Lamothe v. Brown

UNITED STATES DISTRICT COURT

DISTRICT OF VERMONT

JEFFREY LAMOTHE,

Plaintiff,

Vv. 5:22-CV-161

(TJM/CFH)

COLLEEN BROWN,

Defendant.

JEFFREY LAMOTHE,

Plaintiff,

Vv. 5:22-CV-162

(TJM/CFH)

BANKRUPTCY COURT, et al.,

Defendants.

JEFFREY LAMOTHE,

Plaintiff,

V. 5:22-CV-163

(TJM/CFH)

BANKRUPTCY COURT, et al.,

Defendants.

JEFFREY LAMOTHE,

Plaintiff,

Vv. 5:22-CV-164

(TJM/CFH)

HEATHER COOPER, et al.,

Defendants.

APPEARANCES:

Jeffrey Lamothe

17 Potter Ave., Apt. B

Granville, New York 12832

Plaintiff pro se

CHRISTIAN F. HUMMEL

U.S. MAGISTRATE JUDGE

a

REPORT-RECOMMENDATION & ORDER

Plaintiff pro se Jeffrey Lamothe commenced 5:22-CV-161, LaMothe v. Brown, on

August 31, 2022, with the filing of an application for leave to proceed in forma pauperis

(“IFP”) (Dkt. No. 1-1), complaint (Dkt. No. 1-2) (“Complaint”), and a “Motion for

Settlement” (Dkt. No. 3).1 On September 4, 2022, the U.S. District Court for the District

of Vermont disqualified itself pursuant to 28 U.S.C. § 445(a) and directed the case be

reassigned to a U.S. District Judge in the Northern District of New York. On September

16, 2022, the case was reassigned to Senior U.S. District Judge McAvoy and the

undersigned. On September 27, 2022, plaintiff filed a document titled, “Alterations

Lost’s [sic], Cost’s [sic], Damage’s [sic] Foregoing Motion.” Dkt. No. 6. On October 4,

2022, plaintiff filed document titled, “Motion for Summary Judgment.” Dkt. No. 7.

Presently before the Court for review is plaintiff's in forma pauperis application and

review of his complaint pursuant to 28 U.S.C. §1915.

|. In Forma Pauperis

1 Plaintiff commenced three other actions on the same day. These are discussed, infra, in section II A.

After reviewing plaintiffs IFP application, Dkt. Nos. 1, 1-1, the Court concludes

that plaintiff financially qualifies to proceed IFP for purposes of filing.*

ll. Initial Review4

A. Consolidation

° “Rule 42(a) of the Federal Rules of Civil Procedure provides for the

consolidation of actions pending before the court which involve “a

common question of law or fact.” FED. R. Civ. P. 42(a)(2). As the Second

Circuit has recognized, “[t]he trial court has broad discretion to determine

whether consolidation is appropriate,” Johnson v. Celotex Corp., 899 F.2d

1281, 1284-85 (2d Cir. 1990), and may consolidate actions sua sponte.

Devlin v. Transportation Comme'ns Intern. Union, 175 F.3d 121, 130 (2d

Cir. 1999).

Boyde v. Uzunoff, No. 9:21-CV-0741 (TJM/ATB), 2021 WL 3185472, at *1 (N.D.N.Y.

July 28, 2021).

Here, in addition to the instant case, 5:22-CV-161, Lamothe v. Brown, plaintiff

commenced three other actions on the same day: 5:22-CV-162 (TJM/CFH), Lamothe v.

Bankruptcy Court, et al. (filed Aug. 31, 2022); 5:22-CV-163 (TJM/CFH); Lamothe v.

Bankruptcy Court, et al. (filed Aug. 31, 2022); 5:22-CV-164 (TJM/CFH), Lamothe v.

Cooper, et al. (filed Aug. 31, 2022).5 The Court has reviewed the complaints in each of

Although plaintiff commenced four actions, which the undersigned recommends be consolidated, the

undersigned is explicitly addressing the IFP application submitted in the first-filed action as the

information submitted with each case’s IFP application is essentially identical.

3 Plaintiff is advised that in forma pauperis status does not cover any costs and fees that may be

associated with this matter, including, but not limited to, any copying fees that may be incurred.

4 Plaintiff has also filed four other cases. At least three of the four cases appear to be related to the

instant case. Those cases, all filed in the U.S. District Court for the District of Vermont and reassigned to

this Court, are 5:22-CV-162, Lamothe v. Bankruptcy Court, et al. (filed Aug. 31, 2022); 5:22-CV-163,

Lamothe v. Bankruptcy Court, et al. (filed Aug. 31, 2022); 22-CV-164, Lamothe v. Cooper, et al. (filed

Aug. 31, 2022); and 2:22-CV-220, LaMothe v. Federal Court Clerk (filed Dec. 7, 2022).

5 On December 7, 2022, plaintiff commenced a fourth action in the District of Vermont, Lamothe v.

Federal Court Clerk, 2:22-CV-220 (TJM/CFH), which was also reassigned to Judge McAvoy and the

undersigned. Review of this filing, although very sparse, leads the Court to determine at this time that this

action appears distinct enough to proceed with a separate review. Thus, the § 1915 review of Lamothe v.

Federal Court Clerk, 2:22-CV-220 (TJM/CFH) (filed Dec. 7, 2022), will occur in a separate, future order.

these actions and determines that “common questions of law and fact exist in these

cases.” Boyde, 2021 WL 3185472, at *1. Although commenced separately, these

cases are essentially identical. Plaintiff appears to name the same defendants, and to

the extent it can be determined, the cases arise out of the same facts and

circumstances and raise the same claims in each of these four actions. Indeed, an

| identical photocopy of the complaint has been filed in each separate action. See 5:22-

CV-161, Dkt. No. 1-2 at 8-20; 5:22-CV-162 Dkt. No. 1-1 at 2-13; 5:22-CV-163

(TJM/CFH), Dkt. No. 1-1 at 6-17; 5:22-CV-164 (TJM/CFH), Dkt. No. 1-1 at 9-20.

Further, with the exception of one extra document filed in 5:22-CV-164, plaintiff includes

the same documents to each of the complaints in the different actions. See id.®

Accordingly, it is recommended that these four actions be consolidated, with

| 5:22-CV-161, Lamothe v. Brown as the lead case and 5:22-CV-162, 5:22-CV-163, and

5:22-CV-164 as member cases.

B. Complaint’

8 The complaint in each action is identical, including identical copies of service-related documents and

invoices, and a “motion” that appears to set forth plaintiffs monetary demands. The only real difference

between these actions is that some of the documents are filed in a different order. One exception to the

identical nature of these four actions is that, unlike in the other three actions, in 5:22-CV-164, Dkt. No. 1-1

at 5, there is a document that is not included in the other actions. This an Order, dated May 25, 2022,

from the U.S. Bankruptcy Court, District of Vermont, signed by U.S. Bankruptcy Judge Heather Z.

Cooper, denying a “sixth post-closing motion” and advising plaintiff that “[a]ny further post-closing filings

which fail to demonstrate cause or meet the requirements to reopen this case or support any other relief

that is available will be considered an abuse of process and the Court will consider the imposition of

sanctions.” Id.

? This Court's citation to the pages of plaintiff's complaint is to the pagination generated by CM/ECF, the

Court’s electronic filing system, located at the header of each page, and not to plaintiff's individual

pagination of the document.

At the top of each page of form complaint,® plaintiff writes “Civil-Criminal.” See

generally Dkt. No. 1-2. In the portion of the form complaint asking plaintiff to

demonstrate the basis for this Court’s jurisdiction and whether he seeks to proceed

before the Court on federal question jurisdiction or diversity of citizenship, plaintiff

writes, “Don’t Know Yet!!” Dkt. No. 1-2 at 2. Following the form complaint is a hand-

written document, the top of which states, “Civil, Criminal.” Dkt. No. 1-2 at 5. The

heading of the page further states, “Lawsuites [sic] (Contempt of Court) (Breech [sic] of

Contracts)’, “Alteration Four, Lawsuites [sic] Docket # 098-10014” Dkt. No. 1-2 at 5.

Plaintiff further states “Federal Court 11 Elmwood Ave, Burlington VT 05641 Filed

January 09, 2009 Re; Malpractice (Contempt of Court) (Breech [sic] of Court.”). Id.

Following this information, written as a title, is the word “Motion.” Id.

On the second page of the handwritten portion of the complaint, plaintiff lists the

defendants as “(1) Bankruptcy Court 151 West Street Rutland, VT 05701[;]

(2) Bankruptcy Court 59-67 Merchant Row Rutland, VT 05701[;] (3) Bankruptcy Court

11 Elmwood Ave Burlington, VT[;] (4) United States Trustee ?; (6) Vermont Attorney

General 109 State Street Montpelier, VT 05609-100. Dkt. No. 1-2 at 6. Page three of

the complaint contains a “certificate of service” wherein plaintiff “certifies” having

| “delivered the attached to all other parties to this case.” Id. at 7. Page four of the lists

the names of the defendants again. Id. at 8. Page five has a heading that states

“Bankruptcy Lawsuite [sic] file 01-09-09 Docket 09-10014 United States Bankruptcy

Court of Vermont Malpractice.” Id. at 9. Under this heading, it reads “Alteration One

presented years ago!! Alteration two presented years ago!! Alteration three as fallows

8 As the complaints in each action are essentially identical, for ease of reference and judicial efficiency,

the Court will cite only to the complaint filed in 5:22-CV-161, Dkt. No. 1-2.

[sic]!!” Id. It thereafter lists plaintiff's name, address, and “pro se”; “defendants; 4 of 6’;

the “Cohen & Rice Law Firm at 161 West Rutland, VT 05701 and 26 West Street,

Rutland, VT 05701.” Id. The sixth page again contains a heading that states

“Bankruptcy Lawsuite [sic] Filed 01-09-2009, Docket 09-10014,” “Alterations,”

“Malpractice”, “Bankruptcy Court Washington County Federal Division Bankruptcy 09-

4001.” Id. It also appears to list a caption of “Plaintiff Jeffrey P. Lamothe Pro-se V.

Defendant's [sic] Cohen & Rice Law Firm Rebecca Rice 4 of 6.” Id. Under this

“caption” states “Complaint Re: Malpractice.” Id. This “complaint” states the following:

(1) Not only what they didn’t do wright [sic] is what they did wrong!! (2)

What happened to my (A) Land, (B) Buildings? (3) What happened to my

monthly rental incomes? (4) What happened to my four hundred thousand

equity? (5) What happened to my Tax Wright [sic] Off’s [sic] & Credits? (6)

Why have | been denied multiple attempts of credit since two thousand an

[sic] nine as well as the most recent of September Two Thousand an [sic]

Twenty-One? (7) Why l’am [sic] | getting bribed, blackmailed an [sic]

provoked.

Id. at 10.

The same “caption” tops the seventh page with a heading that states, “Addition t

the Complaint’:

(9) More ways to pay for Mortgages, do [sic] to signs of malpractice then

anyone in the country (10) Placing docket 707-0-10 as a foreclosure

during the process of Bankruptcy aswell [sic] as fallowing [sic] through as

a wrongfull [sic] eviction in December of Two Thousand and Thirteen (11)

placing Docket 496-6-10 after a bankruptcy had been filed, on January

Nineth of Two Thousand an [sic] nine (1) Adding more debt to credit report

after bankruptcy had been filed

Id. at 11. The same “caption” tops the eighth page with a heading that states, “Addition

to the Complaint’:

(14) No escrow account for accounts receivable or debt from my rental

properties (15) allowing outsiders to invade, approach aswell [sic] as

falsify information, (16) (Timely Manner), (Timely Manner), (Timely

Manner) (17) Having [sic] a lawfirm [sic] without a cerifide [sic] accountant

(18) Releaseing [sic] assets, to other than myself (19) haveing [sic] two,

three possibly four differant [sic] female bankruptcy judges throughout the

seven years; (20) clerks avoiding all attempts of due process, (21)

changeing [sic] chapters as well as false findings in the process of

bankruptcy throughout the seven

Id. at 12.

5 On the eighth page also states, “Addition to the Complaint”:

(23)° Timely manner, timely manner, timely manner. (24) Loss of monies

up to one hundred thousand in renovations alone, of my own monies. (25)

after wrongfull [sic] eviction in December two thousand and thirteen of

thee [sic] Rutland Sheriffs Department Aswer [sic] as Vermont State

Police Department, thee [sic] house in Procter Vermont had been

ransacked aswell [sic] as everthing [sic] taken from thee [sic] inside aswell

[sic] as garage (26) possibly forgery, most times when malpractice

accures [sic] (27) possibly cover up, when malpractice accures [sic]

Id. at 13.

On the ninth page of the hand-written complaint, the same “caption” tops the

page with a heading that states, “Addition to the Complaint’:

(30)'° Didn’t fallow [sic] protocol of an accountant of bankruptcy to file

yearly taxes since 2009 (31) Refused all services of protocol aswell [sic]

as my many attempts to address many wrongdoings (32) numerous

attempts from myself to lawyers, courts, court clerks, attorney generals,

cities, supreme court of appeals, Supreme Court aswell [sic] as three

Superior Courts (33) No mortgage or combined mortgage has been

placed or enforced between thee [sic] first an [sic] seventh year.

m| ld. at 14.

On the tenth page of the hand-written complaint, the same “caption” tops the

page with a heading that states, “Addition to Complaints”:

(35) Protocol, Protocol, Protocol, (36) Hasn’t anybody listened to thee [sic]

Court recording’s [sic] (37) Read paper trail already presented

(handwritten) myself (38) Listen to Court recording, in my presents [sic] as

David Edwards, lawyer for GMAC Mortgage, what had been stated as

® There is no number 22 on this page or the prior page.

10 There is no number 28 or 29 on this page or the prior page.

false information (39) Contempt of Court aswell [sic] as breech [sic] of

contract has been practice in all matters of court proceeds [sic] (40) Loss

of personel [sic] items, aswell [sic] as tools needed for multyple [sic]

industries for myself to make money

Id. at 15.

On the eleventh page of the hand-written complaint, the same “caption” tops the

Page with a heading that states, “Addition to Complaints’:

(43)'' Do you know what courtroom this is? (44) Do you know what | can

do with four hundred thousand dallars [sic] just in equity? (45) Do you

know what | can do with four thousand dallars [sic] a month rental

income? (46) Actions prove I’ve been fileing [sic] lawsuites [sic] to a deaf,

dumb, and blind bar association, judicial bureau licensing board, police

departments, clerks, judges (47) Withholding evidence in all thirteen

courtrooms, will force myself no option to place lawsuites [sic] at state

Id. at 16.

On the twelfth page of the hand-written complaint, the same “caption” tops the

I

page with a heading that states, “Addition to Complaints”:

(4912) Wrongfull [sic] eviction multiple times in the mid winter months of

places I’ve owned aswell [sic] as places I’ve rented! (50) Probate Court of

my mother Mary Elizabeth Lamothe House Docket #312-5-19, on

Nineteen Jasmin Lane had been mishandled! (51) Loss of Drivers license

for five years as of not a moveing [sic] violation, as | use my vehicle for

floor installations (51) Contempt of court aswell [sic] as breech of

contracts.

Id. at 17.

On the thirteenth page of the hand-written complaint, the same “caption” tops the

page with a heading that states, “Addition to Complaints”:

(54)' withholding evidence, stolen identity, birth certificate had been

stolen, do [sic] to wrongfull [sic] evictions aswell [sic] as most of personal

information an [sic] court documents (55) waisted [sic] many hours of

travel time as well as time spent an [sic] preparations of dozen of court

11 There are no numbers 41 or 42 on this page or the prior page.

12 There is no number 48 on this page or the prior page.

13 There are no numbers 51, 52, or 53 on this page or the prior page.

handwritten documents of a plaintiff in lawsuites [sic] (56) houses

ransacked, broken into, stolen paper trail (57) lost living expenses, loss of

wages, loss rental income, taxes not being filed, damages contents of

Id. at 18.

On the fourteenth page of the hand-written complaint, the same “caption” tops

the page with a heading that states, “Addition to Complaints”:

° (58) Racketeering, corruption, conspiracy, human traffick [sic], money

loitering [sic], forgery, false paper trail, incorrect headings, debtors, dates,

tapeing [sic] recordings, video (59) Certified letters with return signature,

up to sixty of them, with no response besides of just a signed green

receipts. (60) Had twice as much monies invested in my houses then the

finace [sic] company had (61) federal accounts of my crimal [sic] record

(wrongfully) (62) wrongfull arrest warants [sic] asfore [sic] public defender

doings

Id. at 19.

The fifteenth page" of the handwritten complaint list the same “caption” but state

I

“Motion” and “Malpractice”

Alteration one, which has presented years ago Five Million[;] Alteration

two, which was presented years ago Six Million[;] Alteration Three, which

is presented at this date of Seven Million. The total which is eighteen

million to be granted to myself Jeffrey Peter Lamothe, no later than twenty

days of this motion of presented date, as losts [sic] and costs an [sic]

damages all at foregoing!

Id. at 20.

Plaintiff's complaint, on a page that contains the same “caption” with a title that

states, “Motion,” appears to set forth his demand for relief:

Alteration four of eight million dollars, which brings the total of twenty-six

million dollars, to be granted to myself Jeffrey Peter Lamothe [omitted] no

later than twenty day’s [sic], asfore [sic] this case #09-10014 has been in

process since two thousand an [sic] nine, all at lost, costs, damages, all

foregoing. Settlement of thee [sic] above will stop all foregoing lost, cost’s

14 The fifteenth and sixteenth pages of the hand-written complaint are identical. See Dkt. No. 1-2 at 20-

21.

[sic], damages aswell [sic] as further alterations, an [sic] criminal

charges!!”

Id. at 21. In a “conclusion,” plaintiff states that he “will settle for four million dollars

aswell [sic] as paying off Bershire [sic] Bank Credit Card Account [Omitted], no later

than ten day’s [sic] of this fourth alteration (after this date motion stands [illegible]).” Id.

Attached to the complaint are copies of invoices from the Rutland County

Sheriffs Department that appear to show that plaintiff used the Sheriffs Department for

service of plaintiff's complaint on defendants. See Dkt. No. 1-2 at 26-33.

C. Section 1915 Review

1. Legal Standards

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

I

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

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

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

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

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

proceed with his action. Where the plaintiff is proceeding pro se, the court must

rr!

consider the claims “liberally” and “interpret them ‘to raise the strongest arguments that

they suggest.” Cold Stone Creamery, Inc. v. Gorman, 361 F. App’x 282, 286 (2d Cir.

15 The language of section 1915 suggests an intent to limit availability of IFP status to prison inmates. Se

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’).

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

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

2002). Accordingly, a financial assessment and, if determined to be financially qualified, an initial review

of the complaint pursuant to section 1915 is required of all plaintiffs who seek to proceed IFP, regardless

of their incarceration status.

10

2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)). It

is well-established that “[p]ro se submissions are reviewed with special solicitude, and

‘must be construed liberally and interpreted to raise the strongest arguments that they

suggest.’” Matheson v. Deutsche Bank Nat'l Tr. Co., 706 F.Appx. 24, 26 (2d Cir. 2017)

(summary order) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d

Cir. 2006) (per curiam); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.

2008) (Where the plaintiff proceeds pro se, a court is “obliged to construe his pleadings

liberally.”) (quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).

However, this approach “does not exempt a [pro se litigant] from compliance with

relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d

Cir. 1983). “[T]he tenet that a court must accept as true all of the allegations contained

a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). The Court

may not “invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius,

618 F.3d 162, 170 (2d Cir. 2010) .

“The [Second Circuit]'s ‘special solicitude’ for pro se pleadings, Ruotolo v. IRS,

28 F.3d 6, 8 (2d Cir. 1994), has its limits, because pro se pleadings still must comply

with Rule 8(a) of the Federal Rules of Civil Procedure.” Kastner v. Tri State Eye, No.

19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019).'® Pleading

guidelines are set forth in the Federal Rules of Civil Procedure. Specifically, Rule 8

provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a

16 Unless otherwise noted, copies of all unpublished cases cited within this Report-Recommendation &

Order have been provided to plaintiff.

11

short and plain statement of the claim showing that the pleader is entitled to relief." See

FeD. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being

asserted so as to permit the adverse party the opportunity to file a responsive answer,

prepare an adequate defense and determine whether the doctrine of res judicata is

applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation

marks and citations omitted). Rule 8 also requires the pleading to include:

(1) a short and plain statement of the grounds for the court’s jurisdiction

(2) a short and plain statement of the claim showing that the pleader is

entitled to relief; and

(3) a demand for the relief sought... .

FeD. R. Civ. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make

clear that each allegation contained in the pleading “must be simple, concise, and

direct.” Id. at 8(d).

Further, Rule 10 of the Federal Rules provides:

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

limited as far as practicable to a single set of circumstances. A later

pleading may refer by number to a paragraph in an earlier pleading. If

doing so would promote clarity, each claim founded on a separate

transaction or occurrence — and each defense other than a denial — must

be stated in a separate count or defense.

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

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

F.R.D. at 54 (internal quotation marks and citations omitted).

“In reviewing a complaint . . . the court must accept the material facts

alleged in the complaint as true and construe all reasonable inferences in

the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.

1994) (citation omitted). However, “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal

12

conclusions. Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 622, 678 (2009). 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

5 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.” Iqbal, 556

U.S. at 678 (citation omitted).

Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading

that only “tenders naked assertions devoid of further factual enhancement” does not

suffice.” Id. (internal quotation marks and alterations omitted). Allegations that “are so

. vague as to fail to give the defendants adequate notice of the claims against them” are

subject to dismissal. Sheehy v. Brown, 335 F. App'’x 102, 104 (2d Cir. 2009) (summary

order). Indeed, a complaint that fails to comply with these pleading requirements

“presents far too a heavy burden in terms of defendants’ duty to shape a comprehensiv

defense and provides no meaningful basis for the Court to assess the sufficiency of

their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second

Circuit has held, “[W]hen a complaint does not comply with the requirement that it be

short and plain, the court has the power, on its own initiative . . . to dismiss the

complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted).

However, “[d]ismissal . . . is usually reserved for those cases in which the complaint is

so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if

any, is well disguised.” Id. (citations omitted).

13

2. Analysis

a. Jurisdiction

Plaintiff fails to demonstrate this Court’s jurisdiction. He does not state which

constitutional rights, federal laws, or state laws he believes defendants to have violated.

Plaintiff does not explain how all of the named defendants were personally involved in

| the alleged violations of laws or rights. There is almost no factual support or context for

his complaint, which is presented as a disjointed stream of consciousness. Further, it is

not fully clear who he intends to name as defendants in this action as he names Judge

Colleen Brown in the case caption, and Colleen Brown and “Bankruptcy Court” as

defendants in the form complaint, but later lists bankruptcy courts at four different

addresses in Vermont, the “United States Trustee,” Cohen & Rice Law Firm, and the

m|“Wermont Attorney General.” Dkt. No. 1-2 at 6.

Federal jurisdiction is only available when (1) a “federal question” is presented, o

(2) the plaintiff and all of the defendants are of diverse citizenship and the amount in

controversy exceeds $ 75,000. See 28 U.S.C. §§ 1331, 1332. To invoke federal

question jurisdiction, the plaintiff's claims must arise “under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1331. “Federal question jurisdiction may

| properly be invoked only if the plaintiffs complaint necessarily draws into question the

interpretation or application of federal law.” New York v. White, 528 F.2d 336, 338 (2d

Cir. 1975). When a court lacks subject matter jurisdiction, dismissal is mandatory. See

Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Therefore, although courts “constru

a pro se litigant's complaint liberally, a plaintiff attempting to bring a case in federal cour

must still comply with the relevant rules of procedural and substantive law, including

14

establishing that the court has subject matter jurisdiction over the action.” Ally v.

Sukkar, 128 F. App'x 194, 195 (2d Cir. 2005) (summary order) (internal citation omitted)

As it appears all named defendants reside in Vermont, plaintiff is a resident of

New York State, and plaintiff alleges that the amount in controversy is greater than

$75,000, he would be able to proceed under this Court’s diversity jurisdiction. The only

claims plaintiff explicitly identifies is legal malpractice and breach of contract, which

would be assessed under state law. As will be discussed below, the application of

special solicitude reveals to the undersigned that plaintiff may also be attempting to

raise constitutional claims for violation of his due process rights in connection with an

eviction. Such claims, if properly pleaded in a future complaint and demonstrated to be

timely, could also demonstrate the existence of this Court’s federal question jurisdiction.

I

b. Federal Rules of Civil Procedure 8, 10, and 20

Plaintiff's complaint is violative of Rules 8 and 10 of the Federal Rules of Civil

Procedure. Plaintiff's amended complaint is clearly “a case[] in which the complaint is

so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if

any, is well disguised." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations

omitted). First, plaintiff does not provide any facts to provide context for his complaint.

Plaintiff's complaint does not explain the background and bases of his complaint; the

laws he alleges the defendants violated beyond unexplained and largely isolated

references to “malpractice, “breech [sic] of contract,” “racketeering, “corruption,”

“conspiracy,” “human traffick[ing],” and “money loitering.”'” Dkt. No. 1-2 at 18. Further,

1” It is likely that this is a malapropism and that plaintiff intended to state money laundering.

15

beyond making these references to common law and criminal laws, plaintiff does not se

forth how defendants violated any laws or rights or factual support or context to when

the alleged incidents occurred. Although plaintiff names several defendants but does

not explain their involvement in the violation of any laws or constitutional rights, with

many defendants never mentioned anywhere in the body of the complaint. See, e.g.,

| Dkt. No. 1-2 at 6, 14 (naming “attorney generals” and “Vermont Attorney General” in the

“caption” or heading, but failing to provide any factual support or explanation of personal

involvement).

The lack of factual support, context, or clear statements of the claims and

explanations as to how each defendant is personally involved in the alleged violation of

each area of law or right asserted renders plaintiff's complaint plainly violative of Rule 8

the complaint does not “give the defendants adequate notice of the claims against

them[.]” Sheehy, 335 F. App'x at 104.

To the extent plaintiff's complaint implores the Court to perform independent

research to ascertain the facts or background of his complaint or of his 2009 bankruptcy

case — “Hasn't anybody listened to thee [sic] Court recording’s [sic][,]” “Read paper trail

already presented (handwritten) myself[,]” “ Listen to Court recording[,]”) — this neither a

| feasible demand nor a proper one. Dkt. No. 1-2 at 15. Plaintiff has not provided copies

of any recordings or “paper trail,” nor an explanation of how they apply to any claims he

seeks to bring before this Court. If plaintiff wishes this Court to consider any facts,

claims, or documents, such information must be included within the complaint or

attached thereto and their relevance sufficiently explained.

16

Plaintiff's complaint, to the extent discernable, also violates Rule 20 of the Fed.

R. Civ. P. Rule 20 provides that a plaintiff may not pursue unrelated claims against

multiple defendants.” Kastner, 2019 WL 6841952, at *2 (citing FED. R. Civ. P. 20(a)(2)

(“Persons . . . may be joined in one action as defendants if: (A) any right to relief is

asserted against them jointly, severally, or in the alternative with respect to or arising

out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.”) and

Peterson v. Regina, 935 F. Supp. 2d 628, 638 (S.D.N.Y. 2013) (“Case law makes clear

that [i]n the absence of a connection between Defendants’ alleged misconduct, the

mere allegation that Plaintiff was injured by all Defendants is not sufficient [by itself] to

join unrelated parties as defendants in the same lawsuit pursuant to Rule 20(a).”))

| (additional citation and quotation marks omitted). Plaintiff makes passing references to

legal malpractice, several criminal claims, an arrest involving the Sheriff's Office, an

eviction, bankruptcy proceedings, and breach of contract, among other things. Althoug

the complaint is currently too vague and confused for the Court to assess whether there

is a sufficient connection between any or all of these potential claims, the Court notes

that, to the extent plaintiff seeks to bring multiple, unconnected claims against various

unrelated defendants, such an approach is prohibited by Rule 20.

c. Legal Malpractice Claims

To the extent this Court can surmise, it appears that plaintiff may be seeking to

bring legal malpractice claims against the lawyers and/or law firm who represented him

in a 2009 bankruptcy proceeding, Cohen & Rice Law Firm and/or Rebecca Rice, and

against the bankruptcy judge who oversaw that proceeding, Colleen Brown. See

17

generally Dkt. No. 1-2. Under Vermont law, the statute of limitations depends on a

“determination of the appropriate limitations period depends upon the nature of the

harm for which recovery is sought and not upon the nature of the action brought.”

Bentley v. Northshore Dev., Inc., 935 F. Supp. 500, 503 (D. Vt. 1996) (citing Kinney v.

Goodyear Tire & Rubber Co., 134 Vt. 571, 575 (1976). For claims for legal malpractice,

where only economic damages are alleged, the appropriate statute of limitations is six

years. See, e.g., Bentley, 935 F. Supp at 503-504. If plaintiff's representation occurred

in 2009, the statute of limitations would have expired for any legal malpractice claim

arising out of that representation six years later, in 2015. See 12 V.S.A. § 511. As

plaintiff commenced this action in 2022, it is untimely. Although equitable tolling can, in

rare instances, toll a statute of limitations, plaintiff provides no support or argument such

m| that the Court may assess whether equitable tolling could potentially apply.

Accordingly, it is recommended that, to the extent plaintiff's complaint may be raising a

claim for legal malpractice against his former lawyer/law firm, such claim be dismissed

without prejudice and with opportunity to amend should plaintiff seek to demonstrate the

applicability of equitable tolling such that a claim for legal malpractice would not be time

barred.

Plaintiff also seems to be seeking to bring a claim for legal malpractice against

Judge Colleen Brown, the bankruptcy judge presiding over plaintiff's bankruptcy

proceedings. However, as Judge Brown presided over the bankruptcy proceedings as

a judicial officer, but did not represent plaintiff as his attorney, he cannot bring a claim

against her for legal malpractice. As will be discussed and assessed below, it is

possible that plaintiff intended to raise a claim for judicial misconduct.

18

d. Judicial Immunity

To the extent plaintiff's complaint can be interpreted as attempting to bring a

claim for judicial misconduct against Judge Colleen Brown, as is endemic to this entire

complaint, plaintiff fails to provide factual context to support or context for such a claim.

Despite the complete dearth of facts or context, to the extent plaintiff seeks to allege

| claims of misconduct against Judge Brown in connection with her role in overseeing,

managing, or administration of his bankruptcy case, judicial misconduct claims do not li

for actions that occurred in the judge’s role as judge. Judges have absolute immunity

from suits for damages arising out of judicial acts performed in their judicial capacities.

See Mireles v. Waco, 502 U.S. 9, 11 (1991). Absolute judicial immunity “is not

overcome by allegations of bad faith or malice,” nor can a judge “be deprived of

m| immunity because the action he took was in error . . . or was in excess of his [or her]

authority.” Id. at 11, 13 (quotations and citations omitted). Judicial immunity may only

be overcome where the court is alleged to have taken non-judicial actions or if the

judicial actions taken were “in the complete absence of all jurisdiction.” Id. at 11-12. It

is not clear whether plaintiff is also seeking to raise a misconduct claim against other

employees of the bankruptcy court. See Dkt. No. 1-2 at 12. However, absolute judicial

| immunity also extends to court clerks/employees who are performing tasks “which are

judicial in nature and an integral part of the judicial process.” Rodriguez v. Weprin, 116

F.3d 62, 66 (2d Cir. 1997).

As the Court can discern no such allegation, the judicial immunity applies to bar

all claims against Judge Brown in connection with her handling of plaintiff's bankruptcy

case as week as to all court clerks who performed judicial tasks. Although exceptions

19

to judicial immunity exist only in the narrow circumstance noted above, because

plaintiffs complaint is so factually sparse such that the Court cannot say with certainty

whether plaintiff is contending that any of Judge Brown’s alleged actions were “non-

judicial” or done “in the complete absence of all jurisdiction,” it is recommended that, to

the extent plaintiff's complaint can be read as raising a claim for judicial misconduct

° against Judge Colleen Brown or unidentified court clerks, such claims be dismissed

without prejudice.

e. Outcome of Bankruptcy Proceedings

To the extent plaintiff disagrees with the outcome of his 2009 bankruptcy case or

seeks this Court to review the outcome of any of his bankruptcy proceedings, such an

attempt is untimely. Although U.S. District Courts have jurisdiction to hear appeals

from, “final judgments, orders, and decrees” and certain interlocutory orders and

decrees from the bankruptcy court, 28 U.S.C. § 158(a), “a notice of appeal must be filed

with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree

being appealed.” FED. R. BANKR. 8002; see In re NXXI Inc., 216 F. Supp. 3d 381, 388

(S.D.N.Y. 2016). Thus, plaintiffs seeking review of a 2009'8 bankruptcy case by filing

| new actions in 2022, thirteen years later, is plainly untimely. '®

18 Although plaintiff's bankruptcy proceeding was commenced in 2009, it is not entirely clear the date of

the entry of judgment. However, as the Court has an Order from the Bankruptcy Court indicating that

plaintiff had submitted a sixth post-closing motion, and that order is dated May 23, 2022, and plaintiff

commenced these federal actions in August 31, 2022, even in the highly unlikely (as plaintiff commenced

his bankruptcy action in 2009, it would appear unlikely to still be pending in 2022) circumstance that

plaintiff's final judgment in his bankruptcy proceeding occurred in May 2022,s because a plaintiff has

fourteen days to appeal a judgment, order, or decree of a bankruptcy court, this action would still be

untimely. FED. R. BANKR. 8002.

18 The Court observes that 28 U.S.C. § 158(a)(1), grants a district court jurisdiction over appeals of “final

judgments, orders, and decrees[,]” “from interlocutory orders and decrees issued under section 1121(d) o

title 11 increasing or reducing the time periods referred to in section 1121 of such title[,]’ or “with leave o

20

To the extent plaintiff is attempting another chance at review of the outcome of

his bankruptcy proceeding by commencing a separate civil action, such an approach is

not permissible. See, e.g., Zarour v. U.S. Bank, N.A. as a trustee for Truman 2016 SC6

Title Tr., No. 21-CV-2928 ((LTS), 2021 WL 3500921, at *2 (S.D.N.Y. Aug. 9, 2021)

(“[T]he proper vehicle for Plaintiff to challenge the Bankruptcy Court’s decision to

| dismiss the petition is Plaintiff's appeal of that decision, not this new civil action.”).

In one of the four actions plaintiff filed, plaintiff includes a copy of an Order dated

May 24, 2022, from the United States Bankruptcy Court, District of Vermont, signed by

U.S. Bankruptcy Judge Heather Z. Cooper. Therein, the Judge notes that plaintiff

commenced a Chamber 13 bankruptcy petition on January 9, 2009, which was

converted to a chamber 7 bankruptcy proceeding effective September 21, 2010. See

m| 5:22-CV-164 (“Lamothe IV”), Dkt. No. 1-1 at 5. In the motion, the Judge Cooper denies

plaintiff's “sixth post-closing motion in this case,” holding that plaintiff's motion “fails to

demonstrate cause or meet the requirements to re-open the Debtor's case under 11

U.S.C. § 350(b) or support any other relief that is available or warranted based upon the

record of this closed case” and advised plaintiff that “[an]y further post-closing filings

which fail to demonstrate cause or meet the requirements to reopen this case or suppo

m| any other relief that is available will be considered an abuse of process and the Court

will consider the imposition of sanctions.” Id.

In sum, to the extent plaintiff is attempting to appeal the outcome of his

bankruptcy proceeding or otherwise seek review of the decision, because this Court

does not have jurisdiction over that claim, it is recommended that such claim be

the court, from other interlocutory orders and decrees[.]” Plaintiff does not state whether he is purporting

to seek “appellate” review over a final judgment, order, or decree from the bankruptcy court

21

dismissed without prejudice, but without opportunity to amend. See Katz v. Donna

Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (“[A] complaint must be dismissed

without prejudice where the dismissal is due to the court's lack of subject matter

jurisdiction[.]’); see also Amore Love, No. 1:21-CV-64 (DNH/ATB), 2021 WL 256945, at

*6,n.15 (N.D.N.Y. Jan. 26, 2021) (citations omitted) (“Because this court is

o recommending dismissal for lack of subject matter jurisdiction, the court is constrained

to recommend dismissal ‘without prejudice,’ although it is unlikely that this petitioner will

be able to bring such an action in any court in the country, state or federal. However,

the court is recommending that petitioner be denied the opportunity to amend because i

is clear that any amendment would be futile.”).

Plaintiff also makes several references to “contempt of court” but does not

explain. To the extent that plaintiff is seeking that this Court hold any defendant in

contempt of court, as no defendant has been properly served nor has appeared in this

action, it is not possible for any defendant to have been in contempt of this Court’s

orders. Further, this Court does not have the authority to hold a defendant in contempt

of any other court’s orders. Accordingly, this claim is dismissed with prejudice.

f. Due Process

Plaintiff, without providing any contextual support, makes a passing reference to

due process. See Dkt. No. 1-2 at 12 (“clerks avoiding all attempts of due process’).

This bare statement is insufficient to raise a due process violation. First, his statement

of “clerks” does not identify the persons against whom he seeks to bring them claim and

he provides no facts or support for how his due process rights were violated.

22

Even if plaintiff seeks to bring a claim for violation of his due process rights under

section 1983, in addition to failing to provide any factual context for this claim, to the

extent plaintiff's potential due process claim arises out of his 2009 bankruptcy

proceeding, he fails to demonstrate why such a claim would not be barred by the statut

of limitations. In § 1983 actions, the applicable statute of limitations is a state's “general

or residual statute for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d

76, 79 (2d Cir. 2002). The statute of limitations for claims brought pursuant to § 1983 is

determined by state law, and in the State of Vermont, the statute of limitations for

actions brought pursuant to § 1983 is three years. See Tester v. Pallito, No. 2:19-CV-

146-CR-JMC, 2020 WL 2813607, at *3 (D. Vt. Mar. 9, 2020), report and

recommendation adopted, No. 2:19-CV-146, 2020 WL 2793164 (D. Vt. May 29, 2020);

Owens v. Okure, 488 U.S. 235, 249-51 (1989) (holding that the most appropriate statut

of limitations in a § 1983 action is found in the “general or residual [state] statute [of

limitations] for personal injury actions”); Wallace v. Kato, 549 U.S. 384, 387 (2007).

“While state law supplies the statute of limitations for claims under § 1983, federal law

determines when a federal claim accrues. The claim accrues when the plaintiff Knows o

has reason to know of the harm.” Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001)

| (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.1994)). On rare occasions, the

principle of equitable tolling may prolong the allowable time for filing a complaint under

1983. See Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (citing Doe v.

Menefee, 391 F.3d 147, 159 (2d Cir. 2004)). To obtain the benefit of equitable tolling, a

plaintiff must demonstrate that “extraordinary circumstances prevented [him] from timely

performing a required act” and that he “acted with reasonable diligence throughout the

23

period he [sought] to toll.” Id. Alternatively, the statute of limitations may be tolled if “the

person entitled to commence an action is under disability because of infancy or insanity

at the time the cause of action accrues.” N.Y. C.P.L.R. § 208.

g. Eviction

i. Wrongful Eviction

Plaintiff makes references to a wrongful eviction and an unlawful warrant in

December 2013. Dkt. No. 1-2 at 13, 18, 20 (“wrongfull [sic] arrest warants [sic].”). As

indicated, there is not any factual context for these statements. Although it is not clear

whether the “warrant” to which he refers is a warrant of eviction or an arrest warrant,

contextual clues in the complaint appear to suggest that plaintiff is referring to an

Unlawful warrant of eviction, rather than a criminal arrest warrant. It is not clear whether

plaintiff is contending he was evicted from a home he owned, home he rented, or

whether he was evicted from public housing. If he were evicted from public housing, he

may be “entitled to certain due process of law before he can be deprived of continued

tenancy.” Oliver v. City of New York, No. 11-CV-1075 (ARR), 2011 WL 157844, at *3

(citing Escalera v. New York City Housing Authority, 425 F.2d 853, 861 (2d Cir.1970)

| (“The government cannot deprive a private citizen of his continued tenancy, without

affording him adequate procedural safeguards even if public housing could be deemed

to be a privilege.”); Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (procedural due

process protects property rights created by state law).

It cannot be determined from the complaint whether plaintiff is attempting to

argue that the warrant of eviction was somehow defective or if he is arguing that the

24

execution of the eviction was somehow unlawful. It is further unclear whether the issue

of eviction was addressed as part of his bankruptcy proceedings and against whom he

is attempting to levy any potential wrongful eviction claim. Moreover, it is not exactly

clear when the eviction occurred such that the Court may consider whether it is timely

pursuant to the statute of limitations. As the Court does not have sufficient factual

information or contextual support to properly assess whether plaintiff is claiming that an

eviction violated his constitutional rights, it is recommended that any wrongful eviction

claim brought under Vermont law be dismissed without prejudice such that plaintiff has

an opportunity to amend to cure these defects.

ii. Property Damage/Loss

Plaintiff states that a house was “ransacked” and “everthing [sic] taken from thee

[sic] inside aswell [sic] as garage” by the Rutland Sherriffs Department and Vermont

State Police Department in connection with an eviction. Dkt. No. 1-2 at 13. Itis

arguable that plaintiff is seeking to raise a claim for excessive or unreasonable property

damage in violation of the Fourth Amendment. Plaintiff may also be suggesting that

some of his property was taken in association with the eviction. See id. at 13, 18-19.

The Supreme Court of the United States has held that the Fourth Amendment protects

possessory interests in property, even where there has not been a “search” within the

meaning of the Fourth Amendment. See Soldal v. Cook Cnty.., IIL, 506 U.S. 56 (1992).

However, such property damage or loss must be excessive and/or unreasonable to rise

to the level of a constitutional claim. Courts have generally held that any property

destruction that is not reasonably necessary for the performance of a law enforcement

25

officer's duties constitutes an unreasonable seizure under the Fourth Amendment. See,

e.g., 98 A.L.R. 5thh 305, Destruction of Property as Violation of Fourth Amendment

(2002).

As a threshold issue, any Fourth Amendment claim plaintiff may have in

connection with a 2013 eviction is likely barred by the statute of this limitation. If this

incident occurred in 2013, the statute of limitation would have expired three years later,

in 2016. See Tester, 2020 WL 2813607, at*3. Thus, plaintiff may only be able to

proceed on such a claim if he demonstrates that tolling applies. In addition to the

statute of limitations concern, this claim must fail as it currently stands because there

simply is not any factual support or context such that the Court would be able to assess

against which defendants the claims were made, the property plaintiff alleges to have

been damaged or destroyed by the Sheriff's Department in connection with the eviction

and why such damage is excessive or unnecessary. Similarly, to the extent plaintiff

claims the Sherriffs Department unnecessarily seized his property in connection with

the execution of an eviction warrant, plaintiff must provide sufficient detail in connection

with such a claim.

Finally, if plaintiff can overcome the defects noted above, plaintiff would only be

| able to proceed against a municipal defendant, such as the Sheriff's Office, under a

Monell claim. See Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658,

665-83, 691 (1978)Although plaintiff does not name the Sheriffs Office as a defendant

either in the caption of the complaint or in any of the lists of defendants within the

complaint, applying special solicitude, should plaintiff wish to proceed against the

Rutland County Sheriff's Office, because such an entity is a municipality, to proceed for

26

violation of any constitutional rights in association with an eviction, plaintiff would need

to plead that there existed a specific policy or custom that lead to the violation of his

constitutional rights. See Monell v, 436 U.S. at 665-83, 69; see also Rudavsky v. City o

S. Burlington, No. 2:18-CV-25, 2018 WL 4639096, at *2 (D. Vt. Sept. 27, 2018)

(“Plaintiffs who seek to impose liability on local governments under Section 1983 must

prove that the individuals who violated their federal rights took “action pursuant to

official municipal policy. Official municipal policy includes not only the decisions of a

government's lawmakers, but also the acts of its policymaking officials, and practices so

persistent and widespread as to practically have the force of law... . These are

action[s] for which the municipality is actually responsible.”) (internal citations and

quotation marks omitted).

Accordingly, in light of special solicitude, it is recommended that any potential

Fourth Amendment claim for excessive property damage or destruction be dismissed

without prejudice and with opportunity to amend to permit plaintiff a chance to

demonstrate (1) why such a claim is not barred by the three-year statute of limitations

for § 1983 claims, and (2) provide sufficient factual support, (3) identify the specific

defendants against whom he wishes to bring the claim, and (4) set forth whether he

| believes defendants were acting pursuant to an official municipal policy and identify

such policy.

As this Court must provide special solicitude to pro se plaintiffs, Triestman, 470

F.3d at 475, and in light of the directive that caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and

the parties have had an opportunity to address the sufficiency of plaintiff's allegations,

27

Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), it is recommended that plaintiff

be provided one opportunity to amend his complaint.

h. Criminal Claims

Plaintiff's complaint makes unexplained references to racketeering, corruption,

o conspiracy, human trafficking,2° money laundering, forgery, and houses ransacked,

broken into, stolen paper trail.” Dkt. No. 1-2 at 13, 18-19. To the extent plaintiff seeks to

proceed with criminal claims against any defendants, such claims must fail. Plaintiff

lacks standing to initiate a criminal proceeding against any party. See Linda R.S. v.

Richard D., 410 U.S. 614, 619 (1973) (‘{A] private citizen lacks a judicially cognizable

interest in the prosecution or nonprosecution of another.”). This Court “does not have

| the authority or jurisdiction to . . . seek the criminal prosecution of individuals at the

request of a plaintiff,” Walker, 2021 WL 3518439, or “impose civil penalties for alleged

criminal acts of which a defendant has not been convicted, commence a criminal

prosecution, compel a law enforcement agency to investigate suspected criminal

activity, nor compel a prosecutor to prosecute.” Eggsware v. Doe, 1:22-CV-54

(BKS/CFH), 2022 WL 827640, at *5 (N.D.N.Y. Feb. 7, 2022) report recommendation

adopted by Eqgsware v. Doe, 2022 WL 823646 (N.D.N.Y. Mar. 18, 2022). Thus, to the

extent plaintiff wishes to proceed on criminal claims, it is recommended that such claims

be dismissed with prejudice and without opportunity to amend for failure to state a claim

upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(i).

20 Plaintiff states “human traffick[,]’ but the Court believes that plaintiff means human trafficking. Dkt.

No. 1-2 at 19.

28

i. Breach of Contract

Plaintiff also includes in his complaint the phrases “contempt of court” and

“breech [sic] of contract” but fails to explain (1) how “contempt of court” — which only a

judge can impose — applies, who he seeks to hold in contempt of court, and why; and

(2) the defendants involved in the alleged breach of contract, the terms of the alleged

| contract, and how and when defendants allegedly breached the alleged contract. As

plaintiff has provided no factual or contextual support for his breach of contract claim, it

must be dismissed with prejudice. Further, plaintiff must also demonstrate how a

breach of contract claim arises from the same facts and circumstances such that it

should be considered as part of the same lawsuit. See Fep. R. Civ. P. 20.

j. Official Capacity Claims

Plaintiff does not specify whether he intends to bring his claims against Judge

Colleen Brown, United States Trustee, and Vermont Attorney General in their personal

capacities or official capacities. Section 1983 does not authorize suits against state

Officials in their official capacities. he Eleventh Amendment provides that “[t]he Judicial

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

| Commenced or prosecuted against one of the United States by Citizens of another

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

Regardless of the nature of the relief sought, in the absence of the State's consent or

waiver of immunity, a suit against the State or one of its agencies or departments is

proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 100 (1984). “New York State has not consented to suit in federal court.”

29

Abrahams v. Appellate Div. of Supreme Court, 473 F.Supp.2d 550, 556 (S.D.N.Y. 2007)

(citing Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d. Cir.

1977). Section 1983 claims do not abrogate the Eleventh Amendment immunity of the

states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979). “[C]laims against a

government employee in his official capacity are treated as claims against the

° municipality,” and, thus, cannot stand under the Eleventh Amendment. Hines v. City of

Albany, 542 F.Supp. 2d 218 (N.D.N.Y.2008). Accordingly, it is recommended that, to

the extent it can be interpreted that any claims are sought for monetary damages

against the individual defendants in their official capacities, such claims be dismissed

with prejudice, and that any future claims may be brought against such defendants only

in their personal capacities.

I

k. Opportunity to Amend

Plaintiff is advised that, should the District Judge permit him to file an amended

complaint, the amended complaint must set forth a short and plain statement of the

claim and the facts he relies on in support of his claims. He must specify how each

individual named as a defendant in that pleading engaged in acts of misconduct or

| wrongdoing which violated laws or constitutional rights. An amended complaint may

only replead claims that were dismissed by this Court without prejudice. Any amended

complaint will replace and supersede the complaint in its entirety and, thus, must be a

complete pleading containing all of the facts, allegations, parties, and legal claims that

plaintiff wishes to include, except for any that have been dismissed by this Court with

prejudice. See Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) (“It is well

30

established that an amended complaint ordinarily supersedes the original and renders it

of no legal effect.”).

Ill. Conclusion

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

o ORDERED, that plaintiff's application for leave to proceed in forma pauperis, Dkt.

No. 1-1 (5:22-CV-161), is GRANTED for purposes of filing; and it is

(1) RECOMMENDED, that plaintiff's complaint, Dkt. No. 1-2 (5:22-CV-161), be

DISMISSED as follows:

(a) plaintiffs claims, insofar as they attempt to proceed on any criminal

claims be DISMISSED WITH PREJUDICE; and it is

(b) any potential section 1983 claims against defendants Judge Colleen

Brown, United States Trustee, and Vermont Attorney General in their

official capacities which seek monetary damages be DISMISSED WITH

PREJUDICE;

(c) plaintiffs “contempt of court” claims be DISMISSED WITH

PREJUDICE;

(d) plaintiff's claim for legal malpractice against Judge Collen Brown be

DISMISSED WITH PREJUDICE;

(e) plaintiff's attempt to appeal or otherwise seek review of the outcome of

his 2009 bankruptcy proceeding be DISMISSED WITHOUT PREJUDICE

and WITHOUT OPPORTUNITY TO AMEND;

31

(f) that the remainder of plaintiff's complaint be DISMISSED WITHOUT

PREJUDICE and WITH OPPORTUNITY TO AMEND; and it is further

(4) RECOMMENDED, that if the District Judge adopt this Report-

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

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

| if plaintiff does not file an amended complaint within that time frame, the case be closed

without further order of the Court; and it is further

(5) RECOMMENDED, that: (a) this matter (5:22-CV-161 “Lamothe |”) be

CONSOLIDATED with 5:22-CV-162 (“Lamothe II”), 5:22-CV-163 (“Lamothe Ill”), and

5:22-CV-164 (“Lamothe IV”), with the lead case being 5:22-CV-161, and the member

cases being 22-CV-162, 5:22-CV-163, and 5:22-CV-164, and, (b) if consolidation is

granted, that this Report-Recommendation & Order be docketed and served in all

cases, with future filings to be docketed in only the lead case; and it is

ORDERED, that the Clerk of the Court serve this Report-Recommendation &

Order on plaintiff in accordance with Local Rules.

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

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

| the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

(14) DAYS WILL PRECLUDE APPELLATE REVIEW. See 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).?'

21 If 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. See FED. R. Civ. P. 6(d). If the last day of that prescribed

32

Christian F. Hummel

US; Magistrate Judge Dated: January 19, 2023

Albany, New York

ry

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. See id. § 6(a)(1)(C).

33