Jarvis v. Duell

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________________________________

HOLLY JARVIS,

Plaintiff,

v. 5:25-CV-843

(LEK/MJK)

PROBATION OFFICER JASON DUELL,

and PROBATION OFFICER PHIL PHILBRICK

Defendants.

_____________________________________________________________________

HOLLY JARVIS, Plaintiff, pro se

MITCHELL J. KATZ, U.S. Magistrate Judge

TO THE HONORABLE LAWRENCE E. KAHN, Senior U.S. District Judge:

ORDER & REPORT- RECOMMENDATION

Plaintiff, Holly Jarvis, commenced this action on June 27, 2025, by filing a

Complaint (“Compl.”), and moving for leave to proceed in forma pauperis

(“IFP”). (Dkts. 1, 2). Also, attached to the Complaint is a “Subpoena For

Employment Records Of Philbrick & Duel” (Subpoena”). (Dkt. 1-2). The Clerk

sent the Complaint, Subpoena, and IFP application to this Court for review. (Dkts.

1, 2).1

1 This case is related to 5:25-CV-228 (LEK/MJK) and 5:25-CV-645 (LEK/MJK), both pending

in the Northern District of New York.

I. BACKGROUND

Jarvis alleges that she submitted a FOIL request seeking surveillance footage

within one month of an alleged incident at Funny Bone Comedy Club. (Compl.,

Dkt. 1, at ¶ 8). Jarvis further alleges that despite her request, Defendants have not

provided or preserved the requested surviellance footage. Finally, Jarvis alleges

that Defendants, the Syracuse Police Department, and Funny Bone Comedy Club

had a “joint responsibility to preserve this critical evidence, knowing its relevance

to both criminal and civil claims.” (Id.).

II. IFP APPLICATION

Jarvis declares in her IFP applications that she is unable to pay the filing fee.

(Dkt. 5). After reviewing the IFP application, this Court finds that Jarvis is

financially eligible for IFP status.

III. STANDARD OF REVIEW

In addition to determining whether a plaintiff meets the financial criteria to

proceed IFP, courts must also review the sufficiency of the allegations in the

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

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

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

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

(iii).

When determining whether an action is frivolous, courts must consider

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

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

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

actions is appropriate to prevent abuses of court process as well as to discourage

the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505

F.2d 802, 804 (8th Cir. 1974).

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

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

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

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

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

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

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

IV. DISCUSSION

A. Fed. R. Civ. P. 8

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

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

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

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

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

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

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

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

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

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

Cole v. Smrtic, No. 1:24-CV-847, 2024 WL 4870495, at *2 (N.D.N.Y. 2024)

(quoting Fed. R. Civ. P. 8(d)). Allegations “so vague as to fail to give the

defendants adequate notice of the claims against them” are subject to dismissal.

Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (summary order).

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

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

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 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.” Ashcroft,

556 U.S. at 678 (cleaned up).

Here, the Complaint is completely devoid of any allegations, specific or

otherwise, regarding what, if any, activities Defendants engaged in giving rise to

Jarvis’s claims against them. As pleaded, there is no logical connection between

Jarvis’s allegations about her FOIL request and her purported claims against

Defendants. Stated differently, the Complaint is a “unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678. And that is not

enough to state a claim. See, e.g., Lesson v. Jane Doe, No. 1:25-CV-00188

(AMN/TWD), 2025 WL 1291533 (N.D.N.Y. May 5, 2025) (Adopting Report and

Recommendation which dismissed a plaintiff’s excessive force claim because that

plaintiff failed to “identify what force” was used against him or “how it was

excessive.”). The Court therefore recommends that the Complaint be dismissed

without prejudice and with leave to amend, except as to any claims directly related

to Jarvis’s FOIL request which, for the reasons more fully set forth below, are

dismissed without prejudice and without leave to amend. If the District Court

accepts this recommendation, and if Jarvis chooses to file an amended pleading,

she is directed to plead sufficient facts giving rise to each claim against the named

defendants.

B. New York Freedom of Information Law

Jarvis’s claims emanate from her alleged inability to obtain information

under the New York Freedom of Information Law (“FOIL”), N.Y. Pub. Off. L. §

89 et seq., which allows individuals to request disclosure of records collected by

New York state agencies, subject to certain statutory exemptions. If an initial

request is denied, the requester may appeal the denial first to the “head, chief

executive or governing body” of the entity or agency in possession of the

documents, and, thereafter, by commencing a special proceeding in New York

State courts under Article 78 of the New York Civil Practice Law and Rules. N.Y.

Pub. Off. L. § 89(4)(a) and (b). Federal courts do not have subject matter

jurisdiction to enforce state laws regarding public access to official records. See In

re Shelton, No. 06-CV- 6132, 2006 WL 3463425, at *2 (E.D.N.Y. Nov. 30, 2006)

(“To the extent that [the plaintiff] seeks information from state agencies . . ., this

Court does not have jurisdiction over requests made pursuant to the state FOIL.”).

The Court therefore recommends that any claims specifically arising out of

Plaintiff’s FOIL request be dismissed without prejudice and without leave to

amend. Those claims, if not time barred, must be pursued in a different forum.

C. Immunity

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

duties.” Detleelis v. Sharhaugh, 919 F.3d 161, 164 (2d Cir. 2019) (cleaned up).

But the type of immunity afforded depends on whether the probation officer’s

conduct was judicial or prosecutorial. Id. “Probation officers are entitled to

absolute immunity from suit in connection with their preparing and furnishing

presentence reports to the court.” Id. (cleaned up). “They are also entitled to

absolute

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

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

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

report or recommending the issuance of an arrest warrant. Id.

Because the Complaint lacks any specific allegations against Defendants, the

Court cannot determine whether they are immune from suit. The Court therefore

recommends that the Complaint be dismissed without prejudice and with leave to

amend.

D. Subpoena Request

Plaintiff’s request for a subpoena is denied for two reasons. First, because

the Court is recommending that the Complaint be dismissed in its entirety, there is

no case in which a subpoena may be issued. Second, Plaintiff’s Subpoena is

defective since it does not comply with Fed. R. Civ P. 45.

V. OPPORTUNITY TO AMEND

Generally, before the court dismisses a pro se complaint or any part of the

complaint sua sponte, the court should afford a plaintiff the opportunity to amend

at least once; however, leave to re-plead may be denied where any amendment

would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.

1993). Futility is present when the problem with plaintiff’s causes of action is

substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000) (citation omitted).

Here, the Court recommends that Jarvis be granted leave to file an amended

pleading that does not contain any claims directly related to her FOIL request.

Further, if the District Court approves this Report-Recommendation and allows

Jarvis to submit a proposed amended complaint, Jarvis should be warned that any

amended pleading must be a complete and separate pleading. Jarvis must state all

her claims in the new pleading and may not incorporate by reference any part of

her original complaint.

WHEREFORE, based on the findings above, it is

ORDERED, that Plaintiff’s motion to proceed IFP (Dkt. 2) is GRANTED;2

and it is further

RECOMMENDED, that the District Court dismiss Plaintiff’s Complaint

WITHOUT PREJUDICE and WITH LEAVE TO AMEND except as to any

claims directly related to Plaintiff’s FOIL request which should be dismissed

WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND; and it is

further

2 The court notes that although Plaintiff’s IFP application has been granted, Plaintiff will still

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

limited to copying and/or witness fees.

ORDERED, that Plaintiff's request for the issuance of a subpoena is

DENIED AS MOOT AND WITHOUT PREJUDICE, and it is further

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

Report-Recommendation on Plaintiff by regular mail.’

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

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

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

THIS REPORT WITHIN 14 DAYS WILL PRECLUDE APPELLATE

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

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

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

Dated: August 26, 2025

U.S. Magistrate Judge

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

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

2024 WL 4870495 Cir. 2004).

Only the Westlaw citation is currently available. 2 Plaintiff is advised that, although he has been

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

granted IFP status, he is still required to pay all fees

Matthew H. COLE, Plaintiff, and costs he may incur in this action, including,

but not limited to, copying fees, transcript fees, and

v.

witness fees.

Honorable Michael W. SMRTIC, et al. Defendants.

No. 1:24-CV-00847 (MAD/CFH)

II. Initial Review

|

Signed November 21, 2024

A. Legal Standards

Attorneys and Law Firms

Section 1915 of Title 28 of the United States Code directs

MATTHEW H. COLE, 271 Market Street, Amsterdam, New that, when a plaintiff seeks to proceed IFP, “the court shall

York 12010, Plaintiff pro se. 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

REPORT-RECOMMENDATION & ORDER 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

CHRISTIAN F. HUMMEL, United States Magistrate Judge determine that a plaintiff may properly maintain his complaint

before permitting him to proceed with his action.

I. In Forma Pauperis

Where, as here, the plaintiff proceeds pro se, “the court

*1 Plaintiff pro se Matthew H. Cole (“plaintiff”) must construe his submissions liberally and interpret them

commenced this action (No. 1:24-CV-00623) on May 6, to raise the strongest arguments that they suggest.” Kirkland

2024, by filing a complaint. See Dkt. No. 1 (“Compl.”). v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)

On September 26, 2024, plaintiff submitted what the Court (per curiam) (internal quotation marks omitted); see also

construes to be a supplement to the complaint.1 See Dkt. No. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As

7. In lieu of paying this Court's filing fees, he submitted an the Second Circuit stated,

application for leave to proceed in forma pauperis (“IFP”).

There are many cases in which we have said that a pro

See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP

se litigant is entitled to “special solicitude,” that a pro se

application and determines that he financially qualifies to

litigant's submissions must be construed “liberally,” and

proceed IFP.2 Thus, the Court proceeds to its review of the

that such submissions must be read to raise the strongest

complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also arguments that they “suggest[.]” At the same time, our

submitted for the Court's review a Pro Se Application for cases have also indicated that we cannot read into pro se

Permission to File Electronically and a Motion to Appoint submissions claims that are not “consistent” with the pro

Counsel. See Dkt. Nos. 4, 5. se litigant's allegations, or arguments that the submissions

themselves do not “suggest,” that we should not “excuse

1 The submission includes a letter addressed to frivolous or vexatious filings by pro se litigants,” and that

District Judge D'Agostino, titled, “Requirements pro se status “does not exempt a party from compliance

for Cases Removed From State Court,” Dkt. No. with relevant rules of procedural and substantive law[.]”

7; a receipt from Montgomery County Clerk dated

December 8, 2022; and a “Notice of Claim” with *2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

the caption of Cole v. County of Montgomery, 477 (2d Cir. 2006) (citations and footnote omitted); see also

dated December 7, 2022. See Dkt. No. 7. The Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92

undersigned has reviewed this submission in (2d Cir. 2008).

pleadings has its limits, because pro se pleadings still must (internal quotation marks and citations omitted). A complaint

comply with ... the Federal Rules of Civil Procedure [(‘Fed. that fails to comply with the pleading requirements “presents

R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 far too a heavy burden in terms of a defendant's duty to

(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) shape a comprehensive defense and provides no meaningful

(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). basis for the Court to assess the sufficiency of their claims.”

Pleading guidelines are provided in the Federal Rules of Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As

Civil Procedure. Specifically, Rule 8 requires the pleading to the Second Circuit has held, “[w]hen a complaint does not

include: comply with the requirement that it be short and plain, the

court has the power, on its own initiative ... to dismiss the

(1) a short and plain statement of the grounds for the court's complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.

jurisdiction ...; 1988) (citations omitted). However, “[d]ismissal ... is usually

reserved for those cases in which the complaint is so confused,

(2) a short and plain statement of the claim showing that

ambiguous, vague, or otherwise unintelligible that its true

the pleader is entitled to relief; and

substance, if any, is well disguised.” Id. (citations omitted).

(3) a demand for the relief sought...

*3 This Court also has an overarching obligation to

FED. R. CIV. P. 8(a). Although “[n]o technical form is determine that a claim is not legally frivolous before

required,” the Federal Rules make clear that each allegation permitting a pro se plaintiff's complaint to proceed. See, e.g.,

contained in the pleading “must be simple, concise, and Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d

direct.” Id. at 8(d). “The purpose ... is to give fair notice 362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where

of the claim being asserted so as to permit the adverse ‘the claim is based on an indisputably meritless legal theory

party the opportunity to file a responsive answer, prepare an [such as] when either the claim lacks an arguable basis in

adequate defense and determine whether the doctrine of res law, or a dispositive defense clearly exists on the face of the

judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-

54 (N.D.N.Y. 1999) (internal quotation marks and citations MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)3

omitted). Allegations that “are so vague as to fail to give the (quoting Livingston v. Adirondack Beverage Co., 141 F.3d

defendants adequate notice of the claims against them” are 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490

subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal

(2d Cir. 2009) (summary order). theory ... or factual contentions lack an arguable basis.”).

Further, Fed. R. Civ. P. 10 provides: 3 Any unpublished cases cited within this Report-

Recommendation & Order have been provided to

plaintiff.

[a] party must state its claims or

defenses in numbered paragraphs,

each limited as far as practicable to B. Complaint

a single set of circumstances. A later

pleading may refer by number to Plaintiff's civil cover sheet indicates that he seeks to bring this

a paragraph in an earlier pleading. action pursuant to “Title U.S.C. 18 Section 241, Conspiracy

If doing so would promote clarity, Against Rights & Title U.S.C. 18 Section 242 Deprivation

each claim founded on a separate of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil

transaction or occurrence – and each cover sheet further provides that his cause of action involves,

defense other than a denial – must be “Violation of Due process, Speedy Trial Rights, Ineffective

stated in a separate count or defense. Assistance of Counsel. I feel I am being targeted for being

black and gay.” Id.

FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] Plaintiff's form complaint checks the box indicating that

he seeks to bring this case pursuant to 42 U.S.C. § 1983.

complaint asking in “what federal constitutional or statutory

right(s) do you claim is/are being violated by state or local *4 Petitioner seeks reinstatement

officials,” plaintiff responds, “Due Process, 30.30 Speedy of driving priveldges [sic], and 10

Trial Violation, Ineffective Assistance of counsel.”4 Id. In million dollars for damages caused by

response to a question asking him to explain “how each conflict of interest, deliberate violation

defendant acted under color of state or local law,” plaintiff of Due Process, Speedy Trial rights,

states “Each judge deliberately denied me due process, and Ineffective assistance of counsel,

refused to look into the paperwork to see that i was improperly malice, Brady Violation, Petitioner

denied my speedy trial rights. It was a tean [sic] effort. claims deliberate misconduct and

The ADA/Special Prosecutor withheld potential exculpatory malice in Montgomery County Court,

material which was usd [sic] against me. All mentioned the Saratoga Disrict Attorney's Office,

actions were done and upheld even after I showed federal law and the Supreme Court Appellate

with supportive case law as a pro se litigant.” Id. Division Third department. ** This is

subject to change if an attorney agrees

4 Although plaintiff generally references ineffective to represent.

assistance of counsel, Compl. at 4, he does not

name any attorney who may have represented

him. Any claims against the prosecutor would Compl. at 5. Although he typed his name, plaintiff does not

not be considered ineffective assistance of counsel sign the complaint where a signature is indicated. See id. at 8.

because Mr. Maxwell, as the prosecutor, was not

plaintiff's attorney. Plaintiff provides in his supplement that he “removed this

action to district court asserting jurisdiction pursuant to 42

Plaintiff provides that his “case is still on appeakl [sic] in

U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states

Appellate Court Third Department. I feel they are guilty,

that he removed this case from Montgomery County Supreme

or part of what I call a scandal. I went to them from the

Court. See id. He states that he seeks or sought the removal

very start with a complaint to the grievance committee,

because he was told he was “not guarantee counsel” at the

where they denied any wrongdoing. It must be ok to violate

state, but that “[i]n Federal Court, there is that option, pending

Constitutional rights there. This is from March 2019 to

qualification, and I am told, if a lawyer agrees to take it, then

present” Id.

I really have something. I am in dire need of counsel.” Id.

In response to a question that asks plaintiff to state the facts

Plaintiff states, “[t]he ineffective assistance of counsel and

underlying his claims, plaintiff states, “Please see attached

The County Court are a matter already mentioned in the

Article 78 that is attached. It was dismissed being in the wrong

appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my

court, but is on point.” Id. at 4. Plaintiff did not provide the

conviction, I allege judicial and prosecutorial misconduct,

Court with any such attachment and has not submitted any

and ineffective assistance of counsel × 4. That is why I am

Article 78 materials. See Compl., Dkt. No. 7.

pro se. I had to protect myself when appointed counsel did

not. It also went through a couple judges which is why they

In response to the form complaint's question asking about

are mentioned in the preliminary complaint/paperwork, and

any injuries suffered as a result of the conduct he complains

why I mention bias.” Id. Plaintiff states he can “prove each

of, plaintiff states, “Sever [sic] depression over 20 years,

irreperable [sic] harm, defamation of charcter [sic] by

thing I saw not just with my words, but with transcripts5 from

arguments not legally allowed to give. Loss of income, the County Court, and the Adult Drug Court.” Id. Plaintiff

inability to gain and keep employment, mental trauma, refers to being drug free for four and a half years and having

instilled disbelief in justice in the legal system, familial academic success in college. Id. at 3. He states that he wishes

traumam [sic] due to my legal battles.” Id. Indicating the relief this Court to hear his case because he believes he will not

sought, plaintiff states “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

(AMN).” Id. or sentence invalid, a § 1983 plaintiff must prove that

the conviction or sentence has been reversed on direct

5 Plaintiff did not provide any transcripts. 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

C. Discussion6 of habeas corpus.” Id. at 486-87. The court further held

that “[a] claim for damages bearing that relationship to

6 As a courtesy, the Court has provided plaintiff with a conviction or sentence that has not been so invalidated

is not cognizable under § 1983.” Id. at 487 (emphasis in

copies of any unpublished cases cited within this

original).

Report-Recommendation & Order.

[ ]

1. Rule 8 Thus, under Heck and its progeny, if a conviction has not

been invalidated previously, a Ҥ 1983 action is barred ...

As a threshold issue, plaintiff's complaint fails to meet the

no matter the target of the prisoner's suit ... if success in

requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He

that action would necessarily demonstrate the invalidity

does not provide a short and plain statement of the claim

of confinement or its duration.” Wilkinson v. Dotson, 544

demonstrating why he is entitled to relief. Although he

U.S. 74, 81-82 (2005) (emphasis in original).

makes general references to both an Article 78 proceeding

and a criminal proceeding and unexplained references to Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024

“Due Process, 30.30 Speedy Trial Violation, Ineffective of WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-

Counsel,” he does not provide factual support or context. recommendation adopted sub nom. Ali v. Dow, No. 8:24-

Thus, his complaint does not provide “fair notice” to CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)

defendants of the claims against them. See FED. R. CIV. P. (quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),

8(a)(2). 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)).

2. Heck v. Humphrey

Plaintiff has failed to demonstrate that any criminal charge(s),

However, there are several substantive concerns that further conviction, or sentence has been “reversed on direct appeal,

lead the undersigned to recommend dismissal. First, in expunged by executive order, declared invalid by a state

referencing to “Due Process, 30.30 Speedy Trial Violation, tribunal authorized to make such determination, or called into

Ineffective of Counsel” and explicitly referencing a criminal question by a federal court's issuance of a writ of habeas

conviction, it is clear that plaintiff is attempting to seek corpus.” Zografidis, 2022 WL 21756775, at *7. Although

some kind of review of a criminal proceeding or conviction. plaintiff's complaint wants for detail, the undersigned can

See Compl. at 3. Plaintiff also accuses all named judges clearly determine that plaintiff seeks review of his criminal

of denying him due process and contends that an unnamed proceedings, conviction, and/or sentence. The claims plaintiff

“ADA/Special Prosecutor withheld potential exculpatory seeks to pursue relate to allegations that he was denied

material which was usd [sic] against me.” Compl. at 4. due process, denied speedy trial rights, and experienced

Plaintiff also references a conviction. See Dkt. No. 7 at 4. ineffective assistance of counsel. Accordingly, plaintiff's

Such claims would be barred by Heck v. Humphrey. claims are barred by Heck unless and until he can demonstrate

favorable termination of his criminal conviction.7

*5 As this Court, citing the District of Connecticut, has set

forth: 7 The undersigned recognizes that claims that are

In Heck, the Supreme Court held that in order for a determined to be barred by Heck are dismissed

plaintiff “to recover damages for allegedly unconstitutional without prejudice. However, the undersigned has

conviction or imprisonment, or for other harm caused by recommended dismissal with prejudice because

immune from relief. Accordingly, the undersigned curiam)). “Judicial immunity has been created for the public

is recommending dismissal of the claims based on interest in having judges who are ‘at liberty to exercise

these immunities, rather than a Heck dismissal. The their functions with independence and without fear of

undersigned has included the Heck review for sake consequences.’ ” Id. (quoting Huminski v. Corsones, 396

of completeness. 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-

3. Immunities CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.

Mar. 7, 2013) (explaining that the plaintiff may not bring

Plaintiff names as defendants several defendants who are

action against a judge for actions taken in his judicial capacity,

immune from suit. Insofar as plaintiff names Hon. Michael

even when the actions violated the ADA).

W. Smrtic, Interim Montgomery County Judge and Tatiana N.

Coffinger, “County/Family/Surrogate's Court Judge”8 such

“Judicial immunity is immunity from suit, not just immunity

claims would be barred by judicial immunity. from the assessment of damages.” Zavalidroga, 2017 WL

8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,

8 Although plaintiff provides no facts regarding 526 (1985)). “The only two circumstances in which judicial

any family court proceedings, that he named a immunity does not apply is when he or she takes action

family court judge and makes general reference ‘outside’ his or her judicial capacity and when the judge takes

to that he seeks review over actions taken by action that, although judicial in nature, is taken ‘in absence

a family court judge. Even if plaintiff were to of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).

amend his complaint to provide facts about any “In determining whether or not a judge acted in the clear

possible family court proceedings and details absence of all jurisdiction, the judge's jurisdiction is ‘to be

about any alleged violations of his rights that he construed broadly, and the asserted immunity will only be

believes he faced in that Court, if plaintiff seeks overcome when the judge clearly lacks jurisdiction over the

this Court's review of an order of the family subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,

court, such review would be barred by Rooker- 163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.

Feldman, and if plaintiff seeks this Court's review Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).

or intervention of a currently pending/ongoing “Whether a judge acted in a judicial capacity depends on

Family Court proceeding, such review would be the nature of the act [complained of] itself, i.e., whether it

barred by Younger. See Porter v. Nasci, No. 5:24- is a function normally performed by a judge, and [on] the

CV-0033 (GTS/TWD), 2024 WL 1142144, at expectations of the parties, i.e., whether they dealt with the

*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), judge in his judicial capacity.” Ceparano, 404 F. App'x at 539

report and recommendation adopted, 2024 WL (internal quotation marks and citation omitted). “Further, if

3158645 (N.D.N.Y. June 25, 2024) (“Under the the judge is performing in his judicial capacity,” he “ ‘will not

Rooker-Feldman doctrine, a federal district court be deprived of immunity because the action he took was in

lacks authority to review a final state court order error, was done maliciously, or was in excess of his authority;

or judgment where a litigant seeks relief that rather, he will be subject to liability only when he has acted

invites the federal district court to reject or overturn in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.

such a final state court order or judgment.”); see App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362

also Diamond “D” Constr. Corp. v. McGowan, (1978)). “Judges are not, however, absolutely ‘immune from

282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal liability for nonjudicial actions, i.e., actions not taken in the

courts [must] abstain from taking jurisdiction over judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209

federal constitutional claims that involve or call (2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).

into question ongoing state proceedings.”).

Thus, as plaintiff names the judicial defendants in relation to

*6 “With minor exceptions, judges are entitled to absolute

actions or omissions that they took in their roles as judges,

immunity for actions relating to the exercise of their judicial

their actions are protected by absolute judicial immunity.

functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/

To the extent plaintiff names Hon. Felix Catena, “Retired

by absolute judicial immunity as a judge's retirement, “does Accordingly, absolute immunity extends to functions such

not impact [his or] her immunity for acts taken in [his or] as “deciding whether to bring charges and presenting a case

her official capacity before her retirement.” McCray v. Lewis, to a grand jury or a court, along with the tasks generally

No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2 considered adjunct to those functions, such as witness

(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to preparation, witness selection, and issuing subpoenas.”

sue the judges their official capacities, the suit is barred by the Simon v. City of New York, 727 F.3d 167, 171 (2d

Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp. Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see

3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment also Flagler, 663 F.3d at 547 (explaining, “the Supreme

shields judges from suit to the extent that they are sued in their Court has found prosecutors absolutely immune from

official capacities.”). suit for alleged misconduct during a probable cause

hearing, in initiating a prosecution, and in presenting

*7 In addition, plaintiff also references, exclusively in his the State's case ... [but] withheld absolute immunity for

“relief” section of the form complaint, “the Supreme Court conduct unrelated to advocacy, such as giving legal advice,

Appellate Division, Third Department” when stating that he holding a press conference, or acting as a complaining

experienced “deliberate misconduct and malice.” Compl. at witness.”). “[O]nce a court determines that challenged

7. He does not name this Court as a defendant anywhere in conduct involves a function covered by absolute immunity,

the complaint. However, even if plaintiff were to have named the actor is shielded from liability for damages regardless

the Appellate Division, Third Department as a defendant, of the wrongfulness of his motive or the degree of injury

such defendant would also need to be dismissed based on caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503

Eleventh Amendment immunity as the Appellate Division “is (2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,

merely an agency or arm of New York State.” Benyi v. New 199-200 (1985)).

York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at

Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024

*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation

WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report

adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.

and recommendation adopted, No. 5:24-CV-573, 2024 WL

Apr. 13, 2021) (citation omitted). Accordingly, to the extent

3548760 (N.D.N.Y. July 26, 2024).

a liberal reading of the complaint may suggest that plaintiff

seeks to name the Appellate Division as a defendant, such

Plaintiff appears to suggest that Mr. Maxwell “withheld

claims are barred by Eleventh Amendment immunity. See

potentially exculpatory material” that was used against

Compl.

him. Compl. at 4. Beyond the Heck barriers already

discussed, even if plaintiff could amend to provide greater

Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.

detail, absolute immunity would extent to even this alleged

Maxwell, Esq., Assistant District Attorney, in addition to the

misconduct as such allegations clearly fall within the scope of

Heck issues noted above, he would be protected by absolute

prosecutorial immunity. Accordingly, it is recommended that

prosecutorial immunity. As this Court has recently reiterated,

any claims against ADA Samuel V. Maxwell be dismissed

Prosecutors enjoy “absolute immunity from § 1983 liability for absolute prosecutorial immunity. “Furthermore, because

for those prosecutorial activities ‘intimately associated the District Attorney's prosecutorial immunity is substantive

with the judicial phase of the criminal process.’ ” Barr v. and not something that can be corrected by a better pleading,

Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler I recommend that the dismissal be with prejudice.” Phillips

v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5

encompasses “virtually all acts, regardless of motivation, (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222

associated with [the prosecutor's] function as an advocate.” F.3d 99, 223 (2d Cir. 2000)).9

Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.

1995) (internal quotations and citation omitted). Absolute 9 Plaintiff appears to characterize his submissions as

immunity applies when a prosecutor's conduct, acting as an a purported removal to federal court or suggests

advocate during the judicial phase of the criminal process, that he seeks to remove his case from Montgomery

“involves the exercise of discretion.” Flagler v. Trainor, County Court to this Court. See Dkt. No. 7

663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher, (citing 28 U.S.C. § 1441). However, in addition

not demonstrated that any proceeding related to not contend that he made any efforts to obtain

this complaint has been properly removed to, or counsel on his own, show proof of any attorneys

is subject to removal to, this Court. See, e.g., he contacted. See Terminate Control Corp v.

28 U.S.C. § 1446. Indeed, plaintiff's submissions Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.

appear to indicate that plaintiff is the plaintiff in the No. 5.

County Court action. See id. § 1446(a). ORDERED, that the Clerk serve this Report-

Recommendation & Order on plaintiff in accordance with the

Local Rules.

III. Conclusion

*8 It is ORDERED, that plaintiff's in forma pauperis IT IS SO ORDERED.

application (dkt. no. 2) be GRANTED; and it is

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

RECOMMENDED, that plaintiff's section 1983 claims

FOURTEEN (14) days within which to file written

against Honorable Michael W. Smrtic; Tatiana N. Coffinger,

objections to the foregoing report. Such objections shall be

County/Family/Surrogate's Court Judge; and Felix Catena,

filed with the Clerk of the Court. FAILURE TO OBJECT

Retired Administrative Law Judge (Dkt. Nos. 1, 7) be

TO THIS REPORT WITHIN FOURTEEN (14) DAYS

DISMISSED WITH PREJUDICE as follows: (1) claims

WILL PRECLUDE APPELLATE REVIEW. Roldan v.

brought against them in their personal/individual capacities

Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y

for judicial immunity, and (2) claims brought against them in

of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see

their official capacities for Eleventh Amendment immunity;

and it is further

also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.11

RECOMMENDED, that plaintiff's section 1983 claims 11 If you are proceeding pro se and are served with

against Assistant District Attorney Samuel V. Maxwell (Dkt. this Report-Recommendation and Order by mail,

Nos. 1, 7) be DISMISSED WITH PREJUDICE due to three (3) additional days will be added to the

absolute prosecutorial immunity; and it is further fourteen (14) day period, meaning that you have

seventeen (17) days from the date the Report-

RECOMMENDED, that, to the extent a liberal reading Recommendation and Order was mailed to you to

of the complaint may suggest that plaintiff seeks to name serve and file objections. FED. R. CIV. P. 6(d).

the Appellate Division, Third Department, as a defendant If the last day of that prescribed period falls on

(Dkt. Nos. 1, 7), such claims be DISMISSED WITH a Saturday, Sunday, or legal holiday, then the

PREJUDICE as barred by Eleventh Amendment immunity, deadline is extended until the end of the next day

and it is that is not a Saturday, Sunday, or legal holiday. Id.

§ 6(a)(1)(c).

RECOMMENDED, that plaintiff's pro se motion for

permission to file electronically (dkt. no. 4) and motion to All Citations

appoint counsel10 (dkt. no. 5) be DISMISSED AS MOOT

based on the above recommendations, and it is Slip Copy, 2024 WL 4870495

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

Title PDF Court Date Type

1. Docket 1:24-CV-00847 — N.D.N.Y. July 08, 2024 Docket

Cole v. Smrtic et al

Direct History (2)

1. Cole v. Smrtic

2024 WL 4870495 , N.D.N.Y. , Nov. 21, 2024

Report and Recommendation Adopted by

2. Cole v. Smrtic

2025 WL 247901 , N.D.N.Y. , Jan. 21, 2025

2025 WL 1291533 II. STANDARD OF REVIEW

This Court reviews de novo those portions of a magistrate

Only the Westlaw citation is currently available.

judge's report-recommendation that have been properly

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

preserved with a specific objection. 28 U.S.C. § 636(b)(1)

Scott LESSON, Plaintiff, (C). “To be ‘specific,’ the objection must, with particularity,

‘identify [1] the portions of the proposed findings,

v.

recommendations, or report to which it has an objection

Jane DOE / State Trooper, Defendant.

and [2] the basis for the objection.’ ” Petersen v. Astrue,

1:25-cv-00188 (AMN/TWD) 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in

| original) (quoting N.D.N.Y. Local Rule 72.1(c)). If no specific

Signed May 5, 2025 objections have been filed, this Court reviews a magistrate

judge's report-recommendation for clear error. See Petersen,

Attorneys and Law Firms 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b) advisory

committee's notes to 1983 addition). Similarly, when a party

SCOTT LESSON, Saratoga County Jail, 6010 County Farm files “[g]eneral or conclusory objections, or objections which

Road, Ballston Spa, New York 12020, Plaintiff, pro se. merely recite the same arguments [previously] presented to

the magistrate judge,” the district court reviews a magistrate

judge's report-recommendations for clear error. O'Diah v.

ORDER Mawhir, No. 08-cv-322, 2011 WL 933846, at *1 (N.D.N.Y.

Mar. 16, 2011) (citations omitted); accord Mario v. P &

Anne M. Nardacci, United States District Judge: C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)

(a “statement, devoid of any reference to specific findings

I. INTRODUCTION

or recommendations to which [the plaintiff] objected and

*1 On February 10, 2025, pro se plaintiff Scott Lesson

why, and unsupported by legal authority, was not sufficient

(“Plaintiff”) commenced this action pursuant to 42 U.S.C. §

to preserve” a claim); Petersen, 2 F. Supp. 3d at 228-29

1983 (“Section 1983”) against an unknown New York State

& n.6 (collecting cases). “When performing such a ‘clear

Trooper. Dkt. No. 1 (“Complaint”). Plaintiff sought and was

error’ review, ‘the court need only satisfy itself that there is

granted leave to proceed in forma pauperis. Dkt. Nos. 4, 6.

no clear error on the face of the record in order to accept

the recommendation.’ ” Dezarea W. v. Comm'r of Soc. Sec.,

This matter was referred to United States Magistrate Judge

No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar.

Thérèse Wiley Dancks, who reviewed the Complaint pursuant

17, 2023) (quoting Canady v. Comm'r of Soc. Sec., No. 17-

to 28 U.S.C. § 1915(e) and, on March 26, 2025, recommended

cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,

that the Complaint be dismissed with leave to amend. Dkt. No.

2017)).

6 (“Report-Recommendation”). Magistrate Judge Dancks

advised that pursuant to 28 U.S.C. § 636(b)(1), the parties

*2 “[I]n a pro se case, the court must view the submissions

had fourteen days within which to file written objections and

by a more lenient standard than that accorded to ‘formal

that failure to object to the Report-Recommendation within

pleadings drafted by lawyers.’ ” Govan v. Campbell, 289

fourteen days would preclude appellate review. Id. at 7-8.1

F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines

No party has filed objections to the Report-Recommendation v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations

and the time for filing objections has expired. omitted). The Second Circuit has held that courts are

obligated to “make reasonable allowances to protect pro se

1 Citations to docket entries utilize the pagination litigants” from inadvertently forfeiting legal rights merely

generated by CM/ECF, the Court's electronic filing because they lack a legal education. Id. (quoting Traguth v.

system, and not the documents’ internal pagination. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a

pro se party's objections to a Report and Recommendation

For the reasons set forth below, the Court adopts the Report-

must be specific and clearly aimed at particular findings in

Recommendation in its entirety.

the magistrate's proposal ....” Machicote v. Ercole, No. 06-

cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011)

appropriate review, “the court may accept, reject or modify, with leave to amend;2 and the Court further

in whole or in part, the findings or recommendations made by

the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 2 As set forth in the Report-Recommendation, any

amended pleading must comply with Rules 8 and

10 of the Federal Rules of Civil Procedure. Dkt. No.

III. DISCUSSION

5 at 6–7.

Because no party has filed any objections to the

Report-Recommendation, the Court reviews the Report- ORDERS that any amended complaint must be filed within

Recommendation for clear error. thirty (30) days of the filing date of this Order; and the Court

further

Magistrate Judge Dancks determined that Plaintiff's

allegations failed to set forth a claim for excessive force, ORDERS that, if Plaintiffs file a timely amended complaint,

as Plaintiff did not identify what force the unidentified it shall be referred to Magistrate Judge Dancks for review;

state trooper purportedly used against him, nor how it was and if Plaintiff fails to file a timely amended complaint, the

excessive. Dkt. No. 6 at 5-6. Magistrate Judge Dancks also Clerk is directed to close this case without further order of this

found that Plaintiff's allegations failed to comply with the Court; and the Court further

pleading requirements set forth in the Federal Rules of Civil

Procedure. Id. at 4-5. As a result, Magistrate Judge Dancks ORDERS that the Clerk serve a copy of this Order on all

recommended that the Complaint be dismissed with leave to parties in accordance with the Local Rules.3

amend. Id. at 6-7. The Court agrees with Magistrate Judge

Dancks’ findings and recommendations for the reasons set 3 The Clerk shall also provide Plaintiff, at both

forth in the Report-Recommendation. Having reviewed the

his address of record and the future address he

Report-Recommendation for clear error, and found none, the

provided, Dkt. No. 2, with copies of all unreported

Court adopts the Report-Recommendation in its entirety.

decisions herein.

IT IS SO ORDERED.

IV. CONCLUSION

Accordingly, the Court hereby

All Citations

ORDERS that the Report-Recommendation, Dkt. No. 6, is

Slip Copy, 2025 WL 1291533

ADOPTED in its entirety; and the Court further

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

Direct History (2)

1. Lesson v. Doe

2025 WL 915777 , N.D.N.Y. , Mar. 26, 2025

Report and Recommendation Adopted by

2. Lesson v. Doe

2025 WL 1291533 , N.D.N.Y. , May 05, 2025

There are no Filings for this citation.

2006 WL 3463425 DISCUSSION

Only the Westlaw citation is currently available.

NOT FOR PUBLICATION Standard of Review

United States District Court, In reviewing Mr. Shelton's request, the Court is mindful that

E.D. New York. because he is proceeding pro se, his submissions should be

held “to less stringent standards than formal pleadings drafted

In re Thomas SHELTON. by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66

L.Ed.2d 163 (1980). Furthermore, his pleadings must be read

No. 06-CV-6132 CBA.

liberally and interpreted as raising the strongest arguments

|

they suggest. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d

Nov. 30, 2006.

Cir.2004); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

If a liberal reading of the complaint “gives any indication that

Attorneys and Law Firms

a valid claim might be stated,” this Court must grant leave to

Thomas Shelton, Cape Vincent, NY, pro se. amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir.2000); Gomez v. USAA Fed. Sav. Bank, 171 F.3d

794, 795 (2d Cir.1999).

ORDER

However, “[i]t is axiomatic that federal courts are courts of

AMON, United States District Judge: limited jurisdiction and may not decide cases over which they

lack subject matter jurisdiction. Unlike failure of personal

*1 On November 8, 2006, Thomas Shelton, who is is jurisdiction, failure of subject matter jurisdiction is not

incarcerated at Cape Vincent Correctional Facility, filed a waivable and may be raised at any time by a party or by the

document with the Court styled as a “Freedom of Information court sua sponte. If subject matter jurisdiction is lacking, the

Request.” This Court may not act on Mr. Shelton's request for action must be dismissed.” Lyndonville Sav. Bank & Trust Co.

information as stated. However, in an abundance of caution, v. Lussier, 211 F.3d 697, 700-01 (2d Cir.2000) (citing Bender

the Clerk of Court has been directed to assign a docket number v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct.

to this case, solely for the purpose of this Order. In order to 1326, 89 L.Ed.2d 501 (1986); United Food & Commercial

proceed with this action in federal court, Mr. Shelton must file Workers Union, Local 919 v. CenterMark Props. Meriden

a complaint and either pay the filing fee or submit a request to Square, Inc., 30 F.3d 298, 301 (2d Cir.1994)). Federal subject

proceed in forma pauperis and a Prisoner Authorization form matter jurisdiction is available only when a “federal question”

within thirty (30) days of the date of this Order. is presented, or when plaintiff and defendant are of diverse

citizenship and the amount in controversy exceeds $75,000.

To invoke federal question jurisdiction, the plaintiff's claim(s)

Mr. Shelton's Submission

must arise “under the Constitution, laws, or treaties of the

The document received by the Court consists of a three-

United States.” 28 U.S.C. § 1331.

page handwritten request “made pursuant to Title 5 U.S.C.A.

Subsection 522 and the Sarbanes Oxley Act of 2002” and

addressed to the U.S. District Court Eastern District of NY. The FOIL/FOIA Request

Mr. Shelton requests “ ‘All’ civil and/or criminal active and/or *2 Mr. Shelton cites to both state and federal laws providing

inactive existing records and/or files social security account/ access to government records. The New York Freedom of

I.R.S. account number # XXX-XX-XXXX and original Information Law, Public Officers Law § 84 et seq. (“FOIL”)

case number # 02922-2003 STAT of New York County allows individuals to request disclosure of records collected

Queens v. Thomas Shelton” and other materials. Mr. Shelton by New York state agencies, subject to certain statutory

additionally asks that “If you/your office do not have these exemptions. If the initial request is denied, the requester

document mentioned above, please foward this FOIL to the may appeal the denial first to the “head, chief executive

correct department so I my recive these documents.” [sic ]. or governing body” of the entity or agency in possession

of the documents, and, thereafter, by commencing a special

proceeding in New York State courts under Article 78 of the

§ 89(4)(a) and (b). Federal courts do not have jurisdiction to of the claim showing that the pleader is entitled to relief, and

enforce state laws granting public access to official records. (3) a demand for judgment for the relief the pleader seeks.”

Fed.R.Civ.P. 8(a). Moreover, in order to bring a complaint

in federal court, Mr. Shelton must either pay the filing fee

The federal Freedom of Information Act, 5 U.S.C. § 552 et

or seek leave of the Court to proceed in forma pauperis.

seq. (“FOIA”) created a judicially enforceable public right of

Under 28 U.S.C. § 1914, the filing fee to commence a civil

access to information collected by executive branch agencies,

action is $350. Under 28 U.S.C. § 1915, the Court may waive

subject to specified limitations. FOIA requests must be made

the filing fee upon finding a plaintiff indigent. However, the

to the specific agency, may be administratively appealed to

Prison Litigation Reform Act (“PLRA”) requires prisoners

the head of the agency, and ultimately are appealable to

to pay the full filing fee from their prison accounts as funds

federal courts. 5 U.S.C. § 552(a)(4)(B). However, federal

become available. For Mr. Shelton's convenience, the Court

court jurisdiction “is dependent upon a showing that an

agency has (1) ‘improperly;’ (2) ‘withheld;’ (3) ‘agency has attached the forms for application to proceed in forma

records,” ’ Kissinger v. Reporters Committee for Freedom of pauperis and the Prisoner Authorization for disbursement of

funds pursuant to the PLRA.

the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267

(1980), and the requester must first exhaust his administrative

remedies, Ruotolo v. Department of Justice, 53 F.3d 4, 8 (2d

Cir.1995). CONCLUSION

To the extent that Mr. Shelton seeks information from state *3 Mr. Shelton shall have thirty (30) days from the date of

agencies, such as the Queens County Court, this Court does this Order to file a complaint that complies with Rule 8. The

not have jurisdiction over requests made pursuant to the state Complaint must be accompanied by the filing fee or by the

FOIL. The federal FOIA applies only to federal agencies, and application to proceed without prepayment of fees and the

not to state agencies. See e.g. Grand Cent. Partnership, Inc. Prisoner Authorization to disburse funds from the prison trust

v. Cuomo, 166 F.3d 473, 484 (2d Cir.1999). To the extent fund account. No summons shall issue at this time and all

that Mr. Shelton seeks information from federal agencies such further proceedings shall be stayed for thirty (30) days. The

as the IRS, he has not indicated that he has filed a FOIA Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any

request, that such request was initially denied, nor that he has appeal from this Order would not be taken in good faith. See

exhausted his administrative remedies. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct.

917, 8 L.Ed.2d 21 (1962).

Although this Court can discern no federal question that

would give this Court jurisdiction over Mr. Shelton's request, SO ORDERED.

the Court is mindful of Mr. Shelton's pro se status.

Accordingly, the Court grants leave to file a complaint. Rule

All Citations

8 of the Federal Rules of Civil Procedure provides that, in

order to state a claim for relief, a complaint must contain “(1) Not Reported in F.Supp.2d, 2006 WL 3463425

a short and plain statement of the grounds upon which the

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

Title PDF Court Date Type

1. Docket 1:06cv06132 — E.D.N.Y. Nov. 08, 2006 Docket

ASSIGNED TO: JUDGE CAROL B. AMON REFERRED

TO: MAGISTRATE-JUDGE LOIS BLOOM CAUSE:

42:1983 PRISONER CIVIL RIGHTS DATE FILED:

11/08/2006 JURY DEMAND: NONE NATURE OF

SUIT: 550 PRISONER: CIVIL RIGHTS JURISDICTION:

FEDERAL QUESTION IN RE THOMAS SHELTON

REPRESENTED BYTHOMAS SHELTON 04R0515 CAPE

VINCENT CORRECTIONAL FACILITY ROUTE 12E PO

BOX 739 CAPE VINCENT, NY 13618 US PRO SE

There are no History results for this citation.