Rowland et al v. Montgomery

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
JOHN ROWLAND, et. al,
Plaintiffs,
v.
No. 1:25-CV-1035
WILLIAM MONTGOMERY, III, 	(BKS/PJE)
Defendant.
_____________________________________
APPEARANCES:
John Rowland
25-R-1918
Mohawk Correctional Facility
P.O. Box 8451
Rome, New York 13440
Plaintiff pro se
Curtis Dijon Fisher
25-R-1916
Mohawk Correctional Facility
P.O. Box 8451
Rome, New York 13440
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
I. In Forma Pauperis
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(c).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 1 of 16

2
Plaintiffs pro se John Rowland (“Rowland”) and Curtis Dijon Fisher (“Fisher”)
(collectively “plaintiffs”) commenced this action on August 4, 2025, by filing a complaint. 2
See Dkt. No. 1. In lieu of paying this Court’s filing fee, plaintiffs submitted applications for
leave to proceed in forma pauperis (“IFP”).3 See Dkt. Nos. 2, 5. 	The undersigned has
reviewed plaintiffs’ IFP applications and determines that they financially qualify to proceed
IFP.4 This Court must now assess the merits of plaintiffs’ complaint pursuant to 28 U.S.C.
§§ 1915; 1915A.
II. Initial Review
A. Legal Standards
28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that . . . the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 	28 U.S.C. §
1915(e)(2)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly
maintain his complaint before permitting him to proceed further with his action.” Praileau
v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
Generally, where the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
2 The undersigned notes that Rowland and Fisher have each filed two other actions with this Court. See
Fisher v. Prime Care Medical Inc., et. al., 9:25-CV-0815 (AMN/TWD) (terminated Oct. 29, 2025); Fisher v.
Glenns Falls Hospital, et al., 1:25-CV-0831 (AJB/DJS) (terminated Oct. 7, 2025); Rowland v. Fergusen, et
al., 9:25-CV-0854 (AMN/TWD) (terminated Dec. 10, 2025); Rowland v. Ferguson, et al., 1:25-CV-1150
(AJB/TWD) (terminated Dec. 16, 2025).
3 An IFP application was also filed by Kaden Colvin (“Colvin”), however Colvin is not a party to this action
and as will be explained below, Colvin is precluded from joining the proposed class of plaintiffs. See Dkt.
No. 7; see also infra at 14-15.
4 Plaintiffs are advised that although they have been granted IFP status, they are still required to pay any
fees and costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and
witness fees.
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 2 of 16

3
suggest.” 	Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks and citation omitted). The Second Circuit affords pro se litigants
a “special solicitude” such “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.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal
quotation marks, citations, and footnote omitted). 	However, the Court is not required to
accept unsupported allegations that are devoid of sufficient facts or claims. 	Although
detailed allegations are not required at the pleading stage, the complaint must still include
enough facts to provide the defendants with notice of the claims against them and the
grounds upon which these claims are based. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); see also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). 	Ultimately, the
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
“[P]ro se pleadings still must comply with . . . the Federal Rules of Civil Procedure.”5
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec.
13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).6 	Specifically, Rule 8
provides that a pleading which sets forth a claim for relief shall contain, among other
things, “a short and plain statement of the claim showing that the pleader is entitled to
relief.” 	FED. R. CIV . P. 8(a)(2). 	“The purpose . . . is to give fair notice of the claim being
5 Hereinafter, “Fed. R. Civ. P.”
6 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiffs.
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 3 of 16

4
asserted so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable.” 	Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation
marks and citations omitted). 	Rule 8 also requires the pleading to include “a short and
plain statement of the grounds for the court’s jurisdiction . . . and . . . a demand for the
relief sought . . . .” 	FED. R. CIV . P. 8(a). 	Although “[n]o technical form is required,” the
Federal Rules make clear that each allegation contained in the pleading “must be simple,
concise, and direct.” FED. R. CIV . P. 8(d).
“If dismissal is warranted and the plaintiff is pro se, the court generally affords the
plaintiff leave to amend the complaint.” Rich v. Akwesasne Mohawk Casino Resort, No.
8:24-CV-255 (AMN/CFH), 2024 WL 3677262, at *2 (N.D.N.Y. Aug. 6, 2024), report and
recommendation adopted, No. 8:24-CV-255 (AMN/PJE), 2025 WL 286937 (N.D.N.Y. Jan.
24, 2025) (citing Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995)). 	“However, an
opportunity to amend is not required where ‘the problem with [the plaintiff’s] causes of
action is substantive’ such that ‘better pleading will not cure it.’” 	Id. (quoting Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
III. Discussion
A. Plaintiffs’ Complaint7
Plaintiffs’ complaint alleges that they were represented by William Montgomery, III,
Attorney at Law (“Montgomery”) in an unspecified criminal matter and that Montgomery
7 Plaintiffs include two attachments with their complaint. See Dkt. Nos. 1-1, 1-2. These attachments have
also been reviewed in connection with the initial review of plaintiffs’ complaint. See Sira v. Morton, 380
F.3d 57, 67 (2d Cir. 2004) (“A complaint is deemed to include any written instrument attached to it as an
exhibit, materials incorporated in it by reference, and documents that, although not incorporated by
reference, are integral to the complaint.”) (internal quotation marks and citations omitted).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 4 of 16

5
failed to sufficiently “fight[]” for their rights . . . intrest (sic), and . . . innocients (sic).” Dkt.
No. 1 at 4. Plaintiffs claim that Montgomery was “being shiesty and did not do his job at
all” and violated their constitutional rights. 	Id. 	Plaintiffs assert that Montgomery “took
[their] money,” refused to refund any of the attorney fees, “violated [their] contracts at his
dudiligence (sic),” failed to file motions with the Court on their behalf, “threatened [them]
to take plea deals” resulting in a “prison term,” “did under bare minimum work,” and “said
he would make it so it [would] look like he put a ton of hours in and bill [them] more.” Id.
Plaintiffs further allege that Montgomery “worked with the prosecutor,” “worked for the
prosecutor and not his clients,” and refused to advocate for them to be entered into a drug
treatment program. Id. at 4-5. Plaintiffs seek monetary damages of $4,000,000 and class
certification for all of Montgomery’s clients and anyone who was also harmed by his
conduct. See id. at 5; Dkt. No. 1-1.
B. Analysis8
Plaintiffs seek to proceed pursuant to 42 U.S.C. § 1983 against Montgomery,
alleging that their First, Fourth, Fifth, Sixth, Eighth, Tenth, and Fourteenth Amendment
rights were violated. See generally Dkt. No. 1; see also Triestman, 470 F.3d at 475 (“This
policy of liberally construing pro se submissions is driven by the understanding that
‘[i]mplicit in the right of self-representation is an obligation on the part of the court to make
reasonable allowances to protect pro se litigants from inadvertent forfeiture of important
8 Plaintiffs’ civil cover sheet checks the box indicating “U.S. Government” as the basis of jurisdiction. See
Dkt. No. 1-1. However, the United States Government is not a party to this action. See generally Dkt. No.
1. 	Reading plaintiffs’ complaint liberally and affording them due solicitude, it appears plaintiffs likely
intended to mean that her claims involve federal question jurisdiction. See generally Cinotti v. Adelman,
709 F. App'x 39, 40 (2d Cir. 2017) (summary order) (“[A]lthough [the plaintiff’s] pro se complaint does not
refer to 42 U.S.C. § 1983, the district court should have construed it liberally as asserting § 1983 claims,
which provide a basis for federal question jurisdiction.”).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 5 of 16

6
rights because of their lack of legal training.’”) (quoting Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir. 1983)). Plaintiffs also seek to commence a class action. See Dkt. No. 1 at 5.
1. State Action
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured
by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” 	Gerken v.
Gordon, No. 1:24-CV-435 (MAD/CFH), 2024 WL 4608307, at *11 (N.D.N.Y. Oct. 29,
2024), report and recommendation adopted, No. 1:24-CV-435 (MAD/CFH), 2024 WL
5001402 (N.D.N.Y. Dec. 6, 2024) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). “The
traditional definition of acting under color of state law requires that the defendant . . .
exercise[ ] power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” 	Id. (quoting West, 487 U.S. at 49)
(internal quotation marks and citation omitted)). “Because the United States Constitution
regulates only the Government, not private parties, [with respect to a claim brought under
§ 1983,] a litigant claiming that his constitutional rights have been violated must first
establish that the challenged conduct constitutes state action.” 	Id. (quoting Flagg v.
Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotations omitted)
(quoting United States v. Int’l Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir.
1991)); see Baum v. N. Dutchess Hosp., 764 F. Supp. 2d 410, 419 (N.D.N.Y. 2011) (“State
action is an essential element of any § 1983 claim.”) (citing Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 934 (1982) (explaining that the “under color of any statute” language
is to enforce the provisions of the Fourteenth Amendment and that if a defendant’s
conduct satisfies the state-action requirement then that conduct is also action under color
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 6 of 16

7
of state law under § 1983), and Rounseville v. Zahl, 13 F.3d 625, 627-28 (2d Cir. 1994)
(noting the state action requirement for § 1983)).
“Private parties generally are not state actors and therefore are not usually liable
under [§] 1983.” 	Gerken, 2024 WL 4608307, at *11 (quoting Yi Sun v. Saslovsky, No.
1:19-CV-10858 (LTS), 2020 WL 6828666, at *7 (S.D.N.Y. Aug. 6, 2020) (citing Sykes v.
Bank of America, 723 F.3d 399, 406 (2d Cir. 2013)); see Basile v. Connolly, 538 F. App’x
5, 7 (2d Cir. 2013) (summary order) (“[P]rivate individuals . . . cannot be sued under 42
U.S.C. § 1983 absent a plausible allegation that they acted under color of state law.”). “A
private party’s actions can be considered state action in three situations”:
(1) the private party acts using the coercive power of the state or is
controlled by the state (the “compulsion test”); (2) the private party willfully
participates in joint activity with the state or its functions are entwined with
state policies (the “joint action” or “close nexus” test); or (3) the state has
delegated a public function to the private party (the “public function” test).
Id. (quoting Rogers v. City of New Rochelle, No. 1:19-CV-0479 (CM), 2019 WL 5538031,
at *2 (S.D.N.Y. Oct. 25, 2019) (quoting Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.
2012)). 	“The fundamental question under each test is whether the private party’s
challenged actions are ‘fairly attributable’ to the State.” Id. (quoting Rogers, 2019 WL
5538031, at *2 (quoting Fabrikant, 691 F.3d at 207)). 	“[A] State normally can be held
responsible for a private decision . . . when it has . . . provided such significant
encouragement, either overt or covert, that the choice must in law be deemed to be that
of the State.” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (citations omitted).
The State’s “[m]ere approval of or acquiescence in the initiatives of a private party[,
however,] is not sufficient to justify holding the State responsible for those initiatives
. . . .” Id. (quoting Blum, 457 U.S. at 1004-05).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 7 of 16

8
“Private attorneys, whether court appointed or privately retained, are generally not
liable under § 1983.” 	Strong v. New York, No. 1:19-CV-63 (MAD/CFH), 2019 WL
1763010, at *6 (N.D.N.Y. Apr. 22, 2019), report and recommendation adopted, No. 1:19-
CV-63 (MAD/CFH), 2019 WL 2723372 (N.D.N.Y. July 1, 2019) (quoting Kunz v. Brazill,
No. 6:14-CV-1471 (MAD), 2015 WL 792096, at *7 (N.D.N.Y. Feb. 25, 2015) (citing
Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997); Rowland v. Ferguson, No. 1:25-
CV-1150 (AJB/TWD), 2025 WL 2960153, at *3 (N.D.N.Y. Oct. 20, 2025), report and
recommendation adopted, No. 1:25-CV-1150 (AJB/TWD), 2025 WL 3127187 (N.D.N.Y.
Nov. 7, 2025) (citing Shorter v. Rice, No. 12-CV-0111 (JFB)(ETB), 2012 WL 1340088, at
*4 (E.D.N.Y. Apr. 10, 2012) (“[I]t is axiomatic that neither public defenders, such as Legal
Aid Attorneys, nor court-appointed counsel, nor private attorneys, act under the color of
state law merely by virtue of their position.”); Gammons v. Cody, et al., No. 1:25-CV-1714
(AJB/DJS), 2026 WL 500625, at *2 (N.D.N.Y. Feb. 4, 2026), report and recommendation
adopted sub nom. Gammons v. Cody, No. 1:25-CV-1714 (AJB/DJS), 2026 WL 498720
(N.D.N.Y. 	Feb. 	23, 	2026) 	(citing 	Alexander 	v. 	Murphy, 	2018 	WL 3232349, 	at 	*5
(TJM/TWD) (N.D.N.Y. July 2, 2018), report and recommendation adopted, 2018 WL
6000145 (N.D.N.Y. Nov. 14, 2018) (noting that private attorneys are not state actors));
Myers v. People of the State of New York, No. 14-CV-1492 (LEK/CFH), 2015 WL
10015296, at *3 (N.D.N.Y. Jan. 8, 2015) (citing Wiggins v. Buffalo Police Dep’t, 320
F.Supp. 2d 53, 55-56 (W.D.N. Y.2004) (“It is well-established that criminal defense
attorneys . . . are not state actors for purposes of the state action requirement of § 1983.”).
Here, it appears that Montgomery was plaintiffs’ private attorney in an unspecified
criminal proceeding(s). 	See Dkt. No. 1 at 4-5. 	Affording plaintiffs due solicitude, they
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 8 of 16

9
appear to assert claims against Montgomery alleging legal malpractice and ineffective
assistance of counsel.9 See generally Dkt. No. 1. Plaintiffs’ complaint also alleges that
Montgomery threatened them with a prison term and subjected them to medical neglect,
medical malpractice, cruel and unusual punishment, inhumane treatment, pain and
suffering, and that Montgomery intentionally inflicted emotional distress upon them. See
Dkt. No. 5. Yet, plaintiffs do not provide any additional facts or details supporting these
accusations or connect any of these purported accusations to Montgomery acting under
the color of state law. See FED. R. CIV . P. 8(a); Strong, 2019 WL 1763010, at *6; Rowland,
2025 WL 2960153, at *3.
As plaintiffs’ complaint fails to allege any facts suggesting that Montgomery was
acting under the color of state law and because it appears that Montgomery was
performing the traditional functions as legal counsel to a defendant when the alleged
violation(s) took place, he cannot be held “liable under § 1983.” 	Strong, 2019 WL
1763010, at *6; O’Donoghue v. United States Soc. Sec. Admin., 828 F. App’x 784, 787
(2d Cir. 2020) (summary order) (“Private attorneys are generally not ‘state actors’ for
purposes of § 1983.”) (additional citation omitted); Davis v. Ennis, No. 23-CV-4859
(GRB)(ARL), 2023 WL 6385336, at *5 (E.D.N.Y. Sept. 29, 2023) (quoting Rodriguez, 116
F.3d at 66) (“Here, as is readily apparent, Plaintiff’s sparse allegations do not allege that
Berger or Silberg acted outside ‘a lawyer's traditional functions as counsel’ nor does he
allege any basis from which the Court could reasonably construe that these defendants
9 The undersigned notes that Rowland was previously advised in one of his other actions that “allegations
of malpractice and/or ineffective assistance of counsel do not satisfy the state actor requirement.” Rowland
v. Fergusen, et al., 9:25-CV-0854 (AMN/TWD) Dkt. No. 8 at *9 (citing Welch v. Schenectady Cnty., No.
1:22-CV-9 (DNH/DJS), 2022 WL 3904113, at *2 (N.D.N.Y. Aug. 10, 2022) (quoting Murphy v. Feliciano,
No. 17-CV-269, 2017 WL 3699353, at *7 (VLB) (D. Conn. May 31, 2017), report and recommendation
adopted by 2022 WL 3908798 (N.D.N.Y. Aug. 30, 2022), appeal dismissed (July 10, 2023) (“[A] section
1983 action ‘is not the appropriate vehicle to raise a claim of ineffective assistance of counsel.’”))).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 9 of 16

10
engaged in any ‘concerted action’ with a state actor.”); Charlotten v. Heid, No. 09-CV-
0891 (LEK/RFT), 2011 WL 3423826, at *10 (N.D.N.Y. Aug. 4, 2011) (additional citation
omitted) 	("In 	their 	respective 	roles 	in 	persuading 	Plaintiff 	to 	plead 	guilty 	and 	in
representing 	him 	at 	his 	sentencing 	hearing, 	Defendants 	Muia 	and 	Castillo 	were
performing traditional functions of counsel for Plaintiff, and therefore cannot be deemed
‘state actors’ under § 1983."); see also Gerken, 2024 WL 4608307, at *11.10
Accordingly, the undersigned recommends dismissing plaintiffs’ complaint with
prejudice and without opportunity to amend because Montgomery, as plaintiffs’ private
counsel, is not a state actor, and plaintiffs’ complaint does not suggest any conduct “fairly
attributable to the state.” Rich, 2024 WL 3677262, at *2 (quoting Cuoco, 222 F.3d at 112);
Gerken, 2024 WL 4608307, at *11; Triestman, 470 F.3d at 477 (“[O]ur 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.”) (internal citations and quotation marks omitted). 	Further, an opportunity for
amendment is unwarranted because, as will be discussed below, plaintiffs’ claims are also
barred by Heck v. Humphrey.
2. Heck Preclusion
Assuming Montgomery represented plaintiffs in a criminal proceeding,11 plaintiffs’
complaint is also barred by Heck v. Humphrey, 512 U.S. 477 (1994). “A civil lawsuit may
10 Although it is possible to demonstrate state action under § 1983 through a defendant’s participation in a
conspiracy, “[t]here is no indication in the complaint that [Montgomery was a] . . . ‘willful participant in joint
activity with the State or its agents,’ as is required in order for the Court to find that a private party has
engaged in state action.” 10 Strong, 2019 WL 1763010, at *7 (quoting Adickes v. S. H. Kress & Co., 398
U.S. 144, 152 (1970)).
11 If defendant represented plaintiffs in a civil proceeding as retained counsel, plaintiffs’ claim would amount
to, at most, legal malpractice, which is not cognizable under § 1983. See Ali v. Shattuck, No. 8:24-CV-
0128 (DNH/CFH), 2024 WL 2747619, at *6 (N.D.N.Y. May 29, 2024), report and recommendation adopted
sub nom. Ali v. Dow, No. 8:24-CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 10 of 16

11
not be used to collaterally attack an existing criminal conviction.” 	Barzee v. Tyler, No.
8:21-CV-902 (GTS/CFH), 2022 WL 1406606, at *10 (N.D.N.Y. May 3, 2022), report and
recommendation adopted, No. 8:21-CV-902 (GTS/CFH), 2022 WL 2079084 (N.D.N.Y.
June 9, 2022) (citing Heck, 512 U.S. at 484-86).
In Heck, the Supreme Court of the United States held that a Section 1983
action seeking damages is not cognizable if a decision in favor of the plaintiff
would necessarily invalidate an extant criminal conviction unless “the
conviction or sentence had been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal . . . or called into
question by a federal court’s issuance of a writ of habeas corpus.”
Id. (quoting Heck, 512 U.S. at 486-87). “A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated is not cognizable under § 1983.”
Heck, 512 U.S. at 487.
Here, plaintiffs have failed to demonstrate that any criminal “conviction or sentence
had been reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal . . . or called into question by a federal court’s issuance of a writ of habeas
corpus.” Barzee, 2022 WL 1406606, at *10 (quoting Heck, 512 U.S. at 486-87); Brown v.
Budelmann, No. 5:23-CV-0002 (MAD/TWD), 2023 WL 4144999, at *2 (N.D.N.Y. June 23,
2023) (citing Heck, 512 U.S. at 487) (“The Supreme Court identified four methods for
finding a conviction has been invalidated: (1) the conviction has been reversed on direct
appeal, (2) an executive order expunged the conviction, (3) a federal court issued a
habeas corpus petition, or (4) an authorized state tribunal declared the conviction
invalid.”).
Among the many claims raised in plaintiffs’ complaint, plaintiffs’ allege that their
First, Fourth, Fifth, Sixth, and Eighth Amendment rights were violated. See generally Dkt.
No. 1. As a finding in plaintiffs’ favor on such § 1983 claims “would necessarily imply the
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 11 of 16

12
invalidity of [a] conviction . . . the complaint must be dismissed” pursuant to Heck. 	Kirby
v. Abraham, No. 5:24-CV-0522 (BKS/TWD), 2025 WL 1610582, at *6 (N.D.N.Y. Mar. 25,
2025), report and recommendation adopted sub nom. Kirby v. Syracuse Police Dep’t, No.
5:24-CV-522 (BKS/TWD), 2025 WL 1257458 (N.D.N.Y. May 1, 2025); Perry v. City of
Albany, No. 8:20-CV-0165 (GTS/DJS), 2020 WL 3405636, at *4 (N.D.N.Y. May 6, 2020),
report and recommendation adopted, No. 8:20-CV-0165 (GTS/DJS), 2020 WL 3403080
(N.D.N.Y. June 19, 2020) (“A claim for damages bearing [a] relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.”); Cato v.
Bleakley, No. 20-CV-7087 (EAW), 2021 WL 4595427, at *4 (W.D.N.Y. Oct. 6, 2021)
(quoting Heck, 512 U.S. at 490) (“[I]n order to recover damages under Section 1983 for
harm ‘attributable to an unconstitutional conviction or sentencing[,]’ the conviction or
sentence must first be invalidated. Where the claim has not first been invalidated, the
cause of action under Section 1983 is not cognizable because it has not yet accrued.”).12
Plaintiffs do not suggest any such favorable termination. Rather, plaintiffs state
that, as of the time they filed the complaint, they were prisoners “awaiting sentencing.”
Dkt. No. 1 at 2. Further, the New York State Department of Corrections and Community
Supervision 	incarcerated 	lookup 	website 	suggests 	that 	that 	sentencing 	has 	since
12 “The undersigned recognizes that claims that are determined to be barred by Heck are dismissed without
prejudice.” Cole v. Smrtic, No. 1:24-CV-847 (MAD/CFH), 2024 WL 4870495, at *5, n.7 (N.D.N.Y. Nov. 21,
2024), report and recommendation adopted, No. 1:24-CV-847 (MAD/PJE), 2025 WL 247901 (N.D.N.Y. Jan.
21, 2025). However, the undersigned is recommending dismissal of plaintiffs’ § 1983 claims with prejudice
not because of Heck preclusion, because of plaintiffs’ failure to demonstrate that defendant is a state actor
acting under color of state law. Thus, even if, at some point, plaintiffs could overcome the Heck bar,
amendment would be futile because defendant is not a state actor acting under color of state law and there
is absolutely nothing to suggest a conspiracy with state actors. “The undersigned has included the Heck
review for sake of completeness.” Id. However, should the District Judge disagree, and wish to dismiss
on the basis of Heck, it is alternatively recommended that this complaint be dismissed without prejudice but
without opportunity to amend in this action. See id.
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 12 of 16

13
occurred as it indicates that Rowland13 and Fisher14 are incarcerated, starting in August
2025, serving a minimum of five-year, one month and four-year, eight-month sentences,
respectively.15 Thus, as it appears plaintiffs have been convicted of a crime, and that their
convictions have not been favorably terminated, their section 1983 claims are barred by
Heck. 	Heck, 512 U.S. at 486-87 (The Supreme Court adopted what is known as the
“favorable termination rule,” holding that “in order to recover damages for allegedly
unconstitutional conviction or imprisonment . . . a [Section] 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.”).
3. Class Action
Plaintiffs’ complaint seeks to commence a class action and to certify a class to
include all of Montgomery’s former clients and “anyone this man has harmed and not
done his job properly and caused injury.” Dkt. No. 1 at 5. However, it “is well-settled law
that a class action cannot be maintained by a pro se litigant because a non-attorney
cannot represent someone other than themselves.” Cox v. New York State, No. 1:23-CV-
0060 	(MAD/CFH), 	2023 	WL 2770368, 	at 	*5 	(N.D.N.Y. Apr. 	4, 	2023), 	report 	and
13 N EW YORK STATE DEPARTMENT OF C ORRECTIONS AND C OMMUNITY SUPERVISION, “Find an Offender
Incarcerated Lookup,” “Rowland, John N.” https://nysdoccslookup.doccs.ny.gov/ (last visited Apr. 22,
2026).
14 N EW YORK STATE DEPARTMENT OF C ORRECTIONS AND C OMMUNITY SUPERVISION, “Find an Offender
Incarcerated Lookup,” “Fisher, Curtis D.” https://nysdoccslookup.doccs.ny.gov/ (last visited Apr. 22, 2026).
15 “The Court obtained Plaintiff[s’] transfer date from the inmate lookup service on the official website of the
New York State Department of Corrections and Community Supervision (“DOCCS”) using Plaintiff[s’]
Identification Number[s], [Rowland: 25R1918; Fisher: 25R1916]. ‘Courts in this district have taken judicial
notice of information obtained from online inmate tracking services.’” Jackson v. Sullivan Cnty., No. 16
CIV. 3673 (JCM), 2018 WL 1582506, at *5, n.8 (S.D.N.Y. Mar. 27, 2018) (quoting Narvaez v. City of New
York, No. 16 Civ. 1980 (GBD), 2017 WL 1535386, at *5 n.6 (S.D.N.Y. Apr. 17, 2017) (quoting Tavares v.
New York City Health & Hosps. Corp., No. 13-CV-3148 (PKC/MHD), 2015 WL 158863, at *3 (S.D.N.Y. Jan.
13, 2015))).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 13 of 16

14
recommendation adopted, No. 1:23-CV-0060 (MAD/CFH), 2023 WL 6862505 (N.D.N.Y.
Oct. 18, 2023) (citing Miller v. Zerillo, No. 07-CV-1719 (JS)(WDW), 2007 WL 4898361, at
*1 (E.D.N.Y. Nov. 2, 2007) (additional citations omitted); Sitts v. Weaver, No. 9:20-CV-
1474 (GTS/DJS), 2021 WL 51411, at *4 (N.D.N.Y. Jan. 6, 2021) (citing Iannaccone v. Law,
142 F.3d 553, 558 (2d Cir. 1998) (same).
Here, plaintiffs have not demonstrated that they are licensed and admitted
attorneys. 	See generally Dkt. No. 1. 	“Moreover, to the extent plaintiff[s'] comment can
be interpreted as a request for class certification . . . such a request is also denied
because it was not made through a proper motion and does not satisfy the requirements
of Rule 23 of the Federal Rules of Civil Procedure.” Cox, 2023 WL 2770368, at *5. “Thus,
to the extent plaintiff[s’] complaint seeks to allege that any wrongs were imposed on any
persons other than [themselves], because [they] cannot proceed as a class action at this
time, such claims will be interpreted only insofar as they impact plaintiff[s], individually.”
Id.; Sitts, 2021 WL 51411, at *4 (“Until such time as a motion seeking certification of the
class has been filed demonstrating that the requirements of Rule 23 . . . have been
satisfied, the complaint shall be considered as an action brought jointly by plaintiffs in
their individual capacities under Rule 20.”). 	Accordingly, “to the extent plaintiff[s’]
complaint can be read as seeking class certification,” the undersigned recommends this
request be denied. Id.
IV. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed without the Court granting
leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” 	Gerken, 2024 WL 4608307, at *15 (quoting Nielsen
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 14 of 16

15
v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation and internal quotation marks omitted)).
“However, if the problems with a complaint are ‘substantive’ rather than the result of an
‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would be ‘futile’
and ‘should be denied.’” 	Id. (quoting Edwards v. Penix, 388 F. Supp. 3d 135, 144-45
(N.D.N.Y. 2019) (quoting Cuoco, 222 F.3d at 112). Here, it is recommended that plaintiffs’
claims be dismissed with prejudice and without opportunity to amend because (1)
Montgomery is not a state actor, (2) plaintiffs have not demonstrated that Montgomery’s
conduct is “fairly attributable to the state[,]” and (3) nothing in the complaint at all suggests
a conspiracy with state actors. 	Gerken, 2024 WL 4608307, at *11; Strong, 2019 WL
1763010, at *7; Cole, 2024 WL 4870495, at *5. It is not recommended that plaintiffs be
given an opportunity to amend in this action to allege such conduct as any amendment
would be futile because plaintiffs’ claims are also barred by Heck and plaintiffs have not
shown favorable termination.
V. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiffs’ application to proceed in forma pauperis (Dkt. Nos. 2, 5)
is GRANTED; and it is
RECOMMENDED, that plaintiffs’ complaint (Dkt. No. 1) be DISMISSED with
prejudice and without opportunity to amend for failure to state a claim; and it is further
RECOMMENDED, that, in the alternative, should the District Judge disagree with
the undersigned’s above recommendation, the matter be dismissed without opportunity
to amend in this action but without prejudice to proceeding on such claims in the future
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 15 of 16

16
should 	plaintiffs 	be 	able 	to 	demonstratefavorable 	termination 	of 	their 	criminal
convictions;16 and it is further
RECOMMENDED, that plaintiffs’ request for class certification (Dkt. No. 1), be
DISMISSED without prejudice; it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on plaintiffs in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiffs 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. See Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d
Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a), 72.17
Dated: April 28, 2026
Albany, New York
16 See generally Bannister v. Perilli, No. 1:24-CV-183 (ECC/PJE), 2025 WL 1266657, at *5 (N.D.N.Y. May
1, 2025), report and recommendation adopted as modified sub nom. Bannister, v. Perilli, et al., No. 1:24-
CV-183 (ECC/PJE), 2025 WL 2912660 (N.D.N.Y. Oct. 14, 2025) (holding claims barred by Heck to be
dismissed without prejudice but without leave to amend in that action because the plaintiff had not
demonstrated a favorable termination of his criminal conviction).
17 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-day (14) period, meaning that you have seventeen (17)
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See F ED. R. C IV . 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.
See id. § 6(a)(1)(c).
Case 1:25-cv-01035-BKS-PJE Document 12 Filed 04/28/26 Page 16 of 16