Zavalidroga v. Madison County et al

Filing 17

DECISION AND ORDER: Based upon a de novo review of the portions of the # 14 Report-Recommendation to which plaintiff objected, the Report-Recommendation of Magistrate Judge Therese Wiley Dancks is accepted in whole. See 28 U.S.C. § 636(b)(1). It is ORDERED that the # 11 Amended Complaint is DISMISSED in its entirety except as to the Fourth, Eighth, and Fourteenth Amendment claims against Riley and Nowak arising out of plaintiff's conditions of confinement in the Madison County Jai l. It is further ORDERED that the claims against Eppolito, Mondrick, Cowles, the Madison County Sheriff's Department, and the Oneida City Police Department are DISMISSED with prejudice. It is further ORDERED that the § 1983 claim for civil conspiracy regarding Margaret Zavalidroga against John and Nancy Kish, Sarah Paul, Burgess, the Oneida City Hospital, Kopytowski, and all other defendants against whom plaintiff intended to assert the claim, is DISMISSED under the Rooker-Feldman doct rine. It is further ORDERED that the § 1983 claims for false arrest or imprisonment and malicious prosecution asserted against unidentified Madison County Sheriff's Department personnel, Burgess, and all other defendants against whom plaint iff intended to assert the claim, is DISMISSED without prejudice. It is further ORDERED that the claims against Madison County and the City of Oneida are DISMISSED with prejudice as to all claims dismissed under the Rooker-Feldman doctrine, and witho ut prejudice as to all claims dismissed under Heck v. Humphrey and claims arising out of plaintiff's conditions of confinement. It is further ORDERED that the claims against Meeker and Thompson are DISMISSED with leave to amend only as to plaint iff's claims arising out of his conditions of confinement. It is further ORDERED that the claims against Joshua Paul are DISMISSED with leave to amend. It is further ORDERED that the exercise of supplemental jurisdiction is declined over plainti ff's state law claims for false arrest or imprisonment, malicious prosecution, conversation, and slander. It is further ORDERED that Plaintiff will have thirty (30) days in which to file an amended complaint, should he choose, as to those claims which are being dismissed with leave to amend. In the event plaintiff submits an amended complaint including those claims which may now proceed and any other claims for which he has been granted leave to amend, the file will be referred back to Magistrate Judge Dancks for review of the amended complaint. Signed by Judge David N. Hurd on 7/6/2017.[Copy served upon pro se plaintiff via regular mail.](mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------TOMAS ZAVALIDROGA, individually and as
power of attorney and medical proxy of
Margaret Zavalidroga,
Plaintiff,
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5:17-CV-117
(DNH/TWD)

MADISON COUNTY; MADISON COUNTY
SHERIFF DEPT.; ALLEN RILEY, Sheriff;
JOSHUA PAUL, Deputy Sheriff; JONATHAN
NOWAK, Correction Officer; CITY OF ONEIDA;
ONEIDA CITY POLICE DEPT.; DAVID MEEKER,
Oneida Police Chief; PAUL THOMPSON, Acting
Oneida Police Chief; SARAH PAUL, Oneida
Patrolman; ROBERT L. COWLES, Oneida
Deputy Fire Chief; M. BURGESS, Oneida Police
Investigator; ONEIDA CITY HOSPITAL; ANNE
KOPYTOWSKI, RN; JOHN KLISH; NANCY
KLISH; ANTHONY EPPOLITO, Oneida City
Judge; and LYNN M. MONDRICK, Oneida Court
Clerk,
Defendants.
-------------------------------APPEARANCES:
TOMAS ZAVALIDROGA
Plaintiff pro se
P.O. General Delivery
Old Forge, New York 13420

DAVID N. HURD
United States District Judge

DECISION and ORDER
Pro se plaintiff Tomas Zavalidroga, individually and as power of attorney and
medical proxy of Margaret Zavalidroga, brought this civil rights action pursuant to 42 U.S.C.
§§ 1981, 1983, and 1985(3). On April 14, 2017, the Honorable T herese Wiley Dancks,
United States Magistrate Judge, advised by Report-Recommendation that plaintiff's
amended complaint (ECF Nos. 11 and 11-1) be dismissed upon initial review, except as to
plaintiff's Fourth, Eighth, and Fourteenth Amendment claims against defendants Riley and
Nowak arising out of plaintiff's conditions of confinement in the Madison County Jail;
plaintiff's amended complaint be dismissed as against defendants Eppolito, Mondrick, and
Cowles with prejudice on absolute immunity grounds; plaintiff's amended complaint be
dismissed as against the Madison County Sheriff's Department and Oneida City Police
Department with prejudice; plaintiff's § 1983 claim for civil conspiracy regarding Margaret
Zavalidroga be dismissed as against defendants John and Nancy Kish, Sarah Paul, Burgess,
the Oneida City Hospital, Kopytowski, and all other defendants against whom plaintiff
intended to assert the claim, for lack of subject matter jurisdiction under the Rooker-Feldman
doctrine; plaintiff's § 1983 claims for false arrest or imprisonment and malicious prosecution
be dismissed as against unidentified Madison County Sheriff's Department personnel,
Burgess, and all other defendants against whom plaintiff intended to assert the claim, without
prejudice under Heck; plaintiff's amended complaint be dismissed as against Madison
County and the City of Oneida with prejudice as to all claims dismissed under the
Rooker-Feldman doctrine, and without prejudice as to all claims dismissed under Heck and
claims arising out of plaintiff's conditions of confinement; plaintiff's amended complaint be
dismissed as against defendants Meeker and Thompson with leave to amend only as to
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plaintiff's claims arising out of his conditions of confinement; plaintiff's conditions of
confinement claims be dismissed as against Joshua Paul with leave to amend; and that the
exercise of supplemental jurisdiction be declined over plaintiff's state law claims for false
arrest or imprisonment, malicious prosecution, conversation, and slander.
Plaintiff submitted timely objections to the Report-Recommendation as well as
requested an extension of time to submit a "correction" to his objection. He then submitted
an amended objection after the deadline to submit objections expired on May 1, 2017. As
plaintiff is proceeding pro se and his submission was less than one week late and he did
submit a timely first round of objections as well as seek an extension of time, his additional
objections will be considered.
Based upon a de novo review of the portions of the Report-Recommendation to
which plaintiff objected, the Report-Recommendation is accepted in whole. See 28 U.S.C.
§ 636(b)(1).
Therefore, it is
ORDERED that
1. The amended complaint is DISMISSED in its entirety except as to the Fourth,
Eighth, and Fourteenth Amendment claims against Riley and Nowak arising out of plaintiff's
conditions of confinement in the Madison County Jail;
2. The claims against Eppolito, Mondrick, Cowles, the Madison County Sheriff's
Department, and the Oneida City Police Department are DISMISSED with prejudice;
3. The § 1983 claim for civil conspiracy regarding Margaret Zavalidroga against
John and Nancy Kish, Sarah Paul, Burgess, the Oneida City Hospital, Kopytowski, and all

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other defendants against whom plaintiff intended to assert the claim, is DISMISSED under
the Rooker-Feldman doctrine;
4. The § 1983 claims for false arrest or imprisonment and malicious prosecution
asserted against unidentified Madison County Sheriff's Department personnel, Burgess, and
all other defendants against whom plaintiff intended to assert the claim, is DISMISSED
without prejudice;
5. The claims against Madison County and the City of Oneida are DISMISSED
with prejudice as to all claims dismissed under the Rooker-Feldman doctrine, and without
prejudice as to all claims dismissed under Heck v. Humphrey and claims arising out of
plaintiff's conditions of confinement;
6. The claims against Meeker and Thompson are DISMISSED with leave to amend
only as to plaintiff's claims arising out of his conditions of confinement;
7. The claims against Joshua Paul are DISMISSED with leave to amend;
8. The exercise of supplemental jurisdiction is declined over plaintiff's state law
claims for false arrest or imprisonment, malicious prosecution, conversation, and slander;
and
9. Plaintiff will have thirty (30) days in which to file an amended complaint, should
he choose, as to those claims which are being dismissed with leave to amend. In the event
plaintiff submits an amended complaint including those claims which may now proceed and
any other claims for which he has been granted leave to amend, the file will be referred back
to Magistrate Judge Dancks for review of the amended complaint.
IT IS SO ORDERED.

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Dated: July 6, 2017
Utica, New York.

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