Smith et al v. D'Agostino et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ETHAN D. SMITH, and
JENNIFER L. DEES,
-vs-
MAE D'AGOSTINO, et al.,
Plaintiffs,
Defendants.
ORDER
25-CV-1265-MAV-CDH
Plaintiffs Ethan D. Smith and Jennifer L. Dees initiated this action pro se on
September 10, 2025 and paid the filing fee. ECF No. 1. Their complaint names over
one hundred Defendants, including two Second Circuit Judges; the Clerk of Court for
the Second Circuit; a federal District Judge; several state court judges; the New York
State Attorney General and two of her assistant attorneys; five municipalities and
select employees; a school district and a regional educational service agency; a
number of private attorneys, law enforcement officers, Child Protective Services and
Office of Children and Family Services employees, local businesses, and individuals;
and twenty Jane and John Doe defendants. Id. ,r,r 3-115. Among other claims, the
complaint alleges a vast RICO conspiracy to enrich enterprise members, obstruct
justice, retaliate against Plaintiffs, and deprive Plaintiffs of their constitutional
rights to due process, equal protection, free speech, and familial association. Id. ,r 469.
For the reasons discussed below, Plaintiffs complaint is dismissed sua sponte
with leave to amend within 30 days from the date of this order.
BACKGROUND
I. Procedural History
1
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 1 of 29

The procedural history of this action is set forth in greater detail in the Court's
prior order denying Plaintiffs motion for judicial recusal and a temporary restraining
order and preliminary injunction. ECF No. 	19. For the purposes of the present
decision, it is sufficient to note that Plaintiffs commenced this action proceeding pro
se and paid the filing fee in the Northern District of New York on September 10, 2025.
ECF No. 1. Though not identical, the complaint involves similar claims and shares
several defendants in common with two other actions filed in the Northern District
in the past two years. See Dees and Smith v. Zurlo, et al., Case No. 24-CV-0001
(N.D.N.Y.), ECF No. 14 at 3 (noting the complaint was against "a broad spectrum of
governmental entities and private defendants including judges, attorneys, family
members, 	the 	Saratoga 	County 	Sheriffs 	Office, 	district 	attorneys' 	offices,
departments of social service, Warren County, Saratoga County, and the City of
Mechanicville"); Smith et al v. Fisher et al., Case No. 25-CV-0199 (N.D.N.Y.), ECF
No. 12 ("Plaintiffs' claims relate to past and ongoing state court matters and the
named 	Defendants 	are 	two 	state 	court 	judges, 	the 	Chief Clerk 	of the 	Third
Department, and three lawyers who were assigned to represent Plaintiffs or their
children in the underlying state court proceedings."). Notably, the first action cited
above, Dees and Smith v. Zurlo, et al., was dismissed without leave to amend after
the Second Circuit dismissed Plaintiffs appeal. Case No. 24-CV-0001 (N.D.N.Y.),
ECF Nos. 19, 21.
On September 16, 2025, the Second Circuit designated this Court to perform
the duties of United States District Judge temporarily for the Northern District of
2
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 2 of 29

New York for this specific case. ECF No. 10.
II. Factual Allegations
The factual allegations regarding a handful of the Defendants in the instant
case give a flavor for the entirety of the complaint, which alleges a conspiracy that
involves "at its core ... unlawful attorney appointments and void judicial orders,
enforced 	by 	a 	network 	of at 	least 	four 	married 	couples 	- 	state 	judges, 	bar
administrators, OCFs, clerks, and attorneys - creating a closed system where fraud
is legitimized, retaliation is routine, and justice is for sale in a pay-to-play scheme."
ECF No. 1 at p. 2.
According to the complaint, Plaintiff Smith's ex-wife, Defendant Veronica
Smith, initiated divorce proceedings against him in June 2020. ECF No. 1 ,r 128. On
August 3, 2020, Judge Paul Pelagalli, the "engineer of the racketeering scheme,"
initiated "the racketeering enterprise" when he appointed an attorney for the child.
Id. ,r 116. Plaintiffs claim that Judge Pelagalli's adjudication of the matrimonial
proceedings "was not neutral adjudication but a calculated mechanism to preserve
revenue for the system while protecting an abuser." Id. ,r 120. For this and other
actions between his appointment of the attorney for the child in 2020 and his
assumption of the role of Clifton Park Town Attorney in January 2024, Plaintiffs
allege Judge Pelagalli's conduct constituted mail and wire fraud, honest services
fraud, 	extortion 	under 	color 	of law, 	obstruction 	of justice, 	retaliation 	against
witnesses, and deprivation of rights under color of law. Id. ,r 125.
Plaintiff alleges that "[t]he enterprise operated through Saratoga Family and
3
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 3 of 29

Supreme Court, Saratoga Springs City Court, county clerk offices, the AD3 [Appellate
Division, Third Department], and into federal forums." Id. ,r 161. Plaintiff claims that
defendant judges and various other judicial employees in these courts and offices
acted 	in 	concert 	to 	commit, 	attempt, 	and/or 	aid 	and 	abet 	multiple 	predicate
racketeering 	acts, 	including 	wire 	fraud, 	obstruction 	of 	justice, 	witness
tampering/retaliation, deprivation of rights under color oflaw, and RICO conspiracy.
Id. ,r 162.
For instance, Plaintiff alleges that from August 2023 through August 2025, the
Third Department of the Appellate Division of the New York State Supreme Court
"acted not as a neutral appellate forum but as an enforcement arm of the enterprise.
Despite receiving no fewer than 10 emergency motions .... [the Appellate Division]
issued only boilerplate summary denials, without oral argument, hearings, or written
findings." Id. ,r 225. Plaintiffs allege the Appellate Division's conduct "constitutes
predicate racketeering acts" including wire fraud, obstruction of justice, retaliation
against witnesses, deprivation of rights under color oflaw, and conspiracy to conduct
racketeering. Id. ,r 233.
Plaintiffs allege that Second Circuit Judges William Nardini and Joseph
Bianco, and Second Circuit Clerk of Court Catherine O'Hagan Wolfe, "used the
Second Circuit as an instrument of the enterprise, obstructing appellate review and
laundering unlawful dismissals into precedential federal records." Id. ,r 265. The
Second Circuit's multiple rulings in Plaintiffs' cases "were not neutral adjudications,
but retaliatory acts designed to protect conflicted state and federal defendants,
4
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 4 of 29

prevent review of fraudulent attorney appointments, and foreclose federal remedies
for Plaintiffs." Id. ,r 271. This conduct constituted the predicate racketeering acts of
wire fraud, obstruction of justice, witness retaliation, deprivation of rights under
color of law, and RICO conspiracy. Id. ,r 273.
Plaintiffs allege that ten named law enforcement defendants "engaged in a
deliberate, 	continuous 	pattern 	of racketeering 	activity 	and 	retaliation 	against
Plaintiffs as federal witnesses." Id. ,r 281. Plaintiffs state that in the face of repeated
notice that Plaintiffs were subject to void judicial proceedings and "escalated threats,"
these 	defendants 	"refused enforcement 	and instead weaponized their offices to
protect enterprise actors." Id. 	Their conduct allegedly constituted obstruction of
justice, 	witness 	tampering/retaliation, 	conspiracy 	against 	rights, 	deprivation of
rights under color of law, mail and wire fraud, honest services fraud, and RICO
conspiracy. Id. ,r 285.
Plaintiffs allege that Defendant Letitia James, Attorney General of the State
of New York, two of her assistant attorneys 	general, 	and several local district
attorneys 	were 	"direct 	architects 	and 	enforcers 	of the 	racketeering 	enterprise,
weaponizing prosecutorial discretion as a retaliatory shield for unlawful conduct." Id.
,r 313. Defendant James, in particular, refused to prosecute or intervene despite
Plaintiffs' provision of notice of multiple ethical and legal violations, and "instead
direct[ed] her deputies to defend void orders .... act[ing] not as chieflaw enforcement
officer of the state but as chief protector of the enterprise." Id. ,r 319. Plaintiff claims
these defendants engaged in the predicate racketeering acts including obstruction of
5
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 5 of 29

justice, witness tampering and retaliation, conspiracy against rights, deprivation of
rights under the color of law, mail and wire fraud, honest services fraud, fraud upon
the court, and racketeering conspiracy. Id. ,r 315.
Plaintiffs further claim that several Defendants from the New York State
Office of Child and Family Services, 	as well as from 	Child Protective Services
"falsified records, prematurely closed founded cases, fabricated excuses to avoid
intervention, 	and 	obstructed 	compliance 	with 	subpoenas." 	Id. 	,r 	349. 	"These
coordinated acts were not discretionary errors. They were deliberate enterprise
tactics." Id. ,r 361. Plaintiffs allege that this conduct constituted obstruction of justice,
witness tampering and retaliation, conspiracy against rights, deprivation of rights
under 	color 	of law, 	falsification 	of public 	records, 	mail 	and 	wire 	fraud, 	and
racketeering conspiracy. Id.
DISCUSSION
"District Courts do not generally conduct sua sponte reviews of actions in which
the plaintiff has paid the filing fee." Yoo v. Rochester Gen. Hosp., No. 18-CV-6398 CJS,
2018 WL 3575660, at *2 (W.D.N.Y. July 25, 2018). Further, pro se submissions are
reviewed with "special solicitude," and "must be construed liberally and interpreted
to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and emphasis
omitted). Nevertheless, "prose status does not exempt a party from compliance with
relevant rules of procedural and substantive law." Id. at 477. In that regard, the
Second Circuit has confirmed that a "district court has inherent authority to 'dismiss
6
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 6 of 29

a frivolous complaint sua sponte even when the plaintiff has paid the required filing
fee."' 	Hariprasad 	v. 	New 	York, 	722 	F. App'x 	102, 	102 (2d 	Cir. 	2018) 	(quoting
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000)).
"[A] 	complaint, 	containing 	as 	it 	does 	both 	factual 	allegations 	and 	legal
conclusions, is frivolous where it lacks an arguable basis either in law or in fact."
Neitzke v. 	Williams, 	490 U.S. 319, 325 (1989). Thus, the "term 'frivolous,' when
applied to a complaint, embraces not only the inarguable legal conclusion, but also
the fanciful factual allegation." Id. A finding of frivolousness is therefore appropriate
"'when the facts alleged rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts available to contradict them."'
Selby v. United States, No. 24-CV-8761 (LDH) (LB), 2025 WL 552609, at *2 (E.D.N.Y.
Feb. 19, 2025) (quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)).
After reviewing all 545 paragraphs of Plaintiffs' complaint, the Court finds
both that the facts alleged rise to the level of the irrational or the wholly incredible,
and that the complaint lacks an arguable basis in law.
I. Frivolous Factual Allegations
"A claim is frivolous when it is vague and incomprehensible, or when it is
supported 	by 	baseless 	factual 	allegations 	'describing 	fantastic 	or 	delusional
scenarios."' Morpurgo v. Inc. Vill. of Sag Harbor, 697 F. Supp. 2d 309, 342 (E.D.N.Y.
2010), 	affd, 	417 	F. App'x 96 	(2d Cir. 	2011) 	(quoting Bloom 	v. 	U.S. 	Gov't, 	No.
02CIV.2352DABDF, 	2003 	WL 	22327163, 	*8 	(S.D.N.Y. 	Oct. 	10, 	2003)). 	Here,
Plaintiffs' core RICO claims are based on fantastical allegations that dozens of
7
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 7 of 29

"federal and state judicial officers, prosecutors, attorneys, law enforcement officials,
[child protective services agencies], school personnel, municipalities, and private
actors" entered into an immense conspiracy, the objectives of which were to "enrich
Enterprise 	members 	through 	fraudulent 	attorney 	appointments 	and
misappropriated federal funds," obstruct justice, retaliate against Plaintiffs, and
deprive Plaintiffs of their constitutional rights. ECF No. 1 ,r,r 467, 469.
In addition to the RICO claims, each of the dozen or so remaining claims hinges
on similarly incredible claims that the Defendants "weaponized their positions";
convened and enforced void proceedings; issued void orders; fabricated, manipulated,
and 	backdated 	records; 	suppressed 	filings 	and 	material 	evidence; 	facilitated
abductions; and misused the legal process. Plaintiffs' claims "are precisely the type of
fanciful or delusional allegations that warrant dismissal ... as factually frivolous."
Lang v. Clinton, 761 F. Supp. 3d 595, 601-02 (W.D.N.Y. 2024), appeal dismissed, No.
25-126, 2025 WL 1982319 (2d Cir. May 21, 2025) (citing, inter alia, Gladney v.
Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002)); see also Gallop v. Cheney,
642 F.3d 364, 368 (2d Cir. 2011) ("Gallop or any other plaintiff certainly may allege
that the most senior members of the United States government conspired to commit
acts of terrorism against the United States, [but] the courts have no obligation to
entertain pure speculation and conjecture.").
II. Frivolous Legal Claims
Besides being fantastical, Plaintiffs' allegations are also insufficient to state a
legal claim. The complaint not only invites the Court to look past the well-settled
8
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 8 of 29

principles of the Rooker-Feldman doctrine, Younger absention, and immunity of
public officials, but it also fails to adequately plead any of the 14 causes of action
alleged.
A. The Rooker-Feldman Doctrine and Younger Abstention
As the courts dealing with Plaintiffs' prior cases have noted, and this Court
has echoed in its order denying Plaintiffs injunctive relief, the Rooker-Feldman
doctrine and the principles of Younger abstention present potentially profound
problems for Plaintiffs' complaint. The Court notes them here, though finds these
considerations are not dispositive due to the vague and conclusory nature of Plaintiffs'
allegations regarding the state court orders underlying its claims.
The Rooker-Feldman doctrine bars federal district courts from hearing cases
that are, in effect, appeals from state court judgments on the grounds that the
Supreme Court is the only federal court with jurisdiction over such cases. Dorce v.
City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (citing 28 U.S.C. § 1257). In the two
cases from which the doctrine took its name, the Supreme Court held that federal
district courts could not exercise jurisdiction over claims seeking to void the outcome
of a state court judgment. Id. (citing District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 463 (1983) (plaintiffs sought reversal of state court's denial
of requests for waivers of bar admission rule); Rooker v. Fidelity Trust Co., 263 U.S.
413, 444 (1923) (plaintiff sought to have Indiana judgment "declared null and void")).
Following the more recent case of Exxon Mobil Corp. v. Saudi Basic Industries Corp.,
544 U.S. 280 (2005), the Second Circuit articulated four requirements that must be
9
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 9 of 29

met for Rooker-Feldman to apply:
(1) "the federal-court plaintiff must have lost in state court[;]" (2) "the
plaintiff must complain of injuries caused by a state-court judgment[;]"
(3) "the plaintiff must invite district court review and rejection of that
judgment[;]" and (4) "the state-court judgment must have been rendered
before the district court proceedings commenced."
Dorce, 2 F.4th at 101 (quoting Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77,
85 (2d Cir. 2005)). Where these four elements are satisfied, "[t]he Rooker-Feldman
doctrine precludes district court review as a matter of subject matter jurisdiction."
Fraccola v. Grow, 670 F. App'x 34, 35 (2d Cir. 2016).
Whereas the Rooker-Feldman doctrine applies to complaints from a "state
court loser," the Younger abstention doctrine and its progeny require federal courts
to refrain from exercising jurisdiction over matters concerning ongoing proceedings
in state court. See Younger v. Harris, 401 U.S. 37, 44 (1971). ''Younger abstention is
mandatory when: (1) there is an ongoing state proceeding; (2) an important state
interest is involved; and (3) the plaintiff has an adequate opportunity for judicial
review of his constitutional claims during or after the proceeding." Sobel v. Prudenti,
25 F. Supp. 3d 340, 354-55 (E.D.N.Y. 2014) (citing Spargo v. N. Y. State Comm'n on
Judicial Conduct, 351 F.3d 65, 75 (2d Cir. 2003)). The Second Circuit has identified
two narrow exceptions the Supreme Court has made to Younger abstention: (1) bad
faith, i.e., "cases of proven harassment or prosecutions undertaken by state officials
in bad faith without hope of obtaining a valid conviction"; and (2) extraordinary
circumstances, 	i.e., 	where 	"extraordinary circumstances 	render 	the 	state 	court
incapable of fairly and fully adjudicating the federal issues before it, ... creating an
10
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 10 of 29

extraordinarily pressing need for 	immediate federal equitable relief." 	Wilson 	v.
Emond, 373 F. App'x 98, 100 (2d Cir. 2010) (internal citations and quotation marks
omitted).
In the 	instant 	case, 	the 	allegations 	in the 	complaint are 	so 	vague 	and
conclusory that the Court is unable to determine with precision whether the Rooker-
Feldman doctrine or Younger abstention apply. However, the 	Court observes -
without finding - that one or both of the doctrines likely apply to bar subject matter
jurisdiction over many of Plaintiffs' claims. 	For instance, 	Plaintiffs 	allege 	that
"multiple judges knowingly issued custody orders after jurisdiction had been divested
or never existed - 	Family Court judges altering custody determinations reserved
exclusively to [the New York State] Supreme Court under DRL § 240, [New York
State] Supreme Court judges presiding over matrimonial cases that were void ab
initio, and federal judges insulating those rulings." ECF No. 1 at ,r 157. Similarly,
Plaintiffs allege Family Court Judge Jeffrey Wait of Saratoga County "weaponized"
his "September 4, 2025 Criminal Court order ... right after he signed TPO's in family
court .... All orders are void ab initio." Id. ,r 207. Plaintiffs also challenge rulings
from the Third Department of the Appellate Division of the New York Supreme Court
on "no fewer than ten emergency motions" (Id. ,r 225), multiple actions from New
York State Administrative Judges (Id. ,r 234--241), and an order of dismissal from
New York Court of Claims Judge Zainab Chaudhry (Id. ,r 247-253).
Given the nature of the allegations in this case, it is nearly certain that
multiple of these orders or rulings have rendered Plaintiffs the "state court loser,"
11
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 11 of 29

and therefore are sufficient to invoke the Rooker-Feldman doctrine to bar this court's
consideration of Plaintiffs' challenges to 	them. 	See, 	e.g., 	Bobrowsky 	v. 	Yonkers
Courthouse, 777 F. Supp. 2d 692, 705 (S.D.N.Y. 2011) (discussing when an order is
sufficiently final to render the plaintiff a "state court loser"). And it is also nearly
certain that the court is required to abstain from considering challenges to other
rulings or orders based on the Younger abstention doctrine. See Falco v. Justs. of the
Matrimonial Parts of Supreme Ct. of Suffolk Cnty., 805 F.3d 425, 427 (2d Cir. 2015)
(finding 	Younger 	abstention 	to 	be 	warranted 	where 	"Falco's 	federal 	lawsuit
implicates the way that New York courts manage their own divorce and custody
proceedings-a subject in which 'the states have an especially strong interest."').
Nevertheless, the substance and procedural posture of the case for each of the
particular rulings that Plaintiff challenges are ambiguous at this point, and require
the Court to refrain from a definitive ruling as to the application of either doctrine.
B. Immunity
Even aside from the potentially profound problems for Plaintiffs' complaint
raised by the Rooker-Feldman doctrine and Younger abstention, Plaintiffs' claims
against 	multiple 	defendants 	are 	likely 	also 	barred by principles 	of immunity.
Decisions by the Supreme Court "consistently have held that government officials are
entitled to some form of immunity from suits for damages. As recognized at common
law, public officers require this protection to shield them from undue interference
with their duties and from potentially disabling threats of liability." Harlow 	v.
Fitzgerald, 457 U.S. 800, 806 (1982). As with the Rooker-Feldman doctrine and
12
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 12 of 29

Younger abstention, though, the Court finds these considerations are not dispositive
due to the vague and conclusory nature of Plaintiffs' allegations.
Judicial Immunity
As indicated above, several Defendants in the instant case are judges, either
federal or state. Nevertheless, Plaintiffs maintain that these judicial defendants are
not entitled to judicial immunity because they acted without jurisdiction. See, e.g.,
ECF No. 1 ,r 3-34.
The principle that judges generally have absolute immunity for suits for money
damages for their judicial actions is well-settled. Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009). In addition to applying to judges, "[a]bsolute judicial immunity also
extends to those who, at the direction of a judicial officer, perform administrative
functions closely associated with the judicial process." Dieujuste v. Sin, 125 F.4th 397,
399 (2d Cir. 2025). This includes not only clerks, but also law guardians or attorneys
for children who serve as an arm of the court. See Yapi v. Kondratyeva, 340 F. App'x
683, 685 (2d Cir. 2009); Scotto v. Almenas, 143 F.3d 105, 111 (2d Cir. 1998). However,
judicial immunity does not apply either when a judge takes action outside of the
judge's judicial capacity, or when the judge takes action that - although judicial in
nature - is "in the complete absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9,
12 (1991).
Here, Plaintiffs allege that judicial immunity does not apply because the judge
was either unlawfully appointed (ECF No. 1 ,r 116), or acting in the clear absence of
all jurisdiction (Id. 	,r,r 157-58). They further argue that "the conduct alleged -
13
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 13 of 29

fabricating 	and 	backdating 	orders, 	manufacturing 	attorney 	assignments,
manipulating dockets, coordinating with clerks and attorneys, and weaponizing law
enforcement - are not protected judicial functions but administrative, conspiratorial,
and retaliatory acts undertaken to advance a racketeering enterprise." Id. ,r 158.
While Plaintiffs support this position with pages and pages of assertions, 	such
assertions are vague and conclusory, and insufficient to divest the judge and clerk
defendants of their judicial immunity. See Butcher v. Wendt, 975 F.3d 236, 241 (2d
Cir. 2020).
Other Forms of Immunity
In addition to alleging wrongdoing by judges and their staffs, Plai,ntiffs also
allege wrongdoing by multiple lawyer defendants, caseworkers and law enforcement
officials. In that regard, the Second Circuit's discussion in Cornejo v. Bell, 592 F.3d
121 (2d Cir. 2010) is instructive:
[There 	is] 	well-established 	precedent 	that 	"qualified 	rather 	than
absolute immunity is sufficient to protect government officials in the
exercise of their duties." DiBlasio v. Novello, 344 F.3d 292, 296 (2d Cir.
2003) (quoting Burns v. Reed, 500 U.S. 478, 486-87 (1991)) (internal
quotation mark omitted). However, there are certain instances where
executive 	employees, 	such 	as 	prosecutors, 	are 	entitled to 	absolute
immunity. Imbler v. 	Pachtman, 	424 U.S. 	409, 427 (1976). The real
distinction 	between whether 	an 	executive 	employee 	is 	entitled 	to
absolute 	or 	qualified immunity turns 	on the 	kind of function 	the
employee is fulfilling in performing the acts complained of. This is what
the Supreme Court has called a "functional" analysis. Briscoe v. LaHue,
460 U.S. 325, 342. Prosecutors are entitled to absolute immunity, for
example, 	because 	their 	prosecutorial 	activities 	are 	"intimately
associated with the judicial phase of the criminal process, and thus [are]
functions to which the reasons for absolute immunity apply with full
force." Imbler, 424 U.S. at 430.
Mutatis mutandis, absolute immunity also extends to non-prosecutor
14
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 14 of 29

officials when they are performing "functions analogous to those of a
prosecutor." Butz v. Economou, 438 U.S. 478 (1978). While any analogy
between 	two 	kinds 	of executive 	employees 	is 	never 	perfect, 	such
reasoning by analogy is at the heart of judicial thinking: things that are
essentially alike should be treated essentially the same. Thus, the Butz
Court 	held 	that 	an 	agency 	official 	who 	decides 	to 	institute 	an
administrative proceeding is entitled in such circumstances to absolute
immunity, 	since 	that 	decision is 	"very 	much like 	the 	prosecutor's
decision to initiate or move forward with a criminal prosecution." Id. at
515.
This Court has previously extended absolute immunity to state and
federal 	officials 	initiating 	noncriminal 	proceedings 	such 	as
administrative proceedings and civil litigation. See Barrett v. 	United
States, 798 F.2d 565, 572 (2d Cir.1986) (citing Butz, 438 U.S. at 512-17).
Of particular relevance here, we have held that an attorney for a county
Department of Social 	Services 	who 	"initiates 	and prosecutes 	child
protective orders and represents the interests of the Department and
the County in Family Court" is entitled to absolute immunity. Walden
v. Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984). The Wishengrad Court
concluded 	that 	given 	"the 	importance 	of the 	Department's 	[child
protection] 	activities, 	the 	need to pursue protective child litigation
vigorously 	and 	the 	potential for 	subsequent 	colorable 	claims," 	the
attorney must be 	accorded absolute 	immunity from 	§ 1983 claims
arising out of the performance of her duties. Id. We conclude that the
lawyer defendants in the instant case were fulfilling similar functions,
and that the district court thus properly extended to those defendants
absolute immunity from the § 1983 claims
Even qualified immunity, 	however, is sufficient to shield executive
employees from civil liability under § 1983 if either "(1) their conduct
'did not violate clearly established rights of which a reasonable person
would have known,' or (2) 'it was objectively reasonable to believe that
[their] acts did not violate these clearly established rights."' Young v.
County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (quoting Soares v.
Connecticut, 	8 F.3d 917, 920 (2d Cir. 	1993) (alteration in original)
(internal quotation marks omitted)); see also Harlow, 457 U.S. at 818.
Of relevance here, we have previously noted that the second Young
prong provides "substantial protection for caseworkers,'' Tenenbaum v.
Williams, 193 F.3d 581, 596 (2d Cir.1999), which is necessary because
"[p]rotective 	services 	caseworkers 	[must] 	choose 	between 	difficult
alternatives,'' id. (second alteration in original) (quoting van Emrik v.
15
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 15 of 29

Chemung County Dep't of Soc. Servs., 9 1	 1	 F.	2d 86 3 , 866 (2d Cir.1990)).
The Tenenbaum Court concluded that summary judgment should thus
be "readily available to these caseworkers in proper cases under the
qualified immunity doctrine." Id. at 597.
Cornejo, 592 F.3d at 1	 27-28.
While Cornejo discussed attorneys originating the actions against plaintiff, as
well as caseworkers working on the case, the principles set forth in Cornejo regarding
qualified immunity also extend to law enforcement officials.See McEvoy v. Spencer,
1
24 F.3d 92, 97 (2d Cir.1997) (finding that qualified immunity shields government
officials, including law enforcement officers, "from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.").
As with the judicial defendants discussed above, Plaintiffs allege that
principles of immunity do not apply because of the nefarious motives underlying their
actions.See, e.g., ECF No. 1 ,r 284 (regarding the law enforcement defendants,
"[q]ualified immunity provides no protection for knowingly violating clearly
established rights ....").Nevertheless, the Court finds Plaintiffs' vague and
conclusory assertions unpersuasive and insufficient to strip any of the public
official defendants of immunity for which they may be eligible.
C. Pleading Standards, Generally
Furthermore, Rule 8(a) of the Federal Rules of Civil Procedure requires a
complaint to contain, among other things, "a short and plain statement of the claim
showing that the pleader is entitled to relief.""'The statement should be plain because
the principal function of pleadings under the Federal Rules is to give the adverse
1
6
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 16 of 29

party fair notice of the claim asserted so as to enable him to answer and prepare for
trial."' Lang, 761 F. Supp. 3d at 600 (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42
(2d 	Cir. 	1988) 	(citations 	omitted). 	"The 	statement 	should 	be 	short 	because
'[u]nnecessary prolixity in a pleading places an unjustified burden on the court and
the party who must respond to it because they are forced to ferret out the relevant
material from a mass of verbiage."' Id. (citation omitted). "When a complaint does not
comply with the requirement that it be short and plain, the court has the power, on
its own initiative or in response to a motion by the defendant, to strike any portions
that are redundant or immaterial ... or to dismiss the complaint." Id.
The instant complaint, running to 545 paragraphs over 98 pages, "is neither
short nor plain, but rather is bloated, rambling, and teeming with irrelevant factual
digressions and improper legal argument." Lang, 761 F. Supp. 3d at 601. Dismissal
could be warranted on those grounds alone. See, e.g., Prezzi v. Schelter, 469 F.2d 691,
692 (2d Cir. 1972) (affirming dismissal of 88-page pro se complaint containing "a
labyrinthian 	prolixity 	of 	unrelated 	and 	vituperative 	charges 	that 	defied
comprehension [and therefore] failed to comply with the [short-and-plain-statement]
requirement of Rule 8").
D. Plaintiffs' Causes of Action
More to the point, dismissal is also warranted because the Court finds that
each of the 14 causes of action in Plaintiffs' complaint fails to state a plausible claim
for relief.
"[A] complaint must contain sufficient factual matter, accepted as true, to
17
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 17 of 29

'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting 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." Id. at 678. Where a plaintiff's factual allegations are "merely consistent
with" a defendant's liability, those allegations "'stop □ short of the line between
possibility and plausibility of entitlement to relief."' Id. (quoting Twombly, 550 U.S.
at 	557). 	Further, 	a 	pleading will 	not 	suffice 	where 	it 	offers 	only "labels 	and
conclusions," "a formulaic recitation of the elements of a cause of action, or tenders
"naked assertion[s]" devoid of "further factual enhancement." Id. (quoting Twombly,
550 U.S. at 555). "Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Iqbal, 556 U.S. at 679.
Counts I and IL- RICO Claims
Under 18 U.S.C. § 1962(c), it is unlawful for any person employed by or
associated with any enterprise engaged in or affecting interstate or foreign commerce,
"to conduct or participate, directly or indirectly, in the conduct of such' enterprises
affairs through a pattern of racketeering activity .... " Section 1961(d) further makes
it unlawful for any person to conspire to violate § 1961(c). Plaintiffs allege that each
individual defendant is liable under § 1962(c) for their own racketeering activity, and
under § 1962(d) for conspiring together in a racketeering enterprise. ECF No. 1 ,r,r
467-82.
18
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 18 of 29

As it relates to a pattern of racketeering under 18 U.S.C. § 1962(c), the Court
notes that the "pattern of racketeering activity" elements "are adequately pled where
plaintiff 	makes 	factual 	allegations 	sufficient 	to 	demonstrate 	that 	defendants
committed two or more predicate acts as part of a pattern of racketeering activity."
De Sole v. Knoedler Gallery, LLC, 974 F. Supp. 2d 274,299 (S.D.N.Y. 2013). Further,
fraud claims must "state with particularity the circumstances constituting fraud."
Fed. R. Civ. P. 9(b). To satisfy Rule 9(b), a complaint must "allege facts that give rise
to a strong inference of fraudulent intent." Berman v. Morgan Keegan & Co., 455 F.
App'x 92, 95 (2d Cir. 2012) (summary order) (quoting Acito v. IMCERA Grp., Inc., 47
F.3d 47, 52 (2d Cir. 1995)).
Yet the scheme here urged by Plaintiffs is literally incredible; the notion that
so many public officials and agencies across the state would work with other private
entities and individuals to perpetuate a scheme of illegal attorney appointments and
document manipulation to generate attorney fees that would fund their enterprise
and retaliate against Plaintiffs defies belief. Moreover, with respect to the substance
of Plaintiffs' claims, the Court notes that "conclusory, vague, and general allegations
of a criminal conspiracy do not ... suffice to establish that the defendants participated
in a 'pattern of racketeering activity' as prohibited by RICO." Tapia-Ortiz v. Winter,
185 F.3d 8, 11 (2d Cir. 1999). Because Plaintiffs' allegations are vague and conclusory,
and fail to give rise to a strong inference of fraudulent intent on the part of any
Defendant, the Court finds that Plaintiffs have failed to adequately plead their RICO
claims.
19
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 19 of 29

Counts III, N, and V.· 42 U.S.C. §§ 1983, 1985, 1986
Plaintiff alleges that all Defendants in this action, with the exception of the
Federal Judicial Defendants, "jointly and severally deprived Plaintiffs of rights
secured by the Constitution and laws of the United States," including rights under
the First Amendment, Fourth Amendment, and Fourteenth Amendment. ECF No. 1
,r 483. They also allege that all Defendants conspired to interfere with their civil
rights to federal access and equal protection in violation of 42 U.S.C. § 1985(2)-(3)
(Id. ,r 488), and that certain "Supervisory Defendants" violated 42 U.S.C. § 1986 when
they neglected to prevent the conspiracy (Id. ,r 494).
To establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must assert
that "a person" acting under color of state law deprived him of his "rights, privileges,
or immunities secured by the Constitution or laws of the United States." Bigwarfe v.
Bresnahan, No. 818CV578GTSDJS, 2018 WL 6174188, at *3 (N.D.N.Y. June 5, 2018),
report and recommendation adopted, No. 818CV0578GTSDJS, 2018 WL 5077196
(N.D.N.Y. Oct. 18, 2018). "The essential allegations of a § 1985(2) claim of witness
intimidation are (1) a conspiracy between two or more persons, (2) to deter a witness
by force, intimidation or threat from attending [federal] court or testifying freely in
any pending matter, which (3) results in injury to the plaintiff." Chahal v. Paine
Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984); see also Haddle v. Garrison, 525 U.S. 121,
125 (1998). To establish a violation of § 1985(3), the plaintiff must allege four
elements: 	(1) 	a 	conspiracy motivated by racial 	animus; 	(2) 	for 	the 	purpose 	of
depriving, either directly or indirectly, any person or class of persons of the equal
20
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 20 of 29

protection of the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a
person is either injured in her person or property or deprived of any right or privilege
of a citizen of the United States. United Broth. of Carpenters and Joiners of America,
Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29 (1983); Brown v. City of Oneonta,
221 F.3d 329, 341 (2d Cir. 2000).
To begin with, the factual allegations giving rise to Plaintiffs' § 1983 and§ 1985
claims do not rise to the level of the plausible. Moreover, the Second Circuit has long
held that, with respect to conspiracy claims under 42 U.S.C. §§ 1983 and 1985,
"complaints 	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; diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct." Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 325 (2d Cir. 2002); Dwares v. City of N. Y., 985 F.2d 94, 100 (2d Cir.
1993). Here, though Plaintiffs have alleged widespread fraud and other misconduct,
they have offered little factual detail regarding the substance of any specific act and
virtually no information, beyond their own conclusory assertions, as to when and how
the various defendants at multiple levels of government spread across much of the
state planned, communicated, cooperated, or conspired to deprive them of their First,
Fourth, or Fourteenth Amendment rights or the equal protection of the laws, or to
intimidate them to prevent their appearance in federal court. Accordingly, Plaintiffs'
allegations that Defendants are liable 	under 	42 	U.S.C. 	§§ 	1983 and 	1985 are
insufficient.
21
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 21 of 29

Finally, "Section 1986 does not provide substantive rights." Meyer v. Haines,
No. 1:24-CV-00791 (AJB/DJS), 2025 WL 1651154, at *19 (N.D.N.Y. June 11, 2025).
Rather, a claim under§ 1986 for neglect to prevent a conspiracy to interfere with civil
rights is contingent upon a plaintiff having a valid conspiracy claim under 42 U.S.C.
§ 1985. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir.
1993). As Plaintiffs' have not adequately pied a claim under § 1985, their claim that
Defendants violated§ 1986 must fail.
Counts VI, VII, and VIII- the ADA and the Rehabilitation Act
Plaintiffs 	allege 	that 	several 	public 	entity 	defendants 	are 	liable 	for
discrimination against them under Title II of the ADA (ECF No. 1 ,r,r 504-508), all
defendants are liable for retaliation under the ADA (Id. ,r,r 509-13), and several
federally-funded defendants are guilty of retaliation under the Rehabilitation Act (Id.
,r,r 514-18).
Title II of the ADA provides, in relevant part, that "no qualified individual with
a disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity." 42 U.S.C. 	§ 12132. To state a
discrimination claim under these provisions, a plaintiff must allege "(1) that he is a
'qualified individual' with a disability; (2) that he was excluded from participation in
a public entity's services, programs or activities or was otherwise discriminated
against by a public entity; and (3) that such exclusion or discrimination was due to
his disability." Phelan v. Thomas, 439 F. App'x 48, 50 (2d Cir. 2011) (citing Hargrave
22
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 22 of 29

v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003)).
Retaliation against any individual who has asserted rights under the ADA is
prohibited by Title V of that Act. See, e.g., Currytto v. Doe, 18-CV-1392, 2019 WL
2062432, at *8 (D. Conn. May 9, 2019) (citing Sarno v. Douglas Elliman-Gibbons &
Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)). "To state a retaliation claim under [the
ADA], a plaintiff must establish that '(i) plaintiff was engaged in protected activity;
(ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii)
an adverse decision or course of action was taken against plaintiff; and (iv) a causal
connection exists between the protected activity and the adverse action."' Currytto,
2019 WL 2062432, at *8 (quoting Weixel v. Bd. of Educ., 287 F.3d 139, 148 (2d Cir.
2002)). The same elements must be demonstrated for retaliation claims under the
Rehabilitation Act. See, e.g, Frantti v. New York, 414 F. Supp. 3d 257, 290 (N.D.N.Y.
2019), affd, 850 F. App'x 17 (2d Cir. 2021) (combining the analysis of retaliation
claims under the two statutes).
Among other things, the complaint in the instant case fails to plausibly allege
that Plaintiffs were excluded from participation or otherwise discriminated against
in any proceeding on the basis of their respective disabilities (ECF No. 1 ,r,r 504-508),
or that any adverse decision or course of action taken by the defendants was causally
connected to their complaints under the ADA (Id. ,r,r 509-518). Their allegations
regarding animus are no more than naked assertions devoid of factual enhancement.
For example, 	Plaintiffs state that "temporal proximity between Plaintiffs' ADA
activity and Defendants' retaliatory conduct demonstrates causation" (Id. ,r 511), but
23
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 23 of 29

Plaintiffs' allegations in this regard are so vague and conclusory as to negate their
value as circumstantial evidence of retaliation.
Counts IX-XIV: State Law Torts
Plaintiffs allege that various defendants are liable for multiple state law torts,
including intentional infliction of emotional distress 	("IIED"), fraud, 	conversion,
abuse of process, negligence per se, and defamation. ECF No. 1 ,r,r 519-45. None of
these causes of action are adequately pled or supported by plausible allegations.
At the outset, the Court notes that Plaintiffs' cause of action for each of these
torts fails to specify a complete set of factual allegations that would satisfy the
elements of the claim, leaving the Court to sift through an array of allegations and
attempting to match them to the elements. "It is not the duty of the defendants or
this Court to sift through the Complaint and guess which factual allegations support
which claims." Discon Inc. v. NYNEX Corp., No. 90-CV-546A, 1992 WL 193683, at
*16 (W.D.N.Y. June 23, 1992).
Further, in order to establish liability for IIED, a plaintiff must prove that the
defendants exhibited "(1) extreme and outrageous conduct" with the "(2) intent to
cause severe emotional distress," that there was "(3) a causal connection between the
conduct and the injury," and that "(4) severe emotional distress" resulted. Rentas v.
Ruffin, 816 F.3d 214, 227 (2d Cir. 2016) (quoting Bender v. City of New York, 78 F.3d
787, 790 (2d Cir.1996). To be sure, the conduct that Plaintiff alleges throughout the
complaint is, in many instances, extreme and outrageous. However, as discussed at
length above, their allegations are conclusory, speculative, and simply not plausible.
24
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 24 of 29

Under New York law, the elements of a civil fraud claim are that "(1) the
defendant made a material false representation, (2) the defendant intended to
defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the
representation, and (4) the plaintiff suffered damage as a result of such reliance."
JBCHoldings NY, LLC v. Pakter, 2013 WL 1149061, at*13 (S.D.N.Y. 2013) (quoting
Wall v. CSX Transp., Inc., 471 F.3d 410, 415-16 (2d Cir. 2006)). A claim for common
law fraud under New York law must satisfy the requirements of the heightened
pleading standard under Rule 9(b) of the Federal Rules of Civil Procedure.
JBCHoldings NY, LLC, 2013 WL at* 13 (citing Landesbank Baden-Wurttemberg v.
Goldman, Sachs & Co., 478 F. App'x 679, 681 (2d Cir. 2012)). As noted with regard
to Plaintiffs RICO claim, when alleging fraud Rule 9(b) requires that "a party must
state with particularity the circumstances ,constituting fraud or mistake. Malice,
intent, knowledge, and other conditions of a person's mind may be alleged generally."
Fed. R. Civ. P. 9(b). Yet "[t]he Second Circuit has clarified that although intent may
be alleged generally, 'we must not mistake the relaxation of Rule 9(b)'s specificity
requirement regarding condition of mind for a license to base claims of fraud on
speculation and conclusory allegations." Waldron v. Milana, No. 5:10-CV-0065
GTS/DEP, 2013 WL 2445047, at*3 (N.D.N.Y. June 5, 2013) (citations omitted). But
that is precisely what the claims appear to be based on in the instant case, speculation
and conclusory allegations.
New York law defines conversion as "the unauthorized assumption and
exercise of the right of ownership over goods belonging to another to the exclusion of
25
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 25 of 29

the owner's rights." Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d
Cir. 2006) (quoting Vigilant Ins. Co. of Am. v. Haus. Auth., 660 N.E.2d 1121, 1126
(1995)). To sufficiently plead a claim of conversion, a plaintiff must allege: "(1) the
property subject to conversion is a specific identifiable thing; (2) plaintiff had
ownership, possession or control over the property before its conversion; and (3)
defendant exercised an unauthorized dominion over the [property], to the alteration
of its condition or to the exclusion of the plaintiffs rights." Ultra Dairy LLC v.
Kondrat, 514 F. Supp. 3d 452, 459 (N.D.N.Y. 2021) (citation omitted). Here, Plaintiffs
have failed to sufficiently plead at least the second element, ownership and control
over the property which they allege to have been converted.
A valid abuse of process claim under New York law is comprised of three
elements: "(1) regularly issued process, either civil or criminal, (2) an intent to do
harm without excuse or justification, and (3) use of the process in a perverted manner
to obtain a collateral objective." AF Gloenco Inc. v. Ushers Mach. & Tool Co., No. 1:10-
CV-1128 GLS/RFT, 2011 WL 4593741, at *3 (N.D.N.Y. Sept. 30, 2011) (quoting
Curiano v. Suozzi, 63 469 N.E.2d 1324 (1984)). Plaintiffs' allegations in this complaint
with respect to the second and third elements are speculative and conclusory, and
therefore implausible.
Under New York law, if a plaintiff proves that a statutory violation has
occurred, he need not prove the traditional negligence elements of foreseeability, duty
and breach because it is considered negligence per se. Deso v. CSX Transp., Inc., 790
F. Supp. 2d 1, 8 (N.D.N.Y. 2011) (quoting Capriotti v. Consol. Rail Corp., 878 F. Supp.
26
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 26 of 29

429, 434 (N.D.N.Y. 1995)). However, the plaintiff must still show causation. Id.
Plaintiffs' negligence per se claim fails here because they have made the conclusory
assertion that any statutory violations occurred without any necessary elaboration to
justify their claim. That is, Plaintiffs' merely point to various provisions of New York
Social Services Law, New York Education Law, and New York Executive Law and
assert that they were violated by defendants without any explanation as to what
these statutes require or prohibit, or what constitutes a violation of those statutes.
Lastly, to state a claim for defamation under New York law, a plaintiff must
allege "(I) a written [or spoken] defamatory statement of and concerning the plaintiff,
(2) publication to a third party, (3) fault, (4) falsity of the defamatory statement, and
(5) special damages or per se actionability." Miller v. James, 751 F. Supp. 3d 21, 35
(N.D.N.Y. 2024), aff'd, No. 24-2785, 2025 WL 1085815 (2d Cir. Apr. 9, 2025) (internal
quotation marks 	and citation omitted). 	"In an 	action for 	libel or slander, 	the
particular words complained of shall be set forth in the complaint[.]" Williams v.
Buffalo Pub. Sch., 758 F. App'x 59, 65 (2d Cir. 2018) (quoting N.Y. C.P.L.R. 3016(a)).
In addition, the complaint must specify "the time, manner and persons to whom the
publications were made." Williams, 758 F. App'x at 65 (quoting Vardi v. Mut. Life
Ins. Co. of N. Y., 136 A.D.2d 453, 455 (1st Dep't 1988)).
Here, 	in 	addition 	to 	implausible 	conclusory 	and 	speculative 	assertions
unenhanced by further factual allegations, Plaintiffs' complaint fails to meet the level
of specificity required of defamation claims under New York law. Plaintiffs broadly
allege 	that 	defendants 	knowingly 	published 	false 	statements, 	but 	- 	with 	the
27
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 27 of 29

exception of judicial defendants labelling him a "narcissist" and "abuser" - 	fail to
identify the particular words complained of. Moreover, Plaintiffs fail to specify the
time, manner and persons to whom the pu?lications of any defamatory statements
were made.
III. Opportunity to Amend
For all of the foregoing reasons, the Court finds that Plaintiffs' complaint [ECF
No. 1] must be dismissed as frivolous. Nevertheless, the Second Circuit has stated
that failure to provide notice and an opportunity to be heard prior to dismissal is a
"bad practice in numerous contexts" 	and "reversible error" in others. 	Curcio v.
Abrams, No. 22-693, 2023 WL 31183, at *2 (2d Cir. Jan. 4, 2023). The usual practice
is to allow leave to replead a deficient complaint, especially where a complaint has
been submitted prose. See Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994). Therefore,
Plaintiffs may file an amended complaint, setting forth the factual and legal bases
for their claims, within 30 days of the date of this order. See Carmel v. CSH &1
C, 32
F. Supp. 3d 434, 435 (W.D.N.Y. 2014).
The Court recognizes there are numerous motions pending on the docket at
present, including motions to vacate entries of default, motions for enlarged pages,
and multiple motions by Plaintiffs. The Court will consider such motions in due
course, 	should Plaintiffs 	timely file 	an amended complaint that 	addresses 	the
multitude of deficiencies identified in this decision.
CONCLUSION
For the foregoing reasons, it is hereby
28
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 28 of 29

ORDERED that Plaintiffs shall file an amended complaint within thirty (30)
days after the date of filing of this Decision and Order. Plaintiffs are advised that an
amended complaint is intended to completely replace the prior complaint in the
action. Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) ("It is well established
that an amended complaint ordinarily supersedes the original and renders it of no
legal effect.") (quoting Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)).
In other words, Plaintiffs' amended complaint must be pled so as to stand alone as
the sole complaint in this action that Defendants must answer. Allen v. Erie Cnty.
Med. Ctr. Corp., No. 25-CV-136 (JLS), 2025 WL 641299, at *4 (W.D.N.Y. Feb. 25,
2025); and it is further ordered
ORDERED that response deadline of January 2, 2026 set for all defendants at
ECF No. 160 is hereby adjourned indefinitely. A new deadline shall be established, if
appropriate, following the Court's review of Plaintiffs' amended complaint, if filed.
If plaintiff fails to file an amended complaint, or files a similarly frivolous
amended complaint, this action will be dismissed with prejudice.
Dated:
SO ORDERED.
December ~ 2025
Rochester, New York
ENTER:
. 	ACCA
United States District Judge
29
Case 1:25-cv-01265-MAV-CDH Document 179 Filed 12/09/25 Page 29 of 29