Boyde v. Barnes

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

JOHNNY WILLIAM BOYDE,

Plaintiff,

5:22-cv-01024

v. (MAD/TWD)

DETECTIVE ANDREW BARNES,

Defendant.

_____________________________________________

APPEARANCES:

JOHNNY WILLIAM BOYDE

Plaintiff, pro se

07001284

Onondaga County Justice Center

555 South State Street

Syracuse, NY 13202

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

The Clerk has sent to the Court for review a pro se complaint filed by Johnny William

Boyde (“Plaintiff”) pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Dkt. Nos. 1, 6.1) Plaintiff,

who is currently confined at the Onondaga County Justice Center, has not paid the filing fee

required for this action and seeks to proceed in forma pauperis (“IFP”). (Dkt. No. 4.)

1 Plaintiff’s original complaint was received on September 30, 2022. (Dkt. No. 1.) By Order

entered September 30, 2022, this case was administratively closed based on Plaintiff’s failure to

comply with the filing fee requirement. (Dkt. No. 2.) Thereafter, Plaintiff filed his IFP

application and inmate notification form, along with a copy of his original complaint and

“amended complaint”, and the Clerk was directed to reopen this action and restore it to the

Court’s active docket. (Dkt. Nos. 3, 4, 5, 6. 7.) At this early juncture, and in deference to

Plaintiff’s pro se status, rather than treat the “amended complaint” as a superseding pleading, the

Court will consider Plaintiff’s “amended complaint” as a supplement to his original complaint

and consider them as a single pleading for purposes of initial review. (Dkt. Nos. 1, 6.)

For the reasons set forth below, Plaintiff’s IFP application is denied, and the undersigned

recommends sua sponte dismissing this action without further leave to amend pursuant to 28

U.S.C. § 1915(g) and 28 U.S.C. §§ 1915(e) and 1915A.

II. IFP APPLICATION

Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the

plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the

Court’s filing fee of four hundred two dollars ($402).2 The Court must also determine whether

the “three strikes” provision of Section 1915(g) bars the plaintiff from proceeding IFP and

without prepayment of the filing fee.3 More specifically, Section 1915(g) provides as follows:

In no event shall a prisoner bring a civil action or appeal a

judgment in a civil action or proceeding under this section if the

prisoner has, on 3 or more prior occasions, while incarcerated or

detained in any facility, brought an action or appeal in a court of

the United States that was dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim upon which relief may

be granted, unless the prisoner is under imminent danger of serious

physical injury.

28 U.S.C. § 1915(g).4 If the plaintiff is indigent and not barred by Section 1915(g), the Court

must also consider whether the causes of action stated in the complaint are, inter alia, frivolous

2 “28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.

09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,

incarcerated individual need not prepay the filing fee . . . at the time of filing, he must

subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his

inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21

(2d Cir. 2010)).

3 The manifest intent of Congress in enacting this “three strikes” provision was to curb prison

inmate abuses and to deter the filing of multiple, frivolous civil rights suits by prison inmates.

Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007). The question of whether a prior dismissal

is a “strike” is a matter of statutory interpretation and, as such, is a question for the Court to

determine as a matter of law. Id. at 442-43.

4 As used in this Section, the term “prisoner” means “any person incarcerated or detained in any

facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations

or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. §

1915(e)(2)(B); see also 28 U.S.C. § 1915A(b).

In this case, Plaintiff has demonstrated economic need and has filed the inmate

authorization form required in this District. (See Dkt. Nos. 4, 5.) Therefore, the Court must now

determine whether the “three strikes” provision bars Plaintiff from proceeding IFP.

A. Determination of “Strikes”

The Court has reviewed Plaintiff’s litigation history on the Federal Judiciary’s Public

Access to Court Electronic Records (“PACER”) Service. See PACER Case Locator,

https://pcl.uscourts.gov/pcl/pages/search/findParty.jsf (last visited Oct. 18, 2022). Plaintiff is a

frequent litigator and, prior to this action, has commenced twelve civil actions in this District.5

Having reviewed Plaintiff’s litigation history, the Court finds that as of the date Plaintiff

commenced this action, he had already accumulated at least “three strikes.” See Boyde v.

Brockway, 9:18-cv-01231, Dkt. No. 10 (N.D.N.Y. Jan. 11, 2019) (dismissing complaint for

failure to state a claim upon which relief may be granted); Boyde v. Green, 9:18-cv-01033, Dkt

No. 7 (N.D.N.Y. Oct. 17, 2018) (same); Boyde v. Uzunoff, 9:21-cv-00741, Dkt. No. 26

(N.D.N.Y. Sept. 23, 2021) (same); Boyde v. Quigley, 9:21-cv-00742, Dkt. No. 9 (N.D.N.Y. Sept.

23, 2021) (same); Boyde v. Onondaga Justice Center, 9:21-cv-00748, Dkt. No. 9 (N.D.N.Y.

of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary

program.” 28 U.S.C. § 1915A(c).

5 See Boyde v. County of Onondaga, 5:16-cv-00555 (N.D.N.Y. May 12, 2016); Boyde v.

Brockway, 9:18-cv-01231 (N.D.N.Y. Oct. 18, 2018); Boyde v. Green, 9:18-cv-01033 (N.D.N.Y.

Jan. 4, 2019); Boyd v. County of Onondaga, 5:19-cv-00150 (N.D.N.Y. Feb. 6, 2019); Boyde v.

City of Syracuse, 5:21-cv-00270 (N.D.N.Y. Mar. 9, 2021); Boyde v. Uzunoff, 9:21-cv-00741

(N.D.N.Y. June 29, 2021); Boyde v. Quigley, 9:21-cv-00742 (N.D.N.Y. June 29, 2021); Boyde v.

Onondaga Justice Center, 9:21-cv-00748 (N.D.N.Y. June 30, 2121);Boyde v. Onondaga County

Justice Center, 9:21-cv-00796 (N.D.N.Y. July 13, 2021); Boyde v. Onondaga County Justice

Center, 9:21-cv-00797 (N.D.N.Y. July 13, 2021); Boyde v. McCarty, 9:21-cv-00837 (N.D.N.Y.

July 23, 2021); Boyde v. Fahey, 5:21-cv-01277 (N.D.N.Y. Dec. 1, 2021).

Sept. 23, 2021) (same); Boyde v. McCarty, 9:21-cv-00837, Dkt. No. 4 (N.D.N.Y. Sept. 23, 2021)

(same); Boyde v. Fahey, 5:21-cv-01277, Dkt. No. 16 (N.D.N.Y. May 26, 2022) (same). Thus,

unless it appears that the “imminent danger” exception to the “three-strikes” rule is applicable to

this action, Plaintiff may not proceed IFP.

B. The “Imminent Danger” Exception

Congress enacted the “imminent danger” exception contained in the final phrase of

Section 1915(g) as a “safety valve” to prevent impending harms to prisoners otherwise barred

from proceeding IFP. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). Generally

speaking, the allegations relevant to this inquiry “are those in which [plaintiff] describes physical

injury, threats of violence, and deprivation of medical treatment.” Chavis v. Chappius, 618 F.3d

162, 165 (2d Cir. 2010).6

“[F]or a prisoner to qualify for the imminent danger exception, the danger must be

present when he files his complaint – in other words, a three-strikes litigant is not excepted from

the filing fee if he alleges a danger that has dissipated by the time a complaint is filed.” Pettus v.

Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510 F.3d 152 (2d

Cir. 2007) (imminent danger claims must be evaluated at the time the complaint is filed, rather

than at the time of the events alleged). In addition, there must be an “adequate nexus between

the claims he seeks to pursue and the imminent danger he alleges.” Pettus, 554 F.3d at 296. In

deciding whether such a nexus exists, the Second Circuit has instructed the courts to consider

6 In Chavis, the Second Circuit described the nature of the Court’s inquiry regarding imminent

danger as follows: “although the feared physical injury must be serious, we should not make an

overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g)

concerns only a threshold procedural question, while [s]eparate PLRA provisions are directed at

screening out meritless suits early on.” Id. at 169-70 (quoting Andrews v. Cervantes, 493 F.3d

1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted).

“(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is

fairly traceable to unlawful conduct asserted in the complaint, and (2) whether a favorable

judicial outcome would redress that injury.” Id. at 298-99. Both requirements must be met in

order for the three-strikes litigant to proceed IFP. Id. Generally speaking, the allegations

relevant to the imminent danger inquiry “are those in which [plaintiff] describes physical injury,

threats of violence, and deprivation of medical treatment.” Chavis, 618 F.3d at 165.

Upon careful review of the complaint and “amended complaint”, the Court finds Plaintiff

has failed to plead facts sufficient to place him within the imminent danger exception provided

by Section 1915(g), which is available “[w]hen a threat or prison condition is real and proximate,

and when the potential consequence is ‘serious physical injury.’” See Flemming v. Kemp, No.

9:09-CV-1185 (TJM/DRH), 2010 WL 3724031, at *2 (N.D.N.Y. Aug. 19, 2010) (citing Lewis v.

Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (The imminent danger exception is available “for

genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.”)).

In this action, Plaintiff alleges wrongdoings related to a grand jury proceeding in

Onondaga County Court in July 2016. (Dkt. No. 1 at 2-5;7 Dkt. No. 6 at 4.) Specifically,

Plaintiff claims that on July 28, 2016, Detective Andrew Barnes (“Defendant”) “testified before

the grand jury falsely, maliciously, and without probable cause” “for the purpose of procuring an

indictment against Plaintiff . . . for three counts of the crimes of failure to register/verity change

of address as a sex offender.” (Dkt. No. 1 at 2-3.) “Solely based on, and in reliance on the false

and perjured testimony of the Defendant”, the grand jury indicted Plaintiff for the three counts.

Id. at 3. “The indictment was designated as Indictment Number 2016-0698-1 and was returned

7 Page references to documents identified by docket number are to the page numbers assigned

by the CM/ECF docketing system maintained by the Clerk’s Office.

in open court on [August 2, 2016], and was duly docketed as Index Number 16-0831.” Id. at 4-

5. Thereafter, on December 1, 2016, “Plaintiff’s first count of the three was dismissed thus

terminating the prosecution in favored to Plaintiff.” Id. at 5.8 Plaintiff claims “the problem”

with Defendant’s testimony during the grand jury proceeding was that “Plaintiff’s designation as

a ‘sex offender’ within the meaning of Correction Law § 168a[1], was vacated by operation of

law upon reversal of Plaintiff’s judgment on [November 14, 2014], and the Plaintiff did not

become a ‘sex offender’ (again) until the Plaintiff was sentenced on July 21, 2015.” (Dkt. No. 6

at 4.) Plaintiff seeks significant monetary damages. (Dkt. No. 1 at 5-6; Dkt. No. 6 at 5.)

Even liberally construed, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), Plaintiff’s

allegations do not plausibly suggest that he was at risk of an “imminent danger of serious

physical injury” when he filed this action in September 2022. See Pettus, 554 F.3d at 296

(stating that risk of serious physical harm must exist at the time the complaint is filed).

Accordingly, Plaintiff’s IFP application is denied. (Dkt. No. 4.)

Moreover, because Plaintiff’s claim(s) do not involve a physical injury, it is impossible

for Plaintiff to demonstrate that any of the events described in the amended complaint placed

him at risk of an “imminent danger of serious physical injury” when he filed this action. Under

such circumstances, the Court need not grant Plaintiff leave to amend his pleading further before

requiring him to pay the required filing fee or face dismissal. See Chavis, 618 F.3d at 170 (leave

need not be granted where even a liberal reading of the complaint fails to give “any indication

that a valid claim might be stated”); Carolina v. Rubino, 644 Fed. App’x 68, 73, (2d Cir. 2016)

(summary order) (concluding that the district court “did not abuse its discretion by dismissing

8 Plaintiff attaches, inter alia, a copy of Decision/Order dated December 1, 2016, by the Hon.

Walter W. Hafner, Jr., Acting Onondaga County Court Judge, dismissing count 1 of the

indictment as an exhibit to the complaint. (Dkt. No. 1 at 11-18.)

Carolina’s complaint without granting leave to amend Carolina’s complaint” because the

complaint “did not present the possibility of [plaintiff] stating a valid imminent-danger claim”).

Ordinarily, the finding that Plaintiff does not qualify for the “imminent danger” exception

to the “three-strikes” rule would end the Court’s discussion, and Plaintiff, in light of his pro se

status, would likely be afforded an opportunity to prepay the full filing of four hundred and two

dollars ($402.00) to continue with this action. However, as is discussed more completely below,

because the Court has an overarching obligation to determine that a claim is not legally frivolous

before permitting a pro se plaintiff’s complaint to proceed, in this instance, the Court

recommends dismissal without leave to pay the filing fee. See, e.g., Fitzgerald v. First East

Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may

sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the

statutory filing fee).

III. SUFFICIENCY OF THE COMPLAINT

A. Legal Standards

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

Similarly, this Court must review any “complaint in a civil action in which a prisoner9 seeks

redress from a governmental entity or officer or employee of a governmental entity” and must

9 As used in this Section, the term “prisoner” means “any person incarcerated or detained in any

facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations

of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary

program.” 28 U.S.C. § 1915A(c).

“identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the

complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted;

or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §

1915A. The Court must also dismiss a complaint, or portion thereof, when the Court lacks

subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant’s complaint is to be

held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed

Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

“An action is frivolous when either: (1) the factual contentions are clearly baseless such

as when the claims are the product of delusion or fantasy; or (2) the claim is based on an

indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437

(2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim

lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the

complaint.” Id.

To survive dismissal for failure to state a claim, a complaint must contain a short and

plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2).

This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the

claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It

must “give the defendant fair notice of what the claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555; see also Fed. R. Civ. P. 8(a)(2).

In determining whether a complaint states a claim upon which relief may be granted, “the

court must accept the material facts alleged in the complaint as true and construe all reasonable

inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).

“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

B. Application

Plaintiff brings this action pursuant to Section 1983, which “provides a cause of action

for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’

of the United States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42

U.S.C. § 1983). “To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) that

some person has deprived him of a federal right, and (2) that the person who has deprived him of

that right acted under color of state law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). Having

carefully reviewed Plaintiff’s amended complaint, the Court recommends that it be sua sponte

dismissed in its entirety pursuant to 28 U.S.C. §§ 1915(e) and 1915A.

Here, as set forth above, Plaintiff claims Defendant testified before a grand jury “falsely,

maliciously, and without probable cause” that Plaintiff had “committed three counts of the crime

of failure to register/verify change of address as a sex offender[.]” (Dkt. No. 6 at 4.) Witnesses

are, however, absolutely immune from liability under Section 1983 for damages for their

testimony, even if their testimony was false. See Rehberg v. Paulk, 566 U.S. 356, 366-69

(2012); Briscoe v. LaHue, 460 U.S. 325 (1983).

In Rehberg, the Supreme Court held that “a grand jury witness has absolute immunity

from any § 1983 claim based on the witness’ testimony.” 566 U.S. at 369. This immunity

attaches even if the testimony is false and given by a police officer. See Adamou v. Doyle, 707

F. App’x 745, 746 (2d Cir. 2018) (noting that under Rehberg, “a grand jury witness, including a

law enforcement officer, ‘has absolute immunity from any § 1983 claim based on the witness’

testimony,’ even if that testimony is perjurious” (quoting Rehberg, 566 U.S. at 369)).

Accordingly, Defendant is entitled to absolute immunity. See, e.g., Burdick v. Swarts,

No. 5:12-CV-1711 (NAM/DEP), 2019 WL 1409938, at *7 (N.D.N.Y. Mar. 28, 2019); Jenkins v.

Cty. of Washington, 126 F. Supp. 3d 255 (N.D.N.Y. 2015) (police officers entitled to absolute

immunity from liability for their alleged conduct of giving false testimony before grand jury and

during criminal trial in § 1983 action against officers brought by arrestee who was prosecuted for

and acquitted of drug offenses). Therefore, the Court recommends dismissing this action

because it is frivolous, fails to state a claim on which relief may be granted, and seeks monetary

relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e) and

1915A.10

Generally, when the court dismisses a pro se complaint sua sponte, the court should

afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be

10 Additionally, “[w]hen a [plaintiff] seeks damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of

his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.” Heck v. Humphrey,

512 U.S. 477, 487 (1994). It is unclear whether Plaintiff’s current confinement at the Onondaga

County Justice Center is related to this action. To the extent Plaintiff alleges he was wrongfully

convicted as a result of Defendant’s testimony at the grand jury proceeding, Plaintiff’s pursuit of

money damages may also be barred by the favorable termination rule in Heck v. Humphrey.

denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,

131 (2d Cir. 1993).

The defects in Plaintiff’s Section 1983 claims against Defendant are substantive and

would not be cured if afforded an opportunity to amend. Therefore, the Court recommends

dismissal of this action without leave to replead.

Lastly, as noted, Plaintiff is a frequent pro se litigator in this District and has a history of

filing IFP complaints dismissed on initial review for failure to state a claim upon which relief

may be granted. Plaintiff is cautioned that the filing of vexatious, harassing, or duplicative

lawsuits may result in the imposition of sanctions, including limitations on his ability to file

without prior permission of the Court. See Ajamian v. Nimeh, No. 14-CV-0320 (GTS), 2014 WL

6078425, at *3 (N.D.N.Y. Nov. 13, 2014) (“[A] federal district court may impose reasonable

filing restrictions on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and

its inherent authority to control and manage its own docket so as to prevent abuse in its

proceedings.”); see also In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff

has demonstrated a “clear pattern of abusing the litigation process by filing vexatious and

frivolous complaints,” a “leave to file” requirement may be instituted by the court as an

appropriate sanction); Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a

history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions,

including restrictions on future access to the judicial system.”).

WHEREFORE, for the reasons stated herein, it is hereby

ORDERED that Plaintiff’s IFP application (Dkt. No. 4) is DENIED; and it is further

RECOMMENDED that this action be DISMISSED IN ITS ENTIRETY WITHOUT

LEAVE TO REPLEAD pursuant to 28 U.S.C. §§ 1915(e) and 1915A; and it is hereby

ORDERED that the Clerk serve a copy of this Order and Report-Recommendation,

along with copies of the unpublished decisions cited herein in accordance with Lebron v.

Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.

Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen days within which to file written

objections to the foregoing report.!! Such objections shall be filed with the Clerk of the Court.

FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL

PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing

Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

IT IS SO ORDERED.

Dated: October 20, 2022

Syracuse, New York La : □ 4

Theérése Wiley Dancks

United States Magistrate Judge

Tf you are proceeding pro se and are served with this Order and Report-Recommendation by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date the Order and Report-Recommendation was mailed to you to serve

and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

12

2010 WL 3724031

reasons, it is recommended that defendants’ motion be

granted.

Fa KeyCite Yellow Flag - Negative Treatment

Declined to Extend by Lewis v. Huebner, S.D.N.Y., March 18, 2019 2

Flemming is familiar with the litigation process,

2010 WL 3724031 having filed over forty federal cases in courts

Only the Westlaw citation is currently available. in the Second Circuit with nineteen of these

United States District Court, being civil rights cases in the Northern District.

N.D. New York. See US. Party/Case Index (visited Aug. 11,

2010) < http://pacer . uspci.uscourts.gov/cgi-bin/

Woodrow FLEMMING, Plaintiff, dquery.pl>. Flemming's lawsuits all appear to relate

V. to his incarceration in DOCS facilities

Debbie KEMP; Jeffrey Hyde; George Waterson; 3 □

Correctional Officer John A. Tatro; Correctional Officer The motion is made on behalf’ of all remaining

Darrin C. Carrigeux; Correctional Officer Todd C. defendants except Carrigeux, Eddy, and Herbert,

who have never been served with process or

Manley; Leo Palmer; Correctional Officer Wayne I. otherwise appeared in this case. See Dkt. Nos. 13,

Palmer; Correctional Officer Kevin Eddy; Correctional 15.

Officer Jerry J. Herbert; and Terry James, Defendants.

No. 09-CV-1185 (TIM/DRH). I. Background

Aug. 19, 2010. The facts are related herein in the light most favorable to

Flemming as the non-moving party. See Sheppard v. Beerman,

Attorneys and Law Firms 18 F 3d 147, 150 (2d Cir.1994).

WOODROW FLEMMING, Malone, NY, pro se. . oo,

Flemming proceeds in this action in forma pauperis (“IFP”).

Hon. Andrew M. Cuomo, New York State Attorney General, Dkt Nos. 3, 5. Flemming's second amended complaint and

Aaron M. Baldwin, Esq., Assistant Attorney General, Albany, Subsequently filed motion papers were extremely difficult to

NY, for Defendants. decipher and were nearly illegible. 4 Thus, from the Court's

inspection and attempted construction of the allegations, it

appears that all of the actions in dispute occurred while

REPORT-RECOMMENDATION AND ORDER | Flemming was incarcerated at Upstate Correctional Facility

(“Upstate”).

| This matter was referred to the undersigned for 4

report and recommendation pursuant to 28 U.S.C. Flemming has been instructed by the undersigned,

§ 636(b) and N.D.N.Y.L.R. 72.3(c). and many other judges in this district, that his

papers need to be either typewritten or in legible

DAVID R. HOMER, United States Magistrate Judge. handwriting. See, e.g., Flemming v. Goord, No. 06—

CV-562, 2007 WL 3036845, at *1 n. 2 (citing

*1 Plaintiff pro se Woodrow Flemming (“Flemming”), an cases) (Dkt. No. 33-9).

inmate mn the custody of the New York State Department of Flemming contends that on September 5, 2005, his Eighth

Correctional Services ( DOCS ) brings this action pursuant Amendment rights were violated when defendants (1) used

to 42 U.S.C. § 1983 alleging that various DOCS employees . . .

: excessive force to enter and extract him from his cell,

violated his constitutional rights under the First, Fourth, (2) were deliberately indifferent to his medical conditions

Eighth, and Fourteenth Amendments.” Second Am. Compl. when deciding to deploy chemical agents into the cell, (3)

(Docket No. 9). Presently pending is defendants' motion > were deliberately indifferent to the serious medical needs

to dismiss pursuant to 28 U.S.C. § 1915(g). Dkt No. 33. he developed after the use of force, (4) failed to protect or

Flemming opposes the motion. Dkt. No. 34. For the following intervene during the course of the excessive force, and (5)

subjected him to unconstitutional conditions of confinement

him from having his medical machine, placing him on a (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).

restricted diet, and depriving him of regular contact with Malicious claims are those filed with the intent to hurt or harm

others and his personal effects. Second Am. Compl. at 7–9, another. Id. (citations omitted). The failure to state a claim

12–15; see also Dkt. No. 9 at 21–26, 34–35, 37, 42–43, 47, applies a parallel definition from Fed.R.Civ.P. 12(b)(6), but “it

63, 71–75, 79–80, 85, 91, 93–94, 101–111 (exhibits allegedly does not follow that a complaint which falls afoul of the [12(b)

pertaining to some, but not all, of the Eighth Amendment (6) motion to dismiss] standard will invariably fall afoul of

violations). Flemming contends that defendants undertook the [§ 1915(g) standard].” Neitzke, 490 U.S. at 326; see also

these actions pursuant to a conspiracy, in retaliation for Tafari, 473 F.3d at 442 (citations omitted).

his proclivity to file grievances at the facility. Second Am.

Compl. at 8, 15; see also Dkt. No. 9 at 32–33, 44, 46, 48– 7 The three-strikes provision was adopted as part

50, 57–62, 64, 66, 68–70, 76–78, 81–84, 86–90, 92, 97–100 of the Prison Litigation Reform Act (“PLRA”),

(exhibits showing some of the grievances filed), Moreover, Pub.L. No. 104–134, 110 Stat. 1321 (1995), which

Flemming contends that during the use of force incident, had as its principal purpose deterring frivolous

his cell was searched in violation of his Fourth Amendment prisoner litigation. Nicholas v. Tucker, 114 F.3d 17,

rights. Second Am. Compl. at 7.6 Lastly, Flemming contends 19 (2d Cir.1997).

that (1) his removal from a medical unit to SHU violated his *2 This “three-strikes” provision contains a narrow

due process rights, (2) he was deprived of due process during exception which permits suits, notwithstanding prior

disciplinary hearings, and (3) defendants illegally confiscated dismissals, when the prisoner is “under imminent danger

his property. Second Am. Compl. at 8–11. of serious physical injury.” 28 U.S.C. § 1915(g); see also

Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.2002) (applying

5 SHUs exist in all maximum and certain medium imminent danger exception “[w]hen a threat or prison

security facilities. The units “consist of single- condition is real and proximate, and when the potential

occupancy cells grouped so as to provide separation consequence is ‘serious physical injury.’ ”). For the exception

from the general population ....“ N .Y. Comp.Codes to apply, “the danger must exist at the time the complaint is

R. & Regs. tit. 7, § 300.2(b) (2007). Inmates are filed ... [since] Congress indicated that it wanted to include

confined in a SHU as discipline, pending resolution a safety valve ... to prevent impending harms, not those

of misconduct charges, for administrative or harms that had already occurred.” Malik v. McGinnis, 293

security reasons, or in other circumstances as F.3d 559, 562–63 (2d Cir.2002). Thus, courts must find “a

required. Id. at pt. 301. nexus between the imminent danger a three-strikes prisoner

alleges ... and the legal claims asserted in his complaint.”

6 While no previous mention was made of a First Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir.2009). In

Amendment denial of access claim in the second order to establish such a nexus, inmates must show that (1)

amended complaint, Flemming did reference the the “imminent danger of serious physical injury ... is fairly

allegedly illegal search in which documents were traceable to unlawful conduct asserted in the complaint and

confiscated. These documents were identified, in (2) ... a favorable judicial outcome would redress that injury.”

a subsequent submission, as legal documents. As Id. (emphasis in original).

such, and pursuant to the instructions to liberally

construe such complaints, the First Amendment Less than three years ago, Flemming's IFP status was revoked

violation has also been deemed pled in the amended under § 1915(g) pursuant to a report-recommendation written

complaint. by the undersigned. See Flemming v. Goord, No. 06–CV–

562, 2007 WL 3036845 (N.D.N.Y. Oct. 16, 2007) (Dkt. No.

33–9). Moreover, Flemming's complaints have continued to

II. Discussion be dismissed pursuant to § 1915(g) in this district for the

past two years. See Flemming v. The State of New York,

Under 28 U.S.C. § 1915(g), prisoners are barred from

No. 09–CV–465 (NAM) (N.D.N.Y. June 8, 2009) (explaining

proceeding IFP after three or more prior claims have been

that Flemming as been subject to the three-strike rule's

dismissed as frivolous, malicious, or for failing to state a

enforcement on multiple occasions in this district) (citations

7

(Dkt. No. 33–11); Flemming v. Goord, No. 06–CV–1244

(LEK) (N.D.N.Y. Jan. 15, 2008) (holding that Flemming “is district courts outside of this Circuit

well aware of the ‘three-strikes' rule ... [as he] has had [it] ... have held that the mere fact

enforced against him in this district.”) (citations omitted) that multiple physical assaults have

(Dkt. No. 33–10). As these decisions demonstrate, Flemming occurred in the past does not, in and

has previously had at least three cases dismissed as frivolous of itself, constitute an imminent danger

or failing to state a claim and was fully aware that he had on the date of filing ... [U]nless the

“struck out” in the Northern District. See also Flemming v. prospect of such a future assault is so

New York, No. 05–CV–406 (DNH), at 2–3 (N.D.N.Y. Oct. 25, specific and/or likely as to be deemed

2005); Flemming v. New York, No. 06–CV–55 (DNH), at 2–3 real, such an allegation will not suffice

(N.D.N.Y. Apr. 13, 2006); and Flemming v. Wright, No. 06– to allege an ‘imminent danger’ on

CV–86 (GLS)(GJD), at 2–3 (N.D.N.Y. Apr. 28, 2006). the date of the filing. This point

of law is consistent with the rather

Additionally, Flemming has failed specifically to plead facts well-established rule that the imminent

sufficient to place him within the imminent danger exception danger claimed by the inmate must

provided by § 1915(g), which is applicable “[w]hen a threat be real, and not merely speculative or

or prison condition is real and proximate, and when the hypothetical.

potential consequence is ‘serious physical injury.’ “ Lewis,

279 F.3d at 531. Flemming proffers vague, general, and

unspecified allegations of harm. See, e.g., Dkt. No. 38 at Id. (internal quotation marks and citations omitted) (emphasis

2 (“Plaintiff['s] condition is unsafe and cruel and unusual in original). Therefore, Flemming's contentions of constant

punishment. Plaintiff is in constant fear of violence by fear of harm, without anything pointing to a specific threat of

defendants and other staff in retaliation and conspiracy, this harm or identifiable danger to his health, are insufficient to

put Flemming in imminent danger to plaintiff['s] well-being establish a danger that is neither speculative nor hypothetical.

and without the opportunity to seek other promising future.”).

However, such allegations were contained in Flemming's Moreover, the majority of Flemming's submissions do not

additional submissions, and not within the complaint, where address the imminent danger exception, as they primarily

the court is instructed to look to determine whether an inmate contain legal arguments about the substantive issues. See

has qualified for the imminent danger exception. See Avent v. Dkt. No. 34 (enclosing over seventy pages of exhibits and a

Fisher, No. 07–CV–1135 (DNH/GHL), 2008 WL 5000041, memorandum of law outlining the legal claims and arguments

at *3 (N.D.N.Y. Nov. 20, 2008) (“[W]hen determining surrounding the constitutional merits). However, when the

whether a prisoner has qualified for the ‘imminent danger’ IFP argument is addressed outside of the vague sentence

exception, courts look at the non-conclusory allegations in previously identified, Flemming contends that money should

the plaintiff's complaint.”) (citations omitted). The complaint not be a motivating factor for dismissal, completely omitting

was void of any such allegations. Therefore, Flemming any proffer of reasons why he is in imminent danger. Dkt. No.

failed to establish any plausible indication of imminent harm, 40 at 3–4 (“The money is not going to change the case, so

especially considering the fact that the excessive force and whether if the money is not paid, it will be paid ... Plaintiff

medical treatment provided immediately thereafter, occurred ask for counsel pro bono and then the lawyer can pay for this

four years prior to the filing of the amended complaint. case to move forward.”).

*3 Even had these allegations been contained in the Flemming's concerns that the imminent danger provision and

complaint, they would be insufficient to establish the IFP requirements would foreclose important cases are without

imminent danger exception due to their lack of plausibility merit. The Second Circuit has already determined such

and specificity. See Id., 2008 WL 5000041, at *5–6. As arguments unavailing because the imminent danger exception

explained in Avent, “does not prevent prisoners from filing civil actions, it merely

prohibits them from enjoying [IFP] status. The imminent

danger exception, which permits ... successive filings that

(2d Cir.2007). Accordingly, Flemming is not foreclosed from 1. Flemming's IFP status be REVOKED; and

bringing the case if he provides the filing fee or if he had

specifically pled imminent danger, an exception to which his

2. This action be DISMISSED as to all claims and all

defendants unless Flemming pays the filing fee of $350.00

contentions have failed to conform.

within thirty (30) days of the entry of a final order by the

district court.

Furthermore, dismissal is not precluded by the fact that

Flemming has already been granted IFP status in this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may

When a court becomes aware of three prior strikes only after

lodge written objections to the foregoing report. Such

granting IFP status, it is appropriate to revoke that status

objections shall be filed with the Clerk of the Court

and bar the complaint under § 1915(g). See McFadden, 16

“within fourteen (14) days after being served with a copy

F.Supp.2d at 247. Therefore, it is recommended that (1)

of the ... recommendation.” N.Y.N.D.L.R. 72 .1(c) (citing

the order granting IFP status to Flemming (Dkt. No. 5)

be vacated, and (2) Flemming's complaint be conditionally

28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT

dismissed unless he pays the filing fee of $350.00 within thirty TO THIS REPORT WITHIN FOURTEEN DAYS WILL

(30) days of the entry of a final order by the district court.

PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892

F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

72, 6(a), 6(e).

III. Conclusion

*4 For the reasons stated above, it is hereby All Citations

RECOMMENDED that defendants' motion to dismiss (Dkt.

No. 33) be GRANTED and that: Not Reported in F.Supp.2d, 2010 WL 3724031

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

2019 WL 1409938 II. BACKGROUND

Only the Westlaw citation is currently available. A. Evidence Before the Court

United States District Court, N.D. New York. On June 1, 2018, Commissioner Swarts moved for summary

judgment, (Dkt. No. 201), and included a Statement of

Steven D. BURDICK, Plaintiff,

Material Facts pursuant to Local Rule 7.1(a)(3), (Dkt. No.

v. 201-1). The motion also notified Plaintiff of the consequences

David SWARTS, James F. Darling, Ruell Todd, Oswego of not properly responding, pursuant to Rule 56(e) of

County, and John and Jane Doe 1-10, Defendants. the Federal Rules of Civil Procedure and Local Rule

56.2. (Dkt. No. 201, p. 1). However, Plaintiff's opposition

5:12-cv-1711 (NAM/DEP)

does not specifically respond to Commissioner Swarts's

|

Statement of Material Facts; rather Plaintiff “relies on his

Signed 03/28/2019

statement of material facts contained within his third amended

complaint.” (Dkt. No. 208, p. 2). Similarly, on July 31, 2018,

Attorneys and Law Firms

the County Defendants moved for summary judgment, (Dkt.

Steven D. Burdick, 4102 State Route 3, Fulton, New York No. 209), and included a Statement of Material Facts, (Dkt.

13069, Plaintiff, pro se. No. 209-20). Counsel affirms that Plaintiff was served with

the Court's form Notification of the Consequences of Failing

Office of Frank W. Miller, Frank W. Miller, Esq., of to Respond to a Summary Judgment Motion, (Dkt. No.

counsel, Christopher M. Militello, Esq., of counsel, 6575 210). Once again, Plaintiff's opposition does not specifically

Kirkville Road, East Syracuse, New York 13057, Attorney for respond to the movants' Statement of Material Facts; rather

Defendants Oswego County, Todd, and Darling. Plaintiff sets out his own version of the facts in memoranda

of law, without citing any evidence, and attaches several

Office of Attorney General, State of New York, Timothy P. exhibits. (Dkt. Nos. 216, 216-1). Plaintiff later submitted an

Mulvey, Esq., of counsel, 615 Erie Boulevard West, Suite additional memorandum, (Dkt. No. 220), which Defendants

102, Syracuse, New York 13204, Attorney for Defendant move to strike as “an improper surreply filed without

Swarts. leave.” (Dkt. No. 222). The additional memorandum appears

to be simply a notarized version of an earlier one. (See

Dkt. No. 216). Neither memorandum is sworn under oath,

MEMORANDUM-DECISION AND ORDER or declared under penalty of perjury pursuant to 28 U.S.C.

§ 1746. Therefore, neither memorandum is admissible as

Norman A. Mordue, Senior U.S. District Judge

evidence. See also Hughes v. Elmira College, 584 F.Supp.2d

I. INTRODUCTION 588, 590 (W.D.N.Y. 2008) (finding that the pro se plaintiff's

*1 Plaintiff Steven D. Burdick, who at one point in this statement and memorandum of law were unsworn and

litigation was represented by counsel but is now proceeding inadmissible). Accordingly, Defendants' motion to strike is

pro se, brings this action under 42 U.S.C. § 1983 asserting denied as moot.

claims against Defendants David Swarts, the former New

York State Commissioner of Motor Vehicles (“Commissioner Under these circumstances, the Court may accept Defendants'

Swarts”), Oswego County, retired Oswego County Sheriff statements of facts as true where appropriate, supported by

Ruell Todd (“Sheriff Todd”), and Oswego County Deputy the record, and unchallenged by Plaintiff with admissible

Sheriff James F. Darling (“Deputy Darling”) (collectively, the evidence.1 See Champion v. Artuz, 76 F.3d 483, 485 (2d

“Oswego County defendants”), related to a traffic stop and Cir. 1996) (reasoning that even pro se litigants “should be on

subsequent arrest on November 22, 2009. (Dkt. No. 157). notice from the very publication of Rule 56(e) that a party

Now before the Court are Defendants' motions for summary faced with a summary judgment motion may not rest upon

judgment. (Dkt. Nos. 201, 209). Plaintiff opposes the motions. the mere allegations or denials of the party's pleading and that

(Dkt. Nos. 208, 216, 220). Defendants' motions are granted, if the party does not respond properly, summary judgment, if

for the reasons that follow. appropriate, shall be entered against him”) (quoting Graham

v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)); Riehl v. Martin,

a party has failed to respond to the movant's statement of 8). Plaintiff pulled the van over into the parking lot. (Id., ¶ 9).

material facts in the manner required under N.D.N.Y. L.R. Deputy Darling asked Plaintiff about the missing inspection

7.1(a)(3), the facts in the movant's statement will be accepted sticker. (Id., ¶ 10). Plaintiff told Deputy Darling that the

as true (1) to the extent they are supported by evidence in the sticker must have fallen off. (Id., ¶ 11). Deputy Darling asked

record, and (2) the nonmovant, if proceeding pro se, has been Plaintiff to provide proof that the van had been inspected. (Id.,

specifically advised of the possible consequences of failing ¶ 12). Plaintiff told Deputy Darling that he did not have the

to respond to the motion.”), report-recommendation adopted, inspection paperwork. (Id., ¶¶ 13–14).

2014 WL 1289601, 2014 U.S. Dist. LEXIS 42870 (N.D.N.Y.

Mar. 31, 2014). Deputy Darling told Plaintiff that he would give Plaintiff a

ticket, and Deputy Darling asked Plaintiff for his driver's

1 Although Plaintiff is now appearing pro se, it license, registration card, and proof of insurance. (Id., ¶¶ 15–

is worth noting that this case is the second one 16). Plaintiff did not have his driver's license with him, and he

Plaintiff has pursued to the summary judgment did not have a current valid insurance card for the van or the

stage in federal court in the Northern District of registration card for the van. (Id., ¶¶ 17–19). Deputy Darling

New York. See Burdick v. Kurilovitch, et al., No. went to his patrol car and checked a computer system for

14 Civ. 1254. vehicle and personal data from the DMV concerning Plaintiff.

(Id., ¶ 20). The information returned in response to the inquiry

*2 While the Court “is not required to consider what the was that Plaintiff's driver's license was currently suspended.

parties fail to point out,” in deference to Plaintiff's pro se (Id., ¶ 21).

status and out of an abundance of caution, the Court has

nevertheless conducted “an assiduous review of the record” to When Deputy Darling returned to the van, he found Plaintiff

determine whether there is evidence that might support any of sitting in the driver's seat of the van with his eighteen-month

Plaintiff's claims. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 old child in his lap. (Dkt. No. 209-3, p. 10). According

(2d Cir. 2001). Therefore, the following facts are largely taken to Deputy Darling, he told Plaintiff that his license was

from Defendants' statements of facts and supporting evidence, suspended and that he had to place the child in the passenger's

Plaintiff's deposition and trial testimony, and the evidence seat and to step out of the van. (Id.). Deputy Darling testified

submitted by Plaintiff, to the extent it is in admissible form. that Plaintiff did not put the child aside or get out of the van as

instructed, but rather said that his license was not suspended,

and it was “taken care of.” (Id.). Deputy Darling testified that

B. Plaintiff's License Suspension

Plaintiff repeatedly refused to get out of the van, saying “No,

Plaintiff is a tow truck operator who resides in Oswego

I'm not getting out.” (Id., p. 13). Deputy Darling testified that

County, New York. (Dkt. No. 201-1, ¶ 6). On January 14,

Plaintiff continued to hold the child. (Id.).

2009, Plaintiff was issued a traffic ticket for towing on the

New York State Thruway without a permit. (Dkt. No. 209-2).

According to Deputy Darling, Plaintiff then stepped out of

Thereafter, Plaintiff's driver's license was suspended on or

the van with the child, lifted the child up away from his body

about July 3, 2009. (Id.). Plaintiff testified that he paid the

toward Deputy Darling, pulled the child back to his body, got

ticket, faxed the receipt to the Fulton Department of Motor

back in the van, and sat back in the driver's seat with the child

Vehicles (“DMV”), and was told “you're all set.” (Dkt. No.

on his lap again. (Id.). Plaintiff then continued to argue with

209-4, pp. 15–16).

Deputy Darling. (Id.). Deputy Darling testified that he had to

tell Plaintiff to step out of the van a total of ten times. (Id., p.

C. Plaintiff's Arrest 15). Eventually, Plaintiff put the child in the passenger's seat,

On November 22, 2009, Plaintiff drove a van to a vehicle and Deputy Darling arrested him and took him into custody.

checkpoint on State Route 49 in Central Square, Oswego (Id., p. 16).

County, which was monitored by Defendant Darling, a deputy

employed by Defendant Oswego County in its Sheriff's *3 Plaintiff admitted that, on November 22, 2009, when

Department. (Dkt. No. 209-20, ¶¶ 2, 5–6). The van Plaintiff Deputy Darling first instructed him to put the child aside and

drove had no inspection sticker on it. (Id., ¶ 7). Deputy step out of the van because he was under arrest, he did not

Darling noticed the inspection sticker was missing and put the child aside or get out of the vehicle, and instead told

Van Buren, New York had been paid. (See Dkt. No. 209-4, 2) endangering the welfare of a child; 3) obstruction of

pp. 15–18; Dkt. No. 209-5, pp. 2–3). Plaintiff further testified governmental administration in the second degree; and 4)

that Deputy Darling informed him again that he was under vehicle registration and inspection violations. (Dkt. No.

arrest and to put his child to the side, but Plaintiff refused 209-13).

and proposed that Deputy Darling call a tow truck and just

give Plaintiff a traffic ticket. (Dkt. No. 209-5, p. 3). Plaintiff Following his arraignment, Plaintiff called Defendant Todd,

testified that he had been pulled over for the same thing three the Sheriff of Oswego County, and asked to meet with him

months earlier, that he had gone to the DMV and taken care concerning the arrest and charges. (Dkt. No. 209-20, ¶¶ 3, 39).

of it, and that he told Deputy Darling “it's a mistake.” (Id.). Sheriff Todd advised Plaintiff it would not be in Plaintiff's best

Plaintiff testified that Deputy Darling again told him that interest for them to meet, and that any admissions Plaintiff

he was under arrest and to put the child aside, but Plaintiff made to Sheriff Todd could be used against him in the criminal

refused because he wanted to first put the child in a car seat. case. (Id., ¶ 39). Plaintiff insisted, and they met on November

(Id.). Plaintiff testified that Deputy Darling again repeated the 24, 2009. (Id., ¶¶ 39–40). Sheriff Todd began the meeting

instruction, and Plaintiff finally got out. (Id.). by reminding Plaintiff that any admissions he made could be

used against him. (Id., ¶ 41). During the meeting, Plaintiff

According to Deputy Darling, Plaintiff's positioning of made several admissions, which Sheriff Todd reported to the

the child delayed the arrest because Deputy Darling was Oswego County District Attorney's Office in the form of a

concerned for the child's safety. (Dkt. No. 209-3, p. 17). “Notice of Intent to Use Admission or Confession” pursuant

Deputy Darling testified that, before the situation escalated, to New York Criminal Procedure Law § 710.30 (or “710.30

he had intended to arrest Plaintiff and take him into custody in notice”). (Dkt. No. 209-12). The 710.30 notice stated in

his patrol car on a charge of aggravated unlicensed operation relevant part: “Admissions of no insp. sticker, no letter saying

of a motor vehicle in the third degree, issue him traffic suspension was lifted. Admissions to holding child in front of

tickets, and then release him. (Id., pp. 15–16). After Plaintiff him and refusing to get out of van.” (Id.). Later, on August

resisted his instructions to step out of the van and put the 26, 2010, Defendants Darling and Todd also testified at a

child aside, and then held the child between himself and the Huntley hearing, which concerned the admissibility of certain

officer, Deputy Darling decided to arrest Plaintiff and take statements made by Plaintiff. (Dkt. No. 209-11).

him into custody for arraignment upon charges of obstruction

of governmental administration and endangering the welfare *4 On August 26, 2011, Plaintiff appeared for a criminal

of a child, as well as the aggravated unlicensed operation of trial before a jury on charges of endangering the welfare

a motor vehicle charge. (Id.). of a child, obstruction of governmental administration, and

vehicle registration and inspection violations. (Dkt. Nos.

According to Ronald L. Casselman, on November 22, 2009, 209-3, 209-4). Plaintiff claims that the aggravated unlicensed

he received a call from the police to “go to Central Square and operation charge was dismissed by the judge in his criminal

bring the Burdick company tow truck to tow Steve Burdick's case a couple weeks before the trial. (Dkt. No. 209-6, p. 2).

car and get the kids as Steve was an unlicensed driver and Defendants Darling and Todd testified at the trial concerning

could not operate the car.” (Dkt. No. 216-1, p. 23). When the events leading up to Plaintiff's arrest on November 22,

Casselman arrived, he found Plaintiff handcuffed in the back 2009, and Plaintiff's admissions on November 24, 2009. (Dkt.

of an Oswego County Sheriff's car. (Id.). Casselman states Nos. 209-3, 209-4).

that he “told the Sheriff there must be some mix-up [about the

suspended license] because Steve had paid that fine.” (Id.). Among other things, Deputy Darling testified that he told

Plaintiff's wife arrived at the scene and took the kids, while Plaintiff to step out of the vehicle ten times before Plaintiff

Casselman towed Plaintiff's vehicle. (Id.). complied, and that Plaintiff held onto the child, delaying

Plaintiff's arrest. (Dkt. No. 209-3, pp. 15–17). Among other

things, Sheriff Todd testified that Plaintiff admitted that: he

D. Plaintiff's Prosecution did not have paperwork with him on November 22, 2009

Plaintiff was arraigned the same day as his arrest, November showing that he had fixed his suspended license; that he

22, 2009, at approximately 2:25 p.m., which was not long refused to exit the vehicle, and that “he picked the child up and

after Deputy Darling brought him to the police station. (Dkt. put it in front of him.” (Dkt. No. 209-4, pp. 10–11). Sheriff

Plaintiff “just didn't do what he was asked to do.” (Id., p. 10). judgment may be granted only if all the submissions taken

together “show that there is no genuine issue as to any

On August 27, 2011, a jury convicted Plaintiff of obstruction material fact and that the moving party is entitled to judgment

of governmental administration, as well as failure to produce as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,

a registration certificate and operating an uninspected motor 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord Anderson

vehicle. (Dkt. No. 209-4, pp. 23–24). The jury acquitted v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505,

Plaintiff of endangering the welfare of a child. (Id.). 91 L.Ed.2d 202 (1986). The moving party bears the initial

burden of demonstrating “the absence of a genuine issue of

material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

E. Plaintiff's Appeal A fact is “material” if it “might affect the outcome of the

Plaintiff appealed his convictions, and on March 3, 2014, an suit under the governing law,” and is genuinely in dispute

Oswego County court overturned the convictions due to an “if the evidence is such that a reasonable jury could return

error in jury selection by the judge in the criminal trial. (Dkt. a verdict for the nonmoving party.” Anderson, 477 U.S. at

No. 209-9). The court rejected various arguments as to the 248, 106 S.Ct. 2505; see also Jeffreys v. City of New York.,

merits of the charges and remanded for a new trial. (Id.). 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The

By decision dated April 26, 2016, a judge of the Hastings movant may meet this burden by showing that the nonmoving

Town Court dismissed the surviving charges (obstruction of party has “fail[ed] to make a showing sufficient to establish

governmental administration, failure to produce a registration the existence of an element essential to that party's case,

certificate, and operating an uninspected motor vehicle) in the and on which that party will bear the burden of proof at

interests of justice pursuant to New York Criminal Procedure trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also

Law § 170.40. (Dkt. No. 209-10). Among other things, the Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir.

judge found that: 2013) (summary judgment appropriate where the non-moving

party fails to “come forth with evidence sufficient to permit

1) No arrest would have arisen should the DMV database

a reasonable juror to return a verdict in his or her favor on

been properly updated.

an essential element of a claim”) (internal quotation marks

2) The only harm caused by the offense was to the equities omitted).

of the Defendant for the costs of his defense, which could

be the responsibility of the NYS DMV. *5 If the moving party meets this burden, the nonmoving

party must “set forth specific facts showing ... a genuine

3) Any evidence in this case is secondary to the cause and issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct.

effect relationship of the NYS DMV failure to update 2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548;

their systems. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When

ruling on a summary judgment motion, the district court must

4) The Court does not see misconduct on behalf of any

construe the facts in the light most favorable to the non-

Police Agency, but rather it appears that the Defendants

moving party and must resolve all ambiguities and draw all

actions could have been more amiable in order to resolve

reasonable inferences against the movant.” Dallas Aerospace,

the issues presented.

Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still,

5) Quite possibly the end result would be one of a fine and the nonmoving party “must do more than simply show that

surcharge, both of which the Court feels New York State there is some metaphysical doubt as to the material facts,”

would rather see justice served. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot

6) The Court sees no useful purpose regarding a judgement rely on “mere speculation or conjecture as to the true nature

of conviction. of the facts to overcome a motion for summary judgment.”

Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)

(Id.). (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840

(2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations

or denials ... cannot by themselves create a genuine issue of

III. STANDARD OF REVIEW

material fact where none would otherwise exist.” Hicks v.

Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (alterations in Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997)); see also

original) (internal quotation marks and citations omitted)). Perez v. Duran, 962 F.Supp.2d 533, 541 (S.D.N.Y. 2013)

(discussing seizure requirement and court appearances).

IV. DISCUSSION Defendants argue that Plaintiff cannot show any

As explained in the Court's Memorandum-Decision & Order unconstitutional detention for the federal malicious

dated August 31, 2017, Plaintiff's remaining claims in this prosecution claim because “all the ‘seizures’ of which

case are as follows: 1) as against Deputy Darling, federal Plaintiff could complain – any mandatory court appearances,

and state law malicious prosecution and First Amendment and his trial – each time occurred due to the charge of

retaliation; 2) as against Sheriff Todd, federal and state law obstructing governmental administration as well as the other

claims for malicious prosecution and a federal claim for charges against him.” (Dkt. No. 209-21, p. 9). Defendants

supervisory liability; 3) as against Oswego County, vicarious further argue that the charge for obstructing governmental

liability under New York State law for the actions of Deputy administration “was not resolved favorably to Plaintiff

Darling and Sheriff Todd; and 4) as against Commissioner because – following his conviction in the jury trial and

Swarts and the John Doe Defendants, an apparent federal due the reversal on a technicality on appeal – that charge was

process claim, with related claims for supervisory and Monell ultimately dismissed in the interests of justice.” (Id., p. 10).

liability. (Dkt. Nos. 155, 157). The Court will discuss each Defendants argue that “[b]ecause any court appearances and

claim in turn. the trial were all necessitated by a charge as to which there

was no favorable termination, those ‘seizures’ could not form

the basis of a malicious prosecution claim, and were all

A. Malicious Prosecution

constitutional as a matter of law.” (Id.). Plaintiff's opposition

The Defendants argue that Plaintiff's Section 1983 malicious

papers do not appear to respond to this argument. (Dkt. Nos.

prosecution claim fails for several reasons, including: 1)

216, 218).

the “for lack of an unconstitutional detention”; and 2) the

immunity defenses applicable to their actions. (Dkt. No.

*6 Here, the undisputed facts show that Plaintiff was

209-21, pp. 8–18). The elements of a malicious prosecution

charged with: 1) aggravated unlicensed operation of a

claim under New York law are: 1) the defendant initiated

motor vehicle; 2) endangering the welfare of a child;

a prosecution against the plaintiff; 2) the defendant lacked

3) obstruction of governmental administration; and 4)

probable cause to believe the proceeding could succeed; 3)

vehicle registration and inspection violations. (Dkt. No.

the defendant acted with malice; and 4) the prosecution was

209-13). Further, the record shows that the first charge was

terminated in the plaintiff's favor. See Rohman v. New York

dismissed, (Dkt. No. 209-6), and a jury acquitted Plaintiff

City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000); Colon v.

of child endangerment while convicting him of obstructing

City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455

governmental administration and the vehicle registration

N.E.2d 1248 (1983).

and inspection violations. (Dkt. No. 209-4, pp. 23–24). It

is undisputed that following Plaintiff's appeal on various

grounds, the Oswego County Court found reversible error

1. Unconstitutional Seizure in the trial court's jury selection process, reversed the

judgment, and remanded for a new trial. (Dkt. No. 209-9).

“When raising a malicious prosecution claim under Section Notably, the court rejected Plaintiff's argument that the jury's

1983, a plaintiff must also show a ‘seizure or other perversion conviction for obstruction of governmental administration

of proper legal procedures implicating the claimant's personal was inconsistent with the acquittal for child endangerment.

liberty and privacy interests under the Fourth Amendment.’ ” (Id., pp. 4–6). The court pointed out that:

Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016)

(quoting Washington v. County of Rockland, 373 F.3d 310, The People alleged that the defendant obstructed or

316 (2d Cir. 2004)). The issue is generally a matter of law prevented or attempted to prevent a police officer from

for the court, and the Second Circuit has “consistently held arresting the defendant by holding an eighteen month old

that a post-arraignment defendant who is ‘obligated to appear child up and put in front of him so that the police officer

in court in connection with [criminal] charges whenever was not able to take the defendant into custody.

Based upon the testimony of Officer Darling ..., the by the offense was to the equities of the Defendant for the

jury could have found that the defendant obstructed, costs of his defense, which could be the responsibility of

impaired, or perverted the administration of law or the NYS DMV.” (Id.). The court also highlighted that it

other governmental function or prevented or attempted “does not see misconduct on behalf of any Police Agency,

to prevent a public servant from performing an official but rather it appears that the Defendants actions could have

function (i.e the defendant's lawful arrest), by means of been more amiable in order to resolve the issues.” (Id.). The

intimidation, physical force, or interference (i.e. holding court concluded that it “sees no useful purpose regarding a

a child out in front of him as a shield between himself judgment of conviction.” (Id.). This rationale for dismissal

and the arresting officer), and that the defendant did so does not show that Plaintiff was innocent of the charges,

intentionally. or that Defendants lacked probable cause. Based on the

record, the Court finds that the charges against Plaintiff

(Id., pp. 5–6). Rather than hold a new trial, a Town Justice

for obstruction of governmental administration and vehicle

dismissed the case pursuant to Section 170.40 of the New

registration and inspection violations were not terminated in

York State Rules of Criminal Procedure. (Dkt. No. 209-10).

his favor. (See also Dkt. No. 155, p. 13).

In dismissing the case in “furtherance of justice,” the court

emphasized that “[n]o arrest would have arisen should the

*7 That leaves two potentially viable charges for Plaintiff's

DMV database been properly updated,” and that “[t]he only

federal malicious prosecution claim: 1) endangering the

harm caused by the offense was to the equities of the

welfare of a child; and 2) aggravated unlicensed operation of

Defendant for the costs of his defense, which could be

a motor vehicle. As the Court previously noted, Plaintiff was

the responsibility of the NYS DMV.” (Id.). The court also

acquitted of the former, and the circumstances surrounding

highlighted that it “does not see misconduct on behalf of

the latter are not entirely clear. (See also Dkt. No. 155, p. 14).

any Police Agency, but rather it appears that the Defendants

However, Defendants correctly point out that further inquiry

actions could have been more amiable in order to resolve

on these charges is not necessary because Plaintiff's federal

the issues.” (Id.). The court concluded that it “sees no useful

malicious prosecution claim must rise or fall by showing an

purpose regarding a judgment of conviction.” (Id.).

unconstitutional seizure. The Second Circuit has held that a

plaintiff cannot show such a seizure unless it was “solely

As this Court previously observed, a dismissal pursuant to

attributable” to the unlawful charges. Coleman v. City of

Section 170.40 is not an acquittal and typically does not

New York, 688 F. App'x 56, 58 (2d Cir. 2017). In that case,

support a malicious prosecution claim. (Dkt. No. 155, p. 12).

the plaintiff was charged with, among other things, assault,

New York's highest court has held that “any termination of

obstruction of governmental administration, reckless driving,

a criminal prosecution, such that the criminal charges may

and traffic violations. The Second Circuit sustained dismissal

not be brought again, qualifies as a favorable termination, so

of the plaintiff's malicious prosecution claim predicated on

long as the circumstances surrounding the termination are not

the assault charges because “[e]ven if the assault charges had

inconsistent with the innocence of the accused.” Cantalino v.

never been, [the plaintiff] still would have had the obligation

Danner, 96 N.Y.2d 391, 729 N.Y.S.2d 405, 754 N.E.2d 164,

to appear on account of the other criminal charges (which

167 (2001) (citing Smith-Hunter v. Harvey, 95 N.Y.2d 191,

cannot support a malicious prosecution claim, because they

712 N.Y.S.2d 438, 734 N.E.2d 750, 755 (2000)). Ultimately,

were indisputably supported by probable cause) and the

“the question is whether, under the circumstances of each

traffic code violations (which cannot support a malicious

case, the disposition was inconsistent with the innocence of

prosecution claim because they were terminated unfavorably

the accused.” Id.

to [the plaintiff] by [adjournment in contemplation of

dismissal] ).” 688 F. App'x at 58.

In this case, the circumstances surrounding the dismissal of

the trial charges against Plaintiff are clear and undisputed.

Likewise, in this case Plaintiff cannot sustain a federal

As Defendants note, the Oswego County Court reversed

malicious prosecution claim based on the child endangerment

on the basis of a procedural error with jury selection, but

and aggravated unlicensed operation charges because the

rejected Plaintiff's argument on the merits of the obstruction

record shows that, even if those charges had never been

charge. (Dkt. No. 209-9, pp. 5–6). In dismissing the case

brought, he would have had the obligation to appear in

in “furtherance of justice,” the trial court emphasized that

court on the obstruction of governmental administration

209-13). As discussed above, the obstruction of governmental pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d

administration charge cannot support a federal malicious 838, 204 N.E.2d 179 (1965) (providing a criminal defendant

prosecution claim because it was not terminated in Plaintiff's with a pre-trial hearing to determine whether statements are

favor. Accordingly, based on the undisputed facts, Plaintiff's admissible). The Second Circuit has recognized that “police

federal malicious prosecution claim must be dismissed. See officers who testify at adversarial pretrial proceedings are

also Warner v. Freeman, No. 14 Civ. 1192, 2017 WL entitled to absolute immunity from liability based on that

4227655, at *2, 2017 U.S. Dist. LEXIS 154743 (D. Conn. testimony.” Daloia v. Rose, 849 F.2d 74, 76 (2d Cir. 1988).

Sept. 22, 2017) (granting summary judgment on malicious Like a suppression hearing, the purpose of the Huntley

prosecution claim where the plaintiff failed to show “that hearing was to determine the admissibility of statements

he suffered a post-arraignment constitutionally cognizable made by Plaintiff (then defendant). (Dkt. No. 209-11). Thus,

deprivation of liberty attributable to the criminal trespass Defendants Darling and Todd are absolutely immune for all

charge”); Flynn-Rodriguez v. Cheng, No. 14 Civ. 2287, 2017 of their courtroom testimony in the criminal case against

WL 3278889, at *3, 2017 U.S. Dist. LEXIS 120775 (E.D.N.Y. Plaintiff.2 See also Coggins v. Buonora, 776 F.3d 108,

Aug. 1, 2017) (“Though Ms. Flynn-Rodriguez suffered a 113 (2d Cir. 2015) (finding that the defendant officer was

deprivation of liberty, the resisting arrest charge was not the entitled to absolute immunity for grand jury testimony, but

sole cause of that deprivation; the deprivation was also caused not for allegedly false statements and reports that “laid the

by other charges that were supported by probable cause. The groundwork” for indictment).

malicious prosecution claim is dismissed.”); Othman v. City

of New York, No. 13 Civ. 4771, 2015 WL 1915754, at *6, 2015 2 The record shows that Deputy Darling did not act

U.S. Dist. LEXIS 54903 (E.D.N.Y. Apr. 27, 2015) (dismissing

as a “complaining witness” at the hearing, which

claim of malicious prosecution because the plaintiff failed to

was focused on Plaintiff's admissions. See Rehberg,

allege “any deprivation of liberty that stems exclusively from

566 U.S. at 370, 132 S.Ct. 1497.

those charges that may have terminated in his favor”).

*8 The remaining question is whether Defendants Darling

and Todd are immune from liability for their other actions

related to the prosecution. As to Deputy Darling, the record

2. Immunity Defenses

shows that he provided information about Plaintiff's arrest,

Moreover, even if Plaintiff could show evidence of an which led to Plaintiff's arraignment shortly thereafter on

unconstitutional seizure, his malicious prosecution claim November 22, 2009. (Dkt. No. 209-13). The Defendants

against Defendants Darling and Todd would fail because they argue that Deputy Darling had at least “arguable probable

are entitled to absolute immunity and/or qualified immunity cause,” and therefore he is entitled to qualified immunity for

for their actions. It is well-established that in Section 1983 initiating Plaintiff's prosecution. (Dkt. No. 209-21, pp. 16,

actions, all witnesses, including police officers, are absolutely 22).

immune from civil liability based on their testimony in

judicial proceedings. Briscoe v. LaHue, 460 U.S. 325, 343, “Qualified immunity attaches when an official's conduct

103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The Supreme Court does not violate clearly established statutory or constitutional

observed that “[s]ubjecting government officials, such as rights of which a reasonable person would have known.”

police officers, to damages liability under § 1983 for their White v. Pauly, ––– U.S. ––––, 137 S.Ct. 548, 551, 196

testimony might undermine not only their contribution to the L.Ed.2d 463 (2017) (per curiam) (internal quotation marks

judicial process but also the effective performance of their omitted). “Qualified immunity protects public officials from

other public duties.” Id. In judicial proceedings, the deterrent liability for civil damages when one of two conditions is

of potential civil liability is unnecessary to prevent false satisfied: (a) the defendant's action did not violate clearly

testimony because perjury is a serious criminal offense. See established law, or (b) it was objectively reasonable for the

Rehberg v. Paulk, 566 U.S. 356, 367, 132 S.Ct. 1497, 182 defendant to believe that his action did not violate such

L.Ed.2d 593 (2012). Therefore, Defendants Darling and Todd law.” Garcia v. Does, 779 F.3d 84, 92 (quoting Russo v. City

are entitled to absolute immunity for their testimony at trial, of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007)); see also

even if it was false. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

73 L.Ed.2d 396 (1982). Where the relevant facts are not in

of law. See Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990). motor vehicle in the third degree.

Probable cause is a “complete defense to a constitutional 3 Although Plaintiff submitted an affidavit from

claim of malicious prosecution.” Betts v. Shearman, 751 Casselman, who allegedly informed officers at the

F.3d 78, 82 (2d Cir. 2014) (citations omitted)). Moreover, scene that Plaintiff had paid the fine and “there

qualified immunity is a defense on the same claim if there must be some mix-up” about the license, Deputy

was arguable probable cause, which “exists if either (a) it was Darling was under no obligation to credit that

objectively reasonable for the officer to believe that probable explanation, absent supporting evidence.

cause existed, or (b) officers of reasonable competence could

disagree on whether the probable cause test was met.” Garcia, *9 Second, “a person is guilty of obstructing governmental

779 F.3d at 92 (citation omitted). In determining whether administration when he intentionally obstructs, impairs or

an officer's challenged conduct was objectively reasonable, perverts the administration of law or other governmental

courts consider the information possessed by the officer at the function or prevents or attempts to prevent a public

time of that conduct, but not the officer's “subjective intent, servant from performing an official function, by means of

motives, or beliefs.” Id. In deciding qualified immunity, the intimidation, physical force or interference, or by means

Court will consider the facts available to Deputy Darling at of any independently unlawful act....” N.Y. Penal Law §

the time of arraignment, on each charge. 195.05. In this case, it is undisputed that Plaintiff refused

repeated orders from Deputy Darling to get out of his vehicle.

First, “a person is guilty of the offense of aggravated (See Dkt. No. 209-4, pp. 15–18; Dkt. No. 209-5, pp. 2–

unlicensed operation of a motor vehicle in the third degree 3; Dkt. No. 209-12). It also undisputed that Plaintiff held

when such person operates a motor vehicle upon a public onto his child while doing so. (Id.). Based on these facts,

highway while knowing or having reason to know that such it was objectively reasonable for Deputy Darling to believe

person's license or privilege of operating such motor vehicle on November 22, 2009 that probable cause existed to charge

in this state or privilege of obtaining a license to operate Plaintiff for obstruction of governmental administration.

such motor vehicle issued by the commissioner is suspended,

revoked or otherwise withdrawn by the commissioner.” N.Y. Third, as relevant here, a person is guilty of endangering the

Veh. & Traf. Law § 511(a). It is undisputed that at the welfare of a child when he “knowingly acts in a manner likely

time of Plaintiff's arrest, Deputy Darling's computer check of to be injurious to the physical, mental or moral welfare of a

the DMV database showed that Plaintiff's license had been child less than seventeen years old or directs or authorizes

suspended, and that Plaintiff did not possess any paperwork such child to engage in an occupation involving a substantial

showing otherwise. (Dkt. No. 209-3, pp. 9–10; Dkt. No. risk of danger to his or her life or health.” N.Y. Penal Law §

209-4, pp. 16–17; Dkt. No. 209-7, pp. 15–17; Dkt. No. 260.10(1). Again, it is undisputed that, while refusing Deputy

209-12). At the motion to dismiss stage, the Court observed Darling's orders to exit the vehicle, Plaintiff held onto his

that it could not “determine whether and when Deputy child. (See Dkt. No. 209-4, pp. 15–18; Dkt. No. 209-5, pp. 2–

Darling knew or should have known that plaintiff's license 3; Dkt. No. 209-12). Deputy Darling testified at the criminal

was not suspended.” (Dkt. No. 155, p. 13). Now on summary trial that the child prevented him from arresting Plaintiff, and

judgment, the evidence shows that Deputy Darling relied on that he was concerned about injuring the child. (Dkt. No.

the DMV information about Plaintiff's license, both for the 209-3, p. 17). While Plaintiff claims that he held on for the

arrest and the arraignment, which occurred in a short span on child's safety, based on the facts available to Deputy Darling at

the same day. (Dkt. No. 209-17, ¶ 13; Dkt. No. 209-8, p. 12). the time, Plaintiff's conduct could also be viewed as likely to

Although Plaintiff alleges that Deputy Darling should have be injurious to the child. At a minimum, officers of reasonable

known that the DMV information was unreliable, (Dkt. No. competence could disagree on whether there was probable

157, ¶ 220), he has not adduced any evidence in support of cause to charge Plaintiff for endangering the welfare of a

this theory, nor has he shown that Deputy Darling learned of child.

the mistake before Plaintiff's arraignment.3 Based on these

In sum, based on the undisputed facts, there was arguable

facts, it was objectively reasonable for Deputy Darling to

probable cause to charge Plaintiff with aggravated unlicensed

believe on November 22, 2009 that probable cause existed

operation of a motor vehicle, endangering the welfare

immunity for initiating the prosecution on those charges. claim that Deputy Darling had a retaliatory motive when

he arrested Plaintiff lacks merit.” (Id.). The Court noted

As to Sheriff Todd, the record shows that, after arraignment, that “the question of whether Deputy Darling had probable

he met with Plaintiff on November 24, 2009 to discuss the cause to charge plaintiff with endangering the welfare of a

charges. (Dkt. No. 209-11, pp. 16–17; Dkt. No. 209-12). child and obstructing governmental administration cannot be

Plaintiff requested the meeting and Sherriff Todd warned him determined on a motion addressed to the second amended

that any admissions could be used against him. (Dkt. No. complaint.” (Id.). Further, the Court observed that, based on

209-20, ¶¶ 39–40). In the meeting, Plaintiff made a series the pleadings, it was unclear if Deputy Darling at some point

of admissions, which Sheriff Todd reported to the Oswego “knew or should have known that in fact plaintiff's license was

County District Attorney's Office, in the form of a “Notice valid,” which could support a retaliation claim for initiating

of Intent to Use Admission or Confession” pursuant to New and continuing the prosecution for aggravated unlicensed

York Criminal Procedure Law § 710.30 (or “710.30 notice”). operation of a motor vehicle. (Id.).

(Dkt. No. 209-12). The 710.30 notice stated in relevant part:

“Admissions of no insp. sticker, no letter saying suspension 4 The Court dismissed any First Amendment

was lifted. Admissions to holding child in front of him

retaliation claim against Sheriff Todd. (Dkt. No.

and refusing to get out of van.” (Id.). The 710.30 notice is

155, p. 21).

consistent with Plaintiff's own testimony, (Dkt. No. 209-4, pp.

15–18), and Plaintiff has not raised an issue of fact otherwise. The Defendants argue that Plaintiff's First Amendment

Therefore, it was objectively reasonable for Sheriff Todd to retaliation claim against Deputy Darling must fail for several

believe that his action, in preparing the notice and reporting reasons including: 1) lack of any evidence of retaliatory

it to the District Attorney's Office, did not violate Plaintiff's causation”; and 2) the immunity defenses applicable to

rights or clearly established law. Accordingly, Sheriff Todd their actions. (Dkt. No. 209-21, pp. 21–22). The latter

is entitled to qualified immunity for this action. Cf. Coggins, argument is dispositive here. Plaintiff's First Amendment

776 F.3d at 114 (finding that qualified immunity did not shield claim runs up against the same immunity defenses as his

the defendant officer on malicious prosecution claim given claim for malicious prosecution. As discussed above, Deputy

evidence that he made false statements to the district attorney, Darling is absolutely immune for his testimony in the

because such conduct “constitute[s] a violation of clearly judicial proceedings against Plaintiff, which therefore, cannot

established law, and no objectively reasonable public official support Plaintiff's First Amendment retaliation claim. Further,

could have thought otherwise”). Deputy Darling is entitled to qualified immunity for charging

Plaintiff and initiating the prosecution, as discussed above.

Accordingly, Plaintiff's First Amendment retaliation claim

B. First Amendment Retaliation fails for these same reasons. See also Collins v. City of New

*10 To prevail on a First Amendment retaliation claim, a York, 295 F.Supp.3d 350, 368 (S.D.N.Y. 2018) (“Because

plaintiff must show: 1) that he has an interest protected by the Court has already concluded that the Defendants had

the First Amendment; 2) that the defendant's actions were arguable probable cause to arrest the Plaintiffs for disorderly

motivated or substantially caused by the plaintiff's exercise conduct, ... the Court finds that the Defendants are entitled to

of that right; and 3) that the defendant's actions effectively qualified immunity on Plaintiffs' First Amendment retaliation

chilled the exercise of his First Amendment right or caused claim on the basis of that same arguable probable cause.”).

some other type of harm. See Gill v. Pidlypchak, 389 F.3d 379,

383 (2d Cir. 2004); Curley v. Village of Suffern, 268 F.3d 65,

73 (2d Cir. 2001). C. Supervisory Liability Against Sheriff Todd

As the Court previously stated, Plaintiff pled a federal claim

As previously noted, Plaintiff could have a potential First for supervisory liability against Sheriff Todd, based on his

Amendment retaliation claim based on the theory that, after alleged failure to remedy an ongoing violation of Plaintiff's

he spoke out and verbally challenged Deputy Darling at the constitutional rights, specifically Deputy Darling's allegedly

time of the arrest, Deputy Darling retaliated by initiating malicious and retaliatory prosecution of Plaintiff. (Dkt. No.

the prosecution against Plaintiff for aggravated unlicensed 155, pp. 20–21). Under Section 1983, “a supervisor may not

operation of a motor vehicle, obstruction of governmental be held liable merely because his subordinate committed a

as supervisor to Deputy Darling if Plaintiff can show that claims.”).

Sherriff Todd, “after being informed of the violation through

a report or appeal, failed to remedy the wrong.” Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). D. Due Process Claim

Plaintiff alleges that Commissioner Swarts and the John Doe

*11 Plaintiff's theory appears to be as follows: 1) Deputy Defendants (apparently unknown employees of the DMV)

Darling initiated the prosecution on November 22, 2009; violated his rights to procedural and substantive due process

2) Sherriff Todd met with Plaintiff on November 24, 2009 under the Constitution by failing to lift Plaintiff's license

and learned that the prosecution was unconstitutional; and 3) suspension, allowing it to remain in effect for eight months,

Sheriff Todd did nothing to remedy the violation thereafter. and reporting his license as suspended to the police during

(Dkt. No. 157, pp. 28–32). The Defendants argue that that time, when it was not. (Dkt. No. 157, pp. 17–23). Plaintiff

Plaintiff's claim fails for several reasons, including that also alleges that Commissioner Swarts and the John Does are

Deputy Darling did not engage in unconstitutional conduct, subject to supervisory liability because they were aware of the

and that Sheriff Todd is entitled to qualified immunity license issue and failed to remedy it. (Id., pp. 23–24). Further,

“because there was at least arguable probable cause as to all Plaintiff alleges that they exhibited deliberate indifference

of the charges.” (Dkt. No. 209-21, p. 18). and their actions are the policy, custom, and practice of the

DMV. (Id.).

Once again, the above qualified immunity analysis dictates

dismissal of Plaintiff's claim. The record shows that Sheriff In general, a procedural due process violation under

Todd met with Plaintiff on November 24, 2009, at which the Fourteenth Amendment occurs when the government

time Plaintiff discussed his November 22, 2009 arrest. (Dkt. deprives a person of a protected life, liberty, or property

No. 209-11, pp. 16–17; Dkt. No. 209-12). Although Plaintiff interest without first providing notice and opportunity to be

offered his version of events, he also made several important heard. Spinelli v. City of New York, 579 F.3d 160, 168 (2d Cir.

admissions: 1) not having an inspection sticker; 2) not having 2009) (citing Sanitation and Recycling Indus., Inc. v. City of

a letter saying his license suspension was lifted; 3) holding New York, 107 F.3d 985, 995 (2d Cir. 1997)). On the other

his child between himself and the officer; and 4) refusing hand, substantive due process “protects against government

to get out of the van when instructed by the officer. (Dkt. action that is arbitrary, conscience-shocking, or oppressive in

No. 209-12). These admissions are consistent with Deputy a constitutional sense, but not against government action that

Darling's testimony as to the factual basis for arresting and is ‘incorrect or ill-advised.’ ” Kaluczky v. City of White Plains,

charging Plaintiff. (See Dkt. No. 209-3, pp. 7–17). Moreover, 57 F.3d 202, 211 (1995) (quoting Lowrance v. Achtyl, 20 F.3d

even though Plaintiff tried to justify his actions and put them 529, 537 (2d Cir. 1994)).

in context, these admissions are consistent with Plaintiff's

own testimony. (Dkt. No. 209-4, pp. 15–18). *12 Commissioner Swarts argues that “the record is devoid

of any facts that support personal involvement of former

Based on the undisputed facts, there was at least arguable Commissioner Swarts in any constitutional violations.” (Dkt.

probable cause for Deputy Darling to initiate prosecution on No. 201, p. 2). In response, Plaintiff states that Commissioner

the charges for aggravated unlicensed operation of a motor Swarts “did either directly or indirectly violate Plaintiffs

vehicle, endangering the welfare of a child, and obstruction constitutional rights by his actions/or lack of actions.

of governmental administration, and the November 24, Defendant, Swarts, has personal knowledge of, and was in

2009 meeting did not suggest otherwise. Therefore, it direct supervisory command of the DMV personnel, and the

was objectively reasonable for Sheriff Todd to believe policies and procedures utilized by the employees of the

that Plaintiff did not suffer a constitutional violation that DMV[.]” (Dkt. No. 208).

needed remedying. Accordingly, Sheriff Todd is entitled to

qualified immunity on Plaintiff's supervisory liability claim. Personal involvement of an individual defendant “in alleged

See also Levy v. City of New York, 935 F.Supp.2d 575, 593 constitutional deprivations is a prerequisite to an award of

(E.D.N.Y. 2013) (“The Court concludes Sgt. Reed is entitled damages under § 1983.” Provost v. City of Newburgh, 262

to qualified immunity on Plaintiff's supervisory liability claim F.3d 146, 154 (2d Cir. 2001) (quoting Wright v. Smith, 21 F.3d

for substantially the same reasons he is entitled to qualified 496, 501 (2d Cir. 1994)). Indeed, “a defendant in a § 1983

authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). is no evidence that he failed to act on information that

“Because vicarious liability is inapplicable to ...§ 1983 suits,” unconstitutional acts were occurring. Moreover, there is

Plaintiff must raise a genuine dispute as to whether “each no evidence as to who at the DMV failed to update the

Government-official defendant, through the official's own database, much less that Commissioner Swarts supervised

individual actions, has violated the Constitution.” Victory v. that person.6 Plaintiff repeatedly alleges that the DMV

Pataki, 814 F.3d 47, 67 (2d Cir. 2016), as amended (Feb. 24, (led by Commissioner Swarts) delayed in lifting license

2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. suspensions, which amounted to an unconstitutional policy,

1937, 173 L.Ed.2d 868 (2009)) (emphasis added). custom, and practice, (see Dkt. No. 157, ¶ 147), but he has

not adduced any supporting evidence. Plaintiff's conclusory

Here, Plaintiff has not adduced any evidence to show that assertions, while enough to state a claim, are not enough

Commissioner Swarts directly participated in the alleged to survive summary judgment. See Kia P. v. McIntyre, 235

failure to lift Plaintiff's license suspension. In Commissioner F.3d 749, 763 (2d Cir. 2000) (“A plaintiff may not survive

Swarts's sworn responses to Plaintiff interrogatories, he stated a properly asserted motion for summary judgment on the

that he did not possess any meaningful information regarding basis of conclusory allegations alone.”); Shariff v. Poole, 689

the suspension of Plaintiff's license, the continuation of that F.Supp.2d 470, 476 (W.D.N.Y. 2010) (“[T]he pro se plaintiff

suspension, or the specifics of the incident forming the must still establish the existence of genuine issues of material

basis of this action. (Dkt. No. 195-1). Plaintiff's conclusory fact to survive a motion for summary judgment; the pro se

assertions, unsupported by any evidence, are not enough to party's ‘bald assertion,’ when unsupported by evidence, is

raise an issue of fact as to Commissioner Swarts's personal insufficient.”).

involvement on a direct participation theory.5

6 Although Plaintiff alleges that unknown John/

5 Plaintiff objects that he was not afforded the Jane Doe Defendants at the DMV failed to

opportunity to take the deposition of Commissioner lift his suspension, he has not identified these

Swarts, but United States Magistrate Judge David individuals or shown evidence of their involvement

E. Peebles declined that request because there in infringing activity, and with discovery now

was no evidence that Commissioner Swarts had closed, any claims against them must be dismissed.

relevant information. (Dkt. No. 199, p. 7). See Blake v. Race, 487 F.Supp.2d 187, 192 n.1

(E.D.N.Y. 2007) (citing cases).

Nor has Plaintiff adduced any evidence to show personal

involvement of Commissioner Swarts under any of the other *13 Likewise, to the extent Plaintiff alleges a claim pursuant

methods recognized by the Second Circuit. Besides direct to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018,

participation, Plaintiff could show that: 1) the defendant, 56 L.Ed.2d 611 (1978), that claim must fail for the same

after being informed of the violation through a report or reasons. Plaintiff's theory appears to be that Commissioner

appeal, failed to remedy the wrong; 2) the defendant created Swarts, acting as official policymaker for the DMV, created

a policy or custom under which unconstitutional practices the policy/practice whereby the DMV did not update their

occurred, or allowed the continuance of such a policy or database, or ignored that policy/practice. (Dkt. No. 157, ¶ 94).

custom; 3) the defendant was grossly negligent in supervising However, once again, Plaintiff has not adduced any evidence

subordinates who committed the wrongful acts; or 4) the whatsoever that this policy/practice existed, much less that

defendant exhibited deliberate indifference to the rights of Commissioner Swarts created or ignored it. For example,

the plaintiff by failing to act on information indicating that there is no evidence of an explicit policy or practice regarding

unconstitutional acts were occurring. See Warren v. Pataki, DMV database updates. Nor is there evidence of a pattern

823 F.3d 125, 136 (2d Cir. 2016) (citing Colon, 58 F.3d at of similar delays in clearing license suspensions from the

873). DMV database, which might suggest a policy or practice.

Rather, Plaintiff has alleged a single incident involving his

Plaintiff appears to allege most of these theories, (Dkt. No. license, and he then jumps to the conclusion that it was caused

157, pp. 13–24), but there is simply no evidence in the by a policy or practice at the DMV. As Defendants note,

record to support them. For example, there is no evidence “Plaintiff makes only conclusory and speculative allegations,

that Commissioner Swarts was made aware of Plaintiff's without offering any evidence that any of the named

an unconstitutional practice occurred.” (Dkt. No. 201-2, p. courts, absent exceptional circumstances, should abstain from

6). Simply put, these allegations are not enough to sustain a exercising pendent jurisdiction when federal claims in a case

Monell claim on summary judgment. See Nardoni v. City of can be disposed of by summary judgment”) (citing Kavit v.

New York, 331 F.Supp.3d 116, 119 (S.D.N.Y. 2018) (granting A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974)). Accordingly,

summary judgment on Monell claim because “Plaintiff points Plaintiff's state law claims against Defendants are dismissed.

to no evidence in the record of a policy or custom by the City

of New York”); Castro v. County of Nassau, 739 F.Supp.2d

V. CONCLUSION

153, 172 (E.D.N.Y. 2010) (finding that “conclusory allegation For these reasons, it is

does not allow plaintiff's Monell claim to survive summary

judgment”). ORDERED that Defendant Swarts's motion for summary

judgment (Dkt. No. 201) is GRANTED; and it is further

E. State Law Claims

Finally, having found that all of Plaintiff's federal claims

ORDERED that the Oswego County Defendants' motion for

are subject to summary judgment, the Court declines to

summary judgment (Dkt. No. 209) is GRANTED; and it is

further

exercise jurisdiction over Plaintiff's remaining state law

claims, including any claims against Oswego County for

vicarious liability under New York State law. See 28 U.S.C.

ORDERED that Defendants' motion to strike is DENIED as

moot; and it is further

§ 1367(c)(3) (providing that a district court “may decline to

exercise supplemental jurisdiction over [pendent state law

claims] if ... the district court has dismissed all claims over

ORDERED that Plaintiff's Second Amended Complaint

which it has original jurisdiction”); Carnegie-Mellon Univ.

(Dkt. No. 157) is DISMISSED with prejudice; and it is

v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d

720 (1988) (“[I]n the usual case in which all federal-law IT IS SO ORDERED.

claims are eliminated before trial, the balance of factors

to be considered under the pendent jurisdiction doctrine

All Citations

—judicial economy, convenience, fairness, and comity—

will point toward declining to exercise jurisdiction over the Not Reported in Fed. Supp., 2019 WL 1409938

remaining state-law claims.”); Walker v. Time Life Films,

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

2014 WL 6078425 the face of the record in order to accept the recommendation.”

Only the Westlaw citation is currently available. Id.; see also Batista v. Walker, 94–CV–2826, 1995 WL

United States District Court, 453299, at *1. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I

N.D. New York. am permitted to adopt those sections of [a magistrate judge's]

report to which no specific objection is made, so long as

Robert H. AJAMIAN, Plaintiff, those sections are not facially erroneous.”) (internal quotation

v. marks and citations omitted).

Kinah NIMEH, Stock Broker at Gunn Allen

Financial, Arbitration 13–02183, Defendant. Here, based upon a review of this matter, the Court can

find no error with Magistrate Judge Hummel's Report–

No. 1:14–CV–0320 (GTS/CFH). Recommendation, clear or otherwise. (Dkt. No. 15.)

| Magistrate Judge Hummel employed the proper standards,

Signed Nov. 13, 2014. accurately recited the facts, and reasonably applied the law to

those facts. (Id.) Further, Magistrate Judge Hummel's Report–

Attorneys and Law Firms Recommendation would survive even a de novo review. As a

result, the Report–Recommendation is accepted and adopted

Robert H. Ajamian, Latham, NY, pro se.

in its entirety for the reasons stated therein.

DECISION and ORDER II. Proposed Amended Complaint

Ostensibly pursuant to Magistrate Judge Hummel's

Hon. GLENN T. SUDDABY, District Judge. recommendation that this Court grant Plaintiff leave to

file an amended complaint, Plaintiff prematurely filed a

*1 Currently before the Court, in the above-captioned

proposed amended complaint, but did so by insisting that

civil rights action filed by Robert H. Ajamian (“Plaintiff”)

it be treated as a separate action. (See Ajamian v. Gunn

against the above-captioned Defendants, is United States

Allen Fin., et al., 1:14–CV–1211 [DNH/ATB].) As Magistrate

Magistrate Christian F. Hummel's Report–Recommendation

Judge Andrew T. Baxter observed, that complaint adds a

recommending that Plaintiff's Complaint be dismissed

defendant, adds facts and changes the basis for Plaintiff's

pursuant to 28 U.S.C. § 1915 and § 1915A for failure to state

allegation of jurisdiction. (See id., Dkt. No. 5) However,

a claim but otherwise granting Plaintiff leave to submit an

because that complaint is “challenging the same conduct by

amended complaint. (Dkt. No. 15.) Plaintiff has not filed an

the same defendant at the same time as the complaint in [this

objection to the Report–Recommendation and the deadline

action],” Magistrate Judge Baxter closed the separate action

in which to do so has expired. (See generally Docket Sheet.)

and directed that the complaint filed therein be filed as a

Instead, Plaintiff has filed a proposed amended complaint.

proposed amended complaint in this action. (See id., Dkt.

For the reasons set forth below, Magistrate Judge Hummel's

No. 5.) Therefore, the Court will review Plaintiff's proposed

Report–Recommendation is accepted and adopted in its

amended complaint to determine whether a meritorious claim

entirety. In addition, Plaintiff's proposed amended complaint

is stated, which would allow the action to go forward.

is denied and this action is dismissed with prejudice. Further,

Plaintiff is directed to show cause, within thirty (30) days of

*2 As an initial matter, it is important to note that Plaintiff

this Decision and Order, as to why he should not be barred

filed an exact copy of the original complaint in this action in

from filing any future pro se documents or motions in this

the United States District Court for the District of Columbia

action without first obtaining leave of the Court.

on June 10, 2014, which was thereafter transferred to the

Eastern District of New York. See Ajamian v. Nimeh, 2:14–

I. Report–Recommendation CV–4093(JS/GRB). On September 26, 2014, the District

When no objection is made to a report-recommendation, the Judge in that case dismissed Plaintiff's claims without

Court subjects that reportrecommendation to only a clear prejudice and granted Plaintiff leave to file an amended

error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: complaint within thirty days of the filing of the Order. See

1983 Addition. When performing such a “clear error” review, Ajamian v. Nimeh, No. 14–CV–409, 2014 WL 4828884, at

the time allowed, the Complaint shall be DISMISSED WITH on lack of merit.4

PREJUDICE.” Id. (emphasis in original). Plaintiff having

not filed an amended complaint in that action within the 1

See Ajamian v. State of New York, No. 13–CV–

time allowed, his claims have been dismissed with prejudice.

1316, Complaint (N.D.N.Y. filed Oct. 23, 2013)

For this reason, the Court finds that the proposed amended

(pro se civil rights action); Ajamian v. Morgan

complaint in this action is futile because Plaintiff is estopped

Stanley Smith Barney, et. al, No. 14–CV–0306,

from pursuing his claims under the doctrine of res judicata.

Complaint (N.D.N.Y. filed Mar. 21, 2014) (pro

Under the doctrine of res judicata, or claim preclusion, se civil rights action); Ajamian v. Morgan Stanley

a final judgment on the merits of an action precludes Smith Barney, et. al, No. 14–CV–0319, Complaint

the parties or their privies from relitigating issues that (N.D.N.Y. filed Mar. 24, 2014) (pro se civil

were or could have been raised in that action. Thus, the rights action; Ajamian v. Nimeh, No. 14–CV–0320,

doctrine bars later litigation if an earlier decision was (1) a Complaint (N.D.N.Y. filed Mar. 24, 2014) (pro se

final judgment on the merits, (2) by a court of competent civil rights action); Ajamian v. Zakarian, No. 14–

jurisdiction, (3) in a case involving the same parties or CV–0321, (N.D.N.Y.2014) (current action barred

their privies, and (4) involving the same cause of action. by res judicata ); Ajamian v. Nimeh, No. 14–CV–

EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 4093, (E.D.N.Y.2014) (pro se civil rights action);

621, 624 (2d Cir.2007) (internal citations and quotation Ajamian v. Zakarian, No. 14–CV–1127, Complaint

omitted). (N.D.N.Y. filed Sept. 15, 2014) (pro se civil rights

action); Ajamian v. Morgan Stanley Smith Barney,

A dismissal with prejudice has the effect of a final et. al, No. 14–CV–1204, Complaint (N.D.N.Y.

adjudication on the merits favorable to defendant and bars filed Oct. 1, 2014) (pro se civil rights action);

future suits brought by plaintiff upon the same cause of Ajamian v. Nimeh, No. 14–CV–1211, Complaint

action. Such a dismissal constitutes a final judgment with (N.D.N.Y. filed Oct. 3, 2014) (pro se civil rights

the preclusive effect of res judicata not only as to all action).

matters litigated and decided by it, but as to all relevant

2

issues which could have been but were not raised and See Ajamian v. State of New York, No. 13–CV–

litigated in the suit. 1316, Judgment (N.D.N.Y. filed August 11, 2014)

(dismissing with prejudice for failure to state a

Nemaizer v. Baker, 793 F.2d 58, 60–61 (2d Cir.1986) (internal claim and lack of subject matter jurisdiction);

citations and quotation omitted). Ajamian v. Morgan Stanley Smith Barney, et. al,

No. 14–CV–0306, Judgment (N.D.N.Y. filed May

Consequently, Plaintiff's claims in his original complaint 28, 2014) (dismissing with prejudice for failure

as well as those in the proposed amended complaint are to state a claim); Ajamian v. Morgan Stanley

precluded under the doctrine of res judicata. See Nemaizer, Smith Barney, et. al, No. 14–CV–0319, Text Order

793 F.2d, at 61. For this reason, Plaintiff's proposed amended (N.D.N.Y. filed Mar. 26, 2014) (terminated action

complaint is denied and this action is dismissed without as duplicative of 14–CV–306); Ajamian v. Nimeh,

prejudice. No. 14–CV0320 (N.D.N.Y.2014) (current action

barred by res judicata); Ajamian v. Zakarian,

No. 14–CV0321, Judgment (N.D.N.Y. filed Aug.

III. Appropriateness of Bar Order

26, 2014) (dismissed with prejudice for failure

A review of Plaintiff's litigation history on the Federal

to state a claim and lack of subject matter

Judiciary's Public Access to Court Electronic Records

jurisdiction); Ajamian v. Nimeh, No. 14–CV–4093,

(“PACER”) Service reveals that, over the past year, Plaintiff

Memorandum & Order (E.D.N.Y. filed Sept. 26,

has filed nine pro se civil actions (including this one) in two

2014) (dismissed with prejudice for failure to state

different federal district courts.1 Eight of these nine actions,

a claim); Ajamian v. Morgan Stanley Smith Barney,

including the current action, have been dismissed based on et. al, No. 14–CV–1204, Judgment (N.D.N.Y.

pleading deficiencies or procedural failures.2 In addition, filed Oct. 30, 2014) (dismissed with prejudice for

Judgment (N.D.N .Y. filed Oct. 9, 2014) (closed Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998) ( “[T]he

and ordered that complaint be filed as proposed district court may not impose a filing injunction on a litigant

amended complaint in 14–CV320). sua sponte without providing the litigant with notice and

3 an opportunity to be heard.”); Azubuko v. Unknown Boston

See Ajamian v. Morgan Stanley Smith Barney, LLC, Police Officers, 08–CV–0330, 2008 WL 1767067, at *1

No. 14–2212, Notice of Appeal (2d Cir. filed June (N.D.N.Y. Apr. 16, 2008) (McCurn, J.).

4, 2014); Ajamian v. State of New York, No. 14–

2934, Notice of Appeal (2d Cir. filed Aug. 15, Because of his history of filing unmerited and indeed

2014); Ajamian v. Zakarian, No. 14–3432, Notice vexatious lawsuits, including the current action, Plaintiff is

of Appeal (2d Cir. filed Sept. 2, 2014); Ajamian hereby warned that the Court will not tolerate the filing of

v. Morgan Stanley Smith Barney, 14–CV–1204, frivolous documents or motions in this action by him in

Notice of Appeal to 2d Cir. (N.D.N.Y. filed Nov. 3, the future. As a result, Plaintiff is directed to show cause,

2014). within thirty (30) days, why this Court should not issue an

4 Order barring him from filing any future pro se documents

See Ajamian v. Morgan Stanley Smith Barney,

or motions in this action without first obtaining leave of the

LLC, No. 14–2212, Order (2d Cir. filed Sept. 24,

Court. In the event that Plaintiff fails to show such cause, he

2014) (dismissing appeal for lack of arguable basis

will be prohibited from filing, in this action, any documents

in law or fact); Ajamian v. State of New York,

or motions without prior leave of the Court, pursuant to 28

No. 14–2934, Order (2d Cir. filed Oct. 22, 2014)

U.S.C. § 1651(a) and the Court's inherent authority to control

(dismissing appeal for lack of arguable basis in law

and manage its own docket so as to prevent abuse in its

or fact) (motion for reconsideration pending).

proceedings.

*3 Based on Plaintiff's litigation history, the Court finds

that (1) Plaintiff lacks a good-faith expectation in prevailing Further, in the event Plaintiff fails to show such cause,

in his lawsuits, (2) he has proven himself to be vexatious this case will be forwarded to Chief United States District

and indeed incorrigible when proceeding pro se, (3) he Judge Gary L. Sharpe with the recommendation of the

has caused needless expense to other parties and placed an undersigned that an Anti–Filing Injunction Order be issued

unnecessary burden on the Court and its personnel, and (4) against Plaintiff, which would prohibit Plaintiff from filing,

he has demonstrated that no lesser sanctions (e.g., such as in the Northern District of New York, any action pro se (that

dismissal or chastisement) would be adequate to protect the is, without counsel) without first obtaining leave of the Court.

Court and other parties.

*4 ACCORDINGLY, it is

Under such circumstances, a federal district court may impose

reasonable filing restrictions on a pro se litigant in that ORDERED that Magistrate Judge Hummel's Report–

particular court, pursuant to 28 U.S.C. § 1651(a) and its Recommendation (Dkt. No. 15) is ACCEPTED and

inherent authority to control and manage its own docket ADOPTED in its entirety; and it is further

so as to prevent abuse in its proceedings. For example, a

federal district court may, after providing an appropriate ORDERED that Plaintiff's proposed amended complaint

opportunity to be heard, prohibit a vexatious litigant from (Dkt. No. 32) is DENIED; and it is further

filing, in that particular court, any action pro se (that is,

without counsel), without prior leave of that court. See Hong ORDERED that Plaintiff's Complaint (Dkt. No. 1) is

Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.2005) (“If a litigant DISMISSED with prejudice; and it is further

has a history of filing vexatious, harassing or duplicative

lawsuits, courts may impose sanctions, including restrictions ORDERED that Plaintiff is hereby directed to show cause,

on future access to the judicial system.”) [internal quotations within thirty (30) days of this Decision and Order, why this

and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d Court should not issue an Order barring him from filing any

Cir.1994) (where a pro se plaintiff has demonstrated a “clear future pro se documents or motions in this action without

pattern of abusing the litigation process by filing vexatious first obtaining leave of the Court. In the event that Plaintiff

and frivolous complaints,” a “leave to file” requirement fails to show such cause, he will be prohibited from filing,

without counsel) without prior leave of the Court, pursuant normally used for litigants seeking redress of alleged

to 28 U.S.C. § 1651(a) and the Court's inherent authority to constitutional violations through 42 U.S.C. § 1983. An

control and manage its own docket so as to prevent abuse action commenced pursuant to 42 U.S.C. § 1983 requires

in its proceedings. proof of the “deprivation of any right[ ], privilege[ ], or

immunit[y] secured by the Constitution” or laws of the federal

government. 42 U.S.C. § 1983; see also German v. Fed.

Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D .

REPORT–RECOMMENDATION and ORDER

N.Y.1995) (“Section 1983 establishes a cause of action for the

CHRISTIAN F. HUMMEL, United States Magistrate Judge. deprivation of any rights, privileges, or immunities secured by

the Constitution and laws of the United States.”) (quotations

The Clerk has sent to the Court for review a complaint filed by omitted).

pro se plaintiff Robert H. Ajamian (“Ajamian”). Compl. (Dkt.

No. 1). Ajamian has not paid the filing fee and instead seeks *5 Ajamian's § 1983 action should be dismissed for multiple

permission to proceed with this matter in forma pauperis reasons. First, Ajamian fails to state a cognizable cause

(“IFP”). Dkt. Nos. 2, 5–6, 9, 12–14. of action for which relief can be granted. It is unclear to

the Court what civil or constitutional rights were allegedly

violated since Ajamian fails to specify the nature of such

rights. Ajamian only alleges that defendant failed to make

I. Discussion

conservative trades on his behalf. Furthermore, the named

defendant Nimeh is not asserted to have acted under the color

A. Application to Proceed IFP of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d

Cir.1994) (noting state action requirement under § 1983);

Ajamian has submitted an IFP Application. Despite the

Wise v. Battistoni, No. 92–CV–4288 (PKL),1992 WL 380914,

absence of a properly completed IFP application before the

Court, due to significant efforts made by Ajamian, coupled

at *1 (S.D.N.Y. Dec. 10, 1992) (same) (citations omitted).1

with a review of the information provided therein, the Court State action is an essential element of any § 1983 claim. See

finds that Ajamian may properly proceed with this matter IFP. Gentile v. Republic Tobacco Co., No. 95–CV–1500 (RSP)

(DNH), 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995)

(citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776

(N.D.N.Y.1994) (citation omitted)). There is no allegation

B. Allegations in the Complaint that Nimeh acted under color of state law with regard to

the stock trades. As such, § 1983 is not the proper vehicle

Section 1915(e) of Title 28 of the United States Code directs

through which Ajamian could seek judicial review of his

that, when a plaintiff seeks to proceed IFP, “the court shall

claims. Accordingly, to the extent Ajamian seeks to remedy

dismiss the case at any time if the court determines that ... the

a constitutional violation through § 1983, the complaint fails

action or appeal (i) is frivolous or malicious; (ii) fails to state a

to state a cause of action to which relief can be granted and

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

should be dismissed.

relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to

determine that a plaintiff may properly maintain his complaint 1 All unpublished opinions cited to by the Court

before permitting him to proceed with his action. in this Report–Recommendation are, unless

otherwise noted, attached to this Recommendation.

Ajamian asserts that defendant Nimeh, a stock broker, Ajamian also asserts that Nimeh violated his rights under

violated his constitutional rights by placing non-conservative “U.S. civil statutes 22 A.L.R. 5th 261, 152 A.L.R. Fed. 1.”

trades using his retirement account between March 2005 Compl. at 1. Reliance on either authority is misplaced. Both

and September 2011, which resulted in a $30,000.00 loss. references are not to federal statutes but to American Law

Compl. at 2–4. Ajamian contends that he is entitled to treble Reports articles, the former concerns statutes on assaults

damages, or $90,000.00. Id. For a more complete statement motivated by hate crimes and ethnic intimidation while the

of Ajamian's claims, reference is made to the complaint. latter discusses governmental actions that constitute “reverse

261 (1994). The complaint is devoid of any factual allegations the amount in controversy is set at $90,000.00, thus meeting

concerning these legal issues. Therefore, despite Ajamian's the amount in controversy requirement, Ajamian has failed

conclusory statements, he has failed to state a claim in citing to satisfy the domicile requirement for purposes of diversity

these articles. jurisdiction. Accordingly, where the domicile requirement is

unmet, diversity jurisdiction does not exist and the Court

It is well established that a federal court is obligated to lacks subject matter jurisdiction to consider the action. When

notice on its own motion the basis for its own jurisdiction; subject matter jurisdiction is lacking, dismissal is mandatory.

thus, the Court must examine whether diversity jurisdiction United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R.

exists. City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, CIV. P. 12(h)(3) (“If the court determines at any time that it

512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 lacks subject-matter jurisdiction, the court must dismiss the

F.2d 591, 605 (2d Cir.1988) (challenge to subject matter action.”). Thus, dismissal of this action may be warranted.

jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3)

(court may raise basis of its jurisdiction sua sponte ). To the extent Ajamian seeks to bring criminal charges

Ajamian asserts the following claims, “breach of fiduciary against Nimeh, Ajamian lacks a cognizable right in that

duty, misrepresentation/non-disclosure, activity suitability, regard. It is well-settled law in this Circuit that there is no

unauthorized trading, breach fo contract, error charges, constitutional right to have criminal wrongdoers prosecuted.

failure to supervise, margin calls, negligence, criminal See Connecticut Action Now, Inc. v. Roberts Plating Co., 457

misrepresentation, fraudulent concealment....” Compl. at 1. F.3d 81, 86–87 (2d Cir.1972) (“It is a truism ... that in our

Thus, the Court considers whether it has subject matter federal system crimes are always prosecuted by the Federal

jurisdiction under 28 U.S.C. § 1332, which confers diversity Government, not by ... private citizens.”).

jurisdiction.

Lastly, attached to Ajamian's complaint is a “FINRA

*6 For diversity jurisdiction to exist, the matter in [ (“Financial Industry Regulatory Authority”) ] dispute

controversy must exceed $75,000 and must be between resolution claim information tracking form” dated July 19,

2013, which indicates that a claim was filed against Nimeh,

(1) citizens of different States; to be resolved through arbitration proceedings. Compl. at

5–8. While Ajamian does not refer to a FINRA arbitral

(2) citizens of a State and citizens or subjects of a foreign

award in his complaint, allege specifics facts surrounding

state;

the circumstances of an arbitral award, request specific

(3) citizens of different States and in which citizens or judicial action on such an award, or attach the award to his

subjects of a foreign state are additional parties; and complaint, it appears that Ajamian filed a claim with FINRA

for arbitration proceedings to resolve disputes against Nimeh.

(4) a foreign state, defined in section 1603(a) of this title, Furthermore, Ajamian alludes to an arbitration proceeding

as plaintiff and citizens of a State or of different States. by inserting an arbitration number in the caption of his

complaint. Compl. at 1. In light of his pro se status, the

28 U.S.C. § 1332(a). For purposes of diversity jurisdiction, Court recommends that Ajamian be afforded an opportunity

an individual's citizenship is the individual's domicile, which to amend his complaint to make clear this cause of action.

is determined on the basis of two elements: “(1) physical Ajamian should also be provided an opportunity to provide

presence in a state and (2) the intent to make the state a home.” more facts in his amended complaint which would allow the

See Zimak Co. v. Kaplan, No. 98–CV–3176(DAB)NRB., Court, and defendant, to assess whether a meritorious action

1999 WL 38256, at *2 (S.D.N.Y. Jan. 28, 1999) (quoting is stated.

15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL

PRACTICE ¶ 102.34[2] (3d ed.1998)). Corporations are

deemed to be “a citizen of any State by which it has been

incorporated and of the State where it has its principal place II. Amendment

of business[.]” 28 U.S.C. § 1332(c).

*7 In sum, Ajamian's complaint in its current form fails to

state a claim for relief and fails to state the Court's subject

In the “Parties” section of the complaint and civil cover

matter jurisdiction. As such, dismissal would be appropriate

light of Ajamian's pro se status, this Court recommends that 28 U.S.C. § 1915 and § 1915A, plaintiff's complaint is

prior to dismissing this action, Ajamian be directed to amend DISMISSED for failure to state a claim upon which relief can

his complaint to provide clearer details regarding his claim. be granted and for lack of subject matter jurisdiction; and it

Ajamian is directed to draft a complaint which satisfies the is further

plausibility standard outlined in Ashcroft v. Iqbal, 556 U.S.

662 (2009), requiring plaintiffs to “plead [ ] factual content

RECOMMENDED that alternatively, in light of plaintiff's

pro se status, prior to dismissing plaintiff's complaint in

that allows the court to draw the reasonable inference that

its entirety, he be provided an opportunity to amend his

the defendant is liable for the misconduct alleged.” Id. at

complaint to amplify the facts that would support his claim

678 (citations omitted). Specifically, Ajamian is directed to

for entitlement to relief; and it is further

draft a complaint which Ajamian have to allege specific facts

sufficient to plausibly state that the FINRA arbitration award,

if it exists, merits judicial review.

ORDERED that the Clerk serve a copy of this Report–

Recommendation and Order on the parties in accordance with

the Local Rules.

III. Conclusion Pursuant to 28 U.S.C. § 636(b)(1), the parties may

lodge written objections to the foregoing report. Such

WHEREFORE, it is hereby

objections shall be filed with the Clerk of the Court

“within fourteen (14) days after being served with a copy

ORDERED that plaintiff's IFP application (Dkt.Nos.12–

of the ... recommendation.” N.Y.N.D.L.R. 72.1(c) (citing

14)2 is GRANTED;3 and it is further

28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT

TO THIS REPORT WITHIN FOURTEEN DAYS WILL

2 Plaintiffs' pending letter motions and exhibits PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

(Dkt.Nos.12–14) were filed in support of his IFP 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892

application, which was first filed on March 24, F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

2014 (Dkt. No. 2). 72, 6(a), 6(e).

3 Plaintiff should note that although his IFP

Application has been granted, plaintiff will still be Filed May 22, 2014.

required to pay fees that he may incur in this action,

All Citations

including copying and/or witness fees.

Not Reported in F.Supp.3d, 2014 WL 6078425

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

2010 WL 5185047 York State Department of Correctional Services, commenced

Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his

United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in

S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane

green [sic ]” and that defendant Bernstein “did not want

David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009

v. (Docket Item 2) (“Compl.”), at 3).

BERNSTEIN, MD, Defendant.

The action was originally commenced against two defendants

No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed

| as to Dr. Finkelstein because the complaint contained no

Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order

dated February 18, 2010 (Docket Item 9)).

REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr.

Bernstein—filed the current motion. Plaintiff failed to submit

1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an

Order advising plaintiff that if he wished to oppose the

the Honorable Leonard B. Sand, United States

motion, he must submit his opposition by September 15, 2010

District Judge, granted plaintiff's application for in

and that after that date I would consider the motion fully

forma pauperis status based on plaintiff's ex parte

submitted and ripe for decision (Order dated August 20, 2010

submission (Docket Item 1). Although the present

(Docket Item 15)). The only submission plaintiff has made

application seeking to revoke plaintiff's in forma

in response to my Order is a multi-part form issued by the

pauperis status is non-dispositive, I address it by

New York State Department of Correctional Services entitled

way of a report and recommendation to eliminate

“Disbursement or Refund Request.”2 By this form, plaintiff

any appearance of a conflict between the decision

appears to request that the New York State Department of

of a district judge and that of a magistrate judge.

Correctional Services pay the filing fee for this action. The

form is marked “Denied.”

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers,

States District Judge, and it has not been docketed by the Clerk of the

Court. The form will be docketed at the time this

Report and Recommendation is issued.

I. Introduction

By notice of motion dated March 4, 2010 (Docket Item 11),

III. Analysis

defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke

28 U.S.C. § 1915 permits an indigent litigant to commence

plaintiff's in forma pauperis (“IFP”) status on the ground that

an action in a federal court without prepayment of the filing

plaintiff has previously had at least three Section 1983 actions

fee that would ordinarily be charged. Although an indigent,

dismissed as frivolous, malicious or failing to state a claim

incarcerated individual need not prepay the filing fee at the

upon which relief could be granted, and has not shown that he

time at the time of filing, he must subsequently pay the fee,

is in imminent danger of serious physical injury. Defendant

to the extent he is able to do so, through periodic withdrawals

further seeks an order directing that the action be dismissed

from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.

unless plaintiff pays the full filing fee within thirty (30) days.

City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent

For the reasons set forth below, I respectfully recommend that

abuse of the judicial system by inmates, paragraph (g) of

defendant's motion be granted.

this provision denies incarcerated individuals the right to

proceed without prepayment of the filing fee if they have

II. Facts repeatedly filed meritless actions, unless such an individual

Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David

curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In

judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that

Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN,

assigned to him by the New York State Department

of Correctional Services (“DOCS”) is 94–B–0694

*2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records

a civil action or appeal a judgment submitted by plaintiff in connection with his

in a civil action or proceeding under application for IFP status indicate that DIN 94–

this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition,

3 or more prior occasions, while the DOCS form described in footnote two bears

incarcerated or detained in any facility, the docket number of this action, but is signed in

brought an action or appeal in a court the name of Dennis Nelson and was sent in an

of the United States that was dismissed envelope identifying the sender as Dennis Nelson.

on the grounds that it is frivolous, A subsequent action has been filed in this Court

malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis

which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same

prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has

serious physical injury. submitted nothing to controvert the assertion in

defendant's papers that David Cash and Dennis

Nelson are the same person. In light of all these

28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis

Nelson are both names used by plaintiff.

If an inmate plaintiff seeks to avoid prepayment of the filing

fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),

there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff

asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care

F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable

Thomas J. McAvoy, United States District Judge,

Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate

in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and

The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had

plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had

occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1,

*7.

• In 2005, plaintiff commenced an action in the United

States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)

York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),

Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status

WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three

the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under

District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent

Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215

United States Magistrate Judge, that plaintiff had at *1–*2.

brought three or more prior actions that had been

• Finally, in Nelson v. Chang, No. 08–CV–1261

dismissed for failure to state a claim and that plaintiff's

(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,

IFP status should, therefore, be revoked. 2007 WL

2009), the Honorable Kiyo A. Matsumoto, United

cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding

the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical

and could not proceed IFP in the absence of a injury.5

demonstration of an imminent threat of serious

physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his

*3 As defendant candidly admits, there is one case in which

wound and its symptoms in detail, and I have

plaintiff's leg infection was found to support a finding of an

no doubt that the wound is serious. However, in

imminent threat of serious physical injury sufficient to come

granting summary judgment dismissing an action

within the exception to Section 1915(g). Nelson v. Scoggy,

last year based on the same allegations, Judge

No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2

Mordue of the Northern District found that there

(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment

was no genuine issue of fact that plaintiff's own

was subsequently granted for defendants in that case, and

conduct was responsible for the ineffectiveness of

the complaint was dismissed. Judge Mordue concluded that

the treatment he was provided:

there was no genuine issue of fact that plaintiff had received

Furthermore, to the extent that Nelson's medical

adequate medical care for his leg wound and that the failure

treatment was delayed, much of the delay

of the leg to heal was the result of plaintiff's own acts of

was due to his own refusal to cooperate with

self-mutilation and interference with the treatment provided.

medical staff and his self-mutilations. Nelson's

Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009

actions to thwart the medical treatment of his

WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4

wound cannot be construed as interference or

indifference by anyone else.... [T]he medical

4 Although the form complaint utilized by plaintiff treatment Nelson received complied with

expressly asks about prior actions involving the constitutional guarantees as it was appropriate,

same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own

action and expressly denied the existence of any actions.

other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.

at 6). Given plaintiff's total failure to respond to the

pending motion and his failure to even deny that

In light of the foregoing, there can be no reasonable dispute

he is actively thwarting treatment of his wound, it

that plaintiff has exceeded the three “strikes” allowed by

would be sheer speculation for me to conclude that

Section 1915(g) and that he cannot, therefore, proceed here

he is in imminent danger of a serious injury as a

without prepaying the filing fee unless he demonstrates

result of defendant's conduct.

an imminent threat of serious physical injury. Plaintiff has

declined to attempt to make this showing in response to

defendant's motion, and the only suggestion in the record IV. Conclusion

of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff

complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being

[a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that

5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be

speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further

in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays

v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion.

White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);

see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)

V. OBJECTIONS

(imminent danger exception to Section 1915(g) requires

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of

“specific fact allegations of ongoing serious physical injury,

the Federal Rules of Civil Procedure, the parties shall have

or of a pattern of misconduct evidencing the likelihood

fourteen (14) days from receipt of this Report to file written

of imminent serious physical injury”). Given the plaintiff's

with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d

Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,

500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–

undersigned, 500 Pearl Street, Room 750, New Yor

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