Khan M.D. v. McDonald MD

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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FAIZ KHAN M.D.,

Plaintiff, REPORT & RECOMMENDATION

v. 24-cv-4745 (JMA) (ST)

JAMES MCDONALD, MD, in his official

capacity as Commissioner of NYS Department

of Health; JOSEPH A. GIOVANNETTI, in his

official capacity as Director of Bureau of

Investigations, NYS Department of Health;

LAWRENCE BURWELL, in his

official capacity investigator, New York

State Department of Health; BRIAN CRUZ,

in his official his capacity as investigator,

New York State Department of Health;

“JOHN DOE” and/or “MARY ROE,”

the last two names being fictitious whose

identity is unknown to the Plaintiff, the

individual(s) intended being the director

or head officer of the NYS Department

of Health Immunizations Bureau,

Defendants.

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TISCIONE, United States Magistrate Judge:

Dr. Faiz Khan (“Plaintiff”), seeking declaratory and injunctive relief, sued various New

York State Department of Health (“DOH”) officials for alleged violations of Plaintiff’s

constitutional rights. See generally Am. Compl., ECF No. 16. Plaintiff’s claims arise from the

DOH’s investigation into Plaintiff’s vaccination practices. See generally id.

Before this Court is Plaintiff’s Motion for a Preliminary Injunction and Plaintiff’s Motion

to Quash a subpoena. See Mot. Prelim. Inj., ECF No. 40; Mot. Quash, ECF No. 41. Also before

this Court is a Motion to Dismiss by Dr. James McDonald, Joseph Giovannetti, Lawrence Burwell,

and Brian Cruz (collectively, “Defendants”).1 See Mot. Dismiss, ECF No. 53. Finally, before this

Court is Plaintiff’s request to submit a supplemental “certification” and memorandum of law, as

well as his request for a pre-motion conference to discuss the filing of a possible second amended

complaint. See Pl.’s Letter, ECF No. 55.

For the reasons discussed below, this Court respectfully recommends that the District Court

GRANT the Motion to Dismiss and DENY as moot the Motion for a Preliminary Injunction and

Motion to Quash. This Court further recommends DENYING Plaintiff’s request to make

supplemental submissions, as well as his request for a pre-motion conference.

BACKGROUND

I. THE AMENDED COMPLAINT’S FACTUAL ALLEGATIONS

This Court will not recite every allegation in the Amended Complaint, as many of the

allegations are mere legal conclusions2 or otherwise irrelevant to the central dispute. To

summarize, Plaintiff is a New York-licensed physician who has held several roles at various

institutions throughout his medical career. Am. Compl. ¶¶ 1, 57–60; see id. Ex. C, ECF No 16-3.

Most pertinent here is that Plaintiff maintains a practice called Advanced Medicine of Long Island,

located at 180 Michael Drive, Syosset, New York 11791 (“Advanced Medicine”). Id. ¶ 1. Plaintiff

opened Advanced Medicine in 2019 “with the goal of offering a blend of complementary and

conventional medicine treatments to his patients.” Id. ¶ 62. The practice does not accept insurance.

Id. ¶ 70.

1 As far as this Court can tell, Plaintiff has not determined the identity of defendant John Doe / Mary Roe, and no one

has appeared on that defendant’s behalf. However, as Plaintiff lacks standing to sue (as this Court finds herein), this

case should be dismissed as to all defendants, and not just the moving defendants.

2 See Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (“A court considering a motion to dismiss may begin by identifying

allegations that, because they are mere conclusions, are not entitled to the assumption of truth.”).

As Plaintiff’s practice “does not focus on vaccinations” or “function as a conventional

vaccination site,” Plaintiff “does not routinely vaccinate his patients.” Id. ¶¶ 70, 88. Even so,

Plaintiff has, indeed, administered vaccines at Advanced Medicine, and maintains a vaccine

storage area there. See id. ¶¶ 109, 112, 123, 124, 144. However, because Advanced Medicine “is

not a routine vaccination practice,” and patients have “to cover the cost of vaccine procurement,”

Advanced Medicine “does not have surplus back-up [vaccine] stock like primary care practices.”

Id. ¶ 109.

Prior to the events in question, Plaintiff allegedly had access to the New York State

Immunization Information System (“NYSIIS”). See generally id. “NYSIIS is a centralized

database system that keeps track of all immunization in New York.” Id. ¶ 135. According to

Plaintiff, “healthcare providers who administer immunizations in New York have to register and

enter all of the information provided both by statute and . . . regulation.” Id. ¶ 136. Plaintiff

explains that, in particular, vaccine providers must enter information regarding vaccinations of

anyone under 19 years of age. See id. ¶ 137.

On or about April 23 or 24, 2024, Defendant Cruz, a DOH investigator, allegedly called

Plaintiff, but “refused to disclose the purpose of his call and asked for an in person meeting with

[Plaintiff] to discuss the reason for his call.” Id. ¶¶ 77, 78. Plaintiff said that he would be at work

on April 29, and asked Defendant Cruz to call him back to schedule a time to meet, as Plaintiff

was “plan[ning] on having his attorney present during the scheduled appointment.” Id. ¶ 79.

However, Defendant Cruz never called back, and on April 29, 2024, Defendant Cruz and

Defendant Burwell, also a DOH investigator, went to Advanced Medicine, without a warrant, and

asked to speak with Plaintiff. Id. ¶¶ 80, 81. Plaintiff “did his best to accommodate them” but was

“feeling coerced.” Id. ¶ 81.

Plaintiff claims that Defendant Cruz and Defendant Burwell “started their interrogation . .

. by generally asking [Plaintiff] about the nature of his medical practice and the types of medical

cases and patients that [he] sees.” Id. ¶ 87. Defendant Cruz and Defendant Burwell then “abruptly

steered the interrogation into Plaintiff’s vaccination practices” and eventually “turned the focus of

their questioning by inquiring as to why patients would come to [Plaintiff] for consultation

regarding vaccines and administration of such, if they could vaccinate with their primary care

physician or at mass vaccination sites in the case of COVID 19 vaccines.” Id. ¶¶ 88, 91. Defendant

Cruz and Defendant Burwell also asked about “the costs associated with [Plaintiff’s] consultation

and vaccination or lack thereof.” Id. ¶ 114. Throughout the questioning, Plaintiff allegedly felt

that he had been “profiled and targeted for interrogation due to the atypical and completely private

nature of [his] practice” and its “complementary and integrative nature.” Id. ¶ 113.

Defendant Cruz and Defendant Burwell also allegedly asked Plaintiff if he knew Dr. Jim

Campasano. Id. ¶ 115. Plaintiff replied that he did, as they were colleagues and friends. Id. ¶ 116.

According to Plaintiff, Dr. Campasano “allegedly got hold of Covid cards and was accused of

giving them to relatives/friends.” Id. ¶ 117.

Plaintiff further alleges that Defendant Cruz and Defendant Burwell asked Plaintiff if he

knew an individual named Jeanette Breen. Id. ¶ 118. Plaintiff claimed that he did not know her,

but learned from the investigators that she was a midwife on Long Island found in violation of

vaccine policy “by giving homeopathic drops to pediatric patients and entering such as valid

childhood vaccinations into NYSI[I]S.” Id. ¶ 119. Defendant Cruz and Defendant Burwell

allegedly asked whether any of Breen’s patients “came through [Plaintiff’s] office,” to which

Plaintiff responded, “I don’t know – have they?” Id. ¶¶ 121, 122. The investigators allegedly

“remained silent.” Id. ¶ 122.

Defendant Cruz and Defendant Burwell then allegedly “asked to walk through [Plaintiff’s]

office and demanded that [he] show to them” where he kept vaccines. Id. ¶ 123. Plaintiff claims

that he was “[f]eeling coerced” and thus “complied.” Id. According to Plaintiff, the vaccines were

all kept in storage, with the expired vials separated from the “current ones,” which Defendant Cruz

said was “a good thing.” Id. Defendant Cruz and Defendant Burwell then took photos of the

vaccine storage area and left. Id. ¶ 124.

Thereafter, in mid-May 2024, Plaintiff allegedly received a call from a mother whose child

was vaccinated before April 29, 2024. Id. ¶ 145. According to Plaintiff, he had previously entered

the patient’s vaccination information into NYSIIS. Id. ¶ 146. The mother informed Plaintiff,

however, that her general practitioner was trying to enter the same information into their system,

but that the system was “rejecting” the information that Plaintiff previously entered. Id.

At the beginning of June 2024, Plaintiff allegedly vaccinated two children for meningitis.

Id. ¶ 150. However, when Plaintiff tried to enter the vaccination information into NYSIIS, he was

unable to access the database. Id. On or about June 3, 2024, Plaintiff contacted the NYSIIS help-

desk, and the representative told Plaintiff that they would forward his inquiry to the DOH. Id. ¶

152. About a day later, Plaintiff left a message with the DOH Bureau of Immunizations but

received no response. Id. Plaintiff became concerned, as some of the patients he had previously

vaccinated “were returning for their follow-up consultations and injections – and Plaintiff had

already ordered the vaccines for their pending visits.” Id. ¶ 153. Plaintiff also allegedly had to

“cancel a consultation for TDaP vaccination” and asked the patients to reschedule. Id. ¶ 154.

On June 7, seeking an explanation for the shutdown of his NYSIIS access, Plaintiff emailed

Defendant Burwell. Id. ¶ 155; see id. Ex. B, ECF No. 16-2. On June 11, Plaintiff called Defendant

Burwell to inquire further. Id. ¶ 157. Defendant Burwell responded that he would investigate the

situation and get back to Plaintiff. Id. ¶ 158.

On June 12, 2024, Defendant Burwell and Defendant Cruz returned to Advanced Medicine.

Id. ¶ 160. Plaintiff did his best to accommodate Defendant Burwell and Defendant Cruz, but

claims that they “were clearly harassing and interfering Plaintiff’s ability to see his patients.” Id.

¶ 161. During the visit, Defendant Burwell allegedly “pressed a button on his phone screen,”

leading Plaintiff to suspect that Defendant Burwell was recording the meeting. Id. ¶ 165.

Defendant Burwell and Defendant Cruz allegedly “proceeded to cite certain lapses/errors in Dr.

Khan’s NYSIIS documentation . . . and . . . asked [Plaintiff] to respond to the accusations.” Id. ¶

163. Plaintiff was unable to answer their questions, as Defendant Cruz and Defendant Burwell

gave Plaintiff insufficient information to answer them. Id. According to Plaintiff, however,

Defendant Burwell and Defendant Cruz were “bragging” that they had shut down Plaintiff’s

NYSIIS access. Id. ¶ 164.

Defendant Burwell also allegedly asked Plaintiff if he knew that he had entered information

regarding vaccines with expired lot numbers into NYSIIS. Id. ¶ 167. Without additional context,

however, Plaintiff could not recall doing so. Id. ¶ 168. Defendant Burwell then allegedly “began

outright accusing [Plaintiff] of some unspecified, unidentified and unknown vaccines which had

expired lot numbers and were entered by [Plaintiff] into the NYSIIS database.” Id. ¶ 169.

Defendant Burwell also allegedly “accused [Plaintiff] of accepting consultations from patients” in

California, Arizona and Pennsylvania. Id. ¶ 172. Defendant Burwell “further accused” Plaintiff

“of having logged in an entry for a vaccination date which was 1.5 [years] prior to the entry.” Id.

¶ 176.

Thereafter, Plaintiff informed Defendant Burwell and Defendant Cruz of a vaccine order

due to arrive at his practice. Id. ¶ 177. Defendant Cruz allegedly denied any implication that

Plaintiff would be unable to vaccinate patients, despite his NYSIIS lockout. See id.

As they were leaving, Defendant Cruz and Defendant Burwell allegedly “revealed that the

NYSIIS lockout was because of what they disclosed to [Plaintiff] in the above nonspecific and

non-descript terms that their findings were.” Id. ¶ 188. Defendant Cruz and Defendant Burwell

then served Plaintiff with a subpoena, dated June 11, 2024 (the “Subpoena”), which was signed by

Defendant Giovannetti, the DOH’s investigation bureau director. Id. ¶¶ 188, 189.

Plaintiff claims that Defendant Giovannetti engaged in a “pattern of harassment” against

Plaintiff. Id. ¶ 192. In support of this allegation, the Amended Complaint cites the following email

from Defendant Giovannetti, sent on July 10, 2024, in response to an email from Plaintiff’s

counsel:

Counsel,

You misspelled my email address below. Presumably the error is why you were

unsuccessful in reaching me prior. Please see the subpoena that was served on your

client, and which you attached to your filing, for the correct spelling.

Please instruct your client to preserve all material in his possession relevant to our

subpoena and his vaccination practice. Concealment, alteration, or destruction

of this material may subject him to prosecution.

I’ve cc-ed Danielle Rysedorph, Deputy Director, Bureau of Litigation. Please direct

all future communication regarding this matter to Ms. Rysedorph or her designee.

If you need further assistance connecting with her, I’ll be happy to assist.

Thank you,

Joe Giovannetti

Id. ¶¶ 193, 194; Ex. D., ECF No. 16-4 (emphasis in original).

Plaintiff alleges that as of July 15, 2024, he has not regained NYSIIS access. Id. ¶ 159.

II. THE SUBPOENA

The Subpoena, which Plaintiff seeks to quash, is captioned In the Matter of Faiz Khan,

M.D. (Inv. No. DOH-0905(c)), and dated June 11, 2024. See id. Ex. A, ECF No. 16-1. The

Subpoena, issued under New York Public Health Law § 206(4)(a) and § 12, calls for the production

of six categories of documents to the New York State Health Commissioner (on or before June 28,

2024). See id. Those categories are:

1. Any and all order forms, purchase orders, confirmations, invoices, bills, receipts,

shipping notices, packing slips, and other records related to the ordering,

purchasing, shipping, receipt, and return of any and all of [23 enumerated vaccines]

from January 1, 2019, to present;

2. Any and all records regarding immunization by Dr. Faiz Khan and/or Advanced

Medicine of Long Island of the twenty-two (22) individuals whose names and dates

of birth are listed in Addendum 1,3 attached hereto, including but not limited to

medical/clinical records (also known as “charts”); appointment/scheduling records;

billing records; and communication, correspondence, and/or notes and any other

records of communication, from, to, with, or on behalf of the individuals and/or the

individuals’ guardian(s)/healthcare proxy.

3. Any and all records related to and documenting the practice of charging patients

for the procurement cost of a vaccine and the subsequent division of that cost

among future patients who receive vaccines from the same vaccine supply

including, but not limited to, spreadsheets, records of cost divisions and

calculations of cost, reimbursements, and any and all communications regarding

cost variations and reimbursements.

4. Any and all pamphlets, handouts, guidance documents, informational sheets, and

instructions distributed to any and all patients regarding homeopathic alternatives

to conventional vaccines.

5. Records sufficient to identify the name, date of birth, and last-known contact

information (address and telephone number) of any and all individuals employed

by Faiz Khan, M.D., and/or Advanced Medical Long Island at any time, and for

any duration of time, from January 1, 2019, to present.

6. Completed (i.e., signed and dated) New York State Department of Health New

York State Immunization Information System (“NYSIIS”) User Agreement form.

3 In attaching the Subpoena to the Amended Complaint, Plaintiff omitted the addendum for confidentiality purposes.

Id.

III. PROCEDURAL HISTORY

Plaintiff commenced this action on July 8, 2024, and filed the Amended Complaint on July

15, 2024. See Compl., ECF No. 1; Am. Compl. On October 21, 2024, Plaintiff filed the fully

briefed Motion for a Preliminary Injunction and Motion to Quash the Subpoena. See Mot. Prelim.

Inj.; Mot. Quash. On March 14, 2025, Defendants filed the fully briefed Motion to Dismiss. See

Mot. Dismiss. On April 2, 2025, the Honorable Joan M. Azrack referred all three motions to this

Court for report and recommendation. See Order Referring Mot., dated April 2, 2025.

On April 24, 2025, Plaintiff filed a letter requesting to submit supplemental information to

the Court, and to discuss the filing of a possible second amended complaint. See Pl.’s Letter. In a

letter dated May 1, 2025, Defendants opposed Plaintiff’s request. See Defs.’ Letter, ECF No. 56.

On May 5, 2025, Judge Azrack referred those letters for this Court to consider in conjunction with

the pending motions. See Order Referring Letters, dated May 5, 2025.

LEGAL STANDARD

This Court will first consider Defendants’ Motion to Dismiss because, if the Motion to

Dismiss is granted, Plaintiff’s Motion for a Preliminary Injunction and Motion to Quash will be

moot. Defendants move to dismiss for lack of subject matter jurisdiction and failure to state a

claim under Federal Rules 12(b)(1) and 12(b)(6) of Civil Procedure, respectively.

I. LACK OF SUBJECT MATTER JURISDICTION

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). A motion to dismiss based on lack of Article III

standing is properly raised under Rule 12(b)(1) for lack of subject matter jurisdiction. See John v.

Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 735 (2d Cir. 2017).

A Rule 12(b)(1) motion may be either facial or fact-based. Carter v. HealthPort Techs.,

LLC, 822 F.3d 47, 56 (2d Cir. 2016). When the motion is facial, i.e., based on the allegations of

the complaint and any exhibits attached thereto, the plaintiff has no evidentiary burden. Id. The

court’s task is to determine whether the pleading “alleges facts that affirmatively and plausibly

suggest that the plaintiff has standing to sue.” Id. (citation omitted). The court thus accepts the

complaint’s factual allegations as true and draws all reasonable inferences in the plaintiff’s favor.

Id. at 57. When a defendant makes a fact-based motion, and proffers evidence beyond the pleading

“reveal[ing] the existence of factual problems” in the assertion of jurisdiction, a plaintiff must

present evidence controverting the alleged jurisdictional defects. Id. (citation omitted). Thus,

when a defendant makes a fact-based challenge to jurisdiction, the plaintiff “has the burden of

proving by a preponderance of the evidence that [jurisdiction] exists.” Tandon v. Captain’s Cove

Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova, 201 F.3d at 113).

II. FAILURE TO STATE A CLAIM

To survive a motion to dismiss for failure to state a claim, a complaint must contain

sufficient facts that, when accepted as true, state “a claim to relief that is plausible on its face.”

Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible when the factual allegations allow “the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id.

Determining whether a complaint states a plausible claim for relief is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

at 679. In doing so, the court “must construe [the complaint] liberally, accepting all factual

allegations therein as true and drawing all reasonable inferences in the plaintiff[’s] favor.”

Sacerdote v. N.Y. Univ., 9 F.4th 95, 106–07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d

804, 809 (2d Cir. 2019)). However, allegations that “are no more than conclusions[] are not

entitled to the assumption of truth.” Iqbal, 556 U.S. at 679.

DISCUSSION

Plaintiff seeks declaratory and injunctive relief for Defendants’ alleged violations of

Plaintiff’s First, Fourth, Fifth, and Fourteenth Amendment rights. See generally Am. Compl.

Generally, Plaintiff complains that Defendants violated his rights by engaging in a “systematic

pattern of harassment” against him, visiting Advanced Medicine twice without a warrant,

questioning Plaintiff in an accusatory manner, serving him with the Subpoena, and shutting down

his NYSIIS access. However, for the reasons discussed below, Plaintiff’s claims for relief fail.

I. THE AMENDED COMPLAINT VIOLATES FEDERAL RULE 8 OF CIVIL

PROCEDURE.

As a preliminary matter, the 86-page, 390+ paragraph-long4 Amended Complaint (plus

exhibits) fails to comply with Federal Rule 8 of Civil Procedure. Under Rule 8, a complaint must

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). The rule’s purpose “is ‘to give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.’” SEC v. Hwang, 692 F.Supp.3d 362, 389 (S.D.N.Y.

2023) (citing Twombly, 550 U.S. at 555). “The statement should be short because unnecessary

prolixity in a pleading places an unjustified burden on the court and the party who must respond

to it because they are forced to select the relevant material from a mass of verbiage.” Steadman v.

4 Not including sub-paragraphs, of which there are several. Additionally, some paragraphs are misnumbered, as there

are, for example, two paragraphs numbered “196”; there is also a paragraph numbered “320” following the paragraph

that is numbered “393.”

Citigroup Glob. Mkts. Holdings Inc., 592 F.Supp.3d 230, 244 (S.D.N.Y. 2022) (citing Salahuddin

v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).

When a complaint does not comply with Rule 8, “the court has the power, on its own

initiative or in response to a motion by the defendant, to strike any portions that are redundant or

immaterial . . . or to dismiss the complaint.” Salahuddin, 861 F.2d at 42. “[C]omplaints which

ramble, which needlessly speculate, accuse and condemn, and which contain circuitous diatribes

far removed from the heart of the claim do not comport with [Rule 8] . . . and must be dismissed.”

Coon v. Benson, 9-cv-230, 2010 WL 769226, at *3 (S.D.N.Y. Mar. 8, 2010)). Indeed, “prolix,

unintelligible, speculative complaints that are argumentative, disjointed and needlessly ramble

have routinely been dismissed in this Circuit.” Shetiwy v. Midland Credit Mgmt., 980 F.Supp.2d

461, 467 (S.D.N.Y. 2013) (citation omitted); see id. n.8 (collecting cases). However, courts usually

“resort to dismissal under Rule 8 when ‘the complaint is so confused, ambiguous, vague, or

otherwise unintelligible that its true substance, if any, is well disguised.’” Hwang, 692 F.Supp.3d

at 389 (citing Salahuddin, 861 F.2d at 42).

Here, the Amended Complaint’s “true substance” is not necessarily “disguised,” as this

Court can discern—although not without difficulty—enough from the Amended Complaint to

evaluate it against Defendants’ Motion to Dismiss. See id. Nevertheless, the Amended Complaint

is “redundant, argumentative, and has much irrelevancy and inflammatory material. It is

excessively long-winded, and its wordiness is unjustified.” Morgens Waterfall Holdings, L.L.C. v.

Donaldson, Lufkin & Jenrette Secs. Corp., 198 F.R.D. 608, 610 (S.D.N.Y. 2001). It is also

“rambling and repetitive, jumping back and forth in time and moving from claim to claim in a

disjointed fashion.” Rubin v. N.Y.C. Bd. of Educ., 20-cv-10208 (LGS) (KHP), 2023 WL 1972729,

at *10 (S.D.N.Y. Jan. 6, 2023), report and recommendation adopted, 2023 WL 2344731 (S.D.N.Y.

Mar. 3, 2023). To be sure, this Court has had to wade through pages of legal argument and diatribe

to string together the factual allegations that are relevant to the instant motions. See id. (noting

that the complaint was not “plain” under Rule 8 where it did not “follow a coherent narrative.”).5

Plaintiff’s style of pleading is especially unjustified where, as here, Plaintiff is represented

by counsel. This Court would be compelled to construe the Amended Complaint with “special

solicitude” were Plaintiff proceeding pro se—but not so in this case. Hogan v. Fischer, 738 F.3d

509, 515 (2d Cir. 2013) (quotations omitted).

Additionally, the Amended Complaint’s “inflammatory accusations against Defendants”—

which are largely made without supportive factual allegations—are particularly concerning. Keitel

v. D’Agostino, 21-cv-8537 (JMF), 2022 WL 15524665, at *2 (S.D.N.Y. Oct. 27, 2022). For

example, Plaintiff claims that the “true identity” of Defendant Giovannetti, Defendant Cruz, and

Defendant Burwell is that they are part of a “hunt team” with “unfettered and unchecked powers

and discretion,” who “hunt down healthcare practitioners” and have “gathered celebrity status and

notoriety.” Am. Compl. ¶¶ 33, 34, 36, 40. Plaintiff describes Defendants as “living in their own

abusive investigative world which is predicated upon bullying and intimidation of unsuspecting

medical licensees” such as Plaintiff. Id. ¶ 44.

Similarly, Plaintiff claims that Defendants went on a “witch hunt” against him and are

“intoxicated by their own fame and harboring a delusion that they are above the Fourth

Amendment.” Id. ¶¶ 29, 39. Plaintiff also asserts that Defendants “harbored the delusion of

grandeur that they are vested with unlimited an [sic] unfettered powers to harass the Plaintiff

5 Notably, this Court is not the first in this Circuit to observe a Rule 8 issue in pleadings filed by Plaintiff’s counsel,

Jacques Simon, in similar cases against the same or similar defendants. See, e.g., Order, ECF No. 28 in Guggenheim

v. McDonald, 25-cv-3615 (PKC) (S.D.N.Y. June 6, 2025) (“Fortunately, in response to a pre-motion letter filed by

defendants, plaintiff has expressed an intent to amend her complaint . . . PLAINTIFF AND HER COUNSEL ARE

ADVISED THAT A FAILURE TO ADHERE TO THE ‘SHORT AND PLAIN’ REQUIREMENTS OF RULE 8(a)(2)

IN AN AMENDED COMPLAINT WILL RESULT IN A DISMISSAL WITH PREJUDICE.” (caps in original)).

through impromptu interrogations, erroneous insinuations and scare tactics.” Id. ¶ 40. Perhaps

most dramatically, Plaintiff claims that Defendants “systematically harass anyone who comes into

their crosshairs in hopes of obtaining confessions of violations of the law based upon the

investigators’ knowingly false recitations of the law and false accusations levied against [Plaintiff]

about the violation . . . of the same.” Id. ¶ 43. Plaintiff also speculates that, during their

investigation into him, Defendants “must” have thought to themselves, “what is another

constitutional violation between friends, no one is going to challenge us.” Id. ¶ 295.

While these fiery accusations make for an interesting story, they fail to further Plaintiff’s

claims for relief. See Keitel, 2022 WL 15524665, at *2 (“Even assuming such allegations [are]

true—a far-fetched assumption—many, if not all, of them are irrelevant to Plaintiffs’ claims”

(citation and quotation marks omitted)); Rubin, 2023 WL 1972729, at *10 (holding that a

complaint violated Rule 8 where it contained “numerous hyperbolic accusations that have no

apparent bearing on Plaintiff’s actual claims.”).

Ultimately, for this and the reasons explained in the sections that follow, this Court

recommends dismissal of the Amended Complaint. However, in the event that the District Court

determines that Plaintiff’s claims should survive, this Court would respectfully recommend that

the District Court order the filing of a second amended complaint that complies with Rule 8 so as

to enable Defendants to answer a pleading which properly puts them on notice of the claims against

them. See Nygård v. Bacon, 19-cv-1559 (LGS), 2021 WL 3721347, at *7 (S.D.N.Y. Aug. 20, 2021)

(allowing the plaintiff to seek leave to replead where the complaint’s allegations were “too lengthy,

conclusory and confusing to put Defendant on notice of the claims against him.”). Alternatively,

this Court would respectfully recommend striking the “redundant, immaterial, impertinent, or

scandalous matter” within the Amended Complaint before requiring Defendants to answer it. Fed.

R. Civ. P. 12(f).

II. PLAINTIFF LACKS STANDING TO PURSUE PROSPECTIVE

DECLARATORY AND INJUNCTIVE RELIEF.

Turning to the issues raised in the Motion to Dismiss, Defendants argue that Plaintiff lacks

Article III standing to seek prospective declaratory and injunctive relief. “Standing is ‘the

threshold question in every federal case.’” Cohan v. Movtady, 751 F.Supp.2d 436, 439 (E.D.N.Y.

2010) (citing Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008)). If Plaintiff lacks

standing, this Court has no subject matter jurisdiction to hear this case and must dismiss it without

prejudice. See John, 858 F.3d at 735; Carter, 822 F.3d at 54 (“where a complaint is dismissed for

lack of Article III standing, the dismissal must be without prejudice, rather than with prejudice.”).

A. Standard for Standing

“[W]hen a plaintiff seeks prospective relief such as an injunction, the plaintiff must

establish a sufficient likelihood of future injury” to have standing. FDA v. All. for Hippocratic

Med., 602 U.S. 367, 381 (2024); see Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir.

2012) (“[t]o obtain prospective relief, such as a declaratory judgment or an injunction, a plaintiff

must show, inter alia, ‘a sufficient likelihood that he or she will again be wronged in a similar

way’” (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983))). “That is, a plaintiff must

demonstrate a ‘certainly impending’ future injury.” Marcavage, 689 F.3d at 103 (citations

omitted). “In establishing a certainly impending future injury, a plaintiff cannot rely solely on past

injuries; rather, the plaintiff must establish how he or she will be injured prospectively and that the

injury would be prevented by the equitable relief sought.” Id.; An v. City of New York, 230

F.Supp.3d 224, 232 (S.D.N.Y. 2017) (“A plaintiff seeking injunctive or declaratory relief cannot

rely on past injury to satisfy standing’s injury requirement but must show a likelihood that he or

she will be injured in the future.”) (citing Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344

(2d Cir. 1998)); see Guan v. Mayorkas, 530 F.Supp.3d 237, 256 (E.D.N.Y. 2021) (holding that the

plaintiffs were not entitled to a declaratory judgment that the defendants’ past conduct was

unlawful). To establish an injury sufficient to confer standing, a plaintiff may not simply “recast[]

a past harm as a continuing one.” Dorce v. City of New York, 2 F.4th 82, 96 (2d Cir. 2021).

Moreover, “conjecture or subjective fear that a plaintiff is in danger of sustaining an injury

is not sufficient to confer standing; the threat must be ‘sufficiently real and immediate to show an

existing controversy.’” Jacobs v. Ali, 18-cv-2909 (RRM), 2021 WL 12147769, *6 (E.D.N.Y. June

22, 2021) (citing Lyons, 461 U.S. at 103); see Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004)

(“abstract injury is not enough”). “Even a reasonable susceptibility” to such similar injury “does

not translate into the requisite ‘real and immediate threat of future injury.’” Heggs v. City of New

York, 17-cv-3234 (DG) (TAM), 2023 WL 9786044, at *13 (E.D.N.Y. Aug. 24, 2023) (citing

MacNamara v. City of New York, 275 F.R.D. 125, 141 (S.D.N.Y 2011)), report and

recommendation adopted, 2024 WL 759439 (E.D.N.Y. Feb. 23, 2024).

B. The Parties’ Positions

At bottom, Plaintiff seeks injunctive relief to enjoin Defendants from prospectively

engaging in the conduct described above—i.e. their investigation into Plaintiff—and to reinstate

Plaintiff’s NYSIIS access. See generally Am. Compl. Additionally, Plaintiff seeks a declaratory

judgment declaring Defendants’ conduct, the Subpoena, and the statute under which the Subpoena

was issued, unlawful.6 See generally id.

In moving to dismiss, Defendants argue that Plaintiff lacks standing to pursue his

prospective relief claims, as they arise solely from past conduct that took place between April 2024

6 As this Court discusses infra Discussion § III., Plaintiff also seeks to quash the Subpoena.

and June 2024. Indeed, Defendant Cruz and Defendant Burwell went to Advanced Medicine on

April 29, 2024, and June 12, 2024; Plaintiff allegedly lost NYSIIS access in early June 2024; and

Defendant Cruz and Defendant Burwell served the subpoena on Plaintiff on June 12, 2024. Am.

Compl. ¶¶ 80, 151, 160, 188. Indisputably, all of these events occurred before the Amended

Complaint’s filing.

In response, Plaintiff argues that Defendants’ violations of his constitutional rights are

ongoing. Specifically, Plaintiff argues that paragraphs 125–159, 290–321, and 324–361 of the

Amended Complaint sufficiently allege that the Fifth and Fourteenth Amendment violations are

prospective, and that paragraphs 189–289 of the Amended Complaint sufficiently allege that the

Fourth Amendment violations are prospective. See Pl.’s Mem. Opp’n at 4, ECF No. 53-2.

At the outset, this Court notes that to the extent that any of Plaintiff’s cited allegations

conclusorily assert that Defendants’ actions “continue” to harm Plaintiff, such allegations cannot

support standing, as they “fall[] short of establishing a ‘likelihood’ of future injury.” Conn.

Citizens Def. League, Inc. v. Lamont, 6 F.4th 439, 448 (2d Cir. 2021). Plaintiff’s allegations must

offer an actual reason to believe that he faces a sufficient likelihood of future harm. See id.

C. Plaintiff Lacks Standing to Seek Prospective Relief.

Ultimately, Plaintiff lacks standing to pursue his requested prospective relief, as he has

failed to establish that any of the events described in the Amended Complaint will result in

“certainly impending future injury.” Marcavage, 689 F.3d at 103. The events in question occurred

in the past, and Plaintiff has made no allegations suggesting they will certainly result in future

harm so as to confer standing to seek prospective relief.

Moreover, to the extent that Plaintiff claims he suffers injury due to the purported illegality

of Defendants’ conduct, such claims fail. A plaintiff “does not have standing to challenge a

government regulation”7 or action “simply because the plaintiff believes that the government is

acting illegally.” All. for Hippocratic Med., 602 U.S. at 381; see id. (“A citizen may not sue based

only on an ‘asserted right to have the Government act in accordance with law.’” (citation omitted)).

Rather, a plaintiff seeking declaratory and injunctive relief from an allegedly illegal government

action must establish nevertheless that such an action will injure the plaintiff in the future. See

Dorce, 2 F.4th at 95–96 (holding that the plaintiffs did not have standing to obtain declaratory and

injunctive relief from a purportedly unconstitutional government program where the plaintiffs

failed to allege that the program would injure them in the future). Plaintiff fails to do so here.

Specifically, with respect to Defendants’ general investigation and visits to Advanced

Medicine, the only allegations in the Amended Complaint supporting Plaintiff’s requested relief

are past incidents. Plaintiff alleges that Defendant Burwell and Defendant Cruz went to Advanced

Medicine in April and June of 2024, wherein they allegedly questioned Plaintiff, recorded a

conversation with him, took photos of the vaccine storage area, and served him with the Subpoena,

among other things. See generally Am. Compl.8 However, these alleged “‘past wrongs do not in

themselves amount to that real and immediate threat of injury necessary to make out a case or

controversy’ with respect to potential future similar wrongs.” Dorce, 2 F.4th at 96 (citing Lyons,

461 U.S. at 103).

Meanwhile, the Amended Complaint is otherwise devoid of any facts suggesting that

Defendants are going to return to Advanced Medicine, or that they would return under similar

circumstances to the previous visits. As such, any proposition that Defendants will return is

hypothetical and conjectural. Without allegations suggesting otherwise, Plaintiff cannot show that

7 Such as Public Health Law §§ 206(4)(a) and 12-a(1), the statute under which the Subpoena was issued.

8 Even Plaintiff acknowledges, in the Amended Complaint, that Defendants’ past visits to Advanced Medicine “are

not redressable by injunctive relief.” Am. Compl. ¶ 337. Plaintiff also admits that the “past constitutional violations

are alleged to give context to the lawsuit and not for the purposes of obtaining any relief.” Pl.’s Mem. Opp’n at 7.

he faces certainly impending future injury. Therefore, Plaintiff does not have standing to pursue

claims for prospective relief related to Defendants’ future investigation and visits to Advanced

Medicine. See Jacobs, 2021 WL 12147769, at *6 (holding that the plaintiff’s “unsupported

speculation” that he might be subjected to something unlawful in the future was insufficient to

confer standing).

Perhaps Plaintiff’s strongest argument that he is suffering an “ongoing” injury is with

respect to his NYSIIS access, which had not been restored as of the Amended Complaint’s filing.

See Am. Compl. ¶ 159. The problem for Plaintiff, however, is that he has failed to plausibly

establish that losing NYSIIS access will, indeed, cause him a future injury, in light of the Amended

Complaint’s many allegations downplaying Plaintiff’s vaccination practice.

For example, according to the Amended Complaint, Plaintiff “does not routinely vaccinate

his patients.” Id. ¶ 88. In fact, his practice is “not a routine vaccination practice,” “does not focus

on vaccinations,” and “does not have [a] surplus back-up stock” of vaccines. Id. ¶¶ 70, 109.

Plaintiff even states that his patients “could be categorized as vaccine hesitant.” Id. ¶ 92 (emphasis

in original).9

Rather than focus on vaccinations, Plaintiff’s practice goals—as he explained to Defendant

Cruz and Defendant Burwell—“involve using complementary and allopathic medicine modalities

to treat chronic disease conditions – neurodegenerative, immune dysregulations, endocrine/fatigue

problems, cancer support, orthopedic complaints, chronic pain, autism and others.” Id. ¶ 88.

9 Plaintiff also devotes multiple pages of his Amended Complaint to discussing problems associated with Covid-19

vaccines, suggesting that Covid-19 vaccinations are not a significant component of Plaintiff’s practice (if at all a

component). See id. ¶¶ 95–108. Indeed, Plaintiff believes that the “disproportionality of vaccine injuries and death

related to COVID 19 vaccines when compared with the vaccine injuries for all vaccines” is “nothing short than

frightening.” Id. ¶ 100.

While Plaintiff admits to having previously vaccinated patients, see e.g., id. ¶ 150, it is

implausible that losing NYSIIS access will cause Plaintiff future harm when his own allegations

go to great lengths to minimize the role and frequency of vaccinations at his practice. How could

Plaintiff be facing “certainly impending future injury” in losing NYSIIS access when he does not

“routinely” vaccinate patients? Id. ¶ 88. Even construing these allegations in his favor, Plaintiff

simply cannot have it both ways. After all, a “merely hypothetical and conjectural” injury does

not “rise to the level of being plausible.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140,

148 (2d. Cir. 2011). Accordingly, Plaintiff’s allegations regarding his own vaccination practice are

not plausibly pleaded so as to confer standing. See id.; Larsen v. Berlin Bd. of Educ., 588 F.Supp.3d

247, 256 (D. Conn. 2022) (“a court need not credit . . . contradictory allegations”); see also Hibbert

v. Cap. One Auto Fin., 23-cv-7538 (OEM), 2024 WL 3498536, at *3 (E.D.N.Y. July 22, 2024)

(“the Court need not credit allegations where . . . the ‘threadbare assertions are conclusory and do

not raise a reasonable inference of injury.’” (citing Calcano v. Swarovski N.A. Ltd., 36 F.4th 68, 76

(2d Cir. 2022))).

Additionally, for largely all the reasons already discussed, Plaintiff has failed to establish

that he faces “certainly impending future injury” from Plaintiff’s alleged “systematic pattern of

harassment and threats” so as to have standing to seek prospective relief. Am. Compl. ¶ 348; see

id. ¶ 363. In alleging that Defendants are engaged in a systematic pattern of harassment, Plaintiff

relies heavily on his allegation that Defendant Giovannetti sent “an unwarranted threat” in an email

to Plaintiff’s counsel on July 10, 2024. Id. ¶ 192.

However, the email itself, which Plaintiff attached to his Amended Complaint,10 practically

forecloses the possibility of future injury arising from the “systematic pattern of harassment.” See

10 “In determining the adequacy of the complaint, the court may consider any written instrument attached to the

complaint as an exhibit . . . .” Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005).

id. Ex. D. Defendant Giovannetti’s email, which was sent in response to an email from Plaintiff’s

counsel, advises Plaintiff’s counsel to “direct all future communication” to the Deputy Directory

of the DOH Litigation Bureau, suggesting that there would only be communication through

counsel moving forward. Id. To that end, the Amended Complaint itself contains no factual

allegations suggesting that Defendants will, in the future, contact Plaintiff directly.

Additionally, the text of the email itself contradicts the Amended Complaint’s allegations.

See id. ¶ 193. According to the Amended Complaint, Defendant Giovannetti, in his email,

“actually told Dr. Khan’s attorney . . . that the attorney should advise Dr. Khan regarding

Giovannetti’s accusation of destruction of medical records and threatened further prosecution

without any evidence that such intended destruction has taken or will be taking place at any time.”

Id. The Amended Complaint also alleges:

It is astounding that the defendant Giovannetti actually continued his pattern of

harassment after the commencement of this action knowing that his conduct will

be scrutinized by this Court. His email is nothing short than proof of the actual

nature of the interactions between the investigators and Dr. Khan which violated

and continue to violate Dr. Khan’s constitutional rights.

Id. ¶ 194.

The text of the email, however, tells a different story. See id. Ex. D. Defendant

Giovannetti’s email reads:

Counsel,

You misspelled my email address below. Presumably the error is why you were

unsuccessful in reaching me prior. Please see the subpoena that was served on your

client, and which you attached to your filing, for the correct spelling.

Please instruct your client to preserve all material in his possession relevant to our

subpoena and his vaccination practice. Concealment, alteration, or destruction

of this material may subject him to prosecution.

I’ve cc-ed Danielle Rysedorph, Deputy Director, Bureau of Litigation. Please direct

all future communication regarding this matter to Ms. Rysedorph or her designee.

If you need further assistance connecting with her, I’ll be happy to assist.

Thank you,

Joe Giovannetti

Id. (emphasis in original).

As Plaintiff rightly predicted, this Court is “scrutinizing” Dr. Giovannetti’s email (as

Plaintiff attached the email to the Amended Complaint). See id. However, even drawing all

inferences in Plaintiff’s favor, this Court can only interpret Defendant Giovannetti’s email to

essentially be a cautionary litigation hold notice—not a threat or accusation. The email does not

suggest that Plaintiff faces a certainly impending future injury and, if anything, actually renders

implausible Plaintiff’s allegations to the contrary. See Larsen, 588 F.Supp.3d at 256 (“a court need

not credit . . . contradictory allegations.”).

In sum, Plaintiff has failed to establish that he faces a certainly impending future injury,

and thus lacks standing to seek prospective injunctive and declaratory relief.

III. PLAINTIFF’S CAUSE OF ACTION SEEKING TO QUASH THE

SUBPOENA IS NOT RIPE.

In a purported cause of action brought under Federal Rule 45 of Civil Procedure and the

federal declaratory judgment statute, Plaintiff also seeks an order revoking and quashing the

Subpoena. See Am. Compl. ¶¶ 196–289. However, Plaintiff’s request for such an order is

premature and thus not ripe for adjudication.

“The ripeness doctrine is drawn both from Article III limitations on judicial power and

from prudential reasons for refusing to exercise jurisdiction.” N.Y. Civil Liberties Union v.

Grandeau, 528 F.3d 122, 130 (2d Cir. 2008) (Sotomayor, J.) (quoting Nat’l Park Hosp. Ass’n v.

Dep’t of Interior, 538 U.S. 803, 808 (2003)). “A central purpose of this doctrine is to prevent the

courts, through avoidance of premature adjudication, from entangling themselves in abstract

disagreements over administrative policies.” Id. at 130–31 (citation omitted).

As relevant here, courts have found that seeking to quash an administrative subpoena is

premature, and thus not ripe for judicial review, where the government agency has issued the

subpoena, but not yet sought to enforce it. See Mohammadi v. Tong, 24-cv-01473-KAD, 2025 WL

1029862, at *2 (D. Conn. Apr. 7, 2025) (collecting cases); see id. (holding that request to quash a

subpoena was premature where the party was not yet required to comply with subpoena). For

example, in Google, Inc. v. Hood, the Mississippi State Attorney General issued an administrative

subpoena to Google seeking documents and answers to interrogatories. See 822 F.3d 212, 218,

219 (5th Cir. 2016). “[W]ithout further responding to the administrative subpoena or seeking relief

in state court,” Google sued the Mississippi AG in federal court to challenge the subpoena. Id. at

219. As the Mississippi AG had not yet brought an action to enforce the subpoena, however, the

Fifth Circuit found that Google’s challenge to the administrative subpoena was not ripe for judicial

review, and that the district court had thus erred in not rejecting Google’s pre-enforcement

challenge. See id. at 224–26.

Similarly, in Schulz v. I.R.S., the plaintiff had commenced an action to quash a series of

administrative summonses from the IRS seeking testimony and documents. See 395 F.3d 463, 464

(2d Cir. 2005) (per curiam). The Second Circuit held that the plaintiff’s challenge to the

summonses did not amount to a case and controversy subject to judicial review, as the IRS had not

yet initiated a procedure to enforce the summonses against the plaintiff. See id. Although the court

did not assess whether the plaintiff’s challenge to the summonses was “ripe,” the court found that

prematurity of the plaintiff’s challenge meant that the plaintiff was not threatened with an injury,

and thus there was no case or controversy entitling plaintiff to seek relief. See id. at 464–65.

In Exxon Mobil Corp. v. Schneiderman, the court held, applying Hood and Schulz, that the

plaintiff’s challenge to a subpoena issued by the New York State Attorney General was ripe for

judicial review where a New York State court had previously ordered the plaintiff to comply with

the subpoena by producing documents and giving testimony. See 316 F.Supp.3d 679, 695–96

(S.D.N.Y. 2018). The court further held that because the plaintiff could not “refuse to respond to

the document demands without consequence,”—namely, sanctions for failing to comply with the

state court’s orders—the plaintiff’s claims were ripe. Id. at 696.

Here, the only substantive, non-conclusory factual allegation regarding the Subpoena is

that Defendant Cruz and Defendant Burwell served it on Plaintiff on June 12, 2024. Am. Compl.

¶ 188. Plaintiff does not allege that Defendants have sought to enforce the subpoena, let alone

follow up on it. In fact, in his opposition to the Motion to Dismiss, Plaintiff concedes this point—

even citing Hood in doing so. See Pl.’s Mem. Opp’n at 22. Plaintiff’s opposition reads, in relevant

part:

Moreover, where the defendants merely served a subpoena and have not yet moved

in state court to enforce it, Younger abstention clearly does not apply. As of now,

defendants have not moved to enforce the administrative subpoena in any state

court, nor has any judicial or quasi-judicial tribunal begun proceedings against

the Plaintiff. Google, Inc. v. Hood, 822 F.3d at 223 supra citing Ankenbrandt v.

Richards, 504 U.S. 689, 705, 112 S. Ct. 2206, 119 L. Ed.2d 468 (1992) (holding

Younger abstention clearly erroneous “[a]bsent any pending proceeding in state

tribunals”).

Id. (emphasis in original).

As such, and by Plaintiff’s own concession, Plaintiff’s purported cause of action seeking

to quash the subpoena is not ripe for adjudication. Should Defendants eventually seek to enforce

or otherwise compel Plaintiff’s compliance with the Subpoena, Plaintiff will remain free to

challenge the Subpoena at that time—which Defendants concede. See Reply at 4, ECF No 53-4

(“assuming for the sake of argument that Defendants did seek to enforce the Subpoena in the future,

Khan would have notice of such action, [and] an opportunity to object . . . .”). For now, however,

Plaintiff’s attempt to seek relief from the Subpoena is premature.

IV. OTHER GROUNDS FOR DISMISSAL

Defendants also move to dismiss the Amended Complaint on Eleventh Amendment

grounds, and for Plaintiff’s failure to state a claim. Given this Court’s lack of subject matter

jurisdiction over this case—due to Plaintiff’s failure to establish Article III standing, as well a case

or controversy ripe for judicial review with respect to his claim seeking to quash the Subpoena11—

this Court need not address Defendants’ other arguments for dismissal at this time. See Dees v.

Zurlo, 24-cv-1 (MAD), 2024 WL 2291701, at *13 (N.D.N.Y. May 21, 2024) (“there is no

requirement that a court address every single potential ground for dismissal where it is clear that a

claim should be dismissed.”).

V. PLAINTIFF’S PROPOSED ADDITIONAL SUBMISSIONS

On April 24, 2025, Plaintiff filed a letter with the Court seeking leave to submit a

“supplemental certification” and additional memorandum of law in support of the Motion for a

Preliminary Injunction and in opposition to the Motion to Dismiss. See Pl.’s Letter. Plaintiff’s

letter also requested a pre-motion conference to discuss the filing of a possible second amended

complaint. See id. Defendants opposed Plaintiff’s requests. See Defs.’ Letter.

To summarize, Plaintiff’s letter seeks to inform the Court of a recent development.

Apparently, Defendants have since placed Plaintiff’s name on what Plaintiff calls, “a public

branding list.” See Pl.’s Letter, Ex. A. The list in question is a web post from the DOH website

entitled “School Vaccination Fraud Awareness.” See id. Under a subheading entitled, “Be aware

when reviewing school vaccination records,” there is a list of healthcare providers, each

11 Not to mention the Amended Complaint’s failure to comply Rule 8. See supra Discussion § I.

accompanied by a warning specific to the particular provider. See id. Plaintiff is listed among the

providers as follows:

Faiz Khan, MD (Advanced Medicine of Long Island) Currently suspended from

using the New York State Immunization Information System as of 5/30/2024.

Paper-only records of vaccinations administered after this date from this provider

must not be accepted.

Id.

Plaintiff asserts that this web post is a “continuous violation” of his due process rights, and

that the web post “label[s] and designate[s] the Plaintiff as an individual involved in both criminal

and disciplinary conduct of vaccine fraud.” See id. at 2. Plaintiff complains that this “branding”

is made without: the due process afforded to him under Public Health Law § 12-a; a formal hearing

or determination of misconduct by the State Board of Professional Medicinal Conduct under Public

Health Law § 230 and State Administrative Procedure Act §§ 301–401; any trial and criminal

conviction of vaccine fraud; and “anything at all short of the unsupported summary official action

taken by the state defendants on this web site.” Id. Plaintiff further contends that Defendants

“have no statutory authority to maintain this website, to summarily convict and punish medical

licensees in such a summary fashion by publication and without due process while restricting

Plaintiff’s license in the manner stated in the posting.” Id.

As a preliminary matter, this Court clarifies that, despite Plaintiff’s description, the web

post does not state that Plaintiff has been convicted of a crime. See generally id. As a practical

matter, however, this additional submission does not save Plaintiff’s claims, as this later

development does not impact the Court’s original standing analysis.

“[S]tanding is to be determined as of the commencement of the suit.” Lujan v. Defs.’ of

Wildlife, 504 U.S. 555, 570 n.5 (1992); see Hargrave v. Vermont, 340 F.3d 27, 34 n.7 (2d Cir. 2003)

(“standing determinations must be made on the basis of what was known at the time a suit was

initially filed”); see also Metcalf v. TransPerfect Translations Int’l, Inc., 632 F. Supp. 3d 319, 337

(S.D.N.Y. 2022) (“It is black-letter law that ‘the jurisdiction of the court depends upon the state of

things at the time of the action brought.’” (citation omitted)). While this web post may very well

have injured Plaintiff, Plaintiff did not make allegations suggesting that such was a “certainly

impending future injury” at the time he filed the Amended Complaint. Accordingly, this Court

cannot account for the web post in determining whether Plaintiff has standing to sue, and thus the

fact remains that this Court lacks subject matter jurisdiction over this case. Therefore, any

supplemental “certification” or memorandum of law that Plaintiff could file regarding this web

post would be futile.

Relatedly, as this Court lacks subject matter jurisdiction, Plaintiff should not be granted a

premotion conference to discuss the filing of another amended complaint. See Cortlandt St.

Recovery Corp. v. Hellas Telecomms., S.a.r.l, 790 F.3d 411, 422 (2d Cir. 2015) (“A court may not

permit an action to continue, even where the jurisdictional deficiencies have been subsequently

cured, if jurisdiction was lacking at the commencement of a suit” (citations and quotations

omitted)); see id. (noting that the District Court could not have permitted an amended complaint

where there was no valid lawsuit to begin with).

CONCLUSION

For the foregoing reasons, this Court respectfully recommends that the District Court

GRANT the Motion to Dismiss, dismiss the Amended Complaint without prejudice, and DENY

as moot the Motion for a Preliminary Injunction and Motion to Quash. This Court further

respectfully recommends that the District Court deny Plaintiff’s request to submit a “supplemental

certification” and additional memorandum of law, as well as Plaintiff’s request for a premotion

conference regarding the filing of a possible second amended complaint.

OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Under 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure,

the parties shall have fourteen (14) days from service of this Report and Recommendation to file

written objections. Failure to file timely objections shall constitute a waiver of those objections

both in the District Court and on later appeal to the United States Court of Appeals. See Frydman

v. Experian Info. Sols., Inc., 743 F. App’x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc.,

338 F. App’x 24, 26 (2d Cir. 2009); Tavarez v. Berryhill, 15-cv-5141 (CS) (LMS), 2019 WL

1965832, at *30 (S.D.N.Y. May 1, 2019); see also Thomas v. Arn, 474 U.S. 140 (1985).

SO ORDERED.

/s

Steven L. Tiscione

United States Magistrate Judge

Eastern District of New York

Dated: Central Islip, New York

August 29, 2025.