# Vazquez Carbuccia v. State of New York

> District Court, N.D. New York · June 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10314992

## Case

- **Court:** District Court, N.D. New York
- **Decided:** June 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314992. Public record. Not legal advice.