# McNeil v. Van Houten

> District Court, N.D. New York · July 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11106557

## Case

- **Court:** District Court, N.D. New York
- **Decided:** July 22, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11106557

## How later opinions describe it (automated extraction)

- finding that clerks were entitled to quasi-judicial immunity for, infer alia, refusing an inmate's request for records on appeal
- 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)

## Opinion text

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— 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 Depa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11106557. Public record. Not legal advice.