Fennelly v. City of Troy et al

Filing 8

ORDER adopting Report and Recommendations re 7 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks' Report-Recommendation and Order (Dkt. No. 7) is ADOPTED in its entirety for the reasons set forth herein; and t he Court further ORDERS that Plaintiff's complaint against Defendant New York State is DISMISSED with prejudice; and the Court further ORDERS that Plaintiff's complaint against Defendants City of Troy and County of Rensselaer (Dkt. No. 1) is DISMISSED without prejudice, with leave to file an amended complaint within thirty (30) days of the date of this Order; and the Court further ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of this Order, the Clerk of the Court shall enter judgment in Defendants' favor and close this case, without further order of this Court; and the Court further ORDERS that the Clerk of the Court serve a copy of this Order upon Plaintiff in accordance with Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 06/04/2024. (Copy served via regular and certified mail upon plaintiff)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DONALD R. FENNELLY,
Plaintiff,
vs.

1:24-CV-172
(MAD/TWD)

CITY OF TROY, NEW YORK STATE,
and COUNTY of RENSSELAER,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

DONALD R. FENNELLY
579 4th Street
Troy, New York 12180
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
On February 5, 2024, Plaintiff Donald R. Fennelly commenced this action, pro se, against
Defendants City of Troy, New York State, and County of Rensselaer. See Dkt. No. 1. Plaintiff
alleges that Defendants violated his constitutional rights through various family court
proceedings. See id. Plaintiff also submitted an application to proceed in forma pauperis ("IFP"),
see Dkt. No. 2, a motion to appoint counsel, see Dkt. No. 4, and a motion for permission to file
electronically. See Dkt. No. 5.
On May 10, 2024, Magistrate Judge Therese Wiley Dancks issued a ReportRecommendation and Order granting Plaintiff's IFP motion, recommending that Plaintiff's
complaint be dismissed, and denying Plaintiff's request for counsel and to file electronically. See
Dkt. No. 7.

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Plaintiff did not file any objections to the Report-Recommendation and Order. When a
party declines to file objections to a magistrate judge's report-recommendation, the district court
reviews the report-recommendation for clear error. See Hamilton v. Colvin, 8 F. Supp. 3d 232,
236 (N.D.N.Y. 2013). After the appropriate review, "the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(1).
As Plaintiff is proceeding pro se, the Court must review his complaint under a more
lenient standard. See Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003). The Court
must "make reasonable allowances to protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983). Thus, "a document filed pro se is 'to be liberally construed,' and '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 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). "Although the court has the duty to show liberality towards pro se litigants, . . .
there is a responsibility on the court to determine that a claim has some arguable basis in law
before permitting a plaintiff to proceed with an action in forma pauperis." Moreman v. Douglas,
848 F. Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted).
Having reviewed the May 10, 2024, Report-Recommendation and Order, Plaintiff's
complaint, and the applicable law, the Court does not discern any clear error in Magistrate Judge
Dancks' recommendation to dismiss Plaintiff's complaint. Magistrate Judge Dancks correctly
determined that New York State is immune from liability under the Eleventh Amendment. See
Dkt. No. 7 at 7; see also Woods v. Rondout Valley Cent. Sch. Dist. Bd of Educ., 466 F.3d 232, 236
(2d Cir. 2006) (citation omitted) ("[A]s a general rule, state governments may not be sued in

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federal court unless they have waived their Eleventh Amendment immunity"). Additionally,
Plaintiff failed to set forth cognizable claims against the municipal Defendants: the City of Troy
and County of Rensselaer. See Dkt. No. 7 at 7-9; see also Arnold v. Town of Camillus, New York,
662 F. Supp. 3d 245, 259 (N.D.N.Y. 2023). The Court also agrees with Magistrate Judge Dancks
that Plaintiff's complaint does not comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. See Dkt. No. 7 at 8-9. Rules 8 and 10 require, among other things, a complaint to
contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and
"numbered paragraphs, each limited as far as practicable to a single set of circumstances." FED.
R. CIV. P. 8(a)(2), 10(b). Plaintiff's complaint contains neither; rather, his filing lists
constitutional amendments, broadly asserts violations of oaths, ethical codes, and constitutional
rights, and attaches a document addressed to the New York State Judicial Conduct Board
concerning family court proceedings. See Dkt. No. 1. This is insufficient to meet the necessary
pleading requirements.
As recommended by Magistrate Judge Dancks, and in light of Plaintiff's pro se status, the
Court will afford Plaintiff an opportunity to amend his complaint as to the claims against the City
of Troy and County of Rensselaer. See Dkt. No. 7 at 10. However, any claims against New York
State must be dismissed with prejudice and without leave to amend based on the state's immunity.
See Sitts v. New York State, et al., No. 3:20-CV-1476, 2021 WL 1910843, *6 (N.D.N.Y. Jan. 7,
2021).
If Plaintiff decides to amend his complaint, he must clearly set forth the facts that give rise
to the claim, including, when possible, the dates, times, and places of the alleged underlying acts,
as well as each individual who committed each alleged wrongful act. The revised pleading
should allege facts demonstrating the personal involvement of any named Defendant. See Wright

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v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Finally, Plaintiff is informed that any amended
complaint will replace the existing complaint and must be a wholly integrated and complete
pleading that does not rely upon or incorporate by reference any pleading or document previously
filed with the Court. See Jeanty v. Sciortino, No. 6:22-CV-319, 2023 WL 2931863, *14
(N.D.N.Y. Apr. 13, 2023).1
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Report-Recommendation and Order (Dkt. No. 7)
is ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's complaint against Defendant New York State is DISMISSED
with prejudice; and the Court further
ORDERS that Plaintiff's complaint against Defendants City of Troy and County of
Rensselaer (Dkt. No. 1) is DISMISSED without prejudice, with leave to file an amended
complaint within thirty (30) days of the date of this Order; and the Court further
ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of
this Order, the Clerk of the Court shall enter judgment in Defendants' favor and close this case,
without further order of this Court; and the Court further
ORDERS that the Clerk of the Court serve a copy of this Order upon Plaintiff in
accordance with Local Rules.
IT IS SO ORDERED.
Dated: June 4, 2024
Albany, New York

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The Court directs Plaintiff to the instructions outlined in Magistrate Judge Dancks' ReportRecommendation and Order. See Dkt. No. 7 at 10.
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