Brooks v. Albany Stratton Veterans Hospital et al

Filing 5

ORDER and REPORT-RECOMMENDATION: IT IS ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2 ) is GRANTED; and it is further respectfully RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1 ) be DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO REPLEAD pursuant to 28 U.S.C. § 1915(e)(2)(B) (Objections to R&R due by 1/21/2025; Case Review Deadline 1/24/2025). Signed by Magistrate Judge Miroslav Lovric on 1/7/2025. (Copy served via regular mail)(ztc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JAMES ANTHONY BROOKS,
Plaintiff,
1:24-CV-0970
(AMN/ML)

v.
ALBANY STRATTON VETERANS HOSP.,
Chief Administrator; ALBANY STRATTON
VETERANS HOSP. EMERGENCY ROOM;
and DR. JENNIFER KEIFFER, Primary Care
Blue Team, Albany Stratton Veterans Hosp.,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

JAMES ANTHONY BROOKS
Plaintiff, Pro Se
203 Sheridan Avenue, Apartment 2
Albany, New York 12210
MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent a complaint in the above captioned action together with an application
to proceed in forma pauperis, filed by James Anthony Brooks (“Plaintiff”) to the Court for
review. (Dkt. Nos. 1, 2.) For the reasons discussed below, I (1) grant Plaintiff’s in forma
pauperis application (Dkt. No. 2), and (2) recommend that Plaintiff’s Complaint (Dkt. No. 1) be
dismissed with leave to amend.

I.

INTRODUCTION
Construed as liberally1 as possible, Plaintiff’s Complaint alleges that he received

insufficient care provided by defendants Albany Stratton Veterans Hospital (“ASVH”), Albany
Stratton Veterans Hospital Emergency Room (“ASVH ER”), and Dr. Jennifer Keiffer
(collectively “Defendants”). (See generally Dkt. No. 1.)
The Complaint alleges that on October 13, 2021, Plaintiff arrived at Defendant ASVH
ER seeking treatment for chronic back pain from an injury that he sustained while on active duty.
(Dkt. No. 1, Attach. 1 at 1.) The Complaint alleges that on October 13, 2021, the emergency
room doctor prescribed three injections, two of which Plaintiff had received previously. (Id.)
The Complaint alleges that after Plaintiff received the injections, he received his discharge
paperwork and was not told to wait for ten to fifteen minutes (as he had previously been told
when receiving two of the injections). (Dkt. No. 1, Attach. 1 at 3.) Plaintiff alleges that he stood
up, put on his coat, and took three steps then blacked out and fell to the floor. (Id.) Plaintiff
alleges that Defendant ASVH ER staff put him on a stretcher, where he remained for at least
thirty minutes before his family arrived to bring him home. (Id.)
Plaintiff alleges that between October 13, 2021, and March 2022, Plaintiff went back to
Defendant ASVH ER and other emergency rooms in the Albany area over twenty-two times.
(Id.) Plaintiff appears to allege that his primary care doctor, Defendant Keiffer, was slow to
order any tests but that when X-rays and MRIs were taken, it was revealed that Plaintiff had
broken a spinal fusion that he received in April 2011. (Dkt. No. 1 at 4; Dkt. No. 1, Attach. 1 at
3.) Plaintiff alleges that surgery to address his injury has been rescheduled due to other health
1

The court must interpret pro se complaints to raise the strongest arguments they suggest.
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
2

conditions, and thus, the matter is ongoing. (Id.) Plaintiff alleges that he is “at a 10 pain level
24/7.” (Id.) Plaintiff alleges that Defendant Keiffer’s medical report stating that Plaintiff suffers
opioid abuse was slander. (Dkt. No. 1, Attach. 1 at 4.)
Based on these factual allegations, Plaintiff appears to assert the following two claims:
(1) a claim of negligence pursuant to the Federal Tort Claims Act (“FTCA”); and (2) a claim of
medical malpractice pursuant to the FTCA. (Dkt. No. 1, Attach. 1 at 2.) As relief, Plaintiff
seeks damages in the amount of $150,000.00. (Dkt. No. 1 at 4; Dkt. No. 1, Attach. 1 at 1.)
Plaintiff also seeks leave to proceed in forma pauperis. (Dkt. No. 2.)
II.

PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the
standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s in
forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard.
Therefore, Plaintiff’s application to proceed in forma pauperis is granted.3

2

The language of that section is ambiguous because it suggests an intent to limit
availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1)
(authorizing the commencement of an action without prepayment of fees “by a person who
submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts
have construed that section, however, as making in forma pauperis status available to any litigant
who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed.
Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
3

Plaintiff is reminded that, although his application to proceed in forma pauperis has been
granted, he is still required to pay fees that he may incur in this action, including copying and/or
witness fees.
3

III.

LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In determining whether an action is frivolous, the court must consider whether the
complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well
as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge,
505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221
F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even
when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant,
Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016)
(Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories
of the plaintiff’s retaliation claim sua sponte because those theories were so lacking in arguable
merit as to be frivolous).
“In reviewing a complaint . . . the court must accept the material facts alleged in the
complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

4

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua
sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .
. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV.

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

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that it be
dismissed.
“In order to sue under the FTCA, . . . a plaintiff must comply with certain procedural
requirements[.]” Est. of George v. Veteran's Admin. Med. Ctr., 821 F. Supp. 2d 573, 577
(W.D.N.Y. 2011). Specifically, “[b]efore bringing a claim in a federal district court under the
FTCA, a claimant must first exhaust [his or] her administrative remedies by filing a claim for
monetary damages with the appropriate federal government entity and must receive a final
written determination.” Terry v. U.S. Off. of Pers. Mgmt., 16-CV-7475, 2016 WL 10570946, at
*1 (S.D.N.Y. Dec. 23, 2016) (citing 28 U.S.C. § 2675(a)). “Such an administrative claim must
be in writing, specify the amount of damages sought, and be filed within two years of the claim's
accrual.” Ruiz v. Fed. Police Dep't, 23-CV-7421, 2023 WL 6610762, at *3 (S.D.N.Y. Oct. 10,
2023) (citing 28 U.S.C. §§ 2401(b), 2675(a)). “A claimant may thereafter challenge the
Government’s final denial in a federal district court by filing an action within six months after
the date of the mailing of the notice of final denial by the federal entity.” Ruiz, 2023 WL

5

6610762, at *3 (citing 28 U.S.C. § 2401(b)). “If no written final determination is made by the
appropriate federal entity within six months of the date of the claimant’s filing of the
administrative claim, the claimant may then bring an FTCA action in a federal district court.” Id.
(citing 28 U.S.C. § 2675(a)). “This [exhaustion] requirement is jurisdictional and cannot be
waived.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005);
see Spina v. Lu Feng Liu, 541 F. Supp. 3d 426, 433 (S.D.N.Y. 2021) (“Where a plaintiff fails to
exhaust administrative remedies, the district court lacks subject matter jurisdiction over the
FTCA claims.”); see also Phipps v. United States, 21-CV-0105, 2021 WL 5534701, at *3
(N.D.W. Va. Aug. 16, 2021) (citing United States v. Kubrick, 444 U.S. 111, 117 (1979))
(“Because the FTCA waives the United States traditional grant of sovereign immunity, the
statute must be strictly construed.”), report and recommendation adopted, 2021 WL 4739497
(N.D.W. Va. Oct. 12, 2021).
Plaintiff attached a Standard Form 95 (“SF-95”) to his Complaint. (Dkt. No. 1, Attach. 1
at 1-4.) Plaintiff’s SF-95 is dated July 12, 2024, and states that it was submitted to this Court—
notwithstanding its identification of Defendants ASVH and ASVH ER throughout. (Id. at 1.)
On the form, Plaintiff states that the basis of his claim:
On or about 10/13/21, I went to the Emergency Room it was very early in
the Morning. The V.A. Hospital E.R. wasn’t crowded. I was seen
[illegible] of quickly for the E.R. Back pain that is chronic, or injury
reserve while on Active Duty. Back was hurting really bad AND I had
several visit to the E.R. The month before Doctor came in a prescribe 3
injections, two I had before, but not [illegible]. . . . After the nurse giving
the shots . . . I stood up and put my coat on. I got up and I took 3 steps
and I blackout. . . . I complained to the Blue Team Primary Care Doctor
[Defendant] Keiffer, VA Hospital Stratton, Albany, New York. I went
back to the V.A. Emergency Room and other (E.R’s) in the Albany Area
over 22 times from October 13 2021 to March 2022. Before Dr. Keiffer
ran any tests. I went to everyone that you would go to. Patient Advocate,
Mental Health, Pain management. I am still suffering and this case is on
going.
6

(Dkt. No. 1, Attach. 1, at 1, 3.) Plaintiff seeks $150,000.00 in damages. (Dkt. No. 1, Attach. 1 at
1.)
Plaintiff’s pleading is insufficient for two reasons.
First, Plaintiff’s claim is untimely. “Typically, FTCA medical malpractice claims accrue
‘at the time of injury.’” A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 139 (2d Cir. 2011)
(quoting Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)). Thus, Plaintiff’s claim
likely began accruing on October 13, 2021, when he injured himself. Plaintiff’s SF-95 states that
the date and day of accident was “13 October 2021.” (Dkt. No. 1, Attach. 1 at 1.)
However, construing the Complaint with the utmost liberality, Plaintiff appears to assert
that his injury is ongoing. Where a plaintiff “would reasonably have had difficulty discerning
the fact or cause of injury at the time it was inflicted, the so-called ‘diligence-discovery rule of
accrual’ applies.” Kronisch, 150 F.3d at 121. “The diligence-discovery rule sets the accrual date
at the time when, with reasonable diligence, the plaintiff has or . . . should have discovered the
critical facts of both his injury and its cause.” A.Q.C. ex rel. Castillo, 656 F.3d at 140 (internal
quotation marks and citation omitted).
The Complaint alleges that in July 2022, Plaintiff was scheduled for surgery to fix the
broken spinal fusion. (Dkt. No. 1, Attach. 1 at 3.) Based on the medical records attached to the
Complaint, (1) Plaintiff presented to the hospital on May 21, 2022, and reported that he was
scheduled to have back surgery in June (Dkt. No. 1, Attach. 1 at 78), (2) a routine MRI of
Plaintiff’s thoracic and lumbar spines was performed without intravenous contrast and the report
was verified on June 1, 2022, and compared with a CT of Plaintiff’s thoracic spine dated
November 12, 2021 (Dkt. No. 1, Attach. 1 at 82-86), and (3) on June 11, 2022, Plaintiff
presented at the hospital and it was reported that he was “scheduled for a spinal surgery in a

7

probable fusion in 4 days.” (Dkt. No. 1, Attach. 1 at 92-95.) Thus, even if the “diligencediscovery rule of accrual” applied in this matter, Plaintiff knew or should have discovered the
critical facts of both his injury and its cause on or before his hospital visit on May 21, 2022,
when he reported that back surgery was scheduled. Plaintiff’s SF-95 form was dated July 12,
2024, more than two years after Plaintiff had or should have discovered the critical facts of both
his injury and its cause, and thus, it was untimely.
Second, in the alternative, Plaintiff has not provided documentation that the Department
of Veterans’ Affairs (or the Northern District of New York) received or responded to his SF-95.
See Jaghama v. United States, 11-CV-5826, 2013 WL 508497, at *2 (E.D.N.Y. Feb. 11, 2013)
(citing Pinchasow v. United States, 408 F. Supp. 2d 138, 143 (E.D.N.Y. 2006), aff'd 2006 WL
3370714 (2d Cir. 2006)) (“A plaintiff must provide proof that his notice of claim was received
by the appropriate agency in the time and manner prescribed by the FTCA or its implementing
regulations.”); see also Phillips v. United States, 23-CV-1209, 2023 WL 6381428, at *3 (E.D.
Mo. Sept. 28, 2023) (“Plaintiff, however, has failed to . . . provide the Court the final Agency
Decision made by the VA [and t]o ascertain whether [the] plaintiff is . . . suing in a timely
manner, the Court must have the Agency Decision from the VA.”). Similarly, Plaintiff has not
pleaded that the Department of Veterans’ Affairs (or the Northern District of New York)
responded to his SF-95 or rendered a decision on his claim. See Bantis v. Gov't USA, 23-CV2492, 2023 WL 3977367, at *2 (S.D.N.Y. June 12, 2023) (dismissing the plaintiff's FTCA claim
for lack of subject matter jurisdiction because the plaintiff “ha[d] not alleged facts demonstrating
that he filed an administrative claim under the FTCA with a federal government entity for
damages and subsequently received a final written determination before bringing this action; . . .
or that it has been more than six months since he has filed such an administrative claim”); see

8

also Greenland v. United States, 22-CV-4974, 2022 WL 2702656, at *3 (S.D.N.Y. July 11,
2022) (dismissing the plaintiff's FTCA claim under the doctrine of sovereign immunity where
the plaintiff failed to allege that he received an agency denial of his administrative claim before
bringing action in the federal district court). Plaintiff commenced this action August 7, 2024,
and thus, it has not been more than six months since he filed an administrative claim.
Plaintiff has failed to sufficiently plead compliance with the FTCA’s exhaustion
requirements. See Spina, 541 F. Supp. 3d at 433 (“A plaintiff bears the burden to plead and
prove compliance with the exhaustion requirements of the FTCA.”); see also Santillan v. United
States, 19-CV-5410, 2020 WL 902922, at *3 (E.D.N.Y. Feb. 25, 2020); Shah v. Wingo, 15-CV0004, 2016 WL 4766502 (E.D. Ark. Jan. 14, 2016) (recommending dismissal for the plaintiff's
failure to exhaust his FTCA claim where the plaintiff failed to establish that, prior to filing suit,
he presented his claim to the appropriate federal agency and it was denied in writing), report and
recommendation adopted, 2016 WL 4744150 (E.D. Ark. Sept. 12, 2016). Therefore, it is
recommended that plaintiff's FTCA claim against the United States be dismissed for lack of
subject matter jurisdiction. See Adeleke v. United States, 355 F.3d 144, 154 (2d Cir. 2004)
(holding that, where the plaintiff fails to administratively exhaust his FTCA claim, there is no
federal jurisdiction to hear such claim); see also Vazquez v. Hometown Health Ctr. of
Amsterdam, NY, 21-CV-1371, 2022 WL 2304213, at *5 (N.D.N.Y. June 27, 2022) (Hummel,
M.J.) (citing Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir. 2017) (“[A] complaint
must be dismissed without prejudice where the dismissal is due to the court's lack of subject
matter jurisdiction[.]”)) (“As plaintiff failed to plead compliance with the FTCA’s exhaustion
requirements, the undersigned recommends dismissal of the complaint without prejudice.”).

9

For each of these reasons, I recommend that Plaintiff’s Complaint be dismissed.4
V.

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

litigant without granting leave to amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, where “the problem
with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).5
In deference to plaintiff's pro se status, and because a more detailed pleading could
potentially cure the defects identified, the undersigned recommends dismissing plaintiff's FTCA

4

The undersigned notes that “[t]he proper defendant in a FTCA claim is the United States,
not individual federal employees or agencies.” Holliday v. Augustine, 14-CV-0855, 2015 WL
136545, at *1 (D. Conn. Jan. 9, 2015).
5

See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
10

claim against the United States without prejudice and with leave to amend. See Greenland, 2022
WL 2702656, at *3 (granting leave to amend for the plaintiff to establish he exhausted his FTCA
claim by demonstrating he “received a final, written agency decision, or . . . the agency failed to
respond within six months after receipt of [the p]aintiff's administrative claim”).
If Plaintiff chooses to file an amended complaint, he should note that in any amended
complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates,
times, and places of the alleged underlying acts, and each individual who committed each alleged
wrongful act. In addition, the revised pleading should allege facts demonstrating the specific
involvement of any of the named defendants in the constitutional deprivations alleged in
sufficient detail to establish that they were tangibly connected to those deprivations. Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any such 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 Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original
and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is further respectfully
RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED
WITHOUT PREJUDICE and WITH LEAVE TO REPLEAD pursuant to 28 U.S.C. §
1915(e)(2)(B); and it is further

11

ORDERED that the Clerk of the Court shall file a copy of this order, report, and
recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.6
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.7 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: January ___,
7 2025
Binghamton, New York

6

The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
7

If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
12

Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

2016 WL 865296
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William PFLAUM, Individually and as a Citizen,
Resident and Taxpayer of Town of Stuyvesant, Plaintiff,
v.
TOWN OF STUYVESANT, COLUMBIA CTY.,
N.Y.; and Valerie Bertram, Individually and as
Supervisor of Town of Stuyvesant, Defendants.
1:11-CV-0335 (GTS/DJS)
|
Signed 03/02/2016
Attorneys and Law Firms
WILLIAM PFLAUM, Plaintiff, Pro Se 1 , 3 Rybka Road, Box
40, Stuyvesant Falls, NY 12174.
BRYAN D. RICHMOND, ESQ., THOMAS J. MORTATI,
ESQ., BURKE, SCOLAMIERO, MORTATI & HURD, LLP,
Attorneys for Defendants, 9 Washington Square, Suite 201,
P.O. Box 15085, Albany, NY 12212-5085.

DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this civil rights action
filed by William Pflaum (“Plaintiff”) against the Town of
Stuyvesant (“Town”) and Valerie Bertram, Town Supervisor
(“Bertram”) (collectively, “Defendants”), is Defendants'
motion for summary judgment pursuant to Fed. R. Civ. P. 56.
(Dkt. No. 59.) For the reasons set forth below, Defendants'
motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
As a result of the Court's prior decisions (Dkt. Nos. 17,
26), Plaintiff's sole remaining claim in this action is his
First Amendment retaliation claim. More specifically, as
articulated in his Complaint (which was drafted by Plaintiff,
pro se, and therefore must be construed with special
solicitude), that claim alleges three separate ways he was
retaliated against for publicly criticizing Town officials. 2

First, Plaintiff alleges that, in retaliation for filing charges
of ethical violations against Defendant Bertram, she (a)
“collaborated with and supported” the Town's Fire Chief
to deny and/or threaten to deny fire protection to Plaintiff,
(b) “supported and encouraged” various Town employees
to “illegal[ly] revo[ke] ... Plaintiff's permit to operate his
business,” and (c) “supported and encouraged” the Town
Assessor's “campaign to intimidate Plaintiff by linking [his]
political speech [with his] real estate assessment.” (Dkt. No.
1, ¶¶ 20-23, 116 [Pl.'s Compl.].)
Second, Plaintiff alleges that, in retaliation for writing
columns on his Internet blog regarding corruption among the
Town's public officials, the Town filed false criminal charges
against him. (Id., ¶ 116.)
Third, and finally, Plaintiff alleges that, in retaliation for
criticizing Bertram, the Town Assessor, and the Town, the
Town Assessor used his authority to raise taxes in order to
intimidate Plaintiff into silence. (Id., ¶¶ 23, 39, 47, 116.)
B. Defendants' Motion for Summary Judgment
*2 In their motion for summary judgment, Defendants
request the dismissal of Plaintiff's Complaint in its entirety.
(Dkt. No. 59.) In support of their motion, Defendants make
the following four arguments. First, Defendants argue that
there was no adverse action against Plaintiff in that there
was no actual chilling of Plaintiff's First Amendment speech
or any other damages. (Dkt. No. 61, at 3-8 [Defs.' Mem. of
Law].)
Second, Defendants argue that, in any event, any such adverse
action was not motivated or substantially caused by Plaintiff's
First Amendment speech. (Id. at 5-6.)
Third, in the alternative, Defendants argue that Bertram was
not personally involved in any deprivation of fire protection
services to Plaintiff. (Id. at 5, 8-10.)
Fourth, and finally, Defendants argue that Bertram is entitled
to qualified immunity. (Id.)
C. Plaintiff's Opposition Memorandum of Law
Generally construed, Plaintiff makes five arguments in
opposition to Defendants' motion. First, Plaintiff argues that
he engaged in protected speech by creating an Internet blog
on which he publicly criticized Town officials and exposed

© 2025 Thomson Reuters. No claim to original U.S. Government Works.

1

Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

their illegal activities. (Dkt. No. 65, at 3 [Pl.'s Opp'n Mem.
of Law].)

statement of material facts should be deemed admitted. (Dkt.
No. 74, at 2-6 [Defs.' Reply Mem. of Law].)

Second, Plaintiff argues that Town officials took adverse
action against him by issuing noise violations against him
with respect to loud dog barking on his property, retaining
special prosecutors to pursue civil suits and criminal charges
against him, encouraging harassment and extra-judicial
threats against him, and treating him differently from other
residents. (Id. at 4-5.) As a result, Plaintiff argues that he
suffered a chilling effect on his blogging as well as monetary
damages due to the expense required to oppose the Town's
retaliatory activities. (Id. at 6-8.)

*3 Second, Defendants argue that the record is devoid of any
admissible evidence that Bertram was personally involved in
an alleged deprivation of fire protection services with regard
to Plaintiff's residence. (Id. at 6-7.) Furthermore, Defendants
argue that Plaintiff cannot demonstrate that any adverse action
was taken because he was never actually deprived of fire
protection services and his subjective belief that the fire
department may not respond to a fire at his residence is
insufficient to create a genuine dispute of fact. (Id. at 7-8.)

Third, Plaintiff argues that the timing of these adverse actions,
i.e., that they began after he created his blog, establishes
the causal connection between his protected speech and the
adverse actions. (Id. at 5.)
Fourth, Plaintiff argues that Bertram is not entitled to qualified
immunity because it was not objectively reasonable to believe
that her actions did not violate Plaintiff's First Amendment
rights. (Id. at 5-6.) According to Plaintiff, these actions
consisted of (1) threatening to fire the Town's Dog Control
Officer if he did not serve Plaintiff with a criminal charge
related to dog barking, and (2) retaining special prosecutors
to pursue this charge against Plaintiff without first obtaining
the Town's approval. (Id. at 9.)
Fifth, Plaintiff argues that municipal liability extends to
the Town because of the actions of Bertram, the Town's
supervisor, and her position as a policymaker. (Id. at 8-9.)
Finally, the Court notes that Plaintiff spends considerable
time in his opposition papers arguing the merits of issues not
raised by Defendants in their motion. For example, Plaintiff
discusses the Town's denial of his FOIL requests, the Town's
failure to respond appropriately to alleged vandalism of his
property, and the sufficiency of the evidence that led to the
issuance of noise violations related to dog barking. (See
generally id., at 3-4, 6-9; Dkt. No. 67, ¶¶ 4, 14, 25, 27, 36,
56-107 [Pl.'s Decl.].)
D. Defendants' Reply Memorandum of Law
In reply to Plaintiff's opposition memorandum of law,
Defendants make two arguments. First, Defendants argue
that, because Plaintiff has not complied with Local Rule 7.1(a)
(3) in his response to their statement of material facts, their

E. Statement of Material Facts
1. Plaintiff's Failure to Comply
with N.D.N.Y. Local Rule 7.1
Before reciting the material facts of this case, the Court
must address Plaintiff's response to Defendant's Rule 7.1
Statement of Material Facts. Local Rule 7.1(a)(3) of the Local
Rules of Practice for this Court requires a party moving for
summary judgment to submit a statement of material facts
supported by specific citations to the record where those facts
are established. N.D.N.Y. L.R. 7.1(a)(3). The non-moving
party's subsequent response must mirror the moving party's
statement of material facts by (1) admitting and/or denying
each of the moving party's factual assertions in matching
numbered paragraphs and (2) supporting any denials with
specific citations to the record where the factual issues
arise. Id. Importantly, “[t]he Court shall deem admitted any
properly supported facts set forth in the [moving party's]
Statement of Material Facts that the [non-moving] party does
not specifically controvert.” Id.
This Court's “Local Rule requirements are not empty
formalities.” Bombard v. Gen. Motors Corp., 238 F. Supp.
2d 464, 467 (N.D.N.Y. 2002) (Munson, J.) (stating that
“[t]he courts of the Northern District have adhered to a strict
application of Local Rule 7.1[a][3]'s requirement on summary
judgment motions”); accord, Cross v. Potter, 09-CV-1293,
2013 WL 1149525, at *3 (N.D.N.Y. Mar. 19, 2013) (McAvoy,
J.). Indeed, the underlying purpose of this rule “is to assist
the court in framing the issues and determining whether
there exist any triable issues of fact that would preclude the
entry of summary judgment.” Youngblood v. Glasser, 10CV-1430, 2012 WL 4051846, at *4 (N.D.N.Y. Aug. 22, 2012)
(Peebles, M.J.); see also N.Y. Teamsters Conference Pension

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Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

& Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d
Cir. 2005) (noting that “Rules governing summary judgment
practice are essential tools for district courts, permitting them
to efficiently decide summary judgment motions by relieving
them of the onerous task of 'hunt[ing] through voluminous
records without guidance from the parties'”) (quoting Holtz v.
Rockefeller & Co., 258 F.3d 62, 74 [2d Cir. 2001]).
In the present case, Plaintiff has failed to respond
appropriately to Defendants' Rule 7.1 Statement of Material
Facts. Specifically, Plaintiff has failed to admit and/or deny
each of Defendants' factual assertions in matching numbered
paragraphs. Indeed, Defendants' Rule 7.1 Statement contains
71 paragraphs of factual assertions, while Plaintiff's 7.1
Response contains only 11 paragraphs. (Compare Dkt. No.
62 [Defs.' Rule 7.1 Statement] with Dkt. No. 66 [Pl.'s Rule
7.1 Response].) Moreover, many of Plaintiff's responses
are conclusory in nature and/or contain legal arguments.
The Court notes that, when he responded to Defendants'
motion, Plaintiff was represented by counsel. Accordingly,
the Court will accept the factual assertions in Defendants'
7.1 Statement as true to the extent that the evidence in the
record supports these facts. See Davis v. Cumberland Farms,
Inc., 10-CV-0480, 2013 WL 375477, at *4 (N.D.N.Y. Jan.
29, 2013) (Scullin, J.) (accepting the defendant's statement
of material facts as true where plaintiff neither admitted nor
denied defendant's factual assertions); Aktas v. JMC Dev. Co.,
Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D'Agostino,
J.) (accepting the third-party defendants' statement of material
facts as true because the defendant/third-party plaintiff failed
to respond to it in accordance with Local Rule 7.1[a][3] ).

2. Undisputed Material Facts
*4 For purposes of this motion, the undisputed material
facts are as follows. Gerald Ennis has served as the Zoning
Enforcement Officer for the Town of Stuyvesant continuously
since 2003. (Dkt. No. 62, ¶ 43 [Defs.' Rule 7.1 Statement].)
In this capacity, Mr. Ennis issued Plaintiff a Class 2 Home
Occupation Permit in August, 2009. (Id., ¶ 44.) Under
this permit, “[n]o unusual appearances, noise, vibration,
smoke, dust, odors, heat, glare or electrical disturbances
that exceed those normally produced by a resident shall
be permitted.” (Id., ¶ 45.) Following the issuance of this
permit, Mr. Ennis received numerous noise complaints from
Plaintiff's neighbors in regard to increasingly loud barking
from dogs on Plaintiff's property. (Id., ¶¶ 46-47.) Following an
investigation into these complaints, Mr. Ennis concluded that

Plaintiff's “home dog kennel which housed up to 50 dogs at a
time was producing noise levels that exceeded those normally
produced by a resident and, accordingly, [Plaintiff] was in
violation of his Permit.” (Id., ¶ 48.)
On December 7, 2009, Mr. Ennis issued Plaintiff a notice
of violation, which informed Plaintiff that the Town had
received several complaints about the noise coming from
his property and directed Plaintiff to remedy the violation
by December 23, 2009. (Id., ¶ 49.) Subsequently, Plaintiff
contacted Mr. Ennis and requested that his phone number
be given to those who had complained with instructions that
they contact Plaintiff directly when there are noise issues
so he can rectify any problems. (Id., ¶ 50.) However, after
a few months had passed, Plaintiff stopped answering his
neighbors' phone calls; and, as a result, his neighbors made
new complaints to Mr. Ennis. (Id., ¶ 51.) After receiving
these complaints and personally observing the loud noise
emanating from Plaintiff's property, Mr. Ennis issued a second
notice of violation to Plaintiff on April 26, 2010. (Id., ¶¶
52-53.) In response, Plaintiff advised Mr. Ennis that he would
erect a sound barrier to remedy the issue. (Id., ¶ 54.)
According to Mr. Ennis, he waited “some time” for Plaintiff
to erect, or apply for a permit to construct, a sound barrier
but neither action was taken. (Id., ¶¶ 55-56.) After continuing
to receive noise complaints, Mr. Ennis issued a third notice
of violation to Plaintiff on August 9, 2010. (Id., ¶ 56.) On
the same day, Mr. Ennis met with Bertram and the Town
Attorney to discuss the noise issue on Plaintiff's property. (Id.,
¶ 57.) The Town Attorney advised Bertram that Mr. Ennis had
the authority to revoke Plaintiff's home occupation permit if
he determined that Plaintiff was in violation of the permit's
conditions. (Id., ¶ 37.) As a result, Bertram advised Mr. Ennis
that he may revoke Plaintiff's permit if he determined that the
permit's conditions had been violated. (Id., ¶ 38.) Later that
same day (August 9, 2010), Mr. Ennis made the decision to
revoke Plaintiff's permit and notified Plaintiff of that fact. (Id.,
¶¶ 39, 59.) Neither Plaintiff's statements concerning various
issues in the Town nor his postings on various Internet sites
had any bearing on the decision to revoke Plaintiff's permit.
(Id., ¶¶ 40, 61.)
Plaintiff testified at his deposition that the basis for his claim
that he was deprived of fire protection services is that, “in
2011, or perhaps late 2010,” a local fire department chief,
Steve Montie, posted an online statement that Plaintiff should
move out of town. (Id., ¶ 14.) Plaintiff testified that the post
was made in response to one of his earlier posts on a local

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Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

town Internet forum; in Plaintiff's post, he had complained
of alleged ethical violations committed by Bertram. (Id., ¶¶
15-16.) The alleged post by Mr. Montie states in its entirety
as follows:
William,
How much more of this are you going to do ? ? ? ? You
are wasting more tax payer dollars than its worth. Man up
correct your problems and move on, or better yet move
out.
S
(Id., ¶ 19.) The author of this post is not identified by name
but only by the email address [e-mail];
and, as indicated above, the post is signed only as “S.” (Id.,
¶ 18.)
*5 Plaintiff testified that the statements in the alleged post
amounted to a threatened denial of fire department services
because “the fire chief told me I should move out of town,
which makes me wonder if there was a fire at my house
would he come.” (Id., ¶ 20.) However, Plaintiff testified that
no one has ever told him that the fire department would not
respond if there was a fire at his house. (Id., ¶ 22.) In addition,
Plaintiff testified that there are two distinct fire departments in
the Town, Stuyvesant Company 1 and Stuyvesant Company
2, which divide their responses to emergency calls in the
Town geographically. (Id., ¶ 23.) Steve Montie is the Chief
of Stuyvesant Company 1 and a different chief controls
Company 2. (Id., ¶ 25.) Plaintiff's property is located in
the geographic area covered by Company 2. (Id., ¶ 24.)
According to Bertram, she did not “in any way direct any fire
department to deprive or threaten to deprive [Plaintiff] of fire
services.” (Id., ¶ 33.)
Finally, Plaintiff testified that there was “never” a time that he
did not publicize or speak out against some issues based upon
any actions by the Town and the alleged efforts to silence him
did not work. (Id., ¶ 26.) In fact, following the alleged actions
by the Town, Plaintiff did more blogging and increased
his “political activities against the Town.” (Id., ¶ 27.) With
respect to his business, Plaintiff testified that, despite losing
his business permit in August, 2010, he continued to operate
his business uninterrupted without a permit as he had before
it was issued in 2009. (Id., ¶ 29.) Accordingly, there was
no interruption to Plaintiff's business as a result of his home
business permit being revoked. (Id., ¶¶ 28, 30.)

II. STANDARD GOVERNING A MOTION FOR
SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted
if “the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of
fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). As a result, “[c]onclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of
fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)
(citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the
Supreme Court has famously explained, “[the non-moving
party] must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86
(1986). As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
In determining whether a genuine issue of material fact
exists, the Court must resolve all ambiguities and draw all
reasonable inferences against the movign party. Anderson,
477 U.S. at 255. In addition, “[the moving party] bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
... [record] which it believes demonstrate[s] the absence of
any genuine issue of material fact.” Celotex v. Catrett, 477
U.S. 317, 323-24 (1986); see also Fed. R. Civ. P. 56(c),
(e). However, when the moving party has met this initial
burden of establishing the absence of any genuine issue
of material fact, the nonmoving party must come forward
with specific facts showing a genuine dispute of material
fact for trial. Fed. R. Civ. P. 56(c), (e). Where the nonmovant fails to deny the factual assertions contained in the
movant's Rule 7.1 Statement of Material Facts in matching
numbered paragraphs supported by a citation to admissible
record evidence (as required by Local Rule 7.1[a][3] of the
Court's Local Rules of Practice), the court may not rely solely
on the movant's Rule 7.1 Statement; rather, the court must be
satisfied that the citations to evidence in the record support
the movant's assertions. See Giannullo v. City of N.Y., 322
F.3d 139, 143, n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment
“would derogate the truth-finding functions of the judicial
process by substituting convenience for facts”).

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III. ANALYSIS
A. Whether Plaintiff Suffered an Adverse Action
*6 After carefully considering the matter, the Court answers
this question in the negative for the reasons set forth in
Defendants' memorandum of law and reply memorandum of
law. (Dkt. No. 61, at 3-8 [Defs.' Mem. of Law]; Dkt. No. 74, at
6-8 [Defs.' Reply Mem. of Law].) To those reasons, the Court
adds the following two points.
As this Court noted in its prior decisions, in order to
state a claim for retaliation under the First Amendment, “a
plaintiff must prove (1) his conduct was protected by the
First Amendment, (2) the defendants' actions were motivated
or substantially caused by the exercise of that right, and
(3) defendants' actions effectively 'chilled' the exercise of
plaintiff's First Amendment right.” Pflaum, 937 F. Supp. 2d
at 303 (citing Dillon v. Morano, 497 F.3d 247, 251 [2d Cir.
2007]). “In cases 'involving criticism of public officials by
private citizens,' the Second Circuit has generally 'impose[d]
an actual chill requirement for First Amendment retaliation
claims[,]' i.e., a requirement that the plaintiff allege and
ultimately prove an 'actual chill' of his First Amendment
rights.” Hafez v. City of Schenectady, 894 F. Supp. 2d 207, 221
(N.D.N.Y. 2012) (D'Agostino, J.) (quoting Gill v. Pidlypchak,
389 F.3d 379, 381 [2d Cir. 2004]). “To establish this element,
it is not enough for the plaintiff simply to show that he
changed his behavior in some way; he must show that the
defendant intended to, and did, prevent or deter him from
exercising his rights under the First Amendment.” Hafez, 894
F. Supp. 2d at 221. “However, 'where the retaliation is alleged
to have caused an injury separate from any chilling effect,
such as a job loss or demotion, an allegation as to a chilling
effect is not necessary to state a claim.'” Id. (quoting Puckett v.
City of Glen Cove, 631 F. Supp. 2d 226, 239 [E.D.N.Y. 2009]);
see also Brink v. Muscente, 11-CV-4306, 2013 WL 5366371,
at *7 (S.D.N.Y. Sept. 25, 2013) (noting that, in private citizen
cases, “various forms of concrete harm have been substituted
for the 'actual chilling' requirement”).
First, it is clear from Plaintiff's deposition testimony that there
was no actual chilling of his protected speech as a result of
Defendants' actions. As discussed above, Plaintiff admitted
that he increased his political activities and continued to
publicize his opinions against the Town in the face of its
alleged efforts to silence him. “Where a party can show no
change in his behavior, he has quite plainly shown no chilling
of his First Amendment right to free speech.” Curley v. Vill.
of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see also Singer v.

Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (finding no
chilling effect where, after an arrest, the plaintiff continued to
publish his newspaper through which he criticized the village
government); Spear v. Town of W. Hartford, 954 F.2d 63,
67 (2d Cir. 1992) (finding no chilling effect where, after the
filing of a lawsuit, the plaintiff continued to write criticizing
editorials in the same manner as before the lawsuit).
Second, to the extent that Plaintiff argues that he perceived
the online post regarding the loss of fire protection as a real
threat, he is still required to show that his perception was
objectively reasonable, i.e., “that the defendant[s'] actions
had some actual, non-speculative chilling effect.” Colombo v.
O'Connell, 310 F.3d 115, 117 (2d Cir. 2002); see also Laird v.
Tatum, 408 U.S. 1, 13-14 (1972) (holding that “[a]llegations
of a subjective 'chill' are not an adequate substitute for a
claim of specific present objective harm or a threat of specific
future harm”). Plaintiff's subjective belief that the online
post constituted a real threat, without more, is insufficient to
demonstrate an actual chilling effect on his First Amendment
rights. Indeed, as discussed above in Point I.E.2. of this
Decision and Order, Plaintiff admitted that no one had told
him that the fire department would not respond if there was
a fire at his house. Moreover, a different fire chief than the
one who allegedly authored the online post is responsible for
responding to fire calls in the location of Plaintiff's residence.
B. Whether There Was a Causal Connection Between
Plaintiff's Speech and Any Adverse Action
*7 After carefully considering the matter, the Court answers
this question in the negative for the reasons set forth below.
To establish the second element of his First Amendment
retaliation claim, “plaintiff must provide specific proof of
defendants' improper motivation with either circumstantial or
direct evidence.” Media All., Inc. v. Mirch, 09-CV-0659, 2011
WL 3328532, at *5 (N.D.N.Y. Aug. 2, 2011) (D'Agostino,
J.) (citing Curley, 285 F.3d at 73). “Circumstantial evidence
includes close temporal proximity between plaintiff's speech
and the alleged retaliatory act.” Mirch, 2011 WL 3328532, at
*5.
“Regardless of the presence of retaliatory motive, however,
a defendant may be entitled to summary judgment if he
can show dual motivation, i.e., that even without the
improper motivation the alleged retaliatory action would have
occurred.” Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir.
2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 [1977]). “Plaintiff has the initial burden

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Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

of showing that an improper motive played a substantial part
in defendant's action. The burden then shifts to defendant to
show it would have taken exactly the same action absent the
improper motive.” Scott, 344 F.3d at 288.

1. Revocation of Plaintiff's Business Permit
In denying Defendants' underlying motion to dismiss
Plaintiff's First Amendment claim, this Court held that
Plaintiff had sufficiently alleged a concrete harm through
the loss of his business permit, and consequently, the loss
of business income, as a result of Defendants' alleged
retaliatory actions. Pflaum, 937 F. Supp. 2d at 308. Having
carefully reviewed the record, the Court finds that Plaintiff
has failed to create a genuine dispute of material fact
regarding Defendants' alleged improper motive. Specifically,
with respect to the revocation of his business permit, the
undisputed facts establish that the Town received complaints
regarding the noise emanating from Plaintiff's property.
Plaintiff was given two 3 noise violations over the course of
approximately one year and ample opportunity to rectify the
problem. (Dkt. No. 67, Attach. 5.) Because the noise problem
and complaints continued, Mr. Ennis revoked Plaintiff's
permit. 4 Even if Plaintiff were able to establish that an
improper motive played a part in this decision, it is clear
to the Court that, under these circumstances, the revocation
would have still occurred. Indeed, Plaintiff challenged the
decision to revoke his permit in appeals made to the Town's
Zoning Board of Appeals and in two actions filed in New
York State Supreme Court. (Dkt. No. 67, Attachs. 1 & 2.)
Although Plaintiff was successful in his state court actions,
those decisions were based, in part, upon the Town's failure to
follow proper procedure, rather than the merits of the Town's
decision. (Id.)

2. Criminal Charges
*8 Plaintiff has also failed to demonstrate an improper
motive with respect to his claim that he received false criminal
charges in retaliation for comments on his website about
corruption among public officials. Plaintiff relies on the
temporal proximity of these charges with a meeting he had
with Bertram and his filing of an Article 78 petition in New
York State Supreme Court. More specifically, Plaintiff argues
that he began an Internet blog on or about January 1, 2011,

and in that blog reported on what he perceived to be the illegal
activities of Town officials. (Dkt. No. 67, ¶ 15 [Pl.'s Decl.].)
For example, on January 1, 2011, Plaintiff wrote about the
alleged inflation of billable time by the Town Attorney that
was spent on work paid for by the Town. (Id. at 65:8-11.)
Around the same time, Plaintiff met with Bertram to discuss
his discovery of specific instances of corruption by public
officials, including the alleged inflation of billable work by
the Town Attorney. (Dkt. No. 59, Attach. 7, at 62:13-15;
64:9-15 [Pl.'s Dep. Tr.].) On January 15, 2011, a few days
after this meeting occurred, Plaintiff was issued a criminal
summons for the offense of “habitual loud barking,” in
violation of N.Y. Local Law § 1. (Id. at 61:19-22; Dkt. No.
68, Attach. 7 [Criminal Summons]; Dkt. No. 67, ¶ 15 [Pl.'s
Decl.].) Plaintiff testified at his deposition that the Town
Attorney went to great lengths to research the Local Law that
he was charged under and assisted one of Plaintiff's neighbors
in drafting an affidavit upon which the criminal summons
was based. (Dkt. No. 59, Attach. 7, at 65:17-21 [Pl.'s Dep.
Tr.]; Dkt. No. 67, ¶ 107 [Pl.'s Decl.].) Plaintiff argues that
he is the first Town resident to be charged under this section
of the Local Law. (Dkt. No. 67, ¶¶ 100, 106 [Pl.'s Decl.].)
Finally, Plaintiff argues that Bertram retained outside counsel
to pursue this charge against him, which was later dismissed.
(Dkt. No. 67, ¶¶ 5, 19, 21 [Pl.'s Decl.]; Dkt. No. 59, Attach.
7, at 57:16-18 [Pl.'s Dep. Tr.].)
Thereafter, in October 2011, Plaintiff filed an Article 78
petition in New York State Supreme Court challenging
the Town's denial of Plaintiff's FOIL requests. (Dkt. No.
59, Attach. 7, at 67:7-12 [Pl.'s Dep. Tr.].) Plaintiff sought
disclosure of the information in the FOIL requests to
substantiate his belief that Town officials were engaging
in illegal activities. (Dkt. No. 67, ¶¶ 43-44 [Pl.'s Decl.].)
One week after commencing that action, Plaintiff received a
second criminal summons for the same offense related to loud
dog barking. (Dkt. No. 68, Attach. 7 [Appearance Ticket];
Dkt. No. 59, Attach. 7, at 56:16-19; 67:7-12 [Pl.'s Dep. Tr.].)
Plaintiff testified that he had “almost no dogs” on his property
in October 2011. (Dkt. No. 59, Attach. 7, at 67:8-10 [Pl.'s Dep.
Tr.].) According to Plaintiff, that charge was neither dismissed
nor withdrawn, but “vanished.” (Id., at 57:19-58:9.)
While Plaintiff's allegations may plausibly suggest that an
improper motive played a role in the charges brought
against him, Defendants have submitted admissible record
evidence that establishes otherwise. (Dkt. No. 59, Attach. 17.)
Specifically, the criminal information in question is signed

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Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

by one of Plaintiff's neighbors, Frederick Platt, and states, in
part, that “my complaint is that the dogs at Glencadia Dog
Camp exhibit ongoing habitual barking/howling at any given
time of day or night. This has been an issue since the Fall of
2009.” (Id.) Furthermore, an affidavit filed by Wes Powell, the
Town's Dog Control Officer, states that he received repeated
complaints from Mr. Platt throughout 2010, culminating in
the noise complaint that served as the basis for the criminal
charge. (Dkt. No. 59, Attach. 16, ¶¶ 3-5 [Powell Aff.].) Mr.
Powell states that the complaint was written by Mr. Platt in
his presence and that no Town official directed Mr. Powell to
serve Plaintiff with the criminal summons. (Id., ¶¶ 7-10.)
*9 Conversely, Plaintiff has not submitted any admissible
record evidence supporting his claim that the Town Attorney
(who is not a party) played any role in the charge being
filed against him or that he is the only resident to have
ever been charged under this section of the Local Law.
Similarly, Plaintiff's contention that the Town pressured Mr.
Platt to file a complaint against him (Dkt. No. 67, ¶ 7[Pl.'s
Decl.] ) is unsubstantiated. While the timing of the charge
may appear suspicious, the Town cannot control when its
residents decide to file a complaint and, in light of the record
evidence demonstrating that there was a preexisting noise
problem on Plaintiff's property, the complaint is unsurprising.
Moreover, the fact that Plaintiff believes the Town shored up
its criminal charge against him is of little, if any, materiality.
Finally, because the second charge seemingly “vanished,” no
documentation or evidence (other than the appearance ticket
itself) has been submitted with respect to that charge. In any
event, because the charge was never prosecuted, Plaintiff
has failed to support his claim that he suffered any harm.
Accordingly, the Court finds that Plaintiff has failed to meet
his burden in demonstrating an improper motive with respect
to this charge.

3. Town Assessor Gleason
Plaintiff claims that Town Assessor Howard Gleason (also not
a party) threatened to raise his property taxes for engaging in
political activities when Mr. Gleason hand delivered a letter to
Plaintiff before a public meeting. (Dkt. No. 69, Attach. 18, at
3 [Letter from Pl. to Gleason]; Dkt. No. 67, ¶ 29 [Pl.'s Decl.].)
The only evidence submitted with respect to this claim is
not the original letter from Mr. Gleason to Plaintiff but letter
correspondence from Plaintiff to Mr. Gleason. (Dkt. No. 69,
Attach. 18, at 3 [Letter from Pl. to Gleason].) Plaintiff's letter
to Mr. Gleason, dated October 5, 2010, states that Plaintiff

interpreted Mr. Gleason's attempt to speak with him about tax
filings before a town hall meeting as threatening in nature
due to the “timing and manner of the interaction.” (Id.)
This is because Plaintiff “had announced [his] intention to
call for a referendum frequently and in many forums prior
to appearing for the meeting.” (Id.) Furthermore, Plaintiff
requested that, in order to “avoid the impression that you
coordinate your tax-related activities with other people in
government in order to intimidate free speech, please do not
present important information to me in such an information
[sic] and unverifiable way.” (Id.)
However, Mr. Gleason's response to Plaintiff's letter suggests
that their interaction was not meant as a threat to
raise Plaintiff's taxes or “was in any way politically
motivated.” (Dkt. No. 69, Attach. 18, at 4 [Letter from Pl.
to Gleason].) More specifically, Mr. Gleason explains that
he needed to re-assess Plaintiff's property in light of the fact
that Plaintiff was now running a kennel (business) on his
property and decided to hand deliver his letter knowing that
Plaintiff would be present for the town hall meeting. (Id.)
Moreover, Mr. Gleason reassured Plaintiff that politics do not
dictate how he performs his job and promised that all future
communication will be transmitted through mail rather than
in-person. (Id.)
Plaintiff has failed to submit any additional evidence with
respect to his tax assessment, that his taxes were improperly
raised or that Mr. Gleason acted with a retaliatory animus. 5
Similarly, no evidence has been submitted to substantiate
Plaintiff's claim that Bertram encouraged Mr. Gleason to use
his authority as Town Assessor to intimidate Plaintiff. In sum,
Plaintiff has wholly failed to satisfy his burden demonstrating
that he suffered harm as a result of any action taken by Mr.
Gleason and that Mr. Gleason acted with an improper motive.
*10 For all of these reasons, the Court finds that Plaintiff
has failed to create a genuine dispute of material fact with
respect to his First Amendment claim. Because the Court has
reached this conclusion, it need not, and does not, consider the
merits of Defendant Bertram's alternative qualified immunity
argument.
ACCORDINGLY, it is
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 59) is GRANTED. The Clerk of the Court is
directed to enter judgment in favor of the Defendants and
close this case.

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7

Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

All Citations
Not Reported in Fed. Supp., 2016 WL 865296

Footnotes
1

Although Plaintiff is currently proceeding pro se, the Court notes that he had counsel when preparing his
response to Defendant's motion for summary judgment. Accordingly, no need exists to construe Plaintiff's
response with the special solicitude ordinarily afforded to pro se litigants.

2

The Court notes that, while it did not previously (i.e., in its prior decisions) liberally construe Plaintiff's
retaliation claim as arising under three separate theories, it does so now. The Court further notes that it
has the power to address these two additional theories for each of two alternative reasons: (1) because
Defendants moved for dismissal of Plaintiff's retaliation claim in its entirety, Plaintiff has had sufficient notice
and an opportunity to be heard with respect to the two theories in question; and (2) in any event, even if
Plaintiff cannot be said to have had such notice and an opportunity to be heard, he filed his Complaint pro
se and the Court finds the two theories to be so lacking in arguable merit as to be frivolous, see Fitzgerald
v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has
power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has
paid statutory filing fee).

3

As discussed above, Plaintiff was actually given three noise violations. However, because his permit was
revoked on the same day that he received the third violation, the Court will disregard the third violation for
purposes of this analysis.

4

The Court notes that Plaintiff spends considerable time in his opposition papers disputing the sufficiency of the
evidence and procedures that were followed that led to the issuance of noise violations. (See generally Dkt.
No. 67, ¶¶ 56-95 [Pl.'s Decl.].) However, this Court is not the proper forum for that dispute. Furthermore, to
the extent that the New York Supreme Court observed that there appeared “to have been a disproportionate
amount of time and money spent on [the noise violation] notice,” and that the records did not “reveal a real
issue with dog-barking,” those observations are not binding upon this Court. (Dkt. No. 67, Attach. 2, at 6.)
Setting aside the fact that the observations constitute dicta, Defendants have submitted admissible record
evidence demonstrating that Mr. Ennis acted upon complaints made to him by residents of the Town, which
Plaintiff has failed to properly dispute.

5

For example, with regard to this lack of additional evidence regarding retaliatory animus, Plaintiff has failed to
adduce admissible record evidence establishing that, even assuming Mr. Gleason knew of Plaintiff's intent to
engage in protected speech, the so-called “manner of the interaction” by Mr. Gleason (i.e., the hand delivery
of the letter) was in fact unusual for Mr. Gleason given the date of the letter and the date of the public
meeting. Moreover, Plaintiff has failed to adduce admissible record evidence that the so-called “timing ...
of the interaction” is significant, given his rather constant exercise of his First Amendment rights during the
time in question.

End of Document

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8

Terry v. U.S. Office of Personnel Management, Not Reported in Fed. Supp. (2016)

2016 WL 10570946
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Elizabeth Marie TERRY, Plaintiff,
v.
U.S. OFFICE OF PERSONNEL
MANAGEMENT, Defendant.
16–CV–7475 (CM)
|
Signed 12/23/2016
Attorneys and Law Firms
Elizabeth Marie Terry, New York, NY, pro se.

ORDER OF DISMISSAL
COLLEEN McMAHON, Chief United States District Judge
*1 Plaintiff Elizabeth Marie Terry, appearing pro se, brings
this action alleging that the United States Office of Personnel
Management (OPM) negligently allowed her Social Security
number and other private information to be obtained by
a “cyber-intru[der],” causing her damages. (Am. Comp. at
3.) By order dated October 3, 2016, the Court granted
Plaintiff's request to proceed without prepayment of fees,
that is, in forma pauperis. On October 12, 2016, the Court
granted Plaintiff leave to amend her complaint (1) to allege
whether she exhausted her administrative remedies before
filing suit, as required by the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671–80 (FTCA), and (2) to substitute
the United States as a defendant in place of OPM, which the
Court dismissed from this action. Plaintiff filed an amended
complaint on December 14, 2016. For the reasons that follow,
the Court dismisses this action in its entirety.

STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or
portion thereof, that is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co.,
141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss
a complaint when the Court lacks subject matter jurisdiction.

See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal
on any of these grounds, the Court is obliged to construe pro
se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009), and interpret them to raise the “strongest [claims]
that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474–75 (2d Cir. 2006) (internal quotation marks and
citations omitted) (emphasis in original).

BACKGROUND
Plaintiff, a Manhattan resident, uses the Court's amended
complaint form, invokes the Court's federal question
jurisdiction, and alleges as follows: Plaintiff served as a
volunteer in the AmeriCorps VISTA program. As part of
that program, Plaintiff gave personal information, including
her Social Security number and fingerprints, to OPM and
the Federal Bureau of Investigation (FBI) for use in a
criminal background check. Plaintiff contends that due to
OPM's negligence, “a cyber-intrusion was carried out against
the federal government's VISTA volunteers,” resulting in
Plaintiff's “FBI criminal history check fingerprinting [being]
compromised.” (Am. Comp. at 3.) OPM sent Plaintiff a letter
confirming that the security of Plaintiff's personal information
had been breached and offering Plaintiff “ID expert services
for the next three years.” (Id.) Plaintiff states that as a result of
the breach, her “personal property” has been damaged. (Id. at
3.) She sues OPM, and she seeks both compensatory damages
and an apology letter from OPM. (Id. at 4.)

DISCUSSION
The Court construes Plaintiff's allegations as raising claims
under the FTCA. That statute provides for a waiver of
sovereign immunity for injuries arising from the tortious
conduct of federal officers or agents acting within the scope
of their office or employment. 28 U.S.C. § 1346(b)(1).
Before bringing a claim in a federal district court under
the FTCA, a claimant must first exhaust her administrative
remedies by filing a claim for monetary damages with the
appropriate federal government entity and must receive a
final written determination. See 28 U.S.C. § 2675(a). Such an
administrative claim must be in writing, specify the amount of
damages sought, and be filed within two years of the claim's
accrual. 28 U.S.C. §§ 2401(b), 2675(a); A.Q.C. ex rel Castillo
v. United States, 715 F. Supp. 2d 452, 457 (2d Cir. 2010)
(citing Millares Guiraldes de Tineo v. United States, 137 F.3d
715, 720 (2d Cir. 1998)). A claimant may thereafter challenge

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1

Terry v. U.S. Office of Personnel Management, Not Reported in Fed. Supp. (2016)

the agency's final denial in a federal district court by filing
an action within six months of the date of the mailing of the
notice of final denial by the agency. See § 2401(b). If no
written final determination is made by the appropriate federal
entity within six months of the date of the claimant's filing of
the administrative claim, the claimant may then bring a FTCA
action in a federal district court. See § 2675(a).

to appropriate administrative agency). The Court therefore
must dismiss Plaintiff's FTCA claims without prejudice to
Plaintiff's refiling such claims against the United States after
she exhausts her administrative remedies under the FTCA.
See 5 C.F.R. §§ 177.101–177.110 (detailing administrative
remedies for claims against OPM).

*2 In the Court's order dated October 12, 2016, the
Court noted that Plaintiff had failed to allege that she
exhausted her administrative remedies with OPM prior to
filing suit. The Court therefore directed Plaintiff to file an
amended complaint to demonstrate that she exhausted her

CONCLUSION

administrative remedies. 1
In the amended complaint, however, Plaintiff does not address
any of the deficiencies set forth in the Court's October
12, 2016 order. Specifically, Plaintiff does not describe any
efforts to exhaust her administrative remedies before filing
suit. Because it appears that Plaintiff has not exhausted
her administrative remedies, this Court lacks subject-matter
jurisdiction over Plaintiff's FTCA claims. See McNeil v.
United States, 508 U.S. 106, 113 (1993) (“The FTCA bars
claimants from bringing suit in federal court until they
have exhausted their administrative remedies.”); Robinson
v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d
Cir. 1994) (dismissing FTCA claim for lack of subject
matter jurisdiction where plaintiff failed to first present claim

The Clerk of Court is directed to mail a copy of this order to
Plaintiff and note service on the docket. This action, filed in
forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed for
lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)
(3).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438,
444–45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 10570946

Footnotes
1

The Court also directed Plaintiff to substitute the United States as a defendant in place of OPM because “
‘only the United States may be held liable for torts committed by a federal agency, and not the agency itself.’
” (See Order dated October 12, 2016, at 4 (quoting C.P. Chem. Co. v. United States, 810 F.2d 34, 37 n.1
(2d Cir. 1987)).)

End of Document

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2

Ruiz v. Federal Police Department, Slip Copy (2023)

2023 WL 6610762
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Angel RUIZ, Plaintiff,
v.
FEDERAL POLICE DEPARTMENT, Defendant.
23-CV-7421 (LTS)
|
Signed October 10, 2023
Attorneys and Law Firms
Angel L. Ruiz, Bronx, NY, Pro Se.

ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff, who is proceeding pro se, brings this
action under the court's diversity jurisdiction, alleging that
unidentified officers employed at the 40 Foley Square
federal courthouse in Manhattan violated his rights by using
excessive force against him. By order dated August 31, 2023,
the Court granted Plaintiff's request to proceed in forma
pauperis (“IFP”), that is, without prepayment of fees. For the
reasons set forth in this order, the Court dismisses this action,
but grants Plaintiff 60 days' leave to replead his claims in an
amended complaint.

v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at
475 (citation omitted), has its limits – to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short
and plain statement showing that the pleader is entitled to
relief.
Rule 8 requires a complaint to include enough facts to state
a claim for relief “that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible if the plaintiff pleads enough factual detail
to allow the Court to draw the inference that the defendant is
liable for the alleged misconduct. In reviewing the complaint,
the Court must accept all well-pleaded factual allegations as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it
does not have to accept as true “[t]hreadbare recitals of the
elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal
conclusions from well-pleaded factual allegations, the Court
must determine whether those facts make it plausible – not
merely possible – that the pleader is entitled to relief. Id.

BACKGROUND
Plaintiff, a resident of Bronx, New York, brings this action
against the “Federal Police Department,” for alleged violation
of his rights at the 40 Foley Square federal courthouse in
Manhattan. He invokes diversity jurisdiction and asserts that
Defendant “violated my rights for being disable[d].” (ECF 1,
at 2.) 1

STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of
the complaint, that is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co.,
141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss
a complaint when the Court lacks subject matter jurisdiction
of the claims raised. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the
Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them
to raise the “strongest [claims] that they suggest,” Triestman

*2 Plaintiff alleges that in January 2018, he arrived at
the federal courthouse for court proceedings, and sat on his
walker while waiting to pass through a metal detector. He
then had a seizure and fell on the floor. The seizure “became
severe,” and Plaintiff's partner attempted to help him, but five
members of the “Federal Police” pushed his partner away. (Id.
at 5.) Plaintiff alleges that the following happened:

they was around me and 1 officer. Grab
me from my jacket when I was on the
floor while I was having my seizure.
He lift me up and punched me with
his hand and with the other hand he
punched me in my chest over my heart

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1

Ruiz v. Federal Police Department, Slip Copy (2023)

area. And I fall back and cracked my
left should on the floor.

the United States, such suits are ... barred under the doctrine
of sovereign immunity, unless such immunity is waived.”).

(Id. at 5-6.) Plaintiff asserts that he was on the floor for 30
minutes before an ambulance arrived and took him to the
hospital. He claims that although the 5 officers had body
cameras and there are hundreds of cameras at the courthouse,
the officers did not “report the hate crime to [the] court or the
D.O.J.” (Id. at 6.) Plaintiff also claims that he wrote seven
letters to the court and the judge “to do an investigation and
report to the D.O.J. [a]nd they refuse[d][,] [s]o they cover[ed]

The Federal Tort Claims Act (“FTCA”) provides a waiver
of sovereign immunity for certain claims arising from the
tortious conduct of federal officers or employees acting within
the scope of their office or employment. See 28 U.S.C. §§
1346(b)(1), 2680. The proper defendant in an FTCA claim
is the United States, not individual federal employees or
agencies.” Holliday v. Augustine, No. 3:14-CV-0855, 2015
WL 136545, at *1 (D. Conn. Jan. 9, 2015). The Court
therefore construes Plaintiff's claims as brought against the
United States of America.

[this] hate crime.” 2
Plaintiff alleges the following as his injuries: “Permanent
injury in my left shoulder. And this create the P.S.D. and
affected to my disability. For the rest of my life.” (ECF 1, at
6.) He seeks $10 million in damages.

DISCUSSION
Plaintiff brings this action under the Court's diversity
jurisdiction against the “Federal Police Department,” an
entity that does not exist. It appears, however, that Plaintiff
is attempting to bring claims against the entity that employs
the five officers who he alleges were involved in the January
2018 incident at the 40 Foley Square federal courthouse. The
Court can presume that these individuals were Court Security
Officers (“CSOs”) or members of the United States Marshals
Service (“USMS”). 3 Because Plaintiff is bringing tort and
other claims arising out of an incident at a federal courthouse,
the Court construes the complaint as bringing federal claims
under the Court's federal question jurisdiction.
A. Sovereign Immunity and the Federal Torts Claims
Act (“FTCA”)
*3 Any claims Plaintiff may be asserting against the United
States of America, the USMS, or any other federal entity
are barred under the doctrine of sovereign immunity. The
doctrine bars federal courts from hearing all suits against the
federal government and its agencies, except where sovereign
immunity has been waived. United States v. Mitchell, 445
U.S. 535, 538 (1980) (quoting United States v. Sherwood,
312 U.S. 584, 586 (1941)); see Robinson v. Overseas Military
Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an
action against a federal agency ... is essentially a suit against

A plaintiff must comply with the FTCA's procedural
requirements before a federal court can entertain his claims.
See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d
Cir. 1999), abrogated on other grounds, United States
v. Kwai Fun Wong, 575 U.S. 402 (2015). Specifically,
before bringing a damages claim in a federal district
court under the FTCA, a claimant must first exhaust his
administrative remedies by filing a claim for damages with
the appropriate federal government entity and must receive a
final written determination. See 28 U.S.C. § 2675(a). Such an
administrative claim must be in writing, specify the amount
of damages sought, and be filed within two years of the
claim's accrual. 28 U.S.C. §§ 2401(b), 2675(a). A claimant
may thereafter challenge the Government's final denial in a
federal district court by filing an action within six months
after the date of the mailing of the notice of final denial by the
federal entity. See § 2401(b). If no written final determination
is made by the appropriate federal entity within six months of
the date of the claimant's filing of the administrative claim, the
claimant may then bring an FTCA action in a federal district
court. See § 2675(a).
Inasmuch as Plaintiff's allegations can be construed as
damage claims under the FTCA against the United States,
he has not alleged facts demonstrating that he filed
an administrative claim under the FTCA with a federal
governmental entity for damages and received a final written
determination before bringing this action; nor has he alleged
facts showing that it has been more than six months since
he has filed such an administrative claim. Although Plaintiff
alleges that he submitted seven letters to the court and the
judge seeking an investigation of the incident, there is no
indication that these alleged letters were administrative claims
that specified the amount of damages sought as required
by the FTCA. As Plaintiff does not allege or show that he

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2

Ruiz v. Federal Police Department, Slip Copy (2023)

exhausted his claims prior to bringing this action, the FTCA
does not provide a waiver of sovereign immunity in this case.
Therefore, Plaintiff's claims, which are construed as brought
against the United States, are barred under the doctrine of
sovereign immunity.
Because Plaintiff may be able to allege facts showing that he
exhausted a claim under the FTCA by filing an administrative
claim with the appropriate agency, the Court grants Plaintiff
60 days' leave to file an amended complaint to state facts
in support of any FTCA claim against the United States he
wishes to pursue.
B. Constitutional Tort Claims
*4 Plaintiff's complaint could also be read as an attempt to
assert constitutional tort claims under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). 4 A plaintiff may bring Bivens claims against a
federal official to seek redress for a violation of his or her
constitutional rights. 5 See Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009) (“[Bivens] is the federal analog to suits brought
against state officials under [42 U.S.C. § 1983].”). However,
Bivens relief is available only against federal officials who
are personally liable for the alleged constitutional violations;
it does not overcome the sovereign immunity that bars suits
for money damages against the United States, its agencies or
federal officials sued in their official capacities. See Ziglar
v. Abbasi, 137 S. Ct. 1843, 1860 (2017); Turkmen v. Hasty,
789 F3d 218, 233 (2d Cir. 2015); Wright v. Condit, No.
13-CV-2849, 2015 WL 708607, at *1 (S.D.N.Y. Feb. 18,
2015) (citation omitted); see also Fed. Deposit Ins. Corp.
v. Meyer, 510 U.S. 471, 484-86 (1994) (holding that Bivens
provides no cause of action against the United States or its
agencies); Hightower v. United States, 205 F. Supp. 2d 146,
155 (S.D.N.Y. 2002) (the United States has not consented
to be sued under Bivens). Because Plaintiff does not name
individual defendants subject to Bivens liability, 6 the Court
need not reach the issue of whether he has an implied cause
of action under Bivens. 7
*5 Moreover, even if Plaintiff had asserted claims against
individual defendants, it appears that any potential Biven
claims that he could assert arising from the February 2018
incident would be time-barred. Claims brought under Bivens
borrow the statute of limitations for claims under 42 U.S.C.
§ 1983. See Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir.
2015). The limitation period for Section 1983 claims is found
in the “general or residual [state] statute [of limitations] for

personal injury actions.” Pearl v. City of Long Beach, 296 F.3d
76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235,
249-50 (1989)). In New York, that period is three years. See
N.Y. C.P.L.R. § 214(5). Under federal law, claims generally
accrue when a plaintiff knows or has reason to know of the
injury that is the basis of the claim. Hogan v. Fischer, 738
F.3d 509, 518 (2d Cir. 2013).
Plaintiff filed this complaint on August 18, 2023. Therefore,
he is precluded from pursuing any claims under for claims
that accrued before August 18, 2020. Plaintiff brings this
action asserting claims arising out of conduct that occurred
in February 2018. It therefore appears that the statute of
limitations period for Plaintiff's claims expired well before he
filed this action and that any claims he seeks to assert under
Bivens are time barred. 8
It is clear that Plaintiff filed his claims well beyond the
expiration of the applicable statute of limitations. Normally,
the Court would grant him leave to plead any facts showing
that equitable tolling applies 9 but, as discussed above,
Plaintiff has not stated a claim for damages under Bivens
against any individual defendant. Any claim for damages that
Plaintiff is attempting to assert under Bivens must therefore
be dismissed for failure to state a claim on which relief can be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Claim of Disability Discrimination
Plaintiff refers to his disability and asserts that his rights
were violated because he is disabled. To the extent
Plaintiff's assertion could be considered as a claim under
the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796, it
must be dismissed. The Rehabilitation Act provides that “[n]o
otherwise qualified individual with a disability ... shall, solely
by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
[f]ederal financial assistance or under any program or activity
conducted by any [e]xecutive agency.” 29 U.S.C. § 794(a). To
assert a claim under the Rehabilitation Act, a plaintiff must
show “(1) that he is a qualified individual with a disability;
(2) that the defendants are subject to [the Rehabilitation Act];
and (3) that he was denied the opportunity to participate in or
benefit from defendants' services, programs, or activities, or
was otherwise discriminated against by defendants, by reason
of his disability.” Harris v. Mills, 572 F.3d 66, 73–74 (2d Cir.
2009).

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Ruiz v. Federal Police Department, Slip Copy (2023)

*6 Here, assuming Plaintiff was disabled within the meaning
of the Rehabilitation Act, he does not plead any facts that
give rise to an inference that the officers at the 40 Foley
Square courthouse engaged in any behavior by reason of his
disability. Plaintiff does not allege that the actions of which
he complains were based on a facially neutral policy that
has a discriminatory effect on those with disabilities, that
there was a failure to accommodate his disability, or that he
was otherwise discriminated against because of his disability.
Plaintiff thus fails to state a claim under the Rehabilitation
Act. The Court therefore dismisses Plaintiff's disability based
claim for failure to state a claim on which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Furthermore, any claims Plaintiff may have under the
Rehabilitation Act appears to be barred by the applicable
statute of limitations. Because the Rehabilitation Act does
not contain a statute of limitations, courts look to analogous
state law to determine the applicable limitations period.
See Graham Cnty. Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 545 U.S. 409, 414 (2005)
(“To determine the applicable statute of limitations for a
cause of action created by a federal statute, we first ask
whether the statute expressly supplies a limitations period.
If it does not, we generally ‘borrow’ the most closely
analogous state limitations period.”). Similar to Section 1983
and Bivens claims, New York's three-year personal injury
statute of limitations also applies to claims brought under
the Rehabilitation Act. See N.Y. C.P.L.R. § 214(5); see also
Stropkay v. Garden City Union Free Sch. Dist., 593 F. App'x
37, 41 (2d Cir. 2014) (applying New York's three-year statute
of limitations to claims under the Americans with Disabilities
Act (“ADA”) and Rehabilitation Act); Harris v. City of
New York, 186 F.3d 243, 248 (2d Cir. 1999) (applying New
York's three-year statute of limitations to claims under the
Rehabilitation Act); Best v. Bell, No. 13-CV-0163 (JPO),
2014 WL 1316773 at *6 (S.D.N.Y. Mar. 28, 2014) (applying
New York's three-year statute of limitations to claims under
Title II of the ADA and Rehabilitation Act). Claims under the
Rehabilitation Act also accrue when the plaintiff knew or had
reasons to know of the injury giving rise to his claims. See
Hogan, 738 F.3d at 518; see also Stropkay, 593 F. App'x at
41; Harris, 186 F.3d at 247; Best, 2014 WL 1316773, at *5.
The Court, however, grants Plaintiff leave to assert in an
amended complaint any facts suggesting that he was subject
to discrimination because of his disability. If Plaintiff chooses
to plead a disability based claim under the Rehabilitation
Act, he must allege facts satisfying the pleading standards

discussed above, including identifying his alleged disability,
and showing that equitable tolling should apply. Plaintiff
should also note that the appropriate defendant for his
Rehabilitation Act claim would be the government entity that
he alleges violated his rights. 10
D. Leave to Amend
Plaintiff proceeds in this matter without the benefit of
an attorney. District courts generally should grant a selfrepresented plaintiff an opportunity to amend a complaint to
cure its defects unless amendment would be futile. See Hill v.
Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second
Circuit has cautioned that district courts “should not dismiss
[a pro se complaint] 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.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.
1999)). Because Plaintiff may be able to allege additional
facts suggesting viable claims, the Court grants Plaintiff 60
days' leave to replead his claims in an amended complaint.
Specifically, Plaintiff is granted leave to submit an amended
complaint in which he allege facts: (1) showing that he
exhausted a claim under the FTCA against the United States
by filing an administrative claim with the appropriate agency;
(2) in support of a Rehabilitation Act claim arising from
the officers' alleged failure to accommodate his disability or
otherwise discriminatory conduct during the incident at the
40 Foley Square courthouse; (3) in support of state law claims
against CSOs or their private employer; and (4) suggesting
that his untimely claims should be equitably tolled.
*7 Plaintiff is granted leave to amend his complaint to
assert viable claims. In the “Statement of Claim” section
of the section amended complaint form, Plaintiff must
provide a short and plain statement of the relevant facts
supporting each claim against each defendant. If Plaintiff has
an address for any named defendant, Plaintiff must provide
it. Plaintiff should include all of the information in the
amended complaint that Plaintiff wants the Court to consider
in deciding whether the amended complaint states a claim for
relief and is timely filed. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each
defendant did or failed to do, the approximate date and

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4

Ruiz v. Federal Police Department, Slip Copy (2023)

time of each event, and the general location where each
event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages,
injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the
Court: who violated his federally protected rights and how;
when and where such violations occurred; and why Plaintiff
is entitled to relief.

cause to excuse such failure, the Court will direct the Clerk of
Court to enter judgment consistent with this order.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Attachment

Because Plaintiff's amended complaint will completely
replace, not supplement, the amended complaint, any facts or
claims that Plaintiff wants to include from the complaint must
be repeated in the amended complaint.
Plaintiff may consider contacting the New York Legal
Assistance Group's (“NYLAG”) Clinic for Pro Se Litigants
in the Southern District of New York, which is a free legal
clinic staffed by attorneys and paralegals to assist those who
are representing themselves in civil lawsuits in this court. The
clinic is run by a private organization; it is not part of, or run
by, the court. It cannot accept filings on behalf of the court,
which must still be made by any pro se party through the Pro
Se Intake Unit. A copy of the flyer with details of the clinic
is attached to this order.

CONCLUSION
The Court construes Plaintiff's claims as brought against
the United States, and directs the Clerk of Court to replace
Defendant Federal Police Department with the United States
of America under Fed. R. Civ. P. 21.
The Court dismisses the complaint for failure to state a claim
and as barred under the doctrine of sovereign immunity. See
28 U.S.C. § 1915(e)(2)(B)(ii), (iii).
The Court grants Plaintiff 60 days' leave to file an amended
complaint that complies with the standards set forth above.
Plaintiff must submit the amended complaint to this Court's
Pro Se Intake Unit within 60 days of the date of this order,
caption the document as a “Amended Complaint,” and label
the document with docket number 23-CV-7421 (LTS). An
Amended Civil Rights Complaint form is attached to this
order. No summons will issue at this time. If Plaintiff fails to
comply within the time allowed, and he cannot show good
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5

Ruiz v. Federal Police Department, Slip Copy (2023)

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6

Ruiz v. Federal Police Department, Slip Copy (2023)

All Citations
Slip Copy, 2023 WL 6610762

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7

Ruiz v. Federal Police Department, Slip Copy (2023)

Footnotes
1

The Court quotes from the complaint verbatim, and all spelling, grammar, and punctuation are as in the
original, unless noted otherwise.

2

Plaintiff filed a separate complaint against the federal courthouse and Judge Valerie Caproni arising from the
same January 2018 incident. Ruiz v. U.S. Fed. Courthouse 40 Foley Square #104, ECF 1:23-CV-7416, 1
(S.D.N.Y. filed Aug. 18, 2023). He also recently filed four other pro se complaints. See Ruiz v. Parkchester
Pub. Safety Dep't, ECF 1:23-CV-7423, 1 (S.D.N.Y. filed Aug. 21, 2023); Ruiz v. City of New York Comm'n on
Hum. Rts., ECF 1:23-CV-7422, 1 (S.D.N.Y. filed Aug. 21, 2023); (S.D.N.Y. filed Aug. 18, 2023); Ruiz v. HJ
Family Corp., ECF 1:23-CV-7385, 1 (UA) (S.D.N.Y. filed Aug. 18, 2023); Ruiz v. N.Y.C. Police Dep't, 43rd
Pct., ECF 1:23-CV-7386, 1 (S.D.N.Y. filed Aug. 18, 2023) Plaintiff also filed an employment discrimination
case in this court that was recently dismissed. See Ruiz v. Keratin Bar, ECF 1:17-CV-2216, 182 (S.D.N.Y.
Aug. 10, 2023) (dismissing complaint without prejudice for failure to prosecute).

3

Security at the entrance of federal courthouses is normally provided by CSOs, who are employed by private
security companies. See https://www.usmarshals.gov/what-we-do/judicial-security (last visited Sept. 5, 2023)
(“Are the security officers who staff the entrance of the federal courthouse deputy U.S. Marshals? No. The
entrance station of a federal courthouse is staffed by Court Security Officers (CSOs), highly-trained men and
women who are employed by private security companies awarded a security contract by the U.S. Marshals
Service.”).

4

To state a claim for relief under Bivens, a plaintiff must allege facts that plausibly show that: (1) the challenged
action was attributable to an officer acting under color of federal law, and (2) such conduct deprived him of
a right, privilege, or immunity secured by the Constitution. See Thomas v. Ashcroft, 470 F.3d 491, 496 (2d
Cir. 2006) (citing Bivens, 403 U.S. at 389).

5

The United States Supreme Court has recognized implied causes of action under Bivens in three contexts:
(1) unreasonable search and seizure under the Fourth Amendment, Bivens, 403 U.S. 388 (1971); (2)
employment discrimination under the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442
U.S. 228 (1979); and (3) inadequate medical treatment of a convicted prisoner under the Eighth Amendment,
Carlson v. Green, 446 U.S. 14 (1980). After deciding these three cases, the Supreme Court “made [it] clear
that expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S. Ct. 1843,
1857 (2017), and that a Bivens remedy is not available, “where there are ‘special factors counselling hesitation
in the absence of affirmative action by Congress,’ ” Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017)
(quoting Carlson, 446 U.S. at 18). Under Ziglar, unless a Bivens claim bears some resemblance to one of the
three types of Bivens claims previously recognized by the Supreme Court, a court must hold that the claim
constitutes a new Bivens context. 137 S. Ct. 1843, 1860 (2017). More recently, the Supreme Court held that,
even if a court finds that a case presents “parallel circumstances” with the three prior cases recognizing a
Bivens remedy, a court may not find a Bivens remedy unless it also decides that there is no rational reason
to think that Congress is better equipped to create such a remedy. See Egbert v. Boule, 142 S. Ct. 1793,
1805 (2022) (holding in the context of a Fourth Amendment claim under Bivens that “superficial similarities
are not enough to support the judicial creation of a cause of action”).
“Courts have consistently found that excessive force cases arising under either the Fifth or Eighth Amendment
to present new Bivens contexts.” Edwards v. Gizzi, No. 20-CV-7371, 2022 WL 309393, at *6 (S.D.N.Y. Feb.
2, 2022) (holding that plaintiff's excessive force claim against Deputy U.S. Marshals for breaking his arm in
the courtroom amidst sentencing hearing presented a new Bivens context “whether it arises under the Fifth
or Eighth Amendment”); see also Rivera v. Samilo, 370 F. Supp. 3d 362, 369 (E.D.N.Y. 2019) (holding that
an excessive
claim Reuters.
stemmingNofrom
lawful
arrest U.S.
is sufficiently
different
from Fourth Amendment claim
8
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Thomson
claim
to original
Government
Works.

Ruiz v. Federal Police Department, Slip Copy (2023)

arising from a home search); Ramirez v. Tatum, No. 17-CV-7801, 2018 WL 6655600, at *5 (S.D.N.Y. Dec.
19, 2018) (declining to find Bivens remedy where the plaintiff, a pretrial detainee, alleged that correctional
officers used excessive force when transporting him from the hospital to the jail).
6

Bivens does not authorize suit against a private corporation or its employees – even corporations that perform
traditionally governmental functions. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (declining
to infer a Bivens remedy “for damages against private entities acting under color of federal law”); Minneci
v. Pollard, 565 U.S. 118, 120 (2012) (courts cannot “imply the existence of an Eighth Amendment-based
damages action (a Bivens action) against employees of a privately operated federal prison.”).
If Plaintiff seeks to bring claims against CSOs or their employer, a private entity hired as a federal contractor
by the USMS, his claims likely cannot proceed under Bivens. See Komatsu v. United States, No. 21-CV-1838,
2023 WL 317326, at *6 (S.D.N.Y. Jan. 19, 2023) (claims asserted against privately employed CSOs and their
employer cannot proceed under Bivens). Alternatively, if Plaintiff seeks to bring state law tort claims such as
assault and battery against CSOs and their employer and has another viable federal claim, the Court could
exercise supplemental jurisdiction of such claims under 28 U.S.C.§ 1367.

7

Though, typically, “the Bivens question ... is ‘antecedent’ to the other questions presented,” Hernandez v.
Mesa, 137 S. Ct. 2003, 2006 (2017) (citing Wood v. Moss, 134 S. Ct. 2056, 2066 (2014)), the Supreme
Court has endorsed “disposing of a Bivens claim by resolving the constitutional question, while assuming the
existence of a Bivens remedy,” id. at 2007.

8

Because the failure to file an action within the limitations period is an affirmative defense, a plaintiff is generally
not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007).
Dismissal is appropriate, however, where the existence of an affirmative defense, such as the statute of
limitations, is plain from the face of the pleading. See Walters v. Indus. and Com. Bank of China, Ltd., 651 F.3d
280, 293 (2d Cir. 2011); see also Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal
under 28 U.S.C. § 1915(d) on statute of limitations grounds). A district court should generally grant notice
and opportunity to be heard, however, before dismissing a complaint sua sponte on statute of limitations
grounds. Abbas, 480 F.3d at 640.

9

The doctrine of equitable tolling permits a court, “under compelling circumstances, [to] make narrow
exceptions to the statute of limitations in order ‘to prevent inequity.’ ” In re U.S. Lines, Inc., 318 F.3d 432,
436 (2d Cir. 2003) (quoting Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 233 (2d Cir. 2000)). The
statute of limitations may be equitably tolled when a defendant fraudulently conceals from a plaintiff the fact
that the plaintiff has a cause of action, or when the plaintiff is induced by the defendant to forego a lawsuit
until the statute of limitations has expired. See Pearl, 296 F.3d at 82-83. New York also provides by statute
for other circumstances in which a limitations period may be tolled. See, e.g., N.Y. C.P.L.R. §§ 204, 204(a),
207(3), 208.

10

Courts have held that the Rehabilitation Act does not provide for liability of individuals in their individual
capacities. See, e.g., Goe v. Zucker, 43 F.4th 19, 35 (2d Cir. 2022); Garcia v. S.U.N.Y. Health Scis. Ctr. of
Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).

End of Document

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9

Phipps v. United States, Not Reported in Fed. Supp. (2021)

2021 WL 5534701
Only the Westlaw citation is currently available.
United States District Court, N.D. West Virginia.
Herbert PHIPPS, Plaintiff,
v.
UNITED STATES of America Defendant.
Civil Action No. 1:21cv105
|
Signed 08/16/2021
Attorneys and Law Firms
Herbert Phipps, Bruceton Mills, WV, Pro Se.

REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE
JUDGE
I. Introduction
*1 On July 30, 2021, the pro se Plaintiff, an inmate at
USP Hazelton in Bruceton Mills, West Virginia initiated this
case by filing a complaint pursuant to the Federal Tort Claim
Act (“FTCA”). ECF No. 1. With his complaint, Plaintiff
filed a Motion for Leave to Proceed in Forma Pauperis with
supporting documents. ECF Nos. 2, 3, 4.
This matter is before the undersigned for an initial review and
report and recommendation pursuant to LR PL P 2, and 28
U.S.C. § 1915(A).

II. The Complaint
In his complaint, Plaintiff alleges that on February 12, 2018,
he was sent on a writ to Terre Haute, Indiana, but that in order
to get there, had to go to the Bureau of Prisons’ (“BOP”)
Oklahoma Transfer Center, where he arrived on March 28,
2018 [ECF No. 1 at 6; elsewhere, Plaintiff states he arrived
on March 23, 2018. See ECF No. 1-1 at 4]. However, because
the BOP transit center was overcrowded, he was sent to a
“subcontracted prison of the FBOP Grady County Jail” in
Chickasha, Oklahoma. ECF No. 1-1 at 4. He contends that as
he stepped off the BOP's bus, he was instructed to step down

on a “log of wood” that was “faulty and dangerous,” and he
fell, injuring his back and legs and hitting his head. Id. He
avers that he still has “extreme pain and discomfort” and now
has constant trembling in his hands. Id. Plaintiff contends he
now suffers from post-traumatic stress disorder (“PTSD”) and
depression, and is nowhere near as active as he formerly was,
and that he is now afraid to step up/down off any object, steps,
or obstacles. ECF No. 1 at 9.
Plaintiff's complaint indicates that he filed a Standard Form
95 administrative tort claim, but in response to the question
asking him to identify the type of written claim he filed,
he stated “BP-11 to Central Office – WDC” on March 1,
2021. Id. at 4. Attached to Plaintiff's complaint are copies of
administrative grievances filed with responses thereto [ECF
Nos. 1-1 at 1 – 33], but Plaintiff did not attach a copy of any
Standard Form 95 administrative tort claim nor a copy of any
denial letter for the same. As relief, he seeks $2,000,000.00
for the “permanent” damaged incurred in the fall. ECF No.
1 at 9.

III. Standard of Review
Because Plaintiff is a prisoner seeking redress from a
governmental entity or employee, the Court must review the
complaint to determine whether it is frivolous or malicious.
Pursuant to 28 U.S.C. § 1915A(b), the Court is required to
perform a judicial review of certain suits brought by prisoners
and must dismiss a case at any time if the Court determines
that the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief.
A complaint is frivolous if it is without arguable merit either
in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). However, the Court must read pro se allegations
in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520
(1972). A complaint which fails to state a claim under Fed. R.
Civ. P. 12(b)(6) is not automatically frivolous. See Neitzke,
490 U.S. at 328. Frivolity dismissals should only be ordered
when the legal theories are “indisputably meritless,” 1 or
when the claims rely on factual allegations which are “clearly
baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). This
includes claims in which the plaintiff has little or no chance
of success. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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1

Phipps v. United States, Not Reported in Fed. Supp. (2021)

IV. Analysis
*2 It is well-established that the United States is immune
from suit unless it consents to be sued. See United States
v. Testan, 424 U.S. 392 (1976). However, the FTCA waives
the federal government's traditional immunity from suit for
claims based on the negligence of its employees. 28 U.S.C.
§ 1346(b)(1). Specifically, “[t]he statute permits the United
States to be held liable in tort in the same respect as a private
person would be liable under the law of the place where
the act occurred.” Medina v. United States, 259 F.3d 220,
223 (4th Cir. 2001). Nonetheless, the FTCA only waives
the government's sovereign immunity if certain terms and
conditions are met. Honda v. Clark, 386 U.S. 484 (1967). One
of those conditions is that an FTCA action be filed within two
years of the incident or within six months of the final claim
denial. 28 U.S.C. § 2401(b). The provisions of the FTCA are
found in Title 28 of the United States Code. 28 U.S.C. §§
1346(b), 1402(b), 2401(b), and 2671-2680.
The failure of a plaintiff to exhaust his administrative
remedies prior to filing suit deprives a court of subject matter
jurisdiction. See McNeil v. United States, 508 U.S. 106
(1993); Plyer v. United States, 900 F.2d 41 (4th Cir. 1990). In
addition, a court is not allowed to hold the case in abeyance
until a plaintiff presents an administrative tort claim with the
appropriate agency, and the six-month time period expires.
See 28 U.S.C. § 2675. As the Fourth Circuit noted, “[s]ince
the district court has no jurisdiction at the time the action was
filed, it could not obtain jurisdiction by simply not acting on
the Motion to Dismiss until the period had expired.” Plyer,
900 F.2d at 42 (citation omitted).

as well. So, on April 8, 2021, I filed a
BP-10 to the Southeast Region of the
FBOP. There [sic] response came back
April 13, 2021. Their excuse was that
they denied the BP-10, because I never
filed a BP-8 or BP-9?

See ECF No. 1-1 at 5. Plaintiff avers that he filed a BP-8, a
BP-9, a BP-10, and a BP-11. See ECF No. 1 at 3. Plaintiff
attaches a November 27, 2019 Informal Resolution form
(BP-8), alleging the fall at the Grady County Jail; saying
he hurt his legs, lower and upper back, and that his hands
tremble all the time now because of “nerve damage.’ ECF
No. 1-1 at 28. Next, he attaches another BP-8 Informal
Resolution form, this one dated April 26, 2021, raising the
claim again. ECF No 1-1 at 29. He received an April 28,
2021 response from staff, saying “Counselor states file tort
claim. Must file tort claim.” ECF No. 1-1 at 30 (emphasis
added). Plaintiff also attaches a March 1, 2021 BP-9 that
was received by the Warden on April 4, 2021 and assigned
Remedy ID 1078749-F1. ECF No. 1-1 at 32. He attaches
an April 29, 2021 Rejection Notice, saying his Remedy ID
1078749-F1 request for monetary damage is denied but that
“you may submit a tort claim for monetary compensation,
but this incident did not occur at a BOP facility.” ECF No.
1-1 at 17 (emphasis added). Plaintiff also attaches an undated
Central Office Administrative Remedy Appeal that includes
no response [ECF No. 1-1 at 11] and a copy of a May 11, 2021
Regional Administrative Remedy Appeal. See ECF No. 1-1
at 19. The response to it is blank and/or illegible. See ECF
No. 1-1 at 20.

Plaintiff states that upon his return to USP Hazelton in
November 2019, he “immediately” filed a BP-8, but that no

*3 Although Plaintiff filed administrative grievances, there
is no evidence in the record to show that Plaintiff ever
presented a Standard Form 95 administrative tort claim to
the appropriate agency within two years from the date of the
event, the initial requisite to proceed on a FTCA claim. The
pro se law clerk assigned to this case contacted the BOP on
August 2, 2021 and received verification that Plaintiff never
filed a Standard Form 95 over the claims at issue in the
complaint.

response ever came back for (2) years
running? That's when on 3/1/21 I
decided to follow it up with a BP-9
with USP Hazelton's warden. Again no
response was ever given on the BP-9

Plaintiff's fall occurred on either March 23, 2018 or March
28, 2018; as such, he was required to file a Standard Form
95 administrative tort claim within two years of either of
those dates, or by March 23, 2020 or March 28, 2020. This
he failed to do, despite having been twice advised in the
denials of his administrative remedies that he needed to “file

Here, Plaintiff has attached to his complaint a copy of an April
26, 2021 letter from “Counselor W. Barr D-1,” “to whom it
may concern,” averring that Plaintiff was “on a Federal Writ
from USP Hazelton Starting January 30, 2018 until April 2,
2018.” ECF No. 1-1 at 18.

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2

Phipps v. United States, Not Reported in Fed. Supp. (2021)

a tort claim.” See ECF No. 1-1 at 30; see also ECF No. 1-1
at 17. Had he submitted a Standard Form 95 administrative
tort claim as required and received a final denial letter, he
would then have had six months from the date of the denial to
bring suit in federal court. 2 However, Plaintiff never filed a
Standard Form 95 administrative tort and did not initiate the
instant action until July 30, 2021. Therefore, Plaintiff's claim
is clearly time-barred.
Because the FTCA waives the United States traditional grant
of sovereign immunity, the statute must be strictly construed.
United States v. Kubrick, 444 U.S. 111, 117B18 (1979). Put
simply, because the United States may not be sued without its
permission, the Court may not take it upon itself “to extend the
waiver beyond that which Congress intended.” Id. Therefore,
“[i]f an action is not filed as the statute requires, the six-month
time period may not be extended” by the Court. Tuttle v.
United States Postal Service, 585 F.Supp. 55 (M.D. Pa. 1983)
(citing United States v.Kubrick 444 U.S. 111, 117B18)).
The undersigned recognizes that the United States Supreme
Court has held that the FTCA's statute of limitations is a
procedural, not jurisdictional bar. United States v. Kwai Fun
Wong, 135 S.Ct. 1625, 1627 (2015). Accordingly, equitable
tolling is applicable to FTCA's statute of limitation. However,
equitable tolling in suits against the United States is only
available in exceptional circumstances. See Muth v. United
States, 1 F.3d 246, 251 (4th Cir. 1993). More specifically,
the Fourth Circuit has stated that equitable tolling principles
are appropriate only “where the defendant has wrongfully
deceived or mislead the plaintiff in order to conceal the
existence of a cause of action.” Kokotis v. United States
Postal Service, 223 F.3d 275, 280B81 (4th Cir. 2000) (quoting
English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.
1987)).
Nonetheless, here, the BOP twice clearly informed Plaintiff
that he needed to file a tort claim to proceed. Plaintiff
was not misled by the agency, nor did the agency make
any misrepresentations. Plaintiff's lack of diligence in filing
a Standard Form 95 administrative tort claim within the
requisite two-year time period of his injury does not comport
with a finding of equitable tolling. Because he never filed
a Standard Form 95 administrative tort claim, this Court
lacks subject matter jurisdiction over his claims. The plaintiff
bears the burden of establishing this court's jurisdiction to
entertain his FTCA. However, the record, including the
exhibits submitted to the Court with Plaintiff's complaint do
not support a finding that he submitted a Standard Form 95

administrative tort claim within two years of the date of his
injury. Rather, the weight of the evidence establishes that he
never submitted such a claim at all. Therefore, not only are
his claims untimely, this Court lacks jurisdiction to consider
his FTCA.

V. Recommendation
*4 In consideration of the foregoing, it is the undersigned's
recommendation that Plaintiff's complaint under the FTCA
be DISMISSED without prejudice because this Court lacks
subject matter jurisdiction and further, the claims are barred
by the statute of limitations. It is further recommended that
Plaintiff's Motion to Proceed in forma pauperis [ECF No. 2]
be DENIED as moot.
The plaintiff shall have fourteen days from the date of
entry of this Report and Recommendation within which to
file with the Clerk of this Court, specific written objections,
identifying the portions of the Report and Recommendation
to which objection is made, and the basis of such objection. A
copy of such objections should also be submitted to the United
States District Judge. Objections shall not exceed ten (10)
typewritten pages or twenty (20) handwritten pages, including
exhibits, unless accompanied by a motion for leave to exceed
the page limitations, consistent with LR PL P 12.
Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the District Court
and a waiver of appellate review by the Circuit Court of
Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766
F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d
91 (4th Cir. 1984).
The Clerk is DIRECTED to send a copy of this Report and
Recommendation to the pro se plaintiff by certified mail,
return receipt requested, to his last known address as shown
on the docket.
In addition, because this Report and Recommendation
completes the referral from the District Court, the Clerk is
DIRECTED to terminate the Magistrate Judge association
with this case.
All Citations
Not Reported in Fed. Supp., 2021 WL 5534701

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3

Phipps v. United States, Not Reported in Fed. Supp. (2021)

Footnotes
1

Id. at 327.

2

Title 28 U.S.C. ‘2401(b) specifically states:
A tort claim against the United States shall be forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim accrues or unless action is begun within six
months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the
agency to which it was presented.

End of Document

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4

Phipps v. United States, Not Reported in Fed. Supp. (2021)

2021 WL 4739497
Only the Westlaw citation is currently available.
United States District Court, N.D. West Virginia,
Clarksburg.
Herbert PHIPPS, Plaintiff,
v.
UNITED STATES of America, Defendant.
CASE NO: 1:21-CV-105
|
Signed 10/12/2021
Attorneys and Law Firms
Herbert Phipps, Bruceton Mills, WV, Pro Se.

ORDER ADOPTING REPORT
AND RECOMMENDATION
JOHN PRESTON BAILEY, UNITED STATES DISTRICT
JUDGE
*1 The above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Michael John Aloi [Doc. 7]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Aloi for submission of a proposed report
and recommendation (“R&R”). Magistrate Judge Aloi filed
his R&R on August 16, 2021, wherein he recommends the
plaintiff's complaint under the FTCA be dismissed without
prejudice. For the reasons that follow, this Court will adopt
the R&R.

STANDARDS OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required
to make a de novo review of those portions of the magistrate
judge's findings to which objection is made. However, the
Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate
judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn, 474
U.S. 140, 150 (1985). Nor is this Court required to conduct
a de novo review when the party makes only “general
and conclusory objections that do not direct the court to
a specific error in the magistrate's proposed findings and

recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal this Court's
Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d
1363, 1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984). Pro se filings must be liberally
construed and held to a less stringent standard than those
drafted by licensed attorneys, however, courts are not required
to create objections where none exist. Haines v. Kerner, 404
U.S. 519, 520 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1971).
Here, objections to Magistrate Judge Aloi's R&R were due
within fourteen (14) days of receipt, pursuant to 28 U.S.C.
§ 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure. Plaintiff filed his Objections to the R&R [Doc. 9]
on September 7, 2021. Accordingly, this Court will review the
portions of the R&R to which objection was filed under a de
novo standard of review. The remainder of the R&R will be
reviewed for clear error.

BACKGROUND
In his complaint, plaintiff alleges that on February 12, 2018,
he was sent on a writ to Terre Haute, Indiana, but that
in order to get there, he was first transported to the BOP
Oklahoma Transfer Center. [Doc. 1 at 6]. However, because
the BOP transit center was overcrowded, plaintiff was sent
to a “subcontracted prison of the FBOP Grady County Jail”
in Chickasha, Oklahoma. [Doc. 1-1 at 4]. Plaintiff contends
that as he stepped off the BOP's bus, he was instructed to step
down on a “log of wood” that was “faulty and dangerous,”
and he fell, injuring his back, legs, and head. [Id.]. Plaintiff
avers he still suffers from “extreme pain and discomfort” and
now has constant trembling in his hands. [Id.]. Further, he
contends he now suffers from PTSD and depression, has lost
activity levels, and has fear to ambulate on steps or obstacles.
[Doc. 1 at 9].
*2 Plaintiff's complaint indicates that he filed a Standard
Form 95 administrative tort claim. [Id. at 4]. However,
plaintiff did not attach a copy of any Standard Form 95
administrative tort claim, nor a copy of any denial letter
concerning the same. Plaintiff seeks $2,000,000.00 for relief.
[Id. at 9].

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1

Phipps v. United States, Not Reported in Fed. Supp. (2021)

DISCUSSION
Here, Magistrate Judge Aloi found that although plaintiff
had filed administrative grievances, there is no evidence in
the record to show that plaintiff ever presented a Standard
Form 95 administrative tort claim to the appropriate agency
within two years from the date of plaintiff's alleged injury–
the prerequisite to proceed on an FTCA claim. In fact, the
pro se law clerk assigned to this case contacted the BOP
on August 2, 2021, and received verification that plaintiff
never filed a Standard Form 95 concerning the claims at issue
in the complaint. As such, Magistrate Judge Aloi ultimately
concluded that plaintiff's claims were not only untimely,
but that this Court lacks jurisdiction to consider the FTCA
complaint due to plaintiff's failure to exhaust. See [Doc. 7 at
4–7].
In his objections, plaintiff admits he never filed a Standard
Form 95 concerning the claims at issue. [Doc. 9 at 1]. By way
of explanation for his failure to exhaust, plaintiff avers that
he is a “layman unlettered to the law” and asks this Court to
excuse the fact that plaintiff did not exhaust the prerequisite
administrative remedies required to pursue his claims. [Id.].
This Court cannot do so in these circumstances. Plaintiff's
fall occurred in March 2018. As such, he was required to
file a Standard Form 95 administrative tort claim within two
years. Had he submitted a Standard Form 95 administrative
tort claim as required and received a final denial letter, he
would then have had six months from the date of the denial
to bring suit in federal court. However, plaintiff did not file
a Standard Form 95 administrative tort claim and did not
initiate the instant action until July 30, 2021.

States Postal Service, 223 F.3d 275, 280–81 (4th Cir. 2000)
(quoting English v. Pabst Brewing Co., 828 F.2d 1047, 1049
(4th Cir. 1987)). Here, as noted by Magistrate Judge Aloi, the
BOP actually informed plaintiff that he needed to file a tort
claim to proceed on two occasions. See [Doc. 7 at 6]. For
these reasons, upon review of plaintiff's objections even when
construing them with a deferential view benefitting the pro se
litigant, plaintiff's objections must be overruled.

CONCLUSION
Having found no clear error in the remainder of the magistrate
judge's well-reasoned review of the pleadings, plaintiff's
objections [Doc. 9] are OVERRULED, and it is the opinion
of this Court that the Report and Recommendation [Doc. 7]
should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge's report.
Accordingly, this Court ORDERS that the complaint [Doc. 1]
be DENIED and DISMISSED WITHOUT PREJUDICE.
*3 Further, plaintiff's Motion to Proceed in forma pauperis
[Doc. 2] is DENIED AS MOOT.
This Court further directs the Clerk to STRIKE this matter
from the active docket of this Court.
It is so ORDERED.

Attachment

Because the FTCA waives the United States' traditional grant
of sovereign immunity, the statute must be strictly construed.
United States v. Kubrick, 444 U.S. 111, 117–18 (1979). Put
simply, because the United States may not be sued without its
permission, the Court may not take it upon itself “to extend
the waiver beyond that which Congress intended.” Id.
Moreover, equitable tolling in suits against the United States
is only available in exceptional circumstances. See Muth
v. United States, 1 F.3d 246, 251 (4th Cir. 1993). More
specifically, the Fourth Circuit has stated that equitable tolling
principles are appropriate only “where the defendant has
wrongfully deceived or mislead the plaintiff in order to
conceal the existence of a cause of action.” Kokotis v. United

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2

Phipps v. United States, Not Reported in Fed. Supp. (2021)

All Citations
Not Reported in Fed. Supp., 2021 WL 4739497
End of Document

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3

Jaghama v. U.S., Not Reported in F.Supp.2d (2013)

2013 WL 508497
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Omran JAGHAMA, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 11–cv–5826.
|
Feb. 11, 2013.
Attorneys and Law Firms
Marina Trubitsky, Law Office of Marina Trubitsky, New
York, NY, for Plaintiff.
Timothy D. Lynch, United States Attorneys Office, Brooklyn,
NY, for Defendant.

ORDER
GERSHON, District Judge.
*1 Plaintiff seeks to recover damages from the United
States 1 for personal injuries sustained in an automobile
collision with a United States Department of Justice (“DOJ”)
vehicle. Defendant has moved to dismiss the complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack
of subject matter jurisdiction, asserting that plaintiff failed to
comply with the jurisdictional prerequisites set forth in the
Federal Tort Claims Act (“FTCA”), codified at 28 U.S.C.
§§ 1346(b), 2401(b), and 2671–80. For the reasons set forth
below, defendant's motion to dismiss is granted.

FACTS
The following facts are alleged in the Complaint and are
accepted as true for the purposes of this motion:
On June 11, 2008, Jonathan May, an employee of the United
States Department of Justice, was driving a governmentowned vehicle on Staten Island. Because of negligence by
both May and the DOJ, May's vehicle collided with a motor
vehicle driven by the plaintiff. As a result, plaintiff suffered
physical and economic injuries.

Plaintiff subsequently filed a lawsuit in the New York
Supreme Court, Kings County, on June 10, 2011. Defendant
removed the case to this court on November 30, 2011.
Plaintiff's complaint is silent with respect to the exhaustion
of administrative remedies. In opposition to the motion to
dismiss, plaintiff proffers a completed administrative tort
claim standard form (“SF–95”). The form, dated August
22, 2008, states the basis of the claim, the nature of the
injury, the amount of damages claimed for personal injury,
and is addressed to “OSJA Claims, Attn: Torts–B, Bldg 275,
1336 Plummer St., Monterey, CA 93944–3327.” Plaintiff
represents in his reply brief that this form was mailed to the
DOJ at this address on March 22, 2010, but he provides no
return receipt or other evidentiary confirmation that this form
was mailed or received.
Defendant submitted a declaration from a DOJ paralegal who
is responsible for reviewing administrative claims made to the
DOJ. It submitted a second declaration from an attorney with
the Department of the Army, responsible for reviewing and
processing all claims that are submitted to the office listed on
plaintiff's SF–95. Both declarations state that, after review, the
files at their respective agencies contain no record of a notice
of claim from plaintiff.

DISCUSSION
“A case 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.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).
In considering a motion to dismiss under Rule 12(b)(1), the
court must take as true all facts alleged in the complaint
and draw all reasonable inferences in the plaintiff's favor.
Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000). Where a
question of subject matter jurisdiction turns on a factual issue,
however, a district court may refer to evidence outside the
pleadings. Makarova, 201 F.3d at 113. A plaintiff asserting
subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists. Id.
*2 The United States, as sovereign, “ ‘is immune from suit
save as it consents to be sued ..., and the terms of its consent
to be sued in any court define that court's jurisdiction to
entertain the suit.’ “ Id. (quoting United States v. Mitchell,
445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)).

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1

Jaghama v. U.S., Not Reported in F.Supp.2d (2013)

The doctrine of sovereign immunity is jurisdictional in nature.
Id. The FTCA waives the sovereign immunity of the United
States for certain classes of tort claims. See Celestine v. Mount
Vernon Neighborhood Health Center, 403 F.3d 76, 80 (2d
Cir.2005). The FTCA provides the federal district courts with
exclusive jurisdiction over damages claims against the United
States for injury or loss of property, or for personal injury or
death caused by the negligent or wrongful act or omission
of any employee of the government while acting within the
scope of his office or employment. Id. As a prerequisite
to federal court jurisdiction, the FTCA requires complete
exhaustion of administrative remedies by a claimant. The
statute provides that “[a] tort claim against the United States
shall be forever barred unless it is presented in writing to
the appropriate Federal agency within two years after such
claim accrues or unless action is begun within six months after
the date of mailing, by certified or registered mail, of notice
of final denial of the claim by the agency to which it was
presented.” 28 U.S.C. § 2401(b). A claimant may not institute
a lawsuit “unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing and sent
by certified or registered mail.” 28 U.S.C. § 2675(a); see also
28 C.F.R. § 14.2(a) (“For purposes of the provisions of 28
U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to
have been presented when a Federal agency receives from a
claimant ... an executed Standard Form 95 ....”).

Second Circuit requires actual proof of receipt of notice).
Plaintiff here has not done so. He offers no proof of actual
receipt of the notice of claim by the DOJ. Indeed, plaintiff
offers less than what was held to be insufficient in Pinchasow.
Id. at 142–43. In Pinchasow, the plaintiff failed to satisfy
the FTCA's presentment requirement despite proffering an
affidavit that the notice of claim was timely sent via regular
mail to the appropriate agency. Id. at 143. Plaintiff here
provides only a copy of the SF–95, dated August 22, 2008,
along with a representation in his brief that the form was
mailed to the DOJ on March 22, 2010. He offers no evidence,
by declaration or otherwise, that the form was actually mailed
on March 22, 2010, much less received on time by the DOJ.

Defendant contends here that plaintiff failed to present a
timely notice of claim to the DOJ. Plaintiff points to the
proffered SF–95, purportedly mailed on March 22, 2010, and
argues that, if defendant cannot find “the appropriate record,
an issue of fact is created.” Plaintiff is incorrect.

CONCLUSION

A plaintiff must provide proof that his notice of claim
was received by the appropriate agency in the time and
manner prescribed by the FTCA or its implementing
regulations. Pinchasow v. United States, 408 F.Supp.2d
138, 143 (E.D.N.Y.2006), aff'd 2006 WL 3370714 (2d
Cir.2006); see Torres v. United States, 2008 WL 2157124,
*3 (E.D.N.Y.2008) (majority view among district courts in

*3 Although the failure to provide actual proof of receipt
is sufficient to grant the defendant's motion to dismiss, other
circumstances cast further doubt on whether the DOJ received
timely notice. More than eighteen months passed between
the date indicated on the form and the date of the purported
mailing, and the face of the form suggests that it may
have been sent, if at all, to the wrong agency. Contrary to
plaintiff's suggestion, there is no issue of fact—it is he, and
not the defendant, who must show the existence of subject
matter jurisdiction by demonstrating that he has exhausted
his administrative remedies, and he has failed to do so. 2 See
Makarova, 201 F.3d at 113.

For these reasons, plaintiff has not demonstrated that he has
exhausted his administrative remedies as required by the
FTCA, and therefore has not established that subject matter
exists here. Defendant's motion to dismiss is granted. The
Clerk of Court is directed to close this case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 508497

Footnotes
1

Initially, plaintiff named two defendants in this action: Jonathan B. May and the DOJ. Because the United
States Attorney's Office for the Eastern District of New York certified that Mr. May was a DOJ employee acting

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2

Jaghama v. U.S., Not Reported in F.Supp.2d (2013)

within the scope of his employment at the time of the incident, the United States has been substituted as the
defendant in May's place. 28 U.S.C. § 2679(d)(1); 28 C.F.R. 15.4. Plaintiff does not oppose the substitution.
2

Even if plaintiff's evidence created a rebuttable presumption of DOJ's receipt, here, as in Pinchasow,
defendant has provided sufficient evidence to rebut the presumption. See id., 408 F.Supp.2d at 143; see
Vecchio v. United States, 2005 WL 2978699, *3 (S.D.N.Y.2005) (questioning whether proof of mailing creates
a rebuttable presumption of receipt). It submitted two declarations, each stating that neither the DOJ nor
the Department of the Army, where plaintiff's claim was purportedly mailed, contained a record of receipt of
plaintiff's notice of claim.

End of Document

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3

Pinchasow v. U.S., Slip Copy (2006)

jurisdiction. We assume the parties' familiarity with the
underlying facts and procedural history of the case.

2006 WL 3370714
Only the Westlaw citation is currently available.
This case was not selected for
publication in the Federal Reporter.
United States Court of Appeals,
Second Circuit.
Gary M. PINCHASOW, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee,
United States Postal Service, Aaron Fletcher, Defendants.
No. 06-1139-CV.
|
Nov. 20, 2006.
Appeal from the United States District Court for the Eastern
District of New York (Gershon, J.).
Attorneys and Law Firms
Barry Richard Feldman, Brooklyn, NY, for PlaintiffAppellant.
Orelia E. Merchant, Assistant United States Attorney (Varuni
Nelson, Assistant United States Attorney, on the brief), for
Roslynn R. Mauskopf, United States Attorney for the Eastern
District of New York, Brooklyn, NY, for Defendant-Appellee.
Present ROBERT A. KATZMANN, RICHARD
WESLEY, PETER W. HALL and Circuit Judges.

C.

SUMMARY ORDER
*1 ON CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Plaintiff Gary Pinchasow seeks review of the district court's
grant of a motion to dismiss for lack of subject matter
End of Document

We review the district court's dismissal for lack of subject
matter jurisdiction de novo. Celestine v. Mount Vernon
Neighborhood Health Ctr., 403 F.3d 76, 79-80 (2d Cir.2005).
At issue in this case is whether plaintiff has exhausted his
administrative remedies, as is required before commencing an
action against the United States under the Federal Tort Claims
Act (“FTCA”). McNeil v. United States, 508 U.S. 106, 107
(1993). A claim is “deemed to have been presented when a
Federal agency receives from a claimant, his duly authorized
agent or legal representative, an executed Standard Form 95
or other written notification of an incident, accompanied by a
claim for money damages in a sum certain for injury to or loss
of property, personal injury or death alleged to have occurred
by reason of the incident.” 28 C.F.R. § 14.2.
Pinchasow never presented “written notification”
accompanied by a claim for “damages in a sum certain.”
His June 27, 2002 summons and complaint in the Supreme
Court of the State of New York, County of Queens, did
not constitute such notice because court documents alone do
not notify the agency that a claimant seeks administrative
relief. Cf. McNeil, 508 U.S. at 112. Furthermore, Pinchasow's
September 22, 2001 letter to the United States Postal Service
informing it that Pinchasow intended to bring an action for
personal injuries did not name a “sum certain.” Even if it
provided notice of the incident, as Pinchasow argues, it was
not “accompanied” by a specific claim for damages as found
in the summons and complaint, which was filed over ten
months later.
We have considered all of the plaintiff-appellant's remaining
arguments and find them to be without merit. The judgment
of the district court is therefore AFFIRMED.
All Citations
Slip Copy, 2006 WL 3370714
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1

Phillips v. United States, Not Reported in Fed. Supp. (2023)

2023 WL 6381428
Only the Westlaw citation is currently available.
United States District Court,
E.D. Missouri, Eastern Division.
Clint PHILLIPS, III, Plaintiff,
v.
UNITED STATES, et al., Defendants.
No. 4:23-CV-1209 SPM
|
Signed September 28, 2023

Plaintiff's History with the Court

Attorneys and Law Firms

Plaintiff is a frequent pro se and in forma pauperis litigator

Clint Phillips, III, St. Louis, MO, Pro Se.

OPINION, MEMORANDUM AND ORDER
HENRY EDWARD
DISTRICT JUDGE

AUTREY,

The term “ ‘frivolous,’ when applied to a complaint, embraces
not only the inarguable legal conclusion, but also the fanciful
factual allegation.” Id. While federal courts should not
dismiss an action commenced in forma pauperis if the facts
alleged are merely unlikely, the court can properly dismiss
such an action if the plaintiff's allegations are found to be
clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33
(1992). Allegations are clearly baseless if they are “fanciful,”
“fantastic,” or “delusional,” or if they “rise to the level of the
irrational or the wholly incredible.” Id.

UNITED

STATES

*1 This matter is before the Court upon the motion of
plaintiff Clint Phillips, for leave to proceed in forma pauperis
in this civil action. Upon consideration of the motion and the
financial information provided therein, the Court concludes
that plaintiff is unable to pay the filing fee. The motion will
therefore be granted. Additionally, for the reasons discussed
below, the Court will order plaintiff to show cause why this
action should not be dismissed.

Legal Standard on Initial Review
This Court is required to review a complaint filed in
forma pauperis to determine whether summary dismissal is
appropriate. See 28 U.S.C. § 1915(e). This Court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which relief
may be granted, or that seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
An action fails to state a claim upon which relief may be
granted if it does not plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). An action is frivolous
if it “lacks an arguable basis in either law or fact.” Neitzke v.
Williams, 490 U.S. 319, 328 (1989).

in this Court. 1 He describes himself as suffering from
Post-Traumatic Stress Disorder (PTSD) and Schizophrenia.
See Phillips v. Three Unknown Police Officers, No. 4:19CV-2922 RLW (E.D. Mo. filed Oct. 25, 2019). In this Court's
dismissal of a case plaintiff filed in 2022, the Court warned
him that the filing of frivolous lawsuits is an abuse of the
litigation process. See Phillips v. St. Louis County, No. 4:22CV-759 JAR (E.D. Mo. issued Oct. 19, 2022). Based on a
review of Court records, since that warning from the Court,
plaintiff filed at least seven (7) additional cases. Three of
those cases are currently pending with the Court.

The Complaint
*2 Plaintiff Clint Phillips filed the instant complaint on
September 26, 2023. He names the following as defendants
in this action: the United States of America; the United
States Postal Service; the VA Torts Law Group; and Kyle
Beesley. Plaintiff complains that in 2015 he applied for
disability benefits from the Department of Veterans Affairs
(VA) concerning the disabilities of “erectile dysfunction” and
“akathisia.” 2 He claims that he was not “awarded those
benefits” until April 19, 2023, 3 “making the contingency of
erectile dysfunction an official disability, and receiving an
SMC payment under 1114(k) for such, under Title 28 U.S.C.
2680(a), the Discretionary Function Exception.” Plaintiff
alleges that he had two years to initiate a claim under the
Federal Tort Claims Act (FTCA). Plaintiff does not specify
when he believes his statute of limitations began.
Specifically, plaintiff's allegation under the FTCA appears
to relate to his belief, which he has previously espoused

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1

Phillips v. United States, Not Reported in Fed. Supp. (2023)

in this Court, that he was told by his VA doctor, Laura
Fuchs, in December of 2015, that his erectile dysfunction
and akathisia were side effects of medications allegedly
prescribed to him by other VA doctors. Those medications
were purportedly: Zyprexa, Haldol, Invega (Sustenna) and
Risperidone (Risperdal). See Phillips v. United States, No.
4:21-CV-723 AGF (E.D. Mo. 2021).
Plaintiff purports in the current complaint, that he filed an
administrative complaint with the VA relative to his FTCA
claims, “reinforced with information from VA release of
information that stated that [H]aldol and Zyprexa caused me
to have ‘akathisia’ and Invega (Sustenna) caus[ed] sexual side
effects ...” He claims that although it took the VA more than
eighteen (18) months to answer his administrative complaint,
it ended in a “due process violation,” as well as Bivens claims
against several federal actors. Plaintiff, however, has failed
to attach the alleged VA administrative complaint, Agency
Decision, or provide the Court with any information relative
to his VA administrative process regarding his FTCA claims.
Plaintiff asserts that he also filed a claim with the Office
of General Counsel of the St. Louis Regional Office for an
unnamed agency, presumably the VA, for a “violation of due
process rights.” Although the private entity. the VA Torts Law
Group, told plaintiff that it believed he had a valid claim,
his claims were denied by the Office of General Counsel. 4
Although plaintiff claims he sent a motion for reconsideration
in the mail, he believes the United States Postal Service
discarded the mail making the postal service liable for the
loss of his motion for reconsideration. The Court, however,
is not entirely sure what plaintiff was purportedly attempting
to reconsider.
It appears that plaintiff wishes to sue the United States Postal
Service for the loss of his motion for reconsideration to
the Office of General Counsel. Additionally, he claims that
this Court has jurisdiction over his FTCA claims against the
United States despite not providing any information as to his
administrative process such as when it occurred, whom he
sued (specific defendants) under the FTCA, and whether he
litigated the statute of limitations issue in the administrative
process. As noted previously, plaintiff has also failed to
provide a copy of the Agency Decision to this Court.
*3 Additionally, plaintiff appears to sue the VA Torts Law
Group and an individual named Kyle Beesley in this action,
although he has not indicated why he is suing this private
entity and private individual.

Discussion
As set forth above, plaintiff appears to be bringing an action
under the FTCA against the United States of America,
pursuant to 28 U.S.C. § 2680(a) and (h). He also appears
to be suing the United States Postal Service, the VA Torts
Law Group and Kyle Beesley under either 42 U.S.C. § 1983
or Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). As currently pled, it does not appear that plaintiff has
jurisdiction to bring this action in Federal Court, as the Court
is unsure that plaintiff has properly exhausted his claims under
the FTCA. Additionally, the United States is not the proper
party to sue under the FTCA. Moreover, plaintiff fails to state
a claim against the remaining defendants. For the following
reasons, plaintiff will be required to show cause why this
action should not be dismissed.
“Generally, sovereign immunity prevents the United States
from being sued without its consent.” Iverson v. United
States, 973 F.3d 843, 846 (8th Cir. 2020). See also Hinsley
v. Standing Rock Child Protective Services, 516 F.3d 668,
671 (8th Cir. 2008) (stating that “[i]t is well settled that the
United States may not be sued without its consent”). Thus,
to sue the United States, a plaintiff must show a waiver of
sovereign immunity. See V S Ltd. Partnership v. Dep't of
Housing and Urban Development, 235 F.3d 1109, 1112 (8th
Cir. 2000). Such a waiver must be “unequivocally expressed”
and “cannot be implied.” See United States v. King, 395 U.S.
1, 4 (1969). See also College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999)
(stating that “in the context of federal sovereign immunity ...
it is well established that waivers are not implied”). There is
no indication that such a waiver is present in this action.
It is true that the Federal Tort Claims Act removes the
sovereign immunity of the United States from suits in tort.
See White v. United States, 959 F.3d 328, 332 (8th Cir. 2020)
(explaining that the “FTCA waives sovereign immunity and
allows the government to be held liable for negligent or
wrongful acts by federal employees committed while acting
within the scope of their employment”). To do so, however,
the plaintiff must first present his claim in writing to the
appropriate Federal Agency within two years after such claim
accrues unless the action is begun within six months after the
date of mailing, by certified or registered mail, of a notice
of final denial of the claim by the Agency to which it was
presented. See 28 U.S.C. § 2401(b).

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2

Phillips v. United States, Not Reported in Fed. Supp. (2023)

In this case, plaintiff states that he filed a tort claim with an
administrative agency, presumably with the VA, and that it
ended in a “due process violation,” as well as Bivens claims
against several federal actors. Plaintiff, however, has failed to
attach the alleged VA administrative complaint, or provide the
Court the final Agency Decision made by the VA. To ascertain
whether plaintiff is suing the proper parties in this Court or
if he is suing in a timely manner, the Court must have the
Agency Decision from the VA.
*4 Plaintiff should be mindful that the statute of limitations
provision in 28 U.S.C. § 2401(b) has been narrowly
construed, and a plaintiff must both file his administrative
claim within two years after accrual of the claim and file
his action in the District Court within six months of the
Agency's final action for jurisdiction to be proper. See Ellison
v. United States, 531 F.3d 359, 361 (6th Cir. 2008); see also,
Barnes v. United States, 776 F.3d 1134 (10th Cir. 2015). A
tort claim under the FTCA accrues “even if the claimant does
not know the precise medical reason for the injury, provided
that he knows or should know that some aspect of the medical
treatment caused the injury.” Hahn v. United States, 313 Fed.
Appx. 582, 585 (4th Cir. 2008). Plaintiff's tort claims appear
to be time-barred, as he states that he learned about the tort
claims as early as 2015.
Last, although plaintiff attempts to sue the United States
Postal Service, the VA Torts Law Group and an individual
named Kyle Beesley in this action, he fails to state a
claim regarding these individuals/entities. Plaintiff has not
identified who at the postal service he blames for negligently
losing his motion for reconsideration in the mail, and he
cannot sue under Bivens without naming a specific individual
and articulating a causal connection between the defendant
and the alleged violation of his constitutional rights. See
Frederick v. Motsinger, 873 F.3d 641, 646 (8th Cir. 2017)
(liability in a civil rights case is personal). 5 Similarly, he has
failed to identify Kyle Beesley or how he believes Beesley
violated his rights. Furthermore, to the extent he believes
the VA Torts Law Group acted in some way against him, he
cannot suffice to bring a claim against this entity under 42
U.S.C. § 1983 because this entity is not a state actor. 6
Accordingly, the Court will require plaintiff to show cause
why his action should not be dismissed.

Plaintiff's Motion for Appointment of Counsel
*5 Last, the Court will deny plaintiff's motion for
appointment of counsel at this time. There is no constitutional
or statutory right to appointed counsel in civil cases. Nelson v.
Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir.
1984). In determining whether to appoint counsel, the Court
considers several factors, including (1) whether the plaintiff
has presented non-frivolous allegations supporting his or her
prayer for relief; (2) whether the plaintiff will substantially
benefit from the appointment of counsel; (3) whether there
is a need to further investigate and present the facts related
to the plaintiff's allegations; and (4) whether the factual and
legal issues presented by the action are complex. See Johnson
v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson,
728 F.2d at 1005.
After considering these factors and the factual allegations
in the case at hand, the Court finds that the facts and legal
issues involved are not so complicated that the appointment
of counsel is warranted at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion seeking
leave to commence this action without prepaying fees or costs
[ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall show cause
within twenty-one (21) days of the date of this Memorandum
and Order why this action should not be subject to dismissal
for lack of jurisdiction and pursuant to 28 U.S.C. § 1915(e)
(2)(B).
IT IS FURTHER ORDERED that to the extent plaintiff
wishes to pursue claims under the Federal Tort Claims Act, he
must provide the Court with a copy of his Agency Decision
along with his Response to the Order to Show Cause within
twenty-one (21) days from the date of this Order.
IT IS FURTHER ORDERED that plaintiff's motion for
appointment of counsel [ECF No. 3] is DENIED.
All Citations
Not Reported in Fed. Supp., 2023 WL 6381428

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3

Phillips v. United States, Not Reported in Fed. Supp. (2023)

Footnotes
1

Based on a review of Court records, it appears that plaintiff has filed approximately forty-five (45) cases in
this Court since 2010. It appears that only one of those cases made it past initial review under 28 U.S.C. §
1915(e)(2); however, that case was dismissed after plaintiff failed to respond to a motion to compel and failed
to appear for a hearing. See Phillips v. Dunn, No. 4:16-CV-1698-RWS (E.D. Mo. Oct. 31, 2016) (dismissed
July 21, 2017) (appeal dismissed for lack of jurisdiction Sept. 6, 2018). Plaintiff's other cases were dismissed
before service on any defendant for a variety of reasons, including failure to sign the complaint, frivolity, failure
to state a claim, lack of jurisdiction, and failure to prosecute.

2

Akathisia is defined as the inability to remain still.

3

In one portion of his complaint, he states that he was awarded benefits on April 19, 2023, but in another
portion of his complaint, he states that he was awarded benefits “four years” from 2015, which would have
made the date April 19, 2019. Thus, the Court is unsure of the exact date plaintiff was awarded benefits.

4

In his complaint, plaintiff also states, “Kyle Beesley himself agreed” that his claim was a valid claim. However,
plaintiff fails to identify Kyle Beesley.

5

“An action under Bivens is almost identical to an action under [42 U.S.C. §] 1983, except that the former
is maintained against federal officials while the latter is against state officials.” Gordon v. Hansen, 168 F.3d
1109, 1113 (8th Cir. 1999). As such, claims under Bivens and claims under § 1983 involve the same analysis.
Solomon v. Petray, 795 F.3d 777, 789 n.7 (8th Cir. 2015). Furthermore, the body of case law regarding §
1983 applies to Bivens actions. Id. Even if plaintiff could identify the individual, plaintiff would need to exhaust
his administrative remedies prior to bringing suit against such an individual under the Federal Tort Claims Act.

6

In order to state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege sufficient facts to show
(1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived
the plaintiff of a constitutionally protected federal right.” Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010).
With regard to the first element, a defendant can only be held liable pursuant to § 1983 for actions taken
under color of state law. Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008). See also Magee
v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 535 (8th Cir. 2014) (stating that § 1983 “imposes liability
for certain actions taken under color of law that deprive a person of a right secured by the Constitution and
laws of the United States”); Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that
§ 1983 secures constitutional rights from government infringement, not infringement by private parties); and
Montano v. Hedgepeth, 120 F.3d 844, 848 (8th Cir. 1997) (stating that pursuant to § 1983, “the challenged
conduct must have been committed by one who acts under color of law”).

End of Document

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4

Bantis v. Government USA, Not Reported in Fed. Supp. (2023)

2023 WL 3977367
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Matthew BANTIS, Plaintiff,
v.
GOVERNMENT USA, Defendant.

(1989), abrogated on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez,
504 U.S. 25, 32-33 (1992) (holding that “finding of factual
frivolousness is appropriate when the facts alleged rise to the
level of the irrational or the wholly incredible”); Livingston,
141 F.3d at 437 (“[A]n action is ‘frivolous’ when either: (1)
the factual contentions are clearly baseless ...; or (2) the claim
is based on an indisputably meritless legal theory.”) (internal
quotation marks and citation omitted).

23-CV-2492 (LTS)
|
Signed June 12, 2023
Attorneys and Law Firms
Matthew Bantis, Brooklyn, NY, Pro Se.

ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge:
*1 Plaintiff Matthew Bantis, who is appearing pro se, brings
this action invoking the Court's federal question jurisdiction.
By order dated March 31, 2023, the Court granted Plaintiff's
request to proceed in forma pauperis (“IFP”), that is, without
prepayment of fees. The Court dismisses the complaint for the
reasons set forth below.

STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof,
that is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief from
a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B); see Livingston v. Adirondack Beverage Co.,
141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss
a complaint when the Court lacks subject matter jurisdiction.
See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal
on any of these grounds, the Court is obliged to construe pro
se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009), and interpret them to raise the “strongest [claims]
that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and
citations omitted, emphasis in original).
A claim is frivolous when it “lacks an arguable basis either
in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324-25

BACKGROUND
Plaintiff, a Brooklyn resident, sets forth the following facts in
his complaint.
They started using ear pieces in chess. I'm not allowed to
compete due to ignorance and insecurity of the opposing
players in the Chess Federation. All pro players. I have
beaten a couple of them. They cheated.
The same thing with fighting. Tiger Schulman's promised
me the opportunity to enter professional and they lied. They
are withholding me from my occupation and career.
Basketball is very similar. Everyone under the organization
has passed me up. They never wish to help. They never
chose to help me develop[ ] by also getting me performance
enhancing drugs. If not, I sue the pro players that are
cheating on drugs. Still to this day, no accountability, while
everyone progresses their career.
School — the government of a foreign has ... disrespected
me and forged four grades of mine and failed them. It is
on my transcript. It is all there, 2021 Spring term. My life
needs reparations from the discontinuation of being able to
go famous under the American right, also freedom. Thank
you.
(ECF 1 ¶ III.)
Plaintiff seeks $ 20 million, “to buy a couple [of] properties
and finish school. Real estate, just like my father. I need
reparations.” (Id. ¶ IV.)

DISCUSSION
A. Sovereign Immunity and the Federal Tort Claims Act

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1

Bantis v. Government USA, Not Reported in Fed. Supp. (2023)

*2 Plaintiff names the government of the United States as
the defendant in this lawsuit, but the Court must dismiss
any claims against the federal government under the doctrine
of sovereign immunity. This doctrine bars federal courts
from hearing all suits against the federal government except
where sovereign immunity has been waived. United States
v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United
States v. Sherwood, 312 U.S. 584, 586 (1941)); Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
1994) (“Because an action against a federal agency or federal
officers in their official capacities is essentially a suit against
the United States, such suits are ... barred under the doctrine
of sovereign immunity, unless such immunity is waived.”).
The Court considers whether these claims fall under the
Federal Tort Claims Act (“FTCA”), which provides for
a waiver of sovereign immunity for certain claims for
damages arising from the tortious conduct of federal officers
or employees acting within the scope of their office or
employment. See 28 U.S.C. §§ 1346(b)(1), 2680. “The
proper defendant in an FTCA claim is the United States, not
individual federal ... agencies.” Holliday v. Augustine, No.
3:14-CV-0855, 2015 WL 136545, at *1 (D. Conn. Jan. 9,
2015).
A plaintiff must comply with the FTCA's procedural
requirements before a federal court can entertain his claim.
See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d
Cir. 1999), abrogated on other grounds, United States v.
Kwai Fun Wong, 575 U.S. 402 (2015). Before bringing a
claim in a federal district court under the FTCA, a claimant
must first exhaust his administrative remedies by filing a
claim for damages with the appropriate federal government
entity and must receive a final written determination. See
28 U.S.C. § 2675(a). Such an administrative claim must be
in writing, specify the amount of damages sought, and be
filed within two years of the claim's accrual. 28 U.S.C. §§
2401(b), 2675(a). A claimant may thereafter challenge the
Government's final denial in a federal district court by filing
an action within six months after the date of the mailing of the
notice of final denial by the federal entity. See § 2401(b). If no
written final determination is made by the appropriate federal
entity within six months of the date of the claimant's filing
of the administrative claim, the claimant may then bring an
FTCA action in a federal district court. See § 2675(a). While
this exhaustion requirement is jurisdictional and cannot be
waived, see Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 82 (2d Cir. 2005), “the FTCA's time bars

are nonjurisdictional and subject to equitable tolling,” Kwai
Fun Wong, 575 U.S. at 420.
To the extent that Plaintiff asserts claims for damages under
the FTCA, he has not alleged facts demonstrating that
he filed an administrative claim under the FTCA with a
federal government entity for damages and subsequently
received a final written determination before bringing this
action; he has also not alleged facts showing that it has
been more than six months since he has filed such an
administrative claim. Accordingly, any claims for damages
Plaintiff wishes to pursue against the United States of
America in this action are not permissible under the FTCA
and the Court dismisses Plaintiff's complaint under the
doctrine of sovereign immunity, see 28 U.S.C. § 1915(e)
(2)(B)(iii), and consequently, for lack of subject matter
jurisdiction, see Fed. R. Civ. 12(h)(3).
B. Plaintiff's claims are frivolous
Plaintiff's complaint, when read with the “special solicitude”
due to pro se pleadings, Triestman, 470 F.3d at 474-75, fails to
allege any facts suggesting that he has a plausible legal claim.
Plaintiff's factual allegations — that the federal government
had some involvement in Plaintiff's negative experiences
playing chess, participating in sports, or attending school —
are largely irrational, or wholly incredible. See Denton, 504
U.S. at 33. The Court therefore dismisses Plaintiff's complaint
as frivolous because it lacks a basis in law or fact. See Neitzke,
490 U.S. at 324-25; Livingston, 141 F.3d at 437.
C. Leave to amend denied
*3 District courts generally grant a pro se plaintiff an
opportunity to amend a complaint to cure its defects, but leave
to amend is not required where it would be futile. See Hill v.
Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in
Plaintiff's complaint cannot be cured with an amendment, the
Court declines to grant Plaintiff leave to amend and dismisses
the action as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).

CONCLUSION
The Court dismisses this action under the doctrine of
sovereign immunity, see 28 U.S.C. § 1915(e)(2)(B)(iii), and
consequently, for lack of subject matter jurisdiction, see Fed.
R. Civ. P. 12(h)(3). The Court additionally dismisses this
action as frivolous. See § 1915(e)(2)(B)(i).

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2

Bantis v. Government USA, Not Reported in Fed. Supp. (2023)

The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

End of Document

SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 3977367

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3

Greenland v. United States, Not Reported in Fed. Supp. (2022)

2022 WL 2702656
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ronald C. GREENLAND, Plaintiff,
v.
UNITED STATES of America; The
Westchester Correctional Center, Defendants.
22-CV-4974 (LTS)
|
Signed July 11, 2022
Attorneys and Law Firms
Ronald C. Greenland, Attica, NY, Pro Se.

ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District
Judge
*1 Plaintiff, who is currently incarcerated at Attica
Correctional Facility, brings this pro se action under the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2671-80. By order dated June 15, 2022, the Court granted
Plaintiff's request to proceed in forma pauperis, that is,
without prepayment of fees. 1 For the reasons set forth below,
the Court now dismisses the complaint, but directs the Clerk
of Court not to enter judgment for 30 days.

STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts
screen complaints brought by prisoners who seek relief
against a governmental entity or an officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). The Court
must dismiss a prisoner's in forma pauperis complaint, or any
portion of the complaint, that is frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must
also dismiss a complaint if the court lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3).

BACKGROUND
Plaintiff Ronald Greenland alleges the following facts. On
January 17, 2017, Plaintiff was detained in Westchester
Correctional Center. He had a meeting with his attorney,
“Mrs. Brody,” that day, and thereafter was scheduled to
appear in his pending criminal matter before Judge Karas in
the United States District Court for the Southern District of
New York. 2
Before Plaintiff entered the interview room at Westchester
Correctional Center to meet his attorney, a deputy from the
United States Marshals Service placed Plaintiff in restraints
on his hands and feet. The deputy then escorted Plaintiff to
a barstool where he was seated during the interview. After
the interview, Mrs. Brody called for the Marshals Service.
A deputy arrived and directed Plaintiff to stand up and turn
around. Plaintiff attempted to comply but the restraints on
his legs were tangled with the legs of the barstool. Plaintiff
fell and was unable to break his fall because he was still in
restraints.
The deputy left Plaintiff in a holding cell, but Plaintiff was
in excruciating pain. Another detainee alerted the Marshals
Service of Plaintiff's distress and, approximately 45 minutes
later, Plaintiff was taken to White Plains Hospital. (ECF
2 at 3.) At the hospital, Plaintiff was prescribed Motrin,
provided a sling, and referred for follow-up treatment (Xrays, physical therapy). (Id. at 5.) As of the writing of the
complaint, Plaintiff is still being treated for these injuries,
and he describes himself as being under the “Continuing
Treatment Doctrine.” (Id.)
On October 28, 2018, about 20 months after he was injured,
Plaintiff requested an administrative claim form from the
United States Department of Justice (DOJ). (Id. at 3.)
Plaintiff alleges that it has been “a slow piecemeal to receive
documents” and that he has been “in continual contact” with
certain individuals from the DOJ since that initial request.
(Id.)
*2 Plaintiff brings this action against the Westchester
Correctional Center and the United States, invoking the
FTCA. Plaintiff seeks unspecified damages.

DISCUSSION

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1

Greenland v. United States, Not Reported in Fed. Supp. (2022)

A. Westchester Correctional Center
Plaintiff's claims against the Westchester Correctional Center
must be dismissed because, under New York law, county
agencies or departments do not have the capacity to be
sued. See Omnipoint Commc'ns, Inc. v. Town of LaGrange,
658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New York,
agencies of a municipality are not suable entities.”); Hall v.
City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y.
2002) (“Under New York law, departments which are merely
administrative arms of a municipality do not have a legal
identity separate and apart from the municipality and cannot
sue or be sued.”); see also N.Y. Gen. Mun. Law § 2 (“The
term ‘municipal corporation,’ as used in this chapter, includes
only a county, town, city and village.”).
Instead, claims against the Westchester Correctional Center
must be brought against the County of Westchester. When
a plaintiff sues a municipality such as Westchester County
under Section 1983, however, it is not enough for the plaintiff
to allege that one of the municipality's employees or agents
engaged in some wrongdoing. The plaintiff must show that
the municipality itself caused the violation of the plaintiff's
rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011)
(quoting Monell v. Dep't of Soc. Servs. of City of New York,
436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d
324, 333 (2d Cir. 2011). In other words, to state a § 1983
claim against a municipality, the plaintiff must allege facts
showing (1) the existence of a municipal policy, custom, or
practice, and (2) that the policy, custom, or practice caused
the violation of the plaintiff's constitutional rights. See Jones
v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd.
of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403
(1997).
Plaintiff alleges that he was detained at Westchester
Correctional Center when his injury from the restraints
occurred but does not plead any facts showing that any policy
or custom of Westchester County caused a violation of his
rights. Plaintiff's complaint gives no indication that he is
asserting any wrongdoing on the part of the Westchester
Correctional Center or Westchester County. It therefore
appears that it would be futile to grant Plaintiff leave to amend
in order to substitute Westchester County. The Court therefore
dismisses, without leave to amend, Plaintiff's claim against
Westchester Correctional Center on the ground that this entity
lacks the capacity to be sued.
B. Federal Tort Claims Act

“The United States, as sovereign, is immune from suit unless
it waives immunity and consents to be sued.” See Cooke v.
United States, 918 F.3d 77, 81 (2d Cir. 2019). The FTCA
provides for a waiver of sovereign immunity for certain
claims for damages arising from the tortious conduct of
federal officers or employees acting within the scope of their
office or employment. See 28 U.S.C. § 1346(b)(1). “The
FTCA's purpose is both to allow recovery by people injured
by federal employees or by agents of the Federal Government,
and, at the same time, to immunize such employees and
agents from liability for negligent or wrongful acts done in
the scope of their employment.” Celestine v. Mount Vernon
Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005).
Thus, “[t]he proper defendant in an FTCA claim is the
United States, not individual federal employees or agencies.”
Holliday v. Augustine, No. 3:14-CV-0855, 2015 WL 136545,
at *1 (D. Conn. Jan. 9, 2015).
*3 A plaintiff must comply with the FTCA's procedural
requirements before a federal court can entertain the claim.
See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.
1999), abrogated on other grounds, United States v. Kwai
Fun Wong, 575 U.S. 402 (2015). Before bringing a claim
in a federal district court under the FTCA, a claimant must
first exhaust his administrative remedies by filing a claim for
damages with the appropriate federal government entity and
must receive a final written determination. See 28 U.S.C. §
2675(a). Such an administrative claim must be in writing,
must specify the amount of damages sought, and must be filed
within two years of the claim's accrual. 28 U.S.C. §§ 2401(b),
2675(a).
A claimant may challenge the agency's final denial in a federal
district court by filing an action within six months of the
federal agency's mailing of the notice of denial. See § 2401(b).
If no written final determination is made by the federal entity
within six months of the claimant's filing of the administrative
claim, the claimant may then bring a FTCA action in a federal
district court. See § 2675(a).
This exhaustion requirement is jurisdictional and cannot
be waived. See Celestine v. Mount Vernon Neighborhood
Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005); see Phillips v.
Generations Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir.
2013) (holding that a “claimant can only initiate his or her
lawsuit once the claim has been denied by the agency or if
the agency has failed to make a decision within six months
after the claim was filed.”); McNeil v. United States, 508
U.S. 106, 112 (1993) (“Congress intended to require complete

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2

Greenland v. United States, Not Reported in Fed. Supp. (2022)

exhaustion of Executive remedies before invocation of the
judicial process. Every premature filing of an action under
the FTCA imposes some burden on the judicial system.”).
By contrast, “the FTCA's time bars are nonjurisdictional and
subject to equitable tolling.” Kwai Fun Wong, 575 U.S. at 420.

*4 The Court dismisses Plaintiff's claim under 42 U.S.C. §
1983 against Westchester Correctional Center on the ground
that this entity lacks the capacity to be sued. The Court
dismisses Plaintiff's FTCA claim against the United States
based on sovereign immunity. 28 U.S.C. § 1915(e)(2)(B)(iii).

Here, Plaintiff alleges that he requested an administrative
claim form from the Department of Justice (DOJ) on October
24, 2018, nearly four years ago. (ECF 2 at 3.) He alleges that
it has been “a slow piecemeal process to receive documents”
and that he has been “in continual contact” with certain
individuals from the DOJ since that initial request. (Id.)
Plaintiff does not allege, however, that he completed the form
and filed an administrative claim, or that he received a denial
of his claim from the agency.

The Clerk of Court is directed not to enter judgment and to
hold this matter open on the docket for 30 days in order to
provide Plaintiff an opportunity to file an amended complaint
as set forth herein. If Plaintiff wishes to file an amended
complaint, he must submit it to this Court's Pro Se Intake Unit
within 30 days of the date of this order, caption the document
as an “Amended Complaint,” and label the document with
docket number 22-CV-4974 (LTS). An Amended Complaint
form is attached to this order. No summons will issue at this
time. If Plaintiff does not file an amended complaint within
the time allowed, the Court will enter judgment as set forth
herein.

Plaintiff's allegations do not demonstrate that, before bringing
this action, he had filed an administrative claim under the
FTCA and received a final written determination from the
federal agency. He also fails to allege facts showing that it has
been more than six months since he filed an administrative
claim. Accordingly, the Court dismisses Plaintiff's FTCA
claim under the doctrine of sovereign immunity.
C. Leave to Replead
District courts generally grant a pro se plaintiff an opportunity
to amend a complaint to cure its defects, but leave to amend
is not required where it would be futile. See Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988). Here, it appears that granting
leave to amend would be futile because the requirement that
administrative remedies be exhausted before bringing suit
is not satisfied by a plaintiff's receipt of a federal agency's
rejection of a claim after commencement of suit. McNeil, 508
U.S. 106.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose
of an appeal. Cf. Coppedge v. United States, 369 U.S. 438,
444-45 (1962) (holding that an appellant demonstrates good
faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Attachment
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

The Court will hold this matter open on the docket for
30 days. If, before filing this action, Plaintiff did file his
administrative claim, and either (1) received a final, written
agency decision, or (2) the agency failed to respond within
six months after receipt of Plaintiff's administrative claim,
Plaintiff may submit an amended complaint pleading such
facts.

CONCLUSION

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3

Greenland v. United States, Not Reported in Fed. Supp. (2022)

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?

I. BASIS FOR JURISDICTION
Federal courts are courts of limited jurisdiction (limited
power). Generally, only two types of cases can be heard
in federal court: cases involving a federal question and
cases involving diversity of citizenship of the parties. Under
28 U.S.C. § 1331, a case arising under the United States
Constitution or federal laws or treaties is a federal question
case. Under 28 U.S.C. § 1332, a case in which a citizen of one
State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In
a diversity case, no defendant may be a citizen of the same
State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
Federal Question

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in
the complaint. Attach additional pages if needed.

Diversity of Citizenship
A. If you checked Federal Question
*5 Which of your federal constitutional or federal statutory
rights have been violated?

B. Defendant Information

To the best of your ability, provide addresses where each
defendant may be served. If the correct information is not
________________________________________________________________________________________________________
provided, it could delay or prevent service of the complaint
on the defendant. Make sure that the defendants listed below
________________________________________________________________________________________________________
are the same as those listed in the caption. Attach additional
pages if needed.
________________________________________________________________________________________________________
________________________________________________________________________________________________________

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4

Greenland v. United States, Not Reported in Fed. Supp. (2022)

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________
III. STATEMENT OF CLAIM

____________________________________________________________

____________________________________________________________
*6
Place(s)
of
occurrence:
____________________________________________________________
________________________________________________________________________________

____________________________________________________________
Date(s)
of
occurrence:
________________________________________________________________________________
INJURIES:
FACTS:
If you were injured as a result of these actions, describe your
injuries and what medical treatment, if any, you required and
State here briefly the FACTS that support your case. Describe
received.
what happened, how you were harmed, and what each
defendant personally did or failed to do that harmed you.
____________________________________________________________
Attach additional pages if needed.

____________________________________________________________
________________________________________________________________________________________________________

____________________________________________________________
________________________________________________________________________________________________________

____________________________________________________________
________________________________________________________________________________________________________

____________________________________________________________
________________________________________________________________________________________________________
IV. RELIEF
________________________________________________________________________________________________________

*7 State briefly what money damages or other relief you
________________________________________________________________________________________________________
want the court to order.
________________________________________________________________________________________________________
____________________________________________________________
________________________________________________________________________________________________________
____________________________________________________________
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5

Greenland v. United States, Not Reported in Fed. Supp. (2022)

current address on file with the Clerk's Office may result in
________________________________________________________________________________________________________
the dismissal of my case.
________________________________________________________________________________________________________
Each Plaintiff must sign and date the complaint. Attach
additional pages if necessary. If seeking to proceed without
________________________________________________________________________________________________________
prepayment of fees, each plaintiff must also submit an IFP
V. PLAINTIFF'S CERTIFICATION AND WARNINGS
application.
By signing below, I certify to the best of my knowledge,
information, and belief that: (1) the complaint is not being
presented for an improper purpose (such as to harass,
cause unnecessary delay, or needlessly increase the cost
of litigation); (2) the claims are supported by existing law
or by a nonfrivolous argument to change existing law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery; and (4) the complaint otherwise complies with the
requirements of Federal Rule of Civil Procedure 11.
I agree to notify the Clerk's Office in writing of any changes
to my mailing address. I understand that my failure to keep a

All Citations
Not Reported in Fed. Supp., 2022 WL 2702656

Footnotes
1

Prisoners are not exempt from paying the full filing fee even when they have been granted permission to
proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).

2

Plaintiff was the defendant in United States v. Greenland, No. 17-CR-0065 (KMK) (S.D.N.Y.).

End of Document

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6

Santillan v. United States, Not Reported in Fed. Supp. (2020)

2020 WL 902922
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States District Court, E.D. New York.
Hector SANTILLAN, Plaintiff,
v.
UNITED STATES of America, Michelle
Belgard M.D., Acting Clinical Director,
MDC Brooklyn N.Y., Defendants.
19-CV-5410 (AMD) (LB)
|
Signed 02/25/2020
Attorneys and Law Firms
Hector Santillan, Philipsburg, PA, pro se.

MEMORANDUM AND ORDER
ANN M. DONNELLY, United States District Judge:
*1 On September 16, 2019, the plaintiff, Hector Santillan,
who is currently incarcerated at the Moshannon Valley
Correctional Center in Pennsylvania, filed this pro se action
pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 2.) By
Memorandum and Order dated October 7, 2019, I granted
the plaintiff's request to proceed in forma pauperis, dismissed
the complaint for failure to state a claim and for lack of
subject matter jurisdiction, and granted the plaintiff leave to
file an amended complaint within 30 days. (ECF No. 6.) On
December 5, 2019, I extended the deadline for the plaintiff to
file an amended complaint to January 10, 2020. (ECF No. 10.)
On January 21, 2020, the plaintiff filed an amended complaint
pursuant to 42 U.S.C. § 1983 along with an application for
pro bono counsel. (ECF Nos. 11, 12.) For the reasons set forth
below, the plaintiff's amended complaint is dismissed. 1

BACKGROUND
The amended complaint repeats the same allegations as the
original complaint. Specifically, the plaintiff alleges that he
was injured on August 28, 2013 when he fell from his bunk

at the Metropolitan Detention Center (“MDC”) in Brooklyn.
(ECF No. 11 at 10-14; ECF No. 1 at 4.)
The plaintiff also alleges that “F.B.O.P. employees were
negligent” in “failing to render immediate medical
treatment,” in “failing to provide adequate medical services
and indifferent to [his] pain and suffering,” and “continuation
of indifference and violation of [his] right to adequate medical
care.” (ECF No. 11 at 6.) The plaintiff further alleges that “the
medical staff at the MDC Brooklyn committed failure to act
on medical recommendations for surgery.” (Id. at 9, 23.)

STANDARD OF REVIEW
A federal court must “liberally construe[ ]” pleadings by
pro se parties, and interpret their complaints to raise the
strongest arguments they suggest. Erickson v. Pardus, 551
U.S. 89, 94 (2007). Nevertheless, a complaint still must plead
“enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible on its face if it “allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). While “detailed factual allegations” are not
required, “[a] pleading that offers ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action
will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555).
*2 A district court should “review, before docketing,
if feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. § 1915A(a).
Upon review, the Court is required to “identify cognizable
claims or dismiss the complaint, or any portion of the
complaint, if the complaint ... (1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or (2)
seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b). Similarly, under the in
forma pauperis statute, the Court must dismiss a complaint if
it determines that the action “(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B).

DISCUSSION

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1

Santillan v. United States, Not Reported in Fed. Supp. (2020)

The Court liberally construes the plaintiff's amended
complaint as brought pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971) (“Bivens”), and the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq.
I. Bivens Claim
An individual plaintiff may bring a claim against federal
officials, in their individual capacities, for conduct violating
the Constitution. See generally Bivens, 403 U.S. 338 (1971);
see also Atterbury v. U.S. Marshals Serv., 805 F.3d 398, 403
(2d Cir. 2015) (Bivens “established that a citizen suffering
a compensable injury to a constitutionally protected interest
could ... obtain an award of monetary damages against
the responsible federal official[.]”) (citation omitted). The
plaintiff “must allege a violation by a federal official of a
clearly established constitutional right for which the federal
official does not have immunity.” Nelson v. Hernandez, 524
F. Supp. 2d 212, 219 (E.D.N.Y. 2007) (citing Siegert v. Gilley,
500 U.S. 226, 232(1991)). There is no vicarious liability
under Bivens. See Thomas v. Ashcroft, 470 F.3d 491,497 (2d
Cir. 2006) (“Because the doctrine of respondeat superior
does not apply in Bivens actions, a plaintiff must allege
that the individual defendant was personally involved in the
constitutional violation.”). The statute of limitations is three
years and begins to accrue when the “plaintiff either has
knowledge of his or her claim or has enough information
that a reasonable person would investigate and discover the
existence of a claim.” Gonzalez v. Hasty, 802 F.3d 212, 220
(2d Cir. 2015).
Here, the plaintiff fails to state a claim against the
defendants. According to the amended complaint, the plaintiff
received medical treatment from various medical providers in
September and October of 2013. (ECF No. 11 at 24-32.) Dr.
Belgard referred the plaintiff to neurosurgery on August 30,
2013. (Id. at 23, 33-34.) The plaintiff has not alleged that Dr.
Belgard denied him medical care or was personally involved
in any denial of medical care.
Even if the amended complaint did plausibly allege that
the defendants were somehow responsible for the plaintiff's
failure to have neurosurgery, his claim is time-barred. The
plaintiff argues that the “Court should ... consider Plaintiff's
head injury” to toll the statute of limitations (ECF No. 11
at 7-8), but he attaches documents that show he was able
to file prisoner grievances in January and February of 2017
while he was incarcerated at the Federal Medical Center
in Devens, Massachusetts. (Id. at 15-21.) Those grievances

also allege inadequate medical treatment, including the denial
of neurosurgery, defeating his allegation that he could not
timely file this action. (Id.) The plaintiff does not allege
facts sufficient to support equitable tolling of the statute of
limitations. Accordingly, his Bivens claim against Dr. Belgard
is dismissed for failure to state a claim. 28 U.S.C. §§ 1915A,
1915(e)(2)(B).
II. Federal Tort Claims Act
*3 While the United States is generally immune from suit,
see United States v. Mitchell, 445 U.S. 535, 538 (1980) (“The
United States, as sovereign, is immune from suit save as
it consents to be sued[.]”) (citation and internal alteration
omitted), the Federal Tort Claims Act (“FTCA”) provides
an exception to the rule and permits suit against the United
States as “the exclusive remedy” for damages “resulting from
the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment,” see Rivera v. United States, 928
F.2d 592, 608-09 (2d Cir. 1991). Before bringing an FTCA
claim in federal court, a plaintiff must fully exhaust available
administrative remedies. See McNeil v. United States, 508
U.S. 106,113 (1993); see also 28 U.S.C. § 2401. The plaintiff
must file the administrative claim with the appropriate federal
agency within two years of the claim's accrual, and then file an
action in federal court “within six months” of a “final denial
of the claim by the agency.” 28 U.S.C. §§ 2401(b), § 2675(a).
It is the plaintiff's burden to demonstrate that he exhausted his
administrative remedies.
The plaintiff does not provide any proof that he filed a
tort claim as required under the FTCA. Rather, the plaintiff
provides documents related to his prison grievances where he
sought medical attention. This is not the same as a tort claim
seeking damages. In fact, the prison alerted the plaintiff to
this difference in its response to his grievance on March 9,
2017. (See ECF No. 11 at 15.) Therefore, the plaintiff's FTCA
claim against the United States is dismissed for lack of subject
matter jurisdiction. Fed. R. Civ. P. 12(h)(3).

CONCLUSION
Accordingly, the plaintiff's amended complaint, filed in forma
pauperis, is dismissed for failure to state a claim under Bivens,
28 U.S.C. §§ 1915A, 1915(e)(2)(B), and for lack of subject
matter jurisdiction under the FTCA. Fed. R. Civ. P. 12(h)(3).
The plaintiff's application for pro bono counsel is denied. The

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2

Santillan v. United States, Not Reported in Fed. Supp. (2020)

Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal would not be taken in good faith and therefore in forma
pauperis status is denied for purpose of an appeal.
The Clerk of Court is respectfully directed to enter judgment
and close this case.

SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 902922

Footnotes
1

The plaintiff's request for counsel is denied. There is no right to a lawyer in a civil case. Guggenheim Capital,
LLC v. Birnbaum, 722 F.3d 444, 453 (2d Cir. 2013). A court cannot require that a lawyer represent someone
in a civil case without the lawyer being paid. Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989). Instead, all that
the Court can do is ask a lawyer to volunteer. In deciding whether to do this, the Court evaluates whether the
plaintiff's position is “likely to be of substance.” Ferelli v. River Manor Health Care Ctr., 323 F.3d 196, 204 (2d
Cir. 2003). The plaintiff's complaint does not establish the threshold requirement that his claims are “likely to
be of substance.” Id. Accordingly, the plaintiff's request for pro bono counsel is denied without prejudice.

End of Document

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3

Shah v. Wingo, Not Reported in Fed. Supp. (2016)

2016 WL 4766502
Only the Westlaw citation is currently available.
United States District Court,
E.D. Arkansas, Eastern Division.
Vivek SHAH, REG # 43205-424, Plaintiff
v.
Michelle WINGO, Physician's Assistant, Forrest City
Low Federal Correctional Institution; et al., Defendants.
2:15CV00004-KGB-JJV
|
Signed 01/14/2016
Attorneys and Law Firms

2. Why the evidence to be proffered at the new hearing (if such
a hearing is granted) was not offered at the hearing before the
Magistrate Judge.
3. The details of any testimony desired to be introduced at
the new hearing in the form of an offer of proof, and a copy,
or the original, of any documentary or other non-testimonial
evidence desired to be introduced at the new hearing.
From this submission, the District Judge will determine the
necessity for an additional evidentiary hearing. Mail your
objections and “Statement of Necessity” to:

Clerk, United States District Court

Vivek Shah, Lexington, KY, pro se.
Jamie Goss Dempsey, U. S. Attorney's Office, Little Rock,
AR, for Defendants.

Eastern District of Arkansas
600 West Capitol Avenue, Suite A149

PROPOSED FINDINGS AND
RECOMMENDATIONS INSTRUCTIONS

Little Rock, AR 72201-3325

JOE J. VOLPE, UNITED STATES MAGISTRATE JUDGE

DISPOSITION

*1 The following partial recommended disposition has
been sent to United States District Judge Kristine G. Baker.
Any party may serve and file written objections to this
recommendation. Objections should be specific and should
include the factual or legal basis for the objection. If the
objection is to a factual finding, specifically identify that
finding and the evidence that supports your objection. An
original and one copy of your objections must be received in
the office of the United States District Court Clerk no later
than fourteen (14) days from the date of the findings and
recommendations. The copy will be furnished to the opposing
party. Failure to file timely objections may result in waiver of
the right to appeal questions of fact.

Defendants filed a Motion for Partial Summary Judgment
(Doc. No. 80) on November 12, 2015. Therein, they argued
that Plaintiff failed to exhaust his administrative remedies
against Defendants Summer Birkhead and United States
of America. (Id.) I have already recommended Defendant
Birkhead be dismissed. (Doc. No. 85.) After an initial review
of the pleadings, I determined additional briefing would be
helpful on the issue of whether Plaintiff's Federal Torts Claim
Act (“FTCA”) claims should proceed. (Doc. No. 86.) Both
parties have now submitted additional argument on this point
and the matter is ripe for disposition.

If you are objecting to the recommendation and also desire
to submit new, different, or additional evidence, and to have
a hearing for this purpose before either the District Judge or
Magistrate Judge, you must, at the time you file your written
objections, include the following:
1. Why the record made before the Magistrate Judge is
inadequate.

It is settled law that, prior to bringing a claim under the FTCA
in federal court, a petitioner must exhaust administrative
remedies. Specifically:

An action shall not be instituted upon
a claim against the United States for
money damages for injury or loss of
property or personal injury or death
caused by the negligent or wrongful

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1

Shah v. Wingo, Not Reported in Fed. Supp. (2016)

act or omission of any employee of
the Government while acting within
the scope of his office or employment,
unless the claimant shall have first
presented the claim to the appropriate
Federal agency and his claim shall
have been finally denied by the agency
in writing and sent by certified or
registered mail. The failure to an
agency to make final disposition of a
claim within six months after it is filed
shall ... be deemed a final denial for the
purposes of this action.

*2 28 U.S.C. § 2675(a). Defendants assert Plaintiff has filed
four separate FTCA claims against Defendant United States
of America. I will review each to determine whether it should
proceed in this case.
First, on October 15, 2014, he submitted a claim based on
the alleged denial of medication for chronic stomach pain.
(Doc. No. 82-1 at 29.) This claim was denied on April 7,
2015. (Id. at 32-33.) Defendants point out that this claim is the
subject of another case before this district – Shah v. Wooten,
2:15CV00078-BSM-BD. I have reviewed the Complaint in
this case and agree. Id., Doc. No. 1 at 11-12. Accordingly,
this claim will be dismissed without prejudice so Plaintiff may
pursue it in that case.
Second, Plaintiff submitted a claim on December 13, 2014,
complaining he had been harmed by a lack of toiletries. (Doc.
No. 82-1 at 36-37.) This claim was denied on March 11, 2015.
(Id. at 40-41.) This claim is barred by res judicata 1 because
it formed the basis for Shah v. USA, 4:15CV00161-SWW,
which was dismissed with prejudice on December 1, 2015. Id.
at Doc. Nos. 29-30. Accordingly, this claim cannot be pursued
in this action.
Third, Plaintiff submitted a January 8, 2015, claim which
alleged he had not received arch supports for his shoes and he
had again been denied gastrointestinal medication. (Doc. No.
82-1 at 44-45.) In the initial Brief in Support of their Motion,
Defendants state “[a]s of June 5, 2015, no response has been
sent by the BOP.” (Doc. No. 81 at 3.) Given the date of
Plaintiff's Amended Complaint (Doc. No. 32) is April 7, 2015,
I conclude this claim was not exhausted at the time this FTCA
claim was introduced to this action. No agency response was
issued by that date and the six month deadline for a non-

response to constitute a final denial would not have run until
July that year. This claim will, therefore, be dismissed without
prejudice as unexhausted.
Finally, Plaintiff submitted a fourth FTCA claim on July 29,
2014, which made general complaints about the health care
he received at FCC Forrest City. (Doc. No. 82-1 at 51-52.)
This claim was not actually received by the Bureau of Prisons
until February 18, 2015. (Doc. No. 87-2.) Plaintiff argues this
claim, which he mistakenly sent to the Department of Justice
(“DOJ”), should be considered received on August 20, 2014
– the date the DOJ acknowledged receipt of his documents.
(Doc. No. 84 at 1-2.) In support of this proposition, he cites
Program Statement 1320.06 to 28 C.F.R. § 543.32(a) which
states that “[a] claim that is transferred to another Bureau
office will be considered filed with that office when the claim
was received by the first appropriate agency office.” (Doc.
No. 87-1 at 5.) Defendants argue this regulation merely
explains the process of receiving an acknowledgment letter
for an FTCA claim. They note Plaintiff did receive a letter
from the DOJ after the initial submission of this claim, but
they state the letter was merely a response to one of Plaintiff's
letters rather than an acknowledgment of claim receipt.
(Doc. No. 82-1 at 49.) The claim was actually received for
processing on February 18, 2015, and a final denial issued on
or about May 27, 2015. (Doc. No. 87-2; 82-1 at 55-57.)
*3 This procedural history presents a difficult question.
Whether claims were presented to the appropriate federal
agency and denied in writing prior to an FTCA suit's filing
is a jurisdictional question. See Osborn v. United States,
918 F.2d 724, 728 (8th Cir. 1990). It is Plaintiff's burden
to show federal jurisdiction exists under the FTCA. See
Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir. 1993)
(“Presentment of an administrative claim is jurisdictional
and must be pleaded and proven by the FTCA claimant.”).
Although Plaintiff says he submitted his claim to the DOJ
– of which the Bureau of Prisons is a part – and received
some form of acknowledgment on August 20, 2014 (Doc. No.
82-1 at 49), Defendants dispute this fact. They say this letter
was responding to an FTCA claim and Mr. Shah provides no
proof to support his allegation. And since it was Mr. Shah's
burden to show he properly exhausted this claim, he should
have provided a copy of his mailing. Based on these facts, I
recommend dismissal for failure to exhaust.
But this recommendation is not fatal to Mr. Shaw's fourth
claim. As the United States notes, Plaintiff raised this same
FTCA claim in Shah v. Wooten, et al., 2:15CV00078-BSM-

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2

Shah v. Wingo, Not Reported in Fed. Supp. (2016)

BD and, in that case, he properly exhausted his fourth claim
prior to filing suit. (Doc. No. 87 at 6-7.) So I will therefore
recommend dismissal of this claim without prejudice so it
may proceed in 2:15CV00078.
IT IS, THEREFORE, RECOMMENDED THAT:

and July 29, 2014 (TRT-SCR-2015-02567) be DISMISSED
without prejudice.
B. His claim arising on December 13, 2014 (TRTSCR-2015-01377) be DISMISSED with prejudice as barred
by res judicata.

1. Defendants' Motion for Partial Summary Judgment (Doc.
No. 80) be GRANTED.

3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that
an in forma pauperis appeal from an Order adopting these
recommendations would not be taken in good faith.

2. Plaintiff's FTCA claims against Defendant United States of
America be DISMISSED as follows:

IT IS SO RECOMMENDED this 14th day of January, 2016.

A. His claims submitted on October 15, 2014 (TRTSCR-2015-00222), January 8, 2015 (no number available),

All Citations
Not Reported in Fed. Supp., 2016 WL 4766502

Footnotes
1

Under the doctrine of res judicata “a final judgment on the merits of an action precludes the parties or their
privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S.
90, 94 (1980).

End of Document

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3

Shah v. Wingo, Not Reported in Fed. Supp. (2016)

2016 WL 4744150
Only the Westlaw citation is currently available.
United States District Court,
E.D. Arkansas, Eastern Division.
Vivek SHAH, Reg. # 43205-424, Plaintiff
v.
Michelle WINGO, Physician's Assistant,
FCC-Forrest City Low, et al., Defendants.
Case No. 2:15-cv-00004 KGB-JJV
|
Signed 09/12/2016
Attorneys and Law Firms
Vivek Shah, Lexington, KY, pro se.
Jamie Goss Dempsey, U. S. Attorney's Office, Little Rock,
AR, for Defendants.

ORDER
Kristine G. Baker, United States District Judge
*1 The Court has reviewed the three Proposed Findings and
Partial Recommended Dispositions (“Recommendations”)
submitted by United States Magistrate Judge Joe J. Volpe
(Dkt. Nos. 85, 89, 93). No objections have been filed to any
of the Recommendations, and the time to file objections has
passed. After careful review, the Court concludes that the
Recommendations should be, and hereby are, approved and
adopted in their entirety as this Court's findings in all respects.
It is, therefore, ordered that:

End of Document

1. Defendants' motion for partial summary judgment is
granted (Dkt. No. 80).
2. Plaintiff Vivek Shah's claims against defendant Summer
Birkhead are dismissed without prejudice due to Mr. Shah's
failure to exhaust administrative remedies against Ms.
Birkhead.
3. Mr. Shah's Federal Torts Claims Act claims against
defendant United States of America are dismissed as follows:
A. Mr. Shah's claims submitted on October 15, 2014 (TRTSCR-2015-00222), January 8, 2015 (no number available),
and July 29, 2014 (TRT-SCR-2015-02567) are dismissed
without prejudice.
B. Mr. Shah's claim arising on December 13, 2014 (TRTSCR-2015-01377) is dismissed with prejudice as barred by
res judicata.
4. Defendant Michelle Wingo's motion for partial summary
judgment is granted (Dkt. No. 90).
5. Mr. Shah's claims against Ms. Wingo are dismissed with
prejudice.
6. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an in forma pauperis appeal from this Order would not
be taken in good faith.
So ordered this the 12th day of September, 2016.
All Citations
Not Reported in Fed. Supp., 2016 WL 4744150
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1

Vazquez v. Hometown Health Center of Amsterdam, NY, Not Reported in Fed. Supp....

reviewed plaintiff's present IFP motion and determines that he
2022 WL 2304213
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Christopher J. VAZQUEZ, Plaintiff,
v.
HOMETOWN HEALTH CENTER
OF AMSTERDAM, NY, Defendant.
No. 1:21-CV-1371 (MAD/CFH)
|
Signed 06/27/2022
Attorneys and Law Firms
Christopher J. Vazquez, 45 Arnold Ave., Unit 2, Amsterdam,
New York 12010, Plaintiff pro se.

REPORT-RECOMMENDATION AND ORDER
Christian F. Hummel, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Christopher J. Vazquez (“plaintiff”)
purported to commence this action on December 22, 2021, by
filing a complaint. See Dkt. No. 1 (“Compl.”). Plaintiff did
not pay the filing fee or submit an application for leave to
proceed in forma pauperis (“IFP”). See id. Accordingly, the
Court administratively closed the case with an opportunity to
comply with the filing fee requirement. See Dkt. No. 2. The
Order directed plaintiff to either submit the full $402 filing
fee or complete an IFP application within thirty days of the
filing date of the Order. See id. at 2. The Order was filed on
December 22, 2021. See id. Thus, plaintiff had until January
21, 2022, to timely pay the filing fee or file an IFP application.
Plaintiff was sent a copy of this order by regular mail. Plaintiff
submitted an IFP motion on February 28, 2022, 38 days past
the deadline set forth in the administrative closure order. See
Dkt. No. 3.
Despite plaintiff's untimeliness, given the fact that he
is proceeding pro se, and due to special solicitude, the
undersigned will consider this belated filing. Plaintiff has
previously failed to follow these filing requirements, but the
undersigned has nevertheless considered the IFP application.
See Vazquez v. Times Union Newspaper, 1:21-CV-1359
(DNH/CFH), Dkt. No. 5 at 1-2. The undersigned has

financially qualifies to proceed IFP for the purpose of filing. 1
See Dkt. No. 3.

II. Initial Review
A. Legal Standard
Section 1915 2 of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B). It is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court
must construe his [or her] submissions liberally and interpret
them to raise the strongest arguments that they suggest.”
Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir.
2014) (per curiam) (citation and internal quotation marks
omitted). This does not mean the Court is required to accept
unsupported allegations that are devoid of sufficient facts
or claims. Although detailed allegations are not required at
the pleading stage, the complaint must still include enough
facts to provide the defendants with notice of the claims
against them and the grounds on which these claims are
based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Pro se
litigants are “not exempt ... from compliance with relevant
rules of procedural and substantive law[.]” Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983) (citation omitted). Ultimately,
the plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal,
556 U.S. at 678 (citation omitted).
*2 Pleading guidelines are set forth in the Federal Rules
of Civil Procedure (“Fed. R. Civ. P.”). Specifically, Rule
8 provides that a pleading which sets forth a claim for
relief shall contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV.
P. 8(a)(2). “The purpose ... is to give fair notice of the

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Vazquez v. Hometown Health Center of Amsterdam, NY, Not Reported in Fed. Supp....

claim being asserted so as to permit the adverse party the
opportunity to file a responsive answer, prepare an adequate
defense and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y.
1999) (internal quotation marks and citations omitted). Rule
8 also requires the pleading to include “a short and plain
statement of the grounds for the court's jurisdiction” and “a
demand for the relief sought....” FED. R. CIV. P. 8(a)(1), (3).
Although “[n]o technical form is required,” the Federal Rules
make clear that each allegation contained in the pleading
“must be simple, concise, and direct.” Id. at 8(d)(1).
Further, Rule 10 provides in pertinent part that:

[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.

FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too [ ] heavy [a] burden in terms of defendants’ duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). The
Second Circuit has held that “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citation omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citation omitted). If
dismissal is warranted and the plaintiff is pro se, the court
generally affords the plaintiff leave to amend the complaint.
See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).

B. Plaintiff's Filing History 3
Plaintiff has a history of filing in the Northern District of
New York, untimely IFP applications and complaints that
are often dismissed at the pleading stage. The following
recitation of plaintiff's filing history has been derived from
Chief Judge Suddaby's Show Cause Order in case number
1:22-PF-2 (GTS), Dkt. No. 1 at 2-4:
1. Vazquez v. Dollar General Corp., 1:21-CV-0330 (BKS/
CFH), Dkt. No. 14 (dismissing plaintiff's complaint
without prejudice); Dkt. No. 15 (entering judgment
dismissing plaintiff's complaint following his failure to
file an amended complaint); see 2021 WL 4407817, at
*4 (N.D.N.Y. Sept. 27, 2021), motion for relief from
judgment denied, 2022 WL 279560 (N.D.N.Y. Jan. 31,
2022). 4
2. Vazquez v. Times Union Newspaper, 1:21-CV-1359
(DNH/CFH), Dkt. No. 2 (ordering administrative
closure for plaintiff's failure to pay the filing fee or file
an IFP motion); Dkt. Nos. 5, 7, 8 (granting plaintiff's
belatedly filed IFP motion but dismissing the complaint
with prejudice and without leave to amend for failure
to state a claim or establish subject matter jurisdiction);
see 2022 WL 837474, at *4 (N.D.N.Y. Mar. 1, 2022),
report and recommendation adopted, 2022 WL 833370
(N.D.N.Y. Mar. 21, 2022).
*3 3. Vazquez Carbuccia v. State of New York,
1:22-CV-0196 (GTS/CFH), Dkt. No. 2 (ordering
administrative closure for plaintiff's failure to pay the
filing fee or file an IFP motion).
4. Vazquez v. St. Mary's Healthcare, 1:22-CV-0317 (GTS/
TWD), Dkt. No. 2 (ordering administrative closure for
failure to pay the filing fee or file an IFP motion);
Dkt. No. 7 (recommending dismissal of the complaint
for failure to state a claim or establish subject matter
jurisdiction); see 2022 WL 1659194, at *4 (N.D.N.Y.
May 25, 2022).
Based on these filings, and plaintiff “becom[ing] increasingly
abusive when communicating with Court staff[,]” on May
2, 2022, Chief Judge Suddaby ordered plaintiff to, within
fourteen days, “show cause, in writing, why he should not
be enjoined from filing any future pleadings or documents of
any kind (including motions) in the Northern District of New
York pro se without prior permission of the Chief Judge or

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Vazquez v. Hometown Health Center of Amsterdam, NY, Not Reported in Fed. Supp....

his or her designee[.]” In re: Christopher J. Vazquez, 1:22PF-002 (GTS), Dkt. No. 1 at 4, 8. Plaintiff did not respond
within fourteen days and on May 23, 2022, Chief Judge
Suddaby entered a pre-filing injunction pursuant to 28 U.S.C.
§ 1651(a), permanently enjoining plaintiff from filing any
documents in the Northern District without prior permission
of the Chief Judge or his or her designee. See id. at Dkt. No.
2. Plaintiff's filings in the present matter were filed prior to
Chief Judge Suddaby's imposition of the injunction and, as
such, the undersigned will proceed to review the complaint's
sufficiency under the § 1915 standard. See id. at 7 (“[N]othing
in this Pre-filing Order ... affects his rights in any of his
currently pending actions[.]”).

C. Plaintiff's Complaint
Plaintiff does not submit a formal complaint in this matter;
rather, he submits a two-page, handwritten letter seeking
to sue “Hometown Health Center[ ] of Amsterdam, NY
for Emotional Distress and abuse of process.” Compl. at
1. Plaintiff contends that Hometown Health Center “denied
[him] the Narcotics that [he] requested and gave [him] a
refer[r]al to pain management.” Id. Plaintiff asserts that as to
his request for Percocet, it would be “logical” for Hometown
Health Center to “need [his] doctor[’]s notes from [his]
former primary [care provider] and surgeon” but that he “had
every right to be served” a Xanax prescription. Id. Plaintiff
seeks “25,000 USD, non-negotiable.” Id. at 2.
In a letter to the Court filed May 6, 2022, plaintiff states,
“I need 25 million USD from St. Mary's Institution Nonnegotiable. I need 25 million USD from Hometown Health
Center(s) in Amsterdam New York. Non-negotiable. Both
of these, ‘Institutions’ denied me my God given resources
even after I began ‘pain management services.’ ” Dkt. No.
7. 5 Plaintiff also filed a letter seeking “an Oath, to insure
confidentiality [of] All Courthouse Matters” and “diplomatic
immunity[.]” Dkt. No. 6. 6

D. Analysis
*4 Plaintiff's complaint does not comply with the pleading
standards set forth in Fed. R. Civ. P. 8 and 10. Plaintiff
provides next-to-no context for his claims such as when
or why he requested medications, when or why he was
denied the medications, or how he was harmed by the denial.

See Compl. This is insufficient to state a claim for relief.
See Twombly, 550 U.S. at 555 (“Factual allegations must
be enough to raise a right to relief above the speculative
level[.]”). 7
Plaintiff has also failed to establish this Court's subject
matter jurisdiction. See Walcker v. Hovey, No. 5:17-CV-889
(TJM/TWD), 2017 WL 4417753, at *2 (N.D.N.Y. Sept.
13, 2017), report and recommendation adopted, 2017 WL
4417680 (N.D.N.Y. Oct. 3, 2017) (citation omitted) (“[T]he
Court's initial review under 28 U.S.C. § 1915(e) must
include consideration of whether the court has subject matter
jurisdiction over the plaintiff's claims.”). “In order to invoke
federal question jurisdiction, the plaintiff's claims must arise
‘under the Constitution, laws, or treaties of the United States.’
” Morillo v. Trexx, No. 5:17-CV-01125 (GTS/TWD), 2017
WL 6372569, at *3 (N.D.N.Y. Nov. 6, 2017), report and
recommendation adopted, 2017 WL 6372780 (N.D.N.Y. Dec.
12, 2017) (quoting 28 U.S.C. § 1331). “Federal question
jurisdiction may be properly invoked only if the plaintiff's
complaint necessarily draws into question the interpretation
or application of federal law.” New York v. White, 528
F.2d 336, 338 (2d Cir. 1975). In other words, “[f]ederal
question jurisdiction exists where the complaint ‘establishes
either that federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on a resolution
of a substantial question of federal law.’ ” Times Union
Newspaper, 2022 WL 837474, at *3 (quoting Franchise Tax
Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1,
27-28 (1983)). Plaintiff cites no federal statute or provision
of the Constitution under which he is attempting to bring his
complaint. See Compl.
Plaintiff has also failed to establish diversity jurisdiction.
Diversity jurisdiction can be established when the case
is between citizens of different States and the “matter in
controversy exceeds the sum or value of $75,000[.]” 28
U.S.C.A. § 1332(a)(1). Plaintiff lives in Amsterdam, New
York, and is seeking to sue Hometown Health Center,
located in Amsterdam, New York. See Compl.; see also
St. Mary's Healthcare, 2022 WL 1659194, at *3 (“Plaintiff
cannot establish diversity jurisdiction because Plaintiff and
Defendant are all citizens of the same state, New York.
Plaintiff provides that he lives in Amsterdam, New York, and
St. Mary's Healthcare is located in Amsterdam, New York.”).
As the purported defendant is from the same State as plaintiff,
he has failed to establish diversity jurisdiction.

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Vazquez v. Hometown Health Center of Amsterdam, NY, Not Reported in Fed. Supp....

However, giving the utmost deference to his pro se status,
plaintiff's two-page complaint could be construed as raising
a medical malpractice claim. See Compl. The Federal Tort
Claims Act (“FTCA”) “confers jurisdiction on federal district
courts to hear claims against the United States alleging ‘injury
or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment.’ ” Williams v. United States, No. 03-CV-9909
(GEL), 2007 WL 951382, at *3 (S.D.N.Y. Mar. 22, 2007)
(citing 28 U.S.C. § 1346(b)). “Tort claims, such as claims
of medical malpractice, are actionable under the FTCA.” Id.
(citation omitted).
*5 Hometown Health Centers is a federally funded
institution; therefore, a claim could be brought
against them under the FTCA. See Hometown
Health Centers, https://www.hometownhealthcenters.org/
compliance-governance (last visited June 23, 2022)
(explaining that “Hometown Health Centers is a federal
Public Health Service employee. It receives US Department
of Health and Human Services (HHS) funding and has
Federal Public Health Service (PHS) deemed status regarding
certain health or health-related claims, including medical
malpractice claims, for itself and its covered individuals
through the [FTCA].”); Phillips v. Generations Fam. Health
Ctr., 723 F.3d 144, 147 (2d Cir. 2013) (citing 42 U.S.C.
§§ 233(g)-(n), 254b) (“[C]ertain health centers that receive
federal funding under the Public Health Service Act and
serve ‘medically underserved’ populations can be ‘deemed’
by HHS as federal health providers even if they are private
organizations. These federal health providers are considered
federal employees for purposes of medical malpractice
claims, and plaintiffs wishing to sue the providers or
their employees must comply with the requirements of the
FTCA.”). “Under the FTCA, before a claimant can file suit,
he or she must first present the claim to the appropriate federal
agency (in this case HHS) within two years of the date the
claim accrued[ ]” and a lawsuit may be brought only “once
the claim has been denied by the agency (or if the agency
has failed to make a decision within six months after the
claim was filed).” Phillips, 723 F.3d at 147 (citing 28 U.S.C.
§§ 2401(b), 2675(a)). “A plaintiff bears the burden to plead
and prove compliance with the exhaustion requirements of
the FTCA.” Spina v. Lu Feng Liu, 541 F. Supp. 3d 426, 433
(S.D.N.Y. 2021) (citations omitted).
Plaintiff does not allege that he filed a claim with HHS prior
to attempting to bring this action against Hometown Health

Center. See Compl. Moreover, plaintiff has not asserted
when the alleged actions occurred; therefore, the undersigned
cannot engage in an analysis to determine if plaintiff's
complaint meets the FTCA's two-year statute of limitations
period. See Torres v. United States, 612 F. App'x 37, 39 (2d
Cir. 2015) (summary order) (citing 28 U.S.C. § 2401(b)).
“Where a plaintiff fails to exhaust administrative remedies,
the district court lacks subject matter jurisdiction over the
FTCA claims.” Spina, 541 F. Supp. 3d at 433 (citing Celestine
v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82
(2d Cir. 2005); Davila v. Gutierrez, 330 F. Supp. 3d 925,
936 (S.D.N.Y. 2018)). As plaintiff failed to plead compliance
with the FTCA's exhaustion requirements, the undersigned
recommends dismissal of the complaint without prejudice.
See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116
(2d Cir. 2017) (“[A] complaint must be dismissed without
prejudice where the dismissal is due to the court's lack of
subject matter jurisdiction[.]”).
Even absent these procedural deficiencies in plaintiff's filing,
“[u]nder New York law, the requisite elements of proof in a
medical malpractice action are (1) a deviation or departure
from accepted practice, and (2) evidence that such departure
was a proximate cause of injury or damage.” Torres v.
City of N.Y., 154 F. Supp. 2d 814, 819 (S.D.N.Y. 2001)
(citation omitted); see Corley v. United States, 11 F.4th 79,
85 (2d Cir. 2021) (explaining that state substantive law will
apply to a medical malpractice claim brought under the
FTCA). “Accordingly, in order to state a claim for medical
malpractice, a plaintiff must specify the injuries he suffered
and allege sufficient facts to demonstrate how his injuries
were caused by a deviation from the standard of care.” Isaac
v. City of N.Y., No. 17-CV-1021, 2018 WL 1322196, at *7
(S.D.N.Y. Mar. 13, 2018) (citations omitted). Plaintiff has
not alleged any injuries because of the denial of narcotics or
Xanax, nor in any way demonstrated that the denial was a
deviation from the standard of care. See Compl. Given the
numerous deficiencies in plaintiff's purported complaint, the
undersigned recommends dismissal. 8

III. Opportunity to Amend
*6 Generally, “[a] pro se complaint should not be dismissed
without the Court granting leave to amend at least once when
a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Nielsen v. Rabin, 746 F.3d 58, 62
(2d Cir. 2014) (citation omitted). “However, if the problems
with a complaint are ‘substantive’ rather than the result of an

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Vazquez v. Hometown Health Center of Amsterdam, NY, Not Reported in Fed. Supp....

‘inadequately or inartfully pleaded’ complaint, an opportunity
to re-plead would be ‘futile’ and ‘should be denied.’ ”
Edwards v. Penix, 388 F. Supp. 3d 135, 144-45 (N.D.N.Y.
2019) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000)). “[L]ack of subject-matter jurisdiction is generally
viewed as a substantive defect.” Planck v. Schenectady Cnty.,
No. 1:12-CV-0336 (GTS/DRH), 2012 WL 1977972, at *6
(N.D.N.Y. June 1, 2012) (footnote omitted). As plaintiff has
not established jurisdiction, and in light of the problems
in plaintiff's filing history, the undersigned recommends
dismissing plaintiff's complaint without leave to amend. See,
e.g., St. Mary's Healthcare, 2022 WL 1659194, at *4 (citing
Johnson v. Progressive.com, 19-CV-11202 (CM), 2020 WL
589127, at *1 (S.D.N.Y. Feb. 5, 2020) (declining to grant pro
se plaintiff leave to amend in light of the plaintiff's “abusive
litigation history” and where amendment would be futile));
see also Times Union Newspaper, 2022 WL 833370, at *1
(dismissing with prejudice and without leave to amend).

ORDERED, that plaintiff's application to proceed in forma
pauperis (Dkt. No. 3) will be considered, and, upon
consideration, is GRANTED for purposes of filing only; and
it is further
RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be
DISMISSED WITHOUT PREJUDICE and WITHOUT
LEAVE TO AMEND.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a). 9

IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby

All Citations
Not Reported in Fed. Supp., 2022 WL 2304213

Footnotes
1

Plaintiff is advised that although he has been granted IFP status, he is still required to pay any costs and fees
that he may incur in this matter, including, but not limited to, any copying fees or witness fees.

2

The language of 1915 suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. §
1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits
an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that
section, however, as making IFP status available to any litigant who can meet the governing financial criteria.
See, e.g., Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

3

All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been
provided to plaintiff.

4

Although the undersigned provides the Westlaw citations for plaintiff's other cases in the Northern District,
copies have not been provided to plaintiff as he was provided copies by certified and/or regular mail when
the orders or decisions were filed.

5

Plaintiff filed an identical letter in Vazquez v. St. Mary's Healthcare, 1:22-CV-317 (GTS/TWD), Dkt. No. 5.

6

Plaintiff filed an identical letter in Vazquez v. St. Mary's Healthcare, 1:22-CV-317 (GTS/TWD), Dkt. No. 6.

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5

Vazquez v. Hometown Health Center of Amsterdam, NY, Not Reported in Fed. Supp....

7

In a separate letter, plaintiff seeks “Diplomatic Immunity[.]” Dkt. No. 6. Diplomatic immunity protects “those
most integral to the diplomatic mission, active ‘diplomatic agents,’ defined to include ‘the head of the mission
or a member of the diplomatic staff of the mission.’ ” Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436,
442 (2d Cir. 2019) (footnote and citation omitted). Plaintiff has in no way established that he is entitled to
diplomatic immunity. See Compl; Dkt. No. 6.

8

Plaintiff's letter submitted in May 2022, mentions “St. Mary's Institution[,]” although he does not name St.
Mary's in his complaint. Dkt. No. 7; see Compl. The undersigned notes that plaintiff was likely not attempting
to bring St. Mary's into this action as in his letter, plaintiff lists the case number for the present action as well
as his case against St. Mary's. See Dkt. No. 7. Plaintiff filed an identical letter in his purported action against
St. Mary's. See St. Mary's Healthcare, 1:22-CV-317, Dkt. No. 5.

9

If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three (3)
additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from
the date the Report-Recommendation & Order was mailed to you to serve and file objections. FED R. CIV. P.
6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).

End of Document

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6

Brown v. Peters, Not Reported in F.Supp. (1997)

1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.

DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,

1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which

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1

Brown v. Peters, Not Reported in F.Supp. (1997)

forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo

determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is

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2

Brown v. Peters, Not Reported in F.Supp. (1997)

no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.

CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.

ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.

BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In

October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,

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Brown v. Peters, Not Reported in F.Supp. (1997)

upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eightysix days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.

DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork

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4

Brown v. Peters, Not Reported in F.Supp. (1997)

relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.

defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.

CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further

Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that

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5

Brown v. Peters, Not Reported in F.Supp. (1997)

RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be

filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355

Footnotes
1

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

End of Document

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6

Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

1995 WL 316935
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Mina POURZANDVAKIL, Plaintiff,
v.
Hubert HUMPHRY, Judisicial Systeam of The State of
Minnesota and Olmested County Court Systeam, and
State of Minnesota, Saint Peter State Hospital, Doctor
Gammel Stephelton, et el Erickson, North West Bank
and Trust, Olmested County Social Service, J.C. Penny
Insurnce, Metmore Finicial, Traveler Insurnce, Comecial
Union Insurnce, Hirman Insurnce, Amrican State
Insurnce, Farmers Insurnce, C. O Brown Insurnce, Msi
Insurnce, Steven Youngquist, Kent Chirstain, Micheal
Benson, United Airline, Kowate Airline, Fordmotor
Cridite, First Bank Rochester, George Restwich,
British Airways, Western Union, Prudenial Insurnce,
T.C.F. Bank, Judge Sandy Kieth, Judge Niergari,
Olmestead County Judgering, Judge Mores, Judge
Jacobson, Judge Challien, Judge Collin, Judge Thomase,
Judge Buttler, Judge Morke, Judge Moweer, Sera
Clayton, Susan Mudhaul, Ray Schmite, Defendants. 1
Civ. A. No. 94-CV-1594.
|
May 23, 1995.

Arthur, Chapman, McDonough, Kettering & Smetak, P.A.,
Minneapolis, MN, Eugene C. Shermoen, Jr., of counsel, for
J.C. Penney Ins. Co. and Metropolitan Ins. Co.
Shapiro & Kreisman, Rochester, NY, John A. DiCaro, of
counsel, for Metmor Financial, Inc.
Costello, Cooney & Fearon, Syracuse, Paul G. Ferrara, Robert
J. Smith, of counsel, for Travelers Ins. Companies; Hirman
Ins.; Commercial Union Ins. Companies.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse, Thomas
N. Kaufmann, of counsel, for American States Ins. Co. and
Prudential Ins. Co.
Steven C. Youngquist, Rochester, MN, pro se.
Thomas J. Maroney, U. S. Atty., Syracuse, NY, William F.
Larkin, Asst. U. S. Atty., of counsel, for Michael Benson,
Postmaster N. D. of New York.
George F. Restovich & Associates, Rochester, MN, George F.
Restovich, of counsel, for George F. Restovich.
Conboy, McKay, Bachman & Kendall, L.L.P, Watertown, NY,
George K. Myrus, of counsel, for Western Union.
Richard Maki, Rochester, MN, pro se.

MEMORANDUM-DECISION AND ORDER
POOLER, District Judge.

Attorneys and Law Firms
Hubert H. Humphrey, III, Atty. Gen. of the State of Minn.,
St. Paul, MN, Jerome L. Getz, Asst. Atty. Gen., of counsel,
for Hubert H. Humphry, III, Judicial System of the State
of Minnesota, St. Peter Regional Treatment Center, Gerald
Gammell, MD, William Erickson, MD, Thomas Stapleton,
MD, the Honorable James L. Mork, Chief Judge Anne
Simonett, Judge Jack Davies, Judge Roger Klaphke, Judge
Dennis Challeen, and Judge Lawrence Collins.
Condon & Forsyth, P.C., New York City, Stephen J. Fearon,
Michael J. Holland, of counsel, for British Airways, P.L.C.
and Kuwait Airways Corp.
Dunlap & Seeger, P.C., Rochester, MN, Gregory J. Griffiths,
of counsel, for Olmsted County, Raymond Schmitz, Susan
Mundahl, Norwest Bank Minnesota, N.A. (the Northwest
Bank & Trust), C.O. Brown Agency, Inc.

INTRODUCTION
*1 In the four and one-half months since she filed this
action, plaintiff Mina Pourzandvakil has filed three amended
complaints and ten motions. She also has sought and received
entry of default against ten defendants, none of whom she
properly served. She twice has sought and been denied
temporary restraining orders. She has included in her action
defendants with no apparent connection to this forum, that
were vindicated in actions she brought in other forums.
In response, several individual defendants and groups of
defendants have filed a total of twelve motions, some seeking
vacation of the defaults entered against them, some seeking
dismissal and others seeking both. We grant defendants'
motions insofar as they seek vacation of the clerk's entries of
default and dismissal of the complaint. We vacate sua sponte

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1

Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

the entries of default against the non-moving defendants.
Finally, we dismiss the complaint in its entirety against all
defendants.

easy summarization and will be addressed only insofar as they
are relevant to the various motions.
*2 The Clerk of the Court has entered default against

BACKGROUND
Pourzandvakil commenced this action by filing a complaint
in the Office of the Clerk on December 9, 1994 (Docket No.
1). The complaint named as defendants the Attorney General
of the State of Minnesota, the State of Minnesota and Olmsted
County, Minnesota judicial systems, various Minnesota
judges and prosecutors, St. Peter State Hospital in Minnesota
and various doctors who worked at St. Peter's. Without
specifying the time or defendant involved, the complaint
accused the defendants of kidnapping Pourzandvakil and her
daughter, torturing Pourzandvakil in the Mayo Clinic since
April 1985, and causing Pourzandvakil and her daughter to
suffer physically, financially and emotionally. Pourzandvakil
twice requested that we issue a temporary restraining order.
We denied both requests. See Order entered December 14,
1994 (Docket No. 4) and Memorandum-Decision and Order
entered December 22, 1994 (Docket No. 6).
On December 27, 1994, Pourzandvakil filed an amended
complaint (the “first amended complaint”) (Docket No.
7) that appears to differ from the original complaint
by adding British Airways as a defendant without
making any allegations against British Airways. The first
amended complaint also differs by requesting additional
damages for prior cases and adding descriptions of several
previous cases. Annexed to the first amended complaint
is another document labeled amended complaint (the
“annexed amended complaint”) (Docket No. 7) whose
factual allegations differ substantially from both the original
complaint and the first amended complaint. The annexed
amended complaint also adds British Airways as a party
but specifies only that Pourzandvakil has travelled on that
airline and that British Airways, along with other airlines on
which Pourzandvakil has travelled, is aware of all the crimes
committed against her.
Pourzandvakil filed yet another amended complaint on
January 13, 1995 (the “second amended complaint”)
(Docket No. 11). The second amended complaint adds
as defendants several banks, other financial institutions,
insurance companies, insurance agents or brokers, attorneys
and airlines as well as the Postmaster of Olmsted County and
Western Union. The allegations against these defendants defy

the following defendants: J.C. Penny Insurnce (sic) 2 (“J.C.
Penney”), British Airways, Kowate (sic) Airline (“Kuwait”),
MSi Insurnce (sic) (“MSI”), Judge Mork, Steven Youngquist
(“Youngquist”), Prudncial Insurnce (sic) (“Prudential”), Ford
Motor Credit (“Ford”), First Bank Rochester, and TCF Bank
(“TCF”). Based on the submissions Pourzandvakil made in
support of her requests for entry of default, it appears that she
served these defendants by certified mail.
The court has received answers from the following
defendants: Hubert H. Humphrey III, St. Peter Regional
Treatment Center, and Drs. Gerald H. Gammell, William
D. Erickson, and Thomas R. Stapleton (joint answer
filed January 9, 1995); Olmsted County, Ray Schmitz
(“Schmitz”), Susan Mundahl (“Mundahl”), C.O. Brown
Agency, Inc. (“C.O. Brown”) (answer to amended complaint
filed January 23, 1995); George Restovich (“Restovich”)
(answer to complaint or amended complaint filed January
30, 1995); Norwest Corporation (“Norwest”) (answer to
amended complaint filed January 31, 1995, amended
answer of Norwest Bank Minnesota, N.A. to amended
complaint filed February 13, 1995); Travelers Insurance
Company (“Travelers”) (answer filed February 1, 1995);
Michael Benson (“Benson”) (answer filed February 6, 1995);
Hirman Insurance (“Hirman”) (answer filed February 6,
1995); Richard Maki (“Maki”) (answer to complaint or
amended complaint filed February 17, 1995); Western Union
(answer filed February 21, 1995); Steven C. Youngquist
(“Youngquist”) (answer to complaint or amended complaint
filed February 23, 1995); Kuwait (answer filed March 6,
1995); J.C. Penney (answer filed March 22, 1995); Susan
E. Cooper 3 (answer to amended complaint filed March 24,
1995); and Chief Judge Anne Simonett, Judge Jack Davies,
Judge Roger Klaphke, Judge Dennis Challeen and Judge
Lawrence Collins (joint answer filed April 3, 1995).
The court has also received a total of ten motions from
Pourzandvakil since February 27, 1995. She moved for a
default judgment against defendants J.C. Penney, First Bank
Rochester, Prudential, Ford, MSI, British Airways, and TCF.
She moved for immediate trial and “venue in a different
place” against several defendants and also requested action
according to law and criminal charges. Finally, she made
motions opposing defendants' motions.

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Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

The court also has received a total of thirteen motions 4
from defendants. Several of the defendants moved for
dismissal either under Rule 56 or Rule 12 of the Federal
Rules of Civil Procedure. For instance, Commercial Union
Insurance Companies (“Commercial”) moved for dismissal
of Pourzandvakil's complaint pursuant to Fed. R. Civ. P.
12(b) or, in the alternative, for a more definite statement.
Commercial argued that Pourzandvakil's complaint against
it is barred by res judicata and collateral estoppel and that
this court does not have subject matter jurisdiction over the
complaints against Commercial. American States Insurance
Company (“ASI”) moved for dismissal based on plaintiff's
failure to state a claim upon which relief can be granted.
ASI further moved for an order enjoining Pourzandvakil
from further litigation against it. Maki moved for summary
judgment based on lack of personal jurisdiction, improper
venue, plaintiff's failure to state a claim upon which relief can
be granted, and lack of subject matter jurisdiction. Hubert H.
Humphrey, III, the Judicial System of the State of Minnesota,
Judge James L. Mork, St. Peter Regional Treatment Center
and Drs. Gammell, Erickson and Stapleton (collectively, the
“state defendants”) moved for summary judgment alleging
lack of personal jurisdiction, improper venue, plaintiff's
failure to state a claim on which relief can be granted,
lack of subject matter jurisdiction, sovereign immunity, and,
on behalf of Judge Mork and the judicial system, absolute
judicial immunity. The state defendants also requested costs
and attorney's fees. Travelers moved for summary judgment
based on res judicata and/or collateral estoppel, frivolity, lack
of subject matter jurisdiction, and improper venue. Travelers
sought a transfer of venue to Minnesota in the alternative.
Hirman moved for summary judgment based on frivolity, lack
of subject matter jurisdiction, and improper venue. Hirman
also sought transfer of venue in the alternative. Olmsted
County, Schmitz, Mundahl, C.O. Brown and Norwest sought
dismissal based on lack of personal jurisdiction, improper
venue, and plaintiff's failure to state a claim upon which
relief can be granted. With respect to Schmitz and Mundahl,
defendants sought dismissal based on absolute prosecutorial
immunity, and with respect to C.O. Brown, defendants sought
dismissal on res judicata grounds. Metmor Financial, Inc.
(“Metmor”) sought dismissal based on lack of personal
jurisdiction, lack of subject matter jurisdiction, improper
venue, and plaintiff's failure to state a claim upon which relief
can be granted. Finally, Restovich moved for dismissal based
on lack of personal jurisdiction. 5
*3 Four defendants, British Airways, Kuwait, Prudential,
and Youngquist, sought vacatur of the defaults entered against

them. Prudential coupled its request with a request for an
order enjoining plaintiff from filing or intervening in any
litigation against it. Youngquist also requested dismissal of
the complaint based on lack of personal jurisdiction and lack
of subject matter jurisdiction.

ANALYSIS
The Defaults
We vacate the defaults entered in this matter because plaintiff
improperly served defendants. Each application for entry of
default shows service by certified mail, which is not permitted
by relevant federal, New York or Minnesota rules. Under the
Federal Rules of Civil Procedure, service on an individual
may be made by (1) delivery to the named defendant; or
(2) delivery to a person of suitable age and discretion at the
defendant's dwelling house or usual place of abode; or (3)
delivery to an agent authorized by law or by the defendant
to receive service of process. Fed. R. Civ. P. 4(e)(2). Service
on an individual also can be accomplished through a method
authorized by the state in which the district court sits or in
which the individual is located. Fed. R. Civ. P. 4(e)(1). Service
on a corporation may be accomplished in a judicial district
of the United States (1) pursuant to a method authorized by
the law of the state in which the court sits or in which the
corporation is located; or (2) by delivering a copy of the
summons and complaint to an officer, managing or general
agent, or to any other agent authorized by statute to receive
service and, if the statute so requires, by also mailing a copy to
the defendant. Fed. R. Civ. P. 4(h)(1) and 4(e)(1). Neither New
York nor Minnesota law authorizes personal service on an
individual or corporation by certified mail. See N.Y. Civ. Prac.
L. & R. §§ 308, 311 (McKinney Supp. 1995); N.Y. Bus. Corp.
Law § 306 (McKinney Supp. 1995); Minn. Stat. § 543.08
(1995); Minn. R. 4.03 (1995). Finally, service on states,
municipal corporations or other governmental organizations
subject to suit can be effected by (1) delivering a copy of the
summons and complaint to the state's chief executive officer;
or (2) pursuant to the law of the state in which the defendant
is located. Fed. R. Civ. P. 4(j)(2). Minnesota law does not
authorize service on a governmental entity by certified mail.
See Minn. R. 4.03(d) and (e) (1995).
We therefore grant the motions by British Airways,
Prudential, Kuwait, and Youngquist to vacate the defaults
entered against them based both on the defective service and
also on the meritorious defenses discussed below. We vacate
sua sponte the entries of default against MSI, Ford, First Bank

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Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

Rochester and TCF, all of whom were served improperly
and preserved the service issue by raising it or declining to
waive it. Concomitantly, we deny Pourzandvakil's motion
for a default judgment against J.C. Penney, First Bank
Rochester, Prudential, Ford, MSI, British Airways and TCF.
We vacate sua sponte the entry of default against J. C.
Penney, which preserved the issue of service in its answer.
By moving to dismiss or for summary judgment without
raising the issue of service, Judge Mork may have waived
the service issue. However Judge Mork objected to personal
jurisdiction as inconsistent with due process and otherwise
presented meritorious defenses. We therefore treat his motion
for summary judgment as including a motion to vacate the
entry of default and accordingly grant it.
II. The Jurisdictional Arguments
*4 In addition to raising various other grounds for dismissal,
such as plaintiff's failure to state a claim on which relief can be
granted and res judicata, most of the moving defendants urge
(1) that this court lacks jurisdiction over either their persons
or the subject matter of the controversy or (2) that this action
is improperly venued. As we must, we examine jurisdiction
and venue first.
A. Personal Jurisdiction
Maki, the state defendants, Olmsted County, Schmitz,
Mundahl, C.O. Brown, Norwest, Metmor, Restovich and
Youngquist each allege that this court cannot exercise
personal jurisdiction over them consistent with due process
constraints. In support of their motions, these defendants
present affidavits showing that they have had no significant
contacts with the state of New York relevant to this lawsuit
and that their contacts with Pourzandvakil all occurred in
Minnesota. Nothing in plaintiff's voluminous submissions
links any of these defendants with New York. Plaintiff's
extraterritorial service of process can be effective only
under any of the following circumstances: (1) if defendants
could be subjected to the jurisdiction of a court of general
jurisdiction in New York State; (2) if the defendant is subject
to federal interpleader jurisdiction; (3) if the defendant is
joined pursuant to Rule 14 or Rule 19 of the Federal Rules
of Civil Procedure and is served within a judicial district
of the United States and not more than 100 miles from the
place from which the summons issues; (4) if a federal statute
provides for long-arm jurisdiction; or (5) if plaintiff's claims
arise under federal law and the defendants could not be
subject to jurisdiction in the courts of general jurisdiction in
any state of the United States. Fed. R. Civ. P. 4(k). Defendants

are not subject to federal interpleader jurisdiction and they
were not joined pursuant to Rule 14 or Rule 19. In addition, no
federal long-arm statute is argued as a basis for jurisdiction,
and the moving defendants all would be subject to jurisdiction
in Minnesota. Therefore, we must look to New York's longarm statute to determine whether plaintiff's extraterritorial
service of process could be effective under the one ground
remaining pursuant to Rule 4(k). See N.Y. Civ. Prac. L. &
R. § 302 (McKinney Supp. 1995). This rule provides that
in order to obtain jurisdiction over a non-domiciliary, the
plaintiff must show both certain minimal contacts between
the defendant and the state (such as transacting any business
in the state) and that the harm plaintiff suffered springs
from the act or presence constituting the requisite contact.
Id. §302(a). The moving defendants have demonstrated that
plaintiff does not claim harm stemming from acts or contacts
within the purview of Section 302(a). Therefore, we grant
these defendants' motions to dismiss the complaint for lack of
personal jurisdiction.
B. Subject Matter Jurisdiction
Pourzandvakil's complaint does not contain the jurisdictional
allegations required by Fed. R. Civ. P. 8(a)(1). Several
defendants move for dismissal based either on this pleading
defect or on an affirmative claim that no subject matter
jurisdiction exists. Commercial, Travelers and Hirman
(collectively, the “moving insurance companies”) moved for
dismissal because plaintiff has not pled the complete diversity
of citizenship required for subject matter jurisdiction. The
state defendants, relying on District of Columbia Court
of Appeals v. Feldman, argue that we lack subject matter
jurisdiction over any issue that was determined in a
state court proceeding to which plaintiff was a party.
District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482 (1983). These issues include plaintiff's
hospitalization at St. Peter Regional Treatment Center.
Finally, Metmor also moved for dismissal based on lack of
subject matter jurisdiction because plaintiff has failed to plead
a jurisdictional basis.
*5 The moving insurance companies note correctly that
insofar as the claims against them can be deciphered, plaintiff
states that Traveler's and Commercial did not pay for damages
to Pourzandvakil's property, harassed her and cancelled
her policy. Pourzandvakil does not mention Hirman in her
complaint, but Hirman's attorney states that Pourzandvakil
informed him in a telephone conversation that her complaint
against Hirman stemmed from actions it took as an agent of

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Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

Travelers in denying Pourzandvakil's 1985 property damage
claim.
The moving insurance companies argue that this court has
no jurisdiction over the state insurance law claims absent
complete diversity of citizenship between plaintiff and the
defendants. 28 U.S.C. § 1332. They point out that plaintiff
lists a Syracuse, New York address for herself and that
Kuwait's address as listed in the complaint is also in New
York. Therefore, they argue, there is no complete diversity
and this court lacks subject matter jurisdiction absent a
basis for pendent jurisdiction under 28 U.S.C. § 1367(a).
Section 1367(a) requires a relationship between the state
and federal claims so that “they form part of the same case
or controversy.” Id. Because plaintiff's claims of denial of
insurance coverage bear no apparent relationship to her other
claims of rape, torture, harassment and kidnapping, we do not
believe that an adequate basis for supplemental jurisdiction
exists. Id. Plaintiff's complaint therefore shows no basis
for subject matter jurisdiction against the moving insurance
companies, and we dismiss as against them. 6
We also agree with the state defendants that state court
decisions may render certain of plaintiff's claims against them
unreviewable either because of res judicata or lack of subject
matter jurisdiction. However, because plaintiff's claims are so
generally stated and so lacking in specifics, we are unable to
discern at this juncture what parts of her complaint would be
outside the jurisdiction of the court. In any case, we already
have determined that the state defendants are clearly entitled
to dismissal on personal jurisdiction grounds. As for Metmor,
we believe that plaintiff may be attempting to state a civil
rights claim by alleging a conspiracy to murder in connection
with a judge although she fails to articulate an actionable
claim. We note that we already have determined, in any case,
that Metmor is entitled to dismissal on personal jurisdiction
grounds.
C. Venue
Metmor, Travelers, Maki, Hirman, Norwest, Olmsted County,
C.O. Brown, Schmitz and Mundahl also allege that
Pourzandvakil's action is not properly venued in this court.
Although these defendants are entitled to dismissal on
independent grounds, improper venue also would support
dismissal as to these defendants. The general venue statute
provides that a diversity action, except as otherwise provided
by law, may be brought only in

(1) a judicial district where any
defendant resides, if all defendants
reside in the same State, (2) a judicial
district in which a substantial part of
the events or omissions giving rise to
the claim occurred, or a substantial
part of property that is the subject of
the action is situated, or (3) a judicial
district in which the defendants are
subject to personal jurisdiction at the
time the action is commenced, if there
is no district in which the action may
otherwise be brought.

*6 28 U.S.C. § 1391(a). Section 1391(b) provides that
federal question actions, except as otherwise provided by law,
may be brought only in

(1) a judicial district where any
defendant resides, if all defendants
reside in the same State, (2) a judicial
district in which a substantial part of
the events or omissions giving rise to
the claim occurred, or a substantial
part of property that is the subject of
the action is situated, or (3) a judicial
district in which any defendant may be
found, if there is no district in which
the action may otherwise be brought.

Id. § 1391(b). The majority of the defendants in this
action are residents of Minnesota and all of the events of
which Pourzandvakil complains occurred in Minnesota. No
defendant resides in the Northern District of New York, and
none of the conduct plaintiff complains of occurred in this
district. Therefore, venue in the Northern District of New
York is clearly improper. Where venue is laid in the wrong
district, the court “shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which
it could have been brought.” Id. § 1406(a). Because, as we
will explain below, Pourzandvakil's complaint not only fails
to state a claim upon which relief can be granted but is also
frivolous, we do not deem it to be in the interest of justice to
transfer this case to another district. The purpose of the court's

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Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

discretionary authority to transfer rather than dismiss in cases
of improperly laid venue is “to eliminate impediments to the
timely disposition of cases and controversies on their merits.”
Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)
(holding that it was an improper exercise of discretion to
dismiss rather than transfer when the statute of limitations on
a timely filed complaint ran between filing and dismissal). In
this case, as discussed below, a review of the complaint and
the plaintiff's submissions on these motions indicates that her
claims are frivolous. We therefore dismiss as to the moving
defendants both on venue grounds and on the other grounds
already identified as applicable. We note also that plaintiff
has made claims similar to those in this action against many
of the same defendants in the United States District Court
for the District of Minnesota. Pourzandvakil v. Price, Civ.
No. 4-93-207 (D.Minn. 1993). This action was dismissed by
Order to Show Cause entered April 12, 1993.
III. Failure to State a Claim on Which Relief Can be
Granted and Frivolity
Defendants ASI, Travelers, Hirman, Norwest, C.O. Brown,
Olmsted County, Schmitz, Mundahl, Prudential, Metmor, and
Youngquist as well as the state defendants have attacked the
sufficiency of plaintiff's complaint. Travelers and Hirman
urge that the complaint is frivolous while the remaining
defendants argue only that the complaint fails to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)
(6). 7 We already have dismissed against all the moving
parties except ASI on jurisdictional grounds and therefore
have the power to address the Rule 12(b)(6) issue only on
ASI's motion. See Bell v. Hood, 327 U.S. 678, 682-83 (1946)
(subject matter jurisdiction); Arrowsmith v. United Press Int'l,
320 F.2d 219, 221 (2d Cir. 1963) (personal jurisdiction).
We grant ASI's motion and note in passing that were we
empowered to reach the merits regarding the remaining
moving defendants, we also would dismiss the complaint
against them for failure to state a claim upon which relief
can be granted. We also dismiss sua sponte as frivolous the
complaint against all defendants who have not been granted
dismissal previously on jurisdictional grounds.
*7 Pourzandvakil has not specified a statutory or
constitutional basis for her claims against ASI or any of the
other defendants. She alleges that certain of the insurance
company defendants denied her claims for damages without
alleging that the denial was in any respect wrongful. She
also alleges in general terms that the defendants harassed,
tortured, kidnapped and raped her and perhaps were involved

in a murder plot but does not supply (1) the dates on which
these actions occurred, except to say that they began in 1984
and 1985; (2) the names of the specific defendants involved in
any particular conduct; or (3) a description of any particular
conduct constituting the harassment, torture or kidnapping.
She suggests without further detail that ASI was involved
in a plot to murder her by placing her in the Mayo Clinic.
Although plaintiff does not allege specific constitutional
provisions or statutes that defendants have violated, we
assume -- largely because many of the defendants involved
are state officials or state employees and she appears to
complain of certain aspects of various trials -- that she wishes
to complain of violations of her civil rights. Complaints
that rely on civil rights statutes are insufficient unless
“they contain some specific allegations of fact indicating a
deprivation of rights, instead of a litany of general conclusions
that shock but have no meaning.” Barr v. Abrams, 810 F.2d
358, 363 (2d Cir. 1987). A pro se plaintiff's complaint must be
construed liberally and should be dismissed only “if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976) (quotation omitted).
Pourzandvakil has not satisfied even this minimal test; her
complaint and submissions on this motion demonstrate that
she cannot prove any set of facts in support of her claim which
would entitle her to relief. Her complaint consists of a “litany
of general conclusions” rather than “specific allegations of
fact”. Barr, 810 F. 2d at 363.
Ordinarily we would allow plaintiff an opportunity to replead
to state specific allegations against ASI, but three factors
militate against this course of action. First, our December 22,
1994, Memorandum - Decision and Order denying plaintiff's
request for a temporary restraining order indicated that she
had not shown a likelihood of success on the merits of her
claim because she had not pled any specific actionable facts.
Despite the fact that plaintiff since has filed three amended
complaints, she still fails to set forth specific actionable
conduct. Second, the defendants' motions themselves have
alerted plaintiff to the need to show specific actionable facts,
and yet her voluminous submissions in opposition to the
motions contain no specific actionable facts. Finally, plaintiff
has asserted similar allegations against many of the same
defendants sued in this action -- although not ASI -- as well as
others in several different jurisdictions. See Pourzandvakil v.
Blackman, 8 Civ. No. 94-C944 (D.D.C. 1994), Pourzandvakil
v. Doty (E.D.N.Y. 1993), Pourzandvakil v. Price, Civ. No.
7 (D.Minn. 1993). Where the results are known to us these
actions resulted in dismissals for failure to state a claim upon

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which relief can be granted. Pourzandvakil v. Price, Civ.
No. 4-93-207, Order to Show Cause entered April 12, 1993;
Pourzandvakil v. Blackman, Civ. No. 94-C-94, Order entered
April 28, 1994, aff'd Civ. No. 94-5139 (D.C. Cir. 1994) (per
curiam). In the Minnesota case, dismissal took place after the
district court offered plaintiff an opportunity to amend her
pleading and plaintiff still was not able to offer specifics. 9
Even pro se complaints must show “some minimum level of
factual support for their claims.” Pourzandvakil v. Blackman,
Civ. No. 94-C-94, (quoting White v. White, 886 F. 2d 721, 724
(4th Cir. 1989)). We therefore dismiss plaintiff's complaint
against ASI for failure to state a claim upon which relief can
be granted. Fed. R. Civ. P. 12(b)(6).
*8 We note that in Pourzandvakil v. Blackman, Judge John
H. Pratt dismissed plaintiff's in forma pauperis complaint sua
sponte under 28 U.S.C. §1915(d), holding both that it failed
to state a claim on which relief can be granted and that it was
frivolous. We consider here whether we have the authority
to dismiss sua sponte plaintiff's complaint, which was not
filed in forma pauperis, as frivolous as against all non-moving
defendants. The Supreme Court explicitly has acknowledged
a district court's power under Section 1915(d) to dismiss as
frivolous a complaint which “lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The Supreme Court explicitly declined to rule, however, on
whether a district court has the authority to dismiss sua sponte
frivolous complaints filed by non-indigent plaintiffs. Id. at
329 n.8. The law in this circuit is that a district court may sua
sponte dismiss a frivolous complaint even if the plaintiff has
paid the filing fee. See Tyler v. Carter, 151 F.R.D. 537, 540
(S.D.N.Y. 1993), aff'd 41 F.3d 1500 (2d Cir. 1994); cf. Pillay v.
I.N.S., 45 F.3d 14, 17 (2d Cir. 1995) (per curiam) (dismissing
sua sponte appeal for which appellant had paid normal filing
fee). We believe that sua sponte dismissal is appropriate and
necessary here because (1) plaintiff's claims lack an arguable
basis in law and fact; (2) plaintiff has repeatedly attempted to
replead her claims without being able to articulate actionable
conduct; (3) some of plaintiff's claims have been tested in
other courts and found to be without merit; and (4) the issue
of frivolity has been presented by at least some of the moving
defendants.
We therefore dismiss with prejudice plaintiff's complaint as
frivolous as to all defendants -- regardless of whether they
have moved for dismissal -- that have not been granted
dismissal on jurisdictional grounds. We direct the clerk to
return plaintiff's filing fee to her. Tyler, 151 F.R.D. at 540.

IV. Requests for Sanctions, Costs, Attorney's Fees and
Injunction Against Filing Further Actions
Because plaintiff is pro se and appears to have a belief in
the legitimacy of her complaint, we do not believe that the
purpose of Rule 11 would be served by awarding sanctions.
See Carlin v. Gold Hawk Joint Venture, 778 F. Supp. 686,
694-695 (S.D.N.Y. 1991). Moreover, her litigiousness has not
yet reached the point at which courts in this circuit have
justified injunctive relief. See id. at 694 (and collected cases).
We therefore deny the requests of ASI and Prudential for
injunctive relief. Our refusal to grant sanctions and injunctive
relief, however, is conditioned on this dismissal putting an end
to plaintiff's attempts to sue these defendants on these claims
in this forum. Any further attempts by plaintiff to revive these
claims will result in our revisiting the issue of sanctions. Id.
at 695.

CONCLUSION
*9 All defaults entered by the clerk are vacated.
Plaintiff's complaint is dismissed in its entirety against
all moving and non-moving defendants. The dismissal of
the complaint against Maki, the state defendants, Olmsted
County, Schmitz, Mundahl, C.O. Brown, Norwest, Metmor,
Restovich, Youngquist, Commercial, Travelers and Hirman
is without prejudice as it is premised on this court's lack of
power either over the person of the defendant or the subject
matter of the controversy. See Voisin's Oyster House, Inc.
v. Guidry, 799 F.2d 183, 188-9 (5th Cir. 1986) (dismissal
for lack of subject matter jurisdiction is not a dismissal on
the merits); John Birch Soc'y. v. National Broadcasting Co.,
377 F.2d 194, 199 n.3 (2d Cir. 1967) (dismissal for lack of
subject matter jurisdiction implies no view of merits); Orange
Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871,
875 (3d Cir.) cert. denied, 322 U.S. 740(1944) (dismissal
for lack of personal jurisdiction is not a dismissal on the
merits). The dismissals against the remaining defendants are
with prejudice. All requests for sanctions and attorney's fees
are denied. The requests of defendants ASI and Prudential
for an injunction with respect to future litigation is denied.
However, plaintiff is cautioned that any litigation in this
forum attempting to revive the claims addressed herein may
subject her to sanctions. Plaintiff's motions are denied as
moot.
IT IS SO ORDERED.

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All Citations
Not Reported in F.Supp., 1995 WL 316935

Footnotes
1

Names in the caption are spelled to reflect plaintiff's complaint.

2

Plaintiff's spelling is idiosyncratic, and we preserve the spelling in its original form only where absolutely
necessary for accuracy of the record. Otherwise we substitute the word we believe plaintiff intended for the
word she actually wrote, e.g., “tortured” for “tureared.”

3

Susan E. Cooper is not named as a defendant in the original complaint or any amended complaint filed with
this court. From correspondence with Cooper's attorney, it appears that plaintiff sent Cooper a copy of a
different version of the complaint. Because the original of this version was not filed with the court, no action
against Cooper is pending in this court.

4

The court has also received three additional motions returnable May 22, 1995. The first -- from Judges Davies,
Klaphake, Challeen, Collins and Chief Judge Simonett requests summary judgment dismissing the complaint
based on lack of personal jurisdiction. The second by Western Union also requests summary judgment based,
inter alia, on plaintiff's failure to state a claim on which relief can be granted. The third, by British Airways,
also requests dismissal based, inter alia, on plaintiff's failure to state a claim on which relief can be granted.
All three motions are mooted by this memorandum-decision and order which dismisses the complaint in its
entirety against non-moving defendants for failure to state a claim on which relief can be granted.

5

The court also received an affidavit and memorandum of law in support of summary judgment from J.C.
Penney. However, the documents were not accompanied by a notice of motion.

6

We ordinarily would offer plaintiff an opportunity to amend her complaint because her submissions and
Kuwait's answer indicate two bases on which plaintiff might be able to argue diversity of citizenship. First,
although plaintiff lists her address in Syracuse, New York, she also has indicated on the civil cover sheet
that she is an Iranian Citizen and we are not aware of her residence status. As a permanent resident, she
would be deemed a citizen of the state in which she resides. 28 U.S.C. § 1332(a). However, if she lacks
permanent resident status, her citizenship would be considered diverse from that of all the defendants. Id.
§ 1332(a)(2). Second, Kuwait has submitted an answer in which it claims to be a foreign state within the
meaning of 28 U.S.C. § 1603. If Kuwait is correct, plaintiff may have an independent basis for jurisdiction over
Kuwait. See 28 U.S.C. § 1330. If Pourzandvakil could show subject matter jurisdiction over Kuwait without
resort to diversity of citizenship, then Kuwait's residence in New York may not be relevant to the issue of
whether this court has diversity jurisdiction under Section 1332. Cf. Hiram Walker & Sons, Inc. v. Kirk Line,
877 F.2d 1508, 1511-1512 (11th Cir. 1989), cert. denied, 115 S.Ct. 1362 (1995) (holding that the joinder of a
non-diverse defendant sued under federal question jurisdiction did not destroy diversity as to the remaining
defendant). Here, however, plaintiff's complaint is subject to so many other meritorious defenses -- including
complete failure to state a cause of action -- that an amendment would be an exercise in futility. Additionally,
plaintiff has not requested permission to amend, proffered an amended pleading, or indeed even supplied an
affidavit stating her residency status or alleging a basis of jurisdiction over her claims against Kuwait other
than diversity under 28 U.S.C. § 1332.

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7

J.C. Penney also submits an affidavit requesting dismissal on this basis and others, but has not filed or served
a notice of motion.

8

Former Supreme Court Justice Harry A. Blackmun.

9

We note also that plaintiff has not requested leave to amend in this action.

End of Document

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