Flores

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________________________________

Valerie Flores,

Plaintiff,

v. 1:26-CV-15

(AJB/MJK)

Michelle Williams Court, et al,

Defendants.

_____________________________________________________________________

Valerie Flores, Pro Se

Mitchell J. Katz, U.S. Magistrate Judge

To the Honorable Anthony J. Brindisi, U.S. District Judge:

ORDER & REPORT- RECOMMENDATION

Flores began this action on January 6, 2025, by filing a complaint,

and moving for leave to proceed in forma pauperis (“IFP”) (Dkts. 1, 2).

The Clerk sent Flores’s Complaint and IFP application to this Court for

review. (Dkts. 1, 2).

I. BACKGROUND

Flores alleges that Judge Michelle Williams deprived her of a fair

trial because there was no trial. (Complaint, Dkt. 1, at pg. 6). Judge

Williams issued a transfer order, which Flores claims was backdated to

December 19, 2025 because the envelope was dated December 23, 2025.

(Id.).

II. IFP APPLICATION

Flores declares in her IFP application that she is unable to pay

the filing fee. (Dkt. 2). After reviewing her application, this Court finds

Flores is financially eligible for IFP status.

III. STANDARD OF REVIEW

Courts can, on their own, review the sufficiency of the allegations

in a Complaint. See 28 U.S.C. § 1915. That statute requires a court to

dismiss a case—at any time—if a court determines that the action is (1)

frivolous or malicious; (2) fails to state a claim on which relief may be

granted; or (3) seeks monetary relief against a defendant who is

immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).

When determining whether an action is frivolous, courts must

consider whether the complaint lacks an arguable basis in law or in

fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on

other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28

U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent

abuses of court process as well as to discourage the waste of judicial

resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802,

804 (8th Cir. 1974).

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

litigants and must use extreme caution when sua sponte dismissing pro

se complaints before adverse parties have been served and have had an

opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants

Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may

dismiss a frivolous complaint sua sponte even when plaintiff has paid

the filing fee). But courts still have a responsibility to determine that a

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

IV. DISCUSSION

Below, the Court reviews the sufficiency of Flores’s Complaint and

recommends the District Court dismiss Flores’s Complaint because

Judge Williams is immune, and the Complaint fails to state a claim.

* * *

The District Court should deny Flores’s claim because

Judge Williams enjoys judicial immunity and Flores’s

Complaint fails to state a claim.

The Court recommends dismissing Flores’s Complaint with

prejudice and without leave to amend because it seeks to sue a judicial

officer acting within their official capacity. Judges have absolute

immunity for their judicial acts performed in their judicial capacities.

See Mireles v. Waco, 502 U.S. 9, 11 (1991); see also Shtrauch v. Dowd,

651 F. App’x 72, 73-74 (2d Cir. 2016) (summary order) (“Generally, acts

arising out of, or related to, individual cases before the judge are

considered judicial in nature”) (cleaned up). “Judicial immunity applies

even when the judge is accused of acting maliciously or corruptly.” Coon

v. Merola, No. 19-CV-394 (DNH/ATB), 2019 WL 1981416, at *3

(N.D.N.Y. Apr. 8, 2019) (cleaned up). ‘“The only two circumstances in

which judicial immunity does not apply is when’” the judge ‘“takes

action outside”’ their ‘“judicial capacity”’ or ‘“when the judge takes

action that, although judicial in nature, is taken ‘in absence of

jurisdiction.’” Id. (quoting Mireles, 502 U.S. at 11-12). Here, Flores sues

Judge Williams because her order is dated December 19, 2025 and the

envelope is dated December 23, 2025. (Complaint, Dkt. 1, at pg. 6). At

bottom, the Flores’s quibble is with Judge Williams’s order. As a result,

Judge Williams is immune.

This immunity also extends to Judge Williams’s staff, which

Flores seems to also sue. See Cleavinger v. Saxner, 474 U.S. 193, 200

(1985); see also Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999);

Oliva v. Heller, 839 F.2d 37, 39-40 (2d Cir. 1988); Diaz v. Pataki, 368 F.

Supp. 2d 265, 271 (S.D.N.Y. Apr. 26, 2005) (quoting Ashland Equities

Co., 110 A.D. 2d 60 at 63 (1st Dept. 1985 )) (holding that the Bronx

County Clerk’s “‘primary function’ is to ‘serve as clerk of the Supreme

Court’ of Bronx County, a state court”) (cleaned up).

To the extent that the District Court disagrees with that

assessment, it should find that Flores’s Complaint fails to state a claim

and dismiss the Complaint without prejudice and with leave to amend.

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

statement of the claim showing that the pleader is entitled to relief …”

Fed. R. Civ. P. 8(a)(2). “The purpose of” Rule 8 “is to give fair notice of

the claim being asserted so” adverse parties have “the opportunity to

file a responsive answer, prepare an adequate defense, and determine

whether the doctrine of res judicata is applicable.” Flores v. Graphtex,

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

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

the court’s jurisdiction” and “a demand for the relief sought[.]” Fed. R.

Civ. P. 8(a)(1), (3). “Although ‘no technical form is required,’ the Federal

Rules make clear that each allegation contained in the pleading ‘must

be simple, concise, and direct.’” Cole v. Smrtic, No. 1:24-CV-847, 2024

WL 4870495, at *2 (N.D.N.Y. 2024) (quoting Fed. R. Civ. P. 8(d)).

Allegations “so vague as to fail to give the defendants adequate notice of

the claims against them” are subject to dismissal. Sheehy v. Brown, 335

F. App’x 102, 104 (2d Cir. 2009) (summary order). To survive dismissal

for failure to state a claim, a complaint must contain sufficient factual

matter, accepted as true, to state a claim that is “plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements

do not suffice.” Ashcroft, 556 U.S. at 678 (cleaned up). Here, Flores

alleges that she was deprived a fair trial, and that Judge Williams

engaged in misconduct by backdating an order. (Complaint, Dkt. 1, at

pg. 6). Yet she says nothing more. Additionally, Flores Complaint only

names Judge Patricia Donahue, it does not include any allegations

against her. See generally, (Complaint, Dkt. 1 ). That alone is

insufficient to state a claim. See Ashcroft, 556 U.S. at 678. In

consequence, the District Court should find that Flores’s Complaint

fails to state a claim.

V. CONCLUSION

WHEREFORE, based on the findings above, it is

ORDERED, that Flores’s motion to proceed IFP (Dkt. 2) is

GRANTED; and it is further

RECOMMENDED, the District Court dismiss Flores’s Complaint

WITH PREJUDICE and WITHOUT LEAVE TO AMEND because

Judge Williams enjoys judicial immunity; and it is further

RECOMMENDED, that if the District Court does not dismiss the

Complaint on immunity grounds, the District Court should dismiss

Flores’s Complaint WITHOUT PREJUDICE and WITH LEAVE TO

AMEND because the Complaint fails to state a claim; and it is

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

and Report-Recommendation on Plaintiff by regular mail.1

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

have 14 days within which to file written objections to the foregoing

report. Such objections shall be filed with the Clerk of the Court.

FAILURE TO OBJECT TO THIS REPORT WITHIN 14 DAYS

1 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited

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

curiam).

WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racetie,

984 F.2d 85, 89 (2d Cir. 1998) (citing Small v. Secretary of Health and

Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 686(b)(1); Fed.

R. Civ. P. 6(a), 6(e), 72.

Dated: January 14th, 2026

Hon. Mitchell J. Katz

U.S. Magistrate Judge

2024 WL 4870495

Only the Westlaw citation is currently available.

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

Matthew H. COLE, Plaintiff,

v.

Honorable Michael W. SMRTIC, et al. Defendants.

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

|

Signed November 21, 2024

Attorneys and Law Firms

MATTHEW H. COLE, 271 Market Street, Amsterdam, New York 12010, Plaintiff pro se.

REPORT-RECOMMENDATION & ORDER

CHRISTIAN F. HUMMEL, United States Magistrate Judge

I. In Forma Pauperis

*1 Plaintiff pro se Matthew H. Cole (“plaintiff”) commenced this action (No. 1:24-CV-00623) on May 6, 2024, by filing a

complaint. See Dkt. No. 1 (“Compl.”). On September 26, 2024, plaintiff submitted what the Court construes to be a supplement

to the complaint.1 See Dkt. No. 7. In lieu of paying this Court's filing fees, he submitted an application for leave to proceed

in forma pauperis (“IFP”). See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP application and determines that he

financially qualifies to proceed IFP.2 Thus, the Court proceeds to its review of the complaint pursuant to 28 U.S.C. § 1915.

Plaintiff has also submitted for the Court's review a Pro Se Application for Permission to File Electronically and a Motion to

Appoint Counsel. See Dkt. Nos. 4, 5.

II. Initial Review

A. Legal Standards

Section 1915 of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, “the court shall dismiss

the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before

permitting him to proceed with his action.

Where, as here, the plaintiff proceeds pro se, “the court must construe his submissions liberally and interpret them to raise the

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

quotation marks omitted); see also Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As the Second Circuit stated,

There are many cases in which we have said that a pro se litigant is entitled to “special solicitude,” that a pro se litigant's

“consistent” with the pro se litigant's allegations, or arguments that the submissions themselves do not “suggest,” that we

should not “excuse frivolous or vexatious filings by pro se litigants,” and that pro se status “does not exempt a party from

compliance with relevant rules of procedural and substantive law[.]”

*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citations and footnote omitted); see also Sealed

Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).

“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits, because pro se pleadings still must comply with ...

the Federal Rules of Civil Procedure [(‘Fed. R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952,

at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). Pleading guidelines are provided in the

Federal Rules of Civil Procedure. Specifically, Rule 8 requires the pleading to include:

(1) a short and plain statement of the grounds for the court's jurisdiction ...;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

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

FED. R. CIV. P. 8(a). Although “[n]o technical form is required,” the Federal Rules make clear that each allegation contained in

the pleading “must be simple, concise, and direct.” Id. at 8(d). “The purpose ... is to give fair notice of the claim being asserted

so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether

the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (internal quotation marks and

citations omitted). Allegations that “are so vague as to fail to give the defendants adequate notice of the claims against them”

are subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (summary order).

Further, Fed. R. Civ. P. 10 provides:

[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a

single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading.

If doing so would promote clarity, each claim founded on a separate transaction or occurrence – and each

defense other than a denial – must be stated in a separate count or defense.

FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for referring to a particular

paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that

fails to comply with the pleading requirements “presents far too a heavy burden in terms of a defendant's duty to shape a

comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of their claims.” Gonzales v.

Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not comply with the

requirement that it be short and plain, the court has the power, on its own initiative ... to dismiss the complaint.” Salahuddin v.

Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). However, “[d]ismissal ... is usually reserved for those cases in which

the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.”

Id. (citations omitted).

*3 This Court also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro

se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.

2000). “Legal frivolity ... occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the

claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.’ ” Aguilar v. United

States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)3 (quoting Livingston v. Adirondack

only if the legal theory ... or factual contentions lack an arguable basis.”).

B. Complaint

Plaintiff's civil cover sheet indicates that he seeks to bring this action pursuant to “Title U.S.C. 18 Section 241, Conspiracy

Against Rights & Title U.S.C. 18 Section 242 Deprivation of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil cover

sheet further provides that his cause of action involves, “Violation of Due process, Speedy Trial Rights, Ineffective Assistance

of Counsel. I feel I am being targeted for being black and gay.” Id.

Plaintiff's form complaint checks the box indicating that he seeks to bring this case pursuant to 42 U.S.C. § 1983. See Compl.

at 3. In response to the question in the form complaint asking in “what federal constitutional or statutory right(s) do you claim

is/are being violated by state or local officials,” plaintiff responds, “Due Process, 30.30 Speedy Trial Violation, Ineffective

Assistance of counsel.”4 Id. In response to a question asking him to explain “how each defendant acted under color of state

or local law,” plaintiff states “Each judge deliberately denied me due process, and refused to look into the paperwork to see

that i was improperly denied my speedy trial rights. It was a tean [sic] effort. The ADA/Special Prosecutor withheld potential

exculpatory material which was usd [sic] against me. All mentioned actions were done and upheld even after I showed federal

law with supportive case law as a pro se litigant.” Id.

Plaintiff provides that his “case is still on appeakl [sic] in Appellate Court Third Department. I feel they are guilty, or part of

what I call a scandal. I went to them from the very start with a complaint to the grievance committee, where they denied any

wrongdoing. It must be ok to violate Constitutional rights there. This is from March 2019 to present” Id.

In response to a question that asks plaintiff to state the facts underlying his claims, plaintiff states, “Please see attached Article

78 that is attached. It was dismissed being in the wrong court, but is on point.” Id. at 4. Plaintiff did not provide the Court with

any such attachment and has not submitted any Article 78 materials. See Compl., Dkt. No. 7.

In response to the form complaint's question asking about any injuries suffered as a result of the conduct he complains of,

plaintiff states, “Sever [sic] depression over 20 years, irreperable [sic] harm, defamation of charcter [sic] by arguments not

legally allowed to give. Loss of income, inability to gain and keep employment, mental trauma, instilled disbelief in justice in

the legal system, familial traumam [sic] due to my legal battles.” Id. Indicating the relief sought, plaintiff states

*4 Petitioner seeks reinstatement of driving priveldges [sic], and 10 million dollars for damages caused

by conflict of interest, deliberate violation of Due Process, Speedy Trial rights, Ineffective assistance of

counsel, malice, Brady Violation, Petitioner claims deliberate misconduct and malice in Montgomery

County Court, the Saratoga Disrict Attorney's Office, and the Supreme Court Appellate Division Third

department. ** This is subject to change if an attorney agrees to represent.

Compl. at 5. Although he typed his name, plaintiff does not sign the complaint where a signature is indicated. See id. at 8.

Plaintiff provides in his supplement that he “removed this action to district court asserting jurisdiction pursuant to 42 U.S.C.

1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states that he removed this case from Montgomery County Supreme Court. See

id. He states that he seeks or sought the removal because he was told he was “not guarantee counsel” at the state, but that

“[i]n Federal Court, there is that option, pending qualification, and I am told, if a lawyer agrees to take it, then I really have

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

Plaintiff states, “[t]he ineffective assistance of counsel and The County Court are a matter already mentioned in the appeal.” Dkt.

No. 7 at 2. Plaintiff states that “[t]o get my conviction, I allege judicial and prosecutorial misconduct, and ineffective assistance

of counsel × 4. That is why I am pro se. I had to protect myself when appointed counsel did not. It also went through a couple

judges which is why they are mentioned in the preliminary complaint/paperwork, and why I mention bias.” Id. Plaintiff states he

can “prove each thing I saw not just with my words, but with transcripts5 from the County Court, and the Adult Drug Court.”

Id. Plaintiff refers to being drug free for four and a half years and having academic success in college. Id. at 3. He states that he

wishes this Court to hear his case because he believes he will not “see bias” in federal court “like I saw in others.” Id. Plaintiff

states that he “also put in a Notice of Removal in the Federal Court for those criminal charges that led to the Complaint. I do not

trust the assigned appellate attorney. That case too has Constitutional violations. That case number is 1:24-CR-301 (AMN).” Id.

C. Discussion6

1. Rule 8

As a threshold issue, plaintiff's complaint fails to meet the requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He does not

provide a short and plain statement of the claim demonstrating why he is entitled to relief. Although he makes general references

to both an Article 78 proceeding and a criminal proceeding and unexplained references to “Due Process, 30.30 Speedy Trial

Violation, Ineffective of Counsel,” he does not provide factual support or context. Thus, his complaint does not provide “fair

notice” to defendants of the claims against them. See FED. R. CIV. P. 8(a)(2).

2. Heck v. Humphrey

However, there are several substantive concerns that further lead the undersigned to recommend dismissal. First, in referencing

to “Due Process, 30.30 Speedy Trial Violation, Ineffective of Counsel” and explicitly referencing a criminal conviction, it is

clear that plaintiff is attempting to seek some kind of review of a criminal proceeding or conviction. See Compl. at 3. Plaintiff

also accuses all named judges of denying him due process and contends that an unnamed “ADA/Special Prosecutor withheld

potential exculpatory material which was usd [sic] against me.” Compl. at 4. Plaintiff also references a conviction. See Dkt.

No. 7 at 4. Such claims would be barred by Heck v. Humphrey.

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

In Heck, the Supreme Court held that in order for a plaintiff “to recover damages for allegedly unconstitutional conviction

or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a

§ 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance

of a writ of habeas corpus.” Id. at 486-87. The court further held that “[a] claim for damages bearing that relationship to a

conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487 (emphasis in original).

[ ]

Thus, under Heck and its progeny, if a conviction has not been invalidated previously, a Ҥ 1983 action is barred ... no matter

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) (emphasis in original).

Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024 WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-recommendation

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

2022), aff'd, No. 22-3197, 2023 WL 7538211 (2d Cir. Nov. 14, 2023)).

Plaintiff has failed to demonstrate that any criminal charge(s), conviction, or sentence has been “reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question

by a federal court's issuance of a writ of habeas corpus.” Zografidis, 2022 WL 21756775, at *7. Although plaintiff's complaint

wants for detail, the undersigned can clearly determine that plaintiff seeks review of his criminal proceedings, conviction, and/

or sentence. The claims plaintiff seeks to pursue relate to allegations that he was denied due process, denied speedy trial rights,

and experienced ineffective assistance of counsel. Accordingly, plaintiff's claims are barred by Heck unless and until he can

demonstrate favorable termination of his criminal conviction.7

3. Immunities

Plaintiff names as defendants several defendants who are immune from suit. Insofar as plaintiff names Hon. Michael W. Smrtic,

Interim Montgomery County Judge and Tatiana N. Coffinger, “County/Family/Surrogate's Court Judge”8 such claims would

be barred by judicial immunity.

*6 “With minor exceptions, judges are entitled to absolute immunity for actions relating to the exercise of their judicial

functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017) (citing

Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam)). “Judicial immunity has been created for the public interest in having

judges who are ‘at liberty to exercise their functions with independence and without fear of consequences.’ ” Id. (quoting

Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even when the judge is accused of acting

maliciously or corruptly.” Id. (citation omitted); see Positano v. New York, No. 12-CV-2288 (ADS/AKT), 2013 WL 880329,

at *4 (E.D.N.Y. Mar. 7, 2013) (explaining that the plaintiff may not bring action against a judge for actions taken in his judicial

capacity, even when the actions violated the ADA).

“Judicial immunity is immunity from suit, not just immunity from the assessment of damages.” Zavalidroga, 2017 WL 8777370,

at *8 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The only two circumstances in which judicial immunity does

not apply is when he or she takes action ‘outside’ his or her judicial capacity and when the judge takes action that, although

judicial in nature, is taken ‘in absence of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12). “In determining whether or

not a judge acted in the clear absence of all jurisdiction, the judge's jurisdiction is ‘to be construed broadly, and the asserted

immunity will only be overcome when the judge clearly lacks jurisdiction over the subject matter.’ ” Pacherille v. Burns, 30 F.

Supp. 3d 159, 163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just. Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary

order)). “Whether a judge acted in a judicial capacity depends on the nature of the act [complained of] itself, i.e., whether it is

a function normally performed by a judge, and [on] the expectations of the parties, i.e., whether they dealt with the judge in

his judicial capacity.” Ceparano, 404 F. App'x at 539 (internal quotation marks and citation omitted). “Further, if the judge is

performing in his judicial capacity,” he “ ‘will not be deprived of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence

of all jurisdiction.’ ” Ceparano, 404 F. App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). “Judges are not,

however, absolutely ‘immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity.’ ”

Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).

Thus, as plaintiff names the judicial defendants in relation to actions or omissions that they took in their roles as judges, their

actions are protected by absolute judicial immunity. To the extent plaintiff names Hon. Felix Catena, “Retired Administrative

Law Judge,” Judge Catena is also protected by absolute judicial immunity as a judge's retirement, “does not impact [his or]

her immunity for acts taken in [his or] her official capacity before her retirement.” McCray v. Lewis, No. 16-CV-3855 (WFK/

VMS), 2016 WL 4579081, at *2 (E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to sue the judges their official

(“The Eleventh Amendment shields judges from suit to the extent that they are sued in their official capacities.”).

*7 In addition, plaintiff also references, exclusively in his “relief” section of the form complaint, “the Supreme Court Appellate

Division, Third Department” when stating that he experienced “deliberate misconduct and malice.” Compl. at 7. He does not

name this Court as a defendant anywhere in the complaint. However, even if plaintiff were to have named the Appellate Division,

Third Department as a defendant, such defendant would also need to be dismissed based on Eleventh Amendment immunity

as the Appellate Division “is merely an agency or arm of New York State.” Benyi v. New York, No. 3:20-CV-1463 (DNH/

ML), 2021 WL 1406649, at *5 (N.D.N.Y. Mar. 23, 2021), report and recommendation adopted, No. 3:20-CV-1463, 2021 WL

1404555 (N.D.N.Y. Apr. 13, 2021) (citation omitted). Accordingly, to the extent a liberal reading of the complaint may suggest

that plaintiff seeks to name the Appellate Division as a defendant, such claims are barred by Eleventh Amendment immunity.

See Compl.

Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V. Maxwell, Esq., Assistant District Attorney, in addition to the Heck

issues noted above, he would be protected by absolute prosecutorial immunity. As this Court has recently reiterated,

Prosecutors enjoy “absolute immunity from § 1983 liability for those prosecutorial activities ‘intimately associated with the

judicial phase of the criminal process.’ ” Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler v. Pachtman,

424 U.S. 409, 430 (1976)). This immunity encompasses “virtually all acts, regardless of motivation, associated with [the

prosecutor's] function as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotations and

citation omitted). Absolute immunity applies when a prosecutor's conduct, acting as an advocate during the judicial phase

of the criminal process, “involves the exercise of discretion.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011) (citing

Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).

Accordingly, absolute immunity extends to functions such as “deciding whether to bring charges and presenting a case to

a grand jury or a court, along with the tasks generally considered adjunct to those functions, such as witness preparation,

witness selection, and issuing subpoenas.” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013) (citing Imbler, 424

U.S. at 431 n.33); see also Flagler, 663 F.3d at 547 (explaining, “the Supreme Court has found prosecutors absolutely immune

from suit for alleged misconduct during a probable cause hearing, in initiating a prosecution, and in presenting the State's

case ... [but] withheld absolute immunity for conduct unrelated to advocacy, such as giving legal advice, holding a press

conference, or acting as a complaining witness.”). “[O]nce a court determines that challenged conduct involves a function

covered by absolute immunity, the actor is shielded from liability for damages regardless of the wrongfulness of his motive

or the degree of injury caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citing Cleavinger v. Saxner,

474 U.S. 193, 199-200 (1985)).

Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024 WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report and

recommendation adopted, No. 5:24-CV-573, 2024 WL 3548760 (N.D.N.Y. July 26, 2024).

Plaintiff appears to suggest that Mr. Maxwell “withheld potentially exculpatory material” that was used against him. Compl.

at 4. Beyond the Heck barriers already discussed, even if plaintiff could amend to provide greater detail, absolute immunity

would extent to even this alleged misconduct as such allegations clearly fall within the scope of prosecutorial immunity.

Accordingly, it is recommended that any claims against ADA Samuel V. Maxwell be dismissed for absolute prosecutorial

immunity. “Furthermore, because the District Attorney's prosecutorial immunity is substantive and not something that can be

corrected by a better pleading, I recommend that the dismissal be with prejudice.” Phillips v. New York, No. 5:13-CV-927,

2013 WL 5703629, at *5 (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 223 (2d Cir. 2000)).9

III. Conclusion

RECOMMENDED, that plaintiff's section 1983 claims against Honorable Michael W. Smrtic; Tatiana N. Coffinger, County/

Family/Surrogate's Court Judge; and Felix Catena, Retired Administrative Law Judge (Dkt. Nos. 1, 7) be DISMISSED WITH

PREJUDICE as follows: (1) claims brought against them in their personal/individual capacities for judicial immunity, and (2)

claims brought against them in their official capacities for Eleventh Amendment immunity; and it is further

RECOMMENDED, that plaintiff's section 1983 claims against Assistant District Attorney Samuel V. Maxwell (Dkt. Nos. 1,

7) be DISMISSED WITH PREJUDICE due to absolute prosecutorial immunity; and it is further

RECOMMENDED, that, to the extent a liberal reading of the complaint may suggest that plaintiff seeks to name the Appellate

Division, Third Department, as a defendant (Dkt. Nos. 1, 7), such claims be DISMISSED WITH PREJUDICE as barred by

Eleventh Amendment immunity, and it is

RECOMMENDED, that plaintiff's pro se motion for permission to file electronically (dkt. no. 4) and motion to appoint

counsel10 (dkt. no. 5) be DISMISSED AS MOOT based on the above recommendations, and it is

ORDERED, that the Clerk serve this Report-Recommendation & Order on plaintiff in accordance with the Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), 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 (14) DAYS WILL PRECLUDE

APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs.,

892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.11

All Citations

Slip Copy, 2024 WL 4870495

Footnotes

1 The submission includes a letter addressed to District Judge D'Agostino, titled, “Requirements for Cases Removed From

State Court,” Dkt. No. 7; a receipt from Montgomery County Clerk dated December 8, 2022; and a “Notice of Claim”

with the caption of Cole v. County of Montgomery, dated December 7, 2022. See Dkt. No. 7. The undersigned has

reviewed this submission in connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380 F. 3d

57, 67 (2d Cir. 2004).

2 Plaintiff is advised that, although he has been granted IFP status, he is still required to pay all fees and costs he may

incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees.

3 Any unpublished cases cited within this Report-Recommendation & Order have been provided to plaintiff.

who may have represented him. Any claims against the prosecutor would not be considered ineffective assistance of

counsel because Mr. Maxwell, as the prosecutor, was not plaintiff's attorney.

5 Plaintiff did not provide any transcripts.

6 As a courtesy, the Court has provided plaintiff with copies of any unpublished cases cited within this Report-

Recommendation & Order.

7 The undersigned recognizes that claims that are determined to be barred by Heck are dismissed without prejudice.

However, the undersigned has recommended dismissal with prejudice because plaintiff has only named defendants

who are immune from relief. Accordingly, the undersigned is recommending dismissal of the claims based on these

immunities, rather than a Heck dismissal. The undersigned has included the Heck review for sake of completeness.

8 Although plaintiff provides no facts regarding any family court proceedings, that he named a family court judge and

makes general reference to that he seeks review over actions taken by a family court judge. Even if plaintiff were

to amend his complaint to provide facts about any possible family court proceedings and details about any alleged

violations of his rights that he believes he faced in that Court, if plaintiff seeks this Court's review of an order of the

family court, such review would be barred by Rooker-Feldman, and if plaintiff seeks this Court's review or intervention

of a currently pending/ongoing Family Court proceeding, such review would be barred by Younger. See Porter v. Nasci,

No. 5:24-CV-0033 (GTS/TWD), 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), report and

recommendation adopted, 2024 WL 3158645 (N.D.N.Y. June 25, 2024) (“Under the Rooker-Feldman doctrine, a federal

district court lacks authority to review a final state court order or judgment where a litigant seeks relief that invites the

federal district court to reject or overturn such a final state court order or judgment.”); see also Diamond “D” Constr.

Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal courts [must] abstain from taking jurisdiction over

federal constitutional claims that involve or call into question ongoing state proceedings.”).

9 Plaintiff appears to characterize his submissions as a purported removal to federal court or suggests that he seeks to

remove his case from Montgomery County Court to this Court. See Dkt. No. 7 (citing 28 U.S.C. § 1441). However, in

addition to the infirmities mentioned above, plaintiff has not demonstrated that any proceeding related to this complaint

has been properly removed to, or is subject to removal to, this Court. See, e.g., 28 U.S.C. § 1446. Indeed, plaintiff's

submissions appear to indicate that plaintiff is the plaintiff in the County Court action. See id. § 1446(a).

10 The undersigned also notes that plaintiff did not contend that he made any efforts to obtain counsel on his own, show

proof of any attorneys he contacted. See Terminate Control Corp v. Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.

No. 5.

11 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. FED. R. CIV. P. 6(d). If the last day of that

prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next

day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).

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

2019 WL 1981416

Only the Westlaw citation is currently available.

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

Donald James COON, Plaintiff,

v.

Frank MEROLA, et al., Defendants.

1:19-CV-394 (DNH/ATB)

|

Signed 04/08/2019

Attorneys and Law Firms

Donald James Coon, Troy, NY, pro se.

ORDER and REPORT-RECOMMENDATION

Hon. Andrew T. Baxter, U.S. Magistrate Judge

*1 The Clerk has sent to the Court a civil rights complaint filed by pro se plaintiff Donald James Coon, together with a motion

to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2).

I. In Forma Pauperis (“IFP”) Application

A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). The court finds for

purposes of this recommendation, that plaintiff meets the financial criteria for IFP status.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the

sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss

the case at any time if the court determines that the action is (i) 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)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or

in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). 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. Eldridge, 505 F.2d 802,

804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in

ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to

respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed.

Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss

a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state

a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the

plaintiff's complaint under the above standards.

II. Complaint

Although plaintiff's complaint is very conclusory, a liberal reading of the allegations contained therein show that plaintiff

is attempting to allege that the Rensselaer County Clerk and his John/Jane Doe Deputy Clerks have violated plaintiff's

constitutional rights in connection with a state court law suit that plaintiff has attempted to bring. (Complaint (“Compl.”)

generally) (Dkt. No. 1). In order to understand plaintiff's allegations in this action, the court must discuss another action filed by

this plaintiff in 2016. In 2016, plaintiff filed a federal action in this court in which he named a variety of defendants, including

Police Chief George Bell, the Villages of Cambridge and Greenwich, various district attorneys, Claverack Insurance Company,

Glens Falls Hospital, Washington County Child Protective Services, and a police officer. Coon v. Bell, No. 1:16-CV-291 (TJM/

DJS).

*2 After initial review of plaintiff's complaint in Coon v. Bell, Magistrate Judge Daniel Stewart found that plaintiff failed

to state claims against the defendants and recommended that he be allowed to file an amended complaint in an effort to cure

the deficiencies in the original. (Dkt. No. 8 in 16-CV-291). United States District Court Judge Thomas J. McAvoy adopted

Magistrate Judge Stewart's recommendation on May 23, 2016. (Dkt. No. 11 in 16-CV-291). Plaintiff complied with the court's

direction and filed an amended complaint on May 23, 2016. (Dkt. No. 12 in 16-CV-291).

Magistrate Judge Stewart conducted an initial review of the amended complaint and found that plaintiff failed to cure most of

the deficiencies that were in the original. (Dkt. No. 13 in 16-CV-291). Magistrate Judge Stewart recommended dismissing most

of the claims and most of the defendants from the action, while allowing a Fourth Amendment illegal search claim and Fourth

Amendment excessive force claim to proceed against defendant Bell.1 (Dkt. No. 13 in 16-CV-291). Magistrate Judge Stewart's

recommendation was adopted by Judge McAvoy on November 2, 2016. (Dkt. No. 16 in 16-CV-291).

In Magistrate Judge Stewart's report and recommendation, he found that plaintiff's defamation claims against defendant Bell and

his attempted contract claims against defendant Bell and Claverack Insurance Company were, at best, state law claims.2 (Dkt.

No. 13 in 16-CV-291 at 4). Plaintiff then states that he “filed said claims” in the Rensselaer County Supreme Court. (Compl.

at 1). Plaintiff states that in 2017, Judge Andrew G. Ceresia granted plaintiff poor person status, but that when he went to the

Rensselaer County Clerk's office, defendant Merola told plaintiff that Judge Ceresia's order was “no good and they wouldn't

honor it.” (Compl. at 2). Plaintiff states that he brought Judge Ceresia's order to the Clerk's office four more times, and “finally”

on March 11, 2019, a clerk that plaintiff had never seen before stamped the Judge's order and kept a copy. (Id.)

Plaintiff alleges that he has been denied his “rightful benefits and access to the court.” Plaintiff states that he even had “to choose

between the suit or my housing,” and that he was homeless from January 12, 2018 until April 24, 2018. (Id.) Plaintiff states

that the Rensselaer County Supreme Court wrote plaintiff “2 times the County Clerk's staff made me pay for RJI motion I had

already paid for. They told me to give letter [sic] to the Clerk and I would get my monies back.” (Id.)

Plaintiff states that he is seeking “just compensation” for the Rensselaer County Clerks' actions who refused to recognize his

“poor person status” from 2017 until 2019. Plaintiff states that he still has not “received anything” from the “grant[ed] status”

because the Clerks refused to grant “my said status.” (Id.) Plaintiff seeks substantial monetary relief. (Id.)

III. Judicial Immunity

A. Legal Standards

*3 With minor exceptions, judges are entitled to absolute immunity for actions relating to the exercise of their judicial functions.

Mireles v. Waco, 502 U.S. 9, 9-10 (1991). Judicial immunity has been created for the public interest in having judges who are

“at liberty to exercise their functions with independence and without fear of consequences.” Huminski v. Corsones, 396 F.3d

53, 74 (2d Cir. 2004). Judicial immunity applies even when the judge is accused of acting maliciously or corruptly. Imbler v.

circumstances in which judicial immunity does not apply is when he or she takes action “outside” his or her judicial capacity and

when the judge takes action that, although judicial in nature, is taken “in absence of jurisdiction.” Mireles, 502 U.S. at 11-12.

Absolute immunity extends to court clerks who perform tasks “ ‘which are judicial in nature and an integral part of the judicial

process.’ ” Proctor v. Quinn, No. 19-CV-833, 2019 WL 692935, at *2 (E.D.N.Y. Feb. 19, 2019) (quoting Rodriguez v. Weprin,

116 F.3d 62, 66 (2d Cir. 1997)). The court's “ ‘inherent power to control its docket is part of its function of resolving disputes

between parties’ and is thus ‘a function for which judges and their supporting staff are afforded absolute immunity.’ ” Id.

(quoting Rodriguez, 116 F.3d at 66); and citing Pikulin v. Gonzalez, No. 07-CV-0412 (CBA), 2007 WL 1063353, at *2 (E.D.N.Y.

Apr. 5, 2007) (finding that absolute judicial immunity extends to “the Clerk's Office activities of filing and docketing legal

documents”). However, a court clerk may not be entitled to absolute immunity where the clerk's refusal to accept the papers of

a litigant seeking to commence an action results in the deprivation of the individual's constitutional rights. Glass v. New York

Supreme Court Appellate Division, No. 1:17-CV-226, 2017 WL 9487181, at *3 (N.D.N.Y. Apr. 26, 2017) (citations omitted).

In determining whether the clerk's conduct in a particular case is “judicial” in nature, the court takes a “functional approach” and

allows the defendant absolute immunity when the clerk is performing a “discretionary act, or performing a duty that inherently

relates to resolving a dispute.” Vance v. State of New York Dep't of Corrections, No. 9:18-CV-748, 2018 WL 6047828, at *10

(N.D.N.Y. Nov. 19, 2018) (quoting Dzwonczyk v. Suddaby, No. 10-CV-0300, 2010 WL 1704722, at *6 (N.D.N.Y. Apr. 28,

2010) (citing Rodriguez, 116 F.3d at 67) (internal quotation marks omitted)).

B. Application

Plaintiff's statements in this case are conclusory and essentially, he is suing the “clerks” because they would not file his poor

person status order between 2017 and 2019. At best, he alleges a delay in granting him poor person status because it appears that

a clerk finally took and filed plaintiff's order, and at the end of his complaint, plaintiff alleges that he “still” has not “received a

thing or any help from the granyted [sic] status.” (Compl. at 2) (emphasis added). It is unclear what plaintiff believes he should

have “received” or to what “help” he thinks he is entitled from the clerks beyond filing his order.

It is also unclear how plaintiff alleges that he was denied “access to courts” because he states that he filed his state law claims

in the Rensselaer County Supreme Court. (Compl. at 1). However, he claims he was denied his “rightful benefits,” and that

somehow the clerk's actions in delaying the filing of his poor person order were related to his homelessness between January

12, 2018 and April 24, 2018. Plaintiff claims that he had to choose between “the suit” or his housing, but he does not explain

why this is true or why this would be a denial of his constitutional rights. Plaintiff also states that the clerks made plaintiff pay

for his RJI “motion,” but that he was told that if he wrote a letter, he would get his money back.

*4 As it is written, plaintiff's complaint is too conclusory to state a claim against any of the clerks in this action, whether

named or unnamed,3 and the court will recommend dismissal.

IV. Opportunity to Amend

A. Legal Standards

Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity to amend

at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co.,

987 F.2d 129, 131 (2d Cir. 1993).

B. Application

In this case, the court will recommend dismissal without prejudice, even though the court has serious doubts that plaintiff will

be able to amend his complaint to state a claim. However, because there are situations in which a clerk would not be entitled to

the court will recommend dismissal without prejudice to plaintiff submitting an amended complaint.

If the court adopts this recommendation, and plaintiff is afforded the opportunity to amend, he should be afforded forty-five

(45) days from the date of the order adopting this court's recommendation. Plaintiff should also be advised that if he files an

amended complaint, it must be a complete pleading which must supercede the original and may not incorporate any facts from

the original by reference.

WHEREFORE, based on the findings above, it is

ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) be GRANTED for purposes of filing, and it is further

RECOMMENDED, that the complaint be DISMISSED based on quasi-judicial immunity and for failure to state a claim

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii) WITHOUT PREJUDICE to plaintiff filing an amended complaint, and it is

RECOMMENDED, that if the District Court adopts this recommendation, plaintiff be directed to file his amended complaint

or ask for an extension of time to do so within FORTY-FIVE (45) DAYS from the date of the District Court's order adopting

the recommendation, and it is

RECOMMENDED, that if plaintiff files an amended complaint within the appropriate time, the court return the proposed

amended complaint to me for initial review, and it is

RECOMMENDED, that if the court adopts this recommendation, and plaintiff fails to file an amended complaint or ask for

an extension of time to do so at the expiration of the forty-five (45) days, the complaint be dismissed with prejudice and the

case closed, and it is

ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on plaintiff by regular mail.

Pursuant to 28 U.S.C. § 636(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. Roldan v. Racette, 984 F.2d

85, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)

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

All Citations

Not Reported in Fed. Supp., 2019 WL 1981416

Footnotes

1 Defendant Bell has since passed away, and his estate's representative has been substituted as a party. (Dkt. Nos. 52,

71). Another defendant was joined to 16-CV-291, and there have been various other proceedings in that case, but those

details are not relevant to this action.

2 Although plaintiff states in this action that Magistrate Judge Stewart told plaintiff that the contract and defamation claims

“needed to be refiled in Supreme Court,” that is not exactly what Magistrate Judge Stewart said. His exact words were

No. 13 in 16-CV-291 at 4) (emphasis added). The court merely notes this for the record. Magistrate Judge Stewart's

dismissal and his language are not relevant to the findings herein.

3 Finally, the court must note that the United States Marshal would not be able to effect service of process on a “John

or Jane Doe” defendant. In order for plaintiff to pursue his claims against John Doe defendants, he would ultimately

be required to ascertain their identity. LaPoint v. Vasiloff, No. 5:15-CV-185, 2015 WL 1524437, at *4 (N.D.N.Y. Apr.

2, 2015).

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

335 Fed.Appx. 102

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

United States Court of Appeals,

Second Circuit.

Sandra SHEEHY, et al., Plaintiffs–Appellants,

v.

Thomas P. BROWN, et al., Defendants–Appellees.

No. 08–0102–cv.

|

June 23, 2009.

Synopsis

Background: Plaintiffs appealed, pro se, a judgment of the United States District Court for the Western District of New York,

Telesca, J., sua sponte dismissing their complaint.

Holdings: The Court of Appeals held that:

[1] plaintiffs failed to establish § 1983 claims arising out of their allegedly false prosecutions, and

[2] plaintiffs failed to state a claim for conspiracy to interfere with civil rights.

Affirmed.

West Headnotes (2)

[1] Civil Rights Criminal prosecutions

Plaintiffs failed to allege that their convictions or sentences were invalidated or otherwise expunged, as required to

establish § 1983 claims arising out of their allegedly false prosecutions. 42 U.S.C.A. § 1983.

50 Cases that cite this headnote

[2] Conspiracy Civil rights conspiracies

Plaintiffs failed to allege the formation of a conspiracy, and overt acts in furtherance of such conspiracy, as required

to state a claim for conspiracy to interfere with civil rights. 42 U.S.C.A. § 1985.

395 Cases that cite this headnote

*103 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the

district court is AFFIRMED.

Attorneys and Law Firms

Sandra Sheehy, pro se.

Robert Sheehy, pro se.

Patrick Sheehy, pro se.

Bobbi Sheehy, pro se.

Billie Sheehy, pro se.

Casey Sheehy, pro se.

Sherry Sheehy, pro se.

PRESENT: Hon. PIERRE N. LEVAL, Hon. ROSEMARY S. POOLER and Hon. B.D. PARKER, Circuit Judges.

SUMMARY ORDER

**1 Plaintiffs–Appellants Sandra, Robert, Patrick, Bobbi, Billie, Casey, and Sherri Sheehy, pro se, appeal from the judgment of

the United States District Court for the Western District of New York (Telesca, J.), sua sponte dismissing the complaint, pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii). We assume the parties' familiarity with the facts, procedural history and issues on appeal.

Having reviewed de novo the district court's sua sponte dismissal under § 1915(e), see Giano v. Goord, 250 F.3d 146, 149–50

(2d Cir.2001), we conclude that the district court did not err in dismissing Appellants' complaint.

[1] First, any 42 U.S.C. § 1981 or § 1983 claim against Appellees Lucy or Edward Sherwood, Thomas Fuoco, Mark

Wattenberg, or Steve Presutti was properly dismissed, as private actors and institutions generally are not proper § 1983

defendants. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (§ 1983

actions do not reach purely private conduct). Additionally, for an individual to recover damages for an allegedly unconstitutional

conviction or imprisonment, he or she “must prove that the conviction or sentence has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal ... or called into question by a federal court's issuance of a writ of habeas

corpus....” Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Thus, any § 1983 claims arising

out of the allegedly false prosecutions of Sandra, Patrick, or Robert Sheehy were appropriately dismissed, as Appellants did

not allege that their convictions or sentences were invalidated or otherwise expunged. Id.

*104 As for the American Society for the Prevention of Cruelty to Animals, the Allegany County Society for the Prevention

of Cruelty to Animals, and Appellee Presutti, claims against these defendants were properly dismissed, as Appellants did not

allege any wrongdoing on their part or specify how they were involved in the constitutional violations alleged. See 28 U.S.C.

§ 1915(e)(2). Next, to the extent that Appellants challenge the conduct of county district attorneys or state court judges, such

actors are entitled to immunity. Nixon v. Fitzgerald, 457 U.S. 731, 766, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); Imbler v.

Pachtman, 424 U.S. 409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct.

2606, 125 L.Ed.2d 209 (1993).

Appellants also assert § 1983 claims against: (1) county sanitation workers for entering the Sheehys' property, in violation of their

property and privacy rights; (2) state troopers for use of excessive force and retaliation; and (3) Allegany County Department of

Social Services employees for entering the Sheehys' property and removing the Sheehy children from their homes, in violation

of their First, Fourth, and Ninth Amendment rights. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a

(2009). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal

citations and alterations omitted). We conclude that because the Appellants' § 1983 allegations are so vague as to fail to give

the defendants adequate notice of the claims against them, the district court did not err in dismissing them.

**2 [2] Appellants also assert claims under § 1985, for which a plaintiff must allege: (1) a conspiracy, (2) which has an intent

or purpose to deprive a person of equal protection of the law; (3) an act in furtherance of the conspiracy; (4) which results in

an injury to a person, or a person's property, or the deprivation of a federal constitutional right. See Mian v. Donaldson, Lufkin

& Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir.1993) (per curiam). Here, the Appellants' claims of conspiracy failed to

specifically allege (1) the formation of a conspiracy; or (2) overt acts in furtherance of such conspiracy. Thus, the district court

correctly dismissed any claims brought pursuant to §§ 1985 and 1986.

To the extent that Appellants assert claims based on the violation of federal criminal statutes, such as 18 U.S.C. §§ 241–242,

these claims are not cognizable, as federal criminal statutes do not provide private causes of action. See Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 511 (2d Cir.1994). In addition, any claim brought under 42 U.S.C. § 2000d, which prohibits

the exclusion of individuals from a federally funded program or activity on the basis of race, color, or national origin, properly

was dismissed, as Appellants did not allege that they were excluded from a federally funded program or activity and, thus, no

claim exists under that statute. Similarly, although former 42 U.S.C. § 13981 authorized a cause of action arising out of a crime

of violence motivated by gender, the Supreme Court has held that statute unconstitutional. See United States v. Morrison, 529

U.S. 598, 601, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

We have reviewed Appellants' remaining arguments and find them to be without merit. We also note here that we see no *105

indication in the record that Appellants perfected service on any of the defendants in this case.

Therefore, for the reasons stated above, the judgment of the district court is AFFIRMED.

All Citations

335 Fed.Appx. 102, 2009 WL 1762856

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

651 Fed.Appx. 72

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.

Moshe SHTRAUCH, Plaintiff–Appellant,

v.

Kevin M. DOWD, Individually and as the administrator of the

Supreme Court building in Norwich, NY, Defendant–Appellee.

15–2727

|

June 10, 2016

Synopsis

Background: Plaintiff brought § 1983 action against judge for allegedly violating his First, Fourth, Fifth, and Fourteenth

Amendment rights by having him removed from the courthouse during his divorce proceedings. The United States District

Court for the Northern District of New York, Thomas J. McAvoy, J., 2015 WL 4508604, granted judge's motion to dismiss,

and plaintiff appealed .

[Holding:] The Court of Appeals held that judge had judicial immunity from plaintiff's suit.

Affirmed.

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

West Headnotes (1)

[1] Civil Rights Judges, courts, and judicial officers

Judge had judicial immunity from plaintiff's § 1983 action alleging he violated plaintiff's First, Fourth, Fifth, and

Fourteenth Amendment rights by having him removed from the courthouse for allegedly behaving improperly during a

conference in chambers, even though judge had recused himself from plaintiff's divorce proceedings prior to ordering

that he be removed from the courthouse; the removal of plaintiff from the courthouse was a function typically

performed by a judge in his judicial capacity and in relation to an individual case, and whether plaintiff was correct

in asserting that he did not violate decorum under New York court rules was irrelevant to the question of immunity.

U.S. Const. Amend. 1, 4, 5, 14; 42 U.S.C.A. § 1983; N.Y. Comp. Codes R. & Regs. tit. 22, § 100.3(B)(2).

65 Cases that cite this headnote

Appeal from a judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, *73 AND DECREED that the judgment

of the district court is AFFIRMED.

Attorneys and Law Firms

For Petitioner–Appellant: Moshe Shtrauch, pro se, Mount Upton, NY.

For Defendant–Appellee: Jonathan D. Hitsous, Assistant Solicitor General (Barbara D. Underwood, Solicitor General and

Andrew B. Ayers, Senior Assistant Solicitor General, on the brief ), for Eric T. Schneiderman, Attorney General of the State

of New York, Albany, NY.

PRESENT: ROBERT D. SACK, GERARD E. LYNCH, Circuit Judges, J. GARVAN MURTHA,* District Judge.

SUMMARY ORDER

Appellant Moshe Shtrauch, proceeding pro se, appeals the district court's judgment dismissing his 42 U.S.C. § 1983 complaint

asserting that Kevin Dowd, a New York state justice, violated his First, Fourth, Fifth, and Fourteenth Amendment rights as

barred by judicial immunity.1 We assume the parties' familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

“It is well settled that judges generally have absolute immunity from suits for money damages for their judicial actions.” Bliven v.

Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Additionally, “in any action brought against a judicial officer for an act or omission taken

in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory

relief was unavailable.” 42 U.S.C. § 1983. “Judges are not, however, absolutely ‘immune from liability for nonjudicial actions,

i.e., actions not taken in the judge's judicial capacity.’ ” Bliven, 579 F.3d at 209, quoting Mireles v. Waco, 502 U.S. 9, 11, 112

S.Ct. 286, 116 L.Ed.2d 9 (1991). Moreover, judicial immunity does not bar a claim for prospective injunctive and declaratory

relief. Cf. Pulliam v. Allen, 466 U.S. 522, 541–43, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984).

We employ “a ‘functional’ approach” to determine whether an act is “judicial” because judicial “immunity is justified and

defined by the functions it protects and serves, not by the person to whom it attaches.” Forrester v. White, 484 U.S. 219, 224,

227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (emphasis in original). “[T]he factors determining whether an act by a judge is

a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the

expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349,

362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Generally, “acts arising out of, or related to, individual cases before the judge are

considered judicial in nature,” Bliven, 579 F.3d at 210, whereas, “[a]dministrative decisions, even though they may be essential

to the very functioning of the courts, have not similarly been regarded as judicial acts,” Forrester, 484 U.S. at 228, 108 S.Ct.

538. This Court looks to state law to “inform [the] inquiry as to whether [judges] acted ... in their judicial capacities.” *74

Huminski v. Corsones, 396 F.3d 53, 76 (2d Cir. 2005).

Dowd was entitled to judicial immunity because the act underlying Shtrauch's claims—the removal of Shtrauch from the

courthouse—was a function typically performed by a judge in his judicial capacity and in relation to an individual case. See 22

N.Y.C.R.R. § 100.3(B)(2) (providing that a judge in New York “shall require order and decorum in proceedings before” him);

People v. Knowles, 88 N.Y.2d 763, 766, 650 N.Y.S.2d 617, 673 N.E.2d 902 (1996) (stating that judges in New York “possess

inherent authority” to control the conduct of the trial before them); see also Huminski, 396 F.3d at 79 (concluding that defendant

was entitled to judicial immunity for barring litigant from courthouse because she “acted pursuant to Vermont law in ensuring

the security of the courthouse”). Moreover, in this case, Dowd ordered Shtrauch removed based on Dowd's perception—right or

in asserting that he did not violate decorum is irrelevant to the question of immunity; by definition, immunity protects wrongful

as well as appropriate exercises of a judicial function. See Stump, 435 U.S. at 359, 98 S.Ct. 1099.

Shtrauch argues that Dowd is not entitled to judicial immunity because Dowd recused himself from Shtrauch's divorce

proceedings prior to ordering that Shtrauch be removed from the courthouse. Dowd's recusal from Shtrauch's case, however,

does not alter the functional analysis of the underlying act. The removal of a litigant from a courtroom remains conduct typically

performed by a judge in his judicial capacity arising directly from an individual case before the judge. The judge's decision

to grant a recusal motion does not deprive the judge of authority to address perceived misbehavior during the proceeding on

that motion.

Shtrauch is not entitled to injunctive relief because he “allege[d] neither the violation of a declaratory decree, nor the

unavailability of declaratory relief.” See Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999). Nor is Shtrauch entitled to

declaratory relief because he alleges only past conduct and does not seek to prevent an ongoing or future violation of federal

law. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698 (3d Cir. 1996) (concluding that relief sought was not prospective

where the “specific allegations target[ed] past conduct” and the “remedy [was] not intended to halt a present, continuing violation

of federal law”).

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

judgment of the district court.

All Citations

651 Fed.Appx. 72

Footnotes

* The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation.

1 Shtrauch also moves to supplement the record on appeal to include the transcript of a state court proceeding. “[A]bsent

extraordinary circumstances, federal appellate courts will not consider ... evidence which [is] not part of the [district

court] record.” Int'l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). Nevertheless, because it is undisputed

that the transcript is accurate, the inclusion of the transcript does not affect the merits of the case, and we have necessarily

reviewed the transcript in the course of deciding the motion, the motion is granted.

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