Cox v. New York State

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

HENRY COX,

Plaintiff, 1:23-CV-0060

V. (MAD/CFH)

NEW YORK STATE; UNITED STATES

OF AMERICA,

Defendants.

APPEARANCES:

Henry Cox

08-B-1418

Upstate Correctional Facility

Box 2001

Malone, New York 12953

Plaintiff pro se

REPORT-RECOMMENDATION & ORDER

Plaintiff pro se Henry Cox purported to commence this action on January 17,

2023, with the filing of a complaint. See Dkt. No. 1. As plaintiff failed to pay this Court’s

filing fee or submit a complete application for leave to proceed in forma pauperis (“IFP”),

| the Court issued an order directing administrative closure with opportunity to comply

with the filing fee requirement. See Dkt. No. 5. On February 1, 2023, plaintiff submitted

a motion to proceed in forma pauperis. See Dkt. Nos. 6, 7. That day, the Clerk was

directed to reopen this action and restore it to the Court’s active docket. See Dkt. No. 8.

Presently before the Court is review of plaintiff's IFP application. See Dkt. Nos. 6, 7.

|. IFP Application

After review of plaintiffs renewed IFP application, the Court concludes that he

financially qualifies to proceed without prepayment of this Court’s filing fee.’ Plaintiff is

advised that IFP status does not include other fees or costs that may be associated with

this litigation, including, but not limited to, copying fees, transcription fees, and witness

fees. As plaintiff has been granted IFP status, the Court proceeds to review of his

complaint pursuant to 28 U.S.C. § 1915(e).

ll. Legal Standards

Section 1915(e) of Title 28 of the United States Code directs that, when a plainti

seeks to proceed IFP, “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

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). Likewise, under 28 U.S.C. §

1915A, a court must review any "complaint in a civil action in which a prisoner seeks

redress from a governmental entity or officer or employee of a governmental entity" and

must "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; see Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.

1999) (per curiam) (explaining that section 1915A applies to all actions brought by

prisoners against government officials ); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.

Plaintiff is reminded that he will be required to pay this Court's $350 filing fee for incarcerated plaintiffs

through installment payments through his inmate account. Plaintiff is required to pay this filing fee

regardless of the outcome of this action. See 28 U.S.C. § 1915(b); Goins v. DeCaro, 241 F.3d 260, 262

(2d Cir. 2001).

2007) (stating that both sections 1915 and 1915A are available to evaluate pro se

prisoner complaints).

It is a court's responsibility to determine that a plaintiff may properly maintain his

complaint before permitting him to proceed with his action. Where the plaintiff is

proceeding pro se, the court must consider the claims “liberally” and “interpret them ‘to

| raise the strongest arguments that they suggest.” Cold Stone Creamery, Inc. v.

Gorman, 361 F. App’x 282, 286 (2d Cir. 2010) (summary order) (quoting Brownell v.

Krom, 446 F.3d 305, 310 (2d Cir. 2006)). It is well-established that “[p]ro se

submissions are reviewed with special solicitude, and ‘must be construed liberally and

interpreted to raise the strongest arguments that they suggest.”” Matheson v. Deutsche

Bank Nat'l Tr. Co., 706 F.Appx. 24, 26 (2d Cir. 2017) (summary order) (quoting

m| Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam);

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

proceeds pro se, a court is “obliged to construe his pleadings liberally.”) (quoting

McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). However, this approach

“does not exempt a [pro se litigant] from compliance with relevant rules of procedural

and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). “[T]he tenet that

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.” Hernandez

v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). The Court may not “invent factual

allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d

Cir. 2010).

“The [Second Circuit]'s ‘special solicitude’ for pro se pleadings, Ruotolo v. IRS,

28 F.3d 6, 8 (2d Cir. 1994), has its limits, because pro se pleadings still must comply

with Rule 8(a) of the Federal Rules of Civil Procedure.” Kastner v. Tri State Eye, No.

19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019).2 Pleading

guidelines are set forth in the Federal Rules of Civil Procedure. Specifically, Rule 8

° provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a

short and plain statement of the claim showing that the pleader is entitled to relief." See

FeD. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being

asserted so as to permit the adverse party the opportunity to file a responsive answer,

prepare an adequate defense and determine whether the doctrine of res judicata is

applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation

m}| Marks and citations omitted). Rule 8 also requires the pleading to include:

(1) a short and plain statement of the grounds for the court’s jurisdiction

(2) a short and plain statement of the claim showing that the pleader is

entitled to relief; and

(3) a demand for the relief sought... .

FeD. R. Civ. P. 8(a). Although “[n]o 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).

Further, Rule 10 of the Federal Rules provides:

[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.

2 Copies of all unpublished cases cited within this Report-Recommendation & Order have been provided

to plaintiff pro se.

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

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

F.R.D. at 54 (internal quotation marks and citations omitted).

“In reviewing a complaint . . . 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) (citation omitted). However, “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 622, 678 (2009). A court should not dismiss a complaint if

the plaintiff has stated “enough facts to state a claim to relief that is 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.” Iqbal, 556

U.S. at 678 (citation omitted).

Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading

that only “tenders naked assertions devoid of further factual enhancement” does not

suffice.” Id. (internal quotation marks and alterations omitted). Allegations that “are so

vague as to fail to give the defendants adequate notice of the claims against them” are

subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (summary

order). Indeed, a complaint that fails to comply with these pleading requirements

“presents far too a heavy burden in terms of defendants’ duty to shape a comprehensiv

defense and provides no meaningful basis for the Court to assess the sufficiency of

their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second

Circuit has held, “[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) (citations omitted).

However, “[d]ismissal . . . is usually reserved for those cases in which the complaint is

so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if

o any, is well disguised.” Id. (citations omitted).

Ill. Complaint

Plaintiff seeks to sue the State of New York, “in full capacity,” and the United

States of America, “Federal Agencies.” Dkt. No. 1 (“Compl.”). Plaintiff states, generally,

that his case is based upon the “mass incarceration” of minorities in the United States.

See id. He says the “(PRS) sentencing, the sentencing, and the treatment thereof

between white and Black people are Boas and racist denying due process rights of

Blacks and subjects them to cruel and unusual punishment revolving around the 8"

amendment.” Id. Plaintiff states that “African-Americans (Black people) are

incarcerated 5x more than [sic] their white counterpart [sic].” Id. at 3. Plaintiff avers tha

there are “a number of problem’s [sic] centered around the above problems that lead to

Constitutional violations and should be reviewed and dealt with (addressed).” Id.

Plaintiff states that the “[rJeasons for the overflow of drugs and guns in the inner city is

on the shoulders of our government (contra- Vietnam war).” Id. Plaintiff contends that

these “drugs and guns was [sic] used to take money out [sic] the inner-city and use it to

support the war” which “caused destruction and actions of violence and dug use that

lead [sic] to incarceration.” Id. Plaintiff contends that this “target of the inner city reflect

[sic] the number of Black people targeted and locked up or killed by these actions of

government officials.” Id.

Plaintiff further blames unspecified “Government Officials” for “money being cut

from inner-city schools all over the United States and here in New York State” every

year. See Compl. at 4. Plaintiff asserts that there “was a Bill introduced by the above

mentioned [“David Weprin in Assembly”] in the beginning so they know that the problem

existed yet they keep the sentencing and don’t change nothing [sic] about it and know

its disappropreating [sic] black people, and at the same time destroying the inner city.”

Id. Plaintiff contends that “[t]his is unconstitutional as Government Officials have a [sic]

obligation to/with absolute duties to uphold justice and serve and protect the people fair

and equal in the eyes of the law; the □□□ Amendment (due process) protects that; the

5" amendment (due process) protects that, the amendment (due process & crule

[sic] and unusual punishement [sic] protects that.” Id. Plaintiff proposes, the “13

amendment shall be revisited.” Id. at 4.

Plaintiff states that “[b]ecause of the above | been [sic] lost in the system since

11 years old and subjected to drug abuse and disappropreation [sic] of a Black

household and in these same institutions for children all the way to an adult | been in

| these institutions from 11 to 34 years old for 19 % years, 18 1/12 years. It’s almost like

you cant [sic] get out once your [sic] in the grips of this system.” Compl. at 5. Plaintiff

states, “[w]hen is the United State [sic] government agencies and the States (New York

State) gona [sic] take responsibility and clean up there [sic] mess and fix the enviorment

[sic] they help destroy and continue to destroy to this day.” Id. Plaintiff states he “lived

through deaths and gun violence and drugs that you are responsible for.” Id.

Plaintiff argues the “FRCAs [sovereign immunity] waiver applies only to the

federal government and not to agencies within the Federal Government.” Compl. at 5.

He further states that sovereign immunity “shouldn't exist when there is a clear violation

of the Constitution for then what would be the reason for ‘Law’ or the ‘Unite [sic] States

of America. This [illegible] gives way to abuse of power by government agencies.”

o Compl. at 5. Plaintiff provides, “[ylour courts state: failure to state a claim upon which

relief can be granted; All claims herein are stated with enough facts and address to

what relief can be granted so as to there is no way this motion should be denied.” Id. at

6.

Among those responsible for plaintiff's above complaints are “government

agencies (FBI, CIA- Counterintel Program and ‘War on Drugs with Contra & Vietnam

m| War), the Judges sentencing Blacks and Whites, the Aid or lack thereof of the Gov.

Budget toward Black; (People of Color) and Schooling and DOCCS.” Compl. at 6. “The

addressing [sic] officers and targeting Blacks not only with skin color in mind but with

aggression and violence, and then the Immunity Clauses in these government agencies

playing a high role in accountability or lack there of [sic].” Id. Plaintiff states, “[a]ll of

which is in the body of this argument and needs to be addressed by these courts and |

seek relief under this act after being subjected to all of the above for 34 years for having

my constitutional rights state and federal violated (5° amendment due process, 14"

amendment due process, 8'" amendment due process and cruel and unusual

punishment, and the unconstitutional adoption of the 13 amendment, and by your

dinial [sic] of the courts as it pertains to these issues silencing the voice of reason and

change violating my amendment.” Id.

Plaintiff also challenges the constitutionality of post-release supervision,

apparently as it relates to the length of post-release supervision sentences for those

who have been convicted of rape when compared to other crimes. See Compl. at 8.

He states that post-release supervision “not only has cost us money but taken us

outside our sentencing and going over the max with said supervision, this action the

| courts has already ruled on” but “what was not argued is the bias and discrimination

within the post release supervision guidelines” specific to “a program set for rapist [sic]

and people in jail for rape to supervise them for long period after their sentence.” Id.

Plaintiff states that the “bias is that the other crimes that fall under this post-release

supervision act that don’t have a thought process around it. It’s just throw away the key

and if they find it then post release supervision.” Id. at 8. Plaintiff then appears to

contend that people who have been convicted of rape are given greater opportunities

for release when compared with people who have been convicted of different crimes.

See id. at 9. Plaintiff believes that “something is wrong with that picture and it begins

with sentencing and prison reform.” Id. Plaintiff appears to suggest that the difficulties,

bias, and discrimination that people of color face should be a consideration for

sentencing and post-release supervision. See id.

Plaintiff states, “[t]lo give someone a max time allowed under the sentencing

guidelines in NYS and then PRS on top of that means 5 years past the max (if you

violate you could add more time on top of the max) with that and the above actions it

shows Constitutional violation under the 14° amendment and 8" amendment.” See

Compl. at 5. Plaintiff notes that his case “could be a potential class action lawsuit.” Id.

For plaintiff's first cause of action, he states

To stop discriminating against Black people dealing with post release

supervision sentencing with bias as apose [sic] to their white counter part

[sic]. This is a violation to the Constitutional rights of Black people doing

time in prison or who committe [sic] a crime. They are not being treated

fair and/or equal.

Compl. at 13. For his second cause of action, plaintiff lists

the fair use of post-release supervision, dealing with rape & vilent [sic]

crimes. (PRS) was used for rapist not vilent [sic] crimes and is aplied [sic]

diffrent [sic] favouring [sic] rape. Rape is a mental illness, the vilent [sic]

crimes being committed is environmental making it a [sic] easyer [sic] fix[.]

The sentencing should reflect that. [I]t violates Due Process.

Id.

For his third cause of action, plaintiff states

[T]he due process of aplying [sic] (PRS) to determind [sic] sentencing as

vilent [sic] crimes. There is a max time allowed under the sentencing

guidelines and (PRS) can take you pass [sic] that max time (up to 5 years

pass [sic] that max time). That person [sic] due process is violated when

the time go pass [sic] the max with the (PRS) comes from Rape cases

where PRS is ran with the sentencing just so it dont [sic] violate the

sentencing guidelines.

Compl. at 13. For his fourth cause of action, plaintiff states

Revisiting the 13° amendment provisions that opened the door for Jim

Crow ie mass incarceration of black people (people of color) making it

unconstitutional why the build white cities off the bodies of people of color

after being responsible for why they being locked up. This is targeting.

So | ask targeting be stopped [sic] as well.

Id. at 14. Lastly, plaintiff's fifth cause of action states

Mass incarcerating in the State of New York and the United States of

America (federal agencies) violation of the rights and targeting Blacks

(people of color (Latino) other)) violation of the Constitution to not being

subjected to disappropreation [sic] and disregaurd [sic] of Black rights and

life be stopped and people caught up in that violent Drug wave caused by

the Government and sentenced be compensate [sic] suffered. myself

included[.]

Id. Plaintiff seeks $500 million in compensatory damages and $500 million in punitive

damages. See Compl. at 14.

10

IV. Analysis

To the extent it can be determined, plaintiff appears to claim that his arrest,

prosecution, incarceration, and sentence — and the arrests, prosecutions,

incarcerations, and sentences of people of color in general — violate his First, Fifth,

Eighth, and Fourteenth Amendment rights. See Compl. at 5. Although not explicitly

stated as such, plaintiff also appears to seek to raise equal protection claims,

contending that people of color are being treated differently than similarly-situated white

people insofar as people of color are being arrested and incarcerated at either higher

rates than white people who have committed the same crimes. See generally Compl.

Next, plaintiff appears to challenge the constitutionality of post-release supervision,

generally, because post-release supervision could “extend a sentence” beyond the

maximum allowable sentence for that crime. Plaintiff also appears to argue that post-

release supervision is warranted and constitutional for those who have committed rape,

but for those who have committed other crimes, it is unconstitutional. Next, plaintiff

asks the Court to “revisit” the Thirteenth Amendment as suggests that people of color,

generally, are being “targeted” and incarcerated, apparently in violation of the Thirteenth

Amendment's prohibition against slavery or involuntary servitude. See Compl. at 4.

1

3 Plaintiff also makes similar allegations of “bias” in sentencing between people convicted of rape versus

people convicted of other crimes. See Compl. at 8. However, plaintiff has failed to show that those who

have been convicted of rapes and sentenced to periods of post-release supervision “similarly-situated” to

persons who have been convicted of other (unspecified) crimes who have been sentenced to longer

periods of post-release supervision or that there is no “rational basis” for the differential treatment. “The

Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated

alike.” Bill & Ted's Riviera, Inc. v. Cuomo, 494 F. Supp. 3d 238, 245 (N.D.N.Y. 2020) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation omitted)). As plaintiff does not, with

respect to this argument, claim that he is a member of a constitutionally-protected class, he may only

bring “’an equal protection claim pursuant to one of two theories: (1) selective enforcement, or (2) “class

of one.” Bill & Ted's Riviera, Inc., 494 F. Supp. 3d at 246 (quoting AYDM Assoc., LLC v. Town of

Pamelia, 205 F. Supp.3d 252, 265 (N.D.N.Y. 2016)).

11

As a threshold issue, to the extent plaintiff purports to claim that he brings this case

on behalf of himself or others similarly situated or will seek certification of this case as a

class action in the future, see compl. at 5, is well-settled law that a class action cannot

be maintained by a pro se litigant because a non-attorney cannot represent someone

other than themselves. See, e.g., Miller v. Zerillo, No. 07-CV-1719, 2007 WL 4898361,

lat *1 (E.D.N.Y. Nov. 2, 2007) (citing cases and recommending denial of class

certification without prejudice should an attorney appear in the case); see also

lannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); 28 U.S.C.§ 1654. Moreover, to

the extent plaintiff's comment can be interpreted as a request for class certification, in

addition to failing because plaintiff cannot proceed on a class action pro se, such a

request is also denied because it was not made through a proper motion and does not

m| Satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure.

Thus, to the extent plaintiffs complaint seeks to allege that any wrongs were imposed

on any persons other than himself, because he cannot proceed as a class action at this

time, such claims will be interpreted only insofar as they impact plaintiff, individually.

Accordingly, to the extent plaintiff's complaint can be read as seeking class certification,

it is recommended that the request be denied.

On the merits, there are several bars to plaintiff's complaint, many of them fatal.

First, because plaintiff seeks to sue the United States and/or its agencies, these claims

are barred by sovereign immunity. Although plaintiff argues that federal agencies are

not protected from suit by sovereign immunity, citing the Federal Torts Claims Act

(“FCTA’), plaintiff misunderstands the law. See Compl. at 5.

12

“To begin with, the doctrine of sovereign immunity bars federal courts from hearing

all suits against the federal government, including suits against federal agencies, unless

sovereign immunity has been waived.” Rochelle Marettta-Brooks, et al. Plaintiff, v.

Comm’r of Soc. Sec., et. al. Defendants, No. 5:22-CV-1261 (BKS/ML), 2023 WL

2655195, at *5 (N.D.N.Y. Mar. 27, 2023) (emphasis added) (citing United States v.

° Mitchell, 445 U.S. 535, 538 (1980); Robinson v. Overseas Military Sales Corp., 21 F.3d

502, 510 (2d Cir. 1994) (“Because an action against a federal agency . . . is essentially

a suit against the United States, such suits are . . . barred under the doctrine of

sovereign immunity, unless such immunity is waived.”); see also F.D.I.C. v. Meyer, 510

U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988) (holding that

sovereign immunity “shields the [United States] and its agencies from suit[.]”). In

addition, plaintiff carries the burden of demonstrating that sovereign immunity has been

waived. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

Plaintiff does not mention Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

388 (1971),* but to the extent he names the United States as a defendant and appears

to also seek to name the FBI and CIA, Compl. at 6, he would only be able to proceed

under Bivens if he were to name specific federal officers. See Sereika v. Patel, 411 F.

m| Supp. 2d 397, 402 (S.D.N.Y. 2006) (citing Robinson v. Overseas Military Sales Corp..,

21 F.3d 502, 510 (2d Cir. 1994) (noting that the United States cannot be sued under

Bivens because a claim against a federal agency “is essentially a suit against the Unite

States, and Bivens actions against the United States are barred under the doctrine of

4 In Bivens, the Supreme Court of the United States “recognized for the first time an implied private action

for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctiona

Services Corp. v. Malesko, 534 U.S. 61, 66 (2001).

13

sovereign immunity.”). “[T]o state a Bivens claim, a plaintiff must allege that he has

been deprived of a constitutional right by a federal agent acting under color of federal

authority and must allege that the individual defendant was personally involved in the

constitutional violation.” O'Donoghue v. United States Soc. Sec. Admin., 828 F. App'x

784, 787 (2d Cir. 2020) (summary order). Claims can only be brought against federal

o agents in their individual capacities for actions taken while the employee was acting

under the color of federal law and may only seek monetary damages. See, e.g., Rivera

v. Fed. Bureau of Investigation, No. 5:16-CV-00997 (NAM/TWD), 2016 WL 6081435, at

*4 (N.D.N.Y. Sept. 13, 2016), report and recommendation adopted, No. 5:16-CV-00997

(NAM/TWD), 2016 WL 6072392 (N.D.N.Y. Oct. 17, 2016) (“The only remedy available

in a Bivens action is an award of monetary damages from defendants in their individual

m| Capacities.’ . . . . Since a court may award only money damages on a Bivens claim,

claims for injunctive relief are unavailable.”) (quoting Higazy v. Templeton, 505 F.3d

161, 169 (2d Cir. 2007) and citing Kurzberg v. Ashcroft, 619 F.3d 176, 179 n.2 (2d Cir.

2010)). Further, “[a] plaintiff in a Bivens action must allege facts indicating that the

defendant was personally involved in the claimed constitutional violation.” Vazquez v.

Astrue, No. 5:18-CV-1492 (DNH/ATB), 2019 WL 4686440, at *5 (N.D.N.Y. Sept. 26,

| 2019), report and recommendation adopted, No. 5:18-CV-1492 (DNH/ATB), 2019 WL

6914775 (N.D.N.Y. Dec. 19, 2019) (citing Alharbi v. Miller, 368 F. Supp. 3d 527, 564

(E.D.N.Y. 2019) and Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009)). Further, a

plaintiff must show that “there is no alternative way in which the plaintiff can seek relief

for the violation of the plaintiff's constitutional right.” Moore v. U.S. Postal Service, No.

01-CV-1609, 2005 WL 165386, at *11 (N.D.N.Y. Jan. 13, 2005).

14

To the extent plaintiff seeks to sue the United States or federal agencies for for

violations of his constitutional rights, regardless of the form of relief requested, plaintiff

cannot proceed under Bivens. See, e.g., Perez v. Hawk, 302 F. Supp. 2d 9, 18

(E.D.N.Y. 2004) (“[T]he United States is immune from constitutional tort claims against

the United States, its agencies, or federal employees sued in their official capacities.”);

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

Further, even if plaintiff had properly named individual federal officers as defendants

— which he has not — very few constitutional claims can proceed under Bivens. The

Supreme Court has held that Bivens allows claims with respect to two® additional and

specific constitutional claims: pursuant to the Fifth Amendment relating to sex

discrimination in employment and the Eighth Amendment Cruel and Unusual

Punishments Clause for failure to provide adequate medical treatment to a federal

prisoner. See Wiley v. Fernandez, 9:10-CV-652 (GTS/CFH), 2021 WL 6550821, at *4

(citing Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980)).

Indeed, in Ziglar v. Abbasi, 582 U.S. 120, 137 S.Ct. 1843, 1857 (2017), the Supreme

Court of the United States “urged lower courts to exercise restraint in creating implied

causes of action against federal officials to enforce constitutional rights in new contexts,

went so far as to clarify that “expanding the Bivens remedy is now a ‘disfavored’

judicial activity.” Wilson v. Bolt, 9:18-CV-416 (DNH/TWD), 2019 WL 5197335, at *5

(N.D.N.Y. May 28, 2019) (quoting Ziglar, 137 S.Ct. at 1857) (additional citation omitted).

5 Bivens itself recognized that “a person claiming to be the victim of an unlawful arrest and search could

bring a Fourth Amendment claim for damages against the responsible agents even though no federal

statute authorized such a claim.” Hernandez v. Mesa, 206 L. Ed. 2d 29, 140 S. Ct. 735, 741 (2020)

15

To the extent plaintiff cites the First Amendment and may be seeking to bring a clai

for monetary damages pursuant to Bivens, even if plaintiff had properly named a federal

agent in his or her individual capacity,® such a claim must be dismissed with prejudice

as the Supreme Court of the United States recently confirmed, “there is no Biven’s

action for First Amendment retaliation.” Egbert v. Boule, 213 L. Ed. 2d 54, 142 S. Ct.

4793, 1807 (2022).

Next, although plaintiff cites the Fifth and Eighth Amendments in passing, he fails to

set forth any specifics explaining how any federal agents violated his Fifth or Eighth

Amendment rights. See Compl. at 6. Thus, even while Bivens has been extended in

limited contexts to claims for Fifth or Eighth Amendment violations — sex discrimination

in employment and medical indifference with respect to a federal prisoner — plaintiff

does not set forth any allegations that fit within these narrow expansions of Bivens and

the allegations within his case — concerning racial bias relating to his arrest,

prosecution, incarceration, and sentencing — are wholly unrelated to these narrow

constitutional claims found by the Supreme Court to be allowed under Bivens.’ In

sum, to the extent plaintiff seeks to bring claims for monetary damages or for injunctive

relief for violations of his First, Fifth, or Eighth Amendment rights against United States,

| any federal agencies, or any federal employees under Bivens, it is recommended that

such claims be dismissed with prejudice. In addition to dismissal on the merits, the

6 As with his other claims, plaintiff's First Amendment claim also would fail under Bivens because plaintif

cannot proceed against the United States or its agencies, but has not identified the specific federal agent

that plaintiff alleges to have been personally involved in violating his First Amendment rights.

Additionally, despite conclusorily claiming that his First Amendment rights were violated, plaintiff sets forth

no facts to support a First Amendment violation.

Further, plaintiff has made only generalized and vague allegations and has failed to set forth facts to

support a claim that a specific federal employee(s) deprived him of his federal or constitutional rights

while acting under the color of federal authority. See O'Donoghue, 828 F. App’x at 787.

16

Court notes that it would appear that any Bivens claims would also be barred by Heck

unless and until plaintiff could satisfy Heck’s conditions.®

Despite the United States’ general sovereign immunity from suit,

The Federal Tort Claims Act . . . provides a limited waiver of sovereign

immunity that allows the United States to be sued for certain torts as if it

had been a private party. The FTCA's “remedy against the United States”

for damages “arising from the negligent or wrongful act or omission of any

° employee of the Government while acting within the scope of his office or

employment is exclusive of any other civil action or proceeding against the

employee.” 28 U.S.C. § 2679(b)(1).

Xiang Li v. Duncan, No. 5:12-CV-1427 (LEK/DEP), 2013 WL 4483078, at *2 (N.D.N.Y.

Aug. 20, 2013) (internal citation omitted). However, the FTCA “bars suits against

federal agencies, such as the Department of Justice, which includes the USAO, and

provides an exclusive remedy against the United States.” Id. (citing 28 U.S.C. §

m| 2679(a)).

Here, although plaintiff makes a passing reference to the FTCA, his complaint is

lacking any facts that support a claim based on the FTCA. See, e.g., Lepre v. New Yor

State Ins. Fund, No. 1:13-CV-0926 (GTS/CFH), 2014 WL 4093658, at *6 (N.D.N.Y. Aug

18, 2014) (noting that the FTCA waives sovereign immunity from torts committed by

federal employees acting within the scope of their employment, including “[a]ny claim

arising out of assault, battery, false imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation, deceit, or interference with contract

rights [.]” ) (quoting 28 U.S.C. §§ 2680(h)). He does not state what claims he seeks to

bring pursuant to the FTCA. Insofar as plaintiff may be seeking to raise his

8 As the undersigned recommends dismissal on the merits with prejudice, dismissal without prejudice is

not warranted on the basis of Heck because even if plaintiff were to overcome the Heck bar in the future,

his Bivens claims would still be meritless.

17

constitutional claims pursuant to the FTCA, such claims must be dismissed because,

“although the FTCA waived the United States’ sovereign immunity as to certain claims,

it does not waive immunity for claims of constitutional violations.” Rivera v. US N. Dist.

Ct. Albany, No. 1”21-CV-995 (MAD/DJS), 2022 WL 17985924, at *1 (N.D.N.Y. Dec. 28,

2022) (affirming Report-Recommendation of the Magistrate Judge by holding that

| constitutional claims are subject to dismissal because the FTCA does not waive the

United States’ sovereign immunity as to claims asserting constitutional violations.”)

(citing F.D.I.C. v. Meyer, 510 U.S. 471 (1994)).

Furthermore, even if plaintiff had set forth claims that would properly fall under

the FTCA, he has not shown that he has exhausted his administrative remedies.

Section 2675(a) of the FTCA states that an FTCA action “shall not be

instituted” unless a claimant has “first presented the claim to the

i appropriate Federal agency” and received a final denial of that claim. See

also 28 U.S.C. § 2401(b) (stating that an FTCA claim is “forever barred”

unless presented in writing to the appropriate federal agency within two

years of accrual).

Xiang Li, 2013 WL 4483078, at *2; see also Lepre, 2014 WL 3093658, at *7 (“[A]n

FTCA claim must be filed with the court within six years of its accrual. A plaintiffs FTC

claim accrues at the time of injury.”) (citing Barrett v. United States, 689 F.2d 324, 327

(2d Cir. 1982)).

Any potential FTCA claim that calls into question his arrest, prosecution,

incarceration, or sentencing would be barred by Heck unless and until plaintiff is able to

demonstrate favorable termination. The Heck applies to bar FTCA actions that imply

the invalidity of a conviction. As plaintiff appears to base any FTCA claims on his

allegations that his arrest, prosecution, incarceration, and sentence, including his post-

18

release supervision, are based on racial bias and violate of his constitutional rights,

these challenges can only be brought through a habeas corpus petition.®

Accordingly, it is recommended that any claim plaintiff may be seeking to raise

against the United States under the FTCA be dismissed without prejudice and with

opportunity to amend should plaintiff be able to demonstrate (1) that his conviction has

| been overturned or otherwise deemed invalidated by a court of law or an FTCA claim

that does not call into question the validity of his conviction; (2) a claim against the

United States that falls within the FTCA; and (3) proper exhaustion of his administrative

remedies under the FTCA.

Next, plaintiffs claims against the State of New York for monetary damages are

barred by the state’s sovereign immunity. “As a general rule, state governments and

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

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

Congress.” Jackson v. Battaglia, 63 F. Supp. 2d 214, 219-20 (N.D.N.Y. 2014) (citation

omitted). Plaintiff appears to seek to bring his claims against the State of New York for

the alleged violations of his constitutional rights under section 1983.

The Eleventh Amendment bars claims for money damages and injunctive

or declaratory relief against a state or an arm of the state unless the state

has specifically waived, or Congress has abrogated, its sovereign

immunity. See Cory v. White, 457 U.S. 85, 90-91 (1982); Edelman v.

Jordan, 415 U.S. 651, 667-69 (1974). New York State has not waived its

sovereign immunity and Congress has not abrogated its sovereign

immunity in § 1983 actions. See Jones v. N.Y. Div. of Military & Naval

Affairs, 166 F.3d 45, 49 (2d Cir. 1999).

As plaintiff has not actually set forth any clear FTCA claim, the undersigned cannot state with certainty

that any FTCA claim plaintiff may raise would implicate Heck. Accordingly, the without prejudice

dismissal recommendation takes into account the possibility that plaintiff may intend to raise an FTCA

claim that would not call the validity of his conviction into question.

19

Ennis v. New York Dep't of Parole, No. 5:18-CV-00501 (GTS/TWD), 2018 WL 3869151,

at *4 (N.D.N.Y. June 12, 2018), report and recommendation adopted, 2018 WL

3862683 (N.D.N.Y. Aug. 14, 2018). Section 1983 claims do not abrogate the Eleventh

Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979).

Instead, plaintiff must seek to sue a state official(s) in his or her individual capacity. See

| Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988) (noting that a lawsuit against a state

official in his official capacity is a suit against the entity employing the official).

Moreover, although the Eleventh Amendment “generally does not bar claims for

prospective injunctive or declaratory relief’ against individual officers sued in their

individual capacities, plaintiff does not name any state officials as defendants in this

action.’° Quern, 440 U.S. at 338. However, even if plaintiff had named individual state

Officers in their individual capacities — which he has not — his claims for prospective

injunctive relief would still fail. As to his requested prospective injunctive relief, plaintiff

appears to allege, generally, that terms of post-release supervision violate “due

process” as post-release supervision can “extend” a sentence beyond its maximum

term of imprisonment. Compl. at 8. However, as will be discussed below, infra at 16,

his requested injunctive relief cannot be granted under section 1983 as claims regardin

| plaintiff's sentencing or post-release supervision term must instead be brought pursuant

to a habeas corpus petition. Accordingly, it is recommended that (1) any claims that

can be interpreted as being raised against the State of New York under 42 U.S.C. §

1983 for monetary damages for alleged violations of plaintiff's constitutional rights be

10 Plaintiff is advised that personal involvement of the state official in the alleged violation of

constitutional rights is a prerequisite to an award of damages under § 1983. See Wright v. Smith, 21 F.3d

496, 501 (2d Cir. 1994).

20

dismissed due to the state’s sovereign immunity under the Eleventh Amendment, and

(2) any claims for injunctive relief relating to his term of post-release supervision be

dismissed with prejudice as such relief must be sought pursuant to a habeas corpus

petition and not pursuant to section 1983.

Even if sovereign immunity were not a bar to plaintiffs claims against the United

States and/or federal agencies and the State of New York, plaintiff's claims also fail

under Heck v Humphrey, 512 U.S. 477 (1994). Plaintiff appears to allege that his

sentence, and any period of post-release supervision, may be unconstitutional because

it is a product of racial bias. This claim is not appropriately brought through a section

1983 or Bivens case because a determination in plaintiff's favor regarding the

constitutionality of plaintiff's criminal prosecution, conviction, or sentence would

m| Undermine the validity of his conviction; thus, it and is barred under Heck. See Heck,

512 U.S. at 486-87. Plaintiff cannot recover damages in a section 1983 action “for [an]

allegedly unconstitutional conviction or imprisonment, or for other harm caused by

actions whose unlawfulness would render a conviction or sentence invalid” unless he

can demonstrate that “the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make

Such a determination, or called into question by a federal court's issuance of a writ of

habeas corpus.” Id. Plaintiff has not shown that his convictions have been overturned

or otherwise resolved in his favor."

11 Although plaintiff attempts to couch his allegations in the complaint and causes of action as non-

specific and applying to people of color as a whole, it appears that this may an attempt to find a loophole

to avoid a Heck dismissal. As already stated, plaintiff cannot bring claims on behalf of others.

Accordingly, plaintiff's generalized language does not alter the fact that such a claim is barred by Heck.

21

Insofar as plaintiff may be suggesting that post-release supervision violates his

constitutional rights by extending the length of his sentence, “such a challenge can only

be brought in federal court pursuant to a 28 U.S.C. § 2254 petition for a writ of habeas

corpus, not through a § 1983 complaint.” Peoples v. Leon, No. 9:18-CV-1349

(LEK/DEP), 2019 WL 13158025, at *3 (N.D.N.Y. Feb. 19, 2019) (citing Hardy v. Fischer,

F. Supp. 2d 614, 621 (S.D.N.Y. 2010) (“[P]laintiffs must bring challenges to the

validity or duration of their PRS sentences by seeking a writ of habeas corpus.”)).

Accordingly, all claims relating to the length of plaintiff's sentence or post-release

supervision also must be dismissed as such claims can be reviewed only through a

petition from habeas corpus. See Peoples, 2019 WL 13158025, at *3.

Furthermore, to the extent plaintiff seeks to enjoin various unnamed law

m| enforcement and/or government agencies from depriving people of their constitutional

rights, plaintiff should “be cautioned that [he] would have to demonstrate that [he] has

standing to seek such an injunction.” Jackson v. Exec. Off. of United States Att'ys, No.

07CIV6591 (RJH/DCF), 2009 WL 10677067, at *8 (S.D.N.Y. Feb. 2, 2009), report and

recommendation adopted sub nom. Jackson v. Exec. Off. for United States Att'ys, No.

07 CIV. 6591, 2009 WL 10677136 (S.D.N.Y. Mar. 26, 2009), aff'd sub nom. Jackson v.

m| Cnty. of Rockland, 450 F. App’x 15 (2d Cir. 2011) (noting that to demonstrate standing

for such injunctive relief, the plaintiff would need to show that “there is a substantial

likelihood that she, personally, is likely to be injured again by any allegedly

unconstitutional law enforcement practices.”),

Similarly, to the extent plaintiff argues, generally, that people of color are being

arrested and incarcerated for drug and other crimes at a disproportionately higher rate

22

than white people, and seeks that the Court order that bias against people of color in

arrest and sentencing cease and that the “13" amendment” be “revisited” is not relief

this Court can award. Initially, plaintiff fails to state how his constitutional rights were

violated or specify the persons/entities involved in the deprivation of his constitutional

rights. Secondly, this Court does not direct legislative policy, such as sentencing

° reform; constitutional conventions; or control school funding. Such matters would

appear more appropriate for elected officials. To the extent plaintiff may be suggesting

that he is being subjected to “involuntary servitude”’? in violation of the Thirteenth

Amendment, such claim must fail because, in addition to being barred by Heck, such an

allegation is frivolous. The Thirteenth Amendment explicitly states, “Neither slavery nor

involuntary servitude, except as a punishment for a crime whereof the party shall have

m| been duly convicted, shall exist within the United States, or any place subject to their

jurisdiction.” U.S. CONST. AMEND. XIII (emphasis added). Plaintiff does not dispute that

he is incarcerated following his conviction for a crime. According to the New York State

DOCCS “Incarcerated Lookup,” plaintiff is incarcerated for Robbery in the First Degree.

See DOCCS Incarcerated Lookup, available at https://nysdoccslookup.doccs.ny.gov/

(last visited Mar. 30, 2023).

Finally, the undersigned also must determine whether the recommendation is for

dismissal with or without prejudice. When addressing a pro se complaint, a district court

generally “should not [be] dismiss[ed] without granting leave to amend at least once

when a liberal reading of the complaint gives any indication that a valid claim might be

stated.” Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation

12 To be clear, plaintiff makes no claim that he is being forced to work. Instead, it appears that he may

be suggesting that his involuntary incarceration is violative of the Thirteenth Amendment.

23

marks and citation omitted). However, the Court is not required to grant leave to amend

when amendment would be futile. See Cuoco v. Mortisugu, 222 F.3d 99, 112 (2d Cir.

2000). In this case, because “[t]he problem[s] with [plaintiff's] causes of action [are]

substantive[,] better pleading will not cure [them,]’ and any attempt to amend would,

therefore, be futile. Id.; see, e.g., Mahmood v. United States Gov't, No. 1:20-CV-207

(MAD/DJS), 2020 WL 3965125, at *2 (N.D.N.Y. Mar. 17, 2020) (“As such, his claims

against the United States should be dismissed with prejudice.”), report and

recommendation adopted sub nom. Mahmood v. United States, No. 1:20-CV-207

(MAD/DJS), 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020); Praileau_v. United States, No.

1:18-CV-1196 (MAD/DJS), 2018 WL 5811426, at *3 (N.D.N.Y. Nov. 6, 2018)

(recommending the dismissal of claims against the United States and its agencies with

| prejudice because such claims were barred by sovereign immunity), report and

recommendation adopted, No. 1:18-CV-1196 (MAD/DJS), 2019 WL 422528 (N.D.N.Y.

Feb. 4, 2019); Moore v. Samuel S. Stratten Veterans Admin. Hosp., No. 1:16-CV-0475

(LEK/CFH), 2016 WL 3659909, at *1 (N.D.N.Y. June 30, 2016) (dismissing claims

against agency of the United States with prejudice and without leave to amend).

Here, as plaintiff's potential section 1983 and Bivens claims are barred by sovereign

immunity, Heck v. Humphrey, and, to the extent it relates to the length or

constitutionality of his sentence or post-release supervision, must be brought as a

habeas corpus petition, no change to his pleading will cure these particular bars.

However, despite finding it unlikely that plaintiff can state a cognizable claim for relief

relating to the claims he set forth in this action, recognizing that plaintiff is pro se, the

24

undersigned recommends providing plaintiff with one opportunity to amend to the extent

he may able to state a cognizable claim for relief in an amended pleading.

V. Conclusion

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

ORDERED, that plaintiff's IFP application, dkt. nos. 6, 7, is GRANTED for purposes

of filing; and it is

RECOMMENDED, that plaintiff's complaint, dkt. no. 1, be DISMISSED as follows:

(1) claims for monetary relief against the State of New York for alleged violations of

his constitutional rights pursuant to 42 U.S.C. § 1983; and all claims against the United

States, the Federal Bureau of Investigation (“FBI”), and the Central Intelligence Agency

(“CIA”) pursuant to Bivens be DISMISSED WITH PREJUDICE;

(2) potential claims pursuant to the First, Fifth and Eighth Amendment claims

pursuant to Bivens against federal agents in their individual or official capacities be

DISMISSED WITH PREJUDICE;

(3) potential claims against state officers in their individual capacities for monetary or

injunctive relief or in their official capacities for prospective injunctive relief for violations

of plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983 be DISMISSED

| WITHOUT PREJUDICE;

(4) claims relating to the length or constitutionality of plaintiff's sentence or post-

release supervision be DISMISSED WITH PREJUDICE and without opportunity to

amend in this action, but without prejudice to plaintiff bringing a habeas corpus

proceeding if he is able to do so;'%

13 finoe Court makes no comment as to whether plaintiff may properly proceed with a habeas corpus

petition.

25

(5) constitutional claims against the United States pursuant to the Federal Tort

Claims Act be DISMISSED WITH PREJUDICE;

(6) potential claims against the United States under the Federal Tort Claims Act, not

arising from constitutional claims, be DISMISSED WITHOUT PREJUDICE and with

opportunity to amend as specified herein;

° (7) potential claims that allege that plaintiff's arrest, prosecution, incarceration, or

sentencing was the product of racial bias, in violation of 42 U.S.C. § 1983, as stated

against (a) the State of New York, for prospective, injunctive relief, and (b) potential

claims against individual officers in their personal capacities for monetary or injunctive

relief, which are barred by Heck v. Humphrey, be DISMISSED WITHOUT PREJUDICE

and with opportunity to amend only in the event that plaintiff can demonstrate that his

m| conviction has been overturned or otherwise resolved in his favor,

(8) plaintiff's apparent contention that unspecified defendants violated the Thirteenth

Amendment and his request that the Court “revisit” the Thirteenth Amendment, either

pursuant to section 1983 or Bivens, be DISMISSED WITH PREJUDICE;

(9) plaintiff's apparent request to proceed as a class action be DISMISSED

WITHOUT PREJUDICE”: and it is further

RECOMMENDED, that if the District Judge permits plaintiff an opportunity to

amend, plaintiff be given thirty (30) days from the filing date of the District Judge’s

Decision & Order to file an amended complaint, '* and if plaintiff fails to file an amended

complaint within that time period, the matter be closed without further order of the Court;

14 Dismissal without prejudice is recommended to account for the possibility that plaintiff could obtain

Diaintif is advised that if the District Judge, following review of this Report-Recommendation & Order,

permits plaintiff an opportunity to amend, plaintiff may proceed only on those claims that were not

26

ORDERED, that the Clerk of the Court serve this Report-Recommendation &

Order on plaintiff in accordance with Local Rules.

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

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

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

o (14) DAYS WILL PRECLUDE APPELLATE REVIEW. See 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)."6

Dated: April 4, 2023

Albany, New York

i Christian F. Hummel

U.S. Magistrate Judge

ry

dismissed by this Court with prejudice. Further, any amended complaint will supersede and replace the

original complaint it its entirety. Thus, plaintiff must replead any facts or claims he wishes to include and

may not incorporate by reference any portion of the original complaint.

16 If you are proceeding pro se and are served with this Order by mail, three additional days will be

added to the fourteen-day period, meaning that you have seventeen days from the date the Order was

mailed to you to serve and file objections. See 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. See id. § 6(a)(1)(C).

27