# Edelman v. United States Government

> District Court, E.D. New York · July 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10308121

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308121

## How later opinions describe it (automated extraction)

- noting that “district courts are especially likely to be exposed to frivolous actions, and thus have an even greater need for inherent authority to dismiss such actions quickly in order to preserve scarce judicial resources”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
GARY EDELMAN,

Plaintiff,
MEMORANDUM & ORDER
18-CV-2143(JS)(SIL)
-against-

UNITED STATES GOVERNMENT;
DEPARTMENT OF EDUCATION;
BETSY DEVOS; NAVIENT SOLUTIONS;
STRADLEY RONON STEVENS & YOUNG;
GERARD DONOVAN; JOYCE DEMOSS;
THADDEUS BARTKOWIAK; DAWN SCANIFFE;
ANGELICA KAMIONKA; EMILY POLLACK;
JOCYLINE (LAST NAME UNKNOWN);
DONNA SOLES; ERIC HURWITZ; FRANCIS
MANNING (ALIAS: FRANNY); NEW YORK
HIGHER EDUCATION; THOMAS BRENNAN;
ALEX RODRIGUEZ; NICOLETTE PIRRONE;
DEPARTMENT OF JUSTICE; ROBERT
SHUMACHER, II; VAUGHN BOND;
ROY MAHON; and JOANNA SEYBERT,

Defendants.
----------------------------------x
APPEARANCES:
For Plaintiff: Gary Edelman, pro se
1715 Union Avenue
Hewlett, New York 11557

For Defendants:
United States of America,
Department of Education,
and Betsy DeVos: Richard W. Schumacher II, Esq.
James H. Knapp, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, New York 11722

Navient Solutions, LLC,
Stradley Ronon Stevens
& Young, LLP, and
Gerard Donovan: Francis X. Manning, Esq.
Stradley Ronon Stevens & Young, LLP
457 Haddonfield Road, Suite 100
Cherry Hill, New Jersey 08002

Joyce Demoss, Thaddeus
Bartkowiak, Dawn
Scaniffe, Angelica
Kamionka, Emily Pollack,
Joycyline (last name
unknown), Donna Soles,
Eric Hurwitz, Francis
Manning (alias: Franny),
New York Higher Education,
Thomas Brennan, Alex
Rodriguez, Nicolette
Pirrone, Department of
Justice, Robert Schumacher
II, Vaughn Bond, Roy Mahon,
Joanna Seybert: No Appearances.

SEYBERT, District Judge:
Before the Court is the Third Amended Complaint filed
pro se by plaintiff Gary Edelman (“Plaintiff” or “Edelman”). For
the reasons that follow, the Third Amended Complaint (“TAC”) is
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). The Clerk of the
Court shall enter JUDGMENT and mark this case CLOSED.
BACKGROUND
The Court assumes familiarity with the background of
this case.
I. Procedural History
The Court recites only those portions of the procedural
history relevant to review of Plaintiff’s TAC. On December 4,
2020, this Court issued an order granting the respective motions
to dismiss filed by the United States Government (the
“Government”), the United States Department of Education (“DOE”),
Betsy Devos, in her official capacity as Secretary of Education
(“Devos” and together with the United States and DOE, the “Federal

Defendants”), Gerard Donovan (“Donovan”), Stradley Ronon Stevens
& Young, LLP (“SRSY”), and Navient Solutions, LLC. (“Navient” and
together with Donovan and SRSY, the “Non-Federal Defendants”;
collectively with the Federal Defendants, the “Defendants”) and
dismissing Plaintiff’s Second Amended Complaint (“SAC”). (See
Order at 56, ECF No. 65.) The Court further granted Plaintiff
leave to file a TAC within thirty (30) days from the date of the
December 4, 2020 Memorandum & Order, i.e., on or before January 4,
2021. (Id. at 55.)
Upon Plaintiff’s request, the Court extended the
deadline to file the TAC through April 6, 2021. (See Jan. 4, 2021
Ltr., ECF No. 67; Jan. 6, 2021 Elec. Order.) After the April 6,

2021 deadline for Plaintiff to file his TAC passed without
Plaintiff exercising his right to amend, the Court became aware of
a document, date stamped June 13, 2021, that was apparently filed
by Plaintiff in the Clerk’s Office for the Eastern District of New
York, Brooklyn. (See June 13, 2021 Submission, ECF No. 73.) That
document indicated, on the first page of the submission, that
Plaintiff “[a]ttached [h]is Amended Complaint 3.” (Id. at 1.) As
far as the Court could discern, no amended complaint had been filed
with the submission. Accordingly, by Order dated December 15,
2021, Plaintiff was afforded a final thirty (30) days, or by
January 14, 2022, to “date, sign, file and serve the third amended
complaint he supposedly filed with his June 13, 2021 submission.”

(Dec. 15, 2021 Order, ECF No. 74.) On January 14, 2022, Plaintiff
timely filed his TAC. (TAC, ECF No. 75.)
II. The Court’s December 4, 2020 Order
Given that “Plaintiff [wa]s granted leave to amend his
SAC in accordance with this Memorandum and Order,” the Court
summarizes that fifty-seven-page Memorandum and Order as is
relevant to the present matter. (Order at 55.)
All Defendants had moved to dismiss the SAC, which
purported to allege numerous claims against the Non-Federal
Defendants related to the servicing of Plaintiff’s federal student
loans, as well as a claim that the Federal Defendants colluded
with the Non-Federal Defendants, thereby violating federal and

state law. (Id. at 2.) More specifically, the Federal Defendants
moved to dismiss the SAC pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(1) for lack of subject matter
jurisdiction, or, in the alternative, pursuant to Rule 12(b)(6)
for failure to state a claim upon which relief can be granted, and
the Non-Federal Defendants’ moved to dismiss pursuant to Rule
12(b)(6).
The Court reviewed the lengthy procedural history
between the parties, including the prior proceeding commenced in
2016 in the Nassau County Supreme Court involving Plaintiff and
SRSY, on behalf of Donovan, an employee of Navient, alleging
harassment due to Plaintiff’s voluminous phone calls and internet

postings regarding Donovan. (See State Compl. dated Apr. 25, 2016,
ECF No. 58-2, Ex. A, attached to Decl. of Francis X. Manning.)
Edelman filed counterclaims against Donovan alleging harassment
and interference with his ability to have his loans serviced. (Pl.
Countercls., Ex. B.) On September 14, 2016, those counterclaims
were dismissed with prejudice. (Sept. 14, 2016 Dismissal Order,
Ex. C.)
The parties negotiated a settlement as to Donovan’s
claims against Plaintiff memorialized in a consent judgment
entered on August 3, 2017. (Aug. 3, 2017 Consent J., Ex. D.)
Pursuant to the consent judgment: (1) Plaintiff agreed to remove
all his internet postings referencing Navient, its employees and

affiliates, including Donovan, and SRSY and its attorneys and
employees (see id. ¶ 2); and (2) Plaintiff was permanently enjoined
from: (a) posting anything on the internet or otherwise publishing
information concerning any of the parties with limited exceptions
(see id. ¶ 3), (b) contacting Donovan in any manner, or harassing,
defaming or threatening him, and from interfering in his employment
relationship with Navient (see id. ¶¶ 4, 5); (c) communicating
with Navient or any person employed by, or affiliated with Navient,
with the limited exception regarding e-mail correspondence to
Navient concerning legitimate inquiries as to any of his student
loans that were being serviced by Navient (see id. ¶ 8); and
(d) calling SRSY or any employees of SRSY (see id. ¶ 7).

Approximately eight months later, on April 11, 2018,
Plaintiff filed a complaint in this Court against the Government
(see Compl., ECF No. 1); on July 3, 2018, he commenced a separate
action against Navient, SRSY and Donovan (see Not. Related Case,
ECF No. 5). On November 14, 2018, among other things, the Court
consolidated Plaintiff’s two federal cases. (Nov. 14, 2018 Elec.
Order.) Plaintiff then filed an amended complaint against all
Defendants on December 12, 2018 (ECF No. 15) and was later
permitted to file a SAC, which Plaintiff filed on June 24, 2019.
(SAC, ECF No. 43.)
The SAC raised thirty-eight counts related to
Plaintiff’s federal student loans, consisting of Federal Family

Education Loans (“FFEL”) and/or direct loans, which he obtained
from the DOE between 2003 and 2011 to pay for his undergraduate
and graduate studies (hereafter, the “Loans”). (SAC 25-32, 98-
99.)1 With two exceptions, the Loans were guaranteed by the DOE.
(SAC 100-01.) The Court carefully and painstakingly considered

1 The SAC was comprised of 264 numbered paragraphs as well as 2035
numbered lines. For clarity, the citations to the SAC are to the
lines as numbered by Plaintiff.
each of Plaintiff’s claims and the Defendants’ arguments as set
forth in their respective motions to dismiss.
A. Claims Dismissed for Lack of Subject Matter Jurisdiction

The doctrine of sovereign immunity shields the United
States, its agencies, and its officers in their official
capacities, from suit, absent a waiver. In the absence of any
allegations suggesting the basis for a waiver of the Federal
Defendants’ sovereign immunity in the SAC, the Court liberally
construed the pro se submission and considered whether immunity
had been waived. (See Order at 15-26.)
Finding no waiver of sovereign immunity with regard to
Plaintiff’s constitutional claims alleging a deprivation of his
Fifth and Fourteenth Amendment rights against DeVos, the Court
dismissed these claims for lack of subject matter jurisdiction.
The Court concluded that “an action against a federal agency or

federal officers in their official capacities is essentially a
suit against the United States,” so “such suits are barred under
the doctrine of sovereign immunity unless such immunity is waived.”
(Id. at 19 (internal quotation marks and citation omitted).)
Similarly, the Court dismissed Plaintiff’s claims under the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq., against
the Federal Defendants for lack of subject matter jurisdiction,
because the FCRA does not contain a clear and unequivocal waiver
of the Government’s sovereign immunity. (Id. at 19-20.)
Likewise, to the extent that the SAC alleged claims
sounding in tort against the Federal Defendants, the Court
dismissed them for lack of subject matter jurisdiction under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq.
(Order at 20-22.) Although the FTCA provides a limited waiver of
sovereign immunity where suit is brought against the United States
based upon torts committed by its officers, “where a tort claim
stems from a breach of contract, the cause of action is ultimately
one arising in contract, and thus is properly within the exclusive
jurisdiction of the Court of Federal Claims to the extent that
damages exceed $10,000.” (Id. at 21 (quoting Awad v. United
States, 301 F.3d 1367, 1372 (Fed. Cir. 2002)). Thus, the Court
found that Plaintiff’s tort claims against the Federal Defendants
for breach of fiduciary duty and intentional infliction of
emotional distress (SAC 1663-713, 1642-59) stem from a contract,

i.e., the master promissory note (the “Note”), and thus are merely
a restatement of Plaintiff’s breach of contract claim. (Order at
22.) Similarly, the Court found that Plaintiff’s intentional
infliction of emotional distress claim against the Federal
Defendants is premised on the DOE’s efforts in having the Loans
serviced. (Id. (citing SAC 1644-48).) Because such allegations
were “inextricably intertwined” with the DOE’s alleged breach of
the loan agreement, and given that both claims sought monetary
damages, which is relief that is generally considered contractual,
the Court found that the FTCA’s limited waiver of sovereign
immunity did not apply. Accordingly, the Court lacked subject
matter jurisdiction to adjudicate Plaintiff’s breach of fiduciary

duty and intentional infliction of emotional distress claims. (Id.
at 23.)
The Court also dismissed Plaintiff’s breach of contract
claims under the Tucker Act, 28 U.S.C. § 1491, et seq., for lack
of subject matter jurisdiction, because the Tucker Act grants
exclusive jurisdiction to the Court of Federal Claims over, inter
alia, “any claim against the United States founded . . . upon any
express or implied contract with the United States” in excess of
$10,000. 28 U.S.C. § 1491(a)(1). (Order at 16.)
Further, the Court found that it lacked subject matter
jurisdiction to adjudicate Plaintiff’s claims against the Federal
Defendants brought pursuant to the Administrative Procedure Act

(“APA”) given that Plaintiff did not allege that he complied with
the applicable regulations governing the procedures for a borrower
seeking to cancel his federal student loans. (Id. at 23-25.)
Notably, in light of Plaintiff’s pro se status, the Court granted
Plaintiff leave to amend his APA claims to address this deficiency
in his pleadings, i.e., the lack of allegations that he followed
the applicable administrative procedures governing the
cancellation of his Loans if, in fact, he followed said procedures.
(Id. at 25.)
B. Claims Dismissed with Prejudice for Failure to State
a Claim for Relief

Plaintiff’s claims brought under 15 U.S.C. § 45(a) of
the Federal Trade Commission Act (the “FTC Act”) were dismissed
with prejudice, because the FTC Act is only subject to enforcement
by the Federal Trade Commission and does not provide for a private
cause of action. See Hourani v. Wells Fargo Bank, N.A., 158 F.
Supp. 3d 142, 148 (E.D.N.Y. 2016) (citing Alfred Dunhill Ltd. v.
Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir. 1974)) (finding
no statutory basis for a private right of action under the FTCA).
Similarly, any claim brought pursuant to the Higher Education Act
of 1965 (“HEA”), 20 U.S.C. § 1070, et seq.,2 failed to state a
claim for relief because the HEA does not provide a private right
of action for student borrowers. (See Order at 17); see also
Wimberly v. U.S. Dep’t of Educ., No. 12-CV-7773, 2013 WL 6123172,
at *2 (S.D.N.Y. Nov. 21, 2013); Nehorai v. U.S. Dep’t of Educ.
Direct Loan, No. 08–CV–920, 2008 WL 1767072 at *1 (E.D.N.Y. Apr.
14, 2008). Accordingly, Plaintiff’s FTC Act claims were dismissed
with prejudice. (Order at 17, 39.)

2 Although Plaintiff raised the HEA for the first time in his
opposition papers (see Pl. Br., ECF No. 62, at 2), the Court
nonetheless considered such claim given his pro se status even
though a plaintiff “cannot amend [his] complaint by asserting new
facts or theories for the first time in opposition to
[d]efendant[’]s motion to dismiss.” K.D. ex rel. Duncan v. White
Plains Sch. Dist., 921 F. Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013).
The Court also dismissed Plaintiff’s claims under the
Consumer Financial Protection Act (“CFPA”), which provides that
“[i]f any person violates a Federal consumer financial law, the

[Consumer Financial Protection Bureau] may . . . commence a civil
action against such person to impose a civil penalty or to seek
all appropriate legal and equitable relief including a permanent
or temporary injunction as permitted by law.” 15 U.S.C. § 5564(a).
Thus, since the CFPA authorizes only the Consumer Financial
Protection Bureau to bring claims under the statute, Plaintiff was
foreclosed from privately maintaining such an action. See Fraser
v. Aames Funding Corp., No. 16-CV-0448, 2017 WL 564727, at *4-5
(E.D.N.Y. Jan. 24, 2017). Accordingly, Plaintiff’s CFPA claims
were dismissed with prejudice. (Order at 18, 29.)
Similarly, Plaintiff’s Freedom of Information Act
(“FOIA”) claims, which exclusively sought monetary damages in the

amount of $15,000 (SAC 2031), were dismissed with prejudice because
“the FOIA does not provide a private right of action for monetary
damages. See Diamond v. FBI, 532 F. Supp. 216, 233 (S.D.N.Y. 1981)
(citing 5 U.S.C. § 552(a)(4)(B)), aff’d sub nom. 707 F.2d 75 (2d
Cir. 1983).” (Order at 26.)
Further, Plaintiff’s Fair Debt Collection Practices Act
(“FDCPA”) claims against Navient were dismissed with prejudice
because Navient is not a debt collector under the statute. (Id.
at 29.) Critically, the Act defines a “debt collector” as a person
“who regularly collects . . . debts owed . . . another” or a person
involved “in any business the principal purpose of which is the
collection of any debts,” 15 U.S.C. § 1692a(6), and explicitly

excludes “any person collecting or attempting to collect any debt
owed or due . . . to the extent such activity . . . concerns a
debt which was not in default at the time it was obtained by such
person.” (Order at 29-30.) Indeed, “[w]hen a loan servicer
obtains an account prior to its default, that loan servicer
operates as a creditor, not a debt collector, for the purposes of
the FDCPA.” Allen v. United Student Aid Funds, Inc., No. 17-CV-
8192, 2018 WL 4680023, at *4 (S.D.N.Y. Sept. 28, 2018),
reconsideration denied, 2019 WL 4686529 (S.D.N.Y. Sept. 26, 2019)
(citation omitted) (finding Navient was not a debt collector under
the FDCPA when it began servicing the plaintiff’s loans prior to
default). Therefore, because Plaintiff had not plausibly alleged

that Navient was a “debt collector” within the meaning of the FDCPA
-- nor could he -- his FDCPA claim was dismissed with prejudice.
(Order at 30.)
Next, the Court dismissed with prejudice Plaintiff’s
claims against Navient for breach of contract, unjust enrichment,
and breach of fiduciary duty. (Id. at 32-33.) The Court explained
that “[d]istrict courts in this Circuit have held that in the
absence of express language in the servicing contract between the
Government and a loan servicer, such contracts do not confer third-
party beneficiary status on borrowers like Plaintiff.” (Id. at 31
(citations omitted).) Thus, Plaintiff’s failure to identify any
language in the servicing contract between the DOE and Navient

evidencing an intent to permit enforcement by borrowers, precluded
his claim that he is anything more than an incidental beneficiary.
As such, Plaintiff’s breach of contract claim against Navient
failed to state a claim and was dismissed with prejudice. (Id. at
32.) Similarly, Plaintiff’s unjust enrichment claim against
Navient was dismissed with prejudice because such claims are a
quasi-contract theory and lie only “in the absence of any
agreement.” (Id. at 32-33 (citations omitted).) Further, because
Plaintiff had not plausibly alleged the existence of a fiduciary
relationship between himself and Navient -- nor could he -- (see
id. at 34-35), his breach of fiduciary duty failed to state a claim
and was thus dismissed with prejudice. (Id. at 35.)

The Court also dismissed Plaintiff’s RICO claims brought
against Navient and SRSY with prejudice for failure to “satisf[y]
the ‘enterprise’ element of a RICO claim.” (Id. at 47.) The Court
found that “there [wa]s no indication, even from a liberal reading
of the SAC, that a valid RICO claim might be plausibly stated.”
(Id. at 44-47 and n.8.) Last, Plaintiff’s negligent infliction of
emotional distress claim alleged against Donovan was dismissed
with prejudice because Plaintiff did not allege -- nor could he -
- that Donovan owed him a duty. (Id. at 53-54 (“The general rule
is that a lender does not owe tort duties to a borrower.” (internal
quotation marks and citation omitted)).)
C. Claims Dismissed Without Prejudice for Failure to
State a Claim

Of the 38 claims set forth in the SAC, all of them were
dismissed either for lack of subject matter jurisdiction or with
prejudice for failure to state a claim for relief with the
exception of the following claims which were dismissed without
prejudice for failure to state a claim for relief as pleaded.
Plaintiff was permitted Plaintiff to re-plead only these claims,
with the exception of his contempt of court claim, in a TAC.
Plaintiff’s claims against Navient brought pursuant to
the FCRA, 15 U.S.C. § § 1681, et seq., and for defamation, as
pleaded in the SAC, did not state a claim. (Order at 27-28.)
Accordingly, these claims were dismissed without prejudice. With
regard to the FCRA claim, Plaintiff had alleged that Navient
provided inaccurate information to credit reporting agencies and
failed to conduct a reasonable investigation of the inaccuracies
after Plaintiff disputed them. (SAC 836-47, 855-67.) However,
pursuant to 15 U.S.C. § 1681s-2(b) (“Section 1681s-2(b)”), a claim
may be stated only if a plaintiff shows that: “(1) the furnisher

[of information] received notice of a credit dispute from a credit
reporting agency, and (2) the furnisher thereafter acted in
willful or negligent noncompliance with the statute.” (Order at
27 (quoting Nguyen v. Ridgewood Sav. Bank, 66 F. Supp. 3d 299, 305
(E.D.N.Y. 2014)). Notably, the furnisher’s duty to investigate as
set forth in Section 1681s-2(b) “is triggered only after a

furnisher of information receives notice from a credit reporting
agency of a consumer’s dispute.” (Id. (quoting Mendy v. JP Morgan
Chase & Co., No. 12-CV-8252, 2014 WL 1224549, at *5 (S.D.N.Y. Mar.
24, 2014).)
In the absence of any allegations that Navient received
notification from a consumer reporting agency regarding the
accuracy of information furnished by Navient, as required by
Section 1681s-2(b), the Court concluded that Plaintiff lacked
standing to bring his FCRA claim. (Id. at 28 (citing Prakash v.
Homecomings Fin., No. 05-CV-2895, 2006 WL 2570900 at *3, 4-5
(E.D.N.Y. Sept. 5, 2006) (“[P]laintiff lacks standing to bring his
claims under the Fair Credit Reporting Act” where “nowhere in the

complaint or opposition to the instant motion does plaintiff allege
that defendant [data furnisher] received notice of the dispute
from a credit reporting agency.”).) Accordingly, Plaintiff’s FCRA
claims against Navient were dismissed without prejudice. (Id. at
29.)
Plaintiff’s defamation claim, which was based on an
October 4, 2017 letter Navient sent to “the loan owner and
regulatory agency [HESC], in response to Plaintiff’s dispute of
the loans” (SAC 1084-85) did not state a claim because the common
law privilege protected the challenged statement. (Id. at 35-36.)
The Court explained:
New York recognizes a qualified “common interest
privilege” when the defamatory statement is made between
persons who share a common interest in the subject
matter. Liberman v. Gelstein, 80 N.Y.2d. 429, 437
(1992). “[A] qualified privilege arises when a person
makes a good-faith, bona fide communication upon a
subject in which he or she has an interest, or a legal,
moral or societal interest to speak, and the
communication is made to a person with a corresponding
interest.” Demas v. Levitsky, 738 N.Y.S.2d 402, 410 (3d
Dep’t 2002) (citation omitted).

(Id. at 36-37.) However, “a plaintiff can overcome the common
interest privilege by alleging that the defamatory statement was
motivated solely by [common law or constitutional] malice.” (Id.
at 37 (quoting Thorsen v. Sons of Norway, 996 F. Supp. 2d 143, 173
(E.D.N.Y. 2014) (emphasis and citation omitted)). In the absence
of any facts which, if proven, would defeat this privilege,
Plaintiff failed to state a plausible defamation claim. (Id. at
39.) Finding Plaintiff’s allegations that Navient’s statement was
“intentional” or “negligent” were wholly conclusory and
unsupported by any factual allegation, the Court dismissed
Plaintiff’s defamations claim without prejudice. (Id. at 38-39.)
The Court also dismissed Plaintiff’s intentional
infliction of emotional distress claims against Navient and SRSY
without prejudice because, as pleaded, he did not state a plausible
claim. (Id. at 41.) As the Court explained:
Even accepting as true Plaintiff’s allegations, Non-
Federal Defendants’ actions fall well short of the
exceedingly high level of conduct typically deemed
sufficient to sustain a claim for intentional infliction
of emotional distress under New York law. See Doe v.
City of New York, 18-CV-670, 2018 WL 3824133, at *11
(E.D.N.Y. August 9, 2018) (finding allegations that
defendants “pressured, bullied, threatened and
intimidated” plaintiff insufficient to satisfy extreme
and outrageous conduct); Fleming v. Hymes-Esposito, No.
12-CV-1154, 2013 WL 1285431 at *9 (S.D.N.Y. March 29,
2013) (finding allegations of defamation, numerous phone
calls, and unauthorized visits to plaintiff’s home
failed to plead extreme and outrageous conduct).

(Id.) Accordingly, in the absence of factual allegations of
conduct that is “extreme” and “outrageous,” the Court dismissed
Plaintiff’s intentional infliction of emotional distress claims
without prejudice. (Id.)
Plaintiff’s fraud claim against Navient and SRSY was
dismissed without prejudice because Plaintiff did not plausibly
allege any of the elements for such claim as required by New York
State law, nor did he comply with Federal Rule of Civil Procedure
9(b)’s particularity requirement. (Id. at 41-44.) Specifically,
fatal to Plaintiff’s fraud claim was the absence of the identity
of “the allegedly fraudulent statements, the speaker of those
statements,” or “when and where the statements were made. (Id. at
43.) Further, “Plaintiff fail[ed] to explain how any of the
alleged statements were fraudulent.” (Id.) Thus, the Court
dismissed Plaintiff’s fraud claim without prejudice. (Id. at 44.)
Similarly, Plaintiff did not plausibly allege a tortious
interference with a contract claim under New York State law against
the Non-Federal Defendants. (Id. at 46-50.) Plaintiff’s

conclusory allegations that the Non-Federal Defendants tortiously
interfered with his contract with the DOE were not plausible
because they “lack[ed] the specificity required to state a claim
for tortious interference with a contract.” (Id. at 49.) Indeed,
the Court found that “Plaintiff’s conclusory allegation that the
Non-Federal Defendants’ conduct ‘induced DOE and others to breach
the FFEL Loan Master Promissory Note Contract and or Direct Loan’
(SAC 875-76; 1154-55; 1894-95), does not satisfy his pleading
burden as mere recitation of the legal standard.” (Id.) Further,
“Plaintiff fail[ed] to include any factual allegations as to any
actions taken by the Non-Federal Defendants to “intentionally
procure” the DOE’s breach of the Note. (Id. (cleaned up).) While

Plaintiff refers to Navient’s alleged failure to provide him with
a toll-free number and its refusal to process payments, deferments,
and forbearances (SAC 885-87), he does not allege how this conduct
was the “but for” cause of DOE’s alleged breach of the Note. (Id.
at 49-50.) Accordingly, the Court dismissed Plaintiff’s tortious
interference with contract claim without prejudice. (Id. at 50.)
Plaintiff’s conspiracy claim against the Defendants,
brought pursuant to 42 U.S.C. § 1985(2), was also dismissed without
prejudice in the absence of any allegations suggesting that there
was a “meeting of the minds” among any of the Defendants or that
a class-based discriminatory animus motivated the Non-Federal
Defendants’ actions. (Id. at 50-52.) Finally, the Court declined

to consider Plaintiff’s contempt of court against Donovan, given
“the state court’s explicit retention of jurisdiction,” and thus
dismissed such claim without prejudice and in deference to the
state court which “is best qualified to interpret and enforce its
own order.” (Id. at 54-55.)
The Court granted Plaintiff leave to amend his SAC “in
accordance with this Memorandum and Order and,” on January 14,
2022, Plaintiff filed his 143-page TAC against all of the same
Defendants as the SAC but with the addition of some eighteen new
defendants,3 including the undersigned.
III. The Third Amended Complaint
Notwithstanding the Court’s clear guidance that

Plaintiff was “granted leave to file a Third Amended Complaint in
accordance with th[e] Memorandum and Order,” Plaintiff has instead
filed a voluminous TAC adding many New Defendants and fanciful
allegations. (See generally TAC and in particular lines 148-158,

3 The “New Defendants” are: Joyce Demoss, Thaddeus Bartkowiak, Dawn
Scaniffe, Angelica Kamionka, Emily Pollack, Jocyline (last name
unknown), Donna Soles, Eric Hurwitz, Francis Manning (alias:
Franny), New York Higher Education, Thomas Brennan, Alex
Rodriguez, Nicolette Pirrone, Department of Justice, Robert
Shumacher, II, Vaughn Bond, Roy Mahon, and the undersigned, Joanna
Seybert. (See TAC at pp. 1, 7-8.)
196-202, 508-519.) Upon closer review, however, Plaintiff has
largely simply re-submitted his SAC. Indeed, only 16 of the 143
pages are new. (See TAC at pp. 1-8, 45-49, 109-111.) Plaintiff

has, however, amended the SAC to allege all of his claims against
all of the Defendants in the TAC (see TAC at pp. 51, 53-56, 58-
60, 62-64, 66, 68-72, 82, 84, 85-89, 91-99, 101-102, 104, 106-
107), has added eighteen New Defendants, and has included four new
paragraphs on page 22.4 Given that the Court has already
painstakingly and comprehensively analyzed and dismissed all of
the claims set forth in the SAC in its fifty-seven-page opinion,
many for lack of subject matter jurisdiction or with prejudice for
failure to state a claim for relief, the Court considers only the
new allegations.5 (Compare SAC, with TAC.)

4 Notably, Plaintiff added four new paragraphs on page 22 of the
TAC (¶¶ 95-98) wherein he claims for the first time that he was
“sexually assaulted” when, “[i]n collusion with other
defendants[,] a[n] unknown paid person and Scott Bernstein of SRSY
. . . grabb[ed] [] my genitals and st[uck] a finger in my rectum
after sneaking up on me.” (Id. at 22, ¶ 95.) Plaintiff further
alleges that unspecified “Defendants made anti[-]Semitic remakes
[sic] and stated that because of my Jewish religion and Middle
Eastern nationality that I ‘qualified’ for special treatment,
which was harassment, target of fraud, battery and sexual
harassment.” (Id. ¶ 96.) Plaintiff also claims that unidentified
“DOE employees stated that because of 9/11 and ‘the Jews’
involvement, special precautions were taken against me . . . due
to my heritage.” (Id. ¶ 97.) Further, Plaintiff alleges that
“SRSY and Navient employees called me a Kike, people hate the Jews
and they can do what they want . . . because no one ‘believes
Jews.’” (Id. ¶ 98.)

5 In light of Plaintiff’s pro se status and in an abundance of
caution, the Court reviews the new allegations in TAC
Plaintiff’s typed TAC begins with a “WARNING” that the
document was prepared without access to PACER, “the court[’]s
computers, printers, copy machine and library.” (TAC at p. 2.)

Plaintiff next complains that he “has been denied access to minutes
of the trial.”6 (Id.) As a result, Plaintiff claims he was “denied
fair due process.” (Id.)
Next, under the heading “Procedural History”, Plaintiff
challenges the Court’s November 14, 20187 consolidation of the
present case with Plaintiff’s other case arising from the same

notwithstanding the fact that they are well beyond the scope of
the limited leave to amend this Court granted. The Court is well
“authorized to dismiss claims going beyond the scope of the
original lawsuit and the permitted amendment.” McCray v. New York,
No. 17-CV-1395, 2019 WL 5634841, at *3 (S.D.N.Y. Oct. 31, 2019)
(citing McCray v. Caparco, 761 F. App’x 27, 30-31 (2d Cir. Jan.
31, 2019)) (affirming dismissal of amended complaint because it
went beyond the scope of the permitted amendment); Palm Beach
Strategic Income, LP v. Salzman, 457 F. App’x 40, 43 (2d Cir. 2012)
(collecting cases) (“District courts in this Circuit have
routinely dismissed claims in amended complaints where the court
granted leave to amend for a limited purpose and the plaintiff
filed an amended complaint exceeding the scope of the permission
granted.”).

6 Given that this case is pre-trial, there is no trial transcript.
Notwithstanding, insofar as Plaintiff sought “transcripts,” the
Court properly directed him to the court reporter as is the
procedure for obtaining transcripts of any proceeding in the
Eastern District of New York. (See Mar. 10, 2021 Elec. Order (“Any
requests for transcripts must be directed to the court
reporter.”).)

7 Although Plaintiff references “a November 2014” decision of the
undersigned, the Court understands it to be the November 14, 2018
Electronic Consolidation Order. Since this case was commenced in
2018, there are no 2014 decisions.
facts, No. 18-CV-3852, and alleges that the undersigned’s “writing
is wrong, misleading and changing to benefit the courts and the
Defendants.” (Id.) Plaintiff complains that the undersigned

referenced his pro se status and alleges that the Court “tr[ied]
to discreate [sic] my credibility by calling me Pro Se, such as my
arguments don’t matter.” (Id.) Further, Plaintiff claims that
the undersigned “gives the false impression that extensions and
requests for amended motions are done for my well being which is
absolutely false. These extensions are made for the well being of
the defendants, who her and her clerks have a close relationship
outside courts.” (Id.) Plaintiff also challenges the
undersigned’s denial of his request for an interlocutory appeal
and claims the undersigned “misrepresented the fact that my papers
were not signed” and claims that the undersigned “contacted the
PACER department to block my access.” (Id. at pp. 3, 6.)

Later on in the TAC, Plaintiff dissects the Court’s
December 4, 2020 Memorandum and Order and recites the “[t]hings
Judge Seybert got wrong.” (TAC at p. 45.) According to the TAC,
the undersigned’s “orders are contradictory, not based on much
fact or laws and [are] incoherent at times.” (Id.) Plaintiff
also complains that he is “unable to use a searchable format of
this ‘decision’ due to his inability to access PACER.” (Id.)
Plaintiff complains that the undersigned blocked his access to
PACER as an administrative procedure, not by order, thus placing
the alleged act beyond the scope of judicial immunity. (Id. at p.
8.) Further, Plaintiff alleges that the undersigned was added as
a defendant in June of 2021, “acknowledged receiving the amended

complaint and yet still is acting as a judge, even after she was
removed.” (Id.)
The TAC also now names the Honorable Roy Mahon, New York
State Supreme Court Justice, Nassau County, and the undersigned as
defendants.8 Plaintiff alleges that Justice Mahon is a “white
supremacist and proud boy members [sic]” who “us[ed] his influence
in order to impact Federal legal proceedings.” (Id. at p. 6.)
Plaintiff claims that Justice Mahon called Plaintiff “saying how
insulting it is I brought these claims to the Federal court system
and it is insulting to him. He even stated I was ‘stupid for a
Jew.’” (Id.) Plaintiff claims that Justice Mahon “had private
emails conversations with other defendants in which they asked for

‘favors’ from him which he complied.” (Id. at p. 8.)
In addition, Plaintiff claims, for the first time, that
Vaughn Bond (“Bond”), an employee at the New Castle Police
Department, together with Donovan, have “committed violence and
sexual assault against plaintiff” and have “hack[ed] into my cloud,
trigger[ed] my alarm system as part of their swatting campaign and
[have] personally called and threatened me.” (Id.) Bond allegedly

8 Justice Mahon presided during related state court proceedings
brought by Donovan against Edelman. (See, e.g., ECF No. 58-4.)
provided Donovan “with illegal weaponry” such as “flash bang
grenades, in case I cause too much trouble.” (Id.) Further,
Plaintiff claims he lacked access to PACER, court documents,

transcripts, copies of decisions, printer, my own papers . . . due
to the hacking and deleting of files as well as the breaking into
my car and stealing my bag with my paper copies and USB by the
Defendants.” (Id. at p. 49.)
Finally, Plaintiff purports to add new claims against
“All Defendants.” (Id. at pp. 109-111.) First, Plaintiff alleges,
as Count 29, that the Defendants denied him access to a
“rehabilitation plan” in violation of the APA and seeks “monetary
damages and injunctive relief ruling that this loan is not legally
enforceable.” (Id. at pp. 109-110.) Second, in Count 30,
Plaintiff “repeats and re-alleges the allegations in this
complaint” and alleges “[a]s can be seen in exhibit 20 a FOIA

request was made and not fulfilled.” (Id. at p. 111.) Thus,
Plaintiff “seek[s] copies of these documents.” (Id.) Third,
Plaintiff alleges, as Count 31, that the undersigned denied him
due process by: (1) blocking his access to PACER by administrative
act rather than by order; and (2) continuing to preside over this
case after being named as a defendant. (Id.) Last, Plaintiff
claims, as Count 32, the DOE, DOJ, NYHE, and Bond “released private
information [protected by 5 U.S.C. § 552a] to the other
Defendants.” (Id. at p. 99.)
DISCUSSION
I. Legal Standard
The Court must liberally construe Plaintiff’s pro se

TAC. Indeed, a complaint filed by a pro se litigant is to be
construed liberally and “however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted). “However, the liberal
treatment afforded to pro se litigants does not excuse a pro se
party from compliance with relevant rules of procedural and
substantive law.” Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (internal quotation marks and citation omitted).
Thus, a pro se complaint must state a plausible claim for relief
and comply with the minimal pleading standards set forth in Federal
Rule of Civil Procedure 8. See, e.g., Prezzi v. Schelter, 469

F.2d 691, 692 (2d Cir. 1972) (per curium) (affirming dismissal of
pro se plaintiff’s 88-page, legal size, single spaced complaint
that “contained a labyrinthian prolixity of unrelated and
vituperative charges that defied comprehension” for failing to
comply with the requirement of Rule 8); Lafurno v. Walters, No.
18-CV-1935, 2018 WL 2766144, at *3 (E.D.N.Y. June 8, 2018)
(Seybert, J.) (same).
Moreover, notwithstanding the special solicitude
afforded pro se litigants,
[a] court should dismiss an action as frivolous when
“the ‘factual contentions are clearly baseless,’ such as
when allegations are the product of delusion or
fantasy.” Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998) (quoting Nance v. Kelly,
912 F.2d 605, 606 (2d Cir. 1990)). “[A] finding of
factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly
incredible.” Denton v. Hernandez, 504 U.S. 25, 33
(1992). A complaint is “‘factually frivolous’ if the
sufficiently well-pleaded facts are ‘clearly baseless’
-- that is, if they are ‘fanciful,’ ‘fantastic,’ or
‘delusional.’” Gallop v. Cheney, 642 F.3d 364, 368 (2d
Cir. 2011) (quoting Denton, 504 U.S. at 33) (affirming
dismissal of claim “that the most senior members of the
United States government conspired to commit acts of
terrorism against the United States” on September 11,
2001, and reasoning that “the courts have no obligation
to entertain pure speculation and conjecture”).

Pacheco v. N.S.A., No. 20-CV-5702, 2021 WL 25373, at *2 (E.D.N.Y.
2021). Indeed, “the courts have no obligation to entertain pure
speculation and conjecture.” Gallop, 642 F.3d at 368.
II. Application
A. Recusal is Not Warranted
As a threshold matter, the Court must consider whether
it would be appropriate to recuse because it has been named as a
defendant. The Court determines that it would not be. A judge
must recuse herself if her impartiality might reasonably be
questioned. See 28 U.S.C. § 455(a). Section 455 is “evaluated on
an objective basis, so that what matters is not the reality of
bias or prejudice but its appearance.” Liteky v. United States,
510 U.S. 540, 548 (1994). “Recusal is appropriate when a
reasonable person, knowing all the facts would question the judge’s
impartiality.” Canady v. Univ. of Rochester, 736 F. App’x 259,
261 (2d Cir. 2018) (cleaned up).
“Courts that have considered the issue have routinely

concluded that a judge is not disqualified merely because a
litigant sues or threatens to sue him [or her].” Figueroa v.
Trump, No. 92-CV-0401, 2020 WL 5640397, at *2 (N.D.N.Y. Sept. 22,
2020), (citing Gabor v. Seligmann, 222 F. App’x 577, 578 (9th Cir.
2007) (“Such an easy method for obtaining disqualification should
not be encouraged or allowed.”)); Jones v. City of Buffalo, 867 F.
Supp. 1155, 1163 (W.D.N.Y. 1994) (“Section 455 has been repeatedly
construed by the courts as not requiring automatic
disqualification of a judge [where a litigant names a judge as a
defendant]. Otherwise, [Section] 455 could be used as a vehicle
to engage in judge-shopping[.]” (internal quotation marks and
alterations omitted)).

Here, because the undersigned holds no bias or prejudice
towards Plaintiff or his claims and is unaware of any facts or
circumstances that would otherwise disqualify it from presiding
over this action, the Court declines to recuse.
B. Claims Against the Undersigned
“It is well settled that judges are absolutely immune
from suit for any actions taken within the scope of their judicial
responsibilities.” DuQuin v. Kolbert, 320 F. Supp. 2d 39, 40-41
(W.D.N.Y. 2004) (citing Mireles v. Waco, 502 U.S. 9, 10 (1991));
see also Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). “This is
true however erroneous an act may have been, and however injurious
its consequences were to the plaintiff.” Figueroa, 2020 WL

5640397, at *2 (citing Young, 41 F.3d at 51). “[A] judge is immune
only for actions performed in his judicial capacity.” DuQuin, 320
F. Supp. 2d at 41.
Here, Plaintiff seeks to assert a cause of action against
the undersigned based on the undersigned’s allegedly (1) erroneous
decisions, including the November 14, 2018 Consolidation Order and
the December 4, 2020 Memorandum and Order dismissing the SAC and
granting leave to file the TAC; and (2) blocking his PACER access.
(See TAC at pp. 2, 6, 8, 45-49, 111.)
“Rendering legal opinions in judicial orders is
precisely within the scope of a judge’s responsibility, and judges
may be not sued even if, as [P]laintiff[] allege[s], the decisions

are erroneous or illegal.” Figueroa, 2020 WL 5640397 at *2; see
also Stump v. Starkman, 435 U.S. 349, 362 (1978) (“[T]he factors
determining whether an act by a judge is a ‘judicial’ one relate
to the nature of the act itself, i.e., whether it is a function
normally performed by a judge, and to the expectations of the
parties, i.e., whether they dealt with the judge in his judicial
capacity.”); Lindsay v. Tierney, No. 18-CV-0840, 2019 WL 132728,
at *3 (D. Conn. Jan. 8, 2019) (“The appropriate remedy for an
unfavorable decision is an appeal of that decision within the . .
. court system. Relief from unfavorable decisions made by . . .
judges may not, however, be sought through a suit against such
judges in this court.”).

Similarly, Plaintiff’s conclusory allegation that this
Court blocked his access to PACER is patently false and belied by
the record. Indeed, by Electronic Order dated March 10, 2021, the
Court instructed that “Plaintiff may access PACER from any computer
with Internet access.” (Mar. 10, 2021 Elec. Order.) Further,
given Plaintiff’s citation to and quotation from this Court’s
orders, Plaintiff clearly has access to them. Accordingly, all
claims asserted against the undersigned are DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B).
C. The TAC is Frivolous
The in forma pauperis statute
accords judges not only the authority to dismiss a claim
based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims
whose factual contentions are clearly baseless.
Examples of the latter class . . . are claims describing
fantastic or delusional scenarios, claims with which
federal district judges are all too familiar.

Denton, 504 U.S. at 32 (quoting Neitzke v. Williams, 490 U.S. 319,
327-29 (1989)). “[A] finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict them.” Id. at
33. The Second Circuit has adopted this analysis even when the
plaintiff is not a prisoner or has paid the required filing fee.
See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d

362, 364 (2d Cir. 2000) (noting that “district courts are
especially likely to be exposed to frivolous actions, and thus
have an even greater need for inherent authority to dismiss such
actions quickly in order to preserve scarce judicial resources”).
“District courts may dismiss a frivolous complaint sua
sponte . . . where the claims are found to be fantastic and
delusional.” McCracken v. Fass, No. 06-CV-3892, 2006 WL 2927162,
at *1 (E.D.N.Y. Oct. 10, 2006) (Seybert, J.). Plaintiff’s
allegations here -- that numerous people, including the
undersigned and Justice Mahon, as well as the Secretary of
Education, several employees of the Department of Education,
Navient, SRSY, and the NYHE, in addition to police officer Bond -

- acted in concert to sabotage Plaintiff’s claims and to harass
him are wholly unsupported by any facts.
That Plaintiff believes there is an ongoing conspiracy
against him is not at issue. A “[p]laintiff’s beliefs -- however
strongly he may hold them -- are not facts.” Morren v. New York
Univ., No. 20-CV-10802, 2022 WL 1666918, at *18 (S.D.N.Y. Apr. 29,
2022) (citing Gallop, 642 F.3d at 368 (“A court may dismiss a claim
as ‘factually frivolous’ if the sufficiently well-pleaded facts
are ‘clearly baseless’ -- that is, if they are ‘fanciful,’
‘fantastic’ or ‘delusional.’”)), report and recommendation
adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022); Thomas v. Carter,
No. 20-CV-8682, 2022 WL 220170 (S.D.N.Y. Jan. 25, 2022) (dismissing

pro se complaint as frivolous where plaintiff alleged, inter alia,
that defendants “hacked into his personal electronic devices to
obtain more of his intellectual property”); Araman v. Real Est.
Bd. of N.Y., No. 21-CV-8397, 2022 WL 1443320, at *2 (S.D.N.Y. May
6, 2022) (finding pro se complaint frivolous in light of
plaintiff’s assertion, inter alia, that “an individual hack[ed]
her computer and bank account and delet[ed] text messages from her
phone”); Ciltas v. Wang, No. 20-CV-2520, 2020 WL 6146865, at *1
(E.D.N.Y. Oct. 20, 2020) (dismissing pro se complaint as frivolous
given plaintiff’s assertion, inter alia, that “his electronic
devices, including a laptop and smart phone, were hacked”); Sowell
v. Jeffries, No. 18-CV-3395, 2018 WL 10879389, at *1 (E.D.N.Y.

June 13, 2018) (dismissing claims “that [plaintiff’s] personal
computer, cellphone and car were hacked and that Congressman
[Hakeem] Jeffries failed to take action when she complained to
him”); Khalil v. United States, No. 17-CV-2652, 2018 WL 443343, at
*4 (E.D.N.Y. Jan. 12, 2018) (dismissing complaint where
“[p]laintiff allege[d] a broad conspiracy involving surveillance
of and interference with his life by the United States and various
government actors” because his allegations were “irrational and
wholly incredible”).
Thus, the Court finds that the TAC is frivolous.
Livingston, 141 F.3d at 437.9 Accordingly, the TAC is DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B). Greathouse v. JHS Sec.

Inc., 784 F.3d 105, 119 (2d Cir. 2015) (Korman, J., concurring in
part and dissenting in part) (“Courts have both statutory and
inherent authority to sua sponte dismiss frivolous suits.”).
D. The TAC Does Not Cure the Deficiencies in the SAC
Even if the Court did not find Plaintiff’s TAC to be
frivolous or fanciful, it fails because it does not allege a
plausible claim for relief. For the reasons that follow, Plaintiff
did not cure any of the deficiencies noted in the SAC even after
being afforded considerable guidance and ample opportunity to do
so.
As the Court made clear, Plaintiff was granted “leave to
amend his APA claims to address . . . the lack of allegations that

he followed the applicable administrative procedures governing the
cancellation of his Loans if, in fact, he followed said
procedures.” (Order at 25.) Notably absent from the voluminous
TAC are any factual allegations regarding Plaintiff’s adherence
with the applicable administrative procedures. (See TAC at pp.

9 In reaching its conclusions, the Court is mindful that “issues of
fact, credibility, and the weight of the evidence are not properly
considered” at this stage in the proceedings, and the Court has
not considered them here. Morren, 2022 WL 1666918, at *12.
109-110.)10 Similarly, the Court concluded that Plaintiff lacked
standing to bring his FCRA claim in the absence of any allegations
that Navient received notification from a consumer reporting

agency regarding the accuracy of information furnished by Navient,
as required by Section 1681s-2(b). (Order at 28.) The TAC, like
the SAC, includes no such allegations. Moreover, Plaintiff’s
defamation claim was dismissed in the absence of any facts alleging
that the defamatory statement was motivated solely by common law
or constitutional malice. (Order at 39.) Finding Plaintiff’s
allegations that Navient’s statement was “intentional” or
“negligent” were wholly conclusory and unsupported by any factual
allegation, the Court dismissed Plaintiff’s defamation claim.
(Id. at 38-39.) The TAC does not cure this deficiency either.
The Court also dismissed Plaintiff’s intentional
infliction of emotional distress claims against Navient and SRSY

without prejudice in the absence of factual allegations of conduct
that is “extreme” and “outrageous”. (Id. at 41.) Now Plaintiff
alleges, for the first time, that “an unknown person and Scott
Bernstein (“Bernstein”) of SRSY sexually assaulted myself which
included the grabbing of my genitals and sticking a finger in my

10 The TAC includes excerpts from the APA, Plaintiff’s summary of
the law, and conjecture, but is devoid of any factual allegations.
(TAC pp. 109-10.)
rectum after sneaking up on me.” (TAC at 508-510.)11 Plaintiff
also now asserts that unspecified “Defendants made anti[-]Semitic
remakes [sic] and stated that because of my Jewish religion and

Middle Eastern nationality that I ‘qualified’ for special
treatment, which was harassment, target of fraud, battery, and
sexual harassment.” (Id. at 511-13.) Plaintiff also claims that
unidentified “DOE employees stated that because of 9/11 and ‘the
Jews’ involvement, special precautions were taken against me . .
. due to my heritage.” (Id. at 514-16.) Further, Plaintiff
alleges that “SRSY and Navient employees called me a Kike, people
hate the Jews and they can do what they want . . . because no one
believes Jews.” (Id. at 517-19.)
Given that Plaintiff has not alleged that any particular
Defendant has engaged in the claimed extreme and outrageous
conduct, Plaintiff again fails to allege a plausible intentional

infliction of emotion distress claim. It is well established that
Federal Rule of Civil Procedure 8 “requires, at a minimum, that a
complaint give each defendant fair notice of what the plaintiff’s
claim is and the ground upon which it rests,” and that a complaint
fails to meet that minimum where it “lump[s] all the defendants
together in each claim and provid[es] no factual basis to

11 Curiously, although Plaintiff has added 18 new defendants, he
has not named Bernstein despite Plaintiff’s claim of physical
sexual assault.
distinguish their conduct.” Atuahene v. City of Hartford, 10 F.
App’x 33, 34 (2d Cir. 2001) (summary order). Thus, Plaintiff’s
intentional infliction of emotional distress claims are not

plausible and are thus DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B).
Similarly, the Court dismissed without prejudice
Plaintiff’s fraud claim against Navient and SRSY, because
Plaintiff did not plausibly allege any of the elements for such
claim as required by New York State law, nor did he comply with
Federal Rule of Civil Procedure 9(b)’s particularity requirement.
(Order at 41-44.) In dismissing these claims, the Court made clear
that a plausible fraud claim must include “the identity of the
allegedly fraudulent statements, the speaker of those statements,
or specify when and where the statements were made” as well as
“how any of the alleged statements were fraudulent.” (Id. at 43.)

Again, Plaintiff’s TAC does not even attempt to cure these
deficiencies, as the only amendment alleges the fraud claim against
“All Defendants.” (See TAC 432-47.) Thus, Plaintiff’s fraud
claims are not plausible and are thus DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B).
Likewise, the Court dismissed without prejudice
Plaintiff’s tortious interference with a contract claim under New
York State law against the Non-Federal Defendants, because his
allegations that the Non-Federal Defendants tortiously interfered
with his contract with the DOE “lack[ed] the specificity required
to state a claim for tortious interference with a contract.”
(Order at 49.) Rather than attempt to allege any new facts in

support of his tortious interference claim, Plaintiff simply
repeated the same allegations as set forth in the SAC and added
that these claims are against “All Defendants”. (TAC at ¶¶ 87-
98.) Thus, as is readily apparent, Plaintiff’s tortious
interference with contract claims are not plausible and are thus
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
Finally, the Court dismissed Plaintiff’s conspiracy
claim, brought pursuant to 42 U.S.C. § 1985(2), in the absence of
any allegations suggesting that there was a “meeting of the minds”
among any of the Defendants or that a class-based discriminatory
animus motivated the Non-Federal Defendants’ actions. (Order at
50-52.) The TAC includes no new allegations in support of a

conspiracy claim. Again, Plaintiff simply amended this claim as
against “All Defendants.” Thus, Plaintiff’s conspiracy claim is
not plausible and is thus DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B).
III. Leave to Amend
“Generally, leave to amend should be freely given, and
a pro se litigant in particular should be afforded every reasonable
opportunity to demonstrate that he has a valid claim.” Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Matima v. Celli,
228 F.3d 68, 81 (2d Cir. 2000)). Thus, a pro se action “should
not be dismissed without granting leave to replead at least once
when such a reading ‘gives any indication that a valid claim might

be stated.’” Barnes v. United States, 204 F. App’x 918, 919 (2d
Cir. 2006) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999)). However, even where a plaintiff is proceeding
pro se, “leave to amend a complaint may be denied when amendment
would be futile.” Nielsen, 746 F.3d at 62 (internal citation and
quotation marks omitted).
In this case, Plaintiff has already been given two
chances to amend his pleading. This Court’s Memorandum and Order
dismissing the SAC made abundantly clear the deficiencies in
Plaintiff’s claims, and, in dismissing such claims without
prejudice and with leave to amend, set forth clear guidance as to
what was needed in order to sufficiently allege a plausible claim.

(See Order at 25, 28, 39, 44, 50, 52, 55-56.) Further, the Court
limited the scope of any amended complaint. (Id. at 55-56.)
In filing this 143-page TAC against 18 new Defendants.
Plaintiff disregarded the Court’s instruction and, rather than
attempt to cure the noted deficiencies, Plaintiff largely re-filed
those claims albeit this time as against “All Defendants.” Enough
is enough. A careful reading of the TAC reflects that,
notwithstanding the extraordinary prolixity, there are simply no
facts to support Plaintiff’s claims. And, given the fantastic
nature of the new allegations, it is apparent that Plaintiff’s
action is frivolous and malicious. Thus, leave to amend would be
futile and, accordingly, LEAVE TO FURTHER AMEND IS DENIED.

CONCLUSION
For the reasons stated, IT IS HEREBY ORDERED that
Plaintiff’s TAC IS DISMISSED IN ITS ENTIRETY, WITH PREJUDICE,
PURSUANT TO 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. §
1915(a)(3), any appeal from this Order would not be taken in good
faith and therefore in forma pauperis status is DENIED for the
purpose of any appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962); and
IT IS FURTHER ORDERED that the Clerk of the Court shall
mail a copy of this Order to the pro se Plaintiff; and
IT IS FURTHER ORDERED that the Clerk of the Court shall

enter JUDGMENT and mark this case CLOSED.
SO ORDERED.

/s/ Joanna Seybert _
JOANNA SEYBERT, U.S.D.J.

Dated: July _1_, 2022
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308121. Public record. Not legal advice.