Bergrin v. United States of America

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

RONALD A. BERGRIN, :

:

Plaintiff, :

: 19-CV-9681(VSB)

- against - :

: OPINION& ORDER

:

UNITED STATES OF AMERICA, et al., :

:

Defendants. :

:

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Appearances:

Ronald A. Bergrin

New York, New York

Pro Se Plaintiff

Zachary Bannon

United States Attorney’s Office

New York, New York

Timothy J. Bojanowski

Struck Love Bojanowski & Acedo, PLC

Chandler, Arizona

Counsels for Defendants

VERNON S. BRODERICK, United States District Judge:

Before me are the motions to dismiss Plaintiff’s amended complaint (“Amended

Complaint” or “Am. Compl.”), (Doc. 7), from a group of defendants who are federal government

entities or federal employees (the “Moving Government Defendants”),(Doc. 74),and from

another group of defendants who are affiliated with CoreCivic, Inc.(the “CoreCivic

Defendants”),(Doc. 77). Because I find that Plaintiff’s claims are barred by (1) failure of

service, (2) lack of personal jurisdiction, (3) statute of limitations,and (4) immunity, Defendants

motions are GRANTED and Plaintiff’s Amended Complaint is DISMISSED in its entirety.

Factual Background1

Plaintiff was born and grew up in New York. (Am. Compl. ¶ 13.) He movedto

Manhattan in 1981 where he worked as a real estate broker, (id.¶ 14),and still maintained a

residence in New York City at the time the incidents that led tothis case began,(id. ¶ 26).

In or about July2009,Plaintiff’s counsin Paul Bergrin, who was a criminal defense

attorney in Newark,New Jersey,was charged with drug-related crimes in connection with his

criminal clients in the drugbusiness. (Id. ¶ 17–18.) In or about August 2009, while being

detained, Paul Bergrinsent a letter offer of a “54-month plea-deal” to the United States

Attorney’s Office in New Jersey(“USAO NJ”) through Plaintiff, his cousin. (Id. ¶ 20.) After

Plaintiff deliveredthe letter to USAO NJ, he received a call from “one of the Assistant U.S.

Attorneys”(“AUSAs”),whoasked to meet with Plaintiff “to discuss the plea deal.” (Id. ¶ 21.)

The meeting took place at “the office of the Federal Bureau of Investigation” in Newark, and

Plaintiff met with Special Agents Shawn Brokos and Steven Clinefrom the Federal Bureau of

Investigation (“FBI”). (Id. ¶ 22.) Althoughthe two FBI agents appeared friendly at first, they

ultimately rejected the plea deal and made clear that they “would not consider anything less than

20 years.” (Id. ¶ 23.)

1The facts contained in this section are based upon the factual allegations set forth in Plaintiff’s Amended

Complaint. Many of these allegations strain credulityandare implausible on their face. Indeed, as will be discussed

below, some of the allegations could be characterized asfanciful, fantastic, or delusional. My reference to these

allegations should notbeconstrued as a finding as to their veracity, and I make no such findings.

Acourt may dismiss a complaint, even a “sufficiently well-pleaded”one,if it contains “fanciful, fantastic, or

delusional” facts. Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (quoting Denton v. Hernandez, 504 U.S. 25,

32–33(1992))(internal quotation marks omitted). Here, I make no findings as to which of Plaintiff’s allegations are

“fanciful, fantastic, or delusional,” for I find other grounds to dismiss the Amended Complaint. The fanciful,

fantastic, or delusionalnature of these allegations did not effect my analysis or influence my decision except in my

finding that any further attempt from Plaintiff to amend would be futile. See infra. With this understanding, I

assume the allegations in the Amended Complaint to be true in considering the motions to dismiss pursuant to

Federal Rule of Civil Procedure Rule 12(b)(6). Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir.

2007).

A week after the meeting, Brokos reached out to Plaintiff to seek Plaintiff’ s cooperation

in the prosecution against Paul Bergrin by working as an informant for the government. (/d. 4]

24.) Plaintiff refused the request because he “did not want to be disloyal to his cousin.” (/d.)

Within a couple of weeks, the “retaliation” from the FBI began, which ultimately became

five years of “severe, persistent, and pervasive harassement.” (Ud. J] 26, 28.) FBI agents would

wait outside Plaintiffs residence and “say obnoxious things to [him] when he walked out,”

including “‘accus[ing] [him] of being ‘A Traitor To [his] Country.’” (Ud. 426.) FBI agents

contacted “in excess of 200 people that [Plaintiff] had relationships with” and told them that

Plaintiff was involved in crimes with his cousin. (d. 4] 27.) FBI agents “intimidated and

threatened” these people in order to force them to become informants against Plaintiff. Ud.

28.) FBI agents and those people who agreed to become informants (60 out of the 200 people)

attempted to “set-up and entrap” Plaintiff in crimes “every 45-60 days,” for a total of over fifty

entrapment attempts during the five years. (Ud. 9] 28-29.) Examples of these entrapment

attempts and harassment include:

e Plaintiffs neighbor in Manhattan, after becoming a government informant,

climbed onto the roof of the building they lived in and “spliced into [Plaintiff s]

cable-wire [and then] download[ed] all of [Plaintiff’s] personal files” from his

personal computer. (d. 9] 31-32.)

e An FBI agent attempted to murder Plaintiff by hitting him with a car as he was

crossing the street. (Ud. 4] 40.)

e Abdul J, a friend of Paul Bergrin’s, cooperated with the FBI and attempted to

entrap Plaintiff with the murder of a witness who would testify against Paul

Bergrin. Abdul J told Plaintiff, during their meeting at a pizza restaurant, that “I

could arrange to have [the witness] killed in prison if you give me the go ahead.”

Plaintiff refused, and later discovered that people who looked like FBI agents

were waiting outside the pizza restaurant in a car, apparently recording the

conversation. (Jd. 4] 46-59.)

e Plaintiff received messages from an allegedly 16-year-old girl who invited him to

her home where they would “have the house to [themselves].” Plaintiff never

knew this girl before, and he told the investigator he hired for his cousin’s case

about this incident. The investigator told Plaintiff that the FBI “often sets-up men

and entraps them” with sex with underage girls. (Ud. {| 60-61.)

e FBI agents told Plaintiffs landlord that Plaintiff had been involved in “income tax

evasion, money laundering, and other crimes” and warned the landlord that “i]t is

illegal to accept dirty money once you know that the money is dirty.” As a result,

Plaintiffs landlord asked Plaintiff to move out upon the expiration of the lease.

Ud. 4 65.)

In addition, FBI agents put “near-lockstep surveillance” on Plaintiff such that he “could

not leave his home without FBI agents following him.” (d. § 34.) FBI agents even arranged

with local police to “sit in police cars outside of his Mother’s home 24/7” when Plaintiff visited

his mother in Florida. (/d.) The harassment did not stop but continued after Paul Bergrin was

convicted, during a second trial, in 2013.7 Ud. 441.)

Due to the stress caused by such “harassment,” Plaintiff suffered a “severe heart attack”

2 On September 23, 2012, Paul Bergrin was sentenced to multiple mandatory terms of lifetime imprisonment after a

two-month jury trial before U.S. District Judge Dennis M. Cavanaugh. See Attorney Paul W. Bergrin Sentenced To

Life In Prison For Murder Conspiracy And Racketeering Offenses, United States Attorney’s Office of the District of

Ih www Jjustice.gov/archive/usao/nj/Press/files/Bergrin,% 20Paul% 20Sentencing% 20News% 20Release.html

(last accessed March 28, 2022).

in June 2011, and underwent several surgical procedures. (Id. ¶ 35.) Plaintiff was then

prescribed numerous heart-related medications which he was required to take on a daily basis.

(Id.)

Plaintiff attempted tocontact(1) James Comey, then-director of the FBI; (2) Aaron Ford,

then-director of the FBI’s field office in Newark; and (3) Paul Fishman, then-U.S. Attorney for

the District of New Jersey. (Id. ¶¶ 30, 37.) None of them accepted Plaintiff’s calls, replied to his

letters, or otherwise did anything to stop the“harassment” from the FBI. (Id.) Plaintiff

contacted the Office of the Inspector General, which also refused to intervene but advised

Plaintiff that he could “file a complaint against the FBI with the FBI.” (Id. ¶ 37.) Plaintiff did

not think this advice “make any sense.” (Id.)

Plaintiff learned that one of the crimes Paul Bergrin was charged with was “conspiracy to

cause the death of a drug dealer in Newark, New Jersey who had been working for the FBI as a

Confidential Informant.” (Id. ¶ 18.) Subsequently, the investigators that Plaintiff hired for Paul

Bergrin’s case told Plaintiff that they had “uncovered the reason that [the FBI agents, in

particular Agent Brokos]” kept harassing Plaintiff. (Id. ¶ 68.) Specifically, these investigators

found that Brokos negligently exposed the identity of the drug dealer as agovernment informant.

(Id.¶ 68–70.) One of the members of a street gang that conducted business with this drug dealer

happened to be Paul Bergrin’s client;after learning that the drug dealer was an informant, Paul

Bergrinsuggested to “get rid of” this drug dealer-informant,and the person was subsequently

murdered. (Id.¶ 71.) The conclusion drawn from Plaintiff’s investigation was that Brokos

destroyed Plaintiff’s life and business in order to “prevent the numerous investigators that

[Plaintiff] had retainedfor his cousinfrom finding out the details of [her] negligence.” (Id. ¶ 70.)

In 2013, Brokos was transferred from New Jersey to Pittsburgh, Pennsylvania. (Id. ¶ 73.)

Plaintiff obtained Broko’s home address though Google, and sent her “Easter Cards,” thinking

that “if Ms. Brokos was aware that [Plaintiff] knew where she lived in Pennsylvania, that she

might put an end to the severe, persistent, and pervasive harassmentby pulling the other FBI

agents off of [Plaintiff].” (Id. ¶ 74.) Plaintiff also considered “stopping by the home of [Brokos]

. . .to say hello,” just to let her know that “[Plaintiff] knows where she lives.” (Id. ¶ 76(internal

quotation marks omitted).)

In mid-November 2014, Plaintiff sent a letter to Aaron Ford and James Comey,

informing them that Plaintiff would serve them, as well as several others including Brokos,with

a civil lawsuit for harassment within the next sixty days. (Id. ¶ 77.) On December 19, 2014,

Plaintiff was arrested at ahotel during his visit to a friend in Cleveland, Ohio. (Id. ¶ 79.) He

was then charged with“threatening an FBI agent via email.”3 (Id.)

After Plaintiff was charged, Brian McDonough,the AUSA assigned to his case, offered

him a plea deal to a one-count misdemeanor, which Plaintiff rejected. (Id. ¶ 86.) Subsequently,

Plaintiff was transferred to the Northeast Ohio Correctional Center (“NOCC”) in Youngstown,

Ohio, which was a private prison owned and managed by CoreCivic, Inc. (“CoreCivic”). (Id. ¶

87.) At NOCC, pre-trial inmates like Plaintiff were under the custody of the United States

Marshals Service (“USMS”). (Id.)

On December 30, 2014, Plaintiff was brought before Magistrate Judge Nancy

Vecchiarelli of the Northern District of Ohio for a bail hearing. (Id. ¶ 88.) There,Plaintiff met

withCarolyn Kucharski fromthe Office of the Federal Public Defender (“FPDO”), who was

3Specifically, Plaintiff sent an email from the Northern District of Ohio in which he made comments aboutAgent

Brokosthat “She thinks she’s living in a safe place. A place where nobody can find out where she lives and nobody

could get her. I’m going to teach her that I could crush her like the bug she is. . . She will never sleep at night

again. She will have nightmares.” New York Man Indicted for Cyberstalking FBI Agent,UnitedStates Attorney’s

Office of the Northern District of Ohio,https://www.justice.gov/usao-ndoh/pr/new-york-man-indicted-

cyberstalking-fbi-agent(last accessed March28, 2022).

assignedashis counsel. (Id.) During their meeting with AUSAs Brian McDonough,Matthew

Shepherd,and the two FBI agents who arrested Plaintiff, Kucharski “betrayed [Plaintiff] by

arguing vociferously against [him] receiving bail.” (Id. ¶¶ 89–90.) Plaintiff started to argue with

his own attorney, meanwhile the two AUSAs and the two FBI agents were “laughing at

[Plaintiff].” (Id. ¶ 90.) After the meeting, when Kucharski and Plaintiff were alone in the

attorney-client meeting room, Kucharski “started crying profusely,” saying that she and her

colleague Edward Bryan were under FBI criminal investigation, and that the FBI pressured them

into “betraying” Plaintiff by arguing against his bail, so that she andBryancould avoid being

charged by the government. (Id. ¶¶ 91–92.) After learning this information, Plaintiff

immediately requested a meeting to inform Judge Vecchiarelli of what Kucharski told him.

Kucharski confirmedPlaintiff’s statements withJudge Vecchiarelli. (Id. ¶ 93.) Judge

Vecchiarelli then disqualified the FPDOfrom the case. (Id.)

Nevertheless, Plaintiff was denied bail by Judge Vecchiarelli. (Id. ¶ 104.) Plaintiffthen

appeared before DistrictJudge Dan A. Polster of the Northern District of Ohiowith his newly-

appointedCriminal Justice Act attorney Michael O’Shea. (Id. ¶¶ 95, 105.) Judge Polster told

Plaintiff that O’Shea had requested that Plaintiff undergo a psychological evaluation to ensure

that he was competent to stand trial. (Id. ¶ 106.) Judge Polster then ordered Plaintiff to undergo

a psychological evaluation. (Id. ¶ 108.)

Plaintiff was sent to the Metropolitan Correctional Center (“MCC”) in Chicago for a 10-

week psychological evaluation, at the conclusion of which the doctors determined that Plaintiff

was competent to stand trial. (Id. ¶ 110.) The doctors told Plaintiff that Judge Polster contacted

them and “repeatedly attempted to pressure the doctors to declare [Plaintiff] incompetent to stand

trial.” (Id.) After Plaintiff returned to Ohio from Chicago, Judge Polster denied Planitiff’s

motion for a speedy trial and refused to set a trial date, such that Plaintiff would staydetained for

the following sixteen months. (Id. ¶ 112.) Judge Polster also reappointed Carolyn Kucharski,

Edward Bryan, and Claire Curtis from the FPDOto represent Plaintiff, despite Judge

Vecchiarelli’s previous order that disqualified these attorneys. (Id.)

After Plaintiff returned to NOCCfrom Chicago, the medical staff refused to give Plaintiff

his prescribed heart-related medications that he needed to take every day. (Id. ¶ 114.) Peter

Elliott, a United States Marshal in Cleveland, instructed Warden Laura Bedard to order the

medical staff to withholdPlaintiff’s medication, despite knowing, based onPlaintiff’s medical

records,that even a short period without the medicationcould lead to severe illness. (Id. ¶ 115.)

Plaintiff quickly began experiencing heart problems, and his entire body “filled-upwith fluid,”

which led to severeand permanent damage to his heartinthe ensuingsix months. (Id. ¶¶ 117,

119.)

On July 21, 2015, Plaintiff was taken out of his prison cell and brought to the courthouse

in Cleveland. (Id. ¶ 138.) When he arrived, the U.S.Marshals brought him and another inmate

to the basement of the courthouse. (Id.) The two were thenlocked inside a “freezer” for hours

where “[t]he temperature . . . was Below Zero.” (Id. ¶¶ 138–139.) The U.S Marshals “ignored

their pleas” to get out and were “laugh[ing]” and “celebrating” when the other inmate passed out

from “hypothermia.” (Id. ¶¶ 139–140.) Plaintiff afterwards told his cardiologist in New York

about this incident. (Id. ¶ 142.) His cardiologist told him that as a result of not taking his

prescribed medicine, his body was “filled up with fluids [which]insulated [his] heart” against the

temperature in the freezer and that,but for the fluid,he “would surely have died in that freezer.”

(Id. ¶ 143.)

Plaintiff’s doctors in New York City called NOCC and askeda senior member of the

medical staff, Renee Sferra,to give Plaintiff his medicationimmediately. (Id. ¶ 148.) Sferra

rejected this request. (Id.) Plaintiff also filed numerous motions and letters with Judge Polster,

requesting that his medication be administered, all of which Judge Polster denied. (Id. ¶ 150.)

Plaintiff wrote letters to Chief Judge Solomon Oliver, Jr.of the Northern District of Ohio,but

did not receive a response. (Id. ¶ 153.) Plaintiff also wrote letters to Steven Dettelbach, then-

U.S.Attorney for the Northern District of Ohio,and Dennis Terezfrom FPDO; again,neither of

them responded. (Id. ¶ 154.)

In December 2015, Plaintiff was taken to the courthouse for a competencyhearing. (Id. ¶

155.) Despite the MCC doctors’ finding that Plaintiff was competent to stand trial,Plaintiff’s

counsel,EdwardBryan and Claire Curtis,retained another doctor named George Schemedlento

testifythat Plaintiff was incompetent to stand trial. (Id.) Plaintiff was not permitted to question

Schemedlen or to present witnesses himself. (Id.) Bryan and Curtis later told Plaintiff that Judge

Polster told them: “If [Plaintiff] were to say anything during the hearing, I will hold [him] in

Contempt of Court and I will sentence [Plaintiff] to six months of prison for each time he opens

his mouth.” (Id. ¶ 156.)

On January 3, 2016, Plaintiff was removed from NOCCto the Federal Medical Center

(“FMC”) in Butner, North Carolinafor “Competency Restoration.” (Id. ¶ 160.) When he

arrived, he was again “placed into a freezer by himself for the following24-hour period.” (Id. ¶

162.) During Plaintiff’s time at FMC, Judge Polster contacted Tanya Cunic, Plaintiff’s primary

doctor at FMC, and asked her to “fraudulently declare [Plaintiff] incompetent to stand trial” and

threatened to have her job terminatedif sherefused. (Id. ¶¶ 164–66.) Cunic told Plaintiff that

she documented Judge Polster’s “criminal behavior” in Plaintiff’s twoCompetency Reports. (Id.

¶¶ 164, 167.) Upon learning of the two reports, Judge Polster ordered them to be sealed and

contacted Warden J.C. Holland at FMC“to keep [Plaintiff] incarcerated” for an additional 90

days. (Id. ¶¶ 168, 171.)

During this time, the government continued its attempt to entrap Plaintiff. For example,

Plaintiff’s cellmate at FMC, RTB, who was a government informant, attemptedto entrap

Plaintiff by offeringto murder Judge Polster for Plaintiff for a nominal amount of money. (Id. ¶

175.) In addition, the government worked withBryan,Plaintiff’slawyer,to entrap Plaintiff by

giving him the Presentence Investigation Report of another defendant who was a “highly

attractive woman,” who Bryan identified as one of his clients. (Id. ¶¶ 178–79.)

On October 26, 2016, Judge Polster dismissed Plaintiff’s case after declaring again that

Plaintiff was incompetent to stand trial. (Id. ¶ 180.) Plaintiff was released from prison the next

day, but was not satisfied with the result. (Id. ¶¶182–83.) Instead, he appealed the dismissal of

his case with the assistance of CJA attorney Steven Jaeger. (Id. ¶ 186.) Jaeger, however,refused

to subpoena Plaintiff’s first two Competency Reports, which documented Judge Polster’s

“criminal behavior.” (Id.) Plaintiff called Jaegerand told himthat “there would be severe

consequences (or words to that effect) for refusing to subpoena the Competency Reports and for

filing an intentionally deficient appeal brief.” (Id. ¶ 187.) Jaeger then “got scared” and

“fabricated a story to the . . . [Sixth Circuit] so that he could be removed from this case.” (Id.)

After Jaeger’s withdrawal,another CJA counsel, Gary Crim,was appointed as Plaintiff’s

counsel. (Id. ¶ 188.) However,Crimalso refused to subpoena Plaintiff’s two Competency

Reports. (Id. ¶¶ 188–89.) Subsequently, Judge R. Guy Cole from the Sixth Circuit denied all

Plaintiff’s “Appeals, Motions, and Petitions for a Writ of Mandamus.” (Id. ¶ 191.)

Meanwhile, the FBI agents continuedto harass Plaintiff’s friends and lawyers to prevent

him from proceeding with his case. The FBI harassed Plaintiff by: (1) coercingand intimidating

Plaintiff’s friend,Jodi Gold,to prevent her from testifing on behalf of Plaintiff in his case against

the FBI,(id. ¶ 194); (2) forcing and intimidating the “Ivy League” attorneys that Plaintiff

retained into“throw[ing][Plaintiff] under the proverbial bus prior to abandoning[his]case,”(id.

¶ 195); (3) threatening Richard K., another lawyer Plaintiff retained,to destroy Plaintiff’s case

by “staying on the case and eating up as much time as possible,” (id. ¶¶ 200–03); (4) instructing

the Comenity Bank to terminate Plaintiff’s credit card,(id. ¶ 204); (5) coercing Plaintiff’s former

girlfriend, Ana P.,and his former clients, VitoR.and Kenneth Kelner,to entrap him in various

crimes,(id. ¶¶ 205, 208, 212); (6) pretendingto be “young beautiful women” from dating apps

tryingto contact Plaintiff,(id. ¶ 209);and (7) harassing acquaintances of Plaintiff, (see id. ¶

206).

Kenneth Kelner, Plaintiff’s former business client,was misled by the FBI into believing

that Plaintiff had committed crimes,andthereforerefused to pay Plaintiff substantial fees to

which Plaintiff was entitled as part of their contract. (Id. ¶ 212.) Plaintiff sued Kelner in the

Supreme Court of the State of New York,wherethe case was pending before Judge Robert R.

Reed. (Id. ¶ 214.) At the suggestion of Judge Cole, Judge Reed intended to declare Plaintiff

incompetent to bring a civil suit. (Id. ¶ 216.) Upon learning this information, Plaintiff’s attorney

immediately withdrew the lawsuit. (Id.)

After Plaintiff returned home from prison, he found that “in excess of Three Million

Dollars in valuables” were taken from his apartment by his landlord because the FBI told his

landlord that Plaintiff “[was not] coming home.” (Id. ¶¶ 218–20.) Plaintiff suedhis landlord,

and the case was also assigned to Judge Reed. (Id. ¶ 221.) However, “the Judges in Ohio

interfered” bycalling Judge Reed and askinghim to ensure that “[Plaintiff did] not receive any

money.” (Id.¶¶ 218, 221.) Shortly thereafter, Judge Reed fined Plaintiff $250for “no legitimate

reason whatsoever.” (/d. {| 222.) FBI agents also contacted Plaintiff’s counsel in that case and

attempted to pressure the attorney to enter into a stipulation to “withdraw the civil suit. . .

because [Plaintiff] was declared Incompetent to Bring a Civil Suit.” (Ud. 4] 225.) The attorney

later stipulated to withdraw the case, but did not put that language into the stipulation. (d.)

Plaintiff subsequently brought this case, with a 135-page Amended Complaint consisting

of 542 paragraphs, alleging 32 causes of action against 53 defendants (including 42 individual

defendants). The claims include malicious prosecution, harassment, battery, and false

imprisonment, all arising under 42 U.S.C. § 1983. The dendants appear below in groups of

affiliation based on the allegations in the Amended Complaint:

e United States of America, United States Department of Justice (‘USDOJ’), FBI,

USAO,* USMS, Federal Bureau of Prisons (“FBP”), Office of the Inspector

General, Office of the Attorney General, (together, the “Government Entity

Defendants’’);

e Judge Dan Polster, Judge R. Guy Cole, Judge Eric L. Clay, Judge Damon J.

Keith, Judge Deborah H. Cook, Judge Benice B. Donald, Judge Ronald Kee

Gilman, Judge Karen Nelson Moore, Judge Richard Allen Griffin, Judge Richard

F. Suhrhenrich, Judge Jane Branstetter Stranch, Judge Solomon Oliver, Jr.

(together, the “Sixth Circuit Defendants’’);

e Peter Elliot and John Doe of USMS in Cleveland, Ohio;

e John Doe of USMS in Butner, North Carolina;

e J.C. Holland, Warden at FMC-Butner;

e James Comey, Aaron Ford, Shawn Brokos, Steven Cline, Paul Fishman,

4 Plaintiff appears to be suing the USAO located in both New Jersey and Ohio.

12

(together, the “NJ Investigation Defendants’);

e John/Jane Doe FBI agents;

e Steven Dettlebach, Brian McDonough, Matthew Shepard (together, the “USAO

Ohio Defendants’’);

e FPDO, Denni Terez, Clarie Curtis, Carolyn Kucharski, Steven Jaeger, Gary Crim

(together, the “Defense Attorney Defendants’’);

e George W. Schmedlen, PhD, a court-appointed expert;

e NOCC, CoreCivic, Damons Hininger, Steven Grooms, Laura Bedard, Dana

Hivner, Jason Rupeka, Renee Sferra, Steven Senich, Kurt Kampfer, Deborah

Johnson, Arlene Glass (i.e. the “CoreCivic Defendants”); and

e Judge Robert R. Reed from the New York Supreme Court.

Ud. J] 253-541.) Plaintiff also brings a Bivens action against “certain members and former

members of the FBI and of the United States Department of Justice[,] the DOJ.” (Ud. 4 237.)

Il. Procedural History

Plaintiff filed his complaint on October 21, 2019. (Doc. 1.) On December 5, 2019,

Plaintiff filed his Amended Complaint. (Doc. 7.) Affidavits of Service were filed with respect

to USDOJ, (Doc. 11); CoreCivic, (Doc. 20); USAO, (Doc. 22); FBI, (Doc. 42); FBP, (Doc. 43);

Juge Robert R. Reed, (Doc. 46); J.C. Holland, (Doc. 49); and the Office of the Attorney General,

(Doc. 51). Summonses were returned executed with respect to NOCC, (Doc. 14); Brian

McDonough, (Doc. 15); Damons Hininger (Doc. 17); Steven Grooms, (Doc. 18); FPDO, (Doc.

28); Claire Curtis, (Doc. 29); Steven Senich, (Doc. 30); Dana Hivner, (Doc. 31); Judge Dan

Polster, (Doc. 32); Judge R. Guy Cole, (Doc. 33); Renee Sferra, (Doc. 34); USMS, (Doc. 35);

Matthew Shepherd, (Doc. 36); and Shawn Brokos, (Doc. 56).

13

On June 15, 2020, the USAO for the Southern District of New York, whichrepresents the

Government Entity Defendants, the NJ Investigation Defendants, the USAO Ohio Defendants,

Peter Elliot, J.C. Holland, and all the Sixth Circuit Defendants except Judge Polster, Judge

Griffin, and Judge Oliver,(i.e.the “Government Moving Defendants”)filed a motion to dismiss

Plaintiff’s Amended Complaint. (Doc. 74.) On the same day, the CoreCivic Defendants filed

their motion to dismiss Plaintiff’s Amended Complaint. (Doc. 77). On August 4, 2020, Plaintiff

filed his opposition to Defendants’ motions to dismiss. (Doc. 87.) On December 18, 2020, the

Government Moving Defendants filed their reply to Plaintiff’s opposition. (Doc. 91.) The

CoreCivic Defendants did not file a reply.

Legal Standards

A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it,” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000), and a court can raise such an issue to dismiss a

case sua sponte, see Fountain v. Karim, 838 F.3d 129, 133 n.5 (2d Cir. 2016). While a district

court resolving a motion to dismiss under Rule 12(b)(1) “must take all uncontroverted facts in

the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting

jurisdiction,” “where jurisdictional facts are placed in dispute, the court has the power and

obligation to decide issues of fact by reference to evidence outside the pleadings, such as

affidavits,” in which case “the party asserting subject matter jurisdiction has the burden of

proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina of

Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration, internal quotation marks, and

citation omitted). Finally, “[a]court must liberally construe a pro se litigant’s papers when

considering a motion to dismiss under Rule 12(b)(1).” Jones v. Nat’l Commun. & Surveillance

Networks, 409 F. Supp. 2d 456, 465-66 (S.D.N.Y. 2006) (Soto v. Walker, 44 F.3d 169, 173 (2d

Cir. 1995)). “Notwithstandingtheliberal pleading standard afforded prose litigants, federal

courts are courts of limitedjurisdictionand may not preside over cases if subject

matterjurisdiction is lacking.” Chestnut v. Wells Fargo Bank, N.A.,No. 11 Civ. 5369, 2012 WL

1657362, at *3 (E.D.N.Y. May 7, 2012) (citing Lyndonville Sav.Bank & Trust Co.v.

Lussier,211 F.3d 697, 700–01 (2d Cir.2000).

B. Rule 12(b)(2)

Acourt may “turn[] directly to personal jurisdiction” to dismiss an action where it faces

“a straightforward personal jurisdiction issue” that “present[s] no complex question of state law.”

See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999). A plaintiff opposing a motion

to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) “bears the burden of

demonstrating personal jurisdiction over a person or entity against whom it seeks to bring

suit.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010) (citing In re

Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2dCir. 2003) (per curiam)). To survive

such a motion, a plaintiff must make a prima facie showing that jurisdiction exists.” Eades v.

Kennedy, PC Law Offices, 799 F.3d 161, 167–68 (2d Cir. 2015) (quotingLicci ex rel. Licci v.

Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013). This showing may be made

through materials outside the pleadings, such as affidavits submitted by parties,see DiStefano v.

Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001), andit “must include an averment of facts

that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the

defendant,”In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013)

(quotingChloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)).

Plaintiff’s averments “must be taken as true to the extent they are uncontroverted by the

defendant’s” submissions. MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012) (internal

quotation marks omitted). The court, however, “will not draw argumentative inferences in the

plaintiff’s favor,nor must [a court] accept as true a legal conclusion couched as a factual

allegation.” In re Terrorist Attacks, 714 F.3d at 673 (internal citations and quotationmarks

omitted).

C. Rule 12(b)(5)

Rule 12(b)(5) authorizes a court to dismiss a complaint for insufficient service of

process prior to a defendant filing an answer. SeeFed. R. Civ. P.12(b)(5). “In deciding

a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the content, issuance, and

service of a summons.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y.

2010). Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is

filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action

without prejudice against that defendant or order that service be made within a specified time.”

Fed. R. Civ. P. 4(m). If the plaintiff is able to demonstrate good cause, the court must grant the

plaintiff an extension of time for service. See id. Even where a plaintiff does not show good

cause, “district courts have disrection to grant extensions” toeffect adequate service. Zapata v.

City of New York, 502 F.3d 192, 196 (2d Cir. 2007); see alsoGeorge v. Prof’l Disposables Int’l,

Inc., 221 F. Supp. 3d 428, 433 (S.D.N.Y. 2016) (“In certain circumstances, a court may grant an

extension under Rule 4(m) even absent a showing of good cause, but this power is

discretionary[.]”).

When a defendant moves for dismissal for inadequate service of process, the plaintiff

“bears the burden of proving inadequate service.” George,221F. Supp. 3dat 442. In

considering the motion, the court “must look to matters outside the complaint,” including

affidavits and supporting materials, to determine whether service was proper. Mende v.

Milestone Tech., Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y. 2003).

D. Rule 12(b)(6)

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim will have “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.” Id. This standard demands “more than a sheer possibility

that a defendant has acted unlawfully.”

In considering a motion to dismiss, a court must accept as true all well-pleaded facts

alleged in the complaint and must draw all reasonable inferences in the plaintiff’s favor.

Kassner,496 F.3d at 237 (2d Cir. 2007). A complaint need not make “detailed factual

allegations,” but it must contain more than mere “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal quotation marks

omitted). Finally, although all allegations contained in the complaint are assumed to be true, this

tenet is “inapplicable to legal conclusions.” Id. A complaint is “deemed to include any written

instrument attached to it as an exhibit or any statements or documents incorporated in it by

reference.” Chambers, 282 F.3d at 152.

Even after Twombly and Iqbal, a “document filed pro se is to be liberally construed,”

Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus,551 U.S. 89,

94 (2007)), and pro se pleadings should be read “to raise the strongest arguments that they

suggest.” Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (quoting Jorgensen v. Epic/Sony

Records, 351 F.3d 46, 50 (2d Cir. 2003)); see alsoHughes v. Rowe, 449 U.S. 5, 9 (1980) (stating

that the submissions ofprose litigants are “held to less stringent standards than formal pleadings

drafted by lawyers” (internal quotation marks omitted)); Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.

1994) (recognizing that pro se litigants should be accorded “special solicitude”). However, pro

se status “does not exempt a party from compliance with relevant rules of procedural and

substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.

2006) (internal quotation marks omitted). Lastly, a courtmay dismiss a pro se complaint sua

sponte for failure to state a claim, as long as the plaintiff has been given an opportunity to be

heard. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp. 2d 303, 313 (S.D.N.Y.

2001) (citing Thomas v. Scully, 943 F.2d 259, 260 (2d Cir.1991)).

Discussion

A. Failure of Service

All Defendants should have been served by January 19, 2020. As of the filing of this

Opinion & Order, Plaintiff provides no evidence of service for 30 out of the 53 Defendants. In a

letter dated January 22, 2020,Plaintiff claimsthat he served “approximately 33 of the more than

50Defendants” named in this case,but admitted that “there will not be any additional service of

any additional Defendants.” (Doc. 50,at 1–2.)

“[P]laintiff’spro se status is noexcuse for failure to serve[.]” See Harper v. N.Y.C.

Admin.for Children’s Servs.,No. 09 Civ. 2468(JGK),2010 WL 23328at *4 (S.D.N.Y. Jan. 4,

2010). Although a court can exercise its discretionto afford pro se plaintiffs “a certain amount

of latitude,”pro se litigants are still required toat least “attempt to comply with procedural

rules.” Yadav v.Brookhaven Nat’l.Lab., 487 F. App’x 671, 672 (2d Cir. 2012). Here, I need

not exercise discretion to afford Plaintiff any leniency because Plaintiff has made clear that he

would not even attempt to serve the remaining Defendants. The only explanation Plaintiff

provides for the failure to serve was that “the FBI [was] instructing [the Defendants] to ‘refuse

service.’” (Doc. 50,at 2.) Plaintiff provides no support whatsoever for this conclusory, bare-

bones allegation; nor has he asked for any extension to complete service or sought any injunction

from me against the alleged “FBI interference.” I find no good cause that can excuse Plaintiff’s

failure to serve.

Accordingly,I must dismiss the claims againstthe following unserved Defendants upon

the motion from the Government Moving Defendants: James Comey, Aaron Ford, Steven Cline,

Paul Fishman, the Office of the Inspector General, Peter Elliott, Steven Dettlebach, Judge Eric

Clay, Judge Deborah Cook, Judge Bernice Donald, Judge Ronald Lee Gilman, Judge Karen

NelsonMoore,Judge Richard Suhrhenrich, and Judge Jane Stranch. (Gov. MTD,at 24.)5

Similarly, I must dismiss the claims against the following unserved Defendants upon the motion

from the CoreCivic Defendants: Laura Bedard, Jason Rupeka, Kurt Kampfer, Deborah Johnson,

and Arlene Glass. (CoreCivic MTD,at 13.)6

I further dismiss the claims againstthe unserved Defendants under Rule 4(m) sua sponte,

as they have not appeared in this case: Dr. Schmedlen, JudgeOliver, Judge Griffin,Denni

Terez, Carolyn Kucharski, Steven Jaeger, Gary Crim, the two John Doe defendants of USMS

5“Gov. MTD” refers to the memorandum of law in support of the Government Moving Defendants’ motion to

dismiss. (Doc. 75.)

There is no evidence from the docket that Judge Damon J. Keith was served, but the Government does not move on

behalf on Judge Keith to dismiss the case for insufficient service. Nevertheless, as will be explained later, the

claims against Judge Keith should be dismissed for lack of personal jurisdiction, or, alternatively, on the basis of

judicial immunity.

6“CoreCivic MTD” refers to the memorandum of law in support of CoreCivic Defendants’ motion to dismiss.

(Doc. 78.)

and one John/Jane Doe Defendant from FBI.7

B. Personal Jurisdiction

1. Applicable Law

Whether a foreign defendant can be sued in a federal court “is determined in accordance

with the law of the state where the court sits, with ‘federal law’ entering the picture only for the

purpose of deciding whether a state’s assertion of jurisdiction contravenes a constitutional

guarantee.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996)

(quoting Arrowsmith v. United Press Int’l, 320 F.2d 219, 223 (2d Cir. 1963) (en banc)). In

assessing whether personal jurisdiction exists,courts “engage in a two-part analysis,first

determining whether there is a statutory basis for exercising personal jurisdiction, and second

deciding whether the exercise of jurisdiction comports with due process.” BWP Media USA Inc.

v. Hollywood Fan Sites, LLC, 69 F. Supp. 3d 342, 349 (S.D.N.Y. 2014) (citing NAF Holdings,

LLC v. Li & Fung (Trading) Ltd., No. 10 CIV. 5762 PAE, 2013 WL 489020, at *7 (S.D.N.Y.

Feb. 8, 2013), vacated and remanded on other grounds, 801 F.3d 92 (2d Cir. 2015)).

Therefore, I will apply New York law in considering the statutory basis of personal

jurisdiction. See Metro. Life Ins. Co., 84 F.3d at 567. In New York, personal jurisdiction can be

based on “general jurisdiction” under N.Y. C.P.L.R.§301 or “long-arm jurisdiction,” also

known as specific jurisdiction, under N.Y. C.P.L.R.§302. See Noval Williams Films LLC v.

Branca, 128 F. Supp. 3d 781, 786 (S.D.N.Y. 2015). A court may exercise general jurisdiction

over an out-of-state defendant if the defendant engages “in ‘continuous, permanent, and

substantial activity in New York.’” Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d

7Because (1) the government doesnot indicate that it represents these unnamed Defendants or moves on their

behalf, and (2) Plaintiff has never attempted to identify these Defendants or asked for my assistance to identify these

Defendants, Itakethese unnamed Defendants as having not appeared in this case.

Cir. 2000) (quoting Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039,

1043 (2d Cir. 1990)); seeN.Y. C.P.L.R. § 301. If there is no general jurisdiction, a court may

exercise specific jurisdiction over an out-of-state defendant, in a matter that “arises out of” the

defendant’s activities in New York, if the defendant :

1. transacts any business within the state or contracts anywhere to supply goods or

services in the state; or

2. commits a tortious act within the state, except as to a cause of action for

defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property

within the state, except as to a cause of action for defamation of character arising

from the act, if he

(i) regularly does or solicits business, or engages in any other persistent

course of conduct, or derives substantial revenue from goods used or

consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the

state and derives substantial revenue from interstate or international

commerce;8

N.Y. C.P.L.R. § 302. If the court finds a statutory basis for personal jurisdiction, it will proceed

to the due process analysis, which requires that defendants have “certain minimum contacts with

[the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair

play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

“Minimum contacts must have a basis in ‘some act by which the defendant purposefully avails

itself of the privilege of conducting activities within the forum State, thus invoking the benefits

8N.Y. C.P.L.R. § 302(a)(4) also extends jurisdiction to a defendant who “owns, uses or possesses any real property

situated within the state.” For this provision to apply, the plaintiff’s “cause of action [must] arise[] out of the fact of

ownership, use or possession of New York realty.” Elsevier, Inc. v. Grossman, 77 F. Supp. 3d 331, 346 (S.D.N.Y.

2015). Although Plaintiff claims that his “valuables” in his apartment were taken away and seeks damages, (Am.

Compl. ¶¶218–20), these “valuables” are not real property, and, in any case, his causes of action do not ariseout of

the ownership, use, or possession of these “valuables.” See id. (“[I]t is not enough for the property to be related in

some way to the parties’dispute.”). Therefore, I do not consider jurisdiction under § 302(a)(4).

and protections of its laws.’” Asahi Metal Indus. Co., 480 U.S. at 109 (quoting Burger King

Corp., 471 U.S. at 475). However, “[i]f jurisdiction is statutorily impermissible, then the Court

need not reach the [constitutional analysis],” and must dismiss the lawsuit. Best Van Lines, Inc.,

490 F.3d at 244.

2. Application

Here, Plaintiff has not met his burden to establish a prima facie showing of personal

jurisdiction over the USAO Ohio Defendants, the Sixth Circuit Defendants, the CoreCivic

Defendants, the Defense Attorney Defendants,the John Doe Defendants from USMA, and J.C.

Holland.

Plaintiff alleges that: the USAO Ohio Defendants maliciously prosecuted him and

conspired to deprive him of his civil and constitutional rights, (Am. Compl. ¶¶ 100–04, 109);

Judge Polster and Judge Cole joined in this conspiracy by forcing him to undergo psychological

evaluation, fraudulently declaring him incompetent to stand trial, keeping him detained by

refusing to rule on his motions, and interfering with his lawsuit even after he was released from

prison,(id. ¶¶ 108–09, 113, 116, 130, 180, 191, 226–228); J.C. Holland, the John Doe U.S.

Marshals,and the CoreCivic Defendants joined in this conspiracy bydepriving him of his

medical prescriptions and locking him in“freezers” in an attempt tomurder him, (id. ¶¶ 114–

119, 138–143); and the Defense Attorney Defendants were all coerced or intimidated by the FBI

agentsintobetrayinghim or abandoninghis case, (id. ¶¶ 88–93, 186–89). Despite all of these

allegations,Plaintiff has made no allegation that any of these Defendantswere residents of New

York or engaged in any“continuous, permanent, and substantial activityin New York,” Wiwa,

226 F.3d at 95; see N.Y. C.P.L.R. § 301. Nor does he allege that any of these Defendants’

improper acts took place in New York,see § 302(a)(2), or arose out of business transacted in

New York, see § 302(a)(1), or that any of the Defendants regularly engagedin a persistent course

of conduct in New York, see § 302(a)(3)(i), or derivedsubstantial revenue from interstate

commerce, see § 302(a)(3)(ii).

Moreover, except for Judge Polster, Judge Oliver, and Judge Cole, Plaintiff has not

alleged any conduct bythe other SixthCircuit Defendants, not to mention any tie between them

and New York. Plaintiff does allege that Judge Cole made phone calls to Judge Reed in an

attempt tointerfere withPlaintiff’s New York State court case. Plaintiff recounts what he

imagines was a telephone conversation between the two judges. (See Am. Compl. ¶ 227 (“When

Judge R. Guy Cole contacted Judge Robert Reed, the conversation was extremely similar to the

following. . .”).) Plaintiff does not describe the source of his recitation of this conversation. I

need not speculate what source, if any, Plaintiff had for his detailed description of the

conversation,nor need I examine whether these allegationsshould be dismissedas “fanciful,

fantastic, or delusional,”Gallop, 642 F.3d at 368, because even taking them as true, these

allegations are not sufficient to establish specific jurisdiction over Judge Cole. It is well

established in New York that “telephone calls originatingoutside the state maynotconstitute

tortious acts‘commit[ted] within the state’” under N.Y. C.P.L.R. § 302(a)(2). Bank v. Green

BullionFin. Servs., LLC, 922 N.Y.S.2d 733, 735 (2ndDep’t 2011) (collecting cases); see also

Lantau Holdings, Ltd. v. Orient Equal Int’l Grp.,2017 NY Slip Op 30464(U), at 11–12 (Sup.

Ct.) (“Most of the New York courts have refused toapply[N.Y. C.P.L.R. § 302(a)(2)]toclaims

based on tortious statements that made their way to New York only by mail or telephone.”).

Because no other provisions under N.Y. C.P.L.R. § 302 apply here,I do not have personal

jurisdiction over Judge Cole.

Because Plaintiff has not established personal jurisdictionunder New York law over

these Defendants,I need not engage in the constitutional analysis,Best Van Lines, Inc., 490 F.3d

at 24, and must dismiss all claims against the following Defendants for lack of personal

jurisdiction: the USAO Ohio Defendants, the Sixth Circuit Defendants(except Judge Polster,

Judge Griffin, and Judge Oliver), the Defense Attorney Defendants, and J.C. Holland.9

C. Statute of Limitations

“Section1983does not provide a specific statute of limitations. Thus, courts apply

the statute of limitationsfor personal injury actions under state law.” Hogan v. Fischer, 738 F.3d

509, 517 (2d Cir. 2013). Accordingly, “Section1983actions in New York are subject to a three-

year statute of limitations,”Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015), whichis

triggered when a “plaintiff knows or has reason to know of the injury which is the basis of his

action,”Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994)) (quotingSingleton v. City of

New York, 632 F.2d 185, 191 (2d Cir. 1980)).

Plaintiff filed this action on October 21, 2019. (Doc. 1.) His last encounter with any NJ

Investigation Defendants alleged in the Amended Complaint occurredin November 2014, when

he sent a letter to Aaron Ford and James Comey informing them of the civil suit against the FBI

that Plaintiff was about to file. (Am. Compl. ¶ 77.) That letter was dated nearlyfive years

before the commencement of thisaction. All of the alleged conducts of the NJ Investigation

Defendants that might give rise to any causes of action took place more than three years before

the filing of this lawsuitor,in other words, outside the statute of limitations period.

Plaintiff fails to provide any basis to justify tolling the statute of limitations. Indeed, he

admitted that he has not, and would not, read “even one word of either of the Motions to

9Even for those Defendantswho have not appeared or moved to dismiss under Rule 12(b)(2), Plaintiff’s allegations

can hardlyestablish personal jurisdiction over any of them. However, I do not reach this issue sua sponte, as the

claims against those Defendants can be dismissed on other grounds.

Disimiss,” much less respond to Defendants’ statute of limitations defense. (MTD. Opp.,at 2.)10

Therefore, I must dismiss all claims against the NJ Investigation Defendants.

D. Immunity

1. Sovereign Immunity

a. The Claims against the Government Entity Defendants

It is well settled that “[t]he United States, as sovereign, is immune from suit save as it

consents to be sued[.]” AmBase Corp.v.UnitedStates, 731 F.3d 109, 118 (2d Cir. 2013)

(citation omitted). “[A]n action against a federal agency or federal officers in their official

capacities isessentially a suit against the United States[.]” Robinson v. Overseas Military Sales

Corp., 21 F.3d 502, 510 (2d Cir. 1994). Therefore, “in the context of a private party suit against

a Federal agency or officer —absent a waiver of sovereign immunity —subject matter

jurisdiction does not exist.” SEC v. Comm. on Ways & Means of the United States H.R., 161 F.

Supp. 3d 199, 216 (S.D.N.Y. 2015).

Here, Plaintiff brings § 1983 claims against the Government Entity Defendants and a

Bivens action against the DOJ.11 None of these claims can prevail. “Actions of the Federal

Government or its officers are exempt from the proscriptions of § 1983,” John’s Insulation, Inc.

v. Siska Const. Co., Inc., 774 F. Supp. 156, 161 (S.D.N.Y. 1991), and “Bivens actions . . . do not

lie against federal agencies,” Caraveo v. United States EEOC, 96 F. App’x 738, 740 (2d Cir.

2004); see also Robinson, 21 F.3d at 510(dismissing the pro se plaintiff’s Bivens action against

the federal agency under the doctrine of sovereign immunity). Therefore, these claims are

10“MTD Opp.” refers to Plaintiff’s opposition to Defendants’ motions to dismiss. (Doc. 87.)

11Plaintiff’s Bivens action against the FBI agents has beendismissed for lack of personal jurisdiction and for statute

of limitations. See infra.

dismissed.12

b. The Claim against Judge Reed

“The Eleventh Amendment bars federal jurisdiction over suits against nonconsenting

States, and so whether or not sovereign immunity bars a claim is properly decided under .. .Rule

12(b)(1).” Goonewardena v. New York, 475 F. Supp. 2d 310, 321 (S.D.N.Y. 2007) (internal

quotation marks omitted). “[A]s a general rule, state governments may not be sued in federal

court unless they have waived their Eleventh Amendment immunity,or unless Congress has

abrogated the states’ Eleventh Amendment immunity when acting pursuant to its authority under

Section 5 of the Fourteenth Amendment.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)

(internal quotation marks omitted). “[T]he immunity recognized by the Eleventh Amendment

extends beyond the states themselves to state agents and state instrumentalities that are,

effectively, arms of a state.” Id. (citation omitted).

“[T]he New York State Unified Court System is unquestionably anarm of the State”and

therefore entitled to sovereign immunityunder the Eleventh Amendment. Id. at 368. State

officials sued in their official capacity are likewise entitled to Eleventh Amendment sovereign

immunity because “the real party in interest in an official-capacity suit is the governmental entity

and not the named official.” Zahl v. Kosovsky,No. 08 Civ. 8308 LTS THK, 2011 WL 779784 at

*9(S.D.N.Y. Mar. 3, 2011) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)).

Judge Reed, sitting in the New York Supreme Court, is an officer of the New York State

Unified Court System. There is no indication, and Plaintiff does not argue,that the New York

12To the extent that I construe Plaintiff’s claims against the Government Entity Defendants as arising under the

Federal Tort Claims Act (“FTCA”), Plaintiff fails to allege that he has met the procedural requirements under 28

U.S.C. 2675, which requires that such a claim be first presented to the agency. See Collins v. United States, 996

F.3d 102, 109(2d Cir. 2021) (“The FTCA requires that a claimant exhaust all administrative remedies before filing a

complaint in federal district court. This requirement is jurisdictional and cannot be waived.”(quoting Celestine v.

Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).)

Supreme Court has waived its sovereign immunity or that Congress has abrogated such

immunity. Therefore, Plaintiff’s claim against Judge Reed in his official capacity, to the extent

that he does not seek purely prospective relief, is barred by the Eleventh Amendment. See e.g.

id.at *9(dismissing claims against state court judges under the Eleventh Amendment).

2. Judicial Immunity

“It is well settled that judges generally have absolute immunity from suits for money

damages for their judicial actions.” Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020). The

purpose of this immunity is to ensure that the judicial offers can be free to act upon their own

convictions “without apprehension of personal consequences.” Bliven v. Hunt, 579 F.3d 204,

209 (2d Cir. 2009) (citing Bradley v. Fisher, 80 U.S.335, 347(1871)). Even allegations of bad

faith or malice cannot overcome judicial immunity. Id. A judge will have absolute immunity

from claims brought against them in their individual capacity if the actions were taken in their

judicial capacityand not “in the complete absence of all jurisdiction.” See Zahl,2011 WL

779784at *9(quoting Mireles v. Waco, 502 U.S. 9, 11–12(1991)).

Judges, however, are not immune from liability for non-judicial actions or, in other

words, actions not taken in the judge’s judicial capacity. Id. (citing Mireles, 502 U.S. at 11.) In

determining whether an act by a judge is a “judicial” one, the courts take a “functional approach”

and lookat the nature of the act itself. Id. at 209–210. Factors include “whether it is a function

normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt

with the judge in his judicial capacity.” Id. (quoting Stump v. Sparkman, 435 U.S. 349, 362

(1978)). In determining whether a state judge’s act is judicial or extrajudicial,courts look at

state law. See Huminski v. Corsones, 396 F.3d 53, 76(2d Cir. 2005) (looking to state law to

determine whether the state judges acted in their judicial capacities); Shtrauch v. Dowd, 651 F.

App’x 72, 73–74 (2d Cir. 2016) (same). In New York, the “erroneous manner in which [the

court’s] jurisdiction was exercised,” or theimproper motive of the judges,“d[oes] not make the

act any less a judicial act,” although it mayhave affected the validity of the act. Tarter v. State,

503 N.E.2d 84, 86 (1986) (quoting Stump, 435 U.S. at 359).

Plaintiff alleges that the Sixth Circuit Defendants “entered into a conspiracy to prevent

[him] from being brought to trial.” However, the alleged “conspiracy” mainly involved Judge

Polster’s decisionstokeep him incarcerated, to declare him “incompetent to stand trial” before

dismissing the case and, presumably,the appellate judges’ ordersaffirmingthis decision. (Am.

Compl. ¶¶ 180, 191.) Suchdecisions are “function[s] normally performed by a judge,”Zahl,

2011 WL 779784 at *9. Plaintiff also alleges “judicial misconduct” which includes the Sixth

Circuit Defendants’failure to grant his various requests and motions, including his requests for

medicationand to disqualifyhis attorneys. (Id. ¶¶ 170, 176, 182.) Ruling on such motions are

also clearly within the judicial function. Therefore, the Sixth Circuit Defendants are immune

from suit in their individual capacity “however erroneous the act and however evil the motive”

might have been, Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 713 (S.D.N.Y. 2011)

(internal quotation marks omitted). Consequently, I dismiss the claims against the Six Circuit

Defendants who are among the Moving Government Defendants. Further, I sua sponte dismiss

the claims against Judge Polster, Judge Griffin and Judge Oliver, who are not among the Moving

Government Defendants, but who are otherwise clearly entitled to judicial immunity. See Deem

v. Dimella-Deem, 941 F.3d 618, 621 (2d Cir. 2019) (affirming the district court’s sua sponte

dismissal of claims against a judge, who was “clearly entitled to judicial immunity”);see also

DeJesus-Vasquez v. Bethencourt, No. 19-CV-967 (KMK), 2020 WL 1047909, at *7 (S.D.N.Y.

Mar. 4, 2020) (noting that a district court has “inherent authority to sua sponte dismiss frivolous

claims, even in pro se cases.”).

Plaintiff alleges that Judge Reed “threaten[ed] to declare him incompetent to bring a civil

suit,” and fined him $250 “for no legitimate reason whatsoever.” (Am. Comp. ¶¶ 221–22.)

Plaintiff does not allege that judges from the New York Supreme Court lack the authority to

declare someone “incompetent to bring a civil suit” or to impose sanctions on litigants, nor do I

find that such acts are beyond the scope of Judge Reed’s judicial function. Consequently, Judge

Reed is also immune from suit in his individual capacity, regardless of whether he exercised his

jurisdiction in an errouneous manneror withimproper motives. See Tarter, 503 N.E.2d at 86.

For the same reason above, I sua sponte dismiss the claims against Judge Reed.

Dismissal without Leave to Amend

While leave to amend the complaint should be freely given when dismissing a pro se

complaint sua sponte, the dismissal can be without leave to amend “for good reason, including

futility, bad faith, undue delay, or undue prejudice to the opposing party.”Eastman Kodak Co. v.

Henry Bath LLC, 936 F.3d 86, 98 (2d Cir. 2019) (citation omitted); see alsoPeterec-Tolino v.

New York, 364 F. App’x 708, 711 (2d Cir. 2010) (affirming district court’s sua sponte dismissal

under Rule 12(b)(6) of the pro se plaintiff’s claim because amendment would be futile). Courts

have denied leave to amend as futile where the claims are barred by applicable statute of

limitations or immunity. See Ferring B.V. v. Allergan, Inc., 4 F. Supp. 3d 612, 634 (S.D.N.Y.

2014) (denying leave to amend as futile because the claim was barred by statue of limitations); In

re IndyMac Mortg.-Backed Sec. Litig., 793 F. Supp. 2d 637, 650–51 (S.D.N.Y. 2011) (same);

Johnson v. N.Y.C. Police Dep’t, 651 F. App’x 58, 61 (2d Cir. 2016) (dismissing the pro se

plaintiff’s complaint without leave to amend where the dismissal was based on absolute

immunity, among other reasons); Ying Li v. City of N.Y., 246 F. Supp. 3d 578, 646 (E.D.N.Y.

2017) (denying leave to amend where the dismissal was based on absolute immunity and statute

of limitations). Further,courts have found leave to amend futile when they“lack personal

jurisdiction to litigate the matter.” Kommer v. Ford Motor Co., No. 17-CV-296 (LEK/DJS),

2019 WL 2895384, at *1(N.D.N.Y. June 19, 2019); see also Shenzhen OKT Lighting Co. v.

JLC-Tech LLC,2021 WL 4443637, at *12(S.D.N.Y. Sep. 28, 2021) (denying leave to amend as

futile after finding that the plaintiff failed to sufficiently allege personal jurisdiction over the

defendant);Taormina v. Thrifty Car Rental, No. 16-CV-3255 (VEC), 2016 WL 7392214, at *8

(S.D.N.Y. Dec. 21, 2016) (same).

Here, Plaintiff already had an opportunity to amend his complaint. Anyfurther

amendmentwould be futile because(1) Plaintiff has failed to timely serve or establish personal

jurisdiction over many of the Defendants, and (2)Plaintiff would not be able to present sufficient

allegations to make out any claim against the rest of the Defendants given the fanciful, fantastic,

and delusional nature of his allegations. Therefore, I decline to sua sponte grant leave to amend.

See Rodriguez v. Lahar, No. 15-CV-3446 (CS), 2016 WL 5376217, at *4(S.D.N.Y. Sep. 26,

2016) (declining to sua sponte grant leave to amend where the pro se plaintiff had already had an

opportunity to amend and “better pleading will not fix” the problem with the claim).

Conclusion

For the reasons above, Defendants’ motions to dismiss are hereby GRANTED and

Plaintiff’s Amended Complaint is dismissed in its entirety. The Clerk of Court is respectfully

directed to mail a copy of this order to the pro se Plaintiff and terminate the case.

SO ORDERED.

Dated: March 28, 2022

New York, New York ,

Yo Bg

LAMB TIO a

Vernon S. Broderick

United States District Judge

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