Dees v. Zurlo

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JENNIFER LYNN DEES and

ETHAN DAVIS SMITH,

Plaintiffs,

1:24-CV-0001

v. (MAD/DJS)

MICHAEL ZURLO, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

JENNIFER LYNN DEES

Pro se Plaintiff

Clifton Park, New York 12065

ETHAN DAVIS SMITH

Pro se Plaintiff

Clifton Park, New York 12065

DANIEL J. STEWART

United States Magistrate Judge

REPORT RECOMMENDATION and ORDER

I. INTRODUCTION

The Clerk has sent to the Court a Complaint filed by pro se Plaintiffs Jennifer

Lynn Dees and Ethan Davis Smith. Dkt. No. 1, Compl. Plaintiffs have not paid the

filing fee, but have submitted Motions to Proceed In Forma Pauperis. Dkt. Nos. 2 & 3.

Also pending are requests for leave to file electronically. Dkt. Nos. 4 & 5. For the

reasons outlined below, the Court recommends that the Complaint be dismissed in its

entirety. Given that recommended disposition, the Motions for leave to file

electronically are denied.

In their 170-page pro se Complaint, Plaintiffs Jennifer Lynn Dees and Ethan

Davis Smith collectively assert 30 federal and state claims against 53 individual and

municipal Defendants. Compl. In sum, Plaintiffs make conclusory claims against

virtually every judge, prosecutor, social service worker, private attorney, private party,

witness, or medical professional that was involved in a long-running custody and/or

support dispute between Plaintiff Ethan Smith1 and Defendant Veronica Smith. The

matter is presently being litigated in Saratoga County Supreme and/or Family Court.

The Complaint alleges federal RICO claims (claims 1-2); claims under 42 U.S.C. §§

1983 & 1985, alleging violations of procedural due process, substantive due process,

First Amendment retaliation, equal protection, abuse of process, Brady violation, failure

to intervene, and a claim under Monell, (claims 3-14); a claim under the American with

Disabilities Act (claim 15); and numerous state law claims (claims 16-30). Plaintiff’s

summary of the allegations contained in the Complaint is as follows:

The plaintiffs allege a conspiracy to violate both state and federal

constitutional rights, encompassing acts of deprivation of rights,

misconduct, negligence, collusion, malpractice, and discrimination,

extending to claims of wrongful death. Furthermore, the plaintiffs assert

instances of malicious prosecution, selective prosecution, due process

violations, failure to intercede, and point to issues of supervisory and

municipal liability, alongside infringements under (RICO). The

defendants engaged in fraudulent practices, illicit negotiations, and

extortion tactics to enforce compliance with illegal orders. The Plaintiffs

have been targeted with false accusations, such as felony theft involving

1 While Jennifer Lynn Dees was not a party to this legal proceeding, it is alleged that she was involved in certain

aspects of the litigation and was impacted by the issuance of various protective orders. See, e.g., Compl. at p. 10.

significant assets and unfounded suspension of driving privileges,

systematically orchestrated to undermine their personal integrity,

professional standing, and social relationships. The severity and

complexity of these allegations have led the plaintiffs to call for federal

intervention, arguing that the magnitude of the corruption and misconduct

is beyond the purview of state-level resolution.

Moreover, the plaintiffs allege that the defendants have actively

interfered with court proceedings, engaged in witness tampering, and

committed acts of obstruction of justice, perjury, and witness intimidation.

They argue that these actions are part of a concerted effort by the

defendants to destroy their reputations, careers, familial bonds, religious

affiliations, and friendships, pointing to a deliberate strategy aimed at

collapsing their lives in a comprehensive and destructive manner.

Compl. at ¶¶ 5-6.

The present action, therefore, appears primarily an attempt to have the federal

courts intervene in a pending state court matter. The sheer volume of the Complaint,

coupled with its wholly conclusory allegations of a far-reaching conspiracy seeking to

make every Defendant responsible for all acts of perceived misconduct by everyone

else, violates the basic notice and “short and plain” requirements of FED R. CIV. PROC.

8(a). Moreover, such a pleading goes against a core §1983 principle that defendants are

generally only responsible for their own acts. Further, the Complaint ignores the fact

that a large portion of the named Defendants are either absolutely immune from suit or

are not state actors subject to suit under § 1983. Finally, insofar as the Plaintiffs are

looking to overturn decisions in an ongoing divorce, support, and custody proceeding,

the Court does not have jurisdiction to hear the matter, or, if it does, it should abstain

from hearing it. For the reasons that follow, therefore, the Court recommends that

Plaintiffs’ Complaint be dismissed.

II. Factual Statement and Procedural History

Plaintiff Ethan Smith and Defendant Veronica Smith were married and have

three children together. The Smiths separated and, on or about June of 2020, a divorce

proceeding was commenced. Compl. at ¶ 113. The matter was assigned to Judge Paul

Pelagalli, who was a Family Court Judge in Saratoga County but was, at the time, an

acting Supreme Court Judge. As part of that proceeding issues involving custody and

support were litigated. The parties were represented by counsel, and the three children

also had assigned counsel. The Court issued various orders and decrees in connection

with the proceeding, including orders of maintenance and support. Plaintiffs disagree

with the orders and rulings that were issued by the Court. Plaintiffs maintain that

Defendant Veronica Smith submitted false financial information regarding both her

assets, as well as Plaintiff Smith’s finances, resulting in a fraudulent support order. This

caused significant financial difficulty, resulting in negative actions being taken against

Plaintiff Smith for being in arrears of his support obligations, including having his

license suspended. Plaintiff Smith alleges that the support order was issued without due

process or a sufficient hearing.

Plaintiffs also alleged that numerous orders of protection, or temporary orders of

protection, were erroneously issued against them by either Family Court or Supreme

Court. Compl. at ¶ 138. Conversely, their request for orders of protection were not

granted, or were delayed, and this represented an unequal application of the law as to

them. Compl. at ¶¶ 73, 180. Further, Court hearings were held, during which time it is

alleged that the involved attorneys improperly advocated for their clients, or in the case

of Plaintiff Smith, did not represent him with the required level of skill. Compl. at ¶¶

49, 61, 65, & 85. Witnesses allegedly lied, or obfuscated, or covered up for other

witnesses. Compl. at ¶¶ 136, 164, 348. The Court itself was biased against the Plaintiff

Ethan Smith and did not treat him properly. Compl. at ¶¶ 39, 308. Ultimately a divorce

decree was granted on or about August 31, 2023, but Plaintiff Smith appears to allege

that the decree was improper because there was no jury trial. Comp. at ¶¶ 155 & 170

During the same time period, it is alleged that the Defendant social service

workers and school officials did not properly investigate claims of abuse and neglect by

Defendant Veronica Smith, or her significant other, against the Smith children. Compl.

at ¶¶ 56, 76. It is alleged that police officers did not provide the level of protection that

the Plaintiffs were entitled to, and failed to intervene in the conduct of private parties

and/or Defendant Smith. Compl. at ¶¶ 264-266. The alleged failure of public officials

to protect the Plaintiffs resulted in severe emotional stress, which in turn is said to be

the cause of Plaintiff Dees having a miscarriage. Compl. at ¶ 53.

III. DISCUSSION

A. Standard of Review

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

plaintiff seeks to proceed in forma pauperis, “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).

Thus, it is a court’s responsibility to determine that a plaintiff may properly maintain his

complaint before permitting him to proceed with his action.

In reviewing a pro se complaint, this Court has a duty to show liberality toward

pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), 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) (citations omitted). Therefore, a court should not dismiss a

complaint if the plaintiffs have 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 Bell Atl. Corp. v. Twombly, 550 U.S.

at 556). 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.” Id. “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[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)). Furthermore, Federal

Rule of Civil Procedure 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl.

Corp. v. 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). Allegations that “are so vague as to fail to

give the defendants adequate notice of the claims against them” are subject to dismissal.

Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009).

“Ordinarily, a court should not dismiss a complaint filed by a pro se litigant

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.’” Bruce v. Tompkins Cnty.

Dep’t of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015)

(quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991)). However, where the

grounds for dismissal offer no basis for curing the defects in the pleading, dismissal

with prejudice is appropriate. Kunz v. Brazill, 2015 WL 792096, at *3 (N.D.N.Y. Feb.

25, 2015).

B. Jurisdiction

It is well settled that a federal court, whether trial or appellate, is obligated to

notice on its own motion the basis for its jurisdiction. City of Kenosha, Wisconsin v.

Bruno, 412 U.S. 507, 512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 F.2d 591,

605 (2d Cir. 1988) (challenge to subject matter jurisdiction cannot be waived); 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.”). In light of the

Plaintiffs pro se status, the Court will sua sponte assess whether subject matter

jurisdiction is present in this case. LeClair v. Vinson, 2019 WL 1300547, at *4

(N.D.N.Y. Mar. 21, 2019), report and recommendation adopted, 2019 WL 2723478

(N.D.N.Y. July 1, 2019).

In the present case, Plaintiffs cite to violations of federal constitutional law, and

seeks redress under the civil rights statute, 42 U.S.C. §§ 1983 & 1985, the American

with Disabilities Act, and 18 U.S.C. §1964(a). The federal courts would normally have

original jurisdiction under 28 U.S.C. § 1331 to hear such a case; however, because of

the precise allegations of the claims, the Court must also consider two additional well

established jurisdictional rules.

1. The Rooker-Feldman Doctrine

A dismissal pursuant to the Rooker-Feldman doctrine is for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Remy v. New York State

Dep’t of Tax’n and Fin., 507 F. App’x 16, 18 (2d Cir. 2013). This doctrine divests the

federal court of jurisdiction to consider actions that “seek to overturn state court

judgments.” Fernandez v. Turetsky, 2014 WL 5823116, at *3 (E.D.N.Y. Nov. 7, 2014)

(citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The

doctrine also bars the federal court from considering claims that are “inextricably

intertwined” with a prior state court determination. Id. (quoting Johnson v. Smithsonian

Inst., 189 F.3d 180, 185 (2d Cir. 1999)).

There are four requirements to the application of Rooker-Feldman: (1) “the

federal-court plaintiff must have lost in state court”; (2) the plaintiff’s injuries must

have been caused by a state court judgment; (3) the plaintiff must be asking the federal

court to review and reject the state court’s judgment; and (4) the state-court judgment

must have been rendered prior to filing the federal court action. Hoblock v. Albany Cty.

Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005). A challenge to “the validity or

enforcement of [a] child support order itself” constitutes an injury “caused by a state

court judgment.” Sykes v. Bank of Am., 723 F.3d 399, 404 (2d Cir. 2013); Davis v.

Westchester Cnty. Fam. Ct., 2017 WL 4311039, at *8 (S.D.N.Y. Sept. 26, 2017)

(“Courts have repeatedly invoked Rooker-Feldman in cases in which plaintiffs

challenge family court decrees setting child support arrears.”). In the present case,

Plaintiff Smith seeks to overturn various orders issued by the state courts, having been

unsuccessful in doing so by way of their Article 78 action, and accordingly such claims

are effectively barred by Rooker-Feldman. Errato v. Seder, et al, 2024 WL 726880, at

*2 (2d Cir. Feb. 22, 2024); Sims V. Kaufman, 2024 WL 757338, at *4 (S.D.N.Y. Feb.

14, 2024) (“Inasmuch as Plaintiff criticizes any final child support decision of the New

York Family Court, Bronx County, in an effort to request that this Court overturn that

final decision, the Rooker-Feldman doctrine bars this Court from granting Plaintiff such

relief.”).2

2 Dees, who was not a party to those proceedings, would clearly lack standing to assert claims challenging the

outcome of them.

2. Younger Abstention

In Younger v. Harris, the Supreme Court held that federal courts must abstain

from exercising jurisdiction over claims, seeking declaratory or injunctive relief, that

implicate ongoing state proceedings. 401 U.S. 37, 43-44 (1971). The Supreme Court

held that when there is a parallel criminal proceeding in state court, the federal court

must refrain from enjoining the state prosecution. Id. Younger abstention is triggered

only by three categories of state court proceedings: (1) state criminal prosecutions; (2)

“civil proceedings that are akin to criminal proceedings”; and (3) civil proceedings that

“implicate a State’s interest in enforcing the orders and judgments of its courts.” Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013). In Sprint, the Court used state-

initiated custody proceedings as an example of civil proceedings which are akin to

criminal proceedings. Id. at 79 (citing Moore v. Sims, 442 U.S. 415, 419-420 (1979)

(state-initiated proceeding to gain custody of children allegedly abused by their

parents)); see also Davis v. Baldwin, 594 F. App’x 49, 51 (2d Cir. 2015) (same).

While it is true that Younger abstention does not apply to claims for monetary

damages, such as the present one, the doctrine does dictate that “a stay of the action

pending resolution of the state proceeding may be appropriate.” Kirschner v. Klemons,

225 F.3d 227, 238 (2d Cir. 2000). This is particularly the case in matters involving

divorce, alimony, and child custody. This “domestic relations” abstention is based upon

a policy dictating that the states have traditionally adjudicated marital and child custody

disputes, developing “competence and expertise in adjudicating such matters, which the

federal courts lack.” Thomas v. N.Y. City, 814 F. Supp. 1139, 1146 (E.D.N.Y. 1993); see

also Am. Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990) (When a case calls for a

federal court to interpret state domestic relations law or “immerse itself in domestic

relations matters,” the court must abstain from proceeding with the case due to the state

courts’ “greater interest and expertise” in that field.). Therefore, “to the extent that

Plaintiff is asking the Court to grant injunctive and declaratory relief with respect to

ongoing Family Court and Supreme Court proceedings, including any post-judgment

proceedings, the Court must abstain from hearing those claims under the Younger

abstention doctrine.” Stampfl v. Eisenpress, 2024 WL 37075, at *4 (S.D.N.Y. Jan. 3,

2024).

C. RICO Claims

Plaintiffs’ first two federal claims are that Defendants allegedly violated, and

conspired to violate, provisions of the Racketeering Influenced and Corrupt

Organizations (“RICO”) Act, 18 U.S.C. § 1962 et seq. As noted by the Second Circuit,

“[t]o establish a RICO claim, a plaintiff must show: (1) a violation of ...18 U.S.C. §

1962; (2) an injury to business or property; and (3) that the injury was caused by the

violation of Section 1962.” Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir.

2013) (quoting DeFalco v. Bernas, 244 F.3d 286, 305 (2d Cir. 2001)). To establish a

violation of section 1962, a plaintiff must show “(1) conduct (2) of an enterprise (3)

through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S.

479, 496 (1985). “Racketeering activity,” in turn, is defined to include any “act”

indictable under various specified federal statutes, including the mail and wire fraud

statutes and the obstruction of justice statute. See 18 U.S.C. § 1961(1) (defining

“racketeering activity” to include offenses indictable under 18 U.S.C. §§ 1341 (relating

to mail fraud), 1343 (relating to wire fraud), and 1503 (relating to obstruction of

justice)). A “pattern of racketeering activity” is defined by the statute as “at least two

acts of racketeering activity” within a ten-year period. 18 U.S.C. § 1961(5).

Courts generally approach RICO claims with a cautious eye, and with the

understanding that Congress’ goal in enacting RICO was to prevent legitimate

businesses from becoming infiltrated by organized crime. See United States v. Porcelli,

865 F.2d 1352, 1362 (2d Cir. 1989). “Because the mere assertion of a RICO claim has

an almost inevitable stigmatizing effect on those named as defendants, courts should

strive to flush out frivolous RICO allegations at an early stage of the litigation.” Schmidt

v. Fleet Bank, 16 F.Supp.2d 340, 346 (S.D.N.Y. 1998) (internal quotation marks

omitted).

As noted above, the present case outlines a contentious and lengthy custody and

support dispute, and the Court is not unmindful of the stress that results from such

proceedings. However, to allow the racketeering law to be utilized to create parallel

federal litigation because a party is dissatisfied with the outcome of a pending

family/supreme court matter, is both unjustified and unwise.

This principle was articulated by the Second Circuit in the case of Kim v. Kimm,

884 F.3d 98 (2d Cir. 2018). The Kim plaintiff was a restaurant owner and a defendant in

a trademark infringement suit. After the trademark case was dismissed at the summary

judgment stage, the plaintiff sued his opponent under RICO, alleging that the initial

lawsuit was simply an extortion attempt. Id. at 101. The plaintiff further claimed that

false legal documents were used to mislead the court, all of which constituted both mail

fraud and a pattern of racketeering activity. Id. The District Court dismissed the

lawsuit for failure to state a claim, noting that conduct during the course of litigation

cannot constitute predicate acts for purposes of RICO. Id. at 99. The Second Circuit

affirmed, concluding that “the allegations of frivolous, fraudulent, or baseless litigation

activities—without more—cannot constitute a RICO predicate act.” Id. at 104. The

Second Circuit further set forth the following basis for this ruling:

[T]here are compelling policy arguments supporting this rule. First,

“[i]f litigation activity were adequate to state a claim under RICO, every

unsuccessful lawsuit could spawn a retaliatory action,” which “would

inundate the federal courts with procedurally complex RICO pleadings.”

Dist. Ct. Op. at 10–11, Appellant App’x at 266–67; see also Nora F.

Engstrom, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115

MICH. L. REV. 639, 696 (2017) (permitting RICO suits based on prior

litigation activities would “engender wasteful satellite litigation”).

Furthermore, “permitting such claims would erode the principles

undergirding the doctrines of res judicata and collateral estoppel, as such

claims frequently call into question the validity of documents presented in

the underlying litigation as well as the judicial decisions that relied upon

them.” Dist. Ct. Op. at 11, Appellant App’x at 267; see also Gabovitch [ v.

Shear], 1995 WL 697319, at *3, 1995 U.S. App. LEXIS 32856 [ (1st Cir.

1995) ] (“In essence, simply by alleging that defendants' litigation stance

in the state court case was ‘fraudulent,’ plaintiff is insisting upon a right to

relitigate that entire case in federal court.... The RICO statute obviously

was not meant to endorse any such occurrence.”). Moreover, endorsing

this interpretation of RICO “would chill litigants and lawyers and frustrate

the well-established public policy goal of maintaining open access to the

courts” because “any litigant’s or attorney’s pleading and correspondence

in an unsuccessful lawsuit could lead to drastic RICO liability.” Dist. Ct.

Op. at 11, Appellant App'x at 267 (quoting Curtis & Assocs., 758

F.Supp.2d at 173); see also Engel v. CBS, Inc., 182 F.3d 124, 129 (2d Cir.

1999) (noting the “strong public policy of open access to the courts for all

parties and [the need] to avoid ad infinitum [litigation] with each party

claiming that the opponent’s previous action was malicious and meritless”

(internal quotation marks and citations omitted) (second brackets in

original) ).

Id.

For the reasons cogently summarized in Kim, the present RICO allegation,

arising out of the state court litigation, fails to set forth a cognizable RICO claim.

D. Claims Under 42 U.S.C. §§ 1983 & 1985

As to Plaintiffs claims under the Civil Rights Act, see Compl. at ¶¶ 207-298

(claims 3-14), an initial review discloses that these claims are also barred by principles

of immunity, as well as the failure of the Plaintiffs to allege the essential elements of

such claims.

1. Absolute Judicial Immunity

The claims under 42 U.S.C. §§1983 and 1985 against the judges who are, or had

been, involved in the state court case, are barred by the doctrine of absolute judicial

immunity. Judicial Immunity is applicable to conduct taken by the court as part of its

judicial power and authority, and its absolute protection extends to all judicial acts

except those performed in the clear absence of all jurisdiction. See Pierson v. Ray, 386

U.S. 547, 554 (1967). The Supreme Court has emphasized that the scope of a judge’s

jurisdiction must be construed broadly. Stump v. Sparkman, 435 U.S. 349, 356-57

(1978) (citing Bradley v. Fisher, 80 U.S. 335, 351 (1871)). Generally, “acts arising out

of, or related to, individual cases before [a] judge are considered judicial in nature.”

Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith or

malice cannot overcome judicial immunity.” Id. at 209. This is because “[w]ithout

insulation from liability, judges would be subject to harassment and intimidation....”

Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).

Allegations of unconstitutional conduct are made in the Complaint against the

following judicial officers, members of their staff, and court-appointed experts: acting

Saratoga Supreme Court Judge Paul Pelagalli; Saratoga Supreme Court Judges John

Ellis and Diane Freestone; City Court Judge Jeffrey Waite; Saratoga County Court

Judge James Murphy; Administrative Judge for the Fourth Judicial District Judge Felix

Catena; Appellate Division Justices Elizabeth Garry and Christine Clark; Court

Attorney Karla Conway; and Court-appointed experts Jaqueline Bashkoff and Dr. Mary

O’Conner. A summary of their conduct is important in deciding the validity of those

allegations.

Acting Saratoga County Supreme Court Judge Pelagalli was initially assigned to

the Smith v. Smith case. The claims against Judge Pelagalli arise out of acts taken in his

judicial capacity. These acts include the October 20, 2020, issuance of an Order of

maintenance and child support, and then reiterating that Order on April 27, 2022, all

allegedly done without a proper hearing or due process. Compl. at ¶ 119. Further,

Plaintiffs allege Defendant Pelagalli misused his judicial power by negligently or

inappropriately issuing, or failing to issue, orders of protection and/or temporary orders

of protection; improperly handling proceedings before him, including but not limited to,

not providing Plaintiff Smith with a copy of an evaluation by Dr. Bashkoff of the

children, excluding Plaintiff Dees from the courtroom, not allowing Dees to testify at a

proceeding, threatening to hold Dees in contempt, not signing certain trial subpoenas,

and having ex parte communications with witnesses; labeling Plaintiff Smith in a

decision as a “narcissist” without having a medical degree; imposing an order of

protection that would not allow Plaintiff Dees to be present during overnight visitation

by Plaintiff Smith’s children, which according to Plaintiffs, led to a miscarriage; and

granting a divorce decree on August 31, 2023 without a jury trial. Compl at ¶¶ 31-33,

138-171.

John Ellis is a Saratoga County Supreme Court Justice and replaced Judge

Pelagalli on the Smith v. Smith matter in October 2023. Compl. at ¶ 38. According to

the Plaintiffs, Judge Ellis has mirrored the approach of the previous judge, neglected

evidence of fraud, child abuse, and assault, and has not taken the time to rectify the

situation to the Plaintiffs’ satisfaction. Compl. at ¶¶ 38-39.

Judge Jeffrey Wait is a Saratoga Springs City Court Judge and Acting County

Court Judge. Plaintiffs’ Complaint against Judge Wait relates to his alleged bias against

the Plaintiffs; the failure to provide adequate safeguards following a November 8, 2023,

assault by Defendant Smith; issuing an illegal stay-away order; declining to recuse

himself; failing to issue an order of protection in the Plaintiffs’ favor, which is said to

have contributed to the November 8, 2023 assault; improperly dismissing Plaintiff

Smith’s custody petition; presiding over a December 19, 2023, court proceeding where

there was misconduct, including having Plaintiff Dee (Plaintiff Smith’s alleged in-court

ADA notetaker) leave the courtroom due to a court-mandated parenting schedule; and,

overall, abusing his judicial authority. Compl. at ¶¶ 34, 36, 37, 176, 179, 185.

The Hon. Felix Catena is the Administrative Judge for the Fourth Judicial

Department and is sued in that position. According to Plaintiffs, Judge Catena is in

charge of assigning judges in the Saratoga Courts and, despite being notified on 30

occasions regarding the conduct of judges under his supervision, he failed to take

appropriate action, or to conduct independent investigations to ascertain the presence of

fraud. Compl. at ¶¶ 24, 43, 45, 145, 306.

Supreme Court Judge Dianne Freestone was assigned to handle the Plaintiffs’

Article 78 Petition challenging the conduct that occurred during the ongoing divorce

and custody proceedings, and she is sued because she “prematurely” dismissed the

Plaintiffs’ Article 78 proceeding. Compl. at ¶ 44. Similarly, Elizabeth Garry, Chief

Justice of the Appellate Division, and Christine Clark, Associate Justice of the

Appellate Division, are also sued for upholding the dismissal of the Article 78

proceeding. Id. See Smith v. Pelagalli, 2023 WL 6801376 (3d Dep’t 2023). An appeal

of that decision was dismissed by the New York State Court of Appeals. Smith v.

Pelagalli, 40 N.Y.3d 1060 (2023).

James Murphy holds the position of County Court Judge for Saratoga County.

The Complaint alleges that Judge Murphy, “in his capacity as an appellate judge for

Saratoga, failed to fulfill his judicial responsibilities by ignoring crucial evidence. . .”

Compl. at ¶ 46. As a result, Plaintiff Smith is said to now face trial on fraudulent

charges. Id.

As summarized above, the present Complaint against the judges relates to alleged

misconduct or improper decisions by Family Court, Supreme Court, and County Court

Judges in Saratoga County, as well as members of the Appellate Division, Third

Judicial Department. See Compl. This misconduct includes how those judges

conducted their proceedings and hearings; issued or failed to issue orders of protection;

analyzed legal matters and drafted their decisions and orders; controlled discovery;

assigned counsel and experts; and generally handled cases. That conduct is, without

doubt, judicial in nature. The Plaintiffs’ arguments that the Justices were wrong in their

conclusions because they were biased, misinformed, malicious, or incompetent, simply

miss the mark. In construing such immunity, the reviewing courts look to the nature of

the act, not the act itself. “If judicial immunity means anything, it means that a judge

will not be deprived of immunity because the action he took was in error ... or was in

excess of his authority. Mireles v. Waco, 502 U.S. 9, 12-13 (1991) (internal quotations

and citations omitted). Accordingly, courts must evaluate the nature and function of the

act, rather than the act itself. Id.

Finally, as amended in 1996, 42 U.S.C. § 1983 provides that “in any action

brought against a judicial officer for an act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was violated,

or declaratory relief was unavailable.” 42 U.S.C.S. § 1983. There is no allegation in the

Complaint regarding the violation or unavailability of such a declaratory decree.

For these reasons, Plaintiffs claims against the above-named Judicial Defendants

are dismissed.3 See Caroselli v. Curci, 371 F. App’x 199, 202 (2d Cir. 2010) (summary

order) (“With respect to the state court judges, insofar as [the plaintiff] seeks money

damages, such claims are barred by absolute judicial immunity. Insofar as [the plaintiff]

3 The Judicial officers named in this suit are also protected under the doctrine of sovereign immunity. In Gollomp

v. Spitzer, the Court held that the New York Unified Court System is an “arm of the State” and affirmed the

dismissal of a § 1983 claim against a judge under sovereign immunity. 568 F.3d 355, 365–68 (2d Cir. 2009). That

holding was just recently reaffirmed by the Second Circuit. Bythewood v. New York, 2023 WL 6152796, at *1 (2d

Cir. Sept. 21, 2023) (“The New York State Unified Court System is “unquestionably an arm of the state” that

shares in New York's immunity to suit.”).

seeks injunctive relief against the state court judges, such relief is statutorily barred.”

(citations omitted)).

Next, Plaintiffs sue Karla Conway, Judge Pelagalli’s court attorney, who is said

to have participated with the Judge in the issuance of fraudulent orders, defamed

Plaintiffs in and out of court, falsified statements in Court, and generally was biased.

Compl. at ¶¶ 24, 40, 41, 42, 119, 122. These litigation related claims fail because

absolute judicial immunity, as discussed above, also applies to a judicial law clerk, who

is considered at law to be an extension of the judge at whose pleasure she serves. Oliva

v. Heller, 839 F.2d 37, 40 (2d Cir. 1988).

2. Quasi-Judicial Immunity

Dr. Mary O’Connor and Dr. Jacquelyn Bashkoff were appointed by Judge

Pelagalli to perform psychological assessments regarding the Smith Family. Compl. at

¶ 91. Plaintiffs take issue with the O’Connor and Bashkoff Reports and maintain that

they are not impartial evaluations and contributed to the “wrongful separation of the

children from Plaintiff [Smith]”. Compl. at ¶¶ 91, 95, 96. Plaintiff also maintains that

the fact that Bashkoff did not finish her report and did not testify, “hints at collusion.”

Compl. at ¶ 98.

The claims against Drs. O’Conner and Bashkoff are likewise barred by quasi-

judicial immunity. “[A]bsolute immunity may attach to non-judicial officers and

employees where the individual serves as an arm of the court or where the individual

conducts activities that are inexorably connected with the execution of court procedures

and are analogous to judicial action.” McKnight v. Middleton, 699 F. Supp. 2d 507, 527

(E.D.N.Y. 2010); see Cherner v. Westchester Jewish Cmty. Servs., Inc., 2022 WL

17817882, at *1 (2d Cir. Dec. 20, 2022) (family court ordered Defendants to conduct a

forensic evaluation and to prepare a report to aid that court's decision in a child custody

suit. These acts are “integrally related to an ongoing judicial proceeding” and therefore

entitled to quasi-judicial immunity). The fact that Dr. Bashkoff did not ultimately

testify does not affect her entitlement to immunity. Di Costanzo v. Henriksen, 1995 WL

447766, at *2 (S.D.N.Y. July 28, 1995) (“The doctrine of witness immunity bars an

action against [clinical psychologist and medical doctor who provided medical and

psychological evaluations to the court] even if they did not formally testify as witnesses

in the proceedings, since their role in the proceedings would have been essentially that

of witnesses.”).

A large majority of the Plaintiff’s allegations are leveled against various private

attorneys who represented parties in the divorce, custody, and support matters. This

group includes the attorneys who were appointed to represent the interest of the

children; Jessica Vinson of Vella Carbone, LLP; Denise Rest-Tobin; Elena Tastensen;

and Heather Corey-Mongue. Compl. at ¶ 48. Courts in this circuit have concluded that

such court appointed counsel are entitled to quasi-judicial immunity from suit.

McKnight v. Middleton, 699 F. Supp. 2d 507, 528 (E.D.N.Y. 2010), aff’d, 434 F. App'x

32 (2d Cir. 2011); Yapi v. Kondratyeva, 340 F. App’x 683, 684-85 (2d Cir. 2009) (law

guardian entitled to quasi-judicial immunity when acting as an arm of the court); see

also Zavalidroga v. Hester, 2020 WL 210812, at *8 (N.D.N.Y. Jan. 14, 2020), report

and recommendation adopted, 2020 WL 633291 (N.D.N.Y. Feb. 11, 2020).

3. Government Attorney Immunity

The Court must also dismiss Plaintiffs’ section 1983 & 1985 claims for damages

against the government attorneys who were representing governmental agencies at the

proceedings. Samuel Maxwell and Emily Williams were Deputy District Attorney’s

involved in the custody and support case. Compl. at ¶ 14. It is generally alleged that

they acted in unison with all other Defendants to submit deceptive and counterfeit

affidavits with various courts and clerks. Compl. at ¶ 361. As to Defendant Williams,

it is specifically alleged that there may be questions regarding her adherence to

discovery obligations, including Brady obligations. Compl. at ¶¶ 186, 291.

Michelle Granger and Michael Hartnett were Saratoga County attorneys, and

provided guidance to the Saratoga child support enforcement agency, and in that role

they are alleged to have neglected numerous fraud complaints regarding Defendant

Veronica Smith and failed to investigate and correct wrongdoing. Compl. at ¶ 71, 215,

268.

Government attorneys are immune from suit under section 1983 for damages

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

the judicial process.” Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006). This

immunity applies to government attorneys who perform functions “‘that can fairly be

characterized as closely associated with the conduct of litigation or potential litigation’

in civil suits.” Id. (quoting Barrett v. United States, 798 F.2d 565, 572 (2d Cir. 1986));

see also Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir. 2010) (“[A]n attorney for a county

Department of Social Services who ‘initiates and prosecutes child protective orders and

represents the interests of the Department and the County in Family Court’ is entitled to

absolute immunity.”).

Moreover, “the common law precedents also extend absolute immunity to

[government attorneys] participating in the administrative process.” Bloom v. New York

State Comm'r of Health, 573 F. Supp. 2d 732, 740 (E.D.N.Y. 2004) (citing Butz v.

Economou, 438 U.S. 478, 509-10 (1978).

4. Witness Immunity

Several Defendants are being sued based upon their testimony at various court

hearings, or in connection with testimony provided to the Court via some other method.

With regard to Deputy Jillian Knox, for example, Plaintiffs allege that she testified at a

court hearing on November 16, 2023, but her testimony was inconsistent, and she may

have potentially coordinated her story with others. Compl. at ¶¶ 186, 190. Defendant

Veronica Smith is said to have testified and have provided false testimony in legal

proceedings and introduced “misleading” evidence. Compl. at ¶¶ 100, 127. Defendant

Tedesco testified and was cross examined by Plaintiff, Compl. at ¶¶ 187-188, and while

Defendant Bashkoff did not testify, she did submit reports to the state court for its

review and consideration, Compl. at ¶ 98. Further, a report and/or psychological

evaluation prepared by Dr. O’Connor was utilized as the basis of the proceedings

against Plaintiff, and she was cross examined in Court. Compl. at ¶¶ 93, 98, 150.

Finally, the Complaint indicates that Attorney Tobin testified. Compl. at ¶ 162.

The Court must also dismiss all of Plaintiffs’ §§ 1983 & 1985 claims for

damages that arise from any of the Defendants’ testimony, either in person or by

affidavit or other means, in the County Court or the Family Court proceedings. Grand

jury and trial court witnesses are absolutely immune from liability under section 1983

for damages arising from their testimony, even if that testimony was false. See Rehberg

v. Paulk, 566 U.S. 356, 366-69 (2012); Briscoe v. LaHue, 460 U.S. 325 (1983). The

Supreme Court reasoned that without such immunity, “[a] witness’s apprehension of

subsequent damages liability might induce ... self-censorship,” either by making

witnesses reluctant to come forward in the first place or by distorting their testimony,

which would then deprive the finder of fact of candid and objective evidence. Briscoe

v. LaHue, 460 U.S. at 333. This immunity has been extended to witnesses in Family

Court proceedings. See Buchanan v. Ford, 638 F. Supp. 168, 171 (N.D.N.Y. 1986).

This witness immunity extends to providing information by way of affidavit on issues

such as support obligations. Hart v. Shmayenik, 2023 WL 7164975, at *5 (S.D.N.Y.

Oct. 30, 2023). Nor can Plaintiffs attempt an end run around this immunity by alleging

a conspiracy with other individuals to present false testimony. Rehberg v. Paulk, 566

U.S. at 369. Accordingly, all claims arising out of a witness’s testimony are subject to

dismissal.

5. State Action and Conspiracy

To state a claim under section 1983, a plaintiff must allege both that (1) a right

secured by the Constitution or laws of the United States was violated, and (2) the right

was violated by a person acting under the color of state law, or a “state actor.” West v.

Atkins, 487 U.S. 42, 48-49 (1988). Private parties generally are not state actors and

therefore are not usually liable under section 1983. Sykes v. Bank of Am., 723 F.3d 399,

406 (2d Cir. 2013); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.

2002) (“[T]he United States Constitution regulates only the Government, not private

parties.”).

Plaintiffs have named the following private individuals and entities as

Defendants: Sarah Wood, Donnellan Law, Saratoga Center for the Family, Jessica

Vinson, Vella Carbone LLP, Denise Resta-Tobin; Elena Tastensen, Heather Corey-

Mongue, Marc Greenwald, Lisa Proskin, Proskin Law, JoAnne Coughtry, Wende

Tedesco, Rebecca Baldwin, Marriet M. West Child Advocacy, Saratoga Center for the

Family, Dr. O’Connor, Dr. Bashkoff, NP Julia Gross, Veronica Smith, James Bennett

and Sharon Bennett. Plaintiffs have alleged no facts showing that any of these

Defendants has acted as a state actor in any relevant respect, or that their conduct is

fairly attributable to the state. Elmasri v. England, 111 F. Supp. 2d 212, 221 (E.D.N.Y.

2000) (dismissing § 1983 claims where defendants, including plaintiff's ex-wife, “acted

purely as private individuals in connection with the state court [divorce and child

custody] proceedings”).

Further, the allegations of fact that Victoria Smith went to family court, filed

claims for support and custody, and requested protective orders does not establish that

Ms. Smith, a private citizen, was acting “under color of state law” for the purposes of §

1983 liability for the alleged constitutional violations. Jacobs v. Jacobs, 2023 WL

4503766, at *3 (2d Cir. July 13, 2023). “Under our precedents, the fact that [defendant]

sought the protection of family court does not mean [s]he was acting under color of

state law.” Id.; see also Serbalik v. Gray, 27 F. Supp. 2d 127, 131 (N.D.N.Y. 1998) (A

private party does not act under color of state law when she merely elicits state aid or

invokes the exercise of the state official’s authority); Taylor v. Nichols, 558 F.2d 561,

564 (10th Cir. 1977) (“The acts of filing a claim and testifying at trial do not constitute

state action. These are private acts.”).

Plaintiffs do allege that all of the Defendants conspired with each other to violate

their federal constitutional rights. The Court understands these allegations as attempting

to state a claim under section 1983, as well as 42 U.S.C. section 1985(3) (“section

1985”), which applies specifically to conspiracies. But because Plaintiffs’ allegations

are vague and lack supporting facts, they fail to state a claim of conspiracy under either

section 1983 or section 1985(3). See Wang v. Miller, 356 F. App'x 516, 517 (2d Cir.

2009); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (noting that section 1985

claims must be dismissed where they contain “only conclusory, vague, or general

allegations of conspiracy to deprive a person of constitutional rights”). The Supreme

Court has noted that “merely resorting to the courts and being on the winning side of a

lawsuit does not make a party a co-conspirator or a joint actor with the judge.” Dennis v.

Sparks, 449 U.S. 24, 28 (1980); see also Deem v. DiMella-Deem, 2019 WL 1958107, at

*8 (S.D.N.Y. May 2, 2019) (allegations of a conspiracy to violate civil rights must be

pleaded with specificity, and “[a]n otherwise invalid [§] 1983 claim cannot survive a

motion to dismiss merely by mentioning the word ‘conspiracy’”); Parent v. New York,

786 F. Supp. 2d 516, 540 (N.D.N.Y. 2011) (Private attorney for wife during divorce

proceedings was not liable under § 1983 for allegedly conspiring to violate husband’s

constitutional rights, despite husband’s allegations that attorney engaged in ex parte

conversation with judges, where there was no evidence suggesting concerted action

between attorney and any state actor to deprive husband of his civil rights)

6. No Affirmative Duty

The claims against the Saratoga County police officials center on their alleged

failure to provide protective services to the Plaintiffs, or the more generalized failure to

provide supervision. In particular, on November 8, 2023, it is alleged that Saratoga

County Deputies Connor Houle and Tyler Stank were dispatched to the Plaintiffs’ home

on a report of an incident involving Defendant Veronica Smith. After they arrived at the

scene, it is alleged that their Supervisor, Capt. David Huestis, instructed the two

Deputies to leave the scene without ensuring the safety and security of the Plaintiffs,

and further, that after the Deputies left the scene, Plaintiffs were assaulted by Defendant

Smith. Compl. at ¶ 18. Later in the day when Defendant Smith reported that the

Plaintiffs had in fact attacked her, her claim was accepted without consideration of the

Plaintiffs’ version of events. Id.

Similarly, the day before Father’s Day in 2022, police were called to the

Plaintiffs’ residence, in which point Defendant Smith’s mother, Sharon Bennett, and

stepfather James Bennett had been in the driveway. Compl. at ¶ 20. The New York

State Police were present, and Christopher Hollenbeck and Scott Carpenter, Supervisors

from the Saratoga County Sheriff’s Office, arrived and consulted with the State Police.

As result of that conversation, it is alleged that the police officers who were present did

not offer protection to the Plaintiffs, nor compel the Bennetts to vacate the driveway.

Compl. at ¶ 15.

On October 12, 2023, Plaintiff Smith alleges that he approached Defendant

William Heid, with the Saratoga County Sheriff’s Office, to make a complaint of

parental interference by Defendant Veronica Smith. Lt. Hyde, noting that the Sheriff’s

Department policy is not to press charges for parental interference, refused to provide

protection to the Plaintiffs. Compl. at ¶ 175.

Defendant Michael Zurlo is the Saratoga County Sheriff, and Jeffrey Brown is

the Undersheriff. Compl. at ¶ 14. They are being sued by Plaintiffs because of their

failure to respond and hold Defendants Bennett and Veronica Smith accountable for

their actions. Compl. at ¶¶ 14, 16, 21. They are alleged to be final policymakers for the

Sheriff’s office, and in that role they created a culture of neglect. Compl. at ¶¶ 16, 21,

22.

Also listed as Defendants are individuals who are employed by either Saratoga

County or Warren County Department of Human Services. These include Defendants

Christine Zimmerman, Conceta HMura, Carlye Magnusen, Ashley Callahan and Marlo

Norton. Compl. at ¶ 72. Callahan and Norton were caseworkers, and the remaining

social service workers were their supervisors. Plaintiffs allegations are that the DHS

Defendants did not refer 11 false allegations by Defendant Smith out to law

enforcement, nor did they conduct any internal investigation; they disregarded

significant evidence of educational, medical, and dental neglect; they failed to adhere to

their internal guidelines; and that the Plaintiffs reached out to the supervisors on

numerous occasions making complaints, but without those supervisors making any

rectification of the alleged violations. Compl. at ¶¶ 72, 74, 131, 233, 271, 322. The

Plaintiffs rely upon the fact that Rensselaer County DSS “indicated” a report of abuse

by Defendant Veronica Smith as evidence that the investigations of Warren and

Saratoga County were faulty.

Also sued in the Complaint are Kevin Kolakowski and Meghan Warren,

respectively, the Superintendent and the Administrator of the Mechanicville School

District. Plaintiff Smith alleges that those Defendants failed to address reports of

educational neglect involving the Smith children, who were being homeschooled; they

relied on Defendant Veronica Smith’s fraudulent reports of the children’s education,

rather than accede to Plaintiff’s request to have the children independently tested; and

they generally fostered a pattern of neglect and failed to take remedial action. Compl. at

¶ ¶ 79, 81, 271, 332. The City of Mechanicville is sued because it is, or should be,

responsible for the School District.

In sum, Plaintiffs’ claims rest on the alleged failure of the courts, police, social

service staff and school officials to better intervene and prevent misconduct of private

parties against them or the Smith children. This lack of diligent action by the local

officials is said to have, inter alia, violated the Plaintiffs’ due process rights.

Such a theory of constitutional liability, however, has already been rejected by

the United States Supreme Court. In DeShaney v. Winnebago Cnty. Dep’t of Soc.

Servs., Social Services had received information that the child was being abused by his

father but ultimately released him back to his father’s custody upon the finding that

there was insufficient evidence of abuse. 489 U.S. 189, 192 (1989). It turned out that

the father continued to abuse the child, resulting in permanent brain damage to the child,

Joshua. Id. at 193. The Supreme Court rejected the mother’s claim on behalf of the

child and held that the failure of Social Services to remove Joshua from his father’s

custody, despite the defendants’ alleged knowledge of abuse, did not constitute a

violation of the due process clause because the person causing injury was a private

citizen, and not a state actor. Id. at 202. The Court noted that there was no affirmative

obligation on the part of the state to provide protective services. Id. at 196-97.

Thereafter, the Supreme Court held that there was no due process right regarding

the negligent enforcement of an order of protection by the police. Town of Castle Rock,

Colorado v. Gonzales, 545 U.S. 748, 768-69 (2005) (“[T]he benefit that a third party

may receive from having someone else arrested for a crime generally does not trigger

protections under the Due Process Clause, neither in its procedural nor in its

“substantive” manifestations. … Although the framers of the Fourteenth Amendment

and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of § 1983), did not

create a system by which police departments are generally held financially accountable

for crimes that better policing might have prevented, the people of Colorado are free to

craft such a system under state law.”).

Based upon the above stated precedent, the claims against the police officers,

their supervisors, the school staff, social services employees and supervisors, predicated

on their failure to properly investigate claims of abuse or custodial or parental

interference; report and investigate false claims of abuse; or enforce or issue orders of

protection, are without legal merit and do not survive initial review. To the extent

Plaintiffs attempt to predicate their procedural due process claim on the Saratoga and

Warren County Defendants’ alleged failure to report abuse or neglect, as required under

New York Social Services Law, that claim also fails to survive Court review. Although

New York State law requires that mandated individuals report instances of suspected

child abuse or maltreatment, such reporting is not constitutionally required. Jones v.

Nickens, 961 F. Supp. 2d 475, 493 (E.D.N.Y. 2013). “State child protection legislation,

even with procedural requirements “for the immediate classification and evaluation of

child abuse reports, the timely initiation of an investigation, and the conduct of the

investigation,” does not create protected property or liberty interests when the statutory

scheme “invest significant discretion in the [child protective workers] to determine both

whether an investigation is warranted and what remedial action, if any, to pursue based

on the results of the investigation.” Hilbert S. v. Cnty. of Tioga, 2005 WL 1460316, at

*11 (N.D.N.Y. June 21, 2005) (internal quotations and citations omitted).

7. Monell Liability and Supervisory Liability

In addition to their substantive claims, the Plaintiffs attempt to assert liability

pursuant to Monell v. Dep't of Soc. Serv., 436 U.S. 658 (1978), against Warren and

Saratoga County, and the City of Mechanicville. To demonstrate Monell liability, a

plaintiff must allege a violation of constitutional rights by employees of the

municipality and “(1) the existence of a municipal policy or custom ... that caused his

injuries beyond merely employing the misbehaving officer[s]; and (2) a causal

connection - an affirmative link - between the policy and the deprivation of his

constitutional rights.” Harper v. City of New York, 424 F. App’x. 36, 38 (2d Cir. 2011)

(internal quotations and citations omitted). A fundamental requirement of a Monell

claim is the establishment of an underlying constitutional violation. City of Los Angeles

v. Heller, 475 U.S. 796, 799, (1986); see also Segal v. City of New York, 459 F.3d 207,

219 (2d Cir. 2006) (“Because the district court properly found no underlying

constitutional violation, its decision not to address the municipal defendants’ liability

under Monell was entirely correct.”). In the present case the Court is recommending the

dismissal of all the federal claims and, as such, also recommends that any Monell claim

be likewise dismissed.

For similar reasons the Court recommends the dismissal of claims against the

Defendants that are premised upon supervisory liability. That would include the claims

against Hallenbeck, Carpenter, Zurlo, Heggen, Brown, Zimmerman, H’mura, Norton,

Granger, and Hartnett. Compl. at ¶¶ 14, 16, 2, 72, 268. At the onset, it is important to

note that the term ‘supervisory liability’ is a misnomer insofar as it implies respondeat

superior liability; rather, to succeed, a plaintiff must plead that each Government-

official defendant, through the official’s own individual actions, has violated the

Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting

Ashcroft v. Iqbal, 556 U.S. at 676. Again, as the Court has recommended dismissal of

the underlying federal claims for failure to state a claim, the causes of action against any

supervisors necessarily fail as well.

E. Claims under the ADA and the Rehabilitation Act

The final federal claims alleged by Plaintiff Ethan Smith allege a violation of his

rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12131, et seq.,

and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiff alleges that he suffers

from various disabilities, including ADHD and Auditory Processing Delay, and that he

was entitled to various accommodations during his court proceedings such as an ADA

compliant notetaker, but that while he was initially granted that accommodation, it was

latter revoked by Judge Pelagalli. Compl. at ¶ 300. When Plaintiff, during a

proceeding, attempted to explain his auditory problems, Judge Wait’s response was said

to be dismissive and insensitive. Compl. at ¶ 178. Further, during a December 19, 2023

hearing , Judge Wait had Smith’s notetaker (Plaintiff Dees) leave the courtroom.

Compl. at ¶ 185. While the Complaint references Defendant Heggen and Williams in

connection with this claim, it makes no specific factual allegations against them.

The Plaintiff’s ADA and Rehabilitation Act claims, which arise out of in-court

conduct and decisions regarding the regulation of judicial proceedings, are barred by the

Rooker-Feldman doctrine, judicial immunity, and by §1983’s requirement that

injunctive relief against a judge is barred unless a declaratory decree was violated, or

declaratory relief was unavailable. Richter v. Connecticut Jud. Branch, 2014 WL

1281444, at *10 (D. Conn. Mar. 27, 2014), aff’d, 600 F. App’x 804 (2d Cir. 2015).

Additionally, neither statute provides for individual liability. See Goe v. Zucker, 43

F.4th 19, 35 (2d Cir. 2022) (citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280

F.3d 98, 107 (2d Cir. 2001)).

F. State Court Claims

A district court may decline to exercise supplemental jurisdiction over state law

claims when it “has dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the

lawsuit in its early stages and only state-law claims remain, the federal court should

decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 n.7 (1988). Having recommended dismissal of the federal claims over which the

Court has original jurisdiction, the Court also recommends that the District Court

decline to exercise its supplemental jurisdiction over any state law claims Plaintiffs may

be asserting.

III. CONCLUSION

For the forgoing reasons, the Court recommends that the Plaintiffs claims

seeking to review and reject state court judgments that were rendered prior to the filing

of the federal court action, be dismissed due to lack of jurisdiction pursuant to the

Rooker-Feldman doctrine.

Next, the Court recommends that the District Court abstain from deciding issues

related to the ongoing Family Court and Supreme Court proceedings pursuant to

Younger v. Harris.

Third, the Court recommends dismissal of the claims alleging a violation of the

Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. 1962, or a

conspiracy to do the same.

Fourth, the Court recommends that the claims against the following individuals

be dismissed, with prejudice, on grounds of judicial immunity or quasi-judicial

immunity: Judge Paul Pelagalli; Saratoga Supreme Court Judges John Ellis and Dianne

Freestone; City Court Judge Jeffrey Wait; Saratoga County Court Judge James Murphy;

Administrative Judge for the Fourth Judicial District Judge Felix Catena; Appellate

Division Justices Elizabeth Garry and Christine Clark; Court Attorney Karla Conway;

and Court-appointed experts Jaqueline Bashkoff and Dr. Mary O’Connor; and the

private attorneys appointed by the Court to represent the Smith children - Jessica

Vinson of Vella Carbone, LLP; Denise Rest-Tobin; Elena Tastensen; and Heather

Corey-Mongue.

Fifth, the Court recommends dismissal with prejudice of the claims against the

government attorneys involved in the court proceedings or that were integral to the

litigation process: Samuel Maxwell, Emily Williams, Michelle Granger, and Michael

Hartnett.

Sixth, the Court recommends that the claims involving the following Defendants

be dismissed with prejudice on the grounds of witness immunity, insofar as the claims

against them are based upon their testimony or information provided to the Court:

Jillian Knox; Dr. Bashkoff; Dr. O’Connor; Veronica Smith; and Denise Rista-Tobin.

Seventh, the Court recommends that all other federal claims against the

remaining Defendants be dismissed for the reasons set forth above.

Eighth, the Court recommends that the District Court decline to exercise

supplemental jurisdiction over the remaining state law claims.

Unless specifically stated otherwise, several of the above recommendations of

dismissal are based primarily on pleading deficiencies and not necessarily on the

viability of the claims intended to be stated. Although the Court recommends dismissal

of such claims and Defendants, alternatively, in light of Plaintiffs’ pro se status, the

Court recommends that on those claims not subject to dismissal with prejudice, the

Court should afford Plaintiffs the opportunity to file an amended complaint if they

desire to proceed. Should Plaintiffs be directed by the District Judge to file an amended

complaint, I offer the following guidance. Any such amended complaint, which shall

supersede and replace in its entirety the original Complaint filed by Plaintiffs, must

contain a caption that clearly identifies, by name, each individual that Plaintiffs are

suing in the present lawsuit and must bear the case number assigned to this action. The

body of Plaintiffs’ amended complaint must contain sequentially numbered paragraphs

containing only one act of misconduct per paragraph. Thus, if Plaintiffs claim that their

civil and/or constitutional rights were violated by more than one defendant, or on more

than one occasion, they should include a corresponding number of paragraphs in the

amended complaint for each such allegation, with each paragraph specifying (i) the

alleged act of misconduct; (ii) the date on which such misconduct occurred; (iii) the

names of each and every individual who participated in such misconduct; (iv) where

appropriate, the location where the alleged misconduct occurred; and, (v) the nexus

between such misconduct and Plaintiff’s civil and/or constitutional rights.

Importantly, any such pleading must be “concise and direct.” Fed. R. Civ. P.

8(d) (emphasis added).

Plaintiffs’ amended complaint shall also assert claims against each and every

defendant named in such complaint; any defendant not named in such pleading shall not

be a defendant in the instant action. Plaintiff is further cautioned that no portion of any

prior complaint shall be incorporated into their amended complaint by reference.

Plaintiffs shall state in the single amended complaint all claims that they wish this Court

to consider as a basis for awarding Plaintiff relief herein; and their failure to file such a

pleading will result in dismissal of this action without further Order of the Court.

WHEREFORE, it is hereby

RECOMMENDED, that the Complaints be DISMISSED as set forth above;

and it is

ORDERED, that the Motions for Leave to File Electronically are DENIED; and

it is further

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

Recommendation and Order upon the parties to this action.

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

SO ORDERED.

Dated: March 11, 2024

Albany, New York

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US-Magistrate Judge

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