Miller v. Primo et al

Filing 13

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Magistrate Judge Lovric's Report-Recommendation (Dkt. No. 8 ) is ADOPTED. It is further ORDERED that Plaintiff's Amended Complaint (Dkt. No. 6 ) is DISMISSED in its entirety pursua nt to 28 U.S.C. § 1915(e). It is further ORDERED that Plaintiff's Amended Complaint is DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND as against Defendants Merrick and Murphy in their individual and official capacities. It is further O RDERED that Plaintiff's Amended Complaint is DISMISSED WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND as to Defendants Primo, DeRue, and Domachowski in their individual and official capacities, pursuant to 28 U.S.C. § 1915(e)(2)(B). It is fu rther ORDERED that if Plaintiff files a timely amended complaint, it shall be referred to Magistrate Judge Lovric for review. If Plaintiff fails to file a timely amended complaint, the Clerk is directed to close this case. It is further ORDERED that any amended complaint must be filed within thirty (30) days of the date of this Order. Any amended complaint must be a complete pleading which will replace the current complaint in total. It is further ORDERED that Plaintiff's "Notice" (Dkt. No. 10 ) and his submission filed on November 7, 2023 (Dkt. No. 12 ) are stricken from the docket and that Plaintiff's document titled "Support for Summary Judgment" (Dkt. No. 11 ) is DENIED as moot. Signed by Chief Judge Brenda K. Sannes on 11/14/2023. (Copy served upon pro se plaintiff via regular mail.) (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAISHAWN LAVON MILLER,
Plaintiff,

5:23-cv-1051 (BKS/ML)

v.
DAVID PRIMO, SARAH G. MERRICK,
PATRICIA DERUE, JEFFREY ALAN
DOMACHOWSKI, and KELLY MURPHY,
Defendants.
Appearances:
Plaintiff pro se
Daishawn Lavon Miller
Syracuse, NY 13206
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Daishawn Lavon Miller commenced this proceeding pro se under 42 U.S.C. §

1983, alleging numerous federal and constitutional violations that appear to stem from child
support proceedings. (Dkt. No. 1). Plaintiff also sought leave to proceed in forma pauperis
(“IFP”). (Dkt. Nos. 2, 7). Approximately one month after commencing this action, Plaintiff filed
an Amended Complaint. (Dkt. No. 6). This matter was referred to United States Magistrate Judge
Miroslav Lovric who, on September 29, 2023, granted Plaintiff’s application to proceed IFP and
issued a Report-Recommendation, recommending that Plaintiff’s Amended Complaint be
dismissed without prejudice and that leave to amend be granted in part and denied in part. (Dkt.
No. 8). Plaintiff was informed that he had fourteen days within which to file written objections to

the Report-Recommendation under 28 U.S.C. § 636(b)(1), and that failure to object to the
Report-Recommendation within fourteen days would preclude appellate review. (Id. at 10).
Plaintiff filed objections to the Report-Recommendation on October 10, 2023. 1 (Dkt. No.
9). For the reasons set forth below, the Report-Recommendation is adopted in its entirety.
II.

STANDARD OF REVIEW
This court reviews de novo those portions of the Magistrate Judge’s findings and

recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper
objection is one that identifies the specific portions of the [report-recommendation] that the
objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.
Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks omitted).
Properly raised objections must be “specific and clearly aimed at particular findings” in the
report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009). “[E]ven
a pro se party’s objections to a Report and Recommendation must be specific and clearly aimed
at particular findings in the magistrate’s proposal . . . .” Machicote v. Ercole, No. 06-cv-13320,
2011 WL 3809920 at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25, 2011) (citation
omitted). Findings and recommendations as to which there was no properly preserved objection
are reviewed for clear error. Id. To the extent a party makes “merely perfunctory responses,
argued in an attempt to engage the district court in a rehashing of the same arguments” in the

Plaintiff filed three documents in addition to his objections. On October 15, 2023, Plaintiff filed a “Legal Notice and
Demand Fiat Justitia, Ruat Coelum.” (Dkt. No. 10). On November 7, 2023, Plaintiff filed a document captioned
“prayer to the court under the grace of God for abatement, damages, setoff, and redemption.” (Dkt. No. 12). It is
unclear what relief, if any, Plaintiff seeks through these documents. Accordingly, they are stricken from the docket.
On October 25, 2023, Plaintiff filed a document titled “Support for Summary Judgment.” (Dkt. No. 11). To the extent
Plaintiff intends this document to be a motion for summary judgment under Federal Rule of Civil Procedure 56, it is
premature, and is, in any event, denied as moot in light of the dismissal of the Amended Complaint.
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original submission, the Court will only review for clear error. Ortiz v. Barkley, 558 F. Supp. 2d
444, 451 (S.D.N.Y. 2008).
III.

REPORT-RECOMMENDATION
At the outset, Magistrate Judge Lovric noted that the Amended Complaint was “difficult

to decipher” and did not provide “sufficient factual information” regarding the claims Plaintiff
sought to assert against Defendants. (Dkt. No. 8, at 2). However, as best as Magistrate Judge
Lovric could discern, the Amended Complaint appeared to “allege that Defendants refuse to
terminate Plaintiff’s child support obligation,” and appeared to seek termination of the child
support order, reimbursement, and damages for amounts garnished from his wages. (Id. at 2
(citing Dkt. No. 6, at 7)).
Magistrate Judge Lovric recommended dismissal on three grounds. First, Magistrate
Judge Lovric found that the Amended Complaint was “largely incomprehensible,” failed to
“provide fair notice of the claims [Plaintiff] attempt[ed] to assert,” and thus was “not acceptable
under Rules 8 and 10 of the Fed. R. Civ. P.,” noting that “Plaintiff’s Section 1983 claims against
Defendants are entirely unclear.” (Id. at 7).
Second, in the alternative, Magistrate Judge Lovric found that the Amended Complaint
failed to allege the personal involvement of any Defendant, a necessary element of a § 1983
claim, see Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (explaining that “a plaintiff
must plead and prove ‘that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution’” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009))), and recommended that the Amended Complaint be dismissed for failure “to state a
claim upon which relief may be granted,” (Dkt. No. 8, at 7–8). As Magistrate Judge Lovric
explained:

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[T]he Amended Complaint includes the following allegations
related to actions taken by Defendants, in full:
David Primo, Jeffrey Alan Domachowski, Sarah Merrick,
and Patricia DeRue are all in breach of trust for refusing
appointment by me to settle the account and terminate the
unconditional bill of attainer they are refusing due to the
cooperative arrangement they have in order to provide Title
IV-D services. The form is child support and the substance
is securities because child support is not in the best interest
of the child or mother it’s in the states [sic] best interest.
These allegations fail to allege the personal involvement of any of
Defendants in a violation of Plaintiff’s rights.
(Id. at 8 (quoting Dkt. No. 6, at 4)).
Third, Magistrate Judge Lovric found dismissal warranted as to Defendants Primo,
Merrick, Domachowski, and DeRue, on grounds of immunity. (Id.). Specifically, Magistrate
Judge Lovric noted that according to the Amended Complaint Defendant Primo was the Chief
Clerk of Onondaga County Family Court, and entitled to quasi-judicial immunity, and, to the
extent Plaintiff sued Defendant Primo in his official capacity as “an arm of the New York state
court system,” he was “immune from suit pursuant to the Eleventh Amendment.” (Id. at 9–10).
Magistrate Judge Lovric found that to the extent Plaintiff sued Defendant Merrick, as the
Commissioner of Social Services-Economic Security, in connection with her enforcement of
Plaintiff’s child support obligations, Defendant Merrick was entitled to qualified immunity. (Id.
at 10–11). Magistrate Judge Lovric further found that, as support magistrate judges, Defendants
DeRue and Domachowski were entitled to judicial immunity, and, to the extent Plaintiff sued
these Defendants in their official capacities, any such claims were barred by the Eleventh
Amendment. (Id. at 11–13).
In addition, Magistrate Judge Lovric noted that the claims in the Amended Complaint
were “likely barred” by the Rooker-Feldman doctrine, the domestic relations exception to federal

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court jurisdiction, and that “[i]n the event that Plaintiff’s underlying state family court
proceeding remains pending,” the Younger doctrine may be implicated. (Id. at 7 n.5). However,
Magistrate Judge Lovric did not recommend dismissal under these doctrines.
IV.

OBJECTIONS
Although Plaintiff asserts a number of objections, only the following appear to concern

the findings in the Report-Recommendation. Plaintiff asserts that: (1) “there is not [sic] basis for
government involvement as I have lost the ability to shape decisions affecting my offspring and
there has been no record or harm, proof of neglect, or abandonment,” (Dkt. No. 9, at 1); (2) the
“Rooker-Feldman Doctrine is not plausible because the enforcement brings about constitutional
violations,” (id. at 2); (3) immunity is inapplicable “due to the hierarchy of law, whenever there
is a conflict with between the different levels of law, for example Federal and State, Federal
prevails see supremacy clause, the parties involved are mixing public with private,” (id.); (4)
“the parties involved” have failed to “take notice of” the change in Plaintiff’s “circumstances
they are all now aiding and abetting and colluding and conspiring to trespass on my estates, in
breach of trust” and in “violation of Bill of Rights . . . rights to privacy/religion,” (id. at 3); and
(5) the “parties involved are engaging in securities fraud” and have “refused [Plaintiff’s] tender
by special deposit . . . to settle account on behalf of the principal and close account,” (id.).
Finally, Plaintiff asserts that he is “a private citizen (citizen of Heaven) non US Citizen” and is
“not a enemy nor a friend of an enemy to the United States.” (Id.).
Other than Plaintiff’s challenge to Magistrate Judge Lovric’s immunity-based
recommendation and footnote on the Rooker-Feldman doctrine, none of Plaintiff’s objections are
aimed at a particular aspect of the Report-Recommendation. Plaintiff’s objection to Magistrate
Judge Lovric’s conclusions regarding immunity stems from Plaintiff’s claim that he is not “a
statutory citizen” and “the court in which [his] complaint stems from is not judicial in nature
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(child support) because judicial decisions are not being made in a quasi-judicial setting.” (Id. at
2). Courts regularly reject as frivolous claims by litigants asserting they are not subject to state or
federal authority. See, e.g., Robinson v. Fischer, No. 9:13-cv-1545, 2014 WL 1289611, at *5,
2014 U.S. Dist. LEXIS 44644, at *16 (N.D.N.Y. Mar. 31, 2014) (dismissing the sovereign
citizen claims as frivolous and for failure to state a claim when reviewing a pro se complaint).
And although there is authority for the proposition that an official acting outside the scope of his
or her authority may not be entitled to immunity, see, e.g., Levine v. Lawrence, No. 03-cv-1694,
2005 WL 1412143, at *9, 2005 U.S. Dist. LEXIS 11663, at *29 (E.D.N.Y. June 15, 2005)
(“[M]ost courts seem to agree that absolute quasi-judicial immunity should not extend to court
officers enforcing judicial orders if . . . the court officer exceeds the scope of that order . . . or
enforces it in an improper manner.”), even construed liberally, there are no allegations in the
Amended Complaint that suggest any Defendant was acting outside the scope of his or her
authority. Thus, Plaintiff’s objection regarding immunity is without merit.
Plaintiff’s objection to the application of the Rooker-Feldman doctrine is also unavailing
because even if Plaintiff is correct that it is inapplicable, Magistrate Judge Lovric did not
recommend dismissal on the basis the Rooker-Feldman doctrine. In this case, Magistrate Judge
Lovric did no more than reasonably note that such a doctrine might be applicable where, as here,
state court proceedings appear to be implicated. (Dkt. No. 8, at 7 n.5). Thus, Plaintiff’s objection
is without merit.
As discussed, none of Plaintiff’s other objections concerns any particular aspect of the
Report-Recommendation. Accordingly, the Court reviews the remainder of the ReportRecommendation for clear error, and having found none, adopts the Report-Recommendation in
its entirety.

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V.

CONCLUSION
For these reasons, it is
For these reasons, it is hereby
ORDERED that Magistrate Judge Lovric’s Report-Recommendation (Dkt. No. 8) is

ADOPTED; and it is further
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 6) is DISMISSED in its
entirety pursuant to 28 U.S.C. § 1915(e); and it is further
ORDERED that Plaintiff’s Amended Complaint is DISMISSED WITHOUT
PREJUDICE AND WITH LEAVE TO AMEND as against Defendants Merrick and Murphy
in their individual and official capacities; and it is further
ORDERED that Plaintiff’s Amended Complaint is DISMISSED WITHOUT
PREJUDICE AND WITHOUT LEAVE TO AMEND as to Defendants Primo, DeRue, and
Domachowski in their individual and official capacities, pursuant to 28 U.S.C. § 1915(e)(2)(B);
and it is further
ORDERED that if Plaintiff files a timely amended complaint, it shall be referred to
Magistrate Judge Lovric for review; and if Plaintiff fails to file a timely amended complaint, the
Clerk is directed to close this case; and it is further
ORDERED that any amended complaint must be filed within thirty (30) days of the
date of this Order. Any amended complaint must be a complete pleading which will replace the
current complaint in total; and it is further
ORDERED that Plaintiff’s “Notice” (Dkt. No. 10) and his submission filed on
November 7, 2023 (Dkt. No. 12) are stricken from the docket and that Plaintiff’s document
titled “Support for Summary Judgment” (Dkt. No. 11) is DENIED as moot; and it is further

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ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Dated: November 14, 2023
Syracuse, New York

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