Barber v. State of New York

Filing 4

REPORT AND RECOMMENDATIONS& ORDER: as to Tracy Barber. It is Ordered that the # 2 MOTION for Leave to Proceed in forma pauperis is GRANTED. It is Recommended that pursuant to the Court's review under 28 USC § 1915, the # 1 Complaint be DISMISSED for failure to comply with the pleadings standards, naming a defendant protected by sovereign immunity, and relying on statutes which do not confer a private right of action. (Objections to R&R due by 8/25/2014, Case Review Deadline 8/29/2014) Signed by Magistrate Judge Christian F. Hummel on 8/8/2014. (Attachments: # 1 Exhibit A - Unpublished Caselaw) {Copy served upon pro se plaintiff by regular mail} (jmb)

Qader v. Cohen & Slamowitz, Not Reported in F.Supp.2d (2011)

2011 WL 102752
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Rose Marie QADER, Plaintiff,
v.
COHEN & SLAMOWITZ, Jeffrey F. Cohen, Carlos
Colon, New York State Consumer Protection Board,
New York Lawyers' Fund for Client Protection,
and Bronx County Bar Association, Defendants.
No. 10 CV 01664 GBD.

|

Jan. 10, 2011.

Opinion
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, District Judge.
*1 Plaintiff Rose Marie Qader, proceeding pro se, brings
this suit arising from an allegedly improper garnishment of
a bank or trust account in which she has an interest. It is
difficult to discern Plaintiffs allegations and claims from
her substantially incoherent and unintelligible Complaint. It
appears that Plaintiff alleges the following: (a) Defendant
law firm Cohen & Slamowitz, LLP, and Defendant Jeffrey
F. Cohen fraudulently obtained a default judgment against
Plaintiff and then fraudulently garnished Plaintiff's account
with the help of Defendant Carlos Colon, an employee of
Banco Popular, in the amount of “$41,900.37 + $6,000”; and
(b) Plaintiff reported the alleged misconduct to Defendants
the New York State Consumer Protection Board and the
New York Lawyers' Fund for Client Protection (collectively,
the “State Defendants”) and Defendant Bronx County Bar
Association (“Bronx Bar”), but these Defendants neither
investigated her complaints nor prosecuted Cohen and Cohen
& Slamowitz.
As a result of the aforementioned events, it appears that
Plaintiff asserts claims for violations of various state and
federal laws. Plaintiff asserts claims against Cohen, Colon,
and Cohen & Slamowitz for: (1) violation of the “right to all
citizens to federal court access to file a civil action” pursuant
to 28 U.S.C. § 1331; (2) “right to federal court access for
relief from systematic violations of civil and constitutional
rights occurring under color of state law and under color of
federal law” pursuant to 42 U.S.C. § 1983–1988; (3) perjury;

(4) racketeering in violation of state and federal law; and (5)
violation of the Privacy of Consumer Financial Information
regulations, 12 C.F.R. 40.1 et. seq . Plaintiff asserts claims
against the State Defendants and the Bronx Bar for: (1)
violation of the Seventh Amendment pursuant to 42 U.S.C.
§ 1983; (2) violation of “Fifth Amendment due process and
equal protection; and (3) “right to federal court access for
relief from systematic violations of civil and constitutional
rights occurring under color of state law and under color of
federal law” pursuant to 42 U.S.C. § 1983–1988.
Pending before this Court are five motions: 1 (1) Plaintiff
moves to amend the Complaint; (2) Defendant Cohen
moves to dismiss Plaintiff's claims against him pursuant to
Fed.R.Civ.P. 12(b)(5) for insufficient service of process and
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim
upon which relief can be granted; (3) Defendants the New
York State Consumer Protection Board and the New York
Lawyers' Fund for Client Protection similarly move to dismiss
Plaintiff's claims against them, and additionally pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction;
and (4) Defendant Bronx County Bar Association's (“Bronx
Bar”) moves to dismiss Plaintiff's claims against it solely
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

STANDARDS OF REVIEW
A. 12(b)(1) Motion
*2 “[A] claim is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir.2008). “A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence
that it exists.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir.2000); see also Whitmore v. Arkansas, 495 U.S.
149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (“It is
well established ... that before a federal court can consider
the merits of a legal claim, the person seeking to invoke the
jurisdiction of the court must establish the requisite standing
to sue.”). “[T]he court must take all facts alleged in the
complaint as true and draw all reasonable inferences in favor
of plaintiff.” NRDC v. Johnson, 461 F.3d 164, 171 (2d
Cir.2006); see also Warth v. Seldin, 422 U.S. 490, 95 S.Ct.
2197, 45 L.Ed.2d 343. 501 (1975).

B. 12(b)(5) Motion

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Qader v. Cohen & Slamowitz, Not Reported in F.Supp.2d (2011)

“Before a federal court may exercise personal jurisdiction
over a defendant, the procedural requirement of service
of summons must be satisfied.” Dynegy Midstream Servs.
v. Trammochem, 451 F.3d 89, 94 (2d Cir.2006) (internal
quotation marks and citation omitted); see Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94–95, 118 S.Ct.
1003, 140 L.Ed.2d 210 (1998) (“The requirement that
jurisdiction be established as a threshold matter spring[s]
from the nature and limits of the judicial power of the United
States and is inflexible and without exception.”) (internal
quotation marks and citation omitted). “[T]he plaintiff bears
the burden of proving adequate service.” Burda Media, Inc.
v. Viertel, 417 F.3d 292, 298–99 (2d Cir.2005) (citation
omitted). The plaintiff must, “through specific factual
allegations and any supporting materials, make a prima
facie showing that service was proper.” Kwon v. Yun, 2006
U.S. Dist. LEXIS 7386, at *6, 2006 WL 416375 (S.D.N.Y.
Feb. 21, 2006) (collecting cases). “Conclusory statements
are insufficient to overcome a defendant's sworn affidavit
that he was not served.” Darden v. DaimlerChrysler N.
Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y.2002)
(citing Howard v. Klynveld Peat Marwick Goerdeler, 977
F.Supp. 654, 658 (S.D.N.Y.1997), aff'd, 173 F.3d 844 (2d
Cir.1999)). Also, the court “must look to matters outside the
complaint to determine whether it has jurisdiction.” Id. at 387.

C. 12(b)(6) Motion
“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,
––– U.S. ––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This
standard is met “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. A court
should not dismiss a complaint for failure to state a claim
if the factual allegations sufficiently “raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. “[A]
pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976))
(internal quotation marks omitted).
*3 The task of the court in ruling on a motion to dismiss
is to “assess the legal feasibility of the complaint, not to
assay the weight of the evidence which might be offered

in support thereof.” In re Initial Pub. Offering Sec. Litig.,
383 F.Supp.2d 566, 574 (S.D.N.Y.2005) (internal quotation
marks and citation omitted). The court must accept all wellpleaded factual allegations in the complaint as true, and draw
all reasonable inferences in the plaintiff's favor. Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). In
deciding a motion to dismiss, the Court is not limited to the
face of the complaint. The Court “may [also] consider any
written instrument attached to the complaint, statements or
documents incorporated into the complaint by reference, and
documents possessed by or known to the plaintiff and upon
which it relied in bringing the suit.” ATSI Commc'ns v. Shaar
Fund. Ltd., 493 F.3d 87, 98 (2d Cir.2007).

STATE DEFENDANTS' 12(b)(1) MOTION
Pursuant to the Eleventh Amendment, states are entitled
to sovereign immunity and may not be sued without their
consent. See Permhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
A state agency with state officials acting in their official
capacities is similarly entitled to immunity. See Papasan v.
Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)
(noting that a suit “in which the State or one of its agencies
or departments is named as the defendant is proscribed by
the Eleventh Amendment”); see also Scherman v. N.Y. State
Banking Dep't, 2010 U.S. Dist. LEXIS 26288, at *15, 2010
WL 997378 (S.D.N.Y. Mar. 19, 2010) (noting that “for
Eleventh Amendment purposes, governmental entities of the
state that are considered ‘arms of the state’ receive Eleventh
Amendment immunity”) (citations omitted); see also Posr v.
Court Officer Shield # 207, 180 F.3d 409 (2d Cir.1999). There
are only two recognized exceptions in which an individual
may sue a state or state agency: when either (1) Congress
authorizes such a suit in the exercise of its power to enforce
the Fourteenth Amendment or (2) a state waives its sovereign
immunity by consenting to suit. See Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).
The State Defendants are entitled to sovereign immunity.
Each is a state agency that was acting in its official capacity
with respect to the events alleged by Plaintiff. None of the
exceptions apply. Plaintiff has not identified a statute wherein
Congress abrogates the traditional sovereign immunity of
states with respect to suits brought under 2 42 U.S.C. §
1983, 3 42 U.S.C. § 1985, 4 or 42 U.S.C. § 1986. 5 Plaintiff
has also not identified a statute wherein the state of New York

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Qader v. Cohen & Slamowitz, Not Reported in F.Supp.2d (2011)

expressly waives its immunity from suits under any of the
6

aforementioned statutes. See Mamot v. Bd. of Regents, 367
Fed. Appx. 191, 192 (2d Cir.2010) (“It is well-established
that New York has not consented to § 1983 suits in federal
court ....”) (citing Trotman v. Palisades Interstate Park
Comm'n, 557 F.2d 35, 38–40 (2d Cir.1977)); Finkelman v.
New York State Police, 2007 U.S. Dist. LEXIS 74986, at
*7–8 (S.D.N .Y. Aug. 20, 2007) (citing for §§ 1985–1986,
Gasparik v. Stony Brook University, 2007 U.S. Dist. LEXIS
49471, 2007 WL 2026612 (E.D.N.Y. July 9, 2007); Quirk v.
City of New York, 2003 U.S. Dist. LEXIS 6063, 2003 WL
1872714 (S.D.N.Y. Apr. 10, 2003)). Accordingly, the State
Defendants are immune from liability.

regardless of whether the plaintiff is proceeding pro se or with
counsel.”); King v. Rivera, 1999 U.S. Dist. LEXIS 1514, at
*3 n. 1, 1999 WL 76831 (S.D.N.Y. Feb. 16, 1999) (“Unless
a defendant waives service of a summons, service by mail
(or certified mail) is insufficient.”) (citing Fed.R.Civ.P. 4;
N.Y. C.P.L.R. §§ 308, 311); see, e.g., Bender v. GSA, 539
F.Supp.2d 702 (S.D.N.Y.2008); Brown v. Avstreih, 1997
U.S. Dist. LEXIS 2025 (S.D.N.Y. Feb. 25, 1997); Schafer v.
Wadman, 1992 U.S. Dist. LEXIS 17538, 1992 WL 350750
(S.D.N.Y.1992); Klein v. Educational Loan Serv., 71 A.D.3d
957, 897 N.Y.S.2d 220, 221–22 (App.Div.2010). Therefore,
Plaintiff has failed to satisfy her burden to demonstrate proper
service of process.
Accordingly, Plaintiff failed to properly serve Defendant
Cohen, and thus Defendant's motion to dismiss for

DEFENDANT COHEN'S 12(b)(5) MOTION
*4 Fed.R.Civ.P. 4(3) provides that personal service may be
effected on an individual by: (1) “delivering a copy of the
summons and of the complaint to the individual personally”;
(2) “leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and
discretion who resides there”; or (3) “delivering a copy of
each to an agent authorized by appointment or by law to
receive service of process.” Fed.R.Civ.P. 4(3) also provides
that service is proper if in compliance with the law of the
forum state. Here, in New York, N.Y. C.P.L.R. §§ 308 and
312–a enumerate several methods of service over a natural
person consistent with proper notice and procedural due
process.
Based upon the affirmation of service filed by Plaintiff on
February 8, 2010, Plaintiff mailed a copy of the Summons
and Complaint via certified mail to Jeffrey F. Cohen. See
Docket # 5, pg. 20. Defendant Cohen, who never waived
service, acknowledges receipt of those documents, but alleges
that “Plaintiff never attempted to deliver the Summons or
Complaint to Mr. Cohen's home or office.” Affidavit of
Diane K. Kanca ¶ 9. Plaintiff neither makes any factual
allegations nor offers any supporting evidence to demonstrate
that she took additional efforts to effect service of process
on Defendant. There also have not been any court orders
providing for service of process by an alternative method.
Service solely by certified mail is insufficient under both New
York and federal law. See Underwood v. Shukat, 2002 U.S.
Dist. LEXIS 10778, at *, 2002 WL 1315597S–9 (S.D.N.Y.
June 14, 2002) (“New York's C.P.L.R. § 308 does not provide
exclusively for mailing as a proper method of service—

insufficient service of process is thus granted. 7 It is
unnecessary to consider the merits. See Arrowsmith v. United
Press Int'l, 320 F.2d 219, 221 (2d Cir.1963) (en banc)
(“[L]ogic compel[s] initial consideration of the issue of
jurisdiction .... [A] court without such jurisdiction lacks
power to dismiss a complaint for failure to state a claim.”).
Nevertheless, Defendant's motion to dismiss for failure to
state a claim is, for the reasons stated below, also granted.

DEFENDANT COHEN'S AND DEFENDANT
BRONX BAR'S 12(b)(6) MOTIONS
*5 Federal law does not authorize a private cause of
action for some of Plaintiff's claims. 28 U.S.C. § 1331 is
a jurisdictional statute and does not itself provide for a
substantive basis for relief. 42 U .S.C. § 1984 no longer exists.
See United States v. Singleton, 109 U.S. 3, 3 S.Ct. 18, 27
L.Ed. 835 (1883) (overturning part of the statute); see also
Act of June 25, 1948, ch 645, § 21, 62 Stat. 862 (repealing the
remaining sections). Neither 42 U.S.C. § 1987 nor 42 U.S.C.
§ 1988 creates a private cause of action. See Moor v. County
of Alameda, 411 U.S. 693, 702, 93 S.Ct. 1785, 36 L.Ed.2d 596
(1973) (section 1988); Carpenter v. Ashby, 2009 U.S.App.
LEXIS 20265, at *9, 2009 WL 2893198 (3d Cir. Sept. 10,
2009) (section 1987); Seneca Constitutional Rights Org. v.
George, 348 F.Supp. 51. 54 n. 1 (W.D.N.Y.1972) ( section
1987). The perjury claim, 18 U.S.C. § 1621, which is based
upon a criminal statute, is enforceable only by the United
States Department of Justice, not by private individuals. See,
e.g., Luckett v. Bure, 290 F.3d 493, 497 (2d Cir.2002) (“We
affirm the district court's dismissal of [Plaintiff's] claims of
sabotage, forgery, and perjury, which are crimes and therefore

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Qader v. Cohen & Slamowitz, Not Reported in F.Supp.2d (2011)

do not give rise to civil causes of action.”); Sanchez v.
Dankert, 2002 U.S. Dist. LEXIS 3660, at *31–32, 2002
WL 529503 (S.D.N .Y. Feb. 22, 2002) (collecting district
court cases on perjury). Finally, Plaintiff has not identified
a legal basis for allowing a private cause of action under
the regulations governing the Privacy of Consumer Financial
Information for Banks and Banking, 12 C.F.R. 40.1 et. seq.
Accordingly, Plaintiffs claims pursuant to the aforementioned
statutes fail as a matter of law.
Plaintiff has failed to plead the requisite elements for the
remaining claims. First and foremost, Plaintiff's Complaint
is devoid of factual allegations regarding the wrongdoing of
the Defendants. This failure is sufficient grounds to dismiss
the Complaint as to all of the Defendants. See Twombly,
550 U.S. at 555 (“a complaint must contain enough factual
allegations “to raise a right to relief above the speculative
level”). Nevertheless, after liberally construing the Complaint
given that Plaintiff is proceeding pro se, Plaintiff's allegations
cannot sustain any of the remaining claims.
With respect to the claims pursuant to 42 U.S.C. § 1983,
a plaintiff must allege two essential elements: (1) “[t]he
conduct complained of must have been committed by a person
acting under color of state law,” Pitchell v. Callan, 13 F.3d
545, 547 (2d Cir.1994) (citing Parratt v. Taylor, 451 U.S.
527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)); and (2)
“the conduct complained of must have deprived a person of
rights, privileges or immunities secured by the Constitution
or laws of the United States.” Id.
Here, none of the conduct discernible from Plaintiff's
Complaint constitutes a redressable federal constitutional
violation. The claims are also deficient because none of the
remaining Defendants are state actors. Cohen and Colon are
individuals. The Bronx Bar and Cohen & Slamowitz are
private entities, not city, state, or federal agencies. Plaintiff
never alleges that any of the Defendants acted “under color of
law,” as is required to hold private persons liable. See United
States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d
267 (1966). Thus, the claims pursuant to 42 U.S.C. § 1983
must be dismissed. See Lugar v. Edmondson Oil Co., 457 U.S.
922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (“Careful
adherence to the ‘state action’ requirement preserves an area
of individual freedom by limiting the reach of federal law and
federal judicial power.”).
*6 With respect to the claim pursuant to 42 U.S.C. § 1985,
“a plaintiff must allege (1) a conspiracy (2) for the purpose of

depriving a person or class of persons of the equal protection
of the laws, or the equal privileges and immunities under the
laws; (3) an overt act in furtherance of the conspiracy; and (4)
an injury to the plaintiffs person or property, or a deprivation
of a right or privilege of a citizen of the United States.”
Traggis v. St. Barbara's Greek Orthodox Church, 851 F.2d
584, 586–587 (2d Cir.1988) (citing Griffin v. Breckenridge,
403 U.S. 88, 102–03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1970)).
Once again, none of the conduct discernible from Plaintiff's
Complaint constitutes a redressable federal constitutional
violation. The claim is also deficient because the Complaint
is devoid of any factual allegations regarding a conspiracy
perpetrated by any of the Defendants. Plaintiff provides only
unsupported conclusory allegations that a conspiracy existed,
which are insufficient. See 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.”). Plaintiff also never makes any factual allegations
that the alleged conspiracy was “motivated by some racial
or perhaps otherwise class-based, invidious discriminatory
animus behind the conspirators' action.” Cine SK8, Inc. v.
Town of Henrietta, 507 F.3d 778, 791 (2d Cir.2007) (citation
and internal quotation marks omitted). A conspiracy due
simply to personal malice of the conspirators is insufficient to
sustain a claim pursuant to 42 U.S.C. § 1985. See United Bhd.
of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S.
825, 850, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (“[T]he
intended victims must be victims not because of any personal
malice the conspirators have toward them, but because of
their membership in or affiliation with a particular class.”).
Therefore, the claim must be dismissed.
With respect to the claim pursuant to 42 U.S.C. § 1986, a
plaintiff must first allege a valid § 1985 claim. See Mian, 7
F.3d at 1088; see, e.g., Graham v. Henderson, 89 F.3d 75,
82 (2d Cir.1996); Gagliardi v. Village of Pawling, 18 F.3d
188, 194 (2d Cir.1994). Having failed to set forth a cognizable
predicate claim, Plaintiffs § 1986 claim necessarily fails as to
all of the remaining Defendants.
Finally, with respect to the federal racketeering claim, “[a
plaintiff] must allege that the defendant has violated the
substantive RICO statute, 18 U.S.C. § 1962 (1976) ...:(1)
that the defendant (2) through the commission of two or
more acts (3) constituting a ‘pattern’ (4) of ‘racketeering
activity’ (5) directly or indirectly invests in, or maintains
an interest in, or participates in (6) an ‘enterprise’ (7) the

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Qader v. Cohen & Slamowitz, Not Reported in F.Supp.2d (2011)

activities of which affect interstate or foreign commerce.”
Moss v. Morgan Stanley, Inc., 719 F.2d 5. 17 (2d Cir.1983)
(citing 18 U.S.C. § 1962(a)-(c) (1976)). Then a plaintiff “must
allege that he was ‘injured in his business or property by
reason of a violation of section 1962.’ ” Id.; see also 18 U.S.C.
§ 1964(c) (1976).
*7 Here, the Complaint contains no factual allegations
indicating the existence of a legal entity or association in fact,
see 18 U .S.C. § 1961(4), in which Defendants Cohen, Cohen
& Slamowitz, and Colon participated. The Complaint does
not identify or even allege conduct suggesting the occurrence
of—at least two acts indictable under a variety of state
and federal criminal statutes. See 18 U.S.C. § 1961(1), (5).
Furthermore, the Complaint provides no basis to infer that
Defendants' alleged misconduct had even a minimal effect on
interstate commerce. See DeFalco v. Bernas, 244 F.3d 286,
309 (2d Cir.2001); United States v. Barton, 647 F.2d 224, 233
(2d Cir.1981). All of the parties appear to be located in New
York, and all of the events seem to have transpired in New
York. Therefore, Plaintiff has failed to satisfy her burden. The
federal racketeering claim must be dismissed.

Accordingly, Plaintiff has failed to state a federal cause
of action. This Court declines to exercise supplemental
jurisdiction over Plaintiff's state claim for racketeering, and
thus that claim is also dismissed. See United Mine Workers
v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966) (“Certainly, if the federal claims are dismissed before
trial ... the state claims should be dismissed as well.”); see
also 28 U.S.C. § 1367(a), (c) (“The district courts may decline
to exercise supplemental jurisdiction over a claim ... if ...
the district court has dismissed all claims over which it has
original jurisdiction.”).

CONCLUSION
Defendants' motion to dismiss is GRANTED. Plaintiff's
Complaint is hereby DISMISSED as to all Defendants. 8
SO ORDERED.

Footnotes

1
2
3
4

5
6
7
8

To date, neither Cohen & Slamowitz nor Colon have appeared in this action. Based upon the Affirmation of Service filed by Plaintiff,
see Docket # 5, Plaintiff mailed a copy of the Summons and Complaint via certified mail on March 8, 2010. This method of service
is insufficient in the instant action. See discussion of Cohen's 12(b)(5) motion.
The provisions under which Plaintiff seeks relief that do not provide for a private cause of action—namely, 42 U.S.C. § 1984 and 42
U.S.C. §§ 1987–1988 are not addressed. See, infra, discussion of 12(b)(6) motions.
See Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (section 1983).
See Ding v. Bendo, 2006 U.S. Dist. LEXIS 24339, at *11 n. 1, 2006 WL 752824 (E.D.N.Y. Mar. 23, 2006) (“[I]t is well-settled that
a State and its instrumentalities are not ‘persons' subject to suit under § 1983. Spencer v. Doe, 139 F.3d 107, 111 (2d Cir.1998), and
there is no reason to suspect the Congress intended the term ‘persons' to take on a different meaning in § 1985.”); Degrafinreid v.
Ricks, 2004 U.S. Dist. LEXIS 24448, at *15, 2004 WL 2793168 (S.D.N.Y. Dec. 6, 2004) (citing Fincher v. State of Florida Dep't
of Labor & Employment Sec., 798 F.2d 1371, 1371 (11th Cir.1986) (“We find no express congressional abrogation of the state's
Eleventh Amendment immunity with respect to 42 U.S.C. § 1985 actions.”)).
Cf. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993) (“a § 1986 claim must be predicated upon
a valid § 1985 claim”).
See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
Plaintiff's Affirmations of Service, see Docket # 4 and 5, indicate that Plaintiff relied solely upon certified mail as a method of service
for all of the Defendants. To the extent that Plaintiff either did not take any additional efforts to effect service or did not have consent,
all of the Defendants were insufficiently served. This is sufficient grounds alone to dismiss the Complaint as to all of the Defendants.
Plaintiff's motion for leave to file an amended complaint (Docket Entry # 14) is denied as futile. Plaintiff's motion for summary
judgment (Docket Entry # 16) is denied.

End of Document

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