Helmer v. Seymour

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

FRANCIS D. HELMER,

Plaintiffs,

6:23-cv-00323

(LEK/TWD)

v.

TIMOTHY SEYMOUR, TIFFANY DOE, and

LISA BURDICK,

Defendants.

APPEARANCES: OF COUNSEL:

FRANCIS D. HELMER,

4399 Leecenter Taberg Rd.

Taberg, NY 13471

Plaintiff, pro se

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

The Clerk has sent to the Court for review a complaint brought pursuant to 42 U.S.C. §

1983, filed by Francis D. Helmer (“Plaintiff”). (Dkt. No. 1.) Plaintiff has not paid the filing fee

for the action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)

I. IFP APPLICATION

The Court may grant IFP status if a party “is unable to pay” the standard fee for

commencing an action. 28 U.S.C. § 1915(a)(1). Upon review, Plaintiff has submitted a

completed and signed IFP application, which demonstrates economic need. (Dkt. No. 2.)

Accordingly, the Court grants his application for leave to proceed IFP.1

II. INITIAL REVIEW

A. Legal Standard

When a plaintiff 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 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). Thus, even if a plaintiff satisfies the financial

criteria to commence an action IFP, it is the Court’s responsibility to determine whether the

plaintiff may properly maintain the complaint that he or she filed in this District. See id.

In reviewing a pro se litigant’s complaint, the court has a duty to liberally construe the

pleadings, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should

exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the

adverse party has been served and both parties (but particularly the plaintiff) have had an

opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in

original). Therefore, 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

1 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.

Although the Court should construe the factual allegations in the light most favorable to

the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a

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

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

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to

relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil

Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Id. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only “tenders naked

assertions devoid of further factual enhancement” will not suffice. Id. (internal quotation marks

and alterations omitted).

B. Summary of the Complaint

The complaint, dated March 13, 2023, names the following individuals as Defendants:

Timothy Seymour, Commissioner of DSS; PINS Worker Tiffany Doe; and Lisa Burdick,

Supervisor (CPS). (Dkt. No. 1 at ¶ 3.) Plaintiff alleges Lisa Burdick “was told months ago to

call [Plaintiff] to “let [him] know about his 14 year old son.” Id. at ¶ 4. However, Lisa Burdick

“refused to do her job.” Id. On March 7, 2023, Plaintiff tried to talk to Tiffany about visitation

with his son, “which is ordered by the court’s [sic]” but she “refused” to follow [the] court’s

orders. Id. Timothy Seymour, is also “refusing” Plaintiff’s “court ordered visitation[.]” Id.

“This has been going for years.” Id. The County of Herkimer is “corrupt” and “all three

Defendants are also allowing [Plaintiff’s] son to visit a child molester which is another court

order violation.” Id. Plaintiff alleges Defendants are a danger to his son and “all kids.” Id.

Plaintiff lists his first cause of action as follows: “For each Defendant to pay $4 million

each. Defendant Tiffany (PINS) Worker to pay $4 million, Lisa Burdick to pay $4 million, and

Timothy Seymour to pay $4 million.” Id. at ¶ 5. As to the second cause of action, Plaintiff

states, “For each defendant to be removed from there [sic] job and lose all pay.” Id. The third

cause of action states “And for each Defendant to be finded [sic].” Id. In his prayer for relief,

Plaintiff requests that “all three cause [sic] of action” be “granted.” Id. at ¶ 6. In the Civil Cover

Sheet, Plaintiff refers to a “violation of civil rights” and “violation of court orders and putting my

son in danger.” (Dkt. No. 1-1.)

C. Analysis

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of

action “for the deprivation of any rights, privileges, or immunities secured by the Constitution

and laws of the United States.” 42 U.S.C. § 1983. “Section 1983 itself creates no substantive

rights [but] provides . . . only a procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To state a valid claim pursuant to

§ 1983, a complaint must allege “(1) ‘that some person has deprived [the plaintiff] of a federal

right,’ and (2) ‘that the person who has deprived [the plaintiff] of that right acted under color of

state . . . law.’” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446

U.S. 635, 640 (1980)); accord Byng v. Delta Recovery Servs. LLC, 568 F. App’x 65, 65-66 (2d

Cir. 2014). Having carefully reviewed Plaintiff’s complaint, the Court recommends that it be

dismissed in its entirety.

Plaintiff has not provided “a short and plain statement of the claim showing that [he] is

entitled to relief” nor has he established this Court’s jurisdiction. See Fed. R. Civ. P. 8(a)(2);

Fed. R. Civ. P. 12(h)(3) (court may raise basis of its jurisdiction sua sponte). When subject

matter jurisdiction is lacking, dismissal is mandatory. United States v. Griffin, 303 U.S. 226, 229

(1938); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”). The complaint fails to provide specific facts

relevant to the claims, or to relate them to federal causes of action. Plaintiff’s so-called “causes

of action” fail to give Defendants “fair notice of what the claim is and the grounds upon which it

rests.” Twombly, 550 U.S. 544, 555; see also Fed. R. Civ. P. 8(a)(2). Because Plaintiff failed to

plausibly allege that one of the Defendants violated one or more of his federal rights the Court

recommends dismissing the complaint for failure to state a claim upon which relief may be

granted.2

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

be afforded the opportunity to amend at least once; however, leave to replead may be denied

where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d

Cir. 1993). “[L]ack of subject matter jurisdiction is a substantive defect that cannot be cured by

better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-cv-00423 (MAD/TWD), 2017 WL

2 Due to the nature of Plaintiff’s complaint, it is difficult to precisely determine exactly which

doctrine applies, but his claims, if any, are also likely barred. To that end, “the Rooker-Feldman

doctrine bars a district court from reviewing a family court’s determinations regarding custody,

neglect and visitation where those issues have been decided after providing the plaintiff a full

and fair opportunity to litigate those issues.” Arena v. Dep’t of Soc. Servs. of Nassau Cty., 216 F.

Supp. 2d 146, 152 (E.D.N.Y. 2002) (citing Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir.

2002)). “Under the domestic relations exception to the jurisdiction of federal courts, cases

involving divorce, alimony, and child custody remain outside federal court jurisdiction.” Amato

v. McGinty, No. 1:21-CV-0860 (GLS/TWD), 2022 WL 226798, at *10 (N.D.N.Y. Jan. 26, 2022)

(citing Marshall v. Marshall, 547 U.S. 293, 308 (2006)). In the event that Plaintiff’s underlying

custody state court proceeding remains pending, this Court’s involvement may also implicate the

Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). Under the Younger

doctrine, “federal courts [must] abstain from taking jurisdiction over federal constitutional claims

that involve or call into question ongoing state proceedings.” Diamond “D” Constr. Corp. v.

McGowan, 282 F.3d 191, 198 (2d Cir. 2002).

3172999, at *3 (N.D.N.Y. July 26, 2017). In light of Plaintiff’s pro se status, the Court

recommends that prior to outright dismissal of this action, leave to amend be granted.3

WHEREFORE, for the reasons stated herein, it is hereby

ORDERED that Plaintiff’s IFP application is (Dkt. No. 2) is GRANTED; and it is

further

RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED WITH

LEAVE TO AMEND; and it is further

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-

Recommendation, along with copies of the unpublished decisions cited herein in accordance

with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

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

objections to the foregoing report.4 Such objections shall be filed with the Clerk of the Court.

FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL

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

3 Should Plaintiff be granted leave to amend, any amended complaint must comply with Rules 8

and 10 of the Federal Rules of Civil Procedure and Local Rule 10.1. Any amended complaint

must be a complete pleading which will supersede and replace the original complaint in its

entirety. Any amended complaint submitted by Plaintiff must set forth all of the claims he

intends to assert against the defendants and must demonstrate that a case or controversy exists

between Plaintiff and the defendants which Plaintiff has a legal right to pursue and over which

this Court has jurisdiction. “[C]omplaints relying on the civil rights statutes are insufficient

unless they contain some specific allegations of fact indicating a deprivation of rights, instead of

a litany of general conclusions that shock but have no meaning.” Hunt v. Budd, 895 F. Supp. 35,

38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)).

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

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

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

and file objections. Fed. R. Civ. P. 6(d). 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. Fed. R. Civ. 6(a)(1)(C).

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

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

IT IS SO ORDERED.

Dated: May 1, 2023

Syracuse, New York Ta A □ 1.

Theérése Wiley Dancks

United States Magistrate Judge

2017 WL 3172999 Plaintiff alleges that Defendants Jacobson and Gray appeared

Only the Westlaw citation is currently available. at a conference before the NYSDHR on behalf of JBFCS.

United States District Court, N.D. New York. See Dkt. No. 1 at 5-6. Plaintiff alleges that, at the time of

this conference, Defendants Jacobson and Gray were not

Thomas J. MORAN, Plaintiff, appropriately licensed to practice law in New York State

v. through the New York State Unified Court System. See id.

PROSKAUER ROSE LLP; Jerold D. Jacobson; Plaintiff alleges that he told two of NYSDHR's employees

and Keisha Ann Grace Gray, Defendants. that “allowing two attorneys with no valid law licenses into

this conference to practice law is fraudulent.” Id. at 6.

1:17-cv-00423 (MAD/TWD)

| Moreover, Plaintiff alleges that Defendant Jacobson wrote

Signed 07/26/2017 a “fraudulent” email response to Plaintiff's NYSDHR

complaint since Defendant Jacobson's “law license [was]

Attorneys and Law Firms expired at the time the [r]esponse was sent.” Id. Plaintiff

also argues that, because of Defendant Jacobson's personal

APPEARANCES: THOMAS J. MORAN, 500 16th St., Apt.

relationship with the JBFCS, it is inappropriate for him

203, Watervliet, New York 12189, Plaintiff, pro se.

“to handle the issues of the Jewish Board.” Id. at 7.

Furthermore, Plaintiff claims that Defendant Gray “tricked

[Maria] Di Cosimo of Lexis-Nexis into providing Ms.

ORDER Gray with information that was obtained through Ms. Di

Cosimo's connection with Lexis-Nexis fraudulently.” Id.

Mae A. D'Agostino, U.S. District Judge

Plaintiff requests $240 million in total from Defendants and

*1 Plaintiff commenced this action pro se on April 17, an injunction preventing Defendant Proskauer Rose from

2017 against Proskauer Rose LLP (“Proskauer Rose”), “continuing its practice of allowing attorneys with no law

Jerold D. Jacobson (“Defendant Jacobson”), and Keisha licenses to practice law in the State of New York as well as

Ann Grace Gray (“Defendant Gray”). See Dkt. No. 1. In the United States.” Id. at 8.

an Order and Report-Recommendation dated May 1, 2017,

Magistrate Judge Dancks granted Plaintiff's application to “[I]n a pro se case, the court must view the submissions

proceed in forma pauperis for filing purposes only and by a more lenient standard than that accorded to ‘formal

denied Plaintiff's motion for appointment of counsel. See pleadings drafted by lawyers.’ ” Govan v. Campbell, 289

Dkt. No. 6 at 2, 9. In reviewing the sufficiency of the F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v.

complaint, Magistrate Judge Dancks concluded that the Court Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).

lacks subject matter jurisdiction over Plaintiff's claims, and The Second Circuit has opined that the court is obligated

therefore, despite Plaintiff's pro se status, recommended that to “make reasonable allowances to protect pro se litigants”

Plaintiff's complaint be dismissed with prejudice. See id. at from inadvertently forfeiting legal rights merely because they

9. On May 26, 2017, Plaintiff filed objections to Magistrate lack a legal education. Id. (quoting Traguth v. Zuck, 710

Judge Dancks's Order and Report-Recommendation. See Dkt. F.2d 90, 95 (2d Cir. 1983)). However, “[t]he right of self-

No. 7. representation does not exempt a party from compliance with

the relevant rules of procedural and substantive law.” Massie

According to the complaint, Proskauer Rose is a global law v. Ikon Office Solutions, Inc., 381 F. Supp. 2d 91, 94 (N.D.N.Y.

firm and Defendants Jacobson and Gray are attorneys with 2005) (quoting Clarke v. Bank of New York, 687 F. Supp. 863,

Proskauer Rose. See Dkt. No. 1 at 5. Plaintiff asserts that 871 (S.D.N.Y. 1988)).

Proskauer Rose is counsel for non-party Jewish Board of

Family and Children's Services (“JBFCS”), Plaintiff's former *2 In reviewing a report and recommendation, a district

employer. See id. at 5-6. As Magistrate Judge Dancks noted, court “may accept, reject, or modify, in whole or in part,

according to publicly available documents, Plaintiff filed a the findings or recommendations made by the magistrate

complaint with the New York State Division of Human Rights judge.” 28 U.S.C. § 636(b)(1)(C). When a party makes

specific objections to a magistrate judge's report, the district

the objections. See id.; Farid v. Bouey, 554 F. Supp. 2d regulates only the Government, not private parties, a litigant

301, 307 (N.D.N.Y. 2008). When a party fails to make claiming that his constitutional rights have been violated must

specific objections, the court reviews the magistrate judge's first establish that the challenged conduct constitutes ‘state

report for clear error. See Farid, 554 F. Supp. 2d at 307; action.’ ” Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178,

see also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 187 (2d Cir. 2005) (quoting United States v. Int'l Bhd. of

2725126, *1 (S.D.N.Y. Nov. 29, 2004). As mentioned, Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)). The conduct

Plaintiff has submitted objections to the Order and Report- of a private actor may be considered state action when the

Recommendation. See Dkt. No. 7. private actor “is a willful participant in joint activity with the

State or its agents.” Ciambriello v. Cty. of Nassau, 292 F.3d

Federal courts are courts of limited jurisdiction and may not 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress & Co.,

preside over cases absent subject matter jurisdiction. Exxon 398 U.S. 144, 152 (1970)).

Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552

(2005). Federal jurisdiction is available only when a “federal *3 Defendants Jacobson and Gray are private attorneys

question” is presented or when the plaintiff and the defendant working for a private law firm. See Dkt. No. 1 at 5. Plaintiff

are of diverse citizenship and the amount in controversy does not allege that Defendants had any affiliation with the

exceeds $75,000. 28 U.S.C. §§ 1331, 1332. When a court State of New York beyond their licensure, and therefore,

lacks subject matter jurisdiction, dismissal of the complaint they cannot be deemed “state actors” under Section 1983.

is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 See Licari v. Voog, 374 Fed. Appx. 230, 231 (2d Cir.

(2006). Federal courts “have an independent obligation to 2010) (“[P]rivate attorneys—even if the attorney was court

determine whether subject-matter jurisdiction exists, even in appointed—are not state actors for the purposes of § 1983

the absence of a challenge from any party.” Id. (citing Ruhrgas claims.”) (citing Rodriguez v. Weprin, 116 F.3d 62, 65-66

AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). (2d Cir. 1997)). Furthermore, Proskauer Rose's registration

as a domestic limited liability partnership with the State of

In order to invoke “federal question” jurisdiction, a plaintiff's New York does not render it a “state actor.”1 See Cranley

claims must arise “under the Constitution, laws, or treaties v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir.

of the United States.” 28 U.S.C. § 1331. Here, as Magistrate 2003) (citing S.F. Arts & Athletics, Inc. v. U.S. Olympic

Judge Dancks concluded, Plaintiff has failed to allege a claim Comm., 483 U.S. 522, 543-44 (1987)). Plaintiff has also failed

that arises under the Constitution or laws of the United States to allege that Defendants conspired with any state actor to

of America. Plaintiff's main allegation surrounds the state violate his constitutional rights. Accordingly, Plaintiff has

bar licensure of two private attorneys employed by a private failed to allege a cause of action that provides this Court with

limited liability partnership. See Dkt. No. 1 at 5. There is no subject matter jurisdiction under 28 U.S.C. § 1331. Plaintiff's

federal claim that can be inferred from the facts alleged. objections offer nothing to cure this defect.

Plaintiff has submitted his allegations on a form that is 1 As Magistrate Judge Dancks noted, Proskauer Rose

provided by the Court for pro se litigants to file civil rights

is listed as a domestic registered limited liability

complaints pursuant to 42 U.S.C. § 1983 (“Section 1983”).

partnership with the New York State Division of

See id. at 1. However, there is no indication from Plaintiff's

Corporations. See Dkt. No. 6 at 8 n.4.

allegations that a Section 1983 claim could be supported. In

his objections, Plaintiff agreed with Magistrate Judge Dancks As Magistrate Judge Dancks also found, Plaintiff has failed to

that the reason he used a civil rights complaint form was establish a basis for diversity jurisdiction under 28 U.S.C. §

because it was provided to him by the Court. See Dkt. No. 7 1332. See Dkt. No. 6 at 8. Diversity jurisdiction is only proper

at 4. where “all of the adverse parties in a suit [are] completely

diverse with regard to citizenship.” E.R. Squibb & Sons, Inc.

To state a Section 1983 claim, “a plaintiff must allege (1) v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir.

‘that some person has deprived him of a federal right,’ and 1998) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267,

(2) ‘that the person who has deprived him of that right acted 267 (1806)). For the purposes of diversity jurisdiction, the

under color of state ... law.’ ” Velez v. Levy, 401 F.3d 75, 84 citizenship of limited liability partnerships, like Proskauer

(2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 Rose, is determined by the citizenship of all of its members.

(1990); Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 CV-0336, 2012 WL 1977972, *6 (N.D.N.Y. June 1, 2012).

F.3d 48, 51-52 (2d Cir. 2000).

As such, Plaintiff's complaint is dismissed with prejudice.3

Here, the complaint states that Plaintiff lives in Watervliet, 3 Since the Court is dismissing Plaintiff's complaint

New York, and that Defendants Jacobson and Gray are also with prejudice, the Court will not address Plaintiff's

citizens of New York. See Dkt. No. 1 at 1-2, 5. Proskauer objection to Magistrate Judge Dancks's denial of

Rose's citizenship is determined by the citizenship of each Plaintiff's motion for appointment of counsel.

of its members, including Defendants Jacobson and Gray.2

*4 Accordingly, the Court hereby

See id. As such, all parties are citizens of New York, and

this Court lacks diversity jurisdiction over Plaintiff's claims. ORDERS that Magistrate Judge Dancks's Order and Report-

Accordingly, Plaintiff's complaint is dismissed. Recommendation (Dkt. No. 6) is ADOPTED in its entirety;

and the Court further

2 Defendants Jacobson and Gray are listed

as partners on the Proskauer Rose ORDERS that Plaintiff's complaint (Dkt. No. 1) is

website. Professionals, Proskauer Rose, http:// DISMISSED in its entirety without leave to amend; and

www.proskauer.com/professionals/ (last visited the Court further

July 13, 2017).

When a pro se complaint fails to state a cause of action, the

ORDERS that the Clerk of the Court shall enter judgment in

Defendants' favor and close this case; and the Court further

court generally “should not dismiss 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.”

ORDERS that the Clerk of the Court shall serve a copy of

this Order on Plaintiff in accordance with the Local Rules.

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal

quotation and citations omitted). Of course, an opportunity

to amend is not required where “[t]he problem with [the

IT IS SO ORDERED.

plaintiff's] cause of action is substantive” such that “better

pleading will not cure it.” Id. (citation omitted). As Magistrate All Citations

Judge Dancks found, lack of subject matter jurisdiction is a

substantive defect that cannot be cured by better pleading. See Not Reported in Fed. Supp., 2017 WL 3172999

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

2022 WL 226798 was docketed as the amended complaint.

Only the Westlaw citation is currently available.

United States District Court, N.D. New York. Thereafter, by Orders filed October 28, 2021, November 17,

2021, and December 17, 2021, this Court denied Plaintiff's

Francesca AMATO, Plaintiff, motions to proceed IFP. (Dkt. Nos. 8, 11, 14.) In the December

v. 17, 2021, Order, Plaintiff was afforded one final opportunity

Anthony MCGINTY, Defendant. to submit a fully completed IFP application or pay the entire

filing fee by January 6, 2022. (Dkt. No. 14.) Despite the

1:21-cv-00860 (GLS/TWD) foregoing directive, Plaintiff's fourth IFP application was not

| filed until January 10, 2022. (Dkt. No. 16.)

Signed 01/26/2022

Attorneys and Law Firms II. IFP APPLICATION

Plaintiff declares in her fourth IFP application that she is

FRANCESCA AMATO, Plaintiff, pro se, PO Box 774, unable to pay the filing fee. (Dkt. No. 16.) After reviewing the

Marlboro, NY 12542. submission, the Court finds Plaintiff meets the requirement

for economic need and thus her IFP application is granted.

ORDER AND REPORT-RECOMMENDATION

III. SUFFICIENCY OF THE AMENDED

THÉRÈSE WILEY DANCKS, United States Magistrate COMPLAINT

Judge

A. Legal Standard

*1 Francesca Amato (“Plaintiff” or “Amato”), proceeding 28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to

pro se, filed an action against Ulster County Family Court proceed in forma pauperis, “the court shall dismiss the case

Judge Anthony McGinty (“Defendant” or “Judge McGinty”). at any time if the court determines that – ... (B) the action ...

(Dkt. No. 1.) This case is related to Orr v. McGinty, 1:17- (i) is frivolous or malicious; (ii) fails to state a claim on which

cv-1280 (GLS/TWD). (Dkt. No. 5.1) Plaintiff has not paid relief may be granted; or (iii) seeks monetary relief against

the filing fee, but instead seeks leave to proceed in forma a defendant who is immune from such relief.” 28 U.S.C. §

pauperis (“IFP”). (Dkt. No. 16.) For the reasons discussed 1915(e)(2)(B).

below, the Court grants Plaintiff's fourth IFP application (Dkt.

No. 16) and recommends dismissal of the amended complaint To determine whether an action is frivolous, a court must

(Dkt. No. 6) in its entirety. look to see whether the complaint “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

1 Amato was terminated as party plaintiff in the 325 (1989). To survive dismissal for failure to state a claim,

a complaint must plead enough facts to state a claim that

related action by Order entered August 7, 2019. See

is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550

Orr v. McGinty, 1:17-cv-1280 (GLS/TWD), ECF

U.S. 544, 570 (2007). “A claim has facial plausibility when

Dkt. No. 73. The Court assumes familiarity with

the plaintiff pleads factual content that allows the court to

the related case.

draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

I. BACKGROUND 678 (2009). While Rule 8(a) of the Federal Rules of Civil

Plaintiff initiated this action and moved to proceed IFP Procedure, which sets forth the general rules of pleading,

on July 30, 2021. (Dkt. Nos. 1, 2.) However, the initial “does not require detailed factual allegations, ... it demands

pleading was not signed and Plaintiff was directed to submit more than an unadorned, the-defendant-unlawfully-harmed-

a signed copy of the complaint. (Dkt. No. 5.) On August 13, me accusation.” Id.

2021, Plaintiff submitted a signed copy of the complaint, but

also attached five exhibits that were not submitted with the *2 In determining whether a complaint states a claim upon

which relief may be granted, “the court must accept the

reasonable inferences in the plaintiff's favor.” Hernandez v. The “attached lawsuit” consists of 24 typewritten, single

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). spaced pages, id. at 5-29, along with an additional 56 pages of

“[T]he tenet that a court must accept as true all of the exhibits. (Dkt. Nos. 6-1 through 6-5.) The “attached lawsuit”

allegations contained in a complaint is inapplicable to legal references the related action, Orr v. McGinty, 1:17-cv-1280

conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals (GLS/TWD), and Plaintiff states she is “requesting the right

of the elements of a cause of action, supported by mere to re plead [and] I am also filing a new verified complaint due

conclusory statements, do not suffice.” Id. to ongoing abuse by the defendant.” Id. at 5.

A pro se litigant's pleadings are held to a less strict standard Plaintiff's amended complaint also references 42 U.S.C.

than attorney drafted pleadings. See Fed. Express Corp. v. § 1983. See id. at 5-6. Plaintiff claims the “policies,

Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal practices, procedures and standards established and/or

litigation context, pro se litigants are held to a lesser pleading maintained by Defendant violate the Due Process and Equal

standard than other parties.”). Because Plaintiff is proceeding Protection Clauses of the Fourteenth Amendments to the U.S.

pro se, the Court construes her pleadings “to raise the Constitution.” Id. at 5. She also claims that “[u]nder color

strongest arguments that they suggest.” See Triestman v. Fed. of authority, Anthony McGinty deprived me of my rights

Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per to my child, due process, and ADA rights were completely

curiam) (internal quotation marks omitted). However, this violated.” Id. Plaintiff seeks compensatory and punitive

“does not exempt [Plaintiff] from compliance with relevant damages, along with injunctive and declaratory relief. Id. at

rules of procedural and substantive law.” Traguth v. Zuck, 710 5-6. She further states:

F.2d 90, 95 (2d Cir. 1983).

*3 I demand my son's immediate

B. Summary of the Amended Complaint

return to his home with me at once

Plaintiff brings this action against Defendant in both his

and that a permanent restraining order

“judicial” and “individual” capacity. (Dkt. No. 6 at 1.2) The

is placed on this highly abusive Judge

amended complaint is written on a form complaint brought Anthony McGinty and also in his

pursuant to the American with Disabilities Act (“ADA”). individual capacity as I feel he is

Id. at 1-4. Plaintiff also lists her minor child, C.A.B., as a a threat and danger to my family

plaintiff. Id. at 1, 5 (“Plaintiffs Francesca Amato & C.A.B. within his political power and lack

(hereafter, the ‘Plaintiffs’)—hereby makes these allegations of professionalism and boundaries.

against Defendant herein as follows[.]”). I'm also concerned with his mental

state and feel he is unfit and I have

2 Page references to documents identified by docket overwhelming information and belief

number refer to the numbers assigned by the CM/ that he is an addict.

ECF docketing system maintained by the Clerk's

Office. Unless otherwise indicated, excerpts from

the record are reproduced exactly as they appear in Id. at 26.

the original and errors in spelling, punctuation, and

grammar have not been corrected. According to Plaintiff, “this is also a civil rights action

Her disabilities are listed as “ptsd” and “LAS”, which she brought pursuant to Title VII of the Civil Rights Acts

defines as “Legal Abuse Syndrome caused by defendant's of 1964” because Defendant authorized “unconstitutional,

actions and inactions.” Id. at 2. She complains of the gender-biased contested Judgment of Custody polices,

following conduct: denial of participation in public service practices, procedures and standards.” Id. at 6. Plaintiff

or program, failure to make alterations to accommodate contends Judge McGinty's “policies, practices, procedures

disability, retaliation, and others “in federal suit.” Id. at 3. and standards are gender biased, unconstitutional, have

However, the section of the form complaint titled “Facts” is disparate impact on women and violate women's NYS entitled

blank. See id. As to the “Prayer for Relief”, Plaintiff states equal economic, property ownership and custody rights in

history of court orders that change custody to abusive fathers indefinitely.” Id. at 11.

and remove them from safe, loving caretakers with an extreme

general bias against mothers.” Id. at 11. Defendant also 4 Plaintiff appears to be referring to Defendant,

ignores the ACP address confidentially program of New York along with “Child Attorney Amy Ingram and

State. Id. opposing Counsel Andy Gilday.” (Dkt. No. 6 at

11.) The Court notes Amy Ingram was named as a

Generally, Plaintiff alleges that from “February 2019 defendant in the related case and all claims asserted

to Ongoing” Defendant “enforced polices, practices, against her were dismissed with prejudice. See

procedures, and standards that prevented Plaintiff from

Orr v. McGinty, No. 1:17-cv-1280 (GLS/TWD),

proving the Custody Orders issued by trial were based

ECF Dkt. No. 47 at 13. The Court takes judicial

on the wrong legal standards, erroneous facts, a biased

notice that Amato, along with others, also filed suit

unconstitutional trial. And prevented me from being able

against Judge McGinty, Amy Ingram, and Attorney

to have my witnesses and my own testimony.” Id. at 7. Andrew Gilday (for his role as assigned counsel

Defendant also “denied Plaintiff child access to his Service to Patrick Beesmer, C.A.B.’s father), Beesmer,

dogs and home status quo and private bedroom and consistent and another individual in a previous action,

life needed to heal from past abuse.” Id. also captioned Amato v. McGinty, 1:17-cv-00593

(MAD/ATB), ECF Dkt. No. 1. In that case,

Plaintiff alleges Judge McGinty denied her “all ADA although Amato paid the filing fee, United States

accommodations requested over and over orally and in Magistrate Judge Baxter recommended, inter alia,

writing and further abuse[d] his power by forcing plaintiff to that Amato's Section 1983 claims against Judge

draft own motions and train all parties in the ADA in order to McGinty be dismissed with prejudice as barred

protect my rights that continually are denied.” Id. by judicial immunity. See id., ECF Dkt. No. 11.

United States District Judge D'Agostino adopted

She further claims Judge McGinty is “intentionally practicing the report-recommendation in its entirety and

and inflicting highly unlawful Discriminatory abuse upon judgment was entered accordingly on September

[Plaintiff] due to [her] years of reputable advocacy and

15, 2017. See id. at ECF Dkt. Nos. 19, 20.

exposure of him.” Id. at 6. He has also retaliated against

her because of her “two time best-selling book, Punished 4 *4 Plaintiff claims “having pre diagnosed ptsd and LAS

Protecting: The Injustice of Family Court.” Id.3 received zero ADA Accommodations requested and missed

a court appearance on March 8, 2020.” Id. at 12. According

to Plaintiff, she missed the court appearance “due to stress

3 Plaintiff explains the book “talks about the ongoing and denial of rights combined with fear of [the] court causing

abuse of Anthony McGinty and his ongoing abuse further harm to my son and family and fear of further McGinty

to my family for exposing him. I have been publicly retaliation causing ptsd to be triggered.” Id. She has “no

outspoken long before he was put on my case in recollection of being handed a slip” and did not put the

2016. I've been exposing him since 2014 and my March 8, 2020, court date on her calendar. Id. Plaintiff claims

best selling book was published in 2018. He refuses Defendant:

to recuse from this case which I orally explained

pre trial in 2019 that I would not only never receive refused to give me enough time to get proper expensive

a fair trial but that having to come before him after counsel needed to fight such a traumatic 3rd trial. I was

the tremendous harm he caused my son....” (Dkt. thrown into trial and discriminated further bc I “did such

No. 6 at 14.) a good job, I couldn't possibly have ptsd” this only proves

Plaintiff explains that “anytime I enter the Family Court it will that I didn't willfully miss a court date two days before

be the three of them4 against me leaving an extremely unfair our Country was on COVID quarantine but that with ptsd

memory issues occur during high stress moments. McGinty

disadvantage, further harm and suffering and full control. I

used it as a legal loophole to strip me of all custody giving

am constantly bullied and they cooperate together to continue

my son to his estranged father who barely had visits of 8

to retaliate against me by using my child as their pawn.

hours a month and abandoned the child in California after

McGinty's actions have caused my son and I irreparable

all of this as he testified to it during the 2020 trial. October 2, 2020.” Id. Judge McGinty denied and restricted

communication between Plaintiff and C.A.B., conspired

Id. at 13. with C.A.B.’s and Beesmer's attorneys, and omitted “strong

evidence off the record,” and “pushed several emergency

Plaintiff also claims Judge McGinty “intentionally ignores all motions out far past their legal requirements.” Id. at 16-17.

emergency motions and puts them out months and months at a She also complains of “ongoing discrimination.” Id. Plaintiff

time; and takes hearsay from the father without any evidence also alleges Judge McGinty failed to replace C.A.B.’s

or fact finding violating and taking/ away more rights.” Id. at attorney with an “ethical” attorney. Id.

14.

*5 She further alleges Judge McGinty lied in the October

Plaintiff references the related case, and states that her ADA 2, 2020, Order which cited “concerns” in Plaintiff's home,

claims against Judge McGinty were dismissed in Orr v. without evidence, and falsely stated C.A.B.’s father's home

McGinty, without prejudice and with leave to replead. Id. “has no domestic violence.” Id.

at 15.5 According to Plaintiff, she is pursuing her “right to

replead and add ongoing violations in current proceedings Additionally, on June 3, 2021, Judge McGinty denied

against Judge Antony McGinty and his ongoing abuse to me C.A.B.’s “rights to his service dog again” and “showed

and my son C.A.B.” Id. She explains that she “didn't continue preference to fathers” in that he gave C.A.B.’s father a

at that time to fight this case because my son was returned “courtesy call” when he missed “virtual court” but did not

to my sole custody on September 17, 2017[,] and we were extend the same courtesy to Plaintiff on March 8, 2021, when

healing from the damages and severe trauma.” Id. she failed to appear in court. Id. at 16. When she questioned

Judge McGinty, he “falsely” explained that “virtual court is

5 However, and contrary to Plaintiff's assertion, in different from physical Court when someone doesn't show up

the related action she was not afforded the “right we call them.” Id.

to replead and add current ongoing violations”

rather, Amato's Section 1983 claims against Judge Under a section of the amended complaint labeled “Damages”

McGinty were dismissed with prejudice and her Plaintiff lists twelve “counts.” Id. at 17-19. Plaintiff also

Title II ADA claims were dismissed for failure to lists five “counts” under Title II ADA Violations. Id. at 19.

state a claim upon which relief may be granted. Orr Plaintiff also devotes several pages to what appears to be

v. McGinty, 1:17-CV-01280 (GLS/TWD), ECF excerpts and summaries of what she refers to as “Title II ADA

Dkt. Nos. 47, 74. Case Law re: Accommodations.” See id. at 19-26.

Plaintiff states that she was diagnosed in 2016 and “orally As relief, Plaintiff seeks a temporary restraining order, a

and in writing has requested ADA Accommodations” permanent restraining order, and preliminary injunction. Id. at

“numerous” times to “let the court know” that Defendant 26, 28. Plaintiff is “seeking injunctive relief and a permanent

has “withheld” her child's “full service therapy dogs” since restraining order against [Judge McGinty] to stop his abuse

October 2, 2020, amounting to “intentional and deliberate and allow us to have a fair trial with an unbiased Judge

indifference.” Id. at 15. without any connections to him whatsoever to avoid any

further harm.” Id. at 9. She requests declaratory relief “to the

According to Plaintiff, “Anthony McGinty continues his effect” that Defendant's “actions were illegal and violative

abuse in the form of retaliation, abuse of power, extreme of Plaintiff's right to due process of the law and to equal

harm and pain and suffering, violations of ADA title ii [which protection of the laws.” Id. at 28.

resulted] in a final order dated October 2, 2020. Granting

Patrick Beesmer sole physical custody [of C.A.B.] and all Plaintiff seeks damages in the amount of at least $3,000,000.

decision making power....” Id. Id. at 27-28. Plaintiff asks this Court to “assume jurisdiction

over this matter.” Id. Plaintiff also wants this Court to

Plaintiff lists several ways Judge McGinty has “denied” “restore” her sole custody rights over her minor child. Id. at

her “reasonable accommodations” and “basic rights.” Id. 28. She also asks for any further relief as the Court shall deem

at 16-17. For example, she claims Judge McGinty failed just and proper. Id.6

6 Plaintiff also seeks attorneys fees pursuant to 42 A complaint that does not comply with these Rules “presents

U.S.C. § 1988 and the Equal Access to Justice Act. far too a heavy burden in terms of defendants’ duty to shape a

(Dkt. No. 6 at 28.) However, as she was informed in comprehensive defense and provides no meaningful basis for

the Court to assess the sufficiency of [the plaintiff's] claims,”

the related action, pro se plaintiffs are not entitled

and may properly be dismissed by the court. Gonzales v. Wing,

to such fees. Orr v. McGinty, No. 1:17-cv-01280,

167 F.R.D. 352, 355 (N.D.N.Y. 1996). “Dismissal, however,

ECF Dkt. No. 47 at 3 n.6 (citing SEC v. Price

is usually reserved for those cases in which the complaint is so

Waterhouse, 41 F.3d 805, 808 (2d Cir. 1994)).

confused, ambiguous, vague, or otherwise unintelligible that

For a complete statement of Plaintiff's claims, reference is its true substance, if any, is well disguised.” Artuz, 1998 WL

made to the amended complaint. (See generally Dkt. No. 6.) 832708, at *2 (internal quotation marks omitted).

The amended complaint contains rambling legal arguments,

C. Discussion

numerous disjointed sentences, and repeated conclusory

Initially, the Court finds the amended complaint fails to

allegations. (Dkt. No. 6.) Moreover, while the amended

comply with Rules 8 and 10 of the Federal Rules of Civil

complaint contains some numbered sections, the numbering is

Procedure. Rule 8 of the Federal Rules of Civil Procedure

of limited value since some of the numbered sections contain

provides that a pleading which sets forth a claim for relief

numerous sentences, and/or contain multiple paragraphs, and/

shall contain, among other things, “a short and plain statement

or are repeated. Id. As a result, it is difficult for the Court

of the claim showing that the pleader is entitled to relief.” Fed.

to determine the sufficiency of Plaintiff's allegations, and it

R. Civ. P. 8(a)(2). The purpose of this Rule “is to give fair

would be difficult for Defendant to shape a comprehensive

notice of the claim being asserted so as to permit the adverse

defense. As such, the amended complaint fails to comply with

party the opportunity to file a responsive answer [and] prepare

Rules 8 and 10 of the Federal Rules of Civil Procedure.

an adequate defense.” Hudson v. Artuz, No. 95 CIV 4768,

1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (citations

However, the Court refrains from recommending dismissal on

omitted). The statement should be “short and plain” because

this basis alone because the amended complaint does not quite

“[u]nnecessary prolixity in a pleading places an unjustified

rise to the level of being “so confused, ambiguous, vague,

burden on the court and the party who must respond to it

or otherwise unintelligible that its true substance, if any, is

because they are forced to select the relevant material from a

well disguised.” Rather, this action represents yet another

mass of verbiage.” Salahuddin v. Cuomo, 861 F.2d 40, 41-42

lawsuit whereby Plaintiff is complaining of Defendant's

(2d Cir. 1998) (quoting 5 C. Wright & A. Miller, Federal

handing of and decisions issued in family court proceedings.

Practice and Procedure § 1281, at 365 (1969)). Moreover,

Construed liberally, Plaintiff seeks to nullify family court and

Rule 10 of the Federal Rules of Civil Procedure provides, in

custody determinations issued by Defendant, and asks this

part:

Court to restore her sole custody, requests declaratory and

injunctive relief, and monetary compensation. As such, in

accordance with 28 U.S.C. § 1915(e), the Court will review

*6 (b) Paragraphs; Separate the sufficiency of the amended complaint.

Statements. A party must state its

claims or defenses in numbered

paragraphs, each limited as far

as practicable to a single set of 1. Minor Plaintiff

circumstances.

As Plaintiff is aware, an individual “who has not been

admitted to the practice of law may not represent anybody

other than himself.” Amato v. McGinty, No. 1:17-CV-00593

Fed. R. Civ. P. 10(b). This serves the purpose of “provid[ing] (MAD/ATB), 2017 WL 4083575, at *4 (N.D.N.Y. Sept. 15,

an easy mode of identification for referring to a particular 2017) (quoting Guest v. Hansen, 603 F.3d 15, 20 (2d Cir.

paragraph in a prior pleading[.]” Flores v. Graphtex, 189 2010) (citing Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir.

F.R.D. 54, 55 (N.D.N.Y. 1999) (quotation marks and citations 2007))); see also Orr v. McGinty, No. 1:17-cv-1280 (GLS/

omitted). TWD), ECF Dkt. No. 47 at 1 n.1, 13 (plaintiff-mothers cannot

and directing the Clerk to amend the caption to remove all 2010), aff'd, 434 F. App'x 32 (2d Cir. 2011). The

references to the minor children). Similarly, “a non-attorney Eleventh Amendment, on the other hand, shields

parent must be represented by counsel in bringing an action judges from suit to the extent that they are sued

on behalf of his or her child.” Amato v. McGinty, 2017 WL in their official capacities. See Ying Jing Gan, 996

4083575, at *4 (quoting Cheung v. Youth Orchestra Found. of F.2d at 529 (“To the extent that ... a claim is asserted

Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)). against the state official in his official capacity,

he may assert the state's Eleventh Amendment

*7 Therefore, the Court does not construe the amended immunity against suit.”).

complaint to include any claims or causes of action brought on Judges are absolutely immune from suit for damages

behalf of C.A.B. The Court also recommends that the Clerk for any actions taken within the scope of their judicial

be directed to amend the docket to remove all references to

responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991).

C.A.B.

Generally, “acts arising out of, or related to, individual cases

before the judge are considered judicial in nature.” Bliven v.

Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations of

2. Section 1983 bad faith or malice cannot overcome judicial immunity.” Id. at

209 (citations omitted). This is because, “[w]ithout insulation

Section 1983 provides redress for a deprivation of federally from liability, judges would be subject to harassment and

protected rights by persons acting under color of state law. intimidation [.]” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).

42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, In addition, Section 1983 provides that “in any action brought

155-57 (1978). To state a claim under Section 1983, a plaintiff against a judicial officer for an act or omission taken in such

must allege both that: (1) a right secured by the Constitution officer's judicial capacity, injunctive relief shall not be granted

or laws of the United States was violated, and (2) the right unless a declaratory decree was violated or declaratory relief

was violated by a person acting under the color of state law, was unavailable.” 42 U.S.C. § 1983.

or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).

Judicial immunity does not apply when the judge takes action

As noted, Plaintiff has named Judge McGinty as the “outside” his judicial capacity, or when the judge takes action

sole defendant in his “judicial” and “individual” capacity. that, although judicial in nature, is taken “in absence of

However, and as Plaintiff was previously informed in jurisdiction.” Mireles, 502 U.S. at 9-10; see also Bliven, 579

the related action, Plaintiff's Section 1983 claims against F.3d at 209-10 (describing actions that are judicial in nature).

Judge McGinty are barred by the Eleventh Amendment and But “the scope of [a] judge's jurisdiction must be construed

judicial immunity.7 See Orr v. McGinty, No. 1:17-cv-1280 broadly where the issue is the immunity of the judge.” Stump

(GLS/TWD), ECF Dkt. No. 47 at *4 (dismissing Amato's v. Sparkman, 435 U.S. 349, 356 (1978).

Section 1983 claims against Judge McGinty with prejudice);

Treistman v. McGinty, No. 1:16-cv-1403, 2018 WL 4078262, *8 As detailed above, Plaintiff has brought several

at *1 (N.D.N.Y. Aug. 27, 2018) (finding the plaintiff's claims allegations against Judge McGinty, including that he

against the individual defendants in their official capacity violated her constitutional rights, conspired with other

as Family Court employees are barred by the Eleventh individuals, endangered the welfare of C.A.B., denied her

Amendment); see also Amato v. McGinty, 2017 WL 4083575, “accommodations,” and retaliated against her for being

at *4. The same result is required here. outspoken about Judge McGinty's purported abuses and

discrimination against mothers and children. However, all

7 Judicial immunity shields judges from suit to of the acts described in the amended complaint arise out of

family court proceedings before Judge McGinty, the functions

the extent that they are sued in their individual

complained of were ones normally performed by a judge, and

capacities. See Ying Jing Gan v. City of N.Y., 996

Plaintiff was a party who dealt with Judge McGinty in his

F.2d 522, 529 (2d Cir. 1993); Martinez v. Queens

judicial capacity. Plaintiff has not alleged that Judge McGinty

Cty. Dist. Attorney, No. 12-CV-06262, 2014 WL

took nonjudicial actions or that he acted in the absence of

1011054, at *8 n. 8 (E.D.N.Y. Mar. 17, 2014),

jurisdiction. Notwithstanding Plaintiff's allegations that Judge

aff'd, 596 F. App'x 10 (2d Cir. 2015); McKnight v.

for her “exposing” abuses in Family Court, Judge McGinty

was still performing judicial functions and presiding over

3. Title VII

Plaintiff's custody action in Ulster County Family Court.

As stated above, a judge does not lose his or her judicial Title VII provides that “[i]t shall be unlawful employment

immunity because he is accused of acting with malice or practice for an employer ... to fail or refuse to hire or to

corruptly. Accordingly, Judge McGinty is entitled to judicial discharge any individual, or otherwise to discriminate against

immunity. See Mireles, 502 U.S. at 12-13; Bliven, 579 F.3d any individual with respect to his compensation, terms,

at 210. conditions, or privileges of employment, because of such

individual's race, color, religion, sex or national origin.” 42

Judge McGinty is also protected under sovereign immunity. U.S.C. § 2000e-2(a); see Vega v. Hempstead Union Sch. Dist.,

In Gollomp v. Spitzer, the Court held that the New York 801 F.3d 72, 86 (2d Cir. 2015) (A plaintiff asserting a Title

Unified Court System is an “arm of the State” and affirmed VII discrimination claim must allege facts showing that “(1)

the dismissal of a Section 1983 claim against a judge under the employer took adverse action against him and (2) his race,

sovereign immunity. 568 F.3d 355, 365-68 (2d Cir. 2009). color, religion, sex, or national origin was a motivating factor

Likewise, Plaintiff has filed her complaint against Judge in the employment decision.”).

McGinty, a member of the Ulster County Family Court,

which is part of the New York Unified Court System. N.Y. Here, Plaintiff claims in conclusory fashion that Judge

Const. Art. VI, §§ 1, 13. All of Judge McGinty's alleged McGinty “discriminates” against women in violation of

constitutional violations occurred while he acted within his Title VII. Plaintiff does not, however, allege employment

official capacity as a Family Court judge in adjudicating a discrimination or that she is or was an employee of Judge

custody dispute. Therefore, all claims against Judge McGinty McGinty and, therefore, the claim is frivolous.8 See Jones

should be dismissed, because “a suit against a state official

v. Thomas, No. 20-CV-5581, 2020 WL 5077026, at *4

in his official capacity is, in effect, a suit against the

(S.D.N.Y. Aug. 27, 2020) (dismissing plaintiff's claims

state itself, which is barred.” Walker v. Fam. Ct. Judge

pursuant to Title VII where the plaintiff did not allege that

Catherine Cholakis, No. 1:19-CV-1288 (LEK/CFH), 2020

he is or was an employee of any of the defendants); Basora-

WL 3503158, at *7 (N.D.N.Y. June 29, 2020) (citations

Jacobs v. Palevsky, No. 20-CV-1675, 2020 WL 3868710, at

omitted).

*2 (E.D.N.Y. July 10, 2020) (dismissing the plaintiff's Title

VII claims because “[t]he complaint does not list Plaintiff's

Moreover, Plaintiff is not entitled to injunctive relief because

employer as a defendant in the case caption.”). Since Title VII

she “allege[d] neither the violation of a declaratory decree,

claims are to be raised against a plaintiff's employer, there is

nor the unavailability of declaratory relief.” See Montero v.

no proper Title VII defendant in this case. Militinska-Lake v.

Travis, 171 F.3d 757, 761 (2d Cir. 1999). Nor is Plaintiff

Kirnon, No. 1:20-CV-443 (TJM/CFH), 2021 WL 3569807, at

entitled to declaratory relief because she alleges only past

*9 (N.D.N.Y. Aug. 11, 2021) (“As a general rule, the proper

conduct and does not seek to prevent an ongoing or future

defendant in a Title VII case against a State entity is the actual

violation of federal law. See Shtrauch v. Dowd, 651 F. App'x

department or agency that employs the plaintiff.”) (citation

72, 74 (2d Cir. 2016) (citing Blanciak v. Allegheny Ludlum

omitted).

Corp., 77 F.3d 690, 698 (3d Cir. 1996) (concluding that relief

sought was not prospective where the “specific allegations

target[ed] past conduct” and the “remedy [was] not intended 8 Moreover, “[i]t is axiomatic that ‘Title VII does

to halt a present, continuing violation of federal law”)). not impose liability on individuals.’ ” Hamlett v.

City of Binghamton, No. 3:20-CV-880 (GLS/ML),

The Court therefore recommends dismissing Plaintiff's 2021 WL 3723091, at *2 (N.D.N.Y. Aug. 23, 2021)

Section 1983 claims against Judge McGinty under the (quoting Lore v. City of Syracuse, 670 F.3d 127, 169

doctrines of judicial and sovereign immunity and as frivolous. (2d Cir. 2012) (citations omitted)); see also Golden

See 28 U.S.C. § 1915(e)(2)(B)(i), (iii); see also Montero, 171 v. Syracuse Reg'l Airport Auth., No. 5:20-CV-1566

F.3d at 760 (“A complaint will be dismissed as ‘frivolous’ (MAD/TWD), 2021 WL 485731, at *1 (N.D.N.Y.

when ‘it is clear that the defendants are immune from suit.’ Feb. 10, 2021) (“[I]ndividuals are not subject to

” (quoting Neitzke, 490 U.S. at 327)).

citation omitted). 9 The Court notes judicial immunity also extends

*9 Accordingly, the Court recommends that Plaintiff's Title to Plaintiff's ADA claims for damages. See Orr

VII claims against Judge McGinty be dismissed. v. McGinty, No. 1:17-cv-01280, Dkt. No. 47

at 5 (citing Brooks v. Onondaga Cty. Dep't of

Children & Family Servs., 5:17-CV-1186, 2018

WL 2108282, at *4 (N.D.N.Y. Apr. 9, 2018)

4. ADA

(collecting cases)).

Title II of the ADA provides that “no qualified individual Even if the Court assumes for purposes of initial review only,

with a disability shall, by reason of such disability, be that Plaintiff was disabled during the state court proceedings

excluded from participation in or be denied the benefits of within the meaning of the ADA, and Judge McGinty was

the services, programs, or activities of a public entity, or be a proper defendant in his official capacity,10 her assertions

subjected to discrimination by any such entity.” 42 U.S.C.

do not show that Judge McGinty discriminated or retaliated

§ 12132. To plead an ADA claim, a plaintiff must allege:

against her because of her PTSD. It is not enough for Plaintiff

“(1) that [s]he is a qualified individual with a disability;

to state that she is disabled and that bad things happened to

(2) that [s]he was excluded from participation in a public

her in the state court proceedings; she must allege facts from

entity's services, programs or activities or was otherwise

which a reasonable trier of fact could infer that these things

discriminated against by a public entity; and (3) that such

happened to her because of discrimination on the basis of

exclusion or discrimination was due to [her] disability.”

her disability. The use of “buzz words” such as “disability,”

Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (internal

“accommodation,” and “retaliation” does not cure a pleading

quotation marks and citation omitted).

defect such as the one herein. See Barr v. Abrams, 810 F.2d

358, 362 (2d Cir. 1986) (the Second Circuit has repeatedly

As discussed, Plaintiff has utilized a form ADA complaint,

held, “complaints relying on the civil rights statutes are

largely alleges disability due to PTSD, and claims Judge

insufficient unless they contain some specific allegations of

McGinty denied her “accommodations” and “retaliated”

fact indicating a deprivation of rights, instead of a litany of

against her during family court proceedings. For reasons

general conclusions that shock but have no meaning”). She

set forth below, Plaintiff's purported disability-based claims

does not allege any facts suggesting a plausible connection

under the ADA must also be dismissed.

between her alleged PTSD and “LAS” and the actions that

were taken against her in the state court proceedings. Rather,

First, to the extent Plaintiff asserts ADA claims against Judge

Plaintiff merely states she “has no recollection of being

McGinty in his individual capacity, such claims fail as a

handed a slip” regarding the March 8, 2020, court date that

matter of law because there is no individual liability under

she missed. Moreover, Plaintiff's passing reference that she

Title II of the ADA. See Garcia v. SUNY Health Scis. Ctr.

“requested audio of the court hearings so that I can have time

of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (holding that

to listen to prepare as pro se for continuing proceedings” or

defendants cannot be sued in their individual capacities for

that Judge McGinty “refused to give me enough time to get

violating Title II of the ADA); see also Spiegel v. Schulmann,

proper expensive counsel needed to fight such a traumatic 3rd

604 F.3d 72, 79 (2d Cir. 2010) (“the retaliation provision of

trial” are insufficient to state a claim. (Dkt. No. 6 at 13, 14.)

the ADA ... cannot provide for individual liability”); Myers

v. N.Y.-Dep't of Motor Vehicles, No. 06-CV-4583, 2013 WL

3990770, at *9 (E.D.N.Y. Aug. 5, 2013) (“[N]umerous district 10 As observed in the related case, “It is questionable

courts in this [C]ircuit have persuasively held that there is whether defendants, even when sued in their

no individual liability under Title I or Title II of the ADA, official capacities, are public entities.” Orr v.

regardless of whether the claim is brought in an individual McGinty, No. 1:17-cv-01280, Dkt. No. 74 at 4

or official capacity.”); Netti v. Ayers, No. 17-CV-976, 2017 n.4 (citing Santiago v. Garcia, 70 F. Supp. 2d 84,

WL 7542494, at *18 (Oct. 5, 2017) (“individuals cannot be 89 (D. P.R. 1999) (holding state court judge sued

held liable under the ADA”) (citing cases). Thus, Plaintiff's in official capacity was not “public entity” under

ADA claims against Judge McGinty, insofar as he is sued in Title II); but see Shollenberger v. N.Y. State Unified

his individual capacity, must be dismissed.9 Court Sys., 18 CV 9736, 2019 WL 2717211, at *5

against Chief Judge of the State of New York and rights of visitation); Sobel v. Prudenti, 25 F. Supp. 3d

and Chief Administrator of the New York State 340, 353 (E.D.N.Y. 2014) (the domestic relations exception

Unified Court System because “a plaintiff need “divests the federal courts of power to issue divorce, alimony,

only allege the defendant[s] ha[ve] responsibility and child custody decrees”). Accordingly, to the extent the

for the alleged conduct and the ability to redress the amended complaint is seeking a child custody decree from the

alleged violations”)). Court, the court lacks jurisdiction to adjudicate such a claim.

*10 In light of the foregoing, the Court recommends See, e.g., Amato v. McGinty, No. 17-CV-593 (MAD/ATB),

dismissing Plaintiff's ADA claims, if any, against Judge 2017 WL 9487185, at *8 (N.D.N.Y. Jun. 6, 2017) report and

McGinty. See 28 U.S.C. § 1915(e)(2)(B)(ii). recommendation adopted by 2017 WL 4083575 (N.D.N.Y.

Sept. 15. 2017).

5. Domestic Relations Exception, Rooker-

Feldman11 Doctrine, and Younger12 Abstention b. Rooker-Feldman Doctrine

In the event the relevant underlying state court proceedings

11

District of Columbia Court of Appeals v. Feldman, are concluded, such claims may be barred by the Rooker-

460 U.S. 462 (1983) and Rooker v. Fidelity Trust Feldman doctrine. This doctrine divests the federal court of

Co., 263 U.S. 413, 414-17 (1923). jurisdiction to consider actions that seek to overturn state

12 court judgments. Fernandez v. Turetsky, No. 12-CV-4092,

Younger v. Harris, 401 U.S. 37 (1971). 2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014) (citing

Due to the nature of Plaintiff's amended complaint, it is Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

difficult to precisely determine exactly which doctrines apply, 280, 284 (2005); Dorce v. City of New York, 2 F.4th 82, 101

but based upon the relief sought, even if Plaintiff had sued an (2d Cir. 2021) (“The Rooker-Feldman doctrine bars federal

appropriate defendant, her claims are also likely barred by the district courts from hearing cases that in effect are appeals

Rooker-Feldman doctrine, domestic relations exception, and/ from state court judgments, because the Supreme Court is the

or Younger abstention. only federal court with jurisdiction over such cases.”)). The

doctrine also bars the federal court from considering claims

that are “inextricably intertwined” with a prior state court

determination. Fernandez v. Turetsky, 2014 WL 5823116, at

a. Domestic Relations Exception

*3 (quoting Johnson v. Smithsonian Inst., 189 F.3d 180, 185

Under the domestic relations exception to the jurisdiction of (2d Cir. 1999)).

federal courts, cases involving divorce, alimony, and child

custody remain outside federal court jurisdiction. Marshall *11 The Rooker-Feldman doctrine applies where the federal

v. Marshall, 547 U.S. 293, 308 (2006). This exception is court plaintiff: (1) lost in state court, (2) complains of injuries

based upon a policy dictating that the states have traditionally caused by the state court judgment, (3) invites the district

adjudicated marital and child custody disputes, developing court to review and reject the state court judgment, and

“competence and expertise in adjudicating such matters, (4) commenced the district court proceedings after the state

which federal courts lack.” Thomas v. N.Y. City, 814 F. Supp. court judgment was rendered. Vossbrinck v. Accredited Home

1139, 1146 (E.D.N.Y. 1993). Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014).

Here, in order to return custody of C.A.B. to Plaintiff, or to Here, it appears Plaintiff “lost” in state court, complains of

“enjoin” the state court's orders, this Court would have to re- injuries caused by the state court judgments, and asks this

determine Judge McGinty's decision in the custody matter. Court to invalidate the state court's judgments regarding child

This would also involve resolving factual disputes regarding custody. See Dkt. No. 6 at 29. Thus, as currently drafted,

custody and visitation. This court is divested of jurisdiction to the amended complaint is likely barred under the Rooker-

make such determinations. See Ankenbrandt v. Richards, 504 Feldman doctrine.

U.S. 689, 703 (1992); Hernstadt v. Hernstadt, 373 F.2d 316,

c. Younger Abstention 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).

In the event the underlying state court proceedings remain Here, better pleading could not cure the Court's lack of subject

pending, Plaintiff's request for this Court's involvement matter jurisdiction based on the immunities described above,

may also implicate the Younger abstention doctrine. See which appear to apply to all claims except for Plaintiff's ADA

generally Younger v. Harris, 401 U.S. 37 (1971). Under the claim seeking prospective injunctive relief.

Younger doctrine, “federal courts [must] abstain from taking

jurisdiction over federal constitutional claims that involve *12 Nevertheless, in light of Plaintiff's pro se status and

or call into question ongoing state proceedings.” Diamond in an abundance of caution, as was the case in the related

“D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. action, better pleading—addressing the deficiencies outlined

2002); see also Huffman v. Pursue, Ltd., 420 U.S. 592, 602 above—could potentially save Plaintiff's ADA claim for

n.16 (1975) (extending the equitable principles that required prospective injunctive relief against Judge McGinty from

abstention with respect to injunctive relief in Younger apply being sua sponte dismissed on initial review. See, e.g., Orr

to requests for declaratory relief as well). v. McGtiny, No. 1:17-cv-1280 (GLS/TWD), ECF Dkt. No.

47 at 10-11.13 As such, the Court recommends this claim be

In Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013), dismissed without prejudice and with leave to amend.14

the Supreme Court clarified that the Younger doctrine is

l si tm ati et e cd r imto i nt ah l r pe re o se ex cc ue tp ioti no sn ; a (l 2 )c cir ic vu ilm es nt fa on rc ce es m, ei nn tc , l ou rd i “n qg u a( s1 i-) 13 At this juncture, the Court expresses no opinion on

criminal,” proceedings; and (3) “civil proceedings involving the sufficiency of any such claim.

certain orders that are uniquely in furtherance of the state 14 If the District Court adopts this Report-

courts’ ability to perform their judicial functions.” Id. at

Recommendation, and if Plaintiff chooses to file

72-73. “[T]here can be no doubt that a custody dispute ...

a second amended complaint, the pleading must

raises important state interests.” Graham v. N.Y. Ctr. for

comply with Rules 8 and 10 of the Federal Rules.

Interpersonal Dev., No. 15-CV-459, 2015 WL 1120121,

The revised pleading will replace the amended

at *2-3 (E.D.N.Y. Mar. 12, 2015) (holding that plaintiff's

complaint, and must be a wholly integrated and

claim for injunctive relief was barred by Younger when the

complete pleading that does not rely upon or

plaintiff sought to challenge an ongoing family court custody

incorporate by reference any pleading or document

proceeding) (citation omitted).

previously filed with the Court. See Shields v.

Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d

Accordingly, to the extent that the child custody issues are

Cir. 1994) (“It is well established that an amended

continuing in Family Court, the Court should abstain from

complaint ordinarily supersedes the original and

interfering with that process. See, e.g., Cogswell v. Rodriguez,

renders it of no legal effect.”). The revised

304 F. Supp. 2d 350, 357 (E.D.N.Y. 2004) (applying Younger

pleading should not attempt to resurrect any claims

abstention in child support matter); Lomtevas v. New York

dismissed with prejudice in this action and/or

State, No. 03-CV-2359, 2003 WL 22937688, at *2 (E.D.N.Y.

claims brought or could have been brought in the

Nov. 13, 2003) (same).

related case. See Lopez v. Jet Blue Airways, No. 12-

CV-0057, 2012 WL 213831, at *2 (E.D.N.Y. Jan.

IV. LEAVE TO AMEND 24, 2012) (“Under the doctrine of res judicata, once

Generally, when the court dismisses a pro se complaint sua a final judgment has been entered on the merits

sponte, the court should afford the plaintiff the opportunity to of a case, that judgment will bar any subsequent

amend at least once, however, leave to replead may be denied litigation by the same parties or those in privity

where any amendment would be futile. Hill v. Curcione, 657 with them concerning the transaction, or series

F.3d 116, 123-24 (2d Cir. 2011); Ruffolo v. Oppenheimer & of connected transactions, out of which the [first]

Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when action arose.”).

the problem with the plaintiff's causes of action is substantive

V. PLAINTIFF'S ADDRESS

duty to inform the Court of any address changes in writing. is further

L.R. 10.1(c)(2). For the orderly disposition of cases, it is

essential that litigants honor their continuing obligation to RECOMMENDED that the Clerk be directed to amend the

keep the Court informed of address changes. To date, all the docket to remove all references to C.A.B., and it is further

Court's Orders mailed to Plaintiff's address on file have been

returned as undeliverable. (Dkt. Nos. 10, 12, 15.) ORDERED that Plaintiff must file a CHANGE OF

ADDRESS within THIRTY DAYS of the date of the

In an extraordinary display of special solicitude to Plaintiff Report-Recommendation, and she must continue to submit

any address changes to the Court as long as this action is

as a pro se litigant, the Clerk was directed to mail a one-time

pending; failure to notify the Court of a change of address in

courtesy copy of each Order at the confidential and redacted

accordance with L.R. 10.1(c)(2) may result in the dismissal

address indicated on the envelope of Plaintiff's submissions to

of any pending action; and it is further

the Court and as verbally provided to the Clerk on December

1, 2021. (See generally Docket Report; see Dkt. Nos. 11,

14.15) However, Plaintiff must file a change of address IN

ORDERED that the Clerk mail a copy of this Order and

Report-Recommendation to Plaintiff at the address listed on

WRITING within thirty days, and she must continue to submit

the docket and to mail a FINAL one-time courtesy copy to the

any address changes to the Court as long as her action is

confidential and redacted address indicated on the envelope

pending. “Failure to notify the Court of a change of address

of Dkt. No. 16 and as verbally provided to the Clerk on

in accordance with L.R. 10.1(c)(2) may result in the dismissal

December 1, 2021.

of any pending action.” L.R. 41.2(b).

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

15 While not entirely clear to the Court, it appears days within which to file written objections to the

this “confidential” address differs from Plaintiff's foregoing report.17 Such objections shall be filed with

residence, while the PO Box on file is the business the Clerk of the Court. FAILURE TO OBJECT TO

address for Plaintiff's “home office” Punished 4 THIS REPORT WITHIN FOURTEEN DAYS WILL

Protecting. (See Dkt. No. 16.) PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health

VI. CONCLUSION and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §

WHEREFORE, after carefully considering this matter, and 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).

for the reasons explained above, it is hereby

17

If you are proceeding pro se and are served with this

ORDERED that Plaintiff's IFP application (Dkt. No. 16) is

Order and Report-Recommendation by mail, three

GRANTED;16 and it is further

additional days will be added to the fourteen-day

period, meaning that you have seventeen days from

16 Plaintiff should note that although her IFP the date the Order and Report-Recommendation

application has been granted, she will still be was mailed to you to serve and file objections. Fed.

required to pay fees that she may incur in this R. Civ. P. 6(d). If the last day of that prescribed

action, including copying and/or witness fees. period falls on a Saturday, Sunday, or legal holiday,

then the deadline is extended until the end of the

*13 RECOMMENDED that Plaintiff's amended complaint

next day that is not a Saturday, Sunday, or legal

(Dkt. No. 6) be sua sponte dismissed in its entirety pursuant

holiday. Fed. R. Civ. 6(a)(1)(C).

to 28 U.S.C. § 1915(e); and it is further

RECOMMENDED that all claims be DISMISSED WITH All Citations

PREJUDICE except that Plaintiff's ADA claim for

Slip Copy, 2022 WL 226798

prospective injunctive relief be DISMISSED WITHOUT

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.