The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CLIFFORD CONYERS,
Plaintiff,
V.
No. 1:25-CV-0845
TROY, NY BOARD OF ELECTION, et al., (BKS/PJE)
Defendants.
APPEARANCES:
Clifford Conyers
812 River Street
Troy, New York 12180
Plaintiff pro se
PAUL J. EVANGELISTA
MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER
|. In Forma Pauperis
Plaintiff pro se Clifford Conyers (“plaintiff’) commenced this action on June 27,
2025, by filing a complaint.' See Dkt. No. 1. In lieu of paying this Court’s filing fee, plaintiff
submitted an application for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2.
™! The undersigned has reviewed plaintiff's IFP application and determines that he
financially qualifies to proceed IFP.2 This Court must now assess the merits of plaintiff's
complaint pursuant to 28 U.S.C. §§ 1915; 1915A.
’ The undersigned notes that plaintiff has one other action before this Court. See Conyers v. United
Brotherhood of Carpenters and Joiners of America Local Union, et al., 1:25-CV-1500 (MAD/MJk).
2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and
costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and witness
fees.
ll. Initial Review
A. Legal Standards
28 U.S.C. § 1915 directs that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that .. . the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). “Thus, it is a court’s responsibility to determine that a plaintiff may properly
maintain his complaint before permitting him to proceed further with his action.” Praileau
v. Fischer, 930 F. Supp. 2d 383, 394 (N.D.N.Y. 2013).3
The Second Circuit affords pro se litigants a “special solicitude” such “that a pro se
litigant’s submissions must be construed liberally, and that such submissions must be
to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks, citations, and footnote
omitted). However, the Court is not required to accept unsupported allegations that are
devoid of sufficient facts or claims. Although detailed allegations are not required at the
pleading stage, a complaint must still include enough facts to provide the defendants with
notice of the claims against them and the grounds upon which the claims are based. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”); Bell Atlantic v. Twombly, 550 U.S.
Despite the statutory language referring to incarcerated individuals, these requirements apply equally to
non-prisoner pro se litigants seeking to proceed in forma pauperis. See N.D.N.Y. L.R. 72.3(d) (“Unless
the Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be
referred to a Magistrate Judge for the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. §
1915A when an application to proceed in forma pauperis is filed.”).
544, 555-56 (2007) (Noting that a plaintiff bringing suit must plead “enough facts to state
a Claim to relief that is plausible on its face.”).
“If dismissal is warranted and the plaintiff is pro se, the court generally affords the
plaintiff leave to amend the complaint.” Rich v. AKwesasne Mohawk Casino Resort, No.
8:24-CV-0255 (AMN/CFH), 2024 WL 3677262, at *2 (N.D.N.Y. Aug. 6, 2024), report and
"| recommendation adopted, No. 8:24-CV-0255 (AMN/PJE), 2025 WL 286937 (N.D.N.Y.
Jan. 24, 2025) (citing Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995)).4 “However,
an opportunity to amend is not required where ‘the problem with [the plaintiff's] causes of
action is substantive’ such that ‘better pleading will not cure it.” /d. (quoting Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Ill. Discussion
A. Plaintiff Complaint®
Plaintiff's complaint arises out of the following series of events. On April 3, 2025,
plaintiff went to the Rensselaer County Board of Elections (“Board of Elections”) office in
Troy, New York, “to inquire about the last day of filing [his] designat[ing]® petition to run
for City Council of [D]istrict [#2].” Dkt. No. 1 at 2. Plaintiff states that he spoke with Megan
Connelly, a Rensselaer County Board of Elections staff employee (“Connelly”), who
m| advised him “that she would have to speak to her boss,” Mary E. Sweeney, Democratic
4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have
been provided to plaintiff.
5 Plaintiffs complaint includes eleven attachments. See Dkt. Nos. 1-1, 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 1-8, 1-
9, 1-10, 1-11. These attachments have also been reviewed in connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“A complaint is deemed to include any
written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that,
although not incorporated by reference, are integral to the complaint.”) (internal quotation marks and
citations omitted).
8 The undersigned notes that plaintiff uses the words “designating” and “designation” interchangeably when
describing the type of petition he filed with the Rensselaer County Board of Elections. The first page of the
petition attached to plaintiff's complaint states “Designating and Independent Petitions.” Dkt. No. 1-8.
Commissioner for the Rensselaer County Board of Elections (“Sweeney”). /d. Plaintiff
asked Sweeney when the last day to file his designating petition was because the 2025
Rensselaer County “running for office” booklet stated that the filing deadline was April 4,
2025. Id. Sweeney informed plaintiff that the deadline to file his designating petition was
April 3, 2025, and that the April 4, 2025, date in the 2025 Rensselaer County booklet “was
error.” Id.
Later that day, plaintiff filed his designating petition with the Board of Elections.
See Dkt. No. 1 at 2. Plaintiff states that Kimberly Nielson, Deputy Commissioner for the
Rensselaer County Board of Elections (“Nielson”) processed his designating petition.
See id. Plaintiff asked Nielson who was responsible for the error in the 2025 Rensselaer
County booklet. See id. Nielsen responded, “| did,” “with a guilty expression on her face.”
_|/d. Plaintiff then asked Nielson what would happen “if someone that looks like you”
attempted to file a designating petition on April 4, 2025. /d. Neilson replied that if
someone attempted to file a designating petition on April 4, 2025, the Board of Elections
would honor the filing. See id. at 2-3. Plaintiff further asked Nielson why he was “being
compelled to submit [his] designation petition on April 3, 2025?” /d. at 3. Nielson did not
reply “and just stamped my designation petition.” /d.
tri On April 9, 2025, plaintiff submitted an “opportunity petition” with the Board of
Elections in furtherance of his application to run for City Council. See Dkt. No. 1 at 3. On
April 29, 2025, plaintiff called the Rensselaer County Democratic Board of Elections to
inquire as to the status of his designating and opportunity petitions. See Dkt. No. 1 at 4.
Tina Jones, a Rensselaer County Board of Elections staff employee (“Jones”), took
plaintiff's call and told him “that her boss will get in contact with [him].” /d.
On May 5, 2025, Sweeney called plaintiff on the telephone to follow up on the April
29, 2025, telephone call about the status of his designating and opportunity petitions.’
See Dkt. No. 1 at 4. Sweeney informed plaintiff that the Board of Elections had mailed
him a letter stating that some of the signatures in his petitions were insufficient and
rejected by the Board of Elections. See id. at 4-5. Sweeney further explained that
because plaintiff did not have the requisite number of signatures required by law, he did
not meet the requirements to be on the Democratic Party primary ballot. See id. Plaintiff
replied that he never received a letter of this nature from the Board of Elections and
verified his home address as 812 River Street, Troy, New York. See id. at 5. Sweeney
“stated that she [would] mail [plaintiff] another letter explaining the insufficient signatures”
issue. /d.
Plaintiff asserts that as of June 2, 2025, he had not “received any notification letter
by mail of any sort.” Dkt. No. 1 at 5. Plaintiff further asserts that as of the date he filed
this complaint, the “Board of Election[s] never notified me of any errors on any of my
petitions.” /d. at 4.
As a result of the events described above, plaintiff claims that “[o]n or about May
5, 2025, [he] was unlawfully excluded from the certified ballot for the [Democratic Party]
m| Primary Election for public office in Rensselaer County, New York.” Dkt. No. 1-3 at 2.
Plaintiff alleges that Sweeney and Nielsen discriminated against him based on his race
and gender because he is an African-American man and they are both white women, and
they did so in an attempt to stop him from running for office and to suppress both his right
7 In support of this statement, plaintiff submits a screenshot of a cell phone call log that he claims indicates
Sweeney called him from a phone number at (518) 270-2994. See Dkt. No. 1-5. The undersigned accepts
plaintiff's allegations as true; however, it is unclear from the screenshot what day the call was made,
whether this was an incoming or outgoing call, or whether this call was from Sweeney.
to vote and the vote in general. See id. at 3. More specifically, plaintiff asserts that
Nielson “stated that if a person that .. . looked just like her, a [c]laucasian, would come on
the following day, they would have been able to file their designation petition . . . but [he]
wasn't given that right because of [his] race.” /d. at 7. Plaintiff further alleges that
Connelly, Schneider, and Jones were present when the discrimination occurred, did not
try to stop the alleged constitutional violations, and “laugh[ed] along [Jat the [a]rbitrary and
[c]apricious deceit [that] was being implemented by their supervisors.” /d. at 3. Moreover,
plaintiff claims that he is a member of a protected class who was discriminated against
when (1) he was intentionally misled and forced to submit his designating petition one
day before the official filing deadline, (2) the Board of Elections refused to provide him
with the required statutory notice informing him any signature errors in his designating
opportunity petitions, and (3) the Board of Elections denied his right to an opportunity
to cure any signature errors. See Dkt. No. 1 at 7-17.
Plaintiff seeks $200,000 in “compensatory damages,” $30,000,000 in “punitive
damages,” and $200,000 in “nominal and moral damages.” Dkt. No. 1-3 at 1. Plaintiff
also seeks “a declaratory injunction [stating] that the actions of Defendants violated [his]
rights under the First and Fourteenth Amendments and 42 U.S.C. § 1983 (sic)”; “a
m| Permanent injunction prohibiting Defendants from excluding any candidate from the ballot
without statutory notice, hearing, and an opportunity to cure defects”; and “a mandatory
injunction directing Defendants to implement transparent objection standards in
conformity with constitutional standards.” /d. at 2.
B. Analysis
Plaintiff seeks to proceed pursuant to 42 U.S.C. § 1983° against the “Troy, NY
Board of Election,” Sweeney, Nielson, Connelly, Schneider, and Jones, alleging that his
First, Fifth, Fourteenth, and Fifteenth Amendment rights were violated. See generally
Dkt. No. 1. Plaintiff also alleges that defendants violated his rights under Section 2 of the
Voting Rights Act of 1965 (“Voting Rights Act”). See id. at 7, 11.
Although plaintiff's complaint lists Sweeney as “President Commissioner of Troy,
New York [BJoard of Election’; Nielson as “Deputy Commissioner of the [BJoard of
Election in Troy, NY”; Connelly as “[B]oard of Election staff employee”; Schneider as
“[Bjoard of Election staff employee”; and Jones as “[BJoard of Election staff employee’;
plaintiff does not specify whether he wishes to sue each of these defendants in their
official capacities, individual capacities, or both. Dkt. No. 1 at 1; see generally Dkt. No. 1.
_,| Accordingly, “[a]t this early stage, the undersigned will consider whether either a personal
or official capacity claim [alleged against each defendant] can survive initial review.” Scott
v. Crossway, No. 1:22-CV-0500 (BKS/CFH), 2022 WL 16646531, at *6 (N.D.N.Y. Nov. 3,
2022), report and recommendation adopted, No. 1:22-CV-500 (BKS/CFH), 2023 WL
34543 (N.D.N.Y. Jan. 4, 2023) (citing Ying Jing Gan v. City of New York, 996 F.2d 522,
530 (2d Cir. 1993) (citations and quotation marks omitted) (“[I]n many cases, a complaint
against public officials will not clearly specify whether officials are sued personally, in their
official capacity, or both, and only [t]he course of proceedings . . . will indicate the nature
of the liability to be imposed[.]’)).
8 Section 1983 “establishes a cause of action for the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws of the United States.” German v. Fed. Home Loan Mortg. Corp., 885
F.Supp. 537, 573 (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 omitted). “Section 1983 itself creates no substantive rights, [but]... 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 Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
1. Individual Capacity Claims
a. Fourteenth Amendment: Due Process
Affording plaintiff due solicitude, he argues that his Fourteenth Amendment Due
Process rights were violated because Sweeney failed to notify him of any defects in his
designating and opportunity petitions and failed to provide him with an opportunity to cure
™] such defects in violation of New York State Election Law §6-154. See Dkt. No. 1 at 4-5,
13-14, 16-17.° In support of this claim, plaintiff submits copies of various documents and
records indicating that his home address is 812 River Street, Troy, New York 12180. See
Dkt. Nos. 1-3, 1-5.
The Due Process Clause provides that a State may not “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. “The two
_,|threshold questions in any procedural due process claim are: (1) whether the plaintiff
possessed a protected liberty or property interest protected by the United States
Constitution or federal statutes[,] and (2) if so, what process was due before plaintiff could
be deprived of that interest.” Barzee v. Tyler, No. 8:21-CV-902 (GTS/CFH), 2022 WL
1406606, at *7 (N.D.N.Y. May 3, 2022), report and recommendation adopted, No. 8:21-
CV-902 (GTS/CFH), 2022 WL 2079084 (N.D.N.Y. June 9, 2022) (quoting Green v. Bauvi,
m| 46 F.3d 189, 194 (2d Cir. 1995) (internal quotation marks omitted)).'°
® Plaintiff also claims that defendants violated his First Amendment right to political expression, in part,
because his exclusion “from the May 2025 primary election ballot without providing statutory notice, hearing,
or an opportunity to cure . . . deprived [him] of the opportunity to engage in core political speech.” Dkt. No.
1 at 17. Although plaintiff raises this claim under the First Amendment, affording plaintiff due solicitude, the
substance of this claim is the same as the Fourteenth Amendment Due Process claim analyzed herein.
The undersigned will discuss the remainder of plaintiff's First Amendment claims below. See infra 16-18.
10 Plaintiff also asserts that Sweeney’s conduct violated his Fifth Amendment Due Process rights. See Dkt.
No. 1 at 5. However, the Fifth Amendment is only applicable to the federal government. As plaintiff does
not name any federal entity or actor, the undersigned recommends dismissing plaintiff's Fifth Amendment
due process claim with prejudice and without opportunity to amend. See, e.g., Jackson v. Wylie, No. 22-
CV-0139(MAD/CFH), 2022 WL 2595318, at *2 (N.D.N.Y. July 8, 2022) (“As the Fifth Amendment provides
“However, there can be no Due Process Clause violation so long as the State
provides a meaningful post deprivation remedy.” Nicholas v. Seggos, No. 8:23-CV-463
(GTS/CFH), 2023 WL 6121164, at *6 (N.D.N.Y. Sept. 19, 2023), report and
recommendation adopted, No. 8:23-CV-463 (GTS/CFH), 2023 WL 7004103 (N.D.N.Y.
Oct. 24, 2023) (quoting Clark v. Dominique, 798 F. Supp. 2d 390, 401 (N.D.N.Y. 2011)
(quoting Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877,
880 (2d Cir. 1996) (internal quotation marks omitted)). “In New York State, an Article 78
proceeding provides an avenue of post[-]deprivation redress that satisfies due process
requirements.” Id. (quoting Clark, 798 F. Supp. 2d at 401); see also Rhee-Karn v. Burnett,
No. 13 CIV. 6132 (JPO), 2014 WL 4494126, at *5 (S.D.N.Y. Sept. 12, 2014) (“An Article
78 petition is the proper vehicle for challenging state actions taken in violation of the
_,| Federal Constitution.” (citations omitted)). “[I]t matters not whether a plaintiff actually
avails [him]self of the state court post-deprivation process. So long as that process is
available, a due process claim must be dismissed.” /d. (quoting Clark, 798 F. Supp. 2d
at 401) (quoting Longo v. Suffolk Cnty. Police Dep't, 429 F. Supp. 2d 553, 560 (E.D.N.Y.
2006)). “In contrast, when the deprivation is pursuant to an established state procedure,
the state can predict when it will occur and is in the position to provide a pre-deprivation
m| hearing. Under those circumstances, the availability of post-deprivation procedures will
not, ipso facto, satisfy due process.” /d. (quoting Rivera-Powell v. New York City Bad. of
due process protections against the actions of the federal government and its employees, claims against
state employees and agencies do not give rise to a Fifth Amendment violation.”) (citing U.S. Const. amend.
V)); see also Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth
Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits
the States, from depriving any person of property without due process of law.”).
Elections, 470 F.3d 458, 465 (2d Cir. 2006) (citation and internal quotation marks
omitted)).
Plaintiff does not allege that he maintains a property interest in running for public
office. See generally Dkt. No. 1. However, affording plaintiff due solicitude, and accepting
as true for purposes of this review only, that he maintains a property interest in running
"| for public office, plaintiff fails to establish a Fourteenth Amendment Due Process claim
based on Sweeney's alleged failure to notify him of any defects in his designating and
opportunity petitions and provide him with an opportunity to cure such defects. The
Second Circuit has addressed this exact situation in Rivera-Powell, 470 F.3d at 458.
“In Rivera-Powell, the Second Circuit held that where a state procedure—such as
an Article 78 proceeding—is available, a candidate for office did not state a due process
Claim, as the state procedure provided the candidate with the opportunity to validate his
petition and voice his position before the [Board of Elections].” Feliciano v. New York City
Bd. of Elections, No. 26-CV-3486 (LTS), 2026 WL 1295843, at *2 (S.D.N.Y. May 11, 2026)
(citing Rivera-Powell, 470 F.3d at 466-67). “[T]he statutory provision for an expedited
review of [a Board of Elections] determination by the New York Supreme Court provides
adequate pre-deprivation review and satisfies due process requirements.” /d. (citing
m| Farquharson v. Lafayette, No. 19-CV-3446 (NSR), 2020 WL 1699985, at *8 (S.D.N.Y. Apr.
7, 2020)). However, “it is of no moment whether a candidate fails to fully avail himself of
the procedures that are available” so long as the procedures themselves are available.
Id. (citing Rivera-Powell, 470 F.3d at 468, n.9).
Here, plaintiff's complaint is silent as to whether he filed an Article 78 proceeding
in New York State court (1) challenging Sweeney’s purported failure to provide him the
10
statutorily required notice of any defects in his designating and opportunity petitions and
an opportunity to cure any of the defects, or (2) seeking to compel Sweeney to provide
the same. See generally Dkt. No. 1. Similarly, plaintiff has not alleged that he was
prevented in any way from filing an Article 78 proceeding to challenge Sweeney’s conduct
and validate his designating and opportunity petitions. See id.
Therefore, the undersigned concludes that plaintiff's Fourteenth Amendment Due
Process claim fails because even assuming, without deciding, that plaintiff possessed a
constitutionally protected interest, the availability of expedited Article 78 review forecloses
a procedural due process claim. See Feliciano, 2026 WL 1295843, at *2 (citing Rivera-
Powell, 470 F.3d at 466-68); Nicholas, 2023 WL 6121164, at *6 (quoting Clark, 798 F.
Supp. 2d at 401); N.Y. C.P.L.R. § 7803. Accordingly, the undersigned recommends that
_,| plaintiff's Fourteenth Amendment Due Process claim against Sweeney in her individual
capacity for monetary damages be dismissed with prejudice and without opportunity to
amend.
b. Fourteenth Amendment: Equal Protection
“The Fourteenth Amendment's Equal Protection Clause mandates equal treatment
under the law.” Hamilton v. New York State Dep't of Corr. & Cmty. Supervision, No. 9:18-
m| CV-1312 (MAD/CFH), 2021 WL 5095962, at *17 (N.D.N.Y. Aug. 18, 2021), report and
recommendation adopted sub nom. Hamilton v. Annucci, No. 9:18-CV-01312
(MAD/CFH), 2021 WL 4316747 (N.D.N.Y. Sept. 23, 2021) (citing U.S. CONST. amend. XIV,
§ 1). “Essential to that protection is the guarantee that similarly-situated persons be
treated equally.” /d. (citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
439 (1985)). “To prove a violation of the Equal Protection Clause . . . a plaintiff must
demonstrate that he was treated differently than others similarly situated as a result of
intentional or purposeful discrimination” and “without any rational basis” /d. (first quoting
Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005); then quoting C/ubside, Inc. v. Valentin,
468 F.3d 144, 158-59 (2d Cir. 2006)).
[T]he Equal Protection Clause bars the government from selective adverse
treatment of individuals compared with other similarly situated individuals if
such selective treatment was based on impermissible considerations such
as race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person.
Hamilton, 2021 WL 5095962, at *17 (quoting Vegas v. Artus, 610 F. Supp. 2d 185, 209
(N.D.N.Y. 2009)); see also Ramsey v. Goord, 661 F. Supp. 2d 370, 397 (W.D.N.Y. 2009)
(“Establishment of an equal protection violation requires the plaintiff show purposeful
discrimination directed at an identifiable suspect class.”) (internal quotation marks and
_,| citation omitted).
“A plaintiff may bring a class-of-one claim by showing that he or she was
intentionally treated differently from others similarly situated and there is no rational basis
for the difference in treatment.” Barzee, 2022 WL 1406606, at *9 (quoting AYDM Assocs.,
205 F. Supp. 3d at 268) (internal quotation marks omitted) (quoting Village of Willowbrook
v. Olech, 528 U.S. 562, 654 (2000)). “[C]lass-of-one plaintiffs must show an extremely
m| high degree of similarity between themselves and the persons [with] whom they compare
themselves.” /d. (quoting Bill & Ted's Riveira, Inc. v. Cuomo, 494 F. Supp. 3d 238, 246
(N.D.N.Y. 2020)) (internal quotation marks and citations omitted); see a/so Hu v. City of
N.Y., 927 F.3d 81, 93 (2d Cir. 2019) (resolving uncertainty as to the “extremely high”
degree of similarity required for comparators in “class-of-one’” claims). To prove a “class-
of-one” claim:
12
[A] plaintiff must establish that he and a comparator are “prima facie
identical” by showing that “(i) 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 (ii) the similarity in circumstances and differences
in treatment are sufficient to exclude the possibility that the defendant acted
on the basis of mistake.”
Id. (quoting Hu, 927 F.3d at 92 (quoting Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir.
2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008))).
Plaintiff claims that Neilson discriminated against him on the basis of his race and
gender because he is an African-American man who was required to file his designating
petition on April 3, 2025, one day before the publicly noticed deadline on April 4, 2025.
Dkt. No. 1 at 2-3. More specifically, plaintiff alleges that he asked Nielson, “If someone
that looks like you come (sic) on the 4" of April to file their designating petition, which
_,| Stated in the booklet (sic), what would have done (sic), she told me that they would have
honored the designating petition on the 4'" of April 2025.” Id. Plaintiff interpreted this
interaction as Nielson “stated that if a person that . . . looked just like her, a Caucasian,
would come on the following day, they would have been able to file their designation
petition”. Dkt. No. 1 at 7; see id. at 9, 11. Plaintiff further claims that Sweeney and Neilson
“deliberately . . . discriminate[d] against [him] as an African American Male because they
already endorsed a white female for district 2#.” /d. at 3.
The undersigned concludes that although plaintiff's complaint asserts that, as an
African-American male, he is a member of two suspect or quasi-suspect classes, and
plaintiff alleges that Sweeney and Neilson discriminated against him based on his
membership in those suspect or quasi-suspect classes, plaintiff's complaint fails to
establish a Fourteenth Amendment Equal Protection claim. See Hamilton, 2021 WL
13
5095962, at *17 (quoting Vegas, 610 F. Supp. 2d at 209); Ramsey, 661 F. Supp. 2d at
397). Even accepting plaintiffs version of the conversation with Neilsen, the alleged
statement attributed to her is ambiguous and does not plausibly establish intentional racial
discrimination when viewed in context.
To the extent that plaintiff's complaint could potentially be interpreted as claiming
“| that Sweeney discriminated against him on the basis of his race or gender by not sending
him a notice letter informing him of any defects in his designating and opportunity petitions
or affording him an opportunity to cure any such defects, plaintiff states no facts
supporting his claim that Sweeney’s failure to act was based on his race or gender. See
Dkt. No. 1 at 7-8. To state a viable claim for denial of equal protection, a plaintiff generally
must allege “purposeful discrimination . . . directed at an identifiable or suspect class.”
_,| Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). “In the alternative, under a “class
of one” theory, plaintiff must allege that he has been intentionally treated differently from
others similarly situated, with no rational basis for the difference in treatment.”
Witherspoon v. Corey, No. 9:24-CV-0296 (MAD/DJS), 2025 WL 1836435, at *6 (N.D.N.Y.
July 3, 2025) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Allen v.
New York City Hous. Auth., No. 1:15-CV-00173 (ALC), 2016 WL 722186, at *5 (S.D.NLY.
m| Feb. 19, 2016) (quoting Marchant v. New York City Bd. of Elections, 815 F. Supp. 2d 568,
580 (E.D.N.Y. 2011) (quoting Rivera-Powell, 470 F.3d at 470)) (“To establish a
constitutional violation under the Equal Protection Clause, plaintiffs must show that a state
actor intentionally discriminated against them, either by adopting out of [discriminatory]
animus policies which are facially neutral but have a .. . discriminatory effect, or by
applying a facially neutral policy in a . . . discriminatory manner.”); Gagliardi v. Vill. of
14
Pawling, 18 F.3d 188, 193 (2d Cir. 1994) (“To establish such intentional or purposeful
discrimination, it is axiomatic that a plaintiff must allege that similarly situated persons
have been treated differently.”).
Plaintiff's accusations that “[t]hey wanted to discriminate against me because of
my [rjace,” Dkt. No. 1 at 3, and “Il was misled and ignored by the board of election and
Mary Sweeney et al, (sic) because of my race.”, id. at 7, do not support a viable claim for
denial of equal protection. See Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007)
(noting that a plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.”). Plaintiff does not allege that Sweeney mentioned or referenced his race or
his gender. See generally id. Accordingly, plaintiff fails to provide any support for his
conclusions. See Teator v. Shedroff, No. 3:25-CV-0111 (AJB/PJE), 2025 WL 3516308, at
_|*3 (N.D.N.Y. Nov. 17, 2025), report and recommendation adopted, No. 3:25-CV-111
(AJB/PJE), 2025 WL 3515830 (N.D.N.Y. Dec. 8, 2025) (recommending dismissal of the
plaintiff's complaint where the accusations amounted to baseless conclusions); Kirby v.
Spicer, No. 5:25-CV-324 (AMN/PJE), 2025 WL 3089258, at *4 (N.D.N.Y. Nov. 5, 2025),
report and recommendation adopted, No. 5:25-CV-324 (AMN/PJE), 2025 WL 3551650
(N.D.N.Y. Dec. 11, 2025) (same).
Moreover, to the extent plaintiff also seeks to proceed under a selective-
enforcement or class-of-one theory, the complaint identifies no similarly situated
comparator who received more favorable treatment. Plaintiff admits that no other white
individual(s) attempted to file a designating petition during the relevant period in question
between April 3, 2025, and April 4, 2025. See Dkt. No. 1 at 10 (“Although no physical
white candidate filed during the same period.”). Further, plaintiff does not identify or allege
15
that any individual(s) of any other race or gender attempted to file a designating petition
during the relevant period. See generally id.
Therefore, the undersigned concludes that plaintiffs Equal Protection claim
against Sweeney and Nielson in their individual capacities for monetary damages must
fail as a matter of law because plaintiff has not “demonstrate[d] that he was treated
differently than others similarly situated as a result of intentional or purposeful
discrimination.” Hamilton, 2021 WL 5095962, at *17 (quoting Phillips, 408 F.3d at 129).
Out of special solicitude to the pro se plaintiff, because it is not impossible that plaintiff
may be able to amend to set forth as sufficient claim, supported by a proper pleading
alleging actual comparator candidates, additional discriminatory statements, and/or
discriminatory Board practices, the undersigned recommends that plaintiff's Fourteenth
Amendment Equal Protection claim as alleged against Sweeney and Nielson in their
individual capacities for monetary damages be dismissed without prejudice and with
opportunity to amend.
c. First Amendment
Plaintiff claims that defendants violated his First Amendment “right to political
expression, including . . . association with voters, and dissemination of ideas central to
| the democratic process.” Dkt. No. 1 at 17. Plaintiff states that his exclusion “from the
May 2025 primary election ballot . . . deprived [him] of the opportunity to engage in core
political speech [and] denied voters the right to hear from and vote for the candidate of
their choice.” /d.
“It is well settled that the First Amendment protects the rights of candidates and
their supporters to organize, access the ballot, and vote for the candidate of their choice.”
16
Hafner v. New York State Bd. of Elections, 823 F. Supp. 3d 260, 268 (E.D.N.Y. 2026)
(quoting Tiraco v. NYSBOE, 963 F. Supp. 2d 184, 197 (E.D.N.Y. 2013)); see also McMillan
v. New York State Bd. of Elections, No. 10-CV-2502 (JG) (VVP), 2010 WL 4065434, at
“10 (E.D.N.Y. Oct. 15, 2010), aff'd, 449 F. App’x 79 (2d Cir. 2011) (“The First Amendment
does not provide candidates with a right to have their political parties listed on election
ballots, nor does it invest them with a right to use ballots as forums for political expression.
However, the First Amendment does protect the rights of candidates and their supporters
to organize, access the ballot, and vote for the candidate of their choice.” (internal
citations and quotation marks omitted).
As an initial matter, to the extent plaintiff contends that defendants “denied voters
the right to hear from and vote for the candidate of their choice[,]’ Dkt. No. 1 at 17, plaintiff
does not have standing to bring a First Amendment claim on behalf other voters. See 28
U.S.C. § 1654; Auguste v. U.S. Customs & Border Prot., No. 8:24-CV-0066 (MAD/CFH),
2024 WL 3649889, at *4 (N.D.N.Y. May 15, 2024), report and recommendation adopted,
No. 8:24-CV-0066 (MAD/CFH), 2024 WL 3548762 (N.D.N.Y. July 26, 2024) (“[A]s a pro
se plaintiff, [plaintiff] cannot represent other plaintiffs.”); Rodriguez v. Jaddie Stewart
Agency Inc., No. 08-CV-46 (JFB) (AKT) , 2009 WL 212123, at *4 (E.D.N.Y. Jan. 28, 2009)
m| (“Recognizing the lack of standing in this lawsuit . . . it is axiomatic that a pro se plaintiff
can only represent himself and may not appear on someone else's behalf.”); Thomas v.
Tesla Inc., No. 26-CV-1640 (GBD), 2026 WL 1133802, at *1 (S.D.N.Y. Apr. 24, 2026)
(citing 28 U.S.C. § 1654) (“This is because pro se litigants who are not attorneys cannot
represent others.”); U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008)
(“[A]n individual who is not licensed as an attorney may not appear on another person's
17
behalf in the other's cause.”); see also Fed. R. Civ. P. 11(a) (“Every pleading, written
motion, and other paper must be signed by . . . a party personally if the party is
unrepresented.”). Plaintiff has not demonstrated that he is an attorney. See generally
Dkt. No. 1. Therefore, plaintiff cannot represent any other individual but himself."
As plaintiff does not have standing to represent any other voters and lacks an
absolute constitutional right to appear on the ballot, plaintiff's First Amendment political
expression claim must fail. See 28 U.S.C. § 1654; U.S. ex rel. Mergent Servs., 540 F.3d
at 92; Marchant, 815 F. Supp. 2d at 578. Therefore, for the foregoing reasons, the
undersigned recommends that plaintiff's First Amendment claim be dismissed with
prejudice and without opportunity to amend.
d. Personal Involvement of Connelly, Schneider, and Jones
“[I]n order to recover damages in a civil rights action, [the] plaintiff must allege a
defendant's direct or personal involvement in the alleged constitutional deprivations, and
supervisory officials may not be held liable merely because they held a position of
authority.” Golston v. Cortese, No. 1:21-CV-914 (GTS/CFH), 2022 WL 2657290, at □□□
n.7 (N.D.N.Y. Apr. 1, 2022), report and recommendation adopted, No. 1:21-CV-914
Further, assuming, arguendo, that plaintiff did have the right to represent other individuals, plaintiff's
assertion that defendants’ actions “denied voters the right to hear from and vote for the candidate of their
choice” fails to raise a First Amendment political expression claim. “[T]he loss of the[] ability to vote for the
candidate of [your] choice, which-unlike the right to vote-is not an absolute right.” Marchant, 815 F. Supp.
2d 568, 578 (E.D.N.Y. 2011). The Supreme Court has
recognized that the rights to “vote in any manner” and “to associate for political purposes
through the ballot” are not absolute because regulation of elections is necessary for the
fair, honest, and orderly administration of elections, and election laws “invariably impose
some burden upon individual voters.” Election laws—including those that govern the
eligibility of candidates—‘inevitably affect[] . . . the individual's right to vote . . . to associate
with others for political ends.”
Id. (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citing Anderson v. Celebrezze, 460 U.S. 780,
788 (1983)).
18
(GTS/CFH), 2022 WL 2071773 (N.D.N.Y. June 9, 2022) (quoting Montes v. O'Shea, No.
1:21-CV-303 (DNH/ATB), 2021 WL 1759853, at *5 (N.D.N.Y. Apr. 6, 2021), report and
recommendation adopted, No. 1:21-CV-303, 2021 WL 1758858 (N.D.N.Y. May 4, 2021)
(citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Black v. Coughlin, 76 F.3d 72, 74
(2d Cir. 1996)). “[T]here is no special rule for supervisory liability. Instead, a plaintiff must
plead and prove ‘that each Government-official defendant, through the official's own
individual actions, has violated the Constitution.” /d. (quoting Tangreti v. Bachmann, 983
F.3d 609, 618 (2d Cir. 2020) (quoting /qba/, 556 U.S. at 676)); see also Davis v. Cnty. of
Nassau, 355 F. Supp. 2d 668, 677 (E.D.N.Y. 2005) (quoting Leeds v. Meltz, 85 F.3d 51,
53 (2d Cir. 1996)) (A “complaint must still allege particular facts indicating that an
individual defendant was personally involved in the deprivation of the plaintiff's
constitutional rights; mere ‘bald assertions and conclusions of law’ do not suffice.”). “A
complaint that essentially regurgitates the relevant ‘personal involvement’ standard,
without offering any facts indicating that, or how, an individual defendant in a supervisory
role was personally involved in a constitutional violation, cannot withstand dismissal.”
Davis, 355 F. Supp. 2d at 677 (citations omitted). “[VJague, conclusory allegations do not
satisfy the personal involvement standard.” Collins v. City Univ. of New York, No. 21 CIV.
m| 9544 (NRB), 2023 WL 1818547, at *6 (S.D.N.Y. Feb. 8, 2023) (citing Medina v. Kaplan,
No. 16-CV-7223 (KMk), 2018 WL 797330, at *6 (S.D.N.Y. 2018)).
Affording plaintiff due solicitude and reading his complaint liberally, plaintiff fails to
specify how Connelly, Schneider, and Jones were personally involved in any
constitutional violation. As stated above, plaintiff alleges that (1) on April 3, 2025,
Connelly informed plaintiff “that she would have to speak with her boss” regarding the
19
status of his designating petition; (2) on April 29, 2025, Jones informed plaintiff “that her
boss will get in contact with [him]” after he called the Board of Elections office to inquire
about the status of his designating and opportunity petitions; and (3) Schneider works in
the Troy, New York office for the Board of Elections. Dkt. No. 1 at 2, 4. Yet, none of these
actions demonstrate that Connelly, Schneider, or Jones violated plaintiff's constitutional
rights. Answering the phone or working in the Board of Elections office, without more,
does not violate plaintiff's constitutional rights.
Plaintiff further alleges that Connelly, Schneider, and Jones “were present when
the deceit was being implemented,” “did not try to stop the constitutional violations by
means of telling their bosses that were that they were discriminating against [him]
because of [his] [r]jace,” and “thus, laugh[ed] along [Jat the [a]rbitrary and [c]apricious
_,| deceit [that] was being implemented by their supervisors.” Dkt. No. 1 at 3. Affording
plaintiff due solicitude and reading his complaint liberally, these allegations suggest that
Connelly, Schneider, and Jones were present when Sweeney and Nielson discriminated
against plaintiff, observed Nielson speaking with plaintiff, were aware of Sweeney and
Nielson violating plaintiff's constitutional rights, and condoned the constitutional violations
by laughing and failing to intervene in the violations.
Plaintiff does not contend that Connelly, Schneider, or Jones personally
discriminated against him or violated his constitutional rights. See generally id. Laughing
does not amount to any constitutional violation. See Dkt. No. 1 at 3. Moreover, accepting
plaintiff claim as true, that Connelly, Schneider, and Jones “did not try to stop the
constitutional violations” being perpetrated by Sweeney and Nielson, plaintiff has not
established that Connelly, Schneider, or Jones had a duty to intervene and failed to act
20
upon that duty when they witnessed or learned of plaintiff's discrimination.'* /d. at 3.
Even if plaintiff could demonstrate that Connelly, Schneider, and Jones had a duty to
intervene — something he has not shown — he cannot sue them for failing to intervene
when he has failed to demonstrate an underlying constitutional violation. See Matthews
v. City of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012) (“[A] failure to intervene
“| claim is contingent upon the disposition of the primary claims underlying the failure to
intervene claim.”); see also Forney v. Forney, 96 F. Supp. 3d 7, 13 (E.D.N.Y. 2015)
(same).
Therefore, the undersigned concludes that the plaintiff's Section 1983 claims
against Connelly, Schneider, and Jones in their individual capacities for monetary
damages must fail because he fails to allege personal involvement in any of the alleged
_,| constitutional violations and amendment is unwarranted as he has not established that
Connelly, Schneider, and Jones had a duty to intervene. See Golston, 2022 WL 2657290,
at *6, n.7; Waheed, 2026 WL 539731, at *3 (citing Town of Castle Rock, Colo., 545 U.S.
at 755-56). Accordingly, the undersigned recommends dismissing plaintiff's Section 1983
12 “Government officials generally have no federal constitutional duty to investigate or otherwise protect an
individual from harm.” Waheed v. Police Dep’t 19th Precinct (NYPD), No. 25-CV-9101 (LLS), 2026 WL
539731, at *3 (S.D.N.Y. Feb. 26, 2026) (citing Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 755-
56 (2005)); see also DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989);
Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d Cir. 1994). However,
[tIhere are two recognized exceptions to this general rule: (1) “when the State takes a
person into its custody and holds him there against his will, the Constitution imposes upon
it a corresponding duty to assume some responsibility for his safety and general well-
being,” DeShaney, 489 U.S. at 199-200; or (2) when government officials affirmatively
create or increase danger to the plaintiff, see, e.g., Matican v. City of New York, 524 F.3d
151, 155 (2d Cir. 2008). In this context, the plaintiff must also show that a government
official's “behavior was ‘so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” /d.
Id. at *3-4. The undersigned concludes that neither exception applies; thus, even if, arguendo, plaintiff were
able to demonstrate that Sweeney or Neilson violated his constitutional rights, Connelly, Schneider, and
Jones did not have an affirmative duty to intervene on his behalf, because plaintiff was not in custody and
does not demonstrated that the alleged misconduct “shock[ed] the temporary conscience.”. See id.
21
claims against Connelly, Schneider, and Jones in their individual capacities for monetary
damages with prejudice and without opportunity to amend.
2. Monell
Plaintiff's complaint also seeks to proceed against the Board of Elections office in
Troy, New York, and alleges that at all relevant times, Sweeney, Nielson, Connelly,
Schneider, and Jones were officers and employees of the Board of Elections office in
Troy, New York. See generally Dkt. No. 1. The Board of Elections office in Troy, New
York is the main office for the Rensselaer County Board of Elections.'? At this stage of
the pleadings, for purposes of the initial review, the Court will accept that the Rensselaer
County Board of Elections is a municipal arm of Rensselaer County.'* See Colon v.
Monroe Cnty. Bd. of Elections, No. 6:20-CV-06465 (EAW), 2021 WL 1139854, at *5, n. 1
_,| (W.D.N.Y. Mar. 25, 2021) (noting that the Monroe County Board of Elections is a municipal
entity). Plaintiff has not named Rensselaer County as a defendant. See generally Dkt.
No. 1. As such, to the extent that plaintiff seeks to proceed against the Rensselaer County
Board of Elections for monetary damages, plaintiff can only proceed with his Section 1983
claims against Rensselaer County and pursuant to the Supreme Court’s holding in Monell
v. Department of Social Services, 436 U.S. 658 (1978).
tri “Municipalities may be sued directly under [Section] 1983” pursuant to Monell “for
constitutional deprivations inflicted upon private individuals pursuant to governmental
custom, policy, ordinance, regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393,
13 RENSSELAER COUNTY, NEW YORK, “Elections” https:/Awww.rensco.com/429/Elections (last visited June
Court notes that in performing the specific function at issue here, administrating ballot access
requirements, the Board may be acting as an arm of the State, which in turn would implicate New York
State’s Eleventh Amendment Immunity. However, the undersigned need not reach this issue at this stage.
22
397 (2d Cir. 1983) (citing Monell, 436 U.S. at 690-91). “To set forth a cognizable claim for
municipal liability under § 1983, a plaintiff must plead that a deprivation of his
constitutional rights was ‘caused by a governmental custom, policy, or usage of the
municipality.” Dougal v. Lewicki, No. 1:23-CV-1167 (DNH/CFH), 2023 WL 6430586, at
“10 (N.D.N.Y. Oct. 3, 2023), report and recommendation adopted, 2023 WL 7013384
(N.D.N.Y. Oct. 25, 2023) (quoting Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.
2012) (citing Monell, 436 U.S. at 690-91)). “Municipalities may only be held liable when
the municipality itself deprives an individual of a constitutional right; it ‘may not be held
liable on a theory of respondeat superior.” /d. (quoting Jeffes v. Barnes, 208 F.3d 49, 56
(2d Cir. 2000)). An “official policy or custom” can be pleaded as follows:
(1) a formal policy officially endorsed by the municipality; (2) actions taken
by government officials responsible for establishing municipal policies
related to the particular deprivation in question; (3) a practice so consistent
and widespread that it constitutes a ‘custom or usage’ sufficient to impute
constructive knowledge of the practice to policymaking officials; or (4) a
failure by policymakers to train or supervise subordinates to such an extent
that it amounts to ‘deliberate indifference’ to the rights of those who come
in contact with the municipal employees.
Id. (quoting Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y.
2005)) (internal citations omitted); see also Santos v. New York City, 847 F. Supp. 2d 573,
576 (S.D.N.Y. 2012) (explaining that, to state an official policy claim under Monell, the
tt
plaintiff “must do more than simply state that a municipal policy . . . exists”); Coleman v.
Cnty. of Suffolk, 685 F. App’x 69, 72 (2d Cir. 2017) (summary order) (“Where . . . the
conduct of individual defendant officers does not violate the plaintiff's constitutional rights,
the municipality is generally not liable for a policy or practice pursuant to which the
conduct was performed.”); Fleming v. City of New York, No. 18-CV-4866 (GBD/JW), 2023
WL 1861223, at *1 (S.D.N.Y. Feb. 9, 2023) (noting that, in some situations, a municipality
23
may be held liable under Monell even if a plaintiff is unable to establish liability against
individual defendants).
However, it is “well-established that ‘Monell does not provide a separate cause of
action . . . [rather,] it extends liability to a municipal organization where that organization’s
failure to train, or the policies or customs that it has sanctioned, led to an independent
constitutional violation.” Stemmons v. Glens Falls Hosp., No. 1:25-CV-0846 (GTS/ML),
2026 WL 1041873, at *6 (N.D.N.Y. Feb. 26, 2026), report and recommendation adopted
sub nom. Stemmons v. Glens Falls Hosp., No. 1:25-CV-0846 (GTS/ML), 2026 WL 858577
(N.D.N.Y. Mar. 30, 2026) (quoting Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006)). “[A] Monell claim cannot succeed without an underlying [constitutional] violation.”
Id. (quoting Mastromonaco v. City of Westchester, 779 F. App’x 49, 51 (2d Cir. 2019)
(summary order); see also DeRaffele v. City of New Rochelle, 15-CV-0282, 2017 WL
2560008, at *6 (S.D.N.Y. June 13, 2017) (citing Sega/, 459 F.3d at 219) (“It is well-
established that a Monell claim cannot lie in the absence of an underlying constitutional
violation.”).
a. Rensselaer County Board of Elections
To the extent that plaintiff seeks to proceed against the Rensselaer County Board
Of Elections under Monell, the proper defendant is the municipality itself, Rensselaer
County. See Batista, 702 F.2d at 397 (citing Monell, 436 U.S. at 690-91). However, even
if plaintiff had properly named Rensselaer County and alleged that his constitutional rights
were violated pursuant to an official Rensselaer County policy, a persistent and
widespread custom or practice, failure to train or supervise, or because a policy-making
Official’s deliberate conduct, any such claim against Rensselaer County still fail because
24
plaintiffs complaint has not established any underlying constitutional violation. See
Dougal, 2023 WL 6430586, at *10 (quoting Dorsett-Felicelli, Inc., 371 F. Supp. 2d at
194):see also Stemmons, 2026 WL 1041873, at *6 (quoting Mastromonaco, 779 F. App’x
at 51); Segal, 459 F.3d at 219 (“Because the district court properly found no underlying
constitutional violation, its decision not to address the municipal defendants’ liability under
“| Monell was entirely correct.”); Dotson v. City of Syracuse, No. 5:18-CV-0750 (MAD/ATB),
2019 WL 2009076, at *11 (N.D.N.Y. May 7, 2019) (citing Matican v. City of New York, 524
F.3d 151, 154 (2d Cir. 2008)) (“[C]ourts have found that a Monell claim is generally
foreclosed when a plaintiff has suffered no constitutional violation at the hands of an
individual defendant.”)."®
As written, plaintiff's complaint (1) improperly names an arm of the municipality
_,/rather than the municipality itself; (2) fails to allege any underlying constitutional violation;
and (3), in turn, fails to allege any violation of his constitutional rights was due to an official
Rensselaer County policy, persistent and widespread custom or practice, a failure to train
or supervise, or because a policy-making official’s deliberate conduct deprived him of
constitutional rights.'© Therefore, it is recommended that to the extent plaintiff seeks to
raise claims against the Rensselaer County Board of Elections, such claims be dismissed
m| Without prejudice and without opportunity to amend as against the Rensselaer County
|n addition, “[A] municipality may not be held liable under 1983 ‘solely because it employs a tortfeasor.”
Mulqueen v. Herkimer Cnty. Child Protective Servs., No. 6:22-CV1-301 (TJM/ATB), 2023 WL 4931679, at
*6 (N.D.NLY. Aug. 2, 2023), report and recommendation adopted, No. 6:22-CV-1301 (BKS/MJK), 2024 WL
756833 (N.D.N.Y. Feb. 23, 2024) (citing Cowan v. City of Mt. Vernon, 95 F. Supp. 3d 624, 636 (S.D.N.Y.
2015) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997)); Dougal, 2023 WL 6430586, at
“10 (quoting Jeffes, 208 F.3d at 56).
16 Leave to amend his Monell claim is based on this Court granting leave to amend the underlying
constitutional claims as against the individually-named defendants as identified supra.
25
Board of Elections, but with opportunity to amend as against Rensselaer County pursuant
to Monell.
b. Individual Defendants — Official Capacity
To the extent plaintiff seeks to name Sweeney, Nielson, Connelly, Schneider, and
Jones in their official capacities, any such claim is duplicative of any claim he could set
against the municipality. See Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir.
2012) (“A claim against a municipal officer in his official capacity is “in effect a claim
against the governmental entity itself.”); Petruso v. Schlaefer, 474 F. Supp. 2d 430, 441
(E.D.N.Y. 2007), aff'd, 312 F. App’x 397 (2d Cir. 2009) (summary order); Alvarado v.
Westchester Cnty., 22 F. Supp. 3d 208, 213-14 (S.D.N.Y. 2014). Accordingly, the
undersigned recommends that plaintiffs claims against Sweeney, Nielson, Connelly,
_,| Schneider, or Jones’ in their official capacities for monetary damages be dismissed with
prejudice and without opportunity to amend.
3. Fifteenth Amendment
Plaintiff argues that defendants’ conduct violated his Fifteenth Amendment rights.
See Dkt. No. 1 at 5, 11, 14; Dkt. No. 1-3 at 1. The Fifteenth Amendment provides that
“[t]ne rights of citizens of the United States to vote shall not be denied or abridged by the
mi| United States or by any State on account of race, color, or previous condition of servitude.”
U.S. CONST. amend. XV.
The undersigned concludes that plaintiff's Fifteenth Amendment claim must fail
because plaintiff's complaint fails to allege any facts demonstrating that any defendant
denied or interfered with his right to vote. See generally Dkt. No. 1; see a/so FED. R. Civ.
P. 8(a)(2) (providing that a pleading which sets forth a claim for relief shall contain, among
26
other things, “a short and plain statement of the claim showing that the pleader is entitled
to relief.”). Rather, plaintiff's complaint only raises claims regarding filing documents with
the Rensselaer County Board of Elections and his attempt to run for office on the Troy
City Council. See id. Although plaintiff's complaint references the right to vote and alleges
that defendants attempted to suppress both his right to vote and the larger electorate’s
right to vote, none of his allegations suggest a cause of action relating to the right to vote.
See id. at 3, 5, 10-12, 16-17. Accordingly, the undersigned recommends that plaintiff's
Fifteenth Amendment claims be dismissed with prejudice and without leave to amend.
4. Section 2 of the Voting Rights Act of 1965
Plaintiff also alleges that defendants’ actions violated his rights under Section 2 of
the Voting Rights Act of 1965. See generally Dkt. No. 1. Section 2 of the Voting Rights
_,|Act, as amended in 1982, states
(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political
subdivision in a manner which results in a denial or abridgment of the
right of any citizen of the United States to vote on account of race or
color . . . aS provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of
circumstances, it is shown that the political processes leading to
nomination or election in the State or political subdivision are not equally
open to participation by members of a class of citizens protected by
m subsection (a) in that its members have less opportunity than other
members of the electorate to participate in the political process and to
elect representatives of their choice. The extent to which members of a
protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: Provided,
That nothing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the
population.
Louisiana v. Callais, 146 S. Ct. 1131, 1153 (2026) (quoting 52 U.S.C. § 10301).
27
Affording plaintiff due solicitude and reading his complaint liberally, the
undersigned concludes that plaintiff fails to raise a claim under Section 2 of the Civil
Rights Act of 1965 because, as with plaintiff's Fifteenth Amendment claim, Section 2
addresses an individual’s right to vote and seeks to prevent discriminatory voting
practices, generally. See 52 U.S.C. § 10301. Plaintiff's complaint fails to state any claims
“lin this regard. See generally Dkt. No. 1; see a/so FED. R. Civ. P. 8(a)(2). Plaintiff's
complaint only raises claims regarding his attempt to get on the Democratic Party primary
ballot to run for office for the Troy City Council. See id. Plaintiff conflates his right to vote
with his right to run for public office. Therefore, the undersigned recommends that
plaintiff's claim pursuant to Section 2 of the Civil Rights Act of 1965 be dismissed with
prejudice and without opportunity to amend.
IV. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed without the Court granting
leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Romano v. Lisson, 711 F. App’x 17, 19 (2d Cir. 2017)
(summary order) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quotation
omitted)). “However, if the problems with a complaint are ‘substantive’ rather than the
| fesult of an ‘inadequately or inartfully pleaded’ complaint, an opportunity to re-plead would
be ‘futile’ and ‘should be denied.” Edwards v. Penix, 388 F. Supp. 3d 135, 144-45
(N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Here, the plaintiff's Fourteenth Amendment Due Process claim for monetary
damages against Sweeney cannot be cured by amendment because New York State
provides an adequate state remedy through an Article 78 proceeding. Likewise, the
28
defects in plaintiff's claims against: the individual defendants in their individual and official
capacities for monetary damages and for declaratory and injunctive relief, all individual
defendants alleging violations of his First, Fifth, Fifteenth Amendment rights, as well as
pursuant to Section 2 of the Voting Rights Act of 1965, are substantive and cannot be
cured by a better pleading. See Edwards, 388 F. Supp. 3d at 144-45 (quoting Cuoco,
F.3d at 112). It is recommended that these claims be dismissed with prejudice and
without opportunity to amend. Similarly, the plaintiff's claims against the Rensselaer
County Board of Elections for monetary damages and for declaratory and injunctive relief,
are substantive and cannot be cured by a better pleading. However, the undersigned
recommends dismissing this claim without prejudice and without opportunity to amend as
against the Rensselaer County Board of Elections, but with opportunity to amend as
against Rensselaer County pursuant to Monell. Conversely, plaintiff's Fourteenth
Amendment Equal Protection claim against Sweeny and Neilson in their individual
capacities for monetary damages and declaratory and injunctive relief relating to his
Fourteenth Amendment Equal Protection claim can potentially be cured by a better
pleading. It is recommended that plaintiff's Fourteenth Amendment Equal Protection
claims be dismissed without prejudice and with opportunity to amend.
tn IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiffs application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is
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RECOMMENDED, that plaintiff's Fourteenth Amendment Due Process claim
against Sweeney in her individual capacity for monetary damages (Dkt. No. 1) be
DISMISSED with prejudice and without opportunity to amend; and it is further
RECOMMENDED, that plaintiff's Fourteenth Amendment Equal Protection claim
against Sweeney and Nielson in their individual capacities (Dkt. No. 1) be DISMISSED
"| without prejudice and with opportunity to amend, if possible, as set forth supra; and
it is further
RECOMMENDED, that plaintiff's Fifth Amendment Due Process claim against all
individual defendants (Dkt. No. 1) be DISMISSED with prejudice and without
opportunity to amend, and it is further
RECOMMENDED, that plaintiffs Fourteenth Amendment Due _ Process,
Fourteenth Amendment Equal Protection, and First Amendment claims against Connelly,
Schneider, and Jones in their individual capacities (Dkt. No. 1) be DISMISSED with
prejudice and without opportunity to amend; and it is further
RECOMMENDED, that plaintiff's First Amendment claims against Sweeney and
Neilson in their individual capacities (Dkt. No. 1) be DISMISSED with prejudice and
without opportunity to amend; and it is further
tri RECCOMENDED, that plaintiff's First and Fourteenth Amendment claims against
Rensselaer County Board of Elections (Dkt. No. 1) be DISMISSED without prejudice
and without opportunity to amend as against the Rensselaer County Board of
Elections, but with leave to amend as against Rensselaer County pursuant to Monell:
and it is further
30
RECOMMENDED, that all claims against the individual defendants in their official
capacities (Dkt. No. 1) be DISMISSED with prejudice and without opportunity to
amend, and it is further
RECOMMENDED, that plaintiff's Fifteenth Amendment and Section 2 of the Voting
Rights Act of 1965 claims(Dkt. No. 1) be DISMISSED with prejudice and without
opportunity to amend; and it is further
RECOMMENDED, that, if the District Judge adopts this Report-Recommendation
& Order, plaintiff be afforded thirty (30) days from the filing date of the Order adopting the
Report-Recommendation & Order to file an amended complaint,'’ and if plaintiff does not
timely files an amended complaint, the matter be closed and judgment entered dismissing
the matter without prejudice, without need for further order of the Court; and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on plaintiff in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which
to file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
m| DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 6(a), 72.'8
"7 If the District Judge permits plaintiff to file an amended complaint and plaintiff chooses to so file, any
amended complaint must be complete pleading which will supersede and replace the original complaint in
its entirety. It may not incorporate by reference any portion of the original complaint. It may not reallege
any claims that the District Judge dismisses with prejudice.
"8 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)
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Dated: July 23, 2026
Albany, New York
fem
Paul J. Evangelista
U.S. Magistrate Judge
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See FeED.R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
See id. § 6(a)(1)(c).
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