Poole v. NY State et al

Filing 37

ORDER granting 19 Motion to Dismiss. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defendants' motion to dismiss is granted. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/6/2012. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-921 (JFB) (AKT)
_____________________

DARIN POOLE,
Plaintiff,
VERSUS

NEW YORK STATE, NEW YORK STATE DIVISION OF PAROLE, PAROLE OFFICER
HUBBARD AND MARAGRET JENNETTE,
Defendants.
___________________
MEMORANDUM AND ORDER
March 6, 2012
___________________

JOSEPH F. BIANCO, District Judge:

“defendants”), alleging that his rights were
violated when Hubbard authorized charges
to be filed against plaintiff for violating
conditions of his parole. Plaintiff alleges
that he was subjected to emotional stress and
seeks $750,000.00 in damages from each
defendant.
Plaintiff also requests that
Jennette be given jail time. Defendants New
York State, the Division of Parole and
Hubbard (the “New York State defendants”)
have filed a motion to dismiss plaintiff’s
Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).3 For the reasons set

Pro se plaintiff Darin Poole (“plaintiff”
or “Poole”) brings this action for relief
pursuant to 42 U.S.C. § 1983 (“Section
1983”)1 and for common law defamation
against defendants, New York State, the
New York State Division of Parole (the
“Division of Parole”), Parole Officer
Hubbard (“Hubbard”) and Maragret Jennette
(collectively
the
(“Jennette”)2
1

Plaintiff does not specifically state that he is
bringing his complaint pursuant to Section 1983. Nor
does plaintiff identify which constitutional right he
believes was infringed.
However, the Court
construes plaintiff’s claim as arising pursuant to
Section 1983.

plaintiff’s Second Amended Complaint throughout
this decision.
3

Jennette has not appeared in this action and the
docket indicates that she was never served with
process. However, as discussed infra, to the extent
plaintiff has attempted to plead a Section 1983 claim

2

Maragret Jennette’s name is spelled differently
throughout plaintiff and defendants’ submissions.
However, the Court will use the spelling provided in
1

forth below, the New York State defendants’
motion to dismiss is granted. The Court
dismisses plaintiff’s federal claims with
prejudice and declines to exercise
jurisdiction over plaintiff’s state law claims.
I.

BACKGROUND

A.

charges.
(Id.)
Hubbard “[s]landered
[plaintiff’s] name and defamed [plaintiff’s]
character
by
releasing
confidential
information to Maragret Jennette a woman
who she never met or seen or interviewed
she took falsified information and tried to
use it to her advantage without doing any
kind of an investigation.” (Id.)

Factual History
Plaintiff’s Second Amended Complaint
does not indicate what reports were made by
Jennette and Hubbard. However, the “State
of New York – Executive Department –
Division of Parole Violation of Release
Report” and the “Notice of Violation”
provided by the New York State defendants
indicate that Poole violated eight separate
conditions of his parole. (Affidavit of Lori
L. Pack in Support of the Motion to Dismiss
dated July 11, 2011 (the “Pack Affidavit”),
Ex. 3.) The charges against Poole were as
follows: (1) Charge 1: failed to make his
office report at 250 Fulton Street,
Hempstead, New York, on June 22, 2010
and thereafter; (2) Charge 2: changing his
approved residence without immediately
notifying his parole officer; (3) Charge 3:
putting his hands around Jennette’s throat on
June 4, 2010, at approximately 8:45 a.m., at
Waterbury, Connecticut Metro North Train
Station; (4) Charge 4: pushing Jennette on
June 4, 2010, at approximately 8 a.m., at
Waterbury, Connecticut Metro North Train
Station; (5) Charge 5: taking Jennette’s cell
phone without permission at approximately
6:00 a.m., on June 8, 2010, at 102 Ledgeside
Avenue, Waterbury, Connecticut; (6)
Charge 6:
taking $300 from Jennette
without permission at approximately 6:00
a.m., on June 8, 2010, at 102 Ledgeside
Avenue, Waterbury, Connecticut; (7)
Charge 7: leaving New York State without
permission from his parole officer on June 4,
2010; and (8) Charge 8: leaving the state of
New York on June 8, 2010, without
permission from his parole officer. (Id.)

The following facts are taken from the
Second Amended Complaint4 and are not
finding of fact by the Court. Instead, the
Court assumes these facts to be true for
purposes of deciding the pending motion to
dismiss and will construe them in a light
most favorable to plaintiff, the non-moving
party.
Jennette allegedly filed false reports and
charges relating to plaintiff to the Waterbury
Police Department and called plaintiff’s
parole officer, Hubbard. (Second Amended
Complaint (“SAC”) at 4.) Hubbard did not
research
Jennette’s
allegations
and
subsequently charged plaintiff with false
against Jennette, the Court sua sponte dismisses
plaintiff’s claim with prejudice. Moreover, because
the Court dismisses plaintiff’s federal claim, as
discussed infra, the Court declines to exercise
jurisdiction over plaintiff’s state law claims.
4

There are two documents titled “Amended
Complaint” filed in this action. The first Amended
Complaint only names Jennette and Hubbard as
defendants. (Amended Complaint, Mar. 11, 2011,
ECF No. 7.) This Amended Complaint states that
Poole signed and delivered this Amended Complaint
to prison authorities on March 7, 2011 and it was
filed with the Clerk’s Office in Brooklyn on March
11, 2011 . (Id.) The second document titled
“Amended Complaint” names all four defendants and
the plaintiff alleges that he signed and delivered it on
March 11, 2011. (Amended Complaint, Mar. 16,
2011, ECF No. 8.) That Amended Complaint was
filed with the Clerk’s Office in Central Islip on
March 16, 2011. (Id.) Accordingly, the “Second
Amended Complaint” refers to the Amended
Complaint filed on March 16, 2011 against all four
defendants.
2

submit an opposition by August 19, 2011.
Plaintiff also failed to appear for the initial
conference before Magistrate Judge
Kathleen A. Tomlinson on November 8,
2011. Judge Tomlinson then scheduled an
Order to Show Cause hearing for December
1, 2011, directing plaintiff to appear and
show cause why his case should not be
dismissed for failure to prosecute. On
December 1, 2011, plaintiff appeared before
Judge Tomlinson and indicated that he
wished to go forward with his case and
oppose the New York State defendants’
motion to dismiss.
Judge Tomlinson
directed plaintiff to file a letter to Judge
Bianco by December 8, 2011, requesting
permission to file a late opposition. Plaintiff
failed to file a letter by December 8, 2011,
and by Order dated December 28, 2011,
Judge Bianco ordered plaintiff to file a letter
explaining why he failed to respond to the
motion and warned plaintiff that failure to
respond would result in the motion being
considered without opposition papers. On
January 3, 2012, plaintiff filed a letter
indicating that he wished to proceed and that
he did not receive a copy of the New York
State defendants’ motion to dismiss. On
January 11, 2012, the Court mailed plaintiff
a copy of the pending motion to dismiss and
modified the briefing schedule to allow
plaintiff to serve a late opposition by
February 13, 2012, and for the New York
State defendants to reply by February 27,
2012.
Plaintiff has failed to file an
opposition to the New York State
defendants’ motion.5

After a warrant was issued and plaintiff was
apprehended, he waived his preliminary
hearing and a final hearing was held. (Id.)
At the final hearing plaintiff was found
guilty of Charge 1, failing to make his office
report at 250 Fulton Street, Hempstead, New
York, on June 22 2010 and thereafter, and
the remaining seven charges, including those
relating to Jennette, were withdrawn. (Pack
Affidavit, Ex. 4.) As a result, plaintiff was
found to be a persistent violator, his parole
was revoked, and he was sentenced to prison
until his maximum expiration date of
December 23, 2010.
(Id.)
This was
plaintiff’s third time violating his parole.
(Id.)
B.

Procedural History

On January 26, 2011, plaintiff filed his
Complaint in this action and a motion to
proceed in forma pauperis in the Southern
District of New York. On February 23,
2011, the case was transferred to the Eastern
District of New York, and assigned to Judge
Sandra J. Feuerstein. Plaintiff filed his first
Amended Complaint on March 11, 2011 and
subsequently filed a Second Amended
Complaint on March 16, 2011. The case
was reassigned to Judge Joseph F. Bianco on
March 30, 2011. By Order dated May 2,
2011, the Court granted plaintiff’s motion to
proceed in forma pauperis.
On June 9, 2011, the New York State
defendants filed a letter request for a premotion conference. On June 10, 2011, the
Court waived the pre-motion conference
requirement and set a briefing schedule
which required that the New York State
defendants’ motion be filed by July 15,
2011, plaintiff’s response by August 19,
2011, and the New York State defendants’
reply by August 31, 2011. The New York
State defendants filed their motion to
dismiss on July 12, 2011. Plaintiff failed to

5

Although plaintiff failed to file any opposition to
the New York State defendants’ motion, the Court
declines to grant the motion solely on the ground that
it is unopposed and, instead, has analyzed the merits
of plaintiff’s federal claim. For the reasons set forth
herein, the Court finds that plaintiff has failed to state
a claim against the New York State defendants under
Section 1983, and plaintiff’s federal claim against the
New York State defendants is therefore dismissed
with prejudice.
3

II.

STANDARD OF REVIEW

construe the [plaintiff's] pleadings . . .
liberally.” McCluskey v. New York State
Unified Ct. Sys., No. 10-CV-2144
(JFB)(ETB), 2010 WL 2558624, at *2
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008)); McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)). A pro se plaintiff's complaint, while
liberally interpreted, still must “‘state a
claim to relief that is plausible on its face.’”
Mancuso v. Hynes, 379 Fed. App’x 60, 61
(2d Cir. 2010) (citing Iqbal, 129 S.Ct. at
1949); see also Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009) (applying Twombly and
Iqbal to pro se complaint).

In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This
standard does not require “heightened fact
pleading of specifics, but only enough facts
to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570, 127
S.Ct. 1955.

The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom., Lentell v. Merrill Lynch
& Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935 (2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662, 129 S. Ct. 1937 (2009). The
Court instructed district courts to first
“identify[ ] pleadings that, because they are
no more than conclusions, are not entitled to
the assumption of truth.” 129 S.Ct. at 1950.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obligated to

4

of another State, or by Citizens or
Subjects of any Foreign State.

integral to plaintiffs’ claim.”); Brodeur v.
City of New York, No. 04 Civ. 1859 (JG),
2005 U.S. Dist. LEXIS 10865, at *9-10
(E.D.N.Y. May 13, 2005) (court could
consider documents within the public
domain on a Rule 12(b)(6) motion to
dismiss).
III.

U.S. Const. amend. XI. “The reach of the
Eleventh Amendment has . . . been
interpreted to extend beyond the terms of its
text to bar suits in federal courts against
states, by their own citizens or by foreign
sovereigns . . . .”
State Employees
Bargaining Agent Coalition v. Rowland, 494
F.3d 71, 95 (quoting Mohegan Tribe &
Nation v. Orange County, 395 F.3d 18, 20
(2d Cir. 2004)) (alterations in original).
Thus, absent a state’s consent to suit or an
express statutory waiver, the Eleventh
Amendment bars federal court claims
against states. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 66 (1989). Eleventh
Amendment immunity also extends to suits
against state officers in their official
capacities. See id. at 71 (“[A] suit against a
state official in his or her official capacity is
not a suit against the official but rather is a
suit against the official’s office. As such, it
is no different from a suit against the State
itself.”
(internal
citation
omitted));
McNamara v. Kaye, No. 06-CV-5169
(DLI)(CLP), 2008 WL 3836024, at *8
(E.D.N.Y. Aug. 13, 2008) (“[L]awsuits
against state officers acting [in] their official
capacity and lawsuits against state courts are
considered to be lawsuits against the
state.”).6

DISCUSSION

The New York State defendants allege
that plaintiff’s claims must be dismissed
against New York State and the Division of
Parole because they are entitled to Eleventh
Amendment immunity. The New York
State defendants also argue that the action
should be dismissed against Hubbard
because he is entitled to qualified immunity.
In the alternative, the New York State
defendants argue that plaintiff has failed to
adequately plead a claim upon which relief
may be granted. For the reasons set forth
below, this Court agrees and dismisses
plaintiff’s federal claims against the New
York State defendants with prejudice. The
Court also finds that plaintiff has failed to
state a federal claim against Jennette and
dismisses the federal claim against her sua
sponte. Moreover, because the Court has
dismissed plaintiff’s federal claims, it
declines
to
exercise
supplemental
jurisdiction over plaintiff’s state law claims
and dismisses plaintiff’s state laws claim
without prejudice.
A.

2.

Eleventh Amendment Immunity
1.

Application

Here, New York State and the Division
of Parole are entitled to immunity. New
York State has not waived its immunity and
there has been no statutory waiver. See,
e.g., Marmot v. Bd. of Regents, 367 F.

Applicable Law

The Eleventh Amendment to the United
States Constitution provides:
The Judicial power of the United
States shall not be construed to
extend to any suit in law or equity,
commenced or prosecuted against
one of the United States by Citizens

6

A narrow exception to this rule exists for officialcapacity suits against state officers seeking
prospective injunctive relief. See Will, 491 U.S. at 71
n.10. Even liberally construing plaintiff’s Second
Amended Complaint, there is no request for
prospective injunctive relief.
5

has also noted, “[t]his doctrine is said to be
justified in part by the risk that the ‘fear of
personal monetary liability and harassing
litigation will unduly inhibit officials in the
discharge of their duties.’” McClellan v.
Smith, 439 F.3d 137, 147 (2d Cir. 2006)
(quoting Thomas v. Roach, 165 F.3d 137,
142 (2d Cir. 1999)). Thus, qualified
immunity, just like absolute immunity, is not
merely a defense, but rather is also “an
entitlement not to stand trial or face the
other burdens of litigation.” Mitchell v.
Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806,
86 L.Ed.2d 411 (1985). Accordingly, the
availability of qualified immunity should
similarly be decided by a court “[a]t the
earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534,
116 L.Ed.2d 589 (1991).

App’x 191, 192 (2d Cir. 2010) (“It is wellestablished that New York has not consented
to § 1983 suits in federal court . . . .”).
Moreover, the Division of Parole is a state
agency entitled to Eleventh Amendment
immunity. See Chapman v. New York, No.
11-CV-1814 (ENV)(LB), 2011 WL
4244209, at *2 (E.D.N.Y Sept. 14, 2011)
(dismissing claims against New York and
New York State Division of Parole on
Eleventh Amendment immunity grounds)
(citing McCloud v. Jackson, 4 Fed. App’x 7,
10 (2d Cir. 2001)). Accordingly, New York
State and the Division of Parole are entitled
to Eleventh Amendment immunity, and the
claims against them must be dismissed.
Moreover, plaintiff’s Second Amended
Complaint does not indicate whether he is
suing Hubbard in her official or individual
capacity.
However, to the extent that
plaintiff is suing Hubbard in her official
capacity, the Second Amended Complaint
must be dismissed because Hubbard is also
entitled to Eleventh Amendment immunity.
See Will, 491 U.S. at 71.
B.
1.

Nonetheless, the Second Circuit has
emphasized that “a defendant presenting an
immunity defense on a Rule 12(b)(6) motion
instead of a motion for summary judgment
must accept the more stringent standard
applicable to this procedural route.”
McKenna v. Wright, 386 F.3d 432, 436 (2d
Cir. 2004); see also McCray v. City of New
York, Nos. 03-CV-9685, 03-CV-9974, 03CV-10080, 2007 WL 4352748, at *18, 2007
U.S. Dist. LEXIS 90875, at *66 (S.D.N.Y.
Dec. 11, 2007) (“A defendant asserting a
qualified immunity defense at the 12(b)(6)
stage . . . faces a formidable hurdle.
Because the evidence supporting a finding
of qualified immunity is normally adduced
during the discovery process and at trial, the
defense of qualified immunity [usually]
cannot support the grant of a Fed. R. Civ. P.
12(b)(6) motion for failure to state a claim
upon which relief can be granted.” (internal
citations and quotation marks omitted)). In
particular, the facts supporting the defense
must be clear from the face of the complaint.
In addition, in such situations, “plaintiff is
entitled to all reasonable inferences from the

Qualified Immunity
Applicable Law

Government actors may be shielded
from liability for civil damages by qualified
immunity, i.e., if their “conduct did not
violate plaintiff’s clearly established rights,
or if it would have been objectively
reasonable for the official to believe that his
conduct did not violate plaintiff’s rights.”
Mandell v. Cnty. of Suffolk, 316 F.3d 368,
385 (2d Cir. 2003); see also Fielding v.
Tollaksen, 257 F. App’x 400, 401 (2d Cir.
2007) (“The police officers, in turn, are
protected by qualified immunity if their
actions do not violate clearly established
law, or it was objectively reasonable for
them to believe that their actions did not
violate the law.”). As the Second Circuit
6

its laws; (2) by a person acting under the
color of state law. 42 U.S.C. § 1983.
“Section 1983 itself creates no substantive
rights; it provides only a procedure for
redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993).

facts alleged, not only those that support his
claim, but also those that defeat the
immunity defense.” Id.
2.

Application

In this case, despite the more stringent
standard on a motion to dismiss, Hubbard is
entitled to qualified immunity. Here, it was
objectively reasonable for Hubbard to
believe that her actions did not violate the
law.
See Mandell, 316 F.3d, at 385.
Construing plaintiff’s Second Amended
complaint liberally, plaintiff’s allegations
against Hubbard appear to be that she did
not investigate Jennette’s claims prior to
reporting the violations of his parole and
that because of Hubbard’s actions, plaintiff’s
parole was revoked. (See SAC at 4.) First,
all of the charges as they related to
Jennette’s claims were withdrawn. (Pack
Affidavit, Ex. 4.) Thus, the charges relating
to Jennette were not the basis for the
revocation of plaintiff’s parole. Moreover,
there is no allegation that Hubbard had any
reason to doubt the information provided by
Jennette. Therefore, it was objectively
reasonable for Hubbard to initiate the
charges that plaintiff violated his parole.
Accordingly, Hubbard is entitled to qualified
immunity.
C.

Plaintiff’s Second Amended Complaint
alleges that Hubbard did not research the
charges against plaintiff, and released
confidential information to Jennette. (SAC
at 4.) However, plaintiff’s Second Amended
Complaint is completely devoid of any
indication of what false charges were made
and what medical information was released.
Moreover, even construing plaintiff’s
allegations as true, plaintiff has not
indicated, and it is unclear, which “[r]ights,
privileges, or immunities secured by the
Constitution and its laws” were violated by
the New York State defendants.7
Accordingly, plaintiff has failed to set forth
a Section 1983 claim against the New York
State defendants.
2.

Jennette

To the extent plaintiff has alleged a
Section 1983 claim against Jennette, the
Court sua sponte dismisses plaintiff’s claim.

Failure to State a Section 1983 Claim

7

In the Pack Affidavit, Assistant Attorney General
Lori Pack argues that “[O]nly four of the eight
charges against the Plaintiff related to Margaret
Jennette, and those charges were dropped, so any
claim related to false arrest must fail as Plaintiff
would have been arrested on the parole warrant
regardless of whether the incidents relating to
Margaret Jennette were included.” (Pack Affidavit, ¶
6.) The Court agrees. Not only does the Court find
that plaintiff has not pleaded a cognizable claim for
false arrest, but, as discusses supra, the New York
State defendants are immune from suit. Accordingly,
to the extent plaintiff has pleaded a claim for false
arrest against the New York State defendants, that
claim must be dismissed.

The New York State defendants argue
that, even if they were not entitled to
immunity, plaintiff has still failed to allege a
claim pursuant to Section 1983. For the
reasons set forth below, this Court agrees.
1. New York State Defendants
To prevail on a claim under Section
1983, a plaintiff must show: (1) the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
7

Jennette, the Court sua sponte dismisses
plaintiff’s claim.

It is axiomatic that private citizens and
entities are not generally subject to Section
1983 liability.
To demonstrate that a
private party defendant was a state actor
engaged in a conspiracy with other state
actors under § 1983, a plaintiff must allege:
(1) an agreement between the private party
and state actors, (2) concerted acts to inflict
an unconstitutional injury, and (3) an overt
act in furtherance of the goal. See Carmody
v. City of New York, No. 05-CV-8084 (HB),
2006 WL 1283125, at *5 (S.D.N.Y. May 11,
2006) (citing Ciambriello, 292 F.3d at 32424). Vague and conclusory allegations that
defendants have engaged in a conspiracy to
violate plaintiff’s constitutional rights must
be dismissed. See Ciambriello, 292 F.3d at
325 (dismissing conspiracy allegations
where
they
were
found
“strictly
conclusory”); see also Walker v. Jastremski,
430 F.3d 560, 564 n.5 (2d Cir. 2005)
(“[C]onclusory or general allegations are
insufficient to state a claim for conspiracy
under § 1983.” (citing Ciambriello));
Sommer v. Dixon, 709 F.2d 173, 175 (2d
Cir. 1983) (“A complaint containing only
conclusory, vague, or general allegations of
conspiracy to deprive a person of
constitutional rights cannot withstand a
motion to dismiss.”); Green v. Bartek, No.
3:05-CV-1851, 2007 WL 4322780, at *3 (D.
Conn. Dec. 7, 2007) (“The Second Circuit
has consistently held that a claim of
conspiracy to violate civil rights requires
more than general allegations.”).

D. Common Law Defamation
Construing plaintiff’s Second Amended
Complaint liberally, plaintiff also presents a
state common law claim for defamation.
However, having determined that plaintiff’s
federal claims against the New York State
defendants do not survive the New York
State defendants’ motion to dismiss and
dismissing the Section 1983 claim against
Jennette sua sponte, the Court concludes
that retaining jurisdiction over any state law
claim is unwarranted.
28 U.S.C.
§ 1367(c)(3); see also United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966). “In the
interest of comity, the Second Circuit
instructs
that
‘absent
exceptional
circumstances,’ where federal claims can be
disposed of pursuant to Rule 12(b)(6) or
summary judgment grounds, courts should
‘abstain
from
exercising
pendent
jurisdiction.’” Birch v. Pioneer Credit
Recovery, Inc., No. 06-CV-6497T, 2007 WL
1703914, at *5 (W.D.N.Y. June 8, 2007)
aff’d, 551 F.3d 122 (2d Cir. 2008) (quoting
Walker v. Time Life Films, Inc., 784 F.2d 44,
53 (2d Cir. 1986)). Therefore, in the instant
case, the Court, in its discretion, “‘decline[s]
to exercise supplemental jurisdiction’” over
plaintiff’s state law claims because “it ‘has
dismissed all claims over which it has
original jurisdiction.’” See Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118, 122 (2d
Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3));
see also Cave v. E. Meadow Union Free
Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008)
(“We have already found that the district
court lacks subject matter jurisdiction over
appellants’ federal claims. It would thus be
clearly inappropriate for the district court to
retain jurisdiction over the state law claims
when there is no basis for supplemental
jurisdiction.”); Karmel v. Claiborne, Inc.,

Here, plaintiff has not alleged that
Jennette is a state actor. It is clear that
Jennette is a private citizen who customarily
would not be subject to liability under
Section 1983. Moreover, plaintiff has failed
to make any allegation that Jennette
conspired with state actors in order to
deprive plaintiff of his constitutional rights.
Accordingly, to the extent plaintiff has
alleged a Section 1983 claim against

8

Hayden v. Cnty. of Nassau, 180 F.3d 42, 53
(2d Cir. 1999) (holding that if a plaintiff
cannot demonstrate he is able to amend his
complaint “in a manner which would
survive dismissal, opportunity to replead is
rightfully denied”).

No. 99 Civ. 3608 (WK), 2002 WL 1561126,
at *4 (S.D.N.Y. July 15, 2002) (“Where a
court is reluctant to exercise supplemental
jurisdiction because of one of the reasons
put forth by § 1367(c), or when the interests
of judicial economy, convenience, comity
and fairness to litigants are not violated by
refusing to entertain matters of state law, it
should decline supplemental jurisdiction and
allow the plaintiff to decide whether or not
to pursue the matter in state court.”).
Accordingly, pursuant to 28 U.S.C.
§ 1367(c)(3), the Court declines to retain
jurisdiction over plaintiff’s remaining state
law claims for defamation given the absence
of any federal claims that survive the motion
to dismiss and dismisses any such claims
without prejudice.

Here, the Court has determined that the
New York State defendants are immune
from suit. Additionally, as Jennette is not a
state actor and there is no indication of a
plausible conspiracy claim, she cannot be
liable to plaintiff under Section 1983.
Accordingly, granting plaintiff leave to replead would be futile. Moreover, this is
plaintiff’s Second Amended Complaint and
he has still failed to allege a plausible
Section 1983 claim against the defendants.
In addition, plaintiff has been given multiple
opportunities to file an opposition to the
New York State defendants’ motion to
dismiss and he has failed to do so. Thus,
given that the New York State defendants
are immune from suit, Jennette is not a state
actor and plaintiff has failed on several
occasions to submit opposition to the New
York State defendants’ motion to dismiss,
leave to re-plead plaintiff’s Section 1983
claim is unwarranted.

IV. LEAVE TO REPLEAD
The Second Circuit has emphasized that
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave
to amend at least once when a
liberal reading of the complaint
gives any indication that a valid
claim might be stated.

VI. CONCLUSION
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a). However,
leave to re-plead can be denied where it is
clear that no amendments can cure the
pleading deficiencies and any attempt to
replead would be futile. See Cuoco, 222
F.3d at 112 (“The problem with [plaintiff’s]
cause[] of action is substantive; better
pleading will not cure it. Repleading would
thus be futile. Such a futile request to
replead should be denied.”); see also

For the foregoing reasons, the New York
State defendants’ motion to dismiss
plaintiff’s federal claim, pursuant to Rule
12(b)(6) of the Federal Rules of Civil
Procedure, is granted and plaintiff’s federal
claim is dismissed with prejudice.
In
addition, for the reasons stated supra, the
Court sua sponte dismisses the federal claim
against Jennette with prejudice. The Court
declines
to
exercise
supplemental
jurisdiction over the state law claims and
dismisses those claims without prejudice.
Therefore, the Second Amended Complaint
is dismissed in its entirety. The Clerk of the
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Court shall enter judgment accordingly and
close the case. The Court certifies, pursuant
to 28 U.S.C. § 1915 (a)(3), that any appeal
from this order would not be taken in good
faith; therefore, in forma pauperis status is
denied for purposes of an appeal. See
Coppedge v. United States, 369 U.S. 438,
444-45 (1962).

SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge

Dated:

March 6, 2012
Central Islip, NY
***

Plaintiff is representing himself pro se.
Defendants New York State, New York
Division of Parole and Parole Officer
Hubbard are being represented by Lori L.
Pack of the office of the New York State
Attorney General, 300 Motor Parkway,
Suite 205, Hauppauge, NY 11788.

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