# McCluskey v. Roberts

> District Court, E.D. New York · November 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10305125

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------x
PETER McCLUSKEY,
Plaintiff,
MEMORANDUM AND ORDER
- against - 19-CV-2386 (RRM) (ARL)

SAMUEL D. ROBERTS, New York State Commissioner
of the Office of Temporary and Disability Assistance, acting
in his individual capacity, and DARLA P. OTO, Principal
Hearing Officer of the Office of Temporary and Disability
Assistance, acting in her individual capacity,

Defendants.
----------------------------------------------------------------------x
ROSLYNN R. MAUSKOPF, Chief United States District Judge.
This is at least the second civil rights action brought by pro se plaintiff Peter McCluskey
against Samuel Roberts, the Commissioner of the New York State Office of Temporary and
Disability Assistance (“OTDA”), and Darla P. Oto, the Principal Hearing Officer at OTDA, in
which McCluskey complains about their actions in affirming a 2017 decision by the Nassau
County Department of Social Services (“Nassau DSS”) that refused to take into consideration
McCluskey’s unincurred dental expenses in calculating his income and his SNAP benefits
(formerly known as food stamps). In a Memorandum and Order dated May 18, 2020, the Court
granted Defendants’ motion to dismiss this action, holding 1) that this action was barred by res
judicata, 2) that the complaint failed to allege personal involvement on the part of Roberts or a
violation of McCluskey’s federal constitutional or statutory rights, and 3) that Oto enjoyed
absolute judicial immunity. McCluskey now moves to alter or amend the judgment against him
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure on several grounds. For the
reasons set forth below, that motion is denied.
BACKGROUND
Although this Memorandum and Order assumes familiarity with this action and with the
two prior actions which McCluskey has brought with respect to the calculation of his SNAP
benefits, the Court will recap McCluskey’s litigation history for the reader’s convenience.

McCluskey is an elderly resident of Nassau County, who has been receiving food stamps since
2005. Defendant Roberts is the Commissioner of the Office of Temporary and Disability
Assistance (“OTDA”), the state agency charged with overseeing the administration of SNAP
benefits. Defendant Oto is a Public Hearing Officer at OTDA in Albany. Nassau DSS is the
agency responsible for determining SNAP benefit eligibility in Nassau County and Jeanne Ryan
is charged with overseeing the administration of SNAP benefits at Nassau DSS. McCluskey’s
SNAP benefits are reassessed or re-certified every odd-numbered year.
Since 2012, McCluskey has been litigating the issue of whether anticipated medical and
dental expenses which have yet to be incurred should be considered in calculating his income for
benefits purposes. In 2012, before Roberts became Commissioner of OTDA, McCluskey

commenced an action – McCluskey v. Commissioner of Nassau County Department of Social
Services, No. 12-CV-3852 (JFB) (ETB) – against Ryan and the Commissioners of DSS and
OTDA. In September 2013, Judge Bianco dismissed that action, holding, among other things,
that McCluskey’s claims against the OTDA Commissioner in his official capacity were barred
by the Eleventh Amendment and that the claim against the OTDA Commissioner in his personal
capacity failed because the complaint did not allege facts suggesting that the Commissioner was
personally involved in the actions identified in support of McCluskey’s §1983 claim. See
McCluskey v. Comm’r of Nassau Cty. Dep’t of Soc. Servs., No. 12-CV-3852 (JFB) (ETB), 2013
WL 4780954, at *3 (E.D.N.Y. Sept. 5, 2013).
In 2017, McCluskey commenced a second federal action: McCluskey v. Imhof, No. 17-
CV-5873 (JFB) (ARL) (the “2017 Action”). That action named four defendants, including
Roberts in his official capacity as Commissioner of OTDA and Oto in her official capacity as
Principal Hearing Officer. That action principally contested the rejection of McCluskey’s

application for an increase in his SNAP benefits based on anticipated medical and dental
expenses. Among the documents McCluskey submitted in support of that application were
medical bills from his cardiologist and a sworn statement from his dentist, Dr. Berger, attesting
to McCluskey’s anticipated dental expenses. The actual medical expenses documented in the
cardiologist’s bill were accepted by Nassau DSS and reflected in their calculation of
McCluskey’s SNAP benefits. (Id.) However, Nassau DSS refused to consider the anticipated
dental expenses, asserting that anticipated expenses are never included in calculating the SNAP
medical deduction. (Id.)
McCluskey appealed this ruling, requesting a Fair Hearing before the OTDA. On August
4, 2017, he received a Fair Hearing Decision which affirmed Nassau DSS’s ruling. That

decision read, in pertinent part:
Office Regulations at 18 NYCRR 387.12(c) advise that for SNAP
budgeting purposes, deductions from income include that portion
of allowable medical expenses … which are in excess of $35 per
month and incurred. In this case, the undisputed record
demonstrates that the Appellant has not yet incurred the anticipated
dental expenses. Therefore, the Agencies [sic] determination as to
the amount of the deductible medical expenses … is affirmed.

(Compl. at ¶ 8 (emphasis in original)).
In a letter dated August 8, 2017, McCluskey requested that the OTDA Office of
Administrative Hearings (“OAH”) review the Fair Hearing Decision pursuant to 18 NYCRR §
358-6.6(a). (Compl. at ¶ 11.) In that letter, McCluskey argued that the Fair Hearing Decision
was contrary to a provision in 7 C.F.R. § 273.10(d)(4), which requires, among other things, that a
State agency “calculate a household’s expenses based on the expenses the household expects to
be billed for during the certification period.” McCluskey argued that 18 NYCRR § 387.12(c),
which permits deductions “consisting of that portion of medical expenses, excluding special

diets, which are in excess of $35 per month and incurred by a household member who meets the
definition of elderly (age 60 and older) or disabled,” is inconsistent with the federal regulation
and the law on which the regulation is based: 7 U.S.C. § 2014(e)(5)(B).
In a letter dated September 11, 2017, Principal Hearing Officer Oto rejected McCluskey’s
request for OAH review, stating that OAH “found no basis to establish that the Decision is
incorrect.” (Id. at ¶¶ 13–14.) She did not address McCluskey’s arguments but maintained that
the anticipated expenses could not be considered because they were “just estimates.” (Id.)
On September 15, 2017, McCluskey sent a letter to OTDA Commissioner Roberts,
arguing that the Fair Hearing Decision and 18 NYCRR § 387.12 were both contrary to 7 U.S.C.
§ 2014(e)(5)(B). (Compl. at ¶ 19.) In his letter, McCluskey cited to McCluskey v. Nassau Cty.

Comm’r of Soc. Servs., 12-CV-3852 (JFB) (ETB), as evidence that DSS had been engaged in this
same “illegal practice” since 2012 and argued that OTDA had perpetuated the illegality by
affirming DSS decision based on 18 NYCRR § 387.12.
In early October 2017, having received no response to his letter, McCluskey commenced
the 2017 Action against John Imhof, who was then Commissioner of Nassau DSS; Ryan;
Roberts; and Oto. After McCluskey amended his complaint, Roberts and Oto moved to dismiss
the action and that motion was referred to Magistrate Judge Lindsay. On August 27, 2018, Judge
Lindsay issued a report and recommendation (“R&R”), which noted: “The arguments set forth
in the 2012 lawsuit essentially mirror the allegations in the current Amended Complaint.”
McCluskey v. Imhof, No. 17-CV-5873 (JFB) (ARL), 2018 WL 5077169, at *3 (E.D.N.Y. Aug.
27, 2018). The R&R did not rely on res judicata but recommended dismissing the claims against
Roberts on Eleventh Amendment grounds. Id. at *4–*5. Magistrate Judge Lindsay
recommended dismissing the action against Oto for failure to state a § 1983 cause of action,

noting, “the conduct attributable to Oto does not establish that she deprived him of a federal
right.” Id. at *6. Although McCluskey objected to the R&R, Judge Bianco adopted the R&R in
its entirety and directed the entry of judgment against McCluskey. McCluskey v. Imhof, No. 17-
CV-5873 (JFB) (ARL), 2018 WL 4521207 (E.D.N.Y. Sept. 21, 2018).
In October 2018, McCluskey moved to alter or amend that judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure and to file a supplemental pleading pursuant Rule
15(d). The latter motion sought to add allegations relating to Nassau DSS’s failure to take
anticipated medical expenses into account during the 2019 recertification process. In particular,
McCluskey proposed allegations faulting the DSS’s recertification form (the LDSS-4826) for
requiring medical bills and failing to allow applicant’s to claim anticipated medical expenses.

(Proposed Supplementary Addition to Amended Complaint (Doc. No. 62-l in No. 17-CV-5873)
at 20.)1 Since McCluskey’s Rule 59(e) motion was denied, McCluskey v. Imhof, No. 17-CV-
5873 (RRM) (ARL), 2019 WL 4861372, at *1 (E.D.N.Y. Sept. 30, 2019), the Court did not
address the motion to file a supplementary complaint.
This Action
In April 2019, a few months before McCluskey’s Rule 59(e) motion was denied,
McCluskey filed this § 1983 action against Roberts and Oto. Although the caption of the
complaint alleged that these defendant were being sued in their individual capacities, the ad

1 Page numbers refer to the numbers assigned by the Court’s Electronic Case Filing system.
damnum clause requested an injunction directing the defendants to “provide all assistance lost to
plaintiff as a result of defendants’ actions” and “to ensure a proper determination of the medical
expense deduction for food stamps to elderly applicants.” (Compl. (Doc. No. 1) at 9.)
The complaint in this case alleged three causes of action. The first asserted that

defendants violated the Supremacy Clause by applying 18 NYCRR § 387.12(c) to deny
consideration of anticipated medical expenses, even though this state regulation was in violation
of 7 U.S.C. § 2014(e)(5)(B) and 7 C.F.R. § 273.10(d)(4). The second alleged that defendants
knowingly violated 7 U.S.C. § 2014(e)(5)(B)(ii), 7 C.F.R. § 273.10(d)(4)(III), and 7 U.S.C. §
2020(e) in 2012, 2017, and 2019 by refusing to consider medical expenses until they were
incurred and by mandating submission of recertification forms which did not include any
provision for anticipated medical expenses. The third cause of action alleged that defendants
violated their obligations under New York Social Services Law 22 by “knowingly affirming the
application of 18 NYCRR § 387.12(c).”
Defendants moved to dismiss this action, principally arguing that this action is barred by

the doctrines of res judicata and/or collateral estoppel. Defendants also argued, among other
things, that McCluskey had not alleged a viable section 1983 claim against either defendant.
In a Memorandum and Order dated May 18, 2020 (the “Prior Order”), the Court granted
defendants’ motion to dismiss. First, the Court held that defendants had made out the elements
of a res judicata defense as set forth in TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499
(2d Cir. 2014), because McCluskey’s 2017 Action was adjudicated on the merits as to Roberts
and Oto, the 2017 Action was brought by the exact same plaintiff, and the claims asserted in this
action could have been raised in the 2017 Action. (Prior Order (Doc. No. 26) at 8.) In
addressing the second element, the Court stated:
Although McCluskey’s complaint in this case alleges that “the individual capacity
defendants in this action are not in privity with the official capacity defendants in
the 2017 [A]ction,” (Compl. at ¶ 39), the second element does not require that
defendants establish that they were the same as, or in privity with, the defendants
in the prior action. Rather, it requires that the plaintiffs in both actions be the
same.

(Id.) In discussing the third element, the Court noted that although the 2017 Action named
Roberts and Oto in their official capacities and the instant action purported to name them in their
individual capacities, both cases involved the same transaction or series of transactions. (Id. at
9.)
The Court also dismissed the personal liability claims against Roberts and Oto for other
reasons. The Court held that McCluskey’s complaint did not state a § 1983 claim against
Roberts because it did not allege personal involvement by the Commissioner of OTDA, much
less his involvement in a violation of McCluskey’s federal constitutional or statutory rights. (Id.
at 10–11.) The Court held that Oto, as an OTDA hearing officer, was absolutely immune from
claims for money damages. (Id.)
The Instant Motion
McCluskey now moves pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to
alter or amend the judgment dismissing his case. Read liberally, his 59(e) Motion to Amend
Judgment and Order (the “Motion”) raises five arguments. First, McCluskey argues that res
judicata does not bar his second cause of action because it relies in part on events that occurred
after the 2017 Action was commenced. (Motion (Doc. No. 28-1) at 1–2.) Second, McCluskey
implies that the Court overlooked his argument that res judicata does not apply to the instant case
because Roberts and Oto were named in their individual capacities in this action but were named
in their official capacities in the 2017 Action. (Id. at 2.) Third, quoting portions of the complaint
and the report and recommendation in the 2017 Action and noting that the post-judgment motion
to supplement his pleading in that action was never adjudicated, McCluskey claims he has
alleged federal constitutional and statutory claims in support of his § 1983 claims: namely, a due
process claim and a federal statutory claim for violating the time limits set forth in 7 U.S.C. §
2020(e)(3) and (9). (Motion at 2–3.) Fourth, McCluskey cites to Briggs v. Bremby, 792 F.3d

239 (2d Cir. 2015), for the proposition that the Second Circuit does not require a showing of
personal involvement on the part of Commissioners in cases such as this. (Motion at 3.)
Finally, citing to Earle v. Benoit, 850 F.2d 836 (1st Cir. 1988), and Nesmith v. Alford, 318 F.2d
110 (5th Cir. 1963), McCluskey argues that the Court overlooked allegations that Oto engaged in
a corrupt conspiracy with attorneys representing his adversaries. (Motion at 4 (citing Compl. ¶¶
36–37).)
STANDARD OF REVIEW
Rule 59(e), which allows a litigant to file a “motion to alter or amend a judgment” within
28 days of the entry of judgment, “enables a party to request that a district court reconsider a
just-issued judgment.” Banister v. Davis, 140 S. Ct. 1698, 1703 (2020). Although Rule 59(e)

and Rule 60(b), which permits a district to “relieve a party or its legal representative from a final
judgment,” differ in various respects, see Banister, 140 S. Ct. at 1709–11, the standard for Rule
59(e) and Rule 60(b) motions is largely the same. Gomez v. United States, No. 11-CV-6348
(SLT), 2016 WL 4027928, at *2 (E.D.N.Y. July 26, 2016) (citing Maalouf v. Salomon Smith
Barney, Inc., No. 02-CV-4770 (SAS), 2004 WL 2782876, at *1 (S.D.N.Y. Dec. 3, 2004). In
general, “[t]he standard for granting … [reconsideration] is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked – matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“And ‘reconsideration’ means just that: Courts will not entertain arguments that could have been
but were not raised before the just-issued decision.” Banister, 140 S. Ct. at 1708.
DISCUSSION
I. Res Judicata

McCluskey’s first two arguments for reconsideration relate to res judicata, which
“encompasses two significantly different doctrines: claim preclusion and issue preclusion.”
Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 107 (2d Cir. 2015)
(citing Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). “Under the doctrine of … claim
preclusion, ‘[a] final judgment on the merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised in that action.’” St. Pierre v. Dyer,
208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,
398 (1981)). “In determining whether a second suit is barred by this doctrine, the fact that the
first and second suits involved the same parties, similar legal issues, similar facts, or essentially
the same type of wrongful conduct is not dispositive.” Maharaj v. BankAmerica Corp., 128 F.3d

94, 97 (2d Cir.1997). “Rather, the first judgment will preclude a second suit only when it
involves the same ‘transaction’ or connected series of transactions as the earlier suit ….” Id.
“[A]s a matter of logic, when the second action concerns a transaction occurring after the
commencement of the prior litigation, claim preclusion generally does not come into play.”
Legnani v. Alitalia Linee Aeree Italiane, S.p.A., 400 F.3d 139, 141 (2d Cir. 2005) (quoting
Maharaj, 128 F.3d at 97). “When a subsequent action involves a claim over ‘ongoing conduct'
and it relies on facts that occurred both before and after the earlier action commenced, claim
preclusion will not bar a suit … ‘based upon legally significant acts occurring after the filing of a
prior suit that was itself based upon earlier acts.’” TechnoMarine SA v. Giftports, Inc., 758 F.3d
493, 501 (2d Cir. 2014) (quoting Waldman v. Village of Kiryas Joel, 207 F.3d 105, 113 (2d Cir.
2000)). However, “claim preclusion may apply where some of the facts on which a subsequent
action is based post-date the first action but do not amount to a new claim.” Id. (quoting Storey
v. Cello Holdings, L.L.C., 347 F.3d 370, 384 (2d Cir. 2003)).

In his Rule 59(e) motion, McCluskey first argues that his second cause of action is a
“new claim” because it relies, in part, on events that occurred in 2019, after the commencement
of the 2017 Action. The essence of that cause of action, however, is that since 2012, defendants
have continued their practice of refusing to consider anticipated medical expenses and of using
the same, allegedly defective recertification form which does not allow for the reporting of
anticipated medical expenses. As a result, McCluskey has been “required … to report medical
expenses as they occur in the certification period in the years 2012, 2017, and 2019,” and has
been unable to include anticipated medical expenses in the recertification form he filed in 2012,
2017, and 2019. (Compl. at 8.) That cause of action is not based on legally significant acts
which occurred in 2019 but complains of a longstanding practice. As such, it does not constitute

a “new claim.”
In his second argument, McCluskey claims the Court overlooked his argument that the
defendants in this action differ from the defendants in the 2017 Action because he purportedly
sued them in their official capacities in 2017 and is ostensibly suing them in their individual
capacities now. McClusky claims that the Prior Order “contended that res judicata ‘does not
require that defendants establish that they were the same as, or in privity with, the defendants in
the prior action.’” (Motion at 2 (emphasis added).) This claim is inaccurate. In addressing the
second of three elements which a defendant must prove in order to establish the affirmative
defense of res judicata, the Prior Order stated: “the second element does not require that
defendants establish that they were the same as, or in privity with, the defendants in the prior
action. Rather, it requires that the plaintiffs in both actions be the same.” (Prior Order at 10
(emphasis added)).
The Court addressed the argument McCluskey claims it overlooked in its discussion of

the third element of the TechnoMarine standard. The Court stated:
In this action, McCluskey sues Roberts and Oto in their individual capacities,
alleging that these defendants violated the Supremacy Clause by applying
provisions of 18 NYCRR § 387.12(c) and ignoring the provisions of 7 U.S.C. §§
2014(e)(5)(B)(ii), 2014(e)(5)(B)(iii), and 2020(e). In the 2017 Action,
McCluskey sued Roberts and Oto (along with DSS Commissioner Imhof and DSS
Snap Director Ryan) in their official capacities, alleging that they followed
unlawful customs, policies, and practices in denying McCluskey benefits to which
he was entitled.
It is beyond dispute, however, that both this action and the 2017 Action focused
on the same transaction or series of transactions: the DSS’s decision not to
consider the anticipated medical expenses described in Dr. Berger’s affidavit,
Principal Hearing Officer Oto’s affirmance of that decision, and OTDA
Commissioner Roberts refusal to take any action in response to McCluskey’s
letter alerting him to DSS’s allegedly illegal practice. The facts alleged by
McCluskey in support of the 2017 Action were, in large part, identical to the facts
alleged in support of the instant action, so the same evidence would be needed to
support both claims. Finally, the facts essential to the instant action were also
present in the 2017 Action.

Prior Order at 11.
Since the Court rationale for rejecting McCluskey’s argument was not clear to
McCluskey, the Court will clarify it. The Amended Complaint in the 2017 Action specifically
alleged that the lawsuit was against Roberts and Oto in their official capacities. (Am. Compl.
(Doc. No. 27 in No. 17-CV-5873) at ¶ 8.) Yet, the ad damnum clause in that case sought money
damages – relief which would be unavailable if defendants were sued solely in their official
capacities. Similarly, although the caption of the complaint in this action states that McCluskey
is suing Roberts and Oto in their individual capacities, those defendants would have to act in
their official capacities to grant the injunctive relief requested in this action. Accordingly,
defendants in this case are sued, at least in part, in their official capacities. See Restatement
(Second) of Judgments § 36, cmt. e (1982) (“A public official sued as an individual nevertheless
participates in the action in his official capacity if the remedy sought is that of compelling,

restraining, or making declarations concerning performance of acts in the course of his official
duties ….”)
The Court is aware that several Circuits have held that a defendant sued in his official
capacity is not in privity with himself in his individual capacity. See, e.g., Andrews v. Daw, 201
F.3d 521, 526 (4th Cir. 2000) (“[A] government official in his official capacity is not in privity
with himself in his individual capacity for purposes of res judicata.”); Howell Hydrocarbons, Inc.
v. Adams, 897 F.2d 183, 188 (5th Cir. 1990) (“Res judicata does not apply when the parties
appear in one action in a representative capacity and in a subsequent action in an individual
capacity.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[L]itigation involving
officials in their official capacity does not preclude relitigation in their personal capacity.”)

However, McCluskey cannot defeat res judicata through the artifice of claiming to sue
defendants in their official capacity in one suit and claiming to sue them in their individual
capacity in the next. The purpose of res judicata and collateral estoppel is “to protect ‘litigants
from the burden of relitigating an identical issue with the same party or his privy and [to
promote] judicial economy by preventing needless litigation.’” Irish Lesbian & Gay Org. v.
Giuliani, 143 F.3d 638, 644 (2d Cir. 1998) (quoting Parklane Hosiery Co. v. Shore, 439 U.S.
322, 326 (1979)). “The threshold requirement of identity of parties, qualified by the doctrine of
privity, finds its roots in the ancient notion, now supplemented by the due process clause, that a
person cannot be bound by a judgment without notice of a claim and an opportunity to be heard.”
Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir. 1977). “Whether such identity is
evident is a factual determination of substance, not mere form.” Id. (citing Astron Industrial
Associates, Inc. v. Chrysler Motor Corp., 405 F.2d 958, 961 (5th Cir. 1968); Aerojet General
Corp. v. Aske, 511 F.2d 710, 719 (5th Cir.), cert. denied, 423 U.S. 908 (1975)). Allowing

McCluskey to relitigate his claims against defendants in this action by purporting to sue them
exclusively in their individual capacities would exalt form over substance and deprive defendants
of the protection afforded by the doctrine of claim preclusion.
II. The § 1983 Claim against Roberts
McCluskey’s next two arguments relate to the dismissal of his § 1983 claims against
Roberts in his individual capacity. “To state a claim under § 1983, a plaintiff must allege two
elements: (1) ‘the violation of a right secured by the Constitution and laws of the United States,’
and (2) ‘the alleged deprivation was committed by a person acting under color of state law.’”
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (quoting Feingold
v. New York, 366 F.3d 138, 159 (2d Cir. 2004)). In addition, “[i]t is well settled in this Circuit

that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.’” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). “[P]ersonal involvement for these
purposes … mean[s] direct participation, or failure to remedy the alleged wrong after learning of
it, or creation of a policy or custom under which unconstitutional practices occurred, or gross
negligence in managing subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
“Conclusory accusations regarding a defendant’s personal involvement in the alleged violation,
standing alone, are not sufficient, and supervisors cannot be held liable based solely on the
alleged misconduct of their subordinates.” Kee v. Hasty, No. 01-CV-2123 (KMW) (DF), 2004
WL 807071, at *12 (S.D.N.Y. Apr. 14, 2004) (internal citations omitted).
In seeking reconsideration of the Court’s decision to dismiss his claims against
Commissioner Roberts, McCluskey argues that the Court overlooked the implications of Briggs

v. Bremby, 792 F.3d 239 (2d Cir. 2015). Briggs involved a class action, brought by an applicant
for food stamp benefits against the Commissioner Bremby of the Connecticut Department of
Social Services in his official capacity, to enforce the statutory time limits for awarding SNAP
benefits which are set forth in 7 U.S.C. § 2020(e)(3) and (9). The district court entered a
preliminary injunction requiring the DSS to process food stamp applications within the statutory
deadlines. Briggs v. Bremby, 2012 WL 6026167 at *18–*19 (D. Conn. Dec. 4, 2012). The
Second Circuit affirmed, holding that the time limits for allocating food stamps provided in 7
U.S.C. § 2020(e)(3) and (9) are privately enforceable through § 1983 actions and that federal
regulations did not excuse DSS from complying with the time limit provisions. Briggs, 792 F.3d
at 245–46.

Briggs is utterly irrelevant to the question of whether McCluskey has alleged a cause of
action against Roberts. Roberts is Commissioner of OTDA, not the Nassau County DSS.
Roberts is purportedly sued in his individual capacity in this case; Bremby was sued in his
official capacity as the Commissioner of the agency responsible for processing Briggs’ SNAP
applications. Although McCluskey contends that Briggs did not require personal involvement on
the part of a Commissioner, Bremby’s personal involvement was not at issue in Briggs.
Moreover, nothing in Briggs is relevant to the case-specific question of whether McCluskey has
adequately alleged the personal involvement of Roberts in this action.
McCluskey’s claim that he was alleging a violation of the time limits set forth in 7 U.S.C.
§ 2020(e)(3) and (9) is also unavailing. In arguing that the Court overlooked allegations that
defendants did not timely adjudicate his eligibility for SNAP benefits, McCluskey quotes the
report and recommendation in No. 17-CV-5873, which cited allegations in the complaint in that

case. McCluskey did not repeat those allegations in this case, or otherwise suggest that he was
contesting the timeliness of the DSS’s determination of his benefits. Similarly, the complaint in
this action does not allege facts suggesting a due process violation. Moreover, even if the
complaint could be read as alleging a timeliness or due process claim, there is nothing to suggest
that Roberts, as Commissioner of OTDA, was personally involved in DSS’s alleged wrongdoing.
III. Judicial Immunity
McCluskey’s final argument – which seeks reconsideration of the Court’s determination
that Oto enjoys absolute immunity from a suit for money damages – misapprehends the scope of
judicial immunity. McCluskey argues that the Court overlooked allegations that Oto engaged in
a corrupt conspiracy with attorneys representing his adversaries. (Motion at 4 (citing Compl. ¶¶

36–37).) Even if paragraphs 36 and 37 of the complaint – which contain only vague conclusory
allegations – could be read as alleging Oto’s involvement in a corrupt conspiracy, those
allegations would be insufficient to defeat immunity. The judicial immunity doctrine “protects
judges from civil actions even when they perform judicial acts in excess of their authority, even
when such acts are allegedly done maliciously or corruptly.” Maestri v. Jutkofsky, 860 F.2d 50,
52 (2d Cir. 1988) (quoting Stump v. Sparkman, 435 U.S. 349, 355–56 (1978)). Indeed, unless
the judge’s actions are “not taken in the judge’s judicial capacity” or are “taken in the complete
absence of all jurisdiction,” the judge is absolutely immune from suit, not just from ultimate
assessment of damages. Mireles v. Waco, 502 U.S. 9, 11 (1991). Since McCluskey does not
suggest that Oto was not acting in her judicial capacity or that her action were taken in the
complete absence of jurisdiction, Oto is immune from suit.
The two cases cited by McCluskey – Earle v. Benoit, 850 F.2d 836 (1st Cir. 1988), and
Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) – are inapposite. Those actions alleged

conspiracies to violate civil rights by police defendants. They did not name any jurists as
defendants and did not raise questions of judicial immunity.
CONCLUSION
For the reasons set forth above, the motion to alter or amend the judgment in this case is
denied. The Clerk of Court is directed to mail a copy of this Memorandum and Order to
McCluskey and to note that mailing on the docket sheet. Although the Court notes that
McCluskey paid the fee to bring this action, he has proceeded in forma pauperis in prior actions.
Accordingly, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore in forma pauperis status
is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.
Dated: Brooklyn, New York Roslynn R. Mauskopf
November 3, 2020
_______________________________
ROSLYNN R. MAUSKOPF
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305125. Public record. Not legal advice.