Petition for Writ of Certiorari — Samuel O. Jacobs, Petitioner v. Kent Jacobs, et al.

APPENDIX TABLE OF CONTENTS

Appendix A: United States Court of Appeals for the

la

Second Circuit decision, July 13, 2023

Appendix B: United States District Court decision,

10a

October 18, 2022

Appendix C: Family Court decision denying pro se

27a

August 6, 2018

Appendix D: Summons to appear for trial Dec. 5,

30a

2022, November 22, 2022

Appendix E: Petition for trial for "peace of mind",

32a

November 21, 2022

Appendix F: Motion to explain Arrest Warrant 34a

Appendix G: Letter notifying family Court of pro se,

36a

August 23, 2018

Appendix H: Family Court letter denying pro se,

38a

August 8, 2018

Appendix I: Amended Complaint requesting trial by

40a

jury

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT'S LOCAL

RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A

PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE

(WITH THE NOTATION "SUMMARY ORDER"). A

PARTY CITING A SUMMARY ORDER MUST SERVE

A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 13th day of July, two

thousand twenty-three.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

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BETH ROBINSON,

MARIA ARAUJO KAHN,

Circuit Judges.

Samuel 0. Jacobs,

Plaintiff-Appellant,

22-2846

v.

Kent Jacobs, Dutchess County

Family Court,

Defendants-Appellees,

Joseph A. Egitto, Poughkeepsie, NY,

Attn: City Attorney, Charles F. Sanders,

NYS Office of the Attorney General,

Defendants.*

FOR PLAINTIFF-APPELLANT:

Samuel O. Jacobs, pro se,

South Ozone Park, NY.

FOR DEFENDANT-APPELLEE KENT JACOBS:

Kent Jacobs, pro se,

Hopewell Jet., NY.

FOR DEFENDANT-APPELLEE

DUTCHESS COUNTY FAMILY COURT:

Barbara D. Underwood,

Solicitor General;

The Clerk of the Court is directed to amend the caption

as set forth above.

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Judith N. Vale,

Deputy Solicitor General;

Stephen J. Yanni,

Assistant Solicitor General,

Of Counsel, for Letitia James,

Attorney General of the State of New York.

New York, NY.

Appeal from a judgment of the United States

District Court for the Southern District of New York

(Cathy Seibel, Judge).

UPON DUE CONSIDERATION, IT IS

HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is

AFFIRMED.

Samuel Jacobs ("Samuel"), pro se, appeals from

the district court's dismissal of his 42 U.S.C. § 1983

claims against his son Kent Jacobs ("Kent") and the

Dutchess County Family Court ("DCFC"). After Kent

obtained a seven-year order of protection against

Samuel in DCFC, Samuel filed this suit, alleging that

DCFC and Kent had deprived him of his constitutional

rights and caused him physical and psychological

suffering, and that Kent had damaged his reputation.

He also alleged that the DCFC judge had improperly

denied his request to proceed pro se (while allowing

Kent to do so) and issued an arrest warrant against

him without probable cause.

DCFC and Kent both moved to dismiss, the

latter pro se, and the district court granted the

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motions and dismissed Samuel's claims -ithout leave

to further amend. The district court reasoned that

Samuel’s claims against DCFC were barred by

Eleventh Amendment immunity and his claims

against both DCFC and Kent were brought beyond the

statute of limitations. See Jacobs v. Jacobs, No. 21CV-10577 (CS), 2022 WL 10648864, at *4-6 (S.D.N.Y.

Oct. 18, 2022). Samuel appealed. We assume the

parties' familiarity with the remaining underlying

facts, the procedural history, and the issues on appeal.

We review a district court's dismissal for failure

to state a claim for relief under Federal Rule of Civil

Procedure 12(b)(6) de novo (without deference to the

district court), accepting all well-pleaded facts as true

and drawing all reasonable inferences in favor of the

non-moving party-here, Samuel. 74 Pinehurst LLC v.

New York, 59 F.4th 557, 562 (2d Cir. 2023). Our review

of a denial of leave to amend is for abuse of discretion,

"unless the denial was based on an interpretation of

law, such as futility," which would also require de novo

review. Empire Merchs., LLC v. Reliable Churchill

LLP, 902 F.3d 132, 139 (2d Cir. 2018). Pro se

submissions receive special solicitude, meaning we

interpret them to raise "the strongest arguments that

they suggest." Triestman v. Federal Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006) (per curiam).

We agree with the district court that the claims

against DCFC are barred by Eleventh Amendment

immunity. The Eleventh Amendment precludes suits

against states unless the state expressly waives its

immunity or Congress abrogates (repeals) that

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immunity. CSX Transp., Inc. v. N.Y. State Office of

Real Prop. Servs., 306 F.3d 87, 94-95 (2d Cir. 2002).

Eleventh Amendment immunity "extends beyond the

states themselves to state agents and state

instrumentalities that are, effectively, arms of a state."

Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)

(internal quotation marks omitted). The Unified Court

System, of which DCFC is a part, is "unquestionably

an arm of the state" that shares in New York's

immunity to suit. Id. at 368 (internal quotation marks

omitted). New York has not waived its immunity. See

Trotman v. Palisades Interstate Park Comm'n, 557

F.2d 35, 38-40 (2d Cir. 1977). Nor has Congress

abrogated immunity via § 1983. See Dube v. State

Uniu. of N. Y., 900 F.2d 587,594 (2d Cir. 1990).

Samuel argues that Ex parte Young allows

constitutional claims against state officials in their

official capacity. 209 U.S. 123 (1908). While that is

true, Ex parte Young applies only to claims seeking

"prospective relief against state officials." 74Pinehurst

LLC, 59 F.4th at 570. This means for the Ex parte

Young exception to apply, a plaintiff must name a

state official-that is, an individual person-not a state

agency, such- as the family court. See Silva v. Farrish,

47 F.4th 78, 84 (2d Cir. 2022). Although Samuel

sought prospective-that is, forward-looking-relief,1

1 Samuel sought injunctive relief that would require the

family court to "set up guidelines and a review process" to protect

due process rights of defendants, provide supervision and training

for judges, and "[a]utomatic review of disputed and controversial

decisions." Defendant's App'x at 41.

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because Samuel named the family court as a

defendant, not an individual state official,2 the Ex

parte Young exception to immunity does not apply

here.

Samuel also argues that the Eleventh

Amendment bar cannot be applied when a plaintiff

alleges other violations of constitutional rights,

including Fourteenth Amendment rights. But

Eleventh Amendment immunity applies "regardless of

the nature of the relief sought." 74 Pinehurst LLC, 59

F.4th at 570. Put another way, even where a plaintiff

alleges a violation of a Fourteenth Amendment right,

the Eleventh Amendment immunity analysis still has

to consider whether the plaintiff is seeking forwardlooking relief against an individual state official.3

Because Samuel's complaint does not seek forwardlooking relief against an individual state official, the

Ex parte Young exception does not apply.

Kent, as a private party, is not protected by

2 Charles F. Sanders, an Assistant Attorney General

named in the Amended Complaint, was stricken by the district

court after it was determined Samuel named him in error. See

Defendant’s App'x at 5-6.

To the extent that Samuel intended to sue the DCFC

judge for actions taken during the family court proceedings, his

claims would be barred by absolute judicial immunity, which

applies unless a judge acts in "complete absence of all

jurisdiction." Deem v. DiMella-Deem, 941 F.3d 618, 621 (2d Cir.

2019) (citation omitted). Samuel does not assert that the DCFC

judge lacked jurisdiction over the family court case.

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Eleventh Amendment immunity, but we further agree

with the district court that the claims against him (as

well as any claims against DCFC that would somehow

survive Eleventh Amendment immunity) are timebarred. "The statute of limitations for § 1983 actions

arising in New York is three years." Lucente v. Cnty. of

Suffolk, 980 F.3d 284,308 (2d Cir. 2020). The last act

relevant to Samuel's suit-the order allegedly denying

Samuel's request to proceed pro se-was on August 6,

2018. Therefore, assuming for the sake of argument

only that his claims accrued and the statute of

limitations "clock" started ticking at the latest possible

date, Samuel had at least until August 6, 2021, to file

a timely complaint. Instead, he filed his complaint on

December 8,2021. He does not persuasively argue that

the limitations period should be tolled (that is, paused

or delayed) or explain why his claims could have

accrued later. As the district court explained, the

statute of limitations clock for a claim brought under

§ 1983 for violation of Constitutional rights begins to

run at the moment the plaintiff learns of the injury-it

does not restart each time the same injury recurs. See

Defendant's App'x at 10.

Even if Samuel's claims were timely, they are

without merit. Samuel failed to plead facts suggesting

that Kent, a private citizen, was acting "under color of

state law" for the purposes of § 1983 liability for the

alleged constitutional violations. Giordano v. City of

New York, 274 F.3d 740,750 (2d Cir. 2001) (citation

omitted). Under our precedents, the fact that Kent

sought the protection of family court does not mean he

was acting under color of state law. See Dahlberg v.

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Becker, 748 F.2d 85, 93 (2d Cir. 1984) (”[T]he mere

invocation ... of New York’s legal procedures does not

constitute joint participation so as to satisfy the

statutory requirement under § 1983 that there be a

state actor.”); see also Taylor v. Nichols, 558 F.2d 561,

564 (10th Cir. 1977) ("The acts of filing a claim and

testifying at trial do not constitute state action. These

are private acts."). Kent therefore cannot be liable for

constitutional torts.

Finally, the district court did not abuse its

discretion in denying Samuel leave to further amend

the complaint. He had already amended once, after a

conference at which DCFC gave notice of the proposed

grounds for dismissal. See Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000) (observing that pro se

plaintiffs should be granted leave to amend "at least

once”). Samuel otherwise identified no additional facts

or legal theories that might enable his claims to

survive dismissal. See Empire Merchs., 902 F.3d at

146. Leave to amend would also have been futile, as

Samuel’s claims are barred by Eleventh Amendment

immunity, absolute judicial immunity, the statute of

limitations, and (as to the claims against Kent) the

lack of state action. See Cuoco, 222 F.3d at 112 (2d Cir.

2000) ("The problem with [appellant’s] causes of action

is substantive; better pleading will not cure it.’’).

We have considered Samuel’s remaining

arguments and do not find them persuasive. Because

Samuel's claims fail for the legal reasons discussed

above (Eleventh Amendment immunity and the

statute of limitations) we have not considered and take

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no position on his allegations about the events he has

described and the harms he has suffered.

Accordingly, we AFFIRM the judgment of the

district court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

Is/

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APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

SAMUEL 0. JACOBS

Plaintiff,

- against KENT JACOBS, DUTCHESS COUNTY FAMILY

COURT and POUGHKEEPSIE, NY,

Defendants.

Appearances:

Samuel O. Jacobs

Jamaica, New York

Pro Se Plaintiff

Kent Jacobs

Hopewell Junction, NY

Pro Se Defendant

Charles F. Sanders

Assistant Attorney General

Office of the Attorney General

of the State of New York

New York, New York

Counsel for Defendant Dutchess County Family Court

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OPINION & ORDER

No. 21-CV-10577 (CS)

Seibel, J.

Before the Court are the motions to dismiss of

Defendants Kent Jacobs ("Kent") and Dutchess County

Family Court ("’DCFC"). (ECF Nos. 16, 25-26, 28.) For

the following reasons, the motions are GRANTED.

I.

BACKGROUND

I accept as true the facts, but not the

conclusions, set forth in Plaintiffs Amended

Complaint, (ECF No. 24 ("AC")). Initial Complaint,

(ECF No. 1 C'lC")), and opposition submissions, (ECF

No. 27 ("P's Opp. 1"); ECF No. 29 ("P's Opp. 2")).1 See

Washington v. Westchester Cnty. Dep'tofCorr., No. 13CV-5322, 2015 WL 408941, at* 1 n.l (S.D.N.Y. Jan.

30, 2015) (court may give pro se plaintiff the benefit of

considering facts in original complaint even if they

have not been repeated in amended complaint);

Braxton v. Nichols, No. 08-CV-8568, 2010 WL

1010001, at *1 (S.D.N.Y. Mar. 18, 2010) (”[A]llegations

made in a pro se plaintiffs memorandum of law, where

they are consistent with those in the complaint, may

also be considered on a motion to dismiss.").2

1 Citations to the IC, AC, P’s Opp. 1, and P’s Opp. 2 refer

to the pagination generated by the Court's electronic filing system.

2

The Court will send Plaintiff and Kent copies of all

unpublished decisions cited in this Opinion and Order.

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I

A.

Factual Background

Plaintiff Samuel Jacobs ("Samuel") is an 80year-old U.S. army veteran. (IC at 7, 17.) In the past,

he went to schools, where he "entertain[ed] [the]

students and staff with his original storytelling and

music." (AC at 12.)

Plaintiff states that in September of 2014, he

began to suspect that his son Kent was having

problems and potentially using prescription

medications with dangerous side effects. (AC at 9; P's

Opp. 2 at 2.) ”[A]cting upon [his] paternal instincts,"

Samuel called Kent, and when Kent did not return his

call, Samuel wrote Kent a letter "clearly stat[ing] that

[his] intent was to try and help him." (P's Opp. 2 at 2.)

On September 29,2014, Kent filed a complaint against

Samuel in DCFC.3 (IC at 14.) On April 23, 2015, Judge

Joseph Egitto of DCFC found that Samuel had

committed the family offense of harassment in the

second degree and issued an order of protection with a

3 I take judicial notice of the state court action involving

Samuel, (Docket No. 0-05137-14), as well as corresponding orders,

see Jacobs v. Jacobs, 27 N.Y.S.3d 884 (App. Div.) (mem.), leave to

appeal denied, 28 N.Y.3d 901 (2016); Jacobs v. Jacobs, 90

N.Y.S.3d 131 (App. Div. 2018). Courts can "look to public records,

including complaints filed in state court, in deciding a motion to

dismiss." Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels &

Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). I

consider state court records for the fact that they exist and for the

fact of what was said in them, but not for the truth of the matters

asserted therein. See Kramer v. Time Warner Inc .. 937 F.2d 767,

774 (2d Cir. 1991).

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duration of two years. See Jacobs. 27 N.Y.S.3d at 884.

The Second Department affirmed, id., and the Court of

Appeals denied Samuel's motion for leave to appeal,

see Jacobs, 28 N.Y.3d at 901. On December 8, 2017,

Judge Egitto extended the order of protection for an

additional five years, and on December 19, 2018, the

Second Department again affirmed. See Jacobs. 90

N.Y.S.3d at 133.

Samuel had been represented by courtappointed attorney Lawrence Moore before the DCFC

but believed Mr. Moore "refused/ignored two (2)

letters," dated September 22, 2017 and September 27,

2017, "directing him to appeal a ruling by Judge

Egit[t]o." (IC at 7; see AC at 10.) After the time to

appeal had elapsed, Samuel notified Judge Egitto that

he had fired Moore and intended to continue pro se. (IC

at 7, 14.) But Judge Egitto allegedly denied Samuel's

request. (Id. at 7.) Samuel alleges that Judge Egitto

violated his Fifth and Fourteenth Amendment rights

because he allowed Kent to proceed pro se but denied

Samuel "that same right," which left him "on trial with

no legal defense." (Id. at 15.)

Samuel claims that Kent committed a criminal

act by filing false charges against Samuel. (Id. at 14.)

Samuel alleges that Kent accused him of child abuse

with the intention that Samuel would be convicted of

a felony and not able to teach again. (Id.) Samuel also

claims that Judge Egitto "sentenced" him to seven

years, (AC at 10), an apparent reference to the twoyear order of protection combined with the five-year

extension thereof.

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i

On February 27, 2018, Samuel wrote a letter to

Judge Egitto regarding an upcoming court appearance

that he could not attend. (Id. at 20.) He also alleges he

called the court and offered to do a telephone

conference but was told that that was not necessary.

(Id. at 9.) On or about April 6, 2018. Judge Egitto

issued a warrant for Samuel's arrest. (IC at 15-16; AC

at 23.)4 Samuel alleges he received a phone call from

the police telling him about the warrant, but Samuel

thought it was mistake and the police then suggested

he "contact the court to correct the error." (AC at 9.)

Samuel alleges this "warrant was issued With no

valid [p]robable [clause/1 in violation of his rights

under the Fourth, Fifth, and Fourteenth Amendments.

(IC at 15.) Samuel wrote a letter to Judge Egitto on

May 4, 2018- "[o]n advi[c]e from the police" - asking

for an explanation, (id. at 15, 17), but claims his letter

was ignored. He also allegedly submitted a "Motion to

Explain Arrest Warrant to DCFC, which was delivered

on July 30, 2018.5 (Id. at 10.) On August 6, 2018, Judge

Egitto issued an order stating that he would not

consider any motions filed on Samuel's behalf unless

they were submitted by counsel. (AC at 16-17.) And on

August 8, 2018, the principal court attorney for DCFC

4 On the "Warrant of Arrest" attached to the AC, there is

a diagonal line across the page and the handwritten notation,

"Vacated By Court 8/21/18." (AC at 22.)

5 In his opposition to DCFC's motion to dismiss, Samuel

stated he filed the Motion to Explain Arrest Warrant on August

23, 2018, (P's Opp. 1 at 2), but that is the hearing date Samuel put

on the motion, (IC at 10).

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wrote to Samuel informing him that his previous

"motion to explain arrest warrant" was "being

returned to you as it is not a proper motion. There is

no authority to make such a motion." (Id at 14: IC at

11.) Plaintiff claims, however, that this "motion is still

waiting for a decision." (AC at 9.)

As a result of Defendants' actions, Samuel

claims that his ability to walk was severely damaged,

as he had to walk tweh e blocks to and from the

subway and go up and down forty flights of stairs to

travel to DCFC. (Id at 11.) He claims he is no longer

able to walk without a walker or a cane. (Id.) He also

claims he suffers from stress and anxiety after being

on trial for child abuse and being a convicted felon,

even though, he has not committed any crime. (Id.)

Additionally, given (what he believes to be) his felony

conviction, he can no longer teach or work with

children, and so his "right to work to work was taken

away by defendant Kent Jacobs, and the Family

Court." (Id.)

B.

Procedural History

On December 8, 2021, Samuel filed a complaint

in this Court against Kent, Judge Egitto, DCFC, and

the City of Poughkeepsie, New York, alleging

violations of the Fourth, Fifth, Sixth, Eighth, and

Fourteenth Amendments. (IC at 2, 5-6.) On February

8, 2021, Kent filed his Answer. (ECF No. 13.) On

February 11, 2022, Defendants DCFC and Judge

Egitto filed a pre-motion letter in anticipation of their

motion to dismiss. (ECF No. 15 ("DCFC Mem.") at 1.)

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The Court held a pre-motion conference on March 18,

2022, at which the Court granted Samuel leave to

amend his complaint and dismissed the City of

Poughkeepsie as a defendant. (Minute Entry dated

Mar. 18, 2022.) On April 8, 2022, Samuel filed an

Amended Complaint, alleging that Kent, DCFC, and

the City of Poughkeepsie violated his Fourth, Fifth,

Eighth, and Fourteenth Amendments. (AC at 2, 5-6.)6

Because Samuel did not list Judge Egitto as a

Defendant in his Amended Complaint, (see id. at 5-6),

the Clerk terminated him as a defendant. On the

"Defendant Information" page, however, Samuel added

the name and contact information of the Assistant

Attorney General ("AAG") representing DCFC. (Id. at

6.)

On April 13, 2022, Defendant DCFC filed a

letter, supplementing its February 11, 2022 letter.

(ECF No. 25 ("DCFC Mem. 2").) The Court ordered the

Clerk of Court to strike the AAG as a Defendant,

finding that Samuel included the AAG's contact

information because the AAG represents DCFC, not

because he intended to name the AAG as a defendant,

and deemed the April 13th letter, and Defendants’

previous February 11th letter, to be DCFC's motion to

dismiss. (ECF No. 26.) Kent subsequently also filed a

motion to dismiss, (ECF No. 28 ("D Jacobs Mem.")),

6 Despite my having dismissed the City of Poughkeepsie

as a defendant, Plaintiff renamed the City in the AC, apparently

under the erroneous impression the Judge Egitto was an employee

of the City or that the DCFC was an arm of the City. (See AC at

7.)

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and Samuel filed separate oppositions to each motion,

(P's Opp. 1; P's Opp. 2).

II.

LEGAL STANDARDS

A.

Federal Rule of Civil Procedure

12(b)(6)

"To survive a motion to dismiss, 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)

(quotingBellAtl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). "A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is

liable for the misconduct alleged." Id. "While a

complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiffs obligation to provide the grounds of his

entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements

of a cause of action will not do." Twombly, 550 U.S. at

555 (cleaned up). While Federal Rule of Civil

Procedure 8 "marks a notable and generous departure

from the hypertechnical, code-pleading regime of a

prior era, ... it does not unlock the doors of discovery

for a plaintiff armed with nothing more than

conclusions." Iqbal, 556 U.S. at 678-79.

In considering whether a complaint states a

claim upon which relief can be granted, the court

"begin[s] by identifying pleadings that, because they

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are no more than conclusions, are not entitled to the

assumption of truth," and then determines whether

the remaining well-pleaded factual allegations,

accepted as true, "plausibly give rise to an entitlement

to relief." Id. at 679. Deciding whether a complaint

states a plausible claim for relief is "a context-specific

task that requires the reviewing court to draw on its

judicial experience and common sense." Id. "[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.'" Id. (cleaned up)

(quoting Fed. R. Civ. P. 8(a)(2)).

When deciding a motion to dismiss under Rule

12(b)(6):

a district court may consider the facts

alleged in the complaint, documents

attached to the complaint as exhibits,

and documents incorporated by reference

in the complaint. Where a document is

not incorporated by reference, the court

may nevertheless consider it where the

complaint relies heavily upon its terms

and effect, thereby rendering the

document integral to the complaint. For

a document to be considered integral to

the complaint, the plaintiff must rely on

the terms and effect of a document in

drafting the complaint; mere notice or

possession is not enough. And even if a

document is integral to the complaint, it

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must be clear on the record that no

dispute exists regarding the authenticity

or accuracy of the document, and it must

be clear that there exist no material

disputed issues of fact regarding the

relevance of the document.

United States of America ex rel. Foreman v. AECOM,

19 F.4th 85, 106 (2d Cir. 2021) (cleaned up), cert,

denied, 212 L. Ed. 2d 764 (U.S. May 2, 2022) (No. 211314). A court may also consider matters "of which

judicial notice may be taken under Fed. R. Evid. 201."

Kramer, 937 F.2d at 773.

Plaintiff attaches a variety of exhibits to his IC

and AC, including his letters to DCFC and Judge

Egitto, decisions of the court, and communications

from DCFC. (IC at 10-17; AC at 12- 27.) I will consider

these exhibits not only because they are attached to

the complaints, but because they are integral to them,

in that they form the factual basis for many of the

allegations in the IC and AC, and because Plaintiff

relied on them in framing his allegations. Neither

party disputes their authenticity, accuracy or

relevance.

B.

Pro Se Plaintiffs

Submissions by pro se plaintiffs are to be

examined with "special solicitude," Tracy v.

Freshwater, 623 F.3d 90, 102 (2d Cir. 2010),

interpreted "to raise the strongest arguments that

they suggest," Burgos v. Hopkins, 14 F.3d 787, 790 (2d

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Cir. 1994), and "held to less stringent standards than

formal pleadings drafted by lawyers," Hughes v. Rowe,

449 U.S. 5, 9 (1980) (per curiam) (cleaned up).

Nevertheless, "threadbare recitals of the elements of a

cause of action, supported by mere conclusory

statements, do not suffice," and district courts "cannot

invent factual allegations" that the plaintiff has not

pleaded. Chavis v. Chappius, 618 F.3d 162, 170 (2d

Cir. 2010) (cleaned up).

III.

DISCUSSION

A.

Eleventh Amendment Immunity

Plaintiffs claims against Defendant DCFC arc

barred under the Eleventh Amendment. "As a general

rule, state governments may not be sued in federal

court unless they have waived their Eleventh

Amendment immunity, or unless Congress has

abrogated the states' Eleventh Amendment

immunity." Gollomp v. Spitzer, 568 F.3d 355, 366 (2d

Cir. 2009) (cleaned up). "The immunity recognized by

the Eleventh Amendment extends beyond the states

themselves to state agents and state instrumentalities

that are, effectively, arms of a state." Id. (cleaned up).

New York has not waived its Eleventh Amendment

immunity to suit in federal court, and Congress did not

abrogate the states' immunity in enacting 42 U.S.C. §

1983. See Trotman v. Palisades Interstate Park

Comm 'n, 557 F.2d 35, 40 (2d Cir. 1977).

As DCFC is part of the New York State Unified

Court System, which is an agency of the State of New

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York, this state-court defendant is immune from suit

under the Eleventh Amendment. See Gollomp, 568

F.3d at 368 ("[T]he New York State Unified Court

System is unquestionably an arm of the State and is

entitled to Eleventh Amendment sovereign

immunity.") (cleaned up); Roger of the Fam. Forrest v.

45 C.F.R.§ 75.2 TV-D Contractor Steve Banks, No. 18CV-10866, 2019 WL 4194332, at *3 (S.D.N.Y. Aug. 30,

2019) (New York Family Court immune from § 1983

suit under Eleventh Amendment). Samuel's § 1983

claims against DCFC are dismissed as barred by the

Eleventh Amendment.7

B.

Statute of Limitations

Kent argues that Samuel’s claims are timebarred. (D Jacobs Mem. at 2.) "The statute of

limitations for actions under § 1983 is the statute of

7 Any such claim would also be barred by the statute of

limitations, as discussed below. To the extent Samuel intended to

bring claims against Judge Egitto, they would also be dismissed,

not only based on the statute of limitations, but also because

judges are entitled to absolute immunity from suit. See Bliven v.

Hunt, 579 F.3d 204, 209 (2d Cir. 2009) ("[J]udges generally have

absolute immunity from suits for money damages for their judicial

actions"). Likewise, if Samuel intended to bring a claim against

the AAG, it would also be dismissed on grounds of immunity, see

Wang v Logue, 351 F. App'x 510,510 (2d Cir. 2009) ("[AAG] is

absolutely immune from suit for actions taken during [his]

representation of State defendants."), and because the AC

contains no facts regarding the AAG. Any claims against the City

of Poughkeepsie are meritless and therefore dismissed, given that

the AC contains no allegations (let alone timely ones) regarding

actions of the City or any employee thereof.

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limitations applicable to personal injury actions

occurring in the state in which the federal court sits."

Harris v. Bd. of Educ230 F. Supp. 3d 88, 97

(E.D.N.Y. 2017) (cleaned up); see Milan v. Wertheimer,

808 F.3d 961,963 (2d Cir. 2015). The statute of

limitations for a § 1983 action in New York is three

years. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir.

2013); Lynch v. Suffolk Cnty. PoliceDep't, Inc., 348 F.

App'x 672,674 (2d Cir. 2009) (summary order). Samuel

filed his complaint on December 8, 2021, and thus any

claims arising prior to December 8, 2018 are timebarred.

Samuel’s allegations against Kent are that he

"used Judge Egit[t]o and the Family Court of

Poughkeepsie, NY to damage my reputation and right

to work which violated my rights under Article 41, and

the 14th Amendment." (IC at 7.) He asserts that Kent

knowingly filed a false report and "provided proof of

his crime in... his Sworn Affidavit dated 11/5/2014" in

which ”[h]e confessed that 'he never introduced his son

to [Samuel]."' (AC at 10.) All of Samuel's allegations

are based on actions that occurred prior to December

8, 2018; Kent filed his charges against Samuel on

September 29, 2014, (IC at 14); his sworn affidavit is

from November 5, 2014, (AC at 26); an initial order of

protection was entered on April 23, 2015, see Jacobs,

27 N.Y.S.3d at 884; and an extension of the order of

protection was entered on December 8, 2017, Jacobs,

90 N.Y.S.3d at 133.8

The extension of the order of protection was affirmed on

December 19, 2018, but the matter is listed as fully submitted as

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Samuel argues that Kent "cannot claim Statute

of Limitations because his violation of my rights under

the Constitution is presently being litigated. There is

no Statute of Limitations on the crime of violating the

Constitution." (P's Opp. 2 at 3.) Samuel is incorrect.

There are indeed statutes of limitations for

constitutional claims arising under § 1983, and as set

forth above, in New York it is three years. That his

case is currently being litigated — a fact not apparent

from the record - would not defeat the statute of

limitations. Under federal law, a claim arising under

§ 1983 "accrues," meaning the statute of limitations

starts to run, when the plaintiff "knows or has reason

to know of the injury which is the basis of his action."

Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.

2002) (cleaned up): see Pinaud v. Cnty. of Suffolk, 52

F.3d 1139, 1157 (2d Cir. 1995) ("[W]hen a plaintiff

knows or ought to know of a wrong, the statute of

limitations on that claim starts to run .... "). All of the

above claims arise from alleged injuries of which

Samuel knew, and that therefore accrued, prior to

December 8, 2018, and therefore his claims against

Kent are time-barred.

C.

Leave to Amend

of November 5, 2018, see Jacobs, 90 N.Y.S.3d at 131, so even if

Samuel had alleged that Kent's participation in the appellate

litigation was a violation of Samuel's rights (which he has not),

Samuel has not pleaded, and there is no reason to believe, that

any such action by Kent was within the limitations period.

Likewise, the latest action on Judge Egitto's part was on August

8, 2018, more than three years before this case was filed.

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Leave to amend a complaint should be freely

given "when justice so requires." Fed. R. Civ. P.

15(a)(2). "[I]t is within the sound discretion of the

district court to grant or deny leave to amend." Kim v.

Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (cleaned up).

"Leave to amend, though liberally granted, may

properly be denied" for ’"repeated failure to cure

deficiencies by amendments previously allowed"' or

"’futility of amendment,’" among other reasons.

Ruotolo v. City ofN. Y, 514 F.3d 184,191 (2d Cir. 2008)

(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

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Plaintiff has already amended his complaint,

after having the benefit of a pre-motion letter from

Defendant DCFC outlining the proposed grounds for

dismissal, (ECF No. 15), and the discussion at the

March 18, 2022 pre-motion conference, (see Minute

Entry dated Mar. 18, 2022). In general, a plaintiffs

failure to fix deficiencies in the previous pleading,

after being provided notice of them, is alone sufficient

ground to deny leave to amend. See Nat’l Credit Union

Admin. Bd. v. U.S. Bank Nat'l Ass'n, 898 F.3d 243,

257-58 (2d Cir. 2018) ("When a plaintiff was aware of

the deficiencies in his complaint when he first

amended, he clearly has no right to a second

amendment even if the proposed second amended

complaint in fact cures the defects of the first. Simply

put, a busy district court need not allow itself to be

imposed upon by the presentation of theories

seriatim.") (cleaned up) (emphasis added); In re Eaton

Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242

(S.D.N.Y. 2005) (denying leave to amend because "the

plaintiffs have had two opportunities to cure the

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defects in their complaints, including a procedure

through which the plaintiffs were provided notice of

defects in the Consolidated Amended Complaint by the

defendants and given a chance to amend their

Consolidated Amended Complaint," and "plaintiffs

have not submitted a proposed amended complaint

that would cure these pleading defects"), aff'd sub

nom. Bellikoff v. Eaton Vance Corp., 481 F.3d 110,118

(2d Cir. 2007) (per curiam) ("[P]laintiffs were not

entitled to an advisory opinion from the Court

informing them of the deficiencies in the complaint

and then an opportunity to cure those deficiencies.")

(cleaned up)

Moreover, Plaintiff has not asked to amend

again or otherwise suggested that he is in possession

of facts that would cure the deficiencies identified in

this opinion. See TechnoMarine SA v. Giftports, Inc.,

758 F.3d 493, 505 (2d Cir. 2014) (plaintiff need not be

given leave to amend if plaintiff fails to specify how

amendment would cure the pleading deficiencies in the

complaint); Gallop v. Cheney, 642 F.3d 364, 369 (2d

Cir. 2011) (district court did not err in dismissing

claim with prejudice in absence of any indication

plaintiff could or would provide additional allegations

leading to different result); Horoshko v. Citibank, NA.,

373 F.3d 248, 249-50 (2d Cir. 2004) (per curiam)

(district court did not abuse its discretion by not

granting leave to amend where there was no indication

as to what might haw been added to make complaint

viable and plaintiffs did not request leave to amend).

Accordingly, the Court declines to grant leave to

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amend sua sponte.

IV.

CONCLUSION

For the foregoing reasons, Defendants' motions

are GRANTED.

The Clerk of Court is respectfully directed to

terminate ECF No. 28 and close the case.

SO ORDERED.

Dated:

October 18, 2022

White Plains, New York

is/

CATHY SEIBEL, U.S.D.J.

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APPENDIX C

FAMILY COURT OF THE

STATE OF NEW YORK

COUNTY OF DUTCHESS

In the Matter of a Proceeding under Article 8 of the

Family Court Act

KENT JACOBS,

Petitioner,

-againstSAMUEL JACOBS, SR.,

Respondent.

EGITTO, JOSEPH A., FAMILY COURT JUDGE

DECISION AND ORDER

Docket No. 0-005137-14

Family Unit No. 5646

Motion #3

THE FOLLOWING PAPERS WERE READ AND

CONSIDERED ON THIS MOTION BY

RESPONDENT TO RECEIVE COURT DECISIONS

PAPERS

NUMBERED

lpp

NOTICE OF MOTION

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AFFIRMATION IN SUPPORT

Exhibits...........................

2pp

lpp

UPON THE FOREGOING PAPER IT IS

ORDERED THAT THE MOTION IS GRANTED.

In addition to consideration of the above papers,

the Court takes judicial notice of its own file and all

prior proceedings in this matter. See Matter ofD65 obo

Sulin v. Cronin, 37 AD3d 463 [2007]; Matter ofKhajibi

v. Weill, 8AD3d 485 [2004]; Matter of Terrance L., 276

AD2d 699 [2000].

Having reviewed the United Court Management

System, the Court is attaching to this decision copies

of all decisions and orders issued by the Court since

the conclusion of the trial on September 22, 2017.

These include the decision and order, bearing docket

number 0-005137-14[illegible] and dated December 8,

2017 the order of protection bearing docket number O05137-14 and dated December 11, 2017; the warrant of

arrest bearing docket number 0-05137-14 and dated

April 6, 2018; the decision and order (motion #2),

bearing docket number 0-05137-14 and dated June 5,

2018; and the order of dismissal, bearing docket

number 0-02505-18 and dated June 12, 2018.

The Court notes that the respondent, Samuel

Jacobs, Sr continues to be represented by the Office of

the Public Defender, by Lawrence Moore, whose

address is 22 Market Street, Poughkeepsie, NY 12601

and telephone number is (845) 486-2271. No

application has ever been received by this Court

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seeking to relieve the Office of the Public Defender of

its assignment to represent Samuel Jacobs, Sr. Absent

emergency, no further application by the respondent

Samuel Jacobs, Sr will be considered by the Court

unless submitted by counsel. See Mueller v. Mueller,

96 AD3d 948 (2d Dept. 2012); Taub v. Taub, 94 AD3d

901 2d Dept. 2012).

Accordingly, this motion seeking to receive court

decisions is granted.

The foregoing shall constitute the decision and

order of this court.

SO ORDERED.

DATED:

Poughkeepsie, NY

8/6/2018

/ 8/

HON. JOSEPH A. EGITTO

JUDGE OF THE FAMILY COURT

COUNTY OF DUTCHESS

TO:

Samuel Jacobs, Sr.

Kent Jacobs

Lawrence Moore, Esq.

Kelley Enderley, Esq.

[DATE STAMP MOSTLY ILLEGIBLE]

8/13/18

/s/

PETER A. PALLADINO

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APPENDIX D

i

FAMILY COURT OF THE

STATE OF NEW YORK

COUNTY OF DUTCHESS

In the Matter of an Article 8

Family Offense Proceeding

Kent S. Jacobs (Petitioner)

Samuel Jacobs Sr. (Respondent)

File # 5466

Docket# O-05137-14/22B

ORDER TO SHOW CAUSE IN PERSON

Samuel Jacobs Sr.

114-75 145 St

Jamaica, NY 11436

Upon the attached petition of Kent S. Jacobs

It is hereby:

i

ORDERED that Samuel Jacobs Sr. show cause

before this count IN PERSON on:

Date Time Part:

Purpose:

December 5, 2022 at 12:00 PM in

Part 4

First Appearance and In-Person

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Presiding:

Location:

Room:

appearance

Hon. Joseph A. Egitto

Courthouse, 50 Market St.,

Poughkeepsie, NY 12601-3204

378

Or as soon thereafter as the parties can be

heard, why an order for the relief of

Modification of Order Protection should not be

made and why such other and further relief

should not be granted as the Court may

determine.

Please bring this notice with you and check in with the

Court Officer in the Part.

ORDERED that by Personal Service, of a copy

of this order together with the papers upon

which it is granted, upon Samuel Jacobs Sr. on

or before November 30, 2022, be deemed

sufficient service.

Dated November 22, 2022

Is/

Hon. Joseph A. Egitto

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APPENDIX E

FAMILY COURT OF THE

STATE OF NEW YORK

COUNTY OF DUTCHESS

Kent S. Jacobs

Petitioner,

vs.

Samuel Jacobs Sr.

Respondent

[DATE STAMP]

FILED

NOV 21 2022

DUTCHESS COUNTY

FAMILY COURT

MULTI-PURPOSE PETITION

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Docket No. 0-05137-14/22B

Family Unit No. 56466 12/11/17

1. Petitioner is Kent Jacobs

Date of Birth 01-16-67

2. Petitioner's address: 118 Van Vlack Rd.

Hopewell Jet., N.Y. 12533

Social Security # XXX-XX-3608

Phone # area code (917) 434-4456

3. Respondent is: Samuel Jacobs Sr.

Date of Birth 09-27-1937

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4. Respondent's address: 114-75 145th Street

Jamaica, NY 11436

Social Security #____________

Phone # area code ( )_____________

5. Date of original order 9-29-2104

Date of most recent Modification 12-11-2017

6. Current orders: 12-11-2022

7. Facts upon which relief requested is based: The

Respondent is continuing to bring forth litigation

which is meritless. I'm not sure what his intent is. All

this originates from 2014. He has no new evidence to

substantiate his accusations.

8. Relief requested: I am requesting the FOP be

extended for at least two addition years. So far it has

been effective. This may give me some peace of mind.

Isl

Petitioner (signature)

STATE OF NEW YORK

COUNTY OF DUTCHESS ss:

FAMILY COURT

Kent Jacobs, being duly sworn, deposes and says that

(s)he is the petitioner in the above matter; that (s)he

has read the petition and/or has had it read to (her)

him and had known it to be true with exception to

those facts alleged on information and belief, and as to

those facts (s)he believes them to be true.

Is/

Petitioner (signature)

Subscribed and sworn to before this 21 day of Nov 2022

33a

APPENDIX F

FAMILY COURT OF THE

STATE OF NEW YORK

COUNTY OF DUTCHESS

KENT JACOBS,

Plaintiff

-againstSAMUEL JACOBS SR..

Defendant

Docket #: 0-05137-14

MOTION TO EXPLAIN ARREST WARRENT

Motion by:

Defendant Sam Jacobs

Date, Time, and Place of Hearing:

August 23, 2018, 2 PM

Room 369, Family Court,

State of New York

County of Duchess,

Court House, 50 Market Street,

Poughkeepsie, New York 12601

Supporting Papers:

Affirmation of Samuel Jacobs Sr

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Relief Sought:

1) Justify arrest Warrent

2) Appoint attorney to represent me at hearing

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35a

APPENDIX G

Sam Jacobs

114-75 145th Street

Jamaica, NY 11436

(718)659-4903

8/13/2018

To:

re:

Kelly S Myers

Jacobs v Jacobs

Family Unit No 56466

I am a pro se litigant.

I do not have a Public Defender. I fired attorney

Lawrence Moore on 3/26/20018 (see attached) and

exercised my legal right to proceed as a pro se litigant.

I also notified Judge Egito of my dismissal of attorney

Moore. Attorney Moore has nothing to do with these

proceedings.

A litigant in civil proceedings is entitled

to a fair hearing, imbued with the

protections of due process. The due

process guarantee expressed in the

Fourteenth Amendment to the United

States Constitution requires assurance of

fundamental fairness during legal

proceedings. U.S. Const, amend. XIV § 1.

Petitioner Kent Jacobs has committed criminal

36a

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acts in the court proceedings against me that have

been blatently ignored. Under penal law 240.50(4)(b),

and Penal Law 210.10 petition Kent Jacobs

could/should receive a fine of up to $1,000 and up to 7

years in prison.

When also considering that I was put on trial

and convicted of "wanting to contact the petitioner

some day in the future", a warrent for my arrest with

no justifiable reason, and your rejection of my right to

file a motion, any reasonable person could easily come

to the conclusion that my right to Due Process is

being violated.

In sum, I am my attorney and I respectfully

request a decision on this motion, and the four (4)

motions that I previously filed as soon as possible.

/si

Sam Jacobs

Attorney pro se

i

[DATE STAMP]

STATE OF NEW YORK

COUNTY OF QUEENS

SIGNED BEFORE ME THIS

13th DAY OF August 2018

Is/

Althea Benton

Notary Public - State of New York

No. 01BE6262031

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APPENDIX H

[LETTERHEAD OF STATE OF NEW YORK

UNIFIED COURT SYSTEM NINTH JUDICIAL

DISTRICT DUTCHESS COUNTY FAMILY COURT

August 8, 2018

Mr. Samuel Jacobs, Sr.

114-75 145th Street

Jamaica, NY 11436

Re:

Jacobs v. Jacobs

Family Unit No. 56466

Dear Mr. Jacobs:

Your "motion to explain arrest warrent (sic)" is

being returned to you as it is not a proper motion.

There is no authority to make such a motion.

You continue to be represented by the Office of

the Public Defender, whose telephone number is (845)

486-2271. If you are not satisfied with the assistance

that you have received by the particular assistant

public defender assigned to your case, then you should

contact the Public Defender, Thomas Angell. Any

questions that you may have about court procedures,

or decisions or warrants issued by the court, must be

directed to your attorney.

Very truly yours,

38a

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!

J

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!

/s/

KELLY S. MYERS

Principal Court Attorney

Enel.

Cc:

Lawrence Moore, Esq. (W/o end)

Kent Jacobs (w/o end)

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APPENDIX I

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

SAMUEL O JACOBS

US ARMY VETERAN

Write the full name of each plaintiff.

-against-

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KENT JACOBS

DUTCHESS FAMILY COURT

POUGHKEEPSIE, NY

Write the full name of each defendant. If you need

more space, please write "see attached" in the space

above and attach an additional sheet of paper with the

full list of names. The names listed above must be

identical to those contained in Section II.

21cvl0577

(Include case number if one has been assigned)

AMENDED COMPLAINT

Do you want a jury trial?

h Yes

□ No

NOTICE

The public can access electronic court files. For privacy

40a

and security reasons, papers filed with the court

should therefore not contain: an individual’s full social

security number or full birth date; the full name of a

person known to be a minor; or a complete financial

account number. A fifing my include only: the last four

digits of a social; the year of an individual's birth; a

minor's initials; and the last four digits of a financial

account number. See Federal Rule of Civil Procedure

5.2.

41a