Walker

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

TAUHEEDAH WALKER,

Plaintiff,

V.

No. 1:24-CV-1171

BETTY A. ROSA, (AJB/PJE)

Defendant.

APPEARANCES:

Tauheedah Walker

418 E. 137th Street, Apt. 1D

Bronx, New York 10454

Plaintiff pro se

PAUL J. EVANGELISTA

U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION & ORDER

|. Background

Plaintiff commenced this action on September 25, 2024, by filing a complaint and

an application for leave to proceed in forma pauperis (“IFP”). See Dkt. Nos. 1-2. On Ma

2025, the undersigned granted plaintiff's IFP application. See Dkt. No. 6. On review o

the original complaint, the undersigned interpreted it as seeking to allege violations o

plaintiff's (1) Fourteenth Amendment Due Process rights, and (2) Fourteenth Amendment

Equal Protection rights. See id. The undersigned recommended that (1) plaintiff's claims

against Betty A. Rosa (“Rosa”), Commissioner of the New York State Education

Department (“NYSED”), for monetary damages in her official capacity be dismissed

without prejudice and without leave to amend; (2) plaintiff's claims against Rosa in he

individual capacity be dismissed without prejudice with leave to amend; and (3) the

remainder of plaintiff's complaint be dismissed its entirety without prejudice and with leave

to amend for failure to satisfy the pleading requirements of Rule 8 of the Federal Rules o

Civil Procedure.' See id. In recommending dismissal of plaintiff's claim against Rosa in

her official capacity for monetary damages, the undersigned explained that this claim was

barred by the doctrine of sovereign immunity and could not be cured by a better pleading.

See Dkt. No. 6 at 9-11, 27-28. The undersigned also explained that plaintiff failed to

demonstrate that Rosa was personally involved in withholding her nurse practitione

license, that she was targeted because of membership in a protected class, or that she

“pursued any available administrative remedy at the agency level or initiated an Article 78

_,| proceeding” to compel the New York State Office of the Professions (“NYS OOP”) to issue

a decision. /d. at 21; see id. at 14-16, 26. The undersigned further recommended that i

plaintiff were permitted to file an amended complaint, any amended pleading “cannot

incorporate a prior pleading by reference,” “supersedes and replaces a prior pleading in

its entirety,” “may only proceed against those defendants and claims dismissed by this

Court without prejudice and with leave to amend,” and must fully comply with Rules 8(a)

m| and 10(b) of the Federal Rules of Civil Procedure. /d. at 28.

On May 29, 2025, the Court adopted the Report-Recommendation & Order in its

entirety. See Dkt. No. 8. On June 3, 2025, plaintiff filed an amended complaint. See DKt.

’ Hereinafter, “Fed. R. Civ. P.”

No. 9-1. Presently before the undersigned is review of plaintiff's amended complaint

pursuant to 42 U.S.C. § 1915.2

ll. Review of Amended Complaint

A. Amended Complaint

Plaintiff's amended complaint is very similar to the original complaint.* See Dkt.

. wo

Nos. 1, 9-1. In the amended complaint, plaintiff repeats her Fourteenth Amendment Due

Process and Equal Protection allegations against Rosa in both her official and individual

capacities, specifying that on February 23, 2022, she filed a nurse practitioner license

application with the NYSED, and on June 8, 2023, she was offered a position as a nurse

practitioner with the Essen Medical Group that she was unable to accept because the

NYSED had not issued her nurse practitioner license. See Dkt. No. 9-1 at 2. Plaintiff also

adds as a defendant David Hamilton, Assistant Commissioner of the Office of Professions

(“Hamilton”), in both his official and individual capacities, and raises against him the same

allegations she made against Rosa. See id. at 1-2.

Plaintiff adds a new claim against Rosa, Hamilton, New York City Health and

Hospitals, Correctional Health Services (“CHS”), and the NYSED? alleging that she was

ti] Section 1915(e) directs that when a plaintiff is allowed to proceed in forma pauperis, “the court shall

dismiss the case at any time if the court determines that... the action . . . (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)(i)-(ili). Thus, it is a court’s responsibility to

determine that a plaintiff may properly maintain his or her complaint before permitting him or her to

proceed with his or her action.

3 As the amended complaint repeats the same facts as the original, the undersigned will not repeat them

here except where necessary to review the merits of the claims set forth in the amended complaint.

Familiarity with the original complaint; the May 6, 2025, Report-Recommendation & Order; and the May 29,

2025, Order on Report & Recommendation is presumed. See Dkt. Nos. 1, 6, 8. For further details regarding

the facts and claims underlying this action, reference is made to the original complaint; the May 6, 2025,

Report-Recommendation & Order; and the May 29, 2025, Order on Report & Recommendation. See /d.

4 Plaintiff does not list the NYSED or CHS in the caption or “parties” section of the Amended Complaint but

does allege facts relating to the NYSED’s and CHS’ alleged involvement. See Dkt. No. 9-1 at 2, (7/8, 10,

16.

retaliated against for filing this lawsuit. See Dkt. No. 9-1 at 2-3. Plaintiff asserts that on

May 20, 2025, she received a written job offer from CHS for a staff nurse position. See id.

at 2. “The offer included a start date, pay details, and onboarding instructions.” /d. Plainti

states that she accepted the offer, but on May 28, 2025, “after learning about [her] litigation

against NYSED, [CHS] rescinded the job offer without providing any reason other than

‘disqualification during the pre-employment process.” /d. Plaintiff states the “[s]taff [nurse

role required only a valid [registered nurse] license,” which she “possess[ed] without

restriction.” /d. Plaintiff further asserts that Rosa, Hamilton, and the NYSED “orchestrated”

or “coordinat[ed]’ with CHS to have this job offer rescinded in retaliation for he

commencing this lawsuit and refusing to dismiss her claims. /d. Based on the foregoing,

it appears that plaintiff seeks to add the NYSED and CHS as defendants in this matter.®

_,| See id. at 1-3.

B. Fed. R. Civ. P. 8

As with plaintiff's original complaint, plaintiff's amended complaint fails to satisfy the

pleading requirements of Rule 8. See FED. R. Civ. P. 8(a). The May 6, 2025, Report-

Recommendation & Order noted that plaintiff's original complaint “fail[ed] to provide an

details or information explaining . . . (2) the efforts they made, if any, to inquire about the

Status of their license application or attempt to obtain a decision or other remedy from the

New York State Education Department; (3) any Article 78 proceeding they may have

commenced ....” Dkt. No. 6 at 7. Plaintiff's amended complaint also fails to include this

information. See generally Dkt No. 9-1. Further, plaintiff fails to explain how Rosa,

Hamilton, and the NYSED “orchestrated” or “coordinat[ed]’ with CHS to have her job offe

5 Plaintiff attaches to her amended complaint copies of the May 20, 2025, offer letter from CHS; the

onboarding schedule; and the May 28, 2025, recission letter. See Dkt. No. 9-1 at 5-6, 8.

rescinded or any factual support for a claim that Rosa and Hamilton were personally|

involved in any alleged retaliation. /d. at 2. This additional information is necessary to

provide “fair notice of the claim[s] being asserted” and afford defendants a fair opportunity|

to file an answer and “prepare an adequate defense.” Flores v. Graphtex, 189 F.R.D. 54,

55 (N.D.N.Y. 1999); Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (summary

order); FED. R. Civ. P. 8(a)(2). Therefore, the undersigned recommends that plaintiff's

complaint, except plaintiff's claims (1) against Rosa and Hamilton in their official capacities

for monetary damages, (2) for mandamus relief, (3) as against the NYSED and CHS, be

dismissed without prejudice and with leave to amend for failure to satisfy Rule 8’s pleading

requirements.© See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); Feb. R. Civ. P.

8(a)(2).

C. Nurse Practitioner License

1. Fourteenth Amendment Procedural Due Process

Plaintiff's amended complaint realleges that her Fourteenth Amendment procedural

due process rights were violated and continue to be violated because the NYSED has still

failed to issue a decision on her nurse practitioner license application. See Dkt. No. 9-1

at 1-3.

tri “Section 1983 ‘allows plaintiffs with federal or constitutional claims to sue in federal

court without first exhausting state judicial or administrative remedies.” Barzee v. Tyler,

No. 8:21-CV-902 (GTS/CFH), 2022 WL 1406606, at *8 (N.D.N.Y. May 3, 2022), report an

recommendation adopted, No. 8:21-CV-902 (GTS/CFH), 2022 WL 2079084 (N.D.N.Y.

June 9, 2022) (quoting Hellenic-American Neighborhood Action Committee v. City of Ne

The undersigned below addresses the reason for recommending dismissal of these other claims without

leave to amend.

York, 101 F.3d 877, 881 (2d Cir. 1996)).? However, “[w]hen § 1983 claims allege

procedural due process violations,’ the Court may nonetheless evaluate whether state

remedies exist ‘because that inquiry goes to whether a constitutional violation has

occurred at all.” /d. (quoting Chase Grp. All. LLC v. City of N.Y. Dept. of Fin., 620 F.3d

146, 153 (2d Cir. 2010) (quoting Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458,

468 n.12 (2d Cir. 2006))). “Said differently, ‘[w]hen there is an adequate state

postdeprivation procedure to remedy a random, arbitrary deprivation of property o

liberty[,]’ ‘there is no constitutional violation (and no available § 1983 action).” /d. (quoting

Hellenic, 101 F.3d at 882) (emphasis in original).

As discussed in the May 6, 2025, Report-Recommendation & Order, “[i]Jn New York

State, an Article 78 proceeding provides an avenue of post[-]deprivation redress that

.| satisfies due process requirements.” Dkt. No. 6 at 19 (quoting Nicholas v. Seggos, No.

8:23-CV-463 (GTS/CFH), 2023 WL 6121164, at *6 (N.D.N.Y. Sept. 19, 2023), report an

recommendation adopted, No. 8:23-CV-0463 (GTS/CFH), 2023 WL 7004103 (N.D.N.Y.

Oct. 24, 2023) (quoting Clark v. Dominique, 798 F. Supp. 2d 390, 401 (N.D.N.Y. 2011)))

(internal quotation marks omitted); Grune v. Hernandez, No. 1:22-CV-857 (MAD/TWD),

2024 WL 2818367, at *7 (N.D.N.Y. June 3, 2024), aff'd, No. 24-1803, 2025 WL 1416891

m| (2d Cir. May 16, 2025) (quoting Cieslinski v. Cassino, 78 F. Supp. 2d 234, 237 (S.D.N.Y.

1999) (citing Hellenic, 101 F.3d at 881))) (“It has long been the law in this Circuit that the

availability of Article 78 as post-deprivation remedy bars claims for violations of procedural

due process.”). “[T]he Second Circuit frequently affirms the dismissal of procedural due

7 The Court has provided plaintiff with copies of the unpublished decisions cited within this Report-

Recommendation & Order except for those the Court provided her along with the May 6, 2025, Report-

Recommendation & Order.

process claims brought by plaintiffs who had an Article 78 proceeding available to them.”

Grune, 2024 WL 2818367, at *7 (quoting Corsini v. City of New York, No. 20-CV-5459,

2023 WL 4420113, *8 (E.D.N.Y. July 10, 2023); see also Claudio v. Mattituck-Cutchogue

Union Free Sch. Dist., 955 F. Supp. 2d 118, 129 (E.D.N.Y. 2013) (dismissing a procedural

due process claim because the “plaintiff never brought an Article 78 proceeding in state

| court and did not set forth any basis for concluding that this available state remedy was

inadequate’).

“TArticle 78 is] an amalgam of the common law writs of certiorari to review,

mandamus, and prohibition, [and] provides both a hearing and a means of redress fo

petitioners.” Grune, 2024 WL 2818367, at *8 (quoting Barzee, 2022 WL 1406606, at *8

(quoting Hellenic, 101 F.3d at 881)). “‘Additionally, constitutional issues can be decided

Article 78 proceedings.” /d. "If a government official within New York State has failed to

act with regard to a litigant’s property or liberty interest, courts have held that the process

in which to compel that government official to take action is a state-court proceeding fo

mandamus relief under Article 78 of the New York Civil Practice Law and Rules.” Newman

v. de Blasio, No. 1:21-CV-6141 (LTS), 2021 WL 4254978, at *4 (S.D.N.Y. Sept. 17, 2021)

(citing Nenninger v. Vill. of Port Jefferson, 509 F. App’x 36, 39 n.2 (2d Cir. 2013) (summary

Order) (dismissing a procedural due process claim arising from the village’s failure to act

on the plaintiff's land-use application because the plaintiff “was free to bring an Article 78

mandamus proceeding in New York State court’)); New York State Nat'l Org. for Women

v. Pataki, 261 F.3d 156, 168 (2d Cir. 2001) (“Once the delay in the processing of any claim

of the members of subclasses A and B became unreasonable, each member could have

brought an Article 78 proceeding to mandamus [New York State] Division [of Human

Rights] officials to proceed expeditiously to resolve the discrimination claim.”).

As discussed in the May 6, 2025, Report-Recommendation & Order, plaintiff ma

potentially have a current or future property interest in a nurse practitioner license, and

she has a liberty interest in the right to choose her own occupation. See Dkt. No. 6 at 19,

Although the Court afforded plaintiff an opportunity to amend to provide additional

information in support of this claim, plaintiff's amended complaint fails to discuss whethe

she took any action to follow up with the NYSED after she submitted her nurse practitione

license application, pursued an administrative remedy with the NYSED, or filed an Article

78 proceeding to compel the NYSED to issue a decision. See generally Dkt. No. 9-1; □□□□

No. 6 at 21.

Accordingly, the undersigned concludes that New York State provides an adequate

post-deprivation remedy by way of filing an Article 78 proceeding in state court. See

Newman, 2021 WL 4254978, at *4; Grune, 2024 WL 2818367, at *8 (quoting Barzee, 2022

WL 1406606, at *8 (quoting Hellenic, 101 F.3d at 881)). However, as plaintiff has failed to

allege or argue that she filed Article 78 proceeding or that there existed anything

preventing her from doing so, despite the Court affording plaintiff an opportunity to amend

this issue, she cannot proceed on her procedural due process claims in this court.

Accordingly, the undersigned recommends that plaintiff's Fourteenth Amendment due

process claim be dismissed without prejudice and without leave to amend as there exists

an adequate post-deprivation remedy through the state. See Grune, 2024 WL 2818367,

at *7 (quoting Corsini, 2023 WL 4420113, *8).

2. Mandamus Relief

The undersigned also concludes that the Court lacks jurisdiction to grant the

mandamus relief plaintiff seeks: to order the “NYSED to process and release Plaintiff's

Nurse Practitioner license.” Dkt. No. 9-1 at 3. Although plaintiff does not define this

request for relief as seeking a writ of mandamus, “[c]ourts have construed requests to

compel a New York State agency to take particular action as requests for mandamus

“| relief.” Stevenson v. New York State Dep't of Corr. & Cmty. Supervision, No. 1:21-CV-355

(GWC), 2022 WL 179768, at *22 (W.D.N.Y. Jan. 20, 2022) (citing Nappi v. N.Y. State Office

of Mental Health, No. 20-CV-5863 (LLS), 2020 WL 7321398, at *2 (S.D.N.Y. Dec. 10,

2020)); Espindola v. United States Dep’t of Homeland Sec., No. 1:20-CV-1596 (MAD/DJS),

2021 WL 3569840, at *3 (N.D.N.Y. Aug. 12, 2021) (first citing Fangfang Xu v. Cissna, 434

F. Supp. 3d 43, 55 (S.D.N.Y. 2020), then citing L.M. v. Johnson, 150 F. Supp. 3d 202, 206

_,|(E.D.N.Y. 2015)) (“Because it seeks a writ of mandamus to compel an administrative

action, the Court interprets it as a request pursuant to the Mandamus Act.”).

“The Mandamus Act provides that ‘[t]he district courts shall have original jurisdiction

of any action in the nature of mandamus to compel an officer or employee of the United

States or any agency thereof to perform a duty owed to the plaintiff.” Espindola, 2021 WL

3569840, at *3 (quoting 28 U.S.C. § 1361). However, “[t]he federal courts have no general

Power to compel action by state officials.” Stevenson, 2022 WL 179768, at *22 (quoting

Strauss v. Ky. Bd. of Med. Licensure, No. 19-CV-6537L (DGL), 2020 WL 1493963, at *3

(W.D.N.Y. Mar. 26, 2020) (quoting Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988))). “B

its own terms, the Mandamus Act confers jurisdiction over only officers or employees o

the United States; it does not confer jurisdiction over state or local officials.” Marom v.

Town of Greenburgh, No. 20-CV-3486 (PMH), 2021 WL 797648, at *4 (S.D.N.Y. Mar. 2,

2021) (citing Davis, 851 F.2d at 74).

Plaintiff is seeking the Court to compel a state agency to perform a specific act.

Dkt. No. 6 at 8-13. Therefore, the Court lacks subject matter jurisdiction to grant

mandamus relief to compel the NYSED to “process and release” plaintiffs nurse

practitioner license. See Stevenson, 2022 WL 179768, at *22. Accordingly, the

undersigned recommends that plaintiff's request for mandamus relief — that this Court

compel the NYSED to issue her nurse practitioner license — be dismissed without prejudice

and without leave to amend for lack of subject matter jurisdiction. See 28 U.S.C. § 1361;

Marom, 2021 WL 797648, at *4; Gabris v. New York City Taxi & Limousine Comm'n, No.

05 CIV. 8083 (HB), 2005 WL 2560384, at *3 (S.D.N.Y. Oct. 12, 2005) (“Defendants in the

_jinstant action, however, are not alleged to be officers, employees, or agencies of the

United States. Therefore, this Court lacks the jurisdiction to compel any of defendants to

issue plaintiff a “Vehicles For-Hire License” by mandamus.”).

D. Claims against Rosa for Monetary Relief

1. Official Capacity

As the undersigned noted in the May 6, 2025, Report-Recommendation & Order,

m| the Eleventh Amendment bars all claims against government employees in their official

capacities for monetary damages. See Dkt. No. 6 at 9-10 (citing Gerken v. Gordon, No.

1:24-CV-435 (MAD/CFH), 2024 WL 4608307, at *6-7 (N.D.N.Y. Oct. 29, 2024), report an

recommendation adopted, No. 1:24-CV-435 (MAD/CFH), 2024 WL 5001402 (N.D.N.Y.

Dec. 6, 2024)). In the May 29, 2025, Order on Report & Recommendation, the Court

dismissed plaintiff's § 1983 claims and additional claims against Rosa in her official

10

capacity for monetary damages without leave to amend. See Dkt. No. 8 at 4. In the

amended complaint, plaintiff repeats her claims against Rosa in her official capacit

seeking monetary damages. See Dkt. No. 9-1 at 1, 3. Accordingly, it is recommended

that, insofar as plaintiff realleges a § 1983 claim against Rosa in her official capacity fo

monetary damages, such claim be dismissed without prejudice and without leave to

amend pursuant to the May 6, 2025, Report-Recommendation & Order, and the Court’s

May 29, 2025, Order on Report & Recommendation. See Dkt. Nos. 6, 8.

2. Individual Capacity

The Court adopted the undersigned’s recommendation to dismiss plaintiff's § 1983

claims against Rosa in her individual capacity for monetary damages with leave to amend

because plaintiff's Fourteenth Amendment due process and equal protection claims failed

_,| to satisfy Rule 8 and plaintiff failed to demonstrate Rosa’s personal involvement. See DKkt.

No. 6 at 13-16, 26; Dkt. No. 8 at 4. In affording an opportunity to amend, the Court

explained:

If plaintiff chooses to take advantage of this opportunity . . . plaintiff must

clearly describe the events that led to her claims, which should include

information about the dates, times, places, and the state actors involved,

along with an explanation of how each state actor committed each allegedly

wrongful act. In short, plaintiff should endeavor to submit an amended

complaint that contains a single, clear, chronologically ordered history of the

tri events that allegedly occurred and that describes, with some supporting

factual detail, how each named defendant was involved in the alleged

violation of her rights.

Dkt. No. 8 at 4.

Although plaintiff's amended complaint adds that she filed her nurse practitione

license application on February 23, 2022, and she specifies the name of the medical

practice that offered her a nurse practitioner position in June 2023, she fails to provide any|

11

other facts concerning (1) her nurse practitioner license application process, (2) Rosa’s

personal involvement in the NYSED not issuing a decision on her license application, and

(3) whether or how she was targeted based on her membership in a protected class o

identify any similarly-situated comparators. See generally Dkt. No. 9-1; Golston v.

Cortese, No. 1:21-CV-914 (GTS/CFH), 2022 WL 2657290, at *6, n.7 (N.D.N.Y. Apr. 1,

2022), report and recommendation adopted, No. 1:21-CV-914 (GTS/CFH), 2022 W

2071773 (N.D.N.Y. June 9, 2022) (quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d

Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009))) (“[T]here is no special rule

for supervisory liability. Instead, a plaintiff must plead and prove ‘that each Government-

official defendant, through the official’s own individual actions, has violated the

Constitution.”); Davis v. Cnty. of Nassau, 355 F. Supp. 2d 668, 677 (E.D.N.Y. 2005)

_,| (quoting Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996)) (stating that a “complaint must still

allege particular facts indicating that an individual defendant was personally involved in

the deprivation of the plaintiff's constitutional rights; mere ‘bald assertions and conclusions

of law’ do not suffice.”)); Barzee, 2022 WL 1406606, at *9 (quoting Hu v. City of N.Y., 927

F.3d 81, 92 (2d Cir. 2019) (quoting Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005),

overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008))); Nicholas,

mi| 2023 WL 6121164, at “6 (quoting Hamptons Hosp. & Med. Ctr., Inc., 417 N.E.2d 533, 537,

(N.Y. 1981) (citation omitted) and citing Hoffmann v. New York State Indep. Redistricting

Comm'n, 192 N.Y.S.3d 763, 768-69 (App. Div. 2023).

Because the undersigned recommends dismissing plaintiffs Fourteenth Amendment due process claim

due to the availability of an adequate post-deprivation remedy, the undersigned is limiting the remaining

analysis of plaintiffs Fourteenth Amendment claims against the individual defendants in their individual

capacity to the alleged violation of her equal protection rights.

12

However, the undersigned recommends that plaintiff's claims against Rosa in he

individual capacity for monetary damages be dismissed without prejudice and with leave

to amend because, as will be discussed below, plaintiff seeks to add Hamilton as a

defendant to this lawsuit, and plaintiff could potentially demonstrate Rosa’s personal

involvement by conspiring with Hamilton to retaliate against her in violation of he

constitutional rights. See Golston, 2022 WL 2657290, at *6, n.7; Davis, 355 F. Supp. 2d

at 677; FED. R. Civ. P. 8(a)(2).

E. Claims against Hamilton for Monetary Relief

1. Official Capacity

Hamilton is the NYSED Deputy Commissioner for the Office of Professions.

As discussed in the May 6, 2025, Report-Recommendation & Order and above regarding

_,| plaintiff's claims for monetary damages against Rosa in her official capacity, the Eleventh

Amendment bars suit against government officials in their official capacities for monetary

damages. See Gerken 2024 WL 4608307, at *6. Accordingly, it is recommended that

plaintiff's claims for monetary damages against Hamilton in his official capacity as Deputy|

Commissioner for the Office of Professions be dismissed without prejudice and without

leave to amend. See id.

tn 2. Individual Capacity

Plaintiff's claim against Hamilton in his individual capacity must also fail because

she does not establish his personal involvement in any constitutional violation. Plainti

names “David Hamilton . . . as Assistant Commissioner of the of the Office o

NEW YORK STATE EDUCATION DEPARTMENT, “Organizational Chart,”

https:/Awww.nysed.gov/about/orgchart/text-only (last visited on Oct. 28, 2025).

13

Professions” '® as a defendant; however, the amended complaint does not raise any claims

against Hamilton or include any facts about Hamilton’s personal involvement in an

alleged constitutional violation. See generally Dkt. No. 9-1. Hamilton is also not

referenced in any of the exhibits attached to plaintiff's amended complaint. See Dkt. No.

9-1 at 4-8. Plaintiff's amended complaint fails to demonstrate Hamilton’s personal

involvement in the alleged Fourteenth Amendment Equal Protection violation stemming

from the alleged failure to “timely process and release [plaintiff's nurse practitioner] license,

without notice or hearing.” /d. at 2; see also Davis, 355 F. Supp. 2d at 677. The amended

complaint also fails to establish that Hamilton was personally involved in conspiring o

retaliating against plaintiff for bringing this lawsuit."

Moreover, Hamilton’s role as Deputy Commissioner of the Office of Professions is

_,|insufficient to establish personal involvement. “[l]n order to recover damages in a civil

rights action, [the] plaintiff must allege a defendant's direct or personal involvement in the

alleged constitutional deprivations, and supervisory officials may not be held liable merel

because they held a position of authority.” Golston, 2022 WL 2657290, at *6, n.7 (quoting

Montes v. O'Shea, No. 1:21-CV-303 (DNH/ATB), 2021 WL 1759853, at *5 (N.D.N.Y. Apr.

6, 2021), report and recommendation adopted, No. 1:21-CV-303, 2021 WL 1758858

m| (N.D.N.Y. May 4, 2021) (first citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); then

citing Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996))); see supra at 11-12.

As with Rosa, Hamilton’s role as a “Deputy Commissioner of the Office o

Professions,” without more, is not enough to state a claim against him under § 1983 fo

Although plaintiff refers to Hamilton as “Assistant Commissioner,” his official title is “Deputy Commissioner”

of the Office of Professions. See Dkt. No. 9-1 at 1.

"Plaintiff's First Amendment retaliation and § 1983 conspiracy claims will be analyzed in further detail below.

14

violating her Fourteenth Amendment equal protection rights. See Tangreti, 983 F.3d at

618; Peck v. Cnty. of Onondaga, New York, No. 5:21-CV-651 (DNH), 2021 WL 3710546,

at *9 (N.D.N.Y. Aug. 20, 2021) (quoting Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (“

defendant in a § 1983 action may not be held liable for damages for constitutional

violations merely because he held a high position of authority.”)). However, because it is

possible that plaintiff may be able to amend to demonstrate Hamilton’s personal

involvement in the withholding of her nurse practitioner’s license, in light of special

solicitude, the undersigned recommends that plaintiff's claims against Hamilton in his

individual capacity for monetary damages arising out of his alleged (1) violations of he

Fourteenth Amendment equal protection rights; (2) retaliation in violation of the First

Amendment; and (3) participation in a § 1983 conspiracy to retaliate against her for

seeking legal redress, be dismissed without prejudice and with leave to amend.

Conversely, to the extent that plaintiff seeks to assert a Fourteenth Amendment procedural

due process claim against Hamilton, it is recommended that plaintiff's claim be dismissed

without prejudice and without leave to amend for the same reasons that the undersigned

recommended dismissing such claims against Rosa. See supra at 5-8; see Newman,

2021 WL 4254978, at *4; Grune, 2024 WL 2818367, at *8 (quoting Barzee, 2022 WL

m| 1406606, at *8 (quoting Hellenic, 101 F.3d at 881)).

F. Government Entities

Plaintiff appears to add a § 1983 conspiracy claim alleging that Rosa and Hamilton

“orchestrated” and “coordinat[ed]’ with the NYSED to have her job offer with the CHS

rescinded due to this “pending litigation and refusal to withdraw claims” and that the CHS’

recission constituted a retaliatory act in violation of the First Amendment. See Dkt. No. 9-

15

1 at 2. Although plaintiff does not explicitly state as such, based on her conspirac

allegation, liberally read and applying special solicitude, it appears that plaintiff seeks to

add the NYSED and CHS as defendants in this action.

1. New York State Education Department

As discussed in the May 6, 2025, Report-Recommendation & Order, the Eleventh

“| Amendment doctrine of sovereign immunity extends to “state governments and thei

agencies . . . unless they have waived their Eleventh Amendment immunity or there has

been a valid abrogation of that immunity by Congress.” Dkt. No. 6 at 9-10 (quoting Gerken,

2024 WL 4608307, at *6 (quoting Kisembo v. N.Y.S. Off. of Child. & Fam. Servs., 285 F.

Supp. 3d 509, 519 (N.D.N.Y. 2018))). The NYSED is a state agency.'* See Bleichert v.

New York State Educ. Dep't, Off. of Hum. Res., No. 1:18-CV-611 (GTS/CFH), 2019 WL

_,| 1060800, at *5 (N.D.N.Y. Mar. 6, 2019), aff'd sub nom. Bleichert v. New York State Educ.

Dep't, 793 F. App’x 32 (2d Cir. 2019) (summary order) (citing N.Y. Educ. Law § 101) (‘It is

well established that the New York State Education Department is an agency of the State

of New York, and thus an arm of the state for purposes of sovereign immunity.”); see a/so

Mamot v. Bd. of Regents, 367 F. App’x 191, 192-93 (summary order) (2d Cir. 2010) (same).

New York State has not “waived [its] Eleventh Amendment immunity” and “there has [not]

m| been a valid abrogation of that immunity by Congress.” Gerken, 2024 WL 4608307, at *6.

Therefore, plaintiff's claims against the NYSED are barred by the Eleventh Amendment.

See id. Accordingly, the undersigned recommends that all claims against the NYSED be

dismissed without prejudice and without leave to amend. See id. at 7.

2. New York City Health and Hospitals, Correctional Health Services

NEW YORK STATE EDUCATION DEPARTMENT, httos://www.nysed.gov/ (last visited on Oct. 28, 2025).

16

CHS is a division of New York City Health and Hospitals (“NYCHH”).'° As an

operating division of NYCHH, CHS is not a separate corporate entity, and, therefore, not

subject suit. See Toussaint v. Metro. Hosp., No. 22-CV-2689 (ALC), 2022 WL 1227740,

at “1 (S.D.N.Y. Apr. 26, 2022) (citing New York City Charter § 396 and Ochei v.

Coler/Goldwater Mem’ Hosp., 450 F. Supp. 2d 275, 287-88 (S.D.N.Y. 2006))

(“Metropolitan Hospital is an operating division of NYC Health + Hospitals, and is not a

separate corporate entity subject to suit under New York State Law and New York Cit

Charter.”); Syed v. NYCHHC Kings Cnty. Hosp., No. 24-CV-1624 (NRM/JRC), 2025 WL

895384, at *3 (E.D.N.Y. Mar. 24, 2025) (citing Toussaint, 2022 WL 1227740, at *1-2))

(“NYC Health + Hospitals / Kings County is not a separate corporate entity from H+H and

therefore is not subject to suit.”). Therefore, the undersigned concludes CHS is not subject

_,| to liability and is not a proper defendant in this action. See Syed 2025 WL 895384, at *3.

Nevertheless, out of special solicitude, the undersigned will interpret plaintiff's

amended complaint as seeking to add NYCHH as a defendant instead of CHS. See Dkt.

No. 9-1 at 2-3. NYCHH “is a public benefit corporation created by New York State law; it

has the capacity to sue and be sued.” Toussaint, 2022 WL 1227740, at *1 (citing N.Y.

Unconsol. Laws §§ 7382, 7385(a)). As a public benefit corporation, NYCHH “is a municipal

corporation the liability of which under Section 1983 ‘is governed by principles set forth in

Monell.” Boyd v. LaGuardia Airport, No. 21-CV-5000 (KAM)(LB), 2022 WL 4357466, at *3

(E.D.N.Y. Sept. 20, 2022) (quoting McTerrell v. N.Y.C. Health & Hosps. Corp., No. 19-CV-

4469 (PAE), 2019 WL 8989862, at *4 (S.D.N.Y. Nov, 26, 2019), R. & R. adopted, 2020 W

1503194 (Mar. 30, 2020); see also McGrath v. Nassau Health Care Corp., 217 F. Supp.

13 NEW YORK CITY HEALTH AND HOSPITALS, CORRECTIONAL HEALTH SERVICES,

https:/Avww.nychealthandhospitals.org/correctionalhealthservices/ (last visited on Oct. 28, 2025).

17

2d 319, 330 (E.D.N.Y. 2002) (“Public benefit corporations are governmental entities for §

1983’s purposes.”). “When a plaintiff sues a municipality . . . or other local government

entity, such as NYC Health + Hospitals, under Section 1983, it is not enough for the plainti

to allege that one of the municipality’s or other local government entity’s employees o

agents engaged in some wrongdoing.” E/ Dey v. Bd. of Correction, No. 1:22-CV-2600

(LTS), 2022 WL 2237471, at *6 (S.D.N.Y. June 22, 2022). “The plaintiff must show that

the municipality or other local government entity itself caused the violation of the plaintiff's

rights.” /d. (citing Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A municipality or other

local government may be liable under this section [1983] if the governmental body itsel

‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such

deprivation.”) (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658,

_,|692 (1978)). “[T]o state a claim under Section 1983 against a municipality or other local

government entity, the plaintiff must allege facts showing: (1) the existence of a municipal

or local government entity policy, custom, or practice; and (2) that the policy, custom, o

practice caused the violation of the plaintiff's constitutional rights.” /d. (citing Jones v. Town

of East Haven, 691 F.3d 72, 80 (2d Cir. 2012)); see also Monell, 436 U.S. at 694. “This

standard has been applied to claims under Section 1983 brought against NYC Health +

m| Hospitals.” /d. (citing Rookard v. Health & Hosp. Corp., 710 F.2d 41, 45 (2d Cir. 1983)).

Here, “[p]laintiff alleges no facts showing that a policy, custom, or practice of. . .

NYC Health + Hospitals has caused a violation of his federal constitutional rights.” E/ Dey,

2022 WL 2237471, at *6. Thus, plaintiff has plead no viable claim against NYCHH unde

§ 1983. However, as will be discussed below, because the undersigned is recommending

that plaintiff's underlying First Amendment retaliation and § 1983 conspiracy claims against

18

Rosa and Hamilton be dismissed without prejudice with leave to amend, the undersigned

also recommends that any First Amendment retaliation and § 1983 conspiracy claims

construed to have been raised against NYCHH be dismissed without prejudice and with

leave to amend.

G. First Amendment Retaliation

Liberally read, plaintiff alleges that Rosa and Hamilton conspired with NYCHH to

rescind her job offer in retaliation for her exercise of her First Amendment right to petition

the government for redress of grievances, i.e. the commencement of this lawsuit. See

Dkt. No. 9-1 at 2; Oliver v. Penny, No. 1:19-CV-233 (BKS/DJS), 2020 WL 7316125, at *10

(N.D.N.Y. Dec. 11, 2020), aff'd, No. 21-111, 2022 WL 2165814 (2d Cir. June 16, 2022)

(quoting Monsky v. Moraghan, 127 F.3d 243, 246 (2d Cir. 1997)) (“It is well established

_,| that all persons enjoy a constitutional right of access to the courts, although the source o

this right has been variously located in the First Amendment right to petition for redress,

the Privileges and Immunities Clause of Article IV, section 2, and the Due Process Clauses

of the Fifth and Fourteenth Amendments.”).

1. Legal Standard

“First Amendment retaliation claims typically arise in three distinct contexts:

m| prisoners, public employees, and criticism of public officials by private citizens.” Decke

Advert. Inc. v. Delaware Cnty., New York, 765 F. Supp. 3d 128, 141 (N.D.N.Y. 2025)

(quoting Doe v. City of New York, 18-CV-670 (ARR/JO), 2018 WL 3824133, at *11

(E.D.N.Y. Aug. 9, 2018). “The Second Circuit has ‘described the elements of a First

Amendment retaliation claim in several ways, depending on the factual context.” /d.

(quoting Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008)). As it is unclea

19

whether plaintiff is to be considered an applicant for government employment or a private

citizen for the purposes of this claim, the undersigned will first discuss the elements

required to establish First Amendment retaliation in each instance.

a. Public Employee

“To state a First Amendment retaliation claim, a plaintiff must plausibly allege that:

‘(1) [her] speech or conduct was protected by the First Amendment; (2) the defendant took

an adverse action against [her]; and (3) there was a causal connection between [the]

adverse action and the protected speech.” Long v. Byrne, 146 F.4th 282, 291 (2d Cir.

2025) (Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)). “To

demonstrate that her speech or conduct is protected by the First Amendment, a publi

employee must first establish that she was ‘speaking as [a] citizen[ ] about matters of public

concern.” /d. (Garcetti v. Ceballos, 547 U.S. 410, 419 (2006)). “That inquiry ‘in turn

encompasses two separate subquestions: (1) whether the subject of the employee's

speech was a matter of public concern and (2) whether the employee spoke as a citizen

rather than solely as an employee.” /d. (quoting Matthews v. City of New York, 779 F.3d

167, 172 (2d Cir. 2015)). “If the answer to either question is no, that is the end of the

matter.” Matthews, 779 F.3d at 172.

First Amendment protections have also been extended to applicants for publi

employment.'* See Blitzer v. Potter, No. 03 CIV. 6124 (DLC), 2005 WL 1107064, at *14

(S.D.N.Y. May 6, 2005) (citing MacFarlane v. Grasso, 696 F.2d 217, 223 (2d Cir. 1982));

MacFarlane, 696 F.2d at 223 (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,

“NYC Health + Hospitals is the nation’s largest municipal health care delivery system in the United States.”

NEw YorRK CITY HEALTH AND HOSPITALS, “About NYC Health + Hospitals,”

https:/Avww.nychealthandhospitals.org/about-nyc-health-hospitals/ (last visited on Oct. 28, 2025).

20

429 U.S. 274, 287 (1977)) (“[I]f an applicant demonstrates that his protected speech

played a substantial role in the employer’s decision to reject his application, he is entitled

to relief unless the employer demonstrates by a preponderance of the evidence that the

application would have been rejected even in the absence of the speech.”).

b. Private Citizen

“A private citizen, on the other hand, must show: ‘(1) he has an interest protected

by the First Amendment; (2) defendants’ actions were motivated or substantially caused

by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise o

his First Amendment right.” Everitt v. DeMarco, 704 F. Supp. 2d 122, 129-30 (D. Conn.

2010) (quoting Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). “Unlike a public

employee, the speech of a private citizen ‘need not have been on a matter of public

concern for it to fall within the protection of the First Amendment[.]’”'> /d. at 130 (quoting

Williams, 535 F.3d at 77).

“The plaintiff must allege that his First Amendment rights were ‘actually chilled.”

Traylor v. Parker, No. 3:13-CV-1828 (AWT), 2015 WL 1268304, at *7 (D. Conn. Mar. 19,

2015) (quoting Davis v. Vill. Park Il Realty Co., 578 F.2d 461, 464 (2d Cir.1978)).

“Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific

m| present objective harm or a threat of specific future harm.” /d. (quoting Laird v. Tatum, 408

U.S. 1, 13-14 (1972)). “Where chilling is not alleged, other forms of tangible harm will

satisfy the injury requirement, since standing is no issue whenever the plaintiff has clearl

“The Curley ‘private citizen’ test does not apply in the context of a public employee who has suffered an

adverse employment action as a result of exercising his First Amendment rights.” Heusser v. Hale, 777 F.

Supp. 2d 366, 376 (D. Conn. 2011) (quoting Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir.2005)).

21

alleged a concrete harm independent of First Amendment chilling.” /d. (quoting Zherka v.

Amicone, 634 F.3d 642, 646 (2d Cir. 2011).

c. Need for Amendment

As discussed above, the undersigned recommends that plaintiff's complaint be

dismissed for failing to comply with Federal Rule of Civil Procedure 8 and for failing to

| demonstrate Rosa or Hamilton's personal involvement in the alleged retaliation against

her. See supra at 4-5, 11-15. Without sufficient factual support, at this early stage, the

undersigned declines to categorize plaintiff's First Amendment claims as falling under

private citizen or applicant for public employment. Regardless of the categorization, the

undersigned recommends that plaintiff's First Amendment retaliation claim be dismissed

without prejudice and with leave to amend because plaintiff cannot establish a retaliation

against Rosa or Hamilton without first demonstrating their personal involvement.

See Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001)

(“[P]Jersonal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983”)

H. § 1983 Conspiracy

Plaintiff alleges that Rosa and Hamilton conspired with NYCHH to rescind a job

m| Offer with CHS in retaliation for her commencing and continuing this lawsuit. See Dkt. No.

9-1 at 1-3. “The elements of a claim for conspiracy pursuant to § 1983 are ‘(1) an

agreement . . .; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act

done in furtherance of that goal causing damages.” Hester v. Aloany Cnty. Dist. Att’y, No.

1:20-CV-1153 (LEK/CFH), 2021 WL 1968201, at *8 (N.D.N.Y. Apr. 22, 2021), report an

recommendation adopted sub nom. Hester v. Regan, No. 1:20-CV-1153 (LEK/CFH), 2021

22

WL 1966743 (N.D.N.Y. May 17, 2021) (quoting Ciambriello v. County of Nassau, 292 F.3d

307, 324-25 (2d Cir. 2002) (additional citation omitted)). “An agreement must be proven

with specificity as bare allegations of a conspiracy supported only by allegations of conduct

easily explained as individual action is insufficient.” /d. (quoting McRae v. Fischer, No.

9:17-CV-146 (BKS/CFH), 2018 WL 3432743, at *6 (N.D.N.Y. June 6, 2018), report an

"| recommendation adopted, No. 9:17-CV-146 (BKS/CFH), 2018 WL 3432700 (N.D.N.Y. July

16, 2018)). “Although exact specifics are not required, ‘the pleadings must present facts

tending to show agreement and concerted action.” /d. (quoting Anilao v. Spota, 774 F.

Supp. 2d 457, 512-13 (E.D.N.Y. 2011)). “To sustain a conspiracy claim under 42 U.S.C. §

1983, a plaintiff must demonstrate that a defendant ‘acted in a willful manner, culminating

in an agreement, understanding or meeting of the minds, that violated the plaintiff's rights

secured by the Constitution or the federal courts.” /d. (quoting Malsh v. Austin, 901 F.

Supp. 757, 763 (S.D.N.Y. 1995)). “Conclusory, vague, and general allegations are

insufficient to support a conspiracy claim.” /d. (citing Ciambriello, 292 F.3d at 325).

Here, plaintiff's conspiracy claim amounts to a “conclusory, vague, and general

allegation.” Hester, 2021 WL 1968201, at *8. Plaintiff conclusorily alleges concerted action

between Rosa, Hamilton, and the NYSED, however, plaintiff fails to demonstrate or specify

m|how these parties acted together. See id. Further, because, as noted the NYSED is

entitled to sovereign immunity, plaintiff cannot proceed against it on conspiracy grounds.

See supra at 15-16. Plaintiff has not alleged any facts indicating (1) the existence of an

agreement; (2) concerted action amongst Rosa, Hamilton, and the NYCHH; and (3) an

overt act in furtherance of that agreement that caused harm. See Hester, 2021 WL

1968201, at *8. Plaintiff's amended complaint implies the existence of an agreement but

23

fails to provide any details concerning the agreement, including the manner in which the

agreement was reached or any respective obligations of the members of the alleged

agreement. See Dkt. No. 9-1 at 1-3; see also Hester, 2021 WL 1968201, at *8.

Further, to the extent that the NYCHH’ decision to rescind her job offer could be

considered an overt act, plaintiff has not connected this overt act to any alleged agreement

or shown that Rosa or Hamilton were personally involved in the overt act. See Hester,

2021 WL 1968201, at *8-9; Tangreti, 983 F.3d at 618; Avent v. Reardon, No. 1:19-CV-1565

(GTS/CFH), 2020 WL 7705938, at *6 (N.D.N.Y. Dec. 28, 2020) (“[T]he Amended Complaint

suffers from the same defect as the Original Complaint in that plaintiff advances onl

conclusory allegations with respect to Cornell’s involvement in the alleged conspiracy and,

therefore, has failed to establish Cornell's personal involvement — which is fatal to his

_,| Section 1983 conspiracy claim.”) (citing Wright, 21 F.3d at 501 (‘It is well settled in this

Circuit that personal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.”)). As stated above, the NYCHH is an

entity that is separate and distinct from the individual defendants.

However, because it is possible that plaintiff may be able to amend to cure these

defects, as well as those identified in the underlying First Amendment retaliation claim, out

| Of special solicitude, the undersigned recommends that plaintiff's § 1983 conspiracy claim

be dismissed without prejudice and with leave to amend. See Hester, 2021 WL 1968201,

at *8; Tangreti, 983 F.3d at 618.

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

24

that a valid claim might be stated.” Gerken, 2024 WL 4608307, at *15 (quoting Nie/sen 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. (citing Edwards v. Penix, 388 F. Supp. 3d 135, 144-45

(N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

For the reasons detailed herein, it is recommended that insofar as plaintiff seeks to

(1) obtain mandamus relief, (2) proceed against Rosa and Hamilton in their official

capacities for monetary damages, and (3) proceed against NYSED and CHS, such claims

be dismissed in their entirety without prejudice and without opportunity to amend. It is

further recommended that plaintiff's (1) Fourteenth Amendment Equal Protection claims

against Rosa and Hamilton in their individual capacities, (2) First Amendment retaliation

claims for monetary damages against Rosa and Hamilton in their individual capacities and

as against NYCHH, and (3) § 1983 conspiracy claim against Rosa, Hamilton, and NYCHH,

be dismissed in their entirety without prejudice and with opportunity to amend.'®

V. Conclusion

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

tri RECOMMENDED, that insofar as plaintiff seeks to proceed against Rosa in he

official capacity for monetary damages (Dkt. No. 9-1), such claim be DISMISSED without

prejudice and without leave to amend; it is further

In the event the District Judge adopts the undersigned’s Report-Recommendation & Order and plaintiff is

permitted to file a second amended complaint, plaintiff is advised that any amended pleading cannot

incorporate a prior pleading by reference and may not attempt to replead claims that have already been

dismissed by this Court with prejudice. Any amended pleading supersedes and replaces a prior pleading in

its entirety. An amended pleading must establish this Court’s jurisdiction and state a claim for relief against

each named defendant for whom leave to replead was granted according to Rules 8 and 10 of the Federal

Rules of Civil Procedure.

25

RECOMMENDED, that insofar as plaintiff seeks to proceed against Hamilton in his

official capacity for monetary damages (Dkt. No. 9-1), such claim be DISMISSED without

prejudice and without leave to amendz; it is further

RECOMMENDED, that insofar as plaintiff seeks to proceed against the New York

State Education Department (Dkt. No. 9-1), such claim be DISMISSED without prejudice

“| and without leave to amend; it is further

RECOMMENDED, that insofar as plaintiff seeks to proceed against the Correctional

Health Services (Dkt. No. 9-1), such claim be DISMISSED without prejudice and without

leave to amend; it is further

RECOMMENDED, that insofar as plaintiff may seek to proceed against the Ne

York City Health and Hospitals alleging First Amendment retaliation and § 1983 conspiracy

_,|(Dkt. No. 9-1), such claims be DISMISSED in their entirety without prejudice and with

leave to amend; it is further

RECOMMENDED, that insofar as plaintiff seeks mandamus relief (Dkt. No. 9-1),

such claim be DISMISSED without prejudice and without leave to amend; it is further

RECOMMENDED, that insofar as plaintiff seeks to proceed against Rosa and

Hamilton in their individual capacities for monetary damages alleging Fourteenth

m| Amendment Due Process violations (Dkt. No. 9-1), such claims be DISMISSED in their

entirety without prejudice and without leave to amend; it is further

RECOMMENDED, that plaintiff's amended complaint (Dkt. No. 9-1) otherwise be

DISMISSED in its entirety without prejudice and with leave to amend; it is further

RECOMMENDED, that if the District Judge adopts this Report and

Recommendation Order, plaintiff be given thirty (30) days from the District Judge’s

26

Decision and Order adopting this Report-Recommendation & Order to file a second

amended complaint, and if plaintiff does not timely file a second amended complaint

pursuant to the District Judge’s Decision and Order, the Clerk may close this case without

the requirement of further order of the Court; and it is

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

“| 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

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), 72.17

Dated: October 29, 2025

Albany, New York

Zi

Paul J. Evangelista

U.S. Magistrate Judge

7 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 (14) day 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

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.

Id. § 6(a)(1)(c).

27