Flores v. Carvana

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________________
Valerie Flores,
Plaintiff,
v.
1:25-cv-1826
(MAD/MJK)
Carvana,
Defendant.
______________________________________________________________________
Valerie Flores, Plaintiff pro se
Mitchell J. Katz, U.S. Magistrate Judge
ORDER and REPORT-RECOMMENDATION
Flores commenced this action on December 28, 2025 by filing a
complaint (“Compl.” Dkt. 1) and an application to proceed in forma
pauperis (“IFP”) (Dkt. 2). Flores also filed a motion to appoint counsel. (Dkt.
3).
I. Background
The Complaint alleges the following: “[Defendant] said they would
only give [Flores] so much for [her] vehicle, but said [she] had to have a
$250,000 down payment.” (Dkt. 1 at 4) (cleaned up). The Complaint
further alleges that Flores “applied for a car purchase with
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2
[Defendant], which they low balled [her] on [her] trade in and then said
to purchase a different vehicle [she] would have to put a $250k down
payment down. That seems to be fraud and misrepresentation.” (Dkt. 1
at 5). Flores alleges that “[m]onetary damages are needed immediately
to repair the injury.” (Id.). So, Flores requests “that the court award
[her] $250k in punitive damages and $40k for a vehicle.” (Id.).
II. IFP Application
Flores declares that she is unable to pay the filing fee in her IFP
application. (Dkt. No. 2). After reviewing her application and based on
the information contained therein, this Court finds that Flores is
eligible for IFP status.
III. Standard of Review
Courts can sua sponte dismiss a case “at any time” if they
determine that an action is (1) frivolous or malicious; (2) fails to state a
claim on which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. See 28 U.S.C. §
1915 (e)(2)(B)(i)-(iii). When deciding whether an action is frivolous,
courts consider whether the complaint lacks an arguable basis in law or
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
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3
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuse of court process, and to discourage the waste of judicial resources.
Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th
Cir. 1974).
Courts have a duty to show liberality toward pro se litigants and
must exercise extreme caution when sua sponte dismissing pro se
complaints before adverse parties have been served and had an
opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363 (2d Cir. 2000) (per curiam) (finding that a
district court may dismiss a frivolous complaint sua sponte even when
plaintiff has paid the filing fee). Still, courts have a responsibility to
ensure that a claim is not frivolous before permitting a plaintiff to
proceed. See id.
IV. 	Discussion
Below, the Court reviews the sufficiency of Flores’ Complaint and
addresses her motion to appoint counsel. The Court recommends that
the District Court dismiss the Complaint for failure to state a claim
under 15 U.S.C §§ 52, 53, and 18 U.S.C. § 1341, because those statutes
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do not allow individuals to bring private actions. The Court also denies
Flores’ motion to appoint counsel.
A. The District Court should dismiss the Complaint for lack
of subject matter jurisdiction because private plaintiffs
cannot assert claims under 15 U.S.C. §§ 52, 53, or 18 U.S.C
§ 1341.
Concerning Flores’ 15 U.S.C. §§ 52, 53 claims under the Federal
Trade Commission Act (“FTCA”), the Federal Trade Commission
(“FTC”) “retains regulatory and enforcement authority over the
advertising (as opposed to the labeling) of foods, drugs, and cosmetics.”
Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 830 n.8 (1986)
(Brennan, J., dissenting) (citing 15 U.S.C. §§ 52-55). The FTC is
“empowered and directed to prevent persons, partnerships, or
corporations . . . from using . . . unfair or deceptive acts or practices in
or affecting commerce.” See 15 U.S.C. § 45(a)(2). So, the FTCA provides
no private right of action for individuals, like Flores, to seek relief
because only the FTC may enforce the FTCA’s provisions. See Charych
v. Siriusware, Inc. , 790 Fed. App’x 299, 303 n.3 (2d Cir. 2019) (“There is
no private right of action under the FTCA.”) (cleaned up); see also Oliver
v. U.S. Bancorp, No. 14-CV-8948, 2015 WL 4111908, at *6 (S.D.N.Y.
July 8, 2015) (stating that “it is well settled that there is no private
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right” under the FTCA). Because Flores has no private right of action
under 15 U.S.C. §§ 52, or 53, the Court recommends dismissing these
claims for lack of subject matter jurisdiction.
Moving to Flores’ 18 U.S.C § 1341 claim, “[i]t is a truism, and has
been for many decades, that in our federal system crimes are always
prosecuted by the Federal Government, not … by private complaints.”
Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d
Cir. 1972). Indeed, Courts in the Second Circuit have consistently held
that “federal criminal statutes do not provide private causes of action.”
Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (summary order);
see also Xu v. Neubauer, 166 F. Supp. 3d 203, 207 (D. Conn. 2015)
(“Federal criminal statutes do not provide private rights of action …”).
More specifically, the Second Circuit has held that the federal mail
fraud statute—the statute at issue here—creates no private right of
action. See Nath v. Select Portfolio Servicing, Inc., 732 F. App’x 85, 87
(2d Cir. 2018) (summary order)). And because no private right of action
exists under 18 U.S.C § 1341, Flores cannot state a claim under this
statute.
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Since Flores brought this Complaint as a private individual, the
District Court should dismiss her claims because she cannot state a
claim under 5 U.S.C. §§ 52, 53, or 18 U.S.C § 1341. See Trisvan v.
Burger King Corp., No. 19-CV-6396, 2020 WL 13851936, at *2 (E.D.N.Y.
Mar. 2, 2020) (dismissing plaintiff's FTCA claim because “[t]he FTCA
does not provide a private right of action”) (citing cases); see also
Valentin Christian v. Town of Riga, 649 F. Supp. 2d 84, 90 (W.D.N.Y.
2009) (dismissing plaintiff’s claims brought under 18 U.S.C. § 1341,
among other criminal statutes, because “none of the provisions plaintiff
cites includes an express private right of action, nor may such a right be
implied from the language of the statutes.”).
B. Even if the District Court determines that Flores has
stated a claim under 15 U.S.C. §§ 52, 53, and 18 U.S.C §
1341, it should dismiss the Complaint because it fails to
state a claim under Rule 8.
Even if the District Court decides that Flores’ Complaint is not
barred because 15 U.S.C. §§ 52, 53, and 18 U.S.C § 1341 do not allow
private causes of action, the Complaint still fails to state a claim upon
which relief can be granted. Pleadings must 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). Rule 8’s purpose
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“is to give fair notice of the claim being asserted so” adverse parties
have “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)
(cleaned up). Rule 8 also requires that the pleading include “a short and
plain statement of the grounds for the court’s jurisdiction” and “a
demand for the relief sought[.]” See Fed. R. Civ. 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). And so, 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)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Said
another way, “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements do not suffice.” Ashcroft, 556
U.S. at 678 (cleaned up).
Here, the Complaint does not state a claim. In total, Flores alleges
“fraud” and “misrepresentation” because Defendant “low balled” her on
a car trade-in and told her that she needed to “put a $250k down
payment” towards purchase of a different vehicle. (Dkt. 1, at 5).
Liberally construed, the Complaint does not allege fraud. The
Complaint neither alleges that Defendant misrepresented anything nor
sugests that Defendant knowingly made a false statement in reckless
disregard of the truth. Moreover, the Complaint does not allege how
Flores justifiably relied on any alleged misrepresentation that
Defendant made and does not allege that Flores suffered any harm or
injury because of Defendant’s alleged misrepresentation.
At bottom, Flores’ Complaint amounts to an “unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at
678. And that is not enough to state a claim. See, e.g., Lesson v. Jane
Doe, No. 1:25-CV-00188 (AMN/TWD), 2025 WL 1291533 (N.D.N.Y. May
5, 2025) (adopting report and recommendation that dismissed a
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plaintiff's excessive force claim because that plaintiff failed to “identify
what force” was used against him or “how it was excessive.”).
C. Flores’ motion to appoint counsel is denied because she
has not adequately pleaded any substantive claims.
Flores moves for an order appointing counsel, claiming she is
unable to afford an attorney and has “been unsuccessful in finding legal
counsel for this consumer issue.” (Dkt. 3, at 1). The Court denies Flores’
motion for the reasons set forth below.
To start, there is no right to the appointment of counsel in civil
matters. See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). The
factors assessed in reviewing a motion for counsel include “the merits of
the plaintiff's case, the plaintiff’s ability to pay for private counsel, the
plaintiff’s efforts to obtain a lawyer, the availability of counsel, and the
plaintiff’s ability to gather the facts and deal with the issues if
unassisted by counsel.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170,
172 (2d Cir. 1989). Of these factors, the one that “command[s] the most
attention [is] the merits.” Id.
In Terminate Control Corp. v. Horowitz, the Second Circuit
reasoned: “The district judge should first determine whether the
indigent’s position seems likely to be of substance.” 28 F.3d 1335, 1341
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(2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.
1986)). The court added: “If the claim meets this threshold requirement,
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 th[e] case why appointment of counsel
would be more likely to lead to a just determination.” Id. In any event,
appointment of counsel must be made carefully to preserve the
“precious commodity” of volunteer lawyers for those litigants who truly
need a lawyer’s assistance. Cooper, 877 F.2d at 172 (2d Cir. 1989).
Here, even if Flores provided an explanation of her need for
counsel and documentation of her efforts to secure counsel, which she
has not, the main facts upon which this Court may base its decision
concerning the substance of this action are those portions of Flores’
Complaint where she states the facts surrounding her claims. And
when a plaintiff provides little more than allegations relating to her
claims, she does not meet the first requirement imposed by the Second
Circuit concerning applications seeking appointment of pro bono
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counsel. See Harmon v. Runyon, No. 96-CV-6080, 1997 WL 118379
(S.D.N.Y. Mar. 17, 1997).
As it stands, Flores has not met the first requirement governed by
the Second Circuit concerning applications for pro bono counsel. Indeed,
as described more fully above, Flores’ Complaint references statutes
that do not provide her with a claim and/or remedy. Additionally,
Flores’ Complaint has otherwise offered no more than unclear
allegations related to her claims. Therefore, the Court finds
appointment of counsel unwarranted.
V. 	Opportunity to Amend
Generally, before courts 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
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).
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The Court recommends dismissing Flores’ Complaint with
prejudice and without leave to amend because any amendment would be
futile. Flores cannot cure the lack of subject matter jurisdiction. But if
the District Court finds that it has subject matter jurisdiction, it should
dismiss Flores’ Complaint without prejudice and with leave to amend so
that Flores may amend her Complaint to include facts that make out
each claim.
VI. 	Conclusion
WHEREFORE, based on the findings above, it is hereby
ORDERED that Flores’ motion to proceed in forma pauperis
(Dkt. 2) is GRANTED, and it is further
ORDERED, that Flores’ motion for appointment of counsel (Dkt.
3) is DENIED; and it is further
RECOMMENDED that Flores’ Complaint (Dkt. 1) be
DISMISSED WITH PREJUDICE and WITHOUT LEAVE TO
AMEND because the District Court lacks subject matter
jurisdiction; and it is further
RECOMMENDED, that if the District Court does have subject
matter jurisdiction, then the District Court should dismiss Flores’
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Complaint WITHOUT PREJUDICE and WITH LEAVE TO AMEND
because the Complaint fails to state a claim; and it is
ORDERED that the Clerk provide Plaintiff with a copy of this
Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the Second
Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
Under 28 U.S.C. § 636(b)(1), 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 (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984
F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
Dated: February 3, 2026.
_______________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 13 of 44

Oliver v. U.S. Bancorp, Not Reported in F.Supp.3d (2015)
2015 WL 4111908
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Evans v. Select Portfolio Servicing, Inc., E.D.N.Y.,
September 30, 2020
2015 WL 4111908
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Cathy OLIVER and Ra Maa Nu Amen Bey, Plaintiffs,
v.
U.S. BANCORP, (As Individual & Trustee) a/
k/a U.S. Bank, NA a/k/a U.S. Bank National
Association, C/O Registered Agent, the
Corporation Trust Company, Defendant.
No. 14–CV–8948 (PKC).
|
Signed July 8, 2015.
MEMORANDUM AND ORDER
CASTEL, District Judge.
*1 Plaintiffs Cathy Oliver and Ra Maa Nu Amen Bey,
proceeding pro se, commenced this action against defendant
U.S. Bank National Association sued herein as “U.S.
Bancorp” (“U.S.Bank”) pursuant to the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Plaintiffs
assert, among other things, that U.S. Bank misrepresented
its right to collect upon an alleged mortgage loan debt of
Ms. Oliver's. Defendant moves to dismiss the Complaint
pursuant to Rule 12(b)(6), Fed.R.Civ.P. For reasons to be
explained, defendant's motion to dismiss is granted. Most
of plaintiffs' claims are barred by the FDCPA's one-year
statute of limitations. Any claim not explicitly time-barred is
dismissed for failure to state a plausible claim to relief. 1
1 Defendant also seeks to dismiss the Complaint on
the basis that U.S. Bank is not a “debt collector,” as
defined by the FDCPA. (Def. MTD Brief, § I(C).)
Defendant further asserts that Mr. Amen Bey lacks
standing to bring a claim against U.S. Bank, and
as such his claims should be dismissed pursuant
to Rules 12(b)(1) and 12(b) (6), Fed.R.Civ.P. (Id.
§ II.) Because there is no dispute that Ms. Oliver
has standing to bring this action and in light of the
Court's dismissal of the Complaint in its entirety
on other grounds, the Court need not reach these
additional arguments.
BACKGROUND
Plaintiffs Cathy Oliver and Ra Maa Nu Amen Bey are co-
owners of certain real property located at 42 Brookdale Circle,
New Rochelle in Westchester County, New York. (Compl., §§
I–II (Dkt. No. 1); Pl. Opp. to MTD, “Pl. Opp.” ¶ 2 (Dkt. No.
17.))
In May 2010, defendant U.S. Bank commenced a foreclosure
action in the Supreme Court of the State of New York,
Westchester County (the “Foreclosure Action”) in response to
Ms. Oliver's alleged default on her mortgage loan payments. 2
(See Complaint in the Foreclosure Action, Index No.
13318/10, “Foreclosure Action Compl.,” (Decl. of Robin L.
Muir, “Muir Decl.” (Dkt. No. 15, Ex. B.))) 3 The Foreclosure
Action Complaint identifies the mortgaged premises as
“42 BROOKDALE CIRCLE, NEW ROCHELLE, N.Y.
10801.” (Id.)
2 The plaintiff in the Foreclosure Action is
“US Bank National Association, as Trustee
for CSMC Mortgage–Backed Pass–Through
Certificates, Series 2006–4.” (See Foreclosure
Action Compl.) The defendant in the present action
is also known as “US Bank National Association.”
In defendant's motion to dismiss, the entity is
referred to as: “Defendant U.S. Bank National
Association, as Trustee for CSMC Mortgage–
Backed Pass–Through Certificates, Series 2006–
4 s/h/a U.S. Bank Corp., as Trustee, a/k/a U.S.
bank, NA a/k/a U.S. Bank National Association
(“U.S.Bank”).”
3 The Court takes judicial notice of the fact that
filings in the Foreclosure Action, submitted to this
Court by plaintiffs and defendants (see Dkt. Nos.
15, 17, 20, 22), contain certain representations and
were filed on certain dates. The Court does not
consider the Foreclosure Action filings for the truth
of their contents. See Staehr v. Hartford Fin. Servs.
Grp., Inc., 547 F.3d 406, 425 (2d Cir.2008) (“[I]t is
proper to take judicial notice of the fact that ... prior
lawsuits, or regulatory filings contained certain
information, without regard to the truth of their
contents ....“ (emphasis in original)).
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 14 of 44

Oliver v. U.S. Bancorp, Not Reported in F.Supp.3d (2015)
2015 WL 4111908
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
On November 10, 2014, plaintiffs commenced the instant
action, alleging that U.S. Bank “engaged in a pattern of
misrepresentation and deceptive practices in the collection
of an alleged debt,” in violation of the FDCPA. (Compl.,
§ III.) In context, the Complaint's reference to “collection
proceedings” refers to the Foreclosure Action commenced on
May 19, 2010. (See Foreclosure Action Compl. & Summons
(Muir Decl., Ex. B.)) Plaintiffs' allege, inter alia, that U.S.
Bank misrepresented (1) their status as a creditor; (2) the
character, amount, and legal status of the alleged debt; (3)
that they are owed default interest, attorney's fees, and other
expenses; and (4) that they were in possession of an alleged
debt when they commenced collection proceedings. (Compl.,
§ III.) Plaintiffs seek injunctive relief, damages, a restitution
order, and costs and fees. (Id. at § IV.)
On March 3, 2015, U.S. Bank moved to dismiss the
Complaint. (Dkt. No. 13.) Plaintiffs opposed the motion on
March 27, 2015. (Dkt. No. 17.) After U.S. Bank submitted a
reply memorandum on April 7, 2015 (Dkt. No. 19), the Court
provided plaintiffs with another opportunity to respond. (Dkt.
No. 21.) Plaintiffs filed a further opposition to the motion to
dismiss on June 17, 2015. (Dkt. No. 22.)
I. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6),
Fed.R.Civ.P., “a complaint must contain sufficient factual
matter, accepted as true, to ‘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)). “ ‘Labels and conclusions' or ‘a formulaic recitation
of the elements of a cause of action will not do,’ “ rather, a
plaintiff must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at
555). In considering a Rule 12(b) (6) motion to dismiss, all
non-conclusory factual allegations are accepted as true, see
id. at 678–79, and all reasonable inferences are drawn in favor
of the plaintiff. See In re Elevator Antitrust Litig., 502 F.3d
47, 50 (2d Cir.2007) (per curiam). Moreover, plaintiff's pro se
pleadings are given a liberal and generous construction and
are read “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir.2006) (internal quotation marks omitted). The Court may
consider documents annexed to the complaint or incorporated
by reference into the complaint without converting the motion
into a motion for summary judgment. See Int'l Audiotext
Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir.1995).
II. FDCPA's One–Year Statute of Limitations
*2 Most of plaintiffs' FDCPA claims are dismissed as
time-barred. A claim under the FDCPA must be brought
within one year from the date on which the violation occurs.
15 U.S.C. § 1692k(d) (“An action to enforce any liability
created by this subchapter may be brought ... within one
year from the date on which the violation occurs.”) The
continued prosecution of a foreclosure or collection suit is
not a continuing violation under the FDCPA-if the same
alleged misrepresentation is repeated in court filings, the
claim accrues on the date of the initial representation. A
new FDCPA claim only arises if a new misrepresentation is
alleged. See Calka v. Kucker, Kraus & Bruh, LLP, 98–cv–
0990 (RWS), 1998 WL 437151, at *3 (S.D.N.Y. Aug. 3, 1998)
(concluding that FDCPA claim accrued on date that state court
lawsuit was filed in the absence of an allegation that new
misrepresentations were made in subsequent court filings,
rejecting theory that each action in the prosecution of a lawsuit
amounts to a continuing violation of the FDCPA); Sierra v.
Foster & Garbus, 48 F.Supp.2d 393, 395 (S.D.N.Y.1999)
(dismissing an FDCPA claim because a summons and
complaint did not re-start the statute of limitations where
the court filings contained the same alleged deceptive
representation as previous communications); DeJesus v. BAC
Home Loans Servicing, LP, 13–cv–2864 (KAM)(VVP), 2014
WL 4804999, at *4–5 (E.D.N.Y. Sept. 26, 2014) (concluding
that “[t]he established law in this Circuit does not support”
plaintiffs' argument “that the fact that the Foreclosure Action
is ongoing requires a finding that their FDCPA claim is
timely”).
Here, a number of plaintiffs' claims are time-barred because
they allege violations that occurred more than one year
before the date of the commencement of this action on
November 10, 2014. Any FDCPA claim premised upon
an alleged misrepresentation contained in the Foreclosure
Action Complaint is untimely because the claim accrued
when the Foreclosure Action was commenced in May 2010,
over four years before plaintiffs brought the instant action.
(See Compl., § III ¶ 2; Foreclosure Action Summons &
Compl. (Muir Decl ., Ex. B.)) That some of the alleged
misrepresentations in the Foreclosure Action Complaint were
repeated in subsequent state court filings does not amount to
a new violation of the FDCPA and does not restart the statute
of limitations. See Calka, 1998 WL 437151, at *3; Sierra,
48 F.Supp.2d at 395; DeJesus, 2014 WL 4804999, at *4–5.
The following claims are based on representations made in
the Foreclosure Action Complaint, and thus are dismissed as
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Oliver v. U.S. Bancorp, Not Reported in F.Supp.3d (2015)
2015 WL 4111908
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
time-barred: U.S. Bank's alleged misrepresentation (1) of its
status as a creditor rather than a debt collector (Compl., § III
¶¶ 2, 4, 6, 27, 28, 29); (2) of the character, amount, and legal
status of the alleged debt (id. § III ¶¶ 5, 10); (3) that it is owed
default interest, attorney's fees, and other expenses (id. § III
¶¶ 7, 16); and (4) that it was in possession of an alleged debt
when it commenced collection proceedings. (Id. ¶ 25.)
*3 To the extent plaintiffs allege that U.S. Bank made new
misrepresentations regarding the amount of the debt and other
expenses owed in the “Affidavit of Merit and Amounts Due
and Owing” submitted in the Foreclosure Action in August
2013, the FDCPA's statute of limitations still bars the claim.
(See “Affirmation of Regularity,” Ex. A (“Affidavit of Merit
and Amounts Due and Owing) (Muir Reply Decl., Ex. A (Dkt.
No. 20)); Pl. Opp., ¶¶ 7–8.) The statute of limitations for
a violation that occurred in August 2013 expired in August
2014, three months before the commencement of this action.
Further, to the extent plaintiffs allege that U.S. Bank
made new misrepresentations regarding the amount of
attorney's fees due in U.S. Bank's August 22, 2014 “Attorney
Affirmation” filed in the Foreclosure Action, (Pl. Second
Opp. to MTD, ¶¶ 18, 20 & Ex. S of Ex. 1 (Dkt. Nos. 22 &
22–8)), the claim is also still untimely. Plaintiffs allege that
“US BANK misrepresented they are owed ... attorney's fees ...
[as] the default provision written in alleged note does not
clearly state nor claim debt owner can collect ... attorney's
fees.” (Compl., § III ¶ 7.) The Foreclosure Action Complaint
asserts that Ms. Oliver owes “reasonable attorney's fees if
provided for in the mortgage.” (Foreclosure Action Compl., p.
5.) In August 2013, U.S. Bank represented that the mortgage
did allow for attorney's fees; U.S. Bank submitted to the state
court a copy of Ms. Oliver's note and mortgage as exhibits
to their “Affirmation of Regularity,” which respectively
represent that the “Note Holder” or “Lender” may collect
reasonable attorney's fees under specified circumstances.
(See “Affirmation of Regularity,” Ex. B (“Note,” ¶ 6(E)),
Ex. C (“Mortgage,” ¶ 22.)) In August 2014, U.S. Bank
submitted an affirmation in the Foreclosure Action in support
of the state court granting attorney's fees in the amount
of $3,025. (Pl. Second Opp. to MTD, Ex. S of Ex. 1.)
Plaintiffs' allegations concern whether U.S. Bank is entitled
to any attorney's fees; plaintiffs do not allege that U.S. Bank
misrepresented the precise amount of attorney's fees owed.
As such, U.S. Bank's August 2014 submission does not restart
the statute of limitations in this instance. Plaintiffs' claim
regarding attorney's fees accrued at the commencement of the
Foreclosure Action and at the latest in August 2013 when U.S.
Bank submitted copies of Ms. Oliver's note and mortgage.
The claim is thus barred by FDCPA's statute of limitations.
As previously referenced, plaintiffs allege a number of
claims that are based on representations made in U.S.
Bank's “Affirmation of Regularity,” submitted to the state
court in the Foreclosure Action in August 2013. (See
Muir Reply Decl., Ex. A & B.) Any FDCPA claims
premised upon an alleged misrepresentation contained in the
“Affirmation of Regularity” and its accompanying exhibits
are untimely because the claims accrued in August 2013,
more than one year before plaintiffs brought the instant action.
Thus the following allegations are time-barred: (1) “US
BANK misrepresented that MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS (“MERS”) had possession of
alleged debt, executed by Cathy Oliver.” (Compl., § III ¶
18) (See “Affirmation of Regularity,” Ex. C (“Mortgage”),
Ex. D (“Assignment of Mortgage to U.S. Bank National
Association.”)); (2) U.S. Bank “false[ly] represent[ed] ...
service of written notice accelerating alleged debt” (Pl. Opp.,
¶ 11; see Compl., ¶ 19) (See “Affirmation of Regularity,”
Ex. A (“Affidavit of Merit and Amounts Due and Owing,”
¶¶ 5–7), Ex. F (“Demand Letter”), Ex. G (“RPAPL § 1304
90 Day Notice .”)); (3) U.S. Bank “false[ly] represent[ed] ...
service of written notice of alleged debt default” (Pl. Opp.,
¶ 12; see Compl., ¶ 20) (See “Affirmation of Regularity,”
Ex. A (“Affidavit of Merit and Amounts Due and Owing,”
¶¶ 5–7), Ex. F (“Demand Letter”), Ex. G (“RPAPL § 1304
90 Day Notice.”)); and (4) U.S. Bank “falsely represented
they served Cathy Oliver notice of alleged debt collection
proceedings” (Pl.Opp., ¶ 6) (See “Affirmation of Regularity,”
Ex. L (“Affidavits of Service”), Ex. M (“Affidavits of
Service of the Summons, per CPLR § 3215.”)) Each of these
claims are traceable to representations in the exhibits to the
“Affirmation of Regularity,” cited above, and thus were time-
barred three months before the initiation of the present action.
III. Plaintiffs Fail to State a Claim Pursuant to Section
1692g
*4 Plaintiffs also allege that U.S. Bank violated sections
1692g(a) and (b). (Compl., § III ¶¶ 10–12; Pl. Second Opp.
to MTD, ¶ 32 .) Specifically, plaintiffs allege that in violation
of section 1692g, U.S. Bank (1) “misrepresented the amount
of the alleged debt” (Compl., § III ¶ 10); (2) “misrepresented
the name of the creditor to whom the alleged debt is allegedly
owed” (id. § III ¶ 11); (3) “misrepresented they served Cathy
Oliver and/or agents a statement stating ... that if she notifies
the debt collector in writing within the thirty-day initial
communication period that the debt, or any portion thereof,
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is disputed, the debt collector will obtain verification of the
debt and then mail it to Cathy Oliver (id. § III ¶ 12); and (4)
“failed and refused to verify and/or validate the alleged debt,
after receiving notice of dispute from Plaintiff.” (Pl. Second
Opp. to MTD, ¶ 32.)
Section 1692g(a) establishes a scheme in which once a debt
collector has an “initial communication” with a consumer,
the debt collector has five days to send the consumer written
notice containing certain specified information. 15 U.S.C. §
1692g(a). Among the information that must be communicated
to the consumer is that, if within thirty days of receipt of the
notice the consumer notifies the debt collector that he or she
contests the debt, the debt collector will send verification of
the debt. Id. § 1692g(a)(4). If within the thirty-day period just
described, the consumer in fact notifies the debt collector in
writing that the debt is disputed, section 1692g(b) provides for
a temporary moratorium on collection efforts. Id. § 1692g(b).
The statute specifies that formal pleadings in a civil action
are not considered an “initial communication” for purposes of
section 1692g(a). Id. § 1692g(d).
Application of both 1692g(a) and (b) depend on the existence
of an “initial communication” from the debt collector to the
consumer. See id. § 1692(a) & (b); see also Lane v. Fein, Such
& Crane, LLP, 767 F.Supp.2d 382, 385–88 (E.D.N.Y.2011)
(dismissing plaintiffs' claims pursuant to sections 1692g(a)
and (b), where the only communication from the debt
collector that plaintiffs identified was the service of a state
court complaint, reasoning that plaintiffs failed to identify an
“initial communication”). Here, plaintiffs fail to allege any
“initial communication” from U.S. Bank, and therefore fail
to state a claim for a violation of sections 1692g(a) and (b).
As explicitly specified in the statute, U.S. Bank's state court
submissions in the Foreclosure Action do not constitute an
“initial communication.” 15 U.S.C. § 1692g(d). Plaintiffs'
claims pursuant to section 1692g are therefore dismissed.
IV. Plaintiffs Remaining Claims are Conclusory
Many of plaintiffs' claims discussed above as barred by the
statute of limitations are also conclusory. However, some of
the Complaint's claims are so vague and conclusory that the
Court cannot discern whether they are barred by the statute
of limitations. A fair reading of these claims does not reveal
the actions or omissions to which plaintiffs are referring.
They are conclusory and hopelessly fail to satisfy Rule 8(a),
Fed.R.Civ.P.
*5 Under Rule 8(a)(2), Fed.R.Civ.P., a pleading must
contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” In Iqbal, the Supreme
Court interpreted this pleading standard to mean that “a
complaint must contain sufficient factual matter, accepted
as true, to ‘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.
“When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief;” however,
pleadings that are “no more than conclusions are not entitled
to the assumption of truth.” Id. at 679. A complaint that
merely “offers ‘labels and conclusions' “ or tenders “ ‘naked
assertion[s]’ devoid of ‘further factual enhancement’ “ does
not suffice. Id. at 678 (quoting Twombly, 550 U.S. at 555,
557). “While legal conclusions can provide the framework of
a complaint, they must be supported by factual allegations.”
Id. at 679. Thus, a formulaic recitation of acts prohibited
by the FDCPA, without any alleged factual content, cannot
survive a motion to dismiss. See id. at 678; see also Ghartey
v. Farnsworth, 08–cv–6682 (LAP), 2010 WL 199691, at *3
(S.D.N.Y. Jan. 11, 2010) (“Plaintiff fails to state a claim
under the FDCPA because he does not allege facts sufficient
to permit an inference that any Defendant violated any part
of that statute.”); Sembler v. Attention Funding Trust, 07–
cv–2493 (RJD)(LB), 2009 WL 2883049, at *2 (E.D.N.Y.
Sept. 3, 2009) report and recommendation adopted, 07–cv–
2493 (RJD)(LB), 2009 WL 3055347 (E.D.N.Y. Sept. 24,
2009) (concluding that plaintiff failed to state an FDCPA
claim where plaintiff did not specify the content or nature
of defendants' alleged “abusive” communications, explaining
that “Plaintiff cannot merely track the language of the
statute without alleging accompanying facts in his pleading”);
Shetiwy v. Midland Credit Mgmt., 15 F.Supp.3d 437,
446–47 (S.D.N.Y.2014), appeal dismissed (July 10, 2014)
(dismissing plaintiffs' FDCPA claims where the complaint
“include[d] recitations of the legal elements of an FDCPA
claim and blanket conclusions that ... Defendants violated
these sections” but failed to provide “sufficient factual
support to state a plausible claim”).
The following claims are wholly unsupported and are
dismissed for failure to state a claim: U.S. Bank (1)
“misrepresented the services rendered and compensation for
which they may lawfully receive pursuant to § 1692e(2)
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(B) (Compl., § III ¶ 8); (2) “is using deceptive means
and misrepresentation ... to obtain personal information
from credit bureaus concerning Cathy Oliver pursuant to §
1692e(10)” (id. § III ¶ 9); and (3) “unlawfully designed,
compiled and furnished to Cathy Oliver pursuant to § 1692j(a)
forms i.e. dunning letters, etc. knowing that such forms would
be used to create the false belief that a person other than
alleged creditor of Cathy Oliver participated in the collection
of debt allegedly owed.” (Id. § III ¶ 13.) In regard to each of
these claims, the Complaint merely recites the language of the
statute without providing any accompanying factual content
that would allow the Court to draw the reasonable inference
that defendants are liable for the conduct alleged. See Iqbal,
556 U.S. at 678 (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.”). Plaintiffs fail to allege when, where, or
how these purported FDCPA violations occurred. As such,
the Complaint fails to notify defendants or this Court of
the circumstances that give rise to plaintiffs' claims. While
plaintiffs cite to various exhibits in their two opposition briefs
in support of the third claim listed above (see Pl. Opp., ¶
9; Pl. Second Opp. to MTD, ¶ 19), no attempt is made to
draw a connection between the exhibits and plaintiffs' claim.
Plaintiffs fail to set forth facts to support these claims and
therefore fail to plausibly state a claim for relief.
*6 To the extent, plaintiffs assert claims under statutes
other than the FDCPA, those claims are also dismissed.
Plaintiffs request “equitable relief for violations of the
FDCPA/FCRA” (Compl., § IV(e)), but the Complaint fails to
allege any particular violation of the FCRA let alone mention
the FCRA anywhere else in the Complaint. In their two
oppositions to the motion to dismiss, plaintiffs remove any
reference to the FCRA. Further, in their “Prayer for Relief,”
plaintiffs request a “permanent injunction to stop/prevent
ongoing/future violations of the FTC Act and the FDCPA by
U.S. BANK” (id. at p. 6 ¶ 2), and seek damages “resulting
from U.S. BANK's present ongoing violations of the FTC Act
and the FDCPA.” (Id. at p. 6 ¶ 3.) Again, nowhere in the
Complaint do plaintiffs allege any specific violation of the
“FTC Act.” Notwithstanding plaintiffs' conclusory reference
to the FTC Act, it is well settled that there is no private
right of action under the statute. See Alfred Dunhill Ltd. v.
Interstate Cigar Co ., 499 F.2d 232, 237 (2d Cir.1974) (“[T]he
provisions of the Federal Trade Commission Act may be
enforced only by the Federal Trade Commission.”). As such,
plaintiffs' claims pursuant to the FCRA and FTC Act are
dismissed.
CONCLUSION
For the reasons outlined above, defendants' motion to dismiss
(Dkt. No. 13) is GRANTED. Counsel for defendant shall
provide plaintiffs with copies of all unreported decisions
cited herein. The Clerk is directed to enter judgment for the
defendants and close the case. The Court certifies pursuant
to 28 U.S.C. § 1915(a) (3) that any appeal from this order
would not be taken in good faith and in forma pauperis status
is denied. See Coppedge v. United States, 369 U.S. 438, 444–
45 (1962).
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 4111908
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Oliver v. U.S. Bancorp
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:14cv08948
OLIVER ET AL v. U.S. BANK CORP. ET AL
— S.D.N.Y. Nov. 10, 2014 Docket
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 19 of 44

Oliver v. U.S. Bancorp
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
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Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 20 of 44

Oliver v. U.S. Bancorp
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 21 of 44

Trisvan v. Burger King Corporation, Not Reported in Fed. Supp. (2020)
2020 WL 13851936
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 13851936
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court, E.D. New York.
John TRISVAN, Plaintiff,
v.
BURGER KING CORPORATION, Defendant.
19-CV-6396 (MKB)
|
Signed March 2, 2020
Attorneys and Law Firms
John Trisvan, Brooklyn, NY, Pro Se.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
*1 Plaintiff John Trisvan, proceeding pro se, commenced
the above-captioned action on November 6, 2019, against
Defendant Burger King Corporation. (Compl., Docket Entry
No. 1.) Plaintiff alleges that he suffered food poisoning after
eating at a Burger King restaurant in Brooklyn, New York,
and seeks relief pursuant to the Federal Trade Commission
Act of 1914, 15 U.S.C. §§ 45 and 52 (the “FTCA”), and
Article 2 of the Uniform Commercial Code. 1 (Id. at 2.) 2
Plaintiff seeks $2 million in damages. (Id. at 5.) The Court
grants Plaintiff's application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a). For the reasons set forth
below, the Court dismisses the Complaint pursuant to 28
U.S.C. § 1915(e)(2)(B), and grants Plaintiff leave to file an
amended complaint within thirty (30) days of the date of this
Memorandum and Order.
1 Plaintiff filed a similar action on September 10,
2016, against Checkers Drive-In Restaurant. See
Trisvan v. Checkers Drive-In Restaurant, Inc., No.
16-CV-7000, 2019 WL 332177 (E.D.N.Y. Jan. 25,
2019) (dismissing complaint for failure to state a
claim).
2 Because the Complaint is not consecutively
paginated, the Court refers to the page numbers
assigned by the Electronic Case Filing (“ECF”)
system.
I. Background
Plaintiff alleges that on November 6, 2016, he purchased food
from a Burger King restaurant located at 1297 Fulton Street
in Brooklyn and subsequently “began having abdominal
pains” after eating “the meal at his residence.” (Id. at 2.)
Plaintiff sought medical treatment at Woodhull Medical
Center, where he was diagnosed with “gastroenteritis; colitis
and cystitis.” (Id.) Plaintiff alleges that he later discovered
that the same Burger King had been “penalized” in 2014
and 2015 for failing to maintain food at proper temperatures,
had been fined twice for sanitary violations in 2016, and had
been fined for sanitary violations in 2017 and 2019. (Id. at
3–4.) Plaintiff alleges that Defendant engaged in “deception
and unfair acts” and “false advertising” and violated the
“implied warranty of merchantability,” pursuant to the FTCA.
(Id. at 4.) Plaintiff also alleges that “[t]he establishment
was unfit for business, but was nevertheless, held open
despite numerous infractions ... indicating a breach of contract
between merchant and consumer ... in violation of Uniform
Commercial Code [ ] Article 2.” (Id.)
II. Discussion
a. Standard of review
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 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.” Matson v. Bd. of Educ., 631 F.3d
57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678. In reviewing
a pro se complaint, a court must be mindful that a plaintiff's
pleadings should be held “to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); see Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (noting that after Twombly, the
court “remain[s] obligated to construe a pro se complaint
liberally”). Nevertheless, the Court is required to dismiss sua
sponte an in forma pauperis action if the Court determines
it “(i) is frivolous or malicious; (ii) fails to state a claim on
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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); see also Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007).
*2 In addition, if the Court “determines at any time that
it lacks subject-matter jurisdiction, the Court must dismiss
the action.” Fed. R. Civ. P. 12(h)(3); see also Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411,
416–17 (2d Cir. 2015) (A district court may dismiss an action
for lack of subject matter jurisdiction pursuant to Rule 12(b)
(1) when the court “lacks the statutory or constitutional power
to adjudicate it ....” (quoting Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000))).
b. Plaintiff fails to state a claim under the FTCA
Plaintiff alleges that Defendant engaged in “deceptive and
unfair acts” and that Defendant's “description given in its
advertisements” was “untrue, fraudulent, misleading and
false by quality” in violation of sections 45 and 52 of the
FTCA. 3 (Compl. 5.)
3 On the face of the Complaint, Plaintiff's allegations
that Defendant knowingly misrepresented the
contents of their food products in their advertising
and labeling practices in violation of the FTCA,
and the facts alleged regarding the contents of his
November 6, 2016 purchase of Defendant's food
products raise an issue of federal law sufficient to
create federal question jurisdiction. See Fairfield
Cty. Medical Ass'n v. United Healthcare of New
England, Inc., 557 F. App'x 53, 55 (2d Cir.
2014) (finding district court had subject matter
jurisdiction over action where “plaintiffs assert
two causes of action, one alleging violations of
the federal regulations implementing the Medicare
Act” and concluding “[p]laintiffs’ complaint thus
includes a claim that ‘arises under’ federal
law sufficient to invoke federal subject matter
jurisdiction”).
Under the FTCA, the Federal Trade Commission (the
“FTC”) “retains regulatory and enforcement authority over
the advertising (as opposed to the labeling) of foods, drugs,
and cosmetics.” Merrell Dow Pharma. Inc. v. Thompson, 478
U.S. 804, 830 n.8 (1986) (citing 15 U.S.C. §§ 52–55). The
FTCA does not provide a private right of action. See 15 U.S.C.
§ 45(a)(2) (“The Commission is hereby empowered and
directed to prevent persons, partnerships, or corporations ...
from using ... unfair or deceptive acts or practices in or
affecting commerce.”); Naylor v. Case & McGrath, Inc., 585
F.2d 557, 561 (2d Cir. 1978) (referring to the FTCA, 15
U.S.C. § 45(a)(1), and noting “it is clear that no private
right of action arises under that Act”); Alfred Dunhill Ltd. v.
Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir. 1974) (“[T]he
provisions of the [FTCA] may be enforced only by the [FTC].
Nowhere does the Act bestow upon either competitors or
consumers standing to enforce its provisions.”); Yesushalayim
v. Liecthung, No. 19-CV-4101, 2019 WL 3817125, at *3
(E.D.N.Y. Aug. 13, 2019) (dismissing plaintiff's federal cause
of action for violation of the FTCA for failure to state a
claim because “the [FTCA] does not provide a private right of
action”); Oliver v. U.S. Bancorp, No. 14-CV-8948, 2015 WL
4111908, at *6 (S.D.N.Y. July 8, 2015) (“Notwithstanding
plaintiffs’ conclusory reference to the [FTCA], it is well
settled that there is no private right of action under the
statute.” (citing Alfred Dunhill Ltd., 499 F.2d at 237)).
Because Plaintiff is a private party and the FTCA may
be enforced only by the FTC, Plaintiff fails to state a
claim for which relief can be granted under the FTCA.
See Yesushalayim, 2019 WL 3817125, at *3. Accordingly,
the Court dismisses Plaintiff's FTCA claim for personal
injuries suffered as a result of his reliance on Defendant's
advertisements for its food products.
c. The Court declines to exercise supplemental
jurisdiction over Plaintiff's state law claim
*3 Because the Court dismisses Plaintiff's federal claim
under the FTCA, the Court declines to exercise jurisdiction 4
over Plaintiff's remaining claim alleging breach of contract
pursuant to Article 2 of the Uniform Commercial Code. 5
See 28 U.S.C. § 1367(c)(3) (“District courts may decline to
exercise supplemental jurisdiction over a claim if the district
court has dismissed all claims over which it has original
jurisdiction.”). “[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors
to be considered under the pendent jurisdiction doctrine
— judicial economy, convenience, fairness, and comity —
will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Pension Ben. Guar. Corp. ex
rel. St. Vincent Catholic Medical Ctrs. Ret. Plan v. Morgan
Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013)
(citations and internal quotation marks omitted); see also
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Trisvan v. Burger King Corporation, Not Reported in Fed. Supp. (2020)
2020 WL 13851936
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
One Commc'ns Corp. v. JP Morgan SBIC LLC, 381 F. App'x
75, 82 (2d Cir. 2010) (“If all of a plaintiff's federal claims
are dismissed, a district court is well within its discretion
to decline to assert supplemental jurisdiction over any state
law claims.”). The Court declines to exercise supplemental
jurisdiction over Plaintiff's state law claim alleging breach
of contract. Plaintiff's state law claim is therefore dismissed
without prejudice.
4 Plaintiff invokes the Court's diversity jurisdiction
pursuant to 28 U.S.C. § 1331. (Compl. 2.) In
support, Plaintiff alleges that he is a citizen of New
York, Defendant has a principal place of business in
Florida, and he seeks an “award ... [of] punitive and
compensatory relief, in the amount of two million
dollars,” (id. at 5), for his alleged injuries related to
food poisoning. These allegations are insufficient
to show that the amount in controversy exceeds
$75,000.
“A party invoking the jurisdiction of the federal
court has the burden of proving that it appears to a
‘reasonable probability’ that the claim is in excess
of the statutory jurisdictional amount.” Scherer
v. Equitable Life Assurance Soc'y of U.S., 347
F.3d 394, 397 (2d Cir. 2003) (quoting Tongkook
Am., Inc. v. Shipton Sportswear Co., 14 F.3d
781, 784 (2d Cir. 1994)); Chase Manhattan Bank,
N.A. v. Am. Nat'l Bank & Tr. Co. of Chicago,
93 F.3d 1064, 1070 (2d Cir. 1996) (same); see
also Kruglov v. Copart of Conn., Inc., 771 F.
App'x 117, 119 (2d Cir. 2019). The amount
in controversy must be non-speculative in order
to satisfy the statute and conclusory allegations
that the amount-in-controversy requirement is
satisfied are insufficient. See Valente v. Garrison
From Harrison LLC, No. 15-CV-6522, 2016
WL 126375, at *2 (E.D.N.Y. Jan. 11, 2016)
(“[B]oilerplate pleadings do not suffice to
establish that [an] action involves an amount in
controversy adequate to support federal diversity
jurisdiction.”).
In addition, where the jurisdictional amount
includes punitive damages, those punitive damages
will be considered with heightened scrutiny.
Nwanza v. Time, Inc., 125 F. App'x 346, 349–
50 (2d Cir. 2005) (finding plaintiff's “demand for
five million dollars’ punitive damages based on his
claims that [the defendant] fraudulently induced
him into subscribing to magazines with promises
of multi-million dollar prizes—with unspecified or
no actual damages” insufficient to meet amount-
in-controversy requirement); Zahn v. Int'l Paper
Co., 469 F.2d 1033, 1034 n.1 (2d Cir. 1972)
(“[I]n computing jurisdictional amount, a claim for
punitive damages is to be given closer scrutiny,
and the trial judge accorded greater discretion, than
a claim for actual damages.”); see also Cohen
v. Narragansett Bay Ins. Co., No. 14-CV-3623,
2014 WL 4701167, at *3 n.4 (E.D.N.Y. Sept. 23,
2014) (“[T]he Court is not obligated to accept, on
face value, a claimed amount of punitive damages,
particularly where there would be no diversity
without such damages.”); Watty v. Cuomo, No.
12-CV-2660, 2013 WL 4495184, at *2 (E.D.N.Y.
Aug. 14, 2013) (“Plaintiff's demand for punitive
and other additional damages, unsupported by
the law or the allegations in the amended
complaint, is not sufficient to satisfy the amount-
in-controversy requirement.”). As currently pled,
Plaintiff's request for $2 million in punitive
and compensatory damages for the alleged food
poisoning is speculative and insufficient to meet the
amount-in-controversy requirement for the Court
to exercise diversity jurisdiction over this matter.
5 To the extent Plaintiff seeks to assert a claim for
negligence for his injuries, the Court declines to
assert supplement jurisdiction over those claims as
well. See Logan v. Matveevskii, 175 F. Supp. 3d
209, 236 (S.D.N.Y. 2016) (declining jurisdiction
over state law claims including, among others,
a claim for negligence); see, e.g., Porrazzo
v. Bumble Bee Foods, LLC, 822 F. Supp. 2d
406, 414 (S.D.N.Y. 2011) (discussing elements
of state law claim of negligence); Bunkley-
Claybrooks v. Shelly's of N.Y., No. 07-CV-7727,
2009 WL 2486046, at *4 (S.D.N.Y. Aug. 14,
2009) (discussing elements of state law claim of
negligence based on food poisoning).
d. Leave to amend
*4 In light of Plaintiff's pro se status, the Court grants
Plaintiff leave to file an amended complaint within thirty (30)
days of this Memorandum and Order. Plaintiff is advised that
the amended complaint will completely replace the original
complaint, must be captioned “Amended Complaint,” and
shall bear the same docket number as this Memorandum
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Trisvan v. Burger King Corporation, Not Reported in Fed. Supp. (2020)
2020 WL 13851936
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and Order. If Plaintiff intends to invoke the Court's diversity
jurisdiction over his state law claim, Plaintiff must clearly
state the basis for doing so. If Plaintiff fails to file an amended
complaint within the time allowed, the Court will direct the
Clerk of Court to enter judgment dismissing the case for the
reasons stated above.
III. Conclusion
Accordingly, the Court dismisses the Complaint for failure
to state a claim. See 28 U.S.C. § 1915(e)(2)(b); Fed. R.
Civ. P. 12(h)(3). The Court grants Plaintiff leave to file an
amended complaint within thirty (30) days from the entry of
this Memorandum and Order. The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith, and therefore in forma pauperis
status is denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444–45 (1962).
All Citations
Not Reported in Fed. Supp., 2020 WL 13851936
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 25 of 44

Trisvan v. Burger King Corporation
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:19-CV-06396
Trisvan v. Burger King Worldwide, Inc.
— E.D.N.Y. Nov. 06, 2019 Docket
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Trisvan v. Burger King Corporation
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History (3)
Direct History (1)
1. Trisvan v. Burger King Corporation
2020 WL 13851936 , E.D.N.Y. , Mar. 02, 2020
Related References (2)
2. Trisvan v. Burger King Corporation
2020 WL 1975236 , E.D.N.Y. , Apr. 24, 2020
3. Trisvan v. Burger King Corporation
2021 WL 1193531 , E.D.N.Y. , Mar. 30, 2021
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Cole v. Smrtic, Slip Copy (2024)
2024 WL 4870495
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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
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 33 of 44

Cole v. Smrtic, Slip Copy (2024)
2024 WL 4870495
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 7
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
Slip Copy, 2024 WL 4870495
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 34 of 44

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
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 35 of 44

Cole v. Smrtic
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 36 of 44

Cole v. Smrtic
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 37 of 44

Lesson v. Doe, Slip Copy (2025)
2025 WL 1291533
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1291533
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Scott LESSON, Plaintiff,
v.
Jane DOE / State Trooper, Defendant.
1:25-cv-00188 (AMN/TWD)
|
Signed May 5, 2025
Attorneys and Law Firms
SCOTT LESSON, Saratoga County Jail, 6010 County Farm
Road, Ballston Spa, New York 12020, Plaintiff, pro se.
ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On February 10, 2025, pro se plaintiff Scott Lesson
(“Plaintiff”) commenced this action pursuant to 42 U.S.C. §
1983 (“Section 1983”) against an unknown New York State
Trooper. Dkt. No. 1 (“Complaint”). Plaintiff sought and was
granted leave to proceed in forma pauperis. Dkt. Nos. 4, 6.
This matter was referred to United States Magistrate Judge
Thérèse Wiley Dancks, who reviewed the Complaint pursuant
to 28 U.S.C. § 1915(e) and, on March 26, 2025, recommended
that the Complaint be dismissed with leave to amend. Dkt. No.
6 (“Report-Recommendation”). Magistrate Judge Dancks
advised that pursuant to 28 U.S.C. § 636(b)(1), the parties
had fourteen days within which to file written objections and
that failure to object to the Report-Recommendation within
fourteen days would preclude appellate review. Id. at 7-8. 1
No party has filed objections to the Report-Recommendation
and the time for filing objections has expired.
1 Citations to docket entries utilize the pagination
generated by CM/ECF, the Court's electronic filing
system, and not the documents’ internal pagination.
For the reasons set forth below, the Court adopts the Report-
Recommendation in its entirety.
II. STANDARD OF REVIEW
This Court reviews de novo those portions of a magistrate
judge's report-recommendation that have been properly
preserved with a specific objection. 28 U.S.C. § 636(b)(1)
(C). “To be ‘specific,’ the objection must, with particularity,
‘identify [1] the portions of the proposed findings,
recommendations, or report to which it has an objection
and [2] the basis for the objection.’ ” Petersen v. Astrue,
2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in
original) (quoting N.D.N.Y. Local Rule 72.1(c)). If no specific
objections have been filed, this Court reviews a magistrate
judge's report-recommendation for clear error. See Petersen,
2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b) advisory
committee's notes to 1983 addition). Similarly, when a party
files “[g]eneral or conclusory objections, or objections which
merely recite the same arguments [previously] presented to
the magistrate judge,” the district court reviews a magistrate
judge's report-recommendations for clear error. O'Diah v.
Mawhir, No. 08-cv-322, 2011 WL 933846, at *1 (N.D.N.Y.
Mar. 16, 2011) (citations omitted); accord Mario v. P &
C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(a “statement, devoid of any reference to specific findings
or recommendations to which [the plaintiff] objected and
why, and unsupported by legal authority, was not sufficient
to preserve” a claim); Petersen, 2 F. Supp. 3d at 228-29
& n.6 (collecting cases). “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.’ ” Dezarea W. v. Comm'r of Soc. Sec.,
No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar.
17, 2023) (quoting Canady v. Comm'r of Soc. Sec., No. 17-
cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,
2017)).
*2 “[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines
v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are
obligated to “make reasonable allowances to protect pro se
litigants” from inadvertently forfeiting legal rights merely
because they lack a legal education. Id. (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a
pro se party's objections to a Report and Recommendation
must be specific and clearly aimed at particular findings in
the magistrate's proposal ....” Machicote v. Ercole, No. 06-
cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011)
(citation omitted); accord Caldwell v. Petros, No. 22-cv-567,
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 38 of 44

Lesson v. Doe, Slip Copy (2025)
2025 WL 1291533
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After
appropriate review, “the court may accept, reject or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION
Because no party has filed any objections to the
Report-Recommendation, the Court reviews the Report-
Recommendation for clear error.
Magistrate Judge Dancks determined that Plaintiff's
allegations failed to set forth a claim for excessive force,
as Plaintiff did not identify what force the unidentified
state trooper purportedly used against him, nor how it was
excessive. Dkt. No. 6 at 5-6. Magistrate Judge Dancks also
found that Plaintiff's allegations failed to comply with the
pleading requirements set forth in the Federal Rules of Civil
Procedure. Id. at 4-5. As a result, Magistrate Judge Dancks
recommended that the Complaint be dismissed with leave to
amend. Id. at 6-7. The Court agrees with Magistrate Judge
Dancks’ findings and recommendations for the reasons set
forth in the Report-Recommendation. Having reviewed the
Report-Recommendation for clear error, and found none, the
Court adopts the Report-Recommendation in its entirety.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 6, is
ADOPTED in its entirety; and the Court further
ORDERS that the Complaint, Dkt. No. 1, is DISMISSED
with leave to amend; 2 and the Court further
2 As set forth in the Report-Recommendation, any
amended pleading must comply with Rules 8 and
10 of the Federal Rules of Civil Procedure. Dkt. No.
5 at 6–7.
ORDERS that any amended complaint must be filed within
thirty (30) days of the filing date of this Order; and the Court
further
ORDERS that, if Plaintiffs file a timely amended complaint,
it shall be referred to Magistrate Judge Dancks for review;
and if Plaintiff fails to file a timely amended complaint, the
Clerk is directed to close this case without further order of this
Court; and the Court further
ORDERS that the Clerk serve a copy of this Order on all
parties in accordance with the Local Rules. 3
3 The Clerk shall also provide Plaintiff, at both
his address of record and the future address he
provided, Dkt. No. 2, with copies of all unreported
decisions herein.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1291533
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 39 of 44

Lesson v. Doe
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Lesson v. Doe
2025 WL 915777 , N.D.N.Y. , Mar. 26, 2025
Report and Recommendation Adopted by
2. Lesson v. Doe
2025 WL 1291533 , N.D.N.Y. , May 05, 2025
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 40 of 44

Lesson v. Doe
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings
There are no Filings for this citation.
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 41 of 44

Harmon v. Runyon, Not Reported in F.Supp. (1997)
1997 WL 118379
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 118379
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jeanette HARMON, Plaintiff,
v.
Marvin T. RUNYON, Postmaster General,
United States Postal Service, Defendant.
No. 96 CIV. 6080(SAS).
|
Mar. 17, 1997.
Attorneys and Law Firms
Jeanette Harmon, pro se.
Aaron Katz, Asst. U.S. Atty., New York, N.Y., for Defendant.
MEMORANDUM ORDER
SCHEINDLIN, District Judge.
*1 On August 12, 1996, plaintiff filed this action pursuant
to 42 U.S.C. §§ 2000e to 2000e–17 and § 29 U.S.C. §§
621 to 634 for employment discrimination on the basis of
her age, race and gender. On November 21, 1996, plaintiff
applied for the appointment of counsel on the grounds that she
lacks sufficient knowledge of the law to continue to maintain
her claims pro se. For the reasons set forth below, plaintiff's
application for appointment of counsel is denied with leave
to renew.
Discussion As an initial matter, there is no constitutional
right to appointed counsel in civil cases. Moreover,
due to the scarcity of volunteer attorneys, the Second
Circuit has cautioned against the routine appointment
of pro bono counsel in civil cases. See Cooper v. A.
Sargenti Co. Inc., 877 F.2d 170, 172 (2d Cir.1989).
In Hodge v. Police Officers, 802 F.2d 58, 61–62 (2d
Cir.1986), cert. denied, 502 U.S. 986, 112 S.Ct. 596,
116 L.Ed.2d 620 (1991), the Second Circuit set forth
the factors courts should consider in deciding whether
to grant a pro se plaintiff's request for the appointment
of counsel. As a threshold requirement, the court must
decide whether the plaintiff's claim “seems likely to be of
substance.” Hodge, 802 F.2d at 61. If the plaintiff meets this
requirement, the court must next consider factors including:
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.
Id. at 61–62. As plaintiff is not indigent, the court is also
required to consider plaintiff's efforts to obtain a lawyer.
Cooper, 877 F.2d at 172, 174.
In the instant case, plaintiff has not met the threshold
requirement set forth in Hodge. Plaintiff has presented
no evidence whatever to support her claims regarding
defendant's allegedly improper actions. Without presenting
any evidence to support her claims, Harmon cannot meet
the first requirement of the Hodge test described above.
Accordingly, plaintiff's application is denied.
Given the early stage of these proceedings, it is possible that
plaintiff eventually will be able to provide some evidence to
support her claims. Plaintiff's application is therefore denied
with leave to renew. If plaintiff wishes to apply again for the
appointment of counsel, she must make some attempt to refer
to evidence which supports her claims.
SO ORDERED.
All Citations
Not Reported in F.Supp., 1997 WL 118379
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 42 of 44

Harmon v. Runyon
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:96cv06080
HARMON v. RUNYON
— S.D.N.Y. Aug. 12, 1996 Docket
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 43 of 44

Harmon v. Runyon
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (4)
Direct History (1)
1. Harmon v. Runyon
1997 WL 118379 , S.D.N.Y. , Mar. 17, 1997
Related References (3)
2. JEANETTE HARMON, APPELLANT. v. MARVIN T. RUNYON, POSTMASTER GENERAL, UNITED STATES
POSTAL SERVICE, AGENCY.
1996 WL 350949 , E.E.O.C. , June 21, 1996
3. Harmon v. Runyon
1996 WL 696043 , S.D.N.Y. , Dec. 04, 1996
4. Harmon v. Runyon
1997 WL 786383 , S.D.N.Y. , Dec. 19, 1997
Case 1:25-cv-01826-MAD-MJK Document 8 Filed 02/03/26 Page 44 of 44