Kirby

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DAVID L. KIRBY, III,

Plaintiff,

V.

No. 5:25-CV-324

GRAHAM SPICER, et al., (AMN/PJE)

Defendants.

APPEARANCES:

David L. Kirby, III

25-B-1877

Clinton Correctional Facility

P.O. Box 2001

Dannemora, New York 12929

_| Plaintiff pro se

PAUL J. EVANGELISTA

U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER"

|. In Forma Pauperis

Plaintiff pro se David L. Kirby, III (“plaintiff?) commenced this action on March 12,

m| 2025, by filing a complaint. See Dkt. No. 1. In lieu of paying this Court’s filing fee, plaintiff

This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.

§ 636(b) and N.D.N.Y. L.R. 72.3(c).

? The undersigned notes that plaintiff has filed thirteen other actions with this Court. See Kirby v. Jamesville

Correctional Facility, 9:21-CV-87 (GTS/ML) (terminated Oct. 1, 2021); Kirby v. B. Hanks, et al., 9:21-CV-

1030 (terminated Apr. 26, 2022); Kirby v. Hanks, et al., 5:21-CV-866 (MAD/MJkK) (terminated Sept. 24,

2024); Kirby v. SPD, et al., 9:22-CV-210 (terminated Nov. 16, 2022); Kirby v. Hanks, 5:24-CV-124

(MAD/ML) (terminated Sept. 23, 2024); Kirby v. Cruz, et al., 9:24-CV-264 (AMN/DJS) (terminated Aug. 12,

2024); Kirby v. Syracuse Police Dep’t, 5:24-CV-522 (BKS/TWD) (terminated July 10, 2025); Kirby v. City of

Syracuse Onondaga County Justice Center, 9:24-CV-1366 (GTS/PJE) (terminated Mar. 11, 2025); Kirby v.

Cruz, et al., 9:24-CV-1159 (BKS/PJE) (terminated May 8, 2025); Kirby v. State of New York et al, 9:25-CV-

159 (AMN/DJS) (terminated Jun. 18, 2025); Kirby v. Limpert, 5:25-CV-202 (LEK/MJK) (terminated Aug. 14,

submitted an application for leave to proceed in forma pauperis (“IFP”). See Dkt. Nos. 5,

6. Plaintiff also filed a motion for appointment of counsel. See Dkt. No. 9. The

undersigned has reviewed plaintiff's IFP application and determines that he financially

qualifies to proceed IFP.2 The undersigned must now assess the merits of plaintiff's

complaint pursuant to 28 U.S.C. §§ 1915, 1915A.

ll. Initial Review

A. Legal Standards

28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall

dismiss the case at any time if the court determines that .. . the action or appeal (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

_,|1915(e)(2)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly

maintain his complaint before permitting him to proceed further with his action.” Praileau

v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).

Where, as here, the plaintiff proceeds pro se, “the court must construe his

submissions liberally and interpret them to raise the strongest arguments that they

suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)

m| (internal quotation marks and citation omitted). As the Second Circuit stated,

[tIhere are many cases in which we have said that a pro se

litigant is entitled to special solicitude, that a pro se litigant’s

submissions must be construed liberally, and that such

submissions must be read to raise the strongest arguments

that they suggest. At the same time, our cases have also

2025); Kirby v. Buekers, 5:25-CV-362 (ECC/DJS) (terminated Oct. 8, 2025); Kirby v. The Post-Standard, et

al., 5:25-CV-564 (DNH/TWD) (terminated May 7, 2025).

3 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and

costs he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness

fees.

indicated that we cannot read into pro se submissions claims

that are not consistent with the pro se litigant’s allegations, or

arguments that the submissions themselves do not suggest,

that we should not excuse frivolous or vexatious filings by pro

se litigants, and that pro se status does not exempt a party

from compliance with relevant rules of procedural and

substantive law. .. .

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation

marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537

F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded

district courts that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe

his pleadings liberally.”) (internal quotation marks and citations omitted). Thus, the Court

is not required to accept unsupported allegations that are devoid of sufficient facts or

claims. Although detailed allegations are not required at the pleading stage, the complaint

still include enough facts to provide the defendants with notice of the claims against

them and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).

Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

m| reasonable inference that the defendant is liable for the misconduct alleged.”).

“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,

because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure.”4

Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec.

4 Hereinafter, “Fed. R. Civ. P.”

13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).° Specifically, Rule 8

provides that a pleading which sets forth a claim for relief shall contain, among other

things, “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Feb. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being

asserted so as to permit the adverse party the opportunity to file a responsive answer,

prepare an adequate defense and determine whether the doctrine of res judicata is

applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation

marks and citations omitted). Rule 8 also requires the pleading to include “a short and

plain statement of the grounds for the court’s jurisdiction ... and. □□□ demand for the

relief sought... .” Feb. R. Civ. P. 8(a). Although “[nJo technical form is required,” the

Federal Rules make clear that each allegation contained in the pleading “must be simple,

concise, and direct.” Feb. R. Civ. P. 8(d).

Further, Rule 10 provides in pertinent part that:

[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set

of circumstances. A later pleading may refer by number to a

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence—and each defense other than a denial—must be

stated in a separate count or defense.

R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of

identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189

F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to

comply with the pleading requirements “presents far too a heavy burden in terms of

defendants’ duty to shape a comprehensive defense and provides no meaningful basis

5 All unpublished cases cited in this Report-Recommendation and Order, unless otherwise noted, have

been provided to plaintiff.

for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352,

355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not

comply with the requirement that it be short and plain, the court has the power, on its own

initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.

1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for those cases in

which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its

true substance, if any, is well disguised.” /d. (citations omitted).

“If dismissal is warranted and the plaintiff is pro se, the court generally affords the

plaintiff leave to amend the complaint.” Rich v. AKAwesasne Mohawk Casino Resort, No.

8:24-CV-255 (AMN/CFH), 2024 WL 3677262, at *2 (N.D.N.Y. Aug. 6, 2024), report and

recommendation adopted, No. 8:24-CV-255 (AMN/PJE), 2025 WL 286937 (N.D.N.Y. Jan.

_,|24, 2025) (citing Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995)). “However, an

opportunity to amend is not required where ‘the problem with [the plaintiff's] causes of

action is substantive’ such that ‘better pleading will not cure it.” /d. (quoting Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

Ill. Discussion

A. Plaintiff's Complaint

m Plaintiff claims that attorneys Graham Spicer (“Spicer”) and Patrick Hennessy

(“Hennessy”) were “working against” him and “not for [his] freedom.” Dkt. No. 1 at 2.

Plaintiff asserts that his Fifth and Sixth Amendment rights were violated because he “sent

off motions on [his] court cases” to Spicer and Hennessy, but Spicer and Hennessy “went

against [his] motions and denied them.” /d. Plaintiff alleges that Hennessy “denied” his

motions on March 4, 2025, and Spicer “denied” his motions on March 14, 2025, both in

Judge Limpert’s courtroom. /d. Plaintiff seeks $100,000 in damages. See id. at 4.

B. Analysis

Liberally construing plaintiff's complaint, it appears that plaintiff seeks to proceed

pursuant to 42 U.S.C. § 1983 against Spicer and Hennessy for allegedly violating his Fifth

“| Amendment and Sixth Amendment rights. See generally Dkt. No. 1; see also Triestman,

470 F.3d at 475 (“This policy of liberally construing pro se submissions is driven by the

understanding that ‘[iJmplicit in the right of self-representation is an obligation on the part

of the court to make reasonable allowances to protect pro se litigants from inadvertent

forfeiture of important rights because of their lack of legal training.’””) (quoting Traguth v.

Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

1. Fed. R. Civ. P. 8

As a threshold matter, plaintiff's complaint fails to satisfy the pleading requirements

of Rule 8. See FED. R. Civ. P. 8(a). Plaintiff's complaint does not provide “a short and

plain statement of the claim showing” why they are entitled to relief. /d. In support of his

allegations that Spicer and Hennessy “deprived [him] of [his] rights” and provided

ineffective assistance of counsel, plaintiff appears to allege that that Spicer and Hennessy

fefused to file motions he drafted for unspecified court proceedings. See Dkt. No. 1 at 2-

3.

Plaintiff's complaint conclusorily states that his Fifth Amendment rights were

violated, but the substance of the complaint fails to raise any allegation concerning any

Fifth Amendment right. See Dkt. No. 1 at 2. It is not clear from the complaint which clause

of the Fifth Amendment plaintiff intends to be triggered or how the defendants were

involved in any violation that may be alleged. Further, defendant has not named the

federal government as a defendant. See Martin-Trigona v. D'Amato & Lynch, 559 F.

Supp. 533, 535 (S.D.N.Y. 1983) (“Plaintiff's claim ignores the fundamental principle that

the Fifth Amendment only concerns Federal government or other official action.”); see

Dzwonczyk v. Syracuse City Police Dep't, 710 F. Supp. 2d 248, 262 (N.D.N.Y. 2008)

(noting that “[t]he Fifth Amendment, like all the other guaranties in the first eight

amendments, applies only to proceedings by the Federal Government” but that it would

apply “to the states through the Due Process Clause of the Fourteenth Amendment’)

(internal citation omitted). Thus, it is not clear how the Fifth Amendment applies to

plaintiff's lawsuit as currently pled.

Plaintiff also states that his Sixth Amendment rights were violated. See generally

_,| Dkt. No. 1. The Sixth Amendment affords criminal defendants the right to assistance of

counsel in defending actions commenced against them. See U.S. CONST. amend. VI;

McMann v. Richardson, 397 U.S. 759, 771, n.14 (2012) (additional citations omitted)

(“[T]he right to counsel is the right to effective assistance of counsel.”). Affording plaintiff

due solicitude and reading his complaint liberally, plaintiff appears to allege that Spicer

and Hamilton failed to afford him affective assistance of counsel. See generally Dkt. No.

m| 1. As stated above, plaintiff states that he “sent off motions on [his] court cases” to Spicer

and Hennessy, but Spicer and Hennessy “went against [his] motions and denied them.”

Dkt. No. 1 at 2. Yet, without any additional details or context, this claim is a baseless

conclusion. Plaintiff does not even clearly state whether Spicer and Hennessy were, in

fact, his attorneys. See generally Dkt. No. 1. He fails to (1) identify matter(s) in which

Spicer and Hennessy were representing him; (2) clearly indicate whether the matter(s)

were civil or criminal in nature;® (3) the actions or omissions which rendered Spicer’s and

Hennessy’s representation ineffective; (4) the substance of, or relief sought, in the

motions he drafted for Spicer and Hennessy to file; or (5) whether Spicer and Hennessy

provided plaintiff any reasoning for their alleged refusal to file the motions. See id.

Plaintiff's complaint does not comply with Rule 8 as it does not provide “fair notice

"| of the claim[s] being asserted” against Spicer and Hennessy or an adequate opportunity

for Spicer and Hennessy to file an answer and “prepare an adequate defense.” Flores,

189 F.R.D. at 55; Feb. R. Civ. P. 8(a)(2). Although the Second Circuit has observed that

pro se plaintiffs should generally be afforded leave to amend, as will be discussed below,

the problems with plaintiff's causes of action are “substantive.” Rich, 2024 WL 3677262,

at *2 (quoting Cuoco, 222 F.3d at 112); Ruffalo v. Oppenheimer & Co., 987 F. 2d. 129,

(2d. Cir. 1993) (“Where it appears that granting leave to amend is unlikely to be

productive, however, it is not an abuse of discretion to deny leave to amend.”).

1. State Action

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured

by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” Gerken v.

m| Gordon, No. 1:24-CV-435 (MAD/CFH), 2024 WL 4608307, at *11 (N.D.N.Y. Oct. 29,

2024), report and recommendation adopted, No. 1:24-CV-435 (MAD/CFH), 2024 WL

5001402 (N.D.N.Y. Dec. 6, 2024) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). “The

traditional definition of acting under color of state law requires that the defendant...

® See Zielinski v. Annucci, No. 9:17-CV-1087 (GTS/CFH), 2018 WL 11243393, at *4, n.3 (N.D.N.Y. Jan. 11,

2018) (citing Turner v. Rogers, 564 U.S. 431, 451 (2011) and United States v. Coven, 662 F.2d 162, 176

(2d Cir. 1981)) (“I]t is well-settled that the Sixth Amendment right to ‘the Assistance of Counsel’ does not

apply to civil proceedings.”).

exercise[ ] power possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law.” /d. (quoting West, 487 U.S. at 49)

(internal quotation marks and citation omitted)). “Because the United States Constitution

regulates only the Government, not private parties, [with respect to a claim brought under

§ 1983,] a litigant claiming that his constitutional rights have been violated must first

establish that the challenged conduct constitutes state action.” /d. (quoting Flagg □□

Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotations omitted)

(quoting United States v. Int’) Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir.

1991)); see Baum v. N. Dutchess Hosp., 764 F. Supp. 2d 410, 419 (N.D.N.Y. 2011) (“State

action is an essential element of any § 1983 claim.”) (citing Lugar v. Edmondson Oil Co.,

Inc., 457 U.S. 922, 934 (1982) (explaining that the “under color of any statute” language

to enforce the provisions of the Fourteenth Amendment and that if a defendant's

conduct satisfies the state-action requirement then that conduct is also action under color

of state law under § 1983), and Rounseville v. Zahl, 13 F.3d 625, 627-28 (2d Cir. 1994)

(noting the state action requirement for § 1983)).

“Private parties generally are not state actors and therefore are not usually liable

under [§] 1983.” Gerken, 2024 WL 4608307, at *11 (quoting Yi Sun v. Saslovsky, No.

m| 1:19-CV-10858 (LTS), 2020 WL 6828666, at *7 (S.D.N.Y. Aug. 6, 2020) (citing Sykes v.

Bank of America, 723 F.3d 399, 406 (2d Cir. 2013)); see Basile v. Connolly, 538 F. App’x

5, 7 (2d Cir. 2013) (Summary order) (“[P]rivate individuals . . . cannot be sued under 42

U.S.C. § 1983 absent a plausible allegation that they acted under color of state law.”). “A

private party’s actions can be considered state action in three situations’:

(1) the private party acts using the coercive power of the state or is

controlled by the state (the “compulsion test”); (2) the private party willfully

participates in joint activity with the state or its functions are entwined with

state policies (the “joint action” or “close nexus” test); or (3) the state has

delegated a public function to the private party (the “public function” test).

Id. (quoting Rogers v. City of New Rochelle, No. 1:19-CV-0479 (CM), 2019 WL 5538031,

at *2 (S.D.N.Y. Oct. 25, 2019) (quoting Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.

2012)). “The fundamental question under each test is whether the private party’s

challenged actions are ‘fairly attributable’ to the State.” /d. (quoting Rogers, 2019 WL

5538031, at *2 (quoting Fabrikant, 691 F.3d at 207)). “[A] State normally can be held

responsible for a private decision . . . when it has . . . provided such significant

encouragement, either overt or covert, that the choice must in law be deemed to be that

of the State.” /d. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (citations omitted).

The State’s “[mJere approval of or acquiescence in the initiatives of a private party,

however,] is not sufficient to justify holding the State responsible for those initiatives

.... Id. (quoting Blum, 457 U.S. at 1004-05).

“Private attorneys, whether court appointed or privately retained, are generally not

liable under § 1983.” Strong v. New York, No. 1:19-CV-63 (MAD/CFH), 2019 WL

1763010, at *6 (N.D.N.Y. Apr. 22, 2019), report and recommendation adopted, No. 1:19-

CV-63 (MAD/CFH), 2019 WL 2723372 (N.D.N.Y. July 1, 2019) (quoting Kunz v. Brazill,

m|No. 6:14-CV-1471 MAD, 2015 WL 792096, at *7 (N.D.N.Y. Feb. 25, 2015) (citing

Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (‘“[I]t is well-established that court-

appointed attorneys performing a lawyer’s traditional functions as counsel to defendant

do not act ‘under color of state law’ and therefore are not subject to suit under 42 U.S.C.

§ 1983.”) (citation omitted))); Browdy v. Karpe, 131 F. App’x 751, 753 (summary order)

(2d Cir. 2005) (quoting Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir.1997) (citing

10

Housand v. Heiman, 594 F.2d 923, 924-25 (2d Cir. 1979) and Polk County v. Dodson, 454

U.S. 312, 325, (1981)) (“[P]ublic defenders and court-appointed attorneys ‘performing a

lawyer’s traditional functions as counsel’ to a defendant do not act ‘under color of state

law’ and, therefore, are not subject to suit under 42 U.S.C. § 1983.”).

Here, it appears that Spicer and Hennesy were plaintiffs attorneys in an

unspecified court proceeding(s). See Dkt. No. 1 at 2. As plaintiff's complaint fails to allege

any facts suggesting that Spicer and Hennessy were acting under the color of state law

and because Spicer and Hennessy were “performing [their] ‘traditional functions as

counsel to defendant’ during the alleged violation, [they] cannot be held liable pursuant to

§ 1983.” Browdy, 131 F. App’x at 753; see also Gerken, 2024 WL 4608307, at *11.

Although it is possible to demonstrate state action under § 1983 through a

_,|defendant’s participation in a conspiracy, “[t]here is no indication in the complaint that

[Spicer or Hennessy were] . . . ‘willful participant[s] in joint activity with the State or its

agents,’ as is required in order for the Court to find that a private party has engaged in

state action.” Strong, 2019 WL 1763010, at *7 (quoting Adickes v. S. H. Kress & Co., 398

U.S. 144, 152 (1970)). Accordingly, the undersigned recommends dismissing plaintiff's

complaint with prejudice and without opportunity to amend because Spicer and

m| Hennessy, whether appointed or private counsel, are not state actors, and plaintiff's

complaint does not in any way suggest conduct “fairly attributable to the state.” Rich,

2024 WL 3677262, at *2 (quoting Cuoco, 222 F.3d at 112); Gerken, 2024 WL 4608307,

at *11; Triestman, 470 F.3d at 477 (“[O]ur cases have also indicated that we cannot read

into pro se submissions claims that are not consistent with the pro se litigant’s allegations,

or arguments that the submissions themselves do not suggest.”) (internal citations and

quotation marks omitted). Further, even if plaintiff were able to amend to allege such

conduct, providing an opportunity to do so is unwarranted because, as will be discussed

below, plaintiff's claims are also barred by Heck v. Humphrey.

2. Heck Preclusion

If Spicer and Hennessy represented plaintiff in a criminal proceeding,’ as plaintiff's

complaint most reasonably suggests, this action is also barred by Heck v. Humphrey, 512

U.S. 477 (1994). “Acivil lawsuit may not be used to collaterally attack an existing criminal

conviction.” Barzee v. Tyler, No. 8:21-CV-902 (GTS/CFH), 2022 WL 1406606, at *10

(N.D.N.Y. May 3, 2022), report and recommendation adopted, No. 8:21-CV-902

(GTS/CFH), 2022 WL 2079084 (N.D.N.Y. June 9, 2022) (citing Heck, 512 U.S. at 484-

86).

In Heck, the Supreme Court of the United States held that a Section 1983

action seeking damages is not cognizable if a decision in favor of the plaintiff

would necessarily invalidate an extant criminal conviction unless “the

conviction or sentence had been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal ... or called into question

by a federal court’s issuance of a writ of habeas corpus.”

Id. (quoting Heck, 512 U.S. at 486-87). □□ claim for damages bearing that relationship to

a conviction or sentence that has not been so invalidated is not cognizable under § 1983.”

Heck, 512 U.S. at 487.

tt

Here, “[p]laintiff has failed to demonstrate that any criminal charge(s), conviction,

or sentence has been ‘reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called into question

7 If defendants represented plaintiff in a civil proceeding as retained counsel, plaintiff's claim would amount

to, at most, legal malpractice, which is not cognizable under § 1983. See Ali v. Shattuck, No. 8:24-CV-

0128 (DNH/CFR), 2024 WL 2747619, at *6 (N.D.N.Y. May 29, 2024), report and recommendation adopted

sub nom. Ali v. Dow, No. 8:24-CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024).

12

by a federal court’s issuance of a writ of habeas corpus.” Cole v. Smrtic, No. 1:24-CV-

847 (MAD/CFH), 2024 WL 4870495, at *5 (N.D.N.Y. Nov. 21, 2024), report and

recommendation adopted, No. 1:24-CV-847 (MAD/PJE), 2025 WL 247901 (N.D.N.Y. Jan.

21, 2025) (quoting Zografidis v. Richards, No. 3:22-CV-631 (AVC), 2022 WL 21756775,

at *7 (D. Conn. July 6, 2022), report and recommendation adopted (Oct. 7, 2022), aff'd,

No. 22-3197, 2023 WL 7538211 (2d Cir. Nov. 14, 2023)).

Plaintiff's complaint states that his Fifth and Sixth Amendment rights were violated.

See generally Dkt. No. 1. As a finding in plaintiff's favor on such claims would “necessarily

invalidate” a criminal conviction, “plaintiff's claims are barred by Heck unless and until he

can demonstrate favorable termination of his criminal conviction.” Cole, 2024 WL

4870495, at *5; Cato v. Bleakley, No. 20-CV-7087 (EAW), 2021 WL 4595427, at *4

(W.D.N.Y. Oct. 6, 2021) (quoting Heck, 512 U.S. at 490) (“[l]n order to recover damages

under Section 1983 for harm ‘attributable to an unconstitutional conviction or

sentencing[,]’ the conviction or sentence must first be invalidated. Where the claim has

not first been invalidated, the cause of action under Section 1983 is not cognizable

because it has not yet accrued.”).® Plaintiff does not suggest any such favorable

termination, and the NYDOCCS incarcerated lookup website provides that plaintiff is

Currently incarcerated, starting in August 2025,° on a life sentence. '°

undersigned recognizes that claims that are determined to be barred by Heck are dismissed without

prejudice.” Cole, 2024 WL 4870495, at “5, n.7. However, the undersigned is recommending dismissal of

plaintiffs § 1983 claims with prejudice because of plaintiff's failure to demonstrate that any defendants are

state actors. “The undersigned has included the Heck review for sake of completeness.” /d. However,

should the District Judge disagree and wish to dismiss on the basis of Heck, it is alternatively recommended

that the complaint be dismissed without prejudice but without opportunity to amend in this action. See id.

° NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, “Find an Offender

Incarcerated Lookup,” “Kirby, David L.” https://nysdoccslookup.doccs.ny.gov/ (last visited Oct. 22, 2025).

“The Court obtained Plaintiff's transfer date from the inmate lookup service on the official website of the

New York State Department of Corrections and Community Supervision (“DOCCS”) using Plaintiffs

Identification Number, [25B1877]. ‘Courts in this district have taken judicial notice of information obtained

13

IV. Leave to Amend

Generally, “[a] pro se complaint should not be dismissed without the Court granting

leave to amend at least once when a liberal reading of the complaint gives any indication

that a valid claim might be stated.” Gerken, 2024 WL 4608307, at *15 (quoting Nielsen

v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation and internal quotation marks omitted)).

“However, if the problems with a complaint are ‘substantive’ rather than the result of an

‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would be ‘futile’

and ‘should be denied.” /d. (quoting Edwards v. Penix, 388 F. Supp. 3d 135, 144-45

(N.D.N.Y. 2019) (quoting Cuoco, 222 F.3d at 112).

Here, it is recommended that plaintiff's claims be dismissed with prejudice and

without opportunity to amend because (1) Spicer and Hennessey are not state actors,

(2) plaintiff has not alleged that defendants’ conduct is “fairly attributable to the state.”

Gerken, 2024 WL 4608307, at *11; Strong, 2019 WL 1763010, at *7; Cole, 2024 WL

4870495, at *5. It is not recommended that plaintiff be given an opportunity to amend in

this action to allege such conduct because plaintiff's claims are also barred by Heck.

However, should the District Judge disagree with the dismissal recommendation based

on the no state actor ground, it is alternatively recommended that this matter be dismissed

Without prejudice but without opportunity to amend in this action due to Heck.

IV. Appointment of Counsel

from online inmate tracking services.” Jackson v. Sullivan Cnty., No. 16 CIV. 3673 (JCM), 2018 WL

1582506, at *5, n.8 (S.D.N.Y. Mar. 27, 2018) (quoting Narvaez v. City of New York, No. 16 Civ. 1980 (GBD),

2017 WL 1535386, at *5 n.6 (S.D.N.Y. Apr. 17, 2017) (quoting Tavares v. New York City Health & Hosps.

Corp., No. 13-CV-3148 (PKC/MHD), 2015 WL 158863, at *3 (S.D.N.Y. Jan. 13, 2015))).

14

After filing his complaint, plaintiff requested the appointment of counsel, stating “|

will (sic) like to be appointed an (sic) free lawyer on all my cases. | wrote lawyers and

response (sic) was that they are deceased.” Dkt. No. 8.

“It is well-settled that there is no right to appointment of counsel in civil matters.”

Anthony v. Rosenberg, No. 9:22-CV-378 (BKS/CFH), 2023 WL 11965132, at *1 (N.D.N.Y.

Sept. 28, 2023) (citing Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994)). “Title 28 of

United States Code Section 1915 specifically provides that a court may request an

attorney to represent any person ‘unable to afford counsel.” /d. (quoting 28 U.S.C. §

1915(e)(1)). “Appointment of counsel must be done carefully in order to preserve the

‘precious commodity’ of volunteer lawyers for those litigants who truly need a lawyer's

assistance.” /d. (quoting Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73 (2d Cir. 1989)).

“In Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994), the Second

Circuit reiterated the factors that a court must consider in ruling upon such a motion.”

Anthony, 2023 WL 11965132, at *2. “In deciding whether to appoint counsel, the court

should first determine whether the indigent’s position seems likely to be of substance.”

Id. “lf the claim meets this threshold requirement, the court should then consider a

number of other factors in making its determination.” /d. (citing Terminate Control Corp.,

28 F.3d at 1341 (citing Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)); Sawma

v. Perales, 895 F.2d 91, 95 (2d Cir. 1990). The factors to be considered include

[t]he indigent’s ability to investigate the crucial facts, whether conflicting

evidence implicating the need for cross-examination will be the major proof

presented to the fact finder, the indigent’s ability to present the case, the

complexity of the legal issues, and any special reason . .. why appointment

of counsel would be more likely to lead to a just determination

15

Id. (citing Hodge, 802 F.2d at 61). “None of these factors are controlling, however, and

each case should be decided on its own facts.” /d. (citing Hodge, 802 F.2d at 61).

As the undersigned recommends that the complaint be dismissed with prejudice

and without leave to amend, it is recommended that plaintiff's motion for appointment of

counsel be dismissed as moot. However, even if the undersigned had not recommended

“| this case to be dismissed without opportunity to amend, “the undersigned would still deny

the motion for appointment of counsel as plaintiff has failed to provide” any evidence or

allegation “of the attempts that he made to obtain counsel on his own from the public and

private sector. Further, he has fully failed to demonstrate that his claim is likely to be of

substance.” /ncorvati v. CIS Ombudsman, No. 1:21-CV-280 (MAD/CFH), 2021 WL

4066528, at *3 (N.D.N.Y. Sept. 7, 2021), report and recommendation adopted, No. 1:21-

CV-280 (MAD/CFH), 2022 WL 1447925 (N.D.N.Y. May 9, 2022) (citing Terminate Contro/

Corp., 28 F.3d at 1341).

IV. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. No. 5) is

GRANTED; and it is

tri RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be DISMISSED with

prejudice and without opportunity to amend for failure to state a claim; and it is further

RECOMMENDED, that, in the alternative, should the District Judge disagree with

the undersigned’s recommendation that this action should be dismissed with prejudice

and without leave to amend due to plaintiff's failure to demonstrate that defendants are

state actors, the matter be dismissed without opportunity to amend in this action but

16

without prejudice to proceeding on such claims in the future should plaintiff be able to

demonstrate favorable termination of his criminal conviction; and it is further

RECOMMENDED, that plaintiff's motion for appointment of counsel (Dkt. No. 9),

be DISMISSED as moot; and it is

ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order

“lon plaintiff in accordance with Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which

to file written objections to the foregoing report. Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)

DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,

_,| 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.

1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 6(a), 72.12

Dated: November 5, 2025

Albany, New York

fen

Paul J. Evangelista

U.S. Magistrate Judge

“Bannister v. Perilli, No. 1:24-CV-183 (ECC/PJE), 2025 WL 1266657, at *5 (N.D.N.Y. May 1, 2025), report

and recommendation adopted as modified sub nom. Bannister, v. Perilli, et al., No. 1:24-CV-183

(ECC/PJE), 2025 WL 2912660 (N.D.N.Y. Oct. 14, 2025) (recommending claims barred by Heck be

dismissed without prejudice but without leave to amend in that action because the plaintiff had not

demonstrated a favorable termination of his criminal conviction).

If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three

(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)

days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.

See FED.R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,

then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.

See id. § 6(a)(1)(c).

17