Lettieri v. New York State Police

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

DAVID C. LETTIERI,

Plaintiff,

3:23-CV-1547

v. (BKS/ML)

NEW YORK STATE POLICE,

Defendant.

_____________________________________________

APPEARANCES: OF COUNSEL:

DAVID C. LETTIERI

Plaintiff, Pro Se

Devens Federal Medical Center

Post Office Box 879

Ayer, Massachusetts 01432

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

I. BACKGROUND

A. Procedural History

Plaintiff David C. Lettieri (“Plaintiff”) commenced this civil rights action pro se in the

district court for the Western District of New York on June 9, 2023, on a form complaint

alleging that his rights were violated by Defendant New York State Police (“Defendant”). (Dkt.

No. 1.) Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma

pauperis (“IFP”). (Dkt. No. 2.)

On June 27, 2023, District Judge Lawrence Vilardo administratively terminated the

action and directed Plaintiff that, if he wished to reopen the action, he must notify the court in

writing within 30 days. (Dkt. No. 3.) Judge Vilardo noted that the writing must include either

(1) a properly supported motion to proceed IFP with the required certification of Plaintiff’s

inmate trust fund account and authorization, or (2) the filing fee. (Id.)

On August 21, 2023, Plaintiff filed an amended motion for leave to proceed IFP. (Dkt.

No. 7.) On December 11, 2023, Judge Vilardo re-opened the matter and ordered that it be

transferred to the Northern District of New York. (Dkt. No. 8.)

On January 29, 2024, the undersigned denied Plaintiff’s amended motion for leave to

proceed IFP. (Dkt. No. 10.) On March 1, 2024, Plaintiff filed a notice of interlocutory appeal

seeking review of the undersigned’s denial of his IFP motion. (Dkt. No. 12.) On July 23, 2024,

the Second Circuit dismissed Plaintiff’s appeal. (Dkt. No. 17.)

On January 6, 2025, Chief United States District Judge Brenda K. Sannes directed

administrative closure of this action for failure to comply with the filing fee requirement. (Dkt.

No. 20.)

On January 21, 2025, Plaintiff filed a second amended motion for leave to proceed IFP

together with an inmate authorization form. (Dkt. Nos. 21, 22.) On January 21, 2025, Chief

Judge Sannes directed the Clerk of the Court to restore the action to the Court’s active docket.

(Dkt. No. 23.)

On January 27, 2025, the undersigned denied Plaintiff’s second amended motion for

leave to proceed IFP as incomplete. (Dkt. No. 25.) On April 1, 2025, Chief Judge Sannes

directed that the action be administratively closed for failure to comply with the filing fee

requirement. (Dkt. No. 28.)

On April 21, 2025, Plaintiff filed a third amended motion to proceed IFP. (Dkt. No. 31.)

On April 22, 2025, Chief Judge Sannes directed the Clerk of the Court to restore the action to the

Court’s active docket. (Dkt. No. 32.)

B. Complaint

Construed as liberally1 as possible, Plaintiff’s Complaint appears to allege that his civil

rights were violated by Defendant. (See generally Dkt. No 1.) The Complaint is far from clear

but appears to allege that on August 11, 2020, Plaintiff brought his girlfriend’s dog to the Vestal

Veterinary Hospital where the dog was admitted for care. (Dkt. No. 1 at 8-9.)2 The Complaint

alleges that Plaintiff paid $1,000 as a down payment for medical care of the dog and, on August

18, 2020, Plaintiff paid the remaining balance that was owed for treatment of the dog. (Id.) The

Complaint alleges that shortly after paying the balance, a New York State Trooper “came” and

threatened to arrest Plaintiff if Plaintiff did not surrender the dog. (Id.) The Complaint alleges

that the State Trooper “made it clear that he didn’t care if the dog was owned by someone else.”

(Id.) The Complaint alleges that Plaintiff “never got the down payment back” and the State

Troopers informed Plaintiff that return of the down payment was “not their problem” and

Plaintiff “would have to file a lawsuit for such matters.” (Id. at 8-10.)

The Complaint alleges that on April 10, 2023, Plaintiff sent a Notice of Claim in

compliance with New York State General Municipal Law § 50-e. (Dkt. No. 1 at 8-9.) The

Complaint alleges that on May 19, 2023, Plaintiff received the Notice of Claim back through the

1 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

2 Based on the undersigned’s review of the Complaint, page 9 appears to be a duplicate of

page 8.

mail with a notation that the building he sent the Notice of Claim to, is vacant. (Id.) The

Complaint alleges that Plaintiff fulfilled the requirements of New York State General Municipal

Law § 50-e and thus, “cannot be penalized for such matters.” (Id.)

Based on these factual allegations, the Complaint appears to assert the following three

claims: (1) a claim that Plaintiff’s due process rights were violated pursuant to the Fourteenth

Amendment and 42 U.S.C. § 1983; (2) a claim of excessive force pursuant to the Fourth

Amendment and 42 U.S.C. § 1983; and (3) a claim of unlawful search and seizure pursuant to

the Fourth Amendment and 42 U.S.C. § 1983. (Dkt. No. 1 at 5.) As relief, Plaintiff seeks the

return of the dog, the $1,000.00 deposit that he made to Vestal Veterinary Hospital, and

$50,000,000.00 in damages. (Id. at 6.)

Plaintiff seeks leave to proceed IFP. (Dkt. No. 31.)

II. PLAINTIFF’S THIRD AMENDED APPLICATION TO PROCEED IFP

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-

CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).3 “Although an indigent,

incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently

pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate

3 Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a

showing of “imminent danger of serious physical injury,” a prisoner has filed three or more

actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon

which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's

litigation history on the Federal Judiciary’s Public Access to Court Electronic Records

(“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review that

Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this

action was commenced.

accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New

York, 607 F.3d 18, 21 (2d Cir. 2010)).

Upon review, the Court finds that Plaintiff has submitted a completed IFP application

which has been certified by an appropriate official at his facility (Dkt. No. 31 at 2), and which

demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate

authorization required in the Northern District. (Dkt. No. 22.)

Accordingly, Plaintiff’s third amended application to proceed with this action IFP is

granted. (Dkt. No. 31.)

III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (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).

In determining whether an action is frivolous, the court must consider whether the

complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325

(1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well

as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge,

505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221

F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even

when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant,

Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016)

(Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories

of the plaintiff’s retaliation claim sua sponte because those theories were so lacking in arguable

merit as to be frivolous).

“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

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme 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 respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

IV. ANALYSIS

Plaintiff’s claims are barred by the Eleventh Amendment.

New York State is immune from suits pursuant to 42 U.S.C. § 1983 seeking either legal

or equitable relief, under the Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, 276

(1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984); see

Ognibene v. Niagara Cnty. Sheriff's Dep't, 03-CV-0678, 2003 WL 24243989, at *3 (W.D.N.Y.

Dec. 1, 2003) (“To the extent the plaintiff names various state courts as defendants and seeks

either legal or equitable relief against them under § 1983, they are immune from such suit under

the Eleventh Amendment.”). The Eleventh Amendment’s immunity extends to the New York

State Police as an agency of the State of New York. See, e.g., Riley v. Cuomo, 17-CV-1631,

2018 WL 1832929, *4 (E.D.N.Y. Apr. 16, 2018) (holding that the New York State Police, as a

division in the executive department of the State, is immune from claims under § 1983);

Finkelman v. New York State Police, 06-CV-8705, 2007 WL 4145456, *3 (S.D.N.Y. Nov. 15,

2007) (holding that the Eleventh Amendment barred the plaintiff's suit seeking monetary

damages under § 1983 against New York State Police).

As a result, I recommend that Plaintiff’s claims against Defendant be dismissed because

it is immune from suit.

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). An opportunity to amend is not required, however, where “the problem

with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).4

In deference to plaintiff's pro se status, I recommend that Plaintiff be granted thirty days

from the date the District Court files its order on this Report and Recommendation within which

to file an amended complaint—for initial review by the undersigned—naming a proper defendant

or defendants not subject to the Eleventh Amendment bar.5 The undersigned further

recommends that upon the expiration of the thirty days granted Plaintiff to file an amended

complaint, the action be dismissed against Defendant New York State Police for lack of subject

matter jurisdiction pursuant to 28 U.S.C. §§ 1915(e)(B)(iii), 1915A(b) and Rule 12(h)(3) of the

Federal Rules of Civil Procedure, whether or not Plaintiff has filed an amended complaint.

ORDERED that Plaintiff’s third amended application to proceed in forma pauperis (Dkt.

No. 31) is GRANTED; and it is further

ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that

Plaintiff has designated as his current location with a copy of Plaintiff’s inmate authorization

form (Dkt. No. 22) and notify that official that Plaintiff has filed this action and is required to

pay the Northern District of New York the entire statutory filing fee of $350.00 in installments,

4 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

5 A § 1983 claim for monetary damages properly brought against a state trooper in his or

her individual capacity is not barred by the Eleventh Amendment. See Estes-El v. Town of

Indian Lake, 954 F. Supp. 527, 537 (N.D.N.Y. Feb. 4, 1997) (Munson, J.). Individual capacity

suits seek to impose individual liability upon a government officer who has caused the

deprivation of a federal right while acting under color of state law. Hafer v. Melo, 502 U.S. 21,

25 (1991).

over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff’s inmate

authorization form (Dkt. No. 22) to the Financial Deputy of the Clerk’s office; and it is further

respectfully

RECOMMENDED that Plaintiff be granted thirty days from the date the District Court

files its order on this Report-Recommendation within which to file an amended complaint, for

initial review by this Court, naming a proper defendant or defendants not subject to the Eleventh

Amendment bar as defendant(s) in this action; and it is further respectfully

RECOMMENDED that upon the expiration of the thirty days granted Plaintiff to file an

amended complaint, the original complaint (Dkt. No. 1) be dismissed against Defendant New

York State Police under 28 U.S.C. §§ 1915(e)(B)(iii), 1915A(b) and Rule 12(h)(3) of the Federal

Rules of Civil Procedure for lack of subject matter jurisdiction, whether or not Plaintiff has filed

an amended complaint; and it is further

ORDERED that the Clerk of the Court shall file a copy of this order, report, and

recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.6

6 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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

DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: May _6 , 2025

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

7 If you are proceeding pro se and served with this report, recommendation, and order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date that 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. Fed. R. Civ. P. 6(a)(1)(C).

10

2010 WL 5185047 dated February 18, 2010 (Docket Item 9)).

Only the Westlaw citation is currently available.

United States District Court, On March 4, 2010, the sole remaining defendant—Dr.

S.D. New York. Bernstein—filed the current motion. Plaintiff failed to submit

a response. Accordingly, on August 20, 2010, I issued an

David J. CASH, Plaintiff, Order advising plaintiff that if he wished to oppose the

v. motion, he must submit his opposition by September 15, 2010

BERNSTEIN, MD, Defendant. and that after that date I would consider the motion fully

submitted and ripe for decision (Order dated August 20, 2010

No. 09 Civ.1922(BSJ)(HBP). (Docket Item 15)). The only submission plaintiff has made

| in response to my Order is a multi-part form issued by the

Oct. 26, 2010. New York State Department of Correctional Services entitled

“Disbursement or Refund Request.”2 By this form, plaintiff

appears to request that the New York State Department of

REPORT AND RECOMMENDATION1 Correctional Services pay the filing fee for this action. The

form is marked “Denied.”

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United III. Analysis

States District Judge, 28 U.S.C. § 1915 permits an indigent litigant to commence

an action in a federal court without prepayment of the filing

fee that would ordinarily be charged. Although an indigent,

I. Introduction incarcerated individual need not prepay the filing fee at the

By notice of motion dated March 4, 2010 (Docket Item 11), time at the time of filing, he must subsequently pay the fee,

defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke to the extent he is able to do so, through periodic withdrawals

plaintiff's in forma pauperis (“IFP”) status on the ground that from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.

plaintiff has previously had at least three Section 1983 actions City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent

dismissed as frivolous, malicious or failing to state a claim abuse of the judicial system by inmates, paragraph (g) of

upon which relief could be granted, and has not shown that he this provision denies incarcerated individuals the right to

is in imminent danger of serious physical injury. Defendant proceed without prepayment of the filing fee if they have

further seeks an order directing that the action be dismissed repeatedly filed meritless actions, unless such an individual

unless plaintiff pays the full filing fee within thirty (30) days. shows that he or she is in imminent danger of serious

For the reasons set forth below, I respectfully recommend that physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d

defendant's motion be granted. Cir.2004) (“[T]he purpose of the PLRA ... was plainly to

curtail what Congress perceived to be inmate abuses of the

judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d

II. Facts

Cir.1997). Specifically, paragraph (g) provides:

Plaintiff, a sentenced inmate in the custody of the New

York State Department of Correctional Services, commenced

this action on or about January 12, 2009 by submitting his

complaint to the Court's Pro Se office. Plaintiff alleges, in *2 In no event shall a prisoner bring

pertinent part, that he has “a non-healing ulcer that is gane a civil action or appeal a judgment

green [sic ]” and that defendant Bernstein “did not want in a civil action or proceeding under

to treat the ulcer right” (Complaint, dated March 3, 3009 this section if the prisoner has, on

(Docket Item 2) (“Compl.”), at 3). 3 or more prior occasions, while

incarcerated or detained in any facility,

The action was originally commenced against two defendants brought an action or appeal in a court

—Dr. Bernstein and Dr. Finkelstein. The action was dismissed of the United States that was dismissed

on the grounds that it is frivolous,

which relief may be granted, unless the or more actions that constituted “strikes” under

prisoner is under imminent danger of Section 1915(g) and had not shown an imminent

serious physical injury. threat of serious physical injury. 2008 WL 268215

at *1–*2.

• Finally, in Nelson v. Chang, No. 08–CV–1261

28 U.S.C. § 1915(g).

(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,

2009), the Honorable Kiyo A. Matsumoto, United

If an inmate plaintiff seeks to avoid prepayment of the filing

States District Judge, also found, based on the

fee by alleging imminent danger of serious physical injury,

cases discussed above, that plaintiff had exhausted

there must be a nexus between the serious physical injury

the three strikes permitted by Section 1915(g)

asserted and the claims alleged. Pettus v. Morgenthau, 554

and could not proceed IFP in the absence of a

F.3d 293, 298 (2d Cir.2009).

demonstration of an imminent threat of serious

physical injury. 2009 WL 367576 at *2–*3.

Section 1915(g) clearly prevents plaintiff from proceeding

*3 As defendant candidly admits, there is one case in which

in this action without prepayment of the filing fee.

plaintiff's leg infection was found to support a finding of an

The memorandum submitted by defendant establishes that

imminent threat of serious physical injury sufficient to come

plaintiff has had his IFP status revoked on at least four prior

within the exception to Section 1915(g). Nelson v. Scoggy,

occasions as a result of his repeatedly filing meritless actions.

No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2

• In 2005, plaintiff commenced an action in the United (N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment

States District Court for the Northern District of New was subsequently granted for defendants in that case, and

York seeking to have his infected leg amputated. the complaint was dismissed. Judge Mordue concluded that

Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 there was no genuine issue of fact that plaintiff had received

adequate medical care for his leg wound and that the failure

WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter,

of the leg to heal was the result of plaintiff's own acts of

the Honorable Norman A. Mordue, Chief United States

self-mutilation and interference with the treatment provided.

District Judge, accepted and adopted the Report and

Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009

Recommendation of the Honorable David E. Peebles,

United States Magistrate Judge, that plaintiff had

WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4

brought three or more prior actions that had been

dismissed for failure to state a claim and that plaintiff's In light of the foregoing, there can be no reasonable dispute

IFP status should, therefore, be revoked. 2007 WL that plaintiff has exceeded the three “strikes” allowed by

4333776 at *1–*2. Section 1915(g) and that he cannot, therefore, proceed here

without prepaying the filing fee unless he demonstrates

an imminent threat of serious physical injury. Plaintiff has

• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP), declined to attempt to make this showing in response to

2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff defendant's motion, and the only suggestion in the record

again filed an action concerning the medical care of serious physical injury is the bare statement in the

he was receiving for his left leg. The Honorable complaint that plaintiff “need[s] to go back to a wound speci

Thomas J. McAvoy, United States District Judge, [a]list before the gane green [sic ] kills [him]” (Compl. at

accepted the Report and Recommendation of Magistrate 5). “However, unsupported, vague, self-serving, conclusory

Judge Peebles, and revoked plaintiff's IFP status and speculation is not sufficient to show that Plaintiff is, in fact,

dismissed the action on the ground that plaintiff had in imminent danger of serious physical harm.” Merriweather

previously commenced at least three actions that had v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing

been dismissed on the merits. 2008 WL 3836387 at *1, Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and

*7. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);

see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)

• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)

(imminent danger exception to Section 1915(g) requires

(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),

“specific fact allegations of ongoing serious physical injury,

of imminent serious physical injury”). Given the plaintiff's objections. See also Fed.R.Civ.P. 6(a). Such objections (and

history, as set forth in the cases described above, I conclude responses thereto) shall be filed with the Clerk of the Court,

that this vague statement is insufficient to support a finding with courtesy copies delivered to the Chambers of the

that plaintiff is in imminent danger of serious physical Honorable Barbara S. Jones, United States District Judge,

injury.5 500 Pearl Street, Room 1920, and to the Chambers of the

undersigned, 500 Pearl Street, Room 750, New York, New

York 10007. Any requests for an extension of time for filing

IV. Conclusion objections must be directed to Judge Jones. FAILURE TO

Accordingly, for all the foregoing reasons, I find that plaintiff OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT

has had three or more prior actions dismissed as being IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE

frivolous, malicious or failing to state a claim and that APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155

plaintiff's in forma pauperis status should, therfore, be (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d

revoked. If your Honor accepts this recommendation, I further Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d

recommend that the action be dismissed unless plaintiff pays 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,

the filing fee in full within thirty (30) days of your Honor's 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–

final resolution of this motion. 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–

38 (2d Cir.1983).

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of All Citations

the Federal Rules of Civil Procedure, the parties shall have

Not Reported in F.Supp.2d, 2010 WL 5185047

Footnotes

1 At the time the action was originally filed, the Honorable Leonard B. Sand, United States District Judge,

granted plaintiff's application for in forma pauperis status based on plaintiff's ex parte submission (Docket Item

1). Although the present application seeking to revoke plaintiff's in forma pauperis status is non-dispositive,

I address it by way of a report and recommendation to eliminate any appearance of a conflict between the

decision of a district judge and that of a magistrate judge.

2 Plaintiff sent this form directly to my chambers, and it has not been docketed by the Clerk of the Court. The

form will be docketed at the time this Report and Recommendation is issued.

3 It appears that plaintiff uses the names David J. Cash and Dennis Nelson interchangeably. In his complaint

in this matter, plaintiff states that the Departmental Identification Number, or DIN, assigned to him by the

New York State Department of Correctional Services (“DOCS”) is 94–B–0694 (Compl. at 7). DOCS inmate

account records submitted by plaintiff in connection with his application for IFP status indicate that DIN 94–

B–0694 is assigned to Dennis Nelson. In addition, the DOCS form described in footnote two bears the docket

number of this action, but is signed in the name of Dennis Nelson and was sent in an envelope identifying

the sender as Dennis Nelson. A subsequent action has been filed in this Court in which the plaintiff identifies

himself as Dennis Nelson but lists his DIN as 94–B–0694, the same DIN used by plaintiff here. Finally, plaintiff

has submitted nothing to controvert the assertion in defendant's papers that David Cash and Dennis Nelson

are the same person. In light of all these facts, I conclude that David Cash and Dennis Nelson are both

names used by plaintiff.

plaintiff disclosed only the Scoggy action and expressly denied the existence of any other actions relating

to his imprisonment (Compl. at 6).

5 Plaintiff has sent me several letters describing his wound and its symptoms in detail, and I have no doubt

that the wound is serious. However, in granting summary judgment dismissing an action last year based on

the same allegations, Judge Mordue of the Northern District found that there was no genuine issue of fact

that plaintiff's own conduct was responsible for the ineffectiveness of the treatment he was provided:

Furthermore, to the extent that Nelson's medical treatment was delayed, much of the delay was due to

his own refusal to cooperate with medical staff and his self-mutilations. Nelson's actions to thwart the

medical treatment of his wound cannot be construed as interference or indifference by anyone else.... [T]he

medical treatment Nelson received complied with constitutional guarantees as it was appropriate, timely,

and delayed only by Nelson's own actions.

Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.

Given plaintiff's total failure to respond to the pending motion and his failure to even deny that he is actively

thwarting treatment of his wound, it would be sheer speculation for me to conclude that he is in imminent

danger of a serious injury as a result of defendant's conduct.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2016 WL 865296 of ethical violations against Defendant Bertram, she (a)

Only the Westlaw citation is currently available. “collaborated with and supported” the Town's Fire Chief

United States District Court, N.D. New York. to deny and/or threaten to deny fire protection to Plaintiff,

(b) “supported and encouraged” various Town employees

William PFLAUM, Individually and as a Citizen, to “illegal[ly] revo[ke] ... Plaintiff's permit to operate his

Resident and Taxpayer of Town of Stuyvesant, Plaintiff, business,” and (c) “supported and encouraged” the Town

v. Assessor's “campaign to intimidate Plaintiff by linking [his]

TOWN OF STUYVESANT, COLUMBIA CTY., political speech [with his] real estate assessment.” (Dkt. No.

1, ¶¶ 20-23, 116 [Pl.'s Compl.].)

N.Y.; and Valerie Bertram, Individually and as

Supervisor of Town of Stuyvesant, Defendants.

Second, Plaintiff alleges that, in retaliation for writing

1:11-CV-0335 (GTS/DJS) columns on his Internet blog regarding corruption among the

| Town's public officials, the Town filed false criminal charges

Signed 03/02/2016 against him. (Id., ¶ 116.)

Attorneys and Law Firms Third, and finally, Plaintiff alleges that, in retaliation for

criticizing Bertram, the Town Assessor, and the Town, the

WILLIAM PFLAUM, Plaintiff, Pro Se1, 3 Rybka Road, Box Town Assessor used his authority to raise taxes in order to

40, Stuyvesant Falls, NY 12174. intimidate Plaintiff into silence. (Id., ¶¶ 23, 39, 47, 116.)

BRYAN D. RICHMOND, ESQ., THOMAS J. MORTATI,

ESQ., BURKE, SCOLAMIERO, MORTATI & HURD, LLP, B. Defendants' Motion for Summary Judgment

Attorneys for Defendants, 9 Washington Square, Suite 201, *2 In their motion for summary judgment, Defendants

P.O. Box 15085, Albany, NY 12212-5085. request the dismissal of Plaintiff's Complaint in its entirety.

(Dkt. No. 59.) In support of their motion, Defendants make

the following four arguments. First, Defendants argue that

DECISION and ORDER there was no adverse action against Plaintiff in that there

was no actual chilling of Plaintiff's First Amendment speech

GLENN T. SUDDABY, Chief United States District Judge or any other damages. (Dkt. No. 61, at 3-8 [Defs.' Mem. of

Law].)

*1 Currently before the Court, in this civil rights action

filed by William Pflaum (“Plaintiff”) against the Town of Second, Defendants argue that, in any event, any such adverse

Stuyvesant (“Town”) and Valerie Bertram, Town Supervisor action was not motivated or substantially caused by Plaintiff's

(“Bertram”) (collectively, “Defendants”), is Defendants' First Amendment speech. (Id. at 5-6.)

motion for summary judgment pursuant to Fed. R. Civ. P. 56.

(Dkt. No. 59.) For the reasons set forth below, Defendants' Third, in the alternative, Defendants argue that Bertram was

motion is granted. not personally involved in any deprivation of fire protection

services to Plaintiff. (Id. at 5, 8-10.)

I. RELEVANT BACKGROUND

Fourth, and finally, Defendants argue that Bertram is entitled

A. Plaintiff's Complaint to qualified immunity. (Id.)

As a result of the Court's prior decisions (Dkt. Nos. 17,

26), Plaintiff's sole remaining claim in this action is his

C. Plaintiff's Opposition Memorandum of Law

First Amendment retaliation claim. More specifically, as

Generally construed, Plaintiff makes five arguments in

articulated in his Complaint (which was drafted by Plaintiff,

opposition to Defendants' motion. First, Plaintiff argues that

pro se, and therefore must be construed with special

he engaged in protected speech by creating an Internet blog

solicitude), that claim alleges three separate ways he was

on which he publicly criticized Town officials and exposed

retaliated against for publicly criticizing Town officials.2

of Law].) No. 74, at 2-6 [Defs.' Reply Mem. of Law].)

Second, Plaintiff argues that Town officials took adverse *3 Second, Defendants argue that the record is devoid of any

action against him by issuing noise violations against him admissible evidence that Bertram was personally involved in

with respect to loud dog barking on his property, retaining an alleged deprivation of fire protection services with regard

special prosecutors to pursue civil suits and criminal charges to Plaintiff's residence. (Id. at 6-7.) Furthermore, Defendants

against him, encouraging harassment and extra-judicial argue that Plaintiff cannot demonstrate that any adverse action

threats against him, and treating him differently from other was taken because he was never actually deprived of fire

residents. (Id. at 4-5.) As a result, Plaintiff argues that he protection services and his subjective belief that the fire

suffered a chilling effect on his blogging as well as monetary department may not respond to a fire at his residence is

damages due to the expense required to oppose the Town's insufficient to create a genuine dispute of fact. (Id. at 7-8.)

retaliatory activities. (Id. at 6-8.)

Third, Plaintiff argues that the timing of these adverse actions, E. Statement of Material Facts

i.e., that they began after he created his blog, establishes

the causal connection between his protected speech and the 1. Plaintiff's Failure to Comply

adverse actions. (Id. at 5.) with N.D.N.Y. Local Rule 7.1

Fourth, Plaintiff argues that Bertram is not entitled to qualified Before reciting the material facts of this case, the Court

immunity because it was not objectively reasonable to believe must address Plaintiff's response to Defendant's Rule 7.1

that her actions did not violate Plaintiff's First Amendment Statement of Material Facts. Local Rule 7.1(a)(3) of the Local

rights. (Id. at 5-6.) According to Plaintiff, these actions Rules of Practice for this Court requires a party moving for

consisted of (1) threatening to fire the Town's Dog Control summary judgment to submit a statement of material facts

Officer if he did not serve Plaintiff with a criminal charge supported by specific citations to the record where those facts

related to dog barking, and (2) retaining special prosecutors are established. N.D.N.Y. L.R. 7.1(a)(3). The non-moving

to pursue this charge against Plaintiff without first obtaining party's subsequent response must mirror the moving party's

the Town's approval. (Id. at 9.) statement of material facts by (1) admitting and/or denying

each of the moving party's factual assertions in matching

Fifth, Plaintiff argues that municipal liability extends to numbered paragraphs and (2) supporting any denials with

the Town because of the actions of Bertram, the Town's specific citations to the record where the factual issues

supervisor, and her position as a policymaker. (Id. at 8-9.) arise. Id. Importantly, “[t]he Court shall deem admitted any

properly supported facts set forth in the [moving party's]

Finally, the Court notes that Plaintiff spends considerable Statement of Material Facts that the [non-moving] party does

time in his opposition papers arguing the merits of issues not not specifically controvert.” Id.

raised by Defendants in their motion. For example, Plaintiff

discusses the Town's denial of his FOIL requests, the Town's This Court's “Local Rule requirements are not empty

failure to respond appropriately to alleged vandalism of his formalities.” Bombard v. Gen. Motors Corp., 238 F. Supp.

property, and the sufficiency of the evidence that led to the 2d 464, 467 (N.D.N.Y. 2002) (Munson, J.) (stating that

issuance of noise violations related to dog barking. (See “[t]he courts of the Northern District have adhered to a strict

generally id., at 3-4, 6-9; Dkt. No. 67, ¶¶ 4, 14, 25, 27, 36, application of Local Rule 7.1[a][3]'s requirement on summary

56-107 [Pl.'s Decl.].) judgment motions”); accord, Cross v. Potter, 09-CV-1293,

2013 WL 1149525, at *3 (N.D.N.Y. Mar. 19, 2013) (McAvoy,

J.). Indeed, the underlying purpose of this rule “is to assist

D. Defendants' Reply Memorandum of Law the court in framing the issues and determining whether

In reply to Plaintiff's opposition memorandum of law, there exist any triable issues of fact that would preclude the

Defendants make two arguments. First, Defendants argue entry of summary judgment.” Youngblood v. Glasser, 10-

that, because Plaintiff has not complied with Local Rule 7.1(a) CV-1430, 2012 WL 4051846, at *4 (N.D.N.Y. Aug. 22, 2012)

(3) in his response to their statement of material facts, their (Peebles, M.J.); see also N.Y. Teamsters Conference Pension

Cir. 2005) (noting that “Rules governing summary judgment time was producing noise levels that exceeded those normally

practice are essential tools for district courts, permitting them produced by a resident and, accordingly, [Plaintiff] was in

to efficiently decide summary judgment motions by relieving violation of his Permit.” (Id., ¶ 48.)

them of the onerous task of 'hunt[ing] through voluminous

records without guidance from the parties'”) (quoting Holtz v. On December 7, 2009, Mr. Ennis issued Plaintiff a notice

Rockefeller & Co., 258 F.3d 62, 74 [2d Cir. 2001]). of violation, which informed Plaintiff that the Town had

received several complaints about the noise coming from

In the present case, Plaintiff has failed to respond his property and directed Plaintiff to remedy the violation

appropriately to Defendants' Rule 7.1 Statement of Material by December 23, 2009. (Id., ¶ 49.) Subsequently, Plaintiff

Facts. Specifically, Plaintiff has failed to admit and/or deny contacted Mr. Ennis and requested that his phone number

each of Defendants' factual assertions in matching numbered be given to those who had complained with instructions that

paragraphs. Indeed, Defendants' Rule 7.1 Statement contains they contact Plaintiff directly when there are noise issues

71 paragraphs of factual assertions, while Plaintiff's 7.1 so he can rectify any problems. (Id., ¶ 50.) However, after

Response contains only 11 paragraphs. (Compare Dkt. No. a few months had passed, Plaintiff stopped answering his

62 [Defs.' Rule 7.1 Statement] with Dkt. No. 66 [Pl.'s Rule neighbors' phone calls; and, as a result, his neighbors made

7.1 Response].) Moreover, many of Plaintiff's responses new complaints to Mr. Ennis. (Id., ¶ 51.) After receiving

are conclusory in nature and/or contain legal arguments. these complaints and personally observing the loud noise

The Court notes that, when he responded to Defendants' emanating from Plaintiff's property, Mr. Ennis issued a second

motion, Plaintiff was represented by counsel. Accordingly, notice of violation to Plaintiff on April 26, 2010. (Id., ¶¶

the Court will accept the factual assertions in Defendants' 52-53.) In response, Plaintiff advised Mr. Ennis that he would

7.1 Statement as true to the extent that the evidence in the erect a sound barrier to remedy the issue. (Id., ¶ 54.)

record supports these facts. See Davis v. Cumberland Farms,

Inc., 10-CV-0480, 2013 WL 375477, at *4 (N.D.N.Y. Jan. According to Mr. Ennis, he waited “some time” for Plaintiff

29, 2013) (Scullin, J.) (accepting the defendant's statement to erect, or apply for a permit to construct, a sound barrier

of material facts as true where plaintiff neither admitted nor but neither action was taken. (Id., ¶¶ 55-56.) After continuing

denied defendant's factual assertions); Aktas v. JMC Dev. Co., to receive noise complaints, Mr. Ennis issued a third notice

Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D'Agostino, of violation to Plaintiff on August 9, 2010. (Id., ¶ 56.) On

J.) (accepting the third-party defendants' statement of material the same day, Mr. Ennis met with Bertram and the Town

facts as true because the defendant/third-party plaintiff failed Attorney to discuss the noise issue on Plaintiff's property. (Id.,

to respond to it in accordance with Local Rule 7.1[a][3] ). ¶ 57.) The Town Attorney advised Bertram that Mr. Ennis had

the authority to revoke Plaintiff's home occupation permit if

he determined that Plaintiff was in violation of the permit's

conditions. (Id., ¶ 37.) As a result, Bertram advised Mr. Ennis

2. Undisputed Material Facts

that he may revoke Plaintiff's permit if he determined that the

*4 For purposes of this motion, the undisputed material permit's conditions had been violated. (Id., ¶ 38.) Later that

facts are as follows. Gerald Ennis has served as the Zoning same day (August 9, 2010), Mr. Ennis made the decision to

Enforcement Officer for the Town of Stuyvesant continuously revoke Plaintiff's permit and notified Plaintiff of that fact. (Id.,

since 2003. (Dkt. No. 62, ¶ 43 [Defs.' Rule 7.1 Statement].) ¶¶ 39, 59.) Neither Plaintiff's statements concerning various

In this capacity, Mr. Ennis issued Plaintiff a Class 2 Home issues in the Town nor his postings on various Internet sites

Occupation Permit in August, 2009. (Id., ¶ 44.) Under had any bearing on the decision to revoke Plaintiff's permit.

this permit, “[n]o unusual appearances, noise, vibration, (Id., ¶¶ 40, 61.)

smoke, dust, odors, heat, glare or electrical disturbances

that exceed those normally produced by a resident shall Plaintiff testified at his deposition that the basis for his claim

be permitted.” (Id., ¶ 45.) Following the issuance of this that he was deprived of fire protection services is that, “in

permit, Mr. Ennis received numerous noise complaints from 2011, or perhaps late 2010,” a local fire department chief,

Plaintiff's neighbors in regard to increasingly loud barking Steve Montie, posted an online statement that Plaintiff should

from dogs on Plaintiff's property. (Id., ¶¶ 46-47.) Following an move out of town. (Id., ¶ 14.) Plaintiff testified that the post

investigation into these complaints, Mr. Ennis concluded that was made in response to one of his earlier posts on a local

of alleged ethical violations committed by Bertram. (Id., ¶¶ II. STANDARD GOVERNING A MOTION FOR

15-16.) The alleged post by Mr. Montie states in its entirety SUMMARY JUDGMENT

as follows: Under Fed. R. Civ. P. 56, summary judgment is warranted

if “the movant shows that there is no genuine dispute as to

William, any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of

How much more of this are you going to do ? ? ? ? You fact is “genuine” if “the [record] evidence is such that a

are wasting more tax payer dollars than its worth. Man up reasonable jury could return a verdict for the nonmoving

correct your problems and move on, or better yet move party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

out. (1986). As a result, “[c]onclusory allegations, conjecture and

speculation ... are insufficient to create a genuine issue of

S

fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)

(Id., ¶ 19.) The author of this post is not identified by name (citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the

but only by the email address stuyvesantchief@fairpoint.net; Supreme Court has famously explained, “[the non-moving

and, as indicated above, the post is signed only as “S.” (Id., party] must do more than simply show that there is some

¶ 18.) metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86

*5 Plaintiff testified that the statements in the alleged post (1986). As for the materiality requirement, a dispute of fact is

amounted to a threatened denial of fire department services “material” if it “might affect the outcome of the suit under the

because “the fire chief told me I should move out of town, governing law.” Anderson, 477 U.S. at 248. “Factual disputes

which makes me wonder if there was a fire at my house that are irrelevant or unnecessary will not be counted.” Id.

would he come.” (Id., ¶ 20.) However, Plaintiff testified that

no one has ever told him that the fire department would not In determining whether a genuine issue of material fact

respond if there was a fire at his house. (Id., ¶ 22.) In addition, exists, the Court must resolve all ambiguities and draw all

Plaintiff testified that there are two distinct fire departments in reasonable inferences against the movign party. Anderson,

the Town, Stuyvesant Company 1 and Stuyvesant Company 477 U.S. at 255. In addition, “[the moving party] bears the

2, which divide their responses to emergency calls in the initial responsibility of informing the district court of the

Town geographically. (Id., ¶ 23.) Steve Montie is the Chief basis for its motion, and identifying those portions of the

of Stuyvesant Company 1 and a different chief controls ... [record] which it believes demonstrate[s] the absence of

Company 2. (Id., ¶ 25.) Plaintiff's property is located in any genuine issue of material fact.” Celotex v. Catrett, 477

the geographic area covered by Company 2. (Id., ¶ 24.) U.S. 317, 323-24 (1986); see also Fed. R. Civ. P. 56(c),

According to Bertram, she did not “in any way direct any fire (e). However, when the moving party has met this initial

department to deprive or threaten to deprive [Plaintiff] of fire burden of establishing the absence of any genuine issue

services.” (Id., ¶ 33.) of material fact, the nonmoving party must come forward

with specific facts showing a genuine dispute of material

Finally, Plaintiff testified that there was “never” a time that he fact for trial. Fed. R. Civ. P. 56(c), (e). Where the non-

did not publicize or speak out against some issues based upon movant fails to deny the factual assertions contained in the

any actions by the Town and the alleged efforts to silence him movant's Rule 7.1 Statement of Material Facts in matching

did not work. (Id., ¶ 26.) In fact, following the alleged actions numbered paragraphs supported by a citation to admissible

by the Town, Plaintiff did more blogging and increased record evidence (as required by Local Rule 7.1[a][3] of the

his “political activities against the Town.” (Id., ¶ 27.) With Court's Local Rules of Practice), the court may not rely solely

respect to his business, Plaintiff testified that, despite losing on the movant's Rule 7.1 Statement; rather, the court must be

his business permit in August, 2010, he continued to operate satisfied that the citations to evidence in the record support

his business uninterrupted without a permit as he had before the movant's assertions. See Giannullo v. City of N.Y., 322

it was issued in 2009. (Id., ¶ 29.) Accordingly, there was F.3d 139, 143, n.5 (2d Cir. 2003) (holding that not verifying in

no interruption to Plaintiff's business as a result of his home the record the assertions in the motion for summary judgment

business permit being revoked. (Id., ¶¶ 28, 30.) “would derogate the truth-finding functions of the judicial

process by substituting convenience for facts”).

III. ANALYSIS chilling effect where, after an arrest, the plaintiff continued to

publish his newspaper through which he criticized the village

A. Whether Plaintiff Suffered an Adverse Action

government); Spear v. Town of W. Hartford, 954 F.2d 63,

*6 After carefully considering the matter, the Court answers

67 (2d Cir. 1992) (finding no chilling effect where, after the

this question in the negative for the reasons set forth in

filing of a lawsuit, the plaintiff continued to write criticizing

Defendants' memorandum of law and reply memorandum of

editorials in the same manner as before the lawsuit).

law. (Dkt. No. 61, at 3-8 [Defs.' Mem. of Law]; Dkt. No. 74, at

6-8 [Defs.' Reply Mem. of Law].) To those reasons, the Court

Second, to the extent that Plaintiff argues that he perceived

adds the following two points.

the online post regarding the loss of fire protection as a real

threat, he is still required to show that his perception was

As this Court noted in its prior decisions, in order to

objectively reasonable, i.e., “that the defendant[s'] actions

state a claim for retaliation under the First Amendment, “a

had some actual, non-speculative chilling effect.” Colombo v.

plaintiff must prove (1) his conduct was protected by the

O'Connell, 310 F.3d 115, 117 (2d Cir. 2002); see also Laird v.

First Amendment, (2) the defendants' actions were motivated

Tatum, 408 U.S. 1, 13-14 (1972) (holding that “[a]llegations

or substantially caused by the exercise of that right, and

of a subjective 'chill' are not an adequate substitute for a

(3) defendants' actions effectively 'chilled' the exercise of

claim of specific present objective harm or a threat of specific

plaintiff's First Amendment right.” Pflaum, 937 F. Supp. 2d

future harm”). Plaintiff's subjective belief that the online

at 303 (citing Dillon v. Morano, 497 F.3d 247, 251 [2d Cir.

post constituted a real threat, without more, is insufficient to

2007]). “In cases 'involving criticism of public officials by

demonstrate an actual chilling effect on his First Amendment

private citizens,' the Second Circuit has generally 'impose[d]

rights. Indeed, as discussed above in Point I.E.2. of this

an actual chill requirement for First Amendment retaliation

Decision and Order, Plaintiff admitted that no one had told

claims[,]' i.e., a requirement that the plaintiff allege and

him that the fire department would not respond if there was

ultimately prove an 'actual chill' of his First Amendment

a fire at his house. Moreover, a different fire chief than the

rights.” Hafez v. City of Schenectady, 894 F. Supp. 2d 207, 221

one who allegedly authored the online post is responsible for

(N.D.N.Y. 2012) (D'Agostino, J.) (quoting Gill v. Pidlypchak,

responding to fire calls in the location of Plaintiff's residence.

389 F.3d 379, 381 [2d Cir. 2004]). “To establish this element,

it is not enough for the plaintiff simply to show that he

changed his behavior in some way; he must show that the B. Whether There Was a Causal Connection Between

defendant intended to, and did, prevent or deter him from Plaintiff's Speech and Any Adverse Action

exercising his rights under the First Amendment.” Hafez, 894 *7 After carefully considering the matter, the Court answers

F. Supp. 2d at 221. “However, 'where the retaliation is alleged this question in the negative for the reasons set forth below.

to have caused an injury separate from any chilling effect,

such as a job loss or demotion, an allegation as to a chilling To establish the second element of his First Amendment

effect is not necessary to state a claim.'” Id. (quoting Puckett v. retaliation claim, “plaintiff must provide specific proof of

City of Glen Cove, 631 F. Supp. 2d 226, 239 [E.D.N.Y. 2009]); defendants' improper motivation with either circumstantial or

see also Brink v. Muscente, 11-CV-4306, 2013 WL 5366371, direct evidence.” Media All., Inc. v. Mirch, 09-CV-0659, 2011

at *7 (S.D.N.Y. Sept. 25, 2013) (noting that, in private citizen WL 3328532, at *5 (N.D.N.Y. Aug. 2, 2011) (D'Agostino,

cases, “various forms of concrete harm have been substituted J.) (citing Curley, 285 F.3d at 73). “Circumstantial evidence

for the 'actual chilling' requirement”). includes close temporal proximity between plaintiff's speech

and the alleged retaliatory act.” Mirch, 2011 WL 3328532, at

First, it is clear from Plaintiff's deposition testimony that there *5.

was no actual chilling of his protected speech as a result of

Defendants' actions. As discussed above, Plaintiff admitted “Regardless of the presence of retaliatory motive, however,

that he increased his political activities and continued to a defendant may be entitled to summary judgment if he

publicize his opinions against the Town in the face of its can show dual motivation, i.e., that even without the

alleged efforts to silence him. “Where a party can show no improper motivation the alleged retaliatory action would have

change in his behavior, he has quite plainly shown no chilling occurred.” Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir.

of his First Amendment right to free speech.” Curley v. Vill. 2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

in defendant's action. The burden then shifts to defendant to activities of Town officials. (Dkt. No. 67, ¶ 15 [Pl.'s Decl.].)

show it would have taken exactly the same action absent the

improper motive.” Scott, 344 F.3d at 288. For example, on January 1, 2011, Plaintiff wrote about the

alleged inflation of billable time by the Town Attorney that

was spent on work paid for by the Town. (Id. at 65:8-11.)

Around the same time, Plaintiff met with Bertram to discuss

1. Revocation of Plaintiff's Business Permit

his discovery of specific instances of corruption by public

In denying Defendants' underlying motion to dismiss officials, including the alleged inflation of billable work by

Plaintiff's First Amendment claim, this Court held that the Town Attorney. (Dkt. No. 59, Attach. 7, at 62:13-15;

Plaintiff had sufficiently alleged a concrete harm through 64:9-15 [Pl.'s Dep. Tr.].) On January 15, 2011, a few days

the loss of his business permit, and consequently, the loss after this meeting occurred, Plaintiff was issued a criminal

of business income, as a result of Defendants' alleged summons for the offense of “habitual loud barking,” in

retaliatory actions. Pflaum, 937 F. Supp. 2d at 308. Having violation of N.Y. Local Law § 1. (Id. at 61:19-22; Dkt. No.

carefully reviewed the record, the Court finds that Plaintiff 68, Attach. 7 [Criminal Summons]; Dkt. No. 67, ¶ 15 [Pl.'s

has failed to create a genuine dispute of material fact Decl.].) Plaintiff testified at his deposition that the Town

regarding Defendants' alleged improper motive. Specifically, Attorney went to great lengths to research the Local Law that

with respect to the revocation of his business permit, the he was charged under and assisted one of Plaintiff's neighbors

undisputed facts establish that the Town received complaints in drafting an affidavit upon which the criminal summons

regarding the noise emanating from Plaintiff's property. was based. (Dkt. No. 59, Attach. 7, at 65:17-21 [Pl.'s Dep.

Plaintiff was given two3 noise violations over the course of Tr.]; Dkt. No. 67, ¶ 107 [Pl.'s Decl.].) Plaintiff argues that

he is the first Town resident to be charged under this section

approximately one year and ample opportunity to rectify the

of the Local Law. (Dkt. No. 67, ¶¶ 100, 106 [Pl.'s Decl.].)

problem. (Dkt. No. 67, Attach. 5.) Because the noise problem

Finally, Plaintiff argues that Bertram retained outside counsel

and complaints continued, Mr. Ennis revoked Plaintiff's

to pursue this charge against him, which was later dismissed.

permit.4 Even if Plaintiff were able to establish that an

(Dkt. No. 67, ¶¶ 5, 19, 21 [Pl.'s Decl.]; Dkt. No. 59, Attach.

improper motive played a part in this decision, it is clear 7, at 57:16-18 [Pl.'s Dep. Tr.].)

to the Court that, under these circumstances, the revocation

would have still occurred. Indeed, Plaintiff challenged the Thereafter, in October 2011, Plaintiff filed an Article 78

decision to revoke his permit in appeals made to the Town's petition in New York State Supreme Court challenging

Zoning Board of Appeals and in two actions filed in New the Town's denial of Plaintiff's FOIL requests. (Dkt. No.

York State Supreme Court. (Dkt. No. 67, Attachs. 1 & 2.) 59, Attach. 7, at 67:7-12 [Pl.'s Dep. Tr.].) Plaintiff sought

Although Plaintiff was successful in his state court actions, disclosure of the information in the FOIL requests to

those decisions were based, in part, upon the Town's failure to substantiate his belief that Town officials were engaging

follow proper procedure, rather than the merits of the Town's in illegal activities. (Dkt. No. 67, ¶¶ 43-44 [Pl.'s Decl.].)

decision. (Id.) One week after commencing that action, Plaintiff received a

second criminal summons for the same offense related to loud

dog barking. (Dkt. No. 68, Attach. 7 [Appearance Ticket];

2. Criminal Charges Dkt. No. 59, Attach. 7, at 56:16-19; 67:7-12 [Pl.'s Dep. Tr.].)

Plaintiff testified that he had “almost no dogs” on his property

*8 Plaintiff has also failed to demonstrate an improper in October 2011. (Dkt. No. 59, Attach. 7, at 67:8-10 [Pl.'s Dep.

motive with respect to his claim that he received false criminal Tr.].) According to Plaintiff, that charge was neither dismissed

charges in retaliation for comments on his website about nor withdrawn, but “vanished.” (Id., at 57:19-58:9.)

corruption among public officials. Plaintiff relies on the

temporal proximity of these charges with a meeting he had While Plaintiff's allegations may plausibly suggest that an

with Bertram and his filing of an Article 78 petition in New improper motive played a role in the charges brought

York State Supreme Court. More specifically, Plaintiff argues against him, Defendants have submitted admissible record

that he began an Internet blog on or about January 1, 2011, evidence that establishes otherwise. (Dkt. No. 59, Attach. 17.)

Specifically, the criminal information in question is signed

part, that “my complaint is that the dogs at Glencadia Dog filings before a town hall meeting as threatening in nature

Camp exhibit ongoing habitual barking/howling at any given due to the “timing and manner of the interaction.” (Id.)

time of day or night. This has been an issue since the Fall of This is because Plaintiff “had announced [his] intention to

2009.” (Id.) Furthermore, an affidavit filed by Wes Powell, the call for a referendum frequently and in many forums prior

Town's Dog Control Officer, states that he received repeated to appearing for the meeting.” (Id.) Furthermore, Plaintiff

complaints from Mr. Platt throughout 2010, culminating in requested that, in order to “avoid the impression that you

the noise complaint that served as the basis for the criminal coordinate your tax-related activities with other people in

charge. (Dkt. No. 59, Attach. 16, ¶¶ 3-5 [Powell Aff.].) Mr. government in order to intimidate free speech, please do not

Powell states that the complaint was written by Mr. Platt in present important information to me in such an information

his presence and that no Town official directed Mr. Powell to [sic] and unverifiable way.” (Id.)

serve Plaintiff with the criminal summons. (Id., ¶¶ 7-10.)

However, Mr. Gleason's response to Plaintiff's letter suggests

*9 Conversely, Plaintiff has not submitted any admissible that their interaction was not meant as a threat to

record evidence supporting his claim that the Town Attorney raise Plaintiff's taxes or “was in any way politically

(who is not a party) played any role in the charge being motivated.” (Dkt. No. 69, Attach. 18, at 4 [Letter from Pl.

filed against him or that he is the only resident to have to Gleason].) More specifically, Mr. Gleason explains that

ever been charged under this section of the Local Law. he needed to re-assess Plaintiff's property in light of the fact

Similarly, Plaintiff's contention that the Town pressured Mr. that Plaintiff was now running a kennel (business) on his

Platt to file a complaint against him (Dkt. No. 67, ¶ 7[Pl.'s property and decided to hand deliver his letter knowing that

Decl.] ) is unsubstantiated. While the timing of the charge Plaintiff would be present for the town hall meeting. (Id.)

may appear suspicious, the Town cannot control when its Moreover, Mr. Gleason reassured Plaintiff that politics do not

residents decide to file a complaint and, in light of the record dictate how he performs his job and promised that all future

evidence demonstrating that there was a preexisting noise communication will be transmitted through mail rather than

problem on Plaintiff's property, the complaint is unsurprising. in-person. (Id.)

Moreover, the fact that Plaintiff believes the Town shored up

its criminal charge against him is of little, if any, materiality. Plaintiff has failed to submit any additional evidence with

Finally, because the second charge seemingly “vanished,” no respect to his tax assessment, that his taxes were improperly

documentation or evidence (other than the appearance ticket raised or that Mr. Gleason acted with a retaliatory animus.5

itself) has been submitted with respect to that charge. In any Similarly, no evidence has been submitted to substantiate

event, because the charge was never prosecuted, Plaintiff Plaintiff's claim that Bertram encouraged Mr. Gleason to use

has failed to support his claim that he suffered any harm. his authority as Town Assessor to intimidate Plaintiff. In sum,

Accordingly, the Court finds that Plaintiff has failed to meet Plaintiff has wholly failed to satisfy his burden demonstrating

his burden in demonstrating an improper motive with respect that he suffered harm as a result of any action taken by Mr.

to this charge. Gleason and that Mr. Gleason acted with an improper motive.

*10 For all of these reasons, the Court finds that Plaintiff

3. Town Assessor Gleason has failed to create a genuine dispute of material fact with

respect to his First Amendment claim. Because the Court has

Plaintiff claims that Town Assessor Howard Gleason (also not reached this conclusion, it need not, and does not, consider the

a party) threatened to raise his property taxes for engaging in merits of Defendant Bertram's alternative qualified immunity

political activities when Mr. Gleason hand delivered a letter to argument.

Plaintiff before a public meeting. (Dkt. No. 69, Attach. 18, at

3 [Letter from Pl. to Gleason]; Dkt. No. 67, ¶ 29 [Pl.'s Decl.].) ACCORDINGLY, it is

The only evidence submitted with respect to this claim is

not the original letter from Mr. Gleason to Plaintiff but letter ORDERED that Defendants' motion for summary judgment

correspondence from Plaintiff to Mr. Gleason. (Dkt. No. 69, (Dkt. No. 59) is GRANTED. The Clerk of the Court is

Attach. 18, at 3 [Letter from Pl. to Gleason].) Plaintiff's letter directed to enter judgment in favor of the Defendants and

to Mr. Gleason, dated October 5, 2010, states that Plaintiff close this case.

All Citations

Not Reported in Fed. Supp., 2016 WL 865296

Footnotes

1 Although Plaintiff is currently proceeding pro se, the Court notes that he had counsel when preparing his

response to Defendant's motion for summary judgment. Accordingly, no need exists to construe Plaintiff's

response with the special solicitude ordinarily afforded to pro se litigants.

2 The Court notes that, while it did not previously (i.e., in its prior decisions) liberally construe Plaintiff's

retaliation claim as arising under three separate theories, it does so now. The Court further notes that it

has the power to address these two additional theories for each of two alternative reasons: (1) because

Defendants moved for dismissal of Plaintiff's retaliation claim in its entirety, Plaintiff has had sufficient notice

and an opportunity to be heard with respect to the two theories in question; and (2) in any event, even if

Plaintiff cannot be said to have had such notice and an opportunity to be heard, he filed his Complaint pro

se and the Court finds the two theories to be so lacking in arguable merit as to be frivolous, see Fitzgerald

v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has

power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has

paid statutory filing fee).

3 As discussed above, Plaintiff was actually given three noise violations. However, because his permit was

revoked on the same day that he received the third violation, the Court will disregard the third violation for

purposes of this analysis.

4 The Court notes that Plaintiff spends considerable time in his opposition papers disputing the sufficiency of the

evidence and procedures that were followed that led to the issuance of noise violations. (See generally Dkt.

No. 67, ¶¶ 56-95 [Pl.'s Decl.].) However, this Court is not the proper forum for that dispute. Furthermore, to

the extent that the New York Supreme Court observed that there appeared “to have been a disproportionate

amount of time and money spent on [the noise violation] notice,” and that the records did not “reveal a real

issue with dog-barking,” those observations are not binding upon this Court. (Dkt. No. 67, Attach. 2, at 6.)

Setting aside the fact that the observations constitute dicta, Defendants have submitted admissible record

evidence demonstrating that Mr. Ennis acted upon complaints made to him by residents of the Town, which

Plaintiff has failed to properly dispute.

5 For example, with regard to this lack of additional evidence regarding retaliatory animus, Plaintiff has failed to

adduce admissible record evidence establishing that, even assuming Mr. Gleason knew of Plaintiff's intent to

engage in protected speech, the so-called “manner of the interaction” by Mr. Gleason (i.e., the hand delivery

of the letter) was in fact unusual for Mr. Gleason given the date of the letter and the date of the public

meeting. Moreover, Plaintiff has failed to adduce admissible record evidence that the so-called “timing ...

of the interaction” is significant, given his rather constant exercise of his First Amendment rights during the

time in question.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2003 WL 24243989

Only the Westlaw citation is currently available. DISCUSSION

United States District Court,

W.D. New York. Because plaintiff has met the statutory requirements of 28

U.S.C. § 1915(a), plaintiff is granted permission to proceed in

Salvatore OGNIBENE, Plaintiff, forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides

v. that the Court shall dismiss a case in which in forma pauperis

NIAGARA COUNTY SHERIFF'S DEPARTMENT, status has been granted if, at any time, the Court determines

Niagara County District Attorney's Office, Samuel that the action (i) is frivolous or malicious; (ii) fails to state

Novara, Esq., Town of Wheatfield Court, Niagara a claim upon which relief may be granted; or (iii) seeks

County Court, Niagara County Supreme Court, New monetary relief against a defendant who is immune from such

relief.

York State Appellate Division, 4TH Judicial Dept.,

and New York State Court of Appeals, Defendants. In evaluating the complaint, the Court must accept as true all

factual allegations and must draw all inferences in plaintiff's

No. 03–CV–0678E(SR).

favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999).

|

Dismissal is not appropriate “unless it appears beyond doubt

Dec. 1, 2003.

that the plaintiff can prove no set of facts in support of his

Attorneys and Law Firms claim which would entitle him to relief.” Conley v. Gibson,

355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). “This

Salvatore Ognibene, Niagara Falls, NY, pro se. rule applies with particular force where the plaintiff alleges

civil rights violations or where the complaint is submitted pro

se.” Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998).

DECISION AND ORDER

Based on its evaluation of the complaint, the Court finds that

ARCARA, J. plaintiff's claims must be dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) because they fail to state a claim upon which

relief may be granted.

INTRODUCTION

*1 Plaintiff has filed this pro se action seeking relief under

42 U.S.C. § 1983 (Docket No. 1, 3) and has requested Plaintiff's Allegations

permission to proceed in forma pauperis (Docket No.

2). Plaintiff claims that the defendants have violated his Plaintiff alleges that his constitutional rights were violated

constitutional rights in relation to an arrest that occurred on and therefore brings this action pursuant to 42 U.S.C. § 1983.

July 10, 1997 for which plaintiff was given an Adjournment In order to state a claim under § 1983, plaintiff must allege

in Contemplation of Dismissal (“ACD”)1 on November 17, (1) that the challenged conduct was attributable at least in part

1997 in the Town of Wheatfield (New York) Town Court. to a person acting under color of state law, and (2) that such

(Complaint, ¶ 5). Apparently, plaintiff later filed some type conduct deprived plaintiff of a right, privilege, or immunity

of motion or appeal in the Town Court of Wheatfield seeking secured by the Constitution or laws of the United States.

to dismiss the ACD. (Docket No. 3, Table of Contents).2 Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993).

This motion was denied and appeals ensued through the state

Plaintiff names as defendants: (1) the Niagara County

court system all the way to the New York Court of Appeals,

Sheriff's Department (“Sheriff's Department”), the law

which denied plaintiff leave to appeal on or about September

enforcement agency that responded to his daughter's “911”

17, 2003. (Complaint, ¶¶ 5–10; Table of Contents, ¶¶ 2–6).

telephone call, which occurred while plaintiff was admittedly

For the reasons discussed below, plaintiff's request to proceed

striking her in his home on July 10, 1997, and took plaintiff

as a poor person is granted and the complaint is dismissed

into custody (Complaint, Statement of Claim, ¶¶ 1–3); (2)

pursuant to 28 U.S.C. § 1915(e)(2)(B).

(id., ¶¶ 4–5); (3) Samuel J. Novara, plaintiff's defense accrued at the earliest on July 10, 1997 when he was arrested,

counsel in the proceedings in Town Court (id., ¶ 6); (4) and at the latest either on November 17, 1997, when the

the Town of Wheatfield Town Court (“Wheatfield Town charges against him were resolved by means of an ACD

Court”), “Presiding” Town Justice Robert Cliffe, where (Complaint, Statement of Claim, ¶¶ 3–5; Table of Contents,

plaintiff was prosecuted and obtained an ACD on November ¶¶ 1–2), or on March 28, 2000, when a motion plaintiff made

17, 1997 (id., ¶ 5); (5) the Niagara County Court (“County in the Town Court was denied. (Table of Contents, ¶ 2). The

Court”), “Presiding” Judge, Hon. Peter Broderick, the court statute of limitations for an action filed under 42 U.S.C. §

to which plaintiff appealed on or about April 14, 2000 1983 in a federal court sitting in New York is three years.

(Complaint; Table of Contents, ¶ 3); (6) the New York Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102

Supreme Court, Niagara County (“State Supreme Court”), L.Ed.2d 594 (1989); Jewell v. County of Nassau, 917 F.2d

“Presiding” Justice, Hon. John Lane, the court to which 738, 740 (2d Cir.1990). Therefore, any and all claims against

plaintiff appealed on or about February 16, 2001 and which these defendants are time barred.

denied his request for relief on or about June 13, 2001

(Table of Contents, ¶ 3); (7) the New York State Supreme Second, the claims against the Sheriff's Department, the

Court, Appellate Division, Fourth Department (“Appellate DA's Office, and the Wheatfield Town Court must also be

Division”), “Presiding” Justice Pine, and Justices Hayes, dismissed because there is no allegation that any of the

Hurlburt, Kehoe and Burns, the court to which plaintiff further individual government officials, such as the Town Justice,

appealed and which dismissed plaintiff's appeal on April 23, deputies or assistant prosecutors, were acting pursuant to

2002 for failure to prosecute (Complaint, Statement of Claim, a policy or custom of the Town of Wheatfield or Niagara

¶ 8; Table of Contents, ¶ 6 A—B); and (8) the New York County. In the absence of such an allegation, the complaint

Court of Appeals (“Court of Appeals”), “Presiding” Justice, fails to state a claim for relief and must be dismissed.

Hon. Judith Kaye, which denied plaintiff leave to appeal on See Monell v. New York City Dept. of Social Services, 436

or about September 17, 2003. (Complaint, ¶ 10; Table of U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Contents, ¶ 7). Municipalities are not subject to § 1983 liability solely on the

basis of a respondeat superior theory. Collins v. City of Harker

*2 The plaintiff's complaint, liberally construed, appears to Heights, 503 U.S. 115, 121, 112 S.Ct. 1061, 117 L.Ed.2d 261

allege a violation of plaintiff's civil rights based upon claims (1992); Monell, 436 U.S. at 694.

of false arrest and false imprisonment on July 10–11, 1997

arising out of his arrest (Complaint, Statement of Claim, ¶¶ Additionally, to the extent that the plaintiff may have intended

2–4), and the “faulty procedures” of the prosecutor and the to sue the Town Justice individually (Complaint, Defendant's

courts. The complaint also alleges that the prosecutor and Information), in addition to or instead of the Town Court, the

the courts named as defendants failed to insure that plaintiff Town Justice would be entitled to absolute judicial immunity.

obtained his Miranda warnings and his “right” to give a See Stump v. Sparkman, 435 U.S. 349, 356–57, 98 S.Ct.

statement, and that they failed to insure that he obtained his 1099, 55 L.Ed.2d 331 (1978) (internal quotations and citation

various Sixth Amendment rights, such as the right to a speedy omitted). The same would be true with respect to the District

public trial, the right to an impartial jury, the right to notice Attorney or any Assistant District Attorneys involved in the

of the charges against him, the right to confront witnesses, prosecution of plaintiff. Prosecutors are entitled to absolute

the right to compulsory process, and the right to counsel. immunity from suits brought under § 1983 “arising out of

(Id., ¶¶ 4–10). The complaint also includes a claim of either [their] prosecutorial duties that are ‘intimately associated

a violation of § 1983 or legal malpractice or both against with the judicial phase of the criminal process.” ’ Doe v.

plaintiff's defense attorney. (Id., ¶ 6). Phillips, 81 F.3d 1204, 1209 (2d Cir.1996) (quoting Imbler v.

Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128

(1976)), cert. denied, 520 U.S. 1115 (1997). Accordingly, the

claims against the Sheriff's Department, the DA's Office, the

Claims against Sheriff's Department,

Wheatfield Town Court and, to the extent he is a defendant

DA's Office and Wheatfield Town Court

herein, the Town Justice, Robert B. Cliffe, are dismissed.

Plaintiff's claims against the Sheriff's Department, the DA's

Office and the Wheatfield Town Court must be dismissed.

Claims against County Court, State Supreme See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d

Cir.2003); 28 U.S.C. § 1367(c)(3); see also Giordano v. City

Court, Appellate Division, and Court of Appeals

of New York, 274 F.3d 740, 754 (2d Cir .2001) (noting that

*3 Plaintiff's complaint purports to allege that these courts dismissal of pendent state law claims is appropriate where all

somehow violated his numerous Sixth Amendment rights. federal claims have been dismissed and “it appears that the

In reality, however, what plaintiff is alleging is that these state issues substantially predominate”) (internal quotation

courts were in error when they denied or dismissed his various marks omitted). Accordingly, the complaint is dismissed

requests to overturn the ACD disposition of the charges without prejudice as against defendant Novara.

arising from the July 10, 1997 incident. These claims too must

be dismissed.

CONCLUSION

To the extent the plaintiff names various state courts as

defendants and seeks either legal or equitable relief against Plaintiff has met the statutory requirements of 28 U.S.C.

them under § 1983, they are immune from such suit under § 1915(a). Accordingly, plaintiff's request to proceed in

the Eleventh Amendment. Papasan v. Allain, 478 U.S. 265, forma pauperis is granted and, for the reasons discussed

276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Pennhurst State above, the complaint is dismissed with prejudice, pursuant

School & Hospital v. Halderman, 465 U.S. 89, 98–100, 104 to 28 U.S.C. § 1915(e)(2)(B)(ii), except with respect to the

S.Ct. 900, 79 L.Ed.2d 67 (1984). As agencies or arms of the state common law legal malpractice claim against defendant

State of New York, the courts are immune from suit under Samuel Novara, which is dismissed without prejudice.

the Eleventh Amendment. See Kentucky v. Graham, 473 U.S.

159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114; see also Saint– *4 The Court hereby certifies, pursuant to 28 U.S.C. §

Fleur v. City of New York, 2000 WL 280328, *2 (S.D.N.Y., 1915(a)(3), that any appeal from this Order would not be

Mar.14, 2000) (collecting cases); Fields v. Walthers, No. 94– taken in good faith, and leave to appeal to the Court of

CV–1659, 1997 WL 204308 at *2 (N.D.N.Y. April 5, 1997) Appeals as a poor person is denied. Coppedge v. United

(“For Eleventh Amendment purposes, governmental entities States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

of the state that are considered ‘arms of the state’ receive Further requests to proceed on appeal as a poor person should

Eleventh Amendment immunity.”). Accordingly, plaintiff's be directed, on motion, to the United States Court of Appeals

claims against the County Court, the State Supreme Court, for the Second Circuit, in accordance with Rule 24 of the

the Appellate Division, and the Court of Appeals must be Federal Rules of Appellate Procedure.

dismissed.

ORDER

Claims against Samuel Novara

IT HEREBY IS ORDERED, that plaintiff's request to proceed

The complaint names Samuel Novara, plaintiff's defense in forma pauperis is granted;

counsel, as a defendant, and either alleges a § 1983 claim

or a state common law legal malpractice claim, or both, FURTHER, that the complaint is dismissed with prejudice,

against him. In any event, the claim or claims pled against this except with respect to the state common law legal malpractice

defendant must be dismissed. First, assuming that plaintiff claim against defendant Samuel Novara, which is dismissed

intended to sue defense counsel under § 1983, such a claim without prejudice; and

must be dismissed because criminal defense counsel are not

“state actors” for purposes of the “state action” requirement FURTHER, that leave to appeal to the Court of Appeals as a

of § 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. poor person is denied.

445, 70 L.Ed.2d 509 (1981). Second, assuming that plaintiff

intended to sue his defense counsel for legal malpractice in IT IS SO ORDERED.

relation to the handling and disposition of his criminal matter,

this Court declines to exercise supplemental jurisdiction, 28

Not Reported in F.Supp.2d, 2003 WL 24243989

Footnotes

1 See N.Y.Crim. Proc. Law § 170.55. This disposition cannot be obtained without the consent of both parties

and the court. Id.

2 Shortly after filing the complaint, plaintiff filed what he entitled a “Table of Contents” which outlines the dates

of the various court filings and dispositions that are at issue in his complaint. This Court will treat this Table of

Contents as a document attached to the complaint and incorporated by reference in the complaint. Chance v.

Armstrong, 143 F.3d 698, 698 n. 1 (2d Cir.1998) (“the court may consider facts set forth in exhibits attached

as part of the complaint as well as those in the formal complaint itself”); see Cortec Industries, Inc. v. Sum

Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (“the complaint is deemed to include any written instrument

attached to it as an exhibit or any statements or documents incorporated in it by reference”).

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2018 WL 1832929 and for the purposes of the instant motion, are presumed to

Only the Westlaw citation is currently available. be true.

United States District Court, E.D. New York.

The Plaintiff owned and had a valid license for ten firearms.

Russell RILEY, Plaintiff, On January 9, 2017, members of the NYSP entered the

v. Plaintiff’s home without a warrant and seized ten firearms.

Andrew CUOMO, in his official capacity

as governor of the State of New York, The firearms have not been returned to the Plaintiff, and there

has been no hearing regarding the seizure of the firearms.

New York State Police, Defendant(s).

2:17-cv-01631 (ADS)(AYS) The Plaintiff makes broad references to the New York Secure

| Ammunition and Firearms Enforcement Act of 2013 (the

Signed 04/16/2018 “NY SAFE Act”), but does not explicitly state that his

firearms were confiscated as a result of that statute.

Attorneys and Law Firms

Christopher Joseph Cassar, 13 East Carver Street, B. The Relevant Procedural History

Huntington, NY 11743, By: Christopher J. Cassar, Esq., Of On March 23, 2017, the Plaintiff filed his complaint. The

Counsel, Attorney for the Plaintiff. complaint alleges that the NY SAFE Act is unconstitutional

under the Fourth and Fourteenth Amendments to the United

New York State Office of the Attorney General, Nassau States Constitution in that it fails to provide gun owners who

Regional Office, 200 Old Country Road, Suite 240, Mineola, have had their firearms seized with a hearing. However, the

NY 11501, By: Christina H. Bedell, Assistant Attorney Plaintiff does not seek a declaratory judgment declaring that

General, Counsel for the Defendants. the NY SAFE Act is unconstitutional. Furthermore, as stated

above, he does not explicitly state that his guns were seized

because of that statute; or, if they were, how that statute

MEMORANDUM OF DECISION & ORDER caused his firearms to be seized.

ARTHUR D. SPATT, United States District Judge The complaint alleges that the Plaintiff’s Fourth, Fifth,

*1 The Plaintiff Russel Riley (the “Plaintiff”) brought this and Fourteenth Amendment rights were violated when the

federal civil rights action pursuant to 42 U.S.C. § 1983 Defendants seized his firearms without a warrant; failed to

(“Section 1983”) against the Defendants Andrew Cuomo, in provide him with a hearing; and illegally obtained statements

his official capacity of the Governor of the State of New from him. In those ways, the Defendants allegedly violated

York (“Governor Cuomo,” the “Governor,” or “Cuomo”) and Section 1983.

the New York State Police (the “NYSP”) (collectively, the

“Defendants”). The Plaintiff seeks declaratory relief in the form of an

order stating that the Defendants violated his constitutional

Presently before the Court is a motion by the Defendants rights. He asks that the Court order that the firearms be

to dismiss the complaint pursuant to Federal Rule of Civil returned to him. Further, he seeks “a judgment ... requiring the

Procedure (“FED. R. CIV. P.”) 12(b)(1) and 12(b)(6). For the Defendants to conduct a prompt hearing following the seizure

following reasons, the Defendants' motion is granted in its of the property in all cases at which time the Defendants must

entirety. demonstrate probable cause for the seizure of the property and

that it was necessary that the property remain in the custody

of the Defendants.” (Compl. Wherefore Clause ¶ 3).

I. BACKGROUND The Plaintiff seeks injunctive and declaratory relief; and

a judgment requiring the Defendants to provide notice

A. The Relevant Facts

and a hearing to any future victims of seizures similar to

fees and costs. While the Court notes that the Plaintiff’s CIV. P. 12(b)(6), ... in adjudicating a motion to dismiss

memorandum in opposition to the motion to dismiss states for lack of subject-matter jurisdiction [pursuant to FED. R.

that “the underlying complaint is not exclusively seeking an CIV. P. 12(b)(1) ], a district court may resolve disputed

award of damages under § 1983,” (Pl.'s Mem. in Opp. to factual issues by reference to evidence outside the pleadings,

Mot. to Dismiss at 4), a plaintiff is not permitted to amend including affidavits.” State Employees Bargaining Agent

his complaint by virtue of what is said in a memorandum Coal. v. Rowland, 494 F.3d 71, 77 (2d Cir. 2007) (internal

of law, Uddoh v. United Healthcare, 254 F. Supp. 3d 424, citations omitted). As such, in accordance with the approach

429 (E.D.N.Y. 2017) (“A plaintiff, however, is not permitted taken by other district courts within this Circuit, the Court

to interpose new factual allegations or a new legal theory will apply the stricter standard set under Rule 12(b)(6) while

in opposing a motion to dismiss....” (citing Wright v. Ernst analyzing Defendants' sovereign immunity arguments. See

& Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) ) ). The Tiraco v. New York State Bd. of Elections, 963 F. Supp. 2d

complaint does not explicitly seek damages, and the Court 184, 191 n.6 (E.D.N.Y. 2013) (noting that “[t]his distinction

cannot construe it otherwise. [ ] does not alter the outcome” of the case because “the

court [ ] considered only the pleadings and the relevant

*2 On September 25, 2017, the Defendants filed the instant state and federal law and [drew] all inferences in Plaintiff’s

motion to dismiss the complaint for lack of jurisdiction favor”) (citations omitted); McMillan v. N.Y. State Bd. of

pursuant to Rule 12(b)(1), and for failure to state a claim Elections, No. 10-CV-2502 (JG)(VVP), 2010 WL 4065434,

pursuant to Rule 12(b)(6). at *3 (E.D.N.Y. Oct. 15, 2010) (looking “only to the pleadings

and to state and federal law” to resolve questions regarding

sovereign immunity).

II. DISCUSSION

1. The Rule 12(b)(6) Standard

A. As to the Defendants' Motion to Dismiss Based on

In reviewing a motion to dismiss pursuant to Rule 12(b)(6),

Sovereign Immunity

the Court must accept the factual allegations set forth in the

The Defendants have moved for dismissal based on sovereign

complaint as true and draw all reasonable inferences in favor

immunity pursuant to Rule 12(b)(1).

of the Plaintiff. See Walker v. Schult, 717 F.3d 119, 124 (2d

Cir. 2013); Cleveland v. Caplaw Enters., 448 F.3d 518, 521

As an initial matter, the Court first observes that within

(2d Cir. 2006); Bold Electric, Inc. v. City of New York, 53

the Second Circuit, the question of whether a motion to

F.3d 465, 469 (2d Cir. 1995); Reed v. Garden City Union Free

dismiss made on sovereign immunity grounds should be

School Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y. 2013).

reviewed under Rule 12(b)(1) or under Rule 12(b)(6) remains

unresolved. See Carver v. Nassau Cty. Interim Fin. Auth.,

*3 Under the now well-established Twombly standard, a

730 F.3d 150, 156 (2d Cir. 2013) (“[W]hether the claim of

complaint should be dismissed only if it does not contain

sovereign immunity constitutes a true issue of subject matter

enough allegations of fact to state a claim for relief that is

jurisdiction or is more appropriately viewed as an affirmative

“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

defense is an open question in the Supreme Court and the

544, 570, 127 S. Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007). The

Second Circuit.” (citing Wisc. Dep't of Corr. v. Schacht, 524

Second Circuit has explained that, after Twombly, the Court’s

U.S. 381, 391, 118 S. Ct. 2047, 141 L.Ed. 2d 364 (1998)

inquiry under Rule 12(b)(6) is guided by two principles:

) ); see also Garcia v. Paylock, 13-CV-2868 KAM, 2014

WL 298593, at *2 n.3 (E.D.N.Y. Jan. 28, 2014) (“It is an

open question in the Second Circuit whether the claims of

sovereign immunity should be viewed as raising a question of First, although a court must accept as

subject matter jurisdiction, and thus be evaluated under *339 true all of the allegations contained in

Rule 12(b)(1), or as an affirmative defense analyzed under a complaint, that tenet is inapplicable

Rule 12(b)(6).”). to legal conclusions, and [t]hreadbare

recitals of the elements of a cause of

This “distinction is significant,” because “while [a district action, supported by mere conclusory

court] must accept all factual allegations in a complaint as statements, do not suffice. Second,

claim for relief survives a motion to 1. Claims Against State Administrative Agencies

dismiss and [d]etermining whether a Regardless of the type of relief sought, the Eleventh

complaint states a plausible claim for Amendment bars this Court from assuming jurisdiction over

relief will ... be a context-specific task plaintiffs' claims asserted against the State of New York

that requires the reviewing court to and its agencies. When the state or one of its “arms” is

draw on its judicial experience and the defendant, sovereign immunity bars federal courts from

common sense. entertaining lawsuits against them “regardless of the nature of

the relief sought.” Pennhurst, 465 U.S. at 100.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 1940, a. Application to the Plaintiff’s

173 L.Ed. 2d 868 (2009) ). Claims Against the NYSP

Thus, “[w]hen there are well-pleaded factual allegations, a *4 As the Eleventh Amendment bars all suits against

court should assume their veracity and ... determine whether administrative agencies of a state, the Plaintiff’s claims

they plausibly give rise to an entitlement of relief.” Iqbal, 556 against the NYSP cannot be sustained. Defendant New York

U.S. at 679. State Police is a division in the executive department of

New York—see section 210 of New York’s Executive Law—

and is therefore immune from all claims, both federal and

B. The Eleventh Amendment state. Congress has not overridden states' sovereign immunity

The Eleventh Amendment provides that “[t]he Judicial power respecting constitutional claims brought under 42 U.S.C. §

of the United States shall not be construed to extend to 1983. Will, 491 U.S. at 109. And it is well established that

any suit in law or equity, commenced or prosecuted against “New York State has not waived its sovereign immunity from

one of the United States by Citizens of another State, or Section 1983 claims.” Nolan v. Cuomo, No. 11 CV 5827

by Citizens or Subjects of any Foreign State.” Rowland, (DRH)(AKT), 2013 WL 168674, at *7 (E.D.N.Y. Jan. 16,

494 F.3d at 95 (quoting U.S. CONST. AMEND. XI). The 2013) (citing Trotman v. Palisades Interstate Park Comm'n,

Eleventh Amendment bars federal courts from exercising 557 F.2d 35, 39-40 (2d Cir. 1977) ); see also Mamot v. Bd.

subject matter jurisdiction over claims against states absent of Regents, 367 Fed.Appx. 191, 192 (2d Cir. 2010) (summary

their consent to such a suit or an express statutory waiver of order); Dube v. State Univ. of New York, 900 F.2d 587,

immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 594-95 (2d Cir. 1990) (holding that the Eleventh Amendment

465 U.S. 89, 90-100, 104 S. Ct. 900, 79 L.Ed. 2d 67 (1984); precludes an action under Section 1983 against SUNY, an

see also Huminski v. Corsones, 386 F.3d 116, 133 (2d Cir. integral part of the State of New York). Therefore, the NYSP

2004). Although the plaintiff generally bears the burden is entitled to sovereign immunity on the Plaintiff’s claims.

of proving subject matter jurisdiction, the entity claiming

Eleventh Amendment immunity bears the burden to prove Accordingly, the Defendants' motion to dismiss the Plaintiff’s

such. See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of claims against the NYSP is granted.

Educ., 466 F.3d 232, 237 (2d Cir. 2006).

Section 1983 imposes liability for “conduct which ‘subjects, 2. Claims Against State Officials in Their Official

or causes to be subjected’ the complainant to a deprivation of Capacity

a right secured by the Constitution and laws.” Rizzo v. Goode, A suit for damages against a state official in his or her

423 U.S. 362, 370-71, 96 S. Ct. 598, 46 L.Ed. 2d 561 (1976) official capacity “is deemed to be a suit against the state,

(quoting 42 U.S.C. § 1983). It is well-settled that states are and the official is entitled to invoke the Eleventh Amendment

not “persons” under section 1983 and, therefore, Eleventh immunity belonging to the state.” Ying Jing Gan v. City

Amendment immunity is not abrogated by that statute. See of New York, 996 F.2d 522, 529 (2d Cir. 1993); see also

Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. Will, 491 U.S. at 71; Ford v. Reynolds, 316 F.3d 351, 354

2304, 105 L.Ed. 2d 45 (1989). (2d Cir. 2003). However, “the applicability of the Eleventh

Amendment bar [to suits against individuals in their official

Conn. 2013). Money damages cannot be recovered from state Jersey Educ. Ass'n v. New Jersey, No. 11-5024, 2012 WL

officers sued in their official capacities. See e.g., Will, 491 715284, at *4 (D.N.J. Mar. 5, 2012).

U.S. at 71 (“[A] suit against a state official in his or her official

capacity is not a suit against an official but rather is a suit *5 Furthermore, when a plaintiff seeks prospective relief

against the official’s office.”); Edelman v. Jordan, 415 U.S. against a state official in their official capacity where the

651, 663, 94 S. Ct. 1347, 39 L.Ed. 2d 662 (1974) (“[A] suit plaintiff alleges that a particular statute is unconstitutional,

by private parties seeking to impose a liability which must be “the state officer ... ‘must have some connection with the

paid from public funds in the state treasury is barred by the enforcement of the act’ ” that includes “both a particular

Eleventh Amendment.”); Goonewardena v. New York, 475 F. duty to enforce the statute in question and a demonstrated

Supp. 2d 310, 329 (S.D.N.Y. 2007) (“[S]overeign immunity willingness to exercise that duty.” Kelly v. New York State

also extends to bar claims for monetary damages brought Civil Serv. Comm'n, No. 14 CV 716 VB, 2015 WL 861744,

against state officers sued under section 1983 in their official at *3 (S.D.N.Y. Jan. 26, 2015) (quoting Ex Parte Young, 209

capacities.”). U.S. at 157), aff'd sub nom. Kelly v. New York Civil Serv.

Comm'n, 632 Fed.Appx. 17 (2d Cir. 2016); see also CSX

Similarly, “judgments against state officers declaring that Transp., 306 F.3d at 99 (amenability to suit under Eleventh

they violated federal law in the past” are also not permitted. Amendment requires “both the power and the duty” to take

Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, challenged action).

506 U.S. 139, 146, 113 S. Ct. 684, 121 L.Ed. 2d 605 (1993)

(citing Green v. Mansour, 474 U.S. 64, 73, 106 S. Ct. 423, 88

L.Ed. 2d 371 (1985) ). However, prospective injunctive relief

a. Application to the Plaintiff’s Claims Against

is available against individuals being sued in their official

Governor Cuomo in His Official Capacity

capacities in order to correct an ongoing violation of federal

law. See Edelman, 415 U.S. at 663; Ex Parte Young, 209 As stated above, the complaint does not explicitly seek

U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714 (1908). In this regard, damages. However, even if it did, the Plaintiff would be

through the doctrine of Ex Parte Young, a party may bring unable to seek that relief against Governor Cuomo in his

“a suit for injunctive [or declaratory] relief challenging the official capacity. Ying Jing Gan, 996 F.2d at 529 (“To the

constitutionality of a state official’s actions in enforcing state extent that a state official is sued for damages in his official

law.” CSX Transp., Inc. v. N.Y. State Office of Real Prop. capacity, such a suit is deemed to be a suit against the

Servs., 306 F.3d 87, 98 (2d Cir. 2002) (internal quotation state, and the official is entitled to invoke the Eleventh

marks and alteration omitted); see also Arthur v. Nyquist, 573 Amendment immunity belonging to the state.” (internal

F.2d 134, 138 (2d Cir. 1978). citations omitted) ).

In order to determine whether the Ex parte Young exception As to his requests for declaratory and injunctive relief,

allows the Plaintiff to bring suit against state officials, this the Court finds that the Plaintiff does not explicitly seek

Court must first determine whether the complaint alleges an prospective relief. Instead, he seeks a declaration that the

ongoing violation of federal law and second, whether the Defendants violated federal law in the past, and a return of

Plaintiff seeks relief properly characterized as prospective. his firearms. Courts have held that neither of these types

See Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. of relief are prospective. See Puerto Rico Aqueduct and

635, 645, 122 S. Ct. 1753, 152 L.Ed. 2d 871 (2002). “[T]o Sewer, 506 U.S. at 146 (stating that “judgments against state

successfully avoid the Eleventh Amendment bar, a plaintiff officers declaring that they violated federal law in the past”

must prove that a defendant’s violation of federal law is of are not permitted under the Ex Parte Young doctrine); Dotson

an ongoing nature as opposed to a case ‘in which federal law v. Griesa, 398 F.3d 156, 177 n.16 (2d Cir. 2005) (holding

has been violated at one time or another over a period of time that Second Circuit precedent “preclude[s] a federal court

in the past.’ ” Papasan v. Allain, 478 U.S. 265, 277-78, 106 from ordering affirmative action by either the state or federal

S. Ct. 2932, 92 L.Ed. 2d 209 (1986) (quotation omitted). The government employees in their official capacities”); Nat'l

inquiry for determining whether an “ongoing violation” exists R.R. Passenger Corp. v. McDonald, 978 F. Supp. 2d 215,

is, “does the enforcement of the law amount to a continuous 233 (S.D.N.Y. 2013) (“[C]ourts in this Circuit have [held] ...

violation of plaintiffs constitutional rights or a single act that that the return of property taken by the state is barred by the

relief.” (collecting cases) ), aff'd, 779 F.3d 97 (2d Cir. 2015); unavailing.

Dean v. Abrams, No. 94 CIV. 3704 (LAK), 1995 WL 791966,

at *2 n.5 (S.D.N.Y. Dec. 26, 1995) (“The only exception First, “[a] defendant’s supervisory authority is insufficient

to the Eleventh Amendment’s protection is for ‘prospective in itself to demonstrate liability under § 1983.” LaMagna

injunctive relief,’ but Dean’s demand for ... the return of v. Brown, 474 Fed.Appx. 788, 789 (2d Cir. 2012) (citing

her property does not qualify for this exception.” (collecting Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)

cases) ). ); Richardson, 347 F.3d at 435 (“[M]ere linkage in the

prison chain of command is insufficient to implicate a state

While the Plaintiff does ask for an order declaring that the commissioner of corrections or a prison superintendent in

Defendants must afford any future victims of such seizures a a § 1983 claim.” (citations and internal quotation marks

prompt and fair hearing, the Plaintiff has not plead sufficient omitted) ). Instead, “to establish a defendant’s individual

facts to demonstrate that he has standing to request such relief. liability in a suit brought under § 1983, a plaintiff must show,

See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), inter alia, the defendant’s personal involvement in the alleged

Inc., 528 U.S. 167, 185, 120 S. Ct. 693, 706, 145 L.Ed. 2d 610 constitutional deprivation.” Grullon v. City of New Haven,

(2000) (“[A] plaintiff must demonstrate standing separately 720 F.3d 133, 138 (2d Cir. 2013) (collecting cases). As the

for each form of relief sought.”) Second Circuit has stated, a supervisory defendant’s personal

involvement can be shown by evidence that:

“In seeking prospective relief like an injunction, a plaintiff

must show that he can reasonably expect to encounter the

same injury again in the future—otherwise there is no (1) the defendant participated directly

remedial benefit that he can derive from such judicial decree.” in the alleged constitutional violation,

MacIssac v. Town of Poughkeepsie, 770 F. Supp. 2d 587, 593 (2) the defendant, after being informed

(S.D.N.Y. 2011) (citing City of Los Angeles v. Lyons, 461 U.S. of the violation through a report

95, 103 S. Ct. 1660, 75 L.Ed. 2d 675 (1983) ). A plaintiff or appeal, failed to remedy the

cannot seek injunctive relief merely for past injury. O'Shea, wrong, (3) the defendant created

414 U.S. at 495-96, 94 S. Ct. 669; Deshawn E. by Charlotte E. a policy or custom under which

v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). Instead, “the injury unconstitutional practices occurred, or

alleged must be capable of being redressed through injunctive allowed the continuance of such a

relief ‘at that moment.’ ” Robidoux v. Celani, 987 F.2d 931, policy or custom, (4) the defendant

938 (2d Cir. 1993) (quoting Cty. of Riverside v. McLaughlin, was grossly negligent in supervising

500 U.S. 44, 51, 111 S. Ct. 1661, 114 L.Ed. 2d 49 (1991) ). subordinates who committed the

wrongful acts, or (5) the defendant

*6 Here, the Plaintiff does not allege that his guns will exhibited deliberate indifference to

again be seized in the future. Indeed, as stated above, the the rights of [the plaintiff] by failing

Plaintiff did not state why his guns were seized. He does not to act on information indicating that

plead sufficient facts to demonstrate standing to seek an order unconstitutional acts were occurring.

forcing the state to afford any future victims of seizures a

prompt and fair hearing because he has not alleged that he will

be a victim of such a seizure in the future. Id. at 139 (emphasis omitted) (quoting Colon v. Coughlin, 58

F.3d 865, 873 (2d Cir. 1995) ).

Therefore, the Plaintiff does not seek prospective relief for an

ongoing violation of federal law, and cannot avail himself of Accordingly, “supervisory liability may be imposed when an

the Ex Parte Young doctrine. Governor Cuomo therefore has official has actual or constructive notice of unconstitutional

sovereign immunity with regard to the Plaintiff’s claims. practices and demonstrates ‘gross negligence’ or ‘deliberate

indifference’ by failing to act.” Meriwether v. Coughlin, 879

The Plaintiff contends that he should be permitted to proceed F.2d 1037, 1048 (2d Cir. 1989) (quoting McCann v. Coughlin,

on his theory of supervisory liability until he is able, through 698 F.2d 112, 125 (2d Cir. 1983) ). The Plaintiff does not

discovery, to determine which subordinate officials should

here. Governor Cuomo based on his allegation that the NY

SAFE Act is unconstitutional. The Court notes again that

Second, the Plaintiff does not even allege that the Governor the Plaintiff does not seek an order stating that the NY

supervises the NYSP. Indeed, the complaint does not contain SAFE Act is unconstitutional. He instead alleges that it is

any allegations that are specific to Governor Cuomo. unconstitutional, and seeks an order requiring the Defendants

to afford victims of gun seizures fair hearings.

Furthermore, as to the Plaintiff’s argument that he should

be permitted to maintain suit against Governor Cuomo until In any event, the Plaintiff has not alleged that the Governor

he has been afforded an opportunity to identify subordinate has any duty to enforce the NY SAFE Act. Nor does N.Y.

officials who have personal liability, the Plaintiff does not PENAL LAW § 400, the only specific statute cited by the

meet that “exception” to the supervisory liability rule here. Plaintiff, afford any duty or power to the Governor. To the

The case cited by the Plaintiff for this very proposition extent that the Plaintiff relies on the fact that the NY SAFE

held “[p]ermitting plaintiffs to use discovery as a fishing Act was signed by Governor Cuomo, which the Court notes

expedition undermines the principle that only portions of a that he did not allege, “[t]he well-settled doctrine of absolute

legislative immunity ... bars actions against legislators or

complaint which satisfy a plausibility standard, i.e., more than

governors ... on the basis of their roles in enacting or

possible and less than probable, should unlock the doors of

signing legislation.” Warden v. Pataki, 35 F.Supp.2d 354, 358

discovery.” Dudek v. Nassau Cty. Sheriff’s Dep't, 991 F. Supp.

2d 402, 414 (E.D.N.Y. 2013) (internal citations and quotation (S.D.N.Y. 1999), aff'd sub nom. Chan v. Pataki, 201 F.3d 430

marks omitted). (2d Cir. 1999). Furthermore, “the vast majority of courts ...

have held ... that a state official’s duty to execute the laws is

not enough by itself to make that official a proper party in a

*7 The Dudek court relied on the fact that the complaint

failed to contain a single factual allegation that any of suit challenging a state statute.” Warden, 35 F. Supp. 2d at 359.

the supervisory defendant’s subordinates were personally

involved in the action. Here too, the Plaintiff does not allege Therefore, the Plaintiff has failed to allege that Governor

that Governor Cuomo supervises members of the NYSP, nor Cuomo has the power or duty to take action regarding the NY

does he allege any specific acts by any individual John Doe SAFE Act, and the Governor has sovereign immunity over

officers of the NYSP. Nor would the Plaintiff be permitted those claims.

to avail himself of the exception allowing discovery to

go forward where a litigant raises colorable claims against Accordingly, the Defendants' motion to dismiss the Plaintiff’s

claims against Governor Cuomo is granted.

supervisors because that exception only applies to pro se

litigants. See Davis v. Kelly, 160 F.3d 917, 922 (2d Cir.

1998) (“We therefore hold that when a pro se plaintiff brings

a colorable claim against supervisory personnel, and those III. CONCLUSION

supervisory personnel respond with a dispositive motion

grounded in the plaintiff’s failure to identify the individuals For the reasons stated above, the Defendants' motion to

who were personally involved, under circumstances in which dismiss the complaint based on sovereign immunity is granted

the plaintiff would not be expected to have that knowledge, in its entirety. The Clerk of the Court is respectfully directed

dismissal should not occur without an opportunity for to close the case.

additional discovery.”); Soto v. Brooklyn Corr. Facility, 80

F.3d 34, 34 (2d Cir. 1996) (holding that where a pro se litigant It is SO ORDERED.

mistakenly failed to name the individual corrections officers

who might be liable, the pro se plaintiff would be afforded

All Citations

opportunity to amend his complaint after discovery); Satchell

v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984) (same). Not Reported in Fed. Supp., 2018 WL 1832929

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2007 WL 4145456 dismissed pursuant to Federal Rule of Civil Procedure 4(m)

Only the Westlaw citation is currently available. or otherwise, and with or without prejudice.

United States District Court,

S.D. New York. SO ORDERED.

Lawrence L. FINKELMAN, Plaintiff,

v. REPORT & RECOMMENDATION

NEW YORK STATE POLICE, Unknown Governmental

Entities-John Doe's-Jane Doe's 1-100, Defendants. KEVIN NATHANIEL FOX, United States Magistrate Judge.

No. 06 Civ. 8705(JSR). TO THE HONORABLE JED S. RAKOFF, UNITED

| STATES DISTRICT JUDGE

Nov. 15, 2007.

I. INTRODUCTION

ORDER Plaintiff Lawrence L. Finkelman (“Finkelman”), proceeding

pro se, commenced this action pursuant to 42 U.S.C. §§

JED S. RAKOFF, District Judge. 1983, 1985, and 1986, against New York State Police

and “Unknown Government Entities-John Doe's-Jane Doe's

*1 On August 20, 2007, the Honorable Kevin Nathaniel 1-100” (“defendants”). He contends the defendants conspired

Fox, United States Magistrate Judge, issued a Report to violate his civil rights when, in 2001, without a warrant

and Recommendation in the above-captioned matter or probable cause, they forced him from his vehicle by

recommending that plaintiff's claims against defendant New threatening him with physical harm, arrest, and criminal

York State Police be dismissed but that in all other respects charges, and locked him in their patrol car, thus violating

the defendant's motion to dismiss the complaint be denied. both New York and federal penal laws. Finkelman alleges

Subsequently, on September 17, 2007, defendant New York the conspiracy continued when the defendants twice filed

State Police submitted objections to certain portions of the false documents in New York State courts in the years that

Report and Recommendation. Accordingly, the Court has followed.

reviewed the motion and the underlying record de novo.

Before the Court is the defendants' motion, made pursuant

Having done so, the Court finds itself in complete agreement to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to

with Magistrate Judge Fox's Report and Recommendation dismiss the claim against defendant New York State Police

and hereby adopts its reasoning by reference. Accordingly, the because the Eleventh Amendment bars suit against a state

Court dismisses the claims against the New York State Police, and its agencies. The defendants also contend Finkelman's

with prejudice, but denies the motion to dismiss in all other claims are barred by a three-year statute of limitations and,

respects. The Clerk of the Court is directed to close document as such, permitting him to amend the complaint would be

number 4 in the Court's docket. futile.1 Finkelman opposes the defendants' motion to dismiss

and their contention that the applicable statute of limitations

There is, however, an issue as to the remaining defendants

has expired.

that was only raised now before this Court and that needs to

be addressed by the Magistrate Judge in the first instance,

viz., whether the remaining defendants have been actually

served and, if not, whether belated service at this point II. BACKGROUND

would be untimely and prejudicial. Accordingly, the Court

remands the case to Magistrate Judge Fox to issue a Report *2 Finkelman maintains that some time prior to November

and Recommendation on the issue of whether defendants 28, 2001, the defendants, acting under the color of law,

“Unknown Governmental Entities-John Doe's-Jane Doe's conspired to kidnap and arrest him unlawfully in violation

1-100” have been served in this action and whether, if they of the Fourth, Fifth, Eighth and Fourteenth Amendments.

New York Penal Law § 135.20. According to Finkelman, On October 26, 2006, Finkelman commenced the instant

on November 28, 2001, the defendants lay in wait for action. Thereafter, on November 2, 2006, he amended his

him on Interstate Highway 87 and ordered him out of complaint by removing, as defendants to the action: “State

his car. Finkelman alleges the defendants acted without a of New York;” “John Doe 1-20;” and “Jane Doe 1-20”

warrant or probable cause to believe he had committed an and replacing them with the following defendants: “New

offense. Finkelman recalls the defendants threatened to use York State Police” “Unknown Government Entities-John

deadly force and to arrest and charge him for acts he never Doe's-Jane Doe's 1-100.” Finkelman has also included, in

committed. Finkelman also alleges that “[t]he defendants [,] his amended complaint, a request that the court direct the

upon learning that the plaintiff had the evidence from the [ ] defendants to disclose to him documents which will enable

grand larceny in his possession [,] locked the plaintiff up in him to learn the names of the individual defendants and,

the back [of] their patrol vehicle,” and continued to threaten thereafter, serve them with process. Finkelman has asked,

him while he was in their custody. Finkelman maintains the inter alia, that the court grant him injunctive relief and direct

defendants destroyed the evidence he possessed and asked the defendants to avoid contacting any potential witnesses

him if he was going to accuse them of grand larceny. unless he is present.

Finkelman alleges that, on November 3, 2004, “[d]efendants

knowingly filed a fraudulent and perjurious complaint against

III. DISCUSSION

the plaintiff” to further the goals of their conspiracy and to

prosecute a “malicious, fradulent and perjurious lawsuit.” *3 A court may dismiss an action pursuant to Fed.R.Civ.P.

According to the plaintiff, the defendants engaged in similar 12(b) (1), for lack of subject matter jurisdiction, only if “it

misconduct on October 31, 2005, December 28, 2005, and appears beyond doubt that the plaintiff can prove no set of

twice on December 29, 2005, when they filed documents facts which would entitle him or her to relief.” Raila v. United

related to him, which they knew to be false and perjurious. States, 355 F.3d 118, 119 (2d Cir.2004). In considering a

motion made pursuant to Fed.R.Civ.P. (12)(b)(1), “[a] court

Finkelman alleges the defendants “knowingly failed to must take all facts alleged in the complaint as true and

disclose to the plaintiff, and actively took steps to conceal draw all reasonable inferences in favor of the plaintiff.”

material information and criminal acts known only to the Id. Further, “[o]n a motion invoking sovereign immunity to

Defendants regarding the herein criminal violation of the dismiss for lack of subject matter jurisdiction, the plaintiff

Constitution and laws of the United States and New York,” in bears the burden of proving by a preponderance of evidence

order to “prevent the plaintiff from filing criminal complaints that jurisdiction exists.” Chayoon v. Chao, 355 F.3d 141, 143

and making public the criminal acts [enumerated in the instant (2d Cir.2004) (quoting Garcia v. Akwesasne Hous. Auth., 268

complaint] and corruption.” F.3d 76, 84 (2d Cir.2001).

Finkelman contends the defendants violated his Sixth and “In resolving a motion to dismiss for lack of subject matter

Seventh Amendment rights by using their official positions jurisdiction under Rule 12(b)(1), a district court ... may

to deny him the right to a speedy trial, a jury trial, and refer to evidence outside the pleadings.” See Makarova v.

“compulsory process for obtaining witnesses.” Finkelman United States 201 F.3d 110, 113 (2d Cir.2000). Additionally,

also contends that the defendants had the opportunity and where, as here, the plaintiff is appearing pro se, his or her

authority to stop the civil rights violations he alleges were pleadings “are [to be] held ‘to less stringent standards than

perpetrated, but they declined to do so. According to formal pleadings drafted by lawyers,’ “ Hughes v. Rowe,

Finkelman, all the defendants' acts were committed to shield 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (quoting Haines

them from prosecution and to intimidate him because the v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 [1972] ),

defendants knew he was “a plaintiff and witness in a felony and should be interpreted “to raise the strongest arguments

criminal matter against them. [Therefore, [t]he [d]efendants that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280

[ ] threatened and intimidated [him] to deter him from (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

attending, testifying and initiating a criminal complaint and/ [2d Cir.1994] ). This liberal pleading standard is particularly

or suit in a State Court of the United States and to interfere applicable where a pro se plaintiff alleges a violation of his

with judicial proceedings.”

(2d Cir.2005).

IV. RECOMMENDATION

In their motion to dismiss, the defendants contend that the

Eleventh Amendment bars suit against the state of New York For the reasons set forth above, the defendants' motion to

and its agencies and, as a result, defendant New York State dismiss the complaint should be denied. The claims against

Police is immune from suit. Finkelman responds that states defendant New York State Police should be dismissed.

“must first be in compliance with the Constitution and the

laws of the United States” before the Eleventh Amendment

is to be applied. V. FILING OF OBJECTIONS TO THIS

REPORT AND RECOMMENDATION

Under the Eleventh Amendment, a state or an arm of a state

may not be sued in a federal court absent the state's consent. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of

See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & the Federal Rules of Civil Procedure, the parties have

Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687-88 (1993) ten (10) days from service of the Report to file written

(citations omitted). Defendant New York State Police is an objections. See also Fed.R.Civ.P. 6. Such objections, and

arm of the state, and therefore an action brought against it any responses to objections, shall be filed with the Clerk

is a suit against the state. See, e.g., Morrongiello v. Ashcroft, of Court, with courtesy copies delivered to the chambers of

No. 01 Civ. 2524, 2004 WL 112944, at *2 (S.D.N.Y. Jan. 22, the Honorable Jed S. Rakoff, United States District Judge,

2004). Sections 1983 and 1985 of Title 42 were not intended 500 Pearl St., Room 1340, New York, New York 10007,

to abrogate the states' immunity. See Degrafinreid v. Ricks, and to the chambers of the undersigned, 40 Centre St.,

No. 03 Civ. 6645, 2004 WL 2793168, at *5 (S .D.N.Y. Dec. Room 540, New York, New York 10007. Any requests

6, 2004). The state of New York has not consented to suit for an extension of time for filing objections must be

in federal court under: (a) 42 U.S.C. § 1983, see Le Grand directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS

v. Evan, 702 F.2d 415, 417 (2d Cir.1983); (b) 42 U.S.C. WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER

§ 1985, see Quirk v. City of New York, No. 03 Civ. 0324, OF OBJECTIONS AND WILL PRECLUDE APPELLATE

2003 WL 1872714, at *1 (S.D.N.Y. Apr. 10, 2003); or (c) REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE

42 U.S.C. § 1986, see Gasparik v. Stony Brook University, AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d

No. CV-05-3817, 2007 WL 2026612, at *4 (E.D.N.Y. July 9, Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992);

2007). Wesolek v. Candair Ltd., 838 F .2d 55, 57-59 (2d Cir.1988);

McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983).

*4 Accordingly, Finkelman's claims against defendant

New York State Police should be dismissed. However, the

complaint contains claims against “John Does and Jane Does All Citations

1-100,” which the defendants have not addressed. Therefore,

Not Reported in F.Supp.2d, 2007 WL 4145456

dismissal of the entire complaint is not warranted at this time.

Footnotes

1 The defendants have failed to make a proper motion addressing their statute of limitations defense. Therefore,

the Court has determined not to analyze that defense in this writing.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

1997 WL 599355 amended complaint alleging the specific acts committed by

Only the Westlaw citation is currently available. the individuals named as defendants which Brown claimed

United States District Court, N.D. New York. violated his constitutional rights. Brown filed an amended

complaint on March 21, 1996. In his amended complaint,

Kenneth BROWN, Plaintiff, Brown alleged that defendants violated his rights under the

v. Eighth and Fourteenth Amendments by failing to process

Andrew PETERS, Warden, Watertown Correctional properly his interstate compact paperwork, resulting in Brown

Facility; Joseph Williams, Warden, Lincoln Work– being imprisoned pursuant to a parole hold when in fact

he had never violated the conditions of his parole. For a

Release Center; Francis J. Herman, Senior Parole

more complete statement of Brown's claims, see his amended

Officer Interstate Bureau; T. Stanford, Senior Parole

complaint. Dkt. No. 5.

Officer; Deborah Stewart, Parole Officer; John Doe #

1, Parole Agent, Watertown Correctional Facility; John On August 5, 1996, defendants Peters and Williams made

Doe # 2, Parole Agent, Lincoln Work Release Center; a motion to dismiss for failure to state a claim pursuant to

Susan Bishop, Director of Interstate Compact, South Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On

Carolina; Cecil Magee, Parole Officer, South Carolina; August 19, 1996, defendants Bishop, Magee, Barton, and

Frank Barton, Parole Officer, South Carolina; John McMahan made a motion to dismiss the complaint against

McMahan, Parole Officer, South Carolina, Defendants. them or, in the alternative, for summary judgment. Dkt. No.

20. On October 17, 1996, defendants Herman, Stewart, and

No. Civ.A. 95CV1641RSPDS. Stanford made a motion to dismiss for failure to state a

| claim. Dkt. No 34. On April 17, 1996, Magistrate Judge

Sept. 22, 1997. Scanlon recommended that all defendants' motions to dismiss

be granted and that the complaint be dismissed. Dkt. No. 50.

Attorneys and Law Firms

On June 9, 1997, Brown filed objections to the

Kenneth Brown, State Court Institute–Greene, Waynesburg,

magistrate judge's report-recommendation, having been

PA, plaintiff, pro se.

granted additional time in which to do so. Dkt. No. 52. In

Dennis C. Vacco, New York State Attorney General, The addition, Brown filed on June 9, 1997, a motion for leave to

Capitol Albany, NY, for defendants Peters, Herman Stewart, file a second amended complaint and a copy of his proposed

Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant amended complaint. Dkt. No. 53. I turn first to the last motion

Attorney General, Carl N. Lundberg, Chief Legal Counsel, filed, Brown's motion for leave to amend his complaint a

South Carolina Department of Probation, Columbia, SC, for second time.

defendants Bishop, Magee, Barton, McMahan, and Stanford,

Carl N. Lundberg, of Counsel. Brown seeks to file a second amended complaint “setting

forth in detail the personal involvement of each defendant

and how their acts of commission and omission served to

DECISION AND ORDER deprive plaintiff of Constitutionally secured rights.” Dkt. No.

53. The district court has discretion whether to grant leave

POOLER, J. to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,

131 (2d Cir.1993). In exercising that discretion, the court

*1 The above matter comes to me following a Report– should freely grant leave to amend when justice so requires.

Recommendation by Magistrate Judge Daniel Scanlon, Jr., Fed.R.Civ.P. 15(a). However, the court need not grant leave

duly filed on April 17, 1997. Following ten days from the to amend where it appears that amendment would prove to be

service thereof, the Clerk has sent me the entire file, including unproductive or futile. Ruffolo, 987 F.2d at 131.

any and all objections filed by the parties herein.

Here, Brown moved to amend his complaint to add additional

Plaintiff Kenneth Brown commenced this Section 1983 civil allegations against the named defendants. However, the

rights action on November 17, 1995. On February 12, additional allegations fail to cure the deficiency which

the absence of defendants' personal involvement in a to which specific, written objection has been made.” Brown's

constitutional deprivation. Section 1983 imposes liability objections fail to address directly any of the analysis.

upon an individual only when personal involvement of that Brown's objections state (1) that he has been deprived of

individual subjects a person to deprivation of a federal right. his constitutional rights; (2) that he has stated a cause of

See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. action; (3) that the court wrongly refused to appoint an

2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective attorney for him and wrongly stayed discovery pending the

if it fails to allege personal involvement sufficient to establish outcome of these motions; (4) that he seeks to file an amended

that a supervisor was “directly and personally responsible for complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)

the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward, (6) motion; (6) that he disagrees with the magistrate judge's

814 F.2d 883, 886 (2d Cir.1987). recommendation to grant defendants' motions because the

allegations in his complaint, which he repeats, show that his

*2 Brown's proposed amended complaint alleges in rights were violated; and (7) the text of the Fourteenth and

conclusory fashion that defendants acted “in a grossly Eighth Amendments.

negligent and concerted manner which breached their duties

owed to Plaintiff and is the proximate cause of [the violation Even affording the objections the liberal reading required

of plaintiff's constitutional rights].” Proposed Am. Compl., for pro se pleadings, I find that these objections fail to

at 3. Brown continues in the same vein, stating that state any basis whatsoever, much less a specific one, for

defendants owed duties to plaintiff to carry out their jobs in a the court not to adopt the magistrate judge's rulings. They

professional manner and they failed to carry out those duties simply re-state the relief sought and the facts on which Brown

appropriately. The complaint states that defendants held grounds his complaint and conclude that the magistrate

specific responsibilities, such as checking for outstanding judge's conclusions are wrong. When the parties make only

warrants, which if performed properly should have alerted frivolous, conclusive, or general objections, the court reviews

them to a problem. However, nowhere does the complaint the report-recommendation for clear error. See Camardo v.

set forth allegations that these defendants either participated General Motors Hourly–Rate Employees Pension Plan, 806

directly in any constitutional infraction or that they were even F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider

aware of such an infraction. The proposed amended complaint objections which are frivolous, conclusive, or general and

merely alleges that these defendants failed in performing their constitute a rehashing of the same arguments and positions

supervisory and ministerial functions. “These bare assertions taken in original pleadings); Chambrier v. Leonardo, 1991

do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis, WL 44838, *1 (S.D.N.Y.) (restatement of allegations already

1988 WL 78306, *2 (S.D.N.Y.). before the court and assertion that valid constitutional claim

exists insufficient to form specific objections); Schoolfield

This plaintiff previously has had the opportunity to amend his v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)

complaint for the same reason asserted here, to allege personal (objections stating that magistrate judge's decisions are

involvement on the part of defendants. Brown's first amended wrong and unjust, and restating relief sought and facts

complaint failed to accomplish that task, and it appears that upon which complaint grounded, are conclusory and do not

even if allowed to amend again Brown would be unable to form specific basis for not adopting report-recommendation);

make the requisite allegations with sufficient specificity to Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general

sustain his complaint. Consequently, I find that amendment objection that report does not address violation of petitioner's

would be futile, and I deny Brown's motion for leave to amend constitutional rights is a general plea that report not be

his complaint. adopted and cannot be treated as objection within the meaning

of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.

I turn now to the magistrate judge's report-recommendation denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169

and defendants' motions. The magistrate judge recommends (U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1

that I grant defendants' motions and dismiss the complaint (1997) (when objections fail to address analysis directly, court

as to all defendants. The report-recommendation clearly reviews report-recommendation for clear error); Fed.R.Civ.P.

describes the grounds on which the magistrate judge 72(b), Advisory Comm. Note (when no specific, written

recommends dismissal as to each defendant. Fed.R.Civ.P. objections filed, “court need only satisfy itself that there is

72(b) requires the district judge to make a de novo

recommendation”). Correctional Facility in Watertown, New York. He applied

for an interstate compact because he wanted to return to

*3 Because Brown fails to make specific objections or South Carolina to live with his common law wife, Pamela

provide any basis for his general objections, I review the Reid. During the application process, he was interviewed by

report-recommendation for clear error. After careful review, the facility's parole officer, identified only as defendant John

I conclude that the magistrate judge's report-recommendation Doe # 1. After signing the necessary papers, his application

is well-reasoned and is not clearly erroneous.1 The was forwarded to defendant Andrew Peters, the facility's

magistrate judge employed the proper standard, accurately superintendent, who reviewed, signed and forwarded the

recited the facts, and reasonably applied the law to those facts. papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;

Consequently, I adopt the report-recommendation. Exs. A, B.

On or about January 15, 1992, while his compact was waiting

for review at the Interstate Bureau, plaintiff was approved for

CONCLUSION work release and sent to the Lincoln Work Release Center

in New York City. While at the center, plaintiff spoke to a

Because plaintiff's proposed amendment demonstrates that

parole officer, defendant John Doe # 2, and told him that

amendment would be futile, I deny plaintiff's motion for leave

he was seeking a compact that would return him to South

to amend his complaint. I approve the magistrate judge's

Carolina upon his conditional release. Plaintiff claims the

recommendation and grant defendants' motions to dismiss.

parole officer told him that he would handle the necessary

Plaintiff's complaint is dismissed in its entirety.

paperwork, although the officer had had no experience with

an interstate compact. Amend. Compl. at ¶¶ 3, 4.

IT IS SO ORDERED.

*4 Plaintiff, meanwhile, asked Reid whether any officials

had contacted her in South Carolina regarding his prospective

ORDER and REPORT–RECOMMENDATION residence in that state. Upon discovering no one had contacted

her, plaintiff asked a lawyer he knew, Navron Ponds, to

This matter was referred to the undersigned for report and

inquire as to his compact status. In March, 1992, the

recommendation by the Hon. Rosemary S. Pooler, United

lawyer spoke with defendant Susan Bishop, who is the

States District Judge, by Standing Order dated November

director of the interstate compact program in South Carolina.

12, 1986. Currently before this Court are a number of

Bishop allegedly told Ponds that plaintiff “was disapproved

motions. Defendants Peters and Williams have filed a motion

because there was a discrepancy about approving plaintiff['s]

to dismiss (dkt.13); defendants Bishop, Magee, Barton and

compact.” The “discrepancy” was the fact that plaintiff owed

McMahan have filed a motion for summary judgment, or in

the state of South Carolina eighty-six days of confinement

the alternative to dismiss (dkt.20); and defendants Herman,

from a previous sentence. Plaintiff claims Bishop told Ponds

Stewart and Stanford also have filed a motion to dismiss

to contact defendants Cecil Magee and Frank Barton, who

(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,

worked for the South Carolina Parole Department. Sometime

33, 38). Defendants Bishop, Magee and McMahan have filed

in March, 1992, Ponds made some calls to Barton and Magee.

a motion to stay discovery (dkt.41) and plaintiff has filed a

A verbal agreement was reached, and plaintiff, upon speaking

motion to extend time (dkt.44) in which to file opposition to

with Barton and Magee was told that his compact had been

the latter motion for a stay of discovery.

approved. He also was told that he should report to the South

Carolina Department of Parole upon being released. Amend.

The Court addresses these issues seriatim.

Compl. at ¶¶ 5–7.

Prior to leaving the Lincoln Work Release Center, plaintiff

BACKGROUND processed paperwork related to his interstate compact. His

paperwork was sent by Doe # 2 to defendant Joseph Williams,

Plaintiff's amended complaint, which he has brought pursuant the superintendent of the center. Williams reviewed, signed

to 42 U.S.C. § 1983, alleges the following facts. In and returned the paperwork to plaintiff. On May 1, 1992,

Carolina. Three days later, he entered a South Carolina parole DISCUSSION

office and promptly was arrested because of the eighty-

six days of confinement that he owed the state. Plaintiff's A. Motion to Dismiss by Williams and Peters.

paperwork was given to defendant John McMahan, a parole Williams and Peters have filed a motion to dismiss plaintiff's

officer. Plaintiff claims that McMahan never returned this complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds

paperwork to him. On May 20, 1992, the state of South that it fails to state a claim upon which relief may be

Carolina revoked plaintiff's parole and plaintiff was returned granted. In a Rule 12(b)(6) motion, all factual allegations

to prison to serve the eighty-six days that he owed. When he in the complaint must be taken and construed in plaintiff's

asked McMahan what would happen to his one year of parole favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d

from New York, the officer allegedly told him that his New Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).

York parole would run concurrently with his South Carolina The Court's role is not to assess whether plaintiffs have

parole, and that when he finished his South Carolina parole, raised questions of fact or demonstrated an entitlement

he would not owe any parole whatsoever. Plaintiff served the to a judgment as a matter of law, as in a motion made

eighty-six days he owed and was released on July 31, 1992. pursuant to FED.R.CIV.P. 56 for summary judgment, but

Amend. Compl. at ¶¶ 8–10. rather to determine whether plaintiff's complaint sufficiently

alleges all of the necessary legal elements to state a claim

In February, 1993, plaintiff was arrested on robbery charges under the law. See Christopher v. Laidlaw Transit, Inc.

in South Carolina. The charges ultimately were dropped, 899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.

but he apparently encountered some difficulties regarding New York City Transit Authority, 941 F.2d 119, 124 (2d

this arrest as a result of a parole hold that New York state Cir.1991)). Factual allegations in brief or memoranda may not

had placed upon him. Bishop's office told him that it had be considered. Fonte v. Board of Managers of Continental

nothing to do with his parole hold and that any problem that Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The

he had was between him and the state of New York. He Court now turns to the issues presented.

talked to authorities in Albany, New York regarding the parole

hold, but was not successful in his efforts to have the hold Personal involvement of defendants in alleged constitutional

removed. On September 30, 1993, after had been extradited deprivations is a prerequisite to an award of damages under

to New York as a fugitive from justice, plaintiff was given a § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).

preliminary hearing at Riker's Island, New York. The hearing As superintendents at New York State Correctional facilities,

officer found no probable cause that plaintiff had violated any Williams and Peter may be found personally involved in the

condition of parole. He was released. Amend. Compl. at ¶¶ alleged deprivation of plaintiff's constitutionally protected

11–14; Exs. C–J. rights by a showing that they: (1) directly participated in the

infraction; (2) knew of the infraction, but failed to remedy

*5 Plaintiff claims that he would not have suffered hardships the wrong; (3) created or continued a policy or custom under

if his interstate compact had been handled correctly. He which unconstitutional practices occurred; or (4) were grossly

alleges that defendant Deborah Stewart failed to follow up negligent in managing subordinates who caused unlawful

and see whether plaintiff had arrived in South Carolina. If she conditions or events. Id., (quoting Williams v. Smith, 781

had, he argues, she would have discovered tha

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