Legree

TES DIST.

UNITED STATES DISTRICT COURT FD Cry

WESTERN DISTRICT OF NEW YORK ‘Ss PA

JUN 17 2026

TYRONE L. LEGREE, orenn yoeuer oS

STERN DISTRICUSS

Plaintiff,

Vv. 25-CV-432 (JLS)

UNITED STATES OFFICER;

MONROE COUNTY JAIL; DEPUTY

DOMINIC DENAREO; and NEW

YORK STATE GOV.,!

Defendants.

DECISION AND ORDER

Pro se Plaintiff Tyrone Legree, (“Plaintiff’), a prisoner confined at the

Franklin Correctional Facility, commenced this action under 42 U.S.C. § 1983,

which arises from an assault that occurred while he was incarcerated at the Monroe

County Jail. Plaintiff has filed a motion to appoint counsel (Dkt. 3), which contains

additional facts relevant to his assault, and which will be referenced below to

supplement the allegations in the complaint. Plaintiff also has filed a motion

seeking leave to proceed in forma pauperis (“IFP”) with the required affirmation.

Dkt. 2.

Because Plaintiff meets the requirements of 28 U.S.C. § 1915(a), he is

granted permission to proceed IFP. The Court therefore screens his complaint

1 The caption is reproduced as it appears in the Court’s electronic case management

system (““CM/ECF’).

pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(a)-(b). For the reasons below,

Plaintiffs motion to appoint counsel is denied without prejudice. His claims against

Defendant “New York State Gov.” are dismissed without leave to amend. His

Eighth Amendment claims for excessive force and failure to protect against

Defendant Denareo in his individual capacity may proceed to service, and his

remaining claims are dismissed with leave to amend.

DISCUSSION

I. LEGAL STANDARDS

A. Review Under the IFP Statutes

A court shall dismiss a complaint in a civil action in which a prisoner seeks

redress from a governmental entity, or an officer or employee of a governmental

entity, if the court determines the action “(i) is frivolous or malicious, (ii) fails to

state a claim upon which relief may be granted; or (iii) seeks monetary relief from a

defendant who is immune from such relief.” 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1)-

2) (same standard of review).

B. Pleading Standards

In evaluating a complaint, the court must “accept all of the facts alleged in

the complaint as true and draw all inferences in the plaintiffs favor.” Abbas v.

Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks and citation

omitted). Although “a court is obliged to construe [pro se] pleadings liberally,

particularly when they allege civil rights violations,” McEachin v. McGuinnis, 357

F.3d 197, 200 (2d Cir. 2004), even a pro se complaint must comply with Rule 8 of the

Federal Rules of Civil Procedure, which requires a complaint to make “a short and

plain statement of the claim showing that the pleader is entitled to relief.” A

complaint states a claim for relief if the claim is “plausible on its face.” Bell Ail.

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim will have “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 other

words, although a pro se complaint need not provide every last detail in support of a

claim, it must contain sufficient factual allegations to nudge the claim “across the

line from conceivable to plausible.” Twombly, 550 U.S. at 570. See Komatsu v.

Cubesmart, Daniels Norelli Cecere & Tavel PC, 2021 WL 6060603, at *1 (2d Cir.

Dec. 20, 2021) (summary order) (to avoid sua sponte dismissal under the IFP

statutes, “a complaint must plead ‘enough facts to state a claim to relief that is

plausible on its face”); Scott Phillip Lewis v. R.L. Vallee, Inc., d.b.a. Maplefield’s,

2025 WL 1077412, at *1 (2d Cir. Apr. 10, 2025) (summary order) (same).

The Court’s liberal pleading standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully- .

harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

A complaint fails to state a claim if it supplies only “labels and conclusions,”

Twombly, 550 U.S. at 555, “a formulaic recitation of the elements of a cause of

action,” id., or “naked assertions’ devoid of ‘further factual enhancement,” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Although a court is “obligated

to draw the most favorable inferences that [a plaintiff]’s complaint supports, [it]

cannot invent factual allegations that he [or she] has not pled.” Chavis v. Chappius,

618 F.3d 162, 170 (2d Cir. 2010).

C. Section 1983 Claims

To state a valid claim under 42 U.S.C. § 1983, “the plaintiff must allege that

the challenged conduct (1) was attributable to a person acting under color of state

law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the

Constitution or laws of the United States.” Whalen v. County of Fulton, 126 F.3d

400, 405 (2d Cir, 1997). “Section 1983 itself creates no substantive rights; it

provides only a procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 18 F.3d 515, 519 (2d Cir. 1993) (citing City of

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

To establish liability against an official under Section 1983, a plaintiff must

allege that individual’s personal involvement in the alleged constitutional violation;

it is not enough to assert that the defendant is a link in the chain of command. See

McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Moreover, the theory of

respondeat superior is not available in a Section 1983 action. See Hernandez v.

Keane, 341 F.3d 137, 144 (2d Cir. 2003). There is “no special rule for supervisory

liability.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Rather, “a

plaintiff must plead and prove that each Government-official defendant, through

the official’s own individual actions . . . violated the Constitution.” Jd. (quoting

Iqbal, 556 U.S. at 676).

D. Leave to Amend

Generally, a court will afford a pro se plaintiff an opportunity to amend or to

be heard prior to dismissal, unless it “can rule out any possibility, however

unlikely it might be, that an amended complaint would succeed in stating a claim.”

Abbas, 480 F.3d at 639 (internal quotation marks and citation omitted); see also

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be

read liberally. Certainly, the court should not dismiss without granting leave to

amend at least once when a liberal reading of the complaint gives any indication

that a valid claim might be stated.” (quoting Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 795 (2d Cir. 1999))). But leave to amend pleadings may be denied when

any amendment would be “futile.” Cuoco, 222 F.3d at 112.

II. The Complaint

Liberally construed, the complaint tells the following story. Plaintiff alleges

that, on December 5, 2024, while incarcerated at the Monroe County Jail, Denareo

ordered and paid another inmate, Tyrone Singletary (“Singletary”), to assault

Plaintiff, and “opened [Plaintiffs] cell” to allow Singeltary to commit the assault.

Dkt. 1 at 4-5; Dkt. 3 at 2. The assault was ordered “because [of Plaintiffs] alleged

criminal charges.” Dkt. 3, at 2. The inmate kicked and punched Plaintiff “a dozen

or more times” in “[the] face, head, [and] upper [and] lower back.” Jd. This assault

caused Plaintiff nerve damage and pain. Jd.; Dkt. 1 at 4. Plaintiff had to lie down

“most of the day because of the pain.” Dkt 1 at 5. Plaintiff alleges that he believes

“they are trying to sweep it under the rug.” Jd. at 7. He also alleges that the

“Sheriff[]s Deputy,” presumably Denareo, “was fired,” that this was “on the news’,

and that “internal affairs conducted an investigation.” Id. at 4, 5, 8.

Plaintiff characterizes his claims as “Equal Protection, First Amendment,

[and] Bighth Amendment.” Jd. at 3. He sues Denareo in his official capacity and

requests monetary damages. Id. at 2, 5.

Ill. BIVENS

An action under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), affords “the victims of a constitutional violation by a

federal agent ... a right to recover damages against the official in federal court

despite the absence of any statute conferring such a right.” Hartman v. Moore, 547

U.S. 250, 254 n.2 (2006) (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)).

Plaintiff has checked the box in the form complaint indicating that this is a

suit against federal officials, Dkt. 1 at 3, and he has also named a “United States

Officer” in the caption as a defendant, but no United States Officer is mentioned in

the complaint or in the motion to appoint counsel. The claims against Defendant

United States Officer are therefore dismissed from the action without prejudice. Cf.

Watson v. Bojkovic, No. 17-CV-5137 (BMC)(LB), 2018 WL 11700088, at *2, n.1

(E.D.N.Y. Oct. 24, 2018) (declining to construe complaint as asserting claims under

Bivens where allegations did not involve any federal officials).

IV. SECTION 1983 CLAIMS

A. Eleventh Amendment

Unless a State has “waived its Eleventh Amendment immunity or Congress

has overridden it .. . a State cannot be sued directly in its own name regardless of

the relief sought.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citation

omitted). Congress has not abrogated the states’ immunity for claims for monetary

damages under Section 1983, see Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d

Cir. 1990), and New York has not waived its immunity to suit in federal court, see

Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977).

The claims against Defendant “New York State Gov.” are therefore dismissed

without prejudice but without leave to amend in this action.?

B. Municipal Liability

Plaintiff names the Monroe County Jail as a Defendant in this action. The

Monroe County Jail is an “administrative subdivision” of Monroe County.

Wekenmann v. Erie Cnty. Sheriff's Off., 1:19-ev-1572, 2021 WL 22540, at *1

(W.D.N.Y. Jan. 4, 2021). As such, “[i]t is not subject to suit in its own capacity.” Id.

“Whether Eleventh Amendment immunity ‘constitutes a true issue of subject

matter jurisdiction or is more appropriately viewed as an affirmative defense’ has

not yet been decided by the Supreme Court or this Court.” Allco Fin. Lid. v.

Roisman, No. 22-2726, 2023 WL 4571965, at *1 (2d Cir. July 18, 2023) (summary

order) (quoting Carver v. Nassau Cty. Interim Fin. Auth., 730 F.3d 150, 156 (2d Cir.

2013)). Consequently, the Court dismisses Plaintiffs claims as barred by the

Eleventh Amendment without prejudice. See, e.g., Petralia v. New York, No. 6:20-

CV-06393 EAW, 2021 WL 4034526, at *8 (W.D.N.Y. Sept. 3, 2021).

Instead, the Court will treat it as “an action against the County itself.” Id. (quoting

Metcalf v. County of Erie, 173 A.D.3d 1799, 1801 (4th Dep’t. 2019)).

Likewise, Plaintiff sues Denareo, a Monroe County Sheriffs Deputy in his

official capacity. This is the functional equivalent of a suit against his employer,

Monroe County. See Coon v. Town of Springfield, 404 F.3d 683, 687 (2d Cir. 2005)

(“[A] § 1983 suit against a municipal officer in his official capacity is treated as an

action against the municipality itself.”).

A municipality cannot be held liable under Section 1983 unless the

challenged action was undertaken pursuant to a municipal policy or custom. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To state such a claim, a

plaintiff must plead three elements: “(1) an official policy or custom that (2) causes

the plaintiff to be subjected to (8) a denial of a constitutional right.” Zahra v. Town

of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (quoting Batista v. Rodriguez, 702 F.2d

393, 397 (2d Cir. 1988)).

An official policy or custom can be established by showing:

a formal policy officially endorsed by the municipality; (2) actions or

decisions made by municipal officials with decision-making

authority; (8) a practice so persistent and widespread that it

constitutes a custom of which policymakers must have been aware;

or (4) a failure by policymakers to properly train or supervise their

subordinates, such that the policymakers exercised “deliberate

indifference” to the rights of the plaintiff and others encountering

those subordinates.

Kurmangaliyev v. City of New York, 2023 WL 8654023, at *2 (E.D.N.Y. Dec.

14, 2023) (citing cases).

The complaint, however, does not allege any facts suggesting that Plaintiffs

rights were violated pursuant to a policy or custom of Monroe County. See generally

Dkt. 1. Plaintiff, therefore, has failed to allege a basis to impose municipal liability.

He may, however, amend his complaint to allege facts showing that his

constitutional rights were violated by a municipal policy or custom.

C. Eighth Amendment Failure to Protect and Excessive Force

Plaintiff alleges that Denareo ordered another inmate to attack him. In

doing so, he raises both a failure to protect claim and an excessive force claim. See

Woodward v. Davis, No. 9:22-CV-438 (GLS/CFH), 2022 WL 22951315, at *4

(N.D.N.Y. Jun. 2, 2022) (“[A]llegations that a correctional officer made statements

intending to incite others to attack an inmate may state an excessive force claim.”);

Dadaille v. Coxsackie Corr. Facility, No. 9:23-CV-1583 (GTS) (ML), 2024 WL

1257878, at *5 (N.D.N.Y. Mar. 25, 2024) (same); Walsh v. Goord, No. 07-CV-0246,

2007 WL 1572146, at *10 (W.D.N.Y. May 28, 2007) (holding that if the defendants

“made statements to other inmates that [the] plaintiff was a snitch or child molester

which incited other inmates to assault [the] plaintiff, thereby placing him at a grave

risk of injury, then a claim of excessive force may be stated”).

As a convicted prisoner, Plaintiffs excessive force claim is governed by the

Eighth Amendment. See Yancey v. Pancoe, No. 6:20-CV-06149 EAW, 2021 WL

859378, at *3 (W.D.N.Y. Mar. 8, 2021) (“[T]he use of force against an inmate who

has been convicted is governed by the Eighth Amendment.”).3 To state a claim for

the use of excessive force in violation of the Eighth Amendment, a plaintiff “must

allege two elements, one subjective and one objective.” Crawford v. Cuomo, 796

F.3d 252, 256 (2d Cir. 2015). As to the objective element, a plaintiff “must allege

that the conduct was objectively ‘harmful enough’ or ‘sufficiently serious’ to reach

constitutional dimensions.” Crawford, 796 F.3d at 256 (quoting Hudson v.

McMillian, 503 U.S. 1, 8, 20 (1992)). Courts analyze this element according to the

nature of the force used, rather than the degree of injury. See Wilkins v. Gaddy,

559 U.S. 34, 38 (2010) (“Injury and force . . . are only imperfectly correlated, and it

is the latter that ultimately counts.”). Consequently, a “malicious use of force to

cause harm constitutes an ‘Eighth Amendment violation|[ ] per se . . . whether or not

significant injury is evident.” Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999)

(quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)).

To satisfy the subjective element, a plaintiff must allege that the defendant

acted with a “sufficiently culpable state of mind,” the “core .. . inquiry” being

3 Plaintiff alleges that he is a convicted state prisoner. Dkt. 1 at 4. It is likely that,

due to his incarceration at the Monroe County Jail and subsequent transfer toa

State correctional facility, he was a pretrial detainee when the events alleged in the

complaint occurred, and therefore, the Fourteenth Amendment would apply. In any

event, even if Plaintiffs claims were analyzed under Fourteenth Amendment, they

remain sufficiently alleged to proceed to service. See Ware v. Brann, No. 21 CIV.

2028 (DEH), 2024 WL 4202681, at *2 (S.D.N.Y. Sept. 16, 2024), appeal dismissed

(Feb. 3, 2025) (“{[T]he Fourteenth Amendment provides protections ‘at least as great

as the Eight Amendment protections available to a convicted prisoner’—in other

words, the Eighth Amendment provides no additional protections not granted under

the Fourteenth Amendment.” (quoting Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.

2017))).

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“whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7-8 (internal

quotation marks and citations omitted). Not “every malevolent touch,” however,

“gives rise to a federal cause of action.” Id. at 9. The Eighth Amendment’s

prohibition against excessive force does not extend to “de minimis uses of physical

force, provided that the use of force is not of a sort ‘repugnant to the conscience of

mankind.” Id. at 9-10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)).

The absence of serious injury, even if not the controlling factor, remains

relevant to the Eighth Amendment inquiry. For instance, “the extent of

injury ... may suggest ‘whether the use of force could plausibly have been thought

necessary in a particular situation,” Hudson, 503 U.S. at 7 (quoting Whitley, 475

U.S. at 321), or “provide some indication of the amount of force applied.” Wilkins,

559 U.S. at 37.

The Eighth Amendment also requires prison officials to take reasonable

measures to guarantee the safety of inmates in their custody. Farmer v. Brennan,

511 U.S. 825, 833 (1994). The assessment of whether the measures taken are

reasonable turns on an analysis of two factors. First, “the inmate must show that

he is incarcerated under conditions posing a substantial risk of serious harm.” Id.

at 834. A substantial risk of serious harm may arise from “from either ‘a specific

assailant’ or ‘a more general risk of harm due to the conditions at the time of the

attack.” Dietrich v. County of Orange, No. 19-CV-10485 (CS), 2020 WL 5209816, at

*3 (S.D.N.Y. Sept. 1, 2020) (citation omitted).

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Plaintiffs allegations that Denareo paid, ordered, and facilitated Singletary

to attack him causing significant injury, sufficiently allege colorable claims for

failure to protect and excessive force, which may proceed to service against Denareo

in his individual capacity.4

D. First Amendment Access to Courts

While Plaintiff references a First Amendment claim in the complaint, Dkt. 1

at 3, the basis of that claim is difficult to discern from the facts alleged. The

complaint includes no allegation that the attack was retaliatory. Plaintiff alleges,

however, that the jail officials were “trying to sweep [the incident] under the rug.”

Id. at 7. Liberally construed, he may be seeking to raise a First Amendment access-

to-courts claim.

Prisoners, including pretrial detainees, “have a constitutional right of access

to the courts” that requires a “reasonably adequate opportunity to present claimed

violations of fundamental constitutional rights to the courts.” Bounds v. Smith, 430

U.S. 817, 821-25 (1977); see Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir. 2004).

This right of access to the court “gives rise to a number of derivative rights,

including the right to access legal materials to prepare a case, and the right of

indigent inmates to be provided with paper and pens to draft legal documents and

4 Permitting this or any claim to proceed to service does not immunize it from a

motion to dismiss or for summary judgment. See Jones v. Sullivan, 9:19-cv-0025

(BKS/CFH), 2020 WL 5792989, at *5 (N.D.N.Y. Sept. 29, 2020) (“A court’s initial

screening under § 1915(e) and/or § 1915A does not preclude a later dismissal under

Fed. R. Civ. P. 12(b)(6).” (citing Cusamano v. Sobek, 604 F. Supp. 2d 416, 434-35

(N.D.N.Y. 2009)).

12

stamps to mail them.” Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008)

(citing Bounds, 430 U.S. at 824-28). As a derivative right, a plaintiff must

demonstrate an “actual injury’ in order to have standing.” Benjamin v. Fraser, 264

F.3d 175, 185 (2d Cir. 2001) (quoting Lewis v. Casey, 518 U.S. 348, 351 (1996)).

Thus, in order to allege a plausible First Amendment denial of access to

courts claim, a plaintiff must demonstrate “that a defendant caused ‘actual injury,’

1.e., took or was responsible for actions that ‘hindered ... efforts to pursue a [non-

frivolous] legal claim.” Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997)

(internal citation omitted) (quoting Lewis, 518 U.S. at 351); see Kaminski v. Semple,

796 F. App’x 36, 39 (2d Cir. 2019) (summary order) (“Actual injuries include the

dismissal of a complaint for a technical deficiency that would have been cured with

appropriate legal facilities, or that a prisoner was ‘stymied’ from bringing an

arguably actionable claim by the ‘inadequacies of the law library.” (quoting Lewis,

518 U.S. at 351)). A plaintiff must also allege that the actual injury was the result

of deliberate and malicious conduct. See Davis v. Goord, 320 F.3d 346, 351 (2d Cir.

2003); DeMeo v. Tucker, 509 F. App’x 16, 18 (2d Cir. 2013) (summary order).

“[T]he underlying cause of action, whether anticipated or lost, is an element

that must be described in the complaint, just as much as allegations must describe

the official acts frustrating the litigation,” and “the underlying cause of action and

its lost remedy must be addressed by allegations in the complaint sufficient to give

fair notice to a defendant.” Christopher v. Harbury, 536 U.S. 403, 415-16 (2002).

The legal claim hindered must also concern a plaintiffs “criminal conviction, habeas

13

corpus petition, or conditions of confinement.” Kaminski, 796 F. App’x at 39 (citing

Lewis, 518 U.S. at 352-54). “Impairment of any other litigating capacity is simply

one of the incidental (and perfectly constitutional) consequences of conviction and

incarceration.” Lewis, 518 U.S. at 355.

Taking Plaintiffs allegations as true, he nevertheless offers no facts to

explain how any legal action has been prejudiced by the defendants’ conduct.

Accordingly, Plaintiffs claim that he has been denied access to the courts is

dismissed, but with leave to replead the claim in an amended complaint.

E. Equal Protection

Plaintiff identifies, but does not provide any facts to support, an equal

protection claim. Dkt. 1 at 3. “The Equal Protection Clause of the Fourteenth

Amendment requires that all persons similarly situated be treated in the same

manner.” Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir. 1996) (citing City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). In order to plead a facially valid

equal protection claim, “a plaintiff must allege: (1) that he has been treated

differently from similarly-situated persons, and (2) that the discrimination is based

upon a constitutionally impermissible basis, such as his race, religion, national

origin, or some other protected characteristic.” Sullivan v. Chappius, 711 F. Supp.

2d 279, 284 (W.D.N.Y. 2010).

“(T]he law presumes plausible allegations of discriminatory motivation to be

equivalent to allegations of differential treatment from similarly situated

comparators.” Walston v. City of New York, 22-CV-10002 (LAK)(JW), 2024 WL

14

1376905, at *10 (S.D.N.Y. Mar. 7, 2024) (citation and internal quotation marks

omitted), report and recommendation adopted, 2024 WL 1374837 (S.D.N.Y. Apr. 1,

2024); Hawkins v. Miller, 20-CV-1798-LJV, 2023 WL 5019602, at *4 (W.D.N_Y. Aug.

7, 2023) (the absence of an allegation that the plaintiff was treated differently than

other similarly situated individuals, “is not fatal to [an] equal protection claim”).

For instance, “[t]o state a race-based claim under the Equal Protection

Clause, a plaintiff must allege that a government actor intentionally discriminated

against him on the basis of his race.” Brown v. City of Oneonta, N.Y., 221 F.3d 329,

337 (2d Cir. 2000). Such claims must be alleged in a “non-conclusory fashion.”

Clyburn v. Shields, 33 F. App’x 552, 555 (2d Cir. 2002) (summary order). The facts

alleged must show that “discriminatory intent” was a “motivating factor” in the

defendant’s conduct. Okin v. Vill. of Cornwall-on-Hudson Police Dep’, 577 F.3d

415, 438 (2d Cir. 2009).

“Where... a plaintiff does not claim to be a member of a constitutionally

protected class, he may bring an Equal Protection claim pursuant to one of two

theories: (1) selective enforcement, or (2) ‘class of one.” Vaher v. Town of

Orangetown, N.Y., 916 F. Supp. 2d 404, 483 (S.D.N.Y. 2013). A class-of-one claim

requires a plaintiff to plausibly allege that he or she “has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

This theory requires that the plaintiff plead “an extremely high degree of similarity”

between comparators. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006);

15

see Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010).

In other words, the similarly-situated comparator must be “prima facie identical” to

the plaintiff such that “no rational person could regard the circumstances of the

plaintiff to differ from those of a comparator to a degree that would justify the

differential treatment on the basis of a legitimate government policy” and “the

similarity in circumstances and difference in treatment are sufficient to exclude the

possibility that the defendant acted on the basis of a mistake.” Hu v. City of New

York, 927 F.3d 81, 92 (2d Cir. 2019) (quoting Neilson v. D’Angelis, 409 F.3d 100, 105

(2d Cir. 2005)).

To plead a selective enforcement claim, a plaintiff must plausibly allege that

(1) “compared with others similarly situated, he was selectively treated, and (2) the

selective treatment was motivated by an intention to discriminate on the basis of

impermissible considerations, such as race or religion, to punish or inhibit the

exercise of constitutional rights, or by a malicious or bad faith intent to injure the

person.” Id. at 91 (quoting Zahra, 48 F.3d at 683). A “reasonably close

resemblance’ between a plaintiffs and comparator’s circumstances” is required. Id.

at 93.

Plaintiff has alleged no facts to support an equal protection claim under any

one of these three theories. He may, however, replead this claim in an amended

complaint.

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V. MOTION TO APPOINT COUNSEL

Plaintiff has filed a motion to appoint counsel on the grounds that he is

indigent and incarcerated and does not understand the law. Dkt. 3 at 1-2.

Pursuant to 28 U.S.C. § 1915), the Court may appoint counsel to assist indigent

litigants. When determining whether appointment of counsel is appropriate, courts

undertake a two-step inquiry. First, the court determines “whether the indigent’s

position seems likely to be of substance,” and if the claim meets this threshold

requirement, the court should then consider the following factors:

the indigent’s ability to investigate the crucial facts, whether conflicting

evidence implicating the need for cross-examination will be the major

proof presented .. ., the indigent’s ability to present the case, the

complexity of the legal issues and any special reason in that case why

appointment of counsel would be more likely to lead to a just

determination.

Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).

At this stage, it is too early to determine whether Plaintiffs surviving claims

are likely to be of substance. Nor does there appear to be any special reason why

appointment of counsel is warranted at this time, particularly since Plaintiff has

demonstrated a capacity to communicate the factual basis of his claims to the

Court. See Kearse v. Aini, 19-CV-1579 (Sr), 2023 WL 119109285, at *1 (W.D.N.Y.

Feb. 1, 2028) (denying motion to appoint counsel where the plaintiff was able to

communicate claims to court and it could not yet be determined whether claims

were of merit). For these reasons, the motion is denied without prejudice.

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CONCLUSION

For the reasons set forth above, Plaintiffs motion to appoint counsel is denied

without prejudice. Plaintiff's excessive force claim and failure to protect claim

against Denareo in his individual capacity may proceed to service. His claims

against defendant “New York State Gov.” are dismissed under the Eleventh

Amendment without prejudice and without leave to amend. His remaining claims

_ are dismissed with leave to amend. Plaintiff may file an amended complaint by

July 31, 2026, in which he includes the necessary allegations as directed above and

in a manner that complies with Rules 8 and 10 of the Federal Rules of Civil

Procedure.

Plaintiff is advised that an amended complaint completely replaces the

prior complaint in the action, and thus it “renders [any prior complaint] of no legal

effect.” Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Therefore,

any amended complaint must include all allegations against each Defendant so that

the amended complaint stands alone as the only complaint in this action.

Plaintiff is further advised that he has been granted leave to amend only

those claims addressed above. A district court has the inherent authority to dismiss

claims that exceed the scope of the court’s order granting leave to amend. See Palm

Beach Strategic Income, LP v. Salzman, 457 F. App’x 40, 43 (2d Cir. 2012)

(summary order) (collecting cases).

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ORDER

For the reasons set forth above,

ORDERED that Plaintiffs motion to proceed IFP (Dkt. 2) is granted; and it is

further

ORDERED that Plaintiffs motion to appoint counsel (Dkt. 3) is denied

without prejudice; and it is further

ORDERED that Plaintiffs claims against Defendant “New York State Gov.”

are dismissed without prejudice and without leave to amend; and it is further

ORDERED that the Eighth Amendment claims against Defendant Deputy

Dominic Denareo for excessive force and failure to protect shall proceed to service;

and it is further

ORDERED that the remaining claims alleged in the complaint are dismissed

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and 1915A(b)(1) for failure to state a claim

upon which relief may be granted but with leave to amend; and it is further

ORDERED that Plaintiff may file an amended complaint as directed above

by July 31, 2026; and it is further

ORDERED that the Clerk of Court shall send to Plaintiff with this order a

copy of the original complaint, a blank section 1983 complaint form, and the

instructions for preparing an amended complaint; and it is further

ORDERED that if Plaintiff does not file an amended complaint by the

deadline set forth above, the claims dismissed under 28 U.S.C. §§ 1915(e)(2)(B) (ai)

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and 1915A(b)(1) for failure to state a claim upon which relief may be granted, will

remain dismissed; and it is further

ORDERED that if Plaintiff does not file an amended complaint by July 31,

2026, the Clerk of Court shall cause the United States Marshals Service to serve

copies of the summons, the complaint, and this order upon defendant Deputy

Dominic Denareo without Plaintiffs payment therefor, unpaid fees to be recoverable

if this action terminates by monetary award in Plaintiffs favor;5 and it is further

ORDERED that pursuant to Valentin v. Dinkins, 121 F.3d 72 (1997) (per

curiam) the Monroe County Attorney is requested to ascertain the full name, with

correct spelling, and last known service address of Deputy Dominic Denareo within

30 days of the date of this Order. The County Attorney need not undertake to

defend or indemnify this individual at this time. Rather, this Order merely

provides a means by which Plaintiff may name and properly serve this defendant,

as instructed by the Second Circuit in Valentin.

The County Attorney shall produce the information specified above within 30

days of the date of this Order, either electronically in CM/ECF by selecting

“Valentin Response” under “Discovery Documents” or by mail to the Pro Se

Litigation Unit, United States District Court, 100 State Street, Rochester, New

5 If Plaintiff files an amended complaint as directed in this Order, service will be

deferred until such time as the Court has screened the amended complaint

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a)-(b).

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York 14614. Upon receipt of this information, the Clerk of Court shall amend the

caption of this action to reflect the full names of these defendants;§ and it is further

ORDERED that the Clerk of Court shall forward a copy of this Order and the

complaint by email to Deputy Monroe County Attorney Alissa Brennan at

alissabrennan@monroecounty.gov; and it is further

ORDERED that, upon service, pursuant to 42 U.S.C. § 1997e(g)(2), Deputy

Dominic Denareo shall answer or respond to the remaining claims of the complaint;

and it 1s further

ORDERED that pursuant to Western District of New York Local Rule of Civil

Procedure 5.2(d), Plaintiff must immediately notify the Court in writing each time his

address changes. Failure to do so may result in dismissal of the action with prejudice.

SO ORDERED.

Dated: June 17, 2026 fo fo □□□

Buffalo, New York /

JOHN’ iL iE i

UNITED STATES DISTRICT JUDGE

6 Responses filed electronically in CM/ECF are reviewed by Court personnel before

being made public.

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