Flores

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

VALERIE FLORES,

Plaintiff,

v. 1:26-CV-0148

(GTS/ML)

JENNIFER MNOOKIN; JAY ROTHMAN;

and SHANNON BLOMSTROM KORATKO,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

Valerie Flores

Plaintiff, Pro Se

Post Office Box 1110 ACP 5749

Albany, New York 12201

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

Plaintiff Valerie Flores (“Plaintiff”) filed this pro se complaint against Defendants

Jennifer Mnookin, Jay Rothman, and Shannon Blomstrom Koratko (collectively “Defendants”)

alleging violations of her rights. (Dkt. No. 1.) Plaintiff did not pay the filing fee and seeks leave

to proceed in forma pauperis (“IFP”). (Dkt. No. 21.) For the reasons set forth below, I (1) grant

Plaintiff’s third amended IFP application, and (2) recommend that the Complaint be dismissed in

its entirety without leave to amend.

I. BACKGROUND

Construed as liberally1 as possible, the Complaint alleges violations of Plaintiff’s rights

by Defendants. (See generally Dkt. No. 1.)

More specifically, the Complaint alleges that Defendants engaged in a campaign of

harassment dating back to 2012 whereby they utilized personalized license plates and individuals

by the name of Jennifer to harass Plaintiff. (Id.) The Complaint appears to assert claims of

“[a]ggravated harassment” and interstate stalking. (Dkt. No. 1 at 3.) As relief, Plaintiff seeks

$4,000,000 in damages. (Dkt. No. 1 at 4.)

II. PLAINTIFF’S THIRD AMENDED APPLICATION TO PROCEED IN FORMA

PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee

for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s third amended

1 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

2 The language of that section is ambiguous because it suggests an intent to limit

availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the

commencement of an action without prepayment of fees “by a person who submits an affidavit

that includes a statement of all assets such prisoner possesses”). The courts have construed that

section, however, as making IFP status available to any litigant who can meet the governing

financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City

of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

IFP application (Dkt. No. 21), the Court finds that Plaintiff meets this standard.3 Therefore,

Plaintiff’s third amended application to proceed IFP is granted.4

III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . 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).

In order to state a claim upon which relief can be granted, a complaint must contain, inter

alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief

means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis

added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a

complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial

experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not

shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and

punctuation omitted).

3 Plaintiff is a prolific filer; she is cautioned that proceeding IFP is a privilege, not an

unqualified right. The continued filing of frivolous lawsuits may result in the denial of a request

to proceed IFP in an action.

4 Plaintiff is reminded that, although her IFP application has been granted, she is still

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

“In reviewing a complaint . . . the court must accept the material facts alleged in the

complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .

. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe her

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes

of action be dismissed.

First, Plaintiff's Complaint is frivolous and nonsensical. By way of example, in the

portion of the form Complaint which solicits the location of the events giving rise to her claims,

Plaintiff alleges as follows:

They have been all over the country in multiple states harrassing me with

personalized plates & just plain terrorizing me & started doing this to me

in 2012. It affects my everyday life what they have been doing to me.

(Dkt. No. 1 at 4 [errors in original].) Moreover, in the portion of the form Complaint asking the

date and approximate time of the events giving rise to her claims, Plaintiff alleges:

2012 – ongoing (all over the continental United States) I received a

harrassing text from a Rx company and the woman’s name was Jennifer.

(Id. [errors in original].) Further, in the portion of the form Complaint soliciting the facts

underlying her claims, Plaintiff alleges as follows:

I have submitted multiple pictures in multiple cases of personalized plates.

One police agency acknowledged that they believed UW-Madison to be

the culprits. This terror has gone on for 14 years. I have a cracked

windshield currently & believe I have been dealing with vandalism to my

car since 2012. Jay Rothman stole a souvenoir I had in my purse that was

in no way contraband & may have stolen it again & they may be trying to

sell the maroon North Face purse on E-bay (in Ohio). Its stolen.

(Dkt. No. 1 at 5 [errors in original].)

Plaintiff's claims are precisely the type of fanciful or delusional allegations that warrant

dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) as factually frivolous. See, e.g., Gladney v.

Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002) (holding that suit may be dismissed

where facts alleged in complaint are “so nutty (‘delusional’ is the polite word) that they're

unbelievable, even though there has been no evidentiary hearing to determine their truth or

falsity”); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (explaining that an action is frivolous

when “the factual contentions are clearly baseless, such as when allegations are the product of

delusion or fantasy”) (internal quotation marks omitted).

As a result, I recommend that Plaintiff's Complaint be dismissed as frivolous pursuant to

28 U.S.C. § 1915(e)(2)(B)(i).

Second, in the alternative, I recommend that the Complaint be dismissed for failure to

state a claim upon which relief may be granted.

More specifically, to the extent that Plaintiff asserts a claim of interstate stalking pursuant

to 18 U.S.C. § 2261(a), it is a criminal statute and does not “confer a private right of action on

Plaintiff.” Flores v. KW Call Center Services, 26-CV-0122, 2026 WL 1481648, at *3 (N.D.N.Y.

May 27, 2026) (Sannes, C.J.). As a result, I recommend that any claims under 18 U.S.C. §

2261(a) be dismissed. See Fata v. Arcelly, 26-CV-2185, 2026 WL 1831673, at *7 (E.D. Pa. June

25, 2026) (citing Weisman v. Baur, 20-CV-6100, 2021 WL 3403519, at *2 (E.D. Pa. Aug. 4,

2021) (dismissing civil claim brought under 18 U.S.C. § 2261A); Humphrey v. Pa. Ct. of

Common Pleas of Phila., 20-CV-2335, 2021 WL 268498, at *2 n.3 (E.D. Pa. Jan. 27, 2021)

(“[N]umerous federal courts have held that no private right of action exists under [the Violence

Against Women Act, 18 U.S.C. § 2261-2262].”)) (holding that “there is no private right of action

under [18 U.S.C. § 2261A].”).

Further, to the extent that the Complaint is construed as asserting a claim of aggravated

harassment under New York Penal Law §240.30, there is no private right of action for violation

of this criminal statute. Cruz v. New York City Transit, 24-CV-0089, 2025 WL 209598, at *10

(S.D.N.Y. Jan. 16, 2025), report and recommendation adopted by, 2025 WL 618557 (S.D.N.Y.

Feb. 26, 2025).

Moreover, to the extent that Plaintiff’s stalking and harassment claims are construed as

pursuant to New York common law, New York does not recognize private causes of action for

harassment and stalking. Thus, I recommend that those claims be dismissed. Graham v. UMG

Recordings, Inc., 806 F. Supp. 3d 454, 476 (S.D.N.Y. 2025) (“New York does not recognize a

civil cause of action for harassment.”); Jones v. L3 Harris, 730 F. Supp. 3d 26, 29 (W.D.N.Y.

2024) (citing Robinson v. Williams, 22-CV-0982, 2023 WL 3352758, at *9 (N.D.N.Y. Jan. 12,

2023) (Lovric, M.J.), adopted 2023 WL 2986825 (N.D.N.Y. Apr. 18, 2023)) (“It is well-settled

that ‘there is no private cause of action for stalking or general harm.’”).

As a result, I recommend, in the alternative, that the Complaint be dismissed for failure to

state a claim upon which relief may be granted.

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). An opportunity to amend is not required, however, where “the problem

with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).5

Here, a better pleading could not cure the deficiencies identified with Plaintiff’s claims.

Although the usual practice is to allow leave to replead a deficient complaint, see Fed. R. Civ. P.

15(a); see also Ronzani v. Sanofi, S.A., 899 F.2d 195, 198 (2d Cir. 1990), especially where a

complaint has been submitted pro se, see Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994), “a

court may dismiss a case without allowing leave to amend ‘where the substance of the claim

5 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

pleaded is frivolous on its face,’” Harris v. U.S. Secret Serv., 605 F. Supp. 3d 410, 414

(N.D.N.Y. 2022) (quoting Salahuddin, 861 F.2d at 42, and dismissing complaint without leave to

amend because the plaintiff's claim rested “solely on his demonstrably false belief that he is

president” and “granting leave would not cure the defects of the complaint”).

“Plaintiff's claims in this case are based on fantastical allegations that scores of

[individuals are harassing her using personalized license plates and she has interacted with

women named Jennifer throughout the course of the last fourteen years]. Affording Plaintiff an

opportunity to amend would not cure the fact that the substance of h[er] complaint is factually

frivolous on its face.” Lang v. Clinton, 761 F. Supp. 3d 595, 602 (W.D.N.Y. 2024), appeal

dismissed, No. 25-126, 2025 WL 1982319 (2d Cir. May 21, 2025), cert. denied, No. 25-7273,

2026 WL 1855058 (U.S. June 29, 2026). As a result, I recommend that the Court decline to

grant Plaintiff leave to amend.

PLAINTIFF IS ADVISED THAT SHE SHOULD NOT SEEK TO FILE A MOTION TO

AMEND HER COMPLAINT UNTIL UNITED STATES DISTRICT JUDGE SUDDABY

RULES ON THIS COURT’S RECOMMENDATIONS WITH RESPECT TO PLAINTIFF’S

COMPLAINT. ANY AMENDED COMPLAINT OR MOTION TO AMEND BEFORE JUDGE

SUDDABY’S DECISION WITH RESPECT TO THIS COURT’S RECOMMENDATIONS

WILL BE STRICKEN AS PREMATURE AND WILL NOT BE CONSIDERED BY THE

COURT. As noted below, however, Plaintiff may file objections to this Court’s

recommendations.

ACCORDINGLY, it is

ORDERED that Plaintiff’s third amended application to proceed in forma pauperis (Dkt.

No. 21) is GRANTED; and it is further respectfully

RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED in its

entirety without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further

respectfully

ORDERED that the Clerk of the Court shall file a copy of this Order and Report-

Recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.°

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

DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: September 9 , 2026

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

6 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

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

7 If you are proceeding pro se and served with this report, recommendation, and order by

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

seventeen days from the date that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

1997 WL 599355 amended complaint alleging the specific acts committed by

Only the Westlaw citation is currently available. the individuals named as defendants which Brown claimed

United States District Court, N.D. New York. violated his constitutional rights. Brown filed an amended

complaint on March 21, 1996. In his amended complaint,

Kenneth BROWN, Plaintiff, Brown alleged that defendants violated his rights under the

v. Eighth and Fourteenth Amendments by failing to process

Andrew PETERS, Warden, Watertown Correctional properly his interstate compact paperwork, resulting in Brown

Facility; Joseph Williams, Warden, Lincoln Work– being imprisoned pursuant to a parole hold when in fact

he had never violated the conditions of his parole. For a

Release Center; Francis J. Herman, Senior Parole

more complete statement of Brown's claims, see his amended

Officer Interstate Bureau; T. Stanford, Senior Parole

complaint. Dkt. No. 5.

Officer; Deborah Stewart, Parole Officer; John Doe #

1, Parole Agent, Watertown Correctional Facility; John On August 5, 1996, defendants Peters and Williams made

Doe # 2, Parole Agent, Lincoln Work Release Center; a motion to dismiss for failure to state a claim pursuant to

Susan Bishop, Director of Interstate Compact, South Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On

Carolina; Cecil Magee, Parole Officer, South Carolina; August 19, 1996, defendants Bishop, Magee, Barton, and

Frank Barton, Parole Officer, South Carolina; John McMahan made a motion to dismiss the complaint against

McMahan, Parole Officer, South Carolina, Defendants. them or, in the alternative, for summary judgment. Dkt. No.

20. On October 17, 1996, defendants Herman, Stewart, and

No. Civ.A. 95CV1641RSPDS. Stanford made a motion to dismiss for failure to state a

| claim. Dkt. No 34. On April 17, 1996, Magistrate Judge

Sept. 22, 1997. Scanlon recommended that all defendants' motions to dismiss

be granted and that the complaint be dismissed. Dkt. No. 50.

Attorneys and Law Firms

On June 9, 1997, Brown filed objections to the

Kenneth Brown, State Court Institute–Greene, Waynesburg,

magistrate judge's report-recommendation, having been

PA, plaintiff, pro se.

granted additional time in which to do so. Dkt. No. 52. In

Dennis C. Vacco, New York State Attorney General, The addition, Brown filed on June 9, 1997, a motion for leave to

Capitol Albany, NY, for defendants Peters, Herman Stewart, file a second amended complaint and a copy of his proposed

Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant amended complaint. Dkt. No. 53. I turn first to the last motion

Attorney General, Carl N. Lundberg, Chief Legal Counsel, filed, Brown's motion for leave to amend his complaint a

South Carolina Department of Probation, Columbia, SC, for second time.

defendants Bishop, Magee, Barton, McMahan, and Stanford,

Carl N. Lundberg, of Counsel. Brown seeks to file a second amended complaint “setting

forth in detail the personal involvement of each defendant

and how their acts of commission and omission served to

DECISION AND ORDER deprive plaintiff of Constitutionally secured rights.” Dkt. No.

53. The district court has discretion whether to grant leave

POOLER, J. to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,

131 (2d Cir.1993). In exercising that discretion, the court

*1 The above matter comes to me following a Report– should freely grant leave to amend when justice so requires.

Recommendation by Magistrate Judge Daniel Scanlon, Jr., Fed.R.Civ.P. 15(a). However, the court need not grant leave

duly filed on April 17, 1997. Following ten days from the to amend where it appears that amendment would prove to be

service thereof, the Clerk has sent me the entire file, including unproductive or futile. Ruffolo, 987 F.2d at 131.

any and all objections filed by the parties herein.

Here, Brown moved to amend his complaint to add additional

Plaintiff Kenneth Brown commenced this Section 1983 civil allegations against the named defendants. However, the

rights action on November 17, 1995. On February 12, additional allegations fail to cure the deficiency which

the absence of defendants' personal involvement in a to which specific, written objection has been made.” Brown's

constitutional deprivation. Section 1983 imposes liability objections fail to address directly any of the analysis.

upon an individual only when personal involvement of that Brown's objections state (1) that he has been deprived of

individual subjects a person to deprivation of a federal right. his constitutional rights; (2) that he has stated a cause of

See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. action; (3) that the court wrongly refused to appoint an

2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective attorney for him and wrongly stayed discovery pending the

if it fails to allege personal involvement sufficient to establish outcome of these motions; (4) that he seeks to file an amended

that a supervisor was “directly and personally responsible for complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)

the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward, (6) motion; (6) that he disagrees with the magistrate judge's

814 F.2d 883, 886 (2d Cir.1987). recommendation to grant defendants' motions because the

allegations in his complaint, which he repeats, show that his

*2 Brown's proposed amended complaint alleges in rights were violated; and (7) the text of the Fourteenth and

conclusory fashion that defendants acted “in a grossly Eighth Amendments.

negligent and concerted manner which breached their duties

owed to Plaintiff and is the proximate cause of [the violation Even affording the objections the liberal reading required

of plaintiff's constitutional rights].” Proposed Am. Compl., for pro se pleadings, I find that these objections fail to

at 3. Brown continues in the same vein, stating that state any basis whatsoever, much less a specific one, for

defendants owed duties to plaintiff to carry out their jobs in a the court not to adopt the magistrate judge's rulings. They

professional manner and they failed to carry out those duties simply re-state the relief sought and the facts on which Brown

appropriately. The complaint states that defendants held grounds his complaint and conclude that the magistrate

specific responsibilities, such as checking for outstanding judge's conclusions are wrong. When the parties make only

warrants, which if performed properly should have alerted frivolous, conclusive, or general objections, the court reviews

them to a problem. However, nowhere does the complaint the report-recommendation for clear error. See Camardo v.

set forth allegations that these defendants either participated General Motors Hourly–Rate Employees Pension Plan, 806

directly in any constitutional infraction or that they were even F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider

aware of such an infraction. The proposed amended complaint objections which are frivolous, conclusive, or general and

merely alleges that these defendants failed in performing their constitute a rehashing of the same arguments and positions

supervisory and ministerial functions. “These bare assertions taken in original pleadings); Chambrier v. Leonardo, 1991

do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis, WL 44838, *1 (S.D.N.Y.) (restatement of allegations already

1988 WL 78306, *2 (S.D.N.Y.). before the court and assertion that valid constitutional claim

exists insufficient to form specific objections); Schoolfield

This plaintiff previously has had the opportunity to amend his v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)

complaint for the same reason asserted here, to allege personal (objections stating that magistrate judge's decisions are

involvement on the part of defendants. Brown's first amended wrong and unjust, and restating relief sought and facts

complaint failed to accomplish that task, and it appears that upon which complaint grounded, are conclusory and do not

even if allowed to amend again Brown would be unable to form specific basis for not adopting report-recommendation);

make the requisite allegations with sufficient specificity to Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general

sustain his complaint. Consequently, I find that amendment objection that report does not address violation of petitioner's

would be futile, and I deny Brown's motion for leave to amend constitutional rights is a general plea that report not be

his complaint. adopted and cannot be treated as objection within the meaning

of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.

I turn now to the magistrate judge's report-recommendation denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169

and defendants' motions. The magistrate judge recommends (U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1

that I grant defendants' motions and dismiss the complaint (1997) (when objections fail to address analysis directly, court

as to all defendants. The report-recommendation clearly reviews report-recommendation for clear error); Fed.R.Civ.P.

describes the grounds on which the magistrate judge 72(b), Advisory Comm. Note (when no specific, written

recommends dismissal as to each defendant. Fed.R.Civ.P. objections filed, “court need only satisfy itself that there is

72(b) requires the district judge to make a de novo

recommendation”). Correctional Facility in Watertown, New York. He applied

for an interstate compact because he wanted to return to

*3 Because Brown fails to make specific objections or South Carolina to live with his common law wife, Pamela

provide any basis for his general objections, I review the Reid. During the application process, he was interviewed by

report-recommendation for clear error. After careful review, the facility's parole officer, identified only as defendant John

I conclude that the magistrate judge's report-recommendation Doe # 1. After signing the necessary papers, his application

is well-reasoned and is not clearly erroneous.1 The was forwarded to defendant Andrew Peters, the facility's

magistrate judge employed the proper standard, accurately superintendent, who reviewed, signed and forwarded the

recited the facts, and reasonably applied the law to those facts. papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;

Consequently, I adopt the report-recommendation. Exs. A, B.

On or about January 15, 1992, while his compact was waiting

for review at the Interstate Bureau, plaintiff was approved for

CONCLUSION work release and sent to the Lincoln Work Release Center

in New York City. While at the center, plaintiff spoke to a

Because plaintiff's proposed amendment demonstrates that

parole officer, defendant John Doe # 2, and told him that

amendment would be futile, I deny plaintiff's motion for leave

he was seeking a compact that would return him to South

to amend his complaint. I approve the magistrate judge's

Carolina upon his conditional release. Plaintiff claims the

recommendation and grant defendants' motions to dismiss.

parole officer told him that he would handle the necessary

Plaintiff's complaint is dismissed in its entirety.

paperwork, although the officer had had no experience with

an interstate compact. Amend. Compl. at ¶¶ 3, 4.

IT IS SO ORDERED.

*4 Plaintiff, meanwhile, asked Reid whether any officials

had contacted her in South Carolina regarding his prospective

ORDER and REPORT–RECOMMENDATION residence in that state. Upon discovering no one had contacted

her, plaintiff asked a lawyer he knew, Navron Ponds, to

This matter was referred to the undersigned for report and

inquire as to his compact status. In March, 1992, the

recommendation by the Hon. Rosemary S. Pooler, United

lawyer spoke with defendant Susan Bishop, who is the

States District Judge, by Standing Order dated November

director of the interstate compact program in South Carolina.

12, 1986. Currently before this Court are a number of

Bishop allegedly told Ponds that plaintiff “was disapproved

motions. Defendants Peters and Williams have filed a motion

because there was a discrepancy about approving plaintiff['s]

to dismiss (dkt.13); defendants Bishop, Magee, Barton and

compact.” The “discrepancy” was the fact that plaintiff owed

McMahan have filed a motion for summary judgment, or in

the state of South Carolina eighty-six days of confinement

the alternative to dismiss (dkt.20); and defendants Herman,

from a previous sentence. Plaintiff claims Bishop told Ponds

Stewart and Stanford also have filed a motion to dismiss

to contact defendants Cecil Magee and Frank Barton, who

(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,

worked for the South Carolina Parole Department. Sometime

33, 38). Defendants Bishop, Magee and McMahan have filed

in March, 1992, Ponds made some calls to Barton and Magee.

a motion to stay discovery (dkt.41) and plaintiff has filed a

A verbal agreement was reached, and plaintiff, upon speaking

motion to extend time (dkt.44) in which to file opposition to

with Barton and Magee was told that his compact had been

the latter motion for a stay of discovery.

approved. He also was told that he should report to the South

Carolina Department of Parole upon being released. Amend.

The Court addresses these issues seriatim.

Compl. at ¶¶ 5–7.

Prior to leaving the Lincoln Work Release Center, plaintiff

BACKGROUND processed paperwork related to his interstate compact. His

paperwork was sent by Doe # 2 to defendant Joseph Williams,

Plaintiff's amended complaint, which he has brought pursuant the superintendent of the center. Williams reviewed, signed

to 42 U.S.C. § 1983, alleges the following facts. In and returned the paperwork to plaintiff. On May 1, 1992,

Carolina. Three days later, he entered a South Carolina parole DISCUSSION

office and promptly was arrested because of the eighty-

six days of confinement that he owed the state. Plaintiff's A. Motion to Dismiss by Williams and Peters.

paperwork was given to defendant John McMahan, a parole Williams and Peters have filed a motion to dismiss plaintiff's

officer. Plaintiff claims that McMahan never returned this complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds

paperwork to him. On May 20, 1992, the state of South that it fails to state a claim upon which relief may be

Carolina revoked plaintiff's parole and plaintiff was returned granted. In a Rule 12(b)(6) motion, all factual allegations

to prison to serve the eighty-six days that he owed. When he in the complaint must be taken and construed in plaintiff's

asked McMahan what would happen to his one year of parole favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d

from New York, the officer allegedly told him that his New Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).

York parole would run concurrently with his South Carolina The Court's role is not to assess whether plaintiffs have

parole, and that when he finished his South Carolina parole, raised questions of fact or demonstrated an entitlement

he would not owe any parole whatsoever. Plaintiff served the to a judgment as a matter of law, as in a motion made

eighty-six days he owed and was released on July 31, 1992. pursuant to FED.R.CIV.P. 56 for summary judgment, but

Amend. Compl. at ¶¶ 8–10. rather to determine whether plaintiff's complaint sufficiently

alleges all of the necessary legal elements to state a claim

In February, 1993, plaintiff was arrested on robbery charges under the law. See Christopher v. Laidlaw Transit, Inc.

in South Carolina. The charges ultimately were dropped, 899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.

but he apparently encountered some difficulties regarding New York City Transit Authority, 941 F.2d 119, 124 (2d

this arrest as a result of a parole hold that New York state Cir.1991)). Factual allegations in brief or memoranda may not

had placed upon him. Bishop's office told him that it had be considered. Fonte v. Board of Managers of Continental

nothing to do with his parole hold and that any problem that Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The

he had was between him and the state of New York. He Court now turns to the issues presented.

talked to authorities in Albany, New York regarding the parole

hold, but was not successful in his efforts to have the hold Personal involvement of defendants in alleged constitutional

removed. On September 30, 1993, after had been extradited deprivations is a prerequisite to an award of damages under

to New York as a fugitive from justice, plaintiff was given a § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).

preliminary hearing at Riker's Island, New York. The hearing As superintendents at New York State Correctional facilities,

officer found no probable cause that plaintiff had violated any Williams and Peter may be found personally involved in the

condition of parole. He was released. Amend. Compl. at ¶¶ alleged deprivation of plaintiff's constitutionally protected

11–14; Exs. C–J. rights by a showing that they: (1) directly participated in the

infraction; (2) knew of the infraction, but failed to remedy

*5 Plaintiff claims that he would not have suffered hardships the wrong; (3) created or continued a policy or custom under

if his interstate compact had been handled correctly. He which unconstitutional practices occurred; or (4) were grossly

alleges that defendant Deborah Stewart failed to follow up negligent in managing subordinates who caused unlawful

and see whether plaintiff had arrived in South Carolina. If she conditions or events. Id., (quoting Williams v. Smith, 781

had, he argues, she would have discovered that he had been F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also

arrested upon his arrival. He alleges that defendant Francis may be imposed against Williams or Peters with a showing

Herman, a parole officer at the Interstate Bureau failed to of gross negligence or deliberate indifference to plaintiff's

do his job by not investigating plaintiff's violation reports. constitutional rights. Id. Absent some personal involvement

Amend. Compl. at ¶¶ 15–17; Exs. F–I. by Williams or Peters in the allegedly constitutionally infirm

conduct of their subordinates, neither can be held liable under

Plaintiff asserts that the foregoing amounts violations of his § 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).

Eighth and Fourteenth Amendment rights, wherefore he both

compensatory and declaratory relief. *6 Plaintiff has not provided any evidence linking either

Williams or Peters to his alleged constitutional deprivations.

All that plaintiff has alleged is that Williams and Peters,

as superintendents, have reviewed and signed paperwork

that pro se complaints are held to “less stringent standards alleging that he was the appointed Senior Parole Officer at

than formal pleadings drafted by lawyers” for the purpose of a plaintiff's September 30, 1993 revocation hearing at Riker's

motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404 Island, plaintiff does not detail how Stanford violated his

U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972), constitutional rights. Absent some personal involvement by

plaintiff has not explained how the ministerial conduct of Stanford in the allegedly constitutionally infirm conduct of

these two defendants was violative of the Constitution. Their his subordinates, he cannot be held liable under § 1983. Gill,

motion to dimiss should be granted. 824 F.2d at 196.

*7 Accordingly, the Court finds that Stanford, Stewart and

B. Motion for Summary Judgment or to Dismiss by Bishop, Herman's motion to dismiss should be granted.

Magee, Barton and McMahan.

Bishop, Magee, Barton and McMahan have filed a motion

for summary judgment, or in the alternative a motion to D. Plaintiff's “John Doe” Claims.

dismiss. The Court will treat their motion as a motion to In so far as neither John Doe # 1 nor John Doe # 2 have been

dismiss. “[C]omplaints relying on the civil rights statutes are identified and served in this matter, the Court does not have

insufficient unless they contain some specific allegations of jurisdiction over these parties and does not reach the merits

fact indicating a deprivation of rights, instead of a litany of plaintiff's claims against them.

of general conclusions that shock but have no meaning.”

Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff

has not alleged specifically how the conduct of these four E. Discovery Motions.

defendants infringed upon his constitutional rights. In his Defendants Bishop, Magee and McMahan have filed a motion

amended complaint, he contends that defendants violated the to stay discovery until the Court has made a ruling on their

Constitution by “continuously breaching [[[their] duty” to motion to dismiss. Plaintiff has filed a motion to extend

him. This language underscores the defect with the complaint: the time in which he may file opposition to defendants'

if it alleges anything at all, it alleges that defendants were motion. Plaintiff, however, has filed his opposing response

negligent in handling plaintiff's interstate compact and parole. (dkt.47), therefore his instant discovery motion is denied as

To state a cognizable § 1983 claim, the prisoner must allege moot. In that the Court recommends granting defendants'

actions or omissions sufficient to demonstrate deliberate motion to dismiss, discovery in this matter would be fruitless.

indifference; mere negligence will not suffice. Hayes v. Accordingly, defendants' motion for a stay of discovery

New York City Dept. of Corrections, 84 F.3d 614, 620 (2d pending the resolution of their motion to dismiss is granted.

Cir.1996); Morales v. New York State Dep't of Corrections,

842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not

encompass a cause of action sounding in negligence). CONCLUSION

The Court finds that the claims against Bishop, Magee, Barton WHEREFORE, based upon the foregoing analysis, it is

and McMahan should be dismissed. hereby

ORDERED, that plaintiff's motion to extend the time to file

C. Motion to Dismiss by Herman, Stewart and Stanford. an opposing reply (dkt.44) is denied as moot; and it is further

Plaintiff's claim against Stewart is that she failed to follow

up and see whether plaintiff had arrived in South Carolina. ORDERED, that defendants Bishop, Magee and McMahan's

Herman, he likewise asserts, failed to do his job because he motion to stay discovery until their motion to dismiss is

did not investigate plaintiff's violation reports. Plaintiff has decided (dkt.41) is granted; and it is further

not alleged how these actions run afoul of the Constitution;

and again, these claims seem to be grounded in negligence, RECOMMENDED, that defendants Peters and Williams'

which is not actionable under § 1983. Hayes, 84 F.3d at 620. motion to dismiss (dkt.13) be granted; and it is further

Plaintiff's claim against Stanford must fail because his

and McMahan's motion to dismiss (dkt.20) be granted; and it TO THIS REPORT WITHIN TEN (10) DAYS WILL

is further PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of

RECOMMENDED, that defendants Herman, Stewart and Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28

Stanford's motion to dismiss (dkt.34) be granted. U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),

All Citations

the parties have ten (10) days within which to file written

objections to the foregoing report. Such objections shall be Not Reported in F.Supp., 1997 WL 599355

Footnotes

1 I note, however, that the report-recommendation would survive even de novo review.

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

2025 WL 618557 then redesignated to the Honorable Henry J. Ricardo, who

Only the Westlaw citation is currently available. issued a report (the “R&R”) recommending that the Court

United States District Court, S.D. New York. grant Defendants’ motion and dismiss Cruz's complaint in

full. R&R at 1, ECF No. 57. Before the Court are Cruz's timely

Marisol CRUZ, Plaintiff, objections to the R&R. Objs, ECF No. 59; see also ECF No.

v. 58. For the reasons stated below, the Court OVERRULES

NEW YORK CITY TRANSIT AUTHORITY Cruz's objections and ADOPTS the R&R in full.

- MTA, Collective Bargaining Manager

Martense Avitus, Afiya Garcia-Austin, Tanya

Forrester, Sandrea Flowers, Deborah Felice, BACKGROUND1

Sade Kronagay, and R Wallace, Defendants.

Cruz alleges that she suffered retaliation and discrimination

24 Civ. 89 (AT) (HJR) on the basis of religion and disability when MTA placed her

| on an unpaid leave of absence in early 2022 for refusing

Signed February 25, 2025 to comply with masking and test-or-vaccine requirements

| and denied her request for an accommodation (the “COVID

Filed February 26, 2025 Accommodation Allegations”); when Cruz was subjected

to an allegedly hostile work environment upon her return

Attorneys and Law Firms to work in July 2022 (the “Post-Return Harassment

Allegations”); and when she was fired in 2023 (the “2023

Marisol Cruz, New York, NY, Pro Se.

Termination Allegations”). R&R at 2–4; Compl. at 10–16.2

Renee Lucille Cyr, Steve S. Efron, Steve S. Efron, Attorney

at Law, New York, NY, for Defendants. The R&R recommends that the Court dismiss with

prejudice Cruz's NYSHRL claims arising out of the COVID

Accommodation and Post-Return Harassment Allegations

ORDER ADOPTING REPORT for lack of subject matter jurisdiction because Cruz

AND RECOMMENDATION unsuccessfully pursued these claims before the New York

State Division of Human Rights (“SDHR”). R&R at 14;

ANALISA TORRES, District Judge: see Desardouin v. City of Rochester, 708 F.3d 102, 106

(2d Cir. 2013) (explaining that New York Executive Law

*1 Plaintiff pro se, Marisol Cruz, a former New York City

§ 297(9) precludes courts from exercising jurisdiction over

Transit Authority (“MTA”) station agent, brings this action

discrimination claims first brought before a state or local

against Defendants, MTA, Martense Avitus, Afiya Garcia-

human rights commission except in certain circumstances not

Austin, Tanya Forrester, Sandrea Flowers, Deborah Felice,

applicable here).

Sade Kronagay, and R. Wallace, alleging that Defendants

violated Title VII of the Civil Rights Act of 1964 (“Title VII”),

Applying collateral estoppel and res judicata principles, the

42 U.S.C. § 2000e et seq.; the Americans with Disabilities

R&R also recommends that the Court dismiss with prejudice

Act (“ADA”), 42 U.S.C. § 12101 et seq.; the New York State

Cruz's ADA, Title VII, and NYCHRL claims arising out of

Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et

the COVID Accommodation and Post-Return Harassment

seq.; the New York City Human Rights Law (“NYCHRL”),

Allegations that were litigated in connection with Cruz's

N.Y. Admin. Code § 8-101 et seq.; and New York's criminal

SDHR complaint because the claims are all based on the same

prohibition on “aggravated harassment,” N.Y. Penal Law §

“gravamen or are part of the same factual grouping” as the

240.30, by discriminating against her on the basis of religion

NYSHRL claims that the SDHR rejected. Kirkland v. City of

and disability. See generally Compl., ECF No. 1.

Peekskill, 828 F.2d 104, 110 (2d Cir. 1987) (citation omitted);

R&R at 14–17.

After Defendants moved to dismiss the complaint under

Federal Rule of Civil Procedure 12(b)(1) and (b)(6), the Court

*2 To the extent Cruz's ADA and Title VII claims are

prejudice for failure to exhaust administrative remedies. R&R *2 (S.D.N.Y. Aug. 19, 2014) (citation omitted).

at 17–20. The R&R explains that the ADA and Title VII

both require administrative exhaustion, and Cruz has not When a party makes specific objections, the Court reviews

alleged or otherwise shown that she properly exhausted her de novo those portions of the R&R to which objection is

claims related to allegations that post-date the filing of her made. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).

SDHR complaint. Id. at 17–18 (citing Soules v. Connecticut, However, when a party “makes only conclusory or general

882 F.3d 52, 57 (2d Cir. 2018)). Judge Ricardo considered objections, or simply reiterates the[ir] original arguments,”

whether the post-SDHR allegations could relate back to the the Court reviews the R&R “strictly for clear error.” Harris

earlier allegations for purposes of administrative exhaustion v. TD Ameritrade Inc., 338 F. Supp. 3d 170, 174 (S.D.N.Y.

but found that “Cruz has not plausibly alleged that the clashes 2018) (citation omitted), aff'd, 837 F. App'x 841 (2d Cir.

with her supervisors in the second half of 2022 and in 2023 2021) (summary order); see also Bailey v. U.S. Citizenship

that were not presented to the SDHR were in any way related & Immigr. Servs., No. 13 Civ. 1064, 2014 WL 2855041,

to her earlier request for an accommodation.” Id. at 18; see at *1 (S.D.N.Y. June 20, 2014) (“[O]bjections that are not

id. at 18–20. clearly aimed at particular findings ... do not trigger de

novo review.”); Edwards v. Fischer, 414 F. Supp. 2d 342,

Additionally, because Cruz pursued her retaliation claims 346–47 (S.D.N.Y. 2006) (“[W]here objections are merely

related to the 2023 Termination Allegations in binding perfunctory responses, argued in an attempt to engage the

arbitration, and the arbitrator “d[id] not find that there district court in a rehashing of the same arguments set forth in

is any basis to conclude that [Defendants’] actions were the original [motion], reviewing courts should review a report

retaliatory,” the R&R recommends that the Court dismiss and recommendation for clear error.” (citation omitted)). An

Cruz's retaliation claims related to the 2023 Termination R&R is clearly erroneous if the reviewing court is “left with

Allegations as barred by collateral estoppel. Id. at 20–22; the definite and firm conviction that a mistake has been

see Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001)

2003) (explaining that collateral estoppel may apply to issues (citation omitted); see also Travel Sentry, Inc. v. Tropp, 669 F.

and claims resolved in arbitration when there has been a Supp. 2d 279, 283 (E.D.N.Y. 2009).

final determination on the merits). Finally, because the R&R

recommends dismissing Cruz's federal claims for the various

reasons stated above, it also recommends that the Court II. Cruz's Objections

decline to exercise supplemental jurisdiction over Cruz's *3 Cruz objects to the R&R's conclusions with respect to

remaining NYSHRL and NYCHRL claims arising out of “(1) Jurisdiction, (2) Individual liability, and (3) Retaliation.”

those portions of the Post-Return Harassment Allegations Objs. at 1–2. The Court addresses each category of objection

not litigated before the SDHR. R&R at 22–23; see Barr v. in turn.

Macys.com, LLC, No. 22 Civ. 7867, 2023 WL 6393840, at

*6 (S.D.N.Y. Sept. 29, 2023) (“Typically courts decline to First, Cruz raises a general objection to the R&R's

exercise supplemental jurisdiction when the federal claims are “findings in matters of jurisdiction.” Id. at 2. Cruz states

dismissed.” (citing United Mine Workers of Am. v. Gibbs, 383 that she filed her complaint with the Equal Employment

U.S. 715, 726 (1966))).3 Opportunity Commission (“EEOC”) within 180 days of “the

discrimination act” and “was forced to file” her complaint

before the SDHR only “after the EEOC impeded the progress

of [her] discrimination claim.” Id. Reading Cruz's objections

DISCUSSION liberally, it appears that Cruz challenges an argument

Defendants raised in their motion to dismiss—specifically,

I. Legal Standard that Cruz's Title VII and ADA claims are untimely because

A district court “may accept, reject, or modify, in whole or in the SDHR complaint was filed more than 300 days after Cruz

part, the findings or recommendations made by the magistrate was placed on unpaid leave and MTA denied her request

judge.” 28 U.S.C. § 636(b)(1)(C). The Court may adopt those for an accommodation. See R&R at 12. In the R&R, Judge

portions of the R&R to which no objection is made “as long Ricardo wrote that “the Court need not reach the issue of

as no clear error is apparent from the face of the record.” timeliness because Cruz's federal claims based on the COVID

jurisdiction, res judicata, and collateral estoppel. Id. at 13. Cruz's claims concerning the 2023 Termination Allegations

Because Cruz raises only a general and conclusory challenge are barred by collateral estoppel following the arbitrator's

to the R&R's “findings in matters of jurisdiction,” Objs. at 2, adverse determination, and that Cruz's federal claims not

the Court must review the R&R's jurisdictional conclusions litigated before the SDHR are otherwise barred for failure to

for clear error, see Harris, 338 F. Supp. 3d at 174; Edwards, exhaust administrative remedies, are not clearly erroneous.

414 F. Supp. 2d at 346–47. Having closely reviewed Judge See R&R at 17, 20–22. Accordingly, this objection, too, is

Ricardo's thorough and well-reasoned R&R, the Court finds overruled.

that the R&R's conclusions with respect to jurisdiction—that

the Court lacks subject matter jurisdiction over Cruz's claims The Court has reviewed the remainder of Judge Ricardo's

litigated before the SDHR, and that the Court should decline thorough and well-reasoned R&R for clear error and finds

to exercise supplemental jurisdiction over Cruz's surviving none.

state law claims—“are not clearly erroneous or contrary to

law.” Eisenberg v. New Eng. Motor Freight, Inc., 564 F. Supp.

2d 224, 226 (S.D.N.Y. 2008).

CONCLUSION

Second, Cruz objects to the R&R's “recommendation of no For the foregoing reasons, the Court overrules Cruz's

individual liability.” Objs. at 2. The R&R explains that, objections, adopts the R&R in full, and orders as follows:

“unlike [the] NYSHRL and NYCHRL, the ADA and Title

VII do not provide for individual liability” when defendants 1. Cruz's NYSHRL claims arising out of the COVID

are sued in their individual or personal capacities. R&R at Accommodation Allegations and those portions of the

23 (collecting cases). Accordingly, the R&R recommends Post-Return Harassment Allegations that were litigated

that, “[e]ven if the Court determines that Cruz's ADA and before the SDHR are DISMISSED, with prejudice, for

Title VII [claims] are not otherwise barred, they should be lack of subject matter jurisdiction;

dismissed with regard to the individual Defendants.” Id. The

2. Cruz's ADA, Title VII, and NYCHRL claims related

R&R's conclusion that the ADA and Title VII do not provide

to the COVID Accommodation Allegations and those

for individual liability is correct. See Keitt v. City of New

portions of the Post-Return Harassment Allegations that

York, 882 F. Supp. 2d 412, 426 (S.D.N.Y. 2011) (“Individuals

[sued] in their personal capacities are not proper defendants

were litigated before the SDHR are DISMISSED, with

on claims brought under the ADA.” (citing Harris v. Mills,

prejudice, as barred by res judicata and collateral

estoppel;

572 F.3d 66, 72 (2d Cir. 2009))); Petrisch v. JP Morgan

Chase, 789 F. Supp. 2d 437, 454 (S.D.N.Y. 2011) (“It is well- 3. Cruz's ADA and Title VII claims based on those

settled that employees may not be sued in their individual portions of the Post-Return Harassment Allegations

capacity under Title VII.” (citing Sassaman v. Gamache, 566 that post-date the SDHR complaint are DISMISSED,

F.3d 307, 315–16 (2d Cir. 2009))). Even if the ADA and Title without prejudice, for failure to exhaust administrative

VII did provide for individual liability, the R&R's conclusion remedies;

that Cruz's ADA and Title VII claims are “otherwise barred”

under res judicata and collateral estoppel and for failure to 4. Cruz's claims arising out of the 2023 Termination

exhaust administrative remedies, a conclusion to which Cruz Allegations are DISMISSED, with prejudice, as barred

has not objected, is not clearly erroneous. R&R at 23. by collateral estoppel;

*4 Third, Cruz objects that she “engaged in protected 5. Cruz's NYSHRL and NYCHRL claims based on those

activity and [that] Defendants aided and abetted [MTA] portions of the Post-Return Harassment Allegations

in increase[d] scrutiny, repeated harassment, aggravated that post-date the SDHR complaint are DISMISSED,

harassment, and discharge[,] which in these circumstances without prejudice, for lack of supplemental subject

is considered retaliation.” Objs. at 3. Because this objection matter jurisdiction; and

seeks to relitigate issues already raised before Judge Ricardo,

6. Cruz's claim for “aggravated harassment” under New

the Court must review the relevant portions of the R&R for

York Penal Law § 240.30 is DISMISSED, with

clear error. See Edwards, 414 F. Supp. 2d at 346–47; Bailey,

Any motion for leave to amend the complaint must be filed by SO ORDERED.

March 18, 2025, and must be accompanied by (1) a proposed

amended complaint; (2) a redline or a description of the

All Citations

changes from the original complaint to the proposed amended

complaint; and (3) a memorandum of law explaining how the Not Reported in Fed. Supp., 2025 WL 618557

amendments address the deficiencies described in the R&R

and this Order.

Footnotes

1 The Court presumes familiarity with the facts and procedural history of this action as detailed in the R&R and

therefore summarizes only the key facts here. See R&R at 1–8.

2 Citations to the complaint at ECF No. 1 are to the ECF page number.

3 The R&R also recommends dismissing with prejudice Cruz's claim for “aggravated harassment” under New

York Penal Law § 240.30 because the statute does not confer a private right of action. R&R at 24; McFadden v.

Ortiz, No. 12 Civ. 1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (“[T]here is no private right of action

to enforce either state or federal criminal statutes. Therefore, even assuming, arguendo, that Defendants

violated some criminal statutes, Plaintiff may not bring a claim based on those statutes to enforce New York

[c]riminal [l]aw.” (citation omitted)).

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

2025 WL 209598 A. Cruz's COVID Accommodation Request

In response to the COVID-19 pandemic, the Governor

Only the Westlaw citation is currently available.

of New York issued a state-wide mask mandate in April

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

of 2020. Executive Order 202.17: Continuing Temporary

Marisol CRUZ, Plaintiff, Suspension and Modification of Laws Relating to the Disaster

v.

Emergency, 9 N.Y.C.R.R. 8.202.27.1 In response, the MTA

NEW YORK CITY TRANSIT, et al., Defendants. required all employees and customers to wear masks when

in the subway system. New York State Division of Human

24-CV-89 (AT) (HJR) Rights (“SDHR”) Complaint, filed on December 23, 2022

| (the “SDHR Compl.”), Dkt. No. 31-1.2 This requirement

Signed January 16, 2025 applied to Station Agents such as Cruz. Compl. at 11. In

addition to the mask requirement, Station Agents were also

Attorneys and Law Firms

required either to receive a COVID-19 vaccine or to submit

Marisol Cruz, New York, NY, Pro Se. to weekly COVID testing. SDHR Compl. Exhibits at 4, Dkt.

No. 31-2.

Renee Lucille Cyr, Steve S. Efron, Steve S. Efron, Attorney

at Law, New York, NY, for Defendants. Cruz requested a religious exemption from the masking and

test-or-vaccine requirements on December 24, 2021. Compl.

at 11; Defendants' Memorandum of Law in Support of Motion

REPORT AND RECOMMENDATION to Dismiss the Complaint in its Entirety (“Def. Mem.”),

Dkt. No. 34, at 4–5. While she did not request a disability

HENRY J. RICARDO, United States Magistrate Judge. exemption per se, her religious accommodation application

stated that Cruz “ha[d] a disability” and was “protected under

*1 To the Honorable Analisa Torres, United States the American with Disabilities Act.” Id.

District Judge:

Plaintiff Marisol Cruz, proceeding pro se, brings this *2 During the week following her request, but before the

action alleging that the New York City Transit Authority MTA ruled on it, Cruz reported to work without a mask. Id.

(“MTA”) and its employees violated federal, state, and local As a result, she was referred to the MTA Labor Relations

employment laws, inter alia, by discriminating against her Department. Id.; Compl. at 11. After continuing to refuse to

based on her religious beliefs and disability status. Defendants wear a mask at work on December 30, Cruz was placed on an

have moved to dismiss the case under Rules 12(b)(1) and unpaid leave of absence. Id.; Def. Mem. at 5. Cruz filed for

12(b)(6) of the Federal Rules of Civil Procedure, arguing unemployment insurance on January 12, which she ultimately

that her claims are time-barred, that she failed to exhaust received. Compl. at 12–13.

administrative remedies prior to filing in federal court, that

several of her claims are barred by the doctrine of issue On January 19, 2022, the MTA denied Cruz's request for

preclusion, that her federal claims against the individual accommodation, determining that it would pose an undue

defendants are not permitted by the relevant statutes, that she hardship due to safety concerns. SDHR Compl. Exhibits at 4.

lacks standing to enforce criminal statutes, and that she did Cruz alleges that she was not made aware of this denial until

not adequately plead her causes of action. For the reasons set April 21, 2022. Compl. at 12. For ease of reference, Cruz's

forth below, Defendants' motion should be GRANTED. allegations concerning her request for an accommodation

with respect to COVID-related rules and her unpaid leave

of absence in early 2022 are referred to as the “COVID

I. FACTUAL BACKGROUND

Accommodation Allegations.”

Cruz began working as a Station Agent for the MTA in 2006.

Complaint (“Compl.”), Dkt. No. 1, at 10. In this role, she

worked in a booth providing customer service to subway B. Cruz's Return to Work and Alleged Harassment

riders. Id. In late 2021, Cruz worked at the Wall Street station On July 11, 2022, Cruz returned to work at the MTA, but

on the No. 2 line. Id. at 10-11. at a different station, the 8th Street station, and with a

that her new supervisor, Sade Kornagay, “made references” also referenced disputes with her supervisor at the 8th Street

to her previous work location, she does not allege that station since returning to work in July 2022, claiming that

Kornagay mentioned or was aware of Cruz's 2021 request for Kornagay “harassed” her and alleging a November 15, 2022

accommodation. Id. incident in which the MTA “interfered” with Cruz's attempt

to file a police report against Kornagay complaining of

Cruz experienced friction with Kornagay soon after returning harassment. Id. at 19. Thus, the SDHR complaint contained at

to work. She alleges that on August 16, 2022, Kornagay least some of the Post-Return Harassment Allegations based

“created a hostile work environment.” Compl. at 13–14. on events from June 8, 2022 through at least November 15,

The Complaint alleges a number of other harassing actions 2022.

committed by Kornagay and other supervisors in late 2022

and the first half of 2023. Id. For ease of reference, The SDHR Complaint did not explain how these Post-Return

Cruz's allegations concerning the period from when she Harassment Allegations related to Cruz's religious beliefs or

returned to work in July 2022 up to the June 9, 2023, disability, beyond the single assertion that Kornagay asked

incident described below are referred to as the “Post-Return if Cruz had previously worked at the Wall Street station.

Harassment Allegations.” Id. Although the SDHR Complaint was not initially filed

with the federal Equal Opportunity Employment Opportunity

Commission (“EEOC”), it was considered simultaneously

C. Cruz's 2023 Termination filed with the EEOC. Dkt. No. 34-3.

On June 9, 2023, defendant Deborah Felice was called to the

8th Street station where Cruz was working after a dispute On September 19, 2023, the SDHR issued its ruling.

between Cruz and a cleaning team. Compl. at 15; Def. Mem. Determination and Order After Investigation (“SDHR

at 14. Following this dispute, Cruz did not return to work at Determination”), Dkt. No. 34-4. The SDHR found that there

her assigned workplace. Compl. at 15; Def. Mem. at 14. On was no probable cause to believe that the MTA had engaged

June 28, 2023, Cruz “returned to work” at the MTA's Labor in the unlawful discriminatory practices alleged. Id. at 1. It

Relations office. Compl. at 16. On July 5, 2023, Cruz was also found that the MTA's decision to place Cruz on unpaid

suspended without pay and the MTA began the disciplinary leave due to her refusal to wear a mask or submit to regular

process that ultimately resulted in her termination in August COVID testing was a reasonable accommodation. Id. at 3.

2023. Id. The hostile acts alleged by Cruz during this period Thus, the SDHR adjudicated claims based on Cruz's COVID

primarily involved her workplace attire and physical entrance Accommodation Allegations.

into her workspace; none involved or referenced the MTA's

mask policy or its test-or-vaccine policy. Id. For ease of The SDHR Determination also addressed certain of Cruz's

reference, Cruz's allegations concerning the June 9, 2023 Post-Return Harassment Allegations, finding that Cruz

incident and events that followed it, including her termination demonstrated neither that the behavior she complained of

from the MTA, are referred to as the “2023 Termination after her return to work constituted harassment nor that it was

Allegations.” related to her religious beliefs or disability in any way. Id. at

3–4. More specifically, the SDHR Determination addressed

incidents involving Kornagay that occurred on August 16

D. The 2022 SDHR Complaint and November 15, 2022, but did not address any Post-

On December 23, 2022, Cruz filed a discrimination complaint Return Harassment Allegations occurring in 2023. There is

with the SDHR. SDHR Compl. at 12. In the SDHR no allegation or other showing that Cruz appealed from the

Complaint, Cruz alleged that she had been discriminated SDHR Determination in New York state court.

against on the basis of her religious beliefs and her disability,

identified as asthma. Id. The SDHR complaint cited the On October 26, 2023, the EEOC adopted the SDHR's

specific acts of the denial of a religious accommodation and findings. Compl. at 20.

being placed on unpaid leave as the basis for her claim. Id.

at 15. Thus, the SDHR Complaint included Cruz's COVID

Accommodation Allegations. E. The 2023 Arbitration

After the MTA suspended Cruz without pay in July 2023 in

independent arbitrator, pursuant to the collective bargaining referred to the undersigned.

agreement between the Transit Workers' Union and the

MTA. In the Matter of the Arbitration of New York City

Transit Authority and Transport Workers Union Local 100 III. LEGAL STANDARDS

re: Marisol Cruz; Pass #XXXXXX, DANS: 23-2757-0090

A. Rule 12(b)(1) Motion to Dismiss

and 23-2757-0091, by Arbitrator Philip L. Maier, dated

“[A] federal court generally may not rule on the merits of a

October 23, 2023 (“Arb. Opinion”), Dkt. No. 34-5.4 At the

case without first determining that it has jurisdiction over the

arbitration, Cruz made similar claims of harassment by her category of claim in suit ([i.e.,] subject-matter jurisdiction).”

supervisors in 2022 and 2023 that she makes in the present Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S.

action (i.e., the Post-Return Harassment Allegations), and 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). “A case

contended that her termination was retaliation for attempts to is properly dismissed for lack of subject matter jurisdiction

obtain redress for this harassment. Id. at 8–9; Pl. Opp. at 77– under Rule 12(b)(1) when the district court lacks the statutory

78. The independent arbitrator found that the MTA had just or constitutional power to adjudicate it.” Makarova v. United

cause to terminate Cruz. Arb. Opinion at 9–10. States, 201 F.3d 110, 113 (2d Cir. 2000). Where subject matter

jurisdiction is challenged, a plaintiff “bear[s] the burden of

‘showing by a preponderance of the evidence that subject

II. PROCEDURAL HISTORY

matter jurisdiction exists.’ ” APWU v. Potter, 343 F.3d 619,

*4 Cruz filed the Complaint on January 2, 2024. Dkt. No.

623 (2d Cir. 2003) (quoting Lunney v. United States, 319 F.3d

1. In addition to the MTA itself, she named seven individual

550, 554 (2d Cir. 2003)).

MTA employees as defendants: Martense Avitus, Afiya

Garcia-Austin, Tanya Forrester, Sandrea Flowers, Deborah

In considering a Rule 12(b)(1) motion, a court “must accept

Felice, Sade Kornagay, and R. Wallace. Id. at 2–7. She

as true all material factual allegations in the complaint.” J.S.

alleges that Defendants violated Title VII of the Civil Rights

ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.

Act of 1974 (“Title VII”), 42 U.S.C. §§ 2000e–2000e-17,

2004). The court “may consider affidavits and other materials

the Americans with Disabilities Act (“ADA”), 42 U.S.C.

beyond the pleadings to resolve the jurisdictional issue, but ...

§§ 12101–12213, New York State Human Rights Law

may not rely on conclusory or hearsay statements contained in

(“NYSHRL”), N.Y. Exec. Law §§ 290–297, and New York

the affidavits.” Id. In resolving a Rule 12(b)(1) motion, a court

City Human Rights Law (“NYCHRL”), N.Y. Admin. Code §§

may also “consider ‘matters of which judicial notice may be

8-101–131. Compl. at 3–8. She also alleges that Defendants

taken.’ ” Greenblatt v. Gluck, No. 03-CV-597 RWS, 2003 WL

committed “aggravated harassment” in violation of New York

1344953, at *1 n.1 (S.D.N.Y. Mar. 19, 2003) (quoting Hertz

Penal Law § 240.30. Id. at 8.

Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993)).

For relief, Cruz seeks a return to employment, compensation

for lost wages, a restoration of her pension, compensatory B. Rule 12(b)(6) Motion to Dismiss

damages for pain and suffering and damage to her reputation, Rule 12(b)(6) allows a party to move to dismiss a complaint

and punitive damages. Id. at 18. for “failure to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6)

On May 6, 2024, Defendants moved to dismiss the complaint. motion, a court accepts all factual allegations in the complaint

Dkt. No. 30. In support of this motion, they filed a as true and draws all reasonable inferences in the plaintiff's

memorandum of law, as well as the complete record of the favor. See, e.g., Mayor & City Council of Baltimore v.

SDHR proceeding and the arbitration opinion and award. Dkt. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013). To survive

No 34. Cruz filed a Declaration of Marisol Cruz in Opposition dismissal, a plaintiff must allege enough facts “to state a

to Motion to Dismiss (“Pl. Opp.”) on July 15, 2024. Dkt. claim to relief that is plausible on its face.” Bell Atl. Corp. v.

No. 43. On August 1, 2024, Defendants filed their Reply Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

Memorandum of Law (“Def. Reply”). Dkt. No. 46. On August (2007). Facial plausibility exists when the plaintiff “pleads

6, 2024, this case was referred to Magistrate Judge Katharine factual content that allows the court to draw the reasonable

H. Parker for a report and recommendation on the motion inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.

556, 127 S.Ct. 1955). “Importantly, the ‘plausibility’ standard estoppel. Id. at 14–15, 101 S.Ct. 173. Third, Defendants

applies only to a complaint's factual allegations. [The Court] argue that Cruz is collaterally estopped from bringing claims

give[s] no effect at all to ‘legal conclusions couched as factual based on her 2023 Termination Allegations because they were

allegations.’ ” Citigroup, Inc., 709 F.3d at 135 (quoting Port decided in a binding arbitration. Id. at 18, 101 S.Ct. 173.

Dock & Stone Corp. v. Oldcastle Northeast., Inc., 507 F.3d

117, 121 (2d Cir. 2007)). Defendants also argue that Cruz has failed to adequately plead

her causes of action on the merits. Id. at 18–23, 101 S.Ct.

173. Finally, Defendants contend that because there is no

C. Standards for Pro Se Litigants individual liability under the ADA or Title VII, those claims

*5 While pro se complaints are read liberally “to raise against the individual defendants should be dismissed, and

the strongest arguments they suggest,” Triestman v. Fed. because New York's Penal Law does not provide a private

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation right of action, the aggravated harassment cause of action

omitted), they must still state a plausible claim for relief. should be dismissed. Id. at 24–25, 101 S.Ct. 173. The Court

Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Thus, a will address these arguments in turn.

district court should dismiss a pro se plaintiff's complaint if it

“fail[s] to meet minimum pleading requirements.” Kinsey v.

Bloomberg, No. 12-CV-8936 (PAE) (JCF), 2014 WL 630670, A. Timeliness and Exhaustion of Federal Claims

at *3 (S.D.N.Y. Feb. 18, 2014). Based on The COVID Accommodation Allegations

“[A] plaintiff seeking to bring a claim pursuant to the

Submissions made by pro se plaintiffs are held “to less Americans with Disabilities Act (“ADA”) [or] Title VII ...

stringent standards than formal pleadings drafted by lawyers.” must exhaust administrative remedies through the EEOC or

Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d [the state administrative agency].” Soules v. Connecticut,

163 (1980) (internal quotations omitted); see also Harris v. Dep't of Emergency Servs. & Pub. Prot., 882 F.3d 52, 57

Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to (2d Cir. 2018). To exhaust their administrative remedies,

construe a pro se complaint liberally”). As a result, the Court a plaintiff “must file a charge of discrimination with the

may consider allegations that appear in a pro se plaintiff's EEOC ‘within three hundred days after the alleged unlawful

motion papers or other submissions to the Court as well as in employment practice occurred,’ 42 U.S.C. § 2000e-5(e)(1),

his pleadings. See, e.g., Freud v. N.Y.C. Dep't of Educ., No. and must then file an action in federal court within 90

21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. days of receiving a right-to-sue letter from the agency, id. §

25, 2022) (courts “may also consider factual statements made 2000e-5(f)(1). Duplan v. City of New York, 888 F.3d 612, 621–

in the pro se Plaintiff's opposition to the motion to dismiss”) 22 (2d Cir. 2018).

(citing Walker, 717 F.3d at 122 n.1). Nevertheless, pro se

plaintiffs are not excused from the normal rules of pleading; *6 Cruz was placed on leave without pay on December 29,

“dismissal ... is proper if the complaint lacks an allegation 2021, effective December 30, due to her failure to comply

regarding an element necessary to obtain relief.” Geldzahler with the MTA's masking requirement. Compl. at 11. The MTA

v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) formally denied her request for an accommodation on January

(cleaned up). 19, 2022. Dkt. No. 34-2 at 4. However, Cruz claims that this

denial was not transmitted to her until April 26, 2022. Compl.

at 12. Defendants argue that because Cruz filed her SDHR

IV. ANALYSIS complaint more than 300 days after either of those dates, her

Defendants argue that all of Cruz's claims should be Title VII and ADA claims should be dismissed as untimely

dismissed. First, they contend that the state law claims under Rule 12(b)(6). Def. Mem. at 14–15.

litigated in the SDHR (which include claims based on the

COVID Accommodation Allegations and at least some of In response, Cruz writes that she first mailed her complaint

the Post-Return Harassment Allegations) should be dismissed to the EEOC in June of 2022. She claims that later that

under Rule 12(b)(1) because Cruz's election to pursue these month she attempted to file with the EEOC in person, but was

state law claims in the SDHR deprives this Court of subject unsuccessful because the EEOC offices were closed to walk-

matter jurisdiction. Def. Mem. at 15–16. Second, they ins due to the pandemic. Pl. Opp. at 4. Cruz has provided what

July through December of 2022. Id. at 87–92. She does not Cruz on these claims. Defendants contend that Cruz failed to

offer an explanation for her delay in filing with the SDHR, appeal from the SDHR Determination in state court and Cruz

which allows for dual-filing with the EEOC. never rebuts this assertion. Def. Mem. at 22.

Ultimately, the Court need not reach the issue of timeliness Accordingly, this Court lacks subject matter jurisdiction over

because Cruz's federal claims based on the COVID the state law claims that Cruz pursued in the SDHR because

Accommodation Allegations made in the SDHR should be she elected to bring those claims in a state administrative

dismissed on other grounds. agency and did not appeal from its decision. This means

that state law claims based on the COVID Accommodation

Allegations and those Post-Return Harassment Allegations

B. The Court Lacks Subject Matter Jurisdiction Over made in the SDHR should be dismissed under Rule 12(b)(1).

Cruz's State Law Claims Based Upon Allegations See Desardouin, 708 F.3d at 106.

Made in the SDHR Complaint

An individual alleging violations of the NYSHRL may

either file suit in court or bring the claims before a local C. Federal Law and Local Law Claims Based on the

commission on human rights. N.Y. Exec. Law § 297(9). After Facts Alleged in the SDHR Complaint Should Be

an unfavorable decision from the state administrative agency, Dismissed Under the Doctrine of Collateral Estoppel

a plaintiff can only appeal from that decision in state court. *7 “Even though a plaintiff's factual allegations must be

Id. at 127 (“Furthermore, once a plaintiff brings a case before accepted as true and all reasonable inferences drawn in the

the NYSDHR, he or she may appeal only to the Supreme plaintiff's favor on a motion to dismiss [pursuant to Rule 12(b)

Court of State of New York.”) (citing N.Y. Exec. Law § 298). (6)], collateral estoppel will nonetheless bar a plaintiff's claim

The Second Circuit has ruled that if a plaintiff files a claim when the plaintiff's ‘factual allegations have been decided

with the New York State Division of Human Rights, federal otherwise in previous litigation.’ ” Poindexter v. Cash Money

courts lack subject matter jurisdiction over those claims. Records, No. 13-CV-1155 (RWS), 2014 WL 818955, *3

Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d Cir. (S.D.N.Y. Mar. 3, 2014) (quoting Jacobs v. Law Offices

2013) (upholding district court's dismissal of case for lack of of Leonard N. Flamm, No. 4-CV-7607, 2005 WL 1844642

subject matter jurisdiction where plaintiff brought identical (DC)), at *3 (S.D.N.Y. July 29, 2005). While courts “apply

claims in SDHR). federal law in determining the preclusive effect of a federal

judgment and New York law in determining the preclusive

In her SDHR complaint, which asserted violations of the effect of a New York state court judgment, ... there is no

NYSHRL, Cruz alleged that the MTA and its employees, discernible difference between federal and New York law

Flowers and Forrester, Defendants in this lawsuit as well, concerning ... collateral estoppel.” Marvel Characters, Inc. v.

discriminated against her based upon her religion and Simon, 310 F.3d 280, 286 (2d Cir. 2002). “Under New York

disability. SDHR Compl. at 12–14. Thus, Cruz pursued law, a claim will be barred by a determination in an earlier

claims based on her COVID Accommodation Allegations in action if both causes of action are grounded on the same

the SDHR. Additionally, the SDHR complaint asserted state gravamen or are part of the same ‘factual grouping,’ even if

law claims based upon certain incidents that are part of the the later claim is brought under a different legal theory of

Post-Return Harassment Allegations. Id. at 18–19, 101 S.Ct. recovery.” Kirkland v. City of Peekskill, 828 F.2d 104, 110 (2d

173. Cir. 1987).

Cruz's Complaint filed here relies on these same COVID Under New York law, “ ‘res judicata and collateral estoppel

Accommodation Allegations made in the SDHR. Compare are applicable to give conclusive effect to the quasi-judicial

Compl. at 11–13 with SDHR Complaint at 18–19. In both determinations of administrative agencies ... when rendered

complaints, Cruz alleges that she was discriminated against pursuant to the adjudicatory authority of an agency to decide

because the MTA did not provide accommodations for her cases brought before its tribunals employing procedures

religious beliefs and disability, and by placing her on unpaid substantially similar to those used in a court of law....’ ”

leave. Id. Cruz's Complaint also makes the same Post- DeCintio v. Westchester County Medical Center, 821 F.2d

Return Harassment Allegations that were made in the SDHR, 111, 117 (2d Cir. 1987) (quoting Ryan v. New York Telephone

50 (1987). collateral estoppel (Cruz's federal and local law claims). This

leaves the second category – claims based on allegations that

In her SDHR Complaint, Cruz only asserted claims under were not made in the SDHR. To the extent they fall within

the NYSHRL. In the present action, she brings claims this second category and are premised on factual allegations

grounded in the ADA, Title VII, and NYCHRL that that were not presented to the SDHR, Cruz's federal claims

are based on the same factual allegations presented in for violation of the ADA and Title VII should be dismissed

the SDHR proceeding. More specifically, both the SDHR for failure to exhaust administrative remedies.

complaint and the instant Complaint assert Cruz's COVID

Accommodation Allegations. See Compl. at 9 (“[Defendants] Cruz asserts claims in this action that are grounded in

did not accommodate my reasonable religious accommodate allegations that were not made in her December 2022 SDHR

[SIC]. Put on unpaid leave.”); SDHR Compl. at 15 (under Complaint. These include allegations of certain hostile and

“Acts of Discrimination” section, checking box for “Denied harassing interactions that occurred after she returned to work

me an accommodation for my religious practices” and at the 8th Street station on July 8, 2022, i.e., a portion

writing next to “Other” box writing “Unpaid leave for six of the Post-Return Harassment Allegations (particularly

months.”). Both complaints challenge the MTA's decision those occurring in 2023) as well as the 2023 Termination

not to provide Cruz an accommodation for her religious Allegations.

beliefs and disability, and its decision to place her on

unpaid administrative leave when she refused to adhere to its Cruz states that she attempted to amend her SDHR Complaint

masking and test or vaccine policies. Compl. at 11–12; SDHR to include these additional allegations, but the SDHR ruled

Complaint at 18–19. against her before she could do so. Pl. Opp. at 5. She also

filed a second dual charge/complaint with the SDHR and

Additionally, Cruz asserts claims in this action that are the EEOC in January of 2024, which was after the litigation

based on the same Post-Return Harassment Allegations that Complaint was filed. Id. She does not claim to have received

were advanced in the SDHR Complaint. Most notably, a final determination from the SDHR or a right-to-sue letter

both complaints refer to an August 16, 2022 incident in from the EEOC in relation to this second complaint. Cruz

which Kornagay allegedly tried to force Cruz to violate has therefore has not exhausted her administrative remedies

MTA policies and a November 15, 2022 incident in which with regard to the alleged discriminatory actions that were

Defendants allegedly interfered with Cruz filing a police not mentioned in the SDHR complaint, and the federal claims

complaint. See Compl. at 13-14; SDHR Complaint at 19.5 that require exhaustion–i.e., her ADA and Title VII claims–

should be dismissed without prejudice. See, e.g., Soules v.

Because Cruz previously litigated these same COVID Connecticut, 882 F.3d 52, 57 (2d Cir. 2018).

Accommodation Allegations and Post-Return Harassment

Allegations in the SDHR, the SDHR rejected her claims based In her opposition papers, Cruz claims that defendants

on these allegations, and she did not appeal from this decision Kornagay and Felice acted in retaliation. Pl. Opp. at 3–4. Cruz

in state court, Cruz's ADA, Title VII, and NYCHRL claims presumably makes this assertion so she can argue that these

that are based on the COVID Accommodation Allegations later incidents relate back to the earlier incidents, for which

and the Post-Return Harassment Allegations made in the she did utilize administrative remedies. See Williams v. N.Y.

SDHR complaint should be dismissed under Rule 12(b)(6). City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (Claims not

raised in an EEOC [or EEO] complaint ... may be brought in

federal court if they are ‘reasonably related’ to the claim filed

D. Cruz Has Not Exhausted Her Administrative with the agency.”) (citing Butts v. City of N.Y. Dep't of Hous.

Remedies with Regard to Federal Claims Premised on Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)).

Allegations Not Presented to the SDHR

*8 As a matter of logic, Cruz's claims fall into two, mutually However, Cruz has not plausibly alleged that the clashes with

exclusive categories: (1) claims based on allegations made her supervisors in the second half of 2022 and in 2023 that

to the SDHR, and (2) claims based on allegations that were were not presented to the SDHR were in any way related

not made to the SDHR. As explained above, the claims to her earlier request for an accommodation. At the outset,

falling in the first category should be dismissed either for it is worth noting that the SDHR specifically addressed two

in over lost property documents and a November 15, 2022 Ultimately, Cruz fails plausibly to allege that the disputes

confrontation in the station booth. After considering these with her new supervisors at the 8th Street station were in

allegations, the SDHR observed that Cruz had complained retaliation for her earlier request for accommodation. Because

that her supervisors were “harassing” her even before the she has not exhausted her administrative remedies regarding

pandemic, and concluded, “the investigation did not reveal the events not included in her first SDHR complaint, and these

any evidence that these supervisory actions were in any way events are not related to her prior dual SDHR/EEOC filing,

related to Complainant's religion, disability, or any protected these federal claims should be dismissed without prejudice.

category under the law. Complainant has failed to establish

any connection between her protected characteristics and any

of her allegations, and has only provided speculative and E. Cruz is Collaterally Estopped from Bringing

conclusory statements.” SDHR Determination at 4. Claims Based On Her 2023 Termination Allegations

The doctrine of collateral estoppel precludes subsequent

In her opposition, Cruz provided a copy of the letter she sent litigation if “(1) the issue in question was actually and

to the Office of Equal Employment Opportunity complaining necessarily decided in a prior proceeding, and (2) the party

about these and other events in late 2022 and 2023. Pl. against whom the doctrine is asserted had a full and fair

Opp. at 69–73. But this summary of the actions taken by opportunity to litigate the issue in the first proceeding.”

Kornagay and Felice does not plausibly allege retaliation. Moccio v NY State Off. of Ct. Admin., 95 F.3d 195, 200 (2d

Cruz's primary basis for alleging retaliation is that Kornagay Cir 1996). “Under New York law as it has evolved, collateral

asked Cruz in July 22 whether she had worked at the Wall estoppel may also be applied, assuming there has been a

Street station. Pl. Opp. at 69. But there is no assertion final determination on the merits, to an issue resolved in

that Kornagay or Felice ever mentioned Cruz's prior request arbitration.” Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d

for accommodation, her religious beliefs, or her disability. Cir. 2003).

Nor are there factual allegations that would support a

reasonable inference that Cruz's supervisors knew about her The MTA's decision to terminate Cruz was adjudicated before

accommodation request. Id. an independent arbitrator on October 8, 2023. Arb. Opinion

at 1. The specific incident discussed – an interaction with

*9 As reported by Cruz, these incidents generally involved defendant Deborah Felice on June 9, 2023, after which Cruz

either Cruz's attire or perceived invasions of her personal did not report to her workplace – is described in the present

space in her booth at the 8th Street Station. Id. The key Complaint as an act of retaliatory harassment. Id. at 1; Compl.

incident that led to Cruz's refusal to return to her worksite at 16. At the arbitration, counsel retained by the Transit

in June 2023 was instigated by a cleaning crew supervisor Workers' Union was available to represent Cruz, but she

who did not even know Cruz's name. Pl. Opp. at 71; Arb. elected to represent herself. Arb. Opinion at 2.

Opinion at 3–4. At most, Cruz alleges that Kornagay “made

references” to her “previous work location” in July 2022, At the hearing, Cruz made the very same claim that she alleges

but this vague assertion fails to demonstrate the required here: Felice's actions and the resulting disciplinary process

connection between the protected activity – a request for an were in retaliation for Cruz's complaints to the state regulatory

accommodation – and her disputes with her new supervisors. bodies. Arb. Opinion at 10; Pl. Opp. at 77–78 (plaintiff's

Compl. at 13. It is particularly unavailing given the SDHR's closing statement at the arbitration). The arbitrator rejected

unappealed determination that Kornagay's actions in August this contention, determining, “I do not find that there is any

and November 2022 – after her July 2022 reference to Cruz's basis to conclude that Felice's actions were retaliatory. I credit

prior work at the Wall Street station – were not retaliatory. Felice's testimony that she did not recall any prior interactions

Cruz provides no plausible basis to infer that Kornagay with Cruz and there is no evidence to demonstrate that she was

developed a retaliatory motive at some point after these events aware that Cruz had filed anything which would be protected

that the SDHR already considered and determined were not by statute from retaliatory conduct.” Arb. Opinion at 10.

retaliatory. Finally, Cruz does not claim that the other MTA

employee who allegedly harassed her, defendant Deborah Because Cruz litigated claims based on her present 2023

Felice, ever even mentioned Cruz's work at the Wall Street Termination Allegations in the arbitration (i.e., that the

station. June 9, 2023, incident and her subsequent termination were

based on the 2023 Termination Allegations in this action. G. The ADA and Title VII Do Not Provide For

These claims should therefore be dismissed under Rule 12(b) Individual Liability

(6). Plaintiff has sued seven MTA employees in their individual

capacities. However, unlike NYSHRL and NYCHRL, the

ADA and Title VII do not provide for individual liability.

F. The Court Should Decline to Exercise Supplement See Cayemittes v. City of N.Y. Dep't of Hous. Pres. & Dev.,

Jurisdiction Over Cruz's Remaining Claims 641 Fed. Appx. 60, 61-62 (2d Cir. 2016) (“Title VII does

Under State and Local Law Based on Post-Return not provide for individual liability.” (first citing Raspardo v.

Harassment Allegations That Were Not Presented in Carlone, 770 F.3d 97, 113 (2d Cir. 2014); and then citing

the SDHR Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (per

As discussed in Part C and Part D above, all of Cruz's federal curiam))); Gomez v. N.Y.C. Police Dep't, 191 F. Supp. 3d

claims should be dismissed. As discussed in Part E above, 293, 2016 WL 3212108, at *7 (S.D.N.Y. 2016) (“[T]here

all claims (federal, state and local) arising from the 2023 is no individual liability under the ADA.” (citing Lane v.

Termination Allegations should be dismissed. As discussed Maryhaven Ctr. of Hope, 944 F. Supp. 158, 162 (E.D.N.Y.

in Part B and Part C above, all claims (federal, state and 1996))). Even if the Court determines that Cruz's ADA and

local) based on allegations presented to the SDHR (i.e., Title VII are not otherwise barred, they should be dismissed

claims based on the COVID Accommodation Allegations with regard to the individual Defendants.

and a portion of the Post-Return Harassment Allegations)

should be dismissed. The only claims remaining are the

NYSHRL and NYCHRL claims that are based on those Post- H. There Is No Private Right of Action for the Alleged

Return Harassment Allegations that were not presented to the Criminal Offense

SDHR. However, a district court “may decline to exercise Cruz asserts a claim for “Aggravated harassment” under §

supplemental jurisdiction over a claim” once it “has dismissed 240.30. While not explicitly stated, the Court infers that

all claims over which it has original jurisdiction.” 28 U.S.C. Cruz means § 240.30 of the New York Penal Law, which

§ 1367(c). covers aggravated harassment in the second degree. N.Y.

Penal Law § 240.30. There is no private right of action

*10 “Courts in this District routinely decline to exercise for violation of these criminal statutes. See, e.g., Johnson v.

supplemental jurisdiction over a plaintiff's NYCHRL claims Allick, 2019 WL 569106, at *5 (E.D.N.Y. Feb. 12, 2019) (“As

after dismissing all federal claims.” Espinoza v. New York City a general matter ... crimes are prosecuted by the government,

Dep't of Transportation, 304 F. Supp. 3d 374, 391 (S.D.N.Y. not by private parties.”). Accordingly, this claim should be

2018); see also Harris v. NYU Langone Med. Ctr., No. 12- dismissed.

CV-0454(RA), 2014 WL 941821, at *1–2 (S.D.N.Y. Mar.

11, 2014) (declining to exercise jurisdiction over NYSHRL

I. Defendants' Arguments on the Merits

and NYCHRL claims); Algarin v. City of New York, No. 12-

Because all of Cruz's claims should be dismissed on other

CV-1264 (LTS), 2012 WL 4814988, at *4 (S.D.N.Y. Oct.

grounds, the Court need not reach Defendants' arguments on

10, 2012) (declining to exercise jurisdiction over New York

the merits of her claims. However, these arguments are briefly

State Executive Law § 296 and NYCHRL claims); Mabry v.

addressed below.

Neighborhood Def. Serv., 769 F. Supp. 2d 381, 402 (S.D.N.Y.

2011) (declining to exercise jurisdiction over NYSHRL and

Defendants argue that Cruz's religious discrimination claims

NYCHRL claims).

should be dismissed because her Complaint fails to provide

detail concerning her religious beliefs. Def. Mem. at 21.

Accordingly, the Court should decline to exercise

Defendants are correct in this assessment of the pleading;

supplemental jurisdiction over Cruz's remaining NYSHRL

however, Cruz does provide additional details about her

and NYCHRL, which are those arising from Post-Return

religious beliefs in her various administrative filings. See,

Harassment Allegation that were not put forward in the SDHR

e.g., Pl. Opp. at 15. Accordingly, the proper remedy for Cruz's

proceeding.

insufficient pleading would be granting her leave to amend

her Complaint, not dismissal.

disability claims, contending that she has not sufficiently work that she alleged in the SDHR should be dismissed

described her disability or that she requested an with prejudice based upon the doctrine of collateral

accommodation from the MTA. Def. Mem. at 21–23. While estoppel; she presented these same factual allegations to

her Complaint fails to make these necessary allegations, once the SDHR, the SDHR ruled against her, and she did not

again there is sufficient information about her disability and appeal.

her communications with the MTA concerning her disability

such that the proper remedy would be an amended pleading. • Cruz's ADA and Title VII claims arising from the alleged

harassment that took place once she returned to work

*11 Finally, Defendants argue that Cruz's claims should be that she did not allege in the SDHR, and her subsequent

dismissed because Second Circuit case law has unequivocally termination after she stopped going to her worksite,

provided that “granting a reasonable accommodation to should be dismissed without prejudice because Cruz has

an employee seeking to be exempt from mask, testing not exhausted her administrative remedies prior to filing

or vaccination requirements would have posed an undue in federal court.

hardship to the employer.” Def. Mem. at 18–20. Defendants

• Cruz's ADA, Title VII, NYSHRL, and NYCHRL claims

cite D'Cunha v. Northwell Health Sys., 2023 WL 7986441,

arising from the harassment allegedly committed by

2023 U.S. App. LEXIS 30612 (2d Cir. Nov. 17, 2023),

defendant Felice on June 9, 2023 and the termination of

where the Second Circuit upheld the 12(b)(6) dismissal of

her employment are barred by the doctrine of collateral

a religious discrimination claim based on the denial of the

estoppel and should be dismissed with prejudice because

request to be exempt from a vaccine mandate as support

these same factual allegations were decided in a binding

for their position that Cruz's religious discrimination claim

arbitration.

fails to meet the 12(b)(6) bar. Def. Mem. at 18–19; see

also Cagle v Weill Cornell Medicine, 680 F. Supp. 3d 428 • The Court should decline to exercise supplemental

(S.D.N.Y. 2023) (granting unopposed 12(b)(6) motion in case jurisdiction over the state and local law claims that

where healthcare worker who was denied accommodation should not otherwise be dismissed for the reasons

from vaccine mandate brought Title VII and ADA claims). described above, i.e., Cruz's NYSHRL and NYCHRL

However, D'Cunha involved only a vaccine mandate, not claims arising from the alleged harassment she

a mask policy. D'Cunha, 2023 WL 7986441, 2023 U.S. experienced after returning to work that she did not

App. LEXIS 30612 at *5–6. As Defendants do not cite allege in the SDHR.

any case where a 12(b)(6) motion was granted based on

a denial of accommodation from a masking requirement, • Cruz's ADA and Title VII claims against the individual

Cruz's discrimination claims should not be dismissed on such Defendants should be dismissed with prejudice because

grounds as a matter of law. there is no individual liability under those statutes.

• Cruz's claim for aggravated harassment under New York

V. CONCLUSION Penal Law § 240.30 should be dismissed with prejudice

Cruz brings a variety claims. Ultimately, each of them should as there is no private right of action under this criminal

be dismissed for one or more reasons. In summary: statute.

• Cruz's New York State Human Rights Law claims The Clerk of Court is respectfully directed to mail a copy of

arising from the denial of her request for a reasonable this Report and Recommendation to the plaintiff.

accommodation and arising from the alleged harassment

that took place once she returned to work that she alleged

in the SDHR should be dismissed with prejudice because

Cruz elected to bring these claims before the SDHR, PROCEDURE FOR FILING OBJECTIONS

which deprives this Court of subject matter jurisdiction. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the

Federal Rules of Civil Procedure, the parties have fourteen

• Cruz's ADA, Title VII, and New York City Human

(14) days (including weekends and holidays) from service

Rights Law claims arising from the denial of her request

of this Report and Recommendation to file any objections.

for a reasonable accommodation and arising from the

responses to objections, shall be filed with the Clerk of APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R.

Court, with courtesy copies delivered to the chambers of Civ. P. 72. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,

the Honorable Analisa Torres, United States Courthouse, 500 88 L.Ed.2d 435 (1985); Wagner & Wagner, LLP v. Atkinson,

Pearl St., New York, New York 10007-1312. Any requests for Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596

an extension of time for filing objections must be directed to F.3d 84, 92 (2d Cir. 2010).

Judge Torres.

All Citations

Not Reported in Fed. Supp., 2025 WL 209598

*12 FAILURE TO FILE OBJECTIONS WITHIN

FOURTEEN (14) DAYS WILL RESULT IN A

Footnotes

1 The Court may take judicial notice of matters of public record, such as New York State executive orders.

See, e.g., See Elite Union Installations, LLC v. Nat'l Fire Ins. Co., 559 F. Supp. 3d 211, 219 (S.D.N.Y. 2021);

Michael Cetta, Inc. v. Admiral Indem. Co., 506 F. Supp. 3d 168, 173 (S.D.N.Y. 2020).

2 Although Cruz did not attach the complete record of her SDHR proceeding to her complaint, the Court can

take judicial notice of the records of a state administrative proceeding without converting the motion to dismiss

into a motion for summary judgment. See, e.g., Evans v. New York Botanical Garden, No. 02-CV-591 (RWS),

2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002).

3 Although the Complaint states that Cruz returned to work on July 11, 2023, adjacent segments of the

Complaint and other documents indicate this is a typographical error.

4 Cruz did not include a copy of the arbitration opinion in her Complaint. However, she referenced the arbitration

in the Complaint and included a copy of her closing statement at the arbitration in her opposition to the

present motion. Compl. at 16; Pl. Opp. at 77–78, Dkt. No. 43. Defendants filed the arbitration opinion with

their opposition papers. Dkt. No. 34-5. Because the arbitration is referenced by plaintiff in both her complaint

and her opposition, its authenticity is not in dispute, and it is a publicly available document, the Court will take

judicial notice of the arbitration opinion without converting the motion to dismiss into a motion for summary

judgment. See Brown v. New York City Transit Auth., No. 22-CV-02949 (ALC), 2024 WL 1347283, at *5–

6 (S.D.N.Y. Mar. 29, 2024).

5 To the extent the Complaint in this action includes Post-Return Harassment Allegations that were not made in

the SDHR Complaint (e.g., allegations concerning events in 2023), federal claims based on those allegations

should be dismissed for failure to exhaust administrative remedies, as explained in Section IV.D below.

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

2026 WL 1831673 cases, Fata continues to allege the existence of a conspiracy

Only the Westlaw citation is currently available. that began in 2017 “to coverup a sexual abuse on [his]

United States District Court, E.D. Pennsylvania. two kids and to frame [him]” (hereinafter referred to as

the “2017 conspiracy”). (Id. at 18.) He contends that he's

Abrahim FATA, Plaintiff, “been severely oppressed by Pennsylvania, and New Jersey

v. societies/communities, and governments, since 2017 ... to

Edwin ARCELLY, et al., Defendants. the extreme of [his] death, by either manipulating a fatal

‘accident’ or ... to push [him] to suicide.” (Id.) Fata claims

CIVIL ACTION NO. 26-2185 that the conspiracy “started with a Christian religious-based

| organization, that has invaded the communities” where he

Filed June 25, 2026 and his children reside, and he further alleges that this

organization has recruited many relatives and government

Attorneys and Law Firms officials to form an enterprise to “oppress [him] religiously,

Abrahim Fata, Bethlehem, PA, Pro Se.

psychologically, [and] systematically.”2 (Id.)

*2 In his current Complaint, Fata names as Defendants

several staff members of Lehigh County Jail (“LCJ”)

MEMORANDUM

including Edwin Arcelly (identified in the Complaint as a

HENRY, J. case worker); Bob Krasley (identified as a case worker);

Tracy Kester (identified as a substitute case worker); Doug

*1 Plaintiff Abrahim Fata commenced this pro se civil Matte and Jim Kremers (identified as “treatment team”

action against numerous Defendants, asserting that this case members); and Kyle A. Russell (identified as the Warden).

primarily arises under the Racketeer Influenced and Corrupt (Id. at 2.) He also names as Defendants Lehigh County

Organizations Act (“RICO”), 18 U.S.C. § 1962(c); the Civil “legal/administrative officials” Marsha Evans (identified as

Rights Act of 1871, 42 U.S.C. § 1985(3); and the Trafficking “probation/parole”); District Attorney Jay Jenkins; “Jessica”

Victims Protection Reauthorization Act (“TVPRA”), 18 from “SPORE”3 and Allentown Police “Detectives” John

U.S.C. § 1595. (See ECF No. 2 (“Compl.”) at 1.) Fata also Lenord, Elizabeth Flores, and “Manning.” (Id. at 2-3.) Fata

filed a motion for leave to proceed in forma pauperis. For the also names as Defendants four staff members from the

following reasons, the Court will grant Fata leave to proceed Allentown Rescue Mission (“ARM”), identifying them by

in forma pauperis and dismiss his Complaint. first name only—Jose (“Intake Manager”), Heather, Sesa, and

Paul. (Id. at 3.) Finally, he names several “private/institutional

staff” members as Defendants including Jess (identified as

I. FACTUAL ALLEGATIONS1

the Director for the Allentown YMCA); Tiffany (identified

Fata's assertions initially relate to the formulation of home as the Supervisor for Bethlehem YMCA); Hanna (identified

plans while he was still in custody, and he alleges that as the supervisor for Bethlehem Shelter); Mr. Valentine

the actions of several defendants “obstruct[ed] the legal (Victory House); Mr. Meyers (Stephen's House); and James

‘home plan’ process,” causing him to remain improperly in Goss (identified “as a ‘lead’ and member of the enterprise”

custody rather than released on parole prior to the end of who “appear[ed] at the Allentown Rescue Mission chapel to

his maximum custodial sentence. (See generally Compl. at manipulate [Fata]”). (Id.)

2-6.) Following his release, Fata alleges that several other

defendants denied him “legal protection” and either impeded Public dockets reflect that Fata was incarcerated at LCJ

his entry into residential programs or evicted him from in connection with probation revocation proceedings. See

programs for arbitrary reasons. (Id.) Fata claims that all his Commonwealth v. Fata, No. CP-39-CR-0004857-2017 (C.P.

difficulties in obtaining home plans and securing post release Lehigh). On January 16, 2024, Fata's probation was revoked,

housing are tied to a conspiracy that is “orchestrated to keep and he was sentenced to nine to twenty-three months

[him] in a crisis,” and “block the federal courts from hearing imprisonment. Id. Fata claims that he was eligible for early

[his] case.” (Id. at 17.) release on July 25, 2024. (Compl. at 6.) In May 2024, Arcelly

and a hearing was scheduled for July 11, 2024 before Lehigh entry to ARM. (Id. at 10-11.) Fata alleges that ARM staff

County Court of Common Pleas Judge Thomas M. Caffrey. members didn't like him, and he was “falsely accused” of

(Id. at 6-7.) At the hearing, Fata asked Judge Caffrey if he harassment as a “pretext for program exclusion.” (Id. at 3.)

could be released to ARM, but District Attorney Jenkins He claims that other staff members verbally insulted him, and

allegedly responded that it “wasn't a good idea.” (Id. at 7.) “started singling [him] out and oppressing [him] for eating

Fata alleges that Evans and Jenkins “blocked his release path” late” or “for getting more than one cup of water.” (Id. at

when Evans asserted that shelters were not an option for home 3, 12.) While residing at ARM, Fata filed several incident

plans4 and when Jenkins made a statement on the record. reports with the APD. (Id. at 11.) He avers that he “was

(Id. at 2, 19.) Fata's request for parole was denied. (Id. at 7.) oppressed by the officers” who “question[ed] [his] mental

Fata further claims that Jessica from SPORE falsely claimed health.” (Id. at 11.) Fata alleges that he filed a report because

that he had a “mental issue” to justify his exclusion from “information was deleted from [his] phone” and later filed

orientation programs. (Id. at 2, 19.) another report because an ARM volunteer, James Goss, tried

to befriend Fata even though that individual “and his daughter

Fata claims that after he “return[ed] from court,” Arcelly started a conspiracy against [Fata] with a church back in

ignored him for a week and refused to provide him “with 2017.” (Id.) Fata avers that Goss acted as a “direct liaison

the list of other [home] options.” (Id. at 2, 7-8.) He contends between the 2017 conspiracy and current events.” (Id. at 19.)

that Arcelly sabotaged his release by “withholding home Fata claims that the incident reports he made regarding Goss

plan lists” and by obstructing his “ability to communicate and others were disregarded by Detectives Lenord, Flores,

with his bank” to arrange for rental payments. (Id. at 2, 19.) and Manning, averring that they “ignored physical evidence

Fata claims that Kester, who substituted for Arcelly while of organized crime to protect the enterprise.”5 (Id. at 11,

he was away on vacation, “oppressed [him]” by providing 19.) On November 17, 2024, Fata was “kicked out” of ARM,

false information and by failing to give him a list of home allegedly “for no legit reason” and he was banned for a year.

plan options. (Id. at 2, 7.) Fata avers that Matte and Kremers, (Id. at 12-13.)

who supervised the case workers, ignored him and “provided

misinformation to subsequent staff ... to perpetuate [his] Fata then went to the Allentown YMCA and met Jess,

‘crisis.’ ” (Id.) Fata alleges that between July and September the YMCA Director. (Id. at 12.) Upon arrival, Fata told

2024, “[he] wrote grievances” regarding the failed attempts Jess that he “was a victim of organized crime and there

to contact his bank and retrieve home plans. (Id. at 8.) All his was a conspiracy against [him].” (Id. at 12-13.) He got

grievances were “denied or rejected wrongfully” by Warden along initially with everyone at the YMCA until a “staff

Russell, and Russell dismissed “all grievances regarding the member conspired with Jess to oppress [Fata], and Jess started

enterprise's interference.” (Id. at 2, 8, 19.) In December insulting [him].” (Id. at 3, 13, 19.) Fata alleges that Jess

2024, Krasley began “to oppress [Fata] by sending indirect continually insulted him and prevented him from showering,

messages” about home plan options. (Id. at 9-10.) Fata claims until he “was kicked out on November 30th.” (Id.) On

that Krasley blocked his release by, inter alia, “claiming December 1, 2025, Fata went to the APD and made another

ignorance of available agencies while providing them to other incident report because information was missing from his

inmates,” seizing his resources list, and utilizing punitive phone. (Id. at 13.)

lockdown. (Id. at 2, 19.) Fata claims that by March 2025,

he stopped researching home plan options because he was Fata next went to the Bethlehem Emergency Shelter and

about to “max out.” (Id. at 10.) Fata was released from LCJ advised the staff, including the shelter's supervisor, Hanna,

on September 25, 2025, the end date of his custodial sentence. about the “conspiracy” against him. (Id.) At some point

(Id.) during his stay, Hanna told Fata that there were multiple

complaints about him from other residents. (Id. at 14-15.) Fata

*3 Following his release from jail, Fata walked to ARM claims that a resident named Dave “never stopped provoking”

but was denied admittance by Jose because of a “fraudulent him. (Id. at 15.) After his conversation with Hanna, he

background check.” (Id. at 3, 10, 19.) Jose also questioned allegedly found a bible in the area where he usually did

Fata's “mental health to impede entry.” (Id. at 3.) Fata went his “legal work,” and he claims that the placement of the

to the Allentown Police Department (“APD”) to clear up bible was “orchestrated specifically for [him]” in connection

his background history, and after explaining to Jose that with the 2017 conspiracy formed against him. (Id. at 15,

Bethlehem Emergency Shelter and was suspended from the U.S.C. § 1512). (Id.)

shelter on February 11, 2026. (Id. at 15.) He asked Hanna

to provide the names of staff members who “singled [him] Fata's fourth claim asserts a civil rights conspiracy in

out” because he “needed it for [his] case.” (Id. at 3, 15-16.) violation of 42 U.S.C. § 1985(3). (Id.) He contends that

Hanna did not respond to him until February 23, 2026, and “[t]he conspiracy was motivated by class-based (religious)

because of the “abnormally prolonged response” and refusal animus,” alleging that the “acceptance of an inmate with

“to identify provocateurs,” Fata “knew” that “Hanna was part identical religious views” into a home plan that Fata was

of the conspiracy against [him].” (Id. at 3, 16.) On March denied acceptance into is evidence of a conspiracy. (Id.) Fata

16, 2026, Fata told Hanna that he was “being targeted” and further alleges that an email from “Jessica (S.P.O.R.E.) to

that the rules were being used “as a weapon” against him. [ARM] establishes the ‘nexus’ for state-private liability.” (Id.)

(Id. at 3, 17, 19.) Fata also told Hanna that people at the The fifth claim asserts cruel and unusual punishment in

shelter were hacking his phone, and he planned to set up violation of the Eighth Amendment, allegedly because Fata

“boobie traps” to find out who was in on the conspiracy. was moved to “ ‘the hole’ (3C) on September 27, 2024,

(Id. at 17.) Hanna told him that he had to leave the shelter without penological justification.” (Id.) He also alleges

that night because he would not follow the rules. (Id.) When deliberate indifference because the Defendants “knowingly

Hanna suggested the Allentown YMCA, he responded that he exacerbat[ed] sleep deprivation—which required a Seroquel

would not go there because “they're in on this conspiracy.” prescription—through institutional sabotage.” (Id.) Finally,

(Id.) Fata avers that all Defendants are aware of the 2017 in the sixth claim, Fata alleges Fourteenth Amendment due

conspiracy, and they “agreed to a ‘meeting of the minds’ process and equal protection violations. (Id. at 4-5.) He

to utilize their official and private capacities to block [his] avers that Defendants arbitrarily denied and obstructed “the

release and housing stability.” (Id. at 20.) legal ‘home plan’ process” and failed to “provide meaningful

administrative review.” (Id.) He also avers that Arcelly and

*4 Based on the foregoing allegations, Fata asserts six Evans treated him “differently than other similarly situated

claims for relief. (Id. at 3-5.) The first three claims inmates by claiming facilities were not approved home plans

allege violations of federal criminal statutes. His first while releasing others to those same facilities.” (Id. at 5.)

claim, “Federal Trafficking and Hostage-Taking,” asserts that

Defendants “utilized the legal ‘home plan’ requirement” to Fata claims that because of a “pattern of racketeering,” he

“perpetuate [his] detention through coordinated sabotage” in suffered financial losses including “lost wages from Auto

violation of federal criminal statutes that prohibit hostage Zone, the depletion of PNC bank funds, and increased

taking (18 U.S.C. § 1203), forced labor (18 U.S.C. § 1589), transportation costs” because he was “forcibly moved

and human trafficking (18 U.S.C. § 1595). (Id. at 3-4.) He also further from his place of employment.” (Id. at 5, 19-20.)

contends that Defendants Jose, Jess, and Hanna “maintained He seeks monetary, punitive, and treble damages in an

control via a ‘crisis loop’ of coordinated evictions” to prevent unspecified amount, and seeks “a permanent injunction

him from advancing his legal claims and to keep law against the Defendants to cease all psychological and

enforcement from investigating the 2017 conspiracy. (Id. at 4, systemic oppression.” (Id. at 5.) He also requests that the

17.) Fata's second claim, “Federal Stalking and Psychological Court “refer the evidence of criminal violations identified”

Coercion,” alleges that Defendants used “gaslighting and the for criminal prosecution by the United States and/or

creation of ‘boobie traps’ ” to place him under substantial Pennsylvania Attorney General. (Id.)

emotional distress in violation of the federal criminal statute

that prohibits stalking (18 U.S.C. § 2261A). (Id. at 4.)

II. STANDARD OF REVIEW

He claims that the orchestration of insults by Defendant

The Court will grant Fata leave to proceed in forma pauperis

Jess and certain residents “were tactical weapons” used to

because it appears that he is incapable of paying the fees to

impede his “legal standing.” (Id.) His third claim, “Tampering

commence this civil action. Accordingly, 28 U.S.C. § 1915(e)

with Victims and Witnesses,” alleges that even though the

(2)(B) requires the Court to screen and dismiss the Complaint

Defendants were aware of Fata's statements regarding the

if it is frivolous, malicious, fails to state a claim, or seeks

2017 conspiracy, they “engaged in misleading conduct—

relief from an immune defendant. Section 1915(e)(2)(B)(i)

including ‘filibustering’ and misrepresentation of criminal

requires the Court to dismiss Complaint if it is frivolous, and

history—to hinder reporting federal offenses” in violation of

is frivolous if it “lacks an arguable basis either in law or in alleging the conclusion to an ultimate legal issue.”). “[P]ro se

fact.” Brown v. City of Philadelphia, 750 F. App'x 171, 173 litigants still must allege sufficient facts in their complaints to

(3d Cir. 2018) (quoting Neitzke v. Williams, 490 U.S. 319, 325 support a claim.” Vogt, 8 F.4th at 185 (quoting Mala, 704 F.3d

(1989)). The use of the term “frivolous” in § 1915 “embraces at 245). An unrepresented litigant “cannot flout procedural

not only the inarguable legal conclusion, but also the fanciful rules — they must abide by the same rules that apply to all

factual allegation.” Neitzke, 490 U.S. at 325. Section 1915 other litigants.” Id. (quoting Mala, 704 F.3d at 245); see also

accords judges “the unusual power to pierce the veil of Doe v. Allegheny Cnty. Hous. Auth., No. 23-1105, 2024 WL

the complaint's factual allegations and dismiss those claims 379959, at *3 (3d Cir. Feb. 1, 2024) (“While a court must

whose factual contentions are clearly baseless[,]” including liberally construe the allegations and ‘apply the applicable

claims that describe “fantastic or delusional scenarios[.]” Id. law, irrespective of whether the pro se litigant mentioned it

at 327-28; see also Mitchell v. Horn, 318 F.3d 523, 530 (3d b[y] name,’ Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir.

Cir. 2003). “[A] finding of factual frivolousness is appropriate 2002), this does not require the court to act as an advocate

when the facts alleged rise to the level of the irrational or to identify any possible claim that the facts alleged could

the wholly incredible, whether or not there are judicially potentially support.”).

noticeable facts available to contradict them.” Smith v. N.

Cambria Police, No. 25-1273, 2025 WL 1324070, at *1 (3d

Cir. May 7, 2025) (per curiam) (quoting Denton v. Hernandez, III. DISCUSSION

504 U.S. 25, 33 (1992)). A claim is legally baseless if it is

A. Frivolous Claims

“based on an indisputably meritless legal theory.” Deutsch v.

Fata contends that there is a vast conspiracy to frame him

United States, 67 F.3d 1080, 1085 (3d Cir. 1995) (holding

and cover up sexual abuse. (Compl. at 18.) He asserts that

frivolous a suit alleging that prison officials took an inmate's

the conspiracy, which spans across two states, was started

pen and refused to give it back).

in 2017 by a “Christian religious-based organization” that

recruited family members and government officials to oppress

*5 Whether the Complaint fails to state a claim under §

him “to the extreme of [his] death, by either manipulating a

1915(e)(2)(B)(ii) is governed by the same standard applicable

fatal ‘accident’ or ‘situation’ ” or push him to commit suicide.

to motions to dismiss under Federal Rule of Civil Procedure

(Id.)

12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240

(3d Cir. 1999), which requires the Court to determine whether

Fata asserts a civil RICO claim based on this conspiracy,

the Complaint contains “sufficient factual matter, accepted

alleging that an “association-in-fact enterprise,” consisting

as true, to ‘state a claim to relief that is plausible on its

of all Defendants together with a “Christian religious

face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

organization,” has been operating “with a shared goal (cover

Bell Atl. Corp. v. Twombly, 560 U.S. 544, 556 (2007)).

up of 2017 case) where state actors act as ‘gatekeepers’ and

At the screening stage, the Court will accept the facts

private actors act as ‘enforcers.’ ” (Id. at 20.) He avers that

alleged in the pro se Complaint as true, draw all reasonable

the Defendants “agreed to a ‘meeting of the minds’ to utilize

inferences in the plaintiff's favor, and ask only whether the

their official and private capacities to block [his] release and

Complaint, liberally construed, contains facts sufficient to

housing stability.” (Id.) Fata contends that the enterprise has

state a plausible claim. Shorter v. United States, 12 F.4th 366,

committed “racketeering acts” designed to sabotage “home

374 (3d Cir. 2021), abrogation on other grounds recognized

plans and housing” to keep him “in a perpetual state of ‘crisis’

by Fisher v. Hollingsworth, 115 F.4th 197 (3d Cir. 2024).

to impede his legal access to federal courts.”7 (Id. at 17, 20.)

As Fata is proceeding pro se, the Court construes his

allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d *6 As the Court has advised Fata on numerous prior

Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 occasions, his allegations that a multistate conspiracy has

F.3d 239, 244-45 (3d Cir. 2013)). The Court will “apply the been formed to push him to suicide or otherwise cause

relevant legal principle even when the complaint has failed his death are wholly incredible and lack a basis in fact.

to name it.” Id. (quoting Mala, 704 F.3d at 245). However, Accordingly, the Court will dismiss any claims based on these

conclusory allegations do not suffice. Iqbal, 556 U.S. at 678; allegations as factually baseless, without leave to amend.

see also Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 See, e.g., Caterbone v. Nat'l Sec. Agency, 698 F. App'x

were based on plaintiff's assertion that he was a “victim Maio v. Aetna, Inc., 221 F.3d 472, 482–83 (3d Cir. 2000).

of U.S. sponsored mind control and cointelpro harassment

program”); Mina v. Chester County, 679 F. App'x 192, Fata does not allege any conduct that could be considered

195 (3d Cir. 2017) (per curiam) (affirming dismissal of racketeering activity for purposes of setting forth a legal basis

plaintiff's claims that 62 defendants had a vast conspiracy for a RICO claim. See Tapia-Ortiz v. Winter, 185 F.3d 8,

against him spanning twenty years); Price v. Fed. Bureau of 11 (2d Cir. 1999) (“The claim that the defendants [including

Investigation, No. 20-3015, 2020 WL 4368063, at *3 (E.D. numerous judges, staff attorneys, and an assistant united

Pa. July 30, 2020), aff'd, 845 F. App'x 106 (3d Cir. 2021) states attorney] engaged in a RICO conspiracy by failing to

(finding plaintiff's allegations to be factually frivolous where properly address issues on appeal and ‘bribing’ witnesses to

plaintiff asserted that “numerous law enforcement agencies, testify pursuant to plea agreements lacks any arguable basis

attorneys, prison officials, and medical professionals have in law and was properly dismissed as frivolous.”); Mierzwa

used neurological and psychological technology to control v. Safe & Secure Self Storage, LLC, 493 F. App'x 273, 276

the ‘four basic groups of his brain and mental functions’ (3d Cir. 2012) (“[C]onclusory allegations that defendants

and “that the use of this ‘technology’ and ‘mind control’ has conspired for the purpose of defrauding [Mierzwa] are simply

caused him numerous impairments and drove him to criminal inadequate to plead a valid RICO claim.”) Fata's conclusory

and erratic behavior”); Jorge v. Torres, No. 18-14674, 2019 allegations that more than twenty individuals employed by

WL 2385942, at *3 (D.N.J. June 6, 2019) (“Plaintiff's factual approximately ten different county, city, or private entities

allegations that the Police are monitoring his every move and conspired with an unidentified “Christian religious-based

that the Police do so by telephone recruitment ‘of informants, organization” for the purpose of sabotaging his “home plans

spies, and willing constituates [sic]’ is exactly the type of and housing” are inadequate to plead a valid RICO claim

‘fantastic or delusional scenario[ ]’ warranting dismissal and he fails to allege any injury to his business or property.

under 28 U.S.C. § 1915(e)(2)(B)(i).” (alterations in original)). Accordingly, his civil RICO claims will be dismissed as

legally baseless, without leave to amend. There are additional

Moreover, Fata's RICO claims are legally baseless. RICO reasons, however, as to why Fata's claims cannot proceed.

“makes it unlawful ‘for any person employed by or

associated with any enterprise engaged in, or the activities

of which affect, interstate or foreign commerce, to conduct B. Civil Claims Based on Criminal Statutes

or participate, directly or indirectly, in the conduct of such *7 Fata cites several federal criminal statutes in his

enterprise's affairs through a pattern of racketeering activity.’ Complaint, namely 18 U.S.C. § 1203 (hostage taking), § 1512

” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 362 (witness tampering), § 1589 (forced labor), and § 2261A

(3d Cir. 2010) (quoting 18 U.S.C. § 1962(c)). To state (stalking). (Compl. at 1-2). To the extent he seeks to assert

a civil RICO claim, a plaintiff must plausibly allege the civil liability based on those statutes, his claims are not

following elements: “(1) conduct (2) of an enterprise (3) plausible because criminal statutes generally do not give rise

through a pattern (4) of racketeering activity.” Id. (internal to a basis for civil liability. See Brown v. City of Philadelphia

quotations omitted). “ ‘Racketeering activity’ is defined in the Office of Human Res., 735 F. App'x 55, 56 (3d Cir. 2018) (per

RICO statute to comprise the state law offenses of murder, curiam) (“Brown alleges that the defendants violated various

kidnaping, gambling, arson, robbery, bribery, extortion, criminal statutes, but most do not provide a private cause

dealing in obscene matter, and dealing in a controlled of action.”). Indeed, the United States Supreme Court has

substance or listed chemical, as well as several federal stated that, unless specifically provided for, federal criminal

offenses such as mail and wire fraud.” Talley v. Halpern ex statutes rarely create private rights of action. Nashville Milk

rel. Est. of Winderman, No. 05-4184, 2005 WL 2002611, at Co. v. Carnation Co., 355 U.S. 373, 377 (1958) (stating that

*4 (E.D. Pa. Aug. 16, 2005) (citing 18 U.S.C. § 1961(1)). where a statute “contains only penal sanctions for violation

“According to the RICO statute, a ‘pattern of racketeering of it provisions; in the absence of a clear expression of

activity’ requires at least two acts of racketeering activity congressional intent to the contrary, these sanctions should

within a ten-year period.” In re Ins. Brokerage Antitrust Litig., under familiar principles be considered exclusive, rather than

618 F.3d at 363 (quoting 18 U.S.C. § 1961(5)). Additionally, a supplemented by civil sanctions of a distinct statute”); Cent.

plaintiff must have sustained “injury to business or property” Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,

511 U.S. 164, 190 (1994) (“We have been quite reluctant

violated and some person harmed does not automatically give (E.D. Pa. June 13, 2025) (citing Palencia v. N. Point Veterans

rise to a private cause of action for the injured person. Touche Program-Turning Point, No. 20-1691, 2020 WL 7059557, at

Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Cannon *1 (W.D. Pa. Dec. 2, 2020) (“18 U.S.C. § 1512 is a criminal

v. University of Chicago, 441 U.S. 677, 689 (1979). statute that does not create a private cause of action.”)).

Claim one of Fata's Complaint asserts federal trafficking and Fata also cites 18 Pa. Cons. Stat. §§ 4911 (tampering with

hostage taking in violation of 18 U.S.C. §§ 1203, 1595, and public records or information) and 5301 (official oppression)

1589. (Compl. at 3-4.) However, the hostage taking statute, as a basis for claims. (Compl. at 2.) Courts, including the

§ 1203, does not give rise to civil liability. Rodriguez v. City United States Court of Appeals for the Third Circuit, routinely

of Salem, No. 23-01863, 2024 WL 4546365, at *4 (D. Or. dismiss claims seeking to impose civil liability under various

Oct. 2, 2024), report and recommendation adopted, 2024 WL sections of the Pennsylvania Crimes Code, finding that the

4544317 (D. Or. Oct. 22, 2024) (concluding that 18 U.S.C. “Code gives no authority for a private cause of action and

§ 1203 “is part of federal criminal code, and there is no none has been implied.” Youst v. Roth, No. 23-0848, 2023 WL

indication of a congressional intent to create a private right 3821813, at *4 (E.D. Pa. June 5, 2023) (quoting Martrano

and private remedy”); Kelly v. City of New Philadelphia, No. v. Quizno's Franchise Co., No. 08-0932, 2009 WL 1704469,

11-474, 2011 WL 3705151, at *2 n.3 (N.D. Ohio Aug. 22, at *12 (W.D. Pa. June 15, 2009)); see also Williams v.

2011) (stating that 18 U.S.C. § 1203 does not provide for Wetzel, 827 F. App'x 158, 162 (3d Cir. 2020) (per curiam)

“a private right of action”). Fata's claims pursuant to the (recognizing that plaintiff's civil claims brought pursuant to

TVPRA, which encompasses 18 U.S.C. §§ 1589 and 1595, the Pennsylvania Crimes Code were properly rejected by the

are also not plausible. Specifically, § 1589 does not provide district court because there was no private right of action

a basis for a private cause of action. See Brown v. U.S. Dist. available under the Code); Abouloh v. Lehigh Cnty. Prison,

Ct. for the E. Dist. of Pa., No. 18-747 (E.D. Pa.) (Apr. 19, No. 25-3377, 2025 WL 2654904, at *8 (E.D. Pa. Sept. 15,

2018 Order at 6 (dismissing claims under 18 U.S.C. § 1589 as 2025). Accordingly, Fata's claims based on these criminal

“meritless and frivolous”)), aff'd, 740 F. App'x 239, 240 (3d statutes will be dismissed with prejudice.

Cir. 2018) (per curiam). Although 18 U.S.C. § 1595 provides

for a civil remedy for violations of the TVPRA, Fata fails Similarly, any claims alleging criminal liability or a violation

to allege any facts suggesting that Defendants either forced of a criminal statute as a basis for civil liability are dismissed

him into labor, trafficked him for forced labor, or benefitted with prejudice. (See Compl. at 5 wherein Fata seeks relief

financially from peonage or forced labor.8 See Brown v. U.S. in the form of “criminal investigation and prosecution.”)

Dist. Ct. for E. Dist. of Pa., No. 18-1108, 2018 WL 11463543, “A private citizen lacks a judicially cognizable interest in

at *3 (E.D. Pa. Apr. 19, 2018), aff'd sub nom., Brown v. City the prosecution or nonprosecution of another.” See Linda

of Phila. Off. of Hum. Res., 735 F. App'x 55 (3d Cir. 2018). R.S. v. Richard D., 410 U.S. 614, 619 (1973) (finding that

a citizen lacks standing to contest prosecutorial policies

In Fata's second claim, he alleges federal stalking and “when he himself is neither prosecuted nor threatened with

psychological coercion in violation of 18 U.S.C. § 2261A, prosecution.”) (citations omitted). Fata cannot compel a

but, again, there is no private right of action under that criminal investigation by filing a complaint with this Court

statute. See Weisman v. Baur, 2021 WL 3403519, at *2 (E.D. because the United States District Courts have no authority to

Pa. Aug. 4, 2021) (dismissing civil claim brought under 18 order any law enforcement agencies or prosecutors to initiate

U.S.C. § 2261A); Humphrey v. Pa. Ct. of Common Pleas of investigations or prosecutions. See Wagner v. United States

Phila., 2021 WL 268498, at *2 n.3 (E.D. Pa. Jan. 27, 2021) Gov't, No. 23-1626, 2023 WL 3948820, at *1 (D.D.C. June

(“[N]umerous federal courts have held that no private right 9, 2023) (citing Otero v. U.S. Attorney General, 832 F.2d 141,

of action exists under [the Violence Against Women Act, 18 141-42 (11th Cir. 1987); Jafree v. Barber, 689 F.2d 640, 643

U.S.C. §§ 2261-2262].”). (7th Cir. 1982)). “[A]n agency's decision not to prosecute

or enforce, whether through civil or criminal process, is

*8 Finally, in claim three, Fata asserts tampering with a decision generally committed to an agency's absolute

victims and witnesses in violation of 18 U.S.C. § 1512. discretion.” Wagner, 2023 WL 3948820, at *1 (quoting

(Compl. at 4.) However, the federal witness tampering statute, Heckler v. Chaney, 470 U.S. 821, 831 (1985)); see also Smith

§ 1512, does not provide a private cause of action. Shaw v. v. Friel, No. 19-943, 2019 WL 3025239, at *4 (M.D. Pa.

WL 3003380 (M.D. Pa. July 10, 2019) (collecting cases and and actions taken in furtherance of the conspiracy, will be

stating “courts have long held that a civil rights plaintiff deemed sufficient.”). “[T]o properly plead an unconstitutional

may not seek relief in civil litigation in the form of an order conspiracy, a plaintiff must assert facts from which a

directing the criminal prosecution of some third parties”). conspiratorial agreement can be inferred.” Great W. Mining

& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d

Cir. 2010). “[A] bare assertion of conspiracy will not suffice.”

C. Civil Rights Conspiracy Claims Twombly, 550 U.S. at 556. Fata's claims fail for several

*9 Fata's fourth claim alleges a civil rights conspiracy in reasons. First, there is no allegation that a conspiracy was

violation of 42 U.S.C. § 1985(3). (Compl. at 1, 4.) This motivated by race or a class-based discriminatory animus as

section creates a cause of action against any two persons required by § 1985(3). Fata does not identify his race, nor does

who “conspire ... for the purpose of depriving, either directly he make any allegation that race was the motivation behind

or indirectly, any person or class of persons of the equal the Defendants' alleged actions. Although Fata conclusively

protection of the laws, or of equal privileges and immunities asserts that the “conspiracy was motivated by class-based

under the laws....” 42 U.S.C. § 1985(3). To state a plausible (religious) animus” (Compl. at 4), the Complaint does not

claim under § 1985(3) a plaintiff must allege the following allege Fata's membership in any religion, nor does it suggest

elements: (1) a conspiracy; (2) motivated by a racial or class that any of the Defendants named harbored discriminatory

based discriminatory animus designed to deprive, directly animus against him on the basis of his religion.9 Also, Fata

or indirectly, any person or class of persons of the equal

asserts the existence of a conspiracy only in conclusory terms

protection of the laws; (3) an act in furtherance of the

and provides no facts from which a conspiratorial agreement

conspiracy; and (4) an injury to a person or property or

may be inferred. Groce v. City of Phila. L. Dep't, No. 21-5132,

the deprivation of any right or privilege of a citizen of the

2022 WL 493418, at *7 (E.D. Pa. Feb. 17, 2022) (dismissing

United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.

conspiracy claim as wholly conclusory where the plaintiff

1997). Significantly, the “language requiring intent to deprive

failed to alleged facts regarding the formation of a conspiracy

of equal protection, or equal privileges and immunities,

between any Defendants or any other individuals, the period

means that there must be some racial, or perhaps otherwise

of the conspiracy, or actions taken by the alleged conspirators

class-based, invidiously discriminatory animus behind the

to achieve the alleged purpose thereof). Fata's § 1985(3)

conspirators' action.” United Bhd. of Carpenters & Joiners of

claims are not plausible and will be dismissed.

Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 835 (1983)

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971);

see also Farber v. City of Paterson, 440 F.3d 131, 136 (3d D. Due Process Claims

Cir. 2006) (explaining that “§ 1985(3) defendants must have *10 Fata alleges that the Defendants' actions in “arbitrarily

allegedly conspired against a group that has an identifiable denying and obstructing the ‘legal’ home plan process,”

existence independent of the fact that its members are victims resulted in the denial of his procedural due process rights

of the defendants' tortious conduct”); Hauptmann v. Wilentz, under the Fourteenth Amendment. (Compl. at 4.) He also

570 F. Supp. 351, 386 (D.N.J. 1983) (“If the conspiracy claims, without further explanation, that he was denied

only affects the plaintiff individually, the allegations will not “meaningful administrative review.” (Id. at 4-5.) Liberally

satisfy the class-based animus requirement.”), aff'd sub nom., construing his claims, Fata alleges that Defendants somehow

Appeal of Hauptmann, 770 F.2d 1070 (3d Cir. 1985). caused him to remain improperly in custody rather than

released on early parole at some point prior to the end of his

Moreover, a plaintiff must allege specific facts to state a maximum custodial sentence. The Court can discern no claim

plausible § 1985(3) claim. Robinson v. McCorkle, 462 F.2d that rises to the level of a due process violation.10

111, 113 (3d Cir. 1972) (“With near unanimity, the courts have

rejected complaints containing mere conclusory allegations

The Fourteenth Amendment to the United States Constitution

of deprivations of constitutional rights protected under §

provides that the State may not “deprive any person of life,

1985(3). A conspiracy claim based upon § 1985(3) requires

liberty, or property without due process of law.” U.S. Const.

a clear showing of invidious, purposeful and intentional

amend. XIV. An examination of a procedural due process

discrimination between classes or individuals.”); Grigsby v.

claim under the Fourteenth Amendment proceeds in two

Kane, 250 F. Supp. 2d 453, 458 (M.D. Pa. 2003) (“[O]nly

steps. See Bd. of Regents of State Colleges v. Roth, 408 U.S.

exists a liberty or property interest which has been interfered For these reasons, any claims related to the loss of parole do

not allege a separate violation of Fata's due process rights or

with by the state. Kentucky Dep't of Corr. v. Thompson,

otherwise state a plausible constitutional claim.

490 U.S. 454, 460 (1989) (citing Bd. of Regents, 408 U.S.

at 571). Second, if and only if a petitioner establishes the

existence of a protected interest, the court must examine

E. Claims Based on Grievances

whether the procedures attendant upon that deprivation were Fata asserts in part that Warden Russell “rejected wrongfully”

constitutionally sufficient. Id. numerous grievances he made with respect to his attempts to

secure home plans. (See Compl. at 8.) The Court has already

A convicted individual has no constitutionally protected dismissed any due process claims against Defendants based

liberty interest in parole or otherwise being released before on Fata's denial of parole. To the extent Fata also asserts

the expiration of a valid sentence. See Greenholtz v. Inmates a stand-alone claim based on the grievance process, it too

of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979); is dismissed because “prisoners do not have a constitutional

Thomas v. Buechele, 569 F. App'x 93, 95 (3d Cir. 2014) right to prison grievance procedures.” Gerholt v. Wetzel, 858

(concluding no due process violation caused by delayed F. App'x 32, 34 (3d Cir. 2021) (per curiam) (citing Massey v.

parole because the plaintiff had “not alleged the deprivation Helman, 259 F.3d 641, 647 (7th Cir. 2001) and Flick v. Alba,

of a protected liberty interest”). Thus, if prisoners in 932 F.2d 728, 729 (8th Cir. 1991) (per curiam)). Accordingly,

Pennsylvania have a protected liberty interest in some aspect allegations such as those raised by Fata predicated on failures

of their parole, it must derive from Pennsylvania law. See of the grievance process or improper handling of or response

Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (recognizing to grievances do not give rise to a constitutional claim. See

that “States may ... create liberty interests which are protected Woods v. First Corr. Med. Inc., 446 F. App'x 400, 403 (3d Cir.

by the Due Process Clause”). 2011) (per curiam) (“We agree with the District Court that

because a prisoner has no free-standing constitutional right

*11 The statutes governing Pennsylvania's Board of to an effective grievance process, Woods cannot maintain a

Probation and Parole, however, do not grant state prisoners constitutional claim against Lucas based upon his perception

any constitutionally protected liberty interest in being that she ignored and/or failed to properly investigate his

released on parole prior to the expiration of their controlling

grievances.” (internal citation omitted)); Burnside v. Moser,

maximum sentences. See Burkett v. Love, 89 F.3d 135, 139

138 F. App'x 414, 416 (3d Cir. 2005) (per curiam) (explaining

(3d Cir. 1996) (recognizing the general principle that the

that “[i]nmates do not have a constitutionally protected right

Pennsylvania parole statute does not create a liberty interest

to the prison grievance process” and that “a state grievance

in the right to be paroled); Coady v. Vaughn, 770 A.2d 287, procedure does not confer any substantive constitutional

289 (Pa. 2001) (“It is undisputed that [an inmate] does not right upon prison inmates” (internal quotations and citations

have a clear legal right to the grant of parole, nor does omitted)).

the board have a corresponding duty to grant the s

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