Shaffer

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________________

WILLIAM E. SHAFFER, JR.,

Plaintiff,

v. 3:25-cv-01587

(AJB/TWD)

DR. PAUL TINSLEY and

GUTHRIE LOURDES MEDICAL CENTER,

Defendants.

_______________________________________________

APPEARANCES:

WILLIAM E. SHAFFER, JR.,

Plaintiff, pro se

326841

Broome County Correctional Facility

P.O. Box 2047

Binghamton, NY 13902

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION AND ORDER

I. INTRODUCTION

The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff

William E. Shaffer, Jr. (“Plaintiff), together with an application to proceed in forma pauperis

(“IFP”). Dkt. Nos. 1, 2. Plaintiff, who is incarcerated at Broome County Correctional Facility,

has not paid the filing fee for this action.

II. IFP APPLICATION

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.

1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,

incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently

pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate

accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.

2010)).1

Upon review, the Court finds Plaintiff has submitted a completed and signed IFP

application, which demonstrates economic need. Dkt. No. 2. Plaintiff has also filed the inmate

authorization form required in this District. Dkt. No. 3. Accordingly, Plaintiff’s IFP application

is granted.2

III. BACKGROUND

Plaintiff commenced this action utilizing the Court’s form complaint for civil rights

actions, identifying 42 U.S.C. § 1983 as the basis for his claims. See Dkt. No. 1 at 1. The

complaint lists two defendants: Guthrie Lourdes Medical Center and Dr. Paul Tinsely. Id. at 2-3.

Plaintiff alleges that, on an unspecified date, a “mass” on the right side of his neck was

removed. Id. at 3. Dr. Paul Tinsley “had it biopsied and it came back as Thyroid cancer.” Id.

Dr. Tinsley diagnosed Plaintiff with thyroid cancer and told Plaintiff this type of cancer “does

not spread, it stays in the thyroid.” Id. But “come to find out,” the “cancer had spread” and he is

1 Section 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a

showing of “imminent danger of serious physical injury,” a prisoner has filed three or more

actions or appeals that were subsequently dismissed as frivolous, malicious, or failing to state a

claim upon which relief may be granted. 28 U.S.C. § 1915(g). Based upon the Court’s review

of Plaintiff’s litigation history on the Federal Judiciary’s Public Access to Court Electronic

Records (“PACER”) Service, it does not appear that Plaintiff has accumulated three strikes for

purposes of 28 U.S.C. § 1915(g).

2 Plaintiff should note that although his IFP application has been granted, he will still be required

to pay fees that he may incur in this action, including copying and/or witness fees.

“stage three.” Id. Dr. Tatiana Fedorova told Plaintiff the cancer is “in [his] lymph nodes.” Id. at

5. Plaintiff asserts a single claim for being “wrongly diagnosed.” Id. He seeks $10 million in

damages. Id.

IV. STANDARD OF REVIEW

Section 1915 of Title 28 requires a district court to dismiss an in forma pauperis

complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be

granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 §

1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

The court must also dismiss a complaint, or portion thereof, when it lacks subject matter

jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.”).

While the law mandates dismissal on any of these grounds, the court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in

original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007); see also Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when

either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an

indisputably meritless legal theory.”).

Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil

Procedure. See, e.g., Cole v. Smrtic, No. 1:24-CV-00847 (MAD/CFH), 2024 WL 4870495, at *2

(N.D.N.Y. Nov. 21, 2024) (explaining, “special solicitude for pro se pleadings has its limits,

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

(internal quotations and citation omitted), report and recommendation adopted, 2025 WL

247901 (N.D.N.Y. Jan. 21, 2025). To survive dismissal for failure to state a claim, a complaint

must contain a short and plain statement of the claim showing that the pleader is entitled to relief.

Fed. R. Civ. P. 8(a)(2). This short and plain statement of the claim must be “plausible on its

face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim upon which relief may be granted, “the

court must accept the material facts alleged in the complaint as true and construe all reasonable

inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)

(citations omitted). However, “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.

V. DISCUSSION

A. Section 1983 Claims

Plaintiff brings this action under 42 U.S.C. § 1983, which provides in relevant part:

[e]very person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or causes to

be subjected, any citizen of the United States . . . to the deprivation

of any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured . . . .

28 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure

for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519

(2d Cir. 1993) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)); accord Jean-

Baptiste v. United States Dep’t of Just., No. 23-441, 2024 WL 1193062, at *1 (2d Cir. Mar. 20,

2024) (noting that Section 1983 does not provide an independent source of substantive rights).

To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured

by the Constitution or laws of the United States was violated, and (2) the right was violated by a

person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49

(1988). Private parties are therefore not generally liable under the statute. Sykes, 723 F.3d at

406 (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001));

see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States

Constitution regulates only the Government, not private parties.”).

Construing Plaintiff’s allegations to “raise the strongest arguments they suggest,”

McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v.

United States, 478 F.3d 489, 491 (2d Cir. 2007)), the complaint does not plausibly state a claim

under Section 1983.

To that end, the complaint is devoid of allegations plausibly suggesting the defendants,

Guthrie Lourdes Medical Center and Dr. Paul Tinsely, are state actors. See, e.g., White v. St.

Joseph’s Hosp., 369 F. App’x 225, 226 (2d Cir. 2010) (“[P]rivate actors and institutions, such as

the hospitals . . . named as defendants in [plaintiff’s] complaint, are generally not proper § 1983

defendants because they do not act under color of state law.”); Basile v. Connolly, 538 F. App’x

5, 7 (2d Cir. 2013) (explaining, “private individuals . . . cannot be sued under 42 U.S.C. § 1983

absent a plausible allegation that they acted under color of state law.”). The complaint is

similarly devoid of allegations plausibly suggesting these defendants were acting under color of

state law.3 “Since it is the duty of the plaintiff to allege state action on the part of the defendant

named in a complaint, a court may dismiss an action under 28 U.S.C. § 1915(e) where a plaintiff

fails to plead such a nexus.” Denes v. Glens Falls Hosp., No. 1:05 CV 0838 (GLS/DRH), 2005

WL 2033489, at *2 (N.D.N.Y. Aug. 17, 2005). Such is the case here.

In any event, Plaintiff claims he was “wrongly diagnosed” on an unspecified date. Dkt.

No. 1 at 5. Thus, the complaint is also devoid of allegations plausibly suggesting “a right

secured by the Constitution or laws of the United States was violated[.]” West, 487 U.S. 48-49.

At most, “Plaintiff’s potential claims for negligence and medical malpractice arise under state

law, not federal law.” Reyes v. New York Presbyterian Hosp., No. 20-CV-3046, 2020 WL

6161261, at *2 (E.D.N.Y. Oct. 21, 2020); Panchitkhaew v. Long Island Jewish Med. Ctr., No.

18-CV-4434, 2019 WL 1492780, at *3 (E.D.N.Y. Apr. 4, 2019) (noting that medical malpractice

and negligence are state law claims).

Accordingly, the undersigned recommends dismissal of Plaintiff’s Section 1983 claims

for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

B. State Law Claims

A district court may decline to exercise supplemental jurisdiction over state law claims

when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §

1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early

3 A private actor may satisfy the “under-color-of-state-law” element where: (1) “the entity acts

pursuant to the coercive power of the state or is controlled by the state”; (2) “the state provides

significant encouragement to the entity,” and “the entity is [either] a willful participant in joint

activity with the state or the entity’s functions are entwined with state policies”; or (3) “the entity

has been delegated a public function by the state.” Vaughn v. Phoenix House N.Y. Inc., 957 F.3d

141, 147 (2d Cir. 2020). “The activities of private hospitals and their officers typically do not

satisfy any of these tests.” Fisher v. Glens Falls Hosp., No. 1:25-CV-831 (AJB/DJS), 2025 WL

2324128, at *2 (N.D.N.Y. July 15, 2025), report and recommendation adopted, 2025 WL

2323523 (N.D.N.Y. Aug. 12, 2025).

stages and only state-law claims remain, the federal court should decline the exercise of

jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).

Here, having recommended dismissal of Plaintiff’s Section 1983 claims, the undersigned

also recommends that the District Court decline to exercise its supplemental jurisdiction over any

state law claims Plaintiff may be asserting.

C. Leave to Amend

“Generally leave to amend should be freely given, and a pro se litigant in particular

should be afforded every reasonable opportunity to demonstrate that he has a valid claim.”

Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (cleaned up). Mindful of Plaintiff’s pro se

status, the undersigned recommends Plaintiff’s complaint be dismissed without prejudice and

with leave to amend.4

VI. CONCLUSION

WHEREFORE, for the reasons stated herein, it is hereby

ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED. The Clerk shall

provide the Superintendent of the facility, designated by Plaintiff as his current location, with a

copy of Plaintiff’s inmate authorization (Dkt. No. 3) and notify the official that this action has

4 The Court advises Plaintiff that should he be permitted to amend his complaint, any amended

pleading he submits to this Court must comply with Rules 8 and 10 of the Federal Rules of Civil

Procedure. Any amended complaint must set forth all of the claims he intends to assert against

the defendants and must demonstrate that a case or controversy exists between the Plaintiff and

the defendants which Plaintiff has a legal right to pursue and over which this Court has

jurisdiction. Any amended complaint must set forth the facts that give rise to the claims,

including the dates, times, and places of the alleged underlying acts. Plaintiff is cautioned that

no portion of his prior complaint shall be incorporated into any amended complaint by reference.

If Plaintiff is alleging the defendants violated a law, he should specifically refer to such law. Of

course, Plaintiff may also pursue his claims in state court if appropriate.

been filed and that Plaintiff is required to pay the Northern District of New York the statutory

filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further

ORDERED that the Clerk shall provide a copy of Plaintiff's inmate authorization (Dkt.

No. 3) to the Financial Deputy of the Clerk’s Office; and it is further

RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITHOUT

PREJUDICE AND WITH LEAVE TO AMEND; and it is further

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

Plaintiff in accordance with the Local Rules and provide Plaintiff with copies of the unpublished

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

curiam).

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

WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)

(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72.

IT IS SO ORDERED.

Dated: January 23, 2026

Syracuse, New York /

Theérése Wiley Dancks

United States Magistrate Judge

> If you are proceeding pro se and are served with this Report-Recommendation and Order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date the Report-Recommendation and Order was mailed to you to serve

and file objections. Fed. R. Civ. P. 6(d). Ifthe 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. Fed. R. Civ. P. 6(a)(1)(C).

2010 WL 5185047 York State Department of Correctional Services, commenced

Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his

United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in

S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane

green [sic ]” and that defendant Bernstein “did not want

David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009

v. (Docket Item 2) (“Compl.”), at 3).

BERNSTEIN, MD, Defendant.

The action was originally commenced against two defendants

No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed

| as to Dr. Finkelstein because the complaint contained no

Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order

dated February 18, 2010 (Docket Item 9)).

REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr.

Bernstein—filed the current motion. Plaintiff failed to submit

1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an

Order advising plaintiff that if he wished to oppose the

the Honorable Leonard B. Sand, United States

motion, he must submit his opposition by September 15, 2010

District Judge, granted plaintiff's application for in

and that after that date I would consider the motion fully

forma pauperis status based on plaintiff's ex parte

submitted and ripe for decision (Order dated August 20, 2010

submission (Docket Item 1). Although the present

(Docket Item 15)). The only submission plaintiff has made

application seeking to revoke plaintiff's in forma

in response to my Order is a multi-part form issued by the

pauperis status is non-dispositive, I address it by

New York State Department of Correctional Services entitled

way of a report and recommendation to eliminate

“Disbursement or Refund Request.”2 By this form, plaintiff

any appearance of a conflict between the decision

appears to request that the New York State Department of

of a district judge and that of a magistrate judge.

Correctional Services pay the filing fee for this action. The

form is marked “Denied.”

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers,

States District Judge, and it has not been docketed by the Clerk of the

Court. The form will be docketed at the time this

Report and Recommendation is issued.

I. Introduction

By notice of motion dated March 4, 2010 (Docket Item 11),

III. Analysis

defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke

28 U.S.C. § 1915 permits an indigent litigant to commence

plaintiff's in forma pauperis (“IFP”) status on the ground that

an action in a federal court without prepayment of the filing

plaintiff has previously had at least three Section 1983 actions

fee that would ordinarily be charged. Although an indigent,

dismissed as frivolous, malicious or failing to state a claim

incarcerated individual need not prepay the filing fee at the

upon which relief could be granted, and has not shown that he

time at the time of filing, he must subsequently pay the fee,

is in imminent danger of serious physical injury. Defendant

to the extent he is able to do so, through periodic withdrawals

further seeks an order directing that the action be dismissed

from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.

unless plaintiff pays the full filing fee within thirty (30) days.

City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent

For the reasons set forth below, I respectfully recommend that

abuse of the judicial system by inmates, paragraph (g) of

defendant's motion be granted.

this provision denies incarcerated individuals the right to

proceed without prepayment of the filing fee if they have

II. Facts repeatedly filed meritless actions, unless such an individual

Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David

curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In

judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that

Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN,

assigned to him by the New York State Department

of Correctional Services (“DOCS”) is 94–B–0694

*2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records

a civil action or appeal a judgment submitted by plaintiff in connection with his

in a civil action or proceeding under application for IFP status indicate that DIN 94–

this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition,

3 or more prior occasions, while the DOCS form described in footnote two bears

incarcerated or detained in any facility, the docket number of this action, but is signed in

brought an action or appeal in a court the name of Dennis Nelson and was sent in an

of the United States that was dismissed envelope identifying the sender as Dennis Nelson.

on the grounds that it is frivolous, A subsequent action has been filed in this Court

malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis

which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same

prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has

serious physical injury. submitted nothing to controvert the assertion in

defendant's papers that David Cash and Dennis

Nelson are the same person. In light of all these

28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis

Nelson are both names used by plaintiff.

If an inmate plaintiff seeks to avoid prepayment of the filing

fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),

there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff

asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care

F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable

Thomas J. McAvoy, United States District Judge,

Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate

in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and

The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had

plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had

occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1,

*7.

• In 2005, plaintiff commenced an action in the United

States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)

York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),

Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status

WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three

the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under

District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent

Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215

United States Magistrate Judge, that plaintiff had at *1–*2.

brought three or more prior actions that had been

• Finally, in Nelson v. Chang, No. 08–CV–1261

dismissed for failure to state a claim and that plaintiff's

(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,

IFP status should, therefore, be revoked. 2007 WL

2009), the Honorable Kiyo A. Matsumoto, United

cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding

the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical

and could not proceed IFP in the absence of a injury.5

demonstration of an imminent threat of serious

physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his

*3 As defendant candidly admits, there is one case in which

wound and its symptoms in detail, and I have

plaintiff's leg infection was found to support a finding of an

no doubt that the wound is serious. However, in

imminent threat of serious physical injury sufficient to come

granting summary judgment dismissing an action

within the exception to Section 1915(g). Nelson v. Scoggy,

last year based on the same allegations, Judge

No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2

Mordue of the Northern District found that there

(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment

was no genuine issue of fact that plaintiff's own

was subsequently granted for defendants in that case, and

conduct was responsible for the ineffectiveness of

the complaint was dismissed. Judge Mordue concluded that

the treatment he was provided:

there was no genuine issue of fact that plaintiff had received

Furthermore, to the extent that Nelson's medical

adequate medical care for his leg wound and that the failure

treatment was delayed, much of the delay

of the leg to heal was the result of plaintiff's own acts of

was due to his own refusal to cooperate with

self-mutilation and interference with the treatment provided.

medical staff and his self-mutilations. Nelson's

Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009

actions to thwart the medical treatment of his

WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4

wound cannot be construed as interference or

indifference by anyone else.... [T]he medical

4 Although the form complaint utilized by plaintiff treatment Nelson received complied with

expressly asks about prior actions involving the constitutional guarantees as it was appropriate,

same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own

action and expressly denied the existence of any actions.

other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.

at 6). Given plaintiff's total failure to respond to the

pending motion and his failure to even deny that

In light of the foregoing, there can be no reasonable dispute

he is actively thwarting treatment of his wound, it

that plaintiff has exceeded the three “strikes” allowed by

would be sheer speculation for me to conclude that

Section 1915(g) and that he cannot, therefore, proceed here

he is in imminent danger of a serious injury as a

without prepaying the filing fee unless he demonstrates

result of defendant's conduct.

an imminent threat of serious physical injury. Plaintiff has

declined to attempt to make this showing in response to

defendant's motion, and the only suggestion in the record IV. Conclusion

of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff

complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being

[a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that

5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be

speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further

in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays

v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion.

White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);

see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)

V. OBJECTIONS

(imminent danger exception to Section 1915(g) requires

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of

“specific fact allegations of ongoing serious physical injury,

the Federal Rules of Civil Procedure, the parties shall have

or of a pattern of misconduct evidencing the likelihood

fourteen (14) days from receipt of this Report to file written

of imminent serious physical injury”). Given the plaintiff's

with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d

Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,

500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–

undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–

York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983).

objections must be directed to Judge Jones. FAILURE TO

OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT

All Citations

IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE

APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2024 WL 4870495 Cir. 2004).

Only the Westlaw citation is currently available. 2 Plaintiff is advised that, although he has been

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

granted IFP status, he is still required to pay all fees

Matthew H. COLE, Plaintiff, and costs he may incur in this action, including,

but not limited to, copying fees, transcript fees, and

v.

witness fees.

Honorable Michael W. SMRTIC, et al. Defendants.

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

II. Initial Review

|

Signed November 21, 2024

A. Legal Standards

Attorneys and Law Firms

Section 1915 of Title 28 of the United States Code directs

MATTHEW H. COLE, 271 Market Street, Amsterdam, New that, when a plaintiff seeks to proceed IFP, “the court shall

York 12010, Plaintiff pro se. 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

REPORT-RECOMMENDATION & ORDER 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

CHRISTIAN F. HUMMEL, United States Magistrate Judge determine that a plaintiff may properly maintain his complaint

before permitting him to proceed with his action.

I. In Forma Pauperis

Where, as here, the plaintiff proceeds pro se, “the court

*1 Plaintiff pro se Matthew H. Cole (“plaintiff”) must construe his submissions liberally and interpret them

commenced this action (No. 1:24-CV-00623) on May 6, to raise the strongest arguments that they suggest.” Kirkland

2024, by filing a complaint. See Dkt. No. 1 (“Compl.”). v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)

On September 26, 2024, plaintiff submitted what the Court (per curiam) (internal quotation marks omitted); see also

construes to be a supplement to the complaint.1 See Dkt. No. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As

7. In lieu of paying this Court's filing fees, he submitted an the Second Circuit stated,

application for leave to proceed in forma pauperis (“IFP”).

There are many cases in which we have said that a pro

See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP

se litigant is entitled to “special solicitude,” that a pro se

application and determines that he financially qualifies to

litigant's submissions must be construed “liberally,” and

proceed IFP.2 Thus, the Court proceeds to its review of the

that such submissions must be read to raise the strongest

complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also arguments that they “suggest[.]” At the same time, our

submitted for the Court's review a Pro Se Application for cases have also indicated that we cannot read into pro se

Permission to File Electronically and a Motion to Appoint submissions claims that are not “consistent” with the pro

Counsel. See Dkt. Nos. 4, 5. se litigant's allegations, or arguments that the submissions

themselves do not “suggest,” that we should not “excuse

1 The submission includes a letter addressed to frivolous or vexatious filings by pro se litigants,” and that

District Judge D'Agostino, titled, “Requirements pro se status “does not exempt a party from compliance

for Cases Removed From State Court,” Dkt. No. with relevant rules of procedural and substantive law[.]”

7; a receipt from Montgomery County Clerk dated

December 8, 2022; and a “Notice of Claim” with *2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

the caption of Cole v. County of Montgomery, 477 (2d Cir. 2006) (citations and footnote omitted); see also

dated December 7, 2022. See Dkt. No. 7. The Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92

undersigned has reviewed this submission in (2d Cir. 2008).

pleadings has its limits, because pro se pleadings still must (internal quotation marks and citations omitted). A complaint

comply with ... the Federal Rules of Civil Procedure [(‘Fed. that fails to comply with the pleading requirements “presents

R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668 far too a heavy burden in terms of a defendant's duty to

(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) shape a comprehensive defense and provides no meaningful

(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). basis for the Court to assess the sufficiency of their claims.”

Pleading guidelines are provided in the Federal Rules of Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As

Civil Procedure. Specifically, Rule 8 requires the pleading to the Second Circuit has held, “[w]hen a complaint does not

include: comply with the requirement that it be short and plain, the

court has the power, on its own initiative ... to dismiss the

(1) a short and plain statement of the grounds for the court's complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.

jurisdiction ...; 1988) (citations omitted). However, “[d]ismissal ... is usually

reserved for those cases in which the complaint is so confused,

(2) a short and plain statement of the claim showing that

ambiguous, vague, or otherwise unintelligible that its true

the pleader is entitled to relief; and

substance, if any, is well disguised.” Id. (citations omitted).

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

*3 This Court also has an overarching obligation to

FED. R. CIV. P. 8(a). Although “[n]o technical form is determine that a claim is not legally frivolous before

required,” the Federal Rules make clear that each allegation permitting a pro se plaintiff's complaint to proceed. See, e.g.,

contained in the pleading “must be simple, concise, and Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d

direct.” Id. at 8(d). “The purpose ... is to give fair notice 362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where

of the claim being asserted so as to permit the adverse ‘the claim is based on an indisputably meritless legal theory

party the opportunity to file a responsive answer, prepare an [such as] when either the claim lacks an arguable basis in

adequate defense and determine whether the doctrine of res law, or a dispositive defense clearly exists on the face of the

judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-

54 (N.D.N.Y. 1999) (internal quotation marks and citations MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)3

omitted). Allegations that “are so vague as to fail to give the (quoting Livingston v. Adirondack Beverage Co., 141 F.3d

defendants adequate notice of the claims against them” are 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490

subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal

(2d Cir. 2009) (summary order). theory ... or factual contentions lack an arguable basis.”).

Further, Fed. R. Civ. P. 10 provides: 3 Any unpublished cases cited within this Report-

Recommendation & Order have been provided to

plaintiff.

[a] party must state its claims or

defenses in numbered paragraphs,

each limited as far as practicable to B. Complaint

a single set of circumstances. A later

pleading may refer by number to Plaintiff's civil cover sheet indicates that he seeks to bring this

a paragraph in an earlier pleading. action pursuant to “Title U.S.C. 18 Section 241, Conspiracy

If doing so would promote clarity, Against Rights & Title U.S.C. 18 Section 242 Deprivation

each claim founded on a separate of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil

transaction or occurrence – and each cover sheet further provides that his cause of action involves,

defense other than a denial – must be “Violation of Due process, Speedy Trial Rights, Ineffective

stated in a separate count or defense. Assistance of Counsel. I feel I am being targeted for being

black and gay.” Id.

FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] Plaintiff's form complaint checks the box indicating that

he seeks to bring this case pursuant to 42 U.S.C. § 1983.

complaint asking in “what federal constitutional or statutory

right(s) do you claim is/are being violated by state or local *4 Petitioner seeks reinstatement

officials,” plaintiff responds, “Due Process, 30.30 Speedy of driving priveldges [sic], and 10

Trial Violation, Ineffective Assistance of counsel.”4 Id. In million dollars for damages caused by

response to a question asking him to explain “how each conflict of interest, deliberate violation

defendant acted under color of state or local law,” plaintiff of Due Process, Speedy Trial rights,

states “Each judge deliberately denied me due process, and Ineffective assistance of counsel,

refused to look into the paperwork to see that i was improperly malice, Brady Violation, Petitioner

denied my speedy trial rights. It was a tean [sic] effort. claims deliberate misconduct and

The ADA/Special Prosecutor withheld potential exculpatory malice in Montgomery County Court,

material which was usd [sic] against me. All mentioned the Saratoga Disrict Attorney's Office,

actions were done and upheld even after I showed federal law and the Supreme Court Appellate

with supportive case law as a pro se litigant.” Id. Division Third department. ** This is

subject to change if an attorney agrees

4 Although plaintiff generally references ineffective to represent.

assistance of counsel, Compl. at 4, he does not

name any attorney who may have represented

him. Any claims against the prosecutor would Compl. at 5. Although he typed his name, plaintiff does not

not be considered ineffective assistance of counsel sign the complaint where a signature is indicated. See id. at 8.

because Mr. Maxwell, as the prosecutor, was not

plaintiff's attorney. Plaintiff provides in his supplement that he “removed this

action to district court asserting jurisdiction pursuant to 42

Plaintiff provides that his “case is still on appeakl [sic] in

U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states

Appellate Court Third Department. I feel they are guilty,

that he removed this case from Montgomery County Supreme

or part of what I call a scandal. I went to them from the

Court. See id. He states that he seeks or sought the removal

very start with a complaint to the grievance committee,

because he was told he was “not guarantee counsel” at the

where they denied any wrongdoing. It must be ok to violate

state, but that “[i]n Federal Court, there is that option, pending

Constitutional rights there. This is from March 2019 to

qualification, and I am told, if a lawyer agrees to take it, then

present” Id.

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

In response to a question that asks plaintiff to state the facts

Plaintiff states, “[t]he ineffective assistance of counsel and

underlying his claims, plaintiff states, “Please see attached

The County Court are a matter already mentioned in the

Article 78 that is attached. It was dismissed being in the wrong

appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my

court, but is on point.” Id. at 4. Plaintiff did not provide the

conviction, I allege judicial and prosecutorial misconduct,

Court with any such attachment and has not submitted any

and ineffective assistance of counsel × 4. That is why I am

Article 78 materials. See Compl., Dkt. No. 7.

pro se. I had to protect myself when appointed counsel did

not. It also went through a couple judges which is why they

In response to the form complaint's question asking about

are mentioned in the preliminary complaint/paperwork, and

any injuries suffered as a result of the conduct he complains

why I mention bias.” Id. Plaintiff states he can “prove each

of, plaintiff states, “Sever [sic] depression over 20 years,

irreperable [sic] harm, defamation of charcter [sic] by

thing I saw not just with my words, but with transcripts5 from

arguments not legally allowed to give. Loss of income, the County Court, and the Adult Drug Court.” Id. Plaintiff

inability to gain and keep employment, mental trauma, refers to being drug free for four and a half years and having

instilled disbelief in justice in the legal system, familial academic success in college. Id. at 3. He states that he wishes

traumam [sic] due to my legal battles.” Id. Indicating the relief this Court to hear his case because he believes he will not

sought, plaintiff states “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

(AMN).” Id. or sentence invalid, a § 1983 plaintiff must prove that

the conviction or sentence has been reversed on direct

5 Plaintiff did not provide any transcripts. 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

C. Discussion6 of habeas corpus.” Id. at 486-87. The court further held

that “[a] claim for damages bearing that relationship to

6 As a courtesy, the Court has provided plaintiff with a conviction or sentence that has not been so invalidated

is not cognizable under § 1983.” Id. at 487 (emphasis in

copies of any unpublished cases cited within this

original).

Report-Recommendation & Order.

[ ]

1. Rule 8 Thus, under Heck and its progeny, if a conviction has not

been invalidated previously, a Ҥ 1983 action is barred ...

As a threshold issue, plaintiff's complaint fails to meet the

no matter the target of the prisoner's suit ... if success in

requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He

that action would necessarily demonstrate the invalidity

does not provide a short and plain statement of the claim

of confinement or its duration.” Wilkinson v. Dotson, 544

demonstrating why he is entitled to relief. Although he

U.S. 74, 81-82 (2005) (emphasis in original).

makes general references to both an Article 78 proceeding

and a criminal proceeding and unexplained references to Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024

“Due Process, 30.30 Speedy Trial Violation, Ineffective of WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-

Counsel,” he does not provide factual support or context. recommendation adopted sub nom. Ali v. Dow, No. 8:24-

Thus, his complaint does not provide “fair notice” to CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)

defendants of the claims against them. See FED. R. CIV. P. (quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),

8(a)(2). 2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and

recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,

2023 WL 7538211 (2d Cir. Nov. 14, 2023)).

2. Heck v. Humphrey

Plaintiff has failed to demonstrate that any criminal charge(s),

However, there are several substantive concerns that further conviction, or sentence has been “reversed on direct appeal,

lead the undersigned to recommend dismissal. First, in expunged by executive order, declared invalid by a state

referencing to “Due Process, 30.30 Speedy Trial Violation, tribunal authorized to make such determination, or called into

Ineffective of Counsel” and explicitly referencing a criminal question by a federal court's issuance of a writ of habeas

conviction, it is clear that plaintiff is attempting to seek corpus.” Zografidis, 2022 WL 21756775, at *7. Although

some kind of review of a criminal proceeding or conviction. plaintiff's complaint wants for detail, the undersigned can

See Compl. at 3. Plaintiff also accuses all named judges clearly determine that plaintiff seeks review of his criminal

of denying him due process and contends that an unnamed proceedings, conviction, and/or sentence. The claims plaintiff

“ADA/Special Prosecutor withheld potential exculpatory seeks to pursue relate to allegations that he was denied

material which was usd [sic] against me.” Compl. at 4. due process, denied speedy trial rights, and experienced

Plaintiff also references a conviction. See Dkt. No. 7 at 4. ineffective assistance of counsel. Accordingly, plaintiff's

Such claims would be barred by Heck v. Humphrey. claims are barred by Heck unless and until he can demonstrate

favorable termination of his criminal conviction.7

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

forth: 7 The undersigned recognizes that claims that are

In Heck, the Supreme Court held that in order for a determined to be barred by Heck are dismissed

plaintiff “to recover damages for allegedly unconstitutional without prejudice. However, the undersigned has

conviction or imprisonment, or for other harm caused by recommended dismissal with prejudice because

immune from relief. Accordingly, the undersigned curiam)). “Judicial immunity has been created for the public

is recommending dismissal of the claims based on interest in having judges who are ‘at liberty to exercise

these immunities, rather than a Heck dismissal. The their functions with independence and without fear of

undersigned has included the Heck review for sake consequences.’ ” Id. (quoting Huminski v. Corsones, 396

of completeness. 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-

3. Immunities CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.

Mar. 7, 2013) (explaining that the plaintiff may not bring

Plaintiff names as defendants several defendants who are

action against a judge for actions taken in his judicial capacity,

immune from suit. Insofar as plaintiff names Hon. Michael

even when the actions violated the ADA).

W. Smrtic, Interim Montgomery County Judge and Tatiana N.

Coffinger, “County/Family/Surrogate's Court Judge”8 such

“Judicial immunity is immunity from suit, not just immunity

claims would be barred by judicial immunity. from the assessment of damages.” Zavalidroga, 2017 WL

8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,

8 Although plaintiff provides no facts regarding 526 (1985)). “The only two circumstances in which judicial

any family court proceedings, that he named a immunity does not apply is when he or she takes action

family court judge and makes general reference ‘outside’ his or her judicial capacity and when the judge takes

to that he seeks review over actions taken by action that, although judicial in nature, is taken ‘in absence

a family court judge. Even if plaintiff were to of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).

amend his complaint to provide facts about any “In determining whether or not a judge acted in the clear

possible family court proceedings and details absence of all jurisdiction, the judge's jurisdiction is ‘to be

about any alleged violations of his rights that he construed broadly, and the asserted immunity will only be

believes he faced in that Court, if plaintiff seeks overcome when the judge clearly lacks jurisdiction over the

this Court's review of an order of the family subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,

court, such review would be barred by Rooker- 163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.

Feldman, and if plaintiff seeks this Court's review Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).

or intervention of a currently pending/ongoing “Whether a judge acted in a judicial capacity depends on

Family Court proceeding, such review would be the nature of the act [complained of] itself, i.e., whether it

barred by Younger. See Porter v. Nasci, No. 5:24- is a function normally performed by a judge, and [on] the

CV-0033 (GTS/TWD), 2024 WL 1142144, at expectations of the parties, i.e., whether they dealt with the

*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), judge in his judicial capacity.” Ceparano, 404 F. App'x at 539

report and recommendation adopted, 2024 WL (internal quotation marks and citation omitted). “Further, if

3158645 (N.D.N.Y. June 25, 2024) (“Under the the judge is performing in his judicial capacity,” he “ ‘will not

Rooker-Feldman doctrine, a federal district court be deprived of immunity because the action he took was in

lacks authority to review a final state court order error, was done maliciously, or was in excess of his authority;

or judgment where a litigant seeks relief that rather, he will be subject to liability only when he has acted

invites the federal district court to reject or overturn in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.

such a final state court order or judgment.”); see App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362

also Diamond “D” Constr. Corp. v. McGowan, (1978)). “Judges are not, however, absolutely ‘immune from

282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal liability for nonjudicial actions, i.e., actions not taken in the

courts [must] abstain from taking jurisdiction over judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209

federal constitutional claims that involve or call (2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).

into question ongoing state proceedings.”).

Thus, as plaintiff names the judicial defendants in relation to

*6 “With minor exceptions, judges are entitled to absolute

actions or omissions that they took in their roles as judges,

immunity for actions relating to the exercise of their judicial

their actions are protected by absolute judicial immunity.

functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/

To the extent plaintiff names Hon. Felix Catena, “Retired

by absolute judicial immunity as a judge's retirement, “does Accordingly, absolute immunity extends to functions such

not impact [his or] her immunity for acts taken in [his or] as “deciding whether to bring charges and presenting a case

her official capacity before her retirement.” McCray v. Lewis, to a grand jury or a court, along with the tasks generally

No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2 considered adjunct to those functions, such as witness

(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to preparation, witness selection, and issuing subpoenas.”

sue the judges their official capacities, the suit is barred by the Simon v. City of New York, 727 F.3d 167, 171 (2d

Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp. Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see

3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment also Flagler, 663 F.3d at 547 (explaining, “the Supreme

shields judges from suit to the extent that they are sued in their Court has found prosecutors absolutely immune from

official capacities.”). suit for alleged misconduct during a probable cause

hearing, in initiating a prosecution, and in presenting

*7 In addition, plaintiff also references, exclusively in his the State's case ... [but] withheld absolute immunity for

“relief” section of the form complaint, “the Supreme Court conduct unrelated to advocacy, such as giving legal advice,

Appellate Division, Third Department” when stating that he holding a press conference, or acting as a complaining

experienced “deliberate misconduct and malice.” Compl. at witness.”). “[O]nce a court determines that challenged

7. He does not name this Court as a defendant anywhere in conduct involves a function covered by absolute immunity,

the complaint. However, even if plaintiff were to have named the actor is shielded from liability for damages regardless

the Appellate Division, Third Department as a defendant, of the wrongfulness of his motive or the degree of injury

such defendant would also need to be dismissed based on caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503

Eleventh Amendment immunity as the Appellate Division “is (2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,

merely an agency or arm of New York State.” Benyi v. New 199-200 (1985)).

York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at

Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024

*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation

WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report

adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.

and recommendation adopted, No. 5:24-CV-573, 2024 WL

Apr. 13, 2021) (citation omitted). Accordingly, to the extent

3548760 (N.D.N.Y. July 26, 2024).

a liberal reading of the complaint may suggest that plaintiff

seeks to name the Appellate Division as a defendant, such

Plaintiff appears to suggest that Mr. Maxwell “withheld

claims are barred by Eleventh Amendment immunity. See

potentially exculpatory material” that was used against

Compl.

him. Compl. at 4. Beyond the Heck barriers already

discussed, even if plaintiff could amend to provide greater

Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.

detail, absolute immunity would extent to even this alleged

Maxwell, Esq., Assistant District Attorney, in addition to the

misconduct as such allegations clearly fall within the scope of

Heck issues noted above, he would be protected by absolute

prosecutorial immunity. Accordingly, it is recommended that

prosecutorial immunity. As this Court has recently reiterated,

any claims against ADA Samuel V. Maxwell be dismissed

Prosecutors enjoy “absolute immunity from § 1983 liability for absolute prosecutorial immunity. “Furthermore, because

for those prosecutorial activities ‘intimately associated the District Attorney's prosecutorial immunity is substantive

with the judicial phase of the criminal process.’ ” Barr v. and not something that can be corrected by a better pleading,

Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler I recommend that the dismissal be with prejudice.” Phillips

v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5

encompasses “virtually all acts, regardless of motivation, (N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222

associated with [the prosecutor's] function as an advocate.” F.3d 99, 223 (2d Cir. 2000)).9

Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.

1995) (internal quotations and citation omitted). Absolute 9 Plaintiff appears to characterize his submissions as

immunity applies when a prosecutor's conduct, acting as an a purported removal to federal court or suggests

advocate during the judicial phase of the criminal process, that he seeks to remove his case from Montgomery

“involves the exercise of discretion.” Flagler v. Trainor, County Court to this Court. See Dkt. No. 7

663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher, (citing 28 U.S.C. § 1441). However, in addition

not demonstrated that any proceeding related to not contend that he made any efforts to obtain

this complaint has been properly removed to, or counsel on his own, show proof of any attorneys

is subject to removal to, this Court. See, e.g., he contacted. See Terminate Control Corp v.

28 U.S.C. § 1446. Indeed, plaintiff's submissions Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.

appear to indicate that plaintiff is the plaintiff in the No. 5.

County Court action. See id. § 1446(a). ORDERED, that the Clerk serve this Report-

Recommendation & Order on plaintiff in accordance with the

Local Rules.

III. Conclusion

*8 It is ORDERED, that plaintiff's in forma pauperis IT IS SO ORDERED.

application (dkt. no. 2) be GRANTED; and it is

Pursuant to 28 U.S.C. § 636(b)(1), parties have

RECOMMENDED, that plaintiff's section 1983 claims

FOURTEEN (14) days within which to file written

against Honorable Michael W. Smrtic; Tatiana N. Coffinger,

objections to the foregoing report. Such objections shall be

County/Family/Surrogate's Court Judge; and Felix Catena,

filed with the Clerk of the Court. FAILURE TO OBJECT

Retired Administrative Law Judge (Dkt. Nos. 1, 7) be

TO THIS REPORT WITHIN FOURTEEN (14) DAYS

DISMISSED WITH PREJUDICE as follows: (1) claims

WILL PRECLUDE APPELLATE REVIEW. Roldan v.

brought against them in their personal/individual capacities

Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y

for judicial immunity, and (2) claims brought against them in

of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see

their official capacities for Eleventh Amendment immunity;

and it is further

also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.11

RECOMMENDED, that plaintiff's section 1983 claims 11 If you are proceeding pro se and are served with

against Assistant District Attorney Samuel V. Maxwell (Dkt. this Report-Recommendation and Order by mail,

Nos. 1, 7) be DISMISSED WITH PREJUDICE due to three (3) additional days will be added to the

absolute prosecutorial immunity; and it is further fourteen (14) day period, meaning that you have

seventeen (17) days from the date the Report-

RECOMMENDED, that, to the extent a liberal reading Recommendation and Order was mailed to you to

of the complaint may suggest that plaintiff seeks to name serve and file objections. FED. R. CIV. P. 6(d).

the Appellate Division, Third Department, as a defendant If the last day of that prescribed period falls on

(Dkt. Nos. 1, 7), such claims be DISMISSED WITH a Saturday, Sunday, or legal holiday, then the

PREJUDICE as barred by Eleventh Amendment immunity, deadline is extended until the end of the next day

and it is that is not a Saturday, Sunday, or legal holiday. Id.

§ 6(a)(1)(c).

RECOMMENDED, that plaintiff's pro se motion for

permission to file electronically (dkt. no. 4) and motion to All Citations

appoint counsel10 (dkt. no. 5) be DISMISSED AS MOOT

based on the above recommendations, and it is Slip Copy, 2024 WL 4870495

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2024 WL 1193062 frame him for violating New York's vehicle registration law.

Only the Westlaw citation is currently available. He also claimed that the FBI instructed the New York Police

United States Court of Appeals, Second Circuit. Department to deny his application for a gun license, violating

his Second Amendment rights. The district court dismissed

Harold JEAN-BAPTISTE, Plaintiff-Appellant, his claims against all defendants for failure to properly serve,

v. dismissed his Second Amendment claim for lack of standing,

UNITED STATES DEPARTMENT OF JUSTICE, and concluded that his claims were without merit in any

Merrick B. Garland, Federal Bureau of Investigation, event. Jean-Baptiste timely appealed. We assume the parties’

familiarity with the remaining facts, the procedural history,

Christopher Wray, Director of the Federal Bureau of

and the issues on appeal, to which we refer only as necessary

Investigations, in his official capacity, City of New York,

to explain our decision to affirm.

Mayor Eric L. Adams, in his official capacity, Police

Commissioner Keechant Sewell, in his official capacity, As an initial matter, Jean-Baptiste's appellate brief does not

Corporation Counsel of the City of New York, Office of address the dismissal of his Second Amendment claim. While

the Attorney General of the State of New York, Damian pro se briefs are liberally construed, see McLeod v. Jewish

Williams, United States Attorney, Defendants-Appellees. Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017), they

still must provide “a clear statement of the issues on appeal,”

23-441 Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). Jean-

| Baptiste's brief fails to do so, and we therefore consider his

March 20, 2024 Second Amendment claim abandoned. See Gerstenbluth v.

Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir.

Appeal from a judgment of the United States District Court

2013).

for the Southern District of New York (Broderick, J.).

UPON DUE CONSIDERATION, IT IS HEREBY Moreover, in his brief, Jean-Baptiste argues only that the

ORDERED, ADJUDGED, AND DECREED that the defendants waived proper service by appearing in the suit,

judgment of the district court is AFFIRMED. which he alleges showed that they received the summons and

complaint. But as the district court explained, actual notice

Attorneys and Law Firms does not cure improper service. See Martin v. N.Y. State Dep't

of Mental Hygiene, 588 F.2d 371, 373 (2d Cir. 1978) (“A

FOR PLAINTIFF-APPELLANT: Harold Jean-Baptiste, pro showing that the defendant has had actual notice of the lawsuit

se, Rosedale, NY. is not sufficient to bar a motion to dismiss[.]”); see also

United States v. Thompson, 921 F.3d 82, 87 (2d Cir. 2019)

FOR CITY DEFENDANTS-APPELLEES: Melanie T. West,

(same, under New York law). Similarly, while Jean-Baptiste

Lauren L. O'Brien, for Hon. Sylvia O. Hinds-Radix,

contends that he served the government entities by mail, the

Corporation Counsel of the City of New York, New York, NY.

district court observed that he did not do so in compliance

FOR FEDERAL DEFENDANTS-APPELLEES: Brandon H. with N.Y. C.P.L.R. § 312-a(a), a finding he does not challenge.

Cowart, Christopher Connolly, for Damian Williams, United Because he raises no other challenge to the improper service

States Attorney for the Southern District of New York, New issue in his appellate brief, we may affirm on that basis alone.

York, NY. See LoSacco v. City of Middletown, 71 F. 3d 88, 92–93 (2d

Cir. 1995).

PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY,

ALISON J. NATHAN, Circuit Judges. In any case, we may also affirm on the basis that Jean-

Baptiste's non-Second-Amendment claims are without merit.

We review a dismissal for failure to state a claim de novo,

SUMMARY ORDER “accepting as true all of the complaint's well-pleaded facts.”

Washington v. Barr, 925 F.3d 109, 113 (2d Cir. 2019). Here,

*1 In the district court, pro se litigant Harold Jean- Jean-Baptiste did not plead sufficient facts to state a valid

Baptiste alleged that the Federal Bureau of Investigation Fourth Amendment claim premised on the alleged monitoring

suggesting that any conduct was motivated by unlawful Finally, Jean-Baptiste has not shown that the district court

discrimination or unconstitutional conduct, and neither the was biased against him or denied him access to the courts

federal statutes he cited, nor the Ninth Amendment, provides by dismissing his claims. An unfavorable ruling by itself is

not grounds for a claim of bias, and nothing indicates that

an independent source of substantive rights. See United Bhd.

Jean-Baptiste's access to the courts was obstructed or impeded

of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott,

in any way. See Liteky v. United States, 510 U.S. 540, 555

463 U.S. 825, 833 (1983) (addressing § 1985(3)); Phillips v.

(1994).

City of New York, 775 F.3d 538, 544 (2d Cir. 2015) (Ninth

Amendment); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.

We have considered Jean-Baptiste's remaining arguments and

1999) (§ 1983).

find them to be without merit. Accordingly, we AFFIRM the

judgment of the district court.

*2 Jean-Baptiste also relied on various federal criminal

statutes, but none are enforceable by a private citizen. See

Schlosser v. Kwak, 16 F.4th 1078, 1083 (2d Cir. 2021); see

All Citations

also Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 511

(2d Cir. 1994). Not Reported in Fed. Rptr., 2024 WL 1193062

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2005 WL 2033489 may be granted. 28 U.S.C. § 1915(e)(2)(B).

Only the Westlaw citation is currently available.

United States District Court,

(A) Application to Proceed In Forma Pauperis.

N.D. New York.

In the present case, the Court has determined that Denes'

Steven M. DENES, Plaintiff, financial status qualifies him to file or “commence” this action

without prepaying in full the $250.00 filing fee. However,

v.

plaintiff did not file an inmate authorization indicating his

GLENS FALLS HOSPITAL, Defendant.

consent to pay the current filing fee. Thus, he may not be

No. 1:05 CV 0838 GLS DRH. permitted to proceed in forma pauperis until such time as a

| current authorization is filed with the Court. Thus, at this time,

Aug. 17, 2005. plaintiff's application to proceed in forma pauperis will be

denied as incomplete.

Attorneys and Law Firms

Steven Denes, Washington Correctional Facility, Comstock, (B) Plaintiff's Claim.

NY, Plaintiff, pro se. Turning to the second inquiry, 28 U.S.C. § 1915(e), as

amended, directs that the Court:

DECISION and ORDER (2) [S]hall dismiss the case at any time if the court determines

that -

SHARPE, J. * * *

I. Background. (B) the action ... (i) is frivolous or malicious; (ii) fails to state a

*1 Presently before this Court is an application to proceed claim on which relief may be granted; or (iii) seeks monetary

in forma pauperis and civil rights complaint filed by Steven relief against a defendant who is immune from such relief.

Denes (“plaintiff” or “Denes”). Denes has not paid any fee

relating to this action.

28 U.S.C. § 1915(e)(2)(B).

For the reasons stated below, plaintiff's complaint is dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the Thus, there is a responsibility on the Court to determine that a

Local Rules of Practice of this District. complaint may be properly maintained in the District before

it may permit a plaintiff to proceed with an action. Id.

In his pro se complaint Denes claims he was treated at

Glens Falls Hospital in 2002. The physicians who treated him

removed rocks and glass from his hand after an automobile (1) Jurisdiction of the Court.

accident. Plaintiff alleges that it has been over two years, and The subject matter jurisdiction of the federal district courts is

there are still bumps in his hand. Plaintiff seeks monetary limited and is set forth generally in 28 U.S.C. §§ 1331 and

damages. For a complete statement of plaintiff's claims, 1332. Under these statutes, federal jurisdiction is available

reference is made to the entire complaint filed herein. only when a federal question is presented or when the

parties are of diverse citizenship and the amount in question

exceeds $75,000. It is well established that the Court may

II. Discussion. raise the question of jurisdiction sua sponte, and that where

Consideration of whether a pro se plaintiff should be jurisdiction is lacking, “dismissal is mandatory.” United

permitted to proceed in forma pauperis is a two-step process. Food & Commercial Workers Union, Local 919, AFL-CIO

First, the Court must determine whether the plaintiff may v. Centermark Properties Meriden Square, Inc., 30 F.3d 298,

proceed with the action without prepaying, in full, the $250.00 301 (2d Cir.1994); see also Fed.R.Civ.P. 12(h)(3).

filing fee. The Court must then consider whether the causes

of action stated in the complaint are, inter alia, frivolous or

citizenship between the parties and the matter in controversy (dismissing as frivolous pro se complaint where plaintiff

exceeds the sum or value of $75,000. See 28 U.S.C. § 1332(a). failed to allege state action on part of defendants) (citations

The party seeking to invoke diversity jurisdiction must omitted); see also DeMatteis v. Eastman Kodak Co., 511

establish that complete diversity existed at the time the action F.2d 306, 311 (2d Cir.) (affirming dismissal of complaint

was commenced. Advani Enterprises, Inc. v. Underwriters where plaintiff failed to include allegations of state action

at Lloyds, 140 F.3d 157, 160 (2d Cir.1998). In this action in complaint), modified on other grounds, 520 F.2d 409 (2d

plaintiff does not allege, nor does it appear from the pleadings, Cir.1975); Lawson v. Abrams, No. CV-84-4325, 1988 WL

that there is complete diversity between the parties to this 49244, *4 (E.D.N.Y. May 6, 1988).

action.

Furthermore, even if the defendant were found to be a

state actor, Denes' claim is grounded in medical malpractice.

(b) Federal Question. Negligence by physicians, even amounting to malpractice,

Plaintiff brought this action pursuant to 42 U.S.C. § 1983. does not become a constitutional violation merely because the

Section 1983 establishes a cause of action for “the deprivation plaintiff is an inmate; claims of malpractice or disagreement

of any rights, privileges, or immunities secured by the with treatment are not actionable under § 1983. Murphy v.

Constitution and laws” of the United States. German v. Grabo, No. 94-CV-1684 1998 WL 166840 (N.D.N.Y., Apr 9,

Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 1998) (Pooler, D.J.).

(S.D.N.Y.1995) (citing Wilder v. Virginia Hosp. Ass'n, 496

U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote *3 Since plaintiff's complaint, as presented to this Court,

omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 fails to state a claim upon which relief may be granted, it must

WL 236245, *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J .) (§ therefore be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)

1983 “is the vehicle by which individuals may seek redress and Rule 5.4(a) of the Local Rules of Practice of this District.

for alleged violations of their constitutional rights.”) (citation

omitted). WHEREFORE, it is hereby

However, parties may not be held liable under this section ORDERED, that leave to commence this action in forma

unless it can be established that they have acted under the pauperis is denied as incomplete as plaintiff has not submitted

color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d an inmate authorization indicating his consent to the filing fee

625 (2d Cir.1994) (noting state action requirement under § which is currently $250.00, and it is further

1983); Wise v. Battistoni, 92-Civ-4288, 1992 WL 380914, *1

(S.D.N.Y. Dec. 10, 1992) (same) (citations omitted). State ORDERED, that this action is dismissed pursuant to 28

action is an essential element of any § 1983 claim. See Gentile U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the Local Rules of

v. Republic Tobacco Co., No. 95-CV-1500, 1995 WL 743719, Practice of this District, and it is further

*2 (N.D.N.Y. Dec. 6, 1995) (Pooler, D.J.) (citing Velaire v.

City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y.1994) ORDERED, that the Clerk serve a copy this Order on Denes

(McAvoy, C.J.) (citation omitted)). by regular mail.

In the present case, the plaintiff's complaint contains no IT IS SO ORDERED.

allegations that defendant Glens Falls Hospital is a state actor.

Since it is the duty of the plaintiff to allege state action on

the part of the defendant named in a complaint, a court may All Citations

dismiss an action under 28 U.S.C. § 1915(e) where a plaintiff Not Reported in F.Supp.2d, 2005 WL 2033489

fails to plead such a nexus. See, e.g., Carollo-Gardner v.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2020 WL 6161261 to state a claim to relief that is plausible on its face.” Bell

Only the Westlaw citation is currently available. Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim

NOT FOR PUBLICATION will be considered plausible on its face “when the plaintiff

United States District Court, E.D. New York. pleads factual content that allows the court to draw reasonable

inference that the defendant is liable for the misconduct

Maria Esther REYES, Plaintiff, alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

v.

NEW YORK PRESBYTERIAN HOSPITAL; A court must construe a pro se litigant's pleadings liberally,

Dr. Manmee K. Malik MD; Dr. Jerry Chang; Erickson v. Pardus, 551 U.S. 89, 94 (2007); Harris v. Mills,

572 F.3d 66, 72 (2d Cir. 2009), and a pro se complaint

and Dr. Akkamma Ravi MD, Defendants.

should not be dismissed without granting the plaintiff leave to

20-cv-3046 (KAM)(ST) amend “at least once when a liberal reading of the complaint

| gives any indication that a valid claim might be stated.”

Signed 10/21/2020 Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d

Cir. 1999) (internal quotation marks and citations omitted).

Attorneys and Law Firms Nevertheless, “a pro se plaintiff must still comply with the

relevant rules of procedural and substantive law, including

Maria Esther Reyes, Jamaica, NY, pro se. establishing that the court has subject matter jurisdiction over

the action.” Wilber v. U.S. Postal Serv., No. 10-CV-3346

(ARR), 2010 WL 3036754, at *1 (E.D.N.Y. Aug. 2, 2010)

MEMORANDUM & ORDER (internal quotation marks and citations omitted).

MATSUMOTO, United States District Judge:

*1 Pro se plaintiff Maria Esther Reyes filed this in DISCUSSION

forma pauperis action under this court's diversity jurisdiction

seeking damages against defendants for medical malpractice. A plaintiff seeking to bring a lawsuit in federal court must

Plaintiff's request to proceed in forma pauperis pursuant to 28 establish that the court has subject matter jurisdiction over

U.S.C. § 1915 is granted. The action is dismissed for lack of the action. “[F]ailure of subject matter jurisdiction is not

subject matter jurisdiction with leave to replead as set forth waivable and may be raised at any time by a party or by

below. the court sua sponte. If subject matter jurisdiction is lacking,

the action must be dismissed.” Lyndonville Sav. Bank &

Trust Co. v. Lussier, 211 F.3d 697, 700-701 (2d Cir. 2000);

see also Henderson ex rel. Henderson v. Shinseki, 562 U.S.

BACKGROUND 428, 434 (2011) (“[F]ederal courts have an independent

According to the complaint, the truth of which is assumed for obligation to ensure that they do not exceed the scope of

the purposes of this Memorandum and Order, Plaintiff seeks their jurisdiction, and therefore they must raise and decide

damages for the alleged medical malpractice of the defendant jurisdictional questions that the parties either overlook or

doctors and New York Presbyterian Hospital in the 2017-2018 elect not to press.”). Federal subject matter jurisdiction is

treatment of her breast cancer. (ECF No. 1, Complaint.) available only when a “federal question” is presented, 28

U.S.C. § 1331, or when the plaintiff and defendant are of

diverse citizenship and the amount in controversy exceeds

$75,000.00. 28 U.S.C. § 1332. The party asserting jurisdiction

STANDARD OF REVIEW bears the burden of proof. DiTolla v. Doral Dental IPA of N.Y.,

469 F.3d 271, 275 (2d Cir. 2006); White v. Abney, No. 17-

Under 28 U.S. C. § 1915(e)(2)(B), a district court shall

CV-4286 (MKB), 2019 WL 1298452, at *2 (E.D.N.Y. Mar.

dismiss an in forma pauperis action where it is satisfied that

21, 2019) (the party seeking to assert diversity jurisdiction

the action “(i) is frivolous or malicious; (ii) fails to state a

under 28 U.S.C. § 1332 bears the burden of demonstrating

claim on which relief may be granted; or (iii) seeks monetary

evidence”) (citations omitted). Chestnut v. Wells Fargo Bank, N.A., No. 1 l-CV-5369, 2012

WL 601785, at *3 (E.D.N.Y. Feb. 22, 2012).

*2 According to the complaint, the basis for subject matter

jurisdiction is diversity of the parties. (Compl. 4.) It is

axiomatic that, for diversity jurisdiction to be available, all CONCLUSION

of the adverse parties in a suit must be completely diverse

with regard to citizenship. See E.R. Squibb & Sons, Inc. v. For the foregoing reasons, the complaint filed in forma

Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir. 1998); pauperis is dismissed without prejudice for lack of subject

France v. Thermo Funding Co., LLC, No. 13 Civ. 712(SAS), matter jurisdiction. Fed. R. Civ. P. 12(h)(3). However,

2013 WL 5996148, at *2 (S.D.N.Y. Nov. 12, 2013) (“Federal in light of plaintiff's pro se status, the plaintiff shall be

jurisdiction may not be asserted on the basis of diversity afforded thirty days leave to file an Amended Complaint.

unless ‘the citizenship of each plaintiff is diverse from the The Amended Complaint shall be submitted to the Court

citizenship of each defendant.’ ”) (quoting Caterpillar Inc. v. within thirty days of the date of this Order. The Amended

Lewis, 519 U.S. 61, 68 (1996)). Plaintiff is a resident of New Complaint shall completely replace, not supplement, the

York. Although plaintiff has not provided any information original complaint. No summons shall issue at this time and

about the citizenship of the defendants (Compl. 4), she all further proceedings are stayed for thirty days for Plaintiff

provides New York mailing addresses for all four of the to comply with this Order. If the plaintiff fails to comply with

defendants. (Id. 2-3.) Because plaintiff does not allege that the this Order within the time allowed, an order and judgment

parties are diverse, the court lacks diversity jurisdiction over dismissing this action without prejudice shall enter.

plaintiff's claims.

Once submitted, the Amended Complaint will be reviewed

The court has considered whether it may exercise its federal for compliance with this Order and for sufficiency under Fed.

question jurisdiction over the claims in this complaint and R. Civ. P. 8, 12 and 28 U.S.C. § 1915(e)(2)(B). The Court

finds that it cannot. Plaintiff's potential claims for negligence certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

and medical malpractice arise under state law, not federal from this Order would not be taken in good faith and therefore

law. See, e.g., Obunugafor v. Borchert, 01-CV-3125, 2001 in forma pauperis status is denied for purpose of an appeal.

WL 1255929, at *2 (S.D.N.Y. Oct. 19, 2001) (holding that Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

plaintiff's claims for medical neglect and failure to diagnose

amounted to a claim of negligence or malpractice under

SO ORDERED.

state law and did not raise a federal question). Plaintiff

has not alleged that her medical care was covered under All Citations

any federal program or provision that would confer subject

matter jurisdiction over this action. Even allowing the pro se Not Reported in Fed. Supp., 2020 WL 6161261

complaint a liberal reading, there is a total absence of facts

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2019 WL 1492780 Plaintiff, a self-described fifty-eight-year-old

Only the Westlaw citation is currently available. “underrepresented minority from Thailand,” alleges that she

United States District Court, E.D. New York. “has been living her life miserably, painfully, and [has]

endless health issues” due to the “medical negligence” of

Vimon PANCHITKHAEW, Plaintiff, the defendants. (Id. at 7-8.) According to the complaint,

v. plaintiff had “extensive surgery” at the Medical Center to treat

LONG ISLAND JEWISH MEDICAL “buccal squamous cell carcinoma invading the mandible,”

CENTER, Dr. Dev Kamdar, Dr. Armen but she then “developed squamous cell carcinoma on the

left side of her mouth.” (Id. at 8-9.) Plaintiff alleges that

Kasabien, Dr. Frank G. Douglas, Defendants.

she was “admitted to the operating room” for “resection,”

18-CV-4434(JFB)(AKT) but instead, defendants “performed a partial maxillectomy

| that unnecessarily went all the way to the retromolar trigone,

Signed 04/04/2019 and significant soft tissues.” (Id. at 9.) Plaintiff claims that,

“[a]s a result of this improvised, unplanned surgery, [she]

Attorneys and Law Firms permanently suffocated an ‘[o]ral [i]ncompetence.’ ” (Id.)

As a result, plaintiff alleges claims of “negligence - medical

Vimon Panchitkhaew, Levittown, NY, pro se. malpractice.” (Id. at 11.)

ORDER II. Application to Proceed In Forma Pauperis

Upon review of plaintiff's declaration in support of her

Joseph F. Bianco, United States District Judge application to proceed in forma pauperis, the Court

determines that plaintiff's financial status qualifies her to

*1 On August 6, 2018, pro se plaintiff Vimon Panchitkhaew

commence this action without prepayment of the filing fees.

(“plaintiff”) filed an in forma pauperis complaint against

See 28 U.S.C. § 1915(a)(1). Therefore, plaintiff's request to

Long Island Jewish Medical Center (the “Medical Center”),

proceed in forma pauperis is granted.

Dr. Dev Kamdar (“Dr. Kamdar”), Dr. Armen Kasabian (“Dr.

Kasabian”), and Dr. Frank G. Douglas (“Dr. Douglas” and

collectively, “defendants”). (ECF No. 1.) Accompanying the III. Application of 28 U.S.C. § 1915

complaint is an application to proceed in forma pauperis. Section 1915 of Title 28 requires a district court to dismiss

(ECF No. 2.) For the reasons that follow, plaintiff's an in forma pauperis complaint if the action is frivolous

application to proceed in forma pauperis is granted, and or malicious, fails to state a claim on which relief may be

the complaint is dismissed without prejudice pursuant to 28 granted, or seeks monetary relief against a defendant who is

U.S.C. § 1915(e)(2)(B)(ii) and Fed. R. Civ. P. 12(h)(3). immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-

(iii). The Court is required to dismiss the action as soon as it

makes such a determination. See id.

DISCUSSION

*2 It is axiomatic that pro se complaints are held to less

I. The Complaint stringent standards than pleadings drafted by attorneys, and

Plaintiff's brief complaint is submitted on the Court's general the Court is required to read the plaintiff's pro se complaint

complaint form. Although plaintiff checked the box to allege liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing

that this Court's federal question subject matter jurisdiction Estelle v. Gamble, 429 U.S. 97, 106 (1976) ); Chavis v.

is invoked, in the space on the form complaint that calls for Chappius, 618 F.3d 162, 170 (2d Cir. 2010); and to construe

the federal constitutional provision or federal statute that is it “ ‘to raise the strongest arguments’ ” suggested. Chavis,

at issue, plaintiff alleges “28:1131, 28:1332, NYS: other tort 618 F.3d at 170 (quoting Harris v. City of N.Y., 607 F.3d

(negligence).” (Compl. ¶ II. A.) Plaintiff also alleges that she, 18, 24 (2d Cir. 2010) ). Moreover, at the pleadings stage of

and each of the defendants, are citizens of New York State (id. the proceeding, the Court must assume the truth of “all well-

¶ 2. B. 1-2), and that the amount in controversy is 40 million pleaded, nonconclusory factual allegations” in the complaint.

556 U.S. 662 (2009) ). drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980),

pro se litigants must establish subject matter jurisdiction,

However, a complaint must plead sufficient facts to “state see, e.g., Rene v. Citibank N.A., 32 F. Supp. 2d 539, 541-42

a claim to relief that is plausible on its face.” Bell Atl. (E.D.N.Y. 1999).

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that B. Subject Matter Jurisdiction Analysis

the defendant is liable for the misconduct alleged.” Iqbal, *3 Applying the rules regarding federal district court subject

556 U.S. at 679 (citations omitted). The plausibility standard matter jurisdiction to this case, it is clear that this Court

requires “more than a sheer possibility that defendant lacks subject matter jurisdiction to adjudicate plaintiff's

has acted unlawfully.” Id. at 678. While “detailed factual claims. Although plaintiff seeks to invoke this Court's federal

allegations” are not required, “[a] pleading that offers ‘labels question jurisdiction, she does not allege, or even mention,

and conclusions’ or ‘a formulaic recitation of the elements any federal law, treaty, or constitutional provision in her

of a cause of action will not do.’ ” Id. (quoting Twombly, complaint other than the subject matter jurisdiction statutes.

550 U.S. at 555). Plaintiff's factual allegations must also be Even construing the pro se complaint liberally, the Court

sufficient to give the defendant “fair notice of what the ... cannot discern a non-frivolous federal claim such that this

claim is and the grounds upon which it rests,” Twombly, 550 Court's federal question subject matter jurisdiction pursuant

U.S. at 555 (internal quotation marks and citation omitted), to 28 U.S.C. § 1331 may be invoked. Rather, plaintiff alleges

and must show that the court has subject matter jurisdiction, that she seeks to pursue state law tort claims of negligence

see Fed. R. Civ. P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., and medical malpractice. See Perpetual Sec., Inc. v. Tang, 290

526 U.S. 574, 583 (1999). F.3d 132, 137 (2d Cir. 2002) (“When deciding whether federal

question jurisdiction exists, we must proceed prudently and

make pragmatic distinctions between those allegations, if any,

A. Legal Standard for Subject Matter Jurisdiction that raise substantial questions and those that do not.” (citing

As a threshold matter, the Court must determine whether it Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S.

has subject matter jurisdiction to adjudicate plaintiff's claims. 1, 26 (1983) ) ).

“Federal courts must determine that they have jurisdiction

before proceeding to the merits.” Lance v. Coffman, 549 Further, diversity subject matter jurisdiction is not established

U.S. 437, 439 (2007). Notwithstanding the liberal pleading pursuant to 28 U.S.C. § 1332, because plaintiff alleges that all

standard afforded pro se litigants, federal courts are courts of of the parties to the case are citizens of New York. Because

limited jurisdiction and may not preside over cases if they lack diversity of citizenship is lacking, the requirements of 28

subject matter jurisdiction. Lyndonville Sav. Bank & Tr. Co. v. U.S.C. § 1332 are not met. In the absence of a basis to support

Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). Lack of subject this Court's subject matter jurisdiction, plaintiff's complaint

matter jurisdiction cannot be waived, and may be raised at must be dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii); Fed.

any time by a party or by the Court sua sponte. Id. If subject R. Civ P. 12 (h)(3). However, plaintiff's claims are dismissed

matter jurisdiction is lacking, the action must be dismissed. without prejudice and she may pursue any valid claims she

Fed. R. Civ. P. 12(h)(3); Lyndonville Sav. Bank & Tr. Co., 211 may have against the defendants in state court.

F.3d at 700-01.

The basic statutory grants of subject matter jurisdiction are IV. Leave to Amend

set forth in 28 U.S.C. §§ 1331 and 1332. Arbaugh v. Y & H In light of the pleading deficiencies set forth above, the

Corp., 546 U.S. 500, 513 (2006). Section 1331 provides that Court has considered whether plaintiff should be given an

federal district courts “shall have original jurisdiction of all opportunity to re-plead. Leave to amend should be freely

civil actions arising under the Constitution, laws, or treaties of granted when justice so requires. Fed. R. Civ. P. 15(a)(2).

the United States.” 28 U.S.C. § 1331. Section 1332 provides “This relaxed standard applies with particular force to pro

that federal district court subject matter jurisdiction may be se litigants.” Pangburn v. Culbertson, 200 F.3d 65, 70 (2d

established where there is a diversity of citizenship between Cir. 1999). The Second Circuit has emphasized that a “court

the parties, and the amount in controversy exceeds the sum should not dismiss [a pro se complaint] without granting leave

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citations proceed in forma pauperis is granted, and her complaint is

dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)

and internal quotation marks omitted); see also Chavis, 618

(2)(B) (ii) and Federal Rule of Civil Procedure 12(h)(3). The

F.3d at 170. Nevertheless, “[l]eave to amend, though liberally

Clerk of the Court is directed to close this case.

granted, may properly be denied for: ‘undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that

cure deficiencies by amendments previously allowed, undue

any appeal from this Order would not be taken in good faith

prejudice to the opposing party by virtue of allowance of the

and therefore, in forma pauperis status is denied for the

amendment, futility of amendment, etc.’ ” Ruotolo v. City of

purpose of any appeal. See Coppedge v. United States, 369

N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v.

U.S. 438, 444-45 (1962).

Davis, 371 U.S. 178, 182 (1962) ); see also Burch v. Pioneer

Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008).

SO ORDERED.

Here, the lack of subject matter jurisdiction cannot be

remedied by amendment. Accordingly, the Court declines to All Citations

grant plaintiff leave to file an amended complaint.

Not Reported in Fed. Supp., 2019 WL 1492780

CONCLUSION

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2025 WL 2324128 treatment. Id. at p. 6.

Only the Westlaw citation is currently available.

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

II. SUFFICIENCY OF THE COMPLAINT

Curtis Dijon FISHER, Plaintiff,

v.

GLENS FALLS HOSPITAL, Glens A. Governing Legal Standard

Falls Hospital CEO/President, and Glens 28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to

Falls Police Department, Defendants. proceed in forma pauperis, “(2) ... the court shall dismiss

the case at any time if the court determines that – ... (B)

1:25-CV-831 (AJB/DJS)

the action ... (i) is frivolous or malicious; (ii) fails to state a

|

claim on which relief may be granted; or (iii) seeks monetary

Signed July 15, 2025

relief against a defendant who is immune from such relief.” 28

Attorneys and Law Firms

U.S.C. § 1915(e)(2)(B).1 Thus, even if a plaintiff meets the

financial criteria to commence an action in forma pauperis, it

CURTIS DIJON FISHER, Plaintiff, Pro Se, 21085, Warren is the court's responsibility to determine whether the plaintiff

County Correctional Facility, 1400 State Route 9, Lake may properly maintain the complaint that he filed in this

George, New York 12845. District before the court may permit the plaintiff to proceed

with this action in forma pauperis. See id.

REPORT-RECOMMENDATION and ORDER 1 To determine whether an action is frivolous, a court

must look to see whether the complaint “lacks an

DANIEL J. STEWART, United States Magistrate Judge

arguable basis either in law or in fact.” Neitzke v.

*1 The Clerk has forwarded for review what has been Williams, 490 U.S. 319, 325 (1989).

docketed as a civil complaint filed by Plaintiff. Dkt. No. 1, Likewise, under 28 U.S.C. § 1915A, a court must review

Compl. Plaintiff has not paid the filing fee, but has submitted any “complaint in a civil action in which a prisoner seeks

an application to proceed in forma pauperis (“IFP”), Dkt. No. redress from a governmental entity or officer or employee of

2, which the Court has granted. a governmental entity” and must “identify cognizable claims

or dismiss the complaint, or any portion of the complaint,

if the complaint ... is frivolous, malicious, or fails to state a

I. FACTUAL ALLEGATIONS claim upon which relief may be granted; or ... seeks monetary

relief from a defendant who is immune from such relief.” 28

The Complaint is brought pursuant to 42 U.S.C. § 1983, U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116

alleging violation of Plaintiff's constitutional rights. Compl. (2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,

at p. 3. Specifically, Plaintiff alleges violation of his rights 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A

under the First, Fourth, Sixth, Eighth, Tenth, and Fourteenth are available to evaluate pro se prisoner complaints).

Amendments. Id. at p. 6. He also appears to be asserting a

state law claim for medical malpractice. Id. at p. 2. In reviewing a pro se complaint, the court has a duty to show

liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d

Plaintiff alleges that in July 2023 he suffered gunshot wounds. 605, 606 (2d Cir. 1990) (per curiam), and should exercise

Id. at p. 6. Instead of immediately providing medical care, the “extreme caution ... in ordering sua sponte dismissal of a

Complaint alleges that detectives with the Glens Falls Police pro se complaint before the adverse party has been served

Department improperly questioned him about the incident for and both parties (but particularly the plaintiff) have had an

hours. Id. Plaintiff claims that he suffered injury at Glens opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,

Falls Hospital when his wound was merely stitched without 41 (2d Cir. 1983) (internal citations omitted). Therefore, a

removing bullet fragments. Id. at pp. 1 & 6. He claims he had court should not dismiss a complaint if the plaintiff has stated

“A claim has facial plausibility when the plaintiff pleads rights under § 1983 is thus required to show state action.”

factual content that allows the court to draw the reasonable Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.

inference that the defendant is liable for the misconduct 2003). “State action requires both the exercise of some right

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing or privilege created by the State and the involvement of a

Bell Atl. Corp. v. Twombly, 550 U.S. at 556). person who may fairly be said to be a state actor.” Meadows v.

United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (quoting

*2 Although a court should construe the factual allegations Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d at 186)

in the light most favorable to the plaintiff, “the tenet that (internal quotations and alterations omitted). Plaintiff has

a court must accept as true all of the allegations contained failed to make any allegations establishing that either of these

in a complaint is inapplicable to legal conclusions.” Id. Defendants are state actors.

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. “In general, a private hospital will not be considered a state

(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here actor.” Rule v. Braiman, 2024 WL 4042135, at *13 (N.D.N.Y.

the well-pleaded facts do not permit the court to infer more Sept. 4, 2024) (internal quotation omitted). While private

than the mere possibility of misconduct, the complaint has parties, such as the Hospital and its President generally are

alleged - but it has not show[n] - that the pleader is entitled not state actors, their conduct can be attributed to the state for

to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). section 1983 purposes if “(1) the State compelled the conduct,

Rule 8 of the Federal Rules of Civil Procedure “demands (2) there is a sufficiently close nexus between the State and

more than an unadorned, the-defendant-unlawfully-harmed- the private conduct, or (3) the private conduct consisted of

me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell activity that has traditionally been the exclusive prerogative of

Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading the State.” Hogan v. A.O. Fox Mem'l Hosp., 346 F. App'x 627,

that only “tenders naked assertions devoid of further factual 629 (2d Cir. 2009). The activities of private hospitals and their

enhancement” will not suffice. Id. (internal quotation marks officers typically do not satisfy any of these tests. Id.; Rule v.

and alterations omitted). Braiman, 2024 WL 4042135, at *13. “[P]laintiff's complaint

contains no allegations that defendant Glens Falls Hospital is

a state actor. Since it is the duty of the plaintiff to allege state

action on the part of the defendant named in a complaint, a

B. Analysis of the Complaint

court may dismiss an action under 28 U.S.C. § 1915(e) where

a plaintiff fails to plead such a nexus.” Denes v. Glens Falls

1. Section 1983 Hosp., 2005 WL 2033489, at *2 (N.D.N.Y. Aug. 17, 2005).

Upon review, all of Plaintiff's section 1983 claims should be Accordingly, the Court recommends that the section 1983

dismissed. claims asserted here be dismissed.

First, claims against the Glens Falls Police Department should

be dismissed. “A city police department is not an independent,

suable entity separate from the municipality in which the 2. State Law Claims

police department is organized.” Krug v. Cty. of Rennselaer,

*3 Liberally construed, the Complaint also asserts claims for

559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008). As a result, claims

medical malpractice. That claim should also be dismissed at

against that entity must be dismissed.

this juncture based on a lack of subject matter jurisdiction.

Next, Section 1983 claims against Glens Falls Hospital and

“[A] medical malpractice claim is a state law claim that

its President should be dismissed based on the lack of state

is neither created by federal law nor necessarily depends

action. “Because the United States Constitution regulates

on the resolution of a substantial question of federal law.”

only the Government, not private parties, a litigant claiming

Gilmore for Gilmore v. Rensselaer Cnty. Med. Exam'r, 2022

that his constitutional rights have been violated must first

WL 1985664, at *4 (N.D.N.Y. June 3, 2022), report and

establish that the challenged conduct constitutes state action.”

recommendation adopted, 2022 WL 2827514 (N.D.N.Y. July

Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178,

jurisdiction only if there is diversity of citizenship. shall supersede and replace in its entirety the previous

Complaint filed by Plaintiff, must contain sequentially

“Diversity jurisdiction exists where the parties are citizens numbered paragraphs containing only one act of

of different states and the amount in controversy exceeds misconduct per paragraph. Thus, if Plaintiff claims that

$75,000.” Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 455 his civil and/or constitutional rights were violated by more

(W.D.N.Y. 2011). “A case falls within the federal district than one defendant, or on more than one occasion, he should

court's original diversity jurisdiction only if diversity of include a corresponding number of paragraphs in his amended

citizenship among the parties is complete, i.e., only if there complaint for each such allegation, with each paragraph

is no plaintiff and no defendant who are citizens of the same specifying (i) the alleged act of misconduct; (ii) the date,

State.” Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, including the year, on which such misconduct occurred; (iii)

388 (1998) (internal quotations omitted). Complete diversity the names of each and every individual who participated in

is required – meaning if any Defendant is a resident of the such misconduct; (iv) where appropriate, the location where

same state as the Plaintiff, diversity jurisdiction does not exist. the alleged misconduct occurred; and, (v) the nexus between

Seemann v. Maxwell, 178 F.R.D. 23, 24 (N.D.N.Y. 1998). such misconduct and Plaintiff's civil and/or constitutional

The Complaint specifically alleges that both Plaintiff and rights.

Defendants are residents of New York. Compl. at pp. 4-5. As a

result, there is also no diversity jurisdiction in this case and no *4 Plaintiff is further cautioned that no portion of his prior

independent jurisdictional basis for entertaining these claims. Complaint shall be incorporated into his amended complaint

by reference. Any amended complaint submitted by Plaintiff

A district court may decline to exercise supplemental must set forth all of the claims he intends to assert against the

jurisdiction over state law claims when it “has dismissed all defendants and must demonstrate that a case or controversy

claims over which it has original jurisdiction.” 28 U.S.C. exists between the Plaintiff and the defendants which Plaintiff

§ 1367(c)(3). Generally, “when the federal-law claims have has a legal right to pursue and over which this Court has

dropped out of the lawsuit in its early stages and only jurisdiction. If Plaintiff is alleging that the named defendant

state-law claims remain, the federal court should decline the violated a law, he should specifically refer to such law.

exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 (1988). Having recommended dismissal

of the federal claims over which the Court has original

III. CONCLUSION

jurisdiction, the Court also recommends that the District

Court decline to exercise its supplemental jurisdiction over For the reasons stated herein, it is hereby

any state law claims Plaintiff may be asserting.

RECOMMENDED, that Plaintiff's Complaint be

DISMISSED with leave to amend; and it is

3. Leave to Amend

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

“[A] court should not dismiss a complaint filed by a pro se Report-Recommendation and Order upon the parties to this

litigant without granting leave to amend at least once ‘when action.

a liberal reading of the complaint gives any indication that a

valid claim might be stated.’ ” Bruce v. Tompkins Cty. Dep't of Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen

Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. (14)2 days within which to file written objections to the

Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05 foregoing report. Such objections shall be filed with the Clerk

(2d Cir. 1991)). Accordingly, the Court recommends that the of the Court. FAILURE TO OBJECT TO THIS REPORT

Complaint be dismissed, but that Plaintiff be afforded an WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

opportunity to amend. APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89

(2d Cir. 1993) (citing Small v. Sec'y of Health and Human

The Court advises Plaintiff that should he be permitted to Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §

amend his Complaint, any amended pleading he submits 636(b)(1); FED. R. CIV. P. 72 & 6(a).

must comply with Rules 8 and 10 of the Federal Rules

If you are proceeding pro se and are served with day that is not a Saturday, Sunday, or legal holiday.

this Order by mail, three additional days will be FED. R. CIV. P. 6(a)(1)(C).

added to the fourteen-day period, meaning that you

have seventeen days from the date the order was

All Citations

mailed to you to serve and file objections. FED. R.

CIV. P. 6(d). If the last day of that prescribed period Slip Copy, 2025 WL 2324128

falls on a Saturday, Sunday, or legal holiday, then

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2025 WL 2323523 amend. Dkt. No. 5.

Only the Westlaw citation is currently available.

United States District Court, N.D. New York. Plaintiff has not lodged objections to the R&R. The time

period in which to do so has expired. However, plaintiff has

Curtis Dijon FISHER, Plaintiff, submitted a First Amended Complaint in accordance with

v. the R&R. Dkt. No. 6. Upon review for clear error, the R&R

GLENS FALLS HOSPITAL et al., Defendants. will be accepted and adopted, see FED. R. CIV. P. 72(b), and

plaintiff's First Amended Complaint will be referred to Judge

1:25-CV-831 (AJB/DJS) Stewart for further action as appropriate.

|

Signed August 12, 2025 Therefore, it is

Attorneys and Law Firms ORDERED that

CURTIS DIJON FISHER, Plaintiff, Pro Se, 21085, Warren

1. The Report & Recommendation (Dkt. No. 5) is

County Correctional Facility, 1400 State Route 9, Lake

ACCEPTED; and

George, NY 12845.

2. Plaintiff's complaint (Dkt. No. 1) is DISMISSED with leave

to amend; and

ORDER ON REPORT & RECOMMENDATION

3. Plaintiff's First Amended Complaint (Dkt. No. 6) is

Anthony Brindisi, United States District Judge:

REFERRED to Judge Stewart.

*1 On June 26, 2025, pro se plaintiff Curtis Dijon Fisher

(“plaintiff”), who is currently being detained in the Warren The Clerk of the Court is directed to terminate the pending

County Correctional Facility, filed this 42 U.S.C. § 1983 motion and refer the First Amended Complaint (Dkt. No. 6)

action alleging that defendants violated his civil rights. Dkt. to the assigned Magistrate Judge for further action.

No. 1. Along with his complaint, plaintiff moved for leave to

proceed in forma pauperis (“IFP Application”). Dkt. No. 2, 3. IT IS SO ORDERED.

On July 15, 2025, U.S. Magistrate Judge Daniel J. Stewart

All Citations

granted plaintiff's IFP Application, Dkt. No. 4, and conducted

an initial review of plaintiff's pleading. Based on this initial Slip Copy, 2025 WL 2323523

review, Judge Stewart advised by Report & Recommendation

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2025 WL 247901 ‘is merely an agency or arm of New York State.” Id. at

Only the Westlaw citation is currently available. 12-13 (quotation omitted). Finally, Magistrate Judge Hummel

United States District Court, N.D. New York. recommended that the claims against Defendant Maxwell be

dismissed because he is protected by prosecutorial immunity.

Matthew H. COLE, Plaintiff, See id. at 13-14. Plaintiff has not objected to the Report-

v. Recommendation and Order.

Honorable Michael W. SMRTIC, Interim Montgomery

County Judge; Tatiana N. Coffinger, County/Family/ When a party files specific objections to a magistrate judge's

report-recommendation, the district court “make[s] a de novo

Surrogate's Court Judge; Honorable Felix Catena,

determination of those portions of the report or specified

Retired Administrative Law Judge; and Samuel V.

proposed findings or recommendations to which objection is

Maxwell, Esq., Assistant District Attorney, Defendants.

made.” 28 U.S.C. § 636(b)(1)(C). However, when a party

1:24-CV-847 (MAD/PJE) files “[g]eneral or conclusory objections, or objections which

| merely recite the same arguments [that he] presented to the

Signed January 21, 2025 magistrate judge,” the court reviews those recommendations

for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322,

Attorneys and Law Firms 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations

and footnote omitted). After the appropriate review, “the

MATTHEW H. COLE, 271 Market Street, Amsterdam, New court may accept, reject, or modify, in whole or in part, the

York 12010, Plaintiff pro se. findings or recommendations made by the magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

ORDER In the present matter, the Court finds that Magistrate Judge

Hummel correctly determined that Plaintiff's complaint must

Mae A. D'Agostino, United States District Judge: be dismissed. Plaintiff's complaint makes clear that his claims

stem from alleged violations of his rights that occurred during

*1 Plaintiff commenced this action on May 6, 2024,

an underlying state criminal case. See Dkt. No. 1 at 3-4;

asserting that Defendants violated his due process and speedy

Dkt. No. 7 at 4. Since Plaintiff's criminal conviction has not

trial rights, and that he received ineffective assistance of

been reversed, expunged by executive order, or called into

counsel in an underlying state criminal action. See Dkt. No. 1.

question by a federal court's issuance of a writ of habeas

In a Report-Recommendation and Order dated November 21,

corpus, Plaintiff's claims brought pursuant to Section 1983 are

2024, Magistrate Judge Hummel granted Plaintiff's request

barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Strong

to proceed in forma pauperis and conducted an initial

v. Watson, No. 1:22-cv-552, 2023 WL 8439445, *14-15

review of the complaint. See Dkt. No. 8. In the Report-

(W.D.N.Y. Sept. 26, 2023) (dismissing the plaintiff's claims

Recommendation and Order, Magistrate Judge Hummel

of malicious prosecution, conspiracy, speedy trial violations,

concluded that, in addition to the complaint being subject

denial of due process, and denial of equal protection under

to dismissal for failure to comply with Rule 8 of the

Heck because the claims “all seek to impugn the validity of

Federal Rules of Civil Procedure, Plaintiff's due process,

his underlying state court criminal charges”).

speedy trial, and ineffective assistance of counsel claims

are barred by Heck v. Humphrey, 512 U.S. 477 (1994),

*2 Magistrate Judge Hummel also correctly determined

because Plaintiff's underlying state court conviction has

that, in the alternative, the claims against the named

not been reversed on direct appeal or otherwise expunged.

Defendants are subject to dismissal based on absolute

See id. at 8-10. Moreover, the Report-Recommendation

judicial and prosecutorial immunity. The allegations against

and Order recommended dismissal of the claims against

Defendants Smrtic, Coffinger, and Catena make clear that

Defendants Smrtic, Coffinger, and Catena since they are

these individuals were acting in their judicial capacities

barred by absolute judicial immunity. See id. at 10-12.

and that their actions were not taken in the absence of

To the extent Plaintiff is attempting to assert a claim

jurisdiction. Accordingly, they are entitled to absolute judicial

against the Appellate Division, Third Department, Magistrate

immunity. See Ceparano v. Southampton Just. Ct., 404 Fed.

Plaintiff has alleged that he withheld exculpatory evidence ORDERS that Magistrate Judge Hummel's November 21,

in the underlying criminal matter. Since this conduct clearly 2024, Report-Recommendation and Order (Dkt. No. 8) is

involves “prosecutorial activities ‘intimately associated with ADOPTED in its entirety for the reasons set forth herein;

the judicial phase of the criminal process,’ ” Defendant and the Court further

Maxwell is entitled to absolute prosecutorial immunity. See

Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (quoting

ORDERS that Plaintiff's complaint (Dkt. No. 1) is

Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Additionally,

DISMISSED without leave to amend; and the Court further

to the extent Plaintiff has attempted to assert claims against

the Appellate Division, Third Department, the claims must be

ORDERS that Plaintiff's motion for permission to file

electronically (Dkt. No. 4) and motion to appoint counsel

dismissed because the Third Department is an arm of New

York State and is entitled to Eleventh Amendment immunity.

(Dkt. No. 5) are DENIED as moot; and the Court further

See Benyi v. New York, No. 3:20-cv-1463, 2021 WL 1406649,

*5 (N.D.N.Y. Mar. 23, 2021) (citation omitted).

ORDERS that the Clerk of the Court shall enter judgment in

Defendants’ favor and close this case; and the Court further

Finally, the Court agrees with Magistrate Judge Hummel that,

because it is clear that the issues with Plaintiff's complaint

ORDERS that the Clerk of the Court shall serve a copy of

this Order on Plaintiff in accordance with the Local Rules.

are substantive and not something that can be corrected by

better pleading, Plaintiff will not be afforded an opportunity

to amend his complaint. See Phillips v. New York, No. 5:13-

IT IS SO ORDERED.

cv-927, 2013 WL 5703629, *5 (N.D.N.Y. Oct. 17, 2013)

(quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. All Citations

2000)).

Slip Copy, 2025 WL 247901

Accordingly, the Court hereby

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.