# Clark v. Hall

> District Court, N.D. New York · July 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11111390

## Case

- **Court:** District Court, N.D. New York
- **Decided:** July 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11111390

## How later opinions describe it (automated extraction)

- holding that prisoners lack standing to seek the issuance of an arrest warrant

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

BRIAN ANDREW CLARK, et al.,
Plaintiffs, No. 1:24-CV-01150
V. (MAD/PJE)
JOHN HALL, et al.;
Defendants.

APPEARANCES:
Brian Andrew Clark
Washington County Jail
399 Broadway
Fort Edward, New York 12828
Plaintiff pro se
Donald Leonard Clark
91 Morgans Lane
Comstock, New York 12821
Plaintiff pro se
Crystal Mabb
12 Chestnut Street
Fort Edward, New York 12828
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION & ORDER
|. Procedural History
Plaintiffs pro se commenced this action on September 19, 2024, with the filing of
a complaint. See Dkt. No. 1. On October 23, 2024, the Court administratively closed
the case with opportunity to comply with the filing fee requirement. See Dkt. No. 3. On
November 5, 2024, plaintiff Brian Andrew Clark (hereafter “plaintiff or “Clark”) filed a

motion for leave to proceed in forma pauperis (“IFP”) and an inmate authorization form.
See Dkt. Nos. 4, 5. The Court noted that plaintiff's IFP application was lacking a
signature and directed plaintiff to submit a signed copy. See Dkt. No. 6. On December
2, 2024, Clark filed an amended application for leave to proceed IFP. See Dkt. No. 7.
On January 10, 2025, plaintiff filed a letter motion seeking reargument, reconsideration,
and de novo review of Clark v. Tanner, et al., 1:22-CV-1264, which this Court dismissed
with prejudice in 2024, and to consider that case together with this action. See Dkt. No.
8. On January 17, 2025, the Court administratively reopened this case. On January 28,
2025, Clark filed a second letter requesting to reopen and reargue Clark v. Tanner, et
al.,1:22-CV-1264 and to consolidate that action with this case, as well a request for
appointment of pro bono counsel. See Dkt. No. 11.

On January 31, 2025, the Court issued a text order denying his request to reopen
and “reargue” 1:22-CV-1264 (DNH/DJS), Clark v. Tanner, et al. and to consolidate that
action with this one. See Dkt. No. 12. On March 6, 2025, Clark filed an amended
complaint. See Dkt. No. 13. As an amended complaint supersedes and replaces the
original complaint in its entirety, now before the Court is review of Clark’s in forma
pauperis application and amended complaint. See Dkt. Nos. 7, 13.
tri Il. IFP Application
The Court has reviewed Clark’s IFP application and concludes that he financially
qualifies to proceed IFP. See Dkt. No. 7. Clark is advised that granting IFP in this
action applies only to the filing fee; he is still required to pay for any other costs and fees

he may incur in this action, including, but not limited to copying fees, transcript fees, or
witness fees."
Ill. Standard of Review
A complaint must plead “enough facts to state a claim to relief that is plausible on
its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), to “allow[] the court
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At the pleading stage, the Court
must assume the truth of “all well-pleaded, nonconclusory factual allegations” in the
complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010)
(citing /qbal, 556 U.S. at 678). However, the Court need not accept as true “legal
conclusions.” /qbal, 556 U.S. at 678. A pro se complaint is entitled to special solicitude
must be liberally construed, meaning that “a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 2019) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).
Nevertheless, a district court may dismiss the complaint sua sponte if it
determines that it lacks subject matter jurisdiction or that the complaint is frivolous. See

m| FED. R. Civ. P. 12(h)(3); Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d
362, 363-64 (2d Cir. 2000) (per curiam); see Tyler v. Carter, 151 F.R.D. 537 (S.D.N.LY.
1993), affd, 41 F.3d 1500 (2d Cir. 1994). Even pro se plaintiffs must establish that the
Court has subject matter jurisdiction, either through federal question jurisdiction, which
occurs when a federal question is presented, 28 U.S.C. § 1331, or through diversity

1 The IFP Application was only signed by, and filed only on behalf of, Brian Clark.

jurisdiction, which is when the plaintiff and all defendants are of diverse citizenship and
the amount involved is greater than $75,000, 28 U.S.C. § 1332. See Hamm v. United
States, 483 F.3d 135 (2d Cir. 2007). “An action is ‘frivolous’ when either: (1) ‘the factual
contentions are clearly baseless, such as when allegations are the product of delusion
or fantasy’; or (2) ‘the claim is based on an indisputably meritless legal theory.”
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989) (additional internal quotation marks and
citations omitted). Further, a complaint that is “so confused, ambiguous, vaguef[,] or
otherwise unintelligible that its true substance, if any, is well disguised,” fails to comply
with Rule 8 [of the Federal Rules of Civil Procedure].” Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988); see Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
The Court is required to construe pro se pleadings liberally and interpret them to
raise the “strongest [claims] that they suggest.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotation marks and citations omitted). 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[.]’ Triestman, 470 F.3d at 477 (internal citations, quotation marks,
and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191-92 (2d Cir. 2008). An action is considered “frivolous” when the claims are based on
indisputably meritless legal theories. See Livingston v. Adirondack Beverage Co., 141

F.3d 434 (2d Cir. 1998) (internal quotation marks omitted). “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.” 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)).2
Pleading guidelines are set forth in the Federal Rules of Civil Procedure.
Specifically, Rule 8 provides that a pleading which sets forth a claim for relief shall
contain, inter alia, “a short and plain statement of the claim showing that the pleader is
entitled to relief.” FED. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the
claim being asserted so as to permit the adverse party the opportunity to file a
responsive answer, prepare an adequate defense and determine whether the doctrine

Of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999)
(internal quotation marks and citations omitted). Rule 8 also requires the pleading to
include “a short and plain statement of the grounds for the court’s jurisdiction” and
“a demand for the relief sought.” Feb. R. Civ. P. 8(a). Although “[nJo technical
form is required,” the Federal Rules make clear that each allegation contained in
the pleading “must be simple, concise, and direct.” /d. at 8(d).
Rule 8 “demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” /qba/l, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at
555). Thus, a pleading that “tenders naked assertions devoid of further factual
enhancement” does not suffice.” /d. (internal quotation marks and alterations
omitted). Allegations that “are so vague as to fail to give the defendants

2 Unless otherwise noted, the Court has provided Clark copies of the unpublished cases cited herein.

adequate notice of the claims against them” are subject to dismissal. Sheehy v.
Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (summary order). Indeed, a
complaint that fails to comply with these pleading requirements “presents far too
a heavy burden in terms of defendants’ duty to shape a 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).
Further, Rule 10 provides:
[a] party must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances. A later
pleading may refer by number to a paragraph in an earlier pleading. If doing
so would promote clarity, each claim founded on a separate transaction or
occurrence — and each defense other than a denial — must be stated in a
separate count or defense.
FED. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189
F.R.D. at 54 (internal quotation marks and citations omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in
the complaint as true and construe all reasonable inferences in the plaintiff's favor.”
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However,
“the tenet that a court must accept as true all of the allegations contained in a complaint
" is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
U.S. 622, 678 (2009). A court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility wnen the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” /qbal, 556 U.S. at 678 (citation omitted).
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.” /d. (citations omitted).
Ill. Discussion
A. Amended Complaint
Clark’s amended complaint is seventy pages in length, with the first eight pages
being a hand-written complaint, and the remaining pages being a variety of other
requests and motions for relief or documents that may have been filed in a county court
proceeding. See Dkt. No. 13. Following the portion laying out the facts and claims, the
amended complaint includes two pages that Clark titled, “Revision of Defendent [sic] to
Adding Plaintiffs” which lists twenty-four additional names.° See id at 9-10. Clark next
includes a page titled “Additional Defendants,” listing ten names and addresses or

partial addresses. See jd. at 11. Following this list is page entitled “Case Law” where
Clark provides two pages worth of case names and citations or partial citations, followed
by a two-page list of general and unexplained legal terms, statutes, and what appear to
be his thoughts. See jd. at 12-16. The caption for Clark’s complaint indicates that it is

3 From this heading, it is unclear if Clark intends these individuals to be additional plaintiffs or additional
defendants, especially as this page is separated from another list he labels as “additional defendants.”
Compare Dkt. No. 13 at 9 with Dkt. No. 13 at 11.

brought under “Civil Rights Act of 1871 42 USCS 1983, Amended Complaint 42 USC
§8§ 1985-1986.” Dkt. No. 13 at 1.
The Amended Complaint includes a document Clark labels as “Motioning Amicus
Curiae Relief Reargument or Reconsideration De Novo Review” where Clark, for a fifth
time,4 seeks this Court to reopen and review his case in Clark v. Tanner, No. 1:22-CV-
1264, which this Court dismissed with prejudice in May 2024. See Dkt. No. 13 at 39-
40.5 Clark also includes a document he entitles, “Motion for Summary Affirmace [sic.].”
under a caption that says, “United States of America, New York State Unified Courts,
Warren County County [sic] Court, Brian Andrew Clark, Crystal Mabb v. The People of
the State of New York.” Dkt. No. 13 at 25.
Clark’s amended complaint appears to challenge an unspecified criminal

conviction, allege conspiracies potentially relating to his criminal conviction, set forth
unspecified claims surrounding custody and visitation orders and/or a restraining order
involving his minor children, raise claims relating to the conditions of his confinement at
Warren County Correctional Facility and/or Washington County Correctional Facility,
and set forth unclear claims surrounding an ATV accident in 2010 or 2011 and a snow
mobile accident from 2011, including allegations of a conspiracy arising out of or as a

m| result of that accident. See generally Dkt. No. 13 at 1-5, 8. Clark also appears to be
seeking to bring a medical malpractice claim and potentially a conspiracy claim against

4 The undersigned is including Dkt. Nos. 8 and 11, in this action, and two similar requests he made on
the Clark v. Tanner, et al. docket.
5 Clark names as defendants the individuals he listed as defendants in the Clark v. Tanner, et al.. action,
specifically Nicholas Tanner (sued as Zachary Tanner F/K/A/ Nicholas Tanner), Huntington, Kenneth
Ryserdoph (sued as Nicholas Rysedorph, F/K/A/ Kenneth Ryserdoph), and Fildesen. See Clark v.
Tanner, No. 1:22-CV-1264 (judgment entered dismissing action with prejudice, May 10, 2024). In the
Amended Complaint, however, Clark does not forth any facts or claims against Nicholas Tanner, instead,
the Amended Complaint uses the name Zachary Tanner.

Hudson Headwaters Health Centers and/or Glens Falls Hospital, possibly on behalf of
himself and/or three other individuals. See Dkt. No. 13 at 8 (“Lawful abuse towards
Robert Carota drug overdose, mistreatment to Wendy Mylott, cruel treatment to Gerald
Clark 85 years old do not recensitate [sic] Glens Falls hospital violated severely his
diseased body.”).
Clark’s amended complaint is a difficult-to-follow stream of consciousness and
sets forth many claims and statements that he does not explain. See generally Dkt. No.
13. Specifically, Clark contends that “Warren County Judicial are discriminating,
disregarding the value of parent and children slandering my name in the media and
Courts. Intentionally neglecting receipt of 2019-2020 pardon. My informal feelings with
statement am being Attacked form measures Juvenile term 2003 Honorable Timothy
Green.” /d. at 2. Clark then states that he has “three children all under ages of
eighteen.” /d. He provides that “Matthew McKieghan Washington County public
defender successfully conducted omnibus result reducing Fort Edward Village
Retraining Order.© Which Judge Robert Smith is not following Rule of Law nor matter of
law Non-criminal and technically civil matter.” /d.
Clark also repeatedly references the dismissed-with-prejudice Clark v. Tanner, et

m| 1:22-CV-1456, case and says that it is evidence that he has “been battling
unlawfulness, unfairness, biasness, for years, all through Warren County Criminal
Justice. [sic] Robert Smith is breaching his promissory estoppel of unwanted restraining
order that is restricting parental rights next several constitutional violations, wrongful

8 is unclear if Clark wishes to proceed on any claims against this individual; however, the undersigned
notes that, generally, a public defender is not considered a state actor for purposes of Section 1983. See
Fisk v. Letterman, 401 F. Supp. 2d 362, 378 (S.D.N.Y. 2005) (citing cases).

jurisdictions, controversing [sic] a family court discretion.” Dkt. No. 13 at 1.” Clark
states, in apparent reference to the 1:22-CV-1456 case, “conclude off reasoning case
No. 1-22-CV-1264 was filed which was unfair,® Bias, frauded, corrupt. Violation of
Americans with Disabilities.” Dkt. No. 13 at 1.
Next, Clark contends that, on unspecified dates (on “multiple occasions”), District
Attorney Devon Anderson
insulted my intelligence, disregarded children in common with whom does
not ask for restraining order, fails to accept the positivity and or awareness
to any evidence which supports my favor leading inaccurate information
that’s (sic) wrongfully bouncing between Warren and Washington County.
| am being treated as some hardcore criminal.
Dkt. No. 13 at 3.
Clark also asserts that “Washington County is tampering with medical,

contradicting food and drug, manipulating medical fact finding. | have peanut allergies
medical multiple times refuse to do anything about.” Dkt. No. 13 at 3. He contends that
“the kitchen,” “for over three weeks peanut butter is being serve [sic] at dinner.” /d. “The
other statement is ‘don’t eat it’ or ‘give it away’ It’s only obvious retaliation being done
being the amount of grievances | filed, and pursing lawsuits.” /d. at 3. He states, “[alll
remedies are repeatedly exhausted.” /d.
Elsewhere in the complaint, Clark states,
Metal has been found in my meals at Washington County Jail C.O [sic]
Gebo, C.O [sic] Brockway, C.O [sic] Ferris and C.O. [sic] Deihl are witness
to that. Same Jail peanut Butter Allergies are intentionally neglected,
unprofessionally manipulated and served by jails [sic] kitches [sic]
malpraticed [sic] by intentional neglect of medical also part of network to

7 The Amended Complaint also references a case, “No-22-1456 Brian Andrew Clark v. United States, US
Claims Lexis 1515 Fed Cl July 7, 2023)[,]” but the Court cannot locate any case before this Court with this
case number or these named parties.
8 unclear to the undersigned if Clark intends to mean the dismissal was unfair or if he is referring to
the facts underlying that case.
10

Glens Falls Hospital and Hudson Headwaters health Centers. Where | am
banned due to the personal conflicts and life threatening cycle of
tendencies.
Id. at 8. Clark further alleges that
Misleading information stated as a juvenile the unlawfulness started 2010,
the retailiation [sic] started 2016. The repeats occur between Warren and
Washington County agencies stemming from 2010 Atv accident critically
injured ‘victim’ Brian Clark and 2011 snowmobile accident Gary Thomas
Clark. Lawful abuse towards Robert Carota drug overdose, mistreatment
to Wendy Mylott, cruel treatment to Gerald Clark 85 years old do not
recensitate [sic] Glens Falls hospital violated severely his deceased body.
Estate, inheritance, social security, financial veteran fraud has been done
and covered up. February 19, 2025 Beadell of Washington County Jail
misconduct and collaborated fraud of medical grievance and corrections
minimum standards.
Id. at 8.
Clark further alleges that

[t]he end of 2024 C.O. Hunter punched me in the side of the head for no
reason through the cell bars. A while later around thanksgiven [sic] C.O’s
[sic] Beaudette, M.Barber, Mcphee staged incident off C/O [sic]
VaillenCourt Lying that | threatened her. She wrote me a ticket once |
emailed my father about C.O [sic] VaillenCourt makes sexual gestures and
comments throughout her night shift tours. After about Ten minutes all
officers came flying in and confused me, screaming, spitting in my face to
the point | asked twice to get out my face. Then they Brutally harmed me.
When they were kicking and causing harm every targeted blow was to my
abdomen center and right and right side skull causing me to go
unconscious, All areas of that time fresh surgeries. Into 2025 C.O. Hunter
working nights consistently harasses me tapping on my cell with no reason
tri to awake me then farts, burps makes disgusting noises deliberately
beaming his light in my eyes causing convulsions and type seizures due to
the severity of multiple Brain injuries most crucial injury ATV accident man
critically injured in 2010. February 5, 2025 | again confronted C.O. Hunter
to Leave me alone. C.O. Hunter replied asking me if | ever heard of time
and place. Insinuations to threats. February 5, 2025 US District legal mails
tape was sliced before entering housing officer Ferris Unit. | informed Ferris
and informed C.O. Fischer, Law Library is randomly disabled. Legal mail is
often breached.

11

Dkt. No. 13 at 3.
Clark states,
since Judge John Hall conspiracy in Criminal Justice feeds off Warren
County. 2011 Warren County Corrections when inspector Barbosa was
conducting illegal acts, aided by Karl Mattison now Glens Falls Officer
whom coerced, intimadated [sic] Crystal Mabb fabricated charges and
disposition, aided also by Zachary Tanner, Fieldesan, C.O. Farmer, their
[sic] are other officers involved unfortunately being long ago and heath state
from 2010 accident being critically hospitalized by foul play on an atv, which
that is in the post star begining [sic] record showing conspiracy, unlawful,
unjust, discriminating actions my Criminal Justices. Parental and personal
decisions are being ignored unlawfully used.
Id. at 4.
Clark provides that in 2022,
SGT Thomas, SGT Fieldesan, C.O[.] Curits, C.O[.] Frank, C.O[.] Cole were
refusing medical attention that Glens Falls police excessively use wrongful
force of taser inflicting internal bleeding and additional medical long term
affects, mocking my pleas of agony, picking on me to the extent staging
2011 incidents Barbosa did to me. They came in my cell A-linear side
brutally harmed me, removed everything out of my cell, SGT Grey
Confinscated [sic] my legal work, Mental Health Records fabracated [sic]
misusing my freedom of speech about Russia and Ukraine.
Id. at 5. Clark further states that in 2019-2020,
SGT Howard, C.O[.] P. Bachem, LT. Bassette of Washington County Jail
Off a Lie and misinterpretation of a food tray being placed outside C-5H4
cell by C.O[.] Dolley lying where my cell was shut off during Covid for over
two weeks, officers are lying, conspiring cover up of abuse, depravation
and cruel acts are both retailiation [sic] and simply what whom | complain
about seem because being who they are can get away with next to
everything.
Id. at 5.
Clark also states that
Glens Falls City Police Department Karl Mattison covered and fabricated
criminal procedures by Zachary Tanner, Kenneth Ryserdoph conspirering
[sic] with Washington County Chief Durway, Sheriff Huntington, SGT
Howard C[.]JO. P[.] Bachem, multiple other officers. Sheriff Huntington

12

admitted his guilt of misconduct of abuse while a Fort Edward police
officer in front of a transport officer coming back to Washington County in
the garage from a spinal injury roughly August-September of 2024.
Dkt. No. 13 at 8.
Clark further contends,
[t]he acts and prosecutions and criminal justice have caused my oldest
[minor child’s name and birthdate omitted] to grow an unhealthy,
dangerous resentment and many other parent and child dysfunction that is
causing my first daughter numerous different category of harm that if |
Brian were not wrongfully charged criminal procedures as a family offense
non-violent and non-criminal charges to run on next to essential jeopardy
clauses, Warren and Washington County New York are mirroring the
crimes, my family names are being targeted by criminal justice of Warren
and Washington County presumably of 2003 juvenile term by Warren
County Judge Timothy Breen.
Dkt. No. 13 at 7. Clark also states
A Lisa Ricketts mother to Adam Ricketts and Evan Ricketts has caused an
enormous lie and disregard of a Birth. Lisa Ricketts has fabricated
documents resorting to aid banning. Lisa Ricketts is the mother to the two
Boys Adam J. Ricketts and Evan Ricketts both accused of 2011 Atv
accident critically injured Brian Clark of 100 Alpine Ave Queensbury, NY
12804. Criminal Justice have misreported information misleading other
agencies. Warren County Corrections every valuable incarceration.
Washington County Corrections 399 Broadway Fort Edward NY, 12828
both re-elect terms for Mr. Donald Trump is full inspiration to me.
Washington County election board are aware of the jail breaching and
tampering with legal mail of mine. Fort Edward Police Department and
Glens Falls City Police and caused current hernia off aorta asophogus [sic]
and Z-line Cheif [sic] Justin Durway Fort Edward failed to protect.
m|
Under a list of “case law” following the body of his complaint, Clark provides a
four-page, bullet-point list of case citations, interspersed within are the names of
statutes, legal standards or terms, legal standards arising out of case law, and
miscellaneous terms, including Monell v. Department of Social Services, Sherman Act,
Ku Klux Klan Act, “Monell Claim,” “Respondeat Superior,” “indemnification claim,”

13

“promissory estoppel,” “retaliation claim,” “jeopardy clause,” “personal decisions,”
“parental rights,” “fundamental substantive rights equal protections,” “ex post facto,” “de
novo,” “28 USCS § 1915(a)(3)(b)(4)(c)(d)(e)(1 )(F)(1)(g), “21 § USCS 848,” “18 USCS pt
ch 19 371, 373,” “21 USCS § 848 Continuing Criminal Enterprise,” “Tucker Act,” and
“Ineffective Assignment Counsels.” Dkt. No. 13 at 14-15.
B. Section 1915 Review of Amended Complaint
As a first threshold issue, the Amended Complaint is unsigned, by Brian Andrew
Clark or any of the other individuals Clark listed as plaintiffs in the original complaint or
on the lists of “additional plaintiffs” appended to the amended complaint. See Feb. R.
Civ. P. 11(a) (“Every pleading, written motion, and other paper must be signed... bya
party personally if the party is unrepresented.”). Second, although Brian Andrew Clark

names Donald Leonard Clark and Crystal Mabb as plaintiffs in the original complaint
and what appears to be a list of “additional plaintiffs” in the Amended Complaint, Dkt.
No. 13 at 9-10, as a pro se plaintiff who is not an attorney, Clark cannot represent other
plaintiffs in any form, including as a class representative,? and may represent only
himself. See lannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (“[B]ecause pro se
means to appear for one’s self, a person may not appear on another person’s behalf in

m| the other’s cause.”). As the Amended Complaint is not signed by these additional
individuals and does not set forth any claims specific to Donald Leonard Clark or Crystal
Mabb, it is recommended that plaintiffs Donald Leonard Clark and Crystal Mabb be
terminated from the action without prejudice.

® Clark stated, in his filing seeking to reopen/reargue the Clark v. Tanner, et al., case and seeking
counsel, “Therefore, criminal matters | bring civil class action or proper justice adjusting.” Dkt. No. 11 at 1.
Although this is indecipherable, the undersigned notes that to the extent Clark indicates an intent to
proceed as a class action, he is unable to represent anyone else’s interests.
14

As a final threshold issue, to the extent Clark references 1:22-CV-1264, Clark v.
Tanner, both in the body of his complaint and in appended exhibits, Dkt. No. 13 at 1, as
this Court has already informed plaintiff several times, both within this action and in
Clark v. Tanner, et al., he may not seek to consolidate, reopen, or reargue that case or
the claims therein. See Dkt. No. 12; 1:22-CV-1264, Clark v. Tanner, et al., Dkt. Nos.
123.
Clark’s amended complaint violates Fed. R. Civ. P. 8 and 10. First, Clark’s
amended complaint plainly fails to meet the requirements of Rule 10 in that it does not
divide its claims into numbered paragraphs, limited to a single set of circumstances and
is instead written in a stream-of-consciousness, without any reasonable organization.
See Feb. R. Civ. P.10(b). Further, Clark attempts to bring forth multiple, unrelated
_,|Claims in one action, rather than in separate actions, including seeking review of matters
relating to the conditions of his incarceration alongside matters that are entirely
unrelated to his incarceration.'° Next, the undersigned observes that Clark fails to set
forth the damages he seeks in association with this amended complaint. See FED. R.
Civ. P. 8(a)(3). In addition, Clark’s amended complaint is difficult to follow and fully fails
to meet Rule 8’s requirements of a short and plain state statement of the claim. See

m| FED. R. Civ. P. 8(a)(2). Although he, at times, provides general dates, Clark’s inclusion
of dates is sporadic. See generally Dkt. No. 13. Similarly, his disjointed facts make it
difficult to assess each defendants’ personal involvement in the alleged constitutional
violations. See id.

10 Clark’s claims relating to his conditions of confinement, if they are properly amended and allowed to
proceed, may be more properly addressed as a Division 9 matter, separate and apart from other, non-
incarceration-related claims.
15

Further, Clark’s proposed amended complaint is often conclusory and does not
provide sufficient factual bases for his allegations. Clark’s references to a 2010 or 2011
ATV accident and a separate snow mobile accident, a conspiracy arising out of a “2003
juvenile term,” being banned from Glens Falls Hospital, a restraining order that appears
to involve his children, and a variety of other disjointed claims of conspiracies involving
Washington and Warren Counties are nearly impossible to follow. See generally Dkt.
No. 13. Attempting to do so places “too heavy a burden” on the Court. Gonzales, 167
F.R.D. at 355. The Amended Complaint clearly does not amount to a “short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a),
nor does it “give fair notice of the claim being asserted” such that a defendant could “file
a responsive answer, prepare an adequate defense and determine whether the doctrine
res judicata is applicable.” Flores, 189 F.R.D. at 54.
It is not entirely clear from the amended complaint all of the individuals against
whom Clark intends to proceed. In his caption, he lists, “John Hall et al.” Dkt. No. 13 at
1. In the body of the amended complaint, Clark includes a variety of names, but he
does not always explain if he intends to name that individual or entity as a defendant or
what claims apply to that defendant. See generally Dkt. No. 13. In the body of the

m| amended complaint, Clark names Justin Durway,'' Huntington, Honorable Timothy
Breen, Matthew McKieghan, Judge Robert Smith, District Attorney Devon Anderson,
C.O. Hunter, C.O. Beaudette, M. Barber, Mcphee, C.O. Fischer, Inspector Barbosa,
Zachary Tanner, Sgt. Fieldesan, C.O. Farmer, Sgt. Thomas, C.O. Curtis, C.O. Frank,

11 The “additional defendants” page associates Justin Durway with “American Legion,” though in the
Amended Complaint, Clark states that Durway is with the Fort Edward Police Department and elsewhere
that he is “Washington County Chief.” Dkt. No. 13 at 8, 11.
16

C.O. Cole, C.O. P. Bachem, and Lt. Bassette, Lisa Ricketts. See generally Dkt. No. 13.
The “additional defendants” page adds Karl Mattison and P.A. Dr. Scott Miller, repeats
some of the individuals mentioned in the Amended Complaint, and omits others. See
Dkt. No. 13 at 11.
Although Clark lists several names on the “additional defendants” page, which
indicates that he intends those individuals to be defendants in that action, the amended
complaint does not include facts or allegations against some of these defendants. To
hold an individual liable for damages in a section 1983 action, Clark must allege that the
individual was “personally involved” in the constitutional violation of which he complains.
See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006); Wright v. Smith, 21 F.3d 496,
501 (2d Cir.1994) (“It is well settled in this Circuit that personal involvement of

_,| defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.”). Some defendants are not mentioned by name in either the
caption or within the body of the amended complaint at all or are mentioned very briefly
and without an explanation of how the individual is alleged to have violated Clark's
constitutional rights. See, e.g., Cipriani v. Buffardi, 9:06-CV-0889 (LEK/DRH), 2007 WL
607341, at *1 (N.D.N.Y. Feb. 20, 2007) (citation omitted) (“A complaint cannot be

mi| Maintained against a defendant who is listed in the caption, but against whom no facts
are alleged in the body of the complaint.”). Even for those defendants who Clark
identifies by name and provides some factual support as to their involvement in alleged
constitutional violations, '* Clark’s amended complaint largely fails to sufficiently
demonstrate defendants’ personal involvement. He references multiple defendants’

12 Excepting, perhaps claims against C.O. Hunter, see Dkt. No. 13 at 3-4.
17

actions collectively, lumping their conduct together. See, e.g., dkt. no. 13 at 4
(identifying Beaudette, Barber, and Mcphee in an incident of excessive force, but not
specifying which defendants took which actions, referring to “all officers” and “they’).
Although Clark provides some general dates, such as years, some of his
statements are undated; thus, for many of the allegations, the Court has no ability to
“| assess the timeliness of the events. See generally Dkt. No. 13. Some of Clark’s claims
that do have dates appear barred by the statute of limitations. “[I]n New York, the
statute of limitations for Section 1983 claims is borrowed from New York’s general
statute of limitations for personal injury actions, which is three years” from when the
plaintiff “Knows or has reason to know’ of the injury underlying the claim. Kane v. Mount
Pleasant Cent. Sch. Dist., 80 F.4th 101, 108 (2d Cir. 2023); Pearl v. City of Long Beach,

_,| 296 F.3d 76, 79 (2d Cir. 2002). As it relates to the conditions of his incarceration, Clark
refers to incidents from “2019-2020”; thus, because Clark commenced this action in
2024, any section 1983 claims relating to matters occurring in 2019-2020 or prior would
be untimely absent a showing of the tolling of the statute of limitations. Insofar as Clark
references incidents from 2003 and 2011, and is contending these incidents involve
violations of his constitutional rights and makes claims of conspiracies in connection

With those incidents, those claims would be also untimely absent some proof of tolling. '%
As for his condition of confinement claims, liberally reading the amended
complaint, Clark appears to be attempting to raise claims for (1) deliberate indifference
to his serious medical needs in violation of the Eighth Amendment against Cole, Tomas,
Fieldesan, Curtis, and Frank; (2) excessive force in violation of the Eighth Amendment

13 To the extent Clark references occurrences from 2022, 2024, and 2025, such claims would appear
timely, given that Clark commenced this action in September 2024. See Dkt. No. 13 at 3-5.
18

relating to (a) C.O. Hunter, at “[t]he end of 2024,” punching him in the side of the head
“for no reason”, (b) as against “officers”’* who “brutally harmed him’ in his cell “[a] while
later around thanksgiven [sic],” and against unidentified officers who “brutally harmed
me” in his cell, possibly in 2022, Dkt. No 13 at 3, 5; (3) cruel and unusual punishment in
violation of the Eighth Amendment as it relates to C.O. Hunter's alleged conduct of
“harassing him” with noises and shining his flashlight, allegedly causing “conclusions
and type seizures,” Dkt. No. 13 at 4; (4) retaliation in violation of the First Amendment
against unspecified corrections staff in connection with his filing of unspecified
grievances/ lawsuits, a e-mail to his father complaining about C.O. VaillenCourt, and his
“freedom of speech about Russia and Ukraine,” in the form of excessive force, serving
him an allergen, food tampering, C.O. Hunter's allegedly harassing conduct, and the

“slicing” of his “legal mails tape,” Dkt. No. 13 at 3-4, 8; and (5) failure to intervene as
against Gebo, Brockway, Ferris, and Deihl relating to the alleged food contamination,
Dkt. No. 13 at □□□ Clark appears to have set forth a timely, prima facie case for
excessive force in violation of the Eighth Amendment against C.O. Hunter as it relates
to him allegedly punching Clark “in the side of the head for no reason through the cell
bars” and engaging in conduct “causing convulsions and type seizures.” Dkt. No. 13 at

m| 3, 4. The remainder of his conditions of confinement claims fail to state a claim as

14 |t is not entirely clear whether Clark intends to bring such claims against Beaudette, Barber, and
Mcphee or other, unnamed officers. See Dkt. No. 13 at 3-4.
15 To the extent Clark wishes to proceed on claims relating to the conditions of his incarceration, although
not determinative of those claims proceeding at this stage given that exhaustion is an affirmative defense,
the undersigned does note that it is unclear whether he is alleging that he has exhausted his
administrative remedies as to each claim. See Jones v. Bock, 549 U.S. 199, 216 (2007) (“We conclude
that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to
specially plead or demonstrate exhaustion in their complaints.”).
19

written because they either do not properly set forth each defendants’ personal
involvement and/or fail to clarify the date of the alleged occurrences.
For example, as for Clark’s allegations that officers came into his cell and spit in
his face and “brutally harmed” him, it is not clear whether he is saying that Beaudette,
Barber, and Mcphee engaged in this conduct or other, unnamed officers. See Dkt. No.
13 at 3. It is also not fully clear when this incident occurred, ‘© and which officer was
personally involved in what misconduct. See id. Clark’s claims about food tampering
and being served an allergen also fail to state specific defendants’ personal involvement
as he alleges only that “Washington County” and “the kitchen” is serving him peanut
butter and failing to follow “medical orders.” /d. at 3. Insofar as Clark contends that
Gebo, Brockway, Ferris, and Deihl “are witnesses” to “metal” being “found in my meals
Washington County Jail,” it is possible he may be attempting to set forth a failure to
intervene claim; however, Clark does not provide when this allegedly occurred or any
supporting facts regarding the corrections officers’ alleged witnessing of such conduct.
See id. at 8.
Clark’s claims that at an unspecified time in 2022, Thomas, Fieldesan, Curtis,
Frank, and Cole refused him medical attention, possibly after “Glens Falls police
m| excessively use wrongful force of taser inflicting internal bleeding” and “mocked [his]
pleas,” came into his cell and “brutally harmed him,” removed “everything” from his cell,
including legal papers, also fails to suffice as pled. Dkt. No. 13 at 5. It is unclear which

16 Clark states, “[a] while later around thanksgiven [sic,]” but it is unclear if Clark is stating that this date
relates to an unclear “staged incident” involving Beaudette, Barber, and Mcphee” or whether he is
referring to the alleged cell attack. See Dkt. No. 13 at 3.
20

defendants engaged in what conduct'’ such that the Court properly assess each
defendants’ personal involvement. Arguably, plaintiff is attempting to set forth a claim of
Eighth Amendment excessive force, Eighth Amendment deliberate indifference to
serious medical needs, and possibly First Amendment retaliation. See id. It is unclear
what Clark is trying to say when he states, “mental health records fabricated. Misusing
my freedom of speech about Russia and Ukraine.” /d. As Clark’s allegations as to this
“2022” incident are factually unclear and fails to set forth each defendants’ personal
involvement, it does not meet the requirements of Rule 10.
Insofar as Clark references judges, specifically Judge Robert Smith and Timothy
Breen, '® even if Clark provided sufficient facts and coherently set forth any
constitutional claims against them, such claims are likely barred by (1) judicial immunity,
(2) the statute of limitations as he provides the dates of 2003 and 2011. See, e.g.,
Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/ATB), 2017 WL 8777370, at *8
(N.D.N.Y. July 7, 2017) (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam)
(“With minor exceptions, judges are entitled to absolute immunity for actions relating to
the exercise of their judicial functions.”; “Judicial immunity applies even when the judge
is accused of acting maliciously or corruptly.”)).
tri Insofar as Clark may seek to bring claims against District Attorney Devon
Anderson, even if Clark provided sufficient facts or set forth cognizable constitutional
claims, such claims are likely barred by absolute prosecutorial immunity. See Barr v.

1” The only specific personal involvement is Clark’s statement that “Sgt Gray confinscated [sic] my legal
work, mental health records.” Dkt. No. 13 at 3.
18 In his exhibits, which appear to be county court filings, Clark references “Ex-Judge John Hall” and
refers to matters that appeared to have occurred in 2011. See, e.g., Dkt. No. 13 at 4. With respect to
Honorable Timothy Breen, Clark discusses a juvenile term from 2003. Dkt. No. 13 at 2, 7.
21

Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler v. Pachtman, 424 U.S. 409,
430 (1976)); Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal
quotations and citation omitted) (holding that prosecutorial immunity encompasses
“virtually all acts, regardless of motivation, associated with [the prosecutor’s] function as
an advocate.”).
Insofar as Clark may be seeking review of his criminal conviction or sentencing
or contending that his prosecution, conviction, or sentencing violated his constitutional
rights, to the extent Clark may seek monetary damages, such claims, even if sufficiently
pleaded, would be barred by Heck v. Humphry, 512 U.S. 477, 486-87 (1994) unless
Clark can demonstrate favorable termination or that success on such claim would not
necessarily invalidate a criminal conviction. See, e.g., Wilkinson v. Dotson, 544 U.S.

_,| 74, 82 (2005); Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir.2014) (citations
omitted).
To the extent Clark may be seeking to proceed against Washington County
and/or Warren County, claims may only proceed against municipal entities if Clark sets
forth a Monell claim. “To set forth a cognizable claim for municipal liability under §
1983, a plaintiff must plead that a deprivation of his constitutional rights was ‘caused by
m|a governmental custom, policy, or usage of the municipality.” Dougal v. Lewicki, No.
1:23-CV-1167 (DNH/CFH), 2023 WL 6430586, at *10 (N.D.N.Y. Oct. 3, 2023), report
and recommendation adopted, 2023 WL 7013384 (N.D.N.Y. Oct. 25, 2023) (quoting
Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012), and citing Monell v. Dep't of
Soc. Servs. of City of N.Y., 436 U.S. 658, 690-91 (1978)). Clark’s complaint makes no
decipherable argument that his constitutional rights were violated, and the violation was

22

due to a specific municipal custom, policy, usage, or a failure to train or supervise that
rises to the level of deliberate indifference. See Dougal, 2023 WL 6430586, at *10; see
also Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (explaining
that, to state an official policy claim under Monell, the plaintiff “must do more than simply
state that a municipal policy . . . exists”). Clark contends that he is “wrongfully
bouncing between Warren and Washington County” and that Washington County is
“tampering with medical, contradicting food and drug, manipulating medical multiple
times refuse to do anything about.” Dkt. No. 13 at 3. He further contends that Glens
Falls police officers committed excessive force, Glens Falls Police and/or Washington
County staff failed to protect him from physical injury, and that officers of the Glens Falls
Police department fabricated unspecified claims against him and engaged in an

conspiracy “cover up” with Washington County officers. Dkt. No. 13 at 8. He also
makes unclear claims of “officers . . . lying, conspiring cover up of abuse, deprivation
and cruel acts.” /d. at 5. Clark alleges that “officers” are conspiring with Washington
County Chief Durway, Sheriff Huntington, Howard, Bachem, and “multiple other
officers.” Id. at 8. As Clark has failed to set forth a proper Monell claim, to the extent
Clark seeks to proceed against Washington and/or Warren Counties, such claims must

be dismissed for failure to state a claim.
Clark references having three minor children, appears to allege some kind of
interference with his parental rights and relationship with his children, and includes
several orders from Washington County Family Court relating to custody and visitation.
The amended complaint and its attachments indicates an intent for this Court to review
custody issues, yet this Court does not have jurisdiction to perform such review. See,

23

e.g., Dkt. No. 13 at 17-34. “Under the domestic relations exception . . . cases involving
divorce, alimony, and child custody remain outside federal court jurisdiction.” Bowman
v. Morris, No. 8:19-CV-97 (BKS/DJS), 2019 WL 5150196, at *5 (N.D.N.Y. Apr. 10,
2019), report and recommendation adopted, No. 8:19-CV-97 (BKS/DJS), 2019 WL
3759174 (N.D.N.Y. Aug. 9, 2019) (citing Marshall v. Marshall, 547 U.S. 293, 308
(2006)); Licata v. Kaplan, No. 16-CV-2928 (JMA/GRB), 2017 WL 6379606, at *11, n.7
(E.D.N.Y. Dec. 12, 2017) (quoting Sobel v. Prudenti, 25 F. Supp. 3d 340, 353 (E.D.N.Y.
2014) (“While the domestic relations exception is narrow, it applies generally to issues
relating to the custody of minors, and may also apply to civil rights actions directed at
challenging the results of domestic relations proceedings.”) (internal quotations
omitted)); see also Guichiardo v. Barrazza, No. 16-CV-1222, 2016 WL 3541547, at *3
_,|(E.D.N.Y. Jun. 23, 2016) (applying the domestic relations exception where the plaintiff
“style[d] some of her claims as raising constitutional issues, but the allegations stem
from a state domestic relations matter... .”). Thus, to the extent Clark’s amended
complaint can be interpreted as seeking review of any family court proceedings or
orders relating to his custody or visitation rights to his children, even if attempting to
raise constitutional claims, such claims may not proceed.
tri To the extent plaintiff names Lisa Ricketts, who he identifies as the mother of two
boys who were involved in an ATV accident from which he suffered injuries in 2011, and
“P.A [sic] Dr. Scott Miller, Hudson Headwaters Health Center,” it does not appear that
Lisa Ricketts, her children, or P.A./Dr. Scott Miller are state actors acting under the color
of state law or acting in concert with state actors in furtherance of committing a
constitutional act such that plaintiff would be able to set forth a viable section 1983 claim

24

against them. Private conduct, no matter how discriminatory or wrongful, is generally
beyond the reach of section 1983. See Gill v. Silver Invs. Inc., 413 F. Supp. 3d 123, 127
(E.D.N.Y. 2016) (citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999);
and citing Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S.
288, 295 (2001) (“state action may be found if, though only if, there is such a close
| nexus between the State and the challenged action that seemingly private behavior may
be fairly treated as that of the State itself’) (internal quotation marks omitted). Even if,
arguendo, Clark could set forth a prima facie argument as to how Ms. Ricketts, a private
party, could be found to acted under color of state law, he has failed to demonstrate
how she violated his constitutional rights or how an incident occurring in 2011 would not
be time barred. Similarly, even if Clark could demonstrate that Miller, a private party,
acting under the color of state law, Clark sets forth no facts regarding P.A./Dr.
Miller; thus, he has also failed to establish his personal involvement in any constitutional
violation or that such a claim would not be time barred. See generally Dkt. No. 13; see
also infra at 23 (noting that claims of medical malpractice have two-and-a-half year
statute of limitations and that there is no cause of action for medical malpractice under
section 1983).
tri To the extent Clark’s amended complaint makes a vague reference to “fraud,”
even if Clark had properly explained this claim, a plaintiff cannot, through a civil action,
seek the initiation of a criminal investigation or matter nor an individual’s prosecution.
See Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981) (holding that prisoners lack
standing to seek the issuance of an arrest warrant); Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the

25

prosecution or nonprosecution of another.”); McFadden v. Ortiz, 5:12-CV-1244
(MAD/ATB), 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (holding that there is no
private right of action to enforce state or federal criminal statutes). Thus, to the extent
Clark’s amended complaint can be liberally interpreted as attempting to seek the
initiation of an investigation or prosecution for fraud, such claim must be dismissed for
failure to state a claim.
Insofar as Clark refers to what appears to be multiple conspiracies, even if the
undersigned could make any factual sense of such claims or determine that such claims
are not time-barred, vague, conclusory, and general claims of conspiracy do not suffice.
See Walker v. Jastremski, 430 F.3d 560, 564 n.5 (2d Cir. 2005) (“[C]onclusory or
general allegations are insufficient to state a claim for conspiracy under § 1983.”);
_,| Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (“A complaint containing only
conclusory, vague, or general allegations of conspiracy to deprive a person of
constitutional rights cannot withstand a motion to dismiss.”). Further, to demonstrate a
conspiracy to deprive an individual of his constitutional rights, a plaintiff must first
demonstrate an underlying constitutional violation. See Romer v. Morgenthau, 119 F.
Supp. 2d 346, 363 (S.D.N.Y. 2000) (“A valid claim of conspiracy under § 1983 to violate

m| a Complainant's constitutional rights must contain allegations of (1) a conspiracy itself,
plus (2) actual deprivation of constitutional rights. A violated constitutional right is a
natural prerequisite to a claim of conspiracy to violate such right. Thus, if a plaintiff
cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim
of conspiracy to violate those rights.”) (citing Malsh v. Austin, 901 F.Supp. 757, 765
(S.D.N.Y. 1995)). As the majority of Clark’s amended complaint is difficult-at-best to

26

follow, whether there exists a potentially valid claim for a constitutional violation
connected to these claims of conspiracy cannot be discerned.
To the extent Clark may be attempting to bring a claim of medical malpractice on
behalf of himself and/or three individuals, including at least one who appears deceased,
not only are his claims entirely void of factual support, but Clark likely does not have
standing to bring such a claim on behalf of these individuals. Clark also fails to
demonstrate that such claims would not be barred by the two-and-a-half year statute of
limitations, and, further, the undersigned notes that medical malpractice claims‘ are not
actionable under section 1983. See N.Y. C.P.L.R. 214-a (McKinney 2009); Gordon v.
Magun, 83 N.Y.2d 881, 883 (1994); see generally Gonzalez v. Wright, 665 F. Supp. 2d
334, 346 (S.D.N.Y. 2009).
As noted, Clark’s amended complaint fails to meet the requirements of Rules 8
and 10 for the reasons set forth above, and, even where some of the facts and claims
can be deciphered, there are many additional reasons for why the amended complaint
must fail, discussed above. In sum, Clark does not demonstrate many of defendants’
personal involvement in the alleged constitutional violations; appears to seek to bring
claims against non-state actors; fails to properly set forth a Monel! claim against the

mi| Municipal entities; many claims appear time barred or their timeliness cannot be
assessed due to the lack of sufficient facts; claims relating to the custody/visitation of
his minor children are barred under the Domestic Relations Abstention Doctrine; insofar
as he may seek review of his criminal conviction or sentence and monetary relief, such
claims would be barred by Heck absent a showing of favorable termination; claims of

19 As opposed to deliberate indifference to serious medical needs claims.
27

conspiracy are factually devoid, conclusory, potentially untimely, and do not
demonstrate and underlying constitutional violation; and insofar as he may be asking
this Court to initiate a criminal investigation or prosecution, there exists no private right
of action to do so.
Although Clark’s complaint fully fails to comply with Rules 8 and 10 of the
‘dd wo . . tay
Federal Rules of Civil Procedure, given Clark’s pro se status and the Second Circuit's
direction that pro se plaintiffs should be provided an opportunity to amend before
dismissal of their action,2° the undersigned recommends providing Clark an opportunity
to amend, except as to his requests to reopen or reargue his dismissed with prejudice
case, Clark v. Tanner, et al.21_ See Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991)
(“[a] pro se complaint is to be read liberally. Certainly the court should not dismiss

without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.”); see also Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999) (“Although the language of § 1915 is
mandatory, stating that ‘the court shall dismiss the case’ in the enumerated
circumstances, we conclude that a pro se plaintiff who is proceeding in forma pauperis
should be afforded the same opportunity as a pro se fee-paid plaintiff to amend his

| Complaint prior to its dismissal for failure to state a claim, unless the court can rule out

20 Although it appears that Clark may have set forth a potentially valid claims relating to the non-time-
barred conditions of confinement claims as against C.O. Hunter for excessive force in violation of the
Eighth Amendment, because even the circumstances surrounding that claim/allegation are factually
lacking, the undersigned does not recommend permitting it to proceed as currently pled.
21 If the District Judge permits Clark to file a second amended complaint, it is recommended that plaintiff
be advised that the second amended complaint must be signed; he may only bring claims on his own
behalf, and not on behalf of any other individuals; any second amended complaint will supersede and
replace the amended complaint in its entirety and may not incorporate any portion of the amended
complaint by reference; he must not combine unrelated claims in one action; may only proceed with
claims that are not barred by the statute of limitations; and may not bring claims against individuals or
entities who are immune.
28

any possibility, however unlikely it might be, that an amended complaint would succeed
in stating a claim.”).

IV. Request for Counsel
Liberally read, Clark, as part of his request to reopen Tanner, appears to seek
appointment of pro bono counsel. He asked, “may | apply for public defender? | have a
lot of stress, medical life-threatening issues, mental health issues. Therefore, criminal
matters | bring civil class action or proper justice adjusting.” Dkt. No. 11 at 1.7? In its
January 31, 2025, Text Order, the Court interpreted this filing as a motion for counsel
and deferred Clark’s request until its review of the amended complaint. See Dkt. No.
12.

It is well-settled that there is no right to appointment of counsel in civil matters.
See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Title 28 of United States Code
Section 1915 specifically provides that a court may request an attorney to represent any
person “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Appointment of counsel
must be done carefully to preserve the “precious commodity” of volunteer lawyers for
those litigants who truly need a lawyer's assistance. Cooper v. A. Sargenti, Inc., 877

m| F.2d 170,172-73 (2d Cir. 1989).
First, Clark’s request for counsel fails to meet this Court’s standards for several
reasons. Before requesting appointment of counsel, a party must demonstrate that he
or she is unable to obtain counsel through the private sector or public interest agencies.
See Cooper, 877 F.2d at 173-74 (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d

22 Although plaintiff requests a public defender and refers to “criminal matters,” this is a civil action, and
public defenders are assigned only to criminal defendants, not civil plaintiffs.
29

Cir. 1986)). Clark does not contend that he has made any effort to locate counsel on
his own nor does he provide proof of such efforts, as is required. Second, as the
undersigned has here concluded supra, Clark has not yet demonstrated that his action
is likely “to be one of substance.” Terminate Control! Corp. v. Horowitz, 28 F.3d 1335
(2d Cir. 1994).
In Terminate Control Corp., the Second Circuit reiterated the factors that a court
must consider in ruling upon such a motion. In deciding whether to appoint counsel, the
court should first determine whether the indigent's position seems likely to be of
substance. If the claim meets this threshold requirement, the court should then consider
a number of other factors in making its determination. See Terminate Control Corp., 28
F.3d at 1341 (quoting Hodge, 802 F.2d at 61); Sawma v. Perales, 895 F.2d 91, 95 (2d
_,| Cir. 1990). Among these are
[t]he indigent's ability to investigate the crucial facts, whether conflicting
evidence implicating the need for cross-examination will be the major proof
presented to the fact finder, the indigent's ability to present the case, the
complexity of the legal issues, and any special reason . .. why appointment
of counsel would be more likely to lead to a just determination.
Hodge, 802 F.2d at 61. Further, where a plaintiff does not provide a Court with
evidence, as opposed to mere allegations, relating to his or her claims, such party does

m| Not meet the first requirement imposed by the Second Circuit relative to applications
seeking appointment of pro bono counsel. See Harmon v. Runyon, No. 96-CV-6080,
1997 WL 118379 (S.D.N.Y. Mar. 17, 1997). In addition, counsel is not required solely if
a plaintiff thinks appointment of an attorney is necessary or because counsel would be
more skilled in presenting his or her legal arguments. See Voymas v. Unger, No. 6:10-
CV-0645, 2011 WL 2670023, at *12-13 (W.D.N.Y. July 7, 2011) (holding that despite

30

the petitioner's “layman” status, the petitioner failed to demonstrate that (1) he was
“unable to present the facts relevant to disposition of his habeas petition or to
understand his legal position,” (2) “the legal issues in his case are so complicated as to
require the assistance of an attorney,” or (3) “appointment of counsel would lead to a
more just determination.”). Although Clark contends that he seeks counsel due to
“stress” and physical and mental health issues, he has not demonstrated that
appointment of counsel is warranted at this time. See Hodge, 802 F.2d at 61. Thus, to
the extent Clark’s informal request can be deemed a motion for counsel, that motion is
denied without prejudice to renew, at a future point, if Clark’s action is permitted to
proceed and Clark is able to demonstrate a change in his circumstances.
V. Conclusion

Wherefore, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff Brian Andrew Clark’s application for leave to proceed in
forma pauperis, Dkt. Nos. 4, 7, is GRANTED, and it is further
ORDERED, that plaintiff Brian Andrew Clark’s request for appointment of pro
bono counsel, Dkt. No. 11, on which the undersigned earlier deferred, is DENIED
without prejudice; and it is

RECOMMENDED, that plaintiff Brian Andrew Clark’s amended complaint, DKkt.
No. 13, be DISMISSED without prejudice and with opportunity to amend except that,
insofar as Plaintiff Brian Andrew Clark’s amended complaint seeks to reopen/reargue
his dismissed with prejudice case, Clark v. Tanner, et al., such attempt be DISMISSED
with prejudice and without opportunity to amend;?° and it is further

23 Although the undersigned recognizes that Clark cannot set forth a valid claim where there is a statute
of limitations bar, where he is attempting to sue someone who is immune from relief (including judges and
31

RECOMMENDED, that plaintiff Donald Leonard Clark and plaintiff Crystal Mabb
be terminated from the docket, without prejudice, as the amended complaint alleges no
cognizable claims on their behalf, they have not signed the amended complaint, and it
appears that plaintiff Brian Andrew Clark is attempting to bring claims on their behalf,
which is prohibited as he is a non-attorney pro se plaintiff; and it is further
RECOMMENDED, that, because the amended complaint does not set forth any
facts or allegations against certain individuals he listed in the original complaint, those
defendants be terminated from the docket, without prejudice, specifically: Bonnie Mylott,
Nancy Rafferty, Kenzie Rafferty, Sharon Hoffman, Veronica O'Dell, Raymond Garfield,
Nicholas Tanner, and Bill Mylot; and it is
ORDERED, that the Clerk of the Court serve this Report-Recommendation &

Order on plaintiff pro se in accordance with Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which to
file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
(14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,

prosecutors), insofar as he may be seeking criminal prosecution or investigation, attempts to bring section
1983 claims against non-state actors, among other deficiencies, and that many of Clark’s potential claims
may be more appropriately dismissed with prejudice, because Clark’s complaint is so confused, difficult to
follow, and lacking in both facts and clarity, it did not appear to the undersigned the best use of judicial
resources to attempt to parse and separate out claims that may be more appropriately be dismissed with
prejudice versus without. Instead, the undersigned recommends dismissal of the amended complaint in
its entirety without prejudice (excepting his attempts to reopen/relitigate Clark v. Tanner, et al.) with the
hope, however slim, that if Clark is permitted an opportunity to amend, with the guidance from this
Report-Recommendation & Order and the District Judge’s Order reviewing this Report-Recommendation
& Order, he will clarify the issues and either decline to proceed against certain defendants or decline to
replead claims with deficiencies or attempt to clarify such claims.
32

89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d
Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Feb. R. Civ. P. 6(a), 72.74
Dated: July 30, 2025
Albany, New York
fen
Paul J. Evangelista
U.S. Magistrate Judge

24 If you are proceeding pro se and are served with this Report-Recommendation & 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 & Order was mailed to you to serve and file objections.
See 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. fd. § 6(a)(1)(c).
33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11111390. Public record. Not legal advice.