# Cole v. Smrtic

> District Court, N.D. New York · November 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10749270

## Case

- **Court:** District Court, N.D. New York
- **Decided:** November 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MATTHEW H. COLE,
Plaintiff,
V.
No. 1:24-CV-00847
5 HONORABLE MICHAEL W. SMRTIC, et al. (MAD/CFH)

Defendants.

APPEARANCES:
MATTHEW H. COLE
271 Market Street
Amsterdam, New York 12010
Plaintiff pro se
CHRISTIAN F. HUMMEL
U.S. Magistrate Judge
REPORT-RECOMMENDATION & ORDER
Il. In Forma Pauperis
Plaintiff pro se Matthew H. Cole (“plaintiff’) commenced this action (No. 1:24-CV-
00623) on May 6, 2024, by filing a complaint. See Dkt. No. 1 (“Compl.”). On
September 26, 2024, plaintiff submitted what the Court construes to be a supplement to
1
the complaint.' See Dkt. No. 7. In lieu of paying this Court’s filing fees, he submitted an
application for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2. The
undersigned has reviewed plaintiff's IFP application and determines that he financially

1 The submission includes a letter addressed to District Judge D’Agostino, titled, “Requirements for
Cases Removed From State Court,” Dkt. No. 7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with the caption of Cole v. County of Montgomery, dated
December 7, 2022. See Dkt. No. 7. The undersigned has reviewed this submission in connection with
the initial review of plaintiffs complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d Cir. 2004).

qualifies to proceed IFP.*. Thus, the Court proceeds to its review of the complaint
pursuant to 28 U.S.C. § 1915. Plaintiff has also submitted for the Court’s review a Pro
Se Application for Permission to File Electronically and a Motion to Appoint Counsel.
See Dkt. Nos. 4, 5.
ll. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs that, when a 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). Thus, it is a court's
m| responsibility to determine that a plaintiff may properly maintain his complaint before
permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks omitted); see also Hernandez v. Coughlin, 18 F.3d 133, 136
m| (2d Cir. 1994). As the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro
se litigant’s submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our cases
have also indicated that we cannot read intopro se
submissions claims that are not “consistent” with the pro
? Plaintiff is advised that, although he has been granted IFP status, he is still required to pay all fees and
costs he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness
fees.

se litigant’s allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that pro
se status “does not exempt a party from compliance with
relevant rules of procedural and substantive law[.]”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citations and
footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil
Procedure [(‘Fed. R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019
WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d
Cir. 1994)). Pleading guidelines are provided in the Federal Rules of Civil Procedure.
Specifically, Rule 8 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 “[nJo technical form is required,” the Federal Rules make
clear that each allegation contained in the pleading “must be simple, concise, and
m| direct.” Id. at 8(d). “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). 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).
Further, Fed. R. Civ. P. 10 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). A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of a
defendant’s duty to shape a comprehensive 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).
This Court also has an overarching obligation to determine that a claim is not
legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000).
“Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal

theory [such as] when either the claim lacks an arguable basis in law, or a dispositive
defense clearly exists on the face of the complaint.” Aguilar v. United States, Nos. 99-
MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D.Conn. Nov. 8, 1999)? (quoting
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998)); see also
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
o theory ... or factual contentions lack an arguable basis.”).

B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this action pursuant to
“Title U.S.C. 18 Section 241, Conspiracy Against Rights & Title U.S.C. 18 Section 242
Deprivation of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil cover sheet

| further provides that his cause of action involves, “Violation of Due process, Speedy
Trial Rights, Ineffective Assistance of Counsel. | feel | am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that he seeks to bring this
case pursuant to 42 U.S.C. § 1983. See Compl. at 3. In response to the question in the
form complaint asking in “what federal constitutional or statutory right(s) do you claim
is/are being violated by state or local officials,” plaintiff responds, “Due Process, 30.30
Speedy Trial Violation, Ineffective Assistance of counsel.”* Id. In response to a
question asking him to explain “how each defendant acted under color of state or local

3 Any unpublished cases cited within this Report-Recommendation & Order have been provided to
PAlthough plaintiff generally references ineffective assistance of counsel, Compl. at 4, he does not name
any attorney who may have represented him. Any claims against the prosecutor would not be considered
ineffective assistance of counsel because Mr. Maxwell, as the prosecutor, was not plaintiffs attorney.

law,” plaintiff states “Each judge deliberately denied me due process, and refused to
look into the paperwork to see that i was improperly denied my speedy trial rights. It
was a tean [sic] effort. The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned actions were done and upheld
even after | showed federal law with supportive case law as a pro se litigant.” Id.
Plaintiff provides that his “case is still on appeakl [sic] in Appellate Court Third
Department. | feel they are guilty, or part of what | call a scandal. | went to them from
the very start with a complaint to the grievance committee, where they denied any
wrongdoing. It must be ok to violate Constitutional rights there. This is from March
2019 to present” Id.
In response to a question that asks plaintiff to state the facts underlying his
m| Claims, plaintiff states, “Please see attached Article 78 that is attached. It was
dismissed being in the wrong court, but is on point.” Id. at 4. Plaintiff did not provide
the Court with any such attachment and has not submitted any Article 78 materials.
See Compl., Dkt. No. 7.
In response to the form complaint’s question asking about any injuries suffered
as a result of the conduct he complains of, plaintiff states, “Sever [sic] depression over
| 20 years, irreperable [sic] harm, defamation of charcter [sic] by arguments not legally
allowed to give. Loss of income, inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial traumam [sic] due to my legal
battles.” Id. Indicating the relief sought, plaintiff states
Petitioner seeks reinstatement of driving priveldges [sic], and 10 million
dollars for damages caused by conflict of interest, deliberate violation of
Due Process, Speedy Trial rights, Ineffective assistance of counsel,
malice, Brady Violation, Petitioner claims deliberate misconduct and

malice in Montgomery County Court, the Saratoga Disrict Attorney's
Office, and the Supreme Court Appellate Division Third department. **
This is subject to change if an attorney agrees to represent.
Compl. at 5. Although he typed his name, plaintiff does not sign the complaint where a
signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this action to district court
° asserting jurisdiction pursuant to 42 U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff
states that he removed this case from Montgomery County Supreme Court. See id. He
states that he seeks or sought the removal because he was told he was “not guarantee
counsel” at the state, but that “[iJn Federal Court, there is that option, pending
qualification, and | am told, if a lawyer agrees to take it, then | really have something. |
am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and The County Court are
a matter already mentioned in the appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get
my conviction, | allege judicial and prosecutorial misconduct, and ineffective assistance
of counsel x 4. That is why | am pro se. | had to protect myself when appointed
counsel did not. It also went through a couple judges which is why they are mentioned
in the preliminary complaint/paperwork, and why | mention bias.” Id. Plaintiff states he
“prove each thing | saw not just with my words, but with transcripts® from the
County Court, and the Adult Drug Court.” Id. Plaintiff refers to being drug free for four
and a half years and having academic success in college. Id. at 3. He states that he
wishes this Court to hear his case because he believes he will not “see bias” in federal
court “like | saw in others.” Id. Plaintiff states that he “also put in a Notice of Removal

5 Plaintiff did not provide any transcripts.

in the Federal Court for those criminal charges that led to the Complaint. | do not trust
the assigned appellate attorney. That case too has Constitutional violations. That case
number is 1:24-CR-301 (AMN).” Id.
B. Discussion®
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the requirements of Rule
8. See FED. R. Civ. P. 8(a)(2). He does not provide a short and plain statement of the
claim demonstrating why he is entitled to relief. Although he makes general references
to both an Article 78 proceeding and a criminal proceeding and unexplained references
to “Due Process, 30.30 Speedy Trial Violation, Ineffective of Counsel,” he does not
provide factual support or context. Thus, his complaint does not provide “fair notice” to
m| defendants of the claims against them. See FED. R. Civ. P. 8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further lead the
undersigned to recommend dismissal. First, in referencing to “Due Process, 30.30
Speedy Trial Violation, Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek some kind of review of a criminal
| proceeding or conviction. See Compl. at 3. Plaintiff also accuses all named judges of
denying him due process and contends that an unnamed “ADA/Special Prosecutor
withheld potential exculpatory material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4. Such claims would be
barred by Heck v. Humphrey.

8 As a courtesy, the Court has provided plaintiff with copies of any unpublished cases cited within this
Report-Recommendation & Order.

As this Court, citing the District of Connecticut, has set forth:
In Heck, the Supreme Court held that in order for a plaintiff “to recover
damages for allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court's issuance of
a writ of habeas corpus.” Id. at 486-87. The court further held that “[a]
o claim for damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable under § 1983.” Id. at
487 (emphasis in original).
[
Thus, under Heck and its progeny, if a conviction has not been invalidated
previously, a Ҥ 1983 action is barred . . . no matter the target of the
prisoner's suit . . . if success in that action would necessarily demonstrate
the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005) (emphasis in original).
m| Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024 WL 2747619, at *3 (N.D.N.Y. May
29, 2024), report-recommendation adopted sub nom. Ali v. Dow, No. 8:24-CV-128,
2024 WL 3460745 (N.D.N.Y. July 18, 2024) (quoting Zografidis v. Richards, No. 3:22-
CV-00631 (AVC), 2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), affid, No. 22-3197, 2023 WL 7538211 (2d Cir.
Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s), conviction, or
sentence has been “reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into question
by a federal court's issuance of a writ of habeas corpus.” Zografidis, 2022 WL
21756775, at *7. Although plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal proceedings, conviction,

and/or sentence. The claims plaintiff seeks to pursue relate to allegations that he was
denied due process, denied speedy trial rights, and experienced ineffective assistance
of counsel. Accordingly, plaintiff's claims are barred by Heck unless and until he can
demonstrate favorable termination of his criminal conviction.’

a tat
3. Immunities
Plaintiff names as defendants several defendants who are immune from suit.
Insofar as plaintiff names Hon. Michael W. Smrtic, Interim Montgomery County Judge
and Tatiana N. Coffinger, “County/Family/Surrogate’s Court Judge”® such claims would
be barred by judicial immunity.
“With minor exceptions, judges are entitled to absolute immunity for actions
relating to the exercise of their judicial functions.” Zavalidroga v. Girouard, No. 6:17-
CV-682 (BKS/ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017) (citing Mireles v.
Waco, 502 U.S. 9, 9-10 (1991) (per curiam)). “Judicial immunity has been created for
the public interest in having judges who are ‘at liberty to exercise their functions with

? The undersigned recognizes that claims that are determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has recommended dismissal with prejudice because
plaintiff has only named defendants who are immune from relief. Accordingly, the undersigned is
recommending dismissal of the claims based on these immunities, rather than a Heck dismissal. The
| undersigned has included the Heck review for sake of completeness.
8 Although plaintiff provides no facts regarding any family court proceedings, that he named a family court
judge and makes general reference to that he seeks review over actions taken by a family court judge.
Even if plaintiff were to amend his complaint to provide facts about any possible family court proceedings
and details about any alleged violations of his rights that he believes he faced in that Court, if plaintiff
seeks this Court’s review of an order of the family court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court’s review or intervention of a currently pending/ongoing Family
Court proceeding, such review would be barred by Younger. See Porter v. Nasci, No. 5:24-CV-0033
(GTS/TWD), 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), report and
recommendation adopted, 2024 WL 3158645 (N.D.N.Y. June 25, 2024) (“Under the Rooker-Feldman
doctrine, a federal district court lacks authority to review a final state court order or judgment where a
litigant seeks relief that invites the federal district court to reject or overturn such a final state court order
or judgment.”); see also Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002)
(“[F]ederal courts [must] abstain from taking jurisdiction over federal constitutional claims that involve or
call into question ongoing state proceedings.”).
10

independence and without fear of consequences.” Id. (quoting Huminski v. Corsones,
396 F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even when the judge is
accused of acting maliciously or corruptly.” Id. (citation omitted); see Positano v. New
York, No. 12-CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y. Mar. 7, 2013)
(explaining that the plaintiff may not bring action against a judge for actions taken in his
o judicial capacity, even when the actions violated the ADA).
“Judicial immunity is immunity from suit, not just immunity from the assessment
of damages.” Zavalidroga, 2017 WL 8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)). “The only two circumstances in which judicial immunity does not
apply is when he or she takes action ‘outside’ his or her judicial capacity and when the
judge takes action that, although judicial in nature, is taken ‘in absence of jurisdiction.”
m| ld. (quoting Mireles, 502 U.S. at 11-12). “In determining whether or not a judge acted in
the clear absence of all jurisdiction, the judge’s jurisdiction is ‘to be construed broadly,
and the asserted immunity will only be overcome when the judge clearly lacks
jurisdiction over the subject matter.” Pacherille v. Burns, 30 F. Supp. 3d 159, 163
(N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just. Ct., 404 F. App’x 537, 539 (2d
Cir. 2011) (summary order)). “Whether a judge acted in a judicial capacity depends on
| the nature of the act [complained of] itself, i.e., whether it is a function normally
performed by a judge, and [on] the expectations of the parties, i.e., whether they dealt
with the judge in his judicial capacity.” Ceparano, 404 F. App’x at 539 (internal
quotation marks and citation omitted). “Further, if the judge is performing in his judicial
capacity,” he “will not be deprived of immunity because the action he took was in error,
was done maliciously, or was in excess of his authority; rather, he will be subject to

11

liability only when he has acted in the clear absence of all jurisdiction.” Ceparano, 404
F. App’x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). “Judges are
not, however, absolutely ‘immune from liability for nonjudicial actions, i.e., actions not
taken in the judge’s judicial capacity.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009)
(quoting Mireles, 502 U.S. at 11).
° Thus, as plaintiff names the judicial defendants in relation to actions or omissions
that they took in their roles as judges, their actions are protected by absolute judicial
immunity. To the extent plaintiff names Hon. Felix Catena, “Retired Administrative Law
Judge,” Judge Catena is also protected by absolute judicial immunity as a judge's
retirement, “does not impact [his or] her immunity for acts taken in [his or] her official
capacity before her retirement.” McCray v. Lewis, No. 16-CV-3855 (WFK/VMS), 2016
m| WL 4579081, at *2 (E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to sue
the judges their official capacities, the suit is barred by the Eleventh Amendment. See
Pacherille v. Burns, 30 F. Supp. 3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh
Amendment shields judges from suit to the extent that they are sued in their official
capacities.”).
In addition, plaintiff also references, exclusively in his “relief section of the form
complaint, “the Supreme Court Appellate Division, Third Department” when stating that
he experienced “deliberate misconduct and malice.” Compl. at 7. He does not name
this Court as a defendant anywhere in the complaint. However, even if plaintiff were to
have named the Appellate Division, Third Department as a defendant, such defendant
would also need to be dismissed based on Eleventh Amendment immunity as the
Appellate Division “is merely an agency or arm of New York State.” Benyi v. New York,

12

No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at *5 (N.D.N.Y. Mar. 23, 2021), report
and recommendation adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y. Apr. 13,
2021) (citation omitted). Accordingly, to the extent a liberal reading of the complaint
may suggest that plaintiff seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See Compl.
° Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V. Maxwell, Esq.,
Assistant District Attorney, in addition to the Heck issues noted above, he would be
protected by absolute prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability for those
prosecutorial activities ‘intimately associated with the judicial phase of the
criminal process.” Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987)
(citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Hill v. City of New York, 45
F.3d 653, 661 (2d Cir. 1995) (internal quotations and citation omitted).
Absolute immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process, “involves the
exercise of discretion.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011)
(citing Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such as “deciding
whether to bring charges and presenting a case to a grand jury or a court,
along with the tasks generally considered adjunct to those functions, such
as witness preparation, witness selection, and issuing subpoenas.” Simon
v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (citing Imbler, 424
U.S. at 431 n.33); see also Flagler, 663 F.3d at 547 (explaining, “the
Supreme Court has found prosecutors absolutely immune from suit for
alleged misconduct during a probable cause hearing, in initiating a
prosecution, and in presenting the State's case . . . [but] withheld absolute
immunity for conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining witness.”). “[O]nce
a court determines that challenged conduct involves a function covered by
absolute immunity, the actor is shielded from liability for damages
regardless of the wrongfulness of his motive or the degree of injury
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004)
(citing Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)).

13

Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024 WL 3649849, at *5 (N.D.N.Y.
June 11, 2024), report and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld potentially exculpatory
material’ that was used against him. Compl. at 4. Beyond the Heck barriers already
° discussed, even if plaintiff could amend to provide greater detail, absolute immunity
would extent to even this alleged misconduct as such allegations clearly fall within the
scope of prosecutorial immunity. Accordingly, it is recommended that any claims
against ADA Samuel V. Maxwell be dismissed for absolute prosecutorial immunity.
“Furthermore, because the District Attorney's prosecutorial immunity is substantive and
not something that can be corrected by a better pleading, | recommend that the
m| dismissal be with prejudice.” Phillips v. New York, No. 5:13-CV-927, 2013 WL 5703629,
at *5 (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 223 (2d Cir.
2000)).°

Ill. Conclusion
ORDERED, that plaintiff's in forma pauperis application (dkt. no. 2) be
| GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims against Honorable Michael
W. Smrtic; Tatiana N. Coffinger, County/Family/Surrogate’s Court Judge; and Felix

° Plaintiff appears to characterize his submissions as a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery County Court to this Court. See Dkt. No. 7 (citing 28
U.S.C. § 1441). However, in addition to the infirmities mentioned above, plaintiff has not demonstrated
that any proceeding related to this complaint has been properly removed to, or is subject to removal to,
this Court. See, e.g., 28 U.S.C. § 1446. Indeed, plaintiff's submissions appear to indicate that plaintiff is
the plaintiff in the County Court action. See id. § 1446(a).
14

Catena, Retired Administrative Law Judge (Dkt. Nos. 1, 7) be DISMISSED WITH
PREJUDICE as follows: (1) claims brought against them in their personal/individual
capacities for judicial immunity, and (2) claims brought against them in their official
capacities for Eleventh Amendment immunity; and it is further
RECOMMENDED, that plaintiff's section 1983 claims against Assistant District
o Attorney Samuel V. Maxwell (Dkt. Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading of the complaint may
suggest that plaintiff seeks to name the Appellate Division, Third Department, as a
defendant (Dkt. Nos. 1, 7), such claims be DISMISSED WITH PREJUDICE as barred
by Eleventh Amendment immunity, and it is
RECOMMENDED, that plaintiff's pro se motion for permission to file
electronically (dkt. no. 4) and motion to appoint counsel” (dkt. no. 5) be DISMISSED
AS MOOT based on the above recommendations, and it is
ORDERED, that the Clerk serve this Report-Recommendation & Order on
plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), 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

10 The undersigned also notes that plaintiff did not contend that he made any efforts to obtain counsel on
his own, show proof of any attorneys he contacted. See Terminate Control Corp v. Horowitz, 28 F.3d
1335 (2d Cir. 1994). See Dkt. No. 5.
15

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);
Feb. R. Civ. P. 6(a), 72.1
Dated: November 21, 2024 CUriolse— erm)
Albany, New York Christian F. Hummel
USS. Magistrate Judge

ry

11 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail,
three (3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen
(17) days from the date the Report-Recommendation and 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. Id. § 6(a)(1)(c).
16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10749270. Public record. Not legal advice.