Kirby v. Spicer et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
DAVID KIRBY III,
Plaintiff,
v. 	5:25-cv-324 (AMN/PJE)
GRAHAM SPICER; PATRICK HENNESSY,
Defendants.
________________________________________________
APPEARANCES: 	OF COUNSEL:
DAVID KIRBY, III
25-B-1877
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
Plaintiff, pro se
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On March 12, 2025, David Kirby, III (“Plaintiff”) commenced this action pro se against
Graham Spicer and Patrick Hennessy (“Defendants”) pursuant to 42 U.S.C. § 1983, alleging
violations of his Fifth and Sixth Amendment rights. See Dkt. No. 1 (“Complaint”).1
This Court ordered an administrative closure on March 14, 2025, because Plaintiff had not
paid the filing fee or applied to proceed in forma pauperis (“IFP”). See Dkt. No. 3. Plaintiff filed
a motion to proceed IFP on March 28, 2025, see Dkt. No. 5, and the Court ordered the case
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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reopened on the same day, see Dkt. No. 7. On August 28, 2025, Plaintiff moved for the Court to
appoint him counsel. See Dkt. No. 9.
This matter was referred to United States Magistrate Judge Paul J. Evangelista, who
granted Plaintiff’s request to proceed IFP and reviewed the Complaint pursuant to 28 U.S.C.
§ 1915. Dkt. No. 10 at 2 (“Report-Recommendation”). On November 5, 2025, Magistrate Judge
Evangelista recommended that this Court dismiss Plaintiff’s claim with prejudice and without
leave to amend for failure to state a claim on which relief could be granted. Id. Pursuant to 28
U.S.C. § 636(b)(1), Magistrate Judge Evangelista advised that the parties had fourteen days within
which to file written objections and that failure object to the Report-Recommendation within those
fourteen days would preclude appellate review. Id. No party has filed objections, and the time for
filing objections has expired.
For the following reasons, 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. Petersen v. Astrue, 2 F. Supp. 3d 223,
228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(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 Notes: 1983 Addition). Similarly, if
an objection simply rehashes arguments originally presented to the magistrate judge, this Court
reviews the relevant portions of the report-recommendation for clear error. See id. 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-1138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17,
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2023) (quoting Canady v. Comm’r of Soc. Sec., No. 17-cv-367, 2017 WL 5484663, at *1 n.1
(N.D.N.Y. Nov. 14, 2017)).
“[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. 2003) (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, 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 objection to the Report-Recommendation, the Court reviews
the Report-Recommendation for clear error.
First, Magistrate Judge Evangelista recommended that the Court dismiss Plaintiff’s
Complaint for failing to satisfy Rule 8 of the Federal Rules of Civil Procedure. See Dkt. No. 10 at
6-8. Rule 8 requires that a complaint include “a short and plain statement of the claim showing
that the pleader is entitled to relief.” 	Fed. R. Civ. P. 8(a). 	Here, Magistrate Judge Evangelista
found that Plaintiff’s claims that Defendants violated his Fifth and Sixth Amendment rights are
conclusory and do not include sufficiently detailed allegations or context. 	Dkt. No. 10 at 6-8.
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Regarding the Fifth Amendment, among other things, Plaintiff does not indicate how the Fifth
Amendment might apply to Defendants, who are private actors. Id. at 6-7 (citing Martin-Trigona
v. D’Amato & Lynch, 559 F. Supp. 533, 535 (S.D.N.Y. 1983) (“Plaintiff’s claim ignores the
fundamental principle that the Fifth Amendment only concerns Federal government or other
official action.”)). 	Likewise, as to the Sixth Amendment, while Plaintiff appears to bring an
ineffective assistance of counsel claim against Defendants, he fails to identify, among other things,
any matters in which Defendants represented him, the nature of those matters, or how Defendants’
representation was ineffective. Dkt. No. 10 at 7-8. Therefore, Magistrate Judge Evangelista found
that Plaintiff’s complaint “does not provide ‘fair notice of the claim[s] being asserted’ against
Spicer and Hennesy or an adequate opportunity for Spicer and Hennessy to file an answer and
‘prepare an adequate defense.’” Id. at 8 (quoting Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y.
1999)).
Even if Plaintiff could cure the Complaint’s noncompliance with Rule 8, Magistrate Judge
Evangelista found that Plaintiff could not show that Defendants were state actors subject to liability
under § 1983. See Dkt. No. 10 at 8-11. Both Defendants are attorneys who, at most, represented
Plaintiff in unspecified court proceedings. Dkt. No. 10 at 11; see also Dkt. No. 1 at 2. Therefore,
because the Complaint “fails to allege any facts suggesting that Spicer and Hennessy were acting
under the color of state law and because Spicer and Hennessy were ‘performing [their] traditional
functions as counsel to defendant during the alleged violation, [they] cannot be held liable pursuant
to § 1983.’” 	Dkt. No. 10 at 11 (quoting Browdy v. Karp, 131 F. App’x 751, 753 (2d Cir. 2005)
(summary order)) (internal citations omitted).2
2 In the alternative, Magistrate Judge Evangelista recommended dismissing the Complaint without
prejudice because it is likely precluded by Heck v. Humphrey, 512 U.S. 477 (1944). Dkt. No. 10
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Finally, Magistrate Judge Evangelista recommended that the Court dismiss Plaintiff’s
motion for appointment of counsel as moot. See Dkt. No. 10 at 15-16.
After 	reviewing 	the 	Report-Recommendation 	and 	considering 	Magistrate 	Judge
Evangelista’s findings, the Court finds no clear error in the Report-Recommendation. Accordingly,
the Court adopts the Report-Recommendation in its entirety.
IV. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 10, is ADOPTED in its entirety;
and the Court further
ORDERS that Plaintiff’s Complaint, Dkt. No. 1, be DISMISSED with prejudice and
without leave to amend; and the Court further
ORDERS that Plaintiff’s motion for appointment of counsel, Dkt. No. 9, be DISMISSED
as moot; and the Court further
ORDERS that the Clerk serve a copy of this Order on all parties in accordance with the
Local Rules.
IT IS SO ORDERED.
Dated: December 11, 2025
Albany, New York
at 12-13. 	Because the Court finds no clear error in Magistrate Judge Evangelista’s primary
recommendation based on Rule 8, it dismisses the Complaint with prejudice.
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