The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Jason-Lamar Eustache,
Plaintiff,
v. 1:26-CV-1430
(MAD/MJK)
Discover Financial Services,
Defendants.
_____________________________________________________________________
Jason-Lamar Eustache, pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Mae A. D’Agostino, U.S. District Court Judge
ORDER and REPORT-RECOMMENDATION
Eustache commenced this action on July 24, 2026, by filing a
Complaint. (Dkt. 1). On July 24 2026, Eustache filed an application to
proceed in forma pauperis (“IFP” Application). (Dkt. 2). The Clerk has
sent the Complaint and IFP Application to the Court for review.
I. IFP APPLICATION
Eustache declares in his IFP application that he is unable to pay
the filing fee. (Dkt. 3). After reviewing Eustache’s application, this
Court finds that he is eligible for IFP status.
II. BACKGROUND
The Court assumes familiarity with the facts of this case which
will be incorporated in the Court’s analysis where necessary.
III. STANDARD OF REVIEW
Courts must consider the sufficiency of the allegations set forth in
the Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. Section
1915(e)(2) of Title 28 of the United States Code directs that, when a
plaintiff seeks to proceed IFP, “the court shall dismiss the case at any
time if the court determines that – . . . (B) the action . . . (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).
Similarly, under 28 U.S.C. § 1915A, a court must review any
“complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity”
and must “identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or . . . seeks
monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(a)-(b). The term “prisoner” includes pretrial
detainees. 28 U.S.C. § 1915A(c).
Second Circuit jurisprudence suggests that 28 U.S.C. §
1915(e)(2)(B)’s review of pro se complaints is a two-step inquiry.
At step one, courts apply the traditional special solicitude afforded
to pro se plaintiffs. See, e.g., Rosa v. Doe, 86 F.4th 1001, 1007 (2d Cir.
2023). Indeed, courts are “obligated to afford a special solicitude to pro
se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). “The
solicitude afforded to pro se litigants takes a variety of forms. It most
often consists of liberal construction of pleadings” and “motion papers.”
Id. (cleaned up). So, at step one, courts must “accept all of the facts
alleged in the complaint as true and draw all inferences in the
plaintiff’s favor.” White v. Schmidt, No. 22-1267, 2024 WL 1266245, at
*2 (2d Cir. 2024) (summary order) (quoting Harnage v. Lightner, 916
F.3d 138, 140-41 (2d Cir. 2019)). And once the court has done so, it must
then construe the pro se submission “to raise the strongest arguments
that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (per curiam) (cleaned up).
At step two, courts subject the liberally construed pleading to Rule
8’s pleading standard. See, e.g., Sykes v. Bank of Am., 723 F.3d 399, 403
(2d Cir. 2013) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2005) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when affirming a
district court’s dismissal of the plaintiff’s complaint under 28 U.S.C. §
1915); see also Edwards v. Erfe, 588 F. App’x 79, 80 (2d Cir. 2015)
(summary order) (citing Sykes and affirming the District Court’s sua
sponte dismissal of a prisoner rights case); Hirsch v. Rochester City
Police Dep’t, 578 F. App’x 49, 50 (2d Cir. 2014) (summary order) (same
in a civil rights case); Sheehy v. Brown, 335 F. App’x 102, 103-04 (2d
Cir. 2009) (summary order) (citing Iqbal and affirming the District
Court’s dismissal of a claim under 20 U.S.C. § 1915(e)(2)).
While the Second Circuit has never formally stated that Rule 8’s
pleading standard applies, the Court infers that the Second Circuit has
adopted that position. To arrive at this conclusion, the Court focuses on
two pieces of evidence. First, the Circuit has cited Iqbal and Twombly—
which clarified Rule 8s pleading standard. See Sykes, 723 F.3d at 403.
Second, the other circuit courts have authorized district courts to apply
the Rule 12(b)(6) standard when reviewing claims under § 1915(e)(2)(B).
See Herrera v. Agents of Pennsylvania Bd. of Prob. & Parole, 132 F.4th
248, 254 n.5 (3d Cir. 2025) (applying Rule 12(b)(6)’s standard to §
1915(e)(2)(B) review); Martin v. Duffy, 858 F.3d 239, 248 (4th Cir. 2017)
(same); Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam)
(same); Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (same);
Coleman v. Lab. & Indus. Rev. Comm’n of Wisconsin, 860 F.3d 461, 468
(7th Cir. 2017) (same); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
Cir. 2012) (same); Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007)
(same); Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (same).
Nothing in the Second Circuit’s jurisprudence leads this Court to
believe that it would break stride with eight other circuit courts. This
evidence, altogether, leads this Court to believe that the Second Circuit
approves of this Court’s application of Rule 12(b)(6)’s standard to §
1915(e)(2)(B) reviews after applying special solicitude to the pro se
submission.
When applying Rule 8 to pleadings, the Court must determine if a
claim is facially plausible. See Iqbal, 556 U.S. at 678 (2009) (citing
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. This means that pro se complaints,
even while liberally construed, “must plead ‘enough facts to state a
claim to relief that is plausible on its face.”’ Sykes, 723 F.3d at 403
(quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678. Rule 8 “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
In sum, the Court’s role, when reviewing a Complaint under
§ 1915(e)(2)(B), is two-fold. First, the Court must draw all inferences in
the pro se plaintiff’s favor and construe their submission to raise the
strongest possible argument. Second, the Court must then review the
Complaint and determine if it plausibly alleges enough facts for the
Court to reasonably infer that the defendant would be liable for the
alleged misconduct.
IV. DISCUSSION
The Court recommends dismissal of the Complaint because it fails
to plausibly state a claim against Defendant.
Pleadings must contain, among other things, “a short and plain
statement of the claim showing that the pleader is entitled to relief …”
Fed. R. Civ. P. 8(a)(2). “The purpose of” Rule 8 “is to give fair notice of
the claim being asserted so” adverse parties have “the opportunity to
file a responsive answer, prepare an adequate defense, and determine
whether the doctrine of res judicata is applicable.” Flores v. Graphtex,
189 F.R.D. 54, 55 (N.D.N.Y. 1999) (cleaned up). The rule also requires
the pleading to include “a short and plain statement of the grounds for
the court’s jurisdiction” and “a demand for the relief sought[.]” Fed. R.
Civ. P. 8(a)(1), (3). “Although ‘no technical form is required,’ the Federal
Rules make clear that each allegation contained in the pleading ‘must
be simple, concise, and direct.’” Cole v. Smrtic, No. 24-CV-847, 2024 WL
4870495, at *2 (N.D.N.Y. Nov. 21, 2024) (quoting Fed. R. Civ. P. 8(d)).
Allegations “so vague as to fail to give the defendants adequate notice of
the claims against them” are subject to dismissal. Sheehy v. Brown, 335
F. App’x 102, 104 (2d Cir. 2009) (summary order). To survive dismissal
for failure to state a claim, a complaint must contain sufficient factual
matter, accepted as true, to state a claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements
do not suffice.” Ashcroft, 556 U.S. at 678 (cleaned up).
Although Eustache alleges a myriad of federal statutes as the
basis for federal question jurisdiction, the Complaint lacks sufficient
detail to give Defendant adequate notice of the claims against it. The
Complaint alleges that “defendant [d]efaulted on [Eustache’s]
negotiable instrument/letter of credit & bill of exchange. After default,
they continued to bill me without correcting the books and reporting to
my credit bureaus of fulfilled payment.” (Dkt. 1, Compl., pg. 5).1 The
Complaint further alleges that Eustache “sent a dispute letter and they
still persisted when [Eustache] called and they pretend that no dispute
was initiated.” (Id.). Beyond that, the Complaint does not allege any
factual predicate for Eustache’s claims. Stated differently, Eustache’s
Complaint is an “unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft, 556 U.S. at 678. And that is not enough to state a
claim. See, e.g., Lesson v. Jane Doe, No. 25-CV-00188 (AMN/TWD), 2025
1 Page references are to the page numbers assigned by the CM/ECF pagination
system.
WL 1291533 (N.D.N.Y. May 5, 2025) (Adopting Report and
Recommendation which dismissed a plaintiff’s excessive force claim
because that plaintiff failed to “identify what force” was used against
him or “how it was excessive.”).
The Court therefore recommends that the Complaint be dismissed
without prejudice and with leave to amend.
V. OPPORTUNITY TO AMEND
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
Here, the Court recommends that Eustache be granted leave to
file an amended pleading that alleges sufficient facts to give Defendant
notice of the legally cognizable claims against it. Further, if the District
Court approves this Order and Report-Recommendation and allows
Eustache to submit a proposed amended complaint, Eustache should be
warned that any amended pleading must be a complete and separate
pleading. Eustache must state all his claims in the new pleading and
may not incorporate by reference any part of his original complaint.
VI. CONCLUSION
WHEREFORE, based on the findings above, it is hereby
ORDERED, that Eustache’s motion to proceed in forma pauperis
(Dkt. 2) is GRANTED, and it is further
RECOMMENDED that the Complaint (Dkt. 1) be DISMISSED
WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is
further
ORDERED that the Clerk provide Eustache with a copy of this
Order and Report-Recommendation, along with copies of the
unpublished decisions cited herein in accordance with the Second
Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)
days within which to file written objections to the foregoing report.1
Such objections shall be filed with the Clerk of the Court. FAILURE
TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984
F.2d 85 (2d Cir. 1998) (citing Small v. Sec’y of Health and Human
Serus., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72.
Dated: September 8, 2026 Mehta
14:21:20-04'00"
Hon. Mitchell J. Katz
U.S. Magistrate Judge
11
2024 WL 1266245
sua sponte dismissals of two federal lawsuits (Mae A.
2024 WL 1266245 D'Agostino, District Judge), each pursuant to the Rooker-
Only the Westlaw citation is currently available. Feldman doctrine. White's appeals have been considered in
United States Court of Appeals, Second Circuit. tandem and consolidated for disposition. In 2015, White was
convicted in New York state court of grand larceny and fraud,
Paul WHITE, Plaintiff-Appellant, stemming from a scheme to defraud investors in a North
V. Carolina real estate development. See Spota v. White, No.
Sandra SCHMIDT, aka Sandra Kroger Schmidt, 2968 1-12, 2016 WL 6427362, at *2, 4 (N.Y. Sup. Ct. Suffolk
aka Sandra K. Schmidt, Defendant-Appellee, Caty. Oct. 28, 2016) (explaining the background of the
Pat Doe, (110), Defendants. criminal case in a decision on a civil forfeiture proceeding).
Paul White, Plaintiff-Appellant The Supreme Court, Suffolk County, awarded $2.975 million
> > in restitution to his victims, who included Sandra Schmidt,
v. Teodocia Santos, and Ella and Albert Abney (the “Abneys”).
Teodocia Santos, Ella Abney, Personally Id. at *2. White's appeal of the criminal judgment is, as of the
and as Executrix of the Estate of Albert time of writing, still pending.
Abney, Pat Doe, Defendants-Appellees. □
In 2014, the Suffolk County District Attorney's Office
* The Clerk of Court is directed to consolidate these brought a civil forfeiture action against White and obtained a
appeals for purposes of decision. $2.4 million judgment. /d. at *4, 9. After the judgment was
entered, White retained an attorney who obtained a decision
22-1267, 22-1911 in a North Carolina court, which he claims held that the
| investors had received their bargained-for-benefit, consisting
March 26, 2024 of the validly deeded ownership of the property.
Appeals from judgments of the United States District Court In 2017, White sued Schmidt and the Abneys in the Eastern
for the Northern District of New York (Mae A. D'Agostino, District of New York, claiming that they had provided false
District Judge). statements to the Suffolk County District Attorney's Office
and had testified falsely at grand jury proceedings and at his
UPON DUE CONSIDERATION, IT IS HEREBY criminal trial, which resulted in their unjust enrichment by
ORDERED, ADJUDGED, AND DECREED that the virtue of therestitution judgment that had been entered in their
judgments of the district court are AFFIRMED IN PART favor. In two different orders, the Eastern District dismissed
and VACATED IN PART and REMANDED. the action, reasoning that the defendants were entitled to
. witness immunity, and in the alternative, the court lacked
Attorneys and Law Firms subject matter jurisdiction to entertain the unjust enrichment
FOR PLAINTIFF-APPELLANT: Paul White, pro. se, claim under Rooker-Feldman. See generally White v. Abney,
Coxsackie, NY. No. 17-cv-4286, 2020 WL 5848647 (E.D.N.Y. Sept. 30,
2020); White v. Abney, No. 17-cv-4286, 2021 WL 1176218
FOR DEFENDANTS-APPELLEES: No appearance. (E.D.N.Y. Mar. 29, 2021).
PRESENT: ROBERT D. SACK, WILLIAM J. NARDINI, In 2021, White filed the actions underlying these appeals. He
MYRNA PEREZ, Circuit Judges. sued Schmidt in the Northern District of New York, claiming
that the restitution judgment had been satisfied by the North
Carolina decision and that she had been unjustly enriched by
SUMMARY ORDER asum that he had separately paid to her. In a separate action,
he sued Santos and the Abneys, raising substantially identical
claims.
ok Ok
In 2022, the district court sua sponte dismissed each
Plaintiff-Appellant Paul White, pro se and incarcerated, action as barred under the Rooker-Feldman doctrine and,
appeals from the April 26, 2022, and August 1, 2022,
2024 WL 1266245
alternatively, by collateral estoppel or res judicata, based on _—In the present cases, White seeks a declaratory judgment
the preclusive effect of the Eastern District's earlier Rooker- that the Suffolk County Court restitution judgments against
Feldman procedural holding. See generally White v. Schmidt, him were satisfied by the North Carolina decision, and a
No. 21-cv-854, 2022 WL 1222805 (N.D.N.Y. Apr. 26, 2022); return of the money he has paid to the defendants based on a
White v. Santos, No. 21-cv-417, 2022 WL 3025723 (N.D.N.Y. theory of unjust enrichment distinct from the theory of unjust
Aug. 1, 2022). White timely appealed. We assume the parties’ enrichment White relied on in White v. Abney. However,
familiarity with the case. because White allegedly paid the defendants a partial
restitution before the North Carolina decision was issued, and
We review de novo a sua sponte dismissal of a complaint, the North Carolina decision was issued before White initiated
including a dismissal based on collateral estoppel, res White v. Abney, White could have included his current claims
judicata, or lack of subject matter jurisdiction under Rooker- for declaratory relief and unjust enrichment against Schmidt
Feldman. Meadows vy. United Servs., Inc., 963 F.3d 240, 243 and the Abneys in White v. Abney. Accordingly, White's
(2d Cir. 2020) (sua sponte dismissal); Comput. Assocs. Int'l, claims against Schmidt and the Abneys are barred by res
Inc. Altai, Inc., 126 F.3d 365, 368 (2d Cir. 1997) (collateral = judicata.
estoppel and res judicata), Edwards v. McMillen Cap., LLC,
952 F.3d 32, 35 (2d Cir. 2020) (Rooker-Feldman). When — Santos, however, was not included as a defendant in White v.
reviewing a sua sponte dismissal, we “accept all of the facts | Abney, so claim preclusion cannot apply to White's current
alleged in the complaint as true and draw allinferencesinthe — claims against Santos. See N. Assurance, 201 F.3d at 87.
plaintiff's favor.” Harnage v. Lightner, 916 F.3d 138, 140-41 We therefore consider whether White's claims against Santos
(2d Cir, 2019). I are barred under the Rooker-Feldman doctrine or collateral
estoppel, as the district court found. We determine that they
1 oo are not. Under the Rooker-Feldman doctrine, “federal district
Unless otherwise indicated, case quotations omit . .
: courts lack jurisdiction over suits that are, in substance,
all internal quotation marks, alteration marks, appeals from state-court judgments.” Hoblock y. Albany Cnty.
footnotes, and citations. Ba. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). For a federal
Recognizing the “special solicitude” this Court must afford court to abstain under Rooker-Feldman,
pro se litigants, see Rosa v. Doe, 86 F.4th 1001, 1007 (2d
Cir. 2023), we nevertheless conclude that White's claims
against Schmidt and the Abneys are barred by res judicata, *3 (1) the federal-court plaintiff must
or claim preclusion. “[C]laim preclusion ... operates in two have lost in state court; (2) the plaintiff
ways: (1) it bars claims that were brought and decided in must complain of injuries caused by a
a prior litigation; and (2) it bars all other claims relating to state-court judgment; (3) the plaintiff
the same transaction against the same defendant that could must invite district court review and
have been brought at that time.” N. Assurance Co. of Am. rejection of that judgment; and (4)
Square D Co., 201 F.3d 84, 87 (2d Cir. 2000). White v. the state-court judgment must have
Abney involved claims by White against Schmidt and the been rendered before the district court
Abneys, so claim preclusion bars him from now raising any proceedings commenced.
claims “relating to the same transaction ... that could have
been brought” at the time he filed suit in White v. Abney.
Id. White alleges that the following had occurred before he Plymouth Venture Partners, II, LP. v. GTR Source, LLC, 988
filed his complaint □ White v. Abney the Suffolk County F.3d 634, 641 (2d Cir. 2021). Here, the relevant state-court
Court entered restitution judgments in favor of Santos, the judgment is the criminal restitution judgment, which White
Abneys, and Schmidt against White, (2) White obtained a alleges has been satisfied, not the civil forfeiture judgment.
from the North Carolina Superior Court determining The civil forfeiture court did not address White's challenge to
that the defendants in these cases held valid deeds for the vo
□ the restitution order, explaining instead that White's challenge
properties at Issue, and (3) White paid approximately $31,000 was an improper collateral attack on the criminal conviction,
each to Schmidt and the Abneys in partial satisfaction of the which had to be raised instead on direct criminal appeal.
restitution judgments. See Spota, 2016 WL 6427362, at *4. Thus, if White is
2024 WL 1266245
complaining of an injury from a state-court judgment, the do not affirm the judgment based on the preclusive effect that
relevant judgment is the criminal restitution judgment. the Rooker-Feldman holding in White v. Abney might have.
The application of Rooker-Feldman here was improper =
because the criminal restitution judgment was not final at the
time the federal lawsuit commenced. In Hunter v. McMahon, In sum, the district court erred by relying on the Rooker-
75 F.Ath 62, 65, 67, 70-71 (2d Cir, 2023), this Court concluded Feldman doctrine to sua sponte dismiss White's complaints.
that the Rooker-Feldman doctrine could not apply when an We decline to affirm on the alternative grounds of collateral
appeal remains pending in state court at the time a complaint is estoppel. However, the district court's judgments with respect
filed, because Rooker-Feldman applies only after state-court to Schmidt and the Abneys can be affirmed on the alternative
proceedings have “ended.” Because White's criminal appeal ground of res judicata. We CXPTESS no view on the merits
remains pending, the relevant state court proceeding had not (or lack thereof) of the underlying suit against Santos,
concluded before White filed his complaint. Accordingly, the which is better addressed by the district court in the first
district court erred by dismissing the complaint based on instance. ~ Therefore, the judgments of the district court
Rooker-Feldman. are AFFIRMED IN PART and VACATED IN PART and
REMANDED for further proceedings.
Although the district court alternatively dismissed the
complaint on the basis of collateral estoppel, we do not 2 We acknowledge that the district court may decide
affirm on this ground. In White v. Abney, the Eastern that a stay is warranted pending the outcome of
District dismissed White's complaint against Schmidt under the criminal restitution judgment appeal. See Exxon
the Rooker-Feldman doctrine. Abney, 2020 WL 5848647, at Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
*7, While collateral estoppel can bar reconsideration even of 280, 292 (2005) (“Comity or abstention doctrines
prior rulings, our decision in Hunter amounted to may, in various circumstances, permit or require the
a significant clarification of our law on this fairly significant federal court to stay ... the federal action in favor of
issue of Rooker-Feldman’s proper scope. See Faulkner v. the state-court litigation.”).
Nat'l Geographic Enters. Inc., 409 F.3d 26, 37 (2d Cir. 2005)
(“[E]ven where the specified elements of collateral estoppel ayy Citations
are present, reexamination of a legal issue is appropriate
where there has been a change in the legal landscape after the Not Reported in Fed. Rptr., 2024 WL 1266245
decision claimed to have preclusive effect.”). Accordingly, we
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (10)
Title PDF Court Date Type
1. Appellant's Brief a CA2 Sep. 28, 2022 Brief
Paul WHITE, Appellant-Plaintiff, v. Teodicia SANTOS and | ==
Ella Abney, Personally, and Ella Abney as Executrix of the
Estate of Albert Abney, Respondents-Defendants.
2022 WL 10084079
2. Appellant's Brief a CA2 Apr. 18, 2022 Brief
Paul WHITE, Appellant-Plaintiff, v. Teodicia SANTOS and | =
Ella Abney, Personally, and Ella Abney as Executrix of the
Estate of Albert Abney, Respondents-Defendants.
2022 WL 1468427
3. Appellant's Brief a CA2 Mar. 18, 2022 Brief
Paul WHITE, Appellant-Plaintiff, v. Sandra SCHMIDT, “said
Respondent-Defendant.
2022 WL 1468431
4. Appellant's Brief me CA2 Mar. 18, 2022 Brief
Paul WHITE, Appellant-Plaintiff, v. Sandra SCHMIDT, “saad
Respondent-Defendant.
2022 WL 1468434
5. Docket 22-1911 — CA.2 Sep. 01, 2022 Docket
White v. Santos
6. Docket 22-1267 — CA.2 June 06, 2022 Docket
White v. Schmidt
7. Docket 22-89 — CA.2 Jan. 14, 2022 Docket
White v. Santos
8. Docket 22-92 — CA.2 Jan. 14, 2022 Docket
White v. Schmidt
9. Docket 1:21-CV-00854 — N.D.N.Y. July 29, 2021 Docket
White v. Schmidt et al
10. Docket 1:21-CV-00417 — N.D.N.Y. Apr. 13, 2021 Docket
White v. Santos et al
History (12)
Direct History (12)
White v. Schmidt
2021 WL 3856741 , N.D.N.Y. , Aug. 30, 2021
Appeal Dismissed by
2. White v. Schmidt
2022 WL 17406134 , 2nd Cir. , Apr. 21, 2022
AND Report and Recommendation Adopted by
White v. Schmidt
2022 WL 1222805 , N.D.N.Y. , Apr. 26, 2022
Affirmed in Part, Vacated in Part, Remanded by
4. White v. Schmidt
2024 WL 1266245 , 2nd Cir.(N.Y.) , Mar. 26, 2024
On Remand to
5. White v. Santos
2025 WL 1610573 , N.D.N.Y. , Mar. 10, 2025
Report and Recommendation Adopted by
6. White v. Santos
2025 WL 1275846 , N.D.N.Y. , May 02, 2025 , appeal dismissed (2d Cir. 25-1462) ( Nov 25, 2025 )
fa 7. White v. Santos
2021 WL 6339606 , N.D.N.Y. , Oct. 18, 2021
Appeal Dismissed by
8. White v. Santos
2022 WL 18282866 , 2nd Cir. , Apr. 21, 2022
AND Report and Recommendation Adopted by
9. White v. Santos
2022 WL 3025723 , N.D.N.Y. , Aug. 01, 2022
Affirmed in Part, Vacated in Part, Remanded by
10. White v. Schmidt
2024 WL 1266245 , 2nd Cir.(N.Y.) , Mar. 26, 2024
On Remand to
11. White v. Santos
2025 WL 1610573 , N.D.N.Y. , Mar. 10, 2025
Report and Recommendation Adopted by
12. White v. Santos
2025 WL 1275846 , N.D.N.Y. , May 02, 2025 , appeal dismissed (2d Cir. 25-1462) ( Nov 25, 2025 )
2024 WL 43/0495
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
2024 WL 4870495 Cir. 2004).
Only the Westlaw citation is currently available. 2 Plaintiff is advised that, although he has been
United States District Court, N.D. New York. granted IFP status, he is still required to pay all fees
Matthew H. COLE, Plaintiff, and costs he may incur in this action, including,
v. but not limited to, copying fees, transcript fees, and
witness fees.
Honorable Michael W. SMRTIC, et al. Defendants.
No. reeevos (MAD/CFH) IL Initial Review
Signed November 21, 2024
A. Legal Standards
Attorneys and Law Firms
Section 1915 of Title 28 of the United States Code directs
MATTHEW H. COLE, 271 Market Street, Amsterdam, New that, when a plaintiff seeks to proceed IFP, “the court shall
York 12010, Plaintiff pro se. dismiss the case at any time if the court determines that ... the
action or appeal (1) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (111) seeks monetary
REPORT-RECOMMENDATION & ORDER relief against a defendant who is immune from such relief.” 28
USS.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to
CHRISTIAN F. HUMMEL, United States Magistrate Judge determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
I. In Forma Pauperis
Where, as here, the plaintiff proceeds pro se, “the court
*1 Plaintiff pro se Matthew H. Cole (‘plaintiff’) — must construe his submissions liberally and interpret them
commenced this action (No. 1:24-CV-00623) on May 6, to raise the strongest arguments that they suggest.” Kirkland
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”). v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
On September 26, 2024, plaintiff submitted what the Court (per curiam) (internal quotation marks omitted); see also
construes to be a supplement to the complaint. | See Dkt. No. | Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
7. In lieu of paying this Court's filing fees, he submitted an _ the Second Circuit stated,
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP there are many cases 1h which we have said that a pro
. . . se litigant is entitled to “special solicitude,” that a pro se
application and determines that he financially qualifies to
5 litigant's submissions must be construed “liberally,” and
proceed IFP.~ Thus, the Court proceeds to its review of the that such submissions must be read to raise the strongest
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also arguments that they “suggest[.]” At the same time, our
submitted for the Court's review a Pro Se Application for cases have also indicated that we cannot read into pro se
Permission to File Electronically and a Motion to Appoint submissions claims that are not “consistent” with the pro
Counsel. See Dkt. Nos. 4, 5. se litigant's allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
| The submission includes a letter addressed to frivolous or vexatious filings by pro se litigants,” and that
District Judge D'Agostino, titled, “Requirements pro se status “does not exempt a party from compliance
for Cases Removed From State Court,’ Dkt. No. with relevant rules of procedural and substantive law[.]”
7; areceipt from Montgomery County Clerk dated
December 8, 2022: and a “Notice of Claim” with *2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
the caption of Cole v. County of Montgomery, 477 (2d Cir. 2006) (citations and footnote omitted); see also
dated December 7, 2022. See Dkt. No. 7. The Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
undersigned has reviewed this submission in (2d Cir. 2008).
connection with the initial review of plaintiff's
2024 WL 43/0495
“The [Second Circuit]’s ‘special solicitude’ for pro se paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
pleadings has its limits, because pro se pleadings still must (internal quotation marks and citations omitted). A complaint
comply with ... the Federal Rules of Civil Procedure [(‘Fed. that fails to comply with the pleading requirements “presents
R. Civ. P.’)].” Kastner _v. Tri State Eye, No. 19-CV-10668 far too a heavy burden in terms of a defendant's duty to
(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) shape a comprehensive defense and provides no meaningful
(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). basis for the Court to assess the sufficiency of their claims.”
Pleading guidelines are provided in the Federal Rules of | Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
Civil Procedure. Specifically, Rule 8 requires the pleading to the Second Circuit has held, “[w]hen a complaint does not
include: comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
(1) ashort and plain statement of the grounds for the court's complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir,
jurisdiction ...; 1988) (citations omitted). However, “[d]ismissal ... is usually
. . . reserved for those cases in which the complaint is so confused,
(2) a short and plain statement of the claim showing that . . □
. . . ambiguous, vague, or otherwise unintelligible that its true
the pleader is entitled to relief; and : □ .
substance, if any, is well disguised.” Id. (citations omitted).
(3) a demand for the relief sought...
*3 This Court also has an overarching obligation to
FED. R. CIV. P. 8(a). Although “[nJo technical form is determine that a claim is not legally frivolous before
required,” the Federal Rules make clear that each allegation permitting a pro se plaintiff's complaint to proceed. See, □□□□□□
contained in the pleading “must be simple, concise, and Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
direct.” Id. at 8(d). “The purpose ... is to give fair notice 362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
of the claim being asserted so as to permit the adverse ‘the claim is based on an indisputably meritless legal theory
party the opportunity to file a responsive answer, prepare an —_— [such as] when either the claim lacks an arguable basis in
adequate defense and determine whether the doctrine of res law, or a dispositive defense clearly exists on the face of the
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
54 (N.D.N.Y. 1999) (internal quotation marks and citations MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)3
omitted). Allegations that “are so vague as to fail to give the (quoting Livingston v. Adirondack Beverage Co., 141 F.3d
defendants adequate notice of the claims against them” are 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
(2d Cir. 2009) (summary order). theory ... or factual contentions lack an arguable basis.”).
Further, Fed. R. Civ. P. 10 provides: 3
Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
. . plaintiff.
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to B. Complaint
a single set of circumstances. A later
pleading may refer by number to Plaintiff's civil cover sheet indicates that he seeks to bring this
a paragraph in an earlier pleading. action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
If doing so would promote clarity, Against Rights & Title U.S.C. 18 Section 242 Deprivation
each claim founded on a separate of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
transaction or occurrence — and each cover sheet further provides that his cause of action involves,
defense other than a denial — must be “Violation of Due process, Speedy Trial Rights, Ineffective
stated in a separate count or defense. Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] Plaintiffs form complaint checks the box indicating that
an easy mode of identification for referring to a particular he seeks to bring this case pursuant to 42 U.S.C. § 1983.
2024 WL 43/0495
See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local *4 Petitioner seeks reinstatement
officials,” plaintiff responds, “Due Process, 30.30 Speedy of driving priveldges [sic], and 10
Trial Violation, Ineffective Assistance of counsel.”* Id. In million dollars for damages caused by
response to a question asking him to explain “how each conflict of interest, deliberate violation
defendant acted under color of state or local law,” plaintiff of Due Process, Speedy Trial rights,
states “Each judge deliberately denied me due process, and Ineffective assistance of counsel,
refused to look into the paperwork to see that 1 was improperly malice, Brady Violation, Petitioner
denied my speedy trial rights. It was a tean [sic] effort. claims deliberate misconduct and
The ADA/Special Prosecutor withheld potential exculpatory malice in Montgomery County Court,
material which was usd [sic] against me. All mentioned the Saratoga Disrict Attorney's Office,
actions were done and upheld even after I showed federal law and the Supreme Court Appellate
with supportive case law as a pro se litigant.” Id. Division Third department. ** This is
subject to change if an attorney agrees
4 Although plaintiff generally references ineffective to represent.
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would Compl. at 5. Although he typed his name, plaintiff does not
not be considered ineffective assistance of counsel sign the complaint where a signature is indicated. See id. at 8.
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney. Plaintiff provides in his supplement that he “removed this
Plaintiff provides that his “case is still on appeakl [sic] in action fo district court asserting Jurisdiction pursuant to
: □ US.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
Appellate Court Third Department. I feel they are guilty, that he removed this case from Montgomery County Supreme
or part of what Feall a scandal. I went to them from the Court. See id. He states that he seeks or sought the removal
very start with a complaint to the grievance committee, because he was told he was “not guarantee counsel” at the
conutititendh riche thaw thie: ae ve en state, but that “Ti]n Federal Court, there is that option, p ending
qualification, and I am told, if a lawyer agrees to take it, then
present” Id. I really have something. I am in dire need of counsel.” Id.
In response to a question that asks plaintiff to state the facts c . . .
his claims plaintiff states, “Please see attached The County Cout ee eae en □
Article 78 that is attached. It was dismissed being in the wrong appeal.” Dkt. No. 7 at 2. Plaintiff tates that “[t]o get my
vlan a edna nee conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel x 4. That is why I am
Article 78 materials. See Compl., Dkt. No. 7. pro se. I had to protect myself when appointed counsel did
| not. It also went through a couple judges which is why they
In response to the form complaint's question asking about are mentioned in the preliminary complaint/paperwork, and
any injuries suffered as a result of the conduct he complains why I mention bias.” Id, Plaintiff states he can “prove each
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by thing I saw not just with my words, but with transcripts from
arguments not legally allowed to give. Loss of income, the County Court, and the Adult Drug Court.” Id. Plaintiff
inability to gain and keep employment, mental trauma, refers to being drug free for four and a half years and having
instilled disbelief in justice in the legal system, familial 2°@demic success in college. Id. at 3. He states that he wishes
traumam [sic] due to my legal battles.” Id. Indicating the relief this Court {to hear his case because he believes he will not
sought, plaintiff states “see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
2024 WL 48/0495
Constitutional violations. That case number is 1:24-CR-301 actions whose unlawfulness would render a conviction
(AMN).” Id. or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
5 Plaintiff did not provide any transcripts. appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ
C.Di . 6 of habeas corpus.” Id. at 486-87. The court further held
. Discussion □
that “[a] claim for damages bearing that relationship to
6 As a courtesy, the Court has provided plaintiff with a conviction or sentence that has not been so invalidated
. . . ae is not cognizable under § 1983.” Id. at 487 (emphasis in
copies of any unpublished cases cited within this original).
Report-Recommendation & Order.
[]
1. Rule 8 Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
As a threshold issue, plaintiffs complaint fails to meet the . oo . .
no matter the target of the prisoner's suit ... if success in
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He . . . □□□
: : that action would necessarily demonstrate the invalidity
does not provide a short and plain statement of the claim of confinement or its duration.” Wilkinson v. Dotson, 544
demonstrating why he is entitled to relief. Although he U.S. 74, 81-82 (2005) (emphasis in original).
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to Ali_v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
“Due Process, 30.30 Speedy Trial Violation, Ineffective of □ WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
Counsel,” he does not provide factual support or context. recommendation adopted sub nom. Ali v. Dow, No. 8:24-
Thus, his complaint does not provide “fair notice” to CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
defendants of the claims against them. See FED. R. CIV. P. (quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
8(a)(2). 2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
2. Heck v. Humphrey
Plaintiff has failed to demonstrate that any criminal charge(s),
However, there are several substantive concerns that further conviction, or sentence has been “reversed on direct appeal,
lead the undersigned to recommend dismissal. First, in expunged by executive order, declared invalid by a state
referencing to “Due Process, 30.30 Speedy Trial Violation, tribunal authorized to make such determination, or called into
Ineffective of Counsel” and explicitly referencing a criminal question by a federal court's issuance of a writ of habeas
conviction, it is clear that plaintiff is attempting to seek corpus.” Zografidis, 2022 WL 21756775, at *7. Although
some kind of review of a criminal proceeding or conviction. plaintiffs complaint wants for detail, the undersigned can
See Compl. at 3. Plaintiff also accuses all named judges clearly determine that plaintiff secks review of his criminal
of denying him due process and contends that an unnamed _ proceedings, conviction, and/or sentence. The claims plaintiff
“ADA/Special Prosecutor withheld potential exculpatory seeks to pursue relate to allegations that he was denied
material which was usd [sic] against me.” Compl. at 4. due process, denied speedy trial rights, and experienced
Plaintiff also references a conviction. See Dkt. No. 7 at 4. ineffective assistance of counsel. Accordingly, plaintiff's
Such claims would be barred by Heck v. Humphrey. claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. /
*5 As this Court, citing the District of Connecticut, has set
forth: 7
The undersigned recognizes that claims that are
In Heck, the Supreme Court held that in order for a determined to be barred by Heck are dismissed
plaintiff “to recover damages for allegedly unconstitutional without prejudice. However, the undersigned has
conviction or imprisonment, or for other harm caused by recommended dismissal with prejudice because
2024 WL 43/0495
plaintiff has only named defendants who are (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
immune from relief. Accordingly, the undersigned curiam)). “Judicial immunity has been created for the public
is recommending dismissal of the claims based on interest in having judges who are ‘at liberty to exercise
these immunities, rather than a Heck dismissal. The their functions with independence and without fear of
undersigned has included the Heck review for sake consequences.’ ” Id. (quoting Huminski v. Corsones, 396
of completeness. F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
when the judge is accused of acting maliciously or corruptly.”
Id. (citation omitted); see Positano v. New York, No. 12-
3. Immunities CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
Mar. 7, 2013) (explaining that the plaintiff may not bring
Plaintiff names as defendants several defendants who are . . . . ee ee .
immune from suit. Insofar as plaintiff names Hon. Michael action against ajudge for actions taken in his judicial capacity,
. . . even when the actions violated the ADA).
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate’s Court Judge” * such “Judicial immunity is immunity from suit, not just immunity
claims would be barred by judicial immunity. from the assessment of damages.” Zavalidroga, 2017 WL
8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
8 Although plaintiff provides no facts regarding 526 (1985)). “The only two circumstances in which judicial
any family court proceedings, that he named a immunity does not apply is when he or she takes action
family court judge and makes general reference ‘outside’ his or her judicial capacity and when the judge takes
to that he seeks review over actions taken by action that, although judicial in nature, is taken ‘in absence
a family court judge. Even if plaintiff were to of jurisdiction.” ” Id. (quoting Mireles, 502 U.S. at 11-12).
amend his complaint to provide facts about any “In determining whether or not a judge acted in the clear
possible family court proceedings and details absence of all jurisdiction, the judge's jurisdiction is ‘to be
about any alleged violations of his rights that he construed broadly, and the asserted immunity will only be
believes he faced in that Court, if plaintiff seeks overcome when the judge clearly lacks jurisdiction over the
this Court's review of an order of the family subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
court, such review would be barred by Rooker- 163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
Feldman, and if plaintiff seeks this Court's review Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).
or intervention of a currently pending/ongoing “Whether a judge acted in a judicial capacity depends on
Family Court proceeding, such review would be the nature of the act [complained of] itself, i.c., whether it
barred by Younger. See Porter v. Nasci, No. 5:24- is a function normally performed by a judge, and [on] the
CV-0033 (GTS/TWD), 2024 WL 1142144, at expectations of the parties, 1.e., whether they dealt with the
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), judge in his judicial capacity.” Ceparano, 404 F. App’x at 539
report and recommendation adopted, 2024 WL (internal quotation marks and citation omitted). “Further, if
3158645 (N.D.N.Y. June 25, 2024) (“Under the the judge is performing in his judicial capacity,” he “ “will not
Rooker-Feldman doctrine, a federal district court be deprived of immunity because the action he took was in
lacks authority to review a final state court order error, was done maliciously, or was in excess of his authority;
or judgment where a litigant seeks relief that rather, he will be subject to liability only when he has acted
invites the federal district court to reject or overturn in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.
such a final state court order or judgment.”); see App’x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362
also Diamond “D” Constr. Corp. v. McGowan, (1978)). “Judges are not, however, absolutely “immune from
282 F.3d 191, 198 (2d Cir. 2002) (“[Flederal liability for nonjudicial actions, 1.e., actions not taken in the
courts [must] abstain from taking jurisdiction over judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209
federal constitutional claims that involve or call (2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
into question ongoing state proceedings.”).
. . . . Thus, as plaintiff names the judicial defendants in relation to
6 “With minor exceptions, judges are entitled to absolute . . . .
immunity for actions relating to the exercise of their judicial actions °r omussions that they took in their rol “s □□ Judges,
. . their actions are protected by absolute judicial immunity.
functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/ . . □□□□
To the extent plaintiff names Hon. Felix Catena, “Retired
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
2024 WL 43/0495
Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does Accordingly, absolute immunity extends to functions such
not impact [his or] her immunity for acts taken in [his or] as “deciding whether to bring charges and presenting a case
her official capacity before her retirement.” McCray v. Lewis, to a grand jury or a court, along with the tasks generally
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2 considered adjunct to those functions, such as witness
Aug. 31, 2016). To the extent plaintiff may seek to preparation, witness selection, and issuing subpoenas.”
sue the judges their official capacities, the suit is barred by the Simon_v. City_of New York □□ Cit -of New York, 727 F.3d 167, 171 (2d
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp. Cir. 2013) (citing Imbler, 424 US. al 431 n.33); see
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment also Flagler, 663 F.3d at 547 (explaining, “the Supreme
shields judges from suit to the extent that they are sued in their Court has found prosecutors absolutely immune from
official capacities.”). suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
*7 In addition, plaintiff also references, exclusively in his the State's case ... [but] withheld absolute immunity for
“relief” section of the form complaint, “the Supreme Court conduct unrelated to advocacy, such as giving legal advice,
Appellate Division, Third Department” when stating that he holding a press conference, or acting as a complaining
experienced “deliberate misconduct and malice.” Compl. at witness.”). “[O]nce a court determines that challenged
7. He does not name this Court as a defendant anywhere in conduct involves a function covered by absolute immunity,
the complaint. However, even if plaintiff were to have named the actor is shielded from liability for damages regardless
the Appellate Division, Third Department as a defendant, of the wrongfulness of his motive or the degree of injury
such defendant would also need to be dismissed based on caused ve Bernard v. Cnt □□ Suffolk, 356 F.3d 495, 503
Eleventh Amendment immunity as the Appellate Division “is (2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
merely an agency or arm of New York State.” Benyi v. New 199-200 (1985).
. a oO we TWh ee at Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
oncy Laes een WI Llbdsss NDNY. WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
opel : i it 4). Accordingly. t lc i and recommendation adopted, No. 5:24-CV-573, 2024 WL
pr. 13, 2021) (citation omitted). Accordingly, to the extent 3548769 aD NY. July 26, 2024),
a liberal reading of the complaint may suggest that plaintiff
secks to name the Appellate Division as a defendant, such Plaintiff appears to suggest that Mr. Maxwell “withheld
claims are barred by Eleventh Amendment immunity. See . a5 .
C i potentially exculpatory material” that was used against
omp". him. Compl. at 4. Beyond the Heck barriers already
. . discussed, even if plaintiff could amend to provide greater
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V. . . . .
. . detail, absolute immunity would extent to even this alleged
Maxwell, Esq., Assistant District Attorney, in addition to the . . cae
misconduct as such allegations clearly fall within the scope of
Heck issues noted above, he would be protected by absolute Lae . .
torial i ity. As this Court h tly reiterated prosecutorial immunity. Accordingly, it is recommended that
PROSCCUNOTTAE HIDUTETY: 248 LAUS OUT TAS TECEDINY TEMSTALCL, any claims against ADA Samuel V. Maxwell be dismissed
Prosecutors enjoy “absolute immunity from § 1983 liability for absolute prosecutorial immunity. “Furthermore, because
for those prosecutorial activities ‘intimately associated the District Attorney's prosecutorial immunity is substantive
with the judicial phase of the criminal process.’ ” Barr v. and not something that can be corrected by a better pleading,
v. Pachtman, 424 U.S. 409, 430 (1976). This immunity Y-New York, No. 5:13-CV-927, 2013 WL 5703629, at *S
encompasses “virtually all acts, regardless of motivation, (N-D-N.¥. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
associated with [the prosecutor's] function as an advocate.” F.3d 99, 223 (2d Cir. 2000)). °
Hill _v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute 9 Plaintiff appears to characterize his submissions as
immunity applies when a prosecutor's conduct, acting as an a purported removal to federal court or suggests
advocate during the judicial phase of the criminal process, that he seeks to remove his case from Montgomery
“involves the exercise of discretion.” Flagler v. Trainor, County Court to this Court. See Dkt. No. 7
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher, (citing 28 U.S.C. § 1441). However, in addition
522 118, 127 (1997)).
2024 WL 43/0495
to the infirmities mentioned above, plaintiff has 10 The undersigned also notes that plaintiff did
not demonstrated that any proceeding related to not contend that he made any efforts to obtain
this complaint has been properly removed to, or counsel on his own, show proof of any attorneys
is subject to removal to, this Court. See, e.g., he contacted. See Terminate Control □□□□
28 U.S.C. § 1446. Indeed, plaintiff's submissions Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
appear to indicate that plaintiff □□ the plaintiff in the No. 5.
County Court action. See id. § 1446(a). ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
II. Conclusion Local Rules.
*8 It is ORDERED, that plaintiffs in forma pauperis IT IS SO ORDERED.
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims Pursuant to 28 U.S.C. § 636(b)(1), parties have □
against Honorable Michael W. Smrtic; Tatiana N. Coffinger, FOURTEEN (14) days within which f file written
County/Family/Surrogate's Court Judge: and Felix Catena, objections to the foregoing report. Such objections shall be
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be filed with the Clerk of the Court. FAILURE TO OBJECT
DISMISSED WITH PREJUDICE as follows: (1) claims TO THIS REPORT WITHIN FOURTEEN (14) DAYS
. . . oe WILL PRECLUDE APPELLATE REVIEW. Roldan v.
brought against them in their personal/individual capacities .
for judicial immunity, and (2) claims brought against them in Racette, 984 F.2d 85, 89 (2d Cir, 1993) (citing Smuull □□ □□□□□
their official capacities for Eleventh Amendment immunity; of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989); see
and it is further also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. |!
RECOMMENDED, that plaintiff's section 1983 claims 1 If you are proceeding pro se and are served with
against Assistant District Attorney Samuel V. Maxwell (Dkt. this Report-Recommendation and Order by mail,
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to three (3) additional days will be added to the
absolute prosecutorial immunity; and it is further fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
RECOMMENDED, that, to the extent a liberal reading Recommendation and Order was mailed to you to
of the complaint may suggest that plaintiff secks to name serve and file objections. FED. R. CIV. P. 6(d).
the Appellate Division, Third Department, as a defendant If the last day of that prescribed period falls on
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH a Saturday, Sunday, or legal holiday, then the
PREJUDICE as barred by Eleventh Amendment immunity, deadline is extended until the end of the next day
and it is that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(C).
RECOMMENDED, that plaintiffs pro se motion for
permission to file electronically (dkt. no. 4) and motion to aq] Citations
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is Not Reported in Fed. Supp., 2024 WL 4870495
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:24-CV-00847 — N.D.N.Y. July 08, 2024 Docket
Cole v. Smrtic et al
History (2)
Direct History (2)
1. Cole v. Smrtic ~
2024 WL 4870495 , N.D.N.Y. , Nov. 21, 2024
Report and Recommendation Adopted by
2. Cole v. Smrtic
2025 WL 247901 , N.D.N.Y. , Jan. 21, 2025
20295 WL 1291533
Il, STANDARD OF REVIEW
2025 WL 1291533 This Court reviews de novo those portions of a magistrate
Boone pene Danae no Navan judge's report-recommendation that have been properly
ao ‘ preserved with a specific objection. 28 U.S.C. § 636(b)(1)
Scott LESSON, Plaintiff, (C). “To be ‘specific,’ the objection must, with particularity,
v. ‘identify [1] the portions of the proposed findings,
recommendations, or report to which it has an objection
Jane DOE / State Trooper, Defendant. and [2] the basis for the objection.’ ” Petersen □□□ Astrue,
1:25-cv-00188 (AMN/TWD) 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in
| original) (quoting N.D.N.Y. Local Rule 72.1(c)). Ifno specific
Signed May 5, 2025 objections have been filed, this Court reviews a magistrate
judge's report-recommendation for clear error. See Petersen,
Attorneys and Law Firms 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b) advisory
committee's notes to 1983 addition). Similarly, when a party
SCOTT LESSON, Saratoga County Jail, 6010 County Farm _fijes “[g]eneral or conclusory objections, or objections which
Road, Ballston Spa, New York 12020, Plaintiff, pro se. merely recite the same arguments [previously] presented to
the magistrate judge,” the district court reviews a magistrate
judge's report-recommendations for clear error. O'Diah y.
ORDER Mawhir, No. 08-cv-322, 2011 WL 933846, at *1 (N.D.N-Y.
Mar. 16, 2011) (citations omitted); accord Mario v. P &
Anne M. Nardacci, United States District Judge: C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
L INTRODUCTION (a “statement, devoid of any reference to specific findings
#1 On February 10, 2025, pro se plaintiff Scott Lesson or recommendations to which [the plaintiff] objected and
(“Plaintiff”) commenced this action pursuant to 42 U.S.C. § why, and unsupported by legal authority, was not sufficient
1983 (“Section 1983”) against an unknown New York State to preserve a claim), Petersen, 2k Supp. 3d at 228-29
Trooper. Dkt. No. | (“Complaint”). Plaintiff sought and was & ne (collecting cases). “When performing such a clear
eranted leave to proceed in forma pauperis. Dkt. Nos. 4, 6. error’ review, ‘the court need only satisfy itself that there is
no clear error on the face of the record in order to accept
This matter was referred to United States Magistrate Judge the recommendation.’ * Dezarea W. v. Comm'r of Soc. Sec.,
Thérése Wiley Dancks, who reviewed the Complaint pursuant No. 21-ev-01138, 2023 WL. 2552452, at *I (N.D.N.Y. Mar.
to 28 U.S.C. § 1915(e) and, on March 26, 2025, recommended 17, 2023) (quoting Canady v. Comm'r of Soe. Sec., No. 17-
that the Complaint be dismissed with leave to amend. Dkt. No. cv-0367, 2017 WL 5484663, at *I nt (N.D.N.Y. Nov. 14,
6 (“Report-Recommendation”). Magistrate Judge Dancks 2017).
advised that pursuant (0 28 U.S.C. § 636(6)(1), the parties *2 “(I]n a pro se case, the court must view the submissions
had fourteen days within which to file written objections and ° □
that failure to object to the Report-Recommendation within by a more lenient standard than that accorded to “formal
1 pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
fourteen days would preclude appellate review. /d. at 7-8. FE. Supp. 2d 289, 295 (N.DNLY. 2007) (quoting Haines
No party has filed objections to the Report-Recommendation v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
and the time for filing objections has expired. omitted). The Second Circuit has held that courts are
obligated to “make reasonable allowances to protect pro se
I Citations to docket entries utilize the pagination litigants” from inadvertently forfeiting legal rights merely
generated by CM/ECF, the Court's electronic filing because they lack a legal education. Jd. (quoting Traguth □□□
system, and not the documents’ internal pagination. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a
For the reasons set forth below, the Court adopts the Report- Pro Se party's objections to a Report and Recommendation
Recommendation in its entirety. must be specific and clearly aimed at particular findings in
the magistrate's proposal ....” Machicote v. Ercole, No. 06-
cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011)
(citation omitted); accord Caldwell v. Petros, No. 22-cv-567,
20295 WL 1291533
2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After ORDERS that the Complaint, Dkt. No. 1, is DISMISSED
appropriate review, “the court may accept, reject or modify, | With leave to amend; * and the Court further
in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 2 As set forth in the Report-Recommendation, any
amended pleading must comply with Rules 8 and
IIL DISCUSSION 10 of the Federal Rules of Civil Procedure. Dkt. No.
□ 5 at 6-7.
Because no party has filed any objections to the
Report-Recommendation, the Court reviews the Report- | ORDERS that any amended complaint must be filed within
Recommendation for clear error. thirty (30) days of the filing date of this Order; and the Court
further
Magistrate Judge Dancks determined that Plaintiff's
allegations failed to set forth a claim for excessive force, | ORDERS that, if Plaintiffs file a timely amended complaint,
as Plaintiff did not identify what force the unidentified it shall be referred to Magistrate Judge Dancks for review;
state trooper purportedly used against him, nor how it was and if Plaintiff fails to file a timely amended complaint, the
excessive. Dkt. No. 6 at 5-6. Magistrate Judge Dancks also Clerk is directed to close this case without further order of this
found that Plaintiff's allegations failed to comply with the | Court; and the Court further
pleading requirements set forth in the Federal Rules of Civil
Procedure. /d. at 4-5. As a result, Magistrate Judge Dancks ORDERS that the Clerk serve a copy of this Order on all
recommended that the Complaint be dismissed with leave to _ parties in accordance with the Local Rules. 3
amend. Jd. at 6-7. The Court agrees with Magistrate Judge
ns □□□ ort © voce ne 3 The Clerk shall also provide Plaintiff, at both
me NEPOTT- econnimen ation. Having reviewed te his address of record and the future address he
Report-Recommendation for clear error, and found none, the . . .
ow. . provided, Dkt. No. 2, with copies of all unreported
Court adopts the Report-Recommendation in its entirety. .
decisions herein.
IT IS SO ORDERED.
IV. CONCLUSION
Accordingly, the Court hereby
All Citations
ORDERS that the Report-Recommendation, Dkt. No. 6, is Not R ted in Fed. § 5025 WL 1091533
ADOPTED in its entirety; and the Court further OF SEPOTER AD ECE. SUPP.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Lesson v. Doe
2025 WL 915777 , N.D.N.Y. , Mar. 26, 2025
Report and Recommendation Adopted by
2. Lesson v. Doe
2025 WL 1291533 , N.D.N.Y. , May 05, 2025
Filings
There are no Filings for this citation.