Scott v. Crossway

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JAMES P. SCOTT,

Plaintiff,

V.

No. 1:22-CV-500

DINAH M. CROSSWAY, ESQ.,, et al., (BKS/CFH)

Defendants.

APPEARANCES:

James P. Scott

8815 Frostwood Court

Tampa, Florida 33634

Plaintiff pro se

I

REPORT-RECOMMENDATION AND ORDER

I. In Forma Pauperis

Plaintiff pro se James P. Scott (“plaintiff”) purported to commence this action on

May 13, 2022, by filing a complaint. See Dkt. No. 1 (“Compl.”). In lieu of paying this

Court’s filing fee, he submitted a motion to proceed in forma pauperis (“IFP”). See Dkt.

m}No. 2. The undersigned has reviewed plaintiffs IFP motion and determines that he

financially qualifies to proceed IFP for the purpose of filing."

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

costs he may incur in this action.

ll. Initial Review

A. Legal Standard

Section 1915? of Title 28 of the United States Code directs that, when a plaintiff

seeks to proceed IFP, “the court shall dismiss the case at any time if the court

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

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

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

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

proceed with his action.

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

her] submissions liberally and interpret them to raise the strongest arguments that they

m| Suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation

omitted).

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

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

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

entitled to relief.” FED. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the

claim being asserted so as to permit the adverse party the opportunity to file a

responsive answer, prepare an adequate defense and determine whether the doctrine

m| Of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999)

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

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

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

form is required,” the Federal Rules make clear that each allegation contained in the

pleading “must be simple, concise, and direct.” Id. at 8(d)(1).

Further, Rule 10 provides in pertinent part that:

[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set

of circumstances. A later pleading may refer by number to a

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence — and each defense other than a denial — must

be stated in a separate count or defense.

R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of

identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189

F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to

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

defendants’ duty to shape a comprehensive defense and provides no meaningful basis

the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.

352, 355 (N.D.N.Y. 1996). The Second Circuit has held that “[w]hen a complaint does

not comply with the requirement that it be short and plain, the court has the power, on

its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42

(2d Cir. 1988) (citation omitted). However, “[d]ismissal . . . is usually reserved for those

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

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

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

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

1995).

B. Plaintiff's Complaint

Plaintiff purports to bring this action against Dinah M. Crossway, Esq., (“Attorney

Crossway”) Counsel for the New York State Department of Motor Vehicles (“DMV”);

“Unknown State Actors” in the DMV; and Judge Frank P. Milano of the New York State

Court of Claims. Compl. at 2. In 2017, while residing in Florida, plaintiff was informed

by the Florida DMV that his driver’s license was being temporarily suspended because

of “an ineligible status reported to the National Driver Registry” by the New York State

DMV’s Driver Improvement Unit. Id. at 3. Plaintiff was told that his Florida license

would be suspended until New York State removed the ineligible status. See id.

Plaintiff “had not driven in [New York] since the year 2005 and had no knowledge of any

issues regarding his [New York] driving privileges.” Id. Plaintiff “file[d] an Order to

Show Cause and Verified Petition in Albany County Supreme Court seeking primary

relief of the removal of the hold in the National Driver Registry [and] . . . requested

o secondary relief of monetary damages in the proceeding.” Id. Plaintiff submitted a

“certified letter” to the DMV “demanding it remove the hold under his name in the

National Driver Registry. Plaintiff enclosed a copy of his Florida Driving Abstract

certified by the Director of Motor Vehicles in the State of Florida.” Id. at 4. Plaintiff

states that, “[t]his abstract, which is the only valid driving record in this case, did not

show any driving infractions in [New York] after the year 2005.” Id.

On an unspecified date, prior to or during an Article 78 proceeding, plaintiff

contends that “Unknown State Actors” in the DMV falsified documents related to his

driving record “for the purpose of inducing the court to dismiss the petition for relief.”

Compl. at 3-4. “The [] Article 78 proceeding Decision and Order denied the state

agency’s motion to dismiss and [p]laintiff's secondary relief for monetary damages with

the Supreme Court citing its lack of jurisdiction to award in the special proceeding.” Id.

at 3. Plaintiff asserts that during the Article 78 proceeding, Attorney Crossway

“committed the act of civil fraud by providing false statements and falsified records

and/or documents pertaining to [p]laintiff's New York [S]tate driving records . . . for the

purpose of inducing the court to dismiss [p]laintiff's petition for relief.” Id. at 4. Attorney

Crossway “provided affirmations in the Article 78 stating that she had not only had

personal knowledge of the case as a thirteen-year staff attorney for the NYS DMV

Driver Improvement Unit, but had also consulted with unnamed authorities in the NYS

DMV and had reviewed the records provided by them.” Id. Plaintiff contends that

Attorney Crossway was “aware that [p]laintiff did not have any court cases, open

revocations or relicensing applications in [New York] when she made these false

statements.” Id.

o “The case ended in a final Judgment entered on April 15, 2019, with [p]laintiff

prevailing. The Supreme Court ordered the Driver Improvement Unit to restore

[p]laintiff's [New York] driving privileges forthwith. On May 15, 2019, the state agency’s

appeals period expired and it restored [New York] driving privileges.” Compl. at 3.

“Plaintiff served Notice of Intention to File Claim on the [New York State] Attorney

General’s Office on April 26, 2019, 11 days after the final Judgment was entered. The

m| Claim itself was not filed until the state agency complied with the court order to remove

the hold from the National Driver Registry.” Id.

In adjudicating plaintiff's Court of Claims case, he asserts that Judge Milano

“violated [p]laintiff's due process by unlawfully dismissing the claim, preventing him from

seeking compensation for losses incurred from the wrongful actions against him.”

Compl. at 4. Judge Milano's “Decision and Order did not decide on the arguments

brought forth by the defense in its motion to dismiss but instead was effectively a review

of the administrative agency's actions, which the Court of Claims has no jurisdiction

over.” Id. at 5. Plaintiff states that Judge Milano's decision contradicted the Supreme

Court’s “Judgment determining the state agency's actions to be arbitrary and capricious

and an error of law. Judge Milano did not address any of the issues settled by the

Supreme Court.” Id. He also asserts that “[t]he Supreme Court, not the Court of

Claims, is the court of original jurisdiction or court of original instance in this case.” Id.

Plaintiff contends that prior to filing the present complaint, he “exhausted all remedies in

[New York State] courts by appealing Judge Milano’s Decision and Order to the Third

Department and motioning for leave to appeal in the Court of Appeals.” Id.

Plaintiff seeks four million dollars “for the wrongful deprivation of his property and

°| for civil fraud committed by the unknown state actors and their counsel Dinah M.

Crossway, Esq.” Compl. at 6. Plaintiff “does not request relief in the form of monetary

damages from Honorable Frank P. Milano in this complaint, but instead asks the Court

for relief of all orders made in violation of law, that due process be allowed, and the

Court issue further relief as it deems appropriate.” Id.

C. Analysis

i Plaintiff's complaint can be construed as raising Fourteenth Amendment

substantive and procedural due process claims brought pursuant to 42 U.S.C. § 1983.

1. The Rooker-Feldman Doctrine

As an initial matter, the Court lacks subject matter jurisdiction over the claims

against Judge Milano under the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983). “The Rooker-Feldman doctrine provides that the lower federal courts lack

subject matter jurisdiction over a case if the exercise of jurisdiction over that case would

result in the reversal or modification of a state court judgment.” Hachamovitch v.

DeBuono, 159 F.3d 687, 693 (2d Cir. 1998). For the Rooker-Feldman doctrine to apply:

(1) “the federal-court plaintiff must have lost in state court[]”; (2) “the plaintiff must

complain{] of injuries caused by [a] state-court judgment[]”; (3) “the plaintiff must invit[e]

district court review and rejection of [that] judgment[]”; and (4) “the state-court judgment

must have been rendered before the district court proceedings commenced[.]” Hoblock

v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (citations and quotation

marks omitted).

All four elements are met here: (1) plaintiff's claim seeking monetary damages fo

the DMV'’s actions in the Court of Claims was dismissed by Judge Milano—i.e., he “lost”

state court; (2) plaintiff states that he was “wrongfully denied” the opportunity to seek

compensation for the DMV’s actions because of the dismissal; (3) he asks this Court for

relief from “all orders made in violation of law [and] that due process be allowed”; and

(4) Judge Milano’s decision was rendered prior to plaintiff filing the present action.

Compl. at 6; see also Scott v. State of New York, No. 2019-041-061, slip op. at 1-4 (Ct.

Cl. Sept. 30, 2019).° Accordingly, the Court is barred from reviewing plaintiffs

Complaint against Judge Milano and it is recommended that the claim against Judge

Milano be dismissed without prejudice. See Fraccola v. Grow, 670 F. App’x 34, 35 (2d

Cir. 2016) (summary order) (internal citation omitted) (“The Rooker-Feldman doctrine

precludes district court review as a matter of subject matter jurisdiction. When a court

lacks subject matter jurisdiction, it lacks the power to dismiss with prejudice[.]”).

The undersigned comes to a different conclusion as to Attorney Crossway and

m| the “Unknown State Actors.” The Second Circuit has distinguished between complaints

that “alleged injuries were caused by state-court [a] judgment[]” and those that complain

of “third party’s actions [that were] simply ratified, acquiesced in, or left unpunished by

it.” Sung Cho v. City of New York, 910 F.3d 639, 645-46 (2d Cir. 2018) (quoting

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

been provided to plaintiff. New York Court of Claims decisions can be searched online through the

following domain: https:/Avw2.nycourts.gov/COURTS/nyscourtofclaims/overview-decisions.shtml.

Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 88 (2d Cir. 2005)). The former is

barred by the Rooker-Feldman doctrine and the latter is not. See id. at 645-46.

Plaintiffs complaint against Attorney Crossway and the “Unknown State Actors” does

not allege that their conduct was the result of a state-court judgment, but instead

contends that their conduct was left unchecked by the Article 78 proceeding and Judge

| Milano’s decision. See Compl. at 3-5. As plaintiff's claims against them do not “derive”

from a state-court judgment, the claims are not barred by the Rooker-Feldman doctrine.

Sung Cho, 910 F.3d at 646 (quoting Hoblock, 422 F.3d at 87). Nevertheless, the claims

against Attorney Crossway and the “Unknown State Actors” are barred by the statute of

limitations.

2. Statute of Limitations

“The statute of limitations for claims brought pursuant to § 1983 is determined by

state law, and in New York State, the statute of limitations for actions brought pursuant

to § 1983 is three years.” Johnson v. Fargione, No. 1:20-CV-764 (LEK/CFH), 2021 WL

1406683, at *3 (N.D.N.Y. Feb. 17, 2021). “Under federal law, which governs the accrua

of claims brought under § 1983, . . . a claim accrues once the plaintiff knows or has

reason to know of the injury which is the basis of the action[.]” Veal v. Geraci, 23 F.3d

m| 722, 724 (2d Cir. 1994) (citations and quotation marks omitted). Plaintiff challenges

statements made, and documents submitted, during his Article 78 proceeding. See

Compl. at 4. Plaintiff does not provide the date of the proceeding. See generally

Compl. Instead, plaintiff provides the date of the “final Judgment” on April 15, 2019.4

4 The undersigned notes that in Judge Milano’s Court of Claims Decision, he stated that plaintiff's “driving

privileges were restored pursuant to a CPLR Article 78 Judgment of the Albany County Supreme Court

issued on April 4, 2019.” Scott, No. 2019-041-061, slip op. at 1.

Id. at 3. It is likely that plaintiff's claims accrued at the time he heard and observed the

alleged falsified statements and documents. See id. The Appellate Division of the Thir

Department stated that plaintiff commenced his Article 78 proceeding in August 2018.

See Scott v. State, 1217, 149 N.Y.S.3d 297 (2021), appeal dismissed, leave to appeal

denied, 184 N.E.3d 889 (2022). However, neither plaintiff, the Court of Claims, or the

Third Department have stated the date of the proceeding. Thus, the undersigned

cannot perform a more specific analysis. Assuming for the purposes of initial review

that the final judgment from the Article 78 proceeding was the time that plaintiff knew of

his injuries from the “Unknown State Actors” and Attorney Crossway’s conduct, he

would have had to file his complaint three years later, by April 15, 2022. Plaintiff filed

his claim on May 13, 2022. See generally Compl. Thus, the claims are time-barred.

See LaPietra v. City of Albany Police Dep't, No. 9:19-CV-1527 (TJM/TWD), 2020 WL

5891888, at *10 (N.D.N.Y. Oct. 5, 2020) (“[A]lthough the statute of limitations is an

affirmative defense, where it is clear from the face of the complaint that a claim is barred

by the applicable statute of limitations, the claim is subject to dismissal for failure to

state a claim on initial review.”) (citing Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995)

(holding that dismissal of “a complaint is based on an indisputably meritless legal

| theory, for purposes of dismissal under section 1915(d), may be based on a defense

that appears on the face of the complaint.”)), report and recommendation adopted, 2020

WL 7021589 (N.D.N.Y. Nov. 30, 2020).

To the extent it appears from the only date that plaintiff provided, April 15, 2019,

that he filed his complaint less than one month late on May 13, 2022, “[e]quitable tolling

permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence

10

he is unable to obtain vital information bearing on the existence of his claim.” Valdez ex

rel. Donely v. United States, 518 F.3d 173, 182 (2d Cir. 2008) (citation omitted); see

also Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (“Equitable tolling allows

courts to extend the statute of limitations beyond the time of expiration as necessary to

avoid inequitable circumstances.”). “A litigant seeking equitable tolling bears the burden

| of establishing two elements: (1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way.” Victorial v. Burge, 477 F.

Supp. 2d 652, 654 (S.D.N.Y. 2007) (quotation and citation omitted); see also Boos v.

Runyon, 201 F.3d 178, 185 (2d Cir. 2000) (“The burden of demonstrating the

appropriateness of equitable tolling . . . lies with the plaintiff.”). “Equitable tolling is a

rare remedy to be applied in unusual circumstances, not a cure-all for an entirely

common state of affairs.” Wallace v. Kato, 549 U.S. 384, 396 (2007).

There is nothing in plaintiff's complaint to suggest that equitable tolling could

save his time-barred claims concerning the actions taken before and during the Article

78 proceeding, or the subsequent final judgment. See generally Compl. First, the

undersigned is not aware of anything that prevented plaintiff from simultaneously filing

suit in federal court and in the New York Court of Claims. See also Frankel v. J.P.

Morgan Chase & Co., 907 N.Y.S.2d 281, 284 (2010) (“[T]here is no strict legal bar to th

existence of simultaneous actions concerning the same subject matter in state and

federal court[.]”). Rather, the Court of Claims denied jurisdiction over plaintiff's federal

and state constitutional challenges which he now brings to this Court. See Scott, No.

2019-041-061, slip op. at 3 (citation omitted) (“To the extent claimant alleges federal or

state constitutional causes of action against defendant, the law is settled that ‘claims for

11

damages against the State based on alleged deprivations of rights under the US

Constitution are beyond the jurisdiction of the Court of Claims[.]”); cf. Reed v. Medford

Fire Dep't, Inc., 806 F. Supp. 2d 594, 613-14 (E.D.N.Y. 2011) (citation omitted) (“[T]he

Second Circuit has explicitly held that a plaintiff is not barred from bringing a Section

1983 claim ‘[even where .. . it is based upon the same cause of action as the Article 78

o proceeding’, if the plaintiff is seeking damages that were unavailable in the Article 78

court.”).

To the extent plaintiff was in the process of filing his claim in the Court of Claims

and appealing the Court of Claims decision in state court, “[t]he reference to ‘knowledge

of injury’ [in the equitable tolling standard] does not suggest that the statute [of

limitations] does not begin to run until the claimant has received judicial verification that

the defendants’ acts were wrongful.” Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1995);

cf. Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007) (“We have held . . . that a plaintiff's

pursuit of a state remedy, such as an Article 78 proceeding, does not toll the statute of

limitations for filing a claim pursuant to section 1983.”). This suggests that plaintiff's

claims are time-barred not by the date of the final judgment, but by the earlier date of

the Article 78 proceeding. Moreover, “[c]ongress has neither explicitly nor implicitly

| required exhaustion of state remedies to bring section 1983 claims under the []

Fourteenth Amendment[] outside of the context of prisoner suits.” Bal v. Manhattan

Democratic Party, No. 16-CV-2416 (PKC), 2018 WL 6528766, at *4 (S.D.N.Y. Dec. 12,

2018); see also Chase Grp. All. LLC v. City of N.Y. Dep’t of Fin., 620 F.3d 146, 153 (2d

Cir. 2010) (citation omitted) (“This is not by any means to say that valid Section 1983

claims based on due process violations require exhaustion of state remedies. But

12

‘Iw]hen § 1983 claims allege procedural due process violations, we nonetheless

evaluate whether state remedies exist because that inquiry goes to whether a

constitutional violation has occurred at all.’”).

Based on the foregoing, it appears that equitable tolling is inapplicable and

cannot be applied to save plaintiff's time-barred claims. However, in light of plaintiff's

pro se status, the lack of specific information concerning the date of the Article 78

proceeding, and the closeness in time between the expiration of the statute of

limitations and the filing of plaintiffs complaint, it is recommended that the claims

against Attorney Crossway and the “Unknown State Actors” not be dismissed on statute

of limitations grounds but based on immunity and failure to state a claim, respectively.

See Abbas, 480 F.3d at 640 (citations omitted) (“[U]nless it is unmistakably clear that

| the court lacks jurisdiction, or that the complaint lacks merit or is otherwise defective, w

believe it is bad practice for a district court to dismiss without affording a plaintiff the

opportunity to be heard in opposition. Indeed, failure to afford an opportunity to oppose

a contemplated sua sponte dismissal may be, by itself, grounds for reversal.”).

3. Attorney Crossway

Plaintiff does not specify whether he seeks to sue Attorney Crossway in her

| Official or personal capacity. See generally Compl; see also Ying Jing Gan v. City of

New York, 996 F.2d 522, 530 (2d Cir. 1993) (citations and quotation marks omitted)

(“[IIn many cases, a complaint against public officials will not clearly specify whether

Officials are sued personally, in their official capacity, or both, and only [t]he course of

proceedings . . . will indicate the nature of the liability to be imposed[.]”); Green v.

Sschmelzle, 210 F. Supp. 3d 454, 466 (W.D.N.Y. 2016) (quoting Frank v. Relin, 1 F.3d

13

1317, 1326 (2d Cir. 1993)) (“[W]hen the face of a complaint fails to state clearly whether

a government official is being sued in his official capacity, or his individual capacity, or

both, courts look to the course of the proceedings to determine the nature of the liability

to be imposed. Thus, a plaintiff who has not clearly identified in her complaint the

capacity in which the defendant is sued should not have the complaint automatically

| construed as focusing on one capacity to the exclusion of the other.”). Plaintiff's

allegations concern Attorney Crossway’s actions taken in her capacity as counsel for

the DMV before and during the Article 78 proceeding. See Compl. at 4-5. At this early

stage, the undersigned will consider whether either a personal or official capacity claim

can survive initial review.

As to an official-capacity suit, “the DMV is an agency acting on behalf of the

m| State of New York and is entitled to sovereign immunity under the Eleventh Amendment

in [a] § 1983 claim.” Sandoval v. Dep’t of Motor Vehicles State of New York, 333 F.

Supp. 2d 40, 43 (E.D.N.Y. 2004) (citing Feingold v. State of New York, 366 F.3d 138,

149 (2d Cir. 2004) (“[W]e find that [the plaintiff's] § 1983 claim is clearly barred by the

Eleventh Amendment because the DMV is a state agency”)). Courts have extended

Eleventh Amendment immunity to government attorneys representing state agencies

who are sued in their official capacities. See Wolters v. Att'y Gen., N.Y. State, No. 12-

CV-1544 (KAM/SMG), 2012 WL 1416706, at *3 (E.D.N.Y. Apr. 24, 2012) (“As officials

who represent agencies of the State of New York, the Queens County District Attorney,

the Richmond County District Attorney, the New York State DMV Commissioner, and

the New York State Attorney General are all entitled to immunity under the Eleventh

Amendment.”); Clark v. Schroeder, 847 F. App’x 92, 94 (2d Cir.) (Summary order)

14

(affirming dismissal of a complaint against the Commissioner of the DMV because of

Eleventh Amendment immunity), cert. denied, 142 S. Ct. 341 (2021). To the extent

plaintiff seeks to sue Attorney Crossway in her official capacity, she is entitled to

Eleventh Amendment immunity as an attorney for the New York State DMV.

Next, to the extent plaintiff seeks to sue Attorney Crossway in her personal

o capacity, she is entitled to absolute immunity. It is well settled that prosecutors are

absolutely immune from suit. See Anilao v. Spota, 27 F.4th 855, 863 (2d Cir. 2022)

(“The doctrine of absolute immunity applies broadly to shield a prosecutor from liability

for money damages (but not injunctive relief) in a § 1983 lawsuit, even when the result

may be that a wronged plaintiff is left without an immediate remedy.”). “[T]he Supreme

Court extended prosecutorial immunity to government attorneys involved in

administrative proceedings.” Roache v. Att'y Gen.’s Off., No. 9:12-CV-1034 (LEK/DEP),

2013 WL 5503151, at *14 (N.D.N.Y. Sept. 30, 2013) (citing Butz v. Economou, 438 U.S.

478, 512-13 (1978) (“We think that adjudication within a federal administrative agency

shares enough of the characteristics of the judicial process that those who participate in

such adjudication should also be immune from suit for damages.”)) “The Second

Circuit, in turn, has extended the same immunity to government attorneys prosecuting

defending civil actions.” Id. (emphasis added) (citing Barrett v. U.S., 798 F.2d 565,

572 (2d Cir. 1986) (“The controversial nature of the proceeding[s], the risk that a losing

defendant will seek to retaliate by a suit attacking the propriety of the government

attorney’s conduct, and the existence of alternative safeguards against the attorney's

misconduct . . . militate in favor of absolute immunity.”); see also Mangiafico v.

Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006) (citation and quotation marks omitted)

15

(“As a general principle, a government attorney is entitled to absolute immunity when

functioning as an advocate of the state in a way that is intimately associated with the

judicial process. ... We have expanded this principle to apply to the functions of a

government attorney that can fairly be characterized as closely associated with the

conduct of litigation or potential litigation in civil suits—including the defense of such

° actions.”).

Plaintiff seeks to sue Attorney Crossway for representations to the court in

plaintiff's Article 78 proceeding concerning his New York driver's license. See Compl. a

4. Specifically, plaintiff asserts that Attorney Crossway “knowingly misrepresented

material facts of this case to the court . . . [and] maintained that these arbitrary actions

were taken with discretion and authority to effectively revoke another state’s driver's

m| license.” Id. at 5.

As plaintiff's claims concern only Attorney Crossway’s actions taken in

representing the New York State DMV, she is entitled to absolute immunity. See Hirsch

v. Quinones, No. 21-CV-6311 (LTS), 2021 WL 3773640, at *3 (S.D.N.Y. Aug. 23, 2021)

(‘[The pllaintiff's claims against [the defendant] are based on actions within the scope of

her official duties as a government attorney representing the State of New York in the

New York State Court of Claims in cases brought by [the p]laintiff against the State of

New York. Therefore, these claims are dismissed because they seek monetary relief

against a defendant who is immune from suit.”). As such, Attorney Crossway is entitled

to Eleventh Amendment and absolute immunity whether plaintiff seeks to sue her in her

official or personal capacity, respectively. Thus, the undersigned recommends

dismissing the claims against her with prejudice and without leave to amend. See

16

Bouchard v. Thomson, No. 1:17-CV-1156 (LEK/CFH), 2018 WL 1665213, at *5

(N.D.N.Y. Apr. 4, 2018) (dismissing amended complaint without leave to amend where

“the claims [the p]laintiff asserts against [the djefendants are irreparable because they

are barred either by sovereign or prosecutorial immunity.”), aff'd sub nom. Bouchard v.

Olmsted, 775 F. App’x 701 (2d Cir. 2019) (summary order).

4. Judge Milano

As an alternative to the applicability of the Rooker-Feldman doctrine, were the

Court to have subject matter jurisdiction over plaintiff's claims against Judge Milano,

Judge Milano would be immune from suit. Cf. Fraccola, 670 F. App’x at 35 n.1 (internal

citation omitted) (“We interpret the District Court’s memorandum decision and order

dismissing [the plaintiff's] claims as resting on the Rooker-Feldman doctrine and in the

alternative on judicial immunity grounds. Because the Rooker-Feldman doctrine

implicates the subject matter jurisdiction of the District Court, the doctrine’s application

in this case should have been analyzed first and is dispositive.”). Plaintiff asserts that

Judge Milano “violated plaintiff's due process by unlawfully dismissing the claim,

preventing him from seeking compensation for losses incurred from the wrongful action

taken against him.” See Compl. at 4.

“Generally, States are immune from suit under the terms of the Eleventh

Amendment and the doctrine of sovereign immunity.” Whole Woman's Health v.

Jackson, 142 S. Ct. 522, 532 (2021). “The immunity recognized by the Eleventh

Amendment extends beyond the states themselves to ‘state agents and state

instrumentalities’ that are, effectively, arms of a state.” Woods v. Rondout Valley Cent.

Sch. Dist. Bd of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citation omitted). Eleventh

17

Amendment immunity has been extended to judges of the New York State Unified Cour

System. See Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (citation omitted)

(“[T]he New York State Unified Court System is unquestionably an ‘arm of the State,’

and is entitled to Eleventh Amendment sovereign immunity.” (citing N.Y. Const. Art. VI,

§ 29(a) (emphasis added) (“The legislature shall provide for the allocation of the cost of

o operating and maintaining the court of appeals, the appellate division of the supreme

court in each judicial department, the supreme court, [and] the court of claims .. . .”));

see also Amato v. McGinty, No. 1:21-CV-00860 (GLS/TWD), 2022 WL 226798, at *8

(N.D.N.Y. Jan. 26, 2022) (dismissing claim against Ulster Family Court judge on

sovereign and judicial immunity grounds); Aron v. Becker, 48 F. Supp. 3d 347, 367

(N.D.N.Y. 2014) (“[A]ll claims for monetary damages against . . . [County] Judge Becker

[his] official capacities are dismissed with prejudice[]” because of Eleventh

Amendment immunity); Zeigler v. New York, 948 F. Supp. 2d 271, 282 (N.D.N.Y. 2013)

(“All claims against [Administrative] Judge Tormey in his official capacity for money

damages will also be dismissed as they are barred by the Eleventh Amendment.”). As

the Court of Claims is a part of the New York State Unified Court System and to the

extent plaintiff seeks to sue Judge Milano in his official capacity, Judge Milano is entitle

to Eleventh Amendment immunity.

Plaintiff states that he does not seek monetary damages from Judge Milano “but

instead asks the Court for relief from all orders made in violation of law, that due

process be allowed, and that the Court issue further relief as it deems appropriate.”

Compl. at 6. “In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court established

an exception to state sovereign immunity in federal actions where an individual brings

18

an action seeking injunctive relief against a state official for an ongoing violation of law

or the Constitution.” Brown v. New York, 975 F. Supp. 2d 209, 222 (N.D.N.Y. 2013).

“Under the doctrine, a suit may proceed against a state official in his or her official

capacity, notwithstanding the Eleventh Amendment, when a plaintiff ‘(a) alleges an

ongoing violation of federal law and (b) seeks relief properly characterized as

prospective.” Id. (quoting In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007)).

“[D]eclaratory relief is not permitted under Ex parte Young when it would serve to

declare only past actions in violation of federal law: retroactive declaratory relief cannot

be properly characterized as prospective.” Id. at 225.

Plaintiff appears to be asking only for retrospective relief—that this Court

determine that Judge Milano’s Decision and Order was incorrect, contrary to law, and/or

unconstitutional. See id. As plaintiff seeks only declaratory relief concerning Judge

Milano’s past conduct, the claim “must be dismissed because the Eleventh Amendment

‘does not permit judgments against state officers declaring that they violated federal law

in the past.” Brown, 975 F. Supp. 2d at 226 (quoting Finch v. New York State Office of

Children & Family Serv., 499 F. Supp. 2d 521, 538, n.138 (S.D.N.Y. 2007)).

It is also “well-established that officials acting in a judicial capacity are entitled to

| absolute immunity against § 1983 actions, and this immunity acts as a complete shield

to claims for money damages.” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)

(per curiam). “[J]udicial immunity does not bar a claim for prospective injunctive and

declaratory relief.” Shtrauch v. Dowd, 651 F. App’x 72, 73 (2d Cir. 2016) (summary

order). However, because plaintiff only challenges past conduct and “does not allege

that [Judge Milano’s] conduct constitutes a continuing constitutional violation, nor does

19

he allege that it may recur[,]’ plaintiffs claim is not one for prospective relief and Judge

Milano is entitled to absolute immunity. Jackson v. Stanford, No. 16-CV-9702 (AJN),

2019 WL 13166075, at *2 (S.D.N.Y. Jan. 7, 2019) (citation omitted).

To defeat judicial immunity, plaintiff contends that Judge Milano “act[ed] without

jurisdiction, power or authority to dismiss [plaintiff's] claim for damages with no basis in

Compl. at 6. Plaintiff contends that Judge Milano’s decision “was effectively a

review of the administrative agency's actions, which the Court of Claims has no

jurisdiction over. ... Judge Milano did not address any of the issues settled by the

Supreme Court. The Supreme Court, not the Court of Claims, is the court of original

jurisdiction or court of original instance in this case.” Id. at 5.

“[A] judge is not immune for actions, though judicial in nature, taken in the

Complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 12 (1991) (per

curiam). “[T]he Court of Claims has no subject matter jurisdiction to entertain” “review

of an administrative agency's determination” “as review of such determinations are

properly brought only in Supreme Court in a[n] article 78 proceeding[.]” City of New

York v. State, 847 N.Y.S.2d 768, 771 (App. Div. 2007) (citations omitted); see also

Madura v. State, 784 N.Y.S.2d 214, 216 (App. Div. 2004) (citation omitted) (“As a court

| Of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable

relief[.]”). Additionally, “the filing requirements of Court of Claims Act § 10 are

jurisdictional in nature, and the failure to comply with such requirements deprives the

Court of Claims of subject matter jurisdiction[.]’ Hughes v. State, 963 N.Y.S.2d 350,

351 (App. Div. 2013); see also Frederick v. State, 874 N.Y.S.2d 762, 765 (Ct. Cl. 2009)

(citations omitted) (“Court of Claims Act § 10 is more than a statute of limitations; it is a

20

jurisdictional prerequisite to bringing and maintaining an action in this Court[.] Failure to

timely comply with the statutory filing requirements of the Court of Claims Act

constitutes a fatal jurisdictional defect requiring dismissall[.]”).

Judge Milano did not exercise jurisdiction over the merits of plaintiff's claim and

instead dismissed plaintiff's claim because it was untimely filed under Court of Claims

| Act § 10(3) and because plaintiff failed to state a cause of action. See Scott, No. 2019-

041-061, slip op. at 1-4. Judge Milano did not review the DMV’s actions or make any

determination as to their lawfulness. See id. at 1-4. Plaintiff states that Judge Milano

“did not decide on the arguments brought forth by the defense in its motion to dismiss[.]”

Compl. at 5. However, Judge Milano’s decision states that “Defendant moves, in lieu of

answering, to dismiss the claim . . . as untimely . . . and because the claim fails to state

Cause of action[.]’ Scott, No. 2019-041-061, slip op. at 1. It was on those two

grounds that Judge Milano dismissed plaintiff's claim. See id. at 2-4. Plaintiff's

disagreement with Judge Milano’s decision is insufficient to establish that he was acted

absent jurisdiction. See McKnight v. Middleton, 699 F. Supp. 2d 507, 524 (E.D.N.Y.

2010) (“[JJudicial immunity is not stripped based on the propriety of her particular

rulings, where there is no question as to her subject matter jurisdiction over the case.”),

aff'd, 434 F. App’x 32 (2d Cir. 2011) (summary order). As Judge Milano was not acting

absent all jurisdiction, were this Court to have subject matter jurisdiction over plaintiff's

claim against him, Judge Milano would be immune from suit. As the undersigned has

determined that this Court lacks subject matter jurisdiction over plaintiffs claim against

Judge Milano, the complaint must be dismissed without prejudice. See supra at 8.

However, because Judge Milano is immune from suit, anendment would be futile, and

21

the undersigned recommends dismissing the complaint against him without prejudice

but without leave to amend. See, e.g., Brady v. Ostrager, 834 F. App’x 616, 619 (2d

Cir. 2020) (summary order) (“Given Justice Ostrager’s judicial immunity, the district

court correctly held that amendment would be futile.”).

5. “Unknown State Actors”

o In addition to plaintiff's claims against the “Unknown State Actors” being barred

by the statute of limitations, plaintiff has failed to sufficiently state a claim for relief. See

supra at 9-14. Plaintiff states that the “Unknown State Actors” “violated [his] civil rights

under the Fourteenth Amendment” and “committed the act of civil fraud[.]” Compl. at 3.

Plaintiff states that they “falsified records and/or documents pertaining to [p]laintiff's

New York [S]tate driving record for the purpose of inducing the court to dismiss the

petition for relief.” Id. at 3-4. Plaintiff also asserts that they “deprived him of his vested

property” “and acted with intent to harm” him. Id. at 5.

To the extent plaintiff asserts that the “Unknown State Actors” deprived him of his

property, “any constitutional procedural due process claim arising from an alleged

deprivation of personal property is not cognizable under § 1983 because New York law

provides an adequate post-deprivation remedy.” Pittman v. Billings, 20-CV-0422

(GLS/ATB), 2020 WL 2079440, at *3 (N.D.N.Y. Apr. 30, 2020) (collecting cases); see

Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 882 (2d

Cir. 1996) (“[T]here is no constitutional violation (and no available Section 1983 action)

when there is an adequate state postdeprivation procedure to remedy a random,

arbitrary deprivation of property or liberty.”). The Second Circuit has held that “an

Article 78 proceeding constitutes an adequate postdeprivation procedure under the Due

22

Process Clause[.]” Hellenic, 101 F.3d at 881. “Article 78 proceedings provide an

adequate remedy for those who seek to challenge any action or inaction by an

administrative agency or officers of state or local government.” Chaney v. City of

Albany, No. 6:16-CV-1185 (NAM/TWD), 2019 WL 3857995, at *13 (N.D.N.Y. Aug. 16,

2019) (citing Hourihan v. Lafferty, 58 F. Supp. 2d 10, 14-15 (N.D.N.Y. 1999)).

o Plaintiff pursued an Article 78 proceeding about the deprivation of his driver’s

license and does not claim that the remedy was inadequate. See Compl. at 3-4.

Rather, plaintiff received some of the relief sought—removal of the hold on his license—

through the Article 78 proceeding. See id. at 3; see W.D. v. Rockland Cnty., 521 F.

Supp. 3d 358, 390 (S.D.N.Y. 2021) (dismissing a procedural due process claim where

“an Article 78 proceeding was available, as [the plaintiffs pursued this very remedy and

| Obtained the relief they sought ....”). Additionally, to the extent plaintiff asserts that the

“Unknown State Actors” and Attorney Crossway violated plaintiff's rights during the

Article 78 proceeding, he could have instituted a second Article 78 proceeding. See

Stubbs v. de Simone, No. 04-CV-5755 (RJH/GWG), 2005 WL 2429913, at *10, *15

(S.D.N.Y. Sept. 30, 2005) (stating that “[a]n adequate postdeprivation remedy existed

because [the plaintiff] was free to institute a new Article 78 proceeding to challenge the

alleged[ly]’ conduct that occurred through the dismissal and appeal of his first Article 78

proceeding). As there is an adequate postdeprivation state remedy to address plaintiff’

claims, plaintiff has failed to state a cognizable claim for a procedural due process

violation.

Next, “[t]he Due Process Clause of the Fourteenth Amendment has a substantive

component that bars certain government actions regardless of the fairness of the

23

procedures used to implement them.” Johnson v. Rodeway Inn Syracuse, No. 5:22-CV-

0396 (GLS/ML), 2022 WL 2308102, at *7 (N.D.N.Y. June 1, 2022) (quoting Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 840 (1998)) (quotation marks omitted), report and

recommendation adopted, 2022 WL 2292045 (N.D.N.Y. June 24, 2022), appeal

dismissed (Sept. 22, 2022). “It is well-settled that when an alleged right is not

fundamental, the protections of substantive due process do not apply.” Marino v. City

Univ. of New York, 18 F. Supp. 3d 320, 339 (E.D.N.Y. 2014) (citing Tessler v. Paterson,

451 F. App’x 30, 32-33 (2d Cir. 2011) (summary order)). Further, to plead a substantive

due process claim, “the defendant’s conduct must also be found to be ‘so egregious, so

outrageous, that it may fairly be said to shock the contemporary conscience.” Johnson,

2022 WL 2308102, at *7 (quoting Lewis, 523 U.S. at 848 n.8). “[C]onduct intended to

| injure in some way unjustifiable by any government interest is the sort of official action

most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849.

“The Constitution protects a fundamental right to travel within the United States,”

Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 99 (2d Cir. 2009), but “travelers do not

have a constitutional right to the most convenient form of travel, and minor restrictions

on that travel simply do not amount to the denial of a fundamental right[.]” Town of

| Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (alterations, citations,

and quotation marks omitted). “To the contrary, the Supreme Court has repeatedly

affirmed that the states have a paramount interest in highway safety and may summaril

suspend or revoke a driver's license with due process.” Annan v. State of New York

Dep’t of Motor Vehicles, No. 15-CV-1058 (CBA/CLP), 2016 WL 8189269, at *5

(E.D.N.Y. Mar. 2, 2016) (citing Mackey v. Montrym, 443 U.S. 1, 19 (1979) (holding that

24

Massachusetts statute allowing for summary suspension of a driver’s license with

availability of prompt postsuspension hearing was constitutional); Dixon v. Love, 431

U.S. 105, 115 (1977) (holding that Illinois statute providing for summary suspension of a

driver’s license with availability of a postdeprivation hearing was constitutional)), aff'd,

662 F. App’x 85 (2d Cir. 2016) (summary order). “[T]he right to maintain a driver’s

| license is substantial and entitled to due process protection, but has not been

recognized as the type ‘implicit in the concept of ordered liberty, or deeply rooted in this

Nation’s history and tradition.”” Yandow v. Kronau, No. 1:09-CV-903 (GLS/DRH), 2011

WL 282449, at *5 (N.D.N.Y. Jan. 24, 2011) (quoting Immediato v. Rye Neck Sch. Dist.,

73 F.3d 454, 460-61 (2d Cir. 1996)).

Plaintiff's contention that he was deprived of his driver's license through its

SUSpension, therefore, does not establish a fundamental right. Further, the allegations

do not constitute conduct that “shocks the conscience.” See generally Compl.; see also

Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011) (citation

omitted) (“It is not enough that the government act be ‘incorrect or ill-advised’; it must be

conscience-shocking.”). As such, plaintiff has failed to state a plausible substantive due

process claim and it is recommended that plaintiff's claim against the “Unknown State

Actors” be dismissed. See Bey v. D.C., No. 17-CV-6203 (MKB), 2018 WL 5777021, at

*6 (E.D.N.Y. Nov. 1, 2018) (dismissing the plaintiff's “right to travel claim[]’ because

“[t]he seizure of [the p]laintiff’s vehicle alone is insufficient to state a claim for violation of

his constitutional right to travel. [The p]laintiff retained his ability and constitutional right

to travel even if inconvenienced by the seizure of his motor vehicle.”). Mindful of

plaintiff's pro se status, the undersigned nevertheless recommends dismissing plaintiff’s

25

complaint against the “Unknown State Actors” with prejudice and without leave to

amend as plaintiff cannot state a procedural due process claim where there is an

adequate state remedy to address his claims and he cannot state a substantive due

process claim where there is no fundamental right to a driver’s license.° See

Maclnerney v. Allen, No. 52:1-CV-0818 (LEK/ML), 2022 WL 561649, at *5 (N.D.N.Y.

Feb. 24, 2022) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)), report

and recommendation adopted, 2022 WL 1025841 (N.D.N.Y. Apr. 6, 2022) (“An

opportunity to amend is not required, however, where ‘the problem with [the plaintiff's]

causes of action is substantive’ such that ‘better pleading will not cure it.””); see also

Annan, 662 F. App’x at 86 (affirming the district court’s dismissal of the complaint—

which included the plaintiff's right to travel claim—‘“without leave to amend, because, . .

allegations failed to state a claim, and an amendment would have been futile.”).

6. Supplemental Jurisdiction

As to plaintiffs claims against Attorney Crossway and the “Unknown State

Actors” for “civil fraud”, the Court may exercise supplemental jurisdiction over state law

claims when “a plaintiff's federal and state claims present ‘but one constitutional case’

and ‘derive from a common nucleus of operative fact.” Shepherd v. Nandalawaya, No.

6:19-CV-06406 (EAW), 2020 WL 1963126, at *4 (W.D.N.Y. Apr. 21, 2020) (quoting

United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). “When a federal court

5 It is also likely that the claims against the “Unknown State Actors” are subject to dismissal on immunity

grounds. Plaintiff has not identified the “Unknown State Actors”; therefore, the undersigned cannot

perform a more specific analysis. Compl. at 3-4. However, Eleventh Amendment immunity extends to

state actors. See Gollomp, 568 F.at 366 (“The immunity recognized by the Eleventh Amendment extends

beyond the states themselves to state agents .. . that are, effectively, arms of a state.”); Mullinv. P&R

Educ. Servs., Inc., 942 F. Supp. 110, 114 (E.D.N.Y. 1996) (“Because the doctrine of sovereign immunity

extends to state officials sued in their official capacity, the complaint is dismissed to the extent that it

alleges a § 1983 violation by [the] Commissioner” of the DMV).

26

dismisses federal claims, the court may decline to exercise supplemental jurisdiction

over the state law claims pursuant to 28 U.S.C. § 1367(c)(3)[.]” Id. (citing Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A district court's decision

whether to exercise that jurisdiction after dismissing every claim over which it had

original jurisdiction is purely discretionary.”)). “Once all federal claims have been

| dismissed, the balance of factors will ‘usuall[ly]’ point toward a declination.” Lundy v.

Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 1118 (2d Cir. 2013). Plaintiff's

purported state law claims arise from the same set of facts as his § 1983 claims

concerning the documents and statements related to his Article 78 proceeding. See

generally Compl. As the undersigned is recommending dismissal of plaintiff's purported

federal claims, it is recommended that the Court decline to exercise supplemental

jurisdiction over plaintiff's “civil fraud” state law claims. Compl. at 5.

lll. Conclusion

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

6 In the alternative, the fraud claims could be dismissed because there is a heightened pleading standard

for fraud claims that plaintiff's complaint fails to meet. Under Rule 9(b), “[iJn alleging fraud or mistake, a

party must state with particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person's mind may be alleged generally.” FED. R. Civ. P. 9(b).

“[T]he complaint must ‘(1) detail the statements (or omissions) that the plaintiff contends are fraudulent,

(2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4)

| explain why the statements (or omissions) are fraudulent.” Maclnerney, 2022 WL 561649, at *5 (quoting

Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir. 2004)).

Additionally, “although mental states may be pleaded ‘generally,’ a plaintiff must nonetheless allege facts

‘that give rise to a strong inference of fraudulent intent.’” Id. (quoting Lerner v. Fleet Bank, N.A., 459 F.3d

273, 290-91 (2d Cir. 2006)). Plaintiff asserts that Attorney Crossway and the “Unknown State Actors”

provided fraudulent documents and statements during the Article 78 proceeding. Compl. at 3-4. Plaintiff

does not explain what was stated in the documents or what statements were made during the proceeding

that were allegedly false. See id. at 3-4. The only specific statements plaintiff provides are Attorney

Crossway’s affirmations that “she had not only had personal knowledge of the case as a thirteen-year

staff attorney for the NYS DMV Driver Improvement Unit, but had also consulted with unnamed authoritie

in the NYS DMV and had reviewed the records provided by them.” Id. at 4. Plaintiff does not explain

which statement was allegedly false. See id. Plaintiff has also failed to allege facts “that give rise toa

strong inference of fraudulent intent.” Lerner, 459 F.3d at 290-91. As such, were the Court to exercise

subject matter jurisdiction over the fraud claims, they would likely need to be dismissed for failure to state

claim. See Maclnerney, 2022 WL 561649, at *4-5.

27

ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is

GRANTED for purposes of filing only; and it is further

RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) against Dinah M.

Crossway and the “Unknown State Actors” be DIMISSED WITH PREJUDICE and

WITHOUT LEAVE TO AMEND; and it is further

° RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) against Frank P. Milano

be DIMISSED WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND; and it is

ORDERED, that the Clerk of the Court serve a copy of this Report-

Recommendation and Order in accordance with Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within

m| which to file written objections to the foregoing report. Such objections shall be filed

with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN

FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892

F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).”

Dated: November 3, 2022

Albany, New York

Uriel 0 erm)

Christian F. Hummel

U.S. Magistrate Judge

7 If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three

(3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17)

days from the date the Report-Recommendation & Order was mailed to you to serve and file objections.

FED R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,

then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal

holiday. Id. § 6(a)(1)(c).

28