The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PETER GAKUBA,
Plaintiff,
1:24-CV-1043
V. (GTS/DJS)
LETITIA JAMES, et al.,
Defendants.
APPEARANCES:
PETER GAKUBA
Plaintiff, Pro Se
Baltimore, Maryland 21201
REPORT-RECOMMENDATION and ORDER!
The Clerk has forwarded for review a civil complaint filed by Plaintiff. Dkt. No.
1, Compl. Plaintiff has not paid the filing fee but has submitted an application to proceed
in forma pauperis, Dkt. No. 2, which the Court has granted. Also pending is a request to
supplement the Complaint, Dkt. No. 8, which in light of Plaintiff's pro se status, the Court
| grants.
' This matter was referred to the undersigned pursuant to L.R. 72.3(d).
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I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma
pauperis, “(2) .. . the court shall dismiss the case at any time if the court determines that
—...(B) the action . . . (1) is frivolous or malicious; (i1) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).?. Thus, even if a plaintiff meets the
financial criteria to commence an action in forma pauperis, it is the court’s responsibility
to determine whether the plaintiff may properly maintain the complaint that he filed in
this District before the court may permit the plaintiff to proceed with this action in forma
pauperis. See id.
In reviewing a pro se complaint, the court has a duty to show liberality toward pro
se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff)
had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if
the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.”
2 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 SS 319, 325 (1989).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a court should construe the factual allegations in the light most favorable
to the plaintiff, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Jd. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” □□□
at 679 (quoting FED. R. CIV. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
Thus, a pleading that only “tenders naked assertions devoid of further factual
«| enhancement” will not suffice. /d. (internal quotation marks and alterations omitted).
II. DISCUSSION
On June 29, 2015, Petitioner Peter Gakuba was convicted, pursuant a jury
verdict in the Circuit Court for the Seventeenth Judicial Circuit, Winnebago
County, Illinois, of three counts of aggravated sexual abuse. He was sentenced
to a total prison term of 12 years’ incarceration. His conviction was affirmed
on appeal, People v. Gakuba, 2017 IL App (2d) 150744-U, and the Illinois
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Supreme Court denied leave to appeal, People v. Gakuba, No. 122289, 2017
WL 4386407 (Ill. Sept. 27, 2017).
Gakuba v. Doe, 2022 WL 561669, at *1 (S.D.N.Y. Feb. 22, 2022). This case is another
in a series of cases litigated nationwide by Plaintiff seeking to, in some way, challenge
y| that conviction. See, e.g., Gakuba vy. D.C. Att'y Gen., 2023 WL 3274310, at *2 (D.D.C.
May 1, 2023); Gakuba v. Hollywood Video, Inc., et al., 2015 WL 5737589 (D. Or. Sept.
30, 2015); Gakuba v. Hollywood Video, LLC., et al, 2015 WL 1537781 (E.D. Cal. Apr.
6, 2015). Broadly stated, the Complaint alleges that law enforcement officials improperly
obtained driver and video rental information about Plaintiff as part of the investigation
into the alleged criminal conduct that gave rise to his conviction. See generally Compl.
“| at JJ 1-3. Much of the Complaint, however, contains legal arguments about the unjustness
of his conviction and in support of his arguments that this information was improperly
obtained, rather than factual allegations specifically outlining exactly what is alleged to
have occurred and how the three named Defendants were involved.
For the reasons set forth below, the Complaint should be dismissed.
A. Personal Jurisdiction
The Complaint asserts claims against the Attorney General of the United States
and the Attorney General of Illinois. Comp. at 64 & 66. It fails, however, to establish
how this Court has jurisdiction over either.
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It is clearly established that “the exercise of personal jurisdiction over a defendant
is informed and limited by the U.S. Constitution’s guarantee of due process.” Brown v.
Lockheed Martin Corp., 814 F.3d 619, 625 (2d Cir. 2016); Chloe v. Queen Bee of Beverly
Hills, LLC, 616 F.3d 158, 169 (2d Cir. 2010). The Supreme Court’s decisions in this area
“have differentiated between general or all-purpose jurisdiction, and specific or case-
linked jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414,
nn. 8 & 9 (1984)).
1. General Jurisdiction
“General, all-purpose jurisdiction permits a court to hear any and all claims against
an entity.” Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 134 (2d Cir. 2014) (internal
quotations omitted). “For an individual, the paradigm forum for the exercise of general
jurisdiction is the individual’s domicile.” Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. at 924. Neither Garland nor Raoul is alleged to be domiciled in New
York. “For a New York court to exercise general jurisdiction over a nonresident
«| defendant, that defendant must be engaged in such a continuous and systematic course of
doing business here as to warrant a finding of its presence in this jurisdiction.” Beskrone
v. Berlin, 656 F. Supp. 3d 496, 508 (S.D.N.Y. 2023) (internal quotations and citations
omitted). Nothing in the Complaint offers any basis for finding that either of these
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Defendants has availed themselves of New York in such a regular and systematic manner
as to subject them to this Court’s general jurisdiction.
B. Specific Jurisdiction
“Specific jurisdiction over a nonresident defendant satisfies due process when: (1)
the defendant has purposefully availed itself of the privilege of conducting activities
within the forum State; (2) the claim at issue arises out of or relates to the defendant’s
forum conduct; and (3) the exercise of jurisdiction is reasonable under the circumstances.”
In re Welspun Litig., 2019 WL 2174089, at *10 (S.D.N.Y. May 20, 2019) (internal
quotations omitted) (citing cases); see also U.S. Bank Nat’l Ass’n v. Bank of Am. N.A.,
916 F.3d 143, 150 (2d Cir. 2019). “Or put just a bit differently, there must be an affiliation
between the forum and the underlying controversy, principally, an activity or an
occurrence that takes place in the forum State and is therefore subject to the State’s
regulation.” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 359-60
(2021) (internal quotations, alterations, and citations omitted). Here, too, Plaintiff's
allegations offer no basis for finding that this Court has specific jurisdiction over these
«| Defendants. The events underlying this case took place in Illinois during the course of a
criminal investigation there. The Complaint offers no basis for finding that either
Attorney General Garland or Attorney General Raoul is subject to this Court’s jurisdiction
regarding those events.
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B. Driver’s Privacy Protection Act
Plaintiffs first cause of action is under the Driver’s Privacy Protection Act.
Compl. at J] 163-166. That statute does provide a cause of action against “[a] person
who knowingly obtains, discloses or uses personal information, from a motor vehicle
record, for a purpose not permitted under this chapter shall be liable to the individual to
whom the information pertains.” 18 U.S.C. § 2724(a).
In a straightforward fashion, section 2724(a) sets forth three elements giving
rise to liability, 1.¢e., that a defendant (1) knowingly obtained, disclosed or used
personal information, (2) from a motor vehicle record, (3) for a purpose not
permitted. The plain meaning of the third factor is that it is only satisfied if
shown that obtainment, disclosure, or use was not for a purpose enumerated
under § 2721(b).
“| Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d
1107, 1111 (11th Cir. 2008). Specifically included in the list of permissible uses is “use
by any government agency, including any court or law enforcement agency, in carrying
out its functions, or any private person or entity acting on behalf of a Federal, State, or
local agency in carrying out its functions.” 42 U.S.C. § 2721(b)(1). Plaintiff's own
allegation is that law enforcement used his protected personal information as part of their
investigation of his conduct. Compl. at § 3. While the Court understands Plaintiff to
allege that he had not engaged in any criminal activity, his own pleadings at this stage
indicate that the alleged use of his personal information was by law enforcement
personnel conducting a criminal investigation which is clearly a permissible use. As a
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result Plaintiff has expressly failed to allege a violation of the statute. This claim,
therefore, should be dismissed, though with leave to amend to permit Plaintiff to set forth
how he alleges the activity violated the statute.
C. Video Privacy Protection Act
Plaintiff next alleges that Defendants violated his rights under the Video Privacy
Protection Act by improperly using his New York driver information to obtain video
rental records. Compl. at Jf 167-171.
The Video Privacy Protection Act provides a cause of action against “[a] video
tape service provider who knowingly discloses, to any person, personally identifiable
information concerning any consumer of such provider.” 18 U.S.C.A. § 2710(b)(1). The
statute does provide certain exceptions. 18 U.S.C.A. § 2710(b)(2). As relevant here,
however, the Court notes that the right of action provided by the statute requires Plaintiff
to “allege that . . . a defendant is a video tape service provider.” Addi v. Int’l Bus.
Machines, Inc., 2024 WL 2802863, at *3 (S.D.N.Y. May 31, 2024) (internal quotations
omitted). Plaintiff has not done so either as to any of the individually named Defendants,
could he credibly do so. This claim, therefore, should be dismissed
D. Constitutional Claims
1. Personal Involvement
Any claim under section 1983 requires that the plaintiff allege and establish the
personal involvement of the defendants. Kravitz v. Purcell, 87 F.4th 111, 129 (2d Cir.
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2023). Similar to a claim under section 1983 any claim asserted against a federal official
under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971) requires a showing of personal involvement. Sash v. United States, 674 F.
Supp. 2d 531, 542 (S.D.N.Y. 2009).* To establish this personal involvement, a plaintiff
cannot simply assert that an individual was a person in a supervisory capacity over others
and is liable because of the actions of those officials, instead a Plaintiff “must establish a
deliberate, intentional act on the part of the defendant to violate the plaintiffs legal
rights.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020).
In each of Plaintiffs constitutional claims, he contends that Defendants are liable
because they “participated in real-time (or failed to intervene post-hoc)” in the purported
illegal conduct of the criminal investigation involving him. Compl. at 94 164, 168. 174,
181, 187, & 194. The criminal investigation in this case took place in 2006. Compl. at J
72; see also People v. Gakuba, 2017 WL 1278078 (UL App. Ct. Mar. 31, 2017). The
Court takes judicial notice under FED. R. EVID. 201(b) that none of the Defendants held
their current positions at that time. James became the Attorney General of New York in
2019, after her election in 2018. See https://ag.ny.gov/about/meet-letitia-james. The
same is true regarding Defendant Raoul. See
https://illinoisattorneygeneral.gov/about/biography. Merrick Garland became the United
This Recommendation assumes, solely for present purposes, that Plaintiff could even maintain a Bivens action in
this context. Any amendment permitted by the District Court should specifically address how a Bivens claim would
be permissible on the facts set forth by Plaintiff. 9.
States Attorney General in 2021. See https://www.justice.gov/ag/bio/attorney-general-
merrick-b-garland. Asa result, “plaintiff fails to allege any facts to support a claim that
defendant[s] had any direct involvement with, knowledge of, or responsibility for the
alleged deprivation of plaintiff’s civil rights,” Cohen v. Holder, 2011 WL 809773, at *2
(E.D.N.Y. Mar. 1, 2011), with respect to the allegation that they “participated in real-
time.”
The nature of Plaintiffs claim that these Defendants have failed to intervene post-
hoc is entirely unclear from the Complaint.
2. Official Capacity Claims
Official capacity claims against Defendants James and Raoul for monetary
damages are also subject to dismissal because they are barred by the Eleventh
Amendment. Tripathy v. McKoy, 103 F.4th 106, 116 (2d Cir. 2024) (citing Davis v. New
York, 316 F.3d 93, 101-02 (2d Cir. 2002)). Sovereign immunity likewise bars a claim
against Defendant Garland in his official capacity. Robinson v. Overseas Mil. Sales
Corp., 21 F.3d 502, 510 (2d Cir. 1994).
A Il. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that the Motion to Supplement the Complaint (Dkt. No. 8) is
GRANTED; and it is
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RECOMMENDED, that Plaintiff's Complaint, as supplemented, be
DISMISSED; and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)* days within
which to file written objections to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).
Dated: October 1, 2024
Albany, New York
Steught
US-Magistrate Judge
4 Tf you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. FED. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. CIV. P. 6(a)(1)(C).
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