Winters

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________________________________

Ricky L. Winters

Plaintiff,

v. 3:25-CV-1408

(GTS/MJK)

N.Y.S. Police, et. al.,

Defendant.

_____________________________________________________________________

Ricky L. Winters, Plaintiff pro se

Mitchell J. Katz, U.S. Magistrate Judge

To the Honorable Glenn T. Suddaby, U.S. District Judge:

ORDER & REPORT- RECOMMENDATION

On September 11, 2025, Winters began this action by filing a

Complaint and moving for leave to proceed in forma pauperis (“IFP”) in

the Western District of New York. (Dkts. 1, 2). Nearly a month later,

that Court transferred this case to this district. (Dkt. 7). Winters again

moved for leave to proceed IFP. (Dkt. 10). The Clerk of this district then

sent Winters’s Complaint and IFP application to this Court for review.

(Dkts. 1, 10).

I. BACKGROUND

In the morning of June 19, 2025, Defendants J.L. Sedlacek and

Unknown Tioga County Sheriff’s Deputy arrived at Winters’s home in

response to a domestic dispute. (Complaint, Dkt. 1, at pg. 14).1 When

they arrived, Sedlacek and Unknown Deputy asked if they could talk to

Winters about threatening Pamela Wolcott. See (Id.). In response,

Winters told the deputies that he did not threaten Wolcott. (Id.). He

only announced his intentions to go see if the gate was unlocked, and if

it was, he was going to visit their dog. (Id.) After hearing this, Sedlacek

started getting upset. (Id.). Winters then asked the deputies if he was

under arrest and Sedlacek answered no. (Id.). With that, Winters asked

both deputies to leave. (Id.).

Shortly after being told to leave, Sedlacek lunged at Winters and

tried to remove him “from the threshold of [his] front door.” (Id.). But

they failed. (Id.). The deputies followed Winters into his home and

attempted to corral him. (Id.). Winters then said, “before someone gets

seriously hurt here, I am only saying this once, if I’m under arrest tell

me I’m under arrest.” (Id.) (cleaned up). Sedlacek responded you are

1 All citations refer to the CM/ECF pagination.

under arrest. (Id.). Immediately, Winters stopped all resistance. (Id.).

Winters then asked Sedlacek what charge he was being arrested for,

and Sedlacek answered “you’re not under arrest I am detaining you.”

(Id.) (cleaned up). An irate Winters responded, “the fuck you are, get

these hand cuffs off of me and get the fuck out of my house right now.”

(Id.). The deputies refused. (Id.). They then dragged Winters out of his

home and placed him in a Sheriff’s vehicle. (Id.). After this, Wolcott

gave Sedlacek a supporting deposition, the deputies transported

Winters to Owego Barracks, and then two officers charged Winters with

making a terroristic threat. (Id. at pg. 12).

Winters has been incarcerated for over 65 days. (Id. at pg. 11).

Winters now brings this 42 U.S.C. § 1983 lawsuit alleging that the

Defendants have violated the Due Process clause because they arrested

him without a warrant—and committed a host of state-law torts,

including malicious prosecution. (Id. at pgs. 3, 5). Winters requests the

District Court “immediately intervene and order [his] immediate

release, reinstating [his] liberty.” (Id. at pg. 5). Winters also requests

$10,000,000 in damages. (Id.).

II. IFP APPLICATION

Winters declares in his IFP applications that he is unable to pay

the filing fee. (Dkt. 2). And after reviewing his application, this Court

finds that Winters is financially eligible for IFP status.

III. STANDARD OF REVIEW

On their own, courts can dismiss a case—at any time—if they

determine that an 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 fact.

See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (cleaned up); 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).

Courts must show liberality toward pro se litigants and use

extreme caution when sua sponte dismissing pro se complaints. See

Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d

Cir. 2000). Still, courts have a responsibility to determine that a claim

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

IV. DISCUSSION

The District Court should dismiss Winters’s Complaint

because it lacks subject matter jurisdiction, and if it does

not, §1983 is the not the correct vehicle for Winters’s

allegations.

The Court recommends dismissing Winters’s case. First, the Court

examines whether the District Court has subject matter jurisdiction

over Winters’s Case. It does not. So the Court recommends the District

Court dismiss the Complaint. Second, the Court examines whether 42

U.S.C. §1983 is the correct vehicle for Winters’s Complaint. This Court

finds that it is not. As a result, this Court again recommends dismissing

Winters’s Complaint.

A. The District Court should abstain from hearing this

case.

The Court recommends the District Court dismiss Winters’s

Complaint without prejudice and without leave to amend. Generally,

Federal Courts must abstain from involving itself in a case where there

is an on-going-state-court prosecution. Here, the Court finds that there

is an on-going-state-court prosecution, the state has an interest in

effectuating that prosecution, and Winters has an opportunity to have a

state court adjudicate his due process claims. Thus, this Court

recommends abstaining from Winters’s case.

Federal courts are forbidden from enjoining ongoing state

proceedings. See Gristina v. Merchan, 131 F.4th 82, 86 (2d Cir. 2025)

(quoting Younger v. Harris, 401 U.S. 37, 43 (1971)). There are three

circumstances that trigger Younger abstention: (1) state criminal

prosecutions; (2) civil enforcement proceedings; and (3) civil proceedings

that implicate a state’s interest in enforcing the orders and judgments

of its courts. See Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72-3

(2013); see also Schorr v. DoPico, 686 F. App’x 34, 36 (2d Cir. 2017)

(summary order). “After applying the categorical Sprint approach,”

courts “consider three additional, non-dispositive factors to determine

whether abstention is appropriate.” Lowell v. Vermont Dep’t of Child. &

Fams., 835 F. App’x 637, 639 (2d Cir. 2020) (summary order). The three

additional factors are: whether “(1) there is a pending state proceeding,

(2) that implicates an important state interest, and (3) the state

proceeding affords the federal plaintiff an adequate opportunity for

judicial review of his or her federal constitutional claims.” Spargo, 351

F.3d a 75; see also Falco v. Justices of Matrimonial Parts of Supreme Ct.

of Suffolk Cnty., 805 F. 3d 425, 427 (2d Cir. 2015).

The District Court should abstain from involving itself in

Winters’s case. To start, Winters concedes that he was charged with a

crime. (Complaint, Dkt. 1, at pg. 5). This concession, combined with his

self-identification as a pre-trial detainee indicates that there is an on-

going-state-court prosecution. (Complaint, Dkt. 1, at pgs. 4, 5). So the

Court is in a circumstance that triggers Younger abstention. See Sprint

Commc’ns, Inc., 571 U.S. at 72-3.

That said, the Court looks at the three additional factions, which

counsels in favor of abstaining. Winters’s “criminal prosecution was

proceeding when he brought this action before the district court.”

Hansel v. Town Ct. for Town of Springfield, N.Y., 56 F.3d 391, 393 (2d

Cir. 1995) (abstaining under Younger). So the first factor is clearly met.

Turning to the second factor, “it is axiomatic that a state’s interest in

the administration of criminal justice within its borders is an important

one.” Id. So the second factor is also clearly met. Turning to the third

factor, Winters can “raise his constitutional claims before a legally

trained judge both prior to trial, and after conviction on direct appeal”

so “the final requirement for Younger abstention is met.” Id.

Because this case falls within the contours of Younger, the District

Court should dismiss Winters’s Complaint.

B. §1983 is the wrong vehicle for Winters’s Complaint.

Should the Court disagree with the above recommendation, this

Court recommends dismissing Winters’s Complaint without prejudice

and without leave to amend. An incarcerated individual cannot bring a

§1983 claim if the claim challenges the fact or duration of confinement.

Here, the Court finds that Winters’s Complaint challenges the fact of

his confinement. So the Court recommends that the District Court

dismiss the Complaint.

“A prisoner may generally sue under § 1983, unless [their] claim

falls into that statute’s implicit exception for actions that lie within the

core of habeas corpus.” Nance v. Ward, 597 U.S. 159, 160 (2022)

(cleaned up). In fact, “a state prisoner’s § 1983 action is barred . . . no

matter the relief sought” or “the target of the prisoner’s suit . . . if

success in that action would necessarily demonstrate the invalidity of

confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81–82

(2005) (cleaned up). “Such a challenge is just as close to the core of

habeas corpus as an attack on the prisoner’s conviction, for it goes

directly to the constitutionality of [their] physical confinement itself.”

Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (cleaned up). So

examining Preiser and its progeny, courts must ask whether the §1983

claim being brought goes to the core of habeas. See Nance, 597 U.S. at

160.

Winters’s claim goes to the core of habeas. Again, Winters

concedes that he was charged making a terroristic threat. (Complaint,

Dkt. 1, at pg. 12). This concession permits the Court to infer that

Winters is being held pre-trial (which he also acknowledges). (Id. at pg.

3). And pre-trial detention is permissible. See generally, Bell v. Wolfish,

441 U.S. 520, 535-41 (1979) (discussing the constitutionality of pre-trial

detention). While being detained pre-trial, Winters filed this lawsuit

and requested this Court “immediately intervene and order [his]

immediate release, reinstating [his] liberty.” (Complaint, Dkt. 1, at pg.

5). That request is a request to immediately release him from prison;

making the Complaint a challenge to the fact of his conviction. That

goes to the core of habeas. And because it does, Winters cannot bring

his claim under §1983. See, e.g., Bentely v. Thomas, No. 22-CV-8215,

2022 WL 14054223, at *2 (S.D.N.Y. Oct. 24, 2022) (rejecting a §1983

challenge to the fact or duration of the plaintiff’s confinement).

To sum up, the District Court should dismiss the case and instruct

Winters to file a habeas petition if it reaches this issue.

C. The District Court should not allow Winters to amend

his Complaint.

Generally, before courts dismiss a pro se complaint or any part of

the complaint on its own, they should afford the plaintiff the

opportunity to amend at least once; but 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 a 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 state-court process has

not finished. So any malicious prosecution claim Winters can bring is

not ripe. As to the alternative recommendation, Winters needs to bring

his due process claim as a habeas petition rather than a §1983

Complaint. So any amendment to the current Complaint would be

futile.

V. CONCLUSION

WHEREFORE, based on the findings above, it is

RECOMMENDED, that Winters Complaint should be

DISMISSED WITHOUT PREJUDICE and WITHOUT LEAVE TO

AMEND; and it is further

ORDERED, that Plaintiff's motion to proceed [FP (Dkt. 10) is

GRANTED; and it is further

ORDERED that the Clerk provide Plaintiff with copies of the

unpublished decisions cited herein in accordance with Lebron v.

Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).

In accordance with 28 U.S.C. § 686(b)(1) and Local Rule 72.1(c),

the parties have fourteen (14) days within which to file written

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

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT

WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE

REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 19938) (citing

Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28

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

Dated: November 19, 20285.

U.S. Magistrate Judge

11

2022 WL 14054223

Only the Westlaw citation is currently available.

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

Garfield D. BENTELY, also known as Garfield D. Bentley, Plaintiff,

v.

John THOMAS, Newburgh Police; David Hoovler, D.A. County

of Orange; Orange County Court: City of Newburgh, Defendants.

22-CV-8215 (LTS)

|

Signed October 24, 2022

Attorneys and Law Firms

Garfield D. Bentely, Elmira, NY, Pro Se.

ORDER OF DISMISSAL

LAURA TAYLOR SWAIN, Chief United States District Judge:

*1 Plaintiff, who is currently incarcerated at Elmira Correctional Facility, brings this pro se action under 42 U.S.C. § 1983. He

seeks to overturn his 2017 conviction from the County Court, Orange County, and requests damages for his allegedly wrongful

conviction. By order dated September 27, 2022, the Court granted Plaintiff's request to proceed in forma pauperis, that is,

without prepayment of fees.1

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against

a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss

a prisoner's in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the

court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

BACKGROUND

On October 5, 2017, a jury in the County Court, Orange County, convicted Garfield Butler of burglary in the second degree,

criminal contempt in the first degree (three counts), criminal contempt in the second degree (five counts), criminal obstruction of

breathing or blood circulation, falsely reporting an incident in the third degree, and stalking in the third degree. People v. Bentley,

127 N.Y.S.3d 779, 780 (2nd Dept. Feb. 28, 2020), leave denied, 36 N.Y.3d 969 (Dec. 20, 2020). He is currently challenging that

conviction in a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Bentley v. Superintendent, ECF 7:22-CV-3818, 25

(PMH) (S.D.N.Y.). In that action, the government has been directed to respond to his petition not later than October 31, 2022.2

911, claiming that Plaintiff had poured some substance on her. (ECF 2 at 5.) Police officers went to the victim's home, but

according to Plaintiff, they did not take items of the victim's clothing (a red dress, a bra, and a black sweater), which were later

used as evidence at his criminal trial. (Id. at 5.) Plaintiff contends that the victim “tampered with the evidence” and that “the

chain of custody was violated.” (Id.) On this basis, Plaintiff asks the Court to “set [him] FREE” and “dismiss the indictment,

Case #2016-629.” (Id.) He further contends that he has been “falsely imprisoned for a said crime that [he] didn't commit.” (Id.)

*2 Plaintiff brings this suit against the “Orange County Court,” District Attorney David Hoovler, the “City of Newburgh

Police,” and Detective John Thomas, of the “Newburgh Police Crime Scene.” Plaintiff seeks to overturn his conviction and

seeks $50 million in damages for his allegedly wrongful confinement. (Id. at 6.) He also seeks to prosecute criminal charges

against Detective Thomas, District Attorney Hoovler, and his defense counsel from the Legal Aid Society, “Ms. Hernon,” who

was not named as a defendant. (Id.)

DISCUSSION

A. Eleventh Amendment immunity

“[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment

immunity, or unless Congress has abrogated the states' Eleventh Amendment immunity ....” Id. at 366. “The immunity

recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that

are, effectively, arms of a state.” Id. Plaintiff names the County Court, Orange County, as a defendant in this action. The County

Court is part of the New York State Unified Court System, N.Y. Const. Art. VI, § 29(a),3 and as such, it “is unquestionably

an ‘arm of the State.’ ” Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009); Id. at 366-67 (“The County Court of the State

of New York is an integral part of the State's Unified Court System, see N.Y. Const. Art. VI, §§ 1 & 10–11, and as such is an

arm of the State of New York.”) (citation omitted).

New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states'

immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977).

Because the County Court, Orange County, is an arm of the State of New York, the Eleventh Amendment bars Plaintiff from

pursuing his Section 1983 claims against this defendant in federal court. Plaintiff's Section 1983 claims against the County

Court, Orange County, are therefore dismissed based on Eleventh Amendment immunity.

B. Challenge to conviction

Plaintiff may not challenge the validity of his conviction or obtain release from custody in a Section 1983 action. See Heck v.

Humphrey, 512 U.S. 477, 486 (1994) (“[C]ivil tort actions are not appropriate vehicles for challenging the validity of outstanding

criminal judgments.”). A prisoner must bring a habeas petition, rather than a Section 1983 action, when the prisoner challenges

“the fact or duration of his confinement” and seeks either “immediate release from prison,” or the “shortening” of his term of

confinement. Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (citing Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)); Nance v.

Ward, 142 S. Ct. 2214, 2221 (2022) (noting that the literal language of Section 1983 would allow it to be used to challenge

a conviction but that the Supreme Court has “insisted that [Section] 1983 contains an ‘implicit exception’ for actions that lie

‘within the core of habeas corpus.’ ”) (citation omitted).

*3 Plaintiff has a pending petition for a writ of habeas corpus under Section 2254, in which he is seeking to overturn the same

conviction. Bentley, ECF 7:22-CV-3818, 2 (PMH) (S.D.N.Y.). Because such relief is unavailable in a civil rights action, the

Court dismisses Plaintiff's Section 1983 claims seeking to overturn his conviction and release him from custody. These claims

are dismissed without prejudice to Plaintiff's raising them in his pending Section 2254 petition.

C. Damages for wrongful conviction

In addition to asking the Court to overturn his conviction, Plaintiff seeks damages for his allegedly unlawful imprisonment. A

prisoner cannot pursue a civil rights claim for damages that would necessarily be inconsistent with his conviction. Heck, 512

U.S. at 486-87. Thus, a plaintiff cannot seek relief for “the ‘injury’ of being convicted and imprisoned (until his conviction

has been overturned),” id. at 477, n. 7, because such a claim is necessarily inconsistent with his conviction. Plaintiff's 2017

conviction has not been overturned, and any claim for damages for the injury of being imprisoned pursuant to this conviction

would be necessarily inconsistent with his 2017 conviction and sentence. This Section 1983 claim is therefore dismissed under

the doctrine established in Heck.

D. Prosecuting criminal charges

Plaintiff cannot initiate the arrest and prosecution of an individual in this Court because “the decision to prosecute is solely within

the discretion of the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff direct prosecuting attorneys

to initiate a criminal proceeding. Prosecutors have discretion whether or to bring criminal actions, and they are “immune from

control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).

Accordingly, the Court dismisses, for failure to state a claim, Plaintiff's allegations seeking to prosecute criminal charges against

his defense counsel, the district attorney, and a police detective who gathered evidence for the criminal charges against Plaintiff.

28 U.S.C § 1915(e)(2)(B)(ii).

E. Leave to Amend

District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is

not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d

40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint described above cannot be cured by amending his complaint

to include additional allegations, the Court declines to grant Plaintiff leave to amend his complaint.

CONCLUSION

Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed because (1) he cannot attack his

conviction in a civil rights action under 42 U.S.C. § 1983; (2) the Heck doctrine bars his claims for damages for wrongful

imprisonment; (3) the Orange County Court enjoys Eleventh Amendment immunity from suit; and (4) Plaintiff cannot prosecute

criminal charges against defendants.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore

in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to enter judgment in this matter.

SO ORDERED.

All Citations

Not Reported in Fed. Supp., 2022 WL 14054223

Footnotes

1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in

forma pauperis. See 28 U.S.C. § 1915(b)(1).

2 By letter dated September 15, 2022, Bentley indicated in his pending Section 2254 proceeding, Bentley, 7:22-CV-3818,

26, that he was filing, or had filed, a motion under N.Y. CPL 440.10 in state court.

3 N.Y. Const. Art. VI, § 29(a) (“The legislature shall provide for the allocation of the cost of operating and maintaining

the court of appeals, the appellate division of the supreme court in each judicial department, the supreme court, the

court of claims, the county court, the surrogate's court, the family court, the courts for the city of New York established

pursuant to section fifteen of this article and the district court, among the state, the counties, the city of New York and

other political subdivisions.”).

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

Fa KeyCite Yellow Flag

Distinguished by Civil Rights Corps v. Pestana, S.D.N.Y., May 5, 2022

686 Fed.Appx. 34

This case was not selected for publication in West's Federal Reporter.

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX

OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

United States Court of Appeals, Second Circuit.

David Evan SCHORR, Plaintiff-Appellant,

v.

Jorge DOPICO, in his official capacity as Chief Counsel of the First Judicial Department Disciplinary

Committee in New York State, Ernest J. Collazo, in his official capacity as Chairman of the

First Judicial Department Disciplinary Committee in New York State, Defendants-Appellees,

A. Gail Prudenti, in her official capacity as Chief Administrative Judge of the Courts of New

York State, First Judicial Department Disciplinary Committee in New York State, Defendants. °

16-33 15-cv

April 06, 2017

Synopsis

Background: Attorney brought § 1983 action against officials of state attorney disciplinary committee alleging retaliation under

First and Fifth Amendments. The United States District Court for the Southern District of New York, Sweet, J., 205 F.Supp.3d

359, dismissed complaint. Attorney appealed.

Holdings: The Court of Appeals held that:

[1] district court properly abstained from hearing his case under Younger abstention doctrine, and

[2] attorney's allegations were insufficient to show subjective bad faith on part of disciplinary committee, as required for bad

faith exception to Younger abstention doctrine to apply.

Affirmed.

Procedural Posture(s): On Appeal; Motion to Dismiss.

[1] Federal Courts @ Professional or other services; malpractice

district court properly abstained from hearing his case under Younger abstention doctrine, even though disciplinary

committee had not yet brought charges against attorney in a formal hearing, where the disciplinary proceedings were

pending at the time attorney filed his § 1983 complaint and continued during federal court proceedings. 42 U.S.C.A.

§ 1983.

11 Cases that cite this headnote

More cases on this issue

[2] Federal Courts Professional or other services;  malpractice

Attorney's allegation that state attorney disciplinary committee re-opened its investigation into his alleged misconduct,

in violation of its own rules, in order to retaliate against attorney for requesting a formal disciplinary hearing was

insufficient to show subjective bad faith on the part of disciplinary committee, as required for bad faith exception

to Younger abstention doctrine to apply to preclude federal court's abstention from hearing attorney's § 1983 action

against disciplinary committee, absent allegation that reopening was aimed at harassing attorney. 42 U.S.C.A. § 1983.

7 Cases that cite this headnote

More cases on this issue

Appeal from a judgment of the United States District Court for the Southern District of New York (Sweet, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the

district court is AFFIRMED and Appellant's motion to supplement the record is DENIED.

Attorneys and Law Firms

FOR PLAINTIFF-APPELLANT: David Schorr, Esq., pro se, New York, NY.

FOR DEFENDANTS-APPELLEES: Mark H. Shawhan, Assistant Solicitor General, New York State Office of the Attorney

General, New York, NY.

PRESENT: PETER W. HALL, GERARD E. LYNCH, CHRISTOPHER F. DRONEY, Circuit Judges.

*36 SUMMARY ORDER

Appellant David Schorr, an attorney proceeding pro se, sued two officials of the New York State Appellate Division, First

Judicial Department Attorney Disciplinary Committee (“committee”) under 42 U.S.C. § 1983, alleging retaliation under the

First and Fifth Amendments. Schorr alleged that the committee unlawfully re-opened its investigation of Schorr's misconduct

after he exercised his right to reject a private admonition and request a formal hearing. The district court dismissed the complaint

under the Younger abstention doctrine and for failure to state a claim. Schorr appeals the judgment of the district court and

moves to supplement the record on appeal with an email from opposing trial counsel explaining the circumstances of the district

court's denial of Schorr's motion for a preliminary injunction based on Schorr's default. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo dismissals based on Younger abstention. Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 197 (2d

Cir. 2002). “In Younger v. Harris, the Supreme Court held that a federal court, except in cases where an injunction is necessary

to prevent immediate and irreparable injury, should not enjoin a criminal proceeding in a state court.” Liberty Mut. Ins. Co. v.

when “1) there is an ongoing state proceeding; 2) an important state interest is implicated; and 3) the plaintiff has an avenue open

for review of constitutional claims in the state court.” Id. at 647 (internal quotation marks omitted). In Sprint Communications,

Inc. v. Jacobs, however, the Supreme Court cautioned that those three conditions “were not dispositive” because relying on them

alone “would extend Younger to virtually all parallel state and federal proceedings ... where a party could identify a plausibly

important state interest.” Sprint, ––– U.S. ––––, 134 S.Ct. 584, 593, 187 L.Ed.2d 505 (2013). Accordingly, the Supreme Court

clarified that courts should abstain under Younger only in three “exceptional circumstances” that “define Younger’s scope”: (1)

pending state criminal proceedings; (2) civil enforcement proceedings that are “akin to criminal prosecutions”; and (3) civil

proceedings that “implicate a State's interest in enforcing the orders and judgments of its courts.” See id. at 588, 591. The Court

specifically enumerated state-initiated attorney disciplinary proceedings for violations of state ethics rules as an example of

civil enforcement proceedings. See id. at 592 (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,

433–34, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). While “it remains unclear how much weight” we should afford our previous

three-part test after Sprint, district courts should not rely entirely on the older test. See Falco v. Justices of the Matrimonial

Parts of Supreme Court of Suffolk Cty., 805 F.3d 425, 427 (2d Cir. 2015).

[1] Although the district court erred when it relied only on the older three-part test for Younger abstention, it nonetheless

properly dismissed Schorr's claims under the doctrine. The focus of Schorr's claims is an ongoing state attorney disciplinary

proceeding, which falls squarely within Younger abstention. See id. (“On de novo review, however, we independently conclude

that [the] case presents circumstances that qualify as ‘exceptional’ under Sprint and that Younger abstention was therefore

warranted.”); see also Sprint, 134 S.Ct. at 592. Schorr's argument that the proceeding is not ongoing because the committee has

not yet brought charges in *37 a formal hearing is without merit. The disciplinary proceedings were pending at the time that

Schorr filed the complaint in this action and they have continued since, including the initial scheduling of Schorr's deposition.

[2] The district court also correctly determined that the bad faith exception to the Younger doctrine does not apply here. A

court may refuse to abstain when “a prosecution or proceeding has been brought to retaliate for or to deter constitutionally

protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass.” Cullen

v. Fliegner, 18 F.3d 96, 103–04 (2d Cir. 1994). But “[a] state proceeding that is legitimate in its purposes, but unconstitutional

in its execution—even when the violations of constitutional rights are egregious—will not warrant the application of the bad

faith exception.” Diamond “D”, 282 F.3d at 199. The plaintiff must therefore show subjective bad faith on the part of the

defendants. Id. at 199–200. The plaintiff must demonstrate that the party bringing the state action has “no reasonable expectation

of obtaining a favorable outcome.” Id. at 199 (quoting Cullen, 18 F.3d at 103).

Schorr argues that he adequately pleaded bad faith by alleging that the committee re-opened its investigation, in violation of its

own rules, in order to retaliate against him for requesting a formal hearing. Yet, this is not sufficient to show subjective bad faith

on the part of the defendants. While Schorr is correct that the next steps after his request for a hearing were to present formal

charges in front of a referee, see N.Y. Comp. Codes R. & Regs. tit. 22, §§ 605.6(e), 605.8 (2013), nothing in the regulations

specifically prohibits the re-opening of an investigation. Even assuming that the committee's actions were improper, Schorr still

failed plausibly to allege any facts showing bad faith. He asserted only that the re-opening of the investigation was unlawful

and done in response to his request for a hearing. Even assuming arguendo that the re-opening was improper, the complaint

does not sufficiently allege bad faith because it does not plausibly plead that the reopening was aimed at harassing Schorr.

See Diamond “D”, 282 F.3d at 199–200. Nor is it a sign of bad faith that a staff attorney notified Schorr to comply with a

subpoena compelling him to appear for an examination under oath or face suspension. Failure to comply with a committee

subpoena warrants suspension. Matter of Horowitz, 14 A.D.3d 191, 193, 789 N.Y.S.2d 108 (1st Dep't 2005). Accordingly, the

staff attorney's matter-of-fact statement concerning the repercussions of failing to comply with the committee's subpoena did

not rise to the level of animus required to show bad faith.

In any event, Schorr cannot show that the committee would be unlikely to succeed in proving its charges. The committee found

that Schorr violated N.Y. Comp. Codes R. & Regs. tit. 22, § 29.1, which prohibits the unauthorized audio recording of court

proceedings, and thereby violated Rules of Professional Conduct 3.3(f)(3) and 8.4(d), which prohibit violations of tribunal

recording of a court proceeding with his cell phone.

Finally, Schorr's argument that he was permitted to carry his phone in the courthouse misconstrues the meaning of the

committee's admonition. It was not Schorr's possession of a cell phone that violated Rule 8.4(d), but his use of the *38 device

to record a hearing surreptitiously. Despite Schorr's arguments to the contrary, the committee considered the circumstances

surrounding the recording and mitigated his punishment to a private admonition. Since the committee already considered

mitigating circumstances and imposed discipline, it would likely still impose discipline after a full hearing. The district court

properly determined, therefore, that the bad faith exception did not apply.

Schorr also moves to supplement the record on appeal with an email explaining the circumstances of the district court's denial

of his motion for a preliminary injunction to enjoin a deposition. Schorr, however, does not challenge on appeal the district

court's order denying the preliminary injunction, and he has thus abandoned the issue. See LoSacco v. City of Middletown, 71

F.3d 88, 92–93 (2d Cir. 1995). Accordingly, his motion to supplement the record with regard to the denial of his request for a

preliminary injunction is denied as moot: the issue is not before us on appeal.

We have considered all of Schorr's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the

judgment of the district court and DENY Schorr's motion to supplement the record.

All Citations

686 Fed.Appx. 34

Footnotes

* The Clerk of the Court is respectfully directed to amend the caption as set forth above.

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

835 Fed.Appx. 637

This case was not selected for publication in West's Federal Reporter.

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX

OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

United States Court of Appeals, Second Circuit.

Miriam LOWELL, Seth Healey, Plaintiffs-Appellants,

v.

VERMONT DEPARTMENT OF CHILDREN AND FAMILIES, “DCF,” Kenneth Schatz, Commissioner,

DCF, Karen Shea, Deputy Commissioner for the Family Services Division (“FSD”), DCF, Christine Johnson,

Deputy Commissioner for FDS, DCF, Emily Carrier, District Director, DCF, Catherine Clark, Director,

Commissioner's Registry Review Unit, DCF, Kathleen Smith, Family Services Supervisor, Christine Gadwah,

Family Services Worker, DCF, Kathleen Greenmun, Substantiation Hearing Officer, DCF, Defendants-Appellees,

John and Jane Does 1-10, Defendants.

19-3987-cv

|

December 01, 2020

|

Amended December 15, 2020

Synopsis

Background: Parents brought action in federal court seeking declaratory and injunctive relief, and damages against the Vermont

Department of Children and Families (DCF) and certain DCF officials, arising from DCF's investigation of purportedly false

allegations of abuse. The United States District Court for the District of Vermont, Geoffrey W. Crawford, Chief Judge, denied

parents motion for a temporary restraining order and preliminary injunction, but denied defendants' motion to dismiss. Plaintiffs

appealed.

[Holding:] The Court of Appeals held that Younger abstention was warranted.

Affirmed.

Procedural Posture(s): Motion for Preliminary Injunction; Motion for Temporary Restraining Order (TRO).

West Headnotes (1)

[1] Federal Courts Families and children

Younger abstention was warranted in parents' action against the Vermont Department for Children and Families

(DCF) and certain DCF officials seeking declaratory and injunctive relief, arising from a DCF investigation into

purportedly false allegations of child abuse; Vermont's substantiation process for abuse allegations was akin to a

provided a sufficient forum for review of federal constitutional claims, and the actions alleged in the complaint were

not sufficient to sustain a finding of bad faith. 33 Vt. Stat. Ann. §§ 4915, 4915a, 4915b.

24 Cases that cite this headnote

More cases on this issue

*638 Appeal from the United States District Court for the District of Vermont (Crawford, Ch. J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the

district court is AFFIRMED.

Attorneys and Law Firms

FOR PLAINTIFFS-APPELLANTS: COLIN R. HAGAN, Shlansky Law Group, LLP, Chelsea, Massachusetts.

FOR DEFENDANTS-APPELLEES: BENJAMIN D. BATTLES, Solicitor General, for Thomas J. Donovan, Jr., Attorney

General, Montpelier, Vermont.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges, JANE A. RESTANI, Judge.*

AMENDED SUMMARY ORDER

Plaintiffs-appellants Miriam Lowell and Seth Healey (“plaintiffs”) appeal the decision of the district court issued November

18, 2019, denying their motion for a temporary restraining order and preliminary injunction. Plaintiffs brought the action

below seeking declaratory and injunctive relief, and damages against defendant-appellant Vermont Department for Children

and Families (“DCF”) and certain DCF officials. DCF had brought a proceeding against plaintiffs seeking to investigate and

determine whether to substantiate a report of child abuse or neglect based on purportedly false allegations. Plaintiffs sought

injunctive relief to stop DCF from conducting an administrative hearing and listing their names on Vermont's child protection

registry. In its ruling, the district court concluded that the Younger abstention doctrine barred plaintiffs' claims for injunctive

relief. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The court also denied defendants' motion to

dismiss the action, noting that Younger abstention did not apply to plaintiffs' claims for damages. This appeal followed. We

assume the parties' familiarity with the underlying facts, procedural history of the case, and the issues on appeal.

We review de novo whether the requirements for abstention have been met. See Disability Rights New York v. New York, 916

F.3d 129, 133 (2d Cir. 2019); *639 Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 197-98 (2d Cir. 2002). Although

the findings of facts are reviewed for clear error, whether those facts support a finding that the case meets an exception to the

Younger abstention doctrine is a mixed question of law and fact that is reviewed de novo. See id. at 198.

As a general matter, Younger abstention requires federal courts to abstain from exercising jurisdiction over state-level

proceedings. Three types of proceedings trigger Younger abstention: 1) “ongoing state criminal prosecutions,” 2) state “civil

enforcement proceedings,” and 3) proceedings involving state courts “perform[ing] their judicial functions.” Sprint Commc'ns,

Inc. v. Jacobs, 571 U.S. U.S. 69, 70, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013). Moreover, after applying the categorical Sprint

approach, this court will consider three additional, non-dispositive factors to determine whether abstention is appropriate: 1)

whether there is a “pending state proceeding,” 2) whether that proceeding “implicates an important state interest,” and 3) whether

“the state proceeding affords an adequate opportunity for judicial review of ... federal constitutional claims.” Falco v. Justices

of Matrimonial Parts of Supreme Ct. of Suffolk Cnty., 805 F. 3d 425, 427 (2d Cir. 2015) (citing Middlesex Cnty. Ethics Comm.

unusual circumstance that would call for equitable relief.” Id. (quoting Younger, 401 U.S. at 54, 91 S.Ct. 746).

The district court correctly concluded that Vermont's substantiation process is akin to a criminal prosecution, falling within

Younger's second category. In determining whether a civil enforcement action is akin to a criminal proceeding, we consider

whether the action involved a state sanctioning a party “for some wrongful act,” was “initiated [by the State] to sanction the

federal plaintiff,” and involved “[i]nvestigations [that] culminat[e] in the filing of a formal complaint or charges.” Sprint, 571

U.S. at 79-80, 134 S.Ct. 584. The substantiation process at issue here possessed these features. Therefore, DCF's proceeding

constituted an ongoing state proceeding akin to a criminal prosecution.

The substantiation proceedings also satisfy the additional Middlesex factors. Vermont has a vital interest in protecting the well-

being of its children. See Moore, 442 U.S. at 435, 99 S.Ct. 2371 (“Family relations are a traditional area of state concern.”).

Moreover, the state proceedings provide a sufficient forum for review of federal constitutional claims. After an accusation of

wrongdoing, DCF can initiate an investigation. Vt. Stat. Ann. Tit. 33 § 4915, 4915a, 4915b. If DCF finds that the claims are

substantiated, it provides notice of that fact to the accused. It also informs the accused that DCF can place the individual on the

child protection registry. Vt. Stat. Ann. tit. 33 § 4916a(a). The accused is notified of the right to request administrative review

of the decision, id., which is conducted by a neutral arbiter who is not an employee of DCF, id. § 4916a(f). The burden of

proof rests on DCF and the accused has the right to present documentary evidence and other evidence. Id. §§ 4916a(d), a(e). A

person's name is not placed on the registry until after the accused is granted an administrative review, and the substantiation is

upheld. Id. § 4916a(h). The accused can appeal that decision to the Human Services Board. Id. §§ 4916a(i), b. That decision,

in turn may be appealed to the Vermont Supreme Court. Id. tit. 3 § 3091(f). Accordingly, plaintiffs have an opportunity to raise

their constitutional claims at the hearing before *640 the Human Services Board and before the Vermont Supreme Court.

Plaintiffs argue that this review of their constitutional claims arrives too late, beyond the point that their names are listed on the

child protection registry, potentially affecting their employment in an irreparable way. Plaintiffs' names, however, have not been

placed on the child-protection registry, as the state has not held the administrative review not entirely made clear by the record.

Moreover, in Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 79 (2d Cir. 2003), this Court held that the

“ability to raise constitutional claims in subsequent 'state-court judicial review of [an underlying] administrative proceeding' is

sufficient to provide plaintiffs with a meaningful opportunity to seek effective relief through state proceedings and bar federal

courts from taking jurisdiction over the same claims while the state proceeding is pending” (emphasis added). Thus, the state

process provides sufficient opportunity to raise constitutional claims.

Plaintiffs also argue that the district court should have applied the “bad faith” exception to Younger, and exercised jurisdiction

because they have shown “bad faith” and “harassment” by defendants. Diamond “D,” 282 F.3d at 198 (quoting Younger, 401

U.S. at 54). The district court correctly held that the actions alleged in the complaint are not sufficient to sustain a finding of

bad faith. To show bad faith, a plaintiff must show that “the state proceeding was initiated with and is animated by a retaliatory,

harassing, or other illegitimate motive” and “ha[s] no reasonable expectation of obtaining a favorable outcome.” Diamond “D,”

282 F.3d at 199. A state proceeding that “is legitimate in its purposes, but unconstitutional in its execution -- even when the

violations of constitutional rights are egregious -- will not warrant the application of the bad faith exception.” Id. (internal

citation omitted). Here, the case was initially brought to the attention of a mental health counselor by the accusations of Lowell's

daughter, not by the reporting of a DCF employee. Hence, the suggestion that the state proceeding was therefore initiated with

a harassing or retaliatory motive, or that the state had no reasonable expectation of a favorable outcome, is not plausible, and

plaintiffs have not met their burden of showing that the bad faith exception should apply.

We have reviewed plaintiffs' remaining arguments on appeal and conclude they are without merit. Accordingly, we AFFIRM

the order of the district court denying plaintiffs' claims for a temporary restraining order and preliminary injunctive relief.

All Citations

835 Fed.Appx. 637

Footnotes

* Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation.

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