Maurer et al v. Zulauf et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________________________
Rebekah J. Maurer, et. al.,
Plaintiffs,
v. 	8:26-CV-359
(AMN/MJK)
Garrett D. Zulauf et. al.,
Defendants.
__________________________________________________________________
Rebekah J. Maurer, Plaintiff pro se
Lauren C. Maurer Plaintiff pro se
Mitchell J. Katz, U.S. Magistrate Judge
To The Honorable Anne M. Nardacci, U.S. District Judge:
ORDER AND REPORT-RECOMMENDATION
Plaintiffs commenced this action on March 6, 2026, by filing a
Complaint. (“Compl.,” Dkt. 1). Plaintiffs also filed motions for leave to
proceed in forma pauperis (“IFP”) and for the appointment of counsel.
(Dkts. 2, 3, 6). The Clerk sent the Complaint, IFP applications and
motion for the appointment of counsel to the Court for review.
I. 	BACKGROUND
The Complaint alleges that an officer stopped the car Plaintiffs
were in for an inspection “ignor[ing] [the] valid inspection.” (Dkt. 1, ¶ 4).
The officer “held” Plaintiffs “for about 30 minutes” and “demanded
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[Plaintiffs] both to show identification.” (Id.). There was a large police
presence and a false citation was later issued. (Id.). Plaintiffs were “told
[] to try to prove to the judge that [the] inspection was valid.” (Id.).
Plaintiffs were “[t]errified and upset” because of the false citation and
the “excessive police presence.” (Id.). Plaintiffs allege violations of their
Fourth and Fourteenth Amendment rights, and each seeks monetary
damages.
II. 	IFP APPLICATION
Plaintiffs declare in their IFP application that they are unable to
pay the filing fee. (Dkt. 2). After reviewing their applications, this Court
finds that Plaintiffs are financially eligible for IFP status.
III. 	STANDARD OF REVIEW
In addition to determining whether Plaintiffs meet the financial
criteria to proceed IFP, courts must consider the sufficiency of the
allegations set forth in the complaint. See 28 U.S.C. § 1915 (e)(2)(B)(i)-
(iii). Courts shall dismiss a case, at any time, if they determine that the
action is (i) frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief. Id.
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When determining whether an action is frivolous, a court must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see
also 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to
prevent abuses of court process and discourage the waste of judicial
resources. See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge,
505 F.2d 802, 804 (8th Cir. 1974). Courts have a duty to show liberality
toward pro se litigants and must use extreme caution when ordering
sua sponte dismissal of a pro se complaint before the adverse party has
been served and has had an opportunity to respond. See Fitzgerald v.
First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000).
But courts must still determine that a claim is not frivolous before
permitting a plaintiff to proceed. See Id. (finding that a district court
may dismiss a frivolous complaint sua sponte even when the plaintiff
has paid the filing fee).
To survive dismissal for failure to state a claim, a complaint must
contain sufficient factual matter, accepted as true, to state a claim that
is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,
550 U.S. at 555).
Additionally, Fed. R. Civ. P. 8(a)(2) requires pleadings to contain a
“short and plain statement of the claim showing that the pleader is
entitled to relief.” Although Rule 8 does not require detailed factual
allegations, it does “demand[] more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-
1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016)
(quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations
that “‘are so vague as to fail to give the defendants adequate notice of
the claims against them’ is subject to dismissal.” Id. (citing Sheehy v.
Brown, 335 F. App’x 102, 104 (2d Cir. 2009)).
IV. 	DISCUSSION
The Court denies Plaintiffs’ motion for the appointment of counsel
without prejudice and recommends the District Court:
A. dismiss the Complaint under Fed. R. Civ. P. 8 without
prejudice and with leave to amend;
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B. dismiss the Complaint under Fed. R. Civ. P. 10 without
prejudice and with leave to amend;
C. dismiss the Complaint without prejudice and with leave to
amend because the Complaint is silent as to when Plaintiffs’
purported claims accrued, not allowing the Court to
ascertain whether their claims are timely;
D. dismiss the Complaint against the St. Lawrence County
Sheriff’s Department with prejudice and without leave to
amend;
E. dismiss the Complaint without prejudice and with leave to
amend to the extent it alleges a claim against St. Lawrence
County;
F. dismiss the Complaint without prejudice and with leave to
amend to the extent it alleges a claim against Defendant
Zulauf, in his individual capacity; and
G. dismiss the Complaint with prejudice and without leave to
amend to the extent it alleges a claim against Defendant
Zulauf in his official capacity; and
H. allow Plaintiffs the opportunity to amend their Complaint.
A. 	Fed. R. Civ. P. 8
The Court recommends dismissal of the Complaint without
prejudice and with leave to amend under Fed. R. Civ. P. 8. Pleadings
must contain, among other things, three things: first “a short and plain
statement of the claim showing that the pleader is entitled to relief,”
second, “a short and plain statement of the grounds for the court’s
jurisdiction,” and third, “a demand for the relief sought[.]” Fed. R. Civ.
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P. 8(a)(1)-(3). “Although ‘no technical form is required,’ the Federal
Rules make clear that each allegation contained in the pleading ‘must
be simple, concise, and direct.’” Cole v. Smrtic, No. 1:24-CV-847, 2024
WL 4870495 (MAD/CFH), at *2 (N.D.N.Y. 2024) (quoting Fed. R. Civ. P.
8(d)). Allegations “so vague as to fail to give the defendants adequate
notice of the claims against them” are subject to dismissal. Sheehy v.
Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (summary order).
Here, the Court cannot glean from the Complaint as pleaded when
the traffic stop took place, whether Defendant Zulauf, or some other law
enforcement officer, issued Plaintiffs the citation they complain about,
and asked Plaintiffs for their identification and/or “held” them. (Dkt. 1,
¶ 4). As pleaded, the Complaint does not comply with Rule 8 and the
Court therefore recommends dismissal without prejudice and with leave
to amend.
B. 	Fed. R. Civ. P. 10
The Court recommends dismissal of the Complaint without
prejudice and with leave to amend under Fed. R. Civ. P. 10. “[T]he title
of the complaint must name all the parties.” Fed. R. Civ. P. 10(a). A
party not named in the caption of the complaint is not a party to the
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action. See Abbas v. U.S., No. 10-CV-0141, 2014 WL 3858398, at *2
(W.D.N.Y. Aug. 1, 2014) (holding that the failure to name the individual
defendants against whom the plaintiff intends to assert claims makes it
“infeasible for the Court to determine which of the individual officers
mentioned in the body of the complaint should be deemed to be
defendants to which claims”).
Here, the Complaint refers to “two sheriff vehicles, a NY State
Trooper, and a border patrol vehicle.” (Dkt. 1, pg. 3). With such scant
information, the Court is unable to discern whether Plaintiffs intended
to name as defendants the sheriffs who operated the “two sheriff
vehicles”, the NY State Trooper, and/or the officers who operated the
“border patrol vehicle.” (Dkt. 1). Thus, the Court recommends dismissal
of the Complaint without prejudice and with leave to amend.
C. 	Statute of Limitations
“In section 1983 actions, the applicable limitations period is found
in the general or residual [state] statute [of limitations] for personal
injury actions.” Dibenedetto v. Coley, No. 24-CV-1029, 2024 WL
4662979, at *1 (2d Cir. 2024) (quoting Ormiston v. Nelson, 117 F.3d 69,
71 (2d Cir. 1997) (quotation marks omitted). So “New York’s three-year
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statute of limitations for unspecified personal injury actions governs
section 1983 actions in New York.” Id. (citation omitted). However,
“federal law governs the determination of the accrual date (that is, the
date the statute of limitations begins to run) for purposes of the statute
of limitations in a section 1983 action.” Ormiston, 117 F.3d at 71.
As pleaded, the Complaint is silent as to when Plaintiffs’
purported claims accrued, not allowing the Court to ascertain whether
their claims are timely. And if untimely, whether equitable tolling
would be applicable to save Plaintiffs’ claims. The Court therefore
recommends dismissal without prejudice and with leave to amend. If the
District Court accepts this recommendation and permits Plaintiffs to
file an amended pleading, they should be directed to include the date on
which the underlying events took place.
D. 	The Complaint should be dismissed against the
St. Lawrence County Sheriff’s Department.
The Court recommends dismissal of the Complaint against
Defendant St. Lawrence County Sheriff’s Department with prejudice
and without leave to amend because they are not a proper party to this
action. “A department of a municipal entity is merely a subdivision of
the municipality and has no separate legal existence. Therefore,
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municipal departments . . . are not amenable to suit[.]” Coston v.
Conway, No. 19-CV-1552 (GLS/ATB), 2020 U.S. Dist.LEXIS 131785, at
*8 (N.D.N.Y. June 15, 2020) (quoting Hoisington v. County of Sullivan,
55 F. Supp. 2d 212, 214 (S.D.N.Y. 1999)). Accordingly, the Court
recommends dismissal of any claims asserted against Defendant St.
Lawrence County Sheriff’s Department.
The Court assumes that the Plaintiffs intended to name St.
Lawrence County as a defendant. With that assumption, the Complaint
still fails to state a claim against the County. “[A] municipality can be
held liable under Section 1983 if the deprivation of the plaintiff’s rights
under federal law is caused by a governmental custom, policy, or usage
of the municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d
Cir. 2012). A plaintiff establishes the existence of a policy or custom by
plausibly alleging: “(1) a formal policy officially endorsed by the
municipality; (2) actions taken by government officials responsible for
establishing the municipal policies that caused the particular
deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage
of which a supervising policy-maker must have been aware; or (4) a
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failure by policymakers to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with the
municipal employees.” Kurtz v. Hansell, No. 20-CV-3401, 2021 WL
1143619, at *18 (S.D.N.Y. Mar. 24, 2021) (quoting Brandon v. City of
New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)). Here, the
Complaint lacks any allegations plausibly suggesting that St. Lawrence
County has a policy, custom or practice that caused the purported
deprivation of Plaintiffs’ constitutional rights. The Court therefore
recommends dismissal without prejudice and with leave to amend.
E. 	The Complaint should be dismissed against
Defendant Zulauf in his official capacity.
The Court recommends dismissal of the Complaint against
Defendant Zulauf with prejudice and without leave to amend to the
extent it alleges claims against him in his official capacity. “It is settled
that a suit against a municipal officer in his official capacity is
functionally equivalent to a suit against the entity of which the officer
is an agent.” Ware v. City of Lackawanna, No. 08-CV-2009, 2009 WL
3464057, at *2 (W.D.N.Y. Oct. 21, 2009) (cleaned up). So official
capacity suits are treated as “another way of pleading an action against
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an entity of which an officer is an agent.’” Kentucky v. Graham, 473
U.S. 159, 165-66 (1985) (internal citation omitted). Therefore, “[a]s long
as the government entity receives notice and an opportunity to respond,
an official[ ]capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Ware, 2009 WL 3464057, at *2
(quoting Graham, 473 U.S. at 166). And for that reason, courts
routinely dismiss official capacity claims as redundant or duplicative of
claims against the municipality itself. See Tuff v. Vill. Of Yorkville
Police Dep’t, No. 16-CV-473 (TJM), 2017 WL 401241 (N.D.N.Y. Jan. 30,
2017).
Here, the Complaint alleges claims against Defendant Zulauf in
his official capacity and possibly St. Lawrence County. Therefore, the
Court recommends dismissing the claims against Defendant Zulauf, in
his official capacity, with prejudice and without leave to amend.
F. 	The Complaint should be dismissed against
Defendant Zulauf in his individual capacity.
The Court recommends dismissal of the Complaint without
prejudice and with leave to amend to the extent it seeks to impose
liability against Defendant Zulauf in his individual capacity because
there are no allegations that describe his personal involvement in the
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purported deprivation of Plaintiffs’ constitutional rights. To establish
individual liability under § 1983, “a plaintiff must show . . . that the
defendant caused the plaintiff to be deprived of a federal right.”
Raspardo v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014). Plaintiffs can
establish “personal involvement” by plausibly alleging that: (1) “[t]he
defendant participated directly in the alleged constitutional violation,
(2) the defendant, after being informed of the violation through a report
or appeal, failed to remedy the wrong, (3) the defendant created a policy
or custom under which unconstitutional practices occurred, or allowed
the continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the
wrongful acts, or (5) the defendant exhibited deliberate indifference . . .
by failing to act on information indicating that unconstitutional acts
were occurring.” Littlejohn v. City of New York, 795 F.3d 29, 314 (2d.
Cir. 2015).
Here, there are no allegations establishing Defendant Zulauf’s
personal involvement in the purported deprivation of Plaintiffs’
constitutional rights. So the Court recommends dismissal of the
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Complaint as to Defendant Zulauf, in his individual capacity, without
prejudice and with leave to amend.
G. 	Plaintiffs’ motion for counsel is denied without
prejudice.
There is no right to the appointment of counsel in civil matters.
See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Appointment of
counsel must be done carefully to preserve the “precious commodity” of
volunteer lawyers for those litigants who truly need a lawyer’s
assistance. See Cooper v. A. Sargenti, Inc., 877 F.2d 170, at 172-73 (2d.
Cir. 1989). Before the Court conducts a substantive analysis of
Plaintiffs’ request, Plaintiffs must make a showing that they have
sought representation and that their requests have been declined. See
Cooper, 877 F.2d at 173 (citing Jenkins v. Chemical Bank, 721 F.2d 876
(2d Cir. 1983). This showing is typically satisfied when a plaintiff
identifies the attorneys they have contacted and attaches to their
motion letters from attorneys declining their request for representation.
See Terpening v. McGinty, No. 1:21-CV-1215 (GTS/CFH), 2022 WL
2115265, at *1 (N.D.N.Y. June 13, 2022) (citations omitted); see also
N.D.N.Y. Pro Se Handbook, at 5.
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Courts cannot utilize a bright-line test in determining whether
counsel should be appointed on behalf of an indigent party. See
Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead,
several factors must be carefully considered by the Court in ruling upon
such a motion. As a threshold matter, the Court should ascertain
whether the indigent’s claims seem likely to be of substance. Even in a
case in which a litigant’s position seems likely of substance, the
appointment of counsel is made only in “exceptional circumstances.”
Cardona v. Comm’r of Soc. Sec., No. 3:20-CV-558, 2020 WL 8575100, at
*2 (D. Conn. Dec. 2, 2020) (quoting Kirkpatrick v. Astrue, Civ. No. 08-
0407, 2008 WL 879407, at *1 (W.D. La. Mar. 31, 2008)). When
considering whether such circumstances exist, the court should then
consider:
The indigent’s ability to investigate the crucial facts,
whether conflicting evidence implicating the need for cross
examination will be the major proof presented to the fact
finder, the indigent’s ability to present the case, the
complexity of the legal issues and any special reason in that
case why appointment of counsel would be more likely to
lead to a just determination.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994)
(quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). This is
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not to say that all, or indeed any, of these factors are controlling in a
particular case. Rather, each case must be decided on its own facts. See
Velasquez v. O’Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (citing
Hodge, 802 F.2d at 61).
Plaintiffs have not met their initial burden. Although Plaintiffs
allege that they contacted the Legal Aid Society (Canton, New York)
and Alexander Coffin & Associates, LLC, Plaintiffs do not include any
declination letters. (Dkt. 6, at ¶ 1). Even if Plaintiffs’ motion did include
the requisite declination letters, that does not end the Court’s inquiry.
See Local Rule 83.2(c). This action is in its earliest stages, and, as
discussed above, the Court recommends dismissal of the Complaint. For
that reason, Plaintiffs’ motion for the appointment of counsel is denied
without prejudice.
H. 	Plaintiffs should be given the opportunity to
Amend.
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
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when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
Here, there is no futility. The Court therefore recommends that
the Complaint be dismissed without prejudice and with leave to amend
except as to Plaintiffs’ claim against the St. Lawrence County Sheriff’s
Department and Defendant Zulauf in his official capacity which the
Court recommends be dismissed with prejudice and without leave to
amend.
If the District Court permits this action to proceed and Plaintiffs
amend their pleading, they are reminded of their obligations under Fed.
R. Civ. P. 8, which requires their amended complaint to contain a short
and plain statement showing that they are entitled to relief. Plaintiffs
are also reminded of their obligations under Fed. R. Civ. P. 10 to
specifically identify all potential defendants in the caption of the action.
While the amended pleading should contain sufficient facts to provide
Defendants with notice of the claims against them, it should not contain
material that is not germane to their claims.
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VI. 	CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Plaintiffs’ motions to proceed in forma pauperis
(Dkts. 2, 3) are GRANTED, and it is further
ORDERED, Plaintiffs’ motion for the appointment of counsel IS
DENIED WITHOUT PREJUDICE; and it is further
RECOMMENDED that the District Court:
A. DISMISS the Complaint under Fed. R. Civ. P. 8 WITHOUT
PREJUDICE AND WITH LEAVE TO AMEND;
B. DISMISS the Complaint under Fed. R. Civ. P. 10
WITHOUT PREJUDICE AND WITH LEAVE TO
AMEND;
C. DISMISS the Complaint WITHOUT PREJUDICE AND
WITH LEAVE TO AMEND because the Complaint is silent
as to when Plaintiffs’ claims accrued, not allowing the Court
to ascertain whether their claims are timely;
D. DISMISS the Complaint as to the St. Lawrence County
Sheriff’s Department WITH PREJUDICE AND
WITHOUT LEAVE TO AMEND;
E. DISMISS the Complaint WITHOUT PREJUDICE AND
WITH LEAVE TO AMEND to the extent it alleges a claim
against St. Lawrence County;
F. DISMISS the Complaint WITHOUT PREJUDICE AND
WITH LEAVE TO AMEND to the extent it alleges a claim
against Defendant Zulauf, in his individual capacity;
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G. DISMISS the Complaint WITH PREJUDICE AND
WITHOUT LEAVE TO AMEND to the extent it alleges a
claim against Defendant Zulauf in his official capacity; and
H. allow Plaintiffs the opportunity to amend their Complaint.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written objections to
the foregoing report. Such objections shall be filed with the Clerk of the
Court. 	FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v.
Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: April 30, 2026
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Houston v. Collerman, Not Reported in Fed. Supp. (2016)
2016 WL 6267968
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 6267968
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Eddie HOUSTON, Plaintiff,
v.
COLLERMAN, et. al., Defendants.
9:16-CV-1009 (BKS/ATB)
|
Signed 10/26/2016
Attorneys and Law Firms
EDDIE HOUSTON, 08-A-3122, Mid-State Correctional
Facility, P.O. Box 2500, Marcy, New York 13403, Plaintiff,
pro se.
AMENDED DECISION AND ORDER 1
1 On October 20, 2016, the Court issued a Decision
and Order upon initial review of plaintiff's
complaint. Dkt. No. 4. This Amended Decision
and Order is issued to correct clerical errors in the
Conclusion of the Order.
BRENDA K. SANNES, United States District Judge
I. Introduction
*1 The Clerk has sent to the Court for review a civil rights
action filed by pro se plaintiff Eddie Houston. Dkt. No. 1
(“Compl.”). Plaintiff has not paid the statutory filing fee for
this action and seeks leave to proceed in forma pauperis. Dkt.
No. 2 (“IFP Application”).
II. IFP Application
“28 U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged.” Cash v. Bernstein, No.
09-CV-1922, 2010 W L 5185047, at *1 (S.D.N.Y. Oct. 26,
2010). Upon review of plaintiff's IFP Application, the Court
finds that plaintiff has demonstrated sufficient economic
need and filed the inmate authorization form required in the
Northern District of New York. Plaintiff's IFP application
(Dkt. No. 2) is granted. 2
2 Section 1915(g) prohibits a prisoner from
proceeding in forma pauperis where, absent a
showing of “imminent danger of serious physical
injury,” a prisoner has filed three or more actions
or appeals that were subsequently dismissed as
frivolous, malicious, or failing to state a claim
upon which relief may be granted. See 28
U.S.C. § 1915(g). Based upon the Court's review
of plaintiff's litigation history on the Federal
Judiciary's Public Access to Court Electronic
Records (“PACER”) Service, it does not appear that
plaintiff has accumulated three strikes for purposes
of 28 U.S.C. § 1915(g).
III. Initial Screening
Having found that plaintiff meets the financial criteria for
commencing this action in forma pauperis, and because
plaintiff seeks relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in the complaint in light of 28
U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of
the United States Code directs that, when a plaintiff seeks to
proceed in forma pauperis, “the court shall dismiss the case at
any time if the court determines that – ... (B) the action ... (i)
is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). 3
3 To determine whether an action is frivolous, a court
must look to see whether the complaint “lacks an
arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
Similarly, under 28 U.S.C. § 1915A, a court must review
any “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity” and must “identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the
complaint ... is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or ... seeks monetary relief
from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d
Cir. 1999) (per curiam) (noting that Section 1915A applies to
all actions brought by prisoners against government officials
even when plaintiff paid the filing fee).
*2 Additionally, when reviewing a complaint, the Court may
also look to the Federal Rules of Civil Procedure. Rule 8 of
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Houston v. Collerman, Not Reported in Fed. Supp. (2016)
2016 WL 6267968
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
the Federal Rules of Civil Procedure provides that a pleading
which sets forth a claim for relief shall contain, inter alia, “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of
Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive
answer, prepare an adequate defense and determine whether
the doctrine of res judicata is applicable.” Hudson v. Artuz,
No. 95 CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov.
30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-
CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995)
(other citations omitted)).
A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. Thus, a pleading that contains only
allegations which “are so vague as to fail to give the
defendants adequate notice of the claims against them” is
subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102,
104 (2d Cir. 2009).
IV. Summary of the Complaint 4
4 Plaintiff annexed exhibits to the complaint. Dkt.
No. 1-1. To the extent that the exhibits are relevant
to the incidents described in the complaint, the
Court will consider the complaint as well as any
documents attached as exhibits. See Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991) (the complaint is deemed to include any
written instrument attached to it as an exhibit or
any statements or documents incorporated in it by
reference).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which establishes a cause of action for “ ‘the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws’ of the United States.” German v.
Fed. Home Loan Mortgage Corp., 885 F. Supp. 537, 573
(S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote
omitted); see also Myers v. Wollowitz, No. 6:95-CV-0272
(TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10,
1995) (stating that Ҥ 1983 is the vehicle by which individuals
may seek redress for alleged violations of their constitutional
rights.” (citation omitted)). “Section 1983 itself creates no
substantive rights, [but] ... only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). The Court
will construe the allegations in plaintiff's complaint with the
utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519,
521 (1972) (holding that a pro se litigant's complaint is to be
held “to less stringent standards than formal pleadings drafted
by lawyers.”).
*3 Plaintiff, an inmate currently being held at Mid-
State Correctional Facility (“Mid-State C.F.”), asserts claims
arising out of his confinement in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”). The incidents that form the foundation for
this complaint occurred while plaintiff was confined at
Elmira Correctional Facility (“Elmira C.F.”). See Compl.,
generally. On July 13, 2013, plaintiff filed a grievance
claiming that defendants Officer Copestick (“Copestick”) and
Officer Schieber (“Schieber”) harassed him, on more than
one occasion, about his medication. See id. at 6; see Dkt.
No. 1-1 at 3-5. On August 5, 2013, after an investigation
into the allegations, the Superintendent of Elmira C.F. denied
plaintiff's grievance. See Dkt. No. 1-1 at 5.
On September 30, 2013, plaintiff was on his way to the
masjid to participate in Ramadan when he was stopped by
Copestick and Schieber and directed to the wall for a pat-
frisk. See Compl. at 5. While plaintiff's hands were on the
wall, Schieber “violently kicked” his legs from underneath
him. See id. Schieber “stomped” on plaintiff's ankles while
Copestick attempted to choke plaintiff. See id. During the
assault, the officers yelled racial slurs. See id. Defendant
Sergeant Collerman (“Collerman”) watched the officers beat
plaintiff. See Compl. at 5. As a result of the attack, plaintiff's
eyeglasses were broken, his ankle was swollen, and he could
not walk. See id. at 5, 9.
At approximately 5:00 p.m., plaintiff received medical
treatment for complaints of pain in his right big toe and
swelling in his right foot. See Dkt. No. 1-1 at 19. Plaintiff
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received Motrin and was advised to follow with sick call
requests, if needed. See id. A “use of force/inmate injury”
report was compiled. 5 See id. At approximately 7:15 p.m.,
plaintiff, a diabetic, told a medical provider that he had not
received his daily “medication.” See id. The provider ordered
various medications to be delivered to plaintiff on a daily
basis. See id.
5 The Use of Force report was not annexed as an
exhibit to the complaint.
On October 1, 2013, plaintiff received a misbehavior report
charging him with assault on staff and with refusing a direct
order and search. 6 See Compl. at 5. On the same day, plaintiff
was placed in confinement in the Special Housing Unit
(“SHU”). See Dkt. No. 1-1 at 19. On October 3, 2013, plaintiff
attended a Hearing regarding the misbehavior report. 7 See
Dkt. No. 1-1 at 10. On November 3, 2013, plaintiff received
a copy of the hearing disposition dismissing all charges. See
Dkt. No. 1-1 at 11; Dkt. No. 1 at 5.
6 The name of the officer who served the
misbehavior report is not clearly legible on the
Hearing Disposition annexed as an exhibit. See
Dkt. No. 1-1 at 10. Plaintiff does not allege
that Copestick, Schieber, or Collerman delivered
the report. The disposition form indicates that
the charges were reported by Schieber. Id. The
misbehavior report was not annexed as an exhibit
to the complaint.
7 The officer who presided over the hearing was a
Captain at Elmira C.F. However, the name of the
hearing officer is not clearly legible. See Dkt. No.
1-1 at 10-11.
On November 3, 2013, plaintiff was released from the SHU.
See Compl. at 5. While plaintiff was in the SHU, he was
unable to participate in Ramadan, denied religious meals,
denied parole, and excluded from mental health programs.
See id.
Construed liberally, the complaint contains the following
claims: (1) Copestick and Schieber violated plaintiff's
Eighth Amendment rights with use of excessive force
(Fifth, Fifteenth, Twentieth, and Twenty-Second Causes of
Action); (2) Collerman failed to protect plaintiff from the
assault in violation of plaintiff's Eighth Amendment rights
(Fifteenth Cause of Action); (3) defendants were deliberately
indifferent to plaintiff's serious medical needs in violation
of the Eighth Amendment (Sixth, Seventh, and Fifteenth
Causes of Action); (4) Copestick and Schieber retaliated
against plaintiff in violation of plaintiff's First Amendment
rights (Twenty-First Cause of Action); (5) plaintiff's First
Amendment rights to religious freedom were violated (Fourth
Cause of Action); (6) plaintiff's Fourteenth Amendment
rights to due process and equal protection were violated
(First, Second, Third, Sixth, Sixteenth, and Eighteenth
Causes of Action); (7) defendants failed to investigate
plaintiff's complaints and follow grievance procedures (Tenth
and Thirteenth Causes of Action); (8) perjury claims
against officers who filed the misbehavior report (Eleventh
and Seventeenth Causes of Action); and (9) supervisory
claims against DOCCS (Eighth, Ninth, Twelfth, Fourteenth,
Nineteenth, Twenty-Third, Twenty-Fourth, Twenty-Fifth, and
Twenty Sixth Causes of Action). See Compl., generally.
Plaintiff seeks compensatory damages, injunctive relief,
and criminal charges against defendants (Eleventh and
Seventeenth Causes of Action). See Compl. at 9-13.
V. Analysis
A. Eleventh Amendment
*4 The Eleventh Amendment has long been construed as
barring a citizen from bringing a suit against his or her own
state in federal court, under the fundamental principle of
“sovereign immunity.” U.S. Const. amend. XI (“The Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.”); Hans
v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur
d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
Eleventh Amendment immunity is lost only if Congress
unequivocally abrogates states' immunity or a state expressly
consents to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d
Cir. 2009). It is well-settled that Congress did not abrogate
states' immunity through 42 U.S.C. § 1983, see Quern v.
Jordan, 440 U.S. 332, 343-45 (1979), and that New York State
has not waived its immunity from suit on the claims asserted
in plaintiff's complaint. See generally Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977);
Dawkins v. State of New York, No. 93-CV-1298 (RSP/GJD),
1996 W L 156764 at *2 (N.D.N.Y. 1996).
Here, insofar as plaintiff seeks an award of money damages
pursuant to Section 1983 against DOCCS, those claims are
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dismissed as plaintiff seeks relief from a defendant immune
from suit under section 1983. See LeGrand v. Evan, 702
F.2d 415, 417 (2d Cir. 1983); see Meehan v. Kenville, 555
Fed.Appx. 116 (2d Cir. 2014); see Simmons v. Gowanda
Corr. Facility, No. 13-CV-0647, 2013 WL 3340646, at *1
(W.D.N.Y. July 1, 2013) (“the New York State Department
of Corrections and [the named correctional facility] enjoy the
same Eleventh Amendment immunity from suit in federal
court as enjoyed by the state itself”) (quoting Posr. v. Court
Officer Shield No. 207, 180 F.3d 409, 411 (2d Cir. 1999)).
B. Eighth Amendment
1. Excessive Force Claims
The Eighth Amendment protects prisoners from “cruel and
unusual punishment” at the hands of prison officials. Wilson
v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429
U.S. 97, 104 (1976). The Eighth Amendment's prohibition
against cruel and unusual punishment encompasses the use
of excessive force against an inmate, who must prove
two components: (1) subjectively, that the defendant acted
wantonly and in bad faith, and (2) objectively, that the
defendant's actions violated “contemporary standards of
decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d
Cir. 1999) (internal quotations omitted) (citing Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). The key inquiry into a claim
of excessive force is “whether force was applied in a good-
faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing
Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); see also
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (“[t]he
Supreme Court has emphasized that the nature of the force
applied is the core judicial inquiry in excessive force cases
—not whether a certain quantum of injury was sustained.”).
“Accordingly, when considering the subjective element of the
governing Eighth Amendment test, a court must be mindful
that the absence of serious injury, though relevant, does not
necessarily negate a finding of wantonness.” Wynter v. Ramey,
No. 11-CV-0257 (DNH/DEP), 2013 W L 5465343, at *5
(N.D.N.Y. Sept. 30, 2013) (citations omitted).
Plaintiff has identified the time, location and individuals
involved in the alleged assault. Thus, the Court finds that
plaintiff's Eighth Amendment excessive force claims against
Copestick and Schieber survive sua sponte review and require
a response. In so ruling, the Court expresses no opinion as to
whether these claims can withstand a properly filed motion to
dismiss or for summary judgment.
2. Failure To Intervene
*5 The failure of corrections officers to employ reasonable
measures to protect an inmate from violence by others may
rise to the level of an Eighth Amendment violation. See Ayers
v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985). Moreover,
allegations that an officer failed to intervene and prevent
assaults are sufficient to state an Eighth Amendment failure
to protect claim. See Rogers v. Artus, No. 13-CV-21, 2013
WL 5175570, at *3 (W.D.N.Y. Sept. 11, 2013). To establish
liability under a failure to intervene theory, a plaintiff must
prove the use of excessive force by someone other than the
individual and that the defendant under consideration: 1)
possessed actual knowledge of the use by another of excessive
force; 2) had a realistic opportunity to intervene and prevent
the harm from occurring; and 3) nonetheless disregarded that
risk by intentionally refusing or failing to take reasonable
measures to end the use of excessive force. Curley v. Vill. of
Suffern, 268 F.3d 65, 72 (2d Cir. 2001). In order to succeed on
a claim of failure to protect, the inmate “must establish both
that a substantial risk to his safety actually existed and that the
offending [defendant] knew of and consciously disregarded
that risk.” See Walsh v. Goord, No. 07-CV-0246, 2007 WL
1572146, at *9 (W.D.N.Y. May 23, 2007) (quoting Farmer
v. Brennan, 511 U.S. 825, 837 (1970)). In addition, a failure-
to-protect claim requires a showing that prison officials acted
with “deliberate indifference” to the inmate's safety. Morales
v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir.
1988).
At this early stage of the proceeding, plaintiff has alleged
enough to require a response from Collerman to plaintiff's
claim that he failed to protect plaintiff from the assault by
Copestick and Schieber. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly
filed motion to dismiss or for summary judgment.
3. Deliberate Indifference to Serious Medical Needs
To state an Eighth Amendment claim for medical
indifference, a plaintiff must allege that the defendant
was deliberately indifferent to a serious medical need. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective
component of an Eighth Amendment deliberate indifference
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medical claim “requires that the alleged deprivation must
be sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration, or
extreme pain exists.” Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d
550, 553 (2d Cir. 1996)) (internal quotation marks omitted).
Under the subjective element, medical mistreatment rises to
the level of deliberate indifference only when it “involves
culpable recklessness, i.e., an act or a failure to act ... that
evinces ‘a conscious disregard of a substantial risk of serious
harm.’ ” Chance v. Armstrong, 143 F. 3d 698, 703 (2d
Cir. 1998) (quoting Hathaway, 99 F.3d at 553). “Deliberate
indifference requires more than negligence but less than
conduct undertaken for the very purpose of causing harm.”
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). To
assert a claim for deliberate indifference, an inmate must
allege that (1) a prison medical care provider was aware
of facts from which the inference could be drawn that the
inmate had a serious medical need; and (2) the medical
care provider actually drew that inference. Farmer, 511 U.S.
at 837; Chance, 143 F.3d at 702. The inmate must also
demonstrate that the provider consciously and intentionally
disregarded or ignored that serious medical need. Farmer,
511 U.S. at 835. An “inadvertent failure to provide adequate
medical care” does not constitute “deliberate indifference.”
Estelle, 429 U.S. at 105-06.
In this instance, even assuming plaintiff's injuries were
sufficiently serious, plaintiff must allege facts to demonstrate
that defendants acted with a sufficiently culpable state of
mind. See Hathaway, 99 F.3d at 553. Plaintiff claims that
his medical treatment was inadequate because his ankle was
not x-rayed until he was transferred to “his next facility,”
two months after the alleged incident. See Compl. at 10.
“When the basis of a prisoner's Eighth Amendment claim
is a temporary delay or interruption in the provision of
otherwise adequate medical treatment, it is appropriate to
focus on the challenged delay or interruption in treatment
rather than the prisoner's underlying medical condition alone
in analyzing whether the alleged deprivation is, in ‘objective
terms, sufficiently serious,’ to support an Eighth Amendment
claim.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003) (citing Chance, 143 F.3d at 702). “Although a delay
in providing necessary medical care may in some cases
constitute deliberate indifference, this Court has reserved
such a classification for cases in which, for example, officials
deliberately delayed care as a form of punishment, ignored
a ‘life-threatening and fast-degenerating’ condition for three
days; or delayed major surgery for over two years.” Demata
v. New York State Corr. Dep't of Health Servs., 198 F.3d 233
(2d Cir. 1999) (internal citations omitted).
*6 Here, the complaint is void of any facts establishing
that any defendant deliberately delayed plaintiff's medical
treatment. On the day of the alleged attack, plaintiff received
medical attention and prescription medication. See Dkt. No.
1-1 at 19. Plaintiff was treated on three other occasions
in October 2013 for foot pain before undergoing x-rays
on November 14, 2013. Dkt. No. 1-1 at 20-21. During
those visits, plaintiff received ice packs, Motrin, and refused
Ibuprofen. See id. Plaintiff does not allege that his condition
deteriorated during that time. See Rodriguez v. City of New
York, 802 F.Supp. 477, 482 (S.D.N.Y. 2011) (finding that the
plaintiff did not establish that his condition worsened as a
result of a delay between his request and receipt of medical
attention). Plaintiff does not allege that he sought and was
refused medical treatment during this two month time period.
See Kee v. Hasty, No. 01 Civ. 2123, 2004 W L 807071, at
*29 (S.D.N.Y. April 14, 2004) (holding that the plaintiff's
Eighth Amendment claims were overly conclusory because
the inmate failed to specify the dates on which he was denied
proper treatment, the nature of his needs on those dates, and
the nature of the treatment that was purportedly denied by
the defendants). The complaint lacks any facts to plausibly
suggest that any defendant knew of the severity of plaintiff's
injury and the risk posed by any delay in his treatment.
Plaintiff, a diabetic, also claims that he was unable to read
or see for over one year because his eye glasses were not
replaced until over a year after the assault. See Compl. at
10. The complaint does not contain any facts suggesting that
plaintiff made any complaints or sick call requests to any
defendant related to his eyeglasses. Plaintiff also failed to
assert facts suggesting that he made any defendant “aware
of the serious harm could occur” if he was not provided
with his glasses. See Myrie v. Calvo/Calvoba, 591 F.Supp.2d
620, 628 (S.D.N.Y. 2008) (holding that the complaint did not
suggest that any defendant was deliberately indifferent to the
plaintiff's vision problems).
Plaintiff's Eighth Amendment allegations are also subject
to dismissal based upon the failure to plead personal
involvement on the part of any defendant. 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)). Thus, “a Section 1983
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plaintiff must ‘allege a tangible connection between the acts
of the defendant and the injuries suffered.’ ” Austin v. Pappas,
No. 04-CV-7263, 2008 W L 857528, at *2 (S.D.N.Y. Mar.
31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986)) (other citation omitted). The complaint lacks any
facts suggesting that Copestick, Schieber, or Collerman were
involved in plaintiff's medical treatment or refused to allow
plaintiff to receive medical attention. In the absence of factual
allegations sufficient to plausibly suggest that any defendant
was personally involved, the complaint fails to state a
cognizable claim against him. Consequently, plaintiff's Eighth
Amendment claims for deliberate indifference to plaintiff's
medical needs are dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim.
C. First Amendment
1. Retaliation
Plaintiff alleges that Copestick and Schieber assaulted him in
retaliation for plaintiff's grievance against them. See Compl.
at 6,13. To state a claim of retaliation under the First
Amendment, a plaintiff must allege facts plausibly suggesting
the following: (1) the speech or conduct at issue was
“protected;” (2) the defendants took “adverse action” against
the plaintiff – namely, action that would deter a similarly
situated individual of ordinary firmness from exercising his
or her constitutional rights; and (3) there was a causal
connection between the protected speech and the adverse
action – in other words, that the protected conduct was a
“substantial or motivating factor” in the defendant’s decision
to take action against the plaintiff. Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (citing
Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). The
Second Circuit has stated that courts must approach prisoner
retaliation claims “with skepticism and particular care,” since
“virtually any adverse action taken against a prisoner by
a prison official – even those otherwise not rising to the
level of a constitutional violation – can be characterized as a
constitutionally proscribed retaliatory act.” Dawes, 239 F.3d
at 491, overruled on other grounds by Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002) (citing Flaherty v. Coughlin, 713
F.2d 10, 13 (2d Cir. 1983)); Franco v. Kelly, 854 F.2d 584,
590 (2d Cir. 1988).
*7 It is well-settled that filing a grievance is constitutionally
protected conduct. Johnson v. Eggersdorf, 8 Fed.Appx. 140,
144 (2d Cir. 2001); Graham v. R.J. Henderson, 89 F.3d
75, 80 (2d Cir. 1996). A plaintiff can establish a causal
connection that suggests retaliatory intent by showing that
his protected activity was close in time to the complained-
of adverse action. Espinal v. Goord, 558 F.3d 119, 129 (2d
Cir. 2001) (citations omitted). While there is no “bright line”
defining the limits of the temporal relationship, courts in the
Circuit have held that an adverse action taken within three
months after a protected activity can reasonably be perceived
as retaliatory. See Gorman-Bakos v. Cornell Coop. Extn. of
Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001); see also
Ashok v. Barnhart, No. 01-CV-1311, 289 F.Supp.2d 305, 314
(E.D.N.Y. Oct. 30, 2003) (the interval between a protected
activity and an adverse action that results in a finding of
retaliation is generally no more than several months).
At this juncture, the Court finds that plaintiff's retaliation
claims against Copestick and Schieber survive sua sponte
review and require a response. In so ruling, the Court
expresses no opinion as to whether these claims can withstand
a properly filed motion to dismiss or for summary judgment.
2. Religious Claims
Plaintiff alleges that the defendants violated his religious
rights because he was unable to participate in Ramadan and
denied his religious meals as a direct result of the false
misbehavior report. Dkt. No. 1 at 5-6.
Prisoners have long been understood to retain some measure
of the constitutional protection afforded by the First
Amendment's Free Exercise Clause. See Ford v. McGinnis,
352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417
U.S. 817, 822 (1974)). “Balanced against the constitutional
protections afforded prison inmates, including the right to
free exercise of religion, [however,] are the interests of
prison officials charged with complex duties arising from
administration of the penal system.” Id. (citing Benjamin
v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)). To state
a First Amendment Free Exercise claim, a plaintiff must
allege that (1) the practice asserted is religious in the person's
scheme of beliefs, and that the belief is sincerely held;
(2) the challenged practice of the prison officials infringes
upon the religious belief; and (3) the challenged practice
of the prison officials furthers some legitimate penological
objective. Farid v. Smith, 850 F.2d 917, 926 (2d Cir.
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1988) (citations omitted). A prisoner “must show at the
threshold that the disputed conduct substantially burdens his
sincerely held religious beliefs.” Salahuddin v. Goord, 467
F.3d 263, 274–75 (2d Cir. 2006) (citing Ford, 352 F.3d
at 591). 8 A religious belief is “sincerely held” when the
plaintiff subjectively, sincerely holds a particular belief that
is religious in nature. Ford, 352 F.3d at 590. A prisoner's
sincerely held religious belief is “substantially burdened”
where “the state puts substantial pressure on an adherent
to modify his behavior and to violate his beliefs.” Jolly
v. Coughlin, 76 F.3d 468, 476–77 (2d Cir. 1996). Once
a plaintiff establishes that a sincerely held religious belief
has been substantially burdened, “[t]he defendants then bear
the relatively limited burden of identifying the legitimate
penological interests that justify the impinging conduct;
the burden remains with the prisoner to show that these
articulated concerns were irrational.” Salahuddin, 467 F.3d at
275 (quoting Ford, 352 F.3d at 595) (punctuation omitted).
8 The Second Circuit has yet to decide whether the
“substantial burden” test survived the Supreme
Court's decision in Emp't Div. v. Smith, 494 U.S
872, 887 (1990), in which the Court suggested
that application of the test “puts courts in ‘the
unacceptable business of evaluating the relative
merits of differing religious claims.’ ” Ford, 352
F.3d at 592 (quoting Emp't Div., 494 U.S. at
887); see also Williams v. Does, 639 Fed.Appx.
55, 56 (2d Cir. May 6, 2016) (“We have not yet
decided whether a prisoner asserting a free-exercise
claim must, as a threshold requirement, show
that the disputed conduct substantially burdened
his sincerely held religious beliefs.”); Holland
v. Goord, 758 F.3d 215, 220-21 (2d Cir. 2014)
(declining to decide whether a prisoner must show,
as a threshold matter, that the defendants' conduct
substantially burdened his sincerely held religious
beliefs in connection with a First Amendment free
exercise claim). In the absence of any controlling
precedent to the contrary, I have applied the
substantial-burden test in this matter.
*8 In this case, plaintiff has not alleged who issued the
misbehavior report and it is not attached to the complaint.
An inmate “has no general constitutional right to be free
from being falsely accused in a misbehavior report.” Boddie
v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997). While a
false misbehavior report may give rise to a claim under
§ 1983 “when done in retaliation for the exercise of a
constitutional right,” Willey v. Kirkpatrick, 801 F.3d 51, 63
(2d Cir. 2015), here there is no such allegation. While the
deprivation of religious meals in SHU may be sufficient to
state a claim, see Williams v. Does, 639 Fed.Appx. 55, 56
(2d Cir. 2016); Skates v. Shusda, No. 9:14-CV-1092 (TJM/
DEP), 2016 WL 3882530, at **4-5 (N.D.N.Y. May 31,
2016), here there is no indication that the defendants had
any personal involvement in that conduct. The allegations,
without more, fail to plausibly suggest that any defendant
burdened plaintiff's right to freely practice his religion. Thus,
plaintiff's First Amendment claims against are dismissed
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
D. Fourteenth Amendment
1. Equal Protection/Discrimination
Plaintiff claims that the September 30, 2013 assault was
racially motivated. See Compl. at 6, 12. “When verbal
harassment and simultaneous physical abuse ... are considered
together, [courts] have little doubt concluding that plaintiff's
allegations [are] sufficient to state a § 1983 claim for
discrimination on the basis of race. Cole v. Fischer, 379
Fed.Appx. 40, 43 (2d Cir. 2010). “Under the Fourteenth
Amendment's Equal Protection clause, a plaintiff may be able
to recover for a physical assault that would not meet the
objective threshold for Eighth Amendment excessive force
claims, if the defendant's conduct was motivated by racial
or religious discrimination.” Bhuiyan v. Wright, No. 9:06-
CV-409 ATB, 2011 WL 1870235, at *9 (N.D.N.Y. May 13,
2011) (citation omitted).
At this juncture, plaintiff has sufficiently plead a Fourteenth
Amendment equal protection claim to warrant a response
from Copestick and Schieber. In so ruling, the Court expresses
no opinion as to whether these claims can withstand a
properly filed motion to dismiss or for summary judgment.
2. Due Process
Plaintiff claims that defendants violated his due process
rights when they failed to replace plaintiff's eyeglasses.
See Compl. at 10. Plaintiff also asserts that his Fourteenth
Amendment rights were violated because he was improperly
confined to the SHU without a hearing as a result of a
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false misbehavior report. See id. at 10. During his SHU
confinement, was allegedly unable to participate in Ramadan,
denied his religious meals, denied parole, and excluded from
mental health programs. See id.
a. Property Claim
The Supreme Court has held that the negligent or intentional
deprivation of prisoner's property may not be the basis for
constitutional claims if sufficient post deprivation remedies
are available to address the claim. Hudson v. Palmer, 468 U.S.
517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541
(1981)); Davis v. New York, 311 Fed.Appx. 397, 400 (2d Cir.
2009) (An alleged loss of property, “whether intentional or
negligent – will not support a due process claim redressable
under § 1983 if ‘adequate state post-deprivation remedies
are available.’ ”) (quoting Hudson, 468 U.S. 533). “New
York in fact affords an adequate post-deprivation remedy in
the form of, inter alia, a Court of Claims action.” Jackson
v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Because plaintiff
has access to adequate state law remedies, he has not been
deprived of property without due process of law and therefore
cannot state a claim for relief pursuant to Section 1983. See
Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per
curiam); see also Aziz Zarif Shabazz v. Pico, 994 F.Supp. 360,
473-74 (S.D.N.Y. 1998) (dismissing the plaintiff's claim that
defendants destroyed his eyeglasses in violation of his due
process rights). Thus, plaintiff's due process claims related to
his eyeglasses are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.
b. SHU Confinement
*9 To establish a due process claim, plaintiff must establish:
“(1) that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of
insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d
Cir. 2001) (citation and internal quotation marks omitted).
In this case plaintiff alleges that the false misbehavior report
resulted in a SHU sentence. 9
9 The complaint contains conflicting factual
allegations related to the length of plaintiff's SHU
confinement. Plaintiff claims that after “one month
of being housed in SHU,” he was released. See
Compl. at 5. In the Third Cause of Action, plaintiff
claims that he served “over 60 days in SHU.” See
id. at 9.
A prisoner “has a liberty interest that is implicated by
SHU confinement if it ‘imposes [an] atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life.’ ” J.S. v. T'Kach, 714 F.3d 99, 106 (2d
Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484,
(1995)); see also Palmer v. Richards, 364 F.3d 60, 64
(2d Cir. 2004). In making this determination courts are to
consider, “among other things, the duration and conditions
of confinement.” J.S., 714 F.3d at 106; Davis v. Barrett, 576
F.3d 129, 133 (2d Cir. 2009). The conditions of confinement
are to be considered “in comparison to the hardships endured
by prisoners in general population, as well as prisoners in
administrative and protective confinement, assuming such
confinements are imposed in the ordinary course of prison
administration.” Davis, 576 F.3d at 134; Palmer, 364 F.3d at
66 n.4.
Although the Second Circuit has “explicitly avoided” creating
“a bright line rule that a certain period of SHU confinement
automatically fails to implicate due process rights,” the Court
has established guidelines. Palmer, 364 F.3d at 65. W here the
plaintiff is confined for “an intermediate duration –between
101 and 305 days – ‘development of a detailed record’ of
the conditions of the confinement relative to ordinary prison
conditions is required.’ ” Id. (quoting Colon v. Howard,
215 F.3d 227, 234 (2d Cir. 2000)). While confinements for
less than 101 days “under normal SHU conditions may not
implicate a prisoner's liberty interest,” such confinements
“could constitute atypical and significant hardships if the
conditions were more severe than the normal SHU conditions
of Sealy or a more fully developed record showed that even
relatively brief confinements under normal SHU conditions
were, in fact, atypical.” Palmer, 364 F.3d at 65; see Davis,
576 F.3d at 133. 10
10 The Second Circuit has noted that “[i]n the absence
of a detailed factual record, we have affirmed
dismissal of due process claims only in cases where
the period of time spent in SHU was exceedingly
short –less than the 30 days that the Sandin plaintiff
spent in SHU—and there was no indication that
the plaintiff endured unusual SHU conditions.”
Palmer, 364 F.3d at 65-66; see Davis, 576 F.3d
at 133. Absent allegations in the complaint that
the conditions of confinement were in some way
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atypical, however, many courts in this Circuit have
granted motions to dismiss claims by plaintiffs
with confinement exceeding thirty days when the
plaintiffs failed to allege that the conditions of
confinement were in some way atypical. See, e.g.,
Acevedo v. Fischer, No. 12-CV-6866, 2014 WL
5015470 at *15 (S.D.N.Y. Sept. 29, 2014) (citing
cases involving confinements of between forty and
fifty days which were dismissed for failure to allege
a protected liberty interest because there were no
allegations of unusual confinement).
*10 In this case, the duration of the confinement, 30 to
60 days, “was not long enough to constitute an atypical and
significant deprivation by itself,” and the Court therefore must
“look to the conditions of confinement.” Palmer, 364 F.3d at
66; see also Davis, 576 F.3d at 133. Plaintiff claims that while
he was confined in the SHU, he was unable to participate
in Ramadan, denied his religious meals, denied parole, and
excluded from his mental health program. See Compl. at 5,
10; Dkt. No. 1-1 at 1.
It is well established that prisoners do not have a
constitutional right to parole. Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “Where a state
has created a statutory scheme for parole, the Due Process
Clause protects prisoners insofar as they ‘have a legitimate
expectancy of release that is grounded in the state's statutory
scheme.’ ” Barna v. Travis, 239 F.3d 169, 170–72 (2d Cir.
2001) (per curiam) (citing Greenholtz, 442 U.S. at 11–13).
“New York's parole scheme is not one that creates in any
prisoner a legitimate expectancy of release.” Barna, 239 F.3d
at 171. Plaintiff has also failed to plead that his inability to
participate in mental health programs impacted a protected
liberty interest. See Nieves v. Prack, No. 6:15-CV-6101, 2016
W L 1165820, at *4 (W.D.N.Y. March 24, 2016) (“[Plaintiff's]
claim that his inability ... to participate in various educational,
vocational, rehabilitative or self-help programs might have
hindered his ability to receive an early parole or release
is ... speculative and fails to allege interference with a
protected liberty interest.”) (citations omitted). Here, the
complaint lacks facts establishing when, how many times,
and who deprived plaintiff of the right to attend his mental
health program. With respect to plaintiff's religious claims,
courts have found that the deprivation of communal religious
services does not constitute an atypical and significant
hardship. See Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998)
(finding that eighteen days in administrative segregation,
including loss of exercise and access to religious services, did
not constitute atypical and significant hardship); Holland v.
Goord, No. 05-CV-6295, 2006 WL 1983382, at *7 (W.D.N.Y.
July 13, 2006) (holding the inability to attend Muslim services
and celebrate the end of Ramadan while confined in the SHU
for seventy-seven days is not an atypical hardship).
Even assuming that plaintiff had pled facts sufficient to show
that his confinement imposed an atypical and significant
hardship, however, and therefore pled the existence of a valid
liberty interest, the complaint fails to state a claim based upon
the Fourteenth Amendment and due process. It is well settled
that “a prison inmate has no general constitutional right to
be free from being falsely accused in a misbehavior report.”
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing
Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). In
this case, a hearing regarding the charges was held within two
days of plaintiff's receipt of the misbehavior report. Plaintiff
does not allege that he was denied any procedural due process
during that hearing. Moreover, the complaint lacks facts
suggesting that any named defendant issued the misbehavior
report or presided over the disciplinary hearings. Based upon
the aforementioned, plaintiff's Fourteenth Amendment claims
are dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state
a claim upon which relief may be granted. See Livingston v.
Kelly, 561 F.Supp.2d 329, 332 (W.D.N.Y. 2008) (dismissing
plaintiff's false-report claims because the plaintiff failed to
allege that the disciplinary hearings on the reports did not
meet constitutional due process standards).
E. Failure to Respond to Grievances and Failure to
Investigate
*11 Plaintiff also claims that his constitutional rights were
violated because the facility grievance program is “never
followed.” See Compl. at 11. There is no constitutional
right of access to the established inmate grievance program.
Davis v. Buffardi, No. 9:01-CV-0285 (PAM/GJD), 2005 WL
1174088, at *3 (N.D.N.Y. May 4, 2005) (“[p]articipation
in an inmate grievance process is not a constitutionally
protected right”); Shell v. Brzezniak, 365 F.Supp.2d 362,
369-70 (W.D.N.Y. 2005) (“[i]nmate grievance programs
created by state law are not required by the Constitution and
consequently allegations that prison officials violated those
procedures does not give rise to a cognizable § 1983 claim”);
Cancel v. Goord, No. 00. Civ. 2042, 2001 WL 303713, at *3
(S.D.N.Y. Mar. 29, 2001) (“inmate grievance procedures are
not required by the Constitution and therefore a violation of
such procedures does not give rise to a claim under § 1983”);
Mimms v. Carr, No. 09-CV-5740, 2011 W L 2360059, at
*10 (E.D.N.Y. June 9, 2011) (“It is well-established that
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prison grievance procedures do not create a due-process-
protected liberty interest.”) (citing cases). Simply stated, there
is no underlying constitutional obligation to afford an inmate
meaningful access to the internal grievance procedure, or to
investigate and properly determine any such grievance.
To the extent that plaintiff attempts to assert a separate
constitutional claim based upon the Inspector General's
failure to investigate, the law is also clear that inmates do
not enjoy a constitutional right to an investigation of any
kind by government officials. Bernstein v. New York, 591
F.Supp.2d 448, 460 (S.D.N.Y. 2008) (collecting cases); Torres
v. Mazzuca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y. 2003)
(Prisoners do not have a due process right to a thorough
investigation of grievances.); DeShaney v. Winnebego Soc.
Servs., 489 U.S. 189, 196 (1989) (The Due Process Clause
confers no right to governmental aid, even where that aid may
be necessary to secure life, liberty, or property interests of
which the government itself may not deprive the individual);
Pine v. Seally, No. 9:09-CV-1198, 2011 W L 856426, at *9
(N.D.N.Y. Feb. 4, 2011) (“the law is ... clear that inmates do
not enjoy a constitutional right to an investigation of any kind
by government officials”) (citing Bernstein, 591 F.Supp.2d at
460).
In this regard, plaintiff's claims do not involve a constitutional
violation and are dismissed pursuant to 28 U.S.C. § 1915(e)
(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted.
F. Cause of Action for Criminal Charges/Perjury
“New York does not recognize a common law cause of action
for [...] perjury.” Harris v. Summers, No. 5:14-CV-0013
(LEK/DEP), 2014 W L 1340032, at *5 (N.D.N.Y. Apr. 3,
2014) (citing Carvel v. Ross, No. 12-CV-0722, 2011 W L
856283, at *12 (S.D.N.Y. Feb. 16, 2011) (dismissing the
plaintiff's perjury claim because “there [is] no private right
of action” for perjury)). Moreover, plaintiff's claim is not
actionable because it is well-settled that a private citizen
does not have a constitutional right to bring a criminal
complaint against another individual. Harper v. New York
Child Welfare Comm'rs, No. 3:12-CV-0646 (NAM/DEP),
2012 WL 3115975, at *4 (N.D.N.Y. May 14, 2012) (citing
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).
Consequently, plaintiff's request to charge defendants with
“perjury” is dismissed for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
G. Injunctive Relief Against DOCCS
Plaintiff demands injunctive relief directing DOCCS to
require “each officer” to wear body cameras to prevent future
assaults and other related injunctive relief. See Compl. at
10-12. Plaintiff is presently confined at Mid-State C.F. and
therefore, plaintiff's request for injunctive relief involving
changes to the operation of security at Elmira C.F., is
dismissed as moot. See Edwards v. Horn, No. 10 Civ.
6194, 2012 WL 760172, at *23 (S.D.N.Y. March 8, 2012)
(dismissing the plaintiff's claim for injunctive relief because
the plaintiff had been released from prison).
*12 Even assuming plaintiff's request is broader and
intended to encompass all DOCCS facilities, the request is
nonetheless improper and subject to dismissal. The PLRA
provides “[p]rospective relief in any civil action with respect
to prison conditions shall extend no further than necessary
to correct the violation of the Federal right of the particular
plaintiff.” 18 U.S.C. § 3626(a)(1)(A). “[A] proposed order
directing the installation of securities cameras – is beyond the
narrow scope permitted by the PLRA.” Barrington v. New
York, 806 F.Supp.2d 730, 750 (S.D.N.Y. 2011) (dismissing
the plaintiff's request for injunctive relief seeking an order
directing Green Haven to install security cameras as overly
broad and unnecessary to correct the alleged past violations
of his rights). Accordingly, plaintiff's request for injunctive
relief is dismissed.
VI. Conclusion
ORDERED that plaintiff's in forma pauperis application
(Dkt. No. 2) is GRANTED; 11 and it is further
11 Plaintiff should note that, although the Court
has granted his application to proceed in forma
pauperis, he will still be required to pay fees that
he may incur in this action, including copying and/
or witness fees.
ORDERED that the Clerk provide the Superintendent of the
facility, designated by plaintiff as his current location, with a
copy of plaintiff's authorization form, and notify the official
that this action has been filed and that plaintiff is required to
pay the entire statutory filing fee of $350.00 pursuant to 28
U.S.C. § 1915; and it is further
ORDERED that the Clerk of the Court provide a copy of
plaintiff's inmate authorization form to the Financial Deputy
of the Clerk's Office; and it is further
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ORDERED that the following claims are DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted: (1) plaintiff's § 1983 claims for
monetary damages against DOCCS; (2) constitutional claims
based upon the failure to adhere to the grievance policy and
investigate; and (3) plaintiff's claims related to perjury and
filing criminal charges against defendants; and it is further
ORDERED that the following claims are DISMISSED
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted: (1) Eighth Amendment claims against
defendants for deliberate indifference to plaintiff's serious
medical needs; (2) First Amendment freedom of religion
claims; (3) Fourteenth Amendment due process claims; and
(4) claims for injunctive relief against DOCCS 12 ; and it is
further
12 If plaintiff wishes to pursue any claim dismissed
without prejudice, he is advised to that, if accepted
for filing, any amended complaint will entirely
replace the original complaint and incorporation of
prior claims is not permitted.
ORDERED that DOCCS is DISMISSED as a defendant
herein; and it is further
ORDERED that the following claims survive the Court's
sua sponte review under 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) and require a response: (1) the Eighth
Amendment use of excessive force claims against defendants
Copestick and Schieber; (2) the Eighth Amendment failure-
to-intervene claim against defendant Collerman; (3) the First
Amendment retaliation claims against defendants Copestick
and Schieber; and (3) the Fourteenth Amendment equal
protection claims against Copestick and Schieber; and it is
further
ORDERED, that the Clerk shall issue summons and forward
them, along with copies of the Complaint, to the United States
Marshal for service upon the remaining defendants. The Clerk
shall forward a copy of the Summons and Complaint to the
Office of the New York State Attorney General, together with
a copy of this Decision and Order; and it is further
*13 ORDERED, that a response to the complaint be filed
by the remaining defendants, or their counsel, as provided for
in the Federal Rules of Civil Procedure;
ORDERED, that all pleadings, motions and other documents
relating to this action must bear the case number assigned to
this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor,
Federal Building, 100 S. Clinton St., Syracuse, New York
13261-7367. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was served on all
opposing parties or their counsel. Any document received
by the Clerk or the Court which does not include a proper
certificate of service will be stricken from the docket.
Plaintiff must comply with any requests by the Clerk’s Office
for any documents that are necessary to maintain this action.
All parties must comply with Local Rule 7.1 of the Northern
District of New York in filing motions. Plaintiff is also
required to promptly notify the Clerk’s Office and all
parties or their counsel, in writing, of any change in his
address; their failure to do so will result in the dismissal
of his action; and it is further
ORDERED, in accordance with Lebron v. Sanders, 557 F.3d
76 (2d Cir. 2009), the Clerk of the Court is directed to
provide plaintiff with copies of opinions from Westlaw and
the Federal Appendix cited in this Decision and Order; and
it is further
ORDERED that the Clerk of the Court shall serve a copy of
this Decision and Order on plaintiff in accordance with the
Local Rules.
Dated: October 26, 2016.
All Citations
Not Reported in Fed. Supp., 2016 WL 6267968
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Houston v. Collerman
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Filings (1)
Title PDF Court Date Type
1. Docket 9:16-CV-01009
Houston v. Collman et al
— N.D.N.Y. Aug. 15, 2016 Docket
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Houston v. Collerman
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History
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Houston v. Collerman
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4870495
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, et al. Defendants.
No. 1:24-CV-00847 (MAD/CFH)
|
Signed November 21, 2024
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”)
commenced this action (No. 1:24-CV-00623) on May 6,
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court
construes to be a supplement to the complaint. 1 See Dkt. No.
7. In lieu of paying this Court's filing fees, he submitted an
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Thus, the Court proceeds to its review of the
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also
submitted for the Court's review a Pro Se Application for
Permission to File Electronically and a Motion to Appoint
Counsel. See Dkt. Nos. 4, 5.
1 The submission includes a letter addressed to
District Judge D'Agostino, titled, “Requirements
for Cases Removed From State Court,” Dkt. No.
7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with
the caption of Cole v. County of Montgomery,
dated December 7, 2022. See Dkt. No. 7. The
undersigned has reviewed this submission in
connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
Cir. 2004).
2 Plaintiff is advised that, although he has been
granted IFP status, he is still required to pay all fees
and costs he may incur in this action, including,
but not limited to, copying fees, transcript fees, and
witness fees.
II. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
(per curiam) (internal quotation marks omitted); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro se
litigant's submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro
se litigant's allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law[.]”
*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
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“The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure [(‘Fed.
R. Civ. P.’)].” 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)).
Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought...
FED. R. CIV. P. 8(a). Although “[n]o technical form is
required,” the Federal Rules make clear that each allegation
contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d). “The purpose ... is to give fair notice
of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
54 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of a defendant's duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
*3 This Court also has an overarching obligation to
determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of the
complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) 3
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”).
3 Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
plaintiff.
B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
Against Rights & Title U.S.C. 18 Section 242 Deprivation
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
cover sheet further provides that his cause of action involves,
“Violation of Due process, Speedy Trial Rights, Ineffective
Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
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See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local
officials,” plaintiff responds, “Due Process, 30.30 Speedy
Trial Violation, Ineffective Assistance of counsel.” 4 Id. In
response to a question asking him to explain “how each
defendant acted under color of state or local law,” plaintiff
states “Each judge deliberately denied me due process, and
refused to look into the paperwork to see that i was improperly
denied my speedy trial rights. It was a tean [sic] effort.
The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned
actions were done and upheld even after I showed federal law
with supportive case law as a pro se litigant.” Id.
4 Although plaintiff generally references ineffective
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would
not be considered ineffective assistance of counsel
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney.
Plaintiff provides that his “case is still on appeakl [sic] in
Appellate Court Third Department. I feel they are guilty,
or part of what I call a scandal. I went to them from the
very start with a complaint to the grievance committee,
where they denied any wrongdoing. It must be ok to violate
Constitutional rights there. This is from March 2019 to
present” Id.
In response to a question that asks plaintiff to state the facts
underlying his claims, plaintiff states, “Please see attached
Article 78 that is attached. It was dismissed being in the wrong
court, but is on point.” Id. at 4. Plaintiff did not provide the
Court with any such attachment and has not submitted any
Article 78 materials. See Compl., Dkt. No. 7.
In response to the form complaint's question asking about
any injuries suffered as a result of the conduct he complains
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by
arguments not legally allowed to give. Loss of income,
inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial
traumam [sic] due to my legal battles.” Id. Indicating the relief
sought, plaintiff states
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel,
malice, Brady Violation, Petitioner
claims deliberate misconduct and
malice in Montgomery County Court,
the Saratoga Disrict Attorney's Office,
and the Supreme Court Appellate
Division Third department. ** This is
subject to change if an attorney agrees
to represent.
Compl. at 5. Although he typed his name, plaintiff does not
sign the complaint where a signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme
Court. See id. He states that he seeks or sought the removal
because he was told he was “not guarantee counsel” at the
state, but that “[i]n Federal Court, there is that option, pending
qualification, and I am told, if a lawyer agrees to take it, then
I really have something. I am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel × 4. That is why I am
pro se. I had to protect myself when appointed counsel did
not. It also went through a couple judges which is why they
are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
thing I saw not just with my words, but with transcripts 5 from
the County Court, and the Adult Drug Court.” Id. Plaintiff
refers to being drug free for four and a half years and having
academic success in college. Id. at 3. He states that he wishes
this Court to hear his case because he believes he will not
“see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
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Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
5 Plaintiff did not provide any transcripts.
C. Discussion 6
6 As a courtesy, the Court has provided plaintiff with
copies of any unpublished cases cited within this
Report-Recommendation & Order.
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
does not provide a short and plain statement of the claim
demonstrating why he is entitled to relief. Although he
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to
“Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
defendants of the claims against them. See FED. R. CIV. P.
8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further
lead the undersigned to recommend dismissal. First, in
referencing to “Due Process, 30.30 Speedy Trial Violation,
Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek
some kind of review of a criminal proceeding or conviction.
See Compl. at 3. Plaintiff also accuses all named judges
of denying him due process and contends that an unnamed
“ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4.
Such claims would be barred by Heck v. Humphrey.
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, the Supreme Court held that in order for a
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ
of habeas corpus.” Id. at 486-87. The court further held
that “[a] claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.” Id. at 487 (emphasis in
original).
[ ]
Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
no matter the target of the prisoner's suit ... if success in
that action would necessarily demonstrate the invalidity
of confinement or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (emphasis in original).
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24-
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s),
conviction, or sentence has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Zografidis, 2022 WL 21756775, at *7. Although
plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal
proceedings, conviction, and/or sentence. The claims plaintiff
seeks to pursue relate to allegations that he was denied
due process, denied speedy trial rights, and experienced
ineffective assistance of counsel. Accordingly, plaintiff's
claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. 7
7 The undersigned recognizes that claims that are
determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has
recommended dismissal with prejudice because
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plaintiff has only named defendants who are
immune from relief. Accordingly, the undersigned
is recommending dismissal of the claims based on
these immunities, rather than a Heck dismissal. The
undersigned has included the Heck review for sake
of completeness.
3. Immunities
Plaintiff names as defendants several defendants who are
immune from suit. Insofar as plaintiff names Hon. Michael
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate's Court Judge” 8 such
claims would be barred by judicial immunity.
8 Although plaintiff provides no facts regarding
any family court proceedings, that he named a
family court judge and makes general reference
to that he seeks review over actions taken by
a family court judge. Even if plaintiff were to
amend his complaint to provide facts about any
possible family court proceedings and details
about any alleged violations of his rights that he
believes he faced in that Court, if plaintiff seeks
this Court's review of an order of the family
court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court's review
or intervention of a currently pending/ongoing
Family Court proceeding, such review would be
barred by Younger. See Porter v. Nasci, No. 5:24-
CV-0033 (GTS/TWD), 2024 WL 1142144, at
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted),
report and recommendation adopted, 2024 WL
3158645 (N.D.N.Y. June 25, 2024) (“Under the
Rooker-Feldman doctrine, a federal district court
lacks authority to review a final state court order
or judgment where a litigant seeks relief that
invites the federal district court to reject or overturn
such a final state court order or judgment.”); see
also Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal
courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call
into question ongoing state proceedings.”).
*6 “With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
curiam)). “Judicial immunity has been created for the public
interest in having judges who are ‘at liberty to exercise
their functions with independence and without fear of
consequences.’ ” Id. (quoting Huminski v. Corsones, 396
F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
when the judge is accused of acting maliciously or corruptly.”
Id. (citation omitted); see Positano v. New York, No. 12-
CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
Mar. 7, 2013) (explaining that the plaintiff may not bring
action against a judge for actions taken in his judicial capacity,
even when the actions violated the ADA).
“Judicial immunity is immunity from suit, not just immunity
from the assessment of damages.” Zavalidroga, 2017 WL
8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “The only two circumstances in which judicial
immunity does not apply is when he or she takes action
‘outside’ his or her judicial capacity and when the judge takes
action that, although judicial in nature, is taken ‘in absence
of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
“In determining whether or not a judge acted in the clear
absence of all jurisdiction, the judge's jurisdiction is ‘to be
construed broadly, and the asserted immunity will only be
overcome when the judge clearly lacks jurisdiction over the
subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).
“Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it
is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Ceparano, 404 F. App'x at 539
(internal quotation marks and citation omitted). “Further, if
the judge is performing in his judicial capacity,” he “ ‘will not
be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted
in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.
App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362
(1978)). “Judges are not, however, absolutely ‘immune from
liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
Thus, as plaintiff names the judicial defendants in relation to
actions or omissions that they took in their roles as judges,
their actions are protected by absolute judicial immunity.
To the extent plaintiff names Hon. Felix Catena, “Retired
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Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does
not impact [his or] her immunity for acts taken in [his or]
her official capacity before her retirement.” McCray v. Lewis,
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
sue the judges their official capacities, the suit is barred by the
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
shields judges from suit to the extent that they are sued in their
official capacities.”).
*7 In addition, plaintiff also references, exclusively in his
“relief” section of the form complaint, “the Supreme Court
Appellate Division, Third Department” when stating that he
experienced “deliberate misconduct and malice.” Compl. at
7. He does not name this Court as a defendant anywhere in
the complaint. However, even if plaintiff were to have named
the Appellate Division, Third Department as a defendant,
such defendant would also need to be dismissed based on
Eleventh Amendment immunity as the Appellate Division “is
merely an agency or arm of New York State.” Benyi v. New
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.
Apr. 13, 2021) (citation omitted). Accordingly, to the extent
a liberal reading of the complaint may suggest that plaintiff
seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See
Compl.
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
Maxwell, Esq., Assistant District Attorney, in addition to the
Heck issues noted above, he would be protected by absolute
prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability
for those prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process.’ ” Barr v.
Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate.”
Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process,
“involves the exercise of discretion.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such
as “deciding whether to bring charges and presenting a case
to a grand jury or a court, along with the tasks generally
considered adjunct to those functions, such as witness
preparation, witness selection, and issuing subpoenas.”
Simon v. City of New York, 727 F.3d 167, 171 (2d
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
Court has found prosecutors absolutely immune from
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
the State's case ... [but] withheld absolute immunity for
conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining
witness.”). “[O]nce a court determines that challenged
conduct involves a function covered by absolute immunity,
the actor is shielded from liability for damages regardless
of the wrongfulness of his motive or the degree of injury
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (1985)).
Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld
potentially exculpatory material” that was used against
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater
detail, absolute immunity would extent to even this alleged
misconduct as such allegations clearly fall within the scope of
prosecutorial immunity. Accordingly, it is recommended that
any claims against ADA Samuel V. Maxwell be dismissed
for absolute prosecutorial immunity. “Furthermore, because
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading,
I recommend that the dismissal be with prejudice.” Phillips
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 223 (2d Cir. 2000)). 9
9 Plaintiff appears to characterize his submissions as
a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery
County Court to this Court. See Dkt. No. 7
(citing 28 U.S.C. § 1441). However, in addition
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to the infirmities mentioned above, plaintiff has
not demonstrated that any proceeding related to
this complaint has been properly removed to, or
is subject to removal to, this Court. See, e.g.,
28 U.S.C. § 1446. Indeed, plaintiff's submissions
appear to indicate that plaintiff is the plaintiff in the
County Court action. See id. § 1446(a).
III. Conclusion
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims
against Honorable Michael W. Smrtic; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; and Felix Catena,
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be
DISMISSED WITH PREJUDICE as follows: (1) claims
brought against them in their personal/individual capacities
for judicial immunity, and (2) claims brought against them in
their official capacities for Eleventh Amendment immunity;
and it is further
RECOMMENDED, that plaintiff's section 1983 claims
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading
of the complaint may suggest that plaintiff seeks to name
the Appellate Division, Third Department, as a defendant
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH
PREJUDICE as barred by Eleventh Amendment immunity,
and it is
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically (dkt. no. 4) and motion to
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did
not contend that he made any efforts to obtain
counsel on his own, show proof of any attorneys
he contacted. See Terminate Control Corp v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
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), parties have
FOURTEEN (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y
of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see
also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. 11
11 If you are proceeding pro se and are served with
this Report-Recommendation and Order by mail,
three (3) additional days will be added to the
fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
Recommendation and Order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(c).
All Citations
Not Reported in Fed. Supp., 2024 WL 4870495
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Cole v. Smrtic
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:24-CV-00847
Cole v. Smrtic et al
— N.D.N.Y. July 08, 2024 Docket
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Cole v. Smrtic
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History (2)
Direct History (2)
1. Cole v. Smrtic
2024 WL 4870495 , N.D.N.Y. , Nov. 21, 2024
Report and Recommendation Adopted by
2. Cole v. Smrtic
2025 WL 247901 , N.D.N.Y. , Jan. 21, 2025
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Cole v. Smrtic
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Abbas v. U.S., Not Reported in F.Supp.3d (2014)
2014 WL 3858398
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 3858398
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Shariff ABBAS, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 10–CV–0141S.
|
Signed Aug. 1, 2014.
Attorneys and Law Firms
Shariff Abbas, Flushing, NY, pro se.
DECISION and ORDER
WILLIAM M. SKRETNY, Chief Judge.
INTRODUCTION
*1 Plaintiff Shariff Abbas commenced this pro se action
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671 et seq., and other federal laws, alleging
violation of his rights while detained at the Buffalo Federal
Detention Facility (“BFDF”) in Batavia, the Albany County
Jail and the Perry County Correctional Center (“PCCC”) in
Uniontown, Alabama. Currently before the Court for review
pursuant to 28 U.S.C. § 1915(e)(2)(B) is plaintiff's amended
complaint 1 , submitted in response to the Court's Order filed
on August 16, 2013 (“August 16 Order”) (Docket No. 6),
which reviewed plaintiff's original complaint (Docket No. 4),
dismissed several of the claims asserted therein, and granted
plaintiff leave to file an amended complaint. For the reasons
set forth below, plaintiff's FTCA claims against the United
States related to his treatment at the BFDF may proceed and
his remaining claims will be dismissed.
1 Plaintiff's amended complaint is accompanied
by two voluminous bound volumes of exhibits
captioned “Exhibit's [sic] Part 1”, containing a
Table of Contents and exhibits 1–18 and “Exhibit
Part 2”, containing a Table of Contents and
exhibits 19–40. Given the voluminous nature of
the exhibits, numbering hundreds of pages, and
the manner in which they are bound, which would
make scanning them very difficult, the Court has
not required the Clerk's Office to scan them into the
court's electronic filing system. They will instead
be maintained in paper form in a separate file in the
Clerk's Office. See note to Docket No. 6.
DISCUSSION
A. Bivens Claims
The August 16 Order directed, inter alia, that plaintiff's
FTCA claims stemming from his detention at the Albany
County Jail and the PCCC be dismissed; that plaintiff be
granted leave to file an amended complaint adding Bivens 2
or other federal claims against individual deportation officers
and other personnel at BFDF who he alleges violated his
rights; and that in the even he failed to timely file an
amended complaint as directed, the Court would issue an
Order directing service of the complaint upon the United
States as the sole defendant to his medical malpractice claims
brought under the FTCA. (Docket No. 5).
2 Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,
29 L.Ed.2d 619 (1971).
The August 16 Order noted that in addition to his FTCA
claims, plaintiffs original complaint asserted a variety
of violations of his constitutional rights by individual
deportation officers and other personnel during his periods
of detention at BFDF and that these claims would be
actionable against individual defendants under the Bivens
doctrine, which allows a plaintiff to pursue constitutional
claims against federal officials in their individual capacities
for actions taken under color of federal law. See Lombardi
v. Whitman, 485 F.3d 73, 78 (2d Cir.2007) (“[W]here an
individual ‘has been deprived of a constitutional right by
a federal agent acting under color of federal authority,’ the
individual may bring a so-called Bivens action for damages
against that federal agent in an individual capacity, provided
that Congress has not forbidden such an action and that the
situation presents ‘no special factors counseling hesitation in
the absence of affirmative action by Congress.’ ”) (internal
citations omitted) (quoting Thomas v. Ashcroft, 470 F.3d 491,
496 (2d Cir.2006). The Court determined, however, that the
Bivens claims could not proceed because of plaintiff's failure
to name the individual custody officers and other officials
who are alleged to have violated his rights as defendants in
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the caption of the complaint, as required by Rule 10(a) of the
Federal Rules of Civil Procedure:
*2 The Court cannot allow such Bivens claims to
proceed, however, because of plaintiff's failure to name
the individual custody officers and other officials who are
alleged to have violated his rights as defendants in the
caption of the complaint. Rule 10 of the Federal Rules of
Civil Procedure provides that “[t]he title of the complaint
must name all the parties” Fed.R.Civ.P. 10(a). Therefore,
a party that is not named in the caption of a complaint or
amended complaint is not a party to the action.
(August 16 Order at 16) (citations omitted). The Court
proceeded to note that plaintiff's failure to name in the caption
of the complaint the individual defendants against whom
he wished to assert Bivens claims would make it infeasible
for the Court to determine which of the individual custody
officers mentioned in the body of the complaint should be
deemed to be defendants to such claims, given the often
ambiguous nature of his reference to such individuals. (Id.
at 16–17). The Court therefore concluded that “[t]he way to
remedy plaintiff's failure to name as defendants in the caption
of his complaint those individuals against whom he may seek
to assert Bivens claims, as suggested by the allegations set
forth in the body of the complaint, is to afford him leave to file
an amended complaint which conforms to the requirements
of Rule 10(a).” (Id. at 17) (citations omitted). “Accordingly,
plaintiff will be afforded the opportunity to file, as directed
below, an amended complaint in which he shall name in
the caption of the complaint, each of the individuals against
whom he intends to assert a Bivens claim or claims, in a
manner that conforms to the requirements of Rules 8(a) and
10(a) of the Federal Rules of Civil Procedure.” (Id.).
The Court accordingly directed, in the Conclusion of the
August 16 Order, that plaintiff be given leave to file an
amended complaint conforming to the requirements of Rules
8 and 10 of the Federal Rules of Civil Procedure, and the
Court again explicitly advised plaintiff of his duty to list all
defendants in the caption of the complaint:
Plaintiff is reminded, as explained
above, that if he wishes to assert Bivens
or other claims against defendants
other than the United States in the
amended complaint, he must name
those individuals in the caption of
the amended complaint and set forth
specific allegations with respect to
how those individuals violated his
rights.
(Id. at 21). (emphasis added).
While plaintiff's amended complaint contains allegations that
would support Bivens claims (see Amended Complaint, ¶¶
17–42 passim ), 3 it does not name in the caption of the
complaint any individuals against whom plaintiff is seeking
to assert Bivens clams, nor does the section of the complaint
captioned “PARTIES” list any individual defendants. While
plaintiff does, in the section of the amended complaint
captioned “CONCLUSION”, set forth a list of “Federal
Employees from (BFDF) Health Division” (Amended
Complaint ¶ 57), which includes individuals mentioned
elsewhere in the amended complaint in connection with
plaintiff's allegations that would be relevant to Bivens claims,
the individuals named therein are not listed as defendants in
the caption of the amended complaint or in plaintiff's recital
of the parties to this action at the beginning of the amended
complaint; as noted supra, plaintiff lists only one defendant-
the United States-in the complaint caption and in his recital
of the parties. Moreover, plaintiff's statement of relief sought
at the end of the amended complaint (captioned “PRAYER”)
demands judgment “against the defendant.” (Id. at p. 16)
(emphasis added). 4
3 Plaintiff divides his claims into two sections
of the amended complaint, namely “Medical
Malpractice” (Amended Complaint, p. 3–5, ¶¶
8–16), which contains allegations supportive of
his FTCA claims, and “U.S. D.H.S.-ICE Federal
Agency and Custody Officers Abuses” (Id. at
p. 5–14, ¶¶ 17–56), which contains allegations
supportive of his Bivens constitutional claims.
The Court notes, however, that a number of the
allegations set forth in the “Federal Agency and
Custody Officers Abuses” section of the complaint
are relevant to his FTCA malpractice claims. See,
e.g., Amended Complaint, ¶ 21.
4 Plaintiff's failure to include in the caption of the
amended complaint the names of any defendants
against whom he is asserting Bivens claims is not
the only instance of his disregard of the Court's
directives regarding the form and content of his
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
amended complaint. The August 16 Order noted
that many of the Bivens claims that plaintiff's
allegations would support against individuals
identified in the body of the complaint appeared
to be barred by the statute of limitations. August
16 Order at 18. The Court accordingly directed as
follows:
In the amended complaint that plaintiff
will be given leave to file, as provided
below, in which he must demonstrate either
that his Bivens claims stemming from his
incarceration at BFDF are timely or, if any
such Bivens claims are untimely, he must
allege facts demonstrating why equitable
tolling should be applied to the statute of
limitations periods for such claims.
(August 16 Order at 19). As noted supra, the
August 16 Order provided that plaintiff would
be given leave to file an amended complaint
with respect to his Bivens claims, and plaintiff
was further advised, in this regard, “that he
should address the timeliness of any Bivens
claims that he asserts in the amended complaint
and any argument as to why the limitations
period applicable to such claims should be
equitably tolled.” (August 16 Order at 21).
However, plaintiff's amended complaint does not
address the timeliness issue or offer any basis
for equitable tolling of the limitations period.
Given the Court's dismissal herein of the Bivens
claims based upon plaintiff's failure to identify
the defendants against whom he seeks to assert
such claims, the Court need not further address
the timeliness issue.
Plaintiff further disregarded the August 16 Order
to the extent that he reasserts claims stemming
from his detention at the Albany County Jail
from February 21, 2006–March 21, 2006, and
the Perry County Correctional Center (“PCCC”)
in Uniontown Alabama from August 5, 2006–
February 9, 2007. (Amended Complaint at ¶¶ 14,
15, 28–40). The August 16 Order dismissed the
claims stemming from plaintiff's incarceration at
those facilities pursuant to 28 U.S.C. § 1406(a)
for improper venue. (August 16 Order at 13–14).
Those claims remain dismissed.
*3 The Court's duty to construe liberally the pleadings of
pro se litigants does not absolve pro se litigants from the
duty to comply with the requirements of the Federal Rules
of Civil Procedure and court orders issued pursuant to those
rules. See, e .g., Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir.2008) (noting that pro se litigants are required to
familiarize themselves with procedural rules and comply with
such rules); McDonald v. Head Criminal Court Supervisor
Officer, 850 F.2d 121, 124 (2d Cir.1988) (“[W]hile pro se
litigants may in general deserve more lenient treatment than
those represented by counsel, all litigants, including pro ses,
have an obligation to comply with court orders. When they
flout that obligation they, like all litigants, must suffer the
consequences of their actions.”)). As discussed supra, this
Court's previous order explained to plaintiff the requirement
of Rule 10(a) that all defendants to an action be named and
identified as such in the caption to the complaint, and the
Court afforded him the opportunity to cure the defect in his
initial complaint by filing an amended complaint naming
all defendants. Plaintiff has inexplicably failed to comply
with the Court's order and the requirement of Rule 10(a).
Accordingly, to the extent that plaintiff seeks to bring Bivens
claims against individual Custody Officers and other BFDF
officials, see Amended Complaint, ¶ 58 (“Plaintiff want [sic]
this Court to bring Justice against Federal Agency Employees
who Violate constitutional law against Plaintiff's rights”),
such claims must be dismissed in light of his failure to
name those individuals as defendants in the caption of the
amended complaint. See, e.g., Ferdik v. Bonzelet, 963 F.2d
1258, 1262–63 (9th Cir.1992) (dismissing action for refusal
to comply with court orders to name defendants in the caption
as required by Rule 10(a)).
Moreover, as explained in the August 16 Order (pp. 14–
15), constitutional claims under Bivens cannot be brought
against the only defendant named in the complaint, the
United States. See Robinson v. United States Bur. Of Prisons,
244 F.Supp.2d 57, 66 (N.D.N.Y.2003) (“[A] Bivens action
may not be maintained against the United States.”) (citing
Washington v. DEA, 183 F.3d 868, 872 n. 8 (8th Cir.1999).
Nor can constitutional claims be asserted against the United
States under the FTCA. See Washington, 183 F.3d at 873;
Russ v. United States, 62 F.3d 201, 204 (7th Cir.1995)
(“[C]onstitutional wrongs cannot be remedied through the
FTCA,”) (citing FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct.
996, 1001–02, 127 L.Ed.2d 308(1994)).
Plaintiff having thus having failed to name a proper defendant
to his Bivens claims, the Court concludes that his Bivens
claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)
(B) for failure to state a claim on which relief can be granted.
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B. Treaty Claims
The Conclusion section of the amended complaint invokes,
as a basis for relief against defendant United States not
raised in plaintiffs original complaint, treaties to which
the United States is a signatory. Specifically, the amended
complaint states “At such time and places the United States
violates International Laws as A[sic] result the United
States are not in compliance with Refugee Convention
Requirements or The United Nations Convention against
Torture Prohibitions.” (Amended Complaint, § 57). It is
well established that the United Nations Convention Against
Torture and Other Cruel, Inhumane or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M.
1027, (“CAT”) does not give rise to a private right of action.
Renkel v. United States, 456 F.3d 640, 644 (6th Cir.2006)
(“As the Articles [of CAT] are not self-executing, they do
not create private rights of action; therefore, any private
lawsuit seeking to enforce the United States' obligations under
the Convention must be based on domestic law.”); Wolinski
v, Junious, 2012 U.S. Dist. LEXIS 65889, at *18–19,2012
WL 1657576 (E.D.Cal. May 10, 2012) (“The CAT does not
give rise to a private right of action because it is not self-
executing.) (citing Akhtar v. Reno, 123 F.Supp.2d 191, 196
(S.D.N.Y.2000),
*4 The United Nations Convention Relating to the Status
of Refugees, adopted July 28, 1951, art. 26, 19 U.S.T.
6259, 6576, 189 U.N.T.S. 150, 172 (“Refugee Convention”)
likewise does not create a private right of action. United States
v. Casaran–Rivas, 311 Fed. Appx. 269, 272 (11th Cir.2009)
(unpublished) (“[A]rgument that the indictment violated the
refugee Convention and CAT Treaty is without merit, as the
Refuge[e] Convention and CAT Treaty are not self-executing,
or subject to relevant legislation, and, therefore, do not confer
upon aliens a private right of action to allege a violation of
their terms.”); Reyes–Sanchez v. Ashcroft, 261 F.Supp.2d 276,
288–89 (S.D.N.Y.2003) (“Because the Refugee Convention
is not self-executing, it does not create individual rights.”).
Accordingly, plaintiff's claims against the United States under
CAT and Refugee Convention are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim on which
relief may be granted.
C. FTCA Claims
The medical malpractice-related claims under the FTCA
asserted by plaintiff in the amended complaint and stemming
from his detention at BFDF may go forward against defendant
United States. 5
5 As explained in the August 16 Order, plaintiff's
allegations of medical malpractice and the failure
to properly treat his serious medical condition are
clearly cognizable under the FTCA when asserted
against the United States. (August 16 Order at 6).
ORDER
IT IS HEREBY ORDERED, that plaintiff's Bivens claims are
dismissed with prejudice;
FURTHER, that plaintiff's claims under CAT and the Refugee
Convention are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to complete,
on plaintiff's behalf, and to issue, a summons for service of
process on defendant United States of America;
FURTHER, the Clerk of the Court is directed to send copies
of the Summons, Amended Complaint, 6 and this Order by
certified mail to the following, pursuant to Rule 4(i) of the
Federal Rules of Civil Procedure:
6 As explained in n. 1, supra, plaintiff's voluminous
exhibits to the amended complaint are maintained
in paper form in a separate file folder in the Clerk's
Office.
• Attorney General of the United States, Main Justice
Building, 10th and Constitution Avenues N.W., Washington,
DC 20530;
• Civil Process Clerk, United States Attorney for the Western
District of New York, United States Attorney's Office, USAO/
WDNY, 138 Delaware Avenue, Buffalo, New York 14202.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 3858398
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 46 of 112

Abbas v. U.S.
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:10cv00141
ABBAS v. UNITED STATES OF AMERICA
— W.D.N.Y. Feb. 22, 2010 Docket
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 47 of 112

Abbas v. U.S.
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (6)
Direct History (1)
1. Abbas v. U.S.
2014 WL 3858398 , W.D.N.Y. , Aug. 01, 2014
Related References (5)
2. Abbas v. United States
2013 WL 12424565 , W.D.N.Y. , Aug. 16, 2013
3. Abbas v. U.S.
2015 WL 5770092 , W.D.N.Y. , Sep. 30, 2015
Vacated and Remanded by
4. Shariff v. United States
689 Fed.Appx. 18 , 2nd Cir.(N.Y.) , Apr. 26, 2017
5. Abbas v. United States
2018 WL 10038793 , W.D.N.Y. , Feb. 28, 2018
6. Abbas v. United States
2019 WL 4922173 , W.D.N.Y. , Oct. 04, 2019
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 48 of 112

DiBenedetto v. Coley, Not Reported in Fed. Rptr. (2024)
2024 WL 4662979
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 4662979
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Vincent DIBENEDETTO, Plaintiff-Appellant,
v.
Maurice COLEY, Defendant-Appellee. *
* The Clerk of Court is respectfully directed to
amend the caption accordingly.
24-1029-cv
|
November 4, 2024
Appeal from a judgment of the United States District Court
for the Southern District of New York (Halpern, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment is AFFIRMED.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Vincent Dibenedetto, pro
se, Carmel, NY.
FOR DEFENDANT-APPELLEE: Joshua N. Cohen,
Assistant Solicitor General (Barbara D. Underwood, Solicitor
General, Mark S. Grube, Senior Assistant Solicitor General,
and Ji Young Ryu, Law Intern, on the briefs), for Letitia
James, Attorney General of the State of New York, New York,
NY.
Present: GERARD E. LYNCH, MICHAEL H. PARK,
EUNICE C. LEE, Circuit Judges.
SUMMARY ORDER
*1 Plaintiff-Appellant Vincent DiBenedetto, proceeding pro
se, filed a 42 U.S.C. § 1983 lawsuit against New York state
trooper Maurice Coley on July 11, 2022. In his operative
complaint, DiBenedetto alleged that Coley violated his Fourth
and Fourteenth Amendment rights during an August 2018
traffic stop and a traffic-court proceeding in April 2019.
During the traffic stop, Coley allegedly asked DiBenedetto
to surrender his unlocked phone, which he searched before
demanding DiBenedetto's license and registration. Coley
ticketed DiBenedetto for an unspecified offense. DiBenedetto
challenged that ticket at a traffic-court proceeding during
which he claims Coley violated his due-process rights.
The district court granted Coley's motion to dismiss after
concluding that DiBenedetto's claims were time-barred under
New York's three-year statute of limitations for § 1983 claims
and finding no basis for tolling the limitation periods. See
DiBenedetto v. Coley, No. 22-CV-05926, 2024 WL 1216703,
at *4 (S.D.N.Y. Mar. 21, 2024). We assume the parties’
familiarity with the underlying facts, procedural history of the
case, and issues on appeal.
I. Rooker-Feldman
Coley argues that the Rooker-Feldman doctrine deprived the
district court of jurisdiction over DiBenedetto's traffic-court
claims because he “complains of injuries caused by a state
court judgment.” But DiBenedetto seeks damages for Coley's
misconduct in securing that judgment, not reversal of the
judgment itself. The district court thus properly exercised
jurisdiction because “Rooker-Feldman does not bar plaintiffs
from seeking compensatory damages for misconduct that
defendants pursued in obtaining state court judgments.”
Dorce v. City of New York, 2 F.4th 82, 104 (2d Cir. 2021)
(quotation marks omitted).
II. Timeliness
“We review de novo a district court's grant of a defendant's
motion to dismiss, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the
plaintiff's favor. A district court's legal conclusions, including
its interpretation and application of a statute of limitations,
are likewise reviewed de novo.” City of Pontiac Gen. Emps.’
Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011)
(citations and quotation marks omitted). 1 “[A] statute of
limitations defense may be decided on a Rule 12(b)(6) motion
if the defense appears on the face of the complaint.” Thea
v. Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015) (quotation
marks omitted).
1 DiBenedetto proceeds pro se, so “[w]e liberally
construe pleadings and briefs submitted by [him],
reading such submissions to raise the strongest
arguments they suggest.” Publicola v. Lomenzo,
54 F.4th 108, 111 (2d Cir. 2022) (quotation marks
omitted).
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DiBenedetto v. Coley, Not Reported in Fed. Rptr. (2024)
2024 WL 4662979
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
“In section 1983 actions, the applicable limitations period is
found in the general or residual [state] statute [of limitations]
for personal injury actions.” Ormiston v. Nelson, 117 F.3d 69,
71 (2d Cir. 1997) (quotation marks omitted). So “New York's
three-year statute of limitations for unspecified personal
injury actions governs section 1983 actions in New York.”
Id. (citation omitted). “State tolling rules govern[ ] ... except
when inconsistent with the federal policy underlying the
cause of action under consideration.” Bd. of Regents of
Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 485 (1980)
(quotation marks omitted). But “federal law governs the
determination of the accrual date (that is, the date the statute
of limitations begins to run) for purposes of the statute of
limitations in a section 1983 action.” Ormiston, 117 F.3d at
71.
*2 The district court correctly concluded that DiBenedetto's
complaint was not timely as to his traffic-stop claims.
Those claims accrued on the day of the injury—that is,
the stop and search in August 2018—so his July 2022
filing came after the three-year limitations period had
expired. See Eagleston v. Guido, 41 F.3d 865, 871 (2d
Cir. 1994). Nor has DiBenedetto pleaded the facts required
for equitable tolling or tolling by equitable estoppel under
New York law. See O'Hara v. Bayliner, 89 N.Y.2d 636,
647 (1997) (describing the “extraordinary [f]ederal equitable
tolling remedy”); Zumpano v. Quinn, 6 N.Y.3d 666, 673
(2006) (describing equitable estoppel for statute-of-limitation
defenses). DiBenedetto points to the time he spent in fruitless
state-court appeals of his traffic-violation conviction, which
he appears to believe were required before he could bring
this action. But DiBenedetto could have sued Coley for
violating his Fourth Amendment rights independently of his
state-court case. See Knick v. Twp. of Scott, 588 U.S. 180,
185 (2019) (“[T]he settled rule is that exhaustion of state
remedies is not a prerequisite to an action under [42 U.S.C.]
§ 1983.” (quotation marks omitted)). Neither a mistake of
law nor pro se status is sufficient for equitable tolling. See
Menominee Indian Tribe of Wis. v. United States, 577 U.S.
250, 257 (2016); Smith v. McGinnis, 208 F.3d 13, 18 (2d
Cir. 2000). We thus affirm the district court's dismissal of the
traffic-stop claims as untimely.
DiBenedetto's traffic-court claims, however, may be timely.
New York's Executive Order 202.8 and later extensions
declared that “any specific time limit for the commencement,
filing, or service of any legal action ... is hereby tolled”
because of the state's disaster declaration in March 2020. See
9 N.Y.C.R.R. §§ 8.202.8, 8.202.67. The New York Court of
Appeals construes these executive orders as having “tolled all
filing periods” from March 20, 2020 to November 3, 2020.
Favourite Ltd. v. Cico, 42 N.Y.3d 250, 260 (2024). It is thus
possible that DiBenedetto's traffic-court claims were timely
filed. 2 But we need not decide whether the executive orders
affect the statute of limitations here because DiBenedetto
failed to state a claim as to the traffic-court proceedings, and
“[w]e may affirm a district court's grant of a motion to dismiss
on any basis supported by the record, including grounds upon
which the district court did not rely.” Pauwels v. Deloitte
LLP, 83 F.4th 171, 178 (2d Cir. 2023) (citations and quotation
marks omitted).
2 Assuming the executive orders tolled the statute of
limitations on DiBenedetto's claims, his traffic-stop
claims would still have been untimely as of March
2022, but his due-process claims would have been
timely until November 15, 2022, well after his July
2022 filing.
III. Failure To State a Claim
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id. (quotation marks
omitted). In other words, the complaint must raise more than
a “sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
DiBenedetto's allegations about his traffic-court proceeding
failed to state a claim. Liberally construed, DiBenedetto's
complaint raises two claims relating to the proceeding. First,
he alleges that Coley violated his due-process rights by giving
false testimony as a witness. But witnesses have absolute
immunity from § 1983 claims for their testimony, even when
the witness is a police officer and gave false testimony.
Briscoe v. LaHue, 460 U.S. 325, 335-36 (1983); Rehberg
v. Paulk, 566 U.S. 356, 367 (2012). DiBenedetto's false-
testimony claim thus fails under Rule 12(b)(6).
Second, DiBenedetto alleges a conspiracy by Coley, the
traffic-court judge, and the prosecutor to violate his civil right
to a fair trial. In support, DiBenedetto points to the hostility of
the traffic-court proceeding and to social-media connections
among the three alleged conspirators. “To prove a § 1983
conspiracy, a plaintiff must show: (1) an agreement between
two or more state actors or between a state actor and a private
entity; (2) to act in concert to inflict an unconstitutional injury;
and (3) an overt act done in furtherance of that goal causing
damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d
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DiBenedetto v. Coley, Not Reported in Fed. Rptr. (2024)
2024 WL 4662979
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Cir. 1999). “[C]omplaints containing only conclusory, vague,
or general allegations that the defendants have engaged in
a conspiracy to deprive the plaintiff of his constitutional
rights are properly dismissed.” Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (quotation marks
omitted). Although § 1983 conspiracies may be proven by
“circumstantial, rather than direct, evidence,” Pangburn, 200
F.3d at 72, DiBenedetto alleged only a “gut feeling” that
social-media “[f]riends help friends,” without referencing any
express or tacit agreement to inflict constitutional injury. Such
“[d]iffuse and expansive allegations are insufficient, unless
amplified by specific instances of misconduct.” Ostrer v.
Aronwald, 567 F.2d 551, 553 (2d Cir. 1977). DiBenedetto also
failed to allege how Coley could have “act[ed] in concert”
to bring about his own false testimony, the prosecutor's
questions about DiBenedetto's driving record, or the traffic-
court judge's decision to bar questions about the cell-phone
search.
*3
* * *
We thus conclude that DiBenedetto's complaint was properly
dismissed because his traffic-stop claims were untimely and
his traffic-court claims failed under Rule 12(b)(6). We have
considered all of DiBenedetto's remaining arguments and find
them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
All Citations
Not Reported in Fed. Rptr., 2024 WL 4662979
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 51 of 112

DiBenedetto v. Coley
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Docket 24-1029
DiBenedetto v. Coley
— C.A.2 Apr. 19, 2024 Docket
2. Docket 7:22-CV-05926
DiBenedetto v. Coley et al
— S.D.N.Y. July 12, 2022 Docket
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 52 of 112

DiBenedetto v. Coley
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. DiBenedetto v. Coley
2024 WL 1216703 , S.D.N.Y. , Mar. 21, 2024
Affirmed by
2. DiBenedetto v. Coley
2024 WL 4662979 , 2nd Cir.(N.Y.) , Nov. 04, 2024
Related References (1)
3. DiBenedetto v. Coley
2022 WL 4097266 , S.D.N.Y. , Sep. 02, 2022
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2021 WL 1143619
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Shveta Kakar KURTZ, Daniel L. Kurtz, A.K., a
minor child, and M.K., a minor child, Plaintiffs,
v.
David HANSELL, as the Duly Appointed Commissioner
of the New York City Administration for Children's
Services, Division of Child Protection, New York
Comptroller, City of New York, Yscary Rodriguez,
individually and as a caseworker employed by ACS,
Bhojranie Maygoo, as a caseworker employed by ACS,
Eunice Iwenofu, as a caseworker employed by ACS,
Brenda Lawson, as an ACS case manager/supervisor,
Esperanza Sandoval, as a supervisor in the family support
unit employed by ACS, Dr. Peter Fabricant, as a treating
physician and state actor operating under color of law,
Dr. Marie Lupica, treating physician and state actor
operating under color of law, Dr. Ramzi Marwan Shaykh,
as a treating physician, DR. Shari L. Platt, as a treating
physician and state actor operating under color of law,
Dr. Sheena Ranade, as a treating physician, LSW Karen
Glass, as a state actor, Unnamed ACS Workers and
Employees 1–10, Unnamed Employees and Workers of
New York Presbyterian Hospital/Weill Cornell Medical
Center 1–10, Unnamed Workers and Employees of Mt.
Sinai Hospital 1–10, New York Presbyterian Hospital/
Weill-Cornell Medical Center, Mt. Sinai Hospital,
Administration for Children's Services, Defendants.
20 Civ. 3401 (PAE)
|
Signed 03/24/2021
Attorneys and Law Firms
Robert J. Del Col, Smithtown, NY, for Plaintiffs.
Thais R. Ridgeway, New York City Law Department, New
York, NY, Alejandra Rosa Gil, Heidell, Pittoni, Murphy
& Bach, White Plains, NY, Daniel Scott Ratner, Richard
Michael Sullivan, Jr., Heidell, Pittoni, Murphy & Bach, LLP,
Stamford, CT, for Defendants.
OPINION & ORDER
PAUL A. ENGELMAYER, United States District Judge
*1 This case arises from—and challenges conduct by
doctors and government officials in connection with—
child-removal proceedings carried out by the New York
Administration for Children's Services (“ACS”). Plaintiffs
Shveta Kakar Kurtz (“Kakar”) and Daniel Kurtz (“Kurtz,”
and together with Kakar, the “parents”) are the parents of
twin, infant girls, A.K. and M.K., who were born nearly
two months premature. One night while changing A.K.’s
diaper, Kurtz dropped her on the floor of the family's kitchen,
breaking her femur. After the first doctor who examined
A.K. failed to diagnose that injury, the parents took A.K.
to a second hospital, which correctly diagnosed it. Over the
ensuing weeks, after follow-up visits at multiple hospitals,
several medical workers filed reports of suspected abuse or
neglect to ACS. ACS then launched removal proceedings in
New York family court, starting nine months of litigation.
During that time, the parents were either separated from M.K.
and A.K. or had restrictions placed on their contact with them.
Ultimately, after the family moved for summary judgment
in family court, ACS withdrew its removal petition and the
family court dismissed the action with prejudice.
Plaintiffs allege that the removal proceedings resulted from an
unlawful conspiracy between the medical staff who initially
failed to diagnose A.K.’s broken femur, other doctors and
medical institutions, and ACS, aimed at covering up the
first hospital's failure to diagnose A.K.’s femur fracture and
retaliating against the family for its litigiousness. They sue the
City of New York, ACS, two hospitals, and many employees
of each institution under 42 U.S.C. §§ 1983 and 1985, alleging
malicious prosecution, abuse of process, conspiracy, false
imprisonment, and violation of their constitutional rights to
family integrity and freedom of association. They also bring
claims under state law for, inter alia, intentional infliction
of emotional distress (“IIED”), medical malpractice, loss of
consortium and companionship, and defamation.
Before the Court now are four motions to dismiss: three
by groups of private medical professionals (“Medical
Defendants”) and the fourth by the City of New York on
behalf of all municipal employees and entities sued and
served thus far (“Municipal Defendants”). For the reasons that
follow, the Court grants those motions in part and denies them
in part.
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I. Background
A. Factual Background 1
1 This factual account draws from the amended
complaint, Dkt. 55 (“Am. Compl.”). See DiFolco
v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir.
2010) (“In considering a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), a
district court may consider the facts alleged in the
complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference
in the complaint.”). For the purpose of resolving the
motion to dismiss under Rule 12(b)(6), the Court
presumes all well-pled facts to be true and draws
all reasonable inferences in favor of plaintiff. See
Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d
Cir. 2012). The Court has also considered publicly
filed documents from the underlying family-court
proceedings, although not for the truth of the
matters asserted in those documents. See Glob.
Network Commc'ns, Inc. v. City of New York, 458
F.3d 150, 157 (2d Cir. 2006) (“A court may take
judicial notice of a document filed in another court
not for the truth of the matters asserted in the
other litigation, but rather to establish the fact
of such litigation and related filings.” (citation
omitted)); Davis v. Whillheim, No. 17 Civ. 5793
(KPF), 2019 WL 935214, at *6 (S.D.N.Y. Feb. 26,
2019) (taking judicial notice of “publicly available
filings, orders, and appeals in the Family Court
system”); Lamont v. Farucci, No. 16 Civ. 7746
(KMK), 2017 WL 6502239, at *1 n.4 (S.D.N.Y.
Dec. 18, 2017) (same). Those include the removal
petition, order of dismissal, and similar documents
submitted by the defendants in connection with the
motions to dismiss.
1. Parties
a. Plaintiffs
*2 Kakar and Kurtz are the biological parents of A.K. and
M.K. Am. Compl. ¶¶ 8–9. A.K. and M.K. are fraternal twins
who were born nearly two months premature, on June 4, 2018.
Id. ¶ 10. Between August 2018 and May 2019, the parents
were named as respondents in child-removal proceedings in
New York family court, in which ACS alleged that they had
abused A.K. and derivatively neglected M.K. Id. ¶¶ 8–10.
b. Defendants
Plaintiffs have sued many people and entities. For clarity, the
Court groups them as they have grouped themselves in filing
motions to dismiss.
i. Municipal Defendants
Plaintiffs have sued ACS employees, ACS itself, the City
of New York (“the City”), and others. 2 David Hansell is
the Commissioner of ACS. Id. ¶ 12. Brenda Lawson is a
director of field operations for ACS and is alleged to have
“made the determination to commence an emergency removal
proceeding” in order to “teach [the parents] a lesson.” Id.
¶ 15. Yscary Rodriguez, Bhojranie Maygoo, and Eunice
Iwenofu are ACS caseworkers. Id. ¶¶ 13–14, 17. Rodriguez
was the primary point of contact between plaintiffs and
ACS, and worked with Maygoo. Id. ¶¶ 13–14. Iwenofu took
over Rodriguez's responsibilities in October 2018. Id. ¶ 17.
Plaintiffs allege that both Rodriguez and Iwenofu disagreed
with ACS's decision to commence removal proceedings. Id.
Lawson supervised Rodriguez. Id. ¶ 15. Esperanza Sandoval
supervised Iwenofu. Id. ¶ 18.
2 Plaintiffs also name the New York Comptroller and
Division of Child Protection as defendants, but do
not allege any facts about them. In any event, as
discussed below, these are not proper parties to this
lawsuit.
ii. Medical Defendants
Weill Cornell Defendants: New York Presbyterian Hospital/
Weill Cornell Medical Center (“Weill Cornell”) is a hospital
on the Upper East Side of Manhattan, where the parents first
took A.K. on the night of her injury because of its proximity
to their home. Id. ¶ 33. Dr. Marie Lupica is an attending
physician there who treated A.K. that night. Id. ¶ 34. Plaintiffs
allege that she negligently failed to diagnose A.K.’s femur
fracture, improperly discharged A.K., and later sought to
cover up that error by reporting the parents to ACS. Id. ¶¶ 34–
35. Dr. Ramzi Marwan Shaykh is a resident at Weill Cornell
who also treated A.K. the same night. Id. ¶ 36. Dr. Shari Platt
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is the director of emergency medicine at Weill Cornell. Id. ¶
37. Although she never saw or treated A.K., she supervises
Dr. Lupica and, after being notified of Dr. Lupica's alleged
misdiagnosis, allegedly conspired with others to cover up that
error. Id.
Mt. Sinai Defendants: A.K. and M.K. were born at Mt. Sinai
Hospital (“Mt. Sinai”), where they remained in the neonatal
intensive care unit (“NICU”) for nearly two months after their
birth. Id. ¶ 49. On the night of A.K.’s injury, the parents took
her to Mt. Sinai after Dr. Lupica discharged her from Weill
Cornell but A.K. continued to be in pain. Id. There, A.K. was
diagnosed with a femur fracture. Id. ¶ 20. Several days later,
after the parents brought A.K. back to Mt. Sinai for a follow-
up visit, she was examined by Dr. Sheena Ranade, a pediatric
orthopedist, who administered additional x-rays to assess a
potential clavicle fracture. Id. ¶¶ 22–24. Dr. Ranade is the co-
author of an article published in the Journal of the American
Academy of Orthopedic Surgeons titled “The Role of the
Orthopedic Surgeon in the Identification and Management of
Non-Accidental Trauma”; plaintiffs allege that Dr. Ranade
was “predisposed” to perceive abuse where there was, in fact,
none. Id. ¶ 58. Dr. Ranade reported the parents to ACS for
suspected abuse or neglect after the August 13, 2018 visit. Id.
¶ 57.
*3 HSS Defendants: Weeks later, the parents took A.K. for
a single follow-up examination at the Hospital for Special
Surgery (“HSS”). Id. ¶ 38. There, she was seen by Dr. Peter
Fabricant. Id. Karen Glass is a social worker at HSS who also
had contact with the parents and A.K. that day. Id. ¶ 41. Dr.
Fabricant later contacted Dr. Platt at Weill Cornell, an alleged
“affiliate” of HSS, to notify her about Weill Cornell's failure
to diagnose A.K.’s femur fracture. Id. ¶¶ 38–39. Glass later
filed a report of suspected abuse to ACS and Dr. Fabricant met
with ACS, Dr. Lupica, and Dr. Ranade on the morning that
ACS ultimately commenced removal proceedings. Id. ¶ 83.
2. The August 8, 2018 Injury
On August 8, 2018, while changing A.K.’s diaper, Kurtz
dropped her onto the kitchen floor. Id. ¶ 47. He and Kakar
then walked her to the emergency room (“E.R.”) at Weill
Cornell, two blocks from their home. Id. They arrived at about
7 p.m.; A.K. spent the several hours in the ER. Id. ¶ 48. There,
Dr. Lupica treated her for “no more than five minutes.” Id.
Weill Cornell conducted a CT scan of A.K.’s head, but not
a full body exam “despite obvious discomfort to her lower
extremities.” Id. Kurtz also “had to urge the resident” to mind
A.K.’s neck, which “was still in obvious pain.” Id. Dr. Lupica
discharged A.K. around midnight. Id.
Once home, the parents noticed that A.K. was in continued
pain and not moving her left leg. Id. ¶ 49. Concerned, they
took her to Mt. Sinai later that night. Id. There, she was
diagnosed with a femur fracture, as well as “healing” and
“calcified” rib fractures, which plaintiffs allege occurred in
the NICU after her premature birth. Id. ¶ 50. She was also
examined by, among others, non-defendant Dr. Katherine
Grimm, a pediatric-abuse specialist, who concluded there was
no evidence of abuse and, on August 9, 2018, discharged
A.K. Id. ¶ 51. On August 10, 2018, the parents took A.K. to
their pediatrician, Dr. Laura Popper, who expressed concern
at Weill Cornell's failure to diagnose A.K.’s broken femur. Id.
¶ 52.
3. August 13, 2018 Follow-Up at
Mt. Sinai and First ACS Report
On August 13, 2018, the parents took A.K. to Mt. Sinai for a
follow-up examination. Id. ¶ 53. There, she was examined by
Dr. Ranade. Id. Dr. Ranade expressed concern that, in addition
to the femur fracture, A.K. might have suffered a clavicle
fracture. Id. ¶¶ 54–55. She also told the parents that she
suspected A.K. might have brittle-bone disease, and advised
them to have A.K. admitted to the E.R. for genetic testing.
Id. ¶¶ 55–56. The parents heeded that recommendation; A.K.
was admitted to the Mt. Sinai E.R. Id. ¶ 56.
However, the parents soon learned that Dr. Ranade had
contacted ACS and that A.K. would not be able to leave the
hospital that day. Id. ¶¶ 56–57. 3 Soon, two detectives and
two ACS caseworkers—Rodriguez and Maygoo—arrived at
Mt. Sinai to speak with the parents. Id. ¶ 61. While A.K.
remained in the hospital, the detectives and caseworkers,
along with the parents, went back to the family's home to
perform an inspection. Id. ¶ 62. There, they spoke with the
family's 24-hour live-in baby nurse, who corroborated Kurtz's
account of how A.K.’s injury had occurred on August 8,
2018. Id. The detectives left, and never contacted the family
again. Id. ¶ 63. ACS's Rodriguez stated that, although she
had few concerns, the matter would have to remain open
for 60 days, during which time she would periodically visit
the home. Id. Between August 14 and 30, 2018, she did so,
without event. Id. ¶ 65. On August 14, 2018, Dr. Grimm
interviewed the parents, conducted further tests, and was left
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with no suspicion of abuse or neglect. Id. ¶ 64. A.K. was then
discharged from Mt. Sinai. Id.
3 Plaintiffs allege that those x-rays did not show
additional fractures or injuries, including to A.K.’s
clavicle, but elsewhere state that the results were
“inconclusive.” Id. ¶¶ 25, 59, 105.
4. August 23, 2018 Follow-Up at HSS
*4 On August 23, 2018, the parents took A.K. for a second
follow-up examination, this time at HSS, where she was
examined by Dr. Fabricant. Id. ¶ 68. He took an x-ray and
concluded that A.K.’s femur was healing well. Id. He also
informed the parents that he was a mandatory reporter and
would have to report the injury to ACS. Id. ¶ 69. After the
parents told him that ACS had already been contacted, Dr.
Fabricant responded that, in that case, he would need only to
access Mt. Sinai's medical records. Id. The parents agreed to
authorize such access, and met with Glass, a social worker at
HSS, to sign a medical release. Id.
5. August 27-29, 2018 Email
Chain and Second ACS Report
On August 27, 2018, Dr. Fabricant wrote Dr. Platt at Weill
Cornell to give her a “heads up” that Weill Cornell had
apparently failed to diagnose A.K.’s injury. Id. ¶ 70. He
asked whether, in fact, the treating doctor had solely focused
on “head trauma,” rather than the broken femur and, if
so, whether it was “perhaps a systems issue that could be
addressed?” Id. Dr. Platt responded, confirming that it was “a
definite miss” and that she had “educated her attending,” i.e.,
Dr. Lupica. Id. ¶ 71.
However, Dr. Platt soon emailed again. In that follow-up,
she forwarded Dr. Lupica's response to her. Dr. Lupica there
claimed that, having reviewed the Mt. Sinai records that
Dr. Platt had apparently sent her, “there was no way that
the baby had that injury when [I] saw him,” given that “I
watched him for 4 hours.” Id. ¶¶ 73–74. 4 Dr. Lupica also
stated that the femur break seemed “as though it required
brute force of pressure to break,” and that “child abuse
seems to be the diagnosis now.” Id. ¶ 75. In response,
HSS social worker Glass emailed back that she “HIGHLY
recommend[ed] for [Weill] Cornell to contact the ACS worker
and share [Dr. Lupica's story].” Id. ¶ 77. Dr. Fabricant agreed,
recommending that Dr. Lupica “talk with the ACS worker.”
Id. ¶ 78.
4 Plaintiffs note that Dr. Lupica, in this email,
misidentified A.K.’s gender. They also allege that
Dr. Lupica's claim to have spent four hours with
A.K. in the E.R. was a lie. Am. Compl. ¶ 74.
On August 28, 2018, Glass contacted Rodriguez and the ACS-
mandated reporter line, filing a report of suspected child abuse
based on the August 8, 2018 injury. Id. ¶ 79. On August
29, 2018, Dr. Platt responded on the email chain, describing
the parents as “dangerous,” thanking Glass and Dr. Fabricant
for “partnering” with Weill Cornell, and asking them to let
her know if they needed to “collaborate” further. Id. ¶ 80.
On August 30, 2018, Dr. Lupica wrote to the email chain,
confirming that she had spoken with an ACS caseworker. Id.
¶ 81.
6. ACS's Investigation and
Commencement of Removal Proceedings
On August 28, 2018, after Glass made her report to ACS,
two ACS caseworkers arrived at the hotel where the parents
were staying while their apartment underwent repairs. Id.
¶ 92. They informed the parents that they were there as a
result of a separate report by Dr. Fabricant. Id. ¶¶ 93–94.
The parents reacted with astonishment, anger, and outrage,
admonishing the caseworkers for announcing themselves as
child-protective services at the hotel reception. Id. ¶ 95.
On August 29, 2018, Rodriguez visited the parents again,
informing them that a family support conference (“FSC”) had
been scheduled for the next morning at 10:30 a.m. 5
5 Plaintiffs allege that FSCs are expected to seek to
maintain intact families and pursue solutions other
than removal. Am. Compl. ¶ 98.
On August 30, 2018, ACS held an FSC, at which the parents,
their family, and many friends testified in support of the
parents. Id. ¶¶ 99–100. It was cut short, however, when
Brenda Lawson, representing ACS, stated that ACS was
recommending removal and intended to take the matter to
family court that afternoon. Id. ¶ 101. Kakar alleges that,
the same morning, she learned from an unidentified source
that Lawson had been “livid” about the parents’ treatment of
ACS's caseworkers at the hotel on August 28, 2018, and had
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been overheard stating, “Who do they think they are? ... Just
because they are rich lawyers.... I will show them.” Id. ¶ 102.
*5 The same day, ACS filed, in New York family court,
a petition to terminate parental rights. 6 The Petition's
addendum, which set forth the Petition's factual basis, stated
that Dr. Ranade had reported that A.K. “presented with
injuries to her collarbone,” and that the x-rays she took “came
back inclusive.” 7 Id. ¶ 105. It also cited Dr. Lupica's claim
that, when she examined A.K. on August 8, 2018, “there
[was] no way that the baby had a leg fracture,” given that
she “was moving her arms and legs,” and that her medical
opinion was that A.K.’s injuries did not occur as Kurtz had
reported. Petition at 6–7. It did not disclose Dr. Grimm's
prior assessment that “this was an unfortunate accident for a
premature baby,” that “both clavicles looked the same” from
the x-rays, and that “no one can testify at this time that this
infant was abused,” despite evidence that Lawson had spoken
with Dr. Grimm twice on August 14, 2018. Am. Compl. ¶ 109;
see id. ¶ 108 (Dr. Grimm reporting that a “clavicle fracture
has not been confirmed by radiology and when I saw the baby,
she lifted both arms spontaneously”).
6 The Amended Complaint characterizes the petition
as an “emergency petition,” but the petition
is not styled as such. The protective order
issued that day, citing “exigent circumstances and
allegations in the petition” and entitled “ORDER
(Directing Temporary Removal of Child-After
Petition Filed),” was issued by a court, after a
preliminary hearing, pursuant to N.Y. Fam. Ct. Act.
§ 1027, which does not provide for emergency
removal. See Dkt. 100 (“Ridgeway Decl.”), Exs. A
(“Petition”), C (“Removal Order”); cf. N.Y. Fam.
Ct. Act § 1024 (“Emergency Removal Without
Court Order”).
7 The Amended Complaint notes that the results
of the August 13, 2018 x-rays were, in fact,
“inconclusive,” not “inclusive.” Am. Compl. ¶¶ 25,
105.
Also on August 30, 2018, the family court, with Judge
Frias-Colon presiding, held a preliminary hearing on the
ACS Petition. Id. ¶ 106. ACS's attorney represented at the
hearing that A.K. “does have a collarbone fracture,” which
had been confirmed by x-rays, despite the above evidence,
allegedly in ACS's possession, to the contrary. Am. Compl.
¶ 106. According to the hearing transcript, doctors Lupica,
Fabricant, and Ranade had met with ACS that morning to,
as plaintiffs characterize it, “press the case” for removal. Id.
¶ 83. After the hearing, the family court issued an order
directing A.K.’s temporary removal from the family home,
because she “has presented with injuries and allegations of
physical abuse were made with no plausible explanation
given.” Removal Order at 1. The court directed that A.K. and
M.K. be temporarily placed with Rahul Kakar, their maternal
uncle, pending the removal proceeding. Id.; Am. Compl. ¶
117.
7. Post-Removal Events
Between August 30 and October 2, 2018, A.K. and M.K.
resided with their uncle on Long Island. Am. Compl. ¶ 117.
The family court then modified its order to allow Kakar's
mother, who moved from India to New York City “on a
moment's notice,” to assume custody of the children while
living in plaintiffs’ home and sleeping on their floor. Id. At
no point were the parents permitted to be alone with either
daughter. Id. ¶ 118.
On September 10, 2018, the parents took A.K. for a follow-
up appointment with Dr. Ranade, accompanied by their live-
in baby nurse. Id. ¶¶ 120, 124. There, they confronted Dr.
Ranade about her “misleading” ACS report; Dr. Ranade
recommended that they see another doctor, but the parents
stated that, given the ACS proceeding, they had no choice
but to remain with her. Id. ¶ 122. After the appointment, Dr.
Ranade reported to ACS that the parents had brought A.K. to
the appointment unsupervised. Id. ¶ 123. The plaintiffs allege
this was wrong, and that the baby nurse waited in the reception
area while the parents met with Dr. Ranade. Id. ¶ 124. On
October 4, 2018, at another follow-up visit with Dr. Ranade,
she ordered x-rays of A.K.’s clavicle to look for “healing
fractures,” which the parents did not authorize Id. ¶ 125.
*6 On October 30, 2018, ACS's Rodriguez and Iwenofu
visited the parents and A.K., and told the parents they did not
agree with their supervisors and “did not believe this was an
abuse case.” Id. ¶¶ 127–28. Yet Iwenofu stated, if the parents
wanted to see the case resolved, they would likely have to
admit to some neglect. Id. ¶ 129. She also stated that she “had
never seen a case discharged without ‘someone taking the
blame.’ ” Id.
On December 4, 2018, the parents gave ACS and the family
court four affidavits—one from Dr. Grimm, one from the
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family's pediatrician, and two from doctors with whom ACS
had consulted “for over a decade”—each concluding that (1)
the femur fracture was consistent with an accidental fall, not
abuse; (2) any rib fractures were consistent with bone fragility
due to premature birth; and (3) there was no “conclusive”
evidence of a clavicle fracture on August 13, 2018. Id. ¶¶ 136–
40. After reviewing these reports, the family court judge's
clerk counseled ACS that it “may want to reconsider its
position.” Id. ¶ 141.
On January 9, 2019, ACS stated that it was seeking to retain
a neutral expert, and if the expert agreed there was no abuse,
they would withdraw the petition. Id. ¶ 155. At a February 4,
2018 hearing, ACS represented that its expert, Dr. Hoffman-
Rosenfeld, had reviewed all of Mt. Sinai's and HSS's medical
records. Id. ¶ 158. But it soon became clear that that statement
was untrue, as ACS had instead sent her the August 27–30,
2018 email chain between the HSS Defendants, Dr. Platt, and
Dr. Lupica, and not other actual medical records. Id. ¶¶ 159–
62.
At a February 6, 2018 hearing, ACS's position began
to soften. It stated that Dr. Hoffman-Rosenfeld “cannot
state physically what happened at this time,” and that she
would need to interview the parents and conduct physical
examinations of A.K. and M.K. Id. ¶ 163. In response, Judge
Frias-Colon remarked that this substantial reversal gave her
“some concern about the decision to have filed this as an
abuse case as opposed to being truly what everyone said from
the beginning which was a tragic accident.” Id. ¶ 167.
On April 10, 2019, the parents moved for summary judgment
in the removal proceeding. Id. ¶ 172. On May 2, 2019,
Dr. Hoffman-Rosenfeld concluded that A.K.’s femur break
“could have resulted from a fall,” that the “rib fractures are
consistent with fractures related to metabolic bone disease of
prematurity,” that the healing timeline comported with their
occurrence before discharge from the NICU, and that, after
“review of the radiology, no clavicle fracture was identified.”
Id. ¶ 175.
On May 7, 2019, ACS withdrew its Petition. Id. ¶ 176. The
same day, the family court dismissed it with prejudice. Id.
B. Procedural History
On May 1, 2020, plaintiffs filed the Complaint, Dkt. 1, and on
May 5, 2020, the Amended Complaint. Dkt. 55. On August
14, 2020, the Mt. Sinai Defendants filed a motion to dismiss,
Dkt. 89, and a memorandum of law in support, Dkt. 89-1
(“Mt. Sinai Mem.”). The same day, the HSS Defendants filed
a motion to dismiss, Dkt. 93, and a memorandum of law in
support, Dkt. 97 (“HSS Mem.”). On August 18, 2020, the
Municipal Defendants filed a motion to dismiss, Dkt. 99,
along with a memorandum of law in support, Dkt. 101 (“City
Mem.”), and the declaration of Thais. R. Ridgeway, Esq., with
supporting exhibits.
On August 19, 2020, the Court issued an order directing
plaintiffs either to amend their complaint or oppose the
pending motions to dismiss, and noting that no further
opportunities to amend would be given. Dkt. 102. On
September 16, 2020, the Court granted the Municipal
Defendants’ request that their motion also apply to the claims
against Commissioner Hansell, who had not been served at
the time they filed their motion. Dkt. 110. On September
23, 2020, the Weill Cornell defendants filed a motion to
dismiss, Dkt. 112, and a memorandum of law in support, Dkt.
114 (“Weill Cornell Mem.”). The same day, the Court again
notified plaintiffs of their right to amend and stated that no
further opportunities to do so would ordinarily be granted.
Dkt. 115.
*7 On November 13, 2020, plaintiffs opposed the motions
to dismiss. Dkt. 123 (“Pl. Opp'n”), and filed the declaration of
Robert Del Col, Dkt. 123-1 (“Del Col Decl.”), and exhibits.
On December 10, 2020, the HSS Defendants and Weill
Cornell Defendants replied. Dkts. 126 (“HSS Reply”), 129
(“Weill Cornell Reply”). On December 29, 2020, the Mt.
Sinai defendants replied. Dkt. 133 (“Mt. Sinai Reply”). On
January 13, 2020, the Municipal Defendants replied, Dkt. 136
(“City Reply”).
II. Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint is properly dismissed where, as a
matter of law, “the allegations in a complaint, however true,
could not raise a claim of entitlement to relief.” Twombly, 550
U.S. at 558. When resolving a motion to dismiss, the Court
must assume all well-pleaded facts to be true, “drawing all
reasonable inferences in favor of the plaintiff.” Koch, 699
F.3d at 145. That tenet, however, does not apply to legal
conclusions. See Iqbal, 556 U.S. at 678. Pleadings that offer
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only “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S.
at 555.
III. Discussion
Plaintiffs—the parents and their minor daughters—claim
here that ACS's child-removal action, and the reports of
child abuse by the Medical Defendants that prompted it,
resulted from an elaborate conspiracy between all named
defendants to deprive plaintiffs of their constitutional rights.
The Medical Defendants, they allege, sought to cover up
Weill Cornell's failure to diagnose A.K.’s femur fracture by
concocting spurious reports of child abuse that shifted blame
away from Weill Cornell. And ACS, they allege, relying
on those false reports and lacking probable cause, launched
removal proceedings that it was ultimately forced to abandon,
in retaliation for the parents’ litigiousness and hostility toward
ACS's caseworkers. The result, they allege, was a nine-month
ordeal in which the parents were forcibly separated from
their newborn twin daughters and, once reunited, subjected to
unjustified restrictions on their association with them.
Based on this version of events, plaintiffs bring three sets
of federal claims: under § 1983, for malicious prosecution,
abuse of process, conspiracy, intentional deprivation of
constitutional rights, and false imprisonment, against all
defendants; under § 1985, for conspiracy, against all
defendants; and for the deprivation of constitutional rights
against the City of New York, based on, inter alia, an
alleged custom and practice of commencing child-removal
proceedings without probable cause, actionable under Monell
v. Department of Social Services of City of New York, 436
U.S. 658 (1978). 8 Plaintiffs also bring state-law claims for
malicious prosecution, abuse of process, loss of consortium
and companionship, and IIED, against all defendants; for
medical malpractice against the Weill Cornell Defendants and
Dr. Ranade; and for defamation against Dr. Platt, Dr. Ranade,
and Glass.
8 Confusingly, plaintiffs purport to bring a Monell
claim against all defendants. The Monell doctrine,
however, relates uniquely to § 1983 claims against
municipal entities.
*8 In response, the Medical Defendants, across three
separate motions to dismiss, argue that the Amended
Complaint does not plausibly allege either that they are
state actors or that they conspired with any state actor, and
so they cannot be sued under § 1983. They also argue
that, even if state actors, they are immune to liability for
reporting suspected child abuse in their roles as mandatory
reporters of such abuse. Finally, they contend that plaintiffs
fail to plausibly allege the elements of any of their causes of
action. The Municipal Defendants, too, urge dismissal of all
claims against them. 9 First, they assert that several defendant
entities are not proper parties to this action. Second, they
argue that none of plaintiffs’ causes of action states a claim.
9 With a narrow exception, these defendants do not
argue that they are entitled to qualified immunity.
Their opening brief cursorily referenced such a
defense, solely as to plaintiffs’ conspiracy claims,
but this argument was not developed until their
reply—and, even then, only in a single paragraph.
See City Mem. at 19; City Reply at 6. “It is well
established, of course, that arguments first raised
in reply briefs are forfeited or waived.” Chevron
Corp. v. Donziger, 325 F. Supp. 3d 371, 379
(S.D.N.Y. 2018). And qualified immunity provides
an affirmative defense, as to which defendants have
the burden of proof. Se McKenna v. Wright, 386
F.3d 432, 434 (2d Cir. 2004). The Court thus will
not consider these arguments on the present motion
to dismiss.
The Court first addresses whether plaintiffs have improperly
sued certain non-suable entities. Then, the Court considers
plaintiffs’ federal claims under §§ 1983 and 1985. Finally, the
Court addresses plaintiffs’ state-law claims.
A. Proper Parties
The Municipal Defendants first argue that plaintiffs’ claims
against ACS, the New York Comptroller, and the Division of
Child Protection must be dismissed because, by statute, they
are not suable entities. That is correct. See N.Y. City Charter,
Ch. 17 § 396 (“All actions and proceedings for the recovery
of penalties for the violation of any law shall be brought in the
name of the city of New York and not in that of any agency,
except where otherwise provided by law.”); Graham v. City of
New York, 869 F. Supp. 2d 337, 348 (E.D.N.Y. 2012) (“ACS
is an agency of the City of New York and cannot be sued
independently.”); Emerson v. City of New York, 740 F. Supp.
2d 385, 395–96 (S.D.N.Y. 2010) (same). Plaintiffs are silent
in the face of this motion. See Romeo & Juliette Laser Hair
Removal, Inc. v. Assara I LLC, No. 08 Civ. 442 (TPG), 2014
WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion
to dismiss stage, where review is limited to the pleadings, a
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plaintiff abandons a claim by failing to address the defendant's
arguments in support of dismissing that claim.”).
Accordingly, the Court dismisses ACS, the New York
Comptroller, and the Division of Child Protection. 10
10 The latter entity, the Division of Child Protection,
is named (although not discussed) in the Amended
Complaint. Plaintiffs appear not to have served
that entity, despite the Court's having several
times extended the deadline to effect service,
see Dkts. 106, 119, which has now passed. This
independently warrants its dismissal. See Fed. R.
Civ. P. 4(m); Zapata v. City of New York, 502
F.3d 192, 197 (2d Cir. 2007) (dismissal under
Rule 4(m) appropriate even where plaintiff would
be time-barred from bringing renewed action).
Contemporaneous with this decision, the Court is
issuing an order as to plaintiffs’ claims against
other non-served defendants.
B. Federal Claims
1. State Action
At the threshold, each group of Medical Defendants argues
that they cannot be liable under § 1983 because they are
not state actors. See Mt. Sinai Mem. at 5–9; HSS Mem. at
11–15; Weill Cornell Mem. at 8–12. Plaintiffs concede that,
as a matter of law, the mere reporting of a crime or child
abuse to the authorities does not typically rise to the level of
state action. But, they argue, the Medical Defendants went
beyond reporting, and became active participants in ACS's
child-removal proceedings, so as to make them state actors
subject to liability under § 1983. On this issue, the Court holds
with the Medical Defendants.
*9 “An essential element of a § 1983 claim is that the
defendant act under color of state law.” Mortimer v. City of
New York, No. 15 Civ. 7186 (KPF), 2018 WL 1605982, at
*12 (S.D.N.Y. Mar. 29, 2018). Section 1983 thus generally
applies to public officers, not private citizens. However, in
certain circumstances, private actors can be considered to
have acted “under color of state law.” See Ciambriello v.
County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). For
purposes of § 1983,
the actions of a nominally private entity are attributable
to the state when: (1) the entity acts pursuant to the
“coercive power” of the state or is “controlled” by the
state (“the compulsion test”); (2) when the state provides
“significant encouragement” to the entity, the entity is a
“willful participant in joint activity with the [s]tate,” or
the entity's functions are “entwined” with state policies
(“the joint action test” or “close nexus test”); or (3) when
the entity “has been delegated a public function by the
[s]tate” (“the public function test”).
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d
255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001));
see Ciambriello, 292 F.3d at 324 (“[A] private actor acts
under color of state law when the private actor ‘is a willful
participant in joint activity with the state or its agents.’
” (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152
(1970))).
With near uniformity, courts in this Circuit have applied these
principles to hold that “reporting suspected child abuse alone
does not constitute state action.” J.C. v. Mark Country Day
Sch., No. 03 Civ. 1414 (DLI) (WDW), 2007 WL 201163, at
*3 (E.D.N.Y. Jan. 23, 2007) (collecting cases); Topolski v.
Wrobleski, No. 13 Civ. 872 (LEK), 2013 WL 5652724, at *1–
3 (N.D.N.Y. Oct. 16, 2013) (allegations that private actors
falsely reported child abuse in effort to commence child-
removal proceedings insufficient to plead state-actor status);
Ogunbayo v. Montego Med. Consulting P.C., No. 11 Civ. 4047
(NGG) (CLP), 2012 WL 6621290, at *12 (E.D.N.Y. Sept.
18, 2012) (report of suspected child abuse not state action
where no allegation that “ACS influenced the substance of the
medical defendants’ evaluation”), adopted as modified, 2012
WL 6625921 (E.D.N.Y. Dec. 19, 2012); Mione v. McGrath,
435 F. Supp. 2d 266, 272 (S.D.N.Y. 2006) (hotel employees
who reported suspected child abuse to authorities, leading
to initiation of neglect proceedings, not state actors under §
1983); Storck v. Suffolk Cnty. Dep't of Soc. Servs., 62 F. Supp.
2d 927, 941 (E.D.N.Y. 1999) (doctors who “reported their
suspicions of child abuse pursuant to a state statute” not state
actors); Deckon v. Chidebere, No. 93 Civ. 7965 (LMM), 1995
WL 555684, at *4 (S.D.N.Y. Sept. 19, 1995), aff'd, 101 F.3d
1393 (2d Cir. 1996); cf. Est. of Keenan v. Hoffman-Rosenfeld,
No. 16 Civ. 0149 (SFJ) (AYS), 2019 WL 3410006, at *19
(E.D.N.Y. July 29, 2019) (holding, at summary judgment, that
hospital defendants were not state actors where they allegedly
“ ‘conspired with each other to advance a false narrative and
took advantage of the plainly incompetent [Child Protective
Services] workers’ to cause the Protective Proceedings to be
brought against the Parents”), aff'd, 833 F. App'x 489 (2d Cir.
2020); Estiverne v. Esternio-Jenssen (“Estiverne III”), 910 F.
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Supp. 2d 434, 444 (E.D.N.Y. 2012) (holding, after trial, doctor
not state actor where she did not “play[ ] any role—other
than to provide her medical opinion—in the decision to file
a petition for removal”).
*10 The Medical Defendants argue that they similarly were
private actors who simply reported suspected abuse to ACS.
Plaintiffs respond that the facts alleged show the Medical
Defendants to have gone beyond their role as mandatory
reporters and “exert[ed] undue influence to obtain a desired
outcome.” Pl. Opp'n at 24. They rely on the following
allegations. First, Dr. Ranade had x-rays of A.K.’s clavicle
taken on August 13, 2018, at the follow-up visit during which
she contacted ACS, after admitting A.K. to the E.R. for the
ostensible purpose of taking genetic tests. Am. Compl. ¶
59. Second, Glass, Dr. Fabricant, Dr. Lupica, and Dr. Platt
engaged in discussions over email that ostensibly reflect a
conspiracy to falsely report child abuse to ACS. In that thread,
Dr. Fabricant first wrote to Dr. Platt to notify her that Weill
Cornell appeared to have failed to diagnose A.K.’s broken
femur and to ask if that failing was indicative of any “systems
issue” that could be remedied. Id. ¶ 70. Dr. Platt responded
that “it was a definite miss” and that she had “educated” Dr.
Lupica. Id. ¶ 71. Then, however, Dr. Lupica responded to Dr.
Platt (in a response that Dr. Platt forwarded to Dr. Fabricant
and Glass) that she did not believe A.K. had had those injuries
when she saw “him,” and that she now suspected abuse. Id.
¶¶ 72–75. Apparently believing Dr. Lupica's story, the others
then agreed that she should report to ACS; then, she and others
did so. Id. ¶¶ 77–81. Third, without supporting allegations,
plaintiffs contend that Dr. Fabricant, Dr. Ranade, and Dr.
Lupica met with ACS on August 30, 2018, to “press the case
for [A.K.] and [M.K.] to be removed from their parents’ care,”
and that ACS filed its removal petition the same day. Id. ¶
83. Last, they state that on September 10, 2018, Dr. Ranade
falsely reported the parents for bringing A.K. to see her alone,
and on October 4, 2018, took unauthorized investigatory x-
rays. Id. ¶¶ 120–25.
These allegations do not make any of the Medical Defendants
state actors.
As to Dr. Fabricant, Dr. Platt, and Glass, the Amended
Complaint does not allege more than that they, apparently
believing Dr. Lupica's story, decided it was appropriate to
report the suspected abuse to ACS, as required under N.Y.
Soc. Serv. Law § 413. In fact, the Amended Complaint largely
depicts Dr. Fabricant and Dr. Platt as open to recognizing,
and addressing, Weill Cornell's lapse in failing to diagnose
A.K.’s fracture. See, e.g., Am. Compl. ¶¶ 70–71. Glass merely
reported to ACS, see id. ¶ 79, and Dr. Platt does not even
appear to have done that much. And Fabricant's meeting with
ACS—along with Dr. Lupica and Dr. Ranade—on August 30,
2018, which is described only in vague terms in the Amended
Complaint, as alleged did not entail more than furnishing ACS
with a medical assessment based on his observations of A.K.
and the parents. See id. ¶ 83. Fabricant is not alleged to have
urged ACS to take specific action. The Amended Complaint
states that, at that meeting, Fabricant “press[ed] the case” for
removal, but that conclusory allegation is unsupported by any
concrete facts. It cannot be relied upon for purposes of this
motion. Id.
The allegations about Dr. Lupica, taken as true, are of a
different character. She is alleged to have lied about A.K.’s
condition at the time she examined A.K. on August 8, 2018,
with the goal of shifting attention from her errant diagnosis,
and the consequence of giving the false diagnosis of a later
act of child abuse. According to the Amended Complaint,
Dr. Lupica's statement that A.K. could not possibly have had
a femur fracture when she saw her on August 8, 2018, was
deliberately false. See id. ¶ 75. Although some allegations as
to this act are conclusory, see, e.g., id. (“This was a slanderous
fiction made up by Defendant Lupica”), the overall facts
alleged as to this point are concrete enough to make the
parents’ claim of such a falsehood plausible. For example,
the Amended Complaint alleges that, despite only seeing
A.K. for five minutes on August 8, 2018, Dr. Lupica later
falsely reported spending four hours with her. Id. ¶ 74. And
although A.K. is female, Dr. Lupica stated that she watched
“him” for that entire four-hour period, calling into doubt her
claim of such a long, or of an attentive, observation. Id.
Moreover, the circumstances of the email exchange—that Dr.
Lupica's superior, Dr. Platt, had emailed her to “educate” her
as to her significant “miss”—provides a plausible motive for
Dr. Lupica to dissemble: to cover up her own malpractice.
Claiming that A.K.’s femur had not been broken when she
examined the child deflected blame and changed the narrative
from a faulty diagnosis to a later act of child abuse. See, e.g.,
id. ¶ 75. The Amended Complaint's allegation is thus well-
pled that Dr. Lupica falsely claimed that A.K.’s injuries were
not present when she examined her on August 8, 2018, and
that the parents’ account of how such injuries occurred was
inconsistent with her diagnosis.
*11 But this falsehood, while exposing Dr. Lupica to
potential liability under state law, see infra pp. 46–47,
does not make her a state actor under § 1983. See, e.g.,
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Moreno v. Town of Greenburgh, No. 13 Civ. 7101 (VB),
2014 WL 3887210, at *3 (S.D.N.Y. June 9, 2014) (no
state action where defendant provides “false and misleading”
information to prosecutors “even if the information provided
is deliberately false”); Rodriguez v. Winski, 973 F. Supp. 2d
411, 429 (S.D.N.Y. 2013) (“[E]ven assuming that [defendant]
had deliberately provided false information to police, such
provision alone is not sufficient” to make him a state actor);
Vazquez v. Combs, No. 04 Civ. 4189 (GEL), 2004 WL
2404224, at *4 (S.D.N.Y. Oct. 22, 2004) (“But merely filing
a complaint with the police, reporting a crime, requesting
criminal investigation of a person, or seeking a restraining
order, even if the complaint or report is deliberately false,
does not give rise to a claim against the complainant for
a civil rights violation.” (emphasis added)). Rather, “one's
motivation is irrelevant to the determination of whether one is
a state actor.” Shapiro v. Goldman, No. 14 Civ. 10119 (NRB),
2016 WL 4371741, at *11 (S.D.N.Y. Aug. 15, 2016) (quoting
Young v. Suffolk County, 705 F. Supp. 2d 183, 196 (E.D.N.Y.
2010)). Indeed, in a similar context, a court in this District
has held that doctor not a state actor under § 1983 even
though he had been hired by ACS in connection with a neglect
proceeding and “knowingly provided false information to
ACS.” Emanuel v. Griffin (“Emanuel I”), No. 13 Civ. 1806
(JMF), 2013 WL 5477505, at *5–6, 7 (S.D.N.Y. Oct. 2, 2013).
Thus, even taking as true plaintiffs’ allegation that Dr. Lupica
scurrilously lied about A.K.’s injuries to cover up her failure
to diagnose A.K.’s broken femur, that does not show that she
acted under color of state law.
Finally, as to Dr. Ranade, plaintiffs argue that her reporting
of suspected abuse or neglect, taking of x-rays, and follow-
up reports to ACS make her a state actor because she
became “part of the reporting and enforcement machinery”
of the state. See Pl. Opp'n at 24 (quoting Estiverne v.
Esternio-Jenssen (“Estiverne II”), 833 F. Supp. 2d 356,
367–68 (E.D.N.Y. 2011)). For the reasons above, Dr.
Ranade's reporting, both before and after August 13, 2018,
does not make her a state actor. That is so even though
she had multiple contacts with ACS. See, e.g., Est. of
Keenan, 2019 WL 3410006, at *19 (“Additional input and
updates from the Northwell Defendants as CPS's source for
medical information regarding Lana's case, which presented a
dynamic situation, does not morph the Northwell Defendants
from private actors into persons or entities acting under color
of state law[.]”). As to Dr. Ranade's admission of A.K. to the
E.R. on August 13, 2018, courts have recognized that private
medical entities’ detention of children, for the purposes of
conducting abuse investigations, can sometimes amount to
state action. See, e.g., Kia P. v. McIntyre, 235 F.3d 749, 756–
57 (2d Cir. 2000) (finding state action based on hospital's
“discrete and distinguishable role in the complex relationship
among the State, the parent and the child in determining the
safety and propriety of releasing [a child] to the care of her
mother”); J.C., 2007 WL 201163, at *2–3 (discussing Kia P.
and finding no state action where school reported suspected
abuse, but did not detain child). But plaintiffs’ § 1983 claims
do not focus on A.K.’s brief, August 13, 2018 stay at Mt. Sinai
pending ACS's investigation. And even were Dr. Ranade
considered a state actor with respect to that isolated incident,
that would not convert her other actions—including making
reports to ACS—into state action. See Kia P., 235 F.3d at 757
(hospital was state actor only as to period where it lacked
medical reason for detaining child). Finally, that Dr. Ranade
took unauthorized x-rays on October 4, 2018, allegedly to
check for “healing fractures,” does not make her a state actor.
See Am. Compl. ¶ 125. Plaintiffs do not plead that Dr. Ranade
ever reported the results of those x-rays to ACS, or that they
had anything to do with the removal proceedings that, by then,
had been pending for several months.
Nor does the Amended Complaint plausibly allege that the
Medical Defendants participated in a § 1983 conspiracy with
ACS. See Ciambriello, 292 F.3d at 324–25 (private actors
may be liable under § 1983 where plaintiffs show “(1) an
agreement between a state actor and a private party; (2) to
act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages”).
Plaintiffs rely on the email thread between Glass and Drs.
Fabricant, Platt, and Lupica to establish this conspiracy.
See Pl. Opp'n at 12–14 (discussing Am. Compl. ¶¶ 69–
82). But even assuming those communications established
an agreement between those individuals to act unlawfully—
rather than a conversation in which others were persuaded
in good faith by Dr. Lupica's allegedly false claim that her
original diagnosis had been correct—plaintiffs do not allege
that ACS participated in that discussion. The principal alleged
communications between ACS and the Medical Defendants
were: (1) the reports of suspected child abuse reviewed above;
and (2) the August 30, 2018 meeting between Lawson at ACS
and Drs. Ranade, Fabricant, and Lupica. As to the former,
such reporting cannot establish a § 1983 conspiracy, even if
the reporting were false. See, e.g., Rodriguez, 973 F. Supp. 2d
at 429 (“[E]ven assuming that Mr. Morrissey had deliberately
provided false information to police, such provision alone is
not sufficient to form the basis of a conspiracy claim.”). As to
the latter, the Amended Complaint lacks concrete allegations,
beyond the fact of this meeting, to show an agreement
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between those defendants at any point. Its allegations on
this point are conclusory. See Am. Compl. ¶ 114 (“Plaintiffs
allege that Defendant Lawson was complicit in the ‘Weill
Cornell/Ranade/HSS conspiracy’ ” (emphasis removed)). In
fact, the only concretely pled communication from ACS to
any private defendant is ACS's report to Glass that “there was
no reason to remove [A.K.] ... as the [Parents’] story was
consistent with injuries as reported by Mt. Sinai.” Id. ¶ 77.
Instead, the Amended Complaint alleges that, after receiving
additional reports of suspected child abuse, and meeting
with the reporting doctors, ACS independently decided to
commence removal proceedings. 11 That ACS did so after
receiving those reports, even if those reports were false, does
not plausibly suggest any conspiracy.
11 In opposition, plaintiffs rely on a single case. See
Pl. Opp'n at 17–19 (discussing Estiverne II, 833
F. Supp. 2d at 356–57). But it is far afield. There,
plaintiffs sought to hold a single doctor—the head
of a hospital's “child protective services team”—
liable under § 1983 because she had been “the
driving force behind ACS's decision to initiate
removal proceedings.” Estiverne II, 833 F. Supp.
2d at 369–70. The supporting evidence was that
the doctor had “recommended removal of [the
child], that she diagnosed [the child's] injuries as
consistent with being ‘grabbed and shaken,’ that if
she had not made such a diagnosis, Infant Plaintiffs
would not have been removed from their home, that
ACS always follows the recommendations of [this
doctor], and, perhaps most importantly, that ACS
made the decision to file a petition ‘in unison’ with
[the doctor] and the [hospital's] Child Protection
Team.” Id. at 369. Here, plaintiffs do not allege,
except conclusorily, that any Medical Defendant
recommended removal, that ACS “always,” or
has ever, followed any of their recommendations,
or that—aside from the meeting on August 30,
2018—ACS decided to file a removal petition “in
unison” with them. In fact, the Amended Complaint
alleges that ACS, far from being driven by any
Medical Defendant, had a preexisting motive to
seek the children's removal. See Am. Compl. ¶¶
110–15. And the removal petition belies that any
Medical Defendant urged removal. See Petition at
6–7 (basing removal petition solely on medical
assessments by Medical Defendants); see also
Estiverne III, 910 F. Supp. 2d at 444 (finding, after
trial, doctor not a state actor because ACS, not she,
decided to petition for removal and doctor provided
only medical opinion). Estiverne is thus inapposite.
*12 Accordingly, the Amended Complaint does not
plausibly allege any Medical Defendant to have been a state
actor. The Court thus dismisses the § 1983 claims against
these defendants. 12 The Court next turns to plaintiffs’ federal
claims against persons and entities which undisputedly were
state actors.
12 Inexplicably, the Amended Complaint also names
Dr. Shaykh as a defendant in all six federal
claims, even though its only allegation is that
he, like Dr. Lupica, failed to diagnose A.K.’s
femur fracture. See Am. Compl. ¶¶ 36, 287–
301. There is no allegation that Dr. Shaykh ever
spoke with anyone at ACS, had any contact
with any government official, or took any action
conceivably supporting § 1983 liability of any kind.
The § 1983 claims against him are also therefore
dismissed. The Amended Complaint's grapeshot
approach—casting wide claims of illegality well
beyond what the facts could remotely bear, as
exemplified by the senseless inclusion of Dr.
Shaykh as a § 1983 defendant—is regrettable. The
Court expects more responsible lawyering as the
case moves forward.
2. Malicious Prosecution
To prevail on a § 1983 claim for malicious prosecution, “a
plaintiff must show a violation of his rights under the Fourth
Amendment, and must establish the elements of a malicious
prosecution claim under state law.” Manganiello v. City of
New York, 612 F.3d 149, 160–61 (2d Cir. 2010) (citations
omitted). “To establish a malicious prosecution claim under
New York law, a plaintiff must prove (1) the initiation or
continuation of a criminal proceeding against plaintiff; (2)
termination of the proceeding in plaintiff's favor; (3) lack
of probable cause for commencing the proceeding; and (4)
actual malice as a motivation for defendant's actions.” Stampf
v. Long Island R.R., 761 F.3d 192, 198 (2d Cir. 2014) (quoting
Manganiello, 612 F.3d at 161). Under § 1983, state “tort
law serves only as a source of persuasive authority rather
than binding precedent in defining these elements.” Lanning
v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018). A
plaintiff must also show “a seizure or other perversion of
proper legal procedures implicating [his] personal liberty and
privacy interests under the Fourth Amendment.” Id. at 24
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(quoting Washington v. County of Rockland, 373 F.3d 310,
316 (2d Cir. 2004)).
a. Civil vs. Criminal Proceedings
Most commonly, a claim for malicious prosecution arises
from a criminal proceeding. The HSS Defendants thus argue
that plaintiffs do not state a claim, because the family court
proceeding was civil and plaintiffs have not pled “special
damages.” See HSS Mem. at 19. The Second Circuit has
stated, however, that “our case law does not forbid a §
1983 malicious prosecution claim premised on a civil or
administrative proceeding.” Washington, 373 F.3d at 317.
To bring a malicious prosecution claim arising from a civil
action in general, a plaintiff must make “a showing of some
interference with plaintiff's person or property ... by the use of
such provisional remedies as arrest, attachment, replevin or
injunction, ... or other burden imposed on plaintiff beyond the
ordinary burden of defending a law suit.” McCaul v. Ardsley
Union Free Sch. Dist., No. 11 Civ. 5586 (VB), 2012 WL
1898897, at *3 (S.D.N.Y. May 3, 2012), aff'd, 514 F. App'x 1,
4 (2d Cir. 2013) (summary order). Relevant here, the Circuit
has noted “that the law in our Circuit is unsettled as to whether
child removal proceedings can give rise to a federal claim
for malicious prosecution of a parent.” Walker v. City of New
York, 621 F. App'x 74, 76 (2d Cir. 2015) (summary order);
see also McCaul, 514 F. App'x at 4–5 (discussing without
resolving whether neglect proceeding could give rise to a
malicious prosecution claim).
*13 Absent definitive Circuit guidance, the weight of
authority suggests that the removal of a child from her parents,
via civil family court proceedings, implicates sufficient
constitutional interests to support a malicious prosecution
claim. See, e.g., Cornejo v. Bell, No. 04 Civ. 341 (BMC),
2008 WL 5743934, at *12 (E.D.N.Y. May 19, 2008)
(“[T]he removal of Cornejo's son is sufficient to meet that
threshold.”), aff'd, 592 F.3d 121 (2d Cir. 2010); Providencia
V. v. Schutlze, No. 02 Civ. 9616 (LTS), 2007 WL 1582996, at
*5 n.3 (S.D.N.Y. May 31, 2007) (“[T]he removal of Plaintiffs’
son is sufficient to meet the threshold for applicability
of this doctrine.”) (collecting cases); Yuan v. Rivera, 48
F. Supp. 2d 335, 349 (S.D.N.Y. 1999) (“[D]epriving Ms.
Chi of the custody of her children for several months
reaches this threshold.”). But see Walker v. City of New
York, 63 F. Supp. 3d 301, 317 n.12 (E.D.N.Y. 2014) (“It
is likely that no plaintiff in this action can even state a
claim for a malicious prosecution as the ‘Adult Plaintiffs
have not been seized, and Infant Plaintiffs have not been
prosecuted.’ ” (quoting Estiverne II, 833 F. Supp. 2d at
380)). Here, A.K. and M.K. were removed from their parents’
custody for more than a month, and the parents’ access to
their children was highly restricted for eight more months.
That impingement is substantial enough to support a claim
for malicious prosecution. Accordingly, the Court will not
dismiss plaintiffs’ § 1983 malicious prosecution claim solely
because it arises from a civil proceeding.
b. Initiation of Proceedings
The Municipal Defendants do not dispute that they initiated
proceedings against the parents. They briefly contend that
the Amended Complaint erroneously attributes prosecutorial
decision-making to Brenda Lawson. City Mem. at 12;
City Reply at 9–10. But “individuals other than the agent
who actually prosecutes the action can be held liable for
malicious prosecution.” Emanuel I, 2013 WL 5477505, at *7.
Such liability can exist when the non-prosecuting individual
“played an active role in the prosecution, such as giving
advice and encouragement or importuning the authorities to
act.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 217 (2d
Cir. 2000) (citation omitted). Here, the Amended Complaint
plausibly alleges that Lawson recommended removal and
caused the removal action to be commenced. See, e.g., Am.
Compl. ¶¶ 101–02, 110–14. Thus, plaintiffs have plausibly
pled that she, and potentially other ACS caseworkers, were
among those who initiated the proceedings.
c. Favorable Termination
Under § 1983, unlike New York law, “[p]roceedings are
‘terminated in favor of the accused’ only when their final
disposition is such as to indicate the accused is not guilty.”
Lanning, 908 F.3d at 26 (quoting Singleton v. City of New
York, 632 F.2d 185, 193 (2d Cir. 1980)). “A termination is
not favorable to the accused ... if the charge is withdrawn or
the prosecution abandoned pursuant to a compromise with the
accused.” Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir.
2004) (citation omitted).
The Municipal Defendants argue that, because ACS withdrew
its petition and the parents consented to that withdrawal, the
action was “abandoned pursuant to a compromise,” leaving
the guilt or innocence undetermined. City Mem. at 9 (citing
Rothstein, 373 F.3d at 286). In their reply, they also argue
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that ACS's withdrawal was in the “interest of justice,” and
so cannot qualify as favorable termination. See Lanning, 908
F.3d at 28–29 (“[W]here a dismissal in the interest of justice
‘leaves the question of guilt or innocence unanswered[,] ...
it cannot provide the favorable termination required as the
basis for [that] claim.” (quoting Hygh v. Jacobs, 961 F.2d 359,
367–68 (2d Cir. 1992)); see Singer v. Fulton Cnty. Sheriff, 63
F.3d 110, 118 (2d Cir. 1995). Plaintiffs respond that, as pled,
there was no compromise, and that ACS withdrew its petition
because it lacked evidence of liability. The Court holds with
plaintiffs.
First, neither the Amended Complaint nor the cognizable
records of the family court proceedings reflect any
compromise on plaintiffs’ part. Rather, as pled, after plaintiffs
produced evidence of their innocence of child abuse, see
Am. Compl. ¶¶ 136–41, and moved for summary judgment,
id. ¶ 172, and after ACS's own expert concluded that the
facts on which the removal petition had been based could
not be confirmed, id. ¶¶ 174–75, ACS moved to withdraw its
case against the parents, with prejudice, id. ¶ 176; see Del
Col Decl., Ex. 2 (“Withdrawal Tr.”) at 2–3. In that context,
plaintiffs’ consent to ACS's dismissal does not bespeak a
lack of favorable termination. As pled, plaintiffs could not
have received a more favorable resolution. In fact, at the
hearing on ACS's petition to withdraw its removal action,
its lawyer embraced ACS's experts’ conclusion as meriting
dismissal. Withdrawal Tr. at 3 (“When we filed this petition
we do believe that we had a basis to file, but based on the
medical report that was provided to counsel and Your Honor's
Court Attorney yesterday, we were able to speak with our
independent expert. And after she reviewed all documents
we, at this time, do believe that it would be—[t]hat we are
asking to withdraw the petition.”). These statements show, “in
so many words,” that plaintiffs were entitled to a dismissal on
the merits—not that the withdrawal reflected a compromise
or settlement. McKenzie v. City of New York, No. 17 Civ. 4899
(PAE), 2019 WL 3288267, at *14 (S.D.N.Y. July 22, 2019);
see Mortimer v. Wilson, No. 15 Civ. 7186 (KPF), 2020 WL
3791892, at *11 (S.D.N.Y. July 7, 2020) (denying summary
judgment to defense where “the dismissal was because the
prosecution determined that it would not be able to prove that
C.S. was guilty of the charged crimes”).
*14 Second, the Municipal Defendants rely on Lanning
to suggest that a “dismissal in the interest of justice ...
preclude[s] a finding that the neglect proceeding was
‘terminated in Plaintiffs’ favor.’ ” City Reply at 3. But that
case is distinct. It involved a procedural dismissal “in the
interest of justice” under N.Y. Crim. Proc. Law § 170.40,
which does not apply here. See Lanning, 908 F.3d at 23.
And although the Municipal Defendants depict plaintiffs as
claiming the family court action was dismissed in the “interest
of justice,” City Reply at 2–3, plaintiffs have not so stated,
here or in the cognizable family court records. See Withdrawal
Tr.; Dkt. 100-21 (“Order of Dismissal”). More fundamentally,
Lanning declined to find a favorable termination not only
because the dismissal arose under section 170.40, but also
because, as to some claims, jurisdiction lacked, and as to
others, the state court stated that the dismissals were “
‘neither an acquittal of the charges nor any determination
of the merits,’ but rather ‘le[ft] a question of guilt or
innocence unanswered.’ ” 908 F.3d at 28. Here, in contrast,
the circumstances of ACS's withdrawal reflect plaintiffs’
innocence.
d. Probable Cause
The Municipal Defendants next argue that the existence of
probable cause to commence the removal proceeding, and the
family court's initial grant of a temporary order of protection
removing A.K. and M.K. from the parents’ custody, defeats
plaintiffs’ malicious-prosecution claim. Plaintiffs counter that
both decisions—ACS's to begin removal proceedings, and
the family court's to grant an order of protection—rested
on falsehoods, without which there was not probable cause.
Although the question is close, plaintiffs are correct that, on
the standards governing a motion to dismiss, the facts do not
establish probable cause.
“[T]he existence of probable cause is a complete defense to a
claim of malicious prosecution in New York.” Savino v. City
of New York, 331 F.3d 63, 72 (2d Cir. 2003). “In the context
of a malicious prosecution claim, probable cause under New
York law is ‘the knowledge of facts, actual or apparent, strong
enough to justify a reasonable man in the belief that he has
lawful grounds for prosecuting the defendant in the manner
complained of.’ ” Rounseville v. Zahl, 13 F.3d 625, 629 (2d
Cir. 1994) (citation omitted). “It is a more exacting standard
than the standard required to support an arrest.” Emanuel
v. Griffin (“Emanuel II”), No. 13 Civ. 1806 (JMF), 2015
WL 1379007, at *8 (S.D.N.Y. Mar. 25, 2015). However,
“[b]ecause obviously less in the way of grounds for belief
will be required to justify a reasonable [person] in bringing a
civil rather than a criminal suit, when the underlying action
is civil in nature[,] the want of probable cause must be
patent.” Emanuel I, 2013 WL5477505, at *8 (quoting Fink
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v. Shawangunk Conservancy, Inc., 15 A.D.3d 754, 790 (3d
Dep't 2005)).
“[T]he issuance of a temporary injunction or similar judicial
recognition of the merit of the underlying case creates a
presumption of probable cause and places upon the plaintiff
the burden of pleading facts sufficient to overcome it.”
Emanuel II, 2015 WL 1379007, at *9 (quoting Butler v.
Ratner, 210 A.D.2d 691, 693–94 (3d Dep't 1994)); see also
Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003)
(presumption of probable cause created in criminal case by
grand jury indictment). That presumption “is rebuttable, and
may be overcome by evidence establishing that the police
witnesses ‘have not made a complete and full statement
of facts ... [,] that they have misrepresented or falsified
evidence[,] ... or otherwise acted in bad faith.’ ” Boyd, 336
F.3d at 76 (quoting Colon v. City of New York, 60 N.Y.2d
78, 82–83 (1983)). But to succeed on a malicious prosecution
claim after an indictment or other judicial imprimatur, a
plaintiff “must establish that the indictment was produced by
fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith.” Id. (quoting Colon, 60
N.Y.2d at 83). In the context of child-removal proceedings
specifically, one court has held that the presumption of
probable cause arising from a removal order may be rebutted
where the petition for removal “was either intentionally
or recklessly false, as the result of defendants’ conduct.”
Estiverne II, 833 F. Supp. 2d at 379. In assessing probable
cause, courts “must consider those facts available to the
officer at the time of” her actions. Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006).
*15 The facts pled and otherwise cognizable here give the
Municipal Defendants a solid basis to argue that probable
cause existed. As of August 30, 2018, when ACS commenced
removal proceedings in family court, it had received two
reports of potential child abuse about A.K. As reflected in
the Petition, on August 13, 2018, Dr. Ranade had reported
that, along with a broken femur, A.K. “presented with injuries
to her collarbone,” which contradicted the parents’ account
of how A.K.’s injuries had occurred. Am. Compl. ¶ 105. In
addition, around August 30, 2018, Dr. Lupica reported to ACS
that, when she had seen A.K. on August 8, 2018, A.K. did
not have the femur fracture with which she was ultimately
diagnosed, and that, based on the Mt. Sinai and HSS x-rays,
she did not believe the injuries occurred in the manner or at
the time the parents had claimed. According to the Amended
Complaint, Glass and Dr. Fabricant had also contacted ACS
caseworkers with similar concerns. Id. ¶ 79. After receiving
these reports, on August 30, 2018, ACS commenced removal
proceedings. See Removal Order at 1–2. That ACS's petition
was granted by a family court judge after a hearing also gives
rise to a rebuttable presumption of probable cause. See, e.g.,
Boyd, 336 F.3d at 76; Emanuel II, 2015 WL 1379007, at *9.
Plaintiffs, however, have pled sufficient facts, at this
preliminary stage of the litigation, to rebut that presumption.
To do so, plaintiffs must show that the relevant government
officials have not made a complete statement of facts, have
misrepresented or falsified evidence, or have otherwise acted
in bad faith. Boyd, 336 F.3d at 76. A showing that defendants’
submissions to the family court were “intentionally or
recklessly false, as the result of defendants’ conduct,” can
meet this standard. Estiverne II, 833 F. Supp. 2d at 379.
Here, although the contrary outcome is entirely possible,
plaintiffs have plausibly pled that the Municipal Defendants,
in seeking the infants’ removal, included materially false
statements and were reckless in presenting information to
the family court. As plaintiffs emphasize, before August 30,
2018, although ACS did not reveal this to the court, no doctor
had diagnosed A.K. with a clavicle fracture. Dr. Ranade
had affirmatively disavowed a conclusive diagnosis of such
a fracture, and Dr. Grimm appears to have concluded that
A.K. did not even have a clavicle injury. See Am. Compl.
¶¶ 105 (Dr. Ranade told ACS that x-rays from August 13,
2018 were “inconclusive.”), ¶¶ 108–09 (Dr. Grimm stated
on August 14, 2018, that “[a] clavicle fracture has not been
confirmed by radiology and when I saw the baby, she lifted
both arms spontaneously,” and informed ACS's Lawson that
she reviewed the x-rays “and saw that both clavicles looked
the same.”). ACS's notes from August 14, 2018 confirm that
a positive diagnosis had not been made. See id. ¶ 105. Yet,
when ACS filed its removal petition on August 30, 2018, it
affirmatively claimed that the August 13, 2018 x-rays had
been “inclusive” of clavicle injuries. Id.; see also Petition at
7. Conceivably, that awkward locution as to this key point
could stem from a mere error in typing “inconclusive,” but
the Court cannot assume this on a motion to dismiss. In any
event, plaintiffs plead that, at the hearing on the petition, ACS
doubled down on this false claim and represented that A.K.
“does have a collarbone fracture,” that x-rays had “confirmed
the collarbone fracture,” and that “[m]ost medical doctor staff
were able to take x-rays and were able to see that there
was also a collarbone fracture.” Am. Compl. ¶ 106. Those
statements, as pled, were recklessly false, and had no basis in
the records or reports before ACS at the time.
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These falsehoods, as pled, were consequential. The Removal
Order expressly relied on that aspect of the Petition, citing
the presence of multiple unexplained injuries as the family
court's basis for granting the application. See Removal Order
at 1. And ACS's own expert, reviewing the same radiological
evidence nine months later, ultimately concluded that “no
clavicle fracture was identified,” proximately leading ACS
to withdraw its petition, with prejudice. Id. ¶¶ 175–76. To
be sure, discovery may well reveal that these were errors
made in good faith, or that evidence not now cognizable or
apparent buttressed ACS's claim, at the time, of a clavicle
fracture. 13 But on a motion to dismiss, the Court must draw
all inferences in plaintiffs’ favor. See Koch, 699 F.3d at
145. Given that standard, the Court cannot find as a matter
of law that the Municipal Defendants’ decision to initiate
removal proceedings, based in significant part on evidence
of a clavicle fracture impeached by the medical facts before
them, was supported by probable cause and in good faith. 14
13 It is possible, too, that, after discovery, the
Municipal Defendants will prove entitled to
qualified immunity. See, e.g., Cornejo v. Bell, 592
F.3d 121, 129 (2d Cir. 2010) (affirming grant
of qualified immunity to ACS caseworkers at
summary judgment); Walker, 621 F. App'x at 76.
They did not, however, move to dismiss on this
ground. And bad faith, if established, can offset
facts that might otherwise warrant a finding of
qualified immunity. See, e.g., Carossia v. City of
New York, 39 A.D.3d 429, 430 (1st Dep't 2007).
The Court accordingly does not consider this
question at the pleading stage.
14 Other challenges plaintiffs make to probable cause
fare less well. Most significant, they fault the
Municipal Defendants for bringing the removal
action in the face of Dr. Grimm's assessment that
there had not been child abuse. But Dr. Grimm's
assessment pre-dated reports of abuse to ACS,
including by Dr. Lupica and others, suggesting
the parents concealed the true nature and timing
of A.K.’s injury. Am. Compl. ¶¶ 64, 79–81, 105.
These later reports gave ACS sound reason to
reassess its (and Dr. Grimm's) conclusion. See Id.
¶¶ 61–67, 77 (noting that, before such reports, ACS
had concluded that “there was no reason to remove
[A.K.] ... as the [Parents’] story was consistent with
injuries as reported by Mt. Sinai”). And contrary to
the parents’ claim, ACS's decision not to cite Dr.
Grimm's opinion before the family court does not
mean that it “suppressed” exculpatory evidence.
Plaintiffs do not cite authority that, at any stage of
removal proceedings, ACS had a duty to set out for
the court all contrary opinions. On the contrary, the
Second Circuit has specifically rejected any duty of
ACS caseworkers to present exculpatory evidence
in family-court proceedings. See Cornejo v. Bell,
592 F.3d 121, 129 (2d Cir. 2010) (no constitutional
violation where “the heart of the complaint ... is
that [ACS] failed to adequately apprise the Family
Court of exculpatory information”). Plaintiffs also
overreach in claiming that ACS was wrong to rely
on Dr. Lupica's assessment, because it, as alleged,
was untrue. Unless the Municipal Defendants had
a basis to appreciate that Dr. Lupica's account
was false, they could consider it in determining
whether probable cause supported commencing
removal proceedings. See Simpson v. Town of
Warick Police Dep't, 159 F. Supp. 3d 419, 436–
37 (S.D.N.Y. 2016) (collecting cases); see also
Berry v. Marchinkowski, 137 F. Supp. 3d 495, 527
(S.D.N.Y. 2015) (“Even assuming the version of
facts set forth by Plaintiff, that Rose felt coerced
and gave false information, this alone does not
defeat probable cause to arrest.”).
e. Actual Malice
*16 Last, plaintiffs must allege that the defendants acted
with “actual malice.” Stampf, 761 F.3d at 198. That burden
is easily satisfied because, at the pleadings stage, “lack of
probable cause generally raises an inference of malice.”
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir.
1997); see Emanuel I, 2013 WL 5477505, at *7. Accordingly,
plaintiffs have pled each element of their claim for malicious
prosecution. 15
15 The Municipal Defendants have not moved
specifically as to any individual ACS employees,
instead arguing that plaintiffs’ claims fail across
the board. Thus, although it appears that plaintiffs
have pled this claim as to only some subset of those
defendants, the Court will not sua sponte dismiss
this claim as to the others.
3. Abuse of Process
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Plaintiffs also allege abuse of process. “In order to state a [§
1983] claim for abuse of process, a plaintiff must establish
that the defendants had an improper purpose in instigating
the action ... [and] that they aimed to achieve a collateral
purpose beyond or in addition to his criminal prosecution.”
Morales v. City of New York, 752 F.3d 234, 238 (2d Cir.
2014) (quoting Savino, 331 F.3d at 77). Thus, plaintiffs must
show that defendants: “(1) employ[ed] regularly issued legal
process to compel performance or forbearance of some act
(2) with intent to do harm without excuse of justification,
and (3) in order to obtain a collateral objective that is outside
the legitimate ends of the process.” Savino, 331 F.3d at 76
(citation omitted).
As with malicious prosecution, the existence of probable
cause is a complete defense to an abuse-of-process claim. See
Irish v. City of New York, No. 09 Civ. 5568 (RMB), 2010 WL
5065896, at *6 (S.D.N.Y. Dec. 6, 2010) (“[T]he presence of
probable cause negates a claim for abuse of process.” (quoting
Sforza v. City of New York, No. 07 Civ. 6122 (DLC), 2009
WL 857496, at *17 (S.D.N.Y. Mar. 31, 2009))). And the mere
presence of an improper motive in commencing or continuing
legal proceedings is insufficient to state a claim for abuse of
process; instead, plaintiffs must allege that defendants used
legal process to achieve a “collateral objective” outside the
aims of that process. See Savino, 331 F.3d at 77. Thus, “it is
not sufficient for a plaintiff to allege that the defendants were
seeking to retaliate against him by pursuing [a legal action].
Instead, he must claim that they aimed to achieve a collateral
purpose beyond or in addition to his criminal prosecution.”
Id.; see Brandon v. City of New York, 705 F. Supp. 2d 261, 275
(S.D.N.Y. 2010) (citing “extortion, blackmail, retribution, or
similar extraneous harmful goal” as examples of improper
collateral purposes).
In moving to dismiss, the Municipal Defendants argue
that they had probable cause to commence the removal
proceedings, that abuse-of-process claims cannot arise from
civil proceedings, and that plaintiffs have not alleged any
collateral objective on their part outside the legitimate ends
of the process. The first two arguments largely overlap with
arguments the Court has found unavailing in the context of
plaintiffs’ malicious prosecution claims. But the last, the lack
of a collateral objective, is unique to the abuse of process
claim. And plaintiffs have not responded to that argument. 16
By failing to do so, plaintiffs have abandoned that claim.
Romeo & Juliette, 2014 WL 4723299, at *7.
16 The only references to abuse of process in
plaintiffs’ opposition are in two footnotes, in
which plaintiffs state that this claim “implicate[s]
rights that [are] clearly established under the
Constitution” and that it is one of their state-law
claims. Pl. Opp'n at 16 n.6, 43 n.15.
*17 In any event, defendants are right that the Amended
Complaint pleads insufficient facts as to a collateral objective
on their part. The Amended Complaint alleges that all
defendants commenced the family court proceeding “to
insulate [defendants] from various levels of civil liability,”
to “deprive Plaintiffs of their fundamental constitutional
protections,” and to “financially harm them by draining
a substantial part of their personal resources, in order
to leverage and otherwise extract a plea/admission and
shield themselves from liability.” Am. Compl. ¶¶ 229–30.
The first of the theories does not sensibly apply to the
Municipal Defendants, who, far from deflecting civil liability,
exposed themselves to such liability (viz, this lawsuit)
by commencing proceedings. And none reach “beyond
and in addition to” the removal proceedings themselves.
See, e.g., Moritz v. Town of Warwick, No. 15 Civ. 5424
(NSR), 2016 WL 3248494, at*5 (S.D.N.Y. June 9, 2016)
(“Deprivation of liberty, embarrassment, inconvenience, and
legal expenses are direct, rather than collateral, consequences
of arrest that are insufficient to support a malicious abuse
of process claim.”). At best, plaintiffs insinuate improper
motives on the part of these defendants (e.g., retaliation
for the parents’ litigiousness). But “neither retaliation nor a
malicious motive ... is a sufficient collateral objective” to state
a claim for abuse of process. Peter L. Hoffman, Lotte, LLC v.
Town of Southampton, 523 F. App'x 770, 771 (2d Cir. 2013)
(summary order). Accordingly, the Court dismisses plaintiffs’
claim for abuse of process.
4. Conspiracy Under §§ 1983 and § 1985
a. Section 1983
To succeed on a § 1983 claim for conspiracy, a plaintiff must
allege: “(1) an agreement between two or more state actors or
between a state actor and a private entity; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). A “plaintiff must
provide some factual basis supporting a meeting of the minds,
such that defendants entered into an agreement, express or
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tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d
105, 110 (2d Cir. 2003) (citation omitted). “Allegations of
‘joint conduct’ are not sufficient.” Schoolcraft v. City of New
York, 103 F. Supp. 3d 465, 520 (S.D.N.Y. 2015). Further, a
“plaintiff alleging a § 1983 conspiracy must allege a predicate
violation of constitutional rights.” Norales v. Acevedo, No. 20
Civ. 2044 (DLC), 2021 WL 739111, at *10 (S.D.N.Y. Feb.
24, 2021). And “there is no conspiracy if the conspiratorial
conduct challenged is essentially a single act by a single
corporation acting exclusively through its own directors,
officers, and employees, each acting within the scope of his
employment.” Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.
1978).
As discussed above, plaintiffs have failed to plausibly allege
a conspiracy between any Medical Defendant and ACS. See
supra pp. 23–24. Nor, beyond conclusory allegations, do
plaintiffs plead a conspiracy within ACS, or with any other
state actors. The only alleged state participant in the supposed
conspiracy was Lawson, who could not have conspired with
herself. And, as stated, even had Lawson agreed with other
ACS employees, such could not support a § 1983 conspiracy.
See Herrmann, 576 F.2d at 459. Accordingly, the Court
dismisses plaintiffs’ claims of a § 1983 conspiracy against all
defendants.
b. Section 1985
To prevail on a conspiracy claim under § 1985, Plaintiffs must
show:
(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly,
any person or class of persons of the
equal protection of the laws, or of
equal privileges and immunities under
the laws; (3) an act in furtherance of
the conspiracy; (4) whereby a person is
either injured in his person or property
or deprived of any right or privilege of
a citizen of the United States.
Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d
Cir. 2007). It also requires a showing that the conspiracy was
“motivated by some racial or perhaps otherwise class-based,
invidious discriminatory animus.” Id. (citation omitted).
For the reasons above, the Court agrees with the Municipal
Defendants that plaintiffs have failed to plausibly allege
a conspiracy at all. That alone requires dismissal of this
claim. See, e.g., id. at 792. Further, as the Municipal
Defendants note, plaintiffs have also not alleged that any of
the defendants’ actions were motivated by a discriminatory
animus. Rather, they allege that defendants acted either out of
a desire for self-preservation or retaliation. Again, plaintiffs
offer no counter to these points. Accordingly, the Court
dismisses plaintiffs’ § 1985 claim, both because plaintiffs
have abandoned it and because it is deficient on the merits.
See Romeo & Juliette, 2014 WL 4723299, at *7.
5. Intentional Deprivation of Constitutional Rights
*18 Plaintiffs broadly assert a separate cause of action for
“intentional violation of federally protected constitutional
rights” against all defendants, accusing all of attempting
to interfere with their “rights to effectively and without
unnecessary governmental intrusion, parent and otherwise
associate with their children.” Am. Compl. ¶ 258. Although
the Medical Defendants moved to dismiss this claim, the
Municipal Defendants appear to have overlooked it. See
generally City Mem. (seeking dismissal of entire Amended
Complaint but failing to address Count Four); City Reply.
Without arguments directed to this claim, the Court will
not dismiss it sua sponte, and, in any event, this claim
appears to track (seemingly completely) plaintiffs’ claim
—which the Court has allowed to proceed against the
Municipal Defendants—of malicious prosecution. The Court
accordingly does not yet have occasion or cause to dismiss
this claim.
6. False Imprisonment
Plaintiffs also assert false imprisonment under § 1983. To
prevail on that claim, they must plead that: “(1) the defendant
intended to confine [the plaintiff], (2) the plaintiff was
conscious of the confinement, (3) the plaintiff did not consent
to the confinement and (4) the confinement was not otherwise
privileged.” McGowan v. United States, 825 F.3d 118, 126 (2d
Cir. 2016).
In the Amended Complaint, plaintiffs allege that the
“restrictions upon [their] collective liberty to associate with
one another constitutes ‘confinement’ as a matter of New York
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State and Constitutional law.” Am. Compl. ¶ 283. They do
not cite any authority in support of this broad conception
of “confinement,” and do not otherwise allege any actual
confinement, let alone that A.K. or any other plaintiff was
aware of it. See id. ¶¶ 281–86. And after defendants each
moved to dismiss because of these failures, plaintiffs again
did not respond. 17 This claim is therefore also abandoned,
and the Court dismisses it. See Romeo & Juliette, 2014 WL
4723299, at *7.
17 Plaintiffs mention this claim twice in their
opposition, but only to state that it “implicate[s]
rights that [are] clearly established under the
Constitution,” and that it is among their state-law
claims. See Pl. Opp'n at 16 n.6, 43 n.15.
7. Monell Liability
Finally, plaintiffs pursue liability on all the above counts
against the City of New York under Monell, 436 U.S. 658.
Municipal liability in a § 1983 action may not rest on
respondeat superior or vicarious liability. Id. at 691. Instead,
to hold a municipality liable under § 1983 for unconstitutional
actions of its employees, a plaintiff must prove that there was
a municipal policy or custom that directly subjected her to
a constitutional violation. See Amnesty Am. v. Town of West
Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (“[C]onstitutional
torts committed by city employees without official sanction
or authority do not typically implicate the municipality in
the deprivation of constitutional rights, and therefore the
employer-employee relationship is in itself insufficient to
establish the necessary causation.” (citation omitted)).
A plaintiff can establish the existence of a policy or custom
by showing:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77
(S.D.N.Y. 2010) (citations omitted) (collecting cases).
Absent an underlying constitutional violation, the Court need
not address municipal liability. See, e.g., Segal v. City of
New York, 459 F.3d 207, 219 (2d Cir. 2006). Accordingly,
at the threshold, Monell liability cannot obtain for plaintiffs’
claims for abuse of process, conspiracy under §§ 1983
and 1985, or false imprisonment. Further, plaintiffs largely
base their Monell claim on the City's alleged “widespread
policy and custom of having doctors and social workers
act under the color of law ... and bring the coercive and
overwhelming forces of governmental authority to bear on
individuals and families without accountability.” Am. Compl.
¶ 262. However, the Court has already held that, here, the
medical doctors of whom plaintiffs complain are not state
actors, and so cannot have been party to any constitutional
violations. Plaintiffs’ notion that a City policy relating to
these professionals—whose reporting is, in fact, required by
state law, see N.Y. Soc. Serv. Law § 413—could support
liability on the part of the City thus fails at the threshold.
See Segal, 459 F.3d at 219. In any event, plaintiffs do not
plausibly allege any such policy. Instead, they merely recite
the facts of their own experience with ACS, and conclusorily
declare it representative of a broader policy or custom. See
Am. Compl. ¶¶ 266–71; e.g., Aragon v. New York, No. 14
Civ. 9797 (ER), 2017 WL 2703562, at *6 (S.D.N.Y. June 22,
2017) (dismissing Monell claim where plaintiffs “allege[d]
the existence of a practice adopted by the City solely based
on Plaintiff's alleged experience”).
*19 As to plaintiffs’ surviving § 1983 claims, the Amended
Complaint alleges only the third basis for Monell liability:
a consistent and widespread practice, custom, or usage of
the City. 18 Where this theory is adequately pled, “an act
performed pursuant to a ‘custom’ that has not been formally
approved by an appropriate decisionmaker may fairly subject
a municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law.” Bd. of
Cnty. Comm'rs of Bryant Cnty. v. Brown, 520 U.S. 397, 404
(1997).
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18 Plaintiffs’ opposition brief also suggests the City
may be liable based on a “failure by policymakers
to provide adequate training or supervision to
subordinates to such an extent that it amounts to
deliberate indifference.” Pl. Opp'n at 41 (quoting
Brandon, 705 F. Supp. 2d at 276–77). But
the Amended Complaint does not allege facts
supporting this theory of municipal liability. See
Am. Compl. ¶¶ 261–80; Cruz v. City of New York,
No. 15 Civ. 2265 (PAE), 2016 WL 234853, at *6
(S.D.N.Y. Jan. 19, 2016) (holding that plaintiffs
“cannot add [new theories of Monell liability] in an
opposition brief” and collecting cases). Similarly,
plaintiffs cite cases discussing instances in which
“a municipality may be liable for a single incident
under proper circumstances,” Pl. Opp'n at 40–41
(citing Pembaur v. Cincinnati, 475 U.S. 469, 480
(1986)), but do not explain why such circumstances
are present here, let alone identify allegations that
support that theory. These theories, too, cannot
survive.
Here, plaintiffs allege that it is a “custom and practice” of the
City to
initiate[ ] a removal proceeding on
less than probable cause knowing
and relying on the fact that for
an overwhelming percentage of
parents the financial and emotional
wherewithal to stand their ground to
the bitter end is not possible and that
they accept a negotiated plea which, in
turn, insulates ACS from liability.
Am. Compl. ¶ 278. Plaintiffs provide one factual datum in
support: Iwenofu's statement that, in her 16 years working
for ACS, she had never seen a case discharged without
“someone taking the blame.” Id. ¶¶ 129, 279. But that
stray observation does not speak to any broader policy of
maliciously prosecuting individuals. It says nothing about
whether the actions she described were commenced with or
without probable cause or malice. And if all those actions,
in fact, concluded in a compromise, as Iwenofu's statement
implies, none would have terminated in favor of the accused.
See, e.g., Rothstein, 373 F.3d at 286.
Otherwise, plaintiffs do not cite any facts in support of the
existence of this alleged policy. Nor do they allege any prior
legal actions involving the same or similar issues, or even any
specific family-court proceedings, even if they did not lead
to a § 1983 action, that fit the pattern alleged here. See, e.g.,
Cruz, 2016 WL 234853, at *5 (allegations of eight previously
settled civil rights actions “fall far short of establishing a
custom sufficient to support a Monell claim”); Calderon
v. City of New York, 138 F. Supp. 3d 593, 613 (S.D.N.Y.
2015) (dismissing Monell claims where plaintiff “does not
cite any civil cases that implicated the unlawful practice she
challenges”); Tieman v. City of Newburgh, No. 13 Civ. 4178
(KMK), 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015)
(same where plaintiff cited 13 prior cases involving similar
allegations, but none had “result[ed] in an adjudication of
liability”). Devoid of any concrete factual allegations from
which the existence of an unconstitutional municipal policy,
custom, or usage that caused plaintiffs’ injuries could be
inferred, the Amended Complaint fails to state a claim for
municipal liability under § 1983. The Court thus dismisses
plaintiffs’ Monell claim against the City. 19
19 Plaintiffs also name Hansell, ACS's Commissioner,
as a defendant, but only in his official capacity
and insofar as he is “the government official
whose edicts and acts represent the official policy,
practices, customs and regulations of ACS.” See
Am. Compl. ¶ 12. They do not allege his personal
involvement in any unconstitutional acts. His
dismissal may well be warranted under the same
principles discussed above. See, e.g., D'Alessandro
v. City of New York, 713 F. App'x 1, 10 (2d Cir.
2017). Defendants, however, have not moved to
dismiss him from this action based on his lack of
personal involvement, and the Court will not do so
sua sponte.
*20 Accordingly, the Court will dismiss all federal claims
against the Medical Defendants, because plaintiffs have not
plausibly alleged that they were state actors or conspired
with state actors in any relevant way. The Court also
dismisses plaintiffs’ claims against the Municipal Defendants
under § 1983 for abuse of process, false imprisonment, and
conspiracy, and under § 1985 for conspiracy. However, the
Court denies the Municipal Defendants’ motion to dismiss
plaintiffs’ § 1983 claim for malicious prosecution and a
violation of their substantive due process rights. As to the
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City of New York, however, the Court dismisses those latter
claims, as well.
C. State Claims
1. Supplemental Jurisdiction
Federal district courts have discretion to exercise
supplemental jurisdiction over state-law claims “that are so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. §
1367(a). Federal and state law claims are part of the same case
or controversy if they share “a common nucleus of operative
fact.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S.
156, 165 (1997). Claims share such a nucleus if “the facts
underlying the federal and state claims substantially overlap
or the federal claim necessarily brings the facts underlying the
state claim before the court.” Achtman v. Kirby, McInerney &
Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006) (cleaned up).
Here, plaintiffs bring many state-law claims, some of which
overlap nearly entirely with their federal claims, and others
of which arise from a common nucleus of operative facts.
Accordingly, with one exception discussed below, the Court
exercises its supplemental jurisdiction over plaintiffs’ state-
law claims.
2. Malicious Prosecution
As to the Municipal Defendants, the elements of malicious
prosecution under New York law are largely the same as
under § 1983, save for the requirement of a constitutional
violation. See Stampf, 761 F.3d at 198; see also Lanning, 908
F.3d at 24–25 (noting that New York law requires a lesser
“favorable termination” showing than § 1983 does, as New
York law requires only that the termination of the action
is “not inconsistent with the Plaintiff's innocence” (citation
omitted)). The Court thus denies the Municipal Defendants’
motion to dismiss plaintiffs’ state-law claim for malicious
prosecution for the reasons given above.
Plaintiffs have also named the City of New York in this count.
Although § 1983 claims may not be asserted based on a
theory of respondeat superior, New York law does provide
for vicarious liability in some circumstances. See, e.g., Velez
v. City of New York, 730 F.3d 128, 136–37 (2d Cir. 2013);
Biswas v. City of New York, 973 F. Supp. 2d 504, 539–40
(S.D.N.Y. 2013); Swierczynski v. O'Neill, 41 A.D.3d 1145,
1146 (4th Dep't 2007). The Municipal Defendants have not
addressed this point. The Court accordingly leaves standing
the state-law claim for malicious prosecution against the City.
As to the Medical Defendants, the question is more complex.
To state a claim for malicious prosecution under New York
law, a plaintiff must allege “(1) the initiation or continuation
of a criminal proceeding against plaintiff; (2) termination of
the proceeding in plaintiff's favor; (3) lack of probable cause
for commencing the proceeding; and (4) actual malice as a
motivation for defendant's actions.” Stampf, 761 F.3d at 198.
As under § 1983, such claims, under New York law, can
arise out of civil proceedings. See, e.g., Perryman v. Village
of Saranac Lake, 41 A.D.3d 1080, 1081 (3d Dep't 2007).
Unlike under § 1983, however, New York law authorizes
claims for malicious prosecution against private individuals,
even if not state actors, where they “played an active role in
the prosecution, such as giving advice and encouragement or
importuning the authorities to act.” Rohman, 215 F.3d at 217
(quoting DeFilippo v. County of Nassau, 183 A.D.2d 695, 696
(2d Dep't 1992)).
*21 The Medical Defendants argue, inter alia, that
plaintiffs’ state-law claim for malicious prosecution against
them fails because ACS, not they, initiated the removal
proceeding. As to most such defendants, the Court agrees.
Under New York law, “[t]he mere reporting of a crime to
police and giving testimony are insufficient” to establish
liability for malicious prosecution. Estiverne v. Esernio-
Jenssen (“Estiverne I”), 581 F. Supp. 2d 335, 348 (E.D.N.Y.
2008) (quoting Present v. Avon Prods., Inc., 253 A.D.2d 183,
189 (1st Dep't 1999)). That applies even if a defendant gave
“false information to the authorities.” Id. (quoting Lupski v.
County of Nassau, 32 A.D.3d 997, 998 (2d Dep't 2006)). A
private individual who falsely reports to the authorities can
be held responsible for initiating a prosecution only upon a
“showing that, at the time the information was provided, the
defendant knew it to be false.” Id.
Largely for the reasons given above in explaining why such
private reporters are not state actors, the Court holds that
plaintiffs have not plausibly alleged that Dr. Ranade, Dr.
Fabricant, Dr. Platt, Dr. Shaykh, or Glass played an active role
in the removal proceedings, either by encouraging or advising
ACS to act. Rather, setting aside the Amended Complaint's
speculative and conclusory allegations, plaintiffs allege only
that these defendants reported suspected child abuse to ACS,
as they were required to do by N.Y. Soc. Serv. Law § 413.
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Dr. Ranade had examined A.K. and observed both a femur
fracture and potentially injured clavicle, and reported such
observations to ACS—tempering her assessment by noting
that she could not confirm a clavicle fracture. See Am.
Compl. ¶ 105. Dr. Fabricant and Glass may have repeated
Dr. Lupica's story to ACS but, even assuming that story
was false, plaintiffs have not plausibly alleged that these
defendants knew it to be so at the time. And Dr. Platt and
Dr. Shaykh are not alleged to have ever contacted ACS.
Accordingly, plaintiffs have not plausibly alleged that any
of these defendants initiated the removal proceedings. The
Court grants their motions to dismiss the state-law claims for
malicious prosecution against them. 20
20 Although the above reasoning independently
requires dismissal, these defendants are also
protected by N.Y. Soc. Serv. Law § 419, which
confers immunity against state-law liability for
the mandatory reporting of suspected child abuse
or neglect, absent “willful misconduct or gross
negligence.” Isabelle V. v. City of New York,
150 A.D.2d 312, 313 (1st Dep't 1989). Thus,
“[m]andated reporters need not await conclusive
evidence of abuse or maltreatment but must act on
their reasonable suspicions[,] and the law allows
them a degree of latitude to err on the side of
protecting children who may be suffering from
abuse.” Id. Because plaintiffs have not plausibly
alleged willful misconduct or gross negligence by
these doctors, and have pled that A.K. presented
with severe injuries, these defendants, even taking
plaintiffs’ non-conclusory allegations as true, acted
reasonably in the situation, triggering immunity
under section 419.
As to Dr. Lupica, however, the analysis differs. The Amended
Complaint plausibly alleges that her reports, both to the
other private individuals on the August 27–30, 2018 email
chain and to an ACS caseworker, were deliberately false.
See supra pp. 20–21. It alleges that, once confronted with
her failure to diagnose A.K.’s broken femur, she declared
that there was “no way” that A.K. had that injury at the
time of her initial examination. See Am. Compl. ¶¶ 74–75.
And it alleges that Dr. Lupica, apparently to enhance the
credibility of her false statement, further falsely claimed to
have examined—or at least been in the presence of—A.K.
for four hours, rather than the five minutes that she actually
spent with A.K. The Amended Complaint further alleges that
Dr. Lupica, in an error that exposed her unfamiliarity with
A.K., misidentified A.K. as male. Id. Such allegations are
enough to push plaintiffs’ claim of Dr. Lupica's deliberate
lying from merely conceivable to plausible. See Iqbal, 556
U.S. at 678. 21
21 In their reply, the Weill Cornell defendants argue
that Dr. Lupica was correct in late-August 2018,
and that A.K. did not, in fact, have the alleged
femur fracture when she appeared at Weill Cornell
on August 8, 2018. See Weill Cornell Reply at 8–
9. That is of course possible. And the discovery
that will now commence will, of necessity, give
the surviving defendants a fulsome opportunity to
test whether Dr. Lupica's or the parents’ version of
events on August 8–9, 2018, is true, and whether
Dr. Lupica had a good-faith basis to make the
claims that she did. But at this stage of the litigation,
where the Court's review is limited to the pleadings,
the Court must credit the well-pled allegations in
the Amended Complaint.
*22 Accepting that allegation as true, plaintiffs have
plausibly asserted a claim under New York law for malicious
prosecution against Dr. Lupica. A private defendant can
“initiate” a prosecution by giving false information to the
authorities if “at the time the information was provided, the
defendant knew it to be false.” Lupski, 32 A.D.3d at 998;
see Emanuel I, 2013 WL 5477505, at *7; Estiverne I, 581
F. Supp. 2d at 347–49. Here, the Amended Complaint so
alleges as to Dr. Lupica. It alleges that, on the day that
ACS commenced removal proceedings against plaintiffs, Dr.
Lupica contacted ACS to falsely report child abuse, knowing
her report was false. See Am. Compl. ¶¶ 75, 81. Those
facts plausibly assign her an “active role” in the initiation
of the removal proceedings. Rohman, 215 F.3d at 217. The
Amended Complaint also pleads the other elements of this
tort as to Dr. Lupica. The removal proceedings terminated in
the parents’ favor. See supra pp. 28–29. And assuming that
the content of Dr. Lupica's report to ACS was false, plaintiffs
have pled a lack of probable cause to so report. See, e.g.,
Emanuel I, 2013 WL 5477505, at *7. Last, because the “lack
of probable cause generally raises an inference of malice,”
Ricciuti, 124 F.3d at 131, plaintiffs have also plausibly alleged
malice. 22
22 Dr. Lupica argues that she is immune under N.Y.
Soc. Serv. Law § 419. See Weill Cornell Mem. at
13–14. But section 419 does not apply to instances
of “willful misconduct” or “gross negligence,” as
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is plausibly alleged here. Isabelle V., 150 A.D.2d at
313.
Accordingly, the Court denies Dr. Lupica's motion to dismiss
this claim. Because New York law, unlike § 1983, recognizes
vicarious liability for employers in some circumstances, see
Velez, 730 F.3d at 136–37, and the Weill Cornell Defendants
have not offered any counter on this point, the Court also
denies the motion to dismiss the claim against Weill Cornell.
As to all other Medical Defendants, this claim is dismissed.
3. Abuse of Process
Plaintiffs’ claim for abuse of process under New York law
is governed by the same standards as their claim under §
1983. See Savino, 331 F.3d at 76. For the same reasons given
above in connection with the § 1983 abuse-of-process claim
—that plaintiffs have abandoned this claim and also failed
to plausibly allege a collateral objective by any defendant—
the Court dismisses this claim. As to the latter point, insofar
as plaintiffs allege false reporting by Medical Defendants
such as Dr. Lupica, “courts have dismissed abuse of process
claims for [lack of an ulterior motive] where” individuals
“allegedly filed false allegations of abuse and harassment to
obtain a protective order” against an individual, where the
“ulterior and illegitimate” purpose identified was to harass
a family member. Silver v. Kuehbeck, 217 F. App'x 18, 21
(2d Cir. 2007) (summary order). Even there, “the falsity of
the allegations and defendant's malicious motive in making
them do not, of themselves, give rise to a cause of action for
abuse of process.” Id. (quoting Butler v. Ratner, 210 A.D.2d
691, 692 (3d Dep't 1994)). Plaintiffs thus have not plausibly
alleged abuse of process against any defendants under state
law.
4. False Imprisonment
Plaintiffs’ claim for false imprisonment under state law
similarly tracks their § 1983 claim for false imprisonment. See
Am. Compl. ¶¶ 281–86. For the reasons above, the Amended
Complaint does not state a claim for false imprisonment based
on the removal of A.K. and M.K. from the parents’ custody;
and plaintiffs, in any event, have abandoned this claim. The
Court dismisses the state-law claim for false imprisonment.
5. Intentional Infliction of Emotional Distress
“Under New York law, a claim for intentional infliction of
emotional distress must satisfy an ‘exceedingly high legal
standard.’ ” DiRuzza v. Lanza, 685 F. App'x 34, 36 (2d
Cir. 2017) (summary order) (quoting Chanko v. Am. Broad.
Cos. Inc., 27 N.Y.3d 46, 57 (2016)). First, the tort “may
be invoked only as a last resort, to provide relief in those
circumstances where traditional theories of recovery do not.”
Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015) (citation
omitted). Second, a party alleging IIED must plead conduct
“so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Chanko, 27 N.Y.3d at 56 (citation omitted). The time to bring
a claim for IIED, as with most other intentional torts, is one
year from the alleged actions giving rise to the claim. See, e.g.,
Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491 (2007)
(citing N.Y. C.P.L.R. § 215).
*23 Here, plaintiffs argue that the Medical Defendants’ false
reporting, and ACS's malicious prosecution of the removal
proceeding, constitutes IIED. The Medical Defendants all
argue that plaintiffs’ IIED claim is time-barred because
plaintiffs filed this action more than one year after the last
of their alleged actions or communications with ACS took
place. They are correct. Plaintiffs filed this action on May 1,
2020. See Dkt. 1. A timely claim for IIED thus must arise
from actions on or after May 1, 2019. But the last alleged
action by any Medical Defendant was Dr. Ranade's October
4, 2018 unauthorized x-rays of A.K. Am. Compl. ¶ 125; see
also id. ¶ 29 (describing September 10, 2018 report to ACS
that parents brought A.K. to see Dr. Ranade unaccompanied).
And the last alleged acts by Dr. Lupica, Dr. Fabricant, Dr.
Platt, Dr. Shaykh, and Glass occurred earlier, in August 2018.
See, e.g., id. ¶¶ 72–83. New York courts have specifically held
that, for IIED claims based on false reporting to ACS, such
claims accrue on the date of the false report, even where the
resulting removal of a child takes place later on. See, e.g.,
Williams v. Georgopoulos, 184 A.D.3d 608, 609 (2d Dep't
2020) (collecting cases). Accordingly, no acts on which the
IIED claim against the Medical Defendants is based took
place within the one-year statute of limitations set by N.Y.
C.P.L.R. § 215. That forecloses plaintiffs’ IIED claim against
the Medical Defendants. 23
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23 Plaintiffs argue, summarily in a footnote, that the
Medical Defendants’ conspiracy with ACS makes
their claim timely. See Pl. Opp'n at 46 n.16. They
do not cite authority for that notion. And, as held
above, the Amended Complaint does not plausibly
allege any such conspiracy.
As to the Municipal Defendants, their actions arguably
continued into May 2019, when they ultimately withdrew the
removal Petition. Perhaps for this reason, they do not move
on the basis of the statute of limitations. But dismissal of
this claim against the Municipal Defendants is required for
an independent reason. As defendants rightly argue, a “cause
of action alleging intentional infliction of emotional distress
should [be] dismissed as duplicative of [a] cause[ ] of action
alleging malicious prosecution.” Leonard v. Reinhardt, 20
A.D.3d 510, 510 (2d Dep't 2005) (collecting cases). Because
IIED “may be invoked only as a last resort,” where alleged
conduct “falls well within the ambit of other traditional
tort liability,” IIED claims generally are to be dismissed.
Salmon, 802 F.3d at 256; see id. at 257 (“[B]ecause other tort
remedies were available to Salmon, the district court correctly
dismissed his intentional infliction claim.”); see also Shaheed
v. City of New York, 287 F. Supp. 3d 438, 455 (S.D.N.Y. 2018)
(citing malicious prosecution as one such tort, and dismissing
IIED claim because injuries were not “irremediable through
traditional tort remedies”), aff'd sub nom. Shaheed v. Kroski,
833 F. App'x 868 (2d Cir. 2020); Leonard, 20 A.D.3d at
510 (same). Here, as the Court has held, ACS's decision
to pursue removal proceedings, to the extent it may be
found outrageous or intolerable, is redressable within the
framework of the familiar tort of malicious prosecution.
Indeed, the facts that the Amended Complaint relies on
in claiming IIED almost entirely repeat those offered in
support of their malicious prosecution claim. See Pl. Opp'n
at 46 (“ACS, therefore, acting in concert with the members
of the Weil Cornell/Ranade/HSS Conspiracy both ignored
significant exculpatory evidence and manufactured a false
or reckless diagnosis.” (footnote omitted)). Compare Am.
Compl. ¶¶ 191–226 (malicious prosecution), with id. ¶¶ 322–
30 (IIED). Accordingly, the Court dismisses plaintiffs’ IIED
claim against the Municipal Defendants, as duplicative of
their malicious prosecution claim against those defendants.
6. Loss of Consortium and Companionship
All defendants have moved to dismiss plaintiffs’ claims
for loss of consortium and loss of companionship, on
several grounds. Plaintiffs have not responded. This claim is
abandoned, and the Court dismisses it. See Romeo & Juliette,
2014 WL 4723299, at *7.
7. Medical Malpractice
Plaintiffs bring two claims for medical malpractice: (1)
against Dr. Lupica, Dr. Shaykh, and Weill Cornell for
allegedly failing to diagnose A.K.’s broken femur on August
8, 2018; and (2) against Dr. Ranade, for allegedly taking
unauthorized x-rays of A.K., without informed consent,
on October 4, 2018. See Am. Compl. ¶¶ 287–315. Those
defendants each move to dismiss those claims against them.
*24 The Court denies the Weill Cornell Defendants’ motion.
They first argue that, because A.K. promptly received proper
treatment for her fracture at Mt. Sinai, “any claim for
purported malpractice is limited to treatment over the course
of less than 24 hours.” Weill Cornell Mem. at 22. Although
that fact bears on the damages available to plaintiffs, it does
not defeat the claim that defendants “deviat[ed] from accepted
medical standards” in examining A.K. at the outset of her
care. E.g., Gold v. Hershey, 90 A.D.2d 704, 705 (1st Dep't
1982). Second, they argue that the Court should exercise
its discretion to decline supplemental jurisdiction over this
claim. But Weill Cornell's August 8, 2018 examination of
A.K. is interwoven with other issues in this case—including
whether Dr. Lupica truthfully reported her assessment that
night. And other claims implicating these events, against
both Dr. Lupica and others, are proceeding to discovery.
Absent “exceptional circumstances” or “other compelling
reasons for declining jurisdiction,” the Court will not decline
supplemental jurisdiction over this claim. 28 U.S.C. § 1367(c)
(4).
As to the claim against Dr. Ranade, however, the Court
declines to exercise such jurisdiction. See Mt. Sinai Mem.
at 19. The Court has dismissed all other claims against Dr.
Ranade. And Dr. Ranade's October 4, 2018 x-rays, which she
took months after the removal proceedings commenced and
never allegedly relayed to ACS or anyone else, are unrelated
to any of plaintiffs’ surviving claims against any remaining
defendants. The Court dismisses this claim, without prejudice
to plaintiffs’ right to pursue it in state court.
8. Defamation
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Kurtz v. Hansell, Not Reported in Fed. Supp. (2021)
2021 WL 1143619
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 24
Last, plaintiffs bring a claim for defamation, solely against
Dr. Ranade, Dr. Platt, and Glass. In support, they cite (1) Dr.
Platt's emailed statements, on August 27–30, 2018, that the
parents were “dangerous” and that she could not “imagine
how ACS released this vulnerable infant to the family,”
Am. Compl. ¶¶ 376–78; (2) Dr. Ranade's reports to ACS
of suspected child abuse or neglect, id. ¶¶ 379–81; and that
Glass “reiterated and repeated” the claim that the parents were
“dangerous,” id. ¶ 382.
Defendants argue that these claims are time-barred. Plaintiffs
have not responded. The Court holds with defendants. Under
New York law, an action for defamation or slander must “be
commenced within one year of the publication or utterance of
the defamatory statement,” and “[d]iscovery does not extend
the one-year period.” Frederick v. Fried, 10 A.D.3d 444, 445
(2d Dep't 2004) (collecting cases). Plaintiffs filed this action
on May 1, 2020, meaning that only statements on or after May
1, 2019 may be actionable. See id. All of Glass's, Dr. Platt's,
and Dr. Ranade's allegedly defamatory statements occurred
between August and October 2018. Accordingly, plaintiffs’
claim for defamation is dismissed as untimely.
CONCLUSION
For the foregoing reasons, the Court rules as follows on the
motions to dismiss.
The Court grants in full the motions to dismiss by the HSS
Defendants and the Mt. Sinai Defendants.
The Court grants in part and denies in part the motion by the
Municipal Defendants. The Court dismisses all claims against
the Division of Child Protection, ACS, and the New York
Comptroller, and all federal claims against the City of New
York. The Court also dismisses plaintiffs’ claims for abuse
of process under federal and state law, false imprisonment
under federal and state law, conspiracy under §§ 1983 and
1985, loss of companionship and consortium under state law,
and IIED under state law, against all Municipal Defendants.
However, the Court denies the Municipal Defendants’ motion
as to plaintiffs’ claims (1) for malicious prosecution, under
federal and state law, as alleged against the individual
Municipal Defendants; (2) for violation of plaintiffs’ right to
family integrity under 42 U.S.C. § 1983, as alleged against
the individual Municipal Defendants; and (3) for malicious
prosecution, only under state law, as alleged against the City
of New York.
Finally, the Court grants in part and denies in part the
motion by the Weill Cornell Defendants. The Court dismisses
all federal claims against those defendants, as well as the
state-law claims against them for false imprisonment, abuse
of process, loss of consortium and companionship, IIED,
and defamation. The Court also dismisses all other claims
against Dr. Platt, and the state-law malicious prosecution
claim against Dr. Shaykh. The Court, however, denies the
motion to dismiss plaintiffs’ claims (1) against Dr. Lupica
and Weill Cornell for malicious prosecution under state law;
and (2) against Dr. Lupica, Dr. Shaykh, and Weill Cornell for
failure to diagnose.
*25 Accordingly, this case will proceed solely as to the
following claims: (1) malicious prosecution under § 1983
against the individual Municipal Defendants; (2) violation
of the family's substantive due process rights under § 1983
against the individual Municipal Defendants; (3) malicious
prosecution under state law against the individual Municipal
Defendants, the City of New York, Dr. Lupica, and Weill
Cornell; and (4) failure to diagnose against Dr. Lupica, Dr.
Shaykh, and Weill Cornell.
The Clerk of Court is respectfully directed to terminate as
parties to this case defendants Dr. Sheena Ranade, Mt. Sinai
Hospital, Dr. Peter Fabricant, LSW Karen Glass, the Division
of Child Protection, the New York Comptroller, and the
Administration for Children's Services. The Clerk of Court is
further directed to terminate the motions pending at dockets
89, 93, 99, and 112.
An order scheduling an initial conference in this case will
issue shortly.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 1143619
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 78 of 112

Kurtz v. Hansell
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (6)
Title PDF Court Date Type
1. Verified Complaint and Jury Demand
Shveta Kakar KURTZ, Daniel L. Kurtz, Amna Kakar
Kurtz (A Minor Child), Mia Kakar Kurtz (A Minor Child),
Plaintiffs, v. David HANSELL, as the Duly Appointed
Commissioner of the New York City Administration for
Children's Services, The Division of Child Protection,
The City of New York, Yscary Rodriguez, Individually
and as a Caseworker employed by ACS, "Ms. Bhojranie
Maygoo," Individually and as a Caseworker employed by
Acs, Eunice Iwenofu, Individually and as a Caseworker
employed by Acs, Brenda Lawson, Individually and as an
ACS Case Manager/Supervisor, Esperanza Sandoval,
Individually and as a Supervisor in the Family Support
Unit employed by ACS, Dr. Peter Fabricant, Individually
and as a Treating Physician and State Actor Operating
Under Color of Law, Dr. Marie Lupica, as an Individual,
Treating Physician and State Actor Operating Under Color
of Law, Dr. Ramzi Marwan Shaykh, Individually and as a
Treating Physician, Dr. Shari L. Platt, as an Individual and
as a Treating Physician and State Actor Operating Under
Color of Law, Dr. Sheena Ranade, as an Individual, as
a Treating Physician, and as an Individual Acting Under
Color of Law, LSW Karen Glass, as an Individual and as
a State Actor, Unnamed ACS Workers and Employees
1-10, Unnamed Employees and Workers of New York-
Presbyterian Hospital/Weill Cornell Medical Center 1-10,
Unnamed Workers and Employees of Mt. Sinai Hospital
1-10, and New York-Presbyterian Hospital/Weill-Cornell
Medical Center., Defendants.
2020 WL 13856900
— S.D.N.Y. May 01, 2020 Pleading
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 79 of 112

Kurtz v. Hansell
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
2. Medical Defendants' Reply Memorandum of Law
in Further Support of Their Motion for Summary
Judgment
Shveta Kakar KURTZ, Daniel L. Kurtz, Amna Kakar Kurtz
(A Minor Child), Mia Kakar Kurtz (A Minor Child), Plaintiffs,
v. David HANSELL, as the Duly Appointed Commissioner
of the New York Administration for Children's Services,
The Division of Child Protection, Administration for
Children's Services, Mt. Sinai Hospital, New York
Comptroller, The City of New York, Yscary Rodriguez,
Individually and as a Caseworker employed by ACS, "Ms.
Bhojranie Maygoo", Individually and as a Caseworker
employed by ACS, Eunice Iwenofu, Individually and
as a Caseworker employed by ACS, Brenda Lawson,
Individually and as an ACS Case Manager/Supervisor,
Esperanza Sandoval, Individually and as a Supervisor
in the Family Support Unit employed by ACS, Dr. Peter
Fabricant, Individually and as a Treating Physician and
State Actor Operating Under Color of Law, Dr. Marie
Lupica, as an Individual, Treating Physician and State
Actor Operating Under Color of Law, Dr. Ramzi Marwan
Shaykh, Individually and as a Treating Physician, Dr. Shari
L. Platt, as an Individual and as a Treating Physician and
State Actor Operating Under Color of Law, Dr. Sheena
Ranade, as an Individual, as a Treating Physician, and
as an Individual Acting Under Color of Law, LSW Karen
Glass, as an Individual and as a State Actor, Unnamed
ACS Workers and Employees 1-10, Unnamed Employees
and Workers of New York-Presbyterian Hospital/ Weill
Cornell Medical Center 1-10, Unnamed Workers and
Employees of Mt. Sinai Hospital 1-10, and New York-
Presbyterian Hospital/Weill-Cornell Medical Center,
Defendants.
2022 WL 20717162
— S.D.N.Y. Aug. 19, 2022 Motion
3. 2023 WL 7544216
A.K. v. Lupica et al.
2023 WL 7544216
— S.D.N.Y. July 13, 2023 Jury Verdict
4. Judgment
Shveta Kakar KURTZ, et al., Plaintiffs, v. Dr. Marie
LUPICA, et al., Defendants.
2023 WL 6367915
— S.D.N.Y. Sep. 27, 2023 Jury Verdict
5. Verdict Form
Shveta Kakar KURTZ, Daniel L. Kurtz, solely in their roles
as parent-guardians, and Amna Kakar Kurtz, Plaintiffs, v.
Dr. Marie LUPICA and New York Presbyterian Hospital/
Weill-Cornell Medical Center, Defendants.
2023 WL 6367912
— S.D.N.Y. July 13, 2023 Jury Verdict
6. Docket 1:20-CV-03401
Kakar Kurtz et al v. Hansell et al
— S.D.N.Y. May 01, 2020 Docket
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 80 of 112

Kurtz v. Hansell
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (4)
Direct History (1)
1. Kurtz v. Hansell
2021 WL 1143619 , S.D.N.Y. , Mar. 24, 2021
Related References (3)
2. Kurtz v. Hansell
664 F.Supp.3d 438 , S.D.N.Y. , Mar. 27, 2023
Affirmed by
3. Kakar Kurtz v. Lawson
2025 WL 39860 , 2nd Cir.(N.Y.) , Jan. 07, 2025
4. Kurtz v. Lupica
2023 WL 3510646 , S.D.N.Y. , Apr. 26, 2023
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 81 of 112

Kurtz v. Hansell
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 82 of 112

Tuff v. Village of Yorkville Police Department, Not Reported in Fed. Supp. (2017)
2017 WL 401241
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Logan v. City of Schenectady, N.D.N.Y., August 13,
2019
2017 WL 401241
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jared TUFF, Plaintiff,
v.
VILLAGE OF YORKVILLE POLICE
DEPARTMENT, Village of Yorkville, Police
Chief DeLuca, Officer Guca, Defendants.
6:16-CV-473
|
Signed 01/30/2017
Attorneys and Law Firms
Ann Manion, Office of Ann W. Manion, Utica, NY, for
Plaintiff.
Molly M. Ryan, Goldberg, Segalla Law Firm—Syracuse
Office, Syracuse, NY, for Defendants.
DECISION & ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 Plaintiff Jared Tuff commenced this action asserting
claims pursuant to 42 U.S.C. § 1983 and New York state
law. Compl. # 1. Defendants move to dismiss on various
grounds. Dkt. # 4. Plaintiff opposes the motion, dkt. # 12, and
Defendants have replied. Dkt. # 13. The Court will decide the
motion without oral argument. For the reasons that follow, the
motion is granted in part and denied in part.
II. BACKGROUND 1
1 For the purposes of this motion, the Complaint’s
factual allegations are assumed to be true. See Fahs
Constr. Group, Inc. v. Gray, 2011 U.S. Dist. LEXIS
7822, at *5-6, 2011 WL 294269 (N.D.N.Y. Jan. 27,
2011).
On April 22, 2015, Plaintiff, an Africa American male, was
driving an automobile east on Oriskany Blvd. in the Village
of Yorkville, New York. After passing under a traffic light,
Defendant Officer Guca, a member of the Village of Yorkville
Police Department, pulled Plaintiff over. When he approached
Plaintiff’s car, Guca unbuckled his holster and placed his
hand on his weapon. Plaintiff asked why he was being pulled
over. Guca told Plaintiff that he failed to stop at a red light.
Guca then grabbed Plaintiff, pulled him out of his car, and
“slammed him across the hood of the car facing away from
the driver's seat.” Compl. ¶ 13. Plaintiff felt threatened and
fearful, and received bruising as a result of being pulled out
of the vehicle and “slammed” on the hood of the car. Id. ¶ 27.
Guca threatened to arrest Plaintiff if Plaintiff moved. Guca
“patted” plaintiff down, and then searched through Plaintiff’s
car although “Guca had no reasonable cause to search the
inside of the car.” Id. ¶ 14. Plaintiff was not charged with
having any contraband in the car, but Guca issued Plaintiff a
traffic ticket alleging that Plaintiff failed to stop at a traffic
control device.
On the return date of the ticket, Plaintiff requested that the
Village Justice set the matter for trial. At the ensuring bench
trial in Village Court, Guca testified that the light was red
when Plaintiff drove through it. Plaintiff testified that the light
was not red, and contended that Guca had lied because Guca
w as unable to see the traffic light from his vantage point at
the time Plaintiff proceeded under the light. After the trial,
Plaintiff “was advised that the traffic ticket was dismissed
and/or that he was not guilty of the infraction.” Id. ¶ 21.
Plaintiff maintains that “[t]he policies, procedures and
practices of the defendants as set forth in this complaint
violate the rights of plaintiff under the Fourth, Fifth, Eighth,
Ninth and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. Section 1983 because: the search
was conducted without probable cause or reason to believe
that any contraband, dangerous materials or incriminating
objects or weapons would be found. Thus each [sic] search
constitutes an unreasonable search and seizure in violation
of the Fourth Amendment and Fourteenth Amendments of
the United States Constitution. The search constitutes a gross
invasion of the rights of the plaintiff to privacy and due
process under the Fifth Amendment, Ninth Amendment and
Fourteenth Amendment to the United States Constitution.” Id.
¶ 33; see also, id., ¶ 22, ¶ 28. 2 Plaintiff also appears to allege
that the Village had a policy of failing to properly train and
supervise its police officers in the appropriate use of physical
force. Id. ¶¶ 29-30. 3
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Tuff v. Village of Yorkville Police Department, Not Reported in Fed. Supp. (2017)
2017 WL 401241
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
2 Plaintiff alleges that the “type of search” he
was subjected to “is a policy and procedure
either written or unwritten of the defendant
when pulling over individuals such as plaintiff—
African Americans—for violation of traffic laws.”
Compl. ¶ 22. Plaintiff also alleges that “[d]espite
knowledge of these institutionalized practices, the
defendants DeLuca and [the] Village have at no
time taken any effective action to prevent Police
Department personnel from continuing to engage
in this type of misconduct.” Id. ¶ 28.
3 Plaintiff alleges:
Defendants DeLuca and [the] Village had prior
notice of the vicious propensities of defendant
Guca but took no steps to train him, correct his
abuse of authority, or to discourage his unlawful
use of authority.
Defendants DeLuca and [the] Village
authorized, tolerated as institutionalized
practices, and ratified the misconduct detailed
above by:
a. Failing to properly discipline, restrict,
and control employees, supervise, including
defendants known to be irresponsible in their
dealings with citizens of the community;
b. Failing to take adequate precautions in
the hiring, promotion, and retention of police
personnel, including specifically defendant;
c. Failing to forward to the office of
the District Attorney of Oneida County
evidence of criminal acts committed by police
personnel;
d. Failing to establish or assure the functioning
of a bona fide and meaningful departmental
system for dealing with complaints of police
misconduct, but instead responding to these
types of complaints with bureaucratic power
and official denials calculated to mislead the
public.
Compl. ¶¶ 29-30.
*2 Further, Plaintiff contends that the Defendants' actions
resulted in deprivations of his rights under the Fourth, Fifth,
Sixth, Eight, Ninth and Fourteenth Amendments. Id. ¶ 34. 4
4 Plaintiff alleges:
The acts of the defendants that constitute
deprivation of the plaintiff’s civil rights and are
the basis of the claims in this action include:
a. Denial of Fourth and Fourteenth Amendment
rights:
I. By unlawfully and wrongfully seizing
plaintiff’s person without probable cause,
causing him unlawful detention that they
knew or should have known were false;
ii. By unlawfully and wrongfully seizing
plaintiff’s person in clear violation of due
process.
b. Denial of Fifth and Fourteenth Amendment
rights:
I. By knowingly and willfully submitting false
data regarding the transaction that led to
plaintiff being issued a traffic ticket;
ii. By knowingly and willfully uttering false
testimony at plaintiff’s trial;
iii. By conspiring to suborn perjured police
testimony;
iv. By knowingly, willfully, and wrongfully
concealing information that would have
assisted plaintiff in his defense;
v. By denying due process of law including
right to be free from unjustified and excessive
force utilized by the police department
personnel;
c. Denial of plaintiff’s Sixth and Fourteenth
Amendment rights:
I. By permitting and encouraging known
perjured testimony to be produced at the trial
by the prosecution.
d. Eighth Amendment right to be free from cruel
and unusual punishment.
e. Ninth Amendment right.
Compl. ¶ 34.
Under the caption “State Law Theories of Recovery,” Plaintiff
asserts that “[t]he acts and conduct alleged above constitute
actionable torts under the laws of the State of New York
including the torts of: a. false arrest; b. assault and battery;
c. malicious prosecution; d. abuse of process; e. negligence
and [sic]; f. gross negligence; g. illegal search.” Id. ¶ 41. He
contends that on July 2, 2015, he served a written verified
Notice of Claim “on the proper officer, agents and employees
the [sic] Defendants Village and Police Department pursuant
to the claims statutes covering these cases,” id. ¶ 39, and that
on August 3, 2015, he served “Amended” Verified Notices of
Claims upon “the defendants.” Id.; see also id., Ex. A.
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Tuff v. Village of Yorkville Police Department, Not Reported in Fed. Supp. (2017)
2017 WL 401241
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Plaintiff attaches as Exhibit A to the Complaint several
Notices of Claim, which he claims he filed pro se. 5 The
first indicates that it was executed and served on the Oneida
County Clerk on July 2, 2015. Compl., Ex. A., p. 1. It is
against “Officer Guca of the Yorkville Police Dept. in his own
capacity and as an individual,” and asserts “§ 69.02 Liability
for Intentional Torts” arising from an April 7, 2015 traffic
ticket issued by Officer Guca. Id. Plaintiff asserts that he was
ticketed on April 7, 2015 for running a red light even though
the light was yellow, Officer Guco caused Plaintiff to become
fearful because Officer Guco was yelling at him for running
a red light, and Officer Guco lied about the facts underlying
the traffic ticket at the ensuing trial. Id. The Notice of Claim
does not allege that Officer Guco pulled Plaintiff out of the
car, slammed Plaintiff on the vehicle’s hood, patted Plaintiff
down, or searched through the vehicle. Id. The only mention
of Chief DeLuca is in the context of Plaintiff’s allegation
that at the time Officer Guca ticketed him, Officer Guca’s
eyes were “bulging” and he was sweating. Plaintiff asserts
that when he asked Officer Guca at the trial “about his eyes
bulging and sweating, he stated he did not know why, but he
told the police Chief DeLuca that it was rain [sic] when he
admitted in trial that it was not raining.” Id. For relief, Plaintiff
seeks “Punitive damages-to punish Officer Guca.” Id.
5 Although Plaintiff filed his Notices of Claim pro
se, he is represented by counsel in this action.
*3 Exhibit A to the Complaint also includes three
“Amended” Notices of Claim, all of which were executed
and filed with the Oneida County Clerk on August 3, 2015.
Compl., Ex. A, pp. 2-4. The first is against “Officer Guca
in his own capacity and as an individual,” and asserts “Sec.
69.02 Liability for Intentional Torts.” Id. p. 2. Plaintiff
contends that on “April 22 nd about 7:39 A.M. Officer Guco
pulled me over and gave me a ticket for running a red light,
when I did not. On June 29, while in trial, Officer Guco lied
under oath by saying he could see the traffic light I went
through from the property of Yorkville Auto sales, when he
could not. Judge Kaluga ruled in my favor.” Id. There is no
allegation that Officer Guco pulled Plaintiff out of his vehicle,
made Plaintiff lie across the vehicle’s hood, patted Plaintiff
down, or searched through the vehicle. Id. There is also no
reference to Chief DeLuca in this Notice of Claim. For relief,
Plaintiff seeks “Punitive damages-to punish officer Guca.” Id.
The second is against “Yorkville Police Department, Officer
Guca,” and asserts “Sec. 69.1 Liability for Negligence” Id., p.
3. The factual allegations are the same as in the first Amended
Notice of Claim, but for relief Plaintiff seeks: “Civil Rights
Damages-Officer Guca violated my civil rights.” Id.
The third is against “Yorkville Police Department, Officer
Guca,” and asserts “Sec. 69.01 Liability for Negligence.”
Id. p. 4. The factual allegations are the same as in the
first and second Amended Notices of Claim, but for relief
Plaintiff seeks: “Actual Damages-for emotional distress and
nightmares.” Id.
III. STANDARD OF REVIEW
On a Rule 12(b)(6) motion, the Court must accept “all factual
allegations in the complaint as true, and draw[ ] all reasonable
inferences in the plaintiff's favor.” Holmes v. Grubman,
568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks
omitted). This tenet does not apply to legal conclusions,
non-factual matter, or “conclusory statements” set forth in a
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. While Fed. R.
Civ. P. 8(a)(2) “does not require detailed factual allegations, ...
it demands more than an unadorned, the-defendant-harmed-
me-accusation.” Id. (citation and internal quotation marks
omitted). A claim will only have “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.” Id. A complaint which “tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement’
” is insufficient. Id. (citation omitted).
“In considering a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6), a district court may consider
the facts alleged in the complaint, documents attached to
the complaint as exhibits, and documents incorporated by
reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010).
IV. DISCUSSION
Defendants move to dismiss all claims against all defendants
except the § 1983 excessive force claim against Officer
Guca under the Fourth Amendment. The Court will address
Defendants' arguments seriatim.
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Tuff v. Village of Yorkville Police Department, Not Reported in Fed. Supp. (2017)
2017 WL 401241
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
a. Police Department As A Proper Defendant
Defendants correctly note that a police department is an
administrative arm of a municipality and cannot be sued
because it does not exist separate and apart from the
municipality and does not have its own legal identity. See
Baggett v. Town of Lloyd, 2011 U.S. Dist. LEXIS 111565, at
*13-*14 (N.D.N.Y. 2011); Moffett v. Town of Poughkeepsie,
2012 WL 3740724, at *1, n.1 (S.D.N.Y. Aug. 29, 2012). 6 All
claims against the Village of Yorkville Police Department are
dismissed.
6 (“Under New York law, the Town of Poughkeepsie
Police Department is an administrative arm of a
municipality and does not have a separate legal
identity.”)
b. Section 1983 Official Capacity Claims
*4 Plaintiff sues Defendant Police Chief DeLuca
“individually and in his official capacity.” Comp. ¶ 4. Section
1983 “[p]ersonal-capacity suits seek to impose personal
liability upon a government official for actions he takes under
color of state law.” De Ratafia v. County of Columbia, 2013
WL 5423871, at *7 (N.D.N.Y. Sept. 26, 2013)(citing Scheuer
v. Rhodes, 416 U.S. 232, 237–238 (1974)). “Official-capacity
suits, in contrast, ‘generally represent only another way of
pleading an action against an entity of which an officer is
an agent.’ ” Id. (quoting Monell v. New York City Dep't.
of Soc. Servs., 436 U.S. 658, 690, n. (1978)). “As long as
the government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity.” Id. (citing
Brandon v. Holt, 469 U.S. 464, 471–472 (1985)). Because
Plaintiff has sued the Village of Yorkville, his claims against
DeLuca in his official capacity are redundant to the Village’s
potential § 1983 liability, and are dismissed.
Plaintiff has not specifically stated whether he is suing Guca
in his official capacity or personal capacity or both. To the
extent he is suing Guca under Section 1983 in Guca’s official
capacity, all such claims are dismissed.
c. Section 1983—Supervisory Capacity Claim Againy
DeLuca
Defendants argue that to the extent Plaintiff is asserting any
§ 1983 claims against DeLuca based upon his supervisory
capacity as the Police Chief, the claims should be dismissed
for lack of personal involvement.
“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.” Odom
v. Matteo, 772 F. Supp. 2d 377, 403 (D. Conn. 2011)
(quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
“The personal involvement of a supervisory defendant may
be shown by evidence that: (1) the defendant participated
directly in the alleged constitutional violation; (2) the
defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong; (3) the defendant
created a policy or custom under which unconstitutional
practices occurred, or allowed continuance of such a policy
or custom, (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful acts,
or (5) the defendant exhibited deliberate indifference to the
rights of [others] by failing to act on information indicating
that unconstitutional acts were occurring.” Odom, 772 F.
Supp. 2d at 403 (quoting Colon, 58 F.3d at 873); see also
Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014). 7
7 (noting that the continued vitality of all five Colon
factors set forth above remains an open question
post-Iqbal)
The Complaint contains no specific allegation about DeLuca's
personal involvement in any of the events underlying this
case, instead making only conclusory allegations about
DeLuca's responsibilities and supposed failures after the
alleged constitutional violations had occurred. A § 1983 claim
cannot be grounded on barebones, conclusory assertions. See
De Ratafia, 2013 WL 5423871, at *9. Plaintiff’s argument
that DeLuca was personally involved because he “had the
opportunity to dismiss/withdraw the ticket and chose not
to,” Pl. Mem. L. p. 5, relies on facts not alleged in the
Complaint. Even if these facts were alleged, DeLuca's
supposed inaction, in the form of opting not to withdraw
a traffic ticket that another police officer had already
issued, does not rise to the level of personal involvement
in underlying constitutional violations. Plaintiff fails to
present factual allegations plausibly indicting that DeLuca (1)
participated directly in the alleged constitutional violations
committed by Guca; (2) failed to remedy a constitutional
violation after being informed of it; 8 (3) created a policy
or custom under which unconstitutional practices occurred,
or allowed continuance of such a policy or custom; (4)
was grossly negligent in supervising Guca; or (5) exhibited
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deliberate indifference to Plaintiff’s rights by failing to
act on information indicating that unconstitutional acts
were occurring. 9 Because Plaintiff’s non-conclusory factual
allegations fail to present a plausible basis to satisfy any
of the Colon factors, the § 1983 claims against DeLuca are
dismissed without prejudice to repleading. 10
8 Plaintiff alleges in his memorandum of law in
opposition to defendants' motion to dismiss:
After plaintiff received the ticket, he went to the
Village Offices and spoke with Chief DeLuca
and told him what had happened. After speaking
with him, plaintiff got the impression from him
that the ticket was going to be dismissed or
withdrawn. Instead it was not and plaintiff was
forced to represent himself at the trial of the
ticket which was held on June 29, 2015.
Pl. Mem. L. p. 3.
These facts, on their face, do not indicate that
DeLuca was advised of an ongoing constitutional
violation that he could have remedied by
withdrawing the traffic ticket. Assuming for
purposes of argument that when Plaintiff indicates
that he told Chief DeLuca “what had happened,”
Plaintiff was referring to being subjected to
excessive force and an unreasonable search of
his vehicle after being stopped by Officer Guca,
this information did not convey to Chief DeLuca
that there was an ongoing constitutional violation.
Assuming on the other hand that Plaintiff was
referring to his contention that he was improperly
ticketed for driving through a red light, this is
certainly the type of response many ticketed-
drivers have and, in itself, does not indicate that
a constitutional violation had occurred or was
ongoing. Furthermore, under such circumstances
an objectively reasonable response would be to
allow the merits of the ticket to be adjudicated
through the courts.
Plaintiff’s allegation that DeLuca failed “to
forward to the office of the District Attorney
of Oneida County evidence of criminal acts
committed by police personnel” pleads no
viable constitutional deprivation against Plaintiff
committed by DeLuca, or known to him and
ignored.
9 See fn. 8, supra.
10 While Plaintiff has not asked for leave to replead
any dismissed claim, “ ‘this circuit strongly favors
liberal grant of an opportunity to replead after
dismissal of a complaint under Rule 12(b)(6).’ ”
Rojas v. Roman Catholic Diocese of Rochester,
557 F. Supp. 2d 387, 400 (W.D.N.Y. 2008)(quoting
Porat v. Lincoln Towers Community Ass'n, 464 F.3d
274, 276 (2d Cir. 2006)). Of course, if Plaintiff
intends to replead any claims that are dismissed
without prejudice to repleading, he must do so in
accordance with the dictates of Fed. R. Civ. P. 8(a)
and 11(b).
d. Monell Claim Against the Village
*5 Defendants contend that Plaintiff fails to state a factually
plausible claim under Monell v. Dept. of Social Services
of the City of New York, 436 U.S. 658 (1978), because
“[n]owhere in the complaint does plaintiff make any factual
allegations to support a conclusion that the Village had
unconstitutional customs or policies that caused a deprivation
of a constitutional right.” Def. Mem. L. p. 10; see also id. pp.
9-10. In this regard, defendants argue that “[t]he only factual
allegations relate to Guca's alleged actions in connection with
ticketing plaintiff for running a red light. However, proof of
a single incident of unconstitutional activity here would not
be sufficient to impose Monell liability.” Id. p. 10 (citing
Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1985)).
In opposition, Plaintiff merely asserts that “[t]here is
sufficient allegations in plaintiff's complaint to sustain actions
against the Village of Yorkville. Upon discovery it will be
clear to the parties as to the exact involvement of the Village
of Yorkville. After discovery, it may be that plaintiff will seek
court approval for filing an amended complaint.” Pl. Mem. L.
pp. 5-6.
To prevail on a § 1983 claim against a municipality, a plaintiff
must show that a municipal policy or custom caused the
deprivation of his constitutional rights. Monell, 436 U.S.
at 690–91. A municipality may not be held liable under
§ 1983 on the basis of respondeat superior. Id. at 694.
Rather, “[t]he plaintiff must first prove the existence of
a municipal policy or custom in order to show that the
municipality took some action that caused his injuries....
Second, the plaintiff must establish a casual connection—an
‘affirmative link’—between the policy and deprivation of his
constitutional rights.” Vippolis v. Village of Haverstraw, 768
F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 916 (1987).
Therefore, in order to establish municipal liability, Plaintiff
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must establish that an identified municipal policy or practice
was the “moving force [behind] the constitutional violation”
that he suffered. Monell, 436 U.S. at 694; see also Anderson
v. City of New York, 657 F. Supp. 1571, 1575–76 (S.D.N.Y.
1987). 11
11 (A plaintiff also “must link the behavior in question
to the policy of failure to discipline—for example,
the officer must have known of the policy at
the time he allegedly committed the civil rights
violations.”)
Monell claims must satisfy the Iqbal and Twombly plausibility
standard. Plair v. City of New York, 789 F. Supp. 2d 459,
469 (S.D.N.Y. 2011). “[T]he boilerplate Monell claims often
included in many § 1983 cases ... do not rise to the lev
el of plausibility.” Santiago v. City of New York, 2009
WL 2734667, at *3, 2009 U.S. Dist. LEXIS 75372, at *7
(E.D.N.Y. Aug. 18, 2009) (dismissing Monell claim); see
Plair, 789 F. Supp. 2d at 469 (collecting cases). “Furthermore,
it is well established that a single incident does not give rise to
an unlawful practice by subordinate officials ‘so permanent
and well-settled as to constitute ‘custom or usage.’ ” Plair,
789 F. Supp. 2d at 469 (quoting City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988) and citing Sorlucco v. New York City
Police Department, 971 F.2d 864, 870 (2d Cir. 1992) 12 and
Anderson, 657 F. Supp. at 1574 13 ).
12 (municipality may not be held liable under Section
1983 for isolated unconstitutional acts of its
employees)
13 (“plaintiff cannot infer a policy from the alleged
violation of his own civil rights.”)
For the most part, Plaintiff relies on conclusory allegations
arising from a single incident to fill the gaps in his complaint
between Guco’s conduct and a Village policy, custom or
practice that caused Plaintiff a constitutional injury. However,
Plaintiff alleges that the Village “had prior notice of the
vicious propensities of defendant Guco but took no steps
to train him, correct his abuse of authority, or discourage
his unlawful use of authority.” Compl. ¶ 29. While a §
1983 failure to train or supervise claim cannot be grounded
on barebones, conclusory assertions, see De Ratafia, 2013
WL 5423871, at *9, Plaintiff has alleged enough to allow
his failure to train or supervise claim against the Village
to continue. Whether Plaintiff can establish the required
elements of the claim can be tested after discovery. For
present purposes, Defendants' motion on this ground is
denied.
e. Section 1983 Illegal Vehicle Search Claim
*6 Defendants assert that Plaintiff’s Section 1983 illegal
search claim should be dismissed because he alleges that after
he was removed from the vehicle, he was “facing away from
the driver seat” and only heard “noises” that sounded like
Guca was “going through” plaintiff’s vehicle. These facts,
Defendants contend, are insufficient to support a plausible
claim that Guca unlawfully searched Plaintiff’s vehicle.
1. Fourth Amendment
Accepting the alleged facts as true, and drawing reasonable
inferences in Plaintiff’s favor, there are sufficient factual
allegations from which a reasonable fact finder could
conclude that Plaintiff heard Guca enter Plaintiff’s vehicle
while Plaintiff was lying on the hood. Given these
circumstances, it would be a reasonable inference that Guca
searched the vehicle while he was in it. Further, accepting
Plaintiff’s allegations as true, Officer Guca lacked a legal
justification to search Plaintiff’s vehicle. Thus, the allegations
are sufficient to support a plausible Fourth Amendment illegal
search claim. Defendants' motion on this ground is denied.
2. Fifth, Eighth, Ninth and Fourteenth Amendments
However, Plaintiff asserts his illegal search claim not only
under the Fourth Amendment, but also the Fifth, Eighth,
Ninth and Fourteenth Amendments.
A. Fifth Amendment
The Fifth Amendment has no application in this case. The
Fifth Amendment solely governs the conduct of federal
government and federal employees, and does not regulate the
activities of state officials or state actors. Maddox v. Fowler,
2015 WL 4366222, at *10 (N.D.N.Y. July 16, 2015). Because
Plaintiff's lawsuit does not allege a deprivation of his rights
by the federal government, all claims premised upon the Fifth
Amendment are dismissed.
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B. Eighth Amendment
Likewise, the Eighth Amendment has no application in this
case. The Eighth Amendment prohibition on the infliction
of cruel and unusual punishments applies only to those
individuals convicted of crimes. Wilson v. Seiter, 501 U.S.
294, 297 (1991). Because the facts do not indicate that
Plaintiff was convicted of a crime, the Eighth Amendment
claim is inapplicable. Thus, all claims premised upon the
Eighth Amendment are dismissed.
C. Ninth Amendment
The Ninth Amendment provides no basis for Section 1983
liability. The Ninth Amendment “is recognized as a rule of
construction, not one that protects any specific right, [and
thus] no independent constitutional protection is recognized
which derives from the Ninth Amendment and which may
support a § 1983 cause of action.” Rini v. Zwirn, 886 F. Supp.
270, 289 (E.D.N.Y. 1995)(citing Laurence H. Tribe, American
Constitutional Law § 11–3, at 774–75 (2d ed. 1988)); see
Barnett v. Carberry, 420 Fed.Appx. 67, 69 (2d Cir. 2011), 14
cert. denied, 132 S. Ct. 248 (2011); Bussey v. Phillips, 419
F.S upp.2d 569, 586 (S.D.N.Y. 2006). 15 Thus, all claims
premised upon the Ninth Amendment are dismissed.
14 (holding that the Ninth Amendment does not
provide “an independent source of individual
rights; rather, it provides a rule of construction that
we apply in certain cases”) (citation omitted)
15 (“[T]he Ninth Amendment refers only to
unenumerated rights, while claims under § 1983
must be premised on specific constitutional
guarantees.”)
D. Fourteenth Amendment
The Fourteenth Amendment also does not apply to Plaintiff’s
illegal search claim. Because the Fourth Amendment provides
an explicit textual source of constitutional protection for
Plaintiff’s alleged constitutional injury, he has no basis for
a due process claim based upon the alleged illegal search
of his vehicle. Albright v. Oliver, 510 U.S. 266, 273 (1994).
Accordingly, Plaintiff’s Fourteenth Amendment due process
claim based upon the alleged search of Plaintiff’s vehicle is
dismissed.
f. Section 1983 False Arrest Claim
*7 The Complaint alleges that Defendants violated
Plaintiff’s Fourth and Fourteenth Amendment rights “by
unlawfully and wrongfully seizing plaintiff’s person without
probable cause ... in clear violation of due process.” Compl.
¶ 34 (a). Defendants argue that this claim must be dismissed
because (1) Guco had probable cause to detain Plaintiff for
purposes of issuing him a traffic ticket; (2) the issuance of a
traffic ticket or court summons does not constitute a seizure
under the Fourth Amendment for purposes of establishing
a false arrest claim; (3) the facts are insufficient to support
a false arrest claim because there are no allegations that
Guco handcuffed Plaintiff, used a weapon to detain him, or
transported him away from the scene of the traffic stop.
1. Fourth Amendment
While “[c]ourts ... have repeatedly held that the issuance of
a traffic ticket or court summons alone does not constitute
a seizure under the Fourth Amendment for the purposes of
establishing a false arrest ... claim,” LoSardo v. Ribaudo,
2015 WL 502077, at *5 (E.D.N.Y. Feb. 5, 2015), Plaintiff’s
allegations are susceptible to a reading that he was unlawfully
arrested within the meaning of the Fourth Amendment when
he was physically removed from his vehicle without reason,
“slammed” across the hood of the vehicle, patted down, and
told not to move. These facts, accepted as true, are sufficient
to present a plausible claim that Plaintiff was falsely arrested
for a period of time beyond that which was required for Guco
to issue Plaintiff a traffic ticket. See Cross v. City of Albany,
2016 WL 6106476, at *3 (N.D.N.Y. Oct. 19, 2016); 16 see
also LoSardo, 2015 WL 502077, at *5. 17
16 (“Under § 1983, the issuance of a pre-arraignment,
non-felony summons requiring a later court
appearance, without further restrictions, does
not constitute a Fourth Amendment seizure for
purposes of establishing a false arrest claim. On
the other hand, temporary detention of individuals
during the stop of an automobile by the police,
even if only for a brief period and for a limited
purpose, constitutes a ‘seizure’ of ‘persons’ under
the Fourth Amendment.”) (interior quotation marks
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and brackets omitted; citing Whren v. United States,
517 U.S. 806, 809–10 (1996) and Burg v. Gosselin,
591 F.3d 95, 97 (2d Cir. 2010))
17 (To establish a false arrest claim under § 1983, a
“plaintiff must show: (1) the defendant intended to
confine the plaintiff, (2) the plaintiff was conscious
of the confinement, (3) the plaintiff did not consent
to the confinement, and (4) the confinement was
not otherwise privileged.”)
Moreover, “[t]emporary detention of individuals during the
stop of an automobile by the police, even if only for a
brief period and for a limited purpose, constitutes a ‘seizure’
of ‘persons’ [under the Fourth Amendment].” Whren v.
United States, 517 U.S. 806, 809–10 (1996). “Automobile
‘stops must be justified by probable cause or a reasonable
suspicion, based on specific and articulable facts, of unlawful
conduct.’ ” Cross, 2016 WL 6106476, at *3 (quoting United
States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994)). Taking
Plaintiff’s factual allegations as true, Guco neither had
probable cause nor reasonable suspicion to believe that
Plaintiff had committed “a traffic offense—however minor.”
Scopo, 19 F.3d at 782. Under such circumstances, Plaintiff
states a plausible Fourth Amendment claim of false arrest. See
Cross, 2016 WL 6106476, at *4. Accordingly, Defendants'
motion on this ground is denied.
2. Fourteenth Amendment
However, the Fourteenth Amendment Due Process Clause
does not apply to Plaintiff’s false arrest claim because the
Fourth Amendment provides an explicit textual source of
constitutional protection for Plaintiff’s alleged constitutional
injury caused by that arrest. Albright, 510 U.S. at 273;
see Gerstein v. Pugh, 420 U.S. 103, 125 n. 27 (1975). 18
Accordingly, Plaintiff’s Fourteenth Amendment due process
claim based upon his arrest is dismissed.
18 (“The Fourth Amendment was tailored explicitly
for the criminal justice system, and it[ ] ... always
has been thought to define the ‘process that is
due’ for seizures of person or property in criminal
cases....”)
g. Section 1983 False Testimony Claim—Officer Guca
*8 Plaintiff alleges that his rights under the Fifth and
Fourteenth Amendment Due Process Clauses, and an
undefined right under the Sixth Amendment, were violated
because Guca testified falsely at his traffic court trial. Compl.
¶¶ 34(b) & (c). Defendants contend that the claim cannot
survive because the Supreme Court has held that police
officers have absolute immunity from liability for damages
arising out of false testimony. Def. MOL, p. 15 (citing, inter
alia, Briscoe v. La Hue, 460 U.S. 325 (1983)). In opposition,
Plaintiff argues:
5th Amendment Claim: the false data is the testimony of the
defendant Guca-clearly it was impossible for the defendant
to see the traffic light as the plaintiff was found not guilty
after the conclusion of the trial. Proof of the location of
the police car and the ability to see the traffic light will be
ascertained at the trial of this matter with pictures and/or
videos.
* * *
14th Amendment Claim: This claim too should not be
dismissed that [sic] plaintiff in the complaint and in his
attached affidavit have [sic] shown to the court that his due
process [sic] was violated.
Pl. Mem. L. p. 7. Plaintiff neither offers an argument directed
to the Sixth Amendment, nor addresses Briscoe and its
progeny.
The immunity explained in Briscoe is dispositive of Plaintiff’s
claim.
[T]he principles underlying judicial and prosecutorial
immunity “also apply to witnesses, who perform a
somewhat different function in the trial process but whose
participation in bringing the litigation to a just—or possibly
unjust—conclusion is equally indispensable.” Briscoe v. La
Hue, 460 U.S. 325, 345–46, 103 S. Ct. 1108, 75 L.Ed.2d
96 (1983). In Briscoe, the Supreme Court expressly held
that police officers have absolute immunity from liability
for damages arising out of false testimony. In so ruling,
the Supreme Court “acknowledged the danger that a police
officer or other witness may provide purposefully false
testimony and escape liability,” Rolon v. Henneman, 517
F.3d 140, 145 (2d Cir. 2008)(citing Briscoe, 460 U.S. at
345), as well as “the possibility that, despite the truth-
finding safeguards of the judicial process, some defendants
might ... be unjustly convicted on the basis of knowingly
false testimony by police officers.” Briscoe, 46 U.S. at
345. However, the Court was concerned that without
such immunity, “[a] witness's apprehension of subsequent
damages liability might induce ... self-censorship,” which
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might “deprive the finder of fact of candid, objective, and
undistorted evidence.” Id. at 333.
Paige v. City New York, 2011 WL 65667, at *5 (E.D.N.Y. Jan.
7, 2011).
“In light of the foregoing, it is clear that, to the extent that
Plaintiff's allegations against Officer [Guco] suggest that this
police officer may have perjured himself during [Plaintiff’s]
trial ..., Plaintiff cannot recover damages for this perjury.”
Paige, 2011 WL 65667, at *6 (citing Briscoe, 460 U.S. at
345–46). Thus, Defendants' motion in this regard is granted,
and Plaintiff’s Section 1983 False Testimony claim against
Officer Guca is dismissed.
h. Section 1983 False Testimony Conspiracy Claim
Plaintiff also alleges in conclusory fashion that “defendants”
denied him his “Fifth and Fourteenth Amendment rights ...
by conspiring to suborn perjured police testimony.” Compl.,
¶ 34(b)(iii). However, Plaintiff fails to plead sufficient facts
plausibly suggesting a “meeting of the minds” between any
defendants regarding Guca’s testimony at Plaintiff’s trial.
See Farag v. U.S., 587 F. Supp. 2d 436, 470–71 (E.D.N.Y.
2008). 19 Moreover, because there is no viable claim against
Officer Guco for providing false testimony, there is no viable
conspiracy claim based upon an agreement to provide this
testimony. See Droz v. McCadden, 580 F.3d 106, 109 (2d Cir.
2009). 20 Accordingly, the Section 1983 conspiracy claim
based upon an alleged agreement between the defendants to
suborn perjury at Plaintiff’s trial is dismissed.
19 (To establish a § 1983 civil rights conspiracy, “a
plaintiff must, inter alia, ‘provide some factual
basis supporting a meeting of the minds, such
as that defendants entered into an agreement,
express or tacit, to achieve the [violation of
plaintiff's constitutional rights].’ ”) (quoting Romer
v. Morgenthau, 119 F. Supp.2d 346, 363 (S.D.N.Y.
2000) (internal quotation marks omitted))
20 (Because Plaintiff failed to establish an underlying
Section 1983 cause of action, “the claim for
conspiracy also fails.”).
I. Section 1983 Concealment of Evidence Claim
*9 Plaintiff’s allegation that the Defendants concealed
information that would have assisted him in his defense,
Compl. ¶ 34(b)(iv), amounts to nothing more than a
conclusory allegation. There is no specific factual allegation
supporting a plausible claim in this regard. Accordingly, the
motion is this regard is granted and the claim based upon
the alleged concealment of exculpatory material is dismissed
without prejudice to repleading.
j. Section 1983 Excessive Force—Due Process Claim
Plaintiff’s claim that he was denied constitutional due process
because he w as subjected to excessive force, Compl.
¶ 34(b)(v), is subsumed within his Fourth Amendment
excessive force claim. Because the Fourth Amendment
provides an explicit textual source of constitutional protection
for Plaintiff’s alleged constitutional injury, he has no basis for
a separate due process claim based upon the use of excessive
force. Albright, 510 U.S. at 273. Accordingly, the Fourteenth
Amendment due process claim based on the excessive use of
force is dismissed.
k. Section 1983 Encouraging Prosecution to Use
Perjured Testimony Claim
Plaintiff contends that his constitutional due process rights
were violated by the defendants “permitting and encouraging
known perjured testimony to be produced at the trial
by the prosecution.” Compl. ¶ 34 (c). Plaintiff has
provided insufficient factual allegation indicating that any
of defendants had control over the testimony produced at
the trial by the prosecution, or that any of the defendants
encouraged known perjured testimony to be produced.
Moreover, as indicated above police officers have absolute
immunity from damages for alleged perjured testimony at
trial. Accordingly, the claim in this regard is dismissed.
l. First Amendment Claim
In the Complaint, Plaintiff makes reference to the First
Amendment by alleging that the action arises under “the
provisions” of this amendment. Comp. ¶ 7. However, Plaintiff
fails to allege facts plausibly suggesting that his rights
under the First Amendment were violated. Accordingly, the
First Amendment claim is dismissed without prejudice to
repleading.
m. State Law Claims—Notices of Claim
Defendants contend that Plaintiff’s state law claims for false
arrest, assault and battery, malicious prosecution, abuse of
process, negligence, gross negligence, and illegal search
should be dismissed because Plaintiff failed to comply
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with the notice-of-claim requirements of New York law.
Defendants argue that only two of the four Notices of Claim
attached to the Complaint were served on the Village; 21 the
two that were served on the Village were “Amended” Notices
of Claim dated August 3, 2015, which is more than 90 days
after the April 22, 2015 traffic stop; Plaintiff never moved for
leave to serve a late Notice of Claim, or to have his Amended
Notices of Claim deemed timely served nunc pro tunc to July
2, 2015; none of the Notices of Claim allege that Plaintiff was
pulled out of his vehicle, slammed on the hood, patted down,
and had his vehicle searched; even if Plaintiff had served
the July 2, 2015 Notice of Claim (Compl. Ex. A, p. 1) on
the Village, he would still be barred from pursuing his state
law claims because this Notice of Claim pertained to a traffic
ticket allegedly issued on April 7, 2015, not April 22, 2015,
and did not include any allegations about a search, a seizure,
or the use of force. Thus, Defendants contend all state law
claims must be dismissed.
21 Defendants contend that Plaintiff never served the
July 2, 2015 Notice of Claim on the Village (Dkt.
1-1 Page 1 of 4), nor did the Village receive that
Notice of Claim by any method. Defendants also
contend that Plaintiff never served the August 3,
2015 “Amended” Notice of Claim at Docket 1-1
Page 2 of 4.
*10 In opposition, Plaintiff argues that he inadvertently
omitted from the Complaint two July 2, 2015 Notices of
Claim. He attaches the two Notices of Claim to his affidavit
that he submitted in opposition to Defendants' motion.
Although the Court is supposed to limit its review to the
Complaint and documents attached thereto, and despite that
it is somewhat suspect that Plaintiff served three Notices of
Claim on the Village on July 2, 2015 because he asserts in
the Complaint that he served a single Notice of Claim on
the Village on this date, see Compl. ¶ 39, 22 the Court will
examine the Notices of Claim attached to Plaintiff’s affidavit
to resolve this aspect of the motion.
22 (“On or about July 2, 2015, the plaintiff caused a
written verified Notice of Claim to be filed with an
served on the proper officer, agents and employees
[sic] the Defendants....”)(emphasis added).
The two Notices of Claim attached to Plaintiff’s affidavit are
both against “Yorkville Police Dept., Officer Guco,” and both
allege that the “nature of the claim” is “§ 69.01 Liability for
Negligence.” Both indicated that they were executed on July
2, 2015, and both contain a stamp indicating that they were
served on the Oneida County Clerk on July 2, 2015. Like
the July 2, 2015 Notice of Claim attached to the Complaint
(Compl. Ex. A, p. 1), both concern an April 7 th , 2015 traffic
stop during which Plaintiff asserts that he was ticketed for
running a red light even though the light was yellow. Also like
the July 2, 2015 Notice of Claim attached to the Complaint,
Plaintiff alleges in both that Guco caused him to become
fearful because Guco was yelling at Plaintiff for running a
red light, that Guco lied about the facts underlying the traffic
ticket at trial, and that when Guco was asked at trial “about
his eyes bulging and sweating, he stated he did not know
why, but he told the police Chief DeLuca that it was rain [sic]
when he admitted in trial that it was not raining.” Neither
Notice of Claim alleges that Officer Guco pulled Plaintiff
out of the car, made Plaintiff lie across the vehicle’s hood,
patted Plaintiff down, or searched through the vehicle. Id.
For relief, Plaintiff seeks “Actual Damages-for the emotional
distress and nightmare [sic]” and “Civil Rights Damages-
Police officer violation of civil rights.”
In reply, Defendants argue that even if Plaintiff served all
six of the Notices of Claim on the Village, 23 his state law
claims should be dismissed because none of the Notices
of Claim satisfy the statutory requirements that a claimant
specify the nature of the claim, the manner in which it arose,
and the damage or injury sustained. Def. Reply Mem. L. p.
5. Further, Defendants contend that Plaintiff’s three July 2,
2015 Notices of Claim all pertain to an April 7, 2015 traffic
stop whereas the instant action arises from an April 22, 2015
traffic stop. Defendants assert that while the three August 3,
2015 Amended Notices of Claim pertain to the April 22, 2015
traffic stop, the Amended Notices of Claim were untimely
because more than 90 days had elapsed since the April 22,
2015 traffic stop.
23 Also attached to Plaintiff’s affidavit are illegible
U.S. Postal Service certified mail receipts which,
Plaintiff contends, proves that “all Notices of
Claims [sic] were filed within 90 days.” Pl. Mem.
L. p. 8.
*11 “[I]n a federal court, state notice-of-claim statutes apply
to state-law claims.” Hardy v. New York City Health &
Hospitals Corp., 164 F.3d 789, 793 (2d Cir. 1999) (citing
Felder v. Casey, 487 U.S. 131, 151 (1988)). Under New York
law, a notice of claim is a mandatory condition precedent to
bringing a tort claim against a municipality. See N.Y. CPLR
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§ 9801; N.Y.Gen. Mun. Law §§ 50–e, 50–I; Hillary v. Village
of Potsdam, 2015 WL 902930, at *9–10 (N.D.N.Y. Mar.
3, 2015); Brennan v. Albany Cnty., 2005 WL 2437026, *6
(N.D.N.Y. Sept. 30, 2005). New York General Municipal Law
§ 50-e requires service of a notice of claim within ninety days
after the claim arises. See N.Y. Gen. Mun. Law § 50-e(1)(a).
Among other things, a notice of claim must state the nature of
the claim and “the time when, the place where and the manner
in which the claim arose[.]” N.Y. Gen. Mun. Law § 50-e(2).
This notice requirement is designed “[t]o enable authorities
to investigate, collect evidence and evaluate the merit of
a claim.” Brown v. City of New York, 95 N.Y.2d 389,
392-93 (N.Y. 2000). “An adequate notice of claim allows
the governmental entity ‘to examine a potential claim to
determine whether such claim should be settled or satisfied
without subjecting the parties to costly litigation.’ ” Javed
v. Shuang Zhang, 872 F. Supp. 2d 194, 198 (N.D.N.Y.
2012)(quoting Mroz v. City of Tonawanda, 999 F. Supp. 436,
453 (W.D.N.Y. 1998)).
“The Second Circuit has ... determined that, not only does
the General Municipal Law control when a plaintiff sues a
[municipality] for tortious conduct, but it also controls those
claims against any employee of a city ‘if the municipality
is required to indemnify the defendant pursuant to the
General Municipal Law or any other statutory provision and
is therefore the real party in interest.’ ” Kennedy v. City
of Albany, 2015 WL 6394513, at *2 (N.D.N.Y. Oct. 22,
2015)(quoting Conte v. Cty. of Nassau, 596 Fed. Appx. 1, 5
(2d Cir. 2014)(interior quotation marks and citation omitted)).
Such is the circumstance here. General Municipal Law § 50–
j provides that a municipality “shall be liable for, and shall
assume the liability to the extent that it shall save harmless,
any duly appointed police officer of such municipality ...
for any negligent act or tort, provided such police officer,
at the time of the negligent act or tort complained of,
was acting in the performance of his duties and within the
scope of his employment.” N.Y. Gen. Mun. Law § 50-
j(1); see also LaGrange v. Ryan, 142 F. Supp.2d 287, 295
(N.D.N.Y. 2001). 24 Thus, the notice must accurately identify
the individuals against whom the claim is brought. See D.C.
v. Valley Cent. Sch. Dist., 2011 WL 3480389 at *2 (S.D.N.Y.
June 29, 2011). 25
24 (stating that notice of claim requirements are not
limited to just negligence claims but must also be
served for “intentional tort actions against police
officers”).
25 (noting that “the Court must construe the notice
of claim strictly to ensure that the defendants are
properly named as respondents in the notice of
claim”)
“Notice of claim requirements are construed strictly by New
York state courts. Failure to comply with these requirements
ordinarily requires a dismissal for failure to state a cause of
action.” Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789,
793-94 (2d Cir. 1999) (internal quotation marks and citations
omitted); see also Davidson v. Bronx Mun. Hosp., 62 N.Y.2d
59, 62 (N.Y. 1984); 26 Hillary v. Village of Potsdam, 2015 WL
902930, at *9 (N.D.N.Y. Mar. 3, 2015)(same). “The burden
is on the plaintiff to demonstrate compliance with the Notice
of Claim requirement.” Horvath v. Daniel, 423 F. Supp.2d
421, 423 (S.D.N.Y. 2006). Although a Notice of Claim need
not provide the required information with “literal nicety or
exactness,” Phillipps v. N.Y. City Transit Auth., 68 A.D.3d
461, 462 (1st Dep't 2009), “[a]ny theory of liability omitted
from the notice of claim may not be included in a subsequent
lawsuit.” Hazan v. City of New York, 1999 WL 493352, at *6
(S.D.N.Y. July 12, 1999).
26 (“failure to comply with provisions requiring
notice and presentment of claims prior to the
commencement of litigation requires dismissal”)
*12 Turning first to the three July 2, 2015 Notices of
Claim, and assuming for purposes of argument that these were
served on Defendants, they failed to provide sufficient factual
allegations to put Defendants on notice of the state law claims
alleged in this action. These Notices of Claim all pertain to
a traffic ticket issued to Plaintiff on April 7, 2015, a date
different than the one underlying the claims in the instant
action. Although Plaintiff contends that his use of the April 7,
2015 date was a mistake, he points to no authority requiring
a recipient of a Notice of Claim to analyze it to determine
whether it might be referring to a different event then indicated
in the notice of claim. By using the wrong date, Plaintiff’s
July 2, 2015 Notices of Claim deprived the Village of the
ability to collect evidence, evaluate the merits of the state
law claims alleged in this case, and determine whether these
claims should be settled or satisfied without subjecting the
parties to costly litigation. Thus, the July 2, 2015 Notices of
Claim provide an insufficient predicate for any of the state
law claims asserted here.
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Turning to the August 3, 2015 Notices of Claim, each was
drafted and verified on August 3, 2015. See Compl., Ex. A, pp.
2-4. August 3, 2015 is more than 90 days past April 22, 2015,
the date of the traffic ticket underlying the state law claims
of false arrest, assault and battery, and illegal search alleged
in this action. Although denominated as “Amended Notices
of Claim,” these Notices of Claim do not indicate what they
were intended to amend. Because the August 3, 2015 Notices
of Claim are based upon a different event than the July 2,
2015 Notices of Claim, and because Plaintiff apparently never
moved for leave to serve a late Notice of Claim or to have
his August 3, 2015 Notices of Claim deemed served nunc pro
tunc to an earlier time, the August 3, 2015 Notices of Claim
are untimely as to the state law claims of false arrest, assault
and battery, and illegal search. These claims are dismissed as
to all Defendants.
Moreover, the August 3, 2015 Notices of Claim fail to provide
sufficient factual predicates upon which state law claims
of negligence and gross negligence could be based. These
Notices of Claim allege only that Guco pulled Plaintiff over,
gave him a ticket for running a red light, and then lied
about the facts at the ensuing trial. These factual allegations
are insufficient to put Defendants on notice of a basis for
the claims of negligence or gross negligence, see Fiedler
v. Incandela, 2016 WL 7406442, at *14 (E.D.N.Y. Dec. 6,
2016), 27 and thus deprived Defendants of the ability to
collect evidence, evaluate the merits of the alleged negligence
or gross negligence claims, and determine whether these
claims should be settled or satisfied without subjecting
the parties to costly litigation. Consequently, the August
3, 2015 Notices of Claim are insufficient to serve as
necessary predicates for the state law claims of negligence
and gross negligence, and these claims are dismissed as to all
Defendants.
27 The Eastern District wrote in Friedler,
To prevail on a claim for negligence under New
York law, “a plaintiff must establish (1) the
existence of a duty on the defendant's part as
to the plaintiff; (2) a breach of that duty; and
(3) resultant injury to the plaintiff.” [Frederique
v. County of Nassau, 168 F. Supp. 3d 455, 484
(E.D.N.Y. 2016)] (internal quotation omitted);
see also [Vega v. Fox, 457 F. Supp.2d 172, 183
(S.D.N.Y. 2006)](“The existence of a duty of
care is a legal, policy-laden declaration reserved
for judges.”) (internal quotation omitted). The
defendant's duty must not be “merely a general
duty of care to society but a specific duty to
the plaintiff, for ‘without a duty running directly
to the injured person there can be no liability
in damages, however careless the conduct or
foreseeable the harm.’ ” Breitkopf v. Gentile, 41
F.Supp.3d 220, 272 (E.D.N.Y. 2014) (quoting
Lauer v. City of New York, 95 N.Y.2d 95, 100,
711 N.Y.S.2d 112, 733 N.E.2d 184 (2000)). It is
well established that “a plaintiff may not recover
under general negligence principles for a claim
that law enforcement officers failed to exercise
the appropriate degree of care in effecting an
arrest or initiating a prosecution.” Bernard v.
United States, 25 F.3d 98, 102 (2d Cir. 1994).
Moreover, “[a] claim of harm predicated solely
on intentional acts may not give rise to a claim
of negligence.” Ortiz v. City of New York, No. 15
Civ. 2206, 2016 WL 7009059, at *3 (S.D.N.Y.
Nov. 30, 2016) (citing United Nat'l Ins. Co. v.
Tunnel, Inc., 988 F.2d 351, 353 (2d Cir. 1993)).
Fiedler, 2016 WL 7406442, at *14.
*13 However, one of the August 3, 2015 Notices of Claim
could be construed as providing notice of the intentional
torts of malicious prosecution and abuse of process. See
Compl., Ex. A, p. 2. “Malicious prosecution and abuse of
process claims accrue when there is a favorable termination
of criminal proceedings against the plaintiff.” Oka v. County
of Suffolk, 2014 WL 198821, at *4 (E.D.N.Y. Jan. 13, 2014);
see TADCO Constr. Corp. v. Dormitory Auth. of NY, 700 F.
Supp.2d 253, 273 (E.D.N.Y. 2010). 28 The Complaint alleges
that “[f]ollowing the bench trial on or about June 29, 2015,
Plaintiff was advised that the traffic ticket was dismissed and/
or that he was not guilty of the infraction.” Compl. ¶ 21.
Because June 29, 2015 is less than 90 day s before August 3,
2015, the August 3, 2015 Notice of Claim alleging “Liability
for Intentional Torts” was timely filed as to the malicious
prosecution and abuse of process claims. Accordingly, the
motion is denied as to the malicious prosecution and abuse
of process claim brought against Officer Guca, and, under
a theory of respondeat superior liability, against the Village
of Yorkville. See Cort v. Marshall's Dept. Store, 2015 WL
9582426, at *2 (E.D.N.Y. Dec. 29, 2015); 29 see Tchatat v.
City of New York, 2015 WL 5091197, at *17 (S.D.N.Y. Aug.
28, 2015); 30 Cort, 2015 WL 9582426, at *3. 31 However,
DeLuca is not mentioned in any of the August 3, 2015 Notices
of Claim. Therefore, all state law claims against DeLuca are
dismissed.
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28 (“[C]laims for malicious prosecution and abuse of
process do not accrue until the underlying action
which is the basis for the claim is terminated in the
plaintiff's favor by dismissal.”)
29 (“[I]n order to state a respondeat superior claim,
a plaintiff must plead facts that plausibly allege
that the predicate torts were committed ‘within the
scope of the employee's duties to the employer and
was thus in furtherance of the employer's interests.’
”)(quoting Doe v. Alsaud, 12 F. Supp. 3d 674, 677
(S.D.N.Y. 2014))
30 (Respondeat superior applies to a tort committed
by an employee in the course of the performance
of his or her duties, even if such duties are
carried out in an irregular fashion or with disregard
of instructions.”) (internal citation and quotation
marks omitted), recons. granted in part by, 2015
WL 6159320 (S.D.N.Y. Oct. 20, 2015)
31 (“The same principle applies equally to intentional
torts, including assault and battery; for respondeat
superior to apply, the employee must have
committed the intentional tort while acting within
the scope of employment.”)
n. State Law Malicious Prosecution and Abuse of
Process Claims
Defendants argue that if Plaintiff’s state law claims are not
dismissed for failure to file appropriate notices, the claims
for malicious prosecution and abuse of process should be
dismissed because the Complaint fails to allege sufficient
facts to plausibly satisfy the elements of either claim.
1. Malicious Prosecution
The elements of claim for malicious prosecution under New
York law are: “ ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’ ” Battisti v. Rice, 2017 WL 78891, at *9
(E.D.N.Y. Jan. 9, 2017)(quoting Manganiello v. City of N.Y.,
612 F.3d 149, 161 (2d Cir. 2010) (internal quotation marks
and citations omitted)). “Unlike federal law, a seizure is not
required for a malicious prosecution claim under state law.”
Mangino v. Inc. Village of Patchogue, 739 F. Supp. 2d 205,
229 (E.D.N.Y. 2010), on reconsideration in part, 814 F. Supp.
2d 242 (E.D.N.Y. 2011).
The first three elements could plainly be established based
upon the allegations that Plaintiff was pulled over for running
a red light when the light was yellow, Guco advanced the
prosecution by issuing a ticket, and the ticket was dismissed
following trial. See id. 32 The fourth element, actual malice
as a motivation for defendant’s actions, could reasonably
be inferred from the allegations that Plaintiff was ticketed,
and treated harshly, because of his race. These allegations
are sufficient to give Defendants fair notice of Plaintiff’s
malicious prosecution claim and the grounds upon which it
rests. See Blot v. Town of Colonie, 2017 WL 61943, at *17
(N.D.N.Y. Jan. 5, 2017). 33 The motion on this ground is
denied.
32 (“New York law does not require a malicious
prosecution plaintiff to prove her innocence, or
even that the termination of the criminal proceeding
was indicative of innocence. Instead, the plaintiff's
burden is to demonstrate a final termination that is
not inconsistent with innocence.”)
33 (“[T]he Supreme Court has held that ... the pleading
standard under Fed. R. Civ. P. 8(a)(2) requires that
the pleading contain a statement that ‘give[s] the
defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.’ ”)(quoting
Jackson v. Onondaga Cnty., 549 F. Supp.2d 204,
212, n. 17 (N.D.N.Y. 2008)(in turn citing Supreme
Court cases)(emphasis in Bolt)).
2. Abuse of Process
*14 The elements of a claim for abuse of process under New
York law are that a defendant: “(1) employs regularly issued
legal process to compel performance or forbearance of some
act (2) with intent to do harm without excuse or justification,
and (3) in order to obtain a collateral objective that is outside
the legitimate ends of the process.” Savino v. City of N.Y., 331
F.3d 63, 76 (2d Cir. 2003).
[A] claim of malicious abuse of process requires process be
issued for a collateral objective outside the legitimate ends
of process. In evaluating this element, the Second Circuit
expressly distinguishes between a “malicious motive”
and an “improper purpose”; only the latter suffices to
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meet the “collateral objective” prong of the abuse of
process standard. See Savino, 331 F.3d at 77 (“In order
to state a claim for abuse of process, a plaintiff must
establish that the defendants had an improper purpose in
instigating the action.... ‘[I]mproper motive is not enough.’
” (quoting Dean v. Kochendorfer, 237 N.Y. 384, 143 N.E.
229 (1924))); see also Roeder v. Rogers, 206 F.Supp.2d
406, 414 (W.D.N.Y. 2002) (dismissing abuse of process
claim on summary judgment because “malicious motive,
without more, does not give rise to [such] a cause of
action” (citation and quotation marks omitted)); Curiano
v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466, 469 N.E.2d
1324, 1326–27 (1984) (“A malicious motive alone ... does
not give rise to a cause of action for abuse of process.”).
“Accordingly, to state a claim for abuse of criminal process,
it is not sufficient for a plaintiff to allege that the defendants
were seeking to retaliate against him by pursuing his arrest
and prosecution. Instead, he must claim that they aimed to
achieve a collateral purpose beyond or in addition to his
criminal prosecution.” Savino, 331 F.3d at 77.
Mangino, 739 F. Supp. 2d at 232.
The Complaint fails to allege facts that could plausibly
establish the “collateral objective” prong of the abuse of
process standard. The state law abuse of process claim is
dismissed without prejudice to repleading.
o. Punitive Damages
Defendants argue that Plaintiff’s demand for punitive
damages must be struck because municipalities are immune
from punitive damages, and because the Complaint fails to
allege conduct by Guco 34 that warrants an award of punitive
damages.
34 Defendants make the same argument as to DeLuca,
but the Court need not reach this issue because all
claims against DeLuca have been dismissed.
Defendants are correct that a municipality is immune from the
imposition of punitive damages under 42 U.S.C. § 1983, City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981);
Ciraolo v. City of N.Y., 216 F.3d 236, 239–40 (2d Cir. 2000),
and state law. Clark-Fitzpatrick, Inc. v. Long Island R.R. Co.,
70 N.Y.2d 382, 386 (N.Y. 1987). Thus, Plaintiff’s demand for
punitive damages against the Village is struck.
As to Guco’s liability for punitive damages, the law provides
that “[t]o recover punitive damages under § 1983 against a
government official in his individual capacity, the Plaintiff
must show that the official acted with a malicious or evil intent
or in callous disregard of the Plaintiff's federally protected
rights.” Pritchard v. Town of New Hartford, 2016 WL
4523986, at *4 n.2 (N.D.N.Y. Aug. 22, 2016)(citing Smith v.
Wade, 461 U.S. 30 (1983)). Similarly, “[t]o obtain punitive
damages in ordinary tort actions, a New York plaintiff
not only must show that the defendant committed a tort,
but also must demonstrate the existence of ‘circumstances
of aggravation or outrage, such as spite or ‘malice,’ or a
fraudulent or evil motive on the part of the defendant, or such
a conscious and deliberate disregard of the interests of others
that the conduct may be called wilful or wanton.’ ” Carvel
Corp. v. Noonan, 350 F.3d 6, 24 (2d Cir. 2003), certified
question answered, 818 N.E.2d 1100 (N.Y. 2004)(quoting
Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d
466, 479 (N.Y. 1993)); see Cookware Co. (USA), LLC
v. Austin, 2016 WL 7378762, at *6 (S.D.N.Y. Dec. 8,
2016)(same).
*15 Accepting Plaintiff’s allegations as true and drawing
all reasonable inferences in his favor, Plaintiff has
presented sufficient factual allegations plausibly supporting
the conclusion that Guco acted with a malicious or evil intent
or in callous disregard of Plaintiff's federal and state rights
when he pulled Plaintiff over, ticketed him without basis,
pulled Plaintiff out of his vehicle and “slammed” him on
the hood, and then continued the prosecution on the traffic
ticket even though there was no basis for it. This is sufficient
to allow the demand for punitive damages against Guco to
proceed. Thus, Defendants' motion in this regard is denied.
V. CONCLUSION
For the reasons discussed above, Defendants' motion to
dismiss [Dkt. # 4] is GRANTED IN PART and DENIED
IN PART. The motion is granted in the following respects:
- All claims against the Village of Yorkville Police
Department are dismissed.
- All claims against Chief DeLuca and Officer Guca in their
official capacities are dismissed.
- All § 1983 claims against Chief DeLuca are dismissed
without prejudice to repleading.
- All claims premised upon the Fifth Amendment are
dismissed.
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- All claims premised upon the Eighth Amendment are
dismissed.
- All claims premised upon the Ninth Amendment are
dismissed.
- The Fourteenth Amendment due process claim based upon
the alleged search of Plaintiff’s vehicle is dismissed.
- The Fourteenth Amendment due process claim based upon
Plaintiff’s arrest is dismissed.
- The Section 1983 False Testimony claim against Officer
Guca is dismissed.
- The Section 1983 conspiracy claim based upon an alleged
agreement between the Defendants to suborn perjury at
Plaintiff’s traffic ticket trial is dismissed.
- The Section 1983 claim based upon the alleged concealment
of exculpatory material is dismissed without prejudice to
repleading.
- The Section 1983 Fourteenth Amendment due process claim
based on the excessive use of force is dismissed.
- The Section 1983 Fourteenth Amendment due process
claim based on the allegation that Defendants permitted
and encouraged perjured testimony to be produced by the
prosecution at Plaintiff’s traffic ticket trial is dismissed.
- The Section 1983 First Amendment claim is dismissed
without prejudice to repleading.
- The state law claims of false arrest, assault and
battery, illegal search, negligence, and gross negligence are
dismissed.
- The state law claims of malicious prosecution and abuse of
process are dismissed as to Chief DeLuca.
- The state law claim of abuse of process claims against
Officer Guca and the Village of Yorkville are dismissed
without prejudice to repleading.
- Any demand for punitive damages against the Village of
Yorkville is struck from the Complaint.
The motion is denied in all other the respects.
If Plaintiff intends to replead any of the claims that were
dismissed without prejudice to repleading, an amended
pleading must be filed within ten (10) days of the date of this
Decision and Order. The failure to file an amended pleading
within this period of time will be deemed an abandonment
of all claims dismissed without prejudice to repleading. If an
amended pleading is filed, Defendants are granted leave to
move to dismiss some or all of the repleaded claims.
Based upon the above, the Village of Yorkville Police
Department is terminated as a defendant in this action. If
Plaintiff does not replead any claims against Chief DeLuca
within ten (10) days, he will also be terminated as a defendant
in this action.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 401241
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Tuff v. Village of Yorkville Police Department
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 6:16-CV-00473
Tuff v. Village of Yorkville et al
— N.D.N.Y. Apr. 25, 2016 Docket
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Tuff v. Village of Yorkville Police Department
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Tuff v. Village of Yorkville Police Department
2017 WL 401241 , N.D.N.Y. , Jan. 30, 2017
Related References (1)
2. Tuff v. Village of Yorkville Police Department
2017 WL 2790529 , N.D.N.Y. , June 27, 2017
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Tuff v. Village of Yorkville Police Department
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Terpening v. McGinty, Not Reported in Fed. Supp. (2022)
2022 WL 2115265
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 2115265
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Tammy TERPENING, Plaintiff,
v.
Anthony MCGINTY, in his judicial
and individual capacities, Defendant.
1:21-CV-1215 (GTS/CFH)
|
Signed 06/13/2022
Attorneys and Law Firms
TAMMY TERPENING, Plaintiff, Pro Se, 17 Blair Road, Apt.
6, Kerhonkson, New York 12446.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se civil
rights action filed by Tammy Terpening (“Plaintiff”) against
Anthony McGinty (“Defendant”), is United States Magistrate
Judge Christian F. Hummel's Report-Recommendations
recommending that Plaintiff's claims against Defendant in
his individual and judicial (or official) capacities pursuant to
42 U.S.C. § 1983 and Title VII of the Civil Rights Act of
1964 (“Title VII”) be dismissed with prejudice (and without
prior leave to amend), that Plaintiff's claim against Defendant
in his individual capacity pursuant to the Americans with
Disabilities Act (“ADA”) also be dismissed with prejudice
(and without prior leave to amend), and that Plaintiff's
claim against Defendant in his judicial (or official) capacity
pursuant to the ADA be dismissed without prejudice. (Dkt.
No. 6.) Plaintiff has not filed an Objection to the Report-
Recommendation, and the deadline by which to do so has
expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein,
including Magistrate Judge Hummel's thorough Report-
Recommendation, the Court can find no clear-error in
the Report-Recommendation. 1 Magistrate Judge Hummel
employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. As a result,
the Report-Recommendation is accepted and adopted in its
entirety for the reasons set forth therein. To those reasons, the
Court would add only the following analysis.
1 When no objection is made to a report-
recommendation, the Court subjects that report-
recommendation to only a clear error review. Fed.
R. Civ. P. 72(b), Advisory Committee Notes: 1983
Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there
is no clear error on the face of the record in order to
accept the recommendation.” Id.; see also Batista
v. Walker, 94-CV-2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am
permitted to adopt those sections of [a magistrate
judge's] report to which no specific objection is
made, so long as those sections are not facially
erroneous.”) (internal quotation marks omitted).
Before the issuance of the Report-Recommendation, Plaintiff
filed a motion to appoint counsel and to receive access to
the Court's electronic case filing system. (Dkt. No. 4.) In
addition, after the expiration of the deadline by which to file
an Objection to the Report-Recommendation, Plaintiff filed a
second motion to appoint counsel. (Dkt. No. 7.)
Plaintiff's two motions to appoint counsel are not
accompanied by documentation that substantiates her efforts
to obtain counsel from the public and private sector. Terminate
Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir.
1994); Cooper v. Sargenti Co., Inc., 877 F.2d 170, 172, 174
(2d Cir. 1989). Moreover, because Defendant has not yet
appeared and answered, the Court is unable to determine,
as a threshold matter, whether Plaintiff's claims are likely
to be of substance. Terminate Control Corp., 28 F.3d at
1341. Furthermore, even if the Court were to assume that
Plaintiff's claims are likely to be of substance, the relevant
factors would, and do, weigh decidedly against the granting
of Plaintiff's motions at this time: (a) it appears as though, to
date, Plaintiff has been able to effectively litigate this action
pro se, (b) at this point, it appears that the case does not present
issues that are novel or more complex than those raised in
most pro se civil rights actions, (c) while it is possible that
there will be conflicting evidence implicating the need for
cross-examination at the time of the trial (as is the case in
many civil rights actions brought by pro se litigants), it is
highly probable that this Court will appoint trial counsel at the
final pretrial conference (should this case survive the filing
of any dispositive motions), and (d) the Court is unaware of
any special reasons why appointment of counsel at this time
would be more likely to lead to a just determination of this
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Terpening v. McGinty, Not Reported in Fed. Supp. (2022)
2022 WL 2115265
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litigation. Id.; Hodge, 802 F.2d at 61. For all of these reasons,
Plaintiff's two motions to appoint counsel are denied without
prejudice.
*2 Finally, Plaintiff has not sufficiently shown cause for the
receipt of access to the Court's electronic case filing system.
For this reason, the motion to receive such access is denied
without prejudice.
ACCORDINGLY, it is
ORDERED that Magistrate Hummel's Report-
Recommendation (Dkt. No. 6) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's claims under 42 U.S.C. § 1983
and Title VII against Defendant in his individual and
judicial (or official) capacities, and Plaintiff's claim under
the ADA against Defendant in his individual capacity, are
DISMISSED with prejudice; and it is further
ORDERED that Plaintiff's claim under the ADA against
Defendant in his judicial (or official) capacity shall be
DISMISSED with prejudice and without further Order of
this Court UNLESS, within THIRTY (30) DAYS from
the issuance of this Decision and Order, Plaintiff files an
Amended Complaint curing the pleading defects in that
claim identified in the Report-Recommendation; and it is
further
ORDERED that, should Plaintiff file such an Amended
Complaint, the Amended Complaint must be a complete
pleading that supersedes and replaces his original Complaint
in all respects and does not incorporate by reference any
portion of that original Complaint; and it is further
ORDERED that, should Plaintiff file an Amended Complaint
in this action, the Amended Complaint shall be automatically
referred to Magistrate Judge Hummel for review pursuant to
28 U.S.C. § 1915(e).
ORDERED that Plaintiff's motion to appoint counsel and for
access to electronic filing (Dkt. No. 4) is DENIED without
prejudice; and it is further
ORDERED that Plaintiff's second motion to appoint counsel
(Dkt. No. 7) is DENIED without prejudice.
The Court certifies that an appeal from this Decision and
Order would not be taken in good faith.
All Citations
Not Reported in Fed. Supp., 2022 WL 2115265
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 102 of 112

Terpening v. McGinty
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:21-CV-01215
Terpening v. McGinty
— N.D.N.Y. Nov. 09, 2021 Docket
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 103 of 112

Terpening v. McGinty
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (4)
Direct History (2)
1. Terpening v. McGinty
2022 WL 2657291 , N.D.N.Y. , Apr. 28, 2022
Report and Recommendation Adopted by
2. Terpening v. McGinty
2022 WL 2115265 , N.D.N.Y. , June 13, 2022
Related References (2)
3. Terpening v. McGinty
2022 WL 17418268 , N.D.N.Y. , Oct. 05, 2022
Report and Recommendation Adopted by
4. Terpening v. McGinty
2022 WL 17415121 , N.D.N.Y. , Dec. 05, 2022
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 104 of 112

Cardona v. Commissioner of Social Security, Not Reported in Fed. Supp. (2020)
2020 WL 8575100
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 8575100
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Gyspy CARDONA
v.
COMMISSIONER OF SOCIAL SECURITY
3:20 CV 558 (RMS)
|
Signed 12/02/2020
Attorneys and Law Firms
Keegan A. Drenosky, Shipman & Goodwin, Stamford, CT,
for Gypsy Cardona.
Nicol Fitzhugh, SSA-Office of the General Counsel, Kansas
City, MO, for Commissioner of Social Security.
RULING ON THE PLAINTIFF'S
MOTION TO APPOINT COUNSEL
Robert M. Spector, United States Magistrate Judge
*1 On April 27, 2020, the plaintiff, proceeding as a self-
represented party, commenced this action under § 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), seeking review
of a final decision by the Commissioner of Social Security
(“SSA”) denying the plaintiff Disability Insurance Benefits
and Supplemental Security Income benefits. On November
23, 2020, the plaintiff filed a motion to appoint pro bono
counsel pursuant to 28 U.S.C. § 1915. (Doc. No. 21; see also
Doc. No. 22).
I. APPOINTMENT OF COUNSEL IN A CIVIL CASE
“A party has no constitutionally guaranteed right to the
assistance of counsel in a civil case[,]” Leftridge v.
Connecticut State Trooper Officer No. 1283, 640 F.3d 62,
68 (2d Cir. 2011) (citations omitted), and “Congress has not
specifically authorized courts to appoint counsel for plaintiffs
proceeding under 42 U.S.C. § 405.” Kirkpatrick v. Astrue, No.
08-0407, 2008 WL 879407, at *1 (W.D. La. Mar. 31, 2008).
The Second Circuit has made clear that a pro se, or self-
represented, litigant must demonstrate first that she cannot
afford counsel, and then must demonstrate the likely merit
of her claims before counsel is appointed. See, e.g., Ferrelli
v. River Manor Health Care Ctr., 323 F.3d 196, 203-04 (2d
Cir. 2003); Hendricks v. Coughlin, 114 F.3d 390, 393 (2d
Cir. 1997). The plaintiff seeks the appointment of counsel
because she “[does not] understand” a “federal social security
case.” (Doc. No. 21 at 5).
A. INABILITY TO AFFORD COUNSEL
On April 30, 2020, the Court granted the plaintiff's motion for
leave to proceed in forma pauperis based on an affidavit of her
current financial situation. (Doc. No. 10). Thus, the plaintiff
has established that she cannot afford counsel.
B. MERITS OF THE CLAIM
Turning to the second prong, the merits of the plaintiff's claim,
the plaintiff has demonstrated that she timely filed this action.
On May 14, 2020, the plaintiff filed her Notice of Appeals
Council Action, dated February 18, 2020. (Doc. No. 13; see
also Doc. Nos. 11). The plaintiff commenced this action on
April 27, 2020. As set forth in 42 U.S.C. § 405(g), “[a]ny
individual, after any final decision of the Commissioner of
Social Security made after a hearing to which [s]he was a
party, ... may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to [her] of
notice of such decision[.]” The “60-day requirement is not
jurisdictional, but rather constitutes a period of limitations.”
Bowen v. City of New York, 476 U.S. 467, 479 (1986). “[T]he
date of receipt of ... notice of decision by the Appeals Council
shall be presumed to be 5 days after the date of such notice,
unless there is a reasonable showing to the contrary.” 20
C.F.R. § 422.210(c). The plaintiff, therefore, has 65 days from
the date of the final decision notice to file suit. Upon request
by the Court, the plaintiff submitted a copy of the Notice of
Appeals Council decision, dated February 18, 2020 which
raised a statute of limitations issue because this action was not
filed until April 27, 2020. The latest date the plaintiff could
commence this action would have been April 23, 2020. The
administrative record, filed on September 29, 2020, however,
contains a notice from the Appeals Council granting the
plaintiff's request made on or about March 23, 2020 for an
extension of time file her appeal. (Doc. No. 19 at 8). On
July 13, 2020, the Appeals Council extended the time for the
plaintiff to file this action to April 27, 2020. (Id. at 6).
*2 The plaintiff demonstrated that she has exhausted her
administrative remedies and timely filed this action, so she
has established the jurisdictional prerequisites to proceeding
with her claim. That said, even in a case in which a
litigant's position seems likely of substance, the appointment
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 105 of 112

Cardona v. Commissioner of Social Security, Not Reported in Fed. Supp. (2020)
2020 WL 8575100
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
of counsel is made only in “exceptional circumstances.”
Kirkpatrick, 2008 WL 879407, at *1. When considering
whether such circumstances exist, courts often consider: (1)
“the type and complexity of the case;” (2) the litigant's
“ability to adequately present and investigate her case;” (3)
the presence of conflicting testimony that requires skill in
the presentation of evidence and cross examination; and (4)
the likelihood that the appointment will benefit the litigant,
defendant and the court. Id. (citations omitted).
Applying these factors to this case, this is a social security
appeal, “which by nature is not unduly complex.” Id.
Because the matter is decided on an administrative record
by arguments presented in written memoranda, skill in
presenting evidence and cross-examination is not required. Id.
“The mere fact that plaintiff is a layman and that litigation
as a pro se plaintiff may have challenges is not sufficient
reason to appoint counsel. Indeed, every pro se plaintiff
faces such challenges, yet resources for appointed counsel
in civil matters are extremely limited.” Hyde v. Comm'r of
Soc. Sec., 5:17-CV-247 (CFH), 2017 WL 11470615, at *1
(N.D.N.Y. Oct. 16, 2017). The plaintiff, while proceeding pro
se, has sought and was granted an extension to commence this
action, timely filed this action on her own, consented to the
jurisdiction of the Court, and complied with several orders of
the Court. She has, thus far, demonstrated an ability to present
her case on her own behalf. If unable to secure counsel, the
plaintiff will be able to file a brief which sets forth her belief
as to why the Administrative Law Judge erred in his decision
that the plaintiff was not entitled to social security benefits.
Additionally, the plaintiff repeats twice that she contacted
“Legal Aid” in “6/20” and was told they do “not take federal
cases.” (Doc. No. 21 at 5). The Second Circuit has made
clear that before counsel may be appointed, the movant must
demonstrate that she is unable to obtain counsel on her own.
See Saviano v. Local 32B-32J, 75 F. App'x 58, 59 (2d Cir.
2003). The Court notes that the plaintiff had counsel at the
administrative level (see Doc. No. 19), and upon request,
the Social Security Administration “generally provides the
plaintiff with a list of attorneys in the area to take these types
of cases.” Kirkpatrick, 2008 WL 879407, at *2. The Motion
to Appoint Counsel form completed by the plaintiff advises:
“The Court strongly suggests that you contact a minimum of
three attorneys.” (Doc. No. 21 at 5). Yet, the plaintiff only
reached out to “Legal Aid” in “6/20.” (Id.). The plaintiff has
not demonstrated a diligent effort to obtain private counsel on
her own, yet there are resources, including the Connecticut
Bar Association, available to the plaintiff to seek counsel.
For these reasons, the Court DENIES the plaintiff's motion
to appoint counsel as the plaintiff has not demonstrated
“exceptional circumstances” which would warrant the
appointment of counsel. Kirkpatrick, 2008 WL 879407, at *2.
Currently, the plaintiff's dispositive motion was due on
November 30, 2020. The Court will extend this briefing
deadline to January 30, 2021 to afford the plaintiff time to
seek counsel and comply with the scheduling order.
II. CONCLUSION
For the reasons set forth above, the plaintiff's Motion to
Appoint Counsel (Doc. No. 21) is DENIED.
All Citations
Not Reported in Fed. Supp., 2020 WL 8575100
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 106 of 112

Cardona v. Commissioner of Social Security
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 3:20-CV-00558
Cardona v. Commissioner of Social Security
— D.Conn. Apr. 27, 2020 Docket
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 107 of 112

Cardona v. Commissioner of Social Security
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (1)
1. Cardona v. Commissioner of Social Security
2020 WL 8575100 , D.Conn. , Dec. 02, 2020
Related References (2)
2. Cardona v. Commissioner of Social Security
2021 WL 621254 , D.Conn. , Jan. 28, 2021
3. Gypsy C. v. Kijakazi
2021 WL 4099607 , D.Conn. , Sep. 09, 2021
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 108 of 112

Kirkpatrick v. Astrue, Not Reported in F.Supp.2d (2008)
2008 WL 879407
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 879407
Only the Westlaw citation is currently available.
United States District Court, W.D. Louisiana,
Shreveport Division.
Tanya Patricia KIRKPATRICK
v.
Michael J. ASTRUE, Commissioner,
Social Security Administration.
Civil Action No. 08-0407.
|
March 31, 2008.
Attorneys and Law Firms
Tanya Patricia Kirkpatrick, Haughton, LA, pro se.
John A. Broadwell, U.S. Attorneys Office, Shreveport,
LA, for Michael J. Astrue, Commissioner, Social Security
Administration.
MEMORANDUM ORDER
KAREN L. HAYES, United States Magistrate Judge.
*1 Currently before the court is a motion for appointment of
counsel” [doc. # 3] filed by pro se plaintiff, Tanya Kirkpatrick.
By this motion, plaintiff seeks to have the court appoint
counsel to assist her in the above-captioned social security
case.
Congress has not specifically authorized courts to appoint
counsel for plaintiffs proceeding under 42 U.S.C. § 405.
Thus, the court must look to the more general authority of
28 U.S.C. § 1915(e)(1) to consider plaintiff's request for
court-appointed counsel. Section 1915(e)(1) provides that in
in forma pauperis proceedings, the “court may request an
attorney to represent any person unable to afford counsel.”
This provision does not, however, empower federal courts
to make compulsory appointments. Mallard v. United States
District Court for the Southern District, 109 S.Ct. 1814
(1989). Further, such requests are generally only made
where ‘exceptional circumstances' are present. See Robbins v.
Maggio, 750 F.2d. 405 (5th Cir.1985); Ulmer v. Chancellor,
691 F.2d. 209, 212 (5th Cir.1982); and Jackson v. Cain, 864
F.2d. 1235, 1242 (5th Cir.1989).
While no precise definition of “exceptional circumstances” is
available, the courts often consider the following factors when
determining whether to appoint counsel:
1. the type and complexity of the case;
2. the petitioner's ability to adequately present and
investigate her case;
3. the presence of evidence which largely consists
of conflicting testimony so as to require skill in
presentation of evidence and cross-examination;
4. the likelihood that appointment will benefit the
petitioner, the court, and the defendants by “shortening
the trial and assisting in just determination.”
See, Parker v. Carpenter, 978 F.2d. 190 (5th Cir.1992), citing
Murphy v. Kellar, 950 F.2d. at 293, n. 14; see also Ulmer, 691
F.2d. at 213, (citations omitted), and Jackson, 864 F.2d. at
1242.
Additionally, the court can consider whether the plaintiff has
demonstrated the inability to secure private counsel on her
own behalf. See Jackson, 864 F.2d. at 1242; Ulmer, 691 F.2d.
at 213.
Applying the foregoing factors, the court observes that the
instant case is a social security appeal, which by nature is not
unduly complex. The matter will be decided by the court upon
the existing administrative record and after consideration of
the parties' arguments as presented in written memoranda.
Thus, skill in the presentation of evidence and in cross-
examination is not required. Moreover, because these matters
are decided on the existing record and written briefs, a trial
will not be held.
In her motion, plaintiff stated that she contacted one
prospective law firm. However, a casual count reveals more
than 900 attorneys practicing in the Shreveport area. Thus,
while it is clear that plaintiff expended some minimal effort to
retain counsel, it is also manifest that she only scratched the
proverbial surface. Under the circumstances, the undersigned
cannot conclude that plaintiff diligently endeavored to obtain
counsel.
*2 Most plaintiffs in social security cases experience
little difficulty in obtaining representation if they seek it.
Upon request, the Social Security Administration generally
provides the plaintiff with a list of attorneys in the area willing
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 109 of 112

Kirkpatrick v. Astrue, Not Reported in F.Supp.2d (2008)
2008 WL 879407
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
to take these types of cases. 1 Additionally, because the Equal
Access to Justice Act, 28 U.S.C. § 2412, et seq., provides
for the recovery of attorney fees to a prevailing plaintiff, the
attorney is assured of payment if the claim is successful.
1 One source of low or no-cost legal representation
for the indigent is Legal Services of
North Louisiana, Inc. Their telephone number
is 318-222-7186. Also, the Shreveport Bar
Association maintains a lawyer referral service
to assist the public in obtaining legal services.
Their contact number is 318-222-3643. The
Shreveport Bar Association also maintains a
webpage for its lawyer referral service: http://
www.shreveportbar.com/referral.asp.
For these reasons, the court finds that the motion for
appointment of counsel should be denied at the present
time as the plaintiff has not demonstrated “exceptional
circumstances” which would warrant the appointment of
counsel. Accordingly,
IT IS ORDERED that plaintiff's motion for appointment of
counsel [doc. # 3] be, and it is hereby DENIED.
All Citations
Not Reported in F.Supp.2d, 2008 WL 879407
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 110 of 112

Kirkpatrick v. Astrue
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 5:08cv00407
KIRKPATRICK v. SOCIAL SECURITY ADMINISTRATION
— W.D.La. Mar. 27, 2008 Docket
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 111 of 112

Kirkpatrick v. Astrue
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
Case 8:26-cv-00359-AMN-MJK Document 8 Filed 04/30/26 Page 112 of 112