to be unconstitutional by its employees below the
policymaking level solely on the basis of respondeat superior”); Wray v. City of New
York, 490 F.3d 189, 195 (2d Cir. 2007) (quotations and citation omitted) (“To hold a city
liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is
required to plead and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.”).
b. Adequacy of Post-Deprivation Hearing
In addition to the notice issues set forth above, plaintiff contends that he was
deprived of his vehicle without a hearing or meaningful process. See Compl. at 6
(“Defendants deprived Plaintiff of his vehicle . . . without any hearing, or any meaningful
process for release[.]”). “To determine whether a plaintiff was deprived of property
without due process of law in violation of the Fourteenth Amendment,” courts “identify
the property interest involved, and “determine whether the plaintiff received
constitutionally adequate process in the course of the deprivation. See VW Credit
Leasing LTD., 2025 WL 501218 (E.D.N.Y. Feb. 14, 2025) (quoting O'Connor v. Pierson,
426 F.3d 187, 196 (2d Cir. 2005)).
To the extent plaintiff suggests that he is alleging that he was denied procedural
due process due to the inadequacy of a post-deprivation hearing, plaintiff has not
sufficiently pleaded enough facts to set forth a claim. Further, “plaintiff has not
demonstrated ‘the absence or inadequacy of any post-deprivation hearing following the
impoundment of his vehicle.’” Hawthorne by Hawthorne, 492 F. Supp. 3d at 304
(quoting Clynch v. Chapman, 285 F. Supp. 2d 213, 223 (D. Conn. 2003) (explaining that
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27
the plaintiff, whose car was towed following his arrest for a DUI, failed to state a
“procedural due process claim” where there was no claim about the absence or
inadequacy of a post-deprivation hearing)). Indeed, “judges in this district have
consistently found that the availability of state tort law causes of action constitutes an
adequate post-deprivation state remedy.” Alloul v. City of New York, No. 09 CIV 7726
JSR FM, 2010 WL 5297215, at *6 (S.D.N.Y. Dec. 21, 2010) (citing Smith v. City of New
York, No. 03 Civ. 7576(NRB), 2005 WL 1026551, at *8 (S.D.N.Y. May 3, 2005); David v.
N.Y.P.D. 42nd Precinct Warrant Squad, No. 02 Civ. 2581(DC), 2004 WL 1878777, at *5
(S.D.N.Y. Aug. 23, 2004); see also Dawkins v. Jones, No. 03 Civ. 0068(DAB)(AJP),
2005 WL 196537, at *17 (S.D.N.Y. Jan. 31, 2005) (due process satisfied by availability
of New York Court of Claims to redress unauthorized acts of state officials); Smith v.
O’Connor, 901 F.Supp. 644, 647 (S.D.N.Y.1995).
Plaintiff has not demonstrated an absence of adequate post-deprivation state
remedies through traffic court or an Article 78 proceeding as he does not provide the
Court with any information about any state administrative or judicial remedies he may
have pursued. See Byrd v. Westchester Cnty. Police Dep’t, No. 1:24-CV-9547 (LTS),
2025 WL 1456203, at *10 (S.D.N.Y. May 21, 2025) (“Plaintiff has alleged nothing to
suggest that she has pursued any type of state administrative review or judicial review,
including state court judicial review via an Article 78 proceeding, to challenge the
parking and/or traffic violation fines assessed against her and/or the booting and towing
of her vehicle as a result of her delinquency with respect to paying those fines. Thus,
because Plaintiff has not shown that she has pursued any such state process, she
cannot assert that she has been denied procedural due process.” ) (citing Vialez v. New
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York City Hous. Auth., 783 F. Supp.109, 113 (S.D.N.Y. 1991)). Further, he commenced
this action before any court appearances. Accordingly, as plaintiff has “not shown the
Court that []he has pursued any such state process, []he cannot assert that he has been
denied procedural due process.” Id.
In addition, this claim suffers from similar defects as his notice claim in that he
improperly has made a collective pleading against several defendants: here, “City of
Syracuse, SPD officers, John Doe #3, FOIL officers, Oastler, Mordue, and Onondaga
County,” Compl. at 6, without setting forth each defendants’ personal involvement.
Thus, this claim does not satisfy Rule 8’s pleading requirements. As it relates to the
municipal defendants, as discussed further in the Monell section of this Report-
Recommendation & Order, he has also failed properly allege that the constitutional
violation was a result of a municipal policy, custom, failure to supervise or train.
Accordingly, it is recommended that plaintiff’s Fourteenth Amendment procedural due
process claim with respect to the adequacy of post-deprivation remedies is
recommended to be dismissed without prejudice and with opportunity to amend due to a
failure to comply with Fed. R. Civ. P. 8 by failing to provide sufficient information about
the state process(es) he pursued, failure to specify each defendants’ personal
involvement in the alleged constitutional violation, and failure to sufficiently plead a
Monell claim against the municipal defendants.
More specifically, as with the above notice claim, to the extent plaintiff names the
City of Syracuse and Onondaga County, such claim is recommended to be dismissed
without prejudice and with opportunity to amend for failure to allege a nonconclusory
Monell claim. To the extent plaintiff names “SPD officers,” this is an improper group
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29
pleading. If plaintiff intends to name individual police officers in their individual
capacities in connection with this claim, it is recommended that this claim be dismissed
without prejudice and with leave to replead to identify each police officer and specify
each defendants’ personal involvement in this alleged Constitutional violation.
3. Access to the Courts
Plaintiff raises a claim for denial of access to the courts, purportedly pursuant to
the Fourteenth Amendment, in connection with his allegations surrounding ADA Oastler
providing plaintiff a “false” Wednesday court appearance and alleging that he failed to
appear22 – plaintiff has failed to state a claim upon which relief can be granted. See
Compl. at 6.
The Second Circuit has recognized a right of access to the courts, stemming
from the First Amendment right to petition for redress, the Privileges and
Immunities Clause of Article IV, section 2, and the Due Process Clauses of
the Fifth and Fourteenth Amendments. “Denial of access” claims typically
fall into one of two categories. First, litigants may claim that “systemic official
action frustrates a plaintiff or plaintiff class in preparing and filing suits.”
Christopher v. Harbury, 536 U.S. 403, 413 (U.S.2002). Thus, prisoners have
sued for access to a law library, or indigent plaintiffs have sued for waivers
of filing fees. Secondly, litigants may claim that they have irrevocably lost
the ability to file a lawsuit, typically because of a massive governmental
cover-up denying plaintiffs the ability to gather evidence.
Ponterio v. Kaye, No. 06 CIV. 6289 HB, 2007 WL 141053, at *9 (S.D.N.Y. Jan. 22,
2007) (internal citations omitted). Plaintiff’s claims fall in the first category.
Plaintiff does not demonstrate any denial of access to the courts or any “actual
injury.” Abreu v. Bascue, No. 9:18-CV-0186 (MAD/ATB), 2018 WL 11466956, at *12
(N.D.N.Y. May 1, 2018). “A hypothetical injury is not sufficient to state a claim for
22 	The Court addresses the access-to-the-courts claim as it relates to plaintiff’s FOIL allegations in the
FOIL section of this Report-Recommendation & Order, infra.
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violation of the right of access to the courts.” Id. (quoting Amaker v. Haponik, No. 98-
CV-2663, 1999 WL 76798, at *3 (S.D.N.Y. Feb. 17, 1999)). “‘Mere ‘delay in being able
to work on one's legal action or communicate with the courts does not rise to the level of
a constitutional violation.’” Id. (quoting Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003)).
Despite defendant Oastler’s alleged false statement regarding a Wednesday
court appearance, plaintiff contends that he contacted Syracuse City Court who
“confirmed” that there was no such appearance ever scheduled. Compl. at 4, 6. Indeed,
plaintiff contends that he has his first appearance relating to the traffic citations is
scheduled for January 14, 2026, which had not yet occurred at the time plaintiff
commenced this action. See id. at 4. Thus, with no “Wednesday” appearance
scheduled, he will not face any consequences for Oastler’s allegedly false allegation
that plaintiff failed to appear. Plaintiff has not shown that defendants have done
anything that has prevented plaintiff’s ability to communicate with the Court nor has he
alleged that they impeded his January 14, 2026, appearance.23
Accordingly, even assuming as true for purposes of this review that Oastler told
him about an appearance that did not exist and accused plaintiff of failing to appear, this
conduct does not amount to denial of access to the Courts for the reasons detailed
herein.24 Accordingly, plaintiff’s allegations on this ground fail to state a claim upon
which relief can be granted.
23 	To the extent plaintiff suggests that his lack of access to the FOIL materials amounts to delay of
access to the Courts, that argument fails, as discussed infra.
24 	Further, as this statement regarding the existence of a “Wednesday” appearance would have been in
his role as a prosecutor, Oastler would be entitled to prosecutorial immunity. Oastler’s statement
regarding an appearance, even if intentionally false or misleading, relates to the presenting of the state’s
case. Prosecutorial immunity covers “virtually all acts, regardless of motivation, associated with [the
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4. First Amendment Retaliation
Generally speaking, the First Amendment prohibits government officials
from retaliating against individuals for engaging in constitutionally protected
speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). “To plead a First
Amendment retaliation claim a plaintiff must show: (1) he has a right
protected by the First 	Amendment; (2) the defendant's actions were
motivated or substantially caused by his exercise of that right; and (3) the
defendant’s actions caused him some injury.” Dorsett v. County of Nassau,
732 F.3d 157, 160 (2d Cir. 2013). The third element can be satisfied by
alleging “either that plaintiff's speech has been adversely affected by the
government retaliation or that he has suffered some other concrete harm.”
Id. The issuance of traffic tickets is sufficient injury to support a First
Amendment claim. See Lilly v. Hall, 16-CV-242, 2019 WL 275799, at *4
(W.D.N.Y. Jan. 22, 2019).
Lilly v. Swick, No. 19-CV-176V(SR), 2023 WL 3901566, at *8 (W.D.N.Y. Mar. 22, 2023),
report and recommendation adopted, No. 19-CV-176 (JLS/HKS), 2023 WL 3559698
(W.D.N.Y. May 18, 2023).
a. Towing, Impoundment of Vehicle & Seizure of License Plate
Assuming for the sake of this review only that questioning the basis for the traffic
stop, asking to speak to a supervisor, and video recording the stop constitutes protected
speech under the First Amendment, plaintiff admits that he was operating his vehicle
with suspended registration. See generally Compl. His complaint also states that he
“renewed his insurance” after the stop, a concession that he was also driving without
auto insurance.25 Id. at 3 (“renewed his registration and insurance within 24 hours of
prosecutor's] function as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (quoting
Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). “
25 	In his December 12, 2025, submission, plaintiff states that he “possessed insurance-related
documentation associated with his vehicle[.]” Dkt. No. 12. He does not say that the insurance-related
documentation was current and for the vehicle he was driving. Plaintiff further states that he was
“temporarily unable to immediately retrieve all digital records” because he was recording[,]” but does not
contend that the digital records to which he refers included current, valid auto insurance. See id. Finally,
he does not contend, either in the complaint or supplement, that he presented proof of valid auto
insurance during the stop. See generally id.
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the stop . . . .”); id. at 6 (discussing continued seizure of license plate and vehicle “after
he renewed registration and insurance and provided proof of compliance”). 	Further,
plaintiff concedes that he did not present proof of valid registration or insurance at the
time of the stop. See Compl.; Dkt. No. 12.
Plaintiff’s claims that his vehicle was towed in retaliation for his exercise of his
First Amendment rights are conclusory and contradicted by the complaint. Despite
plaintiff’s contention that the absence of traffic citations for the unregistered vehicle and
that he was not issued any traffic citations until the tow truck was ordered is evidence of
retaliation and/or bad faith, he does not dispute that his vehicle was unregistered and
uninsured at the time of the stop and that he did not present current and valid
registration or insurance to the officers. See Compl., Dkt. No. 12. Decidedly, as noted,
supra, plaintiff was ticketed for a violation of VTL § 402(4), which is improper plates
based on a lack of, or failure to demonstrate, valid registration. Further, even if he were
not ticketed for that infraction(s), as he concedes he did not have valid registration at
the time of the stop, plaintiff was not legally permitted to operate his vehicle; thus, the
seizure was a reasonable response to these violations. Because plaintiff was not
permitted to operate a vehicle with lapsed registration and/or lack of insurance under
the New York State Vehicle and Traffic Law, plaintiff has failed to demonstrate that the
citation for violating VTL § 402(4), the towing and impoundment of the vehicle, and
seizure of the license plate were “motivated or substantially caused by his exercise of
that right.” Lilly, 2023 WL 3901566, at *8 (citing Dorsett, 732 F.3d at 160).
Accordingly, the undersigned recommends that plaintiff’s First Amendment claim
with respect to the towing and license plate seizure be dismissed for failure to state a
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claim. As a better pleading cannot cure the defects noted herein, it is recommended
that the dismissal be with prejudice and without opportunity to amend.
b. Traffic Citations
Plaintiff contends that the traffic citations he was issued were “false.” Compl. at
5. He alleges that he was followed for “several blocks without any traffic hazard[,]” id. at
6, “was stopped by Syracuse Police Department officers despite no traffic violation
being identified prior to the stop,” Dkt. no. 12 at 1, 2, and that the traffic citations were
issued “only after . . . Plaintiff had invoked his rights, in order to punish him and shield
themselves from scrutiny.” Compl. at 2. Liberally read, plaintiff is alleging that he did not
commit any of the traffic violations for which he was ticketed; rather, the citations were
issued in retaliation for his exercise of his First Amendment rights.
i. NY VTL § 402(4) Citation
Firstly, as it relates to the traffic citation for NY VTL § 402(4), as noted, supra,
plaintiff has conceded that he operated his vehicle with expired registration, and
plaintiff’s ticket for an invalid license plate is due to that absence of a valid registration.
Thus, as plaintiff concedes to violating the law underlying the citation for which he was
issued, plaintiff cannot demonstrate that defendants’ actions in issuing a traffic citation
under NY VTL § 402(2), were “motivated or substantially caused by” his exercise of his
First Amendment rights. Dorsett, 732 F.3d at 160. Thus, his allegation that this citation
was retaliatory fails and must be dismissed for failure to state a claim. As a better
pleading cannot cure this claim, the dismissal is recommended to be with prejudice.
ii. NY VTL § 1163(d) Citations
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As to the remaining traffic citations, plaintiff has contended, collectively, that the
traffic citations he was issued were “false” and that they came only after he asked for
the reason for the stop, requested a supervisor, and recorded the encounter. See
Compl. at 5. At this early stage and out of an abundance of caution, the undersigned
concludes that it is at least arguable that plaintiff may be able to demonstrate that he did
not violate NY VTL § 1163(d), and, thus, state a claim that the police officer defendants
present at the stop – who plaintiff identifies as Rich, Milot, Legge, and John Does 1-2 –
retaliated against him in response to the exercise of his First Amendment rights with
respect to the issuance of § 1163(d) citations.
However, because such claim is inextricably intertwined with plaintiff’s traffic
court case, the most reasonable approach is that this Court stay any litigation on this
matter until the traffic court matter, including any potential appeals, is complete. See
Kirschner v. Klemons, 225 F.3d 227, 238 (2d Cir. 2000) (“Accordingly, we have held
that abstention and dismissal are inappropriate when damages are sought, even when
a pending state proceeding raises identical issues and we would dismiss otherwise
identical claims for declaratory and injunctive relief, but that a stay of the action pending
resolution of the state proceeding may be appropriate.”) (emphasis added) (citing Giulini
v. Blessing, 654 F.2d 189, 192-94 (2d Cir.1981)).26 As plaintiff’s First Amendment claim
is premised on the allegation that he did not violate NY § VTL 1163(d), should the state
court reach a determination that plaintiff did commit these traffic violations or if plaintiff
26 “The Supreme Court has declined to reach the issue whether Younger applies to claims for money
damages, but has noted that even if it does, the federal suit should be stayed, rather than dismissed, if
the money damages sought could not be obtained in the pending state proceeding, even if the money
damages sought could be obtained in a separate state proceeding.” Kirschner, 225 F.3d at 238 (citing,
inter alia, Deakins v. Monaghan, 484 U.S. 193, 201-03 (1988)).
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should plead guilty to such violations, it cannot be said that defendants’ “actions were
motivated or substantially caused by his exercise of that right.” Lilly, 2023 WL 3901566,
at *8. However, if the state court finds that plaintiff did not commit these traffic
violations, it appears plaintiff should be permitted to proceed beyond the initial review
stage with respect his claim that the § 1163(d) citations were issued in retaliation for his
exercise of his First Amendment rights. As the state law proceeding is determinative of
his First Amendment claim in this Court, a stay appears the most appropriate approach
here.27
Accordingly, it is recommended that plaintiff’s First Amendment claims against
Rich, Milot, Legge, and John Does 1-2 in their individual capacities, with respect to the
27 	With thoroughness and judicial economy in mind, the undersigned notes that the couple of district
courts in this Circuit that have addressed the question of whether Heck bar applies to traffic violations
have found in the negative. See Glasgow v. Beary, 2 F. Supp. 3d 419, 426 (E.D.N.Y. 2014) (“Rather,
plaintiff was found to have committed a violation of the New York Vehicle and Traffic Law, which state law
defines as “not a crime.” N.Y. Vehicle & Traffic Law § 155. Heck does not sweep so broadly. See Heck,
512 U.S. at 487, 114 S.Ct. 2364 (“But if the district court determines that the plaintiff's action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed . . . .”) (emphasis added).”). It does not appear that the Second
Circuit has spoken on the question of whether Heck bars review of section 1983 claims arising out of
traffic violations absent favorable termination. However, several district and Circuit courts outside of the
Second Circuit have held that Heck does bar review of section 1983 claims arising out of traffic violations.
See Austin v. City of Tuskegee, Ala., 335 F. App’x 856, 856-57 (11th Cir. 2009) (summary order) (finding
that a § 1983 action predicated on the plaintiff's “allegedly illegitimate traffic stop and conviction for driving
55 mph in a 45 mph zone” was barred by Heck because a judgment in plaintiff's favor “would necessarily
imply the invalidity of his conviction for speeding”); see also Dauven v. Oregon, 44 F. App’x 255, 256 (9th
Cir. 2002) (summary order) (finding dismissal of the plaintiffs’ 1983 claims “arising from a traffic citation
and subsequent state court proceedings” “was proper because, to the extent the Dauvens’ claims would
effectively require reversal of the judgment of the Washington County Justice Court, the claims are barred
by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).”); Kreis v. Smith,
No. 24-CV-3686, 2025 WL 860496, at *4 (E.D. Pa. Mar. 19, 2025) (“Since success on Kreis's claim would
necessarily imply the invalidity of his convictions on the charges based on the traffic citations, his claim is
not cognizable.”). As the plaintiff had not been found guilty of any traffic violations at the time he
commenced this action, Heck review appears not yet ripe. See also Stegemann v. Rensselaer Cty.
Sheriff's Office, 648 F. App’x 73, 76 (2d Cir. 2016) (summary order) (“Heck bars a § 1983 claim based on
an extant conviction, but it has no application to an anticipated future conviction.”); see also Wallace v.
Kato, 549 U.S. 384, 393 (2007) (refuting the argument that “an action which would impugn an anticipated
future conviction cannot be brought until that conviction occurs and is set aside” and stating “[w]e are not
disposed to embrace this . . . extension of Heck”) (emphasis in original); McDonough v. Smith, 139 S. Ct.
2149, 2157 (2019) (noting that “some claims do fall outside Heck’s ambit when a conviction is merely
‘anticipated’ ”). The Heck question may, however, come to the forefront should plaintiff later advise the
Court that he was found guilty of these traffic violations.
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section 1163(d) citations, be stayed during the pendency of the traffic court
proceedings, and (1) if the traffic court reaches guilty determination with respect to the §
1163(d) traffic violations and any appeals are decided against plaintiff, or if he pleads
guilty, when the stay is lifted, such claim be dismissed; and (2) if the state court
determines that he did not commit the traffic violations, plaintiff may return to the Court
to request that the stay be lifted and his First Amendment claim in connection with the §
1163(d) violations proceed.
5. Fourth Amendment Unreasonable Seizure
Plaintiff contends that the seizure of his license plate and the tow and
impoundment of his car violate the Fourth Amendment. See Compl. at 6. The Fourth
Amendment prevents against unreasonable seizures of personal property. Personal
property is seized within the meaning of the Fourth Amendment “when there is some
meaningful interference with an individual’s possessory interests in that property.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984). At least one Court in this Circuit
has held that “[t]he impoundment of an automobile is a seizure within the meaning of
the Fourth Amendment.” Loomis v. City of Salamanca Mayor Michael Smith, No. 19-CV-
00440 JLS/JJM, 2020 WL 13822312, at *7 (W.D.N.Y. Nov. 5, 2020) (quoting Miranda v.
City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005)).
The undersigned recommends that plaintiff’s Fourth Amendment unreasonable
seizure claim relating to the towing and impoundment of his vehicle be dismissed.
Although in the context of a lapsed inspection, rather than registration, in Hawthorne by
Hawthorne, the Southern District of New York rejected the plaintiff’s Fourth Amendment
unreasonable seizure claim where police towed his vehicle, nothing that a motor vehicle
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37
could not be “operated or parked on the public highways of this state” absent a valid
inspection sticker; thus, the “[p]laintiff had no legal right to continue to operate his
vehicle after Deputy Kennedy’s discovery that his inspection sticker had expired.”
Hawthorne by Hawthorne, 492 F. Supp. 3d at 298. That reasoning applies equally here.
NYS VTL § 401 similarly dictates that “[n]o motor vehicle shall be operated or driven
upon the public highways of this state without first being registered in accordance with
the provisions of this article . . . .” 	Further, the tow and impoundment of plaintiff’s
vehicle also falls within the “community caretaking” exception to the Fourth Amendment
warrant requirement because is reasonable to conclude that an unregistered vehicle
and/or uninsured vehicle is dangerous to the safety of the public such that the seizure is
justified. “‘It is well established that police have the authority, despite the absence of a
warrant, to seize and remove from the streets automobiles in the interests of public
safety and as part of their community caretaking functions—an authority that is beyond
reasonable challenge.’” VW Credit Leasing LTD. v. Runway Towing Corp., 757 F.
Supp. 3d 271, 285 (E.D.N.Y. 2024), reconsideration denied, No. 20-CV-05306 (HG)
(MMH), 2025 WL 501218 (E.D.N.Y. Feb. 14, 2025) (quoting United States v. Lyle, 919
F.3d 716, 728 (2d Cir. 2019)). As plaintiff did not have valid registration, it was
reasonable for the police to tow his vehicle as plaintiff could not “lawfully drive” his
vehicle away. See id.
Although plaintiff contends that there were “reasonable alternatives” to towing
and impoundment, such as allowing his vehicle to be parked until he could renew his
registration, even if the officers were not required by law to tow or impound his vehicle,
that his vehicle had an expired registration made for “an objectively reasonable basis for
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impoundment.” Hawthorne, 492 F. Supp. 3d at 298; see also id. (“Thus, even if [the
defendant officer] acted in part based on improper movies, Plaintiff does not plausibly
allege [the defendant] exercised his discretion to impound ‘solely for the purpose of
investigation.”)(quoting Lyle, 919 F.3d at 731).
The undesigned finds the same with respect to any allegation that the continued
impoundment of his vehicle violates the Fourth Amendment. See Shaul v. Cherry
Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004)); Gerte v. Borough
of Naugatuck, No. 19-CV-1511, 2021 WL 1165362, at *5 (D. Conn. Mar. 26, 2021)
(“Where an initial seizure of property was reasonable, the ‘failure to return the items
does not, by itself, state a separate Fourth Amendment claim of unreasonable seizure,’
and improper retention of property may be addressed as a procedural due process
claim.”) (quoting Shaul, 363 F.3d at 187). Accordingly, it is recommended that the
Fourth Amendment unreasonable seizure claim be dismissed for failure to state a claim.
As a better pleading will not cure these defects, it is recommended that the dismissal be
with prejudice and without leave to amend.
6. Monell
1. City of Syracuse
With respect to the remaining First Amendment claim – retaliation with respect to
the citations for alleged violations of NY § VTL 1163(d) – plaintiff contends that the City
of Syracuse28 is “liable under Monell because this retaliation occurred pursuant to its
policies or customs regarding vehicle seizure, plate retention, and tolerance of
retaliatory enforcement.” Compl. at 5. Similarly, as to plaintiff’s Fourteenth Amendment
28 	Plaintiff does not name Onondaga County in his First Amendment claim (“Count I”). Compl. at 5.
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procedural due process rights with respect to the continued impoundment of his vehicle,
plaintiff contends that the “SPD”29 towed his vehicle without “notice of any hearing or
procedure to context the seizure.” Id. at 3.
Plaintiff also only conclusorily pleads the existence of a formal policy or custom
with respect to the First Amendment and Fourteenth Amendment claims. See Compl.
at 7; Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL 1379652, at *13
(S.D.N.Y. Mar. 26, 2015) (“[M]ere allegations of a municipal custom, a practice of
tolerating official misconduct, or inadequate training and/or supervision are insufficient
to demonstrate the existence of such a custom unless supported by factual details.”);
see Triano v. Town of Harrison, NY, 895 F. Supp. 2d 526, 535 (S.D.N.Y. 2012)
(collecting cases applying the pleading standards discussed in Iqbal to Monell
pleadings). “Although there is no heightened pleading requirement for complaints
alleging municipal liability under § 1983, see Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993), a complaint does not ‘suffice
if it tenders naked assertion[s] devoid of further factual enhancement.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
An “official policy or custom” of the municipality can be shown in several ways:
(1) a formal policy officially endorsed by the municipality;
(2) actions 	taken 	by 	government 	officials 	responsible 	for
establishing 	municipal 	policies 	related 	to 	the 	particular
deprivation in question; (3) a practice so consistent and
widespread that it constitutes a “custom or usage” sufficient
to 	impute 	constructive 	knowledge 	of 	the 	practice 	to
policymaking officials; or (4) a failure by policymakers to train
29 	As noted, supra, in addressing plaintiff’s procedural due process claim with respect to the continued
impoundment, plaintiff may not proceed against the police department pursuant to Monell, and even if the
Court interprets this claim as intended to have been made against the City of Syracuse, the claim still fails
to demonstrate that the alleged violation was pursuant to an official policy or custom or a failure to train or
supervise.
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or supervise subordinates to such an extent that it amounts to
“deliberate indifference” to the rights of those who come in
contact with the municipal employees.
Dorsett-Felicelli, Inc. v. Cnty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y. 2005)
(citations omitted); see also Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011)
(“A municipal policy may be pronounced or tacit and reflected in either action or
inaction.”); Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004)
(“[W]here a policymaking official exhibits deliberate indifference to constitutional
deprivations caused by subordinates, such that the official’s inaction constitutes a
deliberate choice, that acquiescence may be properly thought of as a city policy or
custom that is actionable under § 1983.”) (internal quotations and citations omitted).
Despite alleging that the City of Syracuse had “policies or customs regarding
vehicle seizure, plate retention, and tolerance of retaliatory enforcement,” “[a]
policy/custom of seizing and retaining vehicles . . . without charges or process,” a
“failure to train SPD officers regarding reciprocity for out-of-state registrations and lawful
towing authority,” Compl. at 5, plaintiff does not explain what most of those policies
actually were, offer factual support for these claims, or allege a causal link between the
policies and the alleged constitutional deprivations. See Gerken v. Gordon, No. 1:24-
CV-00435 (MAD/CFH), 2024 WL 4608307, at *13 (N.D.N.Y. Oct. 29, 2024), report and
recommendation adopted, No. 1:24-CV-435 (MAD/CFH), 2024 WL 5001402 (N.D.N.Y.
Dec. 6, 2024), aff’d, No. 24-3336, 2025 WL 2847429 (2d Cir. Oct. 8, 2025) (citing
Meyers v. Becker, No. 1:23-CV-173 (DNH/CFH), 2023 WL 4424128, at *4 (N.D.N.Y.
May 31, 2023) (concluding that the plaintiff’s complaint was “insufficient to allege a
claim for municipal liability” because the “[p]laintiff does not state what Schoharie
County’s alleged policy was or how it negatively impacted [him]”); see also Syfert v. City
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of Rome, No. 6:17-CV-0578 (GTS/TWD), 2018 WL 3121611, at *7 (N.D.N.Y. Feb. 12,
2018) (collecting cases dismissing Monell claims where the complaint contains no
factual support for the existence of an unconstitutional policy or custom and only
conclusory allegations referencing a failure to train); Outlaw v. City of Hartford, 884 F.3d
351, 373 (2d Cir. 2018) (explaining that a Monell claim requires the plaintiff to show “a
direct causal link between a municipal policy or custom and the alleged constitutional
deprivation”). The undersigned concludes that plaintiff has failed to sufficiently plead
that the City of Syracuse’s alleged violation of his First Amendment right with respect to
the allegedly false and retaliatory traffic citations was due to a municipal policy or
custom. See Triano v. Town of Harrison, NY, 895 F. Supp. 2d 526, 532 (S.D.N.Y.
2012) (quoting Newton v. City of New York, 566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008))
(“Normally, ‘a custom or policy cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the [municipality].’”).
As the undersigned recommends with respect to the City of Syracuse, this claim
be dismissed without prejudice. It is recommended that plaintiff then be given an
opportunity to amend to plead municipal liability against the City of Syracuse in
connection with this claim. However, as the undersigned has recommended that his
First Amendment claim be stayed, that stay recommendation encompasses any
amended First Amendment claim against the City of Syracuse. Thus, review of any
amended claim is recommended to be stayed pending completion of the traffic court
proceedings and any resulting appeals.
2. Onondaga County
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Plaintiff contends that “Onondaga County is liable for the DA’s Office’s pattern of
FOUL obstruction, false statements, and refusal to correct the record. Comp. at 6.
Firstly, as the undersigned has concluded that there are no constitutional claim
associated with this alleged conduct, there would be no claim Monell claim against the
County. However, “Count V” of his complaint, plaintiff contends that the City and
County are liable for the seizure of his vehicle and alleged failure to train Syracuse
Police Department Officers. 	Plaintiff’s Monell claim against Onondaga County with
respect to the Fourteenth Amendment notice and post-deprivation process claims fails
for the same reasons detailed with respect to his First Amendment claims against the
City of Syracuse. To the extent plaintiff wishes to bring any Monell claim against
Onondaga County for Fourteenth Amendment violations, it is recommended that such
claims be dismissed without prejudice and with opportunity to aemdn.
a. Individual Officers, Official Capacity
The claims against the individual municipal officers in their official capacities are
duplicative of the claims against the City/County based on their alleged policies or
customs. See Dudek v. Nassau Cnty. Sheriff’s Dep’t, 991 F. Supp. 2d 402, 413
(E.D.N.Y. 2013) (citing, inter alia, Ky. v. Graham, 473 U.S. 159, 165-66 & 167 n.14
(1985) (holding that “[o]fficial-capacity suits, in contrast [with personal-capacity suits],
‘generally represent only another way of pleading an action against an entity of which
an officer is an agent’” and that “[t]here is no longer a need to bring official-capacity
actions against local government officials, for under Monell, supra, local government
units can be sued directly”) (quoting Monell, 436 U.S. at 690 n.55). Accordingly, it is
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43
recommended that the claims against the individual municipal officers in their official
capacities be dismissed as duplicative of the claims against the City/ County.
7. Demand for Immediate Release of Vehicle &
Waiver/Reimbursement of Fees
In his complaint, plaintiff seeks “injunctive relief”30 by way of immediate release of
his vehicle and license plate and a waiver or reimbursement of all towing and storage
fees. See Compl. at 8. The undersigned observes that the request for injunctive relief in
the complaint can also be dismissed as an improper request as it “sounds in the realm
of the writ of mandamus[,]” DiBello v. Town of N. Greenbush Plan. Bd., No. 1:09-CV-
00692 (LEK), 2012 WL 6058136, at *4 (N.D.N.Y. Dec. 6, 2012).31
30 	Although plaintiff indicates in his complaint that he seeks a declaration that defendants violated his
constitutional rights, because a finding by this Court in plaintiff’s favor on the merits underlying this case
would involve a determination that defendants violated his constitutional rights, this request for
“declaratory” relief is unnecessary. See VW Credit Leasing LTD., 757 F. Supp. 3d at 290 (citing
Performing Arts Ctr. v. Actor's Equity Ass’n, No. 20-cv-2531, 2022 WL 16755284, at *16 (E.D.N.Y. Aug.
25, 2022) (““[A] request for a declaratory judgment is not a cause of action; it is a request for a remedy
that does not exist independent of a plausible underlying claim for relief.”)).
Further, the undersigned observes that the Younger abstention doctrine bars requests for
declaratory relief; however, it does not bar plaintiff’s request for monetary damages. See Rivers v.
McLeod, 252 F.3d 99, 101-02 (2d Cir. 2001) (“[T]he Younger doctrine is inappropriate where the litigant
seeks money damages for an alleged violation of § 1983.”). The Younger doctrine may, however, bar his
request for injunctive relief in the complaint.
Application of this Younger abstention doctrine has been extended to the three following
categories of state court proceedings: (1) state criminal prosecutions; (2) civil enforcement
proceedings that are “akin to criminal prosecutions”; and (3) civil proceedings “that
implicate a State’s interest in enforcing the orders and judgments of its courts.” Sprint
Commc'n, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013). It applies to claims for injunctive relief,
as well as to claims for declaratory relief, sought in a federal court, that would cause that
court to intervene in any of those abovementioned types of state court proceedings. See
Kirschner v. Klemons, 225 F.3d 227, 235 (2d Cir. 2000).
Byrd v. Westchester Cnty. Police Dep't, No. 1:24-CV-9547 (LTS), 2025 WL 1456203, at *7 (S.D.N.Y. May
21, 2025); see also Montaque v. Hanlon, No. 25-CV-694 (JLS), 2025 WL 2848563, at *2 (W.D.N.Y. Aug.
29, 2025) (“Because federal courts generally do not interfere with ongoing state court proceedings, see
Younger v. Harris, 401 U.S. 37, 46 (1971), Montaque's motions are denied.”). As there are separate
motions for injunctive relief pending before the District Judge, Dkt. No. 7, 8, which request the same relief,
the undersigned declines to reach the Younger question with respect to the injunctive relief requested in
the complaint, especially because the relief has been recommended to be dismissed as improperly
sounding in mandamus relief.
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“The common-law writ of mandamus . . . is intended to provide a remedy for a
plaintiff only if he has exhausted all other avenues of relief and only if the defendant
owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984).
Further, “the 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)). Here, the Court does not have
mandamus jurisdiction to order the municipal entities to immediately (1) release his
plate or vehicle, nor (2) waive/reimburse fees. See Walker, 2025 WL 3287025, at *4.
7. Tow-Yard Defendants
Plaintiff contends that the tow-yard defendants acted under the color of state law
insofar as they “follow[ed] SPD orders and refus[ed] to release the vehicle absent
governmental approval[,]” which he says violates the Fourteenth Amendment rights.
Compl. at 6. Courts have regularly rejected arguments such as plaintiff’s with respect to
tow companies being held to be state actors/acting under color of state law. See VW
Credit Leasing LTD., 757 F. Supp. 3d at 289 (“Courts have rejected the notion that
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private towing companies operating pursuant to licenses, permits, or contracts issued
by the state are state actors. “) (citing Calderon v. Burton, 457 F. Supp. 2d 480, 488
(S.D.N.Y. 2006) (“Companies that provide services to municipalities . . . are not thereby
transformed into state actors . . . where, as here, the function performed (towing cars)
has not been historically, traditionally and exclusively the prerogative of the state.”)).
Even assuming the tow-yard had a contract with the City to provide towing and
impoundment services to the City, “(no such contract is pleaded, but I am bending over
backwards for plaintiff), there is no indication that [the City] had any proprietary interest
[in the tow-yard company] – a factor deemed significant by the Second Circuit Court of
Appeals in determining whether there exists a symbiotic relationship between the state
and a private party.” Calderon, 457 F. Supp. 2d at 488 (citing Hadges v. Yonkers
Racing Corp., 918 F.2d 1079, 1082 (2d Cir.1990), cert. denied, 499 U.S. 960 (1991));
cf. Mercedes-Benz Fin. Svcs. USA, LLC v. City of New York, 770 F. Supp. 3d 643
(S.D.N.Y 2025) (“Here, there is more than mere licensing—YTR’s towing of the Vehicle
is joint action with and directed by Yonkers.”).
Plaintiff has also presented no basis to find that the tow-yard defendants acted
under the color of state law in connection with his Fourteenth Amendment due process
claim with respect to the continued impoundment of his vehicle. He has not
demonstrated that the municipality derived profit from the tow-yard company’s towing or
impoundment of plaintiff’s vehicle. See Calderon, 457 F. Supp. 2d at 488 (quoting
Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982); Blum v. Yaretsky, 457 U.S. 991,
1004 (1982); Black by Black v. Indiana Area School Dist., 985 F.2d 707, 711 (3d
Cir.1993) (“No facts are alleged tending to suggest that the Village derived any profit
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from A & P's towing of cars. Numerous cases hold that companies that provide services
to municipalities pursuant to contracts are not thereby transformed into state actors—at
least where, as here, the function performed (towing cars) has not been historically,
traditionally and exclusively the prerogative of the state.”). Moreover, plaintiff has not
alleged nor provided any evidence that the tow-yard defendants “were involved in the
decision to impound the vehicle or had reason to know that the decision was [allegedly]
unlawful.” Perkins v. Halas, No. 3:18-CV-01081-MEG, 2025 WL 685980 (D. Conn. Mar.
4, 2025). However, out of special solicitude to the pro se plaintiff, it is recommended
that the Fourteenth Amendment due process claim relating to continued impoundment
against the tow-yard defendants be dismissed against the tow-yard defendants without
prejudice and with opportunity to amend should he be able to demonstrate that the tow-
yard defendants acted under the color of state law.32
8. State Law Claims
Plaintiff contends that (1) “SPD officers, SPD records staff, tow-yard defendants,
and municipalities wrongly exercised dominion over plaintiff’s vehicle and Ohio plate,
constituting conversion and trespass to chattels”; (2) their conduct in “seizing, retaining,
failing to release Plaintiff’s property after notice of compliance” amounts to negligence
and gross negligence; and (3) “intentional pattern of false statements, FOIL obstruction,
retaliatory tickets, and prolonged deprivation of basic transportation rises to intentional
infliction of emotional distress under New York law.” Compl. at 1. Plaintiff’s state law
claims are an improper collective pleading, and, thus, fail on this ground alone. See
Moore, 2019 WL 3889859, at *5 ((“[N]onspecific allegations that rely on group pleading
32 	The undersigned addresses any state-law claims pled against the tow-yard defendants in the state-
law section of this Report-Recommendation & Order.
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and fail to differentiate as to which defendant was involved in the alleged unlawful
conduct are insufficient to state a claim.”); see also Lawrence v. Shattick, No. 8:24-CV-
656 (MAD/DJS), 2025 WL 542587, at *8 (N.D.N.Y. Feb. 19, 2025) (affirming dismissal
of state law claims under Rule 8(a), noting that the complaint failed to explain how each
defendant committed each state law tort: “[t]he various Defendants are accused of a
variety of misconduct over a span of time elsewhere in the Complaint and the broad
assertion that all are liable for these state law torts without any explanation of how each
is alleged to have committed the torts is not permissible.”); Smith v. D’Agostino, No. 25-
CV-1265-MAV-CDH, 2025 WL 3525935, at *11 (W.D.N.Y. Dec. 9, 2025) (quoting
Discon Inc. v. NYNEX Corp., No. 90-CV-546A, 1992 WL 193683, at *16 (W.D.N.Y. June
23, 1992) (“It is not the duty of the defendants or this Court to sift through the Complaint
and guess which factual allegations support which claims.”).
As an additional issue, to the extent plaintiff seeks to bring his state law claims
against municipal defendants,33 plaintiff has not demonstrated that he filed a notice of
claim on the municipality, which, if true, may afford an alternate ground to bar any state-
law tort claims against the municipality. See N.Y. G EN. MUN . LAW §§ 50-e, § 50–i; Alloul
v, 2010 WL 5297215, at *7-8.
Next, although the group pleading and lack of personal involvement serve as
grounds for dismissal of all of plaintiff’s state law claims against all defendants, several
of plaintiff’s allegations also fail on the merits. As the undersigned concludes that
plaintiff’s federal claims with respect to the tow, seizure of his plate, and initial
impoundment are without merit, his state law claims for conversion, trespass to chattels,
33 	Given plaintiff’s collective pleading approach, it is not entirely clear to the undersigned whether plaintiff
intends to raise state law claims against the City of Syracuse/Onondaga County. See Compl. at 7.
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and negligence/gross negligence – which arise out of and relate to those federal claims
– similarly fail. To wit, plaintiff bases his state law claims on the allegation that
defendants “wrongfully exercised dominion over Plaintiff’s vehicle and Ohio plate,
constituting conversion and trespass to chattels” and that the tow and seizure amount to
negligence. Compl. at 7. However, as the undersigned has already established that
the police officer defendants had legal authority to seize his license plate, order his
vehicle towed, and initially impound his vehicle due to his driving without a valid
registration – conduct he admits – his state law claims with respect to the seizure of the
license plate, tow, and initial impoundment fail to state a claim. Accordingly, plaintiff’s
state law claims for conversion, trespass to chattels, and negligence fail to state a claim
upon which relief can be granted.
Under New York law, to sufficiently plead a claim for intentional infliction of
emotional distress, a plaintiff must allege “(1) extreme and outrageous conduct;
(2) intent to cause, or reckless disregard of a substantial probability of causing, severe
emotional distress; (3) a causal connection between the conduct and the injury; and
(4) severe emotional distress.” Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir.
2001). “A claim for intentional infliction of emotional distress is generally unavailable
where other traditional tort remedies are available.” Ivery v. Baldauf, 284 F. Supp. 3d
426, 441 (W.D.N.Y. 2018) (citation and quotation marks omitted). “In New York, claims
for intentional infliction of emotional distress are ‘extremely disfavored,’ and ‘[o]nly the
most egregious conduct has been found sufficiently extreme and outrageous to
establish’ such a claim.” Ivery v. Baldauf, 284 F. Supp. 3d 426, 441 (W.D.N.Y. 2018)
(quoting Medcalf v. Walsh, 938 F.Supp. 2d 478, 488 (S.D.N.Y. 2013); then citing
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Tebbenhoff v. Elec. Data Sys. Corp., 244 F.Appx. 382, 384 (2d Cir. 2007) (summary
order); see also Semper v. New York Methodist Hosp., 786 F.Supp.2d 566, 586
(E.D.N.Y 2011) (“this highly disfavored cause of action is almost never successful”)
(internal quotes omitted); Clark v. Hanover Ins. Grp., Inc., No. 3:24-CV-348 (SVN), 2025
WL 2053366, at *7 (D. Conn. July 22, 2025) (dismissing IIED claim, noting that the
“amended complaint merely alleges that Hanover denied liability for the accident and
filed an insurance claim against the plaintiff, and that Hanover's conduct caused Plaintiff
to suffer ‘physical, mental, and emotional distress, pain, and suffering.’”). Further,
“under New York law, “public policy bars claims sounding in intentional infliction of
emotional distress against a governmental entity.” D’Angelo-Fenton v. Town of Carmel,
470 F. Supp. 2d 387, 399 (S.D.N.Y. 2007) (citing, inter alia, Wyllie v. Dist. Attorney of
County of Kings, 2 A.D.3d 714, 720, 770 N.Y.S.2d 110 (2d Dep’t 2003).
To the extent plaintiff refers to the issuance of allegedly-retaliatory tickets, as
basis for an intentional infliction of emotional distress claim, in addition to failing to
establish the defendants’ personal involvement due to his having set forth an improper
group pleading, to the extent the claims refer to the NY VTL § 402(4) citation, this claim
fails on the merits. The undersigned has concluded that plaintiff’s concession of driving
without valid registration and/or insurance demonstrate the ticket was not retaliatory, but
reasonable under the law. Similarly, to the extent plaintiff bases his intentional infliction
of emotional distress claim on the tow and seizure of his license plate, as plaintiff was
not legally permitted to drive the vehicle, it was neither extreme nor outrageous conduct
to tow the vehicle.
As to his claim for intentional infliction of emotional distress, with respect to
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(1) the allegedly retaliatory issuance of citations for violations of NY VTL 1163(b), and
(2) the continued impoundment of his vehicle, even if the undersigned disregards the
pleading and personal involvement defects, none of the alleged conduct is “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society.” Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (quoting Howell v. N.Y.
Post Co., 81 N.Y.2d 115, 122 (1993)). Plaintiff demonstrates experiencing “emotional
distress, humiliation, anxiety, and loss of sleep” from the alleged wrongful continued
impoundment and alleged retaliatory ticketing for § 1163(b) violations and expresses
inconvenience and frustration with its inconvenience, monetary consequences, and
alleged impact on his reputation, yet, even if the claims in the complaint are proven true,
such claims are nowhere near close to meeting the “rigorous, and difficult to satisfy,”
standard for IIED as alleged behavior is not sufficiently outrageous to impose liability.
See Howell v. New York Post Co., 81 N.Y.2d 115, 121-22 (1993). 	To the extent
plaintiff, in referring to “false statements” is referring to plaintiff’s allegations regarding
ADA Oastler and the “false” Wednesday court appearance, the undersigned concludes
that also would not rise to the “extreme and outrageous” conduct threshold.
Accordingly, in addition to dismissal for an improper group pleading and failure to plead
each defendants’ personal involvement, it is recommended that plaintiff’s IIED claims be
dismissed without opportunity to amend for failure to state a claim.
As to plaintiff’s state-law negligence claims, in addition to the group pleading and
lack of personal involvement defects above, plaintiff has failed to plead—let alone
plausibly allege—the duty defendants owed him, whether that duty was breached, the
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proximate result of the breach, and damages. See Solomon v. City of New York, 66
N.Y.2d 1026, 1027 (1985)). Thus, this failure to plead any element of the claim is fatal
to plaintiff’s negligence claim. See Ashcroft, 556 U.S. at 678. However, out of special
solicitude, it is recommended plaintiff be given leave to amend with respect to his
negligence claim should he be able to demonstrate each defendants’ personal
involvement, set forth the elements of the claim, and, as to the municipal defendant(s),
demonstrate proper compliance with a notice of claim or an exception thereto.
V. Conclusion
Wherefore, for the reasons set forth herein, it is hereby:
ORDERED, that plaintiff’s in forma pauperis application, Dkt. No. 4, is granted;
and it is
RECOMMENDED, that plaintiff’s First Amendment retaliation claim alleged
against Rich, Milot, Legge, John Doe 1-2, in their individual capacities, for issuance of
alleged retaliatory traffic citations for violations of NY § VTL 1163(d), Dkt. No. 1, be
STAYED during the pendency of his traffic court proceedings and any resulting appeals,
and that, plaintiff is to return to this Court following completion of the traffic proceedings
and any resultant appeals or expiration of time for such appeals, as set forth herein; and
that it is further
RECOMMENDED, that plaintiff’s First Amendment retaliation claim for issuance
of alleged retaliatory traffic tickets for violations of NY § VTL 1163(d) against individual
officers, Rich, Milot, Legge, and John Doe #1-2, in their official capacities, Dkt. No. 1, be
DISMISSED with prejudice; and it is further
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RECOMMENDED, that plaintiff’s Monell claims against the City of Syracuse
and/or Onondaga County in connection with his (1) First Amendment retaliation claim
for issuance of alleged retaliatory traffic tickets for violations of NY § VTL 1163(d), and
(2) Fourteenth Amendment due process claim with respect to the alleged failure to
provide sufficient notice regarding the procedure to seek release of his vehicle from
impoundment, return of his license plate, and to challenge the tow/impoundment fees,
Dkt. No. 1, be DISMISSED without prejudice and with opportunity to amend, but
that any review of the amended complaint be STAYED during the pendency of his traffic
court proceedings and any resulting appeals for the reasons detailed herein; and it is
further
RECOMMENDED, that, to the extent plaintiff seeks to bring a Fourteenth
Amendment procedural due process claim with respect to the continued impoundment
of his vehicle against the District Attorneys’ Office, Dkt. No. 1, such claim be dismissed
without prejudice and without opportunity to amend due to Eleventh Amendment
immunity,34
RECOMMENDED, that, to the extent plaintiff seeks to bring a Fourteenth
Amendment procedural due process claim with respect to the continued impoundment
of his vehicle and lack of notice of post-deprivation remedies against presently
unnamed individual district attorneys in their individual capacities, Dkt. No. 1, such claim
34 See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54 (1996) (noting that a claim barred by a state’s
sovereign immunity is properly dismissed under the Eleventh Amendment for a lack of subject matter
jurisdiction); see also Phillips v. Schenectady Child Support Unite, No. 1:24-CV-853 (BKS/PJE), 2025 WL
895035, at *7 (N.D.N.Y. Mar. 24, 2025), report and recommendation adopted sub nom. Phillips v.
Schenectady Cnty. Child Support Unit, No. 1:24-CV-853 (BKS/PJE), 2025 WL 1191320, at *7 n.15
(N.D.N.Y. Apr. 24, 2025), appeal dismissed (Sept. 18, 2025) (“A dismissal for lack of subject matter
jurisdiction must be without prejudice, because without jurisdiction, the district court lacks the power to
adjudicate the merits of the case.”) (citations omitted).
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be DISMISSED without prejudice and with opportunity to amend35 should he be
able to identify specific defendants’ personal involvement and demonstrate an exception
to prosecutorial immunity; and it is further
RECOMMENDED, that plaintiff’s Fourteenth Amendment due process claim with
respect to the alleged failure to provide notice regarding the procedure to seek release
of his vehicle from impoundment, return of his license plate, and to challenge the
tow/impoundment fees as alleged against “SPD” be DISMISSED with prejudice and
without opportunity to amend as against the Syracuse Police Department, except
that the dismissal be without prejudice to plaintiff seeking to name individual police
officers in their individual capacities with respect to the continued impoundment issue
only should he be able to demonstrate their personal involvement; and it is further
RECOMMENDED, that to the extent plaintiff seeks to bring a Fourteenth
Amendment procedural due process claim against the tow-yard defendants with respect
to the continued impoundment of his vehicle, Dkt. No. 1, it is recommended that this
claim be DISMISSED without prejudice and with leave to amend should he be able
to demonstrate that the tow-yard defendants were acting under color of state law; and it
is further
RECOMMENDED, that plaintiff’s request for injunctive relief in his complaint, Dkt.
No. 1 at 8, be DISMISSED without prejudice and without opportunity to amend for
lack of subject matter jurisdiction, and it is further
35 In the event the District Judge adopts the undersigned’s Report-Recommendation and Order and
plaintiff is permitted an opportunity to amend his complaint, plaintiff is advised that any amended pleading
cannot incorporate a prior pleading by reference. Any amended pleading supersedes and replaces a prior
pleading in its entirety. An amended pleading must establish this Court’s jurisdiction and state a claim for
relief against each named defendant for which leave to replead was granted according to Rules 8 and 10
of the Federal Rules of Civil Procedure.
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RECOMMENDED, that plaintiff’s (1) First Amendment Retaliation claim with
respect to the stop, the tow, seizure of his license plate, initial impoundment of his
vehicle, and issuance of the citation for NYS § VTL 402(4); (2) Fourth Amendment
unreasonable seizure claim; (3) First and Fourteenth Amendments Denial of Access to
the Courts claim; and (4) Fourteenth Amendment Procedural Due Process claim
relating to his FOIL concerns, Dkt. No. 1, be DISMISSED with prejudice, for failure to
state a claim, and without opportunity to amend because a better pleading would not
cure the defects; and it is further
RECOMMENDED, that plaintiff’s state law claims for (1) conversion, (2) trespass
to chattels, and (3) intentional infliction of emotional distress be DISMISSED with
prejudice and without opportunity to amend, and it is further
RECOMMENDED, that plaintiff’s state law negligence claim be DISMISSED
without prejudice and with leave to amend; and it is further
RECOMMENDED, that should plaintiff be permitted to amend his complaint as
specified herein, to avoid piecemeal litigation and in consideration of judicial economy,
review of any amended complaint be stayed during the pendency of plaintiff’s traffic
court proceeding and any resultant appeals or expiration of time to appeal;
RECOMMENDED, that plaintiff’s (1) Motion to Compel, Dkt. No. 9; (2) Motion for
In Camera Review, Privilege Log, and Preservation of Records, Dkt. No. 11; and
(3) Motion for Early Settlement Conference or Judicial Mediation, Dkt. No. 14, and
(4) Request for limited discovery regarding the identity of John Doe defendants, Dkt.
No. 15 be DENIED without prejudice as premature; and it is
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ORDERED, that, pursuant to the Court’s January 6, 2026, directive, Dkt. No. 16,
and as detailed in the Court’s December 17, 2025, text order, Dkt. No. 10, plaintiff’s
service deadline with respect to the Emergency Motion for TRO/PI and related
documents is reset to ten (10) days after the filing date of this Report-Recommendation
& Order, and regular service of the Motion to Stay, Dkt. No. 7; Emergency Motion for
TRO/PI, Dkt. No. 8; Complaint,36 Dkt. No. 1, and related text orders, Dkt. Nos. 10, 16, is
to be effectuated by the U.S. Marshal’s Service.
ORDERED, that the Clerk serve this Report-Recommendation & Order on
plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), 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),
72.37
Dated: January 20, 2026
36 Plaintiff is reminded that, although he is being directed to serve the complaint, this is not an indication
that the underlying case proceeds pursuant to the undersigned’s section 1915 review; rather, the service
of the complaint when seeking a temporary restraining order and/or preliminary injunction is a
requirement in the Local Rules. See N.D.N.Y. L.R. 65.1. Thus, this directive relates exclusively to
service for that purpose. The U.S. Marshal Service will file proof of service.
37 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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Albany, New York
Pay Semolino
Paul J. Evangelista U.S. Magistrate Judge
d
4
E
56