Hilts v. Ellis Hospital

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JAHEEM R. HILTS,

Plaintiff,

v. 1:24-CV-0614 (AMN/ML)

ELLIS HOSP.; A NURSE, name unknown

at the moment at Ellis Hosp.; and

SHANTANU BAGHEL, D.O. Doctor

Provider at Ellis Hosp.,

Defendants.

APPEARANCES: OF COUNSEL:

Jaheem R. Hilts

845 Broadway, Apt. 324

Schenectady, New York 12305

Plaintiff, pro se

Hon. Anne M. Nardacci, United States District Judge:

ORDER

I. INTRODUCTION

On May 3, 2024, Plaintiff pro se Jaheem R. Hilts commenced this action using a form

complaint that alleges that his civil rights were violated by Defendants Ellis Hospital, a nurse, and

Shantanu Baghel (collectively “Defendants”). Dkt. No. 1. Plaintiff did not pay the filing fee and

sought leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. This matter was referred to

Magistrate Judge Lovric, who, on May 23, 2024, denied Plaintiff’s motion for leave to proceed

IFP on the ground that the application was incomplete. Dkt. No. 5. On June 3, 2024, Plaintiff

filed a revised IFP application. Dkt. No. 6.

On July 25, 2024, Magistrate Judge Lovric issued an Order and Report-Recommendation

(i) granting Petitioner’s renewed IFP request; and (ii) recommending that Plaintiff’s Complaint,

Dkt. No. 1, be dismissed with leave to amend (“Report-Recommendation”). Dkt. No. 7.

Magistrate Judge Lovric advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen days

within which to file written objections and that failure to object to the Report-Recommendation

within fourteen days would preclude appellate review. Dkt. No. 7 at 10.1 Plaintiff filed an

objection on August 2, 2024. Dkt. No. 8.

For the reasons set forth below, the Court rejects Plaintiff’s objection and adopts the

Report-Recommendation in its entirety.

II. STANDARD OF REVIEW

This Court reviews de novo those portions of a magistrate judge’s report-recommendation

that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223,

228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections have been filed, this

Court reviews a magistrate judge’s report-recommendation for clear error. See Petersen, 2 F.

Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition).

Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge,

this Court reviews the relevant portions of the report-recommendation for clear error. See

Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). “When performing such a ‘clear error’

review, ‘the court need only satisfy itself that there is no clear error on the face of the record in

order to accept the recommendation.’” Dezarea W. v. Comm'r of Soc. Sec., No. 6:21-CV-01138

(MAD/TWD), 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm’r of

1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic

filing system.

Soc. Sec., No. 1:17-CV-0367 (GTS/WBC), 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,

2017)).

“[I]n a pro se case, the court must view the submissions by a more lenient standard than

that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289,

295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations

omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances

to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a

legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a

pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at

particular findings in the magistrate’s proposal . . . .” Machicote v. Ercole, No. 06-cv-13320, 2011

WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No.

22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the

court may accept, reject or modify, in whole or in part, the findings or recommendations made by

the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

III. DISCUSSION

The Court adopts all aspects of the Report-Recommendation, finding no clear error therein.

Plaintiff has not raised a specific objection as to the background, the legal framework, or

the analysis set forth in the Report-Recommendation, familiarity with which is presumed for

purposes of this decision. Plaintiff’s objection does not take issue with the Report-

Recommendation’s interpretation of the Complaint’s allegations, including the Report-

Recommendation’s assumption that the unnamed hospital detailed in the Complaint is Ellis

Hospital. See Dkt. No. 7 at 2 n.2. Nor does Plaintiff’s objection take issue with the Report-

Recommendation’s reasoning regarding Plaintiff’s failure to plausibly suggest Defendants are

state actors for purposes of sustaining an action under 42 U.S.C. § 1983. See Dkt. No. 7 at 5.

Instead, Plaintiff’s sole objection reiterates that Plaintiff “was not in The Mental Health System

[sic],” and that he “came from Colorado [sic] forced to take medications.” Dkt. No. 8. These

factual allegations were included in the Complaint and were considered by Magistrate Judge

Lovric in the drafting of the Report-Recommendation. See Dkt. No. 1 at 2. Even construed

liberally, Plaintiff’s objection merely “rehashes” the arguments and allegations found in the

Complaint, and thus, Plaintiff makes no specific objection. See Petersen, 2 F. Supp. 3d at 228-29

& n.6 (collecting cases).

Therefore, finding no specific objection, this Court reviews the Report-Recommendation

for clear error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory

Committee Notes: 1983 Addition).

The Court finds no clear error in Magistrate Judge Lovric’s analysis. In the Report-

Recommendation, Magistrate Judge Lovric appropriately applied the legal standard for review of

a pro se complaint under 28 U.S.C. § 1915(e)(2)(B). See Dkt. No. 7 at 3, 5 (citing, inter alia,

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) and Sealed Plaintiff v. Sealed Defendant, 537 F.3d

185, 191 (2d Cir. 2008)). Magistrate Judge Lovric determined that the allegations in Plaintiff’s

Complaint do not state a claim under 42 U.S.C. § 1983 because Defendants are private actors

whose conduct is “beyond the reach of § 1983.”2 Magistrate Judge Lovric also determined that

Plaintiff fails to plead facts capable of suggesting the private Defendants’ actions should be treated

as those of the State itself for purposes of maintaining an action under 42 U.S.C. § 1983.3 The

2 See Dkt. No. 7 at 7 (quoting Revill v. Pratz, 24-CV-2782, 2024 WL 1908587, at *4 (E.D.N.Y.

May 1, 2024)).

3 See Dkt. No. 7 at 6 (citing Holyoke v. S.S.I., 23-CV-1557, 2024 WL 3063679, at *3 (N.D.N.Y.

June 20, 2024), and Elisens v. Auburn Cmty. Hosp., 19-CV-1236, 2021 WL 1027915, at *2

(N.D.N.Y. Mar. 17, 2021)).

Court agrees with this assessment of Plaintiff’s Complaint under 42 U.S.C. § 1983.

Magistrate Judge Lovric expressed “serious doubts” that Plaintiff could amend the

Complaint to assert actionable claims. Dkt. No. 7 at 8. Nevertheless, in deference to Plaintiff’s

pro se status, he recommended that Plaintiff’s Complaint be dismissed with leave to amend. Id.

The Court agrees that Plaintiff should be granted an opportunity to amend the complaint. See

Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“Generally, leave to amend should be freely

given, and a pro se litigant in particular should be afforded every reasonable opportunity to

demonstrate that he has a valid claim.”) (citation omitted); Bruce v. Tompkins Cty. Dep’t of Soc.

Servs. ex rel. Kephart, No. 5:14-CV-0941 (GTS/DEP), 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7,

2015) (“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’”) (quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)).

Having reviewed the Report-Recommendation for clear error and found none, the Court

adopts the Report-Recommendation in its entirety.4

IV. CONCLUSION

Accordingly, the Court hereby

ORDERS that the Report-Recommendation, Dkt. No. 7, is ADOPTED in its entirety; and

the Court further

ORDERS that the Complaint, Dkt. No. 1, is DISMISSED without prejudice and with

leave to amend; and the Court further

4 The Court reiterates Magistrate Judge Lovric’s admonition to Plaintiff that an amended complaint

or submission to this Court must set forth specific allegations of fact indicating a deprivation of

rights. See Dkt. No. 7 at 8.

ORDERS that Plaintiff shall file an amended complaint within THIRTY (30) DAYS of

the filing date of this Order; and the Court further

ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of this

Order, the Clerk of the Court shall enter judgment in Defendants’ favor and close this case without

further order of this Court; and the Court further

ORDERS that the Clerk serve a copy of this Order on Plaintiff in accordance with the

Local Rules.°

IT IS SO ORDERED.

Dated: August 14, 2024 Oued V). Jar

Albany, New York Anne M. Nardacci

U.S. District Judge

> The Clerk shall also provide Plaintiff with copies of all unreported decisions herein.

2023 WL 2552452 Recommendation. When a party declines to file an objection,

Only the Westlaw citation is currently available. the court reviews a recommendation for clear error. See

United States District Court, N.D. New York. McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y.

2007). After the appropriate review, “the court may accept,

DEZAREA W., Plaintiff, reject or modify, in whole or in part, the findings or

v. recommendations made by the magistrate [judge].” 28 U.S.C.

COMMISSIONER OF SOCIAL SECURITY, Defendant. § 636(b)(1). “When performing such a ‘clear error’ review,

‘the court need only satisfy itself that there is no clear error on

6:21-CV-01138 (MAD/TWD) the face of the record in order to accept the recommendation.’

| ” Canady v. Comm'r of Soc. Sec., No. 1:17-CV-0367, 2017

Signed March 17, 2023 WL 5484663, *1 n.1 (N.D.N.Y. Nov. 14, 2017) (citing Fed.

R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition;

Attorneys and Law Firms Batista v. Walker, No. 94-CV-2826, 1995 WL 453299, *1

(S.D.N.Y. July 31, 1995)).

DEZAREA W., P.O. Box 597, Oriskany, New York 13424,

Plaintiff, pro se.

Having reviewed the Report-Recommendation, the Court

JASON P. PECK, ESQ., SOCIAL SECURITY concludes that Magistrate Judge Dancks correctly determined

ADMINISTRATION, 6401 Security Boulevard, Baltimore, that the Court should reverse the Commissioner's decision and

Maryland 21235, Attorneys for Defendant. remand for further proceedings. Here, the ALJ impermissibly

“cherry-picked” the records from Dr. Dhiman and other

medical evidence, see Dkt. No. 10 at 25-28, “without

providing relevant context and ignored many entries to the

ORDER

contrary in the RFC determination.” See Dkt. No. 19 at 15.

Mae A. D'Agostino, United States District Judge: The ALJ did not provide a “ ‘logical bridge’ ” between

the evidence and her conclusions as to Plaintiff's RFC.

*1 On February 13, 2019, Plaintiff Dezarea W. (“Plaintiff”) See Gutowski v. Comm'r of Soc. Sec., No. 17-CV-1246,

filed for Disability Insurance Benefits. See Dkt. No. 10 at 275, 2019 WL 2266796, *4 (W.D.N.Y. May 28, 2019) (quotation

188, 19. Plaintiff's claim was denied by the agency on May omitted). As Magistrate Judge Dancks noted, “[w]here [the

23, 2019, and again upon reconsideration on August 19, 2019. court is] ‘unable to fathom the ALJ's rationale in relation

See id. at 6, 144. Following hearings, on January 22, 2021, to the evidence in the record, especially where credibility

Administrative Law Judge (“ALJ”) Robyn L. Hoffman issued determinations and inference drawing is required of the

an unfavorable decision. See id. at 16-18. Plaintiff appealed, ALJ,’ [the court] will not ‘hesitate to remand for further

and on August 16, 2021, the Appeals Council denied review. findings or a clearer explanation for the decision.’ ” Cichocki

See id. at 6-9. v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (internal citations

omitted). Therefore, remand is warranted for the ALJ to

On October 20, 2021, Plaintiff commenced this action articulate how she relied on or rejected evidence, and how

pursuant to 42 U.S.C. § 405(g) to review the Commissioner's she reached Plaintiff's RFC determination. See Estrella v.

unfavorable decision. See Dkt. No. 1. Plaintiff submitted Berryhill, 925 F.3d 90, 96-97 (2d Cir. 2019) (ordering remand

a brief arguing that the ALJ incorrectly addressed medical “[w]hen viewed alongside the evidence of the ... nature of

opinions and inconsistencies in the record. See Dkt. No. [Plaintiff's disability], the ALJ's two cherry-picked treatment

15 at 1-2.1 Defendant opposed the motion, arguing that notes do not provide ‘good reasons’ for minimalizing [the

Plaintiff's allegations regarding her pain are not supported by treating physician's] opinion”).

the record. See Dkt. No. 16 at 3-12. On February 13, 2023,

Magistrate Judge Dancks issued a Report-Recommendation,

recommending reversal of the Commissioner's decision and IV. CONCLUSION

remand for further proceedings. See Dkt. No. 19 at 23-24.

the entire record in this matter, and the applicable law, the ORDERS that the Clerk of the Court shall enter judgment in

Court hereby Plaintiff's favor and close this case; and the Court further

ORDERS that Magistrate Judge Dancks’ Report- ORDERS that the Clerk of the Court shall serve a copy of

Recommendation (Dkt. No. 19) is ADOPTED in its entirety this Order on the parties in accordance with the Local Rules.

for the reasons set forth herein; and the Court further

IT IS SO ORDERED.

ORDERS that the Commissioner's decision is REVERSED,

and this case is REMANDED, pursuant to sentence four All Citations

of 42 U.S.C. § 405(g), for further proceedings consistent

with this Order and Magistrate Judge Dancks’ Report- Not Reported in Fed. Supp., 2023 WL 2552452

Recommendation; and the Court further

Footnotes

1 Specifically, Plaintiff submitted a brief recounting that the Social Security Administration's medical expert

Dr. Dhiman determined other physicians’ opinions, including Dr. Finocchiaro's, the treating physician, to be

correct. However, Plaintiff argues it was an error when Dr. Dhiman then contradicted these medical opinions

in determining how long Plaintiff can sit, stand, and walk. See Dkt. No. 15 at 1-2; Dkt. No. 10 at 79. Magistrate

Judge Therese Wiley Dancks construed the brief as arguing that the ALJ's Residual Functional Capacity

(“RFC”) determination was not supported by substantial evidence. See Dkt. No. 19 at 9.

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2017 WL 5484663 that the Commissioner’s decision denying Plaintiff Social

Only the Westlaw citation is currently available. Security benefits be affirmed, and that Plaintiff’s Complaint

United States District Court, N.D. New York. be dismissed. (Dkt. No. 15.) Objections to the Report-

Recommendation have not been filed and the time in which

Angela J. CANADY, Plaintiff, to do so has expired. (See generally Docket Sheet.)

v.

COMMISSIONER OF SOCIAL SECURITY, Defendant. After carefully reviewing all of the papers herein,

including Magistrate Judge Carter’s thorough Report-

1:17-CV-0367 (GTS/WBC) Recommendation, the Court can find no clear error in

| the Report-Recommendation.1 Magistrate Judge Carter

Signed 11/14/2017 employed the proper legal standards, accurately recited the

facts, and correctly applied the law to those facts. (Dkt.

Attorneys and Law Firms

No. 15.) As a result, the Commissioner’s decision denying

OFFICE OF STEPHEN J. MASTAITIS, JR., Counsel for Plaintiff Social Security benefits is affirmed, and Plaintiff’s

Plaintiff, OF COUNSEL: STEPHEN J. MASTAITIS, ESQ., Complaint is dismissed.

1412 Route 9P, Saratoga Springs, New York 12866

ACCORDINGLY, it is

SOCIAL SECURITY ADMINISTRATION OFFICE OF

GENERAL COUNSEL–REGION II, Counsel for Defendant, ORDERED that Magistrate Judge Carter’s Report-

OF COUNSEL:SUSAN J. REISS, ESQ., Special Assistant Recommendation (Dkt. No. 15) is ACCEPTED and

U.S. Attorney, 26 Federal Plaza, Room 3904, New York, New ADOPTED in its entirety; and it is further

York 10278

ORDERED that the Commissioner’s decision denying

Plaintiff Social Security benefits is AFFIRMED, and that

DECISION and ORDER Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.

HON. GLENN T. SUDDABY, Chief United States District

Judge All Citations

*1 The above matter comes to this Court following a Report- Not Reported in Fed. Supp., 2017 WL 5484663

Recommendation by United States Magistrate Judge William

Footnotes

1 When no objection is made to a report-recommendation, the Court subjects the report-recommendation to

only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing

such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record

in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at

*1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]

report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal

quotation marks and citations omitted).

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2011 WL 3809920 1712, 90 L.Ed.2d 69 (1986), and preemptory challenges

Only the Westlaw citation is currently available. guaranteed by New York state law can not be challenged

United States District Court, by federal habeas corpus review; and (3) in-court statements

S.D. New York. challenged by Petitioner were not hearsay because they

were admitted to establish the witnesses state of mind, and

Shawn MACHICOTE, Petitioner, review of the Petitioner's Confrontation Clause claim is

v. barred because of procedural default during the state court

Robert E. ERCOLE, Superintendent, Respondent. proceedings. Petitioner filed untimely objections to Judge

Francis' Report, which the Court will nevertheless consider.

No. 06 Civ. 13320(DAB)(JCF).

| For the reasons set forth below, Judge Francis' Report is

Aug. 25, 2011. adopted in its entirety, and Petitioner's Petition for the writ of

habeas corpus is HEREBY DENIED.

ADOPTION OF REPORT AND RECOMMENDATION

DEBORAH A. BATTS, District Judge.

II. DISCUSSION1

A. Objections to the Report and Recommendation

I. BACKGROUND “Within fourteen days after being served with a copy

[of a Magistrate Judge's Report and Recommendation], a

*1 Now before the Court is pro se Petitioner Shawn party may serve and file specific written objections to the

Machicote's November 20, 2006 Petition for writ of habeas proposed findings and recommendations.” Fed.R.Civ.P. 72(b)

corpus pursuant to 28 U.S.C. § 2254 (the “Petition”), (2); accord 28 U.S.C. s 636(b)(1)(C). The court may adopt

challenging his conviction in New York State Supreme Court, those portions of the Report to which no timely objection has

New York County, for murder in the second degree. Petitioner been made, as long as there is no clear error on the face of the

alleges that: (1) his right to due process was violated by the record. Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163,

admission into evidence of statements he made to detectives 169 (S.D.N.Y.2003). A district court must review de novo

while incarcerated in North Carolina on unrelated charges; “those portions of the report or specified proposed findings

(2) his rights to a fair trial, due process, and equal protection or recommendations to which objection is made.” 28 U.S.C.

were violated when the trial court overruled defense counsel's § 636(b)(1)(C).

preemptory challenges against prospective jurors; and (3) his

Sixth Amendment right to confront witnesses against him *2 “To the extent, however, that the party makes only

was violated by the introduction at trial of hearsay statements conclusory or general arguments, or simply reiterates the

from a witness. (Report at 1.) On December 8, 2006, the original arguments, the Court will review the Report strictly

Petition was referred to United States Magistrate Judge James for clear error.” Indymac Bank, F.S.B. v. Nat'l Settlement

C. Francis IV for a report and recommendation. Agency, Inc., 2008 WL 4810043, at *1 (S.D.N.Y. Nov.3,

2008); see also Ortiz v. Barkley, 558 F.Supp.2d 444, 451

Judge Francis' January 18, 2008, Report and (S.D.N.Y.2008) (“Reviewing courts should review a report

Recommendation (the “Report”) recommends that and recommendation for clear error where objections are

Petitioner's habeas corpus Petition be denied. (Report at 1.) merely perfunctory responses, argued in an attempt to engage

Specifically, Judge Francis recommends that the Petition the district court in a rehashing of the same arguments set

be denied because: (1) statements Petitioner made while forth in the original Petition.”) (citation and internal quotation

incarcerated in North Carolina were not made under coercion marks omitted). After conducting the appropriate levels of

beyond the mere fact of imprisonment, and the state court's review, the Court may accept, reject, or modify, in whole or in

decision to admit those statements was not contrary to, part, the findings or recommendations made by the Magistrate

and did not involve the unreasonable application of, clearly Judge. 28 U.S.C. § 636(b)(1)(C).

established federal law; (2) proper procedure was employed

by the state court in overruling defense counsel's preemptory

leniency and should be construed to raise the strongest law,” limits the law governing a habeas Petitioner's claims

arguments that they suggest.” Howell v. Port Chester Police “to the holdings, as opposed to the dicta, of [the Supreme]

Station, 2010 WL 930981, at *1 (S.D.N.Y. Mar.15, 2010) Court's decisions as of the time of the relevant state-court

(citation omitted). “Nonetheless, even a pro se party's decision.” Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649,

objections to a Report and Recommendation must be specific 166 L.Ed.2d 482 (2006) (quoting Williams, 529 U.S. at 365);

and clearly aimed at particular findings in the magistrate's accord Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006).

proposal, such that no party be allowed a second bite

at the apple by simply relitigating a prior argument.” Id. *3 “The ‘unreasonable application’ standard is independent

(quoting Pinkney v. Progressive Home Health Servs., 2008 of the ‘contrary to’ standard ... [and] means more than

WL 2811816 (S.D.N.Y. July 21, 2008) (internal quotations simply an ‘erroneous' or ‘incorrect’ application” of federal

marks omitted)). law.” Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005) (citing

Williams, 529 U .S. at 410). A state court decision is based on

On April 29, 2008, Petitioner filed untimely objections2 an “unreasonable application” of Supreme Court precedent if

to Judge Francis' Report (the “Objections”). Reading it correctly identifies the governing legal rule, but applies it

Petitioner's letter in the most lenient manner possible. in an unreasonable manner to the facts of a particular case.

Petitioner objects to Judge Francis' rejection of Petitioner's See Williams, 529 U.S. at 413. The inquiry for a federal

Confrontation Clause claim on the grounds that ineffective habeas court is not whether the state court's application of the

assistance of counsel cures the procedural default in that governing law was erroneous or incorrect, but, rather, whether

claim. it was “objectively unreasonable.” Id. at 408–10; see also

Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001) (“[A] federal

Petitioner did not object to Judge Francis' Report on Miranda habeas court is not empowered to grant the writ just because,

and Batson claims and, accordingly, the Court will review in its independent judgment, it would have decided the federal

these issues only for clear error. Indymac Bank, F.S.B., 2008 law question differently. The state court's application must

WL 4810043, at *1. Because Petitioner objected to Judge reflect some additional increment of incorrectness such that it

Francis' recommendation on the Confrontation Clause claim, may be said to be unreasonable.”).

the Court will review that claim de novo. 28 U.S.C. § 636(b)

(1)(C). Moreover, under the AEDPA, “a determination of a factual

issue made by a State court shall be presumed to be

correct. The [Petitioner] shall have the burden of rebutting

B. Legal Standard the presumption of correctness by clear and convincing

Under the Anti–Terrorism and Effective Death Penalty Act evidence.” 28 U.S.C. § 2254(e) (1); see also Parsad v.

(“AEDPA”), a federal court may grant habeas relief to a state Greiner, 37 F.3d 175, 181 (2d Cir.2003) (“This presumption of

prisoner only if a state court conviction “resulted in a decision correctness is particularly important when reviewing the trial

that was contrary to, or involved an unreasonable application court's assessment of witness credibility.”). A state court's

of, clearly established Federal law, as determined by the findings “will not be overturned on factual grounds unless

Supreme Court of the United States,” 28 U.S.C. § 2254(d) objectively unreasonable in light of the evidence presented in

(1), or if it “was based on an unreasonable determination of the state-court proceeding.” Miller–El v. Cockrell, 537 U.S.

the facts in light of the evidence presented in the State court 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

proceeding.” Id. § 2254(d)(2).

A state court decision is “contrary to” clearly established C. Miranda Claim

federal law “if the state court arrives at a conclusion opposite Judge Francis found that statements Petitioner made while

to that reached by [the Supreme Court] on a question of law or incarcerated in North Carolina were not made under coercion

if the state court decides a case differently than [the Supreme beyond the mere fact of imprisonment, and the state court's

Court] has on a set of materially indistinguishable facts.” decision to admit those statements was not contrary to,

Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, and did not involve the unreasonable application of, clearly

146 L.Ed.2d 389 (2000); accord Hoi Man Yung v. Walker, 468 established federal law. After reviewing Judge Francis'

F.3d 169, 176 (2d Cir.2006); Ernst J. v. Stone, 452 F.3d 186, findings for clear error on the face of the record, the Court

DENIED. Ms. Arthur's testimony failed to reference any constitutional

grounds for the objection. People v. Machicote, 23 A.D.3d

at 265, 804 N.Y.S.2d at 78 (“To the extent that defendant is

D. Batson Ruling and Peremptory Challenges Claim raising a constitutional claim, such claim is unpreserved and

Judge Francis found that proper procedure was employed by we decline to review it in the interest of justice.”).

the state court in overruling defense counsel's preemptory

challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. Under New York's contemporaneous objection rule, an issue

1712, 90 L.Ed.2d 69 (1986), and that peremptory challenges is properly preserved for appellate review only if the party

are guaranteed by New York state law, not federal law, and raised an objection at trial. N.Y. C.P.L. § 470.05(2). Even

thus cannot be challenged under federal habeas corpus review. if there is an objection to the admission of testimony at

After reviewing Judge Francis' findings for clear error on trial, to preserve a constitutional claim grounded on the

the face of the record, the Court ADOPTS Judge Francis' Confrontation Clause, New York law demands that counsel

recommendation that the Petitioner's Petition for the writ of specify the constitutional dimension of the objection. E.g.,

habeas corpus on this claim be DENIED. People v. Quails, 55 N.Y.2d 733, 734, 431 N.E.2d 634, 635,

447 N.Y.S.2d 149, 150 (1981). “If a state appellate court

refuses to review the merits of a criminal defendant's claim of

E. Confrontation Clause Claim

constitutional error because of his failure to comply with ... a

1. Procedural Default * contemporaneous objection' rule, a federal court generally

*4 Judge Francis recommends that Petitioner's may not consider the merits of the constitutional claim on

Confrontation Clause claim be barred because of procedural habeas corpus review.” Peterson v. Scully, 896 F.2d 661, 663

default during the state court proceedings, and even if (2d Cir.1990); see also Wainwright v. Sykes, 433 U.S. 72, 82–

Petitioner's Confrontation Clause claim was not barred, it 86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Garcia v. Lewis,

would fail on the merits. 188 F.3d 71, 78–79 (2d Cir.1999).

Petitioner contends that the admission of Stephanie Arthur's Here, Petitioner's trial counsel objected to Ms. Arthur's

testimony regarding out of court statements identifying testimony at trial, but counsel made no mention of Petitioner's

Petitioner as the shooter violated his Sixth Amendment right right to confront witnesses, or any constitutional grounds for

to confront witnesses against him.3 The Respondent argues his objection. Counsel's primary reason for objecting was only

that Ms. Arthur could not independently identify Petitioner as

that this claim is procedurally defaulted because the Petitioner

the shooter and that her entire testimony should be stricken on

did not clearly raise it as an objection, on constitutional

that basis. (Tr. at 431–36). Therefore, the Appellate Division's

grounds, during trial.

holding that any constitutional claim was not preserved for

review is not contrary to, or an unreasonable application of,

A procedural default generally bars a federal court from

clearly established federal law.

reviewing the merits of a habeas claim. Wainwright v. Sykes,

433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Federal

*5 A federal habeas court may not review a prisoner's

habeas review is prohibited if a state court rests its judgment

claim if that claim was procedurally defaulted in state court

on a state law ground that is “independent of the federal

“unless the prisoner can demonstrate cause for the default and

question and adequate to support the judgment.” Cotto v.

actual prejudice as a result of the alleged violation of federal

Hebert, 331 F.3d 217, 238 (2d Cir.2003) (quoting Coleman

law.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct.

v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115

2546, 115 L.Ed.2d 640 (1991). Excuse of procedural default

L.Ed.2d 640 (1991)). A state procedural bar qualifies as an

requires a showing that some external impediment actually

“ ‘independent and adequate’ state law ground where ‘the

prevented counsel from raising the claim. McCleskey v. Zant,

last state court rendering a judgment in the case clearly and

499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991);

expressly states that its judgment rests on a state procedural

Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91

bar.’ “ Levine v. Commissioner of Correctional Services, 44

L.Ed.2d 397 (1986). A petitioner suffers actual prejudice if

F.3d 121, 126 (2d Cir.1995) (quoting Harris v. Reed, 489

the outcome of the case would likely have been different had

U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)).

the alleged constitutional violation not occurred. See Reed v.

Trottie v. Mantello, No. 98 Civ. 5581, 1999 WL 187202, at *4 a motion to vacate judgment that Petitioner filed in state

(S.D.N.Y. April 6, 1999). court, alleging ineffective assistance of counsel. Ineffective

assistance of counsel can excuse procedural default at the state

If the petitioner is unable to meet the cause and prejudice level, but the ineffective assistance of counsel claim must first

standard, his claim may still be heard if he can show that be presented in state court. See Edwards v. Carpenter, 529

failure to consider the claim would result in a fundamental U.S. 446, 451–454, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000);

miscarriage of justice. Coleman, 501 U.S. at 750. However, DiSimone v. Phillips, 461 F.3d 181, 191 (2nd Cir.2006). At

only in an “extraordinary case, where a constitutional the time of his Report, Judge Francis noted that Petitioner's

violation has probably resulted in the conviction of one who ineffective assistance of counsel claim was procedurally

is actually innocent,” will “a federal habeas court grant the barred because Petitioner did not raise it during the state

writ even in the absence of a showing of cause for the court proceedings. (Report at 37.) In an effort to cure that

procedural default.” Murray, 477 U.S. at 496; accord Spence default, Petitioner filed a motion in state court to vacate his

v. Superintendent, Great Meadow Correctional Facility, 219 judgment on the grounds of ineffective assistance of counsel.

F.3d 162, 170 (2d Cir.2000). While Petitioner's state court motion to vacate may have cured

the procedural default in his ineffective assistance of counsel

Here, Petitioner has not shown that either the “cause and claim4, Petitioner raises this argument for the first time in

prejudice” or “fundamental miscarriage of justice” exceptions his Objections, despite the fact that in earlier filings Petitioner

apply. Petitioner cannot meet the cause and prejudice standard specifically denied any claim for ineffective assistance of

because Petitioner has proffered no compelling explanation counsel. (Opp'n to Respondent's Mem. Law at 2.)

for counsel's failure to make a constitutional objection to Ms.

Arthur's testimony during trial. Nor is this an “extraordinary The Court of Appeals for the Second Circuit has not decided

case” that has clearly “resulted in the conviction of one who whether a district court must consider a new legal argument

is actually innocent.” Murray, 477 U.S. at 496. Consequently, raised for the first time in objections to a magistrate judge's

Petitioner's Confrontation Clause claim is barred Report and Recommendation. One U.S. District Court in

Vermont, Wells Fargo Bank N.A. v. Sinnott, 2010 WL 297830,

at *2 (D.Vermont), adopts the 11th Circuit's approach to new

2. Petitioner's Hearsay Claim Fails on the Merits

legal arguments, as described in Williams v. McNeil, 557 F.3d

Even if the Petitioner's hearsay objection was sufficient to

1287, 1291 (11th Cir.2009) (holding that in order to preserve

raise a Confrontation Clause claim, the claim would also

the efficiencies afforded by the Magistrates Act, a district

fail on the merits. “It has long been the rule that ‘[s]o long

court has discretion to decline to consider a party's argument

as ... statements are not presented for the truth of the matter

when that argument was not first presented to the magistrate

asserted, but only to establish a context ... the defendant's

Sixth Amendment rights are not transgressed.’ “ United States

judge.).5

v. Paulino, 445 F.3d 211, 216 (2d Cir.2006) (quoting United

States v. Barone, 913 F.2d 46, 49 (2d Cir.1990)); see also Applying this standard here, the Court finds that it does

Rolland v. Greiner, No. 02 Civ. 8403, 2006 WL 779501, not need to address Petitioner's new legal argument because:

at *3 (S.D.N.Y. March 27, 2006) (no Confrontation Clause (1) Petitioner did not make an ineffective assistance of

violation when court admitted testimony of police detectives counsel argument before Judge Francis when he had the

about a non-testifying co-defendant's statements inculpating opportunity to do so; (2) the record indicates that Petitioner

Petitioner for the purpose of explaining what led detectives was satisfied with counsel; (3) Petitioner only attempted to

to interview defendant five years after crime). Since Ms. bring an ineffective assistance of counsel claim after it was

Arthur's statements were admitted only to show her state of suggested in Judge Francis' Report as a possible cure to cure

mind and to establish a context for her identification of the his Confrontation Clause claim's procedural default; (4) the

Petitioner, there was no violation of the Petitioner's Sixth Court is unaware of any intervening case or statute that has

Amendment rights. changed the state of the law regarding procedural default or

ineffective assistance of counsel claims; (5) the resolution

of the new legal issue raised here is not open to a serious

F. Newly Presented Ineffective Assistance of Counsel Claim question of law; and (6) efficiency and fairness lean strongly

the Magistrates Act and would unfairly benefit Petitioner who merits because the challenged statements by Ms. Arthur were

changed his tactics after issuance of the magistrate judge's not hearsay. See supra.

Report and Recommendation. See Paterson–Leitch Co. v.

Thus, the Court declines to consider Petitioner's ineffective

Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st

assistance of counsel claim raised for the first time in

Cir.1988) (“an unsuccessful party is not entitled as of right to

Petitioner's Objections to Judge Francis' Report.

de novo review by the judge of an argument never seasonably

raised before the magistrate.”)

*7 Finally, no manifest injustice will result by the Court III. Conclusion

declining to consider Petitioner's new argument. To prevail

on an ineffective assistance of trial counsel claim, Petitioner Having reviewed the January 18, 2008, Report and

must show: (1) that counsel's performance was deficient; and Recommendation of Magistrate Judge James C. Francis IV

(2) actual prejudice to the defense. Strickland v. Washington, for clear error on the first two claims, and de novo on the

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). third claim, the Court HEREBY APPROVES, ADOPTS, and

Petitioner would need to show that trial counsel's conduct fell RATIFIES the Report in its entirety, and Petitioner's Petition

“outside the range of professionally competent assistance” for the writ of habeas corpus is DENIED. The Clerk of the

and that “there is a reasonable probability that, but for Court is directed to close the docket in this case.

counsel's unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. Petitioner's state SO ORDERED.

court motion to vacate judgment for ineffective assistance of

counsel was denied, and it would be denied here as well. The

All Citations

record shows zealous representation of Petitioner by counsel

at trial, and there is no indication that counsel's failure to Not Reported in F.Supp.2d, 2011 WL 3809920

object to Ms. Arthur's testimony on constitutional grounds

Footnotes

1 The Factual Background is set forth in detail in Judge Francis' Report and will not be reiterated here. (Report

at 2–15.)

2 After being granted several extensions, Petitioner filed his Objections one day late, on April 29, 2008. Attached

to his Objections was a copy of Petitioner's motion to vacate judgment pursuant to New York State C.P.L.

§ 440.1 that Petitioner filed in New York State Supreme Court. Petitioner requested a delay in ruling on the

Report so that the state court could rule on his motion to vacate. On December 8, 2009, Petititioner wrote

the Court asking of the status of his habeas petition. On January 16, 2009, the Supreme Court of the State

of New York, New York County, denied Petitioner's motion under § 440.1 and there is no record of Petitioner

appealing this decision.

3 Ms. Arthur was one of two witnesses that witnessed the shooting, but did not inform the authorities of what

she saw until several months later. During trial, Ms. Arthur testified that she “didn't see him [Mr. Machicote]

shoot the guy, but after a while, after I heard that it was the guy Shawn in the rap video, I put two and two

together.” (Tr.(2) at 431.) Defense counsel objected to the testimony of Ms. Arthur because she was “not

testifying from her recollection,” but instead from what she had heard from others. (Tr.(2) at 431–32.) The

court refused to strike Ms. Arthur's testimony on this point, but instructed the jury that what Ms. Arthur heard

Petitioner's counsel moved for a mistrial, but the trial judge denied the motion. (Tr.(2) at 437.)

4 On June 30, 2008, Petitioner's state court motion to vacate judgment for ineffective assistance of counsel

was denied because “defense counsel's representation, in the Court's view, was of a far higher level of

effectiveness and competence than the minimal constitutional standard.” People v. Machicote, No. 11169–

94, denial of motion to vacate at 8 (N.Y.Sup.Ct.N.Y.Cnty.Crim.Term, Jan. 16, 2009). This Court can find no

record of an appeal of the decision denying Petitioners motion to vacate.

5 The District Court of Vermont laid out a six factor test for determining if any new arguments should be allowed.

Wells Fargo, 2010 WL 297830, at *3: “(1) the reason for the litigant's previous failure to raise the new legal

argument; (2) whether an intervening case or statute has changed the state of the law; (3) whether the new

issue is a pure issue of law for which no additional fact-finding is required; (4) whether the resolution of the

new legal issue is not open to serious question; (5) whether efficiency and fairness militate in favor or against

consideration of the new argument; and (6) whether manifest injustice will result if the new argument is not

considered.”

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2022 WL 16918287 this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.

Only the Westlaw citation is currently available. Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks

United States District Court, N.D. New York. omitted). Properly raised objections must be “specific and

clearly aimed at particular findings” in the report. Molefe

Boisey CALDWELL, Plaintiff, v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487

v. (S.D.N.Y. 2009). “[E]ven a pro se party's objections to a

Gerald J. PETROS, et al., Defendants. Report and Recommendation must be specific and clearly

aimed at particular findings in the magistrate's proposal....”

1:22-cv-567 (BKS/CFH) Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920

| at *2, 2011 U.S. Dist. LEXIS 95351 (S.D.N.Y. Aug. 25,

Signed November 14, 2022 2011) (citation omitted). Findings and recommendations as to

which there was no properly preserved objection are reviewed

Attorneys and Law Firms for clear error. Id. To the extent a party makes “merely

perfunctory responses, argued in an attempt to engage the

Plaintiff pro se: Boisey Caldwell, Bronx, NY 10452-7116.

district court in a rehashing of the same arguments” in the

original submission, the Court will only review for clear error.

Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008).

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, Chief United States District Judge: III. DISCUSSION

Magistrate Judge Hummel recommended that Plaintiff's

I. INTRODUCTION

Complaint be dismissed with prejudice because “[i]t is clear

*1 Plaintiff pro se Boisey Caldwell brought this “Attorney

from review of plaintiff's complaints in this action, that

Malpractice” action against Defendants Gerald J. Petros,

plaintiff is yet again attempting to bring a case involving the

Chritine K. Bush, and James Barrier on May 27, 2022.

same defendant and same frivolous claims.” (Dkt. No. 7, at

(Dkt. No. 1). The Complaint was referred to United States

6–7 (citing 2019 Action and 2004 Action)). Magistrate Judge

Magistrate Judge Christian F. Hummel who, on October 28,

Hummel explained that Plaintiff's 2019 Action and 2004

2022, issued a Report-Recommendation and Order granting

Action both named Defendant Barrier, raised the same legal

Plaintiff's application for leave to proceed in forma pauperis

malpractice issues Plaintiff asserts in the present Complaint,

and recommending that the Complaint be dismissed with

and were dismissed with prejudice. (Dkt. No. 7, at 6–7 (citing

prejudice. (Dkt. No. 7, at 1, 6–7 (noting that this is the third

2019 Action, Dkt. No. 4, at 6 (“[P]laintiff may not attempt

case Plaintiff has filed against Defendant Barrier alleging

to bring a new action to raise these claims against the same

“the same frivolous claims” (citing Caldwell v. Barrier, No.

defendant.”))).

1:19-cv-1516 (BKS/CFH) (N.D.N.Y. 2019) (“2019 Action”);

Caldwell v. James J. Barrier, et al., No. 1:04-cv-0036 (DNH/

*2 Magistrate Judge Hummel also concluded that even if

RFT) (N.D.N.Y. 2004) (“2004 Action”))).

Plaintiff's claims had not been dismissed previously, they

failed to allege a plausible claim for relief. (Dkt. No.

Plaintiff has filed a response to the Report-Recommendation.

7, at 7–8). Specifically, Magistrate Judge Hummel found

(Dkt. No. 8). For the reasons set forth below, Report-

that: Plaintiff's allegations regarding Defendant Barrier's

Recommendation is adopted in its entirety.

alleged violation of Plaintiff's Fifth, Seventh, and Fourteenth

Amendment rights failed to state a claim under 42 U.S.C. §

II. STANDARD OF REVIEW 1983 because “Barrier, as an attorney, was not acting under

This Court reviews de novo those portions of the Magistrate the color of state law,” (Dkt. No. 7, at 7 (citing Dkt. No. 1, at

Judge's findings and recommendations that have been 2–3)); Plaintiff's allegations that Defendant Barrier violated

properly preserved with a specific objection. Petersen v. attorney rules of professional conduct “do not form a basis

Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. of a constitutional claim,” (id. at 8); the statute of limitations

§ 636(b)(1)(C). “A proper objection is one that identifies precluded any state law legal malpractice claims “given that

the specific portions of the [report-recommendation] that the legal representation occurred in the mid-1990s,” (id. at

and Plaintiff does not refer to Defendants Petros or Bush or her designee. (Dkt. No. 7, at 9).

outside the caption of the Complaint and has not articulated a

plausible basis for liability against them, (Dkt. No. 7, at 7–8).

IV. CONCLUSION

For these reasons, it is hereby

In his response to the Report-Recommendation, (Dkt. No. 8

(docketed as an “Objection”)), Plaintiff provides additional ORDERED that Magistrate Judge Hummel's Report-

details about the facts underlying the lawsuit in which Recommendation (Dkt. No. 7) is ADOPTED in all respects;

Defendant Barrier was involved, (see, e.g., id. at 5 (referring and it is further

to Caldwell v. Tschantre et al.)), and Defendant Barrier's

alleged misconduct, (see id. at 7 (“Barrier violated the law ORDERED that Plaintiff's Complaint (Dkt. No. 1) is

governing lawyers when he took the case without following DISMISSED in its entirety WITH PREJUDICE; and it is

the Rules of Federal Procedure.”)). Plaintiff's submission further

does not reference the Report-Recommendation or identify

any objection to the analysis in the Report-Recommendation. ORDERED that any appeal from this matter would not be

Plaintiff has thus failed to preserve an objection, and the taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and

Court's review is for clear error. Having reviewed the Report- it is further

Recommendation for clear error and found none, the Court

adopts the Report-Recommendation in its entirety. ORDERED that the Clerk serve a copy of this Order on

Plaintiff in accordance with the Local Rules.

In adopting the Report-Recommendation, the Court also

adopts Magistrate Judge Hummel's admonition: any attempt

IT IS SO ORDERED.

“to bring future actions before this Court involving the same

claims and defendant or other frivolous arguments” may

result in the issuance of an order to show cause why a pre- All Citations

filing order enjoining Plaintiff from filing pro se any future

pleadings, documents, or motions in the Northern District of Not Reported in Fed. Supp., 2022 WL 16918287

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2024 WL 1908587 The plaintiff went to the hospital,2 where “Pratz started

Only the Westlaw citation is currently available. screaming ‘DO YOU THINK YOU'RE SAFE.’ ” (Id. at

United States District Court, E.D. New York. 10.) Pratz “immediately ran up to [physician's assistant] Tate

Wagener and falsely claim[ed] that [the plaintiff] refused

Monica REVILL, Plaintiff, to give [her] name.” (Id. at 10–11.) Wegener “falsely

v. designat[ed] [the plaintiff] as a danger to [her]self and others”

Erik PRATZ, Police Officer, Badge #30562; Christian without speaking to the plaintiff, evaluating her medical

Tate Wegener, Physician Assistant; Maxwell Scott condition, or seeking her consent to treatment. (Id. at 14.) The

Withorn, Registered Nurse; Mark Rydzewski, Doctor plaintiff says that Pratz, “having access to [her] vehicle and

of Osteopathic; Jessica E. Pooran, Registered Nurse; aware of [her] Bronx purchases, fabricated [the prehospital]

John Doe # 2, Queens Hospital Staff; John Doe # narrative and relayed it to Wagener and [another doctor who

signed the consent for treatment].” (Id. at 12–13.) Pratz also

3, Queens Hospital Staff; Taurean Dwight Howard,

allegedly covered his cell phone with a latex glove and

Medical Doctor; Denesha C. Findley, Physician

recorded the plaintiff. (Id. at 11.)

Assistant; Christian Chudi Eyiuche, Medical Doctor;

and John Doe # 1, Queens Hospital Staff, Defendants. The plaintiff “attempted to call her husband” and remove

the “stretch cot straps with the intention of using the

24-CV-2782 (AMD) (JAM)

restroom.” (Id. at 12.) At this point, “RN Weithorn turn

|

around and screamed ‘OH MY GOD! SHE'S AWAKE, NO

Signed May 1, 2024

YOU CAN'T LEAVE;’ ” the hospital staff “attacked” her and

“Withorn3 ran towards [her] with a pointed needle in the air

and stabbed [her] in the upper right neck and back.” (Id.). The

MEMORANDUM DECISION AND ORDER

plaintiff “was rendered unconscious from approximately 6:42

ANN M. DONNELLY, United States District Judge: am to 12:30 pm.” (Id. at 12.) During that time, the plaintiff

says, Wegener searched her purses, got access to her medical

*1 On April 11, 2024, the pro se plaintiff filed a records, undressed her, and “injected [her] with a circular

downloadable form complaint titled “Complaint for Violation multi pin needle in [her] upper left thigh ....” (Id.)4

of Civil Rights,” as well as a motion to proceed in forma

pauperis. (ECF Nos. 1, 2.) The complaint does not describe *2 The plaintiff claims Mark Rydzewski, Jessica Pooran,

the requested relief or assert a basis to invoke the Court's Denesha Findley, and Chudi Eyiuche, whom she identifies

jurisdiction. The plaintiff's in forma pauperis application as medical staff, “did not assess or evaluate [her] medical

is granted for the limited purpose of this Order. For the condition.” (Id. at 13.) However, the plaintiff also alleges:

following reasons, the Court dismisses the complaint sua Rydzewski “said [the plaintiff] appeared to be under the

sponte with leave to amend. influence of a substance with erratic and violent behavior;”

Pooler reported that at 11:48 a.m., the plaintiff had a stroke

and seizure and fell off of her bed; at 11:53 a.m., Findley

BACKGROUND and Eyiuche “said [the plaintiff] was standing up” and

“consented to a psychiatric evaluation;” Findley also retrieved

On April 11, 2021, the plaintiff's “motor functions shut down” the plaintiff's home phone number from her cellular phone,

and she needed to go to the hospital “to find out if there called the plaintiff's husband, and asked him questions about

was a date rape substance in [her] system;” she told her the plaintiff's psychiatric history. Id. at 13–14.

husband to “call EMS and the police.”1 (ECF No. 1 at 10.)

When the police arrived, the plaintiff told them that she had The plaintiff says she woke up at a 12:30 p.m.5 “in a different

been drugged. (Id.) The police then “cut off the ignition room from where the attack took place.” (Id. at 14.) Around

to [her] parked car” and gave her keys “to Police Officer 3:00 p.m., one of the plaintiff's friends arrived and Registered

Erick Pratz.” (Id.) Pratz also “took [the plaintiff's] purse and Nurse Jijo Jacob told the plaintiff that she could leave. As

searched it.” (Id. at 10, 12–13.) she was walking out of her room “to call the Police Precinct

Mortimor yelled ‘NO YOU CAN'T LEAVE.’ ” (Id.) Dr. that the defendant is liable for the misconduct alleged.”

Taurean Dwight Howard “ran up” to the plaintiff and her Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,

friend in the hallway “yelling, and pointing at [the plaintiff's] 550 U.S. at 556). “Factual allegations must be enough to

swollen left hand” and said, ‘Look what happened between raise a right to relief above the speculative level on the

you and the police,’ falsely accusing [her] of fighting the assumption that all the allegations in the complaint are true.”

Police.” (Id. at 14.) Twombly, 550 U.S. at 555 (citations omitted). Further, if the

Court “determines at any time that it lacks subject-matter

On April 12, 2021, the plaintiff “lodged a verbal complaint jurisdiction, [it] must dismiss the action.” Fed. R. Civ. P.

with Ms. Bipasha Haque from Patient Relations NYC Queens 12(h)(3); see also Cortlandt St. Recovery Corp. v. Hellas

Hospital” about the alleged attack on the ambulance stretcher. Telecomms., S.A.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015).

(Id. at 16.) When the plaintiff said she was injured, Haque

asked if she was “going to sue.” (Id.) *3 In addition, Rule 8 of the Federal Rules of Civil

Procedure instructs that the plaintiff must provide a short,

On April 14, 2021, the plaintiff requested medical records plain statement of claim against each defendant named

from “Queens HIM.”6 (Id. at 15.) On April 16, 2021, the so that they have adequate notice of the claims against

plaintiff spoke with Dr. Howard, who told her that she “was a them. Iqbal, 556 U.S. at 678 (Rule 8 “demands more

danger to [her]self and others,” and he and the hospital staff than an unadorned, the-defendant-unlawfully-harmed-me

“treated [her] accordingly.” (Id.) On May 4, 2021, the plaintiff accusation.”). “[U]nnecessary prolixity in a pleading places

received a partial medical record, which included lab results. an unjustified burden on the court and the party who must

(Id.) The plaintiff requested additional records but says she respond to it because they are forced to select the relevant

has not received the full record of treatments, clinical notes, material from a mass of verbiage.” Salahuddin v. Cuomo,

or medication documentation. (Id.) 861 F.2d 40, 42 (2d Cir. 1988) (citation omitted); Komatsu

v. City of New York, No. 20-CV-7046, 2021 WL 3038498,

On May 1, 2021, the plaintiff went to St. Luke's Hospital in at *5 (S.D.N.Y. July 16, 2021) (noting that “length is only

Utica, New York. (Id. at 18.) She says that “[u]nbeknownst one consideration under Rule 8,” and other issues include

to [her], [a physician's assistant] repeated the drug test “redundancy and frequent frolics into seemingly irrelevant

PA Wegener of Queens hospital conducted on April 11th, materials [which] inhibit the Court and Defendants’ ability to

without [her] consent or explanation. Given that PA Wegener understand the nature of many of the issues he has raised.”).

of Queens hospital initially ordered the drug test, it can Dismissal of a complaint for failure to comply with Rule 8

be inferred that there was communication between them is generally reserved for cases where the complaint is “so

regarding the repetition.” (Id.) confused, ambiguous, vague, or otherwise unintelligible that

its true substance, if any, is well disguised.” Salahuddin, 861

F.2d at 42. This standard is applied with special lenience to

pro se pleadings. See Simmons v. Abruzzo, 49 F.3d 83, 87 (2d

LEGAL STANDARD Cir. 1995).

A pro se plaintiff's complaint must be “liberally construed,

Finally, 28 U.S.C. § 1331 provides that “district courts shall

and ... however inartfully pleaded, must be held to less

have original jurisdiction of all civil actions arising under

stringent standards than formal pleadings drafted by lawyers.”

the Constitution, laws or treaties of the United States.” “A

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)

case aris[es] under federal law within the meaning of § 1331

(citations omitted). However, the district court must dismiss

... if a well-pleaded complaint establishes either that federal

an in forma pauperis complaint if it “is frivolous,” “fails

law creates the cause of action or that the plaintiff's right

to state a claim on which relief may be granted,” or “seeks

to relief necessarily depends on resolution of a substantial

monetary relief against a defendant who is immune from

question of federal law.” Empire Healthchoice Assurance,

such relief.” 28 U.S.C. § 1915(e)(2)(B). To avoid dismissal

Inc. v. McVeigh, 547 U.S. 677, 689–90 (2006). A plaintiff

for failure to state a claim, a complaint must plead “enough

properly invokes § 1331 jurisdiction when he or she pleads

facts to state a claim to relief that is plausible on its face.”

a colorable claim “arising under” the Constitution or laws of

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

the United States. Arbaugh v. Y & H Corp., 546 U.S. 500, 513

be dismissed for want of subject-matter jurisdiction if it is searches were improper.

not colorable, i.e., if it is ‘immaterial and made solely for the

purpose of obtaining jurisdiction’ or is ‘wholly insubstantial The plaintiff also claims that Wegener and Weithorn gave her

and frivolous.’ ” Id. at 513 n.10. Although courts hold pro se injections, and that certain hospital staff deemed her to be “a

complaints “to less stringent standards than formal pleadings danger to herself and others.” (Id. at 14.) She appears to have

drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980), been discharged from the hospital later that same day. The

pro se litigants must still establish subject matter jurisdiction. plaintiff's only claims against Rydzewski, Pooran, Findley,

See, e.g., Rene v. Citibank N.A., 32 F. Supp. 2d 539, 541–42 Eyiuche, and Jacob are that they made notes in her medical

(E.D.N.Y. 1999). records but did not “assess or evaluate” her medical condition.

(Id. at 13–14.) Finally, she names four John Doe defendants,

but she does not describe how these individuals are involved

or why their conduct is actionable. The plaintiff says that she

DISCUSSION

did not consent to treatment, but does not explain how these

I. Section 1915 and Rule 8 allegations amount to a constitutional violation.

The complaint, construed liberally, does not “disclose

sufficient information to permit the defendant[s] to have a fair These deficiencies justify dismissal under both § 1915(e)(2)

understanding of what the plaintiff is complaining about and (B) and Rule 8. Chavez v. Cause Yall Took My Phone I Don't

to know whether there is a legal basis for recovery.” Kittay Know Their Names, No. 21-CV-8526, 2021 WL 5401485, at

v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000); Harnage v. *1 (S.D.N.Y. Nov. 16, 2021) (“The complaint does not contain

Lightner, 916 F.3d 138, 141 (2d Cir. 2019). The plaintiff a single fact suggesting that [the plaintiff] can state a viable

did not complete the sections of the form complaint that claim that falls within the Court's jurisdiction.”); Hodge

ask for the jurisdictional basis for the plaintiff's claims, the v. New York Unemployment, No. 24-CV-1631, 2024 WL

location of the alleged violations, or the requested relief 1513643, at *1 (E.D.N.Y. Apr. 8, 2024); see also Salahuddin,

—nor does the plaintiff's appended narrative provide these 861 F.2d at 42.

details. This alone is a sufficient basis for dismissal. See Koso

v. Haegele, No. 18-CV-4400, 2018 WL 6531496, at *1–2

II. Section 1983

(E.D.N.Y. Dec. 11, 2018) (dismissing sua sponte where “[the

If the plaintiff intends to pursue a claim under 42 U.S.C. §

p]laintiff ... left blank the entire section of the form complaint

1983, the conduct alleged must have “been committed by

relating to the basis for this Court's jurisdiction” and did

a person acting under color of state law,” and “deprived a

not otherwise “identify any federal law pertaining to her

person of rights, privileges or immunities secured by the

claims”); see also Clarkes v. Hughes, No. 17-CV-961, 2018

Constitution or laws of the United States.” Pitchell v. Callan,

WL 5634932, at *3 (E.D.N.Y. Oct. 30, 2018) (dismissing

13 F.3d 545, 547 (2d Cir. 1994); see also McGugan v. Aldana-

allegations of constitutional violations for lack of subject

Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (“To state a claim

matter jurisdiction); cf. Villatoro v. Toulon, No. 22-CV-109,

under § 1983, a plaintiff must allege that defendants violated

2022 WL 493181, at *3 (E.D.N.Y. Feb. 17, 2022) (dismissing

plaintiff's federal rights while acting under color of state

Section 1983 claim because “there are no factual allegations

law.”); Schiff v. Suffolk Cnty. Police Dep't, No. 12-CV-1410,

in the complaint concerning any conduct or inaction” by the

2015 WL 1774704, at *5 (E.D.N.Y. Apr. 20, 2015).

defendant).

Here, the plaintiff does not allege facts sufficient to show

*4 Further, the plaintiff does not explain how the allegations

that the defendants acted in concert with state actors in

in the complaint amount to a constitutional violation. She

furtherance of an unconstitutional act. She does not explain

claims that Pratz, a police officer, searched her purse without

how the actions of seemingly private parties—the hospital

her consent and then provided false information to the

staff members—are attributable to the state in any way.

hospital staff. She also says that Wegener searched her purse

Private conduct, no matter how discriminatory or wrongful,

and accessed her medical records. She suggests that Pratz

is generally beyond the reach of § 1983. See American

and Wegener were looking for identifying information and

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, (1999); cf.

medical information; however, she does not explain how this

Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n,

departs from routine hospital procedure and treatment, and

and the challenged action’ that seemingly private behavior the Long Form in forma pauperis application and include

‘may be fairly treated as that of the State itself.’ ”) (quoting sufficient financial information to establish that she is “unable

Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). to pay [filing] fees or give security therefor.” 28 U.S.C. §

And in fact, hospitals and hospital staff are “generally not 1915(a)(1); see Adkins v. E.I. DuPont de Nemours & Co.,

considered” state actors. Anthony v. Med. Staff at Inst., No. 16- 335 U.S. 331, 339 (1948) (A litigant qualifies to proceed in

CV-1122, 2016 WL 1383491, at *2 (E.D.N.Y. Apr. 7, 2016) forma pauperis if she “cannot because of his poverty pay

(quoting White v. St. Joseph's Hosp., 369 F. App'x 225, 226 or give security for” the costs of filing “and still be able to

(2d Cir. 2010)); see Kia P. v. McIntyre, 235 F.3d 749, 757 n.3 provide himself and [his] dependents with the necessities of

(2d Cir. 2000) (“Our decision in this case turns in large part life.”); Bey v. Queens Cnty., Supreme Cts., No. 19-CV-2038,

on our conclusion that the [private] Hospital was not a state 2019 WL 11690197 (E.D.N.Y. May 1, 2019) (dismissing

actor when it provided medical care to [plaintiff].”); Jones the action without prejudice where the plaintiffs did not

v. Beth Israel Hosp., No. 17-CV-3445, 2018 WL 1779344, pay the filing fee or submit an adequate in forma pauperis

at *5 (S.D.N.Y. Apr. 12, 2018) (dismissing § 1983 claims application). The plaintiff says that she has no income or other

against hospital and noting that “[i]t is well established that assets. However, she does not explain how she makes her

private conduct is not controlled by Section 1983, unless the house payments or pays for the necessities of daily living.

private entity's challenged actions are fairly attributable to If the plaintiff's husband is providing financial support, that

the state.”); Abdul-Rahman v. Brooklyn Hosp. Ctr., No. 10- support is relevant to her claim of indigency; the Long Form

CV-1697, 2010 WL 1838607, at *1 (E.D.N.Y. Apr. 30, 2010) application allows both spouses to provide their relevant

(“[Brooklyn Hospital] is a private entity and its employees are financial information.

private parties, not state actors.”).

*5 Even assuming that Pratz, the only defendant who is

CONCLUSION

not employed by the hospital, violated her constitutional

rights, the plaintiff must explain how the private parties are For these reasons, the complaint is dismissed. The Second

“jointly engaged” in that conduct. See, e.g., Betts v. Shearman, Circuit has advised that district courts “should not dismiss

751 F.3d 78, 85 (2d Cir. 2014) (“Where ... a police officer [a pro se complaint] without granting leave to amend at

exercises independent judgment in how to respond to a private least once when a liberal reading of the complaint gives

party's legitimate request for assistance, the private party is any indication that a valid claim might be stated.” Cuoco

not jointly engaged in the officer's conduct so as to render it a v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However,

state actor under Section 1983.” (quoting Ginsberg v. Healey where a court does not find that the complaint, liberally

Car & Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999))). construed, “suggests that the plaintiff has a claim that she

She does not do so here. The plaintiff is therefore on notice has inadequately or inartfully pleaded,” but instead that “[t]he

of Section 1983’s requirements should she choose to amend problem with [the plaintiff's] causes of action is substantive

her complaint. [and] better pleading will not cure it,” “[r]epleading would ...

be futile” and leave to replead “should be denied.” Id. (citing

Hunt v. All. N. Am. Gov't Income Tr., 159 F.3d 723, 728 (2d

III. In Forma Pauperis Application

Cir. 1998)).

Finally, the plaintiff's application to proceed in forma

pauperis is incomplete. The plaintiff says that she is

The Court has carefully considered the allegations in the

unemployed and has no income or cash. (ECF No. 2 at 1,

complaint and, out of an abundance of caution, grants

3.) However, she owns a car valued at $15,000 and makes

the plaintiff leave to amend within 30 days. However, as

monthly mortgage payments of $300 a month. (Id. at 3.)

explained above, the plaintiff must provide a “short and

She also reports a “school loan” to Nelnet7 in the amount

plain statement” of facts sufficient to demonstrate how the

of $70,000. Id. The application does not explain how the defendants violated her constitutional rights. The plaintiff

plaintiff makes her house and student loan payments, or how is also on notice of the requirements to pursue a § 1983

she affords basic necessities, given her reported income. claim. If the plaintiff chooses to amend without addressing

the deficiencies identified in this Order, or does not amend

without a second chance to amend and close the case. Assistance Project in Brooklyn by calling (212) 382-4729.

*6 The plaintiff is advised that the amended complaint will

SO ORDERED.

replace the original complaint, must be captioned “Amended

Complaint,” and must bear the same docket number as this All Citations

Memorandum and Order: 1:24-CV-2782 (AMD) (JAM). For

free, limited-scope legal assistance, the plaintiff may wish to Slip Copy, 2024 WL 1908587

Footnotes

1 The plaintiff does not identify where this incident took place.

2 The plaintiff does not identify which hospital, although it appears that the plaintiff went to a hospital in Queens,

New York. (ECF No. 1 at 15 (“On April 14, 2021, I requested a copy of my entire medical record from Queens

HIM and did not receive it.”).)

3 The plaintiff spells the defendants’ names in different ways throughout the complaint.

4 She also says that the hospital staff gave her “additional” injections, but these “medications and treatments

are absent from [her] medical record.” (ECF No. 1 at 12.)

5 It is not clear from the complaint how she “consented to a psychiatric evaluation at 11:53 a.m.” (id. at 13),

but did not wake up until noon.

6 It is not clear what the plaintiff means by “Queens HIM.”

7 Nelnet is a student loan services organization. See Nelnet Landing Page, https://nelnet.com/ (last visited

May 1, 2024).

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2024 WL 3063679 amended complaint. See Dkt. No. 20. Magistrate Judge

Only the Westlaw citation is currently available. Katz issued a Report-Recommendation on April 26, 2024,

United States District Court, N.D. New York. recommending that Plaintiff's second amended complainant

be dismissed with prejudice and without leave to amend. See

Gary Arthur HOLYOKE, Plaintiff, Dkt. No. 21. On May 6, 2024, Plaintiff filed objections. See

v. Dkt. No. 22. Plaintiff's objections are one page and state as

S.S.I., et al., Defendants. follows:

6:23-CV-1557 (MAD/MJK)

| I object to this case being dismissed

Signed June 20, 2024 due to the fact of over thirty years of

doctors holding me against my will

Attorneys and Law Firms and causing the loss of the prime of

GARY ARTHUR HOLYOKE, 13 Lennon Place, Whitesboro, my life by alot [sic] of false beliefs

New York 13492, Plaintiff, pro se. and accusations that took up to[o]

much time of my life that I am due

compensation.

ORDER

Mae A. D'Agostino, United States District Judge: Dkt. No. 22.

*1 On December 12, 2023, Plaintiff Gary Arthur Holyoke “When only a general objection is made to a portion of a

commenced this action, pro se, by filing a complaint and a magistrate judge's report-recommendation, the Court subjects

motion to proceed in forma pauperis (“IFP”). See Dkt. Nos. that portion of the report-recommendation to only a clear error

1, 2. On January 2, 2024, Magistrate Judge Andrew T. Baxter review.” Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 684

issued an Order and Report-Recommendation granting (N.D.N.Y. 2015) (citing FED. R. CIV. P. 72(b)). After the

Plaintiff's IFP motion and recommending that Plaintiff's appropriate review, “the court may accept, reject, or modify,

complainant be dismissed without prejudice and with leave in whole or in part, the findings or recommendations made by

to amend as to Defendants City of Utica and Oneida County. the magistrate judge.” 28 U.S.C. § 636(b)(1).

See Dkt. No. 7. Magistrate Judge Baxter recommended

dismissing Plaintiff's complaint without prejudice but without As Plaintiff is proceeding pro se, the Court must review

leave to amend as to all other Defendants. See id. Plaintiff his complaint under a more lenient standard. See Govan

objected to Magistrate Judge Baxter's Order and Report- v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003).

Recommendation, filed a notice of change of address, and The Court must make “reasonable allowances to protect

amended his complaint on February 12, 2024. See Dkt. Nos. pro se litigants from inadvertent forfeiture of important

14, 15, 16. rights because of their lack of legal training.” Traguth v.

Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus, “a document

On February 20, 2024, the Court adopted Magistrate Judge filed pro se is ‘to be liberally construed,’ ... and ‘a pro se

Baxter's Order and Report-Recommendation in its entirety complaint, however in artfully pleaded, must be held to less

and granted Plaintiff leave to amend his complaint as to stringent standards than formal pleadings drafted by lawyers.”

Defendants City of Utica and Oneida County. See Dkt. No. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

17. The Court also ordered that Plaintiff's amended complaint Gamble, 429 U.S. 97, 106 (1976)) (internal citation omitted).

be referred to Magistrate Judge Mitchell J. Katz for review “Although the court has the duty to show liberality towards

pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. See id. pro se litigants, ... there is a responsibility on the court to

determine that a claim has some arguable basis in law before

As Plaintiff's amended complaint was prepared without the permitting a plaintiff to proceed with an action in forma

benefit of the Court's February Order, Magistrate Judge Katz pauperis.” Moreman v. Douglas, 848 F. Supp. 332, 333-34

granted Plaintiff forty-five days to amend his complaint. See

*2 Having reviewed Magistrate Judge Katz's Report- Grp. Home Living Program, Inc. 546 F.3d 255, 257 (2d Cir.

Recommendation, Plaintiff's second amended complaint, and 2008); Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308,

the applicable law, the Court does not discern any clear error 312 (2d Cir. 2003). As explained in this Court's February

in Magistrate Judge Katz's recommendations. Order, Mohawk Valley Health System is a private healthcare

organization. See Dkt. No. 17 at 3. As such, Wynn Medical

Magistrate Judge Katz correctly determined that Plaintiff's Center, operating under Mohawk Valley Health System, is

second amended complaint should be dismissed as against a private actor. Plaintiff failed to allege that Wynn Medical

Mohawk Valley Community Services, Scott Buddle, Jeremy Center is a state actor or engaged in any state action. Thus,

Dawes, “workers of the 9th floor,” Dr. Westmoreland, Magistrate Judge Katz correctly found that Plaintiff failed to

Dr. Lynwynn Wynn, Bob Michelle, and the “other case state a claim pursuant to § 1983. See Dkt. No. 21 at 5.

managers” for failure to comply with Rule 8 of the Federal

Rules of Civil Procedure. See Dkt. No. 21 at 4. To properly *3 Magistrate Judge Katz was also correct in his

assert a claim, a plaintiff must allege some act or omission determination that Dr. Nalin Sinha, as a provider working in

on the part of each defendant that gives rise to the alleged a private medical facility, generally would not be considered

deprivation. See Gonzalez v. City of New York, No. 97- a state actor for purposes of § 1983. See Dkt. No. 21; see

CV-2246, 1998 WL 382055, *2 (S.D.N.Y. July 9, 1998) also Estiverne v. Esernio, 910 F. Supp. 2d 434, 443 (E.D.N.Y.

(finding dismissal to be proper when the complaint only 2012). Specifically, Magistrate Judge Katz explained that

included the defendant's name in the caption and did not private hospitals and doctors are not state actors for purposes

allege personal involvement of the defendant); Crown v. of § 1983 liability when engaging in their role under New

Wagenstein, No. 96-CV-3895, 1998 WL 118169, *2 (S.D.N. York's civil commitment scheme. See Dkt. No. 21 at 6; see

Y Mar. 16, 1998) (same). Because Plaintiff only named the also Okunieff v. Rosenberg, 996 F. Supp. 342 (S.D.N.Y. 1998),

aforementioned Defendants in his case caption, but failed to aff'd, 166 F.3d 507 (2d Cir. 1999); Elisens v. Auburn Cmty.

articulate facts supporting a cause of action against them in Hosp., No. 5:19-CV-1236, 2021 WL 1027915, *2 (N.D.N.Y.

the body of his complaint, Magistrate Judge Katz's correctly Mar. 17, 2021) (finding that a private physician was not

concluded that the second amended complaint must be acting under color of law when they involuntarily committed

dismissed against those Defendants. See Dkt. No. 21 at 3. a patient to a psychiatric unit). The Court agrees with

Magistrate Judge Katz's recommendation and concludes that

Magistrate Judge Katz was also correct in his determination Plaintiff's second amended complaint should be dismissed as

that Plaintiff's allegation of discrimination should be against Defendants Wynn Medical Center and Dr. Sinha.

dismissed for his failure to comply with Rule 8. See id.

at 4. “The Second Circuit has found dismissal appropriate In its February Order, this Court dismissed Plaintiff's claims

pursuant to Rule 8 when a complaint is ‘unintelligible’ and without leave to amend against Defendants I.R.S., S.S.I., and

fails to ‘explain[ ] what conduct constituted the violations, Medicare on sovereign immunity grounds. See Dkt. No. 17

which defendants violated which statutes ... or how the at 3-4. Plaintiff attempted to reallege claims against these

alleged violations harms [the plaintiff].’ ” Vantone Group Defendants in his second amended complaint, see Dkt. No. 20

LLC v. Yangpu NGT Indus. Co., No. 13-CV-7639, 2015 at 1, 9, and Magistrate Judge Katz correctly determined that

WL 4040882, *4 (S.D.N.Y. July 2, 2015) (quoting Strunk v. such claims must be dismissed. See Dkt. No. 21 at 7.

U.S. House of Representatives, 68 Fed. Appx. 233, 235 (2d.

Cir. 2003)) (alterations in original). Thus, Plaintiff's general In addressing Plaintiff's claim against Defendant Assertive

allegation of “discrimination” by “different services” does Community Treatment team (“ACT team”), Magistrate Judge

not sufficiently set forth a claim under Rule 8. Dkt. No. Katz found that the ACT team is an extension of the New York

20 at 13. The Court agrees with Magistrate Judge Katz's State of Office of Mental Health, and, as such, is an entity

recommendation that this purported claim must be dismissed of the state. See Dkt. No. 21 at 8. Thus, he concluded that

for failure to state a claim. See Dkt. No. 21 at 5. Plaintiff is barred by the Eleventh Amendment from bringing

a suit against the ACT team in federal court. See id.; see

Next, Magistrate Judge Katz states, as this Court set forth also Klestinez v. ACT Team, No. 6:21-CV-696, 2021 WL

in its February Order, that in order to bring a claim under 4086128, *3 (citing Limwongse v. New York State Office of

42 U.S.C. § 1983, Plaintiff must plead state action. See Dkt. Mental Health, 249 Fed. Appx. 862, 862-63 (2d Cir. 2007)).

determination. filing frivolous actions in this Court and has been unable to

articulate any plausible claim for relief in this action despite

With regard to the individual ACT team member Defendants, being afforded the opportunity to amend his complaint. See

the Court agrees with Magistrate Judge Katz's finding that Dkt. No. 21 at 9. Thus, the Court denies Plaintiff further leave

the Plaintiff's second amended complaint fails to state a claim to amend.

upon which relief can be granted and should be dismissed

as to these Defendants. See Dkt. No. 17 at 9. Plaintiff failed *4 Accordingly, the Court hereby

to allege what conduct giving rise to a claim is attributable

to each of the individual Defendants; therefore, Plaintiff has ORDERS that Magistrate Judge Katz's Report-

not set forth a plausible basis upon which he can bring Recommendation (Dkt. No. 21) is ADOPTED in its entirety

for the reasons set forth herein; and the Court further

claims against the individual members of the ACT team. See

Dkt. No. 21 at 8; see also Wright v. Smith, 21 F.3d 496,

501 (2d Cir. 1994) (“It is well settled in this Circuit that

ORDERS that Plaintiff's second amended complaint (Dkt.

‘personal involvement of defendants in alleged constitutional

No. 20) is DISMISSED with prejudice and without leave

deprivations is a prerequisite to an award of damages under §

to amend; and the Court further

1983’ ”) (quotation omitted); Ashcroft v. Iqbal, 556 U.S. 662,

663 (2009).

ORDERS that the Clerk of the Court shall enter judgment in

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

Concerning an opportunity to amend, Magistrate Judge Katz

recommended that Plaintiff not be given another opportunity

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

Order upon Plaintiff in accordance with Local Rules.

to amend his complaint. See Dkt. No. 21 at 9. Leave to amend

may be denied where a plaintiff has already been given leave

to amend and has failed to cure identified deficiencies. See

IT IS SO ORDERED.

Amrod v. YouGov, No. 1:23-CV-1104, 2023 WL 8432314,

*6 (N.D.N.Y. Dec. 5, 2023). Leave to amend may also be All Citations

denied where it would be futile. See Panther Partners Inc.

v. Ikanos Communications, Inc., 681 F.3d 114, 119 (2012). Slip Copy, 2024 WL 3063679

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2021 WL 1027915 Motion to Dismiss. In addition, Bilal separately filed a motion

Only the Westlaw citation is currently available. for summary judgment. Dkt. Nos. 37 (“Bilal's Motion for

United States District Court, N.D. New York. Summary Judgment”); 37-5 (“Bilal's Memorandum of Law”);

39 (“Plaintiff's Opposition to Bilal's Motion for Summary

Brent Allen ELISENS, Plaintiff, Judgment”); 40 (“Bilal's Reply”). Lastly, Plaintiff submitted

v. a fifth motion to appoint counsel. Pl.’s Opp'n to Bilal's Mot.

AUBURN COMMUNITY for Summ. J. at 1. For the reasons that follow, the Court grants

HOSPITAL, et al., Defendants. both motions to dismiss and dismisses the Complaint. The

Court also dismisses Bilal's Motion for Summary Judgment

5:19-CV-1236 (LEK/TWD) and Plaintiff's motion to appoint counsel for lack of subject-

| matter jurisdiction.

Signed 03/17/2021

Attorneys and Law Firms II. BACKGROUND

The following factual allegations are assumed to be true.

Brent Allen Elisens, Bangor, ME, pro se. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,

76 (2d Cir. 2015). Plaintiff's factual allegations are detailed

Paul D. Jureller, Alicia M. Dodge, Erin P. Mead, Thorn in a previous Memorandum-Decision and Order, familiarity

Gershon Tymann & Bonanni, Albany, NY, for Defendant with which is assumed. See Dkt. No. 8 (“February 2020

Auburn Community Hospital. Memorandum-Decision and Order”) at 2. For convenience,

John D. Aspland, Fitzgerald Morris Baker Firth, P.C., Glens the Court summarizes Plaintiff's allegations here.

Falls, NY, for Defendants Colleen Curr, Cayuga County

Mental Health, Dr. Michael Pratts, Faith Emerson. On or about September 6, 2019, Plaintiff attempted to file a

grievance against Curr, who works at Cayuga County Mental

Kevin E. Hulslander, Brady J. O'Malley, Smith, Sovik, Health (“CCMH”), for refusing to order a student leave the

Kendrick & Sugnet, P.C., Syracuse, NY, for Defendant Dr. room during an appointment. Compl. at 2. Plaintiff was told

Ahmad Bilal. to return the following week. Id. When Plaintiff returned,

Dr. Michael Pratts asked Plaintiff if he had been admitted to

inpatient care before, and Plaintiff confirmed that he had. Id.

MEMORANDUM-DECISION AND ORDER Later that day, a New York State Trooper picked up Plaintiff

for involuntary commitment to the psychiatric unit at ACH

Lawrence E. Kahn, U.S. District Judge with a diagnosis of schizophrenia and delusional disorder. Id.

Bilal examined Plaintiff the following day, made fun of him,

I. INTRODUCTION and told him he would remain in the hospital for weeks. Id.

*1 Pro se plaintiff Brent Allen Elisens filed an action Bilal and Curr ignored multiple forms of proof that Plaintiff

against Auburn Community Hospital (“ACH”), Colleen provided that indicated he was not delusional, homicidal, or

Curr, and Dr. Ahmad Bilal, a doctor employed at ACH suicidal. Id.

(collectively, “Defendants”). Dkt. No. 1 (“Complaint”).

Plaintiff alleges that Defendants violated his constitutional Plaintiff asserts: (1) 42 U.S.C. § 1983 claims against Bilal

rights and committed medical malpractice by committing related to his illegal seizure and denial of due process resulting

him involuntarily pursuant to New York's Mental Health and from Plaintiff's involuntary confinement, and (2) New York

Hygiene Law. See generally id. State medical malpractice claims against Bilal, Curr, and

ACH. See Compl. at 2–3; February 2020 Mem.-Decision and

Presently before the Court are motions to dismiss by ACH Order at 1–2.

and Curr pursuant to Federal Rule of Civil Procedure

12(b)(1). Dkt. Nos. 26 (“ACH's Motion to Dismiss”);

26-6 (“ACH's Memorandum of Law”); 30 (“Curr's Motion III. LEGAL STANDARD

to Dismiss”); 30-2 (“Curr's Memorandum of Law”); 33 *2 To survive a motion to dismiss pursuant to Federal

to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, not exempt a party from compliance

556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) with relevant rules of procedural and

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, substantive law....

127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Fed. R.

Civ. P. 12(b)(6). A court must accept as true the factual

allegations contained in a complaint and draw all inferences Id. (internal citations omitted); see also Sealed Plaintiff v.

in favor of a plaintiff. See Allaire Corp. v. Okumus, 433 Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On

F.3d 248, 249–50 (2d Cir. 2006). A complaint may be occasions too numerous to count, we have reminded district

dismissed pursuant to Rule 12(b)(6) only where it appears courts that when [a] plaintiff proceeds pro se, ... a court

that there are not “enough facts to state a claim to relief that is obligated to construe his pleadings liberally.”) (internal

is plausible on its face.” Twombly, 550 U.S. at 570, 127 citations omitted).

S.Ct. 1955. Plausibility requires “enough fact[s] to raise a

reasonable expectation that discovery will reveal evidence of “Where a properly filed motion [to dismiss] is unopposed

[the alleged misconduct].” Id. at 556, 127 S.Ct. 1955. The and the Court determines that the moving party has met

plausibility standard “asks for more than a sheer possibility its burden to demonstrate entitlement to the relief requested

that a defendant has acted unlawfully.” Iqbal, 556 U.S. at therein, the non-moving party's failure to file or serve any

678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, papers ... shall be deemed as consent to the granting or denial

127 S.Ct. 1955). “[T]he pleading standard Rule 8 announces of the motion, as the case may be, unless good cause be

does not require ‘detailed factual allegations,’ but it demands shown.” N.D.N.Y. L.R. 7.1(b)(3). Under such circumstances,

more than an unadorned, the-defendant-unlawfully-harmed- dismissal is appropriate where the movant's argument for

me accusation.” Id. (citing Twombly, 550 U.S. at 555, 127 dismissal is “facially meritorious.” See, e.g., Hernandez v.

S.Ct. 1955). Where a court is unable to infer more than Nash, No. 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7–

the mere possibility of the alleged misconduct based on the 8, 2003 WL 22143709 (N.D.N.Y. Sept. 10, 2003).

pleaded facts, the pleader has not demonstrated that she is

entitled to relief and the action is subject to dismissal. See id.

at 678–79, 129 S.Ct. 1937. IV. DISCUSSION

To state a claim under § 1983, a plaintiff must allege (1) the

Where, as here, a party seeks judgment against a pro se violation of a right secured by the Constitution and laws of the

litigant, a court must afford the non-movant special solicitude. United States, and (2) that the deprivation was committed by a

See Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 person acting under the color of state law. See Vega, 801 F.3d

(2d Cir. 2006). As the Second Circuit stated, at 87–88. Section 1983 “is not itself a source of substantive

rights, but a method for vindicating federal rights elsewhere

conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3, 99

[T]here are many cases in which S.Ct. 2689, 61 L.Ed.2d 433 (1979).

we have said that a pro se litigant

is entitled to special solicitude, that ACH argues that Plaintiff's § 1983 claims should be dismissed

a pro se litigant's submissions must because its doctor, Bilal, was not acting under the color of

be construed liberally, and that such state law. ACH's Mem. of Law at 9–17. The Court agrees.

submissions must be read to raise the Here, Plaintiff asserts § 1983 claims against Bilal for his

strongest arguments that they suggest. involuntary commitment of Plaintiff to ACH's psychiatric

At the same time, our cases have unit. However, Plaintiff does not allege that Bilal was a state

also indicated that we cannot read actor nor that he was acting under the color of state law.

into pro se submissions claims that Because Plaintiff does not allege any facts to suggest that

are not consistent with the pro se Bilal acted under state law or had any interaction or agreement

litigant's allegations, or arguments that with New York State, Plaintiff's § 1983 claims are dismissed.

the submissions themselves do not See Graham v. City of Albany, No. 08-CV-892, 2009 WL

suggest, that we should not excuse 4263510, at *13 (N.D.N.Y. Nov. 23, 2009) (dismissing a §

frivolous or vexatious filings by pro 1983 action brought by a pro se plaintiff for failure to allege

where plaintiff “alleged no facts to suggest that [the private wishes.

party] acted jointly with the [state] [d]efendants”); see also

Doe v. Harrison, 254 F. Supp. 2d 338, 342–44 (S.D.N.Y. Because the Court dismisses Plaintiff's § 1983 claims against

2003) (dismissing a § 1983 suit against a private physician Bilal and does not have jurisdiction over Plaintiff's remaining

because there was no allegation that state officials compelled state law claims, the Court dismisses Bilal's Motion for

the private physician to hospitalize the plaintiff for twelve Summary Judgment for lack of subject-matter jurisdiction.

days). Additionally, the Court dismisses Plaintiff's fifth motion to

appoint counsel for lack of subject-matter jurisdiction.

*3 Defendants argue that there is no independent basis

for federal jurisdiction over Plaintiff's state law medical

V. CONCLUSION

malpractice claims if his § 1983 claims are dismissed. ACH's Accordingly, it is hereby:

Mem. of Law at 17–19; see generally Curr's Mem. of Law.

The Court again agrees. “In the interest of comity, the ORDERED, that ACH's’s Motion to Dismiss (Dkt. No. 26)

Second Circuit instructs that ... where federal claims can be and Curr's Motion to Dismiss (Dkt. No. 30) are GRANTED

disposed of ... courts should ‘abstain from exercising pendent in their entirety; and it is further

jurisdiction.’ ” Birch v. Pioneer Credit Recovery, Inc., No. 06-

CV-6497, 2007 WL 1703914, at *5 (W.D.N.Y. June 8, 2007) ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is

(quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d DISMISSED; and it is further

Cir. 1986)). Using its discretion, the Court declines to exercise

supplemental jurisdiction over Plaintiff's state law claims, ORDERED, that Bilal's Motion for Summary Judgment

because it “has dismissed all claims over which it has original (Dkt. No. 37) and Plaintiff's fifth motion to appoint counsel

jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d (Dkt. No. 39) are DISMISSED; and it is further

118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)); see

also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, ORDERED, that the Clerk is directed to close this case; and

250 (2d Cir. 2008) (“We have already found that the district it is further

court lacks subject matter jurisdiction over appellants’ federal

claims. It would thus be clearly inappropriate for the district ORDERED, that the Clerk serve a copy of this

court to retain jurisdiction over the state law claims when Memorandum-Decision and Order on all parties in

there is no basis for supplemental jurisdiction.”); Karmel accordance with the Local Rules.

v. Claiborne, Inc., No. 99-CV-3608, 2002 WL 1561126, at

*4 (S.D.N.Y. July 15, 2002) (“Where a court is reluctant

IT IS SO ORDERED.

to exercise supplemental jurisdiction because of one of the

reasons put forth by § 1367(c), or when the interests of judicial

economy, convenience, comity and fairness to litigants are not All Citations

violated by refusing to entertain matters of state law, it should

decline supplemental jurisdiction and allow the plaintiff to Not Reported in Fed. Supp., 2021 WL 1027915

decide whether or not to pursue the matter in state court.”).

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2015 WL 151029 Recommendation (Dkt. No. 4) is ACCEPTED and

Only the Westlaw citation is currently available. ADOPTED in its entirety; and it is further

United States District Court,

N.D. New York. ORDERED that Plaintiff's Complaint (Dkt. No. 1) is

DISMISSED without leave to replead and without prejudice.

Rudoph M. BRUCE, II, on behalf of

himself and his son, T.R.B., Plaintiff, The Court hereby certifies, for purposes of 28 U.S.C. §

v. 1915(a) (3), that any appeal taken from the Court's final

TOMPKINS CNTY. DEP'T OF SOC. SERVS., judgment in this action would not be taken in good faith.

through Kit KEPHART, Cmm'r; Jennifer M.

Donlan, Esq.; and Patricia A. Carey, Comm'r,

Tompkins Cnty. Dep't of Soc. Servs., Defendants. REPORT, RECOMMENDATION, AND ORDER

No. 5:14–CV–0941 (GTS/DEP). DAVID E. PEEBLES, United States Magistrate Judge.

|

Pro se plaintiff Rudolph M. Bruce, II., purporting to act

Signed Jan. 7, 2015.

on behalf of himself and his son, T.R.B., has commenced

Attorneys and Law Firms this action against Tompkins County Department of Social

Services (“DSS”) and two individuals, pursuant to 42 U.S.C.

Rudolph M. Bruce, II, Newfield, NY, pro se. § 1983, alleging that the defendants have deprived him

and his son of their civil rights. Plaintiff's complaint and

accompanying application for leave to proceed in forma

DECISION and ORDER pauperis (“IFP”) have been referred to me for consideration.

For the reasons set forth below, I recommend that plaintiff's

GLENN T. SUDDABY, District Judge. complaint be dismissed without leave to replead.

*1 Currently before the Court, in this pro se civil

rights action filed by Rudolph M. Bruce, II, on behalf I. BACKGROUND

of himself and his son T.R.B. (“Plaintiff”) against the This action was commenced on July 28, 2014. Dkt. No. 1.

above-captioned county and two individuals (“Defendants”) Plaintiff's complaint asserts claims on his behalf and on behalf

arising from a currently pending proceeding in Tompkins of his son, T.R.B., and names Tompkins County DSS, Kit

County Family Court, are (1) United States Magistrate Judge Kephart, Jennifer M. Donlan, Esq., and Patricia A. Carey as

David E. Peebles' Report–Recommendation recommending defendants. Id . at 1–2. Plaintiff's complaint is accompanied

that Plaintiff's Complaint be dismissed without leave to by an application for leave to proceed IFP. Dkt. No. 2.

replead and without prejudice pursuant to the Younger

doctrine, and (2) Plaintiff's two-page Objection, which fails to In his complaint, plaintiff alleges that his son's First

contain a specific challenge to the Report–Recommendation. Amendment right of free speech was infringed by the

(Dkt.Nos .4, 5.) After carefully reviewing the relevant filings defendants, who apparently took custody of T.R.B. and his

in this action, the Court can find no clear error in the Report– siblings1 on or about June 17, 2014, based upon T.R.B.'s

Recommendation: Magistrate Judge Peebles employed the statement that “he would rather be dead if he could not be with

correct legal standards, accurately recited the facts, and his family.”2 Dkt. No. 1 at 5. The complaint suggests that,

reasonably applied the law to those facts. As a result, the

prior to taking custody of T.R.B. and his siblings, Tompkins

Court accepts and adopts the Report–Recommendation for

County DSS investigated a complaint of alleged child neglect,

the reasons stated therein. (Dkt. No. 4.) The Court would

and proceedings before Honorable Joseph R. Cassidy, a

add only that Magistrate Judge Peebles' thorough Report–

Tompkins County Family Court Judge, have commenced

Recommendation would survive even a de novo review.

regarding the custody of the children. Id. at 6.

ACCORDINGLY, it is

defendants have deprived him of his right to custody of filing fee). “Legal frivolity ... occurs where ‘the claim is based

his children under the First, Fourth, Fifth, and Fourteenth on an indisputably meritless legal theory [such as] when either

Amendments, and have deprived T.R.B. of his First the claim lacks an arguable basis in law, or a dispositive

Amendment right to free speech. See generally Dkt. No. 1. As defense clearly exists on the face of the complaint.’ “ Aguilar

relief, plaintiff seeks (1) return of his children to his custody v. United States, Nos. 99–MC–0304, 99–MC–0408, 1999 WL

and (2) Judge Cassidy's recusal from the pending family 1067841, at *2 (D.Conn. Nov. 8, 1999) (quoting Livingston v.

court matter in Tompkins County or removal of the matter to Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998));

Broome County. Id. at 4, 7. see also Neitzke v. Williams, 490 U.S. 319, 325 (1989)

(“[D]ismissal is proper only if the legal theory ... or factual

contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d.

II. DISCUSSION 51, 53 (2d Cir.1995) (“[T]he decision that a complaint is based

on an indisputably meritless legal theory, for the purposes of

A. Application to Proceed IFP

dismissal under section 1915(d), may be based upon a defense

When a civil action is commenced in a federal district court,

that appears on the face of the complaint.”).

the statutory filing fee, currently set at $400, must ordinarily

be paid. 28 U.S.C. § 1914(a). A court is authorized, however,

*3 When reviewing a complaint under section 1915(e), the

to permit a litigant to proceed IFP if it determines that he is

court looks to applicable requirements of the Federal Rules

unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1).3

of Civil Procedure for guidance. Specifically, Rule 8 of the

In this instance, because I conclude that plaintiff meets the Federal Rules of Civil Procedure provides that a pleading

requirements for IFP status, his application is granted.4 must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed.R.Civ.P.

8(a)(2). The purpose of Rule 8 “is to give fair notice of the

B. Sufficiency of Plaintiff's Claims claim being asserted so as to permit the adverse party the

opportunity to file a responsive answer, prepare an adequate

1. Standard of Review

defense and determine whether the doctrine of res judicata is

Because I have granted plaintiff's motion to proceed in forma

applicable.” Powell v. Marine Midland Bank, 162 F.R .D. 15,

pauperis, I must review the sufficiency of the claims set forth

16 (N.D.N.Y.1995) (McAvoy, J.) (quotation marks and italics

in his complaint in light of 28 U.S.C. § 1915(e). Section

omitted).

1915(e) directs that, when a plaintiff seeks to proceed IFP,

“the court shall dismiss the case at any time if the court

A court should not dismiss a complaint if the plaintiff

determines that ... the action ... (i) is frivolous or malicious;

has stated “enough facts to state a claim to relief that is

(ii) fails to state a claim on which relief may be granted; or

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

(iii) seeks monetary relief against a defendant who is immune

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

from such relief.” 28 U.S.C. § 1915(e)(2)(B).

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for

In deciding whether a complaint states a colorable claim,

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

a court must extend a certain measure of deference in

678 (2009). Although the court should construe the factual

favor of pro se litigants, Nance v. Kelly, 912 F.2d 605,

allegations in a light most favorable to the plaintiff, “the tenet

606 (2d Cir.1990) (per curiam), and extreme caution should

that a court must accept as true all of the allegations contained

be exercised in ordering sua sponte dismissal of a pro se

in a complaint is inapplicable to legal conclusions.” Iqbal, 556

complaint before the adverse party has been served and the

U.S. at 678. “Threadbare recitals of the elements of a cause

parties have had an opportunity to address the sufficiency

of action, supported by mere conclusory statements, do not

of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d

suffice.” Id. (citing Twombly, 550 U.S. at 555). Thus, “where

37, 41 (2d Cir.1983). However, the court also has an

the well-pleaded facts do not permit the court to infer more

overarching obligation to determine that a claim is not legally

than the mere possibility of misconduct, the complaint has

frivolous before permitting a pro se plaintiff's complaint

alleged-but it has not ‘show[n]'-‘that the pleader is entitled to

to proceed. See, e.g., Fitzgerald v. First East Seventh St.

relief.’ “ Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (holding that

2. Analysis of Plaintiff's Claims C. Whether to Permit Amendment

It is clear from plaintiff's complaint that the claims asserted Ordinarily, a court should not dismiss a complaint filed by a

on his behalf and on behalf of T.R.B. directly relate to pro se litigant without granting leave to amend at least once

a pending proceeding before Judge Cassidy in Tompkins “when a liberal reading of the complaint gives any indication

County Family Court regarding the custody of T.R.B. and that a valid claim might be stated.” Branum v. Clark, 927 F.2d

his siblings. Dkt. No. 1 at 6. Pursuant to Younger v. Harris, 698, 704–05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) ( “The

401 U.S. 37, 43–45 (1971), and its progeny, however, a court should freely give leave when justice so requires.”);

federal district court does not have jurisdiction over an action see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp.

seeking injunctive or declaratory relief “where ‘1) there is 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where

an ongoing state proceeding; 2) an important state interest court could “not determine that the plaintiffs would not,

is implicated; and 3) the plaintiff has an avenue open for under any circumstances, be able to allege a civil RICO

review of constitutional claims in state court.’ “ Parent v. N.Y., conspiracy”). An opportunity to amend is not required,

485 F. App'x 500, 503 (2d Cir.2012) (quoting Liberty Mut. however, where “the problem with [the plaintiff's] causes of

Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir.2009)). The action is substantive” such that “better pleading will not cure

Younger doctrine “applies with equal force to [both criminal it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see

and] civil proceedings,” including proceedings pending in also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48

family courts. Parent, 485 F. A'ppx at 503; Donkor v. City (2d Cir.1991) (“Of course, where a plaintiff is unable to allege

of N.Y. Human Res. Admin. Special Servs. for Children, 673 any fact sufficient to support its claim, a complaint should

F.Supp. 1221, 1224 (S.D.N.Y.1987). be dismissed with prejudice.”). Stated differently, “[w]here

it appears that granting leave to amend is unlikely to be

*4 In this case, it is clear from plaintiff's complaint that productive, ... it is not an abuse of discretion to deny leave to

the three conditions necessary to establish Younger abstention amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d

are satisfied. First, as discussed above, there is an ongoing Cir.1993); accord, Brown v. Peters, No. 95–CV–1641, 1997

proceeding in Tompkins County Family Court concerning WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).

plaintiff and the custody of his children. Dkt. No. 1 at 6.

Second, “[a] state plainly has an interest in the outcome of *5 In this case, the court is precluded from adjudicating

a child custody dispute adjudicated in its courts.” Grieve the claims asserted in plaintiff's complaint on his behalf

v. Tamerin, 269 F.3d 149, 152–53 (2d Cir.2001). Turning and on behalf of T.R .B. due to the pending proceeding in

to the third condition, “the relevant question under Younger Tompkins County Family Court, and no amendment to the

is whether the state's procedural remedies could provide complaint could cure this defect. Accordingly, I recommend

the relief sought not whether the state will provide the that plaintiff not be granted leave to replead.5

constitutional ruling which the plaintiff seeks.” Spargo v.

N.Y. State Comm'n of Judicial Conduct, 351 F.3d 65, 79 (2d

Cir.2003) (quotation marks, alterations, emphasis omitted). III. SUMMARU AND RECOMMENDATION

Courts in this circuit have frequently concluded that a A review of plaintiff's application for leave to proceed IFP

pending proceeding in state family court “affords ... adequate reflects that he is eligible for that status. Because all of

opportunity for judicial review of [a plaintiff's] constitutional plaintiff's claims asserted both on his behalf and on behalf of

claims.” Best v. City of N.Y., No. 12–CV–7874, 2014 WL T.R.B. relate to an ongoing proceeding in Tompkins County

163899, at *10 (S.D.N.Y. Jan. 15, 2014); see also Hidalgo Family Court, however, I recommend that the court abstain

v. N.Y., 11–CV–5074, 2011 WL 5838494, at *3 (E.D.N.Y.21, from adjudicating any of them. Based upon the foregoing, it

2011); Reinhardt v. Mass. Dep't of Soc. Servs., 715 F.Supp. is hereby

1253, 1257 (S.D.N.Y.1989).

ORDERED that plaintiff's leave to proceed in this action in

Based upon the foregoing, I recommend that the court abstain forma pauperis (Dkt. No. 2) is GRANTED; and it is further

from addressing any of the claims asserted in the plaintiff's hereby respectfully

complaint, all of which relate directly to the proceeding

pending in Tompkins County Family Court. RECOMMENDED that plaintiff's complaint be DISMISSED

without leave to replead and without prejudice.

may lodge written objections to the foregoing report. Such copy of this report and recommendation upon the parties in

objections must be filed with the clerk of the court within accordance with this court's local rules.

FOURTEEN days of service of this report. FAILURE

TO SO OBJECT TO THIS REPORT WILL PRECLUDE Filed Sept. 4, 2014.

APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993). All Citations

Not Reported in F.Supp.3d, 2015 WL 151029

Footnotes

1 Plaintiff's complaint alludes to T.R.B.'s brother and sister, and plaintiff's IFP application indicates that plaintiff

has three children. Dkt. No. 1 at 5; Dkt. No. 2 at 2.

2 Plaintiff's complaint does not disclose the age of T.R.B. Dkt. No. 1.

3 The language of that section is ambiguous, in that it suggests an intent to limit availability of IFP status to

prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment

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

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

governing financial criteria. Hayes v. United States, 71 Fed. CI. 366, 367 (Fed.Cl.2006); see also Fridman v.

City of N.Y., 195 F.Supp.2d 534, 536 n. 1 (S.D.N.Y.2002).

4 Plaintiff is reminded that, although his IFP application has been granted, he will still be required to pay fees

that he incurs in this action, including copying and/or witness fees.

5 It is worth noting that plaintiff is precluded from pursuing claims on behalf of his son, T.R.B., pro se. See

Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990) (“[A] non-attorney parent

must be represented by counsel in bringing an action on behalf of his or her child.”); see also Fauconier

v. Comm. on Special Educ., No. 02–CV–1050, 2003 WL 21345549, at *1 (S.D.N.Y. June 10, 2003). In the

event my recommendation that plaintiff's complaint be dismissed without leave to replead is not adopted by

the district judge, and any of the claims asserted on behalf of T.R.B. survive, plaintiff must first obtain legal

representation to pursue those claims.

In addition, because Tompkins County DSS is not amenable to suit, Hoisington v. Cnty. of Sullivan, 55

F.Supp.2d 212, 214 (S.D.N.Y.1999), in the event any portion of the plaintiff's complaint survives review by

the district judge, I recommend that Tompkins County be substituted as a defendant in the place of Tompkins

County DSS.

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.