McNeil v. Van Houten

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

AARONMCNEIL, 2)

Plaintiff,

v. 3:25-CV-725

(AMN/MJK)

VAN HOUTEN ez. al.,

Defendant.

AaronMcNeil, Plaintiffprose ss—<‘i—s—“‘<a

Mitchell J. Katz, U.S. Magistrate Judge

To the Honorable Anne M. Nardacci, U.S. District Judge:

ORDER and REPORT- RECOMMENDATION

McNeil began this action on June 6, 2025, by filing a Complaint (Dkt. 1) and

moving for leave to proceed in forma pauperis (“FP”). (Dkt. 9). The Clerk sent

Plaintiff's Complaint and //’P application to this Court for review. (Dkts. 1, 9).

I. BACKGROUND

According to McNeil, in October 2024, Lisa Turner intended to withdraw a

restraining order against him. (Complaint, Dkt. 1, at 2). The Complaint never

identifies whether she withdrew the order. See generally U/d.). Five months later,

Defendants Matthew Van Houten, the elected District Attomey of Tompkins

County, and Assistant District Attorney Andrew Kelly “arrested” McNeil for

violating the restraining order and charged him with “attempted homicide-

strangulation.” (/d. at 2). McNeil contends “no victim and no credible evidence

supported the charge.”

During the proceedings, McNeil claims that “Defendants suppressed

exculpatory evidence, coerced witnesses into a false narrative, and initiated a

media campaign to vilify” him. (/d. at 2). Probation Officer, Quentin Kaih, then

“prepared and filed a probation-violation report” based on hearsay. (/d.). Later,

Judge Maura Kennedy-Smith, the presiding Judge in Tompkins County Criminal

Court, approved a “plea agreement containing plainly incorrect factual recitations,

refused to recuse” herself “despite clear bias, and denied” McNeil’s “motions to

dismiss.” (/d. at 2, 3). McNeil alleges that the proceedings terminated in his favor

but then seeks “immediate release” as one of his remedies. (/d. at 3).

McNeil now brings this action under 42. U.S.C. § 1983. He alleges

that Defendants District Attorney Van Houten, A.D.A. Kelly, Probation Officer

Kaih, Judge Kennedy-Smith, Tompkins County Criminal Court Clerk Kimberly H.

Record, Tompkins County Criminal Court Clerk Jennifer Donlan-Fitzgibbon,

Tompkins County, Tompkins County District Attorney’s Office, Tompkins County

Probation Office, Tompkins County Criminal Court, the New York State Office of

Court Administration without prejudice, and John Does 1-10 violated his

constitutional rights.

Il. JEP APPLICATION

McNeil declares in his //’P application that he is unable to pay the filing fee.

(Dkt. 9). After reviewing his application, this Court finds McNeil is

financially eligible for /FP status.

Il. STANDARD OF REVIEW

In addition to determining whether plaintiffs meet the financial criteria to

proceed //'P, courts must also review the sufficiency of the allegations in the

complaint under 28 U.S.C. § 1915. That statute requires a court to dismiss a case—

at any time—f it determines that the action is (1) frivolous or malicious; (2) fails

to state a claim on which relief may be granted; or (3) seeks monetary relief against

a defendant who is immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)-

(iii).

When determining whether an action is frivolous, courts must consider

whether the complaint lacks an arguable basis in law or in fact. See Neiizke v.

Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp.

v. Twombly, 550 U.S. 544 (2007); 28 U.S.C. § 1915. Dismissal of frivolous actions

is appropriate to prevent abuses of court process and to discourage the waste of

judicial resources. Nei/zke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802,

804 (8th Cir. 1974).

To be sure, courts have a duty to show liberality toward pro se litigants and

must use extreme caution when sua sponte dismissing pro se complaints before

adverse parties have been served and had an opportunity to respond. See Fitzgerald

v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding

that a district court may dismiss a frivolous complaint sua sponte even when

plaintiff has paid the filing fee). But courts sfi// have a responsibility to determine

that a claim is not frivolous before permitting a plaintiff to proceed. See id.

DISCUSSION

The Court recommends dismissing:

e Defendants Van Houten, Kelly, Kaih, Kennedy-Smith, Record, and

Donlan-Fitzgibbon with prejudice and without leave to amend;

e Defendants Tompkins County, Tompkins County District Attorney’s

Office, Tompkins County Probation Office, Tompkins County Criminal

Court, and New York State Office of Court Administration without

prejudice and with leave to amend; and

e John Does 1-10 without prejudice and with leave to amend.

A. Abstention doctrines prevent the District Court from weighing in on

this matter.

Federal courts are forbidden from enjoining ongoing state proceedings. See

Gristina v. Merchan, 131 F.4th 82, 86 (2d Cir. 2025) quoting Younger v. Harris,

401 U.S. 37, 43 (1971). There are three circumstances that trigger Younger

abstention: (1) state criminal prosecutions; (2) civil enforcement proceedings; and

(3) civil proceedings that implicate a state’s interest in enforcing the orders and

judgments of its courts. See Sprint Comme’ns, Inc. v. Jacobs, 571 U.S. 69, 72-3

(2013); see also Schorr v. DoPico, 686 Fed. App’x 34, 36 (2d Cir. 2017) (summary

order). “After applying the categorical Sprint approach,” courts “consider three

additional, non-dispositive factors to determine whether abstention is appropriate.”

Lowell v. Vermont Dep t of Child. & Fams., 835 Fed. App’x 637, 639 (2d Cir.

2020) (summary order). The three additional factors are: whether “(1) there is a

pending state proceeding, (2) that implicates an important state interest, and (3) the

state proceeding affords the federal plaintiff an adequate opportunity for judicial

review of his or her federal constitutional claims.” Spargo, 351 F.3d a 75; see also

Falco v. Justices of Matrimonial Parts of Supreme Ct. of Suffolk Cnty., 805 F. 3d

425, 427 (2d Cir. 2015).

Younger abstention should apply to McNeil’s Complaint. Under

“Count 1” McNeil asks the District Court to terminate the proceedings in his favor.

(Complaint, Dkt. 1, at 3). From this and the Complaint as a whole, the Court can

ascertain that the State of New York is prosecuting McNeil in Tompkins County.

See (Complaint, Dkt. 1, at 2). So the state’s prosecution of McNeil triggers

Younger abstention. See Sprint, 571 U.S. at 72.

The non-dispositive factors do not change that outcome. Addressing the first

and third factors, there is a pending state-criminal proceeding which will allow a

judge to adjudicate McNeil’s federal claims. See (Complaint, Dkt. 1, at 2-3).

Taking the second factor, the state has an important interest in adjudicating

attempted homicide cases. (/d.). All told, the categorical approach and the three

additional factors weigh in favor of the District Court applying Younger abstention.

The Complaint also indicates that the state-criminal proceedings may be

over. See (Complaint, Dkt. 1, at 3) (“Judge Kennedy-Smith approved a plea

agreement . . ..).! Even if that is the case, this Court still recommends that the

District Court abstain from hearing this case.

“The Rooker-leldman doctrine bars federal courts from exercising

jurisdiction over claims brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments.”

Walker v. Fam. Ct. Judge Catherine Cholakis, 19-CV-1288(LEK/CFH), 2020 WL

3503158, at *3 (N.D.N.Y. June 29, 2020) (cleaned up). “The Rooker-Feldman

doctrine has four requirements: (1) the plaintiff must have lost in state court; (2)

the loss must have occurred before the district court proceedings commenced; (3)

the plaintiff must complain of injuries caused by a state court judgment; and (4) the

plaintiff must invite district court review and rejection of that judgment.” /d.

(cleaned up).

| The phrase “the proceedings terminated in Plaintiff’s favor” can also be read as McNeil telling

this Court that the state court criminal case is over. This reading would be inconsistent with the

rest of the of the document which indicates McNeil pled guilty.

Rooker-Feldman applies “only after state-court proceedings have ended,”

and the doctrine “does not otherwise override or supplant preclusion doctrine or

augment the circumscribed doctrines that allow federal courts to stay or dismiss

proceedings in deference to state-court actions.” /d. (cleaned up); see also Lance v.

Dennis, 546 U.S. 459, 466, (2006) (“Rooker-Feldman is not simply preclusion by

another name” but “applies only in limited circumstances where a party in effect

seeks to take an appeal of an unfavorable state-court decision to a lower federal

court.”) (internal quotation marks and citation omitted).

Rooker-Feldman bars the District Court from hearing McNeil’s case. If the

plea agreement ended his case, McNeil lost in state court before he filed this

complaint (establishing elements one and two). Next, McNeil claims that

Defendants’ conduct led to his 64-day-wrongful detention, has “significantly

hindered, delayed, and cost him employment,” caused him to endure “severe

emotional distress, damages to personal relationships,” and forced McNeil “to

endure a heinous ongoing stigma of having an attempted homicide charge on his

record.” (Complaint, Dkt. 1, at 3). In simpler terms, McNeil complains of injuries

caused by the state court judgment (establishing element 3). Last, in McNeil’s

relief section, he asks to be released from incarceration. In essence, he is asking the

District Court to review and reverse his guilty plea (establishing element four).

Rocker-Feldman prevents the Court from doing exactly what McNeil asks the

District Court to do. See Cathlin v. City of New York, No. 23-CV-4219 (LTS),

2023 WL 6929187 (S.D.N.Y. Oct. 18, 2023) (“Rooker-Feldman doctrine applies

where a plaintiff seeks relief that invites a federal district court to reject or overturn

a final decision of a state court as to a conviction”). In capsule form, Rooker-

Feldman prevents the District Court from hearing McNeil’s complaint. Moalawi v.

James, 22-CV-6770, 2023 WL 4817618, at *2 (S.D.N.Y. July 27, 2023) (finding

that Rooker-Feldman bars the plaintiff's challenge to state-court conviction under

Section 1983).

B. The District Court should dismiss the claims against Defendants Van

Houten and Kelly because they are immune from suit.

The Court recommends dismissing McNeil’s claims against Van Houten and

Kelly with prejudice and without leave to amend.

“Prosecutors sued under § 1983 enjoy absolute immunity from claims for

damages arising out of prosecutorial duties that are intimately associated with the

judicial phase of the criminal process.” Joyner v. Cty. of Cayuga, No. 5:20-CV-

1904088 (MAD/TWD), 2020 WL 1904088, at *9 (N.D.N.Y. Apr. 17, 2020)

(cleaned up). Prosecutorial immunity from § 1983 liability covers “virtually all

acts, regardless of motivation, associated with the prosecutor’s function as an

advocate.” Anilao v. Spota, 27 F.4th 855, 864 (2d Cir. 2022) (cleaned up).

Naturally, this includes charging defendants, presenting evidence to a grand jury,

and evaluating evidence before trial. Buari v. City of New York, 530 F. Supp. 3d

356, 378 (S.D.N.Y. 2021). Immunity even extends to falsifying evidence, coercing

witnesses, the knowing use of perjured testimony, deliberating withholding

exculpatory information, making false or defamatory statements in judicial

proceedings, and conspiring to present false evidence at a criminal trial. /d.

(collecting cases).

The Court recommends dismissing McNeil’s claims against Van Houten and

Kelly with prejudice and without leave to amend. McNeil alleges that Van Houten

approved of charges without probable cause and withheld exculpatory evidence,

and A.D.A. Kelly fabricated witness statements, manipulated evidence, and

conspired to deprive him of a fair trial. (Complaint, Dkt. 1, at 2).* Nevertheless, a//

the conduct McNeil alleges falls within prosecutor’s function as an advocate. So

Van Houten and Kelly are immune from suit. See Anilao, 27 F.4th at 864

(“absolute immunity extends even to a prosecutor who “conspires to present false

evidence at a criminal trial. The fact that such a conspiracy is certainly not

something that is properly within the role of a prosecutor is immaterial, because

the immunity attaches to his function, not to the manner in which [they] performed

it.”) (cleaned up).

2 McNeil also claims that Van Houten and Kelly arrested him. But this is highly unlikely given

that Van Houten and Kelly are prosecutors and not police officers.

C. The District Court should dismiss McNeil’s claims against Defendant

Kaih because he is also immune from suit.

The Court recommends dismissing McNeil’s claims against Kaih with

prejudice and without leave to amend.

“Probation officers are entitled to immunity in the performance of their

duties.” Detteelis v. Sharbaugh, 919 F.3d 161, 164 (2d Cir. 2019) (cleaned up). But

the type of immunity afforded depends on whether the probation officers’ conduct

was judicial or prosecutorial. /d. “Probation officers are entitled to absolute

immunity from suit in connection with their preparing and furnishing presentence

reports to the court.” /d. (cleaned up). “They are also entitled to absolute

immunity” for “initiating parole revocation proceedings” and “presenting the case

for revocation to hearing officers.” /d. (cleaned up). Probation officers are entitled

to qualified immunity when they perform investigatory duties like filing a violation

report or recommending the issuance of an arrest warrant. /d.

Defendant Kaih is immune from suit. McNeil alleges that Kaih harmed him

by “filing a probation-violation report based solely on uncorroborated hearsay.”

(Complaint, Dkt. 1, at 2). In essence, McNeil is suing Kaih for filing a probation

violation. (/d.). The Court need not decide whether filing a probation violation

entitles Kaih to absolute or qualified immunity. See Detteelis, 919 F.3d at 164-65.

(Here, it could be argued that certain Appellees are entitled to absolute immunity

for prosecuting a violation of probation, . .. But we need not resolve which

10

immunity applies here. . ..””). But he is at least entitled to qualified immunity.

Plaintiff does not allege that Kaih filed the report without probable cause. He only

alleges that Kaih filed a report containing hearsay. But what McNeil misses is that

there is no bar to including hearsay in a probation report. If someone gave Kaih

information that McNeil violated his probation conditions, that is enough to

establish probable cause. See Betts v. Shearman, 751 F.3d 78, 82—83 (2d Cir. 2014)

(holding officer entitled to qualified immunity where “it was objectively

reasonable for the officer to believe that his actions were lawful at the time of the

challenged act’) (cleaned up). And that would entitle Kaih to qualified immunity.

See Malik v. Mackey, 268 Fed. App’x 83, 84 (2d Cir. 2008) (summary order)

(holding state parole officer entitled to qualified immunity in filing parole violation

charges).

D. ‘The District Court should dismiss McNeil’s claims against

Defendants Kennedy-Smith, Record, and Donlan-Fitzgibbon

because they are also immune from McNeil’s lawsuit.

The Court recommends dismissing McNeil’s claims against Judge Kennedy-

Smith with prejudice and without leave to amend. Judges have absolute immunity

for their judicial acts performed in their judicial capacities. See Mireles v. Waco,

502 U.S. 9, 11 (1991); see also Shtrauch v. Dowd, 651 Fed. App’x 72, 73-74 (2d

Cir. 2016) (“Generally, acts arising out of, or related to, individual cases before the

judge are considered judicial in nature”) (cleaned up). “Judicial immunity applies

11

even when the judge is accused of acting maliciously or corruptly.” Coon v.

Merola, 19-CV-394 (DNH/ATB), 2019 WL 1981416, at *3 (N.D.N.Y. Apr. 8,

2019) (cleaned up). “The only two circumstances in which judicial immunity does

not apply is when’” the judge “takes action outside”’ their ““judicial capacity’”” or

“when the judge takes action that, although judicial in nature, is taken ‘in absence

of jurisdiction.’” /d. (quoting Mireles, 502 U.S. at 11-12). Here, McNeil alleges

that Judge Kennedy-Smith approved a flawed plea agreement, refused to correct

clear judicial errors, and violated her oath of office. (Complaint, Dkt. 1, at 2). The

judge also refused to recuse herself and denied McNeil’s motions to dismiss. (/d. at

3). All the conduct McNeil complains of is judicial in nature. See Bliven v. Hunt,

579 F.3d 204, 209 (2d Cir. 2009) (“The factors determining whether an act by a

judge is a judicial one relates to the nature of the act itself, 7.e., whether it is a

function normally performed by a judge. . ..””) (cleaned up). As a result, Judge

Kennedy-Smith is immune from suit, and the District Court should dismiss

McNeil’s claims against her.

The Court also recommends dismissing McNeil’s claims against Defendants

Record and Donlan-Fitzgibbon, with prejudice and without leave to amend,

because they also enjoy immunity.* The immunity afforded to judges also applies

3 The Court is construing McNeil’s complaint as suing Record and Donlan-Fitzgibbon in their

personal capacity.

12

to government officials for their acts that assist a judge in the performance of their

judicial duties. See Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see also

Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999); Oliva v. Heller, 839 F.2d 37,

39-40 (2d Cir. 1988). In the State of New York, a County Clerk’s duties include

those of a state-court clerk. See N.Y. Const. Art. VI, § 6(e); see also N.Y. County

Law § 525(1); Diaz v. Pataki, 368 F. Supp. 2d 265, 271 (S.D.N.Y. Apr. 26, 2005)

(cleaned up) (holding that the Bronx County Clerk’s “‘primary function’ is to

‘serve as clerk of the Supreme Court’ of Bronx County, a state court.). Here,

McNeil alleges that Record and Donlan-Fitzgibbon obstructed his access to the

court by requiring pro se filings to be submitted only by counsel. See (Complaint,

Dkt. 1, at 2). Flatly, Record’s and Donlan-Fitzgibbon’s conduct fall within their

official duties. See Bey v. New York, 11-CV-3296, 2012 WL 4370272, at *7

(E.D.N.Y. Sept. 21, 2012) (holding that court clerks were entitled to “absolute

quasi[-|judicial immunity” in suits alleging they refused to file documents). So

they are immune from suit.

E. The District Court should dismiss McNeil’s claims against Tompkins

County District Attorney’s Office, Tompkins County Probation

Office, Tompkins County Criminal Court, and New York State

Office of Court Administration, because they are immune from

McNeil’s lawsuit.

The Court recommends dismissing the claims against Tompkins County

District Attorney’s Office, Tompkins County Probation Office, Tompkins County

13

Criminal Court, and New York State Office of Court Administration with

prejudice but with leave to amend.*

“State governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity or Congress has abrogated the states’

eleventh amendment immunity.” Williams v. Does, 24-Civ-4794, 2025 WL 713295

at *4 (S.D.N.Y. Jan 30, 2025). This immunity extends to “state agents and state

instrumentalities that are, effectively, arms of the state. /d at *5. For example,

“the New York State Unified Court System is unquestionably an arm of the State

and is entitled to Eleventh Amendment sovereign immunity.” Go/lomp v. Spitzer,

568 F.3d 355, 366 (2d Cir. 2009) (cleaned up). Likewise, District Attorney Offices

are also immune from suit. See Woodward v. Off. of Dist. Atty., 689 F. Supp. 2d

655, 659 (S.D.N.Y. 2010) (holding that district attorney offices are immune from

suit). Importantly, New York has not waived its sovereign immunity. See Williams,

2025 at WL 713295 at *5.

Here, McNeil is suing four entities that are “unquestionably arms of the

state. So Tompkins County District Attorney’s Office, Tompkins County Probation

Office, Tompkins County Criminal Court, and New York State Office of Court

Administration are immune from suit and should be dismissed.

4 Although McNeil sued Tompkins County Criminal Court through Defendants Record and

Donlan-Fitzgibbon, the Court analyzes the two separately for absolute clarity.

14

The Court recommends dismissing these four Defendants without prejudice.

“Whether a dismissal” under “the Eleventh Amendment is jurisdictional or merely

an affirmative defense is an unsettled question in federal jurisprudence, with

significant disagreement and varying outcomes amongst the district and circuit

courts throughout the country.” Mulhern Gas Co. v. Rodriguez, 23-CV-1267

(GTS/CFH), 2024 WL 3992588 at *7 (N.D.N.Y. Aug. 29, 2024). “The

constitutional principle of sovereign immunity poses a bar to federal jurisdiction

over suits against nonconsenting States.”” Karupaiyan v. New York, No. 23-1257-

CV, 2024 WL 2174272 at *2 (2d Cir. May 15, 2024) (summary order) (cleaned

up). “When subject matter jurisdiction is lacking, the district court lacks the power

to adjudicate the merits of the case, and accordingly Article III deprives federal

courts of the power to dismiss the case with prejudice.” /d. (cleaned up). Within

the Second Circuit, “a dismissal for lack of jurisdiction must be without prejudice

rather than with prejudice.” Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 126 (2d

Cir. 2022). “In light of this significant uncertainty” this Court finds “that the most

appropriate course is to dismiss the claims” against these four Defendants “without

prejudice.” Mulhern Gas Co., 2024 WL 3992588 at *8.°

3 Chie anatyals-does aot apoly any other Defendants because McNeil noted that he was suing

the others in their personal capacity.

15

F. The District Court should dismiss McNeil’s claims against Tompkins

County

The Court recommends dismissing the claims against Tompkins County

without prejudice and with leave to amend.

Under § 1983, a municipality is responsible only for its “own illegal acts”

and cannot be held vicariously liable for the constitutional violations of its

employees. Connick v. Thompson, 563 U.S. 51, 60 (2011). A municipality may be

held liable only where an “official municipal policy” causes the constitutional

deprivation. /d. (quoting Monell v. Department of Social Services, 436 U.S. 658,

690 (1978)). “Official municipal policy” includes laws passed by legislators, acts

of policymaking officials, and “practices so persistent and widespread as to

practically have the force of law.” /d. at 61. Accordingly, a plaintiff may satisfy the

policy or custom requirement in one of four ways: (1) “a formal policy officially

endorsed by the municipality;” (2) “actions taken by government officials

responsible for establishing the municipal policies that caused the particular

deprivation in question;” (3) “a practice so consistent and widespread that,

although not expressly authorized, constitutes a custom or usage of which a

supervising [policymaker] must have been aware;” or (4) “a failure by

policymakers to provide adequate training or supervision to subordinates to such

an extent that it amounts to deliberate indifference to the rights of those who come

16

into contact with the municipal employees.” Brandon v. City of New York, 705 F.

Supp. 2d 261, 276-77 (S.D.N.Y. 2010).

Here McNeil alleges that Tompkins County “maintained policies and

customs—deficient training, lack of oversight, and tolerance of misconduct—that

caused Plaintiffs constitutional injuries” (Complaint, Dkt. 1, at 3). At first blush,

this may seem to be enough to satisfy the four method of establishing a Monell

claim. But surely a “threadbare recital” of that element is not enough. See Ashcroft,

556 U.S. at 678. Thus, the Court recommends dismissing Plaintiff claims against

Tompkins County without prejudice and with leave to amend.

G. The District Court should dismiss McNeil’s claims against the John

Does because McNeil failed to state a claim against the 10 Doe

defendants.

Pleadings must contain, among other things, “a short and plain statement of

the claim showing that the pleader is entitled to relief ...” Fed. R. Civ. P. 8(a)(2).

“The purpose of” Rule 8 “is to give fair notice of the claim being asserted so”

adverse parties have “the opportunity to file a responsive answer, prepare an

adequate defense, and determine whether the doctrine of res judicata is applicable.”

Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (cleaned up). The rule also

requires the pleading to include “a short and plain statement of the grounds for the

court’s jurisdiction” and “a demand for the relief sought[.]” Fed. R. Civ. P. 8(a)(1),

(3). “Although no technical form is required, the Federal Rules make clear that

17

each allegation contained in the pleading ‘must be simple, concise, and direct.”

Cole v. Smrtic, No. 24-CV-847, 2024 WL 4870495, at *2 (N.D.N.Y. 2024)

(cleaned up). Allegations “so vague as to fail to give the defendants adequate

notice of the claims against them” are subject to dismissal. Sheehy v. Brown, 335

F. App’x 102, 104 (2d Cir. 2009) (summary order).

Indeed, to survive dismissal for failure to state a claim, a complaint must

contain sufficient factual matter, accepted as true, to state a claim that is “plausible

on its face.” Ashcroft, 556 U.S. at 678 (2009) (cleaned up). “Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements do not

suffice.” Jd. (cleaned up).

Here, McNeil’s complaint doesn’t allege any facts about the John Does. In

fact, the only information McNeil states about the Doe defendants is that they “are

prosecutors, investigators, and court staff whose identifies will be revealed through

discovery.” (Complaint, Dkt. 1, at 2). Surely, this is less than an “unadorned, the-

defendant-unlawfully-harmed-me accusation,” which is insufficient to state a

claim. Ashcroft, 556 U.S. at 678. As a result, the District Court should dismiss

McNeil’s claims against all John Does without prejudice and with leave to amend.

H. Opportunity to Amend

Generally, before courts dismiss a pro se complaint or any part of the

complaint sua sponte, it should afford the plaintiff the opportunity to amend at

18

least once. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

But leave to re-plead may be denied where any amendment would be futile. See id.

Futility is present when the problem with plaintiff's causes of action is substantive

such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000) (citation omitted). Here, the Court recommends dismissing

McNeil’s claims against Defendants Van Houten, Kelly, Kaih, Kennedy-Smith,

Record, and Donlan-Fitzgibbon with prejudice and without leave to amend because

they are all immune from suit, so any amendment would be futile.

IV. CONCLUSION

WHEREFORE, based on the findings above, it is

ORDERED, that Plaintiff’s motion to proceed IFP (Dkt. 9) is GRANTED,‘

and it is further

RECOMMENDED, the District Court dismiss McNeil’s claims against

Van Houten, Kelly, Kaih, Kennedy-Smith, Record, and Donlan-Fitzgibbon WITH

PREJUDICE and WITHOUT LEAVE TO AMEND: and it is further

RECOMMENDED, the District Court dismiss McNeil’s claims against

Tompkins County, Tompkins County District Attorney’s Office, Tompkins County

Probation Office, Tompkins County Criminal Court, and New York State Office of

The court notes that although Plaintiff's IFP application has been granted, Plaintiff will still be

required to pay fees that he may incur in the future regarding this action, including but not

limited to copying and/or witness fees.

19

Court Administration WITHOUT PREJUDICE and WITH LEAVE TO

AMEND; and it is further

RECOMMENDED, the District Court dismiss McNeil’s claims against

John Does 1-10, in accordance with Fed. R. Civ. P. 8, WITHOUT PREJUDICE

and WITH LEAVE TO AMEND;

ORDERED, that the Clerk of the Court serve a copy of this Order and

Report-Recommendation on Plaintiff by regular mail.’

Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have 14

days within which to file written objections to the foregoing report. Such

objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO

THIS REPORT WITHIN 14 DAYS WILL PRECLUDE APPELLATE

REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.

Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.

Digitally signed by

Dated: July 22nd, 2025 Mtchtd 9, ke ee

Re haa haa

Hon. Mitchell J. Katz

U.S. Magistrate Judge

’ 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).

20

2012 WL 4370272

Only the Westlaw citation is currently available.

United States District Court,

E.D. New York.

Malcolm BEY, Francique Bey, Rein Bey, Drizzle Bey, Truth Bey,

and Amicus Curiae Bey, in propia persona, sui juris, Plaintiffs,

Vv.

State of NEW YORK, Nassau County Inc., Nassau County Family Court, Nassau County Child

Protective Services, Edmund Dane, Suzanne Leahey, Elizabeth Mcgrath, rosalie fitzgerald,

john Coppola, Alton Williams, David Sullivan, Kathleen Rice, David Gotimer, Bruce Cohen,

Merry—Lou Ferro, Cheryl Kreger, Warren Freeman, and Jane Doe/John Doe 1-100, Defendants.

No, 11-CV-3296 (JS)(WDW).

Sept. 21, 2012.

Attorneys and Law Firms

Malcolm Bey, Francique Bey, Rein Bey, Drizzle Bey, Truth Bey, Amicus Curiae Bey, Uniondale, NY, pro se.

Ralph Pernick, Esq.. N.Y.S. Attorney General's Office, Mineola, NY, for Defendants N.Y.S. Defendants.

Liora M. Ben-Sorek, Esq., Nassau County Attorney's Office, Mineola, NY, for Defendants County Defendants.

Adam Daniel Levine, Esq., Matthew K. Flanagan, Esq., Catalano, Gallardo & Petropoulous, LLP, Jericho, NY, for Defendant

Bruce Cohen, Esq.

Jessica Zimmerman, Esq., Marian C. Rice, Esq., L'Abbate, Balkan, Colavita & Contini LLP, Garden City, NY, for Defendant

Cheryl Kreger, Esq.

MEMORANDUM & ORDER

SEYBERT, District Judge.

*1 Presently pending before the Court are the following motions: (1) Plaintiff Malcolm Bey's (“Mr.Bey”) motions to “set

aside and vacate” this Court's Order dated July 28, 2011 (Docket Entries 19, 27); (2) Mr. Bey's motion for a default judgment

(Docket Entry 39); (3) a motion to dismiss the claims against Defendants State of New York, Nassau County Family Court,

Judge Edmund Dane, Judge David Sullivan, Rosalie Fitzgerald, and John Coppola (the “State Defendants”) (Docket Entry

25); (4) a motion to dismiss the claims against Bruce Cohen (Docket Entry 29): and (5) motions to dismiss the claims against

Cheryl Kreger (Docket Entries 18, 32). | For the following reasons, Mr. Bey's motions to vacate and for a default judgment

are DENIED and the motions to dismiss are GRANTED (with the exception of Defendant Kreger's letter-motion at Docket

Entry 18, which is DENIED AS MOOT).

BACKGROUND

The Plaintiffs in this action are Mr. Bey; his wife, Francique Bey (“Mrs.Bey”), and their minor children, Rein Bey, Drizzle

Bey, Truth Bey, and Amicus Curiae Bey (the “Bey Children”). Mr. Bey commenced this action pro se, on behalf of himself, his

wife, and his children against Nassau County, Inc. [sic], Nassau County Child Protective Services (“CPS”), Suzanne Leahey,

Elizabeth McGrath, Alton Williams, Nassau County District Attorney Kathleen Rice, David Gotimer, Merry—Lou Ferro, and

Warren Freeman (collectively, the “County Defendants”), the State Defendants, Mr. Cohen, and Ms. Kreger arising out of

petitions for child neglect that were filed in Nassau County Family Court in 2009 and 2010. The Court will briefly summarize

the facts as stated in the Complaint-which are presumed to be true for the purposes of this Memorandum and Order-that are

relevant to the pending motions.

On or around June 4, 2009, the Bey Children were questioned at school by CPS regarding suspected child abuse occurring in

the Bey home. (Compl.4j 26.) The Bey Children were later taken to the police station for further questioning. (Compl.4j 26.) Mrs.

Bey was arrested, and the Bey Children returned home with their father. (Compl. 26.) The following day, however, the Bey

Children were removed from the home and placed in foster care (Compl.{j 27, 31), and on or around June 9, 2009 petitions for

neglect were filed with the Family Court against Mr. and Mrs. Bey. (Compl.{] 31).

Shortly thereafter, CPS inspected the Bey home and, after finding it habitable for the Bey Children, returned them to their

father. (Compl.{] 32.) A temporary restraining order was issued against Mrs. Bey, however, and she was only allowed supervised

visitation with her children. (Compl.§] 32.) She was ordered to take parenting and anger management classes. (Compl.§] 34.)

During this time, Mr. Bey “lost work” because he could not afford daycare, and he and his family were eventually evicted from

their home. (Compl.{] 35.) In December 2009, the neglect petition against Mr. Bey was withdrawn. (Compl.{] 36.)

*2 In April 2010, a new neglect petition was filed and a temporary restraining order issued against Mr. Bey. (Compl.{] 37.)

During the next few months, the Bey Children were repeatedly questioned by CPS at school and visited by CPS twice a month

at home. (Compl.4/ 39.) On June 7, 2010, Mr. Bey attempted to file an “objection and counterclaim” in Family Court, but

Defendant Coppola, the Family Court's Deputy Chief Clerk, refused to file it. (Compl.§] 40.) Mr. Bey was able to successfully

file it, however, a few days later. (Compl.§) 41.)

Mr. Bey returned to Family Court several times during the next few months for appearances before Judge Dane related to the

neglect petition. (Compl.4j 42.) > The proceedings were repeatedly adjourned, and Mr. Bey eventually told Judge Dane that he

would not be returning to court. (Compl.{] 42.) Judge Dane warned him that failure to appear would result in a warrant being

issued for his arrest. (Compl. 42.)

On October 19, 2010, Mr. Bey went to the Family Court to file papers and bumped into his court-appointed attorney, Mr. Cohen,

leaving Judge Dane's chambers. (Comp!.{] 44.) Mr. Cohen advised him that he had missed a court appearance that morning

before Judge Dane and that it had been rescheduled for 2:00PM. (Compl.§] 44.) When Mr. Bey returned that afternoon, however,

he was arrested for failing to appear that morning and incarcerated. (Compl.§ 44.)

In January 2011, Judge Dane extended the temporary restraining order issued against Mr. Bey and ordered that he be mentally

evaluated. (Compl. 45.) Mr. Bey returned to court on March 15, 2011 for trial. CPS asked Mr. Bey to turn custody of the

Bey Children over to CPS for one year, but Mr. Bey refused and his trial was adjourned to April 29, 2011. (Compl. 46.48.)

Around the same time, Mr. Bey requested copies of “everything in the court file.” (Compl.§ 47.) Defendants Fitzgerald, the

Family Court's Chief Clerk, and Coppola gave him some documents but not others. (Compl.§/ 47.) Mr. Bey returned (o court on

April 29 and was asked to turn over custody of his children to CPS for six months, but he again refused. (Compl. 49.) His trial

was adjourned to May 13, 2011. (Compl.{/ 49.) On that date, he was again asked to give CPS custody of his children. □□□□□□□

50.) This time, Ms. Kreger, the Bey Children's appointed law guardian, “attempt{ed] to coerce” him to agree to it, but he again

refused. (Compl.{] 50.) The trial was rescheduled to June 8, 2011 (Compl.§ 51), and on June 15, 2011, Ms. Kreger spoke with

the Bey Children at school about the alleged neglect (Compl.4] 52).

Mr. Bey commenced this action on July 8, 2011, asserting claims for, infer alia, violations of the Constitution (e.g., due

process and unreasonable search and seizure), various criminal statutes (e.g., genocide and kidnapping), international treaties

and provisions of the United Nations' Charter, as well as a claim under the Alien Tort Claims Act and claims for “breech [sic] of

trust and fiduciary duty,” for “use of statutes[,] ordinances, rules and policies of the corporate state of New York[,] not a rule of

law against indigenous man,” and fraud. He is seeking monetary, declaratory, and injunctive relief. Mr. Bey simultaneously filed

an application for a temporary restraining order and preliminary injunction which was denied by this Court on July 13, 2011. □

*3 On July 28, 2011, this Court entered an Order that: (1) reminded Plaintiffs that pursuant to Rule 4(m) of the Federal Rules

of Civil Procedure they had to serve process on Defendants by November 7, 2011 or their Complaint would be dismissed; (2)

advised Plaintiffs of their duty to keep the Court informed of any change of address; and (3) warned Plaintiffs that the claims

brought on behalf of the Bey Children would be dismissed without prejudice unless counsel entered a notice of appearance on

their behalf within thirty days. (Docket Entry 7.) No counsel has filed a notice of appearance on behalf of the Bey Children

to date.

Presently pending before the Court are the following: (1) Mr. Bey's motions to vacate the July 28, 2011 Order, (2) motions to

dismiss filed on behalf of the State Defendants, Mr. Cohen, and Ms. Kreger, and (3) Mr. Bey's motion for a default judgment

against all Defendants. * Plaintiffs have not opposed the motions to dismiss.

DISCUSSION

Before discussing the merits of the pending motions, the Court must briefly address a threshold issue. Pursuant to Rule |1(a) of

ihe Federal Rules of Civil Procedure, “[e]very pleading, written motion, and other paper shall be signed by at least one attorney

ofrecord ... or, by a party personally if the party is unrepresented.” Since a non-attorney, pro se party may not represent another's

interests, see Jannaccone v. Law, 142 F.3d 553, 558 (2d Cir.1998), every pro se plaintiff must sign a copy of the operative

complaint in order to be a party to the action, see Lynch v. DeMarco, No. 11-CV—2602, 2011 WL 3418390, at *2 □□□□□□□□□

July 29, 2011). Here, only Mr. Bey signed the Complaint; therefore, he is the only proper plaintiff in this action. If the Court

does not receive a copy of the Complaint signed by Mrs. Bey within thirty (30) days of the date of this Memorandum and Order,

all of her claims will be dismissed.

I. Motion to Set Aside and Vacate

On September 19, 2011, Mr. Bey filed a motion requesting that the Court “take mandatory judicial notice that the order dated

July 28, 201 0[sic], signed by Judge Joanna Seybert is inconsistent with Stare decisis [sic] Supreme Court Ruling [sic] □□□□□□□□□□

v. Parma Central School District, 550 U.S. 516 (2007)” and “set aside and vacate [this] void order.” (Docket Entry 19.) Mr.

Bey filed a similar (albeit less clear) motion to “take mandatory judicial notice” and “set aside and vacate” the July 28, 2011

Order on October 31, 2011. (Docket Entry 27.) These motions are denied for three reasons.

First, to the extent that Mr. Bey is seeking to vacate a “final judgment, order, or proceeding” pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure, his motion is premature as the July 28, 2011 Order is not a “final” order for the purposes

of Rule 60(b). See Byrne v. Liquid Asphalt Sys., Inc., 250 F.Supp.2d 84, 87 (E.D.N.Y.2003) (“Courts have held that a final

judgment is needed to support a Rule 60(b) motion.” (citation amitted)); Wanamaker v. Columbian Rope Co,, 907 F.Supp. 522,

526-27 (N.D.N . Y.1995) (finding that an order “dismissing some but not all of the defendants, and dismissing some but not all

of plaintiff's claims, was interlocutory and thus not ‘final’ for the purposes of Rule 60(b)”).

*4 Second, to the extent that Mr. Bey's motion is more properly construed as one for reconsideration under Local Civil Rule

6.3, his motion is time-barred. Local Civil Rule 6.3 requires motions for reconsideration to “be served within fourteen {| 4) days

after the entry of the Court's determination of the original motion.” Here, Mr. Bey waited almost two months after the Court

issued its Order to file his first motion to vacate and another six weeks to file his second motion to vacate. Thus, both motions

are time-barred and are, accordingly, DENIED.

Finally, Mr. Bey's argument in support of reconsideration is without merit. Mr. Bey argues that he and his wife may represent

the interests of their infant children pro se. However, while a parent may bring a lawsuit on behalf of an infant child, it is

well established that the parent cannot do so pro se. See Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61

(2d Cir.1990) (holding that a father was not allowed to bring suit on behalf of his minor daughter without representation by

counsel); Berrios v. N.¥.C. Hous. Auth., 564 F.3d 130, 133 (2d Cir.2009) (“The fact that a minor or incompetent person must be

represented by a next friend, guardian ad litem, or other fiduciary does not alter the principle ... that a non-attorney is not allowed

to represent another individual in federal court litigation without the assistance of counsel.”). The Court warned Plaintiffs that

the claims brought on behalf of the Bey Children would be dismissed unless counsel filed a notice of appearance by August

27, 2011. More than a year has passed and no lawyer has appeared on behalf of the Bey Children. Accordingly, their claims

are DISMISSED without prejudice.

Il. Motion for Default Judgment

Also pending is Mr. Bey's motion for the entry of default and a default judgment against all Defendants. A party is entitled to

an entry of default when the party against whom judgment is sought “has failed to plead or otherwise defend.” FED. R. CIV. P.

55(a). In the present case, counsel for Defendants either filed a motion to dismiss or an answer on behalf of every Defendant

(see Docket Entries 25, 29, 32, 34), and the Clerk of the Court noted this on December 7, 2011 when he refused to enter a

certificate of default against Defendants (Docket Entry 44). Thus, there is no basis for entering a default judgment in this case,

and Mr. Bey's motion is DENIED.

III. Motions to Dismiss

There are three motions to dismiss pending: one filed by the State Defendants, one filed by Cheryl Kreger, and one filed by

Bruce Cohen. The Court will first discuss the applicable standard of review before turning to the merits of the pending motions.

A. Standard of Review under Rule 12(b)(6)

In deciding Rule 12(b)(6) motions to dismiss, the Court applies a “plausibility standard,” which is guided by “[t]wo working

principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d

Cir.2009). First, although the Court must accept all of a complaint's allegations as true, this “tenet” is “inapplicable to legal

conclusions:” thus, “[t|hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do

not suffice.” /Jarris, 572 F.3d at 72 (alteration in original) (quoting /gha/, $56 U.S. at 678) (internal quotation marks omitted).

Second, only complaints that state a “plausible claim for relief” survive a motion to dismiss. /d. (internal quotation marks and

citation omitted). Determining whether a complaint does so is “a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” /d. (internal quotation marks and citation omitted). While pro se plaintiffs enjoy

a somewhat more liberal pleading standard, see Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)

pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.”) (internal quotation marks and citation omitted), they must still comport with the procedural and substantive rules of

law. Colo, Capital v. Owens, 227 F.R.D. 181, 186 (E.D.N.Y.2005).

B. The State Defendants' Motion to Dismiss

*5 For the following reasons, the Court grants the State Defendants' motion to dismiss.

1. Claims against New York State and the Nassau County Family Court

All of Mr. and Mrs. Bey's claims against the State of New York and the Nassau County Family Court are barred by sovereign

immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). “The

Eleventh Amendment to the Constitution bars suits against a state in federal court unless that state has consented to the litigation

or Congress has permissibly enacted legislation specifically overriding the state's immunity.” Russell v. Dunston, 896 F.2d 664,

667 (2d Cir.1990) (citations omitted); see also Bd. of Trustees af Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148

L.Ed.2d 866 (2001). This bar precludes suits against states for both monetary and equitable relief. See kdelman v. Jordan, 415

U.S. 651, 667-69, 94 §.Ct. 1347, 39 L.Ed.2d 662 (1974); Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 72 L.Ed.2d 694

(1982); see also Atl. Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir.1993). Therefore, all claims against the State of

New York must be dismissed with prejudice.

The Nassau County Family Court is also immune from suit under the Eleventh Amendment because it is an arm of the State

of New York. Madden v. Vt. Sup.Ct., 8 F. App'x 128, 129 (2d Cir.2001) (finding that claims against the Vermont Supreme

Court were barred by the Eleventh Amendment); Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir.2009) (finding that the New

York state Unified Court System, of which a county court is a part, is an “arm of the State,” and therefore entitled to Eleventh

Amendment immunity); Manko v. Steinhardt, No. 11-—CV—5430, 2012 WL 213715, at *3 (E.D.N_Y. Jan. 24, 2012) (dismissing

claim against the Kings County Supreme Court of the State af New York Clerk's Office because it was barred by Eleventh

Amendment immunity as an arm of the State of New York). Accordingly, the claims against the Nassau County Family Court

must also be dismissed with prejudice.

2. Claims against Judge Dane and Judge Sullivan

The claims for monetary relief against Judge Dane and Judge Sullivan must be dismissed because “[i]t is well settled that judges

are absolutely immune from suit for any actions taken within the scope of their judicial responsibilities or within his or her

jurisdiction,” Miller v. Cnty. of Nassau, 467 F.Supp.2d 308, 312 (E.D.N.Y.2006) (citing Mireles v. Waco, 502 U.S. 9, 11-12,

112 S.Ct, 286, 116 L.Ed.2d 9 (1991); Maestri v. Jutkof sky, 860 F.2d 50, 52-53 (2d Cir,1988)), and that such “immunity is not

overcome by allegations of bad faith or malice,” Mireles, 502 U.S. at 11 (citation omitted); see also Pierson v. Ray, 386 U.S.

547, 554, 87 $.Ct. 1213, 18 L.Ed.2d 288 (1967) (“[L]mmunity applies even when the judge is accused of acting maliciously

and corruptly.”). Here, as all of the claims against Judge Dane and Judge Sullivan arise solely out of actions they allegedly

took from the bench while presiding over various proceedings involving Mr. and Mrs. Bey, their alleged wrongful conduct falls

squarely within the scope of absolute judicial immunity. Accordingly, all of Mr. and Mrs. Bey's claims for monetary relief are

dismissed with prejudice.

*6 Mr. and Mrs. Bey are also seeking declaratory and injunctive relief, which do not fall within the ambit of judicial immunity.

These claims, however, fail as a matter of law. First, Mr. and Mrs. Bey's claims for injunctive relief under Section 1983 are

barred because “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. §

1983: see also Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir.1987). Further, to the extent that Mrs. Bey's constitutional claims

arise out of the ongoing Family Court proceedings, they are barred either by the Younger abstention doctrine, see Diamond “D”

Const. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir.2002) (“Younger generally requires federal courts to abstain from taking

jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings.” (citing Younger v.

Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 27 L.Ed.2d 669) (1971)); Donkor v. N.¥.C. Human Res. Admin. Special Servs. for

Children, 673 F.Supp. 1221, 1224-27 (S.D.N.Y.1987), or the Rooker—Feldman doctrine, ° see Phifer v. City of N.Y, 289 F.3d

49_ 57 (2d Cir.2002) (“This court may not review the family court's determinations regarding custody, neglect and visitation”

if “those issues were decided by the family court after providing [the plaintiff] with a full and fair opportunity to litigate those

issues’).

Second, Mr. and Mrs. Bey's claim for breach of the public's trust is not a cognizable cause of action. See Brady v. Lynes, No.

05-CV—6540, 2008 WL 2276518, at *6 (S.D.N_Y. June 2, 2008).

Third, their claim under the Alien Tort Claims Act fails because they are not “aliens” within the meaning of the statute. See

Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002) (defining “alien” in the context of the Alien Tort Claims Act as a “foreign born

person who has not qualified as a citizen of the country” (internal quotation marks and citation omitted)). Mr. and Mrs. Bey

assert that they are “aliens” because they have declared their independence from the United States (see Mr, Bey's Aff. in Support

of Prelim. Inj. 4] 4 (“Indigenous Affiant declares independence from the USA and all sub-corporations thereof, and heretofore,

herein and hereafter claims absolute power, authority and control over himself, without limitation, and herein states, for the

record, that he is a free, sovereign indigenous political power holder ....); see also Compl. at 1 (Mr. Bey describing himself

as a “Free Indigenous Sovereign Political Power Holder’); id. at 42 (requesting a “Declaratory Judgment verifying the lawful

indigenous status of The Bey Family”)); however, such arguments have been uniformly rejected by courts in this Circuit and

others, see, e.g., United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir.1993) (‘The defendant in this case apparently holds a

sincere belief that he is a citizen of the mythical ‘Indiana State Republic’ and for that reason is an alien beyond the jurisdictional

reach of the federal courts. This belief is, of course, incorrect.”); Duwenhoegger v. King, No. 10O-CV—3965, 2012 WL 1516865,

at *14 (D.Minn. Feb. 13, 2012) (“[A]ny argument by plaintiff that he is not subject to the laws of Minnesota or the United

States because he is a “Sovereign Citizen” is frivolous.” (collecting cases)); □□ & J Marshall & Iisley Bank v. Glavin, No. □□□

CV-0616, 2011 WL 322663, at *1 (W.D.Wis. Jan. 31, 2011) (“This ‘sovereign citizen’ argument has been rejected repeatedly

by courts.”); United States v. Lumumba, 741 F.2d 12, 14-15 (2d Cir .1984) (rejecting criminal defendant's argument that he

is immune from prosecution due to his “proclaimed status” as “Vice President and Minister of Justice” of the “independent

state” of “the Republic of New Afrika”—a self-created “Nation of Afrikans born in North America as a consequence of ...

(alteration in original)).

*7 Fourth, any of Mr. and Mrs. Bey's claims arising under Title 18 of the United States Code necessarily fail because there

is no private right of action under criminal statutes, see, e.g., Sanchez v. Dankert, No. OO-CV—1143, 2002 WL 529503, at □□□□

11 (S.D .N-Y, Feb. 22, 2002) (collecting cases), and there is similarly no private right of action under international treaties or

provisions of the United Nation's Charter, see, e.g., id. at *11; United States v. De La Pava, 268 F.3d 157, 164 (2d Cir.2001)

is a strong presumption against inferring individual rights from international treaties.”); Garza v. Lappin, 253 F.3d

918, 924 (7th Cir.2001) (“[A]s a general rule, international agreements, even those benefitting private parties, do not create

private rights enforceable in domestic courts.”); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES.,,.,, § 907 cmt. a. (“International agreements ... generally do not create private rights or provide for a private

cause of action in domestic courts....”); Joyner—El v. Giammarella, No. 09-CV—3731, 2010 WL 1685957, at *3 n. 4 (S.D.NLY.

Apr. 15, 2010) (finding that the United Nations' Universal Declaration of Human Rights and Declaration on the Rights of

Indigenous Peoples do not create federal causes of action (citing Sosa v. Alvarez—Machain, 542 U.S. 692, 734, 124 □□□□□ 2739,

159 L.Ed.2d 718 (2004))).

Finally, Mr. and Mrs. Bey's claim that “any Laws|,] statutes, ordinances and rules made since 1867 are unconstitutional” because

Congress “ccased to cxist as a lawful deliberative body” after the South seceded from the Union during the Civil War is frivolous

and entirely without merit.

Accordingly, all claims against Judge Sullivan and Judge Dane are hereby dismissed with prejudice. q

3. Claims against Defendants Fitzgerald and Coppola

Defendants Fitzgerald and Coppola are also entitled to immunity because it is well established that “the clerk of the court and

deputy clerks are shielded by an absolute quasijudicial immunity, particularly when they “perform tasks that are an integral part

of the judicial process.” “ McGann v. Lange, No. 96-CV-0859, 1996 WL 586798, at *2 (E.D.N.Y. Oct. 10, 1996) (quoting

Mullis v. U.S. Bankr-Ct., 828 F.2d 1385, 1390 (9th Cir.1987)); see also Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir.1997)

(finding that the “court's inherent power to control its docket is part of its function of resolving disputes between parties” and

is thus “a function for which judges and their supporting staff are afforded absolute immunity”). In this case, Mr. and Mrs.

Bey allege that Defendant Coppola refused to file Mr. Bey's “objection and counter claim” (Compl.{| 40) and that Coppola and

Fitzgerald did not provide him with a copy of the entire court file upon request (Comp! .{/ 47). Courts have found similar actions

by court clerks to be shielded by absolute quasi-judicial immunity. See, e.g., Rodriguez, 116 F.3d at 66 (finding that clerks

were entitled to quasi-judicial immunity for, infer alia, refusing an inmate's request for records on appeal); Pukilin v. Gonzalez,

No. 07-CV—0412, 2007 WL 1063353, at *2 (E.D.N.Y. Apr. 5, 2007) (finding that absolute judicial immunity extends to “the

Clerk's Office['s] activities of filing and docketing legal documents”); McKnight v. Middleton, 699 F.Supp.2d 507, 525-26

(E.D.N.Y.2010) (granting immunity to Family Court clerk for claims arising out of his failure to process the plaintiff's motions);

Mullis, 828 F.2d at 1390 (finding that clerk was entitled to quasi-judicial immunity for, infer alia, refusing to file a document

with the court); Stewart. Minnick, 409 F.2d 826, 826 (9th Cir. 1969) (holding that quasi-judicial immunity shielded court clerk

from suit arising out of his refusal to provide litigant with a portion of the trial transcript).

*8 Accordingly, and for the reasons discussed above, all claims against Defendants Fitzgerald and Coppola are dismissed.

C. Defendant Cohen's Motion to Dismiss

The only allegations in the Complaint against Defendant Cohen, who according to the Complaint was Mr. and Mrs. Bey's

court-appointed attorney (Compl. 19), are that on October 19, 2010, he advised Mr. Bey that he missed a court appearance

and directed him to return to court at 2:00PM (Compl. 44). Upon Mr. Bey's return to court later that day, he was arrested.

(Compl.4 44 .) Defendant Cohen argues that the claims against him must be dismissed because: (1) the Court lacks subject

matter jurisdiction, (2) he was never properly served, and (3) the Complaint fails to state a claim.

The Court finds Defendant Cohen's jurisdictional arguments to be without merit as (1) the Complaint asserts claims for violations

of the United States Constitution so this Court has subject matter jurisdiction, see 28 U.S.C. § 1331, and (2) allegations of

improper service, without a sworn affidavit, are insufficient to establish improper service, see United States v. Riser, No, 10—

CV-4550, 2011 WL 1004566, at *3 (E.D.N_Y. Mar. 16, 2011).

However, the Court finds that Mr. and Mrs. Bey have failed to state a cognizable claim for relief against Defendant Cohen.

Their claims arising under Section 1983 fail because Defendant Cohen is not a state actor. See Browdy v. Karpe, 131 F. App'x

751, 753 (2d Cir.2005) (“[CJourt-appointed attorneys “performing a lawyer's traditional functions as counsel’ to a defendant do

not act ‘under color of state law’ and, therefore, are not subject to suit under 42 U.S.C. § 1983.” (quoting Rodriguez, 116 F.3d

at 65—66)). And to the extent that Mr. and Mrs. Bey attempt to cure this defect by conclusorily alleging that Defendant Cohen

conspired with state officials, “[a] merely conclusory allegation that a private [party] acted in concert with a state actor does

not suffice to state a § 1983 claim against [a] private [party].” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir.2002)

(citation omitted); accord Browdy, 131 F. App'x at 753.

Accordingly, all constitutional claims (and for the reasons discussed above, all other claims) against Defendant Cohen must

be dismissed.

D, Defendant Kreger's Motion to Dismiss

Mr. and Mrs. Bey's claims against Defendant Kreger arise out of her appointment as the Bey Children's law guardian. Defendant

Kreger argues that the claims asserted against her must be dismissed because: (1) she is protected by quasijudicial immunity;

(2) Mr. and Mrs. Bey lack standing to assert claims against her; (3) Mr. and Mrs. Bey lack privity with her; (4) the claims are

barred by the Rooker—Feldman doctrine; (5) the Complaint does not contain a short and concise statement of Plaintiffs' claims

in violation of Rule 8 of the Federal Rules of Civil Procedure; and (6) the Complaint fails to state a claim upon which relief

can be granted. Because the Court finds that Defendant Kreger is protected by quasi-judicial immunity, it will not address her

other arguments.

*9 Courts in New York have consistently held that law guardians are entitled to absolute quasi-judicial immunity for actions

taken within the scope of their appointment. See Yapi v. Kondratveva, 340 F. App'x 683, 685 (2d Cir.2009); Dowlah v. Dowlah,

No. 09-CV—2020, 2010 WL 889292, at *7 (E.D.N.Y. Mar. 10, 2010) (collecting cases); see also Blunit v. O'Connor, 291

A.D.2d 106, 116-119, 737 N.Y.S.2d 471 (4th Dep't 2002) (“[M] ost courts that have considered suits by disgruntled parents

against attorneys appointed by courts to protect children in custody disputes have granted, on public policy grounds, absolute

quasijudicial immunity to the attorneys for actions taken within the scope of their appointments.” (collecting cases)).

Because all of the claims against Defendant Kreger arise out of activities taken within the scope of her appointment as the Bey

Children's legal guardian (7.e., participating in proceedings in Family Court (Comp.‘] 50) and interviewing the Bey Children

about their parents (Compl.{] 53)), her actions are protected by quasi-judicial immunity. Therefore, for this reason and the reasons

discussed above, the Court GRANTS her motion, and all claims against Defendant Kreger are dismissed. 5

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that:

(1) The pending motions to dismiss are GRANTED (Docket Entries 25, 29, 32), and all claims (including cross-claims) against

Defendants Sullivan, Dane, Kreger, Fitzgerald, Coppola, and Cohen are DISMISSED;

(2) Ms. Kreger's letter motion asking the Court to swa sponte dismiss the claims against her (Docket Entry 18) is DENIED

AS MOOT;

(2) Mr. Bey's motions to vacate (Docket Entries 19, 27) are DENIED, and all claims brought on behalf of Rein, Drizzle, Truth,

and Amicus Curiae Bey are DISMISSED without prejudice; and

(3) Mr. Bey's motion for a default judgment (Docket Entry 39) is DENIED; and

4) Mrs. Bey's remaining claims will be dismissed without prejudice unless the Court receives a copy of the Complaint signed

by Mrs. Bey within thirty (30) days of the date of this Memorandum and Order.

The Clerk of the Court is directed to terminate Judge Sullivan, Judge Dane, Ms. Kreger, Ms. Fitzgerald, and Mr. Cohen as

Defendants and Rein, Drizzle, Truth, and Amicus Curiae Bey as Plaintiffs. The Clerk of the Court is also directed to terminate

the motion at Docket Entry 23 (see supra page 2 n. 2) which is not a motion but rather Defendant Cohen's opposition to Plaintiff's

motion to vacate. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to each of the pro

se Plaintiffs.

SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2012 WL 4370272

Footnotes

| There is also a motion pending at Docket Entry 23. This is not a motion, however, but rather an opposition to Plaintiffs'

motion to vacate. The Clerk of the Court is directed to terminate the motion and amend the docket entry to reflect that

itis a “Letter in Opposition” to Docket Entry 19.

2 It appears as though Judge Dane presided over Mr. Bey's neglect proceedings. It is unclear what role, if any, Judge

Sullivan had in these proceedings.

3 The contents of Mr. Bcy's application are incomprehensible; however, the Complaint asserts that hc is sccking an order

enjoining the Family Court proceeding and vacating any judgments issued to date.

4 The County Defendants did not move to dismiss but rather answered the Complaint on November 7, 2011 and asserted

cross-claims against the other defendants for indemnification and/or contribution.

5 Mr. Bey argues that his motion is “timely because non attorneys are not bound by the same rules as attorneys.” (Docket

Entry 19, at 2.) This is not true. A plaintiff's pro se status “does not exempt [him] from compliance with relevant rules of

procedural and substantive law.” Jraguith v Zick, 710 F.2d 90, 95 (2d Cir.1983) (internal quotation marks and citation

omitted).

6 Although it appears as though the Family Court proceedings against Mrs. Bey are ongoing and the neglect petitions filed

against Mr. Bey have been dismissed (Kreger Decl. {7 n. 1), Mr. and Mrs. Bey are also seeking, infer alia, vacatur of

the “judgments issued by The Family Court and Nassau County Court CPS” (Compl. at 42).

7 To the extent that Mr. and Mrs. Bey assert claims for declaratory relief arising under state law, the Court declines

to extend supplemental jurisdiction, and those claims are dismissed without prejudice. See Carnegie-Mellon □□□□□ v.

Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).

8 Defendant Kreger also filed a letter motion asking this Court to sua sponte dismiss the claims asserted against her.

(Docket Entry 18.) This motion is DENIED AS MOOT.

9 With the exception of any claims for declaratory judgment arising under state law, all claims are DISMISSED WITH

PREJUDICE.

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

2023 WL 6929187

Only the Westlaw citation is currently available.

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

Michael C. CATHLIN, Plaintiff,

Vv.

CITY OF NEW YORK, et al., Defendants.

23-CV-4219 (LTS)

Signed October 18, 2023

Attorneys and Law Firms

Michael C. Cathlin, Brooklyn. NY. Pro Se.

ORDER OF DISMISSAL

LAURA TAYLOR SWAIN, Chief United States District Judge:

*1 Plaintiff, who is appearing pro se, brings this action alleging that Defendants violated his rights in criminal proceedings

before the Criminal Court of the City of New York, New York County, in violation of the Equal Protection Clause of the

Fourteenth Amendment and the New York State Constitution. By order dated May 24, 2023, the Court granted Plaintiff's request

to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court dismisses

this action.

STANDARD OF REVIEW

The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim

on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)

(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint

when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, □□□□□

v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) Gnternal quotation marks and citations omitted) (emphasis in original). But

the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits — to state a claim, pro se pleadings still must

comply with Rule & of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement

showing that the pleader is entitled to relief.

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for relief “that is

plausible on its face.” Bel/ Atl, Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads

enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing

the complaint, the Court must accept all well-pleaded factual allegations as true. As/crofi v. Igbal, 556 U.S. 662, 678-79 (2009).

But it does not have to accept as true “[t|hreadbare recitals of the elements of a cause of action,” which are essentially just legal

conclusions. /wombly, 550 U.S. at 555, After separating legal conclusions from well-pleaded factual allegations, the Court must

determine whether those facts make it plausible — not merely possible — that the pleader is entitled to relief. /d.

BACKGROUND

Plaintiff alleges that Defendants violated his rights in connection with his arrest and criminal proceedings, resulting in his

conviction of attempted forcible touching and sexual abuse in the third degree. Named as defendants are the City of New York:

Christina Awad, an Assistant District Attorney at the Manhattan District Attorney's Office (“DA's Office”); Jacob Smith, a

member of the New York City Police Department (“NYPD”) Transit Bureau Manhattan Task Force; Michael Miceli, a Youth

Officer at NYPD Transit Bureau District 2; and Catherine Byrns, Esq., an attorney at the DA's Office. Plaintiff seeks to vacate

his conviction and seal his DNA results, and money damages.

*2 The following information is taken from the complaint. Plaintiff, who at the time was a second year law student, was

arrested on June 11, 2019, and charged with forcible touching and sexual abuse in the third degree based on a subway train

incident. On November 25, 2019, Judge Josh Hanshaft, who presided over Plaintiffs criminal case in the Criminal Court of

the City of New York, New York County, denied him his right to a jury trial in violation of the Equal Protection Clause of the

Fourteenth Amendment and the New York State Constitution. Judge Hanshaft “did not recognize the potential of [Plaintiff]

being homeless and the damage it caused to [his] reputation, as a person as well as a security officer, serious enough for a

jury trial within the confines of New York City.” (ECF 1, at 5.) Instead, Judge Hanshaft conducted a bench trial and allowed

“admission of hearsay for the complainant, which otherwise would have been the only evidence to use against [Plaintiff's] plea

of not guilty.” Vd.) Although at trial, “it was established no communication of any kind occurred between [Plaintiff] and the

complainant before, during, or after the incident,” Judge Hanshaft found Plaintiff guilty of attempted forcible touching and

sexual abuse in the third degree and imposed a sentence of one year probation and counseling, and submission of his DNA.

On appeal, the New York Supreme Court, Appellate Division, First Department (“Appellate Division”), affirmed Plaintiff's

conviction, and the New York Court of Appeals denied him leave to appeal. See People v. Cathlin, 76 Misc. 3d 137(A), 175

N.Y.S.3d 408 (Table) (Ist Dep't Oct. 12, 2022), Iv denied, 39 N.Y.3d 1077 (Feb. 21, 2023). The Appellate Division determine

that there was no basis for disturbing the trial court's acceptance of the victim's account of the incident and rejection of Plaintiff's

testimony, that the verdict was not against the weight of evidence, that any errors in admission of statements were harmless,

and that Plaintiff was not entitled to a jury trial. See People v. Cathlin, 76 Misc. 3d 137(A), at *1-2.

In the complaint, Plaintiff reiterates many of the same grounds for relief from the direct appeal of his conviction. He refers to

the victim's shifting accounts of the events and asserts that she “fabricated the story about [his] hand under her dress because of

embarrassment, from thinking a rat was on her leg, and for whatever unknown reason, thought [he had] laughed at her reaction

to this mistake.” (ECF 1, at 11.) Plaintiff also challenges aspects of his arrest, including the arresting officer's failure to use

his body camera “for the purpose of supporting the truth” or to verify the victim's account of the events the same day. (/d.

at 12.) Plaintiff further asserts that Judge Hanshaft failed to address prosecutorial misconduct, made favorable rulings for the

prosecution, and convicted him of the charges despite “discrepancies of unreliable, inconsistent testimonies.” Ud. at 13.)

DISCUSSION

Plaintiff brings this action seeking to vacate his state court conviction, seal his DNA results, and money damages for alleged

violations of his rights in the criminal proceedings before the Criminal Court of the City of New York, New York County.

Because Plaintiff is not in custody — and thus has no remedy available through /abeas relief — the Court construes the complaint

as asserting claims of constitutional violations under 42 U.S.C. § 1983. > See Huang v. Johnson, 251 F.3d 65, 74 (2d Cir. 2001)

(noting Justice Souter's language in a concurrence that stated that “ ‘a former prisoner, no longer ‘in custody,” may bring a

§ 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-

termination requirement that it would be impossible as a matter of law for him to satisfy’ ” (quoting Spencer v. Kemna, 523

U.S. 1, 21 (1998) (Souter, J., concurring))). Section 1983 allows an individual to bring suit against persons who, acting under

color of state law, have caused him to be deprived] of any rights, privileges, or immunities secured by the Constitution and

laws of the United States.” 3 42US.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). For the reasons set forth below, however,

the Court must dismiss this action.

A. Challenge to Conviction

*3 The Rooker-Feldman doctrine “established the clear principle that federal district courts lack jurisdiction over suits that

are, in substance, appeals from state-court judgments.” Swag Cho v. City of New York, 910 F.3d 639, 644 (2d Cir. 2018) (citation

omitted). Because “federal district courts are granted original — and not appellate — jurisdiction, cases that function as de facto

appeals of state-court judgments are therefore jurisdictionally barred.” /¢. Under the Rooker-Feldman doctrine, a federal district

court lacks authority to review a final state court order or judgment where the plaintiff seeks relief that invites the federal district

court to reject or overtum such a final state court order or judgment. See Exxon Mobil Corp. v. Saudi Basie Indus. Corp., 544

280, 291-92 (2005); Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (‘[The Rooker-Feldman doctrine] bars

federal district courts from hearing cases that in effect are appeals from state court judgments, because the Supreme Court [of

the United States] is the only federal court with jurisdiction over such cases.” (citing 28 U.S.C. § 1257)); Kropelnicki v. Siegel,

290 F.3d 118, 128 (2d Cir. 2002) (“The |Rooker-Feldman| doctrine reflects the principle set forth in 28 U.S.C. § 1257 that

the Supreme Court [of the United States] is the only federal court that has jurisdiction to review state court judgments, unless

otherwise provided by Congress, see, e.g., 28 U.S.C, § 2254 (habeas corpus review).” (citation omitted)).

District court review of claims is barred under the Rooker-Feldman doctrine when four requirements are met; (1) the plaintiff

lost in state court: (2) the plaintiff complains of injuries caused by a final state court order or judgment: (3) the plaintiff invites

district court review and rejection of the final state court order or judgment; and (4) the final state court order or judgment was

rendered before the district court proceedings commenced. Dorce, 2 F.4th at 101 (internal quotation marks and citation omitted).

The Rooker-Feldman doctrine applies where a plaintiff seeks relief that invites a federal district court to reject or overturn a

final decision of a state court as to a conviction. See Jeichmann v. New York, 769 F.3d 821, 826 (2d Cir. 2014) (dismissal of

Section 1983 claims warranted under Rooker-Feldman where a plaintiff “seeks nothing more than a review of a state court

judgment”); Moalawi v. James, No, 22-CV-6770, 2023 WL 4817618, at *2 (S.D.N_Y. July 27, 2023) (finding that Rooker-

Feldman bars Plaintiff's challenge to state-court conviction under Section 1983); Mitchell . New York State, No, 22-CV-1747,

2023 WL 2734823, at *4 (E.D.N.Y. Mar. 31, 2023) (dismissing under the Rooker-Feldman doctrine, Section 1983 action that

“necessarily invites the Court to review the judgment of [the plaintiff's state court criminal] conviction”); Molina v. James, No.

21-CV-3144, 2022 WL 813815, at *5 (E.D.N.Y. Mar. 17, 2022) (dismissing under the Rooker-Feldman doctrine, plaintiff's

request for an injunction to dismiss his criminal conviction); Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 705-06

(S.D.N.Y. 2011) (finding no subject-matter jurisdiction under Rooker-Feldman, where plaintiff requested to “void ... conviction

entered by ... state courts”).

Here, Plaintiff's claims are barred under the Rooker-Feldman doctrine. Plaintiff, who was convicted in state court before bringing

this action, complains that his constitutional rights were violated in his 2019 criminal proceedings. In other words, he challenges

the validity of his state court conviction and invites the Court to review the judgment of conviction. The Rooker-Feldman

doctrine bars this Court from reviewing such challenges. The Court therefore dismisses Plaintiff's challenge to his state court

conviction, under the Reoker-Feldman doctrine, for lack of subject matter jurisdiction, See Fed. R. Civ. P. 12(h)(3); Exxon

Mobil Corp., 544 U.S. at 291,

B. Remaining Section 1983 Claims

Plaintiff brings this action ostensibly challenging his conviction and the submission of his DNA on the ground that he was

denied his right to a jury trial in violation of the Equal Protection Clause of the Fourteenth Amendment and the New York State

Constitution. (See ECF 1, at 2.) However, Plaintiffnames as defendants the City of New York, prosecutors from the Manhattan

DA's Office, and the officers involved in his arrest. It therefore appears that as well as challenging the validity of his conviction,

Plaintiff is also bringing Section 1983 claims against these defendants arising out of his arrest and prosecution.

1. Statute of limitations

*4 Plaintiff's claims arising from his arrest and prosecution may be time-barred. The statute of limitations for Section □□□□

claims is found in the “general or residual [state] statute [of limitations] for personal injury actions.” Pearl City of Long

Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that period is

three years. See N.Y. C.P.L.R. § 214(5). Section 1983 claims generally accrue when a plaintiff knows or has reason to know of

the injury that is the basis of the claim. //ogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). A false arrest claim under Section

1983 accrues, for example, when the false arrest ends, that is, once the arrestee “becomes held pursuant to legal process — when,

for example, he is bound over by a magistrate or arraigned on charges.” Wallace v. Kato, 549 U.S. 384, 389 (2007); Jaegly v.

Couch, 439 F.3d 149, 154 (2d Cir. 2006) (“A cause of action for false arrest accrues at the time of detention.’’).

Plaintiff was arrested on June 11, 2019, and was convicted on November 25, 2019. Plaintiff therefore had until some point

between June 2022 and November 2022 to file a timely action asserting claims arising from his arrest and prosecution. Plaintiff's

complaint, however, was filed on May 21, 2023, almost six months beyond the expiration of the three-year limitations period.

Because the failure to file an action within the limitations period is an affirmative defense, a plaintiff is generally not required

to plead that the case is timely filed. See Abbas, 480 F.3d at 640, Dismissal is appropriate, however, where the existence of an

affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Walters v. Indus. and Commercial

Bank of China, Lid., 651 F.3d 280, 293 (2d Cir. 2011); see also Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming swa sponte

dismissal under 28 U.S.C. § 1915(d) on statute of limitations grounds). A district court should grant notice and opportunity to

be heard, however, before dismissing a complaint sua sponte on statute of limitations grounds. Abbas, 480 F.3d at 640.

To the extent Plaintiff is secking to bring claims arising out of his arrest and prosecution, his claims were filed beyond the

expiration of the applicable statute of limitations. Normally, the Court would grant him leave to plead any facts showing that

equitable tolling applies but, as discussed below, Plaintiff fails to state any claim for relief, and therefore, it is appropriate to

dismiss his untimely claims.

2. Claims against the City of New York

When a plaintiff sues a municipality, such as the City of New York, under Section 1985, itis not enough for the plaintiff to allege

that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality

itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A municipality or other

local government may be liable under this section [1983] if the governmental body itself “subjects” a person to a deprivation of

rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” (quoting Monell v. Dep't of Soc. Servs. of City of New York,

436 U.S. 658, 692 (1978))); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a claim under

Section 1983 against a municipality, the plaintiff must allege facts showing: (1) the existence of a municipal policy, custom, or

practice; and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. Jones v. Town

of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); see Bd. of Cntv. Comm'rs of Brvan Cnty. v. Brown, 520 U.S. 397, 403 (1997)

(internal citations omitted).

*§ Plaintiff does not allege any facts showing that a policy, custom, or practice of the City of New York caused a violation of

his federal constitutional or statutory rights. The Court therefore dismisses any claims Plaintiff may be asserting under Section

1983 against the City of New York for failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii).

3. Claims against Awad and Byrns

Plaintiff claims for damages under Section 1983 against Defendants Christina Awad and Catherine Byrns arising from his

criminal prosecution must also be dismissed. Prosecutors are immune from civil suits for damages for acts committed within

the scope of their official duties where the challenged activities are not investigative in nature but, rather, are “ ‘intimately

associated with the judicial phase of the criminal process.’ ” Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012) (quoting

Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also Buckley v, Fitzsimmons, 509 U.S. 259, 269 (1993) (absolute immunity

is analyzed under a “functional approach” that “looks to the nature of the function performed, not the identity of the actor who

performed it” (internal quotation marks and citations omitted)). In addition, prosecutors are absolutely immune from suit for

acts that may be administrative obligations but are “directly connected with the conduct of a trial.” an de Kamp v. Goldstein,

555 U.S. 335, 344 (2009); see also Ogunkoya v. Monaghan, 913 F.3d 64, 70-72 (2d Cir, 2019) (holding that ADAs’ direction as

to where criminal defendant would be arraigned was in preparation for a court proceeding in which the prosecutors were acting

as advocates, and ADAs were therefore shielded by absolute immunity (citing, infer alia, Van de Kamp)).

Here, Plaintiff does not allege what Defendants Awad and Byrns did to violate his rights. However, the Court understands

Plaintiff's claims against these defendants to be based on actions within the scope of their official duties within the Manhattan

DA's Office and associated with the conduct of a trial. Therefore, Plaintiff's claims against these defendants are dismissed

because he seek monetary relief against defendants who are immune from such relief, 28 U.S.C. § 1915A(b)(2), and,

consequently, as frivolous, 28 U.S.C. § 191SA(b)(1). See Collazo v, Pagano, 656 F. 3d 131, 134 (2d Cir. 2011) (holding that

a claim against a prosecutor is frivolous if it arises from conduct that is “intimately associated with the judicial phase of the

criminal process”).

C. Claims against Smith and Miceli

Plaintiff also names Officers Smith and Miceli, who appear to be the arresting officers, as defendants in this action. To state a

claim under Section 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged

constitutional deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled

in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award

of damages under § 1983.” (internal quotation marks omitted)). A defendant may not be held liable under Section 1983 solely

because that defendant employs or supervises a person who violated the plaintiff's rights. See As/crofi v. Igbal, 556 U.S. 662.

676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory

of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of

the underlying constitutional violation directly against the official] .|” 7angreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020),

*6 Plaintiff does not allege any facts showing how Officers Smith or Miceli were personally involved in the events underlying

his claims. Plaintiff's claims against these defendants are therefore dismissed for failure to state a claim on which relief may

be granted. * See 28 U.S.C. § 1915(e)(2)\(B)(ii).

D. Claims under State Law

A district court may decline to exercise supplemental jurisdiction over state-law claims when it “has dismissed all claims

over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of

the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.”

Carnegie-Mellon Univ. v, Cohill, 484 U.S. 343, 350 n.7 (1988). Having dismissed the federal claims of which the Court

has original jurisdiction, the Court declines to exercise its supplemental jurisdiction of any state-law claims Plaintiff may be

asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms

the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its

exercise.’ ” (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).

E. Leave to Amend Denied

*7 District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend

is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861

F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines

to grant Plaintiff leave to amend his complaint.

CONCLUSION

The Court dismisses Plaintiffs challenge to his conviction under the Rooker-Feldman doctrine, for lack of subject matter

jurisdiction. See Fed. R. Civ. P. 12(h)(3). The Court also dismisses Plaintiff's remaining claims under 28 U.S.C. § 1915(e)(2)

(iii). All other pending matters in this action are terminated.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore

IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

All Citations

Not Reported in Fed. Supp., 2023 WL 6929187

Footnotes

l The Court quotes Plaintiff's complaint and other submissions verbatim. All spelling, grammar, and punctuation are as

in the original unless otherwise indicated.

Generally, a civil action is not the appropriate vehicle to seek expungement of a criminal conviction. See Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973) (noting that a writ of habeas corpus is the sole remedy for a prisoner seeking to

challenge the fact or duration of his confinement); see also Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (“[I]n order

to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized

to make such determination, or called into question by a federal court's issuance ofa writ of habeas corpus{|.|”). However,

the favorable termination rule stated in Heck does not bar Section 1983 claims when habeas relief is unavailable. See

Huang v. Johnson, 251 F.3d 65, 74 (2d Cir. 2001); see also Heck, 512 U.S, at 500 (“[State prisoners] not “in custody’

cannot invoke federal /abeas jurisdiction, the only statutory mechanism besides § 1983 by which individuals may suc

state officials in federal court for violating federal rights.”).

3 To state a Section 1983 claim, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the

United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state

actor.” West, 487 U.S. at 48-49.

4 The Court notes that Plaintiff does not allege any facts suggesting viable false arrest or malicious prosecution claims.

To state a claim for false arrest and imprisonment under New York law, a plaintiff must show that: “(1) the defendant

intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent

to the confinement and (4) the confinement was not otherwise privileged.” Liranzo v. United States, 690 F.3d 78, 95

(2d Cir. 2012). An arrest is privileged if it is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d

Cir, 2007), Officers have probable cause to arrest when they “have knowledge or reasonably trustworthy information of

facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be

arrested has committed or is committing a crime.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013)

(emphasis and citation omitted). Plaintiff does not allege facts indicating that the police officers who arrested him for

forcible touching and sexual abuse lacked probable cause or otherwise acted unreasonably or in the absence of good

faith when they arrested him.

Any malicious prosecution claim Plaintiff is asserting is also deficient. To state a claim for malicious prosecution, a

plaintiff must allege facts showing: (1) that the defendant initiated or continued a prosecution against the plaintiff; (2)

that the defendant lacked probable cause to commence the proceeding or believe the proceeding could succeed; (3)

that the defendant acted with malice; and (4) that the prosecution was terminated in the plaintiff's favor. See □□□□□□ v.

Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Thus, because favorable termination is an element ofa malicious prosecution

claim, a plaintiff who has been convicted and seeks to recover damages under Section 1983 for malicious prosecution

must show that his conviction terminated in his favor by alleging that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, invalidated by a state tribunal authorized to make such determinations, or

otherwise called into question by a federal court's issuance of a writ of habeas corpus. See Wilkinson v. Dotson, 544

U.S. 74, 81-82 (2005) (holding that Section 1983 actions are “barred (absent prior invalidation) ... if success in that

action would necessarily demonstrate the invalidity of confinement or its duration” (italics in original) (citing □□□□□ 512

U.S. at 486-87)). Because Plaintiff does not allege facts suggesting that his conviction has been overturned or otherwise

invalidated, he cannot state a viable malicious prosecution claim for damages and equitable relief.

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

2024 WL 4870495

Only the Westlaw citation is currently available.

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

Matthew H. COLE, Plaintiff,

v.

Honorable Michael W. SMRTIC, et al. Defendants.

No. 1:24-CV-00847 (MAD/CFH)

Signed November 21, 2024

Attorneys and Law Firms

MATTHEW H. COLE, 271 Market Street, Amsterdam, New York 12010, Plaintiff pro se.

REPORT-RECOMMENDATION & ORDER

CHRISTIAN F. HUMMEL, United States Magistrate Judge

I. In Forma Paupcris

*1 Plaintiff pro se Matthew H. Cole (“plaintiff”) commenced this action (No. 1:24-CV-00623) on May 6, 2024, by filing a

complaint. See Dkt. No. 1 (“Compl.”). On September 26, 2024, plaintiff submitted what the Court construes to be a supplement

to the complaint. ' See Dkt. No. 7. In lieu of paying this Court's filing fees, he submitted an application for leave to proceed

in forma pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed plaintiffs IFP application and determines that he

financially qualifies to proceed IFP. > Thus, the Court proceeds to its review of the complaint pursuant to 28 U.S.C. § 1915,

Plaintiff has also submitted for the Court's review a Pro Se Application for Permission to File Electronically and a Motion to

Appoint Counsel. See Dkt. Nos. 4, 5.

II. Initial Review

A. Legal Standards

Section 1915 of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss

the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before

permitting him to proceed with his action,

Where, as here, the plaintiff proceeds pro se, “the court must construe his submissions liberally and interpret them to raise the

strongest arguments that they suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (internal

quotation marks omitted): see also Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994), As the Second Circuit stated,

There are many cases in which we have said that a pro se litigant is entitled to “special solicitude,” that a pro se litigant's

submissions must be construed “liberally,” and that such submissions must be read to raise the strongest arguments that they

“suggest|.|” At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not

“consistent” with the pro se litigant's allegations, or arguments that the submissions themselves do not “suggest,” that we

should not “excuse frivolous or vexatious filings by pro se litigants,” and that pro se status “does not exempt a party from

compliance with relevant rules of procedural and substantive law|.|”

*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citations and footnote omitted); see also Sealed

Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).

“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits, because pro se pleadings still must comply with ...

the Federal Rules of Civil Procedure [(‘Fed. R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952,

at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). Pleading guidelines are provided in the

Federal Rules of Civil Procedure. Specifically, Rule 8 requires the pleading to include:

(1) a short and plain statement of the grounds for the court's jurisdiction ...;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

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

FED. R. CIV. P. &(a). Although “[n]Jo technical form is required,” the Federal Rules make clear that each allegation contained in

the pleading “must be simple, concise, and direct.” Id. at 8(d). “The purpose ... is to give fair notice of the claim being asserted

so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether

the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and

citations omitted). Allegations that “are so vague as to fail to give the defendants adequate notice of the claims against them”

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

Further, Fed. R. Ciy. P. 10 provides:

[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a

single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading.

If doing so would promote clarity, each claim founded on a separate transaction or occurrence — and each

defense other than a denial — must be stated in a separate count or defense.

FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] an casy mode of identification for referring to a particular

paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that

fails to comply with the pleading requirements “presents far too a heavy burden in terms of a defendant's duty to shape a

comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v.

Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not comply with the

requirement that it be short and plain, the court has the power, on its own initiative ... to dismiss the complaint.” Salahuddin v.

Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). However, “[d]ismissal ... is usually reserved for those cases in which

the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.”

Id. (citations omitted).

*3 This Court also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro

se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.

2000). “Legal frivolity ... occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the

claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.’ ” Aguilar y. United

States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) 3 (quoting Livingston v. Adirondack

Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper

only if the legal theory ... or factual contentions lack an arguable basis.”).

B. Complaint

Plaintiff's civil cover sheet indicates that he seeks to bring this action pursuant to “Title U.S.C. 18 Section 241, Conspiracy

Against Rights & Title U.S.C. 18 Section 242 Deprivation of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil cover

sheet further provides that his cause of action involves, “Violation of Due process, Speedy Trial Rights, Ineffective Assistance

of Counsel. I feel I am being targeted for being black and gay.” Id.

Plaintiff's form complaint checks the box indicating that he seeks to bring this case pursuant to 42 U.S.C. § 1983. See Compl.

at 3. In response to the question in the form complaint asking in “what federal constitutional or statutory right(s) do you claim

is/are being violated by state or local officials,” plaintiff responds, “Due Process, 30.30 Speedy Trial Violation, Ineffective

Assistance of counsel.” Id. In response to a question asking him to explain “how each defendant acted under color of state

or local law,” plaintiff states “Each judge deliberately denied me due process, and refused to look into the paperwork to see

that i was improperly denied my speedy trial rights, It was a tean [sic] effort. The ADA/Special Prosecutor withheld potential

exculpatory material which was usd [sic] against me. All mentioned actions were done and upheld even after I showed federal

law with supportive case law as a pro se litigant.” Id.

Plaintiff provides that his “case is still on appeakl [sic] in Appellate Court Third Department. I feel they are guilty, or part of

what I call a scandal. I went to them from the very start with a complaint to the grievance committee, where they denied any

wrongdoing. It must be ok to violate Constitutional rights there. This is from March 2019 to present” Id.

In response to a question that asks plaintiff to state the facts underlying his claims, plaintiff states, “Please see attached Article

78 that is attached. It was dismissed being in the wrong court, but is on point.” Id. at 4. Plaintiff did not provide the Court with

any such attachment and has not submitted any Article 78 materials. See Compl., Dkt. No. 7.

In response to the form complaint's question asking about any injuries suffered as a result of the conduct he complains of,

plaintiff states, “Sever [sic] depression over 20 years, irreperable [sic] harm, defamation of charcter [sic] by arguments not

legally allowed to give. Loss of income, inability to gain and keep employment, mental trauma, instilled disbelief in justice in

the legal system, familial traumam [sic] due to my legal battles.” Id. Indicating the relief sought, plaintiff states

*4 Petitioner seeks reinstatement of driving priveldges [sic], and 10 million dollars for damages caused

by conflict of interest, deliberate violation of Due Process, Speedy Trial rights, Ineffective assistance of

counsel, malice, Brady Violation, Petitioner claims deliberate misconduct and malice in Montgomery

County Court, the Saratoga Disrict Attorney's Office, and the Supreme Court Appellate Division Third

department. ** This is subject to change if an attorney agrees to represent.

Compl. at 5. Although he typed his name, plaintiff does not sign the complaint where a signature is indicated. See id. at 8.

Plaintiff provides in his supplement that he “removed this action to district court asserting jurisdiction pursuant to 42 U.S.C.

1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states that he removed this case from Montgomery County Supreme Court. See

id. He states that he seeks or sought the removal because he was told he was “not guarantee counsel” at the state, but that

Federal Court, there is that option, pending qualification, and I am told, if a lawyer agrees to take it, then I really have

something. I am in dire need of counsel.” Id.

Plaintiffstates, “[t]he ineffective assistance of counsel and The County Court are a matter already mentioned in the appeal.” Dkt.

No. 7 at 2. Plaintiff states that “[t]o get my conviction, I allege judicial and prosecutorial misconduct, and ineffective assistance

of counsel x 4. That is why | am pro se. | had to protect myself when appointed counsel did not. It also went through a couple

judges which is why they are mentioned in the preliminary complaint/paperwork, and why I mention bias.” Id. Plaintiff states he

can “prove each thing I saw not just with my words, but with transcripts > from the County Court, and the Adult Drug Court.”

Id. Plaintiff refers to being drug free for four and a half years and having academic success in college. Id. at 3. He states that he

wishes this Court to hear his case because he believes he will not “see bias” in federal court “like I saw in others.” Id. Plaintiff

states that he “also put in a Notice of Removal in the Federal Court for those criminal charges that led to the Complaint. I do not

trust the assigned appellate attorney. That case too has Constitutional violations. That case number is 1:24-CR-301 (AMN).” Id.

C. Discussion °

1. Rule 8

As a threshold issue, plaintiff's complaint fails to meet the requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He does not

provide a short and plain statement of the claim demonstrating why he is entitled to relief. Although he makes general references

to both an Article 78 proceeding and a criminal proceeding and unexplained references to “Due Process, 30.30 Speedy Trial

Violation, Ineffective of Counsel,” he does not provide factual support or context. Thus, his complaint does not provide “fair

notice” to defendants of the claims against them. See FED. R. CIV. P. 8(a)(2).

2. Heck v. Humphrey

However, there are several substantive concerns that further lead the undersigned to recommend dismissal. First, in referencing

to “Due Process, 30.30 Speedy Trial Violation, Ineffective of Counsel” and explicitly referencing a criminal conviction, it is

clear that plaintiff is attempting to seek some kind of review of a criminal proceeding or conviction. See Compl. at 3. Plaintiff

also accuses all named judges of denying him due process and contends that an unnamed “ADA/Special Prosecutor withheld

potential exculpatory material which was usd [sic] against me.” Compl. at 4. Plaintiff also references a conviction. See Dkt.

No. 7 at 4. Such claims would be barred by Heck v. Humphrey.

*5 As this Court, citing the District of Connecticut, has set forth:

In Heck, the Supreme Court held that in order for a plaintiff “to recover damages for allegedly unconstitutional conviction

or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a

§ 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance

of a writ of habeas corpus.” Id. at 486-87. The court further held that “[a] claim for damages bearing that relationship to a

conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487 (emphasis in original).

Thus, under Heck and its progeny, ifa conviction has not been invalidated previously, a Ҥ 1983 action is barred ... no matter

the target of the prisoner's suit ... if success in that action would necessarily demonstrate the invalidity of confinement or its

duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original).

Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024 WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-recommendation

adopted sub nom. Ali v. Dow, No. 8:24-CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024) (quoting Zografidis v. Richards,

No. 3:22-CV-00631 (AVC), 2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and recommendation adopted (Oct. 7,

2022), aff'd, No. 22-3197, 2023 WL 7538211 (2d Cir. Nov. 14, 2023)).

Plaintiff has failed to demonstrate that any criminal charge(s), conviction, or sentence has been “reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question

by a federal court's issuance of a writ of habeas corpus.” Zografidis, 2022 WL 21756775, at *7. Although plaintiffs complaint

wants for detail, the undersigned can clearly determine that plaintiff seeks review of his criminal proceedings. conviction, and/

or sentence. The claims plaintiff seeks to pursue relate to allegations that he was denied due process, denied speedy trial rights,

and experienced ineffective assistance of counsel. Accordingly, plaintiff's claims are barred by Heck unless and until he can

demonstrate favorable termination of his criminal conviction. ’

3. Immunities

Plaintiffnames as defendants several defendants who are immune from suit. Insofar as plaintif{fnames Hon. Michael W. Smrtic,

Interim Montgomery County Judge and Tatiana N. Coffinger, “County/Family/Surrogate's Court Judge” * such claims would

be barred by judicial immunity.

*6@ “With minor exceptions, judges are entitled to absolute immunity for actions relating to the exercise of their judicial

functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/ATB), 2017 WL 8777370, at *8 (N.D.NLY. July 7, 2017) (citing

Mireles v. Waco, 502 U.S, 9, 9-10 (1991) (per curiam)). “Judicial immunity has been created for the public interest in having

judges who are ‘at liberty to exercise their functions with independence and without fear of consequences.’ ” Id. (quoting

Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even when the judge is accused of acting

maliciously or corruptly.” Id. (citation omitted); see Positano v. New York, No. 12-CV-2288 (ADS/AKT), 2013 WL 880329,

at (E.D.N-Y. Mar. 7, 2013) (explaining that the plaintiff may not bring action against a judge for actions taken in his judicial

capacity, even when the actions violated the ADA).

“Judicial immunity is immunity from suit, not just immunity from the assessment of damages.” Zavalidroga, 2017 WL 8777370,

at *8 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The only two circumstances in which judicial immunity does

not apply is when he or she takes action ‘outside’ his or her judicial capacity and when the judge takes action that, although

judicial in nature, is taken ‘in absence of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12). “In determining whether or

not a judge acted in the clear absence of all jurisdiction, the judge's jurisdiction is ‘to be construed broadly, and the asserted

immunity will only be overcome when the judge clearly lacks jurisdiction over the subject matter.’ ” Pacherille v. Burns, 30 F.

Supp. 3d 159. 163 (N._D.N_Y. 2014) (quoting Ceparano v. Southampton Just. Ct., 404 F, App'x 537, 539 (2d Cir. 2011) (summary

order)). “Whether a judge acted in a judicial capacity depends on the nature of the act [complained of] itself, i.e., whether it is

a function normally performed by a judge, and [on] the expectations of the parties, i.c., whether they dealt with the judge in

his judicial capacity.” Ceparano, 404 F. App'x at 539 (internal quotation marks and citation omitted). “Further, if the judge is

performing in his judicial capacity,” he “ ‘will not be deprived of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence

of all jurisdiction.’ ” Ceparano, 404 F. App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). “Judges are not,

however, absolutely “immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity.’ ”

Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).

Thus, as plaintiff names the judicial defendants in relation to actions or omissions that they took in their roles as judges, their

actions are protected by absolute judicial immunity. To the extent plaintiff names Hon. Felix Catena, “Retired Administrative

Law Judge.” Judge Catena is also protected by absolute judicial immunity as a judge's retirement, “does not impact [his or]

her immunity for acts taken in [his or] her official capacity before her retirement.” McCray v. Lewis, No. 16-CV-3855 (WFK/

VMS), 2016 WL 4579081, at *2 (E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to sue the judges their official

capacities, the suit is barred by the Eleventh Amendment. See Pacherille y. Burns, 30 F. Supp. 3d 159, 163 n.5 (N.D.N.Y. 2014)

(“The Eleventh Amendment shields judges from suit to the extent that they are sued in their official capacities.”).

*7 In addition, plaintiffalso references, exclusively in his “relief section of the form complaint, “the Supreme Court Appellate

Division, Third Department” when stating that he experienced “deliberate misconduct and malice.” Compl. at 7. He does not

name this Court as a defendant anywhere in the complaint. However, even if plaintiff were to have named the Appellate Division,

Third Department as a defendant, such defendant would also need to be dismissed based on Eleventh Amendment immunity

as the Appellate Division “is merely an agency or arm of New York State.” Benyi v. New York, No. 3:20-CV-1463 (DNH/

ML), 2021 WL 1406649, at *5 (N.D.N.Y. Mar. 23, 2021), report and recommendation adopted, No. 3:20-CV-1463, 2021 WL

1404555 (N.D.N-Y. Apr. 13, 2021) (citation omitted). Accordingly, to the extent a liberal reading of the complaint may suggest

that plaintiff seeks to name the Appellate Division as a defendant, such claims are barred by Eleventh Amendment immunity.

See Compl.

Finally, insofar as plaintiff seeks to sue Prosecutor Samuel Y. Maxwell, Esq., Assistant District Attorney, in addition to the Heck

issues noted above, he would be protected by absolute prosecutorial immunity. As this Court has recently reiterated,

Prosecutors enjoy “absolute immunity from § 1983 liability for those prosecutorial activities ‘intimately associated with the

judicial phase of the criminal process.’ ” Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler v. Pachtman,

424 U.S. 409, 430 (1976)), This immunity encompasses “virtually all acts, regardless of motivation, associated with [the

prosecutor's] function as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotations and

citation omitted). Absolute immunity applies when a prosecutor's conduct, acting as an advocate during the judicial phase

of the criminal process, “involves the exercise of discretion.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (citing

Kalina v. Fletcher, 52? U.S. 118, 127 (1997)),

Accordingly, absolute immunity extends to functions such as “deciding whether to bring charges and presenting a case to

a grand jury or a court, along with the tasks generally considered adjunct to those functions, such as witness preparation,

witness selection, and issuing subpoenas.” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (citing Imbler, 424

U.S. at 431 n.33); see also Flagler, 663 F.3d at 547 (explaining, “the Supreme Court has found prosecutors absolutely immune

from suit for alleged misconduct during a probable cause hearing, in initiating a prosecution, and in presenting the State's

case ... [but] withheld absolute immunity for conduct unrelated to advocacy, such as giving legal advice, holding a press

conference, or acting as a complaining witness.”). “[OJnce a court determines that challenged conduct involves a function

covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive

or the degree of injury caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citing Cleavinger v. Saxner,

474 193, 199-200 (1985)),

Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024 WL 3649849, at *5 (N.D.N-Y. June 11, 2024), report_and

recommendation adopted, No. 5:24-CV-573, 2024 WL 3548760 (N.D.N.Y. July 26, 2024).

Plaintiff appears to suggest that Mr. Maxwell “withheld potentially exculpatory material” that was used against him. Compl.

at 4. Beyond the Heck barriers already discussed, even if plaintiff could amend to provide greater detail, absolute immunity

would extent to even this alleged misconduct as such allegations clearly fall within the scope of prosecutorial immunity,

Accordingly, it is recommended that any claims against ADA Samuel V. Maxwell be dismissed for absolute prosecutorial

immunity. “Furthermore, because the District Attorney's prosecutorial immunity is substantive and not something that can be

corrected by a better pleading, I recommend that the dismissal be with prejudice.” Phillips v. New York, No. 5:13-CV-927,

2013 WL 5703629, at *5 (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 223 (2d Cir. 2000)). 3

IIL. Conclusion

*8 Itis ORDERED, that plaintiff's in forma pauperis application (dkt. no. 2) be GRANTED: and it is

RECOMMENDED, that plaintiff's section 1983 claims against Honorable Michael W. Smrtic; Tatiana N. Coffinger, County/

Family/Surrogate's Court Judge; and Felix Catena, Retired Administrative Law Judge (Dkt. Nos. 1, 7) be DISMISSED WITH

PREJUDICE as follows: (1) claims brought against them in their personal/individual capacities for judicial immunity, and (2)

claims brought against them in their official capacities for Eleventh Amendment immunity; and it is further

RECOMMENDED. that plaintiff's section 1983 claims against Assistant District Attorney Samuel V. Maxwell (Dkt. Nos. 1,

7) be DISMISSED WITH PREJUDICE due to absolute prosecutorial immunity; and it is further

RECOMMENDED, that, to the extent a liberal reading of the complaint may suggest that plaintiff seeks to name the Appellate

Division, Third Department, as a defendant (Dkt. Nos. 1, 7), such claims be DISMISSED WITH PREJUDICE as barred by

Eleventh Amendment immunity, and it is

RECOMMENDED, that plaintiffs pro se motion for permission to file electronically (dkt. no. 4) and motion to appoint

counsel !° (dkt. no. 5) be DISMISSED AS MOOT based on the above recommendations, and it is

ORDERED, that the Clerk serve this Report-Recommendation & Order on plaintiff in accordance with the Local Rules.

IT IS SO ORDERED.

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

FOURTEEN (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs..

892 F.2d 15 (2d Cir. 1989); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. |!

All Citations

Slip Copy, 2024 WL 4870495

Footnotes

| The submission includes a letter addressed to District Judge D'Agostino, titled, “Requirements for Cases Removed From

State Court,” Dkt. No. 7; a receipt from Montgomery County Clerk dated December 8, 2022; and a “Notice of Claim”

with the caption of Cole v. County of Montgomery, dated December 7, 2022. See Dkt. No. 7. The undersigned has

reviewed this submission in connection with the initial review of plaintiffs complaint. See Sira v. Morton, 380 F. 3d

57, 67 (2d Cir. 2004).

2 Plaintiff is advised that, although he has been granted IFP status, he is still required to pay all fees and costs he may

incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees.

3 Any unpublished cases cited within this Report-Recommendation & Order have been provided to plaintiff.

4 Although plaintiff generally references ineffective assistance of counsel, Compl. at 4, he does not name any attorney

who may have represented him. Any claims against the prosecutor would not be considered ineffective assistance of

counsel because Mr. Maxwell, as the prosecutor, was not plaintiff's attorney.

5 Plaintiff did not provide any transcripts.

6 As a courtesy, the Court has provided plaintiff with copies of any unpublished cases cited within this Report-

Recommendation & Order.

The undersigned recognizes that claims that are determined to be barred by Heck are dismissed without prejudice.

However, the undersigned has recommended dismissal with prejudice because plaintiff has only named defendants

who are immune from relief. Accordingly, the undersigned is recommending dismissal of the claims based on these

immunities, rather than a Heck dismissal. The undersigned has included the Heck review for sake of completeness.

8 Although plaintiff provides no facts regarding any family court proceedings, that he named a family court judge and

makes general reference to that he seeks review over actions taken by a family court judge. Even if plaintiff were

to amend his complaint to provide facts about any possible family court proceedings and details about any alleged

violations of his rights that he believes he faced in that Court, if plaintiff seeks this Court's review of an order of the

family court, such review would be barred by Rooker-Feldman, and if plaintiff seeks this Court's review or intervention

ofa currently pending/ongoing Family Court proceeding, such review would be barred by Younger. See Porter v. Nasci,

No. §:24-CV-0033 (GTS/TWD), 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), report and

recommendation adopted, 2024 WL 3158645 (N.D.N_Y. June 25, 2024) (“Under the Rooker-Feldman doctrine, a federal

district court lacks authority to review a final state court order or judgment where a litigant seeks relief that invites the

federal district court to reject or overturn such a final state court order or judgment.”’); sce also Diamond “D” Constr.

Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal courts [must] abstain from taking jurisdiction over

federal constitutional claims that involve or call into question ongoing state proceedings.”).

9 Plaintiff appears to characterize his submissions as a purported removal to federal court or suggests that he seeks to

remove his case from Montgomery County Court to this Court. See Dkt. No. 7 (citing 28 U.S.C. § 1441). However, in

addition to the infirmities mentioned above, plaintiff has not demonstrated that any proceeding related to this complaint

has been properly removed to, or is subject to removal to, this Court. See, e.g., 28 U.S.C. § 1446. Indeed, plaintiff's

submissions appear to indicate that plaintiff is the plaintiff in the County Court action. See id. § 1446(a).

10 The undersigned also notes that plaintiff did not contend that he made any efforts to obtain counsel on his own, show

proof of any attorneys he contacted. See Terminate Control Corp v. Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.

No. 5.

1] If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional

days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from the date the Report-

Recommendation and Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that

prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next

day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).

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

2019 WL 1981416

2019 WL 1981416

Only the Westlaw citation is currently available.

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

Donald James COON, Plaintiff,

Vv.

Frank MEROLA, et al., Defendants.

1:19-CV-394 (DNH/ATB)

Signed 04/08/2019

Attorneys and Law Firms

Donald James Coon, Troy, NY, pro se.

ORDER and REPORT-RECOMMENDATION

Hon. Andrew T. Baxter, U.S. Magistrate Judge

*1 The Clerk has sent to the Court a civil rights complaint filed by pro se plaintiff Donald James Coon, together with a motion

to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2).

I. In Forma Pauperis (““IFP”) Application

A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). The court finds for

purposes of this recommendation, that plaintiff meets the financial criteria for IFP status.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the

sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss

the case at any time if the court determines that the action is (i) 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. Neiizke 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. Neiizke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802,

804 (8th Cir. 1974), Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in

ordering □□ sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to

respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed.

Fitzgerald v. First Fast Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss

a frivolous complaint sea sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state

a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bel/ Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)), “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” /d. (citing Bel/ All. Corp., 550 U.S. at 555), The court will now turn to a consideration of the

plaintiffs complaint under the above standards.

2019 WL 1981416

II. Complaint

Although plaintiff's complaint is very conclusory, a liberal reading of the allegations contained thercin show that plaintiff

is attempting to allege that the Rensselaer County Clerk and his John/Jane Doe Deputy Clerks have violated plaintiff's

constitutional rights in connection with a state court law suit that plaintiff has attempted to bring. (Complaint (“Compl.”)

generally) (Dkt. No. 1). In order to understand plaintiff's allegations in this action, the court must discuss another action filed by

this plaintiff in 2016. In 2016, plaintiff filed a federal action in this court in which he named a variety of defendants, including

Police Chief George Bell, the Villages of Cambridge and Greenwich, various district attorneys, Claverack Insurance Company,

Glens Falls Hospital, Washington County Child Protective Services, and a police officer. Coon v, Bell, No. 1:16-CV-291 (TJM/

DJS).

*2 After initial review of plaintiffs complaint in Coon v, Bell, Magistrate Judge Daniel Stewart found that plaintiff failed

to state claims against the defendants and recommended that he be allowed to file an amended complaint in an effort to cure

the deficiencies in the original. (Dkt. No. 8 in 16-CV-291). United States District Court Judge Thomas J. McAvoy adopted

Magistrate Judge Stewart's recommendation on May 23, 2016. (Dkt. No. 11 in 16-CV-291). Plaintiff complied with the court's

direction and filed an amended complaint on May 23, 2016. (Dkt. No. 12 in 16-CV-291),

Magistrate Judge Stewart conducted an initial review of the amended complaint and found that plaintiff failed to cure most of

the deficiencies that were in the original. (Dkt. No. 13 in 16-CV-291). Magistrate Judge Stewart recommended dismissing most

of the claims and most of the defendants from the action, while allowing a Fourth Amendment illegal search claim and Fourth

Amendment excessive force claim to proceed against defendant Bell. : (Dkt. No. 13 in 16-CV-291). Magistrate Judge Stewart's

recommendation was adopted by Judge McAvoy on November 2, 2016, (Dkt. No. 16 in 16-CV-291).

In Magistrate Judge Stewart's report and recommendation, he found that plaintiff's defamation claims against defendant Bell and

his attempted contract claims against defendant Bell and Claverack Insurance Company were, at best, state law claims. 2 (Dkt.

No. 13 in 16-CV-291 at 4). Plaintiff then states that he “filed said claims” in the Rensselaer County Supreme Court. (Compl.

at 1). Plaintiff states that in 2017, Judge Andrew G. Ceresia granted plaintiff poor person status, but that when he went to the

Rensselaer County Clerk's office, defendant Merola told plaintiff that Judge Ceresia's order was “no good and they wouldn't

honor it.” (Compl. at 2). Plaintiff states that he brought Judge Ceresia's order to the Clerk's office four more times, and □□□□□□□□□

on March 11, 2019, a clerk that plaintiff had never seen before stamped the Judge's order and kept a copy. (/d.)

Plaintiff alleges that he has been denied his “rightful benefits and access to the court.” Plaintiff states that he even had “to choose

between the suit or my housing,” and that he was homeless from January 12, 2018 until April 24, 2018. (/d.) Plaintiff states

that the Rensselaer County Supreme Court wrote plaintiff “2 times the County Clerk's staff made me pay for RJI motion I had

already paid for. They told me to give letter [sic] to the Clerk and I would get my monies back.” (/d.)

Plaintiff states that he is seeking “just compensation” for the Rensselaer County Clerks' actions who refused to recognize his

“poor person status” from 2017 until 2019. Plaintiff states that he still has not “received anything” from the “grant[ed] status”

because the Clerks refused to grant “my said status.” (/d.) Plaintiff seeks substantial monetary relief. (/d.)

Il. Judicial Immunity

A. Legal Standards

*3 With minor exceptions, judges are entitled to absolute immunity for actions relating to the exercise of their judicial functions.

Mireles v. Waco, 502 U.S. 9, 9-10 (1991). Judicial immunity has been created for the public interest in having judges who are

“at liberty to exercise their functions with independence and without fear of consequences.” Huminski v. Corsones, 396 F.3d

53, 74 (2d Cir. 2004). Judicial immunity applies even when the judge is accused of acting maliciously or corruptly. □□□□□□□ v.

424 U.S. 409, 419 n.12 (1976) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)). Judicial immunity is immunity

2019 WL 1981416

from suit, not just immunity from the assessment of damages. Mifchell v. Forsyth, 472 U.S. S11, 526 (1985), The only two

circumstances in which judicial immunity does not apply is when he or she takes action “outside” his or her judicial capacity and

when the judge takes action that, although judicial in nature, is taken “in absence of jurisdiction.” Mireles, 502 U.S. at 11-12.

Absolute immunity extends to court clerks who perform tasks “* ‘which are judicial in nature and an integral part of the judicial

process.’ ” Proctor v. Quinn, No. 19-CV-833, 2019 WL 692935, at *2 (E.D.N.Y. Feb. 19, 2019) (quoting Rodriguez v. Weprin,

116 F.3d 62, 66 (2d Cir. 1997)), The court's “ ‘inherent power to control its docket is part of its function of resolving disputes

between parties’ and is thus ‘a function for which judges and their supporting staff are afforded absolute immunity.’ ” Jd.

(quoting Rodriguez, 116 F.3d at 66); and citing Pikulin v. Genzalez, No. 07-CV-0412 (CBA), 2007 WL 1063353, at *2 (E.D.N.Y.

Apr. 5, 2007) (finding that absolute judicial immunity extends to “the Clerk's Office activities of filing and docketing legal

documents”). However, a court clerk may not be entitled to absolute immunity where the clerk's refusal to accept the papers of

a litigant seeking to commence an action results in the deprivation of the individual's constitutional rights. Glass v. New York

Supreme Court Appellate Division, No. 1:17-CV-226, 2017 WL 9487181, at *3 (N.D.N.Y. Apr. 26, 2017) (citations omitted).

In determining whether the clerk's conduct in a particular case is “judicial” in nature, the court takes a “functional approach” and

allows the defendant absolute immunity when the clerk is performing a “discretionary act, or performing a duty that inherently

relates to resolving a dispute.” Vance v, State of New York Dep't of Corrections, No. 9:18-CV-748, 2018 WL 6047828, at *10

Nov. 19, 2018) (quoting Dzwonczyk v. Suddaby, No. 10-CV-0300, 2010 WL 1704722, at *6 (N.D.N.-Y. Apr. 28,

2010) (citing Rodriguez, 116 F.3d at 67) (internal quotation marks omitted)).

B. Application

Plaintiff's statements in this case are conclusory and essentially, he is suing the “clerks” because they would not file his poor

person status order between 2017 and 2019, At best, he alleges a delay in granting him poor person status because it appears that

finally took and filed plaintiff's order, and at the end of his complaint, plaintiff alleges that he “still” has not “received a

thing or any help from the granyted [sic] status.” (Compl. at 2) (emphasis added), It is unclear what plaintiff believes he should

have “received” or to what “help” he thinks he is entitled from the clerks beyond filing his order.

It is also unclear how plaintiff alleges that he was denied “access to courts” because he states that he filed his state law claims

in the Rensselaer County Supreme Court. (Compl. at 1). However, he claims he was denied his “rightful benefits,” and that

somehow the clerk's actions in delaying the filing of his poor person order were related to his homelessness between January

12, 2018 and April 24, 2018. Plaintiff claims that he had to choose between “the suit” or his housing, but he does not explain

why this is true or why this would be a denial of his constitutional rights. Plaintiff also states that the clerks made plaintiff pay

for his RJI “motion,” but that he was told that if he wrote a letter, he would get his money back.

*4 As it is written, plaintiff's complaint is too conclusory to state a claim against any of the clerks in this action, whether

named or unnamed,” and the court will recommend dismissal.

IV. Opportunity to Amend

A. Legal Standards

Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend

at least once; however, leave to re-plead may be denied where any amendment would be futile. Ru/folo v. Oppenheimer & □□□□□

987 F.2d 129, 131 (2d Cir, 1993).

Application

In this case, the court will recommend dismissal without prejudice, even though the court has serious doubts that plaintiff will

be able to amend his complaint to state a claim. However, because there are situations in which a clerk would not be entitled to

2019 WL 1981416

absolute immunity, and plaintiff in this case has failed to include enough facts for the court to make an accurate determination,

the court will recommend dismissal without prejudice to plaintiff submitting an amended complaint.

If the court adopts this recommendation, and plaintiff is afforded the opportunity to amend, he should be afforded forty-five

(45) days from the date of the order adopting this court's recommendation. Plaintiff should also be advised that if he files an

amended complaint, it must be a complete pleading which must supercede the original and may not incorporate any facts from

the original by reference.

WHEREFORE, based on the findings above, it is

ORDERED, that plaintiffs motion to proceed IFP (Dkt. No. 2) be GRANTED for purposes of filing, and it is further

RECOMMENDED, that the complaint be DISMISSED based on quasi-judicial immunity and for failure to state a claim

pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) and Gil) WITHOUT PREJUDICE to plaintiff filing an amended complaint, and it is

RECOMMENDED, that if the District Court adopts this recommendation, plaintiff be directed to file his amended complaint

or ask for an extension of time to do so within FORTY-FIVE (45) DAYS from the date of the District Court's order adopting

the recommendation, and it is

RECOMMENDED, that if plaintiff files an amended complaint within the appropriate time, the court return the proposed

amended complaint to me for initial review, and it is

RECOMMENDED, that if the court adopts this recommendation, and plaintiff fails to file an amended complaint or ask for

an extension of time to do so at the expiration of the forty-five (45) days, the complaint be dismissed with prejudice and the

case closed, and it is

ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on plaintiff by regular mail.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written

objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO

THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racetie, 984 F.2d

85, 89 (2d Cir. 1993\(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)

(1); Fed. R. Civ. P. 6(a), 6(e), 72.

All Citations

Not Reported in Fed. Supp., 2019 WL 1981416

Footnotes

I Defendant Bell has since passed away, and his estate's representative has been substituted as a party. (Dkt. Nos. 52,

71). Another defendant was joined to 16-CV-291, and there have been various other proceedings in that case, but those

details are not relevant to this action.

2 Although plaintiff states in this action that Magistrate Judge Stewart told plaintiff that the contract and defamation claims

“needed to be refiled in Supreme Court,” that is not exactly what Magistrate Judge Stewart said. His exact words were

that “[l]iberally construed, plaintiff might be attempting to make state law defamation and intentional interference with a

2019 WL 1981416

contract claims. Again, however, Plaintiff's vague and conclusory allegations fail to plausibly state such claims.” (Dkt.

No. 13 in 16-CV-291 at 4) (emphasis added). The court merely notes this for the record. Magistrate Judge Stewart's

dismissal and his language are not relevant to the findings herein.

3 Finally, the court must note that the United States Marshal would not be able to effect service of process on a “John

or Jane Doe” defendant. In order for plaintiff to pursue his claims against John Doe defendants, he would ultimately

be required to ascertain their identity. LaPoint v. Vasiloff, No. 5:15-CV-185, 2015 WL 1524437, at *4 (N.D.N.Y. Apr.

2, 2015).

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

2020 WL 1904088

KeyCite Yellow Flag

Declined to Extend by Broadwater v, County of Onondaga, N.D.N.¥., March LT, 2024

2020 WL 1904088

Only the Westlaw citation is currently available.

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

Michael JOYNER, Plaintiff,

¥.

COUNTY OF CAYUGA; Cayuga County Sheriff's Department: City of Auburn; Shawn |. Butler, Chief of

Auburn Police Department, as an Individual and in his official capacity; Cayuga County District Attorney's

Office; Jon E. Budelmann, as an Individual and in his capacity as District Attorney for Cayuga County;

and Anthony Spinelli, as an Individual and in his capacity as an Auburn City Police Officer, Defendants.

5:20-CV-60 (MAD/TWD)

Signed 04/17/2020

Attorneys and Law Firms

OF COUNSEL: JARROD W, SMITH, ESQ., OFFICE OF JARROD W. SMITH, 11 South Main Street, P.O. Box 173, Jordan,

New York 13080, Attorneys for Plaintiff.

OF COUNSEL: JEFFREY R. PARRY, ESQ., OFFICE OF JEFFREY R. PARRY, 7030 East Genesee Street, Fayetteville, New

York 13066, Attomeys for Plaintiff.

OF COUNSEL: FRANK W. MILLER, ESQ., GIANCARLO FACCIPONTE, ESQ., OFFICE OF FRANK W. MILLER. 6575

Kirkville Road, East Syracuse, New York 13057, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. District Judge:

I. INTRODUCTION

*1 On or about February 18, 2020, Plaintiff filed a complaint against Defendants City of Auburn, Shawn L. Butler, County of

Cayuga, Cayuga County District Attorney's Office, Jon E. Budelmann, and Anthony Spinelli, asserting eight claims pursuant

to 42 U.S.C. §§ 1983 and 1988, and state law. See Dkt. No. 5. Specifically, Plaintiffs complaint alleges the following causes of

action: (1) false arrest under the Fourth and Fourteenth Amendments; (2) malicious prosecution under the Fourth and Fourteenth

Amendments; (3) negligent failure to train or supervise; (4) state law false arrest; (5) stale law false imprisonment; (6) intentional

arid negligent infliction of emotional distress under New York State law: (7) negligence; and (8) deliberate indifference to

medical care under the Eighth Amendment. See Dkt. No. 5 at §/§ 40-114. Currenily before the Court is Defendants’ motion to

dismiss the complaint in its entirety. See Dkt, No, 9,

I, BACKGROUND

2020 WL 1904088

According to the complaint, on August 10, 2018, Plaintiff was the passenger ina vehicle that was driven by 140 Wall Street,

allegedly in violation of an order of protection for Linda Fitzsimmons and Lee Joyner, who both reside at that address. See

Dkt. No. 5 at {| 24-25. Plaintiff resides at 145 Wall Street, several houses down from 140 Wall Street, on the opposite side

of the street. See id. al | 25. Plaintiff was not the driver of the vehicle and had no control over how the driver was delivering

him to his home. See id.

On August 13, 2018, Plaintiff was arraigned on two felony complaints charging him with two counts of Criminal Contempt in

the First Degree based on the alleged violation of the order of protection. See ie. at 4) 22. At the conclusion of his arraignment,

Plaintiff was remanded to the Cayuga County Jail. See fd. Plaintiff claims that “Defendant police officer lacked the requisite

requirement of having probable cause to arrest the Plaintiff and did falsely arrest and imprison the Plaintiff.” /e/. at | 23.

On October 4, 2018, Defendant Jon E. Budelmann, in his capacity as Cayuga County District Attorney, presented Plaintiff's

charges to a grand jury, which “No Billed” the case. See id, at] 26. At this point, Plaintiff was released from custody. See ic.

During the fifty-three days during which Plaintiff “was being illegally imprisoned,” he slipped and fell at the Cayuga County

Jail. See id, at 9 31. According to Plaintiff, on August 31, 2018, a water pipe burst at the Cayuga County Jail near Plaintiff's

cell while he was already locked in for the night and sleeping. See id. at 4 32. Plaintiff was woken by a bursting water pipe

that was turned off by a Cayuga County Correctional officer, See id. at 33. “The first burst of the water pipe [occurred] when

the Cayuga County Correctional officer shut the water off between “12:00 midnight and 2:00 a.m.” fd. at 4 34. “Plaintiff was

woken by a bursting water pipe; and observed and heard that the correctional officer was going to turn off the water and clean

up the water spill. At that time, there was no water in Plaintiff's cell.” Jed.

*2 Unbeknownst to Plaintiff, water from the burst pipe went underneath his locked cell door “and flooded his room while he

was in bed and asleep.” Jd, at §] 35. “At around 6:30 am-7:00 am, Plaintiff got out of his bed to use the toilet in his cell. Plaintiff

slipped and fell on the wet floor of his cell. The water on the floor was all near the toilet in his cell. There was a huge puddle

of water between Plaintiff's bunk and the toilet in his cell.” /e/, at | 36. Plaintiff claims that he slipped and fell. hitting his head

and neck on his bunk, and his lower back on the floor, causing severe injuries. See id. at 37. Al the ime that Plaintiff had

fallen and injured himself, a second water leak had occurred in the pod in which he was being held. See id. at 4] 38. Plaintiff

claims that, as a result of the fall, he suffered a herniated disc in his neck and a lower lumbar strain, See fd. at 4 39. □□□□□□□□□

also claims that he suffers from numbing of his toes and finger tips. See id.

I. DISCUSSION

A, Standard of Review

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the

legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir, 2007) (citation omitted).

In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable

inferences in the pleader's favor. See A7S7 Comme'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted).

This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Igbal, 556 U.S. 662, 678 (2009)

(citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the

court may consider documents that are “integral” to that pleading, even if they are neither physically attached to, nor incorporated

by reference into, the pleading. See Mangiafico v. Blumenthal, 47\ F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time

Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead “a short and plain statement of the claim,” see Fed. R. Civ. P. 8(a)

(2), with sufficient factual “heft to ‘sho|w] that the pleader is entitled to relief],|’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

557 (2007) (quotation omitted). Under this standard, the pleading's “[fjactual allegations must be enough to raise a right of

relief above the speculative level,” see id. at 555 (citation omitted), and present claims that are “plausible on [their] face,” □□

2020 WL 1904088

at 570, “The plausibility standard is not akin to a ‘probability requirement,” but it asks for more than a sheer possibility that

a defendant has acted unlawfully.” /gba/, 556 U.S. at 678 (citation omitted). “Where a complaint pleads facts that are ‘merely

consistent with’ a defendant's liability, it “stops short of the line between possibility and plausibility of “entitlement to relief”

Id. (quoting [Twombly 550 U.S.] at $57, 127 S. Ct. 1955). Ultimately, “when the allegations in a complaint, however true.

could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558, or where a plaintiff has “not nudged [its] claims

across the line from conceivable to plausible, the| | complaint must be dismissed], |” □□□ at 570.

B. Documents Considered in Deciding Motion to Dismiss

In their reply to the motion to dismiss, Defendants submitted several documents in further support of their motion. See Dkt. No.

16-1, These documents include (1) the August 10, 2018 criminal complaint charging Plaintiff with Criminal Contempt in the

First Degree, (2) the order of protection that Plaintiff allegedly violated, (3) the affidavit of Linda Fitzsimmons that formed the

basis for Defendant's underlying criminal charge, and (4) the incident narrative report of Defendant Spinelli dated August 15,

2018 relating to the criminal complaint filed against Plaintiff. See fd. at 1-6.

*3 In deciding a motion to dismiss for failure to state a claim, the court considers the complaint. materials incorporated into the

complaint by reference, materials integral to the complaint, and facts that are capable of judicial notice. See DiFolco v. MSNBC

Cable L.L.C., 622 F.3d 104, 111 (2d Cir, 2010).

In the present matter, the Court finds that these documents are not properly considered at the motion to dismiss stage. The

Court acknowledges that there are cases in which courts have considered similar police records at the pleading stage. See

Betts v. Shearman, No. 12-cy-3195, 2013 WL 311124, *3 (S.D.N_Y. Jan, 24, 2013) (considering incident report and accusatory

instrument that “provide[{d] crucial details” about the plaintiff's prosecution), aff'd on qualified immunity grounds, 75) F.3d

78 (2d Cir. 2014); cf: Obilo v. City Univ. of City of N.Y, No. 01-cv-5118, 2003 WL 1809471, #4 (E.D.N.Y. Apr. 7, 2003)

(considering incident report and police complaint that the plaintiff had conceded were “implicitly” incorporated into his

conspiracy allegations). The better view, however, adopted by a majority of courts in our Circuit, is that these kinds of police

records are not “integral” to a false arrest complaint. See Bejaoui v. City of New York, No. 13-CV-5667, 2015 WL 1529633, *4—

5 (E.D.N_Y. Mar. 31, 2015) (noting disagreement and declining to consider extrinsic police reports); A/varez v. Cty. of Orange,

95 F. Supp. 3d 385, 394-95 (S.D.N.Y. 2015) (collecting cases}. A document is not “integral” simply because its contents are

highly relevant to a plaintiff's allegations, but only when it is clear that the plaintiff relied on the document in preparing his

complaint. See Global Network Commce'ns, Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir. 2006); Chambers v. Time

Warner, Ine,, 282 F.3d 147, 153 (2d Cir. 2002). Most typically, “the incorporated document is a contract or other legal document

containing obligations upon which the plaintiff's complaint stands or falls, but which for some reason ... was not attached to the

complaint.” Global Network Comme'ns, 458 F.3d at 157. “It must also be clear that there exist no material disputed issues of

fact regarding the relevance of the document.” /au/kner v. Beer, 463 F.3d 130. 134 (2d Cir. 2006).

Here, there is “no indication in the record that plaintiff relied on these documents in drafting the complaint.” A//yn v. Rocklane

No. 12-cv-5022, 2013 WL 4038602, *4 (S_D.NLY. July 30, 2013), affirmed, 646 Fed. Appx. 60 (2d Cir. 2016). To the

contrary, Plaintiff relies on his own perceptions and recollections, while only making passing reference to the criminal complaint

and order of protection. Furthermore, it is nol beyond dispute that the police report and narrative are a truthful description of the

police officer's basis to arrest Plaintiff. To accept the truth of the documents offered by Defendants at this stage would amount

to a premature determination that the arresting officers and the alleged victim are more credible than Plainuff. To make such

a determination at this stage would not be appropriate, and therefore the Court will not consider the facts adduced in these

documents. The Court will, however, take judicial notice of the existence of the criminal complaint, supporting affidavit, and

order of protection. See Williams v. City of New York, No, 14-cv-5123, 2015 WL 4461716, *1 (S.D.N.Y. July 21, 2015) (noting

that the court “may take judicial notice of the procedural history of plaintiff's criminal case, but not of the truth of the arresting

officers’ version of events”); see also Rihaudo v. Desimone, No. 3:18-cv-1190, 2019 WL 1906269, *4 (M.D, Pa. Apr. 5, 2019)

(holding that “even if judicial notice is taken of these documents, “a court may take notice of such documents only to establish

their existence and legal effect, or to determine what statements they contained ... not for the truth of the matters asserted’ ”’)

(quoting Fine v. ESPN, Inc., 11 F. Supp. 3d 209, 223 (N.D.N.Y. 2014)) (other citation omitted).

2020 WL 1904088

C. Monell and Supervisory Liability

*4 “Under the standards of Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ci. 2018, 56 L. Ed. 2d 611 (1978), a

municipality can be held liable under [42 U.S.C. § 1983] if the deprivation of the plaintiff's rights under federal law is caused

by a governmental custom, policy, or usage of the municipality.” Jones v Town of FE. Haven, 691 F.3d 72, 80 (2d Cir, 2012),

Liability under Section 1983 “is imposed on the municipality [only] when il has promulgated a custom or policy that violates

federal law and, pursuant to that policy, a municipal actor has tortiously injured the plaintiff.” Askins v. Doe No. 1, 727 F.3d

248, 253 (2d Cir. 2013). “Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior

basis for the tort of its employee.” Jones, 691 F.3d at 80. Thus. for a municipality to be held liable under Section 1983 for the

unconstitutional actions of its employees, “a plaintiff is required to plead and prove three elements: (1) an official policy or

custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d

189, 195 (2d Cir. 2007) (internal quotation marks omitted).

“Supervisory liability is a concept distinct from municipal liability, and is ‘imposed against a supervisory official in his individual

capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates,” □ Aveera v. Tkae.

No. 5:12-cy-264, 2013 WL 1414441, *4 (D. Vt. Apr. 8, 2013) (quoting Odem v, Matteo, 772 F. Supp. 2d 377, 403 (D. Conn.

2011)). Prior to the Supreme Court's decision in Ashcrofi v. Igbal, 556 U.S. 662 (2009), the Second Circuit required a plaintiff

to allege one of the following categories for supervisory liability under § 1983:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being

informed ofthe violation through a report or appeal, failed to remedy the wrong, (3) the defendant created

a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a

policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the

wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [persons] by failing

to act on information indicating that unconstitutional acts were occurring,

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

In order to succeed on his Mone// and supervisory liability claims, a plaintiff must first “identify obvious and severe deficiencies”

in the policies of the municipal and supervisory defendants and “show a causal relationship” between those deficiencies and his

alleged deprivations. Reynolds v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007). However, to the extent that a plaintiff premises his

claims on a failure to train or supervise, such failure “may constitute an official policy or custom [only] if the failure amounts

to ‘deliberate indifference’ to the rights of those with whom the city employees interact.” Wray, 490 F.3d at 195. Similarly, a

supervisory defendant is liable only for the creation or continuation of policy that leads to a pattern of unconstitutional conduct

or if he demonstrated deliberate indifference in failing to act on information that a pattern of unconstitutional conduct was

occurring. See Cofon, 58 F.3d at 873.

“To establish deliberate indifference a plaintiff must show that a policymaking official was aware of constitutional injury, or

the risk of constitutional injury, but failed to take appropriate action to prevent or sanction violations of constitutional rights.”

Jones, 691 F.3d at 81.

A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to

demonstrate deliberate indifference for purposes of failure to train [or supervise because] [without notice

2020 WL 1904088

that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have

deliberately chosen a training program that will cause violations of constitutional rights.

*5 Connick v. Thompson, 563 U.S, 51, 62 (2011) (quoting Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409, 117

5. CL 1382, 137 L. Ed, 2d 626 (1997)), “[W]hen city policymakers are on actual or constructive notice that a particular omission

in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately

indifferent if the policymakers choose to retain that program.” Jd. at 61 (citation omitted).

D. Cayuga County District Attorney's Office and Auburn Police Department

Plaintiffnames the Cayuga County District Attorney's Office as a named Defendant in this case. The caselaw is clear, however,

that a district attorney's office is not an entity subject to suit under 42 U.S.C. § 1983. See Michels v. Greenwood Lake Police

Dep't, 387 F. Supp. 2d 361, 367 (S.D.N-Y. 2005) (citing cases); Griffith v. Sadri, No. 07-CV-4824, 2009 WL 2524961, *8

(E.D.N.Y. Aug. 14, 2009). Similarly, Plaintiff has listed the Auburn Police Department as an

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