Rinaldi v. John Doe #1-10

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JOHN M. RINALDI,
Plaintiff,
v. 	5:26-cv-0534
(AJB/CBF)
JOHN DOE #1-10,
Defendants.
_______________________________________________
APPEARANCES:
JOHN M. RINALDI
Plaintiff, pro se
6698 Glen Haven Road
Homer, NY 13077
CARLA B. FREEDMAN, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
The Clerk has sent to the Court for review pleadings submitted by pro se plaintiff John
M. Rinaldi (“Plaintiff”). Dkt. Nos. 1, 7, 16. Plaintiff also seeks leave to proceed in forma
pauperis (“IFP”). Dkt. Nos. 3, 12.
II. 	IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. Dkt.
No. 12. Upon review, Plaintiff’s IFP Application demonstrates economic need. See id.
Therefore, he is granted permission to proceed IFP.1
1 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he
may incur in this action, including copying and/or witness fees.
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III. 	BACKGROUND
Plaintiff commenced this action on April 3, 2026, by filing a Complaint, Dkt. No. 1,
along with an Emergency Ex Parte Motion for a Temporary Restraining Order, Dkt. No. 2; see
also Dkt. No. 6, and a Motion for Leave to Proceed IFP, Dkt. No. 3. On April 6, 2026, the Hon.
Anthony J. Brindisi, United States District Judge, issued an Order directing administrative
closure of the action, finding “the IFP Application submitted by plaintiff was incomplete.” Dkt.
No. 5 at 1.2 Plaintiff subsequently filed a “First Amended Complaint” (hereinafter, “amended
complaint”), Dkt. No. 7, as well as an Emergency Motion for Expedited Review and Immediate
Injunctive Relief, Dkt. No. 8; see also Dkt. Nos. 9, 10.
On April 7, 2026, Plaintiff filed a completed IFP Application, Dkt. No. 12, and Judge
Brindisi directed the Clerk to reopen the action and restore it to the Court’s active docket, Dkt.
No. 11. Thereafter, Plaintiff filed a “Master Consolidated Emergency Motion for Immediate
Injunctive Relief, Writ of Habeas Corpus, Writ of Mandamus, and Critical Payment.” Dkt. No.
13. Judge Brindisi issued a Text Order on April 9, 2026, denying Plaintiff’s motions for a
Preliminary Injunction and Temporary Restraining Order, finding “plaintiff has not met the
extremely demanding standard required to warrant emergency relief.” Dkt. No. 14. Therefore,
Judge Brindisi referred Plaintiff’s amended complaint, Dkt. No. 7, and IFP application, Dkt. No.
12, to the undersigned. Dkt. No. 14.
In his amended complaint, Plaintiff lists only “JOHN DOE #1-10” as Defendants. Dkt.
No. 7 at 2. Plaintiff states his claims “arise under 42 U.S.C. § 1983,” and venue is proper in this
2 Citations to Plaintiff’s submissions will refer to the pagination generated by CM/ECF, the
Court’s electronic filing system. Unless otherwise indicated, excerpts from the record are
reproduced exactly as they appear in the original and errors in spelling, punctuation, and
grammar have not been corrected.
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district “because a substantial part of the events giving rise to the claims occurred in Cortland
County, New York.” Id. Plaintiff identifies himself as “an established public figure” who
“operates an all-female production company . . . staffed by A-list Hollywood talent . . . currently
in pre-production/production on a major documentary film . . . positioned for Academy Award
consideration with a target release in 2026-2027,” as well as a “published author of . . . a book
series that addresses the significant public issues of childhood trauma and PTSD though the
lenses of (1) gun violence; (2) the border crisis . . . ; and (3) war trauma.” Id. at 3. He states his
work “has an international humanitarian scope.” Id. Additionally, Plaintiff “is a candidate for
the Democratic Party nomination for Governor of New York in the June 23, 2026 primary
election.” Id. at 2.
Plaintiff avers on January 2, 2026, he “engaged in protected speech under the First
Amendment by acting as a whistleblower and publicly exposing a criminal enterprise operating
with the complicity of public officials in Cortland County.” Id.
Just eight days later, on or about January 10, 2026, in a clear and
direct act of retaliation for his protected speech, state actors,
believed to be the John Doe Defendants, seized Plaintiff’s personal
vehicle, a 2016 Jaguar. 	This seizure was designed to immobilize
Plaintiff and cripple his ability to campaign for Governor.
Id. at 2-3. He further asserts “[t]he Defendants’ retaliatory seizure of Plaintiff’s vehicle on
January 10, 2026, was a calculated act to disrupt [Plaintiff’s] international work, his book launch,
and his entire public platform.” Id. at 3.
With regard to relief, Plaintiff requests emergency injunctive relief, including orders
compelling “the return of Plaintiff’s vehicle” and “the release of Plaintiff’s son, AMM, and his
Chief Operating Officer from state custody,” as well as “[a] declaration that the petition
signature requirement is unconstitutional as applied to Plaintiff and must be waived; OR, in the
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alternative, an Order extending the filing deadline . . . .” Id. at 6. Further, Plaintiff seeks “[a]
declaration that Defendants’ actions violated Plaintiff’s rights under the First, Fourth, and
Fourteenth Amendments,” “[c]ompensatory and punitive damages,” “costs and reasonable
attorneys’ fees,” as well as Orders “permitting expedited discovery to identify the John Doe
Defendants” and “compelling Defendnats to preserve all documents, communications, and
evidence related to the retaliation against Plaintiff.” Id.
Plaintiff subsequently filed what appears to be another copy of the amended complaint
with exhibits. See generally, Dkt. No. 16. Mail concerning Text Orders Dkt. No. 5 and Dkt. No.
14 were returned to the Court as undeliverable. See Dkt. Nos. 17-19.3
IV. 	LEGAL STANDARD
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis
complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. See §
1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
3 Plaintiff must promptly notify the Court of any change of address. N.D.N.Y. L.R. 10.1(c)(2).
Plaintiff is cautioned that his failure to do so, or to comply with this or other court orders in this
action, may result in sanctions being imposed, including the dismissal of this case. N.D.N.Y.
L.R. 41.2(b).
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470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in
original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007); see also Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when
either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an
indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil
Procedure. See, e.g., Cole v. Smrtic, No. 1:24-CV-00847 (MAD/CFH), 2024 WL 4870495, at *2
(N.D.N.Y. Nov. 21, 2024) (explaining, “special solicitude for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure . . . .”)
(internal quotations and citation omitted), report and recommendation adopted, 2025 WL
247901 (N.D.N.Y. Jan. 21, 2025). To survive dismissal for failure to state a claim, a complaint
must contain a short and plain statement of the claim showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In determining whether a complaint states a claim upon which relief may be granted, “the
court must accept the material facts alleged in the complaint as true and construe all reasonable
inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)
(citations omitted). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)
(citation and internal quotation marks omitted). However, an opportunity to amend is not
required where “the problem with [the plaintiff’s] causes of action is substantive” such that
“better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
V. 	ANALYSIS
“[T]o state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that
the challenged conduct (1) was attributable to a person acting under color of state law, and (2)
deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the
United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v.
Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)); see also Alfaro Motors, Inc. v. Ward, 814 F.2d 883,
887 (2d Cir. 1987) (explaining, “it is well settled that to state a civil rights claim under § 1983, a
complaint must contain specific allegations of fact which indicate a deprivation of constitutional
rights; allegations which are nothing more than broad, simple, and conclusory statements are
insufficient to state a claim under § 1983.”) (citations omitted). “Section 1983 itself creates no
substantive rights; it provides only a procedure for redress for the deprivation of rights
established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)) (additional citation omitted).
“The requirement that the defendant acted under ‘color of state law’ is jurisdictional.”
Bennett v. Bailey, No. 5:20-CV-903 (GTS/ATB), 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17,
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2020) (citations omitted), report and recommendation adopted, 2020 WL 5775231 (N.D.N.Y.
Sept. 28, 2020); see also, e.g., Basile v. Connolly, 538 F. App’x 5, 7 (2d Cir. 2013) (explaining,
“private individuals . . . cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation that
they acted under color of state law.”). “A person acts under color of state law when he or she
acts in his or her official capacity, ‘clothed with the authority of state law,’ or acts under
‘pretense’ of law by purporting to act with official power.” Bennett, 2020 WL 5775940, at *2
(citations omitted).
Here, while Plaintiff alleges violations of his First, Fourth, and Fourteenth Amendment
rights under the U.S. Constitution, see Dkt. No. 7 at 4-5, the amended complaint fails to
plausibly plead Plaintiff was deprived of such rights by a person acting under color of state law.
See generally, Dkt. Nos. 1, 7. Plaintiff’s amended complaint merely claims, in wholly
conclusory fashion, that the John Doe Defendants, “whose names and capacities are . . .
unknown to Plaintiff” allegedly “acted under color of state law . . . .” Dkt. No. 7 at 2; see also
Dkt. No. 7 at 2-3 (alleging “state actors, believed to be the John Doe Defendants, seized
Plaintiff’s personal vehicle . . . .) (emphasis omitted). Indeed, the pleading does not even specify
which state or municipality the unknown alleged “state actors” actions are attributable to. See
generally, id.
Under these circumstances, Plaintiff’s pleading fails to state a viable § 1983 claim. See,
e.g., Kurtz v. Smith, No. 3:25-CV-0692 (LEK/TWD), 2025 WL 4070710, at *4 (N.D.N.Y. Oct.
3, 2025) (finding the plaintiff’s “conclusory allegations that his Eighth and Fourteenth
Amendment rights were violated are insufficient to state a claim under Section 1983” where the
plaintiff named as defendants “private individuals and an entity that Plaintiff has not alleged to
have any connection with any government body or to have acted under color of state law.”)
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(citations omitted), report and recommendation adopted, 2026 WL 174048 (N.D.N.Y. Jan. 22,
2026). Accordingly, the undersigned recommends Plaintiff’s claims against John Does #1-10 be
dismissed.
Moreover, while a litigant in federal court has the right to act as her own counsel, “[a]
person who has not been admitted to the practice of law may not represent anybody other than
[her]self.” Gammons v. Cody, No. 1:25-CV-941 (AJB/DJS), 2025 WL 2722411, at *3
(N.D.N.Y. Sept. 2, 2025) (alterations in original) (quoting Guest v. Hansen, 603 F.3d 15, 20 (2d
Cir. 2010) (citation omitted)), report and recommendation adopted, 2025 WL 2719776
(N.D.N.Y. Sept. 24, 2025); accord Johnson v. City of New York, No. 22-2096, 2023 WL
3607219, at *2 (2d Cir. May 24, 2023). Therefore, insofar as Plaintiff purports to request relief
on behalf of his “adult son” and/or “Chief Operating Officer,” see Dkt. No. 7 at 4, any such
claims must be dismissed. See, e.g., Gammons, 2025 WL 2722411, at *3.
The Court advises Plaintiff that should he be permitted to amend his complaint, any
amended pleading he submits to this Court must comply with Rules 8 and 10 of the Federal
Rules of Civil Procedure. Any such amended pleading should specifically identify the legal
theory or theories that form the basis for his claim. Plaintiff is cautioned that no portion of his
prior complaints shall be incorporated into any amended pleading by reference. Any amended
complaint submitted by Plaintiff must set forth all of the claims he intends to assert against the
Defendant and must demonstrate that a case or controversy exists between the Plaintiff and the
Defendant which Plaintiff has a legal right to pursue and over which this Court has jurisdiction.
Of course, Plaintiff may also pursue his claims in state court if appropriate.
VI. 	CONCLUSION
WHEREFORE, it is hereby
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ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 12) is
GRANTED, and it is
RECOMMENDED that Plaintiff’s amended complaint (Dkt. No. 7) be DISMISSED
without prejudice; and it is further
ORDERED that the Clerk provide to Plaintiff 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).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to
file written objections to the foregoing report.4 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., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: May 21, 2026
Syracuse, New York
4 If you are proceeding pro se and are served with this Report-Recommendation and Order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen 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. Fed. R. Civ. P. 6(a)(1)(C).
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Cole v. Smrtic, Not Reported in Fed. Supp. (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.
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§ 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).
“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
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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. 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
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*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 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
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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 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
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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 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
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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 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
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PREJUDICE as follows: (1) claims brought against them in their personal/individual capacities for judicial immunity, and (2)
claims brought against them in their official capacities for Eleventh Amendment immunity; and it is further
RECOMMENDED, that plaintiff's section 1983 claims against Assistant District Attorney Samuel V. Maxwell (Dkt. Nos. 1,
7) be DISMISSED WITH PREJUDICE due to absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading of the complaint may suggest that plaintiff seeks to name the Appellate
Division, Third Department, as a defendant (Dkt. Nos. 1, 7), such claims be DISMISSED WITH PREJUDICE as barred by
Eleventh Amendment immunity, and it is
RECOMMENDED, that plaintiff's pro se motion for permission to file electronically (dkt. no. 4) and motion to appoint
counsel 10 (dkt. no. 5) be DISMISSED AS MOOT based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did not contend that he made any efforts to obtain counsel on his own, show
proof of any attorneys he contacted. See Terminate Control Corp v. Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
ORDERED, that the Clerk serve this Report-Recommendation & Order on plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), parties have
FOURTEEN (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. 11
11 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional
days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from the date the Report-
Recommendation and Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that
prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).
All Citations
Not Reported in Fed. Supp., 2024 WL 4870495
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Cole v. Smrtic, Not Reported in Fed. Supp. (2025)
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2025 WL 247901
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, Interim Montgomery County Judge; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; Honorable Felix Catena, Retired Administrative
Law Judge; and Samuel V. Maxwell, Esq., Assistant District Attorney, Defendants.
1:24-CV-847 (MAD/PJE)
|
Signed January 21, 2025
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New York 12010, Plaintiff pro se.
ORDER
Mae A. D'Agostino, United States District Judge:
*1 Plaintiff commenced this action on May 6, 2024, asserting that Defendants violated his due process and speedy trial rights,
and that he received ineffective assistance of counsel in an underlying state criminal action. See Dkt. No. 1. In a Report-
Recommendation and Order dated November 21, 2024, Magistrate Judge Hummel granted Plaintiff's request to proceed in
forma pauperis and conducted an initial review of the complaint. See Dkt. No. 8. In the Report-Recommendation and Order,
Magistrate Judge Hummel concluded that, in addition to the complaint being subject to dismissal for failure to comply with Rule
8 of the Federal Rules of Civil Procedure, Plaintiff's due process, speedy trial, and ineffective assistance of counsel claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994), because Plaintiff's underlying state court conviction has not been reversed on
direct appeal or otherwise expunged. See id. at 8-10. Moreover, the Report-Recommendation and Order recommended dismissal
of the claims against Defendants Smrtic, Coffinger, and Catena since they are barred by absolute judicial immunity. See id.
at 10-12. To the extent Plaintiff is attempting to assert a claim against the Appellate Division, Third Department, Magistrate
Judge Hummel found that the claim is barred by Eleventh Amendment immunity because the Appellate Division “ ‘is merely an
agency or arm of New York State.” Id. at 12-13 (quotation omitted). Finally, Magistrate Judge Hummel recommended that the
claims against Defendant Maxwell be dismissed because he is protected by prosecutorial immunity. See id. at 13-14. Plaintiff
has not objected to the Report-Recommendation and Order.
When a party files specific objections to a magistrate judge's report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). However, when a party files “[g]eneral or conclusory objections, or objections which merely recite
the same arguments [that he] presented to the magistrate judge,” the court reviews those recommendations for clear error only.
O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After
the 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).
In the present matter, the Court finds that Magistrate Judge Hummel correctly determined that Plaintiff's complaint must be
dismissed. Plaintiff's complaint makes clear that his claims stem from alleged violations of his rights that occurred during an
underlying state criminal case. See Dkt. No. 1 at 3-4; Dkt. No. 7 at 4. Since Plaintiff's criminal conviction has not been reversed,
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expunged by executive order, or called into question by a federal court's issuance of a writ of habeas corpus, Plaintiff's claims
brought pursuant to Section 1983 are barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Strong v. Watson, No. 1:22-cv-552,
2023 WL 8439445, *14-15 (W.D.N.Y. Sept. 26, 2023) (dismissing the plaintiff's claims of malicious prosecution, conspiracy,
speedy trial violations, denial of due process, and denial of equal protection under Heck because the claims “all seek to impugn
the validity of his underlying state court criminal charges”).
*2 Magistrate Judge Hummel also correctly determined that, in the alternative, the claims against the named Defendants
are subject to dismissal based on absolute judicial and prosecutorial immunity. The allegations against Defendants Smrtic,
Coffinger, and Catena make clear that these individuals were acting in their judicial capacities and that their actions were not
taken in the absence of jurisdiction. Accordingly, they are entitled to absolute judicial immunity. See Ceparano v. Southampton
Just. Ct., 404 Fed. Appx. 537, 539 (2d Cir. 2011). As to Defendant Maxwell, Plaintiff has alleged that he withheld exculpatory
evidence in the underlying criminal matter. Since this conduct clearly involves “prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process,’ ” Defendant Maxwell is entitled to absolute prosecutorial immunity. See Barr
v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Additionally, to the
extent Plaintiff has attempted to assert claims against the Appellate Division, Third Department, the claims must be dismissed
because the Third Department is an arm of New York State and is entitled to Eleventh Amendment immunity. See Benyi v. New
York, No. 3:20-cv-1463, 2021 WL 1406649, *5 (N.D.N.Y. Mar. 23, 2021) (citation omitted).
Finally, the Court agrees with Magistrate Judge Hummel that, because it is clear that the issues with Plaintiff's complaint are
substantive and not something that can be corrected by better pleading, Plaintiff will not be afforded an opportunity to amend
his complaint. See Phillips v. New York, No. 5:13-cv-927, 2013 WL 5703629, *5 (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's November 21, 2024, Report-Recommendation and Order (Dkt. No. 8) is ADOPTED
in its entirety for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without leave to amend; and the Court further
ORDERS that Plaintiff's motion for permission to file electronically (Dkt. No. 4) and motion to appoint counsel (Dkt. No. 5)
are DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants’ favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 247901
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Bennett v. Bailey, Not Reported in Fed. Supp. (2020)
2020 WL 5775940
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2020 WL 5775940
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Andrew S. BENNETT and Kristina M. McDonald, Plaintiffs,
v.
Don BAILEY and Route 11 Motorsports, Defendants.
5:20-CV-903 (GTS/ATB)
|
Signed 08/17/2020
Attorneys and Law Firms
ANDREW S. BENNETT and KRISTINA M. McDONALD, Plaintiffs Pro Se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent to the court for review a complaint brought pursuant to 42 U.S.C. § 1983, filed by plaintiffs Andrew
S. Bennett and Kristina M. McDonald. (Dkt. No. 1). Plaintiffs have also applied to proceed in forma pauperis (“IFP”). 1 (Dkt.
No. 2).
1 Both plaintiffs have signed the complaint and the IFP application and are each representing themselves. Because
this court is recommending dismissal for lack of jurisdiction, the court will not require plaintiffs to file separate IFP
applications.
I. IFP Application
Plaintiffs declare in their IFP application that they are unable to pay the filing fee. (Dkt. No. 2). After reviewing his application,
this court finds that plaintiffs are financially eligible for IFP status.
However, in addition to determining whether plaintiffs meet the financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall
dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §
1915 (e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court
process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802,
804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in
ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to
respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss
a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
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To survive dismissal for failure to state a claim, the 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)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
II. Complaint
Plaintiffs allege that on March 17, 2020, they purchased a car from the defendant Don Bailey and his company Route 11
Motorsports. (Complaint (“Compl.”) ¶ 4 at p.2 (Facts)). Plaintiffs claim that defendant Bailey gave them a “90 Day Warranty”
which he is not honoring. (Id.) Two days after they purchased the vehicle, the motor began “knocking,” and plaintiffs contacted
Don Bailey, who has failed to rectify the situation. (See Compl. generally ¶ 4 at pp.3-6). Plaintiffs seek a full refund of the
purchase price of the vehicle and damages for pain and suffering for a total of $10,500. (Compl. ¶¶ 5-6).
III. Subject Matter Jurisdiction
A. Legal Standards
*2 Federal courts are courts of limited jurisdiction, have only the power that is authorized by Article III of the Constitution,
and may only preside over cases that fall within the subject matters delineated by Congress. Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986) (citation omitted). The court must determine whether it has subject matter jurisdiction, and
must dismiss a case at any stage of the proceedings if it determines that jurisdiction is lacking. Cave. v. East Meadow Union
Free School Dist., 514 F.3d 240, 250 (2d Cir. 2008).
In addition, federal courts have an “independent obligation” to consider the presence or absence of subject matter jurisdiction
sua sponte. Leopard Marine & Trading, Ltd. v. Easy Street, Ltd., 896 F.3d 174, 181 (2d Cir. 2018) (quoting In re Quigley Co.,
Inc., 676 F.3d 45, 50 (2d Cir. 2012). Subject matter jurisdiction can never be waived or forfeited. ACCD Global Agriculture,
Inc. v. Perry, No. 12 Civ. 6286, 2013 WL 840706, at *1 (S.D.N.Y. March 1, 2013) (quoting Dumann Realty, LLC v. Faust, No.
09 Civ. 7651, 2013 WL 30672, at *1 (S.D.N.Y. Jan. 3, 2013) (citing Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 434-35 (2011)).
Federal question jurisdiction pursuant to 28 U.S.C. § 1331 provides a basis for jurisdiction when the plaintiff brings a civil
action that arises “under the Constitution, laws, or treaties of the United States.” 28 U.S. C. § 1331. Diversity jurisdiction is
present when an action is between citizens of different states, and when the amount in controversy is in excess of $75,000.00.
28 U.S.C. § 1332(a)(1).
B. Application
1. Section 1983
a. Legal Standards
In order to bring a civil rights action under 42 U.S.C. § 1983, the plaintiff must establish that a defendant, who acts under color
of state law, has caused the deprivation of a right protected by the federal constitution or laws. 42 U.S.C. § 1983. A person acts
under color of state law when he or she acts in his or her official capacity, “clothed with the authority of state law,” or acts under
“pretense” of law by purporting to act with official power. Pleasure Island, Inc. v. City of New York, No. 12 Civ. 4699, 2013
WL 2311837, at *5-6 (E.D.N.Y. May 24, 2013) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)).
The requirement that the defendant acted under “color of state law” is jurisdictional. Lucas v. Riggi, No. 07-CV-6200, 2008 WL
4758706, at *2 (W.D.N.Y. Oct. 29, 2008) (citing Polk County v. Dodson, 454 U.S. 312, 315 (1981)). Private conduct is simply
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beyond the reach of section 1983 “ ‘no matter how discriminatory or wrongful” that conduct may be.” Id. (quoting American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). A private party may act under color of state law if he or she engages
in conduct that constitutes willful participation in joint activity with the state. Sybalski v. Indep. Grp. Home Living Program,
Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per curiam). The nexus to the state must be so close as to be fairly treated as that of the
state itself. Tancredi v. Metro Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (citations omitted).
b. Application
The defendants in this action are a private individual and what appears to be his car dealership. There is no indication that either
of the defendants acts under color of state law. Therefore there is no jurisdiction under section 1983 for the plaintiffs’ case.
The court realizes that the plaintiffs are pro se and will attempt to determine whether there is any other jurisdictional basis for
plaintiffs to bring an action in this court pursuant to federal question or diversity jurisdiction. 2
2 A pro se plaintiff's pleadings are interpreted to raise the strongest arguments that they suggest. Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994).
2. Magnuson-Moss Warranty—Federal Trade Commission Act (“MMWA”), 15 U.S.C. § 2301
a. Legal Standards
*3 The MMWA, is also known as the federal “lemon law.” Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 222 (2d Cir.
2017). The MMWA “is a remedial statute designed ‘to improve the adequacy of information available to consumers, prevent
deception, and improve competition in the marketing of consumer products.’ ” Id. (quoting Motor Vehicle Mfrs. Ass'n of U.S.,
Inc. v. Abrams, 899 F.2d 1315, 1317 (2d Cir. 1990)) (quoting 15 U.S.C. § 2302(a)). The MMWA allows “a consumer who
is damaged by the failure of a supplier, warrantor, or service contractor to comply with ... a written warranty [or] implied
warranty ... [to] bring suit for damages and other legal and equitable relief.’ ” Id. (quoting 15 U.S.C. § 2310(d)(1)). However,
the MMWA provides for federal jurisdiction under certain circumstances. Id. MMWA claims may be brought in federal court
only if the amount in controversy meets or exceeds $50,000 (exclusive of interests and costs), computed on the basis of all
claims in the action. Id. (citing § 2310(d)(3)(B)).
b. Application
Plaintiffs in this action allege that the value of the car was $7,000.00 and their “pain and suffering” was worth another $3,500.00
for a total of $10,500.00 in damages. (Compl. ¶¶ 5-6). Thus, even if plaintiffs could make a claim under the MMWA for the
failure of defendants to abide by their warranty, and even if they had cited the appropriate statute, plaintiffs cannot meet the
jurisdictional amount for bringing an MMWA claim in federal court.
3. Contract Claims
a. Legal Standards
Contract actions are generally state law claims, “governed by state law standards and analyzed using the familiar elements
applied in a New York breach of contract action.” Liana Carrier Ltd. v. Pure Biofuels Corporation, 672 F. App'x 85, 92 (2d Cir.
2016). Contractual obligations, are inherently creatures of state law. Eugene Iovine, Inc. v. City of New York, No. 98 Civ. 2767,
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1999 WL 4899, at *2 (S.D.N.Y. Jan. 5, 1999) (citing Gully v. First National Bank in Meridian, 299 U.S. 109, 115 (1939)). “[A]
complaint alleging a violation of a state cause of action, when Congress has determined that there should be no private, federal
cause of action for the violation, does not state a claim ‘arising under the Constitution, laws, or treaties of the United States.’ ”
Id. (quoting Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817 (1986)).
b. Application
Plaintiffs in this case essentially argue that defendant Bailey did not honor his agreement to fix the plaintiffs’ car and now does
not return their calls or texts. (Compl. ¶ 4 at pp.5-6). As stated above, plaintiffs do not meet the jurisdictional minimum for an
MMWA claim. To the extent that plaintiffs are trying to state a contract claim or a simple warranty claim, there is no jurisdiction
in federal court for this action, given the facts of plaintiffs’ case. While federal courts decide state law claims, those claims are
generally either supplemental to a federal claim 3 or brought under diversity jurisdiction. There are no viable federal claims
in this action. Thus, supplemental jurisdiction does not apply. Plaintiffs and defendants are citizens of the same state, and the
amount in controversy is less than the jurisdictional amount of $75,000.00. Thus, there is no diversity jurisdiction. Because
there is no jurisdiction to decide plaintiffs’ claims, I must recommend dismissal.
3 28 U.S.C. § 1367(a) provides that
in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or intervention of additional parties.
IV. Opportunity to Amend
A. Legal Standards
*4 Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to
amend at least once, however, leave to re-plead may be denied where any amendment would be futile. Hill v. Curcione, 657
F.3d 116, 123-24 (2d Cir. 2011); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the
problem with plaintiffs’ causes of action is substantive such that better pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
B. Application
There is no subject matter jurisdiction for plaintiffs to bring this action in federal court. It does not appear that any amendment or
additional pleading will cure the defects in jurisdiction. Because there is no subject matter jurisdiction, the court will recommend
dismissing the action without prejudice to plaintiffs bringing their claims in the appropriate state court. However, such dismissal
should be without the opportunity to amend since plaintiffs will not be able to cure the deficiency in their complaint with better
pleading.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiffs’ application to proceed IFP (Dkt. No. 2) is GRANTED ONLY TO THE EXTENT NECESSARY
TO FILE THIS ACTION, and it is
RECOMMENDED, that the plaintiffs’ complaint be DISMISSED WITHOUT PREJUDICE FOR LACK OF SUBJECT
MATTER JURISDICTION, BUT WITHOUT THE OPPORTUNITY TO AMEND, and it is.
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation on plaintiffs by regular mail.
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Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d
85, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)
(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2020 WL 5775940
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2020 WL 5775231
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United States District Court, N.D. New York.
Andrew S. BENNETT; and Kristina M. McDonald, Plaintiffs,
v.
Don BAILEY; and Route 11 Motorsports, Defendants.
5:20-CV-0903 (GTS/ATB)
|
Signed 09/28/2020
Attorneys and Law Firms
ANDREW S. BENNETT and KRISTINA M. McDONALD, Plaintiffs, Pro Se, 1137 Roberts Hollow Road, Lowman, New
York 14861.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se habeas breach-of-contract action filed by Andrew S. Bennett and Kristina M.
McDonald (“Plaintiffs”) against Don Bailey and Route 11 Motorsports (“Defendants”) pursuant to 42 U.S.C. § 1983, is United
States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Plaintiffs’ Complaint be dismissed
without prejudice for lack of subject-matter jurisdiction pursuant to 28 U.S.C. § 1915 and that such dismissal should be without
prior leave to amend. (Dkt. No. 3.) Plaintiffs have not filed an objection to the Report-Recommendation, and the time in which
to do so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter's thorough Report-Recommendation,
the Court can find no clear-error in the Report-Recommendation. 1 Magistrate Judge Baxter employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted
and adopted in its entirety for the reasons set forth therein, and Plaintiffs’ Complaint is dismissed without prejudice for lack
of subject-matter jurisdiction.
1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear-
error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection
is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 3) is ACCEPTED and ADOPTED in its
entirety; and it is further
ORDERED that Plaintiffs’ Complaint (Dkt. No. 1) is DISMISSED without prejudice for lack of subject-matter jurisdiction.
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All Citations
Not Reported in Fed. Supp., 2020 WL 5775231
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Kurtz v. Smith, Slip Copy (2025)
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United States District Court, N.D. New York.
Thomas KURTZ, Plaintiff,
v.
SMITH, et al., Defendants.
3:25-cv-0692 (LEK/TWD)
|
Signed 10/03/2025
Attorneys and Law Firms
THOMAS KURTZ, Plaintiff, pro se, 23-B-2545, Mid-State Correctional Facility, P.O. Box 2500, Marcy, NY 13403
REPORT-RECOMMENDATION AND ORDER
Thérèse Wiley Dancks, United States Magistrate Judge
I. INTRODUCTION
*1 The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Thomas Kurtz (“Plaintiff”) asserting
claims pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Plaintiff, who is currently confined at Mid-State Correctional Facility, has
not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). See Dkt. Nos. 2, 3, 7. Plaintiff has
also requested the appointment of counsel. See Dkt. No. 4.
II. IFP APPLICATION
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee
that would ordinarily be charged.” Cash v. Bernstein, No. 1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).
“Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay
the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. §
1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)); see also 28 U.S.C. § 1915A(c) (“As used in this section,
the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for,
or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program.”).
Upon review, Plaintiff's IFP application demonstrates economic need. See Dkt. No. 7. Because Plaintiff has met the statutory
requirements of 28 U.S.C. § 1915(a) and has filed the inmate authorization form required in this District he is granted permission
to proceed IFP. 1
1 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he may incur in this action,
including copying and/or witness fees.
III. COMPLAINT
Plaintiff states he was an “account holder at the federal credit union Ithaca ... from 1994 to 2018.” Dkt. No. 1 at 1. 2 Plaintiff
identified four defendants in the list of parties: (1) “A. Brown ... the executive Director assistant for Community Federal credit
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union;” (2) “Smith ... the Teller of the Community Federal credit union;” (3) “Brian, ... the Accountant for Petitioners custom
inheritance account;” and (4) “city of Ithaca ... a municipal corporation of the state of new york.” Id. at 2-3. Additionally,
“Grand” and “Community Federal Credit Union” are listed as defendants in the complaint's caption. See id. at 1.
2 Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in
spelling, punctuation, and grammar have not been corrected.
Plaintiff states the “action arises under and is brought pursuant to 42 U.S.C. Section 1983 to remedy the theft and deprivation
of state and Federal law, of rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
This Court has jurisdiction over this action pursuant to 28 U.S.C.A Sections 1331 and 1343.” Id. at 3. Plaintiff alleges the
“defendants ... deprived to plaintiff access to his money in the amount of two-million eight-hundred thousand dollars. And stole
from petitioners account ....” Id. at 5. He further avers “Defendants also violated (A.T.A.) 18 U.S.C.A. § 2333 as sponsors of
Terrorism.” Id.
*2 Plaintiff asserts he previously “filed a Article 78 to obtain contract records by the Bank in relation to his accounts ... and a
civil claim for the money that came up thefted from his custom enheritence account in 2020.” Id. at 4. “Defendants Smith, A.
Brown, Brian, [and] Grand” were parties to the prior lawsuits in County of Tompkins Supreme Court. Id. The instant complaint
contains the following factual allegations:
Defendant Brian had transferred petitioners inheritance account to his name in 2018 in December. On
May 15 2014 a treasury check addressed to 1875 State Route 38-B newark valley NY 13811 with
petitioners name as benefishary, Smith was the teller at 409 meadow street that day. Petitioner was told
he had to wait for the check to clear and he couldn't put the money in a conditional Deposit, Smith made
a copy of [Plaintiff]’s NY Drivers license and cashed the check. A. Brown saw the transaction stole some
of the money with Brian and Smith in 2020, and 11 U.S.C. § 110(b), violated 18 U.S.C. (2333) (ATA)
no-144-222, 130 stat.
Id. at 6. Plaintiff requests the following relief: (1) “the court to make the Defendants and or Bank give [Plaintiff his] money
back ... and open [his] account;” (2) “an order declaring that the defendants have acted in violation of the united states
constitution;” (3) “an injunction compelling defendants to provide or stop: declaring petitioner is at falt;” and (4) “Two-million
eight hundred be replaced back into his account and Name.” Id. at 6-7.
IV. LEGAL STANDARD
Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915A(b)(1)-(2); § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d
Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.”).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in original).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989),
abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25,
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33 (1992) (“[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the
wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are clearly
baseless ... or (2) the claim is based on an indisputably meritless legal theory.”).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil Procedure. To survive dismissal for
failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled
to relief. Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S.
at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
*3 In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material
facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin,
18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795
(2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the
problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000).
V. ANALYSIS
A. City of Ithaca
As explained above, Plaintiff identified the “city of Ithaca” New York as a defendant in the list of parties. See Dkt. No. 1 at 3.
However, the city of Ithaca is not listed in the complaint's caption. See id. at 1.
Rule 10(a) of the Federal Rules of Civil Procedure provides, “the title of the complaint must name all the parties.” Fed. R. Civ.
P. 10(a). As a result, “[a] party not named in the caption of the complaint is not a party to the action.” Neal v. Riley, No. 9:25-
CV-0709 (GTS/MJK), 2025 WL 2370956, at *4 (N.D.N.Y. Aug. 14, 2025) (citation omitted). Accordingly, insofar as Plaintiff
seeks to state a claim against the city of Ithaca, any such claim must be dismissed for failure to state a claim. See, e.g., id.
(“[P]laintiff's allegations against any individual who is not named or identified in the complaint or caption ... are dismissed for
failure to state a claim.”); Paul v. Onondaga Cnty. Dist. Attorney's Off., No. 5:23-CV-1385 (GTS/TWD), 2024 WL 445701, at
*5 (N.D.N.Y. Feb. 6, 2024), report and recommendation adopted, 2024 WL 2835709 (N.D.N.Y. June 4, 2024).
In any event, Plaintiff's complaint lacks any factual allegations against the city of Ithaca. See Dkt. No. 1 at 5-6. Therefore, even
if the city of Ithaca had been properly listed in the complaint's caption, dismissal would still be required for failure to state
claim. See, e.g., Brisman v. Graham, No. 9:15-CV-0712 (LEK/DEP), 2015 WL 13821095, at *11 (N.D.N.Y. Aug. 28, 2015)
(dismissing claims against defendants named in the plaintiff's complaint where the complaint contained “no factual allegations
against them.”) (citing Cipriani v. Buffardi, No. 9:06-CV-0889 (LEK/DRH), 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007)
(“Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the
defendant did to the plaintiff.”)).
B. Smith, A. Brown, Grand, Brian, and Community Federal Credit Union
Federal courts exercise limited jurisdiction pursuant to Article III of the Constitution. A court may exert subject matter
jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States” and civil actions where
there is diversity of citizenship between the parties and the amount in controversy exceeds the sum of $75,000. 28 U.S.C. §§
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1331, 1332. In the absence of a basis for exercising jurisdiction, the case must be dismissed. Fed. R. Civ. P. 12(h)(3); United
States v. Cotton, 535 U.S. 625, 630 (2002); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (“A claim invoking
federal-question jurisdiction under 28 U.S.C. § 1331 ... may be dismissed for want of subject-matter jurisdiction if it is not
colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and
frivolous.’ ”) (citing Bell v. Hood, 327 U.S. 678, 682-83 (1946)) (additional citations omitted). “[F]ailure of subject matter
jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte.” Lyndonville Sav. Bank & Trust
Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000).
*4 Even afforded a liberal construction, Plaintiff's complaint has failed to allege a federal claim such that the Court's federal
question subject matter jurisdiction under 28 U.S.C. § 1331 may be invoked. See generally, Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000) (the plaintiff bears the burden of establishing subject matter jurisdiction). It appears Plaintiff seeks
to invoke federal question subject matter jurisdiction given his statement the “action arises under and is brought pursuant to
42 U.S.C. Section 1983 to remedy the theft and deprivation of state and Federal law, of rights guaranteed by the Eighth and
Fourteenth Amendments to the United States Constitution.” Dkt. No. 1 at 3. 3
3 Additionally, the complaint references the anti-terrorism act, 18 U.S.C. § 2333. See id. at 5-6.
However, “[t]o state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was
attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured
by the Constitution or laws of the United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston
v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)); see also Bennett v. Bailey, No. 5:20-CV-0903 (GTS/ATB), 2020 WL 5775940, at
*2 (N.D.N.Y. Aug. 17, 2020) (“The requirement that the defendant acted under ‘color of state law’ is jurisdictional.”) (citation
omitted), report and recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). “Section 1983 itself creates no
substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)) (additional citation omitted).
Here, Defendants Smith, A. Brown, Grand, Brian, and Community Federal Credit Union are private individuals and an entity
that Plaintiff has not alleged to have any connection with any government body or to have acted under color of state law. Basile
v. Connolly, 538 F. App'x 5, 7 (2d Cir. 2013) (explaining, “private individuals ... cannot be sued under 42 U.S.C. § 1983 absent
a plausible allegation that they acted under color of state law.”); Story v. Cent. Intel. Agency, No. 1:24-CV-00631 (MAD/CFH),
2024 WL 4849844, at *2 (N.D.N.Y. Nov. 21, 2024) (explaining, “to the extent Plaintiff alleges that civilian conduct violated his
constitutional rights, such claims cannot amount to a violation of Plaintiff's constitutional rights because private individuals are
not state actors.”); see also Menard v. First Source Fed. Credit Union, No. 6:22-CV-0038 (DNH/TWD), 2022 WL 226763, at
*3 (N.D.N.Y. Jan. 26, 2022) (explaining, “courts have repeatedly held that federal credit unions are not state actors.”) (citation
omitted), report and recommendation adopted, 2022 WL 446434 (N.D.N.Y. Feb. 14, 2022). Furthermore, “it is well settled that
to state a civil rights claim under § 1983, a complaint must contain specific allegations of fact which indicate a deprivation
of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to
state a claim under § 1983.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). Accordingly, Plaintiff's conclusory
allegations that his Eighth and Fourteenth Amendment rights were violated are insufficient to state a claim under Section 1983.
Moreover, there is nothing in Plaintiff's complaint which would indicate the Court may exercise diversity jurisdiction pursuant
to 28 U.S.C. § 1332. To that end, the complaint is completely devoid of any information concerning the Defendants’ domicile;
therefore, it is not clear whether the parties are “citizens of different States.” See 28 § 1332(a)(1); see also, e.g., Cushing
v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992) (“28 U.S.C. § 1332 requires complete diversity between all plaintiffs and all
defendants ....”); Rashid v. Sufyan, No. 1:16-CV-1094 (FJS/DJS), 2016 WL 7077082, at *3 (N.D.N.Y. Nov. 4, 2016) (“For
diversity jurisdiction purposes, an individual's citizenship is the individual's domicile, which is determined on the basis of
two elements: (1) physical presence in a state and (2) the intent to make the state a home.”) (internal quotations and citations
omitted), report and recommendation adopted, 2016 WL 7053412 (N.D.N.Y. Dec. 5, 2016). It follows that Plaintiff has failed
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to invoke diversity jurisdiction. Accordingly, the Court recommends dismissal of Plaintiff's claims against Smith, A. Brown,
Grand, Brian, and Community Federal Credit Union for lack of subject matter jurisdiction.
*5 As previously stated, before dismissing a pro se complaint or any part of the complaint sua sponte, the Court should
generally afford the plaintiff an opportunity to amend at least once; however, leave to re-plead may be denied where any
amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Further, where a Court lacks
subject matter jurisdiction over a plaintiff's claims, dismissal without prejudice is required. See Hollander v. Garrett, 710 F.
App'x 35, 36 (2d Cir. 2018) (Summary Order). Accordingly, the undersigned recommends granting Plaintiff leave to amend
his complaint.
The Court advises Plaintiff that should he be permitted to amend his complaint, any amended pleading he submits to this Court
must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint should specifically
identify the legal theory or theories that form the basis for his claim. Plaintiff is cautioned that no portion of his prior complaint
shall be incorporated into his amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth
all of the claims he intends to assert against the Defendant and must demonstrate that a case or controversy exists between the
Plaintiff and the Defendant which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff is
alleging the Defendant violated a law, he should specifically refer to such law. Of course, Plaintiff may also pursue his claims
in state court if appropriate.
VI. MOTION TO APPOINT COUNSEL
Finally, Plaintiff has filed a motion requesting the appointment of counsel. See generally, Dkt. No. 4. Plaintiff states he has
written to “a dozen attorneys offices and not one will represent me.” Id. at 1. Based on the above recommendation to dismiss
the complaint in its entirety, the undersigned further recommends Plaintiff's motion for counsel, Dkt. No. 4, be denied as moot.
See, e.g., Canfield v. Tartaglia, No. 6:24-CV-1303 (GTS/TWD), 2025 WL 553468, at *4 (N.D.N.Y. Feb. 19, 2025), report and
recommendation adopted, 2025 WL 949845 (N.D.N.Y. Mar. 28, 2025); Salaam v. Dep't of Corr. & Cmty. Supervision, No. 9:19-
CV-0689 (BKS/TWD), 2019 WL 4415624, at *4 (N.D.N.Y. Sept. 16, 2019).
VII. CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 7) is GRANTED, and it is
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED; and it is further
RECOMMENDED that Plaintiff's motion to appoint counsel (Dkt. No. 4) be DENIED; and it is further
ORDERED that the Clerk provide to Plaintiff 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).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing
report. 4 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., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
4 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-
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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. Fed. R. Civ. P. 6(a)(1)(C).
*6 IT IS SO ORDERED.
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Thomas KURTZ, Plaintiff,
v.
SMITH, et. al., Defendants.
3:25-cv-692 (LEK/TWD)
|
Signed 01/22/2026
Attorneys and Law Firms
Thomas Kurtz, Marcy, NY, Pro Se.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Thomas Kurtz filed this action, in forma pauperis, on June 2, 2025, pursuant to 42 U.S.C. § 1983, alleging, that
the Defendants deprived him access to his money, stole from his account, and violated the Antiterrorism act, 18 U.S.C. § 233, as
“sponsors of Terrorism.” Dkt. No. 1 (“Complaint”), Dkt. No. 7 (“IFP Application”). Plaintiff also filed a motion requesting the
appointment of counsel. Dkt. No. 4. On October 3, 2025, the Honorable Therese Wiley Dancks, United States Magistrate Judge,
issued a Report-Recommendation and Order recommending that the Court grant Plaintiff's IFP Application, dismiss Plaintiff's
Complaint, and deny Plaintiff's request for the appointment of counsel. Dkt. No. 13 (“Report and Recommendation”). Plaintiff
has filed objections. Dkt. No. 16 (“Objection”), Dkt. No. 17 (“Supplemental Objections”); Dkt. No. 21 (“Second Supplemental
Objections”). On December 10, 2025, Plaintiff also filed an amended complaint. Dkt. No. 22 (“Amended Complaint”).
For the reasons that follow, the Court adopts the Report and Recommendation in its entirety.
II. BACKGROUND
The Court assumes familiarity with Judge Dancks's Report and Recommendations, as well as Plaintiff's factual allegations as
detailed therein. See R. & R. at 2–3.
III. LEGAL STANDARD
“Rule 72 of the Federal Rules of Civil Procedure and Title 28 United States Code Section 636 govern the review of decisions
rendered by Magistrate Judges.” A.V. by Versace, Inc. v. Gianni Versace, S.p.A., 191 F. Supp. 2d 404, 405 (S.D.N.Y. 2002); see
also 28 U.S.C. § 636; Fed. R. Civ. P. 72. Review of decisions rendered by magistrate judges are also governed by the Local
Rules. See L.R. 72.1. 28 U.S.C. § 636 states:
Within fourteen days after being served with a copy [of the Magistrate Judge's report and
recommendation], any party may serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court shall make a de novo determination
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of those portions of the report or specified proposed findings or recommendations to which objection
is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also receive further evidence or recommit
the matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1)(C). When written objections are filed and the district court conducts a de novo review, that “de novo
determination does not require the Court to conduct a new hearing; rather, it mandates that the Court give fresh consideration
to those issues to which specific objections have been made.” A.V. by Versace, 191 F. Supp. 2d at 406 (emphasis in original).
“The district court may adopt those portions of a report and recommendation to which no timely objections have been made,
provided no clear error is apparent from the face of the record.” DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y.
2009). “When a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will
review the [report and recommendation] strictly for clear error.” N.Y.C. Dist. Councils. of Carpenters Pension Fund v. Forde, 341
F. Supp. 3d 334, 336 (S.D.N.Y. 2018) (quoting Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)).
*2 “The objections of parties appearing pro se are ‘generally accorded leniency’ and should be construed ‘to raise the strongest
arguments that they suggest.’ ” DiPilato, 662 F. Supp. 2d at 340 (emphasis in original) (quoting Milano v. Astrue, No. 05-
CV-6527, 2008 WL 4410131, at *24 (S.D.N.Y. Sept. 26, 2008)). “Nonetheless, 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, such that no party be
allowed a second bite at the apple by simply relitigating a prior argument.” DiPilato, 662 F. Supp. 2d at 340 (quoting Pinkney
v. Progressive Home Health Servs., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008))
IV. DISCUSSION
Plaintiff filed three documents that he characterized as objections. See generally Obj.; Supp. Obj.; Second Supp. Obj. The court
does not find anything in these documents to be objections that are “specific and clearly aimed at particular findings in the
magistrate's proposal.” DiPilato, 662 F. Supp. 2d at 340. Indeed, Plaintiff's Objections and Supplemental Objections appear
to be restatements of his legal claims and the facts underlying his claim. See generally Obj.; Supp. Obj; Second Supp. Obj.
Accordingly, the Court will review the Report and Recommendation under the clear error standard of review. N.Y.C. Dist.
Councils. of Carpenters Pension Fund, 341 F. Supp. 3d at 336.
Further, Plaintiff's Amended Complaint does not solve the deficiencies in the original Complaint identified by Judge Dancks.
See generally R. & R. 5–10. The relevant differences between the first and second complaints are the removal of the city of
Ithaca and the Plaintiff's assertion that jurisdiction is proper under 42 U.S.C. §§ 1983, 1985(b), as well as 28 U.S.C. §§ 1331,
1343. Compare Compl. at 2–3, with Am. Compl. at 1, 4. Judge Dancks in her Report and Recommendation has thoroughly
explained why this Court lacks jurisdiction in this case under section 1983, as well as sections 1331, and 1343. See R. & R.
at 6–9. Having reviewed the Report and Recommendation for clear error, the Court finds none and adopts the Report and
Recommendation in its entirety.
Liberally construed, the Court understands Plaintiff in his Amended Complaint to be making an additional argument under 42
U.S.C. § 1985(3) that his rights were deprived by the Community Federal Credit Union. See Am. Compl. at 4–6. To successfully
make out a conspiracy claim under Section 1985(3) a plaintiff must allege:
1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges, and immunities under the laws; and 3) an act in furtherance of the conspiracy;
4) whereby a person is either injured in his persons or property or deprived of any right or privilege of a citizen of the United
States.
Britt v. Garcia, 457 F.3d 264, 269 n. 4 (2d Cir. 2006).
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For a conspiracy under Section 1985(3) to be actionable it also must be “motivated by some racial or ... class-based, invidious
discriminatory animus.” Cine Sk8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (internal quotes omitted). Here,
Plaintiff has not alleged anywhere in his Amended Complaint that he was deprived of rights as a result of a conspiracy motivated
by racial, class-based, or invidious discriminatory animus. See generally, Am. Compl.
The Court therefore dismisses Plaintiff's Complaint and terminates this action.
V. CONCLUSION
*3 Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No. 13, is APPROVED and ADOPTED in its entirety; and it is
further
ORDERED, that this action is DISMISSED; and it is further
ORDERED, that the Clerk close this action; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local
Rules.
IT IS SO ORDERED.
All Citations
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Shawn Taylor GAMMONS, Plaintiff,
v.
Samantha Anna-Kay CODY, et al., Defendants.
1:25-CV-941 (AJB/DJS)
|
Signed September 2, 2025
Attorneys and Law Firms
SHAWN TAYLOR GAMMONS, Plaintiff, Pro Se, Albany, New York 12206.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has forwarded for review a civil Complaint filed by Plaintiff. The Complaint was filed July 17, 2025. Dkt. No.
1, Compl. The filing fee in this action has not been paid, but Plaintiff has filed a motion to proceed in forma pauperis. Dkt. No.
2. That Motion has been granted. The matter has been referred to the undersigned for an initial review pursuant to L.R. 72.3.
I. FACTUAL ALLEGATIONS IN THE COMPLAINT
Plaintiff Shawn Taylor Gammons and Defendant Samantha Anna-Kay Cody were married and have two children together, S.N.
and S.M. See generally, Compl. Plaintiff and Defendant are now separated, and Samantha Cody now resides with Defendant
Derek Cody, in Freehold, New York. Compl. at ¶¶ 7 & 8. The children live with their mother in Freehold, while Plaintiff lives in
Albany, New York. Compl. at ¶¶ 5 & 6. In March 2025, domestic strife between Samantha Cody and Derek Cody precipitated
a custody proceeding in Greene County Family Court. Compl. at ¶¶ 18 & 19. This matter was assigned to Defendant Family
Court Judge Charles Tailleur and, it appears, is still ongoing. Judge Tailleur appointed Defendant Andrea Gamalski to represent
Plaintiff, Defendant Sondra Smith to represent Defendant Samantha Cody, and Defendants Max Zacker and James Gross to
represent S.N. and S.M. Gammons respectively. Compl. at ¶¶ 12-15. Plaintiff alleges these court appointed attorneys capitalized
on a bias against him, failed to make proper motions, provided ineffective counsel for his children, and refused to submit
favorable evidence. Compl. at ¶¶ 22 & 31.
Judge Tailleur issued, and at times extended, a temporary order of protection against Plaintiff, ordered him to pay child support,
and ordered to Plaintiff to serve 30 days in Greene County Jail on account of his failure to do so. Plaintiff alleges that he
was not given sufficient notice of the hearing for a temporary order of protection. He further alleges that the child support
determinations of both Judge Tailleur and Defendant Sarah Richards, a child support magistrate, are without legal justification
or jurisdiction, and that conclusions of his violation and the subsequent jail time are based on erroneous information provided
to Greene County Family Court by Samantha and Derek Cody. Specifically, Plaintiff contests the sum of $27,000 owed in
child support as discharged by Judge Tailleur in an earlier proceeding. Plaintiff alleges, as part of a broader conspiracy, that
his testimony was systematically excluded, while representations by Defendants, including court appointed attorneys, were
admitted despite what he contends are either biases or outright lies. Plaintiff also takes issue with the denial of certain proposed
conditions of custody issued by Judge Tailleur. See generally Compl.
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Plaintiff also lists his children as plaintiffs in this action. He claims his children were prevented from participating in the Family
Court proceedings, exposed to domestic violence by Samantha and Derek Cody, and that S.N.G. was body-slammed by a New
York State Trooper and ordered to enroll in a Pre-Person's In Need of Supervision program without due process. Id.
*2 Plaintiff also claims he has been denied custodial, visitation, and parental rights with respect to S.N. and S.M. He further
claims that Samantha Cody attempted to prevent court-appointed attorneys from interviewing the children in relation to the
custody proceeding. Id.
Plaintiff alleges violations of his Fourth, Sixth, Seventh, Thirteenth, and Fourteenth Amendment rights by the Defendants.
Plaintiff also claims common law conversion as against Defendants Samantha and Derek Cody. Finally, he appears to allege
a separate due process violation against Columbia and Greene Counties. In his prayer for relief, Plaintiff demands a jury trial
and requests the arrest and deportation of Samantha Cody, sole legal and residential custody of S.N. and S.M., discharge of his
child support obligations, impeachment of all public officers named as Defendants in the case, a public apology, and derivative
use immunity. Compl. at pp. 15-16
II. GOVERNING LEGAL STANDARD
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, “(2) ... the court shall dismiss the case at
any time if the court determines that – ... (B) the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 1
1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605,
606 (2d Cir. 1990) (per curiam), and should exercise “extreme caution ... in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.”
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). Therefore, a court should not dismiss a complaint if the plaintiff has
stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 556).
Although a court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)
(2)). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading that only
“tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal quotation marks and alterations
omitted).
III. DISCUSSION
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A. Plaintiff's Claims on Behalf of his Children
*3 It appears that Plaintiff may intend to assert claims on behalf of his children. The Complaint identifies Plaintiff's children
as Plaintiffs. Compl. at p. 2. The children have not signed the Complaint. While a litigant in federal court has the right to act as
her own counsel, “[a] person who has not been admitted to the practice of law may not represent anybody other than [her]self.”
Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (citation omitted). This rule extends to parents: “a parent not admitted to the
bar cannot bring an action pro se in federal court on behalf of his or her child.” Tindall v. Pultney High School Dist., 414 F.3d
281, 284-85 (2d Cir. 2005). 2 As a result, any claim brought on behalf of the children should be dismissed. H.B. v. Brookdale
Hosp., 2022 WL 17539117, at *2 (E.D.N.Y. Dec. 8, 2022). 3
2 This is particularly true where as here “one parent is attempting to bring suit on behalf of a child against the other parent.”
Mulready v. Mulready, 2007 WL 1791120, at *1 (D. Conn. June 16, 2007).
3 The sole factual allegation in the Complaint against a State Trooper identified only as John Doe relates to allegations of
alleged assault against one of Plaintiff's children. Compl. at ¶ 17. Since there is no allegation that Doe violated Plaintiff's
rights, it is recommended that that claim be dismissed.
B. Judicial Immunity
Judge Charles Tailleur continues to preside over Family Court proceedings involving Plaintiff and Defendants Samantha
Anna-Kay Cody and Derek Cody. All claims against Judge Tailleur arise out of actions taken in his judicial capacity. At a
March 24, 2025 appearance, Judge Tailleur took testimony from the parties and issued a temporary order of protection against
Plaintiff. Compl. at ¶¶ 22 & 29. At an April 7, 2025 appearance, Judge Tailleur extended the temporary order of protection and
elicited more testimony from the parties. Compl. at ¶ 29. Finally, at a May 5, 2025 appearance, Judge Tailleur made several
determinations on the issue of custody, including with respect to a pick-up/drop-off location and visitation, and further extended
the temporary order of protection. Compl. at ¶ 31. Plaintiff contends that Judge Tailleur gave no legal justification for his rulings
on custody or visitation, or his extensions to the temporary order of protection.
Judicial immunity is applicable to conduct taken by the court as part of its judicial power and authority, and its absolute protection
extends to all judicial acts except those performed in the clear absence of all jurisdiction. See Pierson v. Ray, 386 U.S. 547,
554 (1967). The Supreme Court has emphasized that the scope of a judge's jurisdiction must be construed broadly. Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978) (citing Bradley v. Fisher, 80 U.S. 335, 336 (1871)). Generally, “acts arising out of, or
related to, individual cases before [a] judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009).
“[E]ven allegations of bad faith or malice cannot overcome judicial immunity.” Id. at 209. This is because “[w]ithout insulation
from liability, judges would be subject to harassment and intimidation.” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).
“Judicial immunity is overcome in only two circumstances: (1) a judge is not immune from liability for nonjudicial actions,
i.e., actions not taken in the judge's judicial capacity; and (2) a judge is not immune for actions, though judicial in nature, taken
in the complete absence of all jurisdiction.” McCluskey v. Roberts, 2022 WL 2046079, at *5 (2d Cir. June 7, 2022) (internal
quotation omitted). Acts related to a specific case, such as the orders of protection and support determinations at issue here, are
clearly judicial in nature. Bliven v. Hunt, 579 F.3d at 210. And “[j]udicial immunity applies to these judicial acts even if they
were allegedly done maliciously or corruptly.” McCluskey v. Roberts, 2022 WL 2046079, at *5. For these reasons, no exception
to the immunity doctrine applies and claims against Judge Tailleur should be dismissed.
*4 Defendant Richards is identified as a New York Support Magistrate. Compl. at ¶ 10. Plaintiff's claims against Defendant
Richards concern her role in child support determinations made on June 4, 2025. Plaintiff contests Richards's assessment that
Plaintiff owes $27,000 in child support to Samantha Cody and claims the sum was discharged as a result the divorce agreement
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he entered with his ex-wife in 2010. He further takes issue with Richards's demands to appear at a July 18, 2025 hearing with
copies of certain court records so that Judge Tailleur can properly adjudicate his case. These actions are also within the scope
of judicial immunity as they are an extension of the Court's custodial proceedings. See Gerken v. Gordon, 2024 WL 4608307,
at *8 (N.D.N.Y. Oct. 29, 2024) (child support magistrate found immune from suit under doctrine of judicial immunity); Clay v.
Bishop, 2023 WL 3352903, at *4 (N.D.N.Y. Feb. 7, 2023), report and recommendation adopted, 2023 WL 2910545 (N.D.N.Y.
Apr. 12, 2023). Thus, claims against Defendant Richards must also be dismissed.
The vast breadth of judicial immunity also protects judicial staff. See Rodriguez v. Weprin, 116 F.3d 62, 66-67 (2d Cir. 1997)
(“A court's inherent power to control its docket is part of its function of resolving disputes between parties. This is a function for
which judges and their supporting staff are afforded absolute immunity.”). “Judicial immunity has been extended to court clerks
and others who perform functions closely associated with the judicial process when they are performing discretionary acts of
a judicial nature which are essential to the judicial process, especially the filing of court documents and managing a court's
calendar.” Kellier v. Ross, 2022 WL 1292290, at *4 (S.D.N.Y. Apr. 29, 2022) (internal quotation omitted) (citing Cleavinger v.
Saxner, 474 U.S. 193, 200 (1985) and Rodriguez v. Weprin, 116 F.3d at 66). “Court clerks have absolute immunity from civil
liability based on actions they take in helping process cases, even if such actions are ‘ministerial’ or ‘administrative.’ ” Foy v.
New York State Unified Ct. Sys., 740 F. Supp. 3d 136, 150 (E.D.N.Y. 2024) (quoting Rodriguez v. Weprin, 116 F.3d at 66-67). As
to Defendant Paula Wright, Plaintiff complains of a hearing for a temporary order of protection of which he was not informed.
Compl. at ¶ 28-i. This is the only allegation against Wright and, because of it is in relation to docketing, scheduling, and court
proceedings, it clearly falls within that immunity. Foy v. New York State Unified Ct. Sys., 740 F. Supp. 3d at 150; Goldberg v.
Roth, 2001 WL 1622201, at *4 (S.D.N.Y. Dec. 17, 2001). 4
4 The Complaint also names Shara Berg as a Defendant. It appears that Berg is the Chief Clerk of Columbia
County Family Court. https://ww2.nycourts.gov/courts/3jd/columbia/3JD-Columbia%20Multi%20Courts.shtml. The
Court takes judicial notice of that fact. Serrano v. DiPerna, 2024 WL 5247710, at *2 (W.D.N.Y. Dec. 30, 2024). Any
claim made regarding Berg's handling of proceedings in state court are likewise covered by this judicial immunity
doctrine.
Accordingly, claims against Defendants Wright and Berg must also be dismissed.
C. State Action
“Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his
constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Flagg v. Yonkers
Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks omitted). “A plaintiff pressing a claim of violation
of his constitutional rights under § 1983 is thus required to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308,
312 (2d Cir. 2003). “State action requires both the exercise of some right or privilege created by the State and the involvement
of a person who may fairly be said to be a state actor.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (quoting
Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d at 186) (internal quotations and alterations omitted).
*5 The role of counsel appointed to represent Plaintiff and Defendant Anna-Kay Cody in state court litigation does not render
them state actors. See, e.g., Alexander v. Murphy, 2018 WL 3232349, at *5 (N.D.N.Y. July 2, 2018), report and recommendation
adopted, 2018 WL 6000145 (N.D.N.Y. Nov. 14, 2018) (private attorney not a state actor); Harrison v. New York, 95 F. Supp. 3d
293, 328 (E.D.N.Y. 2015) (citing cases). The same is true for counsel appointed to act as law guardians for the children. Parent
v. New York, 786 F. Supp. 2d 516, 538 (N.D.N.Y. 2011), aff'd, 485 F. App'x 500 (2d Cir. 2012) (“although appointed by the
state, an attorney for the children or law guardian is not a state actor because he or she must exercise independent professional
judgment on behalf of the clients they represent.”).
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The Complaint also names Samantha Anna-Kay Cody and Derek Cody as Defendants with respect to section 1983 claims.
Compl. at pp. 2 & 15. “Private parties are generally not amenable to suit under § 1983, because they are not state actors.” Bhatia
v. Yale Sch. of Med., 347 F. App'x 663, 664 (2d Cir. 2009). The mere fact that they allegedly availed themselves of the judicial
system, Compl. at ¶¶ 11-12, does not make them state actors. Sam & Mary Hous. Corp. v. New York State, 632 F. Supp. 1448,
1450 (S.D.N.Y. 1986) (“one does not become a state actor merely by being a litigant in a state court action.”).
Accordingly, the Court recommends that the section 1983 claims against Defendants Samantha Cody, Derek Cody, Gamalski,
Smith, Zacker, and Gross be dismissed based on a failure to allege state action.
D. Personal Involvement
Defendant Valerie Caruso is sued in her capacity as Director of Columbia County Support Collections Unit. Compl. at ¶ 16.
Though named in the Complaint, there are little, if any, specific factual allegations made against Defendant Caruso.
Liability under section 1983 action is appropriate only if a defendant was personally involved in the alleged constitutional
violation. See Wright v. Smith, 31 F.3d 496, 501 (2d Cir. 1994); Collins v. Saratoga Cty. Support Collection Unit, 2012 2571288,
at *3 (N.D.N.Y. July 3, 2012). “[M]ere ‘bald assertions and conclusion of law’ do not suffice.” Dorsey v. Fisher, 2010 WL
2008966, at *6 (N.D.N.Y. May 19, 2010) (quoting Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996)). Here, the lack of factual
allegations against this Defendant warrant dismissal of claims against Caruso. Hendrickson v. U.S. Atty. Gen., 1994 WL 23069,
at *3 (S.D.N.Y. Jan. 24, 1994), aff'd, 40 F.3d 1236 (2d Cir. 1994) (“To be sufficient before the law, a complaint must state
precisely who did what and how such behavior is actionable under law.”).
E. Conversion Claim
The second cause of action in the Complaint is identified as a conversion claim against Samantha and Derek Cody. Compl. at
p. 16. The allegations are brief and allege only that Defendant Samantha Cody “defrauded” multiple governmental agencies
through perjury. Id.
“According to New York law, ‘conversion is the unauthorized assumption and exercise of the right of ownership over goods
belonging to another to the exclusion of the owner's rights.’ ” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 403-04 (2d
Cir.), certified question accepted, 7 N.Y.3d 837, 857 N.E.2d 528 (2006), and certified question answered, 8 N.Y.3d 283 (2007).
Federal courts are courts of limited jurisdiction. Home Depot U. S. A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019). Jurisdiction
exists when the matter at issue arises “under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. Jurisdiction
also exists when diversity of citizenship is present. 28 U.S.C. § 1332. Conversion is a “pure state law claim[ ].” Greenidge v.
Mundo Shipping Corp., 41 F. Supp. 2d 354, 358 (E.D.N.Y. 1999). As a result, no federal “arising under” jurisdiction exists
for such a claim.
*6 “Diversity jurisdiction exists where the parties are citizens of different states and the amount in controversy exceeds
$75,000.” Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 455 (W.D.N.Y. 2011). “A case falls within the federal district court's
original diversity jurisdiction only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff
and no defendant who are citizens of the same State.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998) (internal
quotations omitted). Complete diversity is required – meaning if any Defendant is a resident of the same state as the Plaintiff,
diversity jurisdiction does not exist. Seemann v. Maxwell, 178 F.R.D. 23, 24 (N.D.N.Y. 1998). The Complaint specifically alleges
that both Plaintiff and the Cody Defendants are residents of New York. Compl. at p. 2. As a result, there is also no diversity
jurisdiction in this case and no independent jurisdictional basis for entertaining these claims.
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A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of
the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Having recommended dismissal of the federal claims over which
the Court has original jurisdiction, the Court also recommends that the District Court decline to exercise its supplemental
jurisdiction over any state law claims Plaintiff may be asserting.
F. Municipal Defendants
The third cause of action in the Complaint names Columbia County and Greene County as Defendants. Compl. at p. 16. Claims
against these Defendants should be dismissed.
In Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691 (1978), the Supreme Court found that “the language
of § 1983, read against the background of the ... legislative history, compels the conclusion that Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.”
Courts apply “rigorous standards of culpability and causation” to ensure that the municipality is not held liable solely for the
actions of its employees. Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000) (quoting Bd. of the Cnty. Comm'rs v. Brown, 520 U.S.
397, 405 (1997)). Thus, in order for an individual whose constitutional rights have been violated to have recourse against a
municipality under § 1983, he must show that he was harmed by a municipal “policy” or “custom.” Monell v. Dep't of Soc.
Servs. of the City of N.Y., 436 U.S. at 690-91. A “policy” or “custom” cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the State. See Oklahoma City v. Tuttle, 471 U.S. 808, 831 (1985) (Brennan, J.,
concurring in part and concurring in the judgment) (“To infer the existence of a city policy from the isolated misconduct of a
single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the
theory of strict respondeat superior liability rejected in Monell”).
Here, however, the Complaint identifies no unconstitutional policy on the part of either municipal Defendant. That omission
is fatal, at this juncture, to Plaintiff's Complaint. Arnold v. Town of Camillus, New York, 662 F. Supp. 3d 245, 259 (N.D.N.Y.
2023) (“Plaintiff has not identified any formal town policy that has deprived [him] of equal protection.”); Beckwith v. City of
Syracuse, 642 F. Supp. 3d 283, 293 (N.D.N.Y. 2022) (dismissal required when complaint “does not allege the existence of any
policy, practice, or custom from which [plaintiff's] alleged constitutional violation resulted.”).
*7 Claims against the municipal entities, therefore, should be dismissed.
G. Leave to Amend
“Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once ‘when
a liberal reading of the complaint gives any indication that a valid claim might be stated.’ ” Bruce v. Tompkins Cnty. Dep't of
Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991)). “However, where the grounds for dismissal offer no basis for curing the defects in the pleading, dismissal with
prejudice is appropriate.” Norwood v. Albany City Police Dep't, 2019 WL 7593292, at *2 (N.D.N.Y. Aug. 12, 2019), report
and recommendation adopted, 2019 WL 5415873 (N.D.N.Y. Oct. 23, 2019). Here, for the reasons set forth above, Plaintiff's
allegations that are barred by judicial immunity should be dismissed without leave to amend since no additional pleading could
undue that immunity. Since the law is clear that the attorneys assigned to represent parties to state court litigation are not
state actors, those claims too should be dismissed without leave to amend. Plaintiff could, perhaps, make factual allegations to
establish a claim against the remaining Defendants and so those claims should be dismissed with leave to amend.
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IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be DISMISSED as set forth above; and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 5 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. 72 & 6(a).
5 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-
day period, meaning that you have seventeen days from the date the 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. FED. R. CIV. P. 6(a)
(1)(C).
All Citations
Slip Copy, 2025 WL 2722411
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Gammons v. Cody, Slip Copy (2025)
2025 WL 2719776
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United States District Court, N.D. New York.
Shawn Taylor GAMMONS, Plaintiff,
v.
Samantha Anna-Kay CODY et al., Defendants.
1:25-CV-941 (AJB/DJS)
|
Signed September 24, 2025
Attorneys and Law Firms
SHAWN TAYLOR GAMMONS, Plaintiff, Pro Se, 85 Hunter Avenue, Albany, NY 12206.
ORDER ON REPORT & RECOMMENDATION
Anthony J. Brindisi, United States District Judge:
*1 On July 17, 2025, pro se plaintiff Shawn Taylor Gammons (“plaintiff”) filed this 42 U.S.C. § 1983 action, purportedly on
behalf of himself and his two minor children, against their mother and others involved in an ongoing custody proceeding in
Greene County Family Court. Dkt. No. 1. Along with his complaint, plaintiff moved for leave to proceed in forma pauperis
(“IFP Application”). Dkt. No. 2.
On September 2, 2025, U.S. Magistrate Judge Daniel J. Stewart granted plaintiff's IFP Application, Dkt. No. 2, and, after
conducting an initial review of plaintiff's pleading, advised by Report & Recommendation (“R&R”) that plaintiff's complaint
be dismissed with partial leave to amend. Dkt. No. 5.
First, Judge Stewart explained that plaintiff, as a non-lawyer, could not assert claims on behalf of his minor children in federal
court. Dkt. No. 5. Second, Judge Stewart determined that any claims against judicial officers or staff, including defendants
Tailleur, Richards, Wright, and Berg, must be dismissed because they were immune from suit under § 1983. Id. Third, Judge
Stewart concluded that several of the remaining defendants were not state actors and therefore could not be sued under §
1983. Id. Fourth, as for defendant Caruso and defendants Columbia and Greene Counties, Judge Stewart found that plaintiff's
complaint did not plausibly allege a § 1983 claim against these defendants. Id. Fifth, because plaintiff's federal claims were
being dismissed, Judge Stewart recommended that jurisdiction over the state-law claims should be declined. Id. Sixth, and
finally, Judge Stewart advised that plaintiff should be given partial leave to amend his complaint against the non-judicial and
non-attorney actors. Id. at 16.
Plaintiff has lodged objections. Dkt. No. 6. There, plaintiff indicates that he would like to abandon his claims related to domestic
relations law issues, but requests discovery into a long history of “court orders, records, and transcripts” that might establish
that one or more of the judicial defendants are not, in fact, immune from suit. See id.
Upon de novo review, the R&R will be accepted and adopted. See 28 U.S.C. § 636(b). The requests identified in plaintiff's
objections—including a possible stay for time to “gather all evidence possible”—are not bases on which to modify the R&R. As
plaintiff acknowledges, it is usually inappropriate to seek relief in federal court on “domestic relations” matters. Indeed, the so-
called “domestic relations exception” will often apply to deprive federal courts of the ability to hear matters that bear on those
topics. See, e.g., Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). Even so, and as Judge Stewart found, it is possible that
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plaintiff could plausibly allege a claim against one or more of the non-judicial, non-attorney defendants. Accordingly, plaintiff's
complaint will be dismissed with partial leave to amend.
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 5) is ACCEPTED;
2. Plaintiff's complaint (Dkt. No. 1) is DISMISSED with partial leave to amend;
*2 3. Plaintiff's § 1983 claims against defendants Tailleur, Richards, Wright, Berg, Gamalski, Smith, Zacker, and Gross are
DISMISSED without leave to amend;
4. Plaintiff's remaining claims are DISMISSED without prejudice;
5. Plaintiff shall have THIRTY DAYS from the date of this decision in which to file an amended complaint that conforms with
the guidance in Judge Stewart's R&R and this Order;
6. If plaintiff timely files an amended complaint, the matter shall be returned to Judge Stewart for further action as appropriate;
and
7. If plaintiff does not timely file an amended complaint, the Clerk of the Court is directed to enter a judgment dismissing this
action and close the file without further Order of the Court.
The Clerk of the Court is directed to terminate the pending motion and set deadlines accordingly.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2719776
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Johnson v. City of New York, Not Reported in Fed. Rptr. (2023)
2023 WL 3607219
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2023 WL 3607219
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United States Court of Appeals, Second Circuit.
Vandyke JOHNSON, Plaintiff-Appellant,
v.
CITY OF NEW YORK, N.Y.P.D. Officer Randazzo, Badge No. 959119, N.Y.P.D. Officer
Hotoniel Diaz, John Doe #1, John Doe #2, Racheal Garcia, Wandaly Torres, Diana Alama, CPS
Worker, David A. Hansell, Commissioner Administration for Children's Services, Jane Doe,
CPS Worker, Bronx Care Health System, Sheena Blaise, CPS Worker, Defendants-Appellees.
22-2096
|
May 24, 2023
Appeal from a judgment of the United States District Court for the Southern District of New York (George B. Daniels, Judge;
Barbara Moses, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the
district court is AFFIRMED.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Vandyke Johnson, pro se, New York, NY.
FOR CITY DEFENDANTS-APPELLEES: Lorenzo Di Silvio (Tahirih M. Sadrieh, on the brief), for Hon. Sylvia O. Hinds-
Radix, Corporation Counsel of the City of New York, New York, NY.
FOR DEFENDANT-APPELLEE BRONX CARE: Judy C. Selmeci (Wilson Elser Moskowitz, on the brief), Edelman & Dicker
LLP, New York, NY.
PRESENT: GUIDO CALABRESI, EUNICE C. LEE, ALISON J. NATHAN, Circuit Judges.
SUMMARY ORDER
*1 Appellant Vandyke Johnson, proceeding pro se, challenges the district court's dismissal of, inter alia, malicious prosecution
and false arrest claims brought pursuant to 42 U.S.C. § 1983. Johnson also appeals the dismissal of his § 1983 claims against
Bronx Care Health System (“Bronx Care”), which he brought on the contention that doctors examined his children over his
objections and thereby violated both his and his children's constitutional rights. We assume the parties’ familiarity with the
proceedings, which we discuss only as necessary to resolve this appeal.
In August 2019, Johnson was arrested after his stepdaughter filed a police report alleging physical violence by Johnson. Johnson
was arraigned on charges including third-degree assault and endangering the welfare of a child, and a criminal court order of
protection was issued prohibiting Johnson from contacting his stepdaughter. Shortly afterwards, based on these accusations, a
neglect petition was filed in Family Court, and a separate Family Court order of protection issued against Johnson. The Family
Court order of protection was reissued on November 14, 2019, and was valid through February 24, 2020. Johnson contends
that the criminal court order of protection expired when his criminal case was dismissed on November 25, 2019, after which he
was informed by his attorneys that there was no longer an active order of protection against him; the attorneys were incorrect,
however, as the Family Court order remained in effect.
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Johnson was arrested twice for violating the Family Court order of protection. The first arrest occurred on November 25, 2019,
only a few hours after his criminal case was dismissed, when he was arrested at home for violating the order of protection.
Johnson claimed that the police were shown, and relied on, the Family Court order of protection, which Johnson has variously
claimed he was not aware of or that it expired November 14, 2019. Johnson was arrested the second time for violating the
Family Court order of protection on February 12, 2020, after attempting to pick up his youngest child at school. Eventually, all
the charges stemming from the various arrests were dismissed, and the neglect petition filed in Family Court was withdrawn.
As to the claims against Bronx Care, Johnson contends that, following the arrest of his wife for child neglect on February 7,
2020, his children were taken to Bronx Care and, without Johnson's permission and over his objections, were examined by
hospital staff in what Johnson describes as an invasive manner.
Johnson sued the City of New York, the Commissioner of the New York City Administration for Children's Services (“ACS”),
ACS employees, and individual police officers (the “City defendants”) for, as relevant here, false arrest and malicious
prosecution under 42 U.S.C. § 1983. Johnson also sued Bronx Care for violating his and his minor children's Fourth Amendment
and due process rights. After permitting three amendments to Johnson's original complaint, the district court granted the
defendants’ motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). 1 Johnson appealed.
1 Johnson's state law claims were dismissed without prejudice.
*2 As an initial matter, and despite Bronx Care's argument to the contrary, this Court has jurisdiction to hear all parts of this
case. Bronx Care contends that Johnson's notice of appeal was defective in part because it failed to identify the earlier, nonfinal
order dismissing Johnson's claims against Bronx Care. However, Johnson's notice of appeal did identify the district court's final
order (doc. 97), which Johnson correctly described as the decision dismissing the remaining defendants and the case. So long
as it identifies a final order or judgment, a notice of appeal is limited to certain specified orders only if the appellant “expressly
stat[es]” that he intends for it to be so limited. Fed. R. App. P. 3(c)(5)(A), (6). Because Johnson's notice contained no express
language limiting its reach, we have appellate jurisdiction over nonfinal orders, like the one pertaining to Bronx Care, that
merged into and became appealable upon entry of final judgment. See Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 144 (2d Cir. 2013).
This Court “review[s] the grant of a motion to dismiss de novo, accepting as true all factual claims in the complaint and drawing
all reasonable inferences in the plaintiff's favor.” Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013). 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) (internal quotation marks and citation omitted).
On appeal, Johnson raises three arguments: (1) under Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), he had standing
to bring claims against Bronx Care on behalf of his children; (2) there was no probable cause to arrest and prosecute him and
thus that he stated both malicious prosecution and false arrest claims; and (3) that the cases against him terminated in his favor.
We address each in turn.
Beginning with the claims against Bronx Care, Johnson is correct that he retains a “constitutionally protected liberty interest in
the care, custody and management of [his] children.” Tenenbaum, 193 F.3d at 593. But, as the district court determined, it is a
“well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court
on behalf of his or her child,” with certain exceptions not relevant here. Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284
(2d Cir. 2005). Because Johnson is not an attorney, he could not assert violations of his children's constitutional rights against
Bronx Care. The district court properly dismissed these claims without prejudice. See Berrios v. N.Y.C. House. Auth., 564 F.3d
130, 134 (2d Cir. 2009) (reasoning that court may not “make a merits determination of claims filed on behalf of a minor or
incompetent person who is not properly represented”).
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Johnson's claims that Bronx Care violated his own constitutional due process rights are not sufficiently pleaded. Johnson merely
asserted that Bronx Care created an unconstitutional policy of interviewing and examining children without parental consent. But
Johnson did not plead any facts in support of this claim, and legal conclusions alone do not suffice to state a valid constitutional
claim. See Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82 (2d Cir. 2022).
Next, against the City defendants, Johnson alleged false arrest and malicious prosecution, for both the criminal proceedings
against him as well as the neglect petition filed against him in Family Court. We assume, without deciding, that a malicious
prosecution claim can be premised on a neglect petition.
“Probable cause is a complete defense to a constitutional claim for false arrest,” and “continuing probable cause is a complete
defense” to a tort claim for malicious prosecution. Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). “Probable cause exists
when one has knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant
a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Id.
(internal quotation marks omitted). “The probable cause standard in the malicious prosecution context is slightly higher than the
standard for false arrest cases” and requires “such facts and circumstances as would lead a reasonably prudent person to believe
the plaintiff guilty.” Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013) (internal quotation marks omitted). “[P]robable cause
must be shown as to each crime charged in the underlying criminal action.” Kee v. City of New York, 12 F.4th 150, 166 (2d
Cir. 2021).
*3 Johnson argues that his November 2019 and February 2020 arrests were unsupported by probable cause, but we do not
agree. 2 Johnson claimed that the November 2019 arrest was unsupported by probable cause because the police relied on either
an order of protection he had never received or on an expired version of the Family Court order. There is no dispute, however,
that the Family Court order was actually in effect and an arrest premised on it would be valid even if the officers were shown
an older, expired copy of the order at some point prior to the arrest. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)
(“Probable cause requires an officer to have knowledge or reasonably trustworthy information sufficient to warrant a person
of reasonable caution in the belief that an offense has been committed by the person to be arrested.... [P]robable cause does
not require absolute certainty.” (internal quotation marks and citations omitted)). Moreover, the ACS employee's report to the
police of Johnson's violation of the order of protection could support a valid determination of probable cause so long as there
was no reason to doubt her veracity. See id. Regarding the February 2020 arrest, he claimed that school officials falsely reported
to police that he was in violation of the Family Court order of protection. Again, however, Johnson did not dispute that the
Family Court order was still in effect, and the reports of the school officials, even if later determined to be false, could support
a valid determination of probable cause so long as there was no reason to doubt the officials’ veracity. See id.
2 To the extent Johnson now argues that the officers lacked probable cause for the initial August 2019 arrest, the allegations
as pleaded fail to make out a lack of probable cause. According to Johnson's own complaint, his stepdaughter filed a
police report alleging Johnson physically harmed her. This was sufficient to support the arrest. See Curley v. Village of
Suffern, 268 F.3d 65, 70 (2d Cir. 2001).
Claims for malicious prosecution require a plaintiff to allege, on top of lack of probable cause, “that the proceeding was instituted
with malice.” Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (internal quotation marks omitted). Johnson has not
pleaded that any of the defendants acted with malice when instituting the criminal or neglect proceedings. Thus, the district court
correctly dismissed Johnson's § 1983 malicious prosecution claims. Because Johnson failed to plead two necessary elements
for the malicious prosecution claim—actual malice and lack of probable cause—we need not reach his arguments regarding
favorable termination.
We have considered Johnson's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment
of the district court.
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Johnson v. City of New York, Not Reported in Fed. Rptr. (2023)
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All Citations
Not Reported in Fed. Rptr., 2023 WL 3607219
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