Sander v. Township of Coxsackie Court

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

PATRICK SANDER,

Plaintiff,

V.

No. 1:23-CV-783

TOWNSHIP OF COXSACKIE COURT, et al., (DNH/CFH)

Defendants.

APPEARANCES:

Patrick Sander

7 Saint Josephs Terrace

Albany, New York 12206

Plaintiff pro se

I

REPORT-RECOMMENDATION AND ORDER

I. Background

Plaintiff pro se Patrick Sander (“plaintiff”) commenced this action on June 28,

2023, by filing a complaint. See Dkt. No. 1 (“Compl.”). Plaintiff also filed an application

to proceed in forma pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed

plaintiffs IFP application and determines that he financially qualifies to proceed IFP."

ll. Initial Review

A. Legal Standard

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.

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

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

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

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

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

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

proceed with his action.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

$002) 9 financial criteria. See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y.

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).

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

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

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

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

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

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

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

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

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

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

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

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

Further, Rule 10 provides in pertinent part that:

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

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

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

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence — and each defense other than a denial — must

be stated in a separate count or defense.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1995).

B. Plaintiff's Complaint

Plaintiff alleges that on November 21, 2022, he was driving southbound on

highway I-87 when he passed Township of Coxsackie Police Officer Anthony J.

Bartolucci. See Compl. at 3. The first time plaintiff passed Officer Bartolucci, the officer

followed plaintiff for several miles and then “sped up and passed” plaintiff. Id. Plaintiff

passed Officer Bartolucci a few miles down the road and Officer Bartolucci pulled

plaintiff over because of his “inspection sticker.” Id. Plaintiff forgot his driver’s license at

home. See id. Plaintiff was charged with “Unlicensed Operator” and “Uninspected

Motor Vehicle” and issued a Summons to appear in court See id.

On December 12, 2022, plaintiff “responded to the summons” and was told to

wait for a court date by Town Justice Wanda J. Dorpfeld. Compl. at 3. Plaintiff received

a letter the next day stating that Justice Dorpfeld accepted plaintiff's not guilty plea and

offering a plea deal. See id. If plaintiff was not going to accept the deal, he was

instructed to call the Town Court. See id.

Plaintiff “received a second notice from the [] Department of Motor Vehicles” on

March 8, 2023, explaining that “a trial and appearance” had occurred on December 12,

2022, and that a suspension of his license would take effect on April 14, 2023, if he did

not respond by March 30. See Compl. at 3-4. The notification also included

instructions on pleading guilty or not guilty. See id. at 4. Plaintiff “immediately called

the Township of Coxsackie Court to inquire about th[e] suspension notice” and he “was

told that [his] license would not be suspended.” Id. Plaintiff sent a letter to Justice

Dorpfeld on March 29, 2023, with the completed not guilty forms and he indicated that

wished to resolve the case by showing proof of his remedied inspection sticker and

his license being valid at the time of the stop. See id. On April 11, Justice Dorpfeld

sent plaintiff a letter indicating that she received plaintiff's letter, but that his license

would be suspended on April 14 and until the tickets were resolved. See id. Plaintiff

then called the Town Court and spoke with Deputy Town Court Clerk Jaqueline Polizzi

who “berated” plaintiff and told him that his “license would be suspended indefinitely and

m| that there were some outlandish instructions that” he did not follow. Id. Plaintiff alleges

that Ms. Polizzi then had Town of Coxsackie Police Officer Springsted contact plaintiff

and threaten to arrest him for harassment because he “called the Town Court too many

times[.]” Id. Plaintiff wrote to Governor Kathy Hochul and the Chief Judge of Green

County and filed a complaint with the Department of Justice. See id. at 5.

Plaintiff's license was suspended on April 14, 2023, “indefinitely until [he]

complied with some Ad Hoc submission rule[.]” Compl. at 5. Plaintiff alleges that this

has made him unable to work or handle his daily affairs and is a violation of his right to

due process. See id. Plaintiff contends that everything was a “racially motivated

situation.” Id. He also contends that “[t]he town still has a sign and illegal policy posted

the front door stating no cellphones in a publicly funded building.” Id. Plaintiff asks

that the charges against be “voided and made null,” and he seeks $100,000 in

damages, punitive damages, and an investigation into the Town of Coxsackie Courts.

See id. at 8.

raf Ill. Analysis

A. Sovereign and Judicial Immunities

Plaintiff seeks to sue the Town of Coxsackie Court, Town Justice Wanda J.

Dorpfeld, Deputy Court Clerk Jaqueline Polizzi, and the New York State Department of

Motor Vehicles (“DMV”) Commissioner Mark J.F. Schroeder. See Compl. at 1-2.

The Eleventh Amendment to the U.S. Constitution states that “[t]he Judicial

power of the United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Thus,

“[a]s 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.” Kisembo v. N.Y.S. Office of Children &

Family Servs., 285 F. Supp. 3d 509, 519 (N.D.N.Y. 2018) (quoting Jackson v. Battaglia,

63 F. Supp. 3d 214, 219-20 (N.D.N.Y. 2014)). “This jurisdictional bar applies regardless

of the nature of the relief sought.” Murawski v. N.Y. State Bd. of Elections, 285 F. Supp.

3d 691, 695 (S.D.N.Y. 2018) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 100 (1984)). “This immunity ‘extends beyond state agencies to state officials at

| those agencies working on behalf of the state (i.e., in their official capacities).’”

Kisembo, 285 F. Supp. 3d at 519 (quoting Emmons v. City Univ. of N.Y., 715 F. Supp.

2d 394, 406 (E.D.N.Y. 2010).

“The Unified Court System . . . is the name for the entire New York State

judiciary[.]” T.W. v. New York State Bd. of L. Examiners, 996 F.3d 87, 95 (2d Cir. 2021)

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

m}and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v. Spitzer, 568

F.3d 355, 368 (2d Cir. 2009) (quoting Woods v. Rondout Valley Cent. Sch. Dist. Bd. of

Educ., 466 F.3d 232, 236 (2d Cir. 2006)).

Plaintiff names the Town of Coxsackie Court as a defendant. See Compl. at 1.

As the Town Court is a part of New York’s Unified Court System, it is immune from suit

under the Eleventh Amendment. See N.Y. Const. art. VI, § 1(a) (“The unified court

system for the state shall also include the district, town, city and village courts outside

the city of New York... .”); Surpris v. Harrison Police Dep't, No. 21-CV-7697 (LTS),

2021 WL 5166364, at *2 (S.D.N.Y. Nov. 5, 2021) (“[The pllaintiff sues the Harrison

Town Court — a part of the New York State Unified Court System. The Court therefore

dismisses Plaintiff's Section 1983 claims against this defendant under the doctrine of

Eleventh Amendment immunity . . . .”).2 Thus, the undersigned recommends dismissing

plaintiff's complaint against the Town of Coxsackie Court.

Additionally, “[w]ith minor exceptions, judges are entitled to absolute immunity for

actions relating to the exercise of their judicial functions.” Zavalidroga v. Girouard, No.

6:17-CV-682 (BKS/ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017) (citing

| Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam)). “Judicial immunity has been

created for the public interest in having judges who are “at liberty to exercise their

functions with independence and without fear of consequences.” Id. (quoting Huminski

v. Corsones, 396 F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even when the

judge is accused of acting maliciously or corruptly.” Id. (citation omitted). “Judicial

immunity is immunity from suit, not just immunity from the assessment of damages.” Id.

| (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The only two circumstances in

which judicial immunity does not apply is when he or she takes action ‘outside’ his or

her judicial capacity and when the judge takes action that, although judicial in nature, is

taken ‘in absence of jurisdiction.” Id. (quoting Mireles, 502 U.S. at 11-12). “Injunctive

relief against judges is also barred ‘unless a declaratory decree was violated or

declaratory relief was unavailable.” Id. (quoting Bobrowski v. Yonkers Courthouse, 777

Supp. 2d 692, 711 (S.D.N.Y. 2011).

Plaintiff names Town Justice Dorpfeld as a defendant for her actions taken in

relation to plaintiff's traffic violation case. See Compl. at 2-4. Plaintiff's allegations

concern conduct taken in Justice Dorpfeld’s capacity as a judge and as such, she is

entitled to judicial immunity. See Publicola v. Lomenzo, No. 1:21-CV-1303 (DNH), 2022

3 All unpublished decisions cited in this Report-Recommendation and Order have been provided to

plaintiff, unless noted otherwise.

WL 1027099, at *11 (N.D.N.Y. Apr. 5, 2022) (“Upon review, [the] plaintiff's § 1983

claims against Town Justice Lomenzo . . . must be dismissed . . . .”), appeal dismissed,

54 F.4th 108 (2d Cir. 2022); Burdick v. Town of Schroeppel, 717 F. App’x 92, 93 (2d Cir.

2018) (summary order) (affirming district court's conclusion that town justice was

entitled to judicial immunity). Thus, it is recommended that the claims against her be

dismissed.

Similarly, “[jJudicial immunity has been extended to court clerks and ‘others who

perform functions closely associated with the judicial process’ when they are performing

discretionary acts of a judicial nature which are essential to the judicial process,

especially the filing of court documents and managing a court’s calendar.” Encarnacion

v. Irby, No. 22-CV-1733 (ER), 2022 WL 1451403, at *3 (S.D.N.Y. May 9, 2022) (quoting

m| Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); citing Rodriguez v. Weprin, 116 F.3d

62, 66 (2d Cir. 1997) (extending judicial immunity to state court clerks who were ordered

by Appellate Division judges not to provide a litigant with documents and not to expand

the record on appeal)); Publicola, 2022 WL 1027099, at *11 (concluding that court

clerks were immune from suit); Argentieri v. Clerk of Ct. for Judge Kmiotek, 420 F.

Supp. 2d 162, 165 (W.D.N.Y. 2006) (“Inasmuch as [the] plaintiff claims that [the]

defendants violated his rights by refusing to acknowledge his motions or to schedule his

court proceedings, [the] defendants were assisting judges in performing essential

judicial functions. As a result, [the] plaintiff's claims are barred by absolute immunity.”).

Insofar as plaintiff alleges that Ms. Polizzi spoke to him about his case, his

license, and instructions he needed to follow, she was assisting with administration of

the case. Thus, she is entitled to absolutely immunity for such conduct. To the extent

plaintiff alleges that Ms. Polizzi made Officer Springsted threaten to arrest plaintiff,

plaintiff does not state a claim for relief. See Compl. at 4. He does not state what claim

he seeks to bring or on what grounds he is entitled to such relief. His conclusory

allegations are insufficient to state a claim for relief. See FED. R. Civ. P. 8(a)(2) (“A

pleading that states a claim for relief must contain . . .a short and plain statement of the

claim showing that the pleader is entitled to relief[.]”). Based on the foregoing, it is

recommended that plaintiffs complaint against Ms. Polizzi be dismissed.

Next, plaintiff names Commissioner Schroeder as a defendant. See Compl. at 2.

a state official, the Commissioner of the New York Department of Motor Vehicles is

protected by Eleventh Amendment sovereign immunity.” Boda v. Comm'r of N.Y. Motor

Vehicles, No. 12-CV-4098 (BMC), 2012 WL 3704713, at *1 (E.D.N.Y. Aug. 27, 2012);

m|see also Mullin v. P & R Educ. Servs., Inc., 942 F. Supp. 110, 114 (E.D.N.Y. 1996)

(“[T]o the extent that pro se plaintiff is alleging a suit against [DMV] Commissioner

Jackson, such suit is also barred by the doctrine of sovereign immunity.”); Russo v. City

of New York, No. 02-CV-369 (TPG), 2003 WL 1571707, at *1 (S.D.N.Y. Mar. 26, 2003)

(‘The p]laintiff cannot sue Martinez[, the former commissioner of the New York DMV,]

in his official capacity for damages because this would violate the Eleventh

AMendment.”); St. Martin v. Fiala, No. 11-CV-6490, 2011 WL 6761067, at *1 (W.D.N.Y.

Dec. 23, 2011) (“Accordingly, [the] plaintiff's action against defendant Fiala, in her

official capacity as Commissioner of the New York State Department of Motor Vehicles,

is actually a suit against the State of New York, and as such, must be dismissed as

barred by the Eleventh Amendment to the United States Constitution.”). Thus, it is

recommended that the complaint against Commissioner Schroeder in his official

10

capacity be dismissed with prejudice. See Feingold v. New York, 366 F.3d 138, 149 (2d

Cir. 2004) (“Section 1983 claim is clearly barred by the Eleventh Amendment because

the DMV is a state agency.”); see also Boda, 2012 WL 3704713, at *1.

To the extent Commissioner Schroeder could potentially be sued in his individual

capacity, “the personal involvement of defendants in alleged constitutional deprivations

Visa prerequisite to an award of damages under § 1983.” Victory v. Pataki, 814 F.3d 47,

67 (2d Cir. 2016) (quotation marks and citation omitted). “A plaintiff must ‘allege a

tangible connection between the acts of a defendant and the injuries suffered.” Salvana

v. New York State Dep’t of Corr. & Cmty. Supervision, 621 F. Supp. 3d 287, 311

(N.D.N.Y. 2022) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)),

reconsideration denied, 2022 WL 17083088 (N.D.N.Y. Nov. 18, 2022). “The Second

m| Circuit recently clarified that there is no special rule for supervisory liability and

explained that a plaintiff must plead and prove that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.” Id.

(quotation marks omitted) (quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir.

2020)). Plaintiff's complaint does not contain a single allegation against Commissioner

Schroeder to establish his personal involvement in a constitutional violation. See

generally Compl. Thus, it is recommended that the claims against Commissioner

Schroeder in his individual capacity be dismissed without prejudice.

B. Claims Against Officers Bartolucci and Springsted

Plaintiff seeks to sue Officer Bartolucci for pulling him over which he claims was

racially motivated. See Compl. at 3, 5. Plaintiff contends that he fixed any issues with

his inspection sticker and his driver's license was valid at the time he was pulled over,

11

but that the tickets have not been resolved. See id. at 4. This is despite an alleged trial

date of June 6, 2023. See id. at 5. Under Younger v. Harris, 401 U.S. 37 (1971), “it is

appropriate for a federal court to abstain from exercising jurisdiction where . . . (1) there

is an ongoing state proceeding; (2) an important state interest is implicated; and (3) the

plaintiff has an avenue open for review of constitutional claims in the state court.”

o McCulley v. N.Y.S. Dep’t of Env't Conservation, 593 F. Supp. 2d 422, 430 (N.D.N.Y.

2006) (citation omitted). “[S]o long as the constitutional claims of [plaintiffs] can be

determined in the state proceedings . . . the federal courts should abstain.” Spargo v.

New York State Comm’n on Jud. Conduct, 351 F.3d 65, 76-77 (2d Cir. 2003) (second

alteration in original) (quoting Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423, 434-35 (1982)). “[T]o avoid abstention, plaintiffs must demonstrate

| that state law bars the effective consideration of their constitutional claims.” Id. at 78.

“The relevant question under Younger is ‘whether the state’s procedural remedies could

provide the relief sought [not] . . . whether the state wi// provide’ the constitutional ruling

which the plaintiff seeks.” Id. at 79 (alteration in original) (citation omitted). “Appeals

from city courts and town and village justice courts in the Third and Fourth Departments

are taken to the appropriate County Court.” McKinney’s Forms Civil Practice Law and

m| Rules § 2:3. Additionally, “Article 78 proceedings provide an adequate remedy for those

who seek to challenge any action or inaction by an administrative agency or officers of

state or local government.” Chaney v. City of Albany, No. 6:16-CV-1185 (NAM/TWD),

2019 WL 3857995, at *13 (N.D.N.Y. Aug. 16, 2019) (citing Hourihan v. Lafferty, 58 F.

Supp. 2d 10, 14-15 (N.D.N.Y. 1999)).

12

Plaintiffs town court proceedings appear to be ongoing, they concern important

state interests in maintaining traffic laws, and plaintiff can appeal town court decisions to

county court or bring an Article 78 proceeding concerning DMV actions. See Medrano

v. Margiotta, No. 15-CV-3704 (JMA/ARL), 2017 WL 880964, at *6 (E.D.N.Y. Feb. 16,

2017) (“[T]he proceedings implicate New York’s important interest in enforcing, and

o determining the constitutionality of, its traffic laws.”), report and recommendation

adopted, 2017 WL 876293 (E.D.N.Y. Mar. 3, 2017); Paul v. New York State Dep't of

Motor Vehicles, No. 02-CV-8839 (AKH), 2003 WL 253065, at *1 (S.D.N.Y. Feb. 3, 2003)

(citation omitted) (“A state administrative proceeding is currently pending and, should

[the] plaintiff not prevail, he will be afforded an adequate opportunity to raise his

constitutional claims through an Article 78 proceeding. The issues involved in the

proceeding, having to do with whether or not the City can supersede certain of the

State’s traffic laws, implicate the State’s important interest in regulating intrastate traffic

and in the uniform enforcement of the state traffic laws ....”). Thus, this Court should

abstain from interfering in the town court proceedings at this juncture.

In any event, “[p]laintiff's Fourth Amendment claim is frivolous because a

dispositive defense exists on the face of the complaint.” Elmore v. Onondaga Cnty.

sheriffs, No. 5:23-CV-00508 (GTS/TWD), 2023 WL 4264778, at *4 (N.D.N.Y. June 29,

2023) (citing Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)).

“The constitutional reasonableness of a traffic stop does not depend on the actual

motivations of the individual officers involved—‘the Fourth Amendment’s concern with

reasonableness allows certain actions to be taken in certain circumstances, whatever

the subjective intent.” Id. (quoting Whren v. United States, 517 U.S. 806, 813-14

13

(1996)). “As a general matter, the decision to stop an automobile is reasonable where

the police have probable cause to believe that a traffic violation has occurred.” Whren,

517 U.S. at 810. In New York, “[n]o motor vehicle shall be operated or parked on the

public highways of this state unless a certificate or certificates of inspection, as required

by this article, is or are displayed upon the vehicle or affixed to the registration

°| certificate for the vehicle... .” N.Y. Veh. & Traf. Law § 306(b). Courts have concluded

that driving without a valid inspection sticker or an expired sticker establishes probable

cause for a traffic stop. See Sandstrom v. New York, No. 18-CV-01514, 2020 WL

3949344, at *15 (W.D.N.Y. Feb. 20, 2020) (“[T]he first traffic stop pertained to...

charges which [the p]laintiff admits was predicated by [the dJefendant[’s] [] observation

that the vehicle [the p]laintiff was driving displayed an expired inspection sticker,

establishing probable cause to stop [the p]laintiff for the traffic violation.”), report and

recommendation adopted sub nom. Sandstrom v. Chautauqua Cnty., 2020 WL 1861710

(W.D.N.Y. Apr. 13, 2020); Boone v. Post, No. 1:18-CV-01115 (EAW), 2021 WL 963591,

at *3 (W.D.N.Y. Mar. 15, 2021) (“[The djefendant had probable cause to believe that a

traffic violation—specifically, operation of a motor vehicle without a valid inspection—

had occurred at the time he initiated the traffic stop.”); People v. Shirley, 175 N.Y.S.3d

804, 805 (App. Div.) (“A New York State Trooper lawfully stopped defendant's vehicle

for having an expired inspection sticker.”), leave to appeal denied, 200 N.E.3d 104 (Ct.

App. 2022).

Plaintiff alleges that Officer Bartolucci pulled him over because of his “inspection

sticker.” Compl. at 3. After being pulled over, Officer Bartolucci charged him with

driving without his license and driving an uninspected motor vehicle. See id. Plaintiff

14

contends that he later remedied his inspection sticker. See id. at 4. Thus, insofar as his

inspection sticker was invalid or expired at the time he was pulled over, this constitutes

probable cause for the stop. See Sandstrom, 2020 WL 3949344, at *15; Boone, 2021

WL 963591, at *3. This is a “dispositive defense.” Jiminez v. City of Cohoes Police

Dep't, No. 5:22-CV-984 (MAD/TWD), 2022 WL 20054163, at *2 (N.D.N.Y. Nov. 7,

2022), report and recommendation adopted sub nom. Jimenez v. City of Cohoes, 2023

WL 3579794 (N.D.N.Y. May 22, 2023).

Next, “[t]lemporary detention of individuals during the stop of an automobile by

the police, even if only for a brief period and for a limited purpose, constitutes a seizure

of persons within the meaning of the Fourth Amendment.” United States v. Gomez, 877

F.3d 76, 86 (2d Cir. 2017) (citation omitted). “Like a Terry stop, the tolerable duration of

police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to

address the traffic violation that warranted the stop, and attend to related safety

concerns[.]’ Rodriguez v. United States, 575 U.S. 348, 354 (2015) (internal citations

omitted). “Because addressing the infraction is the purpose of the stop, it may ‘last no

longer than is necessary to effectuate th[at] purpose.” Id. (citation omitted).

Plaintiff alleges that after Officer Bartolucci stopped him, ticketed him, and

issued a summons for court. See Compl. at 3. There are no allegations that the stop

lasted any longer than necessary to obtain plaintiff's information and issue the citations

and summons. As such, plaintiff has not stated a constitutional claim concerning a

prolonged and unconstitutional seizure. See Rodriguez, 575 U.S. at 354. Thus, it is

recommended that any claims against Officer Bartolucci be dismissed.

15

Plaintiff also names Town of Coxsackie Police Officer Springsted as a defendant

because Officer Springsted called plaintiff and threatened to arrest him for harassment

for calling the Town of Coxsackie Court too much. See Compl. at 4-5. Plaintiff does not

state what claim he seeks to bring against Officer Springsted. See FED. R. Civ. P.

8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain

| statement of the claim showing that the pleader is entitled to relief[.]”). However,

liberally construed, plaintiffs complaint can be seen as raising a First Amendment

retaliation claim. To state a First Amendment retaliation claim, a plaintiff “must plausibly

allege that (1) he engaged in speech or activity that was protected by the First

Amendment; (2) he suffered an adverse employment action; and (3) a causal

connection existed between the adverse action and the protected activity.” Specht v.

m| City of New York, 15 F.4th 594, 600 (2d Cir. 2021) (citing Smith v. County of Suffolk,

776 F.3d 114, 118 (2d Cir. 2015) (per curiam)).

“The First Amendment, which applies to the states through the Fourteenth

Amendment, guarantees freedom of speech. This guarantee extends not only to the

right to speak, but also to the right to listen and receive information.” Kass v. City of

New York, 864 F.3d 200, 207 (2d Cir. 2017) (citing, inter alia, U.S. Const. amend. 1).

m| “The First Amendment, however, ‘does not guarantee the right to communicate . . . at all

times and places or in any manner that may be desired.” Id. (quoting Heffron v. Int'l

soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981)).

Some courts have concluded that threats can constitute adverse action. See

Treizon Lopez v. Semple, No. 3:18-CV-1907 (KAD), 2019 WL 2548136, at *5 (D. Conn.

June 20, 2019) (“A verbal threat to file a false [disciplinary report] against a prisoner

16

could amount to adverse action for purposes of a First Amendment retaliation claim..”);

Jennings v. Town of Stratford, 263 F. Supp. 3d 391, 403 (D. Conn. 2017) (“Viewing the

evidence in the light most favorable to [the] plaintiff, [the] threat with its potential career-

ending consequences was significant enough to deter a reasonable and similarly

situated person of ordinary firmness from exercising his constitutional right to free

| speech as [the] plaintiff did.”).

Other courts have concluded that threats may not constitute adverse action. See

Walker v. Senecal, No. 9:20-CV-0082 (AMN/CFH), 2023 WL 3051647, at *5-6 (N.D.N.Y.

Apr. 24, 2023) (collecting cases) (concluding that a correctional officer’s threats to an

incarcerated individual that he would “end up dead or in the Box” did not constitute

adverse action); Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 571 (2d

m| Cir. 2011) (concluding that a threat to walk away from a job was not a materially

adverse action because it “was hardly the kind of action that would dissuade a

reasonable employee from complaining.”). Generally, “[t]he line between a de minimis

verbal threat and a retaliatory adverse action hinges on the specificity and seriousness

of the words used.” Walker, 2023 WL 3051647, at *5 (citing Mateo v. Fischer, 682 F.

Supp. 2d 423, 434 (S.D.N.Y. 2010) (“The less direct and specific a threat, the less likely

| it will deter an inmate from exercising his First Amendment rights.”)). At this juncture,

the Court need not resolve whether Officer Springsted’s threat to arrest plaintiff

constitutes adverse action because plaintiff has failed to allege an actual injury.

“[T]he Second Circuit has held that the ‘the harm or injury required to allege a

First Amendment retaliation claim varies depending on the factual context.” Guillory v.

Upstate Univ. Police, No. 5:21-CV-1117 (GLS/ATB), 2021 WL 6274449, at *3 (N.D.N.Y.

17

Dec. 14, 2021) (citation omitted), report and recommendation adopted, 2022 WL 35926

(N.D.N.Y. Jan. 4, 2022); see also Zherka v. Amicone, 634 F.3d 642, 643 (2d Cir. 2011).

“Private citizens alleging retaliation for their criticism of public officials are generally

required to show that the alleged adverse action taken in retaliation resulted in actual

chilling of their exercise of their constitutional right to free speech.” Id. (citing, inter alia,

Vaher v. Town of Orangetown, 916 F. Supp. 2d 404, 430 (S.D.N.Y. 2013)). “In other

private citizen cases, however, the Second Circuit has dispensed with the ‘chilling’

requirement, where the retaliation is alleged to have caused an injury separate from any

chilling effect.” Id. (quoting Morales v. Valley Stream Union Free Sch. Dist. 24, No. 18-

CV-3897, 2019 WL 5874136, at *4 (E.D.N.Y. Aug. 14, 2019), report and

recommendation adopted, 2019 WL 4253975 (E.D.N.Y. Sept. 9, 2019)). The Supreme

m| Court has found the following “persuasive”: “in a suit for damages, the mere risk of

future harm, standing alone, cannot qualify as a concrete harm—at least unless the

exposure to the risk of future harm itself causes a separate concrete harm.”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210-11 (2021) (citation omitted)

Plaintiff does not allege that he suffered any harm from Officer Springsted’s

threat except that he was “under the fear and threat of jail.” Compl. at 4-5. Plaintiff

does not allege that the threats “chilled” his speech in any way. See Gill v. Pidlypchak,

389 F.3d 379, 383 (2d Cir. 2004) (explaining that whether conduct “chilled” a plaintiff's

speech “is only a problem where no harm independent of the First Amendment is

alleged. For there, the only injury is the chilling itself.”). Rather, he alleges that he “sent

out several correspondences to the Governor Kathy Hochul and the Chief Judge of

Green County and also filed a complaint with the Justice Department.” Id. at 5.

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Plaintiff's allegation of fear of future arrest, standing alone, is insufficient to state an

injury from a First Amendment violation. As such, it is recommended that any potential

claim against Officer Springsted be dismissed.

C. Cell Phone Policy

Plaintiff provides a single sentence concerning a cell phone policy. He states,

o “[t]he town still has a sign and illegal policy posted on the front door stating no

cellphones in a publicly funded building.” Compl. at 5. Plaintiff provides no other

allegations concerning this issue, nor does he state what claim he seeks to bring or the

relief he desires. As such, he has failed to follow Rule 8 of the Federal Rules of Civil

Procedure which requires enough information “to give fair notice of the claim being

asserted... .” Flores, 189 F.R.D. at 55. Thus, it is recommended that any potential

on this issue be dismissed. See Reeves v. New York, No. 1:21-CV-659

(LEK/DJS), 2021 WL 5095310, at *2 (N.D.N.Y. July 23, 2021) (“From a purely form

perspective, the Complaint fails to provide specific facts relevant to the claims or to

relate them to federal causes of action. This alone would be sufficient basis to dismiss

the Complaint upon initial review.”), report and recommendation adopted as modified,

2021 WL 3928950 (N.D.N.Y. Sept. 2, 2021).

tri

IV. Leave to Amend

Generally, “[a] pro se complaint should not be dismissed without the Court

granting leave to amend at least once when a liberal reading of the complaint gives any

indication that a valid claim might be stated.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.

19

2014) (citation omitted). “However, if the problems with a complaint are ‘substantive’

rather than the result of an ‘inadequately or inartfully pleaded’ complaint, an opportunity

to re-plead would be ‘futile’ and ‘should be denied.” Edwards v. Penix, 388 F. Supp. 3d

135, 144-45 (N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

2000)). Insofar as the Town of Coxsackie Court, Town Justice Dorpfeld, Clerk of the

! Court Polizzi, and Commissioner Schroeder are immune from suit, it is recommended

that the claims against them be dismissed with prejudice and without leave to amend.

As for the recommendation that claims against the police officers and Commissioner

Schroeder in his individual capacity be dismissed because of Younger abstention and

failure to state a claim, it is recommended that they be dismissed without prejudice and

with leave to amend.

I

V. Conclusion

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

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

GRANTED; and it is further

RECOMMENDED, that plaintiffs claims against the Town of Coxsackie Court,

Town Justice Dorpfeld, Court Clerk Polizzi, and Commissioner Schroeder in his official

capacity (Dkt. No. 1) be DISMISSED WITH PREJUDICE and WITHOUT LEAVE TO

AMEND); and it is further

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RECOMMENDED, that plaintiff's claims against Officer Bartolucci, Officer

Springsted, and Commissioner Schroeder in his individual capacity be DISMISSED

WITHOUT PREJUDICE and WITH LEAVE TO AMEND;’ and it is further

RECOMMENDED, that should the District Judge adopt this Report-

Recommendation and Order, plaintiff be given thirty (30) days from the date of the

Order adopting this Report-Recommendation and Order to file an amended complaint,

and if plaintiff does not file an amended complaint, it will be deemed as an

abandonment of any claims for which leave to replead has been granted and will result

in judgment being entered against plaintiff on these claims without further order by the

Court; and it is

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

Recommendation and Order in accordance with Local Rules.

IT IS SO ORDERED.

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

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

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

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

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

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

4 Any amended pleading supersedes and replaces a prior pleading in its entirety. In the event the District

Judge adopts the undersigned’s recommendation and plaintiff amends his complaint, plaintiff is advised

that any amended pleading cannot incorporate a prior pleading or its exhibits by reference. An amended

pleading must establish this Court’s jurisdiction and state a claim for relief against each named defendant

for which leave to replead was granted according to Rules 8 and 10 of the Federal Rules of Civil

Procedure.

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

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

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

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Dated: September 27, 2023

Albany, New York

Christian F. Hummel

U.S. Magistrate Judge

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

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

holiday. Id. § 6(a)(1)(c).

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