# Jarvis

> District Court, N.D. New York · January 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11247014

## Case

- **Full name:** Holly Jarvis v. Anthony Wagner, et al.
- **Court:** District Court, N.D. New York
- **Decided:** January 27, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

HOLLY JARVIS,
Plaintiff,
V.
No. 5:25-CV-647
ANTHONY WAGNER, et al., (BKS/PJE)
Defendants.

APPEARANCES:
Holly Jarvis
Plaintiff pro se

PAUL J. EVANGELISTA
_|U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER"
|. In Forma Pauperis
Plaintiff pro se Holly Jarvis (“plaintiff’) commenced this action on May 21, 2025, by
filing a complaint.2 See Dkt. No. 1. Plaintiff also filed a motion seeking (1) “to compel the
release of any bodycam footage or police records related to the incidents described in the
| complaint”; (2) “injunctive relief preventing defendants from engaging in any continued
harassment with Plaintiff or her son”; and (3) an expedited schedule to adjudicate the

’ This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(d).
? The undersigned notes that plaintiff has filed nine other actions with this Court. See Jarvis v. City of
Syracuse Police Department, et al., 5:25-CV-0228 (LEK/MJK); Jarvis v. Funny Bone Comedy Club, et al.,
5:25-CV-0645 (LEK/MJK); Jarvis v. D’Angelo, et al., 5:25-CV-0648 (GTS/ML); Jarvis v. Duell, et al., 5:25-
CV-0843 (LEK/MJK); Jarvis v. Petricola, et al., 5:25-CV-1166 (ECC/DJS); Jarvis v. Knapp, et al., 5:25-CV-
1167 (MAD/MJk); Jarvis v. Glynn, et al., 5:25-CV-1168 (BKS/ML); Jarvis v. Citizen Review Board of the
City of Syracuse, 5:25-CV-1169 (AMN/PJE).

matter. Dkt. No. 4. In lieu of paying this Court's filing fee, plaintiff 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 she financially qualifies to proceed
IFP.? Pursuant to this review, the undersigned must now assess the merits of plaintiff's
complaint pursuant to 28 U.S.C. §§ 1915, 1915A.4
ll. Initial Review
A. Legal Standards
28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that .. . the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
_,|1915(e)(2)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly
maintain his complaint before permitting him to proceed further with his action.” Praileau
v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
m| (internal quotation marks and citation omitted). As the Second Circuit stated,
[tIhere are many cases in which we have said that a pro se
litigant is entitled to special solicitude, that a pro se litigant’s
submissions must be construed liberally, and that such
submissions must be read to raise the strongest arguments
3 Plaintiff is advised that although she has been granted IFP status, she is still required to pay any fees and
costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and witness
fees.
4 These requirements apply equally to non-prisoner pro se litigants. See N.D.N.Y. L.R. 72.3(d) (“Unless
the Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred
to a Magistrate Judge for the purpose of review under 28 U.S.C. §1915(e)(2) and 28 U.S.C. §1915A when
an application to proceed in forma pauperis is filed.”).

that they suggest. At the same time, our cases have also
indicated that we cannot read into pro se submissions claims
that are not consistent with the pro se litigant’s allegations, or
arguments that the submissions themselves do not suggest,
that we should not excuse frivolous or vexatious filings by pro
se litigants, and that pro se status does not exempt a party
from compliance with relevant rules of procedural and
substantive law. . . .
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation
marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded
district courts that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe
his pleadings liberally.”) (internal quotation marks and citations omitted). Thus, the Court
is not required to accept unsupported allegations that are devoid of sufficient facts or
claims. Although detailed allegations are not required at the pleading stage, the complaint
must still include enough facts to provide the defendants with notice of the claims against
them and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see also Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007).
Ultimately, the plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
tt
reasonable inference that the defendant is liable for the misconduct alleged.”).
“The [Second Circuit]’s ‘special solicitude’ for pro se pleadings has its limits,
because pro se pleadings still must comply with . . . the Federal Rules of Civil Procedure.”®
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec.

5 Hereafter, “Fed. R. Civ. P.”

13, 2019) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).© Specifically, Rule 8
provides that a pleading which sets forth a claim for relief shall contain, among other
things, “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Feb. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation
marks and citations omitted). Rule 8 also requires the pleading to include “a short and
plain statement of the grounds for the court’s jurisdiction ... and. □□□ demand for the
relief sought... .” Feb. R. Civ. P. 8(a). Although “[nJo technical form is required,” the
Federal Rules make clear that each allegation contained in the pleading “must be simple,

concise, and direct.” Feb. R. Civ. P. 8(d).
Further, Rule 10 provides in pertinent part that:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence—and each defense other than a denial—must be
stated in a separate count or defense.

R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]” Flores, 189
F.R.D. at 55 (internal quotation marks and citations omitted). A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of
defendants’ duty to shape a comprehensive defense and provides no meaningful basis

8 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff.

for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352,
355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the court has the power, on its own
initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for those cases in
which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its
true substance, if any, is well disguised.” /d. (citations omitted).

Ill. Discussion
A. Plaintiff's Complaint’
Plaintiff asserts that defendants have “engag[ed] in a pattern of harassment,
property damage, physical threats, and unlawful surveillance” of her “prior residence
“| located at 21 Lincoln Ave., Syracuse, NY.” Dkt. No. 1 at 1. Plaintiff contends that (1) “[o]n
multiple occasions throughout 2023, [djefendants engaged in harassing behavior,
including loud disturbances, verbal threats, and attempts to intimidate [her] and her son’;
(2) on an unspecified date, defendants “unlawfully entered [her] home, causing damage
and creating a hazardous environment by throwing snow and salt indoors”; (3) “Wagner
brandished a firearm in a threatening manner towards [her] son, William Kerr, resulting in
™!a protective order and a guilty plea’; and (4) “[djefendants installed unauthorized
surveillance cameras pointed directly at [her] front and side doors, capturing her and her
son without consent and making them feel unsafe and constantly watched in violation of

7 Plaintiff included two attachments with her complaint. See Dkt. Nos. 1-1, 1-2. These attachments have
also been reviewed in connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380
F.3d 57, 67 (2d Cir. 2004) (“A complaint is deemed to include any written instrument attached to it as an
exhibit, materials incorporated in it by reference, and documents that, although not incorporated by
reference, are integral to the complaint.”) (internal quotation marks and citations omitted).

their privacy.” Dkt. No. 1 at 1. Plaintiff also contends that “[dJespite numerous police
reports and complaints, the landlord [of her home] refused to intervene or provide
protection.” /d. at 2.
Plaintiff claims that she and her son have suffered “emotional distress, fear, and
property damage” and she seeks compensatory damages exceeding $25,000, punitive
a rst : : wb ocgs
damages, court costs and filing fees, “[i]njunctive relief prohibiting future harassment or
surveillance,” and “[a]ny other relief deemed just and proper by the Court.” Dkt. No. 1 at
1-2. Plaintiff also requests that her current home address not be added to “any and all
documents going to [djefendants as they have already threatened [her] and [her] sons
(sic) life [with] a gun and [she] had to get a protection order in [the] past.” Dkt. No. 1-1.
B. Analysis®

® The undersigned notes that plaintiff checked the box for “other civil rights” on the civil cover sheet. □□□□□
No. 1-2. However, plaintiff's complaint does not suggest that Wagner and Tanner violated her constitutional
rights, that she seeks to proceed pursuant to 42 U.S.C. § 1983, or that Wagner or Tanner are state actors,
acting under the color of state law or conspiring with state actors. See generally Dkt. No. 1. See Gerken
v. Gordon, No. 1:24-CV-435 (MAD/CFH), 2024 WL 4608307, at *11 (N.D.N.Y. Oct. 29, 2024), report and
recommendation adopted, No. 1:24-CV-435 (MAD/CFH), 2024 WL 5001402 (N.D.N.Y. Dec. 6, 2024)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)) (“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.”); Strong v. New York, No. 1:19-
CV-63 (MAD/CFH), 2019 WL 1763010, at *7 (N.D.N.Y. Apr. 22, 2019), report and recommendation
™) adopted, No. 1:19-CV-63 (MAD/CFH), 2019 WL 2723372 (N.D.N.Y. July 1, 2019) (quoting Adickes v. S. H.
Kress & Co., 398 U.S. 144, 152 (1970)) (“There is no indication in the complaint that [the defendant] was a
‘willful participant in joint activity with the State or its agents,’ as is required in order for the Court to find that
a private party has engaged in state action.”). Rather, the complaint makes clear that Wagner and Tanner
are private parties, acting alone, and their activities are not attributable to the state. See Gerken, 2024 WL
4608307, at*11 (quoting Yi Sun v. Sasiovsky, No. 1:19-CV-10858 (LTS), 2020 WL 6828666, at*7 (S.D.N.Y.
Aug. 6, 2020) (citing Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013)) (“Private parties generally
are not state actors and therefore are not usually liable under [§] 1983.”); Basile v. Connolly, 538 F. App’x
5, 7 (2d Cir. 2013) (summary order) (“[P]rivate individuals . . . cannot be sued under 42 U.S.C. § 1983
absent a plausible allegation that they acted under color of state law.”). Moreover, even if, arguendo,
plaintiff were able to amend to demonstrate that Wagner and Tanner are state actors or are participating in
a conspiracy with state actors and that their conduct violated a constitutional right, plaintiff's claims must
still fail, because, as discussed below, the Court lacks subject matter jurisdiction to initiate criminal
investigations or prosecutions, issue or enforce orders of protection, or direct a state court to do the same.
See infra at 7-9.

1. Subject Matter Jurisdiction®
Reading plaintiff's complaint liberally and affording her due solicitude, it appears
that plaintiff is asking the Court to criminally prosecute Wagner and Tanner for their
actions against her and her son, enforce a protective order a state court previously issued
against Wagner, or prosecute its alleged violation. See Dkt. No. 1 at 1-2; see also
Triestman, 470 F.3d at 475 (“This policy of liberally construing pro se submissions is
driven by the understanding that ‘[i]Jmplicit in the right of self-representation is an
obligation on the part of the court to make reasonable allowances to protect pro se
litigants from inadvertent forfeiture of important rights because of their lack of legal
training.) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Federal courts are courts of limited jurisdiction and may not preside over cases

absent subject matter jurisdiction. See Exxon Mobil Corp. v. Allapattah Services, Inc.,
545 U.S. 546, 552 (2005). Federal jurisdiction is only available when a “federal question”
is presented, 28 U.S.C. § 1331, or the plaintiff and all defendants are of diverse citizenship
and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. When a court
lacks subject matter jurisdiction, dismissal is mandatory. See Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006).
tri This Court has neither the jurisdiction to initiate the arrest or prosecution of any
citizen nor the ability to enforce, or otherwise impose consequences for, a violation of an
order of protection entered by a state court. See Leeke v. Timmerman, 454 U.S. 83, 86-
87 (1981); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (‘[A] private citizen lacks a

® additional to jurisdictional bars discussed herein, plaintiff's threadbare complaint fails to satisfy the
pleading requirements of Rule 8 and does not provide “fair notice of the claim[s] being asserted” against
Wagner and Tanner such that they would have an adequate opportunity to file an answer and “prepare an
adequate defense.” Flores, 189 F.R.D. at 55; Feb. R. Civ. P. 8(a)(2).

judicially cognizable interest in the prosecution or nonprosecution of another.”);
McFadden v. Ortiz, 5:12-CV-1244 (MAD/ATB), 2013 WL 1789593, at *3 (N.D.N.Y. Apr.
26, 2013) (“[T]here is no private right of action to enforce either state or federal criminal
statutes.”). “Neither Plaintiff nor the Court can direct prosecutors to initiate a criminal
proceeding against anyone because prosecutors possess discretionary authority to bring
“| criminal actions and they are ‘immune from control or interference by citizen or court
.... Colon v. Lopez, No. 1:23-CV-5771 (LTS), 2023 WL 5530698, at *2 (S.D.N.Y. Aug.
28, 2023) (quoting Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir.
1972)). To the extent plaintiff may be seeking this Court to direct a state court to issue a
new order of protection or enforce an existing order of protection on her behalf against
Wagner and Tanner, “this court cannot provide the relief he seeks because federal courts

cannot compel state-court action[.]” Todie-Reyes v. Orellana, No. 21-CV-10444 (LTS),
2022 WL 2819599, at *2 (S.D.N.Y. July 18, 2022) (citing Davis v. Lansing, 851 F.2d 72,
74 (2d Cir. 1988)).
Moreover, should plaintiff's complaint be interpreted as seeking this Court to enter
an order of protection against Wagner and Tanner, such request does not arise under
federal law and there is no underlying matter over which this Court has jurisdiction. See,
m| @-g., Rice v. Rice, 10-CV-2002, 2010 WL 2090088, at *3 (D. Minn. May 21, 2010) (finding
that petition for order of protection did not arise under federal law pursuant to 28 U.S.C.
§ 1331 and remanding to state court for lack of subject matter jurisdiction); see Araman
v. Real Est. Bd. of New York, No. 21-CV-8397 (RA), 2022 WL 1443320, at *4 (S.D.NLY.
May 6, 2022) (“Plaintiff does not have standing to seek criminal sanctions or an order of
protection from this Court.”); McCaffrey v. Gatekeeper USA, Inc., No. 14-CV-493 (VSB),

2023 WL 2945799, at *1 (S.D.N.Y. Apr. 14, 2023) (quoting Briglin v. Baker, No. 15-CV-
6162L, 2018 WL 4692459, at *8 (W.D.N.Y. Oct. 1, 2018) (“In fact, ‘it is far from clear that
federal courts have the authority to issue orders of protection.”)). As plaintiff has failed
to set forth any claim “arising under the Constitution, laws, or treaties of the United
States,” 28 U.S.C. § 1331, she fails to establish that the existence of federal question
jurisdiction.
Accordingly, to the extent that plaintiff seeks to have the Court initiate a criminal
investigation or criminal prosecution, arrest the defendants, issue an order of protection,
direct a state court to enter or otherwise enforce an order of protection issued by a state
court, the undersigned recommends dismissing that part of plaintiff's complaint be
dismissed without prejudice and without leave to amend for lack of subject matter

jurisdiction. See Gerken, 2024 WL 4608307, at *7 (citing Abadi v. City of New York, 22-
CV-1560, 2023 WL 3295949, at *3 n.3 (2d Cir. May 8, 2023) (summary order)) (“Because
the Court lacks subject matter jurisdiction . . . the amended complaint should be dismissed
without prejudice.”); Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017)
(“[A] complaint must be dismissed without prejudice where the dismissal is due to the
court's lack of subject matter jurisdiction[.]’)).
4. Diversity Jurisdiction
Plaintiff's complaint, liberally read, also seeks to proceed against defendants under
New York state law for property damage.'? See Dkt. No. 1 at 1. However, plaintiff fails

10 “In New York, a plaintiff can assert a tort claim for property damage.” Davis v. Horton, No. 23-CV-00885
(JPC) (VF), 2025 WL 539658, at *8 (S.D.N.Y. Jan. 27, 2025), report and recommendation adopted, No. 23
CIV. 885 (JPC) (VF), 2025 WL 522486 (S.D.N.Y. Feb. 18, 2025) (citing Lippes v. Atl. Bank, 69 A.D.2d 127,
140 (N.Y. App. Div. 1979) (“An action based upon an alleged injury to property is one sounding in tort.”)).
Under New York law, the statute of limitations for property damage claims in New York is three years and
the cause of action accrues from when the alleged damage becomes apparent. See N.Y. C.P.L.R. 214(4);
see also Russell v. Dunbar, 40 A.D.3d 952, 953 (2d Dep’t 2007) (first citing N.Y. C.P.L.R. 214(4), then

to demonstrate diversity jurisdiction. The undersigned observes that plaintiff is a citizen
of New York. See Dkt. No. 1 at 1; Dkt. No. 1-2 at 1. On plaintiff's request for service
from, she lists defendants’ address as 210 Lincoln Avenue, Syracuse, New York 13202.
See Dkt. No. 2-2. As such, all parties are residents of New York State. Plaintiff has,
therefore, failed to establish complete diversity of the parties. See Dix v. Peters, No. 5:19-
“| CV-1199 (GLS/ATB), 2020 WL 3792002, at *1 (N.D.N.Y. July 7, 2020) (quoting Herrick
Co., Inc. v. SCS Comme'ns, Inc., 251 F.3d 315, 322-23 (2d Cir. 2001)) (“The party seeking
to invoke diversity jurisdiction ‘bears the burden of demonstrating that the grounds for
diversity exist and that diversity is complete.””); Stabb v. Syracuse Police Dep't, No. 5:25-
CV-280 (ECC/PJE), 2025 WL 3005435, at *1 (N.D.N.Y. Oct. 7, 2025), report and
recommendation adopted, No. 5:25-CV-280 (ECC/PJE), 2025 WL 3003450 (N.D.N.Y.
Oct. 27, 2025) (citing Hamm v. United States, 483 F.3d 135 (2d Cir. 2007)) (“Even pro se
plaintiffs must establish that the Court has subject matter jurisdiction, either through
federal question jurisdiction, which occurs when a federal question is presented, 28
U.S.C. § 1331, or through diversity jurisdiction, which is when the plaintiff and all
defendants are of diverse citizenship and the amount involved is greater than $75,000,
28 U.S.C. § 1332.”); E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925,
m| 930 (2d Cir. 1998)) (Diversity jurisdiction requires that “all of the adverse parties in a suit

... be completely diverse with regard to citizenship.”); St. Paul Fire & Marine Ins. Co. v.
Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005) (“Diversity is not complete if any

quoting Alamio v. Town of Rockland, 302 A.D.2d 842 (2d Dep’t 2007)); Williams v. Dow Chem. Co., No. 01
CIV. 4307 (PKC), 2004 WL 1348932, at *3 (S.D.N.Y. June 16, 2004) (quoting Gianakakos v. Commodore
Home Systems, Inc., 285 A.D.2d 907 (3d Dep't 2001)) (“CPLR §[] 214(4) . . . respectively provide[s] that
‘an action to recover damages for injury to property’... must ‘be commenced within three years.’ The
three-year period applies to claims in both negligence and strict liability.”).
10

plaintiff is a citizen of the same state as any defendant.” (citation omitted)). Further,
plaintiff does not allege that the amount in controversy is $75,000.00 or greater; rather,
she states that she is seeking “compensatory damages exceeding $25,000,” without any
further specification. Dkt. No. 1 at 2. Regardless, as plaintiff has not demonstrated
complete diversity of citizenship — as she and defendants are all citizens of New York
"| State.
IV. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed without the Court granting
leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Romano v. Lisson, 711 F. App’x 17, 19 (2d Cir. 2017)
(summary order) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quotation
_,,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.” 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)).
Here, plaintiff has failed to demonstrate this Court’s subject matter jurisdiction,
through federal question jurisdiction. Plaintiff's claims seeking the Court initiate a criminal

m| investigation or criminal prosecution, arrest the defendants, issue an order or protection,
or otherwise enforce an order of protection issued by a state court are barred by the
Court's lack of subject matter jurisdiction. Similarly, plaintiff cannot establish diversity
jurisdiction as she and defendants are all citizens of the same state. As she cannot cure
the defects in an attempt at demonstrating either federal question jurisdiction or diversity
jurisdiction, it is recommended that this case be dismissed without prejudice and without

leave to amend for lack of subject matter jurisdiction.'1 See Edwards, 388 F. Supp. 3d at
144-45 (quoting Cuoco, 222 F.3d at 112).
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiffs application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is
RECOMMENDED, that plaintiff's complaint (dkt. no. 1) be DISMISSED without
prejudice and without leave to amend for lack of subject matter jurisdiction; ‘2
RECOMMENDED, that plaintiffs motion to compel discovery, for injunctive relief,
and for an expedited schedule (Dkt. No. 4) be DISMISSED as moot; and it is further
RECOMMENDED, that if the District Judge adopts this Report-Recommendation
_,|& Order, plaintiff be given thirty days from the filing date of the District Judge’s Order
adopting this Report-Recommendation and Order to file an amended complaint, and if
the plaintiff does not so file pursuant to that Decision & Order, the action may be closed
without need for further order of the Court, and if plaintiff does so file, the amended
complaint be noticed for substantive sufficiency review pursuant to 28 U.S.C. §
1915(e)(2)(B); and it is
tri ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on plaintiff in accordance with Local Rules.

™ The recommendation is without prejudice to plaintiff seeking to apply for an order of protection in the
appropriate state court or state-court review of any alleged violations of state-court orders of protection;
however, the undersigned reaches no conclusion as to the likelihood of success or the merits of such
ventures.
12 “A dismissal for lack of subject matter jurisdiction must be without prejudice, because without jurisdiction,
the district court lacks the power to adjudicate the merits of the case.” McKie v. Kornegay, No. 21-1943,
2022 WL 4241355, at *2 (2d Cir. Sept. 15, 2022) (summary order) (internal quotations omitted) (quoting
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016)).
12

IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which
to file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 6(a), 72.'5
Dated: January 27, 2026
Albany, New York
fem
Paul J. Evangelista
U.S. Magistrate Judge

"3 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See FED.R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
See id. § 6(a)(1)(c).
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11247014. Public record. Not legal advice.