Vazquez Carbuccia v. State of New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CHRISTOPHER JAVIER

VAZQUEZ CARBUCCIA,

Plaintiff,

V.

No. 1:22-CV-196

STATE OF NEW YORK and SCHENECTADY (GTS/CFH)

FAMILY COURT,

Defendants.

APPEARANCES:

Christopher Javier Vazquez Carbuccia

45 Arnold Ave.

Apt. 2

Amsterdam, New York 12010

Plaintiff pro se

REPORT-RECOMMENDATION AND ORDER

I. In Forma Pauperis

Plaintiff pro se’ Christopher J. Vazquez (‘plaintiff’) purported to commence this

action on March 2, 2022, by filing a complaint. See Dkt. No. 1 (“Compl.”). Plaintiff did

not pay the filing fee or submit an application for leave to proceed in forma pauperis

(“IFP”). See id. Accordingly, the Court administratively closed the case with an

opportunity to comply with the filing fee requirement. See Dkt. No. 2. The Order

directed plaintiff to either submit the full $402 filing fee or complete an IFP application

within thirty days of the filing date of the Order. See id. at 1. The Order was filed on

Pro se means “to appear for one’s self” or that a person is not represented by an attorney or another

person. lannaccone v. L., 142 F.3d 553, 558 (2d Cir. 1998).

March 4, 2022. See id. Thus, plaintiff had until April 4, 2022, to timely pay the filing

fee or file an IFP application. Plaintiff was sent a copy of the Order by regular mail. On

March 18 and April 28, 2022, plaintiff contacted the Albany Clerk’s Office asking about

the status of his case and he was informed that he needed to submit his IFP application,

Plaintiff submitted an IFP motion on May 5, 2022, 31 days past the deadline set forth in

the administrative closure order. See Dkt. No. 3.

Despite plaintiff's untimeliness, given the fact that he is proceeding pro se, and

due to special solicitude, the undersigned will consider this belated filing. Plaintiff has

previously failed to follow these filing requirements, but the undersigned has

nevertheless considered the IFP application. See Vazquez v. Times Union Newspaper,

1:21-CV-1359 (DNH/CFH), Dkt. No. 5 at 1-2; Vazquez v. Hometown Health Center,

1:21-CV-1371 (MAD/CFH), Dkt. No. 8 at 1-2. The undersigned has reviewed plaintiff's

present IFP motion and determines that he financially qualifies to proceed IFP for the

purpose of filing. See Dkt. No. 3.

ll. Initial Review

A. Legal Standard

Section 19154 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

2 Thirty days from March 4, 2022, was April 3, 2022. However, April 3, 2022, was a Sunday; therefore,

plaintiff had until the April 4, 2022, to timely file the IFP application. See FED. R. Civ. P. 6(a)(1).

3 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any costs and

fees that he may incur in this matter, including, but not limited to, any copying fees or witness fees.

4 The language of 1915 suggests an intent to limit availability of IFP status to prison inmates. See 28

U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a

person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The

determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a

claim on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). It is a court’s responsibilit

to determine that a plaintiff may properly maintain his complaint before permitting him to

proceed with his action.

o Where, as here, the plaintiff proceeds pro se, “the court must construe his [or

her] 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)

(citation and internal quotation marks omitted). This does not mean the Court is

required to accept unsupported allegations that are devoid of sufficient facts or claims.

Although detailed allegations are not required at the pleading stage, the complaint must

Still include enough facts to provide the defendants with notice of the claims against

them and the grounds on which these claims are based. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Pro se

litigants are “not exempt . . . from compliance with relevant rules of procedural and

substantive law[.]’ Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citation omitted).

Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is

| 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.” Iqbal, 556 U.S. at 678 (citation

omitted).

courts have construed that section, however, as making IFP status available to any litigant who can meet

financial criteria. See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.NLY.

Pleading guidelines are set forth in the Federal Rules of Civil Procedure (“Fed. R.

Civ. P.”). Specifically, Rule 8 provides that a pleading which sets forth a claim for relief

shall contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” FED. R. Civ. P. 8(a)(2). “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, 55 (N.D.N.Y. 1999)

(internal quotation marks and citations omitted). Rule 8 also requires the pleading to

include “a short and plain statement of the grounds for the court’s jurisdiction” and “a

demand for the relief sought... .” FED. R. Civ. P. 8(a)(1), (3). Although “[nJo 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)(1).

Further, Rule 10 provides in pertinent part that:

[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.

m| 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 55 (internal quotation marks and citations omitted). A complaint that fails to

comply with the pleading requirements “presents far too [] heavy [a] burden in terms of

defendants’ 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). The Second Circuit has held that “[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) (citation omitted). However, “[d]ismissal . . . is usually reserved for those

cases in which the complaint is so confused, ambiguous, vague, or otherwise

o unintelligible that its true substance, if any, is well disguised.” Id. (citation omitted). If

dismissal is warranted and the plaintiff is pro se, the court generally affords the plaintiff

leave to amend the complaint. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir.

1995).

B. Plaintiff's Filing History®

Plaintiff has a history of filing in the Northern District of New York, untimely IFP

applications and complaints that are often dismissed at the pleading stage. The

following recitation of plaintiff's filing history has been derived from Chief Judge

Suddaby’s Show Cause Order in case number 1:22-PF-2 (GTS), Dkt. No. 1 at 2-4:

1. Vazquez v. Dollar General Corp., 1:21-CV-0330 (BKS/CFH), Dkt. No. 14

(dismissing plaintiff's complaint without prejudice); Dkt. No. 15 (entering

judgment dismissing plaintiff's complaint following his failure to file an amended

complaint); see 2021 WL 4407817, at *4 (N.D.N.Y. Sept. 27, 2021), motion for

relief from judgment denied, 2022 WL 279560 (N.D.N.Y. Jan. 31, 2022).°

5 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have

been provided to plaintiff.

8 Although the undersigned provides the Westlaw citations for plaintiff's other cases in the Northern

District, copies have not been provided to plaintiff as he was provided copies by certified and/or regular

mail when the orders or decisions were filed.

2. Vazquez v. Times Union Newspaper, 1:21-CV-1359 (DNH/CFH), Dkt. No. 2

(ordering administrative closure for plaintiff's failure to pay the filing fee or file an

IFP motion); Dkt. Nos. 5, 7, 8 (granting plaintiff's belatedly filed IFP motion but

dismissing the complaint with prejudice and without leave to amend for failure to

state a claim or establish subject matter jurisdiction); see 2022 WL 837474, at *4

o (N.D.N.Y. Mar. 1, 2022), report and recommendation adopted, 2022 WL 833370

(N.D.N.Y. Mar. 21, 2022).

3. Vazquez v. Hometown Health Center, 1:21-CV-1371 (MAD/CFH), Dkt. No. 2

(ordering administrative closure for plaintiff's failure to pay the filing fee or file an

IFP motion); Dkt. No. 8 (granting the belatedly filed IFP application and

recommending dismissal of the complaint for failure to establish subject matter

jurisdiction or state a claim); see 2022 WL 2304213, at *6 (N.D.N.Y. June 27,

2022).

4. Vazquez v. St. Mary’s Healthcare, 1:22-CV-0317 (GTS/TWD), Dkt. No. 2

(ordering administrative closure for failure to pay the filing fee or file an IFP

motion); Dkt. No. 7 (recommending dismissal of the complaint for failure to state

a Claim or establish subject matter jurisdiction); see 2022 WL 1659194, at *4

(N.D.N.Y. May 25, 2022); Dkt. Nos. 9, 10 (dismissing plaintiff's complaint without

prejudice and without leave to amena).

Based on these filings, and plaintiff “becom[ing] increasingly abusive when

communicating with Court staff[,]” on May 2, 2022, Chief Judge Suddaby ordered

plaintiff to, within fourteen days, “show cause, in writing, why he should not be enjoined

from filing any future pleadings or documents of any kind (including motions) in the

Northern District of New York pro se without prior permission of the Chief Judge or his

or her designee[.]” In re: Christopher J. Vazquez, 1:22-PF-002 (GTS), Dkt. No. 1 at 4,

8. Plaintiff did not respond within fourteen days and on May 23, 2022, Chief Judge

Suddaby entered a pre-filing injunction pursuant to 28 U.S.C. § 1651(a), permanently

enjoining plaintiff from filing any documents in the Northern District without prior

o permission of the Chief Judge or his or her designee. See id. at Dkt. No. 2. Plaintiff's

filings in the present matter were filed prior to Chief Judge Suddaby’s imposition of the

injunction and, as such, the undersigned will proceed to review the complaint’s

sufficiency under the § 1915 standard. See id. at 7 (“[NJothing in this Pre-filing Order

... affects his rights in any of his currently pending actions[.]’).

C. Plaintiff's Complaint

Plaintiff's “complaint” is a one-page handwritten letter stating that he is “suing the

State of New York for the mis-handling of [his] case in the ‘Schenectady County Family

Court System.” Compl. (emphasis omitted). Plaintiff asserts that the Schenectady

County Family Court “completely ignored all the information [he] gave them, and

allowed an enraged vindictive girl, to take control of [his] daughter.” Id. Plaintiff also

seeks to sue “the State of New York for defamation, emotional distress, and abuse of

Power. There were dishonorable restraining orders put in play [sic], all [he] believe[s],

on the State[']s data, pass data. No proper vetting process on the State[']s behalf.” Id.

(emphasis omitted). Plaintiff contends that “[t]he State made it extremely easy for this

vindictive, stressed, enraged girl, to literally walk in and put a man|] through a gruesome

process that is not only predicated on vindiction [sic] but also a bias, skewed

perspective.” Id. Plaintiff states that he “want[s his] hearing by August 18th. [He]

want[s] 2.5 million USD from the State for their incompetence.” Id.

On May 5, 2022, plaintiff submitted a copy of a Complaint and Summons from

the Supreme Court of the State of New York, County of New York. See Dkt. No. 4.

Plaintiff crossed off “New York” as the county, and hand-wrote, “Schenectady.” Id. at 1-

°/2. Plaintiff named the Schenectady County Family Court in the Complaint and

Summons, and wrote that, “[oJn and/or, around, the Duration of 4/13/2020 — 9/17/21,

also carrying into 2022 year, today’s date 4/18/22 the Defendant(s), approved ILLEGAL

restraining orders that prevented me from seeing my daughter and still is.” Id. at 2.

Plaintiff states that “[t]he Defendant(s), refused to accept my wishes with unjustifiable

means. Schenectady County and it’s associates, have went Rogue | believe with bad

m}intent, and | am here to be compensated for their doing, nothing more, nothing less.” Id.

Plaintiff also submitted a letter seeking diplomatic immunity and “to take an oath,

to insure [sic] confidentiality[.]” Dkt. No. 5. Plaintiff filed this same letter in his other

cases filed in the Northern District.’ Finally, plaintiff submitted a letter seeking “7 Billion

USD for the State’s . . . Abuse of power in ‘Schenectady County Family Court’ And also

in a case that ‘[he] was involved in’... in 2013... .” Dkt. No. 6. Included with the

letter, is an Albany County 2013 Certificate of Conviction for attempted criminal

possession of contraband or narcotics in which plaintiff received five years’ probation,

his driver's license was suspended, and he had to pay a “Mandatory Surcharge of

$325.00[.]” Id. at 2.

See Dollar General Corp., 1:21-CV-330, Dkt. No. 32; Times Union Newspaper, 1:21-CV-1359, Dkt. No.

10; Hometown Health Center, 1:21-CV-1371, Dkt. No. 6; St. Mary’s Healthcare, 1:22-CV-317, Dkt. No. 6.

D. Analysis

1. Subject Matter Jurisdiction

As an initial matter, plaintiff's purported complaint fails to establish this Court’s

subject matter jurisdiction. See Compl. Subject matter jurisdiction can be established

either through federal question or diversity jurisdiction. Under 28 U.S.C. § 1331, a case

©! “arising under the Constitution, laws, or treaties of the United States[]” is a federal

question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a

citizen of another State, and the amount in controversy is more than $75,000, is a

diversity case. If the Court has subject matter jurisdiction over federal claims, the Court

may choose to exercise supplemental jurisdiction over any state law claims. See 28

U.S.C.A. § 1367 (“[l]n 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 ... .”).

Plaintiff has not named a Constitutional provision or federal law under which he

seeks to bring his claims; therefore, he has not established federal question jurisdiction.

See Compl; see, e.g., Wray-Davis v. N.Y. Methodist Hosp., No. 16-CV-1618

(NGG/CLP), 2016 WL 1441332, at *2 (E.D.N.Y. Apr. 8, 2016) (“[T]he Complaint

suggests no basis for federal-question jurisdiction, as [the p]laintiff is not suing under

the Constitution or any federal laws. Instead, [the p]laintiff alleges malpractice, which is

a state law claim.”). Similarly, plaintiff has not purported to sue a citizen of a different

state; therefore, diversity jurisdiction does not exist. See Compl. As subject matter

jurisdiction has not been established, the Court cannot then exercise supplemental

jurisdiction over any purported state law claims such as plaintiffs reference to

“defamation.” Id.; see Kolari v. New York Presbyterian Hosp., 455 F.3d 118, 122 (2d

Cir. 2006) (citing 28 U.S.C. § 13672(c)(3)) (explaining that the district court has

discretion to decline to exercise supplemental jurisdiction over state law claims because

all claims over which the federal court has original jurisdiction have been dismissed).

Accordingly, as plaintiff has not established this Court’s jurisdiction, the undersigned

| recommends dismissing the purported complaint without prejudice. See Hernandez v.

Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a court lacks subject

matter jurisdiction, it also lacks the power to dismiss with prejudice.”).

Even if the undersigned were to liberally construe the purported complaint as

alleging a due process violation pursuant to 42 U.S.C. § 1983 as plaintiff states that his

family court case was “mishandled,” such a claim would necessarily fail as the State of

m| New York and Schenectady County Family Court are immune from suit. Compl.; cf.

Amato v. McGinty, No. 1:17-CV-593 (MAD/ATB), 2017 WL 9487185, at *6 (N.D.N.Y.

June 6, 2017), report and recommendation adopted, 2017 WL 4083575 (N.D.N.Y. Sept.

15, 2017) (citations omitted) (“To state a claim under section 1983, the plaintiff must

allege both that the defendant has violated plaintiff's rights under either the Constitution

or laws of the United States and that the defendant acted ‘under color of state law.’”).

2. Eleventh Amendment Immunity

“Under clearly established law, the Eleventh Amendment provides states

immunity in federal court.” Johnson v. Fischer, No. 1:19-CV-1384 (TJM/DJS), 2020 WL

758964, at *2 (N.D.N.Y. Feb. 14, 2020) (citing Woods v. Rondout Valley Cent. Sch. Dist!

Bd of Educ., 466 F.3d 232, 236 (2d Cir. 2006)). “As a general rule, state governments

and their agencies may not be sued in federal court unless they have waived their

10

Eleventh Amendment immunity or there has been a valid abrogation of that immunity by

Congress.” Allessi v. N.Y. State Dep't of Corr. & Cmty. Supervision, 16 F. Supp. 3d

221, 225 (W.D.N.Y. 2014) (citations omitted). “It is well-established that New York has

not consented to § 1983 suits in federal court, and that § 1983 was not intended to

override a state’s sovereign immunity.” Mamot v. Bd. of Regents, 367 F. App’x. 191,

492 (2d Cir. 2010) (Summary order) (internal citations omitted). Accordingly, plaintiff

cannot bring this action against the State of New York.

Moreover, “[t]he Eleventh Amendment extends immunity not only to a state, but

also to entities considered ‘arms of the state.”” McGinty v. New York, 251 F.3d 84, 95

(2d Cir. 2001) (citations omitted); see McKnight v. Middleton, 699 F. Supp. 2d 507, 521

(E.D.N.Y. 2010), aff'd, 434 F. App’x 32 (2d Cir. 2011) (citations omitted) (“[T]he New

m| York State Unified Court System is entitled to sovereign immunity as an ‘arm of the

State.””). The Schenectady County Family Court is a part of the New York State Unified

Court System and is entitled to sovereign immunity. See Yi Sun v. Saslovsky, No. 1:19-

CV-10858 (LTS), 2020 WL 6828666, at *3 (S.D.N.Y. Aug. 6, 2020) (collecting cases)

(“The New York Family Courts . . . are arms of the State of New York and enjoy

Eleventh Amendment immunity.”). Accordingly, had plaintiff established subject matter

| jurisdiction, his purported claim against the Schenectady County Family Court would

have to be dismissed.

3. Additional Letters

Plaintiff's letter seeking “Diplomatic Immunity[,]’ is baseless as plaintiff is not a

diplomat. Dkt. No. 5; see Swarna v. Al-Awadi, 622 F.3d 123, 133 (2d Cir. 2010)

(quoting Vienna Convention art. 31(1)) (“[A] ‘diplomatic agent shall enjoy immunity from

11

the criminal . . . civil and administrative jurisdiction’ of the receiving state.”). Further, to

the extent plaintiff's May 6, 2022, letter references a 2013 conviction, he did not include

information concerning the conviction in his purported complaint, his letter does not

provide any information as to the relief he seeks in relation to the conviction, and he

does not explain how an Albany County conviction relates to the State of New York or

its “vetting process” of his Schenectady County Family Court case. Compl.; see Dkt.

No. 6; see also 28 U.S.C. § 1915A (“[T]he court shall [] dismiss the complaint . . . if the

complaint [] is frivolous, malicious, or fails to state a claim upon which relief may be

granted[.]”). Accordingly, such claims could not stand even if plaintiff had established

jurisdiction.

I

lll. Opportunity to Amend

Generally, “[a] pro se complaint should not be dismissed without the Court

granting leave to amend at least once when a liberal reading of the complaint gives any

indication that a valid claim might be stated.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.

2014) (citation omitted). “However, if the problems with a complaint are ‘substantive’

| father than the result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity

to re-plead would be ‘futile’ and ‘should be denied.” Edwards v. Penix, 388 F. Supp. 3d

135, 144-45 (N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

2000)). “[L]ack of subject-matter jurisdiction is generally viewed as a substantive

defect.” Planck v. Schenectady Cnty., No. 1:12-CV-0336 (GTS/DRH), 2012 WL

1977972, at *6 (N.D.N.Y. June 1, 2012) (footnote omitted). As plaintiff has not

established jurisdiction, the purported defendants are immune from suit, and in light of

12

the problems in plaintiff's filing history, the undersigned recommends dismissing

plaintiff's complaint without leave to amend. See, e.g., St. Mary's Healthcare, 2022 WL

1659194, at *4 (citing Johnson v. Progressive.com, 19-CV-11202 (CM), 2020 WL

589127, at *1 (S.D.N.Y. Feb. 5, 2020) (declining to grant pro se plaintiff leave to amend

in light of the plaintiff's “abusive litigation history” and where amendment would be

futile)); see also Times Union Newspaper, 2022 WL 833370, at *1 (dismissing with

prejudice and without leave to amena).

IV. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

in ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. No. 3)

will be considered, and, upon consideration, is GRANTED for purposes of filing only;

and it is further

RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be DISMISSED

WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND.

IT 1S SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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,

13

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).8

Dated: June 30, 2022

Albany, New York

□□

Christian F. Hummel

U.S. Magistrate Judge

8 If you are proceeding pro se and are served with this Report-Recommendation & 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 & Order was mailed to you to serve and file objections.

FED R. Clv. 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).

14